Trump's remaking of the judicial system
Alan Dershowitz: Did Michael Flynn lie? Or did the FBI act improperly?
The media is asking the wrong question about the Michael Flynn case. They are asking whether Flynn lied or the FBI acted improperly, as if the answers to those two questions are mutually exclusive. The possibility that both are true, in that Flynn did not tell the truth and that the FBI acted improperly, is not considered in our hyper partisan world where everyone, including the media, chooses a side and refuses to consider the chance that their side is not perfectly right and the other side not perfectly evil.
The first casualty of hyper partisanship is nuance. So when nuance is condemned as being insufficiently partisan, truth quickly becomes the next casualty. Flynn, during his brief time as national security adviser to President Trump, told FBI agents untruths that are contradicted by hard evidence. Why he did that remains a mystery because, with his vast experience in intelligence gathering, he must have known that the FBI had hard evidence of the conversations he denied having with a Russian diplomat. Be that as it may, this reality does not automatically exclude the possibility that the FBI acted improperly in eliciting untruths from him.
The FBI knew the truth. They had recordings of the conversations. Then why did they ask him whether he had those conversations? Obviously, not to learn whether he had them but, rather, to give him the opportunity to lie to federal agents so that they could squeeze him to provide damaging information against President Trump. If you do not believe me, read what Judge T.S. Ellis III, who presided over the Paul Manafort trial, said to the prosecutors: "You do not really care about Mr. Manafort's bank fraud. What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment."
Ellis continued: "This vernacular to 'sing' is what prosecutors use. What you have got to be careful of is that they may not only sing, they may compose." Experienced criminal lawyers have seen this phenomenon at work. Most judges, many of whom were former prosecutors, have also seen it. But few have the courage to expose it publicly as Ellis did. Judge Emmet Sullivan of the District of Columbia Court also has expressed concern regarding federal prosecutorial practices in the investigation.
Defenders of the tactics used by special counsel Robert Mueller argue that his potential witnesses are generally guilty of some crime, such as lying to FBI agents, and that may well be true. But they are targeted not because of what they may have done. They are targeted for what they may know about what the real target may have done. Then they, and their relatives who may also be complicit, are threatened with imprisonment and bankruptcy unless they plead guilty and cooperate with prosecutors.
So the real question, which transcends the Flynn, the Manafort, and even the Trump investigations, is whether these tactics should be deemed acceptable to use in our justice system. Is it the proper role of law enforcement to conduct criminal morality tests to determine whether citizens will tell the truth or lie when given the opportunity to do either by FBI agents? Is it proper to target individuals for such tests for the purpose of pressuring them into becoming witnesses against the real target?
These are important questions for all citizens who care about civil liberties and prosecutorial abuses. They should not be addressed in a partisan manner. Instead, they should be answered by reference to the "shoe on the other foot" test. How would liberal Democrats react if those or similar prosecutorial tactics were being used against a president Hillary Clinton? I know the answer because I have seen how liberal Democrats reacted when President Bill Clinton was being investigated and impeached. The shoe was, indeed, on the other foot. Some of the same liberal Democrats, who today are justifying everything Mueller is doing, expressed outrage when the special prosecutor in the Clinton case employed similar tactics. Nor did all conservative Republicans pass the "shoe on the other foot" test as many applauded these tactics when directed against Democrats.
So back to the question of whether citizens who care about civil liberties should favor the tactics used by the FBI against Flynn. I believe the answer should be no. The function of law enforcement is to uncover past crimes, not to provide citizens the opportunity to commit new crimes by testing their veracity. There may be extraordinary situations, such as prevention of mass casualty terrorism, that justifies the use of highly questionable tactics but, absent such extraordinary circumstances, FBI agents and prosecutors should not deliberately provide citizens the opportunity to commit federal crimes in order to turn them into government witnesses.
When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed "material" to the investigation, because the FBI already knew the truth. The FBI should not discourage the suspect from having his lawyer present during the questioning, if a false answer will subject him to criminal liability. Even noble ends do not justify ignoble means, and some of the means used by the special counsel have, indeed, been ignoble.
NOTE: This post has been updated from the original to clarify that, already knowing the truth, the FBI gave Flynn the opportunity to lie to a federal agent to squeeze him for other information.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of "Trumped Up: How Criminalizing Politics is Dangerous to Democracy" and "The Case Against Impeaching Trump." He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.