Should law enforcement conduct morality tests on Americans?

Stefani Rerynolds

More than a quarter of a century ago, I had a client who had bribed a building inspector. Unbeknownst to him, the building inspector was cooperating with the government and wearing a wire. So the bribe was caught on tape.

Shortly thereafter, my client — who I was not yet representing — was summoned in front of a grand jury and asked whether he bribed the building inspector. Unaware that the tape existed, he responded “no.” He was then charged with lying to a grand jury. 

It was at that time that I developed the argument that I have recently put forward in the Michael Flynn case — that it is not a proper function of the grand jury to ask a question for the sole purpose of giving the suspect an opportunity to lie.

{mosads}The function of the grand jury is to obtain information that it does not already know. But, in this case, it already knew that my client had paid the bribe, because it had a recording of the transaction. So the only purpose of the question was to trap the unwary suspect into lying to a federal grand jury, thus turning a state crime into a federal crime.

Of course, he shouldn’t have lied. But my point was that neither should the prosecutor have asked the question for the sole purpose of giving the suspect an opportunity to lie.

I thought it was a good argument then, and I think it is a good argument now. That case was ultimately resolved by a plea bargain, but I believe that the probationary sentence my client received was influenced, at least in part, by the judge’s sympathetic view of my argument.

Flash-forward to the Michael Flynn case. There are considerable similarities, and some differences.

The similarity is that the FBI already had a tape that conclusively proved the facts that Flynn denied when speaking to the FBI. As with my client, the only conceivable purpose the FBI had in asking the question was to give him an opportunity to lie. He took that opportunity and has paid a heavy price for doing so.

The differences between the two cases are that a grand jury was not involved in the Flynn case; it was only the FBI. And Flynn was not under oath. Quite the opposite: He was lulled into a relaxed state by FBI agents who told him he didn’t need a lawyer and that this was an informal series of questions that did not require the involvement of White House counsel or justice department lawyers — just a bunch of guys chatting about the campaign.

Well, Flynn, who should have known better, fell for it, and told a lie he had no good reason to tell. Unlike my client, who lied to cover up an illegal act of bribery, Flynn lied to cover up a perfectly legal encounter with a Russian diplomat.

The question I pose in both cases is whether it is a proper function of prosecutors to conduct morality tests — to give suspects an opportunity to lie or tell the truth in response to questions whose answers are already known with provable certainty by those asking the question.

{mossecondads}Although reasonable people can disagree, civil libertarians should be wary of giving the government the power to test the morality of citizens, with criminal consequences.

I am confident that if the shoe were on the other foot — if Hillary Clinton had been elected president and this tactic were being used against her former national security adviser — many civil libertarians would be condemning this tactic, as they did when a similar tactic was used to elicit lies from President Bill Clinton. But fair-weather civil libertarians tend to have different views when questionable tactics are directed against their political enemies than when they are directed against their political friends.

Because I disapprove of the use of this tactic in the Flynn case, I have focused on the statutory elements of the crime Flynn was accused of and pleaded guilty to — that it is not a crime merely to lie to the FBI; it becomes a crime only when that lie is material. Although some critics of my view have disputed my claim that it is not a crime to lie unless that lie is material, all one has to do is look at the actual words of the statute: “Makes any materially false … statement.” 

The next question, and the one I have posed in my writings and TV appearances, is whether a lie should be deemed material if law enforcement already had conclusive proof of the truthful answer — in this case, tape recordings of the meetings Flynn denied having. That is a jury issue, and before a person can be convicted of violating the law, a unanimous jury must find beyond a reasonable doubt that the lie was material to the investigation.

In my experience, it is certainly possible that some jurors might well have a reasonable doubt whether, under the circumstances of this case, Flynn’s lie was material. As I’ve written in my articles, that is an issue not only for jurors but for all civil libertarians and, indeed, for all Americans.

Yet, I have been mocked for even raising this question by the “get-Trump-at-any-cost” media brigade.

I will not be cowed by these partisan critics. I will continue to make the civil libertarian argument that the government should not be testing the morality of its citizens by asking questions to which it already knows the answer and has irrefutable evidence.

Today, that tactic is being used against Michael Flynn. Tomorrow, it might be used against you or a member of your family. Think hard about whether this is a law enforcement tactic that should be encouraged.

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.

Tags Bill Clinton FBI Grand jury Hillary Clinton

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