Lying to the cops should not be a crime
Martha Stewart and Michael Flynn have something in common. Both were nearly ruined for lying to the cops.
In Stewart's case, she was accused of insider trading for accepting the recommendation of her broker to sell some stock. In doing so, she avoided a loss that was paltry by her standards: less than $50,000.
She was acquitted on the charge that her stock sale was illegal but was convicted on charges that she had lied to federal investigators about the circumstances of it.
For that, she served time in a federal prison, and her media empire was nearly destroyed. She rebuilt her companies, and today she's once again the crème de la crème of homes and gardens.
Stewart's decorating style is not my style, mind you, but readers who've seen my homes will know that's a compliment to her.
In Flynn's case, the FBI wanted to bring a case against the new president for criminal treason. Only one thing was missing: evidence of treason.
The FBI figured that Flynn, the president's new national security adviser, might have some dirt on the president. The agents just needed some leverage to get him to dish it. So two FBI agents casually dropped in to see Flynn in his White House office. Without informing him that he was under investigation and without suggesting he may wish to consult his lawyer, they asked about his phone calls with the Russian ambassador.
Documents unearthed only recently from the FBI files show that the FBI's goal all along was not to gather information about the phone calls. Agents had eavesdropped on the phone calls and already knew there was nothing illegal or even improper in them. Rather, their goal was to trick Flynn into saying something that might be construed as a lie. Lying to the cops is a crime.
The FBI plotted to trick a man they knew was innocent to lie, prosecute him for lying, and use the prosecution to pressure him into becoming a witness for them in the treason case they were conjuring up against the president.
They failed. According to their own report, Flynn didn't lie about the calls. That's no surprise, since Flynn knew from his earlier work as Obama's director of the National Intelligence Agency that phone calls with the Russians are routinely listened in on. He knew he couldn't lie, and he didn't.
But these feds are indefatigable. With some help from their bosses, they rewrote their report to twist Flynn's words into a lie (though even the rewrite is ambiguous).
The FBI didn't record its office conversation with Flynn, so it was free to say he said whatever the FBI wanted.
Armed with their rewritten report, they indicted Flynn — not for anything he did or said in those phone calls, but for purportedly lying to the FBI agents about them. Faced with crushing legal bills (Flynn was a career army officer, not a fashion mogul) and the prosecutors' threat to bring his son into the case, he agreed to a plea bargain.
Even with Flynn's cooperation, the FBI was unable to build a treason case against the president.
In a bizarre twist, a career U.S. attorney in the Justice Department recently determined that the case against Flynn was wrong all along. The Justice Department has moved to dismiss it. Such motions are routinely granted by judges. A judge has no power to force a prosecutor to prosecute.
But in yet another extraordinarily bizarre development, the presiding judge has invited public comment on this routinely granted motion and has appointed a non-party to the case to argue against it. He has openly mused that perhaps Flynn should be prosecuted for perjury, this time for entering a guilty plea in his plea bargain about lying to the FBI when in fact he did not lie.
(This creative judge is a Clinton appointee who went to a law school that's only three letters from "Harvard," called "Howard.")
Flynn is damned either way. If he lied to the FBI, then he's guilty of lying to the FBI. If he didn't lie to the FBI, then he's guilty of lying to the judge in saying in his plea bargain that he did. Either way, it's jail time.
This modern American jurisprudence would shiver the spine of Franz Kafka.
Where does it all end? Imagine you're at the airport security check, and a TSA goon asks if you have any fluids greater than 100 milliliters. (Not that they have the foggiest notion what a milliliter is.) You say no.
They check your carry-on and find a little hip flask of single malt medicine to ease the pain that they and their comrades routinely and gladly inflict on you every time you fly. They also recognize your name as a writer who is sometimes critical of the government and has even been known to refer to TSA goons as "goons."
Your trip is now detoured for five to ten at the federal Supermax.
You laugh, but in my hypothetical example, at least you did violate the regulation against bringing fluid aboard an airplane. In Stewart's and Flynn's cases, they violated no laws except the law against lying to the cops.
I call BS. The American rule is innocent till proven guilty, not innocent till they can trick you into lying to the cops.