Flynn never pled guilty

It is big news concerning retired Lt. General Michael Flynn. An appellate court has sided with the government’s motion to dismiss the criminal charges against him.

While the rest of us rejoice that the rule of law seems to be prevailing in this matter, at long last, that the great injustice being perpetrated against Flynn and indeed against all of us has been at least temporarily stymied, we hear belligerent lost souls screaming out:

“But Flynn pled guilty.”

To which one should reply,

“No, he did not.”

The short explanation is that the statute requires materiality. As the DOJ pointed out, the false statement must be material to an investigation.

(And arguably only regarding a criminal one; non-criminal, counter-intelligence, investigations don’t have a criminal purpose, hence concepts of materiality would be problematic because they're speculative, since the purpose of the counter-intelligence investigation is unmoored to the criminal law.)

A good working equivalent of materiality in this context is “large enough to matter.”

Speaking more in the vernacular, the falsity of the statement must have been such as to have screwed up an investigation in an important way, in some way that mattered.

There weren’t any criminal investigations against or concerning Flynn. (Criminal includes espionage; spying. Espionage is a crime.) Non-existing investigations cannot be screwed up.

And therefore one cannot plea guilty to a non-crime.

(Yes, yes, such a plea might appear proper on its face, so that in some sense one could plead guilty to a non-crime. But the same argument undercuts the belligerent lost soul’s protest that Flynn had pled guilty. Sentence had not been passed, and it was at the very least procedurally permissible for the federal prosecutor to request dismissal. So if it’s procedurally possible to plead guilty to a non-crime, it’s procedurally possible to dismiss it before sentencing.)

In passing, we may note that many people who have pled guilty have later been found to have been innocent.

Another reason there really was no crime is again tied to the requirement of materiality. Flynn purportedly lied about what he had said on the telephone. If this is to be a crime, the lie must have materially “screwed up” an investigation. But the people to whom Flynn made the statements had the transcripts of what he had said on the phone. Their investigations could not have been materially screwed up by his statements (even if there had been any).

Indeed, the questioning of Flynn without an underlying criminal investigation in order to trap him was a perversion. A perversion of the statute’s purpose, the purpose being to protect the information gathering process. (See this University of Chicago law review article which describes such entrapment as perversion, p. 1278)

The fundamental principle of Western law is that statutes are to be interpreted according to their purpose. (Even the dynamic theory of statutory interpretation requires interpretation in light of societal and legal context.)

But the Soviet rule of interpretation was exactly opposite. Fundamentally untied to precedent, unrestrained and arbitrary, it sought only to impose order (qua the silence of the grave) as convenient to those in power.

Sound familiar?

Those who bent and perverted our system of justice to get Flynn committed the great sin of legal perversion. Soviet-style.

They must receive their just reward.

Tadas Klimas is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA). He is also a former law professor and is the author of Comparative Contract Law.

Photo illustration by Monica Showalter with use of screen shot from shareable CNN video on YouTube.

It is big news concerning retired Lt. General Michael Flynn. An appellate court has sided with the government’s motion to dismiss the criminal charges against him.

While the rest of us rejoice that the rule of law seems to be prevailing in this matter, at long last, that the great injustice being perpetrated against Flynn and indeed against all of us has been at least temporarily stymied, we hear belligerent lost souls screaming out:

“But Flynn pled guilty.”

To which one should reply,

“No, he did not.”

The short explanation is that the statute requires materiality. As the DOJ pointed out, the false statement must be material to an investigation.

(And arguably only regarding a criminal one; non-criminal, counter-intelligence, investigations don’t have a criminal purpose, hence concepts of materiality would be problematic because they're speculative, since the purpose of the counter-intelligence investigation is unmoored to the criminal law.)

A good working equivalent of materiality in this context is “large enough to matter.”

Speaking more in the vernacular, the falsity of the statement must have been such as to have screwed up an investigation in an important way, in some way that mattered.

There weren’t any criminal investigations against or concerning Flynn. (Criminal includes espionage; spying. Espionage is a crime.) Non-existing investigations cannot be screwed up.

And therefore one cannot plea guilty to a non-crime.

(Yes, yes, such a plea might appear proper on its face, so that in some sense one could plead guilty to a non-crime. But the same argument undercuts the belligerent lost soul’s protest that Flynn had pled guilty. Sentence had not been passed, and it was at the very least procedurally permissible for the federal prosecutor to request dismissal. So if it’s procedurally possible to plead guilty to a non-crime, it’s procedurally possible to dismiss it before sentencing.)

In passing, we may note that many people who have pled guilty have later been found to have been innocent.

Another reason there really was no crime is again tied to the requirement of materiality. Flynn purportedly lied about what he had said on the telephone. If this is to be a crime, the lie must have materially “screwed up” an investigation. But the people to whom Flynn made the statements had the transcripts of what he had said on the phone. Their investigations could not have been materially screwed up by his statements (even if there had been any).

Indeed, the questioning of Flynn without an underlying criminal investigation in order to trap him was a perversion. A perversion of the statute’s purpose, the purpose being to protect the information gathering process. (See this University of Chicago law review article which describes such entrapment as perversion, p. 1278)

The fundamental principle of Western law is that statutes are to be interpreted according to their purpose. (Even the dynamic theory of statutory interpretation requires interpretation in light of societal and legal context.)

But the Soviet rule of interpretation was exactly opposite. Fundamentally untied to precedent, unrestrained and arbitrary, it sought only to impose order (qua the silence of the grave) as convenient to those in power.

Sound familiar?

Those who bent and perverted our system of justice to get Flynn committed the great sin of legal perversion. Soviet-style.

They must receive their just reward.

Tadas Klimas is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA). He is also a former law professor and is the author of Comparative Contract Law.

Photo illustration by Monica Showalter with use of screen shot from shareable CNN video on YouTube.