Because You’re Not Flynn

The backchannels of criminal defense lawyers were on fire.

Have you? Never. You? Nope, can’t even imagine it.

The buzz was about the government’s motion to dismiss the information against Michael Flynn. It wasn’t even a defense motion, with the government conceding the point in response. It was the government’s motion. After a plea. After it prevailed against every attack. After General Flynn went through his plea allocution, under oath, admitting to the commission of the crime under 18 U.S.C. § 1001(a)(2).

Statements or entries generally

(a)  Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully–

(2)  makes any materially false, fictitious, or fraudulent statement or representation;

This is one of those despised crimes. Not a statement under oath, which would be perjury. Just a materially false statement. Government agents can lie to us with impunity, if not win an award because lying is an effective tool of law enforcement. But lie to a government agent, as in “it didn’t happen” or “I didn’t do it” and you’ve just become a federal criminal. With one proviso, that it has to be “material.”

This is the a piece of the perjury trap the government lies to create to make an easy case. They don’t go in blind, but possess of information they know, or believe they know, already. In the course of a series of otherwise innocuous questions, they slip a query in here and there to which they know the answer and create a crack to exploit, whether by detail, denial, complexity or confusion. And boom, they’ve got you.

Critically, nothing about the questioning impairs the government’s ability to enforce the law because they already knew, or at least believed they knew, the answer, so nothing you could say could give rise to anything that causes actual harm, actual damage. It’s a gotcha game, and they play it on their turf, in their way, under their control, and get a cheap and easy bust out of the deal.

We hate this law. We hate that it exists. We hate that it’s used against defendants. We hate that it’s used to get defendants to make a misstatement, and then leverage it to get the defendant to flip on someone they really want, because let’s face it, nobody really gives a damn about a § 1001 violation.

Why, then, is the criminal defense bar not dancing in the streets over the government’s motion to dismiss the information against Michael Flynn?

Mr.Flynn entered a guilty plea—which he has since sought to withdraw—to a single count of making false statements in a January 24, 2017 interview with investigators of the Federal Bureau of Investigation (“FBI”). See ECFNos.3-4. This crime, however, requires a statement to be not simply false, but “materially” false with respect to a matter under investigation. 18 U.S.C. § 1001(a)(2). Materiality is an essential element of the offense. Materiality, moreover, requires more than mere “relevance” or relatedness to the matter being investigated;it requires “probative weight,” whereby the statement is “reasonably likely to influence the tribunal in making a determination required to be made.” United States v. Weinstock, 231F.2d 699, 701(D.C.Cir. 1956)(emphasis added).

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings,ECF Nos. 181,188-190,1 the Government has concluded that the interview of Mr.Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr.Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.” Ex. 1 at 4, FBIFD-1057 “Closing Communication” Jan. 4, 2017 (emphases added). The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr.Flynn’s statements were material even if untrue.

If these weren’t already the sweetest words a criminal defense lawyer could read, it ends with the kicker, the cherry on top, the words that bring tears to the eyes of any criminal defense lawyer:

Moreover, we [do] not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

Hang on, I need to grab a tissue. Okay, I’m back. It’s not just that these words were uttered, or that they were uttered not by the defense, but by the prosecution, and not just by the prosecution but after a guilty plea, and not just after a guilty plea, but after ridiculous efforts to claim that the plea should be withdrawn because the defense was denied pre-charge Brady disclosures were crushed by Judge Emmett Sullivan. Yet, at the direction of the Attorney General of the United States, an independent prosecutor disclosed materials.

Whether they were Brady materials is largely a matter of interpretation and use. I take a very broad view of what constitutes Brady, as the use to which it is put, whether as guidance to a path for other exculpatory evidence or a means to impeach witnesses against the defendant, is as wide as one’s imagination. In diligent hands, almost anything can be Brady, short of the defendant’s confession. Or plea allocution.

To watch a defendant beat back a § 1001 charge, to watch a guilty plea forsaken, to see the AG, the big guy himself, become embroiled in the claimed mishandling of a prosecution and do something about it, and to see the government put in writing the words every defense lawyer argues against the government, should be a wondrous thing, a miracle, cause for celebration.

So why are the very people who should be thrilled by this bizarre turn of events not shouting with glee? Because it won’t help them. It won’t help their clients. It won’t help me or you. Because we’re not Flynn.

It will be curious, fun even, to see what happens next. If Flynn’s lawyer can control her worst impulses, she will do no more than join in the motion, one line response at most. And then it’s in the hands of Judge Sullivan, who is not regarded as a shrinking violet. While there may be no precedent for the government’s motion here, there is precedent for judges rejecting post-conviction motions by progressive prosecutors in state courts.

Perhaps Judge Sullivan will require the government to prostrate itself, admit in brutal and horrible detail, how it abuses defendants to make its § 1001 cases. Perhaps we can all watch as the foundation upon which the government’s games and lies to make anyone it wants into a criminal crumbles before our very eyes. Perhaps Judge Sullivan, after forcing the government to humiliate itself, will purse his lips, lift one eyebrow, and softly, sweetly utter “Denied.” Just as judges have always done when the defendant before the court isn’t Michael Flynn.