Five Bad Arguments for Gen. Flynn

In what is now old news, the Justice Department has moved to dismiss the prosecution of Gen. Michael Flynn  —  even though Flynn pleaded guilty months ago  —  because the Department has concluded that the prosecutors’ and the FBI’s behavior leading up to the decision to charge him were tainted with improper political motives, and were in their own right often underhanded if not outright dishonest.

In my view, the Department’s argument is well-founded.  Its motion should and will be granted, although when and by whom is not clear.  In a later post, I will set out the case for granting it.  Still, there have been a number of erroneous arguments made for Flynn, and I think they need to be called out:
—  Flynn was coerced into admitting something he didn’t do.

Well, no.  Flynn admitted to lying to the FBI about his conversations with the Russian ambassador about Russia’s possible response to American sanctions.  According to all available sources, that admission was correct.  Flynn did have the conversation he denied having.  That is what the government’s present dismissal motion suggests (although in haec verba it remains agnostic on the question of Flynn’s truthfulness), and it’s what Flynn acknowledged, verbally and in writing, when he entered his plea.  Defense counsel (at that time, from the prominent firm of Covington&Burling) did not object, and, after carefully following the requirements of Rule 11, Fed. R. Crim. P., the district court  —  which was anything but eager for Flynn to go forward with his plea  —  found that Flynn’s admission furnished a factual basis to accept it.

The claim that Flynn falsely admitted guilt because of prosecutorial extortion is mostly just a re-tread of of the “prosecutors-are-thugs” narrative that’s been making the rounds of the dead-ender defense bar for years.  Of course there might be extremely rare instances when that is true, just as there are rare instances known to every prosecutor’s office of the local vagrant’s making his weekly appearance to confess to shooting McKinley.  But the notion that it’s routine or anything close is malarkey.

I was a federal prosecutor for about 25 years, and not once in that time did I handle a case in which there was any realistic doubt that the defendant entering a plea did what he was charged with doing.

To be sure,  there is plenty of dissembling that goes on in court  —  almost all of it, in my experience, consisting of defendants falsely claiming not to have done what they most certainly did, not vise versa.

—  The agent interviewing Flynn withheld Miranda warnings.

No warnings were required; Miranda’s rules apply only to custodial interrogation.  Flynn was interviewed in his White House office.

That said, there was something seriously amiss with the agent’s advice to Flynn, which was that he didn’t need a lawyer.  Agents cannot properly give legal advice to interview subjects, and if they were to do so, at least the advice should be honest, which this certainly was not.  The interview was a trap to get Flynn prosecuted or fired (something that came out in recently revealed FBI emails), and Flynn needed a lawyer big time.  Those who oppose the government’s present dismissal motion very seldom mention this appalling FBI misconduct.

—  During the negotiations that led to Flynn’s plea, the government withheld Brady material.

In United States v. Ruiz, 536 U.S. 622 (2002), Justice Breyer, writing for a unanimous Court, held that Brady is a trial right and that the defendant has no right during plea negotiations to the production of impeachment material (an important form of exculpatory evidence).  Over the last 18 years, a number of appellate courts (not including the DC Circuit so far as I know) have considered whether other forms of exculpatory evidence must be disclosed at the negotiation stage, and, on the reasoning of Ruiz, a majority have decided that it does not.

Again, I must lodge a caveat.  Even though open file discovery is not a legal requirement, I always thought it should be provided to defense counsel from the getgo.  The reason for this is simple.  Despite what we often hear from more cynical quarters, criminal litigation is not a game with moves and counter-moves and all that.  At least from the government’s point of view, it is a quest to set out the truth and then let the tribunal decide as it be advised.  That is best served by open file discovery (except, of course, when such discovery will reveal the identity and address of the chief witness, who will promptly become the assassination target of the defendant and/or his gang).

—  The government was abusive and overbearing by threatening to charge Flynn’s adult son if Flynn did not agree to the plea bargain.

Like the Miranda claim, this argument is baseless.  It has been rejected by every federal appellate court to which it has been presented.  One of the most prominent cases was the Jonathan Pollard case, in which the DC Circuit wrote:

Pollard’s more substantial involuntariness argument is that wired pleas are unconstitutional. The Supreme Court has specifically reserved judgment on “the constitutional implications of a prosecutor’s offer during plea bargaining of adverse or lenient treatment for some person other than the accused.” Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978) (emphasis in original). The circuits that have considered the question, however, while occasionally expressing distaste for the practice, have uniformly agreed that it does not, per se, offend due process or the privilege against compulsory self-incrimination. See United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990) (citing cases from First, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits), cert. denied, ___ U.S. ___, 111 S.Ct. 957, 112 L.Ed.2d 1045 (1991).

We agree with our sister circuits that plea wiring does not violate the Constitution. The question, of course, is whether the practice of plea wiring is so coercive as to risk inducing false guilty pleas. See Bordenkircher, 434 U.S. at 364 n. 8, 98 S.Ct. at 668 n. 8. To say that a practice is “coercive” or renders a plea “involuntary” means only that it creates improper pressure that would be likely to overbear the will of some innocent persons and cause them to plead guilty. Only physical harm, threats of harassment, misrepresentation, or “`promises that are by their nature improper as having no proper relationship to the prosecutor’s business ( e.g., bribes)'” render a guilty plea legally involuntary. Brady v. United States, 397 U.S. 742, 750, 755, 90 S.Ct. 1463, 1470, 1472, 25 L.Ed.2d 747 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957) (en banc), rev’d on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958)). Almost anything lawfully within the power of a prosecutor acting in good faith can be offered in exchange for a guilty plea. No constitutionally impermissible compulsion arises, for instance, when a defendant is forced to choose between the possibility of a mandatory minimum sentence of ten years in prison if he goes to trial or a suspended sentence on a reduced charge if he pleads. See Brady, 397 U.S. at 751, 90 S.Ct. at 1470. In Brady, the Supreme Court held that “a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.” Id. at 755, 90 S.Ct. at 1472. Even where the defendant continues to maintain his innocence, having to face the death penalty as the price of trial does not invalidate a guilty plea, as long as the record contains adequate evidence of actual guilt. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167-68, 27 L.Ed.2d 162 (1970).

We can understand how it might be thought that a threat of long imprisonment for a loved one, particularly a spouse, would constitute even greater pressure on a defendant than a direct threat to him. Whether one could generalize as to that proposition depends, we suppose, on one’s view of human nature. But it does not seem to be the sort of widely-shared intuition upon which a constitutional rule should be based. We must be mindful, moreover, that if the judiciary were to declare wired pleas unconstitutional, the consequences would not be altogether foreseeable and perhaps would not be beneficial to defendants. Would Pollard, for instance, have been better off had he not been able to bargain to aid his wife? Would his wife have been better off? Would the bargaining take place in any event, but with winks and nods rather than in writing?

Nor do we believe that Mrs. Pollard’s medical condition makes an otherwise acceptable linkage of their pleas unconstitutional. The appropriate dividing line between acceptable and unconstitutional plea wiring does not depend upon the physical condition or personal circumstances of the defendant; rather, it depends upon the conduct of the government. Where, as here, the government had probable cause to arrest and prosecute both defendants in a related crime, and there is no suggestion that the government conducted itself in bad faith in an effort to generate additional leverage over the defendant, we think a wired plea is constitutional. See, e.g., Politte v. United States, 852 F.2d 924, 930 (7th Cir. 1988) (emphasizing “good faith prosecution”); Harman v. Mohn, 683 F.2d 834, 837 (4th Cir. 1982) (probable cause and good faith); United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979) (same). Once the government had probable cause to prosecute Mrs. Pollard and had obtained a valid indictment, it was entitled, despite her illness, to prosecute her fully — or to offer lenience for her in exchange for Pollard’s plea. See United States v. Clark, 931 F.2d 292, 294-95 (5th Cir. 1991) (plea offered by man, who maintains his innocence, in order to help his “sick, pregnant and innocent” wife held not involuntary); Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir. 1988) (threat to prosecute validly indicted pregnant woman does not constitute unconstitutional coercion of her husband).

At minimum, Pollard argues, wired pleas raise special dangers of coercion, so that a district court faced with such a plea must undertake a more searching inquiry into the voluntariness of the plea than would normally be required. See, e.g., Nuckols, 606 F.2d at 569. Even if that were so, we are satisfied that the district court adequately discharged its obligations here. The colloquy between the court and Pollard was so extensive that there could be little doubt about Pollard’s willingness to plead. Pollard had several opportunities to confess any misgivings to the judge, but he never gave the slightest hint that his plea was anything other than voluntary. In fact, Richard Hibey, who was Pollard’s attorney at the time, brought to the court’s attention at the end of the plea proceeding a document captioned “Waiver of Trial by Jury,” which Pollard had executed. And when counsel did so, he specifically stated, “I think the Court has taken care of [the waiver] under Rule 11.

Again, there is a caveat.  If there were an agreement, or even just the suggestion of an agreement, not to indict Flynn’s son in exchange for Flynn’s guilty plea, that would have to be disclosed to the court at the Rule 11 proceeding.  I have seen some sources claiming that there was a wink-and-a-nod deal, but not enough so that I can be sure.  If there was, and the prosecutors did not disclose it, that would be yet another impropriety calling further into question their overall behavior in this case (not that any additional impropriety is needed in order to have grounds to grant the government’s dismissal motion).

—  The slick, deceptive and underhanded treatment given Flynn is routine and pervasive in federal criminal investigations, and the motion to dismiss should be granted to “fire a warning shot” the government will finally notice. 

This is another tired warhorse out of the ideological defense bar’s barn.  It’s simply not true.  The prosecutorial misconduct in this case was produced by something very unusual, to wit, the illicit and agenda-driven desires of the line agents’ politically-appointed superiors.  The actions of the line agents themselves  —  the ones who in the great run of cases drive the train  —  seem to have been unobjectionable.  They said early on the Flynn did not seem deceptive in his interview, that they had developed no adverse information on him, and that the investigation should be closed.

The problem here was not that routine procedures were followed.  The problem was that they weren’t.  And the problem that makes the government’s current motion to dismiss not merely legally correct but honorable, and indeed imperative, is that the departures from routine procedure were brought about by the agent most noxious to a criminal justice system a free people should demand:  It was brought about by political animus.