The Winning Argument for Gen. Flynn
In my last post, I discussed five arguments I often see made in behalf of Gen. Flynn that don’t hold water, either because they are contrary to established law or because they take a skewed or insufficiently documented view of the facts of his case. I now want to outline the one argument that should, and will, win the case for him, and upon which the Justice Department’s motion for dismissal should be granted.
It can be summarized in one sentence: The prosecution should be dismissed because it was rooted in underhanded and disreputable behavior by the government so frequent, and so far short of the standards a free people have the right to expect, as to amount to a stain on the prosecution function and, more broadly, the administration of justice.
Just ask yourself a few questions. If Flynn were your father or brother, is this how you would want the FBI to behave? To pre-select him as a defendant and then stage an interview for the purpose of making a prosecution possible? To evade the normal protocols for interviews of this nature (i.e., with White House personnel) so as to circumvent the scrutiny of the Justice Department’s leadership? To tell him that he doesn’t really need a lawyer when he actually needs one big time? To keep the investigation going after the line agents had concluded it should be closed?
None of that is illegal. But there are standards and protocols of behavior, some written down and some just understood, that the FBI typically follows and ought to follow. One after another of those protocols got brushed aside here, and they got brushed aside for a reason — political animus to the incoming administration — particularly destructive to the rule of law as we would like to understand it.
This prosecution could have been continued to sentencing; nothing forced the Justice Department to move to dismiss. And the available evidence certainly appears to show that Flynn was less than truthful in relating to the FBI interviewer the extent of his prior contacts with the Russian ambassador. But the law understands that, while the ability to demand the truth is extremely important, there are other values of at least equal rank. This is why, for example, we have the doctrine prohibiting selective and vindictive prosecution. It’s not that we think the defendant didn’t do it. It’s that, even when we know he did, there are more important interests in the long run about the kind of power we should give prosecutors and how we want that power to be cabined.
Ordinarily, prosecutorial power is and should be sweeping. Prosecutors are not dealing with Mr. Nicey, by and large. Crime endangers us all and, when growing by leaps and bounds as it was from the mid-Sixties to the early Nineties, becomes a blight on civic life itself. But there are limits on government power rooted in commonly held views about the kind of country we want, and in particular, the kind of prosecutors and police we want. To give two additional examples: If a jury has been selected based on a prosecutor’s racially discriminatory strikes against African Americans, the defendant’s conviction cannot stand no matter how guilty he is. If the police obtain important evidence by forcing it from the defendant’s lips, his conviction cannot stand, again no matter how guilty he is. For a long time, these values, together with the expectation of honest and straightforward behavior from the people to whom we have given so much power, have been, not merely part of our law, but part of our culture. They are an important component of what we understand a free country to be.
The same people grousing today about Flynn’s supposedly getting a cushy deal have for decades spoken up for — nay, they have insisted upon — these same values. They are no less important now simply because Gen. Flynn was the appointee of a President they detest. If anything, precisely because of the degree of animosity the President (and by reflection, Flynn) engender, they are more important.
The bottom line is that, while the evidence of Flynn’s guilt is persuasive, and lying to the FBI is morally and legally wrong, this was not the kind of investigation American citizens want or should want. Dismissing a case rooted this thoroughly in political bile, from its beginning forward, is the right thing to do. It does not sully the Justice Department but instead begins its restoration.