DOJ dropping case against Michael Flynn

[UltraVires]

@iiandyiiii

Lying to the FBI is a crime, full stop.

No, it is not.

[Whack-a-Mole]

@UltraVires

No, it is not.

It seems it mostly is with a few exceptions. Below is a lot of copypasta but it is from a government site and in the public domain and I don’t want someone accusing me of omitting an important bit:

By its plain terms, § 1001 (as it existed before it was amended in October 1996), broadly reaches “[w]hoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . .makes any false, fictitious or fraudulent statements or representations. . . .”

For example, if the false statement was volunteered to an FBI agent the Supreme Court has held that § 1001 does apply. United States v. Rodgers, 466 U.S. 475 (1984). In Rodgers the court concluded: (1) that criminal investigations fell within the term “in any matter”; and (2) that the FBI qualified as a “department or agency.” In Rodgers the language “within the jurisdiction” was held to merely differentiate the official, authorized functions of an agency or department from matters peripheral to the business of that body. From Rodgers it is also clear that the term “jurisdiction,” defined as the “right to say and the power to act” (Gonzales v. United States, 286 F.2d 118 (10th Cir. 1960), cert. denied, 365 U.S. 878 (1961)), should not be given a narrow or technical meaning (United States v. Fern, 696 F.2d 1269 (5th Cir. 1983)), and extends to the power to investigate. The statute has also been held to apply if the false response is made to an investigator other than an FBI agent. See United States v. Ratner, 464 F.2d 101 (9th Cir. 1972)(employee of the United States Internal Revenue Service); United States v. Mahler, 363 F.2d 673 (2d Cir. 1966)(employee of the United States Securities and Exchange Commission); Frasier v. United States, 267 F.2d 62 (1st Cir. 1959)(employee of the United States Army); Tzantarmas v. United States, 402 F.2d 163 (9th Cir. 1968), cert. denied, 394 U.S. 966 (1969)(employee of the United States Immigration and Naturalization Service).

Although § 1001 does not provide for exceptions, a number of courts have held that it does not apply to cases involving simple false denials of guilt in response to government initiated inquiries. See, e.g., United States v. Taylor, 907 F.2d 801 (8th Cir. 1990); United States v. Equihua-Juarez, 851 F.2d 1222 (9th Cir. 1988); United States v. Cogdell, 844 F.2d 179 (4th Cir. 1988); United States v. Fitzgibbon, 619 F.2d 874 (10th Cir. 1980); United States v. King, 613 F.2d 670 (7th Cir. 1980); United States v. Chevoor, 526 F.2d 178 (1st Cir. 1975). These courts have concluded, inter alia, that mere denials of guilt do not impair the basic functions of the agency to which the statement is made. But even where it is recognized, the “exculpatory no” doctrine is not applicable in situations in which the statements are more than mere denials of the accusation of criminal activity. United States v. Van Horn, 789 F.2d 1492, 1511 (11th Cir. 1986)(“The exception . . . does not apply when a person attempts to affirmatively mislead a government investigation”); United States v. North, 708 F. Supp. 364, 369 (D.D.C. 1988), rev’d in part and vacated in part on other grounds, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990).

Other courts have rejected the “exculpatory no” exception to § 1001. See, e.g., United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994)(en banc); United States v. Steele, 933 F.2d 1313 (6th Cir. 1991)(en banc). In addition, a few courts have neither adopted nor rejected the “exculpatory no” doctrine. United States v. Barr, 963 F.2d 641 (3d Cir. 1992); United States v. Cervone, 907 F.2d 332, 342 (2d Cir. 1990); United States v. White, 887 F.2d 267 (D.C. Cir. 1989).

SOURCE: https://www.justice.gov/archives/jm/criminal-resource-manual-916-false-statements-federal-investigator

[Sherrerd]

@UltraVires

…it was a farce calculated to trap him into lying to them …

People on the right are very fond of this defense of Flynn, judging by its ubiquity. But how does that work in the case of the particular lies Flynn was found to have uttered? How was he “trapped” into saying those things?

Here’s a reminder about Flynn’s lies:

… Two FBI agents walked into the White House the next day. It was Jan. 24, 2017, and they were there to talk to Flynn.

One of them was Peter Strzok, a senior counterintelligence official who would later face scrutiny for his anti-Trump comments. Flynn agreed to talk with them, and when asked, denied that he told Kislyak to back off from escalating situation in response to the sanctions.

He also lied about a follow-up phone call and another matter: On Dec. 21, 2016, when Egypt pushed a resolution at the United Nations critical of Israeli settlements in Palestinian areas, Trump son-in-law Jared Kushner turned to Flynn to push for the Kremlin to oppose the move. Flynn had unsuccessfully pressured Kislyak on the issue. But he told the agents otherwise.

News of the false statements to the FBI— a crime under federal law— quickly made it to Yates, who on Jan. 26, called White House counsel Don McGahn. She needed to discuss a sensitive matter.

In a meeting with McGahn and another White House lawyer later that day, Yates told him that Pence’s comments about Flynn weren’t true. Also, Flynn’s FBI interview hadn’t gone well. …

(my emphasis) The Mueller report's account of Michael Flynn's lies | AP News

Again, how was Flynn “trapped” into making those statements?

[Aspenglow]

@UltraVires

I’m not making it up. The law doesn’t punish lying to the FBI, it punishes a “materially false” statement regarding a matter under investigation by the FBI.

The Justice Department rightfully determined that this was not an investigation by the FBI, it was a farce calculated to trap him into lying to them while creating the pretense of an underlying investigation.

As I said, these dirty tricks happen all of the time, and I hope this case can be used as precedent to stop them. Investigate actual crimes, don’t find people you don’t like and try to see how you can get them to commit crimes.

Gosh, it is such a shame Flynn didn’t have you as his wing man during that transition period. According to you, he didn’t have to lie about anything! What a dummy!

He didn’t have to hide his actions with Kisliak, didn’t have to lie about it to anyone, including Pence.

He could have just looked those FBI guys straight in the eye and said, “Yeah, I did it! I told those Russians not to retaliate on the sanctions thing, because a new Sheriff was gonna be in town! What are you guys going to do about it? Charge me with violating the unconstitutional Logan Act? HAAAAhahahahahahahahaha!!!”

And that would have been the end of it! He didn’t have to spend 8.5 million on his defense, lose his house or go broke, because he did nothing illegal!

If only you had been there when it really counted.

:rolleyes:

[UltraVires]

@Whack-a-Mole

It seems it mostly is with a few exceptions. Below is a lot of copypasta but it is from a government site and in the public domain and I don’t want someone accusing me of omitting an important bit:

Your cite left out an important word:

@18 USC 1001

(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

Your cite did not even put the ellipses in the right place and, hehe, materially misrepresented the law.

From the DOJ Motion to Dismiss:

Proof of a false statement to federal investigators under Section 1001(a)(2) requires more than a lie. It also requires demonstrating that such a statement was “material” to the underlying investigation. See United States v. Gaudin, 515 U.S. 506, 509 (1995); United States v. Kim, 808 F. Supp. 2d 44, 59 (D.D.C. 2011). Section 1001 prohibits “knowingly and willfully … mak[ing] any materially false, fictitious, or fraudulent statement or representation” in a “matter within the jurisdiction of the executive … branch of the Government of the United States.” 18 U.S.C. §
1001(a)(2) (emphasis added). As is well-established, materiality does not equate to mere “relevance”; rather, “[t]o be ‘material’ means to have probative weight”—that is, to be “reasonably likely to influence the tribunal in making a determination required to be made.” Weinstock, 231 F.2d at 701 (emphasis added).

The materiality threshold thus ensures that misstatements to investigators are
criminalized only when linked to the particular “subject of [their] investigation.” Kim, 808 F. Supp. 2d at 59; cf. Kungys v. United States, 485 U.S. 759, 774 (1988) (false date and birthplace statements in immigration application were not “material” as they were not “relevant to his qualifications [for citizenship]”). And it prevents law enforcement from fishing for falsehoods merely to manufacture jurisdiction over any statement—true or false—uttered by a private citizen or public official.

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI. Indeed, the FBI itself had recognized that it lacked sufficient basis to sustain its initial counterintelligence investigation by seeking to close that very investigation without even an interview of Mr. Flynn. See Ex. 1 at 4. Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national
security or violated FARA or its related statutes, id. at 3.

With its counterintelligence investigation no longer justifiably predicated, the
communications between Mr. Flynn and Mr. Kislyak—the FBI’s sole basis for resurrecting the investigation on January 4, 2017—did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation. The calls were entirely appropriate on their face. Mr. Flynn has never disputed that the calls were made. Indeed, Mr. Flynn, as the former Director of Defense Intelligence Agency, would have readily expected that the FBI had known of the calls—and told FBI Deputy Director McCabe as much. See Ex. 11. Mr. Flynn, as the incumbent National Security Advisor and senior member of the transition team, was reaching out to the Russian ambassador in that capacity. In the words of one senior DOJ official: “It seemed logical . . . that there may be some communications between an incoming administration and their foreign partners.” Ex. 3 at 3. Such calls are not uncommon
when incumbent public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] …national security.” Ex. 1 at 2, Ex. 2 at 2.

They provided no factual basis for positing that Mr. Flynn had violated FARA. Nor did the calls remotely transform Mr. Flynn into a “viable candidate as part of the larger … umbrella case” into Russian interference in the 2016 presidential election. Ex. 1 at 3.
In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

Further:

Under these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are “material” to an investigation that—as explained above—seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn. Although it does not matter that the FBI knew the truth and therefore was not deceived by Mr. Flynn’s statements, see United States v. Safavian, 649 F.3d 688, 691-92 (D.C. Cir. 2011), a false statement must still “be capable of influencing an agency function or decision,” United States v. Moore, 612 F.3d 698, 702 (D.C. Cir. 2010) (citations and quotation mark omitted). Even if he told the truth, Mr. Flynn’s statements could not have
conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose. See United States v. Mancuso, 485 F.2d 275, 281 (2d Cir. 1973) (“Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation.”); cf. United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (noting that a
lie can be material absent an existing investigation so long as it might “influenc[e] the possibility that an investigation might commence.”). Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.

Bottom line is that Comey, Strzok, and Page were not attempting to investigate a crime and punish an offender. They were attempting to find and offender and manufacture a crime. Such is intolerable and unethical.

Does it happen every day in this country? Yes. Has Flynn received generous and unequal treatment? Yes. But it is the right treatment that should be afforded every citizen. If the police did this to a random dude on the street, the left would be rightfully outraged.

[Ravenman]

@UltraVires

Again, if this wasn’t a Trump official, I suspect many of you would be outraged by this sort of government conduct.

In your opinion, were Flynn’s actions (everything from his sketchy attachments to the Kremlin to his lying to the FBI to his lying to the VP which got him fired) more or less outrageous than Hillary’s emails?

[iiandyiiii]

@UltraVires

No, it is not.

Yes it is. Trump didn’t like this investigation, so to you that makes immaterial or whatever ridiculous justification you’re throwing up there. But he was asked questions by the FBI in the course of an investigation, and he lied, and that’s illegal.

And it should be illegal. How can the FBI and other law enforcement entities expect any chance of cooperation if there are no consequences for lying to them?

[iiandyiiii]

Just because Trump and cronies like Barr don’t like an investigation, that doesn’t make it illegitimate. Parroting Barr’s bullshit justification doesn’t make it illegitimate. Barr is a lying scumbag, and it’s no surprise that, like he lied about the Mueller report, he’s lying now.

Just more confirmation that this DoJ doesn’t actually care about justice - only protecting Trump and his interests.

He doesn’t even really try to hide it - he told a reporter that he’s not worried about how history will view it, because history is written by the winners.

The grift is open for all to see. They’re not even trying to hide it.

[iiandyiiii]

Bill Barr Defends Michael Flynn Reversal: ‘History Is Written by the Winners’

Forgot the link.

And here are some of the details on Barr’s very open lies:

An Ugly Day for the Justice Department

[Whack-a-Mole]

@UltraVires

Your cite left out an important word:

Your cite did not even put the ellipses in the right place and, hehe, materially misrepresented the law.

My cite was the Department of Justice. Take it up with them.

That the current DOJ does not know the law should not be surprising. Scary, but not surprising.

[RioRico]

@UltraVires

@iiandyiiii

Lying to the FBI is a crime, full stop.

No, it is not.

Have you lied to the FBI to test your hypothesis?

[Lance_Turbo]

@UltraVires

Bottom line is that Comey, Strzok, and Page were not attempting to investigate a crime and punish an offender. They were attempting to find and offender and manufacture a crime.

This is ahistorical bullshit.

I’m not falling for for it and you shouldn’t either.

[Lance_Turbo]

The court already ruled on materiality in Judge Sullivan’s 92 page opinion issued on 12/16/19.

The concluding statement on page 53 is pretty unambiguous.

The Court therefore finds that Mr. Flynn’s false statements were material within the meaning of 18 U.S.C. § 1001(a)(2).

The whole section “Mr. Flynn’s False Statements Were Material” starting on page 49 is worth a read.

[Miller]

@UltraVires

No, it is not.

Somebody should have told Mike Flynn about that, before he pleaded guilty to it.

Twice.

[Xema]

duplicate

[Xema]

@Whack-a-Mole

My cite was the Department of Justice. Take it up with them.

Actually, you should. They have made you look rather foolish, by offering a quote from 18 USC 1001 that omits an essential word without ellipsis.

[asahi]

@UltraVires

No, it is not.

Bottom line: Mike Flynn twice entered a guilty plea for something you claim is not a crime.

How does that work, exactly?

[asahi]

@iiandyiiii

Just because Trump and cronies like Barr don’t like an investigation, that doesn’t make it illegitimate. Parroting Barr’s bullshit justification doesn’t make it illegitimate. Barr is a lying scumbag, and it’s no surprise that, like he lied about the Mueller report, he’s lying now.

Just more confirmation that this DoJ doesn’t actually care about justice - only protecting Trump and his interests.

He doesn’t even really try to hide it - he told a reporter that he’s not worried about how history will view it, because history is written by the winners.

The grift is open for all to see. They’re not even trying to hide it.

This is just half of it, Andy.

One half of the Trump-Barr legal system is to discredit those who conscientiously uphold the rule of law; the other half of it is turning the legal system into a weapon to attack and even imprison enemies. This is straight out of the authoritarian playbook, and that’s where this country is headed if Trump wins and the GOP defends the senate. If Trump wins, the Constitution and America as we know it, die.

[Xema]

38 posts in this thread with very little mention of the things - many of which became public only last week - that led to the action cited in the OP.

Here’s a relevant article: Dirty Dozen: The 12 revelations that sunk Mueller’s case against Flynn.

Among the most significant of these points:
That on Jan 4 2017 an FBI memo stated that no derogatory info had been found on Flynn, and the case should be dropped.

That the “302” memo of the Jan 24 interview with Flynn was filed long after the required 5 working days, and the version filed was not the original, but one that had been edited by Strzok and Lisa Page (not present, and not an FBI agent).

And the big one: That though all this information was required to be disclosed to Flynn and his lawyers early in the game, much of it was illegally withheld.

[Xema]

@asahi

Mike Flynn twice entered a guilty plea for something you claim is not a crime.

How does that work, exactly?

The FBI claimed it was a crime while withholding information that would have allowed him and his lawyers to understand that this was incorrect.