Time To Reject General Flynn’s Guilty Plea

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When General Flynn comes up for sentencing tomorrow, the right move would be for the federal judge to reject the general’s guilty plea and throw out the case altogether. Is that likely to happen? Rarely say never, the editor warned. It’s our view that it should happen, though, after the release Friday of new details of the questioning of General Flynn by agents of the Federal Bureau of Investigation.

The release of those details was ordered last week by a no-nonsense United States district judge, Emmet Sullivan, who is due tomorrow to decide the sentence for General Flynn for violating section 1001 of Title 18 of the United States Code. This has long been recognized as an outrageously vague statute that all too often tempts prosecutors who are stuck making a better case.

The information released last week suggests this is just what happened in respect of General Flynn, who was misled by the FBI about the interview in which he supposedly lied. Not only could the judge in the case reject General Flynn’s guilty plea but he could cite none other than the most liberal Supreme Court justice, Ruth Bader Ginsburg.

This was pointed out last week by our columnist Ira Stoll, in his blog FutureOfCapitalism.com. He notes that the law to which General Flynn pled guilty provides up to five years in prison for anyone who “knowingly and willfully” makes any materially false statement “in any matter within the jurisdiction” of any of the three branches of the federal government.

The susceptibility of Section 1001 to abuse was, Mr. Stoll points out, nailed as far back as 1998 by Justice Ginsburg in a case called Brogan v. United States. She warned that the law’s “encompassing formulation arms Government agents with authority not simply to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government officer could prompt.”

The New York Sun’s columns, Mr. Stoll reminds us, reprised this problem in 2004, when the feds used Section 1001 to bake their pie against Martha Stewart. That was in an editorial called “Martha Stewart and the Law.” We also carried an op-ed by a former deputy Whitewater prosecutor, Solomon Wisenberg, noting the “potential for abuse of this statute” even for normally honest prosecutors.

Justice Ginsburg reckoned that Section 1001 creates the prospect that “an overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.” It’s uncanny how clearly she foresaw the kind of trap that ensnared General Flynn.

The justice practically begged Congress to address the flaw, but the legislature shrank from the task. Hence the chance for Judge Sullivan. He certainly has the backbone. He famously set aside a jury’s conviction of Senator Ted Stevens, after learning of prosecutorial misconduct in concealing evidence from the defense. Judge Sullivan held several of the prosecutors themselves in contempt.

General Flynn’s sentencing is a special moment in this special prosecution. His was among the first cases launched by Special Prosecutor Mueller. The sentencing hearing is the last chance to stop the injustice of the tactics used to destroy him and his career. Mr. Stoll reminds us that Judge Sullivan’s first name — Emmet — is Hebrew for “truth.” It’s a good name to live up to.


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