A lot has happened in the last few months. This is so both in the world of white-collar enforcement and just in the world. I thought I’d share some thoughts on last week’s news about Michael Flynn and the Supreme Court’s decision in the “Bridgegate” case.

I. Flynn-sanity or: Gee, it must be nice to be the President’s buddy when you lie over and over again.

First up, Michael Flynn. He’s been a repeat player on this blog.

The Background. The short version is this: After the 2016 election but before the 2017 presidential inauguration, incoming National Security Advisor Flynn spoke to Russia’s ambassador to the U.S. about U.S. sanctions against Russia. He asked the Russians not to escalate tensions. But he told incoming Vice President Pence later in the transition that he had not discussed the sanctions. He told the FBI the same thing in late January 2017. He pleaded guilty to one charge of making a false statement to the FBI, and also admitted that he had acted as an unregistered agent of the Turkish government during the transition, and that he made false statements to DOJ in March 2017 about his actions on Turkey’s behalf. But then he tried to withdraw his guilty plea. Last week, DOJ filed an unusual motion asking the court to drop the charges against Flynn.

The Controversy. Depending on who you ask, this is either (1) vindication for an innocent man railroaded by the FBI, (2) a stunning assault by the Attorney General on the rule of law and an act of pure corruption to protect the President’s allies, or (3) a small taste of the kinds of pressures that less well-connected subjects of federal investigation face every day. For my part, I lean toward some version of (2) and (3), though neither completely captures my view.

DOJ’s filing outlines some pretty bad FBI conduct. Some of it may be typical. Some less so. But parts of the FBI correspondence are unbecoming to say the least. Of course, that doesn’t excuse a pattern of lawless conduct by a high official who oozes contempt for the rule of law. It doesn’t mean the FBI should railroad him, but I’m not inclined to give him the benefit of any doubt.

It’s worth reading DOJ’s latest filing in full. There has already been some controversy about its uncharacteristically defendant-friendly view of the “materiality” the government must show to prove a false-statement charge. The same with its statements on whether there was a proper basis for the FBI to interview Flynn in the first place.

Some Takeaways. But that’s all well-trodden ground. So I thought I’d look at some different things.

To start, DOJ makes a strange claim in asking the court to dismiss the charge against Flynn. DOJ says that it doesn’t “believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”

Huh? Flynn admitted, repeatedly and under oath, that he made false statements. And that he knew the statements were false. And that they were material.

“But Aaron!” you might object. “Doesn’t Federal Rule of Evidence 410 prohibit the government from using statements in plea agreements or plea hearings in a later prosecution if the guilty plea is later withdrawn?” Why yes. But not here. You see, Flynn’s plea agreement disclaimed any protection under FRE 410. Look at page 7:

Your client acknowledges discussing with you Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence, which ordinarily limit the admissibility of statements made by a defendant in the course of plea discussions or plea proceedings if a guilty plea is later withdrawn. Your client knowingly and voluntarily waives the rights that arise under these rules in the event your client withdraws your client’s guilty plea or withdraws from this Agreement after signing it.

So Flynn’s admissions come in. Between them, testimony from the agents, and so on, I just don’t get the claim that the government couldn’t prove its case. Just as interesting, why would DOJ ever admit that a contested statement with no recorded interview can’t be proven. That would seem to undermine a bunch of future false-statement cases—that is, of course, if DOJ takes its arguments here seriously in future cases . . .

Next, what about the other illegal conduct—some of which, quelle surprise!, also involved lying—to which Flynn admitted? He violated the Foreign Agents Registration Act (drink!) by working as an unregistered Turkish agent. He admitted it. And he lied to DOJ about his work for Turkey. He admitted that too. If he did so knowing it was against the law, DOJ could charge him for either of those things. But I wouldn’t hold my breath.

Indeed, if Flynn now claims to be innocent, I suppose he could also be charged with perjury. He signed his plea agreement and statement of offense under penalty of perjury. And he was under oath when he first pleaded guilty in open court. Those statements were, under his current theory, lies. Yet I’m actually glad that he won’t be charged for them. For one thing, I think he probably did lie to the FBI to begin with. For another, people admit to crimes they didn’t commit for a whole host of reasons. Charging them after they’ve cleared their names is perverse.

Last, what could this mean for future false-statement cases? The cynical part of me—and that’s most of me—knows that this won’t have any effect on future cases. At least not from the government’s perspective. You see, this was an effort to protect someone the President likes and shield him from accountability for his actions. DOJ’s not going to move to dismiss charges to which someone’s already pleaded guilty without evidence of actual innocence or criminal government misconduct for anyone else. But one can dream.

  • People make mistakes without lawyers to advise them. DOJ’s latest filing frets over the FBI’s not following the common practice of arranging the interview with Flynn through the White House Counsel’s office. The FBI, of course, routinely approaches ordinary folks for voluntary interviews without lawyers. I sure do wish they’d advise everyone of their right to have a lawyer. I wish even more that DOJ would decline to prosecute people who make false statements without their lawyers present. But I doubt that’s going to happen. I should pause here to flag a fascinating note about the possible drawbacks of government agents advising persons of their rights when they’re not legally required to do so.
  • It’d be nice if DOJ didn’t bring charges when agents failed to give the “common Section 1001 admonition about lying to investigators.” But that’s not the case. No law requires the government to advise you that lying to government agents can be a crime, but you do have to be generally aware that it’s unlawful to do so. See 18 U.S.C. § 1001 (requiring false statements to be made “willfully”).  Did Michael Flynn—a seasoned government official who once ran an intelligence agency—know that it’s illegal to fib to the FBI? Who’s to say, but I’ve got a hunch about how that would have played out at trial.

In sum, I don’t know how to read these events. I wish that DOJ would drop more cases when there are reasons to doubt the motives of regulators or investigators. So too when internal DOJ or agency policy or best practices aren’t followed to a T. But I can’t shake the belief that we won’t see that. Instead, this will just be a blip. Fun, I suppose, for defense lawyers to quote the government’s Flynn filing in future briefs, but unlikely to change the outcome for anyone who’s not a friend of President Trump.

 II. Brecher on Blackman on Kagan on (Not Really) Impeachment—Kelly v. United States

Last Thursday, the Supreme Court decided a case of considerable interest to white-collar defense attorneys: Kelly v. United States.

The case dealt with the “Bridgegate” scandal. Several New Jersey officials misused Port Authority powers to close lanes on the George Washington Bridge and increase traffic in Fort Lee, New Jersey. The move was to punish Fort Lee’s mayor for not endorsing Governor Chris Christie’s 2013 gubernatorial campaign.

The Supreme Court unanimously invalidated the defendants’ convictions for wire fraud and federal-program fraud. Justice Kagan wrote the opinion, which is brisk and readable (but I repeat myself). The Court held that because the scheme didn’t aim to get money or property from the Port Authority, there was no violation of the wire fraud and federal-program fraud statutes. “[N]ot every corrupt act by state or local officials is a federal crime.” Op. at 13.

Fair enough. I suspect that there’ll be lots of litigation over when money expended or property lost through a corrupt regulatory action is “just the incidental cost of that regulation, rather than itself an object of the officials’ scheme.” Op. at 2. That difference made the difference in Kelly. It may do so again in future corruption cases.

My interest here is a bit different. Josh Blackman, who teaches constitutional law, wrote a very interesting but very strange piece for Reason on Kelly. He focused on its implications for the impeachment scandal that engulfed President Trump. I tweeted about the Blackman piece, and that thread captures what I want to say here.

First, Blackman attacks not one but two straw men: non-existent articles of impeachment for bribery and wire fraud that the House Judiciary Committee report discussed but that neither the Committee nor the House approved.

Second, his argument about bribery seems to distort one or all of (1) the wire fraud statute at issue in Kelly, (2) the federal bribery statute, or (3) the broader constitutional understanding of bribery reflected in Article II’s impeachment clause. Kelly discusses a particular theory of criminal liability under particular statutes requiring a scheme to obtain money or property. Not so the federal bribery statute. That law requires only that the defendant have solicited “anything of value” in exchange for an official act. I discuss this at length in my earlier post on the Ukraine scandal.

And the “bribery” mentioned in the Constitution, which predates the federal criminal code, is broader still. Kelly disclaims any implications it may have for bribery cases. Those are not just subject to bribery prosecutions, but can also support an honest services prosecution under the wire fraud law.

Third, Professor Blackman’s breezy translation of a line in the opinion misses its meaning. Blackman writes:

But letting the voters decide is just one of two options Kagan offers, as the language Blackman quotes—and the citation he doesn’t—shows:

So in fact the Court’s opinion contemplates criminal prosecution for this conduct. It even suggests a possible theory of criminal liability. It holds only that the federal wire fraud theory won’t do. Nor does the Court say or even imply anything about “letting the voters decide” when it’s a federal official subject to impeachment for abusing power.

Finally, I’m not even sure whether Blackman agrees or disagrees with the Court here. His op-ed in January (which he quotes here) argued that the President’s conduct was not an abuse of power. But the comparisons he draws to the facts in Kelly suggest that the Court would disagree were that question justiciable.

In any event, Blackman is wrong. The President abused his power, was rightly impeached, and was wrongly allowed to remain in office. And, as I argued in October, there’s good reason to believe that the conduct that got him impeached was also criminal.