Critics of the Russia investigation think they’ve finally found evidence of something they’ve long warned about: a perjury trap.
As is often the case, they’re reaching.
Former national security adviser Michael Flynn’s legal team on Tuesday night filed an extensive sentencing memo making the case for Flynn to serve probation only. And in doing so, they suggest Flynn went into the meeting with the FBI, in which he lied, with a false sense of security. They note the investigators didn’t recommend Flynn bring a lawyer and didn’t explain that lying would put Flynn in legal jeopardy. They also note that others who have pleaded guilty to lying — George Papadopoulos and Alex van der Zwaan — got different treatment on those counts.
Here’s the applicable section (with emphasis added):
General Flynn’s case differs from that of Alexander Van der Zwaan, who pled guilty to lying to the Special Counsel and failing to produce requested documents. Unlike General Flynn, Mr. Van der Zwaan is a trained attorney who was represented by counsel during the interview; he was interviewed at a time when there was a publicly disclosed, full-bore investigation regarding Russian interference in the 2016 election; and he was given a warning that it is a federal crime to lie during the interview.
General Flynn’s case also differs from that of George Papadopoulos, who pled guilty to making false statements regarding his communications with Russians and Russian intermediaries. Mr. Papadopoulos was specifically notified of the seriousness of the investigation, and “was told that he may have important information to provide.” He was warned that lying to investigators was a “federal offense” that could get him “in trouble.” Mr. Papadopoulos’s interview was “not a hurried” encounter, and he had time to reflect on his answers as he traveled from his home to the FBI office in Chicago to continue the interview.
The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, [then-Deputy Director Andrew] McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.
The filing also quotes then-Deputy FBI Director Andrew McCabe — a lightning rod for critics of the FBI — saying he told Flynn that getting a lawyer would complicate and prolong the talks and force McCabe to involve the Justice Department.
Flynn’s lawyers don’t explicitly say that he was tricked into lying, but some critics of the Russia probe are connecting the dots:
Experts, though, say there is almost nothing unusual, illegal or even unethical about how Flynn was treated. There is no requirement that investigators inform subjects who aren’t in custody that they need a lawyer or that lying is illegal. And former federal prosecutor Patrick Cotter said it was the treatment van der Zwaan and Papadopoulos got that was unorthodox — not Flynn’s.
“In the vast majority of such noncustodial interviews of which I am aware — and there are probably hundreds I’ve encountered in my career — there is no explicit warning at all,” Cotter said. “So Flynn not getting a special warning is not in any sense out of the ordinary.”
David Moran, a criminal procedure expert at the University of Michigan who runs the Michigan Innocence Clinic, also said Flynn’s treatment is completely par for course. The famous Supreme Court case, Miranda v. Arizona, requires law enforcement to inform those in custody of their rights, but not people such as Flynn who weren’t in custody.
“The tactic of telling a subject not in custody that he or she doesn’t need an attorney present during an interview may be standard, but whether it is savory is a matter of opinion,” Moran said. “Still, it strikes me as odd for a tactic that is used every day with suspected criminals of every description to come under fire only when used against a highly sophisticated, extremely well-connected defendant.”
And that might be the key point here. Van der Zwaan isn’t a U.S. citizen, and Papadopoulos was something of a gadfly foreign policy adviser, so informing them of their rights perhaps made some sense. But Flynn is a three-star general of significant stature, with three advanced degrees. To believe he was lulled into a false sense of security is to believe someone like him wouldn’t know that lying to investigators can get you into trouble and that you might want to have an attorney.
Flynn’s own sentencing memo makes clear he considered and rejected the idea of getting a lawyer. According to McCabe’s account:
"I explained that I thought the quickest way to get this done was to have a conversation between [Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”
Cotter also noted that getting any advance warning of an interview is unusual and that Flynn was lucky to get even that.
“What a lovely world if all citizens got a heads-up call from the deputy director of the FBI before agents showed up to talk with them,” Cotter said. “Flynn was not only not treated unfairly; he was treated in an extraordinarily privileged manner. And he still lied."