You can add location information to your Tweets, such as your city or precise location, from the web and via third-party applications. You always have the option to delete your Tweet location history. Learn more
Yesterday I ridiculed a subset of Flynn defenders -- those who misrepresent the law and the way the system works. These are the fair-weather-friends of criminal defense. But there is a principled argument that what happened to Flynn is wrong. /1https://twitter.com/Popehat/status/1073329298361090048 …
/2 Flynn's conviction is wrong not in a unique way, but in a way that many lying-to-the-government convictions are wrong: because of the way the lying-to-the-feds statute works. That's 18 USC 1001. https://www.law.cornell.edu/uscode/text/18/1001 …
/3 One element of 1001 - that is, one thing the government must prove to convict you -- is that your statement was "material." "Material," in law, generally means "capable of making a difference." The false statement must, in some way, matter to the proceeding you're lying in.
/4 But here's the trick. The "materiality" element for 1001 has been watered down. It doesn't require that your lie ACTUALLY made any difference whatsoever. Just that it's the SORT of lie that hypothetically COULD in such a case.https://www.justice.gov/jm/criminal-resource-manual-911-materiality …
/5 That's how the feds can convict someone like Flynn: have TRANSCRIPTS of the communications in question, KNOW what happened beyond doubt, go to him, gather lies they never for a second believe and that don't slow them for a moment, and call the lie "material."
/6 This is fundamentally unjust and unbecoming in several ways. First, though it's not entrapment (entrapment is when the government INDUCES you to commit a crime), it's absolutely trolling for crime -- creating it when it otherwise wouldn't exist, intentionally.
/7 Second, and to me more importantly, there's a huge disconnect between when YOU can lie to the GOVERNMENT with impunity, and when the GOVERNMENT can lie to or about YOU with impunity. Consider a FBI agent lying about you in a search warrant application to get the warrant.
/8 When an agent does that, a different "materiality" standard applies. The question becomes, if you took out the lie, would what is left be enough to support the warrant? In other words, did the agent's lie ACTUALLY make a difference? This standard protects government lies.
/9 But if YOU lie to the government, the question is different -- it's not DID your lie ACTUALLY make a difference (it usually didn't), but could we imagine such a lie hypothetically making a difference? The law privileges the government to lie to and about you.
/10 This is not a defense of lying to the government. It's a critique of the excesses of governmental power, and of how governmental power tends to become its own justification.
/11 Flynn was wrong to lie to the FBI. He should have lawyered up and/or told the truth. But what happened - the government convicting him because he told a lie they anticipated and never believed, that never hindered or delayed them -- is not right.
/12 I believe this administration poses many grave dangers to the rule of law and justice. One of them is that, in our well-earned contempt, we'll embrace the worst practices law enforcement has to offer, so long as they are pointed at people we hate.
/13 (On the other hand, pardon me if, as a criminal defense attorney, I do not feel a transport of cordiality with people who have abruptly discovered how the system works and are horrified to see it pointed, temporarily, at conservative white dudes. They will not stay long.)/end
your point is well-taken, but isn't part of the point, here, at least, that Flynn could have been indicted on various other crimes, and the Gov't chose the least serious one b/c of cooperation?
We don't know.
it's a very refreshing answer. now I am trying to figure out where my assumptions came from.
Lying to the feds is the resisting arrest charge for rich people.
Yes but what if perjury conviction is only cover for the many other crimes he committed but which are still under ongoing investigations involving lots of totally screwed Trump people?
So it's okay to lock up some kid off the street without evidence because "he probably committed lots of other crimes?" If he committed other crimes, and there's evidence of it, arrest and try him for them.
@gymbomom2 It's a great thread and I agree with it and you. My speculation was as to possible facts, and is not an endorsement of prosecutorial abuse of perjury.
Twitter may be over capacity or experiencing a momentary hiccup. Try again or visit Twitter Status for more information.
