Do Justice And The FBI Investigate Crimes Or Manufacture Them?

The big recent news in the fundamental corruption of the Department of Justice and the FBI is that various Congresspeople have now been allowed to see the FISA application submitted in 2016 seeking authority to surveil the Trump campaign, and multiple sources are now confirming that at least part of the basis for the successful application was the piece of Clinton campaign-financed  phony opposition research known as the "Trump Dossier."  However, although the FBI allowed a viewing of the FISA application, it did not allow the making of copies.  (Try that gambit next time the FBI subpoenas you for documents!)  So we are now all awaiting additional details.  My assumption is that there is lots more disgusting information to come about how our "law enforcement" agencies weaponized their powers to support the favored political candidate against the disfavored adversary.  But meanwhile, rather than making speculations that may turn out to be wrong about what is to come, let me take this opportunity to educate readers about some of the other fundamental corruption of our exalted law enforcement agencies that gets far less attention.

Just a few weeks ago, in a post titled "The Reputation Of The FBI -- And Of The Justice Department -- In Tatters," I advised readers that "you would be out of your mind ever to cooperate in any way with these guys."  Reasons included not only that they regularly misuse their powers for political purposes and prosecute things that are not crimes, but also "they are entirely likely to create an entrapment scheme to manufacture a crime to nail you."  

The word is that in the last few days Special Prosecutor Mueller has been seeking an interview with President Trump.  Does my advice to not cooperate apply equally to the President in these circumstances?  Sadly, it applies especially to the President.  Let's review the output of the Mueller investigation to date.  When you look at it, the effort appears to amount to little more than the manufacturing of crimes that did not previously exist in order to nail disfavored people.

First, some background.  There is something in the U.S. Code known as 18 U.S.C. Section 1001 that makes it a crime to "make[] any materially false, fictitious, or fraudulent statement or representation" in any matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States."  Does that seem innocuous to you?  I mean, why would anyone lie to the government?  Unfortunately, it's not that simple.  Over time, the prosecutors, with the substantial acquiescence of the courts, have come up with more and more creative ways to use this statute.  By this time, it has become an all-purpose means to enable them to convict anyone they want to get, irrespective of whether an individual had committed any crime before the investigation of that individual began.  Prosecutors have also used this statute to substantially eviscerate the attorney-client privilege as it applies to lawyers for federal criminal defendants.  

Like many of the most obnoxious things about our government, this one does not have ancient lineage.  The common law tradition is that witnesses in judicial proceedings must swear an oath, the taking of which seriously notifies you that you must be careful not to lie.  This statute, enacted in 1948, upended all of that.  Yes, there were some predecessor statutes that made unsworn false statements crimes, but those statutes only applied in specific narrow contexts, such as claims for monetary compensation from the government.  From 1948 it became a crime to "lie" about anything at any time, whether or not under oath.

OK, what does it mean to "lie"?  Suppose, for example, an FBI guy comes up to you and says, "Have you committed any crime in the last ten years?"  You say "no."  They then go and figure out some crime that you have committed.  The fact is that you have committed many federal crimes in the last ten years.  Remember that there are 5000 or so of them, and you have no idea what they all may be.  Is simply denying that you committed any crime enough to get you convicted under 18 U.S.C. 1001?  The Supreme Court decided that one in a case called Brogan v. United States in 1998.  The answer is that the simple denial is sufficient to violate this statute.  Another reason why you must never talk to federal agents under any circumstances.

Now, let us apply this background to the Mueller investigation.  So far, Mueller has obtained guilty pleas or issued indictments against four individuals:  Manafort, Gates, Papadopoulos, and Flynn.  In each case, either the only crime, or the most important crime alleged is a violation of 18 U.S.C. 1001 regarding statements made to Mueller's people during the course of the investigation.  

Flynn and Papadapoulos entered into guilty pleas.  In both of those pleas, the only crimes pled to consist of lying to the FBI under 18 U.S.C. 1001.  The alleged "lies" took place during Mueller's investigation, meaning that Mueller found nothing to charge as a crime about anything either of these individuals did before being interviewed by Mueller's team.  And in both cases the "lies" are about minor things that were not themselves underlying crimes.

Here is the Flynn guilty plea.  Flynn's supposed "crimes":  (1) On December 29, 2016 (when working on the Trump transition) Flynn asked the Russian ambassador not to escalate things in response to sanctions imposed by the Obama administration that day; but when asked about that by the FBI, Flynn denied he had made that request on that day; and (2) On December 22, 2016, Flynn asked the Russian ambassador to delay or defeat a pending UN resolution; but when asked about that by the FBI, Flynn denied it.  That's it.  Obviously neither of the underlying conversations that Flynn is accused of having constituted a crime in any way, and indeed they were a core part of his job on the transition.  Nothing in the plea agreement mentions how inquiring about conversations with the ambassador that took place after the election is even a legitimate part of the Mueller investigation.  

So how does the FBI come to know that Flynn did in fact ask Kislyak on December 29 not to escalate things in response to the new sanctions?  Obviously, they (with the assistance of the NSA) have recorded all conversations involving Kislyak, and have had a transcript prepared.  But is it a legitimate part of an "investigation" to put someone like Flynn to a memory test of every statement he may have made in a particular meeting, when they already have a transcript of the meeting?  It isn't.  This is about one and only one thing, which is coming up with something that can be characterized as a "lie" so that they can nail Flynn under 28 U.S.C. 1001 if they feel like it.  You got a few details wrong about some conversations that were themselves completely non-criminal and non-controversial and that seem completely peripheral to the investigation?  Too bad -- jail for you!

How about Papadopoulos?  Again, the whole thing is supposedly about "lies" to the FBI.  I won't go into full detail, but some examples: Papadopoulos said a meeting with a Russian contact was before he joined the Trump campaign, but in fact it was after (a question of a few days one way or the other); Papadopoulos said that a professor he met with was "just a guy talk[ing] up connections or something," when in fact the guy had a real link to the Kremlin; Papadopoulos tried to use the connection of this guy to set up a meeting with Kremlin officials.  Oh, by the way, the meeting Papadopoulos was trying to set up never took place!  So did the guy have serious links to the Kremlin or no?  Doesn't matter -- Papadopoulos is guilty!

On to Manafort.  The Manafort/Gates indictment is here.  Both are charged with the same counts.  If you look at it, on first take you might think there is something more to it than the usual Section 1001 charges that appear here as counts 11 and 12 of a 12 count document.  Don't be so sure.  The core of the rest of it is failure to register as a lobbyist for foreign interests, a supposed crime that probably half of the swamp creatures in Washington are violating on a daily basis and nobody ever gets prosecuted for.  (From Politico, October 30, 2017: "The real news in the indictment of Paul Manafort on charges of laundering and failing to register as a foreign agent is that someone has actually been prosecuted under a foreign lobbying law that has existed for decades but has almost never been enforced.")  Then there is the "money laundering" count.  That just means you got paid for something that is a crime, namely the unregistered lobbying.  Then there's failure to file forms about foreign bank accounts.  All of this of course taking place well before any involvement of Manafort and Gates in the Trump campaign.  Really?  A team of sixteen top prosecutors and an unlimited budget and this is what they've got?  If they put that team of prosecutors on you, they could easily come up with a list of "crimes" at least as serious.  Thus, you can well understand the perceived need to manufacture a new crime or two.  Enter 18 U.S.C. 1001.

Manafort and his team appear to have sensed the risk at least in part, and came up with a strategy of having their lawyers do the talking to the government.  Turns out that that strategy only made things worse.  Manafort's lawyers sent letters to the FBI describing circumstances of Manafort's representation of some Ukrainian groups that supported the Russian position.  In the Section 1001 counts in the indictment, the government claims that some of the statements in those letters were false.  Whereupon the investigators subpoenaed Manafort's lawyer, and demanded that she testify before the grand jury.  When she asserted attorney-client privilege, the government said that it did not apply because the communications were in furtherance of a plan to violate 18 U.S.C. Section 1001.  The Chief Judge of the DC District Court (Howell) bought the government's argument and compelled the lawyer to testify.  

An excellent summary of this situation can be found in this piece by lawyers at the Morvillo Abramowitz firm.   As recently as a few decades ago, it was completely unheard-of for prosecutors to subpoena the defense attorney and demand that she testify about the preparation of the defense of the case.  But over time, prosecutors have taken more and more to this tactic.  The logic of Judge Howell's decision would make subpoenaing the defense lawyer a legitimate and standard tactic in pretty much every case.  Hey, there might be something in the communications with the government that is not 1000 percent accurate!  The effort to try to avoid Section 1001 problems by having the lawyer do the talking not only doesn't avoid the problems, it now exposes the whole defense strategy to the government's scrutiny, and probably also gets your lawyer disqualified and requires you to start over.  

Somehow our Justice Department and FBI think that all of this is perfectly OK.  As their fundamental corruption has gotten deeper and deeper, they have completely lost all perspective.

Having read this, what is your take on whether President Trump should agree to be interviewed by Mueller's people?