Much has been reported in recent days about the manner in which the FBI “trapped” President Trump’s former National Security Adviser, retired Lt. Gen. Michael Flynn, into lying in an early 2017 interview. Under federal law, it is strikingly easy for unethical federal officials to successfully play a game of legal “gotcha” with individuals they decide to target. This is precisely why we must insist on maintaining the highest ethical standards for federal investigators and prosecutors, which tragically did not happen in Flynn’s case.
What the FBI — then under the leadership of the since-discredited James Comey – did to Gen. Flynn constitutes a blatant violation of the most basic ethical principles which federal investigators and prosecutors are sworn to uphold. The fundamental ethical foundation according to which these men and women, including Comey and former Special Counsel Robert Mueller — whose office prosecuted Flynn — is best captured in a speech delivered by then-Attorney General Robert Jackson in early 1940.
Jackson’s remarks, delivered at the Justice Department to the assembled United States Attorneys, concluded with this eloquent statement supposed to undergird the duties of these powerful officials:
“The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”
Revelations in just the past week illustrate how completely government agents strayed from Jackson’s admonition in their case against Flynn: targeting him for partisan political reasons when there was no evidence of any underlying violation of any U.S. law, cleverly lulling him into a sense of confidence that he was discussing matters of mutual interest with fellow employees of the same administration and finally springing the trap shut by threatening the one thing the agents knew would be more important to the him than even his own career – that of his son.
The first vehicle by which the federal agents targeted Flynn was something known as the Logan Act, a centuries old but never used federal law prohibiting civilians from engaging in diplomacy with foreign governments. Not only was there no evidence to justify an investigation of Flynn beyond even a preliminary inquiry into whether this law had been violated, but it would not even apply to an official in his position.
Ultimately, the noose Mueller’s band of partisan prosecutors hung around Flynn’s neck is a law that often is used by federal attorneys – 18 U.S.C. §1001. This is the single count to which Flynn plead guilty in late 2017 (and for which he still awaits sentencing). It is this non-descript law that is in many respects a “prosecutor’s best friend” because of its broad scope.
Make no mistake, this section of the federal criminal code is legitimate and serves a valuable public purpose if properly utilized. In essence, the provision makes it a felony to “knowingly and willfully” lie to a federal agent. Unlike a number of other, similar federal and state crimes such as perjury, however, a person can be convicted of violating “Section 1001” (as the section is commonly known) without having been first placed under oath; hence its broad reach.
This “1001” language also can be found in the small print on almost every federal form that individuals sign, including most banking forms, federal assistance paperwork and so forth. It truly is a trap for the unwary and the dishonest. Its use in the Flynn case, however, demonstrates that a legitimate and well-intended law, when placed in the hands of overly zealous investigators and prosecutors, becomes a cudgel by which federal agents can punish those with whom they disagree.
Hopefully, Bill Barr, the current Attorney General of the United States, will heed his predecessor’s 1940 admonition, and bring to justice those who so blatantly abused their positions of trust in targeting Gen. Flynn.
Bob Barr represented Georgia’s 7th District in the U.S. House of Representatives from 1995 to 2003 and was the U.S. Attorney for the Northern District of Georgia from 1986 to 1990. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.