Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
I’m a bit concerned about Michael’s Flynn’s guilty plea. Not because Michael Flynn doesn’t belong in jail. From all I can tell, he’d sell his country or his mother for a dollar, so I rather imagine that he probably belongs in jail for something. But I’m concerned about it, and about George Papadopoulos’ plea too, for that matter.
No, it’s not because I fear they’re going to turn state’s evidence on the Donald either. While I’ve been pleased with some of his actions as president, I’ve never had any confidence in Donald Trump’s character and won’t be surprised if it turns out there’s an actual fire under this smoke. Nor will I lose any sleep if he’s replaced with Mike Pence. (On the contrary, I’ll sleep better.)
The reason I’m concerned is that this proliferation of “meta” crimes — crimes of not fessing up adequately to the underlying non-crimes being investigated — just seems inherently Orwellian. I know this isn’t new. The “it’s not the crime it’s the cover-up” thing goes back at least to Watergate in my memory and frankly, probably earlier. But if you haven’t yet committed a crime and the FBI comes knocking, why do you owe a greater legal duty of candor to the FBI than you do to your brother in law?
Put another way, is it really an obstruction of justice if what was obstructed was an investigation of what is, legally, a nothing? Shouldn’t the government have to show that what it was investigating was an actual crime before it convicts someone for obstructing its investigation? Without that as an element of the crime, it just seems to be bootstrapping.
Make no mistake, any interview that goes on long enough — regardless of the character or honesty of the interviewee, or how little he or she has to hide — will produce a statement that can be ginned up into some kind of a charge of deception. Our memories are faulty and our language imprecise. So we will unavoidably say something that a prosecutor can use against us if he or she is sufficiently motivated to put the squeeze on.
And that’s the danger. These obstruction statutes can too easily become little more than a way of leveraging testimony (true or not) out of an unwilling witness, usually for the purpose of building a case (again, true or not) against a bigger fish. People are told they’re doing the right thing by voluntarily talking to the FBI, and being naive, or just decent and patriotic, they’re motivated to help catch a bad guy if they can. And before they know it they’ve gone from Good Samaritan to fool who should have kept their mouth shut.
I’d actually be inclined to propose that proof of an actual underlying offense, the investigation of which was obstructed, be made an element of any kind of obstruction charge. In other words, that obstructing an investigation, or lying to a law enforcement officer, or whatever, become a crime only with proof of the underlying crime being investigated. But this Kafkaesque (yes, I know I’ve now used both Orwell and Kafka in this post) tool is too useful so I have no serious hope that that will ever happen. Failing that, it’s probably a good rule to simply never talk to anyone from the justice department. Ever. For any reason. Including your college roommate at the reunion when he asks you how old your kids are now. Just walk away.
And if for some reason you’re ever compelled to speak to such a person, “I invoke my right against self-incrimination under the fifth amendment to the constitution” sounds nice.