Martha, Scooter, and Michael: Don’t Talk to the Feds

By | December 11, 2017 | 1 Comments

Reward for 33 years of service

This isn’t an easy column to write. I’ve always been pro-law enforcement. I recognize that if a thin blue line of police didn’t protect us from criminals at home, we would be as lost as if a thin camo line of troops didn’t protect us from barbarians abroad. But only a fool continues to advocate actions that have become dangerous. So with great reluctance, I admit that I learned something from Martha Stewart, Lewis “Scooter” Libby, and Lt. Gen. Michael Flynn.

● Martha Stewart sold stock just before unfavorable news came out, and the stock price fell. The possibility of insider trading was raised. Federal agents questioned Ms. Stewart, who denied profiting from insider information. She claimed she had a pre-existing agreement with her stockbroker to sell the stock if it fell to a specific level.

The feds were unable to gather sufficient evidence of insider trading to charge Stewart. Undeterred, they pressed her stockbroker to “roll over” on her. They agreed to reduce the charges against the broker if he testified against her. This is a common method of forcing people to testify. The problem is this: How does this method differ from physical torture?

The reasons we no longer torture confessions out of accused criminals are (1) it is inhumane, and (2) the information gained is unreliable. But don’t the same objections apply to threatening someone with a long prison term if he doesn’t give the “correct” testimony?

Forcing someone to reveal where the body was buried, or where the gun was hidden, is one thing. Here, the testimony can be verified with physical evidence. But it’s something else entirely to force someone to make a statement that, by itself, results in the conviction of a “bigger fish.” How can we trust testimony that was forcibly obtained?

As a result, Martha Stewart was convicted not of insider trading, but of making false statements to federal officers, which is itself a felony. She was sentenced to a relatively brief prison term. She will be a convicted felon for the rest of her life, unable to hold a corporate office, to get a security clearance, to touch a firearm, or (depending on state law) to vote.

● Then we come to the case of Lewis “Scooter” Libby, formerly chief of staff to Vice President Cheney. Valerie Plame was a CIA official who had been covert, but no longer was. Since it is a felony to reveal the identity of a covert CIA officer, the Justice Department appointed a special prosecutor, Patrick Fitzgerald. Special prosecutors have almost unlimited budgets and almost no supervision – a sure recipe for overreaching at best, and misconduct at worst.

Fitzgerald learned that Plame was no longer covert, and that her identity had first been revealed by Richard Armitage, a State Department official who was vocally anti-Bush and anti-Iraq war. That is, revealing Plame’s identity was not a crime, and it was done by someone else. But did the case end there? Are you joking?

The hope was that Libby would implicate Vice President Cheney. But after years of investigations and a lengthy trial, “Scooter” Libby was found guilty on of perjury and obstruction of justice. Why? Because his recollection of who said what when did not agree with the recollections of others, including media personality Tim Russert.

Psychology teaches us that eyewitness reports are unreliable. In a classic experiment, two men burst into a lecture hall. On pretends to stab the other, and they run out. The students are told to write down what happened. Invariably, about half the students claim the victim stabbed the assailant. Are they lying? Should they go to prison? Of course not.

Memory is fallible. It’s not like a videotape – it’s like a computer document. You can alter it each time you open it.

If you question me many times, and I tell more-or-less the same story, I’m probably telling the truth. But if I repeat exactly the same story every time, it’s probably a lie I made up. If you question me and someone else, and we say more-or-less the same thing, it’s probably the truth. But if we say exactly the same thing, it’s probably a lie we cooked up. If I know that, how come federal prosecutors and judges don’t?

● Now we come to retired Lt. Gen. Michael Flynn, formerly head of the Defense Intelligence Agency and ‒ briefly ‒ President Trump’s national security advisor. Again we have a special counsel, in this case Robert Mueller. Again we have a subordinate pressured to implicate “bigger fish,” in this case Trump or his associates in “collusion with Russia.” Again we have actions that were not a crime, in this case a President Elect contacting officials of other nations. But if there is a crime, it is the Hillary Clinton campaign paying Brits and Russians to fabricate the “Trump dossier,” detailing Trump’s hypothetical misdeeds.

Again, Flynn pled guilty not to any underlying crime, which has not been charged, much less proved. No, Flynn pled guilty to making a false statement to federal agents about meetings with Russians. Did he lie, or merely fail to remember? And if he did lie, was it out of malice, or out of ingrained habit from many years in intelligence: Tell only those with a need to know. But no matter, his statements were incorrect. To save his family from bankruptcy from legal bills, and to save his son from similar charges, he pled guilty.

Again, how does this differ from extracting confessions by torture? True, we no longer have Torquemada using the rack ‒ we have Mueller using the legal system. But is the result any better, either factually or morally? Both the Inquisition and the Nazis extracted confessions by threatening family members. The Nazis called this Sippenhaft.

Even worse, the FBI agent in charge of Flynn’s interview has been removed from the Mueller investigation because of his anti-Trump bias. Worse still, Flynn was unaware it was an official interview and did not have an attorney present. A man who is used to working with people who are honorable and are able to keep secrets can easily be trapped by people who are neither.

Question: The government had tapped the Russian ambassador’s phone. Then why question Gen. Flynn about those conversations, if not to trap him into a misstatement? The feds already knew what was said.

Question: If talking to the feds can land you in prison even if there is no underlying crime, why is not a Miranda warning required before every interview?

What can we learn from all this?

● From the Martha Stewart case, we learn that even if the crime itself cannot be proved, you can still go to prison for making false statements to federal officers.

● From the “Scooter” Libby case, we learn that even if the act was committed by someone else, and even if it wasn’t a crime in the first place, you can still go to prison if your statements differ from the statements of others.

● From the Michael Flynn case, we learn that even if the possibly criminal act was committed by the other political party, you can still be convicted of a felony for making incorrect statements to federal officers.

I am not qualified to tell anyone what to do. I am not a lawyer. But I’ll tell you what I intend to do. If I find evidence of a local crime, I will call the police while remaining anonymous. But if I find evidence of a federal crime, I’ll be doubly careful. I may not report it at all, unless it involves national security. Even then, I’ll do so using a pay phone or a disposable cell phone, and disguising my voice.

And if federal agents come to question me about anything at all, I will politely refuse to say a word, invoke my Fifth Amendment right not to incriminate myself, and demand to speak to a lawyer. Saying something to a federal agent that contradicts what someone else says can constitute a crime in itself. Therefore, my right not to incriminate myself must apply to any statement at all. What the feds taught me with the Stewart, Libby, and Flynn cases is keep your mouth shut.

Making people reluctant to talk to federal agents is a stupid thing to do in a time of international terrorism. Instead, we should encourage people to cooperate. But in our zeal to bring down the rich or the politically powerful, we are doing precisely the opposite.

Neither Stewart, nor Libby, nor Flynn had committed provable crimes until the investigators arrived. Back where I come from, officials investigate crimes that have already occurred; they don’t manufacture new ones. Back where I come from, officials investigate crimes to discover who committed them; they don’t investigate people to see if they can discover a crime.

I come from America. It’s a nice place to visit, but it’s a really great place to live. One day I hope to live there again. A good way to make that day come sooner is to end politically motivated prosecutions.

Show me the man and I’ll find you the crime.
‒ Marshal Beria, head of the KGB Soviet Secret Police

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