By Alan M. Dershowitz:
More than a year ago I wrote that it was clear General Michael Flynn should never have pleaded guilty because he did not commit a crime. Even if he lied to the FBI, his lie was not “material.” For a lie to be a crime under federal law, it must be material to the investigation – meaning that the lies pertain to the issues being legitimately investigated. The role of the FBI is to investigate past crimes, not to create new ones. Because the FBI investigators already knew the answer to the question they asked him—whether he had spoken to the Russian Ambassador—their purpose was not to elicit new information relevant to their investigation, but rather to spring a perjury trap on him. When they asked Flynn the question, they had a recording of his conversation with the Russian, of which he was presumably unaware. So his answer was not material to the investigation because they already had the information about which they were inquiring.
From a legal and policy point of view, encouraging the FBI to misuse its legitimate authority to investigate past crimes, solely to create future crimes is both immoral and illegal. That is why Congress added the word material to its statute.
Because Flynn’s answers were not material to what the FBI said it was investigating –- a violation of a never-used law, the Logan Act, that prohibits private citizens from negotiating with foreign governments — they did not constitute a crime.
At the time, that argument was mocked by the usual suspects: fair-weather civil libertarians who would have supported the argument if it had been made on behalf of a liberal Democrat but who rejected it when made on behalf of a Trump Republican. They claimed there was no authority supporting this argument, despite the citation of several cases by eminent judges.
Read more: Gatestone Institute
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