In recent days, allies of President Donald Trump have questioned the circumstances leading to the guilty plea of former national security adviser Michael Flynn. Flynn’s lawyers initially led this charge, but even White House spokesperson Sarah Huckabee Sanders alleged on Wednesday that Flynn was “ambushed” by FBI agents working with special counsel Robert Mueller. Trump alluded to similar mistreatment in an earlier tweet.
Let’s start with three simple facts. Fact one: Michael Flynn pleaded guilty to lying to the FBI. Fact two: Lying to the FBI is a crime. Fact three: Flynn’s lies to the FBI were material.
Other folks — Harvard Law School professor Alan Dershowitz among them — have claimed that what Flynn did is not a crime. He’s wrong. I presume Dershowitz can read and understand a statute as well as anyone, so to what precisely does he refer? Is he being disingenuous? In analyzing the Mueller investigation, it’s crucial to expose falsehoods and separate political debates from legal debates.
Let me try to untangle this for you.
Flynn's guilty plea is unassailable. The retired general pleaded guilty in federal district court on Dec. 1, 2017 to a single criminal charge found in Title 18 of the United States Code.
That statute — section 1001 — makes it unlawful for an individual:
"(a) … in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, [to] knowingly and willfully … (2) make any materially false, fictitious, or fraudulent statement or representation…."
Flynn lied to the FBI about several material matters, including communications he had with Russian officials regarding sanctions against that country and regarding a UN Security Council resolution. Flynn also lied to the FBI about work that his company performed for the Turkish government.
I trust you noticed the word “material” in the paragraph above, describing Flynn’s false statements. I also trust you noticed that same word in the statute. For a false statement to the FBI (or to Congress, or to the Department of Agriculture, for that matter) to be a crime, it must be material. We therefore say that materiality is an element of the statute. Because it is an element, it is necessary to prove the crime.
But how do we determine if a false statement or a false document is material? According to the Justice Manual:
“To establish materiality as an element, it is sufficient that the statement have the capacity or a natural tendency to influence the determination required to be made.”
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Further, from the manual:
“[T]he test for materiality under [section] 1001 is not whether the false statement actually influenced a government function, but whether it had the capacity to influence.”
That last sentence is pretty important. Flynn’s lie to the FBI did not have to — as a matter of law — throw the FBI off the scent. It did not have to obstruct its investigation. It only had to have the capacity to do so.
Think of it this way: You submit a false loan application to a federal agency to obtain a particular government benefit. You misstate your income, conceal your spotty work history and doctor your creditworthiness. The agency discovers the falsehood and denies you the benefit you sought. Did you violate section 1001? Absolutely. Your false statement was material even though you failed to secure the benefit. Why was it material? Because you could have succeeded. Put another way, your false statement had the capacity to influence the agency’s decision (even though it did not).
In arguing that Flynn’s lie should not have led to his guilty plea, Dershowitz is playing games regarding the materiality element. Here’s what he told Fox News on Monday:
“Flynn did not commit a crime by lying... The lie has to be material to the investigation. And if the FBI already knew the answer to the question and only asked him the question in order to give him an opportunity to lie, his answer, even if false, was not material to the investigation.”
This premise revolves around the notion that Flynn’s false statements were not material because (he presumes) FBI agents knew the answers to the questions they were asking. Of course, there is no actual support for that premise in the public record.
And, even if the FBI knew or thought it knew the answers to the questions it was asking of Flynn, the false answers it received are still material — remember, a false material statement need only have the capacity to influence the FBI.
In a 1998 Supreme Court opinion, Brogan v. United States, Justice Antonin Scalia wrote:
"Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard of."
And in a 2003 case prosecuted in the Southern District of New York (United States v. Stern) — the location of current investigations into alleged presidential misconduct — then Judge (later Attorney General) Michael Mukasey wrote:
"[The defendant] argues as well that the indictment must be dismissed because his false statements were not material in that the FBI knew at the time he made them that they were false, and therefore no one could have been misled. Here too, the law is against him. All that is necessary is that the government show that the statement, if believed, could have influenced the decision of the agency to which it was directed… A conviction for making a false statement to an FBI agent will be affirmed even if the evidence shows that the agent to whom the statement was made was aware at the time that the statement was false and therefore did not believe it."
When Flynn pleaded guilty, he signed a five-page statement of facts. In that statement, he agreed in writing — and under oath before a federal judge — that the statements he provided to the FBI were false, and materially so. On Wednesday, at what was supposed to be his sentencing, Flynn again told a federal judge that he lied to the FBI, and that he knew this was a crime. It is remarkable for Dershowitz and others to suggest that Flynn did not commit a crime, when the facts and the law and Flynn so clearly say otherwise.
Lying to the FBI is a crime. Flynn lied to the FBI. The lies were material. Flynn acknowledged that fact in writing and in court. That should end the legal debate in this case.