While much has been written about the entrapment of Michael Flynn by the ethically challenged Andrew McCabe and his accomplice Peter Strzok, little discussion has been devoted to the constitutionally dubious federal law under which he was charged. Most commentators have noted in a cursory fashion that it is a felony to mislead the FBI, and then quickly moved on to the latest machinations of the ridiculous Mueller investigation. But the trap set for Flynn wouldn’t have been possible but for a Stalinesque statute that has been denounced by jurists as ideologically diverse as William Rehnquist and Ruth Bader Ginsburg.
Most Americans believe that, to be convicted of perjury, one must lie under oath in some legal proceeding. But the Federal False Statements Act (18 U.S.C. § 1001), passed in the 19th century to punish con artists for presenting fraudulent invoices to the government, is now being selectively deployed by corrupt federal officials to entrap anyone who — under oath or not — makes some inaccurate statement to a government official. It doesn’t matter if any crime, financial or otherwise, has actually been committed. An indictment can be secured even if, as in Flynn’s case, there has been no prior warning of potential legal jeopardy.
If that gives you the creeps, you’re not alone. That notorious right wing agitator, Supreme Court Justice Ruth Bader Ginsburg, wrote an opinion in 1998 outlining how this statute creates enormous potential for abuse by federal officials. She was concerned by “the extraordinary authority” the Federal False Statements Act “has conferred on prosecutors to manufacture crimes.” And Ginsburg was right to be concerned. That is precisely how the FBI, under the “leadership” of James Comey, used it. Nearly two decades before the FBI entrapped Flynn, she presciently described how such people could abuse the law for this purpose:
https://outline.com/kTF8ff
Most Americans believe that, to be convicted of perjury, one must lie under oath in some legal proceeding. But the Federal False Statements Act (18 U.S.C. § 1001), passed in the 19th century to punish con artists for presenting fraudulent invoices to the government, is now being selectively deployed by corrupt federal officials to entrap anyone who — under oath or not — makes some inaccurate statement to a government official. It doesn’t matter if any crime, financial or otherwise, has actually been committed. An indictment can be secured even if, as in Flynn’s case, there has been no prior warning of potential legal jeopardy.
If that gives you the creeps, you’re not alone. That notorious right wing agitator, Supreme Court Justice Ruth Bader Ginsburg, wrote an opinion in 1998 outlining how this statute creates enormous potential for abuse by federal officials. She was concerned by “the extraordinary authority” the Federal False Statements Act “has conferred on prosecutors to manufacture crimes.” And Ginsburg was right to be concerned. That is precisely how the FBI, under the “leadership” of James Comey, used it. Nearly two decades before the FBI entrapped Flynn, she presciently described how such people could abuse the law for this purpose:
§1001 may apply to encounters between agents and their targets under extremely informal circumstances which do not sufficiently alert the person interviewed to the danger that false statements may lead to a felony conviction… the suspect is not informed of the right to remain silent. Unlike proceedings in which a false statement can be prosecuted as perjury, there may be no oath, no pause to concentrate the speaker’s mind on the importance of his or her answers.
https://outline.com/kTF8ff
