The prosecution against General Flynn underscored the hazards of speaking to government investigators without first consulting with counsel.¹ The effort to dismiss the prosecution against General Flynn shows that the Department of Justice is now according substantive weight to the “materiality” requirement under the false statements statute.
As stated in the Government’s Motion to Dismiss the prosecution:
Mr. Flynn entered a guilty plea—which he has since sought to withdraw—to a single count of making false statements in a January 24, 2017 interview with investigators of the Federal Bureau of Investigation (“FBI”). See ECF Nos. 3-4. This crime, however, requires a statement to be not simply false, but “materially” false with respect to a matter under investigation. 18 U.S.C. § 1001(a)(2). Materiality is an essential element of the offense. Materiality, moreover, requires more than mere “relevance” or relatedness to the matter being investigated; it requires “probative weight,” whereby the statement is “reasonably likely to influence the tribunal in making a determination required to be made.” United States v. Weinstock, 231 F.2d 699, 701 (D.C. Cir. 1956).
United States v. Flynn, Crim. No. 17-232 (EGS), Doc. 198, Page 1 (D.D.C. May 7, 2020). This passage, drafted by the Government, sets forth an exacting standard for materiality that has not always been applied to “perjury trap” prosecutions.
The Government argues that (1) the interview was “untethered” to its investigation, (2) the investigation was no longer justified because the Government planned to close the investigation due to lack of “derogatory information,” and (3) any misstatement by General Flynn was not material because the interview was conducted without a legitimate investigative basis. The Government concluded that it could not prove either the false statements or their materiality beyond a reasonable doubt. Id. at *2.
The “Crossfire Hurricane” investigation centered on alleged coordination between the 2016 Trump Campaign and Russian officials to influence the 2016 Presidential election. The interview with General Flynn centered upon General Flynn’s conversations with Russian Ambassador Kislyak after the election, during the transition period. At that time, General Flynn was Trump’s designate for National Security Advisor. The Government asserted that the interview with General Flynn regarding events during the transition therefore had little bearing on the investigation into the Trump Campaign.² Id. at *4.
The Government’s Motion details repeated legerdemain by the Comey-led FBI, which included (1) withholding information about the investigation from the Trump Administration, (2) repeatedly changing the justification for withholding the information, (3) vacillating between whether the investigation was a “counterintelligence” or “criminal” matter, (4) failing to coordinate the investigation with the DOJ, (5) considering using the pretext of a “defensive briefing” to conduct an interview of General Flynn, and (6) determining to interview General Flynn without notifying either DOJ or the White House. Id. at *6-7.
As is typical in a “perjury trap” investigation, the government investigators did not give General Flynn, “at any point, warnings that making false statements would be a crime.” Id. at *9.³ The Government further notes that the investigators did not detect any deception during the meeting.4 Then-FBI Director Comey himself did not know whether General Flynn had lied. Id. at *9-10.
The Government further explains the materiality requirement in the argument section of its brief:
The materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular “subject of [their] investigation.” Kim, 808 F. Supp. 2d at 59; cf. Kungys v. United States, 485 U.S. 759, 774 (1988) (false date and birthplace statements in immigration application were not “material” as they were not “relevant to his qualifications [for citizenship]”). And it prevents law enforcement from fishing for falsehoods merely to manufacture jurisdiction over any statement—true or false—uttered by a private citizen or public official.
Id. at *13. The Government argues that the FBI had no reason to investigate General Flynn because it had already decided to close the campaign investigation. Id. Further, the FBI had no reason to investigate the content of any post-election calls between General Flynn and Ambassador Kislyak because the FBI already had recordings of the calls. Id. at *14. The Government asserts that the FBI’s lack of legitimate interest in the post-election calls is underscored by the FBI’s decision to proceed under the old (campaign) investigation rather than opening a new investigation into the calls (of which, again, it already had recordings). The Government’s filing concludes that “the FBI was eager to interview Mr. Flynn irrespective of any underlying investigation.” Id. at *16. Further, “the agents breached the common practice of arranging for the interview through the White House Counsel.” Id.
The Government concludes that the false statements could not be material to an investigation that was undertaken only to elicit those false statements in the first place. Id. at *17. Further, General Flynn’s statement could not have “influenced an investigation that had neither a legitimate counterintelligence nor criminal purpose.” Id. Because the matters giving rise to the materiality defense arose from the Government’s own internal conduct, and not General Flynn’s conduct, the Government argues that the prosecution should be dismissed notwithstanding General Flynn’s previous guilty plea.
The arguments in this Government brief are particularly valuable in defending a “perjury trap” prosecution because they are well-researched and come from the Government itself. Further, at least on this occasion, materiality arguments that are sometimes ignored in other contexts have been given serious consideration. Further, this analysis shows that at least in some cases, irregularities in the Government’s investigation can be used as a substantive defense. Savvy defense attorneys will be able to use these arguments going forward to defend clients from unnecessary “perjury trap” prosecutions. Hopefully, “perjury trap” prosecutions will be aggressively defended by counsel, rather than used by disappointed prosecutors to salvage a win when their investigations fail to show any substantive crime.
As always, if you are the subject of an investigation, have been contacted by a government agent, or otherwise wish to learn your rights and duties in connection with speaking to government officials, you are urged to contact experienced counsel.
1I have discussed this frequent situation, known as a “perjury trap,” in a previous article.
2The FBI never opened any investigation into Flynn’s dealings after the election, regarding any Logan Act violation or otherwise, because it determined that such an act would be difficult to prosecute. Id. at *5. The Logan Act has never been successfully prosecuted since it was passed in 1799, and has not been used at all in the past 150 years. Id. at n.4. The Logan Act was designed to prevent individuals from interfering with the negotiations with foreign governments. Id. As such, the DOJ lacked “a legitimate basis to investigate and prosecute the designated National Security Advisor of the President-Elect under the Logan Act for communicating with a foreign ambassador and seeking to mollify geopolitical tensions in advance of the inauguration of the next President.” Id.
3The Government claims elsewhere that “[t]he interviewing agents failed to issue the common Section 1001 admonitions about lying to investigators.” Id. at *16. These supposedly “common admonitions” are frequently omitted in “perjury trap” investigations.
4An “exculpatory no” may be prosecutable. Brogan v. United States, 522 U.S. 398 (1998). However, claiming not to know or not to remember, as General Flynn did, does not establish a willful lie absent proof that the witness indeed remembered the matter at hand. Id. at *18-19.