Lawfareblog Doubles Down With an Actual Legal Author -- but Gets Same Bad Results

AP Photo/Manuel Balce Ceneta

Robert Litt’s effort to take down the DOJ motion to dismiss the case against General Flynn tries hard, but it just can’t save Lawfareblog.

Robert Litt, former General Counsel to the Office of Director of National Intelligence under James Clapper, and long-time senior management official in the Department of Justice, attempts to ride to the rescue of Lawfareblog Trio Ben Wittes, Quinta Jurecic, and Susan Hennessey’s dubious piece of faux legal analysis about the DOJ filing seeking to dismiss the prosecution of General Michael Flynn.

Yesterday, I offered this lengthy effort of “constructive criticism” of the … well, I’m not sure what to call the story that Wittes/Jurecic/Hennessey posted Thursday evening following the filing of the motion earlier in the day.

But the article written for Lawfareblog by Litt is of a different character.  Robert Litt has a long-established pedigree of understanding the issues under review.  I don’t think it’s an accident that the proprietors of Lawfareblog had him come riding in to defend their honor.  Alas, disappointment once again — but they are used to that.

First, Litt calls the DOJ motion “seemingly unprecedented.”  Well, as I noted in a tweet recently, I did the exact same thing as a federal prosecutor in a case in 2001.  I would also call attention – as others have – to the fact that DOJ did the same thing AFTER Alaska Senator Ted Stevens was convicted at trial in the courtroom of Judge Sullivan.  So filing a motion to dismiss a criminal case under Rule 48(a), even after a conviction or guilty plea, is hardly “unprecedented.”  In fact, case authority from all across the country exists on the issue of Rule 48(a) motions to dismiss, and many of those cases involve circumstances where such motions were made after a conviction had occurred.  These motions are almost always made “in the interests of justice”, and sometimes the “interests of justice” don’t reveal themselves until after a conviction is had.  That doesn’t mean the Department should not act.

Litt next calls attention to the fact that under the precise words of § 1001 – the statute which Gen. Flynn was charged with violating – false statements made to the FBI do not need to be made as part of an “investigation” in order to be potentially criminal.  He correctly quotes the language of the statute where it states that the false representation must be made “in a matter within the jurisdiction of” a federal agency.  And that is absolutely true.

But that language is a “jurisdictional” precondition to the false statement being a federal crime — it has nothing to do with the issue of “materiality” which is the basis upon which DOJ filed its motion.  Bob Litt knows that, and the fact he would posit this facetious claim undermines the supposed seriousness of his piece, giving a knowing reader pause to wonder if reading further is really worth the time.

The issue is understood best through a hypothetical: Assume two FBI agents come to your home and ask you questions about information you included on a loan application made to your bank which might not have been completely accurate.    Your answers to their questions certainly pertain to a matter “within the jurisdiction” of a federal agency, because “bank fraud” is a federal crime.

But let us alter the facts now and consider that the FBI agents came to your home and said they wanted to ask you questions about a fight you had the night before with your spouse, during which a lamp was thrown, just missing hitting you in the head.

Domestic violence matters are not “within the jurisdiction” of a federal agency, so any false statements you might make to the FBI agents about the fight with your spouse would not constitute federal crimes under the statute – even though you admittedly lied to the agents.

Now alter the facts again — assume you were on an airplane when you had that fight with your spouse, and the same FBI agents come to your home and want to ask you about the fight.  In that situation you are back to a circumstance where the matter is “within the jurisdiction” of a federal agency because disruptions in a commercial aircraft that disrupt the flight crew are a federal crime.

The language of the statute making false statements on a matter “within the jurisdiction” of a federal agency a crime has nothing to do with the flaw in the case against Gen. Flynn.  The flaw in the case against Gen. Flynn had to do with the lack of “materiality” in the answers given by Gen. Flynn during the interview.  “Jurisdiction” and “materiality” have as much in common as a swimming pool and a septic tank — they both have liquid in them, but that’s about it.

Litt’s next effort at misdirection comes when he writes the following:

And it beggars the imagination to suggest that following up on the Flynn-Kislyak conversation, along with Flynn’s false statements to Vice President Mike Pence and press secretary Sean Spicer, was outside the FBI’s jurisdiction.

Again, the “jurisdiction” of the FBI to conduct an investigation into Gen. Flynn was not, and has never been the issue.  Raising it is a transparent effort to confuse the reader.  The DOJ motion never says the FBI lacked “jurisdiction” – the FBI opened the “Crossfire Razor” investigation of Gen. Flynn on August 16, 2016, and nothing in the DOJ filing suggests that was an illegitimate undertaking — unwise and unwarranted maybe, but not outside the FBI’s jurisdiction.  The problem arises from the fact that the FBI put in writing on January 4, 2017, that its investigation was complete, found no derogatory information, and further investigative activity was not warranted.  Nevertheless, it then went out and engaged in further investigative activity by interviewing Gen. Flynn.  That called into question the “materiality” of his answers.

The requirement of “materiality” is one of those legal issues that causes even the eyes of federal prosecutors to glaze over when they endeavor to explain why and how it is an “element” of a § 1001 offense.  This is an issue that was long fought over in the courts, and wasn’t conclusively resolved until the Supreme Court’s 1995 decision in U.S. v. Gaudin.

Prior to Gaudin, some courts held that “materiality” was a necessary finding, but it was an issue for the Judge to decide.  If the Judge found “materiality” he would then instruct the jury accordingly.  If the judge found a lack of materiality, he would dismiss the case.  The Supreme Court’s decision resolved these issues, holding that “materiality” is an element of the offense, the government must present factual evidence of “materiality”, and the jury must unanimously find that “materiality” existed – not the judge.

“Materiality” involves the question of whether the false statement was “meaningful” to the matter “within the jurisdiction” of the federal agency.  If not “meaningful” then the government has no real interest in the truth or falsity of the statement made – beyond the fact that it doesn’t like to be lied to.  But the “freedom” to lie to the government outweighs the government’s mere interest in not being lied to.  This is why not all lies to the FBI are crimes.

But Litt then doubles-down on his mischaracterization about the DOJ filing.  He claims that DOJ’s admits it was permissible for the Agents to interview Gen. Flynn notwithstanding the existence of the Closing “Electronic Communication” (EC) because DOJ states in the motion that the agents could have interviewed Trump Spokesman Sean Spicer or VP Pence after the Jan. 4 EC about their statements regarding Gen. Flynn:

In fact, the department’s motion virtually concedes the point. It dismisses Flynn’s lies to Pence and Spicer by saying that “[h]ad the FBI been deeply concerned about the disparities between what they knew had been said on the calls and the representations of Vice President Pence or Mr. Spicer, it would have sought to speak with them directly, but did not.” But that would be a kind of investigative activity, and under the DIOG, either the FBI has a basis to investigate or it doesn’t. If the facts justified talking to Pence about Flynn, they justified talking to Flynn.

But the DOJ motion does not concede that point – “virtually” or otherwise.  The reference to questioning Spicer and VP Pence is part of the DOJ’s “admission” that the FBI offered up pre-textual justifications — as reflected in various contemporary writings and interviews of persons involved — for its interview of Gen. Flynn after the Closing EC.

Spicer’s comments defending Flynn came on January 12.  VP Pence’s comments were made on January 13.  The point made in the motion is that the FBI never considered interviewing Spicer or VP Pence in the 11-12 days before they interviewed Gen. Flynn.  That lack of interest exposed the pre-textual nature of the FBI’s later-to-be proffered justification for the interview over concerns about Gen. Flynn having lied to other Administration officials, and that was part of their motivation to interview him.  That this was the point of the DOJ motion is clear from the language used:

“[h]ad the FBI been deeply concerned about the disparities between what they knew had been said on the calls and the representations of Vice President Pence or Mr. Spicer, it would have sought to speak with them directly, but did not.”

It might have been true that those interviews would have been done without a properly predicated investigation, and answers given by Spicer and VP Pence would have not been “material” for the same reason the answers given by Gen. Flynn were determined to be not material – that’s not the point DOJ was making.

The point DOJ was making is that the FBI showed no interest in the finding out about the accuracy of what Gen. Flynn said to Spicer and Pence, as the only way it would have known what Gen. Flynn actually said to Spicer and VP Pence would have been to talk to Spicer and VP Pence, and the records show the FBI never even discussed doing so.

This is the kind of “misdirection” that lawyers engage in regularly in the back-and-forth of litigation motions work.  You take words from the opposition’s position and then try to use those words to wring out a concession on a point unrelated to the position that was taken with those words.  It’s a deceptive mischaracterization, but it is not an uncommon tactic in “lawfare”.

More disappointing, however, is that Litt repeats the blatantly false statement I highlighted in the Wittes/Jurecic/Hennessey story about what Gen. Flynn said to the Russian Ambassador about the newly imposed sanctions.  In repeating the same falsehood, Litt exposed himself as a NeverTrump partisan who will repeat falsehoods in pursuit of his partisan ends.  Litt writes:

The attorney general and his minions are making the astounding argument that when the FBI—aware of extensive Russian interference in U.S. politics in order to benefit the Trump campaign—learned that the incoming national security advisor requested that Russia not respond to the sanctions that were imposed…

As I pointed out in my earlier story, this is a bald-faced lie.  The Special Counsel’s Office prosecutor who wrote the plea agreement with Gen. Flynn, including the  “Factual Basis” used to support the plea agreement, wrote the following about Gen. Flynn’s communication with the Russian Ambassador on the issue of sanctions:

“Immediately after his phone call with the [Presidential Transition Team] official, FLYNN called the Russian ambassador and requested that Russia not escalate the situation and only respond to U.S. sanctions in a reciprocal manner.

In their article, Wittes/Jurecic/Hennessey wrote that Gen. Flynn “advised the Russian government to not respond….”

Litt’s mischaracterization is slightly better – but it’s still a lie.   Baby steps I guess.

But Litt then takes that mischaracterization and makes use of it in his article in a way that Wittes/Jurecic/Hennessey – not being deep thinkers — never came up with.  He states that DOJ’s position means the FBI:

could not even “collect information or facts to determine” whether this created a counterintelligence threat. This cannot be right.

That is a “Straw Man” of gigantic proportions.  The “this” to which Litt is referring is the lie he just wrote about Gen. Flynn asking the Russian Ambassador to “not respond to the sanctions.”   No one – not even the Special Counsel – claims Gen. Flynn asked (or “advised” according to Wittes/ Jurecic/ Hennessey) the Russians to “not respond” to the sanctions imposed by the Obama Administration.

The mischaracterization offered by the Lawfareblog denizens is made in order to imply that Gen. Flynn was seeking to undermine Obama’s sanctions policy, by trying to guide the Russians along with a tacit understanding that the sanctions would soon be lifted so there is no need for them to respond.

But that is not what Gen. Flynn said — there is ZERO evidence in the record that he said any such thing, or that any such implication is fairly taken from what he did say.

But Lawfareblog just can’t seem to help itself.  There must be something in the water over there.