Monday, May 22, 2017

Taking the Fifth: I'd Like to Testify about Flynn

Insofar as it is fun to point out the utter hypocrisy of General Flynn, presumed traitor and foreign agent,  former cheerleader who loudly proclaimed at the Republican convention that being under FBI investigation makes one unfit for office, claiming protection of the fifth amendment and refusing to comply with a Congressional subpoena for personal papers related to said (ahem, cough cough, alleged) treason, this is exactly the sort of situation the Fifth amendment's guarantee against self-incrimination was intended for. And it in and of itself shouldn't be construed as a signal of guilt. 

Let me revisit a couple of the many times in which the clarion chorus of "guilt by suspicion" just for old time's sake. OK, and for comparison.

Lois Lerner was a senior civil servant -- not a political appointee -- who was in charge of the division that supposedly targeted conservative non-profit organizations for investigation of their tax-exempt status. I'll cut to the chase on the substance of the allegations, which was horse hockey; the IRS were actually doing their jobs in trying to find the extent of political activity by groups that were hiding behind tax-exempt status as "welfare organizations" (forbidden by the tax code) and were investigating both left-leaning and right-leaning groups in roughly equal numbers. (It would have been malpractice not to investigate groups with anti-Tax names whose primary activity was political as to whether they were illegally using tax exemptions for political activity. Their mantra was they didn't want to pay taxes, and they didn't.)

That said, under the tender ministrations of the reprehensible Congressman Darrrell Issa and his Orwellian House Oversight and Government Reform Committee, Lerner was called to testify on the substance of the matter. That's a reasonable request for a normal investigation, but one fraught with peril when the motivation of the investigation is purely to create a fake scandal for the benefit of the electoral fortunes of one party, as was the case here.

Civil Service protections are limited but intend to protect employees in career service from influence to violate their oaths from the political branches of government. So, basically, the same principle that protects such employees from being harassed by, say, the President to use their authority to persecute individuals or groups unjustly, equally extends to them when members of Congress attempt to exhort them to suborn themselves to create a fiction about events.

It's not difficult to understand why this in turn extends to the proper use of the Fifth Amendment as an additional protection -- one might even say the root protection -- in the situation Lerner was in. No matter what she was going to testify, the majority members of the committee were looking for a scalp, and they would try to twist her testimony and entrap her into technical perjury to create wrongdoing where there might not have been one.

To say that in taking the Fifth, Lerner was evading scrutiny, is not correct. The GAO and the Inspector General of the IRS both investigated the matter thoroughly, Congressional Committees combed through reams of documentary evidence, communications were reviewed, and dozens of people interviewed, all leading to no evidence of wrongdoing or even anything close to the substance of the allegations made. The FBI/DoJ investigation determined there was no crime. (It's worth repeating again that the allegations were brought to the Republican Congressmen by Republican-supporting political groups that were using taxpayer money, through their tax-exempt status, to try to change tax policy, and not incidentally aid these same Republican Congressmen in their election efforts.)

Lerner was an honest actor in all this. Being guilty of mismanagement (a conclusion the FBI and Department of Justice came to and voiced publicly, for however they seem to be experts in the matter) is not the same thing as being corrupt. Nevertheless, Issa and the majority proceeded to hold Lerner in Contempt of Congress, a finding that does not have strict parameters the way a finding of contempt of court in a civil or criminal proceeding does, and which was, surprise, very much politicized under the "if she has nothing to hide, why's she taking the fifth?" theory. (Explicitly articulated at the time by many, including current White House Press Secretary Sean Spicer.)

Well, duh. She took the fifth to avoid being persecuted, and the holding of contempt pretty much proves what was in store for her. But had she testified to the Committee, she would have subjected herself to legal jeopardy through possible perjury. Issa himself seemed to not understand the fifth amendment in both intimating Lerner had committed crimes and insisting she not use her Constitutional right.

In a criminal case, as you probably know, there's no way to compel a defendant to testify. This is to avoid a similar problem under cross-examination, where a prosecutor can take statements that may or may not be germane and do a good job of conflating them so a jury might be persuaded it constitutes evidence. A defendant once on the stand can't refuse to answer questions without that in and of itself seeming to show guilt.

Let me briefly also mention Bryan Pagliano. Don't know who he is? He's the sysadmin who installed and ran Hillary Clinton's private residential email server (and successfully defended it against hackers). If you google Mr. Pagliano, he's mentioned almost exclusively in such stalwarts of fake news as the World Net Daily, Free Beacon, and Fox News, because his refusal to comply with subpoenas to Rep. Jason Chaffetz' House Oversight Committee "investigation" into Clinton's email server -- itself a spinoff series from the 11 different Benghazi investigations -- was also touted as evidence of his guilt in a crime. (If you think this has stopped, think again: Chaffetz as recently as February 2017 asked Attorney General Jeff Sessions to criminally charge Pagliano for invoking his fifth amendment rights.)

Pagliano, it's worth noting, cooperated with the FBI in its investigation, in exchange for immunity. The FBI didn't comment on his involvement in James Comey's infamous "she's innocent but she's really guilty of something" announcement in July of 2016, but he clearly made official statements to investigators that may or may not have been made available, whole or in part, to Chaffetz' committee. Since Chaffetz was also in the middle of the infamous October, 2016 leak of the supposed new cache of email from Clinton related to the Anthony Weiner case, which supposedly forced Comey's hand at making the second announcement that hurt Clinton at the polls, it's not unreasonable to assume he and members of the committee had access to FBI material on Pagliano's involvement in the original server and mobile computing access investigation. In fact, it's absurd to think otherwise.

So in turn, Pagliano being called to testify twice -- in September, 2016! What timing! -- before Chaffetz was clearly intended to be a political stunt, but also clearly would have put Pagliano in criminal jeopardy of perjury even with no previous infraction of law on his record.

I will add parenthetically that while we can't know precisely what Pagliano told FBI and DoJ investigators, if he did commit infractions of law while in the private employ of Clinton before or after she became Secretary of State, they would have had to have been technical ones. There's no law against setting up an email server for someone. If there were federal rules about email forwarding, it's not incumbent upon a sysadmin to know the access or storage rules for the recipient of an email. I digress a little, but the idea that a guy like Pagliano -- not a political player, not a wealthy guy -- is guilty of something because he takes an immunity deal is not convincing, given that immunity would be a way of ensuring he wouldn't come into legal jeopardy and have to endure the humiliation and even greater legal expense of defending himself. I just get the sense of Pagliano is that he's a fellow geek hired to do a job and has gotten the short end of the stick from history here, and would prefer to fade to obscurity.

All that noted, there's nothing substantive he could have added to the Congressional inquiry, already itself quite dicey, and Chaffetz, with access to the confidential FBI investigation, was in a perfect position to ask questions in such as way as to create the impression of wrongdoing on Pagliano's part and in turn possibly actionable perjury. And despite this, Chaffetz (as of February 2017 at least) is still trying to pursue a criminal case against him. I'll repeat this: he was granted immunity by the FBI, but not by Congress; he cooperated fully with the authorities; the FBI concluded there were no crimes committed; but Chaffetz is still trying to criminally persecute the guy.

So that brings us back to General Flynn. I'm no legal authority but the prima facie case that he committed crimes seems to be relatively evident. He is the subject of an ongoing FBI investigation of which he the primary target for criminal wrongdoing, and his attorney has been informed of this. We know this because his attorney said this publicly.

So his refusal to comply with subpoenas from Congress to supply materials, which would then be part of the public record, is fairly consistent with the intent of the fifth amendment. Flynn, unlike Lerner, was a political appointee. He is also subject to stricter standards under the Uniform Code of Military Justice, as a reserve and general officer of the United States. He has both an astounding amount of legal jeopardy and multiple sources of that jeopardy. It's possible (not saying it is so, but that it might be so) he's innocent on either technical or substantive grounds. But he has to have his fair hearing in court, as part of the system, and the right against self-incrimination is just as important for the apparently guilty as for the exonerated.

And even with a friendly Congress, there may be an interest in throwing him under the bus to save Trumpolini's bacon, or possibly the Vice President, or all of the above. The suspect perambulations of Devin Nunes in relaying private Congressional investigatory material directly to Trumpolini is Exhibit A that at least some Congressmen of the majority party are more than willing to short circuit due process in the interests of political expediency, or whatever odd motiviation Nunes had.

Some people-- notably former drug czar General Barry McCaffrey, a one-time intimate of General Flynn in an intelligence capacity  -- have for months now suggested Flynn has some mental health issues. (And as recently as last week on MSNBC.) I hope it is self-evident that if this is the case, it's a material factor in a question of criminal culpability with respect to the crimes of which he is accused.

Whether this is the honorable thing for Flynn to plead the fifth is another matter. There is the concept of the interest of the country before personal fortune (sort of the crux of the substance of the allegations) and in some cases that means willingness to go to prison for the truth to be told. I'll say that as loudly about Edward Snowden (also apparently guilty of the crimes of which the government accuses him) as I would about Mike Flynn. Doing the time sometimes exonerates you in the court of history; coming clean (a la John Dean) can make you a prophet with honor. So I hope General Flynn relents, even as I admire the wisdom of his counsel in urging him to take the protection of the fifth amendment.

So while I will not be joining in the catcalls of "if he has nothing to hide, why is he taking the fifth?" (tempting though it may be), I do not excuse General Flynn of the higher duty to his country. But I do not have the intimidating powers of government at my finger tips. That's why we have a bill of rights in the first place, and we can't pick and choose who gets its protection. Rights are inalienable, as someone once said.

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