The case of the fallen Trump official shows exactly what is wrong with our criminal justice system.
Michael Flynn, Trump’s former national security adviser. (Flickr, Gage Skidmore)
By John Kiriakou
Special to Consortium News
Much has been made in recent weeks of whether or not former National Security Advisor Mike Flynn should or should not have been prosecuted for making a false statement to the FBI in 2017.
Flynn allegedly lied to two FBI agents about what he had said in a conversation with Russian Ambassador to the United States Sergey Kislyak. But we know now that the FBI agents set him up, emailing each other in the days before they interviewed Flynn and asking whether their goal should be to trick him into lying so that they could prosecute him or “get him fired.”
The Flynn case is, in a nutshell, exactly what is wrong with our criminal justice system. Former Attorney General and Supreme Court Justice Robert Jackson warned us in 1940 that cases like Flynn’s would become the norm:
Supreme Court Justice Robert H. Jackson.(Harris & Ewing, U.S. Library of Congress, Wikimedia Commons)
“The prosecutor has more control over life, liberty, and reputation that any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”
The problem has become largely a bureaucratic one. Do you think prosecutors get promoted or reelected by not prosecuting people? Do you think they get promoted or reelected by notseeking the longest possible sentences for those they convict? Of course not. Just imagine the trophy that Michael Flynn, a retired star lieutenant general and national security adviser, would have been in a prosecutor’s career.
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A 2012 study by ProPublica found that the Justice Department wins 98.2 percent of its cases, almost all as a result of a plea deal. So, what strategies do prosecutors use to ensure a conviction? There are two common ones: charge stacking and venue shopping.
Charge Stacking
Charge stacking is just what it sounds like. Let’s say a defendant appears to have committed a crime; let’s say mortgage fraud. The prosecutor doesn’t charge him with just mortgage fraud. He’ll add a couple of conspiracy charges and maybe a charge each of wire fraud and mail fraud. The defendant is now facing 50 years in prison, rather than five. So, what does the magnanimous prosecutor do? He offers to drop all the other charges if the defendant pleads guilty to the original charge of mortgage fraud. It’s no wonder there are so many innocent people in prison. Most people wouldn’t risk 50 years in prison if they can accept a plea, get a sentence of two years, and make the whole thing go away.
Venue Shopping
Jeffrey Sterling in 2016. (Eleivy, CC BY-SA 4.0, Wikimedia Commons)
Venue shopping is another nice trick. Prosecutors will seek to charge a defendant in the federal district where he or she is most likely to be convicted. CIA whistleblower Jeffrey Sterling is a great example of venue shopping. Jeffrey blew the whistle on racial discrimination at the CIA, as well as an illegal program targeting the Iranian nuclear program. He was accused of passing classified information to then-New York Timesreporter James Risen, who then used the information in a book. Risen lived in Maryland and worked in Washington, D.C., at the time. Sterling lived and worked in St. Louis. But he was prosecuted in the Eastern District of Virginia, known as the “espionage court” because no national security defendant has ever won a case there.
Prosecutors knew that Sterling couldn’t win there, so they had a secretary buy Risen’s book at a Barnes & Noble in Arlington, Virginia. Bingo. They had a “crime” committed in the Eastern District. (The feds argued that because Risen’s book contained classified information, its very existence was a crime. The secretary’s purchase of the book, by this logic, caught Sterling in the act of passing the information to the secretary through the book in Virginia and committing espionage, the charge against him.)
Sterling insisted on his innocence and he decided to go to trial. He was convicted of nine felonies, including seven counts of espionage. He is finally out of prison and still maintains his innocence. But the prosecutors got their scalp.
The system is broken and there’s no easy fix. Ours is an adversarial legal system. The French and others have a magistrate system where the courts investigate crimes and work with the defendant’s attorneys to get the truth. If the person is guilty, the two sides work together to come up with the fairest and most just solution. But in an adversarial system, one side wins and one side loses. That’s why Robert Jackson’s words are so important. Remember the power and authority of the prosecutor. And until we see real, systemic changes in our justice system, we can only keep our fingers crossed.
John Kiriakou is a former CIA counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act — a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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There should be no law for punishing anyone for lying to any federal law enforcement agent. You can be charged under the law for simply voicing a disagreement with an agent during questioning. The way FBI interviews are conducted and served up as evidence in court is by way of a written “report” based on an agent’s notes or even his memory of what was said, rather than using an actual recording.
There’s no chance of false charges or falsified evidence under those procedures, right?
Fredrick Douglas was right!
Mind reading ‘Lane County District Attorney Pat Horton and the Wild Bunch’ published 1983 : see:
manipulatedtrial.de/Horton%20Wild%20Bunch%208311.pdf
This will lead to >> Prosecutors undermined fair trial by Withholding Evidence above 15 years!
Result: This case is riddled with judicial misconduct and legal error. To date the facts of this case have not come to light in an unbiased court of law.
Mr Kiriakou – thanks for this piece. Unfortunately, if you listen as we and now only I do to NPR (and for only two reasons: to deaden the silence and to keep up with the current propaganda generally of a Blue Face tendency, therefore just the lipsticked side of the Janus party) you will be fully aware that this apparent arm of the DNC *refuses,* simply *refuses* to relent the Blue Face line: Flynn admitted to lying to the FBI, now he says he didn’t (subtext – he’s lying now); NPR has YET to even hint at there being *any* evidence in support of Flynn’s position re the lying and the FBI’s coercion.
NPR refuses to relent its Orwellian position in this instance as it also refuses to let go the “Russia did it” thread. I suspect that the majority of their audience – bourgeois, well-educated (but unthinking beyond very heavily marked, high walls), self-satisfied, “any Dem” will do (albeit that the policies won’t change, the perspectives will remain as navel-gazing, we are the indispensable, exceptional nation, the slaughtering of and destroying of other peoples to fatten the pockets of all aspects of the MIC-DC will continue) – believe everything NPR broadcasts. Ignorance is clearly blissful for these folks and deliberate.
The trial of all crimes, except impeachment, shall be by jury according to article 3 of the constitution. The corruption of the judicial system starts with non-jury criminal trials and goes down hill from there.
Avoiding the expense of jury trials has nothing to do with the remuneration jurors receive. They get only a few pennies travel time for the loss of income if they are on a jury rather than on the job. Most workers can’t afford to be on a jury. So most juries are not representative of the state and district. If there is not a police officer’s grandma and a drug dealer’s cousin on the jury panel it is not representative of the state and district.
Legislation requiring prosecutors to prosecute only the most serious offense for crimes that do not involve the loss of life or limb would take a big bite out of charge stacking. Apparently a majority of congress prefer the corruptions of plea bargaining to constitutional trials.
Both our civil and criminal legal systems* are very badly broken, and there’s no easy fix for either.
Judicial corruption arises from greedy powerseekers choosing legal careers, and being selected as political operatives.
They choose the excuses of the rich, denounce their victims, ignore the laws and Constitution completely, and win!
I have known over 70 state and federal judges in 49 cases in 5 states and DC, and swear to you that they are all crooks.
Most of us are afraid to hear of such corruption, and wave it off as the excuse of “losers” because that feels safer.
Lying and scamming in judgments are their chief life skill, which they see as funny, and as a professional qualification.
They cannot be prosecuted because they are all corrupted by loyalty to their tribe of judiciary, DOJ, and political party.
They also have overriding prejudices of wealth, race, sex, religion, ethnicity etc. that outweigh any concern for rights.
Law firms usually must send a white, female, Jewish, Italian, etc., lawyer to appear before a judge of that description.
Our highest courts do not think twice about misquotes of laws to reverse their meaning, misstatement of past judgments to reverse theirs, lies about rules, documents, essential facts, anything to make excuses for injustices. The public never knows, and lawyers must be silent. See counterpunch dot org/2010/12/10/why-judicial-corruption-is-invisible/.
Mr. Kiriakou is right that “until we see real, systemic changes in our justice system” we have no justice system at all.
*Crimes are offenses against society; civil cases are between persons, such as financial losses or injuries. Civil cases have a complainant but no prosecutor allowed to exact false confessions through threats.
I know what you say to be true .
Besides the “justice system” and the political nature of the courts, the “plea bargain” arrangements, as shown in the example, are completely unfair, as they allow /force someone to admit guilt which is not warranted, to avoid a worse fate. No attempt is made to find “the truth”.
As for this case, Flynn as preparation for his new job would be expected to speak to the Russian ambassador and others, yet this was allowed to be a crime, or leading to one, for political gain. The behavior of senior members of the US establishment have shown shameful hypocrisy and ill will. Justice has been studiously avoided.
Now that everything has become politicized (even the drug hydroxychloroquine), with the Justice Department and US Government Intelligence Agencies becoming “outreach” departments of the DNC, there is a split between those who are above the Law, our “trustworthy” Establishment, and those that are to be made examples (Flynn, Manafort and Gates– not the Podesta Group or Greg Craig, who worked closely with them in Ukraine, Kiriakou, Manning, Binney, Sterling, Papadopoulos, Stone, etc). The speed at which the CIA turned Russiagate onto Bernie Sanders shows the Democrat Establishment tent is very small and exclusive.
“The system is broken and there’s no easy fix.”
“We don’t have a justice system, we have a legal system”
“We don’t have healthcare system, we have a sick care system (for profit making)”
“We have the freedom to make money no matter what the consequences are for people and environment”
I could quote many more about this empire in terminal decline……
Thank you John, and all other whistleblowers, for your service in exposing the fraud that out country has become….
The system isn’t broken–it’s fixed!
A wise man once said “We don’t have a justice system, we have a legal system”.
And talking of loyalty to our ‘protector’ – how loyal is/was Donald Trump to his staff, compaign managers, helpers etc.? Would you ever consider working for a man so devoid of loyalty to others. I could easily imagine him dumping Melinia should he wish to promote his brand. Think Flynn, Page, Maniforth, Pappadopolus, Stone, etc.
Let me make this clear. America is self-destructing. A malignant narcissist in charge and a man who cannot construct a sentence is an alternative. A stock market devoid of reality and a 1 percent devoid of conscience. Any remote consideration of the other 99 percent is soley based on profit. Any civilization that cannot reverse itself is doomed.
Your words need to be repeated over and over until people understand their significance.
“Let me make this clear. America is self-destructing. A malignant narcissist in charge and a man who cannot construct a sentence is an alternative. A stock market devoid of reality and a 1 percent devoid of conscience. Any remote consideration of the other 99 percent is soley based on profit. Any civilization that cannot reverse itself is doomed.”
“2012 study by ProPublica found that the Justice Department wins 98.2 percent of its cases, ”
Isnt this exactly what we disparage the justice systems of designated enemies for?
You hit it on the nose Andrew.
A few years back a certain political party and the well know Bush family openly advocated for the firing of certain “unsuitable fed prosecutors”. The idea being that a certain political party a d some of it’s very well heeled members were “rigging” the prosecutorial mechanisims in order to go after political enemies.
This was obviously the case but they avoided intervention. They had too many friend in high places. (courts maybe?)
Chew on this quote everyone.
“Where Justice is denied, where poverty is enforced, where IGNORANCE PREVAILS, and any one class is made feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons or property will be safe.”
Fredrick Douglas
Money laundering became illegal with huge penalties directed at drug lords, but is now used against anyone who used cash in a crime. Same with charging someone with terrorism. Also the charge “conspiracy” means you knew about a crime but didn’t report it. So if you find out your brother cheated on his taxes and you failed to snitch on him, you conspired to defraud the government.
This is one of the many things wrong with the criminal justice system in ALL of america. I would venture to guess that 85% of all FBI convictions are setups!