Dershowitz: Spread the justice in Flynn case but restrain the judge

Now that Attorney General William Barr has rightly dismissed the case against Michael Flynn, the Justice Department should review all similar prosecutions and dismiss those that come within the same principles.

If these principles were persuasive enough to warrant action in this case, they cannot rightfully be limited to one high profile case, without lending support to the accusation, even if false, that politics could have played a role for Flynn. The Justice Department must not only be just. It must also appear to its citizens to be just. So what are these important principles?

Even if some answers Flynn gave to the FBI were not entirely truthful, they were not material to any legitimate investigation. It is difficult for some to understand that lying to the FBI or to a grand jury is not simply by itself a crime. The lie has to be material, which is a technical word that can have several meanings. One such meaning is that if the FBI already possessed clear evidence in an investigation that provided indisputable proof of the answer to the question, the answer given by a person being questioned, whether true or false, could not be declared material to the investigation.

If the question is “did you ever speak to this person?” and the FBI already had a valid recording of the conversation, the purpose of the question is not to learn whether the conversation had occurred. The FBI already had conclusive evidence that it did occur. Instead, the purpose was simply to see whether the subject would lie or tell the truth. If the purpose was not to gather evidence of a past crime, but rather to create an opportunity for the subject to commit a future crime, then some critical questions arise. Is that a legitimate function of the FBI? Should the FBI have the authority to give criminal truth tests to citizens who have not committed any crimes?

Another issue is whether the FBI had a legitimate interest in investigating a possible violation of the Logan Act, which bans citizens from engaging in “any correspondence or intercourse” with any foreign government. The Logan Act is a dead letter. No one has ever been successfully prosecuted for violating it and the only prosecutions were in the 19th century, despite the reality that its terms have been violated with impunity by hundreds of citizens, like Jimmy Carter, Jesse Jackson, Ronald Reagan, and more. The Logan Act was merely a pretext for springing a perjury trap on Flynn and the FBI had no legitimate investigatory purpose in asking him questions that were not material to the case and that they already had the answers.

The second principle cited by Barr in his decision relates to the failure by the government to disclose potentially exculpatory material before Flynn pleaded guilty. This is a widespread problem that goes well beyond this case. There are, I believe, many current federal prisoners whose right to have access to exculpatory material may have previously been violated.

Barr has to now appoint a group of prosecutors from around the country to review all the cases brought to their attention by defense lawyers that allegedly fall within the righteous principles he articulated as reasons for dropping the case against Flynn. If any of these defendants have suffered injustices comparable to those suffered by Flynn, they need to have their prosecutions dropped. Only then will justice be viewed as truly universal.

Generalizing these principles might also defuse the stink bomb that Judge Emmet Sullivan is about to set off in his courtroom by appointing a special prosecutor and inviting critics of the Flynn decision to file partisan amicus briefs meant to hand him legal cover for rejecting the Justice Department motion to have this case dismissed. But if that dismissal is part of a more general policy of tossing out cases based on the kinds of injustices Flynn experienced, it will be more difficult for Sullivan to substitute his judicial judgment for the policies of the executive branch, something he has no right to do under our system of separation of powers in the government.

Nor did Sullivan have the legitimate authority to appoint a retired judge, or anyone else, to argue that the Justice Department decision to end the prosecution is wrong. That decision, whether right or wrong on its merits, is entirely within the authority of the executive branch. The judicial branch may not second guess it, unless it has violated the Constitution, which no one alleges. But Sullivan is violating the separation of powers. He exceeds his authority by appointing a special prosecutor and is not above the law.

Barr was definitely within his authority under the Constitution to dismiss the case against Flynn. He would still be within his authority to dismiss all other cases that come within the principles that led to the Flynn dismissal. But more importantly, generalizing such principles is the right thing to do.

Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He has written more than 40 books, including his newest one, “Guilt by Accusation: The Challenge of Proving Innocence in the Age of Me Too.”