Michael Flynn prosecution

Here’s Some More Refreshing “Kool-Aid”: Prof. Turley Explains The Mike Flynn Scandal

/ Jack Marshall / 31 Comments

The prevailing attitude toward the growing and eventually irrefutable evidence that hostile forces within the FBI and the Justice Department were unethically,  illegally and unconstitutionally working behind the scenes to undermine the President and, if possible, have him removed from office was that this was just another right-wing conspiracy theory. That spin allowed the mainstream media to justify refusing to investigate the many smoking guns that were being uncovered,and to report on them using the familiar techniques it employs when it wants to protect its fellow Axis of Unthical Conduct allies, the Democrats and “the resistance.”

The illegal FISA  warrants to allow surveillance of the Trump campaign that a federal judge eventually ruled constituted both judicial and prosecutor misconduct were a small part of the ethics train wreck that was the Mueller investigation. When Ethics Alarms accurately described this breach of law and ethics, I was accused here of “drinking the Kool-Aid,” in a now familiar ploy by blinded or unscrupulous partisans to throw up metaphorical sand and dust, allowing wrongdoing to prevail. By their definition of the term, Prof. Jonathan Turley has mixed-up another delicious pitcher of the beverage. Yum!

Let me interject here what a continuing Ethics Hero Turley is. Almost alone among law professors, scholars and academics, he has been willing to call out ethical misconduct throughout the Trump Administration years thus far without consideration of who benefits or whose political fortunes the truth might harm. For this, progressives have regularly denigrated as a traitor to the cause, the cause being “Get Trump.”  Turley is a Democrat and an old fashioned liberal—you know, the kind that had integrity—but never flinches when it is time to call out the Left on its increasingly unconscionable conduct.

Now the Constitutional Law expert has turned his legal analysis skills on the developing Michael Flynn story. His unequivocal conclusion: “The Flynn Case Should Be Dismissed In The Name Of Justice.” Continue reading →

Popehat Nails Dershowitz For Misrepresenting The Law

/ Jack Marshall / 41 Comments

Ken White of Popehat comes out guns blazing to take celebrity lawyer Alan Dershowitz down for misrepresenting the law in several of his increasingly frequent media appearances. Ken nails his target, too. Even the former prosecutor’s characterization that Dershowitz is lying is not excessive or unfair.

You need to read the whole post, for it is superb, thorough and airtight. Here is a precis, however, in Ken’s words, not mine.

The subject of Professor Dershowitz’s dishonesty — for the purpose of this essay — is General Michael Flynn’s lies to FBI agents and his subsequent guilty plea for lying under 18 U.S.C. section 1001. Professor Dershowitz has asserted, repeatedly, that Flynn did not violate Section 1001 because his lies were not “material” — that is, meaningful. He claims that the lies were not “material” because the FBI knew at the time Flynn was lying, and was not fooled…

Dershowitz has promoted the same point explicitly in writing:

When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed “material” to the investigation, because the FBI already knew the truth.

This is a perfectly arguable statement of what the law should be. But someone reading Dershowitz’s column could be forgiven for thinking that’s what the law is — or, at least, that the law is unsettled on the point. The essay utterly fails to divulge that every court to consider the argument has rejected it….

I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false. To the contrary, the Court has signaled that it would reject that argument…

n short, there is no credible argument that Alan Dershowitz’s repeated assertion is a correct statement of the law. It would be malpractice to advise a client that way. It would be deceitful to tell students. And it’s dishonest to tell the nation without telling them that this is your theory of what the law should be, without revealing what the law is. Advocates push the boundaries of the law. They ought to. But honest advocacy doesn’t involve lying about the current state of the law. Indeed, lawyers have an ethical obligation to reveal contrary authority when arguing in court, and judges will burn you down to the ground if you don’t. I would argue that legal experts — who trade on their reputation for knowing what the law is — have a similar ethical obligation to reveal when existing law flatly contradicts what they are arguing.

Continue reading →