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Dershowitz Defends and Criticizes Flynn by Railing Against Entrapment and ‘Fair-Weather Civil Libertarians’

Harvard Law Professor Emeritus Alan Dershowitz came out fighting for Michael Flynn in a column published early Friday morning by the conservative think tank the Gatestone Institute.

Titled: “Flynn Was Innocent All Along: He Was Pressured to Plead Guilty,” Dershowitz reiterates his longstanding belief that the former lieutenant general and national security advisor “should never have pleaded guilty because he did not commit a crime.”

Per the largely pro-Flynn piece (emphasis in original):

For a lie to be a crime under federal law, it must be material to the investigation – meaning that the lies pertain to the issues being legitimately investigated. The role of the FBI is to investigate past crimes, not to create new ones. Because the FBI investigators already knew the answer to the question they asked him—whether he had spoken to the Russian Ambassador—their purpose was not to elicit new information relevant to their investigation, but rather to spring a perjury trap on him. When they asked Flynn the question, they had a recording of his conversation with the Russian, of which he was presumably unaware. So his answer was not material to the investigation because they already had the information about which they were inquiring.

This territory is well-trod for the famous legal analyst.

Dershowitz was roundly criticized on Twitter in late 2018 after telling Fox News that “lying to the FBI is not a crime.”

“I hope the judge understands when he has the case tomorrow that Flynn did not commit a crime by lying,” Dershowitz told Bill Hemmer at the time. “Because the lie has to be material to the investigation. And if the FBI already knew the answer to the question and only asked him the question in order to give him an opportunity to lie, his answer–even if false–was not material to the investigation.”

Earlier this year, and well after a high-profile defense team shakeup, Flynn’s attorney Sidney Powell appeared to repay the public attention paid to her client by approvingly paraphrasing Dershowitz in a bid for probation.

Still, Dershowitz’s column also calls Flynn out for hypocrisy:

There must be a single standard of justice and civil liberties — including the presumption of innocence — that transcends partisan politics. This message has been forgotten by both parties. Flynn himself was among those who shouted, “Lock her up,” regarding Hillary Clinton. Then when the Justice Department tried to lock him up, he got religion.

But Monday’s column doesn’t hone in too deeply on the details of Flynn’s case. Rather, Dershowitz appears to mainly be using Flynn as a cautionary tale to explain his perspective on law enforcement excess and the value of consistently prizing civil liberties.

“Some may wonder why an innocent man would ever plead guilty,” Dershowitz tees. “Anyone who knows how the system works in practice would understand why an innocent man—or a defendant in a close case—might be coerced into pleading guilty. The cruel reality is that if a defendant pleads not guilty and is found guilty, the sentence will be far greater than if he had pled guilty—perhaps even 10 times greater.”

“These are the kinds of pressures routinely used by prosecutors,” the column continues. “Civil libertarians have long been critical of these pressures, but fair-weather civil libertarians refuse to object when these improper tactics are used against Trump’s associates. Partisan hypocrisy reigns.”

The points raised in the column are particularly salient for criminal defendants in the country that locks more people up per capita than any other country. “Over all, there are now more people under ‘correctional supervision’ in America—more than six million—than were in the Gulag under Stalin at its height,” The New Yorker‘s Adam Gopnik noted in 2012.

Law&Crime asked Dershowitz if he thought police routinely over-charge and if his admonishment for federal law enforcement to stop creating crimes bears any applicability to the overall criminal justice system.

To which he replied: “Yes and yes.”

[image via screengrab/ The View]

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