Former United States National Security Advisor Michael Flynn (Photo by the Defense Department via Wikimedia)
On any given week there is enough grotesque behavior and despicable acts being exposed within our criminal “justice” system that it could make any sane person outraged. For example, last week it came to my attention that officers in South Dakota were regularly subjecting innocent citizens to involuntary catheterization. Why was this grotesque violation of constitutional rights being committed? To try to catch low-level drug offenders, of course. Want to be even more outraged? Know that one of the citizens being subjected to this grossly invasive and degrading procedure was just 3. Years. Old.
As others have noted, however, even when the worst kinds of abuses within our legal system are exposed, a substantial section of the population will react not with outrage, but by looking “for even the smallest hook on which to hang an excuse for the cops.” The likely reason this section of the public refuses to be outraged is that they are not the ones likely going to be subjected to the abuse. Yet, when these folks are brought under the thumb, suddenly the reaction becomes remarkably similar to the voices that have been crying foul for years. Which brings me to the case of Michael Flynn.
Much ink has been spilled over this case already, and if you want to get deeper into specifics I suggest looking, here, here, or here. What I want to briefly focus on is the oft repeated, but demonstrably delusional claim that the tactics used by the FBI in investigating Flynn were somehow extraordinary or unusual. Spoiler alert: They weren’t.
As former federal prosecutor Ken White has explained, on multiple occasions in fact, and using substantial amounts of case law to back up his explanation, that when it comes to the tactics used to investigate Flynn “[t]he law is clear: the FBI can find irrefutable evidence of a crime, interview you about it, collect lies that it knows are lies and that do not deter it for a second, and then have you charged with lying under Section 1001.” In other words, the police tactics used against Flynn have been in use for a long time and have been given full blessing by our nation’s highest court. The fact that Flynn’s defenders are only outraged now, and not advocating that the law be changed but that only Flynn be given a pardon, says something. Namely that these Flynn defenders view these gross tactics as perfectly fine when used on others, just not against those who they care about.
I call these tactics gross because, as White points out, they have been used by the government to, “in effect, manufacture crimes.” But again, the difference between me and Flynn’s defenders is my aversion goes beyond the Flynn case. To get a perspective of “normal” police tactics I spoke with a friend of mine from law school who is now a public defender. Among other things, he described to me a case where a client’s 80-year-old grandmother was prosecuted (based on a thin case at best) in order to effectuate his client’s guilty plea. When I asked this friend to compare the treatment Flynn received with what he has seen, his response was that “it is absolutely common for police to lie or set defendants up to get additional charges. It happens all the time. In multiple drug sales cases, often the defendant would be probation available, but by doing multiple buys, they have stronger leverage against the defendant.”
In my opinion, the things a person chooses to be outraged by reflects their priorities. And if you are outraged by the Flynn case but excused, or simply never cared enough to comment about past (often deadly) abuses, the logical inference is that you do not actually care about the abuse within the system or about correcting it. You only care about who the abuse is directed against.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.