Forty Two wrote: ↑Fri Dec 21, 2018 12:32 pm
Brian Peacock wrote: ↑Fri Dec 21, 2018 11:55 am
Forty Two wrote:ALAN DERSHOWITZ: The obvious point here that everyone should understand is that the FBI didn't ask him these questions to learn the truth, because they knew the truth. They weren't trying to obtain more information, they were simply giving him an opportunity to lie.
Now, he could have told the truth, obviously, if he remembered, but the idea is that I don't think in America we want to empower the FBI, grand juries, and prosecutors to impose morality tests, criminal morality tests, on citizens. Give them opportunities to lie, opportunities to tell the truth, test them. And as Judge Sullivan implied and as Judge Ellis said very clearly, the goal here was not to get Flynn, he was just a means to an end. The goal was to get low-hanging fruit, to figure out a way of getting him to lie to the FBI so that they could squeeze him then either to sing or compose.
The obvious target here was Trump, not Flynn, and the question is whether we want to live in a society --and as a civil libertarian I don't-- in which the FBI, grand juries, and prosecutors are empowered to conduct morality tests.
The function of grand juries and FBI agents is to get to the truth, they should never ask anybody a question to which they already know the answer.
https://www.realclearpolitics.com/video ... tests.html
Law is the moral code of a nation. When there exists the possibility that a crime has been committed then a moral assessment is applied against a test in law with the aim of judging innocence or guilt.
In appearing to de-couple possible criminality from morality and moral assessment Mr Dershowitz does the law, the judiciary, and the investigatory role of the FBI a disservice.
Well, the law is not the same as morality, nor is law a moral code. Never has been.
I suggested that The Law (in both concept and practice), being an embodiment of a society's notions of right/wrong, permissible/prohibited action, speech and thought is 'the moral code of a nation' - which is to say that The Law is a codified system of proscriptions and prescriptions upon the human action of all who fall within its jurisdiction. Therefore, when considering what society deems permissible/prohibit3ed in law, morality; moral concepts, moral assessments, and moral judgments, are necessarily invoked. Now support your declaration that this is not the case: that, in effect, The Law (in concept and practice) is not concerned with good or right action etc but is, by contrast, essentially either amoral or immoral.
Forty Two wrote: ↑Fri Dec 21, 2018 12:32 pm
Moreover, the issue Dersh is pointing out is that Flynn hadn't committed a crime until he said he did not have two conversations...
Well, he had already committed the crime of withholding the fact that he was representing a foreign power who's interests he was being paid to promote.
Forty Two wrote: ↑Fri Dec 21, 2018 12:32 pm
... The conversations themselves were not crimes.
Red herring.
Forty Two wrote: ↑Fri Dec 21, 2018 12:32 pm
The liberal position on this for the last 60 years has been that it's not proper for the State to prosecute people for lying about non-crimes.
The conversations may not have been crimes, but lying to his line manager, the FBI, or Congress (and by extension the American people) about them certainly was.
Forty Two wrote: ↑Fri Dec 21, 2018 12:32 pm
Brian Peacock wrote: ↑Fri Dec 21, 2018 11:55 am
I'm sure Mr Dershowitz knows that the role of an independent judiciary is to facilitate the impartial administration of justice, but he seems somewhat keen to imply that American citizens are to be judged by the FBI - cast as a kind of Orwellian thought police - rather than against a legal code within the context a dispassionately administered justice system. This he asserts by fiat.
He is also more than likely aware that an investigator knowing that someone has lied and to substantiating that charge in court are different matters entirely.
No no no, and more no. The investigator did not know Flynn "had lied." Flynn HADN'T lied. What the investigator knew was that Flynn had a conversation with the Russian Ambassador....
... Which he lied about...
... He wasn't trying to get proof of a lie he had committed, he was trying to get Flynn to commit a crime by lying about something the FBI already knew ,which was not a crime.
You're attempting to displace the context here. N.B. My quoted remarks which follow we're abutted directly to those quoted above. Nonetheless...
In saying "No no no" what is it exactly which you wish to counter in the statement that Mr Dershowitz "is more than likely aware that an investigator knowing that someone has lied and substantiating that charge in court are different matters entirely"?
Forty Two wrote: ↑Fri Dec 21, 2018 12:32 pm
Brian Peacock wrote: ↑Fri Dec 21, 2018 11:55 am
Investigators ask question to which they know the answers all the time, and Mr Dershowitz is being somewhat disingenuous when he suggest they should do otherwise. The matter rests not on whether Investigators know the truth before they ask a witness or suspect a question, but on the reply given by the witness or suspect.
Yes! That's the problem. If Flynn had lied about something that was criminal, or part of a criminal prosecution, that would be one thing. There is no underlying crime here. What they wanted was to get Flynn to lie, so they could hold him over a barrel to get him to "sing, or compose" something regarding someone else.
I see: 'they' wanted him to lie so 'they' asked him questions they knew he would lie about? How devlishly sneaky of them. I guess it was pretty immoral of investigators to put him in the position where he was forced to lie about things he wanted to keep secret.
Unfortunately, and as you might guess, I'm not seeing how General Flynn has been poorly or roughly treated here. The obvious corollary to your point is that secretly negotiating with a foreign government and being paid by another to represent their interests, while being in a position to influence the domestic government's policy and/or shape the implementation of policy, and then lying about it, is, well, just fine-and-dandy because ... reasons.
Forty Two wrote: ↑Fri Dec 21, 2018 12:32 pm
Brian Peacock wrote: ↑Fri Dec 21, 2018 11:55 am
Essentially Mr Dershowitz's point resides in subscribing to a view that lying to Investigators is, at the least, morally ambiguous, and at best (or worse, depending on one's perspective) justifiable when they already know the answer to the question - in which they should adopt the "I'll ask you no questions and you'll tell me no lies..." imperative.
The FBI knew the truth. They had recordings of the conversations. Then why did they ask him whether he had those conversations? Obviously, not to learn whether he had them but, rather, to give him the opportunity to lie to federal agents so that they could squeeze him to provide damaging information against President Trump. If you do not believe me, read what Judge T.S. Ellis III, who presided over the Paul Manafort trial, said to the prosecutors: “You do not really care about Mr. Manafort’s bank fraud. What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”
Ellis continued: “This vernacular to ‘sing’ is what prosecutors use. What you have got to be careful of is that they may not only sing, they may compose.” Experienced criminal lawyers have seen this phenomenon at work. Most judges, many of whom were former prosecutors, have also seen it. But few have the courage to expose it publicly as Ellis did. Judge Emmet Sullivan of the District of Columbia Court also has expressed concern regarding federal prosecutorial practices in the investigation.
Defenders of the tactics used by special counsel Robert Mueller argue that his potential witnesses are generally guilty of some crime, such as lying to FBI agents, and that may well be true. But they are targeted not because of what they may have done. They are targeted for what they may know about what the real target may have done. Then they, and their relatives who may also be complicit, are threatened with imprisonment and bankruptcy unless they plead guilty and cooperate with prosecutors.
So the real question, which transcends the Flynn, the Manafort, and even the Trump investigations, is whether these tactics should be deemed acceptable to use in our justice system. Is it the proper role of law enforcement to conduct criminal morality tests to determine whether citizens will tell the truth or lie when given the opportunity to do either by FBI agents? Is it proper to target individuals for such tests for the purpose of pressuring them into becoming witnesses against the real target?
These are important questions for all citizens who care about civil liberties and prosecutorial abuses. They should not be addressed in a partisan manner. Instead, they should be answered by reference to the “shoe on the other foot” test. How would liberal Democrats react if those or similar prosecutorial tactics were being used against a president Hillary Clinton? I know the answer because I have seen how liberal Democrats reacted when President Bill Clinton was being investigated and impeached. The shoe was, indeed, on the other foot. Some of the same liberal Democrats, who today are justifying everything Mueller is doing, expressed outrage when the special prosecutor in the Clinton case employed similar tactics. Nor did all conservative Republicans pass the “shoe on the other foot” test as many applauded these tactics when directed against Democrats.
So back to the question of whether citizens who care about civil liberties should favor the tactics used by the FBI against Flynn. I believe the answer should be no. The function of law enforcement is to uncover past crimes, not to provide citizens the opportunity to commit new crimes by testing their veracity. There may be extraordinary situations, such as prevention of mass casualty terrorism, that justifies the use of highly questionable tactics but, absent such extraordinary circumstances, FBI agents and prosecutors should not deliberately provide citizens the opportunity to commit federal crimes in order to turn them into government witnesses.
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. The FBI should not discourage the suspect from having his lawyer present during the questioning, if a false answer will subject him to criminal liability. Even noble ends do not justify ignoble means, and some of the means used by the special counsel have, indeed, been ignoble.
https://thehill.com/opinion/judiciary/4 ... improperly
Please show how those snippets relate to my quoted remarks above. Anyway...
STOP PRESS!!! Flynn sought to obscure the truth of his activity by making materially false statements, and in so doing he broke the law - to which he pleaded guilty. He wasn't tricked into lying, he chose to lie in response to questions about a number of matters, including his interactions with Russian officials and his paid-for role representing the interests of a foreign power in the US. You assert that undertaking private negotiating with the Russian government or failing to acknowledge he was representing Turkish interests in the US are not crimes and therefore Flynn has been bounced or manipulated into lying about those things in an FBI "sting" or "GOTCHA!!" situation. Now ask yourself who's interests Flynn was representing, was he in a position to influence government policy either in development or practice, and did the things he lied about have a capacity to materially influence the function of government(?) Making private, off-the-books deals with foreign governments, and then seeking to implement those deals as government policy is, surely, less than an ideal way to run an administration? In fact, doesn't it have the potential to represent an abuse of power and/or position - to be something which might very well look like treason to the dispassionate observer?