The greatest defense for Gen. Michael Flynn has come from liberal Supreme Court Justice Ruth Bader Ginsburg.
It stems back to the conviction of Martha Stewart who had similar charges, The New York Sun reported in 2004.
“The counts that really got our attention in the Stewart indictment are numbers three and four, in which Ms. Stewart is charged with violating Title 18 of the United States Code, Section 1001. That is the federal law that provides for a fine or up to five years in prison for anyone who “knowingly and willfully” makes any materially false statement or representation “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”
The law has been on the books since 1863, but it was amended and expanded by Congress in 1934 as the New Deal required more federal disclosures. Today, Section 1001 is well known as dangerous territory by legal experts on all sides of the American political spectrum, and it may well be worth a skeptical re-examination by Congress.
“Even in our age of ever expanding federal power, the reach of this statute and the discretion it lodges in prosecutors is awesome,” wrote a veteran federal prosecutor, Solomon Wisenberg, in an article about the law. Mr. Wisenberg, a conservative who served as deputy independent counsel in the Whitewater case and who is now in private practice in Washington, wrote, “The vast majority of federal agents and attorneys are honorable people who would not intentionally abuse this statute.…But the potential for abuse of this statute is great, even for normally honest people.”
His qualms were shared by a liberal Supreme Court justice, Ruth Bader Ginsburg, who, in a concurring opinion in the 1996 Supreme Court case Brogan v. United States, warned of “the sweeping generality” of Section 1001’s language.
The Future of Capitalism pointed out the reasoning.
That New York Sun editorial said:
a liberal Supreme Court justice, Ruth Bader Ginsburg… in a concurring opinion in the 1996 Supreme Court case Brogan v. United States, warned of “the sweeping generality” of Section 1001’s language.
Justice Ginsburg wrote: “The prospect remains that an overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.”…
Justice Ginsburg wrote, “the Department of Justice has long noted its reluctance to approve §1001 indictments for simple false denials made to investigators.”
Ginsburg warned that the law’s “encompassing formulation arms Government agents with authority not simply to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government officer could prompt.”
Brogan was about whether the statute clashed with the Fifth Amendment constitutional right to avoid self-incrimination, a right that goes all the way back to Maimonides.
To my mind a better outcome than judges striking down the law would be for Congress to repeal it, perhaps at the urging of President Trump, who has repeatedly and publicly warned against what he calls a “perjury trap.” Similar to the situation with campaign finance law, a silver lining of the Trump-Mueller-Flynn-Cohen legal morass could be if it spurs the president and Congress to make changes to the laws that are being used to target them. Admittedly, it’s a long shot. But it might be the best possible outcome. Maybe Justice Ginsburg could come testify before the Senate and House judiciary committees on the point. In the interview embedded below, she says that Congress is one potential intended audience of the dissents that she sometimes reads excerpts of from the bench.