Of course, even before yesterday’s revelations, it was clear that Jeff Sessions should have no role in determining whether Michael Flynn should be prosecuted for violating 18 U.S.C. § 1001 for falsely telling federal agents that he had not discussed sanctions with a Russian Ambassador Kislyak.
A number of reasons have been given not to prosecute. We are told he took his false statement back. I doubt that defense has been uniformly applied.
We are told that the statement was not material to any criminal act. That the Logan Act has not yet founded a prosecution to my mind is no reason for it to lie fallow. Prosecutorial inaction does not erase a criminal statute from the books.
We are told that he could claim that he did not discuss sanctions just the removal of some Russian officials from the country. I would think a jury could decide whether that twisting of language holds up.
Despite the tenuous character of these claims, there is a very good reason not to prosecute Michael Flynn. It’s called the “exculpatory no” doctrine. Suspects ought to be able to deny guilt in or out of court without being subject to a federal felony. Of course, suspects deny guilt when asked if they committed a crime. Indeed, if suspects are silent, their silence can be used against them in court. If the exculpatory no doctrine did not exist, federal agents could and have manufactured crimes. Indeed, that could have been the case here. When Flynn was interviewed, the federal agents already knew he had talked about sanctions with the Ambassador. Asking the question would have been a way of trapping the suspect into a felony.
To its shame, led by Justice Scalia, the Supreme Court held in Brogan v. United States, that suspects could successfully be prosecuted under § 1001 simply for denying to federal agents that they committed a crime. But Brogan permits the Justice Department to prosecute; it does not require it to do so. Fortunately for General Flynn and for the country, the Justice Department adheres to the exculpatory no doctrine: “It is the Department's policy not to charge a Section 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government. This policy is to be narrowly construed, however; affirmative, discursive and voluntary statements to Federal criminal investigators would not fall within the policy.” See here.
I am no fan of Michael Flynn, but perhaps his behavior will insure that the Trump law and order (except as applied to Trump and his friends) administration will not change the Justice Department’s wise and humane policy.