The First Amendment and The Criminal Justice System

The First Amendment protects each citizen with the Right to Freedom of Speech and Press.
Can this right be jeopardized by a Justice System that operates in a reckless and targeted manner? In the case of General Flynn, the incoming National Security Advisor, he was a man of strong views an the Director of Defense Intelligence, his criticism of the Iran Nuclear Deal, The Fight Against Isis, the power of Al Queda after the death of Osama bin Laden as well as the politicization of the Intelligence establishment earned him strong enemies. President Obama replaced him as was high right as Commander-in-Chief. He subsequently wrote a book on how to defeat Islamic Terrorism and ultimately endorsed Donald Trump and was appointed National Security Advisor for the incoming Administration.
Was Flynn’s First Amendment rights abused by the FBI and the Muller probe. Their goal could be to get him fired, prosecuted or to flip him against what appears their ultimate target Donald Trump. While these goals are often used by prosecutors and the tactics can be hard ball, what makes this case different but not unique in that the FBI and the Prosecutors could use illegal tactics to bankrupt Flynn and persuade him to plead guilty. The plea usually makes it near impossible to appeal the case. In addition, The Government would argue that if there is no trial all Brady Material (exculpatory evidence)would not be required to  the Defense and government malfeasance would not see the light of day! Would this serve as a significant deterrent for one to utilized their First Amendment rights?
The FBI and the Prosecutors engaged in several violations of the law and protocols. Flynn was investigated under the premise of the Logan Act (1799) which makes it illegal for a private citizen to negotiate with a/ foreign government. The law is viewed by most as unconstitutional for its own violation of the First Amendment The law has never been successfully prosecuted in its two hundred year history. In addition, as a member of the National Security team of the incoming Administration it is laughable! Flynn was also unmasked from a conversation he had with The Russian Ambassador and it was leaked to the Washington Post. This action suggested that he was part of the Russian conspiracy making it more difficult to receive a fair trial and thereby encourage him to take a plea!
Flynn was interviewed by two FBI agents without going through the protocols of advising the Attorney General and The White House Council. He was told he did not need an attorney and that he was not a target. His Miranda warnings which should be clear was at best obscured. He was then asked to remember the conversation with the Russian Ambassador without having it read back to him which is the usually FBI practice. The original 302 (FBI summary of the interview) according to FBI Director indicated that while Flynn may have not have been fully accurate, however the agents did not believe he had lied. The 302 was rewritten several months later. Flynn’s legal team was not given the original 302.

In the plea bargain negotiations, he was threatened that he could also be prosecuted for not registering as a Foreign agent for the Government of Turkey This is also rarely prosecuted and is generally settled with a fine. In addition, he was told that his son who worked with his father could also be prosecuted. Flynn ultimately pleaded guilty to one count of lying to the FBI. Charges against his son would be dropped so long as he cooperates with the probe.

All plea bargains involve a form of the prisoner’s dilemma in which the individual weighs the options and costs. If he agrees to one count, he would be sparred future charges and his son would not be charged and he had already spent millions of dollars. A trial would cost even more millions. He could have reasoned that he should cut his losses. In effect take the mini/max solution. He would avoid the worst-case scenario! Once he agreed he would not be able to appeal and all the malfeasance of the Government would never see the light of day! The Government has virtually unlimited resources, can violate many due process procedures and use the moribund Logan Act as a predicate. Without an Appeal, the Government would not be held accountable. The implication is that the threat of bankruptcy is a significant leverage to coerce a defendant to seek a plea bargain. It will also send a message that utilizing your First Amendment rights can be significantly be curtailed. You may think twice before expressing these cherished rights. Flynn made powerful enemies but he also had powerful allies. Many individuals may be in worse shape than Flynn. While the Flynn case is complicated with many motivations on the part of the FBI and the Prosecutors.

The question is: Has the Government’s ability to bankrupt citizens incentivize them to violate due process, extort a plea bargain where appeals are almost impossible. Our liberty appears to be in jeopardy!

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