The delayed sentencing of former national security advisor Michael Flynn for making a false statement during an FBI interview has focused attention on the circumstances of his interview. In recent days, it has come to light that when the FBI interviewed retired Gen. Flynn in January 2017, the FBI agents did not advise him that it is a federal felony to lie to the FBI, or that he could and should have a lawyer with him during the interview. The FBI agents reported that the omission of warnings was intentional; they did not give Flynn any warnings in order to ensure he was “relaxed” in the interview and to build “rapport” with him.
It has become almost a platitude that it is a “crime to lie to the FBI.” Common sense dictates that it would probably be a good idea to have a lawyer present when being questioned by the FBI. Many commentators (and Special Counsel Robert Mueller’s prosecutors in filings in Flynn’s criminal case) have pointed out – correctly – that the FBI agents were not legally obligated to give Flynn these warnings. However, focusing on that issue has obscured a very real encroachment on Flynn’s constitutional rights by the FBI in the January 2017 interview – his right to remain silent under the Fifth Amendment.
Virtually everyone knows (from watching TV crime shows if nothing else) that “you have a right to remain silent” if questioned by a law enforcement officer while you are in custody. This is part of the famous Miranda warnings. The Supreme Court created the warnings in Miranda to protect average citizens from the intimidating and coercive effect that being held in custody has on people, which often leads them to surrender their right to remain silent.
Few people realize that government employees are also often entitled to similar warnings if they are questioned about their conduct by government officials. These additional protections provided to government employees exist, because to an employee the government is not just “the government;” it’s also their employer. An employer can require employees to answer questions about things that involve the employees’ job – or else punish or fire the employees if they refuse to answer the questions.
For government employees that means that they could be required to answer questions that might incriminate them if they have been involved in misconduct on the job. Thus, government employees could be faced with either incriminating themselves if they answer the questions or losing their job if they assert their Fifth Amendment right to be silent and refuse to answer the questions. The employees are caught between the proverbial “rock and a hard place.”
However, in 1967, the Supreme Court decided in a case called Garrity that forcing government employees into such a Hobson’s choice was inherently coercive. The Court said: “The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.” Such a “choice” made any statement given by the employee unconstitutionally involuntary under the Fifth Amendment. This meant that statements given in this manner could not be used against the employees in criminal prosecutions for the conduct being investigated.
A few years later, another federal appellate court explained how the Garrity rule works in practice and ruled that government employees could not be fired for refusing to answer questions about their conduct – even though they had a duty to answer their employer’s questions – unless they were advised that their answers the question would not be used against them in criminal court. The court ruled in a case called Kalkines that an employee was entitled to be “advised of his options and consequences of his choice.”
In practical effect this means that if the government wants to, or might want to, use the answers of employees in a criminal prosecution, or if the government is not prepared to make a decision about that issue, the employees can assert their right to remain silent and cannot be fired for doing so. If, however, the government advises the employees that their answers will not be used in a criminal prosecution, then the government can compel the employees to answer the questions and punish them if they refuse to answer. Kalkines means that, if the government forgoes the warnings, it must forgo using the employee’s statement in any future criminal prosecution, because the employee has not had the chance to make an informed decision about whether to remain silent.
The FBI’s interview of Flynn in January 2017 flouted the requirements of Garrity and Kalkines. At that time, the FBI had an open “national security” investigation concerning Russia’s efforts to interfere in 2016 election. That investigation included whether members of Trumps’ campaign “colluded” with the Russians. However, Garrity and Kalkines do not distinguish between a “national security” investigation and a “criminal” investigation. They distinguish between an “administrative” investigation and a “criminal” investigation.
A “national security” investigation can result in either administrative sanctions (loss of security clearance or job) or a criminal prosecution against the employee. It is not an exclusively administrative or an exclusively criminal investigation. As both kinds of consequences can be leveled against government employees questioned in national security investigations, Garrity and Kalkines require that the government provide Fifth Amendment warnings to any employee whose own conduct is the subject of the investigation. Kalkines directly addresses the situation where either administrative or criminal cases (or both) may be brought against the employee. It highlights that that is precisely the set of circumstances in which the employee most needs the warnings.
In Flynn’s case, the FBI interview of him in January 2017 concerned his own conduct. He was not interviewed as a mere “witness” in the investigation. This was made clear in the memorandum written by Andrew McCabe, (who was then deputy assistant director of the FBI), which the special counsel prosecutors attached to their Reply Memorandum in Flynn’s case on Dec. 14, 2018.
In McCabe’s memo, he wrote that he told Flynn the reason for the interview was that, “In light of the significant media coverage and public discussion about his recent contacts with Russian representatives … we needed to have two of our agents sit down with the General and hear from him the details of those conversations.” In its Reply Memorandum, the Special Counsel prosecutors stake out the position that Flynn’s interview was conducted as part of the FBI’s “national security” investigation.
As explained, however, the special counsel’s casting of the interview as part of a “national security” investigation does not solve the Fifth Amendment problem. Flynn was entitled to the warnings required by Garrity and Kalkines. He would have been told that he was being questioned as part of an investigation about his conduct and whether he was required to answer the questions as a government employee and what use (administrative or criminal) the government was going to make of his answers. An ordinary government employee would definitely have received those warnings. However, Flynn did not.
Because he provided answers to the FBI agents’ questions without the benefit of the Kalkines warnings, Flynn’s statements could not be used against him in a prosecution for the conduct about which he was questioned (national security issues or potential criminal violations). However, Flynn pleaded guilty instead to making false statements in the interview. So, technically the government did not violate Flynn’s Fifth Amendment right to remain silent, because it is using his statements against him for charges other than the national security or criminal offenses that supposedly were the reason for the interview.
Stepping back a bit to look at the bigger picture, however, the way the FBI handled the Flynn interview deprived him of his Fifth Amendment right to make an informed decision about whether to talk or to remain silent. This behavior violates the spirit and intent of Garrity and Kalkines to protect citizens’ Fifth Amendment rights. Those cases are focused on empowering the citizen-employee, not the government. The point of Garrity and Kalkines is to safeguard the citizens’ ability to decide for themselves whether to assert their right to remain silent in the face of a government investigation; not to enable the government to lull employees into waiving their right to remain silent.
The FBI’s conduct in Flynn’s case is a troubling display of the government using its power against a citizen to achieve the effect that the government desired – General Flynn waived his right to remain silent – in disregard of a citizen’s established constitutional rights. That the FBI did this intentionally is disgraceful. It falls far below the degree of respect for the rule of law and the rights of citizens that the American people should and do expect from the Bureau.
