More than a year ago, I wrote a series of columns that made the point that former national security adviser Michael Flynn had been set up by the FBI and may have committed no crime. I repeated these arguments in several interviews, and this led the professional Donald Trump bashers, who care more about “getting” the president than protecting civil liberty, to attack me for “inventing” legal principles that assist the White House.
Well it now turns out that I was right all along. Recent revelations in this case prove that the FBI set up Flynn and sprung a perjury trap in order to get him to lie. But if he did lie, some might ask, what is the difference how they got him? A crime is a crime, regardless of what the FBI does to make him commit it, is it not? The answer to this is not necessarily.
Lying to the FBI is not a federal crime unless the lie is actually material to an investigation. Thus, if the FBI is investigating terrorism, and the subject falsely denies an extramarital affair, his lie would not be material. So is a lie material when the FBI already knows the truth because it has it on tape? Is it material if the only reason the FBI asked the question was not to get the subject to provide truthful information but to get him to lie?