“Queen for a Day”

There’s quite a lot of understandable buzz out there about the fact that the former National Security Advisor, the short-lived Michael Flynn, has asked for immunity in exchange for agreeing to testify before a Senate committee investigating the Russia mess. See http://bit.ly/2nTEyjL (“Flynn Offers to Cooperate”).

While this is the stuff that white collar lawyers do all day, it’s pretty darned opaque to the the rest of the world.  What exactly does it mean to ask for immunity in exchange for cooperation?

Let me offer the following as a guide:

1. The U.S. Constitution makes it illegal for the government to try to elicit confessions from a target of an investigation.  The Fifth Amendment provides in part that no person “shall be compelled in any criminal case to be a witness against himself.”   Thus, a witness can “take the 5th” and say no thanks when some government investigator comes with a subpoena.  Taking the 5th comes with a price, though.  Most people, including investigators, believe that you’ve got something to hide if you “Take Five.”  They make note of it and file that away in their mental storage cabinet.
2. The United States is one of the few countries in the world with such a rule, and it is one of the most cherished principles in our founding document.  In most other countries of the world, people can be forced to testify about the matter under investigation, and the prosecution can use that testimony against the person.  (Want to know why the Guantanamo prison camp was set up outside of U.S. borders?  One reason was so that forced confessions could be used against the prisoners without running afoul of the Fifth Amendment.  Dick Cheney was not kidding when he talked about taking us to the dark side.)
3. The rule against compelled self-incrimination doesn’t stop the prosecution from talking to the witness, however; it simply stops the prosecution from using the interview as evidence in a case against that witness.   So how do they get the witness to talk after he says no thanks?
4. This is where the immunity comes in.  Suppose the prosecution is really most interested in the witness’ boss, and the witness knows a lot about what the boss has done.  In fact, the witness was a co-conspirator with the boss in something illegal.  In this situation, the prosecutor or investigator might promise “use immunity”, i.e., an agreement that he/she will no use the interview against the witness, in an effort to elicit damaging testimony against the boss.  The “use immunity” effectively serves as a work-around of the 5th Amendment, but one that comes with a cost to the prosecution.  If the prosecutor grants immunity too liberally or too early, he/she may have given up too much.
5. How does the prosecutor know whether to offer immunity in exchange for truthful testimony?  Suppose, for example, that the witness gets immunity and then turns out to be someone who can’t remember a thing, or shades his testimony to help the boss avoid prosecution?  If the only case that could have been made was against the witness himself, as it turns out, then the immunity granted was a big, complicating waste.
6. The immunity granted may also have also made it virtually impossible to prosecute the witness, because the witness will later claim that even though you didn’t use the actual statements against him, those statements “tainted” the investigation by virtue of the fact that the prosecution made “derivative use” of what it learned in the interview.  This is why Oliver North’s conviction was overturned and his case ultimately dropped, a precedent that the Senate is no doubt more sensitive to this time around than they were when they offered North immunity to testify over the Department of Justice’s objections.
7. To prevent “buying a pig in a poke,” the investigators or prosecutors give the witness and/or his lawyer a “Queen for a Day” letter, which essentially says that we’ll let you come in and talk to us, for this one meeting only, with the assurance that we won’t use the statements against you.  In this way, the government can evaluate whether or not the potential testimony is helpful to them or not, say in a case against the boss for example.  If it’s not good enough, then they say never mind and don’t offer the use immunity for the actual court proceedings.  (In the macho world of law enforcement, it is no accident that the letter is not called “King for a Day.”   We’ll hear you out — but only if you put on a dress in front of us.)

In other words, this is the start of a complicated dance between two parties, one of whom wants to know what this guy has to say, and the other of whom wants to know if he can get a better outcome for himself by trading in on his information.

The dance is further complicated by the fact that both branches of Congress have subpoena power and can call witnesses to testify before them at the very same time that criminal investigators at the Department of Justice are conducting their own investigation.  It would be naive to think that all this can happen without messiness.

That’s what Flynn is taking advantage of.  He’s essentially saying “Hey, I’ve got something good you might want to hear, but you’ve got to sprinkle holy water on me first.  Bathe me in the waters of the 5th Amendment and I’ll sing a song.”

It worked for Ollie North.

The Senate is right to move slowly on this.  Flynn is a big fish, just like North was.  No doubt the F.B.I. and the Department of Justice are already thinking seriously about what laws he may have violated by contacting the Russian government during the campaign and during the transition.  They don’t want to see their investigation messed up by a Congressional hearing with all its partisan theatrics, non-lawyerly questions, and offers of immunity.    Some argue that the Senate should offer the immunity because we as a nation need answers right now.  See http://nyti.ms/2okT5Gn (“Trump is Right:  Give Flynn Immunity.”)  But this is a trap for the unwary.

Once — and only once — investigators know enough to be clear what laws Flynn may have violated, then they can test his offer to cooperate — from a position of strength.  Come on in and be Queen for a Day, Mr. Flynn, and we’ll see what you have to say and see whether it furthers our investigation.  Translation:  if you have something good on the boss, then we’ll talk.

If they have a solid case against Flynn and signal an intention to prosecute him, this decreases the likelihood that he will dodge and weave as Oliver North did.  If they have a solid case against him, only testimony that sinks his boss should be worth the price of immunity.

(The author was an Assistant United States Attorney from 1989 to 1997.)

The Importance of Whistleblowers

The article below was first published on February 13, 2017 on our work blog at The Whilstleblower Law Collaborative, under the title “Now Is The Time For Heroes.”  (http://thomasdurrell.com/now-is-a-time-for-heroes/)  It was written as a reminder of the critical role to be played at this time in particular by whistleblowers inside government.  With one party in charge of the Executive Branch, both houses of Congress, thirty-two state legislatures, and the Supreme Court (assuming Gorsuch confirmation), government accountability is in short supply.  With a Chief Executive willing to observe the norms of government, this would be less of a risk.  With a Chief Executive willing to “destroy the administrative state,” however, the risks are real.  This column was written both as guidance for whistleblowers, as well as encouragement to keep standing up for what’s right, despite the pressure.  

Remember “Deep Throat”  in the Watergate  story?  One man in government kept the Nixon crimes in the Washington Post by talking to Woodward and Bernstein, when most other national papers had dropped the story.  One man.  His identity was the best kept secret in Washington for decades.  He turned out to be the No. 2 guy at the FBI.   Mark Felt was his name.  See http://www.vanityfair.com/news/politics/2005/07/deepthroat200507  

Mark Felt, 1913-2008.  FBI Deputy Director

So you never know who it might be to step up to save our country when it’s needed.  

“We make our living representing whistleblowers.  It’s fascinating work, and not many days go by that we aren’t inspired by the courage of our clients to speak the truth when it would be easier not to, and the determination to stand up for something and to see it through.

We represent mostly whistleblowers under the False Claims Act or the relatively new SEC or IRS Whistleblower Programs.  They are usually insiders at private companies that cheat under government programs and contracts.

But there’s another universe of whistleblowers that we want to talk about — the government whistleblower.  The federal employee who is aware of something terribly wrong going on at his/her place of work and feels compelled to speak out.  What rights and protections do these people have?   While they may not be entitled to a “relator’s share,” in most situations, they do have legal protections, most notably under the Whistleblower Protection Enhancement Act (“WPEA”) of 2012.

The issue is a timely one, as the chaotic first weeks of the Trump Administration have seen an unprecedented disruption to the normal functioning of the government.  Just look back to the sudden rollout of the immigration order (now stopped by the courts) and think of the airport scenes, the confusion, the changing interpretations from the White House, and so on.  It is indeed a very new day.

In this intimidating environment, we know that many federal employees are wondering what to do when they are forbidden from communicating with the public or given an order from a superior that is, in their view, illegal. We hope this article will help.

Silence is not the only option.  Look at what’s happened already:

• In the National Park Service, alt government accounts have popped-up to oppose the President’s gag orders relating to climate-change and science, or to correct the President’s misinformation about the crowd size at his inauguration.
• Federal employees at several other agencies, including the embattled E.P.A., began posting similar alt government  sites on social media as a result of the President ordering the official agency sites down.
• Over 1000 State department officials signed a “letter of dissent” cable opposing the Executive Order barring immigration from seven predominantly Muslim countries.
• HHS employees rose up in protest and forced the White House to temporarily withdraw its order that the agency cease advertising the deadline to enrolle in Affordable Care Act.
• And most notably, Acting Attorney General Sally Yates notified all Department of Justice employees that as long as she was in charge of the department, it would not defend the President’s travel ban in court.

Sally Yates, as she surely expected, was fired immediately.  But the her actions had a powerful impact, reminiscent of the principled stand taken by Archibald Cox and Eliot Richardson during the Watergate crisis.

As these examples make clear, federal whistleblowers — at all levels — can have a real impact in fighting executive overreach. With one party in control of both the executive and legislative branches and an executive acting forcefully and bluntly, the need for government whistleblowers is real.

Blowing the whistle on wrongdoing in government is both part of our national history, and specifically protected under federal law.

I.  The History.  We have always relied on courageous government employees to come forward and expose wrongdoing by our government.  The Continental Congress enacted America’s earliest whistleblower law in 1787, declaring it “the duty of all persons in the service of the United States” to provide information of any “misconduct, committed by any persons in the service of these states, which may come to their knowledge.”   The law was prompted by an incident in which sailors and marines serving on board the warship Warren had secretly informed the Continental Congress of wrongdoing – including torturing prisoners of war – by Commander-in-Chief of the Continental Navy, Commodore Hopkins.  Hopkins eventually sued two of the whistleblowers, lieutenant Marven and midshipmen Shaw.  The Continental Congress, recognizing the importance of their actions and our young nation’s duty to protect whistleblowers, provided funds to successfully defend the suit.

In 1863, President Lincoln urged the passage of and signed the False Claims Act, incentivizing whistleblowers to come forward in response to rampant defense contractor profiteering during the Civil War.  In 1986, the statute was amended in substantial ways and has given rise to a bar of lawyers (of which we are proudly members) that has, with the aid of our whistleblower clients, returned tens of billions of dollars to the federal treasury.

The 1863 False Claims Act is sometimes called “The Lincoln Law.”

In recent years, laws have been passed making it illegal for the federal government to try to silence employees who are speaking out about wrong-doing.  These laws will be getting a workout, we predict, in the years of the Trump Presidency.

II.  Current Protections.  Here are some resources for government whistleblowers, under current law.

Most government employees are protected from retaliation for disclosing violations of laws, mismanagement, waste, abuse or danger to health and safety. Employees are also protected against censorship of scientific research and analysis. Even inaccurate disclosures, if made in good faith, are protected.  See the following link for a list of the kinds of employment actions that are prohibited by the Office of Special Counsel – an independent government agency that that looks out for federal whistleblowers.  Examples include coerced political activity, nepotism, inappropriate recommendations, abuse of authority, and whistleblower retaliation.  The OSC also advises agencies on compliance with whistleblower protections, like the anti-gag rule.  See here and here.

Employees who believe they have been retaliated against can file a grievance with their union, or a complaint with the Office of Special Counsel, or an appeal with the Merit Systems Protection Board.  Remedies include reinstatement, back pay, and attorneys’ fees.  No, you won’t be made rich as a federal employee whistleblower, but you do enjoy substantial legal protections, and vindication can sometimes be its own reward.

In short, “Federal Employees have the right to make disclosures of wrongdoing” and cannot be punished for doing so.  The WPEA passed both houses of Congress unanimously in 2012, and makes it clear that speaking up is legally protected activity.

We never say “never” to clients or prospective clients, but it would be very difficult for the President to abolish this law or this agency.  He might try to  staff it with do-nothing types to weaken it, but it seems highly unlikely that the OCS or the laws it enforces won’t still be on the books for the duration of his Presidency.

No, this is not a normal time.  It is a time of risk.  There are some things a President can do, and some that he/she cannot do.  It is a time for heroes to stand up when the circumstances compel it.

And there is precedent:  Shaw, Marven, Ellsburg, Yates.  The risks are as real as they always have been, and greater than any time since the 1970’s.  The law provides protection, and lawyers of conscience both inside and outside the government are available to help.”

Daniel Ellsberg in the Nixon era.

Some “Untruths” Matter More Than Others

It seems like a good time to make some distinctions between types of untruths — the garden variety and the really serious — which are often lumped together under the catch-all term “lies.”  In these divisive times, the verb “to lie” has become so over-used as to almost lose its meaning.  See for example Al Franken’s humorous but substantive book Lies and the Lying Liars Who Tell Them.

So maybe I can add some input:  not all untruths are created equal.

Some general principles can help us distinguish which untruths really matter.  Some are just mistakes.  Some are exaggerations or reflections of wishful thinking.  Some are intended to deceive for a particular purpose.  It’s this last group that deserves the label “lie.”

Attorney General Sessions finds himself in hot water in his very first few weeks on the job.  How do we assess his denials to Congress, under oath, that he had not met with representatives of the Russian government during the presidential campaign when in fact he had two meetings, even with staff present?

How, for that matter, do we sort out the dozens of false statements the President makes every month, including this morning’s bizarre accusation that President Obama ordered his Trump Tower phones tapped?  (Even in the unlikely event this claim is true, it could have only have happened through law enforcement and a court order, not via the White House, a detail lost on its current occupant.)  With so many untruths abounding, how do we assess them, without becoming anesthetized by the sheer volume?  How do we make sense of this new world in which lack of accuracy, whether intended or not, seems everywhere?  A world in which false accusations go viral instantly?

Most of us were taught as kids “you should never lie,” and that lying to other people is per se wrong.  George Washington couldn’t bring himself to lie, so the legend goes, and so confessed to cutting down the cherry tree, etc.

Life in the real world is more complicated.  We now know from excellent studies on the topic that in varying degrees, people “lie” all the time, that is, they are less than truthful. (For an excellent discussion of this phenomenon, listen to the TED talks given by Jeff Hancock, Pamela Meyer, and Dan Ariely.)  (http://bit.ly/2mpJpJ3)  See also Why We Believe Obvious Untruths, by Philip Fernbach and Steven Sloman, http://nyti.ms/2mP26DE.

Many of these untruths are small and insignificant, and sometimes they are even socially appropriate (“you look great”) or even principled (“no I am not hiding Jews in my attic”).  An article that long ago opened my eyes to these kinds of nuances was “The Insufficiency of Honesty” by Stephen Carter, which appeared in The Atlantic Monthly in February 1996 . Honesty without integrity is not enough.  There are times when being truthful can be hurtful, put people at risk, and be totally lacking in integrity (telling your wife on her deathbed that you’ve never loved her and have been having an affair for the last decade).  Similarly, acting with integrity can sometimes call upon people to shade the truth (as in the Jews in the attic example).

The point is we have to examine why people are being less than truthful.  Context matters, it turns out; it matters a lot.

For the most part, people have good B.S. detectors.  So much of communication is non-verbal, and we often know at a sub-conscious level when we’re being snowed or lied to.  Many voters who supported Trump are not bothered by his untruths because they are not taking him literally.  They understand his language to be that of a salesman, and they follow the emotion and general direction of what he is saying, more than the actual words.  But this is tricky ground.   In reassuring oneself that the President’s propensity to speak falsely is mostly harmless, we risk missing the serious times when he may be intending to deceive.

In everyday life, people exaggerate and embellish all the time, and they do so for many, often benign, reasons.  We recognize, however, when an untruth is told with a specific intent to deceive someone, that untruth should rightly be called a lie.  We feel rightly betrayed when someone sells us something and falsely represents the item’s quality or status.  It’s the intent behind the statement that makes all the difference, and the context.

Problems arise with our tendency towards linguistic laziness.  By labeling all untruths “lies,” we elevate some unimportant stuff to a level of gravity it doesn’t deserve, and we lessen the impact of the word for situations where an untruth is really serious.

In the law, these same distinctions exist.  There are many laws which prohibit making false statements in specified circumstances like sworn testimony or in an interview with a law enforcement agent.

For a false statement to be actionable under the law, however, the statement must be “material” to something important.  Lying to an FBI agent about your birth date may or may not be material, depending on the nature of the matter being investigated.  Lying about whether you met with the Russian ambassador may or may not be material, depending on how important the question is in the current context.

When Bill Clinton wagged his finger at the camera and told the American public “I did not have sexual relations with that woman,” he was clearly lying in the normal sense of the word — he was intending to deceive the American public about what had happened.

“… with that woman …”

The investigators and prosecutors who were seeking Clinton’s scalp could not use that statement in court, however, because it was not under oath and not a crime.  It was as un-actionable as 45’s denials of mischief in a Moscow hotel room.  So they set up a bizarre perjury trap to get him to make the denial under oath.  Clinton, with his lawyers apparently sleeping on the job, fell for the bait and lied under oath.  You know the rest of the story.

Predictably, the impeachment mania failed quickly.  Why?  Because not all lies are as “material” enough to warrant impeachment.  Censure was surely appropriate, but impeachment was a waste of time because there was never going to be a super-majority of Senators voting for the proposition that lying about one’s sex life, even under oath, is a threat to the Republic.  (No doubt many of the Senators voting were quietly thankful they had never been required to answer similar questions under oath.)  This was simply not at the level, not even close, to Andrew Johnson’s refusal to execute Congress’ post-war laws or Richard Nixon’s provable crimes that directly impacted the functioning of government.

Nixon under seige.  For an  excellent discussion of the striking parallels between Nixon and Trump, listen to the New Yorker podcast interview of John Dean, who served as White House Counsel under Nixon.

By elevating a stupid lie to an impeachable offense, Congress cheapened the standard and helped fuel the linguistic laziness that permeates our social media culture.  Many Presidents have stretched the truth beyond normal limits, but we understand that not all such statements warrant removal from office.

To those who think the Clinton acquittal was the wrong result, our hypocrisy meters are ready for you, now that folks from the other party are being caught with their figurative pants down.

Which brings us to Sessions and 45.  The President has achieved a level of mendacity and/or untruthiness (to borrow the Stephen Colbert phrase) that is unprecedented in the history of the country.  We simply have never had a chief executive who so regularly abuses the truth.  Many of his statements are in the B.S./puffery category, but many are more serious, like when he calls real news fake, and puts out “alternative facts” as reality.

On Tweet

Unfortunately, our task going forward will be not merely to point out when he speaks untruths, but to examine why he might be deceiving the public.  Is it to distract us from other bad news?  Is it to intimidate the press into not looking into matters?  Is it to pressure Congress to not conduct investigations?  This is the hard work to which he has put us.  We fail at this task at our peril.

Attorney General Sessions should expect a bumpy ride.  We know already he was “factually inaccurate” when he testified under oath he had not met with anyone from the Russian government.  Could he have been mistaken and forgot?  No.  Surely he knew this question was coming, given the steady stream of headlines questions from Senators to all Cabinet nominees.

Finger pointing seems to be an important body language clue.

Was it material?  You bet.  The Russian government attacked our country by deliberately de-stabilizing our national election, attempting to tip the scales against the candidate it disfavored and undermine public confidence in U.S. elections generally.  During that same time, many Trump campaign officials and other Trump supporters were in active conversations with the Russian government and its operatives.  It is a matter of grave national interest to know what, if anything, was going on between these two entities.  Are we to believe that these two fact patterns are unrelated?  We cannot leave these questions unanswered — PERIOD.

In this context, lying about contacts with the Russian government, under oath, when you know the matter is of serious national security interest is not only serious; it is an indictable offense.  See, e.g., the case of Richard Kleindeinst, who was removed as Attorney General and later pled guilty to a criminal offense for similar false statements during his confirmation hearing in 1972.  George W. Bush’ chief ethics lawyer cites this example in his persuasive article on why Sessions must resign.  http://nyti.ms/2mjqD6p

If you thought Clinton should have been convicted of impeachment counts for having lied under oath about his sex life, you cannot in good faith advocate for Jeffrey Sessions remaining in the highest law enforcement post in the country.  He lied, intentionally, about the most important national security issue facing the United States at the present time.

Some untruths matter more than others.  Some are just plain lies.

(The author was an Assistant United States Attorney from 1989 to 1997.)