Hans von Spakovsky: After Flynn, Congress Must Change Lying to FBI Statute

Former US National Security Advisor General Michael Flynn arrives for his sentencing hearing at US District Court in Washington, DC on December 18, 2018. (Photo by SAUL LOEB / AFP) (Photo credit should read SAUL LOEB/AFP/Getty Images)
SAUL LOEB/AFP/Getty Images

Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative and senior legal fellow of the Meese Center for Legal and Judicial Studies, called for Congress to change the statute criminalizing lying to federal government agents following retired Lt. Gen. Michael Flynn’s guilty plea for making false statements to the FBI. He offered his remarks on Friday’s edition of SiriusXM’s Breitbart News Tonight with host Rebecca Mansour and special guest host Rick Manning.

“Has Bill Barr actually failed in dealing with the basic problems at DOJ?” asked Manning, referring to the FBI’s setup of Flynn on the fourth day of the Trump administration.

Von Spakovsky replied, “I think [there] is a fundamental unfairness with the way the Flynn prosecution has been handled, [and] a lot of that is the fault of James Comey, and, frankly, it’s also a result of what I’ve long considered — and I say this as a former DOJ lawyer — the misuse of a statute under which he’s being prosecuted, and what I mean by that is … we do need a federal statute that says that you can be prosecuted if you lie to federal agents, but that statute should only be used, in my opinion, when the underlying conduct that you’re lying about is illegal conduct.”


“I think it is outrageous for Americans to be prosecuted when the underlying conduct that they’re being interviewed about is perfectly legal, and that’s what happened with Michael Flynn,” added Spakovsky. “If FBI agents show up at my front door and start asking me about something I have done which is perfectly legal, it’s none of their business to be there asking me questions about legal activities, and I shouldn’t be under any obligation to say anything to them or to tell them the truth about a legal obligation, and I think that is a real defect in the statute.”

Von Spakovsky explained, “It is a statute that prosecutors use when they want to get you because they can’t get you for real, and I think that’s what happened here with the Flynn case, and it’s a complete abuse of the system, and, frankly, Congress ought to change the statute so this can’t happen.”

The Department of Justice could also reopen its ostensible investigation of Hillary Clinton’s negligent handling of classified materials during her tenure as secretary of state and initiate a prosecution, added von Spakovsky.

“Let me tell you where Hillary Clinton should have been prosecuted,” von Spakosvky stated. “They should have reopened the investigation that James Comey closed of her mishandling of classified documents because the decision that was made by [James Comey] saying she couldn’t be prosecuted was totally wrong. He either intentionally misstated the law or he’s incompetent because that actually would have been easy to prove against her.”

Von Spakovsky noted, “That statute has been used on numerous prior occasions against government officials who mishandled classified documents in exactly the same way that [Hillary Clinton] did, and the only reason she wasn’t prosecuted is because of who she was, and that’s the case that [the Justice Department] should have reopened, and they ought to be prosecuting her for that.”

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Follow Robert Kraychik on Twitter @rkraychik.


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