This Law is Unjust

The law that the Special Counsel has been using to obtain guilty pleas needs to be changed. It is inhumane in the most literal sense: it is not a law that a human can be expected to obey no matter how hard that human being tries.
He lied when he said his last communication with Rick Gates was in August 2016, according to the government, when in fact in September 2016 'he spoke with both [Manafort deputy Rick] Gates and Person A' about a report and 'surreptitiously recorded the calls.'
Maybe this guy "lied" in the strict sense, intending to deceive the investigation. However, there is no possibility that I could accurately remember whether any conversation I had last fall was in August or September, let alone a conversation from a year before that. I could not expect to tell you accurately whether or not a particular conversation was the last time I had discussed it with the person I was talking to a year or more ago. The law treats any statement that turns out to be inaccurate as if it were a deliberate effort to deceive. But the human mind doesn't work that way. Every time you remember something, your brain alters the memory a bit. It is not a recording device like a video camera or a tape recorder; it is simply not reasonable to expect someone to remember details with perfect accuracy.

This law gives prosecutors incredible power, because simply by compelling testimony they can compel crimes. The only way to avoid being made into a criminal is to refuse to testify. Congress should alter this law at once to include an intent standard, so that the prosecution must prove that the intent of the accused was to deceive. If so, fine, prosecute him. An inhumane law is unjust, however, and unjust laws should be repealed or altered.


E Hines said...

All we know on this is what a British version of The Enquirer has chosen to claim with its paraphrase. Van Der Zwaan, a lawyer, easily could have said "to the best of my recollection and knowledge," a standard caveat, and the paper chose to elide that in its pseudo-reporting while Mueller's gang chose to ignore it in their browbeating.

Or he lied. In any event, he's supposedly going to plead guilty to the charge today.

We just don't know, because we don't have access to the evidence collected. We don't know whether VDZ copped a plea because he knows he's guilty of much worse, or whether he was browbeat into a plea.

In any event, having pled, he should have no credibility in any trial; either he sold, like a Thursday night hooker, his testimony for lighter sentencing, or he was extorted into saying what the prosecutor wants.

Still, you're right in your basic point; it's hard to prove lie vs mistake, and it's (I add) hypocritical, since the cops--here the FBI or a special counsel's investigators--are allowed to lie to their arrestee/interviewee. And my point: testimony from plea deals ought not be usable in court. Such testimony is not even poor evidence the quality of which a jury can evaluate. It is empty words, and so a waste of the court's time and an insult to the intelligence of 12 men and women.

Eric Hines

Assistant Village Idiot said...

@ E Hines. Sold for lighter sentencing. That would depend a lot on practical versus theoretical considerations. Prison is a bad outcome. Impoverishing your family is a bad outcome. Poor criminals being herded through our court system face that all the time. I'm innocent, but if I don't accept this I'm looking at three years hard time. When you look at the recent evidence that the FBI lab has misrepresented its findings so frequently, it's hard to stand on principle.

E Hines said...

FBI lab has misrepresented its findings so frequently

Misrepresented, or incompetently tested and controlled the result parapheralia? Again, all we know is what the mendacious NLMSM has chosen to publish.

Eric Hines

Grim said...

There's an epistemological problem: it's not that we know what they choose to publish, but that we can't be sure we know even that. All that we can really say is that they've raised a question, but what would we trust to give us an answer to that question if not the press? A Congressional investigation? The President? The courts?

Grim said...

Some of this epistemological crisis is enemy action, but most of it we've done to ourselves. There's a reason we can't trust the press, or the courts, or the Congress -- and it's the same reason.

E Hines said...'s not that we know what they choose to publish, we can't be sure we know even that.

Of course. I'm speaking generally and assuming we can know things--else the whole discussion is nonsense.

One source of information that could be trusted--at least to the point of importance that liability is attached--is the sworn-to public record of a trial or a Congressional investigation. There are very few reasons those documents should be sealed, and none at all regarding Congressional records. Those last can be suitably redacted--and the degree of redaction, especially of a public hearing record, would itself be indicative.

We also could trust the NLMSM with a turnover of current pressmen and a better education of journalists in high school and college.

The current crop of pseudo-journalists could gain a measure of credibility if they would a) explain why they've walked away from an earlier journalistic standard of at least two on-the-record sources to corroborate (any number of) anonymous sources, instead of claiming large numbers of anonymous sources as somehow being believable based on the large number of them or because a Holy Journalist says so. Currently, there's no way to evaluate how many of those numerous anonymous sources--if any--in an article actually exist. And b) if they can't get any on-the-record sources, to say why they cannot not. And c) to explain why we should believe their anonymous sources given that--if they exist--they are violating the terms of their employment contracts if not their oaths of office, and so by the very fact they're talking to a pressman, they're demonstrating their fundamental dishonesty.

Eric Hines

E Hines said...

One more thing, regarding the OP: unjust laws should be repealed or altered.

Repealed. The things are too far damaged; start over from scratch, beginning with a demonstration that the subject wants a Government to intervene.

Eric Hines

Christopher B said...

I've heard a suggestion a number of times, possibly from Andrew McCarthy, that a good position would be to have special prosecutors refer any process crimes to regular DOJ attorneys rather than allowing the SP to present them. That would lessen the possibility of scalp hunting and force the SP to document his case better while still providing some teeth to keep suspects from having conveniently faulty memory.

I'm not sure requiring intent would achieve what you want, as it's still a he said/he said scenario (I was mistaken vs he was misleading). Any lie blatant enough to be proven with an intent requirement is likely to result in conviction on the underlying crime which kinda makes it a moot point. It might be more useful to require an underlying crime be presented as well. A similar standard has been suggested for obstruction charges to avoid people being charged with obstruction when no actual crime was committed.

Ymarsakar said...

I was told that the optimum thing one can do when under police and whatever interrogation is to stay silent, say nothing, react to nothing.

Just act like a sack of water or a rock.

The "right to remain silent" was maybe a clue.