A brief string on why the 2200 former DOJ idiots should be ashamed of themselves.

To be found guilty of a crime, there must be evidence establishing each element of that crime "beyond a reasonable doubt."

Every crime is defined by several sub-parts called "elements of the offense." In a jury trial, at the end of all the evidence, the Jude "instructs" the jury on the law. One or more of those instructions goes through the "elements" of the crimes charged.

The jury is told that it must find evidence that proves "beyond a reasonable doubt" each individual element. If the evidence is insufficient on even one element, then no crime has been proven and the jury is to return a "not guilty" verdict on that charge.

A typical pattern instruction on a 1001 Count reads as follows (heavily edited):

1st - that defendant knowingly and willfully made a material false statement;

2nd - that defendant made the statement voluntarily and intentionally; and

3rd - that defendant made the statement in responding to questions from a federal law enforcement agent.

A false statement is made “knowingly and willfully” if the defendant knew that it was false or
demonstrated a reckless disregard for the truth

A statement is “material” if it has a natural tendency to influence or to be capable of influencing
the decision of the decisionmaker to which it was addressed, regardless of whether the agency
actually relied upon it.

A statement is “false” if it was untrue when made

So a statement must be "material" for it to fall within 1001. If there is no evidence that the statement was "material", then there would be a failure of proof and the defendant MUST be acquitted.

What DOJ has said in its filing is that because the FBI did not have an active and legitimate inquiry of Gen. Flynn underway on the date of his interview, his answers were not "Material" to a matter pending. The lack of a legitimate inquiry is a "Failure of Proof".

The fact that there was no legitimate and and active inquiry means the government could NEVER had proven "materiality" as a legal matter. There were not witnesses it could call, and there were not documents it could offer that could create an inquiry where none existed.

Yet my fellow "former DOJ Officials" demand that a guilty plea be allowed to stand under circumstances where the facts show no crime took place. EVEN IF HE DID LIE to the agents, the circumstances were such that it was not a crime.

As I've said here many many times, not every lie to the FBI is a crime. If that was the case, there would be no "materiality" requirement.