Greg Stejskal served as an FBI agent for 31 years and retired as resident agent in charge of the Ann Arbor office.
By Greg Stejskal
“Conspiracies hatched in hell can not have angels for witnesses.” – is an adage sometimes used by prosecutors in criminal cases. The point being that in order to prove the existence of a conspiracy, which by design is done in secrecy, it may be necessary to have as witnesses a person or persons who were involved in the conspiracy. (A good Hollywood dramatization of how this works is depicted in Elia Kazan’s film, “On the Waterfront.”)
Coconspirators turned cooperating witnesses are problematic for the prosecutor because the witness by his/her own admission was a participant in a criminal conspiracy. In order to make a strong case, these non-angelic witnesses’ testimony is usually corroborated by other evidence.
Further strengthening their credibility, the testifying conspirator has admitted their involvement in the conspiracy and have often pleaded guilty and been sentenced for the act(s) for which they are testifying.
Using coconspirators as witnesses is a long established and necessary practice in criminal prosecutions. The federal rules of evidence allows for an exception to the hearsay rule: the conspirator can testify as to statements by another conspirator in furtherance of the conspiracy. It is also common practice for the defense to attack the credibility of these witnesses.
What is unusual in my experience is attacking the practice of using a conspirator as a witness as something to be “outlawed” and referring to such witnesses as “flippers.” Such attacks were recently made by the president of the United States.
Flippers are apparently witnesses who have admitted to their participation in a criminal conspiracy, pleaded guilty to their involvement and agreed to truthfully testify under oath about the conspiracy. The president has also characterized some of these witnesses as “rats,” saying they are disloyal and lying to get a more favorable sentence. Thus, sounding more like Johnny Friendly, a mob boss, in “On the Waterfront” than the president.
The president has also seemed to imply that those who don’t flip and remain loyal to him will be rewarded with a presidential pardon – the ultimate “get out of jail free card.” (A pardon presupposes guilt for the act or acts that are being pardoned.) And this is where it gets really bizarre – the president using his pardon power to encourage potential witnesses to not cooperate with the US Department of Justice. That would seem to be a prima facia case of obstruction of justice.
If as the president has repeatedly said, the special counsel probe is a “witch hunt” then the president has nothing to fear from cooperating witnesses who will be under oath and subject to perjury charges should they lie.
It was Abraham Lincoln who said: “I have never met or heard of anyone who could out-smart honesty.”
