In prosecuting Lt. Gen. Michael Flynn, Obama administration holdovers used the appointment of a special counsel to weaponize the legal system. After finding no evidence of collusion between Trump and Russia to influence the 2016 election, Robert Mueller’s team had to justify continuing their investigation by going after Flynn for a crime even James Comey’s FBI didn’t believe he committed.
1. Unmasking and Leaking
The decision to prosecute Flynn was not the first nor the last affront to due process or the rule of law Flynn suffered at the hands of the Obama administration. Recently released documents from Acting Director of National Intelligence Richard Grenell reveal there were 49 requests to unmask Flynn’s name in just two months, meaning attempts to reveal his identity in intercepted communications, particularly those between Flynn and Russian Ambassador Sergey Kislyak.
These requests came from officials such as Joe Biden, Obama’s chief of staff Denis McDonough, CIA Director John Brennan, FBI Director James Comey, Director of National Intelligence James Clapper, and UN Ambassador Samantha Power. Power alone submitted 300 requests to unmask American citizens in less than a year. These new facts vindicate the claims of Rep. Devin Nunes, R-Calif., from three years ago that there was wide-scale unmasking of Trump officials by the Obama administration.
Almost every report from mainstream media sources states that unmasking is commonplace. “Nothing to see here,” they say. Yet looking at unmasking from a constitutional perspective paints a different picture.
It is illegal to spy on an American citizen without a warrant. To do so is a breach of that citizen’s right to due process and of protections against undue search and seizure. So when an American citizen’s phone conversation with a foreign national is inadvertently recorded, the law dictates the American’s name be masked. While unmasking is at times necessary, it should be done with the utmost of caution.
Flynn’s constitutional rights were obviously not considered in the Obama administration’s frenzied search for a crime. The Obama administration was intent that Flynn not be Trump’s national security adviser. They advised the Trump transition team not to hire Flynn, but were ignored.
The fact that the Obama administration targeted Flynn isn’t just a crime against him, but a crime against our constitutional system. The Obama administration had no right to try to handicap Trump’s foreign policy or to ensure that a corrupt investigation into a presidential candidate continue as a clandestine investigation into a sitting president.
To make matters worse, not only was Flynn’s name unmasked, but the contents of his call with Kislyak were leaked to the press. While unmasking isn’t a crime, leaking certainly is, and can carry a sentence of up to 10 years in federal prison. Leaks were commonly used as a political weapon during the early days of the Trump administration. Three leaks were made to the Washington Post from this call alone. To date, no one has answered for these crimes.
2. The Sham Crossfire Razor Investigation
The FBI’s reasons for opening a sub-investigation into Flynn called Crossfire Razor are ridiculous. The first reason given was Flynn’s service as a foreign policy adviser to the Trump campaign.
The campaign was already being investigated in the umbrella case known as Crossfire Hurricane. This investigation was predicated on an uncorroborated dossier paid for by the Democratic National Committee and the Hillary Clinton campaign. In Comey’s FBI, any type of association with Trump was reason enough to release the full force of the bureau’s investigative powers — just ask Carter Page and George Papadopoulos.
Another reason Flynn was targeted was because of a trip he took to Russia in 2015. After the trip, stories came out about Flynn’s meeting with various Russian state actors as well as an alleged affair with Svetlana Lokhova, a supposed Russian spy.
Just a few problems with this story: Lokhova is not a Russian spy, and she has sued the Wall Street Journal for publishing this claim, not the likely move of an actual spy. She and Flynn also both deny having an affair and assert they only met once at a Cambridge dinner. Further, newly released documents confirm that Stefan Halper was the FBI’s confidential human source that peddled this false information, the same Stefan Halper who spied on Papadopoulos, Page, and Sam Clovis.
Additionally, Flynn very well may have met Russian state actors, as it was his job. What most accounts leave out is that after his trip, he gave a full report to the Defense Intelligence Agency and had cleared the trip with the Pentagon.
One reason using the 2015 Russia trip to investigate Flynn is ridiculous is that in April 2016, the Obama administration had renewed Flynn’s top secret/sensitive compartmented information clearance, meaning he passed extensive background checks and a polygraph test. One of the newly released documents is a case-closed memo, written Jan. 4. An FBI agent wrote that they found “no derogatory” evidence that Flynn committed a crime or posed a national security threat. However, agent Peter Strzok rescinded the memo, saying the seventh floor (FBI leadership) was now involved.
3. The FBI Interview
Flynn was further victimized when the FBI ambushed him. In an unprecedented and underhanded move, Comey sent two FBI agents to the White House to interview Flynn about his phone call with Kislyak. In so doing, Comey bypassed the normal procedure of going through the Department of Justice and the White House Counsel’s office.
Not only did Comey not go through the DOJ, he defied the wishes of Sally Yates, a former deputy attorney general. She and others had expressed concerns about interviewing Flynn without proper procedures. She was ignored. As Comey now infamously said in a televised interview with MSNBC’s Nicolle Wallace: “I sent them. Something I would not have ordinarily done with a more organized administration.”
Newly released documents reveal some of the behind-the-scenes conversations taking place among FBI agents about the interview, including discussions about its purpose. Was it to find out the truth, or get Flynn to lie so he would be fired or prosecuted?
Also discussed was how to trick Flynn into not realizing he was at an official FBI interview, how to get around the legal requirement to inform Flynn that lying to the FBI was a crime, and how to get him not to bring a lawyer. To schedule the meeting, then-Deputy FBI Director Andrew McCabe called Flynn and asked whether some FBI agents could meet with him, telling Flynn “it was no big deal” and it would be easier if he could just meet with the agents alone.
Normal interview procedures were not followed. Flynn wasn’t shown a transcript of his call and instead was asked to recall from memory a conversation he had weeks prior.
Flynn didn’t deny talking about sanctions. He said he didn’t know and that it was possible he and Kislyak had talked about sanctions, although he didn’t think so. Flynn would have been stupid to lie, as he admitted to McCabe in the phone call that set up the interview that he was sure the FBI had a recording of the call. “You listen to everything they say,” Flynn told McCabe.
In their motion to dismiss, the DOJ has decided that even if Flynn did lie, since there was no legitimate investigation going on, it was not material to the case and was therefore not a violation of law.
There are, however, major doubts that he lied in the first place. Strzok and Joe Pientka, the two agents who interviewed Flynn, left the meeting believing that though he hadn’t gotten the particulars of his call correct, he displayed no behavior that indicated he was lying. Pientka had even attended a briefing with Flynn prior to the interview to get an understanding of his baseline demeanor to compare with the interview to follow.
According to Yates, the FBI wasn’t even sure what kind of investigation they were operating. They seemed to morph between describing it as a counterintelligence investigation and a criminal investigation. In the end, it wasn’t an investigation at all, but a setup, a perjury trap.
A perjury trap occurs when the facts are known to the prosecutors or investigators and the only purpose of the interview is to catch the subject in a false statement. Then-Assistant Director of Counterintelligence Bill Priestap wrote in a note that he was afraid the FBI was “playing games” with the interview to get Flynn to lie so they could either prosecute him or get him fired.
He conveyed his concerns to McCabe and Comey, but was ignored. A handwritten note by Priestap reads, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
4. Misuse of the Logan Act
The Logan Act was used as the pretense for the FBI’s interview of Flynn as well as for Yates’ campaign to get Flynn fired. As Mark Hemingway quips, the fact that the Logan Act is still on the books is an “accident of history.”
The law is considered by almost all legal experts to be unconstitutional. Passed in 1799, it has been used to prosecute only two cases, neither successfully, and last in 1852. The law makes it illegal for a private citizen to speak with a foreign government about policy in a way that contradicts the current administration’s policy.
Applying this law to Flynn’s phone call with Kislyak is problematic for several reasons. First, this antiquated law is an obvious infringement on the First Amendment right to free speech. The only reason the law hasn’t been struck down is because it hasn’t been prosecuted since the creation of the DOJ.
Second, the Logan Act is violated all the time and often far more publicly than Flynn’s phone call. Dennis Rodman and John Kerry are just a couple of the famous perpetrators, yet there has never been talk of prosecuting them.
In reality, the Logan Act was a mere pretense. Obama, the FBI, and the DOJ all knew it wasn’t going to be used to prosecute Flynn. They simply used the Logan Act as a tool to get Flynn fired. McCabe testified that he was told a prosecution under the Logan Act was a long shot. In a DOJ memo, Mary McCord, assistant attorney general at the time, said a Logan Act prosecution seemed like a stretch.
5. Flynn’s Prosecution and Guilty Plea
Flynn was charged with violating 18 U.S.C. § 1001, which makes it a federal crime to “knowingly and willfully” make a false statement of “a material fact” to a federal official.
More evidence has come out to indicate that Flynn’s plea was coerced. It turns out the prosecution threatened to prosecute Flynn’s son for Foreign Agents Registration Act violations unless Flynn senior pleaded guilty. Even worse, the prosecution sought to keep this deal off the books so they would not have to reveal it when using Flynn to testify against his business partner. This is a violation of Giglio disclosures and demonstrates the prosecution’s disregard for the rule of law.
Further, the prosecution withheld exculpatory evidence from Flynn’s defense team. They withheld the emails, texts, and handwritten notes of FBI agents that demonstrated Flynn was being set up and that there was no underlying investigation. They also withheld texts between Strzok and FBI lawyer Lisa Page that prove they significantly edited the original 302 document.
Both Nunes and Sen. Chuck Grassley, R-Iowa, requested materials on Flynn’s case and other related matters more than two years ago, but were told such records did not exist.
6. Judge Sullivan Taking the Law into His Own Hands
In an unprecedented move, Judge Emmet Sullivan has put the motion to dismiss charges against Flynn on hold. He will allow friends of the court to argue against the dismissal.
Sullivan’s moves act against two controlling precedents, according to Mark Chenoweth, executive director of the New Civil Liberties Alliance. Just one week ago, Justice Ruth Bader Ginsburg criticized the Ninth Circuit Court of Appeals for similar tactics.
As Margot Cleveland argues, the Constitution makes clear that it is not the judiciary’s role to second-guess prosecutorial decisions. Based on mandatory precedent from the D.C. Circuit Court in United States v. Fokker, the prosecutorial role lies squarely within the executive branch.
This move by Sullivan is like a bad sequel. Flynn has suffered unjustly enough: first at the hands of the Obama administration, then at the hands of overzealous prosecutors, and now at the hands of an activist judge. It is time to let the man move on with his life.