National Review Online
Saturday, May 02, 2020
For more than three years, Michael Flynn waged a strange
battle to clear his name after pleading guilty to lying to FBI agents and then
declining a judge’s invitation to withdraw the plea. But there has always been
something very wrong about the case, and we’ve learned more about it in recent
weeks.
The retired army general, fleetingly President Trump’s
first national-security adviser, was investigated during the Trump transition
by anti-Trump officials at the FBI and Obama Justice Department on nebulous
grounds.
There was no criminal predicate for the probe: Flynn’s
communications with Sergey Kislyak — then the Russian ambassador to the U.S. —
during the transition, which set off the whole affair, were entirely proper.
The idea that they violated the Logan Act forbidding private interference in
the conduct of U.S. foreign policy was always absurd. The last indictment under
the constitutionally
dubious act was in 1852, and the statute wasn’t meant to tie the hands of
high-level officials of an incoming administration.
Former FBI director James Comey broke protocol by having
agents interview Flynn at the White House on his first day on the job, a tactic
Comey subsequently told a chortling New York City audience he wouldn’t have
“gotten away with” in a more organized administration. Though the agents had a
recording of his conversation with the ambassador, they didn’t play it for
Flynn — instead simply grilling him.
The just-revealed notes of an FBI official prior to the
interview ask whether the goal was to elicit Flynn’s admission that he talked
with Kislyak about sanctions (the supposed Logan Act violation) or “to get him
to lie, so we can prosecute him or get him fired.” The notes are open to
interpretation, but it’s not clear what the FBI was doing besides hoping he’d
lie.
In a newly disclosed email, Lisa Page suggests slipping
in as unobtrusively as possible a warning that lying to the FBI is a crime, so
as not to put Flynn on his guard.
Still, the agents who interviewed Flynn didn’t think he
lied. Even if he did, as our own Andrew C. McCarthy has noted, a false
statement is not supposed to be actionable unless it is material to something
properly under investigation.
This paper-thin case (at best) was apparently on the
verge of being closed when top FBI officials intervened to keep that from
happening. Then, the case got picked up by Special Counsel Mueller’s team.
Mueller’s prosecutors pressured Flynn to plead guilty, hoping he’d help make
some sort of case against Trump.
That obviously came to nothing, but Flynn has been
financially ruined and still faces jail time.
As for Flynn’s guilty plea, his counsel contends that new
disclosures show it was elicited on the basis of threatening his son with
prosecution. His son’s alleged crime was failing to register with the Justice
Department as a foreign agent. Such a violation of the Foreign Agents
Registration Act had almost never been charged by the Justice department prior
to Mueller’s investigation, and it’s not even clear the act would apply to
Flynn’s son.
None of this was revealed to the court until now.
It was highly convenient for the Mueller team to have the
Flynn guilty plea as a high-profile scalp to wave around for the media, which
did indeed take delight in it and use it to argue that the probe was “closing
in on” Trump.
We were never fans of Michael Flynn’s appointment as
national-security adviser. How he handled himself in this matter — and
especially his work for the government of Turkey while advising Trump in 2016 —
shows poor judgment. But he’s been treated unjustly.
The court, Attorney General Bill Barr, and President
Trump should all consider remedies. This isn’t how our justice system, or high
politics, should work.
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