According to the U.S. Justice Department, continuing to prosecute Michael Flynn “would not serve the interests of justice.” The way he was treated by FBI agents and Justice Department prosecutors—and even his own lawyers—should scare every American.
Fortunately, the Department of Justice under the leadership of Attorney General Bill Barr took a first step in righting this wrong by filing a motion to dismiss the charges against Flynn—charges that now look like they never should have been brought in the first place.
By now, the backstory may be familiar. A three-star general who clashed with the Obama administration as head of the Defense Intelligence Agency, Flynn retired from the military. He then started his own consulting firm and began advising then-candidate Donald Trump. After the election, Flynn helped with the Trump transition team and, ultimately, was appointed as national security adviser to the new president.
What did the FBI question him about? A December 2016 conversation Flynn had with Russian Ambassador Sergey Kislyak. The conversation was perfectly legitimate, as Flynn was the incoming national security advisor for the president-elect.
The exact legal basis for why the FBI wanted to talk to Flynn has always been murky and the grounds look more dubious now than ever.
Sally Yates, the former deputy attorney general in the Obama administration, told Congress it was because Flynn had supposedly violated the Logan Act by holding that conversation. The Logan Act (18 U.S.C. §953) is a more than two-hundred-year-old criminal statute that purports to ban Americans from engaging in unauthorized negotiations with officials from a foreign government that is having a dispute with the United States. There have been only two attempts to prosecute anyone under the law, the last coming in 1852. Neither attempt was successful. Why had there been no prosecutions after that? Because virtually all legal scholars on both sides of the political aisle agree that it is “flagrantly unconstitutional.”
In modern times, many prominent individuals—like Jesse Jackson, Danny Glover, Sean Penn, Dennis Rodman, Ted Kennedy, and John Kerry–have violated the act, some repeatedly. Even if the act could be applied to many private individuals, it makes no sense to apply it to an appointee of an incoming administration whose duties include speaking with representatives of foreign governments. In fact, the motion to dismiss admits that “the Logan Act would be difficult to prosecute.”
This is an important consideration because it means that, contrary to Sally Yates’s testimony, the FBI had no valid legal basis for interviewing Flynn. Moreover, the meeting request was inappropriate. Then-Deputy FBI Director Andrew McCabe simply called Flynn and asked whether some FBI agents could meet with him, telling Flynn “it was no big deal.” (There was no mention of Kislyak.) The request also violated standard protocol, as an FBI request to interview someone like Flynn should have been routed through the White House Counsel’s Office. The FBI has admitted that they knew that but chose to contact Flynn directly anyway.
What makes this even worse is the release of handwritten notes believed to be those of the FBI’s former head of counterintelligence, Bill Priestap. The notes describe a meeting with FBI Director James Comey and Deputy Director McCabe in which they discussed their goals in having agents interview Flynn. Keep in mind that the FBI is a law enforcement agency, not a policy arm of the executive branch. Yet Priestap’s notes show that he questioned whether their true objective was to get the truth or to get Flynn to lie in order to “prosecute him or get him fired.”
The FBI’s job is to investigate possible violations of federal law, not to interfere in the transition of power in the executive branch in order to get an advisor “fired.” George Washington University Law Professor Jonathan Turley calls this misuse of FBI authority “chilling.”
Based on what we now know (which could change as more information becomes available), these documents show that Flynn was treated unfairly—perhaps unethically—by prosecutors and even his own lawyers.
Federal prosecutors have a constitutional and ethical obligation to turn over all potentially exculpatory evidence to a defendant and his counsel. This constitutional rule derives from the Supreme Court’s decision in Brady v. Maryland (1963).
As a corollary to this “Brady Rule,” prosecutors are also required to turn over any impeachment information—information that could be used to attack the bias or credibility of a witness. This “Giglio Rule” derives from the Supreme Court’s decision in Giglio v. United States (1972).
Every federal prosecutor in the Department of Justice receives annual training on their obligations and responsibilities under these rules. They’re a big deal.
As part of this training, prosecutors typically review the department’s own policies that recognize “Government disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial.”
These same policies go on to say that prosecutors must turn over information beyond what is constitutionally required. “Recognizing that it is sometimes difficult to assess the materiality of evidence before trial, prosecutors generally must take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence.”
Documents released by the Justice Department suggest that prosecutors from the Special Counsel’s Office may have run afoul of these rules. Even if they didn’t technically violate them, they certainly violated their intent.
Here’s how that happened: Flynn pleaded guilty to a single violation of 18 U.S.C. § 1001—essentially that he knowingly and willfully lied to FBI agents about whether he had earlier discussed sanctions with the Russian ambassador. In other words, he must have intended to mislead them and his false statements must have been material to their investigation.
In fact, in his plea agreement and statement of the offense, the DOJ lawyers explicitly agreed that “Flynn’s false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals associated with the [Trump] Campaign and Russia’s efforts to interfere with the 2016 presidential election.” No mention of the Logan Act.
As should be clear, the factual predicate for the FBI’s investigation of Flynn was incredibly weak. As laid out in a report by the Justice Department’s Inspector General, it is highly questionable whether there ever was a valid factual predicate to initiate an investigation into alleged collusion between the Russian government and Trump campaign. Much of the information that the FBI received was unverified and from a source who was being paid by the campaign of Trump’s political opponent. Moreover, based on what we now know, the FBI found no derogatory information that would cast specific suspicion on Flynn in the national security databases they checked as part of that investigation.
More important to the materiality determination is the timeline revealed in this most recent release of documents from the Justice Department.
According to the charging document, Flynn pleaded guilty to willfully and knowingly making the false statements during his Jan. 24, 2017, voluntary interview with the FBI.
Based on the latest release of documents, the original FBI agents assigned to the matter had decided almost three weeks beforehand—on January 4—to close its file on Flynn because he “was no longer a viable candidate as part of the larger Crossfire Hurricane [Russian Interference] case.” What changed? FBI Special Agent Pete Strozk, who the FBI later fired for his misconduct and bias against Trump during the Russia investigation, intervened and asked that the case not be closed.
It has been widely reported that, immediately after that interview, the interviewing agents—including Strozk—told their superiors that they didn’t think Flynn had lied to them. This is not dispositive one way or the other; we have all been fooled at one time or another by very good liars. But such information is certainly exculpatory and likely should have been disclosed to Flynn and his defense team.
If any misstatements by Flynn during his interview truly were unintentional, then why would Flynn plead guilty?
One possible answer is that he faced other legal issues and sought to avoid being prosecuted for those other actions by pleading guilty to this charge.
Another, more troubling possibility, is that Flynn agreed to plead guilty so that his son wouldn’t be prosecuted for a felony offense involving a violation of the Foreign Agents Registration Act (FARA) for work done long before Flynn’s involvement with the Trump campaign.
That’s more understandable.
Threatening to charge Flynn’s son unless Flynn pleads guilty might be unseemly; it’s not per se illegal or unethical. That’s a conversation for another day. But what’s troubling about this particular agreement, if it exists, is that it wasn’t disclosed—to the court or to the future parties against whom Flynn would testify if he cooperated with prosecutors.