Michael Flynn case should be dismissed to preserve justice
Previously undisclosed documents in the case of former national security adviser Michael Flynn offer us a chilling blueprint on how top FBI officials not only sought to entrap the former White House aide but sought to do so on such blatantly unconstitutional and manufactured grounds.
These new documents further undermine the view of both the legitimacy and motivations of those investigations under former FBI director James Comey. For all of those who have long seen a concerted effort within the Justice Department to target the Trump administration, the fragments will read like a Dead Sea Scrolls version of a “deep state” conspiracy.
One note reflects discussions within the FBI shortly after the 2016 election on how to entrap Flynn in an interview concerning his conversations with Russian Ambassador Sergey Kislyak. According to Fox News, the note was written by the former FBI head of counterintelligence, Bill Priestap, after a meeting with Comey and his deputy director, Andrew McCabe.
The note states, “What is our goal? Truth and admission or to get him to lie, so we can prosecute him or get him fired?” This may have expressed an honest question over the motivation behind this targeting of Flynn, a decision for which Comey later publicly took credit when he had told an audience that he decided he could “get away” with sending “a couple guys over” to the White House to set up Flynn and make the case.
The new documents also explore how the Justice Department could get Flynn to admit breaking the Logan Act, a law that dates back to from 1799 which makes it a crime for a citizen to intervene in disputes between the United States and foreign governments. It has never been used to convict a citizen and is widely viewed as flagrantly unconstitutional.
In his role as the national security adviser to the president elect, there was nothing illegal in Flynn meeting with Kislyak. To use this abusive law here was utterly absurd, although other figures such as former acting Attorney General Sally Yates also raised it. Nevertheless, the FBI had latched onto this abusive law to target the retired Army lieutenant general.
Another newly released document is an email from former FBI lawyer Lisa Page to former FBI special agent Peter Strzok, who played the leadership role in targeting Flynn. In the email, Page suggests that Flynn could be set up by making a passing reference to a federal law that criminalizes lies to federal investigators. She suggested to Strzok that “it would be an easy way to just casually slip that in.” So this effort was not about protecting national security or learning critical intelligence. It was about bagging Flynn for the case in the legal version of a canned trophy hunt.
It is also disturbing that this evidence was only recently disclosed by the Justice Department. When Flynn was pressured to plead guilty to a single count of lying to investigators, he was unaware such evidence existed and that the federal investigators who had interviewed him told their superiors they did not think that Flynn intentionally lied when he denied discussing sanctions against Russia with Kislyak. Special counsel Robert Mueller and his team changed all that and decided to bring the dubious charge. They drained Flynn financially then threatened to charge his son.
Flynn never denied the conversation and knew the FBI had a transcript of it. Indeed, President Trump publicly discussed a desire to reframe Russian relations and renegotiate such areas of tensions. But Flynn still ultimately pleaded guilty to the single false statement to federal investigators. This additional information magnifies the doubts over the case.
Various FBI officials also lied and acted in arguably criminal or unethical ways, but all escaped without charges. McCabe had a supervisory role in the Flynn prosecution. He was then later found by the Justice Department inspector general to have repeatedly lied to investigators. While his case was referred for criminal charges, McCabe was fired but never charged. Strzok was also fired for his misconduct in the investigation.
Comey intentionally leaked FBI material, including potentially classified information but was never charged. Another FBI agent responsible for the secret warrants used for the Russia investigation had falsified evidence to maintain the investigation. He is still not indicted. The disconnect of these cases with the treatment of Flynn is galling and grotesque.
Even the judge in the case has added to this disturbing record. As Flynn appeared before District Judge Emmet Sullivan for sentencing, Sullivan launched into him and said he could be charged with treason and with working as an unregistered agent on behalf of Turkey. Pointing to a flag behind him, Sullivan declared to Flynn, “You were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. That undermines everything this flag over here stands for. Arguably, you sold your country out.”
Flynn was never charged with treason or with being a foreign agent. But when Sullivan menacingly asked if he wanted a sentence then and there, Flynn wisely passed. It is a record that truly shocks the conscience. While rare, it is still possible for the district court to right this wrong since Flynn has not been sentenced. The Justice Department can invite the court to use its inherent supervisory authority to right a wrong of its own making. As the Supreme Court made clear in 1932, “universal sense of justice” is a stake in such cases. It is the “duty of the court to stop the prosecution in the interest of the government itself to protect it from the illegal conduct of its officers and to preserve the purity of its courts.”
Flynn was a useful tool for everyone and everything but justice. Mueller had ignored the view of the investigators and coerced Flynn to plead to a crime he did not commit to gain damaging testimony against Trump and his associates that Flynn did not have. The media covered Flynn to report the flawed theory of Russia collusion and to foster the view that some sort of criminal conspiracy was being uncovered by Mueller. Even the federal judge used Flynn to rail against what he saw as a treasonous plot. What is left in the wake of the prosecution is an utter travesty of justice.
Justice demands a dismissal of his prosecution. But whatever the “goal” may have been in setting up Flynn, justice was not one of them.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.