Law and social reality in Constitutional adjudication
Why dismiss the Flynn case? Because the FBI can't prove it
The guiding tenet of the criminal justice system is that the government bears the burden of proving guilt beyond a reasonable doubt. All of the system's rules are rooted in this principle. These include the prosecutor's ethical obligation to dismiss a charge in the absence of a good-faith belief that a rational jury could convict the accused based on the government's evidence.
The Department of Justice (DOJ) last week dismissed the prosecution of Michael Flynn, who fleetingly served as President Trump's first national security adviser. In all the heated commentary over this decision, scant attention has been paid to the most compelling reason for vacating Flynn's 2017 guilty plea to one count of making false statements to FBI agents: The government wouldn't have a prayer of convicting Flynn at trial.
Allowing the conviction to stand would have been a travesty. This basic fact, this utter lack of sufficient evidence, is obscured by the DOJ's heavy reliance on a legal rationale for dropping the case. In its 20-page memorandum in support of dismissal, the DOJ contends that any false statements by Flynn could not have been material because there was no legitimate basis to investigate or interview him. Federal law makes materiality an essential element of a false-statements charge.
The FBI opened a counterintelligence probe of Flynn in August 2016 on the absurd ground that he might be a clandestine Russian agent. (Flynn is a retired three-star Army general and decorated combat commander, who had then recently written a book identifying Russia as a committed global adversary of the United States.) This suspicion was frivolously supported.
The FBI's then-director, James Comey, authorized closing the investigation in December 2016, and the paperwork to do so was completed on Jan. 4, 2017 - 20 days before the Flynn interview.
Then the FBI learned that Flynn, as an official in the Trump transition who was designated to become the president's national security adviser, had had communications in December with Russian ambassador Sergey Kislyak. The government was monitoring Kislyak, and recordings showed that Flynn did nothing inappropriate; there was no ground to reopen or continue the counterintelligence investigation or to begin a criminal investigation.
Likewise, DOJ never would have charged Flynn criminally with violating the Logan Act - a moribund, unconstitutional prohibition against freelance diplomacy. In the DOJ's 150-year history, the Logan Act has never been charged. No one has ever been convicted for violating it; there has been no case since 1852. To say it would be a preposterous basis for indicting a president-elect's top security adviser puts it mildly.
DOJ now theorizes that if the Flynn interview was not connected to a properly based investigation, any alleged false statements he made could not have been material. Both Flynn and the investigators, moreover, knew the Kislyak discussions were recorded. Flynn stressed that the agents could listen to the conversation if they wanted to know what was discussed. Any misstatements during the interview could not have affected the FBI's understanding.
A more indisputable rationale for dropping the Flynn case would have focused, not on a legal flaw, but on the factual inadequacy of the prosecution's evidence. Simply stated, there is no way prosecutors could have proved Flynn's guilt beyond a reasonable doubt.
First, Flynn's statements to investigators were equivocal. That creates significant questions about whether inaccuracies in his description of the Kislyak discussions were honest failures of recollection, not lies. The interview happened about a month after the Kislyak communications. In the interim, Flynn had hundreds of conversations with foreign counterparts. It would have been a challenge for anyone to remember the words of a conversation under those circumstances; and, in their legerdemain, the FBI strategically refused to refresh Flynn's recollection by playing recordings or showing a transcript.
Second, the FBI and prosecutors took inconsistent positions on whether Flynn intentionally misled them. The interviewing agents believed he was truthful, if forgetful. Director Comey reportedly said the question of whether Flynn lied was a "close call." Assuming this is so, a close call is not proof beyond a reasonable doubt.
Third, the agents went out of their way to deceive Flynn about the purpose of the interview, at which they hoped to trip him up. It is rote for FBI "302" reports - used to summarize witness interviews - to start by recounting that interviewing agents advised the subject of the nature of the interview. But they did not do that with Flynn. He was discouraged from consulting counsel and from reporting the FBI's request to speak with him to his White House chain-of-command. He was not given the customary advice of rights - the FBI, after officials acknowledged among themselves that they owed it to Flynn to advise him that a false statement could be grounds for prosecution, willfully withheld this admonition from him.
Let's put aside that Flynn now disputes whether he lied. In criminal proceedings, due process is not optional. If the FBI were interviewing a hardened criminal who had been arrested so many times he could recite Miranda warnings by heart, agents still would give the bureau's standard advice of rights; they would make certain to tell him that a false statement could be grounds for prosecution. With Flynn, though, they did not go "by the book." They did the thing that "the book" is supposed to prevent: Eliciting statements by deceiving a person about his legal rights.
Fourth, the two government witnesses in the case have monumental credibility problems. Under federal law, Flynn's statements confessing guilt during his plea proceedings would not be admissible against him at trial if the plea were vacated. And Flynn would claim, in any event, that his plea statements were induced by coercion and fraud - a threat to prosecute his son if he did not plead guilty, and the prosecutor's commitment not to prosecute his son, which was illegally withheld from the court.
Consequently, the government's entire case boils down to the testimony of two FBI agents: Peter Strzok, who was terminated for misconduct, and Joe Pientka, who appears to have been the case-agent on the Trump-Russia investigation and to have played a significant role in serial misrepresentations made to obtain surveillance warrants against former Trump campaign adviser Carter Page.
The FBI does not electronically record most interviews. There is no tape or transcript of Flynn's actual words. The government's entire case would consist of Strzok's and Pientka's testimony about what Flynn said. (The Fifth Amendment would bar prosecutors from calling Flynn as a witness against himself.) Not only do the two FBI witnesses have immense credibility problems in general; their specific performance in Flynn's case is jaw-dropping.
Strzok and Pientka were key participants in the FBI's decision to flout standard procedures for interviewing a member of the president's staff, which require alerting the DOJ and the White House counsel. Knowing that if they asked, they would be denied permission to interview Flynn, FBI officials mendaciously circumvented protocol. It was, in essence, an ambush interview.
But that barely scratches the surface.
In order to promote the accuracy of FBI "302s," those reports are supposed to be completed within five days of the interview. Usually, one agent is the main interrogator, another takes notes; one of the two is responsible for drafting the 302, which the two agents then finalize, making sure - between their memories and any notes taken - that the 302 accurately reflects the interviewee's statements.
The Flynn 302 went through multiple drafts, and the FBI has not produced the earliest iterations. If agents are just faithfully rendering a witness's account, that should never call for heavy editing. Yet, the Flynn 302 was still being edited on Feb. 10, 17 days after the interview. And, we know from text messages, it was being edited by Lisa Page, then an FBI lawyer working as counsel to then-Deputy Director Andrew McCabe. Page was neither an agent nor present at the Flynn interview; she had no business editing what Flynn said. In the contemporaneous texts, Page lambasts Strzok for so shoddy a rendition; Strzok says Page should have seen how bad was the version Pientka gave him, which Strzok labored mightily to fix before passing it along to Page. Strzok also planned to make final edits after Page was done. The 302, which apparently also was reviewed by even higher-ranking officials, was not finalized until Feb. 15.
In weirdness that signaled trouble, the FBI refused to disclose the 302 to Flynn's defense. When pressed by the court, the FBI eventually produced a 302, not of Flynn's interview, but of Strzok's "exit interview" - when he was being terminated - which purported to summarize Flynn's interview. This raised more questions. Finally, the FBI produced not one but two Flynn 302s: the first labeled a "deliberative" document (clearly, because Flynn's statements were extensively edited); the second generated later, when the FBI realized it had mistakenly left the "deliberative" label on the first. (The two 302s are the same, except for the label.)
Again, the texts elucidate that there must be earlier versions - Pientka's first draft, Strzok's alterations of it, Page's alterations of Strzok's draft, etc. These versions have never been disclosed, and who knows whether they still exist?
As if that were not bad enough, there are problems with the agents' handwritten notes. There are two sets of notes, one from each agent. Only a few weeks ago, prosecutors finally conceded that they'd misrepresented to the court and the defense which agent was the author of which set. There is, in addition, reason to suspect Strzok was not being forthright when, in his exit interview, he described Pientka as primarily responsible for writing the 302.
Under these circumstances, it makes sense that the Justice Department prefers to rely on a legal flaw in the false-statements charge as its main reason for dropping the case. If the problem is that Flynn's statements could not have been "material," then there is no need to get into these other unseemly facts.
Nevertheless, if this case had gone to trial, the whole sordid story would have come out. No rational jury would have convicted Flynn of making false statements based on the testimony of Strzok and Pientka. The bureau's irregular tactics, its dissembling, the equivocal nature of Flynn's statements and the FBI's sense that he was not trying to be deceptive, would have made proof beyond a reasonable doubt an insuperable hurdle.
In Flynn's case, the government could not conceivably have met its burden of proof. In dismissing the case on a legal rationale, the Justice Department avoided the potential of an ugly trial that would have damaged the FBI and DOJ.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is "Ball of Collusion." Follow him on Twitter @AndrewCMcCarthy.