Opinion | Judiciary

Michael Flynn transcripts reveal plenty except crime or collusion

The views expressed by contributors are their own and not the view of The Hill

"You are not talking to a diplomat. You are talking to a soldier." Incoming national security adviser Michael Flynn said those words to then Russian Ambassador Sergey Kislyak, and he also spoke to American intelligence agents listening in on the call. For over three years, several Democrats in Congress would assure us that his calls to Kislyak were so disturbing that they set off alarms in the last days of the Obama administration.

They were right. The newly released transcripts of the calls made by Flynn are deeply disturbing, not for their evidence of criminality or collusion but for the total absence of any such evidence of misconduct. The transcripts, which were declassified yesterday, strongly support new investigations by the Justice Department and by Congress, starting with Senate testimony next week by former Deputy Attorney General Rod Rosenstein.

It turns out the calls were not only predictable but even commendable at some points. When the Obama administration had imposed sanctions on Russia before leaving office, the incoming Trump administration tried to avoid a major conflict at the start of its term. Flynn had asked Kislyak to focus on "common enemies" in order to seek cooperation in the Middle East. The calls covered a variety of issues, including sanctions.

What was not discussed was anything untoward or unlawful. Flynn said what was already known to be Trump administration policy in seeking a new path forward with Moscow. Flynn did not offer to remove sanctions but rather encouraged the Russians to respond in a reciprocal manner if they felt they had to respond. The calls, along with the identity of Flynn, were leaked by several officials as the Obama administration left office, which is a serious federal crime, given their classified status.

The most chilling aspect of the transcripts is a lack of anything unlawful in the calls themselves. Flynn is direct with Kislyak in trying to tone down the rhetoric and avoid retaliation. Flynn stated, "l am a very practical guy, and it is about solutions." He knew the Russians might wish to retaliate for the Obama administration sanctions, but he sought to convince them not to escalate the conflict as the Trump administration took office.

Kislyak later spoke with Flynn again and confirmed that Moscow agreed to tone down the conflict. The media has focused on the denial from Flynn of discussing the sanctions on Russia. The transcripts confirm he did indeed bring up the sanctions. The Justice Department has not sought to dismiss criminal charges against him because he told the truth but rather because his statements did not meet a key element of materiality for the crime and were the result of troubling actions by high ranking officials.

The real question is why Flynn was investigated in the absence of a crime or evidence of collusion. After agents found no evidence of any crime by Flynn by the end of 2016, they wanted to shut down the investigation but several of their superiors, including James Comey, Andrew McCabe, and Peter Strzok, had overruled them. All three officials were fired and found to have engaged in misconduct with the Russia investigation.

Recent information revealed that President Obama and Comey discussed using the Logan Act as a pretense for a criminal charge. The law prohibits private negotiations with foreign governments. It is viewed by most legal experts as unconstitutional and has never been used successfully against an American citizen since the earliest days of the republic. Its use against the incoming national security adviser would have been absurd. Yet that unconstitutional crime was the only one that Comey could come up with before there was the false statement by Flynn about his calls.

It was not until early 2017 when Comey went around official protocol and ordered an interview with Flynn. Comey bragged that he probably would not have "gotten away with it" in other administrations. He sent agents to question Flynn, who was settling in to his new office as national security adviser. Strzok discussed trying to get Flynn to give false or misleading information during that interview to enable a criminal charge.

While investigators said they were not convinced that Flynn intentionally lied, he gave a false statement. Special counsel Robert Mueller charged Flynn with that false statement to pressure him into cooperating. Flynn fought the case into virtual bankruptcy but agreed to plead guilty when Mueller threatened to prosecute his son. The newly released transcripts reveal a shocking lack of foundation for that criminal charge.

The courts have held that the materiality requirement for such a charge requires that false statements must be linked to the particular subject of the investigation. The Justice Department found that the false statement was not material to any investigation. In other words, by that time, these officials remained in search of a crime. The question is why?

The transcripts confirm there was never any criminal conduct or evidence of collusion against Flynn before or during the calls. There was no federal criminal investigation to speak of when Comey sent "a couple guys over" to entrap Flynn. They already had the transcripts and the knowledge that Flynn had done nothing wrong. However, House Intelligence Committee Chairman Adam Schiff proclaimed that Flynn posed a severe intelligence risk because he could be blackmailed with his false statement.

Aside from the lack of prior criminal evidence, Schiff ignores that there were transcripts to prevent such blackmail. Flynn indicated he assumed there was a transcript, and leaked media reports indicated officials were familiar with the content of the calls. The key for blackmail would be for the Russians to have information that others did not maintain.

Flynn sought a more honest relationship with Russia in his calls. He told Kislyak, "We have to stop talking past each other. That means we have to understand exactly what it is that we want to try to achieve." This notion must be directed at former officials to understand what they were trying to achieve with an investigation with zero evidence of a crime.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

Outbrain