Recent reporting raised questions about the circumstances surrounding Michael Flynn’s guilty plea for making “false statements.”
Apparently, Peter Strzok, the FBI agent who conducted Flynn’s January 2017 interview, believed Flynn had been truthful. Reportedly, the FBI decided to take no action. On March 2, then-FBI director James ComeyJames Brien ComeyGiuliani told investigators it was OK to 'throw a fake' during campaign DOJ watchdog unable to determine if FBI fed Giuliani information ahead of 2016 election Biden sister has book deal, set to publish in April MORE confirmed this to the House Intelligence Committee.
There are two intriguing questions, however, that should be asked and answered first. These questions go to Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE’s nature and whether he can be a fair arbiter:
- What accounted for Strzok’s and Mueller’s vastly different assessments of Flynn’s veracity?
- What can we expect from Mueller when it comes to judging President TrumpDonald TrumpTrump goes after Cassidy after saying he wouldn't support him for president in 2024 Jan. 6 panel lays out criminal contempt case against Bannon Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups MORE’s veracity?
As a former FBI agent, I believe the answers lie in an examination of the FBI’s disciplinary system under Mueller. In fact, this obscure Mueller process may well hold the key to understanding why Flynn’s guilty plea may be less a reflection of Flynn’s level of candor than a product of Mueller’s aggressive tactics — particularly, the tactic of using disingenuous allegations of lying to decide judicial matters.
Moreover, a closer look at this process may hint at what the special counsel has in store for the president.
The FBI’s disciplinary system consists of investigation, proposal, decision, and an appellate process to review the decision. In 2004, early in his tenure as director, Mueller fundamentally altered this system by placing the proposal and decision stages in the hands of a surrogate. This meant that, contrary to an established principle of judicial fairness, Mueller’s surrogate would be prosecutor and judge, assembling the case against an employee and deciding the outcome of that case.
When the Department of Justice criticized the FBI for failing to separate these stages, Mueller refused to make this change. This refusal came on the heels of a 2005 Mueller decision to weaken the appellate standard for reviewing disciplinary decisions, thus undermining the check and balance on a system that Mueller had already made inherently unfair.
My observation, and that of others, found that Mueller’s system engaged several astounding and potentially unlawful practices such as disingenuously charging employees with lying, misrepresenting or omitting evidence to support such charges, and preventing the acquisition of evidence to refute such charges. As a result, a charged employee had little chance of prevailing on the facts if Mueller subjectively believed there was some other basis for dismissal.
To better understand the tactics Mueller may have employed to obtain a Flynn guilty plea, let’s look at a typical scenario in the Mueller system to see how accusations of lying were used to decide disciplinary cases.
When "Agent Smith" made a headline-grabbing appearance at a dinner party with a guest list that included an individual connected to the defendant in a major case he was supervising, a conflict-of-interest was suggested. Subsequently, a disciplinary case was opened.
Now, let’s say Mueller wanted the option to dismiss Smith even if the facts of the case did not support dismissal. To make this possible, after an investigation, the centerpiece of which would be Smith’s testimony, a proposal would be made by Mueller’s surrogate charging Smith with lying.
The charge would likely hinge on something as indistinct from each other as the color “scarlet” and the color “red.” The charge also would be likely to misrepresent the significance of supporting evidence or omit contradicting evidence, or both.
Hence, the charge might be worded like this:
“When asked to describe the vehicle you drove to the dinner party, you said the vehicle’s color is red. However, the manufacturer lists the color as scarlet. Since you attended a university whose official color is scarlet, you should have known the difference between scarlet and red. I, therefore, charge you with ‘lying under oath,’ and if found to be true, that you be dismissed from the FBI.”
While defending himself, Smith might request to have someone from the car company explain that scarlet is just a marketing term for red. But this commonsense request would be denied.
You see, the difference between scarlet and red was not the real issue. The real issue was that the FBI agent who oversaw an investigation into the activities of a regional bank knowingly attended a dinner party with a major shareholder of the same bank. Although nothing inappropriate was discussed, and only a minor disciplinary code was violated, the incident made the news.
If Mueller concluded Smith did not understand the gravity of the incident, or if he believed there was an unrelated basis for dismissal, instead of penalizing Smith for the minor infraction, Mueller’s surrogate would make an improper decision that Smith lied about the car’s color.
Thus, by first charging and then finding that an employee lied, by misrepresenting the evidence to support the charge, and by preventing the acquisition of evidence to refute the charge, Mueller could push a charged employee to resign.
The parallels between Mueller’s system and the circumstances of Flynn’s guilty plea are clear.
The vastly different assessments of Flynn’s veracity suggest that Mueller’s accusation of lying was aggressive. Or worse, disingenuous. It would not surprise me to learn this charge hinged on something as subjective as the difference between scarlett and red.
That Flynn had to choose between a guilty plea or mounting a costly defense is like the choice an FBI employee had to make when facing a disingenuous accusation of lying. Resign, or accept the stigma of being fired — and then try to convince an appellate board (in Flynn’s case, a jury) that scarlet and red, while technically different, are for all intents and purposes the same.
Most resign, as did I. And many, like Flynn, plead guilty.
My experience as an FBI agent taught me to look to the past to predict the future. Using disingenuous allegations of lying to decide judicial matters is Mueller’s past. It appears this practice continued in the Flynn case. I believe it explains the contradictory assessments of Flynn’s veracity and may explain why Flynn pled guilty instead of opting for his day in court.
It may also say something about the president’s legal future.
As President Trump’s interview with the special counsel looms, his attorneys would be wise to consider the implications of Mueller’s philosophy of “justice” and the role it may play in the investigation of their client.
After all, scarlet is red and that’s no lie.
James S. Davidson was an FBI special agent for 23 years. He investigated major crimes in Texas and California and served in Ukraine, Israel and Washington. He is now the CEO of Vendy, a Silicon Beach technology startup.