Criminalizing Politics: The Investigation of General Flynn By Andrew C. McCarthy
The Obama administration detested Flynn and targeted him with trumped-up charges that are falling apart under scrutiny.
Author’s Note: What follows is an excerpt from my book Ball of Collusion: The Plot to Rig and Election and Destroy a Presidency, published in August 2019. The endnotes have been omitted, though I have included supporting links to several relevant reports that are cited in the endnotes. The excerpt contends that that there was no basis in fact or law for the investigation of General Michael Flynn, an argument I began making when reports about the investigation first emerged in early 2017. As further explained in my column today on the NR homepage, last Friday evening, the Justice Department belatedly disclosed exculpatory information indicating, reportedly, that there was no valid law-enforcement reason for the FBI to interview Flynn in January 2017, and that he later pled guilty under the threat that if he did not do so, prosecutors would charge his son with a crime — an understanding that was withheld from the court at the time of the guilty plea. In making the disclosure, the Justice Department signaled that more disclosures about the case are forthcoming.
Could anything have made the Obama administration giddier than the prospect of making a criminal case on Michael Flynn?
Flynn is a retired Army lieutenant general, who made his mark on modern insurgent warfare by helping revolutionize the rapid dissemination of battlefield intelligence. He was promoted by President Obama to lead the Defense Intelligence Agency. He is also a headstrong man who got himself on Obama’s bad side by questioning counterterrorism strategy, particularly the administration’s weakness on Iran. He was detested by Obama political and national-security officials for calling them out on politicizing intelligence. The FBI was not a fan, least of all Deputy Director Andy McCabe, because Flynn had supported an agent who claimed the Bureau had subjected her to sex discrimination.
After Obama fired him from the DIA post, Flynn became an important Trump-campaign surrogate, which gave him a national media platform from which to rip Obama’s foreign policy. When Trump won the election, Obama counseled him against tapping Flynn for a top administration job. Trump ignored the advice, naming Flynn his national-security advisor. Flynn worked on the Trump transition and incensed Obama officials by lobbying against a U.N. resolution against Israel that the Obama administration, in its profiles-in-courage style, orchestrated and then abstained from voting on. The collusion narrative notwithstanding, Russia rebuffed Trump’s entreaties on the Israel resolution.
Obama’s late-December imposition of sanctions on Russia got the attention of Sergey Kislyak, the Kremlin’s ambassador to the United States, just as the administration figured it would. Kislyak, who has a wide, bipartisan circle of Washington contacts, contacted Flynn, who, as a member of Trump’s transition team, was dealing with a variety of foreign counterparts.
The next day, December 29, Flynn called the president-elect’s Mar-a-Lago resort in Palm Beach, where senior transition officials were cobbling together a new administration for the candidate no one had expected to win. Flynn and his colleagues discussed the Russia sanctions and their potential effect on Trump’s foreign policy. Flynn was advised to convey the message to Kislyak that Russia should resist any urge to escalate the situation. Immediately afterwards, Flynn called Kislyak. The topic of sanctions was discussed, but not a deal on sanctions. Rather, Flynn simply urged that Russia limit itself to no more than a reciprocal response, rather than escalate matters. This, obviously, is what we should hope any responsible American official, regardless of party, would propose.
As Flynn should surely have known, Kislyak, an overt agent of Russia, was subject to FISA monitoring. The FBI counterintelligence agents were not only eavesdropping on Kislyak’s discussion with Flynn; they were doing so in consultation with “Obama advisers,” as The New York Times gently described them. The Times elaborated:
Obama officials asked the FBI if a quid pro quo had been discussed on the call, and the answer came back no, according to one of the officials, who like others asked not to be named discussing delicate communications. The topic of sanctions came up, they were told, but there was no deal.
Asked not to be named discussing delicate communications. That’s a good one. Let me translate. The officials did not want to identify themselves because they were committing a felony: FISA intercepts are classified, and disclosing them to unauthorized people, including the media, is a serious crime.
Two things, in any event, should be observed. First, the Flynn investigation was a vindictive farce: Even if there had been a substantive discussion of sanctions, there would have been no law violation. But there was no such discussion, just the mere mention of sanctions, prompting Flynn’s proper response: Don’t escalate. Second, the Flynn–Kislyak communication became the grist for an outrageous classified leak for which, to this day, no one has ever been prosecuted.
Eventually, the FBI and the Justice Department were forced to disclose portions of the House Intelligence Committee Report that they had initially redacted. We thus learned that, for some period of time during 2016, the FBI was conducting a counterintelligence investigation of General Flynn. There are still relevant redactions, so the basis for this investigation remains unclear. It apparently took place during the campaign, but it seems unlikely that it could have been related to Moscow’s cyberespionage activity.
Did the FBI open an investigation on suspicion that the decorated 33-year combat veteran of the U.S. Army was an agent of Russia engaged in clandestine activity against the United States? It’s possible, though that would be hard to believe. Whatever the basis for investigating Flynn, Director Comey recalled having “authorized the closure” of that investigation “by late December 2016.” It is unclear, however, whether the investigation was actually closed.
In the meantime, the Obama administration took the position that Flynn’s conversation with Kislyak could be a criminal offense. This was absurd. There was no illegality in Flynn’s communications with officials of foreign governments. Of course, Trump was not yet president and there was post-election fervor over Russia, so if Flynn had engaged in negotiations with Kislyak, it would have been politically boneheaded. But not illegal. President Trump eventually dismissed Flynn as national-security adviser on February 13, 2017 (after only three weeks on the job), and Flynn was later prosecuted by Special Counsel Mueller (we’ll come to that). But Flynn’s firing and prosecution were not due to his discussion of sanctions with Kislyak, as tirelessly portrayed by the collusion narrative. Flynn was fired for inaccurately describing his Kislyak conversation to Vice President Pence and other administration officials, and he was prosecuted for summarizing that conversation inaccurately in statements to FBI agents.
On January 12, 2017, The Washington Post’s David Ignatius published a leak from an unidentified “senior U.S. government official,” describing Flynn’s communications with Kislyak after Obama announced the anti-Russia sanctions. Naturally, the classified leak was not the crime that interested the journalist. Ignatius instead focused on an imaginary crime — one that just happens to have been under consideration at that very time in the top tier of the Obama Justice Department: Flynn’s flouting of the Logan Act.
Deputy Attorney General Yates was theorizing that it might be possible to prosecute Flynn under this vestige of the John Adams administration (1797–1801), a dark time for free-speech rights. The statute purports to criminalize “any correspondence or intercourse” with agents of a foreign sovereign conducted “without authority of the United States” — an impossibly vague phrase that probably means permission from the executive branch. No court has had an opportunity to rule that the Logan Act is unconstitutional because, realizing its infirmity, the Justice Department never invokes it. In its 219-year history, the Logan Act has not resulted in a single conviction; indeed, there have been only two indictments, the last one in 1852.
Yet, the Logan Act appears to have been what the Justice Department had in mind. In later Senate testimony, Yates recounted that, in the first days of the new administration, she and Mary McCord (then-chief of Justice’s National Security Division) brought their ongoing concerns about Flynn to the attention of Don McGahn, then the White House counsel. According to Yates, “the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn engaged in was problematic in and of itself.” The “underlying conduct,” of course, was Flynn’s communication with Kislyak — his temerity to engage in talks with foreign officials without approval from the Obama administration.
Since this Logan Act theory does not pass the laugh test, Yates also had a fallback rationale: “blackmail.” This may have been even more ludicrous.
It turned out that the Obama administration had not only been surveilling Flynn’s communications with Kislyak; it had also been monitoring the Trump transition team’s political commentary. (Once you’ve been surveilling your political opposition for a few months, it’s apparently hard to stop.) Obama officials had thus heard Vice President Pence (among other Trump spokesmen) deny that Flynn had discussed sanctions with Kislyak. They deduced that Flynn must have misled his superiors.
This was preposterous. The Justice Department would have been very busy indeed if every untrue statement made publicly by an Obama official had been grounds for investigation. It was no business of federal prosecutors whether Pence had inaccurately reported Flynn’s conversation in a press statement, or whether Flynn had inaccurately informed Pence. Yet Yates surmised that Russia now had “leverage” over Trump’s national-security adviser: The Kremlin knew Flynn had discussed sanctions with Kislyak and, hence, that he must have lied to Pence. So, the — um — reasoning went, Putin could secretly threaten to expose this lie, which would intimidate Flynn into doing Putin’s bidding.
Got that? Me neither.
That’ because its silliness is palpable. First, Flynn and Russia also knew that the U.S. intelligence services had a recording of Flynn’s conversation with Kislyak. Blackmail works only if the compromising information is secret. The very fact that Yates knew what was on the recording illustrates that Russia had no unique knowledge that it could hope to exploit against Flynn. In fact, as the Kremlin had to know, so many American officials were aware of the Flynn–Kislyak conversation that one of them had leaked it to David Ignatius.
Second, Russia would not have concluded that Flynn necessarily misled Pence just because Pence repeated an inaccuracy. Broadcasting misinformation about diplomatic contacts is common — it was the story of Obama’s Iran deal. The Kremlin would probably have assumed that the fledgling Trump administration was telling a politically useful lie: The media and Democrats were so agitated about Obama’s Russia sanctions that, if they admitted discussing them, Trump officials risked cries of “Treason!”
And before you throw this book at me, I didn’t say political or diplomatic lies are admirable. I said they’re not prosecutable. We don’t want the Justice Department monitoring our politics or diplomacy.
The investigation of Flynn was baseless. So much so that Obama officials could not provide Congress with a coherent rationale for why FBI agents were dispatched to interview him as if he were a criminal suspect. When the House Intelligence Committee Report’s redactions were revealed, we finally got to see this portion that the Justice Department had concealed (“EN” refers to endnotes):
The Committee received conflicting testimony from Deputy Attorney General (DAG) Yates, Director Comey, Principal Deputy Assistant Attorney General McCord, and Deputy Director McCabe about whether the primary purpose of the interview was investigating potentially misleading statements to the Vice President, which the Vice President echoed publicly[,] about the content of those calls [EN 94, citing Yates]; a possible violation of the Logan Act [EN 95, citing Yates]; or a desire to obtain more information as part of the counterintelligence investigation into General Flynn. [EN 96, citing McCabe, who did not recall that Comey had authorized closing the counterintelligence investigation a month earlier.]
Not only was there no good legal reason to interview Flynn. There was no good factual reason. The Justice Department and the FBI already had a recording of the Flynn–Kislyak conversation. They knew what had been said — that’s why an intelligence official was able to leak to the Times that there had been no corrupt quid pro quo.
Nor was Flynn needed to interpret the call. When agents want a witness to explain unclear or coded parts of a recorded conversation, they play it for the witness and then ask, “What did this mean? What did that mean?” That’s not what happened in Flynn’s interview. Without the recording being played for him, he was instead asked to narrate from unaided memory what had been said four weeks earlier — an eternity for a busy official engaged in hundreds of conversations. This kind of interrogation makes sense only if the agents are hoping to nail him by finding inconsistencies. It’s called a perjury trap.
This is why lawyers do not let their clients sit for interviews by investigators until they have had an opportunity to review the relevant material and prepare for questioning. But Flynn did not have a lawyer. The president’s national-security adviser was quite intentionally braced at the White House by the FBI. Former Director Comey has been glibly brazen about it.
It was January 24, 2017, Flynn’s second full day as national-security adviser to a president with no national-security experience. He was crazed. Yet, pursuant to an instruction by Comey, McCabe called Flynn to say that two agents — Peter Strzok and Joe Pientka — would be coming by to see him. Flynn was discouraged from seeking counsel. As the FBI well knew, to interview a member of the president’s staff, the FBI is supposed go through the attorney general, who then seeks to arrange the questioning through the White House counsel. That way, there’s nothing sneaky: The FBI’s Justice Department superiors know what the bureau is doing and why; the White House counsel has an opportunity to be present; and the official sought for an interview can be advised — including advised whether he should have counsel because there may be criminal liability.
Asked during his book-tour interview how the agents managed to get into the White House to grill Flynn, Comey quipped, “I sent them.” His left-leaning New York City audience loved it. He continued, weirdly bragging that this was something “I probably wouldn’t have done or maybe gotten away with in . . . a more organized administration.” Normally, he said, there is a “process,” so that
if the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel and there would be discussions and approvals and it would be there. I thought, “It’s early enough, let’s just send a couple of guys over.”
What is it President Obama likes to say? Oh yeah, “Everything by the book.”
Flynn, to repeat, was eventually charged by Special Counsel Mueller’s team with lying to the agents — months after the FBI had reportedly closed the case upon concluding that he had not lied — there had just been innocent failures of recollection.
House Intelligence Committee Republicans contended that Comey himself had indicated that Flynn did not lie. In media interviews, the former director expressed bewilderment over this. In one, Comey told ABC host and Clinton pal George Stephanopoulos: “I don’t know where that’s coming from. . . . That — unless I’m — I said something that people misunderstood, I don’t remember even intending to say that. So, my recollection is I never said that to anybody.”
Yet, when the Justice Department was pressured to reveal passages that had been redacted from the Intelligence Committee’s report, there was this testimony from Comey: “The agents . . . discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”
Of course, it is always possible that there is some undisclosed testimony that would put this contradiction in a more favorable light. It is worth noting, though, that as long as Comey was the FBI director, Flynn was never charged with lying or any other crime. And, if anything, the snippets of McCabe’s testimony thus far disclosed are even more favorable to Flynn:
[The] conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that [Flynn] made in the interview . . . the statements were inconsistent with our understanding of the conversation he had actually had with the [Russian] ambassador.
McCabe added: “The two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”
Only when Robert Mueller and his very aggressive team of prosecutors took over the case was Flynn charged with lying. Flynn’s apologists argue that he was railroaded. Yet he pled guilty, voluntarily admitting he had lied. When his defenders insisted that he had done this under pressure — broken financially by legal fees, distraught that prosecutors might turn their sights on his son — the judge in his case offered him the opportunity to withdraw his guilty plea and argue that his rights had been violated. Flynn declined, reaffirming that he had misled his interrogators.
For that, Flynn has no one to blame but himself. He should never, however, have been put in that position. What the FBI and the Justice Department did to Flynn, what the Obama administration did to Flynn, was not illegal. But like most everything else in Russiagate, it was not right.
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