Yesterday, I discussed the release of new FBI documents in a column and on the blog. Much of the discussion yesterday concerned the disclosure of documents showing FBI officials debating how they could trap Flynn in a crime. They focused on the Logan Act, a flagrantly unconstitutional law that has never been used to convict a single U.S. citizen. These documents do not show prosecutors finding a way to arrest someone suspecting of a crime. They show prosecutors trying to create a crime. However, there is also other evidence that is equally troubling over the role of one of the most controversial figures in the Russian investigation, fired former Special Agent Peter Strzok. It now seems that it was Strzok who reached out to stop investigators from closing the Flynn case for lack of a crime. He then manufactured a crime. The response of media and legal experts to excuse this thuggish and abusive record is nothing short of breathtaking.
Strzok’s bias and violation of FBI rules led to career Justice Department investigators referring his case to prosecutors and led to his firing from the FBI. His emails showed intense bias against Donald Trump and highly concerning statements about having an “insurance policy” in place if Trump were to win the election.
It was previously known that the investigators who interviewed Flynn did not believe that he intentionally lied. That made sense. Flynn did not deny the conversations with then-Russian Ambassador Sergey Kislyak. Moreover, Flynn told the investigators that he knew that the call was inevitably monitored and that a transcript existed. However, he did not recall discussing sanctions with Kislyak. There was no reason to hide such a discussion. Trump had publicly stated an intent to reframe Russian relations and seek to develop a more positive posture with them.
It now appears that, on January 4, 2017, the FBI’s Washington Field Office issued a “Closing Communication” indicating that the bureau was terminating “CROSSFIRE RAZOR” — the newly disclosed codename for the investigation of Flynn. That is when Strzok intervened.
Keep in mind CROSSFIRE RAZOR was formed to determine whether Flynn “was directed and controlled by” or “coordinated activities with the Russian Federation in a manner which is a threat to the national security” of the United States or a violation of federal foreign agent laws. The FBI investigated Flynn and various databases and determined that “no derogatory information was identified in FBI holdings.” Due to this conclusion, the Washington Field Office concluded that Flynn “was no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case.”
On that same day, however, Strzok instructed the FBI case manager handling CROSSFIRE RAZOR to keep the investigation open, telling him “Hey don’t close RAZOR.” The FBI official replied, “Okay.” Strzok then confirmed again, “Still open right? And you’re the case agent? Going to send you [REDACTED] for the file.” The FBI official confirmed: “I have not closed it … Still open.” Strzok responded “Rgr. I couldn’t raise [REDACTED] earlier. Pls keep it open for now.”
Strzok also wrote FBI lawyer Lisa Page, the same person Strzok had referenced his “insurance policy” to in emails. Strzok texted Page: “Razor still open. :@ but serendipitously good, I guess. You want those chips and Oreos?” Page replied “Phew. But yeah that’s amazing that he is still open. Good, I guess.” Strzok replied “Yeah, our utter incompetence actually helps us. 20% of the time, I’m guessing :)”
That exchange is not disconcerting as Strzok’s actions. After a finding of “no derogatory information,” Strzok reached for the Logan Act and sent a research paper on the notoriously unconstitutional law. Thus, faced with a lack of evidence of any crime, Strzok’s response was to order the investigation be kept open and then focused attention on an unconstitutional law never used to convict a single person. Its use against the incoming national security advisor to say it is a crime to discuss foreign relations with a Russian official during the transition would have been utterly absurd.
The same officials then sent two investigators into the White House, knowingly evading the long-standing rules of contacting the White House Counsel’s office in advance — something former FBI Director James Comey later bragged about and said that he “got away with it.”
So what happened then? We know that the investigators did not believe that Flynn intentionally lied to them about the sanctions discussion and told their superiors that they did not see evidence of a crime. Later Robert Mueller and his staff proceeded to charge Flynn with the single count. They then drained Flynn of millions and threatened to prosecute his son. He proceeded to take the plea.
This is a record that should be an outrage to anyone who values the rule of law. Instead, various news outlets found experts to say that this is all standard stuff and even that courts have “blessed” such tactics. So prosecutors, faced with reports that there is no crime by an individual, routinely create crimes in order to prosecute? Apparently that happens all the time.
National security lawyer Bradley P. Moss, stated that “These tactics, while maybe unseemly to the public, are largely consistent with the very type of deceptive interrogation techniques law enforcement has been permitted to use for at least 50 years.” Such responses avoid a discussion of whether such “unseemly” tactics are right or whether this case was abusive. It simply notes that courts have not intervened in cases where past abuses have been raised. It is true that abuses occur and courts narrowly define their roles in the review of such conduct. However, that is not license for such abuses and certainly not a reason not to address whether the conduct was right.
Renato Mariotti, a CNN legal analyst said that “If critics want to criticize what the FBI did to Flynn, they need to change the law more generally, because he was treated like many others the FBI has interviewed over the years.” I have been a criminal defense attorney for decades and I have never seen a record like this where investigators find no evidence of a crime but prosecutors sit around to create a crime. These experts simply ignore that Strzok prevented the closure of a criminal case for lack of any evidence of a crimes and suggested that they use a clearly unconstitutional law to charge the incoming National Security Adviser. Moreover, none are asking why such an extraordinary effort would be made.
Journalist Ben Wittes, one of James Comey’s most vocal defenders, went even further:
“If you’re outraged by the FBI’s tactics with Flynn, keep in mind that they do these things every day against drug dealers, gang members, and terrorists. Except those people are black, Hispanic, and Middle Eastern—not “lock ‘er up” lily white.”
This is a variation of “they all do it” with a weird twist. Many of us have spent our careers fighting such abuses for people who are not “lily white.” That does not excuse abuses of people who are white. Principle means fighting abuses against everyone.
There was no crime committed by Flynn before prosecutors manufactured a case under 18 U.S.C. 1001. The reaction from the media is “well everyone does it” and some even noted that innocent people are charged all the time. The moral and ethical relativism is astonishing. Many of these experts are the same lawyers who have said for three years that a long list of crimes were established against Trump from treason to bribery. None of those crimes were the basis for a single count of impeachment by the House of Representatives, which proceeded on two narrow counts connected to the Ukraine controversy.
What is so disconcerting is that it would take little effort to acknowledge that this record is highly disturbing and wrong, but not enough to throw out the plea. As I said last year, it is unlikely that Judge Sullivan will toss out the plea. Yet, because such analysis would seem to benefit a Trump associate, the media has aligned itself with an outrageous record of bias and abuse. There was a time when MSNBC, CNN, the Washington Post and other outlets were voices against such prosecutorial abuse. However, in this age of rage, even this record is dismissed as “routine” to avoid undermining a crushingly consistent narrative that the Russian investigation was based on real crimes, albeit collateral crimes. The “nothing to see here” coverage sacrifices both legal and journalistic values to to maintain a transparently biased narrative.