The Flynn Case Should Be Dismissed In The Name Of Justice

440px-Michael_T_FlynnBelow is my column in The Hill newspaper on the new evidence released in the case of Michael Flynn.  As I said two years ago, it is unlikely the Judge Emmet Sullivan will dismiss this case regardless of such abuses, but he should.  As we discussed, there has been a concerted effort by media and legal experts to shrug away these highly disturbing documents by saying that such abuses happen all the time.  Journalist Ben Wittes, one of James Comey’s most vocal defenders, went even seemed to make such abuse of Flynn into a victory for racial justice:

“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.”

Many of us have spent our careers fighting such abuses for people who are not “lily white.”  That does not excuse abuses of people 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.

Here is the column:

Previously undisclosed documents in the case of former national security adviser Michael Flynn offer us a chilling blueprint on how top FBI officials not only sought to entrap the former White House aide but sought to do so on such blatantly unconstitutional and manufactured grounds.

These new documents further undermine the view of both the legitimacy and motivations of those investigations under former FBI director James Comey. For all of those who have long seen a concerted effort within the Justice Department to target the Trump administration, the fragments will read like a Dead Sea Scrolls version of a “deep state” conspiracy.

One note reflects discussions within the FBI shortly after the 2016 election on how to entrap Flynn in an interview concerning his conversations with Russian Ambassador Sergey Kislyak. According to Fox News, the note was written by the former FBI head of counterintelligence, Bill Priestap, after a meeting with Comey and his deputy director, Andrew McCabe.

The note states, “What is our goal? Truth and admission or to get him to lie, so we can prosecute him or get him fired?” This may have expressed an honest question over the motivation behind this targeting of Flynn, a decision for which Comey later publicly took credit when he had told an audience that he decided he could “get away” with sending “a couple guys over” to the White House to set up Flynn and make the case.

The new documents also explore how the Justice Department could get Flynn to admit breaking the Logan Act, a law that dates back to from 1799 which makes it a crime for a citizen to intervene in disputes between the United States and foreign governments. It has never been used to convict a citizen and is widely viewed as flagrantly unconstitutional.

In his role as the national security adviser to the president elect, there was nothing illegal in Flynn meeting with Kislyak. To use this abusive law here was utterly absurd, although other figures such as former acting Attorney General Sally Yates also raised it. Nevertheless, the FBI had latched onto this abusive law to target the retired Army lieutenant general.

Another newly released document is an email from former FBI lawyer Lisa Page to former FBI special agent Peter Strzok, who played the leadership role in targeting Flynn. In the email, Page suggests that Flynn could be set up by making a passing reference to a federal law that criminalizes lies to federal investigators. She suggested to Strzok that “it would be an easy way to just casually slip that in.” So this effort was not about protecting national security or learning critical intelligence. It was about bagging Flynn for the case in the legal version of a canned trophy hunt.

It is also disturbing that this evidence was only recently disclosed by the Justice Department. When Flynn was pressured to plead guilty to a single count of lying to investigators, he was unaware such evidence existed and that the federal investigators who had interviewed him told their superiors they did not think that Flynn intentionally lied when he denied discussing sanctions against Russia with Kislyak. Special counsel Robert Mueller and his team changed all that and decided to bring the dubious charge. They drained Flynn financially then threatened to charge his son.

Flynn never denied the conversation and knew the FBI had a transcript of it. Indeed, President Trump publicly discussed a desire to reframe Russian relations and renegotiate such areas of tensions. But Flynn still ultimately pleaded guilty to the single false statement to federal investigators. This additional information magnifies the doubts over the case.

Various FBI officials also lied and acted in arguably criminal or unethical ways, but all escaped without charges. McCabe had a supervisory role in the Flynn prosecution. He was then later found by the Justice Department inspector general to have repeatedly lied to investigators. While his case was referred for criminal charges, McCabe was fired but never charged. Strzok was also fired for his misconduct in the investigation.

Comey intentionally leaked FBI material, including potentially classified information but was never charged. Another FBI agent responsible for the secret warrants used for the Russia investigation had falsified evidence to maintain the investigation. He is still not indicted. The disconnect of these cases with the treatment of Flynn is galling and grotesque.

Even the judge in the case has added to this disturbing record. As Flynn appeared before District Judge Emmet Sullivan for sentencing, Sullivan launched into him and said he could be charged with treason and with working as an unregistered agent on behalf of Turkey. Pointing to a flag behind him, Sullivan declared to Flynn, “You were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. That undermines everything this flag over here stands for. Arguably, you sold your country out.”

Flynn was never charged with treason or with being a foreign agent. But when Sullivan menacingly asked if he wanted a sentence then and there, Flynn wisely passed. It is a record that truly shocks the conscience. While rare, it is still possible for the district court to right this wrong since Flynn has not been sentenced. The Justice Department can invite the court to use its inherent supervisory authority to right a wrong of its own making. That extraordinary admission is likely what it would take.  As the Supreme Court made clear in 1932, “universal sense of justice” is a stake in such cases. It is the “duty of the court to stop the prosecution in the interest of the government itself to protect it from the illegal conduct of its officers and to preserve the purity of its courts.”

Flynn was a useful tool for everyone and everything but justice. Mueller had ignored the view of the investigators and coerced Flynn to plead to a crime he did not commit to gain damaging testimony against Trump and his associates that Flynn did not have. The media covered Flynn to report the flawed theory of Russia collusion and to foster the view that some sort of criminal conspiracy was being uncovered by Mueller. Even the federal judge used Flynn to rail against what he saw as a treasonous plot. What is left in the wake of the prosecution is an utter travesty of justice.

Justice demands a dismissal of his prosecution. But whatever the “goal” may have been in setting up Flynn, justice was not one of them.

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

201 thoughts on “The Flynn Case Should Be Dismissed In The Name Of Justice”

  1. I’m most disturbed by the way the FBI does interviews. So they interview people, but instead of recording it, they simply write a report called an FD-302 which could say, well… anything they want it to.

    I’m of the mind that they should be required to record *all* interviews and provide these recordings, in full, at least to counsel and the judge when they use them in court as evidence of anything.

    I’m also of the mind that if they “lose” anything, the sysadmins should be put on leave immediately and an agency that does not answer to FBI leadership should analyze the system and its audit logs to understand what happened and prevent it from happening ever again.

    Every single modern system has an “audit log” that produces an “audit trail” that tells you who did what. When properly administered, these should be stored in a way such that they cannot be edited (e.g. WORM drives). So if Mr. X deleted a particular piece of evidence, they know who did it and when. If it truly was a backup failure, then they look into better redundancy to make sure that doesn’t ever happen again, etc.

    At least this is what SHOULD happen, but I don’t think many people even realize that there may be a possibility of something like this and so nobody looks into it. Also, any requirements for such systems should have this in mind as a requirement, but I think they already do, at least everything I know about has this sort of capability.

    It’s sad that private enterprise is well ahead of the government in terms of accountability, but not all that surprising, I guess. Some government processes seem engineered to avoid accountability…

    1. ” but instead of recording it, they simply write a report called an FD-302 which could say, well… anything they want it to.”

      An, I agree with this. The entire FBI needs to change the way they do things along with potentially having major changes as to who they are. There are now tremendous trust issues so I wonder how that will affect any criminals already found guilty or being prosecuted where the FBI is involved in a substantial part of the evidence.

  2. Flynn lied to the FBI, which is a crime. That is the only relevant consideration. The rest is Kellyannisms. I see where she gets it from.

    1. Flynn lied to the FBI, which is a crime.

      He didn’t, and it shouldn’t be.

      You and Gainesville are quite consistent about taking the wrong side of every question.

    2. You lie daily on this blog.

      Your brothers, O.J. Simpson, Bill Cosby, Michael Brown and Martin Luther King are personifications of lies.

      The 7th Floor is one big fabrication of corruption which supported the deceit and lies that were/are Obama (“natural born citizen” indeed).

      Courtrooms are cesspools of lies.

      “Flynn lied.”

      Seriously.

    3. Read the information recently released from the FBI. It demonstrates you were wrong before and you are wrong and you continue to be wrong in the present.

    4. @Natacha — The only evidence we have of Flynn’s “lie” to the FBI is the agent’s FD 302 — which was changed multiple times before being submitted in its ‘final’ version. We now know the 302 was edited by Lisa Page, who wasn’t even at the meeting. It was re-written by Peter Strzok, which violated FBI procedure. (At an interview, one agent asks the questions and the other takes notes. It is the note takers job to complete FD 302 to document the interview. In this case, Peter Strzok conducted the interview. It wasn’t his job to re-write the FD 302.) The FBI claims to have lost the original version of the 302. We don’t know what it may have said, but there is reason to doubt Page and Strzok would have spent so much time ‘editing’ it if had strongly supported a claim that Flynn had lied. Given all the problems with the 302, it’s doubtful a court would have given it much weight at trial. Indeed, it might not have been admitted as evidence.

      You might argue that Flynn’s ‘voluntary’ admission of guilt is conclusive evidence of his guilt. It’s not. We don’t even have to go into the significant pressure the Special Council’s office was putting on Flynn to cop a plea. Recall that Flynn agreed to a plea almost a full year after the interview took place. He was being told by the prosecution that the FBI’s contemporaneous notes, as documented on the FD 302, showed Flynn had made several misstatements and that those misstatements were material. Without a recording of the interview, how would Flynn have known if the FBI’s FD 302 was accurate or not? He would have known that he didn’t intend to make any misstatements, but he wouldn’t have been confident he could PROVE that any misstatements were unintentional. (Indeed, given the problems with the FD 302, we don’t even know if there were any misstatements.)

      Nor should we view Flynn’s admission of guilt as voluntary. If a man were arrested and the prosecutor offered to drop the charges against the man in exchange for sex with the man’s wife, we wouldn’t view the sex as ‘voluntary’. We’d view it as a form of rape. Here, Flynn ran up millions of dollars in legal fees defending himself against this charge. He was bankrupt. The prosecution threatened to charge Flynn’s son (for a crime that is almost always treated as a civil violation). That would have bankrupted Flynn’s son. The prosecution offered to make the madness stop if Flynn would plead guilty to a single charge of making a material misstatement. How voluntary is that?

      Lastly, even if Flynn intentionally lied to the FBI in the interview, it wouldn’t have been a crime. It’s only a crime to lie to the FBI when the interview is part of a legitimate investigation. In this case, the interview could NOT have been part of a legitimate investigation. Flynn had been cleared of any collusion with the Russians 20 days before. The stated purpose for the interview was to determine Flynn’s take on his calls with the Russian ambassador. But, that’s NOT a legitimate investigatory purpose! The FBI had a transcript of the calls. They knew what was said. Flynn could NOT have provided any additional information to the FBI about the call. Since Flynn could not have provided any additional information about the ‘subject of their investigation’ — the calls –, there could have been no investigative purpose for the interview. Therefore, even if every word out of Flynn’s mouth had been an intentional lie, it wouldn’t have been a crime.

    5. Strange that the FBI said in their own report that they did not believe that Flynn lied, and that they believed that Flynn had told them the truth to the best of their recollection. Which is the reason that the FBI was in the process of closing the investigation WITHOUT CHARGES on Jan. 4, 2017.

      Funny thing is, 2 days later Peter Strozk texted the person in charge of closing the file, asking them to leave it open since top FBI leadership had now gotten involved.

      Now what happened between Jan. 4 and Jan. 6, 2017? Suprise! the Jan. 5, 2017 Oval Office meeting with top FBI leadership, President Obama, and Vice President Biden, along with several other top national security figures.

      Strange coincidence, no? Interesting how the ship got turned around in one day from “he committed no crime so we’re closing the investigation” to “he lied to federal investigators so we’re referring him for criminal charges.”

      But your political passions and hatred won’t allow you to see the obvious truth, released for the entire world to see and read in the documents that are linked on the news site of your choosing.

  3. I was just reading Bill Roemer’s excellent book about the Chicago Outfit under “Joe Batters” Tony Accardo again. He’s recounting in one chapter how the FBI hatched a “scheme” to grant Sam Giancana immunity and then charge him with various things expecting him to walk himself into a “perjury trap.”

    https://www.amazon.com/Accardo-Godfather-William-Roemer-Jr/dp/0804114641

    Accardo ordered Giancana to clam up and fall on his sword, go to jail instead. He did.

    So many decades later, this is how the stay-behind team from the FBI went to work on entrapping a General engaged in legitimate diplomatic contacts on behalf of an incoming Presidential Administration! Shameful very shameful!

  4. More proof, if such were needed, that this is the common room in St Elizabeth’s.

    ♒⚠

  5. Amazing. My comment regarding St. Elizabeth’s disappeared.

    Babble on…

    🈴✳🔒

  6. The Flynn case should be dismissed and the “China” case should be prosecuted to the fullest extent of the law.

    China causes incalculable damage and death across the globe then mocks one of its victims, the U.S. —- China.

  7. Even If The Government Knows You’re Lying, Lying To The Government Is A Crime

    Some of the notes, which appear to have been taken by then-counterintelligence associate director Bill Priestap, lay out different scenarios for how an interview with Flynn might unfold and whether the agents should confront him directly with evidence he’s lying. The docs also include emails among FBI officials discussing whether to remind Flynn during the interview that lying to the FBI is a crime (the interviewing agents ultimately did not), as well as texts about keeping the Flynn investigation open, after an early January 2017 memo indicated it was being closed.

    Though some is redacted, it’s clear from the documents that the FBI agents went into the interview anticipating that Flynn might lie about his Kislyak conversations and that they had information that proved he was lying. But that foresight doesn’t vindicate Flynn of the conduct he pleaded guilty to, former prosecutors said.

    “Even if the government knows you’re lying, lying to the government is a crime,” Harry Sandick, a defense attorney who previously worked in the Manhattan U.S. Attorney’s Office, said. False statements, even if the government knows they’re false, are still criminal as long as their material to the investigation.

    “That’s not just the law for Michael Flynn, that’s the law for everyone,” Sandick said.

    Likewise, the FBI had no legal obligation to remind Flynn that lying to the FBI is a crime, even if for policy reasons agents might choose to issue such warnings in certain situations.

    “Someone of Michael Flynn’s stature most certainly knows he can’t lie to the FBI,” Barbara McQuade, a former U.S. attorney who now teaches at the University of Michigan Law School , told TPM.

    Flynn’s lawyers said special counsel Robert Mueller’s team committed “malfeasance” for deciding to prosecute Flynn despite being aware of these documents. The defense alleges that the feds “deliberately suppressed this evidence from the inception of this prosecution—knowing there was no crime by Mr. Flynn.”

    But nothing in the documents released this week were exculpatory, former prosecutors told TPM, meaning that they do not exonerate Flynn of allegations — which he previously admitted under oath — that he lied to the FBI agents about his Russian contacts.

    Edited from: “Why The Latest Flynn Entrapment Claims Are As Bogus As The Last Ones”

    Talking Points Memo, 4/30/20

    1. Even If The Government Knows You’re Lying, Lying To The Government Is A Crime

      Actually, it seldom is. Consult your state penal code, Peter. To be charged with “Perjury” and adjacent crimes the subject must have adhere to a set of discrete forms, often in discrete venues. (The administration of an oath or presence of a jurat is a trigger). To be charged with other sorts of offenses which involve lying to public employees, there has to be a considered act with a considered object in mind. (Setting off a fire alarm or impersonating a police officer would fall into this category).

      And, again, ordinary police departments record interrogations of suspects and witnesses. The FBI doesn’t. There’s a reason for that, and it doesn’t reflect well on the FBI.

  8. Glad to see these are being filed by students across the country.

    https://www.hbsslaw.com/uploads/case_downloads/tuition/05-01-20-hagens-berman-tuition-covid-19-class-action-lawsuit-gwu-redacted.pdf

    College Tuition & Room and Board Payback

    DEFENDANT NAME: Vanderbilt University, Brown University, Boston University, George Washington University
    CASE NUMBER: 3:20-mc-09999, 1:20-cv-00191, 1:20-cv-10834, 1:20-cv-01145
    COURT: Various U.S. District Courts
    PRACTICE AREA: Consumer Rights

    Despite sending students home and closing its campus(es), Defendant continues to charge for tuition and fees as if nothing has changed, continuing to reap the financial benefit of millions of dollars from students. Defendant does so despite students’ complete inability to continue school as normal, occupy campus buildings and dormitories, or avail themselves of school programs and events. So while students enrolled and paid Defendant for a comprehensive academic experience, Defendant instead offers Plaintiff and the Class Members something far less: a limited online experience presented by Google or Zoom, void of face-to-face faculty and peer interaction, separated from program resources, and barred from facilities vital to study.

    1. Estovir – Apparently some universities are convinced they can take money for services and not return it when they fail to provide what is promised. If they are skinned enough maybe they will finally get rid of the studies abominations. Some good may come of this.

  9. “The Flynn Case Should Be Dismissed In The Name Of Justice”

    – Professor Turley
    _______________

    And the entire Obama Gang must be apprehended, prosecuted and thrown in prison for the greatest crime in American history.
    ____________________________________________________________________________________________________

    The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious scandal in American political history.

    The co-conspirators are:

    Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann, Comey,
    Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic, Yates, Baker, Bruce Ohr,
    Nellie Ohr, Priestap, Kortan, Campbell, Sir Richard Dearlove, Steele, Simpson,
    Joseph Mifsud, Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry,
    Hillary, Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch,
    Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama,
    James E. Boasberg et al.

    1. Haha. High comedy. Thanks for playing.

      this is to “I sold my jello to the patient next door for internet time” georgie – paulie

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