Below is my column in The Hill newspaper on the new disclosures in the prosecution of former National Security Adviser Michael Flynn. Yesterday, the attorney hired by Judge Emmet Sullivan responded on his behalf to defend his controversial orders in the case to invite third parties to argue the merits of the motion to dismiss as well as raising his option to substitute his own criminal charge of perjury against Flynn. The Justice Department responded with a 45-page filing to a three-judge appeals court panel.
The attention will now focus on the appearance tomorrow of former Deputy Attorney General Rod Rosenstein in the Senate. For me, the most pertinent question is why this investigation continued past December and seemed to become to a search for a crime rather than the investigation of any crime or collusion with Russia.
Here is the column:
“Remember … Ambassador, you’re not talking to a diplomat, you’re talking to a soldier.” When President Trump’s incoming national security adviser, Michael Flynn, said those words to then-Russian Ambassador Sergey Kislyak, he also spoke to American intelligence agents listening in on the call. For three years, congressional Democrats have assured us Flynn’s calls to Kislyak were so disturbing that they set off alarms in the closing days of the Obama administration.
They were right. The newly released transcripts of Flynn’s calls are deeply disturbing — not for their evidence of criminality or collusion but for the total absence of such evidence. The transcripts, declassified Friday, strongly support new investigations by both the Justice Department and by Congress, starting with next week’s Senate testimony by former Deputy Attorney General Rod Rosenstein.
It turns out Flynn’s calls are not just predictable but even commendable at points. When the Obama administration hit the Russians with sanctions just before leaving office, the incoming Trump administration sought to avoid a major conflict at the very start of its term. Flynn asked the Russian to focus on “common enemies” in order to seek cooperation in the Middle East. The calls covered a variety of issues, including the sanctions.
What was not discussed was any quid pro quo or anything untoward or unlawful. Flynn stated what was already known to be Trump policy in seeking a new path with Russia. Flynn did not offer to remove sanctions but, rather, encouraged the Russians to respond in a reciprocal, commensurate manner if they felt they had to respond.
The calls, and Flynn’s identity, were leaked by as many as nine officials as the Obama administration left office — a serious federal crime, given their classified status. The most chilling aspect of the transcripts, however, is the lack of anything chilling in the calls themselves. Flynn is direct with Kislyak in trying to tone down the rhetoric and avoid retaliatory moves. He told Kislyak, “l am a very practical guy, and it’s about solutions. It’s about very practical solutions that we’re — that we need to come up with here.” Flynn said he understood the Russians might wish to retaliate for the Obama sanctions but encouraged them not to escalate the conflict just as the Trump administration took office.
Kislyak later spoke with Flynn again and confirmed that Moscow agreed to tone down the conflict in the practical approach laid out by Flynn. The media has focused on Flynn’s later denial of discussing sanctions; the transcripts confirm he did indeed discuss sanctions. However, the Justice Department has not sought to dismiss criminal charges against him because he told the truth but 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 the FBI continued to investigate Flynn in the absence of any crime or evidence of collusion. In December 2016, investigators had found no evidence of any crime by Flynn. They wanted to shut down the investigation; they were overruled by superiors, including FBI special agent Peter Strzok, Deputy Director Andrew McCabe and Director James Comey. Strzok told the investigators to keep the case alive, and McCabe is described as “cutting off” another high-ranking official who questioned the basis for continuing to investigate Flynn. All three officials were later fired, and all three were later found by career officials to have engaged in serious misconduct as part of the Russia investigation.
Recently disclosed information revealed that Comey and President Obama discussed using the Logan Act as a pretense for a criminal charge. The Logan Act criminalizes private negotiations with foreign governments; it is widely viewed as unconstitutional and has never been used successfully against any U.S. 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 crime Comey could come up with, long before there was a false statement by Flynn regarding his calls.
Not until February 2017 did Comey circumvent long-standing protocols and order an interview with Flynn. Comey later bragged that he “probably wouldn’t have … gotten away with it” in other administrations, but he sent “a couple guys over” to question Flynn, who was settling into his new office as national security adviser. We learned recently that Strzok discussed trying to get Flynn to give false or misleading information in that interview, to enable a criminal charge, and that FBI lawyer Lisa Page suggested agents “just casually slip” in a reference to the criminal provision for lying and then get Flynn to slip up on the details.
Flynn did slip up. While investigators said they were not convinced he intentionally lied, he gave a false statement. Later, 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, too.
The newly released transcripts reveal the lack of a foundation for that charge. Courts have held that the materiality requirement for such a charge requires that misstatements be linked to the particular “subject of the investigation.” The Justice Department found that the false statement in February 2017 was not material “to any viable counterintelligence investigation — or any investigation, for that matter — initiated by the FBI.” In other words, by that time, these FBI officials had no crime under investigation but were, instead, looking for a crime. The question is: Why?
So the transcripts confirm there never was a scintilla of criminal conduct or evidence of collusion against Flynn before or during these calls. Indeed, there was no viable 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. Nevertheless, facing the release of these transcripts, House Intelligence Committee Chairman Adam Schiff (D-Calif.) bizarrely maintained that “Flynn posed a severe counterintelligence risk” because he could be blackmailed over his false statement.
Putting aside the lack of prior evidence of criminality, Schiff ignores that there were transcripts to prevent such blackmail. Indeed, in the interview, Flynn indicated he assumed there was a transcript, and leaked media reports indicated that various officials were familiar with the content of the calls. The key to blackmail would have been for the Russians to have information that others did not have.
Ironically, in his calls with Kislyak, Flynn expressly sought a more frank, honest relationship with Russia. He told Kislyak “we have to stop talking past each other on — so that means that we have to understand exactly what it is that we want to try to achieve, okay?” That is a question that should now be directed at the FBI, to understand what it was trying to achieve by continuing an investigation long after it ran out of crimes to investigate.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.