Above photo: White House National Security Adviser Susan Rice, shakes hands with incoming White House National Security Advisor Gen. Michael Flynn, on January 10, 2017, in Washington, DC. Mark Wilson/Getty Images.
Exactly What Flynn Did.
In late 2016, the FBI investigated Gen. Michael Flynn when he was a transition official for the possible “crime” of talking to Russia about foreign policy. Why can Biden do this?
Two weeks after Donald Trump wonthe 2016 election, the President-elect named Gen. Michael Flynn to be his National Security Advisor in both the transition and the new administration. Flynn, who had previously served as President Obama’s Director of the Defense Intelligence Agency and then campaigned for Trump, quickly got to work in his new position by reaching out to his counterparts in foreign governments, as is customary for national security transition team officials.
One of the calls Flynn made, in late December, was to Russian Ambassador Sergey Kislyak, after the Obama administration had imposed a series of sanctions on Moscow in response to pressure to punish the Russians for interference in the 2016 election, including the expulsion of diplomats. Gen. Flynn — fearful of an excessively retaliatory response from Moscow that could provoke what he saw as unnecessary confrontation, particularly given the growing anti-Russian sentiment in the U.S. — sought to persuade the Russians that there was no need for them to retaliate because the new administration, which was only three weeks away from taking over, would reset its relations with Moscow and try to forge a more constructive engagement. Flynn’s efforts were successful: Russian president Vladimir Putin announced on December 30 that they would not expel diplomats in response.
It is customary for post-election transition officials to work with their counterparts in foreign governments to lay the groundwork for relations with the new administration. As The Washington Post said about Flynn’s call: “it would not be uncommon for incoming administrations to interface with foreign governments with whom they will soon have to work.”
Despite its normalcy, Flynn’s call, which was recorded by the National Security Agency that had been targeting Russian officials, prompted the FBI — under the leadership of then-Director James Comey and Deputy Director Andrew McCabe — to decide to criminally investigate Flynn’s conversations with Kislyak.
Although the mid-2016 FBI investigation into Flynn’s possible corrupt connections to Moscow had been ordered closed for lack of evidence, the FBI manufactured a possible ground of criminality to justify its investigation of Flynn for this call: namely, possible violations of the Logan Act, a 150-year-old law that purports to criminalize attempts by a private citizen to conduct foreign policy at odds with official U.S. foreign policy which (a) has never been used to prosecute anyone; (b) is almost certainly unconstitutional; and (c) has been ignored — properly so — in countless more blatant cases, such as when then-House Minority Leader Nancy Pelosi undermined Bush administration policy to isolate Syrian leader Bashar al-Assad for helping Iraqi insurgents kill U.S. troops in Iraq by visiting Assad in 2007, infuriating the Bush White House and leading to frivolous calls from fringe right-wing voices for Pelosi’s prosecution under the Logan Act.
But Flynn’s ordinary call with the Russian ambassador became the pretext for further abuse of FBI and NSA powers as part of the security state’s ongoing efforts to interfere in the 2016 election and then sabotage the Trump administration before it even began. One way this corrupt agenda was carried out was by attempting to criminalize officials of the Trump campaign and then the new government with blatantly political motives.
First, agents within the security state committed the most serious leaking crimes that exist under U.S. law — revealing the contents of intercepted communications with foreign officials — by leaking the contents of Flynn’s calls to The Washington Post’s long-time CIA spokesman David Ignatius, which Ignatius reported on January 12. Two weeks later, on January 24, McCabe — acting on Comey’s orders but without notifying the White House Counsel, angering outgoing Acting Attorney General Sally Yates — called Flynn and told him that FBI agents would visit him to interrogate him about this call.
Documents finally made public earlier this year show that the FBI agents who visited Flynn did not believe he was lying to them, and that they openly discussed their intent to entrap Flynn into lying so that they could concoct a crime. Although Flynn said he could not remember having spoken to Kislyak about sanctions, the FBI agents, as well as FBI Director Comey himself, said that they believed this might have been by-product of honest lack of recollection, not an intent to deceive. After all, what motive would Flynn have for concealing a perfectly normal, customary and legal call as a transition official with this Russian counterpart other than, perhaps, a desire to avoid triggering what had became the insanely intense anti-Russian political obsession in the Democratic-friendly press?
Despite doubts by the FBI itself that Flynn had lied when saying he did not recall talking with Kislyak about sanctions, the Mueller team negotiated a deal with Flynn in which he would plead guilty to one count of lying to the FBI about his call with Kislyak. Mueller recommended no jail time for Flynn. Like so many guilty pleas that prosecutors coerce, it seems that Flynn pled guilty in large part due to threats by the Mueller team to prosecute his son if he refused.
One irony of the Flynn prosecution was that — while authoritarian liberals now insist that of course lying to the FBI is and should be a crime without any other underlying crime required — it has long been a steadfast view in liberal jurisprudence that it should not be a crime to lie to the FBI at all absent some underlying crime, so as to prevent the FBI from having the power to convert people into criminals through interrogations.
The seminal opinion on that was written by Ruth Bader Ginsburg, who now resides in heaven. Writing in dissent in the the 1997 case Brogan v. The United States, Justice Ginsburg insisted that federal law does not criminalize a false denial of a crime to the FBI — because people have the right to try to exculpate themselves rather than comply with some non-existent duty to confess crimes to agents of the state. The then-Justice Ginsburg, now a heavenly angel, also warned of “the dubious propriety of bringing felony prosecutions for bare exculpatory denials informally made to Government agents” (two other liberal justices, Stevens and Breyer, wrote separately to warn of the dangers that “an overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.”
Once the new documents were released earlier this year showing that even FBI agents had doubts that Flynn was lying and that the interrogation seemed designed to entrap him, the DOJ moved to dismiss the criminal case, infuriating law-and-order liberals who are morally outraged that a citizen would fail to obediently confess non-existent crimes to the FBI. As a result of the release of those new documents, I produced a 90-minute video program exploring all the reasons why the Flynn prosecution is such a profound abuse of power and sham.
One of the primary arguments I made there was that there should never have been an FBI interrogation of Flynn about his completely proper call with the Russian ambassador in the first place:
There was no valid reason for the FBI to have interrogated Flynn about his conversations with Kislyak in the first place. There is nothing remotely untoward or unusual — let alone criminal — about an incoming senior national security official, three weeks away from taking over, reaching out to a counterpart in a foreign government to try to tamp down tensions.
That was always the most shocking part of this abusive prosecution by a radically politicized FBI: the blatantly improper attempt to convert a normal conversation by a transition official into a form of treason.
Any doubts about how customary it is for such calls to be made by transition officials were unintentionally obliterated on Monday night by former Obama national security official Ben Rhodes, who is almost certain to occupy a high-level national security position in a Biden administration. Speaking on MSNBC — of course — Rhodes, while amicably chatting with former Bush/Cheney Communications Director turned-beloved-by-liberals-MSNBC-host Nicolle Wallace, admitted in passing that “foreign leaders are already having phone calls with Joe Biden talking about the agenda they’re going to pursue January 20,” all to ensure “as seamless a transition as possible,” adding: “the center of political gravity in this country and the world is shifting to Joe Biden.”
That Joe Biden — despite Donald Trump still being the only U.S. President — is “already having phone calls” with foreign officials to “talk about the agenda they’re going to pursue January 20” is completely normal: something we should want a President-elect and his transition team to do. That’s what made the FBI’s attempt to convert Gen. Flynn’s identical transition activities in 2016 into a crime so corrupt: just one more instance of the abuse of power that plagued the security state throughout the 2016 election and into the new administration.