Whatever your thoughts are about Lt. Gen. Michael Flynn, the slow unraveling of his case holds some deeper lessons than simply “he never should have been charged.”
Notes belatedly turned over to Flynn’s aggressive attorney include some telling nuggets of how Jim Comey’s FBI conducted itself. “What is our goal,” the notes read, “Truth/Admission or to get him to lie, so we can prosecute him or get him fired.”
How about an unstated goal of simply investigating and going where the evidence leads? How about a goal that does not reflect a heads-I-win, tails-you-lose outcome on prosecution?
Add in an unannounced ambush interview and even FBI shenanigans (at Flynn’s potential expense) in trying to engage him during a defensive briefing, and it becomes clear the general, innocent or not, never had a chance of avoiding prosecution under Comey’s watchful eye.
The U.S. Code includes a crime, in Title 18 Section 1001, for knowingly making a false statement to a federal law enforcement officer. The code says nothing about how federal agents and prosecutors should use this particular law.
Context is important here, too. Former FBI Director Comey had publicly announced that his agency would not “waste its time with 1001 prosecutions” during the Hillary Clinton email probe. This, notwithstanding agents discussing the obviously false and material misstatements of one of Clinton’s IT minions and how his lies and eventual admission of lying would make an airtight case.
However, with the Russia-Trump investigation, false statement prosecutions were literally the coin of the realm.
While the FBI goal note will probably steal the headlines, there are other comments that damningly reflect the politicization of FBI investigations.
Recall that Comey’s non-prosecution announcement of Clinton included his (unwarranted) legal assessment that the statute under which she could be prosecuted was simply a dusty old throwaway in the code –“nobody ever uses it,” he proclaimed in filling the vacuum formed by Attorney General Loretta Lynch’s non-recusing recusal.
Recall that Comey’s non-prosecution announcement of Clinton included his (unwarranted) legal assessment that the statute under which she could be prosecuted was simply a dusty old throwaway in the code –“nobody ever uses it,” he proclaimed in filling the vacuum formed by Attorney General Loretta Lynch’s non-recusing recusal.
Yet in the disclosed Flynn interview preparation notes, the agent refers to the Logan Act as their basis of pursuing the general. Wikipedia, at least, says only two people have ever been charged under the Logan Act – in 1802 and 1852—and neither was convicted.
“If we’re seen as playing games, the [White House] will be furious,” say these notes. No word on whether the anger would stem from maliciously targeting an innocent man or whether it’s purely the “seen as” component that worried the politicians.
But what a telling thing to include in these preparation notes — discussing the perception of playing games all but acknowledges that this is exactly what the FBI agents were capable of doing in this investigation.
Add in the well-publicized information about Comey, Deputy Director Andrew McCabe, Agent Peter Strzok and FBI attorney Lisa Page, and we see how lasting harm has come to an otherwise honorable institution, the FBI because people at the top decided that rules of fair play simply did not apply to them.
My guess is that the FBI believed Flynn was a bad guy, and that even if they could not prove the most serious allegations, they would take an “Al Capone on tax evasion” approach – meaning, whatever works to get to him is fair. But what if they are wrong to think he’s Al Capone?
They were so supremely confident in their judgment of Flynn, or at least the need to bring him down, that they never paused to think about how wrong it is to marry political outlook with investigative pursuits. Lying, usurping the role of prosecutors, texting over government-issued phones about “insurance plans” at Trump’s expense, and taking an ends-justify-the-means approach to law enforcement have hurt the FBI seriously, even though it was only a cabal of politicized narcissists who did the damage.
In the short run, many things have happened and will happen in connection with these false statement prosecutions.
Comey resigned in disgrace (although he alone apparently does not understand that fact). McCabe celebrated his dodging of an indictment for, well, 1001 violations. Strzok and Page were professionally sidelined. And perhaps Judge Emmet Sullivan will ultimately blow up Flynn’s guilty plea.
The long run, however, is less clear.
Hopefully, Director Chris Wray is charting a new course, where FBI leaders play by the same rules that an agent in Wichita follows.
The scary part of this story remains, however. If prosecutors and agents are to have prosecutorial discretion, we need them to be honorable and fair — one set of rules, pursued by people dedicated to truth, not looking for high-profile “skins” and not acting out of political animus.
The alternative, as we seem to be seeing in Flynn’s case, reeks of unfairness toward individuals and it damages an important cornerstone of our civilization, the never-ending pursuit of fairness in our criminal justice system.
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