The prosecution of Michael Flynn was just a subset of a pattern

Days after the U.S. Justice Department moved to dismiss all charges, with prejudice, against former National Security Advisor General Michael Flynn, former president Barack Obama sharply criticized the Justice Department’s action in a conference call with 3,000 Obama administration alumni.

“There is no precedent anyone can find for someone who has been charged with perjury just getting off scot-free,” Obama asserted. “That’s the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of the rule of law is at risk,” he said.

As an example of kol haposel b’mumo posel, the former president’s critique would be hard to beat. If there are two institutions that must be seen as above political considerations for the rule of law to be preserved, they would be the IRS and the Justice Department/FBI. Both were thoroughly compromised during the Obama presidency.

From 2009 until at least 2011, the IRS turned a jaundiced eye on applications for tax exempt status by conservative and Tea Party groups, as Lois Lerner, the official in charge of tax-exempt organizations, admitted at an American Bar Association conference in 2013. She then contrived to have the hard drive of her computer destroyed, as did six other colleagues, and to plead the Fifth before a congressional committee.

Pro-Israel groups also came in for preposterous levels of scrutiny. It took Z Street seven years and protracted litigation to secure tax-exempt status, even after the government’s legal position was ridiculed repeatedly at both the U.S. District Court and Appellate Court level. Obama Justice Department attorneys insisted the IRS was entitled to take more time with applications from groups “connected to Israel” to make sure they were not supporting terrorism.

But what the FBI did in spying on the Trump campaign and repeatedly and illegally leaking inaccurate information about the results of its spying is even worse. The prosecution of Michael Flynn was just a subset of a pattern of the national security apparatus being turned on political rivals.

As a technical matter, Georgetown Law Professor Jonathan Turley (a registered Democrat) made short work of Obama’s claims about the unprecedented nature of the DOJ’s motion to dismiss the case against Flynn. For one thing, Flynn had not been charged with perjury,that is, lying under oath. More important, there was nothing unprecedented about the government moving to drop a prosecution due to egregious prosecutorial behavior. The Obama Justice Department had itself moved — and rightly so  — to have a jury conviction of the late Senator Ted Stevens vacated because of prosecutorial abuse.

Such abuse was present in Flynn’s case in spades. He pleaded guilty to one count of making a false statement to a federal agent, after Mueller team prosecutors threatened to prosecute his son on an entirely unrelated matter. Those prosecutors never revealed to his attorneys the 302 investigators’ report drafted in the immediate aftermath of Flynn’s Jan. 24, 2017 interview with FBI agents Peter Strzok and Joe Pientka. That draft expressed the agents’ opinion that Flynn had not lied to them when he said he did not remember whether he had discussed the sanctions imposed by the Obama administration on Russia for election meddling, when he spoke to Russian ambassador to the United States Sergei Kislyak on December 29. Flynn did not deny that the subject might have been discussed.

Moreover, the FBI agents had a transcript of Flynn’s conversation with Kislyak and knew that Flynn had said nothing improper or that would in any way undercut the Obama sanctions. He had urged Kislyak to tell his government not to escalate the situation by responding to the sanctions.

The FBI breached its own protocols in interviewing Flynn. He was never informed that he was the subject of an investigation or warned against lying. Moreover, the FBI did not inform the office of the White House Counsel of the meeting, and FBI Deputy Director Andrew McCabe asked Flynn not to do so when arranging the interview. Then FBI Director James Comey later boasted that he would not have tried such a stunt or gotten away with it in a better organized administration. (President Trump had been in office for four days on January 24.)

IN EXPLAINING the Justice Department motion to drop the case against Flynn, Attorney-General William Barr told CBS that there had been no legitimate intelligence rationale for interviewing Flynn, and therefore nothing he had said, whether true or false, could have been “material.”

Already on January 4, Pientka had drafted a recommendation to close a four-month intelligence investigation of Flynn, Operation Crossfire Hurricane, for lack of any grounds for suspicion that Flynn had colluded with Russia in any way. Strzok asked him not to file the recommendation just yet because the seventh-floor brass wanted to keep the investigation going a while longer.

Bill Priestap, assistant FBI director of counterintelligence, wrote a note before the January 24 interview of Flynn, in which he asked, “What is our goal  — truth, admission, or to get him to lie so we can prosecute him or get him fired?” In short, the FBI was contemplating ousting President Trump’s closest foreign policy advisor — whom, incidentally, Obama detested and had gone so far as to warn Trump against hiring.

At a January 5 Oval Office meeting between President Obama, Comey, National Security Advisor Susan Rice, and Deputy Attorney General Sally Yates, Yates was surprised to learn that the president was fully informed about the December 29 intercept of Flynn’s conversation with Kislyak.

The president asked Comey (according to a self-serving “memorandum to myself” written by Rice, two weeks later, as she was cleaning out her office) whether there were grounds to withhold from the incoming Trump administration information on Russia — meaning the ongoing FBI investigation of collusion between the Trump campaign and Russia. Comey was noncommittal. Over the next two weeks, Yates became increasingly concerned about Comey’s shifting and weak justifications for the hiding of the investigation from the Trump team.

At that point, the FBI had already obtained one FISA authorization to conduct surveillance of US citizens claiming probable cause of collusion with Russia on the basis of the so-called Steele dossier paid for by the Clinton campaign, and was preparing another such request.

A-G Barr is right that the predicates for an ongoing investigation of Flynn were lacking. At the January 5 Oval Office meeting, Obama and Comey discussed a possible violation of the dormant 1799 Logan Act, which forbids private citizens from conducting foreign policy. The Act has not been invoked since before the Civil War and no one has ever been convicted under it. It is universally assumed by legal scholars to be unconstitutionally vague and to infringe on the First Amendment.

Talks between an incoming administration’s foreign policy team and foreign leaders and governments are routine, and could never be the basis for a Logan Act prosecution. On the other hand, former Secretary of State John Kerry has not been notably inhibited by the Act from consulting with Iran and European allies on how to thwart the Trump administration’s withdrawal from the Iran deal since he left office.

Comey also professed, at the January 5 meeting, to be concerned by the number of calls between Flynn and Kislyak, but did not mention anything untoward in the content of those conversations, though he had full transcripts of the calls.

Finally, the theory that hit home, and which was dutifully lapped up by the press, when leaked by senior administration officials: Vladimir Putin’s announcement that he would not respond to the Obama administration’s expulsion of 35 diplomats and new sanctions showed that he knew the Trump administration would drop the sanctions — it didn’t — as a payoff for Russian hacking of the Democratic National Committee.

Besides the lack of a scrap of evidence to support that theory, the idea that the Obama administration took any promise from Putin seriously is laughable. But give Putin credit, the man is deviously clever, and he knew that his words would be used to further whip up collusion frenzy and weaken the incoming president.

Next week we’ll take up the shame of the media in breathlessly reporting every half-baked leak and its ongoing lack of contrition.

Originally featured in Mishpacha, Issue 669. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com