According to the U.S. Justice Department, continuing to prosecute Michael Flynn “would not serve the interests of justice.” The way he was treated by FBI agents and Justice Department prosecutors—and even his own lawyers—should scare every American.
Fortunately, the Department of Justice, under the leadership of Attorney General William Barr, took a first step in righting this wrong by filing a motion to dismiss the charges against Flynn—charges that now look like they never should have been brought in the first place.
By now, the backstory may be familiar.
A three-star general who clashed with the Obama administration as head of the Defense Intelligence Agency, Flynn retired from the military. He then started his own consulting firm and began advising then-candidate Donald Trump.
After the election, Flynn helped with the Trump transition team and, ultimately, was appointed as national security adviser to the new president.
What did the FBI question him about? A December 2016 conversation Flynn had with Russian Ambassador Sergey Kislyak. The conversation was perfectly legitimate, as Flynn was the incoming national security adviser for the president-elect.
The exact legal basis for why the FBI wanted to talk to Flynn has always been murky and the grounds look more dubious now than ever.
Sally Yates, the former deputy attorney general in the Obama administration, told Congress it was because Flynn had supposedly violated the Logan Act by holding that conversation.
The Logan Act (18 U.S.C. §953) is a more than 200-year-old criminal statute that purports to ban Americans from engaging in unauthorized negotiations with officials from a foreign government that is having a dispute with the United States.
There have been only two attempts to prosecute anyone under the law, the last coming in 1852. Neither attempt was successful.
Why had there been no prosecutions after that? Because virtually all legal scholars on both sides of the political aisle agree that it is “flagrantly unconstitutional.”
Even if the act could be applied to many private individuals, it makes no sense to apply it to an appointee of an incoming administration whose duties include speaking with representatives of foreign governments. In fact, the motion to dismiss admits that “the Logan Act would be difficult to prosecute.”
This is an important consideration because it means that, contrary to Yates’ testimony, the FBI had no valid legal basis for interviewing Flynn.
Moreover, the meeting request was inappropriate. Then-Deputy FBI Director Andrew McCabe simply called Flynn and asked whether some FBI agents could meet with him, telling Flynn “it was no big deal.” (There was no mention of Kislyak.)
The request also violated standard protocol, as an FBI request to interview someone like Flynn should have been routed through the White House Counsel’s Office. The FBI has admitted that it knew that but chose to contact Flynn directly anyway.
What makes this even worse is the release of handwritten notes believed to be those of the FBI’s former head of counterintelligence, Bill Priestap. The notes describe a meeting with FBI Director James Comey and McCabe in which they discussed their goals in having agents interview Flynn.
Keep in mind that the FBI is a law enforcement agency, not a policy arm of the executive branch. Yet Priestap’s notes show that he questioned whether their true objective was to get the truth or to get Flynn to lie in order to “prosecute him or get him fired.”
The FBI’s job is to investigate possible violations of federal law, not to interfere in the transition of power in the executive branch in order to get an adviser “fired.” George Washington University Law professor Jonathan Turley calls this misuse of FBI authority “chilling.”
Based on what we now know (which could change as more information becomes available), these documents show that Flynn was treated unfairly—perhaps unethically—by prosecutors and even his own lawyers.
Federal prosecutors have a constitutional and ethical obligation to turn over all potentially exculpatory evidence to a defendant and his counsel. This constitutional rule derives from the Supreme Court’s decision in Brady v. Maryland (1963).
As a corollary to this “Brady Rule,” prosecutors are also required to turn over any impeachment information—information that could be used to attack the bias or credibility of a witness. This “Giglio Rule” derives from the Supreme Court’s decision in Giglio v. United States (1972).
Every federal prosecutor in the Department of Justice receives annual training on their obligations and responsibilities under these rules. They’re a big deal.
As part of this training, prosecutors typically review the department’s own policies that recognize “Government disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial.”
These same policies go on to say that prosecutors must turn over information beyond what is constitutionally required. “Recognizing that it is sometimes difficult to assess the materiality of evidence before trial, prosecutors generally must take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence.”
Documents released by the Justice Department suggest that prosecutors from the Special Counsel’s Office may have run afoul of these rules. Even if they didn’t technically violate them, they certainly violated their intent.
Here’s how that happened: Flynn pleaded guilty to a single violation of 18 U.S.C. §?1001—essentially that he knowingly and willfully lied to FBI agents about whether he had earlier discussed sanctions with the Russian ambassador. In other words, he must have intended to mislead them and his false statements must have been material to their investigation.
In fact, in his plea agreement and statement of the offense, the DOJ lawyers explicitly agreed that “Flynn’s false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals associated with the [Trump] Campaign and Russia’s efforts to interfere with the 2016 presidential election.” No mention of the Logan Act.
As should be clear, the factual predicate for the FBI’s investigation of Flynn was incredibly weak.
As laid out in a report by the Justice Department’s inspector general, it is highly questionable whether there ever was a valid factual predicate to initiate an investigation into alleged collusion between the Russian government and Trump campaign. Much of the information that the FBI received was unverified and from a source who was being paid by the campaign of Trump’s political opponent.
Moreover, based on what we now know, the FBI found no derogatory information that would cast specific suspicion on Flynn in the national security databases it checked as part of that investigation.
More important to the materiality determination is the timeline revealed in this most recent release of documents from the Justice Department.
According to the charging document, Flynn pleaded guilty to willfully and knowingly making the false statements during his Jan. 24, 2017, voluntary interview with the FBI.
Based on the latest release of documents, the original FBI agents assigned to the matter had decided almost three weeks beforehand—on Jan. 4—to close its file on Flynn because he “was no longer a viable candidate as part of the larger Crossfire Hurricane [Russian Interference] case.”
What changed? FBI Special Agent Peter Strzok, who the FBI later fired for his misconduct and bias against Trump during the Russia investigation, intervened and asked that the case not be closed.
It has been widely reported that, immediately after that interview, the interviewing agents—including Strzok—told their superiors that they didn’t think Flynn had lied to them.
This is not dispositive one way or the other; we have all been fooled at one time or another by very good liars. But such information is certainly exculpatory and likely should have been disclosed to Flynn and his defense team.
If any misstatements by Flynn during his interview truly were unintentional, then why would Flynn plead guilty?
One possible answer is that he faced other legal issues and sought to avoid being prosecuted for those other actions by pleading guilty to this charge.
Another, more troubling possibility, is that Flynn agreed to plead guilty so that his son wouldn’t be prosecuted for a felony offense involving a violation of the Foreign Agents Registration Act for work done long before Flynn’s involvement with the Trump campaign.
That’s more understandable.
Threatening to charge Flynn’s son unless Flynn pleads guilty might be unseemly; it’s not per se illegal or unethical. That’s a conversation for another day. But what’s troubling about this particular agreement, if it exists, is that it wasn’t disclosed—to the court or to the future parties against whom Flynn would testify if he cooperated with prosecutors.
The plea agreement signed by Flynn, his lawyers, and the prosecutors explicitly states:
No agreements, promises, understandings, or representations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements, promises, understandings, or representations be made unless committed to writing and signed by [Flynn], defense counsel, and the Special Counsel’s Office.
But there are documents from Flynn’s former lawyers stating that “We have a lawyers’ unofficial understanding that they are unlikely to charge Junior in light of the Cooperation Agreement.”
They went on to say in other internal emails that “The government took pains not to give a promise to MTF regarding Michael Jr., so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against whom MTF may one day testify.”
If true, prosecutors were being too cute by half.
The only reason we know about this potential side deal is because Flynn’s new lawyers filed these excerpts after the old firm turned over 6,800 new documents it had inadvertently failed to give Flynn’s new counsel.
Particularly problematic for Flynn’s former lawyers was the Justice Department’s threat to prosecute Flynn and his son for FARA violations unless Flynn agreed to plead guilty to lying to federal agents.
Why was this problematic for the former lawyers? They were the lawyers who advised Flynn and his son about what needed to be disclosed to the government in the FARA filing.
If the government was truly concerned about, and was considering filing criminal charges related to, the FARA filings, then it certainly would have been examining the conduct of the lawyers who prepared those filings, the very same lawyers who were representing Flynn in his criminal case.
Is it reasonable to believe that the Covington lawyers, who themselves were at risk of potential malpractice claims, bad publicity, or worse related to this uncharged conduct, should have been allowed to continue advising Flynn about how to respond to the charges that were pending against him, especially when they must have known that everything could be quickly and quietly resolved if he simply pleads guilty to one count of lying to federal agents?
It’s a lot to ask of anyone, and it certainly raises serious questions about whether a conflict of interest—waivable or not—existed between Flynn and his original lawyers.
Regardless, Flynn claims that his lawyers did not discuss any of this. But he was certainly entitled to know this before deciding whether to stick with his original lawyers or to seek advice, as he ultimately did, perhaps too late, from conflict-free counsel.
Such allegations are shocking to hear about a prominent, well-respected, white-shoe, Washington, D.C., firm.
They’re troubling, as are the allegations that Flynn’s former lawyers spurned offers of congressional immunity for Flynn in exchange for his testimony without informing Flynn.
If true, then that would be a textbook example of ineffective assistance of counsel and a breach of ethical duties. Lawyers are duty-bound to discuss all plea and immunity offers with their clients—and common sense dictates it. It is the client, not the lawyer, who must make the final decision on any such offers.
The perception is that Flynn was treated unfairly during the investigation and his prosecution—maybe even railroaded during the process.
The DOJ now recognizes this and seeks to dismiss its charges against Flynn because “[u]nder these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt [which prosecutors must believe they can do even when a defendant pleads guilty], how false statements are ‘material’ to an investigation that—as explained above—seems to have been undertaken only to elicit [Flynn’s] false statements and thereby criminalize Mr. Flynn.”
While acknowledging that Flynn had previously pleaded guilty, the government adds that “he did so without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him.” The government added that it has no “interest in penalizing a defendant for a crime that it is not satisfied occurred.”
One thing is certain, Michael Flynn—and the American people—expect and deserve more from our system of justice.
We must now wait for the judge to rule on the government’s motion to dismiss its charges against Flynn. Given the admissions the Justice Department makes in its motion, it would be a miscarriage of justice if the judge refused to grant the dismissal.
In any event, we would do well to remember the words of then-Attorney General Robert Jackson, who in a speech to U.S. attorneys nearly 80 years ago could have been warning us today against prosecutions such Flynn’s:
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
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