Former DOJ official Mary McCord has an op-ed in the New York Times objecting to how the DOJ used an interview with her in its Flynn filing. She argues that the filing twists her quotes to justify dropping the case. But her piece isn’t much of a defense of the FBI.
Here is the crux of it:
The potential for blackmail of Mr. Flynn by the Russians is what the former Justice Department leadership, including me, thought needed to be conveyed to the incoming White House. After all, Mr. Flynn was set to become the national security adviser, and it was untenable that Russia — which the intelligence community had just assessed had sought to interfere in the U.S. presidential election — might have leverage over him.
This is where the F.B.I. disagreed with the Justice Department’s preferred approach. The F.B.I. wasn’t ready to reveal this information to the incoming administration right away, preferring to keep investigating, not only as part of its counterintelligence investigation but also possibly as a criminal investigation. Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low (the act prohibits unauthorized communications with foreign governments to influence their conduct in relation to disputes with the United States), we certainly agreed that there was a counterintelligence threat.
That’s exactly why we wanted to alert the incoming administration. Ultimately, after our dispute over such notification continued through the inauguration and into the start of the Trump administration, the F.B.I. — without consulting the Justice Department — arranged to interview Mr. Flynn. By the time Justice Department leadership found out, agents were en route to the interview in Mr. Flynn’s office.
The account of my July 2017 interview describes my department’s frustration with the F.B.I.’s conduct, sometimes using colorful adjectives like “flabbergasted” to describe our reactions. We weren’t necessarily opposed to an interview — our focus had been on notification — but any such interview should have been coordinated with the Justice Department. There were protocols for engaging with White House officials and protocols for interviews, and this was, of course, a sensitive situation. We objected to the rogueness of the decision by the F.B.I. director, Jim Comey, made without notice or opportunity to weigh in.
In other words, the DOJ wanted to warn the White House that it believed Flynn had lied about the call, but instead the FBI ignored all protocols to interview him — in part based on a lunatic theory that he had violated the Logan Act, a potential prosecution that McCord charitably describes as having a “quite low” chance of success.
As for the counterintelligence threat, if an incoming national-security advisor working for a president who doesn’t want to have a spiraling sanctions fight with Russia at the outset of his administration talks to the Russian ambassador about not having a spiraling sanctions fight, most people would not conclude, “Dear God, he must be a Russian spy!” (Besides which, the substance of his conversation with the ambassador was no mystery — the FBI had the transcript.)
The idea that Flynn was at risk of getting blackmailed by the Russians is also far-fetched. It’s not as though the Russians had information he was having an affair, and the contents of the call leaked quickly. If this was the real fear — and even Comey said in congressional testimony it was “a reach” — DOJ could have simply given the aforementioned warning to the White House.
Doing an ambush interview with Flynn, and then squeezing him into a plea deal almost a year later when it wasn’t even clear he lied in the FBI interview, was not a proportionate or defensible response. “Rogueness” indeed.
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