Old and busted: The case against Michael Flynn. New, improved hotness: The case against the FBI — for political corruption. US Attorney Jeffrey Jensen turned over evidence to the court dealing with Flynn’s demands to withdraw his guilty plea, notes that call into question what motives the FBI had in approaching Flynn at all. The evidence, collected by Jensen in an internal Department of Justice probe of the FBI, shows agents discussing their goals, which include setting up a perjury trap to “prosecute him or get him fired”:
A federal judge late Wednesday unsealed a new set of documents provided to lawyers for Michael Flynn, the former Trump national security adviser who is seeking to withdraw his guilty plea, that could provide them with new ammunition to attack the FBI’s handling of the case.
One of the pages is a handwritten note, apparently from an FBI official, about the bureau’s interview with Flynn. “What’s our goal? Truth/Admission or get him to lie, so we can prosecute him or get him fired?” Elsewhere, it says, “we have a case on Flynn + Russians.”
It is unclear who wrote the note or whether it was ever sent to anyone else. The document was turned over to Flynn’s lawyers by Jeffrey Jensen, a U.S. attorney in Missouri appointed by Attorney General William Barr to examine the Flynn investigation.
CNN notes, with some significant level of understatement, that this might have a detrimental impact on Flynn’s prosecution. Ya think?
The documents turned over to Flynn’s lawyers are the first public results of a reexamination requested by Attorney General William Barr, and they represent a more complicated position for the department than what it’s previously said in court.
They also provide an unusual assist to the Flynn defense team that could serve to undermine the department’s own case, one of the major accomplishments of former special counsel Robert Mueller’s investigation.
The point is that this shouldn’t have been “unusual” at all. Flynn was entitled to see those notes as discovery in his prosecution. Flynn argued before his plea deal, and has argued since as well, that the FBI entrapped him and that the conversation never was material to a legitimate investigation, which is a condition necessary for an obstruction prosecution. These notes certainly imply that the FBI didn’t actually think his contact with Sergei Kislyak was actionable on its own, nor that they planned to seriously pursue a Logan Act violation, which also gets a mention in the notes. No one has ever been convicted under the Logan Act and the US hasn’t even attempted such a prosecution in decades; it’s a joke that Congress just hasn’t repealed. The Logan Act was never meant to apply to a member of a legitimate presidential transition team either, which is what Flynn was at the time of his conversation with Kislyak.
The FBI needed a perjury trap to push Flynn out, as these notes show, and that is the only motive that makes sense for their actions. The fact that the FBI and DoJ withheld these until the Jensen probe pried them loose is serious prosecutorial misconduct; they should have been disclosed to the court, at the very least. One might think that Judge Emmet Sullivan might feel a little anger over how he got manipulated by the prosecution in this case.
Jonathan Turley calls the notes “a chilling blueprint” for an “unconstitutional, manufactured” prosecution. Dismissal is the only justice left to remedy this railroad job, Turley argues, but notes that the judge in this case has dirty hands as well:
In the meantime, various FBI figures lied and acted in arguably criminal or unethical ways — but all escaped without a charge. McCabe played a supervisory role in the Flynn prosecution; he later was found by the Justice Department inspector general to have lied to investigators, repeatedly. While his case was referred for criminal charges, McCabe was fired but never charged. Strzok also was fired for his misconduct.
Comey intentionally leaked FBI material to the press — including potentially classified information — but was never charged. Another FBI agent responsible for the Russia investigation’s secret warrants falsified evidence to maintain the investigation; he still is not indicted. The disconnect of these cases with the treatment of Flynn is not just galling, it is grotesque.
Even the federal judge in the case has added to this highly disturbing record. When Flynn appeared before District Judge Emmet Sullivan for sentencing, Sullivan launched into him and said he could be charged with treason and with working as an unregistered agent on behalf of Turkey. Dramatically pointing to the flag behind him, Sullivan declared: “You were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. That undermines everything this flag over here stands for. Arguably, you sold your country out.”
Flynn was never charged with treason or with being a foreign agent. However, when Sullivan menacingly asked if he wanted a sentence then and there, Flynn wisely passed. It is a record that truly shocks the conscience. While rare, it is still possible for the district court to right this wrong since Flynn has not been sentenced.
The release of the FBI notes to the public might show that the court is aware of how it got played by Robert Mueller’s prosecutors and the FBI. If so, perhaps Sullivan has had a change of heart. Right now, though, his own intemperate and flat-out gullible behavior in this episode is not much more glorious than the FBI’s and DoJ’s. The safest/least courageous option is to allow Flynn to vacate the plea and throw it back to the DoJ as to whether they want to proceed with a trial. And if that doesn’t happen, Donald Trump is likely ready to issue a pardon immediately.
We still haven’t quite gotten to the core question, though … which is why the FBI wanted to target Flynn in the first place. We certainly know who to ask:
#DrainTheSwamp– @Comey: I sent them something I probably wouldn't have done and maybe gotten away with in a more organized investigation… if the FBI wanted to send agents into the White House itself to interview a senior official you would work through the White House counsel. pic.twitter.com/mrZcNMpVy4
— Lou Dobbs (@LouDobbs) December 15, 2018
Strzok wasn’t the only top FBI official who apparently bent the rules in targeting Flynn. Comey admitted in 2018 that the fateful Flynn interview at the White House didn’t follow protocol, and came at his direction. He said it was not “something I probably wouldn’t have done or maybe gotten away with in a more… organized administration.”
Looks like Comey’s got some explaining to do still.