UPDATED: Russia Hysteria, False Statements, And The Michael Flynn Affair.

Flynn's Rise

Where to start with the Michael Flynn saga? We could start with Flynn's outspokenness regarding the origins of ISIS that so angered the Obama administration, or perhaps with his interference in Deputy Director Andrew McCabe's jihad against former FBI agent Robyn Gritz, but presidential candidate Donald Trump's revisionist ideas about relations with Russia--and Trump's criticism of the sacred cow of sanctions--perhaps gets to the heart of the matter more quickly.

In late March 2016, steaming toward the Republican nomination ... Donald J. Trump made a lengthy case for giving President Vladimir V. Putin what he wanted most: relief from American-led sanctions for his annexation of Crimea.

... from the start of his campaign in mid-2015, several months before prosecutors say his company began considering a deal in Russia, Mr. Trump departed from the normal Republican hard line about Russia, attacking President Barack Obama’s approach because it alienated a potential partner.

“I believe I would get along very nicely with Putin,” Mr. Trump said soon after announcing his run for the presidency. “I don’t think you’d need the sanctions.”

This kind of talk set off alarm bells in the globalist establishment of the Deep State. Opposition research went into high gear. By July, 2016, the "sources" for ex-MI6 spook Christopher Steele's "dossier" were telling him that it was all a done deal: "the Russians" had done the DNC "hack" and had already entered into a quid pro quo with Trump: Putin would pass the emails to Wikileaks and Wikileaks would serve as a cutout for the release of the emails that would power Trump to the presidency. In exchange for sanctions relief. The Russia Hoax was up and running, and no one in the establishment media or the political establishment in Washington, DC, was questioning the official version of the "hack" nor the provenance of the rumors that began to circulate about Trump and Russia.

Where was Flynn in all this? Flynn was in retirement, having in 2014 been "forced out of the DIA after clashing with superiors over his allegedly chaotic management style and vision for the agency." He and his son started up a consulting firm, in which Flynn displayed a rather promiscuous penchant for changing his views depending on his clients' requirements. He also displayed a cavalier attitude toward reporting requirements regarding his status as a foreign agent under FARA as well as DoD and DoS requirements for retired military officers. Clients included Russian and Turkish entities.


Nevertheless, Flynn's outspoken criticism of the some Obama administration policies had attracted the attention of Republicans who were seeking the GOP nomination for president, despite the fact that Flynn was a registered Democrat. Flynn went with the winner, Trump, and threw himself wholeheartedly into the Trump campaign. He was even then being touted as a candidate for a high position in any Trump administration. Apparently Trump was never informed by the Obama administration that, starting in July, 2016, Flynn had become the subject in an FBI counterintelligence Full Investigation and one of four subjects in the Crossfire Hurricane enterprise CI investigation--although his security clearances were never revoked.

In this respect an interesting event took place two days after Trump won the election--an event that has been recounted in differing versions by the Obama and Trump camps, although the basic details appear to be confirmed by both camps. Two days after the election Trump met with Obama. According to Politico,

Former President Barack Obama warned then-President-elect Donald Trump about Michael Flynn during their Oval Office meeting two days after the election, current and former administration officials confirmed. 

Obama and his staff felt Flynn was problematic and prone to what they thought of as crazy ideas, and had fired him from his job as head of the Defense Intelligence Agency. Obama relayed that to Trump during the 90 minutes they spent together. 

Obama hadn’t planned to spend time in the meeting criticizing Flynn, but it came up as part of the conversation when the topic of personnel came up, according to a former Obama administration official. Accounts differ on how extensive he got, with one person familiar with the meeting saying that Obama forcefully told Trump to steer clear of Flynn. 

This seemed to momentarily give Trump pause, the former Obama administration official said. 

Some on the transition team, including New Jersey Gov. Chris Christie, lobbied against hiring Flynn, said the person familiar with the meeting. But Trump, always one to value loyalty, decided to stick with the man who had campaigned for him so hard.

And that set the stage for what followed. Less than a month after Trump's inauguration, on February 13, 2017, Flynn was fired from his position as National Security Director. On December 1, 2017, he entered into a plea agreement with Special Counsel Robert Mueller, pleading guilty to "willfully and knowingly" making "false, fictitious and fraudulent statements" to the FBI regarding conversations with Russia's ambassador to the US. He had unsuccessfully attempted to make a deal with either the FBI or the Senate and House Intelligence committees for his testimony concerning the Russia probe in exchange for immunity from criminal prosecution.

Flynn's Fall

There's no doubt that when Flynn took the post of National Security Director he had a number of serious enemies. The foreign policy establishment and intelligence community had it in for him due to his tenure at DIA, where he had written a report that placed blame for the rise of ISIS on the US. Obama supporters in the White House and DoJ shared that hostility. At the FBI, Deputy Director Andrew McCabe had a particular and very personal axe to grind against Flynn because Flynn had vigorously intervened on behalf of Robyn Gritz, a former FBI employee who was suing McCabe for sexual discrimination. Flynn's very enthusiastic participation in the Trump campaign had also enraged Hillary Clinton supporters. And, he was still the subject of a full counterintelligence investigation arising from the FBI's own cooperation with the Clinton campaign's opposition research firm, Fusion GPS. The very core of that investigation was the claim of a quid pro quo: the release of DNC emails in exchange for Trump's action on sanctions against Russia. The chain of events that led to Flynn's firing began almost immediately after Christmas, 2016.

On December 28, 2016, then President Obama ordered tough new sanctions against Russia and expelled 35 Russian diplomats from the US, claiming that Russia had "interfere[d]" in the 2016 elections. Although Obama made no accusations against Trump in his statement, the action was widely taken to indicate that the US actually had proof that Russia had acted to help Trump's election--thus casting doubt on the very legitimacy of the Trump presidency. This worked to further inflame the anti-Russian and anti-Trump hysteria that was being fanned by the MSM, mere weeks before the Trump inauguration--a provocative move by an outgoing president.

In response, on December 29, 2016, after consulting with high Trump transition officials, Flynn contacted the Russian ambassador with a request that Russia not reciprocate, to prevent an escalation of tensions. Putin publicly agreed and Trump hailed Putin's restraint, but virtually immediately

Obama advisers grew suspicious that perhaps there had been a secret deal between the incoming team and Moscow, which could violate the rarely enforced, two-century-old Logan Act barring private citizens from negotiating with foreign powers in disputes with the United States.

In fact, the NYT's characterization of the Logan Act as "rarely enforced" is symptomatic of the false reporting that was rife. An accurate characterization would have been: the never enforced and constitutionally dubious Logan Act. In any event, it would appear that in addition to "Obama advisers" FBI Director James Comey and acting Attorney General Sally Yates were also discussing whether there was any law that could be applied against Flynn. The reasons for Yates' reluctance to embrace such a theory are easily grasped:

As with members of Congress, the foregoing factors might counsel hesitancy to apply the Logan Act to the activities of presidential transition teams after a presidential election. The purpose of the transition is to smooth the way for the new administration, and in the diplomatic field that seems necessarily to involve speaking with foreign governments about matters of dispute. Indeed, this seems a vital activity to reduce uncertainty during the transition. It is likely that members of transitions teams of other incoming Presidents have routinely discussed pending disputes with foreign officials without raising Logan Act concerns. The Act’s goal of preventing private diplomacy is far removed from the context of presidential transitions, and there were no quasi-official transition teams at the time the Act was passed. ... Moreover, one might see designated members of a transition team have a sort of official status, having been selected by the President-elect, who in turn has a quasi-official status as a result of the election. Indeed, the presidential transition process is formally established by law: the Presidential Transition Act of 1963, as amended, provides funding, facilities and access to government services for the transition team. ...

However, at the FBI a plan was hatched. Comey and McCabe came up with the idea, in violation of all established procedures, of sending two agents to interview Flynn regarding his contacts with the Russian ambassador. McCabe called ahead to assure the gullible Flynn that there was no need for the presence of White House lawyers. As Comey has recently stated: “I don’t think he knew. I know we didn’t tell him”, i.e., the real purpose of the agents' visit. The plan that was adopted explicitly relied on subterfuge. The agents were instructed to develop a rapport with Flynn, not to challenge any statement he might make that appeared to be inaccurate. And in fact the agents reported back that Flynn appeared "truthful" and "unguarded," apparently believing this FBI contact was a routine liaison and training contact.

The first question that arises with regard to this approach is obvious: what reason did the FBI have to interview Flynn? Presumably they could have asked him about any of the matters for which he was being investigated--but they didn't. If Flynn were being interviewed because of a criminal violation on his part--the only valid reason for interviewing him in the circumstances--then the agents should have pursued a line of questioning that tracked the elements of some criminal offense. Instead, they proceeded with a preset strategy that they hoped would elicit statements--any statements--that could be interpreted as false. Not denials of facts that were elements of a criminal offense, necessarily, but statements that could be interpreted as false and as obstructing their investigation of ... of what? The Logan Act? A law that is widely regarded as unconstitutional, that has been used twice in US history, the last time around 1852, and never successfully? If not the Logan Act, then what? Clearly there was no hope of a Logan Act conviction because that's not how the interview was conducted.

The answer seems clear: the interview was designed as a perjury trap. This appears to have been confirmed by McCabe himself, during his testimony to the House. The Hill's account of the report provides interesting details:

“Although Deputy Director McCabe acknowledged that ‘the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case,’ General Flynn pleaded guilty to one count of making false statements on December 1, 2017,” a newly unredacted part of the report reads. 

The document also says top government officials had conflicting reports about why the two agents were interviewing Flynn in the first place. 

The committee “received conflicting testimony” from Comey, McCabe, then-Deputy Attorney General Sally Yates and Principal Deputy Assistant Attorney General Mary McCord about the "primary purpose" of the interview, the report states. 

The report claims that these top FBI and Justice Department officials had different answers regarding whether the agents were “investigating misleading statements to the Vice President, which the Vice President echoed publicly about the content of this calls; a possible violation of the Logan Act; or a desire top obtain more information as part of the counterintelligence investigation into General Flynn.”

Let's begin at the top: "not a great beginning of a false statement case." In other words, the visit of the agents to Flynn's office was the beginning of a false statement case. But the FBI is not authorized to go around testing the veracity of random citizens: they must have an official reason. Consider this hypothetical.

Suppose you're an FBI agent. At lunch one day you leave your office and go around the corner to, let's say, a hardware store. The proprietor knows you to be an FBI agent. You ask for his recommendation for some article and he responds, praising a particular product with inflated claims. You purchase it but are soon dissatisfied, believing that the proprietor deceived you. Did the proprietor "lie to the FBI?" Should you, the agent, open an investigation against the proprietor for making a "false statement to the FBI?" Clearly not. And why not? Because you didn't purchase the product as part of your official duties, even though you had your badge and your gun and were vigilant for any criminal activity as you walked to the store.

The two agents who interviewed Flynn certainly presented themselves as being on official duty, pursuing an official task--but where they really? Were they just testing Flynn, without pursuing a line of questioning that pertained to any suspected crime? McCabe's response to the House and his instructions to the agents certainly suggests that there were no such grounds for interviewing Flynn. The interview was a pretext of acting in the course of official duty; it was a setup, not an investigation.

The testimony of the other officials confirms this. Their inability to offer consistent rationales indicates that, even months later, they were unsure of any justification. Reports of Yates' anger at Comey's precipitous decision to set a perjury trap for Flynn make perfect sense in that light: a competent attorney for Flynn would have attacked the case from this standpoint. What were the conflicting rationales that they offered?

• Misleading statements made by Flynn to the Vice President, Mike Pence. That was wrong of Flynn, no doubt, and ended up being grounds for Flynn's dismissal, but it's notable that they were not used as the basis for any indictment. After all, would we really want to outlaw all politics, all bureaucratic infighting and ass covering? Where would be the end of it?
• The Logan Act. Again, there's a good reason why that wasn't pursued. The same reason that other public figures who, for example, travel to foreign countries to plead for the release of captives are not prosecuted. Not to mention constitutional problems.
• The ongoing counterintelligence investigation into Flynn. In that case, why did the agents not question Flynn on that subject?

No, clearly the rationales offered to House were no more than CYA excuses, made necessary by the FBI's ill considered action. Of course Flynn behaved badly--as he had done with regard to his foreign agent consultancy. Implausible as it may seem, Obama attempted to do Trump a real favor, perhaps out of sheer dislike for Flynn. Whatever the reason, it's unfortunate that Trump's sense of loyalty prevented him from accepting the advice.

At this point there's really no need to go into the dishonest prosecution of Flynn, with its hiding of exculpatory evidence and even, it now appears, destruction of evidence in the form of agent Pientka's interview notes. My view is that Judge Sullivan has been placed in a position in which he pretty much must take action against Team Mueller's glaring abuses, despite the flawed defendant before him. The easy course would seem to be dismissal of the case, but I'm no judge. Perhaps he'll come up with some alternative.

UPDATE

Excerpt below from the Daily Caller, back in 2/2018. The description of this meeting fits perfectly in the time frame in which the NYT says "Obama advisers" were discussing the Logan Act. I postulated above that those "advisers" would have included Yates and Comey:

FBI Director James Comey held a secret Oval Office meeting with President Barack Obama two weeks before Trump’s inauguration and may have deliberately misled Congress about it, according to an email sent by National Security Advisor Susan Rice that GOP Sens. Chuck Grassley and Lindsey Graham partially unclassified. 

The meeting — which Comey never previously disclosed to Congress — occurred in the White House on Jan. 5, 2017. It included Obama, Vice President Joe Biden, Rice deputy Attorney General Sally Yates, and Comey. The topic of the meeting was potential Russian interference in the 2016 presidential election. 

By failing to inform the Senate Select Committee on Intelligence about the meeting in his June 8, 2017, testimony, Comey may have deliberately and intentionally misled Congress about his interactions with the former president, especially a meeting so close to Trump entering the White House. 

“President Obama had a brief follow-on conversation with FBI Director Comey and Deputy Attorney General Sally Yates in the Oval Office,” Rice wrote in an email written the day before the inauguration.

NB: This would have been the same meeting at which, according to Susan Rice's famous "email to self", Obama instructed Yates and Comey to do everything "by the book." Woops! Whose book was that again? Comey's apparently, and he has a track record worth remembering: The Case of the Missing Crime. That meeting, viewed within the timeline context of "Obama advisers" speculating about the use of the moribund Logan Act, is ... fascinating.

APPENDIX RE THE FALSE STATEMENT STATUTE, 18 USC 1001

During most of my working years "1001" was NEVER used the way it is now. What's going on now is, IMO, disgraceful. Jonathan Turley explains.

Excerpt from If Andrew McCabe lied, could he be charged like Michael Flynn? By Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University.

... An alleged false or misleading statement by McCabe could rekindle questions about how the Justice Department addresses alleged false statements within its own ranks.

... However, if history is any guide, McCabe is unlikely to find himself facing a charge.
It is a perceived luxury enjoyed by federal prosecutors that routinely charge others with even borderline false statements but rarely face such charges themselves. While most prosecutors adhere to the highest ethical standards, a minority of Justice Department lawyers have been accused of false or misleading statements in federal cases. However, they are virtually never charged with false statements by their colleagues. There is no such reluctance in using this easily charged crime against targets outside of the department.

Consider the case of former National Security Adviser Michael Flynn. He now faces a prison stint after pleading guilty to a single false statement about a meeting with Russian diplomats during the Trump presidential transition period. While Flynn did not deny the meeting, which was entirely legal, he denied discussing sanctions with the Russians. Mueller charged him with lying or misleading federal investigators under 18 U.S.C. 1001. He did so even though investigators working under former FBI Director James Comey reportedly had concluded that Flynn did not intend to lie and should not be charged criminally for the omission.

... It is common for people to omit or color facts in interviews on events that may have occurred weeks or months or even years earlier. Most people assume that they have a right to deny wrongdoing. Indeed, there was once an “exculpatory no” doctrine that maintained that a person could deny a crime with an investigator and not be subject to a charge under laws like Section 1001. This was viewed as an extension of the Fifth Amendment protection against self-incrimination.

The Justice Department litigated for years to deny the “exculpatory no” to average citizens. It finally succeeded in 1998 in Brogan v. United States when the late Justice Antonin Scalia wrote for the majority that “we find nothing to support the ‘exculpatory no’ doctrine except the many Court of Appeals decisions that have embraced it.”

In the case of Flynn, he was not even denying a criminal allegation. There was nothing particularly uncommon, let alone unlawful, in an incoming national security adviser discussing the issue of sanctions that were the main areas of tension with the Russians. Flynn did not deny the meeting but did deny the subject of sanctions, as opposed to discussing better relations in the new administration. Nevertheless, he was charged and, reportedly after depleting his savings and putting his house up for sale, he pleaded guilty.

...

The issue ultimately should not be whether McCabe or Comey used an “exculpatory no” and should have been charged with a false statement. The issue is whether a different set of rules applies to the Justice Department than the one that it applies to the rest of us. In the end, Flynn cut a deal and will have to live with it. Moreover, prosecutors may have felt that they had provable crimes against Flynn or his son, Michael Flynn Jr., making the false statement charge merely a convenient charge for cooperation. (Flynn was dealing with some dubious characters linked to Turkish President Recep Tayyip Erdogan.)

However, there should be a concern whether Section 1001 is a crime that is easily satisfied and arbitrarily enforced. That is a dangerous combination. The “exculpatory no” doctrine may have been ruled as unavailable to citizens but it appears very much alive inside of the Justice Department.