I find the reply memo to be a shocking document. Something does not compute.
Something is clearly wrong with it all. Whether or not Flynn lied, it all seems so unfair, including the very way in which the agents conducted the interview. Another of the Powerline bloggers, Paul Mirengoff nicely sums up what we instinctively know was going on:
There’s no mystery about what happened to Flynn. Towards the end of the Obama administration, this decorated General and top intelligence official left the government and became the leading critic of the administration’s national security policy.
Compounding his offenses against the deep state, Flynn joined the Trump campaign team. ...
For the deep state, this was the last straw. Once Flynn was named Trump’s national security adviser, it sought revenge. ...
Yet, the question arises: Is there a legally principled way to address the Flynn situation, one which does justice to Flynn--despite his misconduct--but preserves the integrity of our justice system and, crucially, of our courts? I believe there is and addressed it this past Saturday. The solution should, in fact, be glaringly obvious, but has escaped notice--most likely because it requires an examination of the basic principles underlying law enforcement in our constitutional system. In our system of law the State is not authorized to simply test its citizens--citizens are entitled to be left alone unless law enforcement has some articulable reason for approaching them. Let me state this very bluntly, with application to the Flynn case, before examining it in more detail:
False Statement Traps Are Not Official FBI Business. The FBI has no authority to interview random people to see whether they will lie. They must have an articulable reason for the interview to begin with--one that flows from their official duties. All else must follow from that.
In light of this principle, the first question that arises with regard to the FBI's approach to Flynn is clear: What reason did the FBI have to interview Flynn?
Presumably they could have asked him about any of the matters for which Flynn was being investigated--but they didn't. They had no articulable official reason, for the simple reason that Flynn's contacts with the Russian ambassador were perfectly proper and legal. Thus the vagueness of the rationale that McCabe presented to Flynn before he sent the two agents to the White House:
“I explained that in light of the significant media coverage and public discussion about his recent contacts with Russian representatives, that [FBI] Director [James] Comey and I felt that we needed to have two of our agents sit down with the General and hear from him the details of those conversations.”
This is absurd. Is the FBI in the PR business for the White House, or even for the Intelligence Community? Is the FBI some sort of watchdog over foreign policy? Why should the FBI want to hear the details of the perfectly proper conversation from Flynn--second hand--when they already had a recording of the conversation? In any event, listening to Flynn's second hand account could add no further details. In fact, Flynn's second hand account would certainly be less reliable and accurate than the recording of the conversation. And that was the point that the gullible Flynn missed. Mirengoff states it succinctly:
Because the agents knew the contents, it was unnecessary to ask Flynn about them. The purpose of the interview surely was to see if Flynn would lie.
Further, 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. But they didn't. Instead, they proceeded with a preset strategy that they hoped would elicit statements--any statements--that could be interpreted as false. The interview was a test for Flynn, a trap, as Mueller himself makes crystal clear in his Reply Memorandum, that document that Johnson says "does not compute":
During the interview, the FBI agents gave the defendant multiple opportunities to correct his false statements by revisiting key questions. When the defendant said he did not remember something they knew he said, they used the exact words the defendant had used in order to prompt a truthful response.
"To prompt a truthful response?" Regarding "something they knew he said" and Flynn knew they knew? The FBI already knew the truth! Put yourself in Flynn's position. How would you like to be interviewed by the FBI regarding a conversation you had had that was perfectly proper and which they had recorded? Wouldn't you wonder what business it was of theirs, for starters, and why they needed to get your account anyway? And yet how many people would submit to the interview, thinking apparently like Flynn, well, it's the FBI--I guess I have to go along with this! And then it turns out that it's simply a test--a test of your "truthfulness"!
And so the answer seems clear: the interview was designed as a false statement 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 articulable official reason. Consider this hypothetical that I hope will present the issue in an even broader light.
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 were on official duty at the time--you had left the office with your full complement of Bureau issued paraphernalia, badge and 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? The answer must be: No. They were simply testing Flynn, without pursuing a line of questioning that pertained to any suspected crime or other matter that fell under the FBI's responsibilities. 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 when they had had ample time to get their stories right, they were unsure of any justification. Reports of Yates' anger at Comey's precipitous decision to set a false statement 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 those misleading statements 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 the House were no more than CYA excuses, made necessary by the FBI's ill considered action. Of course Flynn had behaved badly--as he had done with regard to his foreign agent consultancy--but this was a matter for the White House to sort out, as it did, soon enough. But our point is simple: the FBI had no official reason to test Flynn's recollection of a conversation that the FBI already possessed in recorded form. Therefore, if a prosecutor should bring a case based on an FBI "false statement test," any court should refuse to take notice of the case. The case should be dismissed as failing to show that any crime has been committed.
No court should allow the FBI to set itself up as a self appointed tester of the truthfulness of the citizenry, absent an articulable reason related to the FBI's official duties. It's not about approving Flynn's conduct. It's about preserving our basic constitutional rights and preventing unprincipled FBI and DoJ officials from turning our country into a police state.
UPDATE: I had considered doing another post discussing some of the ins and outs of 18 USC 1001, False Statements to the US Government--particularly in light of Team Mueller's non-credible claim that the Logan Act could have "potentially, potentially" provided a basis for prosecuting Flynn (only, on mature reflection, they let that moment of insanity pass). I've decided it's just not worth the time and effort to flog that horse any more. However ... a few more comments.
First, Matthew Walther has an amusing but seriously and delightfully pointed article, The Mueller Delusion. In a comment below I noted that, in response to Judge Sullivan's inquiry whether there were any other violation (besides 1001) that Flynn could be charged with, the Team Mueller prosecutors' hilarious response was:
"The facts could potentially, potentially, support a violation of the Logan Act."
Right. And the moon could "potentially, potentially," be made of green cheese.
Walther perfectly captures the farcical tone of yesterday's proceedings by observing that considering indicting Flynn under the terms of the Logan Act, "is the prosecutorial equivalent of announcing a snipe hunt." He goes on to characterize Mueller's actions to date as "doing a good impersonation of a delusional power-crazed middle-school librarian." Perfect--if the destruction of human beings weren't such a sad and serious thing.
However, for anyone who wants to learn more about 1001, its history and intent and its potential for serious and dangerous abuse of the rights of US citizens, I can't recommend highly enough Justice Ginsburg's concurring opinion in the leading 1001 False Statements case: BROGAN v. UNITED STATES. Really. To give you a flavor, consider these brief excerpts in light of what we know happened to Flynn:
Yet it is noteworthy that Congress enacted that amendment to address concerns quite far removed from suspects’ false denials of criminal misconduct, in the course of informal interviews initiated by Government agents. Cf. ALI, Model Penal Code §241.3, Comment 1, p. 151 (1980) (“inclusion of oral misstatements” in §1001 was “almost [an] accidental consequenc[e] of the history of that law”).
Even if the encompassing language of §1001 precludes judicial declaration of an “exculpatory no” defense, the core concern persists: “The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.” Sherman v. United States, 356 U.S. 369, 372 (1958).
Thus, the prospect remains that an overzealous prosecutor or investigator–aware that a person has committed some suspicious acts, but unable to make a criminal case–will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.
And, in fact, what happened to Flynn is even more egregious than Ginsburg imagined could happen.