Hands Down Best Commentary On Flynn Case

Every time I've listened to Brett Tolman discuss anything to do with the Russia Hoax I've been impressed by the way he gets right to the real heart of issues that are often difficult to grasp for people who are unfamiliar with the legal aspects of our national security apparatus. This morning on Fox and Friends Tolman was excellent and succinct as usual, in an interview that focused narrowly on the Flynn case, rather than the big picture of the Russia Hoax. Nevertheless, the implications for Durham's investigation could be enormous, as he will have crushing leverage over everyone involved in trying to screw Flynn--and through Flynn, Trump. Tolman was a former prosecutor, former USA, and former counsel to Orrin Hatch on the Senate Judiciary Committee. He really gets this stuff.

Here's how this excellent interview went.

Q: When you read the notes, it looks like a trap. And it looks like, going in, they were trying to get [Flynn] to admit that he had broken the Logan Act--which, that never happens, that never gets prosecuted [Tolman grin at mention of the Logan Act]--or to catch him in a lie. Cuz, ultimately, they weren't really interested in investigating his contact with the Russians but instead they were looking for a referral to the Department of Justice--and get that guy out of his job.

Tolman: That's right. This activity is outrageous. Everybody's saying it, but here's why it is. It's *predatory.* This is not ... a group of FBI agents who are informed there may be a line of investigation they need to look into. Instead, they are *creating* that investigation. And why are they doing it? They see him, potentially in the role he was in, they saw him as a threat. Perhaps he'd be a threat to what they wanted to accomplish through FISA. Whatever reason, they targeted him, and you can see now, it's starting to come out, that it was a target.

In other words, as I've maintained in the past: Setting False Statement Traps Is Not Official FBI Business. This interview of Flynn had no official FBI purpose--it had nothing to do with official FBI authorities or business. The excuse of the Logan Act was barely even a fig leaf--it was a joke, and a bad one at that. That excuse never rose to the level of a good faith belief that the interview had a legitimate FBI purpose. Nor was the FBI seeking information from Flynn for use in some actual legitimate investigation. The pretext for the interview was simply that the leak--probably an FBI authorized leak to begin with, and certainly one they gave a wink and a nod--had caused a public stir. Flynn fell for that. But the interview itself sought no information the FBI didn't already have and that was legitimately their concern--it turned out to be no more than a memory test for Flynn. And because his memory was claimed not to be up to snuff he was called a liar and was prosecuted. "Predatory." It is not official FBI business to conduct memory tests. That is not within the scope of FBI authority or duties.

The next question focuses on the enormous pressure that Team Mueller was able to exert over Flynn to coerce a guilty plea. The question ends up: "Does Lt. General Flynn now have some leverage to go for exoneration?" Listen to Tolman's response:

Tolman: Yeah, couple of things, very important, there. People plead guilty when they're innocent. Why do they do it in the federal system? Because the federal system has what's referred to as the trial penalty. If you take them to trial you're risking many, many more years in prison. Decades. And they can do it. They could do it in this case. They could create a sentence that he would be facing ... decades in federal prison. So there's enormous pressure. So he pleads guilty thinking it'll be probation, he'll get this behind him, only to learn and realize that his lawyers didn't serve him well, there were conflicts of interest. He's now feeling that he's stuck, he hires a new lawyer and she aims at one thing, one thing alone: She wants to see the underlying documentation that justifies what they did. That's called 'exculpatory evidence', what they found. Usually you find that kind of evidence and it suggests some sort of innocence. But here it suggests innocence *and* misconduct by the FBI. It's outrageous!

The final question is prefaced by a video clip of Devin Nunes saying "Clearly General Flynn is gonna have a civil rights case. ... Secondly, hopefully there's gonna be some prosecutions for this matter." So, the question goes, re Priestap's notes, which suggest strongly that Priestap thought the "game playing" was at least ill advised, perhaps even legally wrong: "James Comey and Deputy Director Andrew McCabe were in that meeting. What will happen to them?"

Tolman: So, a lot of people are throwing out the phrase, 'obstruction of justice.' That's *not* the only issue for these individuals. If they knew going into this that they were setting up and creating this crime that wasn't actually there [please refer again to my comments above] then they made representations to the grand jury, and then they made representations to the court--all of those can have criminal consequences. Keep in mind, the Supreme Court in 1971 said that an individual like Flynn can go after agents that do this kind of thing--knowingly violate someone's constitutional rights. It's called a 'Bivens action.' And I'm pretty certain, if this case gets dismissed, that'll be the first thing he does.

A Bivens action is not necessarily straightforward in all cases, but I believe Tolman is correct in this case. There have been, in relatively recent years, restrictions placed on Bivens actions by the Supreme Court. Nevertheless, in this case, where there is such strong evidence of a conspiracy to use the "color" or cover of federal law to knowingly violate Flynn's rights, acting outside of any plausible authority, that Flynn probably has a strong case. And a case that any lawyer would love to present to a jury. You can read about Bivens actions here.

This is what the conspirators are facing: the strong potential for crushing civil and criminal liability with all the attendant legal costs and gut wrenching consequences for personal lives. That's what Durham gets to work with to secure cooperation and/or pleas. That's the kinda stuff you should consider before getting into an attempted coup.