Mark Penn Pretty Much Gets It

Former Clinton adviser and pollster Mark Penn is an incisive thinker and writer on political and legal topics. His current article at The Hill--Flynn documents are the 'smoking gun' on Comey's FBI--cuts to the chase regarding the persecution of Michael Flynn. Again, however, I must take exception to Penn's use of the term "perjury trap," which we see so widely misapplied to the Flynn case.

Perjury has a very specific meaning:

Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

None of this applies to Flynn's interview with the FBI. That interview was in the most proper sense a "false statement trap," an attempt to get Flynn to make some statement that would appear to be at variance with the transcript of Flynn's telephone conversation with Russian ambassodor Kislyak. That variance could then be used to prosecute Flynn for making a false statement to the US government (18 USC 1001) in the person of two FBI agents--who had no official business with Flynn in the first place.

Had the Department of Justice (DOJ) released the newly disclosed documents related to Gen. Michael Flynn three years ago, instead of fired FBI director James Comey improperly leaking his “memos” on President Trump, there definitely would have been a special counsel — only it would have been investigating the FBI for gross abuse of power, not the Trump administration. 

"Had the DoJ released the newly disclosed documents ..." To be strictly accurate, the DoJ or FBI don't do a thing. Both are impersonal institutions. Actions, or failure to act, that are loosely attributed to such institutions are in fact the responsibilites of officials within those institutions, and their names should be used. In this case, the officials behind this egregious failure to do justice--or, more likely, the egregious obstruction of justice--are ultimately: Rod Rosenstein and Chris Wray. These two undoubtedly had enablers--Dana Boente in particular--but they bear the ultimate responsibility. But clearly these criminals were not acting alone--they were responding to the wishes of a political Establishment against those perceived by that Establishment as detrimental to their interests.

The new documents are in effect the “smoking gun” proving that a cabal at the FBI acted above the law and with extreme political bias, targeting people for prosecution rather than investigating crimes. 

Well, in fairness, the FBI couldn't and didn't act alone. The cabal, as we see more clearly every day, extended throughout the upper reaches of the Obama administration, especially in the USIC agencies, the State Department, and the National Security Council.

... Special counsel Robert Mueller’s report found no evidence of any Trump-Russia collusion. And yet, much of the media coverage of all this has been so riddled with bias that, in a recent poll, 53 percent still believe Trump colluded with the Russians to win the 2016 presidential election. 

... 

Michael Flynn was targeted for investigation not on the basis of any evidence but simply because he had contacts with the Russian government — something that I would hope would be true of any incoming national security adviser. ... 

... 

Let’s be candid — Flynn had been cleared of being a Russian agent on Jan. 4, 2017; there was never any evidence he should have been investigated in the first place. Yet now, because the investigation had not been officially closed, FBI officials cooked up a plan to try to create a crime that did not exist. They unmasked the private conversations of Flynn with the Russian ambassador that contained nothing illegal, so the only chance to “get” Flynn was by setting a perjury trap. This was then all picked up by special counsel Mueller’s team, who threatened Flynn with the possible lobbying transgressions of his son. 

Why were they desperate to get Flynn fired or prosecuted when there was no evidence whatsoever that he committed a crime? Former federal prosecutor Andrew McCarthy suggests they needed to get him out of the way of their investigation. I think it is more likely that they simply wanted to get their targets at all costs and sustain their investigation to bring down the administration. Clear prosecutorial abuses were committed against all of the defendants, none of whom were ever charged with colluding with the Russians. ... 

This was an investigation without foundation that systematically persecuted people at all costs. And the Mueller investigation was honorable only in the sense that the investigators had to admit there never was any evidence of Trump-Russia collusion.

"An investigation without foundation." Does that reality not strike at the very heart of the fundamental concept of Due Process that is the foundation of our constitutional order? An investigation undertaken strictly for political reasons, largely at the behest of a political party acting at the desire of its chosen candidate and an influential political cabal running the Executive Branch of government--what could be more clearly violative of Due Process and of our entire constitutional order?