Tuesday, May 5, 2020

Victoria Toensing On Predication--And Me On The Logan Act

Today Victoria Toensing did a five-part series of tweets that expose the fact that the FBI never had any grounds to interview Michael Flynn--no predication for any investigation, and an interview is an investigative act. However, the tweets are in a sort of shorthand. I've take the liberty to expand that shorthand to provide a fuller exposition--which still preserves the tone and substance of the original. To that I've appended my own views on how the whole issue of the Logan Act plays into all this.

Victoria Toensing

In honor of Law Day I will be Tweeting later today about the legal and procedural issues that violated General Flynn's constitutional rights.

No1: The interview of General Flynn was corrupt because it was contrived. The FBI needs, at the least, an allegation of a crime to interview you. They cannot knock on your door and ask what you had for breakfast. The FBI asked General Flynn what he said in his calls with Ambassador Kislyak. The incoming National Security Adviser can talk to any foreign leader re any issue on behalf of the President-Elect. There is no crime in that for the FBI to investigate.

[Remember what I said above. No investigative step can be taken by the FBI unless they have a good faith belief that they are investigating a crime that falls within their jurisdiction. An interview is an investigative step.]

No2: The FBI purposefully did not tell General Flynn in Jan 2017 that he could be prosecuted if he didn't recall the ENTIRE conversation with Kislyak. They acted like it was a friendly discussion ... just like their previous visits in the days before. The FBI at first said there was “no deception.” Then Mueller was appointed in May.

No3: For a statement to the FBI to be a crime [a 'false statement' for purposes of 18 USC 1001], the statement must be “material,” i.e., your statement must have “impeded an FBI investigation.” If there is no crime to investigate, then nothing "material" has been impeded. You can tell the FBI you had yogurt for breakfast even if you had a jelly donut--if there is no investigation of yogurt or donuts there is no crime.

No4: The lousy Covington lawyers never asked for transcripts of General Flynn's calls with Kislyak. How can a lawyer tell his client to plead guilty to false statements when he hasn't compared the FBI interview notes with the actual words that were recorded? Now the US Government won’t even admit to Sidney Powell that such a tape even exists!

No5: What is the reason for this illegal conduct by the FBI? The FBI needed to eliminate General Flynn, lest he discover and put a stop to Crossfire Hurricane, the hoax investigation of Trump/Russia collusion. General Flynn knew where all the bodies might be buried in the Deep State.

IOW, Toensing is saying that, if there was no predication for an investigation of the conversation between Flynn and Kislyak, it makes no difference what Flynn told Strzok and Pientka during the interview--no legitimate investigation was impeded and no interview should have been conducted in the first place. The interview was conducted under a pretext of an investigation when no investigation was legitimately allowed.

But the fact is, the Logan Act narrative was a hoax predication. The Logan Act was a law that was enacted in 1798 but had never actually been used to prosecute anybody--not even George Logan, for whom the Act was named. There have been two indictments under the Logan Act--one in 1803 and one in 1852. Neither proceeded to prosecution.

Normally, when an FBI investigation reaches a certain point, the FBI seeks a legal opinion from a representative of the Department of Justice--typically, a local Assistant US Attorney (AUSA), a "line" prosecutor. That point might be when the investigating agents decide that they need the assistance of a grand jury--to obtain subpoenas for documents or to question witnesses who refuse to submit to an interview. Another reason to seek a legal opinion would be to determine whether the facts as known actually constitute a violation of federal law. The FBI has its own lawyers, of course, but their views have no bearing on the matter--it's the DoJ attorneys (usually working under the local US Attorney - USA) whose opinion matters, because they decide whether or not to prosecute.

Note that, while the Flynn case was opened at the direction of FBIHQ, the case was actually handled by the FBI's Washington Field Office (WFO), so if WFO--where Pientka was the supervisor handling the case--had sought a legal opinion they would have gone to the USA of the District of Columbia. That, by the way, explains why Pientka wrote up the interview of Flynn, even though Strzok had taken the lead. The reason is administrative: The Flynn case was opened in WFO. Therefore the case was assigned to Pientka, and so Pientka was technically in charge and would be responsible for writing up the interview. That's the reason for all the shucking and jiving at FBIHQ about revising the Flynn 302 while "saving Joe's voice".

In the actual circumstances of the Flynn case, the FBI--if it was seriously considering that Flynn had somehow violated the Logan Act--was dealing with a law that, in over 200 years, had never been prosecuted. Moreover, it was a law that was widely considered by legal scholars to be unconstitutional. Matthew Walther perfectly captures the farcical tone of the FBI and DoJ supposedly considering a prosecution of Flynn under the Logan Act when he observes that considering indicting Flynn under the terms of the Logan Act, "is the prosecutorial equivalent of announcing a snipe hunt." Finally, the FBI had all the facts it needed at its fingertips: Remember, the FBI had a full recording of the conversation between the NSA-designate and the Russian Ambassador to the US. There was no actual need to give Flynn a memory test. All the FBI needed to know was, was there actually any criminal violation in play. If Yes, consider an interview. But if No, shut it down.

In the circumstances of the Flynn case the whole thing is further complicated by the fact that any proposed prosecution of Flynn under the Logan Act would certainly be controlled by the Presidential Transition Act. It's widely accepted that, as Victoria Toensing says, "The incoming National Security Adviser can talk to any foreign leader re any issue on behalf of the President-Elect." If that were not the case then the foreign policy of the United States--the most important country in the world--could conceivably be paralyzed for the entire transition between the election and the inauguration--a matter of two and a half months. That prospect is so crazy that, well, Congress passed a law to deal with that: The Presidential Transition Act.

For the FBI to take off on a wild goose chase of that sort without seeking a legal opinion is ... words fail me.  Irresponsible? Yes. A gross usurpation of proper responsibility? Yes. Crazy? Yes. Feel free to add your own descriptors. To me it was a crime against the constitutional order of the United States, because it was part of a conspiracy to nullify an election under false pretenses. No predication for an investigation means: false pretenses.

OK. So, as a very practical matter, the whole question boils down to this: Is there a memo or EC somewhere in the Flynn case file that memorializes the legal opinion of DoJ--whether the opinion of a DC AUSA, or the opinion of DAG Sally Yates, or an opinion from the Office of Legal Counsel, stating that the FBI should proceed because it looks like a criminal statute was violated? I don't think there is. Peter Strzok didn't even tell WFO why he was telling them to keep the Flynn case open--he just told them, Hey, don't close it. The fact that he didn't explain the Logan Act to WFO pretty much gives the game away. The open case at WFO was nothing but an administrative place marker--it had nothing real to do with the interview.

Regardless, it should be an easy matter to discover whether such a memo or EC exists. Did Sally Yates or some other responsible official at DoJ tell the FBI that, yes, we think General Flynn violated the Logan Act and if you present the facts to us we will prosecute General Flynn? If such an opinion was given, then it should be memorialized in the FBI's files. If no such document exists, then any investigative actions taken by the FBI under color of the Logan Act were very arguably conducted outside the FBI's actual authority. The interview would have been part of a criminal conspiracy to deprive Michael Flynn of his constitutional rights.


  1. Notice, that the Susan Rice memo saying President Obama wanted them to do things by the book, appears to have been a laughable joke.

    Rob S

  2. Sally Yates was telling -- and leaking to -- everyone that Flynn had not merely violated the Logan Act.

    Rather, Flynn had made himself vulnerable to Russian blackmail, because Ambassador Kislyak knew that Flynn had violated the Logan Act.

    Never leave that part of the story out.

  3. CAN they get around the lack of criminal predication by arguing the CR investigation was an offshoot of CH, which was a Counter Intel investigation?

    (Obviously even if they make that argument, they still have a problem because Pientka wrote the draft closing memo on Flynn being a Russian agent back on Jan 4th, so it's still hard for me to see how they can argue they interviewed FLynn for a CI investigation, when the WFO was ready to drop the investigation of whether Flynn as acting on behalf of Russia for lack of evidence.)

    1. No. Each case has to stand on its own. CH being a CI investigation doesn't make any difference. Any investigation of a USPER must have predication.

  4. One way of looking at this fact pattern is to assume that the participants were bad at their jobs of being law enforcement agents. Alternately, another way to view this is to assume that they were very good at being criminals.

    First, a criminal masquerading as an FBI agent is about the best cover legend imaginable. Second, using decades of experience in the FBI bureaucracy to inform and improve your cover tactics is both brilliant and sublime. Third, if things go crosswise, you have a built-in excuse (the Russians fooled me, so at worst I'm just incompetent). Last, if all else fails, you can flip for Durham and buy some leniency with that evidence you've been hiding in your home safe.

    1. I try to focus on things like statutes, guidelines, administrative arrangements because that's the milieu in which these criminals operate. They tailor their operations to maintain cover within that milieu, so we need to see it from their point of view to understand why they take the actions they do.

    2. What you say in this response addresses my biggest fear. To anyone who has been reading your blog, all of these actors tried to unseat a president. They may have seen themselves acting under a higher authority, they may simply have been corrupt public servants trying to maintain their sinecures, and to conceal their activities.

      But what specific laws did they break? I'm worried they all have so much explanatory wiggle room that even if they get indicted, no slam dunk, they'll walk. And yes, I do worry about a Washington D.C. jury. All it takes is one person.

    3. Titan 28, some of the characters will rat on the other, so there will be plea agreements. This includes some big fish. Their information will cause others to accept plea agreements, as well.

      And, there may well be convictions.

    4. I believe you're right Joe. Two factors:

      1) Not all of these people--including some who know a lot--can afford to go through a trial. Look at what happened to Flynn financially, and that was a plea deal. I'm betting Flynn will recover through civil suits, but these defendants will not.

      2) Crooked LE people setting up innocent citizens are exceedingly unsympathetic defendants--even to a DC jury. In some sense, especially to a DC jury that could be heavily African American. Anyone who thinks African Americans would be sympathetic to lying, crooked, predatory FBI/DoJ defendants probably needs to reconsider.

  5. Some complain that the Flynn matter should get over already. Trump should pardon him, or the DoJ should dismiss, or something else should short-circuit the process. That is a short-sighted approach, because it is blind to the contribution that this ongoing case makes to the public and to Barr.

    The drip=drip=drip has gotten to Judge Sullivan. He was more than ready to rule, and to drop hammers. After one shoe dropped, then a couple more, then a shelf-full -- now he can sense an avalanche of footwear headed his way.

    Likewise, the desperate efforts of the MSM go avoid the subject has to give way to some coverage. The ICA seems to be toast, and with it falls the narrative of Putin's preference for Trump (he gave money to Hillary) and the like.

    Yes, it is unfair. The general has been to war and can smell it here. So Trump and team are using Flynn as the point of the spear -- more like the point of a can opener.

  6. Paladin1789 makes some great points. I'm anticipating that Sullivan is going to blast the FBI and the DOJ.

    Of course, I've been wrong before....