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“A federal judge [last] Wednesday unsealed a new set of documents provided to lawyers for Michael Flynn, the former Trump national security adviser who is seeking to withdraw his guilty plea, that could provide them with new ammunition to attack the FBI's handling of the case.” NBC News
“One page of handwritten notes from an FBI official, dated the day of the interview [with Flynn], appears to recap an internal debate about how to proceed. ‘What’s our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?’ the notes say. The notes also say, ‘If we’re seen as playing games, WH will be furious. Protect our institution by not playing games.’” AP News
The left defends the FBI’s conduct.
“Law enforcement seldom puts all its cards on the table when questioning a suspect. This is not ‘entrapment,’ where one is induced to commit a crime. Rather, the F.B.I. was trying to elicit the truth of whether a crime had already been committed. The alternative would be to lay out all the evidence (which the notes also discuss). But that would have put accountability and our national security at risk by possibly discouraging Mr. Flynn from talking…
“[The FBI was] balancing his rights with the need to learn the truth and assessing how to do so without rattling him. Far from entrapment, that is standard operating procedure.”
Norman L. Eisen, New York Times
“The claim that Flynn was ‘set up’ assumes there was no legitimate reason for his interview, that it was all just a trap. That’s plainly not true. Flynn was a critical witness in a highly sensitive investigation. The FBI knew he had at least some contacts with the Russian ambassador while working for Trump. Even though agents had a recording of a call between Flynn and the ambassador, an interview was essential to ask the many follow-up questions, such as: Who asked you to make the call? What was done as a result of the call? Were there other calls or meetings? It would have been investigative malpractice for the FBI not to interview Flynn…
“Any witness interviewed by the FBI has essentially three choices: tell the truth, lie or assert the right to remain silent. The FBI had no way of knowing which option Flynn would choose when he walked into the interview. All Flynn had to do was tell the truth, or tell the agents he wasn’t comfortable talking to them. He chose instead to lie…
“[There is no] basis for a claim that Flynn was ‘entrapped.’ Entrapment requires evidence that the government so pressured the defendant that his will was overborne and he committed a crime he was not otherwise predisposed to commit. Flynn was a military leader who rose to the rank of lieutenant general, led troops in combat and became national security adviser. The idea that he was so intimidated by a couple of FBI agents during a consensual interview that he simply had no choice but to lie is laughable.”
Randall D. Eliason, Washington Post
“The Flynn interview gave Flynn every opportunity to tell the truth. As the FBI’s partially redacted memo documenting Flynn’s interview reflects, the questions were careful. They were specific. The agents, as Strzok later recalled in a formal FBI interview of his own, planned to try to jog Flynn’s memory if he said he could not remember a detail by using the exact words they knew he had used in his conversation with Kislyak. And Flynn, as he admitted in open court—twice—did not tell the truth. That is not entrapment or a set-up, and it is very far indeed from outrageous government conduct. It’s conducting an interview—and a witness at the highest levels of government lying in it.”
Quinta Jurecic and Benjamin Wittes, Lawfare Blog
“Notably, Trump and his backers, by and large, are not saying that Flynn and [Roger] Stone didn’t lie to federal investigators. Instead they are implying that lying to investigators doesn’t matter…
“Flynn and Stone’s lawyers have argued that because prosecutors have not proved that their clients conspired with Russia, their lies to investigators should be set aside. ‘So much of this case deals with the question: So what?’ Stone attorney Bruce Rogow said in his concluding remarks at Stone’s trial. Prosecutors and judges in those cases have repeatedly dismissed those claims. Federal District Court Judge Amy Berman Jackson, in sentencing Stone, spoke at length on the impact of Stone’s dishonesty, noting he thwarted a key part of the House’s Russia investigation. ‘His pride in his own lies are a threat to our most fundamental institutions,’ she said, ‘to the very foundation of our democracy.’”
Dan Friedman, Mother Jones
Some note that “One very valid question raised by the new documents, though, comes when the unnamed official muses about whether the goal is to ‘get him fired.’ It’s one thing to choose between letting Flynn admit his wrongdoing or lie about it; it’s another to suggest a potential aim is his removal from his White House post. That would seem to be something that is beyond the purview of law enforcement, and it’s key to claims that Flynn was personally targeted…
“But also keep in mind the [then-Attorney General Sally] Yates development: There was real concern around this time that Flynn had not just done something wrong, but that he had opened himself up to blackmail by the Russians because of his actions. In that case, it may be more understandable that the FBI saw some value in getting him removed from such a high-profile post, irrespective of whether he had committed a crime because of the possibility that he was compromised.”
Aaron Blake, Washington Post
The right condemns the FBI’s conduct.
The right condemns the FBI’s conduct.
“Perhaps the most important aspect of this week’s documents is what isn’t in them. The FBI expresses no concern that Mr. Flynn was ‘colluding’ with Russia or otherwise threatening national security—supposedly the rationale for the FBI’s intrusive investigation… The FBI exists to investigate crimes, not to create them.”
Kimberly A. Strassel, Wall Street Journal
“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… Why were they desperate to get Flynn fired or prosecuted when there was no evidence whatsoever that he committed a crime?”
Mark Penn, The Hill
“The FBI set Flynn up to preserve the Trump–Russia probe… How could the FBI sustain an investigation targeting the president when the president would have the power to shut the investigation down? The only way the bureau could pull that off would be to conceal from the president the fullness of the Russia investigation — in particular, the fact that Trump was the target. That is why Flynn had to go…
“After 33 years in the Army chain of command, the decorated former combat commander grasped that the FBI, like other executive-branch components, worked for the president. As NSA, Flynn would ensure that Trump ran the intelligence agencies, not be run by them. If Flynn wanted to know what was going on in intelligence investigations, he’d be able to find out — he wouldn’t take Jim Comey’s ‘no’ for an answer. He was loyal to Trump, not to the intelligence establishment or the ‘policy community’…
“The goal was to get Flynn to lie. Not to lie so they’d have leverage to threaten a prosecution and thus pressure Flynn to reveal vital evidence he’d been concealing. They wanted him to lie for the sake of lying — so they could get rid of him.”
Andrew C. McCarthy, National Review
“The excuse the FBI has tried to use for investigating Flynn is that he allegedly violated the Logan Act — a 1799 law meant to stop private individuals from conducting foreign affairs that’s widely viewed as unconstitutional, has never been successfully prosecuted and surely doesn’t apply to incoming national security advisers…
“There are good reasons why lying to federal investigators is a crime. Those conducting law enforcement for the nation need that degree of power to help them ferret out the truth. But with that power comes significant responsibility… When Congress and the executive branch finish looking into the FBI’s shenanigans, there must be serious consequences for those who abused their offices in pursuit of political ends. It is not the job of federal law enforcement to intimidate incoming members of an administration elected by the people just because FBI leadership thinks the people got the choice wrong.”
David Marcus, New York Post
“In court documents filed in January, Flynn now says he did not remember the details of his conversation at the time. What’s more, Comey himself has testified that the agents who interviewed Flynn in January 2017 did not believe he was deliberately misleading them…
“There remains, of course, the issue of Flynn’s violation of foreign lobbying laws, which he admitted to but for which he was not charged… [but] the FBI until 2017 barely enforced FARA violations. A 2016 Justice Department Inspector General report found only seven times when the U.S. brought criminal charges against FARA violators between 1965 and 2015. Most violators were either fined and/or asked to file retroactively as a foreign agent, which Flynn did in March 2017… Flynn was being squeezed for crimes that are rarely, if ever, enforced. He relented only under financial pressure and a promise that his son, who worked with him in his consulting group, would not be prosecuted.”
Eli Lake, Bloomberg
“Various FBI officials also lied and acted in arguably criminal or unethical ways, but all escaped without charges. McCabe had a supervisory role in the Flynn prosecution. He was then later found by the Justice Department inspector general to have repeatedly lied to investigators. While his case was referred for criminal charges, McCabe was fired but never charged. Strzok was also fired for his misconduct in the investigation. Comey intentionally leaked FBI material, including potentially classified information but was never charged. Another FBI agent responsible for the secret warrants used for the Russia investigation had falsified evidence to maintain the investigation. He is still not indicted. The disconnect of these cases with the treatment of Flynn is galling and grotesque.”
Jonathan Turley, The Hill
A libertarian's take
“The fact that nobody has actually ever been prosecuted for violating the Logan Act—which would create an opportunity to challenge whether the law itself violates the First Amendment—should be seen as a big red flag whenever it's mentioned…
“This conversation between Kislyak and Flynn, where Flynn encouraged Russia not to react harshly to new sanctions from the United States, took place in late December 2016, after Trump won the presidential election… So even in the context of the Logan Act's stated purpose, it doesn't make sense to apply it to Flynn. Remember: The intent was to prevent outsiders from undermining the president's foreign policy goals. It's absurd to use it against an incoming official who merely pointed out that one of the lame duck president's policies isn't likely to stay in place.”
Scott Shackford, Reason
