Andy McCarthy is writing up a storm today.
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The issue for the Justice Department is not whether Flynn made misstatements to Vice President Pence and other administration officials; it is whether prosecutors are in a position to carry their burden of proof that Flynn willfully lied to the interviewing agents. On the evidence as we understand it, I do not believe a jury would be confident even that they knew exactly what statements Flynn made, much less whether his statements were intentionally false rather than honest failures of recollection.
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It is repeatedly claimed in the reporting that James Comey, then the FBI director, withheld information about the Flynn-Kislyak conversations from Sally Yates, then the acting attorney general, even though President Obama had clearly been briefed on it by the time of the White House meeting on the morning of January 5, 2017. That is not true. Mary McCord, then-chief of DOJ's National Intelligence Division, has explained that Comey's deputy, Andrew McCabe, informed her of the Flynn-Kislyak conversations on January 3.
At that point, McCord should have briefed her superior, Yates, and she planned to do just that on the afternoon of January 5. When people are very busy, this is the kind of screw-up that frequently happens. I'm betting McCord did not realize her boss was meeting with the president that morning; or, if she was aware, she did not realize Flynn was on the agenda. But the fact remains: The FBI did inform DOJ at a very high level.
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There is nothing wrong with President Obama's knowing about a counterintelligence investigation. In fact, if the FBI truly believed a candidate for the presidency was in an espionage conspiracy with the Kremlin, there would be something profoundly wrong if the president were not kept informed. It would be expected that the president would give his subordinates direction.
The issue has never been whether Obama knew of course he knew. The issue is what exactly was it that he knew about. That is, was this a good faith investigation based on real evidence that Trump's campaign was conspiring with the Kremlin, or was it partisan political spying and sabotage carried out under the guise of counterintelligence?
LINKAnd another.
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The guiding tenet of the criminal justice system is that the government bears the burden of proving guilt beyond a reasonable doubt. All of the system's rules are rooted in this principle. These include the prosecutor's ethical obligation to dismiss a charge in the absence of a good-faith belief that a rational jury could convict the accused based on the government's evidence.
The Department of Justice (DOJ) last week dismissed the prosecution of Michael Flynn, who fleetingly served as President Trump's first national security adviser. In all the heated commentary over this decision, scant attention has been paid to the most compelling reason for vacating Flynn's 2017 guilty plea to one count of making false statements to FBI agents: The government wouldn't have a prayer of convicting Flynn at trial.
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The Department of Justice (DOJ) last week dismissed the prosecution of Michael Flynn, who fleetingly served as President Trump's first national security adviser. In all the heated commentary over this decision, scant attention has been paid to the most compelling reason for vacating Flynn's 2017 guilty plea to one count of making false statements to FBI agents: The government wouldn't have a prayer of convicting Flynn at trial.
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Likewise, DOJ never would have charged Flynn criminally with violating the Logan Act a moribund, unconstitutional prohibition against freelance diplomacy. In the DOJ's 150-year history, the Logan Act has never been charged. No one has ever been convicted for violating it; there has been no case since 1852. To say it would be a preposterous basis for indicting a president-elect's top security adviser puts it mildly.
DOJ now theorizes that if the Flynn interview was not connected to a properly based investigation, any alleged false statements he made could not have been material. Both Flynn and the investigators, moreover, knew the Kislyak discussions were recorded. Flynn stressed that the agents could listen to the conversation if they wanted to know what was discussed. Any misstatements during the interview could not have affected the FBI's understanding.
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First, Flynn's statements to investigators were equivocal. That creates significant questions about whether inaccuracies in his description of the Kislyak discussions were honest failures of recollection, not lies. The interview happened about a month after the Kislyak communications. In the interim, Flynn had hundreds of conversations with foreign counterparts. It would have been a challenge for anyone to remember the words of a conversation under those circumstances; and, in their legerdemain, the FBI strategically refused to refresh Flynn's recollection by playing recordings or showing a transcript.
Second, the FBI and prosecutors took inconsistent positions on whether Flynn intentionally misled them. The interviewing agents believed he was truthful, if forgetful. Director Comey reportedly said the question of whether Flynn lied was a "close call." Assuming this is so, a close call is not proof beyond a reasonable doubt.
Third, the agents went out of their way to deceive Flynn about the purpose of the interview, at which they hoped to trip him up. It is rote for FBI "302" reports used to summarize witness interviews to start by recounting that interviewing agents advised the subject of the nature of the interview. But they did not do that with Flynn. He was discouraged from consulting counsel and from reporting the FBI's request to speak with him to his White House chain-of-command. He was not given the customary advice of rights the FBI, after officials acknowledged among themselves that they owed it to Flynn to advise him that a false statement could be grounds for prosecution, willfully withheld this admonition from him.
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Fourth, the two government witnesses in the case have monumental credibility problems. Under federal law, Flynn's statements confessing guilt during his plea proceedings would not be admissible against him at trial if the plea were vacated. And Flynn would claim, in any event, that his plea statements were induced by coercion and fraud a threat to prosecute his son if he did not plead guilty, and the prosecutor's commitment not to prosecute his son, which was illegally withheld from the court.
Consequently, the government's entire case boils down to the testimony of two FBI agents: Peter Strzok, who was terminated for misconduct, and Joe Pientka, who appears to have been the case-agent on the Trump-Russia investigation and to have played a significant role in serial misrepresentations made to obtain surveillance warrants against former Trump campaign adviser Carter Page.
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Nevertheless, if this case had gone to trial, the whole sordid story would have come out. No rational jury would have convicted Flynn of making false statements based on the testimony of Strzok and Pientka. The bureau's irregular tactics, its dissembling, the equivocal nature of Flynn's statements and the FBI's sense that he was not trying to be deceptive, would have made proof beyond a reasonable doubt an insuperable hurdle.
LINKThis "case" against Flynn was screwed up from the get-go, long before Mueller was appointed. Had Mueller had any honest prosecutors on his team, they would have recognized that and declined to raise the matter. But since Van Grack was in on some of the early DOJ meetings about Flynn, he was best positioned to take the case forward anyway. An egregious position knowing what we know now but what Van Grack likely knew back then, the very beginning.
That type of prosecutorial malfeasance cannot be condoned. He should be fired from DOJ and subject to disciplinary process for his massive ethical lapses and dare I say, crimes.
