is a former US Marine Corps intelligence officer. He served in the Soviet Union as an inspector implementing the INF Treaty, in General Schwarzkopf’s staff during the Gulf War, and from 1991-1998 as a UN weapons inspector. Follow him on Twitter @RealScottRitter
The role of the FBI in instigating the prosecution of Michael Flynn, the criminality of its conduct, and the encouragement it received in doing so from senior Obama officials should offend everyone.
In a dramatic new turn of events, the legal team for Flynn, President Trump’s former national security advisor, says the Department of Justice has turned over exculpatory evidence in his case. Flynn is defending against charges he lied to FBI agents in the course of their investigation into allegations of Russian interference in the 2016 US presidential election.
At a minimum, this information, which includes evidence that US government prosecutors illegally coerced a guilty plea by threatening Flynn’s son with prosecution, warrants the withdrawal of that guilty plea. Whether or not the judge in the case, US District Court Judge Emmet G Sullivan, will dismiss the entire case against Flynn on the grounds of prosecutorial misconduct is yet to be seen. One fact, however, emerges from this sordid affair: the FBI, lauded by its supporters as the world’s “premier law enforcement agency,” is anything but.
Evidence of FBI misconduct during its investigation into alleged collusion between members of the Trump campaign team and the Russian government in the months leading up to the presidential election has been mounting for some time. From mischaracterizing information provided by former British MI6 officer Christopher Steele in order to manufacture a case against then-candidate Trump, to committing fraud against the Foreign Intelligence Surveillance Court to authorize wiretaps on former low-level Trump advisor Carter Page, the FBI has a record of corruption that would make a third-world dictator envious.
The crimes committed under the aegis of the FBI are not the actions of rogue agents, but rather part and parcel of a systemic effort managed from the very top – both former Director James Comey and current Director Christopher Wray are implicated in facilitating this criminal conduct. Moreover, it was carried out in collaboration with elements within the Department of Justice, and with the assistance of national security officials working for the Obama administration, making for a conspiracy that would rival any investigation conducted by the FBI under the Racketeer Influenced and Corrupt Organizations Act.
The heart of the case against Michael Flynn – a flamboyant, decorated combat veteran, with 33 years of honorable service in the US Army – revolves around a phone call he made to the Russian ambassador to the United States, Sergey Kislyak, on December 29, 2016. That was the same day then-President Obama ordered the expulsion of 35 Russian diplomats from the US on charges of espionage. The conversation was intercepted by the National Security Agency as part of its routine monitoring of Russian communications. Normally, the identities of US citizens caught up in such surveillance are “masked,” or hidden, so as to preserve their constitutional rights. However, in certain instances deemed critical to national security, the identity can be “unmasked” to help further an investigation, using “minimization” standards designed to protect the identities and privacy of US citizens.
In Flynn’s case, these “minimization” standards were thrown out the window: on January 12, 2017, and again on February 9, the Washington Post published articles that detailed Flynn’s phone call with Kislyak. US Attorney John Durham, tasked by Attorney General William P Barr to lead a review of the actions taken by law enforcement and intelligence officials as part of the Russian collusion scandal, is currently investigating the potential leaking of classified information by Obama-era officials in relation to these articles.
Flynn’s phone call with Kislyak was the central topic of interest when a pair of FBI agents, led by Peter Strzok, met with Flynn in his White House office on January 24, 2017. This meeting later served as the source of the charge levied against him for lying to a federal agent. It also provided grist for then acting-Attorney General Sally Yates to travel to the White House on January 26 to warn then-White House Counsel Michael McGahn that Flynn had lied to Vice President Mike Pence about his conversations with Kislyak, and, as such, was in danger of being compromised by the Russians.
That Flynn lied, or otherwise misrepresented, his conversation with Kislyak to Pence is not in dispute; indeed, it was this act that prompted President Trump to fire Flynn in the first place. But lying to the Vice President, while wrong, is not a crime. Lying to FBI agents, however, is. And yet the available evidence suggests that not only did Flynn not lie to Strzok and his partner when interviewed on January 24, but that the FBI later doctored its report of the interview, known in FBI parlance as a “302 report,” to show that Flynn had. Internal FBI documents and official testimony clearly show that a 302 report on Strzok’s conversation with Flynn was prepared contemporaneously, and that he had shown no indication of deception. However, in the criminal case prepared against him by the Department of Justice, a 302 report dated August 22, 2017 – over seven months after the interview – was cited as the evidence underpinning the charge of lying to a federal agent.
The evidence of a doctored 302 report, when combined with the evidence that the US prosecutor conspired with Flynn’s former legal counsel to “keep secret” the details of his plea agreement, in violation of so-called Giglio requirements (named after the legal precedent set in Giglio v. United States which holds that the failure to disclose immunity deals to co-conspirators constitutes a violation of due-process rights), constitutes a clear-cut case of FBI malfeasance and prosecutorial misconduct. Under normal circumstances, that should warrant the dismissal of the government’s case against Flynn.
Whether Judge Emmet G Sullivan will agree to a dismissal, or, if not, whether the Department of Justice would seek to retry Flynn, are not known at this time. What is known, however, is the level of corruption that exists within the FBI and elements of the Department of Justice, regarding their prosecution of a US citizen for purely political motive. Notions of integrity and fealty to the rule of law that underpin the opinions of many Americans when it comes to these two institutions have been shredded in the face of overwhelming evidence that the law is meaningless when the FBI targets you. If this could happen to a man with Michael Flynn’s stature and reputation, it can happen to anyone.