John Yoo: Dropping Flynn charges right call by Barr — important first step in FBI, DOJ cleanup

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Attorney General William Barr’s decision to drop the prosecution of retired Lt. Gen. Michael Flynn is an ugly, but necessary element of the cleanup of the Justice Department and FBI in the wake of their failures in the Russian collusion probe.

While Flynn had pled guilty to lying to federal investigators, the revelations of FBI shenanigans by people whom the Trump administration has since fired or have resigned justified the extraordinary step of letting Flynn go.

Dropping the charges against the former national security adviser, like the firing of James Comey as FBI director and the removal of his circle of aides, is an important step in restoring control over a law enforcement agency that believed it had a right to pick and choose who were acceptable leaders for our nation rather than respecting the electoral process.

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The recent disclosures of FBI memos in the case show that the bureau set up Flynn in a “perjury trap.” A perjury trap refers to the case when the FBI seeks to get a witness to lie solely to charge him with lying.

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It is not the job of federal prosecutors to try to prosecute everyone who may be lying about something — if that were the standard, the FBI would have its hands full just in Washington, D.C., policing our elected politicians. Instead, the FBI should only charge witnesses for lying when it is “material” to the investigation of some other crime. The released note of an FBI official preparing for the Flynn interview asked if agents should “get him to lie, so we can prosecute him or get him fired.” There is no mention of investigating any true substantive crime.

Here, it does not appear that the FBI could have investigated Flynn for any crime or any true counterintelligence reason. The Justice Department prosecuted Flynn for allegedly lying about whether he had discussed sanctions with the Russian ambassador, Sergey Kislyak, during the transition period from the Obama to the Trump administrations in December 2016.

DOJ argued that this might have violated the Logan Act, which essentially prohibits private individuals from interfering with the foreign policy of the United States. The law itself has never given rise to a successful prosecution and almost certainly violates the free speech clause of the First Amendment.

Comey and his aides simply believed that Trump was unfit for office and were determined to use underhanded investigatory methods to oppose him. They hoped they could use Flynn to cooperate in incriminating others in the Trump campaign, perhaps even the resident himself.  

But even if the Logan Act were good law, Flynn was already acting in an official government capacity as a member of the transition and future national security adviser. It would be Flynn’s job to discuss such matters with ambassadors from foreign countries, and from his long experience in military intelligence, Flynn would know that the FBI would routinely monitor calls with foreign ambassadors under the Foreign Intelligence Surveillance Act.

In other words, Flynn would have had no reason to lie.

The FBI’s wrongdoing is also strongly supported by the highly suspect means it used to conduct the interview. The agents began the interview under the fiction that they were meeting with Flynn to discuss a business matter in his role as national security adviser, on his first day on the job, which would have been normal. But the FBI did not notify White House counsel to be present, as required by White House-DOJ rules, and bureau lawyer Lisa Page advised slipping in warnings for the witness’ rights unobtrusively. And Flynn did not ask for any counsel. Comey later boasted that he could never have gotten away with this in a more organized administration.

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Why did the FBI engage in such lengths? Even after all these shenanigans, the FBI agents concluded that Flynn had not lied. The bureau's leadership revealed their true intentions when they decided to keep the probe open and ultimately handed it over to Robert Mueller’s investigation. Flynn just became a pawn in the broader effort by Comey and Mueller to investigate the claim that Trump had conspired against Russia.

Comey and his aides simply believed that Trump was unfit for office and were determined to use underhanded investigatory methods to oppose him. They hoped they could use Flynn to cooperate in incriminating others in the Trump campaign, perhaps even the resident himself.

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But as the Mueller investigation itself showed, there was no criminal conspiracy between Russia and the Trump campaign. Flynn had pled guilty for nothing.

Now Attorney General Barr has corrected that mistake, and taken another step in the cleaning of the Augean stables that had become the FBI.

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