Sol Wisenberg: Michael Flynn case — how FBI officials, step by step, abused their power

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Ken Starr on Flynn case: Comey's FBI conducted unrighteous, if not unlawful investigation

'They were out to get the Trump administration,' says Judge Ken Starr discusses Jim Comey's handling of Michael Flynn's case

Lt. Gen. Michael Flynn, President Trump’s national security adviser in the early days of the administration, pled guilty on Dec. 1, 2017, to lying to FBI supervisory officials during a Jan. 24, 2017, White House interview. Under Title 18, U.S. Code, Section 1001, it is a felony to lie about a matter within the jurisdiction of the executive, legislative or judicial branch.  

Flynn is now moving to: 1) withdraw his guilty plea based on his original attorneys’ alleged conflicts of interest; and 2) dismiss the case based on alleged egregious government misconduct.   

Documents were partially declassified and released last week and filed in federal district court by Flynn’s new attorneys. Additional documents are being declassified and will undoubtedly be filed as well. What do the documents released so far reveal? They tell us that, whether or not Flynn wins on his motions, the Jan. 24, 2017, interview was a corrupt set-up, conceived and orchestrated by then-FBI Director James Comey and then-Deputy Director Andrew McCabe. 

ANDREW McCARTHY: FBI SET UP MICHAEL FLYNN TO PURSUE TRUMP-RUSSIA INVESTIGATION

It is important to consider the recent document releases in United States v. Michael Flynn in light of the overall Crossfire Hurricane investigation.

Crossfire Hurricane, launched on July 31, 2016, was the name given to the FBI’s counterintelligence investigation into possible collusion, witting or unwitting, between members of Trump’s campaign team and Russians attempting to influence the 2016 election. Crossfire Hurricane was not begun based on any allegations related to Flynn. Instead, the Bureau authorized Crossfire Hurricane after it learned, third-hand, that Russia may have "suggested" assisting the Trump campaign by anonymously releasing dirt on Hillary Clinton.

An FBI subfile was created on Flynn, not because of any allegations against him, but because of the general’s known contacts with Russia. Such contacts would hardly be surprising for a former director of the Defense Intelligence Agency who was a Trump adviser rumored to be Trump’s choice for national security adviser if he won the election. The subfile investigation of Flynn was known as Crossfire Razor, or Razor, for short. 

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The documents made public last week show that Flynn had already been completely cleared in the Crossfire Razor investigation by Jan. 4, 2017. A draft closing communication was prepared on that date by the Crossfire Razor team, but the decision to close the file had been made well before then. Such a draft closing communication would never have been commenced unless the case agents had received prior approval from their FBI supervisor.

In fact, later that same day Peter Strzok, deputy assistant director of the FBI’s Counterintelligence Division, was surprised to discover that the file was still open. Strzok texted Lisa Page, legal counsel to Deputy Director McCabe, that "our utter incompetence actually helps us." (Strzok was later removed from Special Counsel Robert Mueller’s investigative team, and ultimately fired, after Department of Justice Inspector General Michael Horowitz disclosed that Strzok and Page, who were lovers at the time, had exchanged text messages during the Crossfire Hurricane investigation exhibiting extreme bias against Trump and discussing an "insurance policy" should he win the election.)  

Strzok ordered that Razor be kept open. It was kept open under the guise of investigating Flynn for a possible Logan Act violation based on Flynn’s late December 2016 post-election phone calls to then Russian Ambassador to the United States Sergey Kislyak. These calls, which were approved by senior members of the Trump transition team, relayed the incoming administration’s requests regarding a pending United Nations resolution, and Russia’s anticipated response to the Obama administration’s sanctions against Russia for interfering in the 2016 elections. Those sanctions resulted in the expulsion of a large number of Russian diplomatic personnel from the United States.  

Keep in mind that Flynn was an official member of the Trump transition team at the time of these phone calls and had already been designated as Trump’s soon-to-be installed national security adviser. According to the statement of the offense in United States v. Michael Flynn, Flynn called Kislyak on Dec. 29, 2016, "and requested that Russia not escalate the situation and only respond to the U.S. sanctions in a reciprocal manner." 

Why is all of this important? Because there was simply no way that Flynn was ever going to be prosecuted for a Logan Act violation.

The Logan Act was passed in 1799. It prohibits citizens from carrying on correspondence, without the authority of the United States, with any foreign government with the intent to influence the measures or conduct of that foreign government in relation to disputes or controversies with the United States or with intent to defeat the measures of the United States. Only two people have ever been charged under it, the last one in the 1850s, and neither of them went to trial.

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By late 2016, the Logan Act had long been considered by the American political and legal establishment to be a constitutionally dubious dead letter. Even if it was not a dead letter, and even if it could be applied to Flynn’s calls, no federal prosecutor would dream of charging an incoming national security adviser under the Logan Act for making the kinds of phone calls Flynn made three weeks before the inauguration.  

In short, there was no law enforcement purpose for the Flynn interview. The purpose of the interview was to have Flynn lie and get him fired, which is reflected in notes taken by Bill Priestap, then-director of the FBI’s Counterintelligence Division and Strzok’s boss. According to news reports, Priestap’s notes were reportedly taken during or after a discussion with McCabe and/or Comey, the day Flynn was interviewed by the FBI. 

What happened next? The sequence of events is very important here. Flynn was cleared in Crossfire Razor by Jan. 4, 2017, but we now know that Strzok, McCabe and Comey kept the file open under the guise of a possible Logan Act violation. Somebody then illegally leaked the classified Flynn-Kislyak phone call transcripts to the Washington Post’s David Ignatius, suggesting to Ignatius that Flynn may have violated the Logan Act by discussing sanctions with the Russian ambassador.  

It was an abuse of power on par with the worst such abuses this country has ever seen.

On Jan. 12, the Post obligingly published Ignatius’s story, making public the possible Logan Act violations. Between the 12th and 15th Flynn denied to certain transition team officials that he had discussed sanctions with Kislyak. We don’t know if he did so deliberately or simply forget the details of the Kislyak conversations.

It would be odd if Flynn deliberately lied to these officials since he had obtained instructions from senior transition team officials on what he should say to Kislyak and had subsequently reported back to these same officials on his conversations. Plus, Flynn knew that the call was being monitored and that transcripts existed. Flynn’s denials were repeated to the press by certain transition team officials, including Vice President-Elect Pence.  

On Jan. 24, four days into the new Trump administration, McCabe, with Comey’s blessing, set up an interview with Flynn, in a misleading manner that violated the very DOJ-White House protocols Comey professes to hold sacred. The White House counsel was not informed of the interview. Instead, McCabe told Flynn that "in light of the recent media coverage" of the Kislyak conversations, "Director Comey and I felt that we needed to have two of our agents sit down with the general and hear from him the details of those conversations."  

McCabe told Flynn that "the quickest way to get this done was to have a conversation between him and the agents only." Comey later admitted that he wanted to catch Flynn off guard in the relaxed unorganized atmosphere of a days-old Trump administration. And that’s what happened.

The officials who interviewed Flynn were none other than Strzok and Supervisory Special Agent Joe Pientka. They reported that Flynn treated them as colleagues and did not act in any way like he was lying about the Kislyak conversations. In other words, he may well have forgotten that he discussed the sanctions with Kislyak. 

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The documents released last week prove beyond any doubt that Flynn was set up in something very similar to a perjury trap.

A perjury trap occurs when the facts are known to prosecutors and investigators and the only purpose of the interview is to catch the subject in a lie. This was a false statement trap since Flynn was not under oath, but the principle is the same. In fact, this was worse than the classic perjury trap, because in a perjury trap a legitimate investigation is underway. That was not the case here.

Flynn had already been cleared in Crossfire Razor and the case file was only kept open under the false pretense of conducting a Logan Act investigation. It was a fake investigation. It was sleazy and sickening and any government official who participated or acquiesced in it is utterly corrupt.  

Many of Flynn’s supporters maintain that he was entrapped. This is inaccurate. Entrapment is a defense to a crime. Entrapment assumes that you committed an offense but were entrapped into doing it. Flynn now maintains that he did not lie to the FBI.  

Besides, we do not want to confuse the gross impropriety of what was done to Flynn with the fact-intensive question of whether the charges against Flynn should or will be dismissed. Flynn has many legal hurdles yet to clear and stands before a judge who does not seem to like either him or his attorney. Flynn also admitted under oath on the day of his guilty plea that he deliberately lied to the FBI. 

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No, entrapment is the wrong word. As I have detailed above, what the Comey-McCabe-Strzok-Page cabal did to Flynn was far worse than entrapment. It was an abuse of power on par with the worst such abuses this country has ever seen. The law enforcement elite of an incumbent administration used the very mechanisms established to protect our national security to attack a campaign of the opposing party and continue that attack as that campaign transitioned into power.  

President Trump is right about one thing. This should never happen again to any other president. 

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