Michael Flynn should not have misled FBI agents about his contacts with the Russian ambassador during the presidential transition last December, his defenders say, particularly because he did nothing illegal.
But Friday’s plea deal was the result of a number of things wrong with a politicized FBI, Justice Department, and its Office of Special Counsel, say political observers.
The agencies have, in the past, gone light on Democrats such as Hillary Clinton, but laid perjury traps for Trump officials like Flynn, who served as national security adviser for President Donald Trump for less than a month.
Flynn, Trump defenders say, was the victim of hysteria about alleged Russian hacking into 2016 Democratic email accounts. But his plea had nothing to do with the hacking, the ostensible focus of the Justice Department’s special investigation.
Instead, Flynn was surveilled by the FBI when he spoke with the Russian ambassador before Christmas in 2016. The surveillance itself was odd, as Flynn was working for incoming President Donald Trump on the transition. Flynn discussed sanctions on Russia and, reportedly, a United Nations vote on Israel.
Surveilling the Russian ambassador is not unusual, experts have said, but Flynn’s identity, by law, should have been masked. For some reason, federal officials unmasked Flynn’s identity in transcripts, and informed President Donald Trump that Flynn had misled Vice President Mike Pence about the conversation. The fix was in to dump Flynn and possibly see him indicted, say Flynn supporters such as Roger Stone.
Some would argue that an incoming national security adviser should not discuss foreign policy and disputes with a Russian ambassador during the transition. That could be a violation of the Logan Act, a never-used law passed in 1799, which forbids private citizens from negotiating disputes with foreign states, without authorization. But others, such as former U.S. attorney Joseph diGenova, argue that any member of the transition is a federal government employee, paid by the federal government, and possessing a federal email address.
Flynn had to resign on February 13, less than a month after taking office, after leaks indicated he misled Vice President Mike Pence when he related the conversation. The plea deal on Friday explains he misled FBI agents on January 24.
Flynn has his defenders, though, who say the long investigation into his short-lived activities as national security adviser is a witch hunt.
“So they illegally surveil the incoming national security adviser and use it to set a perjury trap for Flynn, who was engaged in legal activity,” said Roger Stone, one of Trump’s longtime confidants.
The Flynn charge was entrapment, Stone said in a text to LifeZette.
“The FBI is prosecuting Michael Flynn for lying when they gave Hillary Clinton and her inner circle a monumental pass for grossly mishandling classified information, destroying evidence, and … jeopardizing America’s national security.”
Still, the plea deal is another fairly big catch for Robert Mueller, the special counsel of the Department of Justice. Mueller is tasked with investigating Russian hacking into the 2016 Democratic email accounts and systems. But so far, his targets have been Trump campaign associates, such as Paul Manafort, Trump’s former campaign manager, and Rick Gates. The charges against Manafort and Gates have been mostly financial in nature, or involve misleading the FBI, an offense that Andrew McCarthy of National Review calls a “process crime.”
Another indicted Trump aide was George Papadopoulos, a 30-year-old man who was a volunteer on the Trump campaign. He admitted to misleading the FBI.
Yet so far, not one Russian has been named by Mueller, and not a single American has been charged with “collusion” or “conspiracy” with Russians to hack into Democratic email systems. The Holy Grail for Democrats and anti-Trump factions would be to prove the Trump campaign guided the Russians to hack, or disseminate, hacked emails from the Democrats.
But legal experts, such as former Attorney General Michael Mukasey and Alan Dershowitz, note that so-called collusion after the fact — in the dissemination of leaked emails — is not a crime, even if the source of the leaks are foreign. Thus, the crime is the hacking itself. Few deny Russians did hacking, but reports indicate Russians were not directed by anyone in the United States. Foreign hacking into U.S. computer systems is common, as when Chinese hackers, likely Chinese state hackers, broke into the massive data files of the U.S. Office of Personnel Management, in late 2014, and stole information on as many as 18 million government workers.
Mueller is investigating Flynn and other Trump associates as if they did something wrong in relation to the alleged Russian hacking in 2016. That has some pundits puzzled.
“The special counsel investigation is a wild goose chase in search of a crime,” said Adriana Cohen, a columnist for the Boston Herald and a radio talk-show host. “A sketchy probe based off a discredited Russian dossier commissioned and paid for by the Hillary Clinton campaign to be used as a political weapon against the Trump campaign.”
Cohen said the Justice Department gave a huge pass to former Secretary of State Hillary Clinton for not prosecuting her for an illegal email server that processed classified information.
“Worse, the FBI is prosecuting Michael Flynn for lying when they gave Hillary Clinton and her inner circle a monumental pass for grossly mishandling classified information, destroying evidence, and, in the process, jeopardizing America’s national security,” said Cohen. “The entire Russian investigation reeks of partisan politics and should be shuttered immediately. Taxpayers must demand it.”
The special counsel investigation has been criticized for missing the point of the investigation, with Trump defenders saying the whole thing is a transparent attempt to avenge the Democrats’ presidential election loss in 2016, along with the publication of embarrassing emails, posted by WikiLeaks.
“The Flynn plea deal is bizarre and minor in its own right, unless there is something else, because he pleaded guilty to lying about activity that is not illegal,” said Robert Kaufman, a professor of public policy at Pepperdine University. “We do not know, moreover, whether the main focus is President Trump or someone lesser in his entourage such as Jared Kushner. So we are a long way, even stipulating the worst, from anything resembling illegal collusion on the part of the president.”
If Mueller has shown anything, it’s that special prosecutors and independent counsels should be a thing of the past, says Kaufman.
“This entire process is another nail in the coffin illustrating why special prosecutors are a bad way to do constitutional business,” said Kaufman.
(photo credit, homepage images: Michael Flynn, CC BY-SA 2.0, by Gage Skidmore / Donald Trump, CC BY-SA 2.0, by Gage Skidmore ; photo credit, article images: Michael Flynn, by Kristyn Ulanday / Donald Trump, CC BY-SA 2.0, by Gage Skidmore)