The common current has been the exposure of highly revealing information that had been hidden from public view. And the full story has yet to be told.
The most important thing to know about the Michael Flynn case is that it is no longer about Michael Flynn. Instead, as Barack Obama said, it is about the rule of law, though perhaps not in the way he meant.
It is an easy prediction that Flynn will not go to prison for the charge to which he originally pleaded guilty. Either presiding U.S. District Court Judge Emmet Sullivan (see video posted below) will end the case, which the Justice Department has already dropped (after some amicus brief grandstanding courtesy of John Gleeson); or the D.C. Circuit Court — perhaps the Supreme Court — will issue a writ of mandamus ordering the charges dismissed; or as a last resort President Donald Trump will pardon Flynn. It may take a while to get to the end of this process, but Flynn will not serve time.
The larger “rule of law” issues have arisen because of the questionable way the Flynn investigation and prosecution has played out, and the motives of those involved. Documents that have been newly released in recent weeks have upended a narrative that the public has been told for years was the truth.
A routine phone call to a counterpart
Flynn pleaded guilty to lying to the FBI about the details of a phone call he made to former Russian Ambassador Sergey Kislyak, in December 2016. The call itself was perfectly legitimate and well within the custom of incoming officials during a presidential transition reaching out to their foreign counterparts. For example, President-elect Obama openly used emissaries and go-betweens to meet with foreign leaders during his transition.
A recent document release revealed that at the time Flynn was interviewed about the phone call, the “Russian collusion” investigation into him dubbed CROSSFIRE RAZOR had already concluded he was in the clear. But the case was kept alive by then-FBI agent Peter Strzok, who had been circulating a 2015 Congressional Research Service white paper on the dormant and probably unconstitutional Logan Act to various Justice Department officials, including former FBI head of counterintelligence Bill Priestap.
We then have Priestap’s newly released handwritten notes on planning the Flynn interview in which he asks, “What’s our goal? Truth/Admission or to get him to lie (about allegedly violating the Logan Act), so we can prosecute him or get him fired?” Flynn’s defense argues this shows the FBI was not so much investigating a case as manufacturing a crime.
This was one of several other due process issues with the Flynn case, particularly the handling of his interview records (the “302s”). One would expect that because Flynn was charged with lying to investigators, the 302s would be centerpiece evidence. Instead, we have learned that these records were edited, misattributed and denied to Flynn’s original defense team before he made his guilty plea.
As well, according to testimony from former FBI Director James Comey, the agents who interviewed Flynn did not think he was lying. However Flynn was ultimately badgered, bullied and broken into his confession by threats against his son from special counsel Robert Mueller’s investigators.
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These are among the facts that caused the Justice Department to drop the Flynn prosecution. That the public is only now learning these salient details is troubling. They have emerged largely due to the efforts of Flynn’s second defense lawyer, Sidney Powell, who had pressed for the release of all exculpatory “Brady” evidence in the case. As late as October 2019, federal prosecutor Brandon Van Grack argued in court that no such evidence existed. But still Sidney Powell persisted, and the truth began to emerge.
Revealing information kept from public
Information declassified by Acting Director of National Intelligence Richard Grenell and released last week raises more questions about the Flynn case. It shows numerous Obama administration officials asking the National Security Agency to “unmask” information concerning Flynn that had been picked up as part of routine NSA foreign surveillance. This unmasking was taking place well before and well after Flynn’s contact with Kislyak. It involved 39 people, ranging from top intelligence officials to ambassadors to outgoing Vice President Joe Biden.
Former CIA Director John Brennan has insisted that these requests were all legal and connected to official duties. Indeed, they would be felonies otherwise. But the public has still not seen the required justification memos connected to the unmasking requests that would explain why the more than three dozen officials needed this information. It also may not be a coincidence that the requests end on Jan. 12, 2017, the same day the Justice Department inspector general announced a review of unauthorized releases of confidential information.
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The common current through this case has been the exposure of highly revealing information that had been hidden from public view. The release of Russian investigation transcripts and documents from the House Intelligence Committee is another case in point. This information had been held back for years while politicians and former government officials were making public claims about evidence of Russian collusion that were directly contrary to what they said under oath.
And the full story has yet to be told. Many more documents have yet to be released, and there is no credible rationale for denying them to the public. Looking forward, we need to know how many people were involved in investigating Flynn, why they were involved, and what they did with the information they were given. We can bet that Michael Flynn will not be serving time, but others may not be so lucky.
James S. Robbins, a member of USA TODAY’s Board of Contributors and author of “This Time We Win: Revisiting the Tet Offensive,” has taught at the National Defense University and the Marine Corps University and served as a special assistant in the office of the secretary of Defense in the George W. Bush administration. Follow him on Twitter: @James_Robbins