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Thomas Gallatin / Dec. 14, 2018

Did the FBI Set Up Michael Flynn?

A judge demands Mueller and DOJ turn over FBI documents related to its Flynn interview.

Did the FBI mistreat former National Security Advisor Michael Flynn by intentionally setting up a perjury trap and pressing him to walk into it unaware? That appears to be what U.S. District Judge Emmet Sullivan is seeking to determine after he surprisingly demanded that Robert Mueller and the Justice Department provide additional documents related to the FBI’s January 2017 interview of Flynn.

Flynn’s legal team’s argument is that the FBI failed to alert Flynn to the criminality of lying to investigators and that then-FBI Deputy Director Andrew McCabe pressured agents to set up an interview that precluded Flynn from having an attorney present. That was enough to prompt Sullivan to seek answers before sentencing Flynn for lying to the FBI.

The actors in this whole event should raise a few eyebrows. The now-fired anti-Trump FBI agent Peter Strzok was one of the two agents in the interview that the also now-fired McCabe set up. Clearly, Flynn believed the meeting was not intended as an interrogation of any sort, as he quickly agreed to meet with the agents the same day as he received the call from McCabe. Flynn even gave them a tour of the West Wing. And, of note, those agents described Flynn as “unguarded,” “relaxed and jocular,” as well as saying they “didn’t think he was lying” and that he “clearly saw the FBI agents as allies.”

Importantly, Flynn was never found to have committed any crime related to collusion with Russians. Instead, as Mark Alexander notes, Mueller has only “accumulated some ‘process crimes,’ most notably perjury charges related to the testimony of George Papadopoulos, Michael Flynn, Paul Manafort, and Trump’s former personal lawyer, Michael Cohen. … There is nothing that remotely establishes Russian collusion with the Trump campaign. Nothing.”

Of most significance is the different treatment Flynn received to that of Hillary Clinton, who showed up with nine lawyers to her interview with FBI agents. Or consider George Papadopoulos, who was given explicit warnings by agents of the criminality of perjury and was allowed to have attorneys present.

Interestingly, The Federalist’s Margot Cleveland points out, “The most recent iteration of Sullivan’s standing entered in the Flynn case required Mueller’s office to produce ‘any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.’ The order further required the government to submit to the court any information ‘which is favorable to the defendant but which the government believes not to be material.’” Sullivan may smell a rat.

Mueller and the DOJ have until 3:00 p.m. today to produce for the court the requested documents. Hopefully, those documents will shed a little more light on this twisted web of legal gotcha. And for Flynn, who has lost almost everything in this politically motivated witch hunt, there could be at least a little redemption in the end.


Update

Mueller responded to Flynn’s allegation that he was tricked into lying to the FBI, writing to Judge Sullivan, “Nothing about the way the interview was arranged or conducted caused the defendant to make false statements to the FBI on January 24 minimize the seriousness of those false statements to the FBI.” He added, “The defendant chose to make false statements about his communications with the Russian ambassador weeks before the FBI interview, when he lied about that topic to the media, the incoming Vice President, and other members of the Presidential Transition Team.”

However, George Washington University law professor Jonathan Turley saw this differently — as a clear FBI setup. He argued that McCabe’s call to Flynn was “highly irregular,” as was the explanation given by then-FBI Director James Comey that he “just sent a couple guys over” rather than following the proper channels and contact the White House counsel to set up a meeting with Flynn. Turley called Flynn’s indictment “a canned hunt,” adding, “They put this guy in a cage and they shot him.”

Flynn does admit to lying, though what he lied about was not anything illegal. He lied about not having communicated with Russian ambassador Sergey Kislyak. Once again, the hammer came down on Flynn for failure to tell the truth about engaging in completely legal activity. But why was he motivated to lie? Andrew McCarthy suggests, “Flynn had a motive to lie. This brings us back to the Obama administration’s unjustifiable decision to investigate him. Obama’s Justice Department let it be known that a basis for its investigation was the preposterous Logan Act (a moribund, unconstitutional law that purports to prohibit private citizens from freelancing in foreign relations, and that has never been used to convict anyone in over 200 years on the books). Moreover, Obama officials leaked to the media that the ‘collusion’ theory included the suspicion that Trump had cut a corrupt quid pro quo deal to drop Obama’s sanctions in return for Russia’s assistance to Trump’s campaign.”

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