Law & the Courts

Why Was the FBI Investigating General Flynn?

Flynn at Trump Tower, November 2016 (Reuters photo: Mike Segar)
There appears to have been no basis for a criminal or intelligence probe.

National Security Adviser Michael Flynn was dismissed amid a torrent of mainstream-media reporting and disgraceful government leaks (but I repeat myself). Among the most intriguing was a New York Times report the morning after Flynn’s resignation, explaining that the former three-star Army general and head of the Defense Intelligence Agency was “grilled” by FBI agents “about a phone call he had had with Russia’s ambassador.”

No fewer than seven veteran Times reporters contributed to the story, the Gray Lady having dedicated more resources to undermining the Trump administration than the Republican Congress has to advancing Trump’s agenda. Remarkably, none of the able journalists appears to have asked a screamingly obvious question — a question that would have been driving press coverage had an Obama administration operative been in the Bureau’s hot seat.


On what basis was the FBI investigating General Flynn?

To predicate an investigation under FBI guidelines, there must be good-faith suspicion that (a) a federal crime has been or is being committed, (b) there is a threat to American national security, or (c) there is an opportunity to collect foreign intelligence relevant to a priority established by the executive branch. These categories frequently overlap — e.g., a terrorist will typically commit several crimes in a plot that threatens national security, and when captured he will be a source of foreign intelligence.

Categories (a) and (b) are self-explanatory. It is category (c), intelligence collection, that is most pertinent to our consideration of Flynn.

At first blush, this category seems limitless: unmooring government investigators from the constraints that normally confine their intrusions on our liberty (e.g., snooping, search warrants, interrogations) to situations in which there is real reason to suspect unlawful or dangerous activity. Intelligence collection, after all, is just the gathering of information that can be refined into a reliable basis for decisions by policymakers.

As we shall see, it is not limitless. But we should understand why it needs to be broad.

Most people think of the FBI as a federal police department that does gumshoe detective work, albeit at a high level and with peerless forensic capabilities. That, indeed, is how I thought of the FBI for my first eight years as a federal prosecutor, before I began investigating terrorism cases and became acquainted with the FBI’s night job. Turns out the FBI’s house has a whole other wing, separate and apart from its criminal-investigation division. Back in pre-9/11 days, this side of the house was called the foreign counter-intelligence division. Now, it is the national-security branch. Whatever the name, it is our domestic security service, protecting the nation against hostile foreign activity — espionage, other hostile intelligence ops, terrorism, acquisition of technology and components of weapons of mass destruction, and so on.

Most of the national-security branch’s work is done in secret, never intended to see the light of day in courtroom prosecutions. In some countries, including Britain, domestic security is handled by an agency (MI5) independent of domestic law enforcement (MI6). In our country, it is handled by a single agency, the FBI, based on the assumption (a sound one in my opinion) that the two missions are interrelated and that one can leverage the other more easily under one roof. 

The FBI also has the foreign-intelligence gig because the Bureau is fully constrained by the Constitution and other federal law. Our other intelligence agencies — the best example is the CIA — are prohibited from “spying” inside the United States, largely because their foreign operations are outside the jurisdiction and fetters of American law. We understand that our security requires that our domestic security service have wide intelligence-gathering latitude; but we do not permit it to be limitless — it must respect our constitutional rights.

So how do we make sure the FBI does that if we’re giving it license to investigate people even when it does not suspect a crime or a threat? We do it by dividing the subjects of its intelligence investigations into three classifications and giving the FBI commonsense authority to deal with each.

1. Aliens acting as overt foreign agents

The first classification, and the easiest to grasp, consists of aliens who overtly work as foreign agents. Such a person — for example, Sergey Kislyak, the Russian ambassador with whom General Flynn communicated — is a non-American (i.e., one who does not have the full-blown constitutional rights of an American citizen) and is openly acting on behalf of a foreign regime — in the case of Russia, a regime notoriously hostile to U.S. interests. Clearly, there is no problem with his being targeted by the FBI for intelligence-gathering purposes.

Note that, because the FBI is constrained by federal law, even overt foreign operatives have significant protections. It is still necessary, for example, for the FBI to get a judicial warrant to search a foreign agent’s home or intercept his phone and e-mail communications — and more on those warrants momentarily. Within the wide parameters of federal law, though, the FBI is free to monitor an overt foreign operative’s activities very aggressively, even when there is no suspicion of criminal wrongdoing or national-security threats. The presumption that our government is entitled to observe what foreign governments are up to on our soil is sufficient — and, of course, American officials operating overseas are routinely monitored by host governments (most of which are not so fastidious about civil liberties).

2. Americans acting as foreign agents — overt and covert

The second classification is more complicated: American citizens who act as agents of foreign powers. Contrary to the legal illiteracy dismayingly peddled by Fox News from time to time, one can be an American citizen and nonetheless be an agent of a foreign power, and therefore subject to investigation under the FBI’s foreign-intelligence-gathering authority, even if there is no suspicion of criminal wrongdoing.

One can be a U.S. citizen and also an agent of a foreign power, and therefore subject to investigation under the FBI’s foreign-intelligence-gathering authority, even if there is no suspicion of criminal wrongdoing.

The easy example in this second classification is an American who openly and formally declares himself to be a foreign agent. Many Americans do work for and advocate on behalf of foreign regimes. Our law mandates that they register with the Justice Department. They must make periodic disclosures detailing their relationship with the relevant foreign country, their activities on its behalf, the financial arrangements, and so on. The FBI is free to investigate such American foreign agents just as it investigates alien foreign agents; in fact, the point of the disclosure requirements is to make the foreign-intelligence something our government can passively collect rather than expend investigative resources to gather.

The more complex example is Americans who act as covert foreign agents. The detection of these Americans is obviously tougher but of greater urgency. After all, if their activities on behalf of foreign powers were benign, they would not be acting covertly — and here it is worth pointing out that, under federal law, “foreign powers” are not just other countries; they include international terrorist organizations. Some of the terrorists I prosecuted in the 1990s, for example, were American citizens (some born as such, some naturalized) who were operatives of foreign jihadist cells.

Whether they are Americans or aliens, covert foreign agents merit heightened scrutiny, such as eavesdropping on phone calls and e-mails, or “sneak and peek” searches (when agents covertly look around a home or office, maybe take pictures and plant bugs, but don’t leave evidence that they’ve been there). To get that kind of authority, as presaged above, the FBI and Justice Department must seek warrants from the secret court established by the Foreign Intelligence Surveillance Act of 1978 (the FISA Court).

This requires a showing of probable cause. Significantly, this does not mean probable cause that a crime has been or is being committed — the traditional law-enforcement standard. Under FISA, the government must show probable cause that the target of its surveillance is acting as an agent of a foreign power. Libertarians complain that this is a lower standard, a sinister pretext to make it easier to hassle Americans in the absence of evidence that they’ve broken the law. But it is not a lower standard; it is the same standard (probable cause) for making a different showing (that one is a foreign agent). If you are a covert foreign agent, it should be easier for the FBI to investigate you, especially when it is doing so under judicial oversight.

3. Americans who are not foreign agents but may possess foreign intelligence

Covering overt and covert foreign agents does not complete the FBI’s intelligence mosaic. There are many Americans who do not act on behalf of foreign regimes but who are possessed of information that would be of great value to the FBI in understanding what foreign powers are up to — owing, for example, to their travels, business dealings, or academic concentrations. Plainly, we want the FBI to be able to seek this information. Yet we don’t want these Americans to be investigated — they should be thanked, not hassled. So how should our fellow citizens in this wholly innocent classification be handled? The FBI’s guidelines for domestic operations strike the right balance: “The FBI should . . . operate openly and consensually with U.S. persons to the extent practicable when collecting foreign intelligence that does not concern criminal activities or threats to the national security.”

Openly and consensually. That means FBI agents should tell Americans in this “non-foreign agent” classification that they are not under investigation or suspicion, and that their voluntary cooperation is requested to help the FBI protect the country against potentially harmful foreign activities. They should not be “grilled” as if they were suspects.


General Flynn’s situation

That brings us back, finally, to General Flynn. Anonymous intelligence officials (a category that may include the FBI — though we do not know who the leakers are) outrageously revealed to the New York Times that Flynn was subjected to FBI interrogation (“grilled,” the Times says) and that the Justice Department suspects that Flynn did not provide truthful, accurate information. That does not sound like a cordial, “open and consensual” conversation. It sounds like an investigation.

Why would Flynn be the subject of an investigation by the FBI and the Justice Department?

We are told that the FBI was monitoring the phone calls of Russian ambassador Kislyak under FISA. Makes sense — he’s an overt foreign agent from a hostile government. Flynn called Kislyak on December 29, 2016. It was not a nefarious communication: Flynn was a top adviser of then-president-elect Trump, a part of the Trump transition team, and just three weeks from formally becoming the new president’s national-security adviser. His communications with Kislyak were just some of the many conversations Flynn was having with foreign officials.

FBI agents did not need to ‘grill’ Flynn in order to learn about the call — they had a recording of the call.

The call to Kislyak, of course, was intercepted. No doubt the calls of other American officials who have perfectly valid reasons to call Russian diplomats have been intercepted. It is the FBI’s scrupulous practice to keep the identities of such interceptees confidential. So why single Flynn out for identification, and for investigation? FBI agents did not need to “grill” Flynn in order to learn about the call — they had a recording of the call.

They also knew there was nothing untoward about the call. We know that from the Times report — a report that suggests an unseemly conjoining of investigative power to partisan politics.

The report informs us that as the FBI set its sights on Flynn, its agents were consulting with “Obama advisers.” Interesting, no? Ever since Hillary Clinton’s loss to Donald Trump on November 8, Obama’s Democratic party had been pushing a narrative that “Putin hacked the election.” The narrative continues to have two major flaws. First, while the Russian dictator may have preferred Trump to Clinton, there is no evidence that his Russian regime did anything to compromise the voting process. The media-Democrat complex has desperately sought to obscure this problem by emphasizing Putin’s likely role in publicizing embarrassing Democratic e-mail communications. Notwithstanding Democratic talking points, that is a far cry from “hacking” the voting process.

The second flaw is that, although Trump has made disturbingly flattering remarks about Putin, there is no evidence his campaign has given or promised Russia any actual accommodation in exchange for Putin’s favor. Democrats hope to erase this problem by finding something, anything, that could be spun as a quid pro quo. Obviously, they hoped the Flynn–Kislyak conversation would answer their prayers. No such luck. As the Times puts it:

Obama officials asked the FBI if a quid pro quo had been discussed on the call, and the answer came back no, according to one of the officials, who like others asked not to be named discussing delicate communications. The topic of sanctions came up, they were told, but there was no deal.

Asked not to be named discussing delicate communications. That’s a good one. Let me translate: The officials don’t want you to know who they are because they are corrupt — (a) FISA intercepts are classified, so disclosing them to the press is a crime; (b) by revealing the Flynn–Kislyak conversation to the press, the “officials” inform the Russians that whatever countermeasures they are taking against U.S. surveillance have failed, assuring that the Russians will alter their tactics, making the job of our honorable intelligence agents more difficult; and (c) the FBI’s investigative powers are not supposed to be put in in the service of a political party’s effort to advance a partisan storyline, like “Putin hacked the election.”

So since there was no impropriety in Flynn’s call to the Russian ambassador, why did the Bureau continue investigating Flynn? Why did FBI agents interrogate him?

Misleading statements by presidential administrations are not grounds for FBI investigations. They are left to the political process to sort out, and we don’t want the FBI turned into a political weapon.

According to press reports of other rogue intelligence leaks, the FBI was sicced on Flynn after Trump officials gave inaccurate public statements about his conversation with Kislyak, to wit: They said that it had not touched on the punitive actions President Obama took against Russia on the same day the conversation took place, when in fact there had been some discussion of that topic — which the FBI and Justice Department knew from the recording. Specifically, Flynn denied any discussion of these sanctions, unnamed Trump officials denied it to the Washington Post, Vice President Pence denied it in a CBS interview shortly before the inauguration, and finally White House spokesman Sean Spicer denied it again on January 23. According to the Times, it was the Spicer denial that triggered the FBI’s interrogation. It was as if the Bureau and Justice Department intentionally waited to pounce until Trump was in power — which meant that any misstatement could now be framed as a false representation by the sitting president.

But just ask anyone who knows that you can’t keep your health-care plan and your doctor if you like them, that the Benghazi massacre was not caused by a video, that the IRS really did harass Americans over their political beliefs, and that Iran will be allowed to develop nuclear weapons. Anyone who knows those things — that would be all of us — also must know that misleading statements by presidential administrations, even egregious ones, are not grounds for FBI investigations. They are left to the political process to sort out, and we don’t want the FBI turned into a political weapon.

So how come the FBI got involved here?

Is the FBI saying that Mike Flynn is an agent of a foreign power? A covert Russian operative? That would be absurd. As I’ve detailed, Flynn is on record — unambiguously, in the core theme in his bestselling book — urging Americans to view Russia as an implacable enemy of the United States that must be checked. Now, are you unhappy — as I am unhappy — with the Trump administration’s blandishments toward the murderous, anti-American Putin regime? Sure . . . but that does not make Flynn and other Trump officials Russian agents — any more than Obama is an Iranian agent. Again, political disagreement is not a rationalization for drawing a ridiculous legal conclusion (“maybe he’s a ‘foreign agent’”) as a pretext for an investigation by the FBI.

Fear of blackmail? That is a theory purportedly advanced by former acting attorney general Sally Yates, an Obama political hack who was eventually fired for insubordination by Trump (who had foolishly retained her). The blackmail theory is almost too stupid to regurgitate. If you can follow this, the idea is that the Russians knew that Flynn withheld information about his Kislyak call from the Trump administration and was therefore vulnerable to extortion — i.e., the Russians could expose his concealment if he didn’t do their bidding. It should go without saying that blackmail works only if the compromising information is not in the possession of the aggrieved party. Here, the United States — i.e., the Trump administration itself — had a recording of the Flynn–Kislyak call, a fact that both Russia and Flynn (who is deeply versed in intelligence craft) had to know was highly likely.

Finally, there’s Flynn’s supposed potential criminal violation of the 1799 Logan Act. Recall what we said at the start: The FBI’s criminal investigation and domestic security functions overlap. If there is not a valid foreign-intelligence basis to investigate someone, a potential law violation could do the trick. But . . . the Logan Act? Are you kidding?

The statute is a discredited relic of the President John Adams administration’s over-criminalization of political speech on the grounds of its purported seditiousness. It is a highly dubious prohibition against foreign-policy freelancing by American citizens acting without executive-branch permission. As Jeremy Duda comprehensively explains in the Washington Post, in its 218-year history, there has been just a single Logan Act prosecution, ever — an unsuccessful, aborted charge brought in 1803 by an Adams-appointed U.S. attorney.

It is not enough to say it is ludicrous to contemplate a Logan Act prosecution against a transition official who was the incoming national-security adviser over a phone call with a foreign ambassador. Beyond that, we must refer to the high-profile July 2016 press conference held by FBI director James Comey.

In contrast to General Flynn, as to whom there is no evidence of criminal wrongdoing, there was a Mount Olympus of damning proof that Hillary Clinton committed felony violations of a law against mishandling classified information. Yet Director Comey concluded that “no reasonable prosecutor” would consider indicting Mrs. Clinton. Why? Because behavior of the type in which she engaged is never prosecuted. Now it happens that Comey was wrong about Clinton — to make his assertion, he had to paint a narrowly skewed picture of her misconduct and ignore several prosecutions of military officials for far less serious violations. Nevertheless, he does run the Bureau, and so we must assume that his explicit guidance governs its investigative standards: “Responsible decisions . . . consider the context of a person’s actions, and how similar situations have been handled in the past.”

If that is the standard, there was no conceivable chance that Flynn could ever be prosecuted for a Logan Act violation. Using the Logan Act as a pretext for interrogation would have been improper.

And Flynn is not a foreign agent.

And there was no need to “grill” him over the contents of a conversation of which the FBI and Justice Department already had a recording.

And the FBI has no business probing the veracity of public statements made by presidential administrations for political purposes — something it certainly resisted doing during the Obama administration.

There appears to have been no foreign-intelligence or criminal-investigative purpose served by the FBI’s interrogation of General Flynn. It is easy to see why Democrats would want to portray Flynn’s contact with the Russian ambassador as worthy of an FBI investigation. But why did the FBI and the Justice Department investigate Flynn — and why did “officials” make sure the press found out about it?


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