Law & the Courts

Flynn: Fact, and Narrative

Former national security adviser Michael Flynn departs with his wife Lori Andrade after his sentencing was delayed at U.S. District Court in Washington, D.C., December 18, 2018. (Joshua Roberts/REUTERS)
The FBI did not treat Flynn fairly, but while the Bureau’s situational ethics leave much to be desired, its aggressive tactics did not violate the law.

So. . . it turns out Michael Flynn was not sentenced on Tuesday.

No sentence does not mean no drama. We were treated to the notoriously unscripted Judge Emmet Sullivan suggesting that Flynn might somehow be guilty of “treason.” Now, I’ll grant you, being an unregistered agent of a foreign power is not a good thing (there’s even a law against it). But it’s tough to fathom how a judge could spin such a thing into treason when (a) the foreign power, Turkey in this case, is a NATO ally (at least technically), (b) General Flynn was not a U.S. government official when he acted as Ankara’s agent, (c) the prosecutor did not think it was an important enough crime to charge against Flynn, (d) Flynn is a decorated 33-year combat veteran who has written a book detailing a strategy for defeating America’s actual enemies, and (e) the prosecutor, in fact, has proposed a sentence of no jail time for the process crime that was actually charged in the case.

After calling a brief time-out in the proceedings, a contrite Judge Sullivan returned to the bench and retracted his loopy treason comments. All in all, it was a disgraceful performance: Flynn’s is not a complicated case, yet Sullivan failed to have a grip on basic facts. Still, before postponing the former national-security adviser’s sentencing, Sullivan — however unwittingly — performed a useful service in deconstructing the competing Flynn narratives.

Narrative overwhelms fact in modern political discourse. Maybe this is a function of the information age and modern news programming: Information gushes at people like an open hydrant. They feel the need to process information thematically, if they are to process it at all. And the lines between fact-reporting and opinion-analysis have blurred.

In my weekend column, I contended that there are two narratives of the Flynn episode, and that neither is accurate. Flynn fans say he has been railroaded, that the case against him is entirely fabricated, and that he was extorted into pleading guilty in order to protect his family from further ruin. Flynn critics counter that he lied to the FBI, and that a longtime military officer and national-security pro who ran the Defense Intelligence Agency is well aware that it is a crime to lie to the FBI, case closed.

The implication that this is an either-or proposition is simply wrong. Neither life nor the law works this way. It’s complicated. For that reason, I can pile a stack of cases a couple of miles high in which judges repeat the adage that criminal trials, like the investigations that generate them, are never perfect. They cannot be. They are imperfect processes, involving fallible human beings acting under high anxiety.

Consequently, there are innumerable fact patterns in which law-enforcement agents acquire incriminating evidence through sharp tactics. These ploys are not admirable, and in many situations they ought to be avoided, but they are not illegal, much less unconstitutional. It is a fact of life: If we are going to catch shrewd, insulated criminals, we have to give law-enforcement a wide berth that includes using deception to gather evidence — undercover agents, covert surveillance, eavesdropping, pretextual interviews, etc. But those tactics, even though lawful, are often overkill when police use them against people who are not dangerous, hardened criminals.

The Flynn interview is troubling. He should not have been under investigation. If the FBI wanted to interview him on January 24, 2017, a request should have been communicated to the White House counsel by the Justice Department. The FBI decided to bypass both DOJ and the White House. The Bureau exploited the chaos of the second full work day of a new administration, contacted Flynn directly, and actively discouraged him from notifying the White House counsel. They intentionally avoided going through proper channels.

If properly advised that the FBI wanted to interview Flynn, the White House counsel would have asked why. Was Flynn a criminal suspect? Was he a witness in a foreign counterintelligence investigation? On what basis did the FBI seek to interview the national-security adviser about conversations he appropriately had with a foreign government while Flynn was a transition official designated to become the president’s top adviser on foreign threats to U.S. interests?

If the FBI maintained that the interview was part of the Russia counterintelligence probe, the White House counsel would have made certain that he or a lawyer on his staff was on hand. To repeat a fact that is too often overlooked, counterintelligence investigations are done for the president’s benefit, to help him carry out his national-security mission. They are not criminal investigations, geared toward building a prosecution against a target. If the FBI’s pretext for interviewing Flynn was counterintelligence, there would have been nothing inappropriate about a White House inquiry into the details. Meantime, Flynn could have been advised of his rights and invited to have his own attorney present if he wished.

The White House counsel would also have determined that the FBI already had recordings of the Flynn-Kislyak conversations about which they wanted to question Flynn. If the real point of the interview was for the Bureau to better understand those conversations, arrangements would have been made for the FBI to play the recordings for Flynn. Agents would have walked him through the conversations, asking, “What did this mean, what did that mean?” This is common when the good-faith purpose of an interview is intelligence gathering.

To the contrary, what if the FBI said it did not want to play the recordings for Flynn, just to ask him about them? Then the White House counsel and Flynn would have known that the purpose of the interview was to try to catch Flynn in a lie for prosecution purposes. Very likely, the interview request would have been rejected, and the attorney general — whom the FBI had elected not to alert about the Flynn interview until it was too late to nix it — would have been asked to explain the purportedly valid predicate for a criminal investigation of Flynn. At a minimum, Flynn would have had an opportunity to consult a lawyer and decide whether, under the murky circumstances, he wanted to risk speaking to the FBI.

When asked about the FBI’s conduct, former director James Comey changes the subject, insisting that Flynn knew the rules. But that isn’t all that matters, is it?

Put Flynn aside. Let’s say the FBI wanted to interview a hardened criminal in hopes of getting incriminating statements. If the FBI tried to pull this off by not giving the suspect Miranda warnings, it would be irrelevant that the suspect had previously been arrested so many times he could recite Miranda warnings from memory. The FBI knows that it must honor the proper process — i.e., be sensitive to the rights of the suspect — or the evidence will be suppressed. The Bureau would not be heard to say that the suspect knew he didn’t have to talk to the FBI.

The FBI did not play it straight with Flynn, and it worked. They got statements they could use to prosecute him. He was not in custody, so he was not entitled to be warned about the potential perils of speaking to investigators. He was not entrapped — the FBI just asked him questions; yes, the agents created an opportunity for him to commit wrongdoing, but they did not entice him into it. It was a lousy way to deal with Flynn and a shocking way to deal with a national-security adviser inside the White House. But it was not illegal. It does not excuse Flynn for lying to the agents, which he admits doing.

At Tuesday’s hearing, Judge Sullivan pressed Flynn in a revealing way. In light of his apologists’ huffing and puffing, the judge invited Flynn to put his money where their mouths have been: Formally seek to withdraw his plea, posit an unambiguous claim that he had not lied, argue that he had been entrapped. He declined. When push came to shove, Flynn wanted to keep his plea deal because he knows it spares him from prosecution for other alleged crimes — including the charges of acting as an unregistered agent of Turkey, which the Justice Department has just brought against two men Flynn cooperated against.

At the same time, Sullivan’s despicable invocation of “treason” invited us to consider how far removed Flynn’s misconduct is from the rationale for Mueller’s investigation: The suggestion that the Trump campaign — very much including Flynn, who has bled on the battlefield for this country — conspired with Russia against the United States, hacking Democratic email accounts, and stealing an election.

The FBI did not treat Flynn fairly. It is breathtaking to hear former director Comey brag about how he “got away with” dodging protocol in order to interrogate him. Nevertheless, while the Bureau’s situational ethics leave much to be desired, their aggressive tactics did not violate the law. Like the rest of us, Flynn is blessed to live in a republic in which we have a right to refuse to speak to police. If you choose to speak, it is your duty to speak honestly. He failed his duty. He may have walked into a perjury trap, but it wasn’t an entrapment.

At the same time, if you find yourself talking about treason and General Mike Flynn in the same sentence, you ought to start wondering where you went wrong. I suspect it’s when you decided narratives were more useful than facts.

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