How would President Obama be reacting to the collapse of the case against Michael Flynn if Flynn were a black teen?
Picture a racist white FBI agent who hates a black student and became enraged when that teen publicly insulted one of the agent’s close friends. Say the FBI sends two guys over to the teen’s house, claiming it suspects him of being involved in drug trafficking, and starts asking the kid questions in hopes that the kid will lie.
Suppose the FBI does not read the kid his rights before questioning him. Suppose the FBI discourages the kid from hiring a lawyer and tells the kid its investigation is friendly, not an effort to incriminate him. Suppose further that the FBI, after grilling the kid, still doesn’t think he lied (but merely that he forgot details of things he’d been asked about). Suppose the FBI then dragged out the case so long that the kid rang up $5 million in legal bills, then threatened to arrest the kid’s mother. Suppose the FBI withheld exculpatory evidence from the kid’s lawyers and agreed to leave the kid’s mother alone if he pleaded guilty — but didn’t tell the judge about this side deal.
If the teen finally pleaded guilty to a single count of making false statements, would Obama then say, “Aha! Justice is served! The kid admits being guilty!”? If the prosecutors, years later, finally dropped the case against the kid, would Obama say, “You begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk” because he thought the kid deserved everything that had happened to him?
All of the above is pretty much exactly what happened to Michael Flynn. Except the team that went after Michael Flynn didn’t hate him because of racial difference; they hated him because of political difference. The personal insult Flynn delivered was when he publicly went after Hillary Clinton, leading the cries to “Lock her up” at the Republican National Convention. The FBI did indeed fail to advise Flynn that they were targeting him rather than seeking information about phone calls with the Russian ambassador that they had already listened to. They discouraged him from having a lawyer present and didn’t read him anything like the Miranda warning. They did indeed pour so much trouble on Flynn that he amassed some $5 million in legal bills (and had to put his house up for sale). They didn’t initially think that he had lied, but merely had a faulty memory. Instead of threatening his mother, the FBI threatened to indict his son, and someone leaked this to the media so that Flynn’s son’s reputation would be damaged in any event. And the FBI did indeed withhold exculpatory evidence from Flynn’s lawyers.
The effort to nail Flynn fell under the heading of counterintelligence rather than a criminal case, but either way the state must have a legitimate suspicion of underlying wrongdoing before it can start harassing someone. The Obama administration did not have a legitimate basis for going after Flynn, and it’s obvious they didn’t because of two words that are the political equivalent of “That’s what she said” — an old punchline called the Logan Act.
No one has ever been convicted under the Logan Act because the Logan Act is pure bushwa. Everyone in politics knows this. Everyone who merely follows politics from the outside knows this. I know this, and I never spent a day in law school. Do you seriously think lawyer and former FBI director James Comey didn’t know this, or former constitutional law lecturer and president Barack Obama didn’t know this? The discussion between the two of them in the White House on January 5, 2017, about going after Flynn under the Logan Act because he talked to the Russian ambassador does not pass the laugh test. When someone says, “Let’s indict someone under the Logan Act,” he might as well be saying, “Let’s indict someone under the Abracadabra Act.” If the Logan Act were a functioning law, someone would have been convicted under it at some point in the 200 years since it was passed. And Jane Fonda, Dennis Rodman, Jimmy Carter, and John Kerry all would have been busted under it. Moreover, all of these people, unlike Michael Flynn, were not the incoming national-security adviser whose job it is to do things like talk to the Russian ambassador. Constitutional-law professor Jonathan Turley notes, “The use of the Logan Act against the incoming national security adviser would have been not only patently unconstitutional but positively ludicrous.”
A country that respects “the rule of law” has to respect the rule of having a good reason to go after somebody. If there’s no legitimate cause to suspect the target of anything, the state could come after anybody for any reason — because an investigator is racist, sexist, hates Latinos, hates gays, or just has a personal vendetta. The “rule of law” is meaningless if the state sets about nailing somebody on a phony pretext, hoping that the process of investigation will cause some crime such as perjury or obstruction to occur. It’s a terrible affront to “the rule of law” when the law is misused to target an innocent black teenager. But the affront is much worse when it’s a high-ranking public official who gets targeted. The attack on Flynn was an attempt to delegitimize and undercut the lawfully elected Trump administration to aid the prospects of the Democratic Party. This attempt was extremely successful; the Democrats’ media arm, otherwise known as the media, spent nearly three years promoting the bogus theory that the administration and/or Trump himself had carried out illegal acts of collusion with the Russians.
Our political press is remarkably incurious about tracing the chain of motives when it comes to questionable doings by Democrats, but suspecting Obama of being behind the persecution of Michael Flynn is pretty easy when you remember the backstory of these two men’s relationship. Flynn, a registered Democrat, had worked for President Obama as director of the Defense Intelligence Agency for two years, Obama fired him, then Flynn publicly shamed Obama by blasting his ISIS strategy and saying his Iran Deal was terrible. Recall that Obama ran the tightest ship of any president in modern history, demanding and receiving the utmost level of loyalty: Essentially no major leakers damaged his presidency. No one close to him ever published a tell-all memoir undermining him. Then Flynn came along. Obama must have been incensed to see his former official tearing him apart on Fox News, then going full MAGA with his histrionics at the Republican convention, where Flynn was the only major Obama-administration turncoat to speak on Trump’s behalf, and gave perhaps the nastiest speech of the entire affair.
It irked Obama that Flynn might wind up on top, with a plum position in the Trump administration. But Obama couldn’t undermine Flynn by starting a PR campaign against him, because the position of national-security adviser doesn’t require cabinet confirmation. So Obama tried to talk Trump out of hiring Flynn. It must have been painful for Obama to beg for a favor from his worst enemy in order to sabotage another enemy, so he couched the request as friendly advice, as though Obama had any friendly feelings toward Trump. When this failed, Obama’s mind perhaps turned to finding a backdoor means of taking out Flynn.
Did Obama break any laws? Maybe not. Was he part of an unconscionable effort to weaponize the police powers of the state against a political enemy? It sure looks that way. How else do you explain that Comey and Obama just casually discussed using the obviously phony pretext of the Logan Act for going after Flynn in the January 5, 2017, meeting while Sally Yates, the deputy attorney general, sat there in amazement that her own supposed underling, Comey, would cook up something so obviously bogus and politically explosive as this case without telling her?
Put it this way: Knowing of Obama’s interest in these matters, is it plausible that the FBI acted as it did without his approval? If the media were one-tenth as interested in Obama scandals as they are in those relating to Trump, it would be shouting from the rooftops that the real Russia-collusion scandal was the effort to gin up a fake scandal to either damage Trump politically or take him out. As it is, most of the media’s response to the Flynn-Obama debacle has been boredom, shrugging and whataboutism: As Brian Stelter groused on CNN, right-wingers are “treating the Michael Flynn story like it’s a bigger deal than the deaths of 2,000 Americans a day.” You’d think someone who works at a 24/7 media company would understand that more than one story can be hugely important.