Law & the Courts

Yes, the Flynn Dismissal Upholds the Rule of Law

Michael Flynn at the White House, February 1, 2017. (Carlos Barria/Reuters)
The Flynn prosecution was a transparent attack on the rule of law.

‘There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free,” former president Barack Obama reportedly told members of the Obama Alumni Association. “That’s the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk. And when you start moving in those directions, it can accelerate pretty quickly as we’ve seen in other places.”

This is, at best, shameless projection.

We now know that the Obama administration engaged in unprecedented abuses of power, not merely in its persistent attempts to circumvent the other branches of the United States government, but in its weaponizing of government institutions for partisan ends, including our intelligence agencies.

Flynn, notwithstanding Obama’s contention, was never charged with “perjury” — a crime which entails lying under oath. Flynn faced trumped-up charges related to a conversation in which he allegedly misled FBI agents. Flynn, who didn’t even know he was under investigation, was entrapped by agents conducting an inquiry devoid of any credible evidence.

The Obama administration already had recordings of Flynn’s calls with the Russian ambassador Sergey Kislyak, and knew that the incoming national-security adviser, who spoke to numerous heads of state, did not undermine American interests — which often change, and are a matter of interpretation — nor had he agreed to drop Russian sanctions on Donald Trump’s behalf.

Not even the agents who conducted the interview believed that Flynn had willfully intended to deceive them. Flynn was only charged ten months after the conversation, and only to keep the bogus Russia collusion investigation going.

Even then, the FBI hid exculpatory evidence from Flynn and his lawyers, as Obama’s allies in the Trump administration and Mueller’s deputies continued to pretend that the former general was a linchpin.

Flynn initially pleaded guilty because he was facing bankruptcy and threats that his son would be prosecuted for unrelated crimes. Of course, even if Flynn had lied about an innocuous and complete legal conversation with the Russian ambassador in the midst of hysterical partisan-fueled media firestorm over “collusion,” it would have been irrelevant.

Considering these facts, it’s unsurprising that the Justice Department dropped its case against Flynn “with prejudice.” U.S. attorney Jeffrey Jensen found that investigation was “untethered to, and unjustified by, the FBI’s counterintelligence investigation.”

Jensen could have added that the Flynn prosecution was a transparent attack on the rule of law.

The Obama administration and its allies had attempted to smear a decorated former general as a seditious operative by ensnaring him in a preposterous violation of the Logan Act — a 1799 law that criminalizes negotiation by unauthorized citizens with foreign governments, and has never been used successfully against any citizen.

This effort seems especially outlandish when one considers that even as Flynn was being prosecuted, Obama administration officials such as John Kerry were meeting with geopolitical foes from Iran and brazenly negotiating American foreign policy.

There is, regrettably, much precedent for law enforcement engaging in strong-arm tactics to intimidate Americans into accepting plea deals for various reasons. Most of those victims don’t have the legal or financial wherewithal to fight back.

There is no recent precedent, however, of an administration opening a criminal investigation into its political rivals during a presidential election. There is no precedent of basing that flimsy investigation on “misleading and inaccurate” information derived from a fabulist document like the Steele Dossier, paid for by the Democratic Party and itself larded with Russian disinformation. There is no precedent of an administration — and later its allies — spying on its political enemies in a presidential campaign, utilizing “fraudulent” proof, and purposely withholding “contradicting” evidence.

And Obama claims he’s worried about institutional norms?

Last week, Representative Adam Schiff, who has been flagrantly lying about possessing Russia collusion evidence for years, has finally forced to release transcripts of House Intelligence Committee–led investigation into Russian interference. The transcripts show that Obama-era officials — when under oath, rather than on TV — possessed no evidence of any criminal conspiracy. This includes former director of national intelligence James Clapper, who, let’s not forget, spied on the American people through a domestic-surveillance program and then lied about it under oath to Congress. Obama let him get off “scot-free.”

It’s no surprise that the Mueller investigation, despite its best efforts, couldn’t come back with a single indictment against anyone in the Trump administration for criminal conspiracy with Russia during the 2016 campaign. Then again, Obama allies succeeded in overwhelming our news coverage with conspiracy theories, and persuaded millions of gullible voters that the Russians had stolen the election. Those who work to undermine the peaceful transition of government power are the ones attacking the rule of law.

Obama, incidentally, is also wrong that Americans can’t point to any precedent of someone perjuring themselves and getting away with it. We’ll always have Bill Clinton. The revisionist tale we hear these days is that Clinton “lied about sex.” Sex might have been the immediate topic of the question. Yet Clinton lied not only to avoid the embarrassment and political ramification of his actions, but also to obstruct a grand jury investigation into Paula Jones’s sexual harassment lawsuit.

Clinton got off scot-free for his abuse of power. The question now is: Will those who conceived and executed the Russia-collusion swindle escape scot-free as well?

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