Law & the Courts

The Corner

Why Was Flynn “Grilled” by the FBI?

Dan and Rich have extensively discussed former FBI director James Comey’s written submission of testimony. For now, I would just like to add a point about former national security adviser Michael Flynn — the investigation of whom is the subject of the “obstruction” debate. 

We learn from Comey’s testimony that the thrust of the criminal investigation of Flynn involves false statements that he is suspected of making to the FBI, regarding his communications with Russian ambassador Sergey Kislyak. In discussing his February 14 meeting with the president, Comey avers (my italics):

I had understood the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December. I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign. I could be wrong, but I took him to be focusing on what had just happened with Flynn’s departure and the controversy around his account of his phone calls. 

With a grand jury considering evidence in Virginia, there has been speculation that Flynn’s potential criminal problems arise out of the security firm he started after retiring from the military: Did he fail to disclose to the Defense Department speaking fees he collected in a 2015 trip to Russia? Did he fail to register as a foreign agent with the Justice Department for work that benefitted the government of Turkey?

It is now clear that, while these transactions are no doubt being scrutinized, what’s driving the train is a potential false statements charge, under Section 1001 of the federal penal code (a felony punishable by up to five years’ imprisonment). 

On that, I hate to say I told you so. 

Back in February, I penned a column asking, “Why Was the FBI Investigating General Flynn?” The upshot was that there appeared to be no reason to investigate Flynn as a criminal suspect, and, in particular, to have subjected him to an FBI interrogation after Flynn’s conversations Kislyak. Because Kislyak was being surveilled as a foreign agent of Russia, the FBI already had recordings of these conversations. It was perfectly appropriate for Flynn, as Trump’s prospective national security adviser and a top official in the Trump transition, to be engaging in conversations with foreign counterparts — the point of the transition is to allow the new administration to hit the ground running. Moreover, as an unlawful classified leak to the New York Times made clear, the FBI had determined there was no corrupt quid pro quo in Flynn’s discussion with Kislyak — Obama advisers, according to the Times, pressed the Bureau on whether Flynn made any assurances to Kislyak about withdrawing the sanctions that President Obama had imposed, and the Bureau said no.

Yet, Flynn was treated as if he were a suspect. So hot was the Obama Justice Department to make a case on him, it apparently even considered charging him with a violation of the Logan Act. That is a purported prohibition against freelance engagement in foreign policy by American citizens. Its constitutionality is so dubious that it has never been successfully prosecuted (and almost never invoked) in the two centuries it has been on the books.

The question here was whether the Justice Department wanted Flynn interrogated in the hope that he would not truthfully describe the conversation with Kislyak. Since they had a recording, any inaccuracy could then be charged as a false statement — a classic “process crime.”

I subsequently put it this way:

The government is not supposed to use its FISA surveillance authority to make criminal cases, yet it seems to have been more than willing to ignore that impediment to try to make a case on Flynn. As I’ve previously detailed, the Times report elaborates that the FBI did not just record Flynn’s communications and consult “Obama advisers” on the possibility of charging Flynn – a White House intrusion into law-enforcement that the media would have turned into Watergate if done by a Republican administration. The FBI is also said to have “grilled” Flynn about his communications with Kislyak. Given that the FBI recorded the communications and obviously doesn’t need Flynn to tell them what was said, any competent lawyer would have to wonder whether they “grilled” Flynn in the hope that he would lie about what was said, opening him up to a charge of false statements to investigators – a felony. 

Is this what happened? It is a question worth pursuing, especially given that the Justice Department and FBI went out of their way not to make a case on Hillary Clinton and her subordinates, who mishandled classified information and destroyed government files. 

To be clear, I do not endorse the misleading of investigating agents. We live in a country where we are privileged to refuse to speak to the police. If you choose to speak, you are obliged to be truthful. I have no idea whether Flynn lied or not; perhaps we will learn at some point. 

Nevertheless, law-enforcement is not supposed to subject a person to the processes of a criminal investigation absent a good faith belief that a crime may have occurred. It is abusive to interrogate people, not to uncover a reasonably suspected crime, but to create a new crime. 

It is worth asking again: Why was General Flynn, the incoming national security adviser, “grilled” by FBI agents?

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