RussiaGate – The FBI probe into possible collusion between the Trump campaign and Russia – feels like it happened a lifetime ago, but new revelations in the case against Mike Flynn temporarily brought new attention to this period. While the question of whether or not there was any collusion is a matter that has been dealt with by Bob Mueller’s report, the conduct of the FBI agents conducting the investigation is receiving new scrutiny. Recently released evidence showed that the behavior of the FBI going into the interview was dubious in such a way that it made the Department of Justice drop its case against former Lieutenant General Flynn. This decision is a major reversal more than two years after Mr. Flynn pleaded guilty to the crime of lying against the FBI.
Michael Flynn was appointed by President Trump to the position of incoming National Security Advisor on November 18, 2016. In December, he had a phone call with Russian Ambassador Sergey Kislyak, which was intercepted by U.S. intelligence agencies who routinely monitor the Russian Ambassador. It was this phone call that led the FBI to decide that even though they had not found any evidence of Flynn colluding with Russia, they would not drop the investigation. He was then visited by federal agents for an interview. Supposedly, during this chat the FBI investigators mentioned that if he had represented the U.S. government in any conversation with a representative from a foreign government he would be in violation of the Logan Act – a federal law criminalizing negotiations by unauthorized citizens with foreign governments that have an ongoing dispute with the United States, which has never before been used in criminal prosecution and which Flynn could not have breached as incoming National Security Advisor. This led Mr. Flynn to deny having asked the Russian Ambassador to “refrain from escalating the situation in response to sanctions that the United States had imposed against Russia that same day” and to “delay the vote on or defeat a pending United Nations Security Council resolution.” For these lies, he would first be fired by the Trump administration and later be prosecuted. After years of intense battle in the courtrooms and the real possibility of falling into bankruptcy, Mr. Flynn would eventually plead guilty to lying to the FBI. Part of this plea deal demanded that Mr. Flynn would cooperate fully with Mueller investigation, which he did. In December 2018, Flynn’s attorneys would reveal evidence in court that the former FBI Deputy Director McCabe suggested to Mr. Flynn that should not have a legal representative with him during the questioning that lead to his guilty plea and that the FBI agents from the first interview did not tell Flynn that false statements could be considered a crime. Flynn himself withdrew his guilty plea.
New documents, vindicating the former General’s reversal on his guilty plea, were unsealed on April 29th of this year. These documents show that FBI officials were discussing whether the goal of the original interview would be to “get the truth/admission or to get him to lie, so we can prosecute him or get him fired.” They also show that the interview would be conducted in such a way as to make it seem like it is not an interrogation. This lead the Department of Justice to drop its case with prejudice against Michael Flynn on May 7th. Their filing recounts all of the information above and states clearly that without a legitimate investigative purpose, whether Flynn was lying during his interview was immaterial and that he should have never been prosecuted. After the dismissal of the charges, some critics came forward stating that this – the entrapment – is routine law enforcement interview tactics that by no means undercut General Flynn’s admission. Forgetting that in those cases in which the FBI can use entrapment there should be a legitimate investigative purpose/underlying crime. Kim Strassel from the Wall Street Journal said it perfectly: “As for liberal commentators/legal scholars saying all this is routine, well, let’s sure hope not. The FBI exists to investigate crimes—not create them.”
There is still much unknown about the RussiaGate investigation and many related documents are still not made available to the public. The investigation by John Durhem – U.S. Attorney assigned to the Russia investigation by U.S. Attorney General Barr – will hopefully shed more light on the legality of the collection of intelligence on the Trump campaign. He is in charge of determining whether the government acted lawfully and appropriately when collecting intelligence ahead of the 2016 election.