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DAMNING NEW EVIDENCE FROM FBI’S PURSUIT OF MICHAEL FLYNN. The documents just keep coming in the fight over the Justice Department’s effort to drop the charges against first Trump national security adviser Michael Flynn.
Flynn pleaded guilty to lying to investigators in a January 24, 2017 White House interview. In the first months after the interview, the FBI decided not to pursue Flynn. But then special counsel Robert Mueller was appointed to investigate allegations the Trump campaign colluded with Russia to fix the 2016 election. Mueller’s aggressive new team pulled the Flynn case off the shelf and threatened him with prosecution in an attempt to pressure him to testify against President Trump. Flynn pleaded guilty and cooperated, but Mueller’s team could never establish that collusion took place.
Now, it has taken years, but we are finally learning more about why the FBI and Justice Department initially chose not to charge Flynn. The reason: They could never point to any underlying crime that justified interrogating him in the first place. The evidence is in newly-released notes of a meeting between Justice Department and FBI officials on January 25, 2017 — the day after the Flynn questioning.
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The notes depict the officials discussing what crimes they might charge Flynn with. One of those was the Logan Act, which bars private Americans from conducting foreign policy. The problem with the Logan Act is that it is a dead letter — it was passed in 1799 and has never, ever been successfully prosecuted. When a law has never been enforced even once in 218 years, it raises the legal question of “desuetude” — “the principle that renders a law invalid through its long and continued non-use.” And yet the Obama Justice Department used a possible Logan Act violation, supposedly committed during the transition when Flynn spoke on the phone with Russian ambassador Sergey Kislyak, as a pretext to question Flynn.
So one line of the notes says: “Logan Act — ‘no reasonable prosecutor.'” Beneath it were the words “uphill battle” and “other transition teams” and “first time to use it.” Put together, those are an indication that the group discussed the idea that no “reasonable prosecutor” would proceed with charges against Flynn based on the Logan Act.
And then James Baker, the FBI general counsel, raised the question of charging Flynn with a so-called “1001” violation, a reference to 18 U.S. Code Section 1001, which covers the crime of lying to investigators. “How do you assess 1001 when you wouldn’t prosecute the underlying crime?” Baker asked. From the notes:
There it was: How could the FBI charge Flynn with lying to investigators when they could not establish that there was any underlying crime — violating the Logan Act or any other law — that would justify going to the White House to question him? It was the fatal flaw of the Flynn pursuit.
That glaring weakness — no underlying crime — was also the fatal flaw of the Russia investigation as a whole. Mueller was appointed to investigate collusion. He could never establish that it even took place, much less who might have taken part in it. As I wrote in OBSESSION, that failure made the rest of his job essentially impossible. When he investigated allegations that Trump obstructed justice, he was investigating whether Trump impeded an investigation into something that did not happen. Likewise, when he sought to interview Trump, he would not point to a reason — an underlying crime — so compelling that he could meet the high standard for imposing on a President of the United States.
The problem with the entire investigation — of Flynn, of Trump, of everybody in the Trump camp — was that there was no crime at the bottom of it. A prosecutor given all the money he wanted, all the staff he wanted, all the time he wanted, and all the law enforcement powers of the U.S. Justice Department could not establish that an underlying crime occurred. What followed, as the new Flynn notes show, was a flawed, deeply unfair investigation.
