People are making too much of the “unmasking” of General Michael Flynn, which may have been entirely justified – but what was almost certainly illegal was the leak to the Washington Post of the information from those unmasked calls.
The purpose here is not to debate the unmasking. I’ll just merely quote a prominent Flynn defender, former ace federal prosecutor Andrew McCarthy of National Review: “There is nothing wrong with President Obama’s knowing about a counterintelligence investigation. In fact, if the FBI truly believed a candidate for the presidency was in an espionage conspiracy with the Kremlin, there would be something profoundly wrong if the president were not kept informed. It would be expected that the president would give his subordinates direction.”
But even if the unmasking was entirely justified – not at all an obvious conclusion – the leak was not. Indeed, it was an appalling breach of both national security and of Flynn’s civil rights.
On Feb. 14, 2017, the day Flynn resigned as national security adviser, President Trump complained vociferously that “The real story here is why are there so many illegal leaks coming out of Washington?” Trump was right. Five days earlier, the Post had reported that “National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.”
Who were those officials? Why were they telling reporters the content of secretly recorded phone conversations from the then-private-citizen, incoming national security adviser? Even if it were legal to tape those calls, the reason it would have been legal was for protecting national security, because of an intelligence operation. If it is part of an intelligence operation, it is classified. And either way, it is a massive violation of Flynn’s First Amendment speech rights to divulge that information other than in the context of a formal court proceeding.
The violation of national security laws is made clear in 18 U.S. Code 798, especially (a)(3) and (a)(4), prohibiting disclosure of “communication intelligence.”
Granted, General Flynn admitted to misleading the FBI interviewers. He did so twice. He admitted misleading vice president Mike Pence. He admitted to filing a materially incorrect lobbying report concealing the nature of his paid work for Turkey’s horrid Islamist regime. He also cozied up to Vladimir Putin and to Putin-sponsored Russian media outlets. All of this, and more, makes him look like, well, not a very good man, to say the least.
But even deeply flawed men have civil rights. It is outrageous to trample them. It is also inexcusable to harm the national security of this nation by leaking details of a counter-intelligence operation.
Whichever of those Obama administration officials committed those leaks, even if the leakers included former vice president Joe Biden or his staff, should be prosecuted to the fullest extent of the law.
Note: I thank attorney James Robertson for help with legal citations for this column.
