Doug Schoen: Flynn case – Wrongdoing on both sides. Here's what judge should do now
{{#rendered}} {{/rendered}}Michael Flynn’s brief yet controversial roles in Donald Trump’s 2016 presidential campaign and as national security adviser at the beginning of the Trump presidency were disasters from the start.
Trump made a mistake hiring Flynn for his administration, and was right to subsequently fire Flynn for lying to Vice President Mike Pence. Trump would have been justified firing Flynn for other reasons as well.
On the 2016 campaign trail, the retired Army lieutenant general was extremely provocative, leading chants of “Lock her up!” in reference to Hillary Clinton. He was also quoted as saying that “if I did a tenth of what [Clinton] did I would be in jail today.”
{{#rendered}} {{/rendered}}Flynn’s extreme partisan behavior was outrageous and highly detrimental to the national security apparatus he was appointed to lead. If Flynn served any longer, there would have been serious danger of politicizing national security.
That being said, I believe the Justice Department’s recent decision to drop its prosecution of Flynn on charges of lying to the FBI – charges Flynn pleaded guilty to – was justified, because of misconduct by the Obama administration, the Justice Department and the FBI in its handling of his case.
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In a highly unusual move, U.S. District Judge Emmet Sullivan refused last week to approve the Justice Department’s request to close the case against Flynn. Instead, Sullivan appointed a retired federal judge to argue against the Justice Department motion to dismiss charges against Flynn.
But because the actions by Obama administration officials, the Justice Department and the FBI (part of the Justice Department) in 2016 and 2017 to build a case against Flynn are deeply concerning, the best way to rectify these missteps is to drop the case.
The case against Flynn is rooted in the decision by President Barack Obama’s administration to impose sanctions on Russia in December 2016 for that nation’s interference in our presidential election that year.
{{#rendered}} {{/rendered}}Flynn established a backchannel with the Russians, making calls to their ambassador to the U.S., Sergey Kislyak. Recordings secretly made by U.S. intelligence officials show that Flynn urged Kislyak that Russian should not retaliate for the U.S. sanctions.
But Flynn later denied making that request of Kislyak when he was interviewed by FBI agents.
Flynn then proceeded to falsely state to Vice President-elect Pence what he discussed with Kislyak and subsequently lied to the FBI as well on two occasions. Pence – apparently believing Flynn – then vouched for Flynn by repeating Flynn’s false statements during a TV interview.
{{#rendered}} {{/rendered}}In December 2017 Flynn pleaded guilty to charges of making false statements to the FBI.
However, in January this year, Flynn’s attorney claimed the prosecution breached the plea agreement by recommending prison time, and Flynn sought to withdraw his guilty plea.
From the latest developments we know now about the role of the Obama administration and the FBI and Justice Department in the Flynn case, it’s clear that there has been wrongdoing on both sides.
{{#rendered}} {{/rendered}}Any unmasking of an American who is caught on surveillance of a foreign official for political purposes is not only wrong but extremely dangerous.
The unmasking of Flynn by Obama administration officials, as evidenced by the memo that acting Director of National Intelligence Richard Grenell gave to the Senate last week, was also wrong.
And it’s clear now that the FBI investigation of Flynn was clearly designed to set him up for prosecution. Any unmasking of an American who is caught on surveillance of a foreign official for political purposes is not only wrong but extremely dangerous.
As the Justice Department announced last week, the FBI did not have sufficient reason or basis to interview Flynn when he lied about the content of his discussion with Kislyak. The department said, for this reason, it wants to drop charges against Flynn.
{{#rendered}} {{/rendered}}In a court filing last week, U.S. Attorney Timothy Shea stated: “The Government is not persuaded that the Jan. 24, 2017 interview [with Flynn] was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we do not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.”
The move by the Justice Department to drop the charges against Flynn was necessary given that we now know the FBI effectively entrapped him. The FBI’s interview with Flynn should never have taken place. Former federal prosecutor Andrew McCarthy agrees with this Justice Department’s move to drop charges and says that “the government wouldn’t have a prayer of convicting Flynn at trial.”
Flynn was not exactly a model public servant, but in fairness to him, he has suffered a great deal – losing his job, being hit with big legal bills that forced him to sell his house, and defending himself against a possible prison sentence. That amounts to a lot of punishment he has already endured.
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With our nation struggling to deal with the worst pandemic to hit us since World War I and the worst economic crisis since the Great Depression, rehashing the conduct of Flynn, the Justice Department, the FBI and officials in other parts of the Obama administration in 2016 and 2017 has become a distraction from far more important matters.
Judge Sullivan shouldn’t force the Justice Department to prosecute Flynn. Let the case against him end.
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