The Railroading of Michael Flynn

by Eli Lake    Commentary magazine    June 2020

How it happened and why it matters

https://www.commentarymagazine.com/articles/eli-lake/michael-flynn-gets-railroaded-by-the-fbi/?utm_source=ActiveCampaign&utm_medium=email&utm_content=The+Riots+and+the+Lockdown&utm_campaign=Daily+newsletter+06%2F01%2F20
In their final encounter during the transition following the 2016 election, Donald Trump’s incoming national-security adviser surprised Barack Obama’s outgoing national-security adviser. Susan Rice writes in her memoir that the Michael Flynn she was dealing with had nothing in common with the firebrand she had watched leading a “lock her up” chant against Hillary Clinton at the Republican National Convention a few months earlier. Flynn, a retired general and the former head of the Defense Intelligence Agency, was respectful and subdued, eager for her advice. When Rice extended her hand and wished him the best of luck, Flynn asked her for a hug.

He needed it more than he could possibly have known.

Flynn did not then know that leaders of the FBI and the Justice Department were out for his head. They suspected he was a Russian agent—despite the fact that a counterintelligence investigation into Flynn launched five months earlier by the FBI had found no evidence for such a claim. Three weeks into the Trump administration, the Flynn hunt bagged its trophy. The newly installed national-security adviser was compelled to quit. The stated rationale was that Flynn had lost the confidence of the new vice president because he had supposedly misled Mike Pence about some phone calls between Flynn and the Russian ambassador to the United States. That those phone calls became public knowledge was almost certainly the result of Obama-administration leaks of highly sensitive intelligence information.

That was February. In May, the Flynn hunt resumed. Robert Mueller was named a special prosecutor tasked with investigating Russian interference in the 2016 election and possible ties to Donald Trump and his presidential campaign. After months of aggressive targeting, Mueller succeeded in getting Flynn to plead guilty to lying to the FBI—even though the actual FBI agents who had interviewed Flynn assessed that he hadn’t lied at all. Still later, when Flynn’s lawyers sought documents that would clear him of the charge he had lied, the Justice Department fought to keep them secret.

Finally, in May 2020, another Justice Department investigation was concluded. The Trump administration went to court and moved to drop the federal government’s case. As it did so, it released shocking documents from inside the executive branch that reveal the extent of the injustices done to Flynn. The stunning response from senior Obama officials, including Obama himself, was to condemn the supposed politicization of the Trump Justice Department. Now the Judge hearing Flynn’s case has paused the motion. Michael Flynn is still in limbo.

This is the story of the railroading of Michael Flynn.

I.

In August 2016, the FBI launched a counterintelligence probe into Flynn, who had become a key member of Trump’s foreign-policy team two years after Barack Obama humiliated Flynn by removing him from his post at the head of the Defense Intelligence Agency. The FBI and the Justice Department were spooked by Flynn’s proximity to the Republican nominee for president. They knew Flynn had taken money from RT, the Russian propaganda network dedicated to boosting Vladimir Putin, and had been seated next to Putin at a dinner in Moscow he had been paid to attend. Given how peculiarly well-disposed Trump and his campaign had been toward Russia, the notion that something untoward might have been going on didn’t seem far-fetched—especially since Flynn was openly bitter about how Obama had defenestrated him.

But the anti-Flynn probe came up empty, and by January 4, 2017, the case agent in charge of the probe had drafted the paperwork necessary to close the file on Flynn. At the last minute, the case agent’s supervisor told the case agent to hold off because FBI Director James Comey wanted to keep the case open. Comey had learned that during the previous week, Flynn had had the misfortune of returning a phone call from the Russian ambassador to the United States, Sergey Kislyak, while Flynn was on vacation in the Dominican Republic. The FBI was listening in.

In those December 29 calls (Flynn had had to phone back a few times because reception was choppy), Flynn had urged Kislyak not to escalate tensions with the United States. Obama had just expelled 35 of Russia’s spies and had levied minor sanctions against Putin’s intelligence agencies as a rebuke for election meddling. According to the motion to drop his prosecution, Flynn’s request was “consistent with him advocating for, not against, the interests of the United States.” Moreover, Flynn’s communications with Kislyak “gave no indication that Mr. Flynn was being directed and controlled by the Russian federation.”

At a White House meeting on January 5, 2017, President Obama asked the attendees what they thought about sharing the most privileged information his intelligence agencies had gathered about Russia’s efforts to meddle in the 2016 election with the incoming Trump team. Present were Joe Biden, Rice, Comey, and Deputy Attorney General Sally Yates. According to both Rice’s memoir and a memo memorializing the meeting (dated January 20, 2017), the president stressed that everything the FBI did in this sensitive matter should be “by the book.” In fact, nothing was done by the book—not by Obama’s deputies and not by Obama. At the end of the meeting, Obama pulled Yates and Comey aside. It was at this point that Yates learned from Obama of the Flynn–Kislyak call. Obama’s full knowledge of the Flynn investigation is still unknown. According to newly declassified transcripts of her interview with Mueller’s team, Yates grew increasingly frustrated over the next two weeks with Comey’s efforts to keep the Trump team in the dark about the Flynn probe because she found Comey’s explanations of his investigation confusing and inconsistent.

First of all, Comey raised the prospect in the January 5 meeting that Flynn may have violated the Logan Act. The act, which makes it a crime for a private citizen to engage in the making of U.S. foreign policy without explicit authorization from the executive branch, is a 220-year-old relic—a product of the John Adams administration. It has never been successfully used to prosecute anyone, and no American has been charged with breaking it since before the Civil War. Bringing up this old chestnut suggests that the FBI was looking for any conceivable pretext to keep its Flynn hunt alive. To that end, the FBI officer overseeing the Flynn case, Peter Strzok, eagerly provided a Congressional Research Service report on the history and utility of the Logan Act to FBI lawyer Lisa Page, who was working in the office of Comey’s deputy, Andrew McCabe.1 In his 2019 memoir, McCabe writes that in “high-level discussion at the relevant agencies and at Justice, the question arose: Was this a violation of the Logan Act?”

Yates, we learn from the Mueller transcript, was dubious about predicating a criminal investigation on this ridiculously antiquated and never-used law. Indeed, Comey told the House Intelligence Committee in March 2017 that the FBI had not been pursuing the question of Flynn’s supposed violation of the Logan Act because the Justice Department had not asked the FBI to investigate the matter.

And yet the Logan Act was part of the FBI’s ongoing investigation. Handwritten notes from March 2017 by former Acting Assistant Attorney General Dana Boente said the broader FBI probe into the possible conspiracy between the Trump campaign and Russia in part “focused on the Flynn investigation and potential criminal violations of the Logan Act.” (This detail comes from the December 2019 report on the FBI’s investigation issued by Justice Department Inspector General Michael Horowitz.)

Moreover, a recently declassified “scope memo” on the Mueller probe—a document defining the range of issues Mueller was to examine—drafted on August 2, 2017, by then Deputy Attorney General Rod Rosenstein authorized Mueller’s team to investigate whether Flynn had “committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition.” The only crime or crimes that could be found in this case would either be outright espionage or a violation of the Logan Act.

The idea that Flynn had behaved illegally, let alone unethically or immorally or unconventionally, in discussing U.S. foreign policy with the Russians during the transition is beyond absurd. He was the incoming national-security adviser. Phone calls between incoming senior administration officials and foreign governments are common during a presidential transition. And given what is now known about the context of that phone call, the initial spin in the press that Flynn’s conversation with Kislyak had undermined the outgoing administration’s policy was misleading.

Why this reliance on the Logan Act in the first place? According to regulations, FBI investigations into “federal crimes or threats to national security or to collect foreign intelligence” require a “predicate.” The FBI cannot establish the predicate at will, the rules state: “The initiation of a predicated investigation requires supervisory approval at a level or levels specified by FBI policy.” It seems likely that Comey was looking for a rationale to continue the FBI’s pursuit of Flynn because the original rationale—the question of whether Flynn was a Russian asset—had come up empty. He could no longer legally investigate Flynn because the initial search had reached its end.

Only it hadn’t.

II.

As it happens, the FBI case manager for the Flynn investigation, Joe Pientka, had indeed drafted a memo closing the Flynn investigation—but he hadn’t filed it formally. Because of Pientka’s “incompetence” (the word was Peter Strzok’s, in a delighted text exchange on January 4, 2017, with his paramour Page), the probe was not shut down and a new predicate wasn’t required. In his motion to dismiss the prosecution of Flynn, U.S. Attorney Timothy Shea said this “sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens.”

Until the end of April 2020, Pientka’s memo was kept from Flynn’s counsel and the public. It has been released only now because career U.S. attorney Jeffrey Jensen completed his review of Flynn’s case and declassified documents relevant to it. The Pientka memo provides far more detail on the status of the Flynn investigation than was previously known—and what it shows isn’t pretty.

We learn from the memo that after the FBI ran down a lead provided by a confidential human source about Flynn’s contact with a person with links to the Russian state, the bureau could not confirm that any such relationship ever existed. That source was likely Stefan Halper, a fellow at Cambridge University and an intelligence community insider. Halper was being paid by the U.S. government to inform on Flynn as well as another Trump campaign aide, George Papadopoulos.

Flynn’s suspected contact, whose name is redacted in the memo, is likely Svetlana Lokhova. She is a Russian-born academic who, the Guardian and other news outlets reported in 2017, had traveled in the same car with Flynn as they left a Cambridge University seminar in 2016.

These stories made it seem as if Lokhova was luring Flynn into a honey trap, during which sex is offered for blackmail leverage later on. “The CIA and FBI were discussing this episode, along with many others, as they assessed Flynn’s suitability to serve as national security adviser,” the Guardian reported.

The Lokhova story was a smear. Two months after it was published, the Guardian was forced to append an embarrassing correction. The correction read in part, “Her lawyers have also subsequently informed us that she does not have privileged access to any Russian intelligence archive. We also wish to make clear, for the avoidance of doubt, that there is no suggestion that Lokhova has ever worked with or for any of the Russian intelligence agencies.” Last year, Lokhova sued Halper and several news organizations for the smear against her.

Pientka’s memo also reveals that FBI agents searched multiple databases inside the intelligence community for derogatory information on Flynn and found nothing. This is much more significant than a Google search of classified databases; this would have been a scouring of the intelligence provided by spies and electronic eavesdropping on Russia’s own intelligence activities, the same sources and data that informed the government’s assessment of Russia’s election interference. The memo says the investigation yielded so little that senior management recommended closing the case before even interviewing Flynn.

In March 2017, a month after Flynn had resigned, Comey told Congress that he thought he may have wanted to close the investigation in late December or early January. But after he became aware of the Flynn–Kislyak conversation, he wanted to keep it open to see whether there was anything the investigators were missing.

These events would lead to the FBI interview that Mueller would later use to coerce the guilty plea out of Flynn. Comey told Congress that nothing much happened in the Flynn matter until David Ignatius published a column in the Washington Post on January 12, 2017. In that column, Ignatius revealed that Flynn had made the phone calls to the Russian ambassador during which the two discussed the sanctions that Obama levied against Russia. Three days later, on January 15, Mike Pence appeared on CBS’s Face the Nation and was asked about the revelation in Ignatius’s column. Pence said that Flynn had told him there had been no discussions of sanctions.

Here’s what Comey told the House Intelligence Committee he wanted his agents to do: “We had this disconnect publicly between what the vice president was saying and what we knew. And so before we closed an investigation of Flynn, I wanted them to sit before him and say, ‘What is the deal?’” That is not at all what the agents did.

III.

The FBI discussed several strategies for the interview. In the end, Pientka and Strzok settled on an approach designed to lead Flynn to dissemble. They decided they would not show him the transcript of his Kislyak call. They would not inform Flynn that he was the subject of a criminal or counterintelligence investigation. And they would not remind him that it was a crime to lie to FBI agents. Strzok would later recall that Flynn saw his interrogators as allies.

On the morning of the interview, the bureau’s counterintelligence chief, Bill Priestap, expressed concern about what was about to happen. Not only was the FBI going into the meeting without making it clear to Flynn he was in jeopardy, it was also not going to inform the White House counsel that Flynn was being interviewed.

Texts between Page and Strzok show that Priestap urged Comey and McCabe to be more direct with the White House and Flynn. McCabe didn’t want to hear it and cut Priestap off. According to handwritten notes disclosed through a review of the Flynn prosecution by U.S. attorney Jensen, Priestap found it difficult to make sense of the investigative purpose of the interview. “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” he wrote. (The New York Times claims Priestap told Jensen’s review team that the FBI had not been trying to set up Flynn, a contention that is undercut by other evidence disclosed by the Justice Department.)

When McCabe called Flynn to set up the interview, Shea says he “effectively discouraged Mr. Flynn from procuring counsel or even notifying the White House Counsel.” That suggests that the account McCabe provides in his memoir, where he says he asked Flynn whether he wanted counsel present during the interview, is misleading at best.

Flynn had been led to believe that the interview with the agents was purely informational, and when they arrived at his office, they went out of their way to make him feel at ease. In his motion to withdraw his 2017 plea for lying to the FBI, Flynn reiterated that he did not have a clear recollection of the conversation with Kislyak and did not intentionally lie to Pientka and Strzok. He also said he is generally tightlipped with interlocutors outside his chain of command. “My baseline reaction to questions posed by people outside of superiors, immediate command, or office of responsibility is to protect sensitive or classified information, except upon ‘need to know’ or the proper level of security clearance,” he wrote.

Flynn did not believe he was being interviewed as part of a criminal or counterintelligence investigation (indeed, this was something Comey took great pains to conceal from Trump’s White House, whose lawyers might have counseled caution to Flynn or sat in on the interview, as would be typical). Therefore, Flynn did not feel that Strzok and Pientka were out to get him; if anything, he thought he outranked them and that they were in effect his underlings.

More telling, Strzok and Pientka did not detect any of the body language or ticks associated with lying. Considering that Pientka had attended a briefing with Flynn during the campaign in order to assess Flynn’s baseline mannerisms, this assessment has credibility. Comey, on his 2018 book tour, would later deny that the agents had thought Flynn was being truthful. But transcripts show that when asked under oath in the closed session with the House Intelligence Committee if Flynn lied to his agents, Comey said, “I don’t know. I think there is an argument to be made that he lied. It is a close one.”

The FBI’s official record of that interview, known as a 302, also discredits Comey’s after-the-fact spin. It shows that Flynn said he did not remember details when asked by the FBI agents. When prompted if he had asked Kislyak not to engage in a “tit for tat,” Flynn responded that he didn’t remember. Shea, in his motion, writes that “the statements in question were not by their nature easily falsifiable. In his interview, Mr. Flynn offered either equivocal (‘I don’t know’) or indirect responses, or claimed to not remember the matter in question.”

The 302 record also shows that Comey’s initial justification to Congress in March for the interview was misleading. “My judgment,” he said, “was we could not close the investigation of Mr. Flynn without asking him what is the deal” with the “disconnect” between what he told Kislyak and what he told Pence. But the agents never asked Flynn direct questions about his conversation with Pence.

Once the interview was over, Comey reversed his position on informing the new White House about the national security adviser and sent the White House the call transcripts. Before that, he had said he worried that informing anyone on the Trump team would jeopardize the bureau’s investigation. After, Comey told deputy Attorney General Sally Yates that he thought briefing the vice president about the phone-call transcripts was fine. She did so just before she was fired on January 30. As a result, Pence initially believed Flynn had lied to him, and on February 13, Trump forced Flynn to resign. Pence has since changed his mind. He said on May 11 of this year that he would welcome Flynn back to the White House and no longer believes that Flynn deliberately misled him.

IV.

After Shea’s motion to end Flynn’s prosecution was sent to the court on May 7, the former acting assistant attorney general for national security, Mary McCord, took public issue with it. In an op-ed for the New York Times, she accuses Shea—and by extension Attorney General William Barr—of twisting words that she provided in an interview to the FBI about key events after the fact to support the motion.

McCord acknowledges there were disagreements between Comey and Yates on notifying the incoming Trump administration of Flynn’s Kislyak call. At the same time, she says her interview does not support Shea’s claim that the call was immaterial to the counterintelligence investigation.

McCord’s argument is premised on the disconnect between the Pence interview and the transcript of the Flynn–Kislyak call. She writes: “The Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pence’s and others’ denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions. Mr. Pence’s denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.”

McCord is not arguing that the call in and of itself was material to a counterintelligence investigation. Instead McCord echoes what Yates herself testified to Congress in 2017—that because of the conversation about sanctions, Flynn had made himself vulnerable to blackmail following the Pence interview. But this is a strange argument: If the Russian government intended to blackmail Flynn over lying to Pence about an innocuous phone call with Kislyak, it would have had no leverage. Before the call, Flynn coordinated his response with the Trump transition team. Even Comey didn’t think much of the blackmail theory. On March 7, 2017, he told the House Intelligence Committee in closed session that it was “possible” Flynn could be blackmailed about his phone call but that it “struck me as a bit of a reach, though, honestly.”

Taking a step back, there is a more fundamental question: What business was it of McCord or Yates if Pence lied on Face the Nation? Why did they assume that Flynn lied as opposed to misremembered? Perhaps it was Pence who lied, because he was asked a question he found difficult to answer on national television. None of these obvious questions appear to have been asked by the Justice Department leadership. The only reason Yates’s testimony on this was accepted at face value in 2017 is that most of the Washington establishment was in a panic, stoked by the opposition-research dossier funded by the Hillary Clinton campaign and produced by Christopher Steele.

Indeed, that dossier was the primary piece of information in the FBI’s possession that suggested the Trump campaign sought a quid pro quo with Russia on the matter of Russian sanctions. The Steele dossier alleges that a low-level campaign aide named Carter Page was a conduit in Russia for dirt on Clinton and in exchange had secured a deal to lift more significant sanctions if Trump was elected. By the spring of 2017, FBI agents had ample evidence the dossier was hokum, as the December 2019 report by the Justice Department’s inspector general shows in great detail. Steele’s sources, upon being contacted by FBI agents, would not support its most explosive claims, and the initial wiretaps on Page failed to disclose any confirmation of Steele’s allegations. Nonetheless, the dossier was submitted four times to the secret FISA surveillance court to obtain and renew eavesdropping warrants on Page.

The FBI never sought a warrant to eavesdrop on Flynn. But the FBI was listening to Kislyak’s calls. Comey authorized that Flynn’s name would be unmasked on those transcripts of the December 29 call and shared the information with FBI leadership as well as the Office of the Director of National Intelligence. Obama also knew about the phone calls, as the January 5 meeting indicated. McCabe and Comey have both said that they learned about the calls after the intelligence community was tasked with trying to find out why Putin had not escalated in response to Obama’s decision to expel 35 Russian spies. Flynn’s request helped explain why. But there is no way a reasonable person could conclude that a move to prevent a tit-for-tat escalation was evidence that Flynn was a Russian agent or asset.

As most of the press homed in on whether Flynn discussed the sanctions Obama had imposed, Flynn told the Daily Caller that he did discuss the expulsion of the 35 Russian spies with Kislyak in his last interview as national-security adviser. “It wasn’t about sanctions. It was about the 35 guys who were thrown out,” he said. “So that’s what it turned out to be. It was basically, ‘Look, I know this happened. We’ll review everything.’ I never said anything such as, ‘We’re going to review sanctions,’ or anything like that.”

V.

It’s obviously fair to ask why, if Flynn hadn’t really lied, he would have pled guilty to one count of making false statements in his FBI interview. The plea itself makes no reference to Flynn saying the Trump administration would later review the sanctions—and as a matter of fact, the sanctions never were lifted. It says that Flynn lied to the FBI agents when he said he did not ask Kislyak to refrain from escalating the situation and that he did not remember “a follow-up conversation in which the Russian ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of Flynn’s request.”

It goes on to say Flynn lied to FBI agents about his requests of members of the UN Security Council either to delay or vote against a resolution pushed by the Obama administration chastising Israeli settlements. He made this request of Kislyak, who informed him that Russia would not oppose the resolution. Flynn never shared these details with the FBI agents who interviewed him on his fourth day on the job as national-security adviser.

From the perspective of the FBI’s investigation into possible coordination, collusion, or conspiracy between the Trump campaign and Russia, this is the thinnest of gruel. Nonetheless, the motion says that Flynn’s “false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation.”

Given what is known now, those words are more of a lie than anything Flynn said to the FBI agents who interviewed him. To recap: At this point in the investigation, the FBI had already investigated whether Flynn had been a witting or unwitting Russian agent and had found nothing. The bureau also had in its possession the transcript of Flynn’s call to Kislyak. And as Shea’s motion shows, Flynn’s communications to Kislyak on sanctions should have been considered evidence that he was not a Russian agent or asset.

The reason that Flynn put his name to something he knew was not true was that Mueller’s investigators were squeezing him on an unrelated matter.

In August 2016, Flynn took a contract to represent a Dutch firm known as Inovo BV on a project aimed at investigating and defaming Fetullah Gulen, a charismatic Turkish cleric who had become a mortal enemy of Turkey’s president, Recep Tayyip Erdogan, and was living in exile in Pennsylvania. In 2016, Erdogan survived a military coup he blamed on Gulen’s followers. Erdogan’s regime sought Gulen’s extradition back to Turkey, where he would almost certainly have faced the death penalty.

Taking that contract showed horrendous judgment on Flynn’s part. He was the Trump campaign’s national-security adviser and had no business getting himself in the middle of this. That said, it was a potential political problem for Trump, not the national-security threat that many in the resistance now say it was. It’s fair game for journalists and Democrats to make a stink about the Inovo contract. But it was highly unusual for Flynn’s missteps in this case to be the basis for a criminal prosecution on the grounds that Flynn had violated the Foreign Agents Registration Act (FARA).

Before Mueller was appointed special prosecutor, FARA violations were treated for the most part the way you’d treat a speeding violation. A 2016 Justice Department inspector general report found only seven criminal prosecutions for FARA violations in the half-century from 1965 to 2015. Most of the time, violators were told to amend their forms and at worst pay a fine.

Mueller decided to use FARA as a useful cudgel to nail people he wanted to flip to get them to spill the beans on Trump. He brought a FARA charge against former Trump campaign manager Paul Manafort, who was also convicted on more serious charges of money laundering and other crimes. Mueller’s team decided they could use the threat of a FARA prosecution to squeeze Flynn as well.

Flynn had initially registered the Inovo contract in August 2016 through a less stringent law known as the Lobbying Disclosure Act. He did so on the advice of his counsel at the time. And when Flynn took the contract, that advice was sound. The legal environment for FARA registrations was quite permissive at the time. But at the end of 2017, and with Mueller in hot pursuit and with unlimited resources, Flynn—and his son, Michael Jr.—could have found themselves facing years in prison. So Flynn, in financial ruin and wishing to get his son out of Mueller’s crosshairs, agreed to cooperate.

And cooperate he did. Before his first sentencing hearing at the end of 2018, Mueller’s team initially recommended no jail time for Flynn, in part because he was a good cooperative witness. Over time, though, Flynn began to regret his decision. Some of this was because of the failure of Mueller’s investigation to bring a single charge against any American for coordinating with Russia’s influence operation in 2016. Some of it was also because details about the government’s own misconduct in the investigation began to leak out. So in 2019, Flynn ended his relationship with his lawyers from Covington and Burling, the ones who had filed his initial FARA registration forms on the Inovo matter and who had also represented his partner Bijan Rafiekian, who had also been indicted on FARA violations.

Flynn also began to back out of his cooperation with the government’s case against Rafiekian. In July 2019, prosecutors decided they would not call Flynn as a witness and threatened to prosecute Flynn as a co-conspirator. At first Flynn’s lack of cooperation didn’t matter because that same month, a jury found Rafiekian guilty of being an unregistered agent for the government of Turkey. But the judge in the case overturned the jury verdict in a blistering judgment on the prosecution. “The government has failed to offer substantial evidence from which any rational juror could find beyond a reasonable doubt” that Rafiekian was an agent of Turkey

The judge’s ruling was significant for Flynn in one important respect. In 2017, during the run-up to Flynn’s plea agreement, the Wall Street Journal reported that Flynn and his son had been approached by Turkish government officials to try to kidnap Gulen and bring him back to Turkey in exchange for $15 million. A November 10 story in the Journal said that Mueller’s team was investigating the matter. Flynn’s lawyers have categorically said this episode never happened. There is no mention of the episode in the prosecution of Rafiekian. The one on-the-record source for this allegation was former CIA Director James Woolsey, who himself sought a contract with Turkey to defame Gulen.

VI.

Since Shea’s motion was entered before Judge Emmet Sullivan, Democrats and the FBI’s defenders have raged at the injustice of it all. Obama himself, in comments to his administration’s alumni, said, “That’s the kind of stuff where you begin to get worried that basic—not just institutional norms—but our basic understanding of rule of law is at risk. And when you start moving in those directions, it can accelerate pretty quickly, as we’ve seen in other places.”

This is now the party line for the resistance—to its immense discredit. On May 12, Judge Sullivan ruled that he will hear arguments for Flynn’s guilt from outside parties, further delaying when Flynn will learn his fate.

What Jensen uncovered in his review was not only an injustice against Flynn but an assault on the peaceful transition of presidential power. The FBI’s job is not to entangle the new president’s national-security adviser in a spurious investigation. Justice is not served when dubious threats of prosecution are leveraged to get political opponents to plead guilty to lies they did not tell.

There is another side to this as well. For all of the former prosecutors and pundits appalled that Flynn, who confessed to lying to the FBI, is no longer being charged with that crime, where is their outrage at all of the lies told by his accusers?

Compare Flynn’s treatment to McCabe’s. Flynn was humiliated and bankrupted for allegedly lying to Pence and FBI agents over a phone call that advanced U.S. interests.

Meanwhile, the Justice Department inspector general found in 2018 that McCabe “knowingly provided false information” in three separate interviews during an investigation into self-serving leaks published by the Wall Street Journal about an aborted investigation into the Clinton Foundation in 2016. That report also found that McCabe admonished more junior FBI agents for the leaks that he himself had authorized. Today, McCabe is a contributor at CNN. His opinions are still taken seriously at places like the esteemed Lawfare website. He remains in the good graces of the Trump resistance.

Or consider Strzok, the FBI agent who schemed with Lisa Page. When Strzok testified before the House Judiciary Committee in 2018 and was asked whether his animus toward Trump, as expressed in text messages to Page throughout 2016, may have influenced his judgment in handling the Trump–Russia investigation, he balked. “I can assure you at no time in any of these texts did those personal beliefs ever enter into the realm of any action I took,” he said. “This isn’t just me, you don’t have to take my word for it, there were multiple layers of people above me and below me, they would not tolerate any improper behavior in me any more than I would tolerate it in them, that is who we are at the FBI.”

Just who was the FBI when Comey was its director and Strzok was overseeing the investigation into Flynn and Trump–Russia? Their FBI lied to the surveillance court on multiple occasions and led the public to believe it had a powerful cause to suspect a conspiracy between Trump and Russia when it didn’t have the goods. It not only did “tolerate…improper behavior.” Their FBI exemplified it.

VII.

And that is a bitter irony for the republic. When Flynn was designated to become Trump’s national-security adviser, much of Washington remembered his angry speech the prior summer at the Republican convention when he had led the crowd in the chant of “lock her up” that so startled and upset Susan Rice. A line had been crossed in that episode: A retired three-star general and the candidate he was advising had chosen to treat their political opponent like a criminal.

Little did Flynn know that only five months later, that was exactly what the FBI and Justice Department would do to him.

1 We know this from a trove of documents released in conjunction with the motion to drop the prosecution of Flynn.