Why Was the FBI
Investigating General Flynn?
There appears to have been no basis for a criminal or intelligence probe.
The following is from a
recent column by “NATIONAL REVIEW”.
Why would Flynn be the
subject of an investigation by the FBI and the Justice Department? We are told
that the FBI was monitoring the phone calls of Russian ambassador Kislyak under
FISA. Makes sense — he’s an overt foreign agent from a hostile government.
Flynn called Kislyak on December 29, 2016. It was not a nefarious communication: Flynn was a
top adviser of then-president-elect Trump, a part of the Trump transition team,
and just three weeks from formally becoming the new president’s
national-security adviser. His communications with Kislyak were just some of
the many conversations Flynn was having with foreign officials.
The call to Kislyak, of course, was intercepted. No doubt the calls of other
American officials who have perfectly valid reasons to call Russian diplomats
have been intercepted. It is the FBI’s scrupulous practice to keep the
identities of such interceptees confidential. So why single Flynn out for
identification, and for investigation? FBI agents did not need to “grill” Flynn
in order to learn about the call — they had a recording of the call. They also knew
there was nothing untoward about the call.
We know that from the Times
report — a report that suggests an unseemly conjoining of investigative power
to partisan politics. The report informs us that as the FBI set its sights on
Flynn, its agents were consulting with “Obama advisers.” Interesting, no? Ever
since Hillary Clinton’s loss to Donald Trump on November 8, Obama’s Democratic
party had been pushing a narrative that “Putin hacked the election.” The
narrative continues to have two major flaws.
First, while the Russian
dictator may have preferred Trump to Clinton, there is no evidence that his Russian regime did
anything to compromise the voting process. The media-Democrat complex has
desperately sought to obscure this problem by emphasizing Putin’s likely role
in publicizing embarrassing Democratic e-mail communications. Notwithstanding
Democratic talking points, that is a far cry from “hacking” the voting process.
The second flaw is that,
although Trump has made disturbingly flattering remarks about Putin, there is
no evidence his campaign has given or promised Russia any actual accommodation in exchange for Putin’s
favor. Democrats hope to erase this problem by finding something, anything,
that could be spun as a quid pro quo. Obviously, they hoped the Flynn–Kislyak
conversation would answer their prayers. No such luck. As the Times puts it:
Obama officials asked the FBI if a quid pro quo had been discussed on the call,
and the answer came back no, according to one of the officials, who like others
asked not to be named discussing delicate communications.
The topic of sanctions came
up, they were told, but there was no deal. Asked not to be named discussing
delicate communications. That’s a good one. Let me translate: The officials
don’t want you to know who they are because they are corrupt — (a) FISA
intercepts are classified, so disclosing them to the press is a crime; (b) by
revealing the Flynn–Kislyak conversation to the press, the “officials” inform
the Russians that whatever countermeasures they are taking against U.S.
surveillance have failed, assuring that the Russians will alter their tactics,
making the job of our honorable intelligence agents more difficult; and (c) the
FBI’s investigative powers are not supposed to be put in in the service of a
political party’s effort to advance a partisan storyline, like “Putin hacked
the election.” So since there was no impropriety in Flynn’s call to the Russian
ambassador, why did the Bureau continue investigating Flynn? Why did FBI agents
interrogate him?
According to press reports of other rogue intelligence leaks, the FBI was
sicced on Flynn after Trump officials gave inaccurate public statements about
his conversation with Kislyak, to wit: They said that it had not touched on the
punitive actions President Obama took against Russia on the same day the
conversation took place, when in fact there had been some discussion of that
topic — which the FBI and Justice Department knew from the recording.
Specifically, Flynn denied any discussion of these sanctions, unnamed Trump
officials denied it to the Washington Post, Vice President Pence denied it in a
CBS interview shortly before the inauguration, and finally White House
spokesman Sean Spicer denied it again on January 23.
According to the Times, it
was the Spicer denial that triggered the FBI’s interrogation. It was as if the
Bureau and Justice Department intentionally waited to pounce until Trump was in
power — which meant that any misstatement could now be framed as a false
representation by the sitting president. But just ask anyone who knows that you
can’t keep your health-care plan and your doctor if you like them, that the
Benghazi massacre was not caused by a video, that the IRS really did harass
Americans over their political beliefs, and that Iran will be allowed to
develop nuclear weapons. Anyone who knows those things — that would be all of
us — also must know that misleading statements by presidential administrations,
even egregious ones, are not grounds for FBI investigations.
They are left to the political
process to sort out, and we don’t want the FBI turned into a political weapon.
So how come the FBI got involved here? Is the FBI saying that Mike Flynn is an
agent of a foreign power? A covert Russian operative? That would be absurd. As
I’ve detailed, Flynn is on record — unambiguously, in the core theme in his
bestselling book — urging Americans to view Russia as an implacable enemy of the United States that must be checked.
Now, are you unhappy — as I
am unhappy — with the Trump administration’s blandishments toward the
murderous, anti-American Putin regime? Sure . . . but that does not make Flynn
and other Trump officials Russian agents — any more than Obama is an Iranian
agent. Again, political disagreement is not a rationalization for drawing a
ridiculous legal conclusion (“maybe he’s a ‘foreign agent’”) as a pretext for
an investigation by the FBI. Fear of blackmail? That is a theory purportedly
advanced by former acting attorney general Sally Yates, an Obama political hack
who was eventually fired for insubordination by Trump (who had foolishly
retained her).
The blackmail theory is
almost too stupid to regurgitate. If you can follow this, the idea is that the
Russians knew that Flynn withheld information about his Kislyak call from the
Trump administration and was therefore vulnerable to extortion — i.e., the
Russians could expose his concealment if he didn’t do their bidding. It should
go without saying that blackmail works only if the compromising information is
not in the possession of the aggrieved party.
Here, the United States —
i.e., the Trump administration itself — had a recording of the Flynn–Kislyak
call, a fact that both Russia and Flynn (who is deeply versed in intelligence
craft) had to know was highly likely. Finally, there’s Flynn’s supposed
potential criminal violation of the 1799 Logan Act.
Recall what we said at the
start: The FBI’s criminal investigation and domestic security functions
overlap. If there is not a valid foreign-intelligence basis to investigate
someone, a potential law violation could do the trick. But . . . the Logan Act? Are you kidding? The statute is a discredited
relic of the President John Adams administration’s over-criminalization of
political speech on the grounds of its purported seditiousness. It is a highly
dubious prohibition against foreign-policy freelancing by American citizens
acting without executive-branch permission. As Jeremy Duda comprehensively
explains in the Washington Post, in its 218-year history, there has been just a
single Logan Act prosecution, ever — an unsuccessful, aborted charge brought in
1803 by an Adams-appointed U.S. attorney. It is not enough to say it is ludicrous to
contemplate a Logan Act prosecution against a transition official who was the
incoming national-security adviser over a phone call with a foreign ambassador.
Beyond that, we must refer to
the high-profile July 2016 press conference held by FBI director James Comey.
In contrast to General Flynn, as to whom there is no evidence of criminal
wrongdoing, there was a Mount Olympus of damning proof that Hillary Clinton
committed felony violations of a law against mishandling classified
information. Yet Director Comey concluded that “no reasonable prosecutor” would
consider indicting Mrs. Clinton. Why? Because behavior of the type in which she
engaged is never prosecuted. Now it happens that Comey was wrong about Clinton — to make his assertion, he had to paint a narrowly
skewed picture of her misconduct and ignore several prosecutions of military
officials for far less serious violations.
Nevertheless, he does run the
Bureau, and so we must assume that his explicit guidance governs its
investigative standards: “Responsible decisions . . . consider the context of a
person’s actions, and how similar situations have been handled in the past.” If
that is the standard, there was no conceivable chance that Flynn could ever be
prosecuted for a Logan Act violation. Using the Logan Act as a pretext for
interrogation would have been improper. And Flynn is not a foreign agent. And there
was no need to “grill” him over the contents of a conversation of which the FBI
and Justice Department already had a recording. And the FBI has no business
probing the veracity of public statements made by presidential administrations
for political purposes — something it certainly resisted doing during the Obama
administration.
