FBI hand-slapping outweighs any lies by Michael Flynn

Despite the recent court filing by former national security adviser and retired Gen. Michael Flynn about altered FBI interview summaries, there is unlikely to be any revelation that will overcome his admission under oath that he did, in fact, lie.

As a former FBI agent of 23 years, I understand how vital it is for the FBI to obtain facts during a criminal investigation. It is a crime to lie to the FBI for this reason. The FBI’s right to know the truth, however, is not absolute. Before it seeks the truth, it must have a valid reason to do so.

It’s hard to see that reason in Michael Flynn’s case.

To be sure, Gen. Flynn pled guilty to misleading FBI agents about whether he discussed sanctions during his December 2016 telephone conversations with Russian Ambassador Sergey Kislyak. I’m not sure why he misled agents. Maybe ample press accounts of possible Logan Act violations led Flynn to believe he might be prosecuted. Maybe he married himself to a false narrative he couldn’t change without embarrassing the incoming Trump administration. 

Or, maybe, as the incoming national security advisor and a career intelligence official, his first instinct was to be purposely vague about the details of foreign policy discussions, which the FBI arguably had no need to know.

That said, although Flynn had an ethical obligation to tell the truth, since it does not appear his deception covered up a crime or prevented the FBI from obtaining information it did not already have, I’m skeptical a jury would have found that Flynn had a legal obligation to do so. More disturbing, however, is the apparent lack of a legitimate reason to interview Flynn in the first place.

Was it the Logan Act, which prohibits negotiation by unauthorized persons (in this case Flynn) with foreign governments having a dispute with the United States (in this case Russia)? This rationale would have been troubling. It is not unprecedented, or even unusual, for members of an incoming presidential administration to unofficially discuss policy with the same foreign representatives they soon will be dealing with officially. 

Flynn’s Kislyak conversations fall into this category. While they arguably constitute a technical violation of the Logan Act, there isn’t a prosecutor worth his salt who would consider criminalizing a conversation that would be legal in a few weeks. A jury likely would agree.

Was it, perhaps, that FBI counter-intelligence officials genuinely believed Flynn had been compromised by the Russians? Granted, some government officials questioned his leadership style while at the Pentagon. And Flynn had showed questionable judgment at times. In 2015, for example, in an unusual move for a former U.S. intelligence official, Flynn accepted a paid speaking engagement and sat next to Vladimir Putin at a gala honoring Russia Today, a state-sponsored news organization. If this was the reason, however, putting Flynn on notice by interviewing him about a series of conversations for which the FBI already had recordings would not have been the competent way to discern this. More likely, the possibility of a compromised Flynn was ruled out before the interview.

Or was it, as former FBI director James Comey claimed, that as part of its investigation into the possibility of Russia collusion with the Trump campaign, the FBI wanted to understand why Flynn would mislead the vice president about his discussions with the Russian ambassador? Plausible, but given the circumstances, Flynn should have been presented with the FBI’s knowledge of the disparity and asked for an explanation, something the FBI apparently left without. This casts doubt that this was the true purpose of the interview.

No, it wasn’t about the Logan Act. Nor was it the remote possibility of treason, or solely an FBI desire to understand Russia collusion.

That Flynn was interviewed at all is part of what apparently was a dangerous trend at the highest levels of the FBI: a willingness to engage in “behavior regulation,” as opposed to legitimate criminal inquiry.

In 2016, contrary to Justice Department guidelines against any FBI action that may lead to the perception of partisanship during an election cycle, Comey scolded presidential candidate Hillary Clinton on national television, calling her “extremely careless” for her role in using a private email server to conduct government business. Before doing so, Comey ruled out prosecuting Mrs. Clinton, thus guaranteeing he would be the final arbiter of her “behavior.”

In 2017, after watching Flynn’s undignified bombast during the presidential campaign, something anathema to career law enforcement officials who generally believe career military officers should forever remain above the political fray, Comey sent two FBI agents to the White House to interview Flynn about his misleading statements. The purpose of the interview smacks of an effort to put Flynn on notice — slap him on the wrist, so to speak, for his pomposity, including for his chants of “lock her up” at the 2016 Republican convention. 

This may have been okay if misleading the press or his superiors was a crime. It was not.

Former special counsel Robert Mueller is not absolved in this. He should have recognized the insufficiency of the circumstances of Flynn’s interview, the weak predication, the lack of materiality of Flynn’s false statements. Instead, knowing the difficulty and expense of testing the matter in court, Mueller maneuvered to use the charge, not just to punish Flynn for his abominable behavior during the campaign, but to send a signal to other potential witnesses (and the nation) about the perils of lying to the FBI. 

In doing so, Mueller made himself the final authority on Flynn’s “behavior” with no further check and balance on what civil libertarians ultimately may conclude was an injudicious use of Title 18 U.S.C. §1001 (false statements), the government’s most powerful tool.

Put another way, Mueller spanked us all.

Behavior regulation is often conducted unconsciously. Public servants occasionally are blinded by a misguided belief in the superiority of their judgment. The problem is that, in a judicial process, for any one person’s judgment to prevail, the checks and balances in that process must first be disabled. This was consciously done in the hand-slapping of both Clinton and Flynn. There is no law against it. It is a matter of discretion and ethics.

Russia’s disinformation campaign had a corrosive effect on our democracy. It was vital for the special counsel to determine its nature and extent, including whether the Trump campaign conspired with Russia to affect the outcome of the 2016 presidential election. He did a laudable job. Some may consider charging Flynn with false statements a small price to pay to do this job. But the repercussions of the behavior-regulation of Flynn and Clinton includes the lingering perception of partisanship at the highest levels of the FBI.

This perception will have a similarly corrosive effect for years to come.

James S. Davidson was an FBI special agent for 23 years. He investigated major crimes in Texas and California, and served in Ukraine, Israel and Washington, D.C. He is now president of Protect the FBI, a non-partisan 501(c)(4) whose mission is to safeguard the FBI from partisan politics. Follow him on Twitter @jamessdavidson2.