Flynn’s prosecution: The more we learn, the worse it seems

Two recent events, tangentially related, likely were lost in the news cycle of the spike in COVID-19 cases and continued civil unrest in American cities. The first development was the U.S. Court of Appeals for the D.C. Circuit ordering Judge Emmet Sullivan to dispose of former national security adviser Michael Flynn’s case, followed by the disclosure of additional FBI notes related to the matter. 

Flynn’s attorney, Sidney Powell, petitioned the court to order Sullivan to dismiss the appeals court case. Since both the prosecution and defense agree that the case should be dismissed, it had been in judicial limbo while the judge was deciding if he wanted to dismiss it or move forward with sentencing. This is the second federal court in less than a year to rebuke the FBI, with Judge Neomi Rao’s opinion noting the agency’s handling of cases related to the failed Russia collusion narrative. The Foreign Intelligence Surveillance Act (FISA) court also did so in December.

The second, and perhaps more significant, news was the revelation that additional evidence in the FBI’s possession was not previously turned over to Flynn or his attorneys. In a landmark case that is rapidly becoming known to many Americans, the Supreme Court held in Brady v. Maryland in 1963 that prosecutors must disclose the existence of exculpatory evidence to a defendant, regardless of how they obtained it or if it relates to their theory of prosecution. And therein lies a two-part problem with the recent disclosure of a handwritten note by fired deputy assistant FBI director Peter Strzok. 

The first problem is that such nondisclosure would even occur — especially in the courtroom of Judge Sullivan, who was burned by prosecutors’ violations of the Brady rule, including the 2008 prosecution of former Sen. Ted Stevens (R-Alaska). Sullivan starts his trials with a strict admonition about Brady and stresses the continuing obligation on the part of the government. The second concern is that Strzok’s notes appear to document that then-President Obama and then-Vice President Joe Biden were driving a criminal investigation of a senior official of an incoming administration from the Oval Office. 

As we learned from the events surrounding former FBI Director Jim Comey’s “send a couple of guys over” scenario, wherein he dispatched agents to interview Flynn at the White House on Jan. 24, 2017, there is traditionally a firewall between the FBI and the White House. The latter does not direct criminal investigations, and the former does not report results directly to the latter. It is what many found troubling about President Trump’s one-on-one “I need your loyalty” speech with Comey before he was fired. The firewall is the Department of Justice and the White House counsel who negotiate on sensitive matters such as interviews and investigations.  

The Strzok notes reportedly are from a Jan. 5, 2017, Oval Office meeting later documented in former national security adviser Susan Rice’s infamous email to herself on Trump’s inauguration day. The timing is important because this was the day after the FBI closed “Crossfire Razor,” the Flynn investigation, Jan. 4, 2017. The Justice Department confirmed the notes were from between Jan. 3 and Jan. 5, 2017, and Attorney General William Barr and Strzok’s attorney, Aitan Goelman, both have said Strzok was not a participant in the Jan. 5 Oval Office meeting. Interestingly, although he is willing to comment that the notes have been taken out of context and are being weaponized by the White House for political purposes, Goelman did not say where Strzok heard the details that he documented.  

There are reports of interviews and testimony of other participants from the Oval Office meeting after the fact, which focus on the appropriateness of the FBI interview of Flynn and potential concerns about counterintelligence. Biden has said he knew nothing about the Flynn investigation. But these denials come after the fact and before the appropriateness of the Flynn interview came into question — and certainly before the evidence emerged of an internal FBI debate about interviewing him. Thus, any notes taken by Strzok on or about Jan. 5, 2017, even if they are from a briefing after the fact, seem particularly relevant.  

So what is in the Strzok notes that might be problematic? First, Comey apparently advised the group that Flynn’s phone call with Russia’s former ambassador Sergey Kislyak “appears legit.” This is significant because it provides evidence that when Comey dispatched agents, including Strzok, 19 days later to interview Flynn, there apparently was not really a counterintelligence concern, which now appears to be the after-the-fact justification for the interview. Notes by former FBI Assistant Director Bill Priestap, disclosed earlier, appear to validate this as well. 

A second important notation by Strzok reads “VP: Logan Act,” suggesting that Biden raised the idea of using the Logan Act, which forbids unauthorized citizens from negotiating with a foreign government. Since we know from recently released emails that former Acting Assistant Attorney General Mary McCord, Strzok and FBI lawyer Lisa Page all researched the Logan Act, it’s unlikely that Biden pulled this out of thin air, if indeed he mentioned it. In other words, it likely was discussed before the Jan. 5, 2017, meeting. 

The most problematic of Strzok’s notations is from “P” — widely assumed to refer to Obama — reportedly saying, “Make sure you look at things + have the right people on it.” Can there be any doubt that, if the president gave such direction, Comey likely felt completely emboldened to then “send a couple of guys over” to interview Flynn? 

While it is true we have a unitary executive, with the president saying grace over all of the executive branch, it also is true that, especially since Watergate, there has been an acknowledgement from administrations of both parties that the White House should not direct criminal investigations against American citizens. This should be especially obvious when the target is a member of a new administration of the opposing party after a contentious election.

James M. Casey was a police officer and FBI agent for 32 years. He served on the National Security Council in 2004-2005, and retired as the Special Agent in Charge of the FBI’s Jacksonville Division in 2012. He is president of FCS Global Advisors, a private investigative and crisis management firm.