Flynn case: Searing FBI misconduct

Let’s be clear: A crime was committed in the Michael Flynn case. But that crime was committed not by the retired general, but by someone who leaked the classified details of his conversations with then-Russian Ambassador Sergey Kislyak.

The Justice Department was correct to drop charges against Flynn for lying to the FBI about his communications with Kislyak. The case was reviewed by Jeff Jensen, the U.S. attorney for the Eastern District of Missouri with two decades of experience as a prosecutor and FBI special agent, and the resulting 108-page motion to dismiss is a searing indictment of FBI misconduct.

The department found that there was no legal justification for the FBI to question Flynn in the first place, because the interview was “untethered to, and unjustified by, the FBI’s counterintelligence investigation” of Flynn. The FBI had decided to close that inquiry because of an “absence of any derogatory information.” That meant Flynn pleaded guilty to making false statements that were not “material” to any investigation. For Flynn to have committed a crime, his statement had to have been “not simply false, but ‘materially’ false with respect to a matter under investigation.” In his plea, Flynn “stipulated to the essential element of materiality” without being informed that the FBI had already cleared him in the underlying investigation.

That fact alone is disgraceful. Even more outrageous is that the bureau interrogated

Flynn about communications the Justice Department says were “entirely appropriate.” He was the incoming national security adviser, and his “request that Russia avoid ‘escalating’ tensions in response to U.S. sanctions . . . was consistent with him advocating for, not against, the interests of the United States.” There was nothing in the calls to suggest he was being “directed and controlled by . . . the Russian federation.” And the FBI did not need his recollections of the calls because it had word-forword transcripts.

It seems clear that the purpose of the interview was to set a perjury trap. The agents did not inform the White House counsel before the interview so as to catch Flynn by surprise; they did not share the transcripts with Flynn during the interview (which would have allowed him to refresh his memory); they did not warn him that making false statements would be a crime — all of which are standard procedure. Even so, both of the agents who questioned him came away with the impression that “Flynn was not lying or did not think he was lying.”

For these and other reasons, the Justice Department withdrew the charges against Flynn. The fact that the judge in the case is refusing to accept the department’s decision — and has appointed a former judge to contest it — only perpetuates the FBI’s miscarriage of justice.

Instead of pursuing Flynn for a crime he did not commit, we should be focused on finding the individual who did commit a serious felony by leaking the classified details of Flynn’s conversations with Kislyak. And thanks to acting national intelligence director Richard Grenell,

we finally have a list of suspects.

Most government officials with access to the transcripts would not have known Flynn was on the call, because when a U.S. citizen is the subject of “incidental collection” during surveillance of a foreign national, their name is “masked.” On Wednesday, the Office of the Director of National Intelligence released a list of more than three dozen former Obama administration officials who submitted unmasking requests that revealed Flynn’s identity.

Only eight of those received information after the intelligence community discovered his communications with Kislyak on Jan. 4, 2017: former U.N. ambassador Samantha Power; former national intelligence director James R. Clapper Jr.; former treasury secretary Jack Lew; former White House chief of staff Denis McDonough; deputy national intelligence director Michael Dempsey; former deputy national intelligence director Stephanie L. O’Sullivan; a CIA official whose name is redacted; and former vice president Joe Biden.

The crime of leaking the details about Flynn and Kislyak’s call could only have been committed by a small universe of people who had access to the unmasked intelligence on Flynn. We don’t know whether it was someone on the list. That is for U.S. Attorney John Durham, who is investigating the origins of the Russia probe, to determine. But this much is certain: Obama administration officials leaked unmasked intelligence about Flynn to the press. The fact that those individuals have gone unpunished for three years, while Flynn has endured a legal hell, is appalling.