The Mercury News

Someone committed a crime in this case, but it was not Flynn

- By Marc A. Thiessen Marc Thiessen writes for the Washington Post.

WASHINGTON >> 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 to begin with, 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 weren’t “material” to any investigat­ion. For Flynn to have committed a crime, his statement needed to be “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’s 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.” Nothing in the calls suggests he was being “directed and controlled by … the Russian federation.” And the FBI didn’t need his recollecti­ons of the calls because it had word-for-word transcript­s.

Clearly, the purpose of the interview was to set a perjury trap. The agents didn’t inform the White House counsel before the interview so as to catch Flynn by surprise; they didn’t share the transcript­s with Flynn during the interview (which would’ve allowed him to refresh his memory); they didn’t warn him that making false statements was a crime — all of which are standard procedure. And both 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. 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 didn’t 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 wouldn’t 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.” Only certain officials had the authority to request that a name be unmasked. Until now, we didn’t know which officials had done so. But on Wednesday, the Office of the Director of National Intelligen­ce released a list of over 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’s 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.

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