Lawyers for former National Security Adviser Michael Flynn claim they have found a smoking gun to clear their client, but the newly disclosed documents the’re pointing to amount to nothing more than a stage prop.
So why the outcry from Flynn’s supporters? Because the documents may provide the dummy rounds Donald Trump needs to fire to justify a pardon of his friend and former national security adviser.
The fact remains that in January 2017, Flynn lied to the FBI about contacts with Russia—a crime he later admitted to in open court. Flynn now wants to withdraw his guilty plea, but his statements to the FBI were false when he made them, and they remain false today.
Flynn’s lies came during the FBI’s investigation into Russia interference in the 2016 election. According to Flynn’s statement of offense, he falsely denied asking Russia to refrain from retaliating against U.S. sanctions, which the U.S. government imposed in response to Russia’s attack on our election.
Flynn also lied about his request that Russia vote against a U.N. proposal regarding Israeli settlements. These conversations were significant because they undermined the foreign policy of the United States under the Obama administration. Telling Russia that it could disregard American sanctions was a betrayal of our country and provided serious cause for further investigation into connections between Russian and the campaign of Donald Trump.
Flynn also admitted to filing false statements with the Department of Justice pertaining to his work on behalf of the Republic of Turkey in violation of the Foreign Agents Registration Act. The new documents do nothing to change Flynn’s admissions about this crime.
Prosecutors shared the new documents with the defense following a review of the Flynn investigation ordered by Attorney General William Barr. Flynn’s lawyer Sidney Powell said the documents were “stunning” and show that Flynn was “set up” and “framed” by the FBI. In fact, they show no such thing. But that won’t stop Trump and his supporters from amplifying that message.
The documents contain handwritten notes and email messages discussing FBI strategy for an interview of Flynn. The notes list questions Flynn might ask so that agents would be prepared to answer them. They also list goals, which include “resolve the case,” “determine if Flynn will tell the truth about his relationship with Russians.” The notes also say, “What is our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?”
These notes do nothing to undermine confidence in Flynn’s guilty plea. First, the documents do not show what some call a “perjury trap.” The term “perjury trap” suggests that a person indeed lied, but that he was somehow tricked into doing so. According to the Justice Manual, a perjury trap exists where no legitimate investigative purpose exists for questioning a person. Here, the FBI had significant reasons to question Flynn about his conversations with the Russian ambassador.
The DOJ Inspector General found that the FBI’s Russia investigation was properly predicated and authorized, and that investigative decisions were not politically motivated. The FBI had a legitimate purpose and even a duty to learn whether Flynn was undermining U.S. foreign policy with Russia, not only to obtain evidence for a potential criminal case, but to understand the national security threat and to determine whether someone with a sensitive national security position like Flynn had been compromised by an adversary. The agents properly questioned Flynn, and he chose to lie. But “perjury trap” sounds good when you are attacking the FBI.
Second, the new documents do not show entrapment. Entrapment occurs when law enforcement creates a situation in which a person’s will is overborne, such as where an undercover officer offers an opportunity to make so much money in a drug deal that a person cannot resist. That is not what happened here. Agents identified themselves and asked Flynn questions. His choices were to decline to answer, tell the truth, or lie. He chose to lie. But many people do not understand the meaning of entrapment, and so Trump can use this as a new catch phrase, like “no collusion.”
Third, the failure of the prosecution to turn over the notes before Flynn’s plea do not amount to a violation of the so-called Brady rule. Brady material is evidence favorable to the accused that is material to guilt or punishment. Flynn’s crime was lying to the FBI. Agent notes about interview strategy do not negate Flynn’s lies. Even if the notes had revealed disdain for Flynn or Trump, which they do not, their opinions should not be conflated with facts that would negate guilt.
Finally, the documents contain email messages seeking guidance about warning Flynn that it is a crime to lie to the FBI. A person of Flynn’s sophistication should not need to be told he can’t lie to the FBI, but nonetheless, that is the FBI’s practice, and there is no claim that the agents failed to warn him. But it is important to understand what this warning is and is not. Unlike Miranda warnings, which are legally required to ensure voluntariness of confessions during questioning of suspects in custody, this warning is not legally required.
The FBI provides such warnings to make it easier for prosecutors to prove the element of willfulness at trial. This practice was still relatively new in 2017. As Flynn was a lieutenant general in the U.S. Army who was then serving as the national security adviser, a jury would very likely find that he knew it was illegal to lie to the FBI with no warning at all. Still, if Trump can argue that the FBI discussed downplaying the warning, he can add it to the grievances he lists to justify a pardon.
To be permitted to withdraw his guilty plea, Flynn must show a “fair and just reason.” These documents do not come close to that level. Even if Flynn were permitted to withdraw his guilty plea, his remedy would be to go to trial on these crimes, which would seem easily proved, unless, of course, current DOJ leadership decided to dismiss the charges. Using these documents to generate public outcry against the FBI could provide cover for Barr to do so.
Or they could be just enough for Trump to justify a pardon for Flynn. And once again, the president would be undermining public trust in law enforcement, making us all a little less safe.