Michael Flynn Is Owed an Apology

Remember when Michael Flynn was a traitor? It was early 2017. Democrats were still stinging from their defeat at the hands of Donald Trump. Every day, it seemed, brought news of another contact between Trumpworld and Russia.

Flynn, a retired three-star general, was forced to resign after serving less than a month as Trump’s national security adviser. He was said to have colluded with Russians during the presidential transition. For this he was defamed as a Russian agent and mocked as a bumbling Benedict Arnold. Former officials of Barack Obama’s administration hinted that Flynn had been compromised.

As it turns out, none of this was true. On Tuesday Flynn will receive a sentence for the one count to which he has pleaded guilty, lying to the FBI. Special Counsel Robert Mueller has recommended no jail time. Flynn will have a chance to get on with his life.

So how did Washington get sucked into believing that Michael Flynn had betrayed his country? Part of it, surely, is guilt by association; the proposition that Trump wants to appease Russia — even if he has not acted on his wishes — is not far-fetched. Trump has denied that the Russians hacked Democrats and released their emails, openly contradicting the U.S. intelligence community (and, for that matter, Flynn). During his campaign Trump flattered Russian President Vladimir Putin, and has continued to do so during his presidency.

The evidence that Flynn was acting on behalf of Russia, however, is lacking. Yes, he attended a gala for Russia’s propaganda network, RT, in 2015 before joining the Trump campaign. But during the transition, as incoming national security adviser, Flynn would have been expected to have contacts with Russia. It was Flynn’s concealment of his communications that attracted the FBI’s interest.

All of which is to say: Two years ago, outside observers could be excused for being suspicious of Michael Flynn’s ties to Russia. The same, however, cannot be said of the FBI.

According to the House Intelligence Committee’s report on the bureau’s investigation into the Trump campaign, former FBI Director James Comey himself authorized ending the bureau’s counterintelligence investigation into Flynn by the end of December 2016. That investigation remained open after the bureau learned that Flynn had misled Vice President Mike Pence and others in the Trump orbit about a phone call between himself at the Russian ambassador, Sergei Kislyak. U.S. intelligence monitored the conversation.

That conversation proved to be Flynn’s undoing. As I wrote at the time of his resignation, it is highly unusual for the contents of these monitored conversations to become public. But those leaks revealed that Flynn had misled the incoming Trump White House about the phone call.

It remains a mystery why Flynn, a man with a reputation for integrity and valor as both an officer and government official, would lie. Perhaps it was untoward, but there is nothing unusual about an incoming national security adviser contacting foreign diplomats during the presidential transition. Trump himself was doing this openly from Trump Tower. According to the House Intelligence Committee report, Flynn “requested that Russia not escalate the situation and only respond to the U.S. sanctions in a reciprocal manner.”

In no other era would these be grounds for treating a national security adviser like a member of a crime family. And yet that is exactly what the FBI did. On Jan. 24, 2017, then-Deputy FBI Director Andrew McCabe sent agents to discuss the phone call with Flynn without letting him know that he was being investigated. McCabe himself urged Flynn not to have a lawyer present, according to recent court filings. The agents interviewing Flynn knew exactly what he had said to Kislyak — they had a transcript of the call. The purpose of the interview was to try to catch Flynn in a lie.

Again, the question is not why the FBI would game an interview to its advantage; that’s what the FBI does. The question is this: What was the FBI investigating? The closest Congress has gotten to answering that question is in the report of the House Intelligence Committee, which says it received three conflicting responses.

One is that the FBI was investigating a possible violation of the Logan Act. This law, which dates to 1799 and makes it illegal for private citizens to conduct unauthorized negotiations with foreign powers, has never been successfully prosecuted. If this were what the Justice Department was investigating, it would at the very least be an abuse of prosecutorial discretion. Do Democrats want the Trump administration investigating John Kerry’s recent conversations with European and Iranian diplomats about the 2015 nuclear deal?

The other explanations are equally troubling. One is that the FBI continued its counterintelligence probe into Flynn even after its director wanted to end it. The other is that the FBI had an obligation to investigate Flynn’s “potentially misleading statements” to Vice President Mike Pence.

If that’s true, Americans might want to ask themselves if they want the FBI to investigate senior White House staff for misleading their colleagues. If this is the case, the current crime wave in official Washington dates to the late 18th century.

None of this is an excuse for Flynn. Lying to FBI agents is a serious matter. And not only did he lie about Russia, he also failed to register as a foreign agent for the government of Turkey, a crime that two of his former associates have now been charged with (Flynn has not).

But the context of a lie also matters. Nearly two years after the FBI trapped Flynn, the crime the Justice Department was investigating remains unknown. If it turns out that the reason Flynn was a target is as flimsy as violating the Logan Act or not being candid with his colleagues, then that itself is a scandal. The FBI’s independence is not a license to interfere in American politics.

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