National Security Adviser Michael Flynn was dismissed amid a torrent of mainstream-media reporting and disgraceful government leaks (but I repeat myself).
Among the most intriguing was a New York Times report the morning after Flynn’s resignation, explaining that the former three-star Army general and head of the Defense Intelligence Agency was “grilled” by FBI agents “about a phone call he had had with Russia’s ambassador.”
No fewer than seven veteran Times reporters contributed to the story, the Gray Lady having dedicated more resources to undermining the Trump administration than the Republican Congress has to advancing Trump’s agenda.
Remarkably, none of the able journalists appears to have asked a screamingly obvious question — a question that would have been driving press coverage had an Obama administration operative been in the Bureau’s hot seat.
On what basis was the FBI investigating General Flynn?
To predicate an investigation under FBI guidelines, there must be good-faith suspicion that
(a) a federal crime has been or is being committed,
(b) there is a threat to American national security, or
(c) there is an opportunity to collect foreign intelligence relevant to a priority established by the executive branch.
These categories frequently overlap — e.g., a terrorist will typically commit several crimes in a plot that threatens national security, and when captured he will be a source of foreign intelligence.
Categories (a) and (b) are self-explanatory.
It is category (c), intelligence collection, that is most pertinent to our consideration of Flynn.
At first blush, this category seems limitless: unmooring government investigators from the constraints that normally confine their intrusions on our liberty (e.g., snooping, search warrants, interrogations) to situations in which there is real reason to suspect unlawful or dangerous activity.
Intelligence collection, after all, is just the gathering of information that can be refined into a reliable basis for decisions by policymakers. As we shall see, it is not limitless. But we should understand why it needs to be broad.
Most people think of the FBI as a federal police department that does gumshoe detective work, albeit at a high level and with peerless forensic capabilities.
That, indeed, is how I thought of the FBI for my first eight years as a federal prosecutor, before I began investigating terrorism cases and became acquainted with the FBI’s night job.
Turns out the FBI’s house has a whole other wing, separate and apart from its criminal-investigation division.
Back in pre-9/11 days, this side of the house was called the foreign counter-intelligence division. Now, it is the national-security branch.
Whatever the name, it is our domestic security service, protecting the nation against hostile foreign activity — espionage, other hostile intelligence ops, terrorism, acquisition of technology and components of weapons of mass destruction, and so on. Most of the national-security branch’s work is done in secret, never intended to see the light of day in courtroom prosecutions.
In some countries, including Britain, domestic security is handled by an agency (MI5) independent of domestic law enforcement (MI6).
In our country, it is handled by a single agency, the FBI, based on the assumption (a sound one in my opinion) that the two missions are interrelated and that one can leverage the other more easily under one roof.
The FBI also has the foreign-intelligence gig because the Bureau is fully constrained by the Constitution and other federal law. Our other intelligence agencies — the best example is the CIA — are prohibited from “spying” inside the United States, largely because their foreign operations are outside the jurisdiction and fetters of American law.
We understand that our security requires that our domestic security service have wide intelligence-gathering latitude; but we do not permit it to be limitless — it must respect our constitutional rights.
So how do we make sure the FBI does that if we’re giving it license to investigate people even when it does not suspect a crime or a threat?
We do it by dividing the subjects of its intelligence investigations into three classifications and giving the FBI commonsense authority to deal with each.
1. Aliens acting as overt foreign agents
The first classification, and the easiest to grasp, consists of aliens who overtly work as foreign agents.
Such a person — for example, Sergey Kislyak, the Russian ambassador with whom General Flynn communicated — is a non-American (i.e., one who does not have the full-blown constitutional rights of an American citizen) and is openly acting on behalf of a foreign regime — in the case of Russia, a regime notoriously hostile to U.S. interests.
Clearly, there is no problem with his being targeted by the FBI for intelligence-gathering purposes.
Note that, because the FBI is constrained by federal law, even overt foreign operatives have significant protections.
The second classification is more complicated: American citizens who act as agents of foreign powers. Contrary to the legal illiteracy dismayingly peddled by Fox News from time to time, one can be an American citizen and nonetheless be an agent of a foreign power, and therefore subject to investigation under the FBI’s foreign-intelligence-gathering authority, even if there is no suspicion of criminal wrongdoing.
To get that kind of authority, as presaged above, the FBI and Justice Department must seek warrants from the secret court established by the Foreign Intelligence Surveillance Act of 1978 (the FISA Court).
“The FBI should . . . operate openly and consensually with U.S. persons to the extent practicable when collecting foreign intelligence that does not concern criminal activities or threats to the national security.”
His communications with Kislyak were just some of the many conversations Flynn was having with foreign officials.
Obama officials asked the FBI if a quid pro quo had been discussed on the call, and the answer came back no, according to one of the officials, who like others asked not to be named discussing delicate communications. The topic of sanctions came up, they were told, but there was no deal.
That’s a good one. Let me translate:
The officials don’t want you to know who they are because they are corrupt —
(a) FISA intercepts are classified, so disclosing them to the press is a crime;
(b) by revealing the Flynn–Kislyak conversation to the press, the “officials” inform the Russians that whatever countermeasures they are taking against U.S. surveillance have failed, assuring that the Russians will alter their tactics, making the job of our honorable intelligence agents more difficult; and
(c) the FBI’s investigative powers are not supposed to be put in in the service of a political party’s effort to advance a partisan storyline, like “Putin hacked the election.” So since there was no impropriety in Flynn’s call to the Russian ambassador, why did the Bureau continue investigating Flynn? Why did FBI agents interrogate him?
According to press reports of other rogue intelligence leaks, the FBI was sicced on Flynn after Trump officials gave inaccurate public statements about his conversation with Kislyak, to wit:
They said that it had not touched on the punitive actions President Obama took against Russia on the same day the conversation took place, when in fact there had been some discussion of that topic — which the FBI and Justice Department knew from the recording.
Specifically, Flynn denied any discussion of these sanctions, unnamed Trump officials denied it to the Washington Post, Vice President Pence denied it in a CBS interview shortly before the inauguration, and finally White House spokesman Sean Spicer denied it again on January 23.
According to the Times, it was the Spicer denial that triggered the FBI’s interrogation.
It was as if the Bureau and Justice Department intentionally waited to pounce until Trump was in power — which meant that any misstatement could now be framed as a false representation by the sitting president. But just ask anyone who knows that you can’t keep your health-care plan and your doctor if you like them, that the Benghazi massacre was not caused by a video, that the IRS really did harass Americans over their political beliefs, and that Iran will be allowed to develop nuclear weapons.
Anyone who knows those things — that would be all of us — also must know that misleading statements by presidential administrations, even egregious ones, are not grounds for FBI investigations.
They are left to the political process to sort out, and we don’t want the FBI turned into a political weapon. So how come the FBI got involved here?
Is the FBI saying that Mike Flynn is an agent of a foreign power? A covert Russian operative? That would be absurd.
As I’ve detailed, Flynn is on record — unambiguously, in the core theme in his bestselling book — urging Americans to view Russia as an implacable enemy of the United States that must be checked.
Now, are you unhappy — as I am unhappy — with the Trump administration’s blandishments toward the murderous, anti-American Putin regime?
Sure . . . but that does not make Flynn and other Trump officials Russian agents — any more than Obama is an Iranian agent. Again, political disagreement is not a rationalization for drawing a ridiculous legal conclusion (“maybe he’s a ‘foreign agent’”) as a pretext for an investigation by the FBI.
Fear of blackmail? That is a theory purportedly advanced by former acting attorney general Sally Yates, an Obama political hack who was eventually fired for insubordination by Trump (who had foolishly retained her).
The blackmail theory is almost too stupid to regurgitate. If you can follow this, the idea is that the Russians knew that Flynn withheld information about his Kislyak call from the Trump administration and was therefore vulnerable to extortion — i.e., the Russians could expose his concealment if he didn’t do their bidding. It should go without saying that blackmail works only if the compromising information is not in the possession of the aggrieved party.
Here, the United States — i.e., the Trump administration itself — had a recording of the Flynn–Kislyak call, a fact that both Russia and Flynn (who is deeply versed in intelligence craft) had to know was highly likely. Finally, there’s Flynn’s supposed potential criminal violation of the 1799 Logan Act.
Recall what we said at the start: The FBI’s criminal investigation and domestic security functions overlap. If there is not a valid foreign-intelligence basis to investigate someone, a potential law violation could do the trick. But . . . the Logan Act? Are you kidding?
The statute is a discredited relic of the President John Adams administration’s over-criminalization of political speech on the grounds of its purported seditiousness. It is a highly dubious prohibition against foreign-policy freelancing by American citizens acting without executive-branch permission. As Jeremy Duda comprehensively explains in the Washington Post, in its 218-year history, there has been just a single Logan Act prosecution, ever — an unsuccessful, aborted charge brought in 1803 by an Adams-appointed U.S. attorney. It is not enough to say it is ludicrous to contemplate a Logan Act prosecution against a transition official who was the incoming national-security adviser over a phone call with a foreign ambassador.
Beyond that, we must refer to the high-profile July 2016 press conference held by FBI director James Comey.
In contrast to General Flynn, as to whom there is no evidence of criminal wrongdoing, there was a Mount Olympus of damning proof that Hillary Clinton committed felony violations of a law against mishandling classified information.
Yet Director Comey concluded that “no reasonable prosecutor” would consider indicting Mrs. Clinton. Why? Because behavior of the type in which she engaged is never prosecuted.
Now it happens that Comey was wrong about Clinton — to make his assertion, he had to paint a narrowly skewed picture of her misconduct and ignore several prosecutions of military officials for far less serious violations. Nevertheless, he does run the Bureau, and so we must assume that his explicit guidance governs its investigative standards:
“Responsible decisions . . . consider the context of a person’s actions, and how similar situations have been handled in the past.”
If that is the standard, there was no conceivable chance that Flynn could ever be prosecuted for a Logan Act violation.
Using the Logan Act as a pretext for interrogation would have been improper. And Flynn is not a foreign agent. And the FBI has no business probing the veracity of public statements made by presidential administrations for political purposes — something it certainly resisted doing during the Obama administration. There appears to have been no foreign-intelligence or criminal-investigative purpose served by the FBI’s interrogation of General Flynn.
It is easy to see why Democrats would want to portray Flynn’s contact with the Russian ambassador as worthy of an FBI investigation.
But why did the FBI and the Justice Department investigate Flynn — and why did “officials” make sure the press found out about it?