Consortiumnews
The Scalp-Taking of Gen. Flynn
December 1, 2017
Exclusive: The Russia-gate prosecutors have taken the scalp of ex- National
Security Adviser (and retired Lt. Gen.) Flynn for lying to the FBI. But this
case shows how dangerously far afield this "scandal" has gone, reports
Robert Parry.
By Robert Parry
Russia-gate enthusiasts are thrilled over the guilty plea of President
Trump's former National Security Adviser Michael Flynn for lying to the FBI
about pre-inauguration conversations with the Russian ambassador, but the
case should alarm true civil libertarians.
Retired U.S. Army Lt. Gen Michael Flynn at a campaign rally for Donald Trump
at the Phoenix Convention Center in Phoenix, Arizona. Oct. 29, 2016. (Flickr
Gage Skidmore)
What is arguably most disturbing about this case is that then-National
Security Adviser Flynn was pushed into a perjury trap by Obama
administration holdovers at the Justice Department who concocted an
unorthodox legal rationale for subjecting Flynn to an FBI interrogation four
days after he took office, testing Flynn's recollection of the conversations
while the FBI agents had transcripts of the calls intercepted by the
National Security Agency.
In other words, the Justice Department wasn't seeking information about what
Flynn said to Russian Ambassador Sergey Kislyak - the intelligence agencies
already had that information. Instead, Flynn was being quizzed on his
precise recollection of the conversations and nailed for lying when his
recollections deviated from the transcripts.
For Americans who worry about how the pervasive surveillance powers of the
U.S. government could be put to use criminalizing otherwise constitutionally
protected speech and political associations, Flynn's prosecution represents
a troubling precedent.
Though Flynn clearly can be faulted for his judgment, he was, in a sense, a
marked man the moment he accepted the job of national security adviser. In
summer 2016, Democrats seethed over Flynn's participation in chants at the
Republican National Convention to "lock her [Hillary Clinton] up!"
Then, just four days into the Trump presidency, an Obama holdover,
then-acting Attorney General Sally Yates, primed the Flynn perjury trap by
coming up with a novel legal theory that Flynn - although the national
security adviser-designate at the time of his late December phone calls with
Kislyak - was violating the 1799 Logan Act, which prohibits private citizens
from interfering with U.S. foreign policy.
But that law - passed during President John Adams's administration in the
era of the Alien and Sedition Acts - was never intended to apply to incoming
officials in the transition period between elected presidential
administrations and - in the past 218 years - the law has resulted in no
successful prosecution at all and thus its dubious constitutionality has
never been adjudicated.
Stretching Logic
But Yates extrapolated from her unusual Logan Act theory to speculate that
since Flynn's publicly known explanation of the conversation with Kislyak
deviated somewhat from the transcript of the intercepts, Flynn might be
vulnerable to Russian blackmail.
Russia's former Ambassador to the United States Sergey Kislyak. (Photo from
Russian Embassy)
Yet, that bizarre speculation would require that the Russians first would
have detected the discrepancies; secondly, they would have naively assumed
that the U.S. intelligence agencies had not intercepted the conversations,
which would have negated any blackmail potential; and thirdly, the Russians
would have to do something so ridiculously heavy-handed - trying to
blackmail Flynn - that it would poison relations with the new Trump
administration.
Yates's legal theorizing was so elastic and speculative that it could be
used to justify subjecting almost anyone to FBI interrogation with the
knowledge that their imperfect memories would guarantee the grounds for
prosecution based on NSA intercepts of their communications.
Basically, the Obama holdovers concocted a preposterous legal theory to do
whatever they could to sabotage the Trump administration, which they held in
fulsome disdain.
At the time of Flynn's interrogation, the Justice Department was under the
control of Yates and the FBI was still under President Obama's FBI Director
James Comey, another official hostile to the Trump administration who later
was fired by Trump.
The Yates-FBI perjury trap also was sprung on Flynn in the first days of the
Trump presidency amid reverberations of the massive anti-Trump protests that
had arisen across the country in support of demands for a "#Resistance" to
Trump's rule.
Flynn also had infuriated Democrats when he joined in chants at the
Republican National Convention of "lock her up" over Democratic presidential
nominee Hillary Clinton's use of a private email server and other alleged
offenses. So, in targeting Flynn, there was a mix of personal payback and
sabotage against the Trump administration.
The Legal Construct
The two-page complaint against Flynn, made public on Friday, references
false statements to the FBI regarding two conversations with Kisylak, one on
Dec. 22, 2016, and the other on Dec. 29, 2016.
Hillary Clinton speaking at a rally in Phoenix, Arizona, March 21, 2016.
(Photo by Gage Skidmore)
The first item in the complaint alleges that Flynn did not disclose that he
had asked the Russian ambassador to help delay or defeat a United Nations
Security Council vote censuring Israel for building settlements on
Palestinian territory.
The New York Times reported on Friday that Russia-gate investigators
"learned through witnesses and documents that Israeli Prime Minister
Benjamin Netanyahu asked the Trump transition team to lobby other countries
to help Israel, according to two people briefed on the inquiry.
"Investigators have learned that Mr. Flynn and Mr. Trump's son-in-law and
senior adviser, Jared Kushner, took the lead in those efforts. Mr. Mueller's
team has emails that show Mr. Flynn saying he would work to kill the vote,
the people briefed on the matter said," according to the Times.
Breaking with past U.S. precedents, President Obama had decided not to veto
the resolution criticizing Israel, choosing instead to abstain. However, the
censure resolution carried with Russian support, meaning that whatever
lobbying Flynn and Kushner undertook was unsuccessful.
But the inclusion of this Israeli element shows how far afield the criminal
Russia-gate investigation, headed by former FBI Director Robert Mueller, has
gone. Though the original point of the inquiry was whether the Trump team
colluded with Russians to use "hacked" emails to defeat Hillary Clinton's
campaign, the criminal charge against Flynn has nothing to do with election
"collusion" but rather President-elect Trump's aides weighing in on foreign
policy controversies during the transition. And, the first initiative was
undertaken at the request of Israeli Prime Minister Netanyahu, not Russian
President Vladimir Putin.
The second item, cited by Mueller's prosecutors, referenced a Dec. 29
Flynn-Kislyak conversation, which received public attention at the time of
Flynn's Feb. 13 resignation after only 24 days on the job. That phone call
touched on Russia's response to President Obama's decision to issue new
sanctions against the Kremlin for the alleged election interference.
The complaint alleges that Flynn didn't mention to the FBI that he had urged
Kislyak "to refrain from escalating the situation" and that Kislyak had
subsequently told him that "Russia had chosen to moderate its response to
those sanctions as a result of his request."
The Dec. 29 phone call occurred while Flynn was vacationing in the Dominican
Republic and thus he would have been without the usual support staff for
memorializing or transcribing official conversations. So, the FBI agents,
with the NSA's transcripts, would have had a clearer account of what was
said than Flynn likely had from memory. The content of Flynn's request to
Kislyak also appears rather uncontroversial, asking the Russians not to
overreact to a punitive policy from the outgoing Obama administration.
In other words, both of the Flynn-Kislyak conversations appear rather
unsurprising, if not inconsequential. One was taken at the behest of Israel
(which proved ineffective) and the other urged the Kremlin to show restraint
in its response to a last-minute slap from President Obama (which simply
delayed Russian retaliation by several months).
Double Standards
While Flynn's humiliation has brought some palpable joy to the anti-Trump
"Resistance" - one more Trump aide being taken down amid renewed hope that
this investigation will somehow lead to Trump's resignation or impeachment -
many of the same people would be howling about trampled civil liberties if a
Republican bureaucracy were playing this game on a Democratic president and
his staff.
Retired Lt. Gen. Michael Flynn attending a dinner marking the RT network's
10-year anniversary in Moscow, December 2015, sitting at the same table as
Russian President Vladimir Putin and Green Party leader Jill Stein.
Indeed, in the turnabout-is-fair-play department, there is some equivalence
in what is happening over Russia-gate to what the Republicans did in the
1990s exploiting their control of the special-prosecutor apparatus in the
first years of Bill Clinton's presidency when interminable investigations
into such side issues as his Whitewater real-estate deal and the firing of
the White House travel office staff plagued the Clinton administration.
Similarly, Republicans seized on the deaths of four U.S. diplomatic
personnel on Sept. 11, 2012, in Benghazi, Libya, to conduct a series of
lengthy investigations to tarnish Secretary of State Hillary Clinton's
tenure and raise questions about her judgment. Democrats understandably
called these attacks partisan warfare in legal or investigative garb.
What I have heard from many Hillary Clinton supporters in recent months is
that they don't care about the unfairness of the Russia-gate process or the
dangerous precedents that such politicized prosecutions might set. They
simply view Trump as such a danger that he must be destroyed at whatever the
cost.
Yet, besides the collateral damage inflicted on mid-level government
officials such as retired Lt. Gen. Flynn facing personal destruction at the
hands of federal prosecutors with unlimited budgets, there is this deepening
pattern of using criminal law to settle political differences, a process
more common in authoritarian states.
As much as the Russia-gate enthusiasts talk about how they are upholding
"the rule of law," there is the troubling appearance that the law is simply
being used to collect the scalps of political enemies.