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The original guilty plea was secured on December 1, 2017. This was over ten months after two FBI agents interviewed Flynn on January 24, 2017 concerning conversations he had with the Russian ambassador, Sergey Kislyak, before Donald Trump was inaugurated as President.
Liberal commentators have rushed to denounce the decision as purely political, but they present a weak case against Barr's motion to set aside the guilty plea, which they argue is yet the latest chapter in the Trump coverup that began with Barr's criticism of the Mueller report of March 2019.
Law professors Neal Katyal and Joshua Geltzer, writing in the New York Times, argue that "appalling damage" will result from the DOJ's decision, noting that Flynn had twice pleaded guilty to lying to the FBI, and that the FBI had done nothing to "set up" or entrap Flynn. In a similar vein, a bellicose indictment on the blog Lawfare spares no venom in denouncing an "Ugly Day for the Justice Department."
But both polemics overlook a crucial fact: the corrupt behavior of key government officials — including FBI director James Comey, Chief of Counterintelligence Peter Strzok, and senior FBI lawyer Lisa Page — in the Flynn scandal.
Katyal and Geltzer make no mention of them, and then flatly reject the claim of the Barr Report that it was inappropriate for the FBI to interview Flynn at all. The Lawfare piece reveals its (left-wing) political orientation by saying that the DOJ's motion "portrays FBI Director James Comey as insubordinate to a hapless Deputy Attorney General Sally Yates; and it portrays FBI officials Peter Strzok and Lisa Page as scheming villains."
The Lawfare post also leaves unmentioned the Report from Inspector General Michael Horowitz concerning the FBI's behavior in its Crossfire Hurricane Investigation into the 2016 election cycle, which offered abundant evidence that these three high-ranking FBI officials, among others, had misused the power of their office to target candidate Trump.
Trump's unanticipated election gave them an obvious reason to conceal their misdeeds in the transition period between November 2016 and January 2017. One reason to get Flynn out of the way, as former prosecutor Andrew McCarthy argues in the National Review, was to stop any investigation of the Obama administration, as well as to pave the way for what turned out to be a 674-day investigation of the Trump administration from May 2017 to March 2019.
The Barr Report is replete with damning quotations from Comey, Strzok, and Page that must be explained away if the media attacks against the DOJ and Barr are to be sustained. But neither of these two articles attempt to expose the supposed misrepresentations of the Barr Report or to explain why Mueller was right to impose a guilty plea. The glittering generalities found in these two pieces will not do the trick. What is needed is a line-by-line refutation of the evidence.
It is critical to put the current controversy within some larger analytical framework. The first point is that all prosecutors in cases both large and small possess monopoly power because they can compel people to respond to their charges. Here, as with private monopolies, the law must provide some counterweight to prevent an abuse of power: the prosecution and settlement must be subject to some form of oversight, so that someone, typically a judge, can review the decisions of the prosecutor. But too much oversight can prevent many valid prosecutions while too little can generate prosecutorial dispute. The institutional question is how to minimize the sum of both kinds of error.
This problem arises commonly in dealing with government searches and seizures, and is neatly encapsulated in an oft-quoted dictum from New York Judge Benjamin Cardozo in People v. Defore (1926): "The criminal is to go free because the constable has blundered." Defore involved an application to suppress probative evidence on the question of whether the defendant should be convicted of illegal possession of a weapon. The defendant attacked the government action as an unreasonable search and seizure. Cardozo took the position that any police irregularity should be handled independently of the underlying criminal offense in order to avoid letting a guilty person go free.
That system would make sense if some reliable system of criminal administration could be put in place to control police misconduct, but public agencies charged with police oversight often prove reluctant to punish wayward officers. Time therefore has not been kind to Cardozo. The watershed 1961 Supreme Court case of Mapp v. Ohio overturned long-established precedent by holding that the Fourth Amendment requires courts to treat probative evidence as inadmissible, even if some guilty parties will escape punishment.
This so-called exclusionary rule is a second-best rule that consciously tolerates individual instances of injustice in order to forestall what is perceived as the greater institutional risk of rogue government behavior. And just that tradeoff is involved in the Flynn case: Should we disregard the plea because of government misbehavior, or should we instead maintain the charge? To see whether Barr should escape harsh criticism, it is necessary to examine the reasons for letting Flynn off.
The first issue is to determine whether Flynn did in fact lie to the FBI agents in January 2017. The guilty plea in question is not conclusive on that point. Flynn responded equivocally to the FBI agents' (one of whom was Strzok) questions of whether he had encouraged Kislyak not "to escalate the situation": "Not really," Flynn said. "I don't remember. It wasn't, ‘Don't do anything.'" Flynn also stated that he did not recall asking the ambassador to Russia to moderate its response to United States actions.
This exchange is highly inconclusive, and both FBI agents at the time were persuaded of Flynn's innocence. As the Barr Report stated "FBI agents reported to their leadership that Mr. Flynn exhibited a ‘very sure demeanor' and ‘did not give any indicators of deception.' . . . Both of the agents ‘had the impression at the time that Flynn was not lying or did not think he was lying.'"
Yet later that year Flynn was faced with the prospect of a nonstop legal battle against the Mueller team. Under such situations, it is sometimes wiser to cop a plea even if one is not guilty. Katyal and Geltzer discredited the idea that Flynn, a retired general, lacked the resources to work within the legal system. But a legal defense can easily run into the hundreds of thousands, if not millions, of dollars that could exhaust the worth of even a five-star general. There are deferred prosecution agreements whereby powerful individuals and institutions cave before government demands, knowing of the evident perils — financial, reputational, emotional — in fighting the government. For the system to work, prosecutorial discretion, whether within the FBI or any other institution, has to be subject to self-imposed limitations to curb excessive use of investigative powers.
But that self-restraint was nowhere to be found from Comey's chief aides when they sought to downplay any warnings to Flynn that they were conducting a criminal investigation, prompting Bill Priestap, the FBI's counter-intelligence chief, to ask: "What's our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?"
That question is especially important when the very people who were managing the investigation — including Comey, Strzok, and Page — all had strong interests in shutting down further inquiry into their own conduct. And if true, it is even more troublesome that Flynn was prepared to plead guilty to protect his son from the threat of a Mueller investigation.
Under these circumstances, FBI officials during the transition period should have taken extra care to follow standard practices and protocols. Yet the much-maligned Barr Report details with exacting scrutiny the machinations that Comey and company went through to circumvent the standard procedures which require that such interviews be cleared with the Department of Justice, and that notification be made to the President given the obvious implications with Flynn, who by that time had been named the National Security Advisor. Even democratic holdover Deputy Attorney General Sally Yates joined other DOJ officials in thinking that the incoming Trump administration should be notified of the proceedings.
Given the risk of abuse, all high-level political investigations should be conducted only when strictly needed. Yet in this case, the FBI only had tapes of the conversations that Flynn had conducted with all foreign officials after he had been appointed by Donald Trump as National Security Advisor. Moreover, such an investigation should necessarily be directed toward some serious violation of the criminal law.
Yet the only potential violation was under the Logan Act of 1799 that purports to prevent all political negotiations between private citizens and foreign governments. The Act was a legal derelict from its birth, and it strains credibility to believe that it could ever be applied to a "private citizen" who, during the transition period between administrations, made contact with the Russian ambassador, with whom he would have to deal once he took office.
If the rationale for this interview looks exceedingly thin, its motives were highly suspect. Prior to the investigation, a set of internal FBI exchanges revealed that Comey and then-Deputy FBI Director Andrew McCabe pushed to keep the investigation open even after lower-level FBI agents had exonerated Flynn from all charges.
Richard A. Epstein is an American legal scholar best known for his writings and studies on classical liberalism, libertarianism, torts, contracts, and a wide variety of topics in law and economics. He is the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, the Laurence A. Tisch Professor of Law at New York University Law School, and a senior lecturer at the University of Chicago.
Previously:
• 03/11/20 Playing Politics With Coronavirus
• 12/18/19 A Sorry Tale Of Two Investigations
• 12/02/19 Stalking Trump's Tax Returns
• 10/09/19 Life On Planet Thunberg
• 08/14/19 Israeli Lessons For Mass Shootings
• 05/21/19 Left Lurchers: Will the Dems swallow Joe Biden whole?
• 05/15/19 Oh, there's a political crisis, alright. Why not admit it?
• 08/22/18 Dem Frontrunner's Surreptitious Socialism
• 06/20/18: Harassment Gone Haywire: Pleas for gender and racial parity threaten to upend science research
• 03/07/18: The Limits Of Textualism
• 02/20/18: The Trump Growth Machine
• 02/14/18: Steele Dossier Intrigue: The trail leading back to the Democrat establishment looks uncomfortably hot
• 02/12/18: A Comeuppance For Obama's Presidential Center
• 09/27/17: Farewell To Title IX's Kangaroo Courts
• 07/20/15: How HUD could destroy your community
• 07/07/15: Wanted: American exceptionalism in foreign affairs