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The man who holds the record for shortest tenure as national security adviser is back in the news. He pleaded guilty in 2018 to lying to the FBI about his contacts with the Russian ambassador during the presidential transition in late 2016 and early 2017. Then, in January of this year, he vacated that plea. Now the Justice Department has released documents that, says his new defense counsel, show that Flynn was set up by the FBI.
The new revelations are interesting. An email exchange between former FBI lawyer Lisa Page and former agent Peter Sztrok show a discussion about how agents interviewing Flynn should remind him that it is a crime to lie to the FBI. Eventually Page recommends that Sztrok "slip it in" at some point in the conversation.
Other documents show the agents were unsure of the purpose of the interview, whether to catch the retired general in a lie or get him to admit to violating the 221-year-old Logan Act, which prohibits private citizens from conducting foreign policy on behalf of the U.S. and has never resulted in a conviction. They show agents mulling whether the objective of the interview was to catch Flynn in a lie and possibly create the conditions under which he would be fired.
Handwritten notes show that at least one person in the bureau, probably general counsel James Baker, was worried that the White House would become furious with the bureau if it learned that Flynn was being interviewed in a criminal probe under false pretexts. Former FBI director James Comey acknowledged in 2018 that arranged to set up the interview with Flynn without going through White House counsel. This decision was "something I probably wouldn't have done or maybe gotten away with," he later said, "in a more organized administration."
The FBI's defenders have argued that none of this excuses Flynn's lies to FBI agents. One lie, according to the plea, was telling agents he did not ask Russia's ambassador "to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia." Another was that he did not request to delay or reject a UN Security Council resolution supported by the U.S. during the transition to censure Israeli settlements.
In court documents filed in January, Flynn now says he did not remember the details of his conversation at the time. What's more, Comey himself has testified that the agents who interviewed Flynn in January 2017 did not believe he was deliberately misleading them. Flynn now says that he was unaware of this information when he agreed to the plea deal.
Now cast your mind back to late 2017, when that deal was signed. Many in Washington then believed that President Donald Trump's campaign had conspired with Russia, giving Flynn's communications with the Russian ambassador a sinister cast. A year and half later, Mueller's investigation ended without bringing any charges against any Americans in connection with Russia's interference. Now, Flynn's communications with the ambassador seem more benign: He was not undermining U.S. policy so much as asking Russia to avoid escalation.
There remains, of course, the issue of Flynn's violation of foreign lobbying laws, which he admitted to but for which he was not charged. In August 2016, Flynn's consulting firm entered a contract with a Dutch firm owned by a Turkish businessman on a project "for the principal benefit of the Republic of Turkey." That contract expired in November 2016.
Flynn's firm did register initially its contract through the Lobbying Disclosure Act, or LDA. Many lobbyists use the LDA as a way of avoiding the more onerous reporting requirements under the Foreign Agents Registration Act, or FARA.
More to the point, the FBI until 2017 barely enforced FARA violations. A 2016 Justice Department Inspector General report found only seven times when the U.S. brought criminal charges against FARA violators between 1965 and 2015. Most violators were either fined and/or asked to file retroactively as a foreign agent, which Flynn did in March 2017.
Ignorance of the law is no excuse, as they say, but at the same time justice demands that the law be applied fairly and consistently. Flynn was being squeezed for crimes that are rarely, if ever, enforced. He relented only under financial pressure and a promise that his son, who worked with him in his consulting group, would not be prosecuted.
Some members of the #Resistance have noted that the tactics exposed in these latest court filings are common in criminal investigations. Why should Flynn get better treatment than a suspected terrorist or drug dealer? After all, he led chants of "Lock her up" at the 2016 Republican National Convention.
A more honest question is whether Trump's opposition would tolerate these tactics if the shoe were on the other foot. If the FBI had plotted to catch National Security Adviser Susan Rice in a lie in order to create pressure for President Barack Obama to fire her, would Democrats have reveled in her misfortune as they have reveled in Flynn's?
This is not the only case of FBI misbehavior to come to light recently. Last month the Justice Department's inspector general made clear the bureau had routinely withheld exculpatory information from the federal surveillance court. Deception and intimidation do not suddenly become less objectionable just because the subject of an investigation is a former member of the Trump administration.
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Eli Lake is a Bloomberg View columnist who writes about politics and foreign affairs. He was previously the senior national security correspondent for the Daily Beast. Lake also covered national security and intelligence for the Washington Times, the New York Sun and UPI, and was a contributing editor at the New Republic.