Flynn’s Reported Immunity Request
And exactly what would you do if you were in General Michael Flynn’s shoes?
It is not just that the long knives are out for him. The arena in which they bay for Flynn’s blood is no longer one of truth and justice but of social justice. No distinctions between partisan disagreement and crime, between intelligence and law-enforcement, between responsibly discreet investigation and political theater.
Put Flynn aside. The country in which we live has become so infected by partisan rage that federal courts are not embarrassed to invalidate a perfectly lawful executive order (restricting alien travel) on the sole ground that it was issued by Donald Trump. Had the same order, word-for-word, been issued by Barack Obama, it would have been swiftly upheld, if challenged at all. Politically “progressive” judges, however, have adopted an irrebuttable “Trump is evil” presumption. The new president’s allegedly guilty mind outweighs his every action, no matter how solidly rooted in law.
The object of the Left’s game is to nullify Trump’s presidency, whether by impeachment or withering rebuke. The best way to get there is to demonize his associates, such that they are criminals and their crimes are his crimes. On that list, it doesn’t get higher than Mike Flynn.
Long before riding the front of the Trump Train, Flynn made himself the bête noire of the intelligence community, accusing it of politicizing intelligence analyses and concealing the ineffectiveness of Obama’s approach to jihadist terror – claims which, to the great embarrassment of Obama’s spy chiefs, have been corroborated by intelligence agency operatives. Like Trump, moreover, Flynn – brash, unpolished, and erratic – has a knack for making enemies on all sides, such that Washington is now full of two kinds of people: those out to get Flynn and those who whisper that he had it coming.
Even that does not begin to describe the jeopardy Flynn had to be sensing when his lawyer reportedly offered his cooperation with investigations into Russian meddling in the U.S. presidential campaign in exchange for some form of immunity from prosecution. But it does provide a sense of the poisonous atmosphere in which, as night follows day, government officials leaked the offer to the media, spinning it as an admission of guilt – although, of what offense, no one seems able to say.
Imagine that. During the months of the Hillary Clinton email scandal, we learned that the major subjects of the investigation – involving felony mishandling of classified information and destruction of tens of thousands of government records – retained counsel and sought various forms of immunity in exchange for their cooperation. Mind you, this was under circumstances in which they knew the Justice Department was in the tank for them – so in the tank that Cheryl Mills and Heather Samuelson were permitted to appear as lawyers representing Hillary Clinton, the main subject with respect to whom they had a five-alarm conflict of interest.
No matter. When the conduct of Democrats was at issue, the media told us not to read too much into immunity requests. Standard fare to get a lawyer and seek immunity – doesn’t mean you’ve done anything wrong. Even when subjects of the Clinton investigation claimed their Fifth Amendment privilege against self-incrimination rather than testify before Congress; even when reports surfaced of bizarre Justice Department agreements that evidence from the subjects’ computers would be destroyed rather than preserved; even when publication of the subjects’ FBI interviews detailed patently misleading statements – the media-Democrat complex steadfastly maintained there was nothing to see here.
But Mike Flynn, against whom there is no evidence of criminal wrongdoing? He is apparently a cross between Robert Hanssen and Al Capone.
Flynn lost his job as Trump’s national security advisor because he provided to Vice President Pence (among other Trump officials) an incomplete version of his conversations with Russian ambassador Sergey Kislyak during the transition. The withheld information involved sanctions imposed by Obama, and consequent Russian hopes that Trump would undo them.
It may be that Flynn, belatedly realizing that any mention of sanctions was politically explosive, was “economical” with the facts when briefing Pence. But it could instead be that there was a garble on both sides – i.e., that Flynn took Pence to be asking whether he’d made any promises to Kislyak, but Pence took Flynn’s “no” to mean the subject never came up. Whatever the explanation, Pence was mortified when his public defense of Flynn turned out to be wrong. Flynn was cashiered in short order.
We can be confident, however, that Flynn gave Kislyak no satisfaction – not that doing so would have been a crime, as opposed to a galactic political lapse. We can be confident because the FBI was monitoring Kislyak’s phone, and – although national-security eavesdropping under the Foreign Intelligence Surveillance Act (FISA) is classified – Obama officials leaked the intelligence to the New York Times, which actually is a crime. The newspaper thus reported:
Obama advisers heard separately from the F.B.I. about Mr. Flynn’s conversation with Mr. Kislyak, whose calls were routinely monitored by American intelligence agencies that track Russian diplomats. The Obama advisers grew suspicious that perhaps there had been a secret deal between the incoming team and Moscow, which could violate the rarely enforced, two-century-old Logan Act barring private citizens from negotiating with foreign powers in disputes with the United States.
The Obama officials asked the F.B.I. 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.
If you are Flynn and his lawyer, and you’ve been reading such reporting, what would you make of it?
The government is not supposed to use its FISA surveillance authority to make criminal cases, yet it seems to have been more than willing to ignore that impediment to try to make a case on Flynn. As I’ve previously detailed, the Times report elaborates that the FBI did not just record Flynn’s communications and consult “Obama advisers” on the possibility of charging Flynn – a White House intrusion into law-enforcement that the media would have turned into Watergate if done by a Republican administration. The FBI is also said to have “grilled” Flynn about his communications with Kislyak. Given that the FBI recorded the communications and obviously doesn’t need Flynn to tell them what was said, any competent lawyer would have to wonder whether they “grilled” Flynn in the hope that he would lie about what was said, opening him up to a charge of false statements to investigators – a felony.
Moreover, if the reporting was to be believed, the Obama administration even considered indicting Flynn under the Logan Act, under which no one has been prosecuted in over two centuries. (Remember, this is the same Justice Department and FBI that claimed the mountain of evidence that Hillary Clinton had violated the Espionage Act should be ignored because the relevant crime is rarely charged.) In addition, former acting Attorney General Sally Yates (an Obama holdover since fired by Trump for insubordination) floated a lunatic theory about Flynn being vulnerable to blackmail: viz., because the Russians knew Flynn had not given Pence the full details of his conversation with Kislyak, they could threaten Flynn with exposure and thus coerce him into doing Russia’s bidding – that would be General Mike Flynn, a 33-year combat veteran awarded the Bronze Star four times for heroism, who last year wrote a book (Field of Fight, co-authored with historian and PJ Media columnist Michael Ledeen) that describes Russia as an implacable enemy of the United States.
As it happens, Flynn has retained Robert Kelner, a very skilled attorney. Still, there is not a competent lawyer in America who, absent some form of immunity for his client, would have let Flynn submit to interviews by components of the United States government investigating Russian meddling in the election. And were there any doubt about that, it should be eliminated by the fact that private negotiations between Kelner and counsel for congressional committees were immediately leaked in a manner designed to make Flynn look bad.
When a person is asked to cooperate with the government – particularly regarding a matter the FBI, in a departure from its protocols, has publicly acknowledged it is investigating – there are two considerations. The first is his own understanding of his conduct, and whether it exposes him to criminal liability. The second, and in many ways the more important consideration, is his perception of how the government views him. Even a person certain that he has done nothing wrong, that he is pure as the driven snow, would be a fool not to seek immunity if it appeared that the government might be predisposed against him.
General Flynn’s lawyer appears to have asked for some form of immunity. It is standard fare, it is not an admission of guilt, and in the current climate, it was the only sensible thing to do.