This is Part Two of a two-part series on why I believe Michael Flynn is not vindicated by the latest round of Shocking Revelations that has Trump fans up in arms. Part One, dealing with the allegation of a secret deal not to prosecute Flynn’s son, is here.
So here is the central document that Trump fans think is proof that James Comey and Andrew McCabe were looking to get Flynn fired:
Unsealed FBI notes reveal the intent of the FBI’s 1/24/17 interview of Flynn:
“What is our goal? Truth/Admission or to get him to lie, so we can prosecute [Flynn] or get him fired?”
FBI Notes confirm it was all a pretext. pic.twitter.com/Y4IDyE4YZm
— Techno Fog (@Techno_Fog) April 29, 2020
I don’t think those notes show that at all. It seems to be generally accepted that the notes were written by then-FBI counterintelligence chief William Priestap. The notes also say:
- I don’t see how getting someone to admit their wrongdoing is going easy on him
- If we get him to admit to breaking the Logan Act, give this to DOJ and have them decide
- Or, if he initially lies, then we present him [redacted] and he admits it, document for DOJ, and let them decide how to address it
- If we’re seen as playing games, WH [White House] will be furious
- Protect our institution by not playing games
The key argument of Flynn partisans appear to be that these notes indicate a desire on the part of the FBI 1) to get Flynn fired, which is none of the FBI’s business, and 2) to violate an alleged longstanding FBI procedure of telling a target what the evidence is against him before asking the target about his wrongdoing. Related to the second point is an argument that Flynn’s answers could not be “material” if the agents already knew the truth.
I’ll take these in turn — at some length, as you will see. The TL;DR is: 1) the notes do not indicate a desire to get Flynn fired; 2) I strongly dispute that the FBI always tells people the evidence against them before asking them about it — and the proof of the pudding is that they regularly charge people with lying to them about things they already knew. And the courts have repeatedly upheld such lies as “material” even though the agents knew the truth and their investigations were impeded not one whit by the lies.
1. The Notes Do Not Show a Desire to Get Flynn Fired
It is amazing and rather distressing that the document embedded above is so readily interpreted as a desire to get Flynn fired.
To me, looking at the notes through the eyes of someone who is not a partisan looking to exonerate Flynn on any pretext, there is an obvious and reasonable interpretation of that document that is 100% at odds with the interpretation being offered by the pro-Flynn crowd.
Let me illustrate by example. I’ll use my friend Larry O’Connor in the example, because he asked me about this on Twitter. Let’s say Larry has an idea to change the format of his highly-rated drive time radio show in Washington, D.C., from a show about politics and pop culture to a show that is devoted exclusively to playing showtunes. One of his producers has been thinking about the idea in preparation for a producers’ meeting, and decides he doesn’t like it at all. The producer brings handwritten notes with him to the meeting, and one of the lines reads: “What is our goal here? To get the best ratings possible for Larry’s show, or to spread the joy of musicals to D.C. and fatten the bank account of Stephen Sondheim?”
If Larry’s bosses go for the format change, does that prove their goal was to fatten the bank account of Stephen Sondheim? Not at all! Sure, as a lifelong aficionado of musicals, Larry would be perfectly content to see Stephen Sondheim’s bank account fattened even further than it has been already, from royalties from productions ranging from Sweeney Todd to Into the Woods. But that would only be a happy side effect of Larry’s proposal. Larry’s real goal is to spread the joy of musicals throughout Washington, D.C., because Larry is convinced this will drive away partisanship and bring Democrats and Republicans together.
His producer made the comment rhetorically, you see, knowing that not one person in the room believed that one of the rhetorically invoked “goals” (fattening Sondheim’s bank account) was indeed the true goal of the action Larry proposed. The producer was presenting two possible actions, and arguing against the one he disfavored by characterizing one of the goals of that potential actions as a goal that is improper. And the obvious retort is: That’s not the goal. We have other goals here. (About which more below.)
Is it possible Larry has a secret side deal with the 90-year-old god of musical theater? Sure, I guess it’s possible, theoretically. If you could prove such a side deal with independent evidence, would these producer notes be useful evidence in your case? They might well be, depending on other evidence of what transpired at the meeting. But without any other evidence, do these notes by themselves establish Larry has a side deal with Sondheim? Nope! All they show is that a member of the meeting used a rhetorical question to make an argument.
If you got lost in the hypothetical, I’ll bring it back to Flynn. To me, it’s obvious that Priestap is asking a rhetorical question here. He is contrasting two possible courses of action: a) telling Flynn what they have on him, or b) hiding it from him. He is arguing against the latter action, and invoking what he clearly thinks is an obviously improper goal (although as I will argue below I’m not sure it’s actually improper!) as a rhetorical move to show that the proposed course of action that he disagrees with is wrong. But the fact that Comey and McCabe choose the latter course of action is not an admission that getting Flynn fired is their goal.
OK, I hear the Flynn partisans asking: so what were their goals? I think the narrow answer was investigating a possible violation of the Logan Act — but the broader goal (and this is critical) was to use that violation, or any lie Flynn might tell, as an effort to gain leverage in a larger collusion investigation. [UPDATE 5-24-20: It is now clear to me that their actual goal was to pursue a counterintelligence investigation.]
Now: to me, the narrow justification (investigating a violation of the Logan Act) is not particularly compelling — but not to be entirely sneezed at. (I assume by now you know what the Logan Act is: a statute that makes it a crime to negotiate with certain foreign governments without authorization). But I think the bigger issue was the need to investigate what at the time seemed like potential collusion with the Russian government.
BUT FIRST MY ASIDE ON WHY THE LOGAN ACT SHOULD NOT BE ENTIRELY SNEEZED AT: It is quite true that the Logan Act has not been enforced since the mid-1850s and has never resulted in a conviction. Nobody would consider it a valid basis for prosecuting anyone unless Hillary Clinton had allegedly violated it — in which case Trump fans would chant in mindless unison: “Lock her up!” (I am not being entirely facetious here. I remember Trump fans, and myself, being contemptuous of James Comey’s letting Hillary off the hook despite having violated the clear terms of a federal criminal law regarding the handling of classified information. Comey’s explanation was that prosecutors do not typically enforce the law as written without certain additional factual requirements not met in her case. We didn’t like that explanation, did we?) The law is the law, unless the law is used to target your political allies, in which case the law is custom only. It is this kind of fair-weather friendship of the rule of law that disgusts me about Republicans these days. END ASIDE
The argument I am about to make here won’t appeal to Trump fans who have decided that “Russia Russia Russia” was a Giant Hoax perpetrated by the Deep State and Do-Nothing Democrats and that the Mueller Report conclusively established that there was No Collusion, No Collusion At All. To the more reasonable of you, who have read the Mueller report and seen the unusually high number of contacts between corrupt and dishonest Trump campaign officials and Russia; who have considered Trump’s cheerful acceptance of Russia’s help in the campaign and his odd love for a murderous dictator; who have thought about the fact that Trump’s campaign manager, son, and son-in-law met with someone purporting to represent the Kremlin who supposedly had dirt on Trump’s opponent (and was in fact there to push the repeal of the Magnitsky Act, Putin’s greatest foreign policy goal) … in light of all that and more, reasonable people like you believe that there was a need to investigate the possibility that Trump had colluded with the Russian government. So now, here was a guy (Flynn) who (the FBI knew) had spoken to the Russian ambassador about sanctions, in direct violation of a (little used) law but also in a direct attempt to undermine the sanctions that the then-current President of the United States (Obama) had ordered as retaliation for election interference. This played right into the question of possible collusion between the Trump campaign.
And with all this going on, I think it’s very possible that FBI leadership didn’t want to just tell Flynn that they had caught him on a wiretap. (As an aside: Remember how Trump superfans once told us confidently that the wiretaps had actually been of Flynn himself? And how they laughed at people like me who said the wiretaps were obviously of Russian officials? Good times.) Because, you see, they wanted to find out whether Flynn would lie about it. And if he would lie about such a thing, why would he lie? And the not-unreasonable conclusion, which I still believe to be true, is that Trump told Flynn to do this. Which, at the time, seemed like possible payback to the Russians for their help in the campaign. (I still think it looks like that, even without direct evidence of collusion.)
A lie by Flynn would matter, in other words.
And (because this post is filled with asides) along those lines: You know who once pretended that it matter that Flynn was lying about this? One Donald Trump!
I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!
— Donald J. Trump (@realDonaldTrump) December 2, 2017
Now, was this sincere? Well of course it wasn’t. Donald Trump doesn’t care about lying per see. Donald Trump lies six times before breakfast and then lies throughout the rest of the day. He tells about one lie per every 5-10 breaths he takes, and has done so his entire adult life. The only reason he cares about lying (or anything) is to the extent it affects him. Trump now says he might have Flynn back in his administration. So wait: did Flynn not lie to Pence all of a sudden? Or is that all of a sudden not a problem? Does Trump think Flynn lied to Pence but told the truth to the FBI? Do you, Dear Reader? Do you really?
Anyway, putting Trump’s view aside, of course it matters whether Flynn was going to lie about this. And the thing Flynn’s defenders seem to forget is: Flynn had already lied about it to Pence. Aaron Blake lays out the chronology in the Washington Post:
And here’s the important point: The official had very good reason to believe Flynn would lie about this … because he already had.
On Jan. 12, 2017 — 12 days before the Flynn interview — The Washington Post’s David Ignatius first reported the contact between Flynn and Kislyak and raised the prospect of a Logan Act violation. The next day, Jan. 13, incoming White House press secretary Sean Spicer denied Flynn had discussed sanctions with Kislyak, saying they had just discussed a meeting between Trump and Russian President Vladimir Putin. “That was it, plain and simple,” Spicer said.
Two days later, on Jan. 15, Vice President-elect Mike Pence was even more explicit in denying Flynn and Kislyak had discussed sanctions. “They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia,” Pence said.
After Trump was inaugurated, Spicer in a Jan. 23 White House briefing again denied it — this time citing Flynn’s own denial to him. Spicer said he spoke to Flynn “again last night” and that Flynn had told him the call focused on four subjects, none of which was sanctions.
The Bombshell Notes cited above are dated January 24, 2017 — after Flynn had already told all these lies to Pence and others in the administration, and the lies had been splashed across the pages of our nation’s newspapers. And we are told that FBI counterintelligence should have no concerns about this?!
Ah, but the Flynn defenders say: Priestap himself says FBI agents “regularly show subjects evidence with the goal of getting them to admit their wrongdoing.” To which I say: ORLY? (I also say a lot more. In fact, the whole next section fleshes out my ORLY reaction.)
2. The FBI Does Not Always Show Targets All the Evidence Against Them Before Asking Them About Their Wrongdoing
In discussing this issue, I think it’s important to note an ambiguity here. Is Priestap saying that it is normal FBI procedure to confront a target with the evidence against them before they deny wrongdoing or after they deny wrongdoing, but in the same interview? It’s not entirely clear, is it?
The distinction matters. If it’s normal FBI procedure to show the target the evidence after they deny wrongdoing, but in the same interview, then any provable lie the target told before the disclosure of the evidence is still a crime. If the target denies wrongdoing, and it can be proved that he lied at the time he denied it, then it doesn’t “undo” that lie for the target later to say, after being shown the evidence against him: “oh, right, now that you mention it, I did engage in that wrongdoing.” If the target can convincingly allege that seeing the evidence had refreshed their recollection, and that they had not lied before the evidence was disclosed, then a conviction is more difficult. But if you can prove the initial statement was a lie, the crime is done, and any walkbacks do not undo the crime. (Think Andy McCabe telling the IG investigators four days later that, come to think of it, he did remember leaking some info. That later statement makes his initial lie (if it was a lie) harder to prove — especially because he was not confronted with contrary evidence in the interim — but it does not undo the lie or deprive prosecutors of the ability, in theory, to charge him.) (McCabe’s situation also reminds us that sometimes people lie about things they had the right to do, if the legal thing they did looks bad. So: even if you think Flynn’s conversation with Kislyak should have been (or was) legal, he might have lied for other reasons.)
In other words, if it is normal FBI procedure to confront a target with the evidence against them after they deny wrongdoing, but in the same interview, then adherence to this procedure would not prevent Flynn from committing the crime of lying to the FBI, and violating the procedure would not be a “but for” cause of his lies to the FBI.
If, by contrast, Priestap is saying that it is normal FBI procedure to confront a target with the evidence against them before they deny wrongdoing, then adherence to that procedure might have prevented Flynn from committing a crime entirely.
Since people are claiming that Flynn is innocent, I assume it is this latter scenario (confronting a target with the evidence against them before they deny wrongdoing) that they are saying is the normal FBI procedure, per Priestap. Because if it is the former (confronting a target with the evidence against them only after they deny wrongdoing) that does nothing to prevent Flynn from committing a crime.
I submit that while advising people about the evidence after their illegal denial may be a usual FBI practice, doing so before asking them about their wrongdoing is not the invariable FBI policy.
Let me give one caveat right off the bat: I am not personally an expert on FBI procedures. I have dealt with FBI agents off and on during the course of my job, and also dealt with some who “worked” on my SWATting case. I have been almost uniformly impressed with the FBI agents I have encountered professionally, and — how shall I put this — I was somewhat less impressed with the agents who worked on the SWATting. No real surprise there. Every organization has hard workers and slugs; smart people and dumb people; honest agents and dishonest ones. I think the FBI is better than most on all counts. But am I personally an expert on how agents approach their interview subjects? No. That said, I am able to make some observations based on what I read in the public record.
First of all, I find it interesting that Priestap (if he is the one who wrote the notes) says that he “agreed yesterday that we shouldn’t show Flynn [redacted] if he didn’t admit.” Here, [redacted] almost certainly refers to transcripts of Flynn’s wiretapped conversations with the Russian ambassador. Then he says he thought about it again and changed his mind.
First, the language “if he didn’t admit” strongly suggests that Priestap is not talking about confronting Flynn with the transcripts before asking him if the sanctions conversation happened. He is clearly talking about whether to confront Flynn “if he didn’t admit” — in other words, after Flynn denied the conversation.
So my first question is, if it is the invariable practice of the FBI to show such evidence to people before speaking with them, why did Priestap agree to violate that procedure to begin with?
But more critically, if the FBI always gives people the evidence in advance before asking them what they did, then why are there so many cases in which people lie to the FBI about things the FBI already knew about?
This question is related to the “materiality” point raised above: if Flynn lied to the FBI, we’re told, the lie could not have been “material” because the agents already knew about it. Well, that is a defense that has been raised in many a case over the years. It is an argument advanced by no less a distinguished partisan hack than Alan Dershowitz of Harvard Law School, in connection with the Flynn case. Dershowitz has said: “When questioning any suspect, officials should not ask questions whose answers they already know, for the sole purpose of seeing whether the suspect will lie. If they do ask such questions, untruthful answers should not be deemed ‘material’ to the investigation, because the FBI already knew the truth.”
The problem is that this is not the law, as former federal prosecutor Ken White explained at length in a post entitled Alan Dershowitz Is Lying To You:
So: Professor Dershowitz’ proposition is that a lie is not material under Section 1001 if the government actor lied to already knows the truth. Every court to consider this argument — and there have been many — has flatly rejected it. See United States v. Mercedes, 401 F. App’x 619, 620 (2d Cir. 2010) (rejecting argument that false statement about citizenship could not have been material because interviewing agent had already “ruled out the possibility of relying on the statement”); United States v. Moore, 708 F.3d 639, 649 (5th Cir. 2013) (“A statement can be material even if the agency already knew the answers given by the defendant and even if the receiving agent knows they are false.”); United States v. LeMaster, 54 F.3d 1224, 1230–31 (6th Cir. 1995) [(]”It is irrelevant what the agent who heard the statement knew at the time the statement was made. A false statement can be material even if the agent to whom it is made knows that it is false.”[)] (“The fact that the FBI already knew that LeMaster received $6,000 in cash from Spurrier did not affect the materiality of his false statement to the FBI. A false statement 1231 can be material even if the agent to whom it is made knows that it is false.”); United States v. Whitaker, 848 F.2d 914, 916 (8th Cir. 1988) (“A false statement 1231 can be material even if the agent to whom it is made knows that it is false.”); United States v. Goldfine, 538 F.2d 815, 820 (9th Cir. 1976) (“Darrell Goldfine contends, however, that since the Compliance Investigators knew the answer and were not misled by the falsity, the statement was not materially false. . . . [T]he statement here was clearly material.”); United States v. Henderson, 893 F.3d 1338, 1351 (11th Cir. 2018) (“Indeed, a false statement can be material even if the decision maker actually knew or should have known that the statement was false.”)
I am not aware of any cases construing Section 1001 that go the other way. Nor is there any credible indication that the United States Supreme Court would go the other way and decide that a false statement to the government does not violate Section 1001 if the government already knows that it is false.
How in the world did so many defendants decide to lie when the rule is that the FBI shows you the evidence before they ask you what happened? The answer is, of course, that this is not what the FBI does.
Re Flynn: Yes, federal law enforcement routinely interviews people hoping they will confess (and get prosecuted) or lie (and get prosecuted). Yes, they plan that in advance of the interview. That's how it works. That's how it has worked for a very long time.
— MilestoneAchievingHat (@Popehat) April 30, 2020
Because this is already a long post, let me take just one example from the giant string cite in Ken’s post: United States v. LeMaster, 54 F.3d 1224, 1230–31 (6th Cir. 1995). You can read the decision at this link. LeMaster was the Chairman of the Business Organization(s) and Profession(s) (BOP) Committee of the Kentucky State Senate, which was considering a horse racing bill. A harness horse racing industry lobbyist named Spurrier, working undercover for the FBI, gave LeMaster $6000 in cash on numerous occasions while wearing a wire. Five days after the final payment, FBI agents interviewed LeMaster. Did they say: “Mr. LeMaster, we want to first tell you that we have tape recordings of you accepting cash from this lobbyist. Now that you understand that, did you?” Why, no, they did not. Instead, they asked him: “did anyone give you any cash while you were on that trip?” After he denied it, we see this: “Later during the interview the agents advised LeMaster that they had tape recordings of him accepting cash from Spurrier in Florida and Kentucky.”
“Later during the interview.” As in “not before they first asked him about wrongdoing.”
I submit to you, based on the “if he didn’t admit” notation in Priestap’s notes, the representations of Ken White on Twitter, the huge body of case law dealing with cases in which targets lie about things the FBI already knows the truth about, and the representative example I have given you, that if the FBI has a practice of showing people the evidence against them, that practice is at most to show them the evidence after they have lied about the wrongdoing and thereby committed a federal crime.
For Priestap and Andrew McCabe to debate whether to give Flynn the chance to explain himself after Flynn lied and broke the law proves nothing.
I’m going to wrap this up, but I want anyone who is still skeptical of the Flynn prosecution to read two documents before asking me any questions about it. Those documents are 1) a memorandum opinion written by Hon. Emmet G. Sullivan, United States District Judge and the judge in Flynn’s case, denying numerous motions brought by Flynn; and 2) a transcript of proceedings before Judge Sullivan held on December 18, 2018.
In the latter document, Flynn says he knew lying to the feds was a crime when he did it. He says he does not want to challenge the circumstances of his interview. He says he has no concerns about potential Brady material, and he reaffirms that he is indeed guilty. His lawyer denies that Flynn was entrapped and affirms that Flynn’s rights were not violated by his not having had an attorney present for the FBI interview. In the former document the judge addresses and rejects all kinds of claims that are still being made by Flynn’s lawyers.
If you want to yammer about the “original 302” or how the 302 was edited or how the interviewing agents thought Flynn was telling the truth or how there is missing exculpatory evidence or how the interview was pretextual or how Flynn had to reason to lie or how they didn’t read him his Miranda rights or warn him that lying would be a crime or anything along those lines, I am going to want you to certify to me that you have first read and digested the contents of those documents and that the answer to your question is not contained therein. If the answer to your question is actually contained therein, I will simply respond to your question by reminding you to read those documents. If you think the answer to your question is not contained therein, the burden will then be on you to cite the relevant passage, quote it, and explain how it does not address your concerns. In other words, if you’re going to ask a question of me, after I have done all this work and given you both of these links, you’re going to have to do some work of your own to justify why I should do any more. My default is going to be that I have given you over 4,300 words on the topic today, without pay, and I don’t feel like expending any more energy — especially if the answer is out there and you are just too lazy to look it up even though I gave you the links.
I hope this helps shed some light on my thoughts on this matter. Honest and informed discussion is welcome.