The 2-1 decision found that the intention of the trial judge, Emmet G. Sullivan, to hold a hearing on the Justice Department’s motion to dismiss the Flynn prosecution amounted to "the judicial usurpation of executive power."
In other words, the judiciary cannot become a stand-in for a government prosecutor.
That’s an important argument about the separation of powers.
But the larger point here is that the prosecution and investigation into Flynn was itself a travesty of justice. When he was fired after three weeks in his post as national security adviser, most of Washington was led to believe that Flynn had betrayed his country.
The implication was that phone calls he had with the Russian ambassador were evidence of collusion, as alleged in a tantalizing but error-ridden opposition research dossier first published by Buzzfeed in January 2017.
Flynn has lived under that cloud ever since.
But the initial story about Flynn was wrong. Under threats to prosecute him and his son for an unrelated violation of the foreign-agents law involving Turkey — Flynn pleaded guilty to one count of providing FBI agents with false information. In January of this year, Flynn moved to vacate that plea. In May, the Justice Department dropped the prosecution altogether as part of a review of his case.
Here it’s worth reviewing some of the materials declassified as part of that review:
These materials show first and foremost that the FBI had all but dropped its counterintelligence investigation into Flynn by the end of 2016. A declassified Jan. 4, 2017, draft memo by the FBI agent managing the case laid out how the probe of Flynn came up empty.
It was kept open after intervention from Peter Strzok, the FBI counterintelligence agent who oversaw the investigations into alleged dealings between the Trump campaign and Russia, as well as into Hillary Clinton’s private email server.
Former FBI Director James Comey told a classified House Intelligence Committee hearing that he decided to keep the investigation open after the FBI discovered that, in the phone calls with the Russian ambassador at the end of 2016, Flynn had urged the Russians not to escalate their response to new sanctions imposed by the outgoing Barack Obama administration.
Comey said the intelligence community wanted to know why Russia had decided not to respond to the sanctions and expulsion of 35 Russian spies. When the bureau discovered the Flynn transcripts, it wanted to keep the investigation into him open.
After Vice President Mike Pence went on national television and claimed Flynn had told him he did not discuss sanctions with the Russians, Comey decided to send two agents to interview him on his fourth day on the job. Comey did this over the objection of the acting attorney general, Sally Yates.
There are problems, though, with Comey’s explanation. The first is that earlier this month, the Trump administration declassified the actual transcript of Flynn’s calls with the Russian ambassador. They do not give any indication that Flynn was a witting or unwitting Russian agent or asset. Instead, the transcript shows an incoming national security adviser carrying out the president-elect’s policy to at least sound out Russia about cooperating in the Mideast.
The sanctions were barely discussed at all.
Looking at the transcript, when the sanctions do come up, the ambassador raises them, and Flynn makes no commitments in regard to the incoming Trump administration’s policy.
Most of his conversation is about the expulsion of Russian spies.
Here, Flynn reiterates that he does not want Russia to escalate tensions in response, which would prompt the new administration to escalate in kind. If Flynn were secretly working with Russia, why would he indirectly threaten its ambassador if the Kremlin chose to overreact?
When the FBI agents finally did interview Flynn, they assessed after the interview that he showed no signs that he was deliberately deceiving them. This is also important because that’s the one count Flynn pleaded guilty to at the end of 2017.
At the very least, his defense counsel should have been provided with this information. Instead, the recorded notes of the FBI interview with Flynn were not given to the public or Flynn’s lawyers until two months ago.
There is an irony in all of this. On Wednesday, the day the appeals court ruled against Judge Sullivan, a U.S. attorney testified before the House about what he believed was profound political interference in the sentencing procedure of the political operative Roger Stone.
Democrats have said that the decision to drop the Flynn prosecution, and the revision of a prosecution memo asking for a more lenient sentence for Stone, are part of the same corruption in Attorney General William Barr’s Justice Department.
But this gets the story wrong. Enough exculpatory information about Flynn has come out as a result of the Justice Department’s review of his case.
No one has presented any evidence that the U.S. attorney who conducted that review was politically biased or acting on the president’s wishes. Meanwhile, the exculpatory documents in the Flynn case are now on the public record.
If Flynn’s treatment were an anomaly, perhaps it could be explained away. It wasn’t.
A federal court vacated two warrants to eavesdrop on another Trump campaign aide, Carter Page, after the Justice Department’s inspector general found profound omissions and factual errors in the warrant applications.
Earlier this month, former Deputy Attorney General Rod Rosenstein acknowledged that his initial 2017 "scope memo" for special counsel Robert Mueller’s investigation was deeply flawed, conceding that when he wrote it, the FBI had no evidence that the Trump campaign had colluded with Russia at all.
None of this detracts from the very real evidence that Trump himself has tried to subvert the independence of the Justice Department. The latest evidence comes from the new memoir by another former national security adviser, John Bolton, who alleges that Trump tried to intervene in two high-profile cases involving a Chinese and Turkish company.
Rather, it’s a warning that when a political opposition refashions itself into a "resistance," it becomes too easy to justify abuses to achieve a greater good. This is what happened at the FBI and Justice Department during the presidential transition and in the first years of the Trump presidency.
Sadly, Democrats today are too busy resisting Trump to see the injustices done to his first national security adviser, and the long-term danger such excesses pose to us all.
Eli Lake is a Bloomberg View columnist. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun, and UPI. Read Eli Lake's Reports — More Here.
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