General Flynn’s first Prosecution

In July 2016, the FBI opened a counterintelligence investigation called “Crossfire Hurricane” to look into allegations of collusion between members of the Trump campaign and Russian agents to interfere in the 2016 presidential election.  A subpart investigation called “Crossfire Razor” sought to determine whether Gen. Flynn had improper contacts with Russian officials.  

General Flynn was named to be national security advisor to President Trump, and had responsibilities for the transition from Obama to Trump on related matters. During the transition Flynn talked by telephone with the Russian Ambassador.  Flynn’s reasons were regular and appropriate to Flynn’s responsibilities in the Obama-Trump transition team.  In January 2017 the FBI team heading Crossfire Razor decided to close the investigation.  Peter Strzok (high-ranking FBI agent removed from Mueller probe team) overrode the closure decision, apparently to maintain a basis for conducting an interview with Flynn. Strzok and Joe Pientka interviewed Flynn in the White House on January 24, 2017.  That interview is notorious for the following reasons:  FBI counterintelligence director, Bill Priestap mused in writing about it before approving it:  “What’s our goal?  Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”  Deputy FBI Director Andrew McCabe advised Strzok and Pientka to try to soft-pedal a Miranda Warning so as to gain advantage in results obtained (i.e., suggesting entrapment?).  In fact, no mention of a Miranda Warning occurred.  Strzok and Pientka initially reported, even though some of Flynn’s responses to their questions about his conversation with Kislyak were inaccurate, they believed this was more likely a memory lapse than a deliberate intent to deceive.  The original notes taken by Strzok and Pientka and the Form 302 to which they would have been typed has never been produced. What was produced was a separate version which had been substantially edited by Strzok, FBI lawyer Lisa Page, and perhaps others.  It was distributed to Flynn’s lawyers.  

From January 24 through November 30, Flynn is said to have sold his house and paid $5 million in legal fees.  He agreed to a plea bargain which produced:  Flynn’s signed “Statement of the Offense” in which he swore under penalty of perjury that he made materially false statements and omissions during the January 24, 2017 meeting; he would give “substantial assistance” to special counsel Robert Mueller’s Russia investigation; and that he made materially false statements and omissions in forms submitted under the Foreign Agents Registration Act.  His plea bargain offered by the FBI resulted in the FBI’s intention to recommend no prison time and removal of the threat to indict Flynn’s son and business associate on an out-of-scope matter.  The next day Flynn pleaded guilty before Judge Sullivan.  

In January 2020 Flynn’s new lawyers filed in court a 12-page sworn statement in which Flynn repudiates his prior admissions, describes pressure applied to him by DOJ prosecutors, and alleged conflicts of interest by his former lawyers. Separately, the Justice Department had a special investigation by the U.S. Attorney for the Eastern District of Missouri, Jeff Jefferson, to reassess the legitimacy of the prosecution, including particularly whether any of Flynn’s alleged misstatements were material to any legitimate, ongoing investigation at the time.  This investigation has resulted in production of documents to shed light on FBI machinations behind the scenes.  Flynn originally said he committed no crimes; then said he lied to FBI agents; but now says he was right the first time.  DOJ and FBI officials first took the position Flynn committed no crimes; then, decided the FBI said he had; and now, the DOJ is back to saying he did not. Would that be good enough for a jury trial to end in conviction?   

I believe the fact the FBI threatened Flynn his son would be indicted and imprisoned if guilty of a felony was out-of-scope of Crossfire Razor, and then resorted to the plea bargain suspect.  FBI prosecutors were never seeking justice, but rather a high profile “victory”.  The Supreme Court has dismissed much more notorious offenses by killers and drug dealers because the police failed to give defendants their civil rights protections.  The DOJ decision to dismiss prosecution is the correct resolution.                                                            June 15, 2020