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The ‘Bombshell’ That Wasn’t? Lawyers Say the FBI’s Tactics in Michael Flynn Case Were ‘Routine’

Former national security advisor and retired Lt. Gen. Michael Flynn, who pleaded guilty to lying to the FBI and then hired new lawyers who moved to withdraw his plea, has had his “bombshell” moment, according to some. According to others, there was not much to see here other than routine FBI tactics.

On Wednesday night, the documents that Fox News host Maria Bartiromo’s sources promised would “exonerate” Flynn dropped. When they did, conservatives said that the documents were proof that the FBI entrapped and even “set up” Flynn. Bartiromo said the documents represented a “confirmed setup.”

https://twitter.com/MariaBartiromo/status/1255642955068723202

Rep. Devin Nunes (R-Calif.) said the same.

And there is a belief that there is more to come in Flynn’s favor.

The documents released Wednesday suggest the FBI — or at least the person who wrote the handwritten note most people are zeroing in on — was debating approaching Flynn with a several-pronged attack during a Jan. 24, 2017 interview: (1) to seek a prosecution on the merits of his contacts with Russian Ambassador Sergey Kislyak; (2) to catch him in a lie; and/or (3) to get him fired. Flynn had spoken with Kislyak after the 2016 election.

“What’s our goal? Truth/Admission or get him to lie, so we can prosecute him or get him fired?” the handwritten notes say in their own words.

Elsewhere, the notes say, “[W]e have a case on Flynn + Russians.”

The notes further suggest the FBI was nervous about political repercussions from newly-elected President Trump. “If we’re seen as playing games, WH will be furious,” the notes state. “Protect our institution by not playing games.”

The FBI, controversially, even floated targeting Flynn for violating the Logan Act. The law first hit the books in 1799 but was updated in 1948 and 1994. Here’s what the law criminalizes, in its own words:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

The law does not criminalize private actions “for redress of any injury” by a foreign government.

George Washington University law professor Jonathan Turley, a criminal defense lawyer who famously made the case against President Donald Trump’s impeachment during the House phase of that inquiry, was quoted in the Fox News story on Wednesday. He tweeted that the FBI’s “reference to the Logan Act” was “particularly chilling.”

Law&Crime reached out to Turley for comment to ask him about the broader implications of the Flynn story and whether it was the bombshell that many said it was. He said he could not speak to people’s expectations about the Flynn revelations, but he did say that he thought the story was “quite significant.”

“The suggested use of a flagrantly unconstitutional law, the Logan Act, to bag Flynn was particularly troubling. No one has ever been prosecuted under the Act for a simple reason: it is widely viewed as unconstitutional and unenforceable,” he said. “The email from Lisa Page on 18 U.S.C. 1001 is equally troubling where she suggests to Strzok that they set up Flynn for a charge under that statute since ‘it would be an easy way to just casually slip that in.'”

Turley repeated his belief that the way the FBI treated Flynn was “chilling.”

“Finally, the handwritten notes reveal high-level uncertainty as to the real purpose behind the interview in whether they want ‘to prosecute him or get him fired.’ That is a dangerous uncertainty and becomes quite chilling when you consider that Flynn committed no crime in speaking with the Russians about sanctions as the incoming National Security Adviser,” Turley said. “The clear impression is that that the Justice Department sought to bag a Top Trump official in the legal version of a canned hunt.”

“This new information magnifies long-standing doubts over the Flynn case. Mueller decided to pressure him into a plea despite the fact that the investigators indicated that they did not believe that he intentionally lied about this one aspect of the conversation with the Russian ambassador,” Turley continued. “In the meantime, various FBI figures lied and acted in arguably criminal or unethical ways … but all escaped without a charge. It is a record as a whole truly shocks the conscience. While rare, it is still possible for the district court to right this wrong since Flynn is not sentenced.”

On Thursday morning, Turley called for the dismissal of Flynn’s case.

But many other lawyers told Law&Crime that there was no such proof of a “set up.” On the contrary, these tactics by the FBI, especially in 18 U.S. Code § 1001 (false statements) cases, are quite common. They also invariably said that this will more than likely not affect the outcome of the Flynn case.

Political investigations and impeachment lawyer Ross Garber, who has handled many cases of this kind, said that even people who haven’t committed crimes should be “incredibly wary” of “any” interview with law enforcement.

“There may be more information that emerges, but standing alone, the email exchange is unlikely to change anything,” Garber said. I’ve handled a lot of 1001 cases, and in many instances prosecutors and agents are well aware of, and even seek to maximize the use of, the leverage they get when a person being interviewed says something that’s not entirely accurate.”

“It’s a reason why anyone, even someone who has committed no crime, should be incredibly wary of any interview with law enforcement officials and consult with qualified counsel in advance,” he added.

Mark Zaid, the national security lawyer who was on the Ukraine whistleblower’s legal team, said that the FBI notes showed routine FBI interview tactics.

“The so-called ‘bombshell’ that is being touted as exonerating former General Flynn appears to be nothing more than selective documents disclosed by an aggressive defense counsel and then promoted by a supportive reporter,” Zaid said. “The FBI notes reveal consideration of routine law enforcement interview tactics and by no means undercut General Flynn’s prior admissions of lying to the FBI–a felony–and accepting full responsibility for his actions.”

National security lawyer Bradley P. Moss, a partner at Zaid’s firm, said that the FBI’s tactics were “largely consistent” with what’s been going on for the last five decades.

“These tactics, while maybe unseemly to the public, are largely consistent with the very type of deceptive interrogation techniques law enforcement has been permitted to use for at least 50 years,” he said. “This isn’t a legal bombshell that is likely to save Flynn in court: it’s simply more political fodder to justify the imminent pardon from the president.”

Renato Mariotti, a CNN legal analyst and a former federal prosecutor, said that the FBI “often interviews subjects when they know that the person will likely lie.”

“Sometimes they go into the interview expecting that they may charge the person for lying to them. That’s not unusual at all,” he said. “If critics want to criticize what the FBI did to Flynn, they need to change the law more generally, because he was treated like many others the FBI has interviewed over the years.”

Many other lawyers commented that the FBI internal notes and emails simply didn’t live up to the hype.

Law&Crime founder Dan Abrams noted that it was almost lost upon people that Flynn still lied about his contact with the Russian ambassador and pleaded guilty.

Gene Rossi is an attorney and former federal prosecutor with decades of experience who regularly appears on the Law&Crime Network. He said he saw the Flynn story as a “big yawn.”

“Putting aside the obvious Barr politics behind the breathless release of the so-called ‘smoking gun’ memos in the General Flynn matter, the objective case law shows that guilty pleas are rarely vacated. The General signed a fulsome statement of facts—and the judge accepted his admission—at the guilty plea hearing,” Rossi said. “Moreover, the Supreme Court has expressly approved the tactic of withholding evidence from—and even lying to—a criminal who has committed a crime during an investigative interview. In sum, a big yawn!”

When asked if the documents were a possible setting of the stage for a pardon by President Trump, Rossi replied, “Bingo.”

The president has been laser-focused on the story.

Trump’s eldest son said the FBI acted in a “treasonous” manner and that those involved should be locked up.

[Image via Alex Wroblewski/Getty Images]

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