Eli Lake’s Omissions and Misleading Facts in Defense of Michael Flynn

Eli Lake’s essay in Commentary about the “railroading” of Michael Flynn has been lauded by one commentator as “the best summary of the pro-Flynn argument you’ll ever read,” and deemed “a comprehensive breakdown on Flynn’s side of the case.” But those descriptions actually prove a different point than their authors intend. The only way Lake is able to make a persuasive defense of Flynn is by relying on serious omissions and misrepresentations.

Background

In December 2017, the former national security adviser pleaded guilty to making false statements to agents of the FBI. Flynn was charged by Special Counsel Robert Mueller as part of his investigation into links between Russia and the Trump campaign. Now, President Donald Trump’s Justice Department has filed a motion to dismiss the charge.

Flynn’s lies occurred in January 2017, when FBI agents questioned him about the content of his conversations with Russian Ambassador Sergey Kislyak in late December 2016. According to the statement of offense, Flynn lied by falsely denying that he had discussed with Kislyak sanctions that had been imposed by the Obama Administration in retaliation for interfering with the 2016 election. Flynn admitted that he had also lied when he falsely denied communications he had about a United Nations vote on Israeli settlements.

The FBI interview and Justice Department’s interest in the matter were prompted by two events, Flynn’s calls with Kislyak and subsequent public statements by Vice President Mike Pence that contradicted the content of those calls.

And while not part of his count of conviction, Flynn also admitted in the statement of offense to lying in March 2017 in his official lobbying disclosure forms about acting as an agent of the government of Turkey. During his hearings before Judge Sullivan, Flynn admitted that he had not been entrapped and reiterated that he knew it was a crime to lie to the FBI.

In January 2020, after Mueller had closed up shop without finding a criminal conspiracy between the Trump campaign and Russia, Flynn filed a motion to withdraw his guilty plea, with a new lawyer now contending that Flynn did not lie after all and accusing the government of engaging in misconduct. Instead of responding to the motion, Timothy Shea, the District of Columbia’s acting U.S. Attorney and former close aide to Attorney General William Barr, filed a motion to dismiss the charges against Flynn.

Lake’s essay explains at length how he believes Flynn has been treated unfairly. But he omits important facts and includes misleading ones that skew the appropriate conclusion. Not only did the FBI and Department of Justice treat Flynn fairly, but if they had instead ignored his serious misconduct, they would have been in violation of their duty to the American people.

FBI’s counterintelligence mission

The most significant omission in Lake’s essay is his argument that the FBI lacked predication for interviewing Flynn. His argument completely ignores the FBI’s counterintelligence mission and baselessly attacks the legitimacy of investigating Flynn’s potential criminal conduct.

While not legally required, predication is an FBI internal policy that requires a factual basis to indicate the existence of criminal conduct or a national security threat before agents may start an investigation. This policy reflects the FBI’s dual mission to investigate federal crimes and to lead counterintelligence activities. Under its counterintelligence mission, the FBI is responsible for detecting and countering actions of foreign intelligence services to gather information about the United States that adversely affects our national interests.

The Flynn investigation’s August 2016 opening documentation, known as an Electronic Communication, or “EC,” stated that there was an articulable factual basis that Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.” The EC further noted that “Flynn was an advisor to the Trump campaign,” “had various ties to state-affiliated entities of Russia,” and “traveled to Russia in December 2015.” It specified 18 U.S.C. § 951, Agent of Foreign Governments, as a possible criminal violation related to Flynn’s activities with the Russian government. According to the widely respected DOJ inspector general’s report into the Russia probe, the Flynn investigation was properly predicated as a full investigation.

Indeed, the amount of text Lake spends on the Logan Act is a bizarre distraction from the core of the FBI’s counter-intelligence approach to Flynn. When asked about the Logan Act in a closed session of the House Intelligence Committee, former Acting FBI Director Andy McCabe testified, “I haven’t done a legal analysis on any possible criminal implications of his contact with his conversation with Ambassador Kislyak, but of course that was not the subject of our investigation. Our investigation was to try to determine the substance and the impact of General Flynn’s interactions and relationships with Russian Government officials.”

Lake argues that because the FBI had found no derogatory information by December 2016, and planned to close the investigation, the January 2017 interview of Flynn lacked adequate predication. But in the meantime, Flynn’s suspicious calls with Russia and his lies to Pence had taken place. While no new predication was needed to conduct an interview of Flynn, these two events most certainly provided it.

The calls alone were sufficient to raise a red flag as a counterintelligence threat, a position Lake calls “beyond absurd.” While the fact that the calls occurred may not have raised an eyebrow, their content certainly did. Sanctions are meant to punish and deter a foreign government from engaging in bad behavior. In December 2016, the United States had decided, as a matter of foreign policy, to retaliate against Russia for interfering in the election. By discussing the sanctions with Russia as a private citizen, Flynn undermined this position, whether wittingly or unwittingly. If, as reported, Flynn asked Russia not to escalate the situation, it would cause the FBI to ask why. Were other promises made in other conversations in exchange for not escalating? Had other favors already been performed as quid pro quo for refraining from escalating? Even if asking Russia not to retaliate was in the best interest of the United States, that was not Flynn’s call to make while the Obama Administration was still in office. The alarm bells sounded beyond the FBI. Others who expressed concern about the content of the calls included James Clapper, the Director of National Intelligence; Susan Rice, the National Security Adviser; and Sally Yates, the Acting Attorney General, according to their closed-door testimony before the House Intelligence Committee.

Lake’s attempt to chalk up the concerns to media bias is amateurish. He wrote, “the initial spin in the press that Flynn’s conversation with Kislyak had undermined the outgoing administration’s policy was misleading.” The senior national security officials at the time were alarmed by Flynn’s call, and that is also part of the reason that the senior incoming Trump administration officials were quick to deny that Flynn had discussed U.S. policies on the call.

It is beyond obvious that the content of the Flynn-Kislyak calls provided sufficient predication for the interview of Flynn.

The threat of compromise

But even more concerning than the calls, Flynn had apparently lied about their content to incoming senior White House officials. As Lake notes, on January 15, Pence stated on television on Face the Nation that Flynn had not discussed sanctions with Russia. The FBI and DOJ knew that this statement was false because they had the recordings of the calls. Lies are alarming in the intelligence world because they create a dangerous compromise situation. When a government official has lied and a hostile foreign adversary like Russia knows the truth, blackmail is a very real possibility. Grounds for blackmail are among the areas of inquiry on a background investigation for a security clearance. And when the government official has a highly sensitive position like Flynn’s, the consequences of blackmail to U.S. national security could be devastating. As stated in the report of Special Counsel Robert Mueller, “The public statements of incoming Administration officials denying that Flynn and Kislyak had discussed sanctions alarmed senior DOJ officials, who were aware that the statements were not true.” Because of this threat to the national security, the investigation remained open and the interview was conducted. Not only was this action appropriate. It was required. For the FBI to fail to pursue additional investigative steps under these circumstances would have been to shirk its duty to detect and counter threats to our national interests.

Lake argues that it was possible that Flynn had not lied to Pence, but that Pence had lied on television, which itself is not a crime. Perhaps it was naïve for the FBI to take Pence at his word, but even if it had occurred to the FBI to speculate that Pence had lied, it still had a duty to learn the truth.

Permissible criminal predicates

Second, while a national security threat alone is sufficient to predicate a counterintelligence investigation, the Flynn case also had a criminal predication. Lake’s essay uses the Logan Act as a strawman to suggest that the Flynn interview had no criminal predication. The Logan Act makes it a crime for a private citizen to negotiate with a foreign government. Lake argues that the Logan Act is a “220-year-old relic” that has not been used since the Civil War. But just because a statute is old does not render it invalid. Most murder statutes are old, and continue to be used quite regularly. In fact, the State Department has used the Logan Act throughout history to guide restrictions on travel and passports.

When the FBI correctly perceived a serious threat to the national security was afoot, it was right to use any statute on the books as predication for investigation, even one that might prove difficult to prosecute. When I handled national security cases as a federal prosecutor, this strategy was referred to within DOJ as the “Al Capone theory of prosecution.” Just as income tax evasion was used to prosecute Capone in the absence of other provable crimes, so too should any statute on the books be used to neutralize a threat to national security. Even if it appeared that it would be challenging to obtain a conviction under the Logan Act, it provided a permissible predicate to investigate whether a crime had occurred. In fact, McCabe testified before the House Intelligence Committee that whether a statute has been used recently is not a factor in deciding whether to investigate. To suggest the FBI investigation of Flynn is illegitimate on this basis, is to take a sledge hammer to ordinary and widespread government practices in the national security arena.

Two different foreign agent statutes

The Logan Act was not the only, or even primary, criminal basis for the investigation. As the opening EC stated, the goal of the investigation was to determine whether there was a threat to national security or a violation of “18 U.S.C Section 951 et seq, or other related statutes.” This statute should not be confused with the Foreign Agents Registration Act (“FARA”), 22 U.S.C. Section 611. While FARA is a disclosure statute for lobbyists, 18 U.S.C. Section 951 makes it a a crime to act as an agent under the direction or control of a foreign government, and it is used for spies. As a national security prosecutor during the Bush Administration, I handled three such cases involving agents of the government of Iraq in the regime of Saddam Hussein. It was this statute, and not FARA, that was used as a predicate for the Flynn investigation.

That Lake would focus so much of his attention on the Logan Act and not this statute tarnishes his argument. Lake builds much of his case on the notion that the Logan Act (which arose as an issue only following the late December calls) was the sole predicate for the FBI’s investigation. But, in fact, it was 18 U.S.C. Section 951 that predicated the investigation from the start back in August 2016.

Here’s where Lake further misrepresents the record. He asks, “Why this reliance on the Logan Act in the first place?” “It seems likely that Comey was looking for a rationale to continue the FBI’s pursuit of Flynn because the original rationale—the question of whether Flynn was a Russian asset—had come up empty,” Lake answers. But that’s not how it works or worked. The new information regarding the Kislyak calls was reason enough to keep open the original investigation under Section 951 and interview Flynn.

The crimes Mueller used

In focusing solely on the Logan Act, Lake also overlooks other potential violations of  “related statutes” to the 951 charge described in the opening EC. In his two indictments against Russian intelligence officials, individuals and entities, Mueller charged conspiracy to defraud the United States in violation of 18 U.S.C. Section 371. That statute is used to charge defendants with conspiring to impair, obstruct or impede the lawful functions of a government agency.

Here, by diminishing the import of the sanctions with Kislyak, Flynn was interfering with the work of the Treasury Department’s Office of Foreign Assets Control, which administers sanctions. As a result, this statute could also have served as a permissible criminal predicate for the Flynn interview. A truly comprehensive assessment of Flynn’s case would acknowledge the relevance of such related criminal statutes, which figured prominently in the special counsel’s work.

Minimizing Flynn’s conduct

Beyond predication, Lake also minimizes Flynn’s misconduct. Lake argues that Flynn had the “misfortune” of returning a phone call to Kislyak, and suggests that Flynn’s lies were really the product of a faulty memory. This characterization is at odds with the facts. The Mueller Report (pp 170-171) includes the detailed recollections of Flynn from his interview in November 2017 about his calls with Kislyak, including his contemporaneous phone conversations with members of the Trump Transition Team about what he should say to the Russian ambassador. He spoke for 20 minutes with Transition Team member Michael Ledeen, and another 20 minutes with K.T. McFarland, who in turn, was talking with Transition Team members Tom Bossert, Steve Bannon and Reince Priebus. McFarland said she thought that someone may have also mentioned Flynn’s calls with Kislyak to Trump himself. After Flynn spoke to Kislyak, he spoke to McFarland again to report the substance of his call with Kislyak. If Flynn recalled these details during his November 2017 interview with Mueller, it is hard to believe he did not recall them during the FBI interview 10 months earlier, and one month after the events occurred. Indeed, Flynn apparently began lying about the content of the call to the media and other incoming Trump administration officials right after David Ignatius published his account of the call on January 12.

Lake also flatly misrepresents the content of Flynn’s FBI interview. Compare a couple of examples of how Lake describes Flynn’s false statements and what Flynn actually said:

“The FBI’s official record of that interview, known as a 302, also discredits Comey’s after-the-fact spin. … In his interview, Mr. Flynn offered either equivocal (‘I don’t know’) or indirect responses, or claimed to not remember the matter in question.”

– Eli Lake

“The interviewing agents asked Flynn if he made any request of Kislyak to vote in a particular way or take any action. Flynn stated he did not.”

– Flynn’s 302 interview

“The interviewing agents asked Flynn if he made any comment to Kislyak about voting in a certain manner, or slowing down the vote, or if Kislyak described any Russian response to a request by Flynn. Flynn answered, ‘No.’”

– Flynn’s 302 interview

Lake further argues that Flynn’s lies did not impede or otherwise have a material impact on the FBI’s investigation. Judge Sullivan rejected this argument months ago, writing that false statements are material if they are “capable of influencing” an agency in its actions or decisions. He reasoned that Flynn’s lies were material because they “could impact the FBI’s decision to act and follow leads,” or could create “red flags” that lead to further inquiry. Sullivan’s analysis of the law and its application to the case was entirely conventional.

Here, Flynn’s lies were most certainly capable of influencing the FBI’s investigation. If Flynn had been truthful with interviewing agents, it would have led to further inquiry. Agents likely would have asked Flynn why he made those statements to the ambassador, and whether anyone else was involved. The truth would have shown the involvement of the Trump Transition Team, and would have helped the FBI to discern whether they were being truthful with investigators. Truthful information would have provided leads to help the FBI assess whether these facts posed a counterintelligence threat. Lies may have indicated a consciousness of guilt for Flynn’s own conduct or that of others. If, in fact, this was all innocuous behavior, then truthful answers could have saved Flynn and the FBI a great deal of time and effort.

The FBI did not set up Flynn

Lake also takes issue with the FBI’s tactics, noting that agents did not show Flynn transcripts from his call when they interviewed him, failed to notify him that he was a target of investigation and did not warn him that it was a crime to lie to the FBI. None of these steps are legally required, and are within the tactical discretion of the agents. FBI agents often warn a subject that it is a crime to lie to them, not because it is legally required, but to make it easier for the prosecutor to prove at trial the element of willfulness, which requires a showing that the person knew that it was a crime to lie. As a retired lieutenant general in the Army, Flynn was familiar with the Uniform Code of Military Justice, which makes it a crime to lie to military investigators. The only risk the agents took in not warning Flynn was that a jury would be unable to find that Flynn had this knowledge. Where they were acting in their counterintelligence capacity to protect the national security, they likely were not concerned about whether a jury would be able to make this finding. Even if  they had considered it, they likely would have concluded that a jury would believe that Flynn knew it was illegal to lie to the FBI without evidence of the warning. Regardless of their strategy reasons, and there was nothing improper about their decision not to warn Flynn. He was a retired senior military officer who knew better.

Lake points to two recently disclosed documents as “shocking,” a closing memo from FBI agent Joe Pientka and notes from supervisory agent Bill Priestap. The Pientka memo closing the case in December 2016 reflected a lead from a confidential human sources regarding links to Russia that the FBI could not confirm and a lack of derogatory information found on databases. These facts are meaningless. The absence of evidence is not the same as innocence. Databases require input of known information. If information is yet unknown, it cannot appear in a database.  For example, it is possible that at this time of the closing memo, the FBI was unaware that Flynn had joined Kislyak and senior adviser Jared Kushner in early December for a meeting, at which they discussed setting up a back channel for communication with Russia. While this information would have been a basis for further investigation, the FBI cannot act on information of which it is unaware. Even if no evidence had been obtained as of December 2016, Flynn’s subsequent calls with Kislyak and apparent lies to Pence were sufficient to revive the case.

Likewise, the Priestap notes are no smoking gun.  They appear to contain the musings of a supervisor, not any facts that negate Flynn’s crime. The notes stated: “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” Recent press reports revealed that Priestap had recently told the Justice Department that the FBI was not trying to set Flynn up and that his notes should not be taken to suggest otherwise. There is nothing wrong with brainstorming strategy before an important interview. In fact, agents would be remiss not to do so. Differences of opinion as to strategy are common, and a give and take helps agents explore their best options. A goal to “get him to lie” does not suggest that this was a perjury trap either, defined as an interview conducted for the sole purpose of catching someone in a lie with no legitimate investigative purpose. Locking a subject into a story as an investigation unfolds is a common tactic so that someone cannot change his story later. Even getting Flynn removed from office would be an appropriate goal if he were a threat to national security. Lake also conspicuously omits any reference to the final point in Priestap’s written notes. “If we’re seen as playing games, WH will be furious. Protect our institution by not playing games.” Priestap wrote. These notes are far from the smoking gun Lake purports them to be. And even if they reflect motives that were somehow improper, they do not in any way negate Flynn’s guilt.

Lake suggests that the only reason Flynn pleaded guilty was to avoid financial ruin, charges against his son and even more serious charges against himself for his work on behalf of the government of Turkey (though Lake neglects to mention the government of Turkey itself, and makes it appear Flynn’s work was for a private Dutch company). While Flynn may have felt this pressure to cooperate, he went into a courtroom and admitted to a judge to lying to the FBI. He repeated his confession at a later hearing. Flynn’s situation is no different from many other defendants who choose to plead guilty to lesser charges to avoid more serious consequences. As long as probable cause exists to support the crime of conviction, there is nothing impermissible about bargaining away more serious crimes, and it happens every day in America.

Other Miscellaneous Falsehoods

The Steele Dossier makes an obligatory appearance in Lake’s analysis to smear the FBI investigation. The dossier containing information about ties to Russia has been discredited as a basis for obtaining a warrant from the Foreign Intelligence Surveillance Court for Trump campaign adviser Carter Page, but, importantly, the dossier did not serve as the basis for the Flynn investigation.

Lake concedes that there was no FISA warrant for surveillance targeting Flynn, but states that FBI Director James Comey authorized “unmasking” Flynn’s names in the calls with Kislyak. It has been reported (and confirmed) that Flynn’s identity was never masked. Even if Flynn’s identity had been masked in transcripts of the calls, agents had an obligation to determine who was speaking to Kislyak and undermining U.S. foreign policy.

The FBI’s conduct was not an assault on our government

Lake concludes that the FBI’s conduct involved a “spurious prosecution” to leverage “political opponents” to confess to lies they did not tell, amounting to “an assault on the peaceful transition of power.”

The FBI made mistakes in the Russia investigation, to be sure. Errors and intentional falsehoods in the Page FISA applications led to an audit that uncovered mistakes in every FISA application examined. As a result, FISA has appropriately come under scrutiny to ensure compliance with its rigorous standards. Alleged misconduct by McCabe and FBI agent Peter Strzok has led to their terminations. A government official may have leaked to the Washington Post the contents of Flynn’s calls with Kislyak in early January 2017, perhaps a violation of law or possibly an authorized disclosure to “tickle the wire,” a permissible tactic that is often used in investigations to see how suspects will react.

Regardless of the possible misconduct of others, though, Flynn committed a serious crime and should be held accountable for it. Far from being “mere” process crimes, false statements prosecutions go to the very heart of the criminal justice system. They are important because they deter subjects from lying, helping investigators to find the truth and to do so without expending additional resources to chase down every falsehood. There was nothing spurious about prosecuting the national security adviser for committing this serious crime. Flynn knew better, and we should be able to expect better from people entrusted with such power.

Nor is there any evidence that FBI agents were “leveraging” “political opponents.” The FBI is a non-partisan organization. Its agents enforce the law, and they have no favored political party or candidate. Agents investigated Hillary Clinton before the election in 2016. Twice. And did so publicly. In contrast, they investigated the Trump campaign silently until after the election. Those decisions were dictated by circumstances, not political preferences.

The truth is that Flynn was not railroaded. But his defense is a trainwreck.

Images: New America Foundation via Wikimedia Commons; Chip Somodevilla/Getty 

 

About the Author(s)

Barbara McQuade

Professor from Practice at the University of Michigan Law School, Former United States Attorney for the Eastern District of Michigan (2010-2017), Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee in the Obama Administration, Member of the Editorial Board of Just Security. Follow her on Twitter (@BarbMcQuade).