The Russia Hoax

by Gregg Jarrett

  A congressional source also tells us that Former FBI Director James Comey told the House Intelligence Committee on March 2 that his agents had concluded that Mr. Flynn hadn’t lied but had forgotten what had been discussed.18

  Days later, Andrew McCarthy of National Review and a former federal prosecutor reported the same thing, with the following observation:

  Did (Mueller’s prosecutors) decide they knew better than the experienced investigators who were in the room observing Flynn’s demeanor as he answered their questions?

  I wonder whether Mueller’s team informed Flynn and his counsel, prior to Flynn’s guilty plea to lying to the FBI, that the interviewing agents believed he had not lied to the FBI.19

  Byron York of the Washington Examiner, who also confirmed Comey’s secret testimony, put it in context:

  To some Republicans, it appears the Justice Department used a never-enforced law and a convoluted theory as a pretext to question Flynn—and then, when FBI questioners came away believing Flynn had not lied to them, forged ahead with a false-statements prosecution anyway.20

  How is it possible that the FBI and the DOJ could determine that Flynn told the truth but allow the special counsel to charge him with lying? More importantly, did they hide critical information from Flynn’s lawyers that would have absolved their client of any criminal charge?*

  The third reason Flynn should never have been charged is directly related to the second reason. The potential testimony of the FBI agents constituted what is known as “exculpatory evidence,” which is any evidence the government possesses that is favorable to a defendant that would tend to exonerate him of guilt.

  In the well-known case of Brady v. Maryland and its progeny, the U.S. Supreme Court held that prosecutors have a duty to disclose such exculpatory evidence even if they are not requested by the defense to do so.21 It is the job, after all, of prosecutors to seek justice, not merely obtain convictions or guilty pleas under duress. Defendants are entitled to the constitutional protection of “due process” under the Fourteenth Amendment and to be treated fairly. Failing to turn over evidence helpful to a defendant is a severe violation of that treasured right, meriting a complete dismissal of the charge.

  The FBI had to have known that the conclusions of the interviewing agents would be exculpatory. There is no indication that they ever disclosed it to the accused or his counsel.

  The U.S. District Court Judge who presided over and accepted Flynn’s guilty plea on December 1, 2017, was Rudolph Contreras. Mysteriously, he was recused from the case days later. No reason was stated; nor was any conflict of interest cited. It was kept hushed. More than three months later, reporting by the Federalist, as well as Sara A. Carter, revealed the likely reason for the recusal. Investigators for the House Oversight Committee, digging through documents being scrupulously guarded by the Justice Department, discovered newly redacted text messages in which FBI counterintelligence chief Peter Strzok bragged about his close relationship to Contreras to his paramour, FBI attorney Lisa Page.22 Strzok had played a major role in the Flynn prosecution since he was one of two FBI agents who interviewed the then-NSA director and determined that he had told the truth.

  Why didn’t Contreras recuse himself on his own, as ethics rules require? The answer may be found in the text messages themselves. In one exchange dated July 25, 2016, Page exclaims, “Rudy is on the FISC! Did you know that? Just appointed two months ago.” Strzok replied, “I did. We talked about it before and after. I need to get together with him.”23 This was at a time when Strzok and the FBI were believed to have been compiling their unverified “dossier” to bring to a FISA court judge to gain a warrant to spy on Carter Page.

  In another audacious text, Strzok states, “I’m in charge of espionage for the FBI. Any espionage FISA comes before him . . .” As the Federalist reported, “The pair even schemed about how to set up a cocktail or dinner party just so Contreras, Strzok, and Page could speak without arousing suspicions that they were colluding.” Whether the dinner party ever took place is unclear. What is clear is that congressional investigators were convinced these texts were intentionally concealed from Congress and never turned over in an unredacted form.24 The texts may also be evidence of attempted undue influence of a judge, which would constitute obstruction of justice and, potentially, other crimes.

  The Flynn cased was handed off to another judge, U.S. District Court Judge Emmet G. Sullivan. He may have suspected something was amiss. Federal prosecutors and law enforcement are notorious for withholding exculpatory evidence. Sullivan had experience in the matter, having once presided over the corruption prosecution of former Alaska senator Ted Stevens, who was convicted. When it was later learned that prosecutors had been withholding evidence and creating false testimony, Judge Sullivan excoriated them and held them in contempt.25 The indictment against Stevens was then set aside, vacating the conviction.26

  After Flynn’s guilty plea, Judge Sullivan ordered Mueller’s team of prosecutors to produce “any information which is favorable to defendant and material either to defendant’s guilt or punishment. This government responsibility includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.”27 Judge Sullivan pointed out that prosecutors had a responsibility to hand over to the defense any information that would have been helpful to him before he decided to enter his guilty plea.28

  A fourth reason the charge against Flynn should not have been brought is that the FBI had no legal basis even to question him because his conversations with Kislyak were not a crime. It is the job of the FBI to investigate crimes or potential crimes. They must have a reasonable suspicion of criminal activity. Yet, as previously explained, the Trump Transition Team’s interactions with the Russian ambassador were perfectly normal. Where was the crime? Nowhere. What reasonable suspicion existed? None.

  Dialogues with foreign governments occur during every transition. Some are quite lengthy and involved, as the new administration prepares itself for the foreign policy challenges that lay ahead. It would be profoundly unusual if they did not happen. In no way did Flynn’s discourse with Kislyak violate the Logan Act, which prohibits private citizens from interfering in diplomatic disputes between the U.S. and foreign governments.29

  For more than two hundred years since the passage of the Act in 1799, no one has ever been prosecuted under it. The reason is quite simple—the law is regarded by most legal scholars as contrary to the First Amendment and, therefore, unconstitutional. Since no person has ever been convicted, no court has ever ruled directly on its constitutionality.

  However, courts have commented on the Act from time to time. In 1964, the U.S. District Court for the Southern District of New York stated that it was likely unconstitutional because it is vague, overly broad, and ambiguous.30 Numerous scholarly publications have argued that the Act violates the right to free speech under the First Amendment. So, its legal efficacy is doubtful.

  Beyond that, the newly named national security adviser did nothing that would fall under the Act. He was serving as a representative of the incoming government, not as a private citizen as the Act requires. Moreover, Flynn did not interfere in a diplomatic dispute under the meaning of the Logan Act. To the contrary, he sought ways to de-escalate tensions over U.S. sanctions by asking the Russian government to limit its response “in a reciprocal manner.” He helped to prevent an international confrontation that could have intensified into something far more serious. By doing this, Flynn was acting for the benefit of the U.S. government and in a manner not inconsistent with the Obama administration’s wishes and policy. He could hardly be criticized for it, much less prosecuted.

  In the Statement of Offense against Flynn, the special counsel also cited calls made by Flynn to Russia and several other countries requesting that foreign officials vote against or delay a United Nations Security Council Resolution.31 However, this, too, would not fall under the Logan Act. The proposed resolution condemned Israel’s settlements as a
“flagrant violation” of international law. This surely came as no surprise to the Russians or the Obama administration, since it conformed with the same public statement President-elect Trump issued the very day Flynn contacted the Russians about the pending vote.

  Trump tweeted: The resolution being considered at the United Nations Security Council regarding Israel should be vetoed.32

  There was nothing secretive or illegal about Flynn’s communications with Moscow. And in the end, it did not matter. Russia ignored Flynn’s request and voted in favor of the resolution which passed with fourteen votes.33 The U.S., under the direction of the Obama administration, took no position on the resolution. By abstaining, it neither supported the resolution nor opposed it. And since the measure imposed no sanctions, it was nothing more than an idle diplomatic statement.

  The FBI’s motives in interviewing Flynn can be traced to Sally Yates, an Obama holdover who was acting attorney general until Jeff Sessions could be confirmed by the Senate and sworn into office. Yates would later be fired by Trump when she refused to have the Justice Department defend his initial executive order on immigration, almost certainly because she disagreed with the policy. Her antipathy toward the new president made her a darling of the anti-Trumpers, even though her act of defiance was nothing more than classic insubordination. The president, in his decision to terminate her, was well within his Article II powers under the Constitution to “take care that the laws be faithfully executed.”34

  However, while she was still acting attorney general, it was Yates who directed Comey’s agents to interview Flynn.35 As America’s top law enforcement official, she must have known the Logan Act had no application, and she had, therefore, no legal justification for instructing the Bureau to even speak with Flynn. She ordered the agents to do it anyway, perhaps hoping to inveigle him in a way that would damage the new president.

  If Yates had been acting in good faith, she would have notified the White House counsel that the FBI wanted to speak to Flynn about a matter that involved a potential crime. She did not do so, and neither did the FBI director Comey.36 Had the White House been made aware of this critical information, it would either have rejected the interview outright for lack of legal cause or otherwise ensured that Flynn was represented by a lawyer during the interview. He was not. It was a seemingly unprincipled maneuver by Yates. But she was far from done.

  Undeterred by the agents who reportedly concluded that Flynn had not lied, Yates nonetheless decided to visit the White House two days after the interview. According to her testimony before the Senate Judiciary Committee, she warned White House Counsel Don McGahn that Flynn could be vulnerable to blackmail by the Russians because he had been deceptive about his discussions with Kislyak.37 This, of course, was a nonsensical scenario because FBI agents had determined that Flynn was telling the truth. In what way could the Russians use the truth as blackmail? Yates left out this tiny, but important, fact. Here is her account which stands as a textbook case of implying guilt by omission:

  We also told the White House Counsel that General Flynn had been interviewed by the FBI on February 24. Mr. McGahn asked me how he (Flynn) did and I declined to give him an answer to that.38

  Why didn’t Yates tell McGahn the truth—that FBI agents felt Flynn had given honest answers? Because that would have ruined the canard she was spinning that Moscow would somehow try to blackmail Flynn over a purported lie that was no lie at all. It is reasonable to conclude that Yates, who had been appointed by Obama, wanted the new president to fire Flynn, thereby wreaking havoc at the outset of his administration and generating a public scandal that would damage Trump. She seemed determined to make it happen, as her testimony revealed:

  Finally, we told them (White House Counsel’s office) that we were giving them all of this information so that they could take action, the action that they deemed appropriate. I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action, and that was the first meeting.39

  Yates did not, however, give the White House the full information. She seemed to have cherry-picked what could be misconstrued as fatal to Flynn, while concealing a fact that would have likely exonerated the adviser. It was a clever, but unethical, deception. If Yates had been forthcoming, she would have admitted that the Logan Act was not violated and that FBI agents had believed that Flynn did not lie to them. She should have then apologized for commandeering the FBI for a legally invalid purpose and promptly resigned. Of course, she did not do this.

  J. Christian Adams, a former Justice Department attorney, told Fox News he had no doubt about Yates’s motivation:

  She saw it as her mission to sabotage the incoming administration. We know she did it on the travel ban. Now we know she did it to screw over General Flynn.40

  The damage wrought by Yates accomplished the desired goal. Shortly after her visit to the White House, Flynn resigned as National Security Adviser amid mounting news accounts of impropriety.

  Illicit or corrupt actions in the treatment of Flynn were compounded by Comey and the deception he begat in numerous public statements during his book tour. In television interviews, he repeatedly insisted that he never told Congress that FBI agents who interviewed Flynn did not believe he had intentionally lied.41 Yet, days later the House Intelligence Committee made public a newly unredacted report that the FBI and DOJ had tried to block. It included quotes from a transcript of Comey’s testimony:

  Director Comey testified to the Committee that “the agents . . . discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”42

  According to the Senate Judiciary Committee in a letter dated May 11, 2018, Comey specifically told their committee the same thing—that agents who interviewed Flynn “saw nothing that led them to believe (he was) lying.”43 Was Comey lying when he testified before both congressional committees? Or was he lying during televised interviews to the American public in order to profit from his book?

  The disinformation, false accusations, and wrongful prosecution of Flynn invite another significant legal question. Who leaked Flynn’s conversations to the press? Whoever did so committed a crime.

  The Leakers Committed a Crime, Not Flynn

  Someone in the federal government had access to the content of the Flynn-Kislyak conversations secretly recorded by American intelligence agencies. The tapes and their transcripts were classified documents. Despite this, someone appears to have conveyed them to Washington Post reporter David Ignatius, a highly regarded journalist, who published the information in an initial column on January 12, 2017:

  According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on December 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking.44

  Several other stories followed in the next few weeks, including on the very day Yates visited the White House to talk about Flynn. The original and subsequent leaks were felonies by those who provided the information.

  18 U.S.C. 798 states as follows:

  Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes . . . any classified information concerning the communication intelligence activities of the United States or any foreign government . . . shall be fined under this title or imprisoned not more than ten years, or both.45

  It matters not that the government leakers intended to reveal a deception by Flynn, assuming there was one (and the facts indicate otherwise). Any underlying motivation to serve the public good by disclosing a lie or misrepresentation is of no legal consequence under the statute.

  Ignatius described the person who first told him of Flynn’s r
ecorded discussions with Kislyak as “a senior U.S. government official.” That person committed the crime stated above. Was it Yates? Was it James Clapper, the director of National Intelligence? Both had access to the recorded conversations. But it was Yates who used the contents to engineer Flynn’s firing at roughly the same time information was leaked to Ignatius and others. In their sworn testimony before Congress, both Yates and Clapper stated that they had no idea who leaked the information.46

  The Washington Post published numerous articles as Yates and the FBI were targeting Flynn. In most of the stories, the reporters added new information that could have only come from government sources who had access to the classified recordings and other materials. In one such story, the Post revealed that the Flynn-Kislyak conversations were corroborated by “nine current and former officials, who were in senior positions at multiple agencies at the time of the calls, spoke on condition of anonymity to discuss intelligence matters.”47

  The reference to “multiple agencies” is especially disturbing. It indicates pervasive criminality across many of the sixteen agencies that make up the U.S. intelligence community, all of whom could have gained access to the secret recordings of Flynn and leaked them to the press. The government has immense resources at its disposal to aggressively investigate these classified leaks. Individuals who illegally disclosed the information should be prosecuted as the law demands. This is particularly true since the evidence suggests that the cavalcade of media reports implying criminality on the part of Flynn likely contributed to his forced departure as national security adviser.

  Sessions Mistakenly Recused Himself from Russian Investigation

  Jeff Sessions was only three weeks on the job as attorney general when he held a news conference on March 2, 2017, to announce that he would recuse himself from any investigations involving Russia and the 2016 presidential campaign.