I hope that the day after the election—Wednesday, Nov. 4, 2020—President-elect Joe Biden and his foreign policy advisors spend the day reaching out to the major foreign leaders, urging them not to overreact to any initiatives of the Trump administration between then and Inauguration Day on Jan. 20.
Biden’s message would be this: “The new administration will take a very different view of things and can undo anything the previous administration has done.”
But, if this happy eventuality comes to pass, Joe Biden and his advisors will be doing exactly what Michael Flynn, who was then serving as national security advisor to President-elect Donald Trump, did in speaking with Sergey Kislyak, Russian ambassador to the U.S., urging the Russian government not to respond to the sanctions the Obama administration had imposed on Russia for its interference with the 2016 election.
The transcript of that call has not been released, but the clear implication was that the new administration would take a different view of the sanctions.
In other words, Flynn’s conversation was not only not a crime, it was simply a national security advisor conducting foreign policy on behalf of a new administration.
That is why the U.S Justice Department’s decision to end Flynn’s prosecution was the right thing to do.
Of course, it is a sensitive matter for a new president to begin to conduct foreign policy before actually assuming office. Nevertheless, it is something that every newly-elected president does.
The FBI learned of the Kislyak conversation in January 2017 and concluded, correctly, that Flynn had lied about the substance of this conversation to the incoming vice president, Mike Pence.
According to Mary McCord, then acting assistant attorney for national security at the Department of Justice, leadership at the Justice Department wanted to alert the incoming administration to these misstatements. But the FBI instead continued its investigation into Flynn on both counterintelligence and potentially criminal grounds.
Then, early in the Trump administration, the FBI interviewed Flynn without alerting the Justice Department.
It was at this January 2017 interview that Flynn lied to the FBI about the substance of the Kislyak conversation, which is the federal crime to which Flynn pleaded guilty.
The FBI apparently thought that Flynn’s conversation might have violated the Logan Act, a 1799 law that forbids communications by unauthorized American citizens with foreign governments about disputes with the U.S.
The Logan Act had never been invoked in American history, is of doubtful constitutionality, and obviously could not have applied to Flynn’s conversation with the Russian ambassador.
The counterintelligence concern was that Flynn’s lies could have made him vulnerable to Russian blackmail, a very serious issue, but one that needed to be taken up with the Trump Administration, not kept from it.
In other words, Flynn’s interview should not have taken place. There was no underlying crime and the Trump administration should have been alerted.
There is a term used to describe a prosecutor who places a person who has not committed a crime under oath in hopes that the person will then commit perjury— a perjury trap. That is what some people believe ex-Independent Counsel Ken Starr did to President Bill Clinton. That is essentially what happened to Flynn.
Handwritten notes by an FBI agent, which were later discovered, enunciate the trap: “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
There is no question that Flynn lied to the FBI. He admitted doing so twice when he pleaded guilty. But if the interview should not have taken place, it is entirely proper for U.S. Attorney General William Barr to end the prosecution against Flynn.
Under these circumstances, it is also entirely proper to allow Flynn to withdraw his guilty pleas. Normally, withdrawals of guilty pleas are strongly disfavored, both because of practical reasons and because a defendant is usually claiming that earlier statements to the court had been false.
But, in this instance, Flynn’s admissions were truthful. It is the prosecution that should not have gone forward.
Two important questions remain. First, why did Flynn lie? The answer to that has to be that Flynn was covering up with the FBI his earlier misrepresentations to Pence. This was dishonorable, but understandable.
But, then why did Flynn mislead Pence in the first place?
Pence publicly stated that the new administration had not asked the Russians to de-escalate the situation over the sanctions, apparently relying on inaccurate information given to him by Flynn.
Pence has since said that Flynn’s inaccuracies were “unintentional,” but that hardly seems plausible given the direct contradiction over what had been actually said to the Russians.
It is more likely that Flynn was lying in order to serve the interests of the Trump administration.
Flynn accurately conveyed to the Russian ambassador the hope of the new administration for better relations with Russia and skepticism about Russian interference in the election. But he did not want to embarrass Pence by telling him. This would not be the first time that a government official gave a higher-up plausible deniability.
This is political hardball, but it is not criminal.
The second question is, how did dropping this case become so politically controversial? The New York Times darkly called the dismissal a “Perversion of Justice,” but it has always been, and has to be, the job of the president and the attorney general to prevent unjust prosecutions.
The reason for the controversy, of course, is that Trump wants to use the FBI interview of Flynn to discredit the investigation into collusion with Russia and, ultimately, to try to undermine the plain fact that Russia interfered with the 2016 election to benefit him.
Notwithstanding Trump’s misleading uses of the case, however, the prosecution of Flynn was properly dropped. Lying about something that is not a crime should usually not be treated as a crime. The political fallout from dismissing the case cannot justify a prison sentence for an innocent man. The Democrats should just go along. This time, politics be damned.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.