We Could All Be General Michael Flynn Tomorrow
The Obama national security team's outrageous abuse of power mirrors the underbelly of our prosecutorial system at large.
The Department of Justice’s case against retired Army Lieutenant General and former National Security Advisor Michael Flynn has exposed an ugly reality involving the abuse of power at the highest levels of the Executive Office all the way down the justice system this country ostensibly holds so dear.
Plea bargains are an unfortunate reality of an American system of justice which finds merit in coercing people to admit guilt for crimes they didn’t commit in order to avoid the expense of a trial and to prevent friends and family from potential legal liability. If the purpose behind such procedural abuse of power is to fight actual crime, the American people have grown accustomed to turning a blind eye. But if the purpose is to exact political revenge on someone who has incurred the disfavor of those in power, then the plea bargain system is a direct assault on the Constitution that should insult every American, regardless where they stand on the respective merits of the case. General Flynn’s case falls firmly in the latter category.
Mike Flynn isn’t everyone’s cup of tea. The controversial intelligence officer is perhaps best known for his short 24-day tenure as President Trump’s National Security Advisor, relieved of his duties for allegedly lying about a conversation he had with then-Russian Ambassador to the United States, Sergei Kislyak. The FBI claimed Flynn had lied about this conversation to its agents during a January 24, 2017 interview, a charge Flynn subsequently pled guilty to.
But in a surprising turn of events, the Department of Justice has dropped its case against Flynn on the eve of his being sentenced in a Federal Court. In their dismissal of the case, the Justice department concluded that the FBI’s interview with Flynn was “conducted without any legitimate investigative basis” and that the questioning was “untethered to, and unjustified by, the F.B.I.’s counterintelligence investigation into Mr. Flynn.”
Flynn’s many critics have cried foul, claiming the dismissal is nothing short of a perversion of justice carried out at the behest of President Trump by an overly partisan Attorney General, William Barr. Flynn’s supporters have praised this outcome as a clear case of exoneration in the face of corrupt FBI agents who abused the extraordinary powers they wield to engage in Constitutionally impermissible conduct designed to frame the former General.
In 2018, the Department of Justice initiated approximately 80,000 federal prosecutions. Two percent of these cases went to trial, with an 83 percent conviction rate. Of the remaining 98 percent of the cases, some 90 percent ended with the defendant pleading guilty; the remaining 8 percent were dismissed. The plea process is so prevalent and pervasive in the U.S. Court system that in the Supreme Court’s 2012 decision in Missouri v. Frye, Justice Anthony Kennedy, writing for the majority, quoted a prominent law review article which concluded that “[Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system.”
Federal prosecutors are equipped with a considerable range of legal weapons that can be used to compel confessions and discourage a jury trial, including charge-stacking (charging multiple criminal counts derived from a single act), mandatory-minimum sentences which eliminate discretion on the part of a sentencing judge, pretrial confinement, inordinately high bail, threats against friends and family, and the reality that any sentence handed down after trial will be substantially greater than one that could be reached via a plea bargain.
The upside of such a process is a streamlined criminal justice system which places a premium on convictions and incarceration without the cost of a trial. The downside, however, is an unacceptably high rate of false confessions obtained by the plea deal process—the National Registry of Exonerations estimates that as many as 20 percent of all plea deal-related confessions are false.
The reason for such a high rate of occurrence rests in the coercive reality attached to the tools used by the prosecutor to leverage a plea in the first place. For someone who is guilty of a crime, a plea deal that reduces a potential 20-year sentence to five is very attractive. For an innocent person, however, the prospect of not being able to afford competent legal representation (an all-too reality, especially in one is subjected to pre-trial confinement and as such unable to earn a living), combined with potential threats made to prosecute family and friends, make pleading guilty to a crime not committed a viable option.
The plea bargain process also facilitates prosecutorial misconduct. By pleading guilty, a defendant cedes control of the processes of justice to the prosecution; issues related to discovery—the requirement on the part of the prosecution to turn over all evidence relating to the charged conduct, even if exculpatory in nature—are often brushed aside, since guilt is admitted and no challenge to the charges will be mounted. Prosecutors more often than not bully their way into a coerced plea agreement, even when they know that their case would not withstand scrutiny, because simple statistics have proven that more often than not they can get away with it.
The prosecution of General Flynn is a text-book example of clear prosecutorial abuse designed to obtain a guilty plea. The FBI initiated a counterintelligence-scope investigation against General Flynn not because he was accused of committing a crime, but rather because he had incurred the wrath of the Obama administration.
When the FBI opened its Crossfire Hurricane investigation was opened on July 31, 2016, its scope was limited to allegations that a Trump campaign advisor, George Papadopoulos, was in contact with persons working on behalf of the Russian government who were involved in the alleged theft of documents from the Democratic National Committee server. Flynn had no connection whatsoever to this issue. However, the FBI used the Crossfire Hurricane investigation as cover to open a separate investigation, known as Crossfire Razor, against Flynn based upon contacts he had with Russia Today, a state-sponsored media outlet.
William Barr has since determined that Crossfire Razor was not a bona fide counterintelligence investigation in so far as it lacked proper predication and Flynn’s Russian connections were not materially relevant.
In January 2017 the FBI was preparing to shut down Crossfire Razor when FBI Special Agent Peter Strzok argued that it remain open so that he could conduct an interview with Flynn about his telephone call with Ambassador Kislyak in December 2016. This is where the Flynn case loses touch with its foundation of legality. The Flynn-Kislyak phone call was monitored by the U.S. intelligence community. Normally the identity of any U.S. citizen so monitored is “masked,” or hidden, from any consumer of the intelligence. On certain occasions, select senior officials may request that an identity be “unmasked” to allow for a greater understanding of the context of the conversation. Flynn’s identity was “unmasked” using this procedure, most likely on the orders of then-FBI Director James Comey. According to Comey, he then briefed Director of National Intelligence, James Clapper, who in turn briefed President Obama.
There was bad blood between Flynn, Clapper and Obama. On November 10, 2016, when Obama met with President-elect Trump in the White House, he warned Trump not to hire Flynn as his National Security Advisor, ostensibly because of his behavior while serving as the Director of DIA; Trump ignored this advice, naming Flynn as the incoming NSA on November 18. Clapper was the man who fired Flynn at the DIA in 2014.
On January 12, David Ignatius published an article in The Washington Post which detailed Flynn’s December conversation with Kislyak; Sydney Powell, Flynn’s laywer, has filed documents with the Federal Court asserting that Ignatius had received this highly classified information in violation of the law, and furthermore that is was Clapper who cleared Ignatius to “take the kill shot on Flynn” by publishing the details of the Flynn-Kislyak conversation.
If the potential for collusion between the FBI Director (Comey), the Director of National Intelligence (Clapper) and the President of the United States (Obama) to undermine Flynn wasn’t disturbing enough, the fact that Ignatius’ article enabled the FBI to conduct an interview on January 24 with Flynn that has been described by William Barr as “a perjury trap” should seal the deal.
Flynn was subsequently fired as the NSA, charged with lying to the FBI, bankrupted in the process of trying to defend himself, and threatened with the prosecution of his son if he opted to take the matter to trial. Like many before him, Flynn pled guilty to a crime he never should have been charged with in the first place. Only the diligence of Flynn’s current legal team in forcing disclosure of exculpatory information, combined with William Barr’s efforts to expose wrongdoing by the FBI and the Intelligence Community in investigating alleged collusion between the Trump campaign and Russia, made the dismissal of Flynn’s case possible.
It doesn’t matter where one stands on the issue of Mike Flynn, the man. I for one am personally disturbed by his overly partisan approach toward national security, and the liberty he takes with facts when making an argument. I don’t believe he was the right person to serve as Trump’s National Security Advisor. Apparently neither did President Obama and his national security team. But we don’t have a vote in this matter; the National Security Advisor is President Trump’s responsibility to select. Elections have consequences.
The Obama national security team abused its power by unmasking Flynn’s identity, then leaked Flynn’s identity to the press, using this press reporting to justify the continuance of a baseless counterintelligence investigation in order to set a perjury trap intended to place Flynn in legal jeopardy. This is not how American justice is supposed to be dispensed, and the fact that Flynn had to undergo this ordeal should send a shiver down every American’s spine, because if left unchecked, there but for the grace of God go us all.
Scott Ritter is a former Marine Corps intelligence officer who served in the former Soviet Union implementing arms control treaties, in the Persian Gulf during Operation Desert Storm, and in Iraq overseeing the disarmament of WMD. He is the author of several books, including his forthcoming, Scorpion King: America’s Embrace of Nuclear Weapons From FDR to Trump (2020).