It has long been obvious that the case brought by Special Counsel Robert Mueller against Michael Flynn stunk to high heaven. That has been copiously confirmed over the last three weeks as the Justice Department made a series of stunning disclosures that undermined whatever vestige of propriety remained.
General Flynn, former head of the Defense Intelligence Agency, served fleetingly as President Trump’s first national security advisor. At the time, in the wake of Hillary Clinton’s stunning defeat in the 2016 election, the media-Democrat complex fueled a “collusion” narrative — purportedly, Trump had schemed with Russia to hack Democratic email accounts, and would now do the Kremlin’s bidding from the Oval Office.
Flynn was caught up in this fever dream because, as a top Trump campaign adviser and transition official, he had some conversations with the Russian ambassador — just as he was speaking with many foreign dignitaries.
Although the FBI and the Obama administration had recordings of these calls and knew Flynn had done nothing improper, the fact that they occurred was used to stoke the claim that Flynn may have agreed on Trump’s behalf to drop sanctions Obama had imposed on Russia. He had not, but the mere mention of sanctions was politically explosive.
There was no basis to believe Flynn, a decorated former US combat commander, would ever be Moscow’s mole, much less that he had committed a crime. But Obama officials speculated that perhaps they could nail him for violating the Logan Act. On the books since 1799, this provision purports to make it a crime to engage freelance diplomacy without government authorization. It is almost certainly unconstitutional, no one has ever been successfully prosecuted for violating it, and the government hasn’t even tried to indict anyone on it since before the Civil War. It would be absurd to try to apply it to any American, but to contemplate doing it against a transition official slated to become national security adviser was particularly ludicrous.
Yet the FBI used it pretextually as a basis to conduct a perjury-trap interview of Flynn at the White House in his second day on the job. Knowing its investigation was baseless, the bureau did not seek the required permission from the White House to grill a member of the president’s staff. Former FBI director James Comey has weirdly bragged that, against protocol, he sent two agents to Flynn’s office — after Comey’s then-deputy, Andrew McCabe, called to discourage Flynn from getting a lawyer or giving a heads-up to the White House counsel.
Because the agents already had a recording of the Flynn-Kislyak conversations, they did not need to question Flynn to understand them. Yet they peppered him about what had been said without refreshing his recollection by playing the recording, hoping to trip him up — since a lie could have been a basis to get him fired and prosecuted.
Initially, Flynn was not charged because the agents who conducted the interview did not believe he’d intended to deceive them. Any inconsistencies appeared to be innocent (and understandable) failures of recollection about conversations that had occurred weeks earlier. Besides, they’d already succeeded in getting Flynn cashiered as national security adviser — Trump fired him after just three weeks.
The FBI was poised to close its case against Flynn. He was not charged until 10 months later. By then Mueller had taken over the case, along with the cabal of activist Democratic lawyers he had recruited to conduct the investigation. Flynn has long maintained that they pressured him to plead guilty by threatening that if he did not do so, they would indict his son for failing to register as a foreign agent in connection with business done by Flynn’s private intelligence firm — even though such “FARA” prosecutions were nearly as infrequent as Logan Act indictments before Mueller came along.
The case was troubling enough that Attorney General Bill Barr appointed US Attorney Jeff Jensen of St. Louis to review it. This has recently resulted in eye-popping disclosures: Indications that there was an agreement not to prosecute Flynn’s son (which was not disclosed to the court); the withholding of exculpatory evidence, including the FBI’s perjury trap deliberations; and evidence that the bureau improperly edited its report summarizing its ambush interview of Flynn.
With Flynn’s tireless new attorney, Sidney Powell, pressing for more discovery and pleading with the judge to throw the case out based on outrageous government misconduct, the ball was in the Justice Department’s court. On Thursday, DOJ did the right thing, dropping the case.
General Flynn can never be made whole for the financial and emotional ruin wrought on him and his family over the last three years. But the prosecution’s decision to admit its case was baseless is better for Flynn than a pardon would have been. It is justice — too long delayed, but in the end not denied.
Andrew C. McCarthy, a former chief assistant US attorney, is a contributing editor of National Review. Twitter: @AndrewCMcCarthy