I’m not particularly sorry that Mike Flynn is no longer National Security Adviser but I am horrified by the way he was subjected to a campaign of leaks, that would be the leak of information that was basically illegal to possess from a very sensitive intelligence program. In National Review Andy McCarthy makes an interesting case that Flynn was targeted for intimidation by the FBI. This is the set up from the New York Times:
Just days into his new position as President Trump’s national security adviser, Michael T. Flynn found himself in a meeting that any White House official would dread. Face to face with F.B.I. agents, he was grilled about a phone call he had had with Russia’s ambassador.
What exactly Mr. Flynn said has not been disclosed, but current and former government officials said on Tuesday that investigators had come away believing that he was not entirely forthcoming. Soon after, the acting attorney general decided to notify the White House, setting in motion a chain of events that cost Mr. Flynn his job and thrust Mr. Trump’s fledgling administration into a fresh crisis.
On what basis was the FBI investigating General Flynn? To predicate an investigation under FBI guidelines, there must be good-faith suspicion that (a) a federal crime has been or is being committed, (b) there is a threat to American national security, or (c) there is an opportunity to collect foreign intelligence relevant to a priority established by the executive branch. These categories frequently overlap — e.g., a terrorist will typically commit several crimes in a plot that threatens national security, and when captured he will be a source of foreign intelligence. Categories (a) and (b) are self-explanatory. It is category (c), intelligence collection, that is most pertinent to our consideration of Flynn.
McCarthy, a former prosecutor on federal terrorism cases, then examines the likely reasons for questioning Flynn.
Most people think of the FBI as a federal police department that does gumshoe detective work, albeit at a high level and with peerless forensic capabilities. That, indeed, is how I thought of the FBI for my first eight years as a federal prosecutor, before I began investigating terrorism cases and became acquainted with the FBI’s night job. Turns out the FBI’s house has a whole other wing, separate and apart from its criminal-investigation division. Back in pre-9/11 days, this side of the house was called the foreign counter-intelligence division. Now, it is the national-security branch. Whatever the name, it is our domestic security service, protecting the nation against hostile foreign activity — espionage, other hostile intelligence ops, terrorism, acquisition of technology and components of weapons of mass destruction, and so on.
Most of the national-security branch’s work is done in secret, never intended to see the light of day in courtroom prosecutions. In some countries, including Britain, domestic security is handled by an agency (MI5) independent of domestic law enforcement (MI6). In our country, it is handled by a single agency, the FBI, based on the assumption (a sound one in my opinion) that the two missions are interrelated and that one can leverage the other more easily under one roof.
So how do we make sure the FBI does that if we’re giving it license to investigate people even when it does not suspect a crime or a threat? We do it by dividing the subjects of its intelligence investigations into three classifications and giving the FBI commonsense authority to deal with each.
These are the categories:
- Aliens acting as overt foreign agents
- Americans acting as foreign agents — overt and covert
- Americans who are not foreign agents but may possess foreign intelligence
McCarthy, rightfully in my view, reasons that Flynn obviously does not fit in the first two categories. If he did, he wouldn’t have been granted a security clearance and someone would already have leaked that tidbit. If he was in the third category, then this is what the FBI manual says about how contacts in the third category are to be conducted:
“The FBI should . . . operate openly and consensually with U.S. persons to the extent practicable when collecting foreign intelligence that does not concern criminal activities or threats to the national security.”
This raises a question of why the FBI even talked to Flynn:
That brings us back, finally, to General Flynn. Anonymous intelligence officials (a category that may include the FBI — though we do not know who the leakers are) outrageously revealed to the New York Times that Flynn was subjected to FBI interrogation (“grilled,” the Times says) and that the Justice Department suspects that Flynn did not provide truthful, accurate information.
That does not sound like a cordial, “open and consensual” conversation. It sounds like an investigation. Why would Flynn be the subject of an in
The call to Kislyak, of course, was intercepted. No doubt the calls of other American officials who have perfectly valid reasons to call Russian diplomats have been intercepted. It is the FBI’s scrupulous practice to keep the identities of such interceptees confidential. So why single Flynn out for identification, and for investigation? FBI agents did not need to “grill” Flynn in order to learn about the call — they had a recording of the call.
They also knew there was nothing untoward about the call. We know that from the Times report — a report that suggests an unseemly conjoining of investigative power to partisan politics. The report informs us that as the FBI set its sights on Flynn, its agents were consulting with “Obama advisers.” Interesting, no?…
Interesting indeed. And McCarthy points out what we’ve previously discussed. The FISA law forbids divulging conversations by US persons who are intercepted under FISA unless they are part of an actual investigation.
And there was no need to “grill” him over the contents of a conversation of which the FBI and Justice Department already had a recording.
And the FBI has no business probing the veracity of public statements made by presidential administrations for political purposes — something it certainly resisted doing during the Obama administration.
There appears to have been no foreign-intelligence or criminal-investigative purpose served by the FBI’s interrogation of General Flynn. It is easy to see why Democrats would want to portray Flynn’s contact with the Russian ambassador as worthy of an FBI investigation. But why did the FBI and the Justice Department investigate Flynn — and why did “officials” make sure the press found out about it?
Good questions all.
If McCarthy is correct, Flynn appears to have been targeted by the FBI for the purposes of political intimidation and to try to gain some information that could be used to damage him. The FBI was successful. They created a firestorm of suspiction about an act that Flynn had very legal reason to carry out, i.e. calling the Russian ambassador, and then called his truthfulness in the illegal interview into question.
Right now three House committees and the president have asked Justice to investigate this affair. I suspect that when the dust settles the people suffering the most are those behind this scheme.