DOD IG Opens Investigation Into Mike Flynn's Foreign Income

A little earlier in the week, it was reported that the White House had declined to produce documents requested by the House Oversight Committee. This was not unexpected. I’d be surprised if any White House would respond to a document request from a Congressional committee on separation of powers grounds. While the White House did not respond, the Defense Department did. The documents showed that former National Security Adviser Mike Flynn had neither disclosed payments made to him for a speech to the Russian media company, RT, nor had he requested permission to accept the money. This runs afoul of 37 USC 908 which codifies the “Emoluments Clause” found in Article I, Section 9 of the US Constitution.

Now it seems, at least according to Elijah Cummings, that the DOD IG has opened an investigation:

(As an aside, there is something about this guy’s face that makes me want to drive to New York for the sole purpose of slapping that ridiculous little mustache and douchey smirk off his face. I may set up a GoFundMe to pay for gas and bail money. Keep an eye out for the opportunity do help me advance the cause of manliness and Western Civilization.)

This is the IG referral letter

flynn-ig-letter

Having spent three years as an investigator for the Department of the Army IG I can shed some insight.

First off, any allegation of misconduct by a serving or retired general officer is going to get the attention of either their service IG or the DOD IG. The allegation doesn’t have to come from an official referral, it can come from reading the front page of the local newspaper. That is a requirement. Any general officer is going to have a trail of IG investigations in their wake because making claims of misconduct against general officers is a sport in come circles.

The second part of this is that the allegation the IG is investigating is not criminal.* Yes, he “broke the law” but not all laws carry criminal penalties. There are administrative sanctions available in the form of a clawback of retirement benefits equal to the foreign payment. If you are interested, this is the official ethics briefing on the emoluments clause and this is the Code of Federal Regulations entry covering the subject (go to the end of section 84.33).

emoluments-slide

So even if the allegations are substantiated this is not going to cause Flynn to “flip” on someone to avoid jail time. Flynn will have his retirement pay docked to the tune of about $40K.

*Because witness confidentiality is the cornerstone of the military IG system and because a criminal case will nearly inevitably result in witness statements being made available to the accused, military IGs withdraw from cases at the moment a possible criminal action becomes possible and refer the case to investigative authorities.