Author Robert Fulghum once wrote, “All I really need to know about how to live and what to do and how to be I learned in kindergarten. Wisdom was not at the top of the graduate-school mountain, but there in the sandpile at Sunday School.”
In the exceedingly complex tale of the Michael Flynn prosecution, it’s easy to drown in the details. But it helps to remember that many of the principles of due process and fairness enshrined in our Constitution actually spring from our common experience in the court of kindergarten.
Many of us can recall with bitterness a time we were blamed for something we didn’t do, or being judged by a teacher with obvious bias, or having your words twisted in order to make the “crime” fit a predetermined punishment.
Let us then convene the court of kindergarten to make relatable some of the many injustices committed by the government in the Flynn case.
It’s not fair to interrogate somebody over something that’s not prohibited.
While many repeat the talking point, “Flynn lied to the FBI,” few have gone back to review what it is he’s accused of having lied about. Flynn is accused of lying about asking other countries how they planned to vote on an Egyptian-sponsored proposed U.N. resolution condemning certain Israeli settlements. Why was the FBI asking about that? He’s also accused of lying about asking Russia not to escalate the situation in response to sanctions imposed by the United States on Russia.
Again, why is the FBI trying to criminalize that?
The FBI should not have been asking him about these phone calls. The elected incoming president had every right to authorize Flynn to begin reaching out to other leaders. It was part of the peaceful transfer of power from the Obama Administration to the Trump Administration. The FBI’s interrogation of Flynn was just part of a greater effort to disrupt this constitutional process.
In kindergarten, this would be the equivalent of getting questioned by a teacher over associating with or talking to a student the teacher didn’t like. Even a kindergartener would realize the unfairness of a teacher using her authority to interrogate him over a perfectly appropriate conversation with another child.
The Justice Department finally admitted that the January 24, 2017 Flynn/FBI interview “was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn . . . and therefore does not believe Mr. Flynn’s statements were material even if untrue.”
It’s not fair to force somebody to admit to lying without showing him the evidence.
Taking the analogy another step, even a kindergartener would realize the unfairness of demanding a student admit to “lying” without sharing the information that confirms the falsity of the supposed lie. If the student was accused of cheating on a test or falsifying a note from a parent, most people would expect that the student would have access to the information the teacher believes proves the student lied. In the case of Flynn, however, the government has taken the bizarre position that the original recording of Flynn’s conversations are not relevant to whether he lied. The government has refused to share the audio recording of the Flynn/Kislyak conversation.
It’s not fair to punish somebody for “lying” when his words have been twisted and distorted.
Even a kindergartner understands that one shouldn’t be punished for saying something he didn’t say. For some reason, the FBI agents did not record the interview with Flynn. This allowed the “official” account of the FBI’s interview with Flynn to be edited repeatedly by a group of people who, in many cases, were not even involved in the original interview. As Mark Hemingway points out,
Former FBI agents and federal prosecutors tell RealClearInvestigations that the documents show suspiciously irregular handling and editing of Flynn’s FD-302 form, the official document used to record what happens in FBI interviews . . . In one text, dated February 10, Strzok tells Page he is heavily editing Pientka’s 302 form to the point he’s “trying not to completely re-write” it. Other messages reveal that Page, who did not attend the interview, reviewed the 302 form and made editing suggestions. On February 14, Page texts Strzok, “Is Andy good with the 302?”—presumably referring to FBI deputy director Andrew McCabe. The next day, February 15, the Flynn 302 was officially submitted and filed with the FBI. FBI supervisors like Strzok, however, are not supposed to rewrite other agents’ 302 forms. Nor are 302 forms supposed to be edited by FBI personnel who were not present at the interview, and both of these things happened in the Flynn case.
Writing for the Wall Street Journal, retired FBI agent Thomas J. Baker recently added this point: “Worse still, the FD-302 that was eventually provided to the court wasn’t that of the agents’ interview of Mr. Flynn. It was instead a FD-302 of an interview of Mr. Strzok, conducted months later, about his recollections of the original interview. Truly bizarre.”
There were so many edits that the FBI lost track of who recorded which version.
The edits were sufficiently substantial that the government ultimately admitted that it could not prove Flynn even made the “relevant false statements.”
It’s not fair to criminalize somebody for mis-remembering facts.
According to the 302, Flynn told the FBI that, “prior to the Presidential inauguration, Flynn spoke to representatives in each of approximately thirty countries’ governments . . . . Flynn did not know if Putin and Trump will get along, but it is Flynn’s job to figure out paths to work with Russia to fight terrorism.”
The agent asked Flynn, “if he recalled any conversation with Kislyak in which . . . Flynn might have encouraged Kislyak not to escalate the situation.” Flynn responded, “not really. I don’t remember.”
In response to another question about whether he recalled a detail from his call with Kislyak, Flynn responded, “Not really. I don’t remember.”
In another response, Flynn reportedly told agents, “It’s possible that he talked with Kislyak on the issue, but if he did, he did not remember doing it . . . Flynn remembered making four to five calls that day about this issue.”
The government ultimately admitted,
[T]he statements in question were not by their nature easily falsifiable. In his interview, Mr. Flynn offered either equivocal (“I don’t know”) or indirect responses, or claimed to not remember the matter in question. See United States v. Ring [citition omitted] (holding that “faulty memory” is not enough to establish “willful” lie absent proof the defendant indeed remembered the matter in question). Combining the vague substance of the answers, the FBI’s own preliminary estimation of Mr. Flynn’s truthfulness, the inconsistent FBI records as to the actual questions and statements made, and Director Comey’s own sentiment that the case was a “close one,” [citation omitted] the evidentiary problems that have emerged create reasonable doubt as to whether Mr. Flynn knowingly and willingly lied to investigators during the interview.
The list is actually much longer than what I’ve highlighted above. But these themes drive home the point: the FBI abused its awesome power in order to railroad Flynn. Of greater concern, however, is the Left’s energetic defense of the patently unfair technique of using an ambush interview to turn a political target into a criminal defendant.
The Flynn prosecution should already be over. The Department of Justice tried to dismiss the Flynn prosecution for these and other reasons.
But it isn’t over because an op-ed author for the Washington Post published a piece that convinced the judge to keep the case alive. The presiding judge, Emmet Sullivan, entered an order blocking the dismissal until he decides whether to grant the motion to dismiss and, separately, whether to hold Flynn in contempt for pleading guilty to a crime he didn’t commit.
Flynn’s attorney on Tuesday filed an emergency petition with the D.C. Circuit Court of Appeals. On Thursday, the appeals court unanimously ordered Sullivan to respond by June 1 to Flynn’s emergency petition.
The debate has really moved past Flynn to one about the character of federal law enforcement. In the “lawfare”/get-Trump era, the law is a weapon to be used against political opponents. If you really hate somebody but can’t find a crime with which to charge him, this technique allows you to bury your opponent in a multi-year felony prosecution.
We wouldn’t want our children attending kindergartens that practiced similar techniques. Nor should we tolerate these dirty tactics in a constitutional republic. But the proponents of the Flynn persecution don’t care. They aren’t fighting for justice. They’re fighting to keep their weapon.