From Consortium News
Retired U.S. Army Lt. Gen Michael Flynn at a campaign rally for Donald Trump at the Phoenix Convention Center in Phoenix, Arizona. Oct. 29, 2016.
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Russia-gate enthusiasts are thrilled over the guilty plea of President Trump's former National Security Adviser Michael Flynn for lying to the FBI about pre-inauguration conversations with the Russian ambassador, but the case should alarm true civil libertarians.
What is arguably most disturbing about this case is that then-National Security Adviser Flynn was pushed into a perjury trap by Obama administration holdovers at the Justice Department who concocted an unorthodox legal rationale for subjecting Flynn to an FBI interrogation four days after he took office, testing Flynn's recollection of the conversations while the FBI agents had transcripts of the calls intercepted by the National Security Agency.
In other words, the Justice Department wasn't seeking information about what Flynn said to Russian Ambassador Sergey Kislyak -- the intelligence agencies already had that information. Instead, Flynn was being quizzed on his precise recollection of the conversations and nailed for lying when his recollections deviated from the transcripts.
For Americans who worry about how the pervasive surveillance powers of the U.S. government could be put to use criminalizing otherwise constitutionally protected speech and political associations, Flynn's prosecution represents a troubling precedent.
Though Flynn clearly can be faulted for his judgment, he was, in a sense, a marked man the moment he accepted the job of national security adviser. In summer 2016, Democrats seethed over Flynn's participation in chants at the Republican National Convention to "lock her [Hillary Clinton] up!"
Then, just four days into the Trump presidency, an Obama holdover, then-acting Attorney General Sally Yates, primed the Flynn perjury trap by coming up with a novel legal theory that Flynn -- although the national security adviser-designate at the time of his late December phone calls with Kislyak -- was violating the 1799 Logan Act, which prohibits private citizens from interfering with U.S. foreign policy.
But that law -- passed during President John Adams's administration in the era of the Alien and Sedition Acts -- was never intended to apply to incoming officials in the transition period between elected presidential administrations and -- in the past 218 years -- the law has resulted in no successful prosecution at all and thus its dubious constitutionality has never been adjudicated.
But Yates extrapolated from her unusual Logan Act theory to speculate that since Flynn's publicly known explanation of the conversation with Kislyak deviated somewhat from the transcript of the intercepts, Flynn might be vulnerable to Russian blackmail.
Russia's former Ambassador to the United States Sergey Kislyak.
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Yet, that bizarre speculation would require that the Russians first would have detected the discrepancies; secondly, they would have naively assumed that the U.S. intelligence agencies had not intercepted the conversations, which would have negated any blackmail potential; and thirdly, the Russians would have to do something so ridiculously heavy-handed -- trying to blackmail Flynn -- that it would poison relations with the new Trump administration.
Yates's legal theorizing was so elastic and speculative that it could be used to justify subjecting almost anyone to FBI interrogation with the knowledge that their imperfect memories would guarantee the grounds for prosecution based on NSA intercepts of their communications.
Basically, the Obama holdovers concocted a preposterous legal theory to do whatever they could to sabotage the Trump administration, which they held in fulsome disdain.
At the time of Flynn's interrogation, the Justice Department was under the control of Yates and the FBI was still under President Obama's FBI Director James Comey, another official hostile to the Trump administration who later was fired by Trump.