I’m wondering how many of us on the political left will be able to tamp down tribal instincts in order to see these disturbing facts for what they are. Matt Taibbi explains in an article titled “Democrats Have Abandoned Civil Liberties: The Blue Party’s Trump-era Embrace of Authoritarianism Isn’t Just Wrong, it’s a Fatal Political Mistake”:
Warrantless surveillance, multiple illegal leaks of classified information, a false statements charge constructed on the razor’s edge of Miranda, and the use of never-produced, secret counterintelligence evidence in a domestic criminal proceeding – this is the “rule of law” we’re being asked to cheer.
. . . .
In the last four years the blue-friendly press has done a complete 180 on these issues, going from cheering Edward Snowden to lionizing the CIA, NSA, and FBI, and making on-air partners out of drone-and-surveillance all-stars like John Brennan, James Clapper, and Michael Hayden. There are now too many ex-spooks on CNN and MSNBC to count, while there isn’t a single regular contributor on any of the networks one could describe as antiwar.
Democrats clearly believe constituents will forgive them for abandoning constitutional principles, so long as the targets of official inquiry are figures like Flynn or Paul Manafort or Trump himself. In the process, they’ve raised a generation of followers whose contempt for civil liberties is now genuine-to-permanent.
If you are willing to dig deeper into the details (and I hope you are), spend some time with Glenn Greenwald’s article and detailed video (1 hour 45 min long). The long title to Greenwald’s article: “New Documents From the Sham Prosecution of Gen. Michael Flynn Also Reveal Broad Corruption in the Russiagate Investigations.” The Surveillance State is running amok and those of all political stripes should be deeply disturbed. Neither Taibbi nor Greenwald expect typical members of the political left to have enough integrity to step out or their tribal costumes in order to see and appreciate these disturbing facts. Greenwald’s analysis of tribal blindness is spot on:
Because U.S. politics is now discussed far more as tests of tribal loyalty (“Whose side are you on?”) than actual ideological or even political beliefs (“Which policies do you favor or oppose?”), it is very difficult to persuade people to separate their personal or political views of Flynn (“Do you like him or not?”) from the question of whether the U.S. government abused its power in gravely dangerous ways to prosecute him.
Flynn is a right-wing, hawkish general whose views on the so-called war on terror are ones utterly anathema to my own beliefs. That does not make his prosecution justified. One’s views of Flynn personally or his politics (or those of the Trump administration generally) should have absolutely no bearing on one’s assessment of the justifiability of what the U.S. government did to him here — any more than one has to like the political views of the detainees at Guantanamo to find their treatment abusive and illegal, or any more than one has to agree with the views of people who are being censured in order to defend their right of free expression.
The ability to distinguish between ideological questions from evidentiaryquestions is vital for rational discourse to be possible, yet has been all but eliminated at the altar of tribal fealty. That is why evidentiary questions completely devoid of ideological belief — such as whether one found the Russiagate conspiracy theories supported by convincing evidence — have been treated not as evidentiary matters but as tribal ones: to be affiliated with the left (an ideological characterization), one must affirm belief in those conspiracy theories even if one does not find the evidence in support of them actually compelling. The conflation of ideological and evidentiary questions, and the substitution of substantive political debates with tests of tribal loyalty, are indescribably corrosive to our public discourse.
As a result, whether one is now deemed on the right or left has almost nothing to do with actual political beliefs about policy questions and everything to do with one’s willingness to serve the interests of one team or another. With the warped formula in place, U.S. politics has been depoliticized, stripped of any meaningful ideological debates in lieu of mindless team loyalty oaths on non-ideological questions.
I do not know if my look at Flynn’s real criminal conduct is tribal or not. I’ll look at Greenwald’s story after I tell you my take and what informs it. Please, let me know what you decide.
This is my understanding of the Flynn prosecution.
Flynn had a non-custodial interview with the FBI at the White House. Flynn lied about contacts with Russians in an investigation about Russian interference in the 2016 elections. Flynn had lied about conversations with and the contents of conversations with Russians, especially their U.S. Ambassador, where some “review” of U.S. sanctions was alluded to by Flynn the very day President Obama imposed them upon Russia for interfering in the 2016 election in favor of Trump. Flynn was not prosecuted for other admitted criminal conduct as part of the plea bargain reached. Flynn repeatedly made written and oral claims, under oath, of his guilt for the offense for which he was charged and other offenses. Flynn was offered the opportunity to withdraw his plea several times but refused and insisted he was guilty and wished to proceed and waive his rights. The court deferred sentencing and Flynn hired other counsel. Flynn repeatedly admitted his guilt of the offense for which he was charged and. if not guilty, perjured himself by lying under oath many times orally and in writing. Flynn may still be charged with FARA violations so the dismissal of charges by Barr is ineffective and irrelevant unless Trump formally pardons Flynn to prevent further prosecution within the five year statute of limitaions.
The Russia counter-intelligence probe was based upon a report to U.S. intelligence made by MI6 that they had been informed by an Aussie diplomat that George Papadopoulos, one of the informal foreign policy advisors to then candidate Donald Trump, had made known that he was aware that the campaign were aware of, had, or had access to, Clinton or DNC emails hacked by Russia from their servers. Popadopoulos later was charged with lying to the FBI about this and did 14 days in prison. Papadopoulos now claims to be innocent of any wrong doing.
Later, Flynn was questioned by the FBI at the White House about his contacts with, the nature of and extent, and contents of conversations with Russian officials and individuals during and after the campaign. To whatever degree the issues of the FISA abuses may have played any role in Flynn being questioned about Russia and possible ties to the Trump campaign or White House, there were over one hundred other reasons such a conversation would have taken place anyway.
Everyone in Trump land denied any and all contacts with Russians before, during and after the campaign. These statements were all lies. There were, in fact, over 100 contacts made between various persons in the Trump campaign, Trump transition and Trump White House with Russians which showed the written declarations filed by each of the questioned individuals were false and possibly the declarants had committed perjury or other crimes. There were also numerous Foreign Agent Registration Act (FARA) violations documented against persons in Trump-world, including Flynn. Trump had openly solicited Russian assistance for his campaign and had forced a change in the RNC platform away from the RNC open support of the provision of lethal aid to Ukraine in efforts to combat illegal Russian aggression to non-lethal aid. Later Trump would be impeached for illegally withholding such aid.
Flynn had the role of a senior policy advisor and surrogate during the campaign and transition and was Trump’s NSC chief. Trump fired Flynn for lying to Vice President Pence. Flynn was apparently acting as a paid agent for the Turkish government at the same time he was on the NSC and failed to disclose such activity. Surveillance had nothing to do with Flynn’s independent criminal conduct for FARA violations for which he was not prosecuted as part of his plea bargain.
The FBI questioned Flynn as part of their investigation. Reagardless of predicates, Flynn’s roles in the campaign, transition and adminstration would make him a person of interest to be questioned as part of the Russia probe. The questioning took place in an informal setting at the White House. Flynn worked in the White House at the time and there were more than likely over a dozen attorneys nearby, including from the Office of White House Counsel, at the time Flynn was questioned. At no time was Flynn in custody or under arrest during his interview with the FBI for which he was later prosecuted. A non-custodial questioning by law enforcement does not require the individual being questioned to be advised of their rights pursuant to Miranda. Flynn was free to stop, request one of the dozens of attorneys in the building or to simply tell the truth. A review of the later transcribed interview notes as reported in the press, showed that the agents gave Flynn several chances to change his answers and that Flynn declined those opportunities and let the false answers remain. Apparently, the FBI had tapes of conversations between Flynn and Russians in their possession at the time of the interview. Domestic telephone conversations with and between Russian diplomatic individuals would likely normally be something the U.S. government would intercept and record even without a FISA warrant application involving Carter Page or anything about Page.
I have practiced criminal law for over 30 years and what law enforcement gets to do in questioning people is simply rude. The basic rule is that if you are free to go and unrestrained, you are not in custody and may be questioned without Miranda. Whatever you say “can and will be used against you in a court of law.” But, the LEOs can even lie repeatedly to get information from you and the courts say that’s OK. One of my later clients was questioned on his front step in Illinois by St. Louis County detectives and his statements approved for use against him by Missouri courts. The best thing is to simply refuse to answer questions from LEOs and ask for counsel. If the FBI is there to talk with you, it’s not good and prudence would dictate you abstain from answering without counsel and maybe later request written questions to be responded to in writing after advice of counsel. That’s what Trump did in the Russia probe. Missouri has this despicable rule that even if you request counsel and refuse to answer that may be used against you if the facts of the offense for which you are under interrogation would normally elicit an immediate denial or some arbitrarily court decided appropriate spontaneous response.
Trump fired Flynn for lying. The U.S. Attorney’s office charged Flynn, in part, with lying to the FBI. Flynn later pleaded guilty to one count of Lying to the FBI, and admitted to his criminal conduct in his written plea agreement by his signature, under penalty of law. The plea agreement kept the government from prosecuting Flynn for admitted FARA law violations for working for the Turks while still a government employee. Flynn would have been asked repeatedly while under oath, during his actual plea and request for allocution if he were pleading guilty to a specific offense based upon a specific set of facts set out on the record as part of Flynn’s change of plea from “not guilty” to “guilty.” Flynn would have been asked if he had any threats or promises made to him, other than the plea bargain, to get him to plead guilty to which he had to have replied “no,” and to admit, again, he was pleading guilty because he was in fact guilty of the offense charged.
Flynn would later admit several times under oath he was guilty of the crime charged when his sentencing hearing blew up. Flynn was asked repeatedly if he wished to withdraw his prior plea of guilty. Numerous times Flynn told the Court he was guilty, did not wish to withdraw his plea and wished to proceed. The court deferred sentencing. Later Flynn hired other counsel which threw the kitchen, not just the sink, at the FBI, USA and the Court, to either dismiss the charges due to “prosecutorial misconduct” or to allow Flynn to withdraw his guilty plea. Eventually, a new USA for DC was hired, an outside USA examined all “Russia related files” and Barr dismissed the charges against Flynn, with leave of court requested.. Judge Sullivan has yet to rule on the government’s request.
Mr. Hogan,
The history of the affair begins much earlier than the non-custodial FBI interview. US intelligence was pressured to deliver analyses supporting the narrative represented by the “JV Team” analogy: ISIS was an irrelevancy and US strategy was having an unbroken series of successes. Heads of every US intelligence organization were in lockstep save one: Michael Flynn, Commanding General of the Defense Intelligence Agency. Reports were simply too consistent, and there were no outliers. Assessments all shared common language and phraseology. Flynn refused to sign on. I would have as well.
Instead, he went around the analysts to the actual collectors and learned that their reports either supported the desired narrative or were suppressed. Moving up the chain he documented the influencers’ activities and results, and refused to concur that ISIS was an irrelevancy. He was fired, which was the President’s right. When the JV team showed up for the Final Four, professional intelligence officers began asking inconvenient questions.
I’m not going to take your opening argument point by point. I do not know what Flynn lied about to the Vice President, but as he admitted it, his firing was justified. The FBI Agents who initially interviewed him did not believe he had lied and said so. McCabe and then Comey intervened to prevent the investigation from being closed. Flynn knew that the government had recordings of his conversations with the Russians and that lying about them would serve no purpose. You seem to have missed the part where Flynn’s son was threatened with incarceration if he did not plead guilty. Every t. rial attorney I know will try to get his client’s confession disallowed as coercion. Perhaps your experience is different.
The entire shameful series of episodes established precedents very dangerous to civil liberties. Falsifying evidence is now acceptable because Trump. Perjury is acceptable because Trump. Failure to disclose potentially exculpatory evidence, Brady violation, is acceptable because Trump. Falsifying a predicate for an investigation is acceptable because Trump. I opposed Trump well before it became fashionable. Still, legal precedent is a powerful thing.
It matters not whether Flynn was guilty; it certainly did not matter to the coup plotters. He was treated shabbily at best. Defending FBI Agents’ actions as meeting the minimum possible acceptable standards is unbecoming, certainly when trying to reverse the outcome of an election. As for investigators lying, I did it every day for 25 years. I even used a false name when working under cover. Horrors.
I’ve testified under oath at more national security legal proceedings than everyone you know, combined. I refused to cut corners, ever. I’d have fired the team that both prosecuted and persecuted Flynn. Not because I support either Flynn or Trump. Because I support the Bill of Rights.