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Trump Was Right to Pardon Michael Flynn

·5 min read

(Bloomberg Opinion) -- Anyone questioning the merits of President Donald Trump’s decision to pardon Michael Flynn should read the Justice Department’s summary of its interview with FBI agent William Barnett on Sept. 17, 2020.

Barnett, who was the bureau’s case agent on the Flynn investigation, was interviewed as part of U.S. Attorney Jeffrey Jensen’s review of that probe. In May, the Justice Department dropped its prosecution of Flynn for making false statements to the FBI regarding his conversations with Russia’s ambassador to the U.S. during the presidential transition in 2016. U.S. District Judge Emmet Sullivan, who is overseeing that case, has taken the unusual position of not allowing the prosecution to drop its case, leaving Flynn in legal limbo for the last six months.

What the interview makes clear is that Barnett was persuaded that Flynn did not collude or conspire with Russia during the 2016 campaign. Barnett wanted to drop the case in December of that year. But his efforts were stymied, first by the FBI’s leadership and later by the office of Special Counsel Robert Mueller.

Barnett’s interview is not the only piece of recently disclosed evidence that casts serious doubt on the bureau’s conduct in the Flynn affair, but it is the most compelling. Barnett says he became so frustrated that he sought to be transferred from the case. He also said he believed he was left out of important meetings about the case and was deliberately excluded from the FBI’s interview of Flynn on Jan. 24, 2017.

The story that former FBI Director James Comey and his allies tell about the Flynn investigation is that in December 2016, they did seek to drop the investigation. But after discovering that Flynn had urged Russia’s ambassador to Washington not to escalate in response to the Obama administration’s decision to expel 35 Russian spies and impose largely symbolic sanctions on Russian intelligence services, they kept the case open.

Then, when Comey sent two FBI agents to interview him, Flynn did not acknowledge that he told the Russian ambassador not to escalate or that he discussed sanctions. And while the agents concluded that Flynn had not knowingly lied to them, the inconsistency between Flynn’s interview and the transcript of his phone conversations was enough to keep the probe open.

Eventually, Flynn pleaded guilty to making false statements in that interview. In January 2020, however, he petitioned the court to revoke his guilty plea.

Barnett provided a second opinion on Comey’s narrative. His interview summary says that after reviewing the transcripts of Flynn’s conversation, he did not “see what the significant issue or ‘rub’ was.” It says the transcript of Flynn’s phone calls did not change Barnett’s view that Flynn “was not compromised by the Russians.”

This is not surprising. In June the Trump administration released the classified transcripts of Flynn’s phone calls with the Russian ambassador. They show that Flynn’s behavior was in keeping with the duties of an incoming national security adviser, who is expected to contact foreign diplomats and leaders during the presidential transition. Most of the conversation was about exploring possible cooperation between the U.S. and Russia in the Syrian civil war and Flynn’s firm request for Russia not to escalate its response to outgoing administration’s actions. As the Justice Department’s motion to drop the Flynn prosecution notes, asking an adversary not to escalate tensions supports the U.S. national interest.

There is also good reason to believe the FBI at the time did not think the interview with Flynn was incriminating. The bureau, according to the interview summary, briefed the Justice Department on Jan. 30, 2017, that it did not suspect Flynn was a Russian agent.

None of this information was shared with the public or Flynn’s defense counsel until this year. The bureau’s silence did untold damage to Flynn’s reputation. And when the Mueller team took over his case, the initial litigation led to Flynn’s financial ruin.

At the end of the saga, in December 2017, Flynn did plead guilty to making false statements to the FBI. He and his son were threatened with an unrelated violation of the foreign lobbying law for work he had done for Turkey in 2016.

This sounds bad. But it’s worth noting that violations of this law were almost never prosecuted until Mueller’s appointment. He used the threat of criminal prosecution of that law to compel cooperation in his investigation of a Trump-Russia conspiracy that, in the end, he was unable to prove.

It’s tempting, in light of Trump’s failure to accept the results of this year’s presidential election, to wave away the evidence that Flynn was railroaded by the FBI and the Justice Department. Flynn’s own antics at the 2016 Republican convention, when he joined the crowd’s chants calling for the imprisonment of Hillary Clinton, now look ironic: He was the one who could have been locked up.

The FBI should have dropped its investigation into Flynn before Trump took the oath of office. Instead, it kept that investigation open, despite the reservations of the FBI agent leading the investigation. The lesson is simple: Every American deserves the same protections under the law — even those who work for Donald Trump.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Eli Lake is a Bloomberg Opinion columnist covering national security and foreign policy. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.

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