Your Guide To The Obama Administration’s Hit On Michael Flynn

1. That the FBI agents who interviewed Flynn did not believe he was lying, including one agent who had previously interviewed the retired general to establish a baseline of Flynn’s demeanor and assess his “norms,” provides strong support for Flynn’s claim that he did not “knowingly and willfully” misrepresent his conversations with the Russian ambassador—the first element the government would need to establish to convict Flynn of violating Section 1001.
2. But the newly released documents now make clear that even if Flynn had “knowingly and willfully” misled the FBI, he still did not violate Section 1001, because his statements to the FBI were not concerning “a material fact.” As the Supreme Court has made clear, to be “material” a “statement must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.’” So to be criminal, Flynn’s purported lies needed to be capable of influencing the FBI.
3. Former Special Counsel Robert Mueller’s team claimed Flynn violated Section 1001 by lying to FBI agents Joe Pientka and Peter Strzok—the latter of whom has since been fired—when the duo questioned Flynn on January 24, 2017, about Flynn’s December 2016 telephone conversations with the Russian ambassador.
4. The public, though, will have to wait some time to learn any more details, as late last week Judge Sullivan entered an order directing Powell not to file any additional supplements on Flynn’s behalf “until the government completes its final production from the review of the United States Attorney for the Eastern District of Missouri.” Sullivan further ordered Jensen to file a notice on the public docket once it has provided Flynn the government’s final production.
5. The details dribbled out over the last two years tell that truth: the strategizing over how to put Flynn at ease; the back-and-forth over the required timing of the 1001 admonition (a warning to a target that lying to FBI agents is a federal offense); the plotting over how to frame that warning without alerting Flynn to the real purpose of their questioning; the FBI’s decision not to show Flynn the transcript of his call with the Russian ambassador, even though, as Priestap’s notes reveal, that would be the regular course of action.
6. How could Flynn’s statements have influenced the FBI, given that the FBI knew exactly what Flynn said to the Russian ambassador before the agents interviewed him? But the law is clear that even if the government agent knows a statement is false, it can nonetheless be material because it could influence an investigation.
7. But as the recently unsealed documents reveal, the FBI knew of those communications and nonetheless decided to close the investigation into Flynn, concluding Flynn “was no longer a viable candidate as part of the larger Crossfire Hurricane umbrella case.” That there was an official investigation still open on Flynn had nothing to do with there being a legitimate investigative purpose for questioning Flynn.
8. The unsealing last week of a series of documents in the Michael Flynn criminal case cemented the reality that a small cadre of high-level FBI agents set a perjury trap for President Trump’s then-national security advisor.
9. (It also provides an independent basis for a plea withdrawal, although outright dismissal is a more appropriate remedy to respond to the outrageous prosecutorial misconduct.) That coercion explains why Flynn would have pleaded guilty to lying when he did not knowingly misrepresent his conversation with the Russian ambassador to the FBI agents.

https://thefederalist.com/2020/05/04/your-guide-to-the-obama-administrations-hit-on-michael-flynn/