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National security lawyer blows apart key Justice Dept argument in dismissing Mike Flynn's charges
Published 16 mins ago on May 13, 2020By Travis Gettys
A former national security prosecutor blew apart the Justice Departments reasoning for dismissing the case against Michael Flynn.
Flynn, a retired U.S. Army general and President Donald Trumps first national security adviser, pleaded guilty to lying to FBI agents, and former U.S. Attorney Barbara McQuade wrote a column for Lawfare unraveling the Department of Justices claim that the investigation was not properly predicated.
Key to the Justice Departments argument in its motion to dismiss is the fact that, after four months of investigation without finding any derogatory information, the FBI was prepared to close its case on Flynn, McQuade wrote. A draft internal FBI document dated Jan. 4, 2017, shows that the bureau had sketched out a memo closing the probe, though the document includes the usual caveat that if new information were identified, the FBI would consider reopening the investigation.
New information turned up a short time after, when the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016.
A former national security prosecutor blew apart the Justice Departments reasoning for dismissing the case against Michael Flynn.
Flynn, a retired U.S. Army general and President Donald Trumps first national security adviser, pleaded guilty to lying to FBI agents, and former U.S. Attorney Barbara McQuade wrote a column for Lawfare unraveling the Department of Justices claim that the investigation was not properly predicated.
Key to the Justice Departments argument in its motion to dismiss is the fact that, after four months of investigation without finding any derogatory information, the FBI was prepared to close its case on Flynn, McQuade wrote. A draft internal FBI document dated Jan. 4, 2017, shows that the bureau had sketched out a memo closing the probe, though the document includes the usual caveat that if new information were identified, the FBI would consider reopening the investigation.
New information turned up a short time after, when the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016.
According to the Justice Departments motion, the FBI had transcripts of the relevant calls, likely obtained through surveillance of Kislyak authorized by the Foreign Intelligence Surveillance Court, McQuade wrote. By this time, Flynn had been named as Trumps national security adviser.
More:
https://www.rawstory.com/2020/05/national-security-lawyer-blows-apart-key-justice-dept-argument-in-dismissing-mike-flynns-charges/
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National security lawyer blows apart key Justice Dept argument in dismissing Mike Flynn's charges (Original Post)
Judi Lynn
May 2020
OP
I didn't mean to be critical, but I find Raw Story kind of annoying.
The Velveteen Ocelot
May 2020
#8
You did the right thing. RawStory doesn't often add much, unlike the real RS (Rolling Stone). . . nt
Bernardo de La Paz
May 2020
#9
SheltieLover
(57,073 posts)1. K&R!
IllinoisBirdWatcher
(2,315 posts)2. K & R
The Velveteen Ocelot
(115,280 posts)3. To skip Raw Story's clickbait, go right to the article -
https://www.lawfareblog.com/why-flynn-interview-was-predicated
But before the case was actually closed, the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016. According to the Justice Departments motion, the FBI had transcripts of the relevant calls, likely obtained through surveillance of Kislyak authorized by the Foreign Intelligence Surveillance Court. By this time, Flynn had been named as Trumps national security adviser.
In those calls, Flynn had asked Russia not to retaliate for sanctions imposed by the Obama administration as punishment for election interference. Flynn had also asked Russia to vote against a United Nations resolution regarding Israeli settlements. On their face, these calls potentially undermined the foreign policy of the United States. Whats more, on Jan. 15, 2017, Mike Pence, then the vice president-elect, made public statements that contradicted the transcripts of Flynns calls a fact that, as documented in the Mueller report, alarmed senior DOJ [Department of Justice] officials. And so, the FBI decided to keep the investigation open. FBI agents interviewed Flynn on Jan. 24, four days after Trump took office. During that interview, Flynn falsely denied his statements regarding sanctions and the U.N. vote. He later pleaded guilty to one count of false statements for telling these lies.
The Justice Department now insists that the Kislyak call did not establish adequate predication for the FBI to conduct this interview. But there was no need for new predication for the interviewbecause predication had already been established. The case was still open after having been properly predicated, as found by the inspector general. Conducting an interview would have been a perfectly appropriate investigative step even if the FBI had not come across any new information. Interviews are frequently conducted at the end of a case to fill in gaps in evidence, explain events, assess a potential threat or satisfy agents that they have not missed any important facts. In the investigation of Hillary Clintons emails, for example, Clintons FBI interview was the last step in the investigation before it was closedand then reopened months later.
But even if new predication were somehow required, the content of Flynns calls, along with his apparent lies to Pence, provided a sufficient factual basis for further inquiry. The Justice Department motion argues that predication was lacking because the only potential crime at issue was the Logan Act, forbidding private citizens to negotiate with foreign governmentswhich has rarely been invoked, and which the Justice Department acknowledged at the time of the Flynn investigation would be difficult to prosecute. But this focus on the Logan Act completely ignores the counterintelligence purpose of the investigation, which was to determine whether Flynn posed a national security threat. By lying to Pence about facts known to Russia, Flynn had compromised himself as national security adviser. Flynn, who had access to the nations most sensitive secrets, was now susceptible to blackmail by a hostile foreign adversary. Surely this constitutes an articulable factual basis for the investigation that reasonably indicates a threat to the national security.
In those calls, Flynn had asked Russia not to retaliate for sanctions imposed by the Obama administration as punishment for election interference. Flynn had also asked Russia to vote against a United Nations resolution regarding Israeli settlements. On their face, these calls potentially undermined the foreign policy of the United States. Whats more, on Jan. 15, 2017, Mike Pence, then the vice president-elect, made public statements that contradicted the transcripts of Flynns calls a fact that, as documented in the Mueller report, alarmed senior DOJ [Department of Justice] officials. And so, the FBI decided to keep the investigation open. FBI agents interviewed Flynn on Jan. 24, four days after Trump took office. During that interview, Flynn falsely denied his statements regarding sanctions and the U.N. vote. He later pleaded guilty to one count of false statements for telling these lies.
The Justice Department now insists that the Kislyak call did not establish adequate predication for the FBI to conduct this interview. But there was no need for new predication for the interviewbecause predication had already been established. The case was still open after having been properly predicated, as found by the inspector general. Conducting an interview would have been a perfectly appropriate investigative step even if the FBI had not come across any new information. Interviews are frequently conducted at the end of a case to fill in gaps in evidence, explain events, assess a potential threat or satisfy agents that they have not missed any important facts. In the investigation of Hillary Clintons emails, for example, Clintons FBI interview was the last step in the investigation before it was closedand then reopened months later.
But even if new predication were somehow required, the content of Flynns calls, along with his apparent lies to Pence, provided a sufficient factual basis for further inquiry. The Justice Department motion argues that predication was lacking because the only potential crime at issue was the Logan Act, forbidding private citizens to negotiate with foreign governmentswhich has rarely been invoked, and which the Justice Department acknowledged at the time of the Flynn investigation would be difficult to prosecute. But this focus on the Logan Act completely ignores the counterintelligence purpose of the investigation, which was to determine whether Flynn posed a national security threat. By lying to Pence about facts known to Russia, Flynn had compromised himself as national security adviser. Flynn, who had access to the nations most sensitive secrets, was now susceptible to blackmail by a hostile foreign adversary. Surely this constitutes an articulable factual basis for the investigation that reasonably indicates a threat to the national security.
SeattleVet
(5,468 posts)5. Thank you.
When I post articles, I always try to get to the origin, and not a clickbait consolidator.
Judi Lynn
(160,219 posts)7. Thank you, I missed it. So glad you caught it. Much better. n/t
The Velveteen Ocelot
(115,280 posts)8. I didn't mean to be critical, but I find Raw Story kind of annoying.
So I try to find the source. Sometimes they are useful where there's a firewall but RS is inclined to be annoyingly clicky and tendentious.
Bernardo de La Paz
(48,789 posts)9. You did the right thing. RawStory doesn't often add much, unlike the real RS (Rolling Stone). . . nt
Iliyah
(25,111 posts)4. Can treason barr be . . .
I don't no, charged with perjury. .. and other matters.
Jarqui
(10,110 posts)6. Great write up by Barbara McQuade
Simple. Factual. To the point.
Very hard to refute her position.
Just further exposes Barr as the deceitful scum that he is.
The Judge has to be scratching his head troubled by what is being revealed.