Bret Stephens: Michael Flynn and the presumption of guilt

Of all the low moments in the 2016 Republican presidential convention — there were many — Michael Flynn’s speech ranks high.

“Damn right, exactly right,” the fired, retired three-star general said in answer to audience chants of “lock her up.” “And you know why we’re saying that? We’re saying that because if I, a guy who knows this business, if I did a tenth, a tenth of what (Hillary Clinton) did, I would be in jail today.”

This was said by a man who, as a former head of the Defense Intelligence Agency and top foreign policy adviser to Donald Trump, had already taken $45,000 from the KGB regime in Moscow and would later take $530,000 from the Islamist regime in Ankara as an unregistered foreign agent. If Flynn had been prosecuted, judged and sentenced according to his own moral arithmetic, he’d be behind bars today.

Fortunately, he isn’t because sleazy behavior isn’t the same as criminal conduct.

By now, every thoughtful observer should have learned two things from the experience of the Trump administration.

The first is that few things in politics are as despicable as efforts to use the power of the state to criminalize a political opponent. That’s why Trump’s efforts to bully a foreign ally into digging up dirt on his domestic opponent was so reprehensible. That’s why Trump deserved his impeachment.

The second is that civil liberties matter, never more so than when a government seeks to prosecute the people it dislikes by hiding exculpatory evidence, using deceptive methods, relying on outdated laws or threatening them with financial or familial ruin.

Yet as Bloomberg columnist Eli Lake lays out in painstaking detail in an essay for Commentary magazine, this is what happened to Flynn. This has been obscured by the fact he twice pleaded guilty to a crime he likely did not commit, as part of an investigation into a conspiracy that the Mueller investigation could not prove. It’s obscured because some of the sensational reporting about him that once appeared solid later turned out to be dubious.

And it’s obscured because the administration’s inveterate critics have a hard time conceding that the theory in which they were politically and emotionally invested — that the Trump campaign had colluded with Russia to steal the election — was built on a shaky foundation.

What, after all, is the supposed case against Flynn? There’s the claim that he undermined American interests by urging the Russian ambassador not to expel American diplomats in Russia. But that was a request in the service of American interests, not against them. There’s the argument that the call violated the 1799 Logan Act. But nobody has been convicted under that act and calls between incoming administration officials and foreign diplomats are hardly unprecedented.

There is his alleged lying to FBI agents about his conversation with the Russian ambassador. But the bureau’s record of the interview shows the agents thought Flynn “did not give any indicators of deception,” according to the Justice Department’s motion to dismiss the case. There is the suggestion that Flynn exposed himself to Russian blackmail by supposedly lying to Mike Pence about the call with the ambassador. But as Lake astutely points out, “Perhaps it was Pence who lied, because he was asked a question he found difficult to answer on national television.”

Of course, there is Flynn’s guilty plea. But Flynn — like so many defendants in the U.S. justice system— pleaded guilty to avoid having a different charge, in his case the foreign-registration issue in the Turkish matter, thrown at him and his son. What that has to do with an investigation into Russian meddling in the American election is a question to ponder.

Against all this, consider the behavior of the FBI. In December, the Justice Department’s independent inspector general noted that the bureau repeatedly misled the Foreign Intelligence Surveillance court in its investigation of Russian collusion.

As for Flynn, the FBI discouraged him from having counsel present for the interview. It did not alert him that he was a target of a secret investigation. It withheld the transcript of his call, meaning that any discrepancy between Flynn’s memory and the transcript could be termed a lie rather than simple misremembering. It did not ask him direct questions about his conversations with Pence, though the rationale for the interview was to clear up supposed discrepancies between the record of his call and Pence’s televised comments. It later withheld from his counsel a key memo detailing the FBI’s previous attempts to find evidence that he was a Russian asset, which had come up empty-handed.

What this amounts to, Lake writes, is “not only an injustice against Flynn but an assault on the peaceful transition of presidential power. The FBI’s job is not to entangle the new president’s national-security adviser in a spurious investigation.”

Liberals used to have a healthy distrust of prosecutorial power, just as they had a healthy belief in the presumption of innocence. In the Tara Reade story, they’ve been reminded of the political folly of abandoning the second belief. It may not be long before they learn a similar lesson about the folly of abandoning the first.

Bret Stephens writes a column for the New York Times.


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