Michael Flynn and the FBI

Gary Fouse

The headline of today is that the Justice Department has moved to formally drop the case against Michael Flynn for lying to FBI agents. This is long overdue.

The judge overseeing the case still has to put the lid on it by dismissing the charges, which should be a formality. That should have been done even before the DOJ dropped the charges. The revelations this week regarding FBI notes discussing how they should interview Flynn and to what objective ended any doubt that the FBI had acted in an unethical manner.

I take no pleasure in writing this as a former federal agent (DEA). But I feel in my heart what those agents did to Flynn was against the very spirit of the law under our democratic system of justice.

During my own career I had several occasions to interview people who were targets of an investigation, usually after arrest, but occasionally prior to actually being charged. In most cases (unless they exercised their right to a lawyer etc.), they told me lies. Sometimes I knew at the time they were lies. I was later able to testify in court that they had lied and present the evidence that contradicted their statements. To me, it was just another element of proof that they were guilty of the underlying drug offense. However, I never charged anyone for lying to a federal agent (18 USC 1001), and I never conducted an interview with that end in mind. I never went into an interview with the aim of getting somebody fired from a job. And similarly, I never went back after I submitted a report favorable to the suspect and in effect, changed that report to the suspect's detriment.

On that latter point, let me explain the proper procedure. We are human and sometimes investigative reports are written and submitted that later turn out to have factual errors in them. In that case, the agent who wrote the original report has an obligation to write a follow up report to the case file pointing out the error and correcting it. You don't make the original report disappear.

Once the agent signs a report, it is reviewed and signed by that agent's immediate supervisor. From there it is distributed to the relevant parties. Who are the relevant parties? Those would be other field offices involved in the investigation as well as the relevant headquarters sections. Naturally, a copy goes into the case file(s). Those reports, in the event of eventual prosecution, are legally available to the defense attorney. It is called the Law of Discovery or the Brady Act. (There are some exceptions if the material is not deemed relevant to the actual prosecution, but in Flynn's case, the original report made after the interview, which reportedly indicated that  Flynn was being truthful, should have been turned over to his defense council under Discovery-especially if it was exculpatory. Instead, what they (and the public) got was drips and drops over a three-year period.

The treatment of Flynn is much like the treatment of Carter Page, who was subjected to electronic monitoring based on a fraudulent dossier prepared by a former British intelligence agent  hired by entities who ultimately  were paid by the Hillary Clinton campaign and the DNC. The FBI knew the dossier was highly suspect, yet included it in affidavits to the FISA court to conduct electronic surveillance on Page, a man who has never been charged with anything. James Comey himself signed off on three of the affidavits himself. And here is Comey crying about today's action and telling DOJ officials to stay and fight back. Fight back against what-bringing corrupt agents to justice?

James Comey, Rod Rosenstein, Bruce Ohr, Peter Strzok, Andrew McCabe, Lisa Page and others violated the civil rights of people in the Trump camp because they wanted to influence the outcome of an election and continued to do so even after the election and after the inauguration to bring down a duly-elected president-all based on a lie. The lie was that Trump and people in his campaign were complicit in Russian efforts to meddle in our election.

I don't condemn the rank and file agents, but the FBI suffered from a rot at the top, a feeling of superiority that led them to think they could white wash the Clinton email case-which they did- and then submarine Trump. This attitude of superiority goes deep back in history-all the way to J Edgar Hoover. He was the man who built the FBI into the law enforcement agency none other could match in turns of resources and sophistication. He also made it into an agency that at times was above the law. Several directors since Hoover's death have tried to reform the agency-with mixed results.

Like your average DEA agent, I was not a fan of the FBI. Yet I ended my career with DEA as a trainer at the FBI Academy, a great experience. In the war on Islamic terror, I have been a solid supporter of the FBI and the terror strikes they have thwarted. As I stated, this present corruption was at the top and should not be considered as something most field agents would do. Indeed, it seems that the operations aimed at Carter Page and Michael Flynn were not carried out by field agents at the Washington Field Office-rather by high level supervisors at Hqs. That itself should have raised red flags.

James Comey, in spite of all his moral posturing, brought disgrace to the FBI. He himself was part of the cabal aimed against both Flynn and Page.

And about the current director, Christopher Wray? True, the scandal took place before his watch, but he has an obligation to help clean up the filth. If he is not, if he is merely trying to withhold information that would damage the agency-then he too should be fired.

Meanwhile, DOJ must continue the investigation into possible criminal wrongdoing by government officials. If indictments are warranted, let them come.

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