By Tor Ekeland

February 17, 2017

Reports are circulating that the Department of Justice is not going to prosecute former National Security Advisor Michael Flynn for his pre-inauguration conversation with the Russian Ambassador Kislyak and lying to the FBI about it. Assuming these reports are true, it is a potentially disturbing development that may-depending on the facts-indicate the Department of Justice’s approach to the law is tainted by favoritism and bias. The American People have a right to know what, if any decision, was made in regards to prosecuting Flynn, by whom it was made, and what facts underlie that decision. That disclosure is essential to the right of the People to know that their government is administering the law in a fair, unbiased way. Given the readily apparent conflicts of interest of former Trump Campaign Adviser, now Attorney General, Jeff Beauregard Sessions has in relation to any decision to prosecute Flynn, this issue becomes even more acute.

Let’s begin with what we know and don’t know. On Monday, February 13, 2017, President Trump’s National Security Advisor Flynn resigned after allegations surfaced that he discussed dropping sanctions against Russia in a pre-inauguration phone call on December 29, 2016. If true, Flynn may have violated the Logan Act, a vaguely worded federal law dating back to 1799. Essentially, the Logan Act prohibits private citizens from communicating with a foreign government on issues of U.S. foreign policy with the intent to influence that foreign government’s position. See 18 U.S.C. § 953. Violation of the Logan Act is a felony punishable by up to three years in jail. Despite numerous threats over the last 219 years, no one has been convicted under the law and the United States Attorney has indicted only one person under it in 1803, a prosecution that was eventually abandoned. Nonetheless, Congress never repealed the law, and Flynn may have violated it if he did discuss the issue of sanctions with the Russians. Violation of this vague and obscure, never fully prosecuted law, however, is not as serious as Flynn’s potential violation of a law that is prosecuted all the time – obstruction of justice.

Obstruction of Justice

It is a felony punishable by up to 5 years in jail to lie to an FBI Agent. See 18 U.S.C. 1001(a)(2). According to published reports, when Flynn was interviewed by the FBI he told them he had not discussed sanctions with the Russian Ambassador. When the FBI pressed him, he claimed he did not remember. According to the published reports about the transcript of his phone call with the Russian Ambassador, Flynn discussed sanctions, so his initial answer to the FBI was demonstrably false. It may not have been a knowing lie, punishable as a felony, if he honestly did not remember. But his statement that he did not remember could have been a lie. It remains a legitimate question whether someone would forget that they discussed sanctions with the Russian Ambassador on the same day the Obama administration imposed sanctions on Russia for hacking the U.S. election. A jury could certainly find Flynn guilty beyond a reasonable doubt under this fact pattern if they did not find him credible.

The public needs to see the evidence the FBI has to evaluate whether the decision not to move forward with a prosecution is a rational one or one tainted by bias. There is already sufficient indication of bias. An FBI agent has allegedly called the FBI “Trumpland,” and there are credible allegations that the FBI actively sought to influence the Presidential election. There are legitimate reasons to doubt the FBI’s credibility on this front, and public disclosure is the only way for the public to evaluate their credibility.

The evidence in question is simple and there is no apparent national security reason to withhold it from the public. The FBI always writes reports of its interviews (though under a policy started by Hoover it rarely records them) and the FBI should make Flynn’s interview report public. Likewise, with the transcript of the phone call. Everyone knows it was recorded, there is no danger to national security there. If national security is somehow implicated, either in the FBI report or the telephone transcript, then there is a whole other story that the public is not being told and a whole host of new questions to be asked. Barring this, the FBI report and the phone transcript should be released so the People can judge whether the Department of Justice is acting fairly and without bias in its prosecutorial decisions, or is acting to protect the President from potential bad press or at worst criminal prosecution.

A prosecution of Flynn would raise a host of thorny issues for the President and thus any decision to not prosecute warrants close scrutiny. It is standard procedure in any federal criminal prosecution to discuss a plea agreement with the government. Quite often pleas involve something called a “reverse proffer,” where a defendant tells the government what they know (under an agreement that essentially guarantees the reverse proffer can’t be used as evidence in court). Often a reverse proffer involves implicating others in your criminal activity, and a defendant does so in hopes of getting a more lenient sentence or plea agreement. This could lead to evidence leading to a criminal prosecution of the President. Or a conspiracy charge, or an aiding and abetting charge, against the President. Likewise, if the matter went to trial, testimony damning to the President could come out. In short, there are a whole host of reasons someone biased in favor of the President, as the current Attorney General appears to be, would choose not to prosecute Flynn for obstruction of justice.

If the Department of Justice is choosing not to prosecute Flynn because it is biased, and that is a big if, then the People must question any faith in the Department of Justice’s integrity. The story then becomes a cynical one, where powerful, connected people are let off the hook, and the marginalized or unconnected are subject to the arbitrary whims of the awesome prosecutorial power of the federal government.

The Department of Justice should alleviate any doubts as to its integrity in its exercise of prosecutorial discretion in relation to Michael Flynn and publicly release the FBI report of his interview, the phone transcript of his conversation with the Russian Ambassador, and whatever other evidence it used in making it decision over whether to prosecute, so the People can judge whether justice is being fairly served.