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December 14, 2018

The Wall Street Journal Is Wrong on Flynn

Mr. Honig is a former federal and state prosecutor.  

On Thursday, the Wall Street Journal ran an editorial entitled “The Flynn Entrapment.” In it, the Journal—picking up on arguments made by attorneys for former national security advisor Michael Flynn in his sentencing memo—limply casts Flynn as the victim of an FBI set-up. The Journal distorts the facts, ignores the law, and disregards common sense in its apparent effort to turn Flynn into a popular cause for anti-government conspiracy theorists.

The most remarkable thing about the Journal editorial is what it omits: any mention of the actual lie that Flynn told the FBI. So, as a reminder, here it is: in December 2016 (during the presidential transition), Flynn told Russian Ambassador Sergey Kislyak that Russia should not escalate tensions after then-President Obama imposed sanctions on Russia for interfering in the 2016 presidential election. Flynn—who was about to become President Donald Trump’s first national security advisor—essentially gave Russia the old wink-and-nod: “Hey Russia, stay cool, don’t fire back because we’ll take care of you when we take over in a few weeks.” Then, when the FBI asked Flynn about this conversation—which carried global political and economic implications—he lied about it. He also lied about it to Vice President Mike Pence and Sean Spicer, then the spokesman for the Trump transition. No mention whatsoever in the Journal article of those small facts.

The closest the Journal gets to even brushing by the actual crime that Flynn committed is this laughable spin to the benign: “Flynn had done nothing wrong in conversing with the Russian ambassador—it was part of his job.” That’s like arguing that Bernie Madoff did nothing wrong when he spoke with his clients—it was part of his job.         

The Journal raises three particular complaints about the FBI’s questioning of Flynn, none of which stands up to scrutiny.  

First, the Journal contends that the FBI should have warned Flynn not to lie. This is garbage. There is no legal obligation for the FBI to warn subjects not to lie. Of all people on the planet, Flynn—a decorated military veteran, an elite intelligence officer, and the incoming national security advisor—should have known best how important it is to be truthful when questioned by federal investigators about sensitive matters of international relations.        

Second, the Journal laments that the FBI “urged Mr. Flynn to meet without a lawyer present.” The Journal promptly undercuts its own characterization by noting that the FBI raised the possibility of including White House counsel and possibly the Department of Justice in the interview. Flynn—again, no dummy—declined. In any event, the law is clear: Flynn had no right to have counsel present (though he certainly could have chosen to do so) and the FBI had zero obligation to urge Flynn to retain counsel.       

Third, the Journal editorial, citing an FBI internal report, laments that, when Flynn started lying, the FBI did not “confront him or talk him through it.” So the FBI didn’t gently spoon feed Flynn the truth so he could safely parrot it back to them. The Journal proceeds to answer its own concern in the very next sentence: “Keep in mind the FBI’s counterintelligence probe into Russia and the Trump campaign was still secret.” That’s the whole point. The FBI didn’t tell Flynn, “Hang on, you’re saying one thing but we know something else is true because we are doing a top secret investigation of an ongoing threat you are involved in.” To reveal details of the investigation to Flynn on a rolling basis—to “talk him through it”—would taint Flynn as a witness by exposing him to facts that he likely would not otherwise know. And to disclose the details of a confidential investigation to a witness is to jeopardize the entire investigation. Besides, there is reporting that suggests Flynn already knew the FBI was investigating his conversation with Kislyak.

The Journal plucks at every available violin string in a quest to sound some note of sympathy for its subject, asserting that Flynn pled guilty “to avoid bankruptcy and spare his son from becoming a legal target.” Perhaps, but Flynn also pled guilty for a more fundamental reason—because he is guilty, as he himself testified before a federal judge, under oath, during his guilty plea proceeding. Don’t trot out the children and the bankbook as props when Flynn himself is the cause of his own demise.  

Flynn is unlikely to get any jail time when he is sentenced on Tuesday. He was convicted of one offense carrying the lowest available sentencing recommendation of zero to six months behind bars, and special counsel Robert Mueller submitted a glowing sentencing letter touting the value of Flynn’s cooperation. Nonetheless, Flynn undoubtedly has suffered. He has lost his career, tarnished his own prior heroic military service, and destroyed much of his reputation. There is plenty of tragedy to go around. But the Journal takes it too far when they try to make him into a martyr. 

Elie Honig served as an Assistant U.S. Attorney in the Southern District of New York for 8.5 years and as the Director of the Division of Criminal Justice at the Office of Attorney General for the State of New Jersey for 5.5 years.  He is currently a legal Analyst for CNN and Executive Director at Rutgers Institute for Secure Communities