The longing to lock Flynn up: Back in 2016, Donald J. Trump wanted to lock her up.
Michael Flynn wanted to lock her up too. We thought his behavior was stunningly bad, bordering on the half-crazy.
Now we're engaged in a great tribal war. Over Here, on the blue team, we now want to lock Flynn up.
We can't say we agree with that, at least not as Flynn stands charged. For starters, we aren't in favor of locking people up just as a general matter.
That said, Jonathan Chait is hoping to lock Flynn up. Or so it seems to us, reading between the lines:
CHAIT (5/14/20): Gleeson’s appointment [by Judge Emmet Sullivan] does not guarantee Flynn will be sentenced. But it does seem to make that outcome at least very possible: It’s hard to imagine why Sullivan would take such an extraordinary step without giving the judge he appointed real authority. Indeed, Sullivan today raised the prospect Flynn could be charged with contempt of court.Doggone it, that copy seems to say. In the end, we might not be able to lock him up!
In the end, the court can’t win: Trump can simply give Flynn a pardon. But there is a reason Barr maneuvered to prevent such a blunt outcome. He wanted his dirty work cloaked in the patina of legitimacy and vindication. Unfortunately for him, there are still people in the legal system who are unwilling to trash the rule of law.
That copy also assumes the worst about William Barr's possible motives. In that passage, Barr is said to be willing to trash the rule of law. In these thoroughly tribalized times, such ascriptions concerning the others have become the norm Over Here.
Marc Thiessen plays on the red team; Chait plays for us on the blue. That said, Thiessen isn't crazy, crazily stupid or nasty—and in some ways, he seems to agree with something Chait said!
Today, Thiessen discusses the Flynn case in his column for the Washington Post. Like Chait, he believes there are people within the legal system who are willing to sidestep the rules—but look who he says they are:
THIESSEN (5/15/20): The [Justice Department recently] found that there was no legal justification for the FBI to question Flynn in the first place, because the interview was “untethered to, and unjustified by, the FBI’s counterintelligence investigation” of Flynn...In his plea, Flynn “stipulated to the essential element of materiality” without being informed that the FBI had already cleared him in the underlying investigation.Friend, do you know how to rebut those claims (and others)? We're going to guess that you don't.
That fact alone is disgraceful. Even more outrageous is that the bureau interrogated Flynn about communications the Justice Department says were “entirely appropriate.” He was the incoming national security adviser, and his “request that Russia avoid ‘escalating’ tensions in response to U.S. sanctions … was consistent with him advocating for, not against, the interests of the United States.” There was nothing in the calls to suggest he was being “directed and controlled by … the Russian federation.” And the FBI did not need his recollections of the calls because it had word-for-word transcripts.
It seems clear that the purpose of the interview was to set a perjury trap. The agents did not inform the White House counsel before the interview so as to catch Flynn by surprise; they did not share the transcripts with Flynn during the interview (which would have allowed him to refresh his memory); they did not warn him that making false statements would be a crime—all of which are standard procedure. Even so, both of the agents who questioned him came away with the impression that “Flynn was not lying or did not think he was lying.”
For these and other reasons, the Justice Department withdrew the charges against Flynn. The fact that the judge in the case is refusing to accept the department’s decision—and has appointed a former judge to contest it—only perpetuates the FBI’s miscarriage of justice.
The situation is complicated, with a wide range of murky facts. And especially since American news became all Covid-19 all the time, it's hard to find an attempt to sort out the facts which isn't pure blue-or-red tribal.
For ourselves, we're struck by this:
As far as we know, no one thinks there was anything wrong, as a matter of principle, with Flynn speaking to Kislyak during the transition period. Nor has Flynn been charged with doing something illegal during those phone conversations.
He ended up being charged with making false statements to the FBI about what was said in those phone calls. These means that our tribe wants to send him to jail for making false statements about conversations in which he isn't said to have broken any laws.
(If he actually did make false statements, that is. As you can see in the passage from Thiessen, that point seems to be subject to a degree of dispute.)
Why did Flynn make those false statements? We have no idea. For years, it was widely said that his behavior made no sense, since he would of course have known that Kislyak's phone calls all would have been monitored.
For whatever reason, that puzzle doesn't seem to be raised as frequently any more, nor did we ever see anyone resolve it. It's all part of the air of confusion surrounding this heavily tribalized case.
At any rate, do we really want to see this guy go to jail for making those misstatements? Remember, at Flynn's December 2018 sentencing hearing, the prosecution (the Mueller team) wasn't necessarily even seeking prison time. It was Judge Sullivan's peculiar outburst concerning Flynn's possible "treason" and "treasonous" conduct which brought the possibility of prison time to the fore.
As far as we know, Sullivan has never explained his peculiar outburst, which he "clarified" that afternoon. But no sane person has ever suggested that Flynn was somehow committing "treason" by making false statements to a couple of FBI agents, if that's what he actually did.
Nor does anyone care about any of that. Over Here, we just want to lock this guy up.
All in all, this has been a puzzling, peculiar story. The way we're sold it by our blue sachems involves heaps of true belief.
For starters, we're supposed to truly believe that the bad people are all Over There. We're supposed to assume that there is no way the FBI could have misbehaved in the way it handled this matter with Flynn.
Over There, in the red world, people like Thiessen are willing to say that the interview with Flynn was a deliberate "perjury trap." Over Here, we're supposed to think that's totally nuts. More specifically, we're now expected to take a "what, us worry" approach to those recently-released notes from the FBI's Bill Priestap.
Slate's Dahlia Lithwick is part of our blue tribe. Below, you see the way she described Priestap's notes when they recently appeared.
We highlight the most striking part of the Priestap notes. People like Thiessen don't like that note. We don't think our team should either:
LITHWICK (4/30/20): The new information [Republicans] cite is just-released handwritten notes from Bill Priestap, former assistant director of the FBI Counterintelligence Division, suggesting that FBI agents interviewing Flynn in early 2017 should decide between whether to get Flynn “to admit to breaking the Logan Act” when he spoke to then–Russian Ambassador Sergey Kislyak during the presidential transition period, or try to see if he would lie in response to questions about the incident. (Flynn opted for lying.)Priestap's intentions haven't yet been explored to any significant degree. Not does anyone in either tribe actually care about that.
The unsigned, one-page, newly released note indicates that “we have a case on Flynn & Russians.” In a section titled “Afterwards,” it stated, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” The notes add:
"I don’t see how getting someone to admit their wrongdoing is going easy on him … If we get him to admit to breaking the Logan Act, give facts to DOJ & have them decide. Or, if he initially lies, then we present him [redacted] & he admits it, document for DOJ, & let them decide how to address it."
That said, the highlighted note does strike us as deeply unfortunate. It seems to suggest that someone on the FBI team wanted to try to get Flynn to lie so they could get him fired!
Does anyone think that a bunch of Comey hacks should make such outcomes part of their playbook? It may be that Priestap was arguing against that cavalier approach, but it seems fairly clear that someone must have arguing for it.
Meanwhile, does anyone think that Flynn was actually up for a Logan Act violation? Are those notes just the latest example of the Comey Crowd Gone Wild?
Before the coronavirus hit, we spent a couple of years watching the "formal federal prosecutor" crowd on blue tribe cable TV. As the months went by, we were struck by how unimpressive they tended to be—most especially, by how cavalier they seemed to be concerning the use (and misuse) of prosecutorial power.
Forget the nonsense they sold, every night, about the fabulous Robert Mueller, who was going to take Trump down. When the actual Mueller finally appeared, he was nothing like the person they had described—and his probe hadn't gone to the various places they told us it surely would.
Meanwhile, these adepts were routinely quite cavalier about the ways our three million federal laws could be used to lock various targets up. Such thinking may explain the gross misconduct which was directed at the hapless Carter Page—and the prosecutorial misconduct didn't stop there.
On March 31 of this year, Inspector General Michael Horowitz released a remarkable study. News of the study was wiped away by news of a newer virus, but he found that the FBI had engaged in misconduct on every request for a FISA warrant covered in his report!
They hadn't played by the rules even once! If you're blue, you never hear about matters like this. If you're red, you hear about nothing else, and what you hear is embellished.
Dahlia Lithwick is part of the blue tribe legal analyst crowd. She seems like the nicest person on earth, but she also strikes us as one of our less helpful analysts. (See today's dreamscape, in which we're urged to "pathologize America first.")
In this recent interview with Slate's Mary Harris, Lithwick hands you the tribal line concerning the pursuit of Flynn. Concerning the possibilities that Comey and the FBI played fast and loose in their approach, she simply says, at several points: "This is what prosecutors do all the time" / "This happens all the time."
This is what they do all the time! It doesn't seem to have entered her head that that could be the problem!
Did Michael Flynn lie to the FBI? If so, why did he do that?
We can't answer either question. Meanwhile, based upon his behavior during Campaign 2016, we consider Michael Flynn to be almost as crazy as Trump.
That said, no one much wanted to lock him up until Judge Sullivan melted down in that unexplained performance. Today, we're tribally told that Sullivan is "fiercely independent" and "ferociously independent," and that he "doesn't suffer fools."
In short, our team must truly believe in Sullivan, as we now do with Comey.
The Mueller team wasn't looking to get Flynn locked up, nor do we know why he should be. But in these highly tribalized times, none of this actually matters.
On Fox, viewers are told that Flynn was the target of a perjury trap, and that he pled guilty only because the Mueller team was threatening to lock up his son.
Over Here, we're told that he pled guilty twice, full stop. And that we should lock him up or else he'll get off "scot-free."
Our nation is tribalized all the way own. You are being propagandized pretty much wherever you look.