The Mystery of Michael Flynn’s Guilty Plea
He pleaded guilty to a crime FBI agents said he didn’t commit.
One of the stranger moments of Robert Mueller’s special counsel probe is Michael Flynn’s Dec. 1, 2017 guilty plea for lying to the Federal Bureau of Investigation. The former White House national security adviser pleaded guilty to a single count of making false statements, even though then FBI director James Comey had told Congress in March that the two FBI agents who interviewed Mr. Flynn believed he hadn’t lied.
These columns reported this Comey testimony based on sources at the time of Mr. Flynn’s plea (“The Flynn Information,” Dec. 1, 2017). Now comes confirmation from a less redacted version of the House Intelligence Committee’s Russia report released late Friday.
On pages 53-54, the report notes that in March 2017 “Director Comey testified to the Committee that ‘the agents . . . discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.’” The quotes are from the committee transcript of Mr. Comey’s remarks.
The report goes on to say that then Deputy FBI Director Andrew McCabe “confirmed the interviewing agent’s initial impression and stated that the ‘conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview . . . the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.’”
Recall that the inconsistency concerned whether Mr. Flynn had discussed U.S. sanctions against Russia with the Russian ambassador to the U.S. Vice President Mike Pence had said publicly that Mr. Flynn had not discussed sanctions, and once it came to light that he had, Mr. Flynn resigned.
But Mr. McCabe also nonetheless told the House Intelligence Committee that “‘the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.’”
All of this relates to the mystery of why Mr. Flynn pleaded guilty to making false statements. It made little sense for him to lie since as a seasoned intelligence officer he would know the U.S. eavesdrops on the Russian ambassador. He also willingly sat for the FBI interview with no legal counsel, suggesting he felt no risk in doing so.
Certainly the statements about the FBI agent’s impression of Mr. Flynn would not have helped Mr. Mueller’s case at trial had Mr. Flynn not pleaded guilty. The plea deal noted that Mr. Flynn’s sentence would depend on his “assistance in the investigation,” and perhaps Mr. Flynn felt he lacked the money to defend himself in court. He also may have wanted to spare his son, whom Mr. Mueller was also targeting.
In any case it is a dubious practice for a prosecutor to force a cooperating witness to plead guilty to a crime he didn’t commit. Perhaps Mr. Flynn is supplying testimony behind the scenes that puts all of this in a better light, but the facts on the public record to date don’t reflect well on Mr. Mueller’s prosecutorial tactics toward Mr. Flynn.
The House report also reflects poorly on Mr. Comey’s credibility. Despite the transcript of his testimony, Mr. Comey at least three times on his book tour has denied telling Congress that the FBI agents did not think Mr. Flynn was lying. “Did you tell lawmakers that FBI agents didn’t believe former national security adviser Michael Flynn was lying intentionally to investigators?” Fox News’ Bret Baier asked Mr. Comey on April 26.
“No,” Mr. Comey replied, adding that “I didn’t believe that and didn’t say that.” Asked a similar question by NBC’s Chuck Todd, Mr. Comey responded, “Not true. And I don’t know what people heard me say, if they’re reporting it accurately, what they heard me say, they misunderstood. But that’s not accurate.”
Perhaps Mr. Comey’s memory is faulty, as happens with human beings, though then he might commiserate with Mr. Flynn. On the other hand, Mr. Comey has jailed many Americans for false statements to the FBI, with no accommodation for mistakes of memory.
The latest House release also shows again the games that the Department of Justice and FBI are playing with redactions. The FBI has for weeks fought Intelligence Committee requests to declassify this portion of its report, though the only harm from public knowledge is to Mr. Comey’s reputation and to the credibility of Mr. Mueller’s prosecution.
The FBI has a conflict of interest in overseeing redactions given that the behavior of its leaders and agents are in question. This is one more reason for President Trump to use his authority to declassify all of the Russia 2016 files.