The FBI interviewed Flynn in January 2017 as part of its investigation into Russian interference with the 2016 presidential election and possible Russian contacts with the Trump campaign — an investigation that the Justice Department inspector general later determined was proper. The newly released documents reflect agents discussing interview tactics, including what they should do if Flynn lies to them. In one excerpt, an agent wrote, “What is our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?” The context of the notes, and whether they reflect a conversation or just personal musings, is not clear.
The claim that Flynn was “set up” assumes there was no legitimate reason for his interview, that it was all just a trap. That’s plainly not true. Flynn was a critical witness in a highly sensitive investigation. The FBI knew he had at least some contacts with the Russian ambassador while working for Trump. Even though agents had a recording of a call between Flynn and the ambassador, an interview was essential to ask the many follow-up questions, such as: Who asked you to make the call? What was done as a result of the call? Were there other calls or meetings? It would have been investigative malpractice for the FBI not to interview Flynn. Isolated, cryptic notes about interview strategy don’t change that fact.
More important, it’s almost impossible for an interview like this to amount to a “set up,” because Flynn was entirely in control of his own fate. Any witness interviewed by the FBI has essentially three choices: tell the truth, lie or assert the right to remain silent. The FBI had no way of knowing which option Flynn would choose when he walked into the interview. All Flynn had to do was tell the truth, or tell the agents he wasn’t comfortable talking to them. He chose instead to lie.
This could not constitute Flynn being “framed.” That suggests he was accused of a crime he did not commit. But no one really denies that Flynn lied to the agents during the interview — as Flynn himself has admitted repeatedly in open court. You can’t frame the guilty.
Nor is there any basis for a claim that Flynn was “entrapped.” Entrapment requires evidence that the government so pressured the defendant that his will was overborne and he committed a crime he was not otherwise predisposed to commit. Flynn was a military leader who rose to the rank of lieutenant general, led troops in combat and became national security adviser. The idea that he was so intimidated by a couple of FBI agents during a consensual interview that he simply had no choice but to lie is laughable.
And this was not Flynn’s only lie. He also lied to others in the administration, including Vice President Pence, about his Russian contacts — which even Trump himself has acknowledged. Additionally, as part of his guilty plea, Flynn admitted to repeatedly lying to the Justice Department about his work as an agent for the government of Turkey — work that he continued, and concealed, while he was working for Trump. Part of his plea deal was that prosecutors would not pursue those charges. Those lies had nothing to do with any FBI interview.
It’s true that agents and prosecutors in the investigation by special counsel Robert S. Mueller III later used Flynn’s lies to persuade him to plead guilty and cooperate in that investigation. But anyone who is surprised by that has no idea how law enforcement works. That is criminal investigations 101 — commonplace and essential in large, complex cases. Any witness who lies to the FBI runs the risk of facing such tactics.
In a leading Supreme Court case about the crime to which Flynn pleaded guilty, Justice Antonin Scalia wrote: “Whether or not the predicament of the wrongdoer run to ground tugs at the heartstrings, neither the text nor the spirit of the Fifth Amendment confers a privilege to lie.” I know irony is essentially dead these days, but it’s pretty rich to see all the conservatives who apparently have discovered a newfound concern for the rights of those who choose to lie to federal investigators.
Flynn is a lot like Trump in at least one respect: He’s good at deflecting the focus from his own misconduct to paint himself as the true victim. These latest revelations may help lay the groundwork for Trump to pardon Flynn for being treated so “unfairly.” And they allow Trump and his supporters to change the subject and focus again on alleged “deep state” conspiracies against Trump rather than the administration’s dismal response to the novel coronavirus. But they provide no legal basis for allowing Flynn to withdraw his plea or dismissing the case.