Julio Gonzalez, M.D., J.D.
Every once in a while, you come across a set of circumstances that brings you great sadness about our country's state of affairs. (Yes, it may be happening more frequently.) The events surrounding the prosecution of General Michael Flynn and his treatment by the FBI and Special Counselor Robert Mueller is such a situation.
By now, most of you are aware of the circumstances behind General Flynn's accusations, but they nevertheless deserve elucidation. First, General Michael Flynn is a 33-year veteran of the United States Army with an impeccable history of patriotic service to his country. His service specialized on counter-intelligence, and he is likely responsible for the identification, capture, and destruction of more anti-American terrorists than anyone in the history of the United States.
On January 20, 2017, General Flynn assumed the office of National Security Advisor to the President of the United States, President Donald J. Trump. Just prior to taking on that role, on December 29, 2016, General Flynn had contact with Russian Ambassador to the United States Sergei Kislyak. The details of this contact are somewhat sketchy, but suffice it to say that the contact took place.
During this time, the Obama Administration, still reeling from the Democrats' unexpected loss to Donald Trump in the presidential elections was bent on blaming Russian interference for the defeat of the anointed Democrat darling, Hillary Clinton. The shock associated with the defeat led to a zealous effort to identify and understand the extent and machinations of this interference and to discover whether the Trump campaign was in any way involved.
The agency tasked with the investigation of potential Russian meddling was the Federal Bureau of Investigation headed at the time by James Comey. The FBI was very interested in the specifics behind the interactions between General Flynn and the Russian Ambassador because it wanted to know whether there was any evidence of promised benefits to the Russians under the new administration in exchange for Russian assistance in tilting the election in Trump's favor. To be clear, the mere fact that the Russian Ambassador had made contact with General Flynn was not illegal.
For the sake of our discussion, I am going to assume that the Special Counsel Robert Mueller's version of the details regarding the contact between these two men is correct. I am going to grant the Mueller team's assertion that General Flynn had not forgotten about the contact he had with the Kislyak. I am going to assume, as Mueller reports, that by the time the FBI agents contacted him, Flynn was already relating a false narrative regarding his conversation with the Ambassador. I am also going to assume that, as Mueller says, Flynn was given more than ample opportunities to correct the falsehoods he delivered to the inquiring agents on January 24, 2017. I am also going to acknowledge, for the sake of argument, that Flynn was not coerced into admitting that he had lied when he struck a plea deal with the FBI and that he was actually being accurate when he admitted his illegality to them.
But even if those assertions are true, Judge Emmet Sullivan, the judge responsible for sentencing General Flynn on Tuesday and the one who has asked to review any exculpatory evidence in the case, must still throw out the case against General Flynn.
The principal question is whether the FBI induced General Flynn into lying during its interview of January 24, 2017. More directly, did the FBI conduct its interview in such a manner as to induce the general to lie. After reviewing the Mueller memo to the court, my conclusion is that it absolutely, positively did.
In arriving at this conclusion, I first take note that prosecutorial entrapment is absolutely illegal and fatal to the prosecution of a suspect. Entrapment, the act of government agents or officials that induces a person to commit a crime he or she is not previously disposed to commit, is a vile and vicious technique that if allowed to run unabated represents a fundamental threat to our liberties and to our abilities to live our lives in peace and free of government persecution.
Entrapment cannot be tolerated.
Consequently, if the FBI induced the general into committing the crime of lying to the FBI, it would nullify its prosecution of him and force the case to be dismissed.
According to the memo produced by Robert Mueller in defense of his prosecution of Flynn, Mueller admits that the FBI knew prior to its interview that Flynn had made contact with Ambassador Kislyak on December 29, 2016, "the same day the US announced sanctions against Russia for its interference with the 2016 elections. " Moreover, Deputy Director of the FBI Andrew McCabe, the man who contacted Flynn about a potential meeting with FBI investigators, was of the belief that Flynn had already lied to others regarding his contacts with the ambassador and that he was already "committed to that false story." Even so, those deceitful acts of delivering a false narrative on the part of Flynn, whether excusable or not, were not illegal. Despite this, McCabe, in coordination with James Comey made the decision to bypass protocol in seeking the interview with Flynn in the hopes that he would repeat those lies to investigators. In other words, McCabe and Comey built a trap for Flynn.
Additionally, we know from comments made by Comey that when McCabe set up the interview with Flynn, he knowingly bypassed protocol. We also know that Flynn inquired as to whether he should have his attorney present and was dissuaded from doing so by McCabe.
More egregiously, McCabe and Comey purposely decided not to warn Flynn that it was illegal to lie to the FBI. This is an important detail because it is distinguishable from the mere omission of the information, which is how the media generally reports this fact. Instead, according to Mueller's memo to the court, McCabe and Comey made the purposeful decision to conceal the subject's legal peril. The reasons for this purposeful omission was to fool Flynn into being "relaxed," and because "they were concerned that giving the warnings might adversely affect the report." The implications of this admission are fatal to Flynn's successful prosecution since they acknowledge that if the FBI had properly performed its job, Mueller would not have committed the crime of lying to them. Once again, the FBI investigators admit to having entrapped Mueller.
As the Mueller memo states, the overall effect of the FBI's efforts was to make Flynn believe that he was dealing with allies in an investigation, not that he was the subject of one.
With these admissions, Mueller has essentially painted a picture whereby the FBI created an environment by which Flynn would be induced into committing a crime he would not otherwise have committed; the very definition of entrapment.
With this information, it is very likely that, should this have gone to trial, it would have been thrown out because of entrapment of the defendant and due to the FBI's advice to Flynn against obtaining legal counsel. Instead, the case was pleaded out by a defendant who was on the verge of bankruptcy from the mammoth legal defense bills he had incurred and whose son was being threatened with prosecution should he not submit to the FBI's demands.
In conclusion, this story reveals one of the grossest displays of reckless disregard for prosecutorial restraint and for the rights of the defendant imaginable. With any luck, Judge Sullivan will see the brazen unprofessionalism displayed by sleazes McCabe, Comey, and Mueller and bring some semblance of justice to the negatively impacted life of a man who is nothing short of a great American hero.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and served in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.
Julio Gonzalez, M.D., J.D.
Dr. Gonzalez is an orthopedic surgeon and lawyer serving as State Representative for South Sarasota County in Florida. He is the author of The Federalist Pages