Is there an arguable case that the "Russiagate" conspiracy theory-related prosecution of retired US Army Lieutenant General Michael T Flynn, for lying to the Federal Bureau of Investigation on 24 February 2017, was actuated by FBI malice? Or, as the US political commentator Jonathan Chait asserts, does Flynn's worldview demonstrate that he is "definitely insane", and deserves to be likened to Stanley Kubrick's cinematic creation, Brigadier General Jack D Ripper?
Flynn's position is clear enough:
- His dealings with the Russian Ambassador to the US in December 2016 occurred in the normal course of his work as National Security Adviser (NSA) to President-Elect Trump in the presidential transition period. The substance of what passed between Flynn and the Ambassador was an open secret inside the transition team;
- Flynn's 24 January 2017 meeting with FBI officials Peter Strzok and Lisa Page was held out to him as a routine part of the ongoing investigation into alleged Russian Government interference in the 2016 election;
- His resignation as NSA was based on the fact that he had deceived Vice-President Mike Pence about his meetings with the Russian Ambassador;
- He had only agreed with a federal prosecutor in late 2017 to plead guilty to one count of wilfully and knowingly making two materially false statements and omissions in the Strzok/Page interview, and to co-operate with the US government in relation to another prosecution because he had paid a large amount of money in lawyers' fees, and the prosecutor was threatening to drag his son into the imbroglio.
Since late 2019, the main focus of Flynn's case has been the underlying relationship between sentencing judges and the dominant role of the prosecutor in the contemporary US criminal justice system. Almost exclusively, it comprises plea bargaining, negotiated behind closed doors with no judicial oversight, and in which the outcome is largely determined by the prosecutor alone.
Prior to 1970, what one US District Court judge has described as "a genuinely innocent defendant" could still choose to go to trial without fearing that she or he might thereby be subjected to an extremely long prison term effectively dictated by the prosecutor. The transformation was a function of Congressional legislative action establishing mandatory minimum sentences and mandatory sentencing guidelines. This had led to the "virtual extinction of jury trials" and "provid[ed] prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains."
For example, shortly before his 1995 trial, Francois Holloway declined to agree to a proposed plea bargain which would have exposed him to a minimum sentence of about nine years' imprisonment. Upon conviction, Holloway was sentenced to a total of 57 years and 7 months' imprisonment. In 2014, his case was reviewed by Judge John Gleeson of the US District Court for the Eastern District of New York who drew attention to injustices resulting from the misuse of prosecutorial discretion. Judge Gleeson observed that, even in circumstances where there was neither a claim of innocence nor any defect in the conviction or sentence, a prosecutor could do justice by the simple act of going back into court and agreeing that justice should be done.
In his June 2018 report reviewing various actions of the FBI and the DOJ, the Inspector General of the DOJ concluded that, in relation to their meeting with Flynn and contrary to their legal obligations, both Strzok and Page acted with a biased state of mind and, even more seriously, it implied a willingness to take official action adversely affecting presidential candidate Trump's electoral prospects, conduct which was antithetical to the basic values of the FBI and the DOJ.
The following is an outline of the main stages of the Flynn prosecution.
Unbeknown to Flynn when they interviewed him on 24 January 2017, Strzok and Page were soul mates. One of their shared passions was a detestation of Donald J Trump. Among their surviving recorded assessments was that Trump was "a loathsome human" (Page) and an "abysmal idiot" (Strzok). Their shared partisan FBI anxiety is encapsulated in this crisp on-the-job exchange of text messages on 8 August 2016:
"Page: [Trump's] not ever going to become president, right? Right?!
Strzok: "No. No he won't. We'll stop it."
During their interview of Flynn, both Strzok and Page had the impression that Flynn was not lying or did not think he was lying. However, it was not until April 2020 that the prosecution disclosed what Flynn contends was a meeting by which the FBI to engineer the commission by Flynn of the crime of lying to the FBI, or the termination of his job as NSA.
The US government's application for dismissal of the Flynn prosecution (which required the "leave of the court") rested on its assessment that newly discovered evidence of FBI misconduct meant that the prosecution could no longer prove beyond reasonable doubt that any false statements made by Flynn were material to a legitimate FBI investigation, and further that continuation of the prosecution did not serve a substantial federal interest.
Adjusting his words in the Holloway case, the entry of former Judge Gleeson into the Flynn case, on the side of the sentencing judge, to resist "a prosecutor . . . [seeking] to do justice by the simple act of going back into court and agreeing that justice should be done" is but one of the very unusual aspects of a case which has turned into a constitutional controversy regarding the respective roles of the judicial and executive branches as prescribed by the US Constitution. That this is occurring on the eve of a presidential election in a time of otherwise unprecedented national emergency ensures that the outcome will make history.
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