How Gen. Flynn Should Have Answered the FBI’s Question
One of the reasons I was slow to come around to Gen. Flynn’s side was my view that he could have avoided all his troubles on his own by being thoroughly, indeed enthusiastically, honest with the agent who interviewed him. The agent asked him if he had had prior conversations with the Russian ambassador about American sanctions and the possible Russian response. According to the Justice Department’s motion to dismiss the indictment, Flynn answered, inter alia, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.'” Flynn also stated that although it was possible, he did not recall any conversation in which the ambassador stated that Russian would moderate its response due to Mr. Flynn’s request.
At best, these were not straightforward and forthcoming answers. There is no realistic possibility that Flynn didn’t remember that one of his main tasks for the prior six weeks or so was to see if Russia would moderate its response, and that he had talked to the ambassador about just that.
Gen. Flynn had a much better answer right in front of his face.
“I’m really glad you asked that question, Mr. Agent. As I’m sure you know, I was named the incoming National Security Advisor shortly after the election. An important part of that job was to do what I could do dissuade the Russian government from an excessive reaction to sanctions — a reaction that would have damaged important American interests — and to do it before the Russian position ossified in a way adverse to our country. So I did indeed talk to the ambassador. Indeed I talked his ear off. I’m happy to tell you that I think our efforts will bear fruit.
“Oh, and in case you’re wondering whether I thought I might be violating the Logan Act — not a chance. Prosecutions for fornication are more frequent than Logan Act prosecutions. More successful, too! I think the Act was passed, what, 200 years ago or so, that there’s never been a conviction under it, and that the last attempt to get one came nine years before the Civil War. Plus the majority of scholars think it’s pretty clearly unconstitutional. Am I getting that right?
“While we’re at it, Mr. Agent, I know, having worked in Intelligence for years, that you already have a full account of what my contacts were, since — thank goodness! — we lawfully eavesdrop on conversations involving Russian officials, Russia being no particular friend of the United States. My bet is that you have in your briefcase right there a transcript of the whole thing. Maybe we could go over it together at some point. I’d love to show you how smooth I was with that guy. The Russians aren’t nearly as tough as they think.
“But that does raise a question in my mind. Why are you asking me about something you already know? I mean, if I were a suspicious man, I might think that this was — I hate to say this — a setup. But I’m sure that’s not right. The FBI has a long and honorable history of service to the country, and I’m sure its behavior and yours are straightforward and upstanding.
“Well golly, I do go on. I’m sorry. I have a meeting coming up in five minutes and I’ve got to pull some things together. It was a pleasure meeting you, and I hope we’ll be working together in the future. Thank you for your service.”
And that would be the end of that.
Now obviously I’m having some fun here, but there’s a point. Flynn is not a lawyer and might not have known about the Logan Act or how much of a dead letter it is (although I suspect he did). But he surely knew this much: You either tell the truth, or you decline the question. Thus, he easily could have responded with: (1) the truth itself — “Yes, I talked to the ambassador because that was part of the job I was about to start;” (2) “I think this is more of a national security matter than an FBI matter, so it’s not something I’m sure it’s proper to get into with you;” (3) “I think I can give you the correct answer, but I’m going to have to check my notes first to be sure I’m getting this exactly right. I’ll get back to you;” (4) “With all respect, and intending no offense, a question like that from an FBI guy gets me a little nervous, and I want to check with White House Counsel before answering;” (5) “This seeks more detail than I want to get into just off the seat of my pants, so let’s stop here for now and I’ll be looking for a set of written questions from you.”
Again, the government’s motion to dismiss should be granted because the higher-ups at the FBI and the Justice Department departed too frequently and too flagrantly from the straightforward dealing we expect, and should demand, in a free country. Their work, if let standing, would be a stain on the fabric of justice. But Gen. Flynn had better options than he exercised.