The FBI and the DoJ have very reluctantly revealed more and more information about how the Obama administration conspired to subvert democratic elections.  Recent bombshell documents prove that President Barack Obama was directly involved in the conspiracy against Donald Trump.  Acting Attorney General Sally Yates was surprised to learn directly from Obama in the Oval Office about the anti-Trump efforts.  Obama knew more about the conspiracy than Yates did. 

This week, the Uniform Services League filed a Friend of the Court brief in support of Lt. General Michael Flynn opposing his further prosecution.  Philadelphia criminal defense attorney Todd Mosser authored the brief.  I filed it as local counsel admitted in that Court.  Todd Mosser’s excellent brief presents the law and also points out how the newly disclosed information means that Flynn is actually innocent, not just that bad behavior by the FBI taints prosecution.  Mosser explains how Flynn cannot be prosecuted for perjury or contempt. 

But we discovered a lot more information than could fit reasonably in the brief.  So here are some outtakes that have broader implications and concerns about our politics. 

The brief explains quickly  how the public narrative is proven false by the recent revelations.  Why did Judge Emmet Sullivan call Flynn a traitor?  Because Robert Mueller’s Office of Special Counsel lawyers spun the false tale that Russia did a special favor for Flynn, suggesting that there was collusion.  The favor?  Obama imposed sanctions on Russia for supposedly meddling in the 2016 elections.  (Of course, I was in Russia in 1996 when Bill Clinton was meddling in the Russian presidential elections, but never mind.) 

Unexpectedly Russia did not retaliate for the sanctions.  Mueller’s attorneys lied in court and nationwide through the media that Russia did Flynn a favor, implying that there was some quid pro quo and that Flynn had promised Russia that the sanctions would be reduced or canceled once Trump took office.  But the slow-rolled reveal of documents prove that to have been another Mueller lie. 

The actual transcripts of the phone calls declassified on May 29, 2020, show that Flynn never asked for anything from the Russian ambassador, but only suggested that Russia consider the future ability of the countries to work together on common threats in the Middle East.  When Sergey Kislyak called back -- contrary to the Mueller lies -- he did not say that Russia had granted Flynn a favor or request.  Kislyak said that Russia had considered the ideas the two had discussed that the countries would need to be able to keep working on common interests such as terrorism in the Middle East. 

Flynn never talked about the sanctions, but only Russia’s expected retaliation.  Flynn accepted in these conversations that the Obama sanctions would happen and that Russia would retaliate.  Flynn only mentioned that the countries face common threats and an out-of-control spiral of retaliations could hinder future cooperation.  Nothing in this remotely implies that the sanctions would not stay in place.

On January 24, 2017, FBI agents pretending to just be colleagues who wanted to be updated on developments with Russia, including saying they did not understand why Russia did not retaliate, had a casual meeting with Flynn.  Flynn said that he only vaguely remembered the conversations.

However, two day later the coup plotters, including Sally Yates, sought to fabricate a reason to sideline Flynn under the Logan Act, 18 U.S.C. § 953.  The White House Counsel Don McGahn, Yates and relevant leaders of the FBI passionately argued that the Logan Act criminalizes any difference in policy between outgoing and incoming administrations.  See Exhibit 4 to the Government’s Motion to Dismiss the Criminal Information Against the Defendant Michael T. Flynn, Interview by the Office of Special Counsel of Sally Yates, August 15, 2017, pages 8-9.  In Yates’ interview with Mueller’s team, she portrays threatening the White House with very serious allegations that Flynn violated the Logan Act.

Even though Flynn did not, in fact, suggest any lessening of the Obama sanctions, the FBI and Yates lied to the White House and said he did.  And they claimed that a difference in policy between the lame-duck administration prior to Inauguration Day on January 20 and the new incoming administration would be a crime. 

Yates and FBI leaders actually got Flynn fired by threatening a bogus interpretation (See Exhibit 4) of this widely-ignored statute.

But, significantly, Flynn was acting in December 2016 and January 2017 officially for the U.S. government as a member of the president-elect’s transition team and not independently on his own.  See, generally, The Presidential Transition Act of 1963, P.L.88-277 (March 7, 1964).

Prior to Flynn’s conversations, the Electoral College had met on December 19, 2016, making Donald J. Trump officially the incoming President.  His presidency was “vested” and certain to take place in 31 days.

According to Robert Mueller’s Statement of the Offense (Docket No. 4):

1.   The Defendant, MICHAEL T. FLYNN[] served as ... a senior member of President-Elect Trump's Transition team ("Presidential Transition Team"), and as the National Security Advisor to President Trump...."

“3. …  c…  On or about December 29, 2016, [Flynn] called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. sanctions.  On that call, Flynn and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals.  The PTT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

The government concedes that Flynn was acting at all relevant times under the authority of and at the direction of the President-Elect, not as a private citizen.   

This was never a valid basis for investigating Flynn.  Mueller’s team stated that “It seemed logical to her that there may be some communications between an incoming administration and their foreign partners, so the Logan Act seemed like a stretch to her,” in its interview of Mary McCord, August 10, 2017, in Exhibit 3 to Government’s Motion to Dismiss the Criminal Information Against the Defendant Michael T. Flynn, page 3 (Docket No. 198-4))

But the Logan Act focuses on “authority,” not consistency.  An incoming administration is not expected to continue the same policies.  Predicating an FBI investigation into the next National Security Advisor would require an interpretation of the Logan Act that has never been tested in court:  Flynn lacked authority to speak to foreign officials on behalf of the duly elected incoming President.  Even if one stands on when a new president is actually sworn in, an FBI investigation would be pursuing an untested concept.