In the middle of the coronavirus crisis, a cratering economy and plummeting approval ratings, perhaps it’s not surprising to see President Trump return to a favorite theme: abusing the rule of law.
Of course, it’s a bit of luck for Mr. Trump, too, that on Wednesday evidence emerged from the case against Michael Flynn, his disgraced former national security adviser, providing a new glimpse into the F.B.I.’s investigation of him. To Mr. Trump and his allies, it reveals a deep state intent on taking down his administration right as it began. “What happened to General Michael Flynn, a war hero, should never be allowed to happen to a citizen of the United States again!” Mr. Trump tweeted.
To Mr. Trump, trumpeting about maleficent federal agents must feel like slipping on a comfortable old shoe. A review of these internal F.B.I. communications, however, shows none of the wrongdoing that Mr. Trump would like to see. But no matter: The mischaracterization of these documents as evidence of F.B.I. misconduct — and by extension, absolution of Mr. Flynn — signals that the president will escalate his abuses of power in the run-up to the 2020 election.
The Michael Flynn scandal was one of the first to reveal the pattern of lawlessness that has characterized the Trump administration. In December 2016, Mr. Flynn, in a phone call, successfully implored Russia to moderate retaliation against the United States for sanctions imposed because of the attack on U.S. elections. The conduct raised serious questions under the Logan Act, which prohibits private parties from conducting U.S. foreign policy.
Mr. Flynn dissembled about the call, and his lies were made public, exposing him to potential blackmail by Russia. He then lied to the F.B.I. about it, was indicted and ultimately entered a guilty plea in December 2017 for those false statements. He is now seeking to withdraw that plea, resulting in the release of this new material.
Three of the pages of new material released this week show the F.B.I. discussing at what time in their conversation with Mr. Flynn they should warn him that lying is a crime. They are balancing his rights with the need to learn the truth and assessing how to do so without rattling him. Far from entrapment, that is standard operating procedure.
The fourth page of the documents consists of notes debating precisely the issues that Mr. Trump accuses the F.B.I. of barreling past. The notes include the question of “What’s our goal” and query whether it is “Truth/admission or get him to lie, so we can prosecute him or get him fired?”
Given the gravity of the situation, it would have been malpractice not to at least ask those questions as they prepared. The F.B.I. agents were confronted with a senior national security official who had already had a conversation with Russia that raised serious legal issues and had already lied about it. The notes are examining the two basic options in the situation: Mr. Flynn can tell the truth or lie, with consequences flowing accordingly.
When the F.B.I. has serious evidence of wrongdoing, it is normal to put targets in this bind. Law enforcement seldom puts all its cards on the table when questioning a suspect. This is not “entrapment,” where one is induced to commit a crime. Rather, the F.B.I. was trying to elicit the truth of whether a crime had already been committed. The alternative would be to lay out all the evidence (which the notes also discuss). But that would have put accountability and our national security at risk by possibly discouraging Mr. Flynn from talking.
So why the fuss over the past day by Mr. Trump, echoed by his usual enablers in Congress and on Fox News? I have spent years observing Mr. Trump’s abuse of power and attempts to obstruct investigations — a recurring pattern that resulted in his impeachment — and to me the answer is clear: He can’t help it. Abuse and obstruction is his standard operating procedure. He is also returning to form to distract from his latest blunder, his botched response to Covid-19, and to provide red meat to his base as part of his re-election strategy.
By this point in the Trump presidency, we can anticipate some of the specific threats that lie ahead.
First, we should look no further than Mr. Trump’s attorney general, Bill Barr. He recently said that the Russia investigation was “one of the greatest travesties in American history.” Never shy about responding to dog whistles, Mr. Barr’s powers include filing or joining in a motion to set aside the guilty plea and for dismissal of the charges against Mr. Flynn. True, it is baseless, but so was Mr. Barr’s conclusion that the president had not obstructed justice when the Mueller Report established multiple instances of that offense.
Unfortunately, Mr. Barr has found company in doing Mr. Trump’s bidding, including the U.S. attorney for the District of Connecticut, John Durham, who is conducting a review of the origins of the Russia investigation. Mr. Durham has already shown his fealty to Mr. Trump’s “alternative facts,” startling observers when he attacked the conclusion by his own department’s inspector general that early F.B.I. steps in the Trump-Russia investigation were properly predicated. Mr. Durham’s continuing review and eventual report is a second vehicle for Flynn-related mischief.
But perhaps the greatest looming rule-of-law risk with respect to Mr. Flynn comes from the president himself. The Mueller Report suggested Mr. Trump’s willingness to dangle pardons to those who do his bidding. In Mr. Flynn’s case the president has since said he is “strongly considering” a pardon. The president has limbered up with a series of dubious pardons and commutations for malefactors or allies ranging from Sheriff Joe Arpaio to Scooter Libby to Gov. Rod Blagojevich. Indeed, it is fair to ask whether Mr. Flynn’s abandonment of cooperation with the government was motivated by the hope of obtaining similar relief.
So we can expect that the Flynn drama will continue. At this point in the Trump presidency, who can believe that the president will resist the temptation to put his personal interests above those of the public? He did that when he said Russia would be rewarded for interfering in U.S. elections. He did it again when he fired the F.B.I. director James Comey, obstructed the Mueller investigation and pressured another foreign nation, Ukraine, to interfere in our elections. Indeed, his initial refusal to admit the seriousness of the coronavirus demonstrates that same elevation of his selfish interests in avoiding obstacles to his re-election.
The good news is that in every prior example, both our institutions and individual patriots stepped forward to respond to the harms that came out of the president’s pathological selfishness and disdain for the public interest. As the president continues his attacks on the rule of law in the Flynn case, here too there is a remedy. It is one that every American has the power to administer come November.
Norman Eisen (@normeisen) is a senior fellow at the Brookings Institution. He served as special counsel to the House Judiciary Committee during the impeachment and trial of President Trump.
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