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The Tragedy of Michael Flynn: Part Five

There are concerns that the investigation into Lieutenant General Michael Flynn was tainted by political considerations, and that his defense was weakened by conflicts-of-interest on the part of his first set of attorneys. The immediate fodder for the former sentiment is the latest release by U.S. Attorney Jeffrey Jensen: an FBI document from 4 January 2017 and a sequence of emails and text messages sent by Agent Peter Strzok.

Peter Strzok (POLITICO)

The FBI document examines the intentions of Crossfire Razor (i.e., the investigation into Flynn): to ascertain whether Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation.” The memo outlines the activities of the FBI—checking databases, utilizing a confidential human source (i.e., an informant), and scrutinizing travel records. However, all of this work was for naught: The FBI found “no derogatory information” on Flynn and proclaimed, “The FBI is closing this investigation” (Federal Bureau of Investigation, 2017).

The FBI left itself an opening, noting that they would “consider reopening the investigation if warranted,” and Strzok sensed opportunity. After the release of the statement-of-closure on 4 January 2017, Strzok fired off a series of messages: “Hey if you havent [sic] closed” the investigation, “don’t do it yet” (2:11pm); “Hey if you havent [sic] closed RAZOR, don’t do so yet” (2:14pm); and “Pls keep it open for now” (2:18pm). Strzok was able to maintain the investigation, and he attributed his success to “7th floor”—FBI leadership. Then, at 2:19pm, Strzok sent a message to Lisa Page, the FBI lawyer (and his paramour): “Razor still open,” a “serendipitously good” outcome. Page wrote back, “[P]hew. But yeah, that’s amazing he is still open” (Department of Justice, 2017).

Strzok’s involvement would be irrelevant if he had not been previously implicated in anti-Trump advocacy. In a chain of text messages between Strzok and Page, Trump was described as a “menace,” an “idiot,” a “loathsome human.” Furthermore, Strzok hinted at an FBI investigation as an “insurance policy” against a Trump victory (Kendall & Viswanatha, 2017). This goes without saying, but when someone with the investigative power of the FBI accepts the premise that someone else is a “menace” against whom an insurance policy is necessary, the potential for abuse is undeniable.

While comments of this nature are inherently speculative, it is odd that Strzok—who held strong anti-Donald Trump (and pro-Hillary Clinton) political opinions—was concurrently involved in the Flynn, Hillary Clinton, and Mueller probes, the most politically-charged investigations of the past five years (Kendall & Viswanatha, 2017).

Some astute news-readers may suggest that Michael Horowitz, the inspector general who probed the FBI’s investigation of potential Trump-Russia collusion, certified that “the FBI was justified when it launched the Russia probe in July 2016, and senior FBI officials weren’t motivated by political bias against candidate Donald Trump.” This is a non-sequitur, as Horowitz investigated the circumstances surrounding the commencement of the broader probe into Team Trump, not the granularities of the Flynn investigation. Moreover, Horowitz’s assertion that the FBI was justified in launching Crossfire Hurricane was qualified by his assertion of “basic and fundamental errors” whose perpetrators cannot be vindicated (Cohen, 2019).

There have also been accusations that Flynn’s attorneys—from Covington and Burling—were conflicted. It is important to unpack this allegation chronologically.

A Lawfare-Foreign Policy collaboration notes, “Reputable newspapers had reported Flynn’s failure to register under the Foreign Agents Registration Act” (Hennessey & Wittes, 2017). More precisely, Mueller investigated Flynn for “making a false statement in his filings under the Foreign Agents Registration Act (FARA) for work he had allegedly done for the government of Turkey prior to the Nov. 8, 2016, election.” Covington and Burling had “assisted Flynn in preparing the allegedly false FARA filings,” “potentially implicat[ing them] along with the client”—Flynn (Gordon, 2020).

However, if the false statements on the FARA registration are the handiwork of the client, his attorneys cannot be held liable. This gives the attorneys a perverse incentive to establish their own client’s guilt. Nonetheless, Covington and Burling maintained their status as Flynn’s counsel and negotiated a plea deal in which Flynn “effectively admitted to … making a false statement in his FARA filings,” though he did not officially plead guilty on that charge (Gordon, 2020).

The accuracy of Flynn’s guilty plea notwithstanding, it assisted Covington and Burling because it put the onus of the FARA issues on their client instead of the firm, a conflict that “should have precluded Covington from representing Flynn in entering this guilty plea as it is structured.” This conflict-of-interest is why Flynn ultimately switched out Covington and Burling for Sidney Powell, and Powell is now claiming that Flynn did not “willfully and knowingly” lie in the FARA filings (Gordon, 2020). Powell also intimates that Flynn was denied the Sixth Amendment right to counsel “because he was not adequately represented by his legal team during the negotiation process” (Jurecic & Wittes, 2020).

This is the fifth part of a six-part series on the investigation and prosecution of Lieutenant General Michael Flynn, written by Declan M. Hurley. This segment is entitled "Was Flynn a Victim of Political Bias?" Hurley's source list (to which the parenthetical citations correspond) can be found here: