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The Tragedy of Michael Flynn: Part Four

It has come into doubt whether Lieutenant General Michael Flynn lied, and whether it would be criminal even if he had.

Michael Flynn (Wikipedia)

The first point may appear inconceivable on its face, but consider that an FBI memo from 22 August 2017 noted that the agents who conducted the Flynn interview “had the impression at the time that Flynn was not lying or did not think he was lying” (Richey, 2018). Granted, that Flynn “did not think he was lying” is not evidence that he was not lying; similarly, an agent’s “impression” is not equivalent to reality. Flynn could have very well been lying through his teeth, but critical thinking suggests otherwise.

It is important to consider the facts dispassionately and logically. Several media outlets have noted that Flynn, the former head of the Defense Intelligence Agency, would have known that his communications with Russian Ambassador to the U.S. Sergei Kislyak were being surveilled. The Christian Science Monitor notes, “General Flynn well knew that any telephone contacts with Russia’s ambassador in Washington would likely be recorded – and perhaps monitored – by US intelligence officials” (Richey, 2018).

If we are to accept that Flynn knew he was being recorded and possibly monitored, a question axiomatically follows: Why would someone who knows that a conversation has been recorded lie about that conversation to the person who has access to the recording? Perhaps Flynn is an idiot, but it is unlikely that someone would self-immolate this easily.

The more likely conclusion is that Flynn’s misrepresentations were not as intentional as they were made out to be—if they were intentional at all. According to the 24 January 2017 FD-302, when Flynn was asked if he pushed Russia not to retaliate, he responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” For any rational observer, “not really” and “I don’t remember” are not pronouncements of assuredness. However, for the DOJ, they were cause for pursuing Flynn on a lying-to-the-FBI charge.

It is also possible that Flynn’s use of phrases like “not really” was intended to “protect sensitive or classified information.” Flynn himself has suggested that his misrepresentations were the consequence of forgetfulness paired with his military-man commitment to secrecy:

I did not lie to [the agents]. I believed I was honest with them to the best of my recollection at the time. I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak … My baseline reaction to questions posed by people outside of my superiors, immediate command, or office of responsibility is to protect sensitive or classified information, except upon ‘need to know’ and the proper level of security clearance. (Gerstein, 2020.)

Additionally, even if Flynn had intentionally lied to the FBI, it is unclear whether a lying-to-the-FBI charge against Flynn would withstand the scrutiny of a jury. Title 18, § 1001 declares that it is a crime to make “any materially false, fictitious, or fraudulent statement or representation” (emphasis added). There has been debate over whether Flynn’s misrepresentations rise to the level of material falsehood, as the FBI already knew of Flynn’s communications with Kislyak and his suggestion of sanctions relief.

In a column for the Hill, Harvard Law School Professor Emeritus Alan Dershowitz makes this point with a series of rhetorical questions: “Is a lie material when the FBI already knows the truth because it has it on tape? Is it material if the only reason the FBI asked the question was not to get the subject to provide truthful information but to get him to lie?”

To reinforce his thesis, Dershowitz includes a quotation from Charles Breitel, a late judge of the New York Court of Appeals: “[W]here a prosecutor exhibits no palpable interest in eliciting facts material to a substantive investigation of crime or official misconduct and substantially tailors his questioning to extract a false answer, a valid perjury prosecution should not lie.” In other words, because the Flynn interviewers knew the answers to the questions they asked of Flynn, the retired lieutenant general cannot be legitimately prosecuted for his misrepresentations—even if they were intentional (Dershowitz, 2020).

In an attempt to rebut Dershowitz’s point, former U.S. Attorney Chuck Rosenberg suggests the Justice Manual, which says, “[T]he test for materiality under [Title 18, Section] 1001 is not whether the false statement actually influenced a government function, but whether it had the capacity to influence” (Rosenberg, 2018). If Flynn knew that his communications with Kislyak were being recorded and possibly monitored, there is no way that he could have seen his misrepresentations as material falsehoods with “the capacity to influence.” Even if Flynn was intending to deceive, his rational instincts would have reminded him that the attempt would be futile given the FBI’s wealth of information.

This is the fourth 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 "Did Flynn Lie to the FBI?" Hurley's source list (to which the parenthetical citations correspond) can be found here: