Bill Barr is an Orwellian character. Since his unsubtle comment a few days ago about how “history is written by the winners” there’s been no doubt where he stands as a might-makes-right autocrat. Every Sunday the usual sheaf of articles rebutting the current week’s fire hose of falsehood from the Trump administration hits the stands and today a particularly scathing one comes from Mary B. McCord, who was an acting assistant attorney general for national security at the Justice Department from 2016 to 2017. McCord says that William Barr has “twisted’ her words, with respect to her opinion as to how to handle the Michael Flynn matter. She goes on to say, “the report of my interview does not anywhere suggest that the F.B.I.’s interview of Mr. Flynn was unconstitutional, unlawful or not “tethered” to any legitimate counterintelligence purpose.” McCord clarifies Barr’s doublespeak and explains what really happened. New York Times:
Notably, Mr. Barr’s motion to dismiss does not argue that the F.B.I. violated the Constitution or statutory law when agents interviewed Mr. Flynn about his calls with Mr. Kislyak. It doesn’t claim that they violated his Fifth Amendment rights by coercively questioning him when he wasn’t free to leave. Nor does the motion claim that the interview was the fruit of a search or seizure that violated the Fourth Amendment. Any of these might have justified moving to dismiss the case. But by the government’s own account, the interview with Mr. Flynn was voluntary, arranged in advance and took place in Mr. Flynn’s own office.
Without constitutional or statutory violations grounding its motion, the Barr-Shea motion makes a contorted argument that Mr. Flynn’s false statements and omissions to the F.B.I. were not “material” to any matter under investigation. Materiality is an essential element that the government must establish to prove a false-statements offense. If the falsehoods aren’t material, there’s no crime.
The department concocts its materiality theory by arguing that the F.B.I. should not have been investigating Mr. Flynn at the time they interviewed him. The Justice Department notes that the F.B.I. had opened a counterintelligence investigation of Mr. Flynn in 2016 as part of a larger investigation into possible coordination between the Trump campaign and Russian efforts to interfere with the presidential election. And the department notes that the F.B.I. had intended to close the investigation of Mr. Flynn in early January 2017 until it learned of the conversations between Mr. Flynn and Mr. Kislyak around the same time.
There’s an immense forest-for-the-trees factor here, that apparently Barr is just hoping people will forget about. There was a potential for blackmail of Flynn by the Russians and the Justice Department officials at the time rightfully believed that the incoming administration needed to know about that. It was unthinkable that anybody would take the role of national security adviser, when the person is in fact being leveraged, or might be leveraged by a foreign power, in this case Russia. Add to that, the fact that Russia had just been found by the intelligence community to have interfered in the 2016 election and the Flynn situation became untenable.
This was a sensitive situation and McCord goes on to explain how the FBI interview of Flynn should have been coordinated with Justice — not that she disagreed with Comey doing it.
The Barr-Shea motion to dismiss refers to my descriptions of the F.B.I.’s justification for not wanting to notify the new administration about the potential Flynn compromise as “vacillating from the potential compromise of a ‘counterintelligence’ investigation to the protection of a purported ‘criminal’ investigation.” But that “vacillation” has no bearing on whether the F.B.I. was justified in engaging in a voluntary interview with Mr. Flynn. It has no bearing on whether Mr. Flynn’s lies to the F.B.I. were material to its investigation into any links or coordination between Mr. Trump’s presidential campaign and Russia’s efforts to interfere in the 2016 election.
And perhaps more significant, it has no bearing on whether Mr. Flynn’s lies to the F.B.I. were material to the clear counterintelligence threat posed by the susceptible position Mr. Flynn put himself in when he told Mr. Pence and others in the new administration that he had not discussed the sanctions with Mr. Kislyak. The materiality is obvious.
Trump has made it clear that he’s invested in certain CT themes and it seems that Barr is committed to amplifying them. Trump has gone on record about the “Deep State Department” believing that to be a clever meme and he speaks of the “dirty filthy cops” in the FBI and its “showboat” “grandstander” director James Comey. Michael Flynn has been depicted as the poster child of a political prisoner, by Trump. “Tormented” “destroyed” “they came at him with 15 buses and he’s standing in the middle of the road,” are Trump’s words.
In classic Trump form, he needs to have somebody to smear to get the base into the right Two Minute Hate mode, and right now, the Flynn issue is custom tailored for that. He can rally the base with how he’s draining the swamp and fighting the Deep State. As desperate as he is for something to say when he gets up there, the Flynn matter may take on a disproportionately large dimension in the upcoming election as a talking point. You can see it revving up already, with Trump’s latest anti-Obama riff and Obama’s calm reply that dismissing Flynn’s charges is an affront to the rule of law. This may very well become a topic of frenzy on the campaign trail, because Trump is desperate for anything that will shift the focus away from coronavirus and the economy.