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The General and the President
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This is a tale of FBI power misused and presidential trust misplaced.

Last week, retired Lt. Gen. Michael Flynn, President Donald Trump’s confidant on matters pertaining to national security from June 2015 to February 2017 and his short-lived national security adviser in the White House, pleaded guilty in federal court in Washington, D.C., to a single count of lying to the FBI. Under the terms of his plea agreement, Flynn, who had faced nearly 60 years in federal prison had he been convicted of charges related to all the matters about which there is said to be credible evidence of his guilt, will now face six months.

What could have caused Robert Mueller, the no-nonsense special counsel investigating whether any Americans aided the Russian government in its now well-known interference in the 2016 American presidential election, to have given Flynn such an extraordinary deal?

Here is the back story.

During the FBI’s investigation of Russian meddling in the election, it became interested in Flynn’s communications with Sergey Kislyak, a KGB colonel (the KGB is now known by its post-Soviet acronym, FSB) masquerading as the Russian ambassador to the U.S.

After Trump won the presidency, Flynn became an important member of the presidential transition team. Between the election and the inauguration, Flynn spoke on the telephone with Kislyak five times. Because Kislyak was a foreign spy, as well as an ambassador, his communications with Americans were monitored by the FBI.

When Flynn agreed to be interviewed by the FBI in his West Wing office on Jan. 24, he probably did not know what the agents were looking for. Jim Comey was still the director of the FBI. Mueller had not yet been named special counsel. The FBI investigation into Russian meddling in the just-completed presidential election was in its infancy.

Prior to the interview, the FBI obtained the transcripts of Flynn’s conversations with Kislyak. The conversations themselves were not illegal. On the contrary, it is expected that an incoming presidential administration will begin to reach out to foreign leaders even before the new president is inaugurated.

When the FBI interviewed Flynn, it asked him whether he had spoken with Kislyak and, if so, whether they had discussed American sanctions imposed on Russian individuals as retaliation for Russian meddling in the election. Flynn acknowledged the conversations but denied that they had been about sanctions. The two agents interviewing him knew immediately that he was lying, because they had read the transcripts of his conversations.


Since the FBI knew the subject matter of the Flynn-Kislyak conversations, what was the purpose of the Flynn interview? And given that the conversations were lawful — as long as they occurred after Trump’s victory — why would Flynn lie about them? As well, given that Flynn once ran thousands of surveillance projects against high-level foreign targets, how could he not have known that the FBI knew what he had discussed with Kislyak before its agents walked into his office?
Did Flynn have anything to hide from his interrogators? If he did, he has no doubt since revealed it to the FBI, because his guilty plea requires full cooperation with the same special counsel team that prosecuted him.

Timing is everything. The question of whether the conversations occurred while Trump was a candidate and whether they involved the transfer of anything of value from the Russian spy to the American campaign adviser or vice versa — whether the campaign, through Flynn, helped the Russians in their meddling or the Russians gave helpful information to the campaign in exchange for something of value — is at the heart of Mueller’s mission to prove or dispel allegations that the Trump campaign colluded with Russia.

Three weeks after the FBI interviewed Flynn, Trump fired him. The publicly stated reason for the firing was a purported lie that Flynn had told to Vice President Mike Pence about his conversations with Kislyak. Last weekend, on the day after Flynn pleaded guilty, the president issued a tweet claiming that he fired Flynn for lying to Pence and to the FBI.

If Flynn was fired in February for lying to the FBI in January, then Trump was aware of Flynn’s lies and his likely prosecution for them when he asked Comey to back off the FBI investigation of Flynn and then fired Comey for not backing off.

This is dangerous territory for the president.

Obstruction of justice is the interference with a law enforcement or judicial proceeding for a corrupt purpose. Thus, if the president knew of Flynn’s lies to the FBI when he asked Comey to back off Flynn, the existence of a presidential crime and impeachable offense depends on the president’s state of mind.

If the “back off Flynn” request was given because the president felt sorry for the general or because he had concluded that the FBI’s limited resources would be better utilized finding terrorists or arresting bank robbers, there was no corrupt motive. But if the motive for the request to Comey was fear of what beans Flynn might spill — about the president himself or his son-in-law, for example — that would be a corrupt motive, and the request would be a crime, as well as an impeachable offense.

Obstruction of justice is the rare federal crime that need not succeed to be criminal and prosecutable. It is also the rare federal crime that nearly all legal scholars agree is an impeachable offense. The president’s lawyers are not among them.

They have argued that because the president is the chief federal law enforcement officer in the land, his decisions on whom to prosecute are final and always lawful. That sounds like former President Richard Nixon’s now fully discredited argument that “when the president does it, that means that it is not illegal.”

In America, the president is a public servant, not a prince. Is the president in legal hot water? In a word: yes.

Copyright 2017 Andrew P. Napolitano. Distributed by

• Category: Foreign Policy • Tags: Donald Trump, Michael Flynn, Russia 
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  1. It’s disingenuous to equate the position taken by Trump’s layers with that alleged to have been taken by the Nixon administration. The Trump position is a correct statement of law, albeit a dicey political statement at best. Impeachment is a political process, not a legal process.

  2. anonymous • Disclaimer says:

    I have been calling this one for the past month or so, as the author has subtly endorsed the Establishment line. Judge Waterboy is now openly on board:

    “.. whether any Americans aided the Russian government in its now well-known interference in the 2016 American presidential election ..”

    This eminent lawyer needn’t cite any evidence because it’s “now well known.” Just like those weapons of mass destruction in Iraq, ad nauseum.

    Hey, Judge! What if everyone permitted to speak with authority in mass media on public affairs ends up lying to maintain his gig?

    Maybe one of the FoxHounds will tell us where Tucker Carlson is on this. Or is he too busy yelling at loons about bathrooms and statues?

    • Replies: @anonymous
    , @WorkingClass
  3. Issac says:

    The eternal guido strikes again for his progressive masters.

  4. A few objections.

    1) Lets say America has a revolution and the people manage to re-establish a democracy in this country. But the country decides it still needs a national police agency. Would it be accurate to refer to an officer in that agency as “an FBI Special Agent in Charge” decades after the FBI no longer exists? And then try to gloss over that by giving new initials for the new agency that replaced the agency that disappeared 20 years ago, but just pretend that its all the same agency before moving on quickly? That was a highly misleading opening in my view.

    2) Is there any proof at all that Ambassador Kislyak was a spy? I don’t recall ever seeing any. Just like the rest of this junk involving Russiagate, that’s been loudly asserted by the Democrats, but zero evidence has ever been presented.

    Yes, embassy usually have a nest of spies embedded in them. But it would be rather extraordinary if the Ambassador was a spy. That is in most countries a separate career track. And the Ambassador usually stays a bit apart from the what the spies in the embassy are doing, if only to maintain the phrase ‘plausible deniability’. I would doubt that the Ambassador even knows what the spies are doing, especially not on a daily basis.

    By making these factless assertions right at the beginning of the piece, Judge Napolitano lost credibility with me. Just more factless junk from the MSM is all I see in this piece.

    • Replies: @anonymous
  5. Another point … the Judge declares that the when Gen. Flynn was interviewed by the FBI, that the investigation into Russian meddling was in its infacy.

    Again, that’s misleading. The FBI had jumped when Hillary and the Democrats said to jump back in the summer of 2016 when Hillary wanted to distract attention away from the fact that she’d just been caught red-handed ‘meddling’ and ‘interfering’ in the election by rigging the Democrat nomination process.

    In America’s restrictive 2-party form of democracy, controlling who is one of the two candidates for President who has any chance at all of winning is the biggest interference one can possibly have in the election. That’s exactly what Hillary had been caught red-handed doing in July 2016 when someone within the DNC leaked that to the outside world. It severely threatened Hillary’s coronation drive to the White House, because if the Sanders supporters got upset and didn’t turn out to vote for Crooked Hillary, then her campaign was dead and lost.

    That’s when Hillary got the whole Obama Administration to jump and start with all of this Russiagate nonsense. Now we see the Judge trying to pretend that the investigation was in its infancy a whole six months later.

  6. Insight says:

    The Judge works hard in this piece to maintain the fiction that the NSA only eavesdrops on ‘foriegn spies’.

    We already know from other leaks that many of the people who were on the Trump team were being spied upon for months prior to this. The Democrats used the fake Dodgy Dossier that was paid for by the Hillary campaign and the DNC to monitor the Trump team. We already know this. Look up Susan Rice and ‘unmasking’.

    I think its through Mr. Snowden’s leaks that we know the motto of the NSA was to ‘Collect Everything.’ We know that the NSA was building (completed and operational by now) a huge center in Utah to store the massive amounts of information that it scoops up. If they only eavesdropped on a few foreign spies, then that’s a giant waste of taxpayer money.

    Bugging an Ambassador is also not unusual for the USA. They’ve been caught eavesdropping on the UN in the past, as just one example.

    So, lets not believe this MSM correspondent when he tries to pretend that the NSA only listens to ‘foreign spies’. By this point in time, that’s just MSM nonsense and I’d expect the Judge to know better.

  7. anonymous • Disclaimer says:

    “.. Robert Mueller, the no-nonsense special counsel .. ”

    Anyone else here old enough to remember the Weekly Reader?

    What A Tool.

  8. Ben Frank says:

    No harm no foul. All these hysterical column-inches in the big newspapers add up to about nothing. The Mueller Flynn fight is like middle-school: “well he said that he said that …”.
    Mueller is just a weapon for the elites to use against the middle-class, by attacking the President.

  9. The Scalpel says: • Website

    Andrew Napolitano – disgusting sell-out. The only reason I opened the article was to make that clear. Fortunately others here have already done so

  10. anonymous • Disclaimer says:
    @George Smiley

    C. J. Hopkins may have cleared this up for us in his new article here at TUR:

    “The way things are going, that might take a while, but rest assured they’ll get there eventually. Now that Robert Mueller has proved that Trump colluded with Vladimir Putin by obstructing an investigation by Comey into Michael Flynn’s lying to the FBI about not colluding with the Russian ambassador on behalf of Israel at Kushner’s behest, the dominoes are surely about to fall.”

    Can Judge or anyone else please confirm?

  11. @anonymous

    Agreed. I had not realized until now that the Judge is just another lying sack of shit.

    • Replies: @anonymous
  12. anonymous • Disclaimer says:

    Now watch to see how he deals with the exposure of the shameful, inept propaganda since. (Cf., the excellent articles by Mr. Greenwald and Mr. Lauria available here at TUR.) If he is intellectually honest, there will be a retraction. But we’ll likely see Mr. Napolitano pull the Russophobic dirk back under his robe back for a while, and write something supportive of President Trump* or, more likely, criticize the Establishment on another issue such as USG surveillance in violation of the Fourth Amendment.


    *I wasn’t and am not a Trump supporter. But his election and (some of) his subsequent conduct do seem to have made it easier for more people to see the Red & Blue puppet show for what it is.

  13. yeah says:

    The judge seems to have lost his marbles, or basic honesty, or perhaps both.

    How can any non-half-wit go on parroting “It is well known that Russia interfered in American elections”. Got any evidence, judge? Such “interference” as there may have been was of the type that every Government carries out in foreign elections. Rooting for one candidate versus another by a foreign country happens all the time, especially by America. The Americans also pump in huge amounts of money to swing foreign elections. Such money the Russians do not have and there is no evidence that Russian money was used in US elections. Nor did they hack into voting systems to alter the vote count. So what exactly is the Judge cribbing about?

    Re the Russian Ambassador being in reality a KGB spy. Get real Judge! Pappy Bush was CIA, so how come you never called him “CIA masquerading as President”? Half of senior US Government elites are CIA. How come you never object to that?

    All embassies have spies, the US embassies perhaps more than other countries. Is that ground for breaking off communications?

    If you must root for the DNC crowd, at least do so in an intelligent way. This article by the Judge was very low IQ stuff!

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