The FBI's Flynn Interview Was Not Legitimate

December 18, 2018 By Mark Wauck

As the slow-motion drama of the Michael Flynn prosecution winds slowly toward sentencing today, it has become increasingly clear that the conservative commentariat feels conflicted. On the one hand, they can't approve of what appear to be lies on the part of Flynn -- inexplicable as this appears to have been in the circumstances (Flynn knew that the FBI had a recording of his conversation with the Russian Ambassador).

On the other hand, there seems to be something distinctly fishy about the entire case against Flynn. The evidence of investigative and prosecutorial misconduct -- possibly including criminal acts -- has become overwhelming. Nor has Robert Mueller's reply to the Flynn response to the sentencing memorandum allayed any of those misgivings -- quite the contrary, as Scott Johnson (one of the Powerline bloggers) puts it:

I find the reply memo to be a shocking document. Something does not compute.

............The solution should, in fact, be glaringly obvious, but has escaped notice -- most likely because it requires an examination of the basic principles underlying law enforcement in our constitutional system. In our system of law, the State is not authorized to simply test its citizens -- citizens are entitled to be left alone unless law enforcement has some articulable reason for approaching them............... In light of this principle, the first question that arises with regard to the FBI's approach to Flynn is clear: What reason did the FBI have to interview Flynn?...........

Let's begin at the top: "not a great beginning of a false statement case." In other words, the visit of the agents to Flynn's office was the beginning of a false statement case. But the FBI is not authorized to go around testing the veracity of random citizens: they must have an articulable official reason. Consider this hypothetical that I hope will present the issue in an even broader light.............No court should allow the FBI to set itself up as a self-appointed tester of the truthfulness of the citizenry, absent an articulable reason related to the FBI's official duties. .......To Read More