Barack Obama is a lawyer, so it was stunning to read that he ventured into the Michael Flynn case in a way that misstated the supposed crime and ignored the history of his own administration in targeting Flynn. Since the former president chose to offer his legal views when he didn’t need to, we wonder what he’s really worried about.
“There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free,” Obama said last week in a call to about 3,000 members of the Obama Alumni Association. The comments were leaked to Yahoo News and confirmed by Obama’s spokeswoman to the Washington Post and other outlets.
Obama added: “That’s the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk. And when you start moving in those directions, it can accelerate pretty quickly as we’ve seen in other places.”
Even discounting for Obama’s partisan audience, this gets the case willfully wrong. Flynn was never charged with perjury, which is lying under oath in a legal proceeding. Flynn pleaded guilty to a single count of lying to the FBI in a meeting at the White House on Jan. 24, 2017, that he was led to believe was a friendly chat among colleagues.
As for “scot-free,” that better applies to former President Bill Clinton, who lied under oath in a civil case and was impeached for perjury but was acquitted by the Senate. We understand why Obama wouldn’t bring that up.
We doubt Obama has even read the Justice Department motion to drop the Flynn prosecution. If he does ever read it, he’ll find disconcerting facts that certainly do raise doubts about whether “our basic understanding of rule of law is at risk,” though not for the reasons he claims.
Start with prosecutorial violation of the Brady rule, which Obama knows is a legal obligation that the prosecution must turn over potentially exculpatory evidence to the defense. Yet prosecutors led by special counsel Robert Mueller didn’t disclose that the interviewing FBI agents at the time didn’t think that Flynn had lied about a phone call with the Russian ambassador.
Worst of all, as a legal matter, is that they never told Flynn that there was no investigative evidentiary basis to justify the interview. The FBI had already concluded there was no evidence that Flynn had colluded with Russia in the 2016 election and had moved to close the case. James Comey’s FBI cronies used the news of Flynn’s phone call with the Russian ambassador as an excuse to interview the then national security adviser and perhaps trap him into a lie.
All of this was moved along politically by leaks to the media about Flynn’s phone call with the Russian. The U.S. eavesdrops on foreign officials as a routine, but names of innocent Americans on those calls are supposed to be shielded from review to protect their privacy. Yet senior Obama officials have had to acknowledge that they “unmasked” Flynn’s name and others in their last months in power. Then, what a surprise, news of Flynn’s call and its contents pop up in the Washington Post. Did someone say “institutional norms”?
FROM AN EDITORIAL IN THE WALL STREET JOURNAL