In an address given eighty years ago by the then-Attorney General of the United States, Robert H. Jackson made these prophetic words:
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.” [Robert H. Jackson, “The Federal Prosecutor” April 1, 1940.]
Given documents released as a result of the independent review ordered by Attorney General William Barr, that this is what happened to Michael Flynn.
According to Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, Flynn was railroaded in what liberal law professor, “galling and grotesque” and an “utter travesty of justice.”
According to Turley:
Previously undisclosed documents in the case of former national security adviser Michael Flynn offer us a chilling blueprint on how top FBI officials not only sought to entrap the former White House aide but sought to do so on such blatantly unconstitutional and manufactured grounds.
[…]
The new documents also explore how the Justice Department could get Flynn to admit breaking the Logan Act [(18 U.S.C. §953)], a law that dates back to from 1799 which makes it a crime for a citizen to intervene in disputes between the United States and foreign governments. It has never been used to convict a citizen and is widely viewed as flagrantly unconstitutional. [Jonathan Turley “Michael Flynn case should be dismissed to preserve justice“, The Hill, 30 April 2020.]
Or, in Robert H. Jackson’s prophetic words: “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.”
Not only has the 1799 Logan Act, never been used to convict anyone, but it has been repeatedly violated:
In modern times, many prominent individuals—like Jesse Jackson, Danny Glover, Sean Penn, Dennis Rodman, Ted Kennedy, and John Kerry–have violated the act, some repeatedly. Even if the act could be applied to many private individuals, it makes no sense to apply it to an appointee of an incoming administration whose duties include speaking with representatives of foreign governments. In fact, the motion to dismiss admits that “the Logan Act would be difficult to prosecute.” [John G. Malcolm Zack Smith Hans von Spakovsky, “Michael Flynn Seems to Finally Be Getting the Justice He Deserves“, The National Interest, 8 May 2020]
Even worse, it appears McCabe, Strzok, Comey, and various “FBI officials also lied and acted in arguably criminal or unethical ways, but all escaped without charges” according to Turley:
McCabe had a supervisory role in the Flynn prosecution. He was then later found by the Justice Department inspector general to have repeatedly lied to investigators. While his case was referred for criminal charges, McCabe was fired but never charged. Strzok was also fired for his misconduct in the investigation. Comey intentionally leaked FBI material, including potentially classified information but was never charged. Another FBI agent responsible for the secret warrants used for the Russia investigation had falsified evidence to maintain the investigation. He is still not indicted. The disconnect of these cases with the treatment of Flynn is galling and grotesque.
[…]
Mueller had ignored the view of the investigators and coerced Flynn to plead to a crime he did not commit to gain damaging testimony against Trump and his associates that Flynn did not have.
Let us recall Jackson’s words again “It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.”
I expect the twists and turns in the Flynn case will eventually make its way into a blockbuster movie — I can see Rob Lowe easily playing Michael Flynn, but in the meantime for a breakdown of the Flynn saga, read “Michael Flynn Seems to Finally Be Getting the Justice He Deserves” and “Michael Flynn case should be dismissed to preserve justice.”