How would you like to be investigated by the FBI because you disagreed with the president’s policies? Sounds a little KGB-ish, you might think — and you’d be right, because the FBI has zero authority to conduct such an investigation. But the more we learn about the FBI’s investigation of Michael Flynn, the more it appears he was targeted precisely because, as the national security adviser to the incoming Trump administration, he signaled that the new administration might undo Obama administration policies — which is kind of what the American people voted for in 2016.
Some will say that Gen. Flynn was investigated for legitimate criminal or national security reasons. Yet, the FBI’s ultimate interview of Flynn addressed none of the grounds that the FBI used to open the original case against him. For those of us who have run FBI investigations, that is more than odd.
Heavily redacted FBI documents that have been released indicate Flynn was one of several Trump campaign members who merited their own subfile investigation under the larger, now infamous “Crossfire Hurricane” debacle. Flynn even got his own cool codename — “Crossfire Razor.” (No, the FBI isn’t usually that absurd. But absurdity colored that entire period of time.)
For the record, Flynn clearly exercised poor judgment as a result of being interviewed by the FBI. The larger question is whether the team under then-Director James Comey had a legitimate basis to conduct the interview at all.
FBI documents show that a Foreign Agent Registration Act (FARA) case was opened against Flynn. The stated reasons, in rank order, for initiating the investigation were that he was a member of the Trump campaign; he had “ties” to various Russian state-affiliated entities; he traveled to Russia; and he had a high-level top-secret clearance — for which, by the way, he was polygraphed regularly to determine if he was a spy.
None of the listed reasons is unusual activity for the kind of positions he held. Overall it is pretty thin justification for investigating an American citizen. Yet, most chillingly, the Crossfire Hurricane team stated it was investigating Flynn “specifically” because he was “an adviser to then Republican presidential candidate Donald J. Trump for foreign policy issues.”
Let me be clear: That is not a legitimate justification to investigate an American citizen.
There is a theme that runs through the entire Crossfire Hurricane disaster, which has been publicly articulated by Comey and his deputy director, Andrew McCabe: They saw themselves as stalwarts in the breach defending America from a presidential candidate who they believed was an agent of Russia.
The Comey team’s misadventures became a boogeyman pursuit fueled by self-reinforcing paranoia and/or bias that saw spies — who just happened to belong to one particular political party — behind every tree. Explainable and not-so-unusual behaviors were viewed through a sinister prism of suspicion that ended up hurting a lot of people for no good reason.
On Jan. 4, 2017, two weeks before the Trump inauguration, FBI agents at a lower level — where the real work is done — prudently tried to close the Flynn investigation, citing the absence of any derogatory information or other facts that would enable the bureau to keep the case open.
Shockingly, the closing document also stated that there never had been any facts that indicated Flynn was possibly acting as an agent of a foreign power. In other words, there was no basis for investigating Flynn in the first place, and therefore no justification for any further actions. Despite this, the Comey team intervened, halted the case closure, and started laying plans to confront Flynn. The only problem was, they had no legal basis to conduct an investigative interview with him.
What they suddenly did have was a phone conversation between Flynn and Sergey Kislyak, then Russia’s ambassador to the U.S., intercepted a week prior. This set off alarm bells in the Obama administration because the discussion signaled a departure by the new administration from Obama foreign policy on two key issues.
Flynn’s participation in the Kislyak conversation was not illogical, given his new role as incoming national security adviser. The call contained no reasonable criminal or national security violation on his part. Nevertheless, Comey, McCabe and others appeared anxious to find a way to justify interviewing Flynn. Four pages of FBI notes and emails released within the past week seem to indicate that the Comey team strategized around an interview approach that might elicit false statements from Flynn, which could be used to damage him.
These recently released notes and emails are over three years old. That they weren’t turned over to Flynn’s defense team in a timely manner is a legal earthquake that the court will have to sort out; it’s not clear whether this was a failure by the FBI or the special counsel, but the FBI is sporting the black eye right now. The slow dribble of damaging revelations is doing nothing to rehabilitate the FBI’s reputation.
There is now no doubt that the Comey team wanted a more confrontational interview about the nature of Flynn’s phone call with Kislyak. It is clear that the outgoing administration was upset with the substance of that call, and President Obama’s dislike of Gen. Flynn was well known.
What’s less clear is whether the Comey team targeted Flynn for an interview at the behest of the Obama White House or simply to curry favor. Either option is abhorrent, and each should be investigated.
In the end, the Comey team forced a meeting with Flynn, ignoring protocols and, in Comey’s own words, took advantage of a new, disorganized Trump administration. They had no legal basis for being in Flynn’s office and confronting him.
The FBI 302 documenting the interview of Flynn shows that it did not probe possible violations of any criminal statute or examine counterintelligence issues. Instead, it focused on exploring what the Trump administration might do differently than the Obama administration. In other words, it was an interview about policy differences between two presidencies.
If one were to chisel a “Ten Commandments of the FBI” and descend with them, Charlton Heston-like, from Mount Capitol Hill, the first commandment would read: “Thou shalt not involve thyself with the politics of the White House.”
A politically manipulated FBI is a threat to the nation. An independent FBI is and has been a blessing to the nation, and is one of the key reasons America is different from totalitarian regimes. That is why the Comey legacy must be thoroughly examined and reforms enacted as needed. It is vital to all of us.
Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public safety agencies on strategic mission technologies.