In a shocking editorial with the New York Times, Mary B. McCord, the acting assistant attorney general for national security at the Justice Department from 2016 to 2017, said that Attorney General Bill Barr twisted her words to justify letting Michael Flynn off.
Writing Sunday, McCord noted that the move by the Justice Department to dismiss charges against Flynn because prosecuting him "would not serve the interests of justice."
After a decades-long career under both GOP and Democratic presidents, McCord said the "302" report shows the disagreements among the leadership about how to handle Flynn's illegal actions.
"But the report of my interview is no support for Mr. Barr's dismissal of the Flynn case. It does not suggest that the FBI. had no counterintelligence reason for investigating Mr. Flynn," wrote McCord. "It does not suggest that the FBI's interview of Mr. Flynn — which led to the false-statements charge — was unlawful or unjustified. It does not support that Mr. Flynn's false statements were not material. And it does not support the Justice Department's assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, 'would not serve the interests of justice.'"
She explained why, using only the documents the government has filed in court or released publicly.
"Notably, Mr. Barr's motion to dismiss does not argue that the FBI. violated the Constitution or statutory law when agents interviewed Mr. Flynn about his calls with Mr. Kislyak," she said. "It doesn't claim that they violated his Fifth Amendment rights by coercively questioning him when he wasn't free to leave. Nor does the motion claim that the interview was the fruit of a search or seizure that violated the Fourth Amendment. Any of these might have justified moving to dismiss the case. But by the government's own account, the interview with Mr. Flynn was voluntary, arranged in advance, and took place in Mr. Flynn's own office."
She said that without violations of the Constitution or statues, the Barr-Shea motion is a "contorted argument" that Flynn lying wasn't important to the case, so it doesn't matter.
"Materiality is an essential element that the government must establish to prove a false-statements offense. If the falsehoods aren't material, there's no crime," she explained.
Barr's "materiality theory" is concocted by saying the FBI shouldn't have been investigating Flynn in the first place. The DOJ claims that the FBI opened an investigation into Flynn in 2016 as part of the investigation into Trump and the Russia scandal, and it intended to close it in early Jan. 2017 until the conversation occurred where Flynn told Kislyak they'd be relaxing sanctions against Russia for election intrusion.
"Discounting the broader investigation and the possibility of Russian direction or control over Mr. Flynn, the department's motion myopically hones in on the calls alone, and because it views those calls as 'entirely appropriate,' it concludes the investigation should not have been extended, and the interview should not have taken place," said McCord.
Nothing she said in her account supports the DOJ's conclusion, McCord explained. "It is disingenuous for the department to twist my words to suggest that it does."
The account of her interview is a difference of opinion about what to do about Flynn lying to incoming Vice President Mike Pence and others in the administration. Such a lie opens Flynn up to being blackmailed by any government who threatened to out him for the lie.
"This is where the FBI disagreed with the Justice Department's preferred approach," wrote McCord. "The FBI wasn't ready to reveal this information to the incoming administration right away, preferring to keep investigating, not only as part of its counterintelligence investigation but also possibly as a criminal investigation. Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low (the act prohibits unauthorized communications with foreign governments to influence their conduct in relation to disputes with the United States), we certainly agreed that there was a counterintelligence threat."
That's why they were so eager to warn the incoming administration about the dangerous situation they were in with Flynn as the new Director of National Intelligence.
"By the time Justice Department leadership found out, agents were en route to the interview in Mr. Flynn's office," she explained.
Her July 2017 interview was about her frustration with the FBI's conduct using language like "flabbergasted" to describe the reactions. They weren't necessarily opposed to the interview with Flynn, and it was more about notification than anything. She also said that interviews with Flynn should have been at the Justice Department, not the White House. There are protocols that should have been followed, and she said former FBI Director James Comey didn't. Nor was the DOJ consulted.
"The Barr-Shea motion to dismiss refers to my descriptions of the FBI's justification for not wanting to notify the new administration about the potential Flynn compromise as 'vacillating from the potential compromise of a 'counterintelligence' investigation to the protection of a purported 'criminal' investigation,'" McCord quoted. "But that 'vacillation' has no bearing on whether the FBI was justified in engaging in a voluntary interview with Mr. Flynn. It has no bearing on whether Mr. Flynn's lies to the FBI were material to its investigation into any links or coordination between Mr. Trump's presidential campaign and Russia's efforts to interfere in the 2016 election."
More significant, however, it also has no bearing on whether Flynn's lies to the FBI were material to the situation put himself in when he lied to Pence and the rest of the administration.
"In short," she closed, "the report of my interview does not anywhere suggest that the FBI's interview of Mr. Flynn was unconstitutional, unlawful, or not 'tethered' to any legitimate counterintelligence purpose."