Michael Flynn’s lawyer won’t say that the Federal Bureau of Investigation entrapped him, but that hasn’t stopped a lot of other people from saying it did. The editorial writers of the Wall Street Journal have been the leaders of the pack, calling the former national security adviser to President Donald Trump “the most tragic” of Justice Department Special Counsel Robert Mueller’s “many targets.” Its analysis has been echoed by other conservative voices. White House spokesman Sarah Sanders says Flynn was “ambushed” by a biased FBI.
The Journal has several complaints about the FBI. Andrew McCabe, who was its deputy director in January 2017, encouraged Flynn to meet with agents without a lawyer present. The agents did not warn Flynn that lying to them would be a crime. They did not tell him they already had a transcript of his conversations with the Russian ambassador, which Flynn proceeded to mischaracterize.
James Comey, then the FBI director, has said that typically the White House counsel’s office would have been in the loop. Sanders calls that a breach of protocol, and George Washington University law professor Jonathan Turley has also treated it as an outrage.
Reality check: There is nothing at all out of the ordinary in the FBI’s not warning interviewees that lying to them is illegal. At his sentencing hearing, Flynn said he was aware that it was; he had already admitted that he had continued to lie weeks after the FBI sit-down, when he had counsel and was warned of the consequences of lying. Comey was only saying that a more organized White House would have insisted on counsel’s being present, not admitting that he had “set up” Flynn. Agents are under no obligation to tip off an interviewee about what they know so that he knows what specific lies to avoid.
From time to time people argue that lying to federal law-enforcement agents should not be illegal, especially since the agents are allowed to lie themselves. Perhaps that’s correct, although it’s easy to see how the current rules aid the mission of law enforcement and how changing them would hinder it. But there is no case for having these rules but giving an exemption to Flynn.
What about claims that Flynn has been treated unjustly by people calling him a traitor? Treason is a very serious charge that is tightly defined in federal law but used more casually in common speech. What we know is that Flynn was an unregistered agent for the government of Turkey while being a top adviser to Trump’s presidential campaign. We also know that Judge Emmet Sullivan felt comfortable saying to Flynn, “Arguably, you sold your country out.” It doesn’t sound as though any great injustice was done to Flynn.
The Journal had claimed that poor Flynn “pleaded guilty to avoid bankruptcy and spare his son from becoming a legal target.” Those considerations may well have been on his mind - just as similar ones weigh on many, many people who make plea deals in our criminal-justice system in every jurisdiction of the country on every day. The weight of the available evidence, though, suggests that he may have another reason for his plea: He knew he had committed serious offenses, and he knew that prosecutors had him dead to rights.
Ramesh Ponnuru is a columnist with Bloomberg.