Martin Schram: The making and unmaking of a federal case

Martin Schram: The making and unmaking of a federal case

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Martin Schram

Three years ago, three-star Army Gen. Mike Flynn, President-elect Donald Trump’s incoming national security adviser, fashioned out of whole cloth a false scenario about what he said in a 2016 phone call with Russia’s ambassador.

And when he told his whole-cloth lies to the FBI in 2017, it became a federal crime.

But this month, the ever-creative Attorney General William Barr found a deceptively simple way to please his Maximum Boss and big-time Flynn fan: Barr just had his Justice Department declare that, in this FBI investigation, Flynn’s whole-cloth falsehoods simply weren’t “material” after all. (Sometimes English has a confounding way of making us feel like our native tongue must be our second language.)

Barr had his D.C. ally, local U.S. Attorney Timothy Shea, sign a U.S. District Court motion that concluded: “In the case of Mr. Flynn, the evidence shows his statements were not ‘material’ to any viable counterintelligence investigation — or any investigation for that matter — initiated by the FBI.”

With that, Barr’s Justice Department moved to withdraw Flynn’s two guilty pleas and end the whole thing by arguing that what really happened didn’t legally happen at all.

Now a U.S. District Court judge will decide whether to accept Barr’s 180-degree reversal. If he does, it will mean yet another Barr Era unraveling of justice.

As federal cases go, this one had seemed like a slam-dunk. You won’t be surprised to discover (but Flynn somehow was!) that this December 2016 phone call with Russian Ambassador Sergey Kislyak was one call that had many official ears. And one transcript.

The facts of this case are rather basic: The transcript reportedly showed Flynn advising the ambassador that Russia would be wise not to respond to the Obama administration’s new sanctions on Russia for its efforts to interfere in the 2016 election.

But when the FBI interviewed Flynn in 2017 and asked about what he had told the ambassador, Flynn insisted that the sanctions never came up. Oops. Flynn repeated the same lies to Vice President Mike Pence and other top Trump advisors, who repeated Flynn’s denials to reporters.

Consider what that knowledge means in the world of spy versus spy intrigues: It meant the FBI realized that Flynn was now a prime target for possible Russian blackmail.

After all, Russia knew Flynn had lied to Pence and others about what he really told Kislyak. So the FBI warned the White House of Flynn’s potential blackmail problem. Then when nothing was done about it, they summoned Flynn to that investigative interview. That’s when Flynn made his dreadful situation even worse – by lying to the FBI. We’ll soon see whether a U.S. District Court judge accepts Barr’s reversal bid.

Time Out: Now that we’ve listed all of Flynn’s wrongs, we need to note that Flynn’s FBI interrogators had also been committing transgressions that are abhorrent, unprofessional and warrant condemnation. FBI interrogators and others had often exchanged emails and texts that contained politically prejudicial anti-Trump comments that should never have been typed by professional investigators – and should never have been tolerated by their superiors.

It is exactly the sort of investigative misconduct that young investigative journalists are warned never to do – because if it is subpoenaed or falls into the wrong hands, it can be used in a libel trial as evidence of bias, motive or malice.

It was shocking to see FBI professionals commit what I always considered a rookie cub reporter’s mistake. It was an especially stupid thing to do in today’s hypercharged era.

Frankly, it has also been wrong and often reprehensible to watch this attorney general working to so please his Maximum Boss that he’s been willing to subvert even the system of justice, time and again.

Which is why I was pleased to note one positive observation Barr made when he disclosed his unfortunate Flynn reversal. Barr told CBS News: “Partisan feelings are so strong that people have lost any sense of justice.”

Indeed. And on the very day Barr said that, we saw a prime example of how those strong partisan feelings can unravel, even in a celebratory news conference. It happened just six blocks up Pennsylvania Avenue from the AG’s office, where the boss Barr always aims to please was boasting to reporters about Flynn’s good news – and just sort of lost it, as he so often does:

“I hope a lot of people are going to pay a big price because they’re dishonest, crooked people. They’re scum — and I say it a lot, they’re scum, they’re human scum. This should never have happened in this country.”

No wonder there’s a whole lot of whole-cloth lying littering Pennsylvania Avenue these days.

Martin Schram, an op-ed columnist for Tribune News Service, is a veteran Washington journalist, author and TV documentary executive. Readers may send him email at


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