Why the Flynn Interview Was Predicated

Barbara McQuade
Wednesday, May 13, 2020, 12:20 PM

The Justice Department’s motion to dismiss the case against former National Security Adviser Michael Flynn is flawed in many ways, but one of its weakest arguments is that the investigation of Flynn was not properly “predicated.”

Michael Flynn attends a campaign rally for Donald Trump in Phoenix, Arizona. (Source: By Gage Skidmore, https://tinyurl.com/ybjzdb4k; CC BY-SA 2.0, https://creativecommons.org/licenses/by-sa/2.0/deed.en)

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The Justice Department’s motion to dismiss the case against former National Security Adviser Michael Flynn is flawed in many ways, but one of its weakest arguments is that the investigation of Flynn was not properly “predicated.” This argument not only lacks merit—it also opens the door to the same frivolous argument from future defendants in other criminal cases. And it creates a dangerous incentive that could dissuade the FBI from fulfilling its duty to fully investigate criminal and national security threats.

Predication is a requirement under the Attorney General’s Guidelines for Domestic FBI Operations, the FBI’s internal guidelines for conducting investigations. To begin an investigation, the bureau must have a predicate—essentially, a factual basis to believe that a crime or national security threat exists. The level of predication required varies with the category of investigation, which ranges from assessments (the least involved level of probe) to preliminary investigations to full investigations. Predication is required to prevent the targeting of subjects for political or other improper reasons, an important reform after abuses of investigative powers in the 1960s and 1970s, but the bar is low. Even the highest level of cases, full investigations, requires as predication only “an articulable factual basis for the investigation that reasonably indicates” a threat to the national security.

Depending on the category under which a case is opened, the guidelines permit investigative techniques with varying degrees of invasiveness. For example, electronic surveillance may be used in a full investigation but not in an assessment or preliminary investigation. Importantly, all three categories permit FBI agents to interview a subject.

Attached as an exhibit to the Justice Department’s motion to dismiss is the FBI’s opening documentation for the investigation into Flynn—a subfile of the umbrella investigation into Russian election interference, known as Crossfire Hurricane. When large investigations are opened, subfiles are often opened on individual targets for purposes of administrative efficiency and division of labor. Dated August 2016, the FBI documentation stated that there was an articulable factual basis that Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.” The file noted further that “Flynn was an advisor to the Trump campaign, had various ties to state-affiliated entities of Russia, and traveled to Russia in December 2015.”

According to the Justice Department inspector general, the Flynn investigation was properly predicated as a full investigation. In his report on the FBI’s conduct in the Russia investigation, the inspector general stated, “[T]he quantum of information articulated by the FBI to open these individual investigations [that is, the investigations into Flynn as well as Carter Page, George Papadopoulos and Paul Manafort] was sufficient to satisfy the low threshold established by Department and FBI predication policy, particularly in the context of the FBI’s separate and ongoing investigative efforts to address Russian interference in 2016 U.S. elections.”

Key to the Justice Department’s argument in its motion to dismiss is the fact that, after four months of investigation without finding any derogatory information, the FBI was prepared to close its case on Flynn. A draft internal FBI document dated Jan. 4, 2017, shows that the bureau had sketched out a memo closing the probe, though the document includes the usual caveat that if new information were identified, the FBI would consider reopening the investigation.

But before the case was actually closed, the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016. According to the Justice Department’s motion, the FBI had transcripts of the relevant calls, likely obtained through surveillance of Kislyak authorized by the Foreign Intelligence Surveillance Court. By this time, Flynn had been named as Trump’s national security adviser.

In those calls, Flynn had asked Russia not to retaliate for sanctions imposed by the Obama administration as punishment for election interference. Flynn had also asked Russia to vote against a United Nations resolution regarding Israeli settlements. On their face, these calls potentially undermined the foreign policy of the United States. What’s more, on Jan. 15, 2017, Mike Pence, then the vice president-elect, made public statements that contradicted the transcripts of Flynn’s calls— a fact that, as documented in the Mueller report, “alarmed senior DOJ [Department of Justice] officials. And so, the FBI decided to keep the investigation open. FBI agents interviewed Flynn on Jan. 24, four days after Trump took office. During that interview, Flynn falsely denied his statements regarding sanctions and the U.N. vote. He later pleaded guilty to one count of false statements for telling these lies.

The Justice Department now insists that the Kislyak call did not establish adequate predication for the FBI to conduct this interview. But there was no need for new predication for the interview—because predication had already been established. The case was still open after having been properly predicated, as found by the inspector general. Conducting an interview would have been a perfectly appropriate investigative step even if the FBI had not come across any new information. Interviews are frequently conducted at the end of a case to fill in gaps in evidence, explain events, assess a potential threat or satisfy agents that they have not missed any important facts. In the investigation of Hillary Clinton’s emails, for example, Clinton’s FBI interview was the last step in the investigation before it was closed—and then reopened months later.

But even if new predication were somehow required, the content of Flynn’s calls, along with his apparent lies to Pence, provided a sufficient factual basis for further inquiry. The Justice Department motion argues that predication was lacking because the only potential crime at issue was the Logan Act, forbidding private citizens to negotiate with foreign governments—which has rarely been invoked, and which the Justice Department acknowledged at the time of the Flynn investigation would be difficult to prosecute. But this focus on the Logan Act completely ignores the counterintelligence purpose of the investigation, which was to determine whether Flynn posed a national security threat. By lying to Pence about facts known to Russia, Flynn had compromised himself as national security adviser. Flynn, who had access to the nation’s most sensitive secrets, was now susceptible to blackmail by a hostile foreign adversary. Surely this constitutes “an articulable factual basis for the investigation that reasonably indicates” a threat to the national security.

Even if one were to accept the Justice Department’s absurd arguments that fresh predication was needed and that this new information was insufficient for a full investigation, the Kislyak call certainly would have been enough for a preliminary investigation—which may be predicated on the basis of the lower standard of “information or an allegation indicating the existence” of a threat to the national security.

Or, at the very least, this new information justified an assessment, which requires no predication at all. An assessment requires only an “authorized purpose” to “obtain information about, or prevent or protect against” threats to the national security. According to the Attorney General’s Guidelines, assessments are appropriate when techniques such as interviews “can avoid the need to proceed to more formal levels of investigative activity, if the results of an assessment indicate that further investigation is not warranted.” Under any of these standards, an interview was appropriate.

In the short term, the Justice Department has harmed not only its own reputation for integrity through filing the motion to dismiss but also public confidence that the law applies equally to everyone, including the president’s friends. It is telling that prosecutor Brandon Van Grack, who worked on the case for more than two years, withdrew on the day the motion was filed and that no career prosecutor signed the filing.

But what about the long-term consequences? When I worked at the Department of Justice as a national security prosecutor, there was a phrase we often used to describe the dangers of inaction: “He who does nothing does nothing wrong.” The phrase suggests shirking one’s duty for fear of making a mistake, exactly the wrong instinct when national security is on the line. Justice Department and FBI employees who have watched the drama of the Flynn case unfold may feel a chilling effect from watching the department not only unwind a case but also attack the reputations of public servants who made difficult decisions under unprecedented circumstances. As national security threats arrive in the future, there is a risk that the incentive is no longer to take swift action but, instead, to do nothing wrong.

Barbara McQuade is a professor from practice at the University of Michigan Law School. From 2010 to 2017, she served as the U.S. attorney for the Eastern District of Michigan. She also served as vice chair of the Attorney General’s Advisory Committee and co-chaired the Terrorism and National Security Subcommittee. McQuade previously served as an assistant U.S. attorney in Detroit for 12 years.

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