How Michael Flynn’s Case Could Prove Democrats Wrong About Federal Agencies’ Abuse Of Courts

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For several years I spent a few weeks each summer directing a “law camp” for high school students, typically rising seniors. We explored our constitutional republic and various areas of substantive law, put on a mock trial, and visited representatives of the three branches of government, including a senior assistant U.S. attorney.

In speaking with the students, the AUSA always began by pointing to the seal of the Department of Justice, Qui Pro Domina Justitia Sequitur—literally “Who For Lady Justice Strives”—explaining the English adaptation continues to govern his every deed: “The United States Wins Its Point Whenever Justice Is Done Its Citizens In the Courts.”



It’s been a decade since I last entered the grand jury room to hear those words repeated to a new group of students. The AUSA has also since retired. The developments of the last year make me wonder if Lady Justice has, as well, and if so, whether anyone really cares.

It seems not. Evidence continue to mount that in the waning days of the Obama administration, career and political appointees alike abused their investigative and prosecutorial powers. The most recent and most shocking misconduct concerns the Foreign Intelligence Surveillance Act (FISA) warrant process. Yet the media ignored or obfuscated the revelations of both the Nunes memo and the Grassley-Graham criminal referral.

Then with Saturday’s release of the House Democrats’ response under the leadership of Rep. Adam Schiff (D-California), the narrative quickly turned to claims that charges of FISA abuse have been refuted. They have not.

Despite Democrat Claims, FISA Abuse Remains

First, while the Democrats justify omitting information federal intelligence agencies presented to the FISA court to obtain surveillance powers on a U.S. citizen, it is an abuse of this secret-court system to withhold details that could bear on the court’s decision. That is true regardless of whether the information withheld reaches the legal threshold of materiality, a question that concerns the admissibility of evidence in a subsequent trial, not the propriety of prosecutorial conduct.

I remain convinced that the information withheld was material. But even if the omissions were immaterial, Americans of all stripes should be concerned that prosecutors hold the power to unilaterally decide whether to share potentially exculpatory or impeachment evidence with a secret court when that evidence, under normal circumstances, will never come to light should the target later be charged criminally.

Second, the Democrat response counters claims of misconduct by stressing that the FISA application “made only narrow use of information from [Christopher] Steele’s sources about [Carter] Page’s specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials.” But that information provided the lynchpin for claims that Page engaged in criminal conduct—something necessary under FISA to obtain a warrant against a U.S. citizen. Significantly, that information also came from unnamed Russian sources and was not corroborated. As I explained at length before, a court cannot find probable cause based on such uncorroborated hearsay.

Third, Schiff’s rebuttal highlights investigators’ interest in Page prior to receiving the Steele dossier funded by Hillary Clinton’s campaign and the Democratic National Committee, as well as evidence indicating Page served as a foreign agent. But none of that evidence indicates Page had committed a federal crime. Only the hearsay from the Steele dossier did that and, as just noted, that is not enough.

The Abuse Flagged Is Real and Hasn’t Been Addressed

The Democrat response deflects legitimate concerns raised in the Nunes memo and Grassley-Graham referral. That is tragic because, even assuming the Republicans acted with the worst of partisan motives, the legislators raised real instances of prosecutorial abuse that merit redress.

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I hope with all my heart you are right. When I worked I was a bean counter. My last law class was ’63; that was contracts, corporations, partnerships…. Not this kind of law.
What you say sounds good; but I clearly am biased.
Nothing would please me more than seeing THE DEEP STATE super beating, after beating, after beating until it died.

I will know it is dead when every person hired by: Mueller, Petraeus, Clapper, Lynch + Comey is out of work. I am not going to hold my breath!

Yet the media ignored or obfuscated the revelations of both the Nunes memo and the Grassley-Graham criminal referral.

Remember, the ends justifies the means. Liberals (which includes the media) are OK with abuses as long as they are aimed at the “enemy”, i.e., anyone impeding the spread of socialism.