How the FBI Criminalized Trump’s Transition

Where is the ACLU when you really need them?

Michael Flynn, former national security advisor to President Donald Trump, arrives for his plea hearing at the Prettyman Federal Courthouse on December 1, 2017. Chip Somodevilla/Getty Images

What do you call a system of government that cannot tolerate a transition of power without corrupt machinations by those unwilling to cede control? Banana Republic is a term that comes to mind.

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The Special Counsel was appointed to determine whether Russia colluded with Trump to steal the election. Michael Flynn was indicted for a conversation he had with the Russian ambassador on December 28, 2016, seven weeks after the election.

That was the day after the outgoing president expelled 35 Russian diplomats—including gardeners and chauffeurs—for interfering in the election. Yes, that really happened.

The Obama administration had wiretapped Flynn’s conversation with the ambassador, hoping to find him saying something they could use to support their wild story about collusion.

The outrage, for some reason, is not that an outgoing administration was using wiretaps to listen in on a successor’s transition. It is that Flynn might have signaled to the Russians that the Trump administration would have a different approach to foreign policy.

How dare Trump presume to tell an armed nuclear state to stand down because everyone in Washington was in a state of psychological denial that he was elected?

Let’s establish one thing early here: It is okay for an incoming administration to communicate its foreign policy preferences during a transition even if they differ from the lame duck administration.

In 1980, President-elect Reagan’s transition was dominated by negotiations between outgoing President Jimmy Carter and the Iranians about the fate of 52 hostages that were being held in the Tehran.

Carter proposed to the Iranians a series of concessions on sanctions in return for the hostages. The Iranians demanded $24 billion additional dollars.

Even though he had not yet been inaugurated and was still technically a private citizen, Reagan weighed in on the negotiations. He said, “I don’t think you pay ransom for people that have been kidnapped by barbarians.”

That statement scuttled Carter’s negotiations. Edwin Meese later confirmed the statement was part of Reagan’s strategy to put pressure on the Iranians.

If anything, Flynn was too reserved in his conversation with the Russian ambassador. He should have said, “President-elect Trump believes this Russian collusion thing is a fantasy and these sanctions will be lifted on his first day in office.”

That would have been perfectly legal. It also happens to be what FBI Director Comey and the rest were hoping Flynn would do. They wanted to get a Trump official on tape making an accommodation to the Russians.

The accommodation would then be cited to suggest a quid pro quo that proved the nonexistent collusion. Instead, Flynn was uncharacteristically noncommittal in his conversation with the ambassador. Drat!

They did have a transcript of what he said, though. This is where the tin-pot dictator behavior of Comey is fully displayed. He invited Flynn to be interviewed by the FBI, supposedly about Russian collusion to steal the election.

If you’re Flynn, you say, “Sure, I want to tell you 15 different ways that there was no collusion and when do you want to meet.”

What Flynn did not know was that the purpose of the interview had nothing to do with the election. It would be a test pitting Flynn’s memory against the transcript.

Think about that for a moment. Comey did not need to ask Flynn what was said in the conversation with the ambassador—he had a transcript. The only reason to ask Flynn about it was to cross him up.

That is the politicization of the FBI. It is everything Trump supporters rail against when they implore him to drain the swamp. The inescapable conclusion is that the FBI set a trap for the incoming national security advisor to affect the foreign policy of the newly elected president.

Flynn made the mistake of not being altogether clear about what he had discussed with the ambassador. In his defense, he did not believe he was sitting there to tell the FBI how the Trump administration was dealing with Russia going forward. The conversation was supposed to be about the election.

He certainly did not think the FBI would unmask his comments in a FISA wiretap and compare them to his answers. That would be illegal.

Those who opposed the FISA program were outraged that the government would wiretap private citizens without a warrant. To address this concern, the statute included protections for a private citizen inadvertently wiretapped. The citizen’s recorded words would not be unmasked unless doing so was necessary, for instance, to avert a terrorist attack.

Only the most wild-eyed conspiracy theorist would have suggested during the debate that an outgoing administration could use the wiretap to interfere with his successor’s transition. Yet that is what happened here.

Where is the ACLU when you really need them?

If the Special Counsel investigation has proved anything it is that there was no Russian collusion to steal the election. None of the indictments even hint at such collusion. After almost two years of investigation there still is no evidence that Trump and Putin got together to undermine Hillary. There is no there there.

Part of draining the swamp is using the power conferred in the election to protect the presidency. Someone at the Justice Department really ought to make these petty bureaucrats stay within their jurisdictional limits and stop intruding into Trump foreign policy.

Thomas J. Farnan is an attorney from Pittsburgh, Pennsylvania. He can be contacted at and at

How the FBI Criminalized Trump’s Transition