Americans considering the contents of the documents that have been released over the past several days regarding the investigation and prosecution of President Donald Trump’s former national security advisor Gen. Michael Flynn are right to greet them with a mixture of anger and fear. But they should also feel lucky. To understand why, it is worth considering the parallels between the nature of the Flynn prosecution and the ouster of Israel’s acting State Prosecutor Dan Eldad last week.
General Flynn’s name is a dim memory for most people, certainly for non-Americans. The 33-year veteran intelligence officer who oversaw all intelligence operations of U.S. forces in Afghanistan and then served as the Director of the Defense Intelligence Agency was a blip on the screen in the early, tumultuous days of the Trump administration. He served just three weeks in the White House before he was forced to resign under a pall of controversy over alleged misdeeds with Russian officials in mid-February 2017.
After ten months of an aggressive prosecution at the hands of Special Counsel Robert Mueller marked by an endless stream of derogatory media coverage accusing Flynn of everything from serving as an agent of the Turkish government, to bedding down with a Russian spy, to treason, Flynn pled guilty of one count of lying to FBI investigators during a conversation he participated in on his second day at the White House.
In January, after firing his lawyers and replacing them with new counsel, Flynn asked to the Federal District Court in Washington to withdraw his guilty plea. He explained that his plea had been extorted from him by the prosecutors who threatened to prosecute his son. His legal team, he explained had hidden conflicts of interests from him that should have caused them to end their relationship with Flynn well before he agreed to plead guilty.
Flynn’s supporters have long argued that Flynn was deliberately targeted for destruction by the Obama administration and the intelligence community’s leadership which had been politicized during Barack Obama’s presidency. Both during his tenure as the chief intelligence officer in Afghanistan and during his term as DIA chief, Flynn was a firsthand witness and outspoken critic of the politicization of intelligence by Obama and his advisors.
Among other things, Flynn rejected Obama’s claim that al Qaeda was in disarray. He foresaw and warned in granular detail of the rise of ISIS following the U.S. sudden withdrawal from Iraq in 2011 and its failure to adequately assist the forces fighting Syrian President Bashar Assad.
For his efforts, Obama fired Flynn from his position as DIA director in 2014.
During the 2016 election Flynn served as a close advisor to then candidate Trump and pledged to help Trump “drain the swamp” of Washington. The Obama intelligence chiefs were so concerned about Flynn returning as national security advisor that during his meeting with president-elect Trump immediately after the election, Obama himself explicitly urged Trump not to appoint Flynn.
The public campaign to demonize Flynn went into high gear in the final weeks before Trump’s inauguration. On January 12, 2017, Washington Post columnist David Ignatius published details of a phone conversation Flynn had with Kislyak during the presidential transition. The transcript, clearly gained through an NSA wiretap of Kislyak’s phone, was a top-secret document. The official who leaked it committed a felony.
The narrative was spawned that during the course of the conversation Flynn promised to withdraw sanctions against Russian diplomatic personnel that had been announced by Obama in the final weeks of his administration. Further damaging – and incorrect – reports were published alleging untoward ties between Flynn and the Kremlin and Flynn and Turkey.
On January 24, 2017, Flynn’s second day in the White House, he met with two FBI investigators. The investigators did not inform him that he was the subject of an investigation and went to great lengths to prevent him from having a lawyer present during the meeting. It was during that meeting that Flynn allegedly misinformed the agents about his conversation with Kislyak – a transcript of which they had.
In February, Flynn was forced to resign from the White House.
Throughout the prosecution of his former aide, Trump was constrained from defending him because Trump himself was under investigation by Mueller and his team. Had Trump defended Flynn, he would have been pilloried by the media for acting in an apparent conflict of interest. Moreover, to receive leniency from the prosecutors, Flynn agreed to work with the Mueller team, which was seeking information to use against Trump.
When, after nearly two years of a fruitless effort to dig up dirt against Trump that could form the basis of an indictment, Mueller finally declared defeat and ended his probe, Trump appointed William Barr to serve as Attorney General. Barr in turn appointed two U.S. attorneys from outside Washington to investigate the origins of the FBI probe and special counsel probe of Trump and his campaign advisors for alleged collusion with Russia and to investigate the handling of the Flynn prosecution.
Last week, Jeff Jensen, the U.S. Attorney in Missouri Barr charged with investigating the Flynn probe released FBI and Justice Department documents that indicate that as Flynn claimed in his request to vacate his guilty plea, Flynn was the victim of prosecutorial abuse. The FBI agents sent to the White House on January 24 knew that he had done nothing wrong because on January 4, the field agents investigating Flynn had already signed a document recommending the probe against him be closed due to lack of evidence that he acted improperly. But in a preparatory meeting with the FBI’s senior leadership, the investigators were instructed, as one agent put it in a handwritten note released by Jensen, “to get him to lie, so we can prosecute or get him fired.”
Again, the urgency of removing Flynn owed to his intimate familiarity with the corruption of U.S. intelligence agencies during the Obama presidency. But as former federal prosecutor Andy McCarthy argued following the document release, it was likely also to prevent Trump from finding out that he himself was under investigation. McCarthy noted that of all the senior members of the new Trump administration, Flynn was the only one who was in a position to recognize that the leadership of the FBI under James Comey and the Obama holdovers in other agencies were carrying out an unjustified investigation of Trump. Were the new president to become aware of that fact, he would have ordered the investigation closed and fired all involved. Removing Flynn was a matter of utmost urgency for that reason, specifically.
This then brings us back to Israel, and the forced departure of acting state prosecutor Dan Eldad.
Attorney General Avichai Mandelblit went into paroxysms of rage when Justice Minister Amir Ohana appointed Eldad to serve as acting state prosecutor. Mandelblit far exceeded his powers to slander Eldad, a seasoned senior prosecutor who had served for decades without blemish to his record.
Since last November, when Mandelblit’s crony Shai Nitzan finished his tenure as state prosecutor, Mandelblit has ferociously attacked every attempt by Ohana to appoint a successor. He has repeatedly tried to force Ohana to appoint another Mandelblit crony to the position.
A week and a half ago, Mandelblit sent an hysterical letter to the government service ombundsman demanding that Eldad be immediately removed from office for what Mandelblit alleged was grossly unprofessional activity.
With few exceptions – all senior members of the state prosecution signed a letter supporting Mandelblit’s assault against Eldad and demanding Eldad’s removal. The letter was drafted by Nurit Litman, one of the prosecutors Mandelblit tried to force Ohana to appoint to the position.
In response to Mandelblit’s attacks, Eldad wrote a letter to the government service ombundsman denying Mandelblit’s charges and informing him that Mandelblit’s anger owed to Eldad’s efforts to investigate allegations of alleged criminal activities by Mandelblit.
Since he was appointed to serve as Attorney General in 2016, Mandelblit has been fighting claims that during his service as IDF Military Advocate General, he committed felony offenses in his handling of a criminal probe against then chief of general state and current nominee to serve as the next Defense Minister, Lt. Gen. Gabi Ashkenazy.
A group of pro-Mandelblit attorneys submitted a petition to the Supreme Court demanding that Eldad be required to leave his office when his initial three-month tenure ended at the beginning of May. The petitioners waited to file their petition until Mandelblit’s friend, former attorney general and current Supreme Court Justice Meni Mazuz was the on duty judge. Mazuz issued an order for Eldad to vacate his position and barring Ohana from reinstating him for an additional six months, as he was expected to do.
Without legal authority, Mandelblit then sent off a letter to the government service ombundsman announcing that he was appointing himself to serve as acting state prosecutor.
Ohana appealed Mazuz’s judgment to Supreme Court President Esther Hayut on Wednesday, but she is not expected to take any action on his petition. And in the meantime, Mandelblit has full access to all of the files in the State Prosecutor’s office.
As things stand now in the Flynn case, Trump has made clear that if the Federal District Court fails to dismiss the case against his former advisor, Trump will pardon him.
Attorney General Barr was able to turn the tables on the crooked investigators who abused their power to destroy Flynn because the federal prosecution in the United States is controlled by elected officials. For every member of the Obama-era governing clique in Washington, there is an equal if not larger number of independent prosecutors outside of Washington. So Barr had honest, unbiased prosecutors to whom he could turn to competently investigate the investigators.
Ohana is just as keen to clear out the stables of Israel’s state prosecution as Barr is to conduct housecleaning in Washington. But unlike Barr, he lacks the capacity to do so. Only four members of the state prosecution opted not to sign the letter attacking Eldad. Everyone else is loyal to Mandelblit.
In 2016, Nitzan forced retired District Judge Hila Gerstel to resign as comptroller of the State Prosecution after he subverted all of her efforts to enforce controls and discipline prosecutors for serial abuses. After her resignation, Nitzan and Mandelblit ensured that no successor would have any oversight power to discipline prosecutors.
The witch hunt and subsequent legal persecution of Flynn should terrify Americans. If it happened to a three-star general, obviously, it can happen to anyone. But Americans should also take heart. At least, at the end of the day, justice can prevail in the American criminal justice system. There is hope.
In Israel, as Mandelblit’s outrageous treatment of Eldad, and the prosecutors’ lockstep support for his scandalous actions make clear, the road to justice is much longer and uncertain, if it exists at all.