May 08 2020
Another day, another egregious example of prosecutorial abuse by the federal government. The American people need stronger protections against federal law enforcement malfeasance, and we can secure more protections next week with real FISA reform.
This week, new documents from the FBI investigation of former-National Security Advisor Michael Flynn were released to the public and they paint a troubling picture of FBI agents and officials bending the rules to entrap an innocent American who committed no crime.
On January 24th, 2017, FBI agents Peter Strzok and Joe Pientka interviewed Flynn as part of Special Counsel Robert Mueller’s investigation into the since-disproven Russia collusion investigation. FBI regulations require notes about interviews to be submitted five days after the interview.
But Strzok and Pientka took three weeks, not five days, to submit their notes. Worse, during that time Strzok consulted with FBI lawyer Lisa Page, who he was having an extra-marital affair with at the time, about how to best edit the notes of the Flynn interview. FBI regulations specifically forbid personnel not at the interview from helping to edit interview notes.
The FBI then used these heavily doctored notes to prosecute Flynn, not for any real underlying misconduct, but for lying to the FBI during the interview that the FBI completely botched according to the Department of Justice’s own regulations.
Thankfully the Department of Justice has since reversed course and dropped the prosecution of Flynn. Attorney General Barr should be applauded for assigning General Flynn’s case to U.S. Attorney Jeff Jensen for review.
The botched Flynn investigation comes on the heels of a DOJ Inspector General report showing that there were 17 separate significant errors or ommissions in the Foreign Intelligence Surveillance Act (FISA) application to spy on Trump campaign official Carter Page, and another DOJ IG report showing that FBI malfeasance is common and widespread throughout the FISA system.
Our federal government’s law enforcement procedures are desperately in need of reform and we have a real opportunity to begin that reform next week when the FISA program comes up for reauthorization.
Sen. Pat Leahy (D-VT) and I have a bi-partisan amendment that will strengthen third-party oversight of the FISA process. Specifically our bill requires FISA court judges to appoint an amicus curae (a neutral third-party observer) in any case involving a “sensitive investigative matter” so long as the FISA court does not determine it to be inappropriate. This would apply to the FBI investigation of the Trump campaign.
The amendment would also empower the amicus to raise any issue with the court at any time and give both the amicus and the FISA court access to all documents and information related to the surveillance application.
This amendment will not solve every problem of incompetence and malfeasance at the FBI, but it is a good first step.