Mary McCord makes an inept attempt to justify persecuting Michael Flynn

Mary McCord was an acting assistant attorney general at the Justice Department ("DOJ").  In that capacity, she was on the Flynn case in January 2017 when the FBI was trying to "prosecute him or get him fired."  On August 10, 2017, the FBI interviewed McCord about those events and prepared a Form 302 reflecting that interview.

In its Motion to Dismiss Flynn, the DOJ relied heavily upon McCord's factual statements in the 302.  On Sunday, the New York Times published McCord's lengthy opinion piece taking umbrage at the fact that the DOJ relied upon her facts to reach conclusions different than those she would have drawn.

It's unnerving to think a career DOJ attorney would be incapable of distinguishing between facts and conclusions or unable to recognize that the same facts can lead to different conclusions.  She seems not to understand that a person analyzing the facts who is not blinded by bias or groupthink (both of which affected McCord) might reach conclusions different from hers.

McCord's Times piece is too long to deconstruct in full here.  A few examples should be enough to show how muddled and prejudiced her thinking is.

To understand the examples, there are a few pertinent facts you need to remember: Robert Mueller, despite his best efforts, was unable to find any hint that Trump or his team colluded with Russia.  Indeed, the FBI knew in January 2017 that there was no Russian collusion.

Regarding General Flynn, by January 4, 2017, the FBI knew that Flynn had not had any dirty dealings with Russia and was prepared to close his file.  FBI management used the Kislyak call to justify keeping the file open.  Flynn's call to Kislyak was an appropriate call for an incoming national security adviser to make.  Moreover, Flynn knew that it was overheard, so he had no incentive to lie to anybody about it.

Now to just a few of McCord's gripes...

In her fourth paragraph, McCord complains that nothing she said in the 302 supported Barr's decision to dismiss the case.  Carefully reading that 302 establishes that the DOJ accurately reported her factual statements.  Thus, she's arguing only that her factual statements led her to a different conclusion from Barr's.  Lawyering 101, however, teaches that "facts are stubborn things" but that the conclusions depend on the applicable law as the judge (or the new boss) interprets it.

In her sixth paragraph, McCord complains that Barr did not argue that the FBI had committed constitutional violations when it interviewed Flynn on January 24.  Instead, the DOJ made a very narrow argument that focuses solely on materiality.  (McCord probably didn't mean to point out that the facts readily support myriad constitutional and statutory arguments, but that's nonetheless what she did.)

What McCord misses is that choosing which argument to make is a matter of both strategy and tactics.  As head of the DOJ, Barr might not have wanted to accuse an institution that reports to him of committing such flagrant constitutional violations.  Or possibly, with John Durham engaging in a criminal investigation, it may have been necessary for Barr to hold his fire.  No matter the reason for Barr's decision, the lack of materiality exists, making it an easy and eminently winnable argument.

Where McCord really goes astray is her claim that Flynn's falsehoods were material.  She contends that Flynn lied to Pence, leading the Russians to believe either that Pence was involved in or the dupe of a conspiracy.  What McCord doesn't realize is that it's her argument that is immaterial, for two reasons.

First, there was no Russian conspiracy!  Her argument matters only if Flynn or anyone else had been conspiring with the Russians.  No one was — and the FBI knew by January 4 that Flynn was not.  That means that any misstatements he made, whether to Pence or the FBI, were irrelevant, not criminal.  The conspirators' hope to use the Logan Act to elevate the Kislyak call to a criminal act only confirms that the FBI knew that Flynn was not conspiring with the Russians.

Second, there's a difference between lying to Pence and lying to the FBI.  Recall that Flynn was prosecuted for lying to the FBI.  However, any misstatements Flynn made to the agents interviewing him were immaterial because (a) the agents had the transcript and knew the truth, so nothing derailed their investigation, and (b) the agents agreed at the time that Flynn wasn't lying.  If he said something inaccurate, it was done innocently and could not be a material lie to the FBI.

McCord is a dullard, for only someone with no understanding of law or logic would argue as she does.

Alternatively, McCord is not a dullard at all.  Instead, she's simply another arrow in the quiver of a panicked Democrat establishment desperately working to destroy Barr to protect itself.  Given her long career, for me to have some semblance of respect for the DOJ as an institution, I almost hope it's the latter.

Mary McCord was an acting assistant attorney general at the Justice Department ("DOJ").  In that capacity, she was on the Flynn case in January 2017 when the FBI was trying to "prosecute him or get him fired."  On August 10, 2017, the FBI interviewed McCord about those events and prepared a Form 302 reflecting that interview.

In its Motion to Dismiss Flynn, the DOJ relied heavily upon McCord's factual statements in the 302.  On Sunday, the New York Times published McCord's lengthy opinion piece taking umbrage at the fact that the DOJ relied upon her facts to reach conclusions different than those she would have drawn.

It's unnerving to think a career DOJ attorney would be incapable of distinguishing between facts and conclusions or unable to recognize that the same facts can lead to different conclusions.  She seems not to understand that a person analyzing the facts who is not blinded by bias or groupthink (both of which affected McCord) might reach conclusions different from hers.

McCord's Times piece is too long to deconstruct in full here.  A few examples should be enough to show how muddled and prejudiced her thinking is.

To understand the examples, there are a few pertinent facts you need to remember: Robert Mueller, despite his best efforts, was unable to find any hint that Trump or his team colluded with Russia.  Indeed, the FBI knew in January 2017 that there was no Russian collusion.

Regarding General Flynn, by January 4, 2017, the FBI knew that Flynn had not had any dirty dealings with Russia and was prepared to close his file.  FBI management used the Kislyak call to justify keeping the file open.  Flynn's call to Kislyak was an appropriate call for an incoming national security adviser to make.  Moreover, Flynn knew that it was overheard, so he had no incentive to lie to anybody about it.

Now to just a few of McCord's gripes...

In her fourth paragraph, McCord complains that nothing she said in the 302 supported Barr's decision to dismiss the case.  Carefully reading that 302 establishes that the DOJ accurately reported her factual statements.  Thus, she's arguing only that her factual statements led her to a different conclusion from Barr's.  Lawyering 101, however, teaches that "facts are stubborn things" but that the conclusions depend on the applicable law as the judge (or the new boss) interprets it.

In her sixth paragraph, McCord complains that Barr did not argue that the FBI had committed constitutional violations when it interviewed Flynn on January 24.  Instead, the DOJ made a very narrow argument that focuses solely on materiality.  (McCord probably didn't mean to point out that the facts readily support myriad constitutional and statutory arguments, but that's nonetheless what she did.)

What McCord misses is that choosing which argument to make is a matter of both strategy and tactics.  As head of the DOJ, Barr might not have wanted to accuse an institution that reports to him of committing such flagrant constitutional violations.  Or possibly, with John Durham engaging in a criminal investigation, it may have been necessary for Barr to hold his fire.  No matter the reason for Barr's decision, the lack of materiality exists, making it an easy and eminently winnable argument.

Where McCord really goes astray is her claim that Flynn's falsehoods were material.  She contends that Flynn lied to Pence, leading the Russians to believe either that Pence was involved in or the dupe of a conspiracy.  What McCord doesn't realize is that it's her argument that is immaterial, for two reasons.

First, there was no Russian conspiracy!  Her argument matters only if Flynn or anyone else had been conspiring with the Russians.  No one was — and the FBI knew by January 4 that Flynn was not.  That means that any misstatements he made, whether to Pence or the FBI, were irrelevant, not criminal.  The conspirators' hope to use the Logan Act to elevate the Kislyak call to a criminal act only confirms that the FBI knew that Flynn was not conspiring with the Russians.

Second, there's a difference between lying to Pence and lying to the FBI.  Recall that Flynn was prosecuted for lying to the FBI.  However, any misstatements Flynn made to the agents interviewing him were immaterial because (a) the agents had the transcript and knew the truth, so nothing derailed their investigation, and (b) the agents agreed at the time that Flynn wasn't lying.  If he said something inaccurate, it was done innocently and could not be a material lie to the FBI.

McCord is a dullard, for only someone with no understanding of law or logic would argue as she does.

Alternatively, McCord is not a dullard at all.  Instead, she's simply another arrow in the quiver of a panicked Democrat establishment desperately working to destroy Barr to protect itself.  Given her long career, for me to have some semblance of respect for the DOJ as an institution, I almost hope it's the latter.