Sen. Rand Paul (R-Ky.) talks to reporters as he heads to the U.S. Capitol for the weekly Republican policy luncheon on March 5, 2019. (Chip Somodevilla/Getty Images)

Sen. Paul: Trump Should Pardon Flynn, Foreign Intel Shouldn’t Be Used Against Americans

Sen. Rand Paul (R-Ky.) said he told President Donald Trump that Lt. Gen. Michael Flynn should receive a pardon. Foreign intelligence was unfairly weaponized against Flynn in a way that should be unconstitutional, Paul said.

“The one that I have the strongest feeling about is General Flynn,” Paul told Fox News on March 26, when asked if Trump should pardon anybody after special counsel Robert Mueller concluded his probe.

In 2017, Mueller took over an FBI investigation into Russian interference in the 2016 presidential election and whether the Trump campaign colluded with such interference. After nearly two years, he finished it without recommending any indictments related to collusion.

Flynn pleaded guilty to a process crime, lying to FBI agents about conversations with Russian Ambassador Sergey Kislyak.

The interviewing agents came to Flynn the day after he was appointed as Trump’s national security adviser. Armed with intercepts of Kislyak’s calls with Flynn, they caught him giving inconsistent answers on several points about how the calls went down.

Paul took issue with how the call transcripts were obtained and used.

“No American should be prosecuted for something they said in a private phone call unless a judge gave a warrant to the government and said they can listen to the phone call,” he said. “They listened to General Flynn because they were spying on the Russian ambassador. Okay, that’s foreign intelligence, but that shouldn’t be domestic prosecution. So what they did to Flynn not only was unfair, but I think should be unconstitutional.“

The senator would like to see even the incidental use of foreign intelligence against Americans greatly abridged.

“I’ve been bugging the president for years to come forward and fix this for all Americans and say that no foreign intelligence gathering of information could ever be used against an American citizen in court for a crime unrelated to terrorism,” he said. “So what they did to General Flynn was unfair, and I have told the president—he’s not responded to me—but I’ve told him my opinion is that he ought to pardon General Flynn.”

Paul’s office didn’t respond to a request for comment.

Surveillance of Americans

On paper, Americans can’t be surveilled by the government without a warrant signed by a judge. But intelligence agencies have ways to circumvent the constitutional protection. The communication may be intercepted, for example, if the American is on the phone with a surveillance target outside the United States or a foreign agent inside the United States who is being spied on through a warrant issued under the Foreign Intelligence Surveillance Act (FISA). That’s what happened to Flynn, based on Paul’s comments.

The names of Americans inadvertently caught in such communications are masked by the intelligence agencies to protect their privacy, but can be unmasked when “necessary to understand such foreign intelligence information or assess its importance.” In 2017, it was revealed that top Obama officials, including national security adviser Susan Rice and U.S. Ambassador to the U.N. Samantha Power, requested the unmasking of communications belonging to some members of the Trump campaign and transition team.

There’s no direct evidence publicly available that Flynn was under a FISA warrant himself. It happened, however, to another associate of the Trump campaign, Carter Page. The FBI obtained a FISA warrant on Page in October 2016, shortly after he left the campaign. The warrant was renewed three times before expiring in September 2017. Page was never charged with any crime.

FISA Abuse

The Page warrant was largely based on the infamous Steele dossier, a collection of unsubstantiated claims of Trump-Russia collusion collected by former British MI6 agent Christopher Steele, who was hired at the behest of the Democratic National Committee and the Hillary Clinton presidential campaign.

Stuart Evans, the former deputy assistant attorney general who was in charge of FISA warrants in 2016, had concerns about the warrant on Page, according to text messages obtained by Fox News detailing conversations between then-high ranking FBI officials. Still, the warrant went through with the approval of top FBI and Justice Department (DOJ) officials, all of whom have since left or were fired, except for Deputy Attorney General Rod Rosenstein, who signed the warrant’s final renewal in June 2017.

U.S. Attorney John Huber has been investigating FISA abuses related to the Page warrant, then-acting Attorney General Matthew Whitaker said during his February testimony to Congress.

Another investigation into the alleged FISA abuses has been conducted by DOJ Inspector General Michael Horowitz.

The Page warrant has been publicly released, but with extensive redactions. Some congressional Republicans have asked Trump to declassify a tranche of documents, including the full warrant, or at least about 20 key pages of it.

Trump said in September the documents were handed to Horowitz for a review after the DOJ “agreed to release them, but stated that so doing may have a perceived negative impact on the Russia probe.”

With the Mueller probe concluded, that obstacle should be out of the way, although Trump also said that “’key Allies’ called to ask not to release” the documents.

“In the end, I can always declassify if it proves necessary,” Trump said.