Today's filing was long overdue. //

So, on January 4, 2017, the FBI agents and supervisors on Crossfire Hurricane and Crossfire Razor had determined there was no evidence, including in the transcripts of the calls, to support the proposition that Gen. Flynn was “wittingly or unwittingly” involved in activity on behalf of the Russian Federation that was a crime or a threat to national security.

That determination meant that had the closing of the file taken place as contemplated, any subsequent effort to interview Gen. Flynn would not be part of a pending or open investigation of him. That doesn’t mean the FBI could not interview Gen. Flynn — it means that the FBI could only interview Gen. Flynn about the specific matters still open with regard to Crossfire Hurricane. Questions put to Gen. Flynn about any other subject would not be deemed “material” to the pending investigation that justified an interview.

Whether or not interview answers given to FBI Agents are “material” is a question of fact that the jury must decide at trial. So “materiality” is an issue the government must prove as part of its case-in-chief.

The legal question is generally formulated as follows: “To establish “materiality” … it is sufficient that the statement have the capacity or a natural tendency to influence the determination required to be made.” //

FBI agents are not empowered by law to questions people on “spec”. Their questions must relate to an authorized pending investigation. We know now that the pending investigation of Gen. Flynn was set to be closed on January 4, but it was then kept open at the direction of top FBI management. Why was it kept open when there was a finding of “no derogatory information” on the original justification for opening the investigation? The transcripts of his conversations with the Russian Ambassador were known to the FBI agents who were closing the investigation. Any fertile line of cross-examination at trial would have involved running down the “pretextual” reasons that were offered — such as the Logan Act canard — for justifying keeping the matter open in order to interview Gen. Flynn. //

This goes back to the three questions I posed at the outset — 1) What are the elements of the “false statement” crime? Materiality is one element. 2) Who are the witnesses and what evidence is admissible to prove that element? The witnesses are badly compromised by expressions of bias and potentially illegal conduct. 3) Did anything happen during the course of the investigation to making proving an element difficult or impossible? The FBI was set to close out the investigation, but then decided to keep it open on transparently pretextual grounds in order to justify the interview, and there is a written record of that fact.