Robert Mueller filed Michael Flynn’s sentencing memo with the U.S. District Court in Washington on Tuesday. Because Flynn provided “substantial” information about “several ongoing investigations,” Mueller is recommending that he receive little or no jail time when he is sentenced on December 18th. The sentencing memorandum and the addendum (heavily redacted) can be viewed here.
General Flynn was the first Trump associate to fall victim to Mueller’s favored tactic, which is to trap a person into a “false statement” prosecution. He never should have been charged in the beginning. Flynn pleaded guilty to making false statements to the FBI after Mueller had turned his life into a living hell. After legal fees had nearly bankrupted him, Mueller threatened to go after Flynn’s son. Finally, Flynn agreed to plead guilty to end the madness. In the end, he provided 19 interviews with investigators from both the Mueller team and the DOJ.
Following Trump’s victory, he nominated General Flynn to serve as his National Security Advisor. During the transition period, Flynn had several telephone conversations with then-Russian ambassador Sergey Kislyak. Kislyak was under U.S. surveillance, therefore Obama intelligence officials received recordings and transcriptions of all his calls, including those with Flynn, during which “Flynn and Kislyak discussed the sanctions Obama had just imposed on Russia in retaliation for its 2016 election interference.”
The Washington Examiner’s Byron York points out that it was perfectly legal for Flynn and Kislyak to talk to each other and it was also legal for them to discuss the sanctions. Several of Obama’s DOJ officials, however, believed Flynn was in violation of the Logan Act, a law enacted in 1799, “under which no one has ever been prosecuted, that prohibits private citizens from acting on behalf of the United States in disputes with foreign governments.” (John Kerry’s meetings with Iranian officials during Trump’s presidency comes to mind as a violation of the Logan Act.) York explains:
The Obama officials also said they were concerned by reports that Flynn, in a conversation with Vice President Mike Pence(*), had denied discussing sanctions. This, the officials felt, might somehow expose Flynn to Russian blackmail.
So Obama appointees atop the Justice Department sent FBI agents to the White House to interview Flynn, who was ultimately charged with lying in that interview.
(* Trump fired Flynn for withholding the full truth from Pence.)
It is important to note that neither of the FBI agents thought Flynn was lying during that interview. Interestingly, the disgraced Peter Strzok was one of them. Then-FBI Director James Comey and then-FBI Deputy Director Andrew McCabe were both questioned by the House Intelligence Committee and stated that Flynn appeared to tell the truth as well.
But after Comey was fired and Mueller began his investigation, Flynn was charged with lying to the FBI. Congressional investigators have tried to obtain copies of the FBI reports from that meeting (called 302s), but the DOJ refuses to hand them over. Comey is scheduled to testify before members of the House Judiciary and Oversight Committees on Friday and will most likely be questioned about this case.
As I look at the documents, I am struck by the numerous times Mueller emphasizes how helpful Flynn has been to his team, which has to be intentional.
Page 1: Given the defendant’s substantial assistance and other considerations set forth below, a sentence at the low end of the guideline range—including a sentence that does not impose a term of incarceration—is appropriate and warranted.
Page 5: As detailed in the Presentence Investigation Report (“PSR”), the defendant’s military and public service are exemplary. He served in the military for over 33 years, including five years of combat duty, led the Defense Intelligence Agency, and retired as a 3-star Lieutenant General. See PSR (Doc. 44) at ¶¶ 70-71. The defendant’s record of military and public service distinguish him from every other person who has been charged as part the SCO’s investigation. However, senior government leaders should be held to the highest standards.
Page 5 (bottom): The defendant deserves credit for accepting responsibility in a timely fashion and substantially assisting the government. As described in the Addendum, shortly after the SCO reached out to the defendant to seek his cooperation, the defendant accepted responsibility for his unlawful conduct and began cooperating with the government.
A six page addendum discusses Flynn’s cooperation in detail, but it is heavily redacted.
Fox News’ Legal Analyst Gregg Jarrett also weighed in the case today. He believes that the sentencing memo “doesn’t implicate the president in any wrongdoing.” Here are the highlights from his analysis:
The memo isn’t a “smoking gun” showing President Trump colluded with Russians to win the 2016 presidential election or did anything else illegal. In fact, the memo isn’t even a squirt gun. In terms of President Trump’s conduct, it amounts to nothing of any significance.
The sentencing memo and a heavily redacted addendum filed by Mueller suggest that Flynn provided absolutely no meaningful information that Trump conspired or coordinated with Russia to win the 2016 presidential election.
Flynn also admitted to making false statements about his work as an unregistered foreign agent to benefit the Turkish government. But there is no connection between that work and President Trump.
First, Flynn contributed something to an unidentified criminal case that is not being handled by the special counsel and, thus, not directly collusion-related.
Second, Flynn seems to have answered candid questions about the Trump transition team’s conversations with foreign governments after the presidential election in 2016 and before Inauguration Day. Again, this would not be relevant to “collusion” to win the election because the election was already over.
Although I discussed the Logan Act above, Jarrett explains why this law would not apply to Flynn.
Nevertheless, this long dormant law does not apply to members of presidential transition teams who are acting not as private citizens, but as incoming government representatives of the person about to assume the presidency. They would therefore be constitutionally authorized to conduct foreign affairs. Every president-elect has his transition members engage with foreign governments to prepare for the challenges that lay ahead.
Not even Mueller would be foolish enough to bring a case under the Logan Act, especially since Flynn did not interfere in a diplomatic dispute under the meaning of the act. To the contrary, Flynn sought ways to de-escalate tensions over U.S. sanctions President Obama imposed on Russia by asking the Russian government to limit its response “in a reciprocal manner.”
By doing this, Flynn was acting for the benefit of the U.S. government and in a manner not inconsistent with the Obama administration’s wishes and policy.
The mainstream media have welcomed the news that Flynn was so helpful to Mueller. I think all we need to do is look at the number of FBI and DOJ officials who have already become casualties of this conspiracy including James Comey, Andrew McCabe, Peter Strzok and Lisa Page. Seamus Bruner of the Epoch Times compiled a list of 25 DOJ/FBI officials who have either been fired, demoted or retired. And today, we can add Bill Priestap, assistant director of the FBI’s counterintelligence division, to the list. Here is the link.
And it’s not over.