National Security Adviser Michael Flynn arrives in the east Room of the White House in Washington, Monday, Feb. 13, 2017, for a news conference with President Donald Trump and Canadian Prime Minister Justin Trudeau. . (AP Photo/Evan Vucci)
There have been some interesting happenings in the case of former National Security Adviser retired lieutenant general Michael Flynn. Byron York, who has been doing the work that the media refuse to do and the never Trumpers don’t want to see, has some interesting questions about how Flynn even came to be charged with lying to the FBI.
There were widespread reports that Flynn had lied to Vice President Mike Pence about telephone conversations that he, Flynn, had with Russian Ambassador Sergey Kislyak during the transition in late December 2016. On Jan. 24, 2017, two of Comey’s FBI agents went to the White House to question Flynn, and there was a lot of speculation later that Flynn lied in that interview, which would be a serious crime.
“The Jan. 24 interview potentially puts Flynn in legal jeopardy,” the Washington Post reported in February. “Lying to the FBI is a felony offense.”
So in March, lawmakers wanted Comey to tell them what was up. And what they heard from the director did not match what they were hearing in the media.
According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.
Nine months later, with Comey gone and special counsel Robert Mueller in charge of the Trump-Russia investigation, Flynn pleaded guilty to one count of making false statements to the FBI in that Jan. 24 questioning.
What happened? With Flynn awaiting sentencing — that was recently delayed until at least May — some lawmakers are trying to figure out what occurred between the time Comey told Congress the FBI did not believe Flynn lied and the time, several months later, when Flynn pleaded guilty to just that.
None of those congressional investigators has an answer; they’re baffled by the turn of events. But they know they find the Flynn case troubling, from start to finish.
I long ago discovered that the people thriving on Trump hatred need no reason but Trump hatred to justify any action. But, from a sense of fair play, I think we need to have an explanation of how we got from the FBI interviewer, who was none other than Peter Strzok, saying that he thought Flynn was being truthful in January to Mueller charging him with a felony in December based on the same interview.
As always, National Review’s Andy McCarthy has a deeper dive into the situation.
After Flynn pled guilty, I argued that this showed Mueller did not have a collusion case. If he did, he would have forced Flynn to plead guilty to some kind of criminal conspiracy involving the Trump campaign and Russia, and had Flynn implicate his Trump World coconspirators in the course of allocuting in court. Instead, Flynn pled out to a mere process crime, giving Mueller a scalp but not much else.
For the “he’s going to flip Flynn” crowd, keep in mind Flynn is pleading guilty to lying. This is not the best position to have a star witness in. So I think McCarthy is right. Mueller looked at Flynn, didn’t find anything, but decided to f*** with the guy because his rapturous public demanded it. And I’m not at all facetious about that. Right now, in my opinion. Mueller vindictively indicted Flynn because he thought the public demanded it and he used a threat of indicting Flynn’s son to get the guilty plea.
Back to McCarthy:
The judge who accepted Flynn’s guilty plea was Rudolph Contreras. Mysteriously, just days after taking Flynn’s plea, Judge Contreras recused himself from the case. The press has been remarkably uncurious about this development. No rationale for the recusal has been offered, no explanation for why, if Judge Contreras had some sort of conflict, the recusal came after the guilty plea, not before.
We can note that Contreras is one of the eleven federal district judges assigned to the Foreign Intelligence Surveillance Court. We do not know if Judge Contreras signed one or more of the FISA warrants the Justice Department sought for Trump campaign figures Carter Page and Paul Manafort (or even if signing a FISA warrant would constitute grounds for a conflict in Flynn’s case). We can note, however, that Contreras is one of just three FISA court judges who sits in the District of Columbia, where it is likely the Trump-Russia FISA warrants were sought.
Something that escaped notice was Flynn’s sentencing was postponed. This is from February 1:
Special Counsel Robert Mueller’s team has postponed the sentencing of former national security adviser Michael Flynn due to the “status” of the investigation, raising questions as to what the development means for the direction of the Russia probe.
A one-page “Joint Status Report” filed Wednesday in federal court in Washington gave notice that they would file another such report within 90 days.
“Due to the status of the Special Counsel’s investigation, the parties do not believe that this matter is ready to be scheduled for a sentencing hearing at this time,” the document, signed by Mueller and Flynn attorneys Robert Kelner and Stephen Anthony, said.
“The parties shall file a joint status report by no later than May 1, 2018, stating whether the matter should be scheduled for sentencing or whether a deadline should be set for filing another joint status report,” said a related order signed by Judge Emmet G. Sullivan.
I checked with a couple of actual trial attorneys and they said this could be something or nothing. Depending.
McCarthy did more digging:
When Judge Contreras pulled out, Flynn’s case was reassigned to Judge Emmet G. Sullivan. We now know that one of Judge Sullivan’s first actions on the case was to file an order directing Mueller to provide Flynn with any evidence in the special counsel’s possession that is favorable to Flynn, whether on the issue of guilt or of sentencing. Significantly, the order stresses that if Mueller has such evidence but believes it is not “material” and therefore that Flynn is not entitled to disclosure of it, Mueller must show the evidence to the court so that Judge Sullivan may decide whether to mandate its disclosure.
Could this provide General Flynn with factual grounds of which he was previously unaware to seek to have his plea vacated? Now, it could be that this is just Judge Sullivan’s standard order on exculpatory information, filed in every case over which he presides. But it is noteworthy that Flynn had already pled guilty, and in the course of doing so had agreed to Mueller’s demand that he waive “the right to any further discovery or disclosures of information not already provided” — in addition to forfeiting many other trial and appellate rights. (See plea agreement, pages 6–7.) It certainly appears that Sullivan’s order supersedes the plea agreement and imposes on the special counsel the obligation to reveal any and all evidence suggesting that Flynn is innocent of the charge to which he has admitted guilt.
Could this provide General Flynn with factual grounds of which he was previously unaware to seek to have his plea vacated? Would he have a viable legal basis to undo the plea agreement that he and his lawyer signed on November 30? We do not know at this point.
Given the fact that Sally Yates fanboi, Andrew Weissman–this is the guy who persecuted Enron and Arthur Andersen employees, getting them thrown in prison of spurious charges that were laughed at by the Fifth Circuit–is involved, suppressing evidence is virtually a gimme in terms of predictions.
Will any of this change anything. We know Mueller threatened to indict Flynn’s son and that threat is still alive. Even if he can get out from under the guilty plea, Flynn might go ahead and accept it to protect his son. But it is fortunate that the Senate is looking into this guilty plea because someone needs to remind Mueller that he’s just a temp-hire for Department of Justice, not Inspector Javert or Clousseau…one of those French detectives.