Let’s talk about Michael Flynn. If you were anywhere near Twitter last night, you would have noticed that the right side of the website erupted in scorching heat over new disclosures that some claimed “proved” Flynn was the innocent victim of a politically motivated witch hunt. The hashtag “#FlynnExonerated” trended, and this morning President Trump retweeted a string of tweets supporting Flynn and also tweeted this:
Other individuals, however, looked at the same new disclosures, shrugged their shoulders, and said, “This is how the FBI always operates.” For example, here’s a former federal prosecutor:
And another:
A refresher: Flynn pleaded guilty to lying about contacts with foreign governments. He admitted lying to the FBI about his communications with the Russian ambassador to the United States prior to Trump’s inauguration. He also admitted to lying about his relationship with Turkey in a Foreign Agent Registration Act (FARA) filing with the Department of Justice.
Since that time, Flynn has changed attorneys, and his new attorneys are now seeking to withdraw his guilty plea. The new disclosures emerged in connection with Flynn’s effort to change his plea and assert his innocence.
So what gives? How should we think about the legal travails of General Flynn?
First, let’s talk about the principal disclosure. It comes in the form of transcribed notes that contain some attention-grabbing sentences. Here are pictures, from CBS’s Catherine Herridge:
While it’s difficult to get the sense of a conversation from one person’s notes, it seems as if there was a question as to whether FBI agents should show Michael Flynn they had evidence that he violated the Logan Act (a 1799 law that in essence prohibits American citizens from engaging in unauthorized diplomacy with foreign powers), or whether they should hide the evidence from him to see if he would lie.
While this approach may seem unfair, it’s also a standard strategic law enforcement choice. If law enforcement shows the suspect the evidence, perhaps he confesses. They have their man. If law enforcement withholds the evidence, and the suspect lies, then law enforcement may be able to charge the suspect for the underlying crime and the lie. This standard tactic is one reason why federal criminal defense lawyers are forever screaming to the heavens, “Don’t talk to the FBI!”
But there’s more to the disclosure than normal FBI behavior. What about the line that suggests that the FBI may have been attempting to get Flynn fired? That’s indeed troubling. We need to learn more regarding the context and meaning, but it’s certainly not the job of the FBI to “get people fired.” It investigates potential criminal activity. It should not consider a suspect’s career.
That statement, however,is not truly relevant to the underlying legal case against Flynn. He has still admitted to lying to the FBI and to filing false statements with the DOJ
This is where Flynn’s defenders play the next card, and in isolation—it’s a good card to play. He may have lied, they argue, but he lied about a non-crime. He lied about contacts with Russians that were undertaken as part of his role as the future national security adviser and directly related to the incoming administration’s foreign policy.
It’s absurd (and blatantly politically-motivated), they argue, for the FBI to investigate violations of the Logan Act. It’s an unconstitutional statute passed in 1799, only two people have ever been prosecuted for violating it, the last prosecution was more than 150 years ago, and no one has ever been convicted.
In this context, Flynn’s best course of action would have been to either comply with the act or tell the truth about his actions and dare his own administration’s Department of Justice to prosecute (and then challenge the constitutionality of the act if it did). Instead, he chose the worst course—defy the act and lie.
Moreover, we shouldn’t forget that his lies weren’t confined to the FBI. He lied about his Russian contacts to Mike Pence, Reince Priebus, and Sean Spicer. He was fired for those lies, and though they weren’t criminal they do indicate that Flynn was engaging in a pattern of deception.
In addition—and this is very important—remember that the case against Flynn involved more than the Logan Act. The statement of offense against Flynn includes his own admission that he lied about his relationship with Turkey in disclosures he filed after Trump fired him:
On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.
Flynn’s defenders note that prosecutors rarely prosecute FARA cases. True enough, but the plot thickens still more. At a court hearing on December 18, 2018, the judge and the federal prosecutor indicated that Flynn could have been charged in yet another illegal scheme:
The court is apparently referring to the DoJ’s case against Flynn associates Bijan Rafiekian and Kamil Alptekin. Here’s a summary of the charge:
As discussed below, RAFIEKIAN and ALPTEKIN conspired covertly and unlawfully to influence U.S. politicians and public opinion concerning a Turkish citizen living in the United States whose extradition was then being sought by the Government of Turkey. The defendants sought to discredit and delegitimize the Turkish citizen in the eyes of politicians and the public, and ultimately to secure the Turkish citizen’s extradition. Although the Government of Turkey directed the work through ALPTEKIN, the defendants sought to conceal Turkey’s involvement in the efforts to discredit the Turkish citizen.
Throughout the indictment, the government alleges that Rafiekian and Alptekin worked with their business partner, an individual designated only as “Person A.” Person A is Michael Flynn. The target of the scheme was exiled Turkish cleric Fethullah Gulen. Flynn was paid handsomely by the Turkish government to try to force a political dissident back to his home country to face almost-certain death.
And he did this while leading “lock her up” chants in front of cheering Republican crowds.
So, is Michael Flynn the victim of a political prosecution launched through the pretext of enforcing an unconstitutional 18th century law? Or did he enter into a plea deal against the backdrop of much wider criminal behavior, striking a bargain in exchange for his cooperation? The available evidence suggests the latter scenario is closer to the truth.
But that’s not the end of the story (this tale is so convoluted and so contentious that I wonder when we’ll ever reach “the end of the story.”) As my friend Andrew McCarthy points out in The Hill today, recently released documents indicate that prosecutors and defense counsel may have struck a confidential side deal as part of the Flynn plea agreement. Why does this matter? I’ll let Andy explain:
After DOJ’s revelations last Friday, [Flynn’s counsel] filed a submission with the court, asserting that the new disclosures demonstrate that Mueller’s prosecutors not only pressured Flynn with the possibility of indicting his son; they also secretly assured Flynn’s former counsel, the well-connected Washington firm of Covington & Burling (C&B), that Flynn’s son would not be prosecuted if Flynn pleaded guilty. This “side deal” (a) was not explicitly memorialized in the formal plea agreement, (b) was not otherwise disclosed to the court as federal law requires, and (c) was designed to enable prosecutors to evade their due process obligations in future cases.
As Andy notes, if there was a secret arrangement that would reveal that prosecutors had threatened to prosecute Flynn’s son to coerce a guilty plea , this may bring the case within the scope of the Supreme Court’s 1972 ruling in Giglio v. United States, “which requires the government to disclose to the defense any promises made or benefits given in exchange for the testimony of a witness called by the prosecution.”
Yet if this is true, then Flynn repeatedly misled the court. Flynn declared in his statement of offense that he made his statement “knowingly and voluntarily and because I am, in fact, guilty of the crime charged. No threats have been made to me nor am I under the influence of anything that could impede my ability to understand this Statement of the Offense fully.”
He also stated in his plea agreement that “no agreements, promises, understandings, or representations” had been made other than those described in the plea agreement itself. He repeated these vows at his actual plea hearing:
THE COURT: Have any threats or promises other than the promises made in the plea agreement been made to you to induce you to give up your right to the indictment?
THE DEFENDANT: No.
We’ll find out soon enough if there was an unlawful side deal. If so, that’s a serious breach, and there should be serious consequences. But if you think that’s the last potential wrinkle in this complicated story, you’d be wrong. Let’s peel this onion one more layer. Flynn’s new counsel argues that Flynn’s previous counsel had a crippling, conflict of interest—it prepared the FARA documents that the government claimed were deceptive (and Flynn admitted were false). Flynn’s previous counsel claims that Flynn was “made aware” of the potential conflict and “knowingly consented.”
I don’t claim that 1500 words can sum up all the intricacies of this case, but the broad outlines are clear—there’s still overwhelming evidence that Michael Flynn lied to the FBI, that he made false statements in his FARA disclosures, and that part of his deceptions involved lying about an effort to force a Turkish dissident back to Turkey.
It’s still an open question, however, whether other claims of misconduct (such as the potential Giglio violation or his previous attorneys’ alleged conflict of interest), provide sufficient grounds for voiding his plea agreement. Future court hearings will sort this out, but in the meantime, treat with skepticism any claims that recent revelations have “exonerated” Flynn. They have not changed the underlying facts of his unlawful conduct.
One last thing …
The best moment in Sunday’s The Last Dance was watching Michael Jordan remember when the Detroit Pistons walked off without shaking hands after Jordan’s Bulls finally defeated their arch-rival. You can see Jordan’s expletive-laced comments here, and if you think the original walk-off wasn’t egregious. Well, it was. Here it is. The Bad Boys were indeed the Sith lords of the NBA:
Photograph by Kevin Hagen/Getty Images.
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