Why Flynn Is Not Vindicated, Part One: There Is No Evidence of a Side Deal Not to Prosecute His Son
In this post I’m going to begin to explain why I am not impressed by the case for the vindication of Michael Flynn. I emphasize at the outset that we don’t really know much about the pieces of evidence, many of which are heavily redacted, and we have not heard the government’s response. However, I think we know enough to say that Flynn is going to have to wait for his inevitable pardon. Based on what I have seen, nothing that happens in court is likely to result in dismissal of his case — unless, of course, the partisan troll who runs the Justice Department presses his thumb harder on the scale than he already has.
I am going to discuss two documents about which we know very little, and offer an educated guess as to what kinds of conversations could have been going on behind the scenes that would result in the generation of such documents. This explanation takes long enough that it will have to span two posts.
In this post, we’ll start with the claim that there was a side deal not to prosecute Flynn’s son. Allow me to summarize the so-called “evidence” of that proposition. First, we have Flynn averring in writing, under oath, that he was guilty. He denies in writing that there was any side deal whatsoever, and affirms that he was pleading guilty because he was guilty. I know, I know: he would say that to protect his son. What else do we have? Basically this: months after his plea, we have Flynn’s lawyers saying “we had a side deal that you would not prosecute Flynn’s son” and the government saying in response “the hell we did.”
That’s the evidence! For real.
Look for yourself. First we have Flynn’s signed plea agreement filed December 1, 2017. Here is his signature affirming that there are no side deals:
And here is the Statement of Offense, and Flynn’s signature affirming under penalty of perjury that it is true.
Now, the Shocking New Evidence. Here are two emails. Note that these emails were sent months later, in March 2018. Here is the recent court filing they are attached to, and here are the screenshots. First, one Covington lawyer to another:
And here is the Assistant U.S. Attorney denying it:
“The only exception is the reference to Michael Jr. The government took pains not to give a promise to MTF [Gen. Flynn] regarding Michael Jr., so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against whom MTF may one day testify.” (Giglio disclosures, in the federal system, are disclosures of promises, benefits, deals given to a witness — basically any incentive to testify — given to lawyers of defendants against whom the witness might testify.)
It has been sad to watch what has happened to Andy McCarthy, who these days routinely adopts absurd Trumpist positions and gives a thin and easily pierced intellectual cover for them. He says: “These passages cited in Powell’s exhibits tend to corroborate the claim of an agreement not to prosecute Flynn’s son. It is fair, then, to infer that the threat of such a prosecution was indeed used to pressure him.” I think that is a stretch, to put it kindly. The documents indicate nothing of the sort, and can easily picture a conversation that went something like the following.
First, let’s set the positions of the parties. We don’t know this to be the case; again, it’s a hypothetical exercise but an educated guess. Flynn doesn’t want his son to be prosecuted. It’s a genuine sentiment, plus, it’s a common thing for people placed in difficult positions (not wanting to plead, not wanting to testify) to make reference to their family in their decisionmaking. (“I’m not scared to testify, but these people are going to kill my family” is something I have heard literally dozens of times in my career.) So Flynn tells his lawyers at Covington and Burling: “make it part of the deal that they won’t prosecute my son.” Meanwhile, let’s assume the Assistant U.S. Attorney (AUSA) has no current intention of prosecuting Flynn’s son for involvement with a company that failed to register as a foreign agent. The issue has been investigated and the AUSA doesn’t think there’s a case there. And although you never know what evidence will develop in the future, and so he doesn’t want to commit to the notion that there will be no prosecution, he currently sees it as unlikely that a prosecution will happen. But, critically, he does not want non-prosecution of Flynn’s son to be part of the deal, because if Flynn ever testifies, that will crush his credibility. All any defense lawyer has to ask him is: “Didn’t the government promise not to prosecute your son for you to testify?” The AUSA wants to avoid giving any defense attorney the chance to ask such a question, so he unequivocally does not want non-prosecution of Flynn’s son to be part of any deal. But he has a Covington lawyer freaking out about it in front of him. Here’s the hypothetical conversation:
FLYNN LAWYER: My client wants an assurance that his son won’t be prosecuted.
AUSA: I can tell you that it doesn’t look like there’s a case against his son, but that’s not part of the deal.
FLYNN LAWYER: He wants it to be part of the deal.
AUSA: I understand why he would, but it’s not part of the deal.
FLYNN LAWYER: All he cares about is his son. Look, are you prosecuting his son or not?
AUSA: That’s an internal decision, and as you know new facts can emerge and situations can change, but if it makes you feel better I will tell you that as things stand right at this moment, it does not look like we will be prosecuting the son.
FLYNN LAWYER: So we have a deal.
AUSA: No, I have already said twice, this is not part of any deal. If I include non-prosecution in the deal, I will have to disclose that if he testifies, and any competent defense attorney will rip him to shreds. So no.
FLYNN LAWYER: OK, I understand why you don’t want to disclose it. We’ll just call it a gentleman’s agreement.
AUSA: There is no agreement on that point. Not formally or informally. It’s not part of the deal.
FLYNN LAWYER: You just told me you’re not prosecuting his son. I’m telling him we have a deal.
AUSA: I told you as things stand right now, it does not look like there will be a prosecution of his son, but that could change and we are not making it part of any deal.
FLYNN LAWYER: I’m telling him we have a gentleman’s agreement.
AUSA: You should tell him the truth, which is that we don’t.
And so on. I can easily see a conversation very much like that taking place, the Covington guy wanting to look to his client like he secured agreement on his client’s highest priority, and telling Flynn something like: “Hey, the government says it’s not part of the official deal, but they’re not prosecuting your son.” And Flynn might reasonably even think it was part of a side deal, although he did aver under oath that there was no side deal.
Resulting in emails of the sort we see attached to the latest court filing.
So I’m not impressed by that evidence. Part Two, coming later (tonight or tomorrow), will address the next piece of evidence: the alleged set-up to get Flynn fired and get him to lie. TL;DR: I do not accept the premise that the government was discussing such a set-up, based on the evidence I have seen. I’ll flesh it out later.
“he does not want non-prosecution of Flynn’s son to be part of the deal, because if Flynn ever testifies, that will crush his credibility.”
How? How exactly? How exactly does it ‘crush his credibility’ in this day and age where Democrat prosecutors routinely offer the guilty parties in high-profile cases complete immunity only for them to tell a pack of lies that ‘exonerates’ the high-level defendants who ordered them to do the deeds? When has
Manafort’s accountant and Hillary’s IT team would like a few words with you. But to be fair, unlike Flynn, they got friendly lawyers and judges familiar with how to manipulate legal procedural outcomes from the get-go, as well as the blessing of Washington D.C. itself, the absolute friendliest venue to Democrat interests anywhere in the world.
Flynnocence (bdf7ef) — 5/1/2020 @ 8:57 amInteresting analysis, thank you for writing.
I have a couple questions if you’re willing.
-If the prosecutor honestly concluded the his son had committed a crime would it be legal to include non-prosecution of the son in the plea deal?
-What type of behavior from the prosecutor would cross the line? What type of evidence would you expect there to be if they did? For instance if in a previous meeting they had threatened that it might be possible by saying “Your son works here, we’re looking into him also. If you plead guilty it might help you both out.” Would that constitute a threat?
-What’s the minimum level of evidence you would find compelling that they had threatened his son?
I appreciate any time you’re willing spend answering, apologies if my questions aren’t worded correctly from a legal stand point. Hopefully the intent is clear.
Time123 (53ef45) — 5/1/2020 @ 9:02 amMr. French is a little more accommodating to McCarthy, calling him a “friend”, but he still rejects his position.
And it’s really all a distraction. The hardcore Trump defenders are throwing any and all they can to defend Flynn’s confessed criminal activity and pretend that he really didn’t commit criminal acts.
Paul Montagu (b3f51b) — 5/1/2020 @ 9:03 am1. Juries and the general public may decide that defendants/witnesses lack credibility when their testimony is impacted by or contingent on a deal with the prosecution, especially when the deal gives them something of value. It is arguably the same as paying them for their testimony.
DRJ (15874d) — 5/1/2020 @ 9:33 amGood post. Thank you.
DRJ (15874d) — 5/1/2020 @ 9:38 am1) To really understand how outrageous are these new Flynn docs, you have to add to everything we already know. And key is remembering that the FBI had no REASON to interview Flynn. It already had transcripts of his conversations with Kislyak.
2) The new docs show FBI had already cleared Flynn of ludicrous claims that he was agent of Russian power; it moved to close that investigation on Jan 4 2017. But then DOJ cooked up the absurd Logan Act claim, the notion Flynn had violated an obscure 1799 law.
3) Again if they thought he violated Logan, all they had to do was prosecute. They had the transcript. Their problem? They knew such ridiculousness would never fly. So how how else to nail Flynn? As the notes show, Logan just became the pretext for interview.
4) The real goal was trap him into saying something at odds with transcript, to “get him to lie.” And the evidence of that strategy is everywhere. We have Comey bragging that they went around WH legal counsel, so Flynn would have no representation.
5) We have a new email from Lisa Page asking how FBI can get around issuing to Flynn the standard admonition against lying, suggesting Strzok just “casually slip that in.”
6) We have McCabe docs showing he discouraged him from getting lawyer. FBI decided to get rid of standard admonition altogether. Also did not tell Flynn he was being interviewed in an “investigatory” context, suggesting this was a chat between gov officials.
7) As for liberal commentators/legal scholars saying all this is “routine,” well, let’s sure as hell hope not. The FBI exists to investigate cries–not create them.
Kimberly Strassel
https://threadreaderapp.com/thread/1255989283686498304.html
harkin (8f4a6f) — 5/1/2020 @ 10:04 am_
“7) As for liberal commentators/legal scholars saying all this is “routine,” well, let’s sure as hell hope not. The FBI exists to investigate cries–not create them.”
I laughed out loud.
Davethulhu (744195) — 5/1/2020 @ 10:07 amSo, proof by hypothetical conversation? Perhaps that’s unfair, but all we have here is conjecture and supposition based mainly on our host’s experience in a similar role with a different (and less arrogant) organization, plus some fairly contradictory snippets from redacted documents.
Not that this is a critical piece of the Flynn complaint (to anyone other than Flynn).
Kevin M (ab1c11) — 5/1/2020 @ 10:27 amI think it is very possible that prosecutors, being lawyers, worked out language that seem to assure Flynn that his son would not be prosecuted, but fell just ever-so-short of a promise that would have to be included in the official plea deal and/or disclosed in court.
“It all depends on what the meaning of “is” is.”
Kevin M (ab1c11) — 5/1/2020 @ 10:30 amI think that people bring attitudes to these questions that color their interpretation. Some dislike Trump in the extreme, some the opposite. Some distrust prosecutors, or federal agents, or police in general, others see them as the white hats. There are so many federal laws that can be brought to bear on someone, should the feds desire, that few are guiltless before federal law.
That they used the LOGAN Act to justify their interview is astonishing. A law that has been in existence for 221 years, a violation of which has been charged only twice, with no convictions, is only a club to be used by dishonest people. Its use should immediately tell you that thuggery in under way.
Kevin M (ab1c11) — 5/1/2020 @ 10:39 amSure they did, as a counter espionage matter.
So?
So?
Where’s the memo from bar instructing Wray that the FBI not do this type of trick any more? Until they change it for every one I have no sympathy.
Didn’t his statement to the court admit he knew it was a crime when he lied?
Where’s the memo from bar instructing Wray that the FBI not do this type of trick any more? Until they change it for every one I have no sympathy. While I’m at it, how about they drop all prosecutions along these lines and file for release of everyone currently serving time / probation for them?
Time123 (ae9d89) — 5/1/2020 @ 10:45 amThe allegation is that the attorneys worked the deal out and did NOT inform Flynn. You pole-vault right over that fact in your analysis, then rely on a conversation that takes place only in your imagination, something I see as unfortunate if not disingenuous to some degree.
Andy McCarthy’s analysis of the same facts is grounded in reality and seems far more compelling to me.
As to the “they weren’t out to fire him” aspect of your argument, I would respectfully point out that the notes that were released overtly stated that getting Flynn fired was one of the possible goals of the interview. Another possible goal was to get him to lie.
I would have previously assumed that we could agree that violating the executive branch chain of command and getting a staff member you did not esteem fired, then arrested, with no criminal predicate, is a bit outside the scope of legitimate F.B.I. activities.
Jonathan K. Smith (9570eb) — 5/1/2020 @ 10:45 amIn COVID-19 News-
Expert report predicts up to two more years of pandemic misery
The new coronavirus is likely to keep spreading for at least another 18 months to two years—until 60% to 70% of the population has been infected, a team of longstanding pandemic experts predicted in a report released Thursday.
They recommended that the US prepare for a worst-case scenario that includes a second big wave of coronavirus infections in the fall and winter. Even in a best-case scenario, people will continue to die from the virus, they predicted.
“This thing’s not going to stop until it infects 60 to 70 percent of people,” Mike Osterholm, who directs the Center for Infectious Disease Research and Policy (CIDRAP) at the University of Minnesota, told CNN.
“The idea that this is going to be done soon defies microbiology.”
RipMurdock (d2a2a8) — 5/1/2020 @ 10:46 am…….
Maybe he shouldn’t have lied to the FBI?
Time123 (ae9d89) — 5/1/2020 @ 10:46 amMike Pence Bans Voice of America Reporter from Air Force Two Over Alleged Off-The-Record Violation
Vice President Mike Pence’s office banned a Voice of America reporter from traveling on Air Force Two, claiming the reporter violated an off-the-record agreement on an April 28 trip to the Mayo Clinic, the outlet announced on Friday.
Pence ignited controversy after visiting the clinic in Rochester, Minnesota without wearing a mask. …..
Voice of America’s White House reporter, Steve Herman, subsequently claimed on Twitter that visitors to the clinic had been told by the vice president’s office that masks were in fact required. “All of us who traveled with him were notified by the office of @VP the day before the trip that wearing of masks was required by the @MayoClinic and to prepare accordingly.”
RipMurdock (d2a2a8) — 5/1/2020 @ 10:52 am……
Judge Sullivan, the trial judge in the Flynn case, has a record of requiring the government to strictly comply with Brady requirements. He virtually begged Flynn to withdraw his guilty plea at one point, but Flynn reaffirmed it.
When the FBI interviewed Flynn in January 2017 they were conducting a counter-intelligence investigation—unless you think an alleged Logan Act violation is not laughable. They knew everything that was discussed in Flynn’s telephone conversation with Russian Ambassador Kislyiak as they had a transcript of the intercepted conversation.
You make no mention of the handwritten note, reportedly authored by William Priestap, then head of FBI counter-intelligence division (perhaps you did not have it when you wrote your post). In it he asks, “What is our goal? Truth/Admission, or to get him to lie, so we can prosecute him or get him fired?”
What do you think the FBI agents were trying to do by interviewing him?
Stu707 (52fdfe) — 5/1/2020 @ 10:58 amAs for liberal commentators/legal scholars saying all this is “routine,” well, let’s sure as hell hope not. The FBI exists to investigate cries–not create them.
Let’s have some of those routine 6AM SWAT-type raids, TV cameras rolling!
Colonel Haiku (2601c0) — 5/1/2020 @ 10:58 amJustice Dept. scrutinizes White House-connected doctor linked to disputed coronavirus treatment
If Corsi’s involved, you know it’s a scam.
RipMurdock (d2a2a8) — 5/1/2020 @ 10:58 amMaybe he shouldn’t have lied to the FBI?
Absolutely. Now do Andy McCabe.
beer ‘n pretzels (db7354) — 5/1/2020 @ 10:59 amAbsolutely. Now do Andy McCabe.
RipMurdock (d2a2a8) — 5/1/2020 @ 11:02 amThat call was made by Trump’s Justice Department. So if they couldn’t trump up (pun intended) charges, no one can.
@19 take the decision on McCabe up with the Trump DOJ.
Maybe if you get some friends together and chant “lock him up” they’ll do something.
Time123 (9f42ee) — 5/1/2020 @ 11:22 amThe interest in justice being served is commendable, gentlemen…
Colonel Haiku (2601c0) — 5/1/2020 @ 11:35 amMore Sullivan:
“ Even the judge in the case has added to this disturbing record. As Flynn appeared before District Judge Emmet Sullivan for sentencing, Sullivan launched into him and said he could be charged with treason and with working as an unregistered agent on behalf of Turkey.
Pointing to a flag behind him, Sullivan declared to Flynn, “You were an unregistered agent of a foreign country while serving as the national security adviser to the president of the United States. That undermines everything this flag over here stands for. Arguably, you sold your country out.”
Flynn was never charged with treason or with being a foreign agent. But when Sullivan menacingly asked if he wanted a sentence then and there, Flynn wisely passed. It is a record that truly shocks the conscience. While rare, it is still possible for the district court to right this wrong since Flynn has not been sentenced. The Justice Department can invite the court to use its inherent supervisory authority to right a wrong of its own making.
As the Supreme Court made clear in 1932, “universal sense of justice” is a stake in such cases. It is the “duty of the court to stop the prosecution in the interest of the government itself to protect it from the illegal conduct of its officers and to preserve the purity of its court”
__
Wonder if Sullivan received a Deep State oscar……
harkin (9a8c5f) — 5/1/2020 @ 11:40 am__
What’s happened to
Colonel Haiku (2601c0) — 5/1/2020 @ 11:43 amKareKlink?The Justice Department can invite the court ….
The Justice Department can dismiss the case.
Allow me to repeat that: The Justice Department can dismiss the case.
This is all theater. It’s Trump keeping Flynn on tenterhooks so Flynn won’t tell all. About Russian collusion and about Trump’s all other dirty dealings that he was privy to.
nk (1d9030) — 5/1/2020 @ 11:48 amForgive me for not being too worked up over the prospect that a man who confessed to lying to the FBI might have to serve a short term of probation. Which was a reasonable expectation before he switched lawyers and started trying to get a pardon.
Time123 (ae9d89) — 5/1/2020 @ 11:59 am@23, yeah. Flynn was a general. Retired, cashed in and started making big money as an agent of Turkey, wasn’t real clear about that at the time either. That’s all well known at this point.
Time123 (ae9d89) — 5/1/2020 @ 12:00 pmIt is not my burden to prove anything. I am showing how the material advanced by Flynn’s lawyer (since Flynn has the burden here) is susceptible of reasonable interpretations other than the one advanced by Flynn, Sidney Powell, Andy McCarthy, and an army of partisan hacks out there. You don’t have to accept that my hypothetical conversation (which I explicitly labeled hypothetical) actually occurred to see that there is no evidence of this side deal other than one of Flynn’s attorneys asserting that to another after the fact, and the government denying it. But if I simply said that and left it there, partisan hacks would say “what could possibly have led to these emails?” Now that I have given a theory, partisan hacks (and you) are saying: “How do you know that’s exactly what happened?” I don’t, I didn’t say I did, and that’s not the point.
So your quibble is noted but it completely misses the point.
Patterico (115b1f) — 5/1/2020 @ 12:04 pmI know it’s hard to read to the end of a long post. Here’s what the post you are commenting on says about that evidence and that issue: that I will be dealing with it in a later post because I did not have time this morning to do so.
OK?
Patterico (115b1f) — 5/1/2020 @ 12:04 pmTrump contradicts US intel community by claiming he’s seen evidence coronavirus originated in Chinese lab
President Donald Trump contradicted a rare on-the-record statement from his own intelligence community by claiming Thursday that he has seen evidence that gives him a “high degree of confidence” the novel coronavirus originated in a laboratory in Wuhan, China, but declined to provide details to back up his assertion.
The comments undercut a public statement from the Office of the Director of National Intelligence issued just hours earlier which stated no such assessment has been made and continues to “rigorously examine” whether the outbreak “began through contact with infected animals or if it was the result of an accident at a laboratory in Wuhan.”
“Yes, I have,” Trump said when asked whether he’s seen evidence that would suggest the virus originated in the lab. Later, asked why he was confident in that assessment, Trump demurred.
“I can’t tell you that. I’m not allowed to tell you that,” he said.
RipMurdock (d2a2a8) — 5/1/2020 @ 12:05 pm……
That’s a truly stupid allegation, if that’s the allegation, since it would perforce have zero to do with Flynn’s actions. In any even, if you’re calling me disingenuous you are going to get banned. So that was your last comment. Hope it was worth it.
Great. That means you’re an unthinking partisan, so your analysis won’t be missed here. Bye!
Patterico (115b1f) — 5/1/2020 @ 12:12 pmNope. As I will show in my second post. Which you won’t be commenting on, but you will be welcome to read.
Patterico (115b1f) — 5/1/2020 @ 12:12 pmReading Jonathan K. Smith’s past comments confirms my banning decision and only makes me wonder why I didn’t do it before.
Patterico (115b1f) — 5/1/2020 @ 12:15 pmPatterico and any others defending the treatment of Flynn has willfully ignored other aspects of this case.
Primarily, the fact that the PRETEXT to investigate Flynn is bullsh*t.
-In late December, while Flynn was in Dominican on vacation he had a conversation with Russian ambassador Kislyak.
-The FBI counter-intelligence has the transcript of that conversation. THEY KNOW WHAT WAS ON IT. Both Flynn and Kislyak KNOWS that they’re being recorded.
-Then, in early January, when the FBI case was about to be closed, as standard practice, because no derogatory information was found on Flynn by MULTIPLE agencies, Strokz intervened to keep the case open.
-The 7th floor FBI officials strategize how to interview Flynn, in which later on Comey BRAGGED about “getting away with it” as what they did was against protocol. In this strategy planning, it was all about how to “get” Flynn, by either getting him lie or to get him FIRED. Not, ya know, try to get the truth of things.
Side bar #1: Really, really wrap your head about this information. This wasn’t a REPORTED crime in which the officials would investigate who committed the crime and how. This was about small group of high level officials, using the full might of the government, to target Flynn in the effort to keep him out of Trump administration and to cast a pall over the administration. They finally landed on the Logan Act as the pretext. In other words, like Strozk stated – “First we F*ck Flynn…then we F*ck Trump”.
The Obama administration had multiple reasons to dislike Flynn and to damage him politically. Here’s a few:
a) Flynn was a constant thorn to Obama policy officials
b) Flynn was an opponent to the Obama administration’s Iran Deal
c) Flynn wanted to enact reviews over certain CIA programs that enjoyed Obama’s blessings
d) Flynn supported a counter-intel FBI agent’s claim of discrimination against McCabe
Succinctly stated: Flynn knew were the bodies were in the Obama administration and were terrified of Flynn being in the Trump administration, such that Obama himself warned Trump not to include him in his administration.
-Continuing, the day before interviewing Flynn there was a Washington Post article based on an FBI leak that stipulated that the FBI/DOJ didn’t find anything wrong with Flynn’s conversation with the Kislyak… being that Flynn is not an idiot would’ve seen that article, and is “at ease” by the time the FBI showed up for an interview.
-When Strokz and Bill Preistep interviewed Flynn, they felt he was remembering in good faith and Strokz & Comey’s congressional interview again stated that they all thought Flynn was telling the Trump.
-In before someone else brings this up: The FBI has no reason/jurisdiction to care about whether or not Flynn lied to Pence prior to his Sunday talk show tours.
-Then, the Flynn transcript was ILLEGALLY leaked to the media that cause an embarrassing episode for Pence in which Flynn was fired.
-Flynn was not in legal jeopardy until the Mueller Special Council set their sites on him. They were threatening to throw the books at Flynn, starting with FARA violations. Now, keep this in mind: Before the Mueller Special Counsel, FARA violations was only used something like 6 times in the last 50 years in court. Usually, the offending party was given opportunities time to file under FARA regulations and to update their filings accordingly. Flynn, et and el were never given that opportunity. I have a real problem with this… you don’t arbitrarily and capriciously prosecute folks like this. This is how cops/prosecutors/ judges loses credibility.
-As to why Flynn admitted to lying to the FBI:
i. By then, Flynn was financially ruined
ii. His son was directly/indirectly threatened by SCO. Now we can debate whether the threat was real or not, but let’s not ignore that there was at least a conversation about it, would undoubtedly create pressure on Flynn to cooperate.
Why is it so difficult to believe that Flynn may have felt NO OTHER RECOURSE to knowingly plead guilty, even though it may not be true?
-I want Patterico to opine on the following and I would challenge him that he wouldn’t be able to come up with a good faith rationale:
a) what was the rationale for interviewing Flynn? They already had the transcript. In a normal investigation, they would SHOW the transcript to Flynn only if they needed clarification (ie, code word explanation, context, etc…)
b) why did Comey, et. el. break standard protocol in going around the WH counsel in order to interview Flynn?
c) why didn’t they tell Flynn that they were interviewing Flynn on possible criminal investigation?
d) Do you not question, at all, why Mueller chose to charge Flynn with lying to the FBI, who were NOT IN THE ORIGINAL INTERVIEW? Meaning, you have government officials disagreeing with the original investigators that Flynn did NOT lie! Even Comey!
e) Where’s the original Flynn 302 memo of the interview?
Ironically, for all the things you’ve complained about Trump “breaking the norms” and “damaging the Presidential Office”. I’d argue that the actions of the Obama administration during the election, post-election and early on Trump’s tenure (SCO) has far more damaging effects to our norms and I don’t think history will be too kind.
whembly (f54d88) — 5/1/2020 @ 12:15 pmPatterico, I didn’t address this to your when i wrote it, but i’m very curious about your take, especially on the 3rd bullet.
-If the prosecutor honestly concluded the his son had committed a crime would it be legal to include non-prosecution of the son in the plea deal?
-What type of behavior from the prosecutor would cross the line? What type of evidence would you expect there to be if they did? For instance if in a previous meeting they had threatened that it might be possible by saying “Your son works here, we’re looking into him also. If you plead guilty it might help you both out.” Would that constitute a threat?
-What’s the minimum level of evidence you would find compelling that they had threatened his son?
I appreciate any time you’re willing spend answering, apologies if my questions aren’t worded correctly from a legal stand point. Hopefully the intent is clear.
Time123 (53ef45) — 5/1/2020 @ 12:20 pmI don’t answer people who talk to me like that. I see that you’re very exercised about this case, based on a partisan, selective, and distorted view of the facts — but you are on very thin ice addressing me that way. Last warning, whembly.
Patterico (115b1f) — 5/1/2020 @ 12:28 pmI am going to suggest some reading for anyone asking me questions about this case. No more questions from pro-Flynn people until you promise me you have read both of these documents.
link
link
I’m not going to discuss this further with aggressively uninformed people. I have better things to do with my time.
Patterico (115b1f) — 5/1/2020 @ 12:30 pmThere is so much “information” (data?) flying around that it is hard to separate truth from fiction from lies from misunderstandings.
To me, the idea that someone could be brought in for questioning under a Logan Act investigation colors the whole thing. Maybe that’s untrue — hard to say — but for me that fact, if true, leaves everything that follows poisoned by a malicious intent.
Kevin M (ab1c11) — 5/1/2020 @ 12:37 pmUsing the Logan Act to start an investigation is like using a broken taillight to search a car. Actually worse, since people are sometimes cited for broken taillights.
Kevin M (ab1c11) — 5/1/2020 @ 12:39 pmMaybe he shouldn’t have lied to the FBI?
Maybe they shouldn’t have dragged him in? Using Logan Act to start an investigation is LESS viable than using a law against adultery.
Kevin M (ab1c11) — 5/1/2020 @ 12:43 pmThis is all theater. It’s Trump keeping Flynn on tenterhooks so Flynn won’t tell all. About Russian collusion and about Trump’s all other dirty dealings that he was privy to.
More clown-carisms about collusion…
Colonel Haiku (2601c0) — 5/1/2020 @ 12:47 pmEven the new data that is supposed to exonerate flynn makes it clear that they thought he had broken the law. There’s no evidence they thought he was innocent, it was a discussion about how they wanted to handle a politically powerful suspect. But that’s probably in part 2.
Also, what makes you think LEO are usually out to ‘get’ people they think are guilty?
Time123 (ae9d89) — 5/1/2020 @ 12:56 pmWell they did. He lied. He admitted he lied. Now he gets probation.
Time123 (ae9d89) — 5/1/2020 @ 12:59 pmAdditional Comment to Kevin. I agree the system isn’t fair in this way. I think the system needs reform. I don’t agree with applying the system gently to the powerful and their friends unless we’re going to change how it’s applied going forward. I also don’t think so&so got away with it so now this other person should also. Go prosecute So&So, if failure to do so at the time deserves holding someone to account then do that.
Time123 (ae9d89) — 5/1/2020 @ 1:04 pm“Why is it so difficult to believe that Flynn may have felt NO OTHER RECOURSE to knowingly plead guilty, even though it may not be true?”
Imagine how often this happens to people with fewer resources than Flynn.
I’d love to see the system reformed. I’m adamantly opposed to Flynn getting special dispensation.
Davethulhu (744195) — 5/1/2020 @ 1:10 pm@36
I’ll admit. I’m incensed about this and about yours (and others) unwillingness to question Flynn’s prosector’s views with this case. Particularly the pretext as to why Flynn was originally investigated.
Via that link you sent:
How on earth did Flynn obstruct this investigation when the FBI already had his transcripts.
What was the point to interview him?? Doing his job as the incoming national security adviser in having these discussions. Additionally, what’s the “material” part of the investigation? I cannot make sense of it… when Comey’s own crew didn’t charged Flynn for lying nor did they believed that he tried to.
I’ve always had issues with Flynn’s case…particularly when the indictment only started under the Special Counsel. The biggest red flag was Andrew Weissmann being on Mueller’s team. Weissmann is an overzealous partisan hack. He was directly involved in destroying a company (Arthur Anderson) that a family member lost her job and retirement, who had zero involvement with the Enron ordeal. As such Arthur Andersen LLP v. United States verdict was unanimously overturned by SCOTUS.
I’ll step away and cool off…and make some time to completely review those two links you’ve presented. And then I’ll make a good faith effort to re-read your take on this blog.
Please understand that I’m not trying to attack *you* personally. I want to have constructive dialogues about this topic. However, I’ve followed this case closely since the beginning and as for your comment that I’m “very exercised about this case, based on a partisan, selective, and distorted view of the facts”. The same could be argued about the other side in justifying everything the government as done.
whembly (f54d88) — 5/1/2020 @ 1:18 pmIn order to get him fired.
It was hard for them to get Trump to do that, and they had to break the law themselves by leaking.
Sammy Finkelman (af3697) — 5/1/2020 @ 1:18 pmWhembly, I don’t have time to look it up but Ken White has done some good explanations on this. IANAl but if I’ve got it right, any lie which could maybe, possibly, in theory, deceive an investigator is material even if they already know the answer.
Time123 (ae9d89) — 5/1/2020 @ 1:36 pmWhembly, Question for you. Do you think the government has failed to abide by the rules and precedents established for these things? Or just that what they’ve done is morally wrong?
I think that might be some of the disconnect.
I think they’ve followed the rules.
Time123 (ae9d89) — 5/1/2020 @ 1:45 pmI think the rules are bad and need to be fixed.
30. RipMurdock (d2a2a8) — 5/1/2020 @ 12:05 pm
Whats;s getting lost here is that there are two [2] possible laboratories from which there virus could have originated (in the sense of get out into the world, not in the sense of being created using genetic engineering.
1. Wuhan Institute of Virology – 8 miles from the wet market. (more open to the outside world)
2. Wuhan Center for Disease Control and Prevention – located about 300 yards from the wet market. (more secret)
Things written about this are hard to follow because it is not clear which lab is being written about. any people probably don;t even realize tere are two candidate laboratories, plus the possibility that someone out collecting viruses from bats got infected.
In January 2020, the U.S was picking up a rumor, possibly deliberately circulated among low ranking officials who thought they were being told the truth, that the virus was released because of an intern at the Wuhan Institute of Virology who infected her boyfriend and also went to the wet market.
The first question is, how could Chinese officials know this? The only way would be is that they for some low ranking person they could blame – where some person in connection with that person was infected. So they had someone working there whose boyfriend was one of those infected. Unless his infection was really really early, you would have no reason to blame her.
This person probably really exists, and this poor girl was called in and basically forced to confess to making some kind of mistake and to visiting the wet market which she probably didn’t. And in the end they probably decided not to go with this.
Which means both things are possible.
The wet market theory though can be pretty much ruled out because (apparently)
1. The epidemic started a month before anyone connected with the wet market was infected.
2. The wet market did not normally sell either bats or pangolins.
What the CIA has no idea about is where and how it did get started.
There is just circumstantial evidence that it case out of a lab.
1. Lab accidents or escapes are not an unknown thing.
2. China isn’t that expert.
3. When the virus was first sequenced, and the results about to the published, the governemnt ordered it not to be published and the samples destroyed. This would be consistent with the virus being identical to a virus a government lab had, although they could have other reasons
If it did escape, they didn’t know about it at the time, or that it was a dangerous variant.
Sammy Finkelman (af3697) — 5/1/2020 @ 1:49 pmWell they did. He lied. He admitted he lied. Now he gets probation.
Fruit of a poisoned tree.
Kevin M (ab1c11) — 5/1/2020 @ 1:58 pm@51, I don’t think “I only broke the law because the cops didn’t like me.” is a real defense.
Time123 (53ef45) — 5/1/2020 @ 2:01 pmIt was a counter-intelligence investigation and, on January 7, 2017, our intelligence community briefed Trump on the sweeping and systematic hacking/propaganda operation Putin conducted. Our American intelligence professionals knew of scores of contacts between Putin people and Trump people, and then up comes this phone call between the Russian Ambassador and
Putin’s American acquaintanceFlynn. The FBI would be derelict if they didn’t question Flynn. More from Professor Eliason:And here’s the summary of a long breakdown by Lawfare.
It’s a long read, but worthwhile.
Paul Montagu (b3f51b) — 5/1/2020 @ 2:03 pmKevin does not like the laws. Hence, anyone who breaks the laws as written or the procedures as practiced should get a pass.
Driving with a minor safety violation? If the LEOs bust you with a trunk full of meth, you walk!
Fruit of the poison tree!
Ragspierre (d9bec9) — 5/1/2020 @ 2:06 pmI think they’ve followed the rules.
How does investigating a “crime” for which no one has been found guilty of in 221 years constitute normal procedure?
Again, there are all kinds of statements about this thing, and it’s not always clear what is true, or what order things happened in, but my understanding is that these
discrepanciesmisstatementslies were not material, impeded nothing, and were not charged by the original investigators. Only when the Special Counsel was rummaging around for someone to have leverage over did they trump this up and charge Flynn.Prosecutors Run Wild™
Kevin M (ab1c11) — 5/1/2020 @ 2:07 pmI think you’d have a different impression if it was your client, Raggy.
But your “show me the man, and I’ll show you the crime*” attitude is pretty much as I’d expect.
Kevin M (ab1c11) — 5/1/2020 @ 2:10 pmI don’t think “I only broke the law because the cops didn’t like me.” is a real defense.
If the law is moribund, and only ever used as a pretext, it is. If they search your house looking for evidence of “adultery” (still on the books in places) and find your pot and charge you for that, what is your defense?
Kevin M (ab1c11) — 5/1/2020 @ 2:12 pmBut your “show me the man, and I’ll show you the crime*” attitude is pretty much as I’d expect.
In that case you’d be an idiot. Not to say you are. Naturally.
The real “fruit of the poisonous tree” doctrine…which you don’t begin to comprehend…has always struck me as the quintessential elitist doctrine that I think it obviously IS. It tends to forgive otherwise unquestionably guilty criminals, punish society, and leave offending LEOs right where they were. This is simple stupidity.
If you are so puritanical about the law under which you contend Flynn was prosecuted, I’ll look for you to be a prominent leader of a reform movement to repeal it.
Ragspierre (d9bec9) — 5/1/2020 @ 2:26 pm@49
No. Everything about those investigations was beardy.
The high level (7th floor) FBI folks conducting the investigation, itself, is highly unusual.
Going around the WhiteHouse counsel, per policy, to interview Flynn was against precedents and rules. Even after the FBI and other government agencies (ie, CIA) found no derogatory information on Flynn.
There are no good reasons why the Special Counsel took another bite at Flynn, when Strokz/Preistep/Comey themselves didn’t charge Flynn.
Prosecutors are extremely good at justifying their actions within the structures of the law.
Just because the rules are there doesn’t make it right.
whembly (f54d88) — 5/1/2020 @ 2:31 pmJust because the rules are there doesn’t make it right.
That’s sort of true. And you can’t describe a system where every outcome is “right”. Partly because there is no universal “right”. At best, you can strive for a system if imperfect rules.
This is one reason I constantly preach against the use of the term “criminal justice system”. We don’t have one, can’t have one, and the whole term is gross false advertising. On a good day, we have a criminal law system. On many days we have a sad tyranny where all the crooked timber of humanity is manifest.
If you want “right” or “justice” you’ll have to wait until you leave this life.
Ragspierre (d9bec9) — 5/1/2020 @ 2:43 pm@53
I don’t buy that.
The memo recently released stated that by Jan 4th, the FBI wanted to close that investigation due to “No derogatory information was identified in FBI holdings,” the memo stated. But, Peter Strzok intervened to keep it opened.
Sauce:
whembly (f54d88) — 5/1/2020 @ 3:00 pmhttps://www.scribd.com/document/459202552/CROSSFIRE-RAZOR-FBI-Exonerated-Flynn-But-Strzok-Reopened-Case-Against-Him#from_embed
The intellience that President Trump heard that he couldn’t talk about (even though the gist of it was published in the New York Post two weeks ago:
https://nypost.com/2020/04/16/all-we-know-about-wuhan-lab-that-may-have-unleashed-covid-19/
is probably a cover story.
I think it was the other lab – the Wuhan Center for Disease Control and Prevention – located about 300 yards from the wet market.he wet market is significant, because, even if it had nothing to do with te origin of the dsease, they would have wanted to pick a nearby location as the false origin as then many of the subsequent events to be expected would be the same.
About the young girl who worked at the Wuhan Institute of Virology who was made into a scapegoat:
The first question is, how could Chinese officials know this? The only way would be is that they [looked] for some low ranking person they could blame [after the epidemic had broken out in Wuhan]
This is from the New York Times story:
https://www.nytimes.com/2020/04/30/us/politics/trump-administration-intelligence-coronavirus-china.html
A lack of Chinese reaction is probably less significant than it might seem. They[re probably talking abot immediate reaction, but they probably would not even have known it happened right away (or there wouldt have been such an epidemic actually They would have had hundreds of virus samples, and unless they deliberately infected people, they would have no idea that any particular escape was extremely serious dangerous to people.
It came from animals but there’s no reason to suppose it happened in Wuhan. Those bats most likely to have carried the virus don’t live anywhere near there.
Sammy Finkelman (af3697) — 5/1/2020 @ 3:10 pmOff topic:
https://nypost.com/2020/04/28/central-park-shows-just-how-over-fearful-of-coronavirus-weve-become/
There are dangers imagines and there are dangers overlooked. Like putting two infected people next to each other.
Sammy Finkelman (af3697) — 5/1/2020 @ 3:16 pmPatterico has spoken disapprovingly of Andy McCarthy “who these days routinely adopts absurd Trumpist positions and gives a thin and easily pierced intellectual cover for them. “
I subscribe to McCarthy’s podcasts. His most recent podcast deals with the Flynn case. If you are interested in his views you can find it on iTunes, googleplay, and other sites.
Stu707 (52fdfe) — 5/1/2020 @ 3:58 pm“Also, I apologize for claiming Patterico omitted mention of, and implying Patterico was unaware of, a document that he specifically mentioned at the end of his post that he said he would address in a separate post. Next time I pledge to read his entire post before making incorrect accusations like that.”
Patterico (115b1f) — 5/1/2020 @ 7:54 pmI see no need to apologize for suggesting that you might not have been aware of something you did not specifically mention anywhere in your original post including the final paragraph, the hand-written note reportedly authored by Bill Priestap.
I understand that you say in your last paragraph that in a forthcoming post you will address the alleged set-up to get Flynn fired and get him to lie. In my first post I asked what you thought the FBI agents were trying to do by interviewing him. I asked for your opinion.
Stu707 (52fdfe) — 5/2/2020 @ 11:24 am“The FBI Set Flynn Up to Preserve the Trump–Russia Probe . . . Perjury trap was not score-settling. To investigate the president, it was a practical necessity to sideline his chosen national-security adviser. Michael Flynn was not the objective. He was the obstacle.”
— – Andrew McCarthy
Colonel Haiku (2601c0) — 5/2/2020 @ 12:36 pm@67, that’s a plausible theory of a conspiracy to get the president. But so far it’s completely unsupported by any evidence. There have been multiple investigations by people working for Trump and so far none has produced any evidence. Indeed Barr’s justice department has only decided to indict 1 lower level staff lawyer. This is true even though Trump is willing to fire DOJ employees who appear loyal to him if they don’t prosecute his political enemies.
Time123 (ca85c9) — 5/2/2020 @ 12:45 pmLet me be clear. I’m 100% willing to believe the FBI was out to get him. But there needs to be some evidence. So far there isn’t.
Time123 (ca85c9) — 5/2/2020 @ 12:46 pmI would like to see an explanation as to why Flynn was treated differently than Hillary. The Hillary e-mail investigation proved to me that the leadership at the FBI lacked any semblance of integrity or ethics. Hillary was allowed to have lawyers present. Flynn was told he didn’t need them for his “counter-intelligence”. Investigation. This seems to me an act of bad faith on the part of the fbi. We already know what Patterico’s conclusions are. He will Provide evidence to prove his point. I suspect we will not see any evidence that would be counter to the conclusion he already reached. . A more interesting exercise, would be for him to take the other side. Argue for the defense. That would be more interesting, but I doubt it is worth his “valuable time”.
DaveMac (4cc9b4) — 5/2/2020 @ 1:44 pmThat allegation is based on nothing at all. It’s absurd on so many levels — even if there were any reason to think Flynn’s lawyers were willing to be so unethical, why on earth would they not want to trumpet to him as their client that they had secured a deal to protect his son from prosecution? I know when I negotiate on behalf of my client and get my opposite number to agree to something my client will like, I rush to tell him.
But here’s the part that makes it particularly dumb as an allegation: if it were true, then it would refute the argument that Flynn was coerced into the deal by the threat of prosecuting his son.
David Nieporent (9c8c00) — 5/2/2020 @ 7:27 pmFlynn was convicted of a crime by a jury of his peers. Beyond a reasonable doubt. The Trumpkins can do their version of Making a Murderer, but I had little interest in the original and I will have even less in the Trumpkin sequel.
Leviticus (6159e1) — 5/2/2020 @ 7:39 pmWhoops- more convincing than that. He plead guilty.
My poor memory aside, I stand by my larger point.
Leviticus (6159e1) — 5/2/2020 @ 7:50 pmWell, I cannot speak for them. But my best estimate is that the point of interviewing him is to see how he responds. If he tells the truth, then they may decide that there’s nothing to see here. But if he lies, then they (a) have reason to suspect there’s something more nefarious going on (because why else would he lie?); and (b) have leverage against him, since he has now definitely committed a crime. (Whether a lie to the FBI actually hinders the investigation is not an element of the crime.)
You may think it terrible that the FBI does this sort of thing to suspects, but they do all the time. This is not some special negative treatment that Flynn got. It might be great if 18 USC § 1001 were narrowed, both by (a) reversing Brogan and reviving the exculpatory no doctrine, and (b) requiring proof that a lie actually obstructed an investigation. But that’s not the law, and if we’re going to start criminal justice reform, let’s not start with leniency to a well-connected senior government official, okay?
David Nieporent (9c8c00) — 5/2/2020 @ 7:51 pmAndy McCarthy’s narrative makes more sense to me than yours does.
The evidence presented here to counter that narrative are Flynn’s official representations to the contrary, and an interpretation of the post-hoc emails between the lawyers.
I’m not sure why you think the official “on book” claims are of relevance in making a judgement on whether there was an “off book” deal or not. Since we would expect all of that ‘evidence.’ irrespective of whether there was or was not an “off book” deal, it simply isn’t probative.
I agree the “on book” evidence makes it harder for Flynn to defeat his conviction, but that doesn’t mean they tell us whether or not there was an off-book side deal not to prosecute his son, because the “on book” evidence is what the prosecutors are ostensibly buying with their side offer – his guilty plea and acknowledgement that it is a ‘true’ guilty plea – without any reference to the side deal.
On the other bit of evidence cited here, we have your interpretation of the emails versus the McCarthy interpretation. I’m going to set aside the question of whether an emailed denial is to be credited as a truthful statement to begin with – we’ll assume it was a truthful expression. Both you and McCarthy agree on the motivation behind the remark – that the prosecutor doesn’t want the side-deal as part of the official bargain, since it would have to be disclosed in any later prosecutions in which Flynn testified.
Since the motivation to do a side-deal, and keep it off books, and to not offer the side-deal at all, are the same, and explicitly acknowledged by the prosecutor, we can only speculate. But I find McCarthy’s story more compelling, because it fits with Flynn’s behavior – which was to plead guilty to the offense. An offense I don’t think he should have plead guilty to, given the paucity of evidence against him satisfying the elements of the charge. Now, could he have plead guilty ‘hoping’ it would mean they left his son alone, without any express statement to that effect? Yes. But that’s a hell of a gamble. It’s a worse gamble than hoping the government would stick to a non-official side deal.
I think reasonable people can differ on which narrative they find more compelling. I don’t think the gratuitous shot at Andy McCarthy was justified.
D.GOOCH
GOOCH (d83d3a) — 5/3/2020 @ 1:36 pm@75
Absolutely.
Don’t forget, Andy McCarthy gave Comey’s FBI every. single. benefit. of. doubt. early on in this ordeal.
He would argue that the FBI/DOJ *must* have had some strong evidence that was not public to justify these actions. Everything from the FISA applications, Flynn’s plea, Mueller’s Special Council Office, etc. It wasn’t until shortly after Mueller’s special council that he became more critical over this ordeal. I know, because he used to drive me nuts with his blind faith that everything was kosher.
Andy has finally recognized that Comey, Strzok et. el. wanted to keep investigating Trump post-inauguration so that they can be #Resistance with their like-minded anti-Trumpian bubble. But, Flynn needed to go because he would be able to sniff that out in a heart beat to put a stop to it.
whembly (c30c83) — 5/4/2020 @ 6:34 pmThis is one step above Clinton Body Count conspiracy theorizing. It may sound good in the pitch for a Netflix show, perhaps. But framing someone to get him out of the way (of what? the investigation that they conducted that didn’t produce evidence to get Trump?)?
And it ignores the fact that Flynn was fired for lying to Pence about his conversation with Russians, not for lying to the FBI.
David Nieporent (9c8c00) — 5/5/2020 @ 3:10 pm