Judge Emmet Sullivan on Monday responded to Michael Flynn’s request for an order from the court of appeals to force him to dismiss the case against President Trump’s former national security advisor. In the 46-page brief filed on Sullivan’s behalf, one fact stands out above the others, a stunning bombshell: the judge has not shown that he’s clear as to what Flynn said to the FBI or why it was said to be a lie.
Curiously, the judge now defends his orders denying Flynn’s inquiry into these two pesky issues as “not relevant and material to Mr. Flynn’s offense or sentencing.”
But nothing could be more relevant.
Flynn is charged with one count of lying to the FBI. To prove Flynn committed a crime, the government would have to show, 1) what Flynn said to the FBI about his call with Russian Ambassador Sergey Kislyak, 2) what actually happened during the call with Kislyak, 3) that Flynn intentionally deceived or attempted to deceive the FBI, and 4) that the FBI had a legitimate law enforcement reason to look into the call in the first place and wasn’t just trying to lay a perjury trap for a political target.
But before we examine Sullivan’s brief, it’s important to review why the prosecution fell apart in the first place.
The Department of Justice stepped in to overrule ethically challenged Robert Mueller-alumnus Brandon Van Grack’s political prosecution of Flynn because the government edited Flynn’s statement so many times that it lost track of what Flynn actually said to the FBI; interviewing agents admitted Flynn apparently did not intend to mislead the FBI; Flynn pleaded guilty without being given access to the transcripts of his conversations with Kislyak (making it impossible to verify that he “lied” to the FBI); the FBI’s official purpose for interviewing Flynn was a laughable pretext based upon an obscure un-enforced law that attempts to criminalize contact with foreign governments.
Flynn was a member of the incoming administration and his contact with the Russian government was authorized by the president-elect and consistent with the peaceful transition of power.
Sullivan’s brief is a maddening read for anyone familiar with the Flynn case. For instance, instead of clearly restating Flynn’s supposed lie, the Judge employs vague and misleading paraphrasing that could have come from a CNN article: “The statement of offense recounted . . . [t]wo . . . lies Mr. Flynn told to the FBI, in a January 24, 2017 interview, regarding his contacts with Russia and other countries regarding U.S. foreign policy.”
As it happens, that’s almost verbatim what CNN wrote in 2017: “Former national security adviser Michael Flynn pleaded guilty Friday to lying to the FBI about his contacts with the Russian ambassador during the presidential transition last year.” That construction implies that Flynn must have said he never spoke to any Russians. That’s not what is alleged to have happened. Flynn freely admitted talking to Kislyak. The problem is that the statement of offense itself doesn’t actually say what Flynn said to the FBI but instead paraphrases Flynn’s “lie,” inaccurately as Margot Cleveland recently noted. She wrote,
However, the transcripts released Friday establish that, contrary to the special counsel office’s attestation, Flynn never asked the Russian ambassador to “not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.” In fact, Flynn never raised the ‘U.S. Sanctions’—defined by the special counsel’s office as the sanctions announced by Obama Dec. 28, 2016, in Executive Order 13757 — with the Russian ambassador at all . . . While the Obama administration ejected the Russian personnel in response to the Kremlin’s interference with the 2016 election, the expulsions were not part of Executive Order 13757 and thus were not ‘U.S. Sanctions’ as defined in the Flynn Statement of Offense.
Flynn, not remembering clearly the details of the call, initially trusted the government’s paraphrasing of the original Kislyak/Flynn conversation. How was he supposed to know or even suspect that the government was withholding original transcripts that show that his denial was factually truthful?
The judge’s brief also side-stepped the problem of materiality. Flynn’s conversation with Kislyak was legal and proper. The FBI shouldn’t have been meddling in the peaceful transition from Obama-led diplomacy to Trump-led diplomacy. In order to prove a crime, the FBI had to justify why Flynn’s “lie” was material to a bona fide criminal investigation.
The Justice Department’s motion concedes that the FBI can’t show this but the judge’s attorney nevertheless wrote: “Judge Sullivan also found again, as a legal and factual matter, that Mr. Flynn’s false statements to the government were material.” How can he continue to assert that the FBI was there for a legitimate criminal investigation after all we now know? The brief does not bother to explain.
Perhaps conceding that Flynn’s conversation with the Russian ambassador was a big fat nothing, the judge then turns to uncharged conduct suggesting that Flynn now needs to be prosecuted for his work involving Turkey. Flynn did some work for a Turkish national, not the Turkish government. The government has taken the position that because the interests of Turkey aligned with Flynn’s client, he should have registered as a foreign agent. Never mind that a different federal judge crushed this dubious theory when the government attempted to prosecute Flynn’s business partner for exactly the same thing.
The judge goes on to say that if the government won’t pursue its prosecution of Flynn, the judge should be free to criminally punish Flynn for changing his plea from guilty to innocent. The judge’s response cites no example in 1,000 years of Anglo-Saxon jurisprudence of a defendant being charged with criminal contempt for changing his plea from guilty to innocent. But let’s follow that rabbit down the hole for a moment.
In order to prove criminal contempt, the judge would have to find that Flynn intentionally committed some kind of fraud by pleading guilty—never mind the fact that the government withheld the key exculpatory documents that later proved his innocence.
Many familiar with Sullivan’s history had hoped that he would take action to investigate the prosecutorial misconduct that now convincingly has been established as the Russian collusion hoax continues to unravel. We owe a debt of gratitude to Flynn for persisting at great personal cost where others quietly surrendered to the Mueller steamroller. It’s worth remembering that during its reign of terror, the Mueller investigation executed 500 search warrants, conducted 500 interrogations, and served 2,800 subpoenas to “investigate” a hypothesis that the FBI debunked three months before Mueller started.
It’s also worth remembering that nobody has ever been convicted of “interfering” in the 2016 election and the House Intelligence Committee concealed a stunning admission that examination of the Democratic National Committee’s servers led to no direct evidence that the Russians stole DNC emails. Moreover, the government abandoned its “Russian troll farm” case earlier this year.
Although many of Mueller’s victims never fought back, the few who did have helped to uncover jaw-dropping evidence of bad faith in the worst political scandal in modern memory.