The Epoch Times News Analysis
The case of Lt. Gen. Michael Flynn is inevitably heading toward its conclusion. While the presiding district judge, Emmet Sullivan, is trying to keep it going, there’s only so much he can do, chiefly because there’s nobody left to prosecute the case after the Department of Justice (DOJ) dropped it last month.
In the latest developments, the District of Columbia appeals court set a hearing in the case on June 12, while the DOJ’s solicitor general himself, as well as five of his deputies, urged the court to order the lower-court judge to accept the case dismissal.
“I cannot overstate how big of a deal this is,” commented appellate attorney John Reeves, former assistant Missouri attorney general, in a series of tweets on June 1.
Personal involvement of the solicitor general “is highly unusual and rare,” he said.
“Unusual” seems a fitting euphemism for the Flynn case, which has been filled with contradictions, falsehoods, apparent blunders, extraordinary moves, and strange coincidences.
The Epoch Times has so far counted 85 such instances.
Flynn, former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, pleaded guilty on Dec. 1, 2017, to one count of lying to FBI agents during a Jan. 24, 2017, interview.
The FBI officially opened an investigation on Flynn on Aug. 16, 2016, based on a suspicion that he “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.”
What activity? The case was opened under a broader investigation into whether the Trump 2016 presidential campaign conspired with Russia to steal emails from the Democratic National Committee and release them through Wikileaks.
Flynn was an adviser to the campaign at the time.
By its own admission, the FBI had little reason to suspect the campaign.
The bureau learned from the Australian government that its then-ambassador to the UK, Alexander Downer, spoke with Trump campaign aide George Papadopoulos, who “suggested” that the campaign received “some kind of suggestion” that Russia could help it by anonymously releasing some information damaging to Trump’s opponent, former Secretary of State Hillary Clinton.
The FBI didn’t know what Papadopoulos actually said or what he was talking about.
Officially, this information was used by the FBI to comb through its databases for information on people associated with the Trump campaign and open investigations on four individuals supposedly linked to Russia.
Because Flynn’s paid speaking engagements in years past included some for Russian companies—one for Kaspersky Lab and one for RT television in Moscow—the FBI decided to open a counterintelligence investigation on the retired three-star general.
But the FBI seemed to have trouble getting its story straight.
1. Comey Contradiction
The FBI officially opened the four individual cases in mid-August 2016.
But former FBI Director James Comey testified to Congress that he was briefed already “at the end of July that the FBI had opened counterintelligence investigations of four individuals to see if there was a connection between any of those four and the Russian effort.”
2. Unlikely Target
Suspecting a man with patriotic bona fides of Flynn’s caliber of having colluded with Russia based on two speaking engagements seemed particularly unusual.
Flynn’s command of military intelligence to aid American troops in combat has earned him great praise.
“Mike Flynn’s impact on the nation’s War on Terror probably trumps any other single person,” wrote then-Brig. Gen. John Mulholland in Flynn’s 2007 performance review.
Mulholland went as far as calling Flynn “easily the best intelligence professional of any service serving today.”
Flynn was driven out of his post in 2014 after he repeatedly embarrassed President Barack Obama by insisting, contrary to the administration’s official stance, that a resurgence of Islamic terrorism in the Middle East was imminent.
Two months after his resignation, the rise of ISIS proved him right.
3. A Name for the Spotlight
The Russia probe was titled “Crossfire Hurricane” (CH), and Flynn was given the code name “Crossfire Razor.”
This was unusual, according to Marc Ruskin, a 27-year veteran of the FBI and an Epoch Times contributor.
Rank-and-file agents would never pick a name like this, he told The Epoch Times in a previous interview.
“They would mock it as being overly dramatic,” he said.
4. Snooping During Briefing
The day after opening the Flynn case, the FBI participated in a strategic intelligence briefing given to Donald Trump and two of his advisers by the Office of the Director of National Intelligence.
Because Flynn was to be present, the FBI took the extraordinary step of sending in supervisory special agent Joe Pientka to collect intel on Flynn for the investigation. Pientka was to assess Flynn’s “overall mannerisms” and listen for “any kind of admission” that could be used by the bureau, the DOJ’s inspector general (IG) said in a Dec. 9 report on the CH investigation (pdf).
The IG raised the question of whether snooping on officials the FBI is supposed to brief could have a “chilling effect” on any such intelligence briefings in the future.
5. Dossier Coincidence
The FBI directly targeted four Trump campaign aides, opening cases on three of them—Papadopoulos, Carter Page, and Paul Manafort—on Aug. 10, 2016. The IG never received an explanation for why the Flynn case was opened later. Incidentally, Page and Manafort had already been mentioned in the infamous Steele dossier since July 28, 2016. Flynn’s name, however, was only mentioned in the dossier report dated Aug. 10, 2016.
The dossier, which drummed up unsubstantiated allegations of a Trump–Russia conspiracy, was being spread to the media, the FBI, the State Department, the DOJ, and Congress by operatives funded by the Clinton campaign and the Democratic National Committee.
The CH investigation team members at the FBI told the IG they only received the dossier in September 2016, but there are indications they may have been aware of it earlier.
6. Halper Coincidence
One of the CH case agents, Stephen Somma, happened to have a longstanding relationship with Stephan Halper, a Cambridge professor who was also a longtime political operative and FBI informant.
Somma and another agent met with Halper on Aug. 11, 2016, and learned that, in a stunning coincidence, Halper was already in contact with Page, had known Manafort for years, and “had been previously acquainted with Michael Flynn,” the IG report said
The CH team “couldn’t believe [their] luck,” Somma told the IG.
7. Halper’s Story
Halper was accused of spreading rumors, starting in late 2016, that Flynn had an affair with a Russian woman while visiting the UK in 2014 for a dinner hosted by the Cambridge Intelligence Seminar co-convened at the time by Halper.
An “established” FBI informant told the CH team that the woman jumped in a cab with Flynn after the dinner and joined him for a train ride to London (pdf).
The woman in question was Svetlana Lokhova, a Cambridge historian of Russian descent. She has denied the rumor, saying that she was picked up after the dinner by her husband.
5. Dossier Coincidence
The FBI directly targeted four Trump campaign aides, opening cases on three of them—Papadopoulos, Carter Page, and Paul Manafort—on Aug. 10, 2016. The IG never received an explanation for why the Flynn case was opened later. Incidentally, Page and Manafort had already been mentioned in the infamous Steele dossier since July 28, 2016. Flynn’s name, however, was only mentioned in the dossier report dated Aug. 10, 2016.
The dossier, which drummed up unsubstantiated allegations of a Trump–Russia conspiracy, was being spread to the media, the FBI, the State Department, the DOJ, and Congress by operatives funded by the Clinton campaign and the Democratic National Committee.
The CH investigation team members at the FBI told the IG they only received the dossier in September 2016, but there are indications they may have been aware of it earlier.
6. Halper Coincidence
One of the CH case agents, Stephen Somma, happened to have a longstanding relationship with Stephan Halper, a Cambridge professor who was also a longtime political operative and FBI informant.
Somma and another agent met with Halper on Aug. 11, 2016, and learned that, in a stunning coincidence, Halper was already in contact with Page, had known Manafort for years, and “had been previously acquainted with Michael Flynn,” the IG report said
The CH team “couldn’t believe [their] luck,” Somma told the IG.
7. Halper’s Story
Halper was accused of spreading rumors, starting in late 2016, that Flynn had an affair with a Russian woman while visiting the UK in 2014 for a dinner hosted by the Cambridge Intelligence Seminar co-convened at the time by Halper.
An “established” FBI informant told the CH team that the woman jumped in a cab with Flynn after the dinner and joined him for a train ride to London (pdf).
The woman in question was Svetlana Lokhova, a Cambridge historian of Russian descent. She has denied the rumor, saying that she was picked up after the dinner by her husband.
She said Halper was the one spreading the rumor to the media and the FBI, even though he didn’t actually attend the event. She unsuccessfully sued Halper for defamation in May 2019.
Somehow, Steele also became privy to the rumor and shared it with Adam Kramer, an aide to the late Sen. John McCain (R-Ariz.). Kramer testified to Congress that he was in regular contact with Steele between Nov. 28, 2016, and early March 2017.
8. Unmasking
The names of Americans are normally masked—that is, replaced with generic names—in foreign intelligence reports. Many senior government officials have the authority to ask for names to be unmasked for various reasons, such as to understand the intelligence. There were dozens of unmasking requests for reports related to Flynn, between Nov. 8, 2016, and Jan. 31, 2017 (pdf). The number of unmasking requests has been described as alarming by some commentators, while others described it as routine.
9. Non-masking
There are also indications that Flynn’s name was never masked in summaries or transcripts of his calls with then-Russian Ambassador to the United States Sergey Kislyak on Dec. 29, 2016, and in the following days. FBI leaders were distributing the documents to top Obama officials. Even President Barack Obama himself was briefed on them on or before Jan. 5, 2017.
10. Who Briefed Obama?
Comey testified to Congress that it was then-Director of National Intelligence James Clapper who briefed Obama on the Flynn–Kislyak calls (pdf). Clapper, however, denied this to Congress.
11. ‘Unusual’
Obama’s national security adviser, Susan Rice, memorialized a Jan. 5, 2017, meeting with Obama, Comey, and then-Deputy Attorney General Sally Yates. Rice wrote in an email to herself that Obama asked Comey whether he should withhold any Russia-related information from the incoming administration and from Flynn in particular.
“Potentially,” Comey replied, adding that “the level of communication” between Flynn and Kislyak was “unusual,” she wrote. There’s no indication Flynn was talking to Kislyak unusually often. He was at the time responsible for laying the groundwork for Trump’s foreign relations as president and was frequently on the phone with foreign dignitaries.
12. Late Memo
Rice’s memo itself is unusual. She emailed it to herself more than two weeks after the meeting took place, on the day of Trump’s inauguration.
13. Strzok Intervention
On Jan. 4, the FBI was already in the process of closing Flynn’s case. But the bureau’s counterintelligence operations head at the time, Peter Strzok, scrambled to keep it open, noting that the “7th floor,” meaning the FBI’s top leadership, was involved.
14. McCabe–Comey Contradiction
Comey testified that he authorized the Flynn case “to be closed at the … end of December, beginning of January.”
But his then-deputy, Andrew McCabe, told Congress that they weren’t in “the closing planning phase” at the time.
“I don’t think a closure would have been soon,” he said.
15. Shaky Theory
FBI documents and Comey’s testimony indicate that the bureau kept the Flynn case open solely based on a legal theory that he may have violated the Logan Act, even though the DOJ made clear that such charges wouldn’t pass muster in court—nobody has ever been successfully prosecuted for a Logan Act violation and the government last tried in 1852.
The law prohibits private citizens from engaging in diplomacy on their own with countries the United States is in dispute with. Not only have questions been raised as to whether the law would pass today’s constitutional scrutiny, which places greater emphasis on First Amendment protections, but also there’s no indication the law was conceived to apply to a president-elect’s incoming top adviser.
16. Call Leaks
In early January, information about Flynn’s calls with Kislyak was leaked to then-Washington Post reporter Adam Entous. He said there was a discussion at the paper about what to do with the information, as it would have been expected of Flynn, given his position, to talk to Kislyak (pdf). In the end, the paper ran a column on Jan. 12 by David Ignatius speculating that Flynn may have violated the Logan Act if he discussed fresh sanctions imposed on Russia during the calls.
Obama imposed the sanctions on Russian entities, including its intelligence services, on Dec. 29, 2016. At the same time, he also expelled 35 Russian intelligence officers.
17. Denial
The calls “had nothing whatsoever to do with the sanctions,” incoming Vice President Mike Pence told CBS News on Jan. 15, 2017, in an interview the network almost wholly dedicated to questions about Russia.
This wasn’t completely true.
Kislyak did bring up the issue of sanctions during the call, though Flynn didn’t engage him in a conversation on the topic.
Flynn raised the issue of the expulsions, which is technically a separate issue from sanctions, though both were announced at the same time. He asked for “cool heads to prevail” and for Russia to only respond reciprocally, as further escalation into a “tit for tat” could lead to the countries shutting down each other’s embassies, complicating future diplomacy.
18. ‘Blackmailable’
Yates said she wanted to inform Trump’s White House about the Kislyak calls as Russia would know that what Pence said wasn’t true and could thus blackmail Flynn with the information, according to an Aug. 15, 2017, FBI report from her interview with the Mueller team.
According to Ruskin, this was hardly a blackmail situation, which ordinarily involves serious compromising information, such as evidence of bribery or sexual misconduct.
Comey acknowledged to Congress in March 2017 that the idea that Flynn was compromised struck him “as a bit of a reach.”
19. Comey Blocked Information
Despite issues with Yates’s argument, informing the White House may have indeed cleared up the situation. However, Comey blocked it, saying it could have interfered with the investigation of Flynn—despite that it appears there was nothing for the bureau to investigate. At that point, the DOJ already had disapproved of the Logan Act idea. In any case, the probe was supposed to be about Russian collusion. The bureau could have closed it and opened a new one on the Logan Act, if it indeed had had sufficient predication. But it never opened such an investigation, the DOJ noted in its motion to dismiss Flynn’s case.
20. Another Comey–McCabe Contradiction
In the days before Jan. 24, 2017, top FBI officials were discussing plans to interview Flynn. Comey said the point of the interview was to find out why Flynn didn’t tell Pence that sanctions were discussed during the call (even though Flynn wasn’t actually the one talking about sanctions).
“My judgment was we could not close the investigation of Mr. Flynn without asking him what is the deal here. That was the purpose,” Comey testified.
McCabe, however, told a different story when then-Rep. Trey Gowdy (R-S.C.) asked him, “Was [Flynn] interviewed because the Vice President relied upon information from him in a national interview?”
“No. I don’t remember that being a motivating factor behind the interview,” McCabe said.
21. No Mention of Pence
During the interview, the agents didn’t ask Flynn about what he did or didn’t tell Pence—an unusual approach if the point, as Comey said, was to find out why Flynn hadn’t “been candid” with Pence. The FBI, in fact, had no idea what Flynn did or didn’t tell Pence.
22. Slipped-In Warning
Agents regularly warn interviewees that lying to federal officers is a crime. Before the Flynn interview, however, McCabe’s special counsel Lisa Page emailed another FBI lawyer asking how the warning should be given and whether there was a way “to just casually slip that in.”
23. No Warning
In the end, the agents never gave Flynn any such warning.
24. ‘Get Him to Lie … Get Him Fired?’
The FBI officials agreed that the agents wouldn’t show Flynn the transcripts of the calls. If he said something that diverged from them, they would ask again, slipping in some words from the transcript. If that didn’t jog his memory, they were not to confront him about it.
On the day of the interview, then-FBI head of counterintelligence Bill Priestap wrote a note saying he told other officials to “rethink” the approach.
“What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” he wrote, noting, “We regularly show subjects evidence.”
Apparently, his concerns were ignored.
25. Discouraging Having a Lawyer Present
On the day of the interview, McCabe spoke with Flynn on the phone to ask him for the interview. McCabe said he told Flynn he wanted the interview done “as quickly, quietly, and discreetly as possible.” If Flynn wanted anybody to sit in, such as one of the White House lawyers, the DOJ would have to be involved, McCabe told him.
According to Ruskin, that was “egregious” behavior akin to discouraging a subject of an investigation from having a lawyer present for an interview.
26. No White House Notice
An FBI interview of a president’s national security adviser is a big deal. Normally, it would warrant a back-and-forth between the White House and the bureau on the scope, content, purpose, and other parameters. Most likely, multiple White House lawyers would sit in.
Comey, however, said in a public forum that he just sent the agents in, taking advantage of the fact that it was “early enough”—only four days after the inauguration.
27. No Notice Given to DOJ
According to Yates, Comey didn’t consult the DOJ about his intention to interview Flynn, even though the department would usually be involved in such decisions.
28. Not Quite a Denial From Flynn
After the interview, in which Strzok and supervisory special agent Pientka extensively questioned Flynn about his conversations with Kislyak, Comey said that Flynn denied talking to the ambassador about the sanctions. But the agents’ notes indicate that though Flynn denied it at first, he seemed unsure when the agents asked again.
“Not really. I don’t remember. It wasn’t, ‘Don’t do anything,’” he said, according to the notes.
Flynn said in a Jan. 29 declaration to the court that he still doesn’t remember talking to Kislyak about sanctions.
“I told the agents that ‘tit-for-tat’ is a phrase I use, which suggests that the topic of sanctions could have been raised,” he said.
29. UN Vote Denial
Based on the agent’s notes, Flynn did deny asking for Russia to delay a U.N. vote in Israeli settlements. One of the call transcripts indicates he in fact made such a request.
Flynn told the agents he was calling multiple countries regarding the vote, but it was more an exercise of how quickly he could get foreign officials on the phone since there was no way the transition team could convince enough countries to actually change the outcome. Indeed, the vote passed with only the United States abstaining.
30. No Indication of Deception
The agents came back with the impression “that Flynn was not lying or did not think he was lying,” according to Strzok.
Comey seemed on the fence.
“I don’t know. I think there is an argument to be made that he lied. It is a close one,” he testified.
31. Flynn Knew They Knew
According to McCabe, Flynn expressed awareness before the interview that the FBI knew exactly what he said during the Kislyak calls.
“You listen to everything they [Russian representatives] say,” Flynn told him, according to McCabe’s notes from that day.
32. Belated Report
The FBI interview summary, form FD-302, is required to be completed within five days of the interview. Flynn’s, however, took more than two weeks.
33. Rewritten 302
Strzok texted Page on Feb. 10, 2017, he was “trying to not completely rewrite” the 302 “so as to save [redacted] voice.” The redacted name was most likely Pientka’s.
34. Missing Original
Flynn was ultimately provided two draft versions of the 302—one from Feb. 10, 2016, and one from the day after. But based on Strzok’s texts, there should have been at least two draft versions produced on Feb. 10, 2016, or before.
In fact, Judge Sullivan said in a Dec. 17, 2018, minute order that the 302 “was drafted immediately after Mr. Flynn’s FBI interview.” It’s not clear what the judge was basing this assertion on or what happened to the early draft.
Flynn’s current attorney, former federal prosecutor Sidney Powell, later said she’d found a witness who saw an earlier draft and that it said “that Flynn was honest with the agents and did not lie.”
35. No Reinterview
It is common that when the FBI has questions after an interview about the candor of the subject, it would question the person again. But in this case, the FBI showed no interest in doing so.
36. Still Investigating What?
After the interview, Comey promptly agreed to Yates informing the White House about the call transcripts. Flynn was fired two weeks later. But, somehow, the investigation was still not over.
Comey said in his March 2, 2017, testimony that the bureau wasn’t investigating any possible Logan Act violation by Flynn and wouldn’t do so unless the DOJ directed it.
But he said the investigation was “obviously” still ongoing and “criminal in nature.”
McCabe said that “even following the interview on the 24th, we had a lot of work left to do in that investigation.”
By mid-February, the status of the probe wouldn’t have “changed materially” in his belief, he said.
“Like we were pursuing phone records and toll records at that time,” he said. “There were all kinds of really very basic foundational investigative activity that had to take place and we were committed to getting that done.”
It’s unclear what the point of the investigation was.
37. FARA Papers
Around Christmas 2016, Flynn found in the office of his defunct consultancy, Flynn Intel Group (FIG), a letter from the DOJ telling him he may need to file foreign lobbying disclosures under the Foreign Agents Registration Act (FARA).
The DOJ’s National Security Division (NSD) wanted to know about a job FIG did earlier that year for Turkish businessman Kamil Ekim Alptekin.
It should have been a routine procedure. Washington lobbyists commonly flunk FARA rules and the NSD usually just asks them to register retrospectively because FARA cases are difficult to prosecute. Flynn hired a team from Covington and Burling led by Robert Kelner, a “never-Trumper” and an expert on FARA, to prepare the paperwork.
This time, the NSD was unusually eager. Heather Hunt, then-FARA unit chief herself, was repeatedly prompting the lawyers to expeditiously file the papers.
“We’ve never seen her this engaged in any matter (ever),” Kelner noted in an email to his colleagues.
Even the DOJ’s then-counterintelligence chief, David Laufman, got involved and personally questioned Covington on the FARA filings.
38. Comey Memo
Comey wrote in a personal memo that Trump told him in private in February 2017 that he hoped Comey could “let Flynn go.” Trump denied saying that. Trump’s lawyers have argued that the president didn’t know at the time that Flynn was still under investigation.
Comey’s leaking the content of this and other memos to the media served as a catalyst for then-Deputy Attorney General Rod Rosenstein appointing former FBI head Robert Mueller as a special counsel to take over the CH probe.
39. Rosenstein’s Scope Memo Still Alludes to Logan Act
Even though Comey said in March 2017 that the FBI wasn’t investigating Flynn for a Logan Act violation, Mueller received in August 2017 a mandate from Rosenstein (pdf) to probe whether Flynn “committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition.” That appears to be an allusion to the Logan Act.
Rosenstein testified to Congress that he simply put in the scope of Mueller’s mandate whatever the CH team was investigating at the time.
The scope memo also tasked Mueller with probing whether Flynn lied to the FBI during the interview, whether he failed to report foreign contacts or income on his national security disclosure forms, and whether the Turkey job by his firm meant that he “committed a crime or crimes by acting as an unregistered agent for the government of Turkey.”
40. Lawyers Delay Informing Flynn?
By mid-August 2017, Covington learned that prosecutors were looking at Flynn’s FARA filings. But the lawyers didn’t inform Flynn until weeks later, according to his current lawyer, Powell.
41. Conflict of Interest
Convington faced a conflict of interest in Flynn’s case, because it was in their interest to say any problems with the FARA papers were Flynn’s fault, while it was in Flynn’s interest to say the lawyers were responsible.
Covington and the Mueller team agreed the firm can continue to represent Flynn if they tell him about the conflict and he consents to it. Powell said the conflict was so serious bar rules required the lawyers to withdraw.
42. Lawyers Don’t Take Responsibility
In Flynn’s situation, it would have been the ethical thing to do for the lawyers to take responsibility for any problems with the FARA papers, according to Powell. But they didn’t do that.
43. Lawyers Express Apprehension About Being Targeted Themselves
The Covington lawyers on several occasions expressed concern that Mueller may target them with a crime-fraud order, a measure that allows prosecutors to break through the attorney-client privilege if they get a judge to agree that the client was conferring with lawyers to further a crime or some misconduct. The lawyers were aware Mueller’s team had already used the order against Manafort.
Facing a crime-fraud order would cause bad publicity for Covington, Powell noted. Leading Flynn into the plea allowed the firm to avoid it.
44. Perilous Interviews
In early November 2016, Mueller prosecutors, led by Brandon Van Grack, told Covington that Flynn was facing charges for lying to the FBI and lying on the FARA papers. They asked for Flynn’s cooperation with the broader Russia probe, particularly regarding any communications he or other Trump people had with foreign officials.
Van Grack wanted Flynn to sit down for a series of interviews. He offered Flynn limited immunity, but acknowledged that Flynn could still be charged for lying during the interviews.
The lawyers noted that this could have been dangerous for Flynn, even if he was completely honest.
“To ask someone about meetings and calls during an incredibly busy period of his life as an evaluation of candor is not a particularly attractive option,” Kelner told the prosecutors during a conference call (pdf).
Yet ultimately the Covington lawyers agreed to make Flynn available for the questioning.
45. Belated Consent
Covington only asked Flynn for consent with their conflict of interest in writing on Nov. 19, 2017, after Flynn had already been through two days of interviews with the prosecutors.
46. Wrong Standard
The consent request, sent via email, cited the wrong bar rule for handling of conflicts. The correct rule “creates a much lower threshold at which a lawyer must bow out,” Powell said in a court filing.
47. Innocent but Guilty
The Covington lawyers repeatedly told the prosecutors that they didn’t think Flynn was guilty of a felony. They were also told that Strzok and Pientka “saw no indication of deception” on Flynn’s part and had the impression after the interview that he wasn’t lying or didn’t think he was lying. But the lawyers still convinced Flynn that he should plead guilty to the felony charge.
48. Threat to Son
According to Flynn’s declaration, the Covington lawyers told him that if he didn’t plead, the prosecutors would charge his son (who had a four-month-old baby at the time) with a FARA violation, because the son worked for Flynn’s firm and was involved in the Turkey project. If he did plead, however, his son “would be left in peace,” Flynn said.
The pressure campaign, it seems, was also reflected in media leaks.
“If the elder Flynn is willing to cooperate with investigators in order to help his son … it could also change his own fate, potentially limiting any legal consequences,” NBC News reported on Nov. 5, 2017, referring to “sources familiar with the investigation.”
“To twist the father’s arm with regard to his child is a pretty low thing to do,” Ruskin commented.
49. 302 Not Shared
The prosecutors refused to share with Flynn the 302 from his January interview until shortly before he agreed to plead. Also, they only shared the final version of the report, which was significantly different from its previous drafts, Flynn later learned.
50. Strzok Texts Understatement
Shortly before Flynn signed his plea, the prosecutors disclosed to his lawyers that one of the agents who interviewed Flynn (Strzok) was being investigated by the IG for potential misconduct. They also disclosed that the agent expressed in electronic communications “a preference for one of the candidates for President.”
This was far from covering the bombshell the Strzok texts actually were, Powell noted.
Strzok not only voiced preference for Clinton, but cursed at and repeatedly derided Trump. In one 2016 text, he argued that the FBI needed to take action akin to an “insurance policy” in case Trump won. Strzok later said he was referring to proceeding in the CH probe more aggressively out of a worry that Trump may interfere with it if elected.
51. Lawyers Never Told Flynn?
Flynn said the Convington lawyers never told him that the FBI agents didn’t think he lied. Even after he specifically asked about the agents’ impression, the lawyers didn’t disclose the information and instead told him that “the agents stood by their statement.”
“I then understood them to be telling me that the FBI agents believed that I had lied,” Flynn said, explaining that had he known, he wouldn’t have signed the plea.
52. Statement of Offense Inaccurate
As part of his statement of offense, Flynn affirmed that FIG’s FARA papers contained three false statements and one omission. Yet, on all four points the statement of offense was inaccurate, Powell demonstrated (pdf).
“The prosecutors concocted the alleged ‘false statements’ by their own misrepresentations, deceit, and omissions,” she said in a court filing (pdf).
The FARA papers were “substantially correct” and any deficiencies were the fault of Covington, she said.
53. Lawyers Knew
In an internal email three days before Flynn signed his plea, one of the Covington lawyers pointed out that some of the “false statements” attributed to Flynn in the statement of offense regarding the FARA filings were “contradicted by the caveats or qualifications in the filing.”
It seems the lawyers failed to correct the issue, since the statement of offense remained inaccurate. They also never informed Flynn of the issue, according to Powell.
54. Judge Recusal
Flynn entered his plea on Dec. 1, 2017. Shortly after, the judge who accepted the plea, Rudolph Contreras, recused himself from the case. The apparent but undisclosed reason was likely his personal relationship with Strzok.
55. Strzok Texts Media Coincidence
While the IG had found Strzok’s texts already in June 2017, their first disclosure in the media came from The Washington Post the day after Flynn entered his guilty plea. Powell noted how convenient the timing was for the prosecutors.
56. Side Deal
The prosecutors conveyed to Covington an “unofficial understanding” that they were “unlikely” to charge Flynn’s son in light of Flynn’s agreement to continue to cooperate with the Mueller probe, one of the lawyers said in an internal email.
Such an under-the-table deal is “unethical,” Ruskin said.
57. Avoiding Giglio Disclosure
Another internal Covington email suggests the prosecutors intentionally kept the deal regarding Flynn’s son unofficial to make future prosecutions easier.
“The government took pains not to give a promise to MTF [Michael T. Flynn] regarding Michael [Flynn] 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,” the email reads.
“Giglio” refers to a 1972 Supreme Court opinion that requires prosecutors to disclose to the defense that a witness used by the prosecutors has been promised an escape from prosecution in exchange for cooperation.
58. Questionable Disclosures
After the case was assigned to Judge Sullivan, he entered an order for the DOJ to give Flynn all exculpatory information it had, as the judge does in all cases.
The prosecutors, however, weren’t prompt in revealing the information. The Strzok texts, for instance, were only provided to Flynn after they were released publicly.
59. Business Partner Coincidence
One day before Flynn’s sentencing hearing, his former business partner, Bijan Rafiekian, was charged with a failure to register as a foreign agent in relation to FIG’s Turkey job.
Powell called it a “shot across the bow” which the Mueller team wanted to “leverage” against Flynn.
“Mr. Van Grack used the possibility of indicting Flynn in the Rafiekian case at the sentencing hearing to raise the specter of all the threats he had made to secure the plea a year earlier—including the indictment of Mr. Flynn’s son,” she said in a court filing (pdf).
60. Judge Makes False Accusations, Backtracks
During a Dec. 18, 2018, sentencing hearing, Sullivan questioned the prosecutors about whether they considered charging Flynn with treason.
“Arguably, you sold your country out,” he told Flynn, saying that he acted as an agent of Turkey while in the White House.
That was wrong on multiple levels. Not only does treason not apply to unregistered lobbying, but the Turkey job had virtually no impact on American interests. It prepared a plan to lobby for the extradition of an Islamic cleric, Fethullah Gülen, who lives in exile in the United States, and whom Ankara blamed for instigating a coup attempt in 2016. Almost none of the plan materialized. Most importantly, Flynn shuttered his firm shortly after the election to comply with Trump’s promise of no lobbyists in his administration.
Sullivan corrected himself later in the hearing, but many media outlets still put his original remarks in headlines.
61. MSNBC Coincidence
While Sullivan’s question about treason and his gaffe about the Turkey job seemed to come out of left field, they mirrored MSNBC talking points from days prior.
The day before Flynn’s sentencing hearing, MSNBC’s Rachel Maddow claimed Flynn and Rafiekian “disguised” the origins of payments for the Turkey job so they could “secretly work in the interest of a foreign country without anybody knowing it while they were also working high-level jobs in intelligence inside the U.S. government.”
“Flynn really thought he could be a national security adviser, the national security adviser in the White House, and a secret foreign agent at the same time,” Maddow said.
Three days before Flynn’s sentencing hearing, Malcolm Nance, a counterterrorism commentator, said on MSNBC that Flynn “may have been one step away from treason” and “pulled back by cooperating” with Mueller.
62. Judge Fails to Satisfy Plea Rules
Federal Rules of Criminal Procedure state in Rule 11 that “before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”
As such, Sullivan was required to check that Flynn’s alleged lies to the FBI were “material,” meaning relevant enough to potentially affect an FBI investigation.
But the judge acknowledged during the sentencing hearing that he hadn’t done so.
“It probably won’t surprise you that I had many, many, many more questions. … such as, you know, how the government’s investigation was impeded? What was the material impact of the criminality? Things like that,” he said at the conclusion of the hearing.
There’s no indication Sullivan has asked those questions since.
63. Unacceptable Plea
Not only could Sullivan not have accepted Flynn’s plea before determining materiality, there’s evidence he was in fact required to refuse it.
Rule 11 requires the court to “determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).”
In Flynn’s case, there actually was a threat and a promise left out of the deal—the “unofficial understanding” that his son was “unlikely” to be charged if Flynn cooperated.
64. Lawyers Insisted Flynn ‘Stay on the Path’
Before the sentencing hearing, the Covington lawyers told Flynn to “stay on the path” and to refuse if Sullivan offered him to take his plea back, Flynn said in his court declaration.
“If the judge offers you a chance to withdraw your plea, he is giving you the rope to hang yourself. Don’t do it,” the lawyers said, according to Powell.
65. Unprepared
Flynn said the lawyers only prepared him for a “simple hearing” and not for the extended questioning Sullivan engaged in.
“I was not prepared for this court’s plea colloquy, much less to decide, on the spot, whether I should withdraw my plea, consult with independent counsel, or continue to follow my existing lawyers’ advice,” he said.
In the end, he affirmed his plea during the hearing.
66. Prosecutors Asked for False Testimony?
Flynn was expected to testify against Rafiekian in 2019, but when the moment was to come, prosecutors asked him to say that he signed FIG’s FARA papers knowing there were lies in them. Flynn, who had already fired Convington and hired Powell by that point, refused. He said he only acknowledged in hindsight that the FARA papers were inaccurate, but didn’t know it at the time.
67. Prosecutors Knew?
Powell has argued that the prosecutors knew they were asking for a false testimony. She filed with the court a draft of Flynn’s statement of offense, which shows that the words “FLYNN then and there knew” (pertaining to the FARA registration) were cut from the final version.
Moreover, Powell submitted emails that indicate the words were cut by the prosecutors themselves after the Covington lawyers raised some objections to the draft.
68. Retaliation?
Flynn’s refusal to say what prosecutors wanted angered Van Grack, contemporaneous notes show (pdf). Shortly after, prosecutors tried to label Flynn as a co-conspirator in the Rafiekian case and put Flynn’s son on the list of witnesses for the prosecution. According to Powell, this was retaliation for Flynn’s refusal to lie.
69. Rafiekian Case Collapses
Prosecutors in the Rafiekian case tried to argue that anybody who does something political at the request of a foreign official and fails to disclose it to the DOJ is an “agent of a foreign government” and can be put in prison for up to 10 years.
The presiding judge, Anthony Trenga, rejected the theory, ruling that an “agent”—as used in that context—needs to have a tighter relationship with the foreign government, a relationship that includes “the power of the principal to give directions and the duty of the agent to obey those directions.”
Trenga ultimately tossed the case for a lack of evidence.
70. No Exculpatory Evidence?
Starting in August, Powell started to bombard the prosecutors with demands for exculpatory evidence she was convinced the DOJ possessed. But the prosecutors repeatedly claimed the government already provided all it had and had no more.
The main issue was, Powell noted, that the DOJ had a very narrow view of what is exculpatory.
“If something appears on its face to be favorable to the defense … the government will claim it was said ‘with a wink and a nod,’ and therefore it showed the defendant’s guilt after all,” she complained in an Aug. 30, 2019, filing (pdf).
As it later turned out, the FBI was sitting on a number of documents favorable to the defense.
71. Contradicting Notes
When Flynn finally obtained the hand-written notes Strzok and Pientka took during the interview, it turned out they didn’t quite match the final 302.
The 302, for instance, says that Flynn remembered making four to five phone calls to Kislyak on Dec. 29, 2016. Both sets of notes indicate that Flynn didn’t remember that.
Also, the 302 says that Flynn denied that Kislyak got back to him with the Russian response a few days later. There’s no mention of a Russian response in the notes.
72. Notes Mixup
It took the prosecutors until November 2019 to find out and tell Flynn that the notes they said belonged to Strzok were actually Pientka’s and vice versa.
73. No Date, Name
The notes mixup wasn’t that easy to spot because neither set of notes was signed or dated, even though they should have been, according to Powell.
74. Harsher Sentence
Since his sentencing hearing, Flynn was expected to receive a light sentence, possibly probation. In January 2020, however, the prosecutors indicated that Flynn should be treated more harshly because he reneged on his promise to cooperate on the Rafiekian case.
This was part of the retaliation for Flynn’s refusal to lie for the prosecutors, according to Powell.
Shortly after that, Flynn asked the court to let him withdraw his plea.
75. Hint at Perjury
In February 2020, prosecutors asked for Sullivan to said on MSNBC with Covington.
Any limitation the court puts on how the attorney-client information can be used shouldn’t “preclude the government from prosecuting the defendant for perjury if any information that he provided to counsel were proof of perjury in this proceeding,” they said.
It’s not clear what specifically they were referring to.
76. Thousands More Documents
In April, Covington told Flynn they found thousands more documents related to his case that they failed to give to Powell due to “an unintentional miscommunication involving the firm’s information technology personnel.”
77. Van Grack Out
On May 7, 2020, Van Grack withdrew from Flynn’s case as well as others. The reason is not clear.
The same day, the DOJ moved to withdraw the Flynn case.
78. Judge Delays
A government motion to withdraw a case usually marks the end of the case. The court still needs to accept the motion, but there’s not much it can do, since there’s nobody left to prosecute the case.
Sullivan, however, didn’t accept it.
79. Appointing Amicus
On May 13, 2020, Sullivan appointed former federal Judge John Gleeson as an amicus curiae (friend of court) “to present arguments in opposition to the government’s Motion to Dismiss” as well as to “address” whether the court should make the defense explain why “Flynn should not be held in criminal contempt for perjury.”
This was an unusual move. Amici are normally only appointed in civil or higher court cases. Powell has said Sullivan doesn’t have authority to do so.
80. Another Washington Post Coincidence
Just two days earlier, Gleeson co-authored an op-ed in The Washington Post where he accused the DOJ of “impropriety,” “corruption,” and “improper political influence” for dropping the Flynn case.
81. More Delays
On May 19, 2020, Sullivan issued a scheduling order that set an oral argument for July 16, when third parties invited by the judge would get a chance to voice their opinions. As such, the judge set to prolong the case for about two more months and possibly beyond.
Meanwhile, Flynn sent a petition to the District of Columbia appeals court, asking it to order Sullivan to accept the case dismissal.
82. Order for Response
In a rare move, the appeals court ordered Sullivan to respond to Flynn’s petition within 10 days. Usually, the court would appoint an amicus curiae to argue the case on behalf of the judge. Sometimes, the court would invite the judge to respond. Ordering a response is “very rare,” Reeves commented.
83. Sullivan Lawyers Up
In another unusual turn of events, Sullivan hired highly-connected D.C. attorney Beth Wilkinson to respond to the appeals court on his behalf.
Wilkinson has in the past represented major corporations such as Pfizer, Microsoft, and Phillip Morris, as well as Hillary Clinton aides during the FBI’s investigation of Clinton’s use of a private email server. She also assisted then-Supreme Court nominee Brett Kavanaugh in preparing his 2018 defense against a sexual assault allegation.
Wilkinson is married to CNN analyst David Gregory, the former host of the NBC News’ “Meet the Press.”
84. DOJ Brings Big Guns
In another unusual move, the DOJ’s Solicitor General and five of his deputies responded to the appeals court in support of Flynn’s petition. The Solicitor General usually argues cases on behalf of the DOJ before the Supreme Court. His personal involvement in an appeals court petition “is highly unusual and rare,” Reeves said.
85. Short Notice
On June 2, 2020, the appeals court set a hearing in the case on June 12, giving unusually short notice, Reeves noted.
“For non-lawyers, a ten day notice for oral argument may seem like a long time, but it isn’t. It’s an increidibly [sic] short amount of time,” he said, noting that a call for a hearing “shows that the DC Circuit is gravely concerned about this matter.”