When you are got… given immunity, that means, you probably commited a crime (foto Giphy)
The Government’s Case Against Michael Flynn Is Falling Apart
On October 17th, a document in the case of USA versus Michael T Flynn was docketed (placed onto the court’s calendar for consideration), which could free Mr Flynn, and which might even lead to a transformation of the American criminal justice system.
The legal case against Flynn cannot be truthfully understood unless and until the political battle that motivated it is adequately described.
Flynn had been the head of the Defense Intelligence Agency (DIA) under US President Barack Obama until 2014, when Obama acrimoniously forced him out. Flynn then served for only the first 22 days of Donald Trump’s Presidency as the new US National Security Advisor. The FBI, which still remained headed by the Obama appointee, James Comey, forced Flynn to quit on 13 February 2017. Comey wanted Flynn to testify against the new President – he wanted Flynn to say that in 2016 the Trump campaign had been conniving with the Russian Government.
Here’s some background on the origin of that – this take down of Flynn wasn’t against only Trump; it was also against Flynn himself, and here is why: Flynn in August 2012 had warned Obama against arming the resistance to Syria’s President Bashar al Assad and predicted that arming them would likely result in Islamic extremists, allies of Al Qaeda, running the country, if the operation against Assad succeeded. Flynn advised Obama instead to work with Russia against that outcome. Obama ignored his advice, and fired Flynn in 2014, when Obama’s hostility toward Russia had already become public, due to Ukraine’s having turned against Russia in February 2014 and Obama’s blaming Russia for that. Although Obama was, in 2012, privately indicating to Russian Prime Minister Dmitriy Medvedev that if re elected, Obama would soften America’s opposition toward Russia, Obama was actually planning to do the exact opposite, and he was even planning to take over Ukraine and expel Russia from its largest naval base, which was in Crimea which was in Ukraine. Flynn didn’t know that Obama’s public assertions about a “reset” to reduce tensions with Russia were only lies. Flynn had believed they were sincere. On the morning of 10 November 2016, just after Trump’s election victory on November 8th, Trump met with Obama for 90 minutes privately in the Oval Office, and Obama warned Trump not to bring Flynn into his Administration. Trump ignored Obama’s warning. When Flynn was briefly serving as President Trump’s National Security Advisor, Flynn recommended to Trump a comprehensive global peace plan, which would have involved defusing the Middle East, transitioning away from fossil fuels, eliminating sanctions against Russia, and working with Russia to un do Obama’s 2014 anti Russian coup in Ukraine. So: the anti Russian Obama intensely wanted to remove Flynn from the Trump Administration. Removing Flynn was removing the biggest threat against continuing Obama’s intensification of the Cold War, which intensification was Obama’s biggest achievement for America’s Military Industrial Complex or “MIC”. Trump would then be surrounded only by Cold Warriors, assets of firms such as Lockheed Martin, the owners of America’s MIC, the Deep State, which controls the top level of the US federal Government in both of the political Parties, which persons have now become America’s permanent government. Taking down Flynn was an important step toward preserving Obama’s legacy – his solidification of the Deep State’s control. Furthermore, Comey’s main lifetime income has been the tens of millions of dollars he has received via the revolving door between his serving the federal Government and his serving firms such as Lockheed Martin. For these people, restoring, and intensifying, and keeping up, the Cold War, is a very profitable business, not merely a matter of serving their friends, who are similarly engaged.
Apparently, the FBI’s Comey didn’t, at the very start of Trump’s Presidency, feel that a winnable case could be presented against Flynn. On 23 January 2017, the Washington Post bannered “FBI reviewed Flynn’s calls with Russian ambassador but found nothing illicit”, and reported that,
The FBI in late December reviewed intercepts of communications between the Russian ambassador to the United States and retired Lt Gen. Michael T Flynn – national security adviser to then President elect Trump – but has not found any evidence of wrongdoing or illicit ties to the Russian government, US officials said.
The calls were picked up as part of routine electronic surveillance of Russian officials and agents in the United States, which is one of the FBI’s responsibilities, according to the US officials, who spoke on the condition of anonymity to discuss counterintelligence operations.
However, soon, Comey changed his mind, and he apparently reversed his opinion about whether a winnable case against Flynn existed. Perhaps this change was due to the increasing frictions between Comey and Trump, which caused Trump to fire Comey on 9 May 2017. Comey might have been disappointed at not being retained into the new Administration. Eight days later, on May 17th, the crescendo of Democratic Party and news-media criticisms against the President for doing that, resulted in the Deputy Attorney General Rod Rosenstein appointing Comey’s friend Robert Mueller as Special Counsel to investigate whether Trump had been conniving with Russia’s Government.
For some reason, Flynn, though he was the former head of the DIA, either didn’t know that “routine electronic surveillance of Russian officials and agents in the United States (…) is one of the FBI’s responsibilities,” or else he didn’t think that when he was speaking to Russian officials, there was anything illegal in it or in what he was saying in those conversations. These conversations were taking place less than a month before he was to become America’s new National Security Advisor, and everyone knew that Obama’s National Security Advisor, Susan Rice, Flynn’s immediate predecessor in that capacity, was rushing to make as difficult as possible the types of changes that Flynn – and also Trump – were advocating, in regard to policies toward Russia. The entire Obama Administration were then in overdrive to prevent any such policy changes. For example, on 29 December 2016, the Washington Post bannered “Obama administration announces measures to punish Russia for 2016 election interference”, and reported that, “Taken together, the sanctions and expulsions announced Thursday were the most far reaching US response to Russian activities since the end of the Cold War.”
The WP itself might have helped to bring about that change. Their columnist, David Ignatius, whom even the Establishmentarian Democratic Party blogger Marcy Wheeler acknowledged to be “a mouthpiece for the IC [Intelligence Community] (and especially CIA)”, headlined on 12 January 2017, “Why did Obama dawdle on Russia’s hacking?” and Ignatius posed some questions that turned out to be prophetic about the Democratic Party’s subsequent handling of these matters:
“Question 1 Did Trump’s campaign encourage Russia’s alleged hacking to hurt his rival Hillary Clinton and help him, and does Russia have any leverage over him?”
“Question 2 Why did the Obama administration wait so long to deal with Russia’s apparent hacking?”
“Question 3 What discussions has the Trump team had with Russian officials about future relations?”
In relation to N° 3, he reported that:
According to a senior US government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the US sanctions? The Logan Act (though never enforced) bars US citizens from correspondence intending to influence a foreign government about “disputes” with the United States.
Regarding Ignatius’s “Question 2,” might Obama have held off so late in his Presidency to do this, in order to maximize the public pressure upon his successor to avoid any attempt to reverse Obama’s anti Russian policies?
Wheeler’s commentary upon that column closed with a question of her own “Clearly, Ignatius’ source on the Flynn call with Kislyak advanced the story in a direction that led to Flynn’s firing. What else were Ignatius’ source or sources for the this story trying to lead reporting to?” This would have entailed Obama’s CIA Director, John Brennan.
Flynn hadn’t phoned Kislyak in order to “influence a foreign government about ‘disputes’ with the United States,” but instead to express condolences for the shoot down over Syria of a Russian plane that had been carrying a choir there to perform, and in order to express the hope for better US Russian relations – things that an incoming US National Security Advisor is entirely within his rights, and even duties, to do.
On 30 November 2017, Flynn accepted a plea bargain with Robert Mueller, the Special Counsel who was assigned by Democrats to investigate whether Donald Trump was secretly a Russian Government asset. Flynn pled guilty to lying to the FBI when he had told the FBI that:
Title 18, United States Code, Section 1001 (a) (2)
Flynn subsequently said that he had been forced by Mueller to accept that Agreement, or else Flynn, and maybe his son, would likely be sentenced to long prison terms as punishment for Flynn’s having lied to the FBI. Mueller was promising far milder punishment if Flynn would just plead guilty and agree to testify against the President.
Though vague paraphrases of what the alleged lies by Flynn were have been published (such as here), the general public hasn’t been provided access to the specific statements, the alleged lies, for which he had been charged. Ever since 27 June 2019, Flynn has been saying that he hadn’t said anything to the FBI that he knew to be false at the time he said it. The transcripts of his conversation(s) with the FBI have not been released; and, even more importantly, the transcripts of Flynn’s conversations with Russia’s Ambassador, Sergey Kislyak, haven’t been released. As Flynn’s lawyer, Sidney Powell, told the Government’s prosecuting attorney, Brandon L van Grack, on 27 June 2019, “He did not knowingly make the statements that he knew [at the time] to be wrong.” The reply by van Grack was “very heated,” saying, “Without willfully knowingly [making false statements] it doesn’t make this an offense.” And, “First time your client or counsel [Powell herself] has made any statement like what you are saying. (…) Want to be clear – you are saying that he did not make any [knowingly] false statements?”
Ms. Powell replied that this was true, and, “You are asking my client to lie” to assert otherwise, and, “If you have something [which indicates to the contrary of Flynn’s statement], show us.” It still hasn’t been shown to the public.
She had been Flynn’s lawyer for only 15 days. Flynn had fired his original lawyers, the Washington Establishment law firm of Covington & Burling, on June 12th, and it was they who had advised him to accept the guilty plea. Ms Powell, who is an anti Establishment, non megacorporate, independent lawyer, had privately been advising him not to accept the plea deal; and, now, Flynn replaced the Establishment team, and appointed her to represent him.
On 1 November 2019, Powell presented to the court an extraordinarily bold 158 page “FLYNN REPLY IN SUPPORT OF MR. FLYNN’S MOTION TO COMPEL PRODUCTION OF BRADY MATERIAL AND TO HOLD THE PROSECUTORS IN CONTEMPT”, amply documenting that:
This is no paranoid “conspiracy” delusion, as the government implies. It is well documented by the evidence already made public, which was long known to the government – yet withheld from the defense – until after Mr Flynn pleaded guilty and in clear violation of Brady versus Maryland and its progeny. This includes a still undisclosed discussion by the lead agent to use news of the “Steele dossier” as “a pretext to interview some people”; the FBI Director’s calculated decision (contrary to FBI DOJ protocol) not to notify the White House Counsel that the FBI wanted to speak with a key member of the President’s staff; a strategically planned personal call from FBI Deputy Director Andrew McCabe, designed to prevent Mr Flynn from seeking the advice of counsel or notifying the Department of Justice; planning and rehearsing tactics calculated to keep Mr. Flynn “relaxed” and “unguarded” so as not to alert him to the significance of the conversation; anxious text messages between Agent Strzok and his paramour, Lisa Page – McCabe’s Special Counsel – disclosing the deep personal involvement of these officials and others in an enterprise without a legitimate law enforcement objective.
The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system.
Flynn formally withdrew his guilty plea on 29 January 2020. In his statement to the court, he made clear that “I realize my statement and determination to assert my innocence means the prosecutors, who already seek to imprison me, may retaliate further by seeking additional charges against me and dramatically increasing the penalty I face.”
The pro war, neoconservative, Brookings Institution’s, Lawfare Blog (law in the service of international conquest – law for warfare), posted, on 1 May 2020, the most complete summary, till that time, of the case against Flynn, with links to all of the then publicly available source documents. However, what may turn out to have been the biggest developments in the case have occurred between then and now.
On 7 May 2020, Trump’s US Attorney General, William Barr, dropped the Justice Department’s criminal case against Flynn. The Democratic Party’s media were outraged. The New York Times bannered, on that day, “Editorial: Don’t Forget, Michael Flynn Pleaded Guilty, Twice”, and said: “To review: Mr. Barr is now saying he cannot prove charges to which Mr. Flynn has twice pleaded guilty in court — and for which there is ample evidence.” On 10 June 2020, the Washington Post headlined “Flynn committed perjury, and DOJ request to toss his conviction was ‘corrupt,’ ‘politically motivated,’ court appointed adviser argues”, and reported that the judge in the Flynn case, Emmett Sullivan, had appointed a prosecutor to oppose the Executive Branch – the President – and, “Michael Flynn committed perjury, and his guilty plea of lying to the FBI should not be dismissed, a court appointed adviser argued to a federal judge Wednesday, calling the Justice Department’s attempt to undo the conviction corrupt, politically motivated and ‘a gross abuse of prosecutorial power’.” Dropping a prosecution was ‘a gross abuse of prosecutorial power,’ this court appointed prosecutor alleged. Normally, abuse of prosecutorial power is done not in order to set the defendant free but to get him convicted; but, in the Flynn case, Judge Sullivan’s chosen prosecutor of Flynn was saying that what the Executive Branch was doing by dropping charges was “a gross abuse of prosecutorial power.” The Constitutionally authorized – the US Justice Department’s – prosecutor dropping the case against that defendant is “a gross abuse of prosecutorial power,” he said. Overwhelmingly, America’s press backed that viewpoint: they didn’t care about the Constitution (they didn’t care about its separation of powers clauses), in this particular case. The Constitution should be violated in Flynn’s case, they said – but they didn’t even mention the Constitution: they simply ignored it.
That court appointed prosecutor had been appointed by Judge Sullivan on May 13th. The Washington Post headlined at that time, “Court asks retired judge to oppose Justice Dept. effort to drop Michael Flynn case, examine if ex-Trump adviser committed perjury”. The judicial branch of the US federal Government was now assuming an Executive Branch function (criminal prosecution); and, so, Judge Sullivan appointed not a federal prosecutor, but instead a retired federal judge, in order to carry out his action (as being a prosecutor) against the Executive Branch, to force the Executive Branch to continue its prosecution of this man. The Democratic Party’s media were extremely supportive of this, and entirely ignored its rather blatant unConstitutionality and simply backed this unConstitutional extraordinary action by a federal judge. For example, not only the NYT and the WP, but on May 22nd, The Week magazine’s first headlined story on its front cover was “WHY BARR FREED FLYNN, p. 6”, and that news report inside headlined “Flynn: Why Barr wants to drop all charges”. It summarized five anti Trump commentaries, in The Atlantic, NBC News, the NYT, and two in the WP, plus two pro Trump commentaries, one in the National Review, and the other in the Washington Examiner. Judge Sullivan’s ruling, which reiterated what his appointed prosecutor had advised, importantly added, “It is further ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury.” He wanted Flynn’s alleged perjury, to the FBI, treated, now, as being perjury to his court, and therefore as a very serious new charge, “contempt of court” – a charge, furthermore, that Judge Sullivan would have more control over than he does over the previous charges.
However, since there was no actual prosecutor who was advising the judge, the court appointed prosecutor was, himself, only an amicus curiae, a “friend of the court,” himself, advising the judge. When Judge Sullivan ruled “that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury,” Sullivan might have become shocked when he then received on June 9th an “AMICUS CURIAE BRIEF OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS IN SUPPORT OF DEFENDANT” – quite the opposite of what the incompetent judge had likely expected to come from such an organization as the NACDL. Normally, criminal defense lawyers are arguing against, not for, prosecutorial discretion – they argue against allowing prosecutors free sway.
This brief, slamming what Sullivan’s chosen prosecutor had said, is a brilliantly argued case, which, if the incompetent judge goes against it, might produce even greater embarrassment to him than merely an appeals court’s overturning his subsequent ruling, but it would also produce a big Constitutional problem, which even the extremely right wing US Supreme Court might be reluctant to back Sullivan on. And, if this matter does reach the Supreme Court, then a ruling that would go against Judge Sullivan on it would endanger the system that handles almost all criminal trials in the US, which system is ‘justice’ by plea bargains, instead of “justice” by the Constitutionally demanded trials by jury. American criminal ‘justice’ (its reality, which is comparable to court systems in recognized dictatorships – not to its myth, which is taught in schools) could then fall apart, even more than the prosecution of Michael Flynn will. Therefore, highlights of this potentially historic amicus curiae brief will be presented here.
The brief was docketed on October 17th, and here are its highlights.
It has been settled for a hundred years that ordinary perjury is not a contempt of court because perjury does not “obstruct the administration of justice” at common law or under the contempt statute. (…) Perjury is not a contempt of court but only an ordinary crime, subject to prosecution in the exclusive discretion of the Executive Branch. (…)
If Judge Sullivan rules in accord with that brief, then Michael Flynn will be a free man, though perhaps overburdened to pay huge legal costs which the Democrats have thrust upon him. However, if Judge Sullivan rules against it, then there might follow a titanic Constitutional battle over whether ignoring the US Constitution so blatantly can continue for much longer in America.
The Democrat, Marcy Wheeler, at her Empty Wheel blog, opposes that brief, by asserting “the sworn declaration Flynn submitted as part of his attempt to withdraw his guilty plea, which DOJ’s recent excuses for blowing up his prosecution increasingly rely on, also conflicts with what Flynn said to the grand jury as well as evidence submitted in this docket, which shows notes from Covington recording Flynn telling lies about his engagement with Turkey.” However, she is there advocating a fishing expedition to find something that’s unrelated to the Mueller investigation in order to imprison Flynn on such other matters unless he will accept the guilty plea and testify against Trump. Black and brown people, and all poor people, should know that the Democratic Party has now come out openly in support of such targeted prosecutorial fishing expeditions, such as have put so high a percentage of blacks and browns, and of poor people in general, behind bars. In such a country as this, what hope is there for individuals who can’t afford to hire adequate legal counsel? Flynn has already spent more than $ 5 million on his defense, and he’s still not done.
Furthermore, the Mueller Report was a hit job. On Flynn, it is vacuous. For example, page 30 of versus 2 of the Mueller Report online merely summarizes and paraphrases what Flynn had told the FBI’s two agents who interviewed him, which interview was the basis for the charges against him.
On January 24, 2017, Flynn agreed to be interviewed by agents from the FBI. (139) During the interview, which took place at the White House, Flynn falsely stated that he did not ask Kislyak to refrain from escalating the situation in response to the sanctions on Russia imposed by the Obama Administration. (140) Flynn also falsely stated that he did not remember a follow up conversation in which Kislyak stated that Russia had chosen to moderate its response to those sanctions as a result of Flynn’s request. (141)
That’s all there is. Nowhere in the hundreds of pages of the Mueller Report is the actual evidence – in this matter, Flynn’s transcript with the FBI – presented.
How can a criminal prosecution system that consists more than 95% of coercive plea bargains, and only under 5% of trials by jury, switch to 100% trials by jury – how can it go from under 5% Constitutional, to 100% Constitutional? Or is democracy now impossible in the US? Certainly, the myth of there being in America a transparent system of justice, in which the public gets reasonably easy access to the evidence on a given case, is a total lie. What exists instead is merely a black box, filled with secrets and lies, which serve only the already powerful.
There is also great irony in this situation: the Democratic Party, which claims to support the poor against the rich, is here advocating for the plea bargaining system, which is especially unjust against the poor and protective of the rich. The sheer hypocrisy of that is astounding. Even Britain’s normally very Establishmentarian Economist magazine headlined an article, on 9 November 2017, “The troubling spread of plea bargaining from America to the world”. But such a sentiment has now become too progressive for either one of America’s two billionaire controlled Parties. They both support plea bargaining, though it’s against the US Constitution, and America leads the world in it.
The present writer is not advocating for the Republican Party, which openly flaunts its championing of the super-rich and its contempt against the poor, but the Democratic Party’s hypocrisy doesn’t make it any the better. And both Parties are enemies of the US Constitution. Both are unAmerican. Both represent opposite sides of the same US Establishment. That Establishment’s history is described here. They are enemies of what America’s Founders stood for. Neither side of this Establishment (neither the Democratic Party’s billionaires nor the Republican Party’s billionaires) represents America’s Founders – the group of individuals who actually wrote the US Constitution. That country – that Constitution (with its Amendments) – is long since gone, replaced, now, by this US counter Revolutionary (this is, anti American, pro King George III) Establishment.
That’s how deep the issues in the prosecution of Michael T Flynn actually go. These are issues that go to the core of what America is, and will be.
Originally posted at Strategic Culture.
Investigative historian Eric Zuesse is the author, most recently, of They’re Not Even Close: The Democratic versus Republican Economic Records, 1910 – 2010, and of CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.