Wednesday, December 19, 2018

How The Right-Wing Claim Of FBI Entrapment Backfired Badly On Michael Flynn

How silly of me to think that I could give the Russia scandal a rest as the holidaze approached.  I tried.  How I tried.  But reality intervened in the form of Michael Flynn's sentencing non-sentencing on Tuesday, and what happened in U.S. District Judge Emmet G. Sullivan's courtroom during what was supposed to be a routine proceeding has outsized importance because it may have been the last gasp of the right-wing fever swampers who share Donald Trump's view that the scandal is a hoax and Flynn was set up by the FBI. Not that they won't keep trying. 
The fever swampers have come up with outlandish conspiracy theories, one after another, to support their fact-free claim that the scandal is nothing less than a deep-state plot to avenge Hillary Clinton's loss and undermine the Trump presidency with Special Counsel Robert Mueller and his FBI cohorts secretly calling the shots.   Something, anything to stop the prosecutorial locomotive bearing down on Trump and members of his family and presidential campaign.    
There was the claim that a FISA Court warrant against Trump campaign aide Carter Page was invented out of thin air.  Debunked.  That the Steele Dossier was a tapestry of lies and had prompted the FBI to begin its investigation.  Debunked.  And who could forget the claim that Barack Obama had ordered Trump's phones to be tapped at Trump Tower? Debunked.   
This brings us to the latest theory: That Flynn had been the victim of intimidation and a "perjury trap" when two FBI agents interviewed him in his new West Wing office on January 24, 2017, four days after Trump's inauguration, after he had been named national security adviser despite warnings that he was badly damaged goods and susceptible to blackmail by Russian (and, as it turns out, by Turkey, too.)   
Then last week in a pre-sentencing memorandum to Sullivan, Flynn's lawyers implied that the FBI acted improperly in interviewing him and he had been tricked into lying when he denied that he and Russian ambassador Sergey Kislyak had discussed Trump lifting Obama administration-imposed sanctions as a favor to his buddy Vladimir Putin.  Which they indeed had. 
Some of Flynn's more fevered allies, including the president himself, speculated that Sullivan, who has a reputation for being a hard-ass when it comes to prosecutorial misconduct, might vacate Flynn's conviction for lying to the agents, which Mueller had parlayed into a deal under which Flynn has been cooperating.  And cooperating and cooperating, some 17 interviews with prosecutors in all, which prompted the special counsel to recommend in his own pre-sentencing memorandum to Sullivan that Flynn receive no jail time.   
"I think it’s a great thing that the judge is looking into that situation," Trump told reporters, and the president tweeted "good luck" to Flynn early Tuesday as he headed to court.  On Fox News, Trump ally and former judge Jeanine Pirro predicted Sullivan would throw out Flynn’s conviction because of tainted evidence, while the Wall Street Journal harped in an editorial that the FBI's treatment of Flynn "reeks of entrapment" and called on Sullivan to "question the entire plea deal" and Eli Lake wrote a column in Bloomberg Opinion declaring that Flynn, "defamed as a Russian agent and mocked as a bumbling Benedict Arnold," was owed an apology.  
Flynn, of course, is not just another lowlife and grifter who was attracted to the deeply corrupt Trump like a moth to a flame as have so many others.  He is a war hero and retired three-star general.  He also is, along with Michael Cohen, one of the key Trump campaign insiders to be flipped. 
Pirro was correct in noting that Sullivan is "a man who does not tolerate injustice or abuse of power," but not in the way she intended.  This is because from the moment Sullivan gaveled court to order, things quickly went south for Flynn and the conspiracy freaks as the judge condemned Flynn as the abuser of power in this case. 
Sullivan instructed his bailiff to swear in Flynn, which is routine when a defendant takes the stand at a trial or when pleading for a lighter sentence at a trial's end, but is an extremely unusual step at a sentencing.  And so Sullivan, the longest-serving active federal judge on the D.C. District Court, himself set a "perjury trap," in effect daring Flynn to lie some more. 
Flynn, his jaw clenched and his lawyers sweating bullets, listened as Sullivan methodically punctured the theory that Flynn was the victim of deep-state persecution as he read aloud an inventory of Flynn's lies and expressed his "disgust" that Trump's national security adviser sought to deceive FBI agents while "on the premises of the White House." 
Sullivan reminded Flynn that lying to the FBI is against the law and people who work in the White House are supposed to be held to a higher standard.   "This is a very serious offense," he told Flynn even after Mueller's prosecutors reminded the judge that they believed that Flynn should face little to no incarceration because of his cooperation.
The judge then pointed to the American flag behind his bench and told the decorated combat veteran that he had undermined it: "Arguably, you sold your country out." 
Sullivan wasn't finished. 
He said it appeared that Flynn was trying to have it both ways -- to take a generous plea deal even as his lawyers hinted that he might have been entrapped -- although FBI records showed Flynn had repeatedly lied to agents despite knowing it was a crime to do so.   
"You understand why" I was concerned, the judge told Flynn's attorney Robert Kelner. "This sounds like a backpedaling on the acceptance of responsibility." 
Kelner replied that he and co-counsel Steven Anthony were merely trying to show in their memorandum how Flynn was different from other perps who have admitted lying to Mueller's investigators because the FBI agents did not warn him he was under investigation and that he did not have an attorney present to advise him.  
But Sullivan wasn't buying, saying Flynn should be held to a higher standard.  "He was a high-ranking government official, advising the president of the United States.  I'm not hiding my disgust, my disdain, for this criminal offense." 
Sullivan still wasn't finished. 
He repeatedly asked Flynn whether he felt misled by investigators at any point.  Flynn replied that he did not, and Sullivan warned him that he believed Mueller's recommendation that Flynn serve little to no prison time was probably too kind.   
"I can't promise you a sentence that involves no jail time," the judge said before calling
a 30-minute recess so Flynn could confer with his lawyers.  (Under federal sentencing guidelines, Sullivan could sentence him to up to five years.) 
Clearly chastened, Flynn returned to court and agreed to a delay in sentencing until a later date and said he would continue cooperating, thereby avoiding Sullivan's "perjury trap."
Sullivan took one last shot at Flynn as the hearing ended. 
Noting that there had been no restrictions on Flynn's ability to travel, Sullivan wrote an order that beginning January 4, that he will no longer be allowed to travel more than 50 miles outside Washington without permission.  And will have to surrender his passport.

Click HERE for a comprehensive timeline of the Russia scandal
and related developments.      


Shaun Mullen said...

A couple of additional thoughts that I did not include because they would have kind of interrupted the flow:

First, a goodly number of legal analysts whom I respect say they believe that Sullivan overstepped his bounds.

Wrote Quinta Jurecic and Benjamin Wittes at Lawfare: “Sullivan, responding to some legitimate provocations, went on a grossly inappropriate rant that ultimately had the effect of bullying a defendant into deferring his sentencing—even though both the defendant and the prosecution were ready to proceed to sentencing.”

Second, prior to eviscerating Flynn, Sullivan scolded Mueller’s prosecutors for the heavy redactions in their sentencing memo, saying that because of them, he could not judge how cooperative Flynn had been because he didn’t know the subject areas in which he supposedly cooperated.

This sets up the probability that prosecutors will have to be more forthcoming and the possibility that Flynn doesn’t have any more to tell prosecutors before the sentencing hearing resumes, probably in March.

Bscharlott said...

At one point the judge excoriated Flynn for being a paid agent of a foreign power while serving in the White House. He later "corrected" himself, saying that Flynn apparently stopped being an agent of Turkey before his White House stint began. I put quotes around "corrected" because the judge had access to the unredacted version of the charging document, and I suspect that his version made clear that while a certain contract Flynn made with Turkey ended in November of 2016, he was still actively trying to advance Turkey's objectives, for great remuneration, after entering office. Some reporting indicates Turkey had effectively offered Flynn a seven-figure bonus if he managed to get the cleric Fethullah Gülen out of Pennsylvania and back to Turkey; and immediately after Flynn entered the White House, someone (most likely Flynn) ordered federal authorities to reconsider whether Gülen could be extradited. Indeed, there are indications that Flynn considered whether Gülen could be kidnaped. So there's a good chance that the judge simply forgot what had beeb redacted when he tore into Flynn.

Anonymous said...

Not being fully informed on appropriate behavior of the judge, I too thought he had gone too far with his statements. As you said, bullying. It ended seeming like a "warning" of some sort to all involved. So much "reading between the lines" necessary. It's exhausting.

Dan Leo said...

Thanks for the additional comment, Shaun.