Speaking of Michael Flynn, another important twist in that saga emerged this week. Barr’s DOJ has sought to withdraw charges of lying to the FBI against Flynn (charges he has twice pled guilty to). The judge overseeing the case appears not to be impressed with the maneuver. Via The Guardian, US judge asks if Michael Flynn should be held in contempt for perjury:
Michael Flynn could be charged with perjury as the fallout from Donald Trump’s attempt to exonerate his former national security adviser continues.
The Department of Justice announced last week it was dropping its case against Flynn amid pressure from Donald Trump and his political allies. Flynn had testified under oath that he had lied to the FBI, while he also lied to the vice-president, Mike Pence, about his conversations with the Russian ambassador during the transition from the Obama to the Trump administrations, about a possible easing of sanctions for interfering in the 2016 election.
The judge in Flynn’s case, however, on Wednesday asked a former federal judge to examine whether Flynn should face a criminal contempt charge for perjury, given Flynn later changed course and said he had not lied to the federal agency.
Other press reports focus solely on potential contempt charges.
Why might Judge Sullivan be displeased with this turn of events? Well, let’s go to the transcript of Flynn’s sentencing hearing, which I am presenting here in great detail, with the first portion unedited because I think reading the whole thing really underscores the situation that Barr has now put Flynn (all emphases are mine).
Note, this was the second time Flynn pled to these charges. He did so originally in December of 2017. The following is from December of 2018.
(MICHAEL FLYNN, DEFENDANT IN THE CASE, SWORN)
THE COURT: All right. And I will inform you, sir, that any false answers will get you in more trouble. Do you understand that?
THE DEFENDANT: Yes
THE COURT: You have to keep your voice up. If you don’t understand my question, please tell me and I’ll rephrase it. Most importantly, you may consult with your attorney privately before answering my questions or at any point in time. Should you want the opportunity to attempt to withdraw your plea, I will afford you that opportunity. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you wish to challenge the circumstances on which you were interviewed by the FBI?
THE DEFENDANT: No, Your Honor.
THE COURT: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you have any concerns that you entered your guilty plea before you or your attorneys were able to review information that could have been helpful to your defense?
THE DEFENDANT: No, Your Honor.
THE COURT: At the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime?
THE DEFENDANT: I was not — I was aware.
THE COURT: You were aware?
THE DEFENDANT: Yeah.
THE COURT: Your sentencing memorandum also states that you pled guilty before certain, quote, revelations that certain FBI officials involved in the January the 24th interview were themselves being investigated for misconduct, end quote. Do you seek an opportunity to withdraw your plea in light of those revelations?
THE DEFENDANT: I do not, Your Honor.
THE COURT: All right. Now, again, at any time — I should have said this before I started asking questions, but knowing what I was going to do, to have this colloquy with you, I’ve made arrangements for a private room for you and your attorneys to talk about any of these questions and your answers. So, even though I’ve taken a number of answers from you, if you want — if you want that opportunity to speak privately with your attorneys, then I’ll certainly afford you that opportunity as well. Would you like to do that?
THE DEFENDANT: No, Your Honor.
THE COURT: All right. Are you satisfied with the services provided by your attorneys?
THE DEFENDANT: I am.
THE COURT: In certain special circumstances, I have over the years appointed an independent attorney to speak with a defendant, review the defendant’s file, and conduct necessary research to render a second opinion for a defendant. Do you want the Court to consider appointing an independent attorney for youin this case to give you a second opinion?
THE DEFENDANT: I do not, Your Honor.
THE COURT: Do you feel that you were competent and capable of entering into a guilty plea when you pled guilty on December 1st, 2017
THE DEFENDANT: I do, Your Honor.
THE COURT: Do you understand the nature of the charges against you and the consequences of pleading guilty?
THE DEFENDANT: I do understand, Your Honor.
THE COURT: And that was covered extensively by Judge Contreras. I’ve read the transcript. Are you continuing to accept responsibility for your false statements?
THE DEFENDANT: I am, Your Honor.
THE COURT: Do you still want to plead guilty, or do you want me to postpone this matter, give you a chance to speak with your attorneys further, either in the courtroom or privately at their office or elsewhere, and pick another day for a status conference? And I’m happy to do that.
THE DEFENDANT: I appreciate that, but no, Your Honor.
The transcript shifts into a lengthy interchange with Flynn’s lawyer, Kelner. The whole thing is at the link above, but I would note the following:
THE COURT: Do you wish to seek any additional information
before moving forward to sentencing?MR. KELNER: No, Your Honor.
THE COURT: Do you believe the FBI had a legal obligation to warn Mr. Flynn that lying to the FBI was a federal crime?
MR. KELNER: No, Your Honor.
THE COURT: Is it your contention that Mr. Flynn was entrapped by the FBI?
MR. KELNER: No, Your Honor.
THE COURT: Do you believe Mr. Flynn’s rights were violated by the fact that he did not have a lawyer present for the interview?
THE DEFENDANT: No, Your Honor.
THE COURT: Do you believe his rights were violated by the fact that he may have been dissuaded from having a lawyer present for the interview?
MR. KELNER: No, Your Honor.
THE COURT: The sentencing memorandum also states that Mr. Flynn pled guilty before certain, quote, revelations that certain FBI officials involved in the January 24th interview were, themselves, being investigated for misconduct,” end quote. Is it your contention that any misconduct by a member of the FBI raises any degree of doubt that Mr. Flynn intentionally lied to the FBI?
MR. KELNER: No, Your Honor.
Later in the interchange, Kelner states, “General Flynn has been, I think, clear from the beginning and will be clear again to you today tha.t he fully accepts responsibility, stands by his guilty plea, which was made based on knowing and willful conduct.”
After some more judge-attorney talk, the Sullivan again addresses Flynn:
THE COURT: All right. Thank you, Counsel. Thank you both.
Mr. Flynn, anything else you want to discuss with me about your plea of guilty? This is not a trick. I’m not trying to trick you. If you want some time to withdraw your plea or try to withdraw your plea, I’ll give you that time. If you want to proceed because you are guilty of this offense, I will finally accept your plea.
THE DEFENDANT: I would like to proceed, Your Honor.
THE COURT: All right. Because you are guilty of this offense?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. I am satisfied that Mr. Flynn entered his guilty plea while competent and capable. He understood at that time the nature of the charges against him and the consequences of pleading guilty. Having carefully read all the materials provided to the Court in this case, including those materials reviewed under seal and in-camera, I conclude that there was and remains to be a factual basis for Mr. Flynn’s plea of guilty. As such, there’s no reason to reject his guilty plea and I’ll, therefore, move on to the sentencing phase.
This is pretty direct: Fylnn admitted lying to the FBI, which is a criminal offense. Barr can play games about whether the offense was “material” to the Russia probe (IANAL, but I don’t see how it logically wouldn’t be). The only reason to pretend like Flynn’s contact with Russia was not material is if one wants to pretend like there was no reason to investigate Russian interference in the election, but while one can dispute the exact nature of the relationship between the Trump campaign and Russia only a fabulist can make the case that there were no Russian attempts to interfere in 2016.
Beyond materiality to the Russia probe, the US Government has a clear interest that the National Security Advisor not lie to law enforcement about contact with foreign governments. (Or, really, lie to the FBI at all).
And if Flynn now wants to pretend like he is innocent, what is to be made of his performance in court? Hence, the potentiality for perjury and/or contempt charges. For that matter, if his attorney’s advised him to plead guilty to a crime that the DOJ now says they can’t effectively prosecute, they should be sued for malpractice, yes?
There is also the fact that Flynn testified above that he was not set up by the FBI and that he knew at the time that lying to the FBI was a crime, He seems, now to be reversing that position. The phrase “tangled web we weave” comes to mind.
I understand why Flynn would want a get out of jail free card, but let’s not ignore that he admitted to lying to the FBI under oath. And pled guilty to that crime in open court twice, while being afforded every opportunity to back out of that plea.
