Yesterday, Friday, May 8, the US Federal Department of Justice (DOJ) finally saw reality and withdrew their prosecution against President Trump’s former National Security Advisor, General Flynn.
“The Government has determined, pursuant to the Principles of Federal Prosecution and based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.”
Ya think?
They really had no choice. The case had been steadily collapsing over the last few months, its destruction accelerating with every new release of documents revealing that the FBI, the Justice Department and the Mueller Investigation (Special Counsel Office or SCO) had lied about the prosecution of Flynn almost from the beginning and withheld evidence from the court that demonstrated he was innocent.
The technical reasons for the collapse of the case were actually straightforward but the process by which they came about was not. There are many problems with the Flynn case but the two standouts are as follows:
- The interview conducted by the FBI with Flynn on January 24 2017 was a setup to enable a prosecution for lying or simply to get him fired. A months long investigation by the FBI had already determined that he’d done nothing wrong.
- His guilty plea in December for “lying” in that interview was coerced with the threat of bankruptcy and that his son would be prosecuted. But this coercion was hidden from the courts and Flynn’s lawyers in the official charge bargain deal.
The Setup
Among the avalanche of documents that have tumbled out in recent weeks and days have been a number of revelations:
First, it turned out that General Flynn had already been cleared by the FBI in their investigation Crossfire Razor, which was merely part of the now infamous Crossfire Hurricane investigation of links between Trump and Russia.
- On January 4, 2017 an unnamed FBI agent completed a draft “Closing EC” document to shut down the investigation. A Closing EC is the last document in a closed investigation, and no further investigative activity is allowed unless there is another EC “Reopening” a closed investigation, and the new EC justifies the further efforts.
- The Closing EC document reflected that several months of investigative effort had revealed “no derogatory information” about Gen. Flynn in connection with the allegations that caused him to be included as part of the Crossfire Hurricane.
- The FBI certainly had transcripts of the calls Flynn had made with the Russian Ambassador on Dec. 22 and 29, 2016, and they knew exactly what Flynn had said to the Ambassador.
- So, on January 4, 2017, the FBI agents and supervisors on Crossfire Hurricane and Crossfire Razor had determined there was no evidence, including in the transcripts of the calls*, to support the proposition that Gen. Flynn was “wittingly or unwittingly” involved in activity on behalf of the Russian Federation that was a crime or a threat to national security.
* Incidentally those calls were leaked to David Ignatius in a highly illegal fashion for a January 12 Washington Post column. Who committed that Federal crime? It’s already been known for two years that FBI Director leaked his notes from his meeting with Trump to the media as part of the pretext to get a Special Investigator cranked up. Was this Comey again?
Second, despite this, the now infamous FBI agent Peter Strzok, Chief of the Counterespionage Section, who had led the investigation into Hillary Clinton’s use of a private email server for Secretary of State communications, and who would later be disgraced and fired for lying to the FBI**, intervened to hold open or revive the investigation.
** Sample conversation with his FBI married lover Page, In early August 2016, after Page asked Strzok, “[Trump’s] not ever going to become president, right? Right?!”, Strzok responded: “No. No he won’t. We’ll stop it.” Page was FBI deputy director Andrew McCabe’s counsel.
He could not have done this on his own initiative but would have had to have been ordered to do so by FBI leadership, either Director James Comey or deputy director McCabe (also later fired for lying to the FBI).
- The case file was only kept open under the false pretence of conducting a Logan Act (1799) investigation. At that point it became a fake investigation. Nobody has even been prosecuted under the Act for over 200 years. Nobody has ever been convicted.
- This made any answers or comments made by Flynn in the interview immaterial to the overall investigation. A key point of failure had prosecution ever happened.
- Their end goal was a referral to the DOJ – not to investigate Flynn’s contacts with the Russians.
- Flynn’s interview by Peter Strzok and Joe Pientka followed on January 27 at the direction of James Comey. They had a plan, which was revealed in the written notes made before the meeting:
“What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
“get him to admit to breaking the Logan Act, give facts to DOJ + have them decide.”
- Neither the Whitehouse nor the DOJ was informed of the meeting and to Flynn it was cast as an informal meeting not requiring a lawyer or advice of his rights as would normally be the case.
- The other agents involved in the interview did not think Flynn had lied to them and their written notes reflected that.
- Nevertheless the official record of the interview, the so-called 302 file, did not reflect any of this and was modified multiple times.
And here’s the real kicker: none of this information was ever disclosed to Flynn or even his lawyers later on. That was part of the clever plan.
The Guilty Plea
It took months for that January interview to turn into coercion, but when it came in December 2017 it was a doozy.
- When Gen. Flynn and his attorneys began discussing a possible plea deal with the SCO, no Indictment had been filed, and no discovery rights/obligations existed. Flynn and his lawyers did not have to be shown all the evidence – including the evidence that was exculpatory for him.
- What was negotiated was not a plea bargain, which happens only after an indictment is filed, but a “charge bargain“, which can come before. But the key difference is that in a plea bargain the defendant and the lawyers understand exactly the nature of the evidence presented to which a guilty plea is demanded.
- A charge bargain is related to an “Information”, which is a charging document created and signed by a Department of Justice prosecutor – in this case, a member of Robert Mueller’s Special Counsel’s Office (SCO). Charging by way of Information is an alternative to seeking an “Indictment” from a federal grand jury, and can only be done with the consent of the defendant charged in that fashion.
- A defendant pleading guilty to a “false statement” charge would have the Agent’s report of his interview, and he would know exactly what the Agents wrote in their report about what they claim a defendant said in the interview. But a defendant pleading guilty to an Information must make that decision without the right to see the FBI Agent’s report unless it is given to him by the prosecution.
- Flynn was also informed that his son might also be prosecuted, since he’d worked for Flynn’s private security firm and might have legal exposures. Flynn was also running out of money at this point, while facing the inexhaustible reserves of the US Government.
- In this situation, the facts say what the prosecutor wants them to say, and the defendant has a “take it or leave it” decision to make. This often comes down to a “risk/benefit” calculation about what is more important: the strict accuracy of the prosecutor’s language; or the outcome of the case that might ride on the willingness to accept less-than-perfect language. For Gen. Flynn the outcome of the case was as good as he could have expected — a “no time” recommendation to a sentence of probation, and no exposure for people close to him.
- In other words, Flynn did not plead guilty to any set of evidence or facts. He pled guilty to a story of what the agents had claimed about his January interview, as described by Mueller’s team and without access to any original material they had with which to contradict them.
It was almost the perfect con. Since there was no indictment, only a charge bargain and therefore no discovery process available to Flynn’s lawyers, the FBI/SCO could hide the threats made against Flynn and exclude them from the bargain deal. This was important to Mueller’s team, supposedly because Flynn might be a future witness against others and the last thing they wanted was for any judge or jury to find out that the witness might have been coerced into lying to protect himself, for that would mean they could have been coerced to lie further. Any judge or jury that discovered such a hidden threat would promptly blow up any trial where Flynn was a witness, even if the defence lawyers did not. As former DOJ prosecutor Andrew C McCarthy commented:
Under federal law, all understandings that are relevant to a guilty plea must be disclosed to the judge. It would be not merely a serious ethical breach for government lawyers to fail to reveal such an arrangement. It would be a fraud on the court.
It should be noted here that the FARA prosecution of Gen. Flynn’s former business partner buckled and collapsed under scrutiny in a trial. Likewise the “Russian Troll Farm” case buckled and collapsed when the SCO’s “dream team” of prosecutors had to actually defend the Indictment they conned a grand jury into returning. Had Flynn pled not guilty and the FBI agents been forced to testify, the same thing would have happened here.
A Synopsis of Conviction
I think the best synopsis comes from the Spectator:
The disgusting people running the FBI — big boy James Comey, and Peter Strzok, and former head of counterintelligence Bill Priestap, among others — pursued a vendetta against Flynn, manufacturing a bogus case against him in order, first, to destroy someone that Barack Obama and his intelligence operatives detested and, second, to pursue ‘Crossfire Hurricane’, the ‘umbrella’ investigation whose goal was to destroy Donald Trump.
They were pretty successful at the first job. They smeared Flynn, then they set him up, sending Strzok and another agent to have a friendly chat with him at the White House which they weaponized into a bogus ‘you lied to the FBI’ charge. They got him fired from his position as NSA, bankrupted him through ‘the-process-is-the-punishment’ legal feels, and forced him to plead guilty to a felony by threatening his son with another bogus charge.
If you want a more detailed explanation of exactly why the FBI and Mueller (SCO) went after Flynn and what they did, then I think this article by Andrew McCarthy in the National Review (not exactly a hotbed of pro-Trumpism) is one of the best, The FBI Set Flynn Up to Preserve the Trump–Russia Probe, on top of previous superb pieces of analysis of the case going back two years.
McCarthy is a former DOJ (Southern NY Law District) prosecutor who worked with the FBI for years and is probably best known for the conviction of The Blind Sheik for the 1993 WTC bombing (brilliantly described in his 2008 book Willful Blindness). He knows his stuff.
He points out that Flynn – a lifelong Democrat – had made enemies during his time with the Obama Administration because of his digging into CIA failures in Afghanistan and also because of his opposition to the Iranian nuclear deal. So there were scores to be settled. But it was much more than that:
Perjury trap was not score-settling. To investigate the president, it was a practical necessity to sideline his chosen national-security adviser.
…
[Trump] was not supported by the Republican foreign-policy and national-security clerisy, which he had gone out of his way to antagonize in the campaign. The staff he brought into the government consisted mainly of loyalists. There were some skilled advisers, too, but their experience was not in the national-security realm.The exception was Flynn. The former head of the Defense Intelligence Agency knew how the spy agencies worked. He knew where and how they kept secrets. He had enough scars from tangles with the intelligence bureaucracy that he knew how the game was played — how intelligence officials exploited information, or selectively withheld it.
Trump was, and remains, a naif when it comes to the cutthroat world of D.C. bureaucratic politics. He should have fired Comey on day one of his Presidency (ironically Democrats would have cheered). He should never have allowed Sally Yates – an Obama hangover and Acting Attorney General – to stick around. Flynn was one of the few Obama people who knew how things worked and was loyal to the Constitution rather than to his Democrat Party. He had to be got rid of.
The Process of Defence
Flynn’s lawyers from 2017 to 2019 were the renowned D.C law firm Covington & Burling – and they were hopeless. Although limited by the FBI’s hiding material evidence from them, they did not even ask for things like the FBI’s 302 documents, which would have started things unraveling sooner. In addition they appear to have been all too cosy and accomodating with Mueller’s team, especially with team member and DOJ prosecutor Brandon Van Grack, in crafting up Flynn’s guilty plea.
Somehow, someway, Flynn finally figured this out and in mid 2019 appointed a new defence lawyer, Sidney Powell.
As a further example of the previous defence team’s uselessness, when handing over their Flynn defence material they missed some 17,500 pages simply because they did the wrong word search.
It took Powell almost six months of digging but by December 2019 she must have figured the Mueller SCO team and FBI were hiding something and went on the attack, starting with threats to not cooperate any further. The DOJ’s response was to now demand prosecution, which would require nothing but the guilty plea.
Her next step was to file an extraordinary motion in January with the trial judge, Judge Sullivan, seeking the withdrawal of Flynn’s guilty plea. This immediately caused the DOJ to walk back their demands from jail time to probation.
Powell smelled blood and in February asked the court to dismiss the case for “egregious government misconduct“. That was dismissed but a lot of people wondered what she had found and it got enough attention that Trump’s Attorney General William Barr appointed Jeff Jensen, the United States Attorney for the Eastern District of Missouri and a former FBI agent to start investigating the investigation.
It took Jensen three months but in late April the dam began to burst with key discovery documents being sent to Powell. In a classic government tell that it spelled bad news, the documents were released late on a Friday, April 24. Expectation grew that Barr might just seize the nettle and demand the case be dismissed himself, but he knows how to play politics and decided on the old strategy of letting the SCO prosecutor Van Grack and his accomplices to “twist slowly, slowly in the wind“. The documents were unsealed a few days later, revealing evidence showing the con, including the pot of gold – Assistant Director of FBI Counterintelligence, Bill Priestap’s handwritten notes of the 2017 meeting with Director Comey and Deputy Director McCabe where it was finally gamed out.
On May 4, Judge Sullivan told Powell to stop filing exculpatory evidence until she had it all, a clear sign that the Judge had seen enough.
On May 7 DOJ prosecutor Von Grack withdrew from the case. According to reports he has been pulled from all cases. His career is now as dead as that of Comey, McCabe, Strzok and others. The DOJ soon after filed a request to drop the prosecution.
Meantime the note taker Priestap, having “retired”, is “fully cooperating” with Special Investigator Durham’s criminal investigation of the whole Russia-Collusion hoax.
Amazing.
So General Flynn hasn’t got justice yet. That will come when he gets money out of the US government – preferably millions – and punishments beyond firing and disgrace are meted out to those who pissed all over their offices by bringing the massive police power of the state to bear against an individual that they knew to be be innocent.
I don’t have high hopes of perp walks for the likes of Comey; it’s just not what happens in the Beltway – but I want those people to burn in some way.
It’s not over yet, not by a long shot. But still…
No Minister 