As Michael Flynn stood for sentencing Tuesday, you could imagine the special counsel attorneys audibly exhale in relief as he declined to withdraw his guilty plea. Until that moment, it was an open question whether Judge Emmet Sullivan would excuse the government’s now apparent misconduct.
Instead, the judge blasted Flynn for “selling out” his country and wondered whether a “treason” charge might have been considered at some point. The Federalist’s Sean Davis hypothesized that the judge was frustrated by the Flynn team attempting to have his cake and eat it too. If Flynn wanted to attack the government’s abuse of constitutional rights, fine—then withdraw the plea. If not, then drop it.
The stakes were high. Last week, the Robert Mueller team filed a court document effectively threatening prison time if Flynn’s defense team continued alerting the judge to the pattern of misconduct perpetrated by the rogue’s gallery led by former deputy FBI director Andrew McCabe.
As I show below, Flynn’s continued willingness to stick to his plea solved a big problem for Mueller’s team. Among the many acts of misconduct committed to get Flynn, we’re now finding out that the Mueller team quietly returned the Peter Strzok and Lisa Page phones back to the FBI to be deleted and re-issued when they knew the text messages on those phones undercut the credibility of their lead investigator.
Flynn is a big boy with big boy attorneys. He’s the only one who can legally object to the mishandling of his case, and he chose not to do so. But as Americans, we should nevertheless be concerned.
A Brief History of the Missing Strzok/Page Texts
On August 16, 2017, ABC news reported that FBI Agent Peter Strzok left the Mueller team. But we didn’t know why at the time. We learned on December 2, 2017 from The New York Times that “the transfer followed the discovery of text messages in which Mr. Strozk and a colleague reacted …in ways that could appear critical of Mr. Trump.” The Office of the Inspector General had discovered problematic texts and quietly advised the special counsel.
We now know that the Mueller team faced a choice at that point. Strzok interviewed Flynn in January 2017 and, in late summer or early fall, the Mueller team was closing in on a criminal prosecution against Flynn. Would the special counsel take steps to preserve the damning but relevant text messages between his lead investigator and lover at the risk of undercutting the credibility of all of the casework Strzok conducted against Flynn and other figures in the Trump campaign and transition?
The first indication of how Mueller decided to answer that question came at the beginning of 2018: On January 21, Sen. Ron Johnson made public the revelation that Strzok-Lisa Page text messages spanning December 14, 2016 to May 17, 2017 were missing from the collection of recovered text messages.
We now know from the just-released DoJ inspector general report what happened to the missing text messages. Page’s iPhone was reset to factory settings in July 2017. Strzok’s phone was taken September 6, 2017. The Strzok device was later re-issued to another user, and its data was destroyed.
Thus, at the time the special counsel removed Strzok from his team, Strzok’s and perhaps Page’s phones were still intact. We know from the Times article and multiple other accounts that the DOJ IG had quietly warned the special counsel about the text messages months before the public knew. So the special counsel clearly knew Strzok had written inflammatory text messages. That was the reason Strzok was kicked off the team.
But what makes this problematic is that these missing text messages span the time Strzok interviewed Flynn (January 2017). Margot Cleveland has astutely pointed to February 2017 text messages we have between Strzok and Page that likely mentioned the Flynn interview. Contemporaneous impressions by the investigator who actually witnessed Flynn “lie” to the FBI could have been solid gold evidence.
But if the deleted texts contained Strzok’s contemporaneous musings to Page of the interview, as he so frequently mused to her on many other things, the special counsel did not take steps to preserve those texts. Instead, Mueller allowed potentially embarrassing texts on these phones to be destroyed forever, just a few short months before Flynn pleaded guilty. As I show below, McCabe appears to have overruled Strzok’s initial impression of Flynn’s misstatements as unintentional, even though Strzok, not McCabe, had the benefit of actually witnessing Flynn’s demeanor. Flynn was none-the-wiser until it was too late.
Flynn Pled Guilty Before Several Damning Revelations
Flynn entered his guilty plea on November 30, 2017. Judge Rudolph Contreras, who accepted Flynn’s plea, mysteriously recused himself approximately one week later. Then, in March of 2018, newly public Strzok texts revealed one possible explanation for the mysterious recusal: the new texts showed Strzok was so friendly with Contreras that Strzok wondered whether there might be a conflict of interest for the judge to rule upon warrant applications involving Strzok. Since Strzok was the key witness in the Flynn lying case, some have speculated that Contreras was ordered off the case.
We’ve also known for some time that McCabe had a vendetta against Flynn because Flynn helped a woman accusing McCabe of retaliating for a discrimination complaint. What Flynn may not have known at the time he entered the plea is the government’s case relied on McCabe’s reliability.
He may also not have known that in February 2018, the DoJ inspector general would release a report accusing McCabe of multiple instances of lying to the FBI. These include an instance of McCabe allegedly lying to the FBI while under oath.
Stop and catch our breath for a second to let this sink in: McCabe walks the streets a free man in spite of a DOJ inspector general report documenting his intentional misstatements to the FBI (including misstatements under oath). And that’s the guy the government relied upon to convict Flynn of lying to the FBI. Flynn’s plea of guilty saved the Mueller team from having to account for this double standard.
The Mitigating Evidence Gets Even Thicker
In February this year, also after Flynn’s plea, Byron York reported that Comey told Congress FBI agents didn’t think Flynn lied. Again, that seems highly relevant to a claim that Flynn lied to the FBI and something that he should have known before he signed the plea agreement.
In April 2018, Comey contradicted this account on “Special Report with Bret Baier.” But Comey was lying or misremembered. Last week, the government was forced to admit it was true. Strzok returned from the Flynn interview to brief McCabe directly.
It’s likely McCabe’s personal animus towards Flynn played a role in the decision to accuse Flynn of intentionally lying to the FBI. Strzok thought Flynn “did not give any sign of deception. He did not parse his words or hesitate in any of his answers. He only hedged once, which they documented in the 302.” The term “302” refers to a completed FBI form containing notes from an interview.
The 302 attached to the government’s filing last week includes a 302 created in July 2017, six months after the interview. Why would team Mueller wait until six months after the Flynn interview to write the summary of what Flynn said to Strzok? Don’t forget, July 2017 is on or around when Strzok was kicked off the Mueller team.
So at the same time that Mueller discovers Strzok’s problematic text messages, he does two other things: (1) collects a July 2017 summary for an interview that took place six months earlier, and (2) failed to preserve the phone Strzok used to text Page during the same period. This in spite of knowing how bad these texts make key Flynn witness Strzok look.
Did the fact that Strzok was found to be sending Page text messages promising to “stop” Donald Trump play any role in the decision to write a new 302 six months after the Flynn interview? It sure doesn’t look like a coincidence.
The New Judge Caused Trouble for the Mueller Team
On February 16, 2018, Judge Emmet Sullivan, who replaced Contreras, ordered the Mueller team to turn over all evidence that “is material either to guilt or punishment.” This order raised eyebrows. Flynn had already pleaded guilty at the time of the order, so, in theory, the parties had moved past the question of Flynn’s innocence or guilt.
But, as many have noted, Sullivan was the judge in the notorious public corruption case in which the government appeared to have framed Ted Stevens for taking a bribe. Thus, it should cause concern for the Mueller team that Sullivan seemed to openly call into question Contreras’s decision to accept the Flynn plea without first ordering the government to disclose all relevant evidence.
Has the government complied with Sullivan’s February 16, 2018 order directing the government to turn over all evidence relevant to Flynn’s guilt or innocence? Flynn made the mistake of embarrassing the government by pointing out that the FBI encouraged Flynn to participate in the fateful interview without a lawyer and did not warn him that a misstatement could lead to criminal conviction.
Logically, there has to be something that will inform the interviewee that a misstatement could lead to jail time. 18 U.S.C. § 1001 requires that the person make the statement “knowingly and willfully” make a “materially” false statement. It’s not at all clear that Flynn knew or should have known the FBI was there to investigate a crime. The closest we have is McCabe’s written recollection of a conversation with Flynn that he wanted two agents to discuss a “sensitive” matter with Flynn. McCabe wrote,
I told LTG Flynn that I had a sensitive matter to discuss. I explained that in light of the significant media coverage and public discussion about his recent contacts with Russian representatives, that Director Comey and I felt that we needed to have two of our agents sit down with the General and hear from him the details of those conversations.
Or so the man who repeatedly lied to the FBI himself says he remembers telling Flynn. After one reads the 302 of the January interview that followed this McCabe phone call, one can be skeptical that McCabe did indeed clearly warn Flynn that the agents were there as part of an investigation. Without that admonition, Flynn may have felt free to guess about details he did not remember. That’s what makes it a trap.
Judge Sullivan issued a December 12, 2018 order directing the government to “file on the docket any 302s or memoranda relevant to the circumstances discussed on pages 7-9 of the defendant’s sentencing memorandum.” This gave both the public and the judge a look into the sausage-making of the Flynn conviction. The January 2017 version (filed December 17, 2018) is consistent with the scenario in which Flynn did not understand he was being interrogated.
The government’s December 14, 2018 memorandum responding to the judge concludes with a veiled threat to Flynn: “The seriousness of the defendant’s offense cannot be called into question, and the Court should reject his attempt to minimize it. While the circumstances of the interview do not present mitigating considerations, assuming the defendant continues to accept responsibility for his actions, his cooperation and military service continue to justify a sentence at the low end of the guidance range.”
Did you get that? If Flynn gave the government any more trouble over prosecutorial misconduct, they’re going to push to have him imprisoned for a long time. The contrast between the outcome of McCabe lying to the FBI and Flynn lying to the FBI demonstrates that under the Rod Rosenstein DoJ, the DoJ is ruled by only one law: does it help get Trump? Since Flynn was on team Trump and McCabe part of the effort to get Trump, their alleged crimes receive different treatment.
Why Isn’t Flynn’s Team Going Bonkers?
What are we to make of Mueller’s failure to preserve the Strzok and Page text messages? At least one case suggests that we should assume the worst: that the documents were allowed to be destroyed to save the special counsel from embarrassing evidence that could help future defendants.
It’s a mystery why Flynn and his attorney have not gone bonkers over the many revelations of the bad acts of the government. Or is it? In November 2017, CNN reported, “Former White House national security advisor Michael Flynn has expressed concern about the potential legal exposure of his son, Michael Flynn Jr. who, like his father, is under scrutiny by special counsel Robert Mueller.”
So as much as those sympathetic to Flynn might hope he’ll file a motion to set aside his plea, a father’s loyalty to his son might be the reason he continues to bear the apparent injustice without objection. Serious legal professionals (here and here, for example) have questioned whether Flynn might have lacked the criminal intent to be guilty of anything and whether the entire conviction is just a sad case of the power of prosecutors to crush their individual citizens.
Flynn’s effort to attack the conduct of the government in the sentencing phase obviously backfired with this judge. There’s a process for making those challenges and the judge rightly insisted Flynn follow that process instead of attempting to bait the judge into doing it on his own.
Had the Flynn conviction fallen apart, it would have been devastating to the Mueller probe but a long-overdue rebuke to the politically motivated investigation. The lack of any significant jail time in both the Flynn (anticipated) and the George Papadopoulos cases are signs that the cases were at risk for the very dubious techniques used to trap these targets into process crimes.
While it does not appear that Flynn had anything to do with any alleged Russian meddling in the U.S. 2016 election, there is a reasonable conversation to be had about the appropriateness of an intelligence official going to work for a foreign government (i.e., Turkey) immediately after leaving a sensitive post with the U.S. government. Turkey attempted to use Flynn to coax a change in U.S. policy as part of an extensive lobbying campaign.
By my guess, there are thousands of former U.S. officials around Washington D.C. selling influence for foreign money. For example, the registered agents representing Saudi Arabia spent $1.6 million in the midterm elections (and so many like Flynn and Manafort don’t register). Maybe Flynn deserved to go to prison for a long time for “selling out” his country to Turkey. But he won’t. Because the only crimes that matter are the ones that can be used to get Trump.