Author: Margot Cleveland
The views of the Author are not necessarily the views of Enigmose
The unsealing last week of a series of documents in the Michael Flynn criminal case cemented the reality that a small cadre of high-level FBI agents set a perjury trap for President Trump’s then-national security advisor. Beyond exposing the depth of this despicable personal and political hit job on a 30-year military veteran, the newly discovered documents hold great legal significance. Here’s your legal primer.
The Russiagate special counsel’s office charged Flynn with violating 18 U. S. C. § 1001, which makes it a federal crime to “knowingly and willfully” make a false statement of “a material fact” to a federal official. Former Special Counsel Robert Mueller’s team claimed Flynn violated Section 1001 by lying to FBI agents Joe Pientka and Peter Strzok—the latter of whom has since been fired—when the duo questioned Flynn on January 24, 2017, about Flynn’s December 2016 telephone conversations with the Russian ambassador.
Flynn pleaded guilty to the Section 1001 charge in December 2017, but after the special counsel’s office disbanded, Flynn fired his prior attorneys and hired Sidney Powell. He later moved to withdraw his guilty plea, arguing his prior Covington and Burling lawyers had provided ineffective counsel. More significantly, Flynn maintained that he is innocent of the charge and had only pleaded guilty because Mueller’s prosecutors threatened to go after his son if he refused.
New Lawyer Discovers a Rat’s Nest
Since Powell took the reins of Flynn’s legal defense nearly a year ago, she has been busy reviewing the voluminous file Flynn’s former lawyers kept. In a court filing a little more than a week ago, Powell revealed she had discovered strong evidence supporting Flynn’s claim that federal prosecutors had threatened to target his son.
“We have a lawyers’ unofficial understanding that they are unlikely to charge Junior in light of the Cooperation Agreement,” one email read, referring to Flynn’s son, also named Michael Flynn. A second email proved even more damning, as Flynn’s lawyer suggested prosecutors were attempting to keep the Michael Flynn Jr. part of the deal secret to avoid having to reveal it to other defendants against whom Flynn senior might testify. (Disclosing such impeachment testimony is constitutionally mandated by the Giglio decision.)
“The government took pains not to give a promise to [defendant Flynn] regarding Michael Jr., so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against whom MTF may one day testify,” Flynn’s attorney wrote in the email Powell attached to a supplemental filing in Flynn’s case.
This evidence confirms Flynn’s claim that he was coerced into the plea agreement. (It also provides an independent basis for a plea withdrawal, although outright dismissal is a more appropriate remedy to respond to the outrageous prosecutorial misconduct.) That coercion explains why Flynn would have pleaded guilty to lying when he did not knowingly misrepresent his conversation with the Russian ambassador to the FBI agents.
Now It All Starts to Make Sense In fact, this scenario makes more sense than the “Flynn lied” script: Flynn, who had served in the Obama administration as the director of the Defense Intelligence Agency, was well-versed in intelligence and would have known that his conversation with the Russian ambassador had been recorded. Flynn would have known that the FBI either already knew or could have easily learned the content of Flynn’s conversations. Flynn also violated no law in speaking with the Russian ambassador, so there was no reason to lie about the conversation.
Evidence that has trickled out over the last two years also indicates that the FBI agents did not believe Flynn had lied to them. Nearly two years ago, Andrew McCabe, the former deputy director of the FBI, testified in an executive session of the House Permanent Select Committee on Intelligence that “the two people who interviewed [Flynn] didn’t think he was lying.” Full Article - The Federalist
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