Sunday, December 23, 2018

UPDATED: Judge Sullivan's Challenge

Despite the fact that Judge Sullivan totally shot himself in the foot with his absurd speculation regarding the possibility of General Flynn being charged with treason, it does appear that Sullivan remains focused not only on the misconduct (read: possible criminal conduct) by Team Mueller and the FBI, but also on the legal insufficiency of the charge against General Flynn--False Statements to the US Government, 18 USC 1001.

In that regard, legal tweeter Techno Fog flagged this fascinating exchange--note that the "Kelner" who responds to Judge Sullivan is one of Flynn's attorneys, Michael Kelner:

Near adjournment, Judge Sullivan mentions that he will likely have "many, many, many more questions" - including: 1) how the gov't investigation was impeded 2) What was the material impact of the crimes /end

The important point Sullivan has in mind comes toward the end, when he says:

"These are questions that you would prepared to answer anyway, such as, you know, how the government's investigation was impeded? What was the material impact of the criminality? Things like that."

Obviously Flynn's lawyer, Kelner, likes what he's hearing, is very much in favor of "things like that," and he says so:

"I think we would find it very helpful, actually, and would welcome the opportunity."

The reason Kelner likes this train of thought is because what Sullivan is talking about actually comes very close to the legal insufficiency of the entire case. This doesn't mean that Flynn will be changing his plea, because his statements at this hearing made a future plea change very difficult. Nevertheless, Kelner likes this development because it works to get Sullivan back to the agreement of zero jail time, after Sullivan had suggested that he might ignore that agreement.

But lots of things can change during the three months before the next status hearing, so let's take a quick look at the actual text of "1001", as far as it's relevant to the Flynn case and to Sullivan's remarks:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(2) makes any materially false, fictitious, or fraudulent statement or representation;

The issue that Sullivan was posing to the attorneys is this: if what Flynn said to the FBI had no "material impact" on the government's investigation--did not "impede[d]" the investigation in any way--then how should that affect "an eventual sentencing"?

Obviously this has to do with the fact that the FBI agents showed up at Flynn's office to question him only about things they already knew. That was the strategy agreed upon with their boss, McCabe, and which they adhered to. They questioned Flynn about matters that they already knew--in fact, had a recording of--and if Flynn's account didn't jibe with what was on the recording then they simply repeated Flynn's words.  This was, according to Mueller (p. 3), in order to "prompt a truthful response." Actually, Mueller himself was making a false statement to the court when he wrote those words, because the agents weren't actually attempting to "prompt a truthful response" at all--they were trying to lock Flynn in to an inaccurate statement that could later be deemed a false statement and charged under 1001. They were adhering to McCabe's instructions to not challenge McCabe's responses, but to induce him to say "yeah, uh huh," when they repeated an inaccuracy.

Now, we can agree for the sake of the argument that it's only fair that the lack of any "material impact" of Flynn's words on any investigation should be taken into consideration for "an eventual sentencing." However, more to the point of my previously strongly expressed view of all this, I would maintain that what we have seen here is not an investigation at all. Yes, I know that DoJ officials presented three separate investigative theories to the House, that Mueller claimed that the FBI agents were engaged in "a national security investigation", and that the lawyers for Team Mueller--when challenged by Sullivan on exactly this point--suggested that the FBI had been looking at what might "potentially, potentially" have been a violation of the Logan Act. But we're all adults and any adult with a legal background knows that, as Michael Walther puts it, invoking the Logan Act is "the prosecutorial equivalent of announcing a snipe hunt."

My point is simply this: an investigation is an attempt to ascertain the truth. Here the FBI had a recording of a conversation. They knew the truth when they walked into Flynn's office, and they sought no further truth beyond what they already knew. For Mueller to suggest that they were attempting to ascertain the truth of what had been said in that conversation by questioning one of the participants is utterly disingenuous--something we have sadly come to expect from the agencies and agents of our "Justice" Department lately. An individual's recollection will never be more accurate than a recording. Therefore, the only point in questioning Flynn was to try to frame him up for a supposed false statement and charge him under 1001, and I'm going to say that a fair reading of the 302 leads to the same conclusion the interviewing agents initially expressed: Flynn wasn't lying. He was coerced into a guilty plea by unscrupulous prosecutors.

Now, look at the text of 1001 again. One of the first things it says, and crucially, is: "in any matter within the jurisdiction of the executive." Fine. The FBI is part of the executive branch of the US government, but the jurisdiction of this particular agency, the Federal Bureau of Investigation, does not extend to "any matter"--it extends only to matters for which Congress has given the FBI jurisdiction. Typically, that means the investigation of some crime or matter concerning national security. The inability of DoJ and Team Mueller to come up with a single consistent rationale strongly suggests that this was not an investigation of either a crime or a national security matter over which the FBI has jurisdiction. Yes, the FBI has jurisdiction in national security matters, but only when a threat to that security is involved--as the Attorney General Guidelines clearly state in its introduction. Nobody knew better than the FBI that Flynn's conversations with Ambassador Kislyak posed no threat to national security, and that means that the FBI was acting outside its mandate when it interviewed Flynn. It was setting up a False Statement trap, not conducting an investigation, and that's what Judge Sullivan should be looking at. Hopefully he'll come to that conclusion sometime during the next three months.

Judge Sullivan posed a challenge to the attorneys at the hearing. I suggest that Judge Sullivan faces his own challenge that he may have to face on his own, if justice is to be done and the rights of US citizens are to be protected against an abusive FBI that sees its mission as being a sort of roving Federal truth patrol.

UPDATE: Scott Johnson at Powerline notes that others are aware of the issues raised in this blog:

Why did Comey and the FBI go to such extreme lengths to catch Flynn in a lie, when he had violated no federal law?
Under questioning before the House Judiciary Committee, Comey claimed that the FBI has the duty to “understand why it appeared to be the case that the National Security adviser was making false statements about his conversations with the Russians to the Vice President of the United States.”
But as Gowdy and others made clear, it is not the FBI’s job to make sure politicians tell the truth to each other. If it was, the FBI would be so busy it would never get to its real mission of investigating federal crimes.
Though he resisted this inference during the hearings, Comey’s answer suggests that his order to investigate Flynn was part of a broader counterintelligence investigation into the Trump presidential campaign….

In fact, Mueller, in his sentencing memo reply, did state that Flynn "knowingly made false statements to FBI agents in a national security investigation." But all that really means, in effect, is that it's turtles all the way down. IOW, if the FBI had no proximate reason for interviewing Flynn--and, as I've stated repeatedly, the confusion evinced by DoJ officials strongly suggests that they were at a loss to explain their rationale--then our inquiry shifts further back for the justification. If, as Mueller claims, the interview was part of some "national security investigation," the judge should be asking what the grounds for that investigation were. And if, as seems reasonable, Mueller's "national security investigation" is simply the continuation of Comey's "broader counterintelligence investigation into the Trump presidential campaign," I think we know by now where that ultimately leads us: back to the "dossier." This is one more reason why Flynn's guilty plea does the nation a disservice. We need to get to the bottom of this. Acting AG Whitaker would do well to get this ball rolling.


  1. Two issues- no material effect, and the underlying conversation wasn't a crime of any kind.

    Really, on the basis Mueller used to get the plea, if the agents had video-taped Flynn having a donut for breakfast, but Flynn told the agents he had a bowl of oatmeal, he could have been charged with lying with just as much justification as exists in regards to the phone call.

    If Flynn hadn't been vulnerable on the FARA issues, would there ever have been the plea? That, in my opinion, is the question Sullivan should be asking, but apparently isn't.

  2. Yancey, that's the part I don't get either--the supposed anxiety to avoid FARA. I see that the FARA web site has removed the disclaimer it used to have--that its goal was compliance, not prosecution. But even without that, the case with the Podesta's and other recent cases that involved actual prosecution all point to the same thing--absent another substantive violation (money laundering, etc.) FARA isn't prosecuted as a standalone violation.

    Flynn did register under the LDA, which would seem to indicate lack of intent. I don't fully understand what's behind this plea.

    There are, as you say, a lot of issues here and one problem may be that few judges have much understanding of national security law--as we saw with Sullivan's loose references to "treason."

  3. Over Christmas, I went through a pile of old magazines, from about 2014-2015.

    Back in those long-ago days, critics of Vladimir Putin were making a big deal about Russia requiring Western organizations in Russia to register as foreign agents. Russia's enforcement of this requirement proved that Putin was making Russia more authoritarian and paranoid. Enforcement of this requirement was blatant harassment of Western organizations that were innocently promoting international cooperation and democracy in Russia.

    Now, in 2018, the USA's DOJ/FBI are expending a lot of manpower, time and effort to prosecute people criminally for failing to register as foreign agents. In particular, our DOJ/FBI are looking under every bed to find and prosecute Russian agents.

  4. I indicated in a previous comment that the investigation of Michael Flynn seems to involve his relationships with Russia's "RT America" television channel and with his occasional Russian translator Svetlana Lokhova.

    When Sally Yates was making a big deal about Flynn's telephone conversations with Russian Ambassador Kislyak, Yates was saying that Flynn's violations of the Logan Act made him to Russian blackmail.

    The problem was not merely that Flynn had violated the Logan Act. Rather, the ultimate problem was that Flynn was subject to Russian blackmail.

    This expressed concern about Flynn being vulnerable to blackmail does not make sense in regard merely to Flynn's telephone conversations with Kislyak during the Presidential transition period.

    However, Flynn's relationships with RT America and Lokhova began in 2015 or earlier. Furthermore, the US Intelligence Community's investigations of those relationships seem to have begun in 2015 or earlier.

    I remind you again that when the US Intelligence Community published its Background to “Assessing Russian Activities and Intentions in Recent US Elections”: The Analytic Process and Cyber Incident Attribution on January 6, 2017, seven of the report's thirteen text pages were about RT America.

    Flynn received $45,000 from RT America for attending and speaking at a Moscow dinner celebrating RT America on December 10, 2015. I think that this event is significant in the US Intelligence Community's investigation of Flynn.

    James Comey said that the FBI's investigation of Russian meddling in the election involved four US citizens, one of whom was Carter Page. It's certain that the other three are Paul Manafort, George Papadopoulos and Michael Flynn.

    I think that the suspicions about Flynn were that 1) RT America became a conduit between the Kremlin and the Trump campaign and 2) Flynn was vulnerable to blackmail because of his affair with Lokhova.

  5. Mike, re FARA, one of the worst aspects in how it's currently being used is its blatantly political application in the US. It smells of equal protection violations, but Flynn didn't challenge it.

  6. Mike, IMO, Yates' claimed concerns re blackmail are pretty thin. Yates' claim, as I understand it, is that Flynn lied to VP Pence re his contacts with Kislyak and that THEREFORE Flynn could be blackmailed by the Russians. I don't find that persuasive, given that Flynn knew that the conversations had been recorded. He behaved foolishly, that's a given, but I don't see blackmail being a legit concern.

    The problem with RT America is that it's legally, under Russian law, an independent non-profit. Our IC claims that's a subterfuge to evade FARA. Flynn would likely never be charged under FARA for taking money from RT America, since prosecutors would need to actually prove that RT America was a branch of the Russian government--the opinion of the IC would not be legally sufficient. My understanding, subject to correction, is that DoD and DoS regs also require someone with a clearance (which Flynn retained) to obtain prior permission before accepting money from a "foreign government." That poses the same difficulties as re RT America--did Flynn think RT was autonomous? All of that is being investigated and Flynn claims he did brief DIA before and after the RT dinner. Of course, this is where plea bargaining comes in, and it also illustrates the convenience of 18 USC 1001 as a tool to coerce a guilty plea when other truly substantive violations probably could never be proven.

    You may well be right that the allegations re 1) RT as a conduit between the Kremlin and Trump and 2) Flynn's supposed affair with Lokhova figured as justification for opening a full CI investigation on Flynn. I assume Nunes has seen that stuff. The opening ECs, IMO, are the key to this whole Russia Hoax, but are probably the least likely to be declassed. As you know I'm not a Flynn fan, but I regard these allegations as "narrative".

  7. Doesn't matter how it's sliced and diced. The entire thing is utterly and inarguably political. $45,000 isn't even pocket change compared to the millions funneled to a shell institution of a cabinet member/candidate with a long history of pay/play (has everyone forgotten the overt campaign cash from the ChiComs circa 2008). Yates, Comey, et al had not even a passing interest in that. The Logan Act doesn't even qualify as a joke. This is purely political and a huge swath of America is watching. It will all end up on the Senate floor.
    Apparently the Democrat/NeDeRs (Never Deplorable Republicans) didn't understand what the scene in Saving Private Ryan was all about where the Corpsman stopped the Rangers from playing games with the bloody Airborne dog tags in front of a couple of thousand Airborne that felt they had been ill used to start with. Millions of Deplorables are watching this political masturbatory act play out.
    Wisdom would tell the Democrats that Trump has been effectively neutered and they should simply let this brief flash of Americana burn itself out; however, true authoritarians can not help themselves. Though people always learn a "lesson" it usually is NOT that which the master thinks is being taught.
    This will not end well for the Republic.

  8. Anon, Scott Johnson at Powerline had a good post that linked to something he wrote quite some time ago, saying that the Russia Hoax is nothing but, basically, a repeat of Watergate--it's all just the excuse that Liberals feel they have to play out when the Wrong Guy wins. It's the insult to their sense of entitlement that comes from seeing the guy who's on the "wrong side of history" finish ahead of those who KNOW they're the ones on the right side of history. Hell hath no fury like an Hegelian scorned. It goes all the way back to Woodrow Wilson.

  9. I'm not a Flynn fan, but I regard these allegations as "narrative".

    I perhaps need to clarify that I am speculating about how Flynn came to be suspected of colluding with Russia to meddle in the 2016 elections.

    I myself am not accusing Flynn of anything.

    Rather, I am speculating about how Flynn came to be one of the four US persons involved in Trump's election campaign who (according to James Comey) have been investigated by the FBI in relation to Russia's alleged meddling in the election.

    The four were Carter Page, Paul Manafort, George Papadopoulos and Michael Flynn.

    What did Flynn possibly do to get himself investigated by the FBI for colluding with Russia to affect the 2016 Presidential election? I think the answer to that question involves his relationship with RT America, which began no later than December 2015 (fifteen).

  10. I think we're on the same page, Mike. I would add that this Russia - Flynn narrative would likely have been attempted on any GOP candidate who allowed Flynn to become part of his campaign. Apparently Flynn was being eyed by virtually every GOP candidate based on his criticisms of the Obama administration.

  11. Mike, here's a fairly convincing article to illustrate how FARA can work, but often doesn't work: Bombshell: New Info Says Khashoggi Was A Foreign Influence Agent.