Thursday, July 11, 2019

Flynn's Legal Team Responds To The Government

Yesterday I detailed the Government's (prosecution's) response to Judge Sullivan's demand for an explanation of what, if any, effect the latest developments in the "Bian Kian" case would have on Michael Flynn's sentencing. Basically, the Government stated that that might depend on Flynn's behavior during the Bian Kian trial--hinting that they might seek to increase Flynn's sentence.

Today Flynn's team responded. Margot Cleveland has attached the response to a tweet. What follows is what could be termed a summary and paraphrase of the most important points. When particularly necessary I've placed certain passages within quotation marks, but most of it is not far from verbatim.

Flynn's team takes advantage of Judge Sullivan's demand to do a bit of lobbying. Thus, the most important point is not that they expect no effect on sentencing, but that Flynn's team has, in the course of their continuing review of the Flynn case file, already identified "crucial and troubling issues that should concern any court." This is a clear confirmation, in my view, that they will be attacking the guilty plea and the entire underlying basis for the prosecution of Flynn. So ...

Despite intimations in the Government's response that it will try to increase Michael Flynn's sentence, depending on his testimony, if any (in the Bian Kian trial), there is no basis for doing so. Regardless of who calls Flynn to testify, his testimony will be consistent with his grand jury testimony. [Note, she doesn't say with anything he may have said in plea negotiations.] 
Flynn's new counsel are finding the time they've received to review the massive file even more important than they thought. They have only scratched the surface, yet are already identifying "crucial and troubling issues that should concern any court." 
Flynn's counsel are not yet in a position to brief the court on the significant issues they've already uncovered, because they've been busy preparing Flynn's cooperation in the Bian Kian trial. In the course of this Flynn has continued to respond truthfully to government questions--which the government doesn't like.  Nevertheless, his answers remain consistent with his GJ testimony. [In almost so many words, they are accusing the Government of suborning perjury.]
If the government's case in Bian Kian collapses, that will be no fault of Flynn's--who has cooperated fully--and should have no effect on sentencing. He cannot acquiesce to the Government's demand for untruthful testimony. 
The judge in the Bian Kian case has held that the Government has not proffered evidence sufficient to establish a conspiracy for the purpose of admitting "co-conspirator statements." [The Government wants to call Flynn a "co-conspirator".] Further, the judge has held that statements in Flynn's FARA submission do not "allow any inference of the alleged conspiracies."

Flynn's counsel expect to further brief Judge Sullivan on 8/31/19, at which time they also expect to ask for more time to continue reviewing the file.

Note the calm tone of the response. Flynn's team does not seem to have been taken by surprise. For a somewhat hysterical reaction, see CTH.


  1. I thought that Sundance was a little over the top, especially his comments about Barr.

    Sundance is very knowledgeable but sometimes he goes off the rails.

    1. Yes. He can be quite convincing at times, but none of his worst case scenarios have panned out. So far. :-)

  2. The real story here has nothing to do with either Mike Flynn or Bian Kian. Numerous DOJ attorneys have committed, at minimum, egregiously unethical acts in service to a political agenda, or at worst, blatant criminal acts of deception, fraud, and conspiracy. Barr cannot, and should not, let this type of conduct slide into oblivion, or worse, a whitewash coverup (which is what would have happened under Sessions/Rosenstein). The fundamental integrity of DOJ going forward is a stake. Barr cannot do his job if his crew is made up of crooks. If it continues, Barr himself is to blame.

    1. 1. Of course it has to do with Flynn. It was important to the Deep State to take him out.

      2. Barr may be AG, but he can't simply take over local prosecutions. That's wny Mueller turned these cases over to local USA offices--so that people like Jesse Liu would be supervising them. USAs are presidential appointees and the office of USA is actually older than the DoJ itself. Trump can fire USAs, but it's politically difficult. Read this to understand the complications: United States Attorney. I have no doubt that Barr is watching closely and will take action when he can.

  3. It's funny the DoJ is prosecuting Flynn for "misstatements" in his prior lawyer's FARA filing. Also funny that his prior lawyers were Covington Burling, who had employed Eric Holder (and still do) as a Partner. Also amusing that Covington produced their FARA filing with the assistance of the DoJ FARA Division, which was overseen by Eric Holder in his capacity as Attorney General, who then decided to prosecute Flynn for the FARA filing.

    Drain. The. Swamp.

    1. I've said it before--I don't think Flynn was well served by his previous lawyers. I don't think he served himself well.

  4. It seems to me that Michael Flynn is arguing that he did not do a FARA registration of his contract with Ekim Alptekin because Flynn did not know that Alptekin was acting as a front for the Turkish Government.

    If so, then I wonder why Flynn did not simply ask Alptekin why he as a private individual wanted Flynn to lobby the US Government to take action against Fethullah Gulen.

    As the owner of a lobbying company, Flynn should have known about FARA requirements, or should have at least employed experts about such requirements.

    It's plausible that Alptekin indeed was just a private individual who decided to use some of his own wealth to hire a US lobbyist to cause US action against Gulen. However, this was an odd situation in which Flynn's company eventually might get into FARA trouble.

    It seems that Flynn did not inquire about Alptekin's motivations and so was not prepared to defend himself against FARA charges.

    Flynn seems to be an incompetent owner of a lobbying business.

    Also, I am puzzled why this FARA violation has turned into such a big deal. Does the US Government really imprison lobbyists for FARA violations? It seems like the kind of violation that should be punished by a fine or by a suspension of a license.

    Also, does the FBI normally investigate FARA violations? It seems like a matter for the Commerce Department to investigate.

    1. You raise issues about FARA that are important to keep in mind with all this. FARA was intended to force disclosure of relationship with foreign powers. Open activity would quite reasonably not come under FARA--which is why for most of its life (since 1938) people who hadn't registered were simply and politely requested to register. What you're seeing in these cases is a FARA violation being used not as a prosecuted offense but as a criminal predicate for other offenses. For example, it might be used as the criminal predicate for obtaining a FISA, or possibly in a conspiracy count, or maybe in a Fraud Against the Government case. The reason FARA itself wouldn't be prosecuted in such cases is because it could be challenged on the grounds I just outlined--inapplicable to the circumstances where the subject is open in what he's doing, not to be prosecuted, just require registration.

      DoJ has a separate FARA office, and the FBI comes under DoJ, so ...

    2. According to Sydney Powell's statement to the court, Flynn paid Covington Burling $170,000 to prepare his FARA filing for him. All he had to do was sign the thing. Which he did - which allowed Covington Partner Eric Holder to charge Flynn with a crime of signing a FARA document containing false info.
      This is not a reflection on Flynn. It's a revelation off the cabal of Obama/Holder/Clinton/Brennan/etc. - corrupt to the core.
      Nobody wants to admit their "justice" system is populated by corrupt thugs. It's easier on the conscience to pretend otherwise.

    3. I certainly wouldn't be surprised to learn of Holder's involvement in the Russia Hoax.

    4. I have read suggestions (I don't recall where) that Flynn was involved in some plot to kidnap Gulen in the USA.

      Assuming that such suggestions are false, it seems to me that Flynn's lobbying business was merely advocating -- on behalf of Alptekin -- that the US Government take act legally against Gulen. In particular, I think that Flynn was using his Intelligence contacts and knowledge to establish formal Intelligence requirements targeting Gulen.

      Perhaps Alptekin as a private individual had some good cause to hire a US lobbyist for that purpose. On the other hand, perhaps Alptekin was just acting as a front for the Turkish Government.

      In either case, Flynn's lobbying business was mrely advocating that the US Government act legally against Gulen.

      It does not make sense to me that the US Government would make such a big deal about the supposed FARA violation itself.

      So, DOJ/FBI used the supposed FARA violation as a predicate for a criminal predicate to investigate some other matter.

      In the context of Flynn's alleged participation in an "Enterprise" in Trump's campaign staff, I argue here again that the DOJ/FBI intention was to tie the Flynn-Alptekin lobbying contract to the stolen e-mails of Hillary Clinton.

      The idea was that Russian Intelligence stole the e-mails and found among them evidence that she as Secretary of State had arranged visas corruptly for Gulen supporters to teach at Gulen's schools in the USA. Russian Intelligence had shared those e-mails with Alptekin, who had informed Flynn. These e-mails would be revealed to the US electorate during the days before the 2016 Presidential election.

      The FBI's enterprise counter-intelligence investigation was trying to prove, along these lines, Flynn's complicity in the Trump-Putin collusion to affect the election against Clinton.

  5. In his article published by The Hill on Election Day, November 8, 2016, Michael Flynn hinted that information about Secretary of State Hillary Clinton's corrupt arrangement of teaching visas for G├╝len's supporters could be found on Anthony Wiener's laptop.

    The hint was Flynn's gratuitous mention, in his article,
    of Weiner's wife "Huma Abedin, Hillary Clinton’s close aide and confidante". The hint was that the information was available to anyone who had Clinton's e-mails that had been created and sent during her tenure as Secretary of State.

    Although Flynn's article was not published until Election Day, the article indicated his knowledge long before that publication. I think that FBI knew that Flynn had been communicating with Alptekin and others along those lines.

  6. Michael Flynn's new attorney Sidney Powell submitted to the court a memorandum opposing his designation as a co-conspirator. Powell's memorandum suggests that Flynn was framed by Ekim Alptekin.

    Powell's memorandum to the court records that Flynn's former counsel knew -- before the FARA application was submitted -- the following.

    The Government of Turkey was involved in the project and likely the principal beneficiary ....

    Mr. Alptekin set up meeting in September, when Flynn was led to meet with Turkey's Transportation Minister and Foreign Minister

    Alptekin had a relationship with Erdogan’s son-in-law.

    That 75-page document, which prior counsel possessed, is all about Gulen and was used as the basis for Flynn's op-ed Flynn that was published on Election Day, November 8, 2016. Bijan Kian did the first draft of the op-ed.

    Flynn's former counsel recognized that Flynn's “op-ed and sleeper networks, plus criminal referrals changes context.”

    There was little evidence that the Flynn-Alptekin contract had any business or commercial purpose.

    Flynn's payment for the op-ed was done through the Alptekin contract.

    Unknown at the time to Mr. Flynn, Mr. Kian sent Ekim Alptekin a copy of the op-ed. Alptekin wanted changes made to it, and Mr. Flynn did not make them.

    They were still trying to decide even if they had to file the FARA registration on February 14, 2017. That call to Mr. Flynn was prompted by a call on February 13, 2017, from then-resigning head of the NSD at DOJ, David Laufman himself. This was the day Mr. Flynn had to resign as National Security Advisor. Mr. Laufman and others called Mr. Flynn’s former counsel and pressured them to file the FARA. In counsel’s call with Mr. Flynn, in which they advised him where they stood, he said very little, but authorized his former counsel to file it and “Be precise.”

    This level of involvement, interest and pressure from the FARA division was unprecedented.

    Flynn's legal team preparing the FARA registration “did not necessarily go through every doc; were trying to capture the high-level info of who the client was and nature of the work.”

    One of the statements in the FARA filing the government alleges as false came directly from information provided to former counsel for Mr. Flynn by counsel for Ekim Alptekin at Arent Fox and was inserted in the filing despite former counsel’s concerns with the Arent Fox submission.

    Flynn's former counsel wrote on February 20, 2017, in preparation for meeting with the Department of Justice that: “We don’t view this meeting [that Alptekin arranged between General Flynn and two Turkish ministers] by itself as resulting in agency on behalf of the government, and there is no indication that the meeting or any other contacts involved the Turkish government directing FIG’s activities.”