But the damage was done. Flynn had lost the confidence of Trump and Pence. “This was an act of trust, whether or not he misled the vice president was the issue,” said Spicer, adding that White House officials had determined that Flynn hadn’t violated the law.65
At Trump’s request, Flynn stepped down as NSA on February 13, 2017, after serving only twenty-four days. In his letter of resignation, Flynn apologized, saying that due to the fast pace of events, he had “inadvertently briefed” Pence and others with “incomplete information.”66
“I have nothing to be ashamed of and everything to be proud of,” he told Fox News.67
The New York Times reported the next day that “Obama advisers grew suspicious that perhaps there had been a secret deal between the incoming [Trump] team and Moscow, which could violate the rarely enforced, two-century-old Logan Act.”68
All preposterous. But Comey and McCabe had succeeded in ousting Flynn and giving oxygen to the “collusion” investigation. That outrageous illegal maneuver was at the heart of the Trump-Russia hysteria.
The Wall Street Journal raised the “troubling” issue that Flynn might have been targeted by intelligence officials who were out to get him; few other media outlets seemed to understand or care about that issue.69
If Flynn hoped that his resignation would quell the furor, he was mistaken. Top-ranking Democrats demanded an investigation—all over a phone call that had been perfectly legal and in keeping with Flynn’s role in the new administration.70
Almost as soon as Flynn resigned, CNN aired a story that the FBI would not pursue any charges against him. “The FBI interviewers believed Flynn was cooperative and provided truthful answers,” according to CNN’s Evan Perez. “Although Flynn didn’t remember all of what he talked about, they don’t believe he was intentionally misleading them, the officials say.”71
Twisting the Knife
At first, it looked as if Flynn’s departure was simply an early administration casualty. But Comey, McCabe, and their cohorts set out to destroy his life, digging deep to find any wrongdoing.
Did he file the right paperwork regarding his speech in Moscow, for which he was paid $33,750, to speak about US foreign policy and intelligence matters? (Far less than Bill Clinton had received for a speech in Moscow.) Before joining the Trump administration, did he register as a foreign agent when he lobbied for the Turkish government, for which his firm was paid $530,000?72 Did he put it on his security clearance form? Did he disclose a twenty-minute public conversation with a graduate student with Russian and British nationalities at a 2014 UK security conference?73 Why did he meet with Kislyak and Kushner at Trump Tower in mid-December 2016?74
The interaction with a graduate student, Svetlana Lokhova, amounted to a brief introduction to Flynn and a twenty-minute presentation at a dinner organized by Sir Richard Dearlove, the former head of MI6, peddled to the media by FBI informant Stefan Halper as a nefarious conversation. Flynn was most vulnerable on filling out appropriate security clearance forms regarding foreign payments. However, he had registered as a foreign lobbyist for Turkey prior to his appointment as NSA, according to his attorney Robert Kelner.75
“Gen. Flynn briefed the Defense Intelligence Agency, a component agency of the DoD, extensively regarding the RT speaking-event trip both before and after the trip, and he answered any questions that were posed by DIA concerning the trip during those briefings,” Kelner said.76
Even though the two FBI agents who interviewed Flynn felt that he had not been deceptive, Special Counsel Robert Mueller decided to bring charges against him for lying. On December 1, 2017, in the District of Columbia court, Flynn pleaded guilty to one count of making a materially false statement to federal agents under 18 U.S.C. § 1001 and agreed to cooperate with the special counsel in its investigations.77 The “criminal information” filed in court outlined four lies told by Flynn in two conversations with Kislyak.
Senior prosecutor Brandon Van Grack said that Flynn had “falsely stated” to the FBI that he hadn’t asked the Russian ambassador to refrain from escalating a response to the sanctions.
In fact, Flynn had talked to a senior official with the transition team about “what, if anything, to communicate to the Russian ambassador.”78 Immediately after that conversation, Flynn had called Kislyak and asked that Russia respond only “in a reciprocal manner.” On December 31, Kislyak called him back to tell Flynn that his country had “chosen not to retaliate in response to Flynn’s request.”79
In addition, he had “falsely stated” that during calls to the governments of Russia and several other countries, he had asked only about their positions on a US resolution submitted by Egypt condemning Israeli settlements in disputed territories. In fact, at the direction of a senior Trump administration official, Jared Kushner, he had asked them to delay the vote or defeat the resolution.80
Taken together, the charges sounded serious, but they were not. There was nothing nefarious about Flynn’s communications with Moscow. Had Strzok and Pientka never visited his office, had Flynn refused to talk to them, there would had been no “crime.” And had Flynn lied? Or forgotten details?
Pleading guilty to such a flimsy process charge was puzzling. If Flynn went to trial, he likely would have prevailed, since the only two witnesses to the alleged lie were on record in their FBI reports as having said he had not appeared to be lying. But Flynn stood up in court and said he had lied. It was clear that the warrior was falling on his sword.
“I recognize that the actions I acknowledged in court today were wrong, and, through my faith in God, I am working to set things right,” Flynn said in a written statement. “My guilty plea and agreement to cooperate with the Special Counsel’s office reflect a decision I made in the best interests of my family and of our country. I accept full responsibility for my actions.”81
Flynn was the fourth and most prominent member of the Trump campaign or administration to be publicly charged by Mueller. Former Trump campaign chairman Paul Manafort and his deputy and business associate Richard Gates III were charged with financial improprieties related to earnings from work they’d done in Ukraine unrelated to Trump and were facing prison time. And there was the hapless campaign adviser George Papadopoulos, who had pleaded guilty to lying to the FBI about his contact with an alleged Russian spy.
But Flynn was the prize.
Trump “can’t get away with claiming these charges aren’t about his inner circle’s contacts with Russia, and he can’t dismiss Michael Flynn as some low-level aide,” said DNC chairman Tom Perez.82
“That Mueller would treat Flynn as someone worth flipping, presumably in pursuit of a bigger case, is, to say the least, suggestive,” said Amy Davidson Sorkin in The New Yorker.83
“The deal delivers to Mueller a witness who spent nearly all the 2016 campaign and the presidential transition at Trump’s elbow, one who was involved with many conversations with foreigners, including key Russians,” wrote Miles Parks for NPR. “Flynn’s cooperation resets the clock on the Russian imbroglio as he begins debriefing Mueller and his team.”84
Judge Emmet G. Sullivan, the presiding judge, probably wondered if Flynn was freely entering a guilty plea, if his lawyers had had access to any and all exculpatory evidence. On December 12, 2017, Sullivan ordered Mueller to produce “any information which is favorable to defendant and material either to defendant’s guilt or punishment.”
He issued another order in February 2018: “If the government has identified any information which is favorable to the defendant but which the government believes not to be material, the government shall submit such information to the Court for in camera review.”85 The court, not the prosecutors, would thus decide whether the material should be produced. He postponed Flynn’s sentencing hearing until May.
That order shocked legal observers and probably Mueller as well. “It certainly appears that Sullivan’s order supersedes the plea agreement and imposes on the special counsel the obligation to reveal any and all eviden
ce suggesting that Flynn is innocent of the charge to which he has admitted guilt,” wrote National Review’s Andrew McCarthy.86
Byron York of the Washington Examiner reported that according to two sources familiar with his closed-door congressional testimony on March 2, 2017, “Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.”87
Comey emerged on his book tour to play Grand Weasel. “I don’t know where that’s coming from,” he told George Stephanopoulos of ABC. “That—unless I’m—I said something that people misunderstood, I don’t remember even intending to say that. So, my recollection is I never said that to anybody.”88
In May 2018, a less redacted version of the report on Russia’s election meddling by the House Intelligence Committee was released, revealing that Comey’s memory was faulty—or he had lied to Congress in May 2017—and that the FBI had tried to hide that information. New details of the probe were revealed.89
Comey had testified that the FBI had conducted a counterintelligence investigation of Flynn during 2016, but he had ended it by late December of that year. However, the file had been “kept open due to the public discrepancy surrounding General Flynn’s communications with Kislyak”—a discrepancy that didn’t arise until mid-January.90
A CI investigation of a US citizen proceeds on the suspicion that he or she is an agent of a foreign power. The DOJ and the FBI seemed to be pursuing the theory that Flynn—despite his stated views about Putin and Russia—was an agent of the Kremlin.91
The House report quoted Comey’s previously redacted statement to the committee on March 2, 2017: “The agents . . . discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”92
Perhaps there were more extensive quotes not in the report to support Comey’s revisionism. But Comey, as FBI director, didn’t recommend charging Flynn with lying.
Add to that McCabe’s testimony to Congress on December 19, 2017: “The two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”93
All exculpatory. Did Flynn’s lawyers have access to this testimony?
If Mueller’s team had been hiding crucial documents, Flynn could have withdrawn his guilty plea. However, that wouldn’t have ended the prosecution’s case. It could go after him on other charges—or target someone he loved.
The Feds Squeeze Flynn’s Family
The original authorization by Rod Rosenstein outlining Mueller’s investigative mandate as special counsel was filed on May 17, 2017. However, when the Mueller Report was released in April 2019, it revealed two additional scope memos authorizing specific targets.94
The first was dated August 2, 2017. Though much of it remains redacted, it included four sets of allegations against Flynn, including conspiracy with a foreign government, lying to the FBI, unregistered lobbying, and making false statements and omissions on government documents regarding his representation of Turkey.
Flynn Intel Group was probed for its work on behalf of the Turkish government involving making a documentary about Fethullah Gülen, a Turkish cleric living in Pennsylvania. President Recep Tayyip Erdog˘an had accused Gülen of orchestrating a bungled coup attempt. Gülen had denied the allegations, and the US government had refused Turkey’s demands for his extradition.95 The work had occurred during the campaign but had ended in November 2016.96
The second scope memo, dated October 20, 2017, expanded the targets to include Flynn’s son Michael G. Flynn, and established the authority to pursue “jointly undertaken activity.” Though his name was redacted, it was easy to identify in context.97
Perhaps up to that point Flynn had fought off Mueller’s bullies. But when they trained their “lawfare” weapons on his son, who had a four-month-old child, the general faced an escalating danger that threatened not only him and his wife, their home and life savings, but his entire family.
The squeeze play authorized Mueller to demand documents, phones, and laptops from Michael G. Flynn and any joint businesses. He could be indicted as a coconspirator.
A month after the second scope memo was filed, Flynn signed the plea agreement. He put his house on the market for $895,000 to pay his legal fees. Friends set up a fund so supporters could donate to his defense.
“I’m not going to sugarcoat it, this has been a trying experience,” said Joe Flynn, his brother. “It has been a crucible, and it’s not over.”98
After Sullivan’s order that the Mueller team disgorge any hidden evidence, including original FBI documents, Mueller’s prosecutors filed a five-page memo offering more information, outlining lies Flynn had told to the media, the transition team, and Pence. None of those actions were crimes, just the excuses for the interview. In a separate memo referenced by Mueller, McCabe admitted that he had pressed Flynn not to have a lawyer present. This memo confirmed that the agents had had no legal basis for interviewing Flynn.99
Mueller also referred to a summary of an FBI interview of Strzok on July 19, 2017, undertaken in order “to collect certain information regarding Strzok’s involvement in various aspects of what has become the Special Counsel’s investigations.” The Strzok 302 had been entered into FBI files on August 22, 2017.
The interview was done four days after his lover, Page, left the OSC and days before Strzok would also be removed. Strzok said he and Comey had “at various times” updated Yates about “the entire span of the FBI’s Russia election interference/collusion investigations.”100
Flynn told Strzok that “he had been trying to build relationships with the Russians.” That doesn’t sound like someone deep in Putin’s pocket. Strzok said that Flynn had had a “very sure demeanor and did not give any indicators of deception. . . . Flynn struck Strzok as ‘bright, but not profoundly sophisticated.’ [author’s italics]” The most important observation was this one line: “Strzok and [redacted agent] both had the impression at the time that Flynn was not lying or did not think he was lying.” Another interesting tidbit: “He then stated that I probably knew what was said” in the phone call.101 So why lie?
Mueller didn’t publicly file even a redacted form of the original Flynn 302, written by agent Pientka. Why not? Senator Charles Grassley, the chairman of the Senate Judiciary Committee, repeatedly demanded that the DOJ present Pientka for testimony but was rebuffed. After Flynn’s guilty plea, Grassley asked for a transcript of the Kislyak call, the Flynn 302, and an interview with Pientka, only to be told no.102
Pientka could give his impressions on whether Flynn had told the truth and shed light on whether the document had been altered or falsified. What were they hiding? Representative Mark Meadows shed some light on why Pientka was the DOJ’s invisible man: he was on Mueller’s team.103
On December 4, 2018, Mueller filed a sentencing memo in Judge Sullivan’s court recommending little or no prison time for Flynn, saying that the retired general had provided “substantial” help to investigators about “several ongoing investigations.” But the memo wasn’t a “smoking gun” showing that Trump had colluded with the Russians or done anything else illegal. It wasn’t even a squirt gun. It praised his military and public service and said that Flynn had been interviewed nineteen times by prosecutors on Mueller’s team and other DOJ lawyers. A heavily redacted addendum suggested that he had provided no meaningful information that Trump had conspired or coordinated with Russia to win the election.104
The documents made a passing reference to the moribund Logan Act—pointless, except to provide cover to the Obama officials who had used it as an excuse to go after Flynn. The memo did not address how the investigation had begun.
Trump’s attorney Rudy Giuliani
likened Flynn’s offenses to “spitting on the sidewalk, with major repercussions for many.” He called the Mueller team “overzealous media inspired prosecutors. They are sick puppies.”105
On December 11, 2018, Flynn’s attorneys filed a lengthy sentencing brief alleging that McCabe had pressed Flynn not to have an attorney present during the interview and that the interviewing agents had not warned him that any false statements he made could constitute a crime.106 The document described the aggressive tactics the FBI had taken in targeting Flynn, in sharp contrast to the kid-glove strategies used with Clinton and her cronies over her illegal home email server. Investigators had believed that several people, including Clinton, had been untruthful in those interviews, but no one had been charged with making a false statement.
Footnote 23 in Flynn’s sentencing brief raised a huge red flag, referencing the date on Flynn’s 302 as August 22, 2017—nearly seven months after he had been interviewed and about a week after Strzok had been removed from the special counsel’s team over his anti-Trump text messages.107
Judge Sullivan ordered the Flynn team to turn over documents backing its allegations and gave Mueller forty-eight hours “to file on the docket FORTHWITH the cited Memorandum and FD-302” and any other documents related to the inquiry.108
Shockingly, Mueller was still trying to hide the truth from the public. On December 14, he filed redacted versions of several documents—the Strzok 302 and McCabe’s memo—urging the judge not to see the “circumstances” surrounding the events as “mitigating.”109
Mueller wrote, “The defendant chose to make false statements about his communications with the Russian ambassador weeks before the FBI interview, when he lied about that topic to the media, the incoming Vice President, and other members of the Presidential Transition Team. When faced with the FBI’s questions on January 24, during an interview that was voluntary and cordial, the defendant repeated the same false statements. The Court should reject the defendant’s attempt to minimize the seriousness of those false statements to the FBI.”110
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