I helped a client take a plea recently and as I sat there for about the 500th time of pushing a reluctant client over the cliff, the wording of what is an unconscionably one-sided contract was underscored for me in the context of this “Michael Flynn thing”. It's a perfectly ironclad screwjob, this Rule 11 plea colloquy. I'm sure you can find the text and the zillion caveats it contains somewhere. It covers everything that a repentant buyer might conjure, from the person’s mental and physical state, consciousness, threats or coercion, misinformation, mistake, etc. It even has the admonitions that your lawyer’s bad advice is not an excuse and that the court is “not a party” to the negotiations and can do what it wants. And, most importantly, that you can’t take it back. You’ve been warned.
I'm not a great fan of 1001. It's a horrible trap for defendants. The statute is overly expansive (It covers "any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States" as long as it's "material", something that seems much too elastic) and the courts are horribly permissive enablers of a line that is constantly being violated. As a criminal defense lawyer, part of me wants to cheer this brouhaha as well as the attention to the FISA court abuses in particular, and the thugish nature of the FBI in general. Those are topics well past the time for discussion and redress.
In addition to having jacked up punishments to draconian levels, eliminating all notions of parity between accuser and the accused, excusing all sorts of extortionate behavior (such as threatening one’s family members), and having witnessed what these agents do to targets - as well as the courts' disinterest in any objections to the expansive nature of the statute that makes lying a crime (I always tell my clients that they have a first amendment right to tell an agent to go fuck himself but can't tell a fib.) puts me in an emotional double bind; I’m glad for Flynn in the general sense that he's a defendant but I’m pissed that this kind of treatment gets reserved for the likes of him and Ollie North.
Let’s quit acting like this came out of the blue or that he was targeted or that he is “innocent”. No, Flynn isn’t the hapless infant who wandered out on the road only to be struck down by a speeding motorist. He’s the power monger who got caught playing, appropriately enough, Russian roulette. Flynn was not cherry-picked for investigation out of thin air. He was on the radar the minute he left the military and started hobnobbing with nefarious international apparatchiks, often folks with whom we have an, at best, adversarial relation. His people skills, as evidenced by his troubled past at the DIA and his troubles with "truthfulness and veracity" were notoriously evident and part of a media record condemning his chuminess with Russia as well as detailing other close calls with shady international machinations. Obama made it a point to personally warn Trump about him.
Like it or not, what you have with Flynn is someone trying to weasel out of a deal he made, a deal that probably foreclosed more serious charges. He struck a bargain which at the time must have sounded like a pass. After all, he pleaded guilty to telling an agent a lie, an offense capped at five years and easily the least thing with which he could, arguably, be charged. The punishments the courts have been handing out to the well-connected grifters are amazingly lenient, especially given the government’s recommendation for leniency.
A little context seems appropriate here. Months after he quit, Flynn would come to register with the Justice Department as a foreign agent for work he had previously done; some weeks after that, the Director of the CIA voiced concerns about his activities; a month after that, the Pentagon Inspector General announced an investigation into whether he had accepted money from foreign governments without the required approval. While he was certainly within his rights to invoke the 5th, his refusal to turn over documents to a Senate panel investigating his interactions with Russian officials as part of its probe into Russia's meddling in the 2016 presidential election did nothing to add to his luster. And in midsummer, months prior to his December 1 plea, two lawmakers accused him of having violated federal law by failing to disclose a trip and any foreign contacts he had during a 2015 Middle East trip. So, yeah, a plea to something capped - improbably worst case - at five years, sounded like a walk.
Flynn didn't just fail to disclose payments by a foreign government, he hid them. He was required to obtain prior permission from the Defense Department and the State Department before receiving any money from foreign governments. In the past he had failed to seek approval before a speech where he sat on the dias with Putin. He did not report the payment when he applied for renewal of his security clearance two months later and would later be accused by some congressional panel members of obfuscating the payments so as to appear that the payments were from an American company.
And, remember, none of this was happening in a vacuum - the heat of the campaign, the anomalous and tumultuous outcome of the election, Comey’s hapless release of the Clinton email information and what impact that might have had on the outcome of the election, the failure to “lock her up” movement, the very palpable trail of Russian meddling; wikileaks; FISA; the Clinton/Lynch tarmac fiasco, - it all added to a potboiler worthy of a banana republic.
In January, Flynn would be interviewed by agents. Here, partisan interpretations abound. Did they set out to entrap him? Normally, that’s merely a tenuous issue. Were the agents’ suspicions credible? How can they not be? Flynn sat in on classified national security briefings with candidate Trump at the same time that he was working for foreign clients. Did this not raise, at least on a prima facie level, ethical concerns and conflicts of interest? No one should raise an eyebrow about this?
Upon being named to the transition team, Flynn started courting Kislyak, the Russian ambassador, almost immediately. They had meetings, all of which seem appropriate given his upcoming new status. But, two days before the new year, the Obama administration announced retaliatory measures in response to the Russian interference, including the expulsion of 35 suspected Russian intelligence agents. In response, Kislyak called Flynn. The conversation was intercepted by U.S. intelligence agencies monitoring Kislyak. Flynn choose not to document the calls with the ambassador. Both of those facts loom large.
And, what was Flynn's response when confronted by members of his own administration concerning the news story about his contacts with the Russians? Lost in all of this, apparently, is the fact that Flynn “resigned” on Feb. 13, 2017 because he was accused of misleading multiple White House officials, including the Vice President, about the nature of communications with Kislyak. Questioned directly by Pence and Reince Priebus, Flynn denied having spoken about sanctions with Kislyak.
What was the administrations response? They, along with White House Counsel McGahn concluded that Flynn had repeatedly lied about his discussions with the Russian and issued findings to that effect. Of course, they had been briefed with the transcripts and knew him to be lying.
Flynn’s departure was not just a defensive move on both his part and the administration’s. It was a tacit admission of the veracity of the 1002 charge and not just to the agents. Pence, Priebus, McGahn and even including the President concluded he was culpable. Comey, would later say Trump told him that “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go,” hardly words in defense of the innocent.
(To be continued)
