When he repeated similar lies to the FBI during a January 2017 interview, he was charged with a federal crime and subsequently pleaded guilty in federal court.
Were his lies material, as required by the statute to which he pleaded guilty? Absolutely. For those of us who spent a professional lifetime as prosecutors and in the Justice Department, this is not a close call.
Had Flynn been asked his favorite ice cream flavor by FBI agents and told them it was vanilla when he preferred chocolate, that would be immaterial. But lying to the FBI about his conversation with a Russian diplomat, given his financial and other ties to Russia, in the wake of massive Russian interference in our 2016 election, and during an FBI counterintelligence investigation concerning Russia? That is material — plain and simple.
Now, in a stunningly dishonest intervention orchestrated by Attorney General William P. Barr, the Justice Department posits that Flynn’s false statements were not material and that the charge to which he pleaded guilty should be dismissed.
So, it might be helpful to make a partial list of those who seemingly thought Flynn’s lies were material just, as they say, for the record:
President Trump thought Flynn’s lies were material. He fired Flynn in 2017 for lying to Vice President Pence and tweeted that year that he “had to fire General Flynn because he lied to the Vice President and the FBI.” White House chief of staff Reince Priebus, according to special counsel Robert S. Mueller III’s report, recalled that Trump was angry at Flynn for lying about the conversation he had with the Russian diplomat.
Vice President Pence thought Flynn’s lies were material, stating he knew at the time Flynn was fired that Flynn “lied to me” and that “the president made the right decision [to fire] him.” It seems that Flynn’s lies were material to Trump and Pence.
Senior Justice Department officials, including acting attorney general Sally Yates and National Security Division Chief Mary McCord, thought Flynn’s lies were material, because, as the Mueller report noted, they were concerned it “[created] a compromise situation for Flynn because … the Russian government could prove Flynn lied.” That, as the report further noted, afforded leverage over Flynn such that Russia “could use that derogatory information to compromise [Flynn].”
Federal prosecutors detailed to the Special Counsel’s Office thought Flynn’s lies were material. They signed their names to court documents that outlined the facts that supported his guilty plea, including the material false statements Flynn made. That six-page statement of the offense is part of the public record.
Federal District Judge Rudolph Contreras thought Flynn’s lies were material. Flynn pleaded guilty to the charge of making a material false statement in his courtroom in December 2017. A judge will accept a guilty plea in federal court only if there is a factual basis for it and only if all the elements of the offense are proved. If the judge did not believe the lies were material, he presumably would not have accepted the plea agreement.
Federal District Judge Emmet Sullivan thought Flynn’s lies were material. Flynn restated his guilty plea in front of Sullivan in December 2018, after the case was transferred to his court. Further, in December 2019, Sullivan noted in a written order that Flynn’s false statements to the FBI were clearly material.
Flynn’s two original experienced defense attorneys thought Flynn’s lies were material. They signed their names to a plea document, noting that they “concur in [Flynn’s] desire to adopt and stipulate to this Statement of the Offense as true and accurate.”
Michael Flynn thought his lies were material. He signed his name to a plea agreement “knowingly and voluntarily and because [he was] in fact, guilty of the crime charged.” Flynn stipulated to a filed “Statement of the Offense” and declared “under penalty of perjury that it is true and correct.” That statement — to which Flynn agreed — noted that Flynn “made materially false statements and omissions during an interview with the [FBI] on January 24, 2017” and then spelled out, in detail, those false material statements. Flynn pleaded guilty in front of one federal judge, maintained his guilty plea in front of a second federal judge and, while under oath, twice admitted that he lied and that his lies were material.
It might also be helpful to make a partial list of those who do not think (or no longer think) Flynn’s lies were material:
Barr, who orchestrated this stunning reversal with the assistance of his underlings. Barr noted that with respect to his decision to seek dismissal of the charge against Flynn, “history is written by the winners.”
Trump, who now says he is “very happy” for Flynn and that the people who prosecuted him are “human scum.”
Yes, Trump made both lists. “It’s a beautiful thing,” George Orwell wrote, “the destruction of words.”