“Clear now that General Flynn was set up by dirty cops at the highest levels of our government…”
— Rep. Devin Nunes (R-Calif.), in a tweet, April 29, 2020
“Not only should general Flynn’s charges be dropped immediately but the treasonous actors who set him up should be in jail!!!”
— Donald Trump Jr., in a tweet retweeted by the president, April 29, 2020
Michael Flynn, the former head of the Defense Intelligence Agency who briefly served as Trump’s national security adviser, pleaded guilty to lying to the FBI in 2017.
But now that Flynn is seeking to withdraw his guilty plea, Trump and his close allies have turned the case into a cause celebre. In the latest twist, they argue that documents released last week show that Flynn was set up by FBI agents.
Flynn’s case has dragged on so long, readers may need a refresher course on how it started and what the Justice Department and the courts have said in rejecting conspiracy theories that Flynn was the victim of a “deep state” plot.
(Update, May 7): In a reversal, the Justice Department filed a motion to drop the case against Flynn on Thursday. Attorney General William P. Barr had ordered a review of the Flynn prosecution in January. The Justice Department cited its findings from that review in seeking to dismiss the case.
Why was Flynn charged?
President Barack Obama imposed new sanctions on Russia for interfering in the 2016 election, which took effect Dec. 29, 2016.
That day, Flynn spoke with Sergey Kislyak, at the time the Russian ambassador to the United States. Flynn requested that Russia not escalate the situation, but respond to the new sanctions in a reciprocal manner, according to his guilty plea.
Kislyak called back on Dec. 31 and said that, in response to Flynn’s request, Russia had chosen not to retaliate.
Flynn was fired by Obama in 2014, and his moves potentially ran afoul of the Logan Act, which makes it a crime for unauthorized Americans to negotiate with a foreign government in a dispute with the United States.
FBI agents interviewed Flynn on Jan. 24, 2017. It was days after Trump’s inauguration, and the FBI was investigating Russian interference in the 2016 election and Russian contacts with Trump’s campaign.
Flynn told the FBI that he did not ask Kislyak to refrain from escalating the situation, which was false. Flynn also said he did not recall Kislyak calling back two days later to tell him that Russia had abided by Flynn’s request.
Flynn also made false statements to the FBI about his lobbying work for Turkey and about another contact with the Russian ambassador over Dec. 22 and Dec. 23, 2016, pertaining to a U.N. Security Council Resolution on Israeli settlements, according to his guilty plea.
What did Trump and Flynn say at the time?
Trump tweeted Dec. 2, 2017: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”
I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!— Donald J. Trump (@realDonaldTrump) December 2, 2017
Flynn agreed to cooperate with special counsel Robert S. Mueller III’s investigation, and Mueller later recommended no jail time for Flynn due to his “substantial” assistance. Flynn sat for at least 19 interviews and gave evidence of Trump’s potential obstruction of justice and about WikiLeaks. He pleaded guilty to a single count of false statements, though prosecutors indicated that they could have charged him with more offenses.
In pleading guilty, Flynn said: “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. 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.”
Prosecutors said FBI agents gave Flynn multiple opportunities to correct his false statements during the interview. Flynn testified in 2018 that he knew it was a crime when he lied to the FBI.
In seeking to void his guilty plea, Flynn now argues that he was entrapped by the FBI and given ineffective counsel by his former attorneys at the firm Covington & Burling.
Trump has said he’s “strongly considering” a pardon for Flynn.
What are the new documents?
In January, Attorney General William P. Barr ordered a review of Flynn’s prosecution and assigned it to Jeffrey B. Jensen, the U.S. attorney for the Eastern District of Missouri. Jensen on April 24 sent a cache of documents to Flynn’s new attorneys, which were later made public.
A Jan. 24 email from [former FBI agent Peter] Strzok to recipients including the FBI general counsel at the time appears to prepare an official identified as “DD” — an abbreviation Strzok often used to refer to former FBI Deputy Director Andrew McCabe — for calling Flynn to arrange the interview and answering questions Flynn might have.Strzok suggests that McCabe be ready if Flynn asked if he were under criminal investigation or began volunteering information, and to consider having an agent present in that event.In a brief email the evening before, [former FBI lawyer Lisa] Page asked Strzok and others to clarify whether FBI policy required agents to inform Flynn that lying to investigators was a crime before they began, or after they believed he made a false statement.A final disclosure includes one page of handwritten notes, dated Jan. 24, that appear to be the writer’s talking points for an internal FBI meeting, advocating that if Flynn lies in the interview, agents should confront him with a redacted piece of evidence so that he will come clean.“I don’t see how getting someone to admit their wrongdoing is going easy on him,” the notes say, adding, “If we’re seen as playing games, WH will be furious.”It is not clear what evidence the writer was referring to. In the interview, the FBI did not show Flynn a transcript of his conversations with Kislyak. Flynn told investigators he assumed they knew what was said on the call.The Justice Department is expected to formally respond to the allegations by May 11, and has not so far retreated from Flynn’s prosecution. Investigators commonly prepare for interviews, including how to handle situations in which the targets lie.
(The “writer” being referenced is E.W. Priestap, the FBI’s former assistant director of counterintelligence.)
“To succeed here, the defense will have to prove not merely that the FBI anticipated that Flynn might lie during the interview, but that the FBI encouraged him to lie and induced him to commit a crime that he otherwise would not have committed,” Robert Mintz, a former federal prosecutor now in private practice, previously told The Post.
What do the prosecutors and judge say?
In a 92-page opinion, U.S. District Judge Emmet G. Sullivan rejected Flynn’s claims “that the FBI conducted an ambush interview for the purpose of trapping him into making false statements and that the government pressured him to enter a guilty plea.” The ruling came in December, before the latest disclosures.
“The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI,” Sullivan wrote. “And it is undisputed that Mr. Flynn not only made those false statements to the FBI agents, but he also made the same false statements to the Vice President and senior White House officials, who, in turn, repeated Mr. Flynn’s false statements to the American people on national television.”
The Justice Department says Flynn and his new lawyers are spreading conspiracy theories in an effort to get him off the hook, “all this despite the fact that the defendant has twice admitted his guilt, before two federal judges.”
“For example, the defendant and his counsel allege that the Special Counsel’s Office manipulated or controlled the press,” prosecutors wrote in an October 2019 filing. “The claim is divorced from facts and reality.”
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