Media Spin On Michael Flynn

December 24, 2018 – 8:09 am

I’ve been out of the country, and not paying much attention to the news, but I did hear about Michael Flynn’s sentencing hearing last week. And what did I hear? I heard what the mainstream media wanted me to hear: that the judge at the hearing, Emmet Sullivan, had rebuked General Flynn — whom I hold in high regard as an American patriot, and a man of honor — for “treason”.

Just this morning, however, I listened to an interview, by John Batchelor, that told a very different story. Mr. Batchelor was speaking with Michael Ledeen, who was in the courtroom that day. Mr. Ledeen told him that what really happened was this:

General Flynn had come before the court to be sentenced under the terms of his deal with Robert Mueller: he had entered a guilty plea to one count of lying to the FBI. The circumstances of that charge were, to put it as charitably as I can, unusual; General Flynn had been approached by the now-disgraced Peter Strzok and another agent for what had been represented as a clarifying interagency conversation about some matters regarding Turkey, but the FBI was clearly treating it as a perjury trap, with the intention of catching General Flynn in some contradiction regarding a conversation he had had with the Russian ambassador Sergey Kislyak. (The FBI had obtained a wiretap transcript of this conversation.) The trap was successful.

Having set the hook in General Flynn, the Mueller team now set about pressuring and destroying him. His life was made a living hell — and more to the point, his family was made to suffer just as much as he was. For their sake, he decided to take a bullet: he accepted a deal from the Mueller inquisitors to plead guilty on one felony count of lying to the FBI. The judge before whom Flynn entered his plea was Rudolph Contreras, who was also a member of the FISA court that approved the surveillance warrant against Carter Page. Judge Contreras is, as it turns out, a pal of Peter Strzok, and has since recused himself from the Flynn case.

With Judge Contreras out of the picture, the sentencing hearing, after some delay, came before Judge Sullivan. From what Mr. Ledeen tells us, Judge Sullivan is no fan of prosecutorial overreach, and appears to have thought that General Flynn had been railroaded into making his deal.

What happened in the courtroom, then, according to Mr. Ledeen, was that Judge Sullivan offered to let General Flynn renounce his deal, as he was not the judge before whom Flynn had made his plea, and did everything he could to get Flynn to do so. General Flynn had had enough, though, it seems, and just wanted to be sentenced and be done with it. (I also suspect that having agreed to the deal, he might have felt it would be dishonorable to renege.)

This apparently irritated the judge, who it seems is known for a passionate approach to the law (and, know also, sometimes, for intemperate language), and when his attempt to persuade General Flynn to drop the bargain failed, tried another approach: he tried to scare the general into rejecting the plea-bargain by reminding him that it was within the judge’s power to sentence General Flynn as harshly as he liked. Judge Sullivan also added, just to add a little extra fire and brimstone, that some people might think that some of the charges swirling around the Flynn orbit — I assume this has to do with the intrigue that some of General Flynn’s associates have apparently been involved in regarding Turkey — might be regarded by some people as “treasonous”. And this, of course, became the headline that I heard all around: that the judge had accused Michael Flynn of treason.

Listen to Mr. Ledeen’s account here.

Posted by Malcolm on at 8:09 am, filed under Politics. RSS feed for this post. Trackbacks are closed, but you can post a comment.

3 Comments

  1. JK says

    Malcolm,

    There’s alotta stuff gone on that people not keeping track might be “forgiven” being ignorant of. I know ’cause I been wasting terabytes of pixels recently.

    Remember who Strzok’s immediate supervisor was? Who assigned him to do the interview? That’d be this guy:

    https://www.circa.com/story/2017/06/27/nation/did-the-fbi-retaliate-against-michael-flynn-by-launching-russia-probe

    And lately (since about December 5th) in my non-lawyerly way I’ve been trying to inform myself beyond just reading everything I could in the way of transcripts and tweets from people actually in Sullivan’s courtroom.

    Here’s something (longish paste) I posted to somebody else’s blog owing to a particular damn fool … whether he’s wanting to just argue for argument’s sake I don’t know … pain in the ass though.

    This was written by none other than Ruth Bader herself [heavily excerpted but I got the whole shebang I can email if you want]

    ” … Because a false denial fits the unqualified language of 18 U. S. C. § 1001, I concur in the affirmance of Brogan’s conviction. I write separately, however, to call attention to the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes. I note, at the same time, how far removed the “exculpatory no” is from the problems Congress initially sought to address when it proscribed falsehoods designed to elicit a benefit from the Government or to hinder Government operations.

    At the time of Brogan’s offense, § 1001 made it a felony “knowingly and willfully” to make “any false, fictitious or fraudulent statements or representations” in “any matter within the jurisdiction of any department or agency of the United States.” 18 U. S. C. § 1001 (1988 ed.). That encompassing formulation arms Government agents with authority not simply to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government officer could prompt.

    This case is illustrative. Two federal investigators paid an unannounced visit one evening to James Brogan’s home. The investigators already possessed records indicating that Brogan, a union officer, had received cash from a company that employed members of the union Brogan served. (The agents gave no advance warning, one later testified, because they wanted to retain the element of surprise. App. 5.) When the agents asked Brogan whether he had received any money or gifts from the company, Brogan responded “No.” The agents asked no further questions. After Brogan just said “No,” however, the agents told him: (1) the Government had in hand the records indicating that his answer was false; and (2) lying to federal agents in the course of an investigation is a crime. Had counsel appeared on the spot, Brogan likely would have received and followed advice to amend his answer, to say immediately: “Strike that; I plead not guilty.” But no counsel attended the unannounced interview, and Brogan divulged nothing more. Thus, when the interview ended, a federal offense had been completed-even though, for all we can tell, Brogan’s unadorned denial misled no one.

    As these not altogether uncommon episodes show, § 1001 may apply to encounters between agents and their targets “under extremely informal circumstances which do not sufficiently alert the person interviewed to the danger that false statements may lead to a felony conviction.” United States v. Ehrlichman, 379 F. Supp. 291, 292 (DC 1974). Because the questioning occurs in a noncustodial setting, the suspect is not informed of the right to remain silent. Unlike proceedings in which a false statement can be prosecuted as perjury, there may be no oath, no pause to concentrate the speaker’s mind on the importance of his or her answers. As in Brogan’s case, the target may not be informed that a false “No” is a criminal offense until after he speaks.

    It is doubtful Congress intended § 1001 to cast so large a net. First enacted in 1863 as part of the prohibition against filing fraudulent claims with the Government, the false statement statute was originally limited to statements that related to such filings. See Act of Mar. 2, 1863, ch. 67, 12 Stat. 696-697. In 1918, Congress broadened the prohibition to cover other false statements made “for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States.” Act of Oct. 23, 1918, ch. 194, § 35, 40 Stat. 1015-1016. But the statute, we held, remained limited to “cheating the Government out of property or money.” United States v. Cohn, 270 U. S. 339, 346 (1926).

    In sum, an array of recommendations has been made to refine § 1001 to block the statute’s use as a generator of crime while preserving the measure’s important role in protecting the workings of Government. I do not divine from the Legislature’s silence any ratification of the “exculpatory no” doctrine advanced in lower courts. The extensive airing this issue has received, however, may better inform the exercise of Congress’ lawmaking authority.”

    https://supreme.justia.com/cases/federal/us/522/398/#tab-opinion-1960239

    My guess is Judge Sullivan is at least somewhat aware of the caselaw on this sort of stuff – and Congress’ well known habit of abdicating its responsibilities – and he’s not particularly happy at being the tool (probably a screwdriver to his mind) used to fix General Flynn.

    Posted December 24, 2018 at 3:51 pm | Permalink
  2. Malcolm says

    Thanks for that excellent comment, JK. Very helpful.

    Posted December 24, 2018 at 4:32 pm | Permalink
  3. JK says

    From the eleven (11) to the oh, twenty-two (22) minute marks. Something too that might be kept in consideration – Mr. McCarthy whom I admire (and depend on) greatly was, a federal prosecutor who, I’d allow, used with honorable intention, what, Congress had provided.

    https://www.stitcher.com/podcast/the-mccarthy-report/e/57808219?autoplay=true

    Whether Ruth Bader, given her’s above would totally …

    Posted December 24, 2018 at 6:11 pm | Permalink

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