Flynn’s Sweetheart Deal Highlights Barr’s Subversion

When you step back and think about it, even for a moment, it simply boggles the mind to think that Mike Flynn was the National Security Adviser (NSA) for this country for a single day, much less for the nearly four weeks he officially held that job. He was an ethical, legal, and security nightmare and both Obama and Elijah Cummings warned Trump and his transition team about Flynn’s issues. In addition, Chris Christie warned Jared and Ivanka about Flynn and Flynn himself told Don McGahn that he believed he was under investigation over his lobbying activities. And yet he was still appointed National Security Advisor.

Flynn’s issues were multiple and wide ranging. Current Department of Justice opinion states that “the Emoluments Clause prohibits receipt of consulting fees, gifts, travel expenses, honoraria, or salary by all retired military personnel, officer and enlisted, Regular and Reserve, from a foreign government unless Congressional consent is first obtained”. Mike Flynn, as a retired US Army Lieutenant General, was taking money from both Russia, around $45,000, and Turkey, around $530,000, without that required consent. While not a criminal violation, any money received from foreign sources without the appropriate waiver could be clawed back through a reduction in retirement pay.

But that was the least of Flynn’s issues with these payments. The bigger problem was the continually lied about them and omitted them in his SF-86 from in order to get a security clearance. Knowingly concealing such information on that form is a felony punishable by fines and potential five year prison sentence. In addition, Flynn had also omitted work he had done for two companies that were trying to build “proliferation proof” nuclear reactors in the Mideast.

Apparently, these days, or at least under the Trump administration, there is actually no penalty for lying on your SF-86. Instead, the culprit simply files an amended form. But Flynn’s case is far more brazen than the usual simple oversight. He was knowingly attempting to conceal those payments from Russian and Turkey because he knew that he was violating the Foreign Agents Registration Act (FARA) as well as threatening a nearly $600,000 reduction in his pension.

Flynn’s lobbying agreement with Turkey also created another significant legal problem. In September, 2016 and then again in December, 2016, Flynn was involved in meetings where a plans were put together to essentially kidnap the Turkish cleric Fethullah Gulen, who was living in Pennsylvania at the time, and deliver him to Turkey. For this, Flynn was to be paid $15 million by the Turkish government. Those plans never came to fruition but there was certainly a case to be made that these meetings amounted to a conspiracy to kidnap which could have led to fines or a possible prison sentence.

Flynn compounded his problems in this area when he retroactively filed under FARA in March, 2017, after he had already been forced out as NSA. In that filing, Flynn again tried to hide his true relationship with Turkey, which now exposed him to a 5-10 year sentence for that crime.

But Flynn had even bigger problems, as he had also lied to the FBI January 24, 2016 about the substance of his calls to Russian ambassador Kislyak. In one call to Kislyak, on December 21, 2016, Flynn tried to get Russia to veto a UN resolution critical of Israeli settlements. Flynn also discussed sanctions in a December 29, 2016 call to Kislyak where he tried to convince the Russians not to retaliate for sanctions Obama had just imposed on Russia for its hacking of the US election. Flynn lied to the FBI about the substance of both calls, which now exposed him to another five year prison sentence.

In addition, when Sally Yates informed Don McGahn about these Flynn lies, he was so concerned he researched whether these might have been violations of the Logan Act that criminalizes unauthorized citizens from negotiating with other countries in order to undermine US Government policy. Like lying on the SF-86, the Logan Act is another law that apparently never gets prosecuted with only two indictments and no convictions in the 230 years since the law was passed. But it is a felony with fines and an up to three year prison sentence if convicted.

If I have it correctly, then, this was the legal situation facing Flynn when Robert Mueller took over the Russian investigation. Across all his potential violations, he faced over 20 years in prison, a substantial reduction in his pension, and other significant fines. Yes, some of these were “process” crimes and other violations that have rarely been prosecuted. But, guess what, FARA violations used to be in the same category and have only begun to be aggressively prosecuted in the last few years. And it is hardly unusual for prosecutors to charge as much as they can in order to force some kind of plea agreement. That happens to poorer defendants every day and, although it too often appears so, there is no exception for white collar crimes or ones with political overtones.

The point being that Mueller had lots of potential leverage over Flynn. Even better for Mueller, all of these violations with the possible exception of Flynn’s lies on his belated FARA filing were already known. Sally Yates had some sort of SIGINT that proved Flynn was lying about his conversations with Kislyak and the media and Congress had already uncovered his SF-86 violations.

With all this in mind, the reaction when Flynn finally agreed to a plea deal with Mueller in December, 2017 and Mueller recommended a sentence of 0-1 year for lying to the FBI was that Flynn must have provided some incredibly useful information to Mueller. In fact, the judge overseeing the plea deal, Emmet Sullivan, was so outraged at the non-public details of Flynn’s activity provided to him that judge accused Flynn of selling out his country by being “an unregistered agent of a foreign country, while serving as the National Security Advisor”. The judge also pointed out that Flynn could have easily been charged with his partner in the FARA violation case being brought in Virginia where he would face a 5-10 year sentence. And finally, the judge made it clear he was inclined to throw the book at Flynn, despite the Special Counsel’s recommendation and because Flynn himself still seemed to be avoiding taking responsibilities for his actions, and strongly suggested that Flynn might want to delay sentencing. Taken together, the judge’s strong feeling certainly indicated that Flynn had provide Mueller with some very damaging information beyond what was known before Mueller began his probe.

Yet, my close reading of the Mueller report shows very little evidence that Flynn provided anything of substance that wasn’t already known to Mueller when he began his probe. Although Flynn spent a lot of time with the President on the campaign trail, there is little testimony about their interactions. The only piece of evidence in that regard was that Flynn acknowledged that he had contacted Barbara Ledeen and Peter Smith about locating Clinton’s missing emails at the President’s direction and that Smith had communicated with Flynn about such a search. Flynn also apparently confirmed his presence at a November 30, 2016 meeting at Trump Tower with Kushner and Kislyak where the situation in Syria was discussed and Kushner proposed using secure Russian government facilities to communicate with the Kremlin.

Flynn’s information regarding his critical conversations with Kislyak regarding the UN vote and sanctions is not really helpful either. Yates already provided the substance of those conversations. Although the report does not say it directly, it implies that Kushner directed Flynn to make the call regarding the UN resolution. According to Mueller, “Minutes after an early morning phone call with Kushner on December 22, Flynn called Kislyak. According to Flynn, he informed Kislyak about the vote and the Transition Team’s opposition to the resolution, and requested that Russia vote against or delay the resolution”.

Regarding the sanctions call, Mueller provides a description that practically provides no agency to anyone involved. The report states, “He [Flynn] first spoke with Michael Ledeen, a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand…Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, McFarland sent an email to Transition Team members about the sanctions, informing the group that ‘Gen [F]lynn is talking to russian ambassador this evening.’ Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present”. On December 30, the day after Flynn’s call with Kislyak, “Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. The text message and email did not include sanctions as one of the topics discussed with Kislyak. Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy…Flynn recalled discussing the sanctions issue with incoming Administration official Stephen Bannon the next day. Flynn said that Bannon appeared to know about Flynn’s conversations with Kislyak, and he and Bannon agreed that they had ‘stopped the train on Russia’s response’ to the sanctions.101 On January 3, 2017, Flynn saw the President-Elect in person and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling the President-Elect about the substance of his calls with Kislyak”.

That is pretty much the full extent of Flynn’s cooperation reflected in the Mueller report. He implicates no one, with perhaps the exception of McFarland, in these calls with Kislyak. He provides no information on how the decisions were made that directed his calls, other than amorphous references to the transition team. He provides no motivation for his lies to the FBI with the possible exception of his knowledge that he was subverting US policy. The report does not even mention how his lies to the FBI lined up with explanation provided by the White House that the sanctions call was actually a discussion about Syrian peace talks that Turkey and Russia, coincidentally Flynn’s benefactors, were having in Kazakhstan.

That information hardly seems like the kind of cooperation that would prompt Mueller to recommend such a lenient sentence for Flynn. That is especially true when Flynn is probably going to be the star witness in the FARA trial against his former business partner Bijan Kijan in the Flynn Intel Group where he could receive up to ten years in jail. Normally, you would expect Kijan to be the one testifying against Flynn, who is clearly the bigger fish in this case, but it is the exact opposite where it appears Flynn is avoiding accountability and Kijan is taking the fall.

In fact, Flynn’s largest contribution to the redacted Mueller report comes from actions that he reported the Trump team took when he finally began to cooperate with Mueller. Those actions make up one of the obstruction of justice incidents that Mueller intended to recommend to Congress for possible impeachment. But that obstruction information was clearly provided after he had reached an agreement for leniency with Mueller, leniency which is hard to understand based on the redacted evidence provided in the Mueller report.

Now it’s true that we have no idea whether information from Flynn helped spawn those dozen or more still unknow investigations that Mueller has handed off to others. Nor do we know how much of Flynn’s information was subsumed by the counterintelligence investigation, which is currently a black hole to not only the American people but also those in Congress statutorily authorized to be briefed on it. Nor do we know what Attorney General Barr has redacted that may pertain to information provided by Flynn.

What we do know is that the judge in Flynn’s case obviously believes that Mueller has far more information from and about Flynn than is currently in the redacted version of the report put out by Barr. The judge certainly believes that redacted information is important and may be substantial. Accordingly, he has ordered the release of all the redacted material in the current report relating to Flynn as well as the full transcript of Flynn’s sanctions call and the voice mail left by Trump’s personal attorney John Dowd that is a part of the basis for an obstruction charge.  Considering his apparent fury at Flynn’s actions in the earlier sentencing hearing, it is quite possible that the information that the judge is ordering released will be quite damaging, to Flynn if no one else. And the fact that Flynn was applauding attacks on Mueller while he was supposedly cooperating with Mueller will not make the judge any happier with Flynn.

There is another critical point to make regarding Flynn’s calls to Kislyak. Despite being informed that Flynn had lied to the FBI on January 24, 2017, Flynn managed to stay in his position for nearly another month before he was forced to resign, despite a number of senior members of the administration having full knowledge of those lies, not only based on what Yates reported but what they knew themselves firsthand. On February 14, before he met with Comey to ask him to let Flynn go, Trump also asked McFarland to create a memo stating that the President had not instructed Flynn  regarding the sanctions call. In addition, when Trump fired McFarland and then offered her an ambassadorship, he again asked for a witness statement saying he did not instruct Flynn to make the sanctions call. In other words, almost everyone in Trump’s orbit acted as though they were just as guilty as Flynn.

Looking at Mueller’s sentencing recommendation regarding Flynn, there are only three possible conclusions. Either Mueller was entirely duped by Flynn and made an indefensible agreement with him, or the information he got from Flynn was really important but was either taken away from Mueller as part of the counterintelligence or other investigations or that Barr has redacted that information. It appears the judge in Flynn’s case believes that Barr has at least hidden some of that damaging information with his redactions.