© Chip Somodevilla/Getty ImagesFormer White House National Security Advisor Michael Flynn and his wife Lori Andrade leave the Prettyman Federal Courthouse following a sentencing hearing in U.S. District Court December 18, 2018 in Washington, DC.
It was supposed to be a simple sentencing hearing.
It didn't pan out that way for former National Security Advisor Lt. Gen. Michael T. Flynn and his family, who were seated in the courtroom waiting for Judge Emmet G. Sullivan to enter the chamber.
The courthouse was packed with reporters, supporters, detractors, and lookie-loos who came to see what might transpire. The court bailiff had to open an overflow room after the benches in Flynn's courtroom filled. Despite arriving an hour early, I was in the line that would end up in the overflow room. Also standing in line was Judicial Watch President Tom Fitton and Michael Ledeen, a national security expert and co-author of Flynn's book The Field of Fight. Leeden was there to support his friend and Fitton was there to watch what unexpectedly became the most unusual sentencing hearing any of us have ever witnessed.
I did not get the opportunity to sit in the room with Flynn or his family, so like others in the overflow room, our view was myopic. Each half of the room had a large screen television on a stand. The screen divided Flynn's courtroom into four sections so the audience could simultaneously view Sullivan, Flynn's attorneys, the prosecution and honestly, I can't recall what the fourth screen displayed.
All eyes, however, were on Sullivan's section of the screen when he entered the courtroom. Sullivan began by making it perfectly clear that no one in his entire tenure as a judge had ever pleaded guilty to a crime they didn't commit and "it wasn't going to happen today."
It didn't.
The confusion so many Americans have about the Russia collusion investigation is not due to anyone's lack of intelligence, it's done purposefully. It's the muddy water that every once in awhile releases a shiny glimmer of truth, only to have it sink back again into the swamp with more trash and debris to cover it all up. I've written about this before and I stand by every word.
That was evident when Sullivan, who appeared to be as confused as the American public, went after Flynn. It happened more than thirty minutes into the hearing when Sullivan, who had asked at least 11 times if Flynn wanted to withdraw his guilty plea or seek new counsel said "no." Flynn did this, we assume, on the advice of his counsel Robert Kelner, whose law firm Covington and Burlington represents Flynn.
Sullivan's reasoning for asking Flynn to withdraw the plea was based on information Kelner had disclosed in Flynn's sentencing memorandum. It was vital information that raised red flags for the court about how the FBI possibly mishandled their investigation into Flynn. What the memorandum revealed was that former Deputy Director of the FBI Andrew McCabe had suggested to Flynn during a phone conversation that he didn't need a lawyer present during his initial interview with the bureau. McCabe, at the order of former FBI Director James Comey, sent two agents to interview at the White House without going through the proper channels of contacting the White House General Counsel. Secondly, the witness interviews reveal that the two agents didn't believe Flynn had lied during their interview. Lastly, the agents, along with McCabe, decided to it was better to not tell Flynn it would be a crime to lie to them during the interview.
Comment: In other words, Comey and McCabe set Flynn up.
Memo states: FBI recommended Flynn not have lawyer present, not advised of consequences as per FBI 302 report
Within two hours, the agents were in Flynn's office. According to the 302 report quoted in the Flynn sentencing document, the agents said Flynn was "relaxed and jocular" and offered the agents "a little tour" of his part of the White House.
"The agents did not provide Gen. Flynn with a warning of the penalties for making a false statement under 18 U.S.C. 1001 before, during, or after the interview," the Flynn memo says. According to the 302, before the interview, McCabe and other FBI officials "decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport."
The agents had, of course, seen transcripts of Flynn's wiretapped conversations with Russian then-ambassador Sergey Kislyak. "Before the interview, FBI officials had also decided that if 'Flynn said he did not remember something they knew he said, they would use the exact words Flynn used ... to try to refresh his recollection. If Flynn still would not confirm what he said ... they would not confront him or talk him through it,'" the Flynn memo says, citing the FBI 302.
"One of the agents reported that Gen. Flynn was 'unguarded' during the interview and 'clearly saw the FBI agents as allies,'" the Flynn memo says, again citing the 302.
That is all the sentencing document contains about the interview itself. In a footnote, Flynn's lawyers noted that the government did not object to the quotations from the FBI 302 report.
© Chip Somodevilla/Getty Images
After giving Flynn and his attorney's ample opportunity to change his guilty plea, Sullivan then went on a tirade against Flynn. He accused the three-star general of "treason" and excoriated him for crimes he's never been formally accused of by Special Counsel Robert Mueller's office.
"Arguably, that undermines everything that this flag over here stands for," said Sullivan to Flynn and looking at the flag in the courtroom. "Arguably, you sold your country out."
Shocked. That was the face of everyone in the courtroom. Whispers. Everyone was wondering what was going on - what happened to Sullivan, whose record against prosecutorial misconduct is well documented. He dismissed the ethics conviction of former Alaska Sen. Ted Stevens in 2009 after he discovered government prosecutors withheld exculpatory information and possible ethical misconduct.
Why didn't Flynn withdraw his plea, I wondered? Could it be that he's overwhelmed with debt, his family is exhausted of the whole situation or did Mueller's office threaten to go after his son for something we have yet to discover. Maybe, all of the above.
© National Law JournalJudge Emmet Sullivan
Flynn's more relaxed demeanor at the beginning of the trial was now gone. He seemed stoic, upset and his body language reflected that fact. Sullivan then announced a 25 minute break to let Flynn discuss the matter with his attorneys. Flynn accepted the postponement of his sentencing.
When the break ended Kelner told Sullivan that they would accept the postponement. Sullivan then walked back all the inaccurate statements that Flynn was a traitor, along with the faulty statement that Flynn served as an unregistered foreign agent for Turkey, while he was at the White House.
Sullivan's confusion, however, was one many people shared. I heard it in line at the courthouse with regard to the issue of Turkey. One man said Flynn "cut deals with the Russians and the Turks." He was "working for the Russians," said another man in the line. Others defended Flynn, "he's an American hero, the deep state is after him." Of course, none of those people know Flynn and their judgments are based on stories they have heard or read.
Why all the confusion on Tuesday? Well, some of it started with news that broke the day before Flynn's sentencing hearing. Mueller's team had unsealed an indictment against Flynn's former business partner Bijan Kian, and Turkish businessman Ekim Alptekin, indicting them on conspiracy for violating the Foreign Agents Registration Act. Alptekin was also charged with lying to investigators.
Flynn. however, is a cooperating witness against Kian and Alptekin for Mueller's office, as stated by prosecutors. He has already given 19 interviews with the Special Counsel, and even Mueller himself has requested leniency - no jail time - in Flynn's sentencing because of his "substantial cooperation."
Unsealing the indictments against Flynn's former partners a day before Flynn's sentencing hearing muddied the water. It roped in Flynn, who despite cooperating with the Special Counsel, was now tainted by another mess.
Further, despite the new information revealed in the sentencing memorandum, his counsel did not advise Flynn to withdraw the guilty plea.
Instead Kelner tried to explain to Sullivan why they included the information in the memorandum saying, "the principal reason we raised these points in the brief was to attempt to distinguish the two cases in which the special counsel's investigation has resulted in incarceration, the (George) Papadopoulos and (Alexander) Van der Zwaan cases..."
Kelner added "but Gen. Flynn has been, I think, clear from the beginning and will be clear again that he fully accepts responsibility, stands by his guilty plea, which was made based on knowing and willful conduct."
This did not bode well with Sullivan who was probably wondering, like the rest of us, why did Kelner disclose all this information if he wasn't gong to do anything with it. And for that matter, did Flynn plead guilty to a crime he didn't commit.
What is the real crime
Flynn's case wasn't about collusion with Russia or his work for Turkey.
But it did start with a felony. Not a felony committed by Flynn but one committed by a senior U.S. Obama official who disclosed to the public a Foreign Intelligence Surveillance Act warrant on then Russian Ambassador to the U.S. Sergei Kislyak and his private phone calls with Flynn in December, 2016.
The second felony committed by this former senior government official was unmasking Flynn's name in the media reports.
Comment:
- Samantha Power emerges as central figure in House investigation over "unmasking" leaks to press
- Behind closed doors, intel officials are for shutting out Brennan and Clapper
As the Obama team left office, it spread intelligence products regarding the Trump administration's alleged ties to Russia to ensure that reports proliferated throughout the government. Multiplying the number of potential media sources increased the likelihood that intelligence would be leaked to the press.
At the time, Flynn was already appointed by then President-elect Trump. He no longer had ties to his Flynn Intel Group, and he was not operating as a private citizen against the Obama administration. He has been smeared by false allegations by unnamed former senior Obama officials who would like the American public to believe their lies.
It began with a column by the Washington Post's David Ignatius. Ignatius, probably from an FBI-orchestrated leak, revealed the highly classified information in his column on Jan.12, 2017. It was attributed to a senior Obama administration official who had direct access to the highly-classified transcripts of the conversation between the two men.
From Ignatius's column:
According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about "disputes" with the United States. Was its spirit violated? The Trump campaign didn't immediately respond to a request for comment.That same week, Jake Tapper with CNN also published a report attributed to multiple former senior Obama administration officials that President-elect Trump was briefed on the most salacious parts of former British Spy Christopher Steele's unverified dossier. It was the first time the dossier was given any credibility.
This week, however, nearly a year later, Yahoo New's national security reporter Michael Isakoff, who first reported on the contents of the dossier admitted, that "there's good grounds to think that some of the more sensational allegations will never be proven and are likely false."
Back in early 2017, the media was hot on Russia Trump collusion stories that now have proven to be either unsubstantiated or outright lies. Flynn was swept up into the mess and purposefully handed up on a silver platter to the media and the FBI by a senior Obama administration official and Sally Yates who personally went to the White House - armed with an FBI report (302) on January 26 to demand Flynn's termination.
So what happened to the leaker? Former Attorney General Jeff Session's said last year that the DOJ was actively investigating 27 classified leaks to the media. Still, there has been no confirmation that this crime is being investigated.
Flynn's story is tragic.
Whether Flynn decides to seek new counsel based on the fiasco at the courthouse Tuesday or replace his attorney's is not known. Many of his friends, legal analysts and other law enforcement officials I've spoken to over the past 24 hours say now is the time for the former warfighter to put on his battle gear, fight back and set the record straight.
No one is sure what the embattled general will do.
But one thing is certain, what happened to Flynn is bigger than Flynn. The events that led up to Flynn's conviction and guilty plea should concern all Americans who value the foundation that established our nation's system of justice - whether we still believe in equal justice for all. There is no semblance of it now.
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