The pandemic has changed many things, but it has not changed Michael Flynn’s habit of overhyping claims of FBI entrapment and prosecutorial misconduct.
In recent days, Flynn’s lawyers and the judge overseeing the case have made public internal FBI notes and communications that Flynn claims show that he was “deliberately set up and framed by corrupt agents at the top of the FBI.”
Flynn’s lawyers are putting forward the documents as they seek a dismissal of Flynn’s case, while also asking that he be allowed withdraw his December 2017 plea.
But the way the documents suggest that FBI officials discussed the case and made adjustments to their plans is typical of criminal investigations, former federal prosecutors told TPM, even if seeing these internal discussions put in writing isn’t as common.
More importantly, the documents don’t make the false statements Flynn pleaded guilty to — lying to the FBI about his conversations with then-Russian ambassador Sergey Kislyak — any less false. Nor are they the kinds of documents that prosecutors were legally obligated to produce for Flynn’s lawyers.
They were instead turned over as part of a review of the case ordered by Attorney General Bill Barr. Flynn’s allies have seized on the materials to promote their unsubstantiated claims, which were amplified by President Trump himself. The conspiracy theories may give Trump the cover he wants to pardon Flynn, but, as for the claims Flynn was making in court the about documents, legal experts were less than impressed.
“These Flynn’s lawyers don’t have a legal argument, instead they have a thesaurus,” Patrick Cotter, a defense attorney and former federal prosecutor, told TPM. “It’s just adjectives and adverbs strung together, with the exclamation points implied. It’s ridiculous.”
‘That’s The Law For Everyone’
Some of the notes, which appear to have been taken by then-counterintelligence associate director Bill Priestap, lay out different scenarios for how an interview with Flynn might unfold and whether the agents should confront him directly with evidence he’s lying. The docs also include emails among FBI officials discussing whether to remind Flynn during the interview that lying to the FBI is a crime (the interviewing agents ultimately did not), as well as texts about keeping the Flynn investigation open, after an early January 2017 memo indicated it was being closed.
Though some is redacted, it’s clear from the documents that the FBI agents went into the interview anticipating that Flynn might lie about his Kislyak conversations and that they had information that proved he was lying. But that foresight doesn’t vindicate Flynn of the conduct he pleaded guilty to, former prosecutors said.
“Even if the government knows you’re lying, lying to the government is a crime,” Harry Sandick, a defense attorney who previously worked in the Manhattan U.S. Attorney’s Office, said. False statements, even if the government knows they’re false, are still criminal as long as their material to the investigation.
“That’s not just the law for Michael Flynn, that’s the law for everyone,” Sandick said.
Likewise, the FBI had no legal obligation to remind Flynn that lying to the FBI is a crime, even if for policy reasons agents might choose to issue such warnings in certain situations.
“Someone of Michael Flynn’s stature most certainly knows he can’t lie to the FBI,” Barbara McQuade, a former U.S. attorney who now teaches at the University of Michigan Law School , told TPM.
‘It Doesn’t Have To Be Turned Over’
Flynn’s lawyers said special counsel Robert Mueller’s team committed “malfeasance” for deciding to prosecute Flynn despite being aware of these documents. The defense alleges that the feds “deliberately suppressed this evidence from the inception of this prosecution—knowing there was no crime by Mr. Flynn.”
But nothing in the documents released this week were exculpatory, former prosecutors told TPM, meaning that they do not exonerate Flynn of allegations — which he previously admitted under oath — that he lied to the FBI agents about his Russian contacts.
“If it’s not exculpatory, it doesn’t have to be turned over,” Sandick said.
U.S. District Judge Emmet Sullivan has earned praise, including from Flynn’s legal team, for how he dealt with prosecutorial misconduct in a past case where the government improperly hid evidence from the defendant, former Sen. Ted Stevens (R-AK). But former federal prosecutors were highly skeptical that Sullivan would reach a similar conclusion here, even if his pro-defense tendencies might have him asking prosecutors about the documents that have been made public.
Sullivan rejected Flynn’s previous claims of prosecutorial misconduct after giving them a full public airing.
While the judge’s decision to unseal Priestap’s notes obviously fueled the latest round of anti-FBI allegations in right wing media, he may have also released the notes to show that there was no there there to back the claims Flynn’s team had made in the public filings last week.
“You may read it as ‘well, he was so concerned that wanted the world to see what this was,’ or he wanted the world to see that the statements of the defense team — that this was stunning, that he was framed and set up — were so clearly untrue,” McQuade said.