Mike Flynn Steps in It: In a Bid to Feed the Frothy Right, He Leads to Release of Damning New Details Showing He Lied to Protect Trump

Last week, I suggested that Mike Flynn’s cute trick of publicly releasing information from Andy McCabe’s memo and Peter Strzok’s 302 might backfire.

He cited a memo that fired FBI Deputy Director Andrew McCabe wrote the day of Flynn’s interview and the interview report (called a “302”) that fired FBI Special Agent Peter Strzok had a hand in writing up in August 2017, some seven months after the interview.

In response, the judge in his case, Emmet Sullivan, issued an order asking not just for those two documents, but any documents related to the matters Flynn writes up, to be filed by tomorrow, along with the government’s reply to his memorandum.

And so it is that on the one year anniversary of the order Sullivan issued to ensure that Flynn got any exculpatory information relating to his plea, that the hopes among the frothy right that Flynn’s prosecution (including for lying about his sleazy influence peddling with Turkey) will be delegitimized and with it everything that happened subsequent to Flynn’s plea might be answered.

Or maybe not.

[snip]

DOJ has never had the opportunity to write its own explanation for what happened with Flynn’s interview. By inviting a reply specifically in the context of this Flynn claim, Sullivan has given DOJ the opportunity to do just that, finally.

[snip]

Sullivan’s order may result in documentation that reveals just how shoddy all the claims irregularity surrounding Flynn’s interview have been all this time.

Boy oh boy was I right.

In response to Judge Sullivan’s order, the government filed Flynn’s 302 under seal. After Sullivan reviewed it, he deemed it pertinent to Flynn’s sentencing, and had the government release a redacted version.

And it is unbelievably damning, in part because it shows the degree to which Flynn’s lies served to protect Trump.

The 302 shows how the FBI Agents first let Flynn offer up his explanation for his conversation with Kislyak. He lied about the purpose for his call to Kislyak on December 29 (he said he had called to offer condolences about the assassination of Russia’s Ambassador to Turkey) and he lied about the purpose of his call about Israel (he claimed he was, in part, doing a battle drill “to see who the administration could reach in a crisis” and in the process tried to find out how countries were voting on the Israeli motion; Flynn denied he had asked for any specific action).

Then, after the Agents specifically asked whether he recalled any conversation about the Obama actions, Flynn doubled down and claimed he did not know about those actions because he was in Dominican Republic.

He was hiding two things with this claim: first, I believe Susan Rice had given the Trump Administration a heads up on what Obama was going to do (at the very least the Obama Admin had asked the transition not to send mixed messages, and at least one person on the transition says they agreed not to). More importantly, he was hiding that he had already talked about the actions with KT McFarland, who was at Mar-a-Lago relaying orders from Trump.

And Flynn again denied having had a heads up from Susan Rice when he claimed he didn’t know that Russia’s diplomats were being expelled.

Finally, Flynn offered an excuse that is at least partly bullshit for why he called Kislyak multiple times.

The reason he kept calling Kislyak was, at least in part, because he was coordinating with Trump at Mar-a-Lago. His earlier claim that he didn’t respond to Kislyak is also probably a lie; he delayed his response to contact Mar-a-Lago first.

Sullivan said this 302 is relevant to Flynn’ sentencing, so he may actually use it to justify ignoring the joint requests of Flynn and Mueller for no jail time (though I’m not betting on it).

But by giving DOJ the opportunity to present this 302 for publication, Flynn provided proof of what has been hidden all this time — why Trump responded to the way he did about this investigation.

Flynn lied to hide Trump’s involvement in all this (and, to an extent, the degree to which it involved specifically ignoring a heads up from Obama).

Flynn lied to hide Trump’s personal involvement in telling the Russians to hold off on responding to Obama’s sanctions. And when the FBI investigated those lies, Trump fired the FBI Director to try to end that investigation.

Update: Jeebus. This 302 also reveals that he was quoting directly from the instructions KT McFarland had given him, relaying Trump’s orders. Here’s what McFarland said she had told Flynn, in an email shared with multiple transition officials.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

And here’s what — quoting from the transcript of his calls with Kislyak — the Agents asked him if he said.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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91 replies
  1. Peterr says:

    Sullivan said this 302 is relevant to Flynn’ sentencing, so he may actually use it to justify ignoring the joint requests of Flynn and Mueller for no jail time (though I’m not betting on it).

    I wouldn’t bet on it, but I wouldn’t be at all surprised if Sullivan used it to up the sentence. Given how Sullivan ripped the prosecutors in the Ted Stevens case apart for failing their obligations as legal officers, I could easily see him doing the same with a 3 star general/intelligence official who pisses all over the intelligence community by lying to the FBI about cavorting with the Russians.

    • Frank Probst says:

      Didn’t the Mueller team’s very last filing (the one calling bullshit on Flynn’s lawyer’s statements in court) go from something like “zero prison time” to  something like “at the lower end of the guideline”?  It was clear the prosecutors were not amused.  This is a no-nonsense judge, and Flynn’s team has just wasted a lot of people’s time with this little stunt.  The prosecutors have gone out of their way to keep him from looking bad, and his lawyers tried to take advantage of that fact, and then they STILL tried to keep Flynn from looking bad by filing this document under seal.  I wouldn’t bet on prison time, but I wouldn’t bet against it, either.

    • Frank Probst says:

      Ah, I think this is it.  The conclusion of the 12/14/17 Mueller memo:

      “The seriousness of the defendant’s offense cannot be called into question, and the Court should reject his attempt to minimize it.  While the circumstances of the interview do not present mitigating considerations, assuming the defendant continues to accept responsibility for his actions, his cooperation and military service continue to justify a sentence at the low end of the guideline range.”

  2. Michael says:

    I believe the new dumb claim from the frothy right will be that the heads-up from Susan Rice was party of the DOJ entrapment scheme!

  3. Avattoir says:

    In next week’s SNL, Alex Moffat appears with a bandaged head from Eric having transferred brains with Michael Flynn,

    He will act and sound exactly the same.

    Then FoxNews Sunday will interview the Flynn legal team, seen here deeply engrossed in a strategy session:
    https://tinyurl.com/y9sgz46g

  4. pseudonymous in nc says:

    The SCO’s response to Flynn’s sentencing memo told us that the agents used language from a transcript of the intercepts in their questioning: combine that with the 302, and you get a very clear sense of what the intercepts contained, and why Sally Yates in particular lost her shit. She thought that Flynn was deceiving the White House, when in fact they knew he was lying and were all in on the lies.

    • Eureka says:

      It’s like the conspirators are launching gaffes out of one of those cash-blowing booths, and Marcy is catching every last one.  Every last one, with a quick grasp.

    • Peterr says:

      Flynn believes he is the smartest person in whatever room he’s in.

      Obviously, he is wrong.

      (Trump suffers from the same delusion, and is waking up to the reality that he is wrong, too.)

      • P J Evans says:

        The difference being that Flynn actually is fairly bright, and Himself…I’ve met smarter three-year-olds, and some of the people at my high school really were geniuses. (There is, as it happens, a website where you can use total SAT scores to estimate IQ. I don’t know how accurate the estimates are – but I don’t think they’re far off. It would be interesting to see what the scores were for Flynn and for Himself.)

  5. threejane says:

    I interpreted the “tit-for-tat” reference in the 302 as coming from the interviewing agents – that is, the FBI was referencing McFarland’s phrasing, not Flynn

  6. pseudonymous in nc says:

    “…where KISLYAK said the Government of Russia had responded, or chosen to modulate their response, in any way to the US’s actions as a result of a request by the incoming administration.”

    The guilty plea from over a year ago said “moderate”, but moderate / modulate is a common enough mishearing or miscomprehension.

  7. Eureka says:

    Beyond the more-to-come from Flynn’s cooperation, this has me wondering what other bounties await from the unintended consequences of Trump et al.’s comfort wheeling and dealing at Mar-a-Lago (and yeah I know there are also plenty of downsides to same, beyond foreign government intercepts OF same).

  8. RLHall says:

    By all means, read the NY Times article from last December which Marcy references in her addendum. It fills in a lot of background, and the quote about the Russians “throwing the election” is amazing!

  9. Pete says:

    While I do not think it does, I figured I had to ask: Does any of this tippy toe up to Article 3 Section 3 of the Constitution?

    “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

    • timbo says:

      Probably not under the Article directly—Russia is not officially an enemy of the United States?

      However, it’s entirely possible that there is someone who was an active spy in the mix here somewhere; plenty of folks here who appear to have been on the take, who might have been cajoled into providing espionage or supporting it in some material way.  Compromised, blackmailed, plenty of chances for that one any one got in too deep.  That’s one reason this investigation has got legs—there’s smoke here for that here.

  10. P J Evans says:

    All of the Russia stuff feels like it’s tiptoeing up to the edge of that article, and daring Madison et al to call it treason. (IANAL, though, and the one I can get hold of easily isn’t in this field.)

  11. AndTheSlithyToves says:

    Perhaps nothing about this is as it appears. On the surface, Flynn’s request looks like a ham-handed attempt to get the “frothy right” in a dither over the “unfairness” of his case, and distract from the fact that the SCO is publicly kissing his ring. As you point out, Flynn has presented an opportunity to the SCO to publicly expose the most damning details yet about who was really running ConFraudUS.

  12. Hika says:

    [Replying to President Pelosi’s reply to Peter J Crowley (having some browser issues):]
    What didn’t Mike Pence know? And when did he not know it?

  13. chuck says:

    Next conspiracy for the frothy right is going to involve how Democrats must have bussed in illegals to vote in Republican primaries in order to entrap the GOP with Trump.

  14. Hahnizona says:

    The smoking gun has finally been found with all of Trumps prints on it!!

    Great work, Marcy. I’ve enjoyed reading your posts and the posts of your regular commenters for at least a year or more. You are all way brighter than me, but I keep reading regularly anyway.

  15. earlofhuntingdon says:

    Trump will never wake up to the fact that he’s one of the dumbest people in any room he walks into. Flynn, OTOH, has probably wrestled a lot lately with not being the smartest guy in the room, and with not being able to intimidate or manipulate the people he does meet.

    As for Flynn’s flag rank and long record of military service, I would say he pissed that out the window when he turned politician-bidnessman and chose to become a lackey to a figure like Donald Trump.

    Prosecutors and the judge will be wrestling with contradictory aims tonight: On the one hand, they want to reward a witness for turning on higher and politically powerful criminals in his orbit. They want to persuade him to remain cooperative should trials be held, and to encourage others to do as Flynn has.

    On the other hand, they want to punish a figure who leaped into high crimes and misdemeanors, knowingly discarding his privileges and his past in order to achieve rapid wealth and power by following a figure like Trump. Few people like that go to prison. Many should.

    • Vern says:

      As for Flynn’s flag rank and long record of military service, I would say he pissed that out the window when he turned politician-bidnessman and chose to become a lackey to a figure like Donald Trump.

      It’s referred to as “selling your stars”.

    • Trip says:

      Before then @earl. He wanted to dictate policy and politics under Obama. Whatever kudos he received before went to his big fat head, where he knew better than anyone else, (by following infowars and listening to his horrible son). That’s why he was shit-canned to begin with. “Flynn facts”. Too big for his own damn britches, which seems to be carrying on to this day. His greed clearly played a role too, as you mentioned.

      **reply worked.

    • Fran of the North says:

      A JAG would be much better able to comment on this, but Flynn may also be prosecuted under Section 133 of the Uniform Code of Military Justice, Conduct Unbecoming an Officer. Violation is subject to Courts Martial.

      Courts Martial would probably be a much more effective punishment, as it is stripping him of his rank, and potentially his retirement pay.

      Any lawyers here have an opinion on whether Courts Martial for this behavior would be double jeopardy?

      • Alan says:

        Would there need to be a Court Martial? He’s already admitted to the crime, so it would seem like the Army could simply take administrative action, although someone would have to take the initiative to do that and it would probably be a career killer, so I doubt it would happen.

      • Peterr says:

        IANAL, military or otherwise, but stripping a military officer of his/her rank and cutting his/her pension is not something over which the civil courts have jurisdiction. The only judicial system that can do that is the military — thus, there would be no double jeopardy.

  16. readerOfTeaLeaves says:

    Flynn lied to hide Trump’s personal involvement in telling the Russians to hold off on responding to Obama’s sanctions. And when the FBI investigated those lies, Trump fired the FBI Director to try to end that investigation.

    Of all the dumbfounding, stupefying things that I have read at EW’s through the years, this one just may take the cake.

    IIRC, in addition to firing Comey, Trump fired McCabe and Strzok because they were the FBI agents who’d interviewed Flynn. Tony [‘Art of the Deal’] Schwartz says that exacting revenge is Trump’s primary characteristic; his firing of FBI agents lends support to that view.

    In addition to Flynn being a conduit between Trump and Russia, there was other activity afoot in the world: Erik Prince also happened to run into Russians. In the Seychelles. Prolly not coinkydink.

    If this were fiction, it would feel like a preposterously bad tale: one that stretches credulity too far to be believed. And yet, here we are.

    Sunlight!

  17. Paul says:

    Don’t we also know, from the McFarland emails and the later reporting around them, that at least Priebus and Spicer were copied in on her updates?

    If so, they each knew as at the end of December 2016 that Flynn had discussed sanctions with Kislyak and discouraged “tit for tat”.

    Both were later interviewed by the SCO. I wonder if they told the truth, then or later. If so, are they the cooperating witnesses mentioned in the SCO sentencing submissions on Pence, in the last few lines?

  18. e.a.f. says:

    On a Monday night, on Pacific Standard time waiting to see what happens to Flynn tomorrow.  Being Canadian, don’t know much about the judge except what I’ve read here, but if he is no nonsense he might send him to jail.   It will remind people even if you make Mueller happy, a Judge could still send you to jail.  Nice message.  Between this and what I saw on t.v. it is truly amazing what a stupid bunch of people the Trump organization has/had.   Did they really think they were going to get away with it all?   Perhaps given Trump’s sense of superiority and his skating on thin ice for most of his life.   How these people betrayed their country is beyond  me, but as they say, money talks…………

    The U.S.A. was supposed to be the “greatest democracy” in the world.  Looks more like a “shit hole” country to me.

    • Greenhouse says:

      Everybody’s ass is up for grabs in a game of thrones, including your beloved, craven-worthy Harper, Mr. Canadian.

  19. Mark says:

    Well, one thing is sure, his excuse for calling his russian “counterpart” is sort of weak when the call was to an ambassador when he was director of National Intelligence.  The two posts are NOTHING like each other, almost the direct opposites.

  20. JKSF says:

    So, this puts a little more flesh on the bones. It never made any sense that Trump was not directing Flynn. Flynn would not take it on his own initiative to talk to Kislyak. The question is Pence.

    Let’s set the stage. Beginning of January 2017. Trump has had Flynn assure Kislyak that the sanctions will soon be lifted, no need for any “tit for tat.” Trump thinks he has everything under control. He is about to become President and appoint a new Attorney General who will do his bidding, be his Roy Cohn. In his mind at least, he had received decisive “help” from FBI Director Comey in the final days of the campaign. He believes Comey is his guy. On January 6, 2017 Comey briefs Trump on the sex stuff in the dossier and tells him that he is not under active investigation. Trump tells Comey he was “grateful for the conversation,” and that he wants him to stay on in his position as head of the FBI. At this point, Trump views Comey as a loyal soldier.

    On January 12 the news breaks that Flynn and Kislyak talked on December 29, 2016.

    What happens next? We don’t know whether Pence was in on the Trump/Flynn/Kislyak conspiracy, so let’s first assume the less likely possibility that he wasn’t. In this case, Trump tells Spicer that it didn’t happen, and to go out and deny, deny, deny to the media. It is not even clear that Trump would have brought Pence or Flynn into the picture at this point. On January 13 Spicer tells the media that sanctions were not discussed. Note that this is before Flynn supposedly lies to Pence! It may be that the thing that started the entire ball rolling was simply Trump telling Spicer to push the denial out. Anyway, at some point, either before or after Spicer’s conference call with the press, Trump also tells Pence it didn’t happen, deny, deny, deny. Then, according to the official timeline, on the 14th, Flynn tells Pence, the big lie, that sanctions were not discussed. On the 15th Pence and Priebus go on the Sunday programs and says sanctions were not discussed.

    Second possibility, Pence was in on the conspiracy. In this case after the January 12th news report, Trump and Pence coordinate their story that it didn’t happen, and Spicer is told go out and deny, deny, deny to the media on the 13th. Pence does the Sunday morning circuit on the 15th.

    In both cases it is interesting to speculate that the supposed call with Flynn on the 14th may not have happened. It is quite possible that Flynn was not brought into the cover-up until after Pence is on record as saying that sanctions were not discussed.

    On the 19th, Obama’s last day in office,  Yates and Brennan want to brief the Trump administration on Flynn’s conversations with Kislyak, which had been intercepted by U.S. intelligence. “Yates and Brennan reportedly deferred to then-FBI Director James Comey, who feared such a disclosure could interfere with an ongoing investigation.”

    The news breaks on the 22nd that Flynn is under investigation by the FBI for communications with Russians. Now, Flynn certainly does speak with Spicer and says sanctions were not discussed. Also, on the same day Trump has the infamous oval office meeting with Comey where he hugs him saying: “Oh, and there’s Jim. He’s become more famous than me.” Trump clearly at this point still thinks Comey is in the bag.

    Spicer reiterates the “no sanctions discussed” line at a press briefing on the 23rd.

    On the 24th McCabe sends Strzok and the other FBI agent to interview Flynn. Flynn lies to the FBI. Curiously, Flynn is reported to have known that a transcript of his Kislyak phone conversation existed prior to the interview, but he lied anyway. One can only imagine that Flynn was under the impression that the fix was in. Who knows what Trump told him.

    On the 26th Comey relents and Yates informs McGahn of the intercepts showing Flynn’s lies. On the 27th Trump has dinner with Comey and asks for his loyalty.

    For the next two weeks Flynn continues to deny sanctions were discussed, while more stories break to the contrary, and on Feb 13th Kellyanne Conway says Flynn mislead Pence about the phone call. That evening Flynn resigns saying: “Unfortunately, because of the fast pace of events, I inadvertently briefed the vice president-elect and others with incomplete information regarding my phone calls with the Russian ambassador.” This sounds like Flynn was not fully on board with the role of soldier falling on his sword.

    So, in a nutshell. Trump tells Flynn to assure Kislyak about the sanctions. The story pops. Trump tells everyone to deny it. They do. Trump thinks the fix is in with Comey. The intercept makes it impossible to contain, so someone has to go down for it. Flynn has no choice, but to take the fall. Further, the story has to be that Flynn lied to Pence, because otherwise it would implicate Trump.

    Anyway, we now know Trump is implicated, so what does that mean about Pence? Are we to believe at this point that Pence was entirely out of the loop until he gets a phone call from Flynn on January 13th where Flynn tells him don’t worry, despite reports in the news, he didn’t discuss sanctions, so go on TV and tell this to the world. Does that make any sense at all?

    I’ve never believed that Pence did not know. Whether or not he knew in December, at least when he went on TV on the 15th, he was lying. The question now would be how much has Flynn revealed to Mueller? Is he sticking to the:”I lied to Pence,” story line or has he come clean? If he is not telling the truth to Mueller now, his plea would certainly be in jeopardy.

    One final thing. It is very interesting to note that Comey prevailed over Yates and Brennan in holding off informing Team Trump about the intercepts until after the FBI had Flynn’s testimony.

  21. Terry Ott says:

    Some things that puzzle me;  maybe someone better informed can clarify and help me understand:

    (1) Inasmuch as the FBI had recorded Flynn/Kislyak phone calls, what was their reason for wanting an “informal” discussion (i.e., supposedly the FBI positioned it as just wanting to chat without legal counsel) with Flynn about that dialog?  Was it to see if Flynn might spill the beans, perhaps inadvertently, about who else was in the loop regarding any discussion of sanctions?  Or for some other reason that is escaping me.

    (2) It seems likely that Flynn knew he’d been recorded, right?  Or if he didn’t “know” that, he would likely have assumed that, given his intelligence background and knowledge of the inner workings thereof. So, why would he not have said to the investigators: “You just need to listen to your recording(s), and not rely on my imperfect recollections about who said what from a time when I was on the beach, vacationing and drinking adult beverages.” Maybe he DIDN’T know or assume the FBI was listening in, and decided to roll the dice?  What are we to make of this?

    (3) What are we to make of the apparent opinions of the FBI interviewers that Flynn was not lying and perhaps just having trouble remembering? …. Compared to Comey’s declaration later on that there was no doubt he was lying?  I know he pleaded guilty, but don’t people sometimes do that in a calculated way in order to get out from under a burdensome situation — legal fees, ongoing public speculation, hoping to get a light slap on the wrist, etc.?

    (4) In his role as the incoming National security poobah, would it not be okay for him to discuss (albeit cautiously) almost anything with the Russian ambassador, someone he surely would know and with whom he would have future dealings?

    I wish I’d had the time to parse all of this back-and-forth; just trying to make sense of it and the commenters here are obviously and impressively more tuned in than I am.  Disclaimer (or is it a “confession”): I don’t particularly like or respect James Comey, so I’m not able to reject out of hand the idea that he’s not to be trusted completely.  And he sure does seem to have trouble remembering things that would seem to have been pretty important.

    Thanks for letting me know any thoughts you have.

    • earlofhuntingdon says:

      Flynn was a former three-star general and NSA-designate, with decades of work in intelligence and covert ops.  His background meant that he probably knew as much or more as the average FBI field agent about what the FBI’s role was, that any questioning of him was investigatory, and that any answers he gave would likely be material.  It would have been a surprise if Flynn had showed obvious signs of deceit in a low-pressure interview by the FBI.

      The argument that Flynn was not adequately informed is obviously false.  It was probably chosen as focus-grouped bit of propaganda for the base.

      Investigators often conduct principal interviews late in their investigation, when they have as much information about the interviewee or target as possible.  They have evidence from other sources, which the interviewee’s responses can either support or contradict.  Telling investigators “to listen to the tapes” instead of answering a direct question is defensive non-cooperation.  Coming from senior administration official, it would raise a lot of suspicion.  Flynn might as well have worn a sign that said, “Kick me.”

      After Trump and Flynn took office, Flynn could have had whatever conversations with Kislyak he wanted that were consistent with his duty to his government and were agreed with the president.  Before that, he is bound to the policies of the administration still in power.  That means that conversations with foreigners are normally limited to introductory and non-substantive issues.

      The bigger problem for Flynn and Trump is the reason they were changing policy toward Russia: It was to make their private businesses more profitable, regardless of the impact on US national interests or national security.

      In Trump’s case, he probably also had a motive to avoid the Russians withdrawing their lucrative propping up of his businesses.  That legitimately puts Congress’s investigation into Trump’s business and personal tax returns front and center.

  22. Rusharuse says:

    So, Comey, McCabe, Strozak, Yates and others knew all this but kept their mouths shut to protect the investigation, all “taking one for the team” as Trump and his scum trashed their reputations and lives. I think that’s admirable!

  23. viget says:

    The fact that the classification markings are redacted makes me think that the 302 was at one point classified. Yet I don’t see any official declassification markings. Who would have authorized its declassification? Certainly not Trump or any of his lackeys at DOJ. The judge can’t release classified material, can he?

    Also, there’s got to be more going on here than just sanctions talk. Some of this 302 is still redacted, what else did Flynn discuss with Kislyak that would be so damaging to his reputation if it got out?

    • Alan says:

      It would be possible to write a legal memo on this topic, complete with citations to the relevant authorities, but the gist of it is: The judge interprets the law, and if he orders the document to be released, then either the document has to be released or one or both parties have to appeal.  The judge is immune from criminal and civil liability for actions taken in good faith in the performance of his judicial duties. If anyone thought the order to release the info was unlawful, their sole remedy would be to appeal (or refuse to release it, be held in contempt of court, and then either appeal, with the possibility of being liable for contempt). If the party subject to an order releases the information pursuant to the court order, they are also immune from criminal and civil liability for that act, since they are obligated to follow the court order.

      That could in fact be the reason why it took so long for us to see this memo–the DOJ/FBI refused to declassify it, so the Special Counsel was not able to release it until ordered to do so by the court.

      • bmaz says:

        I am not sure they were necessarily classified as opposed to just being protected information that is not public. But they were given to Flynn long ago, the only question was whether it would be made public. Well, actually there is also the question of what Flynn thought would be accomplished by doing so.

        • Peterr says:

          Given what wasn’t redacted, and the general subjects, I’d say it’s fairly certain that this was a classified document and not just protected from publication.

          You don’t just toss around information about private meetings and conversations between the NSA-designate, the Russian ambassador, and others. You just don’t. Witness how Flynn’s mention of  Sergun’s death in Lebanon brought out a fast and panicked denial from Russia who claims he died in Russia of a heart attack. Also, the redactions of the names of countries in the discussion about the UN and resolution on Israeli settlements are EXACTLY the kinds of statements that would be classified.

  24. Calvin says:

    The well-known rule in the lobbying game and related endeavors in this town is: “when you’ve got the vote, shut your mouth.” That is, when you have achieved your objective of convincing some one of your position, don’t continue spouting off all the additional reasons why the result is the correct one. It can only backfire. Flynn’s bleating, gild-the-lily response to the sentencing recommendation is a textbook example.

  25. DMM says:

    So it turns out what we all knew to be the case anyway is true — that Flynn was doing exactly what Trump wanted him to do.

    But why lie about it? The stupidity of doing so is just staggering. Did they really believe that DOJ would try to apply the Logan Act here to the President-elect? Historically several President-elects (presidents-elect??) have sent a “be cool and we’ll talk later” message to adversarial powers. The Logan Act isn’t even mentioned in any of the documents pertaining to Flynn — not the Flynn indictments, the sentencing memo, or this 302 — so it seems a reasonable assumption that Mueller doesn’t think it would be applicable or stand. Not even for securing the UN vote on behalf of Israel, which is as clear and textbook a violation of the Act as I recall having heard of.

  26. Alan says:

    @Terry Ott: I think #2 is incorrect–I think Flynn didn’t realize that his conversations had been captured, or if they had, that he would face any liability for lying. I think he thought that since he was the designated NSA working directly for the President-elect, he could say anything without facing liability and that this was mostly a political issue that he was responding to, not a criminal inquiry.

  27. Trip says:

    @ Terry Ott says:
    December 18, 2018 at 2:53 am

    First, here’s a good place for background: https://www.emptywheel.net/

    Secondly, why are you assessing the Flynn interview in a vacuum? The intelligence agencies had determined that the breach of the DNC system and Podesta emails was conducted by the Kremlin. During the campaign Trump asked Russia for emails. Flynn chanted “Lock her up” in response to emails. He visited with Putin in Moscow. It’s not like the guy, the head of national security, would be completely oblivious to the implications of Feds asking questions about his interactions, seeking no retribution from Russian, after the sitting president imposed sanctions for the cyber attack. If you can’t remember something critical like calling an agent of the state that hacked your political opponents, then you don’t belong in that position. The FBI agents gave him ample opportunities to come clean by basically tipping him off to the conversation. If his brain was that addled from alcohol that he forgot the conversation, JFC, he should have known it wasn’t a good time to make calls, and again, that would be disqualifying for the position.

    Further, the agents noted he wasn’t stressed during questioning and showed no obvious body language signs, known to them, of lying. Pretending to be befuddled or having a questionable recall is disingenuous when the news of the day has been consistent coverage of Russian hacking, FFS. These were not questions out of left field that no one could see coming.

    It really doesn’t matter one way or the other whether you like Comey.

  28. Jan Marra says:

    I think Mike Flynn would much prefer doing a few years in a nice, remote, secure Federal prison where he can sit and sort his head and try to figure out How It All Went Down(hill)–that is, without looking over his shoulder for a bulky Russian bearing a nerve agent.

  29. chromiumbook0000 says:

    Slightly off topic (and apologies if already covered) – Is the general thought/consensus that the SDNY’s criminal investigation of the inaugural committee is likely the same “criminal investigation” to which Flynn was referenced as having provided help? Given the Flynn-Nader-Broidy wooing of Saudi, UAE folks (ie Seychelles, etc), it seems like Flynn would certainly fit in that investigation.

  30. Trip says:

    Trump’s ‘good luck’ tweet to Flynn shows someone is feeding him secrets from Mueller probe: Legal expert

    (at end of article)…National security journalist Marcy Wheeler said the president’s tweet could come back to haunt Flynn as he hopes to avoid prison.

    “Flynn’s got ground to make up on showing remorse,” she tweeted. “Now Trump is pressuring him not to.”

    https://www.rawstory.com/2018/12/trumps-good-luck-tweet-flynn-shows-someone-feeding-secrets-mueller-probe-legal-expert/

    Aside: I noticed the comment block is upside down today. The login is on top of the comment versus below it, where it usually is. Are these changes, or is it only happening on my end? I feel disoriented.

    • viget says:

      The fact that Mueller has shown Flynn extreme deference with his sentencing recs, and yet Flynn still spits in his face, makes me think there’s still more info that hasn’t been disclosed yet.  As @DMM pointed out above, it seems like the Logan act wasn’t even on the table, so what other crime did he commit besides lying to the FBI that got Strozk and McCabe so fired up?  Is there more in the Kislyak intercepts that is discussed that the FBI just doesn’t have parallel constructed evidence for that Mueller can present in court?

      Honestly, other than the armed services connection, I don’t understand why Mueller is being so lenient on Flynn.  He seems like a key player in the conspiracy.

  31. Yohei72 says:

    I’ve developed the habit of following up EW’s posts by doing news searches to see if anyone in the MSM has noticed what she has. This one seems to have flown under the radar so far. Of course, they sometimes catch up months later – they’ve just lately begun to take seriously the possibility that Mueller has evidence of conspiracy with the Russians going all the way up to Trump.

  32. Trip says:

    @Alan says:
    December 18, 2018 at 7:42 am

    @ Alan, Flynn thought that they (Trump, himself et al) had the power now, and that he could lie with impunity. The lying was covering up deeper secrets, obviously. It was not the innocent “slipped my mind” BS he is claiming now.

    Don’t forget, the interview with Flynn happened on January 24th. Sessions was not yet recused. That didn’t happen until March: https://www.nytimes.com/2017/03/02/us/politics/jeff-sessions-russia-trump-investigation-democrats.html . Trump thought Sessions, as head of DOJ, would act as protector. (He would have never given him the job, if he knew he would recuse). The fix was in. It was all going to go away.

    P J Evans says:
    December 18, 2018 at 8:45 am

    Yeah, the work-around “open in new tab” doesn’t work either.

  33. klynn says:

    And you were “bumped” for Rudy Sunday AM…After your last few posts, I do not think you will get bumped again.

    Although looking back at Rudy’s performance after all this has been revealed is quite interesting.

  34. Trip says:

    Also adding to my last comment: Sessions not yet recused. FBI agents question Flynn on Jan 24th, on Jan. 27, Trump had the special dinner alone with Comey asking if he liked his job and if he had “loyalty”. Then Sessions only recused in March. Flynn lied because he thought he could get away with it, with all of the forces and plots going on behind the scenes. Period.

    I forgot to mention, as we all know, that Trump was asking Comey to lay off investigating Flynn, at their lovely dinner party for two.

  35. oftee says:

    Great column, Marcy! I found your site through a reference at fivethirtyeight or Vox last winter, and it’s been an incredibly enriching experience to see actual fact based commentators and columns that tend to tamp down hyperbole and vitriol!

    IANAL, so please excuse my ignorance on this one – but were Trump’s instructions to Flynn, et. al, illegal, or par for the course whenever a new administration is about to take over? I am aware of Nixon’s secret/not-so-secret dalliances with the South Vietnamese during his run in 1968, and LBJ’s reluctance to divulge that, but that was an actual war and he was actively undermining a diplomatic solution that served only to enhance his own political standing in the election. How does that compare with what Trump did? Is talking to Russia during the transition illegal? I get how Flynn’s actions are illegal, (not filling out a FARA form for Turkey, lying to the FBI) but is this a case of the cover up being worse than the actual crime?

    Full disclosure – I don’t believe anything Trump says, and I find him incredibly easy to read regarding his personal insecurities, but I am also concerned that some of the illegalities involving his cronies are difficult to explain to a wider audience (I don’t understand all of them either), which of course complicates the political nature of impeachment and potential removal from office.

    Thanks in advance for any insight!

    • Greenhouse says:

      Thee crime is conspiracy (i.e. Con Fraud US). The motives behind con fraud are the quid pro quos involved between the “playas” — Russia and Trump (craven, self-enrichment — Moscow Tower Project, election tampering for sanctions relief). Violating Logan Act is just one of many necessary consequences of the art of the deal. And look, the man fancies himself an artist.

  36. Jenny says:

    Marcy thanks.  You read the tea leaves and see through the redacted material beautifully.

    This is how this administration started out with a con man, con helpers, cheating, lies and greed.  No wounder the foundation is toxic.

    Flynn is neck deep in the swamp.  Cheating, lies and greed will always come back and bite one in the tush.  He must have really given up a lot for Mueller to not request any jail time.  So much more to be revealed …

    Malcolm Nance said:  … Flynn’s redacted 302s showing where he lied. They are embarrassing, sloppy lies. Biggest take away? FBI questions shout to the interviewee: THE FBI LISTENED TO EVERY WORD OF YOUR CALLS AND HAVE A TRANSCRIPT. THEY KNOW YOU ARE LYING IN REAL TIME! Still he lied.

    “All the lies people tell just to cover up the truth that reveals itself in the end.”

  37. oldoilfieldhand says:

    The judge is asking Flynn’s lawyers questions regarding their filings that would better be submitted to the “Trump Donors” who are paying Flynn’s lawyers

    • Valley girl says:

      I’ve often wondered if you were someone I knew from FDL.  At first I thought not.  But now I suspect you are, with a slightly different moniker.  Please help me out.  VG

  38. Trip says:

    @ oldoilfieldhand says:
    December 18, 2018 at 11:50 am

    I’m sorry I missed all of this! Hopefully, it’s written up in full somewhere. I will have to search.

  39. Eslinger says:

    Judge Sullivan has, according to Steven Portnoy (via Twitter), asked prosecutor Brandon Van Grack if the special counsel’s office had ever considered charging Flynn with treason. This came after repeated, clear opportunities were offered to Flynn to publicly refute the government’s charges and methods (which Flynn and his team have been attacking via social media and releases to news agencies).

    Judge Sullivan does not appear to be happy with Flynn or satisfied with the idea of no penalties for him.

  40. Jenny says:

    “Arguably, you sold out your country,” U.S. District Judge Emmet G. Sullivan said to Flynn.

    Thank you Judge Sullivan!   Flynn chose greed.  He just may do time in jail.

    “Leadership is a privilege to better the lives of others. It is not an opportunity to satisfy personal greed.” Mwai Kibaki

  41. oftee says:

    Reply button didn’t work – thanks for your response Greenhouse! I also noticed a comment posted literally a minute after I posted mine that explained some of the stuff I asked about too, I think it was Trip. Either way, thanks for the insight!

  42. Eureka says:

    @ Greenhouse December 18, 2018 at 1:20 pm:

    Greenhouse for the win with an ew site-caliber response to “e.a.f.”‘s latest, and most nonsensically Trumpian, anti-‘USA’/’American’ drop-in. See, my reflexive best was to tell “e.a.f.” to shove his “shit hole” country remark back into his shit hole, and – absent perhaps an additional remark on how his lead-in doesn’t wind to that conclusion, but, in fact, tends to contradict- that was just not up to snuff for the level of dialogue curated around here.

  43. Terry Ott says:

    Thanks to Alan, Trip, and Earlofhuntingdon for your insights in reply to my musings and questions. Since my college days I’ve gotten news and opinion journalism from across the spectrum, so when you refer to the right-wing froth, I know it, though I listen in with a critical ear; sometimes it’s borderline hilarious, actually.

    I watched an MSNBC “Headliners” report on Flynn a few days ago. What popped into my head was that Flynn seemed to go “off the rails” emotionally (psychologically), a few years ago. It reminded me of a chapter in my own life where I buckled mentally after years of 60+ hour weeks of high stress work with heavy travel and unrelenting deadline pressure. I did nothing illegal or unethical when I burned out, but my attitude and behavior patterns definitely went into the crapper. Relationships changed, my decision making techniques that had served me so well for years were blunted, my judgement (looking back on it) was horrendous in some aspects. I was Flynn’s age at the time, and at the apex of my career.

    It took me 5 weeks in a mini-sabbatical setting to realize that I had to “escape”. I did, retired to a “hobby business” and charitable work. No travel. People who get to know me now, in the last 15 years, and those who knew me 30 years ago but have not kept in touch, would not recognize the person I became for two-plus years as I crashed and burned.

    Like Flynn, I was thought to be one of the best in my chosen (albeit, narrow) field of expertise. I reveled in my work to the extreme, finding it and the recognition/rewards addictive. In Flynn’s case, the rug was pulled out from under him when he started slipping; in my case, I was in a private company work environment that was very supportive and non-political which is a big part of what saved me. When I heard high-ranking people say about Flynn in that TV documentary, that he became very different and was not as grounded as he had been for many years of his professional life … “There but for the grace of God … etc.” Oh, yeah.

    • Alan says:

      I can relate to parts of your personal story. With respect to Flynn, I didn’t see the MSNBC story (I watch zero TV news).  Did it discuss Flynn’s very recent actions, for example, stirring up the conspiracy theorists? Based on Flynn’s recent actions, I can’t give him the benefit of the doubt that he simply stumbled and that he’s fundamentally ethical and good–in fact, I can’t see that at all right now, although if his behavior changes in the future, I would certainly have an open mind.

  44. oldoilfieldhand says:

    Valley girl,
    Issues with Reply button: definitely not complaining bmaz!
    Haven’t changed my nom de plume; I enjoy your comments.

    • bmaz says:

      Can confirm from having seen George and the Delaware Destroyers in such a small venue (Flagstaff, Arizona at at a joint on the hill I think) somewhere very near that time, how truly awesome they were.

  45. jf-fl says:

    “emptywheel Yet another piece wondering “WHY DID FLYNN LIE” without reading the 302, where it’s made pretty clear. ” https://twitter.com/emptywheel/status/1075504335705042945

    This is when I have to remind myself that no matter her brilliance, EW is also a reflex partisian.

    When most people say “why did flynn lie”… imho they’re asking a most substantive question:

    why would a 3-star general- knowing he’d be committing a felony lying to FBI and thus risking prison and his reputation and earning power- lie repeatedly on behalf of the Trump administration?

    Granted this maybe unknowable. We don’t exactly know why Flynn was asked to resign from DOD, other than he was a bit of a square peg. Presumably he thought he would get away with it, but most people are assuming he’s either some sort of rational actor with a character flaw (plenty of evidence to support this conclusion) OR he was already exposed in some other way, financial or otherwise that may him need the income from Russia/Turkey/Team-Trump that made him take larger risks. We saw a perfect example of this yesterday when he was trying to play both-sides-ism by throwing in “entrapment” into his own guilty plea. He needed money from fox truthers to pay for his defense and he just went a bit too far.

    The financial motivations of Flynn crimes preceeding his guilty plea (including ones he was not charged with) have been touched on repeatedly, but seems like there is more to why he needed money this badly. Was it simply greed, or could he not get normal jobs ex-DOD folks can because of circumstances of his departure? This to me is actually interesting because unlike most of the people who endorsed Trump big and early, Flynn was not a complete moron. Most respected his intelligence and character, so I think that’s why “why did he lie” is more interesting for him. Flynn was not a cohen or a manafort…. the special counsel emphasized this too regarding flynn in his sentencing recommendation.

    • Trip says:

      or could he not get normal jobs ex-DOD folks can

      This implies a guaranteed privilege/entitlement of attaining work at a certain standard/level that no other person within the general population can assume the ‘right’ to, including the lowly enlisted. It also sounds like being part of the DOD is a mere stepping stone to get these other jobs which their counterparts have been accustomed to for a particular standard of living or stature. Sometimes when people are fired from a job, it follows and haunts them, excluding them from future endeavors of the same. They don’t all go out and then make bank as secret agents of foreign governments.

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