In Defense of Emmet Sullivan: Van Grack Suggested Mueller Did Review Whether Flynn’s Behavior Amounted to Treason

I’d like to defend Judge Emmet Sullivan’s intemperate mentions of unregistered foreign agents and treason in the Mike Flynn sentencing hearing yesterday. Not only has the discussion about his comments gotten the precise language used wrong, but it fails to understand the import of Mike Flynn’s lies about being an agent of the Turkish government.

There are two comments in question. First, in part of a speech about how he would weigh the mitigating and aggravating factors in Flynn’s sentencing, Sullivan said that Flynn was “an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.”

I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States. [my emphasis]

Then, after having gotten Flynn to finally take him up on consulting with his attorneys, but before they recessed, Sullivan sat Flynn down and asked prosecutor Brandon Van Grack if prosecutors had evaluated Flynn’s activities to see if his behavior rose to the level of “treasonous activity.” Van Grack responded by answering about the crime of treason.

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

MR. VAN GRACK: The government did not consider — I shouldn’t say — I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant.

THE COURT: All right. Hypothetically, could he have been charged with treason?

MR. VAN GRACK: Your Honor, I want to be careful what I represent.

THE COURT: Sure.

MR. VAN GRACK: And not having that information in front of me and because it’s such a serious question, I’m hesitant to answer it, especially because I think it’s different than asking if he could be charged under FARA or if there were other 1001 violations, for example. [my emphasis]

Flynn went off, consulted with his lawyers, and wisely decided the last thing he should do is let Sullivan sentence him while he was thinking of treason. When he came back, the first thing Sullivan did was correct that Flynn was not acting as a foreign agent while serving as National Security Advisor and explain that he did not think Flynn had committed treason, but wanted to know what Mueller’s thinking on uncharged crimes was.

THE COURT: All right. I just want to ask a couple of questions. This is directed to either government counsel or defense counsel. I made a statement about Mr. Flynn acting as a foreign agent while serving in the White House. I may have misspoken. Does that need to be corrected?

MR. VAN GRACK: Yes, Your Honor, that would be correct, which is that the conduct ended, I believe, in mid-November 2016.

THE COURT: All right. That’s what I thought, and I felt terrible about that. I just want the record clear on that. You agree with that, Counsel?

MR. KELNER: Yes, Your Honor.

THE COURT: All right. I also asked about — and this is very important — I also asked about the Special Counsel’s Office. I also asked questions about the Special Counsel and the — and other potential offenses for the purpose of understanding the benefit, if any, that Mr. Flynn has received in the plea deal. I wasn’t suggesting he’s committed treason. I wasn’t suggesting he committed violations. I was just curious as to whether or not he could have been charged, and I gave a few examples.

[snip]

THE COURT: And I said early on, Don’t read too much into the questions I ask. But I’m not suggesting he committed treason. I just asked a legitimate question.

MR. VAN GRACK: Yes, Your Honor. And that affords us an opportunity to clarify something on our end which is, with respect to treason, I said I wanted to make sure I had the statute in front of me. The government has no reason to believe that the defendant committed treason; not just at the time, but having proffered with the defendant and spoken with him through 19 interviews, no concerns with respect to the issue of treason. [my emphasis]

Now, I will be honest with you: I was screaming at Sullivan when I read this being tweeted out in real time, in part because I spend so much time arguing that Trump and his flunkies won’t be charged with treason because we’re not at war. I do think, in an effort to convey to Flynn just how reprehensible he believes his actions were, Sullivan got out over his skis. But I think his comments are far more defensible — and telling — than much of the commentary appreciates.

Here’s why.

First, even the docket makes it clear that there are a bunch of sealed documents that Sullivan has gotten, including an ex parte version of the government’s addendum describing Flynn’s cooperation. Sullivan started the hearing yesterday emphasizing that point, then returned to it after he had gotten Flynn to plead guilty again under oath.

There’s a great deal of nonpublic information in this case, and I’ll just leave it at that.

If any of my questions require a party to disclose nonpublic information, or if I begin to discuss something nonpublic, don’t be shy in telling me. My clerks over the years have learned to do this (indicating) if I get off of script or if I get into areas where — I won’t get offended if you do it. I may not see you, so stand up and raise your hands or say something, please. I don’t want to unintentionally say something that should not be revealed on the public docket.

There’s a new document that was filed at 10:19 this morning. The government filed a sealed motion alerting the Court that it inadvertently omitted one document from the government’s in-camera production.

[snip]

Having carefully read all the materials provided to the Court in this case, including those materials reviewed under seal and in-camera, I conclude that there was and remains to be a factual basis for Mr. Flynn’s plea of guilty. [my emphasis]

By yesterday morning, Emmet Sullivan probably became one of the few people outside Mueller’s team and his DOJ supervisors that understands the activities that Trump and his associates, including Flynn, engaged in from 2015 to 2017. He understands not just the significance of Flynn’s lies, but also how those lies tied to graft and conspiracy with foreign countries — countries including, but not limited to, Russia.

It should gravely worry the Trump people that Sullivan’s comments about whether Flynn’s behavior was treasonous came from someone who just read about what the Mueller investigation has discovered.

Now consider that, as part of his effort to understand how much benefit Flynn got from pleading guilty to one charge of false statements for his multiple lies, Sullivan and Van Grack had this exchange.

MR. VAN GRACK: [W]e’d like to bring to the Court’s attention that we just had an indictment unsealed in the Eastern District of Virginia charging Bijan Rafiekian and Ekim Alptekin with various violations, and the defendant provided substantial assistance to the attorneys in the Eastern District of Virginia in obtaining that charging document.

THE COURT: All right. Could the defendant have been indicted in that indictment? Could he have been charged in that indictment?

MR. VAN GRACK: And, Your Honor, the answer is yes, and the reason for that is that in the Statement of Offense in this case, the defendant refers to false statements in that FARA filing that are part of the indictment filed in the Eastern District of Virginia.

[snip]

THE COURT: And that would have been — what’s the exposure in that indictment if someone is found guilty?

MR. VAN GRACK: Your Honor, I believe, if you’ll give me a moment, I believe it was a conspiracy, 18 U.S.C. 371, which I believe is a five-year offense. It was a violation of 18 U.S.C. 951, which is either a five- or ten-year offense, and false statements — under those false statements, now that I think about it, Your Honor, pertain to Ekim Alptekin, and I don’t believe the defendant had exposure to the false statements of that individual.

THE COURT: Could the sentences have been run consecutive to one another?

MR. VAN GRACK: I believe so.

THE COURT: So the exposure would have been grave, then, would have been — it would have been — exposure to Mr. Flynn would have been significant had he been indicted? [my emphasis]

Van Grack not only says that Flynn could have been charged in that conspiracy to act as an unregistered foreign agent indictment, but that the lies he told were part of the indictment.

And in fact, this language in Flynn’s statement of the offense (which Sullivan read yesterday in court):

On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.

Became this language in the Bijan Kian and Ekim Alptekin indictment:

From approximately January 2017 through approximately March 2017, outside attorneys for Company A gathered information to determine whether Company A or any of its employees had an obligation to register under FARA based upon Company A’s work on “Operation Confidence.” During this process, RAFIEK.IAN and ALPTEKIN knowingly provided false information to Company A’s attorneys in an effort to hide from the attorneys – and ultimately from the FARA Unit – the involvement of Turkish government officials in the project.

Among other things, RAFIEKIAN falsely told Company A’s attorneys that:

a. The meeting on or about September 19, 2016 in New York City had nothing to do with Project Confidence, and instead was in furtherance of an abandoned “Project Truth” that was distinct from Project Confidence;

b. There were no other contacts with Turkish government officials regarding the project;

c. The op-ed was Person A’s own idea, and he wrote it on his own behalf, and unrelated to the project;

[snip]

Attorneys for Company A also solicited information from ALPTEKIN for use in the FARA filings. Through his own attorneys, ALPTEKIN falsely told Company A’s attorneys that:

a. ALPTEKIN had not been consulted on the op-ed, and that he would have opposed it if he had been consulted;

[snip]

On or about March 7, 2017, RAFIEKIAN and ALPTEKIN caused to be made the following false statements of material fact in documents filed with and furnished to the Attorney General under the provisions of FARA, and omitted the following material facts necessary to make the statements therein not misleading. RAFIEKIAN reviewed the filings and provided comments to Company A’s attorneys before the filings were submitted, but did not request that any of these false statements be changed.

[snip]

Exhibit A to Company A’s FARA Registration Statement falsely stated that “[Company A] does not know whether or the extent to which the Republic of Turkey was involved with its retention by [Company B] for the three-month project.”

[snip]

Paragraph 13: “In addition to the above described activities, if any, have you engaged in activity on your own behalf which b~nefits your foreign principal?”

Response: “Because of its expertise, [Company A J -officials write, speak, and give interviews relating to national security. Although not undertaken at the direction or control of a foreign principal, it is possible that such activities may have an indirect benefit to a principal. On his own initiative, [Person A J published an op-ed in The Hill on November 8, 2016, that related to the same subject matters as [Company A] work for [Company BJ. Neither [Company BJ, nor any other person requested or directed publication of the op-ed.”

The Attachment to Company A’s FARA Supplemental Statement falsely stated that “[Company A] understood the engagement to be focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, particularly with respect to the stability of Turkey and its suitability as a venue for investment and commercial activity.”

While there are other false statements alleged (presumably the ones Van Grack said Flynn was not implicated in), the EDVA indictment actually charges four counts of false statements, and one of those directly maps to the lie Flynn himself pled guilty to.

Side note: it’s worth mentioning that Rob Kelner — who is still Flynn’s lawyer — is the guy who submitted those false FARA statements, which means he may be the lawyer that will take the stand in the EDVA trial to attest to the lies on those forms. It’s Kelner who still has some cooperation with prosecutors to do, at least as much as Flynn.

Significantly, as I noted the other day, both the conspiracy and the foreign agents charges in the EDVA indictment say the conduct continued through March 2017, the date Flynn Intelligence Group filed false FARA filings, hiding the fact that they knew Turkey was behind the Fethullah Gulen project.

COUNT ONE Conspiracy – 18 U.S. C. § 3 71 THE GRAND JURY FURTHER CHARGES THAT: 1. The allegations contained in the General Allegations of this Indictment are incorporated here by reference. 2. From at least July 2016, through at least March 2017, in the Eastern District of Virginia and elsewhere, the defendants,

[snip]

COUNT TWO Acting as an Unregistered Agent of a Foreign Government – 18 U.S. C. § 9 51 THE GRAND JURY FURTHER CHARGES THAT: 1. The allegations contained in the General Allegations of this Indictment are incorporated here by reference. 2. From approximately July 2016 through approximately March 2017, in the Eastern District of Virginia and elsewhere, the defendants, [my emphasis]

There’s a reason it gets charged that way, which is even more important for Flynn than for his co-conspirators (a reason that also played out in Paul Manafort’s case, in which he was charged for hiding his ties to Ukraine at a time when they would have impacted the Trump campaign).

The point of these registration crimes is that so long as you withhold full disclosure about your actions, you continue to lie to the federal government and the public about the significance of your actions. By filing a registration in March 2017 specifically denying what all the co-conspirators knew — that Flynn Intelligence Group was actually working for Turkey, not Ekim Alptekin’s cut-out Inovo — it prevented the public and the government from assessing the import of Flynn’s actions in trying to force DOJ to deem Gulen a terrorist who could be extradited to Turkey. And frankly, so long as Flynn continued to hide that detail, it made him susceptible to pressure if not blackmail from Turkey.

There’s a grammatical difference between Sullivan’s two comments. He first said that Flynn was “an unregistered agent of a foreign country, while serving as the National Security Advisor.” That was, technically, true. For the entirety of the time Flynn served as National Security Advisor, FIG had not admitted that it had actually been working directly for Turkey. Indeed, FIG continued to lie (and so remained unregistered) about that fact until December 1, 2017, when Flynn pled guilty.

As I’ll show in a follow-up post, it is critically important that Flynn continued to lie about whether he had been working directly for Turkey when he met with the FBI on January 24, 2017.

Sullivan’s follow-up used different grammar. Then, he said “Flynn [was not] acting as a foreign agent while serving in the White House.” That is also true. He was no longer secretly being paid by the government of Turkey to do things like slap his name on op-eds written by other people.

Still, even though he was no longer being paid to take specific actions requested by the government of Turkey, for the entire time he worked at the White House (and for more than eight months afterwards), his past work as an agent of a foreign government — as opposed to a foreign company cut-out — remained unregistered, undisclosed to the public.

With that in mind, I want to return to the specific exchange that Sullivan had. In response to his question about whether Flynn’s behavior amounted not to treason, but to treasonous activity, Van Grack at first says they did not consider treason, but then corrected himself.

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

MR. VAN GRACK: The government did not consider — I shouldn’t say — I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant. [my emphasis]

All of this seems to be consistent with Mueller reviewing Flynn’s actions, reviewing statute, finding that Flynn’s behavior did rise to the standards described in 18 USC 951 (with which Van Grack said he could have been charged), but did not rise to treason (as it clearly did not). Van Grack explained that “in terms of other offenses, they were not sort of in consideration in our interfacing with the defendant,” which seems to admit that Flynn could have been charged with other crimes, but was not, because he cooperated.

This walkback, I’m convinced, is as much for the benefit of the prosecutors, who gave Flynn an unbelievable sweetheart deal, as it was for the sake of judicial restraint. Mueller is forgiving Flynn working in the White House while continuing to hide that he had, during the campaign, secretly and knowingly worked for a foreign government, in consideration of his cooperation unveiling other activities.

But legal standards aside, Sullivan — one of the only people who has read a summary of what Flynn provided in his cooperation — still could not hide his disgust about the conduct he knows far more about than we do.

This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point, had an unblemished career of service to his country. That’s a very serious offense.

You know, I’m going to take into consideration the 33 years of military service and sacrifice, and I’m going to take into consideration the substantial assistance of several ongoing — several ongoing investigations, but I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that. I cannot assure you that if you proceed today you will not receive a sentence of incarceration. But I have to also tell you that at some point, if and when the government says you’ve concluded with your cooperation, you could be incarcerated.

It could be that any sentence of incarceration imposed after your further cooperation is completed would be for less time than a sentence may be today. I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense. [my emphasis]

I remain frustrated that Sullivan raised treason at all yesterday, as I spend a great deal of time tamping down discussion of treason; none of the Trump flunkies’ actions that have been thus far revealed reach treason.

But I think I’m beginning to understand what a big deal it was for Flynn to continue to lie about his service for Turkey, even aside from the disgust I share with Sullivan that anyone would engage in such sleazy influence peddling while serving as a key foreign policy advisor for a guy running for President.

Flynn did a lot of really sleazy things. There was no discussion yesterday, for example, about how he gleefully worked on cashing in with nuclear deals even while Trump was being inaugurated. The public lacks both a full accounting of his sleazy actions and full understanding of their import for national security.

Mueller’s team thinks Flynn’s cooperation has been so valuable that it should wipe away most punishment for those sleazy actions. Emmet Sullivan, having read a great deal of secret information, is not so sure.

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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130 replies
  1. Joe says:

    It is becoming increasing clear that the legal definition of treason is a bit quaint and naive in the age of cyberwarfare. I fear both the consequences from and any solutions to this problem.

    • Desider says:

      Not so quaint – it was addressed easily by Charles Warren in 1918, 100 years ago, noting “levy of war” can be an assemblage of men to overthrow the government by forceful means, whether carried out or not (see page 339, for example – https://www.jstor.org/stable/pdf/787437.pdf).

      We obviously don’t declare war very often, or shoehorn new wars into others, but say the attack on Pearl Harbor didn’t require a declaration even as battleships were being blown up in ambush, and Warren makes that clear. “Violence” in levying war is less critical than “force”, but here the force would be that wielded by an assemblage of men (or women, to be pendantic) with enough force to overthrow the government or otherwise *disable* the government.

  2. Eslinger says:

    Flynn’s actions were egregious, and while comments have been made that his years of military and other service should have a moderating influence on any punishment that he receives, the opposite should be true: at various points in his career he took oaths to support and defend the U.S. Constitution and then knowingly and willingly violated those oaths.

    A history of being an upstanding citizen and productive member of the community may apply in cases where there is the possibility that the offender did not fully understand or anticipate the seriousness of the offense, but this is not the case with Flynn. Perhaps the prosecution’s bargain with Flynn stuck in Judge Sullivan’s craw as a result of such considerations (it did so for me).

    Judge Sullivan may have “got out over his skis,” but given the circumstances I am happy that he did so, at least as a means of communicating the gravity of the situation to the general public. Hopefully, there will be little or no fallout for Judge Sullivan.

  3. David H Remes says:

    Does Trump have any personal lawyers, other than Giuliani, who are assisting him in his known legal travails? The Florida couple?

    • bmaz says:

      Rudy, Sekulow and the couple from Florida, Jane and Martin Raskin, are the ones I am aware of. There is also Emmet Flood, but he is technically employed by the White House.

  4. Trip says:

    The threshold for treason is too high, in a country that has decades long wars, but never declares war. I’m not a proponent of the death penalty, so I’m not seeking blood. It’s just that nothing else quite describes the traitorous (obvs not in the legal sense) behavior. I call bullshit on Flynn being “bullied” (Wittes op-ed?). Flynn could have taken his lumps then and there and be sentenced under a justifiably angry judge. He was given another ‘out’, rather than suffering prosecution.

  5. Trip says:

    I can’t edit: but obviously his lawyers were doing more than asserting Flynn was different because he wasn’t warned about lies being a crime. They added that the agents had been under investigation, which is a clear indication they were promoting a conspiracy of rogue/bad agents, and not just a juxtaposition of other witnesses’ sentencing after warnings.

  6. CCM says:

    I get what you are pointing out about treason. The fate of DT, or most proximal risk is impeachment. When all the facts become known, I suspect the reason Sullivan became so hacked off will hack off the public. Then as the House and Senate decide his fate the technical definition of treason will be a secondary concern. Did DT’s crimes feel like treason will drive the political calculus. Clinton’s behavior was textbook obstruction of justice, prepping witnesses, etc. But most people felt the underlying crime did not rise to the level of impeachment. Now we know DT’s/Flynn’s behavior is enough to make a federal judge act in intemperate ways. the 36000 foot view will be the driver for impeachment. Eventually DT’s criminality will land him in multiple courts and his corpse will be technical feast for multiple prosecutors.

  7. 200Toros says:

    Excellent analysis. I think this is one of the most interesting points:

    “By yesterday morning, Emmet Sullivan probably became one of the few people outside Mueller’s team and his DOJ supervisors that understands the activities that Trump and his associates, including Flynn, engaged in from 2015 to 2017. He understands not just the significance of Flynn’s lies, but also how those lies tied to graft and conspiracy with foreign countries — countries including, but not limited to, Russia.”

    Mueller’s team has accumulated this information over time, while Emmet Sullivan presumably had to consume a huge chunk of infuriatingly bad news all in one dose. His reaction is, I think, telling. That’s what should be of concern to all those involved in the conspiracy.

    Reminds me of the old Jekyll and Hyde movies where you never saw Hyde transform, you just saw the reaction on someone’s face as they watched…

  8. MattyG says:

    Yes, thank you for walking us all through this EW. From his language I can’t help but think Sullivan is disgusted to see Flynn slide for abetting and witnessing acts of *genuine* treason (redacted) just because could cooperate in unveiling it.

    • hester says:

      I don’t know a fraction of what Judge Sullivan knows and I’ve been troubled by Flynn’s skating.   So I can image how irate and infuriated he was when he read all the incriminating facts.  Really troubles me that the higher ups skate…

  9. Erandall says:

    As John McEnroe once said – but not on that occasion to Quinta Jurecic and Benjamin Wittes – “You cannot be serious”. Unless Jercic and Wittes have access to the unredacted documentation and a good deal more besides they must know that they simply aren’t qualified to assert that Judge Sullivan that he has spoken unreasonably or ill-advisedly. When Jurecic and Wittes can bring the same forensic skills as MW to cases such as this – and that is unlikely to be any time soon – I’m not likely to alter my opinion of their opinions or the prognostications of ‘Lawfare’.

  10. Ab909 says:

    Apologies in advance. Reader since Last Hurrah but comment so rarely that I have no clue about the names I’ve used.  But I do know these Two rules…Don’t doubt Marci and don’t run afoul of  Bmaz.  So deep breath here. If a country is at war with us but we are too stupid to know/don’t want to admit it and a person conspires with that entity what statutes are at play?  Pretty much just conspiracy to defraud? Could that fact that we are in an undeclared war be why Sullivan raised the T word?  The I C has been using the word attacks very consistently and maybe some of the documents he saw support that framing explicitly.

    Ok heading back under my rock waiting for the beat down. Love ya’ll!

     

  11. David Karson says:

    Another great article from EW, but due to time, I skimmed it. I apologize in advance if I missed it, but, hypothetically, what do people possibly think is in the redacted statements that made Sullivan’s blood boil, get over his skis, and make him not so sure that a lenient sentence is appropriate for Flynn? TIA.

  12. BobCon says:

    Turkey has its fingers in a lot of pies in the Middle East, a good number of which are arguably not in the US interest, and I have to wonder what else Flynn may have worked on besides the extradition/kidnapping scheme.

  13. SteveB says:

    The difficulty in assessing the aggravating and mitigating features is this: the 33years of military and public service etc is on its face worthy of significant credit, but it was precisely that background which enabled Flynn to achieve the public prominence and eventually high office, and it was that accumulated background and then current positions of influence and power Flynn traded on to commit the crimes he did. Moreover, his role in the crimes depended on him having the positions he was holding or seeking, and abusing them.

    Had Judge Sullivan referred not to treason but to High Crimes, he would have been dead on the money in articulating the very particular form of aggravation present in the case.

    • oldoilfieldhand says:

      My long exposure to the military makes me suspect that there may be more to see if Flynn’s 33 year exemplary service record is closely scrutinized. Not unlike the phone company, the military will spend a million dollars looking for dime. They will also willingly sacrifice non coms to cover a brass warrior’s mishandling of government assets (read soldiers) and funds. REMF’s who write reports deflecting true responsibility from commanders and assign blame to the victims of military SNAFU’s are prized staff. Flynn’s combat experience and ability to think outside the box may be laudable, but expertise in covering the asses of his superior officers in the military may also have played a role in his advancement and assignments. It hardly seems plausible that he woke up one day and decide to betray his country for money. Flynn was trained by the best!

  14. orionATL says:

    i have no problem at all with what judge sullivan said, including some inaccuracies. judges are human. sullivan had every right to be furious with thebbehavior of flynn as nat’l security advisor and also as a lt. general in the armed services (though he did not mention that). flynn’s behavior has been “normalized” just by virtue of being repeatedly discussed – as happens with virtually every crime and criminal- we rarely see or hear the victim side and so the crime always seems less serious.

    not least, judge sullivan is protected in my judgement because he took great care to examine closely and rule harshly on the improper behavior of doj’s public corruption prosecutors’ in the earlier senator ted stevens case.

    as for flynn’s attorneys, a bad outcome from trying to manipulate the judge was a foregone conclusion. how utterly stupid can an attorney be when his cliebnt iys about to walk? not more stupid than flynn’s; he should ask for his money back.

    o,

  15. AitchD says:

    Judge Sullivan’s intemperate reference to treasonous behavior would have come from his provincial sense of his branch of government, which includes the Constitution’s being the supreme law of the land. Flynn’s behavior had been perfidious as he had traduced the state, just like treason by any other name. From the courtroom that Judge Sullivan made into a proscenium for the performance of his court’s branch of government, it appears that Sullivan spoke directly to the next Congress as well as to Flynn: In front of Congress (or in a closed session) is where Flynn will heed Sullivan’s advice about cooperating, which I would have heard as a threat were I Flynn.

  16. orionATL says:

    this goes with eslinger’s comment. count me in on his assessment.

    the ability of flynn’s service to count in his favor is directly proportional to the positive quality of his service to the nation. the value of 33 yrs in the military is wiped out completely by his behavior in 2015-2017, including secret meetings before he or his president had any legal standing to do so, sabotage of sanctions against russia, cozying up to putin in russia, making big money off of a planned kidnaping – -jeezus.

    count the 33 yrs? sure. give the son–of-a-bitch his pension, reduced.

    but he can never have his HONOR back. he destroyed his reputation.

    a couple of years in the pen is the minimum i consider acceptable. i hope judge sullivan doesn’t get cold feet. as for the sco, they had no choice but to request as they did due to flynn’s cooperation, but the judge does have a choice.

    lock the fukr up and hide the keys!

    remember! there are others watching. as earl of huntingdon is fond of reminding us:

    two years hard time “pour encorager les autres”)!!

  17. BobCon says:

    As others have pointed out, Flynn was not only a general, he was head of the DIA. He knew better than most what an interview by the FBI meant. Any kind of suggestion that Flynn was tricked or set up is going to raise the hackles of most judges, in the same way it would be upsetting to hear a defense of a senior Treasury Department official claiming they didn’t know that lying to an IRS agent about their taxes is a crime.

  18. Bill Stewart says:

    Wait, Flynn or Company A actually called their deal with Turkey “Operation Confidence”? Can’t get much more honest than that!

    • Avattoir says:

      Makes one wonder how much “confidence” (or at least bona fee-fees) an administration might gain with, say, Turkey, by handing over to them a U.S. resident the Turkish regime has lusted after for years. Enough to give a pass to a brutal murder then butchery and acid destruction of the body on their soil?

  19. klynn says:

    I still think the Rod Rosenstien comments (Feb 16th 2018) while reading the ConFraudUS charges against the 13 Russians and three Russian entities played a part. Those charges have been defined as Information Warfare according to RR. Might this defined status of the ConFraudUS bump an adversary to enemy? Flynn aided this. That should piss anyone off to the point of using the T word in anger.

  20. AndTheSlithyToves says:

    Marcy, Thanks so much–to you and others here–for continuing the long-form dialogue and analysis of everything SCO and ongoing events related to it. It does help in forming a more complete understanding of how we arrived at our current situation. Unfortunately, I have a day job, so I can’t be here 24/7 reading and opining! ; ^ ) As I’ve said on a couple of other recent posts–and despite bmaz’s strict adherence to Occam’s Razor–I’m not convinced the Flynn sentencing was as straightforward as it appeared. How would the public have ever known about details in the second 302 form (the one where it’s clear that Trump was running the whole show from Mar-A-Lago) and how would have the FBI been able to double down on the surety of Flynn’s guilt in its response if Flynn’s team hadn’t called it out with its bogus “entrapment” nonsense? This seems like a win-win for everyone: The Frothy Right can bitch about the crazy judge; Flynn is under court “protection” for a few months so that no one slips him a Polonium mickey; and the judge has given the SCO a back-handed compliment ([email protected]#) and the opportunity to extend the Flynn franchise for at least another three months.

  21. Desider says:

    Though we were at (as usual non-officially sanctioned by Congress) war with ISIS, and it could arguably be said that Flynn and Trump undermined our efforts there before in office. And now we’re leaving, Putin must be quite glad.

  22. Naomi says:

    behind the black bars-

    queen for a day disclosures-

    that “story to tell” from Flynn when he first asked for immunity-

    if Sullivan is asking about treason is he looking at Flynn’s actions that got him fired by Obama?   The war in Afghanistan would be a requisite for the full definition of treason and we’ve been told Flynn was doing prohibited stuff  to get fired.

    Has Mueller’s mandate to follow crimes which have lead from the Kislyak calls netted reports from Flynn which go back to Obama’s Afghan drawdown in 2013?  What did Flynn do to get himself fired?

  23. Kick the darkness says:

    “Having carefully read all the materials provided to the Court in this case, including those materials reviewed under seal and in-camera, I conclude that there was and remains to be a factual basis for Mr. Flynn’s plea of guilty.”

    Uninformed question-apologies but curious. Does in-camera in this situation mean a production that only the Court can see, but not the opposing side or the public? If so, and that in-camera material is relevant to the charge Flynn is pleading guilty to (as suggested by the Judge), at what point does Flynn, as a defendant, have a right to see that information?

  24. Willis Warren says:

    People keep pointing out the judge lost his shit during the hearing… but what if he didn’t.  What if he was relatively restrained and it’s much worse than anybody knows?  The victory Mueller scored yesterday will probably lead to this coming out soon, at least I’m hoping.  And with a democratic House, we’re going to see a lot more movement all around.

    And I continue to be amazed that everyone who has seen the actual intelligence is on Mueller’s side.  I’m wondering if that includes Whitaker.  I keep dreaming that this nightmare is going to be over soon, but I’ve been on the “treason” train from the beginning.

    • Ken Muldrew says:

      It’s almost like Sullivan is saying to the prosecutor, “Why am I sentencing this guy? You’re going to need his testimony when you indict the President”.

      Prosecutor: “We’re not going to indict the President”.

      Sullivan: “Why not, you have him dead to rights”?

      Prosecutor: “Not our job. Congress has to do that one”.

    • oldoilfieldhand says:

       

      People keep pointing out the judge lost his shit during the hearing…

      Only those who didn’t see Kavanaigh’s response to Christine Ford in the Senate Judiciary hearing for his coronation, sorry confirmation, to the aptly named Supreme Court. It seems that the Judicial Branch is truly co-equal to the Executive Branch in one important aspect: their members, like the Chief Executive is by law, above the law. Apparently lower courts are unable to investigate complaints of judicial misconduct on the Supremes. So, who does?

  25. Alan says:

    @Kick the darkness

    I’m sure Flynn or his attorneys saw all of the in camera material (there were apparently some docs so sensitive that only Flynn’s attorneys were allowed to see them, not Flynn himself). Motions that only the submitting party has seen are called ex parte, but eventually the other parties will see them (there might be an exception to that, but I don’t know of one.)

      • Kick the darkness says:

        Just had never really thought about the actual mechanisms for balancing the interests of the prosecution in compartmentalizing information, like if relates to another case, maybe classified material, etc., versus the rights of the accused to information relevant to their case.  Guess it’s one of the benefits of reading EW-the well manicured garden of rationale analysis.

  26. Mulder says:

    Just amazing stuff again from you, Marcy. So helpful especially after the fragmented reporting that was going on in real time yesterday and then the cobbled together pieces last night into this AM.

    I’m tickled pink that it occurred to me (before reading this post) that Sullivan’s outrage and treason talk was from reading everything that we haven’t been privy to. I could only imagine that he wanted to scream you lyin’ mfer and omfg what have you and the Buff Twinkie and everyone else been doing to our country?!?

    • arbusto says:

      Sullivan went loaded for bear before yesterdays session.  Listening to talking heads, having Flynn sworn in was not SOP and ratcheted up the stakes from the get go.  I wonder how much of his take down of Flynn was extemporaneous or supported by notes.  Not that Flynn got it, but I would venture a guess that he thought he could put this BS charge behind him until Sullivan stated as how Flynn sold out his country and honor and bye the bye Mr Prosecutor, have you considered treasonous action by the defendant.

  27. orionATL says:

    klynn. good point. information warfare was what it was. a former head of the defense intelligence agency would know:

    1. by its content, thecrusdian interventions in the 2016 election discusdion were calulated information warfare.

    2. that the leader (trump) flynn was working with and for was on the political side exploiting that warfare.

  28. Strawberry Fields says:

    @AndTheSlithyToves
    I do not know the law, but I find it hard to imagine that A) Mueller could predict the future well enough to pull of a stunt like that. B) it’s hard ro imagine that Mueller coordinating with the person he is sentencing is/would be legal/ethical? To me… it feels like asking the person your accusing of a crime to undermine their own sentencing for selfish reasons (ie. change public opinion) could cause a civil liberties suit and shut the Mueller probe down?

  29. James Ward says:

    Lots of people saying “Boy that judge sure seemed pissed”. And Marcy is right. That is bad news for the Trump gang. He is pissed because he saw some of the evidence and was shocked by it. Couldn’t believe one of the conspirators is getting off so easy. Needs more assurance that what the government is getting from him is worth the deal. That has to be bad news for the rest of the gang.

  30. Charles says:

    While I generally agree with the analysis, I have a hard time believing that either a federal judge or a federal prosecutor would not be familiar with the elements of treason (https://www.law.cornell.edu/uscode/text/18/2381#; see also https://www.law.cornell.edu/constitution/articleiii). Since Flynn did not levy war against the US, one can ask whether he adhered to its enemies. The US is not at war with any state (just “terror”), so our only declared enemies are those who committed the acts of 911. Unless Flynn was selling weapons to ISIS, it would be a hard sell. I suppose if one considers Saudi Arabia as the source of Salafism, it’s not out of the question.

    But the prosecutors thought zero jail time was appropriate. It’s hard to believe they would do so if he had done something equivalent to arming Osama bin Laden.

    And then there’s precedent Wikipedia lists 12 people who have been prosecuted for treason in our nation’s existence. The five most recent have been for acts during World War II. Three were during or in the lead-up to the Civil War. One was a miner’s strike. Two were rebellions (Whiskey Rebellion and Fries Rebellion). nothing resembling anything like what we know about Flynn’s behavior.

    So, I suspect Sullivan’s tirade was more theater than anything else. Flynn’s sentencing response attempted to exonerate him for his crimes. Absent repentance, what judge would accept a plea deal with no jail time. So, Sullivan may have given Flynn a few month’s to reflect and realize he was not the victim here.

    I guess we’ll know when the redactions come off.

  31. Jockobadger says:

    Hi Willis W – Curious about your thoughts wrt AUSAG Whitaker. From everything I’ve read here on EW (ty) and elsewhere, he seems to have mostly been a sort of dimbulb carpetbagger with a JD (see toilet for the well-endowed man, time-travel, etc.) Does anyone know if he’s passed his ethics exam and been read in yet? Haven’t heard much from him and I wonder if he’s just stunned into inaction by the alleged activities of his patron President Trump?

  32. cat herder says:

    (Tech support)

    I know mentioning that ‘Reply’ is acting weird are frowned upon, but something new and extra-weird is going on. It does not work for me AT ALL. Not even opening the link in a new tab works (it used to). Not opening in a new window. Not even with ALL extensions disabled. Not even when I allow third-party cookies.

    Is it device- or browser-version-specific? Because there’s nothing else I can do on my end. Something has been changed in the last ~2 days that has broken the site but only for some users.

    • Eureka says:

      Same for me, cat herder (and PJ and Trip below, and others recently).  It started Monday evening when the sign-in boxes flipped to go above the comment box.
      I can only on rare occasions get a reply box to work- as here- after having posted a new comment in the main stream.  I noticed later at night, with presumably less intense traffic, that an occasional reply box would work.  Refreshing the page, old rt-click new tab trick, all that has been mentioned no longer works.
      I also went back to the “Reply Button” page and tried a separate trick Rayne had then-proposed.  It didn’t work for me.
      EW had asked for feedback at that time, and the open discussion seemed to have helped with trouble-shooting, so perhaps it is welcome now.  I say this in a ‘maybe we can figure it out’ sense-  not complaining.

  33. ArthurKC says:

    Terrific analysis. Thank you. But was not Flynn with Trump when they finally got the first national security briefing in August 2016? When Trump was advised that Russia was attacking the presidential election? If so, then I can see how Sullivan might well have considered the December 2016 contacts with Kislyak to have been, if not treason, then “treasonous”. And I think we all share the strong inference that Flynn would not have made those calls without a green light from Trump. If so, testimony by Flynn to those facts alone would seem to justify the great deal Flynn is getting no matter how disgusted Sullivan and the rest of feel about Flynn’s conduct.

  34. P J Evans says:

    @cat herder – not just you. Sometimes software updates to sites break sites. (Another example -SFGate has been broken for the last three or four weeks, since somethign backstage was “fixed”/”ugraded” – and it’s a fairly busy news site.)

  35. Alan says:

    @ArthurKC

    yours is the best theory I’ve seen so far–giving aid and comfort to the enemy that just attacked our elections might be considered “treasonous”

    • Pat Neomi says:

      It could be construed as “treasonous” in the colloquial sense, but not in the legal sense. Treason applies only in times of formally, constitutionally declared war, and the aid and comfort of enemies thereof could only apply to enemies against whom that war was declared. There’s simply no reason to think Mueller would go rogue and try to redefine the Constitution. But it also seems reckless for Sullivan to make colloquial insinuations of legally defined terms in open court.

  36. X says:

    Turkey has been a noticeable player in US politics since the days of Denny Hastert, at least.  Since they have been given a pass this long, why would they not find a new high level contact to maintain  influence?  This was exposed by Sibel Edmonds many years ago.

  37. Pat Neomi says:

    Marcy’s read is has to be correct. Given that both war and treason are constitutionally defined, and that constitutionally-defined war being formally declared is requisite for a charge of treason, it strains credulity to think that any reasonable prosecutor would make such a cavalier analysis of our current state of “war” (which is an accurate read in all ways, save the constitutional) to get to the point where they would charge actual treason. It is confounding that Judge Sullivan would even ask about it in light of this. As Marcy has no doubt laid out before, it seems wholly unlikely that Mueller, who by all accounts is as by the book as anyone (and what more important “book” is there relevant to this matter than the U.S. Constitution), would draw such a insouciant conclusion for something as deeply defined as this.

    Perhaps what Sullivan was insinuating was that he is dismayed at the fact that there isn’t a statute for behavior that is treason-adjacent that would entail “selling out your country” that doesn’t involve aiding and abetting the enemy in wartime. Still, even thought his underlying concerns have merit, his use of language was a bit reckless.

    • P J Evans says:

      Where does it say that declared war – or a shooting war – is required for a charge of treason? (Even in 1787, not all wars were declared.) The definition in the Constitution doesn’t say that – it’s levying war against the United States, OR giving aid and comfort to enemies of the United States.

      • Pat Neomi says:

        It also just seems like Marcy has the same read on it, and I would absolutely defer to her research on the matter over my understanding. Can anyone link to a piece here that would explicate Marcy’s understanding of this?

    • Pat Neomi says:

      Thanks Alan! Good to know. It seems there are prosecutors and grand juries willing to bring the charges, at least. For better or worse, his apparent subsequent death precluded the opportunity to litigate the matter. It would be interesting to see what the Supremes had to say about charges in that context.

  38. Bay State Librul says:

    Words matter and the Judge done good.

    I’ve argued before, and got my arse handed to me, that what Trump did was treason, pure and simple.
    I know, I know, the law doesn’t say, so but it looks like treason to me.
    Cyberwarfare is war.
    This lying shit reminds me of Old Roger Clemens denying that McNamee didn’t stick a needle of steroids up his ass. The court and lawyers gave him a pass, but he is still
    a lying sack of shit.
    A hurricane is a coming.
    All those fucking Republicans, (I’m talking to you, Rep Nunez, et al) should have bailed out and left the coast for higher ground.
    “The wind came back with triple fury, and put out the light for the last time. They sat in company with the others in other shanties, their eyes straining against crude walls and their souls asking if He meant to measure their puny might against His. They seemed to be staring at the dark, but their eyes were watching God.” Zora Neale Hurston
    Nunez should be indicted for obstruction of Justice (I know, I know, he is exempt?)

  39. Apollo says:

    Do we know for sure that Flynn’s criminal behavior had no impact on theatres of war in which US is/was currently engaged?

  40. Pat Neomi says:

    P J Evans, I take your point that it isn’t defined as such in the constitution. But many things aren’t explicitly defined, and as with many things constitutional, there is a need for analysis. But while it doesn’t say explicitly that it MUST be a formally declared war, war itself is something that is also defined therein (and the power to do so is solely vested in Congress). Because these two things are both explicitly laid out in the text, it seems reasonable to infer that one should read this to mean that they inform each other. I won’t exclude that it is certainly open to interpretation, but the precious little case law surrounding treason seems to point toward a very narrow definition. My point was mainly that it seems unlikely that Mueller would take a broad definition and force a square case through a round precedent. I would, however, certainly be interested to hear from anyone who has a deeper understanding of the legal underpinnings than do I.

  41. AndTheSlithyToves says:

    @ Strawberry Fields | 1:54 pm: I wasn’t intimating that there was any coordination on either SCO or Flynn’s part, and why I posed my discomfort as a question when I first brought it up. My thought is that Flynn/his team noticed/knew that the contents of the long-form 302 were still non-public, and would be devastating to Trump & Co. should they be released. Had the SCO overlooked these details? Would they come out later? Why wasn’t the SCO revealing them now? What better way to curry favor with the SCO, point out the oversight and fool/enable the frothy right by hiding behind “entrapment”?

  42. MattyG says:

    @ hester 3:09pm. Yes, and the hope here is that his cooperation unveiled potentially treasonous acts *by superiors* for Flynn’s skating to any way be redeamed. He may be pretty high on the food chain but there but there’s a ton cheese just rungs above him.

  43. orionATL says:

    p.j. evans,

    seems reasonable on the surface. i’ve been trying to get the lawyers to tackle that little “OR” in the constitution for quite some time.  but no takers😐.

  44. P J Evans says:

    And as I said, they were quite familiar with undeclared wars – think of all the attacks on or by the prior inhabitants, right up to the time the document was being written. (One of the documents I ran across, working on my own family tree, is an interview of a 4th-great-grandfather who was in Kentucky before 1790: Draper Collection, series 12CC, p247-50. It gives me the mental image of an old man in overalls (shirtsleeves rolled up), sitting in a straight-backed rocking chair, holding a corncob pipe.)

  45. Avattoir says:

    So I’m Salo, sent to Earth to observe local goings-on and report matter of potential global interest to the planet Tralfalmadore (the version of it, at least, that accords with The Sirens of Titan):

    To: Core Machine Intelligence, Tralfalmadore
    Re: MICHAEL FLYNN, U.S. national Army Lt. Gen. (retired)

    Yesterday, two serious American human nationals, each an able, competent, intelligent, well-informed government official of senior rank, responsibility or both, whilst engaged in their work, in the context of a formal and evidently quite serious public proceeding which each was acutely aware had drawn intense public interest throughout that country (and indeed significantly beyond its borders), proceeded to discuss, on the record, the “serious question” suggested in this passage:

    Original level legal interpreter and enforcer (hereinafter referred to as “COURT”):
    1. “…I really don’t know the answer to this question,”
    2. “but given the fact that the then-President of the United States”
    3. “imposed sanctions against Russia for interfering with federal elections in this country”
    4. “is there an opinion about the conduct of the defendant the following days
    5. “that rises to the level of treasonous activity on his part?”

    Representative of Investigating & Prosecuting Body (hereinafter referred to as “MR. VAN GRACK”):
    6. “The government did not consider — I shouldn’t say — I shouldn’t say did not consider …”

    THE COURT: “All right.”
    7. “Hypothetically, could he have been charged with treason?”

    MR. VAN GRACK:
    8. “Your Honor, I want to be careful what I represent.”

    THE COURT: “Sure.”

    MR. VAN GRACK:
    9. “And not having that information in front of me”
    10. “and because it’s such a serious question,
    11. “I’m hesitant to answer it …”

    1. This from by a senior judge of the very federal district court of the U.S. which considers almost all, and therefore almost all the most serious legal questions concerning U.S. national security and the powers of the American president. If there were in fact an obvious, plain & simple answer to his question, I am unaware of any basis for imagining he wouldn’t be immediately aware of what that is.

    2. Given the timing of the events under discussion, COURT is referring to the previous U.S. president, Obama.

    3. Obama in fact did that.

    4. There are of course, no shortage of such “opinions”, particularly among human citizens of the U.S.; but considered in context, COURT appears to be inquiring after whether the American national crime prosecution agency has settled on one that applies to the case at hand (or possibly whether the official under whose authority MR. VAN GRACK currently works has arrived at some such opinion independent of that agency – though, I observe for that particular official to have done that is inconsistent with this reporter’s understanding of both his quite lengthy history in government service, not to mention his nature).

    5. That choice of words, “treasonous activity” is, to say the least, intriguing, particularly considering the context.
    There appears to be quite a widespread misunderstanding among American citizens of the legal basis for a finding of the existence of condition described in by root word “treason” (or indeed any particular regard for predicates in the legitimate application of such ‘loaded’ words), but that’s beyond its use in news-based entertainment and within the argot of statements made to gain elected office, that appears substantially offset by the apparent requirement of a “state” or condition of “war” against another nation having been “declared”.However, what all officially-stated positions might in fact constitute such “declarations” is imprecise.
    In addition, yesterday’s hearing was conducted within the context of a mandate that applies to MR. VAN GRACK’s office that’s sufficiently broadly to encompass a range of inchoate crimes, such as attempts and conspiracies, and as well concerns not just past occurrences but also contemplated events.

    6. MR. VAN GRACK is by nature and training a cautious public speaker. The safest available construction on his words at this point is that he was in fact aware of such ‘consideration’.
    This is significant: as with COURT, there is no basis for thinking that MR. VAN GRACK suffers from the widespread misunderstanding to which I have already referred.

    7. Fascination with hypotheses appears to be well represented within the human condition, and indeed the feeder systems into the American court system and that system itself encourages them, so it’s difficult to dismiss this question as idle, or as some attempt to inanimate fear in the human(s) whose conduct is being discussed.

    8. See 6. above.

    9. MR. VAN GRACK must be taken to be referring to “information” the exists, which he both knows is reduced to written form and to which he has access.

    10. See 8. above.

    11. See 10. above.

    I caution that while the above discussion ‘only’ referred to one other national polity (Russia), the mandate of the office for which MR. VAN GRACK works would appear to the wider interest of that polity in other national polities of national security concern to the U.S. To be clear, there is no particular reason of which I am aware as to why that would exclude the nation of Turkey (Much of the above discussion keyed off connections MICHAEL FLYNN had with Turkey.),
    or, for that matter, the Kingdom of Saudi Arabia, the United Arab Emirates, or the nations of Israel, Egypt, Qatar, and Iran – all being national polities which have been of interest – including, with at least some, hostile interest, actual or potential or both (Iran in particular) – to MICHAEL FLYNN and the current U.S. president, and indeed to members of latter’s family.

    • Trip says:

      However, what all officially-stated positions might in fact constitute such “declarations” is imprecise.

      Interesting. Thank you, Avattoir. I had it beaten into me on this site some time back that the requirement of (declared) war (with a state) was more precise.

      So does this mean that it’s another example of ‘it depends on the interpretation of the constitution’, especially as it relates to modern day nuances? Forgive me if this is a dumb question.

  46. Jenny says:

    Thanks Marcy for putting the puzzle pieces together so quickly with great skill.

    Remember Flynn said, “Lock her up” at the Republican National Convention. This from a former Lt. General, DIA Director and National Security official. With all the experience he had in the military and intelligence, he knew what he was doing. He chose greed.

    “Fraud is the daughter of greed.” Jonathan Gash

  47. Charles says:

    @Alan, @Pat, @Neomi

    I linked the list of Americans *convicted* of treason from Wikipedia. No one has been convicted of treason since World War II. Almost all the convictions have been about acts in declared wars, in rebellions, or in the lead-up to the Civil War. Not even the “Atom Spies” were charged with treason. And some of the treason convictions have been, bluntly, shameful.

    Adam Gadahn was charged with treason, but was killed before he was captured.The Grand Jury was free to file charges knowing prosecutors would probably never have to argue them in court.

    So, put yourself in the shoes of a prosecutor with Michael Flynn. You consider charging a crime for which no conviction has been obtained in generations. Then you consider charging him with lying. Which charge do you bring?

    • Alan says:

      I am not and have not advocated charging anyone with treason. This thread came up because Pat responded to my response to ArthurKC’s guess as to why Judge Sullivan might have used the word “treasonous”–it is an attempt to explain the Judge’s use of the word, which didn’t come out of nowhere, and IMO was most likely tied into something that might at least arguably be considered giving aid or comfort to the enemy. I’m not trying to get into a debate about who can be indicted for or convicted of treason–that’s getting a little too far afield for me…

      • Charles says:

        Right, Alan… I only @lerted you because you mentioned the Gadahn case. I thought that was a great addition to the thread, but wanted to contextualize it as a charge filed but never tried.

  48. MattyG says:

    Fine but the issue here isn’t that the OSC chose the easier route to a conviction but that he isn’t being charged with the underlying crime? And that it’s the underlying crime(s) that raises hackles and talk of treason?

  49. johno says:

     
    Perhaps we should reserve the word “treason” for the definition in the Constitution – the ultimate betrayal in actual declared war (kinda have to). Then, it seems, we need a new word for “treason lite”. “Conspiracy” doesn’t seem to cut it WRT Trump/Russia.
     

  50. Trip says:

    @Charles

    So, put yourself in the shoes of a prosecutor with Michael Flynn. You consider charging a crime for which no conviction has been obtained in generations. Then you consider charging him with lying. Which charge do you bring?

    Flynn cooperated, so he was given a lesser charge to plead guilty to, but not as a step down from treason. It wasn’t an either/or: Lying or treason.

    • Charles says:

      It wasn’t an either/or: Lying or treason.

       

      Of course it wasn’t an either/or, Trip. But it was an easy/incredibly hard: well-established crime or almost-never-prosecuted crime.

       

      And now that he’s an admitted felon, any further charges that might crop up if he hasn’t been totally truthful would be slam dunks.

  51. P J Evans says:

    @Johno
    I suggest you read that definition again, as it DOES NOT say anything about “only in declared/shooting wars”. It says “waging war against the United States”. People are making a really big assumption about what it says. We can’t assume that it was intended – because they were quite familiar with undeclared wars, and if they’d meant only declared ones, I think they’d have said so.

  52. errant aesthete says:

    Marcy,

    Another masterpiece in logic and critical thinking. Words do matter and what I believe most of the citizenry from this country will come away with from Flynn’s sentencing hearing yesterday are, intentionally or not, a few of the “intemperate,” though memorable, remarks of the Honorable Emmet Sullivan:

    “Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people.”

    “… all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.”

    “…given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?”

    “Hypothetically, could he have been charged with treason?”

    “I’m not suggesting he committed treason. I just asked a legitimate question.” (emphasis mine)

    “This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, [sic] up to that point, had an unblemished career of service to his country. That’s a very serious offense.”

    “…that undermines everything this flag over here stands for.” (indicating).

    “Arguably, you sold your country out.”

    And we’re getting squeamish about revisiting treason?

  53. MattyG says:

    A judge who had just read the redacted sections of the court papers used the term. Consider that Trump Russia has fingers in many areas in which war is a component; hot war in Syria where we are/were involved; Trump may well have ceded that country and our interests in exchange for Kremlin election help in the election, simmering wars with our kinda allies Crimea and Ukraine; again Team Trump may have surrendered the national interest to Putin to advance his election cause, Information Warfare waged against the US electoral process to assist Trump; entities Flynn was associated with like Cambridge Analyitica could conceivably have been coordinating analytics back and forth with the GRU by means of Trump emmisaries, and other hot spots around the globe where US contends with Russia in a confrontational manner. I know these are a lot of wild-ass “ifs” but I think I’ll stick with the judge until told that the underlying crimes are not within striking range of a technical definition of treasonable.

  54. earlofhuntingdon says:

    “Mueller’s team thinks Flynn’s cooperation has been so valuable that it should wipe away most punishment for those sleazy actions. Emmet Sullivan, having read a great deal of secret information, is not so sure.”

    I presume that Mueller’s team still knows more than Sullivan about why Flynn’s cooperation might be so important, and that Mueller is not given to exaggeration in such things.

    As for Flynn, his representation might have ended on November 16, 2016. But the kind of influence his was selling required delayed satisfaction. Flynn’s ability to provide that satisfaction was curtailed when he was fired.

    We’ll never really know whether Flynn would have fulfilled his side of any bargains he tried to strike. That we don’t know puts into jeopardy, I think, his entire career. (What about Flynn’s peers who weren’t caught?)

    The appearance this creates is that Trump doesn’t casually like foreign despots such as the Philippine’s Duterte. He is doing what he can to emulate them.

  55. di says:

    i concluded this yesterday, affirming in a comment here the sleaziness of flynn that is shocking even with public info is know. pence should be attached to this.. although, treason does not apply, and it really seems sullivan knew that, it provoked the lawyers to recess and study further and question their lack of due diligence. not knowing why sullivan used the word “treason”, it was an extremely smart move to have others question themselves, who came into the court with an attitude of privilege and arrogance. sullivan gave them a “come to jesus moment”. while i saw one prosecutor refer to sullivan’s behavior as “intemperate”, i saw other lawyers who had tried a case before sullivan say he is not intemperate but thoughtful and thorough. i think sullivan skillfully used his judicial responsibility to challenge the arrogance, privilege and political influence they carried into the court, to remind them of the rule of law. enough of this hero worship of white privileged men of the military industrial complex. maybe the potus will take heed to his recent tweet that judges are political. they all deserved that slam down yesterday, and more. fully grasping what we publicly can know about flynn is pretty bad enough , so i can only imagine what judge sullivan knows that we don’t. sullivan is quite wise in doing what he did. imho, there is a lot of crap we don’t know but i can connect enough dots to see why sullivan did what he had to do. too bad we don’t do enough of this with all the white collar criminals and politicians who get away with crimes all the time. some should be wondering if they are next.

  56. Poppy says:

    Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people

    Do you think tthee judge is giving General Flynn some extra time to clarify these things? Maybe he knows that the VP and press secretary Orin on it full-time

  57. earlofhuntingdon says:

    Regarding the continuing treason debate, nor can we assume that when the Founders limited the crime of Treason to “levying war” against the United States, “war” meant harsh words, trade sanctions or punitive taxes on tea.

    Nor does it mean that “Enemies” of the United States, to whom giving comfort is Treason, includes every country we have a conflict with. That would be all of them.

    American constitutional language was intended to restrict the crime of treason. In England, treason was dangerously vague. It included personal affronts to the sovereign (being sufficiently rude, by the rigid standards of the day, or sleeping with his wife), as well as political or armed rebellion.

    The consequences for the English nobility and gentry included permanent loss of lands and titles. (Hoi polloi lost their heads and entrails.) In a culture where land was the source of wealth and where large landholders formally ruled economic, social, legal, and political life, the punishment was horrific.

    More importantly, the consequences were generational. The American response was to dramatically narrow the crime and to limit punishment to the individual.

    • MattyG says:

      Which makes the timing of Trumps unilateral decision today to entirely pull out of Sryia – a hot war we have boots on the ground in – all the more curious.

  58. Susan Galea says:

    Perhaps the definition of ” treason” is too narrow. Shouldn’t it be updated to include cyberwar in the ” at war” rubric?

  59. Eureka says:

    Whenever the Gulen topic comes up, I think back to these articles status post (staged) failed coup, one with some local color: a rare Gulen interview; the neighbors think he and his fellows are nice enough. So I tracked them down to share in case anyone is interested. Gulen himself is very wont to rescue, empathize with and similize himself and his followers with social insects (bees, ants; termites).
    Lots of background packed herein as well:
    From Poconos retreat, Muslim cleric Gulen: ‘We will oblige’ if extradited for Turkish coup
    http://www.philly.com/philly/news/20160718_From_Poconos_retreat__Muslim_cleric_Gulen_prepares_to_speak_of_failed_Turkish_coup.html

    Poconos cleric denies involvement in Turkey coup attempt
    http://www.philly.com/philly/news/20160716_Turkey_s_president_blames_Muslim_cleric_in_the_Poconos_for_military_coup.html

  60. Trip says:

    If Trump is pulling out of Syria and other places, why the big increase in military spending? Will he be paying Eric Prince’s mercenaries?

    • Eureka says:

      Will he be paying Eric Prince’s mercenaries?

      I assume this is a rhetorical question (lol-not).

      But serious Q, how would we ever know?  I thought Defense budget line items these ‘contracts’ were as well- tucked as dark-money donors these days.  Like (just making this hypothetical) KSA could hire them and it could come out of ‘that’ part of our ‘budget.’

      • Trip says:

        Ahem…

         

        Senator Charles Grassley writes, “Over the past few months alone, the Defense Department has had to explain why it’s been paying $14,000 for individual 3-D printed toilet seat lids and purchasing cups for $1,280 each.”
        https://twitter.com/nytimes/status/1075631892442071040

        R-I-G-H-T, “toilet seat lids”.

        Speaking of the ghosts of Prince and Blackwater:

         

        On Wednesday morning, a jury found Mr. Slatten, 35, guilty of first-degree murder — a charge that carries a mandatory life sentence — for his role in killing one of 14 unarmed Iraqi civilians in the Sept. 16, 2007, shooting. Ten women, two men and two children were killed in the shooting, and 18 others were injured, according to the United States attorney’s office for the District of Columbia. A sentencing date has not been set.

        And reminiscing about the past:

        Blackwater Said to Pursue Bribes to Iraq After 17 Died

        https://www.nytimes.com/2009/11/11/world/middleeast/11blackwater.html

         

         

  61. Desider says:

    @di – again I’m not sure why “treason” is seen as an unevolving definition, since the 1918 Charles Morrow dissection gives lots of modern (for that time) understanding – not quite up to cybercrime, but a serious aggregate of men preparing & attempting to overthrow the government through “forceful” means (which doesn’t have to include guns or Spitfires) does seem to fit Morrow’s definition of “levying war”. He also interestingly includes foreigners living on US territory (presumably in a non-diplomatic function) as owing allegiance to the US government, which would then make Butina arguably guilty of treason. Perhaps that was one of the targets to Mueller’s questions over the modern view of the Constitutional definition of “treason”?
    https://www.jstor.org/stable/pdf/787437.pdf

  62. Tom says:

    Flynn’s situation reminds me of another American general with dodgy foreign connections–General James Wilkinson (1757-1826). As the senior Brigadier General in the U.S. Army during the 1790s, Wilkinson secretly collected a $2000 annual pension from the Spanish government for looking out for its interests on the southwestern frontier, chiefly with regard to helping the Spanish re-establish their empire in that region.

     

     

  63. cat herder says:

    Aaaaand… it’s broken again. On this page, anyway. It works on the next most recent post. I’m out. Too broken and I don’t have the patience for it.

  64. bmaz says:

    Okay folks, treason is the only criminal offense specifically discussed in the Constitution, and it was intentionally extremely restricted and intended to apply to only very certain instances. It is NOT meant to be a catchall for “the stuff you don’t like”. It was meant to be, and is, extremely restricted for a reason. Its not “quaint”, it does not need a “modern view”, and it does not need to be “updated for cyber”.

    And, yes, it does require armed conflict of a specific nature that restricts its use to very few situations. A formal declaration of war is not necessary, but there has to be open hostilities and some acknowledgment of it, such as the use of force authorizations after 9/11. Quit trying to argue that is not really the case, when indeed it is. This article from the WaPo lays it out:

    But enemies are defined very precisely under American treason law. An enemy is a nation or an organization with which the United States is in a declared or open war. Nations with whom we are formally at peace, such as Russia, are not enemies. 

    ….

    So who are the current enemies of the United States? North Korea is a possible enemy, since the Korean War was never formally concluded. Certain nonstate actors can also count as enemies, and terrorist groups such as al-Qaeda and the Islamic State probably fit the definition.

    Treason does not apply here, get used to it. And, yes, it was still ludicrous and wrong for Sullivan to have gone there at Flynn’s sentence proceeding, and Sullivan himself knows that. There is about zero chance this will come up at the next sentencing, on anybody’s part. So, in closing, treason is like RICO, if you are suggesting it other than humorously, you are being silly and should not do that lightly.

  65. harpie says:

    Ryan Goodman links to  this post in his new article:

    Flynn’s Work as Turkey’s Agent While a Transition Official: Judge Sullivan Was at Least Half Right 

    […] Although the legal definition of treason does not apply, it is understandable that colloquial use of the term and other non-legal terms like traitor or treachery might. At a minimum, Judge Sullivan is not alone in his thinking and there is more evidence in the public record to suggest he was at least [link to this post] half-right about Flynn. 

  66. P J Evans says:

    bmaz, is there a citation for US treason law where it defines wartime as it applies to Art III?
    Because as I said, Art III doesn’t say anything limiting it to wartime or declared wars – so it has to be a later law. Which somehow never gets cited.

    • bmaz says:

      The actual statute is 18 USC §2381. The requirement of actual war is inherent and acknowledgement of that goes all the way back to United States v. Aaron Burr. Listen, I know people badly want “treason” to be expanded as a catchall, and I cannot possibly think of a worse idea. It carries potential for the death penalty, and it would be really bad to blithely expand its reach. Also, you can reference Cramer v. United States, where the Supreme Court overturned the conviction of a German born US citizen expressly noting that it must be an affirmative act during wartime. And “wartime” means exactly what the quote in my earlier comment says it means.

      In short, this is the law, it is going to stay the law, and trying to artificially expand it to situations not intended is truly a horrible idea.

      • earlofhuntingdon says:

        Exactly.  Who would want, for example, the Don and Matt Whitaker to have a broadly defined treason statute at their beck and call?  He would have Hillary and Nancy sharing a prison cell before his first morning tweet.

  67. Yohei72 says:

    Thanks to Marcy and the other commenters here for a refreshing brain scrub after I let myself get sucked into a comment thread debate with a conspiracy nut of the “Flynn only committed minor process violations and is being railroaded by the Deep State” variety.

    Come to think of it, it might have been Dershowitz under a pseudonym.

  68. Alan says:

    @P J Evans

    FYI, bmaz did not say treason was limited to wartime (rather than repeat what he said, I’ll refer you back to it).

  69. Trip says:

    JFC, close call? WTF kind of a thing is that to say? Is this a sporting event? Nothing like erring on the side of caution or anything.

    Del Quentin Wilber‏Verified account @DelWilber

    BREAKING. senior DOJ official: Whitaker has not recused from Mueller probe. After extensive review by senior officials, he did not seek formal ruling from ethics office. BUT a senior doj ethics official said it was a “close call” and he should recuse in an “abundance of caution.”..Because this was a “close call,” senior appointed DOJ officials recommended to whitaker he not recuse. They noted no AG has ever recused for an “appearance” issue in the past. Whitaker yesterday accepted that recommendation…DOJ sending letter to Senate explaining Whitaker’s decision. https://twitter.com/DelWilber/status/1075806100732198914

  70. Desider says:

    @bmaz Not trying to be a smartass, but there are areas to consider, such as when Chinese went through the countryside destroying dams to kill millions (in an odd one, Chiang Kai-Shek did it to his own people for “strategic reasons”). The Constitution says a group arrayed to “levy war”, but is *seriously & actively* attempting to topple the head of state not an act of war whether via nerve agents, removing heat controls on nuclear reactors for explosions near major cities, or poisoning the leaders of the country? i.e. an act(s) attempted or carried out that seeks to destroy the country’s ability to function as a state through deadly effect? While Mueller has been taking the “conspiracy to defraud the United States” route, it’s hard to see that Putin spending $2billion a year to cause chaos & disruption of US foreign policy, regulatory bodies, Congress & populace is less of an effort to “levy war” than a foreign platoon with M249s attacking a border town, just because not armed in the traditional sense, but sill with capability of mass destruction/destraction.
    And presumably Japan’s fleet sailing towards Pearl Harbor with intent was an act of war and overt hostility, even though the US did not declare war until half the fleet was wiped out – someone who directed planes to their targets would still be guilty of treason.
    i agree “cyberwar” usually doesn’t rise to the level of an actual war needed for treason, but I’m not sure it can’t in certain circumstances.

    • bmaz says:

      No, there is a real difference. And, if you want to understand it, try replacing the parties and applying “treason” to us in other countries. It happens far too often and easily, and US citizens appropriately react in horror. But here we are, with even people in the most enlightened comment section left in the blogosphere, trying to ludicrously expand a provision that even the Founders were truly wary of. It is beyond sensibility and belief.

      • Desider says:

        1) I think I gave examples that try to go beyond the “all countries do it”, and looked for examples where the other country might be broaching the “levying of war”. I mean, technically from many definitions, a single guy sending a pack of drones to bomb can’t be “levying war” cuz it’s not an assembly of armed dudes, just 1 – but I think we might be able to adapt to that. But I don’t really care, since there are certainly other charges to bring, just losing the “nyah nyah” of being able to say “treason” officially. But pls note I specifically looked back 100 years to see how they understood this clause distinct from the current presidential crisis, because I *don’t* think it’s good to change the Constitution for every new crisis that comes along.
        2) oh, the Founding Fathers – the ones who left us with the poorly defined 2nd Amendment and stuck it to blacks & females for voting rights. Yeah, they had their good & bad days. In any case unless you’re an absolute literalist/original intent type, I imagine at some point you’ll accept that the concept & execution of war might be shifting over the centuries since the days of Bunker Hill. Not a complete out-of-nowhere departure, but a bit of difference to consider.

        • bmaz says:

          If you want to stand in denial of what is extremely established law, be my guest. It is somewhat bizarre, but okay. The definition of “war” has already shifted, and you seem unable to accept that within this definitional discussion. Toll away behind that false facade, the law stands in the face of emotion.

  71. orionATL says:

    p.j. evans- (12/[email protected]:21)

    yes, such as french and indian wars, actually, the french and indian allies vs the british, colonial, and indian allies (1756-1763). the times of james fenimore cooper’s “the last of the mohicans”.

    and the wars aainst the barbary pirates (1801-1805).

    • Tom says:

      And the Quasi-War with France in the late 1790s. America and her allies’ situation with regard to Russia and its various forms of cyber-warfare at present seems similar to that of the young Republic and the threat posed by Revolutionary France in 1797. “French [read Russian] tactics were to divide, subvert, and overthrow governments. Thus the state of half war that America was approaching was more dangerous than open hostilities, and infinitely more frustrating because the real enemy could not be confronted directly. As [Comptroller of the Treasury Oliver] Wolcott put it, “War may be compared to an acute but not mortal disorder, while foreign influence is to popular governments sometimes a slow, but always corrosive and fatal poison.” From Eagle and Sword: The Beginnings of the Military Establishment in America by Richard H. Kohn, 1975

       

       

  72. P J Evans says:

    @bmaz
    I don’t want treason to be broadly defined. I want people to acknowledge that the constitution doesn’t say what they think it says. I’d much rather see them cite the actual law. (Personally, I’d be happy with treason getting life without parole. I prefer the death penalty to be very very limited.)

    • bmaz says:

      What you are asking is the exact opposite, and that the Constitution, and its previous English law precursors over centuries, and the legitimate and directly on point stare decisis interpreting it in the US over hundreds of years be discarded for raw emotion. No, I will never agree with that.

      • P J Evans says:

        It’s sure nice of you to tell me what I’m thinking. /s

        That is NOT what I have in mind. My complaint, if you actually read it, is that people cite the Constitution when it’s not the rule that’s being used, and NEVER cite the law that actually applies.

    • Pat Neomi says:

      I think bmaz’s point is that the constitution is not the end-all-be-all of how one interprets this matter. The constitution is vague in many realms. Its meaning is fleshed out with both, a) statutory language and, b) the interpretation of this and the constitutional language via judicial precedent. It’s good to know the constitution, but it alone will not (in this case, at least) get you to the correct understanding. And FWIW, he did cite the literal, actual law above (18 USC §2381).

  73. Tom says:

    Wanting an elastic interpretation of treason because of anger towards Flynn seems close to Trump questioning how SNL can be legal.

  74. Pat Neomi says:

    Thanks for the clarification @bmaz (and the link to the Sir Michael Foster Discourse). The details of your post are important. Additionally, and perhaps even more importantly (since, as you state, the law will dispassionately chug along the tracks of stare decisis), your call to quell people’s emotionally driven need to paint actions (which likely will still be/have been deemed illegal) into a legal framework that clearly does not apply is greatly appreciated.

  75. Eureka says:

    @ Trip December 20, 2018 at 8:14 am
    What is with these people and their toilets? Fine, the throne-psych part I (barely) get, but toilets as cut-outs? I thought there was another costly Defense toilet job in the not-too-distant past (see also 32 fucking years ago*). And if Whitaker was any measure of a man, surely we’d’ve ended up having bought ‘his’ variety. Personnel infrastructure week (strike that), weak.
    I was reminiscing about the days of _four_-dollar screws.
    And yes, the proximately deadly graft is the worst.
    —————
    *$37 screws, a $7,622 coffee maker, $640 toilet seats; : suppliers to our military just won’t be oversold
    http://articles.latimes.com/1986-07-30/news/vw-18804_1_nut

    • Eureka says:

      @ cat herder, I set up a screws and toilets joke that you could best deliver (nevermind that I am late, reaching into the moonlight and you are done with this page). (apologies for ’70s tunes, folks. a brain-trap is a brain-trap.)

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