The Bigger Threat for Flynn than Six Months in Prison: the Counterintelligence Language

As I laid out in this post on the government sentencing memo for Mike Flynn, they basically gave Judge Emmet Sullivan all the justification he’d need to throw the book at Mike Flynn, certainly a few months in prison and maybe more.

But that may not be the most worrisome stuff in this memo, particularly given Robert Mueller’s statement, in July, that the FBI continued to investigate aspects of Flynn’s false statements about Russia.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.


MUELLER: Currently.

The Flynn sentencing memo, for lying about whether he had discussed sanctions with Russia, speaks over and over again about the questions I laid out here: why Flynn lied and whether he did it on Trump’s orders, questions rather conspicuously not answered in the Mueller Report.

On top of repeatedly referring to the “FBI counterintelligence” investigation, for example, for the first time I remember, the government discusses the scope of the inquiry to include whether any Trump associates took actions that would benefit Russia (the Mueller Report did say that it did not establish “coordination” trading Russian assistance during the election for favorable treatment in the future, though there were temporal limits on the scope of that part of the investigation, not including the transition).

The inquiry included examining relationships between individuals associated with the campaign and the Russian government, as well as identifying actions of such individuals that would have benefited the Russian government.

Much later, the memo describes undermining sanctions — what Flynn did, then lied about — as possible evidence of that kind of benefit to Russia.

The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

The sentencing memo even raises the import of who directed that Flynn ask Russian to hold off on retaliating on sanctions — again, something very pointedly not answered in the Mueller Report, but the answer to which might either be “because Trump ordered him to” or “because then counterintelligence suspect Mike Flynn was acting as an Agent of Russia.”

Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

After raising the import of benefits to Russia like undermining sanctions, the sentencing memo also focuses on why Flynn lied, something else that has not been fully explained.

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

The sentencing memo describes how the Intelligence Community Assessment raised the stakes on Russia’s actions in the immediate wake of his sanctions call with Sergey Kislyak and how Flynn started lying shortly thereafter and just kept on lying. But that doesn’t explain why he lied in the first place — or why he and KT McFarland created a false paper trail immediately after Kislyak informed Flynn they would not respond.

In one of the memo’s most scathing passages, however, it ties Flynn’s lies — about both Turkey and Russia — to monetizing his influence and power.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it. [my emphasis]

This may just be shorthand or an attempt to spin both Flynn’s charged lies in most damning light (though this filing has been reviewed with such attention that the government had to get two extensions for the necessary review). But the passage suggests he was engaged in sleazy influence peddling both when he secretly acted as an agent of Turkey while serving as Trump’s top national security campaign advisor, and when he took a call during the Transition and worked to undermine President Obama’s sanctions on Russia. The first is obviously influence peddling, and its import for national security is also fairly clear.

It’s also obvious how the second — Flynn’s attempts to undermine sanctions — compromised national security. The effort basically attempted to eliminate any punishment for Russia’s attempt to pick our President.

What’s not clear, however, is whether (and if so, why) the government includes his calls to Sergey Kislyak in a passage describing him “monetizing his power and influence.”

And Flynn should have known better, the memo implies. Among the reasons why Flynn’s extensive government service is so important, the government explains, is that he should have known the counterintelligence danger from Russia.

The defendant’s extensive military record, as described in his prior sentencing submission, presents a clear factor in mitigation. See Def. Sent’g Mem. at 7-12. However, that extensive record and government service, at the highest levels of the national security apparatus, and his “many years” of working with the FBI, should have made him particularly aware of the harm caused by providing false statements to the government. See id. at 13. That work also exposed him to the threat posed by foreign governments, in particular Russia, seeking to covertly influence our government and democracy.

The sentencing memo gives Emmet Sullivan lots of reason to want to punish Flynn more aggressively than any of the other liars busted by Mueller. In does so, in part, by laying out the stakes of his sleazy influence peddling, describing how it made the country less safe.

And then, the memo notes the Russian government continues its attempts to interfere in “our democratic process,” something that is broader than elections.

The sentence should also to deter others from lying to the government. The FBI protects our homeland from terrorism, espionage, cyber-based attacks, and all other manner of threats. Lying to the FBI, in any context, cannot be tolerated. That is particularly true in a counterintelligence investigation targeting efforts by a foreign government to interfere in our democratic process—a threat that continues to this day.

The sentencing memo argues that Flynn’s lies made it harder for the FBI to protect the country from Russia’s efforts to undermine our democracy and speaks obliquely in terms of benefit and monetization. These oblique references to the counterintelligence investigation ought to be of far more concern to Flynn than the prospect of six months in prison.

44 replies
  1. Rugger9 says:

    Could Sullivan go beyond six months for sentencing, given how Flynn added to his stack of legal fibs under Powell’s watch?

    • P J Evans says:

      I gather it’s something that Sullivan could do, but it’s not usual. Flynn would really have had to have f*cked it up.

    • Drew says:

      I have wondered that myself. I’m sure that the lawyers would tell us that it is highly unlikely that Sullivan would go beyond the guidelines. The only way that Sullivan would do that is if he judged that there were aggravating factors beyond what the guidelines considered. I don’t think that there is any absolute constraint keeping him from adding time up to the 5 year statutory limit for this crime, except his need to be consistent and objective as a judge. He did seem to be quite ready to go beyond the Government’s recommendation a year ago, so I don’t know whether he will this time. I expect that 6 months is higher than most lawyers expect, but that he might come in near that.

      • emptywheel says:

        That’s right, on all counts. I think Sullivan might be tempted but he’s more likely to be reversed on appeal if he does something unusual.

        • Frank Probst says:

          As you pointed out in your last post, Flynn either perjured himself in his allocution in front of Sullivan, or his lawyers have been making false statements in his filings. I think it’s very likely that Sullivan will swear him in again and ask him the same questions as last time. What happens then? He either admits his guilt after a bunch of filings said he was entrapped, or he goes with what his filings have been saying, which amounts to perjury. If the judge thinks Flynn perjured himself, how is that handled legally?

  2. tinao says:

    This is music to my ears! I do hope he gets a decently long jail sentence. Could you imagine what you or I would get for doing something comparable? The fact he had such high security clearances certainly should, in my opinion, make his actions close to treason. I am really tired of this kind of shit being normalized! Just like tort law, something has to be a deterrent for fools such him.

  3. misteranderson says:

    I have a vague memory of reading somewhere that while Flynn was being paid by Turkey, someone traced a source of that money to a Russians. Does anyone know if that’s true?

    • William Greenan says:

      The Turkish gentleman who paid Flynn has been seen in hotels and events with a
      RU oligarch. They deny doing business together but appear in many different places at the same time.

  4. tinao says:

    Totally OT, but oh yeah Nancy, you better damn well hold onto those Articles of Impeachment. The asshole, or should I say shithole, is trying to duck impeachment by starting WW111.

  5. Tommy D Cosmology says:

    Can you imagine if the tables were turned? If those knuckle-dragging, drooling, TEA-banging, bigoted, f-ing morons (the likes of Trey Gowdy or Jim Jordan, pounding their fists, claiming to be taxed enough already, not owing anything to society, yet judging everyone else) had 1/10th of 1/100th of this material to work with? I mean actual facts that someone in Clinton’s campaign was scheming to circumvent foreign policy to benefit an adversary? Like sanctions against Iran? And a General?? Hell, some coffee boy, even? They’d be hanging people on fire in the streets for treason.

    • Gary Nason says:

      I hear these “what ifs” all the time. So why aren’t any prominent Democrats pounding the table like Jordan and Gowdy? Is it some false sense of decency?

      • Tommy D Cosmology says:

        I think about this a lot and have made the following (potentially incorrect) calculation:
        Liberals need to call out conservatism for the piece-of-shit set of values it is and the lousy excuses it provides for prejudice and abject greed.

        True, many will be offended and harden their position. They can go fuck themselves in a basket to hell.

        It’s the people on the fence that are in play.

        The harder conservatives become, the more salient their primitive, fight-or-flight, self-serving, and inferior values become. The likes of Jordan and Gowdy are fundamentally shitty people, hell Jordan’s whole career has been to defend even shittier people, mostly sexual predators, go figure.

        So, to answer your question, “Should liberals pound our fists…”. Yes. But our outrage should be at the people who are still on the fence, the people who are otherwise decent human beings except for their membership in the cult-like fraternity of bigots and people so greedy that they would knowingly hurt others for their own financial or political gain.

  6. G Proust says:

    And not even mentioned: that Flynn was working to kidnap and send-to-torture the cleric, Fethullah Gulen, to Turkey. To enrich himself. And his son.

  7. MattyG says:

    Any indication from the documents how “live” the ongoing CI investigations are? As it appears Flynn is one of the targets are CI investigations the kind of thing likely to resurface as future indictments? At least in the case of Flynn – or is that exactly what you mean by Flynn should be more worried?

  8. blauschwein says:

    The commentary notes that Flynn’s malfeasance made it hard for the FBI to defend America – but it’s unclear that ‘the’ FBI has any actual interest in this mission. What this sordid affair points out is that the FBI as an institution suffers from an appalling lack of discipline, principle, and purpose. They did as much as Putin to undermine our polity and national security.

    • bmaz says:

      Hi there D4vid, why are you using a sockpuppet handle like “blauschwein” suddenly? We do not permit that. Please be consistent so that people know who they are dealing with. As to your main comment content, that is ridiculous. Most FBI personnel are very much intent on defending the US. Thanks for weighing in with some generalized bunk though.

      • earlofhuntingdon says:

        Interesting vocabulary: “discipline, principle, and purpose,” and use of the Oxford comma. The emphasis on Ordnung, and the claim that the FBI hasn’t enough of it, suggests pretty hard right views.

        Separately, I’m amused that the MSM continues to expect Trump to show up at 11 am for an 11 am press conference. He hates them for a host of reasons and is always late. Moreover, his normal “executive” time does not end until noon, so enjoy another cup of coffee journos.

  9. skua says:

    Whilst Flynn might only get 5 months from Sullivan, he will have a prior conviction if he faces sentencing for a CI related charge (or charges).

  10. Bill Durbin says:

    I wonder if Marcy might want to comment on the story out this morning claiming that Russia was of little consequence in the election of Trump. The Facebook executive makes the bald claim that Facebook was responsible for Trump’s election.

    • Susan Galea says:

      Arguably Facebook was partially responsible for Trump’s election- acting as a cut-out for Russians, ensuring their hidden identity, and thus offering them the facility for plausible deniability.

    • sproggit says:

      Facebook claims to be a data-driven company. One of their executives has just made what I’d classify as a pre-emptive strike type of a statement [conveniently “for internal consumption only” – until publicly released] that basically claimed “the Republicans won in 2016 because their marketing campaign on Facebook was second-to-none”.

      Come on.

      It’s like saying, “If you want to win the next election in your (country/state/municipality) then all you gotta do is spend all your advertising budget with us. Oh, and by the way, if a bunch of non-Republicans spend a truck-ton of money attempting to help Trump get re-elected, that isn’t foreign influence that we should have been detecting and stopping, that’s a superlative digital media campaign from the Republicans…”

      Seriously [only briefly]: Facebook as a company and Zuckerberg as an individual pride themselves on being purely data-driven. No executive of Facebook is going to make a statement like that [internally or externally] unless they can back it up with data.

      So, in response, I would say, “Talk is cheap. Show us the data.”

      Then we can all sit back and enjoy the deafening silence coming back at us.

  11. klynn says:

    Is Sullivan able to inquire about ongoing investigations in his process of determining sentencing?

    I assume no but IANAL.

  12. earlofhuntingdon says:

    Trump’s intense stare at the monitor suggests he’s working hard to stick to the script. That usually means he does not believe much of what he’s reading. But, “Toler-eye-ted?” “Our missiles are big powerful lethal and fast…,” sounds like a Freudian slip.

    He’s done. His delivery was labored and slow, as if he were medicated or speaking phonetically without understanding the words. He takes no questions. The podium under him rotates 180 degrees and its motorized track takes him out through the tall mahogany doors at the rear. Either that, or his lopsided walk/limp suggests physiological problems on par with his mental ones.

    The speech I understand as a diplomatic message to Iran that means, thanks very much for playing, we’re done with this round. But Trump often reneges on what he says in speeches.

    • earlofhuntingdon says:

      Also, Trump was breathless, even when delivering his speech at a deliberate pace. He used to race to get his word jumbles out, as if he were auditioning for a Howard Hawks film. His lung capacity seems compromised.

      Maybe that partly explains the silent cohort of senior officers bookending him like a pair of crutches. Like everything about this administration, Trump seems to be falling apart before our eyes.

      • Jenny says:

        Lights, camera, action … Big production. He stuck to the script with 11 cast members behind and beside him.

        Remember he went to Walter Reed for an unscheduled Saturday, 17 November visit. First WH said an annual physical then “interim checkup” by physician two days later.

        As Dr. Sanjay Gupta said:
        “We know that Trump is 73 years old, has heart disease and is clinically obese. For any man of that age and medical history, an unexpected visit to the hospital is concerning.”

        • P J Evans says:

          “Heart disease” is a very general phrase. It’s the kind and the degree that are important: we don’t know that, and his doctors aren’t saying.

  13. Manqueman says:

    Flynn was so vile that he managed to get Obama to fire him. As documented, Obama tolerated a lot of abuse without doing anything. And that Flynn is crazy enough to do what he what he’s accused of doing, I can see him having so little self-control as to do everything he’s accused of here, including going rogue on policy because the payoff is worth it. (OTOH, I wouldn’t completely eliminate inspiration from Trump and/or trying to impress Trump.)

    • tinao says:

      The man believes conspiracy theories as opposed to our intelligence community. This may well be cover for doing puttin’s will, but either way how is our country served? Then there are the physical health issues. My guesstimation on the visit to the hospital is a stroke. Take your pick or combine the two, he is mentally and physically unfit .

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