When a story doesn’t make sense, it typically means there’s something we don’t know. In the seemingly never-ending case of Lt. Gen. Michael Flynn, Trump’s first national security advisor who was ambushed by James Comey (who as much as admitted it) into an interrogation without a lawyer, Judge Emmet Sullivan has ruled so weirdly that it can only mean one thing: THERE’S SOMETHING WE DON’T KNOW.
A key piece is missing.
In breaking news Monday, Judge Sullivan denied Flynn’s motions to compel the production of Brady (exculpatory) evidence from the prosecution. His lawyer, Sidney Powell, had argued that prosecutors and the FBI withheld such evidence. In a 92-page ruling, Judge Sullivan said she’d failed to prove that the FBI withheld a single piece of exculpatory evidence that could exonerate him. Well, how can she until she sees what it is?
Sullivan has scheduled Flynn to appear for sentencing on January 28.
Flynn pleaded guilty in 2017, in a plea agreement negotiated by his previous legal counsel, to lying to the FBI about his conversations with then-Russian ambassador Sergey Kislyak. It was in a meeting set up casually –- at least it was made to appear casual –- over the phone by then-deputy FBI Director Andrew McCabe at the direction of Jim Comey, who later bragged about it on video before a live audience that laughed and clapped its approval. Flynn was told that the FBI just needed to resolve a few questions about some of his foreign contacts. When Flynn asked if he should have a lawyer there, he was told, essentially, “Nah.” He said to come on by.
This happened in the White House; I imagine an unsuspecting Flynn unpacking boxes in his brand new office. For all the details of what happened to Flynn, I highly recommend Lee Smith’s book THE PLOT AGAINST THE PRESIDENT. I wonder if Judge Sullivan has read this book; at the moment, it seems not.
Anyway, Flynn pleaded guilty, apparently because he had lost his house to pay legal fees and was tapped out, and there were reports that the FBI had threatened to investigate his son. Now Judge Sullivan is basically saying, “Once pleaded guilty, always pleaded guilty.” Yes, a guilty plea is a sworn statement, and I am not a lawyer, but there just seems to be something wrong here. Even after the horrendous misconduct that has been found within the FBI by Inspector General Michael Horowitz, Flynn is not being allowed to change his plea.
In December 2018, when Flynn was originally scheduled to be sentenced, Judge Sullivan reamed him out, accusing him of selling out his country, and reportedly seemed ready to send him to prison. But he delayed sentencing to allow Flynn to cooperate as a witness in the Virginia trial of his former business partner Bijan Rafiekian on charges of illegally lobbying for Turkey (I assume this is one of those FARA violations that prosecutors used to let slide but suddenly started getting serious about). But Powell reportedly stood up to prosecutors, telling them that Flynn would not testify to “knowingly” submitting false statements, and they decided not to call him as a witness. And in September of this year, a jury verdict that had convicted Rafiekian was overturned by a federal judge, so in the end, Flynn was not helpful. That couldn’t have been good for his own case.
In his ruling, Judge Sullivan even accused Powell of plagiarism in one of her legal briefs, when she maintains she cited and linked to the brief she was referencing.
Sullivan was terse: “The court summarily disposes of Mr. Flynn’s arguments that the FBI conducted an ambush interview for the purpose of trapping him into making false statements and that the government pressured him to enter a guilty plea. The record proves otherwise.”
Here’s the story as it broke on Tuesday…
I’ll bet Mollie Hemingway had to sit down when she heard this news. After the IG report revealed shocking misconduct on the part of the FBI, including a situation in which a lead FBI agent in “Crossfire Hurricane” was sent to “gain assessment” of Flynn and learn “Flynn’s overall mannerisms,” she wrote this in THE FEDERALIST: “So now we know that not only did the agents not detect any any signs of deception when they interviewed Flynn, but that one of the agents who interviewed Flynn had a prior baseline meeting with the retired general to assess his ‘norms.’ That same FBI agent compared Flynn’s conduct during the January 2017 interview to Flynn’s ‘norms,’ and at the time concluded Flynn was not lying.” I’ll bet she expected some leniency for him in light of Horowitz’ findings.
But Sulllivan was unmovable. So, since this doesn’t seem to make sense, what is it that we don’t know? Why couldn’t Sidney Powell get discovery of the potentially exculpatory material being held by the prosecution?
Well, whatever it is would have to be declassified. Attorney General William Barr has been given the discretion by President Trump to declassify anything he sees fit, but this material remains classified. There are still-hidden pieces of potentially exculpatory evidence that “directly relate to the prior DOJ and FBI motives in their investigation of Michael Flynn.” This is the kind of evidence Sidney Powell is seeking in her defense. But not only has Barr taken no action, he has actually gone to court to argue that he is under no obligation to provide this material to anyone, for any reason. He says that Trump didn’t order him to declassify, but just gave him the authority to do so if he was so inclined. Apparently, he’s not.
So, here’s one thing we don’t know: Why doesn’t he declassify this stuff? There are theories going around online, but I want to leave this an open question until we know more. There might be a sensible, innocent explanation for Barr’s inaction; for example, maybe he can’t declassify certain documents yet because of Durham’s ongoing investigation into FBI criminal misconduct.
Next question: If Barr won’t do it, can the President go ahead and do it himself?
Well, ponder this: The House is almost certainly going to impeach the President on Wednesday, for the laughably vague charges of “abuse of power” and “obstruction of Congress.” After this vote, if he declassifies anything, he’s almost certain to be accused of obstructing...his own impeachment. I know that sounds ridiculous, but Trump faced the same dilemma when Rod Rosenstein told him that any action he took to declassify material would be seen as obstructing the Mueller investigation. It was crazy then, and it’s crazy now. They’re trying to tie Trump’s hands AGAIN.
I suppose he could wait until the Senate dismisses the two ludicrous charges against him, and then, once it’s all over and the impeachment circus folds its flea-infested tent, declassify anything he wants. He could also pardon Flynn, with the blessing of millions, including me.
And then, the House just might impeach him again! But that threat won’t stop Trump from doing what he thinks is right, and that is one of the great things about him.