Out Like Flynn: How the Media Embraced Prosecutorial Misconduct As An Article Of Faith

440px-Michael_T_FlynnFor decades, the legal community has decried common practices used by prosecutors to coerce pleas from defendants. Prosecutors often stack up charges and then drain defendants until they agree to pleading guilty. There was a time when such abuses were regularly called out in leading newspapers. These are not those times.

The Flynn case was a textbook example of these abuses but media commentators quickly adopted the “anyone who pleads guilty must be guilty” mantra. Suddenly, the “proof is in the plea” regardless of false representations, withheld evidence, and conflicting findings in the Flynn case.

The only acceptable take in the media is that the motion to dismiss the Flynn case is an outrageous politicalization of the justice system. This narrative is only possible by ignoring the long-standing questions over the handling and charge in the case. Indeed, it is telling how both controlling law and countervailing facts have been uniformly (and knowingly) ignored in order to portray the case as a virtual immaculate prosecution.

Much of the analysis of the Flynn case notably starts half way across the field with the guilty plea of Flynn rather than at the start. the New York Times recently published an editorial entitled “Don’t forget, Michael Flynn pleaded guilty. Twice.” Such coverage pretends that there have been no questions raised about the underlying charge. The investigators concluded (and told FBI officials) that they did not believe that Flynn intentionally lied when he denied speaking about sanctions with the Russian ambassador. There was no reason to do so. Flynn knew that the FBI had intercepted the call and told the investigators that they could check the transcript. Moreover, Trump had publicly called for reexamining the entire Russian relationship, including sanctions. Most importantly, it was perfectly legal for the incoming National Security Adviser to encourage the Russians not to retaliate pending such a review by the incoming Administration.

While acknowledging that he failed to recall the sanctions discussion, Flynn contested the charge on the basis of intent and eventually spent virtually all of his money, including having to sell his house. He only pleaded guilty when the Special Counsel’s office threatened to charge his son and offered in exchange a plea to a relatively minor charge (with little or no jail time expected). What is striking about these facts is that analysts citing the plea routinely omit all of them to make the case look cut and dry. The issue was never whether Flynn’s statement was false but his intent and the materiality of the statement. Even though I supported the appointment of a Special Counsel, I raised these concerns years before the motion to dismiss was filed.

Nevertheless, the New York Times editors have warned “It’s hard to overstate how dangerous this is. It is a small step from using the Justice Department to protect your friends to using it to go after your political enemies. In other words, watch out, Joe Biden.” Of course, it was the Obama Administration with Biden as Vice President that started an investigation into its opponents based on Russian collusion allegations later found to lack any credible foundation. A long list of Obama officials admitted that they never saw any direct evidence of such collusion. Moreover, we now know that FBI agents early on warned that the material in the Steele Dossier (funded by the Clinton campaign) was not just unreliable and likely Russian intelligence misinformation. The Obama Administration still launched a full and long investigation of the Trump campaign and its officials. That was no “small step” but a giant leap.

As a criminal defense attorney, I have been personally involved in cases where innocent defendants must choose between effective bankruptcy (and the risk of a longer incarceration) against a plea for one or two counts. To his credit, Harvard Professor Noah Feldman was one of the few to acknowledge the problem of false pleas: “True, we all understand that, faced with the awesome power of prosecution, defendants sometimes plead guilty even if they aren’t. Liberals should be the first to acknowledge that in the real world, a guilty plea doesn’t necessarily mean the defendant committed the crime.” After acknowledging that reality, however, Feldman immediately dismisses it in a spellbinding level of circular reasoning: “But when the crime was lying, and the government still acknowledges that the defendant in fact did lie, there is less reason to worry that the defendant has been railroaded.”

Once again, the issue was never the falsity but the intent of the statement. Proof of a false statement to federal investigators under Section 1001(a)(2) requires more than a simple false statement. Rather, the false statement must be “material” to the underlying investigation. The motion to dismiss actually contained a discussion that has long been made by defense counsel as the correct reading of the law: “The materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular ‘subject of [their] investigation’ …[and] prevents law enforcement from fishing for falsehoods” to charge someone. Newly released documents show officials openly fishing for any criminal charge against Flynn long after the counterintelligence operation from no criminality. None of that evidence was put before the Court when it reviewed the Flynn plea, which was uncontested.

Moreover, the statement of the Justice Department should be celebrated by those who believe in due process for criminal defendants. The Flynn filing represents a powerful statement against prosecutorial coercion and abuse. It will be cited for years, including by this criminal defense attorney, in future cases. It is a powerful affirmation in a case with classic elements of coercive prosecutorial misconduct. Yet, the media has denounced it and the very notion of challenging trial prosecutors in such a case.

We now know from the Justice Department that both agents “had the impression at the time that Flynn was not lying or did not think he was lying.” It was not until much later that Mueller’s people decided to use the discrepancy for a charge. It is common for such false statements to be flagged to coerce defendants into plea agreements, the very point Feldman just made.

Notably, when Flynn was charged, Feldman explained that it made it more difficult for Trump to fire Mueller because “the content of the Flynn-Kislyak conversations deepens the narrative that special counsel Robert Mueller has been building.” There was certainly a narrative like that in the media, but there was no real evidence of Russian collusion. Indeed, at the time of the Flynn plea, Mueller already knew that. However, the key remains the “narrative” not the evidence.

These facts simply do not fit the narrative. Suddenly, the judge’s resistance to granting the motion becomes ignoble and, God forbid, Barr move could be viewed as noble. Likewise, while analysts and academics herald Sullivan’s tough scrutiny of the motion, none are asking why Sullivan did not appoint an outsider or anyone to look into credible allegations that the original prosecutors against Flynn committed serious constitutional violations in withholding evidence and misrepresenting facts to the Court. It is also not relevant that FBI officials involved in the Flynn case like former Deputy FBI Director were found to have lied repeatedly to investigators. It is easier to say that the “proof is in the plea.”

“In like Flynn” once meant that you lived a charmed life of access or success. Today, it appears the media has adopted a chilling “out like Flynn” view, meaning some people simply do not deserve fair judicial or media consideration. Indeed, it is now an article of faith to dismiss any question about the conduct of the prosecutors in the Flynn case, even if it means adopting the long discredited view that only the guilty plead guilty.

301 thoughts on “Out Like Flynn: How the Media Embraced Prosecutorial Misconduct As An Article Of Faith”

    1. “Our plea bargain system can make the innocent admit guilt.”

      For sure. And so can the Gestapo. They have their methods! Google how Obergruppenfuhrer Andrew Weissmann single-handedly destroyed Arthur Andersen and dozens of innocent people in the Enron affair, only to be overturned en masse on appeal.

  1. Let’s not forget the plea deal for Weinberger some ways back. Plead guilty to a misdemeanor or we charge you with 5 felonies. Which they ended up doing when Weinberger said no way.

    I am confident that had Weinberger not been independently wealthy he takes the deal. He could still be solvent after losing half his life savings. Although the whole process would probably have killed him as he was getting up there in years and was not in particularly good health.

  2. An Issue Turley Avoids:

    Pompeo Undermines His Own Denials Regarding I.G. Investigation

    Secretary of State Mike Pompeo issued his latest comments Wednesday in the growing controversy over his recommendation that President Trump fire an inspector general who has been investigating Pompeo.

    Pompeo’s defense basically boiled down to this: It couldn’t possibly have been retaliation, because I didn’t know what he was investigating.

    Except then Pompeo acknowledged that he might well have known that he was under investigation. And his explanation glosses over other ways in which the firing could have been retaliatory.

    Pompeo in his comments said that he should have pushed for Inspector General Steve Linick’s removal “some time ago.” Then he laid out his case for why this isn’t problematic.

    “I have no sense of what investigations were taking place inside the inspector general’s office,” Pompeo said. “I couldn’t possibly have retaliated for all the things I’ve seen — the various stories that someone was walking my dog to sell arms to my dry cleaner. It’s all just crazy.”

    Pompeo’s summary of what Linick was investigating was clearly meant in jest and dismissively. He lumped Linick’s probe of Pompeo allegedly using State Department staff for personal errands with a separate probe of an arms deal with Saudi Arabia that Pompeo approved.

    “I didn’t have access to that information,” Pompeo said, “so I couldn’t possibly have retaliated.”

    Except then, in almost the same breath, Pompeo admitted he knew about Linick’s probe of the arms deal the Trump administration struck with Saudi Arabia. That’s a deal in which Linick was examining whether it illegally bypassed a congressional block on arms sales to the country. The New York Times reported Tuesday that Pompeo had declined an interview in the probe but instead offered written responses to Linick’s questions.

    “There’s one exception: I was asked a series of questions in writing,” Pompeo said. “I responded to those questions with respect to a particular investigation. … I don’t know the scope. I don’t know the nature of that investigation — of what I would have seen from the nature of the questions that I was presented.”

    That’s a pretty substantial caveat. Pompeo one moment says he had “no sense of what investigations were taking place,” and then acknowledged he did in fact know about one of the two big ones.

    Pompeo insisted that he did not glean clues about the thrust of the investigation based on the questions received, but it’s difficult to believe they didn’t involve probing his personal actions and knowledge — given that would be the only real perspective he could offer. And if, in fact, Pompeo might be worried about anything related to that arms deal, he wouldn’t even need to know specifically what Linick was after; the presence of the investigation itself would be enough.

    Edited From: “Mike Pompeo Offers Another Defense In His I.G. Controversy, Then Immediately Undercuts It”

    Today’s Washington Post

    1. Paint Chips, the only error Pompeo made was not excusing himself in discussion with Xi and told him that he would have to wait on the phone until he could walk his dog. Then instead of one person taking the dog out to pee Pompeo could do it with his security team following him.

      Idiots are everywhere but there seems to be a hot spot in both the nail salon and at the Washington Post.

  3. Some vigorous back and forth in the comments. Keep reading that this trial is now in the “sentencing phase”…Well now, Sullivan has yet to rule on Flynn’s plea reversal, which was filed in January. Some serious pondering there…no sentencing is possible before that ruling on the substance of the trial…But everything that Sullivan is constructing now is seemingly ex parte and exclusively judicial. Criminal contempt and an examination of the merits of the DOJ dismissal. The Writ of Mandamus will fail because of political bias. The fun and games has barely started. This will not be resolved this year…

  4. CTHD to Hal: “It’s not a game. If you want me to provide evidence of something I said, all you have to do is quote my claim and ask me for the evidence, and I’ll provide it or honestly say that I can’t.”

    I am waiting for the “I can’t” part of your answer. Provide the lie Flynn made in context. I didn’t recall at the time is not a lie. Correcting a mistake doesn’t mean one lied. Forgetting something doesn’t make it a lie.

    The only thing that you have that falsely makes Flynn into a liar is your incredible ability to read everyone elses mind. That is why you do not feel the need to provide what Flynn said in context.

    1. Again: “If you want me to provide evidence of something I said, all you have to do is QUOTE my claim and ask me for the evidence, and I’ll provide it or honestly say that I can’t.”

      “[saying] I didn’t recall at the time is not a lie. Correcting a mistake doesn’t mean one lied. Forgetting something doesn’t make it a lie.”

      I haven’t said that saying “I don’t recall” is *necessarily* a lie, and I’ve never suggested that honest mistakes or memory failure are lies. But *sometimes* people say “I don’t recall” and are lying and later convicted of perjury: https://www.politico.com/story/2017/06/25/washington-defense-trump-russia-239914

      “The only thing that you have that falsely makes Flynn into a liar is your incredible ability to read everyone elses mind.”

      I have no idea what you’re referring to. How about you quote where you believe I’ve suggested that I have an “incredible ability to read everyone elses mind”?

      “That is why you do not feel the need to provide what Flynn said in context.”

      No, I resist your demand for a quote because there is no transcript of the FBI interview with Flynn for me to quote from. You are asking for something you (should) know I cannot provide. So I rely on evidence I *do* have access to, like the transcript from Flynn’s sentencing: https://www.justsecurity.org/wp-content/uploads/2018/12/121818am-USA-v-Michael-Flynn-Sentencing.pdf

      1. >>”“The only thing that you have that falsely makes Flynn into a liar is your incredible ability to read everyone elses mind.”

        >I have no idea what you’re referring to.

        CTHD, read my mind.

        “there is no transcript of the FBI interview with Flynn for me to quote from.”

        Then you need really top notch evidence to convict him. Let us hear that top notch evidence in context. By the way if Flynn knew this was an investigation he might have decided to have the discussion done in front of a lawyer in his lawyer’s office so he could tape exactly what was said. Then we wouldn’t have people like Stzrok adding things to the 302’s

  5. “Flynn denied knowing that the sanctions were planned”

    CTHD, not remembering or making an error is not a lie. Once again you have used a lot of words but nowhere are the words of Flynn in context that prove he lied in the legal sense. He-said She-said arguments do not prove anything.

    1. I agree that “not remembering or making an error is not a lie,” but he didn’t say something like “I don’t remember.”

      As I already quoted:
      “FLYNN noted he was not aware of the then-upcoming actions as he did not have access to television news in the Dominican Republic and his government BlackBerry was not working.”

      “He-said She-said arguments do not prove anything.”

      Our courts come to conclusions all the time when there is conflicting testimony about what someone said and did and there is no audiotape or videotape. It doesn’t matter whether you, personally, consider it sufficient proof. Witnesses testify under oath about what they heard and saw, they can be questioned, people make assessments about the number of witnesses and their credibility, … It’s part of the nature of our court system that the proof only has to be beyond a reasonable doubt in the mind of the judge (if it’s a bench trial, …) or jury. Judge Sullivan already determined it to be sufficient proof at the sentencing hearing.

      “the words of Flynn in context”

      The 302 provides the context and a summary of what Flynn said. If you’re looking for a transcript of the FBI interview and will accept nothing else, so be it. But our legal system doesn’t demand that.

      1. “I agree that “not remembering or making an error is not a lie,” but he didn’t say something like “I don’t remember.”

        CTHD, since you claim you know what he didn’t say you must know what he said. Let’s hear it. You know the question. I have asked it dozens of times and neither you nor anyone else taking your position has been able to produce in context exactly what Flynn said that was a lie.

        ““FLYNN noted he was not aware ”

        What did Flynn say. Don’t tell me what everyone else says. Don’t mind read. Tell us what he said and put quotation marks around the statnements.

        You are dancing again. You do not have the testimony necessary for a conviction that is proper. Witnesses, motive and other things all are put together. What do you have here. Statements that Flynn lied yet no one can produce what he said. All you do is repeat over and over again that he lied. That is not evidence.
        a”The 302 provides the context and a summary of what Flynn said. ”

        There are a lot of 302’s that reveal Flynn’s memory may not have been as good as you want, but that is his memory and that appears on the 302’s and in emails we hear an admission by Stzrok that he rewrote very significant portions of 302’s, we also know there was a degree of entrapment (listen to Comey bragging).

        Now you provide us with what Flynn said but you never will. You throw away the first agents assessment that he was telling the truth. Instead of reconning with the facts in a short time you will dance yourself away holding onto a false vision that you were denied your chance to prove Flynn guilty.

        1. Flynn’s counsel have asked to see the original 302. The FBI is stalling and Sullivan’s response was ‘sh!t happens’.

      2. Witnesses testify under oath about what they heard and saw, they can be questioned, people make assessments about the number of witnesses and their credibility
        _______________________________________________________

        There were no witnesses in this case, There was only the statement created by the DOJ which Flynn swore under oath was true and correct.

        Now both the DOJ and Flynn have given the judge evidence that the statement was not true and correct. So obviously both parties were either lying previously or both are lying now. The judge cannot at this point rely on statements made by either side.

        The judge does not have the original notes taken by the FBI or the transcript of the phone calls. I suspect Judge Gleeson will advise the court to order the DOJ to produce the evidence.

  6. “1) Trump stated he didn’t direct Flynn to discuss sanctions with Kislyak,”

    CTHD, that is between Trump and his advisor.

  7. Turley stumbles on to the only refreshing thing about this case. You got to see one of these plea farces on an upper income individual. Such tactics are usually reserved for the poor — disproportionately minorities.

    1. Such tactics are usually reserved for the poor — disproportionately minorities.

      Actually, in re poor people, they’re done assembly-line fashion by prosecutors who have dozens of cases in the hopper. When I worked at the Hall of Justice, an individual prosecutor would concluded 3 or 4 such agreements a week. Have a word with this fellow (https://www.the-american-catholic.com/) who does a mix of bankruptcy law and criminal defense. Or talk to Alan Dershowitz, who has a history with high-profile cases and defense at trial. The vast majority of defendants in ordinary criminal cases are guilty, guilty, guilty.

      About 60% of those convicted never spend a day in state prison. The mean time actually incarcerated for those so remanded is 30 months.

      The ‘disproportion’ is a function of who commits crimes, not how the system processes them.

      1. That is not how government works. You have it exactly backwards. First came the streamlining process. Then came the call for more arrests.

        You act as if the sentencing phase makes the assembly line process all right in the first place.

        1. The ‘call for more arrests’ came in response to street crime.

          The wag who referred to libertarianism as ‘applied autism’ had you guys nailed.

      1. There’s a threshold issue there. As to what exactly Flynn said to Pence who knows and who cares? The point is the phone call to Kislyak was entirely proper. Nobody has suggested otherwise. The fact that Flynn referred the agents who were asking what was said on the phone call to the transcripts of the phone, which he knew they had, really only leads to one reasonable interpretation here.

        1. Re: “Flynn referred the agents who were asking what was said on the phone call to the transcripts of the phone, which he knew they had…,” where is the evidence Flynn did that?

          Can you give me a quote from Flynn or a link to where he said it? I don’t see it in the FBI’s 302 for the interview (though perhaps I missed it), and I’m not sure what leads you to believe this.

          “As to what exactly Flynn said to Pence who knows and who cares?”

          Multiple people cared what Flynn said to Pence, as is clear from their statements about it the 302s that the DOJ appended to its Motion to Dismiss, from diverse testimony to the SCO and Congress, and from public statements by people in the Trump Admin. Some people were concerned that Flynn had lied to Pence, and the Russians knew this and could use it as leverage. Others might have just been concerned that Flynn was willing to make Pence look stupid on TV and willing to put Pence and Trump in the position of having to deal with an NSA who lied to the VP.

          Examples:

          Former Acting A.G. Yates testifying under oath: “We felt like the vice president was entitled to know that the information he had been given [by Flynn] and that he was relaying to the American public wasn’t true. And that created a compromise situation, a situation where the National Security Adviser essentially could be blackmailed by the Russians.” The “relaying to the American public” comment referred to public statements from Pence, like the one copied at the bottom of this.

          Trump said “I had to fire General Flynn because he lied to the Vice President and the FBI.” Pence said “What I can tell you is I knew that he lied to me, and I know the president made the right decision with regard to [firing] him.”

          Flynn’s lie to Pence resulted in Pence making false claims to the media, like the following on Face the Nation, on 1/15/2017:

          JOHN DICKERSON: Let me ask you about it was reported by David Ignatius that the incoming national security advisor Michael Flynn was in touch with the Russian ambassador on the day the United States government announced sanctions for Russian interference with the election. Did that contact help with that Russian kind of moderate response to it? That there was no counter-reaction from Russia. Did the Flynn conversation help pave the way for that sort of more temperate Russian response?
          MIKE PENCE: I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.

        2. Sorry, I just realized that you probably claimed “Flynn referred the agents who were asking what was said on the phone call to the transcripts of the phone [call], which he knew they had” because Turley asserted “Flynn knew that the FBI had intercepted the call and told the investigators that they could check the transcript.” Turley provided no evidence for his claim (no quote, no link, nothing), and unfortunately, he periodically makes false claims. Without evidence, I wouldn’t assume that his claim is true.

          Or do you have your own evidence for this?

          1. Commit’s statement confirmed:

            “A Republican effort to determine who may have leaked the name of Michael Flynn in connection to his 2016 contact with the Russian ambassador has centered on the question of which Obama administration officials requested his identity be “unmasked” in intelligence documents.

            But in the FBI report about the communications between the two men, Flynn’s name was never redacted, former U.S. officials said….

            “When the FBI circulated [the report], they included Flynn’s name from the beginning” because it was essential to understanding its significance, said a former senior U.S. official, who spoke on the condition of anonymity to describe sensitive intelligence. “There were therefore no requests for the unmasking of that information.”

            When told by The Post that the name was never masked in the Dec. 29 communication, a Graham aide said the committee would still like the Office of the Director of National Intelligence’s “written answer” to its question.

            The unmasking issue appears to be part of an effort by the president and his allies to tar former president Barack Obama with what Trump says was an unfounded criminal investigation into potential conspiracy between Russia and Trump associates — or what he now calls “Obamagate.” Obama is expected to be one of the most effective advocates for his former vice president, Joe Biden, in his bid to unseat Trump this fall.

            The president’s allies are casting the unmasking requests as evidence of a malign effort to damage Trump through leaks to the media.

            “They were unmasking anyone and everyone so that they could leak information to a press that was willing to take that illegal information to build a fake, phony narrative, to set up numerous people on the Trump team, not just General Flynn,” Rep. Devin Nunes (Calif.), the ranking Republican on the House Intelligence Committee, told Fox News last week.

            Some analysts, however, say the controversy is contrived.

            “This is apparently an effort to confuse the public by conflating routine and legitimate actions of unmasking Americans’ identities for intelligence purposes with the action of leaking classified information to the media,” said Ryan Goodman, a New York University law professor and co-editor in chief of the Just Security blog. “The timing of this effort, over three years since the leak happened, also suggests law enforcement and intelligence agencies are being used for political purposes during the election season.”

            After the list was released last Wednesday, Sens. Ron Johnson (R-Wis.) and Charles E. Grassley (R-Iowa) trumpeted the inclusion of Biden, who requested an unmasking on Jan. 12, 2017.

            Grenell’s move amounts to “selective declassification” for political purposes, said Sen. Mark R. Warner (D-Va.) in a letter to the DNI on Wednesday. He asked that “in order to more fully and properly inform the American people,” Grenell declassify and make publicly available “any intelligence report concerning conversations” between Flynn and Kislyak.

            AD
            Q&A: What is unmasking? Who does it and why?

            In that Dec. 29 call with Kislyak, Flynn discussed a set of sanctions ordered earlier that day by the Obama administration in response to Moscow’s interference in the 2016 presidential election. Flynn urged that the Kremlin refrain from retaliating, suggesting the new administration would be more accommodating.

            In mid-January 2017, Washington Post columnist David Ignatius revealed that Flynn called Kislyak several times on Dec. 29 and raised the question of whether sanctions came up. A few days later, Vice President Pence on national television said the timing of the call was “strictly coincidental” and that Flynn had assured him the two had not discussed sanctions. Later that month, in an interview with the FBI, Flynn again insisted he and Kislyak never talked about the Obama administration’s censure of Moscow.

            In early February, The Post revealed that Flynn had in fact discussed sanctions with Kislyak, kicking up a furor that led to his resignation. In December 2017, Flynn pleaded guilty to lying to the FBI; the Justice Department now is seeking to drop the case against him.

            https://www.washingtonpost.com/national-security/michael-flynns-name-was-never-masked-in-fbi-document-on-his-communications-with-russian-ambassador/2020/05/20/e94ee050-9a0b-11ea-ac72-3841fcc9b35f_story.html

            1. Yeah, in fact Comey had testified to as much (quoting from p. 60 of the Motion to Dismiss, in Exhibit 5): “We did not disseminate this [redacted] in any finished intelligence, although our people judged [it] was appropriate, for reasons that I hope are obvious, to have Mr. Flynn’s name unmasked. We kept this very close hold, and it was shared just as I described.”

        3. Another update, after someone kindly gave me some more info:

          The DOJ Motion to Dismiss says “Mr. Flynn, himself a former Director of the Defense Intelligence Agency, stated that he readily expected that the FBI already knew the contents of his conversations with the ambassador, stating: ‘you listen to everything they say,’” referencing Exh. 11, where Mr. McCabe wrote “On Tuesday, 01/24/2017, as [sic] 1235, LTG Michael Flynn called via secure phone from to my office number. … LTG Flynn then explained that he had been trying to ‘build relationships” with the Russians, and that he had calls in which he ‘exchanged condolences.’ He then stated that I probably knew what was said in these calls because, ‘you listen to everything they say.’”

          The last quote makes clear that Flynn said this to McCabe, not to the two agents who interviewed him in person later in the day, and with no explicit reference to a transcript. Unless you have better evidence, your claim that “Flynn referred the agents who were asking what was said on the phone call to the transcripts of the phone, which he knew they had” overreaches.

    2. You got to see one of these plea farces on an upper income individual. Such tactics are usually reserved for the poor — disproportionately minorities.
      ___________________________________________
      That is exactly why the plea deal has always been unbelievable.

      Its not just being poor that gets you railroaded like this. You also have to be pretty ignorant of the law and not have competent legal representation. That happens all the time, but it never happens to someone who has a lawyer that is charging millions. Never.

      We know the FBI investigators have stated both before the Flynn-FBI interview and after the interview that they had no basis to charge Flynn with a crime.

      Then the Trump DOJ kicks the FBI off the investigation and takes control and suddenly we are supposed to believe that without finding any new evidence they were able to talk Flynn into pleading guilty to a felony after the FBI had revealed publicly he had done nothing wrong,

      https://www.cnn.com/videos/politics/2017/02/16/fbi-michael-flynn-fbi-no-charges-lemon-sot.cnn

  8. “It’s hard to read all of his denials and know about his subsequent lies to Pence and not conclude that his intent was to hide what he’d discussed with Kislyak.”

    This is CTHD’s mind reading attempt to say: ‘let’s find a way of making Flynn walk into a perjury trap without ever stating the lie in context.

    1. “This is CTHD’s mind reading attempt to say: ‘let’s find a way …”

      How ironic that you claim I’m trying to mindread while you put words in my mouth. I do not want *anyone* to “walk into a perjury trap.” I have never suggested that I’d want that. I also don’t have any reason to believe that the FBI interview *was* a “perjury trap,” which has a specific legal meaning (it requires that there not be a legitimate reason to question the person and the person is questioned only with the goal of getting him/her to lie).

      I find your attempt to put words in my mouth — especially ones I disagree with — dishonest.

      I spoke to Flynn’s intent because I was responding to a statement from Turley about Flynn’s intent. The court case requires us to make judgements about Flynn’s intent.

      1. CTHD this is what you said:

        “It’s hard to read all of his denials and know about his subsequent lies to Pence and not conclude that his intent was to hide what he’d discussed with Kislyak.”

        You are claiming intent based on generalizations. That doesn’t lead to intent so you must be mind reading.

        You say I am putting words in your mouth. i reinterpreted what I thought you were saying and I think it was a correct intepretation. Let me repeat what I said: “This is CTHD’s mind reading attempt to say: ‘let’s find a way of making Flynn walk into a perjury trap without ever stating the lie in context.”

        Have you stated the lie requested countless of times? No
        Did Flynn walk into a perjury trap? Look at the hand written notes for a short walk down memory lane.

        ” I also don’t have any reason to believe that the FBI interview *was* a “perjury trap,”

        From the article I posted earlier:

        “What crime were they there to investigate? There wasn’t any. On Jan. 24, 2017, the FBI was set loose on Flynn. Since the only thing he was charged with was lying to investigators — and to our knowledge that’s what the essence of the interrogation was about — then the only reason to go there was to see if Flynn would perjure himself. They wanted to see if he’d lie or forget. There was no other reason to question him.

        That seems to fit the definition of a perjury trap — or else there is no such thing.”

  9. Thank you for this in depth analysis and break down of the facts, as now anyone can know by the public records. You will have to content yourself, Professor, with preaching to the choir, because we all know, that you can’t rouse a man who is only pretending to be asleep.

  10. I find it utterly astounding the court still doesn’t have the original 302 nor the original phone call transcript.
    Both of these gigantic and most pertinent issues point to the hilarity and utter clown world of the near omnipotence of prosecutor and judicial corruption.
    The basic evidence required for any judgement in the matter is still absolutely missing.
    I find that fact to be very often the case in many of the publicized goofball injustices we the public are accosted with on a near daily basis.
    I read through the entire body of comments and thank Squeaky Fromm and Allan and a few others I will fail to name.
    The level of injustice is incredible, displaying an empty weight plate, devoid of the “missing 302” and “missing phone call” has indeed proven justice to be utterly blind, a moron, guessing at it’s own utility and declaring itself infallible while bathing in absolute ignorance. It’s astounding, embarrassing, and criminally shameful.

    1. I find it utterly astounding the court still doesn’t have the original 302 nor the original phone call transcript
      _____________________________________________________
      And what is more astounding the Trump DOJ may be successful at hiding the evidence from the court forever.
      Judge Gleeson also posed that questioned in his op-ed.
      Why is the court being asked to rely on conflicting statements by the prosecution about the evidence. The court needs to see what is contained in the FBI’s original notes and the transcript of the call.

  11. Professor Turley makes it official.

    The “fake news,” propagandist, indoctrinating, mainstream media are complicit in and accomplices to the crimes of the communists

    (liberals, progressives, socialists, democrats, RINOs).

    The MSM is allied with communism, the mortal enemy of American freedom, American free enterprise and America itself.

  12. This president and his cabal are above the law, so says the AG and the republican party. So why don’t we get rid of that G##D### piece of paper at the National Archives and lock it up with Trump’s political and personal enemies. His job would be a whole lot easier if he didn’t have to preserve, protect and defend that worthless check and balances thing. And all that other crap that Trump has no time for.

  13. Guy that pleaded guilty only because it was costing too much money somehow finds a way to hire a new set of lawyers and start the whole process over again.

    And conveniently, the Special Prosecutor, having collected this guilty plea, has closed up shop and prosecutors who refuse to drop the case are removed so now they have only Trump sycophants to argue the prosecution case before the court while Trump wants the whole thing to go away.

    Any decent defense attorney can make a case for prosecutorial misconduct in pretty much every case, of coercing a plea bargain by threatening bigger charges and an expensive trial is considered prosecutorial misconduct.

  14. While I disagree with the actions made by Judge Sullivan regarding the amicus appointment, I am curious as to how it relates, if at all, to a judge’s ability to declare manifest injustices and rule outside what the prosecution or sentencing guidelines propose.

    Namely also where a judge can declare a plea arrangement to be a manifest injustice and void the arrangement, a judge can hold that it is either too lenient to harsh and proceed with trial or force another negotiation

    1. Just a guess, but when a plea leads to a manifest injustice it seems to be within the scope of traditional equity powers to void the agreement. Equity comes into play when the law fails. It is easier to see this applied when the injustice strikes a known individual, the defendant, than when it is a general inustice to society as a whole when the agreement is thought too lenient. But even then…. A lot of research could be done on this issue.

      In Flynn’s case the judge seems determined to maximize the injustice rather than to abate it.

      1. It seems that the ethic that everyone deserves equal treatment under the law is hitting a dead note in too many Americans.

        1. Wait. Are you related to Mimi? Oh, and speaking of too many Americans, did you read today that the American fertility rate, already in a “death spiral,” fell even further. It never ceases to amaze me. Women are out doing all kinds of things while Americans vanish. You don’t suppose the American Founders were onto something when they denied women the vote? What good is the vote when you don’t have a country and, I’m just guessing here, you don’t have a country when you don’t have citizens and you don’t have citizens when women don’t make them – in abundance, sufficient to grow and defend the country. Is it ethical for women to abandon their duty to make the country and go out and act like men? Another wild guess, bearing, nurturing and educating a legitimate, viable and sufficient number of kids is a full time job. Sorry, sometimes I get so confused especially when I see the 19th Dumbmendment in action.

      2. Literally everyone has respected Judge Sullivan in the past, and praised him for his long career and great reputation. What the hell happened? Have they got his family tied up in the basement or some video tape of him that would take him down? Something is forcing this guy to be an a-hole. I’d be interested in what flipped him.

        1. Like Colin Powell, Comrade Sullivan is down for the struggle after projecting a congruous and conservative image to Ronald Reagan, suckering him into support as affirmative action. Smiling faces tell lies, right?

        2. I’ve never heard of the man. As far as I can see, he was a very ordinary lawyer elevated to the federal bench because he had an influential sponsor.

      3. In Flynn’s case the judge seems determined to maximize the injustice rather than to abate it.
        _________________________________________________________________
        There is no evidence for that claim.

        The judge wants to know how this fraud ended up in his court so that it does not ever repeat.

        1. The judge wants to know how this fraud ended up in his court so that it does not ever repeat.

          Is there evidence of that claim? Is it Sullivan’s job to keep a fraudulent case open so he can investigate the fraud on the court? Or is his job to rule on the facts before him?

          1. Is it Sullivan’s job to keep a fraudulent case open so he can investigate the fraud on the court?
            __________________________________________________________________
            It is his job to make sure his courtroom is not a warm and inviting place for the DOJ’s fraudulent cases. I suspect at a minimum they will think twice about doing it again.

    2. In such cases it is particularly important that not only justice be done but that it clearly be seen to be done.

      Neither is true with Sullivan’s decisions.

  15. Turley says: “Of course, it was the Obama Administration with Biden as Vice President that started an investigation into its opponents based on Russian collusion allegations later found to lack any credible foundation.” Credible to whom? A shill for Trump? And, as has been repeatedly pointed out, the Mueller investigation was not started because of the Steele dossier. But, correct me, please if I am mistaken: didn’t Sessions (appointed by Trump) recuse himself and appoint the Special Prosecutor? Wasn’t it the Trump Administration’s Special Prosecutor that carried out the investigation? That statement quoted above is clearly and intentionally misleading. Joe Biden had nothing to do with the Mueller investigation, and Turley knows it.

    OK, Jon, how much foundation can an investigation have when the main subject–i.e., Trump, refuses to cooperate for a deposition, has his lawyer answer interrogatories incompletely and refuses to amend or supplement, and won’t turn over documents? What about the American intelligence community’s unanimous opinion that Russia did, indeed, help Trump cheat to win? Are they lying? How did Russia get information from Trump’s campaign, based on insider polling as to what lies about Hillary Clinton could sway certain voters, for Russian hackers’ use in targeting Hillary Clinton via social media in key districts that could turn the Electoral College? Are you trying to say Trump and key members of his campaign didn’t know anything about this? Mark my words: the truth will eventually come out. It usually does.

    Now Turley’s trying to make the case that Flynn is a poor widdle victim of prosecutorial abuse: he either “forgot” about meeting with Kislyak to discuss removing sanctions imposed by the Obama Administration; or his lying wasn’t material to an investigation, and anyway, it was costing too much money to defend himself, and he was “set up” because the FBI already knew he was lying. Sorry: that manure won’t fly. Flynn admitted, in writing, and orally to Judge Sullivan that he lied and that he was pleading guilty “because I am guilty”. Not only that, but as part of the plea deal, he was let off on charges that he was a highly-paid “consultant” for Turkey, which he failed to disclose, and which is also a felony. Turley doesn’t mention or discuss this trade-off.

    All of this is, of course, the daily pivot away from the scandal du jour: Pompeo courting future Senatorial campaign contributors on the taxpayers’ tab at intimate little Secretary of State dinners. Guests included Republican members of the SCOTUS, Reba McIntyre and those religious zealots who own Chick-Fil-A. What do these people have to do with international diplomacy, which is supposed to be the justification for taxpayers covering the cost of these elaborate affairs? Not a damn thing. I honestly don’t know how these people can stand the sight of themselves when they look in a mirror, given the fact that lines for food relief all over this country go on for miles and miles, and yet, they take our money to wine and dine future campaign contributors for Mike Pompeo.

    1. The factual sloppiness – always in Trump’s favor and against Democrats – in JT’s columns is over the top. As you note, Obama and Biden had nothing to do with the Mueller investigation. It is also true that it was never about “collusion”, an a-legal term explicitly called out by Mueller under oath as not their target. For anyone this getting ridiculous, but especially a law professor.

      1. Thank you for demonstrating how thin the dedication of too many Americans is, to the fair play, even for one’s opponents.

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