Topics of Discussion:
Andrew: Hey everybody, I just wanted to tell you how proud Thomas and I are of our listeners. At least hundreds, possibly thousands of you, made the effort to call your Senators and tell them that you wanted to hear from witnesses during the impeachment trial. Obviously that vote came Friday night after we recorded this show and we lost 51 to 49. That sucks, and there is no spin that I can put on that, but I do want to share something that Erica Goddard wrote in our Facebook community that really helped me, helped remind us of our mission with this show.
She says: “You told us after the 2018 elections why we had cause to be proud of the results. We fight the holding actions, we get to November 2020, we keep the momentum of 2018 going.
Tonight, we mourn, but Tomorrow, we look for the next holding action, the one that helps us get to November. We build an America we can be proud of again.
When you despair, remember this community you have brought together. Remember those you have helped teach. The legal profession will feel the impact of your work as those studying law in this group pass the Bar and move forward. Other professions will feel the impact of a better educated populous who understand the world and the law.”
Thank you Erica! Please do, folks have continued to share in the Facebook group, on Twitter, elsewhere, send us an email if you’re not a part of either of those groups and tell us when you go to law school, when you graduate, when you pass the bar, when you get your jobs. We love those stories and I promise that we’ll continue to do what Erica said. We are looking for new and creative ways to try and keep breaking down the law for you, and as the other side tries to break our institutions we will keep standing up for them. Even when the answers aren’t what we want to hear, I do still believe we make the world a little bit better every time we make it a little better educated.
So we have an example of that today, we’ve got a great interview with journalist Marcy Wheeler, that’s about the Michaele Flynn case, it’s about the state of the DOJ and her belief that people will face consequences. We’re gonna continue to break down the law and identify what we need to do in order to move forward.
Thanks again, thanks to all of you, we’re gonna help continue to fight on.
Thomas: Hello and welcome to Opening Arguments, this is episode 356, I’m Thomas Smith, that over there is P. Andrew Taurus, esquire. How’re you doing?
Andrew: [Laughs] I am fantastic Thomas, very very excited about today’s episode. How are you?
Thomas: The same! Wow, are we the same person? Hold on-
Andrew: We might be, we might be the same person.
Thomas: -if I lift my arm does your arm lift?
Thomas: I feel the same way! I’m excited to speak to Marcy Wheeler, that’s gonna be – hoo! That’s gonna be a couple law geniuses interacting, we’re gonna have to, everybody put on your thinking caps ‘cuz [Laughs] as often happens when Andrew, super smart guy lawyer, gets another super smart law person on it’s a treat.
Andrew: Yeah, she’s not a lawyer too, by the way.
Thomas: Not a lawyer, but insanely brilliant when it comes to matters of law, which, you know, I guess that gives us all something to aspire to someday. Alright, but before we do that I know you had a little announcement about a later topic?
Andrew: Yeah, I bumped this to make way for Marcy, but I have, thanks to intrepid associate Morgan Stringer, I’ve got some fantastic research on the Equal Rights Amendment. This is a question that’s come up, the Virginia State Legislature just ratified the Equal Rights Amendment and there are a ton of questions about what that means. Is it effective after four decades?
Thomas: I think that means it’s official rad, right?
Andrew: We’re gonna find out exactly what-
Thomas: Equal rights are rad! We declare!
Andrew: [Laughs] “Rad” I think postdates the hay day of the ERA, but I have some great research, I have some great stuff to share about where that is headed and we are gonna do that real soon now, I promise.
Thomas: Yeah, yeah, right after baseball law, which I really want to get to.
Andrew: Yeah, that may be in the same episode.
Thomas: Yeah! [Laughs] We’ll get to that when we can. Alright, well that being said, we need to get Marcy Wheeler on the line so here we go!
Interview with Marcy Wheeler
Thomas: Alright and we are joined by Marcy Wheeler. Marcy, how are you doing today?
Marcy: Doin’ alright.
Thomas: Wow, we are so happy to have you.
Andrew: No, I am very very excited. We are huge fans of your blog, emptywheel.net, we followed a lot of your reporting on the Mueller investigation and you and I had a slightly different take on what’s gonna happen to Lt. Gen. Michael Flynn. Let me set that up a little bit, and if you disagree with the foundation then please feel free to jump in but then I wanna get to your thesis.
So just to recap, we’ve covered Flynn on the show a bunch. In December of 2018 the government filed its initial sentencing memorandum and Michael Flynn pled guilty to one count of providing a false statement in connection with lying about his contacts with Sergey Kislyak. At that time the government said look, we are gonna evaluate and file what is called a 5K1.1 motion for downward departure from your sentencing if we believe you render substantial assistance in other prosecutions and also are prepared to acknowledge a 2 to 3 level reduction in your sentence for acceptance of responsibility.
Essentially what transpired at the time was that the court, Judge Emmet Sullivan of the U.S. District Court, District of Columbia, somebody in front of whom I have practiced, have a current case that’s pending, said look, Flynn’s cooperation is still ongoing, so let’s let him complete that cooperation-
Marcy: Can I interrupt?
Andrew: Yeah, please, go right ahead.
Marcy: Very critically, before that happened Emmet Sullivan made it clear that he was – he later said disgusted, but he made it clear that he was disgusted by what Flynn had done and said he had arguably sold out the country. So the reason he encouraged Flynn to finish his cooperation was because he was gonna send him to jail or prison at that point because he was so angry that a General had sold out his country. That’s what led him to say why don’t you keep working on this so you have something to talk me down off of sending you to jail?
Andrew: [Laughs] And I don’t disagree with that from the perspective of color. This has been quoted, that was Judge Sullivan saying “are we sure that this isn’t treason?” So I think that is absolutely fair characterization of Sullivan’s state of mind in December, 2018.
So flash forward six months and Michael Flynn fires my friend, Rob Kelner, and hires – Brian I guess you’re gonna have to bleep this, but dipshit Sidney Powell-
Thomas: No that’s good. Keep it in.
Andrew: [Laughs] And begins saying unbelievably stupid things in public. Those stupid things materially prejudice the government’s ability to prosecute the Rafiekian trial. Now we fast forward to, it’s a year later, Mueller investigation’s over, the Rafiekian trial is over, and so Flynn’s cooperation is now done. On January 7 of 2020 the government filed a supplemental sentencing memorandum.
In that, and here we may have another point of disagreement but I viewed that memorandum as essentially setting forth two things. First, it says okay, we are seeking a sentence within the guidelines, we no longer believe that Flynn deserves any credit for acceptance of responsibility and explicitly urges imprisonment. So page 26 of that, at the end there’s a 33-page memorandum, says in kind of going through the factors (quote) “Similarly situated Defendants have received terms of imprisonment.” That’s point one.
Then point two, and we could quote but I wanna bring you in Marcy, revokes the notion that the government is going to move for a downward departure and I think in three or four places suggests to Judge Sullivan that an upward departure from the sentencing guidelines might be appropriate in light of the totality of the circumstances. A sentencing guidelines range would be zero to six months in prison for somebody with no criminal history for a single count of giving a false statement to a government investigation. What do you think of that? Fair characterization?
Marcy: Fair, but another thing that happened along the way – well, two things. One is what Flynn did, particularly last summer, was the prosecution argues renege on some statements he had made about Kian.
Marcy: So in other words, he had backed off statements that they had built their case around his former business partner on. When Sidney Powell first started arguing that the government was trying to force him to lie in the Kian trial, the government laid out then evidence without pulling out his grand jury testimony – oh sorry, Powell showed “here’s the notes from Covington” and even at that point it was clear he was telling Covington stuff that wasn’t true. So he was reneging on his statements that would get Kian prosecuted and so screwed up their case.
Then based on the claim that the government was trying to get him to lie about Kian, then Powell said “I have to withdraw this plea deal.” I mean, she was looking for any purpose, any excuse to do that, but ultimately it came down to her claim that the government was asking him to lie on the stand in the Kian trial. That’s really important because the government [Sighs] at every step has given Sidney Powell warning not to go where she’s going.
Marcy: And one of the things they did was release his grand jury transcript, which made clear what the Covington notes already made clear, which is that what prosecutors wanted him to say last summer is completely consistent with his sworn statement to the grand jury. So in the post that I’m writing right now I’m cataloging the sworn statements he made, and by the time the sentencing memorandum you just described gets in place he has twice pled guilty to the Russian lie-
Marcy: To the lie to FBI agents on January 24, 2017, and he has stated under oath, to the grand jury, that he knew the Turkish government was his client the entire time, that he had no idea what the op-ed was, that is central to the whole FARA case, until Kian sent it to him drafted, it wasn’t his idea. Those two facts are in conflict with everything that Sidney Powell had been arguing since last summer.
So that already said, her claim that she was gonna withdraw the plea based on a claim they were trying to get him to lie was itself a claim that Flynn had lied when he pled guilty twice, which I think people are aware of, but also that he had lied to the grand jury when he testified to these things about Turkey. That’s where the government was when they submitted that sentencing memorandum.
Andrew: I agree with that 100%, and I really appreciate the additional depth with respect to that background information. So that’s January 7th, the government files what I think is a fairly aggressive supplemental sentencing memorandum in light of the position that they had taken a year ago. Then 15 days later Flynn, through Sidney Powell, files his reply and I’m not even gonna – the reply is nonsense. It’s everything you would expect Sidney Powell to sort of vomit into print; makes wild and unsubstantiated allegations about the government reneging on its plea obligations, which are just, again, it’s bananas.
Yesterday the government filed – that’s Flynn’s opposition, yesterday the government filed its reply brief and I think the majority take, and [Laughing] usually we’re exploding media majority takes on here, but I think the majority take is right on this, which is that the tone of the government’s reply brief – by the way, signed by the exact same lawyers, U.S. Attorney Jesse Liu, AUSA Brandon Van Grack, same people that wrote the January 7th memorandum.
Seems to be very, very different in tone. Multiple locations says we don’t disagree that a term of probation is appropriate. The word “probation” does not appear in the January 7th memorandum. And is approximately 20% – reply briefs are short, but about a fifth of the reply brief, it’s over a page in a six page document, is devoted to arguing that Flynn’s case is similar to other cases in which the court has, consistent with the guidelines, imposed a sentence of probation.
That absolutely to me looked like a 180 in tone, and while you’re sort of left speculating as to motives, certainly speculating that Attorney General William Barr would put his thumb on the scale in this case does not seem to me to be on the same level as, like, thinking that NASA faked the moon landing, even though we’re not really conspiracy minded here.
So that’s the surface-level take and the history, and you think that I’m completely wrong and I wanna know why.
Marcy: Well, one more thing that happened. So one of the things that Powell did last fall was she, in the guise of a Brady motion-
Marcy: -because she was trying to get Stephens- sorry, she was trying to get Emmet Sullivan to do what he did with Ted Stephens which was get really angry and dismiss the case based on Brady violations. In the guise of a Brady violation, she basically did her first draft of a motion to withdraw the plea. It was as ridiculous as the response was that you just described, conspiracy theory, stuff that’s totally irrelevant to Flynn. FISA, FISA, FISA, Ted Stephens, Ted Stephens, Ted Stephens.
So in December, importantly a week after the IG report came out, Sullivan wrote this meticulous 92-page order including this table where he matched Powell’s claims about what she didn’t get under Brady with the government’s claims about when they actually gave it to her, which was all timely. He made it very clear he didn’t find this whole circus very amusing.
Then after the government and Flynn wrote those sentencing memos that you described, then Sullivan – and this is critically important – then Sullivan said “okay Sidney Powell, you want to withdraw your client’s plea even though he’s twice pled to it under oath and pled to something else under oath. I want you to brief X Y and Z case,” Cray, which involves somebody who withdrew part of his guilty plea but not another part, and who was made to go under oath again in a hearing and talk about why which is how the judge kind of discovered that he was only withdrawing part of his plea.
So when the prosecutors wrote that memo yesterday they were on notice to expect that Flynn will be put under oath and asked why he’s now disclaiming these past multiple statements under oath, and probably Rob Kelner will be, too, which is gonna be exciting because he’s going to explain all of the stuff that Flynn has blamed on him for a year, was actually Flynn’s idea.
Prosecutors knew that Flynn – I mean, they had asked before, you know, we want Flynn under oath and in the response from Flynn they said no, no, no, you don’t really need that, but now they have every expectation that Sullivan is gonna put Flynn under oath and therefore they have every expectation, I think, that Flynn will either perjure himself anew in front of Emmet Sullivan or say that he perjured himself on December 18, 2016 and also before the grand jury.
There’s no other way. At this point Flynn’s sworn statements, because he also submitted a declaration with his filings yesterday saying that “I don’t believe I lied,” meaning he’s got one statement saying he doesn’t believe he lied-
Marcy: -and two under oath saying he did. So he has perjured himself, and I don’t say that lightly. He has perjured himself and Sullivan has already given both sides notice that he plans to put Flynn under oath and get that perjury in writing.
So what I think happened with the filing yesterday, which by the way, was submitted after Sidney Powell submitted her two even crazier briefs-
Marcy: -the one to withdraw and the one that she didn’t warn Sullivan about which is largely repetitive of stuff he’s already ruled against a motion to dismiss the case, so they waited until she fully committed to this bat-shit strategy, then they put out this memo which said, as their January 7th one said, well we’re asking for a guideline sentence.
They’ve argued this over and over again because Flynn is saying oh, you’re retaliating against me for blowing up your case last summer by sending me to prison. One of the things I think they’re doing is always saying the guidelines are the same. We are not changing the guidelines, so whether we withdraw the cooperation memo, whether we get you to take away the admission of responsibility, still zero to 6. Zero to 6, Zero to 6, Zero to 6, and that, I think, situates them well with regards to the claim that they’re retaliating, and also situations them well for appeal which is where this is going.
They made it very clear yesterday that Flynn is choosing this bat-shit strategy even though probation is still on the table. That’s one thing that they’re doing, is I think they’re covering themselves and covering themselves knowing where Sullivan is about to go, which is to perjury.
Then the other thing they did, you mentioned that they spent a full chunk of a page talking about how Flynn’s treatment is comparable to similar-situated people.
Marcy: They raised Sandy Berger who snuck some classified documents in his socks out of the National Archives, and David Petraeus who famously gave code-word intelligence to his girlfriend so she could write a fawning biography of him.
Marcy: Both of these very powerful men got probation. Those are the two cases that prosecutors finalized their memo with, that’s what they left Sullivan with as a last impression on their view about sentencing.
That’s important because last year, or now two years ago, when Sullivan was first sentencing him, when he had him under oath, one of the things Rob Kelner – who is a very competent lawyers but wasn’t reading Sullivan very well this day, he says “you know, in this district there’s also the case of Petraeus who got probation, who got this misdemeanor who got probation.” Sullivan twice said “I don’t agree with that plea agreement.”
I mean, no one agrees with that plea agreement, right? Petraeus will forever stan sentencing guidelines because it was ridiculous but Sullivan said “this is probably not appropriate, but I don’t think that a four-star General should be sharing classified information like that and just get probation.” That’s the very same sentiment, though, that already had Sullivan pissed off that day, which is that a three-star General, in this case Flynn, would sell out the country, would go and sell his name to Turkey for 600,000 or $500,000 and change.
Marcy: What I think the prosecutors are doing is playing to a well-known fact by anybody who covers Sullivan or practices in front of him, I think, but that for some reason Sidney Powell, and frankly I think Rob Kelner read him wrong, but Sidney Powell has really read him wrong, that he loathes when powerful people ask for special treatment.
That’s basically all that Flynn is working with on his various motions to blow up his entire plea deal. He’s basically saying “I was an honorary general for 30 years.”
Marcy: Sidney Powell keeps saying oh he’s a hero, he was the premier national intelligence blah, blah, blah. I mean, this guy is a hero and therefore how dare you suggest he should serve prison for stuff that other people go to prison for? That’s the argument that they’re making and that is guaranteed to piss off Emmet Sullivan. I think what the prosecutors did with this memo is just turn the knife a little more!
Marcy: Leave him with that dirty taste in his mouth of David Petraeus who avoided all jail time for giving code-word intelligence to his girlfriend.
Andrew: Okay. I want to drill down on that, I do want to rabbit trail a little bit to get your thoughts on the concurrent motion to dismiss, and let me ask it this way. If, as certainly seems to be the case – maybe this is another undercutting my own argument. If it looks like the prosecutors are sort of easing off the gas pedal and trying to steer this case towards probation, what on earth would be the reason to simultaneously move to dismiss when, as you point out, it certainly is I think a fair construction of the record to say that that is res judicata. That Judge Sullivan has already said, essentially, I’m not gonna let you withdraw your plea, I’m not gonna let you dismiss out this case.
I can’t – [Laughs] This is my question of can you get inside Sidney Powell’s head? ‘Cuz I can’t!
Marcy: Oh my goodness, no, ‘cuz it’s so disjointed.
The other thing too, remember, is that this memo, the prosecutor’s memo, came out in timely fashion. The one on January 7th, they had twice to ask for a continuance because they had to get approvals from so many people at DOJ to submit it. So having spent an extra 72-hours earlier in January to get the necessary approvals to do what they did then, I just don’t see how if Barr needed to approve the Mike Flynn sentencing memo how he didn’t approve that early January one. If they had to run it by Bill Barr, Trump’s biggest defender, they would’ve had to also run that one by him in early January.
Andrew: But doesn’t that sort of suggest my view, the mainstream view, which was okay, Jesse Liu needed extra time to go to war inside DOJ to get authorization to file the first sentencing memorandum and given the lack of time that institutionally you need more time, more arguments, to support a harsher tone, but a more lenient tone was something for which there was no problem getting approval?
Marcy: Sure, but I mean, you still already – still structurally, yes, the word “probation” is in there over and over again, but they still in yesterday’s memo were saying we’re not gonna give you the cooperation memo and we’re not gonna give you admission of guilt, so their stance is the same about what goes into Sullivan’s calculation. I guess I’m just saying from a bureaucratic standpoint, it was the early January one that they had to get, that they had to fight to get approval for, whereas this one, you know, maybe they got the same-
Marcy: I mean, look, I do not rule out Bill Barr putting his thumb on the scale, I think there should be very significant questions about the Lev Parnas prosecution and SDNY, I think everyone should ask real questions about what else Barr is doing behind the scenes. I just think in this case where Flynn has already put himself on the line there’s no saving him. Bill Barr cannot save Mike Flynn, and this memo, a memo saying probation, probation, probation, probation, it’s too late because Sullivan’s already gonna put him on the stand.
Andrew: Okay, so-
Marcy: And he already has four sworn statements that are completely incompatible. He already has at least one charge of perjury on the books and Emmet Sullivan shows all signs of trying to solidify that to justify wherever he’s going. So it’s out of the prosecutor’s hands and that’s the stance the Mueller’s prosecutors have always taken. They’re like here’s the guidelines, you decide. They did it with Manafort, they did it with Gates, they did it with Patten. We’ll see whether they do it with Stone.
Marcy: But they’ve done that every time, they have handed off that political decision to the judges, they are doing the same here but they’re doing it with the knowledge, that Emmet Sullivan train has already left the station and even if prosecutors want – I mean, prosecutors in December 2018 wanted to reign Sullivan in, they wanted to give Flynn probation and they couldn’t-
Andrew: Yeah, yeah.
Marcy: Because Flynn stepped in it. Here he spent another year stepping in it and stepping in it and stepping in it, and now all that’s changed is prosecutors have no interest in trying to reign in where Sullivan is headed.
Andrew: Okay, so- Boy! So much there. I guess I wanna start with pushing back a little bit. I think, and I wanna get your opinion on this, I think it’s more than just that the January 7th supplemental memorandum doesn’t mention probation. One of the things that I kind of alighted over in setting up the facts is that memorandum not only says hey, we are withdrawing our 5K1.1 request for a downward departure because we no longer believe that Michael Flynn has rendered substantial assistance in any prosecution, and part of the reason, as you set forth. By changing his statements that meant the government could no longer call him as a witness, it undercut that case.
By the way, just for our listeners, Marcy I know you know this, but that standard of whether to allow a 5K1.1 downward departure A, is at the absolute discretion – this is clear from the plea agreement, it’s also clear from the law. The prosecutors get to decide whether they think you’ve rendered substantial assistance and that is entitled to utmost deference under the law. So they rescind that, but then, and this is page 16-17 of the January 7th supplemental memo.
In my view they go further in the opposite direction. Again, I love the way you put it, I think that this is correct that in connection with the Mueller prosecutions the USA and AUSA’s have sort of teed everything up and then backed off. So consistent with that, that memo says “in determining the sentence to impose within the guidelines range or whether a departure from the guidelines is warranted, the Court may consider without limitation any information concerning the background character and conduct of the Defendant” then specifically a couple paragraphs later, “the Court should consider not just the Defendant’s lies to the FBI regarding his contact with Kislyak, but also his lies to the DOJ in his FARA filings concerning his work on behalf of the government of Turkey.”
So I certainly read that at the time, and we talked about it on the show, as within the general range of how these prosecutors have conducted themselves over the past two years, as strongly hinting to Judge Sullivan, hey, you might wanna consider an upward departure from the sentencing guidelines. In other words if the sentencing guides say 0-6 months, going for no possibility of probation, longer time in prison, no split sentence, maybe move this into Zone B or Zone C. I certainly read that between the lines kind of consistently with how we’ve both described how Liu and others have acted.
That’s also gone, and I don’t know that you needed to back away that strongly in the reply brief, I guess is kinda where I’m going with that. What do you think of that?
Marcy: Yeah, I don’t know whether you needed to, but it completely inoculates them from any responsibility for what comes next. Again, they know that Sullivan plans not to just depart from guidelines, he plans to get Flynn back on that stand, he plans to go after that perjury, he plans to go after the fraud of the Court that he set up in December 2018 because he saw all of this coming. So they can sort of sit back and say “wasn’t me!” [Laughs]
Marcy: So, you know, I don’t know whether DOJ had to ask them to do this. I could come down either way and say somebody told ‘em to be less mean to poor General Flynn and I might agree with that except for the fact that they ended on Petraeus.
Andrew: [Laughs] So you view the Patraeus as a not subtle reminder to Judge Sullivan that he’s mad about the Patraeus deal. Let me ask it this way, what do you think is coming next?
Marcy: Right. So Flynn, because of that declaration, now has four sworn statements that are already contradictory. The government has to respond to his Motion to Withdraw. Sullivan I expect will issue a minute order describing what it is that he thinks he got in the Motion to Dismiss and how he plans to deal with that and whether the government can respond to that, although they already have.
As I said, the only thing that’s new in there is from the IG report which Sidney Powell did not raise in the week after it was released before Sullivan released his opinion, so she’s already basically lost her opportunity to do that, and many of her arguments would be great if she represented Carter Page, but she represents a guy named Mike Flynn and that’s not gonna help him that much.
So whatever happens to the Motion to Dismiss, there’s the Motion to Withdraw and in yesterday’s memo they’re like “we’re not gonna answer to all the other BS that she included in her response, we’re gonna deal with that in a Motion to Withdraw.” Now they look clean on what they’re responsible for, which is the sentencing, and they can go after the Motion to Withdraw and just go haywire.
And oh, by the way, there are like four sets of documents that Powell mentions but doesn’t include. One of those, for example, she keeps saying “why didn’t you give me the January 30th, 2017 memo that says Flynn wasn’t a Russian agent?” She keeps saying “why didn’t you give me all those DIA files that say that he told DIA about his gala with RT and Vladimir Putin,” and the government has warned her there. They’ve said those aren’t exculpatory, those are in-culpatory.
Andrew: [Laughs] Right.
Marcy: There’s a reason the government gave her all of the grand jury and the way Rob Kelner testified and there’s this wonderful moment in Rob Kelner’s 302 from last summer where he starts listing all the lies that Flynn told him when he was filing the FARA filing, which, by the way, are backed up in the contemporaneous notes from Covington.
Marcy: So, you know, I’m gonna believe Rob Kelner and I guarantee you Sullivan’s gonan believe Rob Kelner. And he starts talking about all the lies Flynn told and Powell interrupts and says “why are you talking about my client that way?” and the prosecutor’s like well, that’s the point. [Laughs] You know? That is the point of what Kelner is gonna testify to. So she’s on notice that they’re going to rely on all those materials to blow her FARA claims out of the water and it’s gonna be fairly easy to do. They’re gonna show that either he lied in his grand jury testimony or he’s lying now, but the other filings that they warned her that they’re gonna go to, which she mentioned but didn’t address.
So she went through in her Motion to Withdraw yesterday, she described how when Flynn first made his proffer on November 16th, 2017 it didn’t go well. Here are Flynn’s lawyers who are like “we’re gonna get you off, dude,” and then in his first day of interview with prosecutors he blows it badly. The government gave Flynn those 302s, they said, to make it very clear that he wasn’t telling the truth then.
Andrew: Right, right.
Marcy: So they’re going to respond to Flynn’s claim, which he offers virtually no excuse for, that he didn’t lie about Russia on January 24, 2017, by showing that on November 16th and November 17th and November 19th, 2017, he continued to lie until he realized he was gonna go to prison for it and that’s when he famously backed out of his joint defense agreement with Trump.
Marcy: That’s when he began to tell the truth, but they’re gonna show that there are additional false statements that were made to the FBI on the first proffer meetings. Things are gonna go downhill from there.
And oh, by the way, we talked about that sentencing memo but one of the things that the government did in that sentencing memo and they’ve been doing it now – Mueller did it when he testified before Congress. He keeps saying there’s ongoing counterintelligence investigations into Mike Flynn, and Mike Flynn’s lawyers don’t seem to be alarmed by that.
Marcy: If I were Mike Flynn I’d be alarmed by that. So there’s a lot of stuff that the government, even just in responding to this Motion to Withdraw, that is gonna – I mean, Mike Flynn is trying to resuscitate himself. He doesn’t believe that a three-star General can be held responsible for his lies and the government is about to roll out a lot more evidence showing that he lied, that he lied to his lawyers, that he lied to the FBI on three more occasions after Flynn yesterday. Sidney Powell yesterday said oh yeah, he started telling the truth in November and it’s like, you mean November 30th he started telling the truth because on November 16th he probably wasn’t telling the truth. So that’s where it’s gonna go.
What happens, I don’t know because I think this is fairly unprecedented, but what happens when Sullivan brings him in there and says frauded the Court in December 2018 and you’ve just perjured yourself, now what’re you gonna do?
Andrew: Okay, so let’s unpack that a little bit. [Laughs] I love all of that. So what you think we’re going to see next is – and this will be. The Court needs to determine whether there will be a response to the Motion to Dismiss because the weird procedural posture, but absolutely the government is going to file a response to Flynn’s Motion to Withdraw his guilty plea and if I read you correctly I think what you’re saying is you think that’s going to be the meaty governmental response that all of us are looking for and are maybe disappointed in this memo. Fair?
Marcy: I mean, yeah. I think that when they submitted their sentencing memo Powell was not yet committed to the ill-advised path that she has led Mike Flynn down. Now that she’s committed and now that Emmet Sullivan is committed to putting him under oath and to clarifying the fact that he keeps lying under oath, they can close the sentencing memo and say yeah, whatever, guidelines. Then I think they’re gonna throw everything at their response.
Again, they’ve warned Powell. They warned Powell, they gave her a jury transcript and I don’t know how many people read it, but he’s just straight up, yeah I knew the entire time that I was working for Turkey. What he’s saying to the grand jury is that when he went into that first briefing with Trump on August 17th, 2016, that he complains that an FBI agent was there, when he went into that meeting he was working for Turkey.
Marcy: He was in a top secret briefing and he was on the payroll of Turkey. That’s the story that prosecutors are now gonna tell, they’re gonna tell why it was so problematic that the top national security advisor of Donald Trump was a secret agent – he was working for Turkey secretly and he was making affirmative efforts to hide the fact he was working for Turkey. There are still repercussions to this day for the fact that that’s how the relationship between Trump and Turkey was established, and I think we’re still talking about the favors that Trump is doing for Turkey.
Marcy: I think that’s one of the stories the government is gonna tell. Then they’re gonna show that Flynn in his first efforts to (quote, unquote) “cooperate,” he was still covering up for Trump. By the way, this is something that I noted in the Mueller report.
The Mueller report very ostentatiously never explains how, it never says that Trump ordered Flynn to go tell Kislyak to blow up the sanctions, but it doesn’t say that Flynn did it on his own, which is weird because at the point when Flynn did that he was under active investigation by the FBI for being a Russian agent.
Marcy: So it is unbelievable that Mueller didn’t answer: did Trump order him to do it in which case he’s okay? Or did he do it on his own, in which case I think the case that he’s a foreign agent becomes much stronger because he blew up sanctions designed to punish Russia for stealing the election on his own if Trump didn’t order him. I think that’s something else out there that if I were Flynn I would be really concerned about dropping, and they don’t seem to care.
Andrew: Well, there’s so much more I wish I could go through. I don’t wanna lose track of the thread and I think we’re probably out of time to do this, but your most recent, as of this recording, blog post was entitled “Mike Flynn Seizes the Rope to Hang Himself With, Flynn’s Motion to Dismiss Carter Page’s Nonexistent Plea.” You sort of dropped that in the background and I would say if anybody is as curious as I think you will be about that connection as to why this would make more sense in the hands of Carter Page than in the hand of Michael Flynn to go read that blog post. Your blog is fantastic anyway, so plug for that!
The way I would bring all of that full circle is in a couple of weeks we will see the government’s response to the Motion to Withdraw the Plea, and I think fair to say your prediction is government is gonna unload on Flynn and the net result of all of this is that Flynn is gonna be way worse off than just getting a total cumulative sentence within the guidelines, which would be up to six months. Fair?
Marcy: Yeah, and one more thing and then we can go.
Andrew: If you wanna stay I’ll keep you here for hours! [Laughs]
Marcy: So Kian is found guilty, Judge Trenga acquits him, says there really wasn’t enough evidence here. The government is appealing that. Depending on what happens with Kian’s prosecution in EDVA, if that all gets bumped back and we start over again the government has made it quite clear they consider Flynn a co-conspirator in that case. They also make it quite clear that as time went on they discovered a lot more about what his co-conspirators were doing from Turkey to influence Flynn, so I don’t rule out that coming back to haunt him. Haunt him, by the way, and his son, because if this plea somehow gets blown up one of the reasons Flynn pled is to make sure that his son who was also involved doesn’t get implicated.
At every single stage Flynn, because he is arrogant, has done precisely the thing to increase his own exposure and it may not remain just here at D.C., it may also extend to what’s going on in EDVA.
Andrew: Alright well let’s keep our eyes open for that and when that comes in, Marcy, can we get you to come back on the show?
Marcy: [Laughing] Now that I found you guys!
Andrew: [Laughs] Hey, we found you first! So I want credit for that. We’ve been following your blog, you’ve been doing really fantastic work and we’re big fans.
Marcy: Thanks so much!
[Commercial – policygenius.com/oa]
HEADING – Background on Flynn Trial for Laymen
Thomas: Okay, so Andrew, this was, I’ll admit as a layperson it was a little hard to follow and I knew and you knew that Marcy was on a tight time crunch, so I just didn’t really wanna poke in and reset us back to basics and interrupt the flow because, again, she had very little time and she was very generous with the time that she had so I didn’t wanna slow us down, but I do wanna say that I had a bit of a hard time following. I think you and Marcy are both just way, way in the weeds of the Michael Flynn case and the various [Laughs] you know, I guess various cases maybe against him?
Thomas: So there’s a shorthand there that you guys are speaking in that may have been tough? Could just be me but I imagine if it’s me it could also be some of our listeners, so I wanna take this opportunity at the end of the episode after the interview here to just make sure we’re all on the same page on some of this stuff. It sounds like the heart of the disagreement is just interpreting what the prosecution really wants to do? You think that maybe Bill Barr had a hand in, uh, advocating for some sort of light sentence and she seems to think that no, they’re still gonna go after him it’s just that the information we have is a little weird because of some stuff they said but, you know, they’re still gonna go after him.
Is that the heart of the disagreement? And do you still disagree after having had that discussion?
Andrew: Yeah, that is exactly right. So let’s put this into a little bit of context. Michael Flynn was one of the very first plea deals to come out of the Mueller investigation. Like Papadopoulos, like some other folks, he pled guilty to one count of 18 U.S.C. § 1001, which is making a false statement in connection with the Mueller investigation.
Andrew: In particular, what Michael Flynn was doing was downplaying (lying) about his connections with Sergey Kislyak. Michael Flynn, throughout this process, was ably represented by Covington & Burling and again, look, these are – Rob Kelner, Steve Anthony, they’re folks I know well. Folks with whom I’ve had substantial disagreements, okay, so this is not just Andrew sticking up for his big law firm buddies, but impeccable lawyers.
So what we saw six months ago was Flynn fire Covington, hire nitwit Sidney Powell and begin saying “oh I didn’t really mean to plead guilty to any of this, I didn’t know anything was going one and the government made me do it and they were putting the squeeze on me and they made me lie and I wanna recant and take everything back.”
Thomas: Right. Which to a layperson – it worries me. Because I feel like in a time when there’s no consequences for anything I feel like oh, he’s gonna be allowed to just undo it and the Trump-heads’ll be “see, he was forced into it, this poor patsy.” Is that a worry? That he’ll just kinda be able to do that? Or are they not gonna let him do it?
Andrew: That is certainly a worry. What we’re really talking about is how is Judge Sullivan, of the U.S. District Court for the District of Columbia, how is he going to react to everything that’s in front of him? I guess part of what we should have said, this is certainly implicit in a lot of Marcy’s answers, is that while the way in which the case is framed is a function of what the litigants in front of you are saying – so in other words, the prosecutors are now saying guideline sentence, 0-6 months including probation, Flynn’s lawyers are saying yeah, guideline sentence, 0-6 months, we want probation.
Ultimately, what sentence to hand down is in the hands of the trial court judge. So Judge Sullivan can say – and when we talk about a “downward departure” that is because the U.S. sentencing guidelines are advisory. They are presumptive.
Thomas: Right, I remember talking about that.
Andrew: Yeah. You start with the matrix, but you are guided by the underlying statute which has the factors of is this representative of the crime, is this sufficient to deter others, is this sufficient to specifically deter this particular defendant? So the judge can impose and justify whatever sentence he wants and then that will be subject to review on appeal for abuse of discretion.
Thomas: Mm-hmm. Gotcha.
Andrew: Real example, Judge Sullivan decides that he hates Michael Flynn and-
Thomas: Sentences him to death!
Andrew: [Laughs] Right, to be hung from his toes until dead, that would exceed his discretion and would be overturned by the D.C. Circuit on appeal.
Andrew: But if he departs upward from the guidelines and writes-
Thomas: Gives him, like, three years.
Andrew: Yeah. That would be substantial, and almost certainly upheld on appeal.
Andrew: Again, even though it’s Michael Flynn, this is not the kind of thing that goes to the Supreme Court. So he’s not gonna get bailed out by his buddies. Now, he might get pardoned by Donald Trump, that’s all in the background-
Thomas: Oh, ‘cuz this is a federal-
Andrew: Because it’s a federal offense. Donald Trump can wait until the sentence comes down and then pardon and the only consideration there is the political consideration.
Thomas: Right. Doesn’t matter.
Andrew: [Laughs] It is what it is.
Thomas: But the way Marcy was talking about Flynn, it sounds like there’s so much more stuff here. Like he’s acting as a – what is it, an agent for Turkey? Was she saying? And potentially, or a Russian asset or something. I just wonder, does he ever have to account for that or was all of that subsumed by this one plea and when she’s like “yeah, I made a statement that was false” and he kinda undoes that so there’s no justice?
Andrew: Yeah, so let’s unpack that, because that I think is the most radical of Marcy’s suggestions. I can’t say that it can’t happen, but here’s what she was saying. We were talking about the 5K1.1 motion for a downward departure. The criteria for the government seeking a downward departure is the government, in its discretion to which it is entitled to extreme deference, makes a motion to the Court that says this Defendant has rendered substantial cooperation to the Department of Justice, to the prosecutors, that has aided them in the prosecution of somebody else. That’s the basis in the sentencing guidelines for a 5K1.1.
Again, think about that. That happened throughout the Mueller investigation and that happens throughout prosecutions all the time. Somebody can flip on somebody in their own scheme, but they can also offer valuable assistance in connection with someone else. In this case, the particular someone else was Bijan Kian, Bijan Rafiekian is his full name, he’s referred to as Bijan Kian. We do not have time to get into the Bijan Kian case, but that is the connection to Turkey.
What the government has said in print, even in this reply memorandum which you saw the difference of opinion between Marcy and I on, is that by firing Covington and reversing his position publicly, the government, which was anticipating calling Flynn in the Kian case, then said look, we can’t call him now, he would be a disaster of a witness. He’d be super easy to impeach because he’s got his nutjob lawyer out there contradicting his previous sworn statements.
Again I will tell you, not as a prosecutor but as a lawyer where you have to make judgments about the credibility and strength of your witnesses, yeah. Absolutely, government could no longer count on Michael Flynn as a witness.
Andrew: So then they said look, yeah, we expected to call him as a witness, then he started saying stupid stuff and hired a moron as his lawyer, said dumb stuff in public, so he’s no longer rendered substantial assistance to us in the Kian case so there’s no basis for the 5K1.1
What Marcy was point out, and again, this is really clever! Not sure I agree with it, but I love giving voice to it. Flynn’s plea deal subsumes all of the – arguably, but certainly would be interpreted this way. The prosecutors were basically like look, we are not going to indict you in the Kian case so long as you abide by the terms of your plea deal. What she was pointing out is that if Michael Flynn is permitted to withdraw his plea agreement, and that’s null and void, or Judge Sullivan throws it out because he hasn’t complied with the terms, that would be a more extreme ruling, then he would be free to be indicted in the Kian case in a subsequent Kian prosecution.
So that’s where she was headed with respect to that case and the connection to Turkey. That is all sort of up in the air in terms of what the government does in connection with that case, but that was that connection. Make sense?
Thomas: Yeah. But if he ended up not being useful for anybody for any reason [Laughs] then can’t we just, okay, redo then. Now you actually have to account for all your crime since you were useless as a witness, you know? Or is that, we’re past that?
Andrew: I think I understand, take another crack at that question for me, I just wanna make sure I’m answering it-
Thomas: You just pointed out that now he’s a horrible witness because he’s [Laughing] a horrible witness! You know, because he’s undoing all the stuff, for the reasons you outlined. So has he helped? Is he still getting a sweetheart deal? I guess my question is – and apologies if I’m missing something, is he still getting a sweetheart deal without having contributed in any way to the Mueller report?
Andrew: So yes, but let’s be really, really clear about that. The way in which a plea deal works is that the Defendant is given whatever he’s given in the deal in exchange for the particular requirements that are set forth.
In other words, the plea itself is not tied into how useful is your stuff. If you enter into a plea deal and the government thinks okay, well we’re gonna do this because you’re gonna be a witness, then they sign the plea deal, then you do several rounds of interviews and they’re like “oh man, this guy sounds like Jon Lovitz on a bender, he’s the worst possible witness. This is not gonna help us at all,” you would be able to say okay, he didn’t render substantial assistance so we’re not going to move for a downward departure under 5K1.1.
That’s within their discretion, but you wouldn’t tear up the deal. In the normal course you’d be like, yeah, look, as long as he tried, as long as he didn’t openly violate the terms of the deal then we’re not going to say from the government’s perspective that you violated that. The agreement is procedural, you have to do your best even if your best sucks.
The Michael Flynn case, I think, is kind of right on the line.
Andrew: If Flynn were not seeking to withdraw his plea I don’t think the government would say “you haven’t cooperated with the spirit of this plea deal.” They could, they could raise that argument, I think they would sort of let sleeping dogs lie because in general, think about this from a structural perspective, if you’re a prosecutor you need 99% of your cases to plead out.
You don’t wanna have the reputation going into plea bargaining that you’re the prosecutor who you get a plea deal, you’re gonna see how it works out and then later try and tear it up because that word would get around and as a defense attorney you’d be like, oh yeah, don’t ever sign a plea deal with Torrez because you’re gonna get this deal and then if he doesn’t like the way you testify, Torrez is just gonna tear it up. Make sense?
Thomas: I guess. [Laughs]
Thomas: But you also should feel like you have to actually contribute something.
Andrew: I don’t disagree, I’m just sort of pointing out the equities of the situation.
Thomas: So where does that leave us? Are you ultimately convinced or no? By what Marcy Wheeler had to say?
Andrew: I’m still not convinced.
Andrew: I think that you would not have to take quite as soft a tone as the lawyers took in this, and I think – again, I think it’s clever, I really loved the color on somebody saying hey, it’s possible for lawyers to misread a room and particularly to misread a judge. That’s a really, really valuable insight. I sure know [Laughs] I’ve done that in my career before.
Thomas: Sorry, how would that apply here? Who’s mis-
Andrew: So the idea is, because Marcy’s view is mentioning Petraeus-
Andrew: -was designed to, I think she put it “twist the knife,” to remind Judge Sullivan hey, you hate this guy. [Laughs]
Thomas: This guy got off with virtually nothing.
Andrew: So it’s I’m saying no, use the Petraeus case as instructive but my real secret intent behind that was to piss him off.
Thomas: Oh, but you’re taking that as look at this, Petraeus got nothing.
Thomas: Are you taking that at face value?
Andrew: I’m taking it at face value.
Thomas: Okay, I see.
Andrew: I think it was meant to say, hey, we’ve now come back around, probation is fine and in fact here are two examples, and Sandy Berger never came up in the context-
Andrew: -of the trial before. So I just view it as kind of a tone deaf or maybe it was a silent protest. [Laughs] Maybe Jesse Liu was told okay, you gotta go easy on Flynn, so did in the text, but did Marcy’s stuff in the subtext? Could be, but uh-
Thomas: Well that we can at least-
Thomas: I mean, we can see once it-
Andrew: We can see, that’s exactly right. That’s why I wanted to ask what we’re looking for next and I think she’s right, the question is, to me, what will definitively resolve whether she’s right or I’m right is the tone and substance in the government’s opposition to Flynn’s motion to withdraw his plea.
Andrew: Notice, I asked her a question I can’t figure out the answer to, she couldn’t figure out the answer to, I dunno that anybody can figure out the answer to, which is if you’re a couple of weeks away from getting probation why in the hell would you try and go back to the drawing board?
Andrew: You withdraw your plea when you’re about to get seven years in jail. You’re about to get nothing-
Thomas: Yeah because if he withdraws his plea then don’t they just have to go to trial?
Andrew: Yeah! They can try him, absolutely!
Thomas: Yeah. Hmm.
Andrew: And his plea deal says that they can use his statements against him at trial.
Andrew: Our buddy Randall Eliason wrote an op-ed about a month ago that we re-tweeted out, you can go find it in the Washington Post that said Judge Sullivan should call their bluff. Should let Flynn withdraw his plea deal and then they should try him because there’s more than enough evidence to convict. It was a great piece.
Thomas: But this would kind of be evidence that Marcy’s right, right? Because if he’s about to get a super easy slap on the wrist, barely anything, why bother trying to withdraw?
Andrew: That would assume that Sidney Powell is a rational agent and that you are not conducting the trial to be covered on Fox News and Q Anon.
Andrew: So, you know, I don’t know that we can make that judgment. I think Sidney Powell is a nutjob and is not thinking strategically but is thinking I want to have, I’ve come in to create this Fox News character who, their post-sentencing career – setting up, for example, Oliver North has been a talk show host and now Fox News contributor for the past 20 years after lying to Congress in connection with the Iran-Contra scandal, and has that sort of carefully manicured persona.
So my view is not that Sidney Powell is doing anything in connection with legal strategy, but is setting and laying the groundwork for creating a persona for a hero on the crazy far right who’s going to spend the rest of his life as, you know, “key national security analyst” for Fox News. That’s my view.
Thomas: Okay. Alright, final question. Is there any chance of any other proceedings? Other charges, anything? Or is this it?
Andrew: Only if the deal gets blown up.
Thomas: Okay. Interesting. Alright, well, thanks for the explanation there, I definitely feel like I understand it a little better. So we’re still waiting to see, then, we’ll kinda ultimately see who’s right in a few weeks, was it? That you said?
Andrew: Yeah, a few weeks, government’s response to the motion to withdraw the guilty plea is due.
Thomas: Well [Sighs] as usual we’re all hoping that Optimist Prime is victorious, but deep down inside I think we’re, most of us anyway – I’m certainly a Negatron at heart, but I want the world to be more Optimist Prime.
Andrew: Me too.
Thomas: Alright, it’s time to thank our Hall of Famers, our all-time greats here on Top Patron Tuesday. I believe it’s your turn first, Andrew.
[Patron Shout Outs]
Thomas: Alright, and now it’s time for the thrilling conclusion of T3BE.
T3BE – Answer
Andrew: Alright Thomas.
Thomas: T3BE and the Tale of the Stabby Roommate, I guess.
Andrew: [Laughs] Yeah. The Tale of the Stabby Roommate. So yeah, this was a question about a roommate, sneaks into the room with an ice pick, is thwarted in his plans to stab his roommate by a phone ringing then hides the ice pick. The roommate later figures out, the intended victim later finds out from friends that his roommate was about to stab him, finds the ice pick, the student gets expelled – the would-be murderer gets expelled, but our poor college student still can’t sleep at night.
So the question is, in a suit against the roommate for assault, will the student prevail? You picked answer B, no because the student was not awake when the roommate entered the room and was unaware until later that the roommate was intending to attack him, and Thomas, your winning streak rolls on, it is now five in a row!
Andrew: That is the correct answer. The elements of assault are that the plaintiff must demonstrate that he reasonably apprehended that a harmful or offensive touch was imminent and in this case, because he was asleep, the student did not have that level of apprehension necessary for an assault claim.
You were torn between B and D, D is a terrible answer. [Laughs]
Thomas: Well it was on the theory that you don’t need – yeah, okay, I hear ya, but my theory was if it’s not about the person feeling the threat of bodily harm and it’s more about what the attacker was doing then that would be – but yeah, okay.
Andrew: Yeah, well it’s-
Thomas: Hey, I didn’t pick it!
Andrew: [Laughs] Good job!
Thomas: What do you think is the second most plausible answer, then?
Andrew: You know, the second most plausible answer would’ve been C, and again, let me go back to D. The reason there is this is going to hinge on the apprehension of the victim. There’s no question about the intent of the perpetrator.
Thomas: Yeah, I know, but I don’t know that. [Laughs]
Andrew: Fair enough.
Thomas: So when I’m evaluating answers and I say “well, if it’s on the theory of the apprehension of the victim then B,” which is totally a great answer and was right, or if it turns out that it’s not about the apprehension of the victim it’s more about the intent of the attacker, then D is a good answer. Is that not right?
Andrew: Okay. But-
Thomas: Okay, so as a lawyer that would be a stupid answer, but as a me I think that was a good-
Andrew: As a you it was a perfectly fine-
Thomas: As a me I think it was a good answer.
Andrew: Because what the question is testing is do you know that the criteria at common law for assault requires imminent apprehension of harmful touching.
Andrew: So if you don’t know that it’s imminent you could be distracted by C, which says oh, he-
Andrew: -did eventually. In other words, there’s a chain of events. The roommate comes in the room with the ice pick and then two days later-
Andrew: You’re scared of the assault.
Thomas: But I could go “well Andrew that’s a dumb answer because it’s not imminent!”
Thomas: And then we’d be in the same place as with D.
Andrew: That’s true. You certainly could.
Thomas: They’re both wrong, just for-
Andrew: Yeah, that’s right. [Laughs]
Thomas: I guess the difference is I felt pretty confident about the imminent part.
Thomas: But I wasn’t entirely sure about – naw, look, let’s face it, I got it right, I’m a genius.
Andrew: There you go!
Thomas: Why are we still talking?!
Andrew: Why are we still talking?
Andrew: So yeah, great job and congratulations, you are now at 54.9%.
Thomas: [Sighs] How many of these questions have I done? Like 40,000?
Thomas: I feel like every one I get right moves me up .0003%.
Andrew: Look, the noodle of T3BE is long [Laughs]
Thomas: [Laughs] But it bends towards…
Andrew: [Simultaneously] But it bends towards 60%. [Laughs]
Thomas: 54.97% I think is really where it bends towards.
Thomas: Well I’m on a roll with these ones, I’m having a good time, this new book is great. Alright, let’s hop in your time machine and find out who our big winner is this week!
Andrew: Alright Thomas, this week’s winner is Tom Faulkner – Hug your public defender, and that is a great idea. You know, consensually hug your public defender. @ATF1538, who writes, incredibly concisely and with a slight dig at me here: “Answer is ‘b’. Common law assault requires victim to perceive the attempted battery, can’t do that while asleep.” (That’s true) “No touching required for assault, so ‘a’ is not correct.” (That’s true) [Laughs] Then he says “C&D are just way off.”
Well, you know, alright. That’s the view from the streets, from a public defender who faces these kinds of issues – I mean probably slightly different fact pattern, but faces them all the time, a little bit of cheating but I like the idea of hugging your local public defender and congratulations Tom Faulkner, everyone give him a follow on Twitter. Again that is @ATF1538 and congratulations on being this week’s winner!
Thomas: Alright thanks so much for listening everybody, thanks again to our guest Marcy Wheeler and her blog is The Empty Wheel, follow her Twitter, follow her blog. Great guest, thanks so much for coming on, Marcy, and we will see you all on a Rapid Response Friday!