Michael Flynn Declines to Claim FBI Misconduct at Sentencing Hearing

Former US National Security Advisor General Michael Flynn arrives for his sentencing hearing at US District Court in Washington, DC on December 18, 2018. (Photo by SAUL LOEB / AFP) (Photo credit should read SAUL LOEB/AFP/Getty Images)
SAUL LOEB/AFP/Getty Images

UPDATE: After a recess, Michael Flynn’s lawyer Robert Kelner has accepted Judge Emmet Sullivan’s offer to delay sentencing until after Flynn’s cooperation with the government is complete. Sullivan advised the court not to read too much into his pre-recess questions about “treason” and said he was not accusing Flynn of anything. “I felt terrible about that,” he said.

Original story follows:

General Michael Flynn, the former National Security Advisor to President Donald Trump, declined to reverse his guilty plea Tuesday morning at a federal court in Washington, DC, telling a judge that he was not entrapped by FBI agents who interviewed him without counsel.

Flynn reached a plea agreement with prosecutors in December 2017, admitting he gave false statements to FBI agents and pledging to testify for the Special Counsel led by Robert Mueller — which was set up ostensibly to investigate Russian interference in the 2016 presidential election. Flynn’s purported false statements were about a phone conversation with Russian ambassador Sergey Kisleyak after Trump defeated Hillary Clinton in an upset electoral victory.

District Judge Emmet G. Sullivan, a Bill Clinton appointee, asked Flynn and his lawyer Robert Kelner whether they felt the FBI agents had entrapped him or if they wanted to postpone this hearing to rethink the guilty plea. Flynn and Kelner declined and said that the general was “aware” that lying to the FBI was a crime.

Judge Sullivan accepted Flynn’s guilty plea, stating, “this is a very serious offense. a high-ranking senior official of the government making false statements to the FBI while on the physical premises of the White House.”

Before revealing Flynn’s sentence, Sullivan lambasted the general for his lobbying activity against an outspoken critic of Turkish president Recep Tayyip Erdoğan, which resulted in the indictment of two of Flynn’s associates this week. “You were an unregistered agent of a foreign country while serving as the National Security Adviser to the president,” he said. “Arguably, this undermines everything this flag over here stands for. Arguably, you sold your country out. The court is going to consider all that… I am not hiding my disgust, my disdain for your criminal offense.”

Prosecutor Brandon Van Grack, representing the Special Counsel, told Sullivan that Mueller’s team had not considered charging Flynn with treason.

When first charged, Flynn fought prosecutors fiercely, calling the investigation “baseless and politically motivated,” but mounting legal bills eventually wore down his ability to resist Mueller’s team. A little over year after reaching the plea deal, prosecutors recommended no jail time for the retired Army Lieutenant General, citing his “substantial assistance” to investigators.

Judge Sullivan ordered the Special Counsel in February to present all evidence favorable to Flynn — then, last week, specifically demanded “302” reports from the two FBI agents who interviewed Flynn in January 2017. One of those men is Peter Strzok, the disgraced partisan who was ultimately fired from the Bureau.

Initially, the Special Counsel only handed over a 302 report of an interview with Strzok about the interview, conducted over half a year after Flynn spoke to agents. After further pressing from Judge Sullivan, Mueller’s team on Monday submitted a 302 report purportedly from January 2017, which was completed two days after Flynn resigned from the Trump administration.

Former FBI Director James Comey boasted last weekend that he broke with established federal “process” to have those agents interview Flynn without counsel and without advising him that his answers could be used against him. A contemporaneous memo from former FBI Deputy Director Andrew McCabe confirms this departure from Bureau norms; McCabe wrote that he phoned Flynn and pressured him to meet with agents “as quickly, quietly, and discreetly as possible.” McCabe told Flynn that he would get the Justice Department (DOJ) involved if the general brought legal representation to the meeting. McCabe has since been fired from the FBI for leaking to reporters and lying about it under oath.

President Trump’s personal counsel Rudy Giuliani blasted the Mueller probe over the weekend, alleging that the investigators who set up Flynn’s plea deal are the ones who broke the law. “I am disgusted with the tactics they have used in this case,” he told Fox News Sunday. “What they did to General Flynn should result in discipline. They’re the ones who violated the law.”

Retiring Congressman Darrell Issa (R-CA) similarly suggested that the “misconduct” seen in the Flynn case should lead to “new protections” for targets charged with process crimes:

I would not be surprised a bit that the conviction of Flynn is overturned because of the Justice Department and the FBI’s misconduct, and that, in fact, we go potentially all the way to Supreme Court with new protections when the FBI and the Department of Justice lies to somebody and tricks them into making statements, and then charges them with a lie that they entrapped them in.

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