So, Did Flynn Lie in Court?

The Barr DOJ's attempt to retcon the Flynn case has created a major problem for Flynn.

Speaking of Michael Flynn, another important twist in that saga emerged this week. Barr’s DOJ has sought to withdraw charges of lying to the FBI against Flynn (charges he has twice pled guilty to). The judge overseeing the case appears not to be impressed with the maneuver. Via The Guardian, US judge asks if Michael Flynn should be held in contempt for perjury:

Michael Flynn could be charged with perjury as the fallout from Donald Trump’s attempt to exonerate his former national security adviser continues.

The Department of Justice announced last week it was dropping its case against Flynn amid pressure from Donald Trump and his political allies. Flynn had testified under oath that he had lied to the FBI, while he also lied to the vice-president, Mike Pence, about his conversations with the Russian ambassador during the transition from the Obama to the Trump administrations, about a possible easing of sanctions for interfering in the 2016 election.

The judge in Flynn’s case, however, on Wednesday asked a former federal judge to examine whether Flynn should face a criminal contempt charge for perjury, given Flynn later changed course and said he had not lied to the federal agency.

Other press reports focus solely on potential contempt charges.

Why might Judge Sullivan be displeased with this turn of events? Well, let’s go to the transcript of Flynn’s sentencing hearing, which I am presenting here in great detail, with the first portion unedited because I think reading the whole thing really underscores the situation that Barr has now put Flynn (all emphases are mine).

Note, this was the second time Flynn pled to these charges. He did so originally in December of 2017. The following is from December of 2018.

(MICHAEL FLYNN, DEFENDANT IN THE CASE, SWORN)

THE COURT: All right. And I will inform you, sir, that any false answers will get you in more trouble. Do you understand that?

THE DEFENDANT: Yes

THE COURT: You have to keep your voice up. If you don’t understand my question, please tell me and I’ll rephrase it. Most importantly, you may consult with your attorney privately before answering my questions or at any point in time. Should you want the opportunity to attempt to withdraw your plea, I will afford you that opportunity. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you wish to challenge the circumstances on which you were interviewed by the FBI?

THE DEFENDANT: No, Your Honor.

THE COURT: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you have any concerns that you entered your guilty plea before you or your attorneys were able to review information that could have been helpful to your defense?

THE DEFENDANT: No, Your Honor.

THE COURT: At the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime?

THE DEFENDANT: I was not — I was aware.

THE COURT: You were aware?

THE DEFENDANT: Yeah.

THE COURT: Your sentencing memorandum also states that you pled guilty before certain, quote, revelations that certain FBI officials involved in the January the 24th interview were themselves being investigated for misconduct, end quote. Do you seek an opportunity to withdraw your plea in light of those revelations?

THE DEFENDANT: I do not, Your Honor.

THE COURT: All right. Now, again, at any time — I should have said this before I started asking questions, but knowing what I was going to do, to have this colloquy with you, I’ve made arrangements for a private room for you and your attorneys to talk about any of these questions and your answers. So, even though I’ve taken a number of answers from you, if you want — if you want that opportunity to speak privately with your attorneys, then I’ll certainly afford you that opportunity as well. Would you like to do that?

THE DEFENDANT: No, Your Honor.

THE COURT: All right. Are you satisfied with the services provided by your attorneys?

THE DEFENDANT: I am.

THE COURT: In certain special circumstances, I have over the years appointed an independent attorney to speak with a defendant, review the defendant’s file, and conduct necessary research to render a second opinion for a defendant. Do you want the Court to consider appointing an independent attorney for youin this case to give you a second opinion?

THE DEFENDANT: I do not, Your Honor.

THE COURT: Do you feel that you were competent and capable of entering into a guilty plea when you pled guilty on December 1st, 2017

THE DEFENDANT: I do, Your Honor.

THE COURT: Do you understand the nature of the charges against you and the consequences of pleading guilty?

THE DEFENDANT: I do understand, Your Honor.

THE COURT: And that was covered extensively by Judge Contreras. I’ve read the transcript. Are you continuing to accept responsibility for your false statements?

THE DEFENDANT: I am, Your Honor.

THE COURT: Do you still want to plead guilty, or do you want me to postpone this matter, give you a chance to speak with your attorneys further, either in the courtroom or privately at their office or elsewhere, and pick another day for a status conference? And I’m happy to do that.

THE DEFENDANT: I appreciate that, but no, Your Honor.

The transcript shifts into a lengthy interchange with Flynn’s lawyer, Kelner. The whole thing is at the link above, but I would note the following:

THE COURT: Do you wish to seek any additional information
before moving forward to sentencing?

MR. KELNER: No, Your Honor.

THE COURT: Do you believe the FBI had a legal obligation to warn Mr. Flynn that lying to the FBI was a federal crime?

MR. KELNER: No, Your Honor.

THE COURT: Is it your contention that Mr. Flynn was entrapped by the FBI?

MR. KELNER: No, Your Honor.

THE COURT: Do you believe Mr. Flynn’s rights were violated by the fact that he did not have a lawyer present for the interview?

THE DEFENDANT: No, Your Honor.

THE COURT: Do you believe his rights were violated by the fact that he may have been dissuaded from having a lawyer present for the interview?

MR. KELNER: No, Your Honor.

THE COURT: The sentencing memorandum also states that Mr. Flynn pled guilty before certain, quote, revelations that certain FBI officials involved in the January 24th interview were, themselves, being investigated for misconduct,” end quote. Is it your contention that any misconduct by a member of the FBI raises any degree of doubt that Mr. Flynn intentionally lied to the FBI?

MR. KELNER: No, Your Honor.

Later in the interchange, Kelner states, “General Flynn has been, I think, clear from the beginning and will be clear again to you today tha.t he fully accepts responsibility, stands by his guilty plea, which was made based on knowing and willful conduct.”

After some more judge-attorney talk, the Sullivan again addresses Flynn:

THE COURT: All right. Thank you, Counsel. Thank you both.

Mr. Flynn, anything else you want to discuss with me about your plea of guilty? This is not a trick. I’m not trying to trick you. If you want some time to withdraw your plea or try to withdraw your plea, I’ll give you that time. If you want to proceed because you are guilty of this offense, I will finally accept your plea.

THE DEFENDANT: I would like to proceed, Your Honor.

THE COURT: All right. Because you are guilty of this offense?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. I am satisfied that Mr. Flynn entered his guilty plea while competent and capable. He understood at that time the nature of the charges against him and the consequences of pleading guilty. Having carefully read all the materials provided to the Court in this case, including those materials reviewed under seal and in-camera, I conclude that there was and remains to be a factual basis for Mr. Flynn’s plea of guilty. As such, there’s no reason to reject his guilty plea and I’ll, therefore, move on to the sentencing phase.

This is pretty direct: Fylnn admitted lying to the FBI, which is a criminal offense. Barr can play games about whether the offense was “material” to the Russia probe (IANAL, but I don’t see how it logically wouldn’t be). The only reason to pretend like Flynn’s contact with Russia was not material is if one wants to pretend like there was no reason to investigate Russian interference in the election, but while one can dispute the exact nature of the relationship between the Trump campaign and Russia only a fabulist can make the case that there were no Russian attempts to interfere in 2016.

Beyond materiality to the Russia probe, the US Government has a clear interest that the National Security Advisor not lie to law enforcement about contact with foreign governments. (Or, really, lie to the FBI at all).

And if Flynn now wants to pretend like he is innocent, what is to be made of his performance in court? Hence, the potentiality for perjury and/or contempt charges. For that matter, if his attorney’s advised him to plead guilty to a crime that the DOJ now says they can’t effectively prosecute, they should be sued for malpractice, yes?

There is also the fact that Flynn testified above that he was not set up by the FBI and that he knew at the time that lying to the FBI was a crime, He seems, now to be reversing that position. The phrase “tangled web we weave” comes to mind.

I understand why Flynn would want a get out of jail free card, but let’s not ignore that he admitted to lying to the FBI under oath. And pled guilty to that crime in open court twice, while being afforded every opportunity to back out of that plea.

FILED UNDER: Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Michael Reynolds says:

    Looks like Trump will have to pardon him. At which point Flynn loses his 5th amendment protections. Barr will quash any further charges, but the House can subpoena Flynn to testify, minus 5th amendment or executive privilege.

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  2. Sleeping Dog says:

    I suspect Barr knew that it was likely that the Flynn case would reach this point and the whole thing was theater in an attempt to discredit the Mueller investigation and the House/Senate intelligence committee reports. They’re playing to the rubes.

    For whatever reason Tiny doesn’t want to pardon Flynn, at least not yet with the most likely reason Flynn’s loss of 5th amendment protection. He also likely believed that he could roll the judge.

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  3. Gustopher says:

    I’ve been really enjoying Judge Sullivan.

    I don’t understand how the Justice Department can drop charges after Flynn has been found guilty, and after presenting the sentencing recommendations. It seems a little late in the game for that.

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  4. flat earth luddite says:

    Steven, it seems obvious to me, there are three options:
    1. He lied to the FBI, knew he lied, and pled guilty because he knew he was;
    2. The evil corrupt overlords at the FBI set him up and he was coerced into accepting the plea
    3. He is so addled and incoherent that he didn’t know what he was doing, and now denies that he ever did anything, anytime, anywhere…

    Oh wait, option 3 can’t be on the table, as that’s Pres. Orange’s job and position in this farce. and AG Barr as humble shield-bearer to POTUS.

    As an aside, in 30 years of being Della Street to various attorneys in various practices, including criminal, all that comes to mind is “Wow, why didn’t the guy climbing out of the window carrying a stolen TV come up with this one?” Dude, go back before hizzhonor and say, “nope, I’m guilty, I did it, let me go back to my cell.” Show some spine, man!

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  5. Pylon says:

    Never has “were you lying then or are lying now” been more appropriate.

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  6. Teve says:

    Ben Garrison’s Michael Flynn cartoon.

    Not his usual insanity, just stupid. If you want to see insane, you want this cartoon.

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  7. Mark Logan says:

    @Michael Reynolds:

    He’s clearly trying to avoid pardoning Flynn and losing the 5th he most likely reason.
    That wouldn’t be a worry for Trump if he trusted Flynn in the same way he trusts Roger Stone though. Flynn could, in a variety of ways, still tell Congress to pound sand and there isn’t much Congress could do about it.

    Trump’s a good con man. His gut is telling him that Flynn can’t be trusted to place loyalty to Trump ahead of loyalty to the nation in all situations. His gut is quite probably correct in that assessment. Trump started pressuring Comey very early on. He’s afraid of something that Flynn might say.

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  8. Michael Cain says:

    Let’s see if I have this straight. The prosecution (DOJ) has said they are no longer interested in pursuing the case and wish to withdraw the charges. So Flynn has effectively said, “Well, if the DOJ is going to drop the charges, I’d like to withdraw anything I might have said about lying to the FBI.” With an unspoken, “As having that on the record would interfere with my ability to get security clearances in the future and pursue my lucrative career as a consultant and lobbyist.” Which in an odd sort of way actually makes sense. If we’re having Schrödinger’s charges, maybe we should have a Schrödinger’s plea, and Schrödinger’s testimony.

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  9. OzarkHillbilly says:

    Steven, your post is much much longer than necessary. You could’ve just said,

    “Yes.”

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  10. Gustopher says:

    @Teve: The insane one… Oh, my god, I remember Robert David Steele. No one takes him seriously do they? For anything?

    Long ago when I was working for Amazon they would have people come in to speak. Sometimes with basically no vetting. They decided to get the guy who Amazon’s algorithms rated at the best reviewer of non-fiction on the site, because obviously he had great things to say, and the top reviewer of all books wouldn’t appear.

    I don’t remember everything he had to say, because he went through 120 slides in 45 minutes. But it was all insane.

    Key things I do remember:
    – “There are one billion native English speakers in India, ready and willing to write erotica on demand. As much as you need, for whatever you like. Cheap.”
    – “If the Earth’s magnetic poles flip again, Amazon is well positioned to become a north-south vendor of information.”
    – “This sounds like a Google idea, but it isn’t because Google is in bed with the CIA! No one would trust them!”
    – “People’s attention spans are nothing. They get almost nothing from a book. You can do great things selling smaller and smaller bits of information to just the right people.”
    – “open source intelligence means we can put all the spies out of work, and then hire them up in advertising.”
    – “Is there anyone from the reviews group here? Because I would love to take you all out to a bar and tell you how I think we make reviews better. Anyone? No? Don’t be shy. I’ll just hang around for a bit when I’m done, come up and introduce yourselves.”

    My memory may not be 100%. But this man is crazy.

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  11. @OzarkHillbilly: Actually, I think the answer is “no” as he admitted to lying to the FBI.

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  12. OzarkHillbilly says:

    @Steven L. Taylor: Or as @Pylon: noted “Never has “were you lying then or are lying now” been more appropriate.”

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  13. Hal_10000 says:

    I understand the idea of charging Flynn with perjury but doing so would set an EXTREMELY dangerous precedent. This is not about Flynn, this is about the many many people who plead guilty to crimes they haven’t committed because of plea bargain deals that get them out of jail or prevent a massive sentence. This is about people who, even when pleading guilty to crimes they have committed, have to agree with LE’s framing of the crime, which often contains false details. A friend of our family ended up going to prison (and dying there) because he refused to take a plea deal that would have given him probation because he claimed he was innocent and didn’t want to lie under oath.

    The govt would now have a catch-22. If you can ever prove your innocence, they can now turn around and charge you with perjury. This is bad. And we shouldn’t encourage it.

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  14. Matt says:

    @Hal_10000: Flynn is not “many many people who plead guilty to crimes they haven’t committed because..”. Flynn is not some poor (usually minority) person who’s getting fked by the system into giving a false plea because they cannot afford a good attorney. Conflating those two does a tremendous disservice to those that have truly experienced what you’re claiming. It also provides cover for rich/connected people to go free after committing blatant crimes they were aware were crimes. Getting out of charges simply because they have the money and connections…

    As someone who has advocated for criminal justice reform including stopping situations that cause false confessions I find your post outright offensive…

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  15. wr says:

    @Hal_10000: Astonishing how many right-wingers suddenly discover that the justice system is rigged against suspects once a high-ranking Republican gets caught. And yet, next time some black kid gets popped because he vaguely resembles a description of a criminal — “uh, he was black”– all that hard-won desire for justice magically disappears.

    Call when you have concerns about the treatment of someone who isn’t rich, white, or connected.

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  16. @Hal_10000: I don’t follow your logic. These circumstances are practically sui generis: the defendant pled guilty and then the government decided to withdraw the prosecution. My point about the testimony is that he had all kinds of opportunities to not plead, and had a high powered law firm. If the government’s case was truly as weak as Barr claimed it was, he wouldn’t have pled (and, again, twice)c. Moreover, if he thought there was a defense based on FBI coercion he had the chance to tell the judge that (not to mention have his attorneys put on on an affirmative defense).

    Regardless, I am not seeing the broad applicability of anything that happens here to the overall justice system.

    Having said that, I do expect, ultimately, Sullivan to have to let the case go since if the government doesn’t want to prosecute, the court can’t make them.

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  17. Bob@Youngstown says:

    @Steven L. Taylor:

    since if the government doesn’t want to prosecute, the court can’t make them.

    Steven, what I’m failing to understand is this:
    1) the government has already completed it’s prosecution, the government has turned over the case to the judge for judgement, who has found the defendant (self-admittedly) guilty.
    2) the order of punishment (or sanction) is now in the hands of the court. The court can now determine if punishment is warranted (and may well look to the prosecutors for recommendation)

    Now, I suppose that the government could take the position that: Yes, Flynn did commit a crime, and he has admitted committing that crime, but we really should have ignored (not prosecuted) the commission of a crime because…..

    IMO, the prosecution phase of this case has been completed, the ball is now in Sullivan’s hands to order sanction or not.

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  18. @Bob@Youngstown:

    IMO, the prosecution phase of this case has been completed, the ball is now in Sullivan’s hands to order sanction or not.

    Final sentencing had been delayed, hence the prosecution was not complete.

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  19. Mark Logan says:

    @Hal_10000:

    Hal, the situation here seems to be the judge is convinced that Flynn committed the crimes he has plead guilty to, and the recent motion by the DOJ to drop the charges isn’t valid.

    There are a couple inherent slippery slopes in allowing prosecutors the power to act in this way. They can harass people with phony prosecutions, and it opens to door to prosecutors being bought off. Glen Kirshner walks through it:

    https://www.youtube.com/watch?time_continue=3&v=56c7BJm2skw&feature=emb_logo

    As Glenn mentions this is the same judge that got Ted Stevens off the hook when a prosecutor was dishonest, and any accurate assessment of Flynn’s guilt has to include full access to the Kislyak conversation. That tape is still unavailable to the public because Trump wants it that way. Of all slippery slopes, having a POTUS which can use the DOJ as a personal lawyer may be the steepest. Such a POTUS would then be effectively above the law, if not the law itself.

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  20. Bob@Youngstown says:

    @Steven L. Taylor:

    Final sentencing had been delayed, hence the prosecution was not complete

    Final sentencing is the province and jurisdiction of the judge, not the prosecutors. They can recommend sanctions, but cannot compel the judge to order a specific sentence- or no sentence. Hence, my conclusion that the prosecutor’s task/role as been completed. (Unless you view the judge to be a prosecutor – something that doesn’t really fit the description of ‘fair and unbiased’)

    You seem to be taking a broad view of “prosecution”, which leads me to ask: When, in your view, is “prosecution” completed? Is it after final sentencing, after all appeals are concluded, after being remanded to custody, after being released from custody?

  21. @Bob@Youngstown: This isn’t a philosophical discussion, nor just my interpretation. The bottom line is that Flynn hasn’t been sentenced and therefore the prosecution of the case is not over. Withdrawing the charges before the sentence is rendered removes the plea because if the case it is withdrawn, there is not to plea to.

    If the DOJ isn’t charging Flynn, then there is no case to prosecute. The court can charge him in the stead of the DOJ.

    I am no expert in this, so I may be missing something, but everything I have read and heard fits what I have described above.

    If Flynn had been sentenced, the process would have been concluded and the only avenues at that point would be appeal or pardon.

    I don’t like any of this, but it doesn’t change the reality of it.

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  22. Susan says:

    @Steven L. Taylor: As this point, isn’t the only option prosecutors have is to file a motion to dismiss the case? And isn’t it up to the judge whether to accept that motion? Normally, a judge would accept a prosecution motion to dismiss, but this is not a normal case.

  23. @Susan: Stipulating that the case is extremely weird, here’s the question: if the prosecuting authority withdraws the case, on what basis would the judge go forward?

    I will grant, the judge can, theoretically, deny the motion, but if the prosecution doesn’t want to prosecute, what is the likely outcome? If the prosecution agrees with the defense that the defendant should be set free, what kind of trial will there be?

  24. Bob@Youngstown says:

    @Susan:
    INAL, but I’d anticipate that a judge would expect a good reason to accept a motion to dismiss. I’m thinking that: ‘We’ll your honor, we acknowledge that he is guilty, but the President really doesn’t want to pardon him so he can get off. So the President wants you to let this guy who has admitted his guilt be absolved by you, Judge. So sorry that we wasted your time, but until the President was able to get toadie in as AG, we were really interested in enforcing and executing the rule of law, but not so much anymore.’
    Somehow I don’t see the judge looking kindly on that pleading.

  25. @Bob@Youngstown:

    Somehow I don’t see the judge looking kindly on that pleading.

    And he clearly isn’t happy.

    However, again, if DOJ does not want to prosecute, Flynn will withdraw his plea since he has not been sentenced. If the judge says the case is going forward, who is going to do the prosecution’s part?

    And if Sullivan enforces the plea, even with DOJ withdrawing the charges, do you really think that the conviction will survive the appeals process?

    Note that I am not defending DOJ, but am just assessing the logical possibilities.

  26. Bob@Youngstown says:

    @Steven L. Taylor:

    If the judge says the case is going forward, who is going to do the prosecution’s part?

    The prosecution has already done it’s part I can’t see that the prosecution has any further role to play. (already filed two pre-sentence recommendations).

    The government, in other words, has reached the end of the road. The only thing left to do in this case is the “imposition of sentence,” which, as the Ammidown court observed, “is a matter for discretion of the trial judge.” In this posture, the real separation of powers threat is thus not that the judge will intrude on the prosecutor’s domain but rather that dropping the case would be “an intrusion on the judicial function,” given (to quote Fokker) “the Judiciary’s traditional power over criminal sentencing.”

  27. Bob @ Youngstown says:

    @Steven L. Taylor:
    Don’t know where the link went for that last blockquote, will try again.
    LINK

  28. @Bob @ Youngstown: I will read the piece.

    Again, I think Flynn deserves to be sentenced. I am still having a really hard time seeing how a conviction wouldn’t be overturned on appeal.

  29. dazedandconfused says:

    If he is sentenced I’ll predict this won’t make it to appeal. Trump will pardon him before he has to spend a day in jail.

    The fun part will be this side hearing Sullivan has created. In it the DOJ will have to fully explain itself. I see Shea, the guy who filed this for Barr, has already been moved out. It’s easy to imagine Shea insisting he not be forced to actually defend this crap publicly. Barr couldn’t do that to an old friend, I guess.

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