Flynn: The Main Case

Flynn was charged with lying to FBI agents when they visited him in his office (without telling him he was under investigation or warning him that false statements to them would be felonies) and told them that he didn’t talk to the Russian ambassador about the US lifting trade sanctions. He pled guilty to this, but without being allowed to see the transcripts of his phone call with Russian ambassador. The FBI had these transcripts, and they clear Flynn. They show that he was correct in not remembering such a conversation (which in any case would have been perfectly legal and proper for someone advising an incoming Administration)– they didn’t talk about trade sanctions, but about tit-for-tat expulsions of diplomats started by the US after Obama accused Russia of interference in the November 2016 election. From New Flynn Transcripts Confirm Mueller Team Lied To The Court and the Country, Margot Cleveland, The Federalist, June 2020:

Newly confirmed Director of National Intelligence John Ratcliffe on Friday shared with congressional oversight committees the summaries and transcripts of intercepted communications between Flynn and Kislyak. The move followed former acting Director of National Intelligence Ric Grenell’s decision to declassify nearly all portions of the Flynn-Kislyak telephone conversations from late 2016 and early 2017.

Flynn, who pleaded guilty Dec. 1, 2017, to making false statements to FBI agents Peter Strzok and Joe Pientka during a Jan. 24, 2017 interview of Flynn. In a “Statement of Offense” filed that same day with the D.C. District Court, federal prosecutor and Mueller team member Brandon Van Grack “stipulate[d] and agree[d]” that the facts detailed in the Statement of Offense were “true and accurate.”

Van Grack then attested in the Statement of Offense that Flynn knew that “on or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s action intended to interfere with the 2016 presidential election (‘U.S. Sanctions’).”

The Statement of Offense … on Dec. 29, 2016,

FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner... “FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (‘Russian Ambassador’) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia,” and “also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FLYNN’S request.”

…. Flynn never raised the “U.S. Sanctions” — defined by the special counsel’s office as the sanctions announced by Obama Dec. 28, 2016, in Executive Order 13757 — with the Russian ambassador at all.

In that executive order, as summarized in a White House press release, Obama “sanctioned nine entities and individuals: the GRU and the FSB, two Russian intelligence services; four individual officers of the GRU; and three companies that provided material support to the GRU’s cyber operations.” …

Of relevance to the Flynn case was the State Department “shutting down two Russian compounds, in Maryland and New York, used by Russian personnel for intelligence-related purposes,” and declaring “‘persona non grata’ 35 Russian intelligence operatives.”

While the Obama administration ejected the Russian personnel in response to the Kremlin’s interference with the 2016 election, the expulsions were not part of Executive Order 13757 and thus were not “U.S. Sanctions” as defined in the Flynn Statement of Offense. ...

Instead, what Flynn discussed with Kislyak on Dec. 29, 2016, concerned the expulsion of the Russian diplomats.

“So, you know, depending on, depending on what actions they take over this current issue of cyber stuff, you know, where they’re looking like they’re gonna, they’re gonna dismiss some number of Russians out of the country, I understand all that and I understand that, that you know, the information that they have and all that, but what I would ask Russia to do is not — is is — if anything — because I know you have to have some sort of action — to, to only make it reciprocal. Make it reciprocal. Don’t — don’t make it — don’t go any further than you have to. Because I don’t want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?”

Kislyak responded that he did but that Flynn needed to “appreciate” that sentiments were raging in Moscow. Flynn noted he appreciated the situation but didn’t want to get into a scenario “where we do this and then you do something bigger, and then you know, everybody’s got to go back and forth and everybody’s got to be the tough guy here.” Flynn stressed, “[W]e need cool heads to prevail … to fight the common threat in the Middle East.”

At that point, Kislyak mentioned “sanctions” for the first time, noting that “one of the problems among the measures that have been announced today is that now FSB and GRU are sanctioned,” and Kislyak said it makes him ask himself if the United States remains willing to work on terrorist threats.

Flynn did not respond to Kislyak’s mention of sanctions with a similar plea to moderate any response. Rather, he merely acknowledged Kislyak’s comments with a “yeah, yeah,” and then Kislyak noted “that was something we have to deal with, but I’ve heard what you say, and I certainly will try to get the people in Moscow to understand it.”

… “If you have to do something, do something on a reciprocal basis … because if we send out 30 guys and you send out 60, you know, or you shut down every Embassy, I mean we have to get this to a — let’s, let’s keep this at a level that is, is even-keeled, okay? Is even-keeled.”

…It is blatantly false to say, as Mueller’s team did, that “FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.”

The Statement of Offense likewise wrongly maintained that Flynn had “falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FLYNN’S request.”
… the declassified transcript of the Dec. 31, 2016 call confirms the Russian ambassador also did not mention sanctions in the follow-up conversation.
… Kislyak told Flynn he had “a small message to pass to you from Moscow,” about “the decision taken by Moscow about action and counter-action.” Kislyak noted that Moscow had taken into account Flynn’s prior conversation with the Russian ambassador and his entreaty to let “cold heads” prevail.

Kislyak added that Moscow found the “actions have targeted not only against Russia, but also against the president elect,” and that while they were within their right to respond, Russia “decided not to act now because, it’s because people are dissatisfied with the lost of elections, and it’s very deplorable.”

“So, so I just wanted to let you know that our conversation was taken with weight,” Kislyak concluded.

While Flynn pleaded guilty to that charge, he did so having not seen the transcript of his actual conversation with Kislyak. In seeking to withdraw his guilty plea, Flynn said he still doesn’t “remember if I discussed sanctions on a phone call with Ambassador Kislyak.” As Flynn’s attorney Sidney Powell told me, his defense team “has been asking for the transcripts and recordings of his conversations with Ambassador Kislyak for almost a year.”

Yet Van Grack, the federal prosecutor who has since been removed from the Flynn case, refused to provide Powell with the transcript. Powell only received access to the details of the call following the recent declassification and release.

Further, Powell should not have even needed to ask for the transcript because presiding Judge Emmet Sullivan entered a standing order requiring the special counsel’s office to provide Flynn’s attorneys with all material exculpatory information. Yet Van Grack withheld the transcripts.

Later, when Sullivan directly ordered the government to file “the transcripts of any other audio recordings of Mr. Flynn, including, but not limited to audio recordings of Mr. Flynn’s conversations with Russian officials,” Van Grack refused, telling the court instead that it is not relying on that recording “for purposes of establishing the defendant’s guilt or determining his sentence.”
The Mueller report falsely stated,Flynn discussed multiple topics with Kislyak, including sanctions. … With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a ‘tit for tat,’ and only respond to the sanctions in a reciprocal manner.”

The Mueller report also inaccurately reported that “on December 31, 2016, Kislyak called Flynn and told him the request had been received at the highest levels and that Russia had chosen not to retaliate to the sanctions in response to the request.”

Elsewhere, the special report repeated this lie, noting that immediately after discussing the sanctions with K.T. McFarland, “who was slated to become the Deputy National Security Advisor,” “Flynn called Kislyak and requested that Russia respond to the sanctions only in a reciprocal manner, without escalating the situation.
… Mueller’s team told the American public, who had no access to the transcripts, that “Flynn falsely stated he did not ask Kislyak to refrain from escalating the situation in response to the sanctions on Russia imposed by the Obama Administration. Flynn also falsely stated that he did not remember a follow-up conversation in which Kislyak stated that Russia had chosen to moderate its response to those sanctions as a result of Flynn’s request.

Mueller’s team explicitly defined “U.S. Sanctions” in the Statement of Offense as the sanctions announced in Executive Order 13757, and the expulsions were not part of that executive order. Second, in its press release, the Obama administration distinguished between sanctions and other “actions” it was taking in response to Russia’s interference with the 2016 election, and the latter included the expulsions.

The special counsel’s report also distinguished between sanctions and other retaliatory measures, stating that Executive Order 13757 “imposed sanctions on nine Russian individuals and entities,” but then noting that “the Obama Administration also expelled 35 Russian government officials and closed two Russian government-owned compounds in the United States.”

Elsewhere, Mueller’s team distinguished between sanctions and other retaliatory measures by, for instance, stating that “on December 29, 2016, the Obama Administration announced that in response to Russian cyber operations aimed at the U.S. election, it was imposing sanctions and other measures on several Russian individuals and entities.”

Then the special counsel’s office repeated this point: “On December 29, 2016, as noted in Volume II, Section II.A.4, supra, the Obama Administration announced that it was imposing sanctions and other measures on several Russian individuals and entities. A third time Mueller repeated this distinction, stating Flynn “spoke with the Russian government when the Obama Administration imposed sanctions and other measures against Russia in response to Russia’s interference in the 2016 presidential election.”

From a Powerline comment:

Despite Sullivan’s assertions to the contrary*, the materiality component (as it relates to impacting an ongoing investigation) of the felony was not met. Court records clearly show Sullivan declares it so met, but then subsequently after such proclamation indicates he has further questions that will need to be addressed in the future by the government as to whether the materiality component was satisfied.
A few months later, the DOJ responds dropping the case as they contend the materiality aspect was NOT satisfied, ergo there was no crime committed. Long story short, Sullivan completely screwed the pooch not establishing materiality and left the door open on his shoddy work that the DOJ ultimately provided an answer. This is a terrible indictment on the competency of Sullivan and his ability to satisfy even simple procedural requirements of Rule 11.
*In short, as Shipwreckedcrew at Redstate affirms: “Judge Sullivan states in open court and on the record he still does not know how the false statements were material. Without knowing that, he can’t determine if there actually is a factual basis for Gen. Flynn’s guilty plea because Judge Sullivan MUST KNOW that factual basis BEFORE he can adjudge Gen. Flynn to be guilty of the offense to which he is pleading guilty.”