Will Michael Flynn Get Away With It?

Listen to this episode

S1: So, Dullea, have you read this latest letter from the Department of Justice alumni group?

S2: Yes, the one the one that 2000 former DOJ officials have signed?

S1: Yeah, they sound exhausted to me. If I were one of these former prosecutors, I’d be exhausted, too. Over the last year, they have tried to sound the alarm again and again about the rule of law under the Trump administration, especially under Attorney General William Barr. They’ve written letters to protest the way the DOJ handled the Mueller report to protest the reduced sentencing recommendation of Trump friend Roger Stone. And now they’re talking about the case against former Trump advisor Michael Flynn, which the DOJ decided to suddenly drop cold turkey last week.

S2: I think that they simply feel as though like a brisk thwack across the nose is going to make Barr say, like, wait, I’m violating all norms. And when he doubles down and doubles down again, they’re like, well, what do we do now? I know another strongly worded letters.

S1: Yeah. At some point I’m waiting for them to realize they’re, like, not training a Labrador.

S2: You know, it’s funny, though. I will say, like after I posted my piece about this, I had a bunch of people who actually signed the letter say to me, what do you want us to do? And I had sort of said in my piece, like, chain yourself to the building. Like, the truth is, I don’t know what you do.

S1: Some prosecutors are making their opinions known not by speaking up, but by refusing to speak at all when the Department of Justice decided to drop this case against Michael Flynn last week. Even though Flynn pleaded guilty to lined FBI agents, the move was notable for a lot of reasons. But one of them was the absence of the lawyers who had spent years working the case. They refused to sign the paperwork.

S2: I mean, these are, I think in lawyer speak, they’re called noisey withdrawals, right? It means that they’re sliding away. They’re ghosting into the night. Perfectly clear what they’re telegraphing. But I think what happens when you send up a signal and nobody understands it, you’re stuck either way. You either stay on and commit malpractice or you leave and become another sort of ineffectual former DOJ lawyer shaking their fist at the sky.

S1: Today on the show, the twists and turns in the case against Michael Flynn and why it matters. There’s a reason so many government attorneys are doing everything they can in their lawyerly way to get your attention right now. I’m Mary Harris. You’re listening to what next? Stick with us. To understand how the Michael Flynn case ended up here, it helps to rewind, understand who Michael Flynn is.

S3: Flynn was a shoo in to be Trump’s national security adviser. Some even floated his name as a potential vice president. Though Flynn had been director of the Defense Intelligence Agency under President Obama, his views had moved sharply to the right.

S4: Over the years that the Democratic Party that exists in this country is not the Democratic Party that I grew up around in my in my upbringing. Not at all. Change registration. You change registration. I vote for leaders.

S3: That’s what Flynn even led the crowd at the Republican National Convention in chants of lock her up, lock her up.

S5: Lock her up.

S4: If I did a tenth, a tenth of what she did, I would be in jail today.

S3: Flynn brought Washington insider connections to a transition team otherwise filled with outsiders before Trump even took office. Flynn was getting involved with highly sensitive foreign policy. A few weeks after the election, Sergei Kislyak, who is Russia’s ambassador to the U.S., gave Flynn a call. He was worried about sanctions. President Obama had put in place a punishment for Russia’s meddling in the 2016 election. He was wondering, should Russia respond here?

S1: Escalate things? And Flynn tells him, just sit tight. And that’s why we’re talking about a criminal investigation into Flynn now four years later.

S2: Behind the scenes, Slinn was saying, don’t go, don’t go crazy because we’re going to make this okay. And the only reason any of this is important, Mary, is because. What Flynn is being investigated for is whether he is susceptible to blackmail by the Russians. Right. This is a counterintelligence question. Is he doing something that puts him in a position where the Russians can blackmail him in the future? And does that necessarily make the U.S. government vulnerable to more Russian interference? That was the issue that was being investigated. What they end up getting him for is he just lied about this Kislyak phone call. He lied to Mike Pence. Mike Pence then lied to America.

S6: Did Mike Flynn ever discuss lifting sanctions in any of those conversations? You know, I talked to General Flynn yesterday and the conversations that took place at that time were not in any way related to new U.S. sanctions against Russia or the expulsion of diplomats. All right.

S2: Second question. But the issue wasn’t that he lied. That’s certainly the thing they tag him for. The issue is once he’s lied, the Russians know he’s lied. Now the Russians have something to use against him. And that was the basis of the inquiry.

S7: That’s I think that’s a really important point, because they feel like the the focus becomes so much on the lie itself and like what he was lying about and and why he was lying. But you’re right that, like, the focus is really on whether he’s vulnerable as the national security adviser, as someone inside the White House. You know, just kind of steps away from the president.

S2: That’s the issue, is that all of this, had it gone undetected, would have made him subject easily subject to more Russian blackmail. And that’s, I think, the lens through which you have to try to look at this.

S3: So Flynn is an adviser during the transition to the Trump presidency. And then he assumes this national security adviser role. But I think in an interview that you did receive, Susan Hennessey. She called it like the world’s briefest tenure in that role because he was fired almost immediately after being caught in this lie.

S7: And the thing about it is that even at the time, President Trump seemed to be saying he’s still a good guy. It was just a little lie. It’s no big deal.

S2: Right. And that’s the thing. Remember, that was what he went when when Trump had his crazy tete a tete with Jim Comey, where he cleared the room and he said, can you see your way clear to making this go away? That was about Mike Flynn. So, yeah, I think all the way through, Trump was like, who among us doesn’t lie 40000 times a day? And so this was always I think Trump’s view was the lie was inconsequential, although, again, worth pointing out. Trump fires him from this position.

S7: So one of the most interesting things about the Michael Flynn story is how he shape shifts over time. Because Flynn gets fired from the White House and he’s caught in this lie. And it’s clear that, you know, he’s going to be investigated and he’s going to face legal trouble and he makes a decision which is reasonable. It’s the kind of thing a lot of people in his situation would do. He decides to cooperate with the investigators. He pleads guilty. Is he helpful to the investigators at that point?

S2: I think he was initially very helpful. And I think this is one other thing we should just note parenthetically, people plead guilty all the time. Right? This is arguably a huge problem in the justice system, is that people plead guilty because they have some court appointed attorney who has, you know, a file folder with one piece paper in it and they say take the plea. So it’s easy to think. And this is again, we see this in, you know, the conversation around Flynn, like poor guy. You know, he he was entrapped and he took this plea and he didn’t do it. This is an incredibly sophisticated government actor who has incredible lawyers. This is not some poor guy who, like, shoplifted at Wal-Mart. This is somebody who has been a public figure for a very, very long time and represented by counsel, not once but twice pleads guilty and says, yes, I did all these things. And so I think it’s just important to separate him from the many, many sorry souls who plead guilty without the advice of counsel, without a sophisticated knowledge of what that implies. So that’s just like a sidebar. But but then I think you’re you’re absolutely right. He cooperates with the Mueller investigation initially. They’re really happy with his cooperation. I think there’s a feeling that he’s giving useful intel and he appears all over the Mueller report. And then I think that he felt as though he was not getting the kinds of rewards back for his cooperation that he expected.

S1: Flynn was facing a possible prison sentence despite the fact that he’d been cooperating with the investigation. So what does he do? He blows up his plea deal, fires his attorney and hires new counsel.

S2: And he said, you know what? I changed my mind. I know I pled I pleaded guilty twice, but I’m not guilty. The FBI was inappropriate in real time. We saw him revert from I did something bad. I’m going to try to act honorably. I’m going to admit to it and take my lumps, too. It never happened. And if it happened, so what? Everybody lies.

S7: You mentioned that Flynn got this new attorney and she was quite key in bringing out this new evidence from FBI investigators that this team claimed showed a kind of entrapment of Michael Flynn. Can we talk about what that evidence was?

S2: Yeah, I think it’s just internal notes. It shows that there was dissension as between the FBI and the Justice Department. You know, there was one impulse to close the investigation into Flynn during the transition. There was another to keep it open. It was never closed. And so the idea that this investigation was somehow illicitly reopened after being closed is not factually true. But I think that there was just a dispute as between the FBI and the Justice Department. I think the FBI got out over its. He’s and did some things that the DOJ didn’t agree with, but I think that the entire notion that this is, quote unquote, brand new information that no one has seen. This is all stuff that Rod Rosenstein knew about. There’s not much that is new that has surfaced. But I think that what it does is it serves the same narrative that the FBI is illegitimate. The DOJ got worked and they agreed to go forward with this illegitimate prosecution. And I think that the real story is this happens all the time. There’s always sort of intra inter agency bickering. And the fact that there was disagreement between the FBI and the Justice Department doesn’t mean that what the FBI did was entrapment or unlawful or not legitimate. But that’s the story that’s been told really effectively.

S7: I like that you brought up that this evidence wasn’t new. It had just always been there. And it’s sort of just the way you package it and present it to people, because it did take off in right wing media circles over the last year. This idea that Michael Flynn was entrapped and was it was based on notes basically that were in the file. I think if you’ve worked in an office and brainstormed, you’re sort of used to, you know, people jotting down things like what’s our goal here? And it seems like I guess you could see it as entrapment. But it also seems like the kind of stuff you jot down when you’re in a meeting with someone and you’re trying to figure something out.

S2: Yeah. This is just tactics. This is what prosecutors do all the time. I would commend to people, you know, the best place to look as ever is Marcy Wheeler at Emptywheel, who sort of walks through all of this, quote unquote, newly discovered material. And at least Marcy’s view is there’s not a single thing in here that is new. And I think more pointedly, try to remember who wrote the piece in The Washington Post. But they said the one new thing that we could see that we’ve never seen is the actual transcript of the call between Mike Flynn and Sergei Kislyak. In other words, that would be useful new information to know what was actually said in that call. That’s been withheld. And what’s been unearthed is this shattering new revelations. Is stuff that’s been available to the judge all along.

S7: It really struck me that just last month the president was asked about Michael Flynn and whether he would pardon him. And he seemed to priess sage. What’s happened in the last week or so? And he said, look, I’m not the judge, but, you know, I don’t know that we’re going to need to pardon him.

S8: He looks to me like Michael Flynn will be exonerated based on everything I see. Not the judge, but I have a different type of power. But I don’t.

S7: It was just kind of jaw dropping, looking back that the president would say that. And then a few weeks later, his attorney general would decide to drop charges.

S2: And I think that goes to how radically unprecedented this is. This just doesn’t happen that the DOJ, after having elicited, you know, two guilty pleas awaiting sentencing to have the Justice Department just be like it were out as by the way, it was radically unprecedented for a bunch of career prosecutors to say this is the sentence we recommend for Roger Stone and then just have political appointees at the very top helicopter and it be like, just kidding. We’re going to give him a slap on the wrist. And so I think we’re seeing actions coming out of the Justice Department that we just don’t see.

S7: Were you surprised? Yeah.

S2: Yeah, yeah, I was. Because I think we all were ready for the pardon. And I think Trump has already shown us that he doesn’t hesitate to use his pardon powers indiscriminately. And so I think that there was a sense that, look, he’s got an easy way to do this in a house way, reach out and get the Justice Department to compromise its own standards when he can just do it and not be held to account. And that’s, I think, why there’s this underground ripple of real alarm, because I think it’s one thing for the president to abuse his pardon powers. It’s something entirely different when the Justice Department has been conscripted into that project. So you’re saying this is. Worse? Well, yeah, I don’t think there’s any dispute that this is worse. This is now using the apparatus of the legal system to do a thing that Trump could have done on his own steam. But now he’s really creating and that’s what you’re reading, that anxiety in the former Justice Department employees letter. Once you’re out of the realm of Donald Trump’s abusing his pardon power into Donald Trump has created a two tiered system of justice where his friends and cronies and loyalists see the charges against them vaporize. And he is kind of rejiggered the Justice Department to prosecute and go after anyone who wasn’t loyal to him. That is a whole other thing. And that’s why you’re seeing that thread of this is what totalitarian governments do. You’ve just commandeered the DOJ to do a thing that is anathema to just basic ideas of rule of law.

S7: And it very neatly does two things at once. It consolidates power, makes clear that Trump is the decider and leans towards authoritarianism. And it also is part of sweeping under the rug. The Mueller investigation and saying, no, no, that wasn’t real.

S2: That’s true. And it goes further. It recasts the Mueller investigation as a witch hunt and a hoax. It recasts the impeachment probe as a witch hunt and a hoax. And so it’s not just that it’s saying it wasn’t real. It’s saying that any attempt by any entity, be it Congress, be it, you know, a special prosecutor or be it somebody within the Justice Department, any attempt to hold this president or his administration to account is a purse, say, illegitimate enterprise. And so it’s beyond just sweeping it under the rug. It’s setting up the next and the next and the next.

S1: Dolia says this is what makes Barres Justice Department not just bad, but insidious. The motion to dismiss the Flynn case. It isn’t just about the Flynn case, my pal Longshot. And I guess we should be clear here, which is the judge here, Judge Sullivan. This judge could reject the DOJ as motion here. Right, and decide, listen, you don’t get to have boxes.

S2: I think Judge Sullivan’s been really interesting. Right? He said through I mean, I think at one point he made headlines by just excoriating Michael Flynn. I think he used the word treason at one point. So he has been very, very hard on Flynn in these court proceedings. And certainly he he it is his to accept or reject this motion. But I do think that at the end of the day, the consensus seems to be he certainly can’t force the Justice Department to continue with the prosecution that they say they don’t want to bring in. So, Judge Sullivan, I’ve seen an awful lot of suggestions saying that Judge Sullivan not only can but must use his sort of independent authority to ask, for instance, the prosecutor who stepped off this case to explain why he did that. There’s precedent for that. Appoint someone as a friend of the court to investigate what happened internally at DOJ, just to have hearings to resolve some of the factual questions that the Justice Department has flipped itself on. And so I think he has an independent responsibility to investigate what happened. And so. So it sounds like a lot of people are watching Judge Sullivan. Yeah. And I think we started with this, Mary. I think there’s a lot of what’s being written, including that letter signed by 2000 former DOJ officials. I think that a lot of what we’re seeing is a lot of special pleading, saying to Judge Sullivan, look, this is hinky. And for you to just dismiss it because they’re asking you to dismiss it is a miscarriage of justice. And I think a lot of what we’re seeing this week is some signaling to him that he needs to find out what happened late Tuesday afternoon.

S1: Judge Sullivan signaled he wasn’t ready to throw this case out. He’s allowing new briefs to be filed, seeking more information about the DOJ, his reasoning here.

S7: I want to end the interview by talking about William Barr, because while what happened with Michael Flynn certainly says a lot about the Trump administration and President Trump himself and how he values loyalty, this is a a dance that requires two people. And William Barr has really made clear where. He stands here that he is a loyalist. He will defend the president’s right to do what he wants to do. And he did an interview on CBS This Week where he basically said history is written by the winners when history looks back on this decision.

S8: How do you think it will be written? Well, history is written by the winners. SURCHARGING depends on who’s writing the history. But I think a fair history would say it was a good decision because it upheld the rule of law.

S7: What do you make of that?

S2: Yeah, I mean, I think he’s been very consistent. Nobody can investigate the president. Nobody can indict the president. Nobody can sneeze at the president. I mean, this has been his raison d’être. He’s really made it his business to create this capacious view of presidential power and authority and presidential untouchability. So this is just a Bill Barr special. And I think that there’s no question that Bill Barr has a deep sense that justice is about winners and losers.

S9: It’s not about justice. It’s about who has power and who doesn’t. And his view of the world is that I’m winning and I’m untouchable. And you’ll sign your funny little letters. But I’m the decider. Trump is the decider. And this has worked. And so I think in a strange way, what he’s saying is what he believes to be true, which is that he’s one.

S10: Dial Wick, thank you so much for joining me. Thank you. Dial Lithwick writes about the courts and the law for Slate. You can hear more of Daliah on her podcast, Amicus. And that’s the show. What Next is produced by Jason Leone, Mary Wilson and Daniel Hewett. We love hearing from you, especially right now as we are all dealing with the corona virus down together.

S3: If you’ve got a story about how your quarantine is going, how the corona virus is impacting you, get in touch. It could become a story for us.

S10: The number to call is two zero two eight eight eight two five eight eight. Thanks for listening. I’m Mary Harris. I’ll talk to you tomorrow.