Judge Sullivan's Challenge

Despite the fact that Judge Emmet Sullivan totally shot himself in the foot with his absurd speculation regarding the possibility of General Michael Flynn being charged with treason, it does appear that he remains focused not only on the misconduct (read: possible criminal conduct) by Team Mueller and the FBI, but also on the legal insufficiency of the charge against General Flynn: False Statements to the U.S. Government, 18 USC 1001.

In that regard, legal tweeter Techno Fog flagged this fascinating exchange.  Note that the "Kelner" who responds to Judge Sullivan is one of Flynn's attorneys, Michael Kelner:

Despite the fact that Judge Emmet Sullivan totally shot himself in the foot with his absurd speculation regarding the possibility of General Michael Flynn being charged with treason, it does appear that he remains focused not only on the misconduct (read: possible criminal conduct) by Team Mueller and the FBI, but also on the legal insufficiency of the charge against General Flynn: False Statements to the U.S. Government, 18 USC 1001.

In that regard, legal tweeter Techno Fog flagged this fascinating exchange.  Note that the "Kelner" who responds to Judge Sullivan is one of Flynn's attorneys, Michael Kelner:

The important point Sullivan has in mind comes toward the end, when he says:

These are questions that you would be prepared to answer anyway, such as, you know, how the government's investigation was impeded?  What was the material impact of the criminality?  Things like that.

Obviously, Flynn's lawyer, Kelner, likes what he's hearing, is very much in favor of  "things like that," and he says so: 

I think we would find it very helpful, actually, and would welcome the opportunity.

The reason Kelner likes this train of thought is because what Sullivan is talking about actually comes close to the legal insufficiency of the entire case.  This doesn't mean that Flynn will be changing his plea, because his statements at this hearing made a future plea change difficult.  Nevertheless, Kelner likes this development because it works to get Sullivan back to the agreement of zero jail time, after Sullivan had suggested that he might ignore that agreement. 

But lots of things can change during the three months before the next status hearing, so let's take a quick look at the actual text of  "1001," as far as it's relevant to the Flynn case and to Sullivan's remarks:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully –

(2) makes any materially false, fictitious, or fraudulent statement or representation

The issue that Sullivan was posing to the attorneys is this: if what Flynn said to the FBI had no "material impact" on the government's investigation – did not "impede" the investigation in any way – then how should that affect "an eventual sentencing"?

Obviously, this has to do with the fact that the FBI agents showed up at Flynn's office to question him only about things they already knew.  That was the strategy agreed upon with their boss, Andrew McCabe, which they adhered to.  They questioned Flynn about matters they already knew – in fact, had a recording of – and if Flynn's account didn't jibe with what was on the recording, then they simply repeated Flynn's words.  This was, according to Mueller (p. 3), in order to "prompt a truthful response."

Actually, Mueller himself was making a false statement to the court when he wrote those words, because the agents weren't actually attempting to "prompt a truthful response" at all – they were trying to lock Flynn in to an inaccurate statement that could later be deemed a false statement and charged under 1001.  They were adhering to McCabe's instructions not to challenge Flynn's responses, but to induce him to say "yeah, uh-huh," when they repeated an inaccuracy.

Now, we can agree for the sake of the argument that it's only fair that the lack of any "material impact" of Flynn's words on any investigation should be taken into consideration for "an eventual sentencing."  However, more to the point of my previously expressed strong view of all this, I maintain that what we have seen here was not an investigation at all.  Yes, I know that DoJ officials presented three separate investigative theories to the House, that Mueller claimed that the FBI agents were engaged in "a national security investigation," and that the lawyers for Team Mueller – when challenged by Sullivan on exactly this point – suggested that the FBI had been looking at what might "potentially, potentially" have been a violation of the Logan Act.  But we're all adults, and any adult with a legal background knows that, as Michael Walther puts it, invoking the Logan Act is "the prosecutorial equivalent of announcing a snipe hunt."

My point is simply this: an investigation is an attempt to ascertain the truth.  Here, the FBI had a recording of a conversation.  The agents knew the truth when they walked into Flynn's office, and they sought no further truth beyond what they already knew.  For Mueller to suggest that they were attempting to ascertain the truth of what had been said in that conversation by questioning Flynn is utterly disingenuous – something we have sadly come to expect from the agencies and agents of our "Justice" Department lately.  An individual's recollection will never be more accurate than a recording.  Therefore, the only point in questioning Flynn was to try to frame him up for a supposed false statement and charge him under 1001, and I'm going to say a fair reading of the 302 leads to the same conclusion the interviewing agents initially expressed: Flynn wasn't lying.  He was coerced into a guilty plea by unscrupulous prosecutors.

Now, look at the text of 1001 again.  One of the first things it says, and crucially, is "in any matter within the jurisdiction of the executive."  Fine.  The FBI is part of the Executive Branch of the U.S. government, but the jurisdiction of this particular agency, the Federal Bureau of Investigation, does not extend to "any matter" – it extends only to matters for which Congress has given the FBI jurisdiction.  Typically, that means the investigation of some crime or matter concerning national security.  The inability of DoJ and Team Mueller to come up with a single consistent rationale strongly suggests that this was not an investigation of either a crime or a national security matter over which the FBI has jurisdiction.  Yes, the FBI has jurisdiction in national security matters, but only when a threat to that security is involved – as the Attorney General Guidelines clearly state in their introduction.  Nobody knew better than the FBI that Flynn's conversations with Russian Ambassador Sergey Kislyak posed no threat to national security, and that means that the FBI was acting outside its mandate when it interviewed Flynn.  It was setting up a false statement trap, not conducting an investigation, and that's what Judge Sullivan should be looking at.  I hope he'll come to that conclusion sometime during the next three months.

Judge Sullivan posed a challenge to the attorneys at the hearing.  I suggest that Judge Sullivan faces his own challenge that he may have to face on his own, if justice is to be done and the rights of U.S. citizens are to be protected against an abusive FBI that sees its mission as being a sort of roving federal truth patrol.

Mark Wauck is a retired FBI agent who blogs on philosophy, religion, and national security at meaning in history.  In his previous life he had over two decades of experience in counterintelligence matters.