Judge in Flynn case demands more documents before passing sentence

Judge Emmet G. Sullivan, who is due to sentence General Michael Flynn next Tuesday, has thrown a wild card on the table, raising the possibility that a miscarriage of justice may finally be called out and the guilty plea coerced by Team Mueller thrown out.

Thanks to the sentencing memorandum filed by counsel for General Michael Flynn, we now see that the FBI used deception to ensnare him in a perjury trap.  The Wall Street Journal summarizes the deception employed by or at the behest of James Comey and Peter Strzok, both now fired and revealed as fanatical Trump-haters:

The Flynn filing describes government documents concerning the Jan. 24, 2017 meeting with two FBI agents when Mr. Flynn supposedly lied.  It turns out the meeting was set up by then Deputy FBI Director Andrew McCabe, who personally called Mr. Flynn that day on other business – to discuss an FBI training session.  By Mr. McCabe's account, on that call he told Mr. Flynn he "felt that we needed to have two of our agents sit down" with him to talk about his Russia communications.

Mr. McCabe then urged Mr. Flynn to meet without a lawyer present.  "I explained that I thought the quickest way to get this done was to have a conversation between [Mr. Flynn] and the agents only.  I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice.  [Mr. Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants," wrote Mr. McCabe in a memo viewed by the Flynn defense team.

According to the FBI summary of the interview – known as a 302 – Mr. McCabe and FBI officials "decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed and they were concerned that giving the warnings might adversely affect the rapport."

We also know from then FBI Director James Comey that this was his idea.  This is "something I probably wouldn't have done or wouldn't have gotten away with in a more organized administration," Mr. Comey boasted on MSNBC this weekend.  "In the George W. Bush Administration or the Obama Administration, if the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel, there would be discussions and approvals and who would be there.  And I thought, it's early enough let's just send a couple guys over."

If the goal was to set a legal trap, it worked. 

Chuck Ross reports for the Daily Caller News Foundation on Judge Sullivan's startling order:

District Court Judge Emmet G. Sullivan on Wednesday ordered Flynn's lawyers to hand over two documents: a memo that then-FBI Deputy Director Andrew McCabe wrote after speaking with Flynn ahead his Jan. 24, 2017 interview with two FBI agents and the FBI summary of notes taken during that same interview.

That summary, known as an FD-302, was compiled on Aug. 22, 2017 by the two FBI agents who interviewed Flynn. It is unclear why the summary was put together seven months after the Flynn interview.

The delay in filing the Form 302 is totally in violation of the FBI's procedures.  Courtesy of Mark Wauck, a retired FBI agent (emphasis added):

Full text of "FBI Manual of Administrative Operations and Procedures (MAOP) 2007"

10-13.4 Initialing Original (FD-302) and Dating 

The original of an FD-302 is to be read and initialed where his/her name is typed by the reporting employee who will thus certify to the accuracy and completeness of the interview.  FD-302 is to be dated in upper right corner and is to bear the date of which the typing was completed; the date of dictation is to appear on FD-302 at the lower right corner where other data is set out.  If rough draft is made, the date of the rough draft shall be date of dictation.  Date of dictation must be within five working days of the action.

Judge Sullivan wants to see the documents provided to Flynn's counsel but also demands relevant documents from the FBI and special counsel:

Sullivan also ordered the special counsel to hand over any other memos or interview notes relevant to Flynn's interview.

The judge set a Friday deadline to turn over the documents.  He will decide on Flynn's sentence next Monday.

It is hard for me to imagine a legitimate reason for filing (or revising?) the form 302 months after it was due.  But I also can imagine no legitimate reason for the FBI not to record sound and video of all interviews instead of relying on the memory of its own agents.

The Washington Post notes that Judge Sullivan has in the past thrown out a conviction of a politician based on prosecutorial misbehavior.

The judge is well known for his concern about defendants receiving fair treatment from the government.  He also issues a standard warning to prosecutors to turn over any and all information to a defendant that could be helpful in their defense, including any evidence of government misconduct.

Sullivan famously threw out a jury's 2008 public corruption conviction of U.S. Sen. Ted Stevens after it was discovered that prosecutors and agents had hid [sic] evidence of key government witnesses giving conflicting accounts.

Judge Emmet G. Sullivan (official photo).

As I noted in 2015, there were profound political consequences of the prosecutorial misconduct in the Stevens case:

Obamacare would not have passed if Senator Ted Stevens had been re-elected in 2008.  But two Alaska federal prosecutors, assistant U.S. attorneys Joseph Bottini and James Goeke, charged him with accepting tens of thousands of dollars of illegal contributions, and obtained a felony conviction on October 27, 2008, just days before the election.  The only problem: they had illegally withheld exculpatory evidence from the defense, and the conviction was overturned.  But the damage had been done, and the longest-serving Republican in the Senate at the time had been turned out of office, replaced by Democrat Mark Begich, who provided the crucial 60th vote to pass Obamacare. 

The prosecutors in the Stevens case got off with a slap on the wrist: suspension but keeping their careers (and pensions).

[T]he two prosecutors would escape punishment for their history-changing misconduct.  Zoe Tillman of the National Law Journal reports:

Top U.S. Department of Justice officials violated policy in suspending two prosecutors involved in the botched case against the late Alaska Sen. Ted Stevens, a federal board ruled this month in declaring the discipline invalid.

Justice Department officials in 2012 concluded that assistant U.S. attorneys Joseph Bottini and James Goeke committed professional misconduct and ordered that they be suspended without pay – Bottini for 40 days and Goeke for 15.  The prosecutors, accused of withholding information from Stevens' defense lawyers, challenged the suspensions.

It is far from clear what actions Judge Sullivan might take.  General Flynn is unlikely to get sentenced to any imprisonment, as the sentencing memos from the prosecution and defense both requested no prison.  But General Flynn's good name has been marred with a guilty plea to a felony.  If Judge Sullivan was already going to hand out a sentence with no prison time, there may be something else on his mind.

I have my fingers crossed that Judge Sullivan will throw out the guilty plea and dismiss the case.  Depending on what he finds in the documents he will receive, a public rebuke of the special counsel and FBI would be in order.

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