[UPDATE: Please see ADDENDUM below.]
First General Flynn was set up by the Obama administration and the FBI. The FBI already knew from their investigations that he was not guilty of any wrongdoing regarding Russia, but they nevertheless set a trap to interrogate him and charge him with lying to the FBI.
Lying to the FBI is not perjury, not technically anyway; it’s a special crime. It’s also a strange crime in that not only does there not have to be a conviction on any primary crime about which the person is lying – and in Flynn’s case there was no such crime and what’s more the FBI knew there was no such crime – but in that it also relies on a record that depends wholly on the FBI agents’ integrity in reporting on what the person has told them. There is no way to independently corroborate the word of the interrogator, and no record other than the one he/she generates by writing down a 302 form about what happened.
In Flynn’s case, the outrages of the government were multiple and serious. Here are some: (1) not telling Flynn he was a target in the interview (2) telling him he didn’t need a lawyer (3) interrogating him about a phone call for which they already had a transcript, and not telling him about that transcript – which means they had no need to question him at all about the call and the entire thing was a trap to accuse him of lying if he differed in any way from the transcript (4) threatening to prosecute his son if he didn’t plead guilty (5) threatening him with the Logan Act, a law under which no one in 200 years has been prosecuted, and which was especially inappropriate for Flynn because he was an official of the incoming government and had a right to talk to foreign officials.
And that’s just the prosecution. There were also offenses by Flynn’s lawyers, and by Judge Sullivan, who suggested in court that Flynn was guilty of treason, and ended up having to apologize to Flynn. And now, of course, the fact that Sullivan has ignored the DOJ withdrawal from the case and stated request to drop it, and appears to have been intent on starting a new quasi-trial for perjury, which was never part of the original charges.
So Flynn has been the victim of multiple miscarriages of justice from multiple parties, really too numerous to mention in this short summary.
Why am I writing another post on this? A few more things came out earlier today in the comments section, and I wanted to expand on some remarks I made there.
First I want to reiterate this SCOTUS (Ginsburg) ruling: “[Judges] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” If the party prosecuting a criminal case says “no” to the prosecution and/or sentencing, the judge is supposed to comply. In this case, as we know, Sullivan is not doing so.
Perjury is a legal term that is ordinarily about a lie concerning a statement of fact made under oath. I have never – literally never – heard of a person being charged with perjury for changing a plea. And yet pleas are changed every day. In this case, the plea was originally made because of prosecutor malfeasance and coercion and threats. The original prosecutors and/or investigators should be punished for that, not the defendant.
A plea is usually not subject to a perjury charge. Ordinarily, a plea is entered while the defendant is not under oath, so there is usually no question of charging him/her with perjury. However, in the Flynn case – in which the judge is clearly prejudiced against Flynn, as his bizarre rant about “treason” proved – the judge did something in addition that is apparently odd. That link I just gave is to an author who rails against “right-wing talking points” and appears to approve of Sullivan. But he also made the following telling statement about what happened back then (a year and a half ago, at the same hearing where Judge Sullivan was talking about Flynn having possibly committed treason) [emphasis mine]:
[Judge] Sullivan tore into Flynn and his lawyers. He almost bizarrely put Flynn under oath before demanding that he admit his guilt and deny all the right-wing talking points which have recently been repeated by the president himself. He forced Flynn to admit that he knew he was wrong to lie to the FBI and that there had been no misconduct in how his interviews were conducted. He acknowledged that any possible wrongdoing then-Deputy FBI director Andrew McCabe and counterintelligence official Peter Strzok may have committed in other areas had no bearing on his responsibility to be truthful to federal agents.
Judge Sullivan openly questioned whether Flynn could have been charged with treason for operating as an undeclared agent of a foreign power while serving as National Security Advisor, suggested that Flynn had dishonored the flag that was displayed in the courtroom, and said “arguably you sold your country out.”
Note that even this writer – who hates Flynn and the right and agrees with Sullivan – appears to think that what the judge did in making Flynn admit his guilt under oath (during a sentencing hearing, if I’m not mistaken) was bizarre. Was it? Why did Sullivan do that? Was it another perjury trap? Was it the judge’s attempt to make it impossible for Flynn to withdraw that plea without being subject to a possible perjury charge? Did it violate a rule against self-incrimination? Was the judge acting as a prosecutor here? Did Flynn’s lawyers object?
And how unusual was this behavior on the part of Judge Sullivan? I have done a lot of searching for further discussion about the “swearing under oath” aspect of that day, but so far (and frustratingly) I haven’t been able to find any additional discussion of this supposedly “bizarre” behavior from Sullivan. At the time (December of 2018), MSM and blog coverage concentrated on Sullivan’s suggestion that Flynn was guilty of treason, a comment that was way out of line and showed not only prejudice but emotional instability (and ignorance of the law and the facts of the case) from the bench. But at present, I am more concerned with the forcing of Flynn to reaffirm his guilty plea under oath, and I have no idea how usual or unusual this is, although I am under the impression it may be highly unusual.
Again, I appeal to lawyers out there who might be more conversant with this than I am. Do you have any insight to add on the matter? I’m not a trial lawyer and never was, and any specific information I might have on the subject of the usual trial practice in this regard is long outdated, as well.
Here’s what Flynn has said more recently (January, 2020) on the matter of his December 2018 reaffirmation of guilt (under oath) in Sullivan’s court:
Flynn in his filing Wednesday said it was a mistake to confirm his guilty plea before Sullivan in his first sentencing hearing in 2018.
“Regretfully, I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty,” Flynn wrote.
Not only were Flynn’s original prosecutors and investigators out to frame him, but his defense attorneys were compromised as well, and the judge was vengeful and may have been setting a trap too. The situation Flynn has been put in is outrageous.
[NOTE: See also this for more background.]
[ADDENDUM: I think I’ve got it mostly sorted out now.
From some of the answers I’ve gotten in the comments, I don’t think Sullivan’s putting Flynn under oath in his sentencing hearing was unusual or “bizarre,” and don’t know why the author of that article at Washington Monthly would have characterized it that way, although I certainly think the judge’s outburst about “treason” was bizarre.
But the reason Sullivan can’t get Flynn for perjury for pleading guilty can be found here. I suggest you read the whole thing, but the gist of it is that Sullivan can’t charge anyone with perjury, only contempt of court. In this case, the confusion came from the fact that Sullivan has said he is considering charging Flynn with criminal contempt for perjury. That is not the same thing as perjury, and perjury is not a grounds for criminal contempt. Here’s the important part:
The controlling legal authority from the Supreme Court holds that contempt power cannot be used to punish people for making statements, even under oath, that the judge deems false…
…[A]ny actual prosecution of Flynn under federal statutes for perjury would have to be brought by the Department of Justice…
The federal criminal code specifically recognizes a court’s contempt authority. Section 401 of the federal criminal code provides that a federal court can punish contempt of its authority, consisting of misbehavior in its presence that obstructs the administration of justice…
The Supreme Court held that to convict the witness of contempt for alleged perjury, “there must be added to the essential elements of perjury … the further element of obstruction to the court in the performance of its duty.” …
The D.C. Circuit, which sits over Sullivan, has reinforced the Hudgings limitation and emphasized that “actual, not theoretical, obstruction is the test, and that any claimed obstruction must be proven precisely.”…
Flynn’s statements in connection with his plea did not obstruct the court in the performance of its duty. Thus, they simply cannot constitute contempt of court under long-standing precedent. Sullivan should therefore not embark on any contempt proceeding. Doing so would be a misuse of his contempt power.
But hey, why shouldn’t Sullivan join the club? Power has been misused against Flynn from the start, over and over again.]
