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Post More on the Obama-Trump Transition, the "Ambush" of NSA Flynn
Created by John Eipper on 05/22/20 4:04 AM

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More on the Obama-Trump Transition, the "Ambush" of NSA Flynn (George Aucoin, France, 05/22/20 4:04 am)

A couple of quick points to add to the series of unusual events between the 2016 Presidential election and its culmination in the Jan 20, 2017 inauguration timeframe.

Most importantly was the (unknown at the time) electronic surveillance being performed on the newly elected President, his family members and his transition staff by the US Government. This was revealed by the newly elected President on March 4th, 2017 to the public with the words, "Just learned that Obama had my wires tapped in Trump Tower before the victory." Recently unclassified "unmasking" reports confirm that this indeed occurred before the election, during the transition period and even after the newly elected President was inaugurated.

Second was the request by the outgoing President for an Intelligence Community Assessment (ICA)-focusing on Russian election interference-in early Dec 2016 to be completed in 30 days. Former Director of Intelligence James Clapper revealed this in a later television interview. A Russia! Russia! "explanation" for a series of past and future outgoing administration events was arguably born here.

Now on to our editor's request. I opined that Incoming National Security Advisor Michael Flynn was "ensnared" when I should have said "ambushed."

Former Director of the FBI James Comey acknowledged sending two Special Agents to covertly interview Flynn on Jan 24th, 2017 by circumventing National Security Protocols. Comey admitted Flynn was not accompanied by his own legal Counsel. Later unclassified documents illustrate Flynn was not read the required Miranda Rights. All of this occurred after the FBI had listened to the telephone conversation of December 29, 2016 between the incoming National Security Advisor and the Russian Ambassador and found no reason to keep any investigation of Flynn open.

But it all changed in an Oval Office meeting of Jan 5, 2017 when Dir. Comey brought up the Logan Act as a potential means to charge Flynn with a crime, recently unclassified documents show. No one has ever been convicted under the Logan Act, and the incoming National Security Adviser during a transition phase would be immunized from such a charge in any case, depending on the subject matter of the conversation. But, it was a toehold.

LtGen Flynn did plead guilty to lying to FBI investigators at the Jan 24th covert "interview." He was advised to do so by Attorneys Stephan Anthony and Robert Kelner of the law firm Covington and Burling LLP without ever being shown the exculpatory evidence of the Special Agents handwritten notes which detected no "tells" of lying. Flynn was also told that his son was going to be charged with federal crimes unless Flynn entered a plea of guilty to a federal charge. Under duress, the General fell on his sword.

Flynn fired Attorneys Anthony and Kelner and their law firm and sued them for ineffective assistance of counsel. Flynn's guilty plea was "fruit of the poisonous tree," the product of entrapment, circumvented protocol and Black Letter legal requirements (Miranda warning) on Jan 24th by the FBI under the direction of its most senior leadership. In sum, "ensnared" was not descriptive enough.

But, of course, it's not over yet...

JE comments:  Most of us aren't well versed on the Logan Act (I wasn't):  It goes way back to 1799, and criminalizes negotiation by unauthorized US citizens with foreign governments in dispute with the US.

George, could you give us more information on the FBI threat to charge Flynn's son with a federal crime?  Once again, smoke and fire.  If the FBI threatened to charge my (step)son with a crime, I wouldn't worry very much.  Yet the question remains whether it is legal to threaten a family member with prosecution in order to extract a confession.

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  • More on NSA Flynn's Guilty Plea (George Aucoin, France 05/24/20 4:23 AM)
    Following up on editor John Eipper's question (May 22nd) regarding the legality of the Feds threatening unrelated felony charges with regard to another person in order to obtain a guilty plea in the first instance, unfortunately, it's rather common. However, it's risky in a high-profile matter like trying to obtain a guilty plea from the National Security Advisor to the President. Better lawyers make a difference.

    It's risky because in Federal Court all aspects of a plea deal arrived at with the Government are required to be briefed to the Court in advance of the Court's acceptance of a guilty plea. This "side bar" agreement with Flynn's original lawyers was not briefed to District Court Judge Emmet Sullivan. What the lead prosecutor for the DOJ did (Brandon Van Grack) In Dec of 2017 was to threaten the National Security Advisor that he would charge his son (Mike Jr.) with failing to register with the DOJ as a Foreign Agent (FARA violation) when he worked for his father's Flynn Intel Group, a private company, if LtGeneral Flynn did not admit in open court to lying to FBI agents during the stealth interview of Jan 24, 2017, just days after the inauguration of a new president. Coercion in this manner serves to nullify a plea of "Guilty" to a federal crime because it's not arrived at by "Free Will"--e.g. coercion=duress.

    All of the above though is just one frame of a general thesis that peaceful transition of power in the USA was seriously undermined In 2016-2017. To the WAIS readership, what does this herald for the future of elective transitions?

    If you have never read this petit histoire before from the media you follow, have you asked yourself why not?

    JE comments:  Better lawyers do make the difference!  If I follow George Aucoin (JD)'s explanation above, wouldn't it always be in a defendant's interest to plead guilty if s/he is presented with a "confess or we'll charge your child/spouse" ultimatum?  Then you can have the confession thrown out...or even better, dismissed.

    Of course, it doesn't hurt to have the Attorney General in your corner.  George, when the dust settles, do you believe Pres. Trump will grant Flynn a full pardon?

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    • Will Trump Pardon Michael Flynn? No Need (George Aucoin, France 05/26/20 6:05 AM)
      After outlining the problems with the coerced guilty plea of former National Security Advisor to the President Mike Flynn, our editor John Eipper wonders whether the President will ultimately bestow a "pardon," absolving Flynn of the consequences of federal criminality.

      I don't believe that bridge will have to be crossed. Here's why. The Department of Justice removed lead prosecutor Brandon Van Grack from Flynn's criminal matter and dropped its charges against Flynn of lying to a federal agent. Bewilderingly, DC District Court Judge Emmet Sullivan then allowed "interested third parties" to comment on the DOJ decision. This sparked a Writ of Mandamus to a three-judge tribunal of the Court of Appeals by Flynn motioning to dismiss the case as required by law and precedent or to remove Judge Sullivan and reassign the case. The Appeals Court then ordered Sullivan to explain himself within 10 days. Not to be outdone, Judge Sullivan countered by hiring a well-known lawyer to represent Sullivan's required response before the Appeals Court!

      Folks...it doesn't get any crazier. But it looks like playing for time to me.

      My money is on the case being dismissed because the prosecutor, in this case the DOJ, no longer believes there is an underlying crime with which to prosecute LtGen Flynn.

      JE comments:  Everyone has the right to due process, but aren't we forgetting the original question:  Did Flynn lie to the FBI, or did he not?  It appears that this matter will never get its day in court.  (Note today's edition of the WAIS Effect:  wagering!)

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