Case against Flynn nears end with no-jail rec­om­men­da­tion

Porterville Recorder - - OPINION -

Michael Flynn has been wait­ing for more than a year to be sen­tenced. The re­tired three-star Army gen­eral, who spent 24 days as the Trump White House na­tional se­cu­rity ad­viser, pleaded guilty on Dec. 1, 2017, to ly­ing to the FBI in the Trump-rus­sia in­ves­ti­ga­tion. He agreed to co­op­er­ate with spe­cial coun­sel Robert Mueller.

Flynn’s sen­tenc­ing, which has been de­layed a num­ber of times for rea­sons that have never been dis­closed, is sched­uled to fi­nally take place on Dec. 18. Late Tues­day, Mueller filed what is called a sen­tenc­ing re­port. Cit­ing Flynn’s “sub­stan­tial as­sis­tance” to the in­ves­ti­ga­tion, Mueller rec­om­mended “a sen­tence at the low end of the guide­line range -- in­clud­ing a sen­tence that does not im­pose a pe­riod of in­car­cer­a­tion.”

It’s no sur­prise Flynn might be spared jail time. So far, two fig­ures in the Trump-rus­sia mat­ter have been sen­tenced for ly­ing to in­ves­ti­ga­tors, the same of­fense as Flynn. Alex van der Zwaan, a bit player con­nected to Paul Manafort, was sen­tenced to 30 days in jail. Ge­orge Pa­padopou­los, a short-time Trump cam­paign for­eign pol­icy ad­viser, was sen­tenced to 14 days -- and that was after Mueller com­plained that Pa­padopou­los had not been co­op­er­a­tive when he was pur­port­edly as­sist­ing the in­ves­ti­ga­tion.

Flynn, on the other hand, is a re­tired gen­eral with a long record of ser­vice to the United States, which Mueller took into con­sid­er­a­tion in rec­om­mend­ing no jail time. “The de­fen­dant’s record of mil­i­tary and pub­lic ser­vice dis­tin­guish him from ev­ery other per­son who has been charged as part of the (spe­cial coun­sel’s) in­ves­ti­ga­tion,” Mueller wrote.

What the sen­tenc­ing rec­om­men­da­tion did not ad­dress was the sketchy be­gin­nings of the Flynn in­ves­ti­ga­tion. It started with the Obama ad­min­is­tra­tion’s un­hap­pi­ness that Flynn, dur­ing the tran­si­tion as the in­com­ing na­tional se­cu­rity ad­viser, had phone con­ver­sa­tions with Rus­sia’s then-am­bas­sador to the U.S., Sergey Kislyak. Be­cause Kislyak was un­der Amer­i­can surveil­lance, U.S. in­tel­li­gence and law en­force­ment agen­cies had record­ings and tran­scripts of the calls, in which Flynn and Kislyak dis­cussed the sanc­tions Obama had just im­posed on Rus­sia in re­tal­i­a­tion for its 2016 elec­tion in­ter­fer­ence.

There was noth­ing wrong with an in­com­ing na­tional se­cu­rity ad­viser talk­ing to a for­eign am­bas­sador dur­ing a tran­si­tion. There was noth­ing wrong with dis­cussing the sanc­tions. But some of­fi­cials in the Obama Jus­tice Depart­ment de­cided that Flynn might have vi­o­lated the Lo­gan Act, a 218-year-old law un­der which no one has ever been pros­e­cuted, that pro­hibits pri­vate cit­i­zens from act­ing on be­half of the United States in dis­putes with for­eign gov­ern­ments.

The Obama of­fi­cials also said they were con­cerned by re­ports that Flynn, in a con­ver­sa­tion with Vice Pres­i­dent Mike Pence, had de­nied dis­cussing sanc­tions. This, the of­fi­cials felt, might some­how ex­pose Flynn to Rus­sian black­mail.

So Obama ap­pointees atop the Jus­tice Depart­ment sent FBI agents to the White House to in­ter­view Flynn, who was ul­ti­mately charged with ly­ing in that in­ter­view.

The FBI did not orig­i­nally think Flynn lied. In March 2017, then-fbi di­rec­tor James Comey told the House In­tel­li­gence Com­mit­tee that the two FBI agents who ques­tioned Flynn “did not de­tect any de­cep­tion” dur­ing the in­ter­view and “saw noth­ing that in­di­cated to them that (Flynn) knew he was ly­ing to them,” ac­cord­ing to the com­mit­tee’s re­port on the in­ves­ti­ga­tion into the Trump-rus­sia af­fair. Comey said es­sen­tially the same thing to the Se­nate Ju­di­ciary Com­mit­tee and, in the words of chair­man Charles Grass­ley, “led us to be­lieve ... that the Jus­tice Depart­ment was un­likely to pros­e­cute (Flynn) for false state­ments made in the in­ter­view.”

FBI num­ber two An­drew Mccabe told the House the same thing. “The two peo­ple who in­ter­viewed (Flynn) didn’t think he was ly­ing, (which) was not (a) great be­gin­ning of a false state­ment case,” Mccabe told the In­tel­li­gence Com­mit­tee.

Only later, after Comey was fired and Mueller be­gan his in­ves­ti­ga­tion, was Flynn ac­cused of ly­ing. He ul­ti­mately pleaded guilty.

Mueller’s sen­tenc­ing rec­om­men­da­tion specif­i­cally men­tions the sus­pi­cion that Flynn vi­o­lated the Lo­gan Act. It says noth­ing about the Obama Jus­tice Depart­ment’s black­mail tale.

Hill Repub­li­cans have been sus­pi­cious about the Flynn case for quite a while. But they have not been able to get their hands on some key doc­u­ments and tes­ti­mony that might tell them what hap­pened.

House in­ves­ti­ga­tors have a chance to learn more this week when, on Fri­day, Comey ap­pears for a be­hind-closed-doors in­ter­view with mem­bers of the Ju­di­ciary and Over­sight com­mit­tees.

Law­mak­ers have promised to re­lease the tran­script of the in­ter­view within a day or two of its com­ple­tion. That might pos­si­bly give the pub­lic a more com­plete pic­ture of the Flynn case. In­ves­ti­ga­tors could ask Comey specif­i­cally how the agents who in­ter­viewed Flynn char­ac­ter­ized his an­swers and be­hav­ior. They could ask whether Comey be­lieved Flynn would be in­dicted. They could ask what ev­i­dence Comey saw to sug­gest that Flynn did, in fact, lie. And they could ask if Comey ever saw the re­ports, the so-called 302s, that the agents wrote de­scrib­ing the in­ter­view.

Congress has long ago pressed the Jus­tice Depart­ment to hand over the 302s and other doc­u­ments. So far, the an­swer has been no. But soon the Flynn case will be en­tirely over. Per­haps then the pub­lic will fi­nally learn what re­ally went on in United States of Amer­ica v. Michael T. Flynn. By­ron York is chief po­lit­i­cal cor­re­spon­dent for The Wash­ing­ton Ex­am­iner.

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