Without Plea, Allegation Against Flynn Rests on Unseen Evidence

May 4, 2020 Updated: May 6, 2020

News Analysis

Retired Lt. Gen. Michael Flynn’s assertion of innocence highlights the fact that the public, his lawyers, and even his judge have yet to see the foundational evidence of the crime he’s been accused of.

Flynn, former head of the Defense Intelligence Agency (DIA) and former national security adviser to President Donald Trump, pleaded guilty on Dec. 1, 2017, to one count of lying to FBI agents during a Jan. 24, 2017, interview.

The charge has been that he didn’t disclose to the FBI agents two requests he made of Sergei Kislyak, then-Russian Ambassador to the United States, in December 2016. One request was for Russia to delay a vote in the United Nations on Israeli settlements. The other was for Russia to only respond reciprocally to new sanctions imposed in late December 2016 by President Barack Obama.

The basis for the allegation rests on the assumption that we know exactly what Flynn told Kislyak.

Yet, even after more than three years, the scant publicly available evidence on this account has in fact weakened.

After the 2016 election, Flynn, as part of Trump’s transition team, was tasked with laying the groundwork for the incoming administration’s relationships with foreign governments.

As such, he said, he talked over the phone to officials of possibly dozens of countries, including to Kislyak.

What did Flynn specifically say to him? Ultimately, we don’t know.

It has been widely reported that the U.S. intelligence and national security apparatus, including the FBI, has recordings and transcripts of the calls due to routine spying on Russian diplomats.

Yet not a single sentence of the transcripts has been released publicly. Flynn’s defense has been fighting for months to obtain them, to no avail.

“No attorney for General Flynn has heard the recordings of the calls or seen the transcript,” Flynn’s lawyer, Sidney Powell, told The Epoch Times.

Not even the court has had the privilege of a peek.

District Judge Emmet Sullivan, who presides over Flynn’s case, noted in December (pdf) that “the existence or nonexistence” of the transcripts and recordings “have neither been confirmed nor denied by the government.”

With direct evidence missing, the only evidence that Flynn actually lied comes from Flynn’s own statement of offense, a document attached to his plea.

However, that document has been shown to contain a number of inaccuracies. Rather than a faithful and full account of what occurred, it’s a product of negotiations made in 2017 between prosecutors of then-special counsel Robert Mueller and Flynn’s former lawyers, whom Flynn in recent months accused of ineffective counsel.

Flynn is now openly saying the statement of offense is false and was signed under false representation and undue pressure. He has since formally asked Sullivan to allow him to withdraw his plea.

“When FBI agents came to the White House on January 24, 2017, I did not lie to them. I believed I was honest with them to the best of my recollection at the time,” Flynn said in a Jan. 29 sworn declaration to court (pdf).

“I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak, nor do I remember if we discussed the details of a UN vote on Israel.”

He said he acknowledged to the agents “that the topic of sanctions could have been raised.”

But he also said the calls “are still events of which I do not have a clear memory.”

If Sullivan allows Flynn to withdraw his plea and the case goes to trial, the prosecutors may be forced to finally disclose whether their case has a leg to stand on.

They would have to prove, beyond reasonable doubt, that not only did Flynn’s recollection during the FBI interview materially differ from the actual calls, but also that Flynn withheld the truth intentionally.

That may be a problem, since one of the two agents who interviewed Flynn, former FBI agent Peter Strzok, told one of Mueller’s prosecutors (pdf) that he and the other agent “both had the impression at the time that Flynn was not lying or did not think he was lying.”

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