CAFE Insider 5/5: The Return of Flynn & McGahn

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Hey folks we're entering a new phase of pandemic response. Some dozen states begin to reopen six weeks after the country came to a standstill as protests and debate rages over stay at home orders and listening other restrictions. We had some big news last week. Documents related to the FBI investigation of former trump national security adviser. Michael Flynn were unsealed raising new questions about the propriety and fairness of FBI practices and the DC Circuit Court of appeals oral arguments. In a case involving a subpoena perform White House counsel Don mcgann. Who's been blocked from testifying before the house? Judiciary Committee was Michael. Flynn and trapped as his defenders claim. And what are the implications of the mcgann litigation for the future of Congressional oversight? I talk about all this and more with an milligram. Cafe insider podcast each week. We breakdown politically charged. Legal issues making the headlines. Today we're sharing clip from this week's episode. You can listen to our full conversation and access all other. Kathy insider content with a free two week trial of the membership head to cafe dot com slash insider to join that's cafe dot com slash insider and college students with a valid. Edu Email can get a special rate at cafe dot com slash student. How are you in a pre happy? Cinco de Mayo. Happy Cinco de Mayo and happy May the fourth be with you for yesterday. You know what my son's School. It's a big deal there last year. It's a it's a big deal. Last year the annual school gala. This was before my son had even started kindergarten and so all the parents went and we thought it was like you know you gotta go. Maybe it's going to be a little fancy we walk in everyone is in jeans and star. Wars T. shirts or in costumes is amazing. That's pretty wonderful before we get to the news Can I make a public service announcement? Yeah of course always so the other podcast that I do on what you've been guest. Many many times stay tuned with preet is up for an award. A Webbie's People's Voice Award for best politics in news podcast. We are currently and in second place. Well I thank thank you. I know that the nomination that you'd like to be in first place. I know I'm just happy as they say. I'm just happy to be nominated. I feel that way. It's it's an amazing accomplishment. Congratulations to you and the whole team a cafe so so I do have a request of our listeners. And that is when you have a moment go to vote dot Webby awards dot com. You can find that voting page by just typing pre or stay tuned in the search bar. That's will you send me one of those stickers that says I voted voted? I'm with you? Vote Dot Webby Awards Dot Com. And it's good practice for remote voting for all right. Congratulations again. It's wonderful. Thank you so two big things going on. Michael Flynn former national security advisor. To president trump. Briefly is back in the news. Why is that yes? He's back. There have been a number of documents that have been released. And we'll talk a little bit about how they came out with their internal. Fbi documents that relate to this discussion that they had about how to approach. Michael Flynn when they were first going to interview him and so this has brought it back for his lawyer to basically say oh no Michael. Flynn was entrapped. The government is terrible the FBI is terrible and the president of course has said the same thing we want the ability to withdraw our plea. We want the case dismissed and so all of this has happened. Those documents were released last week. And so it's really brought the Flynn conversation back to the beginning of Flynn want out of his plea deal so this case has been pending for very long time the conduct in question for which he was charged goes back to the first week of the trump administration and an interview he gave to the FBI on January. Twenty four th of two thousand seventeen. Now we're more than three years on and we still have this pending case it's worth maybe reminding folks and we had to remind ourselves of some of the underlying facts of the case right. So you'll recall that Michael. Flynn used to be in the military and left under Barack Obama and then became a very outspoken. Spokesperson and campaigner for Donald Trump went to some rallies notably. I think presided over a chant of locker up in reference to the Democratic nominee. Hillary Clinton we do not need a reckless president who believes she is above the law. Mock as right yeah. That's right her up. I think there are reports that various people including Chris Christie suggested that he not be appointed to a high position in the trump administration and yet he was and what the charges surround just remind folks are essentially three sets of lies that he told to an FBI agent on January twenty. Four th two thousand seventeen to give some context to this during the transition period. When Barack Obama was still the president of the United States there was an active investigation of various issues relating to Russia and with respect to the Russian interference in the election the Obama administration at some point in December of two thousand sixteen imposed significant sanctions on Russia now in almost every circumstance when the United States imposes sanctions on a country like Russia. There is almost immediate retaliation. That's happened before. That's the reason why I'm banned from going to Russia. It was retaliation for sanctions that we put on various Russians. Russians did the same to various Americans including me and some other people from the and the judge in a particular case it turns out that Michael Flynn among other things had a direct conversation with the Russian ambassador to the US Gay Kislyak in which he told Kislyak not to retaliate against the United States and said some other things he also told Russia apparently during that time period to vote against a particular UN resolution relating to Israel so that's the backdrop then fast forward to January twenty four th of twenty seven to just interrupt for a second so folks can remember that the American intelligence agencies were up on the phones of the Russian ambassador who is believed to have also been an intelligence asset for the Russian government Sergei Kislyak and so they had access to that phone. Those phone calls every time that Michael Flynn called. Those calls were being overheard by American intelligence officers. And this will come into play later. There's also evidence that was coming into the possession of the intelligence authorities and law enforcement authorities. The Michael Flynn was doing substantial work at the behest of the government of Turkey including writing an op-ed about various things something that the files referred to as a Turkey project. And so you have this interesting scenario with someone who's about to become the national security advisor to the president of the United States kind of behind people's backs and in a way that's undermining to the still in place administration having private conversations with the Russian ambassador about what should or should not happen kind of conducting his own foreign policy. There's also an old American law which you and I talked about when when this was all unfolding in. Flynn was being charged and pleading guilty. There's something called the Logan. Act which prohibits anyone from acting on behalf of the US government that's not the US government and so at this point in time. In December of twenty. Sixteen Barack Obama was president. President trump had not been sworn in yet to office that was later in January and so there was some question and that has not been charged for decades. I think over fifty years it's not frequently used statute but just so people understand on its face. This is specifically prohibited by Law. You can't be the incoming administration undercut the Carter Administration. You can't have two governments at once and it's not. It's not the way we operate. And so is this significant government issue that Flynn was making those calls and basically sort of back dealing with the Russians so then fast forward to January twenty fourth and we'll get into what some of the discussions were that reflected in these notes about whether or not Michael Flynn should be approached whether or not he should be warned that lying a crime whether or not he should have been allowed to have a lawyer and all of that. Because that's part of what? The current controversy is about but just to put this in perspective. You have you have an FBI agent and what makes it more complicated is the FBI agent. Is Someone in Peter. Struck who as we all know later was engaging in inappropriate and unfortunate text messages about his feelings about Donald trump with an F. B. I. Lawyer NAMED LISA PAGE. Who is one of the people which also complicates this? At least optically was one of the lawyers who is providing guidance on what the warnings should be to. Michael Flynn and what the nature of the interview should be etc etc. So it's kind of a complicated little web but the basics are that Michael Flynn even though he's fisted person even though he had served in the Defense Intelligence Agency even though he has a lot of experience in intelligence collection and law enforcement presumably an even though he had to have assumed as you pointed out and that his conversations with Kislyak might have been intercepted and might be known to the community officials in FBI officials when given the opportunity to speak about whether or not he had said these things to Kislyak chose to lie about it and chose to lie about whether or not he told Russians to against the UN resolution. And we're GONNA come back to this again and again but I think it's important to say at the outset because if thing is ultimately desposited of all this controversy he basically had three choices when he's interviewed by the FBI and we can have a discussion about whether or not it was heavy handed or whether or not. He was admonished properly. And all sorts of other things but the bottom line. Is You have a sophisticated person. Who understands how life works who asked direct and specific concrete questions about his conversations with Russians? He had three choices. Tell the truth lie or shut up and he chose to lie and by the way nothing all this documentation controversy and motion practice. That I've seen and maybe I've missed it. Does he. In any way make the case that his statements to the FBI agent were in fact true. It's all this other sort of argument about fair treatment and being set up and they're not being a proper case to begin with which may or may not be arguable but he does not dispute. His stuff was not true right and also just remember that he publicly apologized as well ed. He also stood in court and basically said in front of a judge. Yes I lied what he pled guilty. And so it's really important understand. He's not walking back that he lied to the FBI. He raised his right hand swore under oath that he had lied and he then also went out and publicly apologized and said you know it was wrong. And I'm sorry and I'm working to make amends. And so all of that is the backdrop of he's never denied the actual crime. He's arguing that he was tricked by the FBI that he was entrapped. That conduct toward him basically compelled him to tell that lie a couple of other facts to remember he was eventually fired by Donald Trump and what was the basis for his being fired. Not only did a lot of the FBI. He lied to the vice president. Mike Pence went on Sunday. Talk shows right and this is based on Michael Flynn. I was disappointed to learn that the facts that have been conveyed to me by General. Flynn were inaccurate. So the trump administration itself understood that he lied and fired him. Because of those lies. Yes and you know at this point. The Washington Post was writing news articles about it flint folk to pence assured that it hadn't happened that he hadn't had these conversations and then pence went out based on Flynn's representations and told the American public. This never happened and so it's really important to remember that that that's how this all went down. So what's happened since January? Twenty four th interview and his firing by the president of the United States. He was charged as we mentioned with multiple counts of making false statements. He pled guilty in open court which means that he voluntarily admitted the facts. He put out a statement of apology. Essentially admitting the facts he had certain lawyers sophisticated lawyers Covington burling representing him. There was a sentencing schedule for more than once. There's been a sentencing scheduled and at one point the government was saying that probation would be appropriate because of his long service and because of his cooperation with the government then at some point later oddly when the sentencing was adjourned and rescheduled. The government took the position that some prison sentence of up to six months would be appropriate and then for recently after bill bar maybe got involved. The government changed sentencing recommendation. Again back to probation. So you have these twists and turns. He's changed lawyers. He's got a new lawyer. Who's arguing that the first lawyers didn't do a good job and they have a conflict of interest so there's been a lot of fighting as opposed to how Michael Flynn dealt with the case in the beginning with contrition and an apology and guilty plea and so now. There have been some documents that have been disclosed and we can maybe describe how that happened. That Flynn's new lawyers argue show. He was entrapped he was set up. There was exculpatory material. Provided that they want use to show that he's innocent that the government acted outrageously and that he should be able to withdraw his guilty plea and in fact have his case dismissed. So how do we? How do we get to this point? What is happening here is beyond unusual in my view. And so just put this all against the backdrop of the of the United States. Donald trump has been arguing for executive privilege for the past three years right every time someone wants piece of information from here his administration. He will argue. It's executive privilege basically saying I'm the chief executive I need to be able to have conversations behind closed doors that are private and I have to be able to debate things. Yes or no and nobody should get access to that. Now flipped to what Bill Bar has. Basically done is he has released and we'll talk about the mechanics of this but he has released the contents of notes and emails of Internal F. B. I. Conversations about how to approach the Flynn investigation and this is incredibly unusual in my experience. I was trying to think of another time that I'd seen something like this happen. It just doesn't happen and again. I really want to stress that this is intentional. Framing I think by the president and by bar to basically be able to set up to be pardoned by the president or for the CASE TO BE DISMISSED BY BILL. Bill Bar to say we're not going to go forward. So what bill bar does is he. Does this thing. You mentioned the Connecticut. Us Attorney recently. John Durham was appointed to look at the Russia. Investigation and Carter pages the initial FIS award of Carter page. What is something similar here? On Flynn's case he asked a sitting. Us Attorney to look into the flint matter and as a result of that that sitting us attorney basically pulled these internal F. B. I. Documents. They are not documents that would normally be disclosed in my experience because again they go to process and deliberation they don't go. They're not records of a witness statement. There they don't fall under the criminal procedure rules of what has to be disclosed during the prosecution of a case so they really are. Bow Giving an internal law enforcement agency the ability to have this argument. This conversation you know. Should WE GIVE FLYNN? Should we tell him that if he lies? It's a crime. Do we need to legally tell him? And what's important will get to the substance of those arguments in a minute. But what is really really important for people to understand that bar appoints the US attorney the US attorney then gets access to these documents and he gives them to the defense lawyer Sydney POWs so that Powell can now walk in and say my client was entrapped. This was a setup by the government. I don't think there's anything about that argument. That's true and as you said. A plane had three choices and he chose to lie and we can again break that down. But I think it's really important for people to understand the framing that we are here because Bill Bar has released internal documents. That in my experience are not released in law enforcement investigations. And he's done it in my view intentionally to undercut the Flynn prosecution and again just to go back to executive privilege like the exact argument. The president's making that he needs and you and I have argued there exceptions to executive privilege. Of course there are exceptions to when internal documents should be turned over. I just want to point out the hypocrisy that the same administration that has basically said no one gets to see anything from us is the same administration that is pushing out documents that are never ever disclosed in cases and that go directly to the heart of the exact kind of debate the F. B. I. Should be having when they're approaching an interview. They're trying to figure out. How should we do it? What's the best way to do it? What's the fairest way what's legal? What's not so some of the things that are released include batch of documents some type some handwritten. There's a back and forth. I think that you refer to between Lisa page agents of the FBI. About the rule requiring warning the witness in this case. Michael Flynn that lying to an FBI. Agent is a crime by the way everyone in America now probably knows that from the cases that have flowed from the Russia investigation is a statute title eighteen United States Code. One thousand one that everybody now is familiar with this is the back and forth about whether or not you're supposed to warn somebody about lying to the FBI in a material way and then there's this note that's gotten a lot of attention. It's unclear WHO's handwriting. It is reasonably speculate. That's Bill pre-snap. Who is the head of counterintelligence at the FBI at the time who writes what's our goal referring to the approach an interview of witness truth slash admission or to get him to lie so we can prosecute him or get him fired and those notes that notation standing alone? His caused a lot of people to claim. This is a setup. This is inappropriate. I saw Kailua mcenaney from the podium in the briefing room at the White House. Basically say there was an unfair targets on the back of general. Michael Flynn on concern every American anytime. There's a partisan pursuit of individual and that's certainly at least. Those questions are raised with regard to general. Michael Flynn honorable man. Who served his country? Is this a crazy thing to be thinking about? An prior to the interview of a witness. Who you believe is engaged in misconduct. One of the things I think that is worth spending a little time on is that We've both been in these rooms where you have very serious conversations about. Where's the investigation going? How do you approach a witness? And what's the best way to do it? And it's worth reminding ourselves and everyone upfront that there are few rules of prosecution and investigation including you know. Ideally it's better to talk to somebody when they don't have a lawyer present right and this happens all the time with police officers and lawyers if someone's actually in custody that means that they're not free to leave that you have to give them Miranda warnings. Which is you have the right to remain silent but if they are not in custody you don't hear Flynn was not in custody and just to remind everyone Andy McCabe who is then the acting director of the FBI January twenty fourth of two thousand Seventeen McCabe Calls Flynn and basically says hey. We want to ask you some questions. We're going to have some agents follow up and come over. Flynn says yeah okay. I think there's a conversation so you know. He wasn't given questions in advance but also wouldn't surprise at his office. In the moment he was called. Bhai basically the second highest person at the FBI told agents. We're GONNA come over and interviewed so we had to have some under getting that. He knew what he had. Burn back you.

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