The Collusive Presidency II

Michael Flynn lied and admitted it; and the case against him was righteous.

Editor’s Note: This is the first of a two-part series on the DOJ’s settlement with Michael Flynn. It lays out the full history of Flynn’s criminal case — the Kislyak calls, the lies, the guilty plea, the Barr intervention, and the pardon — arguing that the prosecution was entirely legitimate and Flynn’s eventual escape from accountability was itself a scandal. Part II, to follow, covers the civil lawsuit and settlement.

There are really two stories here, and you can’t understand the outrage of the second without the full picture of the first.

More importantly, the Flynn settlement justifies far more scrutiny than it has received to date. First, on its own terms, it is a consummate outrage that a Trump loyalist clearly guilty of a serious crime has managed to shake down the U.S. treasury for $1.25 million. Second, it is important to expose the collusive technique of the U.S.’s joining forces with a nominal adversary to advance Trump’s efforts to rewrite history. Third, Flynn may be just the first of many, including January 6 defendants and Trump himself, to use the same corrupt gambit. For that reason, we need to be vigilant and ready to howl louder in protest in subsequent chapters.

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The administration quietly announced last week that it had settled a lawsuit with former National Security Adviser Michael Flynn over Flynn’s allegations that his criminal prosecution for a false statement was illegitimate and malicious.

In fact, it wasn’t really a settlement at all. Not in the way we think of a settlement: a compromise between two interested parties to fix a payout somewhere between what each side thinks is fair under the law.

It was rather a coordinated raid on the federal treasury in which one friend invited another to help himself to over a million dollars of taxpayer money to which he was not remotely entitled.

It was also designed to advance the parties’ common interest in a wholly fictitious, in fact outrageous, rewriting of important history: to whitewash Donald Trump and wildly distort the investigation of special counsel Robert Mueller. Mueller was a paragon of prosecutorial integrity who died recently and whom this administration continues to defame. After his recent death, Trump posted a comically asinine Truth Social, saying, “Good. I’m glad he’s dead.”

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A central part of the administration and Flynn’s shared agenda is to erase the circumstances of his crime. So a quick review is in order. It blows out of the water the legitimacy of the claims the administration paid out last week.

In the transition period after the 2016 election, when Barack Obama was still President, Flynn, as incoming National Security Advisor, had multiple conversations with Russian Ambassador Sergey Kislyak. In those calls, he urged Russia not to escalate in response to sanctions imposed by the outgoing Obama administration, telling Kislyak they needed “cool heads to prevail” because, once Trump took office, “we can then have a better conversation about where we’re gonna go.” He also urged a different approach to a pending UN Security Council resolution involving Israel.

Kislyak, in turn, called Flynn back to tell him that Russia had taken Flynn’s advice and that Moscow’s decision not to escalate was based directly on Flynn’s proposal.

Stop for a second right there.

A man who had no government role was reaching out covertly to one of the country’s principal geopolitical rivals, urging it to ignore the official policy positions of the sitting government, and Moscow was treating him as an authorized back-channel.

We have one president at a time. An incoming official does not get to freelance foreign policy with a principal adversary. It not only undermines the duly elected government—itself a grave transgression—but conflicting signals in the complicated international realm can endanger U.S. interests and human assets. It is, in fact, a crime, though not the one Flynn was ultimately charged with.

Then Flynn compounded the damage by lying about it, not just to the FBI, but to incoming Vice President Mike Pence, who went on Face the Nation and repeated those falsehoods to the American public. Meanwhile, Moscow knew exactly what had been discussed, because Kislyak had reported Flynn’s proposal back to the Kremlin, and they had acted on it. The Russians possessed the truth. The American vice president had been handed a lie.

And Flynn had created the further untenable situation that the Russians could expose him at will—strong kompromat that gave them potential leverage over a man who was about to become national security advisor.

Flynn’s communications were intercepted as part of routine, lawful surveillance of a foreign adversary. They obviously required investigation by the FBI. The conduct was in fact part of the predicate for the broader inquiry into Russian interference in the 2016 presidential election—Crossfire Hurricane—which resulted in valuable revelations about particularly grave conduct by an adversary seeking to distort democratic rule.

Crossfire Hurricane’s basic conclusion about Russian interference in the 2016 election is not subject to serious question, even though Donald Trump continues to insist, in the DOJ’s own words in announcing the Flynn settlement, that those who conducted the investigation “abused their power to mislead the American people” as part of a “Russia Collusion Hoax.”

That is, as the phrase goes, completely untethered to the facts. Crossfire Hurricane was not simply a sensible but an essential investigation. Imagine if the FBI had received credible information—which turned out to be accurate—that Russia had interfered with a presidential election and decided just to let it go.

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In January 2017, the FBI interviewed Flynn about his conversations with Kislyak. Flynn lied. Confronted with what he had actually said to the Russian ambassador, he denied saying it. The lies were not close calls or subject to interpretation. Flynn knew the facts; he lied about the facts.

Part of the counter-narrative Flynn later adopted concerned the circumstances of that interview and whether FBI Deputy Director Andy McCabe, a bete noir of the MAGA crowd, lulled him into thinking he wasn’t in any peril. The short answer is: it doesn’t matter. Agents often try to get interview subjects to let down their guard. None of that makes a false statement lawful.

Flynn’s dishonest conduct was not remotely trivial. He undermined the overall investigation, concealed his own illegitimate conduct, made the vice president an unwitting liar on national television, and made himself vulnerable to blackmail by one of the country’s most potent and unscrupulous adversaries.

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In May 2017, Robert Mueller was appointed special counsel to oversee the investigation into Russian interference. The appointment was a forced move: the country could not have confidence that Trump’s political appointees atop the Department of Justice would investigate impartially. That’s worth remembering, given that it’s Trump and his completely captured DOJ officials who inked the settlement with Flynn.

On November 30, 2017, Mueller charged Flynn with a single count of making a false statement. It was an open-and-shut case. Flynn pleaded guilty the very next day, before Judge Rudolph Contreras. He testified under oath that the prosecution’s factual summary was true and correct, that his plea was voluntary, and that he was in fact guilty. He agreed to cooperate with the investigation. None of this was the normal action of a man who believes he has been railroaded.

Flynn’s cooperation was substantial enough that Mueller’s team originally recommended little to no prison time. At a sentencing hearing in December 2018 before Judge Emmet Sullivan, Flynn reaffirmed under oath that he was guilty.

Sullivan was not impressed with the prosecution's suggestion for a light sentence. He rebuked Flynn sharply, telling him at one point that he had “arguably sold his country out,” a reference to Flynn’s unregistered foreign lobbying, though he walked the phrase back. He made clear he was not bound by the prosecution’s sentencing recommendation and offered Flynn the chance to delay sentencing to allow his cooperation to continue. Flynn accepted.

Then Flynn left the real world and took up permanent residence in MAGA Wonderland.

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In June 2019, Flynn fired the attorneys who had negotiated his plea deal and hired Sidney Powell—yes, that Sidney Powell, the inveterate election denier who was by Rudy Giuliani’s side at the “melting hair dye” press conference, pleaded guilty in Georgia to election interference, and was sanctioned by a Michigan court for her frivolous election litigation.

In January 2020, Flynn moved to withdraw his guilty plea and dismiss the case for egregious government misconduct. The FBI, he now claimed, had set a “perjury trap.” The investigation itself was illegitimate from the start, its officials all corrupt and infected with anti-Trump animus.

Persuading courts to permit withdrawal of a guilty plea is an extraordinarily uphill climb. Courts don’t let defendants who have admitted guilt in open court simply change their minds because the political winds have shifted; if they did, the entire criminal justice system would totter with every new election.

But Flynn’s strategy wasn’t really about the legal merits. It was about a coming pardon.

And Trump obliged, quietly, the night before Thanksgiving 2020.

First, though, the ground for the pardon was softened at DOJ in the spring of 2020, by which time the Attorney General was Bill Barr, whose distaste for the Crossfire Hurricane was well known. In May 2020, the U.S. Attorney for the District of Columbia—a Barr loyalist who had not previously appeared in the case—filed a motion to dismiss, arguing that Flynn’s false statements could not be proven “material” to any legitimate investigation.

Judge Sullivan did not immediately grant the motion. He appointed a highly regarded former prosecutor and judge, John Gleeson, to present the arguments in opposition that DOJ was declining to press. That was an extraordinary move that Sullivan judged necessary because the two parties, while nominally adverse, in fact were rowing in the same direction. Gleeson was stepping into the breach that the collusion between the parties created. As I explain in greater detail in Part II, a collusive lawsuit of this nature is both a constitutional and a practical problem. It deprives the court of the concrete development of the issues that the whole system assumes and depends on.

When the court finally ruled after the pardon, it dismissed the case as moot. At the same time, he made clear that he found the motion to dismiss pretextual. He criticized the government’s volte-face for relying on a “highly-constrained interpretation of materiality” without comprehensible reasoning, and not reflecting “a considered judgment.” Then he declined to rule on the merits because the pardon had rendered the question academic.

Flynn had gotten extremely lucky. But he wanted more, and he knew he had just the president to oblige.

I’ll be back Wednesday with Part II, which goes into detail about what’s completely rotten about the settlement.

Talk to you later.