Federal District Judge Emmet G. Sullivan is right to review the background of the plea agreement between former National Security Adviser Michael Flynn and the government before deciding on a sentence for his admitted infractions of the law. The apparent violations of due process alleged by counsel for the former Army lieutenant general demand to be investigated, and Judge Sullivan is certainly the man to do it.
Gen. Flynn has pleaded guilty both to lying to the FBI and representing a foreign government without registering as a lobbyist. The defense has alleged that he may have been trapped into making a false statement to the FBI, and Judge Sullivan has said he will review all relevant documents from the FBI and other sources to examine the merits of the charge.
Judge Sullivan is a noted stickler for due process and fairness in the criminal justice system. In 2009 he threw out the conviction of former Alaska Republican Sen. Ted. Stevens on corruption charges because of serious prosecutorial misconduct.
Legal due process requires the government to play by the rules when it brings an indictment or obtains a guilty plea or conviction. Among these rules is a right to counsel and the right to know the nature of any interview by law enforcement officials. These are fundamental rights of every American.
According to his attorneys, Gen. Flynn was not advised that he needed a lawyer present when questioned on Jan. 27, 2017, by two FBI agents who subsequently charged him with lying. He was told the agents wanted to talk with him about his authorized but highly sensitive telephone conversation with the Russian ambassador during the presidential transition in early 2017.
But, according to his lawyers, he was given the impression that it would be a friendly conversation and was not warned that lying to the agents was a federal crime. He also was not told that the agents had a verbatim transcript of the intercepted conversation obtained from the National Security Agency.
Among the documents cited by the defense team was the transcript of an interview with former FBI Deputy Director Andrew McCabe saying that he discouraged Gen. Flynn from having a member of the White House counsel’s office present for the interview. Mr. McCabe was fired for other misconduct earlier this year. The Wall Street Journal has also cited an interview with former FBI Director James Comey in which he said his agency decided to go directly to Gen. Flynn without consulting the White House counsel’s office because the office was not yet fully organized, offering the FBI an opportunity to bypass it.
These facts alone raise troubling questions about the relationship between the Comey FBI and the Trump White House, and about the fairness with which Gen. Flynn was treated.
There are other facts that Judge Sullivan should review. In a sentencing document provided by the office of special prosecutor Robert Mueller, reference is made to a Washington Post story on Jan. 12, 2017, in which columnist David Ignatius reported on the content of Gen. Flynn’s conversation with the Russian ambassador and suggested the national security adviser-delegate was guilty of violating the Logan Act’s seldom invoked prohibition against private negotiations with foreign governments.
The article is mentioned by the special prosecutor as a predicate for the FBI interview of Gen. Flynn.
The inescapable implication of this article is that someone in the departing Obama administration violated laws against disclosing highly sensitive intelligence — exposing the fact that the Russian embassy’s communications were being tapped — and other laws prohibiting the public disclosure of the identity of American citizens engaged in conversation with foreign intelligence targets. Indeed, by law such persons could only be “unmasked,” and then only as a highly sensitive secret, at the request of a few high-ranking government officials.
So the question begs to be asked: Who put the FBI onto Gen. Flynn and why? It should be noted that Gen. Flynn’s defense team is not asking for an answer to this question nor is it withdrawing his guilty plea for lying to the FBI. It is simply asking for the lightest sentence possible, involving probation with minimal supervision.
Judge Sullivan may not be able to get to the bottom of the broader question of the possible misuse of the criminal justice system for political reasons, but his review of all the relevant facts is absolutely necessary.