Michael Flynn sentencing memo contains new details of obstruction of justice


Prosecutors have unsealed new details in the case involving former national security adviser Michael Flynn, revealing that he provided information to special counsel Robert Mueller relevant to his obstruction inquiry. The documents include an addendum to the government’s sentencing memorandum, a memo recording an unidentified individual’s communications with Flynn in January 2017, and an interview by the special counsel’s office of Peter Strzok. (h/t Lawfare Blog). Flynn provided details in Mueller’s obstruction inquiry, new memo shows:

“The defendant informed the government of multiple instances, both before and after his guilty plea, where either he or his attorneys received communications from persons connected to the Administration or Congress that could have affected both his willingness to cooperate and the completeness of that cooperation,” the filing states.

“The defendant even provided a voicemail recording of one such communication (see below). In some of those instances, the SCO was unaware of the outreach until being alerted to it by the defendant,” the document continues.

Flynn also provided information to prosecutors about discussions within President Trump’s campaign about WikiLeaks, the organization that released hacked Democratic emails tied to a Russian plot to interfere in the 2016 election, according to the new filing.

The new details appear in a less-redacted version of the government’s addendum to Flynn’s sentencing memo, which was filed last December.

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The sentencing memo released last year, which was heavily redacted in places, showed that Flynn assisted Mueller in detailing interactions between the Trump transition team and Russia.

Flynn also assisted with the criminal investigation into his business associate Bijan Kian in the Eastern District of Virginia, according to the memo, but those details were restricted at the time because Kian hadn’t been charged. Kian was charged later in December with working as an unregistered foreign agent and has pleaded not guilty; his trial is slated for this summer.

The less-redacted filing also states that Flynn provided information on “discussions within the campaign about WikiLeaks’ release of emails” and “potential efforts to interfere with the SCO’s investigation” — phrases that were previously redacted.

While providing new insights into Flynn’s cooperation, parts of the memo remain redacted, including what appears to be another unknown matter in which Flynn assisted the government in the course of his cooperation.

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Numerous references to Flynn’s testimony appear throughout Mueller’s 448-page report, including in a section that lays out episodes the special counsel reviewed in the course of the investigation into possible obstruction by Trump.

The report states that, after Flynn withdrew from a joint defense agreement with Trump and began cooperating with the investigation, “the President’s personal counsel left a message for Flynn’s attorneys reminding them of the President’s warm feelings towards Flynn, which he said ‘still remains,’ and asking for a ‘heads up’ if Flynn knew ‘information that implicates the President.'”

“When Flynn’s counsel reiterated that Flynn could no longer share information pursuant to a joint defense agreement, the President’s personal counsel said he would make sure that the President knew that Flynn’s actions reflected ‘hostility’ towards the President,” the report states.

NOTE: The President’s personal counsel at that time was John Dowd. The Mueller Report states that investigator did not interview “the President’s personal counsel” over concerns for attorney-client privilege.

This makes absolutely no sense to me, because there is a Crime-Fraud Exception to the Attorney-Client Privilege, i.e., a client’s communication to his attorney is not privileged if he made it with the intention of committing or covering up a crime or fraud. This recording is evidence of witness tampering to obstruct justice, and the Special Counsel should have followed up the lead to determine if it was with the knowledge and at the direction of Donald Trump. In my opinion, Mueller dropped the ball. Congress should not repeat his error.

And this isn’t the only personal counsel of the president who may have committed obstruction of justice. As the New York Times reports, House Panel Investigates Obstruction Claims Against Trump Lawyers:

The House Intelligence Committee is investigating whether lawyers tied to President Trump and his family helped obstruct the panel’s inquiry into Russian election interference by shaping false testimony, a series of previously undisclosed letters from its chairman show.

The line of inquiry stems from claims made by the president’s former personal lawyer and fixer, Michael D. Cohen, who told Congress earlier this year that the lawyers in question helped edit false testimony that he provided to Congress in 2017 about a Trump Tower project in Moscow. Mr. Cohen said they also dangled a potential pardon to try to ensure his loyalty.

In recent weeks, the committee sent lengthy document requests to four lawyers — Jay Sekulow, who represents the president; Alan S. Futerfas, who represents Donald Trump Jr.; Alan Garten, the top lawyer at the Trump Organization; and Abbe D. Lowell, who represents Ivanka Trump. The lawyers all took part in a joint defense agreement by the president’s allies to coordinate responses to inquiries by Congress and the Justice Department.

Among other things, it appears that your clients may have reviewed, shaped and edited the false statement that Cohen submitted to the committee, including causing the omission of material facts,” the Intelligence Committee’s chairman, Representative Adam B. Schiff of California, wrote to lawyers representing the four men in a May 3 letter obtained by The New York Times.

He continued: “In addition, certain of your clients may have engaged in discussions about potential pardons in an effort to deter one or more witnesses from cooperating with authorized investigations.”

The lawyers have so far balked at the committee’s requests. Mr. Schiff is prepared to issue a subpoena to compel cooperation if necessary, according to a senior committee official.

Schiff told reporters Thursday he’d release next week the transcripts from Michael Cohen’s closed-door hearing with the Intelligence Committee. Presumably Michael Cohen brought receipts and named names in his testimony.

The other intriguing reveal in the unsealed Flynn sentencing memo is this: Person ‘connected to’ Congress tried to influence Flynn’s cooperation with Mueller:

An unidentified person “connected to … Congress” allegedly tried to influence former national security adviser Michael Flynn’s willingness to cooperate with special counsel Robert Mueller’s investigation, according to a filing unsealed in federal court Thursday.

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“The defendant informed the government of multiple instances, both before and after his guilty plea, where either he or his attorneys received communications from persons connected to the Administration or Congress that could’ve affected both his willingness to cooperate and the completeness of that cooperation,” according to the newly revealed portion of the filing. “The defendant even provided a voicemail recording of one such communication.”

Though Mueller’s report spelled out potential efforts by Trump allies to discourage Flynn from cooperating with Mueller, the report is silent on any of those efforts arising from Capitol Hill.

Informed speculation would suggest that Rep. Devin Midnight Run Nunes, who was a member of the Trump transition team alongside Gen. Flynn, and who was the most aggressive in trying to derail the Mueller investigation early on, would be a likely suspect. But it really could be any Trump sycophant. Don’t forget that there are a dozen “redacted” open investigations referenced in the Mueller Report.

U.S. District Judge Emmet Sullivan, who has the Michael Flynn case, has orders parts of Mueller report unredacted:

U.S. District Judge Emmet Sullivan has ordered portions of special counsel Robert Mueller’s report to be unredacted and made public in the criminal case against former national security adviser Michael Flynn.

Portions of the report relating to Flynn are redacted and would be made public under the order.

It is the first time a federal judge has ordered the Justice Department to make public portions of the report the agency had kept secret.

In addition, Flynn Voicemail Set for Release as Influence Attempts Disclosed:

U.S. District Judge Emmet Sullivan ordered transcripts of the phone message and of Flynn’s conversations with Russian officials to be posted on the court’s publicly-available electronic docket by May 31. He also ordered that unredacted portions of the Mueller report related to Flynn be handed over to him.

The big reveal will come by May 31.

The case is U.S. v. Flynn, 17-cr-232, U.S. District Court, District of Columbia (Washington).