The criminal case against Michael Flynn has been back in the news for the past week or so. Retired General Flynn, you will recall, was a top foreign policy advisor to President Trump during the 2016 campaign, and then took the job of National Security Advisor to the President a few days after the inauguration on January 20, 2017. Flynn lasted in that job all of about three weeks, resigning on February 13, 2017. Over the next several months there were persistent indications that Flynn was being investigated for something or other by the FBI, and then by the Mueller gang once their probe got going in May 2017. Flynn ended up taking a guilty plea on November 30, 2017. A complete set of Flynn’s plea documents can be found at this link. Recently, Flynn, with new lawyers, has been seeking to get himself exonerated despite his prior agreement to plead guilty.

To anyone paying attention, it has been completely clear, at least since the public availability of the plea agreement in late 2017, that Flynn was set up by corrupt FBI agents and Mueller prosecutors. I covered the subject in a January 12, 2018 post with the title “Do Justice And The FBI Investigate Crimes Or Manufacture Them?” Supposedly, according to the plea agreement, Flynn’s “crimes” consisted of “making materially false statements or omissions” to FBI agents (one of them being Peter Strzok) in a January 24, 2017 interview about the substance of two conversations that Flynn had had with Russian ambassador Sergei Kislyak in December 2016 (while serving as a member of the Trump transition). But there were always two glaring problems with the conviction that stood out from the very face of the plea documents:

• What was the subject or crime being investigated that led Flynn to be questioned about his conversations with Kislyak in December 2016? There needs to be some predicate for an investigation before a false statement to the FBI can violate the false statements statute, 28 U.S.C. 1001. The December 2016 date of the Flynn/Kislyak conversations was after Trump had been elected — and thus could not have been part of some “collusion” to steal the election, which was a fantasy in any event. December 2016 was also a time when Flynn as NSA-designate had every legitimate reason to be talking to ambassadors of major foreign powers as part of his job.

• The FBI established that the statements were false because it had transcripts of the Flynn/Kislyak conversations from the government’s general program of listening in on everything the Russian ambassador does. But if the FBI already had transcripts of the conversations, why was it asking Flynn about them — other than as part of a set-up?

Although the guilty plea is now almost two and a half years old, Flynn has still not been sentenced. It seems that the Mueller people promised Flynn a no-jail-time sentencing recommendation in return for “cooperation,” but then felt that they did not get full cooperation (maybe because Flynn had nothing to deliver on Trump). More recently (January 2020 — after the Mueller probe was over) the government withdrew that sentencing recommendation and asked for up to six months. That has led Flynn, with his new lawyers, to put on an aggressive push to get documents out of the government to find out the motivations of why they were chasing him in the first place. A relatively small number of new documents has recently been released, and Flynn’s lawyers have made a series of court filings attributing great significance to these newly-released documents.

I’m not sure I see great significance in the new documents; but then, that’s because I always thought it was obvious from the face of the plea agreement itself that the Flynn prosecution was improper. Nonetheless, questions remained open as to why Flynn would have agreed to this crazy agreement, and as to why the FBI was so seemingly desperate to get a conviction of this guy.

On the question of why Flynn would agree to this, the only hypothesis I previously saw was that he was being financially ruined by the defense costs. That could well be true. In the new documents are additional suggestions that the prosecutors used threats to go after Flynn’s son as additional pressure to coerce the plea. No surprise there.

On the side of the FBI’s motivations to get Flynn, there are several interesting things. First, there is an FBI internal memo of January 4, 2017, written (according to its “synopsis” line) to “document the closing” of the investigation of Flynn. The reason given for the closure was that “no derogatory information” about the subject had been found. So as of January 4, it was all going to be over with no charge. But then the top guys intervened. The same January 4 day, famous FBI agent Peter Strzok sent a text message (also at the same link) to an individual whose name is redacted, asking that person to “Pls keep it [the investigation of Flynn] open for now.” Another text message from Strzok informs his mistress Lisa Page of his intervention, and she responds “Phew.” And another text from Strzok to an individual whose name is redacted (maybe the same guy) says that the “7th floor is involved.” The seventh floor is where the top brass of the FBI, including James Comey and Andrew McCabe, had their offices. And finally, with the investigation reopened, we have a set of handwritten notes from Bill Priestap (FBI Assistant Director of Counterintelligence) with a date of January 24, 2017. The notes discuss strategy for the upcoming interview of Flynn that took place that same day, and include the classic question “What’s our goal? Truth/Admission, or to get him to lie, so we can prosecute him or get him fired?”

These documents definitely provide additional corroborating circumstantial evidence of an FBI whose top brass was determined to get Flynn with or without basis to do so, and to manufacture the basis if need be. But why was it so important to the FBI to prosecute or get rid of Flynn? Andrew McCarthy, in this May 2 piece at National Review, has a perfectly reasonable hypothesis: that Flynn, with his extensive prior experience in the national security bureaucracy, knew how the process worked, and would quickly figure out that the Trump/Russia investigation was continuing even after Trump had taken office, and would promptly take action to shut it down.

I hesitate to predict whether the effort by Flynn’s lawyers to use this new material to get him exonerated will succeed. After all, he pled guilty — and to do that, you need to stand up personally in court and admit under oath that you did the crime, and also say that you are doing this voluntarily, and nobody coerced you, and so forth. So Flynn has dug himself a fairly deep hole to try to get out of.

On the other hand, the following would be a pretty good prediction of where we go from here: (1) indictments of the likes of Comey, McCabe and/or Strzok at some point close enough to the election to have maximum effect; and (2) a pardon of Flynn sometime after the election.