The Daily - The Saga of Michael Flynn

Episode Date: May 14, 2020

Federal prosecutors are asking a court to throw out their own criminal case against the former national security adviser Michael Flynn. We look at what led to that decision. Guest: Mark Mazzetti, a Washington investigative correspondent for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: Attorney General William Barr’s extraordinary decision to drop the criminal case against Mr. Flynn shocked legal experts, won President Trump’s praise and prompted a career prosecutor to quit the caseThe federal judge overseeing the case has appointed a hard-charging former prosecutor and judge to oppose the Justice Department’s efforts. The dropped charges against Mr. Flynn granted him another turnabout in a life filled with them.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, federal prosecutors are asking a court to throw out their own criminal case against former National Security Advisor Michael Flynn, Mark Mazzetti, on what led to that decision. It's Thursday, May 14th. Mark, remind us where the Michael Flynn story starts.

where the Michael Flynn story starts. Michael Flynn was a three-star army general who had a quite distinguished career, became the head of the Defense Intelligence Agency under the Obama administration. And then he gradually sort of moves into the Trump orbit in 2016 when Trump was running for president during the Republican convention. We do not was running for president. During the Republican convention. We do not need a reckless president who believes she is above the law.

He famously leads a chant. Yes, that's right. Lock her up. Lock her up, meaning to Hillary Clinton. Right. If I did a tenth of what she did, I would be in jail today. And after Trump is elected, he announces that he's going to make Flynn his national security advisor. So it's during this time when there's a series of events that get Michael Flynn into trouble. It's shortly after Christmas in 2016 when the Obama administration announces its number

of sanctions against Russia for its efforts to sabotage the 2016 campaign. It was soon after that. The Washington Post reports that Trump's incoming national security advisor, Michael Flynn, repeatedly called the Russian ambassador to the U.S. That the Washington Post reported that Flynn had been on a number of phone calls with the Russian ambassador on the exact same day, on the same day the Obama sanctions were announced. Which raised questions about whether the incoming Trump administration was trying to meddle with the Obama administration's foreign policy. I talked to General Flynn about that conversation. Vice President-elect Mike Pence goes on Face the Nation. They did not discuss anything having to do with the United States' decision to impose

a censure against Russia. Pence says that Flynn had told him that sanctions never came up on the call. But the Justice Department had transcripts of the calls in which Flynn had actually urged the ambassador not to overreact to the Obama administration's sanctions. FBI agents interviewed Michael Flynn about whether he discussed U.S. sanctions with Russia.

So FBI agents are sent to the White House to interview Flynn. What has he told investigators? He tells them that the sanctions never came up on the call. Right. He's lying to the FBI. Right. This all becomes public. And in February 2017, General Michael Flynn suddenly resigned late last night.

Flynn is forced to resign. He is the shortest serving national security advisor now in modern history. And what happens to Flynn once he's pushed out of the White House? The FBI continues to investigate Flynn, but very little is heard from him for a number of months. And during this time, President Trump starts leaning on James Comey, the FBI director, in essence, to drop the Flynn investigation. Right. And that raised this idea that the president of the United States was trying to obstruct justice. And that's this kind of cataclysmic moment that ultimately sets off a chain of events that leads to not only Comey being fired, but also the appointment of Mueller as the special counsel. Right. In many ways, the Flynn saga is the

beginning of the Mueller saga and the beginning of a very dark chapter for the Trump administration. That's correct. What ends up happening to Michael Flynn? Well, Flynn pled guilty to repeatedly lying to the FBI. Flynn ends up pleading guilty to lying to the FBI. He is cooperating with this becomes a cooperating witness in the Mueller investigation. He's awaiting sentence. Court documents make clear that Flynn was not acting alone. And the significance was that he was the first top White House official to plead guilty as part of the Mueller investigation. Court papers say Flynn could get up to six months behind bars, but he was under scrutiny.

Mark, I feel like for many people, that is where the Michael Flynn story pretty much ends, right? I mean, you have this three-star general, national security advisor, who totally falls from grace after lying to his bosses and the FBI, and now he's headed to prison. That's right. And the Mueller investigation marches on. And the next significant Flynn actually not receive any prison time and says Flynn's been a good witness. Michael Flynn cooperated plenty with the special counsel. They recommend very little, if any, jail time. The defendant provided firsthand information about the content and context of interactions between the transition team and Russian government officials. And something curious happens then where Flynn's legal team, which had been very cooperative towards the Mueller investigation. Clearly, they kind of seem to be a pretty good deal with the Mueller team, decides to take a more combative stance. They enter into the public record this idea that

maybe Flynn had been railroaded, that the FBI may have set him up. So this angers the judge. He really reads Flynn and his team the riot act, saying, are you now saying you're not remorseful? And why are you now accusing the FBI of misconduct? And basically says, let's take a pause. We're going to put this off for a few months and come back to me when you've found some remorse. In the intervening time, the ground starts to shift. William Barr has just been sworn in as the new attorney general, gaining broad control of the special counsel,

Robert Mueller's Russia investigation. William Barr takes over as attorney general. I believe it is vitally important that the special counsel be allowed to complete his investigation. He, during his confirmation hearing, pledges that he's not going to interfere with the Mueller investigation.

So Mueller famously then delivers his report to Barr in March of 2019. The deputy attorney general and I concluded that the evidence developed by the special counsel is not sufficient to establish that the president committed an obstruction of justice offense. And Barr writes a very short summary of sorts that he says summarizes Mueller's findings, which we now know misinterprets the Mueller report. It's quite clear, starting at that point, that Barr has great issues with not only the Mueller investigation, but how this all began, how the Russia investigation began at the FBI and whether there was real misconduct. I've been trying to get answers to questions

and I found that a lot of the answers have been inadequate. So he makes no secret of the fact that he's going to start investigating the investigation. He is going to launch a campaign to get to the bottom of what happened and whether there really was a political effort to go after Donald J. Trump and his advisors. And what does that mean for Michael Flynn awaiting sentencing for lying to the FBI? As the ground shifts and as it's clear that Barr is going to look at the predicate for the entire investigation, Flynn decides to get a new lawyer. Nothing about this case was done right.

They violated every rule, every protocol. Who is not only a lawyer, but also a pundit of sorts. The entire prosecution was false. It must be dismissed. This is a Texas lawyer named Sidney Powell, who has made no secret of the fact that she thinks the entire thing is a witch hunt. Their prosecution of General Flynn was needed to keep the obstruction hoax going against the president because they already knew the Russia hoax had fallen apart. Very much in line with what the president of the United States has said.

So the whole thing was orchestrated and set up within the FBI. And days before she takes over as Flynn's lawyer, she writes a secret letter to Attorney General Barr, where she writes, quote, it is increasingly apparent that General Flynn was targeted and taken out of the Trump administration for concocted and political purposes. Wow. So you're saying Flynn recognizes the winds are changing, recognizing that there's literally a new sheriff, attorney general in town, who's skeptical of the entire Russia investigation. And so Flynn hires a lawyer who fits quite nicely into that dynamic. Yes. And during that period of time, Attorney General Barr decides to appoint another prosecutor who's going to examine the case and see whether there had been any misconduct that had taken place.

So just to be clear, in addition to examining the roots of the Russia investigation broadly, Barr appoints a specific prosecutor inside the Department of Justice just to examine the Flynn case. That's right. And that leads to the release of a number of documents to the public in recent weeks that have led both Flynn's lawyers and the president to make the case that Michael Flynn was indeed railroaded and set up by the FBI. We'll be right back. Mark, tell us what's inside these documents. internal FBI and Justice Department communications around the time that Flynn was interviewed by the FBI. And what they show, kind of broadly, are that there was concern about the decision to interview Flynn. One of the documents that got a lot of attention was written by Bill Priestap, who at the time was the head of the FBI's counterintelligence division, which was running the

whole Russia investigation. And this is January 24th, four days after the Trump administration takes over. And right before there is this decision to go send FBI agents to interview the National Security Advisor. And Priestap writes, quote, what's our goal? Truth slash admission or to get him to lie so we can prosecute him or get him fired? Wow. In another document, he seems to understand the risks of conducting this interview. And he says, protect our institution by not playing games. And if we are seen playing games,

the White House will be furious. Some of that language is quite potentially inflammatory. The idea that the person running the investigation is wondering if their goal might be to get the national security advisor fired, essentially to get him in trouble. It raises this question of whether Sidney Powell Flynn's lawyers had a point that they were trying to set him up, right? And finally, there's also interesting divide that is revealed between the FBI and the Justice Department. And what some of the documents show is that there was some concern of the Justice Department about what the FBI was up to. So there's some concern about whether or not interviewing Flynn is at all a good idea. So there's some concern about whether or not interviewing Flynn is at all a good idea. Right. And we find out that the FBI only tells the Justice Department they're going to go do this while the agents are on their way to the White House. Huh. Mark, what happens once these internal FBI documents are released? What's the reaction? This unleashes a torrent of criticism. He should dismiss the case for egregious government misconduct. By Flynn's lawyer,

Sidney Powell. That the government has been hiding this evidence that shows their own crimes while they were accusing Mr. Flynn faultfully of any crimes because they made it all up. By other commentators on the right. A lot of people close to this feel like Michael Flynn was set up, never lied. They got things completely wrong and actively worked to defame. Instead, it looks like two systems of justice in terms of how the FBI handled Hillary Clinton and how they handled Donald Trump. By President Trump. in terms of how the FBI handled Hillary Clinton and how they handled Donald Trump.

By President Trump. When I looked at what they did to him, they tormented him. Dirty cops tormented General Flynn. Making the case that Flynn should never have been interviewed and the case should now be dropped. And what would be the legal basis for that argument? What in the documents do Flynn's lawyers seize on and say makes his prosecution illegitimate? Well, they're saying that these documents reveal that there was real concern in the FBI about whether the interview should have taken place in the first place. And if the interview doesn't take place, then there's no lies to worry about, and if there's no lies, then there's nothing to prosecute Flynn on, and therefore, there's no case, period,

and Michael Flynn should walk free. If you have no predicate to be there in the beginning, then whatever you find is immaterial to the investigation, And this is what Barr seizes on when he makes this incredibly dramatic decision last week. Just in this afternoon, the Justice Department is dropping its criminal case against President Trump's former National Security Advisor, retired General Michael Flynn. To drop the charges against Michael Flynn. The Justice Department today is holding that there was not a legitimate basis to do an investigation of Flynn. Barr said there was never any good reason to interview Michael Flynn in the first place.

And so whatever Flynn said during the interview was irrelevant. And Barr even goes further than that. And so whatever Flynn said during the interview was irrelevant. And Barr even goes further than that. Attorney General Barr, thank you for speaking first to CBS News. Hi, Catherine. In an interview last week, he not only criticizes the decisions that were made at the time to interview Flynn. There was not, in our view, legitimate investigation. But he also goes to bat for Flynn, going all the way back to Flynn's phone calls with the Russian ambassador. And it is very typical and very common for the national security team of the incoming president to

communicate with foreign leaders. And that call, there was nothing wrong with it, whatever. In fact, it was laudable. And it was nothing inconsistent with the Obama administration's policies. And it was in U.S. interest. He was saying to the Russians, you know, don't escalate. He actually says that the phone calls were laudable and that it was perfectly understandable that Flynn would talk to the Russian ambassador to try to lower tensions in a very tense environment.

When history looks back on this decision, how do you think it will be written? Well, history is written by the winner, so it largely depends on who's writing the history. I mean, what's fascinating about what Barr is doing is that it does not feel like every day when the Department of Justice sides with a defendant in a criminal prosecution over its own prosecutors who have successfully gone after that defendant. And it's in keeping with what William Barr has done for a year. From the time that Robert Mueller presented his report to Barr, Barr has questioned the legitimacy of the investigation and any fruits of that investigation. He has questioned whether those prosecuted were done so fairly or whether the FBI overreached. He has also backed decisions to lower sentences of others. I mean, Mark, is Barr's legal analysis in the Flynn case sound? Is it in dispute?

Barr's decision has been widely criticized. Plenty of legal experts say that prosecutors in general have wide discretion to decide which, AIDS, and the Russians would make Flynn's calls germane to this particular investigation. That is not to say that now looking back, there haven't been instances of FBI abuse over the course of the Russian investigation. abuse over the course of the Russian investigation. Mark, given everything you've just said, and reading these documents that have been released from the Department of Justice about the debate that went on inside the FBI, these notes from an agent about how to conduct this interview, whether they might basically trap Flynn in a lie and get him fired. I mean, is there a version of this where what Bill Barr has done is exactly what any justice system should do when there are serious questions about the legitimacy of a prosecution, which is kind of give the benefit of the doubt to the defendant? You always want greater transparency when it comes to how an investigation was conducted.

when it comes to how an investigation was conducted. That's true if the target is Michael Flynn or if the target is someone far less famous. The concern, of course, is whether there is abuse going on in the other direction. What do you mean? That what the attorney general is doing is in effect launching a campaign to discredit the investigation, to discredit the Mueller probe, to discredit its results in a way that

will ultimately benefit his boss, President Trump. Remember, President Trump, who's been railing against the quote-unquote witch hunt for years, will be using this for his re-election campaign. So the concern, of course, is that Bill Barr is kind of acting as a proxy warrior for the president. But Mark, is it possible that both things can be true? That the Attorney General Bill Barr may be trying to discredit the entire Russia investigation and in the process very much oversimplify things? And that the prosecution of Michael Flynn might be flawed? Yes, both of those things can be true.

And this is why the passions are so intense on this issue, because both sides want to control the narrative. And because of that, can't allow necessarily any gray area in this argument. Either Michael Flynn is a hero or he's a traitor. Either the Mueller investigation was a just pursuit or it was a witch hunt. And of course, there is a lot of space between those characterizations and nuance that gets lost because the political debate is black and white.

So, Mark, what's going to happen to Michael Flynn now? Well, of course, given what William Barr decided, there is a very likely scenario that Michael Flynn soon is a free man and he is brought back into the fold. And in the coming months, we see him once again campaigning for Donald Trump. Hmm. Thank you, Mark. Thanks, Michael. On Wednesday night, the Times reported that before the Department of Justice sought to throw out the case against Michael Flynn, it had interviewed the FBI official whose notes have been interpreted as potentially seeking to

entrap Flynn. In that interview, the official, Bill Priestap, said that his notes had been misconstrued and that there was no effort to set Flynn up. We'll be right back. Here's what else you need to know today. The scope and speed of this downturn are without modern precedent, significantly worse than any recession since World War II. We are seeing a severe decline in economic activity. In a speech on Wednesday, the chairman of the Federal Reserve warned that the pandemic could permanently damage the American economy if Congress does not act to prevent a wave of bankruptcies and prolonged unemployment.

Long stretches of unemployment can damage or end workers' careers as their skills lose value and professional networks dry up and leave families in greater debt. The message from Jerome Powell suggested that the trillions of dollars that Congress has already pumped into the economy may not be enough. The House of Representatives is poised to temporarily change its rules to allow lawmakers to vote and hold committee hearings remotely so that they can avoid traveling to Washington during the pandemic. The rules, expected to pass tomorrow, would mark a major change for a body long defined

by the tradition of meeting and voting in person. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.