- Legal Eagle is coming in loud and clear thanks to Ting Mobile. Lying to the FBI is a federal crime. Now, imagine this scenario: you have lied to the FBI. Everyone knows that you lied, because you admitted to
lying twice in open court. You said, "Yes your honor, "I lied to the FBI." You sign a detailed statement, admitting to the facts
that you misrepresented. You agreed to never file a motion to withdraw your guilty plea. You signed a document allowing incriminating
things you said in court to be used against you
in future proceedings, and now it's time for you to be sentenced, and ultimately to go to jail. And the prosecution, the lawyers who charged you with a crime, file a motion in court saying, in essence, "Hold on here, we no
longer think we can prove, "beyond a reasonable doubt, "that this defendant lied to the FBI. "So, your honor, we'd like
to dismiss these charges." Now, in a situation like this, despite the prosecutor's change of heart, the judge has the final
say over all of this. And since you agreed that
you committed the crime, and that your statements
could be used against you, you perjured yourself to federal agents. After all, you admitted to it, twice. So you're going to jail, right? Well, if we're talking
about you, deal Legal Eagle, I'm sorry to say, yes, you are probably going to jail. But, if you are friend of
the President, Michael Flynn, maybe not. Welcome to the latest episode of, "As the Department of Justice Turns." (regal music)
(record scratching) Oh past Devin. You thought you were gonna be able to release this video on Monday. (heartily laughing) I laugh, you handsome idiot. You have no idea of the crazy stuff that's gonna happen throughout
the rest of this week. It's got everything from
corruption of the DOJ, to whistleblowers at the FBI, crazy procedural stuff. So if, at the end of this video, it looks like I have bags under my eyes, and I haven't gotten any sleep, it's because I have bags under my eyes, and I haven't gotten any sleep, because I've continually
tried to revise this video to be up to speed with all of the crazy
stuff that's happening. It's definitely worth your time. This is unprecedented in terms
of what the DOJ is doing, what the judge is doing
in response to that. So yeah, let's stick around. It's definitely worth your time. It's a insane story. And let's turn it back over to past Devin, you beautiful moron. (static buzzing) If you were wondering what
just happened to Michael Flynn, and why the Department of Justice is attempting to drop the
prosecution against him, and if they can even do that, I'm about to take a deep dive into the ironclad case against Flynn, and the ins and outs
of 18 USC Section 1001, and the big mess at the
Department of Justice. Let's start with some
background on Michael Flynn, and how he found himself in
this particular situation. Michael Flynn was only employed
by the Trump administration for 24 days, but a lot happened during those 24 days. Flynn made many phone calls
to foreign governments, particularly to Russia, and then lied to to the FBI, and particularly the Trump administration, about those phone calls. This happened during a period when Flynn was already being investigated for working with the Russians. So just who is Lieutenant
General Michael Flynn anyway? Well before joining the
Trump administration, Michael Flynn was a
retired Lieutenant General who held two intelligence posts
with the Federal Government. Flynn was the Director of the
Defense Intelligence Agency under President Obama, and served as the
National Security Advisor to President Trump. While serving in the Obama Administration, Flynn became the first American
to visit the GRU in Moscow. The GRU is the successor to the KGB. Flynn retired from the DIA in 2015, a year earlier than expected, and then scuttlebutt is
that Flynn's resignation was generally attributed
to being a not-great boss. But Flynn's stints in
the intelligence world were marred by allegations of mishandling of sensitive information and, potentially, deception. When a government official
serves in a position where they handle sensitive information, they are required to disclose all contacts with foreign nationals and governments. During Flynn's time as DIA Chief, his activities raised alarms among some CIA and British
Intelligence Officers. They claimed that Flynn
concealed his relationship with a Russian-British graduate
student, Svetlana Lokhova, whom Flynn met on a trip to
Cambridge in February of 2014. The two carried-on an
email correspondence, with Flynn referring to
himself as "General Misha." Now, there's no proof
that Lokhova was a spy or a honey trap for Flynn, and in fact she later
filed a defamation lawsuit against "The Wall Street
Journal," "The New York Times," "The Washington Post,"
and MSNBC, amongst others. And this will be of interest
to all of you Legal Eagles who watch my videos about defamation, because her lawyer was none
other than Steven Biss, the same lawyer who represents Devin Nunes in many of his, what I think almost everyone agrees, are frivolous defamation lawsuits against Internet cows and
other phantom menaces. Now, Lokhova's case was dismissed. It was actually handled
by a friend of mine, and I think this generally falls into what you would
consider an anti-slapsuit. But one of the questions that tangentially I would
like to have answered is, who is paying for Steven Biss to file all of these
crazy defamation lawsuits? If you happen to know the
answer to that question, please send me an email, 'cause I would very much like to know. At any rate, after Flynn's retirement
from the armed services, and from the intelligence community, he started a consulting business called the Flynn Intel Group. And in 2016, Flynn
appeared at a conference, whose participants
discussed the coup attempt against Turkish dictator Recept Erdogan. And at the time, Flynn was on record for
getting rid of Erdogan, who he believed was pushing
Turkey away from secularism, and toward radical Islam. - Really became a secular country, meaning a sort of a regular
sort of nation state, and then began to move towards Islamism. This is Turkey. - You may recall that
Erdogan was the one that, a few years ago, had his armed guards beat the crap out of a bunch
of protestors here in DC. But, as so often happens, Turkish business groups
hired Flynn Intel Group, and paid them lots of money, such that by 2016 Flynn was
lobbying on Erdogan's behalf. And on Election Day in 2016, Flynn wrote an op-ed for "The Hill" explaining the US needed
to fully support Erdogan. And this was a particularly big deal, because Flynn was the
former Head of the DIA, and was close to the incoming President. But there was one big problem: Flynn had failed to disclose
that he had be paid by Turkey for the consulting work
when he wrote the op-ed. And, "The Hill" amended the article, saying that Flynn didn't tell them that his firm had received payments from a company with close ties
to the Turkish government, nor did he tell them that the company had reviewed
the draft of the op-ed before it was submitted. And, on top of that, as a retired military
intelligence officer, Flynn is required to
obtain prior permission from the Defense Department
and the State Department before receiving any money
from foreign governments. However, after Flynn retired, he accepted $45,000 from "Russia Today," an English-language media outlet that is owned by the Russian government. "Russia Today" paid Flynn
to attend a dinner in Moscow where he hung out with none
other than Vladimir Putin and the Green Party's own Jill Stein. Now, Flynn also accepted money
from Kremlin-linked companies for speaking engagements, but again, he didn't seek
approval for any of this. And this is where FARA
comes in for the first time. After it was clear that
Flynn was deeply involved in promoting Erdogan's interests, this caught the attention of the Pentagon and other intelligence
services around the world. It was clear that Flynn's secret work
for foreign governments may have violated the Foreign
Agents Registration Act, or FARA. FARA is a law that requires individuals who are representing political
interests of foreign powers disclose their relationship
with the foreign government, and the information related
to activities and finances. In other words, if you're working for foreign governments, the American public has
a right to know about it. This is obviously particularly important where there are major policy
differences between countries. And in this particular case, for the last five years, the United States and
Turkey have disagreed over where the US should
extradite Fethullah Gulen, a Muslim cleric living in the mountains
of eastern Pennsylvania. Gulen, who's 81, is the leader of a religious movement within Sunni Islam called Hizmet. Some say promote peace and civility, whereas Erdogan believes
that Gulen is a terrorist who is behind efforts to
remove him from power. Now, at the same time, a Turkish national named Bijan Rafiekian was a partner in the Flynn Intel Group. Rafiekian, Flynn, and others
lobbied the US government to extradite Gulen to Turkey. And as it happens, Rafiekian
and a co-conspirator, were later convicted in their role in plotting to covertly influence United States politicians and
public opinion against Gulen. And, as if this wasn't enough, Flynn and his son were
allegedly offered $15 million to travel to the Poconos and kidnap Gulen and extradite him to Turkey. And, a reminder why this is important, Flynn was frequently
lobbying foreign governments without disclosing his activities
or his pay arrangements. And it was around the same time that, despite this activity,
or perhaps because of it, Donald Trump tapped Michael Flynn to be his National Security Advisor. Now, because of this, on August 16, 2016, the FBI opened up an investigation to find out whether Flynn was being controlled or
influenced by Russia. He was being investigated
for violating 18 USC 951, which makes it illegal
to be a foreign agent. This investigation wound-down
by January 4, 2017, right before Donald Trump took office. The FBI was preparing to close this case. However, during the same period, the Obama administration
was trying to understand why Russia had not responded
to the additional sanctions that they had levied against Russia for hacking US elections. What they learned is that Flynn
had actually been chatting with Russian Ambassador Kislyak. Now, there are some circumstances where you might want to
talk to a foreign colleague for various reasons, and in transition situation. But what the FBI found is that Flynn had been
discussing the sanctions that had been levied against Russia by the Obama administration. And there are disputes about
whether this conversation was about policy or not. But the context of this conversation was that if Russia, indeed, reacts against the Obama sanctions, then effectively the Trump administration is going to have to respond once it takes office. So the Trump administration didn't want to be in a hole against Russia and have to retaliate against it, which, under any
reasonable interpretation, is a conversation about policy. Now, the case agent in charge argued that the Flynn investigation
should remain open because of this particular information. Now, while the DOJ and the FBI tried to figure out what to do, Vice President Mike Pence suddenly and publicly said that, in fact, Flynn did not interfere with the Russians, and did not have policy
discussions about the sanctions. Allegedly, that's because
Flynn lied to Mike Pence. Now, query whether Mike Pence knew about this information or not, but the party line is
that Flynn lied to Pence, Pence went public with the lie, and by proxy, carried that misrepresentation forward to the American public. - I knew that he lied to me. And I know the President
made the right decision with regard to him. - And at that point the FBI
decided to interview Flynn about whether he was working
with the Russians or not. The interview wasn't about
election interference per se, but it was in connection
with the ongoing concern about Flynn's own actions. And, eventually, Flynn agreed to have a voluntary
conversation with the FBI. So, in this context, let's talk about the crime of lying to the federal government. Under 18 USC 1001, it should surprise no
one that it is a crime to lie to the federal government. Section 1001 makes it a crime
to knowingly and willfully make any materially false, fictitious, or fraudulent statement, or representation, in any matter within the jurisdiction of the executive legislative
or judicial branch of the United States. Now, to prove a violation of Section 1001, the prosecutor must prove
the following five elements. Number one, a statement or representation, or document was made or used. Two, it was false,
fictitious, or fraudulent. Three, it was material. Four, it was made or used
knowingly and willfully. And five, it was related to an action within the authority of the
relevant federal agency. Now, the third element, that a statement was material, is often the most disputed issue in a Section 1001 case. Now, according to the DOJ's own handbook, the test for materiality
under Section 1001 is not whether a false statement actually influenced a
government employee or function, but whether it had the
capacity to influence them. The ultimate issue, according to the DOJ, is that if a lie is an attempts to influence a decision-maker, ie, convince them of something, then it's material. It doesn't matter if the FBI already
knows that you're lying, or isn't convinced by your lie. That doesn't effect the
materiality of the lie itself. In other words, it's not necessary to show
that the particular lie ever really influenced anyone. And when the DOJ prosecuted Flynn, they argued, and the judge found, that his lies were in fact material. So let's talk about the things that Michael Flynn actually lied about. In order to plead guilty, Flynn had to agree to a detailed
statement of the offense. Now, this document is not always a take-it
or leave-it proposition from the prosecutors. In most cases, and certainly in this case, the defendant and lawyers
pour over the language, and negotiate with the prosecutors, about precisely what the
defendant is admitting to. So, what did Flynn admit to lying about? Well, there are three categories of lies. First, lies regarding his communications with the Russian Ambassador
to the United States. Second, lies about his
communications with Russia and other countries about Israel. And third, lies about his paid
work for foreign governments. So let's talk about the
first category of lies, lies about Russia. The Special Counsel,
led by Robert Mueller, was investigating Russia's role in 2016 election interference. Now, a key issue was
whether the Trump campaign, through intermediaries, including Michael Cohen and Michael Flynn, family members like Jared
Kushner and Don Jr., and campaign staff like Paul Manafort, discussed the possibility of
lifting US sanctions on Russia in exchange for help in the 2016 election. After President Trump was elected, but before he was sworn-in, the US government implemented additional
sanctions on Russia. Mueller reported that
people close to Trump indeed tried to undermine US sanctions before Trump was inaugurated. Now, according to Flynn's
statement of the offense on January 24, 2017, Flynn voluntarily agreed to
an interview with FBI agents. He wasn't coerced into
having this interview, he voluntarily agreed
to talk with FBI agents. Now, during this interview, Flynn said that he did not
ask Russia's Ambassador to refrain from responding to the new Obama sanctions against Russia. And he also said that he, quote, "Did not remember a follow-up conversation "where the Russian Ambassador said "that Russia had chosen
to moderate its response "because, specifically, of its
communications with Flynn." Now, those statements
were unequivocally false. Flynn admitted that on the
same day that President Obama had signed an executive order imposing sanctions against Russia for its interference in the
2016 Presidential Election, the Russian Ambassador called Flynn. And when Flynn said he didn't
remember the conversation, that was a lie. And there were additional phone calls between Flynn, the Trump
Transition Team, and Kislyak. Flynn admitted that after he phoned Trump's
people at Mar-a-Lago, he then called Ambassador Kislyak to ask that Russia not
escalate the situation, and only respond to the US sanctions in a reciprocal manner. Flynn then reported back to the group hunkered-down at Mar-a-Lago. Flynn spoke with Kislyak
again on December 31st, when they discussed Russia's
intention not to retaliate in response to US sanctions, because of Flynn's request. And once again, Flynn called senior members of the presidential transition team, to tell them that Russia
wasn't going to retaliate. Now, why does all of this matter? Why are these lies material? Because Flynn was
communicating with Russia, a foreign adversary, that they didn't need to retaliate against President Obama's sanctions, leading to an inference
that he was telling them that President Trump would
get rid of the sanctions as soon as he was in a position to do so. It's also a signal that
President Trump didn't care that Russia, according to
intelligence agencies in the US, interfered in the US election. And perhaps most importantly,
and most shockingly, the Russians, of course, knew at all times what had and had not been
discussed with Michael Flynn, and they knew what policy might and might not be on the table. They knew what potential policy
changes were going to happen with the Trump administration. And worst of all, they had
caught Michael Flynn in a lie. They knew that Michael Flynn had lied to Vice President Mike Pence, and to the American people. So they now had leverage against the National Security
Advisor to the United States. They knew that he had lied
to the American people. That's really bad. Apart from all of the legal
issues in Section 1001 or FARA, that's basically a worst-case scenario from a counterintelligence perspective. On top of that, there were
lies about a UN resolution. Michael Flynn admitted to
making false statements about a UN Security Council resolution condemning Israeli settlements. Flynn claimed that he did not request that any of the countries take any particular
action on the resolution. But, in his statement of the offense, Flynn acknowledged that
the statement was false, he really did contact the countries to try and influence their vote in the UN. And then, there's the
third category of lies, lies about paid work
for foreign governments. When Michael Flynn took the
job with President Trump, he made false statements about what the Flynn Intel
Group had been up to. Specifically his activities, quote, "For the principle benefit
of the Republic of Turkey." Flynn made, quote, "Materially false statement
and omissions," end quote, including hiding that
the Government of Turkey was directing his activities. Although Mueller did not
formally charge Flynn with violating FARA, he did include admissions
in the Statement of Offense, and Flynn has pled
guilty to those offenses. So, that takes us to Flynn's guilty plea. So why did Flynn plead guilty? Well, as with most criminals, it's because cooperation
gets you a lighter sentence, and sometimes being charged with only a small fraction of the offenses that ultimately could
have come down the pike. And Flynn decided to cooperate fully with the Special Counsel's investigation. He participated in 19 interviews with the Special Counsel's Office. And the extensive cooperation
convinced Robert Mueller to recommend a relatively light sentence. And back in December 2017, Flynn appeared in court
to enter his guilty plea. He did not object to the
prosecutor's description of his lies to the FBI. And Flynn admitted that
he had violated the law. The judge asked, "Are you
entering this plea of guilty "because you are guilty, "and for no other reason?" To which Flynn replied, "Yes, your honor." He reaffirmed his plea at another hearing on December 18, 2018, one year after his first appearance, and he said that he was satisfied with his lawyer's representations, did not want a second opinion
about pleading guilty, and did not want to withdraw his plea in light of certain FBI agents being investigated for misconduct. And, that he knew lying to
the FBI was a federal crime. As part of that plea, Flynn agreed not to file a motion to withdraw his guilty plea. And although generally, Federal Rule of Evidence 410 prohibits the use of
guilty plea statements to incriminate a defendant
in later proceedings, Flynn explicitly waived
Rule 410 in his guilty plea. But by January of 2020,
Flynn had new lawyers. He had attempted to withdraw his plea, and claim that all of
his earlier admissions were actually lies, and was asserting that he, in fact, never lied to the FBI. Now that's not to say
that Flynn's prosecution has been completely without issue. Flynn has long complained that he was being railroaded
by the deep state, and he had long complained
that his lawyers had a conflict of interest and
provided ineffective counsel. And that had largely been an issue in terms of trying to
undo his guilty plea. He obviously had pleaded
guilty several times, and was trying to be able
to withdraw that plea. Now through most of this ordeal, Flynn was represented by a firm called Covington and Burling, a huge US firm, white shoe, well-known for being
politically connected, and one of the biggest and most well-respected
firms in the country. Flynn dropped Covington and Burling for the aforementioned reasons last year, and signed with another
very well-known attorney named Sidney Powell. Interestingly, in April
of 2020, of this year, Covington and Burling revealed that they had recently uncovered emails and handwritten notes that they claimed were inadvertently left
out of a trove of records that they turned over
to Flynn's new lawyer, Sidney Powell. Now, it's hard to opine on the claims of an effectiveness of counsel without knowing more about
the representation here. Ineffectiveness of counsel
is generally a defense that applies to the indigent, not a political appointee with one of the biggest
firms in the country. That said, it's pretty unusual to
have to turn over documents long after you have
been fired by a client, and have that client
retain another lawyer. I mean, it's not a good look to have potentially relevant documents that the new attorney needs to review and to see. That being said, Covington and Burling had these documents throughout their representation of Flynn, so it's a very hard burden to show that failing to turn over these
documents to the new lawyer is going to have prejudice
to the prior representation. He's got a very steep
uphill climb to make there. Which takes us to the actions
of the Department of Justice under the guidance of
Attorney General Bill Barr. Now, with Flynn about to be sentenced, there was speculation that President Trump would actually pardon him for his crimes. But, it appears that instead,
Bill Barr took action. First, in January 2020, Barr appointed a US
attorney, Jeffrey Jensen, to review Flynn's prosecution. This was unusual, especially since Flynn
was about to be sentenced, and Jensen had never reviewed
any of the prosecutions that came from the Special
Counsel's investigation. And query why we have a
Special Counsel at all, if the actions of the Special Counsel can simply be reviewed and undone by later Attorneys General. You can see that there might be a problem if you fire the Attorney General and then appoint an Attorney General who's just going to undo the supposedly independent investigations of the Special Counsel's Office. We'll talk about that later. By the time that Jensen was
brought on to review the case, the judge already ruled that there was no reason
to dismiss the case. But in a brand new motion, the DOJ now claims that it
was totally inappropriate for the FBI to question
Flynn in the first place, and they're trying to dismiss
the claims against him, despite his multiple guilty pleas, and being on the eve of sentencing. And to sum that up, Flynn was investigated
for being a Russian agent, he had secretly talked to Russia about undermining US sanctions, he had lied to Mike Pence
about his involvement, and whether that's legal or not, it was the reason that Donald Trump gave for firing Flynn in the first place, or at least leading to
Flynn's resignation. And he had a long history of hiding his involvement
with foreign governments. Yet, unbelievably, the DOJ is now saying that none of that was a good enough reason for
the FBI to interview Flynn, and that those representations were not material to that investigation. And recall that the
Special Counsel's Office had a dual mandate. They were both to investigate the counterintelligence issues at hand, and also any criminal
liability that might attach to the Russian hacking and interfering with the US Government. Now, the only attorney to sign
the DOJ's motion to dismiss was newly appointed US
attorney Timothy Shea. He's the head of the US Attorney's Office in the District of Columbia, and thus, he is one of the top three most powerful prosecutors in the country. The other two being the
Southern District of New York and, arguably, the Eastern
District of Virginia. Potentially, the US Attorney's
Office for the District of DC is the most powerful office; it depends on who you ask. And it's important to note that Shea, who is a longtime colleague of Bill Barr, replaces outgoing US attorney Jessie Liu, who left the post at the
US Attorney's Office for DC to take up an appointed position with the Treasury Department. But, just a few months ago, the Trump administration inexplicably just removed
her nomination entirely, so she was effectively
fired from her past job. And the Department of
Justice, through Timothy Shea, is arguing in this motion to dismiss, that the government had already decided not to
charge Flynn under FARA, so the decision to interview him by the FBI was illegitimate. Now, the DOJ had not
officially written a memo closing the file. But Shea portrays the
closure of the investigation as a mere formality. He went even further by
exonerating Flynn entirely, stating that his chats with
Kislyak were totally fine. And the DOJ's brand new position is that, quote, "There was no factual
basis for the predication "of a new counterintelligence
investigation, "nor was there a justification, or need, "to interview Mr. Flynn as to
his own personal recollections "of what had been said." The DOJ motion relies
heavily on an interview with former DOJ lawyer Mary McCord. This 2017 interview with McCord about the circumstances
of the investigation, was cited more than 25
times in the motion. However, Mary McCord wrote an
editorial just a few days ago, slamming her former employer, the DOJ, for twisting her own words. Now, although Mary McCord is no longer with the
Department of Justice, she was an incredibly
high-ranking official at the time of the Flynn investigation. She was, in fact, the Deputy Attorney General in charge of national security. According to McCord, her interview merely describes a, quote, "Difference of opinion about what to do "with the information that Flynn "apparently had lied to incoming
Vice President Mike Pence," and whether Flynn's lies should be shared with President-elect Trump, not as to whether the investigation should proceed in the first place. McCord states that the debate was a completely different topic that had nothing to do with the legitimacy of interviewing Flynn. Quote, "The report of my interview "is no support for Mr. Barr's
dismissal of the Flynn case. "It does not suggest that the FBI "had no counterintelligence reason "for investigating Mr. Flynn. "It does not suggest that the
FBI's interview or Mr. Flynn, "which led to the false statements charge, "was unlawful or unjustified." McCord said that Flynn's
lies were material to a counterintelligence threat, because his lies exposed him
to the threat of blackmail. And McCord implies that the DOJ's new
arguments are misleading, because they ignore that the investigation was into whether Flynn
had violated 18 USC 1951; in other words, whether he was actually
working with Russia or not. The official investigation was not closed, because the FBI learned about Flynn's conversations with Kislyak, and sought more information. I'm not an FBI agent, but it doesn't seem unreasonable for the FBI to hold
off on closing the file in order to question someone who might be spying for a foreign country. And DOJ prosecutors
originally told the court that Flynn's lies were material, and that any attempt to
undermine the sanctions could be evidence of collusion between Russia and the Trump campaign. Whether that ultimately
proved to be true or not doesn't mean that you can just get away with lying to the FBI with impunity. Again, it doesn't matter if the FBI believed what
you were saying at the time in order for the lies to be material. But in the motion that
was filed last week, the DOJ reversed itself, and ignored the judge's prior ruling, in order to claim that
things have simply changed. The DOJ hasn't really told
the court what that change is, it's just changing its position. And Tim Shea also argued that
the case should be dropped since the government
can't prove Flynn lied beyond a reasonable doubt. This is particularly peculiar, given the number of times that Flynn has already plead
guilty to the matter itself. There's really no question that he lied, it's only a question of whether
that was material or not. Now, Shea's motion also claims that it's based on new information, but McCord confirms
that the DOJ had access to all this information the whole time. And speaking of which, one of the high-ranking FBI
agents has also come forward, claiming that the Barr-led
DOJ interviewed him about his actions and notes
surrounding the Flynn interview, and failed to apprise the court of his testimony in evidence, which he claims was counter
to the DOJ's narrative in the Shea motion to dismiss. Apparently in preparation
for this motion to dismiss, the DOJ interviewed Bill Priestap, who was the former head of
FBI Counterintelligence, two days before making
their extraordinary request to drop the case in
front of Judge Sullivan. Now, apparently they
didn't tell Judge Sullivan about Mr. Priestap's interview, and that's a bad look, because generally lawyers have a duty to present negative evidence, or negative authority to a judge. You don't have to give it the light most-favoring the other side, but you do have to at least
acknowledge that it exists. And "The New York Times"
reports that the DOJ is claiming that they're in the process of writing up a report of
the Priestap interview, and will, in fact, file
that with the court. We'll see if that happens. Now, Priestap apparently says that the FBI was never
trying to lay a perjury trap, and claims that FBI officials were trying to do the right thing in questioning Mr. Flynn, and knew of no effort to set him up; media reports to the contrary. Meanwhile, not everyone at
the Department of Justice is just sitting idly by. Brandon Van Grack, who heads a unit responsible for prosecuting violations in FARA withdrew from the case, and from two others
where Flynn is a party. This tends to be what happens when a lawyers does not
stand behind the pleading that his boss wants him to file. We saw that in the Roger
Stone sentencing case, where four US attorneys
withdrew from the case because of what appeared
to be improper interference by AG Barr. And although the Attorney
General is a political appointee, the DOJ's overall law enforcement goals shouldn't be partisan. The vast majority of people
who work at the FBI and the DOJ will spend their careers working for both Republican and
Democratic administrations. This doesn't mean that the aren't entitled
to political opinions, but their opinions aren't
germane to their investigations, and it shouldn't interfere, whether they decide to
prosecute someone or not, or give special treatment to
other people in government. And in fact, former DOJ
lawyer Jonathan Kravis wrote in an editorial for
"The Washington Post," revealing that he left the DOJ because of similar machinations involving the Roger Stone investigation. Kravis was especially offended
by Barr's earlier comments, criticizing prosecutors for their actions. And, as Kravis points out, career prosecutors and FBI agents aren't allowed to comment publicly about criminal investigations, nor can they respond
to their boss, AG Barr. Kravis wrote: "Department lawyers are ethically bound "to protect the confidences
of their client, "the US Government. "Barr's decision to excuse
himself from these obligations "and attack his own silenced
employees is alarming. "It sends an unmistakable message "to prosecutors and agents - "if the President demands, "we will throw you under the bus." And Kravis is not alone. More than 2,000 former Department of
Justice employees agree. They published a statement condemning Barr and calling for his resignation, stating, "The Department's
action is extraordinarily rare, "if not unprecedented. "If any of us, or anyone
reading this statement, "who is not a friend of the President, "were to lie to federal investigators "in the course of a properly predicated "counterintelligence investigation, "and admit we did so under oath, "we would be prosecuted for it." They go on to say that, "We thus unequivocally "support the decision
of the career prosecutor "who withdrew from the Flynn case, "just as we supported the prosecutors "who withdrew from the Stone case. "They are upholding the
oath that we all took, "and we call on their colleagues "to continue to follow their example." Like Kravis, these ex-employees are
also extremely concerned about retaliation by Barr and Trump. Quote: "President Trump "accused the career
investigators and prosecutors "involved in the Flynn case of treason, "and threatened that they
should pay a big price. "It is incumbent upon the
other branches of government "to protect from retaliation
these public servants, "and any others who were targeted "for seeking to uphold
their oaths of office "and pursue justice." Kravis is just as skeptical of claims that the DOJ is acting in good faith. Quote: "If the Department truly acted "because of good-faith
commitments to legal positions, "then where is the evidence
of those commitments "in other cases "that do not involve
friends of the President? "Where are the narcotics cases "in which the Department has
filed a sentencing memorandum "overruling career prosecutors? "Where are the other
false-statements cases "dismissed after a guilty plea?" Speaking for myself, if we wanna have a conversation about criminal justice reform, and curtailing some of the FBI's power, or their ability to use the
broad mandate of Section 1001 so that we can talk about
a more fair justice system, I'm all for that. And a whole bunch of other defense lawyers would love to be able to
remove some of the power that the federal government, or other investigators have when investigating people. But this isn't one of those cases. This isn't a case of
reforming the underlying law. It's a case of special treatment doled out to one of the
President's closest advisors. That is the exact opposite
of the rule of law. That's crony-capitalism. It's corruption. So many people who had
no frame of reference lashed out at some of the
tactics that the FBI used in this particular case, and were appalled. But the truth is the FBI has done similar
things in thousands, if not hundreds of
thousands of other cases. You wanna have a conversation about reforming some of those actions? Fine, I'm all for it. But the Michael Flynn
case is not the venue for criminal justice reform. It's just, simply, special
favors being doled out to friends of the President. The opposite of the rule of law. Flynn had every advantage. He was at the highest
echelons of government. He had the best lawyers, and he spoke to the FBI,
voluntarily, of his own accord, on advice of counsel. He wasn't railroaded, he wasn't entrapped by the government. You wanna talk about
criminal justice reform, let's do it. This is not that case. So let's talk about what's
going to happen next, and the judge's role. Judge Sullivan is the presiding judge, and the government has
asked Judge Sullivan, in Flynn's case, to drop the prosecution entirely. Sullivan is not required to do so, under Rule 48a of the Federal
Rules of Criminal Procedure, a government motion to
dismiss an indictment, even after a guilty plea, requires what's called leave of court. So the judge gets to decide. Judge Sullivan, probably, will grant the leave to dismiss, because there won't be an opposing party. Both the government and Flynn are going to argue in favor of dismissal. But Judge Sullivan does have
the discretion to deny it and just go straight to sentencing. And it's significant that
Flynn plead guilty twice, and that Judge Sullivan ruled Flynn's lies were material
to an investigation, and that he has already
received sentencing memoranda from both sides. But we don't really know
what Judge Sullivan will do. He's known as a mercurial judge, and he will go his own way. Okay, so fast forward a couple of days, and here's where things
really start to get crazy in terms of the prosecution
of Michael Flynn, and particularly, Judge Sullivan. So, in reaction to this, effectively, unprecedented motion by
the Department of Justice, Judge Sullivan started making some moves. The first thing that he
did, a couple of days ago, was that he issued a minute order, which is usually just a short
order that appears on PACER, have a huge document associated with it, in which he asked for third parties to write what's called an amicus brief. An amicus brief is a brief
filed by a third party that has no stake in the case itself. It's an amicus brief,
filed by an amicus curiae. And this is very, very
normal in an appeals context, where appeals cases have
far-reaching implications. They set precedent, and so it's not unusual for a third party to want to weigh in. When I have litigated in
front of the federal circuits, I often have third parties
file these amicus briefs, either in support of my arguments, or against my arguments, because they might be affected by it. An amicus brief is a very
unusual thing in a trial court, because generally nobody cares except the parties who
are actually in trial. But, court has inherent power to ask for these amicus briefs, and Judge Sullivan, here, has done so. He, apparently, wants additional opinions, or briefs, to be filed, about this particular situation. There are multiple ways of spinning this, but the most likely situation is that the judge is
showing his displeasure with the DOJ's position. That because there's no one arguing for the continued
prosecution of Michael Flynn, he wants a third perspective to be able to understand
countervailing issues. And given the unprecedented nature of this motion to dismiss, it's not crazy to want someone else going to bat for the
prosecution of Michael Flynn. Typically though, the federal judge usually accedes to the request of the DOJ prosecutors. If the DOJ doesn't want to move forward with the prosecution of an individual, generally there's no reason why the judge would not agree with that position. But obviously, for reasons
that we have already discussed, this is not a usual situation, and nothing is really normal
in the motion to dismiss that the DOJ has filed. Now, after Judge Sullivan
asked for these amicus briefs, that's when it really got real. He issued another order a few days later, in which Judge Sullivan has
asked for a magistrate judge to be appointed to basically
present an opposition to the DOJ's motion. The order seeks to appoint Judge Gleeson, who is a former federal prosecutor, and former federal judge, and that judge is going to, basically, make the arguments that
the DOJ is not making in moving forward with Michael Flynn. And on top of that, and here's where things
really get interesting, Magistrate Judge Gleeson
is going to decide if Michael Flynn has
committed criminal contempt by perjuring himself. So let's take a step back here, because this is pretty unprecedented. What is a magistrate? Well, a magistrate judge is sort of an ad hoc helper of the court. So the federal judges are all appointed by the President of the United States. And they often deal with situations that are either too complex, or too time consuming
to deal with themselves. Or, they want a neutral third party view on a particular issue. So you would create what's
called a magistrate judge, which is sort of an ad hoc position. I've run into magistrate judges a lot, because often judges don't want to have to deal with discovery, literally millions of pages of documents, and so they hand that off to a magistrate. Sometimes the magistrate
is a former federal judge, a retired federal judge, and sometimes it is a lawyer who wants to eventually become a judge; so they sort of get their training wheels by becoming a magistrate. In this particular case, Judge Gleeson is a former
federal judge, retired, but he's also a former federal prosecutor. And here, Judge Gleeson is
sort of wearing two hats. On the one hand, the first part of the order
requires Judge Gleeson to be an advocate to
oppose the DOJ's motion. And the second half of the order is effectively to be
a neutral third party, and make an independent decision as to whether Michael Flynn has committed criminal
contempt and perjured himself. Now, what's going to happen here is absolutely anyone's guess, and we don't really know what to expect, other than the fact that this question of whether Flynn committed
criminal contempt by perjury is separate from his 1001 guilty plea of lying to federal officials. So really, it can only be in connection
with the representations that Flynn has made to the court, and, of course, that is what criminal contempt is for. It's the inherent power of the judge to punish people for shenanigans that happen in front of them. Now of course, the DOJ dismissing a
case after a guilty plea is extraordinarily rate, to the point that I've
never heard of it happening, but the judge appointing a magistrate to oppose such a motion is just uncharted territory in general. Obviously some people are gonna argue that this is yet more evidence of the deep state
railroading Michael Flynn, and some are gonna argue that this is simply an independent judge standing up to a clearly inferior motion by the Department of Justice. But as with the request
for a third party briefing, this really signals that Judge Sullivan does not want to give into
the Department of Justice. He still might, but he's obviously going to
put the DOJ through the ringer before they get there. And, in fact, Sullivan has
actually done this before, with the prosecution of Ted Stevens. So, who knows what Judge Sullivan is ultimately going to do here. And not that the deep
state theory has any merit, but this may be, in fact, a bit of a whipsaw, that Judge Sullivan is taking out a stick to try to get Michael Flynn
to do things the easy way instead of the hard way. Judge Sullivan might be showing
that things can, in fact, get worse. That there's the possibility
of yet more jail time associated with criminal contempt, so it would behoove him
to simply move forward with the easy thing of the guilty plea, instead of making a ruckus and potentially finding more jail time. So it might be a reason
to persuade Michael Flynn to back down from the shenanigans and also try to get the DOJ to back down. Things can get worse before
they get better for them. But I'd say that the DOJ
has already been embarrassed by this whole episode, and it seems like things
are gonna get worse before they get better. But ultimately here, and this is great advice for
young lawyers, old lawyers, pretty much anyone that may
ever show up in federal court: do not mess with federal
judges (chuckling). They will make you regret that. So, it's anyone's guess
what may happen next. But this motion from the
Department of Justice is starting to create a
pattern from Bill Barr's DOJ. The DOJ is emboldened. It's suddenly contradicting
earlier prosecutorial decisions without any rationale or
change in circumstances, and career DOJ employees are resigning rather than sign the pleadings. Only Tim Shea signed
the motion to dismiss, and even then he did it
with the wrong bar number. And given the speculation
about a presidential pardon, it really appears that
this a backdoor pardon by the Department of Justice, that instead of making
President Trump take the fallout from actually pardoning a sentenced and convicted Michael Flynn, they're not even going
to get to that stage by dismissing the investigation entirely without even getting to sentencing; so it was like the plea never happened. At the end of the day, Flynn made phone calls to
the Russian Ambassador, and then lied about them; that's why he was fired by
the Trump administration. And apparently everyone
from the NSA to the GRU was listening to those phone calls. But the real travesty is how much money that
call probably cost Flynn. He could have saved so much
money on his cellphone bill with Ting Mobile. And, you know, if you're
gonna commit treason, you might as well do it
as affordably as possible. And with Ting Mobile's LTE network, your calls to Moscow will be super clear. Ting Mobile is a different
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iPhones and Pixel phones, and you can use the same phone number that you're using right now. There's no contract, no overage fees, and no carrier tricks; you just pay a fair price for the talk, text, and data
that you use up every month. And Ting has award-winning
customer service, because they don't have any
brick and mortar stores. Not that you would go to
a brick and mortar store right now anyway (chuckling). So they pour their resources
into phone support. If you have an issue,
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for whatever you want. And, of course, clicking on
the link in the description really helps out this channel. And check out this other playlist of all my other real law reviews where I tackle legal news of the day, including quarantines, and
craziness going on at the DOJ. So just click on this playlist, and I'll see you in court.
This deserves more attention but Jesus Christ it is so complex I recognize why it isn’t getting it.