WHEN YOU COME TO COURT, GENERAL FLYNN, PLEASE BRING A TOOTHBRUSH*
Untitled, Oil on Panel, 23" x 35", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
“If I Did A Tenth Of What She Did, I’d Be In Jail Today. Lock Her Up”
I’m all for exposing and rooting out corruption in government, including the use of government instrumentalities and resources against one’s political opponents.
We all remember General Michael Flynn at the 2016 Republican National Convention. Attacking Secretary Clinton and her character, he led the chant that continues, with religious fervor, at Trump rallies today. Hoping to deliver a political victory to Mr. Trump, then Attorney General Jeff Sessions recruited John Huber, United States Attorney for the District of Utah, to investigate Mr. Trump’s former political rival, Secretary Clinton. [I wonder if Mr. Huber believed or understood he was being used for political purposes.] Presumably, Mr. Huber had the unlimited investigative resources of the United States at his disposal. It was Hillary Clinton, after all. Reporting now suggests that after spending more than two years investigating emails, servers, the Clinton Foundation and Uranium One, Mr. Huber found nothing to warrant opening a criminal investigation.
The chants won’t end. Trump’s name-calling won’t end. Nor will the factually unsubstantiated claim that Ms. Clinton, who as Presidential Candidate and former Secretary of State, answered questions, under oath, for eleven hours before the House Benghazi Committee, is a crook.
General Michael Flynn, on the other hand, entered a guilty plea to lying to the FBI. He admitted to lying about communications with the Russian Ambassador. He admitted to lying about his work for the Government of Turkey. He admitted his statements were false and material to the FBI’s investigation.
General Flynn appeared to “accept responsibility” for his crimes which, under the Federal Sentencing Guidelines, allows a defendant to earn favor with the Department of Justice and the sentencing judge toward a reduced sentence. Mr. Flynn also provided the DOJ “substantial assistance” in its prosecution of other crimes, which is yet another way defendants curry favor and hope for the DOJ’s recommendation and the judge’s pronouncement of a reduced sentence. The government submitted its Memorandum in Aid of Sentencing, recommending a sentence that included no prison: Mr. Flynn appeared to have accepted responsibility and provided substantial assistance. All was going well until General Flynn’s sentencing hearing when Judge Sullivan, who had access to substantial non-public information, queried whether the prosecution had considered charging the General with “treason” and said Mr. Flynn had betrayed his country. General Flynn’s legal team wisely inferred that going forward with sentencing that day might end with the General in shackles. General Flynn still had some work to do in providing the government substantial assistance, in the form of testimony against another defendant. Judge Sullivan wanted to see how remorseful the General really was.
As it turns out, not so much.
In a September 2019 blog post, General Flynn’s About Face, From Acceptance of Responsibility and Cooperation to Defiance, I detailed some of the procedural history and substance of General Flynn’s criminal case.
At the time of that post, General Flynn’s new counsel had gone on offense, most likely playing to an audience of one — not Judge Sullivan. Since then, Judge Sullivan rejected General Flynn’s claims of prosecutorial misconduct and abuse and appears ready to pronounce sentence.
The United States recently filed a Supplemental Memorandum in Aid of Sentencing, linked below. Based on subsequent events, the United States withdrew its recommendation of no prison, and contends that General Flynn should not be credited with acceptance of responsibility or given any reduction for providing substantial assistance. The Supplemental Memorandum summarizes the government’s changed position:
“The defendant is now scheduled to be sentenced almost exactly three years from the date of his primary criminal conduct — lying to the FBI — and the intervening years have included periods where the defendant has sought to assist and aid the government, and periods where the defendant has sought to thwart the efforts of the government to hold other individuals, principally Bijan Rafiekian, accountable for criminal wrongdoing. Given the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in — and his affirmative efforts to undermine — the prosecution of Bijan Rafiekian, and the need to promote respect for the law and adequately deter such criminal conduct, the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration.”
In a blog post relating to Mr. Manafort’s sentencing, Federal Sentencing for Dummy: Manafort Scores a 38, and Not on the Back Nine at Mar-A-Lago, I gave a (relatively) brief, non-nuanced overview of a very complicated system, much too complex in my opinion, of federal sentencing.
I haven’t seen an updated sentencing memorandum from General Flynn, but given his about face and change in strategy, I expect it will be similarly defiant. Again, the defiance will likely be intended for an audience of one — not Judge Sullivan.
Under the Federal Sentencing Guidelines, General Flynn’s sentencing range is 0–6 months in prison. The sentencing judge has discretion, however, to depart from the guideline range based on certain statutory factors. Given that lying to federal investigators in violation of 18 U.S.C. § 1001 carries a potential penalty of up to five years in prison, pronouncing a sentence longer than six months in prison but within the statutory range falls within the judge’s discretion. If/when sentencing outside the Guidelines range, however, the judge must explain on the record — in open court — the basis for the departure. Judge Sullivan sent a message to the defense at General Flynn’s prior sentencing hearing. General Flynn did an about face and is now openly defiant. I see the likelihood of General Flynn spending some time in federal custody, unless quickly pardoned, and then emerging as a cult-like figure, a martyr of sorts, not unlike Oliver North.
As for using the resources of the United States to investigate one’s political rivals, Attorney General William Barr likewise hopes to mollify and deliver a political triumph to Mr. Trump through criminalizing the counter-intelligence and criminal investigations of Russian interference in the 2016 election. [We already have the Inspector General’s view on this.] Attorney General Barr recruited John Durham, United States Attorney for the District of Connecticut. [I wonder if Mr. Durham believes or understands he is being used for political purposes.] Presumably, Mr. Durham has the unlimited investigative resources of the United States at his disposal. It is the Russian witch hunt, after all. I look forward to learning whether Mr. Durham concludes the Obama Administration corruptly used government institutions and resources, including the FBI, DOJ and intelligence community, for political purposes.
As personal projection in causing Mr. Barr to initiate these investigations, however, Mr. Trump may have unleashed another means to his own demise. Once Mr. Trump can no longer cloak himself in the untested shroud of temporary presidential immunity, I’m guessing the investigations into his corruption by his political opponents, which are now fair game, won’t end so well for him.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers