Presidents personal lawyer to be sentenced. TRANSCRIPT: 12/11/2018, The Rachel Maddow Show.

Shane Harris

Date: December 11, 2018
Guest: Shane Harris

RACHEL MADDOW, MSNBC HOST: It`s been great to are you at 8:00, Ali.
Thanks. Congratulations.

And thanks to you at home for joining us this hour.

What a weird day today was in the news. Look at Mike Pence here. The vice
president today sitting there perfectly still.

For a lot of the time, his eyes were at half-mast like maybe he was
meditating or possibly dozing, but he just sat there without moving. He is
in like Lincoln Memorial pose. This whole kinetic bizarre scene is
unfolding around him that he took no part in whatsoever.

The president and the Democratic leader of the House, Nancy Pelosi, is
about to be speaker of the house again, Democratic Senate leader Chuck
Schumer, the three of them, the two Democrats and the president are having
this big animated on-camera fight in the Oval Office in front of reporters,
half talking to each other, half talking to the press. And the president
like gets put in his place by Nancy Pelosi like he is a kid who doesn`t
understand what he is in trouble for. Chuck Schumer is basically laughing
at the president, making jokes at Trump`s expense to the reporters in the
room while Trump is sitting there fuming.

But there is the vice president perfectly still. It`s like he just left
his body. He`s a human-like robot, but they couldn`t afford the one with
the internal battery pack. He is the plug-in one, but somebody
accidentally kicked the plug out of the wall. So he just powered down and
became inert.

It was such a weird start to the news day, and all the more so because it`s
kind of a big day. We are, of course, expecting the sentencing tomorrow
morning of the president`s long-time personal lawyer whose own federal case
has led to federal prosecutors implicating the president himself in
directing Michael Cohen to commit two felony campaign finance violations
during the election. Cohen has since become a more than willing cooperator
with the special counsel, whose investigating the Russia scandal and the
links between Russia and the president`s campaign.

Federal prosecutors in New York are nevertheless advising the judge in
Cohen`s case that he should get substantial prison time tomorrow, like
years in prison. This is all going to come to a head tomorrow morning in
federal court in New York.

Today, there was also an intriguing twist in the federal felony case
against the president`s campaign chair, Paul Manafort. Last week
prosecutors from the special counsel`s office told the judge in Manafort`s
case that Manafort had lied to them during the time he was supposed to be
truthfully cooperating with them. They spelled out five separate areas in
which they said Manafort has lied. Now, Manafort`s own legal defense had
initially contested that assertion from the special counsel`s office. The
defense had told the judge that Manafort believed he`d only told them the

But then today in court, twist. Manafort`s legal team appeared to back off
that assertion of his truthfulness a little bit. I had thought for sure
they were going to go into court today and pound their chests and attack
the prosecutors and say these are all scurrilous accusations against their
client, and Paul Manafort has only told the truth. That`s what I expected.

They did not do that at all. Manafort`s defense team today instead just
mildly told the judge that they`re not really sure how they want to
proceed. Manafort`s lead defense counsel telling the judge in this hearing
today that he and his fellow defense counsel, they continue to have
discussions with the special counsel`s office on this matter. And, quote,
our conversations with the government have given us things that we need to
visit with amongst ourselves and with our client about how to proceed
moving forward.

We need to visit that about a little, a little kibitz. We need to have a
little – so like I said, weird day.

The president`s long-time personal lawyer, who worked for him in his real
estate business for a decade, whose case has led to the implication of the
president in two felonies, he is due to be sentenced tomorrow. He is
probably going to prison for a substantial amount of time. President`s
campaign chair apparently may not even contest the contention from the
special counsel`s office that he has been lying to prosecutors and
investigators even since he has been in jail and has plead guilty to other

Since lying to prosecutors and federal investigators is a crime in and of
itself, if he`s not going to contest that, that means he may not be trying
to put up a defense anymore as he faces what could effectively end up being
a life sentence for him in prison. In the middle of this, the vice
president was wheeled out today in front of a room full of reporters,
although, as I said, somebody forgot to plug him in.

And now, tonight, we are finally staring down the barrel of the sentencing
of the president`s first national security adviser, Mike Flynn, who
prosecutors say met with them 19 times since he plead guilty to assist them
with the special counsel`s investigation into Russian interference in the
election, as well as a couple of other investigations that he is helping
them with as well. But those ones they`re keeping well hidden behind big
black redaction bars in their public-facing court filings about Mike Flynn.

So we knew heading into today`s news day and tonight`s show, frankly, that
tonight is the deadline for Mike Flynn`s defense lawyers to make their own
case to the judge in his case for why Flynn, yes, might be a felon, but he
is a good felon, and he has been so helpful to prosecutors, he just
shouldn`t go to prison. Just as we were getting on the air, we got notice
from the official court docket in Flynn`s case that that document has now
been filed.

It`s not yet obtainable. We can`t yet grab it off the docket, but we are
in the process of obtaining it right this second, basically by praying to
the Internet gods that control these things. So we think we`re going to
have that Flynn sentencing memo e eminently, certainly while we`re on the
air. We`re getting some expert help to parse that might mean.

But while we`re trying to download the Flynn sentencing document, remember
how we got here. It wasn`t even one month into the new Trump
administration when Flynn had to resign from the White House, right? And
then we soon learned from Sally Yates in unbelievably dramatic
congressional testimony that just a few days after Trump was inaugurated,
it was counter intelligence worries about Mike Flynn that precipitated an
incredibly dramatic White House showdown within the first week of the Trump

Then Acting Attorney General Sally Yates and another justice official who
we believe was probably the head of the national security division at the
Justice Department, that I came to the White House, not even a week into
Trump being in office, they came to the White House to warn the brand-new
Trump administration that the highest ranking official in the Trump
administration was compromised by the Russian government. I mean, what
Sally Yates brought to the White House in those first few days when Trump
was in office was just remarkable news. That the new national security
adviser had secretly been in contact with the Russian government about U.S.
sanctions against Russia, and he was lying about those contacts publicly,
and he appeared to have been lying about those contacts to other senior
officials inside the Trump administration as well.

And yes, lying itself is bad. It`s a bad thing. You have to answer for
that at the end of the day, but lying isn`t necessarily a
counterintelligence emergency for the country.

The reason why Mike Flynn was a counterintelligence emergency for the
country right at the start of the Trump administration was because he
wasn`t just lying about his contacts with Russia in the abstract. He was
lying about those contacts. He was denying those contacts while Russia
knew the truth.

I mean, the Russian government knew exactly what he had been talking to
them about. Russia knew that he was lying about those contacts publicly,
that he was trying to keep those contacts secret. And so that of course
gave Russia something that they could lord over Mike Flynn, something they
could use to coerce him or blackmail him or just threaten especially him in
order to get him to do what they wanted.

So already in the first calendar week of the new presidency, we had a
national security emergency in the White House unlike anything that has
ever happened before in this country. I mean, the Justice Department
coming to the White House with hard, cold, incontrovertible evidence that
the top national security fish in the administration was compromised by a
hostile foreign power, I mean, that`s like – bee boo, bee boo, flashing
red lights and whistles.

I mean, as a country, we don`t even have premade alarm bells for that kind
of emergency. With this thing happened with Flynn, we had to make new
alarm bells, wait for them to cool and then start ringing them because
nothing like that had ever happened before in our country.

And one of the first mysteries about the Mike Flynn counterintelligence
emergency in the White House was the response to that warning they got
about him, or the lack thereof. After the White House received that
incredibly disturbing, absolutely unprecedented emergency warning about the
national security adviser, the reaction inside the White House was nothing.
No visible reaction at all for 18 days after the White House was warned
that the national security adviser was compromised by a hostile foreign

Apparently, the Trump White House allowed Flynn not only to stay in his
job, but they continued to allow him access to the most highly classified
information in the U.S. government while the Russian government had
leverage over him that would presumably induce him to get anything they
wanted out of him. I mean, that was a really strange reaction for the
White House to have to that overt warning. And it gave rise to a whole
succession of events and unexplained behavior that we still don`t

More than a year and a half since that situation blew up with Mike Flynn,
and now as we stand on the precipice of his sentence. Why was there no
reaction from the White House? No public or apparently or even private
recognition within the White House of the seriousness of what they had just
been told about the national security adviser.

I mean, once “The Washington Post” broke the news of how the Justice
Department had issued this warning to the White House, once they broke the
news about what Flynn was suspected of doing and what the national security
emergency was about Flynn, once “The Washington Post” went public with it
and Flynn therefore finally had to step down, why then did President Trump
ask James Comey, the director of the FBI at the time, to please go easy on
Flynn. Hope you can let this go. Why did he do that?

It`s also been reported that the president additionally asked the national
– the Director of National Intelligence Dan Coats if he too could please
intercede with the FBI to somehow make them go easy on Mike Flynn, not go
after Mike Flynn. Why did the president intercede to do that on Flynn`s
behalf, given what we had all just learned about Flynn?

Why did the president initially say that Mike Flynn was fired because he
had lied to Mike Pence about his contacts with Russia, but then later the
president changed his story to say he had to fire Flynn because actually,
Flynn lied to the FBI? Frankly, why did Mike Flynn lie at all about his
contacts with the Russian government about sanctions? All right?

He is the incoming national security adviser. It wouldn`t be that weird
for Flynn to be talking to a foreign government about an expected change in
policy under the Trump administration when it came to U.S./Russia
relations, even sanctions specifically. I mean, it would be a little
awkward. Questions would be raised, but it wouldn`t be that weird.

Nevertheless, he lied about it publicly and he lied about it to the FBI,
and that honestly makes no sense if they were innocent policy discussions
about sanctions and he is the incoming adviser who is going to be working
on that stuff. You wouldn`t need to keep that stuff secret. You wouldn`t
even need to try to keep it secret, unless perhaps those sanctions
discussions were maybe linked to something that really truly couldn`t get
out and had to be kept secret. And it certainly couldn`t be disclosed to
the FBI.

The reason I raise that possibility and the reason I think this is
important on – as we head into the sentencing portion of Mike Flynn`s life
is that it wasn`t just Mike Flynn who lied about those sanctions
discussions. I mean, it`s troubling and interesting and intriguing enough
that Flynn was lying about those discussions with Russia, but it wasn`t
just him. As Flynn is about to be sentenced, I think maybe this is the
most important part. This time last year, “The New York Times” reported on
e-mails that were circulated among senior Trump transition stuff at the
time Flynn was making those contacts with the Russian government.

These e-mails showed that in fact multiple senior officials knew at the
time that Flynn was talking to the Russian government about sanctions. E-
mails about his conversations with Russia, about his sanctions
conversations with Russia were reportedly circulating among Flynn and his
top deputy in the national Security Council, K.T. McFarland. Also looped
into the conversation was another transition adviser named Tm Bossert.
Also Reince Priebus who would go on to be the chief of staff and Sean
Spicer, .who would go on to be the press secretary, and Steve Bannon who
would go on to play the grim reaper in the “Saturday Night Live” skits in
the new administration.

They all knew. They all knew at the time that Flynn was talking to the
Russian government about sanctions during the transition. They all knew
it, while he was doing it and while Flynn was lying about it. A number of
them helped spread the lies about it, including K.T. McFarland, who lied
publicly about it, who lied to reporters about it, who lied to the U.S.
Senate about it, and who ultimately lied to the FBI about it.

She later revised her statement to the FBI after she initially told them
lies. Sean Spicer also lied to the public about it from the White House
press room. Then, White House chief of staff Reince Priebus also lied
about it to the American public.


talked to general Flynn. None of that came up. The subject matter of
sanctions or the actions taken by the Obama administration did not come up
in the conversation. In fact, it was the sports team that was in an
unfortunate plane accident.

CHUCK TODD, MODERATOR, PRESS THE PRESS: So there was no challenge of
American policy currently by Mr. Flynn with the Russian ambassador? One
final question –

PRIEBUS: None. No. No, sir.


MADDOW: No, sir, no, sir. None. No challenge to the American policy
currently by Mr. Flynn with the Russian ambassador? No, no, sir, none.

That was not true. And Reince Priebus had been looped in on communications
during the transition, specifically about Flynn talking to the Russians
about sanctions, while they were happening. So while he is maintaining to
the public no, no, no, I checked with Flynn, he definitely didn`t do that,
Reince Priebus had been in on those conversations, had been looped into
those communications about the fact that Flynn was in fact talking to the
Russia and about that. And so was Sean Spicer and so was Tom Bossert, and
so was K.T. McFarland and so were other people in the transition.

They all knew while Flynn lied about it publicly. They all knew while
Flynn got in trouble for lying about it publicly. They all told their own
lies about it publicly.

And again, talking to Russia about sanctions shouldn`t have been a secret
at all. Why were they all keeping it a secret? And on top of all of that,
the person whose role in all of this is perhaps most implausible and
therefore most troubling is actually the vice president, Mr. Roboto today,
Mike Pence.

While over half the officials in the administration were overtly talking
about Flynn`s discussions about sanctions, Mike Pence was the head of the
transition said he knew nothing about that, never heard any of that, no
idea. When another controversy about Flynn arose and Flynn had to
retroactively register as a foreign agent who had been secretly working for
Turkey during the presidential campaign, Flynn`s lawyers said they notified
the transition multiple times, including in writing about Flynn`s ties to
that foreign government as well.

Again, Mike Pence was the head of the transition, which was the entity
which was notified about Flynn`s foreign ties. But Mike Pence said had no
idea about that, never heard about it. You are running the transition and
it turns out the national security adviser, the incoming national security
adviser had secret undisclosed foreign ties that he is under federal
investigation for? That doesn`t rise to your level? What else were you
busy with?

Similarly, Mike Pence publicly denied that there had ever been any role in
the transition for Mike Flynn`s son, Mike Jr. After one of many instances
in which Mike Jr. achieved press attention and some notoriety for
controversial public statements. Mike Pence was running the transition.
He said overtly that Mike Flynn`s son never had any role in the transition,
but in fact he had.

Some of the stuff he later got in trouble for were messages he sent from
his official transition e-mail address. Vice President Pence trying to
preserve some sort of deniable fiction about that was just inexplicable and
embarrassing at the time, but it`s ended up being just one of a whole bunch
of things that the vice president has said specifically about Mike Flynn
that turned out to be utterly implausible or just flat-out false.


UNIDENTIFIED MALE: What`s the level of concern within your national
security apparatus about General Flynn`s son?

has no involvement in the transition whatsoever.

UNIDENTIFIED MALE: He has a transition e-mail.

PENCE: Well, General, he has no involvement in the transition whatsoever.


PENCE: General Flynn is a very good member of our team.

UNIDENTIFIED MALE: So you`re running the transition, right?

PENCE: I am. I`m chairing it.

UNIDENTIFIED MALE: So you were saying as the head of the transition that
Flynn`s son is not involved at all in the transition?

PENCE: No, he`s not.

And I said this morning that his son had no involvement in the transition,
but I`ve talked to General Flynn, and his son was helping him a bit with
scheduling and administrative items. But that`s no longer the case. Look,
all of our families want to be helpful.

UNIDENTIFIED MALE: You`re downplaying his role, but you must be aware that
the transition team put in for security clearance for Michael G. Flynn, the
son of Lieutenant General Flynn.

PENCE: Well, I`m aware in talking to general Flynn that his son was
helping with scheduling, Jake.

UNIDENTIFIED MALE: No, but you put in for security clearance for him.

PENCE: He was helping his dad, arrange for meeting and provide meeting.
But that`s no longer the case.

UNIDENTIFIED MALE: But do you need security clearance for his scheduling?

PENCE: I think that`s the appropriate decision for us to move forward,
avoid any distraction.

UNIDENTIFIED MALE: I`m afraid I didn`t get an answer. Were you aware that
the transition had put in for a security clearance for Michael Flynn Jr.?

PENCE: I worked very closely with General Flynn. We met on many
occasions. I`ve never – I`ve never seen his son present for any of those

UNIDENTIFIED MALE: But you`re the head of the transition team. So you
know what you put in security clearance for him.

PENCE: Well, General Flynn did inform me his son was helping on
administrative matters.

UNIDENTIFIED MALE: My last question, and I`m sorry, you`re not answering
the question. Are you aware the security team had put in for a security
clearance? I mean, this is a young man who had a media profile that had
all sorts of crazy conspiracy theories and links and retweets with white
supremacists. Were you aware that the transition put in a security
clearance for him?

PENCE: Well, what I can do, in talking to General Flynn today, he made me
aware that his son was assisting him in scheduling.

UNIDENTIFIED MALE: And that you`d put in for a security clearance.


MADDOW: Can somebody please remove my power cord, move me over to a corner
and turn me around. Pop me in the closet maybe or up on to a high shelf.

Pence needs to power down now. Do not want to answer questions about this

The cover story for what happened to Mike Flynn and why he finally got
pushed out of the Trump administration after an utterly implausible public
facing series of events was that it was somehow a great problem in the
Trump administration that Mike Flynn had lied to Vice President Mike Pence.
And as strange as that seems, it is probably now a more important question
to figure out why Vice President Pence has told so many public lies about
Mike Flynn.

And as we now tonight get to find out if the sentencing of Flynn, the final
dispensation of this case is going to tell us why that is, we have just
obtained the filings from Flynn`s defense counsel in terms of how he should
be sentenced. It`s like 157 pages or something. We just got it.

We`ll go through that document with some expert help, next. Stay with us.


MADDOW: I`m going to try to disambiguate for you what we just received in
the Mike Flynn case. Mike Flynn, of course, President Trump`s first
national security adviser. He pled guilty just over a year ago to lying to
the FBI. We have since learned from the special counsel`s office in
public-facing court documents that Flynn has met with them 19 times and has
been a very helpful cooperator to the prosecutors in the special counsel`s
office who have been investigating the Russia matter and also a couple of
other investigations that we can`t see any details about because they`re
redacted in those public filings.

Well, just tonight, Flynn`s defense counsel have filed with the court their
essentially case to the judge for why Flynn shouldn`t get any jail time.
Now they`re not exactly arguing a steep – up a steep hill here, right?
Because the prosecutors have already told the judge that Flynn has been so
helpful, they don`t – they wouldn`t object if Flynn ended up serving the
bottom end of the sentencing guidelines for a crime of his kind, which
would be zero time in jail.

So, the prosecutors have already basically given Flynn`s defense counsel a
good place to start in terms of not asking the judge to throw the book at
him. But tonight, they just filed 157 pages with the judge in terms of
saying what they think should happen. And it`s a big stack of stuff.

I don`t want to mess up my in process ad hoc filing system that I just got
on my desk because I was just handed this document, but basically, we`ve
got this big stack of exhibits, which is all letters in favor of Mike Flynn
being a good guy. We`ve got this big stack of exhibits which is all stuff
about Mike Flynn`s illustrious military record, and then we`ve got the real
meat of the matter, which is basically the case being made by Flynn`s
defense counsel to the judge, and it`s interesting.

All right. We`re going to get some expert help. I can already tell there
is a matter of law here that I definitely don`t understand that I can tell
is important. So we`re going to have expert help on this in just a second.

But let me give you – as I am going through this, I haven`t made it
through all of this myself, yet, let me tell you what I`m seeing as I lock
at this first document. Quote: The defendant through his attorney submits
this memorandum in aid of sentencing and respectfully requests that the
court grant the government`s motion for downward departure, I mean,
downward departure from his – a more lenient departure from the sentencing

We request that the court sentenced him to, quote, a term of probation, not
to exceed one year with minimal conditions of supervision along with 200
hours of community service. So, that`s what Flynn`s lawyers are asking
for. A year of probation, minimal supervision, which means he doesn`t need
to report very much and he is not very constrained in his activities and
he`ll do some community service.

The filing continues. Quote, General Flynn has accepted responsibility for
his conduct. He has cooperated extensively with several Department of
Justice investigations. As the government has made clear, his cooperation
was not grudging or delayed. Rather, it preceded his guilty plea or any
threatened indictment. Interesting.

It preceded – his cooperation preceded his guilty plea or any threatened
indictment and began very shortly after he was first contacted for
assistance by the special counsel`s office. Following extraordinary public
service in the United States Army during which his innovations as a highly
decorated intelligence officer saved countless American lives and a life-
time of faithful devotion to his family and fellow service members and
veterans, as described in the powerful letters of support that accompanied
this submission, a sentence of non-incarceration is both appropriate and
warranted. Now, again, a sentence of non-incarceration would be acceptable
to them.

Now that said, the two sides here aren`t the only parties to the sentencing
decision, and it has happened in the past where prosecutors and defense
counsel have both suggested that somebody doesn`t get – that somebody
shouldn`t get jail time, particularly in big public corruption cases or
other cases that are high profile where there has been an important
cooperator as the special counsel`s office says Flynn has been. There have
been cases like that in the past where the judge in the case has
nevertheless said I don`t care that neither of you think he should go to
jail. I think the guy should go to jail.

So just the fact that both sides are asking for no jail time doesn`t
necessarily mean that Flynn is going to get no jail time, but now we`ve
seen both sides, from the prosecution and the defense. Now as indicated in
that preliminary statement, what the defense here sets up and is the bulk
of this filing is a recitation of Mike Flynn`s good works in his time in
public works and his time in the military. These are all letters of
support in favor of Mike Flynn, all the people who say he is great, and
these are all documents, including some handily redacted documents from his
military record that spell out his public service, including his extensive
career in the United States Army. It goes through his accommodations, his
combat service, et cetera.

So page two, three, four, five of the filing seems to go through his time,
even going back to his biography, growing up in a modest working class –
in modest working class circumstances in a tight knit family in a small
house in Rhode Island. Goes through his time as a lifeguard. Aw.
Lifeguards can`t go to jail.

And then becomes a paratrooper. He is in the 82nd Airborne Division. He
becomes a general. He becomes director of the Defense Intelligence Agency.
He has an extensive combat record. It goes through all of that time,
including special operations command in Iraq. Goes through being involved
in veterans charities.

General Flynn and his family are very involved in their local church
community, and gives Catholic Church details. And then we get to what he
did and why it`s not so bad that he should go to prison. The nature and
circumstances of the offense. Quote: General Flynn does not take issue
with the description of the nature and circumstances of the offense
contained in the government sentencing memorandum.

As General Flynn has frankly acknowledged in his own words, he recognizes
that his actions were wrong and he fully accepts – excuse me, and he
accepts full responsibility for them. There are at the same time, though,
some additional facts regarding the circumstances of the FBI interview of
General Flynn on January 24th, 2017 that are relevant to court`s
consideration of a just punishment.

Now here this is new, and this is fascinating. So, again, remember the
time frame here. Trump was only sworn into office on what, January 20th?
It was by January 26th, the Justice Department, hair on fire, is up at the
White House with the acting attorney general in person meeting with the
White House counsel saying your national security adviser is compromised by
the Russians. This is a counterintelligence emergency. You need to do

Part of the basis for that warning was the fact that the FBI had come in
and interviewed Mike Flynn about his contacts with the Russian government.
The U.S. government, law enforcement, intelligence agencies were well aware
of what Flynn had been saying to the Russian government. The Russian
government was also well aware of what Flynn had been saying to the Russian
government. Flynn lying about those conversations both publicly and then
to the FBI when he was questioned about them obviously put him in a
position where Russia could blackmail him, Russia could compromise him,
Russia could lean on him to do what they wanted, because they know
something about him that he feels is important enough to lie about, even to
the point where he is risking criminal exposure by lying to the FBI.

So that`s the whole way we get into the national security emergency around
Flynn. But it all hinges on the FBI coming to the White House to talk to
him. We`re about to get – you`re about to hear in this new filing a whole
bunch of new detail about the FBI coming to talk to Mike Flynn the first
week of the Trump administration, how that went down, and what Mike Flynn
says was wrong with that interaction.

All right. Here we go. Quote: At 12:35 p.m. on January 24th, 2017, the
first Tuesday after the presidential inauguration, General Flynn received a
phone call from then deputy director of the FBI Andrew McCabe on a secure
phone in his office in the West Wing. General Flynn had for many years
been accustomed to working in cooperation with the FBI in matters of
national security. He and Mr. McCabe briefly discussed a security training
session the FBI had recently conducted at the White House before Mr.
McCabe, by his own account stated that he felt, quote, we needed to have
two of our agents sit down with General Flynn to talk about his
communications with Russian representatives.

Mr. McCabe`s account states: I explained that I thought the quickest way to
get this done was to have a general conversation between General Flynn and
the agents only. I further stated that if General Flynn wished to include
anyone else in the meeting, like the White House counsel for instance, I
would need to involve the Department of Justice. General Flynn stated this
would not be necessary and agreed to meet the FBI agents without any
additional participants.

Less than two hours later, at 2:15 p.m., FBI deputy director Peter Strzok
and a second FBI agent arrived a the White House to interview general
Flynn. By the agents` account, General Flynn was relax and jocular, and
offered to give the agents a little tour of the area around his West Wing
office. The agents did not provide General Flynn with a warning of the
penalties for making a false statement before, during, or after the

This is a new material claim in the Flynn defense. He is having this FBI
interview under friendly circumstances with FBI personnel with whom he had
reason to believe he was having a sort of cordial or collegial discussion
with. They did not warn him at any time, according to Flynn`s defense
counsel that if he lied to the FBI, even in jocular circumstances like
that, he would be committing a crime. This is an interesting new claim.

OK. Back to the filing. Prior to the FBI`s interview of General Flynn,
Mr. McCabe and other FBI officials, quote, decided the agents would not
warn Flynn that it was a crime to lie during an FBI interview because they
wanted Flynn to be relaxed, and they were concerned that giving the
warnings might adversely affect the rapport one of the agents reported.
Now, what`s that`s being cited to is this footnote here in terms of these
quotes what the FBI agents were thinking and what they decided.

Here is the footnote that explains where they`re getting these quotes.
Certain information summarized or quoted in this memorandum derives from
documents furnished to defendant`s counsel pursuant to the protective order
United States versus Flynn, and then there is a case number. Undersigned
counsel conferred with the government which further represented that
disclosing the represented information does not cute a violence of the
protective order. So, Flynn`s counsel, they`re disclosing stuff that they
got from the prosecutors subject to some sort of protective order. They
say they`ve gotten permission to disclose this stuff, but this is all new
to us.

All right. Back to this. Again, before the interview, FBI officials had
decided that – quoting, if Flynn said he didn`t remember something, they
knew he said they would use the exact word Flynn used to try to refresh his
recollection. If Flynn still would not confirm what he said, they would
not confront him or talk him through it. One of the agents reported that
General Flynn was unguarded during the interview and clearly saw the FBI
agents as allies.

All right. Continuing, while General Flynn has fully acknowledged his
wrongful conduct and comes before the court to accept the consequences, the
circumstances described above warrant the court`s consideration as it
evaluates the seriousness of the offense relative to the circumstances of
witness interviews in typical cases charged under the federal law that
criminalizes false statements to investigators, including a couple of cases
prosecuted by the special counsel that are discussed below.

General Flynn`s respect for the law is demonstrated by his decision to
accept responsibility for his actions soon after the special counsel`s
office reached out to him and sought his cooperation. Even when
circumstances later came to light that prompted extensive public debate
about the investigation of General Flynn, including revelations that
certain FBI officials involved in the January 24 interview of General Flynn
were themselves being investigated for misconduct. General Flynn did not
back away from accepting responsibility for his actions. A term of
probation with minimal conditions of supervision is a just punishment.

And then they go through previous cases that involved prosecutions of
people lying to federal officials, including references to Alex Van Der
Zwaan who plead guilty in the special counsel`s case. Also George
Papadopoulos, who just got out of prison in the similar case.

And then this is the end, the nature and extent of General Flynn`s
cooperation. We cannot say it any better than the special counsel`s office
has. Given all the circumstances, a sentence at the low end of the
guideline range, including a sentence that does not impose a term of
incarceration is appropriate and warranted.

General Flynn provided timely and substantial assistance to law
enforcement. He agreed to a proffer with the special counsel`s office upon
its first request to speak with him, and with only the scanty protections
of a typical Department of Justice proffer letter. Hmm.

As the government states, his early decision to plead guilty and cooperate
likely affected the decisions of related firsthand witnesses to be
forthcoming with the special counsel and cooperate. He participated in
five pre-plea proffer sessions with the special counsel`s office and 14
additional meetings with the government pursuant to his plea agreement
entered on December 21st, 2017. In total, he participated in 19 meetings
with the special counsel and other components of the government, totaling
approximately 62 hours and 45 minutes, but who`s counting.

Additionally, General Flynn has produced thousands of documents to the
Department of Justice, even before his voluntary pre-plea proffer sessions.
He had chosen to produce sweeping categories of documents held by his two
companies rather than fight over the breadth of subpoenas, and he
facilitated the production of electronic devices. After his plea
agreement, he made another five productions of documents.

A false statements case with a guideline range of zero to six months on top
of which the government has moved for a downward departure presents a
particularly strong argument for a noncustodial sentence. Throughout the
federal court system in fiscal year 2017, a total of 130 defendants faced
sentencing where the primary defense category was either administration of
justice offenses or other miscellaneous offenses, which is a residual
category that includes the crime for which Flynn has been charged.

According to the U.S. Sentencing Commission, the median sentence imposed in
those 130 cases was zero months. General Flynn devoted his career to
serving and protecting the nation. Having made a serious error in judgment
for which he has shown true contrition, he recognized it was consistent
with the values by which he has led his life, simply to provide the facts
to those charged with enforcing our laws.

On the day he entered his guilty plea, he said he is working to set things
right. He has done so. For this reason, we respectfully request that the
court impose a sentence of probation as described above and community

So this is the filing from Mike Flynn and his defense counsel about why he
shouldn`t go to jail. They probably do no have a very hard case to make
for him not going to jail. But what they are doing in this filing is
saying, hey, the FBI agents who came and interviewed Mike Flynn, those are
the bad guys here. There is a reason they`re going out of their way to
name Andrew McCabe, who is now gone from the FBI, and to name Peter Strzok,
who is now gone from the FBI.

There is a reason they apparently have gone out of their way to be able to
quote from documents we`ve never previously seen before that were
apparently from this protective order that explained what was in the mind
of those FBI officials when they went in to meet with General Flynn,
including their perception that he seemed relaxed. It`s no material
defense to the crime of lying to the FBI that you felt happy when you did
it, but this is a public-facing plea for a reason, right? This shows that
Flynn is trying to argue his case in the court of public opinion as well as
with the court by saying that the FBI is the bad guys here. Fascinating.

We`re going to get some expert advice on what is most important here in
just a minute. Stay with us.


MADDOW: We have just obtained the filing made by Mike Flynn`s defense
counsel to the judge in his case as the judge considers whether or not the
former national security adviser should go to jail after he pled guilty and
agreed to cooperate with prosecutors. He pled guilty just over a year ago
to lying to investigators.

This new filing tonight with the judge in the Mike Flynn case gives us a
bunch more information about Flynn`s perspective on what he did wrong, his
interactions with the FBI and why he thinks he shouldn`t go to jail.

Joining us now to give us some expert help in going through this is Joyce
Vance. She is a former district attorney for the northern district of

Joyce, thank you so much. I have never been happier to see you right now
than right now when I just received 178 pages during a commercial break and
I`m trying to make sense of it while not being a lawyer.


MADDOW: Yes, exactly. We`ve all been doing this speed reading.

Let me ask you about I think the substantive – I think there is a
stylistic point, a sort of stylistic political point. I think there`s a
substantive point that it seems like Flynn`s defense is making here. And
it seems to me that the most important substantive point is that they`re
saying that the FBI agents who interviewed him when he made his false
statements about his contacts with the Russian government, they say that
the agents at no time provided him with a warning of the penalties for
making a false statement under the law that criminalizes false statements
to FBI agents or federal investigators.

Why are they pointing out that he didn`t – that he wasn`t given a warning
about the penalties for that crime?

VANCE: So in a lot of way, Rachel, this reads like a pretty routine
sentencing memo from a defendant in this zero to six-month category who`s
cooperated with the government. But obviously, Flynn`s lawyers are a
little bit concerned that Judge Sullivan, who can be something of a wild
card at sentencing, that he might decide to impose a little bit of jail

So what they`re doing here is they`re trying to give the judge every reason
to comply with the government`s recommended sentence of straight probation,
saying not only is our guy a good guy whose Cooperated, but also, you know,
your honor, the FBI didn`t advise him in advance that he could be
committing a federal felony if he lied to them. I`m not sure that that
really works in their favor like they think it does when you`re the
national security adviser and two FBI agents show up and ask if you want to
have the White House counsel sit in, you probably should know what`s

But nonetheless, I think that they present this information to try to make
sure Judge Sullivan treats their case favorably.

MADDOW: It`s especially striking given we have the special counsel`s memo
to the judge about the sentencing of Mike Flynn, and it was largely
favorable. They`re very complimentary of General Flynn in terms of the
amount of help he offered to prosecutors, the timeliness of his cooperation
in particular. One of the ways they dinged him, though, in the special
counsel`s memo, is by saying, listen, he is a very high-ranking public
official of we therefore ought to be able to expect a lot in terms of
understanding the seriousness of this kind of offense.

And in terms of our expectations of what kind of character and respect for
the law we should be able to rely on from somebody who has not only held
the kind of positions he held in the past in terms of his public service
career and his military career, but also the kind of job he was in at the
time he told these lies.

VANCE: Yes, that`s absolutely right, and under the sentencing guidelines,
there is even a little bit of an additional increment in the calculation of
someone`s range for an individual who abuses the position of government
trust which is what general Flynn did here. He could not have committed
this crime had he not been in a position of public trust. So, at every
step along the way, the prosecutors want to make sure the court gets a full
and fair picture of the defendant`s conduct and the defendant`s lawyer by
the same token wants to make sure that he walks out of the courtroom a free
man at the end of the hearing.

MADDOW: As the Flynn defense is criticizing effectively the FBI for the
way they conducted that interview and for this – the personnel that were
involved in contacting Flynn around this matter, naming FBI officials who
have since left the bureau under circumstances that brought a lot of public
opprobrium on them, it strikes me that we`re getting a bunch of new
information about the contact between the FBI and Flynn, again, during
which he lied, but we`ve got all these quotes in terms of how the FBI
agents themselves approached that meeting, how they observe – what they
observed about Flynn, what their strategy was heading into that, and all of
this quoted detail, according to a footnote in the filing comes from
something that they`re describing as a protective order.

Certain information summarized or quoted in this memorandum derives from
documents furnished to defendant`s counsel pursuant to the protective order
United States versus Flynn, and then there is a whole bunch of numbers that
I don`t understand. And they say counsel conferred with the government
which represented disclosing this represented information didn`t constitute
a violation of the protective order.

Can you just tell us what that might mean?

VANCE: Yes, I`m sorry to disappoint. There`s nothing nefarious here.
Before a defendant pleads guilty, the government provides him or her with
the same discovery that they would give if, for instance, the case was
going to go to trial.


VANCE: So among the information they would provide would be, for instance,
the defendant`s statements that the government would also turnover what we
call exculpatory material, something that might tend to be favorable to the
defendant. And in a case like this, you`d enter into a protective
agreement so that the defendant couldn`t disclose that information to
anyone else. Here, it looks like General Flynn`s lawyers did exactly the
right thing, ensuring with the government that anything that they put into
this motion was acceptable to the government. So, that`s how we get this
really interesting information about the way that the FBI approached this
sit-down interview.

MADDOW: That`s fascinating. It makes total sense.

Joyce Vance, former U.S. attorney in the great state of Alabama, thank you
for speed reading this for us tonight and joining us on short notice,
Joyce. Much appreciated.

VANCE: Thanks, Rachel.

MADDOW: All right. We`ve got more on this in just a moment, including
with one of the reporters who has helped us understand this from the very
beginning. Stay with us. We`ll be right back.


MADDOW: What this is is the new filing from Mike Flynn`s defense counsel
arguing he should receive a sentence of a year probation with minimal
supervision and some community service as his sentence for lying to the
FBI, which is something that he`s pled guilty about.

One of the mysteries about the Mike Flynn case from the beginning is why he
lied about his contact with the Russian government about sanctions in the
first place. A related question that I think deserves a lot more attention
is why other people inside the Trump administration also lied about Mike
Flynn`s contacts with the Russians about sanctions. We learned in
September from reporting by Shane Harris and Devin Barrett at “The
Washington Post” that one of the people who had lied to the FBI about Flynn
talking to sanctions was his former deputy at the National Security
Council, K.T. McFarland.

Shane Harris and Devlin Barrett first to report that McFarland had
misinformed the FBI about their own knowledge of those communications. She
had then revised her statement to the FBI. We only learned that in
September. That added a very new intriguing element of the story.

Now that we`re heading to Flynn`s sentencing and we`ve seen his argument
for why he shouldn`t serve any jail – serve any time in jail, this seemed
like a good occasion to check back with Shane Harris, intelligence and
national security for “The Washington Post”.

Mr. Harris, I understand you`ve been speed reading this along with the rest
of us tonight. Thanks very much for joining us.

You bet, Rachel.

MADDOW: What stands out to you from this filing?

HARRIS: Well, it`s clear that he has cooperated quite extensively with the
special counsel. We knew he`d given these 19 interviews. I think there is
reference to more than 60 hours of interviews with Bob Mueller`s team.

Now, we don`t know precisely what he told them, but you mentioned this
issue of K.T. McFarland revising her statements to the special counsel,
which happened, of course, after Mike Flynn pleaded guilty. We learned
from that guilty plea that the person who was telling Mike Flynn what to
say to the Russian ambassador regarding sanctions which, of course, is the
central act that is at issue here he ultimately pleaded guilty to lying
about, that K.T. McFarland was that person and she was relaying information
to Flynn that she was getting from senior transition officials while they
were all hanging out in Mar-a-Lago in December, which is the time that
Flynn made that call.

So, one, I think, has to presume he was asked extensively about that. And
I think this is a really important matter because if there is a question
still outstanding which from reporting there certainly is, but there is a
question outstanding for Bob Mueller of what did President Trump
potentially, Trump or other senior officials tell Mike Flynn to say to the
Russians. It could be that the conduit for that information being K.T.
McFarland gets you to the question of who said what and who told him to say

So I think that`s still very much at issue here.

MADDOW: And, Shane, is there a connection between who told Flynn to talk
to the Russians about sanctions, and the fact that everybody was lying
about the fact that Flynn was talking to the Russians about sanctions?
Flynn having those conversations in and of itself shouldn`t have been a
scandal, certainly shouldn`t have been something that drove people to lie -
- multiple people to lie to the FBI about it. Was there something about
who was giving those orders, who was directing those conversations that
made people feel like this was a matter that had to be kept not only from
the public, but from law enforcement?

HARRIS: That is a big question that`s been at the center of this
investigation for a long time. You`re absolutely right. There`s nothing
per se wrong with the incoming national security advisor having a
conversation with the Russian ambassador. It`s, of course, it would be
inappropriate and it is not in keeping with protocol to be talking about
policy issues and trying to understand what the Russian government might be
doing and to try to get them to hold off on retaliation for sanctions.

What I think what this ultimately gets at is the question of whether there
was any kind of quid pro quo going on between the Trump campaign or the
transition team and the Russians. This always goes to the central
question. You know, was there something the Russians were getting in
exchange for an agreement to hold off on retaliating for the sanctions that
the Obama administration put on after the 2016 election? I mean, I`ve
asked this question so many times. Why would you lie about what would be
normal conversations in the course of transition? The only real
explanation for that is that there is something that the people involved
would perceive as being inappropriate.

So, we still don`t know the answer to that, but I agree with you. It begs
the question of why would people lie about what might be kind of
inappropriate conversations from a protocol perspective, but certainly
didn`t appear on their face to be illegal?

MADDOWE: Shane Harris of “The Washington Post” who has done seminal
reporting on this story all along the way as we continue to head into what
feels like the final chapter of the Flynn story. Shane, thanks for joining
us on short notice. I really appreciate it, my friend.

HARRIS: Thanks, Rachel. You`re welcome.

MADDOW: Again, we are observing this information tonight. The bottom line
is that Flynn`s defense is asking for a one-year probation sentence and
some community service. The prosecutors in this case have already said
that they would not be offended if the judge decided to give Mike Flynn
zero jail time.

As Joyce Vance just alluded to, though, and as history tells us, judges do
sometimes depart from even what both the prosecution and the defense are
telling them, especially in cases where the prosecution is sort of in love
with their cooperators, but the judge feels that the crime that the
cooperator committed is more important than the prosecution may be giving
it weight for.

Judges have been known to impose sentences of imprisonment even when both
the prosecution and defense have said that should not happen. So, don`t
take the two sides arguing for non-incarceration as making this a done
deal. But also consider that Flynn, in his – in this memorandum and with
these filings tonight is on offense and effectively saying that the FBI
were bad actors in the way they interacted with him and that they
effectively set him up in a way that was unfair.

So he`s staying on offense here, too. It will be fascinating to see how
the court assesses this.

But that does it for us tonight. We`ll see you again tomorrow.


Good evening, Lawrence.


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