Judge tells Flynn you sold your country out. TRANSCRIPT 12/18/18, The Rachel Maddow Show.

Transcript:

(JOINED IN PROGRESS)

 

REP. NANETTE BARRAGAN (D), CALIFORNIA:  You couldn`t go anywhere.  I mean,

they were hungry and cold. 

 

And one of my concerns is we just heard about a seven-year-old Jakelin

dying under CBP custody.  And here we have a situation where they

completely ignored this family. 

 

CHRIS HAYES, MSNBC HOST:  All right, Congresswoman Nanette Barragan, thank

you very much for sharing that story. 

 

That is ALL IN for this evening. 

 

“THE RACHEL MADDOW SHOW” starts right now.  Good evening, Rachel. 

 

RACHEL MADDOW, MSNBC HOST:  Good evening, Chris.  Thanks, my friend. 

 

HAYES:  You bet. 

 

MADDOW:  Thanks to you at home for joining us this hour.  Let`s jump right

in.  A lot has happened today. 

 

Just to hit the high points today, the Trump Foundation was forcibly closed

by the state of New York today as part of an ongoing lawsuit by New York

against the president`s charitable foundation.  That lawsuit in New York

alleges a, quote, shocking pattern of illegality involving the Trump

Foundation, including unlawful coordination with the Trump presidential

campaign and repeated willful self-dealing.  The president`s foundation

will be shut immediately, and its remaining assets will be distributed to

charities approved by the office of the New York state attorney general in

conjunction with the state judge. 

 

So, that was the start of the day for the president.  It should be noted

that lawsuit continues dissolving the president`s foundation and

distributing its assets, according to the wishes of a judge in the New York

A.G.  That doesn`t end the case against the president`s foundation.  In

that case, remember, the president himself and his three eldest children

are all named targets of the state`s lawsuit. 

 

So, this was very bad news for the president and his family today, and that

case may yet have consequences in the criminal law for the president and

his family.  That case has elements that have been referred for potential

criminal prosecution to both the FEC on the issues of coordinating

illegally with the president`s campaign and also the IRS for alleged

criminal tax violations involving the president`s foundation.  So, that`s

one thing that happened today. 

 

We also today got a very intriguing development in the mystery case, the

mystery case that somehow involves special counsel Robert Mueller but

nobody`s been quite sure how it involves him.  This is a matter we`ve

talked about a few times on the show.  This is a matter that has just been

confounding reporters and observers of the special counsel`s office for

weeks now.  All of the filings and all of the hearings conducted in

relation to this case have been either filed or conducted under seal, which

means the public can`t attend and can`t read this stuff. 

 

Now, we`ve known that this case involved Mueller and his team somehow.  We

knew that the case, or we could surmise that the case involved somebody

fighting a subpoena that they had received from the grand jury that Mueller

and his team work with in Washington, D.C.  We knew that the one judge on

the court that was hearing this matter, the one judge on that court who was

appointed by President Trump is the one judge who was recused from that

case.  The one Trump appointee on that court was recused. 

 

So, that, among other things, led to a lot of speculation that maybe this

mystery case was about the president.  Maybe the mystery party in this case

was the president himself resisting a subpoena from Mueller and his grand

jury. 

 

But nope, today we got a ruling from the federal appeals court in this

mystery case.  And honestly, I still don`t totally understand what it is,

but it does not appear to be about President Trump personally.  It appears

to be about a company, we don`t know what company, it`s just called “the

corporation” in the ruling.  And the corporation appears to be owned by a

foreign country, a country that is not identified.  It`s just called

country A. 

 

So the bottom line of that ruling is that Mueller wins the subpoena to the

corporation is not going to be quashed by the court.  But as to who the

corporation is, what the relevant country is here, and why this fight has

been conducted in secret, what this fight has been all about involving some

foreign corporation, yes, I don`t know.  We finally got a ruling in this

case, and we still don`t really get what that was all about.  We`re going

get some expert help on figuring that out in just a minute, a little bit

later on this hour. 

 

But, of course, the unbelievable turn of events in today`s news happened in

federal court in Washington, D.C., in the courtroom of Judge Emmet

Sullivan.  And this just did not go as anybody expected it to.  So, this is

the former national security adviser of the United States appearing in

court for sentencing after he plead guilty more than a year ago and entered

into a cooperation deal with the special counsel`s office. 

 

This whole thing today, this whole sentencing today was supposed to roll

downhill.  There wasn`t even a difference of opinion between the

prosecution and the defense as to what should happen to Mike Flynn today. 

Both side said he should get zero jail time. 

 

But amazingly, that consensus view of the defense and the prosecution is

not what happened today.  Again, we will get expert advice on this in just

a moment, but this just turned into a train wreck for Mike Flynn, and more

broadly for supporters of the president, particularly conservative media

and on Capitol Hill who had tried to turn elements of the Mueller

investigation into some sort of indictment of the FBI, into some sort of

scandal about the FBI and law enforcement.  That took a major hit today. 

 

I mean, this was – this was just a – I mean, we knew there was a little

element of unpredictability here, but this went way, way off the rails,

even before we got to the part where everybody in the courtroom kept saying

the word “treason” over and over again.  But this is how it started. 

 

The judge: Good morning.  The courtroom clerk: good morning, your honor. 

The judge: good morning.  Sorry. 

 

Your honor, this is criminal case 17-232, United States of America versus

Michael Flynn.  Will all parties please come forward to this lectern and

identify yourselves for the record? 

 

Mr. Van Grack: Good morning, your honor, Brandon Van Grack on behalf of the

United States.  He`s a veteran counterespionage prosecutor.  With me at

counsel`s table is Zainab Ahmed, who`s a veteran counterterrorism

prosecutor, and William McCausland for the FBI. 

 

The judge says, good morning, counsel.  Ms. Ahmed says: good morning, your

honor.  And then Mr. Kelner, good morning, your honor.  Robert Kelner with

Covington and Burling for the defendant, Michael Flynn, and with me at

counsel table is Stephen Anthony.  The judge says, all right, good morning. 

Good morning, counsel. 

 

And then the judge says, Mr. Flynn, good morning, how are you?  And then

the defendant, Michael Flynn says, good. 

 

The judge: All right.  Good morning.  This is case in a very unique

posture.  Judge Sullivan says, quote, I read every filing very carefully in

this case. 

 

There is a great deal of nonpublic information in this case, and I`ll just

leave it at that.  If any of my questions require a party to disclose

nonpublic information, or if I begin to discuss something nonpublic, don`t

be shy in telling me.  My clerks over the years have learned to do this. 

And because we just got a transcript, he makes some sort of gesture. 

 

If I get off the script or get into areas where – I won`t be offended.  I

may not see you.  Stand up or say something pleases.  I don`t want to

unintentionally say something that should not be revealed on the public

docket. 

 

So, this is right at the outset of today`s hearing, and this is a really

good reminder right at the outset that all of those redactions we have seen

in the court filings in Mike Flynn`s case, all those big black bars, those

things are redacted to us the public, but they`re not redacted to the

judge.  He has seen the nonpublic information.  He has seen the unredacted

explanation of the kinds of cooperation that Flynn has offered to the

special counsel, the cases that he has helped with. 

 

The judge has also seen the FBI`s unredacted notes about their interactions

with Flynn and about him lying to the FBI.  And we really do not know as

members of the public what`s behind those black redacting bars.  But who

knows?  Maybe what`s behind those black bars is what contributed to this

judge going off like a volcano today about the seriousness and the

terribleness of Mike Flynn`s behavior. 

 

I`m going to cut to the chase here, because this is the part you have heard

about today, if you have heard about any of this.  The judge, speaking to

Michael Flynn, the defendant at this point. 

 

The judge, quote: I`m going to be very frank with you.  This crime is very

serious.  It involves false statements to the federal bureau of

investigation agents on the premises of the White House, in the West Wing

by a high-ranking security officer with up to that point an unblemished

career of service to his country that is a very serious offense. 

 

You know, I`m going to take into consideration the 33 years of service and

sacrifice and I`m going to take into consideration the substantial

assistance of several ongoing investigations, but I`m also going to take

into consideration the aggravating circumstances, and the aggravating

circumstances are serious.  Not only did you lie to the FBI, but you lied

to senior officials in the Trump transition team and administration.  Those

lies caused the then vice president-elect, the incoming chief of staff, and

the then press secretary to lie to the American people. 

 

Moreover, you lied to the FBI about three different topics, and you made

those false statements while you were serving as the national security

adviser, the president of the United States` most serious national security

aide.  I cannot minimize that.  Two months later, you again made false

statements in multiple documents filed in pursuant to the Foreign Agents

Registration Act. 

 

So, all along, you were an unregistered agent of a foreign country while

serving as a national security adviser to the president of the United

States.  I mean, arguably, that undermines everything this flag over here

stands for.  At which point, he swivels in his chair and points at the

American flag in the corner of his courtroom. 

 

The judge continues, arguably, you sold your country out.  The court is

going to consider all of that.  I cannot assure you that if you proceed

today, you will not receive a sentence of incarceration.  I cannot make any

guarantees, but I am not hiding my disgust, my disdain for this criminal

offense. 

 

The defendant, Michael Flynn, yes, your honor.  The judge, but it`s your

call, Mr. Flynn.  I`m just being up-front with you, as I would with anyone

else, and everyone who knows me, knows that. 

 

If you want to proceed to sentencing today, I can not promise anything

other than I`ll give full consideration to anything you wish to say, if you

want to stay anything at all.  Do you understand that?  The defendant,

Michael Flynn, yes, sir. 

 

The judge, but if you want some more time and to come back later after it`s

clear that you`ve done everything you possibly can for the United States of

America, I`m going to grant that request.  Now, if you would like to take a

recess now and talk to your attorneys, I`m happy to accommodate you in that

regard as well.  Would you like to do that?  The defendant, Michael Flynn,

yes, your honor. 

 

So at this – that point in the proceedings today, everybody knows all bets

are off, right?  Heading into today`s sentencing, Mike Flynn`s defense

lawyers and the prosecutors from the special counsel`s office, they had

both argued that Flynn should receive zero jail time.  But, of course,

everybody knows that it`s not a consensus thing.  It is ultimately up to

the judge. 

 

And here`s the judge, surprise, in open court, flat-out warning Flynn, I

cannot assure you that if you proceed today, you will not receive a

sentence of incarceration.  There are six different instances in today`s

sentencing hearing where the judge says to Flynn and his lawyers, are you

sure you really want me to sentence you today?  Are you sure you don`t want

to rethink that, today, really?  On the basis of what I`ve got in front of

me, you want me to sentence you today?  Are you sure?  Six times. 

 

The judge even tells Flynn at one point, hey, look, I`ve set up a private

room for you the talk to your lawyers today about whether you really,

really truly want me to sentence you today.  And Flynn and his lawyers, one

times, two times, three times, four times, five times keeps saying over and

over again, nope, judge, we`re good.  Let`s go ahead.  Until after the part

where the judge says to Flynn that he`s disgusted with and has disdain for

Flynn`s offense, and he tells Flynn how he sold out his country and how he

has undermined this flag over here, and he turns and points. 

 

And at that point, yes, Flynn decides, OK, actually, sir, I know I said no

five times, but I`m going take you up on that offer to maybe not go ahead

with you sentencing me today.  So Michael Flynn in the end doesn`t get

sentenced today.  Flynn`s lawyer finally says, quote, we would like to

request a continuance of sentencing, your honor. 

 

And so, Flynn`s cooperation with the government will continue and his case,

the sentencing in his case will be continued for another few months.  He`ll

be back presumably some time in March to go before this judge again and

talk it over again, maybe under circumstances that wouldn`t make the judge

explode in front of an open courtroom about how he feels about Mike Flynn`s

behavior. 

 

Now, the legal rationale from the judge today for not sentencing Mike Flynn

today, it`s a legal rationale basically from the judge in which he

persuaded Flynn and his lawyers to go along with, that was the idea that

maybe there is a little more that Flynn could do to help out the

prosecution here.  Remember, Mueller`s office, the special counsel`s office

recommended no jail time for Flynn, not because they didn`t say he

committed serious offenses.  They asserted to the court that in fact Mike

Flynn committed serious crimes, but they said that is outweighed by what a

great cooperator he has been, helping them with all these other cases. 

 

And the judge today was you know however good he`s been as a cooperator,

you`re going to need to add some more cooperation to that side of the scale

to balance out his crimes, because his climbs to my mind are unbelievably

bad.  So he`s definitely shocking Mike Flynn and his defense lawyers today. 

He also seems to sort of be shocking the prosecutors.  And here`s where we

got some of the news that was made today, made in open court. 

 

So this is the judge asking the prosecutors about whether they`re

absolutely sure that there is no more cooperation they might be able to

squeeze out of Mike Flynn.  The judge says, now I`d like to hear from the

government first, which means the prosecution.  Would you come forward,

counsel, to the microphone?  The judge says again, I`m not intentionally

trying to intrude on matters that should not be on the public record.  So

I`ll respect your resistance to answer a question, all right? 

 

But is Mr. Flynn still cooperating with and providing assistance to the

government? 

 

Prosecutor Brandon Van Grack: Your honor, it remains a possibility that

General Flynn is continuing to cooperate with the government at this time. 

The judge says all right, it`s a possibility?  Mr. Van Grack, yes, your

honor. 

 

The judge, more often than not the court will wait until this perpetrator

has finished.  This person has testified in the grand jury or pleas

entered.  There is nothing else he can do to help us.  But in this case,

there is still a likelihood that he could help, correct?  The prosecutor

then says, yes, but, quote, the defendant has provided the vast majority of

consideration that could be considered. 

 

So this is the judge being like, tell me he`s not at the end of

cooperating.  Tell me he`s got something else he can tell you.  He`s got

something else he can give you.  Because the cooperation he`s given you

thus far is what I`m supposed to balance against what I can see about his

bad behavior. 

 

If he is not done, you might want to wait to have him sentenced until after

he`s totally done, because he`s going to need every iota of his cooperation

to balance out how I view his crimes.  At this point, we get some news,

because the prosecutors from Mueller`s office, they bring up to the judge

unprompted the case that we learned about yesterday, and we had wondered if

this was going to come up in Flynn`s sentencing today. 

 

This is the case just unsealed yesterday where Flynn`s long-time business

partner was charged with multiple felonies.  This is somebody who was also

a Trump transition official.  He was the vice-chairman of Flynn`s

intelligence group, and help was charged yesterday with being part of a

scheme along with Mike Flynn, person A in that indictment, he`s charged

with being part of a scheme to basically operate secretly in this country

as paid foreign agents of the government of Turkey without ever disclosing

it. 

 

So, prosecutors from Mueller`s office bring that up to the judge today as

if that should help Flynn even more.  Look, he helped us get that

indictment too.  He`s been super helpful.  He is a great cooperator. 

 

But the judge immediately boomerangs that back at them by saying,

basically, yeah, I see how he helped you get that indictment filed, but

Flynn participated in the crime that is laid out in that indictment too.  I

mean, the judge says looking at the evidence of what Flynn himself did in

that alleged crime, you could have charged him for that.  You could have

locked him up for that too, right? 

 

Here`s how it goes.  Prosecutor Brandon Van Grack, quote, we`d like to

bring to the court`s attention that we just had an indictment unsealed in

the Eastern District of Virginia, charging Bijan Kian and Ekim Alptekin

with various violations.  And the defendant provided substantial assistance

to the attorneys in the Eastern District of Virginia in obtaining that

charging document. 

 

The judge: All right.  Could the defendant have been indicted in that

indictment?  Could he have been charged in that indictment? 

 

Prosecutor, Brandon Van Grack, and, your honor, the answer is yes.  The

judge says your answer is he could have been charged in that indictment? 

Mr. Van Grack, yes, your honor. 

 

They then talk about how many years in prison Mike Flynn could have

received just for that crime if he had been charged and convicted in that

case that was unsealed yesterday in Virginia.  The judge concludes that

discussion by saying, quote, the exposure for Flynn would have been grave

then.  Exposure to Mr. Flynn would have been significant had he been

indicted, meaning he could have potentially received many years in prison. 

Mr. Van Grack, the prosecutor, says: yes, your honor. 

 

So that is a remarkable moment.  That`s the prosecutors trying to help

Flynn out here.  They`re prosecuting Flynn, but they`re trying to help him

out.  They`re telling the judge, hey, he helped us out in this other case. 

And the judge in response makes the prosecutors spell out how guilty Flynn

might have been in that felony criminal case too. 

 

So things are not going well for Michael Flynn here.  You should also know

that the effort by Flynn and his lawyers over recent days to argue heading

into today`s sentencing that Flynn was kind of the victim here, that he

didn`t really mean to lie to the FBI.  The FBI somehow tricked him or

unfairly boxed him in to lying inadvertently.  They tried that a little bit

in the document that they submitted to the judge about Flynn`s sentencing

in advance of today`s hearing. 

 

That argument really did not go well today.  And that`s important even

beyond just the fate of Mike Flynn, because this has become a real cause

celebre, particularly in conservative media.  It was even trumpeted today

from the White House by White House spokeswoman Sarah Sanders who repeated

those claims, essentially, about Flynn in her words being ambushed by the

FBI, as if Flynn didn`t really lie, or if he did, it wasn`t his fault. 

 

It should be noted the judge in Flynn`s case just destroyed that argument

today.  He forced Flynn and Flynn`s lawyers to disavow any claim to that

argument and ultimately Flynn`s lawyer even apologized to the judge for

raising it at all. 

 

The judge, quote, do you believe the FBI had a legal obligation to warn Mr.

Flynn that lying to the FBI was a federal crime?  Mr. Kelner, the defense

lawyer: No, your honor.  The judge: Was it your contention that Mr. Flynn

was entrapped by the FBI?  Kelner, the defense lawyer: No, your honor. 

 

Do you believe Mr. Flynn`s rights were violated by the fact that he didn`t

have a lawyer present for the interview?  No, your honor.  Do you believe

his rights were violated by the fact he may have been dissuaded by not

having a lawyer present for the interview?  No, your honor. 

 

The judge says the sentencing memorandum also states that Mr. Flynn pled

guilty before certain revelations of certain FBI officials involved in the

interview were themselves being interviewed for misconduct.  Is it your

contention that any misconduct by any member of the FBI raises any degree

of doubt that Mr. Flynn intentionally lied to the FBI?  Kelner, the defense

attorney: No, your honor. 

 

The references that I mention that appear in your sentencing memorandum

raise some concerns on the part of the court.  And my question is how is

raising those contentions about the circumstances under which Mr. Flynn

lied consistent with his acceptance of responsibility? 

 

Later on in the proceedings, this is where Flynn`s lawyer essentially

decides to take responsibility for that himself and basically apologize to

the court for having raised it.  The judge says, quote, let – excuse me. 

The defense lawyer says the judge, let me make very clear, your honor, that

the decisions how to frame General Flynn`s sentencing memorandum made by

counsel, made by me, made by Mr. Anthony, the other defense counsel, those

decisions are entirely ours and really should not and do not diminish in

any way General Flynn`s acceptance of responsibility in this case. 

 

And the judge then sort of interrupts and says the point is well taken, but

you understand why I had to make the inquiry?  The defense attorney says: I

do.  The judge, because I`m thinking this sounds like a backpedaling on the

acceptance of responsibility. 

 

So that did not work.  Mike Flynn and his attorneys today disavow and

essentially apologize, for ever suggesting to the judge that Flynn wasn`t

really guilty, that the FBI was somehow the real culprit here.  I mean,

that alone cancels like half the shows on FOX News tonight. 

 

All right.  What are you going to talk about? 

 

But there`s also the part where everybody starts talking about Mike Flynn

and treason, and they can`t stop saying the word “treason” over and over

again.  That`s next, and there`s actually some news there that may not make

the judge very happy in this case. 

 

Stay with us.

 

(COMMERCIAL BREAK)

 

MADDOW:  Here`s the part about treason in today`s aborted sentencing

hearing for Trump national security adviser Mike Flynn.  So this all

happens right after the judge has just ripped a hole in Mike Flynn and said

out loud in open court that arguably, Mike Flynn, you sold out your

country.  You betrayed the flag that he turned and pointed to in the

courtroom. 

 

So the judge has just done that.  Flynn has just sat down, and then the

judge directs questions – starts directing questions to Mueller`s

prosecutors, and they are questions that appear to shock even the

prosecutors. 

 

The judge says, quote: Counsel, these are questions answers to which the

court is going to consider in attempting to determine an appropriate

sentence.  The conversation with the Russian ambassador in December, is

that a violation of law?  Prosecutor Brandon Van Grack, your honor.  The

judge, I hate to be so blunt.  Could he have been charged with a criminal

offense? 

 

Mr. Van Grack, let me answer two ways.  The judge, OK.  Van Grack: Which is

the facts could potentially support a violation of the Logan Act, which I

think is perhaps what the court is referring to.  The judge: is that the

act that no one has ever been prosecuted under?  Mr. Van Grack, that`s

right.  Which is why I want to be clear in terms of the government`s

consideration of potential charges against General Flynn.  That is not one

of the charges the government was considering. 

 

Again, the Logan Act is about private citizens conducting foreign policy

negotiations that undermine the sitting government of the United States. 

Here`s prosecutors saying they were not considering those kinds of charges

against Flynn. 

 

The judge says, OK, fair enough.  Good.  That`s the answer I wanted. 

 

And then the judge continues.  Were there other charges that could have

been brought against Mr. Flynn, other than FARA violations or false

statements?  I`m not minimizing either one of those.  Van Grack, the

prosecutor, says the government`s statement of offense represents a

representation of the unlawful activity that the government believes the

defendant committed in terms of beyond a reasonable doubt. 

 

The judge: All right.  I really don`t know the answer to this question, he

says.  But given the fact that the then president of the United States

imposed sanctions against Russia for interfering with federal elections in

this country, is there an opinion about the conduct of the defendant in the

following days that rises to the level of treasonous activity on his part? 

Van Grack, the prosecutor says: The government did not consider – I

shouldn`t say – I shouldn`t say did not consider, but in terms of the

evidence that the government had at the time, that was not something we

were considering in terms of charging the defendant. 

 

The judge says: All right, hypothetically, could he have been charged with

treason?  Van Grack, the prosecutor: Your honor, I want to be careful what

I represent.  The judge: Sure.  Van Grack: And not having that information

in front of me and because it`s such a serious question, I am hesitant to

answer it. 

 

Gulp. 

 

Now after a recess a few minutes later, the judge came back from the recess

and cautioned everyone that when he asked that question, could he be

charged with treason, he charged – even though he said that in court, he

came back and cautioned everybody in the courtroom that he wasn`t

suggesting that there should be treason charges against Mike Flynn.  He was

just wondering about the possibility of that.  The judge after the recess,

quote: I wasn`t suggesting he`s committed treason.  I wasn`t suggesting he

committed violations.  I was just curious as to whether or not he could

have been charged, and I gave a few examples. 

 

And, you know, there are a lot of conspiracy theorist out there.  I`m not

taking the elements of any of the uncharged offenses into consideration at

the time of sentencing.  I was just trying to determine the benefit of and

the generosity of the government in bestowing a benefit on Mr. Flynn.  That

was the reason why. 

 

Prosecutor Van Grack: Yes, your honor.  The judge: And I said early on,

don`t read too much into the questions I ask, but I`m not suggesting he

committed treason.  I just asked a legitimate question. 

 

Van Grack, the prosecutor: Yes, your honor.  And that affords us an

opportunity to clarify something on our end, which is with respect to

treason, I said I wanted to make sure I had the statute in front of me. 

The government has no reason to believe that the defendant committed

treason. 

 

Which means today was the day in U.S. history when the prosecutors had to

go and check the statute in writing at the judge`s suggestion so they could

return to court and aver that no, they`re not planning on charging the

president`s first national security adviser with treason, but thank you,

your honor, for the suggestion.  And you know what?  It`s actually pretty

good to have looked it up. 

 

Now there is one other thing that the judge walked back after that same

recess today.  You will recall that as Flynn stood before the judge today,

the judge made some pretty indelible, unforgettable statements about Flynn. 

Telling him not only did you lie to the FBI, but you lied to senior

officials.  You lied to the FBI about three different topics.  You made

those false statements while you were serving as the national security

adviser, the president of the United States` most senior national security

aide.  Two months later, again, you made false statements in multiple

documents filed pursuant to the Foreign Agent Registration Act. 

 

So, the judge says – the judge thunders in the courtroom, so, all along,

you were an unregistered agent of a foreign country while serving as the

national security adviser to the president of the United States.  The judge

continues, I mean, arguably, that undermines everything this flag over here

stands for, and he points at the flag.  Arguably, the judge says, you sold

your country out.  I am not hiding my disgust, my disdain for this criminal

offense. 

 

So the judge says that before the recess.  Obviously, a very dramatic

moment.  After the recess, the judge walked back, something specific about

the timing relative to that claim he is making about Mike Flynn.  This is

what the judge says, quote: This is directed to either government counsel

or defense counsel.  I made a statement about Mr. Flynn acting as a foreign

agent while serving in the White House.  I may have misspoken.  Does that

need to be corrected? 

 

Mr. Van Grack, the prosecutor: Yes, your honor, that would be correct,

which is that the conduct ended I believe in mid-November 2016. 

 

The judge: All right.  That`s what I thought.  And I felt terrible about

that.  I just want the record clear on that.  You agree with that, counsel? 

Mr. Kelner for the defense: yes, your honor. 

 

So the judge feels terrible, he says about saying that Mike Flynn was an

unregistered agent of a foreign power while he was serving as national

security adviser in the White House.  He confers with prosecutors to say, I

was mistaken on that, right?  Prosecutors, yes, his work as unregistered

foreign agent actually ended before Trump was sworn in.  It ended in the

transition in mid-November 2016 after the election. 

 

So, the implication of that assertion from the prosecutor and the judge`s

apology here is that Mike Flynn didn`t ever secretly work on behalf of a

foreign government once he was in the White House officially and sworn in

as national security adviser.  As a matter of fact, the judge might not

have needed to issue that apology.  And that`s next. 

 

(COMMERCIAL BREAK)

 

MADDOW:  Today in court in D.C., when the judge was just thundering at

Trump national security adviser Mike Flynn about the gravity of his crimes,

the judge said, so all along you were an unregistered agent of a foreign

country while serving as national security adviser to president of the

United States.  He said that and then the judge took it back, and the

prosecutor from Robert Mueller`s office supported the judge in taking it

back, saying in court today that Mike Flynn in fact didn`t keep working as

a secret foreign agent of Turkey after the inauguration when he was sworn

in as national security adviser.  Prosecutors said in court today that

Flynn stopped doing that work right after the election in mid-November

2016.  And that is in fact when Flynn filed paperwork with the government

saying that his contract with Turkey ended. 

 

But you know what?  It`s possible that the judge was right the first time

before he walked that back, at least if some NBC News reporting on this

subject is accurate.  In November 2017, NBC news reported on something that

happened in the Trump administration while Flynn was still national

security adviser before he was forced out, before he retroactively

registered for having been a paid agent of that foreign government. 

 

And in terms of their reporting, we know that what Flynn had been paid to

do secretly for the government of Turkey was try to get this guy Gulen, who

the Turkish government wanted extradited back to their country, the Turkish

government was paying to get the U.S. government to extradite him.  And

that`s what Flynn was working on when he was a paid agent of Turkey. 

 

Well, according to NBC`s reporting from November 2017, quote, former senior

law enforcement official said that in the weeks after Trump`s inauguration,

the FBI was in fact asked to conduct a new review of Turkey`s request to

extradite Gulen.  The FBI pushed back on the request because they provided

no new information that could incriminate Gulen following a review of the

case during the Obama administration.  It`s unclear whether the request to

investigate Gulen came from Mike Flynn or through typical diplomatic

channels at the State Department. 

 

So just think about that for a second.  In court today, the judge

apologized for suggesting that Mike Flynn might still have been acting as a

paid agent of Turkey while he was serving as national security adviser. 

What he was paid to do was to get the U.S. to extradite this guy Gulen back

to Turkey, and in fact, while Gulen was still serving as national security

adviser, somebody in the Trump administration asked the Justice Department

to please look into doing that, please look into extraditing that guy. 

 

And so, I don`t know if the judge need to apologize today, but bottom line

in February 2017, before Mike Flynn was fired, somebody in the Trump

administration tried to deliver on what Mike Flynn had secretly been paid

to deliver as an agent of the Turkish government. 

 

Joining us now is one of the reporters who first uncovered that, who has

been chasing that ever since.  Julia Ainsley, NBC News national security

and justice reporter back with us tonight. 

 

Julia, thank you. 

 

JULIA AINSLEY, NBC NEWS NATIONAL SECURITY AND JUSTICE REPORTER:  Thanks,

Rachel. 

 

MADDOW:  So, let me just ask if the way I summed that up comports with your

understanding of both the Flynn case now and your earlier reporting. 

 

AINSLEY:  Yes, that`s right.  Let`s start with a caveat here.  I mean, it

is possible this didn`t come from the White House.  As we pointed out, it

could have come through the State Department.  It eventually has to get to

the FBI and DOJ.  They`re the ones who have to handle this. 

 

It also is pretty typical at the beginning of a new administration that

they may ask to reexamine that.  But then what I do want to point out is

when we talk to former Obama administration officials, they say they had in

meetings with Erdogan himself who would come to the White House and make

the case that Gulen needed to be extradited.  This is something that

Erdogan saw as such a priority because he sees Gulen as his political foe,

and he blames him for that coup in July of 2016, that he didn`t do this

through diplomats.  He did this at the highest levels. 

 

So, it would be kind of hard to believe that in the next administration he

wouldn`t seek that same top level conversation.  But then again, we don`t

know for sure whether or not that happened at the White House.  But if it

did, of course that is problematic. 

 

Another thing I want to point out, apart from what Michael Flynn eventually

disclosed on his FARA reports.  That took a little while.  The reports

weren`t completely accurate in the beginning as the judge pointed out

today, he still had meetings that didn`t have to do with his group with

Inovo, that group run by Ekim Alptekin. 

 

He had two meeting in New York, one in September of 2016, and one in

December of 2016.  That would be during the transition, and my colleague

Carol Lee and I have reported on that as well, where turkey continued to

press for Gulen to be leaving the United States at any cost.  They even

suggested a kidnapping.  Now, it`s not clear how much Michael Flynn agreed

to this, but I do think that these are worthwhile inquiries.  I mean,

that`s why I`ve been inquiring about it for such a long time.  Why did this

request come up? 

 

And yes, there was pushback.  People in the FBI said look, Turkey sent over

boxes and boxes of these materials under the Obama administration.  We went

through everything, and we didn`t find anything new.  And without new

material, we`re not going to have a different conclusion.  We already

reached that conclusion.  And with this new request that came at the

beginning of the Trump administration, they weren`t providing new

information.  So the result was going to be the same. 

 

MADDOW:  So – and to be clear, when the prosecutor today asserted in court

that his work, Flynn`s work for Turkey ended in mid-November, that does

match what Flynn filed in terms of saying that his contract ended as this

contract for which he was previously foreign unregistered agent.  It ended

in mid-November. 

 

But as you point out, after he was paid hundreds of thousands of dollars by

the government of Turkey and passed when he said that contract was over, we

at least know during the transition in mid-December, he was still taking

meetings with Turkey, talking about trying to deliver to them the thing

that they had been paying him to deliver, including as you mentioned, the

possibility that they might actually kidnap this guy in order to get it

done. 

 

AINSLEY:  Yes.  That`s when things get so squishy during a transition,

particularly in this administration when there are so many people who had

business ties to governor governments and foreign countries before they

came in.  So when do you delineate between your business and you did before

you became part this administration and your work trying to fuel U.S.

foreign policy and get a feeling of who your partners will be on a world

stage before you come into your position at the White House. 

 

Jared Kushner has had some of these same questions raised about his

meetings.  Michael Flynn could have been – and he did as it shows in those

302s that we saw yesterday, the interviews with the FBI agents, he did

reach out to multiple foreign officials.  It just seems that his contacts

with Russia and with Turkey were a little cozier than they were with almost

anyone else. 

 

And you point out that money.  You disclose he was paid $600,000.  But as

we reported, I think he was offered millions.  We reported he was offered

millions if he was able to actually come through on this kidnapping thing. 

 

Now again, not clear that he agreed to that or what really happened there,

but these were all propositions.  So whether or not the judge just got the

date wrong could be, or it could be that he knows more and thinks that he

continued to be influenced while he was in the White House.  And he made

that case today. 

 

MADDOW:  Yes.  And once you`ve taken hundreds of thousands of dollars

secretly from a foreign government, it does tend to cast a pall over your

subsequent interactions pursuing that country`s aims. 

 

Julia Ainsley, reporter for NBC News, thank you very much for being with

us. 

 

AINSLEY:  Thanks, Rachel. 

 

MADDOW:  Much appreciated. 

 

All right.  Lots more to come.  Stay with us.

 

(COMMERCIAL BREAK)

 

MADDOW:  Joining us now is Chuck Rosenberg.  He is a former U.S. attorney

in the Eastern District of Virginia.  He`s a former senior FBI and Justice

Department official. 

 

Chuck, thank you so much for coming in to talk to me about this. 

 

CHUCK ROSENBERG, FORMER U.S. ATTORNEY:  My pleasure, Rachel. 

 

MADDOW:  I obviously like everybody else watching this case were struck by

the drama in the courtroom today with what he we thought might have been a

sleepy affair.  Prosecutors and defense lawyers heading into today were

both essentially asking for no jail time for Mike Flynn.  It didn`t go –

it didn`t roll smoothly downhill at all, and it veered off in a very

unexpected direction. 

 

Just top line, what did you think about the way this went today and the

judge`s remarks? 

 

ROSENBERG:  I thought the judge`s remarks were intemperate.  In my

experience, the best judges, like the best umpires in baseball fade into

the background.  They make calls, they get most right.  They get a few

wrong, but you don`t really see them playing the game. 

 

And that`s what I thought Judge Sullivan did today.  He brought up some

things that I thought were simply intemperate.  It sounded more like he

wanted to be a prosecutor than a judge, questioning the charging strategy,

holding the prosecutors to account for why he was getting the deal he got,

whether cooperation was finished, whether he should have been charged with

treason or a Logan Act violation. 

 

Look, the judge is the boss.  Any judge in his or her courtroom is the

boss, and they get to decide what the sentence was, but I thought some of

the remarks were intemperate. 

 

MADDOW:  And in terms of them being intemperate, that goes to his

temperament as a judge in this what we think of appropriate tone in a

judicial context.  But are you suggesting that the judge betrayed an

improper bias that might actually prejudice the question whether he should

be the judge in this case? 

 

ROSENBERG:  I think he gave the defense an argument.  I`m not sure they`re

going to take him up on it, but he gave them an argument that perhaps he

shouldn`t be the sentencing judge.  Now, that`s a risky strategy.  They

would have to ask if he be recused.  If he said no, they couldn`t change

it, they`re really stuck, aren`t they? 

 

I think what`s going to happen going forward is the prosecutors will put

together a more fulsome, more compelling case for General Flynn`s

cooperation, I`m guessing.  They`ll file that at some point so the judge

will have more of a road map. 

 

MADDOW:  In terms of the way this was resolved today, obviously, we saw the

judge quite sharply, essentially rebuke the defense for having – and

rebuked Flynn for having suggested that his lies to the FBI were somehow

the product of entrapment or he was ambushed or boxed in.  But we also saw

the judge propose a resolution to this matter effectively, in which Flynn

has to go back and offer more in terms of Cooperation in order to balance

the scales more in his own favor before he`s sentenced. 

 

What did you make of those? 

 

ROSENBERG:  So, I thought the judge was actually right to rebuke defense

counsel for positing, all right, that Flynn was entrapped, that Flynn was

set up, that Flynn didn`t know what he was doing.  That struck me as a

defense argument as a bridge too far, Rachel. 

 

That said, the government decided that General Flynn`s cooperation was

finished.  They were the ones who met with him 19 times.  They were

comfortable making that substantial assistance downward departure motion. 

 

When Mr. Van Grack was asked, is there anything more you can do?  The

answer was, well, yes, you know, sort of, we`ll try, we`ll see what we can

do.  But the real answer, if you`re reading between the lines, was, no,

we`re ready to go to sentencing.  We have what we need, your honor. 

 

And so, look, if I`m going to criticize the judge for being intemperate, I

want to praise the judge for calling out what I thought were some defense

misrepresentations about the nature of that interview.  That was deeply

unfortunate, and I think fuelled a fire in certain quarters of the

political debate that were way off the mark. 

 

MADDOW:  And I think that can`t have been unintentional.  Obviously you`re

going to know how that`s going to resonate with the president and broadly

with the White House.  The White House spokesperson saying today from the

podium that Flynn was ambushed by the FBI, and that`s, of course, become a

real rallying cry in conservative media.  Seeing them deflate today upon

Flynn having to admit, yes, I did lie to the FBI and I knew what I was

doing, it was remarkable. 

 

ROSENBERG:  It`s remarkable, and the deeply unfortunately thing, as you

pointed out, is General Flynn is saddled with that.  Even if it was his

lawyer`s idea, even if he didn`t understand the context of what they were

doing, you know, he is saddled with that. 

 

He has to live that down at his actual sentencing.  He has to do something. 

Maybe with the help of the government, to show that his cooperation was

fulsome and his acceptance of responsibility was complete. 

 

MADDOW:  Chuck Rosenberg, former U.S. attorney in the Eastern District of

Virginia, former senior FBI and Justice Department official – thank you

for helping us understand this today.  What a dramatic day, which always

makes me want to have your incredibly sober take on it, sir. 

 

ROSENBERG:  You`re very kind.  Thank you, Rachel. 

 

MADDOW:  Thanks a lot.

 

All right.  We`ll be right back.  Stay with us.

 

(COMMERCIAL BREAK)

 

MADDOW:  I lied.  I pulled a fast one.  I just said good night to Chuck

Rosenberg, but as you were getting up, I didn`t ask you about the last

thing I needed to ask you about. 

 

We have been watching this mystery case in the appeals court in D.C. that

we knew related to the Mueller investigation, but we didn`t know what it

was about.  We surmised it might be somebody resisting a subpoena from the

grand jury that`s working with Mueller.  Today, we got a ruling in that

case.  It does seem still like – sort of like a mystery. 

 

What do you make of this ruling? 

 

ROSENBERG:  We know what it`s not, right?  We had surmised it could be

executive privilege questions, subpoena of an individual in the Trump White

House.  It seems to be more mundane.  It seems to be a subpoena, maybe to a

bank or some state-owned entity –

 

MADDOW:  Some sort of corporation that`s owned by country A. 

 

ROSENBERG:  That`s right.  But because it`s a grand jury matter, it still

remains under seal.  The court told us about as much as it could. 

Interestingly, Rachel, they told us in their short opinion that there`s

more to come from the court.  They are going to tell us more in a

subsequent opinion. 

 

MADDOW:  But they do seem to be sort of giving deference to rushing this

case as fast as they can. 

 

ROSENBERG:  Which I think is good.  It`s good for prosecutors.  It lets

them move on to the next phase of their investigation. 

 

MADDOW:  OK.  Thank you, Chuck.  Appreciate it. 

 

ROSENBERG:  I can really go now? 

 

MADDOW:  Well, I don`t know.  See if he`s here when we come

 

(COMMERCIAL BREAK)

 

MADDOW:  Thanks for being with us for the show tonight.  We will see you

again tomorrow. 

 

Now, it`s time for “THE LAST WORD WITH LAWRENCE O`DONNELL”. 

 

Good evening, Lawrence. 

 

                                                                                               

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