Show: THE RACHEL MADDOW SHOW 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 truth.
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 felonies.
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 administration.
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 power.
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 understand.
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.
(BEGIN VIDEO CLIP)
REINCE PRIEBUS, FORMER REPUBLICAN NATIONAL COMMITTEE CHAIR: But I have 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.
(END VIDEO CLIP)
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.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: What`s the level of concern within your national security apparatus about General Flynn`s son?
MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES: Well, 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.
UNIDENTIFIED MALE: Not at all?
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 meetings.
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.
(END VIDEO CLIP)
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 now.
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.
(COMMERCIAL BREAK)
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 guidelines.
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 something.
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 interview.
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 service.
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.
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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 Alabama.
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.
JOYCE VANCE, FORMER U.S. ATTORNEY IN ALABAMA: A little bit of speed reading.
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 time.
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 happening.
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.
MADDOW: Oh, OK.
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.
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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.
SHANE HARRIS, NATIONAL SECURITY REPORTER, WASHINGTON POST (via telephone): 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 what.
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.
Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL".
Good evening, Lawrence.
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