Cat's Paw

Must read: The long list of people who thought Flynn’s lies were material https://t.co/SItqAnL1V6

— Nicolle Wallace (@NicolleDWallace) May 10, 2020

The DOJ has filed a motion with Judge Sullivan claiming Flynn's lies, to which he plead guilty, were not "material." That is a requirement of the statute.  However, it's worth noting who thought Flynn's lies were "material," before the DOJ decided they were not.

President Trump thought Flynn’s lies were material. He fired Flynn in 2017 for lying to Vice President Pence and tweeted that year that he “had to fire General Flynn because he lied to the Vice President and the FBI.” White House chief of staff Reince Priebus, according to special counsel Robert S. Mueller III’s report, recalled that Trump was angry at Flynn for lying about the conversation he had with the Russian diplomat.

Vice President Pence thought Flynn’s lies were material, stating he knew at the time Flynn was fired that Flynn “lied to me” and that “the president made the right decision [to fire] him.” It seems that Flynn’s lies were material to Trump and Pence.

Senior Justice Department officials, including acting attorney general Sally Yates and National Security Division Chief Mary McCord, thought Flynn’s lies were material, because, as the Mueller report noted, they were concerned it “[created] a compromise situation for Flynn because … the Russian government could prove Flynn lied.” That, as the report further noted, afforded leverage over Flynn such that Russia “could use that derogatory information to compromise [Flynn].”
Federal prosecutors detailed to the Special Counsel’s Office thought Flynn’s lies were material. They signed their names to court documents that outlined the facts that supported his guilty plea, including the material false statements Flynn made. That six-page statement of the offense is part of the public record.

Federal District Judge Rudolph Contreras thought Flynn’s lies were material. Flynn pleaded guilty to the charge of making a material false statement in his courtroom in December 2017. A judge will accept a guilty plea in federal court only if there is a factual basis for it and only if all the elements of the offense are proved. If the judge did not believe the lies were material, he presumably would not have accepted the plea agreement.

Federal District Judge Emmet Sullivan thought Flynn’s lies were material. Flynn restated his guilty plea in front of Sullivan in December 2018, after the case was transferred to his court. Further, in December 2019, Sullivan noted in a written order that Flynn’s false statements to the FBI were clearly material.

Flynn’s two original experienced defense attorneys thought Flynn’s lies were material. They signed their names to a plea document, noting that they “concur in [Flynn’s] desire to adopt and stipulate to this Statement of the Offense as true and accurate.”

Michael Flynn thought his lies were material. He signed his name to a plea agreement “knowingly and voluntarily and because [he was] in fact, guilty of the crime charged.” Flynn stipulated to a filed “Statement of the Offense” and declared “under penalty of perjury that it is true and correct.” That statement — to which Flynn agreed — noted that Flynn “made materially false statements and omissions during an interview with the [FBI] on January 24, 2017” and then spelled out, in detail, those false material statements. Flynn pleaded guilty in front of one federal judge, maintained his guilty plea in front of a second federal judge and, while under oath, twice admitted that he lied and that his lies were material.

Yes, that list includes the judge who will hear the DOJ's motion to dismiss.  He has to agree with the DOJ that Flynn's lies were not material, after all.  This would be based on the notes and redacted memos that have become public recently.  However, that information undermines the counterintelligence investigation of Flynn only in the minds of armchair spies and TV credentialed attorneys.  Sullivan won't be swayed by that argument.  Nor is he likely to declare the scales have fallen from his eyes and where the DOJ misrpresented this case to him, he now sees they were lying then, but telling the truth now.

Becuase that's what it will take.  That's precisely the argument the DOJ is making:  we were corrupt then, but we've cleaned house and fixed all that.  Ya gotta believe us!

Barr never seriously expected this motion to work.  He's using the court as a cat's paw for Trump to pardon Flynn.  Whether the court recognizes that, or not, is yet to be determined.