Teri Kanefield+ Your Authors @Teri_Kanefield Author, lawyer (UC Berkeley) My threads are here: terikanefield-blog.com/ NBC News Opinion contributor Impeachment notes: impeachment-trump.com/ Dec. 12, 2018 4 min read + Your Authors

(Text) Flynn sentencing memo

The memo is all about why Flynn deserves a light sentence (probation & community service) citing his impressive army service, awards,
his enormous contributions to the Mueller probe.

A few interesting tidbits.

1/ Flynn asserts a mitigating factor the judge should consider: The FBI officers failed to tell him that lying to the FBI was a crime before they questioned him.

That probably makes you think of the Miranda warnings, right?
Except here's the thing about Miranda warnings. . .

2/ As Flynn’s lawyers know, Miranda warnings are only required if a person is in custody. Flynn wasn’t.

If you’re free to walk away, no need for Miranda.
So this was an FBI decision, not legal error.

3/ Also failure to give Miranda warnings doesn’t mean the suspect escapes punishment.

Failure to give Miranda warnings means that what the suspect says can't be used against him in court.
But nothing prevents the suspect from voluntarily pleading guilty.

4/Flynn's lawyers have permission to tells us that the FBI agents decided NOT to give Flynn with a warning. They wanted him at ease.

Why did they do that?

The memo doesn’t say. But there are two possibilities.

#1: They wanted to find out if he was compromised by the Russians.

5/ They already knew what he said to the Russians on the phone.

If he lied when asked about it, that would mean the Russians knew something that Flynn didn’t want known, so he was compromised.

Flynn was at ease. He treated the FBI officers as allies. And he lied.

6/ So they knew the Russians had something on him.

#2: The officers were out to entrap Flynn (This is the Deep State Theory: the government is out to get Trump)

Recall: the officers had no legal duty to warn Flynn, so they did nothing wrong, so Deep State Theory makes no sense.

6/ So Explanation #2 makes no sense (but Deep State theory never does, right?)

Okay, so why did the defense bring up the fact that the officers deliberately avoided giving Flynn warnings?

It seems to me Flynn’s lawyers were doing what defense lawyers do:

8/ They’re scratching for anything to set their client apart and give a reason for leniency.

Papadopolous and Alex van der Zwaan cooperated but got jail time.
Both were warned not to lie.

Flynn OTOH wasn’t warned.
(Lawyers make distinctions, also known as hair-splitting)

9/ Of course Flynn knew lying to the FBI was a crime. That's not the point.

The defense is trying to persuade the judge that Flynn is a good guy: if Flynn had any idea at all that the FBI was on to him and not actually his allies, he would have spilled his heart immediately.

10/ The proof is how quickly Flynn flipped when he knew that the FBI was on to him.
The comment that he treated the FBI as "allies" was odd.

Maybe I'm reading too much into this, but perhaps Flynn thought the agents agreed that Russians were better than Democrats, hence Allies.

11/ Now we come to the most startling detail: The memo includes the names of 2 of 3 FBI officers who questioned Flynn:

Andrew McCabe
and Peter Strzok

Remember them? Trump later went after both with a vengeance and got them fired.

12/ My first thought reading this memo: Did Trump know that McCabe and Ztrzok were among the officers who questioned Flynn?
Was that one reason he went after them?

My next thought was: Why on earth did the defense mention these two names?

13/ My reading of the memo was that the FBI officers were doing their jobs and trying to find out if the president’s National Security Advisor was compromised by a foreign country. (Not in the memo, but my reading of events: Trump went after them for doing their jobs.)

14/ The Memo says that Flynn’s respect for the law was so great that Flynn remained steadfast in his decision to cooperate, even when “circumstances later came to light that prompted extensive debate” about McCabe and Strzok.

15/ Doesn’t that sound like Flynn (or his lawyers) still partly believe in the Deep State theory?

That was one odd detail.

The bulk of the memo was about the enormous contribution Flynn made to the Mueller investigation.
Lots of meetings, tons of hours of spilling all. . .

16/ Flynn assisted in massive production of thousands of documents, even before he was asked.

Another tantalizing detail: He provided “substantial assistance” to the OSC or “attorneys from other DOJ offices.”

There's that hint again of other secret criminal investigations.

17/ Having been a defense lawyer, I'm going to speak up on behalf of them.
Sometimes defense lawyers make lame arguments. I'll probably get into trouble if I talk about the "laugh test."

Prosecutors have a different job. They represent the people.
Defense lawyers . . .

18/ . . . represent a client. They have a duty to the client. (They also have a duty to the court, so no lying). Anything a defense lawyer thinks might help the client, they need to say.
I've been in situations where I was scraping for a defense. It's a hard job . . .

. . . and sometimes there is something the client wants said. If the defense lawyer doesn't agree, that can get sticky.

You can follow @Teri_Kanefield.


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