Those of us old enough to remember the controversies of the George W. Bush administration just might remember a particular word – a word that symbolized the excitement of the Netroots Left for the moment that would finally reveal the true corruption of the Bush administration. That word was “Fitzmas,” the day when special prosecutor Patrick Fitzgerald would “frog-march” the likes of Karl Rove and even Dick Cheney out of the White House in handcuffs.
Except Fitzmas never really came. Yes, Fitzgerald prosecuted Scooter Libby for perjury and obstruction of justice, but that was small potatoes. The gap between expectations and reality was vast. It turns out that it’s very possible for a political movement to get lost in its own spin.
I thought of Fitzmas yesterday, when the high hopes of talk radio and Fox News for the would-be martyr, Michael Flynn, turned to ashes and dust in a D.C. courthouse. Rather than blowing the lid off alleged FBI misconduct and special-counsel overreach in the prosecution (persecution?) of General Flynn, the judge blew his stack at the general.
Judge Emmett Sullivan unleashed an angry — and, quite honestly, over-the-top and inappropriate — tirade after Flynn accused the FBI of misconduct in his sentencing brief but backed away from its claims in open court. It was a brief that read well in conservative media but was singularly inappropriate to file in a court with a judge who has more complete command of the facts of the case than the talking heads on television or the Twitter lawyers online.
Two excerpts from the sentencing hearing are key to understanding what happened. Here’s the first, the dialogue is between Judge Sullivan and Flynn’s legal counsel:
This sorta sums up today's events at the Flynn hearing in a nutshell. pic.twitter.com/ckFlyviNnh
— Adam Goldman (@adamgoldmanNYT) December 18, 2018
All that spin you’ve been hearing about perjury traps? Those arguments you heard that the FBI mistreated Flynn and duped him into lying? When it was time to put up or shut up — when it was time to be held accountable rather than please the crowd — Flynn’s team failed.
And why did they fail? Because they knew more than you knew. They knew that Flynn was more vulnerable than any of us thought. How do we now know that? Because the judge made it plain that he could have been indicted for more crimes, and only his cooperation had prevented further legal jeopardy:
Prosecutor tells judge that Flynn could have been indicted in secret Turkey lobbying effort. Two of Mr. Flynn's former business associates were just charged in that scheme. pic.twitter.com/YpUeoo0uRq
— Adam Goldman (@adamgoldmanNYT) December 19, 2018
Judge Sullivan is referring to last week’s indictments of Bijan Kian and Ekim Alptekin. According to prosecutors, Kian and Alptekin “conspired covertly and unlawfully to influence U.S. politicians and public opinion concerning a Turkish citizen living in the United States whose extradition was then being sought by the Government of Turkey.” The defendants allegedly, “sought to discredit and delegitimize the Turkish citizen in the eyes of politicians and the public, and ultimately to secure the Turkish citizen’s extradition.”
And who did Kian and Alptekin work with as part of this scheme? Michael Flynn. Here’s a summary of the case by Natasha Bertrand in The Atlantic:
It began with a meeting in New York in September 2016 between the future national-security adviser Michael Flynn and Turkish government officials, in which they discussed kidnapping an exiled cleric and turning him over to Ankara. A curious op-ed followed, in which Flynn alleged that the cleric, Fethullah Gulen, led a “dangerous sleeper terror network” and needed to be extradited. U.S. prosecutors soon took notice, and Flynn and two of his business associates were ultimately revealed to have been on a foreign government’s payroll in 2016, lobbying against the interests of the United States—and to have tried to cover it up when they got caught.
Consider the yawning gap between the Flynn spin and the Flynn case. The spin said he was “only” guilty of lying to the FBI, and he was trapped into that crime. The reality is that he lied to the FBI about his contacts with Russia, lied about his relationship with Turkey, and is now an unindicted participant in the strange influence operation outlined above — and that’s just based on our current knowledge. There is a considerable amount of cooperation still ongoing. There is much we still don’t know.
Yes, it was way over the line for the judge to raise the question of treason. But it was not wrong for Sullivan to disclose his “disgust” and his “disdain” for Flynn’s crimes. A three-star general knows better.
This was not supposed to happen. Yesterday was supposed to be the moment of the special counsel’s reckoning, not Flynn’s. There were signs last week that the judge might be “checking” Robert Mueller. After all, he ordered the release of FBI summaries — called a “302” — of its Michael Flynn interview. As the Wall Street Journal’s Kimberly Strassel wrote:
Judges have the ability to reject plea deals and require a prosecutor to make a case at trial. The criminal-justice system isn’t only about holding defendants accountable; trials also provide oversight of investigators and their tactics. And judges are not obliged to follow prosecutors’ sentencing recommendations.
She also called the judge a “no-nonsense straight shooter.” True enough, and yesterday that straight shooter held Flynn’s team to account. The straight shooter gave him the choice to fight or fold. That Flynn chose the latter course tells us something important about the hundreds of thousands of words of public defense on his behalf.
We do not know the ultimate outcome of the Mueller investigation. And yes, there are many people on the Left who are deep into their own spin — dreaming dreams of unveiling a vast criminal conspiracy with Trump the Machiavelli in the middle. But yesterday’s events should serve as a wake-up call for Trump’s base.
Beware of what you don’t know. The long-awaited days of reckoning may not bring the outcome you desire.