Wednesday, May 24, 2017

The Fifth. Why Michael Flynn's Lawyer Properly Advised Him to Exercise His 5th Amendment Rights in Response to Congressional Subpoena.

No one should be in favor of overzealous prosecutions. We should also let all people exercise their constitutional rights. Even when we disagree with their politics or actions. The case of Ret. Lt. Gen. Flynn is no different. If anything, we need to be even more careful since this is a high profile case and is related to one of the most important criminal investigations in recent U.S. history. 

If I were Michael Flynn's lawyer and he were subpoenaed to Congress, what would I do? Have him do exactly what was done by his lawyer - exercise his 5th Amendment right against self-incrimination. Doing anything else would be legal malpractice in my view unless there were a solid immunity agreement. Even the request for documents is a problem since there are testimonial issues in identifying and producing documents that relate to his 5th Amendment rights.  

First, don't let a client testify or be interviewed when there's a criminal investigation. Simple. Don't care if he looks guilty. Gotta do it. If you don't it's malpractice or folly. You cannot care about the "optics" or that "someone will look guilty." Clients have a hard time understanding it but it is critical to not give into that type of thinking. I would lay down in the street outside my office in downtown Los Angeles before I'd let a client testify under these circumstances.

I would have Mr. Flynn exercise his 5th Amendment rights for numerous reasons. Let us just use his public FARA filings as one basis since we can review them.  To look at the issue, just take a look at the Mr. Flynn's Supplemental Foreign Agent Registration Act (FARA) filings on 3/7/17. They were signed by him electronically under penalty of perjury. Read them if you like [here's the FARA document search link], type in Flynn, click and see what you think. 

No Russia lobbying or Russian payments/contacts information is listed in these forms but there is a lot of information about work done for Inovo BV (owned by Ekim Alptekin who has close ties to the Turkish government) regarding Turkish opponent Fethullah Gülen who lived in the U.S. and lobbying that could benefit a foreign government, Turkey. This included a meeting on September 19 with Turkish government officials (Erdogen son-in-law and Foreign Minister) where extraditing Gülen was allegedly discussed. The filings also discuss an article Mr. Flynn had published on election day about supporting Turkey policies and discussing Gulen where he did not disclose that he was paid by an organization related to Turkey or Turkish interests. 

For example, Flynn claims in his filings the contract ended on 11/8/16 (election day) but his own filings could arguably show work continued and the Flynn Group made payments to third parties until December 2016. How could work "end" on 11/8/16 when the Op-Ed piece ran on 11/8? This is why the government is issuing search warrants and/or subpoenas for records of people who did business with the Flynn Group. They will find out what these individuals "drafted" or "researched," what emails were exchanged or what services were performed. The government may have records or interviews of third parties already and are just laying a trap for Flynn hoping to catch him in a false statement.

There are many witnesses involved and without knowing what they have said or produced, it would be incompetence to allow Flynn to testify. Even an honest person testifying truthfully will not answer the same question the same way in different rounds of questioning. In addition, there is no limit on the subject matter from members of Congress and it will be video recorded to catch Flynn's demeanor, facial expressions and body language. 

One tricky subject may be payments Flynn Group made to former military and former FBI. For example, payments were made to retired Rear Admiral Paul Becker (Becker T3 Group) and Flynn may be asked what he told Becker about his reporting requirements or whether Becker knew the work could benefit the Turkish government. There may also be the issue of what work the Rear Admiral performed for this foreign client for Flynn Group.   

Also while former CIA James Woolsey did not appear to receive payments according to the FARA filings, he was on Flynn's website and he attended the meeting on 9/19/16 with Flynn and Turkish government officials (Erdogen's son-in-law and foreign minister) who advocated the kidnapping and extradition of Fethullah Gülen - enemy of Erdogen who lives in U.S. 

Flynn Group also paid Operational Behavioral Sciences which was run by two retired FBI agents Neer and Orton). We must expect that all the individuals who were paid will be interviewed by the government and it is too early for Flynn to testify or be interviewed when he is facing this investigation and the lawyer does not know what others will say about their work. Any competent lawyer needs to assess all the facts and legal issues before his or her client testifies. That may involve doing one's own investigation.

Flynn's "explanation" of his work for the foreign/Turkish linked company, why he didn't register for FARA until 7 months later and his "explanation" of his Op-Ed piece on Turkey would all be used to cross-examine him.  Any testimony about the FARA filings could be the basis for criminal charges of 18 USC Section 1001 (making false statements) and conspiracy to obstruct (18 USC Section 1512). And this has nothing to do with Russia hacking or speeches in Moscow, but Mr. Flynn's consulting business. Flynn is former military intelligence so one would expect him to clear any business and payments to see if there are government ties or how his work is being funded.

Criminal prosecutions are rare under FARA, but why tempt fate? Why help them build a case against you with your own words? FARA is a compliance based statutory scheme. However, when Flynn filed (with assistance of counsel) it was late and the filings are missing a significant amount of detail required (list of all contacts with government officials and more detailed expenses) and the explanations for the work done and not filing may appear to be self-serving and may not withstand cross-examination.   

So at a minimum, without thinking about his calls to Russian officials while he was a private citizen before Trump took office, we have investigations into failure to register as a foreign agent in a timely manner, possible false or misleading disclosures when he did file, and failure to disclose payments or contacts to the government before the FARA filing. These failures can be viewed as "obstruction" to prevent our government and intelligence from finding out about them. 

Second, w
e know there's a separate investigation due to his failure to seek approval before doing any work paid by foreign sources and failure to disclose payments from foreign sources (Russia & Turkey) as a retired Lt. General, with the highest security clearance and who was previously in charge of intelligence divisions, getting a pension (emoluments legal issues). 

It has also been reported that in January 2017, Flynn renewed his security clearance and had to report foreign contacts and payments. There will also be the issue of what did he tell the FBI agents who handled his security clearance apart from written statements. There will also be the issue of what he disclosed to the Trump transition team about his contacts with foreign officials during the transition? Any misleading or incomplete statements to any of them could create possible obstruction issues.

Third, there are possible questions into campaign work and alleged FEC violations. Flynn spoke at rallies for Trump and was an unpaid consultant on foreign policy. It may be investigated whether Flynn used funds from the foreign client to pay Trump campaign expenses or to benefit the campaign. The Turkish owner of Inovo BV Ekim Alpetkin was and is a vocal Trump supporter.  

For example, one campaign link is that the Flynn Group paid former FBI agent Brian McCauley who claimed after he was hired by Flynn Group that the State Dept pressured him to "declassify" a Clinton email. The first payment was made in October after McCauley went to the press and McCauley was paid $28,000 in total. Now if this was payment for "campaign" work, Flynn Group could be accused of violating federal campaign laws in paying McCauley since it was from a foreign source. There were also payments to Flynn's son for administrative expenses and these may be reviewed to see if they were reimbursements for expenses relating to the Trump campaign.

In addition, Flynn was required to list his own donations to the Trump campaign including "in-kind donations" or things like paying for travel expenses to speak at rallies. There were no donations listed on FARA filings relating to Flynn or his son and perhaps there are none but this will be explored as well. If there was not much actual "work" or time spent on the $600,000 research project, it could be argued that some of Inovo BV's payment to Flynn Group was a hidden campaign contribution or windfall to allow Flynn to work full-time on the Trump campaign.     

In sum, Flynn's issues with Inovo BV are currently as big a problem (or bigger) problem than him speaking at an RT event (which was out in the open). This is serious. Flynn knows his responsibilities to report. He knows that the forms he completes have to be truthful and complete. The omission or falsification of any information on the FARA forms or his security questionnaires are grounds for possible criminal charges. And Flynn was apparently warned to seek clearance before getting payments from any foreign government or company. That would be used to show "intent" or wilful disregard.

Ret. Lt. Gen. Flynn's behavior from 2015 to March 2017 will be under the microscope. He should not testify before Congress or be interviewed by anyone unless he receives full immunity or makes a deal for cooperation. As an attorney, I will not criticize anyone exercising their Fifth Amendment or impugn their "guilt" based on it.

Posted by Tracy Green, Esq.


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