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Why I Don’t Buy the Vice President’s ‘Sergeant Schultz Defense’

By Ernest A. Canning

Faced with his own inept inability to control the antics of his American prisoners, the only defense for bumbling Luftwaffe POW camp guard Sergeant Schultz was to pretend he had no knowledge of events. Confronted with what he saw and was told in this classic Hogan’s Heroes clip, Schultz proclaims: “I see nothing! I was not here! I did not even get up this morning!”

Last Thursday, we witnessed a version of the Sergeant Schultz defense. But it wasn’t for laughs. It came from a source said to be “close to the [Trump] administration”. According to an NBC News report (later echoed by a number of other outlets), the source claimed that “Vice President Mike Pence has been kept in the dark about former National Security Adviser Mike Flynn’s alleged wrongdoing”…

Earlier this year, Pence said he was not made aware of Flynn’s discussions with Russian officials until 15 days after Trump and the White House were notified.

The source close to the administration, who requested anonymity as the White House denies the story, is now saying that Pence and his team were not made aware of any investigation relating to Flynn’s work as a foreign agent for Turkey.

“It’s also a fact that if [Flynn] told [Trump Transition attorney, now White House Chief Counsel, Don] McGahn that during the transition, it’s also a fact that not only was Pence not made aware of that, no one around Pence was as well,” the source said. “And that’s an egregious error — and it has to be intentional. It’s either malpractice or intentional, and either are unacceptable.”

The source’s claims are offered despite the fact that Flynn himself also served as one of Pence’s vice-chairs on the Presidential transition.

The NBC report offers a plausible sounding explanation for Pence’s seeming ability to be everywhere, yet know absolutely nothing about what happened, particularly given the number of occasions where Trump has swiftly thrown those defending his actions under the bus: e.g., when, one day after Pence said the President had simply complied with Assistant Attorney General Rob Rosenstein’s “recommendation” when he fired FBI Director James B. Comey, Trump acknowledged he’d made the decision to fire Comey before Rosenstein wrote the memo.

But there are a multitude of reasons why the “I know nothing!” defense doesn’t really wash, particularly given Pence’s penchant to quietly lie with a straight face, even when directly confronted by contradictory information, and instances in which Pence has denied all knowledge of otherwise broadly publicized information…

‘Jedi Mind Trick’

It is difficult at this time to ignore many of Pence’s past performances, which illustrate his well-document penchant for lying.

In the aftermath of last year’s Vice-Presidential debate, Brad Friedman observed that an “astonishingly dishonest” Pence, “a man who has argued smoking doesn’t cause cancer [and] denies climate change,” had offered up “an avalanche of lies” that was “simply jaw dropping at times.” The New Republic referred to Pence’s debate performance as an effort to “gaslight the American people.”

Like the last Republican Vice President, Dick Cheney, Pence appears to have mastered what I previously described as the “quiet lie”: the ability to calmly and quietly deliver a lie in such a matter-of-fact manner as to suggest that the falsehood is an obvious truth. The technique was so successfully deployed during last year’s Vice Presidential Debate that Tessa Stuart of Rolling Stone was left to conclude that Pence had deployed the “Jedi Mind Trick.”

In a subsequent article, Politifact listed eleven (11) separate claims made by Pence, during and after the debate, that were patently false.

One particular debate prevarication seems especially poignant:

SEN. TIM KAINE: Donald Trump started this campaign in 2014 and said, “If I run for President, I will absolutely release my taxes.” He’s broken his first promise.

PENCE: He hasn’t broken his promise.

Trump said: “If I decide to run for office, I’ll produce my tax returns, absolutely.” This past April — five months after the campaign ended — the White House refused to say whether Trump would ever release his tax returns.

Implausible Deniability

There are two instances in which Pence’s denial of knowledge of Flynn’s behavior are beyond believability, especially given that Pence had served as the Chair of Trump’s transition team.

One of these was addressed by the Washington Post in an article late last week headlined “Vice President Pence has a growing credibility gap“. Specifically, the Post’s Aaron Blake points to the now-infamous March 9, 2017 interview by Bret Baier on Fox “News”:

BAIER: The story today that former national security adviser Michael Flynn has filed with the Department of Justice as a foreign agent for making more than $500,000 as a lobbyist, essentially, for Turkey. Your reaction to that, given that, doesn’t that mean, Mr. Vice President, that even if he didn’t lie to you about what the Russian ambassador said or didn’t say, that you would have had to fire him anyway?

PENCE: Well, let me say, hearing that story today was the first I’d heard of it.” [Emphasis in orig.]

To this, Blake observes, with a degree of incredulity, that “Flynn informed the Trump transition team more than two weeks before the inauguration that he was under federal investigation for his work as a lobbyist advocating for Turkish government interest.” At that time, Blake argues, Pence was “firmly in charge” of the transition team.

It would have required a great deal more than Trump’s alleged desire to keep Pence in the dark to conclude that there was anything remotely resembling the truth in Pence’s claim that he never learned about Flynn’s financial conflicts-of-interest regarding Turkey before March 9, 2017.

In a formal November 18, 2016 letter that was addressed to “The Honorable Mike Pence, Vice President-Elect, Presidential Transition Office, 1800 F Street NW, Washington DC 20006,” Rep. Elijah Cummings (D-MD), the ranking member of the House Committee on Oversight and Government Reform, spelled out the details, noting in part:

Flynn was receiving classified briefings during the presidential campaign while his consulting firm, Flynn Intel Group, Inc., was being paid to lobby the U.S. Government on behalf of a foreign government’s interests. Lt. Gen. Flynn’s General Counsel and Principal, Robert Kelley, confirmed that they were hired by a foreign company to lobby for Turkish interests, stating: “They want to keep posted on what we all want to be informed of: the present situation, the transition between President Obama and President-Elect Trump.” When asked whether the firm had been hired because of Lt. Gen. Flynn’s close ties to President-elect Trump, Mr. Kelley responded, “I hope so.”

Cummings went on to reference Flynn’s financial ties to both Turkey and Russia and to point to Flynn’s pro-Turkey op-ed that was published by The Hill on November 8. Cummings concluded the letter with requests that Pence produce “a copy of any information provided by Lt. Gen Flynn to the Transition Team in order to determine his business clients and to vet any potential financial conflicts of interest.”

After a Pence spokesman recently waffled, claiming he was “not sure we saw the letter,” the House Oversight Dems posted the transition team’s “official receipt” on Twitter. In the receipt, the Transition’s Office of Legislative Affairs thanked Cummings for the information and promised to “review your letter carefully.”

While it’s possible, despite that response, that Cummings letter somehow disappeared into a black hole during the chaotic transition overseen by Pence himself, the letter and its confirmed receipt aren’t the only items difficult to ignore. If there were any truth to Pence’s March 9 “first I’d heard of it” claim, one would also have to assume the Vice President paid no attention to numerous media reports — starting with the Nov. 11, 2016 Daily Caller article headlined: “Trump’s Top Military Advisor Is Lobbying For Obscure Company With Ties To Turkish Government”.

Days later, on Nov. 14, in an article headlined “Trump adviser linked to Turkish lobbying”, POLITICO observed

Retired Lt. Gen. Michael Flynn, a vice chair of the Trump transition who is in the running for a top national security post in the new administration, runs a consulting firm that is lobbying for Turkish interests, an associate told POLITICO. Asked if Flynn’s firm was hired because of the general’s closeness to Trump, the associate, Robert Kelley, said, “I hope so.”

A lobbying registration posted Sept. 30 said that Kelley, a former chief counsel to the House National Security Subcommittee, would lobby on bills funding the departments of State and Defense.

That same month the story was picked-up by AP, and repeated by CNN Politics, as well as by The New York Times and others. The Nov. 20 New York Times piece specifically pointed to the fact that Flynn had failed to “disclose that he was a paid lobbyist for a consultancy founded by a Turkish businessman, Ekim Alptekin, who is also the head of the Turkish-America Business Council.”

This brings us to the second denial that strains credulity, the claim made by Pence spokesman Mark Lotter that the Vice President had no inkling of the fact that Flynn had, indeed, discussed sanctions with Russian Ambassador Sergey Kislyak until after the Washington Post, on February 9, cited leaked transcripts of the conversation. To this day, Pence insists he first heard of that aspect of the Flynn-Kislyak conversation from press accounts.

Thanks to her sworn Congressional testimony, we now know that former Deputy Attorney General Sally Yates, then serving as Acting Attorney General, met twice inside the White House with White House Chief Counsel Don McGahn; that she not only informed McGahn about the true content of Flynn’s interactions with Kislyak but also that Flynn was so compromised by his prevarications about his Russian entanglements that he had opened himself up to the possibility of being blackmailed. Yates also conveyed to McGahn that she felt that the Vice President and other White House insiders had made false public statements about Flynn’s interactions with Kislyak and that “we [the Department of Justice] felt the Vice President and others were entitled to know that the information that they were conveying to the American people wasn’t true.”

We are now asked to believe that, despite Yates’ dire warning, McGahn and the President concealed that information from Pence. If that were an isolated claim, it might sound believable. But that claim must be viewed in the context of a Vice President whose penchant for deception is so profound as to warrant a description of “jaw dropping.”

Since Pence presents this questionable claim to the court of public opinion, I would respectfully submit, Ladies and Gentlemen of the public opinion jury, that a CA Civil Jury Instruction is apropos: “if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.”

Is Team Pence’s use of the “Sergeant Schultz defense” — assurances that he was kept in the dark by Trump, McGahn and others closer to the President than he — plausible? Perhaps, if he’s granted the benefit of a doubt he has decidedly not earned.

Are their claims believable? Well, based on the documented evidence and Pence’s long, well-established record of unapologetic lies, I see no reason to believe him now and neither should you.

Note: A separate version of this article, Pence and the ‘Sergeant Schultz Defense’ was previously published by The BRAD BLOG.

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Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @can

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