675 Days In, the Durham Investigation Has Lasted Longer than the Mueller Investigation

Today marks the 675th day of the Durham investigation into the origins and conduct of the investigation that became the Mueller investigation. That means Durham’s investigation has lasted one day longer than the entire Mueller investigation, which Republicans complained lasted far too long.

The single solitary prosecution Durham has obtained in that span of time in which Mueller prosecuted George Papadopoulos, Mike Flynn, Paul Manafort, Rick Gates, Richard Pinedo, Alex Van der Zwan, Michael Cohen (for his lies about Trump’s Trump Tower Moscow deal) was the guilty plea of Kevin Clinesmith, based on conduct discovered by DOJ Inspector General Michael Horowitz.

In addition to those prosecutions, Mueller referred further Cohen charges to SDNY, Sam Patten for prosecution to DC, and Bijan Kian for prosecution in EDVA. Mueller charged Roger Stone and handed that prosecution off to DC. He further charged Konstantin Kilimnik, 12 IRA trolls, Yevgeniy Prigozhin, and 12 GRU officers. He referred Paul Manafort’s influence peddling partners, Republican and Democratic alike, for further investigation, leading to the failed prosecution of Greg Craig. Mueller referred 12 other matters — most still sealed — for further investigation, along with the Egyptian bribery investigation originally started in DC.

Meanwhile, Durham has never released a public budget, though by regulation he had to submit a budget request to DOJ in December.

Say what you will about Mueller’s investigation. But it was an investigation that showed real results. Durham, meanwhile, has been churning over the work that DOJ IG already did for as long as Mueller’s entire investigation.

News from the Election Front: Russia Attacked Joe Biden Through “Prominent US Individuals, Some of Whom Were Close to Former President Trump”

Back in 2018, President Trump signed an Executive Order 13848, designed to stave off a law mandating sanctions in the event of election interference. The order nevertheless required reporting on election interference and provided the White House discretion to impose sanctions in the event of interference. Yesterday, the Director of Homeland Security and Director of National Intelligence released the reports mandated by an Executive Order, describing the known efforts to interfere in last year’s election.

Trump’s Intelligence Community Debunks Trump

Though Trump failed to comply publicly in 2019, his own EO mandates deadlines for — first — the DNI report assessing a broader range of possible election interference and then, 45 days later, the DHS/DOJ report describing interference with election infrastructure or influence operations.

(a) Not later than 45 days after the conclusion of a United States election, the Director of National Intelligence, in consultation with the heads of any other appropriate executive departments and agencies (agencies), shall conduct an assessment of any information indicating that a foreign government, or any person acting as an agent of or on behalf of a foreign government, has acted with the intent or purpose of interfering in that election. The assessment shall identify, to the maximum extent ascertainable, the nature of any foreign interference and any methods employed to execute it, the persons involved, and the foreign government or governments that authorized, directed, sponsored, or supported it. The Director of National Intelligence shall deliver this assessment and appropriate supporting information to the President, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security.

(b) Within 45 days of receiving the assessment and information described in section 1(a) of this order, the Attorney General and the Secretary of Homeland Security, in consultation with the heads of any other appropriate agencies and, as appropriate, State and local officials, shall deliver to the President, the Secretary of State, the Secretary of the Treasury, and the Secretary of Defense a report evaluating, with respect to the United States election that is the subject of the assessment described in section 1(a):

(i) the extent to which any foreign interference that targeted election infrastructure materially affected the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results; and

(ii) if any foreign interference involved activities targeting the infrastructure of, or pertaining to, a political organization, campaign, or candidate, the extent to which such activities materially affected the security or integrity of that infrastructure, including by unauthorized access to, disclosure or threatened disclosure of, or alteration or falsification of, information or data.

These deadlines should have been, for the DNI Report, December 18, and for the DHS/DOJ report, February 1.

The declassified DNI report released yesterday was finished and distributed, in classified form, on January 7.

The document is a declassified version of a classified report that the IC provided to the President, senior Executive Branch officials, and Congressional leadership and intelligence oversight committees on January 7, 2021.

It was based off intelligence available as of December 31.

The DHS report was completed in February.

Which is to say that these reports were done substantially under the Trump Administration.

DHS Debunks the Kraken

The DHS report, based off the classified report completed in February, finds that while Russian and Iran breached some election infrastructure, they did not manage to change any votes. It also finds that those two countries plus China managed to compromise party or campaign infrastructure, with unknown goals, but that none of the countries that accessed information that could have been used in influence operations used the information.

The most important result, however, was that after checking via multiple different measures, the government found no evidence that dead Hugo Chavez or anyone else that Sidney Powell invoked in service of the Big Lie succeeded in changing any votes.

We are aware of multiple public claims that one or more foreign governments—including Venezuela, Cuba, or China—owned, directed, or controlled election infrastructure used in the 2020 federal elections; implemented a scheme to manipulate election infrastructure; or tallied, changed, or otherwise manipulated vote counts. Following the election, the Department of Justice, including the FBI, and the Department of Homeland Security, including CISA, investigated the public claims and determined that they are not credible.

We have no evidence—not through intelligence collection on the foreign actors themselves, not through physical security and cybersecurity monitoring of voting systems across the country, not through post-election audits, and not through any other means—that a foreign government or other actors compromised election infrastructure to manipulate election results.

DNI (Mostly) Debunks the DNI

Last summer, the Director of National Intelligence John Ratcliffe responded to Democratic concerns about Russia interfering in the election again by stating that China was too. This report largely debunks that claim.

We assess that China did not deploy interference efforts and considered but did not deploy influence efforts intended to change the outcome of the US presidential election. We have high confidence in this judgment. China sought stability in its relationship with the United States and did not view either election outcome as being advantageous enough for China to risk blowback if caught. Beijing probably believed that its traditional influence tools, primarily targeted economic measures and lobbying key individuals and interest groups, would be sufficient to achieve its goal of shaping US policy regardless of who won the election. We did not identify China attempting to interfere with election infrastructure or provide funding to any candidates or parties.

  • The IC assesses that Chinese state media criticism of the Trump administration’s policies related to China and its response to the COVID-19 pandemic remained consistent in the lead-up to the election and was aimed at shaping perceptions of US policies and bolstering China’s global position rather than to affect the 2020 US election. The coverage of the US election, in particular, was limited compared to other topics measured in total volume of content.
  • China has long sought to influence US politics by shaping political and social environments to press US officials to support China’s positions and perspectives. We did not, however, see these capabilities deployed for the purpose of shaping the electoral outcome. [Bold original]

The report describes that the National Intelligence Officer for Cyber had moderate confidence that China was trying to help Joe Biden win.

Minority View The National Intelligence Officer for Cyber assesses that China took at least some steps to undermine former President Trump’s reelection chances, primarily through social media and official public statements and media. The NIO agrees with the IC’s view that Beijing was primarily focused on countering anti-China policies, but assesses that some of Beijing’s influence efforts were intended to at least indirectly affect US candidates, political processes, and voter preferences, meeting the definition for election influence used in this report. The NIO agrees that we have no information suggesting China tried to interfere with election processes. The NIO has moderate confidence in these judgments.

This view differs from the IC assessment because it gives more weight to indications that Beijing preferred former President Trump’s defeat and the election of a more predictable member of the establishment instead, and that Beijing implemented some-and later increased-its election influence efforts, especially over the summer of 2020. The NIO assesses these indications are more persuasive than other information indicating that China decided not to intervene. The NIO further assesses that Beijing calibrated its influence efforts to avoid blowback.

That said, the day after this report was initially disseminated in classified form on January 7, Ratcliffe made clear that the Ombud believed this was a politicized view, and that more than just the Cyber NIO agreed (though didn’t mention that the Ombud believed Russian intelligence had been politicized even worse).

President Trump’s political appointees clashed with career intelligence analysts over the extent to which Russia and China interfered or sought to interfere in the 2020 election, with each side accusing the other of politicization, according to a report by an intelligence community ombudsman.

The findings by Barry A. Zulauf, the “analytic ombudsman” for the Office of the Director of National Intelligence (ODNI), describe an intelligence community afflicted by a “widespread perception in the workforce about politicization” of analysis on the topic of foreign election influence — one that he says threatens the legitimacy of the agencies’ work.

[snip]

Citing Zulauf’s report, Director of National Intelligence John Ratcliffe, chosen for the position by Trump last year, charged Thursday that career analysts in a recently completed classified assessment failed to capture the full scope of Chinese government influence on the election — a charge that some current and former officials say illustrates the issue of politicization, because it downplays the much larger role of Russia.

As late as October, then, another Intelligence Officer had some confidence that what this report deems China’s regular influence-peddling had an electoral component, but (as Ratcliffe complained in January) it did not show up in this report, which was entirely produced after the Ombud weighed in.

The IC Now Associates Konstantin Kilimnik with FSB, not GRU

The long section on Russia’s efforts to influence the election get pretty damned close to saying that the events surrounding Trump’s first impeachment and even the Hunter Biden laptop were Russian backed (which is consistent with intelligence warnings that were broadly shared). It might as well have named Rudy Giuliani (among others).

We assess that President Putin and the Russian state authorized and conducted influence operations against the 2020 US presidential election aimed at denigrating President Biden and the Democratic Party, supporting former President Trump, undermining public confidence in the electoral process, and exacerbating sociopolitical divisions in the US. Unlike in 2016, we did not see persistent Russian cyber efforts to gain access to election infrastructure. We have high confidence in these judgments because a range of Russian state and proxy actors who all serve the Kremlin’s interests worked to affect US public perceptions. We also have high confidence because of the consistency of themes in Russia’s influence efforts across the various influence actors and throughout the campaign, as well as in Russian leaders’ assessments of the candidates. A key element of Moscow’s strategy this election cycle was its use of people linked to Russian intelligence to launder influence narratives–including misleading or unsubstantiated allegations against President Biden–through US media organizations, US officials, and prominent US individuals, some of whom were close to former President Trump and his administration.

[snip]

Derkach, Kilimnik, and their associates sought to use prominent US persons and media conduits to launder their narratives to US officials and audiences. These Russian proxies met with and provided materials to Trump administration-linked US persons to advocate for formal investigations; hired a US firm to petition US officials; and attempted to make contact with several senior US officials. They also made contact with established US media figures and helped produce a documentary that aired on a US television network in late January 2020. [Bold original, italics added]

The report likens what Russian entities were doing post-election with what Russia had planned in 2016.

Even after the election, Russian online influence actors continued to promote narratives questioning the election results and disparaging President Biden and the Democratic Party. These efforts parallel plans Moscow had in place in 2016 to discredit a potential incoming Clinton administration, but which it scrapped after former President Trump’s victory.

Perhaps the most interesting detail — on top of revealing that Paul Manafort’s former employee remained involved in all this — is that this report suggests Kilimnik has ties to FSB, not GRU (though the report describes GRU’s efforts as well).

A network of Ukraine-linked individuals–including Russian influence agent Konstantin Kilimnik–who were also connected to the Russian Federal Security Service (FSB) took steps throughout the election cycle to damage US ties to Ukraine, denigrate President Biden and his candidacy, and benefit former President Trump’s prospects for reelection.

The most recent public reporting on Kilimnik was the SSCI Report. And that suggested that Kilimnik (along with at least one other Oleg Deripaska deputy) was linked to GRU. Indeed, Kilimnik has been described as a former GRU officer. This suggests he may have ties, as well or more recently, to FSB, which would have interesting implications for the 2016 operation.

 

Bill Barr Claimed a Threat Meriting a Four Subpoena Investigation Didn’t Merit a Sentencing Enhancement

In the aftermath of the Proud Boys-led insurrection, I’ve been reporting over and over on how Bill Barr’s DOJ treated threats by the Proud Boys against Amy Berman Jackson — which the probation office treated as the same kind of threat as the obstruction charge being used against many of the January 6 defendants — as a technicality unworthy of a sentencing enhancement.

Katelyn Polantz advanced that story last night, reporting that DOJ subpoenaed the four Proud Boys implicated by Roger Stone in his threat against ABJ for grand jury testimony.

Stone — testifying at a court hearing in 2019 to explain the post — said at the time that a person working with him on his social media accounts had chosen it.

Then, at another hearing the same year, Stone named names. Tarrio, the leader of the Proud Boys, had been helping him ​with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript​.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

Tarrio and Engels did not respond to inquiries from CNN, and Stone declined to respond to CNN’s questions. ​The FBI’s Washington, DC, office did not respond to requests for comment from CNN.

A person familiar with the case said it had closed without resulting in any charges.

For what it’s worth, given the interest Mueller showed in Stone’s social media work, given the close ties between Stone’s social media work and that of the Proud Boys, and given that parts of the investigation against Stone continued well after his trial, it’s possible prosecutors used Stone’s comments as a way to ask other questions: about whether Stone had paid four of his closest buddies in the Proud Boys (remember they were also looking for a notebook Stone used for his 2016 book that recorded all of his communications with Trump).

That said, DC’s US Attorney’s office paid for four witnesses to come to DC to testify about whether they had had a role in Stone’s threats against the judge presiding over his case.

That raises the stakes on the things Barr said publicly about this threat. As noted, in a sentencing memo written as Barr’s urging, DOJ claimed that the threat against ABJ “overlap[ped] … with the offense conduct in this case.”

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

And DOJ dismissed the import of a threat against a judge by suggesting that if it didn’t prejudice prosecutors at trial, it doesn’t much matter.

More problematic still was Barr’s testimony before House Judiciary Committee last July, just over two months before the President said the Proud Boys should “stand back and stand by.”

When Congressman Ted Deutch asked Barr if he could think of any other case where threatening to kill a witness and then threatening a judge were treated as mere technicalities, Barr kept repeating, at least five times, that “the Judge agreed with me.”

Deutch: You said enhancements were technically applicable. Mr. Attorney General, can you think of any other cases where the defendant threatened to kill a witness, threatened a judge, lied to a judge, where the Department of Justice claimed that those were mere technicalities? Can you think of even one?

Barr: The judge agreed with our analysis.

Deutch: Can you think of even one? I’m not asking about the judge. I’m asking about what you did to reduce the sentence of Roger Stone?

Barr: [attempts to make an excuse]

Deutch: Mr. Attorney General, he threatened the life of a witness —

Barr: And the witness said he didn’t feel threatened.

Deutch: And you view that as a technicality, Mr. Attorney General. Is there another time

Barr: The witness — can I answer the question? Just a few seconds to answer the question?

Deutch: Sure. I’m asking if there’s another time in all the time in the Justice Department.

Barr: In this case, the judge agreed with our — the judge agreed with our —

Deutch: It’s unfortunate that the appearance is that, as you said earlier, this is exactly what you want. The essence of rule of law is that we have one rule for everybody and we don’t in this case because he’s a friend of the President’s. I yield.

That claim — that ABJ agreed with the analysis of Barr and his flunkies — was a lie, a lie made under oath. ABJ, a liberal judge without Barr’s lifetime authoritarian claims about crime, believed the sentencing guidelines are too harsh. She did not believe these enhancements were mere technicalities.

Indeed, in ruling that the enhancement for the threat against her applied — a threat against official proceedings, the same charge being used against many of the insurrectionists — she talked about how posting a threat on social media, “increased the risk that someone else, with even poorer judgment than he has, would act on his behalf.”

I suppose I could say: Oh, I don’t know that I believe that Roger Stone was actually going to hurt me, or that he intended to hurt me. It’s just classic bad judgment.

But, the D.C. Circuit has made it clear that such conduct satisfied the test. They said: To the extent our precedent holds that a §3C1.1 enhancement is only appropriate where the defendant acts with the intent to obstruct justice, a requirement that flows logically from the definition of the word “willful” requires that the defendant consciously act with the purpose of obstructing justice.

However, where the defendant willfully engages in behavior that is inherently obstructive, that is, behavior that a rational person would expect to obstruct justice, this Court has not required a separate finding of the specific intent to obstruct justice.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

This warning about what happens when people post inciteful language on Instagram might well have served as a warning in advance of January 6. But Barr, in testimony under oath to House Judiciary Committee, pretended that his DOJ had not ignored such a threat.

While it didn’t make the sentencing guidelines, the Proud Boy-linked threats to Credico were sufficiently serious that under FBI’s Duty to Warn, they alerted Credico to the threats. Now we learned that line prosecutors treated the threat against ABJ as sufficiently serious that they obtained grand jury subpoenas to learn more about it.

And in testimony under oath, Bill Barr pretended that ABJ agreed — and it was reasonable for his office to treat — such threats as mere technicalities.

Flashbacks to the 2015 Campaign

Katy Tur at SXSW
[h/t nrkbeta Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) ]

Several years ago, I got Mrs Dr Peterr Katy Tur’s book Unbelievable: My Front-Row Seat to the Craziest Campaign in American History. Tur had been the NBC reporter assigned to the Trump campaign in 2015 and 2016, and listening to the impeachment coverage yesterday and the coverage this morning, one episode she recounted in the book came flashing back . . .

In Dec 2015, three days before Trump announced his pledge to institute a Muslim travel ban, Trump got rattled at a rally in Raleigh NC where protesters coordinated their efforts and threw him off his game, interrupting his speech every couple of minutes from different parts of the arena. Disgusted, Trump abruptly left the podium and started shaking hands offstage, and Tur sent out a simple tweet describing what had happened.

Right before lunch the next day, Hope Hicks wrote her to say “Katy, Mr. Trump thought your tweets from last night were disgraceful. Not nice! Best, Hope.” Shortly thereafter, the media gets the word about the travel ban Trump intended to announce that night, and that becomes the big story of the day with Katy doing liveshots all afternoon. That evening, before a rally inside the USS Yorktown (an aircraft carrier-turned-museum in Charleston harbor), Trump blasted her with four attack tweets in the span of four minutes.

Tur says the rally’s specific location was a surprise, in that it wasn’t held on the carrier deck but inside the belly of the ship, with the media crowded into a pen.

Yes, we are in a pen: a makeshift enclosure made of bicycle racks and jammed full of desks, reporters, and camera equipment. We’re in the middle of the carrier, slammed against the right side wall. As usual, almost all of Trump’s supporters are white and a lot of them are looking at us, not exactly kindly. The campaign and Secret Service force us to stay inside the pen while Trump is onstage. They even discourage bathroom breaks. None of them have a good explanation for why we’re kept separate from the supporters. Are we the threat or are they?

Trump starts his rambling speech, and the crowd eats it up. Then Trump opens up on the media.

“The mainstream media,” Trump says. “These people back here, they’re the worst. They are so dishonest.”

Hoots and hollers.

And then I hear my name.

“She’s back there, little Katy. She’s back there.”

Trump then calls her a liar several times, and a third rate reporter several times as well, before pivoting to a more general attack on the media. Finally, once he’s got the crowd sufficiently whipped up, he formally announces the Muslim ban, and the crowd which she described earlier as looking at her like “a large animal, angry and unchained” went nuts.

She goes live with Chris Matthews as Trump leaves the stage, and when she’s done with that, Chris Hayes takes over and wants to keep her on the air for the lead story on his show that followed Matthews’.

[Trump] supporters are taking their time to leave. They’re still whipped up. I know someone is going to start yelling at me as soon as I start talking. So I do what I always do. I find the pinhole deep in the back of the lens and I tune everything else out.

A couple of minutes later, I’m done. The crowd that had gathered behind my live shot is gone except for a few stragglers, yelling at me. They’re five feet away, held back by those lousy bicycle racks. A Trump staffer shoos them away. MSNBC has cleared me and my bosses want [her cameraman/sound tech] Anthony and me to get out of there as quickly as we can. I don’t quite understand why until we pack up and start to head out. A Trump staffer stops me and says “These guys are going to walk you out.”

I look over and see two Secret Service agents. Thank goodness. They walk Anthony and me along the gangway back to our car. It’s pitch black and I’m nervous. We’re parked with the crowd.

Once we’re moving, I take a look at my phone. My mom has called. And called. And called. I dial her back. “Are you okay? Where are you staying? Can someone stay with you? You need security!? She is crying. And it hits me.

I’m a target.

On that day in December 2015, the security professionals of the US Secret Service recognized that Trump was dangerously inciting a mob, and stepped in to protect the target he had singled out.

On January 6, 2021, Trump again incited a mob, and this time there was no one to stop them.

The Most Counterproductive Letter in Defense of Julian Assange

How seriously do you think the Joe Biden Administration is going to take a letter that,

  • Implicitly treats helping Edward Snowden flee Hong Kong to Russia (one of the overt acts Julian Assange is currently charged with) as a journalistic activity
  • Was written by an organization on the board of which Edward Snowden serves, without any disclosure of the relationship (or that another Freedom of the Press Foundation board member, Laura Poitras, decided in real time that such activities weren’t journalism, thereby eliminating the New York Times problem the letter claims still exists)
  • Treats the Julian Assange extradition request as a Trump Administration decision at a time when Biden is trying to emphasize that DOJ represents the country, not one president
  • Ties the Assange prosecution to Trump’s other politicization of DOJ when the evidence shows the opposite happened, that Trump abused power to attempt to protect Assange (in her ruling, Judge Baraitser also noted that Trump in no way treated WikiLeaks like he treated journalistic outlets)
  • Relies on dated 2013 reporting about the sum total of WikiLeaks’ actions targeting the US, ignoring much of the public record since, not to mention the grave damage incurred by a release — Vault 7 — that had almost no news value, which was allegedly leaked while Acting Deputy Attorney General John Carlin (who will probably field this letter) was in charge of DOJ’s National Security Division
  • Exhibits zero familiarity with the 54-page report — citing testimony from Biden Administration members Avril Haines, Lisa Monaco, Susan Rice, Tony Blinken, Samantha Power, Denis McDonough, and John Kerry — that concluded one reason the Obama Administration didn’t respond in more timely fashion to Russia’s attack on the 2016 election was because of a delayed understanding of how WikiLeaks had been “coopted” by Russia:

Despite Moscow’s history of leaking politically damaging information, and the increasingly significant publication of illicitly obtained information by coopted third parties, such as WikiLeaks, which historically had published information harmful to the United States, previous use of weaponized information alone was not sufficient for the administration to take immediate action on the DNC breach. The administration was not fully engaged until some key intelligence insights were provided by the IC, which shifted how the administration viewed the issue.

[snip]

The executive branch struggled to develop a complete understanding of WikiLeaks. Some officials viewed WikiLeaks as a legitimate news outlet, while others viewed WikiLeaks as a hostile organization acting intentionally and deliberately to undermine U.S. or allies’ interests.

The letter claims to want to protect a “robust” press. But this letter fails to meet journalistic standards of transparency or accuracy.

Nevertheless, the following organizations signed onto such a (in my opinion) counterproductive letter:

  • Access Now
  • American Civil Liberties Union
  • Amnesty International – USA
  • Center for Constitutional Rights
  • Committee to Protect Journalists
  • Defending Rights and Dissent
  • Demand Progress
  • Electronic Frontier Foundation
  • Fight for the Future
  • First Amendment Coalition Free Press
  • Freedom of the Press Foundation
  • Human Rights Watch
  • Index on Censorship
  • Knight First Amendment Institute at Columbia University
  • National Coalition Against Censorship
  • Open The Government
  • Partnership for Civil Justice Fund
  • PEN America
  • Project on Government Oversight
  • Reporters Without Borders
  • Roots Action
  • The Press Freedom Defense Fund of First Look Institute
  • Whistleblower & Source ProtectionProgram (WHISPeR) at ExposeFacts

I have a great deal of respect for these organizations, have worked for several of them, and have received funding in the past from Freedom of the Press Foundation. I agree with the sentiment of the letter that some of the current charges against Assange pose a risk to journalism. I believe these organizations could have written an effective letter to Acting Attorney General Monty Wilkinson (or, more effectively and with better targeting, to Carlin).

Instead, they signed onto a letter that violates several of the principles of journalism they claim to want to defend.

While Lindsey Graham Was Stalling Merrick Garland’s Confirmation He Was Hoping for Imminent Hunter Biden and John Durham News

One of the very last things Lindsey Graham did as Senate Judiciary Chair was to send a letter to Acting Attorney General Monty Wilkinson urging him not to do anything about two investigations that — according to his addled little brain — “Democrats would rather go away.” In addition to the Delaware investigation of Hunter Biden, Lindsey included the John Durham investigation in that.

I was even the primary sponsor of bipartisan legislation, favorably reported out of the Senate Judiciary Committee, to protect Special Counsel Mueller’s probe from being terminated. Special Counsel Mueller of course found no evidence of collusion between the Trump campaign and Russia, but it was important for public trust that the probe be completed without interference.

We now find the shoe on the other foot. We have two properly predicated, ongoing investigations Democrats would rather go away: Special Counsel John Durham’s investigation of the Crossfire Hurricane investigation and the investigation by the Delaware U.S. Attorney’s Office into Hunter Biden. Special Counsel Durham’s probe has already yielded a felony conviction.

I am writing to respectfully request that you refrain from interfering in any way with either investigation while the Senate processes the nomination of Judge Merrick Garland to the position of Attorney General. The American public deserve the truth and must know that these investigations will continue without political interference.

There’s a lot that’s ridiculous about this letter. It is laughably false to claim that Mueller “found no evidence of ‘collusion,'” — that would be a false claim even if Lindsey had used the legally relevant term of “conspiracy.”

The shoe is not on the other foot. In contradistinction to Trump’s incessant focus on the Russian investigation, there has been no peep about these investigations from the Biden White House. Instead, Hunter Biden rolled out a book deal the other day, which led his father to focus on the import of recovery from addiction, not legal risk.

Lindsey waves Durham’s single felony conviction around — as compared to Mueller’s much more productive investigation and based on evidence entirely derived from Michael Horowitz’ investigation — even after presiding FISA Judge James Boasberg concluded that Kevin Clinesmith did not commit that crime out of any ill-will and sentenced him to a year of probation.

It’s just such a pathetic effort to sustain conspiracy theories Trump chased, and in spite of the Fox News piece on this letter quoting someone that sounds remarkably like Lindsey Graham talking about an ongoing investigation he shouldn’t know about off the record, it’s not actually clear that either of these will result in a showy prosecution. Hell, for all we know, Durham has shifted his focus to what the FBI Agents who were sending pro-Trump tweets on their phones did during the investigation or why Bill Barr’s DOJ submitted altered documents to a criminal docket, precisely the crime Clinesmith pled guilty to.

To repeat, Graham wrote this to urge Wilkinson, who remains in charge of DOJ and oversees the Durham investigation (Acting Deputy Attorney General John Carlin probably oversees the Hunter Biden one) because Merrick Garland remains the most senior Cabinet official who hasn’t been confirmed yet. This was one of his last acts as Chair of SJC.

But the other major final stunt before handing his gavel over to Dick Durbin was precisely that delay. In spite of Garland’s bipartisan support and in spite of Durbin’s exhortations to stop delaying, Lindsey simply didn’t take up Garland’s nomination when he counterparts were doing so. And so DOJ may not get a confirmed Attorney General until late February or early March.

Probably, Lindsey primarily stalled this confirmation just to impose a price on Democrats for impeaching the former President.

But I had been wondering whether Lindsey didn’t have more in mind, perhaps the delay of charges that DOJ would not unseal without Garland’s sanction. And that may be the case.

But along with that delay, Lindsey has also delayed his opportunity to obtain assurances from Garland that he’ll leave these two investigations Lindsey is obsessed about untouched.

Kevin Clinesmith Sentenced to a Year of Probation

Judge James Boasberg just sentenced Kevin Clinesmith to a year of probation for altering a CIA email describing Carter Page’s prior relationship with the CIA.

Carter Page spoke at some length in his typical rambling style. Notably, he did not call for a harsh sentence for Clinesmith. And much of what he said was irrelevant to the sentencing (he seemed to be pitching to be a FISC amicus, as if the ties between him and Russian intelligence weren’t real concerns).

Anthony Scarpelli, arguing for the government, did not repeat a claim made in their sentencing memorandum, that Clinesmith may have made this alteration for political reasons. Judge Boasberg noted that the DOJ IG Report had found no evidence of such.

The government did suggest that Clinesmith had altered the email for more than just to avoid the work of correcting it. Boasberg didn’t see it that way. He found the argument of Clinesmith’s lawyer, Justin Shur, compelling that there was no personal benefit to Clinesmith because he wasn’t on the hook for the earlier mistakes in the application.

Boasberg also made a quip that, unlike certain politicians, Clinesmith had not chosen to be in the public limelight.

The hearing was perhaps most interesting for Boasberg’s comments, as the presiding FISA judge presiding over a criminal case pertaining to FISA, about the import of the FISA court’s role in checking Executive authority. I’ll return to those comments when a transcript is available.

Ultimately, then, this closes the most productive aspect of the Durham investigation, which has gone on almost as long as the investigation it is supposed to investigate.

Whither the Douglass Mackey Investigation?

Yesterday, the FBI arrested Douglass Mackey, a far right activist who used the pseudonym Ricky Vaughn, for his efforts in 2016 to suppress Clinton voters. The complaint charges Mackey with a conspiracy against others’ Constitutional rights under 18 USC §241. I want to unpack what the complaint says about where this investigation came from and where it might head, if anywhere.

Mackey and others led almost 5,000 people to miscast their 2016 vote

There’s a lot of language in the complaint about Mackey’s social media efforts — which has a number of right wingers, including those who were tangentially involved in this effort, whining about their own First Amendment rights. Ultimately, though, the crime boils down to ads that Mackay made and popularized in the weeks leading up to the 2016 election encouraging Hillary voters to text their vote. If people did so, they would have thought their vote was cast, when in effect they would have texted it to a void.

The complaint notes that the text code Mackey used for the campaign got 4,900 responses.

According to iVisionMobile, the company that owned the Text Code listed in the two Deceptive Images distributed by MACKEY, at least 4,900 unique telephone numbers texted “[Candidate’s first name]” or some derivative to the Text Code on or about and before Election Day, including many belonging to individuals in the Eastern District of New York. Of the approximately 4,900 numbers that corresponded with the Text Code, approximately 4,850, or 99%, sent their texts after MACKEY first tweeted a Deceptive Image from MACKEY Account 2. [my emphasis]

Effectively, then, the complaint argues that Mackey tricked almost 5,000 people to miscast a Hillary vote, thereby depriving them of their right to cast a valid vote.

This investigation was started and finalized under a Trump US Attorney

Right wingers are also whining that the timing of this complaint shows that the Deep State is moving against Trump supporters immediately after his departure.

That makes no sense.

First, at least two key steps in this investigation, interviews of Paul Nehlen and filmmaker Loren Feldman, happened last fall.

On or about October 5, 2020, FBI agents conducted a voluntary interview with the Congressional Candidate. The Congressional Candidate confirmed that “Ricky Vaughn’s” true name was MACKEY, and that MACKEY had offered his services to his/her campaign. The Congressional Candidate added that, although s/he had never met MACKEY in person, s/he frequently communicated with MACKEY by telephone and via MACKEY’s personal email accounts.

On or about October 19, 2020, FBI agents conducted a voluntary interview of the Filmmaker who again confirmed that s/he had interviewed MACKEY in 2016 and that s/he knew MACKEY at that time by his Twitter name of “Rickey Vaughn.” The Filmmaker futher confirmed that s/he had subsequently been shown a photograph of MACKEY and confirmed that the individual in the photograph was the individual the Filmmaker had met as “Ricky Vaughn.”

In October 2020, as now, the Brooklyn US Attorney was Seth DuCharme. While DuCharme spent his career in EDNY, he was a key aide to Bill Barr, both as Counselor and then PADAG. In July, Barr effectively swapped DuCharme back into EDNY and moved the then US Attorney, Richard Donoghue, to PADAG.

In other words, the guy whose name will be on this indictment is among Barr’s most trusted aides.

DuCharme even issued a strong statement about this prosecution when it was announced.

“There is no place in public discourse for lies and misinformation to defraud citizens of their right to vote,” said Seth D. DuCharme, Acting U.S. Attorney for the Eastern District of New York. “With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of Internet anonymity to evade responsibility for their crimes. They will be investigated, caught and prosecuted to the full extent of the law.”

I argued in this post that early indictments in the Biden Administration would (because he’s not immediately replacing all US Attorneys) be approved by Trump loyalists, and this is a perfect example of that.

Actions completed in 2016 are being charged in 2021

One of the most interesting questions about this complaint is why actions that were completed in 2016 and didn’t appear to take much investigation beyond some warrants to Twitter and two interviews were only charged in 2021.

It’s not entirely clear where this investigation came from, but the most likely is that when HuffPo originally exposed Mackey in 2018, someone at the FBI or DOJ took notice. That seems all the more likely given that the complaint relies on some of the research in that original story, including that Mackey had a reach on Twitter well outside his follower count.

There was no mistaking Ricky Vaughn’s influence. He had tens of thousands of followers, and his talent for blending far-right propaganda with conservative messages on Twitter made him a key disseminator of extremist views to Republican voters and a central figure in the “alt-right” white supremacist movement that attached itself to Trump’s coattails. The MIT Media Lab named him to its list of top 150 influencers on the election, based on news appearances and social media impact. He finished ahead of NBC News, Drudge Report and Stephen Colbert. Mainstream conservatives didn’t know they were retweeting an avowed racist and anti-Semite, but they liked what Ricky Vaughn had to say.

So the simplest explanation for the genesis of this investigation is that article.

There are other possibilities, though.

For example, as that original HuffPo story noted, Mackey magnified one of the Internet Research Agency’s most effective Twitter accounts, TEN_GOP, which many right wingers mistakenly believed was the official account of Tennessee’s Republican Party.

In the data set of significant accounts we looked at, Ricky Vaughn retweeted @TEN_GOP the most, by far. Although Twitter shut down his @Ricky_Vaughn99 handle in October 2016, another handle he possibly used, @RapinBill, took over and retweeted @TEN_GOP at least 162 times between early March and late August 2017. (@RapinBill also retweeted @Pamela_Moore13, another Kremlin-controlled account, at least 37 times during this period.)

Some far-right sources suggest that @RapinBill might be an account run by another anonymous bad actor, an assertion for which there is no proof, but the account has nevertheless capitalized on the Ricky Vaughn brand of far-right intolerance and fake news. We will update this story as we learn more.

Curiously, @RapinBill, which is still active and followed by Donald Trump Jr., does not appear to have received a single reciprocal retweet from @TEN_GOP during the time period we looked at, perhaps indicating an attempt to conceal the connection. @RapinBill retweeted @TEN_GOP until the end. When Twitter finally shut down @TEN_GOP last August, after having ignored numerous complaints about the Russian account, Ricky Vaughn did not take it well. He groused that @TEN_GOP had been “banned for supporting our president.” Within hours, he was steering traffic to the Kremlin’s backup account:

Another possibility is that this investigation arose out of Mueller’s investigation of Mike Flynn and Roger Stone’s focus on social media during the 2016 election. As Luke O’Brien (the reporter who first unmasked Mackey) noted in his coverage of the complaint, Mackey had ties to efforts involving Flynn and Stone in 2016.

Mackey and the three co-conspirators that HuffPost was able to identify are closely associated with a group of high-level pro-Trump political saboteurs known as “MAGA3X” that had ties to the Trump campaign and Trump’s disgraced former national security adviser Michael Flynn.

Presided over by far-right Twitter influencer Mike Cernovich, white nationalist funder Jeff Giesea, who is a disciple of billionaire Peter Thiel, and neo-Nazi collaborator Jack Posobiec, who counts Roger Stone as a mentor, MAGA3X spearheaded the Pizzagate disinformation campaign on social media that targeted Hillary Clinton in the weeks before the 2016 election.

Mueller’s team focused closely on both Flynn and Stone’s involvement in social media in 2016. In August 2016, Stone pitched both Paul Manafort and Steve Bannon on how to win ugly using social media. The overt parts of Stone’s effort involved an Erik Prince-funded effort to suppress the black vote. One of the still-sealed warrants pertains to multiple Twitter accounts that don’t appear to be Stone’s. And Mueller interviewed several people who worked with Stone on social media campaigns (and asked Andrew Miller about Alex Jones’ campaigns, as well).

The biggest reason to doubt that this investigation comes out of Mueller’s is the venue. While Mackey has ties to Brooklyn, at the time of his actions, he was living in Manhattan, SDNY rather than EDNY. The complaint seems to claim venue based on victims who reside in EDNY, bolded in the blockquote above, not Mackey’s location at the time of his actions. If Mueller had referred this, he presumably would have referred it to where the actions took place, SDNY.

It’s also possible it comes out of the Intelligence Committees’ investigations into disinformation. As Quinta Jurecic noted last night, Mackey’s ads were among those Twitter shared with the committees in 2018, though not by name. But again, the logical place to pick that up would have been SDNY or even DC.

There’s one other possibility. Last fall, in an effort to feed Trump’s conspiracy theories, Barr affirmatively mobilized voter fraud investigations. If someone had been sitting on the evidence unveiled in 2018, Barr’s action would have provided the opportunity to wrap it up into an indictment, effectively using GOP claims of voter fraud as the excuse to prosecute GOP voter fraud.

DOJ charged just one member of a conspiracy

Perhaps the most enticing part of this complaint is that it explicitly includes four other people as co-conspirators.

It describes the actions of Mackey’s co-conspirators to include:

  • Discussing how best to optimize social media campaigns
  • Retweeting Mackey’s campaigns
  • Running several DM-based strategy groups called the Madman Group, the War Room, Fed Free Hatechat
  • Fine-tuning some of the ads used
  • Posting some of the actual ads
  • Adding Mackey’s new accounts back into the DM collaborations after Twitter shut down his accounts

It’s not entirely clear how EDNY chose to treat these four as co-conspirators as distinct from other Twitter users and DM collaboration participants.

O’Brien IDs three of the four co-conspirators:

The complaintlists four co-conspirators referred to only by Twitter “user IDs,” a unique string of numbers assigned to each Twitter account. HuffPost can report that one co-conspirator is a prominent alt-right botmaster who goes by “Microchip” and was instrumental in making pro-Trump and anti-Hillary Clinton hashtags and content go viral on Twitter during the 2016 election. A fascist accelerationist who has expressed admiration for Adolf Hitler and Nazism, Microchip claims to have been involved in the early spread of the QAnon conspiracy cult and repeatedly told this reporter that his goal was to destroy the United States.

Another of Mackey’s co-conspirators is Anthime “Baked Alaska” Gionet, a pro-Trump white nationalist who was arrested on Jan. 16 for his involvement in storming the Capitol on Jan. 6. Gionet also participated in the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia, in 2017. (A New York Times story reported Wednesday afternoon that Gionet was a co-conspirator, citing a source close to the investigation, and HuffPost can confirm that reporting based on the Twitter ID cited in the complaint.)

HuffPost was able to link the Twitter IDs in the complaint to Gionet and Microchip through previously collected Twitter data, interviews and evidence left by both extremists on other websites. In direct messages with this reporter last year, Microchip also confirmed that he was using the Twitter account associated with the user ID listed in the complaint.

The user ID for a third co-conspirator belongs to a pro-Trump far-right activist who goes by “Nia” and has a long history of spreading disinformation on Twitter. HuffPost has not yet been able to identify the fourth co-conspirator.

It’s unclear whether EDNY plans to add them in an indictment or not. It’s possible they just named them as co-conspirators so as to be able to use their DMs and other Tweets to build the case against Mackey (which would make it a matter of prosecutorial efficacy). It’s also possible they’ll get added when this is indicted.

Particularly given the inclusion of Baked Alaska in here, though, it’s possible that this is an effort to crack down on key far right propagandists as part of a larger crackdown in the wake of the January 6 insurrection.

There’s just one detail that suggests this might go further: the inclusion of a PIN prosecutor in the prosecution team.

Assistant U.S. Attorneys Erik Paulsen and Nathan Reilly of the Eastern District of New York, and Trial Attorney James Mann of the Criminal Division’s Public Integrity Section are prosecuting the case.

Among the other cases James Mann is or was prosecuting are the Andy Khawaja case funneling money from the UAE to both 2016 candidates (though only the Hillary side was charged; George Nader is one of the defendants) and the Elliot Broidy case, whose pardon will close out that case.

While his inclusion by no means makes this a certainty, it raises the chances that this social media activity will either be considered in the scope of campaign donations or might even involve foreign partners.

Peter Strzok Subpoenas Trump’s Soccer Ball from Putin

On December 11, Peter Strzok served a subpoena on the Trump for President with a deadline of December 30. Trump blew it off. Yesterday, Strzok filed a motion to show cause, arguing that Trump should be held in contempt for blowing off the subpoena and asking for a preservation order.

None of that is surprising.

What I’m a bit more intrigued by is one paragraph of the subpoena.

The subpoena asks for some things closely related to Strzok’s lawsuit, which argues DOJ released his text messages to Lisa Page in violation of his First Amendment rights and the Privacy Act, which in turn led to his termination. For example, it asks for all communications about those texts. It asks for all communications pertaining to Trump’s wish to have Strzok fired. It even asks for all documents,

concerning any wishes, desires, contemplations, plans, or efforts by Donald Trump, members of the Trump administration, or You to discredit the FBI, Mr. Strzok, Ms. Page, or the Mueller investigation.

If that request is broadly interpreted (and, again, Trump blew off his opportunity to object to the scope of the request), it’ll cover Trump actions right through the last moments of his Administration, when Trump attempted to declassify sensitive documents pertaining to the Crossfire Hurricane investigation.

But the request I’m most interested in asks for all documents “concerning links” between Trump, Putin, Russian oligarchs or banks, as well as any fear that such links might be discovered.

All documents concerning links between (a) Donald Trump, any immediate family member of Donald Trump, The Trump Organization, Jared Kushner, or You and (b) Vladimir Putin, agents of the Moscow Kremlin, Russian oligarchs, or any Russian banks or business enterprises; or document concerning fear that such connections would be uncovered by the Mueller investigation, the FBI, or any other agency or apparatus of the United States government.

While I was being somewhat facetious in this post’s headline about the subpoena including the soccer ball Putin gave Trump on July 16, 2018 — the soccer ball is not known to be a document, even as described broadly by the subpoena, though even Lindsey Graham suggested it might be more than a soccer ball — the request could be read to include a number of other things Trump has tried to suppress. Several examples include:

  • Any documented discussion that ties Trump’s refusal to release his tax returns to Russian funding
  • Any notes held by Trump Organization (as opposed to the Office of the President) recording discussions with Putin
  • The two gifts Aras Agalarov sent during the campaign, a $100,000 triptych painting and a book, both of which purportedly arrived on the same day as stolen emails were released; the communications around these gifts emphasize Agalarov’s concern with the timing of their delivery and in the second case make policy proposals
  • A January 2017 memo from Robert Foresman adapted from one an unnamed oligarch did, laying out Russia’s plans for better relations with Trump; Trump’s White House had tried to claim Executive Privilege over this document in document productions to SSCI
  • Emails from Russia’s Deputy Prime Minister, Sergei Prikhodko, inviting Trump to the June 2016 St. Petersburg International Economic Forum; there’s no formal record that Trump ever declined the invite and Foresman followed up on the invitation shortly thereafter

Strzok could make ample use of earlier documentation of Trump’s efforts to withhold documents from investigators to prove Trump for President is withholding responsive documents.

When Peter Strzok appeared on Meet the Press to pitch his book, Compromised, Todd asked him an uncharacteristically pointed question.

Todd: Given what happened to you, in this episode, um, do you look at what happened and say to yourself, I put myself in a compromising position, I shouldn’t have done that. And that’s on me. Or do you believe you were unfairly singled out?

Strzok: Well, Chuck, I understand that people would ask that question. I certainly regret sending the text messages that were absolutely weaponized and used to bludgeon the work of the FBI, the work of the Special Counsel. I’ll always regret that. But at the same time, the way that those were weaponized was unprecedented. And it is certainly part of a pattern of activity where this Administration has gone to lengths that no other Administration has ever done — that anybody who dares speak the truth or speak out, whether it is in the impeachment hearings with regard to Ukraine, the whistleblower, or anybody in any number of government agencies, if somebody dares speak the truth about this Administration, this Administration has shown no boundaries in going after people in ways that, frankly, is shocking, shocking and inappropriate.

Todd: Well,  and are you still confident the FBI’s immune from this? That you’re not used as this, okay, we sent the message, back off.

Strzok: I think the women and men that I know in the FBI, they’re brave and they’re fearless and they’re dedicated to doing the job and getting to the bottom of whatever lies in front of them. I can’t help though, but think that under an Attorney General who is sitting there day after day saying that there was no basis to launch these investigations in 2016, which is clearly, demonstrably ludicrous. There’s no way that doesn’t have a chilling effect on, not only the FBI, but all the branches and departments of the govern–the Executive Branch of the government. I think the FBI, the people that I know and knew, are holding. I am deeply concerned though what another four years of President Trump will to destroy the traditional independence and objectivity of our government.

Todd asked Strzok whether his texts with Page had been precisely what he warned against for so many years in government, saying or doing anything to make himself and — in this case — the FBI more vulnerable to being coerced into taking actions, or not, that undermined the good of the institution.

Strzok filibustered rather than admit it. But of course the texts did. And as Strzok suggested, it was just the first of many steps Trump took that affirmatively made the US less safe against Russian aggression, which all led up to the SolarWinds hack.

While it’s unclear whether Strzok will succeed in this effort, what he appears to be doing with his lawsuit is more than just obtaining recourse for the damage to his career and his reputation done by Trump’s attention. Rather, he seems intent on unpacking how and why Trump used his texts to compromise the US government.

Update: Corrected to note that this subpoena was served on Trump for President, not Trump Organization.

DOJ submitted a filing noting that while they had no objection to the filing of this motion they,

do not endorse the arguments made in support of Plaintiff’s motion regarding alleged motivations behind Plaintiff’s removal or the disclosure of text messages, or otherwise share in Plaintiff’s theory as to the relevance of the subpoenaed materials to Plaintiff’s case.

In November, Emmet Sullivan Suggested He Might Not Be Done with DOJ and Mike Flynn

I’d like to return to Judge Emmet Sullivan’s opinion dismissing the Mike Flynn case. This post was written at the time of the opinion.

As I noted at the time, Sullivan did several things in conjunction with the opinion.

The first thing he did was to strike some documents which the government had not authenticated in response to his order that they do so. That may be mere housekeeping, but at a time when it was effectively too late for the government to try to withdraw any of the other documents, it left those exhibits it had authenticated — with at times dodgy claims of authentication and in one case no claim (some Lisa Page and Peter Strzok texts, a significant portion of which were entirely off-topic, which the government admitted it had submitted for shits and giggles) — in his docket.

Then, he issued his order. In it, he granted one of the government’s two requests, to dismiss the case as moot. But in the same order, he denied the government’s motion to dismiss pursuant to Rule 48(a), denying it as moot.

This step may have more significance that most at first realized. That’s because by mooting DOJ’s effort to dismiss the prosecution pursuant to Rule 48(a), Sullivan refused to sanction the effort DOJ had been pursuing since May to undo the Flynn prosecution.

Once Sullivan issued the order mooting the case, DOJ was left with very little ground to further intervene, not least because they themselves declared the case moot.

Then Sullivan issued his opinion explaining how the case became moot. As I noted at the time, in the opinion he:

  • Affirmed the authority of a District Court to review whether a motion to dismiss serves the public good (but stopped short of doing so on mootness grounds)
  • Laid out evidence that the motion to dismiss was pretextual and corrupt (but stopped short of making that finding on mootness grounds)
  • Along the way, made judicial findings of fact regarding the propriety of the Mike Flynn investigation; effectively this was a ruling that the new reality Bill Barr attempted to create in Sullivan’s docket did not replace the prior reality DOJ had presented

I’ll elaborate on that below.

After having issued his opinion, Sullivan then denied as moot a number of other pending requests. With that order he mooted:

  • The government’s request that Flynn get a downward departure on sentencing
  • Flynn’s request to withdraw his guilty plea
  • Flynn’s request to dismiss the case based on a claim of prosecutorial misconduct
  • A Flynn request to force Covington & Burling to turn over an expansive set of documents, including their own internal discussions about ethics or about the case itself
  • A Flynn request to withdraw those three earlier requests
  • A really belated Flynn demand that Sullivan recuse from the case
  • Amicus John Gleeson’s request for clarification about what should happen given Flynn’s petition for a writ of mandamus
  • Flynn’s demand that Judge Sullivan strike the communications from Peter Strzok and Andrew McCabe about the alterations made to their documents submitted in the docket

Mostly, this is housekeeping, the mooting of all pending issues in the case. Except it has the effect of removing any claim that Flynn might have an interest in Sullivan’s recusal. Indeed, that’s a step Sullivan noted explicitly in the opinion.

In that motion Mr. Flynn requested, among other things, that the Court grant the government’s motion to dismiss pursuant to Rule 48(a) and that, upon dismissal of the case, the Court recuse itself from further proceedings. After the Court dismisses the case as moot pursuant to the presidential pardon, the Court will deny the motion for recusal as moot.

By mooting the motion to strike, Sullivan similarly moved any claim Flynn had in the Strzok and McCabe interventions going forward.

Of particular interest, that means that not only do DOJ’s dubiously authenticated documents remain before Sullivan, but so does the correspondence from Strzok and McCabe making it clear that their documents were altered (though their assertions that Jocelyn Ballantine lied to the court are not in the docket).

To sum up then: DOJ’s altered documents and evidence that they were altered remains before Sullivan, and any interest that DOJ or Flynn have in this docket — including a claim that Sullivan is biased and so must recuse — has been officially mooted.

With that background laid out, I want to look at a few more things that Sullivan did with his order.

  • Reaffirmed Flynn’s guilt as a legal question
  • Laid out the President’s interest in the pardon
  • Set the operative time of Flynn’s pardon
  • Did not address Flynn’s false statements before him
  • Observed the scope of the pardon but agreed that it covered Flynn’s false statements crime

Reaffirmed Flynn’s guilt as a legal question

First, Sullivan made it clear in several different ways that Flynn’s guilty verdict remains.

In the section laying out the posture of the case, Sullivan described how Flynn pled guilty twice.

Under oath and with the advice of counsel, Mr. Flynn pled guilty to the crime on December 1, 2017.

[snip]

On November 30, 2017, Mr. Flynn entered into a plea agreement with the government upon the advice of counsel. See Plea Agreement, ECF No. 3 at 10. Judge Rudolph Contreras accepted Mr. Flynn’s guilty plea on December 1, 2017, finding that Mr. Flynn entered the plea knowingly, voluntarily, and intelligently with the advice of counsel.

[snip]

On December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a second time. Sentencing Hr’g Tr., ECF No. 103 at 5, 16. During that hearing, the Court extended the plea colloquy in view of Mr. Flynn’s statements in his sentencing memorandum, which raised questions as to whether Mr. Flynn sought to challenge the conditions of the FBI interview. See generally Def.’s Mem. in Aid of Sentencing, ECF No. 50 at 6-18. Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 FBI interview and the allegations of misconduct against FBI officials. Id. at 11-12. And Mr. Flynn declined the Court’s invitation for the appointment of independent counsel to advise him. Id. at 9-10.

He also noted that when Flynn moved to dismiss his guilty plea, DOJ never got as far as responding (he doesn’t note that, rather than doing so, they moved to dismiss the prosecution).

The government did not file a response to Mr. Flynn’s motions to withdraw his guilty pleas due to its incomplete review of Mr. Flynn’s former counsel’s productions relevant to Mr. Flynn’s claims of ineffective assistance of counsel, as well as a dispute between Mr. Flynn and his former counsel.

Then, in the section on the legal status of a pardon, Sullivan emphasized that accepting a pardon may be an admission of guilt. Note the emphasis is Judge Sullivan’s.

On the other hand, a pardon does not necessarily render “innocent” a defendant of any alleged violation of the law. Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a “confession” of guilt. See Burdick, 236 U.S. at 94 (“[A pardon] carries an imputation of guilt; acceptance a confession of it.”); see also United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may imply a confession of guilt.” (citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994)). As Chief Justice Marshall wrote, “[a] pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. 150, 150 (1833) (emphasis added). In other words, “a pardon does not blot out guilt or expunge a judgment of conviction.” In re North, 62 F.3d at 1437. Furthermore, a pardon cannot “erase a judgment of conviction, or its underlying legal and factual findings.” Arpaio, 2017 WL 4839072, at *1 (citing United States v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004)); but see Schaffer, 240 F.3d at 38 (vacating “all opinions, judgments, and verdicts of this court and the District Court” where “[f]inality was never reached on the legal question of [the defendant’s] guilt” (emphasis added)).

After citing the Arpaio precedent, where the corrupt sheriff tried to expunge his guilty status, Sullivan then cited the Schaffer precedent in the DC Circuit treating the question of a defendant’s guilt as a legal question, not a political one. Sullivan added emphasis to four things in this opinion. Two of them, appearing in this passage, focus on two circumstances that mean Flynn is still guilty of his crimes. By giving Flynn a pardon, Trump excused the consequences for his crimes, but he didn’t change the legal fact that Flynn was guilty, and Flynn’s own acceptance of the pardon imputes that he committed the crime.

Note, I don’t think Sullivan was making a general comment about pardons generally (and I also think it a mistake to read his citation to Burdick as a general comment about accepting pardons amounting to an admission of guilty; he instead seems to be saying it might be). He was making a comment about this one, the legal question before him. Sullivan issued a ruling, then, that circuit and Supreme Court precedent mean that Flynn’s guilty verdict remains and that by accepting a pardon, he confessed to his guilt.

Laid out Trump’s interest in the pardon

Before the sections in which Sullivan analyzes why DOJ’s claims in moving to dismiss the prosecution are bunk, Sullivan first described how interested Trump was in Flynn’s prosecution. Along the way, he notes Sidney Powell’s admission at a September hearing that she had spoken with Trump and asked Trump not to pardon Flynn.

For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id.

At the September 29, 2020 motion hearing, Mr. Flynn’s counsel, in response to the Court’s question, stated that she had, within weeks of the proceeding, provided the President with a brief update on the status of the litigation. Hr’g Tr., ECF No. 266 at 56:18-20. Counsel further stated that she requested that the President not issue a pardon. Id. at 56:23-24. However, the President has now pardoned Mr. Flynn for the actions that instigated this case, among other things. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s “running commentary,” many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President.” See, e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec. 28, 2017), https://www.nytimes.com/2017/12/28/us/politics/trumpinterview-excerpts.html) (reporting President Trump’s statement that he enjoys the “absolute right to do what I want to do with the Justice Department”).

Given this context, the new legal positions the government took in its Rule 48(a) motion and at the motion hearing raise questions regarding its motives in moving to dismiss.

That is, it was in light of Trump’s claimed “absolute right to do what [he wants with DOJ],” that Sullivan reviewed DOJ’s claimed excuses for blowing up the prosecution and found them pretextual.

Set the operative time of Flynn’s pardon

Perhaps most curiously, Sullivan went to some lengths to mark the precise time of Flynn’s pardon: November 25, 2020, at 4:08PM ET.

Rather than treating the filing of the notice of appeal or the appeal itself (the time of which is suspect) as operative, Sullivan instead treated Trump’s tweet announcing the pardon as definitive, going so far as including a legal basis to depend on Trump’s Tweets as operative.

On November 25, 2020, President Trump granted Mr. Flynn a “full and unconditional pardon” for: (1) “the charge of making false statements to Federal investigators,” in violation of 18 U.S.C. § 1001, as charged in the Information in this case; (2) “any and all possible offenses arising from the facts set forth in the Information and Statement of Offense” filed in this case “or that might arise, or be charged, claimed, or asserted, in connection with the proceedings” in this case; (3) “any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel appointed on May 17, 2017, including the initial Appointment Order No. 3915-2017 and subsequent memoranda regarding the Special Counsel’s investigatory authority”; and (4) “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings” in this District or in the United States District Court for the Eastern District of Virginia. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1; see also Donald Trump (@realDonaldTrump), Twitter (Nov. 25, 2020, 4:08 PM), https://twitter.com/realDonaldTrump/status/1331706255212228608.6

6 The Court takes judicial notice of President Trump’s tweet as the veracity of this statement “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017), vacated on other grounds, 138 S. Ct. 377 (2017).

Only after pointing to Trump’s tweet of 4:08PM on November 25, 2020 as the operative moment of Trump’s pardon of Flynn did Sullivan mention the filings in his docket as basis for the proof that Flynn had accepted the pardon.

Mr. Flynn accepted the pardon, and Mr. Flynn and the government subsequently moved to dismiss this case as moot. See Consent Mot. Dismiss, ECF No. 308 at 2.

I don’t know why Sullivan did this. But he did. He set a time — 4:08 PM ET on November 25, 2020 — when Trump’s pardon of Flynn went into effect, based on the legal authority of Trump’s Tweet, and then made it clear that after the time of the pardon, Flynn accepted it.

Did not address Flynn’s false statements before him

Almost as interesting as the way Sullivan set the precise time when Trump issued a pardon for Flynn is what Sullivan did with the lies Flynn told in his own court. As a reminder, Flynn submitted a declaration that materially conflicted with sworn statements he had made before two judges and the grand jury. When he appointed John Gleeson, Judge Sullivan asked Gleeson to review whether he should consider holding Flynn in criminal contempt. When he reviewed that in his history of the case, Sullivan stated that Gleeson had convinced him that holding Flynn in contempt would be an atypical way of dealing with the issue.

On May 13, 2020, the Court appointed John Gleeson (“Mr. Gleeson”) as amicus curiae to present arguments in opposition to the government’s Rule 48(a) motion and to address whether Mr. Flynn should be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401; Federal Rule of Criminal Procedure 42; the Court’s inherent authority; and any other applicable statutes, rules, or controlling law.3

3 The Court is persuaded by the arguments presented that issuing an Order to Show Cause would amount to an atypical action and so does not address this issue in this Memorandum Opinion.

Gleeson had favored taking Flynn’s further perjury into account at sentencing, but now Sullivan won’t be sentencing Flynn. DOJ had said that the proper way to deal with such perjury is to refer it to DOJ for prosecution.

Sullivan’s language here didn’t say he’s not going to deal with Flynn’s perjury; rather, he just said he’s not dealing with it in this particular opinion.

Observed the scope of the pardon but agreed that it covered the issues in this docket

That’s important for Sullivan’s discussion of the power of Trump’s pardon. Sullivan laid out the awesome scope of the pardon power. Before he did so, though, he first laid out the power of the courts to interpret the law, including the scope of the pardon power specifically, tying the pardon power to Marbury versus Madison.

Though the Constitution confers the pardoning power on the President generally, it is well-established that “the judiciary has served as the supreme interpreter of the scope of the constitutional powers since Marbury v. Madison.” See William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 506 (1977); see also Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

[snip]

Thus, the Supreme Court in Marbury laid the foundation for the view that the President has a “general, unqualified grant of power to pardon offenses against the United States.” The Laura, 114 U.S. 411, 413 (1885).

Among the judgements he relies on showing the Supreme Court exercising judicial review and finding the pardon power unlimited, however, Sullivan cites language noting that pardons can only be issued after their commission.

In view of the principles set out in Marbury, the Supreme Court thereafter instructed that the President’s power to pardon is “granted without limit.” United States v. Klein, 80 U.S. 128, 147 (1871); see also Ex parte Garland, 71 U.S. 333, 380 (1866) (“This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”). The “executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.” Ex parte Grossman, 267 U.S. 87, 120 (1925) (emphasis added).

This was the third of four things to which Sullivan added emphasis in his opinion — that according to Supreme Court precedent, pardons can only issue after the offense has been committed.

And that’s interesting, in an opinion that marked the exact moment when this pardon was granted, in the language Sullivan used to apply the precedent he reviews on pardons to the pardon before him.

Sullivan observed that the pardon itself is very broad, observing as I did that the pardon “purports to apply to “any and all possible offenses” that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation.” But then Sullivan said the only decision before him was just the crime Flynn twice pled guilty to.

Here, the scope of the pardon is extraordinarily broad – it applies not only to the false statements offense to which Mr. Flynn twice pled guilty in this case, but also purports to apply to “any and all possible offenses” that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. However, the Court need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case. Mr. Flynn has accepted President Trump’s “full and unconditional pardon.” See Consent Mot. Dismiss, ECF No. 308 at 2. The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot. However, the pardon “does not, standing alone, render [Mr. Flynn] innocent of the alleged violation” of 18 U.S.C. § 1001(a)(2). Schaffer, 240 F.3d at 38. Accordingly, in view of the Supreme Court’s expansive view of the presidential pardon power, the Court grants the consent motion to dismiss this case as moot. See, e.g., id. [my emphasis]

Of course, that’s not all that DOJ had asserted were before Sullivan. It had also included the Turkey FARA crimes (which were a benefit of Flynn’s guilty plea) and the lies Flynn told before Sullivan and the grand jury. This opinion is silent on the pardon’s applicability to them, even though both crimes were committed before the pardon.

The language at the end here may become important in the future. As noted above, DOJ had asked Sullivan both to dismiss the prosecution and to moot it. Sullivan did only the latter, asserting that the pardon only extends to political questions, not legal ones. Even as he made that distinction, he reemphasized that Flynn was guilty of the crime he was being pardoned for.

Whatever else he did, Sullivan made it clear that, under pressure from the President, DOJ went to some lengths to try to exonerate a guilty man.

Update, January 21: In a media lawsuit asking for the declassification of documents pertaining to Flynn’s sentencing as well as the one for his warrants, Judge Sullivan issued an order on Tuesday (the day before inauguration), for a status update on remaining sealed language to be submitted on January 26. I don’t expect much new to be declassified. There’s one passage about Flynn’s cooperation that DOJ might be able to unseal; given the focus of questions in Flynn’s early interviews, I wonder if it pertained to Flynn’s involvement in the fall 2016 Egyptian discussions that Mueller suspected ended up in a $10 million bribe, an investigation that was closed by Bill Barr since the last unsealing. But I do expect it will reveal whether Jocelyn Ballantine under whose discretion altered documents were submitted to the main Flynn docket, remains the AUSA in control of this case.

Update: This post seems rather quaint given how Mike Flynn called for martial law twice in the lead up to his QAnon followers attacking the Capitol. And as WaPo reported last night, Mike Flynn’s brother, Lieutenant General Charles Flynn, was part of the DOD call that responded slowly to deploying the National Guard as the insurgents overran the Capitol.

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