Citing Presumption of Regularity, DC Circuit Rules against Emmet Sullivan to Prevent Embarrassing Billy Barr

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Neomi Rao just ruled against Emmet Sullivan in “Mike Flynn’s” petition for a writ of mandamus. She did so on two grounds. First, DOJ is entitled to a presumption of regularity, something I predicted would be central to this (under binding precedent, it takes a great deal to be able to argue something is awry at DOJ).

The government’s representations about the insufficiency of the evidence are entitled to a “presumption of regularity … in the absence of clear evidence to the contrary.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotation marks omitted). On the record before the district court, there is no clear evidence contrary to the government’s representations. The justifications the district court offers in support of further inquiry—for instance, that only the U.S. Attorney signed the motion, without any line prosecutors, and that the motion is longer than most Rule 48(a) motions—are insufficient to rebut the presumption of regularity to which the government is entitled.

She also argued that DOJ was correcting itself, though without laying out any basis that DOJ had found that it had made an error.

Finally, each of our three coequal branches should be encouraged to self-correct when it errs. If evidence comes to light calling into question the integrity or purpose of an underlying criminal investigation, the Executive Branch must have the authority to decide that further prosecution is not in the interest of justice.2 As the Supreme Court has explained, “the capacity of prosecutorial discretion to provide individualized justice is firmly entrenched in American law. …

This is particularly ridiculous given that, in its most recent filing, DOJ made clear that DOJ had not erred. Nevertheless, this argument was likely critical to getting Karen Henderson on board; I had noted Henderson raised this right at the end of the arguments as a potential way to side with Rao.

At the very end of the hearing, she invited Principal Deputy Solicitor General Jeff Wall to address a claim made in DOJ’s brief: that DOJ should be permitted to self-correct the harm of a bad faith prosecution. So she may have been reserving that as a reason to rule for Flynn — ultimately ruling instead for DOJ. But her comments through the rest of the hearing suggest this petition will fail.

Of significant import, Rao’s opinion makes no attempt to defend Flynn’s argument. Rather, her order is entirely about preventing DOJ — Bill Barr — from the embarrassment of being forced to explain his decision.

In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power. The contemplated proceedings would likely require the Executive to reveal the internal deliberative process behind its exercise of prosecutorial discretion, interfering with the Article II charging authority. Newman, 382 F.2d at 481 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)). Thus, the district court’s appointment of the amicus and demonstrated intent to scrutinize the reasoning and motives of the Department of Justice constitute irreparable harms that cannot be remedied on appeal. See Cobell, 334 F.3d at 1140 (“[I]nterference with the internal deliberations of a Department of the Government of the United States … cannot be remedied by an appeal from the final judgment.”); see also Cheney, 542 U.S. at 382.

We must also assure ourselves that issuance of the writ “is appropriate under the circumstances.” Cheney, 542 U.S. at 381. The circumstances of this case demonstrate that mandamus is appropriate to prevent the judicial usurpation of executive power. The first troubling indication of the district court’s mistaken understanding of its role in ruling on an unopposed Rule 48(a) motion was the appointment of John Gleeson to “present arguments in opposition to the government’s Motion.” Order Appointing Amicus Curiae, No. 1:17-cr-232, ECF No. 205, at 1 (May 13, 2020) (emphasis added). Whatever the extent of the district court’s “narrow” role under Rule 48(a), see Fokker Servs., 818 F.3d at 742, that role does not include designating an advocate to defend Flynn’s continued prosecution. The district court’s order put two “coequal branches of the Government … on a collision course.” Cheney, 542 U.S. at 389. The district court chose an amicus who had publicly advocated for a full adversarial process. Based on the record before us, the contemplated hearing could require the government to defend its charging decision on two fronts— answering the district court’s inquiries as well as combatting Gleeson’s arguments. Moreover, the district court’s invitation to members of the general public to appear as amici suggests anything but a circumscribed review. See May 12, 2020, Minute Order, No. 1:17-cr-232. This sort of broadside inquiry would rewrite Rule 48(a)’s narrow “leave of court” provision.

And we need not guess if this irregular and searching scrutiny will continue; it already has. On May 15, Gleeson moved for permission to file a brief addressing, among other things, “any additional factual development [he] may need before finalizing [his] argument” and suggesting a briefing and argument schedule. Mot. to File Amicus Br., No. 1:17-cr-232, ECF No. 209, at 1–2 (May 15, 2020). The district court granted the motion and then set a lengthy briefing schedule and a July 16, 2020, hearing. See May 19, 2020, Minute Order, No. 1:17- cr-232. In his brief opposing the government’s motion, Gleeson asserted the government’s reasons for dismissal were “pretext” and accused the government of “gross prosecutorial abuse.” Amicus Br., No. 1:17-cr-232, ECF No. 225, at 38–59 (June 10,

2020). He relied on news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases. See id. at 43, 46–47, 57–59. These actions foretell not only that the scrutiny will continue but that it may intensify. Among other things, the government may be required to justify its charging decisions, not only in this case, but also in the past or pending cases cited in Gleeson’s brief. Moreover, Gleeson encouraged the district court to scrutinize the government’s view of the strength of its case—a core aspect of the Executive’s charging authority. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (condemning district court’s failure to dismiss criminal charges based on its view that “the government has exaggerated the risk of losing at trial”). As explained above, our cases are crystal clear that the district court is without authority to do so. See Fokker Servs., 818 F.3d at 742; Ammidown, 497 F.2d at 623.

This order is entirely about preventing Billy Barr from embarrassment. It has zero to do with Mike Flynn’s case.

Robert Wilkins wrote a dissent that makes a lot of sound points that — if Sullivan chooses to ask for an en banc hearing — might be very powerful. I’ll lay those out in an update.

The World’s Biggest Donald Trump Fan Believes Donald Trump Is Lying about COVID

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Roger Stone has been one of Donald Trump’s biggest boosters for decades. But Stone’s actions make it clear he believes Trump is lying about the risks of COVID.

Yesterday, Stone’s lawyers moved to delay the date when he’ll have to report to prison 60 days (he has already gotten a 30-day extension). They claim that going to prison — even a prison that has had no recorded cases of COVID — will be life-threatening to Stone, for medical reasons filed under seal.

Those medical conditions make the consequences of his exposure to the COVID-19 virus in a prison facility life-threatening. The threat of exposure, given the current status of COVID-19 within BOP facilities and the lack of testing, is compelling.

The severity of the circumstances is highlighted by the fact that the Attorney General issued memoranda directing the BOP to release prisoners at risk from COVID-19 infection. Memorandum from the Attorney General to the Director of the Bureau of Prisons, regarding “Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic,” dated March 26, 2020; Memorandum from the Attorney General to the Director of the Bureau of Prisons, regarding “Increasing Use of Home Confinement at Institutions Most Affected by COVID-19,” dated April 3, 2020.

[snip]

While the BOP website currently does not show any inmates with the COVID-19 virus at FCI Jesup, it reports that there are 25 tests pending. https://www.bop.gov/coronavirus/. 1 Given that the BOP does not routinely test inmates,2 combined with the relatively high positivity results in BOP facilities,3 the pending tests do not bode well.

Of course, Donald Trump doesn’t appear to believe that COVID is life-threatening, because he keeps scheduling indoor rallies where he packs people closer together than even a prison, if only for two hours. Sure, he makes attendees sign away their right to sue.

But if it’s safe for the President to pack people in closed spaces to feed his ego, it is safe for the US government to put Roger Stone in a prison facility to punish him for protecting the President.

Likewise, if Americans don’t need access to testing to assess the risk of COVID, then neither does Roger Stone.

Stone’s filing claims that the US Attorney’s office doesn’t object to his request.

The defense contacted the United States Attorney’s Office to ascertain its position on this motion, and was informed that, based on the Department of Justice’s and the Executive Office of United States Attorneys’ guidance on the handling of voluntary surrender dates during the pandemic at this point in time, it does not oppose a 60-day extension of Stone’s surrender date.

But as Politico noted, in addition to some wails about an attempt to kill him posted on Instagram, Stone also posted on Friday that the US Attorney’s Office did object to his delay.

In a video posted on Instagram Friday, Stone said the U.S. Attorney’s Office turned down his request to delay his prison report date, but Stone’s lawyers said in their court filing Tuesday that prosecutors were not opposed to giving him an additional two months to report.

Perhaps given the proof that Trump has the ability to cow the DC US Attorney to show favors on Trump’s buddies, Judge Amy Berman Jackson is taking no chances. She is asking DOJ to certify to what Stone has claimed.

MINUTE ORDER as to ROGER J. STONE, JR. It is ORDERED that the government must file a submission setting forth its position on defendant’s motion to extend his surrender date [381], and its reasons for that position, in writing. The government must also inform the Court of the results of the COVID-19 tests at FCI Jesup that were described in the motion as pending at the time it was filed. The government’s submission is due by June 25, 2020. 

It will be interesting to see whether line AUSAs will sign such a filing.

Whatever ABJ decides to do with Stone, reporters should not let this double standard pass. If even being in a prison during the pandemic will kill Roger Stone, then being in a packed Trump rally likely poses a deadly risk as well. If COVID poses a risk to his buddies, then it’s time Trump started treating COVID as a risk to every American.

Even the First Roger Stone Sentencing Memo Was Politicized

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Mueller prosecutor Aaron Zelinsky’s testimony for a House Judiciary Committee hearing on how Trump and Barr are politicizing DOJ has been released. As a number of outlets are reporting, he will testify about how, when Bill Barr flunky Timothy Shea was bending to pressure to “cut Stone a break,” Shea did so because he was “afraid of the President.”

I’m more interested in a few details about the actual drafting of the memos, some of which I’ll return to. The original draft of the sentencing memo was drafted by February 5; it was not only approved, but deemed “strong.”

The prosecution team – which consisted of three career prosecutors in addition to myself – prepared a draft sentencing memorandum reflecting this calculation and recommending a sentence at the low end of the Guidelines range. We sent our draft for review to the leadership of the U.S. Attorney’s Office. We received word back from one of the supervisors on February 5, 2020, that the sentencing memo was strong, and that Stone “deserve[d] every day” of our recommendation.

On February 7, the hierarchy started intervening. In addition to asking to drop the enhancements (which is what the final memo did), DOJ big-wigs also asked prosecutors to take out language about Stone’s conduct.

However, just two days later, I learned that our team was being pressured by the leadership of the U.S. Attorney’s Office not to seek all of the Guidelines enhancements that applied to Stone – that is, to provide an inaccurate Guidelines calculation that would result in a lower sentencing range. In particular, there was pressure not to seek enhancements for Stone’s conduct prior to trial, the content of the threats he made to Credico, and the impact of his obstructive acts on the HPSCI investigation. Failure to seek these enhancements would have been contrary to the record in the case and to the Department’s policy that the government must ensure that the relevant facts and sentencing factors are brought to the court’s attention fully and accurately.

When we pushed back against incorrectly calculating the Guidelines, office leadership asked us instead to agree to recommend an open-ended downward variance from the Guidelines –to say that whatever the Guidelines recommended, Stone should get less. We repeatedly argued that failing to seek all relevant enhancements, or recommending a below-Guidelines sentence without support for doing so, would be inappropriate under DOJ policy and the practice of the D.C. U.S. Attorney’s Office, and that given the nature of Stone’s criminal activity and his wrongful conduct throughout the case, it was not warranted.

In response, we were told by a supervisor that the U.S. Attorney had political reasons for his instructions, which our supervisor agreed was unethical and wrong. However, we were instructed that we should go along with the U.S. Attorney’s instructions, because this case was “not the hill worth dying on” and that we could “lose our jobs” if we did not toe the line.

We responded that cutting a defendant a break because of his relationship to the President undermined the fundamental principles of the Department of Justice, and that we felt that was an important principle to defend.

Meanwhile, senior U.S. Attorney’s Office leadership also communicated an instruction from the acting U.S. Attorney that we remove portions of the sentencing memorandum that described Stone’s conduct. Again, this instruction was inconsistent with the usual practice in the U.S. Attorney’s Office, and with the Department’s policy that attorneys for the government must ensure that relevant facts are brought the attention of the sentencing court fully and accurately.

Ultimately, we refused to modify our memorandum to ask for a substantially lower sentence. Again, I was told that the U.S. Attorney’s instructions had nothing to do with Mr. Stone, the facts of the case, the law, or Department policy. Instead, I was explicitly told that the motivation for changing the sentencing memo was political, and because the U.S. Attorney was “afraid of the President.”

Ultimately, Tim Shea approved the prosecutors’ inclusion of the enhancements, but took out the language about Stone’s conduct.

On Monday, February 10, 2020, after these conversations, I informed leadership at the U.S. Attorney’s Office in D.C. that I would withdraw from the case rather than sign a memo that was the result of wrongful political pressure. I was told that the acting U.S. Attorney was considering our recommendation and that no final decision had been made.

At 7:30PM Monday night, we were informed that we had received approval to file our sentencing memo with a recommendation for a Guidelines sentence, but with the language describing Stone’s conduct removed. We filed the memorandum immediately that evening.

That means even the first sentencing memo — the one that made a strong case for prison time — had been softened by Barr’s flunkies, in some way not laid out in Zelinsky’s opening statement.

Here’s the first sentencing memo. One thing lacking from that memo — but in Zelinsky’s opening statement — pertains to Stone’s discussions directly with Trump.

And that summer, Stone wasn’t just talking to the CEO, Chairman, and Deputy Chairman of the campaign. He was talking directly to then-candidate Trump himself.

On June 14, 2016, the Democratic National Committee (DNC) announced that it had been hacked earlier that spring by the Russian Government. That evening, Stone called Trump, and they spoke on Trump’s personal line. We don’t know what they said.

On August 2, [sic — this should be July 31] Stone again called then-candidate Trump, and the two spoke for approximately ten minutes. Again, we don’t know what was said, but less than an hour after speaking with Trump, Stone emailed an associate of his, Jerome Corsi, to have someone else who was living in London “see Assange.”

Less than two days later, on August 2, 2016, Corsi emailed Stone. Corsi told Stone that, “Word is friend in embassy [Assange] plans 2 more dumps. One “in October” and that “impact planned to be very damaging,” “time to let more than Podesta to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about.”

Around this time, Deputy Campaign Chairman Gates continued to have conversations with Stone about more information that would be coming out from WikiLeaks. Gates was also present for a phone call between Stone and Trump. While Gates couldn’t hear the content of the call, he could hear Stone’s voice on the phone and see his name on the caller ID. Thirty seconds after hanging up the phone with Stone, then-candidate Trump told Gates that there would be more information coming. Trump’s personal lawyer, Michael Cohen, also stated that he was present for a phone call between Trump and Stone, where Stone told Trump that he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information, and Trump responded, “oh good, alright.” Paul Manafort also stated that he spoke with Trump about Stone’s predictions and his claimed access to WikiLeaks, and that Trump instructed Manafort to stay in touch with Stone.

Surely there’s someone sharp enough on HJC who can note this discrepancy and ask Zelinsky whether there was similar language in the sentencing memo that Tim Shea took out because he’s “afraid of the President.”

Zelinsky knows little about the drafting of the second memo — he describes that he heard about it in the press and the rest of his understanding appears to come from what he was told in the office.

What he was told was that DOJ actually considered attacking its own prosecutors in the memo.

We repeatedly asked to see that new memorandum prior to its filing. Our request was denied. We were not informed about the content or substance of the proposed filing, or even who was writing it. We were told that one potential draft of the filing attacked us personally.

This is akin to the Mike Flynn motion to dismiss, which insinuated that prosecutors had engaged in misconduct. The Attorney General and his flunkies are attacking career officials at DOJ to perform for the President like trained seals.

In the passage where Zelinsky offers his opinion of that second memo he notes that it matched Trump’s tweet of the interim day.

The new filing stated that the first memo did not “accurately reflect” the views of the Department of Justice. This new memo muddled the analysis of the appropriate Guidelines range in ways that were contrary to the record and in conflict with Department policy. The memo said that the Guidelines were “perhaps technically applicable,” but attempted to minimize Stone’s conduct in threatening Credico and cast doubt on the applicability of the resulting enhancement, claiming that the enhancement “typically” did not apply to first time offenders who were not “part of a violent criminal organization.” The memo also stated that Stone’s lies to the Judge about the meaning of the image with the crosshairs and how it came to be posted on Instagram “overlaps to a degree with the offense conduct in this case,” and therefore should not be the basis for an enhancement.

The new memo did not engage with testimony in the record about Credico’s concerns. Nor did the new memo engage with cases cited in the old memo where the obstruction enhancement was applied to non-violent first-time offenders. And the memo provided no analysis for why Stone’s lies to Congress regarding WikiLeaks overlapped at all with his lies two years later to the judge about his posting images of her with a crosshairs. The new memo also stated that the court should give Stone a lower sentence because of his “health,” though it provided no support for that contention, and the Guidelines explicitly discourage downward adjustments on that basis.

Ultimately, the memo argued, Stone deserved at least some time in jail– though it did not give an indication of what was reasonable. All the memo said was that a Guidelines sentence was “excessive and unwarranted,” matching the President’s tweet from that morning calling our recommendation “horrible and very unfair.” [my emphasis]

Zelinsky’s read of that second memo also complains that it left out the record on Randy Credico’s response to Stone’s threats. In his opening statement, he provides this detail, which I don’t recall from the trial (Amy Berman Jackson was able to rely on Credico’s grand jury transcript in her sentencing, because Stone had submitted that with one of his filings).

Then, fearful of what Stone’s associates might do to him, Credico moved out of his house and wore a disguise when going outside.

Credico explains that he grew a thick mustache and wore a cap and sunglasses. Dressing up as John Bolton is indeed a fearful disguise.

The detail that Credico moved out of his house, taken in conjunction with the detail from the Stone warrants that Stone hired a private investigator to find an address to “serve” Credico with a subpoena he never served him, is especially chilling.

Stone hired a PI to hunt Credico down after Credico took measures to hide from him and (Credico has always emphasized) Stone’s violent racist friends.

In addition to making it clear that Shea politicized even the first memo in some way, Zelinsky hints at ways that Stone’s witness tampering was more aggressive than widely understood.

Let’s hope those details come out in tomorrow’s hearing.

On Rod Rosenstein’s Professed Unfamiliarity with the Mueller Report

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Something happened in a Senate Judiciary Committee hearing earlier this month that is interesting background to some of the details about the Mueller Investigation that have come out of late.

The guy who oversaw the Mueller Report appears unfamiliar with the Mueller Report

In the hearing, Dick Durbin tried to get Rod Rosenstein to defend the investigation he had overseen. Early on in the exchange, Rosenstein claimed that,

I do not consider the investigation to be corrupt, Senator, but I certainly understand, I understand the President’s frustration given the outcome, which was in fact that there was no evidence of conspiracy between Trump campaign advisors and Russians.

That’s of course not what the Report said at all. Rather, it said that,

[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

[snip]

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Had Durbin been prepared for this answer, he might have invited Rosenstein to quote where the Report says that there was no evidence of conspiracy, which he would have been unable to do. Instead, Durbin asked Rosenstein whether he agreed with several other things that (he claimed) the report said:

  • The Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome
  • There were more than 120 contacts between the Trump campaign and individuals linked to Russia
  • The Trump campaign “knew about, welcomed, and expected to benefit electorally from Russia’s interference”
  • The Trump campaign planned a messaging strategy around the WikiLeaks releases

In response to the first, Rosenstein claimed he didn’t know what the government (of Russia, apparently) was thinking, but could only say what their conduct was. To the second, Rosenstein said he had no reason to dispute the finding, though did not acknowledge directly that that’s what the report said.

In response to the third, Rosenstein asked Durbin what page he was referring to. Durbin claimed, incorrectly, it appeared on pages 1 to 2. Rosenstein made a great show of paging through the report, seemingly reading the passage in question, and said, “I’m not sure whether you were quoting from the Report or not Senator, but I have it in front of me … I apologize sir, I’m not seeing those words in the report if you could direct me to where it is in the report.”

In response to the fourth assertion, Rosenstein noted that that specific point says, “according to Mr. Gates, that’s attributed to Mr. Gates, I don’t think that’s a finding of the, Mueller, it’s what one of the … witnesses said.”

To be fair to Rosenstein, the exact words Durbin read do not appear in the report, just as “there was no evidence of conspiracy” does not appear in the report. Just the phrase, “the Campaign expected it would benefit electorally from information stolen and released through Russian efforts,” appears on pages 1 and 2 — though even that, Rosenstein was too cowardly to acknowledge. But unlike Rosenstein’s claim that the report showed no evidence of conspiracy, the rest of Durbin’s statement is backed by the report. On page 5, for example, the report explains that Trump showed interest in and welcomed the releases.

The presidential campaign of Donald J. Trump (“Trump Campaign” or “Campaign”) showed interest in WikiLeaks’s releases of documents and welcomed their potential to damage candidate Clinton.

And as for only Rick Gates describing a focused campaign effort to prepare for the WikiLeaks release, other witnesses, including campaign manager Paul Manafort, described similar obsession with the emails. At least five different witnesses gave testimony consistent with Gates’, and not all the people involved in such discussions were quoted in the Mueller Report.

Given Mueller’s own need to refer to the report and strict adherence to the specific language in the report when he testified before Congress, I can’t complain that Rosenstein seemed even less familiar with the contents of the report than Mueller (and elsewhere Rosenstein confessed he was uncertain about other key details). But my big takeaway from his testimony — aside from the fact that he seems intent on saying what Bill Barr, Donald Trump, and Lindsey Graham want him to say, whether or not it accords with reality — is that he exhibited none of the familiarity with the report I expected he would have.

It seems an important lesson. Rod Rosenstein, with no apparent familiarity with the report’s actual content, instead adopted the false lines that Trump and Barr have about the investigation, incorporating the ones on Barr’s four-page memo misrepresenting the findings, including where the memo neglected to provide the lead-up to the quotation that, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Ed O’Callaghan (and Steve Engel) wrote Barr’s declination, not Rosenstein

That’s one reason I think the memo that Steven Engel and Ed O’Callaghan wrote Billy Barr on March 24, 2019 recommending he decline to prosecute the President is probably the most interesting Mueller-related release from Friday. In actuality, DOJ released just the first and last page of the memo, and redacted all the justifications. But the first page shows that Engel — who as OLC head should have absolutely zero input into the specifics of a criminal declination, particularly regarding a report that presumed OLC had ruled out such prosecutions categorically — and O’Callaghan wrote the actual declination of Trump. The memo only went “through” Rosenstein (though Rosenstein definitely initialed it).

About half that first page is redacted, but not a footnote that says,

Given the length and detail of the Special Counsel’s Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding the Special Counsel’s investigation.

I have every reason to believe that O’Callaghan, unlike Rosenstein, is reasonably familiar with the workings of the Mueller Report (but Rosenstein must have gotten his misunderstandings of what it showed from O’Callaghan).

But whatever logic is laid out in that memo, the discussion apparently does not tie closely to the actual facts.

That means both Barr and Rosenstein could well have approved it without any familiarity with the actual facts.

In spite of Rosenstein’s ignorance, DOJ had to read about Roger Stone’s cover-up closely to redact it

Rosenstein’s professed lack of familiarity with Trump’s enthusiasm to exploit the WikiLeaks release is interesting given how important it had to have been in March 2019, when Mueller was publishing his conclusions. That’s because it was the one ongoing proceeding treated as such in the report release. So a great deal of the report got redacted — properly — in the interest of protecting Roger Stone’s right to a fair trial. Someone at DOJ — and the process may have been overseen by O’Callaghan — had to have read the Stone details closely if only to make sure none of the rest of us could.

That said, even before DOJ released the report, it was immediately clear how inconsistent the Stone findings were with Billy Barr’s public statements. Barr’s categorical comments about conspiracy pertained only to conspiring directly with Russia, which allowed him to make assertions that completely ignored Stone’s attempts — via means that have not yet been made public — to optimize the WikiLeaks releases.

On Friday, all the things that Barr was covering up became public in one narrative.

There was very little that had not been previously published in Friday’s release of the report. The details in the report showed up in Stone’s prosecution, the trial, and the warrants released in April. But the description of how many witnesses knew of Trump and Stone’s focus on the releases — including those like Paul Manafort and Steve Bannon who always tried to protect Trump in their testimony — sure does make Rosenstein’s denials look deliberate.

In debriefings with the Office, former deputy campaign chairman Rick Gates said that, before Assange’s June 12 announcement, Gates and Stone had a phone conversation in which Stone said something “big” was coming and had to do with a leak of information.195 Stone also said to Gates that he thought Assange had Clinton emails. Gates asked Stone when the information was going to be released. Stone said the release would happen very soon. According to Gates, between June 12, 2016 and July 22, 2016, Stone repeated that information was coming. Manafort and Gates both called to ask Stone when the release would happen, and Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found.196

Paul Manafort, who would later become campaign chairman, provided similar information about the timing of Stone’s statements about WikiLeaks.197 According to Manafort, sometime in June 2016, Stone told Manafort that he was dealing with someone who was in contact with WikiLeaks and believed that there would be an imminent release of emails by WikiLeaks.19

Michael Cohen, former executive vice president of the Trump Organization and special counsel to Donald J. Trump,199 told the Office that he recalled an incident in which he was in candidate Trump’s office in Trump Tower when Stone called. Cohen believed the call occurred before July 22, 2016, when WikiLeaks released its first tranche of Russian-stolen DNC emails.200 Stone was patched through to the office and placed on speakerphone. Stone then told the candidate that he had just gotten off the phone with Julian Assange and in a couple of days WikiLeaks would release information. According to Cohen, Stone claimed that he did not know what the content of the materials was and that Trump responded, “oh good, alright” but did not display any further reaction.201 Cohen further told the Office that, after WikiLeaks’s subsequent release of stolen DNC emails in July 2016, candidate Trump said to Cohen something to the effect of, “I guess Roger was right.”202

After WikiLeaks’s July 22, 2016 release of documents, Stone participated in a conference call with Manafort and Gates. According to Gates, Manafort expressed excitement about the release and congratulated Stone.203 Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump and mentioned that Stone had predicted the release and claimed to have access to WikiLeaks. Candidate Trump responded that Manafort should stay in touch with Stone.204 Manafort relayed the message to Stone, likely on July 25, 2016.205 Manafort also told Stone that he wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch with Stone about future WikiLeaks releases.206

According to Gates, by the late summer of 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks.207 Gates also stated that Stone called candidate Trump multiple times during the campaign.208 Gates recalled one lengthy telephone conversation between Stone and candidate Trump that took place while Trump and Gates were driving to LaGuardia Airport. Although Gates could not hear what Stone was saying on the telephone, shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.209

Stone also had conversations about WikiLeaks with Steve Bannon, both before and after Bannon took over as the chairman of the Trump Campaign. Bannon recalled that, before joining the Campaign on August 13, 2016, Stone told him that he had a connection to Assange. Stone implied that he had inside information about WikiLeaks. After Bannon took over as campaign chairman, Stone repeated to Bannon that he had a relationship with Assange and said that WikiLeaks was going to dump additional materials that would be bad for the Clinton Campaign.210

Rosenstein asserted there was no conspiracy in spite of ongoing investigations into a conspiracy

All of which leads me to something I’ve been pondering.

In this post, I analyzed what the Stone warrants suggest about the investigation into him. The investigation appeared to start as an effort to determine whether Stone’s efforts to optimize the hack-and-leak; the Mueller Report seems to explain that nothing Stone was known to have done was criminal. In August 2018, as Stone’s efforts to tamper with witnesses became clear from his press campaign, Mueller’s team obtained the warrants that would lead to his obstruction charges. On August 20, 2018, Mueller obtained warrants for Stone’s cell site location during the election and Guccifer 2.0’s second email account; while different FBI agents obtained those warrants, they got them within minutes of each other.

Then, on September 26 and 27, an FBI agent stationed in Pittsburgh obtained a bunch of warrants, most with gags citing 18 USC 951 and conspiracy, the descriptions of which were withheld in April, apparently because those investigations are ongoing.

*September 24, 2018: Warrant for Stone’s Liquid Web server

*September 26, 2018: Mystery Twitter Account

*September 27, 2018: Mystery Facebook and Instagram Accounts

*September 27, 2018: Mystery Microsoft include Skype

*September 27, 2018: Mystery Google

*September 27, 2018: Mystery Twitter Accounts 2

*September 27, 2018: Mystery Apple ends in R

The warrant targeting several Twitter accounts is sealed in part because, “It does not appear that Stone is fully aware of the full scope of the ongoing FBI investigation.”

In September 2018, Mueller’s team seems to have pursued a new line of investigation, one that the obstruction investigation into Stone may have provided cover for, one that may be ongoing. Mueller was specifically trying to hide that investigation from Stone.

But I’m struck by the date: September 26 and 27

In the wake of a September 21 NYT story, Trump almost fired Rosenstein when people close to Andrew McCabe leaked details of Rosenstein’s musing about wearing a wire to a meeting with Trump. Given Rosenstein’s apparent ignorance of even the public Stone related content — and O’Callaghan’s apparent misrepresentation of those details — I wonder whether Stone wasn’t the only person Mueller was hiding this from.

Rosenstein asserted, as fact, that the Mueller Report showed no evidence of a conspiracy between Trump and Russia (which is inaccurate by itself). He said that in spite of warrants in a still-pending investigation into conspiracy and Agent of a Foreign power involving Stone.

Rudy Giuliani’s Actions Remain Under Investigation

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Update: This post explains why the premise of the post below is wrong. Because the George Nader referral was not revealed in the reprocessed report, we can be sure that DOJ is improperly claiming b7A redactions for investigations that have closed.

Last night, DOJ released a “reprocessed” Mueller Report in the BuzzFeed/CNN FOIA of it. (one, two, three)

I’m driving most of the day today, so probably won’t be able to comment on how little genuinely “new” it shows. But I stand by my prediction that the warrants in the Stone case are far more damning than anything released yesterday.

That said, given Billy Barr’s attempt to fire Geoff Berman as US Attorney for Southern District of New York, it’s worth noting the referrals portion of the report. That shows, among other things, that a referral from the Paul Manafort and Rick Gates influence-peddling — which could be Rudy’s grifters — is still redacted as an ongoing investigation.

In addition — as Katelyn Polantz noted on Twitter — the references to Rudy’s attempts to broker a pardon for Michael Cohen remain redacted.

SDNY is due to supersede the indictment for Rudy’s grifters, and we know from the Schulte case there is a working grand jury (albeit in White Plains, not Manhattan). So Rudy may well be in Berman’s crosshairs.

 

A Tale of Two National Security Advisors

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As you no doubt heard, in addition to suing John Bolton for breach of contract over his Trump book, the Trump Administration has also asked for a Temporary Restraining Order against Bolton, purportedly with the goal of getting him to do things that are no longer in his control. At one level, the legal actions seem designed to make Bolton’s book even more popular than it would otherwise be — while starving him of any royalties for the book. Judge Royce Lamberth, who has a history of pushing back against Executive abuse (including claims involving classification) has been assigned the case; he scheduled a hearing for tomorrow.

I agree with the bulk of the analysis that these legal efforts will fail, to the extent they’re really trying to prevent Bolton from releasing the book. I also agree with analysis about the uphill climb Bolton faces to avoid having his profits seized.

That said, I can’t help but notice the way the filings set Bolton up — possibly, even for prosecution (which LAT reports remains under consideration), but also for a remarkable comparison with Trump’s first National Security Advisor, Mike Flynn.

Legally, the filings do what they need to do to seize Bolton’s profits, and will probably succeed (meaning you can buy the book and your money will go to the US Treasury). But, as noted, they’re not written to actually win an injunction, most especially against Bolton’s publisher, Simon & Schuster.

The filings do something else, though. They tell how Bolton apparently shared drafts of his manuscript before it had been cleared, which in turn got shared with the press.

35. On January 26, 2020, the New York Times published an article describing information purportedly “included in drafts of a manuscript” that Defendant, apparently without any protections for classified national security information, had “circulated in recent weeks to close associates.” The article set forth information allegedly contained in “dozens of pages” of the manuscript. A true and correct copy of this article is attached hereto as Exhibit F.

36. On information and belief, the January 26, 2020 article led to a tremendous surge in publicity for the pre-sales of the book, including hundreds of news articles, discussion on major television networks, statements by members of Congress, and widespread circulation of the article’s content on social media.

37. On January 27, 2020, the Washington Post published a separate article describing content contained in The Room Where it Happened, relying on the statements of “two people familiar with the book,” indicating, on information and belief, that Defendant had disclosed a draft of the manuscript to others without receiving prior written authorization from the U.S. Government. A true and correct copy of this article is attached hereto as Exhibit G.

38. Thus, notwithstanding this admonition, in late January 2020, prominent news outlets reported that drafts of Defendant’s manuscript had been circulated to associates of Defendant. These articles included reports from individuals supposedly familiar with the book, which indicates, on information and belief, that Defendant had already violated his non-disclosure agreements while purporting to comply with the prepublication review process. See supra ¶¶ 27, 29; see also Exhs. E & F

They lay out evidence that Bolton specifically knew the dangers of disclosing classified information, most ironically with a citation of his complaints about Edward Snowden (who also had his profits seized).

Defendant knows well the threat posed by disclosing classified information that might benefit the Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924.

They provide multiple declarations — from Mike Ellis, the Trump hack who has politicized classified information in the past, from National Counterintelligence Director Bill Evanina claiming this is the kind of information our adversaries look for, from Director of NSA Paul Nakasone talking about the specific vulnerability of SIGINT, and from Director of National Intelligence John Ratcliffe, whose name the TRO misspells and whose experience looks exceedingly thin compared to the others, along with classified declaration from Ellis. Even though the declarations were obviously carefully curated by Ellis, these are nevertheless the kinds of things courts usually bow to, when the government makes claims about classification. While neither we nor Bolton or his lawyer will get to review the actual claims being made, such declarations are usually sufficient to get the desired recourse.

Perhaps notably, the filings include a letter from John Eisenberg (whose shenanigans regarding the Ukraine call Bolton made more significant), written on June 11, at a time when the White House already knew Bolton was moving to publish, accusing Bolton of publishing this information for financial gain.

Fourth, your self-serving insinuations that the NSC review process has been directed at anything other than a good faith effort to protect national security information is offensive. Your client has taken classified information, including some that he himself classified, and sold it to the highest bidder in an attempt to make a personal profit from information that he held in trust as a public servant–and has done so without regard for the harm it would do to the national security of the United States.

Effectively, this package of filings does nothing to prevent the book from coming out. But it very carefully lays a record to meet the elements of an Espionage charge. Given this notice, the government would be in a position to point to the publication of the book (that Bolton couldn’t stop now if he wanted) and prove that Bolton had an obligation to keep these things secret, he knew the damage that not doing so could cause, and yet nevetheless published the information.

Whether they will prosecute or not is unclear. But these filings make it far easier to do so.

The White House is preparing to claim that John Bolton is akin to Edward Snowden, solely because he aired Trump’s dirt in a book.

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2.

Indeed, the Attorney General even claimed the call was “laudable,” even while lying that it didn’t conflict with Obama’s policies.

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

To be honest, I won’t weep if Bolton is prosecuted. He would have had more legal protection had he testified during the impeachment inquiry, which would have done more good for the country. It would be an abuse, but such abuse has been directed against far more vulnerable and admirable people.

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

Mike Flynn Prosecutor Jocelyn Ballantine Tries to Square DOJ’s Crooked Circle

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DOJ and Mike Flynn responded to Amicus John Gleeson’s filing arguing that Judge Emmet Sullivan should reject DOJ’s motion to dismiss Flynn’s prosecution today.

Sidney Powell claims Bill Priestap’s attempt to shield Flynn is misconduct

Sidney Powell’s brief was like all her other ones, legally a shit-show, at times making false claims, at others rolling out a word salad designed to impress the frothy right. It did not substantively address Gleeson’s filing but instead mostly repeated the arguments made in support of the petition for mandamus.

Two details are important, however. First, Powell repeatedly argued that both the FBI and DOJ’s prosecutors engaged in misconduct, in the latter case arguing the prosecutors withheld information covered by Brady.

Given the substantial briefing and documentation by the Justice Department of the reasons for dismissal here, based primarily on the Government’s proper recognition that it should correct its own misconduct which included suppression of extraordinary exculpatory evidence, this court has no further role to play than to grant dismissal forthwith. Smith, 55 F.3d at 159; United States v. Hamm, 659 F.2d 624, 631 (5th Cir. 1981).

[snip]

In its ninety-two-page decision denying General Flynn all exculpatory Brady material he requested, the court distinguished this case from United States v. Stevens, Criminal Action No. 08-231 (EGS) (D.D.C Apr. 1, 2009), because in Stevens, the government moved to dismiss the case upon admitting misconduct in the suppression of Brady evidence. ECF No. 144 at 91. That distinction is eviscerated with the Government’s Motion to Dismiss here. Moreover, in Stevens, the government filed a mere two-page motion to dismiss. Ex. 4. Here, the Government has moved to dismiss in a hundred-page submission that includes 86 pages of new documentation that completely destroys the premise for any criminal charges. This evidence was long sought by General Flynn but withheld by the prior prosecution team and its investigators and wrongly denied to him by this court.

[snip]

Amicus elides the reality of the egregious government misconduct of the FBI Agents—particularly that of Comey, McCabe, Strzok, Page, Pientka, Priestap and others who met repeatedly to pursue the targeted “take-out” of General Flynn for their political reasons and those of the “entirety lame duck usic.”

That last reference to the “entirely lame duck usic” refers to some text messages involving Strzok which, she claims, “the defense recently found that were never produced to it by the Government,” which given how the government provided the text messages probably means only that she didn’t look before. The text messages show Strzok describing a conversation with Bill Priestap about withholding the full transcripts of Flynn’s calls with Sergey Kislyak from the Obama White House to avoid having Obama dead-enders politicizing them — precisely the opposite of what her entire argument is premised on!!!.

So Powell’s new smoking gun–the thing she’s using to rile up the frothers–is proof that Strzok tried really hard to protect Flynn from precisely what she claims did him in, a politicized prosecution led by Obama people. In doing so, she presents evidence (and not for the first time) that Strzok tried really hard to protect Flynn.

Jocelyn Ballantine invents entirely new reasons why DOJ is moving to dismiss

The government’s response is the least-shitty argument DOJ has made in defense of abandoning Flynn’s prosecution, yet it still presents new problems for their case.

The government response was signed by a different team of people than have signed anything submitted thus far. Whereas only Timothy Shea — since promoted to be acting DEA Administrator — signed the initial motion to dismiss, and a team including five people from the Solicitor General’s office, including outgoing Solicitor General Noel Francisco himself, outgoing Criminal Division head Brian Benczkowski, in addition to people from the DC US Attorney’s office and career National Security Division prosecutor Jocelyn Ballantine signed the response on the DC Circuit petition for mandamus, this filing includes only the the latter three:

Whereas the Circuit filing necessarily argued a constitutional issue — the limits of a judge’s authority to deny a motion to dismiss the prosecution, this one argued an admittedly overlapping criminal one, one that makes the third different argument justifying the motion to dismiss. Significantly, this is a defense of the motion to dismiss that (unlike the original one) Jocelyn Ballantine, one of the two prosecutors on the case, was willing to sign.

Along the way, Ballantine presents new reasons to substantiate the claim that DOJ couldn’t convince a jury Flynn was guilty, including describing two things that she now claims weren’t in the notes but were in Flynn’s final 302.

According to the final FD-302, when the agents asked Flynn whether he recalled any conversation with Kislyak in which he encouraged Kislyak not to “escalate the situation” in response to the sanctions, Flynn responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” Doc. 198-7, at 6. According to the FD-302, the agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions; Flynn stated that he did not recall such a conversation. Id. The agents’ handwritten notes do not reflect that question being asked or Flynn’s response. See Doc. 198-13, at 2-8.

The final FD-302 also reports that Flynn incorrectly stated that, in earlier calls with Kislyak, Flynn had not made any request about voting on a UN Resolution in a certain manner or slowing down the vote. Doc. 198-7, at 5. Flynn indicated that the conversation, which took place on a day when he was calling many other countries, was “along the lines of where do you stand[ ] and what’s your position.” Id. The final FD-302 also states that Flynn was asked whether Kislyak described any Russian response to his request and said that Kislyak had not, id., although the agents’ handwritten notes do not reflect Flynn being asked that question or giving that response, see Doc. 198-13, at 2-8.

[snip]

The interview was not recorded and the final FD-302 includes two instances where the agents did not record a critical question and answer in their handwritten notes: (1) that agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions, and Flynn stated that he did not recall such a conversation; and (2) that the agents asked whether Kislyak described any Russian response to his request, and Flynn said that Kislyak had not.

This is actually a claim Sidney Powell has made in the past, though I found notes consistent with those questions here, explicitly so with respect to the sanctions conversation:

[Update: Note that, as I first pointed out, the notes here are reversed; Strzok’s are the ones on the left, Pientka’s are the ones on the right.]

Ballantine herself was on a filing stating that, “The final interview report, just like the agent’s handwritten notes, reflect all of the above material false statements” (though that filing did not address whether Flynn was asked about Russia taking Trump’s stance into account; see especially page 5 for the extended discussion that lacks that). And Judge Sullivan agreed, ruling in December that,

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.”

Ballantine–consistent with her past signed filing–does not contest that some of Flynn’s lies are clearly included in the notes, and so doesn’t contest that the notes clearly show Flynn lying at least twice to prosecutors.

Ballantine also further develops the “new thing” that the motion to dismiss relied on to justify flip-flopping on past DOJ stances (though it is the same “new thing” presented in the Circuit filing): the new developments involving essential participants in Flynn’s prosecution:

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

While this information would definitely make it harder (but in no way impossible, not least because there are witnesses like Mike Pence and KT McFarland to Flynn’s lies) to prove DOJ’s case, as Gleeson pointed out in his brief, DOJ didn’t have to do that — they already have two allocutions of guilt, including one that affirmed Flynn could never again raise such issues! Moreover, all but one of these new “new things” happened before Flynn reallocuted his guilty plea, meaning Ballantine is in no position to argue they justify abandoning the prosecution. Plus, they conflict with the “new things” cited in the Shea motion to dismiss explaining the DOJ flip-flop.

Ballantine creates a case and controversy over whether prosecutorial misconduct occurred

Ballantine presents some things she’s willing to buy off on to argue why DOJ was right to dismiss the prosecution.

But along the way, she contested the central point in Flynn’s argument, that any of this amounted to prosecutorial misconduct.

1 Before Flynn’s 2017 guilty plea, the government provided Flynn with (1) the FBI report for Flynn’s January 24 interview; (2) notification that the DOJ Inspector General, in reviewing allegations regarding actions by the DOJ and FBI in advance of the 2016 election, had identified electronic communications between Strzok and Page that showed political bias that might constitute misconduct; (3) information that Flynn had a sure demeanor and did not give any indicators of deception during the January 24 interview; and (4) information that both of the interviewing agents had the impression at the time that Flynn was not lying or did not think he was lying.

The government subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Doc. 20, at 2. The majority of those materials, over 21,000 pages of the government’s production, pertain to Flynn’s statements in his March 7, 2017 FARA filing, for which the government agreed not to prosecute him as part of the plea agreement. The remainder are disclosures related to Flynn’s January 24, 2017, statements to the FBI, and his many debriefings with the SCO.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. [my emphasis]

Ballantine directly contradicts the suggestion made in the Shea motion to dismiss, that any of the documents turned over were new or Brady material; they’ve been demoted to “relevant to.” More importantly, she says that Flynn is wrong to claim either that DOJ said there was misconduct (it did not) or that any misconduct occurred.

Now there’s a case and controversy between DOJ and Flynn. DOJ says no DOJ abuse occurred, in this filing quite explicitly. Flynn says it’s why his prosecution must be dismissed.

While it’s not central to the issue before John Gleeson, it is something he can exploit.

Ballantine dances around DOJ’s shitty materiality claims

Particularly given how Ballantine dances around the main reason DOJ claims it moved to dismiss Flynn’s prosecution, because his lies weren’t material.

This motion was better argued all around than the Main DOJ ones, including the one bearing the Solicitor General’s name. And in numerous places, it presents actual nuance and complexity. One key place it does so is where it admits that DOJ has some motions still pending before Sullivan.

Flynn subsequently retained new counsel. Doc. 88, at 2. He then filed a Brady motion, which the Court denied. Doc. 144, at 2-3. In January 2020, Flynn moved to withdraw his guilty plea, asserting ineffective assistance of prior counsel. Docs. 151, 154, 160. The government has not yet responded to this motion. Flynn also filed a motion to dismiss the case for government misconduct. Doc. 162. In February 2020, the government opposed Flynn’s motion to dismiss. Doc. 169. Flynn repeatedly supplemented the motion after receiving the government’s response, Docs. 181, 188, 189; the government has not submitted a further filing responding to the additional allegations.

On May 7, 2020, while those motions remained pending, the government moved to dismiss the case under Federal Rule of Criminal Procedure 48(a). The government first explained a court’s “narrow” role in addressing a Rule 48(a) motion. Doc. 198, at 10 (quoting United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016)). The government then set out its reasons for the dismissal, explaining why it had concluded that continued prosecution was not warranted. Id. at 12-20; see pp. 25-32, infra. Flynn consented to the motion. Doc. 202. [my emphasis]

Already this passage presents problems, because Ballantine doesn’t explain why DOJ opposed Flynn’s motion to dismiss in February but does not now, even though none of her “new things” were new in February.

But she doesn’t mention the still-pending DOJ sentencing memorandum, submitted after all the “new things” that Ballantine laid out were already known. That sentencing memorandum not only suggested Flynn should do prison time, but it also argued not only that Flynn’s lies were material, but that Judge Sullivan should consider Flynn’s material FARA lies in his sentencing.

On December 1, 2017, the defendant entered a plea of guilty to a single count of “willfully and knowingly” making material false statements to the Federal Bureau of Investigation (“FBI”) regarding his contacts with the Government of Russia’s Ambassador to the United States (“Russian Ambassador”) during an interview with the FBI on January 24, 2017 (“January 24 interview”), in violation of 18 U.S.C. § 1001(a)(2). See Information, United States v. Flynn, No. 17-cr-232 (D.D.C. Nov. 30, 2017) (Doc. 1); Statement of Offense at ¶¶ 3-4, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4) (“SOF”). In addition, at the time of his plea, the defendant admitted making other material false statements and omissions in multiple documents that he filed on March 7, 2017, with the Department of Justice (“DOJ”) pursuant to the Foreign Agents Registration Act (“FARA”), which pertained to his work for the principal benefit of the Government of Turkey. See SOF at ¶ 5. These additional material false statements are relevant conduct that the Court can and should consider in determining where within the Guidelines range to sentence the defendant.

[snip]

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

[snip]

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

The defendant now claims that his false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambush-interview” to trap him into making false statements, see Reply at 1. The Circuit Court recently stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019 WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further undermined by the defendant’s efforts over the last four months to have the Court dismiss the case. See Reply at 32.

[snip]

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime.

[snip]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

After the most recent “new thing” Ballantine cited (the DOJ IG Report), in a motion that is still pending before Sullivan, she argued that these lies were material. She doesn’t admit it’s still pending or in any other way deal with it. But Ballantine is making an argument here that conflicts with an argument she signed off on (and spent a great deal of time getting approved by all levels of DOJ) in January.

That presents problems for her claim that the motion to dismiss is the “authoritative position of the Executive.”

The Rule 48(a) motion here represents the authoritative position of the Executive Branch,

A still-pending sentencing memo she signed says Flynn’s lies were material, which conflicts with the pending motion to dismiss. Both are the still-authoritative position of the Executive.

She makes things worse by adopting only one part of Shea’s argument about materiality (though this is consistent with the DC Circuit brief). Shea argued the lies were not material, at all.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.

[snip]

The particular circumstances of this case militate in favor of terminating the proceedings: Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation. Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt, the Government now moves to dismiss the criminal information under Rule 48(a).

[snip]

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI.

[snip]

In light of the fact that the FBI already had these transcripts in its possessions, Mr. Flynn’s answers would have shed no light on whether and what he communicated with Mr. Kislyak.—and those issues were immaterial to the no longer justifiably predicated counterintelligence investigation. Similarly, whether Mr. Flynn did or “did not recall” (ECF No. 1) communications already known by the FBI was assuredly not material.

[snip]

Even if he told the truth, Mr. Flynn’s statements could not have conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose. See United States v. Mancuso, 485 F.2d 275, 281 (2d Cir. 1973) (“Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation.”); cf. United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (noting that a lie can be material absent an existing investigation so long as it might “influenc[e] the possibility that an investigation might commence.”). Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

6 The statements by Mr. Flynn also were not material to the umbrella investigation of Crossfire Hurricane, which focused on the Trump campaign and its possible coordination with Russian officials to interfere with the 2016 presidential election back prior to November 2016. See Ex. 1 at 3; Ex. 2 at 1-2. Mr. Flynn had never been identified by that investigation and had been deemed “no longer” a viable candidate for it. Most importantly, his interview had nothing to do with this subject matter and nothing in FBI materials suggest any relationship between the interview and the umbrella investigation. Rather, throughout the period before the interview, the FBI consistently justified the interview of Flynn based on its no longer justifiably predicated counterintelligence investigation of him alone.

Shea further argued that Sullivan’s past judgment that these lies were material came before DOJ’s view on the case changed.

7 The Government appreciates that the Court previously deemed Mr. Flynn’s statements sufficiently “material” to the investigation. United States v. Flynn, 411 F. Supp. 3d 15, 41-42 (D.D.C. 2019). It did so, however, based on the Government’s prior understanding of the nature of the investigation, before new disclosures crystallized the lack of a legitimate investigative basis for the interview of Mr. Flynn, and in the context of a decision on multiple defense Brady motions independent of the Government’s assessment of its burden of proof beyond a reasonable doubt.

Ballatine does parrot Shea’s claim that “additional information” has emerged since Sullivan ruled.

In any event, additional information that was not before the Court emerged in the months since the decision that significantly alters the analysis.

The problem, here, is that in her filing, that’s as much a false claim as Shea’s claim to have found “new things” were. Ballantine’s “new things” was all known to the government well before Sullivan ruled.

As to materiality itself, the only part of Shea’s argument about materiality that Ballantine adopts pertains to whether she could prove it.

The government expressed concern specifically about its ability to prove materiality.

[snip]

The government’s Rule 48(a) motion accordingly explained that it doubted whether, in light of those aspects of the record, it should attempt to prove to a jury that the information was objectively material.

Which, as Gleeson has pointed out, doesn’t matter given Flynn’s past guilty plea.

Perhaps because of that, Ballantine adopts a different approach than Shea did in arguing that Sullivan’s past ruling didn’t matter. She argues that only a jury can decide materiality.

But as the Supreme Court has held, determining whether information is material is an essential element of the crime that must be determined by a jury, and cannot be determined as a matter of law by a court. United States v. Gaudin, 515 U.S. 506, 511- 512, 522-523 (1995). Indeed, the materiality inquiry is “peculiarly one for the trier of fact” because it requires “delicate assessments of the inferences a reasonable decision-maker would draw from a given set of facts and the significance of those inferences to him.” Id. at 512 (internal quotation marks and brackets omitted). For that reason, the Court’s determination could not resolve the government’s concerns about its materiality case at trial.

But then she imagines what the jury might think about the materiality of Flynn’s lies that — much of the subsequent developments make clear — actually did affect the investigation into him.

Amicus makes much of the fact that a defendant’s false statements can be material even when the investigators are not deceived by them, accusing the government of asking for “the suspension of settled law for this case, but not for any others.” Gleeson Br. 46-47 (citing United States v. Safavian, 649 F.3d 688, 691-692 (D.C. Cir. 2011) (per curiam)). Contrary to amicus’s assertion (at 46-47), however, that is entirely consistent with the government’s analysis. In Safavian, the D.C. Circuit rejected a defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them.” 649 F.3d at 691. As the government recognized in its motion to dismiss, the fact that the FBI knew at the time it interviewed Flynn the actual contents of his conversations with Kislyak does not render them immaterial. See Doc. 198, at 17 (citing Safavian, 649 F.3d 688 at 691-692). Rather, the fact that the FBI knew the content of the conversations is relevant because it would allow a jury to assess the significance the FBI in fact attached to that truthful information when the FBI learned it; and, absent reason to think that the FBI’s reaction was objectively unreasonable, that would inform the jury’s assessment of the significance a reasonable decision-maker would attach to the information.

Shea’s argument was — as Gleeson made clear — legally indefensible. Ballantine’s is legally more defensible. Except that she has already argued more persuasively against herself, in a still-pending filing that is, like the motion to dismiss, the authoritative position of the Executive Branch.

Ballantine’s argument here is more persuasive then — though inconsistent with — Shea’s. Except that she’s arguing with a still more persuasive Ballantine memorandum that remains before Sullivan.

Not only is DOJ arguing with DOJ, but Jocelyn Ballantine is arguing with Jocelyn Ballantine

With DOJ’s motion to dismiss, Bill Barr’s DOJ argued against what Bill Barr’s DOJ argued in a still pending sentencing memo submitted in January. DOJ’s response in the DC Circuit mandamus petition argued against Bill Barr’s admission that Emmet Sullivan has a say in whether to dismiss the case or not. Now, Jocelyn Ballantine is arguing that DOJ’s past (but still-pending) statements about materiality conflict with its current statements.

The DC Circuit filing and this one conflict with Shea about what the “new things” are justifying such flip-flops.

But crazier still, Ballantine argues that these conflicting statements are the authoritative view, singular, of the Executive.

Ballantine has laid out a case and controversy with Sullivan here — whether her own conduct amounted to misconduct. Sullivan’s amicus, John Gleeson, may well be able to use that to argue that the many conflicting statements from DOJ make it clear there is no authoritative view from the Executive, because it can’t agree with itself — its prosecutor can’t even agree with herself — on a week to week basis.

And if there is no one authoritative authoritative view of the Executive, Sullivan will have a much easier time arguing all this overcomes any presumption of regularity.

Jeff Wall Admits that Any Scrutiny of DOJ’s Motion to Dismiss Flynn Prosecution Will Cause Irreparable Harm to Bill Barr

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The hearing in Mike Flynn’s petition for a writ of mandamus just ended.

The key takeaway, given the make-up of the court, is that for the majority of the hearing, Judge Karen LeCraft Henderson seemed clear that it was too early to overturn any action Judge Emmet Sullivan has made. He has the authority to hold a hearing, she was clear. But if he decides not to grant the motion to dismiss, she seemed to indicate, she would favor a writ of mandamus overturning Sullivan’s decision. Henderson clearly believes that Gleeson’s filing, thus far, is intemperate, which is pretty funny given what Sidney Powell has done in this case.

At the very end of the hearing, she invited Principal Deputy Solicitor General Jeff Wall to address a claim made in DOJ’s brief: that DOJ should be permitted to self-correct the harm of a bad faith prosecution. So she may have been reserving that as a reason to rule for Flynn — ultimately ruling instead for DOJ. But her comments through the rest of the hearing suggest this petition will fail.

But the notion this might involve ruling for DOJ is the most interesting part of this hearing. Flynn filed the petition, not DOJ. Powell’s argument for Flynn was predictably flimsy, self-contradictory, and false. Even Judge Neomi Rao, who will clearly rule for Flynn, seemed to be struggling to find a way to agree with Flynn.

The more interesting argument came from Wall. He argued, repeatedly, that DOJ will be irreparably harmed if Sullivan is permitted to hold a hearing on DOJ’s motion to dismiss. In particular, he seemed horrified that Sullivan might require sworn declarations of affidavits.

As Beth Wilkinson, arguing for Sullivan, mentioned, neither Sullivan nor Amicus John Gleeson has called for such a thing. Both are simply moving towards a hearing scheduled for July 16. Wilkinson also noted that District courts hold such hearings all the time. (And they predictably will have to in another case where DOJ has moved to end a prosecution recently, in which — unlike this case — there appears to have been prosecutorial misconduct, Ali Sadr Hashemi Nejad, which I’ll return to).

Wall is literally arguing that DOJ will be permanently damaged if it has to show up and answer for its actions in this case (in particular, to explain why the prosecutors in this case didn’t sign the motion to dismiss).

That Wall argued so forcibly as to the injury that DOJ would suffer if it had to show up and defend its motion to dismiss is all the crazier given that they didn’t file the petition. The only harm that matters here procedurally is any harm to Flynn, not DOJ, and Powell really made no such case.

When Robert Wilkins pointed out that DOJ had not filed this petition, Wall basically asked for a mulligan, the opportunity to file their own mini-writ of mandamus. Judge Henderson responded by asking (as she had more generally) why this case shouldn’t proceed under regular order, in which when DOJ missed the opportunity to file their own writ, they can’t be granted a mulligan to do so after the fact.

Along the way, Wall and Powell both repeatedly misrepresented the status of the case. More importantly, both claimed DOJ’s motion was very detailed, without noting that it also made false claims, claims on which DOJ has reversed itself at the Circuit level. That will matter in a hearing, which may be why Wall was so insistent that a hearing would do real damage to DOJ.

As noted, given Henderson’s questions for the bulk of the hearing, the Circuit will likely deny this petition. But the most striking takeaway is how panicked Wall was that DOJ might be asked to explain itself.

Setting the Scene: Today’s Flynn Hearing

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I’m still doing household chores so haven’t read the Judge Emmet Sullivan response and government and Flynn reply briefs at the DC Circuit in Mike Flynn’s petition for a writ of mandamus as closely as I would have liked.

But before today’s hearing, I wanted to recall what the posture is.

The question before the Circuit should be whether Flynn is entitled to any help at the DC Circuit. It should be whether Sullivan has taken an action that is so egregious — and so injures Flynn — that it merits the DC Circuit weighing in to overturn Sullivan’s action.

The only action Sullivan has taken, though, is appointing an amicus, something that is soundly within normal judicial discretion.

The Circuit — with a panel including the shamelessly hackish Neomi Rao — ordered the sides to brief whether Sullivan had to grant DOJ’s motion to dismiss right away, what should be a premature question in any case. Effectively, Flynn has argued that DOJ had a reason to dismiss the prosecution and DOJ has argued that this is a separation of powers issue (in both its response and reply, the government has argued against what it argued before Sullivan and what Bill Barr has conceded publicly). Even while strictly arguing the mandamus issue (including the DC Circuit’s approach to Roger Stone’s similar premature petition for mandamus, which was properly rejected), Sullivan’s response also raised the outstanding allegations against Flynn on his Turkish influence peddling.

All of which is to say the arguments (Flynn, DOJ, and Sullivan will have have 15 minutes to argue) likely won’t be addressing the legal issues that should be before the court, and Flynn and DOJ have already made claims that aggressively conflict with the record in this case. One detail Flynn has relentlessly obscured is what information was available before Flynn allocuted to his guilt a second time; basically everything that is public already was known to him.

Add in the fact that DOJ is now claiming that a judge cannot stop DOJ from dismissing a prosecution of the President’s buddy for no good reason, and we should expect that today’s hearing will pose a grave risk to the rule of law in this country.

You can stream the hearing here.

Appointed Amicus John Gleeson Argues DOJ Engaged in Gross Prosecutorial Misconduct in Moving to Dismiss Flynn Prosecution

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I’m painting and doing other chores today and so my analysis of the amicus John Gleeson submitted in the Mike Flynn prosecution will have to wait. I did a thread of my initial read of the filing here.

The short version, however, is this.

Gleeson argues there are two bases for denying a motion to dismiss a prosecution: the prosecutor’s reasons for doing so, or clear evidence of gross prosecutorial abuse.

Guided by Rule 48(a)’s text and history, as well as separation of powers principles, there are two grounds for denying leave of court. First, “the requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons.” Ammidown, 497 F.2d at 622. Those reasons must be real and credible; where they are demonstrably pretextual, the court may deny leave under Rule 48(a). Second, courts may deny Rule 48(a) motions based on clear evidence of gross prosecutorial abuse. See id.

He then argues that DOJ’s reasons for moving to dismiss are such obviously bullshit, the only explanation for the motion is that Flynn is a political ally of President Trump.

Both grounds for denying leave of court under Rule 48(a) are present in this case. The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.

Of all the places where Gleeson might (and in some cases, does) use DOJ or Barr’s prior statements against DOJ, the most effective one is quoting Barr’s statement that Trump’s tweets about investigations into his flunkies “make it impossible to do [his] job” to substantiate a claim that any DOJ independence has severely broken down.

These [over 100 Trump tweets complaining about the Flynn prosecution] were issued against the background of a severe breakdown in the traditional independence of the Justice Department from the President. As Professor Jack Goldsmith notes, “every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters.”57 One component of that independence is “resistance to politicized influence.”58 Yet President Trump has overtly claimed and exercised the “absolute right to do what I want to do with the Justice Department.”59 The Attorney General stated earlier this year that President Trump’s “public statements and tweets” about pending cases “make it impossible to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.”60

Which leads Gleeson to concede that DOJ is permitted to exercise its prosecutorial discretion to help a Trump ally for sound reasons, not not for pretextual ones.

The Government may permissibly exercise its discretion for sound reasons even if doing so benefits a friend and political ally of the President (who, as noted, tried unsuccessfully to persuade the FBI Director at the time to “let this go,” ECF No. 79-6 at 26). But the Government may not enlist a court in dismissing a case solely because the defendant is a friend and political ally of the President—and where the ostensible reasons advanced for dismissal amount to a thin and unpersuasive disguise. Only by acting as a rubber stamp could the Court presume that all of this is regular and that the Government’s reasons here are anything but pretextual. Unfortunately, what is actually happening in this case is precisely what Rule 48(a) was intended to guard against. If the Executive wishes for the Judiciary to dismiss criminal charges—as opposed to issuing a pardon or taking other unilateral action—the reasons it offers must be real and credible. Its professed concerns about materiality are neither.

Ultimately, Gleeson argues that Judge Emmet Sullivan should deny DOJ’s motion to dismiss, but that he should not hold Flynn in contempt, but instead factor Flynn’s materially conflicting lies into his sentence.

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