2016 Presidential Election Archives - Page 44 of 184

After Trump Spent Four Years Inviting Russia to Hack the US, Russia Allegedly Did Just That

Yesterday, Reuters revealed that the same vulnerability used to steal FireEye’s Red Team tools was also used to spy on Treasury and Commerce’s National Telecommunications and Information Administration, which administers the Internet. Then WaPo revealed that Russia’s APT 29 hacking group is believed to be behind the compromise. Multiple outlets — including FireEye itself — revealed that the hack had used a vulnerability in SolarWinds IT monitoring software identified in the spring. FireEye explains the hack has targeted, “government, consulting, technology, telecom and extractive entities in North America, Europe, Asia and the Middle East,” (presumably reflecting what they’ve seen in their clients as they respond to their own compromise). And CISA issued an emergency directive aiming to stem the damage in agencies beyond just Treasury and NTIA (among SolarWinds’ other US government clients are DOJ and two nuclear labs, as well as Booz Allen, which might as well be US government). Later today, Reuters confirmed that DHS had also been targeted. State, NIH, and parts of the Pentagon have also been targeted.

Let me make clear before I start that thus far, this is nation-state spying, without the kind of sabotage we’ve seen from Russia in the past (if it is indeed Russia). Russia would do what they did with this vulnerability with or without Trump in office (indeed, I have a suspicion their overt hacks of the US will go up under President Biden, mostly because Trump didn’t need any help damaging the US government). While the full scope of the victims is not yet known, it’s quite clear that hackers targeted a slew of entities, governmental and not, with this campaign. So having Trump in office in no way created this campaign nor chose the target.

Nevertheless, it is the case that the President of the United States, as a policy matter, has gone to great lengths to make it easier for Russia to minimize the costs of hacking the US.

Almost four years ago, Mike Flynn called up the Russian Ambassador and asked him not to box the Trump Administration in in the wake of President Obama’s effort to hold Russia accountable for interfering in our elections, in part by hacking multiple participants in it, from both parties. Vladimir Putin complied with Flynn’s request, taking no steps in response. Not only did Sergey Kislyak make sure Flynn knew that his request had played a key role in Putin’s decision, but he told Flynn that the Trump Administration and Russia were on the same side, targeted by sanctions aiming to incur a cost for Russia’s actions. “I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.”

Well before Kislyak had suggested to the 30-year intelligence veteran that Russia and Trump were on the same side against establishment America, Flynn had already taken steps to hide his actions, perhaps because some Transition members, like Marshall Billingslea, objected to the pre-inauguration outreach to Russia.

When the whole thing got leaked to the public, Flynn lied even to the Vice President-Elect about his outreach.

But Trump appears to have been in on the secret. “The boss is aware” of Kislyak’s earlier requests of the Administration, Flynn told Kislyak on December 31, 2016. Indeed, Flynn made the first call that he would later lie about from Mar-a-Lago, while Flynn, “worked all day with trump from Mara lago,” as KT McFarland bragged in real time.

When the FBI interviewed Flynn about those calls a month later, he lied about the requests he had made of Russia. But he appears to have told a remarkable truth about one thing. “With regard to the scope of the Russians who were expelled,” from the US in retaliation for interfering in a US election, the FBI agents who interviewed him wrote, “FLYNN said he did not understand it. FLYNN stated he could understand one [diplomat expelled as a persona non-grata], but not thirty-five.” General Flynn, a thirty year veteran, thought an appropriate response to a systematic assault on American democracy was to kick out one suspected spy.

Months later (though this would not be revealed until years later), the newly installed President would make it clear he agreed with his short-lived National Security Advisor. In his first face-to-face meeting with representatives from Russia as President on May 10, 2017, President Trump told Foreign Minister Sergey Lavrov that he was unconcerned about Russian interference in the election that had made him President, because the US had historically done the same in other countries. Trump’s officials would take efforts to hide the most embarrassing aspects of that meeting (including that Trump shared highly sensitive Israeli intelligence with the Russians), first by altering the MemCon of the meeting and then having Trump’s new National Security Advisor, HR McMaster, give, “a misleading account of what happened during TRUMP’s meeting with LAVROV.” And Russia would have known that Trump and McMaster were lying.

Before Trump would tell Russia, to their face, that he didn’t much mind that Russia had hacked American democracy, he started dismantling the United State’s ability to prevent further hacks. That started with an effort to prevent the FBI from investigating why Flynn had reached out to Russia to undermine sanctions and (as a sentencing memo approved by Bill Barr’s DOJ would later explain) who ordered him to do so. The day Trump learned the FBI had interviewed Flynn, he asked FBI Director James Comey for loyalty. Then, after Trump fired Flynn — ostensibly for lying to the Vice President — he then privately asked the FBI Director to, “let[] this thing go, to let[] Flynn go.” After Comey testified publicly to Congress about the investigation, Trump fired him.

A long line of people would follow Comey out the door, many of them experts on Russia or counterintelligence or cybersecurity. Trump invented reasons in most cases (reasons that, as with Comey, sharply conflicted with his own views about Hillary Clinton). The obvious real reason had to do with retaliation for investigating him. But in those firings and resignations, Trump got rid of numerous people who had long fought Russian organized crime (like Andrew McCabe and Bruce Ohr), and counterintelligence experts like Peter Strzok. Before and after his impeachment, he got rid of other Russian experts like Marie Yovanovitch and Alexander Vindman. Even those who left of their own accord, like Fiona Hill, were demonized for their true testimony under subpoena.

The most remarkable moment came in July 2018, shortly after the Mueller team indicted Russia’s hackers for their attack on our democracy, when Trump met Putin in Helsinki.

Days before the meeting — though possibly after he had been warned the indictment was coming — Trump announced that he and Putin were talking about cybersecurity cooperation.

Then at the actual summit, with Putin displaying Trump like a soggy trophy, Trump sided with Putin’s denials over the US intelligence community in part because of conspiracy theories about the DNC server.

My people came to me, Dan Coats, came to me and some others, they said they think it’s Russia. I have President Putin. He just said it’s not Russia.

I will say this: I don’t see any reason why it would be. But I really do want to see the server but I have confidence in both parties.

I really believe that this will probably go on for a while, but I don’t think it can go on without finding out what happened to the server. What happened to the servers of the Pakistani gentleman that worked on the DNC?

Where are those servers? They’re missing. Where are they? What happened to Hillary Clinton’s emails? 33,000 emails gone, just gone. I think in Russia they wouldn’t be gone so easily.

I think it’s a disgrace that we can’t get Hillary Clinton’s 33,000 emails.

I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today and what he did is an incredible offer.

He offered to have the people working on the case come and work with their investigators, with respect to the 12 people. I think that’s an incredible offer. Okay? Thank you.

That is, after a lengthy meeting with Putin, Trump simply decided — perhaps because he had to decide — that Russia had not attacked the US at all. His solution, per Putin’s suggestion, was to send people who had been investigating Russian crimes to Russia, something that has gotten people killed in the past.

Meanwhile, Trump started dismantling the cybersecurity defenses built up during the Obama Administration. The first day John Bolton started as Trump’s third National Security Advisor, experienced cybersecurity guy Tom Bossert was fired as Homeland Security czar.

President Donald Trump’s homeland security adviser, Tom Bossert, was fired Tuesday as the president’s new national security adviser, John Bolton, consolidates power in the White House.

On Monday night, Bossert was socializing with current and former U.S. Intelligence officials at a conference in Sea Island, Georgia, and a source close to him told NBC News that the adviser was unaware of any intention at the White House to seek his resignation, and that he had no plans to quit.

“New team,” the source said, without further explanation.

Bossert was called in to Bolton’s office early Tuesday morning and told that he was being fired, according to a source with direct knowledge.

Trump’s associates may have figured out that Bossert had provided key details about the events at Mar a Lago in December 2016; he also appears to have provided emails to Mueller’s team that helped them to get those of others like Jared Kushner and Steve Bannon.

Rob Joyce, a top NSA expert, was moved back to the Agency a few months after Bossert left. So even as Bolton was downgrading the pandemic expertise within NSC, he was also eliminating top cybersecurity talent.

That was done because Bolton is a power hungry asshole. But Trump continued eliminating cybersecurity expertise (even beyond that ensuring secure elections) in a fit of pique after the election. At a time when this hack would have already started, Trump fired the head of CISA, Chris Krebs, along with a deputy because they refused to back his conspiracy theories about the election. Politico reported that, in Krebs’ absence, “There is ‘massive frustration with CISA on a sluggish response to agency breaches.'”

Cybersecurity was one area where Trump’s team really was every bit the match of Obama’s — if not better. But Trump fired or removed key people one after another.

Similarly, also in a fit of pique, Trump put one after another unqualified flunky in charge of the entire Intelligence Community, first Twitter troll Ric Grenell and then resume fluffer John Ratcliffe. He did so, in substantial part, because they would ensure that Congress would not get briefed on threats from Russia. He also did so to ensure documents that purportedly undermined the case that he had been elected with Russian help would be released to the public. Under the two men, the government released documents that might have revealed key details about sources and methods to the Russians, both on how they collected on the Russian Embassy and on how quickly the CIA picked up certain pieces of intelligence in summer 2016.

Finally, things have come full circle. After Flynn blew up a perfectly good plea agreement (I’ll show in a few days he still would have been better off with that) largely in the service of making unsubstantiated claims of abuse refuted even by Barr’s DOJ along the way, Barr needed to help him out of the legal pickle and jail time his shitty defense attorney Sidney Powell got him into. As part of that effort, the Attorney General of the United States moved to dismiss the prosecution based off a claim (one that conflicted with a filing submitted by his own DOJ months earlier) that Flynn did nothing wrong by calling up Russia to undermine sanctions imposed, in part, to punish them for a hack. The case was so weak, the team trying to invent excuses for why Flynn shouldn’t be prosecuted for lying to hide his attempts to undermine sanctions on Russia altered documents. And that still didn’t work.

And so, along with a Thanksgiving turkey, Trump pardoned Mike Flynn, his first act of lame duck clemency, for Flynn’s service in protecting Trump from accountability for, himself, undermining those sanctions. Trump came into office telling Russia not to worry about hacking the United States. Trump told them explicitly, to their face, not to worry about hacking the United States. And in pardoning Mike Flynn, Trump made it clear that Russia should not worry — about Trump at least — about hacking the Untied States.

We will presumably get more certainty in days ahead about whether Russia did this hack, as well as the many key targets of it. The real question, however, will be whether Trump will be held accountable for inviting it to happen.

Update: The NYT describes analysis pointing out that Trump continues to sow conspiracy theories about voter fraud while remaining silent about getting pwned by his buddy Putin.

Analysts said it was hard to know which was worse: that the federal government was blindsided again by Russian intelligence agencies, or that when it was evident what was happening, White House officials said nothing.

But this much is clear: While President Trump was complaining about the hack that wasn’t — the supposed manipulation of votes in an election he had clearly and fairly lost — he was silent on the fact that Russians were hacking the building next door to him: the United States Treasury.

Updated with link to Politico and expanded list of targets.

Update: Richard Blumenthal, after attending a classified briefing on this compromise, has repeatedly attributed it to Russia.

Mike Pompeo has similarly stated, as fact, that Russia did it.

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The Forgotten Coffee Boy Errands

December 13, 2020/15 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Among the things Steve Bannon has lied about most assiduously was the role George Papadopoulos played in setting up a fall 2016 meeting with Abdel Fattah el-Sisi. The first time he was asked about the Egypt meeting in a February 2018 interview with Mueller, he gave Jared Kushner credit. Later in the same interview, Bannon claimed he,

would generally blow off Papadopoulos and thought to himself “I don’t need this guy.” Flynn would be on the hook for the meetings Papadopoulos was suggesting, and Bannon didn’t need Papadopoulos.

Bannon transitioned immediately from that claim to disavowing advance knowledge of the emails Russia had.

Papadopoulos never told Bannon about the Russians having dirt on Clinton, and Bannon never heard Papadopoulos tell anyone in the campaign, such as Sam Clovis, that the Russians had dirt on Clinton.

Of course, by the time Bannon joined the campaign proper, he was already talking to Roger Stone about Russia dealing emails.

In an interview with SSCI, Bannon told even more ridiculous lies about Papadopoulos’ role in the el-Sisi meeting. When asked about a sustained thread between him and the Coffee Boy around the meeting, Bannon claimed he had accidentally emailed Papadopoulos about the meeting when he intended to email someone else.

Between September 16, 2016, and September 18, 2016, Papadopoulos and Bannon exchanged dozens.of messages relating to a potential engagement between President El~Sisi of Egypt and Trump, ultimately confirming a dinner meeting at 9:00 p.m. on Monday, September, 19, 2016. During this email exchange, Bannon asked Papadopoulos to email a briefing in advance of the meeting with President El-Sisi, which Papadopoulos sent noting that “while in Athens over dinner with Greek defense minister last May, he personally introduced me to the Egyptian defense minister and the rest became monthly consultations with the Egyptians in DC.” There are an additional two email messages related to this conversation that were redacted when produced to the Committee. Bannon told the Committee that he mistook Papadopoulos for a separate Campaign staffer and never meant to engage with Papadopoulos on this issue. Bannon Tr., pp. 95-98.

At the time then, Papadopoulos told Bannon that his ties with Egypt started back in May, when he was in Greece the same day as Putin and when he bragged to Greece’s Foreign Minister that the Russians had Hillary’s emails.

These same ties were key to the role that Papadopoulos played during the Transition, when he was hoping Flynn would hire him for a key NSC job on energy (hopes for that job is the excuse he later used for lying to the FBI). He had at least two more substantive discussions with Bannon in this period, one on and following December 9, and another on and following January 4.

Papadopoulos, however, was about to travel to Greece, and was keeping senior members of the Trump Transition Team apprised of his engagements. On December 9, 2016, Papadopoulos passed on a purported request from the Prime Minister of Greece to meet with President-Elect Trump in early January 2017 to Bannon.3415 In an email the following day, December 10, 2016, Papadopoulos further stated that he “[s]poke with the Greek defense minister.3416 They want to sign a government to government agreement with the USA for all rights to all energy fields offshore. Strategic foothold in the Mediterranean and Balkans.”3417 Bannon replied to the note, adding Michael Flynn and Kathleen Troia (K.T.) McFarland to the communication, both of who were-senior national security officials on the Transition Team.3418 Papadopoulos then wrote to the group on December 10, 2016, that the Greek defense minister had “earmarked the island of [K]arpathos for a potential listening post and air base for the US” and further stated “A base on [K]arpathos is key to controlling sea lines of communication in the Aegean/plan b should Incirlik once again become unusable.”3419 The following day, December 11, 2016, Papadopoulos wrote to Flynn’s Transition Team email address, passing along the phone number for Kammenos, the Greek Defense Minister, noting that the “[l]ine is not secure, however. He can pass along a secure number when you both find the time to discuss.”3420

Papadopoulos again reached out to Bannon on January 4, 2017, relaying a request from the Greek Foreign Minister for a phone call with Trump. 3421 Bannon responded, adding Flynn, which Papadopoulos used to also request a meeting with the Egyptian ambassador .. 3422

3415 (U) Email, Papadopoulos to Bannon, December 9, 2016 (B&P GP F:ile 2018 000609).

3416 (U) According to Greek press reporting, Papadopoulos and Kammenos had lunch in Piraeus on Saturday, December 10, 2016, where Papadopoulos described himself as a “representative of Trump.” Kourdistoportocali.com, “World Exclusive: George Papadopoulos. and Panos Kammenos in ‘Dourabei, ‘” December 10, 2016.

3417 (U) Email, Papadopoulos to Bannon, December 10; 2016 (B&P GP File 2018 000609).

3418 (U) Email, Bannon to Papadopoulos, Flynn, McFarland, December 10, 2016 (B&P GP File 2018 000609).

3419 (U) Email, Papadopoulos to Flynn, Bannon, McFarland, and Kellogg, December 10, 2016 (B&P GP File 2018 000610).

3420 (U) Email, Papadopoulos to Flynn, December 11, 2016 (B&P GP File 2018 000610).

3421 (U) Email, Papadopoulos to Bannon, January 4, 2017 (B&P GP File 2018 000635).

3422 (U) Email, Bannon to Papadopoulos and Flynn, January 4, 2017 (B&P GP File 2018 000635); Email, Papadopoulos to Flynn and Bannon, January 6, 2017 (B&P GP File 2018 000635). [my emphasis]

The latter one, in which Papadopoulos wrote Bannon about Greece and Bannon then looped in Flynn, in response to which Papadopoulos also passed on a request from Egypt’s Ambassador, appears to be the email mentioned in an October 2016 warrant application targeting Mike Flynn.

Emails obtained pursuant to a judicially-authorized search warrant show that one or about January 6, 2017, a member of the Trump campaign team on foreign policy issues e-mailed [Flynn] and advised that a foreign government official had been asking to meet with FLYNN. Later that day, FLYNN responded to the Trump campaign member: “We’ll reach out and try to meet this coming week.” FLYNN’s response was also sent to [KT McFarland] and [Flynn’s scheduler Daniel Gelbinovich].

When Papadopoulos testified about this to the House, he left out the Egyptian part of things.

A So I never spoke about Russia at all with Michael Flynn, K.T. McFarland during the transition. It was about an energy project that the Greek Government wanted to discuss with the incoming administration, and that’s why I was put in touch — that’s my understanding of why I was put in touch with Michael Flynn during the transition over email to discuss this deal that, I guess, the Greek Government wanted to discuss with the higher-ups in the incoming administration about, I don’t know, giving U.S. companies rights to their energy reserves, something along those lines.

[snip]

Q Okay. So you never had a conversation or were aware of conversations with Michael Flynn relating to Saudi Arabia?

A To my recollection, the only interactions I had with Michael Flynn were regarding this Greek energy deal, and I think that’s documented in emails.

Even when asked specifically about who else he spoke with in the Transition, Papadopoulos left Egypt off, then claimed not to remember whether he had any meetings with Egyptian officials.

Q Okay. So you never had a conversation or were aware of conversations with Michael Flynn relating to Saudi Arabia?

A To my recollection, the only interactions I had with Michael Flynn were regarding this Greek energy deal, and I think that’s documented in emails.

[snip]

Q Any meetings with Egyptian officials?

A During the transition? I can’t remember, but it’s possible, because I had a very close network with them. But I can’t remember about Egypt in particular.

Given that an Egyptian bank may have given Trump a big infusion of cash after the first meeting, I can understand why everyone would be so forgetful about this meeting.

But given the likelihood all these people will lose their Fifth Amendment privilege after they get pardoned in the next few weeks, perhaps they can be asked to refresh their memory about why the Egypt operation was so closely tied to the Russian one.

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Trump Prepares to Pardon Massive Tax Cheat Paul Manafort While Claiming that Suspected Midscale Tax Cheat Hunter Biden Disqualifies Joe

December 13, 2020/49 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Financial Fraud /by emptywheel

Poor Glenn Greenwald. After news broke that Hunter Biden was under investigation for things that have nothing to do with the allegations Rudy Giuliani was pressing from a laptop purportedly left at a repair office, Glenn wrote a post (purportedly unlocked, though it’s not) claiming that everyone who had said Rudy’s attempts to float claims from the Biden laptop was Russian disinformation had been proven wrong.

Since then, Donald Trump himself connected the investigation to his call to Volodymyr Zelenskyy, part of Rudy’s work with a bunch of Russian-backed Ukrainians — at least one of whom has since been sanctioned by the Trump Treasury Department as a Russian agent — to dig up dirt on Hunter Biden.

And the NYT published a story that revealed that the Pittsburgh US Attorney’s office — set up to vet the crap coming from Rudy because of his and therefore its ties to Russian agents — got the laptop.

Even worse for Glenn, the story revealed that those agents being run by a hyper-political US Attorney examined the laptop and found nothing.

The F.B.I. viewed the investigative steps into Mr. Biden that Mr. Brady sought as unwarranted because the Delaware inquiry involving money laundering had fizzled out and because they were skeptical of Mr. Giuliani’s material. For example, they had already examined a laptop owned by Mr. Biden and an external hard drive that had been abandoned at a computer store in Wilmington and found nothing to advance the inquiry.

In other words, people with subpoena power, under pressure to find something incriminating against Hunter Biden in the laptop that Glenn demanded the press drop everything to focus on, had nothing of real investigative interest on it. The DE investigation purportedly comes from normal channels, like Suspicious Activity Reports and divorce proceedings. Importantly, every report thus far say the investigation doesn’t implicate the President-Elect, the key thing those waggling the laptop tried to claim.

Which was part of the point of it being disinformation: Stupid people could and did take things out of context and insinuate something nefarious was going on without evidence that it was, all because some of the emails on the laptop were “authentic.”

Meanwhile, the DE US Attorney’s office has actually been investigating Hunter Biden for longer than the entire Mueller investigation, at least two full years. They have reportedly ruled out a money laundering case but are now scrutinizing the younger Biden for tax crimes.

In 2018, the F.B.I. and the U.S. attorney’s office in Wilmington, Del., quietly began investigating whether Hunter Biden had violated money laundering laws, according to people with knowledge of the inquiry.

Investigators eventually determined that the money laundering aspect of the Hunter Biden inquiry was not going to lead to charges. But they had discovered potential tax law violations and felt they had the makings of a strong tax case against him, according to several people familiar with the matter. The inquiry came to involve I.R.S. agents.

Donald Trump is taking the report that the original US Attorney’s office investigating the President-Elect’s son, in Delaware, has focused on tax crimes after ruling out money laundering as proof that the entire Biden Administration will be brought down by the legal troubles of someone who will not be given a nepotism appointment in the White House.

Donald Trump almost certainly will, sometime over the next 38 days, pardon his former campaign manager, Paul Manafort, for crimes involving both money laundering and tax crimes. Paulie’s crimes were at least one order of magnitude bigger than the ones for which Hunter Biden is being investigated (and Biden seems to believe he told his tax advisors honestly what he had earned, which Paulie was shown not to have at trial).

In other words, over the next several weeks, Trump will pardon Paulie for a crime far larger than the ones that — he claims — are of a magnitude that should disqualify someone not named Hunter Biden.

That’s worth keeping in mind in the days ahead.

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The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

December 12, 2020/148 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.

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Republicans Push to Punish Eric Swalwell because He Didn’t Sell Out the Country Like They Did

December 11, 2020/89 Comments/in 2016 Presidential Election, emptywheel, Intelligence, Mueller Probe /by emptywheel

I’d like to tell a story about how six different men responded when law enforcement approached them about possible compromise by foreign spies.

Carter Page knowingly shares non-public information with known Russian spies

When Carter Page learned that he had been named in an indictment of Russian spies, he called up a Russian minister at the UN to tell him, in the spirit of openness, he was the guy identified as the recruiting target in the indictment. When the FBI interviewed him about his relationships with those foreign spies, Page admitted he had called the Russian minister, but explained that his relationship with the Russian intelligence officer was positive for him. He later explained that sharing non-public information with people he knew to be foreign spies helped both the US and Russia. Page enthusiastically took a trip to Moscow to give two speeches that — witnesses observed — normally featured far more prominent speakers than Page. Page came back from that trip bragging about the “open checkbook” he had been offered to start a pro-Russian think tank. When Page was asked a year later whether he could see why people thought he was being recruited, he disagreed and — according to an FBI 302 — backed off his prior admission to the FBI that he had reached out to the Russian minister.

For three years, the GOP has claimed that Carter Page is a maligned victim of FBI overreach.

George Papadopoulos refuses to explain the back channel meeting with Putin he tried to schedule

When the FBI first interviewed George Papadopoulos about the suspicious job offers Sergei Millian offered him — an offer to pay him so long as he also worked at the White House, asked how he learned in advance that the Russians had dirt on Hillary that they planned to release to help Trump get elected, and told him they thought he was being recruited, he lied. Among other things, Papadopoulos hid his entire relationship with one Russian national, Ivan Timofeev, whom he had interacted with. After the interview, Papadopoulos called Trump’s personal lawyer and told him of the interview. As others did, Papadopoulos crafted a false statement to share with Congress. In subsequent interviews, even after he agreed to cooperate, Papadopoulos hid the existence of a phone he used to interact with Joseph Mifsud. When asked about notes planning a back channel meeting with Putin’s people in London in September that ultimately didn’t happen, Papadopoulos claimed he couldn’t read his notes to explain the plans.

The GOP not only claimed that Papadopoulos was a maligned hero, the Attorney General of the United States assigned a US Attorney, in part, to fly around the world chasing Papadopoulos’ conspiracy theories in an attempt to substantiate his denials that these were Russian assets trying to cultivate Papadopoulos.

Mike Flynn gets a defensive briefing then hides his Turkish clients

Shortly after the FBI sat down with Donald Trump and Mike Flynn to warn them, generally, about how foreign intelligence services would increase their focus on the two and those around them, Mike Flynn went back to his business partner and the go-between with his Turkish clients, and adopted a new name for the project for Turkey — Confidence rather than Truth — and a payment vehicle that would hide the true client, attempting to sever the prior discussions directly with Turkey’s ministers from the half-million dollar deal that resulted.

Trump just pardoned Flynn for his efforts to hide those ties.

Rather than cooperating with the FBI about Flynn’s suspect Russian calls, Trump fires them

When DOJ came to the White House on January 26, 2017 and told White House counsel Don McGahn that Mike Flynn — seemingly without any approval from Donald Trump himself and clearly without notifying the Vice President — had called up the Ambassador from Russia and, in a conversation where the Ambassador was addressing other issues, raised sanctions imposed to punish Russia and asked the Ambassador not to respond in kind, and then lied about that publicly, McGahn assigned lawyer John Eisenberg to figure out whether Flynn could be prosecuted. Chief of Staff Reince Priebus tried to find out what kind of surveillance Flynn had been and was under. Trump first asked the head of the FBI for loyalty, then asked him to let the investigation of Flynn go, and then fired him to end the investigation.

Trump just pardoned Mike Flynn claiming that it was wrong for the FBI to try to figure out why Flynn had secretly undermined sanctions and then lied about it.

Trump calls Paul Manafort “very brave” for hiding details about his Russian intelligence officer partner

When the government entered into a cooperation agreement with Paul Manafort in 2018, in part to learn what Manafort knew about his business partner Konstantin Kilimnik’s ties to Russian intelligence, and particularly to learn why Manafort had swapped campaign polling data and the campaign’s strategy to win swing states with a discussion of carving up Ukraine and payoffs from Ukranian and Russian oligarchs, the President’s defense attorney remained in regular contact with Manafort’s lawyer to learn about the interrogations. After prosecutors told Judge Amy Berman Jackson on November 26 that Manafort had been lying rather than cooperating — in significant part, it would become clear, to protect his Russian spy business partner — Rudy complained on the President’s behalf about “the un-American, horrible treatment of Manafort.” Not long later, Trump would call Manafort “very brave” for (among other things) lying to prosecutors to protect his Russian spy business partner.

Eric Swalwell cooperates with the FBI and cuts off the Chinese intelligence officer trying to recruit him

According to a recent Axios piece witten without context, when the FBI approach Eric Swalwell and told him a woman volunteering with his campaign was a Chinese spy, he cooperated with the FBI and cut off all contact with her.

A statement from Swalwell’s office provided to Axios said: “Rep. Swalwell, long ago, provided information about this person — whom he met more than eight years ago, and whom he hasn’t seen in nearly six years — to the FBI. To protect information that might be classified, he will not participate in your story.”

What happened: Amid a widening counterintelligence probe, federal investigators became so alarmed by Fang’s behavior and activities that around 2015 they alerted Swalwell to their concerns — giving him what is known as a defensive briefing.

Swalwell immediately cut off all ties to Fang, according to a current U.S. intelligence official, and he has not been accused of any wrongdoing.

For this, GOP Majority Leader Kevin McCarthy and others argue, Swalwell should be kicked off the House Intelligence Committee.

McCarthy, however, is demanding answers from Pelosi and Rep. Adam Schiff, chair of that committee, after Swalwell said they knew about the report.

“This is a national security threat,” McCarthy said. “Now we have Eric Swalwell, who’s been swindled by the Chinese, but what’s even more interesting here is why did he attack the American Director of Intelligence John Ratcliffe’s report talking about the expansion of China spying throughout … just last week. He attacked … Ratcliffe defending China.”

“This man should not be in the intel committee. He’s jeopardizing national security,” he doubled down, adding, “When did Nancy Pelosi know of this and why did she maintain him on the committee? Adam Schiff, who has spent four years as chair worried about the foreign intervention into our country, knowingly keep an individual on the committee, if he knew, as Swalwell says, that he was with a Chinese individual who was a spy, who helped him run for Congress?”

I can only assume that McCarthy thinks that Swalwell cooperated too much with the FBI and should have lied or fired people instead.

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Steve Bannon Hires a Pardon Broker (and Rudy Giuliani Lawyer) to Replace His Competent Lawyer

December 11, 2020/46 Comments/in 2016 Presidential Election, 2020 Presidential Election, Financial Fraud, Mueller Probe /by emptywheel

Steve Bannon just filed notice of what lawyer will defend him in his SDNY prosecution for defrauding Trump chumps. He had been represented by the very competent Bill Burck. But after Bannon started making death threats against Anthony Fauci and Christopher Wray, Burck dropped him.

Instead, Bannon hired Robert Costello.

TO THE CLERK OF COURT AND ALL PARTIES OF RECORD: PLEASE TAKE NOTICE that Robert J. Costello of Davidoff Hutcher & Citron, LLP, with offices located at 605 Third Avenue, New York, New York 10158, hereby appears on behalf of Defendant Stephen Bannon.

Costello represents Rudy Giuliani in his many sordid influence peddling investigations.

He’s also the guy who tried to buy Michael Cohen’s silence with a pardon, an investigation that fairly obviously got referred under Mueller. I guess that makes it clear what Bannon’s defense strategy will be.

The problem is, SDNY is now on notice (if they weren’t already by Trump’s promises that “Bannon will be okay”). So they can simply share their case file with New York State, where fraud is also a crime.

I may be missing something but I don’t think Trump’s evil genius is on his A game.

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In His Mike Flynn Opinion, Emmet Sullivan Made a Finding of Fact Against Billy Barr’s New Reality

December 9, 2020/134 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

I’ve been unpacking the Judge Emmet Sullivan opinion dismissing Mike Flynn’s guilty verdicts.

This post lays out how Sullivan asserts authority to refuse the government’s motion to dismiss Flynn’s prosecution, but does not do so, because the question is moot.

This post shows that Sullivan laid out evidence that DOJ’s motion to dismiss was pretextual. He declined to rule that the motion itself was pretextual, because the question is moot. But he made it clear he thinks DOJ’s excuses for blowing up the Flynn prosecution are bullshit.

And this post notes that, before Sullivan started mooting the shit out of DOJ’s interest in his docket, he struck some documents that Sidney Powell had submitted to his docket because the government had not authenticated them, without at the same time striking another document that the government didn’t rely on but had not authenticated. It’s a tactical step, I think, that leaves everything else in his docket as authenticated, even though DOJ stopped short of standing by all those exhibits.

Before I get into what Sullivan says about Trump’s pardon power — which, make no mistake, Sullivan affirms as expansive — I’d like to lay out some findings of fact that Sullivan includes in this opinion. He includes a number of other findings of fact that are tangential to the question of a pardon but which Bill Barr and Donald Trump have staked a lot on. He does so, he explains, because the government has invited him to.

The Court is mindful that it is “particularly ill-suited” to reviewing the strength of the case. Wayte v. United States, 470 U.S. 598, 607 (1985); see also In re United States, 345 F.3d 454, 455 (7th Cir. 2003) (finding that the trial court’s belief that “the evidence was strong and conviction extremely likely” was an inappropriate basis to deny leave). That said, the role of the Court is to conduct an “examination of the record” in order to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.” Rinaldi, 434 U.S. at 30. Moreover, the Court examines the factual basis underlying the government’s reasons because not doing so would amount to rubber stamping the government’s decision, contrary to the requirement of Rule 48(a). Here, the government has invited the Court’s examination of its evidence. See Hr’g Tr., ECF No. 266 at 42:22-43:1 (stating that “we’re completely unafraid here to address . . . the specifics as to why we thought we needed to dismiss this case. . . . we’d be happy to go through the evidence.”). Accordingly, the Court will briefly address some of the evidence the government points to as it is troubled by the apparently pretextual nature of certain aspects of the government’s ever-evolving justifications. See Foster v. Chatman, 136 S. Ct. 1737, 1751 (2016) (“[T]he prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual.”).

The findings of fact Sullivan addresses primarily come in this paragraph on materiality… [my numbering throughout]

Several of the government’s arguments regarding materiality also appear to be irrelevant or to directly contradict previous statements the government has made in this case. For example, as Mr. Gleeson points out, many of the “bureaucratic formalities” [1] the government asserts reveal the “confusion and disagreement about the purpose and legitimacy of the interview and its investigative basis”—such as the drafting of the FBI’s Closing Communication or internal conversations between FBI and Department of Justice officials regarding whether to notify the Trump administration of Mr. Flynn’s false statements—are not relevant to proving materiality. See Amicus Reply Br., ECF No. 243 at 19. Nor is it [2] relevant whether Mr. Flynn was an “agent of Russia” or guilty of some other crime at the time he made the false statements. Furthermore, while the government argues that, “since the time of [Mr. Flynn’s guilty] plea, [3] extensive impeaching materials had emerged about key witnesses the government would need to prove its case,” Gov’t’s Reply, ECF No. 227 at 35; the government had been aware of much of this evidence since early on in the case, see, e.g., Gov’t’s Response Def.’s Mot. Compel, ECF No. 122 at 8-9.

And this passage assessing the evidence that Flynn’s lies were lies.

[4] With regard to the “inconsistent records” rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn. Furthermore, the government’s reliance on Director Comey’s opinion about whether Mr. Flynn lied is suspect given that Director Comey was not present at the interview and that there are valid questions regarding the admissibility of his personal opinion.

With regard to Mr. Flynn’s alleged “faulty memory,” Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, [5] who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office. With regard to the government’s concerns about the Assistant Director for Counter Intelligence’s contemplating the goal of the interview, [6] an objective interpretation of the notes in their entirety does not call into question the legitimacy of the interview. Finally, and critically, under the terms of Mr. Flynn’s cooperation agreement, [7] the government could have used his admissions at trial, see Plea Agreement, ECF No. 3 at 8 ¶ 11; but the government ignores this powerful evidence.

In these passages, District Court Judge Emmet Sullivan finds as fact that:

The government’s assertion that there was confusion surrounding Mike Flynn’s interview does not change that his lies were material.
DOJ’s [draft] conclusion that Flynn was not an agent of Russia does not change that his lies were material.
The evidence impeaching Peter Strzok and others does not change that Flynn’s lies were material (and, as Sullivan notes, even the government agreed before Flynn pled guilty).
Nothing in the public record substantiates that the 302 of Janaury 24, 2017 Flynn’s interview does not accurately reflect what happened in the interview.
Flynn’s claims to be forgetful are not consistent with the fact that, as the incoming National Security Advisor, he personally asked Sergey Kislyak to undermine President Obama’s policy before Trump took office.
Nothing in Bill Priestap’s notes call into question the legitimacy of the Mike Flynn interview.
The government could have relied on Mike Flynn’s admissions at trial.

One way to think about this language is that Billy Barr attempted to create a new set of facts by submitting documents from the Jeffrey Jensen investigation to Sullivan’s docket and making false claims about them, thereby attempting to annul the set of facts that led DOJ (even DOJ under Bill Barr, repeatedly) to argue that Mike Flynn’s lies were serious. Judge Sullivan is having none of Billy Barr’s new reality, in significant part because DOJ has not explained what changed from its prior assertions of fact and partly because none of the claims it has made about the so-called new evidence refutes DOJ’s prior representations.

These findings of fact may have a more specific effect, though. Billy Barr has served up his different set of facts and based off those, John Durham is attempting to criminalize the decisions of the people that prosecuted Mike Flynn for telling the FBI material lies. DOJ generally has no basis to appeal Sullivan’s findings, because its position in the docket is (as Sullivan notes repeatedly) moot. But Durham has even less ability to contest Sullivan’s findings of fact; he has no standing.

So unless DOJ finds a way around the fact that they themselves have mooted any further involvement before Judge Sullivan, then, any further investigation into the circumstances of Flynn’s prosecution will have to contend with the fact that a judge has already found a number of key premises entertained by those pushing the investigation into the investigation to be false.

At least as of right now, it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

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Before He Mooted DOJ’s Motions in the Mike Flynn Case, Emmet Sullivan Treated DOJ’s Authentication as Official

December 8, 2020/30 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

I’m writing a bunch of posts on Judge Emmet Sullivan’s order dismissing Mike Flynn’s prosecution as moot.

This post laid out how Sullivan established that he has the authority to rule against DOJ’s motion to dismiss the Flynn case, but declined to do so because the question is moot

This post laid out the evidence Sullivan laid out that DOJ’s motion to dismiss was pretextual. He declined to rule that the motion itself was pretextual, because the question is moot. But he made it clear he thinks DOJ’s excuses for blowing up the Flynn prosecution are bullshit.

As I noted, because the order itself moots all pending DOJ issues in the docket, the government would have a hard time appealing either of those issues, especially given that Sullivan didn’t ultimately rule on them. DOJ has no business making requests in this docket because the matter on which they have primacy, prosecutions, has been mooted by Trump’s pardon. Sullivan has reclaimed authority over his docket.

In this post, I’d like to look at something tactical Judge Sullivan did just before he started mooting DOJ’s role, which looks like this in the docket.

Before he ruled on the pardon, Judge Sullivan first struck four exhibits from the docket:

228-2: Some texts involving Peter Strzok
228-4: Sidney Powell’s submission of a motion from Amaro Goncalves
228-5: Sidney Powell’s submission of a motion involving Ted Stevens
248-1: Some texts from FBI intelligence analysts

With the exception of the last of these, these aren’t that important — as I noted in this post, Sidney Powell’s submission of prior filings from other lawyers is the rare moment when she can be relied on to be more accurate than the government (or any bum off the street). But by striking those other four exhibits, this order makes clear that Judge Sullivan considers the claims in this DOJ filing to be operative.

Interestingly, Sullivan did not strike a different exhibit — basically some Strzok and Page texts DOJ repackaged to be assholes — which are referred to in the paragraph before the one excepting out those four (which I’ve italicized), which DOJ treats as the same, stuff they’re not relying on, but which they do not decline to authenticate.

On September 2018, the DC-USAO received from the Department of Justice Office of the Inspector General a complete set of the text messages between OGC Attorney Lisa Page and DAD Peter Strzok. As the Court is well-aware, the government first disclosed the existence of these text messages to Mr. Flynn on November 30, 2017. Thereafter, the government provided excerpts of these text messages and links to publicly available compilations of these communications to Mr. Flynn on March 13, 2018, June 24, 2018, October 28, 2019, and April 29, 2020. On September 23, 2020, the government provided Mr. Flynn with additional text messages from the set it had received from the OIG in September 2018. The government is not relying on these additional text messages in support of its motion to dismiss.

The government also notes that there are Discovery Documents attached to Mr. Flynn’s filings that it has not authenticated for the purpose of this filing because those documents were not relied upon by the government in its motion to dismiss or arguments in support thereof. See ECF Nos. 228-2, 228-4, 228-5, and 248-1.

Effectively then, Sullivan has struck stuff submitted by Flynn’s lawyers that DOJ was not relying on, but not stuff DOJ submitted that it said it was not relying upon.

Sullivan left on the docket a bunch of filings that DOJ fell far short of validating in its filing, as laid out here, including the filings that DOJ altered. But he also made it clear that that filing authenticating exhibits in his docket does remain operative.

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Judge Sullivan Calls Bullshit on DOJ’s Pretextual Reasons for Blowing Up the Mike Flynn Prosecution

December 8, 2020/35 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

As described in this post, Judge Emmet Sullivan dismissed Mike Flynn’s prosecution as moot. In his opinion dismissing the case, he asserted his authority to weigh whether DOJ’s motion to dismiss Flynn’s prosecution was in the public interest, while stopping short of doing so since the decision is moot. That part of the opinion affirmed District court authority to weigh whether DOJ has done something corrupt in blowing up Mike Flynn’s plea.

Along the way, Sullivan made it quite clear he believed that DOJ was lying about their two main excuses for blowing up Flynn’s prosecution — that his lies weren’t material nor were they clearly lies.

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. The government advances two primary reasons8 justifying dismissing the case based on its assessment of the strength of the case: (1) it would be difficult to prove the materiality of Mr. Flynn’s false statements beyond a reasonable doubt; and (2) it would be difficult to prove the falsity of those statements beyond a reasonable doubt. See Gov’t’s Reply, ECF No. 227 at 31. As explained below, the Court finds both stated rationales dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.

Sullivan argues Flynn’s lies were material under the DC circuit’s standard

As Sullivan laid out, in their efforts to justify blowing up the Mike Flynn prosecution, the government adopted a totally new standard for materiality.

In making its arguments, however, the government relies on a newly-minted definition of “materiality” that is more circumscribed than the standard in this Circuit. The government describes the materiality threshold as requiring more than “mere ‘relevance’”; rather, the false statement must have “probative weight” and be “reasonably likely to influence the tribunal in making a determination required to be made.” Gov’t’s Mot. Dismiss, ECF No. 198 at 12-13 (quoting Weinstock v. United States, 231 F.2d 699, 701 (D.C. Cir. 1956)). Therefore, “[t]he materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular ‘subject of [their] investigation.’” Id. at 13 (quoting United States v. Kim, 808 F. Supp. 2d 44, 59 (D.D.C. 2011)).

After laying out what the standard really is — whether a lie is capable of affecting the general function of the FBI — Sullivan then notes that the government had previously argued that Flynn’s lies were material.

Given the materiality threshold’s expansive scope, the government’s new use of the narrowed definition of “materiality” is perplexing, particularly given that the government has previously argued in this case that the materiality standard required only that a statement have a “natural tendency to influence, or [be] capable of influencing.” See Gov’t’s Surreply Def.’s Reply Support Mot. Compel, ECF No. 132 at 10-11. The government, for its part, offers no response as to why it relies on this new, more stringent definition. Nor does the government direct the Court’s attention to any other case in which it has advanced this highly-constrained interpretation of materiality as applied to a false statements case.

He then lays out how — going even further — DOJ claimed it didn’t need to adhere to any standard of law, much less the precedent for this circuit. Sullivan uses that to argue that the government has lost the presumption of regularity.

Notably, during the September 29, 2020 motion hearing, the government seemed to suggest that, when moving for dismissal of an action pursuant to Rule 48(a), the government need not refer to the correct materiality standard at all when determining whether a false statement is “material.” See Hr’g Tr., ECF No. 266 at 78:21-79:3 (“[W]hen we move to dismiss, the question in our mind is not what is the legal standard of materiality for whether the evidence here will be sufficient to sustain a conviction on appeal. The question is whether we, the Department of Justice, think this evidence is material . . . .”). In view of the government’s previous argument in this case that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s investigation, the government’s about-face, without explanation, raises concerns about the regularity of its decision-making process.

Importantly (as I’ll return to), the opinion engages in a page-long discussion about the bullshit excuses DOJ has floated to argue these lies weren’t material.

Several of the government’s arguments regarding materiality also appear to be irrelevant or to directly contradict previous statements the government has made in this case. For example, as Mr. Gleeson points out, many of the “bureaucratic formalities” the government asserts reveal the “confusion and disagreement about the purpose and legitimacy of the interview and its investigative basis”—such as the drafting of the FBI’s Closing Communication or internal conversations between FBI and Department of Justice officials regarding whether to notify the Trump administration of Mr. Flynn’s false statements—are not relevant to proving materiality. See Amicus Reply Br., ECF No. 243 at 19. Nor is it relevant whether Mr. Flynn was an “agent of Russia” or guilty of some other crime at the time he made the false statements. Furthermore, while the government argues that, “since the time of [Mr. Flynn’s guilty] plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case,” Gov’t’s Reply, ECF No. 227 at 35; the government had been aware of much of this evidence since early on in the case, see, e.g., Gov’t’s Response Def.’s Mot. Compel, ECF No. 122 at 8-9.

Sullivan closes that section by reasserting the standard that the government can’t just invent bullshit to justify its decisions.

Under Ammidown, the Court must be satisfied that the government undertook a “considered judgment,” 497 F.2d at 620; and asserting a factual basis that is largely irrelevant to meeting any legal threshold likely does not meet this standard.

Sullivan debunks DOJ’s claims that Flynn may not have lied

Then Sullivan debunks DOJ’s claims that there was any doubt that Flynn lied, focusing primarily on the import of the fact that Peter Strzok and Joe Pientka didn’t believe he exhibited signs of lying when walking out of the interview. Primarily, this discussion focuses on how the claim is legally irrelevant and conflicts with what DOJ has said in the past.

The government’s second rationale is that it “does not believe it could prove that Mr. Flynn knowingly and willfully made a false statement beyond a reasonable doubt.” Gov’t’s Mot. Dismiss, ECF No. 198 at 18; see also Gov’t’s Reply, ECF No. 227 at 38-39. To support this rationale, the government initially pointed to the fact, which was known at the time Mr. Flynn pled guilty, that the FBI agents who interviewed him did not think he was lying, and it also noted the “equivocal” or “indirect” nature of Mr. Flynn’s responses. Gov’t’s Mot. Dismiss, ECF No. 198 at 18. The government further contends that evidentiary problems have “emerged” including: (1) “inconsistent FBI records as to the actual questions and statements made,” id. at 19; (2) “Director [James] Comey’s own sentiment that the case was a ‘close one,’” id. (quoting Ex. 5 to Gov’t’s Mot. Dismiss, ECF No. 198); and (3) “substantial impeaching materials on the key witnesses,”9 Gov’t’s Reply, ECF No. 227 at 39.

[snip]

As an initial matter, whether or not the FBI agents thought Mr. Flynn was lying is irrelevant in a false statements case. See Brogan v. United States, 522 U.S. 398, 402 (1998). And the government has not explained how evidence that the government previously stated was “consistent and clear,” Gov’t’s Surreply, ECF No. 132 at 4-5; suddenly became “equivocal” or “indirect.” With regard to the “inconsistent records” rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn.

Sullivan then goes on to debunk a lot of the other bullshit DOJ threw into his docket. I’ll return to this. But the important point is that Sullivan relied on DOJ’s past assertions to debunk the claims that DOJ later threw up.

Having reviewed DOJ’s two substantive excuses for blowing up Flynn’s prosecution, Sullivan suggests they’ve forfeited the presumption of regularity they’d need to convince him to dismiss Mike Flynn’s prosecution, but ultimately avoids saying whether he would have rejected their request or not because the question is moot.

Again, under Ammidown, the Court must be satisfied that the government undertook a “considered judgment.” 497 F.2d at 620. Asserting factual bases that are irrelevant to the legal standard, failing to explain the government’s disavowal of evidence in the record in this case, citing evidence that lacks probative value, failing to take into account the nature of Mr. Flynn’s position and his responsibilities, and failing to address powerful evidence available to the government likely do not meet this standard.

Thus, the application of Rule 48(a) to the facts of this case presents a close question. However, in view of the President’s decision to pardon Mr. Flynn, Mr. Flynn’s acceptance of the pardon, and for the reasons stated in the following section, the appropriate resolution is to deny as moot the government’s motion to dismiss pursuant to Rule 48(a).

So first Sullivan laid out that he had the authority to decide, but stopped short of deciding because the question is moot. Then he laid out abundant reason why DOJ had forfeited the presumption of regularity such that their rationale for asking that the case be dismissed would otherwise have to be accepted, but once again stops short of ruling, because the question is moot.

He has the authority to decide but won’t because the question is moot.

He shows all the evidence that the government is full of shit, but does not rule as such, because the question is moot.

Because the government has very little way to appeal either of these rulings, the rest of the opinion (and the steps Sullivan took to get there) will likely never be appealed. Sullivan has laid a record out that almost certainly cannot be challenged. He has used the mootness of the question as a shield to lay out two key judgments: that he could decide, and that he could have decided against the government.

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Judge Sullivan Uses Mike Flynn Dismissal to Emphasize His Own Authority

December 8, 2020/14 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Judge Emmet Sullivan just dismissed, as moot, the prosecution of Mike Flynn (he did not dismiss the case with prejudice, as DOJ had asked, but that likely does not matter). He did three things, which I’ll take in turn in a series of posts.

First, he asserted the ability to deny DOJ’s motion to dismiss — while stopping short of doing so — in a way that DOJ might otherwise appeal if this were not mooted.

As a reminder, when Bill Barr interfered in this prosecution in May, he ceded that Judge Sullivan had some say over the dismissal. But along the way DOJ repeatedly argued that Sullivan couldn’t actually examine the circumstances of the dismissal. In this opinion, Sullivan asserted the ability to weigh just that. He made it clear that the Supreme Court intended courts to have a say.

Despite the Supreme Court’s concerns, the Advisory Committee’s final draft of Rule 48(a) again required only that prosecutors submit a statement of reasons for dismissal. See Frampton, Why Do Rule 48(a) Dismissals Require “Leave of Court”?, supra, at 36-37. However, in promulgating the rule, the Supreme Court deleted this requirement and added the requirement that the prosecutor obtain leave of court. Id. at 37; see also Ammidown, 497 F.2d at 620. In so doing, the Court made it “manifestly clear that [it] intended to clothe the federal courts with a discretion broad enough to protect the public interest in the fair administration of criminal justice.” Cowan, 524 F.2d at 512.

He then invokes Ammidown for the principle that the court can weigh whether these actions are in the public interest.

This Circuit’s precedent is consistent with this history. For example, in Ammidown, the D.C. Circuit acknowledged that Rule 48(a) “gives the court a role” when “the defendant concurs in the dismissal but the court is concerned whether the action sufficiently protects the public.” 497 F.2d at 620. The D.C. Circuit explained that courts carry out this role in such a situation “to prevent abuse of the uncontrolled power of dismissal previously enjoyed by prosecutors.” Id. (citation omitted).

He then addresses DOJ’s argument that Fokker only gives District courts the ability to protect a defendant, not to protect public interest, arguing that it is not on point here, because this involved a guilty plea.

Despite this language in Ammidown, however, the government relies on United States v. Fokker Services B.V., 818 F.3d 733 (D.C. Cir. 2016), to argue that judicial intervention is warranted only when the defendant objects to dismissal because “the ‘principal object of the leave of court requirement’ has been understood to be a narrow one—‘to protect a defendant against prosecutorial harassment.’” Gov’t’s Reply, ECF No. 227 at 20-21 (quoting Fokker, 818 F.3d at 742).

But Fokker does not address the Court’s authority to consider an unopposed Rule 48(a) motion; it involved a deferred prosecution agreement rather than a guilty plea. Fokker, 818 F.3d at 737. Fokker also does not suggest that courts may only review opposed Rule 48(a) motions for prosecutorial harassment— the case simply quotes language from Rinaldi, stating that preventing harassment is the principal object of the rule. Id. at 742 (quoting Rinaldi, 434 U.S. at 29 n.15).

Importantly, Sullivan addressed a claim DOJ made that is not based on precedent — that the District does not have to operate as a rubber stamp, but his only role is to determine whether the entire Executive Branch supported an outcome. Sullivan made the case that a District court can still make a decision about the public interest, not just what the Executive wanted.

At the September 29, 2020 motion hearing, the government emphasized a different aspect of its argument. It conceded that the Court should not act as a rubber stamp and that it has a role to play when presented with an unopposed Rule 48(a) motion. Hr’g Tr., ECF No. 266 at 40:9-12. But, in the government’s view, this role is limited to determining whether “the decision to dismiss is the considered view, the authoritative view of the Executive Branch as a whole,” id.; rather than being the “rogue” decision of an individual prosecutor, id. at 99:16-23.7 The government argued that this standard appropriately reconciles the concerns about favoritism and pretext that led to the “leave of court” language in the Rule with the separation of powers principal that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693 (1974) (citation omitted); see also Fokker, 818 F.3d at 742 (“[D]ecisions to dismiss pending charges . . . lie squarely within the ken of prosecutorial discretion.”). The Court is not persuaded by the government’s argument, however, because it fails to acknowledge the possibility that the “considered view of the Executive Branch as a whole” could be contrary to the public interest.

In so doing, Sullivan makes the case that Districts can also review a case for prosecutorial abuse.

The court’s role is not “to serve merely as a rubber stamp for the prosecutor’s decision,” even when “the defendant concurs in the dismissal.” Ammidown, 497 F.2d at 620, 622. Rather, it is the court’s “duty to exercise a discretion for the protection of the public interest.” Cowan, 524 F.2d at 511. The trial court therefore conducts an “examination of the record” to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.” Rinaldi, 434 U.S. at 30.

Later in the opinion, Sullivan noted that because the government had chosen to give more than conclusory statements about why they wanted to dismiss the prosecution, he could weight those more substantive reasons.

The majority of the cases finding denial of leave appropriate based on “conclusory statements” most often involve motions providing only one or two sentences referring generally to the “public interest.” See, e.g., Derr, 726 F.2d at 619 (affirming denial of leave to dismiss when the government offered no reasons for dismissal other than that it would “best meet the ends of justice”). Here, on the other hand, the government has sought to justify its decision to seek dismissal by providing several reasons and facts underlying its decision. See id.

However, while not conclusory, many of the government’s reasons for why it has decided to reverse course and seek dismissal in this case appear pretextual, particularly in view of the surrounding circumstances.

Then, buried on page 25, Sullivan argues that District courts can rule against DOJ in these narrow circumstances to protect the public interest and reiterates the authority of courts to rule against the government in case of corruption.

With the above principles in mind, in response to the government’s motion to dismiss under Rule 48(a), the Court holds that a judge may deny an unopposed Rule 48(a) motion if, after an examination of the record, (1) she is not “satisfied that the reasons advanced for the proposed dismissal are substantial”; or (2) she finds that the prosecutor has otherwise “abused his discretion.” Ammidown, 497 F.2d at 620-22.

[snip]

In addition, as indicated by the history of Rule 48(a), the corrupt dismissal of politically well-connected individuals would also constitute an abuse of discretion. See Woody, 2 F.2d at 262.

So at a key level, the opinion lays out the principle that DOJ fought hard to deny — that judges have their own authority and they serve the public.

Since this case has been mooted, DOJ will have a very difficult time challenging this language (other DC District judges could rely on it going forward, but it is not a precedent). Sullivan, knowing that DOJ also had no more authority to challenge his order, asserted his authority.

This language, while not circuit precedent, may be cited going forward.

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