On Emmet Sullivan’s Order for Mike Flynn’s 302s: Be Careful What You Ask For

In his sentencing memorandum, Mike Flynn waved the following in front of Judge Emmet Sullivan, like a red cape before a bull.

There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.20 General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.21

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”22

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn.23 By the agents’ account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. 24 The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.25 Before the interview, FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”26 One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”27

He cited a memo that fired FBI Deputy Director Andrew McCabe wrote the day of Flynn’s interview and the interview report (called a “302”) that fired FBI Special Agent Peter Strzok had a hand in writing up in August 2017, some seven months after the interview.

In response, the judge in his case, Emmet Sullivan, issued an order asking not just for those two documents, but any documents related to the matters Flynn writes up, to be filed by tomorrow, along with the government’s reply to his memorandum.

And so it is that on the one year anniversary of the order Sullivan issued to ensure that Flynn got any exculpatory information relating to his plea, that the hopes among the frothy right that Flynn’s prosecution (including for lying about his sleazy influence peddling with Turkey) will be delegitimized and with it everything that happened subsequent to Flynn’s plea might be answered.

Or maybe not.

For those unfamiliar with his background, back in the waning years of the Bush Administration, Sullivan presided over the Ted Stevens’ prosecution. After Stevens was convicted, DOJ started ‘fessing up to a bunch of improprieties, which led Sullivan (on newly confirmed Eric Holder’s recommendation) to throw out the conviction. Sullivan demanded a report on the improprieties, which ended up being a scathing indictment of DOJ’s actions (that nevertheless didn’t lead to real consequences for those involved). Since that time, Sullivan has been wary of DOJ’s claims, which has led him to do things like routinely issue the order he did with Flynn’s case, making sure that defendants get any exculpatory evidence they should get.

Regardless of how this request works out, you should applaud Sullivan’s diligence. He’s one of just a few judges who approaches the government with the skepticism they deserve. And to the extent that problems with our criminal justice system only get noticed when famous people go through it, it’s important that this one be treated with such diligence.

Still, those problems include both abuse, like we saw in the Stevens case, and special treatment, like David Petraeus got, and it’s actually unclear whether Sullivan’s request will uncover one or the other (or neither). I say that for several reasons.

First, because the public evidence suggests that — if anything — Obama’s appointees demanded FBI proceed cautiously in their investigation of Trump’s people, delaying what in any other case would have been routine early collection. When FBI discovered Flynn making suspicious comments to Sergei Kislyak, concerns about how to proceed went all the way up to Obama.

Moreover, contrary to most reporting on this interview, the FBI’s suspicions about Flynn did not arise exclusively from his calls to Kislyak. The interview happened after a counterintelligence investigation into Flynn had been open for months, as laid out by the House Intelligence Committee Russia report.

Director Comey testified that he authorized the closure of the CI investigation into general Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure of the CI investigation was imminent.

If McCabe believed the CI investigation into Flynn had produced mostly fluff, it might explain why he would approach setting up an interview with him with less than the rigor that he might have (as arguably happened with Hillary in the analogous situation). He didn’t expect there to be a there there, but then there was (remember, Jim Comey has repeatedly said that the one thing that might have led the Hillary investigation to continue past her interview as if they caught her lying; the difference is that Flynn told obvious lies whereas Hillary did not).

Finally, there’s one other, major reason to think this ploy may not work out the way Flynn might like. That’s because the frothy right, its enablers in Congress, and the White House itself has pursued this line for most of a year. Particularly in the wake of Flynn’s cooperation agreement, claiming that Flynn was just confused or forgetful when he spoke to the FBI has been central to Trump’s serial cover stories for why he fired Flynn.

So Republicans hoping to find the smoking gun have looked and looked and looked and looked and looked at the circumstances of Mike Flynn’s interview. Already by March of last year, they had resorted only to misstating Comey’s testimony about what happened in the HPSCI report.

Director Comey testified to the Committee that “the agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”

Nothing in the report — which now includes a section substantially declassified to reveal more purportedly incriminating details about Flynn — suggests real impropriety with his interview.

Even in that very same paragraph, they quote McCabe (the guy who wrote up a memo that same day, which is probably what Sally Yates relied on when she suggested to the White House they needed to fire Flynn) stating very clearly that the FBI agents recognized that Flynn had lied.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

The degree to which, after looking and looking and looking and looking for some smoking gun relating to the Flynn interview but finding very little is perhaps best indicated by where that search has gotten after looking and looking and looking and looking — as most recently exhibited in Jim Comey’s questioning from a week ago, by the Republicans’ best prosecutor, Trey Gowdy. After (apparently) hoping to catch Comey lying about what investigators thought when the lifetime intelligence officer managed to lie without any tells but instead leading him through a very cogent explanation of it, Gowdy then resorts to sophistry about what day of the week it is.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Then Gowdy tries a new tack: suggesting that Flynn should have gotten the agents’ finding that he lied without any physical tells provided as some kind of Brady evidence.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question.

I mean, maybe there are some irregularities explaining why it took seven months to write up Flynn’s 302 and how information about the interview was shared within DOJ in the interim; if there is I’d like to know what those are. But what everyone seems to agree is that there was no dispute, from the very beginning, that Flynn lied.

And Flynn’s statement actually makes things worse for himself (and, importantly, for one of the White House cover stories that his firing was immediately precipitated by Don McGahn confronting him with the transcript of his conversation with Kislyak). Flynn’s own sentencing memo makes it clear the FBI Agents were quoting directly from the transcript about what he said.

FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”

So Flynn would have known, way back when the White House was trying to find excuses to keep him on, precisely what he had been caught saying.

Finally, remember two more details. While we can’t read it, Sullivan (and Flynn’s team) know what’s behind this redaction:

That means Sullivan knows, even if we don’t, why Mueller thinks it so important that Flynn lied, and so may have a very different understanding about the import of those lies.

Finally, note that along with requiring the government to turn over all the filings relating to his interview (not just the two Flynn selectively quoted from), Sullivan also instructed the government to file their reply to Flynn’s sentencing memo by the same time.

DOJ has never had the opportunity to write its own explanation for what happened with Flynn’s interview. By inviting a reply specifically in the context of this Flynn claim, Sullivan has given DOJ the opportunity to do just that, finally.

DOJ may have a very interesting explanation for why they approached a counterintelligence interview with a guy they might have considered one of them with jocularity.

Sure, there may yet be damning details. As I’ve said, I really look forward to learning why it took seven months to formally memorialize this interview.

But the GOP has been looking for a smoking gun for a year and have not apparently found one. It’s quite possible we’ll learn something else tomorrow, that Mike Flynn actually got special treatment that none of us would get if we were suspected of being recruited by Russian intelligence.

At the very least, Sullivan’s order may result in documentation that reveals just how shoddy all the claims irregularity surrounding Flynn’s interview have been all this time.

Update: Elevating this from pinc’s comment. If DOJ chooses to tell a story that at all resembles Greg Miller’s account of the meeting (including that Flynn specifically said he didn’t want to have a lawyer of any type present), then this could spectacularly backfire.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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79 replies
  1. pseudonymous in nc says:

    King Idiot’s morning shitter-twitter suggests that he’s pretty desperate to lock in the “FBI didn’t think he lied / tiny misstatement” cover story.

    This was after Greg Miller shared an extract from his book, suggesting that Flynn knew his cover story on his contacts was under pressure. (The narrative gets into Flynn’s head in a way that is either very speculative or tacitly has his input.)

    Flynn knew this was about Kislyak and must have assumed that the bureau had a transcript, but the retired general also had a misplaced confidence in his ability — whether in combat zones or in Washington — to navigate perilous situations.

    It feels as though the satisfaction of Mueller’s team with Flynn echoes Cohen’s  cooperation over the circumstances surrounding his lies to Congress.

    • pseudonymous in nc says:

      Following up on that, Miller suggests that a “change in posture, in tone, in inflection, in eye contact” came at the end of his interview with Karen DeYoung, when she talked about recorded intercepts in circulation.

      • orionATL says:

        from the g. miller cite by pinc. this is VERY dramatic stuff – the moment lieutent general flynn was unhorsed in his hour of triumph. rayne may demand my head, but i’ll take the risk:

        “… A team of reporters had been working for weeks on an article that would say that Flynn had discussed sanctions with Kislyak. The paper was confident enough in its sourcing that a draft of the team’s story was already in the Post’s system when DeYoung entered the West Wing on February 8. Flynn’s spacious corner office had large windows on the north and west walls, with a large desk, a couch seating area on one side, and a conference table with chairs on the other. DeYoung and Flynn spoke for the better part of an hour on foreign policy issues until NSC spokesman Michael Anton interrupted to say the interview would need to wind down. DeYoung took that as a cue.

        “My colleagues at the Post are preparing to publish a story which says that you did in fact discuss sanctions with Ambassador Kislyak,” she said. “This is from current and former officials, people who have listened to the intercepts. . . .”

        Flynn’s eyes narrowed. “How can they listen to the intercepts? How can they do that? Imagine that you’re listening to . . .” He trailed off, shaking his head. A career intelligence officer, he seemed preoccupied by the idea that such a recording was in circulation. (In fact, the recording itself wasn’t shared as widely as a report summarizing the contents.) Flynn, who had been characteristically voluble to that point, suddenly became monosyllabic. “No.” “Never?” DeYoung asked. “No.” “Was there any signaling to the ambassador that if they would wait in terms of their response . . .”

        “No.”

        The next day The Post called Anton and informed him the paper was planning to publish an article on Flynn’s conversations with the ambassador, despite his denials. By that point, the ground had already shifted for Flynn inside the White House. After Flynn’s interview with DeYoung, word spread that a Post story was coming. Priebus, McGahn, and Eisenberg gathered with Flynn and pressed him on his conversations with Kislyak. They told him what DeYoung has also said — that there were transcripts. Flynn was cornered and his story crumbled. Now he “either was not sure whether he discussed sanctions or did not remember doing so,” according to a timeline that McGahn put together.

        Anton called the Post to say that Flynn now wanted to withdraw his denials to DeYoung and replace them with a statement saying that “while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

        and so ended general flynn’s dreams of power as he reached out to grasp them.

    • JKSF says:

      “must have assumed that the bureau had a transcript… misplaced confidence in his ability…”

      Isn’t Miller suggesting that Flynn had reason to believe the fix was in?

    • orionATL says:

      the miller except suggests to me that president trump’s focus on peter strozak was not motivated by what trump claimed (conversations between strozak and his inamorata referencing trump), but rather by the knowledge that strozak had been the agent who questioned flynn and brought about flynn’s necessary resignation from trump’s team. of the two agent’s interviewing flynn, strozok was at the top of the ladder of fbi counterintelligence agents and i’d guess had read the excerpts themselves.

      who in the nat sec world had talked to post reporters about those excepts? i haven’t a clue, but it could it have been mccabe or ohr, the other fbi personnnel trump singled out by trump for some of his twitter-clubbing.

      moral of this viewpoint – from nov. 7, 2016 forward, trump and co. learned a lot about what went was known about their own questionable behaviour due to their access at the top of the nation decurity (“natsec”) foodchain.

      under this scenario it is and will remain very difficult to impossible to acost and punish a president who shows dangerously bad judgment or breaks the law with respect to foreign affairs.

  2. Alan says:

    I don’t see the Stevens’ docket readily available online, but I believe he was found guilty by the jury and then moved to overturn the verdict or vacate his conviction?

    AFAIK, Flynn would have to move to withdraw his plea (Sullivan can’t do that on his behalf sua sponte).  If Flynn did move to withdraw his plea and was successful, he would still be subject to prosecution for both this crime and other uncharged crimes.  So while government or prosecutorial misconduct might give Flynn grounds to withdraw his plea, it’s hard for me to see Flynn actually doing that, given the deal he got.

    • Peterr says:

      I don’t see the Stevens’ docket readily available online, but I believe he was found guilty by the jury and then moved to overturn the verdict or vacate his conviction?

      Close, but not quite. From Stevens’ wiki . . .

      In his October 2008 trial, his lawyers alleged that prosecutors were improperly withholding evidence from them and asked for a mistrial. This was refused, but Sullivan admonished the DOJ and directed it to conduct an internal probe into potential misconduct. The trial went on, and Stevens was convicted.

      In Feb 2009, a DOJ whistleblower filed an affidavit alleging that prosecutors withheld exculpatory evidence from the defense. Sullivan then ordered a hearing on the matter and held the prosecutors in contempt, declaring that the prosecutors’ behavior was “outrageous.”

      In April 2009, the DOJ — not Stevens or his attorneys — filed a motion to set aside the verdict and dismiss the indictment with prejudice. In addition to what the whistleblower said, Holder & Co. found an undisclosed pretrial interview with the prosecution’s star witness that contradicted what the witness later said at the trial. A week later, Sullivan accepted this motion and threw everything out.

      • orionATL says:

        thanks for those details.

        from the time i first heard that some of mueller’s prosecutors were from the public corruption section of doj, i worried that the stevens case and one other notorious failure i can’t remember would become a fat target for a nunes-meadows- trump shell attack on the sco and the fbi (“shell” used here in the computer os sense). that did not happen. amazing oversight 😂.

        but mueller hand-picked his people, certainly. and the ones he picked were not about to do anything so got-to-win stupid.

        karma has now brought the osc face-to-face with the judge who was first very curious and then rightly incensed about the behavior of the public corruption prosecs at senator stephen’s trial. amazing things happen in life!

        perhaps with his lawyer’s encouragement, lt. general flynn has decided to wake the ghosts of stephens by claiming he was tricked into lying – a convenient change to his legal history that might make him more palatable on the corrupt dictator-corporate market he will likely aim his new business at.

        the sco prosecs have apoarently anticipated this and filed a rebuttal with judge sullivan which is said to demonstrate the opposite of his claim of having been tricked by the fbi into lying. i suspect general flynn and esqs are going to regret this little trick of theirs:

        https://www.nytimes.com/2018/12/14/us/politics/michael-flynn-fbi-donald-trump.html?

        will these guys never learn to quit dicking with mueller? or did they just decide it was worth the risk taking a spin of the wheel with a suspicious judge sullivan? stay tuned to emptywwheel.

  3. Semanticleo says:

    Sorta OT heres is the real Tom Maguire ..

    “Yeah, yeah, and Al Capone was busted for tax evasion. More to the point, Richard Nixon was busted for (among other things) campaign finance irregularities. But for heaven’s sake – the Watergate investigation started with irrefutable evidence of a break-in at DNC headquarters, which we all understand to be a crime. Not to mention that Nixon wondering whether the CIA could head off the FBI investigation looked a lot like obstruction and an abuse of Presidential power.”

    He is so much less egregious than his charges.

    • emptywheel says:

      She corrected her testimony in the wake of his plea.

      I suspect the people who cooperated downstream from Flynn, in addition to Nader, will be more interesting than McFarland.

  4. BobCon says:

    Something I would like to see come out of this — one more piece of evidence debunking the idea that the FBI (or anyone else) can know if you are lying by talking to you.

    The analysis is as bogus as the body language “experts” who get trotted out on bad TV shows. At best there might be marginal value to expert training, but even then the false positives and negatives are too frequent to make any judgements count as anything more than hunches. However, putting substantial value on truth telling judgements has very grave civil rights implications.

    The main purpose of interviewing subjects is to get them on the record and supplying as much information that can be checked as possible. If the FBI actually approached the Flynn interview as some kind of truth-evaluating tool all by itself, then they deserve to be dinged. But if we eventually find out they had no substantial faith in the initial judgement and were looking instead to pin down where Flynn stood, I will be a bit more satisified.

    • greengiant says:

      Criminal justice 101. Other techniques are in play.
      a. Determine if a suspect is lying to you. Suggest a falsehood, if the suspect agrees with you, they are lying. Expect the suspect to have an emotional reaction when they disagree with you.
      b. When interviewing suspect A, tell them you are investigating suspect Z.

    • pseudonymous in nc says:

      It sounds as if the FBI approach was to gauge his response to verbatim stuff from the intercepts without saying “we have intercepts.” That’s a grey area in the terms you define, but it wasn’t simply lie-detection from tone and tenor.

      • BobCon says:

        I agree it wasn’t just a tone and tenor thing, and my hope is that a clearer picture of what the FBI was doing comes out of all this. Flynn’s defenders and the right wing press are trying to claim the agents were some kind of human polygraphs, and I’ve seen signs of this migrating to the non-loon community. Any unsophisticated view like this should be replaced with a better view of how they work.

    • Charles says:

      Something I would like to see come out of this — one more piece of evidence debunking the idea that the FBI (or anyone else) can know if you are lying by talking to you.

      I don’t think this is really correct. Most people do show indicia of stress, one source of which could be trying to say one thing while the brain knows that’s false. This article from the APA explains:

      Aldert Vrij, PhD, a professor of applied social psychology at the University of Portsmouth in the United Kingdom, also focuses his research on using strategies to outsmart liars. “Liars are doing more than telling their stories — they need to make a convincing impression,” he says. “If the interviewer makes the interview more difficult, it makes the already difficult task of lying even harder.”

      Another way to make lying more difficult is to increase interviewees’ cognitive load by, for example, asking them to tell their stories in reverse order. Truth tellers can rely on their memories to tell their story backwards, often adding more details, but liars tend to struggle. Research shows that liars also often provide fewer details about time, location and things they heard. They also speak more slowly, with more hesitations and grammatical errors (Law and Human Behavior, 2008).

      But there are people who are able to lie seamlessly. In my (lay) experience, they tend to be sociopaths or professionals who plan to lie and rehearse the lie to the point they don’t suffer stress. And to riff off of what Comey said, the absence of indicia of lying is evidence of intentionality in lying.

      • BobCon says:

        In brief, the way to think of it is that human interviewers are much less reliable than polygraphs, and polygraphs aren’t close to reliable.

        When you start digging into the issues, even setting aside issues such as subjects being practiced in deception and interpreter error, the statistical problems with false negatives and positives and trying to evaluate answers to particular questions start getting really hairy. Studies arguing for certain factors as indicators of lying tend to be very weak on controlling variables, measuring the effects of questioner identity and circumstances of the questioning, and then factoring in issues such as the culture, age and status of the person being questioned.

        What you end up with is the potential for a wildly misleading results. Hopefully the FBI uses interviews with only a finger in the wind attitude toward asessing truthfulness based on reactions, and focus on researching the truthfulness of the answers by more rigorous factchecking methods.

        • Hika says:

          Body language is very much a cultural thing, meaning interpreting a person’s body language without understanding the culture they are from is doomed to failure. (You may fail regardless, of course, depending upon the person’s deliberate manipulation of their body language or other factors affecting the person’s physical or mental state at the time you are talking to them.)

          A good example that I am aware of is the widespread avoidance of eye contact in Australia’s Aboriginal cultures. Westerners routinely get a feeling that Aboriginal people are giving them a shifty story when in fact they are being accorded (perhaps undue) respect.

          From cultura.org.au :

          “In western cultures if we fail to maintain appropriate eye contact we can be perceived as ‘hiding something’ or that the person is not to be trusted. However, generally speaking, use of indirect eye contact in Aboriginal culture implies respect. interpreted as displaying interest and providing honest information.

          Direct eye contact with anyone other than one’s most intimate peers or relations is seen as a sign of rudeness, disrespect, or even aggression, and the appropriate strategy to convey polite respect is to avert or lower one’s eyes in conversation.”

      • orionATL says:

        i once worked with a town councilman who was also dean of a school at the university. i came to consider him a persistent and superb liar. i didn’t consider him a sociopath, etc., though. i was confident that that special talent was necessary to be a dean, and mildly useful in a politician.

    • AnotherKevin says:

      This is a good point. I’ve spent a lot of time studying body language (both in real life, and also books and studies on body language), and know that most people are terrible at spotting liars, and might as well flip a coin to determine if someone is telling the truth. Trained FBI agents are indeed much better than the average person, but even there they’re only correct in controlled situations about 60-65% of the time (numbers from memory, but I doubt I’m far off). You’d win a lot of money at Vegas with those odds, but in law enforcement you’d obviously lock up a lot of innocent people, and release a fair number of guilty ones, if all you had is the agent’s personal judgment. And by the way, outside of trained FBI agents, the average law enforcement professional is no better than the average person on the street.

      The biggest problem that I’ve seen is that LE professionals vastly overrate their abilities. I suspect the average FBI agent thinks their lie-detector skills are more like 90% accurate, and doubt the average cop is far behind that.

      • BobCon says:

        I think you make good points. It would be grossly negligent for an agent not to keep a record on the way people respond to questions in addition to the substance of the response. It is just essential to be aware of the waysyou can be led astray.

        An imperfect comparison is to a GPS unit that is 75% accurate at any intersection. In limited usage it is unquestionably better than flipping a coin, but in constant usage it will still probably get you very far off track.

    • Peterr says:

      If the FBI actually approached the Flynn interview as some kind of truth-evaluating tool all by itself, then they deserve to be dinged.

      Your “all by itself” is the key phrase here.

      When the FBI (or your HS math teacher, or your parents) conducts an interview, if they get a whiff of something funny, it doesn’t mean you are absolutely guilty. It does, however, mean that they would likely dig a little deeper into what you said — either with you or someone who can verify or contradict your story — to see what comes up.

      There’s no way in hell that the simple “he looked like he was lying” would be taken at face value by the prosecution and used against someone (especially a three star general!) like that, instead of being checked out further before using their words against them.

    • Eureka says:

      I have a couple of comments, generally addressing this whole convo stream.  Note they may sound contradictory, but I am distinguishing different scales.

       

      First, we can Thank Science & Law that (so-called investigative tools like) “Statement Analysis” and “Body Language Experts” aren’t admissible in courts- at least last I knew.  I haven’t seen the body language experts on the teevee lately, but boy they had a long run some years back.  These traits just don’t tend to translate to consistent group-level effects, or suites of same traits, and their accurate usefulness (therefore) declines even further when combined.  And of course there are the biases of the cocksure and so forth as many have addressed.

       

      But/and/stop the presses:  so as not to devolve into Cartesian falsehoods about communication- including via the vaulted spoken and written word- so-called ‘body language’ is indivisible from and foundational to the understanding of same.  We are all experts at reading body language in daily use.  It’s how we get by, flourish, (fail to) avoid bad situations, etc.  (From an evolutionary perspective, it feels silly to type the separate phrase ‘body’ language like I am writing decades ago about a ‘male nurse’ or ‘woman cop.’)  I can simply offer as proof the fact that we are here.  And other issues of pragmatics – often covered in these here comments- about how hard it is to know what some typist is ‘saying.’  (Aside from orion recently making some longer remarks on this topic, recall e.g. Rayne and bmaz often requesting posters stick to a single name so others can get to know them and their voice(s).)

       

      All manner of anatomical science can be deployed for proofs as well, but in the interest of brevity I’ll leave it here by also noting that there is variability in individuals’ abilities to ‘read’ e.g. facial microexpressions, and that last I knew the FBI was trying to ID and recruit them into some ‘program.’

    • orionATL says:

      as i understand the flynn guilty plea (aka whether flynn lied willingly or was “tricked”), it was not at all dependent on fbi interpretation of his bodily reactions. it was dependent on discrepancy between what gen. flynn said later in an fbi interview that he had
      or had not done, and what nsa-fiveeyes-european spy network intercepts overheard him saying earlier in conversations with russian ambassador kisylak – conversations about sanctions relief which president-elect trump assigned general flynn to undertake.

  5. Jenny says:

    Thanks Marcy for the in-depth update.  It’s the unearthing of “special treatment” that will be interesting if obtained for Flynn.  Double standards are infuriating.

     

  6. punaise says:

    Because, why not. To the tune of the Sound of Music:

    How do you solve a presnit like Pariah?

    How do you catch a clod and pin him down?

    How do you call this turd, that mean Pariah?

    A flibbertijibbet! A will-o’-the wisp! A clown!

    • Diviz says:

      That was inspired, punaise.

      OT but, until I was around 27 I thought that the song “How Do You Solve a Problem Like Maria?” was about how creatively and imaginatively Maria solves intractable problems that would stump anyone who only thinks inside the box. Problems like holding a moonbeam in your hand, keeping a wave upon the sand, or establishing an unofficial backchannel to the Russian government.

      • Eureka says:

        I love this story- I can’t recall a specific autobio example right now, but I have walked this path… a whole new tiny world opens, lol

    • Peterr says:

      Sound of Music, you say?

      Fresh hot subpoenas and grand jury summons,
      Russians indicted and wingnuts all runnin’,
      proffers and plea deals, tied up with string,
      These are a few of my favorite things.

      When the Trump tweets,
      when Fox News bleats,
      when I’m feeling sad,
      I simply remember my favorite things,
      and then I don’t feel so bad.

        • punaise says:

          OK, grasping a bit here, to continue with the Sound of Music:

          Wieselman,  Wieselman:
          “Every morning you tweet me
          Small hands (tight), not so bright,
          You look guilty to meet me.
          Blossom of snot, you are doomed to rot
          Doomed to rot forever”
          Wieselman,  Wieselman:
          “Jail my homey forever”

  7. Trip says:

    DOJ has never had the opportunity to write its own explanation for what happened with Flynn’s interview. By inviting a reply specifically in the context of this Flynn claim, Sullivan has given DOJ the opportunity to do just that, finally.

    Who is put to this task at the DOJ? Since the agents are gone, Comey is gone, Whitaker should be recused, who does it fall to, Rosenstein or simply Mueller’s team?

    • SteveB says:

      I imagine that there is no reason why the member of the SC team who drafted the other submissions in the case, shouldn’t deal with it, given that it is the govts reply to the defendant’s lawyer’s attempt to gloss a matter in his argument on behalf of his client.

       

       

  8. JKSF says:

    How about this? I’ve never believed that Pence did not know. Let’s imagine, Trump and Pence know all about the Flynn/Kislyak conversations, and in fact, directed them. Somehow they discover the FBI is onto it. Flynn talks to Trump and Pence to coordinate their cover story. Trump, having met with Comey, assumes he has him in his pocket, and tells them to deny, deny, deny. It’s all under control. So Pence goes on TV and denies it, and Flynn steps in it big time with the FBI. Then they find out Comey is not the team player Trump imagined him to be and is not burying it. Damage control is the story that Flynn lied to Pence and Flynn falls on his sword. It all comes down Trump mistakenly thinking of Comey as his fixer.

    If true, the question would be how much has Flynn now revealed to Mueller?

    Any takers, or am I entirely off base?

    • Barry says:

      Your hypothesis seems plausible, but I have yet to hear a peep anywhere regarding any Pence involvement in things Russian. If such information were to exist and to become public, the ramifications would be absolutely explosive. It would send the the Presidential Succession Act of 1947 zooming to the top of Google searches and introduce a new mind-bending concept into our public lexicon – President Pelosi!

    • Jenny says:

      JKSF I agree with you, Pence did indeed know.  How could Pence not know?

      He headed the transition team.   Plus the team knew Flynn was under federal investigation before he got to the WH, he told them. The maniacal administration was warned about Flynn.

      Flynn walked in with lots of baggage, about 5 steamer trunks.  Very visible.

      • P J Evans says:

        I agree – Pence had to know. Or else he’s dimmer than my potted plants, put together, and certainly less sharp than the three pointy cactus plants..

  9. Rapier says:

    Lying by ‘conservatives’, to congress, courts or law enforcement in support of ‘conservative’ causes is applauded by ‘conservatives’ and often worn as a badge of honor. If the lies are a crime at all then a crime so tiny as to be akin to jaywalking, for a damn good reason. Herein lies the inherent weakness of the, ‘it isn’t the crime but the cover up’ method of prosecution that seems to prevail in Special Counsel investigations.

    On another level liberalism assumes honesty as part of the process by which decisions are arbitrated. To which conservatives say, sucker. A phenomena now writ large. Large? Hell gigantic. Something that seems important to simple minds like mine.

    Are there good reasons why Muller didn’t go the Logan Act route with Flynn that anyone can think of. (Of course ‘conservatives’ have already said, ‘what’s a couple of weeks among friends’.)

    addendum: https://alphahistory.com/nazigermany/goebbels-on-the-reichstag/

    • Rugger9 says:

      It’s also why Nadler will know his potential impeachment will fail to convict Kaiser Quisling in the Senate because he needs 20 GOP Senators (assuming no defections) to commit political suicide.  KQ is still immensely popular with the MAGATrumpie base that provides an oversize part of the GOP primary electorate.  It’s to the level where Pence’s defenestration is possible because the fundies don’t care that KQ wouldn’t say the Creed at 41’s funeral in addition to being a womanizer.  They see him appointing more Federalist Society anti-Roe judges and for them the ends justify the means.  WWJD?  If He came back today the smug fundies would be in for a huge shock because hypocrisy especially combined with Pharisaic prosperity gospel values was something all of Gospels agreed that Jesus hated.

      Nonetheless, Nadler should put the marker out there.

    • Vern says:

      I love history and you’re entirely correct.  Goebbels had principles and ideology. He and his ilk wanted to “govern“.

      But, we are dealing with out and out international organized crime here.  The Trump Crime Family.  The Russian Federation is just a fig leaf for the Russian mob, etc. etc.

      “Government” as cover for overt looting and transactional foreign policy.  Lots of things fall into place when you realize this.

      The Trumps (and their party) must be utterly destroyed to begin to fix this.  Logan Act ain’t it.  Besides you could argue that the Russian (and other foreign) contacts (Flynn et al) were doing were perfectly legal and appropriate as government-in-waiting.  Instead they chose to lie about them and coordinate their lying.  That much is already on the record.

      The question is why?

      I’m hoping a lot of that redacted stuff has the goods to put away the family for life and strip them of their assets (if any).  Then there may be a path to go after all the other “Trumps” in this country (and maybe the world).

  10. earlofhuntingdon says:

    Absent dementia, deeply experienced general staff officers still on active duty or its functional equivalent, do not get dazed, confused, or forgetful about important aspects of their job – or much else.  Nor do senior officers with decades of intelligence, special forces and anti-terrorist training. Their memories, in fact, are often exceptional. So, too, is their ability to operate effectively under extreme stress and credibly to sustain a lie.

    • Peterr says:

      Agreed . . . but by the end of his career, Flynn was not your typical general staff officer.

      Per wiki, he was forced out of his position atop the DIA for (says the WaP) a chaotic management style which a leaked email described as “abusive with staff, doesn’t listen, worked against policy, bad management, etc.” An NYT story two days later said that Flynn exhibited a loose relationship with the truth, leading his subordinates to refer to Flynn’s repeated dubious assertions as “Flynn facts”.

      Flynn seems to have been a habitual liar (habitual enough that his staff gave it a nickname), as well as someone who — until he got canned — got away with it over and over again. With his resurrection under Trump, though, I would bet that any lessons he might have learned from getting put out to pasture at the DIA got thrown in the trash, and Flynn went back to thinking he could say or do whatever he wanted without accountability.

      Kind of like his boss.

  11. Tom says:

    I’m struck by the fact that Peter Strzok and his FBI colleague (Greg Miller’s book says it was a Joe Pientka) interviewed General Flynn in January 2017 but Strzok didn’t get around to putting his interview with Flynn on the record (I assume that’s what the Form 302 refers to) until seven months later.   Is that par for the course at the FBI, even when interviewing a high government official of whom you have evidence is guilty of wrongdoing?   At the Children’s Aid Society I used to work for, any contact with a client had to be entered into our database within 24 hours and was computer date-stamped.   It wasn’t always possible to reach that goal but that was our policy.   I’m assuming Strzok made some rough written notes of the questions he asked Flynn and the answers the general gave, or had some other contemporaneous record of the interview.    I’d hate to think of him sitting down in August to make a formal record of a meeting he had in January with only his memory to rely on.

    • cat herder says:

      Record-keeping procedures at the Children’s Aid Society were probably not designed to deal with things like someone leaking the juicy bits of your reports to Rudy Giuliani.

      • Tom says:

        But Comey at least knew the importance of making a record of his conversations with Trump ASAP and sharing the info with others at the time.   It’s simply a matter of documenting information contemporaneously and preserving the best evidence of your case whether it’s the CAS or the FBI.

        • cat herder says:

          Were Comey’s notes entered into the official record or a case file? I had the impression Comey kept personal notes on just about anything and everything no matter how ordinary and mundane, but the interactions with the orange rodeo clown with the gold-plated toilet were so bizarre he thought it wise to brief specific strategically-chosen officials face to face.

    • chicago_bunny says:

      And now that the filing has been made, we see that the August 2017 Form 302 memorializes an interview of Strzok by an unnamed Senior Assistant Special Counsel and FBI Supervisory Special Agent.  https://assets.documentcloud.org/documents/5628473/12-14-17-Mueller-Reply-Flynn-Sentencing.pdf

  12. Trip says:

    Not only was the Trump (and Clinton) campaign briefed on infiltration from foreign governments, they were told to report these efforts in July 2016. The article about this briefing came out in December of 2017. So when the FBI started asking questions about the Russians, Flynn was relaxed, so it was okay to lie? Even though this type of reporting was in the forefront, contemporaneously, that the FBI was interested in this type of activity? Come on.

    FBI warned Trump in 2016 Russians would try to infiltrate his campaign

    “The warning came in the form of a high-level counterintelligence briefing by senior FBI officials”
    DEC 2017

    In the weeks after he became the Republican nominee on July 19, 2016, Donald Trump was warned that foreign adversaries, including Russia, would probably try to spy on and infiltrate his campaign, according to multiple government officials familiar with the matter….The candidates were urged to alert the FBI about any suspicious overtures to their campaigns, the officials said.

    https://www.nbcnews.com/news/us-news/fbi-warned-trump-2016-russians-would-try-infiltrate-his-campaign-n830596

  13. Frank Probst says:

    What do the lawyers think about all of this?  It looks like he got a very sweet deal.  Something like this won’t directly impact his cooperation agreement, but it’s definitely going to irritate the people he’s supposedly cooperating with.  I don’t really see how this can benefit him.  It seems like the equivalent of asking a question that you don’t already know the answer to.  Even if Mueller’s team totally bluffed him, he still admitted to lying to the feds.  If they produce a transcript of Flynn playing footsie with the Russians, can’t the judge decide to disregard everything he’s been told by both sides, and decide that Flynn needs to spend some time in prison for his actions?  What’s the upside for Flynn here?

  14. Rusharuse says:

    I head it through the grapevine –
    Chachi for COS!
    an I think I’m gonna lose my mind – honey honey yeah

    • Eureka says:

      Not great news, but at least you temporarily displaced the running loop of Copacabana I got going from all the RICO-talkers.

  15. punaise says:

    @ Rusharuse says:
    December 13, 2018 at 2:14 pm

    Full credit to lyricist Oscar Hammerstein II for mining the Middle English (per Wikipedia) for that word…

    May I submit a revision:

    A flipper: “he did it’! A wallow, the wasp! A clown!

  16. Eureka says:

    OT re inauguration-related investigations:

    Kim Masters did a piece in October for THR’s Money and Politics 2018 feature that approaches some of these players from the Hollywood/business relationships angles, and talks some of the inauguration monies.  I meant to post it then in case any new details/insights could be gleaned.  Also, Mnuchin is just everywhere, including this mix:

     
    Music’s Mystery Mogul: Len Blavatnik, Trump and Their Russian Friends/ Why Is Warner Music Group Owner Len Blavatnik In the Russia Probe?

  17. Yette says:

    It makes me sick to my stomach that Mike Flynn is getting off with no jail time.  What is with our justice system when people that knowingly commit treason are given leniency while others that simply smoke weed are harshly imprisoned.  I can picture Flynn, like Petraeus before him, actually benefiting from his criminal activities.  There is indeed no shame amongst thieves. Corporations can’t wait to embrace these criminals.

  18. bmaz says:

    I join Marcy in saying it is good that Sullivan is doing this, and that more judges should be circumspect about what law enforcement is saying in their courts. But Trump and and the Flynniacs are bonkers if they think it is going to exonerate Flynn. For starters, if it did, then Flynn was patently dishonest in his plea allocution, which would be a whole new problem for him. The people latching on to the idiocy that the FBI took advantage of poor little general Mike Flynn are simply nuts.

  19. oldoilfieldhand says:

    This comment from Marcy,
    “as most recently exhibited in Jim Comey’s questioning from a week ago, by the Republicans’ best prosecutor, Trey Gowdy. ”
    should be enough to tell sentient beings that the Republicans are grasping at straws in a desperate effort to shift the blame from Flynn. Mike was caught red-handed attempting to subvert the Obama Administration’s efforts to ensure just punishment was meted for their efforts because. “Russia has just thrown the U.S.A. election to [Trump].” This effort to salvage the reputation of one of their own is a Republican tactic. Pay no attention to the crime, instead focus on one thousand messages between paramours to find a smoking gun phrase that will in effect prove to the lizard brain that the people investigating treasonous criminal behavior are part of the “deep state” efforts to besmirch the blue collar MAGA billionaire savior of rural White America.
    All of America was afforded the opportunity to watch the brilliant Trey Gowdy question every action crooked Hillary Clinton took in the Benghazi tragedy, solely in an effort to damage a known Democratic Presidential contender (thank you Kevin McCarthy); instead of addressing the real cause, the Republican Congress induced State Department security shortfalls, part of a plan to create a pool of money that would justify tax cuts for the rich. His clown show hysterics in the defense of the indefensible was enough to show America Gowdy’s true talents, obfuscation, denial, and confusion. Trey “Howdy Doody” Gowdy is truly one of the Republican’s best. Too bad he didn’t fit the Central Casing image required, he would likely have been chosen to fill the vacated Reality TV Attorney General position.

  20. Doctor My Eyes says:

    Re persistent speculation that Pence knowingly lied about Flynn’s discussion of sanctions, it may be useful to review EW’s take:

    “So the sentencing memo tells us that the progression from Ignatius to Pence was important, and one of the unredacted bits describing Flynn’s cooperation states that Flynn conveyed false information to several senior members of the transition team, which they publicly repeated.”

    https://www.emptywheel.net/2018/12/05/no-mike-pence-is-not-going-to-be-indicted/

  21. uppercut says:

    Thank you Marcy, bmaz for such incredible work and commentary.

    Am still worried…the Flynn FBI 302’s were referenced approved by McCabe in texts between Strzok and Page on Feb 14th 2017, and Comey in testimony thought he had read it before his ouster in May. Current per Marcy is Aug 22nd.

    Do they have a valid chain of information that a skeptical Judge Sullivan will be satisfied with? Pivot point.  Comey’s “by the book” is gonna get massively spellchecked. geez, hope the “frothy right” is [email protected]$g wrong.

      • Alan says:

        The included 302 documents an intereview with Strzok on 7/19/2017. It includes the sentence: “He [Flynn] only hedged once, which they [the FBI agents] documented in the 302.”  I don’t see that 302 included (apparently the original 302 prepared by Strzok)

        • Tom says:

          The SC Reply Memo blacks out the name of Strzok’s interview partner, which seems hard to understand given that Greg Miller identifies him as Joe Pientka on p. 241 of The Apprentice.    Looks like Strzok asked Flynn the questions and Pientka took notes, from which Strzok presumably wrote up the Form 302 months later.

  22. Jenny says:

    Flynn is not a victim, he is a volunteer.  He chose to lie to the FBI and got caught.  This from a retired Lt. General.

    “What I believe in is I believe in law.”  Michael Flynn

    • Tom says:

      Any jocularity aside, as soon as Strzok started asking questions and Pientka began taking notes, that should have been Flynn’s cue that now it was time to tell the truth.

  23. Thomas says:

    I am grateful to have access to Marcy Wheeler’s awesome encyclopedic curator journalism.

    In addition, the commentators on this site are just off the charts in terms of expert opinion in law, law enforcement, IT, psychology, journalism and politics. It’s a privilege to be able to read the informed opinions of so many well educated and experienced people.

  24. Thomas says:

    In other comments on other threads, I voiced my opinion about the role of Pence in the Russian conspiracy.
    I see that several people upthread have expressed similar opinions. I would like to note that Rachel Maddow, some time ago, put forward a theory that, at the very least, Pence’s story about the whole Flynn debacle does not make sense and would not stand up to closer scrutiny when compared with known facts.
    My opinion is that Pence is and was directly involved in the quid pro quo: Sanctions relief in exchange for Russian election help.
    If I am correct and if this investigation is proceeding like an organized crime case (as many experts here and elsewhere have opined) and since there is no bar on indicting the vice president, then Pence will be indicted before going after Trump himself.
    As a political science major, I would point out again, as I have before, “President Pelosi” is highly unlikely, unless Pence resigns and then Trump dies before a new VP is confirmed by both houses.
    IMHO, in 2019, Pence will be indicted after months of oversight and impeachment hearings and other indictments of other conspirators.
    Quite simply, Pence violated his oath of office by standing by and allowing Trump to contemptuously defy the sanctions laws. Pence participated in a conspiracy to shield a foreign hostile adversary that attacked us, and to reward that adversary, and to lie to and deceive the people and the government about those crimes.
    If I am correct, then a damning indictment of Pence would be seized upon by Trump and his base to exonerate Trump (as delusional as that is!). Pence would be forced to resign under threat of certain removal from office.
    That sets the stage for the nomination of a vp who :
    1) Is a Republican 2) Has the stature for confirmation by both the Republican Senate and the Democratic House 3) Has undeniable conservative credentials 4) Is not tainted in any way by Trump’s crimes 5) enjoys the judgement by the media (left and right) of being competent to assume the presidency.
    For each of these criteria, I could cite reasons why that could only be one person. Senator Mitt Romney.

    With Romney in place to assume the presidency, that is when Trump will be impeached and will be removed from office and will be indicted and prosecuted.

    Some foolish people have opined that Trump will pardon himself. That cannot happen. In order to receive a pardon, Trump would have to admit the crimes that he is pardoning, and by definition such crimes are impeachable offenses, and this not in the power of the president to pardon, so says the constitution.

    Romney would not pardon Trump. Romney will run for election in 2020 and he is old enough to know what happened to Ford.
    The conventional wisdom that Trump will beat conviction in the Senate would be true today if he were tried today without any evidence of the conspiracy revealed by Congress or the SCO, but it will NOT be true after months of revelations of evidence and indictments.
    The Republican Senators up for re-election will either retire or vote to convict in those circumstances, and many may do both.

    Why will Trump nominate Romney? Because the Republican and Democratic leadership will tell him to do it, and it will be in an atmosphere in which Trump believes that the whole Russia conspiracy has been pinned on Pence.

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