On the Fizzle and Boom in Friday’s Mike Flynn Friday Night News Dump

Some events set in motion by a request WaPo made in April to unseal the sentencing files of Mike Flynn that have resulted in some fizzle, some pop, and a lot of premature speculation.

In their response to the request, the government said that the release of the Mueller Report meant they could release three of the four documents WaPo initially asked for in less redacted form: Flynn’s cooperation addendum (parts of which were and are still sealed to protect ongoing investigations), an Andrew McCabe memo on his interview, and a Peter Strzok 302 (both of which had personal privacy and deliberative privilege redactions). The government moved to unseal them. In approving that unsealing, Judge Emmet Sullivan picked up on the reference to the Flynn transcript and issued an order to the government to unseal both that transcript, any sealed parts of the Mueller Report that “relate to Flynn,” and transcripts of all recordings involving Flynn, “including, but not limited to, audio recordings of Mr. Flynn’s conversations with Russian officials.”

Meanwhile, WaPo expanded their request to include Flynn’s original 302. Unlike the other documents they had earlier requested, his 302 quoted from the transcripts of his conversations with Kislyak. Surprisingly, Sullivan did not respond (I had wondered whether he might order the government to release it along with the other items). The government said it will review what can be released in that, as they had with other filings, though Flynn objects to this release. And WaPo responded in their original request, reaffirming their interest in Sullivan being involved.

Last night, the government filed the transcript of the call from John Dowd to Flynn’s lawyer Rob Kelner, as well as a filing blowing off at least one, and probably two, of Sullivan’s requests. The one that has gotten all the attention is that the government blew off Sullivan’s order to include all transcripts of audio recordings of Flynn’s conversations with Russian officials by claiming no other records are part of the guilt and sentencing record.

The government further represents that it is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record.

I also believe the government is being rather cute with this explanation about the Mueller Report.

With respect to the Report, the government represents that all of the information in the Report that the defendant provided to the Special Counsel’s Office has been unredacted, as has all of the information in the Report that others provided about the defendant. In those sections where the defendant’s conduct is discussed, limited remaining redactions pertain to the sourcing of information, such as references to grand jury subpoenas. See, e.g., Report, Volume I, pp. 169- 72.

Sullivan ordered the government to turn over all portions of the Report that relate to Flynn, not just those that describe information he provided to Special Counsel or that others provided about him. Plus, the government should have warned Sullivan they were going to withhold references to grand jury materials (their representation that these were just references stating that the call records the government used to clarify whom Flynn spoke to before and after his calls to Kislyak is pretty clearly correct), rather than just informing him of that in this filing.

But I also don’t understand how it is possible that this footnote does not relate to Flynn.

The Mueller Report admits elsewhere that Flynn was under counterintelligence investigation for his ties to Russia, on top of the investigation into his sleazy influence peddling for Turkey. It should be explained in this section, but is not — unless it is in this redacted footnote.

Of course, that’s precisely the kind of thing Sullivan would probably like to have made public, given his opinion that Flynn “arguably … sold [his] country out.” Which may be why the government excused not turning it over with the same indirect explanation — that even if this footnote “relates” to Flynn (and so would fall into his order) it isn’t pertinent for sentencing. The same indirect excuse they offered for withholding what are surely FISA transcripts.

All that said, I’m not sure the government’s intransigence is as big a deal as people are making out, nor am I convinced this is Bill Barr’s doing, to protect Trump.

To be sure, I think if the government were forced to turn over all transcripts where Flynn got recorded — even if it were just with Russian officials, and not anyone else a National Security Advisor designee would speak to — it would be fairly damning, and not just because the three Kislyak calls are really damning. There are more Kislyak-Flynn calls than the government wants to talk about right now: at a minimum, the calls surrounding a meeting Flynn and his spawn had in advance his RT-paid trip to Moscow in December 2015, as well as a call in early 2016. But there are likely even more from during the campaign period, calls that discuss policy issues that would be unseemly for a candidate to be discussing with the adversary who also happens to be trying to help Flynn’s boss get elected.

But even given Sullivan’s tendency to respond especially poorly to government defiance, I’m not sure this is going to escalate (in part, because it hasn’t yet). Had Sullivan really wanted to push this issue, he would have already ordered Flynn’s 302 be released, and he hasn’t. Plus, I think WaPo’s supplemental request for Flynn’s 302 will shift this debate to a more appropriate area of discussion.

Having been told by the government they would discretionarily release these files, the WaPo reply reiterated their original argument about First Amendment right of access to court filings. And Flynn’s original 302 is — because Sullivan ordered it to be, in response to a cute ploy by Flynn — a document already posted to the docket. So the WaPo’s argument that the full 302 should be disclosed should be fairly persuasive for Sullivan.

But the 302 also quotes directly from at least Flynn’s December 29, 2016 call with Kislyak,  because the FBI Agents decided (as recorded in the McCabe memo) that they would quote directly from the transcript if Flynn pretended not to remember this. For example, the FBI Agents tried to remind Flynn he had used the term “tit-for-tat” that he also used with KT McFarland’s assistant earlier in the day; they appear to quote the phrase, “don’t do something” to him twice.

Sullivan already has scheduled a hearing to discuss all this, on June 24. So between the supplemental WaPo request and that hearing, there’s plenty of opportunity to litigate all this without Sullivan blowing up.

In spite of a lot of suspicions, I suspect the non-responsive response came from DOJ’s National Security Division, not from Bill Barr. That’s true, in part, because DOJ as an institution is less patient with Sullivan’s quirky demands than they should be. That’s also true because there are almost certainly three levels of intercepts that might be responsive to Sullivan’s request that, at each level, would raise more and more heartburn for NSD, first for things they’d disclose about Flynn (and Trump), and then generally for the precedent it would set generally.

As I disclosed last 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. 

39 replies
  1. horses says:

    “Never write if you can speak, never speak if you can nod, and never nod if you can wink. And never send an email.” — anon

    O Irony.

  2. Eureka says:

    Well a transcript of at least one call is better than nothing, if not as ‘exciting’ as would be recordings of multiples (and I saw you had tweeted for WaPo to get that 302, omitted from their first request).

    It’s frustrating because as it stands in general with the MR/investigation/geopolitics, Russia is incentivized to never stop ‘interfering’ and specifically on behalf of the GOP in some ever-cycling quid-pro-quo.

    And Flynn alone was involved with multi-national qpqs.

  3. Frank Probst says:

    It seems like everything the government withheld relates to Flynn’s conversations with Kislyak, and Flynn’s being sentenced for lying to the FBI about his conversations with Kislyak, so it’s all relevant material. It would have made sense for the government to ask for this information to be withheld from the public, but I don’t see how they can justify withholding it from Sullivan. Considering how appalled he was about what he HAS seen, it’s hard for me to see him letting the government off the hook here. He may not blow up, but if I were him, I’d REALLY want to see that material now.

  4. Americana says:

    This is a race against time considering what Attorney General Barr is attempting to do to defang the Mueller investigation by means of delegitimizing the overall grounds for the investigation and specifically the FISA warrants. (What happens if Barr succeeds in delegitimizing the Mueller investigation? Does Barr honestly think Trump can pretend the genies were all shoved back in their bottles given what we know?) I’m curious if Attorney General Barr sees the dangers in releasing all this material that so clearly indicates Trump sent his campaign staff and his White House staff in pursuit of Russians for clearly nefarious, self-aggrandizing reasons. Of course, this material would likely reveal only Russian expectations about the Trump White House lifting sanctions but, obviously, there had to be quid pro quo.

    I’m not clear on what Barr can control at this point and if what Barr cannot control is why Barr is pursuing the investigators as expeditiously as he can. Perhaps it’s that Barr believes the expectation of impeachment will be lessened or removed if he plants seeds of illegitimacy about the grounds for the investigation. However, given the nature of the presidency, this would NOT be so readily dismissed for such cause as would a case against a private individual. However, it’s interesting to listen to the latest spews about the legal picture from Prof. Alan Dershowitz who seems to be acting as if he’s totally unaware of the nature of the presidency and what it means for an American POTUS to be tinkering around w/Russia for his own self-aggrandizement. I frankly can’t believe HOW IGNORANT Dershowitz appears in his public appearances. Dershowitz seems to be missing 1/2 if not 3/4 or 7/8 of the legal equation over Trump’s seeking that kind of commercial relationship w/Putin.

    • MattyG says:

      Or, Barr is mainly concerned at covering RNC/GOP tracks in this mess. Helping DT serves a useful service for now even if it means losing DT in the end. He was eager and gunning for the job if his unsolicited white paper was any indication. The unitary executive cabal may simply want to game the situation for a long as possible to push agenda, and wipe off RNC fingerprints – to ensure the party is not too badly hurt ging forward. I sense a desperate yet flexible defense that would pull the plug on DT in a heartbeat if by doing so the party escaped unscathed. But the mire is deep, and the GOP basically handcuffed itself to the Tangerine Mussolini.

      • MOG says:

        Concur. One day we (all American citizens) will wake to the realization that Mr. Barr was installed as AG by the RNC, and for the reasons you and others have suggested. To protect the party. I believe the general consensus within the RNC is “Trump is lost, but we must survive.”

        • RyanG says:

          It’s asinine to think the Republican Party can destroy itself. They gave us two Iraq wars, and look which party holds the presidency.

          • Rayne says:

            It *IS* destroying itself. Demographics combined with their doubling down on racism and the increasing mortality rate of white males is doing it; they are a shrinking minority holding power over a growing majority. The question is merely how ugly it will get before they are finally vanquished.

            • Democritus says:

              My fear is they start rigging races and just never give up power.

              Look at Georgia.

              We need hand marked paper ballots.

              • Rayne says:

                That’s why the House Dems’ investigation into gerrymandering voter rights[1] and Census 2020[2] is mission critical. With illegal race-based gerrymanders they can maintain minority governance by older white conservatives over a majority which is increasingly non-white and younger.

                This is why the GOP Senate is stacking the courts — because they want the courts to continue to find in favor of that illegally-obtained white conservative majority.

                If we are to break this before it becomes permanently rigged, every vote must turn out in 2020. Assuming the count is too large to be gamed, we must work on removing the judges who were not ABA qualified but approved by the Senate, IMO. We need to monitor the judges who refused to affirm Brown v. Board of Education as well.

                EDIT: [1] House Judiciary is investigating voter rights and voter ID; [2] House Oversight is investigating Census 2020. Both have some overlap and are matters shaped by/shaping gerrymandering. House Oversight issued subpoenas this week related to the Census 2020 investigation which Wilbur Ross had resisted and lied about too frequently.

  5. Jenny says:

    Conversations with Flynn and Kislyak key.
    Andrew McCabe’s book (page 200) “The Treat,” he spoke with Acting AG Sally Yates about informing the new administration regarding info on Flynn. Based on info in hand, Yates believed Flynn lied to VP, therefore a national-security vulnerability to blackmail by Russians. Four days after inauguration, McCabe called Flynn to sit down with two agents. Flynn agreed, happy to chat, very friendly.

    Direct from book:
    “One thing he said that stands out in my memory. When I told him that people were curious about his conversations with Kislyak, Flynn replied, You know what I said, because you guys were probably listening. To Flynn’s specific point, I had and have no comment. But I had to wonder, as events played out: If you thought we were listening, why did you lie?”

    Yates briefed on interview with Flynn, then went to WH with Flynn/Kislyak contact. Told Don McGahn. He asked her to come back a second time. Mon, Jan 30, Yates and McCord, (Acting Assistant AG for NS) told McGahn and WH staff about Flynn details and vulnerability with Russians.

    Direct from book, pages 201 – 202:
    “I was shocked to learn that McGahn hadn’t known Flynn had been interviewed by the FBI until Yates told him – apparently Flynn did not mention it to the White House counsel.”

    “Later that day, Yates was fired …”

    • Rayne says:

      Yupper, all that. I have been scratching my head over the timing and sequence of events related to Yates’ firing and her presentation of the information the FBI had on Flynn for two years now.

      I still want to know how/when the White House decided to pull the trigger on EO 13769, the Muslim travel ban, to which Yates’ firing was attributed. Was it really about Flynn instead and the Muslim travel ban was convenient?

      And was there another reason why the travel ban was instituted when it was — perhaps to facilitate Saudi and Saudi-friendly access to the U.S. while deterring any potential spies from competing Muslim-dominant countries, at a time when Flynn was working to launch a sell-out program of U.S. interests?

      • Jenny says:

        Thanks Rayne for the time line. Excellent to review!

        The one line from McGahn says it ALL from a lying president and administration: “Why does it matter to DOJ if one White House official lies to another?” (Of course WH doesn’t want McGahn to testify, he has the goods).
        Did McGahn go to FBI to look at “underlying evidence?”

        Good questions. Here is McCabe’s take on Yates, page 202:
        “Later that day, Yates was fired, ostensibly because she found the president’s executive order banning entry to travelers from seven counties with predominantly Muslim populations to be unlawful. Yates disagreed with the legality of the order. The disagreement could have been aired, and in some fashion resolved; if the order had gone through a customary interagency process before it was issued. Her dismissal stood out for another reason. She had spoken her mind, done her job, and stood by her principles – a fatal trifecta in the eyes of the White House.”

        • Rayne says:

          YES. Why was the executive order rushed before it had been fully reviewed?

          And though on the face of it we all suspect McCabe is right about the trifecta — with the added ‘failure’ of being a woman — why didn’t anybody in the White House including McGahn caution Trump that Yates’ opinion about the order was important and should be heeded instead of allowing him to terminate her?

          It looked not like a firing for insubordination but retaliation — and possibly worse.

          EDIT: Note McCabe’s use of the word “ostensibly.” Mm-hmm.

          • Jenny says:

            The firing was a punishment characteristic from the “dirty, filthy, disgusting” occupant in the WH.

          • Troutwaxer says:

            “Why was the executive order rushed before it had been fully reviewed?”

            I suspect that the reason for a lot of what we see as “violating norms” comes from the fact that the Trumps ran something which is, aside from the amounts involved, a small business. I suspect that they’re so naive and dumb that they don’t have a clue about how large organizations operate, so they have tantrums and fire people, then reinvent the wheel… and follow on by not having the faintest clue that a hundred thousand employees are watching them with sheer appalled horror!

            In essence, they’re dysfunctional hicks who just happen to come from New York.

            • P J Evans says:

              Tr8mp has made it clear, in the past, that he thinks his company is run in the same way as others are: with everyone ready to knife their co-worker/rivals in the back in order to gain even a slight advantage. That this is, in fact, not how most businesses operate never seems to have crossed the minds of anyone in his family. (And they don’t seem to be able to get a clue as to how to run a business any other way.)

            • Rayne says:

              You are being incredibly generous toward lifelong scofflaws. They fucking well know there are laws. They scoff at them.

              • Troutwaxer says:

                You’re certainly correct, and I wouldn’t argue with your formulation at all. But there’s also a certain kind boorish triumphalism to Trump’s reign that doesn’t really have anything to do with criminality so much as a toxic lack of sophistication. “Have someone from the legal department look at my proclamation? Why the fuck would anyone do that? Are you stupid or sumthin?”

                Trump isn’t merely horrible in one way. He’s horrible in many ways!

    • errant aesthete says:

      This is as close to ‘as good as it gets!’ Maximizing the Message through the forum that will get the greatest return. The Mueller Report – Free to all.

      As mentioned in the above thread, the [email protected]_com has put the recording entirely in the public domain, meaning it should be used with abandon on podcasts, data visualizations, in film, in YouTube videos, in PSAs, on TV, in cartoons, etc. Have at it, producers!

  6. Eureka says:

    OT- there is a massive Google Cloud outage going on, dozens of services affected (from #YouTubeDOWN to uber). Giant splotch on east coast US; outages spotty all over Europe, other US spots, some in South America. Checkout ‘Google Down’ and related trendings on twitter. Seems it is spreading- get your gmail and other crap done if you can. (Some speculating it is #768kDay; I don’t have the knowledge to assess this possibility.)

    Posting while I can, lol- some things totally down, some in-and-out.

    YouTube and Snapchat down as Google Cloud suffers major outage

    “Google Cloud”

    • Rayne says:

      Thanks, Eureka. I noticed a network burp earlier. Everyone here reading and commenting should likewise take note the cloud outage may be more than just storage going offline

      • Eureka says:

        This thread (ZDnet security reporter) caught my eye, see re Level 3 ISP and prior Azure outage:

        Catalin Cimpanu: “Google Cloud goes down, taking YouTube, Gmail, Snapchat, and others with it (article link)”

        manik: “Large service outage, including Level3 (downdetector link, maps)”

        ^^ this is in the thread; Google engineer

        Catalin Cimpanu: “Level 3 is also the same ISP who caused a major Azure outage just a few months back — also described as a networking issue. Azure story: (link)”

        I’m also seeing disinfo agents all over the place, including some newly-active left-troll twitter account that, if not Ru-run, is _trying to sound like it_ (@Cle8nE8rth8ct< replace the 8s with As to find). Hope Josh Russell's got this fucker in his database.

        • Rayne says:

          Huh. You see that one rather large red spot in a western state I will not name? That I find most interesting. Like somebody is poking around playing Whack-a-Mole.

          EDIT: I haven’t forgotten the rash of fiber cuts in summer of 2015 in SF/SV area of California. Never heard anything more about those.

          • Eureka says:

            Yup- and me, too neither (as in haven’t forgotten). Plus there was an east coast ~NYC pair of cuts ?? last summer or so– lost my internet when that happened. I’ll see if I have links for that in a min.

          • Eureka says:

            June 29, 2018, fiber cuts in NYC and NC, to two different Co.s’ lines; tho at this time we know of no cut fibers w current outage, folks online at time reported problems with diverse providers:

            Comcast Blames Widespread Service Outage on Cut Fiber Lines – WSJ

            Cuts to two fiber lines caused a widespread system failure at cable giant Comcast Corp. CMCSA 0.55% on Friday that knocked out cable, internet and phone services around the country.

            Philadelphia-based Comcast, one of the dominant telecom companies in the U.S. with more than 29 million business and residential customers, said the lines damaged are owned by CenturyLink Inc. and Zayo Group Holdings Inc.

            A spokeswoman for CenturyLink issued a statement saying CenturyLink’s network was working normally, though the company had “experienced two isolated fiber cuts in North Carolina affecting some customers that in and of itself did not cause the issues experienced by other providers.” The spokeswoman didn’t comment further.

            A spokesman for Zayo said the company experienced a fiber cut in the New York area but all services had been since restored.

            (Internal links removed)

            (Note CenturyLink now owns Level3, see wiki)

            Tw/threads at the time under #comcastoutage cited problems with lots of other providers, e.g.:

            “UPDATE: Some other ISPs are experiencing connectivity issues. Hearing reports of trouble in some areas on Verizon and AT&T LTE service that started to occur around the same time.”

            “Also, all you Xfinity customers swearing you’re switching to Verizon… they had a massive, eerily similar outage just days ago effecting the same areas lol. #comcastoutage”

            • Rayne says:

              Very interesting, thanks so much. When I get time I’ll have to poke around and see if the cuts were construction/repair/maintenance accidents or something else. The North Carolina disturbance is particularly interesting.

          • Eureka says:

            Links I had on hand re what we’re talking about; not sure if there’s a newer review:

            Russia escalates spy games after years of U.S. neglect

            Russian submarines are prowling around vital undersea cables. It’s making NATO nervous. [https://www.washingtonpost.com/world/europe/russian-submarines-are-prowling-around-vital-undersea-cables-its-making-nato-nervous/2017/12/22/d4c1f3da-e5d0-11e7-927a-e72eac1e73b6_story.html]

            The Secret History of the Russian Consulate in San Francisco

            Northern Arizona loses Internet, phone lines as CenturyLink fiber-optic line cut by vandals (From 2015)

    • Eureka says:

      LOL JB, just in case you needed it on your sickbed, I posted some scary bedtime stories/links. Get well soon!

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