Did Mike Flynn Gamble and Lose on Bill Barr and Michael Horowitz?

Since the beginning of Mike Flynn’s attempt to blow up his plea deal, he has been investing his hopes on two things: first, that Bill Barr’s efforts to discredit the investigation into Flynn and other Trump flunkies will find something of merit, and that Michael Horowitz’s Inspector General Report into the origins of the Russian investigation will likewise substantiate Flynn’s claims the investigation into him was a witch hunt.

Even before Covington & Burling had withdrawn from representing Flynn, Sidney Powell wrote Barr and Jeffrey Rosen making wild claims that Flynn had been illegally targeted. Both that letter and Flynn’s motion for what he purported was Brady material asked for FISA materials that actually related to FISA orders on Carter Page, as well as any Brady or Giglio material found in Barr and Horowitz’s investigations.

His reply tied the FISA Report directly to its claim that the government can’t be trusted to comply with Brady.

The Mueller Report established that there was no conspiracy between anyone in the Trump campaign and Russia. It is also apparent now, or will be upon the release of the FISA report of the Inspector General, that the FBI and DOJ had no legal basis to obtain a FISA warrant against Carter Page or to investigate Mr. Flynn. 13 Yet, the government wants us to accept its word that the defense has everything to which it is entitled. Fortunately Brady exists to protect the accused “from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.”

The entire effort to blow up his plea deal was a risky bet that either Barr and/or Horowitz would deliver some basis for Emmet Sullivan to throw out his prosecution.

Thus far, the only thing Barr’s worldwide wild goose chase has turned up are two phones once owned by Joseph Mifsud that the government quickly pointed out are totally unrelated to Flynn.

Yesterday, the government and Flynn asked Judge Sullivan to delay the briefing schedule that would have led up to a December 18 sentencing, a request Sullivan granted today. The request noted that both sides expect the IG Report to relate to Flynn’s case, even while DOJ pretends not to have inside information about when the report will be released.

Additionally, the parties note that the Department of Justice’s Office of the Inspector General (OIG) is conducting an Examination of the Department’s and the FBI’s Compliance with Legal Requirements and Policies in Applications Filed with the US. Foreign Intelligence Surveillance Court Relating to a certain US. Person. The parties expect that the report of this investigation will examine topics related to several matters raised by the defendant. As widely reported by the media, that report is expected to issue in the next several weeks.

Thus far, however, the public reporting on the IG Report suggests the report will not only not corroborate the claims Flynn wants it to, but affirmatively undermine some of his claims. For example, the NYT describes that the report attributes blame to low-level employees but not the senior figures — Jim Comey, Andrew McCabe, and Peter Strzok — that Flynn’s entire challenge focuses on.

A highly anticipated report by the Justice Department’s inspector general is expected to sharply criticize lower-level F.B.I. officials as well as bureau leaders involved in the early stages of the Trump-Russia investigation, but to absolve the top ranks of abusing their powers out of bias against President Trump, according to people briefed on a draft.

[snip]

In particular, while Mr. Horowitz criticizes F.B.I. leadership for its handling of the highly fraught Russia investigation in some ways, he made no finding of politically biased actions by top officials Mr. Trump has vilified like the former F.B.I. director James B. Comey; Andrew G. McCabe, the former deputy who temporarily ran the bureau after the president fired Mr. Comey in 2017; and Peter Strzok, a former top counterintelligence agent.

And Horowitz’s reported finding that DOJ and FBI did not coordinate very well (something backed by materials Flynn already has in his possession) undermines Flynn’s allegations that everyone who works at both FBI and DOJ was in cahoots against Trump and therefore Flynn.

[T]he bureau and the Justice Department displayed poor coordination during the investigation, they said.

Finally, the adverse findings Horowitz will lay out largely relate to the Carter Page FISA, which had very little bearing on Flynn.

Investigators for the inspector general, Michael E. Horowitz, uncovered errors and omissions in documents related to the wiretapping of a former Trump campaign adviser, Carter Page — including that a low-level lawyer, Kevin Clinesmith, altered an email that officials used to prepare to seek court approval to renew the wiretap, the people said.

[snip]

Mr. Horowitz’s investigators have suggested that he is likely to conclude that the filings exaggerated Mr. Steele’s track record in terms of the amount of value that the F.B.I. derived from information he supplied in previous investigations. The court filings in the Page wiretap application said his material was “used in criminal proceedings,” but it was never part of an affidavit, search warrant or courtroom evidence.

(Note, I believe the IG is wrong to base the value of Steele’s information on what shows up in affidavits, because this is precisely the kind of thing that would be parallel constructed out of affidavits, by design.)

And the report will specifically deny a key claim Flynn has made, that the investigation into him derives from Steele or the CIA.

None of the evidence used to open the investigation came from the C.I.A. or from a notorious dossier of claims about Trump-Russia ties compiled by Christopher Steele, a former British intelligence agent whose research was funded by Democrats, the report concludes, according to the people briefed on it.

In short, the report will be damning on some fronts. But not damning in a way that will be very useful for Flynn.

Which leaves him well over his skis at a time when Sullivan may be conducting a close review of how flimsy Powell’s claims really are.

Update: And even as I was posting this, the NYT reported that the report will also confirm that the FBI was not spying on Trump’s campaign.

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46 replies
  1. Wajim says:

    Love the metaphor “over his skis,’ even if a raging cliché (ha, yes, I do it, too; shut up). My question is, though, where is punaise when you need some?

    • emptywheel says:

      He’s a different part of DOJ than the prosecutors are. So they probably want to maintain that independence.

      • Theresa N says:

        Oh gee. And I thought Horowitz had been completely invalidated by the deranged religious zealot BillBarr. I guess this time around, in an effort to salvage his reputation (after his last report where he professed that anyone witnessing a president committing a crime has a duty to keep his/her mouth shut), he’s going rogue. Good luck with that. Everything #Individual1 touches dies.

      • PSWebster says:

        Thank you, Emptywheel, for pointing out the announced release date was from a different side of the DOJ. Could not figure that out.

  2. Mitch Neher says:

    Is there any indication that Horowitz is going to drop the other shoe on The God-Damned, Whipsawing New York Office of The FBI?

    [I do know that that’s a lot to ask. But I just don’t give a damn anymore about asking for more than I could ever hope to get.]

  3. Rapier says:

    Flynn’s more fundamental error is thinking that anyone important, much less the public, cares about him at all. He’s old news. Soon to be an obscure footnote of the Trump administration.

    • sproggit says:

      I can absolutely see why you would make that statement, but I think it’s a little unfair. Out of all of the people charged as a consequence of the Mueller investigation, Flynn was the first (and with the exception of Cohen) the only one who pled guilty and went on to cooperate – as far as we know – to the best of his abilities.

      Obviously we also know that he has changed his tune: we don’t know why.

      Here’s one theory: Flynn started prosecuting long before the Mueller report was released. He is/was in a position to be in possession of a lot of inside information – and it’s possible that not all of that is known.

      So maybe Flynn looked at his insider knowledge and agreed with Trump’s own, infamous assessment (when the President infamously said, “That’s it – I’m f###ed!”). Expecting Trump to sink like the Titanic, Flynn took a chance on a lifeline by cooperating, during which he admitted to a stack of wrongdoing (much of which, in fairness, was recorded in black-and-white).

      So when Trump “got off” the hook on the Mueller investigation, that left Flynn as one of a handful of participants left for dead by the President. There was no incentive for Trump to cut Flynn any slack – because he turned in to a co-operating witness instantly) and now Flynn is out to dry.

      In that scenario, is it hard to believe that he’d take any story from a couple of TV lawyers who come in late with news that, “Hey, you got suckered – and we can get you out of this mess…” ?

      I feel zero sympathy for the guy, I just think he’s been out-played. Kinda reminds me of that old (and sage) piece of advice for poker players… “If you start playing poker and after 3 rounds, you don’t know who the patsy is, you’re the patsy…” Flynn just got completely out-played, mainly by events unfolding around him.

      • sproggit says:

        Correction: “Flynn started prosecuting” should have read, “The prosecution of Flynn started…” Brain-fart. Sorry.

      • Vicki Greenberg says:

        When you said “outplayed” my first response was “by who exactly?”
        Any chance that Flynn was holding something back and team Trump knew it?
        That this lawyer is not just a wingnut, but a wingnut sent to do exactly what she did?
        Flynn stopped talking to authorities and acting like a reasonable man because he believed that this alternative conspiracy would set him free. I can’t believe that she alone could have given him the confidence to take such a leap.

        • sproggit says:

          That’s a good point, it’s fair and in the circumstances it is plausible.

          Is it possible, then, that during the time window prior to the release of the Mueller report, Trump and Flynn were getting legal advice along the lines of “It is likely you are being monitored, so do not attempt to communicate?”

          That advice could have changed when Mueller’s report became released.

          I also saw/read an interesting and entirely un-substantiated speculation, that Flynn’s new lawyers also have the ability to provide a useful service – that of secure courier, since they can of course discuss matters with two or more clients and convey messages protected by attorney-client privilege. No way of knowing if there is any substance to that.

  4. Chuffy says:

    Curious about his plea deal. What information did we get out of him that was so valuable? Now that the Stone trial is over, as is the Mueller investigation, why is this taking so long? IANAL

  5. gmoke says:

    I’m wondering whether the connections between Flynn and Turkey will come out when and if he ever finally gets to the sentencing hearing and whether that will have any effect on the latest round of treasonous stupidity.

    My feeling has always been it ain’t just Russians but also Turks, Israelis, Chinese, independent actors, including the 400 lb hacker in Momma’s basement, corporations, billionaires, and anyone else who knows how to jigger a computer on the Internet who have been interested in ratfcking our political and electoral process, for $$$ or lols or whatever.

    We need to widen our horizons I fear.

  6. Vince says:

    The hits just keep on comin’:

    DOJ’s Inspector General Report Debunks Racist Donnie’s Claims About The FBI “Spying” On Him

    In a highly anticipated report due out this December 9, the Justice Department’s inspector general is expected to find that there’s no evidence that the FBI spied on Racist Donnie’s campaign in 2016 during their investigation into alleged Russian collusion.

    The findings undercut a major narrative disseminated by Racist Donnie, his most vocal supporters, and elements of the right-wing media, who claimed that the “Deep State” illegally spied on the his campaign in an ongoing attempt to undermine his candidacy, and ultimately his presidency.

    The inspector general, Michael E. Horowitz, also found that the FBI was not politically motivated when the agency pursued a secret wiretap on his former campaign adviser, Carter Page.

  7. Frank Probst says:

    “The Mueller Report established that there was no conspiracy between anyone in the Trump campaign and Russia.” You know you’re in trouble when your legal letter/brief uses an obvious falsehood that the judge will only miss if the page that it’s on gets stuck to the previous one when they’re reading it.

    • timbo says:

      Yeah, given that that is precisely NOT what the report says, it will be interesting to see Sullivan’s take on that particular line of argument.

  8. I Never Lie and am Always Right says:

    If Flynn and Stone end up at the same federal penitentiary, along with some of their other professional colleagues, we must have a new TV series. Of course, the name of the Series will be “The Flynn-Stones,” and the theme song almost writes itself:

    Flynn-Stones, meet the Flynn-Stones.
    They’re the nicest prison family.
    They are such polite folks:
    Always saying “Will you pardon me?”

    Let’s ride to the prison straight from court,
    And waive to their buddy Manafort.

    When you’re with the Flynn-Stones
    You’re gonna do time,
    Yes really do time,
    You’re gonna do hard time!

  9. bmaz says:

    I’ll wait to read Horowitz’s actual report I guess, but if this is all he found, he didn’t find squat. I’ve attacked warrant affidavits for decades. They stand or fall on what is in their “four corners”. And I am here to tell you, they almost always stand. Nitpicky shit like is currently being reported doesn’t mean anything, and certainly doesn’t as to Flynn. Flynn decided to roll with a Fox News noisy quack, and this “defense” was laughable from the start.

    But, back to the Page warrants, what I have seen is fine. Repeated courts thought so too. CI’s are used everyday through language drafted by case officers and/or prosecutors. The description and backgrounding of Steele was plenty sufficient. The arguments to the contrary made by the howlers, to date, have been complete garbage. They are pablum for Fox News dolts, but are not real.

    • my name is jim says:

      The last IG report on out of control and completely unsupervised use of Confidential Human Sources belies most of what is being said here.

      Didnt find is different from this was all copacetic

      Cant think of another instance or precedent for recruiting CI inside the White House and specifically on VP Pences staff

      But I’m sure that is just a me problem

        • my name is jim says:

          It was weird how the Strzok/Page text messages mentioning him came out about the same time that Judge Rudy Contreras is off the case (after accepting Flynn’s guilty plea).

          But there really is nothing to see and the two top level FBI folk running the Flynn shit-show are “not out of the norm” so it’ll have no affect on the case [even though the FBI made no effort to ‘find’ them but instead let the press reports speak for themselves as the way Flynn’s defense team got them] or Flynn’s plea.

          The CI they were developing had something to do with “Katie’s husband” who worked for Pence. Katie worked for Strzok. It was Pence’s comments that brought the Flynn case into the realm of possible “treason” and the way they squeezed him for the plea. Also, in those texts, who the hell is Charlie that they wanted to go up and break into Flynn’s office while he wasn’t around? Was it Eric Ciaramella

          The FBI has an image problem and the can of worms opened by Strzok texting his biases and opinions on government issued devices surely won’t affect any other cases because the large gap in the texts surely don’t contain any other damning material related to Flynn or anyone else because his real target was smelly-Walmart people generally and/or Trump specifically.

          We are all good here. Nothing to see, move along.

  10. hollywood says:

    It was a two stage gamble.
    First, try to get the plea thrown out.
    Second, failing that, get a pardon. But depending on sentencing date, the time may have been served before the election (hence, pardon is meaningless).

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