Judge Sullivan Has Already Rejected Most of Timothy Shea’s DOJ Flynn Pardon

In this post, I laid out how Acting DC US Attorney Timothy Shea claimed DOJ had “newly” acquired a bunch of information which led it to decide to ask Judge Emmet Sullivan to dismiss Mike Flynn’s prosecution.

Except none of the information was new.

The table below shows what is known about the documents Shea relied on yesterday, using the exhibit numbers from DOJ’s filing. Some were already public, another had been provided to Flynn, others were probably reviewed in investigations of the circumstances of Flynn’s interviews (as explained below). It’s hard to square Shea’s claim that some of this was newly declassified, as most things that had once been classified had already been declassified publicly (and DOJ reclassified two lines from an Andrew McCabe memo, while declassifying a few more lines of it). Other documents were generated as part of this investigation, and so could in no way be deemed “new” to the prosecutors who generated them (nor to Rod Rosenstein, who approved Flynn’s prosecution). As for the rest, Flynn asked for them last year as part of a Brady motion, and Sullivan rejected those requests in a meticulous 92-page opinion written in December.

Effectively, then, Bill Barr appointed Jeffrey Jensen to “review” Flynn’s prosecution for one purpose: to override Judge Sullivan’s Brady decision last December.

As I keep repeating, it’s never a good idea to predict what Judge Sullivan will do. I expect he’ll review these exhibits closely and see whether they change his mind about DOJ’s representations that none of them were helpful to Flynn. He might find the Bill Priestap notes troubling, but that document is not only deliberative (and therefore always excluded from Brady), but it states clearly that, “our goal is to determine if Mike Flynn is going to tell the truth about his relationship w/Russians,” a goal Sullivan has already deemed proper.

It’s possible, however, that Sullivan will view these documents and recognize that they don’t change the order he already issued, finding Flynn’s lies material and his prior guilty pleas still valid. If he does, he may well be peeved that DOJ tried to overturn a judge’s ruling by bureaucratic fiat.

DOJ may not have had two FBI documents

There are just two documents that DOJ probably wouldn’t have already had or reviewed. One is a draft memo closing the investigation into Flynn. The other is the Jim Comey transcript briefing the House Intelligence Committee on the Flynn investigation. Because the former was an FBI document, it’s not clear it would ever have made it into DOJ files. And it dates to earlier than the Brady requests Flynn made last year. That said, the fact that FBI had decided to close out the investigation up until they discovered Flynn’s calls with Sergey Kislyak was public before Flynn pled guilty a second time, when he swore that he had no concerns about Brady. And the circumstances surrounding the non-closure of this investigation made it into 302s otherwise accounted for.

As to the Comey transcript, DOJ said it did not have an unredacted copy of this last year. But like the draft closure, the facts in it have long been public, most notably in the House Intelligence Report on their Russian investigation, which was done nine months before Flynn pled guilty again.

DOJ reviewed Page-Strzok texts and the meetings before and after Flynn’s interview

One of the things DOJ submitted as “new” information yesterday were Page-Strzok texts. We already know that DOJ IG reviewed every one of those, some of them multiple times, particularly if they pertained to Flynn or other Trump people.

As noted, documents pertaining to meetings before and after Flynn’s interview would likely have been reviewed by DOJ already, because DOJ repeatedly chased down allegations made about those meetings. Flynn already got an FBI Inspection Division 302 reflecting Peter Strzok being interviewed about some of these allegations and a Mueller 302 reflecting Lisa Page being interviewed about other ones. The government repeatedly looked into allegations that Andrew McCabe said, “First we fuck Flynn, then we fuck Trump,” at the meeting preparing for the Flynn interview (which is presumably what these notes record).

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, 4 who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time.

In fact, Bill Priestap’s notes of what appear to be the McCabe meeting show no such claim. He does reflect them talking about how to deal with Flynn’s comments. But they record no reference to Trump.

Emmet Sullivan reviewed two of these 302s

Of particular note, Emmet Sullivan already reviewed several of these documents. In his Brady opinion from December, he described an in camera review he did in December 2018, in part to make sure the summaries of the Mary McCord and Sally Yates 302s was adequate disclosure.

As to Requests a through f and Request i, the government has provided Mr. Flynn with: (a) “information from interviews with [Mr.] McCabe that could reasonably be construed as favorable and material to sentencing”; (b) “information that could reasonably be construed as favorable and material to sentencing about such pre-interview discussions, including the language quoted in the request”; (c) “information about such post-interview debriefings that could reasonably be construed as favorable and material to sentencing”; (d) “information from former [Principal] Associate Deputy Attorney General Matthew Axelrod’s interview report that could reasonably be construed as favorable and material to sentencing”; (e) “information from [Ms.] McCord’s interview report that could reasonably be construed as favorable and material to sentencing, including the information quoted in the request”; (f) “information from [Ms.] Yates’ interview report that could reasonably be construed as favorable and material to sentencing, including the information quoted in the request”;


Based on an in camera review of the government’s sealed submissions to the Court on December 14, 2018, see, e.g., Min. Order of Dec. 17, 2018; Gov’t’s Opp’n, ECF No. 122 at 16 n.8; Gov’t’s Notice of Disc. Correspondence, ECF No. 123 at 3, the Court agrees with the government that the requested information in Requests a through f and Request i has already been provided to Mr. Flynn in the form of appropriate summaries, see Gov’t’s App. A, ECF No. 122-1 at 6-7.

Given that Sullivan accounted for these documents, his materiality analysis is unlikely to change

As noted, Sullivan might decide that some of these documents should have been provided under Brady, in spite of his ruling on them. But unless he does, it’s unlikely his view on the materiality of Flynn’s lies will change, contrary to the footnote in Shea’s memo yesterday.

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

That’s because Sullivan knew when he wrote his opinion that FBI had almost closed the investigation of Flynn but reopened it after learning of Flynn’s comments to Kislyak. There’s nothing about this discussion that would change given what was disclosed yesterday.

Mr. Flynn argues that his false statements to the FBI were not “material” for two reasons. See Def.’s Reply, ECF No. 133 at 31-32. First, Mr. Flynn contends that his conversations with the Russian Ambassador were unrelated to the FBI’s investigation into Russia’s efforts to interfere in the 2016 presidential election because the interviewing FBI agents did not ask him a single question about election interference or any coordination between Russia and the Trump campaign. See id. Next, Mr. Flynn argues that the FBI had recordings and transcripts of his conversations with the Russian Ambassador, arguing that the FBI “knew exactly what was said” and “nothing impeded [the FBI’s] purported investigation.” Def.’s Sur-Surreply, ECF No. 135 at 12. The government responds that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s “counterintelligence investigation into whether individuals associated with the campaign of then candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election.” Gov’t’s Surreply, ECF No. 132 at 10.


Mr. Flynn has a fundamental misunderstanding of the law of materiality under 18 U.S.C. § 1001(a)(2), which requires a false statement to be “material.” United States v. Stone, 394 F. Supp. 3d 1, 12 (D.D.C. 2019) (materiality is a necessary element to establish a violation of the false statements statute). The Supreme Court has instructed that “[t]he statement must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.’” United States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); accord United States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979) (“Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects.”). But “a statement need not actually influence an agency in order to be material.” Moore, 612 F.3d at 701.

As a matter of law, the government need not prove that Mr. Flynn’s false statements impeded the FBI’s investigation in order to establish the materiality element. See id. at 702 (holding that defendant’s false statement “was capable of affecting the Postal Service’s general function of tracking packages and identifying the recipients of packages entrusted to it” and defendant’s false information “could have impeded the ability of the Postal Service to investigate the trafficking of narcotics through the mails”). And Mr. Flynn’s multiple false statements were material regardless of the interviewing FBI agents’ knowledge of any recordings and transcripts of his conversations with the Russian Ambassador—the existence or nonexistence of which have neither been confirmed nor denied by the government, see Gov’t’s App. A, ECF No. 122-1 at 5—and whether the FBI had knowledge of Mr. Flynn’s exact words during those conversations. See United States v. Safavian, 649 F.3d 688, 691 (D.C. Cir. 2011) (rejecting defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them”).

Mr. Flynn’s other argument—that his false statements about his conversations with the Russian Ambassador were not related to the investigation into Russia’s efforts to interfere in the election—is unavailing. “Application of § 1001 does not require judges to function as amateur sleuths, inquiring whether information specifically requested and unquestionably relevant to the department’s or agency’s charge would really be enough to alert a reasonably clever investigator that wrongdoing was afoot.” United States v. Hansen, 772 F.2d 940, 950 (D.C. Cir. 1985). Here, Mr. Flynn’s false statements to the FBI about his conversations with the Russian Ambassador were relevant to the FBI’s inquiry. See SOF at 1 ¶ 1. It is undisputed that the FBI had already opened the investigation to, among other things, investigate the “nature of any links between individuals associated with the [Trump] Campaign and Russia” at the time of Mr. Flynn’s January 24, 2017 interview. Id. A “lie distorting an investigation already in progress” could impact the FBI’s decision to act and follow leads. Hansen, 772 F.2d at 949; accord United States v. Stadd, 636 F.3d 630, 639 (D.C. Cir. 2011) (defendant’s false statements were material because the truth “would have raised red flags that would have led [the agency’s ethics advisor] to inquire further”). As Judge Amy Berman Jackson has noted, “it is axiomatic that the FBI is not precluded from following leads and, if warranted, opening a new investigation based on those leads when they uncover information in the course of a different investigation.” Kelley v. FBI, 67 F. Supp. 3d 240, 287 n.35 (D.D.C. 2014). The Court therefore finds that Mr. Flynn’s false statements were material within the meaning of 18 U.S.C. § 1001(a)(2).

It’s hard to look at the extensive record of the discussion about whether Flynn had lied submitted yesterday and not conclude that they presented DOJ with some real conflict about the investigation. Moreover, Comey’s comments, which preceded a number of investigative steps (like obtaining Flynn’s call records and interviews with KT McFarland and others), show that the investigation changed as it developed more proof that Flynn had knowingly lied.

When Flynn tried to get this information, Sullivan reminded him he had already sworn it didn’t matter

Finally, Shea’s silence about Flynn’s plea allocution before Sullivan is particularly damning given that Sullivan addressed it in his Brady motion in December. He pointed out that Flynn had already sworn, under oath, that he was not challenging the circumstances of his interview.

Six days later, on December 7, 2017, the case was randomly reassigned to this Court, which scheduled a sentencing hearing for December 18, 2018. During that hearing, the Court conducted an extension of the plea colloquy in view of statements made in Mr. Flynn’s sentencing memorandum that raised questions as to whether Mr. Flynn sought to challenge the circumstances of his FBI interview. In response to the Court’s questions, Mr. Flynn maintained his plea of guilty upon the advice of counsel. Mr. Flynn neither challenged the conditions of his FBI interview nor expressed any concerns with the government’s obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and this Court’s Standing Brady Order of February 16, 2018.


Finally, the Court summarily disposes of Mr. Flynn’s arguments that the FBI conducted an ambush interview for the purpose of trapping him into making false statements and that the government pressured him to enter a guilty plea. The record proves otherwise. See, e.g., Def.’s Br., ECF No. 109 at 4 (arguing that the government was “putting excruciating pressure on [Mr. Flynn] to enter his guilty plea”); Def.’s Reply, ECF No. 133 at 5 (arguing that “high-ranking FBI officials orchestrated an ambush-interview . . . for the purpose of trapping him into making false statements they could allege as false”); id. at 6 (asserting that the FBI and others “plot[tted] to set up an innocent man and create a crime”); id. at 18 (contending that “[t]he FBI had no factual or legal basis for a criminal investigation” and that the FBI’s investigation was a “pretext for investigating Mr. Flynn”); id. at 27 (arguing that “Mr. Flynn was honest with the [FBI] agents to the best of his recollection at the time, and the [FBI] agents knew it”).

The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI. E.g., Sentencing Hr’g Tr., ECF No. 103 at 11 (affirming it was not his “contention that Mr. Flynn was entrapped by the FBI”); id. (affirming that “Mr. Flynn’s rights were [not] violated by the fact that he did not have a lawyer present for the interview”); Plea Agreement, ECF No. 3 at 10 (“I fully understand this [Plea] Agreement and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound.”); Plea Hr’g Tr., ECF No. 16 at 29 (affirming that no one “forced, threatened, or coerced [Mr. Flynn] in any way into entering this plea of guilty”). And it is undisputed that Mr. Flynn not only made those false statements to the FBI agents, but he also made the same false statements to the Vice President and senior White House officials, who, in turn, repeated Mr. Flynn’s false statements to the American people on national television. See Gov’t’s Surreply, ECF No. 132 at 8.

Just six months ago, Emmet Sullivan examined the substance of the arguments that DOJ claims are new. He not only found that they did not affect Flynn’s guilty plea, but he reminded Flynn that Flynn already stated, under oath, that none of the things DOJ raised yesterday change that he was guilty of lying to the FBI.


August 16, 2016: Opening Executive Communication for Flynn investigation (Exhibit 2)

The FBI opened a full investigation into Mike Flynn to figure out whether he was wittingly or unwittingly being run by the FBI that might constitute a federal crime or pose a threat to national security. It listed FARA and 18 USC 951 as the crimes under investigation. This document was created as part of this prosecution. Flynn asked for this last year.

January 4, 2017: Draft Closing Communication closing investigation into Mike Flynn (Exhibit 1)

This reviews the investigative steps taken against Flynn, noting that the investigative team did not presume Flynn was an Agent of a Foreign Power, which limited the investigative steps significantly. Based on those steps, however, the FBI was closing the investigation. Timothy Shea does not contest that this was never finalized.

January 4, 2017: Emails between Jim Baker, Lisa Page, and Peter Strzok about the Logan Act (Exhibit 8)

These emails show FBI was discussing the Logan Act in the wake of discovering the Flynn interview. They don’t show that that was the only thing they discussed (and the public record makes clear it was not the only thing discussed). This discussion is reflected in 302s generated by the Mueller investigation. These documents would be included in the requests Flynn made last year.

January 4 through February 10, 2017: Texts involving Peter Strzok (Exhibit 7)

These texts include ones between Peter Strzok and the agents in charge of the Flynn investigation, asking them not to close it out. It includes texts between Strzok and Page about whether or not the investigation was closed out, and showing that Page had edited the 302. The Page-Strzok texts, by definition, were reviewed by DOJ IG. But the ones pertaining to the edit were actually less interesting than some previously released ones. Other texts were likely reviewed as part of the three investigations into the circumstances of Flynn’s interview. Flynn asked for these last year.

January 21 through 23, 2017: Emails involving Peter Strzok, Lisa Page, and others (Exhibit 9)

These emails capture the discussions about what to do about Flynn in the days before his interview, including brainstorming how they would respond to questions he might ask and whether they’d give him a False Statements admonishment. These emails were likely reviewed as part of the multiple reviews of the circumstances of Flynn’s interview. Flynn asked for these last year.

January 24, 2017: Bill Priestap notes on goals for the Mike Flynn interview (Exhibit 10)

These notes reflect a discussion about what investigative goals FBI had for the Flynn interview. Given that they seem to record Andrew McCabe’s statements, they were almost certainly reviewed in the multiple reviews of this meeting. Flynn asked for these last year, alleging they recorded Andrew McCabe saying “First we fuck Flynn, then we fuck Trump.”

January 24, 2017: A version of notes Andy McCabe took when he called up Flynn about an interview (Exhibit 11)

This was first shared with Judge Sullivan in unredacted form when he took Flynn’s plea in December 2018. This version is, in some respects, more classified than a version released last May. For example, last May DOJ revealed that McCabe agreed with Flynn that leaks were a problem.

Today’s version redacts that line as classified.

Obviously, Flynn has had this document since before he pled guilty the second time, and swore under oath that it did not change his guilty plea.

January 24, 2017: FBI Agents’ notes (Exhibit 12)

These were made public in Flynn exhibits in October (actual Pientka, actual Strzok). Sullivan conducted extensive analysis of these notes last year, demonstrating that, contrary to Sidney Powell’s claims, the false statements recorded in every version of Flynn’s 302s are consistent with the notes.

February 14, 2017: 302 from January 24, 2017 interview with Mike Flynn (Exhibit 6)

Flynn has had this since before he pled guilty. It is actually a more redacted version than the most recent one released in the BuzzFeed FOIA. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making.

March 2, 2017: House Intelligence Committee interview with Jim Comey (Exhibit 5)

This interview provides one version of how Comey decided to send FBI Agents to interview Flynn. It also includes a line — which has been egregiously misrepresented — describing how that FBI Agents thought Flynn was a credible liar. The Comey interview came before some other investigative steps would have made even more clear that Flynn had knowingly lied to the FBI. While this transcript had never been made public, the substance of it has long been public, including in the House Intelligence Committee Report on Russia.

July 17, 2017: 302 of FBI interview with Mary McCord (Exhibit 3)

This describes the FBI going through her notes with Mary McCord, who was Acting National Security Division head during the transition and beginning of the Trump Administration. The interview includes damning information making it clear that the Trump Administration tried to quash this investigation. It makes clear that the FBI interviewed Flynn to assess whether he was working for Russia as a clandestine Foreign Agent. In fact, Flynn asked for it because of what it said about him being a Foreign Agent, and on that basis, Sullivan judged it to be irrelevant to his plea for False Statements, and judged that a summary Flynn received before he pled guilty a second time was sufficient. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making.

July 19, 2017: 302 of FBI interview with Peter Strzok (Exhibit 13)

The FBI interviewed Strzok to understand how DOJ and FBI dealt with the Flynn prosecution. It was originally shared with Judge Sullivan in unredacted form at the 2018 sentencing and has been released in this form since then, twice. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making. Flynn had it before pleading guilty the second time, and swore under oath it did not affect his guilty plea.

August 15: 302 for FBI interview with Sally Yates (Exhibit 4)

This interview describes Yates’ understanding of how the investigation into Flynn started. While she describes the conflict between FBI and DOJ, she also makes it clear that she never questioned the seriousness of what Flynn had done. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making. Flynn got a summary of this before he pled guilty the second time, a summary that Sullivan said was sufficient. But he asked for it again last year.

50 replies
  1. SteveL says:

    Apparent typo, Marcy-

    Paragraph 3:

    “as most things that had once been declassified had already been declassified publicly”

    I think the first “declassified” should be “classified”

  2. Robert Britton says:

    Can someone please tell me when the LAW will matter again to more than just the poor everyday people and start being applied to those in power?

    (I will be standing over in the corner continuing to hold my breath while the Department of “Justice”, the Supreme Court, the Judicial Branch begin to hold this criminal regime accountable. If I am blue in the face (or dead), don’t bother calling 911. I’ll be in a better place than this shithole country we call America.

    Thank you.

    • Lisa says:

      I’ll be standing right there with you, Robert.

      (BTW, how does one get a regular log-in & password for this site? Is that only for paying subscribers?)

      • bmaz says:

        No, not at all. Because of security concerns, nothing is as easy as it should be. We apologize for that, but it is necessary. You can indeed sign up and, no, it does not cost anything. And, Lisa, we very much hope you do.

        • Lisa says:

          I can locate a way to log in but I can not find a way to sign up that does not involve supporting the site and while attempting to use the log in to sign up I was told I am now temporarily locked out. I’d appreciate being directed to where I can create a log in since I have clearly been unsuccessful in my attempts.

        • Rayne says:

          The login link you see at the upper right of page and at bottom in navigation are intended for folks with access to the backend of the site. I’m sorry this isn’t more clear.

          If you type in your name/email address/URL where applicable when you reply or allow your browser’s autofill to complete it, the Askimet service will screen your info before allowing your comment; the site will then recognize your information as a regular community member.

          EDIT: I should add one more point. Please use a more differentiated username when you comment next as we have several community members named “Lisa” or some variant. You recently used “Fenix” as a username. Thanks.

        • bmaz says:

          Second Rayne. Here is the thing though, if you want to be here, we will help you be here. We have always done that. If you continue to have problems, do not hesitate to tell me or Rayne, and we will try to assist. Not saying such assistance is perfect, it is not, but we care, and we will try.

        • Lisa/Fenix says:

          I will use Fenix, it is my posting name elsewhere. The back & forth occurred because I didn’t have a log in & could not remember what name I had previously used. I apologize for the confusion. As there is no password requirement my browser has not asked if I wanted to save a log in for this site & therefore I have been manually filling in those fields any time (infrequently) I had wanted to post. I’m also a bit intimidated by the intellect here & was afraid of sounding stupid. (However that cat is now officially out of the bag)

  3. Peterr says:

    Shea’s silence about Flynn’s plea allocution before Sullivan is particularly damning given that Sullivan addressed it in his Brady motion in December.

    Damning, yet completely understandable — Shea doesn’t want to remind Sullivan that he’s already disposed of this.

    I’m curious as to how things proceed from here. At some point, Sullivan is going to want the parties in front of him (whether in person or via Zoom or some such technology). Given that no other DOJ attorneys signed off on this filing save for Shea, would it be wrong to assume that Sullivan is going to want to have Shea present to present the DOJs case and answer Sullivan’s questions?

    Whether it is in writing, in person, via Zoom, or any combination of the three, and however Sullivan ultimately rules on the move to drop the charges, I predict Sullivan will not be at all pleased with Mr. Shea, and will make that displeasure known in minute detail, with some very colorful footnotes to drive his points home.

    • emptywheel says:

      Given what I know of Sullivan, I expect he’s reviewing these exhibits very closely, and comparing what is here to his December opinion. If he thinks some of this should have been turned over, he’ll accept this motion. If not, he’s likely to knock some heads.

      • Silly but True says:

        Also, technically, there’s been a flurry of activity. Coinciding with Shea request dismiss was _request_ from Van Grack to retire from the case. Like the case itself, it’s not a foregone conclusion that the court will or has to accept Van Grack recusing as the lead prosecutor.

        Sullivan may just as easily call Van Grack in lieu of Shea, or Van Grack and Shea together to explain Shea’s request.

        Van Grack’s current disposition is the same as Flynn’s case before the court. DoJ might want Van Grack off the case, but at this late point of the process, he’s not off the case, until Sullivan says he’s off the case.

        A recent and probably more infamous version of this same issue occurred when many speculated that that the court might not be so quickly inclined to accept the resignations of the entirety of the Stone prosecution team when DOJ HQ intervened in Stone’s sentencing recommendations.

        • bmaz says:

          Hi. This is yet another bizarre comment. There is no “technically”, items are either docketed or they are not.

          Your paragraphs 2-4 are complete gibberish. You must like the sound of your own voice. But spare us here please.

      • TooLoose LeTruck says:

        If not, he’s (Sullivan) likely to knock some heads.

        Aaaaaaah… something to hope for…

        And if this should come about, I’m so looking forward to reading his opinion…

        When I was younger, I looked up to sports figures – Jerry West, Tom Seaver – as my heroes… I know, I’m dating myself…

        And at this point in my life, it’s people like Fauci and Sullivan…

        It’s a strange place I find myself in…

        • GMoney says:

          This is the most thorough examination I have seen of any proceedings. Thanks for the clarity even counting the density of links and notes.

  4. Alan says:

    From the title, I thought you were saying the judge has already reviewed and issued a preliminary ruling on the motion to dismiss. A more accurate title might be “Judge Sullivan Previously Has Rejected [Most of the Arguments in] Timothy Shea’s DOJ Flynn Pardon”.

  5. biff murphy says:

    O/T and IANAL, But can someone here tell me how two major shitheads (Jacob Wohl and Jack Berman)
    who’ve tried to take down Elizabeth Warren, Robert Mueller, and most recently Dr, Fauci with false sexual allegations can still be walking around free and uncharged in anyway?
    Is trying to ruin people with fake allegations not against the law in any way?
    I’m just stupefied that these morons can continue to do this with no repercussions. Where does the law stand on these types of “Agent Provocateur Idiots”…
    Thanks biff

    • TooLoose LeTruck says:

      Right there with you, Biff…

      I’ve been wondering the same thing…

      What line do Wohl and Berman have to cross to get charged w/ something here?

      • P J Evans says:

        I keep thinking they should be under “attempted extortion” or something like that.

        • Fenix says:

          Ditto. Been wondering this as well.

          *wish there were a “like function” replying just to second a comment seems a bit much*

    • Rugger9 says:

      For most normal citizens, this is what defamation would cover, but since all of these targets are “public figures” then the level of proof is apparently higher. Otherwise, how would the National Enquirer and its ilk stay in business?

      It’s not unlimited but defamation litigations are rarely done for public figures unless crimes are alleged (and they are here). Likewise, with the Biden allegations from two discredited witnesses (one of the stories lasted less than two days) it’s clear that the GOP will stop at nothing to knock down Biden (who was looking at almost a double-digit lead over DJT) and I would expect that Barr will do his part as well. Something like what the SDNY FBI did with rumblings over Hillary’s emails when they hadn’t even asked to see Abedin’s computer much less actually searching it and getting evidence is what I would have expected, but Barr’s actions this week make it clear the WH will go far beyond those limits.

      This is about driving a wedge into Biden’s female support since DJT knows he will not get very much. The press is rather stupid sometimes (Megyn is “controversial” not deceptive, and I heard this whitewashing on a purportedly liberal show) and needs to point out DJT’s more credible 20 plus accusers, some of whom have already gone to court (Tara won’t, she wouldn’t survive a cross examination) but are blocked by procedural trickery and the DOJ opinion about being unable to prosecute a sitting President.

  6. Silly but True says:

    Part of the problem with complex investigations and prosecutions in general is the same problem that is central to this post and Jensen’s description of the Flynn case.

    “The government” knows many things. But prosecutions are a balkanized affair, with even varied aspects of a single case with a single defendant, being handled by different people or teams of people that all then somehow gets stitched together to make the case. “The government” knows many things; but any one individual in the government is not likely to know much. This is how Jensen can suggest a piece of information in the government’s possession might somehow exist as a new epiphany. Add in the even more complicating issue of a national security counter-intelligence investigation — whose primary purpose isn’t necessarily to produce federal prosecutions in federal criminal courts, but rather expeditiously stop attacks against the US in many ways possible, including extrajudicial killing (CIA drone strike policy that included even assassinations of U.S. citizens is an extreme example) — which complicates things immensely because much information typically gets exempted from view outright through national security provisions. The prosecution had generally made its responses to discovery requests as “here’s what I think my obligation is, and my obligation has been met.” It has done so, even in some cases when Sullivan specifically ordered it to turn over “everything” because the court would review separately and on court’s own accord whether the prosecution’s obligation has been met. And even in several instances in Flynn case last year, the court has to coordinate with both parties to resolve how certain national security discovery requests would be addressed, and which tests would be used because the questions weren’t as simple as either side had been suggesting.

    • bmaz says:

      You are not only “Silly” you are full of shit. You display no characteristics that could, or would, indicate you know anything from experience in criminal cases. You are just blowing shit out of your ass.

    • earlofhuntingdon says:

      Having a process to coordinating information coming from various team members is leadership and project management 101. That’s essential for a host of reasons, one being that whatever one team member knows is legally deemed to be known by everyone on the government or defense team. Similarly, whatever is in the public domain and reasonably accessible is deemed to be known by that professional. Likewise information generally known to professionals in a given field. Not knowing such things would be negligence, routine malpractice. Blatant failure to cooperate with a judge’s order is something else entirely, assuming you can meet a high burden of proof to show that.

      • earlofhuntingdon says:

        Yes, with more gusto and less academic reserve. But it’s always good to get the word out.

        • TooLoose LeTruck says:

          “Less academic reserve…”

          Heh… I like that turn of phrase, in this situation…

          And definitely called for…

      • Bobby Gladd says:

        Tru’ dat.

        Q: What do you think is the proportion of the electorate that simply does not care about these factual details?

        I recently finished the Wittes-Hennessey book “Ummaking the Presidency.” I found it rather jarring. Compelling, but disturbing in its implications for what we face going forward.

  7. Frank Probst says:

    Hard to predict what Sullivan will do, but I’m going to go ahead and predict that his mood will NOT be described as “serene” when he rules on this.

  8. OldTulsaDude says:

    The question to me is whether or not we as a country have the will to overwhelm and eliminate this cadre of would-be autocrats.

  9. ajcharnc says:

    Thank you Marcy & friends. When the news broke yesterday my first reaction was he already pled guilty and has court proceedings with Judge Sullivan, it can’t be summarily cancelled. The second was give it 12 hours and go visit emptywheel.

    Not disappointed, excellent work & commentary. Its wait and see what Judge Sullivan has to say. How irritated will he be?


    • Cheryl says:

      Ditto. I mainly absorb the great knowledge and commentary. It helps me understand, especially now.

  10. Robin Harper says:

    This is TOTALLY off topic, but I just want to thank the incredible people here at emptywheel for the articles posted daily. I’m not a lawyer, so sometimes I have to re-read a section a time or two to force understanding into my poor old head. But I can find information here that helps me to deal with the chaos going on around us. I know that what I read here isn’t full of media hype.

    So thank you to everyone involved here…you help me so much!

    • Ken Scott/Sundog says:

      It’s also fun watching BMAZ flame people who think they can befuddle him and everyone else with their bullshit. I keep checking back in to see if Judge Sullivan has responded yet. I’m hoping for something unambiguously epic.

      • Juniper-Jones says:

        Or maybe Bmaz is just a rude off-putting jerk turning people away with sincere questions?

        [You were asked to stick to one username back in October 2019. Your continued sockpuppetry was noted again in December 2019. This is strike three with an ad hominem aimed at a contributor/moderator. Oh, and don’t think I’ve forgotten your first nasty potshot was at me a year ago. /~Rayne]

        • bmaz says:

          Or maybe you are an idiot who cherishes Fox Newsiness bullshit. Happy Mother’s Day!

          For the record, “Juniper Jones” is a troll that formerly appeared as “I Value My Privacy” and under a series of patently false registrations here. Yes, we know when someone is full of shit.

  11. Juniper-Jones says:

    This Foxnews article by Gregg Re (linked to at end of my comment) makes the claim that Van Grack did not “comply with a court order to produce favorable evidence to Flynn”. It suggests that this may be why he withdrew from the Flynn case:

    >What Van Grack didn’t inform the court about – and didn’t provide to Flynn – was the newly unsealed January 4, 2017 “Closing Communication” from the FBI Washington Field Office, which recommended the FBI close its investigation of Flynn, as its exhaustive search through government databases “did not yield any information on which to predicate further investigative efforts.”

    >Van Grack also failed to provide evidence to Flynn’s attorneys that anti-Trump former FBI agent Peter Strzok then immediately intervened and instructed the FBI case manager handling the Flynn investigation to keep the probe open, followed by indicators that the bureau would seek to investigate Flynn for possible violations of an obscure 18th century law known as the Logan Act — which has never been utilized in a modern prosecution.

    So my question is: (1) was the production of these documents required under the law and court order? (2) would Van Grack required to provide evidence that Peter Strzok and others intervened to keep the case open? and (3) the relevance of the Logan Act as justification for investigation, if in fact it really was.

    I understand these questions might irritate some people, who suspect that everyone who asks questions are concern trolls and sock puppets, but I am actually interested in knowing the answers.


      • Juniper-Jones says:

        I asked a question. I am genuinely interested in the answer. Your rudeness and hostility are unwarranted. And counter-productive, because it makes it look like you are afraid to answer the question. So

        (1) was the production of these documents required under the law and court order? [I don’t know; I’m not a lawyer; I’m only a citizen who wants to live in a just and fair society]
        (2) was Van Greck required to provide Flynn with an account of how Peter Strzok and others intervened to keep the case from being closed? [I don’t know; I’m not a lawyer; I’m only a citizen who wants to live in a just and fair society]
        (3) Was the Logan Act used as a justification to keep the investigation open, should it have been, and was/should Flynn have been notified of that? [I don’t know; I don’t have time to read every court document that has been filed in the case, but I’m a citizen who wants to live in a just and fair society]

        It is not the first time that I have dropped by seeing clarity, and it is not the first time that you (and you Bmaz in particular) have responded to me in this way. If you don’t want random people posting questions to the blog, restrict commenting to people with accounts and give accounts only to people you trust. Otherwise, treat people with respect when they do.

  12. Jenny says:

    Bishop Garrison on Twitter: 3:38 PM · May 7, 2020
    One man goes for a jog in his neighborhood – unarmed, guilty of nothing – & is gunned down with no arrests. Another lies to fed law enforcement officials twice, pleads guilty, & is freed with apologies. It would be a decent work of fiction if it weren’t true & heartbreaking.

  13. Eureka says:

    I love your posts in this sub-series so far, Marcy: as I’d commented to bmaz (re his and yours) they are super clear on framing the issues present (past) and future with this … latest episode.

    Not that one would expect anything less, it’s just the that the [overarching paymaster]- brigades flood the fields with so much rotten milk that it can become a generally aversive topic (…which is part of the point…).

Comments are closed.