The Logan Act Is Just the Cherry on Mike Flynn’s Foreign Agent Sundae

There’s an ironic line in Billy Barr’s CBS interview this week, where he acknowledges that prosecutors can become too wedded to a particular outcome.

These are very smart people who were working in the special counsel’s office, and in senior levels of the FBI. So what drove them here?

Well, I think one of the things you have to guard against, both as a prosecutor and I think as an investigator, is that if you get too wedded to a particular outcome and you’re pursuing a particular agenda, you close your eyes to anything that sort of doesn’t fit with your preconception. And I think that’s probably the phenomenon we’re looking at here.

That’s because Barr and Sidney Powell have the frothy right chasing the Logan Act like six year olds after a soccer ball as if that was the only basis to interview Mike Flynn on January 24, 2017. It’s unclear whether frothy commenters have been duped by Barr’s guile, or they just haven’t read the record.

The record is crystal clear, however: When the investigation into Mike Flynn was opened on August 16, 2016, he was being investigated as a witting or unwitting Agent of a Foreign Power (Barr’s DOJ — and DOJ IG — have both made the same error in suggesting this was just about FARA, but the investigation was also predicated under 18 USC 951). Timothy Shea conceded in his motion to dismiss the prosecution that that investigation was never closed. And evidence from three different contemporaneous witnesses — Jim Comey, Mary McCord, and Bill Priestap — say that’s why the FBI interviewed Flynn on January 24, 2017.

Bill Priestap made clear that they did this interview to find out whether Flynn was acting as an agent for Russia.

The FBI’s provided rationale for doing the interview was that the existence of the investigation had already leaked, so Flynn was already aware that the information was being discussed publicly and there was no element of surprise. Priestap told the group the goal of the interview was whether to determine whether or not Flynn was in a clandestine relationship with the Russians.

That’s what Comey said, too.

MR. COMEY: To find out whether there was something we were missing about his relationship with the Russians and whether he would — because we had this disconnect publicly between what the Vice President was saying and what we knew. And so before we closed an investigation of Flynn, I wanted them to sit before him and say what is the deal?

The Priestap notes that the frothy right is pointing to as proof of abuse makes quite clear that the point of the interview was not to create a perjury trap, but to see whether Flynn would be honest about his relationship with the Russians.

Bob Litt, who (per these same records) was the first person to raise the Logan Act, analyzed the ways that Timothy Shea’s motion conflicts with the FBI’s DIOG. He described the interview to be, first and foremost, about counterintelligence.

The attorney general and his minions are making the astounding argument that when the FBI—aware of extensive Russian interference in U.S. politics in order to benefit the Trump campaign—learned that the incoming national security advisor requested that Russia not respond to the sanctions that were imposed in response to that interference and then lied to other government officials about that, it could not even “collect information or facts to determine” whether this created a counterintelligence threat. This cannot be right. Even if the prior investigation into Flynn had been closed, which it had not, these circumstances at a minimum justified an assessment under standard FBI policy.

In fact, the department’s motion virtually concedes the point. It dismisses Flynn’s lies to Pence and Spicer by saying that “[h]ad the FBI been deeply concerned about the disparities between what they knew had been said on the calls and the representations of Vice President Pence or Mr. Spicer, it would have sought to speak with them directly, but did not.” But that would be a kind of investigative activity, and under the DIOG, either the FBI has a basis to investigate or it doesn’t. If the facts justified talking to Pence about Flynn, they justified talking to Flynn.

Once you have a predicated investigation into 18 USC 951, adding another potential crime (the Logan Act) does not change that the investigation into 18 USC 951 remained, per Shea, ongoing.

In his interview, Barr misrepresents the record to claim what Flynn did — undermining the punishment imposed on a hostile foreign country after they attacked us — was “laudable.”

They did not have a basis for a counterintelligence investigation against Flynn at that stage, based on a perfectly legitimate and appropriate call he made as a member of the transition. So.

[snip]

Let me say that, at that point, he was the designated national security adviser for President-Elect Trump, and was part of the transition, which is recognized by the government and funded by the government as an important function to bring in a new administration. And it is very typical, very common for the national security team of the incoming president to communicate with foreign leaders.

And that call, there was nothing wrong with it whatever. In fact, it was laudable. He– and it was nothing inconsistent with the Obama administration’s policies. And it was in U.S. interests. He was saying to the Russians, you know, “Don’t escalate.” And they asked him if he remembered saying that, and he said he didn’t remember that.

There are several problems with this claim.

For starters, at first, Mary McCord agreed with this take. She dismissed the call for the same reasons Barr still does — that this was just the typical communication between an incoming national security team and foreign leaders.

Two things changed her mind.

The first was the evidence that Flynn was lying about what he did to others in the incoming Administration.

It seemed logical to her that there may be some communications between an incoming administration and their foreign partners, so the Logan Act seemed like a stretch to her. She described the matter as “concerning” but with no particular urgency. In early January, McCord did not think people were considering briefing the incoming administration. However, that changed when Vice President Michael Pence went on Face the Nation and said things McCord knew to be untrue. Also, as time went on, and then-White House spokesperson Sean Spicer made comments about Flynn’s actions she knew to be false, the urgency grew.

It is normal for officials in incoming Administrations to reach out to foreign leaders. But it is not the norm for incoming officials to freelance, to set policy that no one else in the Administration knows about. And the public evidence at the time the FBI interviewed Flynn was that he had done this on his own and was actively hiding it form his colleagues (as indeed the current record says he was).

The record that Barr distorted in this interview shows that FBI was in a holding pattern until there was public evidence that Flynn had lied to others in the Administration, which not only changed the calculus about warning the Administration, but created urgency to take an investigative step FBI might not otherwise have done.

The other thing that changed McCord’s mind about whether this was the normal pre-inauguration outreach was reading the transcript.

After reading them, she felt they were “worse” than she initially thought; she noted that her recollection of them is that Flynn proactively raised the issue of sanctions, and she feels it is hard to believe he would forget talking about something he raised himself.

Sally Yates described Flynn make a series of asks, some of which remain classified.

And McCord wasn’t the only one who responded that way. Once Mike Pence and Reince Priebus read the transcripts, Flynn was out the door the next day.

Notably, even though Ric Grenell is in the middle of a declassification spree, neither he nor Barr have chosen to declassify the actual transcripts here, even though Flynn has requested them repeatedly. Barr’s DOJ is also withholding other details that would describe the reaction of Administration officials to reading the transcript in the Buzzfeed FOIA. So it’s easy for Barr to claim this was normal, but a career prosecutor who read the transcripts said they weren’t, and Barr is deliberately withholding information that would let us test that claim.

This is why DOJ’s materiality argument fails, too. Had Flynn told the truth, the FBI might have had reason to treat this as the normal pre-inauguration contact. But once he lied, the FBI had more reason to continue investigating, to try to figure out why he lied. All the more so given that Flynn was hiding his other Foreign Agent relationship with Turkey at the time.

If Flynn’s behavior were, as Barr claims, “laudable,” then he would have simply admitted it. Once he lied about it, the FBI had more reason to suspect he had been freelancing, deliberately undermining American policy without the sanction and knowledge of others in the Trump Administration.

Only one thing explains Barr’s view, and it is damning. The FBI had reason to investigate anyway, and as Litt correctly lays out, these actions were solidly within the guidelines laid out in the FBI’s Domestic Investigations and Operations Guide. But the only way to conclude, as Barr has, that Flynn’s actions — calling up the Russian Ambassador and telling him not to worry about the sanctions imposed for helping Trump get elected — are not clear cut evidence that he was clandestinely operating as an Agent of Russia is if Trump told him to do it.

That doesn’t make it laudable. But it is as close as we’ve ever come to an admission that Flynn did this not just with the knowledge of, but on orders from, Trump. That’s probably why Trump is boasting about learning from Nixon right now: Because unlike Nixon, he got away with cheating to win an election.

image_print
85 replies
    • Bobby Gladd says:

      Agree.

      But, I hope enough of the right people will give a flip and push back effectively. The MAGA cohort clearly does not care. They will continue to buy the loudly recursive “total exoneration of an innocent, fine gentleman” schtick.

      • JamesJoyce says:

        “The MAGA cohort clearly does not care.“

        Nazi did not care either. I do not pull any “punches” here. The lack of empathy is at the very core of this “dysfunction.”

        Barr makes it up as they once made it up in Germany.

        The winner gets the spoils?

        Like a Merker’s Mine Find…

        Trump is a virus and always has been. His true believers are “grossly mistaken.”

        The Sons, Grandsons and Nephews of Tricky Dick et. als. are relentless in the pursuit of power. Like most…

        Nixon would have nixed the china bug. Nixon was more dutiful than the current misfits…

        President Richard M. Nixon stepped aside.

        Trump never will.

    • Salt of the Earth says:

      I do not agree with many opinions of this website but I read it because it is fair and analytical. It challenges my thinking. Do you think there was a FISA on Michael Flynn? Many suggest there was, so the FBI had everything on him, including transcripts of his phone call with the Russian ambassador. A FISA warrant makes sense since they thought he was an agent of Russia. If not, they could have gotten everything on him if he and Carter Page had any traceable contact.
      Why, then, did Strvok have to go to Comey to keep the investigation open? (The FBI recommended in January 2017 to close the investigation since they had not found anything.) and why would they keep an investigation open unless it was a political move? Flynn knew too much!

  1. John Forde says:

    How incriminating is the Kislyak – Flynn transcript?
    Might Sullivan release it?
    Does he posses it?
    Or can he force its release?

      • harpie says:

        I should probably know this, [my brain is mush] but is there one or more than one Kislyak – Flynn transcript?

        • emptywheel says:

          Yes. There were at least two conversations about sanctions, one on 12/29 and another on 12/31. Plus several conversations about Israel and UN. Given the redactions in Sally Yates’ 302, there may be more.

    • Marji Campbell says:

      so I remember after all the questions about Flynn’s call (in January?), trump said he’d done nothing wrong, in fact, he would have wanted Flynn to do what he did. (Kinda similar to, Russia, if you’re listening…?)

      • Savage Librarian says:

        It seems like Barr and Trump have learned the same language patterns. Here is an excerpt that shows an example. Johnston does a masterful job in this insightful article.

        “Just What Were Donald Trump’s Ties to the Mob?” – POLITICO Magazine – 5/22/16 – David Cay Johnston
        …..
        “Donald Trump vouched for Weichselbaum before his sentencing, writing that the drug trafficker is “a credit to the community” who was “conscientious, forthright, and diligent.” And while Weichselbaum’s confederates got as many as 20 years, Weichselbaum himself got only three, serving 18 months before he was released from the urban prison that the Bureau of Prisons maintains in New York City. In seeking early release, Weichselbaum said Trump had a job waiting for him.”

        “Weichselbaum then moved into Trump Tower, his girlfriend having recently bought two adjoining apartments there for $2.4 million. The cash purchase left no public record of whether any money actually changed hands or, if it did, where it came from. I asked Trump at the time for documents relating to the sale; he did not respond.”

        “As a casino owner, Trump could have lost his license for associating with Weichselbaum. Trump has never been known to use drugs or even drink. What motivated him to risk his valuable license by standing up for a drug trafficker remains unclear to this day.”

        https://www.politico.com/magazine/story/2016/05/donald-trump-2016-mob-organized-crime-213910

  2. Ruthie says:

    I know we’re in the middle of a pandemic, and news coverage of same is obviously critically important, but it’s been disheartening to see how little news coverage this has gotten over the last couple of days.

  3. Tim says:

    Thanks Marcy. Whenever I find I’m too far down the no-exit road to Trump’s version of Pottersville (due, in no small part, to credulous reporting in the MSM), you throw me a lifeline and haul me back.

  4. The Old Redneck says:

    Marcy, you’ve gone above and beyond in connecting the dots. This is some critical context.
    Think about the admin’s choices. You can’t release the transcript of the call, because it could implicate people beyond Flynn. But if you can’t release it, you can’t help Flynn prove he was just following orders. So you end up stuck with the risk that Sullivan will stick it to Flynn. And that could tempt Flynn to become more chatty.
    So your best option is to drop the charges. There’s one little problem, of course: he’s already pled guilty. But if you’re the admin, you have to gamble that this will be enough to make Sullivan wash his hands of the whole thing and let Flynn walk. And judging by the relative lack of attention this is getting – at a time when people are understandably worried about other things – they’re probably figuring their odds of pulling this off are good.

    • readerOfTeaLeaves says:

      And judging by the relative lack of attention this is getting – at a time when people are understandably worried about other things – they’re probably figuring their odds of pulling this off are good.

      Totally in character.

  5. oldoilfieldhand says:

    Thank you Ms Wheeler! Apparently there is reason behind the administrations seemingly random realignment/destruction of the American Department Of Justice. The Presindebt and his cohorts are busy rigging the 2020 election, seeding the Federal Judiciary with hacks, removing any non-Trump supporter from the Federal Gov’t and looting the treasury. If we look forward, not backwards, like the high-handed Obama administration did after the Bush Cheney attempt to destroy Democracy, we will be complicit in all that has happened to us, and we will have sanctioned the GOP cult overreach.

    • P J Evans says:

      I never noticed that, but they’re not common in stores. (They get turned into Maraschino cherries, though.)

      • Savage Librarian says:

        Maraschino, rhymes with Gambino and casino. All of which I had been trying to work into a little poem called Fair Shake. Yup, heh, heh. Marcy’s sundae is far better!! And all with no calories. Yum, yum yum in the tum, tum, tum.

        • Rugger9 says:

          Too early for Queen Annes. We had a great store here in Silicon Valley (CJ Olsen) that finally sold out to a developer for higher-density housing last year. I’ll miss them, but in days of yore before the defense industry and dot-com bubbles the Santa Clara Valley was one of the top fruit producers and a place for great cherries. It actually might be too warm here now, since the reset/dormancy period (a week or so in the 20-30 F range) hasn’t happened in the last 3-4 years and that is necessary for a good cherry crop.

          Hot fudge sundae…Mmmmmmm

          • P J Evans says:

            IIRC, that area was more apricots, walnuts, and almonds – not cold enough, even in the 60s, for good cherries and apples. (Apples were mostly from the hills near Watsonville.)

            • ThomasH says:

              Don’t forget about Sebastopol and the Gravenstein apple (that wasn’t the only apple grown there but it was their most famous crop).

              • P J Evans says:

                Yep – the other two big apple areas in CA are Apple Hill, east of Placerville, and there was one around Victorville (high desert).

                I miss Winesaps. Apples should have more flavor than just “sweet”.

                • ThomasH says:

                  Yes! I want an apple that grabs your palette by the collar and gives you a shake and says “taste this!” A good subacid flavor. Supposedly, the “big” apple industry, and their academic horticulturalists have been trying to develop an apple that will store well enough to ship to the huge Asian market. The Asian apple consumers prefer a less tart apple as a general rule. Those of us who favor a European/Russian apple are out of luck.

            • rip says:

              Not to forget the wonderful garlic grown around Watsonville and the Garlic Festival in Gilroy.

              Last time I came down from Yosemite and drove through Gilroy to the supermarket, the only garlic they had there was from China… I should have stopped at one of the farms on the outskirts.

          • Raven Eye says:

            The Santa Clara Valley was known as “The Valley of the Heart’s Delight” because of the climate and its agricultural output (thus “The Pruneyard”). “Until the 1960s it was the largest fruit-producing and packing region in the world, with 39 canneries.” [Wikipedia]

            I recall a film I showed (as a work-study projectionist at SJSU) was also titled that.

            • P J Evans says:

              The giant can of fruit cocktail is still there, though it’s now in a business park. (not moved – the cannery got torn down).
              There were still tomato canneries in the 60s and 70s.

    • emptywheel says:

      Had a chat with my second favorite fruit farmer about the likelihood that 25 degree temperatures overnight would have the 95% kill rate that 24 degree temperature has for peaches and cherries. He said apricots, because they bloom earlier, may have already been pollinated so might survive.

      • Eureka says:

        The cherries! Next month’s cherries were (are?) the only exciting thing I was looking forward to, and I am worried they didn’t (all/many) make the cut. Not quite as cold here, but windchills in the 20s can’t be good either. One of our trees is damaged (separate issue), but the other’s been a great little fruiter. They’d usually coincide with when we (might) get off total lockdown next month (move from ‘red’ to ‘yellow’, anyway. Whatever that means. Probably nothing chez nous). The prospect seemed so cheery!

        Everything flowering got late or oddly staggered starts here too, unseasonably cold last month, warmer prior. We’ll see…

  6. earlofhuntingdon says:

    Flynn lied about communicating with a government that the US has considered its principal adversary for over a century and got caught doing it. The Russians knew he lied. One of those made him a security risk, both made him unemployable. Flynn lied to cover up something, something more than that he jumped the gun by revising US foreign policy before he and his boss took office.

    As for jurisdictional predicate, I believe it was @delavegalaw who said that Barr was misstating the rules, in that investigative questions are legit so long as they pertain to an issue within the agency’s authority, not just within the bounds of a specific investigation.

    • Rugger9 says:

      When the inevitable prosecutions start about Hunter and McCabe (even though the charges were dropped) and Mueller and Joe Biden we will be treated to huffing and puffing about the rule of law being paramount and how we cannot have sleaze in the WH (stop laughing) from the courtier press. Trump commented that the Flynn rug-pulling was just the beginning, and I’m sure Barr has quotas for his US Atty henchmen doing “investigations”.

      So, does McCabe have the ability to claim “res judicata” because the DOJ dropped their investigation on him when DJT demands charges be filed?

      • John K says:

        I think it’s pretty obvious that Barr, the Russians, et al. will try to pull some sort of October surprise like in the last election when they played Comey right into their web. I think it’s imperative that Biden’s ad campaign address this ploy in advance and warn the American public that these people will try to mislead them, again, at the last minute.

      • earlofhuntingdon says:

        No, it’s not an argument McCabe could make. Res judicata, the thing is adjudicated or settled, applies to court decisions. Federal agencies have their own rules about what’s required to start an investigation. Rest assured, if Barr has the time, he’ll figure out how to get round them to do his master’s bidding.

  7. earlofhuntingdon says:

    But the only way to conclude, as Barr has, that Flynn’s actions…are not clear cut evidence that he was clandestinely operating as an Agent of Russia is if Trump told him to do it.

    I don’t think it’s quite fair to condemn Bill Barr because of a single slip-up, sir.

  8. jdmckay says:

    minor typo: “actively hiding it form” (should be: from).

    And… thanks for sticking with this. I listen to some FOX on the radio if its on when I’m driving, and they are past the point of just supporting Barr and his conclusion, there is open discussion now about retribution against the “Trump haters” who were behind this. It is front and center in my memory that FOX has succeeded doing this stuff, many times.

    Pretty scary stuff!!! Wondering what “October surprise” they have in store for Biden. Gore and Kerry got caught with their pants down, hope DNC/Joe is prepared this time.
    ii
    The timing smells like diversion from Trump’s “drink clorox” insanity.

    • P J Evans says:

      Rumors have it that the “October surprise” is show trial charges against Obama.

        • P J Evans says:

          I don’t think they’d enjoy the response that would get. A million people marching in DC would be just the start, and it would grow from there.

      • earlofhuntingdon says:

        I can see how a desperate and demented Trump might find that to be the ultimate FY to Obama, but it would backfire spectacularly.

        It would be one way, for example, to overcome any reluctance among people of color and progressives – indeed, anyone – to vote for Joe Biden or the Democratic ticket. If they do it before the summer convention, they might face an unstoppable draft Michelle for VP movement.

        • P J Evans says:

          When all your input is filtered through Fox and OANN, you probably don’t have a good handle on public opinion, especially with regard to your predecessor, when it’s known that you’re unbalanced about him already.

        • jdmckay says:

          but it would backfire spectacularly.

          I’ve made that assumption too many times with these guys. With 2k election, Enron, Iraq… GWB’s ratings didn’t suffer until all the damage was done. Swift Boating Kerry (note: over and over they slime Dem’s best accomplishments and convince large % of voting public they are negatives). Unending gerrymandering for (at least) 20 years, and then everything Trump has gotten away with to date.

          Big mistake to underestimate these guys.

  9. Stewart Penketh says:

    In a New Yorker Daily Comment, Jeffrey Toobin “The Flynn Dismissal: A Shot in Trump’s War on the Mueller Investigation” just acknowledged your excellent work.

  10. Jenny says:

    Thank you Marcy! Another excellent post.

    “A lie cannot live.” Martin Luther King, Jr.

    “Richard Nixon is a no good, lying bastard. He can lie out of both sides of his mouth at the same time, and if he ever caught himself telling the truth, he’d lie just to keep his hand in.”
    Harry S Truman

  11. OmAli says:

    I may have missed the answer somewhere, but do we know when we might hear from Judge Sullivan?

    • emptywheel says:

      No idea. I assume he’s going to read the filings very closely before he does anything.

  12. Sofla says:

    My recollection is that after each of the five calls Flynn had with Kislyak, Flynn was briefing the transition national security team (at that holiday time, gathered in Mar-a-Lago). Briefing them on what had been said, and what to say next.

    How widely among them he consulted is an interesting question. KT McFarland was there, and iirc, so were other national security transition team members Devin Nunes, Trey Gowdy, and maybe Richard Burr.

    The NY Times reported KT McFarland’s e-mail about the new Obama sanctions on December 29 this way (note the wide distribution by Bossert).

    https://www.nytimes.com/2017/12/02/us/russia-mcfarland-flynn-trump-emails.html

    Headline: Emails Dispute White House Claims That Flynn Acted Independently on Russia

    Summary graph: “But emails among top transition officials, provided or described to The New York Times, suggest that Mr. Flynn was far from a rogue actor. In fact, the emails, coupled with interviews and court documents filed on Friday, showed that Mr. Flynn was in close touch with other senior members of the Trump transition team both before and after he spoke with the Russian ambassador, Sergey I. Kislyak, about American sanctions against Russia.” and…

    “Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

    Mr. Obama, she wrote, was trying to “box Trump in diplomatically with Russia,” which could limit his options with other countries, including Iran and Syria. “Russia is key that unlocks door,” she wrote.

    She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

    “If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

    Mr. Bossert replied by urging all the top advisers to “defend election legitimacy now.”

  13. esme says:

    apologies if this is a naive question, I try to keep up with everything and am very grateful for everyone’s dedication to the facts and explaining them to citizens. but why wouldn’t Flynn/Trump/Barr now just say, “yeah sure, Trump told Flynn to go ahead with the no harm-no foul call to Russia…nothing to see here, move along” ? (also, as an infrequent poser I haven’t kept up with my name here – lmk if I’m consistent, tx)

    • The Old Redneck says:

      Trump has said until he’s blue in the face that he knew nothing about coordination and cooperation with Russia. He’s equally committed himself to the line that the entire investigation was a hoax. I’m interested in what others think, but my guess is that it’s much easier to give Flynn a get-out-of-jail-free card than risk eventual disclosure of Trump’s role in this.

      • readerOfTeaLeaves says:

        Trump is very much about political kayfabe.

        Those of us who avoid wrestling and Fox are constantly blindsided, and miss a lot of what he is communicating via the older, reptilian part of his brain. (We all have one, but his is sui generis.

        It’s very much about ‘takedowns’, ‘takeouts’, and deception. It’s about predation and dominance. Roger Stone was a fan, and Jesse Ventura first illuminated the potential for it’s political success in the US. (Misha Glenny, in “McMafia”, explains how the mob infiltrated World Pro Wrestling after the fall of the Soviet empire, which inadvertently lends support to the notion of a subgroup who view politics as legalized looting, where rules are ‘things to be negotiated and manipulated’). Zero social responsibility. No social conscience; no social compact.

        And it’s not only in the US: a New Yorker profile on Putin opened with Putin attending a ‘no-rules, no-holds-barred’ competition (at which one of the contestants had his leg broken, and how anyone could witness the ensuing gore is nauseating).

        Kayfabe is spectacle: it feeds straight into grievance, into grudge matches, into belligerence, into a kind of sanctification of breaking rules, laughing at rules, demeaning rules/laws.

        A very interesting book, “The Method to the Madness” (Salkin, Short: 2019) “https://us.macmillan.com/books/9781250202802 explains how Trump, with the assistance of Roger Stone, et al, planned **for years** to win the presidency. If you read this book and consider the implications, what you suggest about the upcoming election is not simply ‘tin foil hat’ territory; it’s almost inevitable.

        Despite that, we are unclear about Trump’s health (he looks ghastly these days), and Pence is not a plausible replacement for Trump’s uniquely belligerent, ‘pseudo billionaire’ persona.

        • P J Evans says:

          Peaking of kayfabe and “no responsibility”:
          Elon Musk is threatening to sue Alameda county and move the Tesla factory, because the county’s shelter-in-place order keeps him from reopening the plant. Apparently the idea that it’s to keep his workers from getting sick and maybe dying hasn’t sunk in. (He has a rep for treating them poorly already: safety violations in particular.)
          https://www.sfgate.com/news/editorspicks/article/Elon-Musk-Tesla-coronavirus-Fremont-shelter-place-15258908.php

          • Vicks says:

            Musk is an *ss-hole but IMHO his business model for Tesla makes him much better positioned than any of the others in the auto industry to keep sales coming and people employed.
            Because Tesla doesn’t depend on independently owned dealership for sales and distribution and has a substantial amount of internal control over parts Tesla has a much better chance of being able to fulfill whatever demand is out there.
            If he is paying taxes, and commits to taking care of his employees there should at least be a conversation.
            I just wish I was making the argument for a decent human being…

            • bmaz says:

              The business model loosely patterned after Ponzi schemes where Tesla funds current unit production by “pre-selling” future units? That “business model”?

              • Vicks says:

                “Ponzi scheme” seems a little dramatic no?
                It is my understanding Tesla requires a deposit of 10% to place an order.
                The last time I bought furniture they wanted a 50% deposit to initiate my order.
                In the legal world, I believe they call the money used to to “fund current production” a retainer.

                • bmaz says:

                  No. The “furniture” “deposit” you supply is to build “your” furniture. That is not what was previously described as to Tesla.

                  • Vicks says:

                    I’m not sure I follow.
                    Deposits are considered a liability on a balance sheet.
                    How Tesla classifying the money it is getting from pre-sales?

                    • bmaz says:

                      I am not sure what is so hard to follow. No other car manufacturer builds long ago promised units using future promises and money it cannot meet without yet more future promises. You find one other than Musk who does this. And who has no dealer and parts network.

                      If GM or Ford pulled this, it would be a world scandal. But, hey, Musk is a fucking genius, right? So was Madoff before he wasn’t. By the way, you know why Tesla is sold only online and through some shopping mall kiosks? Because every other auto manufacturer is required to have sanctioned dealerships, parts supply chains and service networks. You are buying off on complete bullshit.

            • P J Evans says:

              People can’t get their Teslas repaired because all the parts go to new ones. Some have had use of their cars for like two weeks out of a year or more. That’s not good business practice – and neither is him having tantrums when he doesn’t get his way.

        • Vicks says:

          I think you may be overestimating Trump’s intellect?
          I’m sure he has some cognitive decline, as we all do but I don’t think he was ever able to process anything but the simplest of concepts.
          I imagine him being the kid with limited interests because of a “Lazy” brain who would interrupt a conversation he considered boring by telling a dirty joke or grabbing someone and giving them a noogie.
          His press briefings on the virus were a similar example. Trump’s knowledge of how a virus works seems to be at the level of what would be written in the National Inquirer rather than the cumulation of the experts he has working on this,
          I think he is quite visual in that “understanding” to Trump means he is able to use information to form a picture in his brain, he got pretty excited about lights and Lysol because he “got it” while it’s too much work to keep remembering the boring details of any real solutions that has been explained to him
          Trump’s need to visualized in order to understand something may also explain why they say you want to be the last person Trump speaks to, if there is anything of what you said Trump found interesting he will piece it together in a way he can repeat, while prior conversations and briefings that didn’t leave a emotional mark are forever lost in the jumble.

          • readerOfTeaLeaves says:

            I missed my calling as an Ed. Psych, but after working with kids who had FAS [Fetal Alcohol Syndrome], and exhibited a very specific range of learning and behavioral ‘disabilities’, I became avidly interested in the brain.

            I agree that Trump is not all that smart. But we need to define what we mean by ‘smart’, and it turns out that there are different kinds of smarts.

            The question then becomes what kinds of smarts does Trump exhibit? How would he behave if he still believes that he can hide his activity as an asset for foreign interests?

            Trump often reminds me of some of my former FAS students: predatory, incapable of nuance, suspicious, dishonest, distrustful, emotionally dis-regulated (to put it politely), and *constantly* bullying. Being ‘tough’ meant dominating others (lying, stealing, cheating, humiliating, and much, much worse). If they could drive terror into the heart of anyone, they’d gloat and double-down. Violence was their default mode.

            Watching Trump brings back a lot of memories, few of them pleasant.

            He knows that he needs Bill Barr, because the reptilian brain is well acquainted with fear. He needs Barr to take his fear factor down a notch.

            Barr may be able to fool the frothy right into believing that the Flynn business is about the Logan Act, rather than about intelligence, (which I take to be EW’s point). But that only tanks Barr’s credibility with anyone else who pays attention. Why?

            Why would Bill Barr protect Donald Trump? Why not just cut Trump loose? He’s babbling about Clorox at this point, so why protect him — or the secrets that Trump is also hiding?

            But the only way to conclude, as Barr has, that Flynn’s actions — calling up the Russian Ambassador and telling him not to worry about the sanctions imposed for helping Trump get elected — are not clear cut evidence that he was clandestinely operating as an Agent of Russia is if Trump told him to do it.

            Who wants to continue the charade that Trump is innocent? It simply continues to enrage the millions who see Barr’s conduct as utterly depraved, and it doesn’t actually spare Trump the humiliation of being exposed as a tool of foreign interests.

            The whole thing just gets more and more bizarre until I recall my former FAS kids. They often lived in terror, and they would have done exactly what Trump (and Barr) are doing now: deny, obfuscate, make up bullshit. The timing still baffles, but the emotional logic is quite sound. They’re desperate.

            • P J Evans says:

              What I’ve read is that Trmp is cunning, not intelligent. He knows how to push buttons on people who are willing to listen. (Remember he said that he likes people who are stupid. They’re his targets.)

              • readerOfTeaLeaves says:

                Emphatically agree.
                A crocodile (reptile brain) is also cunning.

                How on earth the GOP can’t see him more realistically is baffling, unless they share similar authoritarian childhoods. Takers, not makers.

  14. Franktoo says:

    Has Judge Sullivan accepted the DoJ’s motion to withdraw Flynn’s guilty plea?

    Do I remember correctly that the FBI agents who interviewed Flynn had “refreshed” Flynn’s memory after each lie by using some of the same phrases Flynn was recorded as using with Kislyak? And after having his memory “refreshed”, Flynn repeated his lies? If so, shouldn’t it have been clear that the interview wasn’t conducted with the goal of entrapping Flynn – even though the FBI may have considered whether this would have been an appropriate goal for the interview? I’m surprised the subject of “refreshing” hasn’t been raised since Flynn made a motion to withdraw his guilty plea, but perhaps my memory is faulty.

    Of course, given Russian success at cultivating and possibly compromising Flynn, IMO the FBI Counter-intelligence Division would have been prudent adopt any legal tactic to prevent him from becoming or remaining National Security Advisor. Holding high office is a privilege, not a right. It wasn’t appropriate to wrongly convict Flynn of a crime, but that conviction and cooperation agreement made Flynn a credible witness for Mueller’s conclusion that there was no coordination between the Trump campaign and Russian interference in our election.

    Where in the code of law does it say that that lying to law enforcement isn’t a crime if you can later prove you shouldn’t have been questioned?

    • Rugger9 says:

      18 USC 1001 does not make that distinction. Martha Stewart found that out even though her insider trading case was iffy, she went to federal prison for lying to the investigator.

      Nice try at muddying the water here, Franktoo.

    • Rugger9 says:

      From Wiki, which proves Franktoo is a bit of a concern troll here:

      The statute spells out this purpose in subsection 18 U.S.C. § 1001(a), which states:

      (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

      (1) falsifies, conceals, or covers up by any trick, scheme, or device[ , ] a material fact;
      (2) makes any materially false, fictitious, or fraudulent statement or representation; or
      (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry
      shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both….

      Even constitutionally explicit Fifth Amendment rights do not exonerate affirmative false statements. In the 1998 case Brogan v. United States, the Supreme Court rejected the “exculpatory no” doctrine that had previously been followed by seven of the courts of appeal, which had held that “the mere denial of wrongdoing” did not fall within the scope of § 1001. The Brogan court stated:

      Our legal system provides methods for challenging the Government’s right to ask questions—lying is not one of them.

      • Franktoo says:

        Franktoo asked: “Where in the code of law does it say that that lying to law enforcement isn’t a crime if you can later prove you shouldn’t have been questioned?”

        I assumed that the answer was “Nowhere!” and my question would be perceived as rhetorical. However, if there were a precedent where lying was excused because the liar was questioned without justification, I think readers of this blog would want to know. When EW carefully quotes large passages from what both sides are saying and provides links to complete documents, I assume that EW wants readers to know all of the facts – which is what I’m here to learn.

        Some people interpret Priestap’s notes as evidence that the FBI came to trick Flynn into lying. If my fading memory were correct and the FBI had “refreshed” Flynn’s memory by quoting Flynn’s own words with Kislyak, that would be evidence that the agents came with instructions find out the truth, not to trap Flynn into lying. Since no one else seems to remember the technique of “refreshing” a witness’s memory being used with Flynn, I suspect it came up in some other investigation.

        FWIW, there are lots of trolls on blogs, but I don’t intentionally try to anger others. I’m usually trying to learn what to believe and not to believe. I’m sorry if anyone was offended.

        Respectfully, Frank

  15. jaango says:

    Again, my Congrats to Marcy for her traditional emphasis on her hard work, keeping up with these criminals.

    As to my rant, I remain hopeful that Judge Sullivan sends the General to the appropriated “barred” location and for a large number of years.

    Of course, I am reminded that once Arizona’s Sheriff Arpaio was ‘convicted by a federal judge, Trump went on to pardon him. And shortly thereafter, Arpaio ran for public office, raised a large stash of cash, and used the accrued monies to pay for his ever-mounting legal bills. Of course, all’s well that ends well for my home state, Arizona’s voters.

  16. Stacey says:

    I think the best way to listen/know/see what is really happening in Trump World is to put his own words through the prism of his normal MO for dealing with things he gets caught doing. 1) I didn’t do it, 2) If I did do it, it wasn’t wrong, 3) Of course, I did it, and you ought to thank me for doing it!

    Remember when Trump said in answer to a question at the time about Flynn, demonstrating he was solidly in step 2 and rounding the corner into step 3: (paraphrasing) If Flynn weren’t talking to the Russians and telling them this, I’d have asked him to.

    OF COURSE he knew and told Flynn to do this. It’s always been the only thing that makes sense. Trump has never had any other basis upon which to protect Flynn than his own fanny was in the same ring of fire as Flynn’s. He NEVER protects ANYONE for any other reason! Who thinks Trump could have formulated the notion that Flynn was doing something potentially wrong unless someone told Trump that it was when he suggested it? Probably Flynn himself, since he had the back ground to know it was wrong and Trump still hasn’t figured out the basics of law or ethics in any arena, let alone international relations and spy craft!

    Trump told Flynn to do this, Flynn said, ‘ok, boss, but you need to know that that’s illegal’ and Trump told Flynn to not get caught. Don’t we all know that conversation has happened 100 times a week in the oval office since Jan 20, 2017?

    • subtropolis says:

      I’m convinced that Trump knew all about Flynn’s calls. Perhaps he was in the room for some of them. As you point out, Trump’s defense of Flynn has been very suspicious.

  17. Zinsky says:

    William Barr is a bloated, lawless disgrace to the legal profession as well as habitual liar and a flat-out stooge for a lifelong criminal. Future historians will look back on his second turn as the U.S. Attorney General and wonder (1) why he came out of a comfortable retirement to shill for the most corrupt president in American history, and (2) why Americans didn’t rise up en masse and drag this horrible man out on the lawn of the White House and publicly flog him!

  18. earlofhuntingdon says:

    Curious and curiouser. Because no other attorney appeared to have been willing to sign this pleading, Shea did it himself. But he’s not admitted in DC, so his signature alone would not be sufficient. He fudged the issue by using his predecessor’s bar number. Trial attorneys know their bar numbers, they use them with every filing. So, was this a false statement or excusable error? It’s something Judge Sullivan might want to him about, as well as how he’s going to fix it

    https://twitter.com/Delavegalaw/status/1259263628240392194

  19. pseudonymous in nc says:

    Yep. And in many ways this cements the tacit argument — not just from the frothies, but from Barr — that the Obama administration lost its executive authority over foreign and national security policy the day after the election.

    The transition was declared off-limits in one of many bullshit claims of privilege. Mueller only got access to transition emails because the GSA head was terminally ill and the acting chief granted access to the server. The transition was when the intel assessment on Russia was produced. In parallel, the transition was when Buzzfeed got hold of the Steele memos.

    And that’s why I think Brian Beutler’s right to think that Barr and Durham will make a splash towards November about how Obama and Biden were somehow abusing their no-longer-legit executive power in Dec-Jan to expel and wiretap Russian diplomats. There’ll be a hunt for whoever told Ignatius about the transcripts.

    That’s to say, Flynn has to be a hero-martyr in order for Biden to be declared his persecutor during the transition where Obama was no longer a legitimate president. That may only have purchase with the frothies and the three-stars-in-your-screen-name crowd. But Eli Lake’s thirsty desire to be thanked and praised for winning the lottery when Billy Barr told him the numbers in advance tells you that the frothies are ready for it.

  20. Ethan Reich says:

    Conservative mediasphere logic along with greenwald types and Barr seems to be

    Becuse mueller Didn’t indict a criminal conspiracy between the campaign and Russia that all the charges they did bring aren”t legitamite and there was no reason to investigate becuse there was no collusion even tho the only way to know that was to investigate lol and that the people who did investigate should be charged.

Comments are closed.