Bill Barr Did Not Provide the Most Important Exhibit to His Mike Flynn Dismissal Motion: The Call Transcripts

There’s a giant hole in Bill Barr’s motion to dismiss the Mike Flynn prosecution: the call transcripts of the General’s calls with Sergey Kislyak.

The Timothy Shea-signed motion claimed that the transcripts showed “arms-length communications” which provided no suggestion that Flynn might be “directed and controlled” by Russia.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2. They provided no factual basis for positing that Mr. Flynn had violated FARA. Nor did the calls remotely transform Mr. Flynn into a “viable candidate as part of the larger … umbrella case” into Russian interference in the 2016 presidential election. Ex. 1 at 3.

Significantly, Shea doesn’t cite the transcripts here! He cites the Electronic Communication opening the investigation against Flynn and the draft EC closing the Flynn case written 20 days before the Flynn interview. Moreover, he mis-cites the opening EC so as to suggest (as he does elsewhere in the memo), falsely, that Flynn was only being investigated under FARA, which usually has a public component, and not 18 USC 951, which more often does not.

This, then, is an assertion for which Barr provides no evidentiary backup.

Barr makes the assertion in a filing that includes several pieces of evidence that directly conflict with this judgment.

As I’ve noted, Mary McCord thought the idea of a call between the incoming National Security Advisor and the Russian Ambassador was “logical” until she reviewed the transcripts of the calls. “After reading them, she felt they were ‘worse’ than she initially thought,” in part because, “Flynn proactively raised the issue of sanctions.”

The Sally Yates 302 seems to suggest that as soon as Andrew McCabe read the transcripts it was clear Flynn was lying because he didn’t really engage in the conversation until sanctions came up (a view that is entirely consistent with McCord’s view, though Barr did not provide McCabe’s 302 for us to compare more directly).

This passage may also suggest that Peter Strzok and Joe Pientka did not read the full transcripts of the calls before the interview, which would explain why they might have relied on whether Flynn gave indications he was lying. If that’s true, it would also undermine other key claims made in this motion, most notably that the agents knew everything the transcripts said.

As for Yates herself, she provided Don McGahn several reasons why she believed these transcripts were troubling. Part of that description, as well as two of the examples she provided to substantiate the description, are redacted.

But Yates is specific: the “back and forth” between Kislyak and Flynn was contrary to the descriptions Flynn had offered publicly about the calls. Importantly, Yates’ description rebuts the Shea motion’s claim that this was an “arms-length” conversation.

Which is to say, in a key passage dismissing the possibility that the call transcripts included evidence that Flynn might have a relationship with Russia that could damage national security, the motion provides no evidence and in fact mis-cites something inapt as proof. But elsewhere, the filing does provide evidence about the call transcripts, and that evidence directly refutes the claim. Moreover, the filing redacts a number of other passages that go directly to the claim.

Importantly, whether or not the transcripts showed some reason to think Flynn’s relationship with Russia might affect national security is not an issue that Barr can invoke exclusive Executive judgment on, something on which judges generally defer to the Executive. The record shows that two Acting Attorneys General — one (Rod Rosenstein) appointed by Trump — already deemed the transcripts to include such evidence. Here, Barr isn’t even on the record making the claim. Just an Acting US Attorney who has not been Senate confirmed is.

A year ago, Judge Emmet Sullivan ordered the government to provide the transcripts of the calls between Flynn and Kislyak.

The government is hereby ORDERED to file on the public docket in this case the transcript of the “voicemail recording” referenced in the 75 Addendum to Government’s Memorandum in Aid of Sentencing and the transcripts of any other audio recordings of Mr. Flynn, including, but not limited to, audio recordings of Mr. Flynn’s conversations with Russian officials, by no later than May 31, 2019.

In response, the government obliquely said no, because they were not relying on those recordings for sentencing, effectively pointing out that no claims entered into evidence had relied on the transcripts (by the time Flynn pled guilty, he himself had provided evidence that he lied, and so they didn’t need to rely on the transcripts).

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

Now, however, the transcripts are utterly central to the claims the government is making. Indeed, the only evidence about the transcripts submitted with this motion rebuts the government’s claim.

Emmet Sullivan would be totally within his authority to require the government to provide the actual evidence on which they make at this point unsubstantiated claims in this filing.

Mike Flynn has been demanding these transcripts for quite some time. Given the declassification spree that Barr and Ric Grenell have been on, I would imagine they would have been made public if they helped Flynn at all. So I’m guessing Yates and McCord provided a more accurate description of these transcripts than Timothy Shea.

53 replies
  1. madwand says:

    I’m, like most here, in favor of making the government show their cards. I understand what I am asking and that is for a judge to have the moral courage to challenge the power quotient implicit in Barr’s withdrawal from the case. That’s a big ask, however if the government is going to base its decision on transcripts previously not provided, then provide them, make the government honest or expose their duplicity. Call the hand it’s the only way, make them show their cards.

  2. OldTulsaDude says:

    It would not be a surprised if Judge Sullivan ordered the call transcripts to be turned over; at which point no doubt Barr would simply say no.

    Then what?

    • Peterr says:

      Then Sullivan declines to accept the government’s move to dismiss the case with prejudice, and moves once more toward sentencing.

      It wouldn’t end there, of course, but if the government won’t show the evidence they claim is central to their decision to ask to dismiss the charges, the judge is free to ignore what they say about it.

      • earlofhuntingdon says:

        Exactly. It also adds to the time and complexity involved in resolving this issue through appeals to the DC Circuit (panel and full bench) and the Supremes. WH counsel have probably already drafted the pardon.

        • Ken Scott/Sundog says:

          If the pResident pardons him, can’t he be made to reveal everything he knows or be sent to prison for perjury?

    • Greg WorleyNever says:

      Never really practiced in federal court, certainly not at this level. Spent a lot of time in state court on criminal cases, and I have seen judges require DAs or state AG to appear and explain themselves in analogous situations. Could Sullivan order Barr to appear under oath and explain the discrepancies?

      • bmaz says:

        Theoretically, yes. But he, DOJ and Trump would assert privilege until the next of never, so it is not so easy.

  3. Rugger9 says:

    Is it possible that Judge Walton has these as well as part of the Mueller files he is reviewing?

    • emptywheel says:

      He does not.

      As I’ll write later, he is reviewing one line of the Mueller Report that he otherwise wouldn’t declassify but might now.

      • Rugger9 says:

        Too bad, but then again the trouble with slime is that it oozes. Perhaps an unauthorized copy will surface like the CDC guidance did. One can hope.

  4. DaveC says:

    As usual Marcy, great stuff. I agree/ to me, the Shea/ Barr motion to dismiss requires getting the transcript into the Court record.

    I expect you saw Mary McCord’s NYT piece, “Bill Barr Twisted My Words in Dropping the Flynn Case. Here’s the Truth.” I agree with her that once the the FBI became aware of the (reported) conflict between the Flynn – Kislyak transcripts & Flynn’s & Spence’s public statements, DoJ should have informed the Whitehouse of Flynn’s self created jeopardy. Of course that is more difficult before the the inauguration, and it can’t excuse material lying to the FBI in a national security investigation. It seems highly likely that there is something in the transcripts which is potentially harmful to Trump or others in the Administration.

    One other thing I am still uncertain about is the basis of the monitoring of the Flynn – Kislyak calls. Is that public? Is it because the US would always monitor the calls of every Russian Ambassador whenever possible? Or is it that there was call monitoring directed at Flynn? Or some other explanation?

    (Going over to Patreon right to know to support your excellent reporting and analysis)

    • SteveL says:

      From memory, previous reporting was that the US was monitoring the Russian ambassador’s calls. Flynn just happened to get caught up in this by calling Kislyak. There has been no suggestion that Flynn himself was the target of surveillance.

  5. MattyG says:

    So does this put the DOJ in a bind or can they keep punting on the transcripts and still drop the Flynn case all at the same time? Sullivan doesn’t have to accept the motion to dismiss if there are issues with how it the dismissal is structured correct?

  6. BG Pelaire says:

    This reminds me of Bush II’s claims on WMD in Iraq. Twisting bits of “evidence” to conform to an agenda and failing to cite or use source material. I assume if one looked closely at Barr’s actions in getting the Iran-Contra crew off the hook, it would look much the same.

  7. pseudonymous in nc says:

    The record was already clear, but now it’s clearer still: everyone* who read the transcripts at the time thought there was a problem with what Flynn was doing, regardless of whether they were outgoing, incoming or staying on, and that the full substance was closely held. I mean, even Flynn thought it was a problem to share the entirety of his conversation with senior incoming WH officials*.

    It’s been accelerating revisionist history ever since Barr and Sidney Powell took control of the case.

    * aside from the president, of course

    • Rayne says:

      The revisionism is gaslighting at scale. We’re being treated like abused partners; Flynn admitted wrongdoing, evidence showed him doing wrong, and yet now we’re not supposed to believe Flynn is anything but a misunderstood man of honor who won’t do it again, oops, didn’t do it.

      • Savage Librarian says:

        Very well said. This is exactly what is happening. Love your funny turn of phrase for past tense at the end, too!

        All those Republican senators should have paid more respect and attention to the mental health professionals prior to the impeachment vote. It might have saved their jobs. And it certainly would have saved lives. What morons!

      • MB says:

        I will forever have the image of Flynn burned into my brain as the guy who led the “lock her up” chants at 2016 rallies. Do they really need him to lead “lock him up” chants in 2020? And…if he gets “rehired”, will he get a new security clearance issued? The zeal for revisionist history knows no bounds apparently.

  8. biff murphy says:

    “Donald Trump’s former national security adviser, Michael Flynn, is under investigation for involvement in an alleged plot to kidnap a Turkish dissident cleric living in the US and fly him to an island prison in Turkey in return for $15m”
    This is two years old but…

    Whatever happened to these allegations? Anybody?
    Supposedly Mueller had info on this and was dropping the charges on Flynn’s son for his cooperation.
    “Flynn Intel Group”
    Now there’s an oxymoron for you!

  9. CapeCodFisher says:

    Marcy needs to get hired at the DOJ.

    On a side note, the Wall Street Journal ran an article today supporting Barr’s position. Of course it was filled with errors that these emptywheel pages have consistently pointed out. That’s bad enough, but the really damaging aspect of WSJ is that there was absolutely no comment section that I could see where anyone reasonable could respond to the reporters errors… Nefarious AF…

    How are Americans supposed to derive the truth when these institutions are promoting falsehoods and then don’t allow commentary? I thought this was the people’s country? WTF

    • geoguy says:

      Was that article in the editorial section? I don’t know if comments are taken in that section. The WSJ is now owned by Dow Jones & Company, a division of News Corp. The news can be ok. The editorials can be headed off the rails and comments are usually a total train wreck.

      • CapeCodFisher says:

        The article was called “Barack Obama on Michael Flynn” byline was “The editorial board”. Crazy story. They went so far as to complain that obama referred to Flynn’s lie as perjury, which they claim is not technically correct and that he “misstated the crime”. I know comment boards get nutty, but at least people have a chance to correct the record. Nope, none of that corrections biz for the WSJ… they’d rather let the falsehoods stand apparently. Rather poor publication I would say.

  10. Terrapin says:

    Not to excuse Billy Barr, but aren’t the call transcripts highly classified? While their existence is an open secret these are still highly classified documents, probably at the code-word level. The federal government, even under Donald Trump, isn’t going to acknowledge their existence. Or at least not provide the raw transcripts.

    • Rugger9 says:

      Judge Sullivan asked for them for in camera review only to be told at the time that the Government did not need them to make its case (it was covered earlier, IIRC in another thread) and he is allowed to have them as is the HPSCI and SSCI.

      It’s stonewalling by classification.

  11. earlofhuntingdon says:

    Faux Noise is full of Reopeners who say, “Reopen the churches! We need Christ now!” The question, of course is WWJD? Would he say, stop protecting yourselves against the Roman occupiers and their legions, openly challenge them with pottery shards and harsh language, and lay down your lives to no effect? No Jesus I know would argue that, or any religious leader worthy of the name.

    The Jews realized two thousand years ago that God does not reside in a place. Their once-vaunted Temple razed by Romans, the scattered Jews found their God anywhere people gathered in Her name. As I watch supposed Christians stump for Trump, I’m beginning to agree with Rowan Atkinson and his Toby the Devil: Welcoming a new intake of sinners to Hell, he divides them into groups – murderers, looters, thieves, lawyers, adulterers and the rest, and finally, Christians: “Ah, yes, I’m sorry, I’m afraid the Jews were right.”

    • P J Evans says:

      I think the Jews and the Muslims are both right in not allowing images of the deity. (The one in the Ark was probably a stone like that in the Kaaba.)

      • Michael says:

        Nahhh, too much great art and architecture includes images of those people. By those people I mean the Big Three plus Mary, basically the Catholic god or godlike bunch. Based on nothing I think the whole three or four part Christian (well, for a lot of them) deity thing was because Romans were missing their pantheon.

    • Tom says:

      Lincoln’s Secretary of the Treasury, Salmon P. Chase, once said: “The law catches the small rogues; the big rascals are too wary to approach the net. I think sometimes our criminals are not in the penitentiary but in the churches.”

      • Sandy says:

        That fits. I heard, maybe in The Family documentary on Netflix, that Barr is an Opus Dei Catholic and is/was on the Bd of Directors of DC branch.

  12. harpie says:

    On May 7,
    1] Barr’s DOJ filed this motion to dismiss the Flynn prosecution, and
    2] the House Intelligence Committee released transcripts of interviews done for the House Russia Investigation.

    Here’s the announcement for 2]:
    After Being Delayed by White House for Almost a Year, Transcripts from House Intelligence Committee Russia Investigation Released
    Washington, May 7, 2020

    1] Transcripts Reaffirm Mueller’s Findings That Russia Interfered to Hurt Clinton and Help Trump,
    2] the Campaign Invited and Made Full Use of Illicit Russian Help, and
    3] Trump Lied to Cover It Up
    4] White House Would Not Allow Release of All Transcripts for More Than a Year By Holding Up Declassification Process Until this Week […]

    This does NOT feel like a coincidence.

    • harpie says:

      Schiff to Grennell:

      “[…] So that the record is clear, the excessive delay in ODNI’s completion of the classification review is the direct result of improper political interference by the White House.

      For over a year, the White House held up the release of the transcripts by insisting on reviewing 11 transcripts for purported White House “equities.” This separate review was sought despite the fact that President Trump did not seek to assert executive or any other privilege during the Committee’s investigation.

      But for the White House’s improper interference, ODNI would have been able to complete the classification review of – and the Committee would have been able to release – the transcripts over a year ago.

      Indeed, the White House’s recent decision to abandon its demand – without, as you have represented, reviewing the transcripts – is clear evidence of the political gamesmanship in which the White House is engaged. […]”

      • harpie says:

        6:21 PM · May 11, 2020

        BREAKING: Ric Grenell to release list of people who find it suspicious when someone secretly calls the country that attacked us and says no harm no foul. [Yahoo]

        Sally Yates is probably on this list. Trump attacked her yesterday on twitter.

        From the 12/2017 Intelligence Committee interview linked above:

        MR. CONAWAY: What I got you from you was that there were a lot of people involved in these conversations back and forth. And how would they have known General Flynn’s name, or was General Flynn’s name specifically a part of that? However extensive the concern was, was it about specifically Flynn or just a U.S. General One?

        MS. YATES: No. First of all, there wasn’t a large number of people involved in these discussions. lt would be, you know, a few people in the National Security Division, you know, a few people at FBl, my office. lt wasn’t like this was something that was broadly discussed –

        MR. CONAWAY: Okay.

        MS. YATES: – even within the National Security –

        MR. CONAWAY: But all of those folks would have known General Flynn’s name?

        MS. YATES: Right. I mean, when – l will tell you when this – and I know that this has been a matter of much debate. When this information was provided to me, nobody was ever asking for his name to be unmasked.

        It was provided with the name in it.

        And I think that’s because to understand the import of this discussion, you would need to know who the Russian Ambassador was talking to about this. If it was some guy off the [p62] street, it wouldn’t have had the same level of import as it being the Russian Ambassador – I mean, excuse me, as it being Mr. Flynn.
        MR. CONAWAY: Okay [4-line redaction] [Discussion off the record]


    • harpie says:

      I’ve been reading through the transcript of the 11/3/17 Sally Yates interview:

      The most redacted material is from conversations between Yates and Schiff [and to a lesser] degree, Heck…both Democrats.

      The biggest red area begins on page 58:
      – – 21 lines plus 1 whole page of Yates speaking and
      – – 5 lines of Schiff speaking.

      They were discussing the January 5 and 6, 2017 meetings with McGahn/Eisenberg.

      YATES: […] So told Mr. McGahn needed to meet with him. Mary and I went over. We met with Mr. McGahn in his office, which is also a SCIF, so we could discuss classified information there. He had a member of his office, from the White House Counsel’s Office that I’m embarrassed I don’t remember his name, [Eisenberg] but a member from the White House Counsel’s Office there.

      And I told him .- you know, we started the discussion by telling him that there had been these various representations that had been made publicly by the Vice President and by other members of the administration about the subject matter of the phone calls with the Russian Ambassador, and that that wasn’t true and how we knew it wasn’t true – […]

      MS. YATES: Five minutes? OK. I’ll speed it up. [The redactions begin here]

      [My estimate of the number of lines is not exact, but it’s close and I tried to be consistent.]

    • harpie says:


      [I was wondering when BIDEN‘s name would show up…]

      Senate Republicans break with Trump over ‘Obamagate’
      Trump accused the former president of committing the “biggest political crime in American history.”
      05/11/2020 07:55 PM Updated: 05/12/2020 06:15 AM
      President Donald Trump’s aggressive campaign to encourage sweeping investigations of his predecessor Barack Obama met a unanimous response from Senate Republicans: No thanks. […]
      they [will] conduct their own investigations that could soon ensnare other senior Obama administration officials. […]

      Those ex-officials include former FBI Director James Comey and former acting Attorney General Sally Yates. […]

      Trump allies have honed in, in particular, on a Jan. 5, 2017 meeting of the outgoing Obama national security team during which the Russia investigation was a topic. Obama attended the meeting, along with then-Vice President Joe Biden and other senior intelligence and Justice Department officials. […]

      “I’m suggesting that any details that we can get on that Jan. 5 meeting ought to be pursued,” Grassley said in a brief interview. “But it’s pretty clear that Obama had his fingers in this. And it’s kind of like, you don’t need to know much more, but just the fact that it’s public, that this came from the highest levels of the previous administration to give Flynn all of his trouble. And the Flynn problems were part of an effort that — the Democrats actually thought that they could cut short this presidency by probably 3½ years.” […]

      • P J Evans says:

        Another damned election year witch hunt. I hope all the Rs backing this stuff get voted out. Or forced to retire for not doing their sworn duty.

  13. CD54 says:

    What consideration might Judge Sullivan give to Judge Walton’s on the record rejection of Barr’s credibility?

  14. timbo says:

    This. You’d think that Sullivan would be interested in all the communications swirling around this “legal controversy” at the very least by now… his anger at Flynn early on seemed to presage all this in some way. Or maybe he’s already seen enough of the record as it stands to be justified in his anger at Flynn? In any case, let’s hope that he doesn’t fold up under the “new information!” out that Barr and his Twitler flunkies are promulgating upon the court here.

  15. skua says:

    The BBC news website has misled by publishing,
    “The Justice Department’s surprising decision to drop all charges against Donald Trump’s former national security adviser has set off a cascade of accusations and counter-accusations. …

    After years of legal wrangling, however, the former three-star general is now a free man.”

    Is the reporter involved, Anthony Zurcher, known to emptywheelers?

  16. Jenny says:

    Thanks Marcy. Insightful post.
    Agree with your guess about “Yates and McCord provided a more accurate description of these transcripts than Timothy Shea.”

  17. harpie says:

    We are going to need to talk about what’s happening at the
    US POSTAL SERVICE, especially as it relates to mail-in VOTING

    11:33 AM · May 6, 2020

    The sudden departure of David Williams from @usps leadership is an ominous storm cloud over the head of our postal service. Congress needs to investigate the circumstances and keep guarding against trump’s attempts to decapitate the post office. [Prospect]

    10:26 PM · May 6, 2020

    Was waiting for this to drop — Trump got his quorum on the USPS Board of Governors last year (governors pick the PG) & the PG since 2015 (first woman in role) announced she would resign in January 2020.

    2a] [twitter dot com] jdawsey1/status/1258176318635741185
    7:26 PM · May 6, 2020

    SCOOP: Major Trump & RNC donor Louis DeJoy is becoming postmaster general of the United States, putting a top ally of Trump in charge of an agency he has long criticized. DeJoy is currently lead fundraiser for RNC convention. [WaPo]

    2b] [twitter dot com] marceelias/status/1258508945020182528
    5:28 PM · May 7, 2020

    BREAKING @RNC says it is doubling its budget to oppose voting rights in court to $20,000,000.

    Republican spox: RNC is prepared to sue Democrats “into oblivion and spend whatever is necessary.” [Politico]

    3] [twitter dot com] ddayen/status/1260255773289902080
    1:09 PM · May 12, 2020

    I was just informed that Ronald Stroman, the deputy postmaster general, resigned yesterday. The new PMG will get his pick of a deputy, but sources indicate that Stroman was forced out.

    • P J Evans says:

      Is the RNC prepared to lose much of its base, which is in low-density areas that depend on the USPS for everything?

      (I’ll believe that much of Congress may not be familiar with what the USPS does and charges, since they don’t use it as much as the rest of us, and can send official stuff free.)

      • earlofhuntingdon says:

        Since the RNC is now a wholly-owned and controlled subsidiary of Donald Trump, you can answer your own question.

    • earlofhuntingdon says:

      Presumably, Trump is intent on fucking up the USPS beyond fixin’ before the November election. It means the GOP is just fine making people pay FedEx rates for normal mail, which is the official government connection with people – from election notices to vote-by-mail, to jury duty calls, to real estate taxes, ad infinitum.

      Trump luxuriates in destroying things, it gets him high and gets him off. The Republican party is fine with that. Why should either of them have any say anymore in how real people live?

    • harpie says:

      Looks like Stroman was indeed “forced out” BECAUSE of Vote by Mail:

      Marcy retweeted:
      8:32 PM · May 12, 2020

      Fascinating. This member of the voter fraud commission suggests that the deputy postmaster general was in fact booted over vote by mail. [screenshot]

      From the screenshot:

      J. Christian Adams @ElectionLawCtr
      6:04 PM – 5/12/20

      Good news from the #swamp: Ronald Stroman-deputy postmaster general who was working at cross purposes with @realDonaldTrump on #VoteByMail got booted, the hard way.

      A good lesson tor SES and political appointees across the government.

  18. Plewisku says:

    Thanks Marcy, and great post as usual. Judge Sullivan will have his hands full. Does he swear in Flynn again at some point prior to dismissing (without prejudice)? Can he force Bill Barr to testify at any hearing?

    I’m hoping that Sullivan addresses at the very least: (i) Flynn’s direct lies regarding his guilty plea; (ii) Flynn’s representations that he was not challenging FBI conduct; (iii) Flynn’s acceptance of responsibility; (iv) Flynn’s claims to be satisfied with his counsel as of 2018 etc.

    I know that you stress Sullivan’s unpredictability. However, he was ready to sentence him to jail time and told him to go cooperate more, and then his case devolved. Not only has Flynn not cooperated any further, but he actively harmed the Kian case. Hard to see Sullivan being happy or acquiescing to DOJ/Barr’s misconduct.

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