Barr’s Micro-Management of the Durham Investigation May Demolish the Premise of Flynn Motion to Dismiss

American Oversight FOIAed records of contacts between Bill Barr and John Durham, whom Barr has ordered to conduct an investigation to undermine the Russian investigation. While there’s no evidence that all of these meetings pertained to the investigation Barr ordered up, they span the period (but start earlier than) when Barr said he was communicating to Durham about the investigation.

People from Barr’s office met with Durham 18 times between March 25 and October 17, 2019. That doesn’t include the trip to Rome Durham and Barr took together last fall.

That is an astounding level of micro-management from an Attorney General.

That — plus records of a meeting on April 12, 2019 where Barr’s aide Seth DuCharme described for DOJ Inspector General Michael Horowitz what he and Durham were working on — may well demolish the premise of DOJ’s Motion to Dismiss the Flynn prosecution.

As I have noted, DOJ adopted a radically different view on both the legitimacy of the investigation into Flynn and the materiality of his lies in submissions filed under Bill Barr last fall and this January than what DOJ argued in the Motion to Dismiss. The only excuse provided — without any kind of declaration to substantiate the claim — was that DOJ had discovered “new” information that made it rethink its past position.

That claim was always sketchy, not least because Judge Emmet Sullivan had actually reviewed some of the most important documents released with the motion. Moreover, FBI already issued a public statement making it clear those documents were not new. In fact, the Bureau had already shared them with both Horowitz’s and Durham’s investigations.

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

If Sullivan and his newly appointed amicus, John Gleeson, acquire information that proves, definitively, that this information was not new to the Flynn prosecution supervisors, up to and including Barr, it may mean DOJ is estopped from adopting its current position because, effectively, having had those documents already, DOJ already committed to the opposite position.

These records provide Gleeson a road map to discover precisely who in the Office of Attorney General was micro-managing Durham’s investigation, including his receipt of documents that Barr’s office now claims (almost certainly falsely) were new to them.

That is, this FOIA response provides the skeleton of the kind of proof that Gleeson can use to argue that DOJ is prohibited from adopting its current stance, because they have no excuse for flip-flopping on a position already adopted in this case.

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30 replies
  1. earlofhuntingdon says:

    That leaves the small matter of the DoJ having lied to a federal court – by claiming information long in its possession was “new.” The claim would be material, since it’s the only foundation for moving to dismiss the prosecution.

    At best, the DoJ would have been negligent in not getting that information to relevant attorneys. It’s more probable, however, that Barr’s people just made shit up. That would be active fraud against the court, which must make Barr happy he didn’t sign the brief. I hope Shea has learned that Barr appears to be as willing as Trump to throw people under the bus.

    The trick for Sullivan – nothing new for an experienced federal judge – is to keep his response to this chicanery as dry and academic as possible, to avoid claims of bias and to make his decision hard to legitimately overturn on appeal.

    • ducktree says:

      ianal and all, but that’s why there is no declaration attesting to the “novelty” of this information. Someone would have to sign under penalty of perjury as to their “personal knowledge”

      • ducktree says:

        agh! hit send before I finished my reply:

        as to their personal knowledge, or on information and belief. And even they don’t believe it themselves!

    • earlofhuntingdon says:

      The motion to dismiss is based on the argument of novelty. (Like a bad economist, when presented with a nail, Shea seems to have assumed a hammer.) No doubt Sullivan will point out that Shea failed to produce the hammer supporting his fundamental claim, and demand that he do so or have his motion dismissed. Whatever he does, Sullivan will be deliberate and stick to procedure. It’s Powell and the DoJ who are in an election hurry.

      But even in the absence of evidence supporting Shea’s claim of novelty, he made the argument and is on the hook for it. He can’t just say, “Someone in the office told me the information was novel, so I ran with it,” and have it pass muster. He’s on the hook for lying or for negligence.

      That distinction, in fact, is a variation on an old legal defense, often used inside the Beltway to protect politicians and their cut-outs from their crimes. Penalties for ignorance, stupidity, and negligence are, for example, less severe than those for intentional wrongdoing.

      • Rugger9 says:

        That depends on whether the DC Circuit doesn’t interfere by giving Powell her writ of mandamus to shut it all down. So, this appears to be something of a race:

        – Barr, through Shea trying to quasi-pardon Flynn to keep him quiet but needs the DC Circuit to do it now.
        – Judge Gleeson trying to get his first report to the court done by June 10.
        – Something coming up in November where the transcripts, etc., would look mighty inconvenient for DJT.

        I’m sure I missed a few things, but since IANAL, where or how does Judge Sullivan defend against Powell’s motion if the DO”J” declines to do so?

        • earlofhuntingdon says:

          In the absence of a DoJ argument in opposition to the petition, the court will appoint someone else to make it.

          The full DC Circuit is unlikely to decide Powell’s petition for Flynn. A panel with a majority of Trump judges might, but it would probably then go to the full bench, and only then to the Supremes. That takes up a lot of time, which is not what Barr and Powell want. This ain’t over.

          • Rugger9 says:

            I’ll agree about the process, and the observations on the timing since it’s pretty clear now that the only way to stop this in time for the WH is for Judge Sullivan to grant the DO”J” request.

            That is not going to happen given Judge Sullivan’s suspicious nature of Government motives and what has already been put into the record. He will be one to say he’s really seen it all in his court.

            So, if the timeline doesn’t work as it sets up now with the election in less than six months, what would the WH be able to do to get this wrapped up by August?

              • Rugger9 says:

                Yep. Of course, then DJT’s fingerprints would be unavoidable, so I would guess we will see perhaps one more round of machinations from AG Barr and his minions before DJT pardons Flynn. There’s not enough time for more.

                However, even though the “base” will not care (and will have been carefully propagandized as well) pretty much everyone else will see this pardon as the corrupt act that it would be. There is a reason Flynn hasn’t been pardoned already, and it’s not just because Schiff would subpoena him for the next working day.

                • vvv says:

                  Indeed, I think there’s a bit of a balancing act here between doing the pardon and getting hit with whatever ramifications that brings, vs. whatever comes out/is done before the pardon.

                  And there is still some (perhaps declining) distraction and cheer-leading value for trump in letting this continue, despite the risks.

              • jvo says:

                So, regardless of outcome at SCOTUS, the Orange Taint will insure Flynn walks. Good talk.

    • FL Resister says:

      I hope for a world in which Shea will be covered in excrement. And expect at the US Department of Justice there is still such a world.

  2. viget says:

    Ok…

    What’s the over/under that the Durham/Jensen investigations are merely window dressing for Barr with his plenipotentiary declassification powers conferred by Trump to go hunting for counterintel investigations that may have been distributed among several FBI field offices by McCabe and/or the counterintel FBI agents working with Mueller? McCabe did say that he wanted to make sure that any counterintelligence investigations survived past his tenure at the agency.

    There’s clearly nothing there with regards to Crossfire Hurricane. The Flynn thing is a joke. Why do they need 2 USAs to do essentially the same investigation? Is it because Jensen has deeper ties with the FBI, having been a career agent there before working for DOJ?

    • emptywheel says:

      They needed Jensen bc if the Covington files get released Flynn’s going to be in still worse shape.

      • Peterr says:

        Might Covington still have a course of action against Flynn for accusing them of misconduct? A firm with their reputation does not strike me as being happy at having said reputation tarnished by a former client who say in court and under oath essentially “They gave me bad advice and forced me into lying and saying I was guilty.”

          • Rugger9 says:

            Probably not since I’m sure everyone in DC knows who Covington is and how good they are. With that said, I’m wondering how far Covington will tolerate the baseless attacks before making their displeasure known by (perhaps) cutting off funding like Thiel reportedly did.

  3. viget says:

    Ok, I guess. Seems like Durham already looked into Flynn and found nothing there. I guess Jensen was more of a toady?

    Still think the whole reason Barr is “investigating the investigators” is to find out exactly how much they (the FBI) really know about this whole criminal enterprise, so they can let their puppetmasters know how much to worry.

    • P J Evans says:

      I understand that this is actually fine with the Dems – they want it handled quickly.

    • Rugger9 says:

      No, the Dems don’t want to hush up the Mueller report, that is why they subpoenaed for it in the first place. As I understand it, the SCOTUS basically granted something the stay to look at it, not to decide the question.

      • earlofhuntingdon says:

        And to delay the material’s release, as mandated by the Circuit court.. It scheduled submissions for June. It could deal with the case yet this term. That suggests the conservative majority is looking for a way to overturn that Circuit court decision, but hasn’t found one it likes yet.

  4. SomeGuyInMaine says:

    Worth remembering that Durham’s activity did not start out as an ‘investigation.’ That would have required factual predication which at the time appears to have been utterly absent.

    It began as a “Review” otherwise know and an criteria free political fishing expedition.

    I don’t recall the date Durham’s work became an actual “investigation.”

  5. earlofhuntingdon says:

    Trump is beating his drum that mail-in voting promotes voter fraud. Normally, that’s false. It is true in at least one instance, but not because the vote cast was mail-in.

    Trump votes by mail in Florida. His excuse is that he’s out-of-state at election time. Here’s where the fraud comes in. Trump claims Mar-a-Lago is his Florida residence. But when he bought Mar-a-Lago, he explicitly agreed that NO ONE could legally use it as their residence. In fact, long stay visitors are limited to no more than three visits of up to seven days each per year. He hasn’t renegotiated the arrangement or sought or obtained a waiver.

    Looks like intentional voter fraud to me. What’s the harm? Well, in Texas, voter fraud is a felony. In 2018, it sentenced an African American woman to five years for inadvertently voting when she was allegedly not eligible. Trump’s conduct is intentional. He bought Mar-a-Lago, he agreed to the restrictions prohibiting residents, he claims it as his residence, and he knows all about voter fraud. What will Florida do?

    https://www.npr.org/sections/thetwo-way/2018/03/31/598458914/texas-woman-sentenced-to-5-years-for-illegal-voting

    • FL Resister says:

      Florida will do nothing. Governor DeSantis is a Trump behind sucker. It’s how he got elected in this now god-forsaken state.
      We still have gorgeous weather though.
      Down here we call Trumpism culling the herd. Boris Johnson tried it and we know how that turned out.

  6. lastoneawake says:

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