Judge Reggie Walton Has Questions about the Non-Stone Redactions in the Mueller Report

Judge Reggie Walton appears to have questions about the non-Roger Stone redactions in the Mueller Report — but we won’t learn what they are for another six weeks or more.

I say that because of two orders he has recently issued in the BuzzFeed/EPIC FOIA lawsuit to liberate the document. Back in May, the plaintiffs pointed to a number of developments in the Roger Stone case, arguing that DOJ can no longer rely on any of the FOIA exemptions previously used to hide such information.

First, the Department of Justice (“DOJ”) may no longer assert that it is prohibited by Judge Jackson’s order from disclosing additional material from the Mueller Report pursuant to the Freedom of Information Act (“FOIA”), as that order has now been lifted. 11.

Second, because the DOJ has disclosed extensive new material concerning its investigation of Mr. Stone—in addition to the new material already disclosed by the DOJ during Mr. Stone’s trial—the DOJ may no longer withhold that same information contained in the Mueller Report. See Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)) (“[W]hen information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.”). Plaintiffs are thus entitled to any such material under the FOIA.

Third, the DOJ’s Exemption 7(A) claims predicated on the Stone trial are moot. Exemption 7(A) applies only to records compiled for law enforcement purposes, the disclosure of which “could reasonably be expected to interfere with enforcement proceedings,” 5 U.S.C. § 552(b)(7). “[A] law enforcement agency invoking the exception [must] show that the material withheld ‘relates to a concrete prospective law enforcement proceeding.’” Juarez v. DOJ, 518 F.3d 54, 58 (D.C. Cir. 2008) (quoting Bevis v. Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)) (emphasis added). Notably, disclosure “cannot interfere with parts of the enforcement proceeding already concluded.” CREW v. DOJ, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (quoting North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989)).

In response, last week, Walton ordered DOJ to file a response by this Friday.

Upon consideration of the plaintiffs’ 119 Notice of Factual Developments Relevant to Pending Motions, it is hereby ORDERED that, on or before June 12, 2020, the United States Department of Justice shall file its response to the plaintiffs’ notice.

DOJ’s response will be interesting, given that, in May, DOJ withheld information from Stone’s warrants partly for privacy reasons (protecting Ted Malloch’s privacy, among others), and partly because of pending investigations. The latter material actually appears to pertain to things that don’t appear in the Mueller Report, however, so any 7A exemptions that DOJ invokes will be of some interest.

But, particularly given the fact that DOJ has not yet responded to that order yet, it suggests that an order Walton issued yesterday, delaying the public hearing on the lawsuit and instead scheduling an ex parte hearing with the government on July 20 — possibly extending to July 21 and 22 (!!!) — pertains to other matters.

Having reviewed the unredacted version of the Mueller Report, the Court cannot assess the merits of certain redactions without further representations from the Department. However, because the Court must discuss the substance of the redactions with the Department, and because such a discussion cannot occur remotely due to the lack of a secure connection between the Court and the Department necessary to avoid disclosure of the redacted information, and in light of Chief Judge Howell’s May 26, 2020 Order, In re: Further Extension of Postponed Court Proceedings in Standing Order 20-9 and Limiting Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-29 (BAH), it is hereby

ORDERED that the status conference currently scheduled for June 18, 2020, is VACATED.

It is further ORDERED that, on July 20, 2020, at 9:30 a.m.,1 the Department shall appear before the Court for an ex parte hearing to address the Court’s questions regarding certain redactions of the Mueller Report.2

1 The Department shall be prepared to appear before the Court for a continuation of the July 20, 2020 ex parte hearing on July 21, 2020, and July 22, 2020, if necessary.

2 The Court will advise the Department as to the topics that the Department should be prepared to discuss at the July 20, 2020 ex parte hearing at a later date.

Curiously, Walton isn’t even asking the government to brief these redactions; he’s asking for someone to come into his courtroom and discuss it, possibly for an extended discussion.

The least interesting topic in question might pertain to the significant redactions of the Internet Research Agency materials, which were redacted in significant part for national security reasons rather than to protect the integrity of an upcoming trial, as they were for Stone. I doubt Walton will have much interest in unsealing that stuff anyway, because he is generally quite sober about protecting national security information.

But there are other things of interest that Walton would want to preserve secrecy on until he tests DOJ’s claims about them. The most obvious are the two discussions apiece about how Trump père and fils avoided testifying; those discussions are currently hidden under a grand jury redaction, one that is arguably inconsistent with other discussions of grand jury actions (including, most recently, a bunch of 302s describing the FBI serving witnesses with subpoenas). We, as voters, should know the details of how Trump dodged a Mueller interview before November 3, and these redactions have always been one of the obviously abusive redactions.

Similarly, DOJ redacted at least two names from the Report’s description of an October 20 scope memo (which the frothy right has gotten disinterested in obtaining), one of which is Don Jr.

DOJ has claimed these privacy redactions are of tertiary third parties, which — given that the second redaction is almost certainly the failson — is clearly false in this instance.

Similarly, given KT McFarland’s public claims that she was caught in a perjury trap, any passage that explains why she wasn’t charged with false statements (which might be the redaction on page 194 of the first part of the report) might be justifiably released.

But there are two redactions that — given recent events — are far more interesting.

There’s a sentence describing Mueller’s decision not to charge Carter Page as an agent of Russia. While, in Page’s case, I might otherwise support leaving this redacted, DOJ has declassified far more sensitive information than what must appear here in response to GOP demands.

The redacted sentence likely summarizes what the fully declassified FISA applications reveal: which is that there was a great deal of evidence that Page was willing to work with known Russian intelligence officers, including sharing non-public information on US businesses, as well as evidence he either lied or had gotten so unbalanced by 2017 that he didn’t tell the truth about those contacts as they they continued to be investigated. Because the FISA application was a case of selective declassification, this passage might be justifiably unsealed to prevent that kind of selective release.

Finally, in the that same section of the report discussing why Mueller didn’t charge people with violations of FARA or 18 USC 951, there’s a footnote about an ongoing investigation that must pertain to Mike Flynn.

My guess is this pertains to a counterintelligence investigation into the ways Russia was cultivating Flynn, something the transcripts of his calls with Sergey Kislyak make clear was happening (which is to say, it doesn’t necessarily say Flynn was at risk of prosecution but that FBI had a duty to investigate). Mueller said FBI was still investigating counterintelligence issues pertaining to Flynn during his July 2019 congressional testimony, which would be consistent with the b7A redaction here.

In any case, given DOJ’s decision to flip-flop on Flynn’s prosecution, any indication there was an ongoing investigation pertaining to Flynn 15 months after he pled guilty for lying would sharply undercut DOJ efforts to exonerate Flynn. And given DOJ’s declassification of so much else pertaining to Flynn — up to and including some, but not all, of the FISA intercepts collecting his calls with Russia — it would be hard for them to argue that this passage could not be declassified.

Unless, of course, the investigation remains ongoing.

Which makes Walton’s apparent delay regarding what topics he expects DOJ to cover next month rather interesting. By July 20, when this ex parte hearing will take place, the DC Circuit may well have decided the Mandamus petition targeting Judge Emmet Sullivan (though, particularly given Noel Francisco’s inclusion on DOJ’s brief on the topic, I expect it to be appealed no matter the decision). And even though he has read the entire report, Walton’s order deferred instructing DOJ about what they would have to discuss until “a later date,” meaning it’s unlikely he issued a sealed order doing so yesterday. At the very least, Walton may delay until he gets DOJ’s response on the Stone materials on Friday.

If there really is an ongoing counterintelligence investigation into Flynn, I would expect (and always have expected) Walton to leave this redaction untouched. But if Billy Barr’s DOJ squelched that investigation, too, I imagine Walton would make the footnote and any discussions about it public.

Once upon a time, DOJ might have gotten by with just the Stone redactions and the abusive redactions protecting Trump and his son. But in recent months, DOJ has done plenty to justify more broadly releasing some of this information.

Sadly, that won’t happen for over a month yet.

59 replies
  1. Rugger9 says:

    It’s a pity that the DCC will be likely to rule before Judge Walton gets his briefing and issues his ruling. However, since it seems clear as noted above that a SCOTUS appeal is coming, this post’s topic will be better resolved before those arguments come.

  2. The Old Redneck says:

    Is Stone appealing his conviction? I suspect he is but don’t know. Just wondering, because judicial proceedings aren’t generally considered ‘concluded” until exhaustion of all appeals. I’m thinking DOJ might argue to keep some Stone redactions on the ground that he may get a new trial.

  3. Peterr says:

    The Flynn piece is exactly what I was thinking about when I read Walton’s order — especially the footnote telling DOJ to clear their calendars for three days, ’cause this might take a while.

    The reason, I suspect, is that Walton may also be looking at the representations that DOJ made to Sullivan, both the most recent ones and the earlier ones. He has already put DOJ on notice that he cannot take Barr’s word at face value because of his history of public misrepresentations.

    The fact that (as you noted) Walton did not ask for additional filings or responses but for the physical presence of a DOJ lawyer in his courtroom ought to worry the DOJ a great deal. It may be that Walton doesn’t want to get into a lengthy string of response-question-reply-followup question . . . filings and orders, all under seal, that would drag on for months. Instead, he simply wants to cut to the chase which is more easily done in a face-to-face meeting. At the same time, I think it is likely the case that it’s not that Walton doesn’t understand what DOJ is saying and wants them to explain it better, but that he understands very well what they’re saying and does not like it. The result, then, would be Walton doing with DOJ what Sullivan did with Flynn in December 2018. “We’re going to walk through this step by step, and you’re going to be very clear about what you are telling me, because I see before me a pattern and history of failing to tell the truth that bothers me a great deal. Before I rule, I need you to come in and help me to figure out if you are sloppy lawyers or lying lawyers. Or, of course, you could be both.”

    • emptywheel says:

      I doubt that’s the bulk of it, mostly because I’m fairly certain the redaction noted in this post is the only one pertaining to Flynn in the report.

      • Peterr says:

        The redactions about Don Jr. and the decision not to charge KT McFarland that you note above, however, would appear to fit the same pattern of telling the court one thing here while Mueller is appearing to tell something very different.

        The picture of Flynn in the mural of Official DOJ DoubleSpeak is the most visible of the whole thing, thanks to the filings in Sullivan’s court. But Walton has more than a glimpse of other parts of that mural, and I think he’s done trading polite notes about it. Even the order itself is blunt and to the point.

        Walton sounds like a professor who gave a student an extension on a big assignment, and what got turned in was woefully incomplete, and it came along with complaints about the unfairness of the assignment. After some back and forth, he gave the student a request for additional materials if the student wants to pass, which resulted in additional less-than-complete work submitted with a few snide comments along the way. OK, I’m done with this nonsense, says the prof. I just want you to come into my office so we can talk. No more extensions, no more excuses. Just bring yourself in. And be prepared for a long conversation.

  4. Das Robot says:

    Does the Shea/Herdman position as the DC Attorney play into the timing? Machts nichts?

  5. Mitch Neher says:

    Ms. Wheeler wrote, “We, as voters, should know the details of how Trump dodged a Mueller interview before November 3 . . .”

    Yes. Thank you Ms. Wheeler. I deeply appreciate this reminder. We simply must know what’s behind those particular redactions most especially and the sooner before election day, the better.

    Please place my wager on letters or declarations of intent to invoke The Fifth Amendment right against compelled self-incrimination for both the father and the son; even though, as president, Trump Sr. could’ve asserted executive privilege, instead.

    Tooty fruity, awww, Rudy.
    A wop bobaloo bop. A wop bam boo.

  6. bmaz says:

    As I said elsewhere: “The best Reggie since Mr. October“.

    Also, and it will be interesting to see if he does so on the public docket, things will be much more clear when Walton’s questions are really propounded.

    • Bay State Librul says:

      Will DOJ’s road trip to Reggie’s house bring out their “better angels”
      I fear not.
      Barr’s men are rebels to the cause, likely to play their usual illusionist legal tricks.

    • earlofhuntingdon says:

      Given the usual “I know nusskink” behavior from Barr’s DoJ, I’ll be surprised if whomever shows up to answer Reggie’s questions knows the material or will have authority to answer them.

      I should think Walton would consider as non-responsive any but perfunctory delays from the DoJ lawyer(s) as they report back to the DoJ, conference, agree on a response (or non-response), get it to Reggie, and so on. That sort of runaround, though, would seem to be second nature to Bill Barr. (I suppose that game changes materially, depending on whether Barr needs to play it for seven months or another four years.)

      Walton’s default position, though, is probably to release the redacted material (with the exceptions EW notes), which should make this more of a chess game than pissing contest.

      • arbusto says:

        Wonder if slotting a three day window would shortstop DoJ game playing of sending in the JV team.

        • ducktree says:

          With bonus points to Judge Walton for providing, well beforehand, to DOJ the areas of inquiry to be covered: requiring those persons most knowledgeable on the relevant subjects to be made available and prepared to respond competently.

          • I Never Lie and am Always Right says:

            I expect Judge Walton, in his Order regarding the subjects to be discussed, will say something about the need for the DOJ Attorneys who appear at the ex parte hearing to be familiar with the subjects to be discussed. He may even discuss potential consequences of showing up unprepared.

            And I expect Barr and his toadies to walk right up to the line, if not over the line, in an effort to obfuscate.

  7. earlofhuntingdon says:

    With everything about the USG that the federal courts deals with, I’m surprised there is no suitably secure telecom link between it (Prettyman?) and the DoJ. Maybe that’s to make sure its lawyers show up in person to argue their side and because ex parte hearings are relatively rare.

    • bmaz says:

      Welp, having just done another “telecourt” pre-trial conference this morning, I remain in the disdainful column. It just sucks. Parte or ex-parte, I’d rather deal with it all in person.

      • Bay State Librul says:

        Here here
        I’m doing audits remotely and it’s no fun.
        I did a local brewery with annual volume of 40,000 barrels and all I got was a six pack in the mail? I might be compromised?

      • ducktree says:

        In Los Angeles, the State Superior court is moving to LA Court Connect via Webex for video court appearances. This Webex-based system (LA Court Connect) will allow attorneys to appear by video. Prior to this, remote appearances were conducted using CourtCall, and as the name implies that was strictly telephonic. They have rolled out in two months what would usually take 18 (per a firm partner who attended the PJ’s Zoom conference at which this was announced).

      • vvv says:

        I did two sworn statements (deps) last week by telephone, presenting claimants on an uninsured motorist claim. I didn’t mind, saved a lot of time and travel, and since they were my witnesses, demeanor wasn’t an issue for me.

        But that’s the thing I took from the Supreme Court arguments descriptions – the inability to see the judges was an issue. As well as the structuring of questioning and the control ceded Roberts re same.

        I wouldn’t want to cross by telephone; haven’t done video yet altho’ I have a Zoom domestic law motions hearing set next week …

      • ernesto1581 says:

        Oh my god, and you can add to pre-trials by remote control the fool’s errand of trying to nail down a Dept of Children & Families fieldworker, foster family, Dept of Mental Health personnel, school & court personnel all together for a confidential meeting or hearing on a juvenile…plus the crazy difference in the quality of internet service people “enjoy” in the state of VT (I’m still running on DSL, which sometimes gets me as much as 3 mbps down)…you said it: it just sucks.
        Give me eyeball contact and body language any day.

    • Raven Eye says:

      Whilst the connection between the two terminals may be secure, Walton can’t be sure what is going on out of sight in the other room. Also, would the DOJ end of a teleconference be in a SCIF or equivalent room? Calling the DOJ rep to the Court ensures that the judge is in control of the environment. I doubt that the DOJ rep would be patted down, but for national security reasons cel phones or other Portable Electronic Devices (PEDs) would be left outside.

      And than, as mentioned above, there IS something about face-to-face.

    • Nehoa says:

      I spend much of my day on conference calls…Zoom, Skype, Webex, etc. Wouldn’t trust any of them to be secure against any sophisticated malign element. They have a hard enough time providing working connections.

      • bmaz says:

        The Walton inquiry is different, security may be an issue on that one. For the most part, I am not so concerned on court things, they would all be public normally anyway. You want to see them, just show up in court, it is open! Except for now because of Covid.

        My objection is the last part….the connections don’t always work that well, and sometimes they are just shit. And I hate not being able to read the room, so to speak, as I am having to interact. Probably being a troglodyte I guess, but just do not like it.

        • Raven Eye says:

          Just because you are a troglodyte doesn’t mean you’re wrong here. No matter how good the audio and video are, they’re just a representation of what’s happening in the distant location — and in a flat rectangular frame. And you don’t get to see what’s happening outside the frame.

          PWC used to teach forensic accountants things like the “deceptive glance to the lower right”, but those supposedly universal human “tells” have largely been discredited. But there is a lot more going on when you are in the actual presence of all the players. If I just step out of the front door, walk to the end of my short driveway to check the mail box, and then walk back, I’m exposed to an almost infinitely richer set of stimuli than I could capture with 8K video and 4 channel sound. And tons more than I’d get in even the most complex first person video game.

          The other thing is that you don’t get to inject as much of yourself through body language or anything else that would be out of frame.

          • Bay State Librul says:

            Good points.

            Also, look into the footnotes where the real filthy lucre is revealed, the pristine wilderness of numerical obfuscation.
            In this case, the legal jargon or redaction efforts to hide the truth.

  8. civil says:

    Re: Flynn’s case, I’ve seen a right-wing talking point claiming that the expulsion of Russian intelligence operatives wasn’t part of the “U.S. Sanctions” as defined in Flynn’s Statement of Offense. I’d always assumed that they were part of the sanctions, and I’d be hugely surprised if the SCO defined U.S Sanctions in a way that didn’t include the expelled operatives, but this talking point prompted me to look up the relevant texts in an attempt to resolve it. However, IANAL, and the texts are somewhat dense and cross-referential, and I’m not sure if I’m interpreting the texts correctly.

    Flynn’s Statement of Offense defines “U.S. Sanctions” as those in Executive Order 13757 (https://obamawhitehouse.archives.gov/the-press-office/2016/12/29/executive-order-taking-additional-steps-address-national-emergency ). Executive Order 13757 in turn amends Executive Order 13694 (https://obamawhitehouse.archives.gov/the-press-office/2015/04/01/executive-order-blocking-property-certain-persons-engaging-significant-m ) in certain ways, including replacing Section 1(a) of Executive Order 13694 with new text. Obama also released a statement that included: “The State Department is also shutting down two Russian compounds, in Maryland and New York, used by Russian personnel for intelligence-related purposes, and is declaring ‘persona non grata’ 35 Russian intelligence operatives.”

    My question is whether those 35 intelligence operatives fall within the scope of the combined Executive Orders, 13757 and 13694. My sense is that Section 4 of OE 13694 applies to them, but I’m not certain. Here’s what that section says:
    “Sec. 4. I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in section 1(a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions).” [In case anyone wants to read that, here’s a link, but I don’t think it’s key: https://www.govinfo.gov/content/pkg/CFR-2012-title3-vol1/pdf/CFR-2012-title3-vol1-proc8693.pdf ]

    I assume that “suspend entry” extends to expulsion for anyone in that category who is already in the country, but I’m not certain.

    “one or more of the criteria in section 1(a) of this order” now refers to Section 1(a) of EO 13757, which is long, but which includes “(ii) any person determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, to be responsible for or complicit in, or to have engaged in, directly or indirectly, cyber-enabled activities originating from, or directed by persons located, in whole or in substantial part, outside the United States that are reasonably likely to result in, or have materially contributed to, a significant threat to the national security, foreign policy, or economic health or financial stability of the United States and that have the purpose or effect of …,” and then proceeds to list a bunch of purposes/effects (e.g., “interfering with or undermining election processes or institutions”), as well as “(iii) any person determined by the Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State … (B) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, any activity [described above].” So it seems to me that if those 35 operatives provided support for things listed in (ii), they’re covered by EO 13757 and therefore part of the U.S Sanctions as defined in Flynn’s Statement of Offense.

    Would anyone confirm that, or correct me if I’ve misinterpreted? Thanks in advance.

    • John Paul Jones says:

      I think it would help readers if you could say why you think it does or does not matter that the 35 fall within the scope of particular EOs. As posed, the question seems oddly incomplete. Since the 35 were declared PNG, my assumption would be that it really doesn’t matter whether or not they fall under a particular order. As well, Flynn was convicted of lying, an act which was came after whatever he did regarding sanctions, so I would say that your initial assumption is correct: it’s a bogus right-wing talking point. Waste no more time on it (I wouldn’t).

      • bmaz says:

        The Flynn allocution has nothing necessarily to do with what sanctions were contemplated or entered. Linking them is absurd.

        But the carefully crafted Flynn plea and allocution is something “civil” has been preternaturally, and somewhat bizarrely, focused on from their magical arrival here, less than a month ago under the moniker of “Comments”. Wonder why that is, and what the agenda is?

        • chetnolian says:

          Perhaps cut civil some slack?.

          It’s just getting down into the weeds, which I would have thought is exactly what Marcy encourages us all to do, though most don’t have the time or, perhaps, persistence. It’s worth seeing what sort of twisted logic the enemy within is cooking up now. Unless I misread, civil’s conclusion is that they are wrong, which most of us here agree with.

        • civil says:

          I don’t understand your claim that “The Flynn allocution has nothing necessarily to do with what sanctions were contemplated or entered. Linking them is absurd.”

          The SCO linked them in 3a on p. 2 of the Flynn Statement of Offense: “On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (‘U.S. Sanctions’).” IANAL, but my understanding of that is that every time the Statement of Offense refers to “U.S. Sanctions” (which occurs multiple times), it’s a reference to sanctions as defined by that EO. Am I wrong about that?

          I’m interested in the Flynn case. There’s nothing “bizarre” about that.

          • bmaz says:

            It has been explained before and yet you keep coming back with this same sticht again, and again and again. Every time thinking you have found some magic acorn in the forest that only you can see when you have not. Every time wasting precious electrons and column inches on the same old thing. You are repetitive and a pain in the ass. What is absurd is that you are still relentlessly propounding this. It is also bizarre. And very tiring.

        • Alan Charbonneau says:

          It may be true that “the Flynn allocution has nothing necessarily to do with what sanctions were contemplated or entered”, however Marcy stated that the reason Flynn lied was to cover up the involvement of Mar-a-Lago:

          ‘May 21, 2020 at 8:26 am
          If Trump made the order it’s the quo in a quid pro.

          Remember his son told representatives of Russia they’d reconsider sanctions if they won, at a meeting that effectively became dirt-for-sanctions.”


          My question is if the sanctions referred to were the expulsions and not the Magnitsky sanctions, how is this quo in a quid pro?

          Flynn did not want his communications with McFarland/Trump exposed, but I don’t see how it proved a quid pro quo. I’m still not sure why Flynn lied. Political fallout doesn’t seem to be a good enough reason.

          • bmaz says:

            What does “quid pro quo” have to do with the actual plea? The answer is same as it was to civil all the times he/she keeps prattling on about this, and the answer is nothing necessarily.

            The plea was a single count of simple §1001 false statements. Here is all that is really necessary for a statement of offense and allocution:

            “On or about January 24, 2017 I was interviewed by agents of the FBI that I knew to be agents of the FBI from their identification, and that interview took place here within the jurisdiction of this court. I knowingly made materially false statements to said agents at that time and place”.

            That is literally all that is necessary for the allocution, or as “civil” refers to relentlessly as the “statement of offense”.

            The rest is gratuitous and inserted because Mueller liked to dribble facts out in pleadings that otherwise might be under the Rule 6 protected status of grand jury proceedings or investigatory privilege. Often called speaking indictments, this was a direct plea with a speaking “statement of offense”.

            It makes for interesting analysis by weedy people like Marcy, but it is in no way necessary for such a simple single count plea, irrespective of how often and long civil prattles on about it.

            To give you an idea, here is the actual charging document in Flynn. If you except the caption, it is well less than a full page. Regurgitating that is all that is “necessary” for the plea to stand up. That’s it.

            • Alan Charbonneau says:

              I understand that a quid pro quo doesn’t have anything to do with Flynn’s plea. I am trying to figure out Flynn’s motivation, i.e. why Flynn lied. Marcy said his lie would show a quid pro quo and mentioned the Trump tower meeting. The sanctions discussed at that meeting were the Magnitsky sanctions, but Flynn’s lie was about PNG.

              I know he lied, but why? Why didn’t Flynn tell the truth? I’m not trolling, just trying to understand.

              • bmaz says:

                And Marcy may well be correct in that, she usually is. But these are the kind of questions begat by the speaking pleadings Mueller seemed to so enjoy, but are never fully answered. Maybe Walton will clear up a few, but I dunno. And I know you are not trolling, and that is why I am answering you and not civil.

      • civil says:

        Thanks, and sorry for not having explained that originally, I think I was caught up in figuring out how to explain the parts of the EOs that seemed relevant and checking again whether I’d understood them correctly.

        The reason is that the Statement of Offense says things like “During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (‘Russian Ambassador’) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. … In truth and in fact, however, FLYNN then and there knew that the following had occurred: … FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.” If the expulsions are part of the sanctions, then that’s accurate, but if the expulsions are not part of the sanctions, then it isn’t.

        If you look at the call transcripts, here’s the relevant exchange:

        FLYNN: … Listen, uh, a couple of things. Number one, what I would ask you guys to do – and make sure you, make sure that you convey this, okay? – do not, do not uh, allow this administration to box us in, right now, okay? Um –

        KISLYAK: We have conveyed it. And –

        FLYNN: Yeah.

        KISLYAK: It’s, uh, ifs uh, very very specifically and transparently, openly.

        FLYNN: So, you know, depending on, depending on what uh, actions they take over this current issue of the cyber stuff, you know, where they’re looking like they’re gonna, they’re gonna dismiss some number of Russians out of the country, I understand all that and I understand that, that, you know, the information that they have and all that, but what I would ask Russia to do is to not – is – is – if anything – because I know you have to have some sort of action – to, to only make it reciprocal [“reciprocal” is italicized here]. Make it reciprocal. Don’t – don’t make it- don’t go any further than you have to. Because I don’t want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?

        KISLYAK: I understand what you’re saying- but you know, you might appreciate the sentiments that are raging now in Moscow.

        FLYNN: I know, I – believe me, I do appreciate it, I very much appreciate it. But I really don’t want us to get into a situation where we’re going, you know, where we do this and then you do something bigger, and then you know, everybody’s got to go back and forth and everybody’s got to be the tough guy here, you know?

        FLYNN: We don’t need to, we don’t need that right now, we need to-we need cool heads to prevail, and uh, and we need to be very steady about what we’re going to do because we have absolutely a common uh. threat in the Middle East right now

        KISLYAK: We agree.

        FLYNN: We have to eliminate this common threat.

        KISLYAK: We agree. One of the problems among the measures that have been announced today is that now FSB and GRU are sanctions, are sanctioned, and I ask myself, uh, does it mean that the United States isn’t willing to work on terrorist threats?

        FLYNN: Yeah, yeah.

        KISLYAK: Because that’s the people who are exactly, uh, fighting the terrorists.

        FLYNN: Yeah, yeah, yep.

        KISLYAK: So that’s something that we have to deal with. But I’ve heard what you say, and I certainly will try-

        FLYNN: Yeah.

        KISLYAK: – to get the people in Moscow to understand it.

        FLYNN: Yeah. And please make sure that its uh – the idea is, be – if you, if you have to do something, do something on a reciprocal basis, meaning you know, on a sort of an even basis. Then that, then that is a good message and we’ll understand that message. And, and then, we know that we’re not going to escalate this thing, where we, where because if we put out- if we send out 30 guys and you send out 60, you know, or you shut down every Embassy, I mean we have to get this to a – let’s, let’s keep this at a level that uh is, is even-keeled, okay? ls even-keeled. And then what we can do is, when we come in, we can then have a better conversation about where, where we’re gonna go, uh, regarding uh, regarding our relationship. [end excerpt, pp. 9-10 of the transcript]

        Ms. Wheeler had previously written “I’ll be writing about [the transcripts] for some time, but this is the key bit. Flynn raised sanctions himself…,” and she excerpted part of what I copied above about making it reciprocal (https://www.emptywheel.net/2020/05/29/from-day-one-mike-flynn-made-it-russia-and-trump-versus-democrats/ ). And I’d interpreted the transcripts the same way. But if the expulsions aren’t part of the sanctions, then Flynn isn’t the one who raised them, and all he says is “yeah, yeah.”

        Since the SCO defines the sanctions in terms of the EO and claims that this exchange about reciprocity is about the sanctions, it matters whether the expulsions are or aren’t part of the EO. If they aren’t, then the SCO screwed up (which would surprise me, but isn’t impossible), because Flynn was focused on a tit-for-tat re: the expulsions, not the FSB and GRU sanctions.

        • Eureka says:

          Let’s unpack this reframing job a sniff and bushwhack these manufactured “weeds.”

          To your last para/claim that “it matters” — no, it doesn’t, you are horribly complicating things by first reducing this to a false frame (or agreeing to others’ reductions, and dragging them here), then expanding from that laser-focused, decontextualized reduction instead of just looking at the transcript in context.

          This is some induction oven of bullshit.

          (Here,) Flynn introduces the _general topic_ of “actions they take over this current issue of the cyber stuff”. Just because Flynn chooses to use as the discussion example _one denotation_ does not mean he has eliminated all others.

          This is particularly true here for several reasons, not least of which is Flynn’s *even more general* opener to this whole convo about not letting Obama admin “box us in.”

          But even more significant — RIGHT BEFORE YOUR EYES — is that Kislyak _reassures_ Flynn that they HAVE ALREADY _CONVEYED_ IT, “it” including not allowing that Obama admin box-in, _before_ Flynn pivots to the specific of PNGs. Where’s the transcript(s) leading up to that prior event?

          The irony is that what seems to be an obsessively close reading (in this whole “right wing talking point” strand) is that it misses the simple plain truth, besides other possible explanations for why the discussed exemplar might focus on PNG as the opening hypothetical rather than others as part of the suite of “actions” for the “cyber stuff.”

          Like are people really trying to claim with straight faces that Flynn would only care or understand that “actions” would refer to solely to PNGs, because PNGs are used as the initial surface topic? Ludicrous.

          It’s an error to fixate on what is present to claim that what is not stated is absent, or that what is present constitutes the reasonable universe of intention — esp. given this is not even the universe of Flynn-Kislyak comms.

          Even if one wishes to hyper-legalize the definition of sanctions for purposes of playing this “Does PNG count as sanctions?” game, that, too, is not necessary to the general understanding of sanctions as “actions”. It’s clear from the transcript that Kislyak knew exactly what that general term meant; Kislyak even later mirrors it by using the word “measures”.

          Beyond a practiced intelligence officer trying to be cagey amidst a swill of other documented dishonesty, the actual context includes things like KT McFarland’s unforgetting.

          So while we know that this whole mishegas is why the Powell-Grenell coalition sought-released what they did (just PNG, folks — NOT sanctions — nothing else to see here!), there are too many other facts to dismiss.

            • Eureka says:

              Why thanks! You know I almost didn’t bother but for the possibility of fellow genuine readers getting caught in that thicket. Plus, annoying.

        • Eureka says:

          As to your claim that only Kislyak brought up “sanctions” —

          But if the expulsions aren’t part of the sanctions, then Flynn isn’t the one who raised them, and all he says is “yeah, yeah.”

          whether by using the magic word, or the magic example, you need to scroll back up: FLYNN brought up the “Middle East.”

          Further, that Flynn used PNG as the example for “actions” (read: SANCTIONS as broadly understood) might be even worse as to quid-pro-quo implications: maybe there was a concern that escalating expulsions of Russian nationals (in a tit-for-tat) would deprive Trump properties of income.

          But more to the point of _what Flynn said_ in also bringing up embassy closures as part of that tit-for-tat, that points to the more personal implication that Kislyak, too, could be bounced, and they would lose their comms channels.

      • civil says:

        John Paul Jones:
        FWIW, I tried responding to your question, but bmaz has not approved my response yet to be posted. I don’t know if he will.

        [The comment to which you are referring was 900 words long and won’t be published. Comments of that length act as denial of service to readers on mobile devices. Be concise. /~Rayne]

        • bmaz says:

          There. I posted your run on navel gazing bullshit. It is the same as it ever was, and a waste of space here. That is the last time, find a new acorn. And quit whining,

        • civil says:

          Rayne, Thanks for your explanation. I’m using a laptop, not a cell phone, and I don’t use a cell phone to read or comment on the web, so that hadn’t occurred to me. bmaz has since approved my comment, but in the future, I’ll just give a link and page numbers instead of quoting, and now that I understand this issue, that’s what I would have done if it hadn’t been approved.

          [Optimum writing for comments is 100-300 words max. If you can’t make your point cogently in that many words, rethink it. And yes, a considerable number of community members read on mobile devices — they will scroll-scroll-scroll by long comments. /~Rayne]

          • bmaz says:

            This is complete and duplicitous garbage. You have been warned previously. Yet you keep coming back with the same old run on bunk. Your claim to now be suddenly enlightened is fraudulent.

        • John Paul Jones says:

          Thanks for replying. However, I was trying to suggest in my own way what bmaz has said directly: there’s no there there, so your original take was correct. This is right-wing bullshit.

  9. misteranderson says:

    Stupid question(feel free to throw an internet eraser at me): Is there an ongoing CI investigation into just Flynn or is there a much larger ongoing CI investigation into more that Flynn? There are a couple of Twitter feeds (including a guy named Uncle Blazer) that claim that there’s a large CI & that Burr & Wray protected & that’ll be released imminently. Is that bs? I really don’t know.

  10. earlofhuntingdon says:

    The news of late has me thinking of Donald Trump’s spokesbarbie, Kayleigh McEnany. Her ability to casually lie is exceptional. But the poise that seems to overwhelm MSM commentators is only prettier, not more authentic than Donald Trump’s. Her impatience and greed are common inside the Beltway, but I find it sad that she could think of nothing better to do with her Harvard Law School degree than to use it as a neocon stocking stuffer.

  11. harpie says:

    Via Adam Parkhomenko:
    Spencer Hsu:
    6:48 PM · Jun 10, 2020 TONIGHT

    Chief D.C. U.S. District Judge Beryl Howell has unsealed a previously secret grand jury opinion from April 2, 2018, in an unspecified investigation into possible money laundering, sanctions violations and defrauding the United States.

    The heavily redacted 13-page opinion granted a U.S DOJ request to waive attorney-client privilege for “emails, audio recordings, and cooperator statements about written or oral communications” that prosecutors had subpoenaed to show a federal grand jury.

    Howell found that the unnamed attorney opposing the subpoena “was not acting as legal counsel” in the communications, and even so the U.S. had shown a “crime-fraud” exception applied, such as when a suspect may have lied and caused that lawyer to unwittingly lie to the government [WaPo link to doc]

    I think this is themost recent emptywheel post mentioning Howell:
    May 3, 2020
    Roger Stone’s assistant, Andrew Miller, fought a subpoena all the way to the Supreme Court. But when Stone got a Mueller subpoena, he complied with no public complaint.

    • earlofhuntingdon says:

      That description of the crime-fraud exception is mahvelously exculpatory. In reality, it covers more than a lawyer “unwittingly” aiding a client’s crime. It also comes into play when a lawyer knowingly aids and abets his client’s crimes and when he commits other crimes that result in aiding and abetting those crimes. But then, the WaPo is a newspaper in a lawyers’ town.

      • vvv says:

        Spot on: I had to read that twice re it not explaining why, “Howell found that the unnamed attorney opposing the subpoena “was not acting as legal counsel” in the communications, ….”

        He so found because that unnamed att’y was acting as a bad guy.

        (I found the “even so” particularly misleading.)

      • earlofhuntingdon says:

        Actually, I read the “not acting as legal counsel” bit to mean the lawyer had no client relationship with defendant in regard to those communications, and, therefore, no privilege would attach. More accurately, though, it probably means that when the lawyer was acting criminally, he was not engaged in providing protected legal services, and, therefore, no privilege would attach.

        But I was focused on the narrow exculpatory way the WaPo described the crime-fraud exception (“unwitting” furtherance of a client’s crimes). That excludes intentionally furthering a client’s crimes.

        • vvv says:

          Yes, but: “such as when a suspect may have lied and caused that lawyer to unwittingly lie to the government”.


          • P J Evans says:

            Suspect lies to lawyer, lawyer is unable to check it, and then uses it in legal proceedings.

  12. Savage Librarian says:

    Hey, Marcy, I’m back again with my persistent obsession to figure out the
    Mystery Name ending in R. This suggestion sounds logical but I have absolutely no evidence of any connection to Stone or Ortel. But the excerpts below are from an interesting article that lead me to think the mystery name may be Charles Faulkner. [As a reminder, ew said “On August 17, 2016, someone (Charles Ortel?) introduced Stone and R” (referring to Mystery Name ending in R.)]

    “Scandal at State: A huge arms deal, a revolving-door lobbyist and the fired inspector general”- Salon, 5/20/20, Roger Sollenberger

    “An $8 billion Saudi arms deal, a revolving-door lobbyist and a fired inspector general: Is Pompeo in trouble?”

    “Charles Faulkner, a former Raytheon lobbyist and former principal deputy secretary of state who was forced to resign in 2019 due to conflicts of interest surrounding an $8 billion arms sale to Saudi Arabia, was rehired by the administration four months later, Salon has learned.”

    “Faulkner’s resignation kicked off two investigations, and appears to have landed him in the center of a probe of that arms deal by the recently-fired State Department inspector general.”

    “The deal funneled $2 billion to defense contractor Raytheon, a firm Faulkner formerly represented as a lobbyist for BGR Group. Faulkner was reportedly forced to resign from his senior State Department position last May amid concerns about the key role he played in pushing the sale, which bypassed congressional objections through the rare step of declaring a national emergency.”
    “During the contentious 2018 debates, Sen. Bob Menendez, D-N.J., placed a freeze on a $2 billion Raytheon proposal, which entailed the sale of 120,000 precision-guided missiles to the Saudi-led coalition involved in the Yemen war.”

    “Faulkner and his legislative affairs team reportedly encouraged Pompeo to certify that Saudi Arabia had in fact addressed the casualty issue, reportedly out of concern over the pending arms sales, which included the stalled Raytheon deals, government officials told the Wall Street Journal.”

    “While arguments on these issues were ongoing in the U.S., a contingent of Saudi agents, believed to be acting at the direction of Crown Prince Mohammed bin Salman, murdered and dismembered Washington Post journalist Jamal Khashoggi in the Saudi embassy in Istanbul.”
    “In 2015, BGR was paid $90,000 to represent the Ukrainian Investment Alliance. Public disclosure forms indicate Faulkner was the sole lobbyist on the account.”

    “The same year BGR Group hired Faulkner, it also added Kurt Volker, the former ambassador who collaborated with Rudy Giuliani in the Ukraine scandal. That scandal also involved a block on a State Department weapons deal in the summer of 2019, a deal that directly benefited Raytheon.”


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