Mike Flynn Prosecutor Jocelyn Ballantine Tries to Square DOJ’s Crooked Circle

DOJ and Mike Flynn responded to Amicus John Gleeson’s filing arguing that Judge Emmet Sullivan should reject DOJ’s motion to dismiss Flynn’s prosecution today.

Sidney Powell claims Bill Priestap’s attempt to shield Flynn is misconduct

Sidney Powell’s brief was like all her other ones, legally a shit-show, at times making false claims, at others rolling out a word salad designed to impress the frothy right. It did not substantively address Gleeson’s filing but instead mostly repeated the arguments made in support of the petition for mandamus.

Two details are important, however. First, Powell repeatedly argued that both the FBI and DOJ’s prosecutors engaged in misconduct, in the latter case arguing the prosecutors withheld information covered by Brady.

Given the substantial briefing and documentation by the Justice Department of the reasons for dismissal here, based primarily on the Government’s proper recognition that it should correct its own misconduct which included suppression of extraordinary exculpatory evidence, this court has no further role to play than to grant dismissal forthwith. Smith, 55 F.3d at 159; United States v. Hamm, 659 F.2d 624, 631 (5th Cir. 1981).


In its ninety-two-page decision denying General Flynn all exculpatory Brady material he requested, the court distinguished this case from United States v. Stevens, Criminal Action No. 08-231 (EGS) (D.D.C Apr. 1, 2009), because in Stevens, the government moved to dismiss the case upon admitting misconduct in the suppression of Brady evidence. ECF No. 144 at 91. That distinction is eviscerated with the Government’s Motion to Dismiss here. Moreover, in Stevens, the government filed a mere two-page motion to dismiss. Ex. 4. Here, the Government has moved to dismiss in a hundred-page submission that includes 86 pages of new documentation that completely destroys the premise for any criminal charges. This evidence was long sought by General Flynn but withheld by the prior prosecution team and its investigators and wrongly denied to him by this court.


Amicus elides the reality of the egregious government misconduct of the FBI Agents—particularly that of Comey, McCabe, Strzok, Page, Pientka, Priestap and others who met repeatedly to pursue the targeted “take-out” of General Flynn for their political reasons and those of the “entirety lame duck usic.”

That last reference to the “entirely lame duck usic” refers to some text messages involving Strzok which, she claims, “the defense recently found that were never produced to it by the Government,” which given how the government provided the text messages probably means only that she didn’t look before. The text messages show Strzok describing a conversation with Bill Priestap about withholding the full transcripts of Flynn’s calls with Sergey Kislyak from the Obama White House to avoid having Obama dead-enders politicizing them — precisely the opposite of what her entire argument is premised on!!!.

So Powell’s new smoking gun–the thing she’s using to rile up the frothers–is proof that Strzok tried really hard to protect Flynn from precisely what she claims did him in, a politicized prosecution led by Obama people. In doing so, she presents evidence (and not for the first time) that Strzok tried really hard to protect Flynn.

Jocelyn Ballantine invents entirely new reasons why DOJ is moving to dismiss

The government’s response is the least-shitty argument DOJ has made in defense of abandoning Flynn’s prosecution, yet it still presents new problems for their case.

The government response was signed by a different team of people than have signed anything submitted thus far. Whereas only Timothy Shea — since promoted to be acting DEA Administrator — signed the initial motion to dismiss, and a team including five people from the Solicitor General’s office, including outgoing Solicitor General Noel Francisco himself, outgoing Criminal Division head Brian Benczkowski, in addition to people from the DC US Attorney’s office and career National Security Division prosecutor Jocelyn Ballantine signed the response on the DC Circuit petition for mandamus, this filing includes only the the latter three:

Whereas the Circuit filing necessarily argued a constitutional issue — the limits of a judge’s authority to deny a motion to dismiss the prosecution, this one argued an admittedly overlapping criminal one, one that makes the third different argument justifying the motion to dismiss. Significantly, this is a defense of the motion to dismiss that (unlike the original one) Jocelyn Ballantine, one of the two prosecutors on the case, was willing to sign.

Along the way, Ballantine presents new reasons to substantiate the claim that DOJ couldn’t convince a jury Flynn was guilty, including describing two things that she now claims weren’t in the notes but were in Flynn’s final 302.

According to the final FD-302, when the agents asked Flynn whether he recalled any conversation with Kislyak in which he encouraged Kislyak not to “escalate the situation” in response to the sanctions, Flynn responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” Doc. 198-7, at 6. According to the FD-302, the agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions; Flynn stated that he did not recall such a conversation. Id. The agents’ handwritten notes do not reflect that question being asked or Flynn’s response. See Doc. 198-13, at 2-8.

The final FD-302 also reports that Flynn incorrectly stated that, in earlier calls with Kislyak, Flynn had not made any request about voting on a UN Resolution in a certain manner or slowing down the vote. Doc. 198-7, at 5. Flynn indicated that the conversation, which took place on a day when he was calling many other countries, was “along the lines of where do you stand[ ] and what’s your position.” Id. The final FD-302 also states that Flynn was asked whether Kislyak described any Russian response to his request and said that Kislyak had not, id., although the agents’ handwritten notes do not reflect Flynn being asked that question or giving that response, see Doc. 198-13, at 2-8.


The interview was not recorded and the final FD-302 includes two instances where the agents did not record a critical question and answer in their handwritten notes: (1) that agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions, and Flynn stated that he did not recall such a conversation; and (2) that the agents asked whether Kislyak described any Russian response to his request, and Flynn said that Kislyak had not.

This is actually a claim Sidney Powell has made in the past, though I found notes consistent with those questions here, explicitly so with respect to the sanctions conversation:

[Update: Note that, as I first pointed out, the notes here are reversed; Strzok’s are the ones on the left, Pientka’s are the ones on the right.]

Ballantine herself was on a filing stating that, “The final interview report, just like the agent’s handwritten notes, reflect all of the above material false statements” (though that filing did not address whether Flynn was asked about Russia taking Trump’s stance into account; see especially page 5 for the extended discussion that lacks that). And Judge Sullivan agreed, ruling in December that,

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.”

Ballantine–consistent with her past signed filing–does not contest that some of Flynn’s lies are clearly included in the notes, and so doesn’t contest that the notes clearly show Flynn lying at least twice to prosecutors.

Ballantine also further develops the “new thing” that the motion to dismiss relied on to justify flip-flopping on past DOJ stances (though it is the same “new thing” presented in the Circuit filing): the new developments involving essential participants in Flynn’s prosecution:

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

While this information would definitely make it harder (but in no way impossible, not least because there are witnesses like Mike Pence and KT McFarland to Flynn’s lies) to prove DOJ’s case, as Gleeson pointed out in his brief, DOJ didn’t have to do that — they already have two allocutions of guilt, including one that affirmed Flynn could never again raise such issues! Moreover, all but one of these new “new things” happened before Flynn reallocuted his guilty plea, meaning Ballantine is in no position to argue they justify abandoning the prosecution. Plus, they conflict with the “new things” cited in the Shea motion to dismiss explaining the DOJ flip-flop.

Ballantine creates a case and controversy over whether prosecutorial misconduct occurred

Ballantine presents some things she’s willing to buy off on to argue why DOJ was right to dismiss the prosecution.

But along the way, she contested the central point in Flynn’s argument, that any of this amounted to prosecutorial misconduct.

1 Before Flynn’s 2017 guilty plea, the government provided Flynn with (1) the FBI report for Flynn’s January 24 interview; (2) notification that the DOJ Inspector General, in reviewing allegations regarding actions by the DOJ and FBI in advance of the 2016 election, had identified electronic communications between Strzok and Page that showed political bias that might constitute misconduct; (3) information that Flynn had a sure demeanor and did not give any indicators of deception during the January 24 interview; and (4) information that both of the interviewing agents had the impression at the time that Flynn was not lying or did not think he was lying.

The government subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Doc. 20, at 2. The majority of those materials, over 21,000 pages of the government’s production, pertain to Flynn’s statements in his March 7, 2017 FARA filing, for which the government agreed not to prosecute him as part of the plea agreement. The remainder are disclosures related to Flynn’s January 24, 2017, statements to the FBI, and his many debriefings with the SCO.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. [my emphasis]

Ballantine directly contradicts the suggestion made in the Shea motion to dismiss, that any of the documents turned over were new or Brady material; they’ve been demoted to “relevant to.” More importantly, she says that Flynn is wrong to claim either that DOJ said there was misconduct (it did not) or that any misconduct occurred.

Now there’s a case and controversy between DOJ and Flynn. DOJ says no DOJ abuse occurred, in this filing quite explicitly. Flynn says it’s why his prosecution must be dismissed.

While it’s not central to the issue before John Gleeson, it is something he can exploit.

Ballantine dances around DOJ’s shitty materiality claims

Particularly given how Ballantine dances around the main reason DOJ claims it moved to dismiss Flynn’s prosecution, because his lies weren’t material.

This motion was better argued all around than the Main DOJ ones, including the one bearing the Solicitor General’s name. And in numerous places, it presents actual nuance and complexity. One key place it does so is where it admits that DOJ has some motions still pending before Sullivan.

Flynn subsequently retained new counsel. Doc. 88, at 2. He then filed a Brady motion, which the Court denied. Doc. 144, at 2-3. In January 2020, Flynn moved to withdraw his guilty plea, asserting ineffective assistance of prior counsel. Docs. 151, 154, 160. The government has not yet responded to this motion. Flynn also filed a motion to dismiss the case for government misconduct. Doc. 162. In February 2020, the government opposed Flynn’s motion to dismiss. Doc. 169. Flynn repeatedly supplemented the motion after receiving the government’s response, Docs. 181, 188, 189; the government has not submitted a further filing responding to the additional allegations.

On May 7, 2020, while those motions remained pending, the government moved to dismiss the case under Federal Rule of Criminal Procedure 48(a). The government first explained a court’s “narrow” role in addressing a Rule 48(a) motion. Doc. 198, at 10 (quoting United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016)). The government then set out its reasons for the dismissal, explaining why it had concluded that continued prosecution was not warranted. Id. at 12-20; see pp. 25-32, infra. Flynn consented to the motion. Doc. 202. [my emphasis]

Already this passage presents problems, because Ballantine doesn’t explain why DOJ opposed Flynn’s motion to dismiss in February but does not now, even though none of her “new things” were new in February.

But she doesn’t mention the still-pending DOJ sentencing memorandum, submitted after all the “new things” that Ballantine laid out were already known. That sentencing memorandum not only suggested Flynn should do prison time, but it also argued not only that Flynn’s lies were material, but that Judge Sullivan should consider Flynn’s material FARA lies in his sentencing.

On December 1, 2017, the defendant entered a plea of guilty to a single count of “willfully and knowingly” making material false statements to the Federal Bureau of Investigation (“FBI”) regarding his contacts with the Government of Russia’s Ambassador to the United States (“Russian Ambassador”) during an interview with the FBI on January 24, 2017 (“January 24 interview”), in violation of 18 U.S.C. § 1001(a)(2). See Information, United States v. Flynn, No. 17-cr-232 (D.D.C. Nov. 30, 2017) (Doc. 1); Statement of Offense at ¶¶ 3-4, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4) (“SOF”). In addition, at the time of his plea, the defendant admitted making other material false statements and omissions in multiple documents that he filed on March 7, 2017, with the Department of Justice (“DOJ”) pursuant to the Foreign Agents Registration Act (“FARA”), which pertained to his work for the principal benefit of the Government of Turkey. See SOF at ¶ 5. These additional material false statements are relevant conduct that the Court can and should consider in determining where within the Guidelines range to sentence the defendant.


It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.


The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.


The defendant now claims that his false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambush-interview” to trap him into making false statements, see Reply at 1. The Circuit Court recently stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019 WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further undermined by the defendant’s efforts over the last four months to have the Court dismiss the case. See Reply at 32.


Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime.


As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

After the most recent “new thing” Ballantine cited (the DOJ IG Report), in a motion that is still pending before Sullivan, she argued that these lies were material. She doesn’t admit it’s still pending or in any other way deal with it. But Ballantine is making an argument here that conflicts with an argument she signed off on (and spent a great deal of time getting approved by all levels of DOJ) in January.

That presents problems for her claim that the motion to dismiss is the “authoritative position of the Executive.”

The Rule 48(a) motion here represents the authoritative position of the Executive Branch,

A still-pending sentencing memo she signed says Flynn’s lies were material, which conflicts with the pending motion to dismiss. Both are the still-authoritative position of the Executive.

She makes things worse by adopting only one part of Shea’s argument about materiality (though this is consistent with the DC Circuit brief). Shea argued the lies were not material, at all.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.


The particular circumstances of this case militate in favor of terminating the proceedings: Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation. Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt, the Government now moves to dismiss the criminal information under Rule 48(a).


In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI.


In light of the fact that the FBI already had these transcripts in its possessions, Mr. Flynn’s answers would have shed no light on whether and what he communicated with Mr. Kislyak.—and those issues were immaterial to the no longer justifiably predicated counterintelligence investigation. Similarly, whether Mr. Flynn did or “did not recall” (ECF No. 1) communications already known by the FBI was assuredly not material.


Even if he told the truth, Mr. Flynn’s statements could not have conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose. See United States v. Mancuso, 485 F.2d 275, 281 (2d Cir. 1973) (“Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation.”); cf. United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (noting that a lie can be material absent an existing investigation so long as it might “influenc[e] the possibility that an investigation might commence.”). Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

6 The statements by Mr. Flynn also were not material to the umbrella investigation of Crossfire Hurricane, which focused on the Trump campaign and its possible coordination with Russian officials to interfere with the 2016 presidential election back prior to November 2016. See Ex. 1 at 3; Ex. 2 at 1-2. Mr. Flynn had never been identified by that investigation and had been deemed “no longer” a viable candidate for it. Most importantly, his interview had nothing to do with this subject matter and nothing in FBI materials suggest any relationship between the interview and the umbrella investigation. Rather, throughout the period before the interview, the FBI consistently justified the interview of Flynn based on its no longer justifiably predicated counterintelligence investigation of him alone.

Shea further argued that Sullivan’s past judgment that these lies were material came before DOJ’s view on the case changed.

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

Ballatine does parrot Shea’s claim that “additional information” has emerged since Sullivan ruled.

In any event, additional information that was not before the Court emerged in the months since the decision that significantly alters the analysis.

The problem, here, is that in her filing, that’s as much a false claim as Shea’s claim to have found “new things” were. Ballantine’s “new things” was all known to the government well before Sullivan ruled.

As to materiality itself, the only part of Shea’s argument about materiality that Ballantine adopts pertains to whether she could prove it.

The government expressed concern specifically about its ability to prove materiality.


The government’s Rule 48(a) motion accordingly explained that it doubted whether, in light of those aspects of the record, it should attempt to prove to a jury that the information was objectively material.

Which, as Gleeson has pointed out, doesn’t matter given Flynn’s past guilty plea.

Perhaps because of that, Ballantine adopts a different approach than Shea did in arguing that Sullivan’s past ruling didn’t matter. She argues that only a jury can decide materiality.

But as the Supreme Court has held, determining whether information is material is an essential element of the crime that must be determined by a jury, and cannot be determined as a matter of law by a court. United States v. Gaudin, 515 U.S. 506, 511- 512, 522-523 (1995). Indeed, the materiality inquiry is “peculiarly one for the trier of fact” because it requires “delicate assessments of the inferences a reasonable decision-maker would draw from a given set of facts and the significance of those inferences to him.” Id. at 512 (internal quotation marks and brackets omitted). For that reason, the Court’s determination could not resolve the government’s concerns about its materiality case at trial.

But then she imagines what the jury might think about the materiality of Flynn’s lies that — much of the subsequent developments make clear — actually did affect the investigation into him.

Amicus makes much of the fact that a defendant’s false statements can be material even when the investigators are not deceived by them, accusing the government of asking for “the suspension of settled law for this case, but not for any others.” Gleeson Br. 46-47 (citing United States v. Safavian, 649 F.3d 688, 691-692 (D.C. Cir. 2011) (per curiam)). Contrary to amicus’s assertion (at 46-47), however, that is entirely consistent with the government’s analysis. In Safavian, the D.C. Circuit rejected a defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them.” 649 F.3d at 691. As the government recognized in its motion to dismiss, the fact that the FBI knew at the time it interviewed Flynn the actual contents of his conversations with Kislyak does not render them immaterial. See Doc. 198, at 17 (citing Safavian, 649 F.3d 688 at 691-692). Rather, the fact that the FBI knew the content of the conversations is relevant because it would allow a jury to assess the significance the FBI in fact attached to that truthful information when the FBI learned it; and, absent reason to think that the FBI’s reaction was objectively unreasonable, that would inform the jury’s assessment of the significance a reasonable decision-maker would attach to the information.

Shea’s argument was — as Gleeson made clear — legally indefensible. Ballantine’s is legally more defensible. Except that she has already argued more persuasively against herself, in a still-pending filing that is, like the motion to dismiss, the authoritative position of the Executive Branch.

Ballantine’s argument here is more persuasive then — though inconsistent with — Shea’s. Except that she’s arguing with a still more persuasive Ballantine memorandum that remains before Sullivan.

Not only is DOJ arguing with DOJ, but Jocelyn Ballantine is arguing with Jocelyn Ballantine

With DOJ’s motion to dismiss, Bill Barr’s DOJ argued against what Bill Barr’s DOJ argued in a still pending sentencing memo submitted in January. DOJ’s response in the DC Circuit mandamus petition argued against Bill Barr’s admission that Emmet Sullivan has a say in whether to dismiss the case or not. Now, Jocelyn Ballantine is arguing that DOJ’s past (but still-pending) statements about materiality conflict with its current statements.

The DC Circuit filing and this one conflict with Shea about what the “new things” are justifying such flip-flops.

But crazier still, Ballantine argues that these conflicting statements are the authoritative view, singular, of the Executive.

Ballantine has laid out a case and controversy with Sullivan here — whether her own conduct amounted to misconduct. Sullivan’s amicus, John Gleeson, may well be able to use that to argue that the many conflicting statements from DOJ make it clear there is no authoritative view from the Executive, because it can’t agree with itself — its prosecutor can’t even agree with herself — on a week to week basis.

And if there is no one authoritative authoritative view of the Executive, Sullivan will have a much easier time arguing all this overcomes any presumption of regularity.

44 replies
  1. pseudonymous in nc says:

    Why hasn’t DOJ filed motions to withdraw everything else on the docket that’s still pending and create an “authoritative view”? Because Judge Sullivan would want an explanation of why they were being withdrawn now and why were filed in the first place? Because having to do that might require ‘fessing up to a breach of local rules? Because they believe they can bulldoze through the motion to dismiss, using mandamus if necessary, and not have to clean up?

    • Pragmatic Progressive says:

      Yes, if the govt successfully bulldozes through this with Flynn it won’t matter that the record is inconsistent. DOJ is arguing that the court cannot proceed altogether because it is already over and done with.

  2. PhoneInducedPinkEye says:

    Would someone in Ballantine’s position see arguing against their past filling as their job? It seems to bother some doj, or former doj employees, more than others, when asked to help Barr mug for Trump political allies in legal jeopardy.

    • emptywheel says:

      I’m really interested in that. From what I’ve heard about her, she’s a cut-throat prosecutor, and not one that is above pushing the line. This feels like a similarly cut-throat career move, though she argued here — as she did in the reply on the sentencing memo — in such a way that she adopted the position of DOJ, but in a way that gave Sullivan all he needed to rule more aggressively.

  3. Rob Lyons says:

    The Presidential Medal of Freedom is an award bestowed by the president of the United States to recognize people who have made “an especially meritorious contribution to the security or national interests of the United States, world peace, cultural or other significant public or private endeavors”.

    I’m just an “average Joe” interested in seeing justice done (as unlikely as that may be). I check out your website every day. Remarkable and praise-worthy!!!! Thank you!

  4. vvv says:

    What are the odds Ballantine sees/is aware of/understands her conflicting positions, and is deliberately ignoring same? And why? Because she knows they are irreconcilable? Because she was so instructed? Because there is an intent for whatever reason (conscience, stall, set up an appeal) to lose?

    Seems everybody has questions!

    (I note that I was typing as Ms. Wheeler was answering just above.)

    • emptywheel says:

      High. My impression is that Ballantine is very very smart, but not necessarily the most principled.

      • vvv says:

        Not “high”, just a cuppla martinis. ;-D

        “not necessarily the most principled” is the kind of thing you might expect, some might value to some extent, in a private defense attorney, but I really hate to see in a civil servant. That is not/should not be in the job description.

        • Pragmatic Progressive says:

          It’s notable that she claims McCabe was “fired for lying” when in fact, it was a “lack of condor”; a less serious charge when “actual lying” can’t be proven.

          • Silly but True says:

            Lack of candor, two offenses under oath, for federal law enforcement, is actually a more expansive and more significant breach than simply lying. The main difference is that lack of candor also covers lies of omission as well, rather than affirmative falsehood.

            McCabe committed four separate violations for lack of candor: two of those were under oath, and actually were for lying to the OIG investigators. The other two not under oath are nearly as serious, but were not necessarily explicit lies, rather obfuscation to the initial FBI agents in advance of the OIG probe.

            • Rayne says:

              “a more expansive and more significant breach than simply lying”

              No. Lying or falsification requires affirmative intent to deceive. Lack of candor doesn’t.

              • Silly but True says:

                The reason why that’s just as bad, or worse, for FBI agents is because they must have candor in performance of their duties because they represent the federal government in legal proceedings, act as witnesses in trials, and manage informants. Therefore it’s not just important for FBI agents to not lie; their role confers an obligation to disclose relevant information even if an investigator has not directly asked about it.

                For an agent to have a lack of candor is to undermine the institution itself, which is why it is severe misconduct; a firing offense for the agency.

                • Rugger9 says:

                  Perhaps you should apply the “lack of candor” standard to AG Barr and Rosenstein as well and pitchfork them out of office. It’s clear McCabe’s case is retaliation and also has not been proven.

                  Given how many jurisdictions where it is possible to indict a ham sandwich for murder, the “no bill” is a rather clear indication of how good the case against McCabe is: it’s a complete nothingburger.
                  Try again.

            • emptywheel says:

              McCabe is ALLEGED to have done so, but is suing in part because DOJ IG withheld key testimony, which is also why DOJ was reportedly no-billed on an indictment.

  5. Desider says:

    Seems strange to argue a lie Is not a violation if the FBI knows it’s a lie. The FBI can in some case be verifying a witness’s veracity & willingness to truthfully comply in order to have certainty about details they dont know yet. A lie obstructs the ability to confidently find out anything new – re: that person or any 3rd party – their use as a reliable witness for discovery is spoiled, which for undocumented events relying on witnesses only seems a huge problem.
    I also wonder how many times the defense can keep repeating “Brady Brady Brady” for motions that have been repeatedly denied before the defense suffers some sanctions. It’s kinda like a judge refusing to allow a knife as evidence, but I keep telling the jury about the knife I wasn’t allowed to enter as evidence. Even if it’s to the judge who denied, the endless repetition takes its toll, may blur the case – boring the court to death shouldnt be an allowed tactic except as germane.

    • Desider says:

      Even odder is that Flynn’s lies and subsequent withdrawal of cooperation made him useless as a planned witness for the trial of the Turkish guy, demonstratable damage. How can the DoJ then claims that lies dont produce damage if the DoJ already knows they’re lies, aplus should at least blow a cooperation agreement out of the water (including an informal one related to Flynn’s failson.) IANAL, but this seems like basic stuff you could get (correctly) from TV.

  6. PeterS says:

    This sentence caught my eye: “While it’s not central to the issue before John Gleeson, it is something he can exploit.”

    Does Gleeson have a continuing formal role, with a right to reply, or is it just that we think he’s going to want to file something extra?

    • Pragmatic Progressive says:

      Ret. Judge Gleeson is a “friend of the court” arguing the position abandoned by the D.C. U.S. atrorney after General Barr assigned an acting D.C. U.S. attorney.

      His official role is to assist Juge Sullivan in evaluating the request for dismissal that is under consideration. He will follow the federal and local procedure rules.

      • x174 says:

        thanks Pragmatic Progressive–i too was beginning to wonder about his long-term role. i was under the impression that an amicus made just one submission to the Court.

    • Pragmatic Progressive says:

      There is a case in the E.D.N.Y. right now where the trial judge apointed a private prosecutor for contempt of court after the DOJ declined prosecution. https://theintercept.com/2020/05/20/steven-donziger-house-arrest-chevron/

      …that case is a little bit different…but they both raise the “lack of case and controversy issue” where the DOJ doesn’t prosecute. (Contempt of court proceedings are an exception because the court has “inherent authority” to protect the integrity of their proceedings.)

      There’s a million procedural options. Looking back, the D.C. circuit granted mandamus when Judge Sullivan set a schedule for discovery into the emoluments lawsuit against DJT, so there is a larger back story about the dynamic with the appeals court.

      If Flynn told 2 stories (IN FEDERAL COURT THROUGH COMPETENT COUNSEL) does the PUBLIC deserve to know which story was true?? He was the National Security Adviser to the President of the United States.

    • Pragmatic Progressive says:

      One other thing to note is that Judge Sullivan is not in any way bound by or limited to the arguments or legal positions presented by Ret. Judge Gleeson as appointed amicus (although this could change in the context of a Court appointed prosecutor for contempt proceedings)…

      DOJ’s motion recognizes this and makes considerable effort to dissuade Judge Sullivan from issuing an order to show cause why Flynn should not be prosecuted for contempt of Court separate from any decision on the motion to dismiss the charges. That said however, they key wording by DOJ in their brief is “amicus does not point to anything in the record suggesting that Flynn had such an intent.” Here, “in the record” means in the DDC case. A broader view of the facts underlying the material false statements to FBI agents and [to DOJ through his attorney] regarding the work for Turkey suggests quite strongly that Flynn did indeed act as a “part of some greater design to interfere with judicial proceedings” because he accepted the offer of Judge Sullivan to postpone his sentencing until after he cooperated in the EDVA case, yet acted deliberately to deny the DOJ the full cooperation DOJ sought in the EDVA case.

      [Page 39 of DOJ’s recent brief specifically offers:]

      Amicus contends that Flynn acted with the requisite criminal intent because “his conduct ‘was self-evidently intended to show contempt for the court.’” Gleeson Br. 69. But that is not self-evident at all. As explained above, there is no indication that Flynn pleaded guilty and then moved to withdraw his plea as “part of some greater design to interfere with judicial proceedings.” Dunnigan, 507 U.S. at 93. Amicus further contends that even if Flynn realized after pleading guilty that “he misjudged his possible sentence,” that does not permit him now “to disavow his guilty plea as a lie.” Gleeson Br. 70. But whether Flynn can now disavow (i.e., withdraw) his guilty plea is not the question. See id. (citing only decisions affirming the denial of motions to withdraw guilty pleas). Rather, the question is whether Flynn had an intent to obstruct the administration of justice under Section 401(1). Court appointed amicus does not point to anything in the record suggesting that Flynn had such an intent.


      The reason this is key because the DOJ’s motion implicitly circumscribes their position to the judicial record only in DDC as opposed to the larger guilty plea which included the false statements regarding non-charged FARA violations regarding the $600,000 contract for undisclosed work through a proxy on behalf of the government of Turkey, charges which Flynn avoided prosecution for in EDVA. In that case, after Judge Sullivan deferred sentencing in DDC so that Flynn could continue to cooperate with the government’s prosecution in EDVA, the cooperation broke down and the DOJ sought leave of court to amend the judicial record and name Flynn as an unindicted co-conspirator in the EDVA case.

      On July 8, 2019, in EDVA, after Flynn was allowed to intervene in the EDVA case to suppress communications between him and his prior counsel, his new counsel, Ms. Powell made some arguments that are the polar opposite of the positions she now argues now in the DDC case. Notably, the July 8, 2019 submission in the EDVA case is indeed signed by Sidney Powell herself.


      [July 8, 2019 “memorandum…to enforce the government’s judicial admission…”]

      “The government, which is ‘not an ordinary party to a controversy’, should be bound by the judicial admissions it made in open court…”

      “This is not a mere ‘Correction to the Record.'”

      “The Government Should Be Legally Bound by Its Judicial Admissions and Repeated Representations…”

      “…the government’s reversal also … may have ramifications for Mr. Flynn beyond this trial.”

      “The government’s ‘about-face’ is not a ‘correction’ of the record. There is no misstatement or typographical error which can simply be ‘corrected.’ The prosecutors made deliberate and affirmative admissions to counsel and this Court.”

      “The government’s representations and clear statements constituted a judicial admission and are binding. A judicial admission or stipulation is ‘an ‘express waiver made … by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact.’ Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013) (citing 9 J. Wigmore, Evidence § 2588, p. 821). Although a judicial admission comes most often as ‘a formal concession in the pleadings or stipulations by a party or counsel], ‘Martinez v. Baily’s Louisiana, Inc!., 244 F.3d 474,476 (5th Cir. 2001) (citation omitted), it can be made orally in the course of litigation. The determination centers on the knowledge and intent of the party making the admission, thus ‘[a] lawyer’s statements may constitute a binding admission of a party[ ]’ if the statements are ‘deliberate, clear, and unambiguous[.]’ Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 347 (4th Cir. 2014) (quoting Fraternal Order of Police Lodge No. 98 v. Prince George’s County, MD, 608 F.3d 183, 190 (4th Cir. 2010)).”

      “United States Attorneys are fully empowered to bind the government, which authority is ‘incidental to [their] statutory authority to prosecute crimes.’ Thomas v. J.N.S., 35 F.3d 1332, 1340 (9th Cir. 1994).”

      “In this case, the colloquy between this Court and the government was very clear. Not only did the government, in response to a direct question, unequivocally state that Mr. Flynn… but in the course of further questioning on the nature of the testimony Mr. Flynn would give, the government reiterated, ‘…Mr. Flynn…’ Counsel could not have been more deliberate or clear. Nor was the question one that the government had not had time to consider, since Mr. Flynn’s…status… must have been explored in considerable depth in the course of the last few months. The theory of estoppel generally is ‘intended to protect the integrity of the judicial system and to prevent a party from ‘playing fast and loose’ with the courts to suit the party’s purposes.’ 6 Handbook of Fed. Evid. § 801:26 (8th ed.). Because counsel’s clear representation to the court was knowing and wholly unambiguous, it should be binding.”


      While it is the obligation of any defense attorney to protect their client zealously, it would be great if Judge Sullivan or the appointed amicus could hold the former National Security Adviser’s feet to the fire regarding why he believes he deserves such special treatment.

      How can the DOJ only be wrong when it is disadvantageous to Flynn?

  7. x174 says:

    mt–i really enjoyed reading your analysis–fun, thought-provoking, intriguing. one of the excepts that jumped out at me was “Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred. . .” Seemed quite clear to me that the word “government” could be replaced with Donald Trump: “[Donald Trump] does not have a substantial federal interest in penalizing a defendant for a crime that [he] is not satisfied occurred.”
    It is quite amazing to see the extreme lengths that Donald Trump forces his minions to go in servicing his every desire. The insane multi-layered contradictoriness of the arguments all constructed around a series of lies within lies devoid of any meaningful respect for logic, law or factual evidence reeks of Donald Trump. Barr’s tenure in the DOJ had transformed this once esteemed institution into a festering fly-covered mountain of stinking fish guts.
    I do wonder just how many of those involved in this flynn do-over debacle will themselves become legally exposed as a result of their involvement in perpetuating this patently moronic fraud, Donald Trump, upon the Court.

  8. FengWang says:

    Is the term ‘reallocution’ being used here as a term describing more than one allocution, or aS a renouncement of a prior allocution?

  9. Mitch Neher says:

    I know nothing about how anything works. Nevertheless . . .

    May I assume that the FBI conducted a security-clearance background-investigation of Lt. Gen. Flynn after he was selected for the National Security Adviser post?

    If so, then . . . Would Flynn’s conversations with Kislyak have been within the scope of such a background investigation?

    And, if so, then . . . Would making false statements to the FBI during such a security-clearance background-check still have been a crime?

    P. S. I have no idea how “materiality” works, either.

  10. BobCon says:

    Since so much of Flynn’s defense is PR focused rather than legally sound, I’m curious whether the attack plan on Bolton and the defense of Flynn cause problems for each other.

    In terms of PR, Trump doesn’t want to give Biden the chance to say he screwed up in the hires of two NSAs, so it seems like the harder he goes after Bolton the more he has to go out on a limb for Flynn. But it sounds like the Flynn legal strategy involves a lot of deflection, compartmentalization and minimalization, which wouldn’t jibe with a full on endorsement of Flynn.

    I realize Trump has no problem with contradiction, but I don’t see how trying to resolve this now helps him focus on more productive priorities. He wants to be making contradictory attacks in these last few months, not contradictory defenses.

    Which makes me wonder if he thinks he can throw Flynn under the bus and get it over with.

  11. SteveL says:

    I had thought that Ballantine’s inclusion on pleadings after the May 7 Shea motion to dismiss was largely a function of the fact that she (unlike Shea, and perhaps unlike Sherwin & Koh) has rights to make filings to the DC district court’s electronic filing system, and that this did not necessarily reflect substantial participation as an author of the pleadings. Her name is on the filings, and so bears responsibility, but this does not mean she wrote them.

    • bmaz says:

      Meh. US Attorneys and AUSA’s need only be licensed members of a bar somewhere. After that, they can practice fully without regard to the local jurisdiction’s licensing. It is good for the DOJ to have at least one local counsel on a team because it keeps that local district’s judges comfortable that their local procedures will be followed (and believe me, they differ from judge to judge and district to district). But if you are an AUSA, you don’t have to be licensed in a particular district to practice and file there. File a notice of appearance certifying you are licensed somewhere and a DOJ employee, and you are good to go.

      • Silly but True says:

        I recall probably the most visible expression for this was in the first Manafort hearing in Ellis’ court.

        Ellis took the time to specifically acknowledge and welcome Manafort team’s prosecutor Uzo Azonye as being part of local bar and providing the local representation for the government; I seem to recall Ellis made exactly that point about importance of familiarity of local rules.

  12. Peterr says:

    Moreover, all but one of these new “new things” happened before Flynn reallocuted his guilty plea, meaning Ballantine is in no position to argue they justify abandoning the prosecution. Plus, they conflict with the “new things” cited in the Shea motion to dismiss explaining the DOJ flip-flop.

    I’m waiting for a footnote as Sullivan deals with this. “Following Inigo Montoya1, the government may wish to improve its understanding of the word “new,” as much of this is anything but as I have ruled previously.”

    1 The Princess Bride, (1987), https://www.imdb.com/title/tt0093779/quotes?item=qt0482717.

  13. TimH says:

    One thought. Could Flynn be asked by Judge Sullivan under oath whether he was involved AT ALL in the DOJ’s attempt to dismiss. If he says, well, sorta, kinda, ok, yes… does that violate his allocution of guilt that affirmed Flynn could never again raise such issues?

  14. soothsayer says:

    Question for any and all – what are your thoughts on the many ‘private’ intel companies winding in and out of 2016, many with foreign connections, and specifically how Flynn or some other current or ex Admin folks may have some connections to them or their associates?
    Also, why would none of this be in anything the DOJ has brought to bear so far? thoughts on if possible that any of this is all part of an ongoing counterintelligence investigation? Specifically thoughts on some of this reporting at forensicnews.net (article below) on Flynn and these characters? I really have no idea, but it is interesting that the Senate Intel committee sought interviews with the main character mentioned in the article below, very curious about what is all going on here.


    Also, I would discuss this on FN, but they don’t have a comment section like here, plus I also respect and know there is thoughtful discussion here at EW, as well that this information may somewhat relate to Flynn and others and all their potential activities around 2016 and after, even if not mentioned in the above current DOJ activity. Just hoping for peoples thoughts?

    • LL of NC says:

      NSO keeps popping up in differing investigations worldwide, including the use of their Pegasus Software for murdering of journalists in Mexico. The Mike Flynn angle is new for me though.

  15. Rugger9 says:

    While noting the observations regarding DOJ employees above, one wonders how the DCC and SCOTUS will feel about how much legal dreck they are willing to tolerate when it is clear the only reason for serving it up in the first place is to cover up for DJT. Kavanaugh, Alito and Thomas will have no limit, Gorsuch is probably a lost cause but I cannot see Chief Justice Roberts being OK with this concept when reviewing his other rulings. It doesn’t look to me like he would like being remembered for the bitter end of the rule of law while he’s OK with nibbling around for exceptions here and there.

    Hopefully EW’s analysis makes it into Judge Sullivan’s ruling about the contradictions not being the result of actually new evidence. That alone makes it clear DJT is channeling Louis XIV (L’etat cest moi).

  16. Savage Librarian says:

    Don John Oblivion

    Less desirable than chlamydia,
    We look forward to being rid of ya,
    Replaced by someone wittier,
    Who can understand an encyclopedia.

    We’re so tired of all the hideous
    acts of yours and all your idiots,
    Who can’t cease to be invidious,
    With a side order of supercilious.

    If we had to design an insignia
    it could only embody a
    monster who is totally pitiless,
    throwing democracy under a city bus.

    Now past tense is already a
    topic for a clear eyed committee of
    long term plan sensible affiliates
    establishing an ethical quotidian.

    Less desirable than chlamydia,
    We look forward to being rid of ya,
    Replaced by someone wittier,
    Who can understand an encyclopedia.

  17. GKJames says:

    Why is the representation of something as “new”, when the existing record shows that it isn’t, not a fraud on the court and, therefore, by itself cause for fact-finding by the trial court under the leave-of-court requirement under Rule 48?

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