Trump Tried to Claim Privilege Over a Document Flynn Claimed to Not Remember
I’m beginning to read the SSCI Russia Report. I’m sure I’ll have a running slew of posts as I go.
SSCI was quite peeved about Trump’s expansive claims of Executive Privilege, extending even to its Transition members (SSCI noted that Obama officials were all willing to share details of communications directly with Obama).
One example of a crazy-ass privilege claim came pertained to Mike Flynn’s aide during the Transition, Sarah Flaherty. The White House claimed privilege over a document and provided this description of the document to the committee, which omitted even that it pertained to Russia.
One of these documents was described to Committee counsel as an undated eight-paragraph memorandum with a sticky note dated January 9, 2017, from Flynn to McFarland stating: “re: [a foreign nation] for your consideration.” The paragraphs were further summarized as follows:
(U) 1: Discussion identifying foreign government internal personnel movements.
(U) 2: Recitation of the author’s assessment of the foreign government’s view of areas ,of long-term strategic concern shared with the U.S.
(U) 3: ·Assessment of the foreign government’s view concerning the effect ofpost-1992 U.S. policies for both countries.
(U) 4: Discussion of the author’s view of challenges facing the President (broad), especially in the national security area:
(U) 5: List of issues for the U.S. involving the foreign government and the author’s observation regarding the degree of connection or non-conriection to the foreign government:
(U) 6: Expresses a need for a plan to make progress on strategic matters, not specifically tied to the foreign government.
(U) 7: Author’s assessment that the foreign-government and the people of the foreign nation have substantial goodwill towards the President-elect.
(U) 8: Suggestion/proposal for possibilities of engagement with the foreign government. 32
Don McGahn claimed it was privileged because it had been prepared for a top official and concerned foreign policy.
But SSCI figured out what the document was. It was a memo provided by Robert Foresman, who adapted it from one an oligarch’s associate did.
Based on the description, the Committee identified the memorandum as- a document already in its possession, produced by Robert Foresman-who· was not a member of the Campaign nor the Transition Team-and written to Flynn.34 The Committee also knew from its investigation that Foresman had adapted a substantial part of the memorandum from another document shared by Allen Vine, who is an associate of the Putin-linked Russian oligarch Suleiman Keriniov.35 The Committee’s position was that the document could not be privileged: it was not drafted by a member of the Transition Team and had, in part, originated with a close associate of a Kremlin insider. Committee counsel informed the WHCO of the general contours of these facts (though not specific names or the details of how it had acquired the information). WHCO subsequently dropped its claim of potential executive privilege and produced the document to the Committee.
What makes this expansive claim of privilege all the nuttier is when Mueller asked Flynn about the two meetings he had with Foresman, in what was the last known question Mueller (as opposed to EDVA) asked of him, Flynn claimed he didn’t remember either one.
It’s really not clear Flynn ever really cooperated with Mueller. Which is, I guess, why Billy Barr is going to such lengths to ensure he’ll be rewarded for not doing so.
Flynn will not until he is forced to by President Biden. Then, I would expect he will sing to save his and Junior’s arse. But, as long as AG Barr runs DOJ, Flynn says nothing.
It will be interesting to see what Flynn will get for wingnut welfare after being such a good soldier for DJT.
As far as the privilege claims go, that will also need to be quantified because of the creep in what qualifies. Apparently we now have reached something akin to thoughtcrime where even a sixth-level connection to DJT means a communication is “privileged” regardless of the topic or circumstances. So, Pelosi and the rest of the Congress needs to lay down the law on privilege, citing for example Nixon v US on the tapes to spell out what is allowed privilege and how it must be invoked. Otherwise the it should state the presumption is that no privilege exists that is legally binding.
Marcy notes on twtr that some of the people in a joint defense agreement with Donald Trump – the contract in which a client consents to sharing A-C privileged information – were not told by their lawyers they were in it. K.T. McFarland, for one.
If the client doesn’t know about a disclosure, it can’t consent to it. To be valid, the consent has to precede the disclosure. That makes the disclosure wrongful and an intentional serial breach of client confidentiality. That’s the sort of malpractice that ought to land a lawyer in so much hot water, he should be reaching for a bib and the melted butter.
It is just nuts. If you don’t know you are in a JDA, you are not really in one, your lawyer is just unethically disclosing confidential information.
Raises a few questions. Was the JDA valid at all? With respect to whom? For those not in it, did they or their lawyers lie about being in it. Did they lie to federal investigators (a felony) by claiming they were contractually prohibited from talking? The questions proliferate like crumbs on Donald’s bedclothes.
Cheetos crumbs? Anyhow, one of the things I keep reading about here and elsewhere regarding the slipshod CYA lawyering is that it’s a feature of this WH, not a bug.
However, as our legal team has pointed out here, there are reasons for following the process to avoid missing things and to protect against future litigation by whatever immunities and privileges would apply. However, when steps are bypassed then the conditions to access said protection are not present and the person is open for consequences. That’s why I asked the question before about the ability of the protesters to litigate against Chad Wolf, for example, since he did not have the authority to order the DHS goons to do the renditions and other abuses of power because his term had expired several weeks before.
Wow. That is wildly unethical.
You didn’t notice this happening in real time? It was pretty clear when these claims were being made that lawyers were making decisions for their clients without informing them of such decisions.
Here are the starts of EW’s threads so far:
emptywheel: “SSCI calls bullshit on Papadopoulos’ claim not to have told the campaign about Russia’s coming efforts. [link, screenshot]”
emptywheel: “Starting a new thread on the Hack-and-Leak section.[link] The preface and Manafort stuff is here: [links]”
i look forward to being able to compare excerpts from michael cohen’s book (due out in early october) with some of the statements made in the SSCI Russia Report by various senior trump cabinet officials, especially hope hicks, who seems up to her ears in spreading disinformation about what actually took place at various high level meetings, e.g., footnote 2657 (p. 421): “Cohen’s admission that he told Hicks and Lewandowski, which is consistent with Hick’s email to Cohen, conflicts with what Hicks told the Committee. Hicks claimed that she didn’t recall any discussion of a potential meeting between Trump and Putin .. Hicks further explained Cohen’s public comments on Hannity by claiming Cohen was fabricating the possibility that a Trump-Putin meeting might occur, stating that “Michael says a lot of things publicly that aren’t accurate.” Hicks Tr., p. 23.”
It’s been painfully obvious that Hope Hicks is way too pretty to be investigated for or charged with anything; Hicks is not only less window dressing than more camouflage but also an active operative in Trump machinations.
Misogynistic comments aside, your point about misdirection are dead on.
Sorry for a dumb question, but: if Joe Biden becomes president in January, can he overrule the privilege claims of his predecessor?
The answer is complicated. Under the Presidential Records Act – which Trump probably violates hourly – the documents are public records. But during a transition period, a former president has considerable authority over his records for several years, as do agencies that deemed some of those documents classified.
The new president can’t just release them. She could, though, immediately revise earlier policies, procedures, and supposed or actual executive orders. But that takes time, including learning about WTF this guy did or authorized.
Trump will assuredly make the transition as much of a nightmare as he can. He will also litigate like hell to prevent any release of any of his presidential documents. Just look what he did to keep his high school records confidential. So, don’t expect much to be released any time soon.
But does the new president have access to those records? And even if they lack the power to make them public, could they voluntarily provide them to Congress or a criminal investigation?
They’re supposed to be transferred to the National Archives. A shorthand version is that the former president – meaning his staff – has first crack reviewing them before outside researchers are allowed to use them. That’s a period of years.
Many documents would also be in other hands, relevant agencies, other parties involved with them, etc. Many should also be communicated via the transition process. But I expect Trump will show such bad faith during a transition that it would not be appropriate to rely on anything he does or says about it.
I don’t know how that would intersect with the criminal process. Document searches usually require having probable cause, knowing what records to look for and why, who their custodian was supposed to be, etc. Trump’s courtiers are already famous hiding things by misclassifying and misfiling them. No quick and easy route, except for documents copies of which are already in other hands.
Accessing the records of a prior president is also subject to executive order. Bush Jr issued EO 13233, in effect, to delay release of his dad’s records, some of which related to Iran-Contra. That order also delayed release of vice presidential records, which conveniently anticipated protecting Dick Cheney’s documents. Barack Obama issued EO 13489, essentially revoking 13233 and restoring the earlier procedure.
Shrub talked about secret EOs and revoking or modifying them verbally, without a written record or public notice. (Hence, EW’s famous line about “pixie dust.”) Trump has talked recently about his double secret powers to break laws. One more thing, then, for Biden’s legal team will be to comb through EOs to see what needs to be changed or rescinded. Biden just needs to accept that it is what it is and staff up for this extra Trump crap. If he needs a budget, Pelosi and Schumer should give it to him.
my favorite sentence in the SSCI so far (it’s also in the Mueller Rpt) is on page 773:
“Knowing that Flynn continued to lie to White House officials and now the FBI about
his contacts with foreign officials, Acting Attorney General Sally Yates informed White House Counsel Don McGahn on January 26, 2017, that Flynn’s lack of honesty about his interactions with Russian officials put Flynn at risk of compromise by Russia.” 5052
The Foresman revelations are interesting, considering his link to Gorkov (VEB) and Kushner’s meeting with Gorkov in mid December 2016.
All the more interesting given Foresman’s tight relationship with an ex-Stasi guy who has Putin’s ear. This Reuters article from last year, about a lawsuit filed against Foresman, includes lots of interesting background. (A UK judge ruled in favour of Foresman et al a few months after this article was published. I’m not surprised, as I have a jaded view of UK justice where Russian $megamillions is concerned.)
So exactly what knowledge of the specific case outcome do you have to justify your view of justice in the English courts? By the way I have none, but I can see this was a dispute amongst a bunch of characters all involved in some way in the problem. English courts are however disinclined to meddle, in the absence of criminally provable fraud, in disputes amongst what a High Court Judge once memorably described as “warring bankers”. That seems a pretty sound view to me.
Heh. Let the bankers make war on each other! I am good with that.
“a crazy-ass privilege came pertained to Mike Flynn’s aide, Sarah Flaherty. The White House claimed privilege over a document and provided this description of the committee”
maybe: “privilege claim” and “to the committee”?
Yup. Fixed it. Thanks.