Though the full DC Circuit sent the Mike Flynn case back for Judge Emmet Sullivan to rule on DOJ’s motion to dismiss, at least some of the judges on the panel seemed to believe only something extraordinary — like the judge witnessing bribery in his courtroom — would merit refusing to grant the motion to dismiss.
Nora Dannehy, in resigning from the Durham investigation Thursday night, just gave Judge Sullivan that extraordinary reason.
The Hartford Courant story breaking the news provides a one detail explaining why.
First, perhaps to explain the non-political aspect of why Dannehy quit, the report describes that she was told the assignment would take six months to a year when she first came back in March 2019.
Dannehy was told to expect an assignment of from six months to a year when she agreed to join Durham’s team in Washington, colleagues said. The work has taken far longer than expected, in part because of complications caused by the corona virus pandemic. In the meantime, team members – some of whom are current or former federal investigators or prosecutors with homes in Connecticut – have been working long hours in Washington under pressure to produce results, associates said.
That would have put whatever pre-determined conclusion Billy Barr expected between September 2019 and March 2020. Barr presumed he’d get that outcome, then, by the time around February 1 when he appointed Jeffrey Jensen — to review the Flynn prosecution and come up with some excuse to dismiss it.
When Catherine Herridge interviewed Barr in the wake of the motion to dismiss, Barr specifically said that he appointed Jensen when he did even though John Durham was investigating the very same things. He had to appoint Jensen, Barr explained, because of some filings in the case meant “we had to sorta move more quickly on it.”
President Trump recently tweeted about the Flynn case. He said, “What happened to General Flynn should never be allowed to happen to a citizen of the United States again.” Were you influenced in any way by the president or his tweets?
No, not at all. And, you know, I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and ’17. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.
And that is part of John Durham, U.S. Attorney John Durham’s portfolio. The reason we had to take this action now and why U.S. Attorney Jeff Jensen came in was because it was prompted by the motions that were filed in that case. And so we had to sorta move more quickly on it. But John Durham is still looking at all of this.
This is one particular episode, but we view it as part of a number of related acts. And we’re looking at the whole pattern of conduct.
Jensen, who was a firearms prosecutor, with no experience in counterintelligence, did truly shoddy work. At one point, he handed over some notes from Peter Strzok, claiming not to know they had to have been written on January 5, which caused the usual frothers to invent a new conspiracy theory out of them. Either he knew the overcall so poorly not to know the context, or he was just feeding the trolls. You decide.
He also made his decision without waiting to learn from Bill Priestap that the purpose of the Mike Flynn interview is precisely what every single piece of evidence said it was, to see whether Flynn would tell the truth about his calls with Sergei Kislyak. Instead, the decision came just before Covington and Burling would have had an opportunity to describe all the times Flynn lied to his lawyers in the process of submitting a FARA filing that still hid that he knew he had been working for Turkey.
In the second hearing before the DC Circuit, Jeff Wall revealed that the reason a hearing into DOJ’s reason for the motion to dismiss would do irreparable harm was because Billy Barr had a secret reason for dismissing the case, one pertaining to “non-public information from other investigations.”
The Attorney General sees this in a context of non-public information from other investigations.
[snip]
I just want to make clear that it may be possible that the Attorney General had before him that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.
[snip]
It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.
[snip]
If all we had to do was show up and stand on our motion, no, we’ve already said that to the District Court.
The revised explanation prosecutor Jocelyn Ballantine offered for the motion to dismiss says that key witnesses, including Strzok, have been discredited (though as John Gleeson noted in his reply brief, her filing also relied on Strzok’s expertise).
All of which provides a good deal of evidence that Barr’s plan was to use Durham’s results to say that Mike Flynn shouldn’t be prosecuted (not even for selling out the country with Turkey). When those results didn’t come in on time, Barr told Jensen to go dig up evidence that had already been shared and reviewed by DOJ IG and the Durham inquiry, claim it was new (when much of it wasn’t even new to Judge Sullivan), and based on that, flip-flopped off of DOJ’s previous support for prison time.
Yesterday, Dannehy made it clear that the results of the Durham inquiry have also been pre-determined. (Though I half wonder whether the Durham team reviewed Peter Strzok’s book, found ready explanations to questions that neither HJC/OGR nor SSCI bothered to ask about the investigation — most likely about how the team chose four targets — and realized they were chasing hoaxes invented by Fox News.)
There’s is increasing evidence that Billy Barr moved to dismiss Flynn’s prosecution based of the results he is demanding Durham produce.
Barr may still get Durham to produce the results he has demanded. But that may not come before Judge Sullivan has an opportunity to ask about it.