On a Key Issue in Mike Flynn’s Case — which FBI Agent to Believe — DOJ Argued against DOJ

The epic five hour hearing in the Mike Flynn case just wrapped up.

The most notable events, one which may utterly sway Judge Sullivan’s opinion, were two details that would give Sullivan reason to say this is the exceptional case where he should not grant the motion to dismiss.

The first was Sidney Powell’s admission that she has spoken to the President about this case, and also spoken with Trump’s campaign lawyer, Jenna Ellis, about it, the latter apparently more than once. Powell tried to claim Executive Privilege for her conversation(s) with the President about the case, until Sullivan pointed out the sheer absurdity of that. Powell was never asked why she was speaking to a lawyer, Ellis, whose job it is to make sure the President doesn’t break any campaign finance laws about this case. Still, those admissions, handled with all the leaden aplomb that Powell exemplifies, will provide Sullivan ample basis (on top of Trump’s tweets and everything else) to prove that this was all politicized by the President.

The other detail that might really sway Sullivan was the judge’s mention of Aitan Goelman’s letter informing Judge Sullivan that someone — and Goelman did not speculate on who might have done this — altered the notes of his client. Sullivan said he was “floored” when he read the letter.  Later on, Powell accused Strzok of being the dirtiest FBI agent of all time. Some other things make me wonder — though this would make the logistics rather interesting — whether Powell was the one who altered the notes. In any case, Sullivan ordered that someone authenticate the filings submitted to the court.

Judge Sullivan was already bugged by the letter Sidney Powell wrote to Billy Barr asking that he do all the things he subsequently did, notably appoint a lawyer to review the entirety of the prosecution. The confirmation that Powell has been personally lobbying Trump’s (!!!) campaign lawyer for intervention seems to seal the proof that this is political.

Still, perhaps a more substantive problem with the pro-Flynn argument is that DOJ’s two representatives (Ken Kohl for the DC US Attorney’s Office) and the Solicitor General’s counsel, Hashim Mooppan) contradicted each other on a key issue.

Mooppan repeatedly claimed, “what if it were true that this was a witch hunt”? He relied, significantly, on two things. First, Bill Priestap’s notes clearly recording that FBI did the interview to figure out whether Mike Flynn would tell the truth.

Rather than focusing on what Priestap and every witness confirmed in real time and since was the purpose of the interview, Mooppan instead focused on Priestap’s notation of the debate before this, about whether they just wanted to get Flynn to lie. As John Gleeson pointed out, though, that would not make Flynn abnormal at all. That happens to defendants all the time. But in fact, Gleeson further noted, that’s not what happened; Peter Strzok and Joe Pientka actually cued Flynn with his own words to make sure he had an opportunity to fix the record, and Flynn did not do so. Moreover, all other witnesses said the same thing Priestap did: the point of the interview was to see if Flynn would tell the truth.

Plus, there’s a real problem with Mooppan’s reliance on Priestap’s notes. As the NYT reported, DOJ rushed to move to dismiss the case while Priestap’s 302 was being finalized.

Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan. They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court.

The department’s motion referred to notes that Mr. Priestap wrote around the bureau’s 2017 questioning of Mr. Flynn, who later pleaded guilty to lying to investigators during that interview. His lawyers said Mr. Priestap’s notes — recently uncovered during a review of the case — suggested that the F.B.I. was trying to entrap Mr. Flynn, and Attorney General William P. Barr said investigators were trying to “lay a perjury trap.”

That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case. He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.

The department’s decision to exclude mention of Mr. Priestap’s interview in the motion could trouble Judge Sullivan, who signaled late on Tuesday that he was skeptical of the department’s arguments.

In spite of its ability to turn Bill Barnett’s 302 around in a week, DOJ has never disclosed Priestap’s 302 debunking this claim to Judge Sullivan. These notes don’t say what Mooppan falsely claimed to Sullivan they did. And that may become more clear in days ahead.

The other thing Mooppan relied upon, repeatedly, was the claim that Pientka and Strzok didn’t believe Flynn had lied after they interviewed him (he also relied on a Jim Comey comment, made without knowledge of all the evidence that FBI subsequently gathered, that corroborated the evidence that Flynn had lied). Except that’s not what they said (and some of the texts that DOJ has released make this clear). They believed Flynn either believed what he said (though they’d get proof later he did not), or that he was just a very accomplished liar.

Meanwhile, Ken Kohl, who was named Acting Principal AUSA at around the same time as this motion to dismiss, and who seemed genuinely ignorant of key details of the case but nevertheless wanted to claim that DC USAO wasn’t acting politically (Roger Stone’s case did not come up), said a number of things that conflict with what DOJ has already said (including that any of this was Brady).

Significantly, however, he seemed really impressed with Bill Barnett’s 302, perhaps because he doesn’t know the case well enough to know how many glaring contradictions there are in the 302 (which makes me wonder whether he was a source for WaPo’s supine treatment of the interview). Kohl talked about all the claims — belied by actual primary documents, basic logic, and gravity — Barnett made that don’t hold up to scrutiny.

The question of whether Bill Barnett sent pro-Trump tweets on his FBI phone — making him the mirror image of Peter Strzok — never came up in today’s hearing.

But John Gleeson did note that Barnett had none of the doubts that Mooppan claimed (falsely) that Strzok and Pinetka had.

That means, ultimately, DOJ was arguing against DOJ.

Mooppan claimed that Strzok and Pientka’s alleged doubts that Flynn lied — refuted by documents already shared with Sullivan — proved DOJ had to dismiss the case. Kohl, meanwhile, claimed that Barnett’s 302 — which showed he had absolutely no doubt that Flynn lied to the FBI — proved DOJ couldn’t prosecute the case.

There’s not actually a controversy here: At least Strzok and Barnett agree that Flynn lied, which should be all it takes. (Indeed, Barnett could testify that Flynn did lie, if DOJ needs an aggressively pro-Trump agent to put on the stand.)

But the Solicitor General’s office relies on the agents who said that Flynn was a good liar and DC USAO sides with the agent who states clearly that Flynn lied.

John Gleeson has noted that DOJ can’t keep its story straight from week to week. In today’s hearing, they couldn’t even keep their story straight from lawyer to lawyer.

20 replies
  1. klynn says:

    Great posts and great live coverage today. You are a national treasure EW!

    While I imagine Marcy is asleep, and I do not mean to come off dismissive, but I bet that Powell’s “crazy” statements today could be used as a drinking game for the debate to see how Trump tries to work the “hearing propaganda” into his responses. Then again, managing a “high score” in said drinking game just might be evidence on the Powell-Ellis buddy time.

    “John Gleeson has noted that DOJ can’t keep its story straight from week to week. In today’s hearing, they couldn’t even keep their story straight from lawyer to lawyer.”

    I want this on a t-shirt! May need to start a line of EW gear of her perfect quotes.

  2. flounder says:

    Jenna Ellis did a facebook post on May 13th about Powell. They were also both on “PowerDown Media” on June 29th, but I don’t think this at the same time. Ellis also did an op/ed on May 20th about the case and Powell. I’m guessing the they talked at least once in May. I wonder what else was going on at that time?

  3. Rugger9 says:

    I really cannot see Judge Sullivan being inclined to grant the dismissal now, especially as EW noted all of the docs that DOJ conveniently withheld from his consideration. So while he made a point today that this is not an exact parallel to Stevens, he still harbors a healthy skepticism of DOJ motives this time around.

    There is also Judge Sullivan’s repeated reminder that this is not a rubber-stamp request, given where Flynn is in the case process. All of these sleazy machinations at cross purposes will also not play well for the upcoming (likely) en banc review at the DCC, but SCOTUS might weigh in (only four needed to grant cert) to save DJT’s and Flynn’s tail here. That would help the Ds decide to pack the court.

    • bmaz says:

      The en banc at DCC has already been completed. That is how the case got remanded back to Sullivan. If he denies the motion, the next step is sentencing, not an automatic mandamus trip back to the Circuit. Anything different than that is an absurd crock of shit.

      • Rugger9 says:

        I’m pointing to the almost inevitable appeal by Flynn after the sentence is handed down. That will follow the sequence we saw for the mandamus. I should have been clearer.

      • Peterr says:

        If Sullivan denies the motion, would DOJ immediately appeal and seek to have the appeal heard before sentencing takes place, or would Sullivan deny the motion and then in his next breath say “I’m ready to proceed to sentencing. Would the defendant please stand?”

        • bmaz says:

          I do not know. The whole thing is batshit crazy. If I had to bet, I think Powell will try another mandamus, as ludicrous as that is legally.

        • Rugger9 says:

          If I understand things from today correctly, there was one more hearing because of the late submissions by DOJ and also to account for Strzok’s lawyer’s letter. However, I would think that once Judge Sullivan has that sorted out to his satisfaction, he will sentence or dismiss immediately. I’m pretty sure he has his idea about what he will do with a couple of contingency options (if X then we do Y). This assumes no more Friday dumps or DOJ interference.

          At that point we’ll see how Judge Sullivan rules but I would expect sentencing.

  4. Peterr says:

    Judging from Marcy’s livetweeting, it almost seems as if Gleeson was really enjoying himself — and it’s no wonder why when you think about it.

    Imagine being a judge and having to sit in silence while defendants spin the most incredibly stupid stories in your court, and you have to let them have their say without slowing them down.

    Imagine having to sit in silence while lawyers present the most obviously boneheaded legal theories in your court, and you have to sit silently and give the impression you are taking them seriously while inside your head you are drafting a letter asking a law school to withdraw someone’s JD.

    Imagine having to sit in silence like this over the course of 22 years. Imagine how many callouses you get on your tongue from biting it, how many dents you put in the arms of your chair from gripping them in pain, and how many writing implements you broke in frustration over all that time.

    And then, one day you get a call from a colleague, asking you to act as an amicus in his court, as he sorts through some very odd circumstances where the DOJ suddenly joins forces with the defense.

    And then imagine the joy that Gleeson must have felt today, when he realized he didn’t have to hide his contempt for outrageous conduct, nor his disdain for people talking out of both sides of their mouth. He got to speak up, in open court, and call bullshit on the massive piles of steaming manure coming from both the DOJ lawyers and Powell.

    I think Gleeson went home a very happy man tonight.

    • bmaz says:

      Gleeson still went home a compromised goat, from his own previous acts. He was a terrible messenger, and was from the start.

      • vvv says:

        I admit to a hearty chuckle when Sullivan asked and Gleeson responded that they hadn’t talked about the case in advance.

        In my mind, he more or less auditioned in writing (if unintentionally), as Barr did (intentionally), for his latest employment.

  5. SaltinWound says:

    I think they will go for mandamus again because some of the judges practically invited them to come back the last time they decided. A lot of their reasoning was about the timing being premature. Sullivan hadn’t really done anything yet. It was pure speculation at that point. Now it won’t be.

    • bmaz says:

      What you do not seem to get is that mandamus would be just as ludicrous and improper now as it was then. Mandamus is for situations where there is no other formal remedy available, but there would be. It is called an appeal.

      You, and a lot of others have bought into the bullshit that an aggrieved party can just magically chant ,mandamus!!, sprinkle a little pixie dust and be on their way. That is simply not how it works, at least not how it is supposed to work. When Sullivan “does something”, the remedy is appeal if the defendant is aggrieved.

  6. SalrinWound says:

    That’s interesting. I listened to the entire en banq hearing. Were the judges being disingenuous when they focused on mandamus being premature? To what end?

    • bmaz says:

      I don’t give a damn what they said, or you thought they said, it is ludicrous. If it happens, it will wrong and mean that courts now serve justice differently to one man, and not to the rule of law. There is no other defendant that would not be laughed out of court with this nonsense. If that is to be the case, Sullivan should just dismiss the case. This is manifestly destructive and insane stuff and nobody should b lithely accept it.

      • SaltinWound says:

        I’m not disagreeing that it would be wrong if it happens. The first mandamus was wrong and it happened. You may have had an issue with what the judges chose to focus on in the en banq hearing if you’d listened, but it’s not with me.

        • bmaz says:

          No, ultimately the first one did not happen. It was disallowed by the full DC Circuit. And I did listen to the argument. And, No I have no issue with you whatsoever! This subject just drives me batty.

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