August 10, 2020 / by 

 

Jeff Wall Admits that Any Scrutiny of DOJ’s Motion to Dismiss Flynn Prosecution Will Cause Irreparable Harm to Bill Barr

The hearing in Mike Flynn’s petition for a writ of mandamus just ended.

The key takeaway, given the make-up of the court, is that for the majority of the hearing, Judge Karen LeCraft Henderson seemed clear that it was too early to overturn any action Judge Emmet Sullivan has made. He has the authority to hold a hearing, she was clear. But if he decides not to grant the motion to dismiss, she seemed to indicate, she would favor a writ of mandamus overturning Sullivan’s decision. Henderson clearly believes that Gleeson’s filing, thus far, is intemperate, which is pretty funny given what Sidney Powell has done in this case.

At the very end of the hearing, she invited Principal Deputy Solicitor General Jeff Wall to address a claim made in DOJ’s brief: that DOJ should be permitted to self-correct the harm of a bad faith prosecution. So she may have been reserving that as a reason to rule for Flynn — ultimately ruling instead for DOJ. But her comments through the rest of the hearing suggest this petition will fail.

But the notion this might involve ruling for DOJ is the most interesting part of this hearing. Flynn filed the petition, not DOJ. Powell’s argument for Flynn was predictably flimsy, self-contradictory, and false. Even Judge Neomi Rao, who will clearly rule for Flynn, seemed to be struggling to find a way to agree with Flynn.

The more interesting argument came from Wall. He argued, repeatedly, that DOJ will be irreparably harmed if Sullivan is permitted to hold a hearing on DOJ’s motion to dismiss. In particular, he seemed horrified that Sullivan might require sworn declarations of affidavits.

As Beth Wilkinson, arguing for Sullivan, mentioned, neither Sullivan nor Amicus John Gleeson has called for such a thing. Both are simply moving towards a hearing scheduled for July 16. Wilkinson also noted that District courts hold such hearings all the time. (And they predictably will have to in another case where DOJ has moved to end a prosecution recently, in which — unlike this case — there appears to have been prosecutorial misconduct, Ali Sadr Hashemi Nejad, which I’ll return to).

Wall is literally arguing that DOJ will be permanently damaged if it has to show up and answer for its actions in this case (in particular, to explain why the prosecutors in this case didn’t sign the motion to dismiss).

That Wall argued so forcibly as to the injury that DOJ would suffer if it had to show up and defend its motion to dismiss is all the crazier given that they didn’t file the petition. The only harm that matters here procedurally is any harm to Flynn, not DOJ, and Powell really made no such case.

When Robert Wilkins pointed out that DOJ had not filed this petition, Wall basically asked for a mulligan, the opportunity to file their own mini-writ of mandamus. Judge Henderson responded by asking (as she had more generally) why this case shouldn’t proceed under regular order, in which when DOJ missed the opportunity to file their own writ, they can’t be granted a mulligan to do so after the fact.

Along the way, Wall and Powell both repeatedly misrepresented the status of the case. More importantly, both claimed DOJ’s motion was very detailed, without noting that it also made false claims, claims on which DOJ has reversed itself at the Circuit level. That will matter in a hearing, which may be why Wall was so insistent that a hearing would do real damage to DOJ.

As noted, given Henderson’s questions for the bulk of the hearing, the Circuit will likely deny this petition. But the most striking takeaway is how panicked Wall was that DOJ might be asked to explain itself.


Setting the Scene: Today’s Flynn Hearing

I’m still doing household chores so haven’t read the Judge Emmet Sullivan response and government and Flynn reply briefs at the DC Circuit in Mike Flynn’s petition for a writ of mandamus as closely as I would have liked.

But before today’s hearing, I wanted to recall what the posture is.

The question before the Circuit should be whether Flynn is entitled to any help at the DC Circuit. It should be whether Sullivan has taken an action that is so egregious — and so injures Flynn — that it merits the DC Circuit weighing in to overturn Sullivan’s action.

The only action Sullivan has taken, though, is appointing an amicus, something that is soundly within normal judicial discretion.

The Circuit — with a panel including the shamelessly hackish Neomi Rao — ordered the sides to brief whether Sullivan had to grant DOJ’s motion to dismiss right away, what should be a premature question in any case. Effectively, Flynn has argued that DOJ had a reason to dismiss the prosecution and DOJ has argued that this is a separation of powers issue (in both its response and reply, the government has argued against what it argued before Sullivan and what Bill Barr has conceded publicly). Even while strictly arguing the mandamus issue (including the DC Circuit’s approach to Roger Stone’s similar premature petition for mandamus, which was properly rejected), Sullivan’s response also raised the outstanding allegations against Flynn on his Turkish influence peddling.

All of which is to say the arguments (Flynn, DOJ, and Sullivan will have have 15 minutes to argue) likely won’t be addressing the legal issues that should be before the court, and Flynn and DOJ have already made claims that aggressively conflict with the record in this case. One detail Flynn has relentlessly obscured is what information was available before Flynn allocuted to his guilt a second time; basically everything that is public already was known to him.

Add in the fact that DOJ is now claiming that a judge cannot stop DOJ from dismissing a prosecution of the President’s buddy for no good reason, and we should expect that today’s hearing will pose a grave risk to the rule of law in this country.

You can stream the hearing here.


Appointed Amicus John Gleeson Argues DOJ Engaged in Gross Prosecutorial Misconduct in Moving to Dismiss Flynn Prosecution

I’m painting and doing other chores today and so my analysis of the amicus John Gleeson submitted in the Mike Flynn prosecution will have to wait. I did a thread of my initial read of the filing here.

The short version, however, is this.

Gleeson argues there are two bases for denying a motion to dismiss a prosecution: the prosecutor’s reasons for doing so, or clear evidence of gross prosecutorial abuse.

Guided by Rule 48(a)’s text and history, as well as separation of powers principles, there are two grounds for denying leave of court. First, “the requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons.” Ammidown, 497 F.2d at 622. Those reasons must be real and credible; where they are demonstrably pretextual, the court may deny leave under Rule 48(a). Second, courts may deny Rule 48(a) motions based on clear evidence of gross prosecutorial abuse. See id.

He then argues that DOJ’s reasons for moving to dismiss are such obviously bullshit, the only explanation for the motion is that Flynn is a political ally of President Trump.

Both grounds for denying leave of court under Rule 48(a) are present in this case. The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.

Of all the places where Gleeson might (and in some cases, does) use DOJ or Barr’s prior statements against DOJ, the most effective one is quoting Barr’s statement that Trump’s tweets about investigations into his flunkies “make it impossible to do [his] job” to substantiate a claim that any DOJ independence has severely broken down.

These [over 100 Trump tweets complaining about the Flynn prosecution] were issued against the background of a severe breakdown in the traditional independence of the Justice Department from the President. As Professor Jack Goldsmith notes, “every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters.”57 One component of that independence is “resistance to politicized influence.”58 Yet President Trump has overtly claimed and exercised the “absolute right to do what I want to do with the Justice Department.”59 The Attorney General stated earlier this year that President Trump’s “public statements and tweets” about pending cases “make it impossible to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.”60

Which leads Gleeson to concede that DOJ is permitted to exercise its prosecutorial discretion to help a Trump ally for sound reasons, not not for pretextual ones.

The Government may permissibly exercise its discretion for sound reasons even if doing so benefits a friend and political ally of the President (who, as noted, tried unsuccessfully to persuade the FBI Director at the time to “let this go,” ECF No. 79-6 at 26). But the Government may not enlist a court in dismissing a case solely because the defendant is a friend and political ally of the President—and where the ostensible reasons advanced for dismissal amount to a thin and unpersuasive disguise. Only by acting as a rubber stamp could the Court presume that all of this is regular and that the Government’s reasons here are anything but pretextual. Unfortunately, what is actually happening in this case is precisely what Rule 48(a) was intended to guard against. If the Executive wishes for the Judiciary to dismiss criminal charges—as opposed to issuing a pardon or taking other unilateral action—the reasons it offers must be real and credible. Its professed concerns about materiality are neither.

Ultimately, Gleeson argues that Judge Emmet Sullivan should deny DOJ’s motion to dismiss, but that he should not hold Flynn in contempt, but instead factor Flynn’s materially conflicting lies into his sentence.


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.


Defendant Barr’s Flip-Flops Finally Attract Press Attention

Bill Barr’s sloppy lying may finally be catching up to him.

The press should have stopped treating the Attorney General as credible after he obviously lied about the contents of the Mueller Report. But he continued to be accorded the courtesy of the office, through changing DOJ stories about his involvement in Trump’s effort to coerce a quid pro quo in Ukraine (and the impeachment that followed) and his cover stories to explain unprecedented interference in the prosecution of Trump flunkies.

But over the course of the last week, the press has gone from reporting anonymous DOJ scoops, to noting how later DOJ claims conflicted with that scoop, to outright debunking of Barr (even if they’re not yet treating him as the consistent liar they recognize Trump to be).

On Tuesday, WaPo had a scoop citing an anonymous DOJ official stating that Barr personally ordered the attack on protestors, perhaps an effort to shift the focus from Trump.

Attorney General William P. Barr personally ordered law enforcement officials to clear the streets around Lafayette Square just before President Trump spoke Monday, a Justice Department official said, a directive that prompted a show of aggression against a crowd of largely peaceful protesters, drawing widespread condemnation.

The claim took the heat off of President Trump.

In a presser on Thursday, Barr offered a more elaborate explanation. He claimed he made the decision to move the perimeter around the White House on Trump’s orders — to protect the White House from protestors — before the arrival of protestors on Monday.

On Monday, the president asked me to coordinate the various federal law enforcement agencies, not only the multiple department of justice agencies, but also other agencies such as those in the Department of Homeland Security. So we had a coordinated response and worked with the National Guard and also with the DC police. That morning, we decided that we needed more of a buffer to protect the White House and to protect our agents and secret service personnel who could be reached by projectiles from H Street. I made the decision that we would try to move our perimeter northward by a block to provide this additional protection. And later at 2:00 on Monday, I met with all the various law enforcement agencies and we set our tactical plan. And that plan involve moving our perimeter a block North to I Street. It was our hope to be able to do that relatively quickly before many demonstrators appeared that day.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

In the same presser, he claimed that he saw “instigators” before the move to push them back, thereby claiming both advance planning but also an imminent threat.

I think one of the difficulties is that while there are peaceful demonstrators and participants in these protests, the instigators, those committed to violence, basically shield themselves by going among them and carrying out acts of violence. I saw the projectiles on Monday when I went to Lafayette Park to look at the situation. And as one of the officials said, he pointed out various knots of people where the projectiles were coming from and we could see… and it was a lot of demonstrators. And it’s hard to know exactly where they’re coming from. Frequently, these things are thrown from the rear of the demonstration, but we could not continue to protect the federal property involved and protect the safety of our agents with such a tight perimeter. And so our object was to move it out by one block. Next question, please.

On Friday, however, Barr started backing away from responsibility. That day, the AP reported that Barr had not given the tactical move to attack the protestors. Instead, some unnamed person who could not be directly tied to a Barr (and therefore a Trump) command did that.

On Friday, Barr told the AP that both he and U.S. Park Police were in agreement on the need to push back the security perimeter. He said he attended a meeting around 2 p.m. Monday with several other law enforcement officials, including Metropolitan Police Chief Peter Newsham, where they looked at a map and decided on a dividing line. Under the plan, the protesters would be moved away from Lafayette Park and federal law enforcement officials and members of the National Guard would maintain the perimeter line, Barr said.

[snip]

Barr said it was a Park Police tactical commander — an official he never spoke to — who gave the order for the law enforcement agencies to move in and clear the protesters.

“I’m not involved in giving tactical commands like that,” he said. “I was frustrated and I was also worried that as the crowd grew, it was going to be harder and harder to do. So my attitude was get it done, but I didn’t say, ‘Go do it.’”

Barr insisted there was no connection between the heavy-handed crackdown on the protesters and Trump’s walk soon after to St. John’s Church.

Finally, on Sunday, Margaret Brennan interviewed Barr on Face the Nation, one of the first times during this tenure as AG Barr has sat for an interview with someone who was neither (like Pete Williams or Pierre Thomas) someone he knew from the Poppy days, nor (like Catherine Herridge) a right wing stenographer. Brennan challenged a lot of these inconsistencies, leading to Barr to make a comment — that pepper balls are not tear gas — that has been widely mocked since.

MARGARET BRENNAN: I want to ask you about some of the events of the week. On Monday, Lafayette Park was cleared of protesters. You’ve spoken about this. The federal agents who were there report up to you. Did you think it was appropriate for them to use smoke bombs, tear gas, pepper balls, projectiles at what appeared to be peaceful protesters?

BARR: They were not peaceful protesters. And that’s one of the big lies that the- the media is- seems to be perpetuating at this point.

MARGARET BRENNAN: Three of my CBS colleagues were there. We talked to them.

BARR: Yeah.

MARGARET BRENNAN: They did not hear warnings. They did not see protesters–

BARR: There were three warnings.

MARGARET BRENNAN:–throwing anything.

BARR: There were three warnings given. But let’s get back to why we took that action. On Friday, Saturday and Sunday, OK, there were violent riots in- at Lafayette Park where the park police were under constant attack at the- behind their bike rack fences. On Sunday, things reached a crescendo. The officers were pummeled with bricks. Crowbars were used to pry up the pavers at the park and they were hurled at police. There were fires set in not only St. John’s Church, but a historic building at Lafayette was burned down.

MARGARET BRENNAN: These were things that looters did.

BARR: Not looters, these were- these were the- the violent rioters who were- dominated Lafayette Park.

MARGARET BRENNAN: But what I’m asking about–

BARR: They broke into the Treasury Department,–

MARGARET BRENNAN: –on Monday when it was a peaceful protest.

BARR: I’m going to- let me get to this, because this has been totally obscured by the media. They broke into the Treasury Department, and they were injuring police. That night,–

MARGARET BRENNAN: Sunday night?

BARR: Sunday night, the park police prepared a plan to clear H Street and put a- a larger perimeter around the White House so they could build a more permanent fence on Lafayette.

MARGARET BRENNAN: This is something you approved on Sunday night?

BARR: No. The park police on their own on- on Sunday night determined this was the proper approach. When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette Park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies, including the Metropolitan Police at 2:00 p.m. that day. The effort was to move the perimeter one block, and it had to be done when we had enough people in place to achieve that. And that decision, as I say, was communicated to the police at 2:00 p.m.. The operation was run by the park police. The park police was facing what they considered to be a very rowdy and non-compliant crowd. And there were projectiles being hurled at the police. And at that point, it was not to respond–

MARGARET BRENNAN: On Monday, you’re saying there were projectiles–

BARR: On Monday, yes there were.

MARGARET BRENNAN: As I’m saying, three of my colleagues were there.

BARR: Yeah.

MARGARET BRENNAN: They did not see projectiles being thrown–

BARR: I was there.

MARGARET BRENNAN: –when that happened.

BARR: I was there. They were thrown. I saw them thrown.

MARGARET BRENNAN: And you believe that what the police did using tear gas and projectiles was appropriate?

BARR: Here’s- here’s what the media is missing. This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.

MARGARET BRENNAN: And the methods they used you think were appropriate, is that what you’re saying?

BARR: When they met resistance, yes. They announced three times. They didn’t move. By the way, there was no tear gas used. The tear gas was used Sunday when they had to clear H Street to allow the fire department to come in to save St. John’s Church. That’s when tear gas was used.

MARGARET BRENNAN: There were chemical irritants the park police has said–

BARR: No, there were not chemical irritants. Pepper spray is not a chemical irritant.

It’s not chemical.

MARGARET BRENNAN: Pepper spray, you’re saying is what was used–

BARR: Pepper balls. Pepper balls.

MARGARET BRENNAN: Right, and you believe that was appropriate. What I want to show you is what a lot of people at home who were watching this on television saw and their perception of events. So while the president says that he appreciates peaceful protest, around the same time, this crowd–

BARR: Well, six minutes- six minutes difference–

MARGARET BRENNAN: Right, around same time the area is being cleared of what appear to be peaceful protesters using some force. And after the speech is finished, the president walks out of the White House to the same area where the protesters had been and stands for photo op in front of the church where the protesters had been. These events look very connected to people at home. In an environment where the broader debate is about heavy handed use of force in law enforcement, was that the right message for Americans to be receiving?

Along the way, however, Barr’s explanation got more and more inconsistent.

What started out as an apparent effort to shield the President from direct responsibility for attacking protestors to clear way for his photo op became, by the end of the week, an effort to create a legal justification — protestors throwing things — while still distancing the time of the order from the photo op.

That’s a conflict Phil Bump highlighted in a particularly good job of shredding Barr’s statements, relying on an earlier detailed timeline he did. In addition to mocking Barr’s claim that pepper balls are not tear gas because they’re naturally occurring, Bump shows how Barr’s statements yesterday conflict with the justification for using tear gas.

“Here’s what the media is missing,” Barr said to Brennan on Sunday. “This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.”

The problem with that framing is twofold.

First, it contradicts that same statement from the Park Police that serves as the backbone of the tear-gas defense. In that statement, the Park Police claim that protesters “began throwing projectiles including bricks, frozen water bottles and caustic liquids” at 6:33 p.m. This prompted the effort to clear the square to “curtail the violence that was underway.” There’s nothing about this being a planned operation.

What’s more, Barr himself made the claim to Brennan that the protesters were being violent at the time that the effort to remove them began.

“Three of my colleagues were there,” Brennan told him. “They did not see projectiles being thrown.”

“I was there,” Barr replied. “They were thrown. I saw them thrown.”

The timing of Barr’s visit is important, and we’ll get to it in a bit. But suffice it to say that video evidence from the period not only doesn’t back up the Park Police claim, it also doesn’t show Barr reacting to any such events.

It has been rare, possibly unprecedented, for the press to track Barr’s obvious lies this closely, even in the case of legal cases (like the Flynn prosecution) where Barr’s flip-flops are docketed.

I think a lot of things explain the unusual attention to Barr’s flip-flops. The assault on protestors and Trump’s tone-deaf photo op was so pathetic, the White House went into damage control. And because there were so many journalists at Lafayette Park, there were a slew of witnesses attesting to inconsistencies and inaccuracies in the official version of the story (starting with the Park Police’s flip-flops on the tear gas). Now, Barr is in a position of accusing three CBS reporters and at least one WaPo reporter, whose versions of this story differ dramatically from his own, of lying: His word against the reports of outside observers who have film to backup those reports.

But Barr’s changing excuses may also be partly explained by one other thing.

As noted, Barr’s first instinct seemed to be to distance the President from the order targeting peaceful protestors, and as he has repeatedly done, he took responsibilty (and Kayleigh McEnany happily gave him responsibility). But that created new problems: including why the Attorney General was ordering cops, many of them not within his chain of command, but more importantly, why Trump —  through orders given to Barr who executed those orders by issuing orders of his own — had responded to First Amendment protected activities with a violent assault.

The stakes of the answers to that question may have gone up with the filing of a lawsuit captioned, “Black Lives Matter v. Donald Trump:” Bill Barr is a named defendant.

Defendant William Barr is the Attorney General of the United States. He is sued in his individual and official capacity. He personally issued the order that resulted in the unlawful actions complained of in this lawsuit.

[snip]

At approximately 6:08 pm, Defendant Barr entered Lafayette Square.

At 6:10 pm, Defendant Barr was behind the law enforcement officials in Lafayette Square pointing north towards St. John’s Church. The Department of Justice subsequently acknowledged that Defendant Barr personally ordered that Lafayette Square be cleared.

Let me be clear: because this suit focuses on Bivens complaints about the violation of Constitutional rights, it probably won’t succeed in terms of the damages requested. Recent proceedings have largely gutted Bivens.

But what the suit does do is trace a link between Barr’s actions and the complaints of the plaintiffs (who include a 9-year old boy, a Navy veteran, and a former Eagle Scout). It does so through some of the same details that Barr is now trying to obfuscate.

And what the lawsuit may do is force a way to make the events that Barr is trying to cover up public.

Barr’s lies are consistent with all his other lies. He makes broad claims to power — not authority — and then he keeps changing the story as needed to try to give his claims retroactive legal cover.

This time, he may be forced to do so in court.

Update: WaPo did an unbelievably detailed piece showing no evidence for Park Police claims of dangerous projectiles, and making evident how the clearance of the Square led to the photo op.


When Billy Barr Called a Press Conference to Target Non-Terrorists Rather than Brag about the Right Wing Terrorists FBI Caught

What if the FBI succeeded in thwarting a right wing terrorist attack but rather than bragging about that success, instead redoubled its efforts to target peaceful protestors as terrorists?

That’s what happened this week.

On Tuesday, the FBI terrorism agents arrested three adherents of the “Boogaloo” movement, a group of extremists planning a civil war. All have military experience and one, Andrew Lynam, is currently in the Army Reserve. At a ReOpen Nevada protest held in April, at which they were all heavily armed, Lynam told a person who’d go on to become an FBI informant that, “their group was not for joking around and that it was for people who wanted to violently overthrow the United States government.” One of them planned to use the cover of the George Floyd protests to conduct attacks and sow panic.

CHS stated that PARSHALL and LOOMIS’s idea behind the explosion [targeting Lake Mead] was to hopefully create civil unrest and rioting throughout Las Vegas. They wanted to use the momentum of the George Floyd death in police custody in the City of Minneapolis to hopefully stir enough confusion and excitement, that others see the two explosions and police presence and begin to riot in the streets out of anger.

They were arrested on the way to a Black Lives Matter protest with the makings of Molotov cocktails and an AR-15 in their vehicles.

Normally when the FBI thwarts a terrorism attack in process, they hold a big press conference to brag about it. As of this morning, however, neither DOJ nor FBI have posted the arrest on their national news websites (the Nevada US Attorney’s Office has).

Instead of boasting about the plotters arrested as terrorists, yesterday Billy Barr, FBI Director Christopher Wray, Acting DEA Administrator (and Barr flunky) Timothy Shea, and the head of ATF had a press conference that seemed designed to provide post hoc and advance justification for abusive steps Barr has and plans to authorize. (The Daily Beast also remarked on their silence about the Boogaloo arrests, and noted that that was one of the only arrests of ideologically motivated groups that have taken place during the uprising.)

The specifics of their statements, given the legal framework around national security investigations and known and presumptive OLC memos authorizing such things, deserves more attention.

The culprit is Antifa, not (also) the right-wingers carrying guns

In questions, for example, Pierre Thomas asked Bill Barr about the Boogaloo bust. Barr responded by focusing on Antifa.

And that’s why in my prepared statement, I specifically said, in addition to Antifa and other extremist groups like Antifa, there were a variety of groups and people of a variety of ideological persuasion. So I did make that point. I’m not going to get too specific, but the intelligence being collected by our US attorney’s office is particularly integrated by the FBI from multiple different sources is building up. There are some specific cases against individuals, some Antifa related.

Chris Wray also responded to the question about Boogaloo by emphasizing that Antifa was a terrorist organization.

Sure. Let me say first, as I’ve said for quite some time and including even my first few months in job, we, the FBI have quite a number of ongoing investigations of violent anarchist extremists, including those motivated by an Antifa or Antifa like ideology. And we categorize and treat those as domestic terrorism investigations and are actively pursuing them through our joint terrorism task forces.

This repeats comments both Wray and Barr made in their prepared speeches. Barr saidhe culprit here is “Antifa” and it is violent.

At some demonstrations, there are groups that exploit the opportunity to engage in looting.  And finally, at some demonstration, there are extremist agitators who are hijacking the protests to pursue their own separate and violent agenda.

We have evidence that Antifa and other similar extremist groups, as well as actors of a variety of different political persuasions, have been involved in instigating and participating in the violent activity.

Wray said the same. The culprits are “Antifa” and other agitators.

We’re seeing people who are exploiting this situation to pursue violent, extremist agendas—anarchists like Antifa and other agitators. These individuals have set out to sow discord and upheaval, rather than join in the righteous pursuit of equality and justice. And by driving us apart, they are undermining the urgent work and constructive engagement of all those who are trying to bring us together—our community and religious leaders, our elected officials, law enforcement, and citizens alike.

There is a foreign nexus that will allow us to use transnational tools

In his prepared speech, Barr claimed that there are foreign actors involved.

We are also seeing foreign actors playing all sides to exacerbate the violence.

It’s true that the Russians who helped Trump get elected are sowing dissension but that would be dealt separately from a press conference if Barr weren’t trying to use the foreign nexus to access national security tools he says can’t be used with Trump supporters.

Barr returned to this later, and specifically said they maybe can’t offer proof.

I may ask Chris if he cares to provide a little more detail. I’m not sure how much detail we want to get into, but people shouldn’t think that countries that are hostile to the United States, that their efforts to influence the US or weaken the US or sow discord in the US is something that comes and goes with the election cycle. It is constant. And they are constantly trying to sow discord among our people, and there’s a lot of disinformation that circulates that way. And I believe that we have evidence that some of the foreign hackers and groups that are associated with foreign governments are focusing in on this particular situation we have here and trying to exacerbate it in every way they can. Unless Chris has something to add, I can turn it over to … Yeah.

By suggesting there’s a foreign nexus, Barr is laying the groundwork to claim to need tools only available with that foreign nexus (something that has been done with past protest movements).

Every store that gets raided gives federal jurisdiction

After making it clear that Billy Barr intends to target Antifa as the culprit here, and use national security tools to do so, Barr and his flunkies then laid out how they think they have national jurisdiction.

Barr asserted his own jurisdiction based off the federal buildings he said that had been targeted (and because protestors were in front of the White House).

Many of the buildings, as you know, and facilities here, and the monuments are the responsibility of the federal government and the proceedings and process of the federal government take place here. And so when you have a large scale civil disturbance that is damaging federal property, threatening federal property, threatening federal law enforcement officers, threatening the officials in government and their offices and our great monuments, it is the responsibility of the federal government to render that protection.

Barr described how that Federal jurisdiction — and his invocation of the word “riot” — allows them to lead the response via what is the intelligence-driven network used against terrorists.

The Justice Department is also working closely with our state and local partners to address violent riots around the country.  Our federal law enforcement efforts are focused on the violent instigators.

Through the FBI, U.S. Attorney’s Offices, component field offices, and state and local law enforcement, we are receiving real-time intelligence, and we have deployed resources to quell outbreaks of violence in several places.

While Wray didn’t use the word “riot” he described the centrality of the Joint Terrorism Task Force to the Federal response.

We’re making sure that we’re tightly lashed up with our state, local, and federal law enforcement partners across the country, by standing up 24-hour command posts in all of our 56 field offices. We have directed our 200 Joint Terrorism Task Forces across the country to assist local law enforcement with apprehending and charging violent agitators who are hijacking peaceful protests.

Timothy Shea invented an excuse not used in his request to get involved: the DEA has jurisdiction because some people stole controlled substances from pharmacies, possibly after they had been looted.

In addition, DEA continues to investigate drug related crimes, including the theft of controlled substances from looted pharmacies, which is happening here in the District of Columbia and across the country. In the national capital region, approximately or over 150 DEA special agents have partnered with the metropolitan police department at their request and the National Guard to enforce security posts and maintain a secure perimeter in designated areas.

Acting ATF Director Regina Lombardo made a similar claim to jurisdiction (though theirs legitimately extends to explosives activity): ATF is investigating firearm dealer thefts.

 ATF has also responded to 73 federal firearms licensed dealers. We have identified many suspects that made arrest and recovered many firearms already.

When it came to Bureau of Prisons Director Michael Carvajal, the only real excuse he offered was that Billy Barr requested BOP get involved. Though he did offer the bogus claim that BOP’s riot team is “experienced in … conflict resolution.”

The Attorney General asked the BOP to request and assist other law enforcement agencies in maintaining order and peace in the district of Columbia. BOP crisis management teams are highly trained to deal with various types of emergency situations, including crowd control and civil disturbances. They are experienced in confrontational avoidance and conflict resolution.

Barr offered even more transparently bullshit excuses for inviting in the kinds of people who put down riots among violent felons, claiming that there weren’t enough Marshals to go around, and that no one else in the US Government (like Park Police) know how to deal with the kinds of crowds they deal with all the time. Barr also provided a totally bullshit excuse for why the riot teams weren’t wearing identification.

Let me just add that the Bureau of Prisons SORT teams are used frequently for emergency response and emergency situations, in either civil disturbances or hurricanes or other things like that. They’re highly trained. They’re highly trained units. And in fact, in the Department of Justice, we do not really have large numbers of units that are trained to deal with civil disturbances. I know a lot of people may be looking back on history, think we can call on hundreds and hundreds and hundreds of US Marshals, and that’s simply not the case. Our marshals’ response for us is approximately a hundred US Marshals. And so, historically when there have been emergencies where we have to respond with people who do have experience in these kinds of emergencies that are highly trained people, we use what are called SORT teams, response teams from the Bureau of Prisons.

And I could see a number … Now, in the federal system, we don’t wear badges with our name. I mean, the agents don’t wear badges and their names and stuff like that, which many civilian police agents, I mean, non-federal police agencies, do. And I could understand why some of these individuals simply wouldn’t want to talk to people about who they are, if that were, if that in fact was the case.

The photo op was not a photo op

But Barr’s bullshit explanation for why he sicced riot teams on peaceful protestors was still more credible than the excuse he offered for violently attacking peaceful protestors, including priests at a church serving them, for a photo op. He had decided (using the jurisdiction assumed by claiming everything is a federal building) to expand the perimeter around the White House.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

And that had nothing at all whatsoever with the President’s desire for a photo op and he just happened to be in the photo op that had nothing to do with the violent attack on peaceful protestors and the exploitation of a house of worship.

Obviously, my interest was to carry out the law enforcement functions of the federal government and to protect federal facilities and federal personnel, and also to address the rioting that was interfering with the government’s function. And that was what we were doing. I think the president is the head of the executive branch and the chief executive of the nation, and should be able to walk outside the White House and walk across the street to the church of presidents. I don’t necessarily view that as a political act. I think it was entirely-I don’t necessarily view that as a political act. I think it was entirely appropriate for him to do. I did not know that he was going to do that until later in the day after our plans were well underway to move the perimeter, so there was no correlation between our tactical plan of moving the perimeter out by one block and the president’s going over to the church. The president asked members of his cabinet to go over there with him, the two that were present, and I think it was appropriate for us to go over with him.

Let me be clear. These are — most of them — transparently bullshit excuses. Unfortunately, the way our intersecting justifications for using national security authorities work, such transparently bullshit excuses provide the legal cover that the Federal government has long used, especially when it comes to spying on brown people.

To be clear, this is not new. It’s just incredibly ham-handed and pretty transparently done after the fact, after the press already identified Barr’s abuses. And I assume OLC only now is writing memos to match the transparently bogus claims made in yesterday’s presser.


If the Steele Dossier Is Disinformation, Republicans Have Become Willful Participants in the Operation

I was among the first people to argue that the Steele dossier had been planted either partially or predominantly with Russian disinformation.

Republicans never consider the implications if the Steele dossier is disinformation

I first suggested the dossier reflected a feedback loop — magnifying both the Alfa Bank and the Michael Cohen allegations — in March 2017 (there’s increasing evidence the Alfa Bank story was disinformation, too, which I’ve also argued). In November 2017, I showed evidence suggesting the Democrats were complacent in response to their discovery of the hack in May and June 2016, in part because the dossier falsely led them to believe that the Russians hadn’t accomplished such hacks and that the kompromat Russians had on Hillary consisted of old FSB intercepts of her, not newly stolen emails. In January 2018, I showed how the dossier would be useful to Russia, partly to thwart and partly to discredit the investigation into their operation. In August 2018, I laid out six specific false claims made in the dossier that would have led Democrats or the FBI to take action counter to their own interests:

  • Russians hadn’t had success hacking targets like Hillary
  • Russians were planning to leak dated FSB intercepts rather than recent stolen emails
  • Misattribution of both what the social media campaign included and who did it, blaming Webzilla rather than Internet Research Agency
  • Carter Page, not George Papadopoulos or Roger Stone, was one key focus of Russian outreach
  • Russia had grown to regret the operation in August, when instead they were planning the next phase
  • Michael Cohen was covering up Trump’s funding of the hackers rather than Trump’s sexual scandals and an improbably lucrative business deal

Also in August 2018, I laid out the specific risk that Oleg Deripaska, who had influence over both Christopher Steele and Paul Manafort at the time, could have been manipulating both sides. In January, I wrote a much more detailed post that, in part, showed that that’s what Deripaska seems to have done. The post also showed how any disinformation in the dossier succeeded in confusing and discrediting the most experienced investigators into Russian organized crime (both Steele and at both DOJ and FBI), as well as harming Democrats.

Long after I started laying out the implications of the possibility that the dossier was disinformation, Republicans came to believe that was the case. Unsurprisingly, however, that’s all they’ve done, point to Russia’s success at feeding the FBI and Democrats disinformation (just as Russia got Don Jr, Roger Stone, and Mike Flynn to embrace and magnify other disinformation), as if that in some way uniquely damns Democrats. When, earlier this year, Chuck Grassley got footnotes declassified providing further evidence that the dossier was disinformation, Republicans just kept squawking that it was, without thinking through the implications of it.

Because Grassley and others raised the issue in the Rod Rosenstein hearing yesterday (and because I’m preparing a post on that hearing), I’m going back to look closely at three footnotes reflecting Russian knowledge of the dossier project. As with all my other posts criticizing the dossier, nothing here is meant to excuse the Democrats’ refusal to come clean on it, or the ham-handed way the project was managed in the first place. But the footnotes don’t actually say what the Republicans think they do, and in some ways they increase the import of Paul Manafort’s interactions with Deripaska during the campaign.

The three references to June 2017 reporting on mid-2016 knowledge of the dossier

There were actually three mentions of June 2017 reporting related to the Steele dossier. I’ve included the context from the IG Report and footnotes below, but summarized, they are:

  • Footnote 211: An intelligence report from June 2017 said someone associated with Oleg Deripaska was or may have been aware of Steele’s work by early July 2016.
  • Footnote 342: An early June 2017 USIC report said two people affiliated with Russian intelligence were aware of Steele’s work in “early 2016” (this is either a typo or inaccurate, as the earliest anyone could have known would have been May 2016, and more likely June 2016).
  • Footnote 347: The FBI received reporting in early June 2017 that must come from 702 coverage revealing a bunch of details about a sub-source, including that the person had contact with the Presidential Administration in June/July 2016 and that he or she was strongly pro-Hillary.

I’ve highlighted the temporal references in the longer passages below, to make this more clear, but it’s worth noting that all three of these references are to intelligence reports dated June 2017. Once you account for the error in footnote 342 (since Steele’s election reporting didn’t start until May 2016, awareness of it most post-date that), all three of the reports reflect some time to Steele’s project in roughly the same time frame: May to early July 2016.

So it’s possible that some if not all three of these reports are the same report. All the more so given that two key Deripaska deputies, Konstantin Kilimnik and Victor Boyarkin, have been publicly identified as having links to Russian intelligence.

The Mueller Report describes evidence–including but not limited to witness interviews–that Kilimnik has ties to GRU.

Manafort told the Office that he did not believe Kilimnik was working as a Russian “spy.”859 The FBI, however, assesses that Kilimnik has ties to Russian intelligence.860 Several pieces of the Office’s evidence-including witness interviews and emails obtained through court-authorized search warrants-support that assessment.

It makes no such claims about Boyarkin, though it does note that he served as defense attaché in the past, the kind of job often used for official cover. But when Treasury sanctioned Boyarkin in December 2018 along with all the people who implemented the Russian interference campaign in 2016, it identified Boyarkin as a former GRU officer.

Victor Alekseyevich Boyarkin (Boyarkin) is a former GRU officer who reports directly to Deripaska and has led business negotiations on Deripaska’s behalf.  Deripaska and Boyarkin were involved in providing Russian financial support to a Montenegrin political party ahead of Montenegro’s 2016 elections.  Boyarkin was designated pursuant to Executive Orders (E.O.) 13661 and 13662 for having acted or purported to act for or on behalf of, directly or indirectly, Oleg Deripaska, who was previously designated pursuant to E.O. 13661 for having acted or purported to act for or on behalf of a senior Russian government official, as well as pursuant to E.O. 13662 for operating in the energy sector of the Russian Federation economy, as well as with entities 50 percent or more owned by designated persons.

The government refers to both of these guys as GRU-linked publicly. So if either showed up in a classified intelligence report, that affiliation would likely be more explicit. Both Kilimnik and Boyarkin were the target of retroactive surveillance as part of the investigation in Paul Manafort. And because they were interacting with Manafort, it would be likely one or both of them would learn of any issues involving Manafort, like the dossier, if such information came to Deripaska. To be clear, it is speculation that one of these men was the person associated with Deripaska who got wind of the dossier, but the description would fit both, both were under surveillance, and both would have a reason to be informed of the dossier if feeding disinformation to it was part of a larger project.

If either of them were one of the people named in the intelligence reports, it would mean Deripaska’s actions towards Manafort during the election would have been conducted by someone who knew of the Steele dossier. It would also mean that Boyarkin’s outreach (via Kilimnik) to Manafort in July 2016 would have come just after (this intelligence report reflects) learning of the dossier.

For example, in response to a July 7, 2016, email from a Ukrainian reporter about Manafort’ s failed Deripaska-backed investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest.

Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

It would also mean that when Manafort traveled to Madrid in early January 2017 he may have learned whatever the Deripaska people knew of the disinformation effort.

Manafort’ s activities in early 2017 included meetings relating to Ukraine and Russia. The first meeting, which took place in Madrid, Spain in January 2017, was with Georgiy Oganov. Oganov, who had previously worked at the Russian Embassy in the United States, was a senior executive at a Deripaska company and was believed to report directly to Deripaska.940 Manafort initially denied attending the meeting. When he later acknowledged it, he claimed that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.941 Other evidence, however, provides reason to doubt Manafort’s statement that the sole topic of the meeting was the Pericles lawsuit. In particular, text messages to Manafort from a number associated with Kilimnik suggest that Kilimnik and Boyarkin-not Manafort’s counsel-had arranged the meeting between Manafort and Oganov.942 Kilimnik’s message states that the meeting was supposed to be “not about money or Pericles” but instead “about recreating [the] old friendship”-ostensibly between Manafort and Deripaska-“and talking about global politics.”943

According to an old Ken Vogel story, Manafort called Reince Priebus the day the dossier came out — at a time when he’d still be in Madrid with Oganov (he returned on January 12) and suggested he discredit the Russian investigation by focusing on the Steele dossier.

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a personclose to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative.

This would have been one of the few communications Manafort had with anyone in the Trump Administration (per court records, he had no direct communication after the inauguration, though he did use Sean Hannity as a back channel after that).

From that Manafort call to the present, the push to discredit the Russian investigation by treating the dossier as the Russian investigation and discrediting the former by unpacking the (admitted, egregious) problems in the latter has been the primary response to the Russian investigation. If Manafort was tipped to the fact that the dossier was full of baseless allegations because the Russians had put them there, it would mean the entire GOP effort since has been one of the intended goals of the disinformation.

Again, this rests on speculation, but if, in fact, Manafort’s interlocutors were the people identified as those who learned of the dossier, then everything the Republicans have been doing since would be part of that disinformation campaign.

210 and 211: Deripaska’s contemporaneous knowledge of the Steele dossier

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

342: On top of disinformation, FBI believed both Steele and his sources may have been boasting

According to the Supervisory Intel Analyst, the cause for the discrepancies between the election reporting and explanations later provided to the FBI by Steele’s Primary Sub-source and sub-sources about the reporting was difficult to discern and could be attributed to a number of factors. These included miscommunications between Steele and the Primary Sub-source, exaggerations or misrepresentations by Steele about the information he obtained, or misrepresentations by the Primary Sub-source and/or sub-sources when questioned by the FBI about the information they conveyed to Steele or the Primary Sub-source. 342

342 In late January 2017, a member of the Crossfire Hurricane team received information [redacted] that RIS [may have targeted Orbis; redacted] and research all publicly available information about it. [redacted] However, an early June 2017 USIC report indicated that two persons affiliated with RIS were aware of Steele’s election investigation in early 2016. The Supervisory Intel Analyst told us he was aware of these reports, but that he had no information as of June 2017 that Steele’s election reporting source network had been penetrated or compromised.

347: FBI used 702 collection to test Steele’s sub-sources

FBI documents reflect that another of Steele’s sub-sources who reviewed the election reporting told the FBI in August 2017 that whatever information in the Steele reports that was attributable to him/her had been “exaggerated” and that he/she did not recognize anything as originating specifically from him/her. 347

347 The FBI [received information in early June 2017 which revealed that, among other things, there were [redacted]] personal and business ties between the sub-source and Steele’s Primary Sub-source; contacts between the sub-source and an individual in the Russian Presidential Administration in June/July 2016[redacted] and the sub‐source voicing strong support for candidate Clinton in the 2016 U.S. elections. The Supervisory Intel Analyst told us that the FBI did not have Section 702 coverage on any other Steele sub‐source.


The Father of the DEA Dragnet Sics It on Free Speech

BuzzFeed had an important scoop yesterday, revealing that Timothy Shea — the Billy Barr flunky who presided over the US Attorney’s Office in DC long enough to interfere in the Mike Flynn and Roger Stone prosecutions who has since been put in charge of the DEA — requested authority to engage in domestic surveillance targeting George Floyd protestors.

On top of the problematic implications of the move, in the abstract, it’s worth considering what it might mean more specifically. It might be best understood as Barr deploying all the investigative tools he finds so inexcusable when used against Trump associates being cultivated by a hostile foreign government, using them against Americans exercising their Freedom of Speech and Assembly.

Using the DEA to surveil protestors gives Barr a number of things (in addition to more bodies to throw at the problem). While the DOJ IG Report on Carter Page revealed the FBI has a source with tentacles into all branches of society, the DEA’s informant network is understood to be even more extensive, and often more easily leveraged because of steep war on drug sentences.

There’s good reason to believe the DEA’s access to Stingrays used to track cell phone location escapes the close scrutiny of other agencies. As Kim Zetter noted on Twitter, that may include Dirtboxes, plane-based Stingray technology.

But the FBI and, especially, the US Marshals also have that technology.

What they don’t necessarily have, however, is access to a surveillance program the precursor to which Barr approved, with no legal review, the last time he was Attorney General.

In 1992, Barr authorized the DEA to use a drug related subpoena authority, 876(a), to start collecting the call records between certain foreign countries and the United States. Over time, the dragnet came to include every country the government could claim had any involvement in narcotics trafficking. That dragnet was the model for the phone dragnet that Edward Snowden revealed in 2013. While it was shut down in the wake of the Snowden revelations (and after it became clear DOJ was using it for entirely unrelated investigations), OLC had initiated the process of reauthorizing it in 2014. Given Barr’s fondness for surveillance, it would be unsurprising if he had gotten Trump’s supine OLC to reauthorize and possibly expand its use.

So one thing Barr may be using is the kind of dragnet civil libertarians are celebrating the cessation of in Section 215.

But there’s another DEA dragnet that would be more powerful in this circumstance, and would not need reauthorization: Hemisphere, which was first disclosed in 2013. That’s a program operated under the Drug Czar’s authorities (and therefore substantially hidden under White House authorities). Rather than collect a dragnet itself, the government instead relies on the dragnet AT&T has collected over decades. It asks AT&T to do analysis, not just of call or text records, but also co-location.

A DOJ IG Report on the DEA’s various dragnets released in March 2019 makes it clear (based on redactions) that Hemisphere is still active.

There are many reasons why Barr might want his flunky at DEA to get involved in surveilling Americans exercising their First Amendment rights. Chief among them probably include DEA’s extensive informant network and DEA’s practice of mapping out entire networks based solely on subpoenas served on AT&T.

Both of those are things that Barr has said were totally inappropriate surveillance techniques deployed against political activity.

Curiously, he no longer has any apparent concern about deploying invasive surveillance against sensitive political issues.


In a Motion Claiming that Appointing an Amicus Is “Unprecedented,” Billy Barr Argues Against Billy Barr Twice More

DOJ has availed itself of the opportunity to provide a response to Mike Flynn’s petition for a write of mandamus at the DC Circuit.

As I’ll show, I think the reason they did so was to make yet another argument that Mike Flynn can lie wherever and about whatever, but those lies may never be deemed material to a proceeding, and therefore he must go scot-free. Along the way, however, DOJ argues that merely appointing an amicus is a totally unprecedented act. And to get there, DOJ twice argues against DOJ.

DOJ says only DOJ can determine if Flynn can lie and lie and lie

I’ve long believed that Sullivan’s order that amicus John Gleeson consider whether Flynn should be held in contempt for perjury made Flynn’s challenge more airtight. Indeed, the DC Circuit didn’t even include that among the things it asked to be briefed. Nevertheless, Sullivan included it, mostly to point out that even if the Circuit resolved the motion to dismiss, the question of whether Flynn should be held in contempt remains. Sullivan argues along the way that contempt is part of the court’s inherent authority.

Regardless how this Court resolves the Rule 48 issue, questions remain whether Mr. Flynn should be subject to any sanction pursuant to statute, the Federal Rules, and federal courts’ inherent authority to discipline those who fail to tell the truth under oath and obstruct justice in the courtroom. See 18 U.S.C. §§ 401–402; Fed. R. Crim. P. 42; Chambers v. NASCO, Inc., 501 U.S. 32, 41–44 (1991) (upholding court’s inherent authority to punish “acts which degrade the judicial system, including … misleading and lying to the Court” (quotations omitted)). This factbound inquiry involves well-established Article III powers, and the district court should be permitted to address it in the first instance.

The contempt power is “settled law” that “is essential to the administration of justice.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 (1987). It springs from the court’s Article III responsibility to protect its essential functions, including preserving the integrity of courts and the truthseeking process. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994). Under this inherent power, “a court may issue orders, punish for contempt, vacate judgments obtained by fraud, conduct investigations as necessary to exercise the power, bar persons from the courtroom, assess attorney’s fees, and dismiss actions.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993).

To be clear, a contempt finding or sanction against Mr. Flynn may prove unwarranted. If the representations in his January 2020 declaration are true, they present attenuating circumstances for his prior, contrary statements. But the nature and extent of Mr. Flynn’s reversals under oath—from whether he lied to the government in January and March 2017, to whether he was coerced into pleading guilty, misled by his former attorneys, or improperly dissuaded from withdrawing his guilty plea in 2018 when Judge Sullivan offered that option—raise questions that any judge should take seriously. They thus provide a basis for invoking the district court’s authority to “conduct investigations as necessary.” Id.7

7 Contrary to Mr. Flynn’s suggestion (Pet. 11–17), Judge Sullivan’s appointment of an amicus to brief the contempt power is appropriate. Because contempt implicates core Article III powers, “Courts cannot be at the mercy of another Branch in deciding whether [contempt] proceedings should be initiated.” Young, 481 U.S. at 796. That is why the Federal Rules explicitly authorize the appointment of a special prosecutor to investigate contempt. See id.; see also Fed. R. Crim. P. 42(a)(2). Judge Sullivan’s amicus order is more restrained: It does not appoint Judge Gleeson to prosecute any contempt charge, but merely to address whether initiating a contempt proceeding here would be appropriate, and gives Mr. Flynn the last word on the question

The government must have anticipated this, because it argues at length that Flynn’s lies didn’t obstruct anything, without ever explaining why not. Along the way, they bizarrely argue there’s no evidence of he lied out of contempt for the court, suggesting that this happens all the time.

Petitioner also cannot be prosecuted for contempt because there is no evidence of “contumacious intent.” Brown, 454 F.2d at 1007. Even assuming that petitioner had the intent to commit perjury, that would not establish that he had the “inten[t] to obstruct the administration of justice.” Sealed Case, 627 F.3d at 1238. There is no indication that petitioner 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. Rather, the record shows that petitioner—like other defendants who enter pleas they later seek to withdraw— pleaded guilty with the intent to resolve the allegations against him on the best terms he thought possible at the time. Doc. 160-23, at 8-9. Our adversarial system treats plea colloquies and later motions to withdraw as an accepted part of normal judicial proceedings. Fed. R. Crim. P. 11(b), (d). An intent to acquiesce in the prosecution’s charges, even falsely, is not an intent to interfere with judicial proceedings themselves for purposes of contempt under Section 401(1).

DOJ then argues that only DOJ could prosecute Flynn for perjury.

I have zero doubt that Neomi Rao will adopt this view, for present purposes, because she has never met a ridiculous argument she didn’t like. But it would be shameful for any self-respecting judge to do so, as it effectively eviscerates judicial authority.

Appointing an amicus is unprecedented

DOJ then argues that Judge Sullivan did something unprecedented, which is what they use to justify issuing a writ.

III. A Writ Of Mandamus Is Appropriate And Necessary Relief In Light Of The District Court’s Unprecedented Order

Several pages later, after laying out the very high bar for a writ of mandamus, the government describes what Sullivan has done: appoint an amicus.

For the same reasons that the mandamus factors were met in Fokker and In re United States, those factors are met here. The only distinction between the cases is that, in Fokker and In re United States, the district court had entered an order denying the motion, while here the district court has entered an order providing for further proceedings and contemplating additional, court-initiated criminal charges.

The government is basically arguing that even appointing an amicus amounts to deciding against Flynn. Nowhere does the government claim that Flynn would be injured by this amicus, and Flynn’s only claim to injury is the delay (he himself is responsible for over a year of delay on this case).

Billy Barr argues against Billy Barr

Appropriately, for a DOJ that has refuted its repeated claims that Flynn’s lies were material by arguing they weren’t material, Billy Barr once against argues against Billy Barr.

This brief does so in two ways.

As I’ve noted, DOJ needs some kind of explanation for what changed their opinion. In front of Sullivan, they argued they had gotten “new” information, none of which is new.

Jocelyn Ballantine is (inexplicably) on this brief. She cannot argue those other things are new, because she knew all of them when she argued, in the past, that Flynn’s lies were material.

So this brief, while presenting all that other not-new information (without making any of the arguments necessary to justify DOJ’s flip-flop), doesn’t argue that it is new.

Instead, this brief argues that the investigation into Peter Strzok and Andrew McCabe is “new.”

Thereafter, new information emerged about essential participants in the investigation. Strzok was removed from the investigation due to apparent political bias and was later terminated from the FBI. The second interviewing agent was criticized by the Inspector General for his tactics in connection with the larger investigation. See Doc. 169, at 6-7. And McCabe was terminated after the Department of Justice determined that he lied under oath, including to FBI agents. Office of the Inspector General, U.S. Dep’t of Justice, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (Feb. 2018).

There are several problems with this.

First of all, DOJ never managed to indict McCabe for his alleged lies, and whether he lied is currently being litigated. Also, DOJ IG has reviewed Strzok’s conduct at great length — including the documents that at the District level DOJ claimed falsely were new — and it affirmatively stated that any bias Strzok have did not affect any decision reviewed.

But the most important reason this is outright absurd is that both of these things were public and known to Flynn on December 18, 2018 (indeed, the investigation into Strzok was known to Flynn when he pled the first time). As Beth Wilkinson noted in Sullivan’s response, Flynn disclaimed those things under oath!!!

After being placed under oath again, Mr. Flynn confirmed that (1) he did not wish to “challenge the circumstances” surrounding his FBI interview; (2) by pleading guilty he would be giving up “forever” his right to challenge that interview; (3) he knew at the time of his interview that lying to the FBI was a crime; and (4) he was “satisfied with the services provided by [his] attorneys.” Id. at 7–9. Mr. Flynn also disclaimed any reliance on revelations that certain FBI officials involved in the interview were being investigated for misconduct. Id. at 9.

We’re five months past the time Billy Barr appointed Jeffrey Jensen to go come up with some excuse to dismiss the Flynn prosecution, and DOJ still can’t decide (or find anything) what is new to justify the flip-flop.

But there is an even bigger Billy Barr belly flop in this response. As Wilkinson noted in the Sullivan response, in its motion to dismiss, DOJ acknowledged that it can only dismiss the prosecution with leave of the judge.

The government’s motion acknowledges that Rule 48 does not require Judge Sullivan to serve as a mere rubber stamp.

[snip]

First, the motion acknowledges that a Rule 48(a) dismissal requires leave of the court. Id. at 10. While the government argued that the court’s discretion was “narrow” and “circumscribed,” id., it did not argue that the court lacked discretion altogether.

Barr reiterated this point in his interview with Catherine Herridge.

Does Judge Sullivan have a say?

Yes. Under the rules, the case can be dismissed with leave of court. Generally, the courts have said that that provision is in there to protect defendants, to make sure the government doesn’t play games by bringing a charge and then dismissing it; bringing another charge, dismissing it. But he does have a say.

Now, after Bill Barr’s DOJ has twice said that the Judge has a say, Billy Barr’s DOJ argues that the District Court has no authority to reject it.

Simply put, the district court has no authority to reject the Executive’s conclusion that those reasons justify a dismissal of the charges.

Again, Neomi Rao will have no embarrassment in agreeing even with a seemingly schizophrenic argument that will help Trump out, and she may well bring Karen Henderson along.

But this is an embarrassment. Bill Barr keeps shredding the credibility of the Justice Department by arguing against past arguments he has personally approved, even very recent ones. There’s no longer any pretense they have to make and sustain an argument, only provide words on a page for captive judges to rubber stamp.


In Opposing Mandamus, Judge Sullivan Notes Schrodinger’s Materiality

Beth Wilkinson, the attorney representing (with the approval of the Office of US Courts) Judge Emmet Sullivan in Mike Flynn’s mandamus petition has submitted her brief making a very strong case opposing the petition. The brief argues what I have: that DOJ argued repeatedly and forcefully that Mike Flynn’s lies were material — and Judge Sullivan twice agreed — before DOJ flip-flopped and claimed the lies were not material.

Wilkinson lays out three instances where the government has argued Flynn’s lies were material and the District has agreed.

December 1, 2017

The statement of offense recounted three sets of materially false statements. Two involved lies Mr. Flynn told to the FBI, in a January 24, 2017 interview, regarding his contacts with Russia and other countries regarding U.S. foreign policy. Id. at 2–5. The remaining statements involved lies to the DOJ, in documents Mr. Flynn filed on March 7, 2017, about work that he and his consulting firm did for Turkey. Id. at 5.

[snip]

At this hearing, the government represented the basis for its charge. Among other things, the government claimed that “the defendant made material false statements and omissions during an interview with the [FBI] on January 24, 2017” regarding his interactions with Russia, id. at 14; that “[a]t the time of the interview, the FBI had an open investigation into Russia’s efforts to interfere in the 2016 presidential election,” id. at 14–15; and that “on March 7, 2017, the defendant filed multiple documents with [DOJ] … pertaining to a project performed by him and his company for the principal benefit of the Republic of Turkey” where “the defendant made materially false statements and omissions,” id. at 17. The government also provided a detailed description of why each statement was materially false. See id. at 15–18.

December 18, 2018

A full year after Mr. Flynn originally pleaded guilty, the parties filed sentencing memoranda. The government’s memorandum reiterated that Mr. Flynn’s false statements in both the January 2017 FBI interview and the March 2017 DOJ filings were “material” under § 1001. Dkt. 46 at 2–4. Mr. Flynn “d[id] not take issue” with the government’s description of his offense. Dkt. 50 at 7.

[snip]

Only after these repeated offers and colloquies did Judge Sullivan accept Mr. Flynn’s guilty plea to making materially false statements to the government. Id. at 16.

January 7, 2020

In January 2020, the government filed a supplemental sentencing memorandum, reiterating its representations about Mr. Flynn’s guilt. See Dkt. 150 at 5–14. The government again asserted that “this case is about multiple false statements that the defendant made to various DOJ entities.” Id. at 5; see also id. at 9, 12–13, 17 (explaining bases for materiality). The government recommended that Mr. Flynn be sentenced to 0 to 6 months in prison, noting that he had committed a “serious” offense, in a position of “public trust,” that undermined “[t]he integrity of our criminal justice [system, which] depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime.” Id. at 2, 26, 31.

After claiming Flynn’s lies were material three different times, the brief notes, DOJ and Flynn claimed they weren’t.

May 7, 2020

After spending more than two years claiming that Mr. Flynn’s “false statements to the FBI on January 24, 2017, were absolutely material,” Dkt. 132 at 10, the government now claimed that any lies by Mr. Flynn in the same interview were “not … material,” Dkt. 198 at 2.

This flip-flop is one of four things Wilkinson points to that questions any presumption of regularity here. First, she notes that the government has not withdrawn its past filings, including those asserting Flynn’s lies were material.

Fourth, the government has not moved to withdraw any of its prior pleadings in the case, including its sentencing memoranda, or any of the representations it previously made in open court regarding the purported materiality of Mr. Flynn’s false statements.

Then she notes that the government is now claiming that all those past statements, made under the Rules of Professional Conduct requiring accurate representations to the court, were not true.

The relevant facts are set forth in detail above. For several years, the government represented to the district court, across multiple court filings and appearances, that Mr. Flynn was guilty of making materially false statements. As recently as January of this year, the government maintained those representations. And Mr. Flynn repeatedly affirmed his guilt, under oath and penalty of perjury, despite being given multiple opportunities to disclaim it. It was not until this year that Mr. Flynn, and then the government, told the district court that its finding of guilt should be reversed and that the government’s prior solemn representations were legally and factually untrue.

I’ve argued that DOJ has put itself in a position where their current stance may be estopped by all their prior stances. Wilkinson has certainly laid out the record to make that case.

Update: Corrected that Wilkinson only included the times DOJ and Flynn agreed the lies were material, a total of three times. Judge Sullivan has found them to be one more time.

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