Steve Bannon’s Bas-Relief Confession that Trump Told Him to Deny Discussing Sanction Relief

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After a week of writing about Mike Flynn and more Mike Flynn, I’m finally getting around to the transcripts the House Intelligence Committee wrote last week. A bunch of frothy right wingers have pointed to the transcripts as PROOF OF NO COLLUSION, which is hilarious. I’ve barely begun reviewing them, but some glaring holes in the investigation include:

  • The key players — Mike Flynn and Paul Manafort, but also Rick Gates — did not testify
  • Two witnesses (Michael Cohen and Roger Stone) were convicted for the lies they told to the committee and a third (Erik Prince) is reportedly under investigation, even if Billy Barr’s DOJ doesn’t prosecute Trump flunkies
  • Multiple witnesses (Michael Caputo, Steve Bannon, and Jared Kushner, for starters) denied knowing people or having evidence their Mueller materials show they had

Republicans mostly asked each witness, “did you collude?” which predictably elicited the “no” answers the frothers are now pointing to as PROOF. Democrats spent most of their time trying to get recalcitrant witnesses to answer questions they refused to answer rather than trying to corner them into something useful.

The investigation was a shit-show.

The craziest thing (thus far, anyway), is Steve Bannon’s two appearances. Bannon testified in January 2018 and invoked White House guidance to refuse to answer questions from both the transition and post-inauguration periods, periods others had addressed. He also claimed any communications of interest would have been turned over by the campaign, thereby hiding emails he had with Roger Stone using his personal email where they explicitly discussed Julian Assange.

When Bannon went back a month later, having consulted with Devin Nunes in the interim and after Nunes appears to have shared a transcript of Bannon’s first appearance with the White House, he provided the committee a bunch of questions he would answer — all “no” answers.

Here’s how just some of those questions parroted back (for the second time in the hearing) looked:

MR. CONAWAY: After November 8th, 2016, did you meet with Ambassador Kislyak?

MR. BANNON: No.

MR. CONAWAY: On March 27, 2017, The New York Times reported that in mid-December of 2016 Kushner met with Sergei Gorkov of the VEB. Were you aware of this meeting?

MR. BANNON: No.

MR. CONAWAY: Did you attend a December 2016 meeting with Kushner that Kushner had with Gorkov?

MR. BANNON: No.

MR. CONAWAY: Did Mr. Prince have any role in the current administration?

MR. BANNON: No.

MR. CONAWAY: Was there any discussion on January 27th, 2017, at the White House regarding Mr. Papadopoulos, who was contacted by the FBI that day?

MR. BANNON: No.

MR. CONAWAY: Has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that the FBI had approached him?

MR. BANNON: Not to my knowledge.

MR. CONAWAY: Was the fact that the FBI approached Mr. Papadopoulos on January 27th communicated to President Trump?

MR. BANNON: Not to my knowledge.

MR. CONAWAY: Did Mr. Trump ever discuss with you any conversations between Donald Trump Jr. and WikiLeaks after the election?

MR. BANNON: No.

MR. CONAWAY: Did you ever meet with Devin Nunes about the Russia investigation?

MR. BANNON: No.

MR. CONAWAY: While at the White House, were you ever instructed to take any action that you believe could hinder the Russian investigation in any way?

MR. BANNON: No.

MR. CONAWAY: Were you ever given any instruction at the White House that you felt might amount to an effort to obstruct justice?

MR. BANNON: No.

MR. CONAWAY: Did you have any conversations with Director Comey after the election about whether he would remain the head of the FBI?

MR. BANNON: No.

MR. CONAWAY: Once you were part of the administration, were you a part of any discussions about how to approach the Russian, vis-à-vis the sanctions, whether to do away with them or in any way minimize the effects of the sanctions?

MR. BANNON: No.

Here’s how Adam Schiff got Bannon to admit that he was literally reading from a script the White House gave him (remember that Bannon’s lawyer, William Burck, also represented White House Counsel Don McGahn).

MR. SCHIFF: Mr. Bannon, who wrote these questions?

[Discussion off the record.]

MR. BANNON: My understanding, Mr. Schiff, is that these came from the transcript.

MR. SCHIFF: No, no, no. The questions that Mr. Conaway just asked you the questions. I asked you earlier if you had been authorized by the White House to answer all in the negative. Who wrote these questions?

MR. BANNON: Same answer.

MR. SCHIFF: What’s the same answer? Who wrote the questions?

MR. BANNON: My understanding is they came from the transcript.

MR. SCHIFF: What transcript are you talking about?

MR. BANNON: This transcript of my first interview.

[snip]

MR. SCHIFF: Well, how were they produced? How do you know that the White House has authorized you to answer them? [Discussion off the record.]

MR. BANNON: My counsel informed me that these were the questions the White House authorized me to answer.

MR. SCHIFF: But you didn’t write these questions?

MR. BANNON: No.

MR. SCHIFF: And your counsel didn’t write these questions?

MR. BANNON: No.

MR. SCHIFF: So these questions were supplied to you by the White House?

[Discussion off the record.]

MR. BANNON: As far as I know.

The thing is, most of these are now recognizably misdirection from some known damning detail. For example, Bannon did not attend the November 30, 2016 meeting with Sergey Kislyak at Trump Tower, but he was invited. Bannon’s lack of knowledge of Jared Kushner’s December meeting with Sergei Gorkov doesn’t make the meeting itself less damning — arguably, it suggests Kushner kept it on a close hold — and it doesn’t rule out Bannon being involved in a meeting with Gorkov sometime after that. Bannon’s narrow denial that Erik Prince had a role in the administration distracts from Prince’s role as a go-between with Russia during the transition, something Bannon was personally involved with (and covered up by deleting his relevant text messages). There was a discussion among senior campaign officials of the link that WikiLeaks sent Don Jr in September 2016, but it was during the election, not after it. Bannon didn’t have conversations with Jim Comey about firing him, but he had a ton of conversations about firing Comey, eight times on May 3 and 4, 2017 alone. Even the questions about obstruction of justice are consistent with explicit requests that Bannon obstruct, but that took place somewhere else, like Mar-a-Lago or Bedminster (and it’s notable that Bannon’s initial testimony dramatically backed off some of the claims Bannon made to Michael Wolff that had just been published in Fire and Fury).

As Adam Schiff begins to figure out what happened, he asks questions that make it clear that Bannon did not meet — in person — with Nunes, but did speak to him on the phone.

MR. SCHIFF: Now, I see there’s a question on here, did you ever meet with Devin Nunes about the Russia investigation, and you’ve answered that “no.” But you’ve also answered, when my colleague asked you, that you have discussed — you had discussions with Mr. Nunes and you refused to answer the question about whether it was about the Russian investigation. Is that correct?

[Discussion off the record.]

MR. BANNON: However I answered, it’s in the transcript.

MR. SCHIFF: Let me just ask you again. Did you ever meet with Devin Nunes about the Russian investigation?

MR. BANNON: No.

MR. SCHIFF: Did you ever discuss the Russia investigation with Devin Nunes?

[Discussion off the record.]

MR. BANNON: That’s not a question I’m authorized to answer.

Even before that, Schiff cops on to Bannon’s denial about something — whether George Papadopoulos alerted the White House after he was first questioned about the FBI — that Bannon knows nothing about.

MR. SCHIFF: So one of the questions that you were supplied by the White House was, has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that he had been — that the FBI had approached him? How do you know the answer to that, Mr. Bannon?

[Discussion off the record.]

MR. BANNON: Can you just ask the question again?

MR. SCHIFF: Yes. One of the questions that the White House gave you to answer to our committee was, has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that the FBI had approached him?

MR. BANNON: I think I said, “Not to my knowledge.”

MR. SCHIFF: So you really did don’t know, do you?

MR. BANNON: That’s — not to my knowledge.

MR. SCHIFF: Why did the White House propose a question to you that you couldn’t answer within your knowledge?

[Discussion off the record.]

MR. BANNON: You have to ask the White House that.

In Papadopoulos’ Congressional testimony (which took place in October 2018, so six months after Bannon’s second HPSCI interview), the coffee boy would admit that he emailed Marc Kasowitz, who was then Trump’s personal attorney, sometime after his FBI interview.

Q And you didn’t talk to anyone from the Trump organization about that interview with the FBI?

A I don’t think I did, no.

Q So you were interviewed again by the FBI —

A I can’t remember if I reached out to Marc Kasowitz about either that or my subpoena from the Senate. And I emailed him and I said, Look, would you be interested in representing me? I think that’s what happened. But I don’t — I can’t remember exactly why I emailed him, but I think I emailed Marc Kasowitz’ firm sometimes after the interview, but I don’t remember if he ever responded or anything like that.

This post writes up what we know about Papadopoulos’ testimony.

This makes it clear, then, that the script Bannon was given was a ham-handed attempt to get a bunch of denials in the record, denials of things that actually did happen.

Among the questions the White House included was one designed to get him to deny he had discussed eliminating sanctions on Russia.

MR. CONAWAY: Once you were part of the administration, were you a part of any discussions about how to approach the Russian, vis-à-vis the sanctions, whether to do away with them or in any way minimize the effects of the sanctions?

MR. BANNON: No.

Of course, this “no” answer only says Bannon didn’t continue to discuss ending sanctions on Russia after inauguration, but he did beforehand.

There is testimony on the Mueller Report about Bannon’s personal involvement in discussions about the Russian sanctions imposed on December 28, 2016. But Bannon — in testimony on February 12, 2018, so three days before he read this script before HPSCI — claimed to have forgotten those conversations.

Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237

[snip]

In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252

[snip]

Flynn recalled discussing the sanctions with Bannon the next day and that Bannon appeared to know about Flynn’s conversation with Kislyak. 1274 Bannon, for his part, recalled meeting with Flynn that day, but said that he did not remember discussing sanctions with him. 1275

[snip]

Flynn recalled discussing the sanctions issue with incoming Administration official Stephen Bannon the next day. 100 Flynn said that Bannon appeared to know about Flynn’s conversations with Kislyak, and he and Bannon agreed that they had “stopped the train on Russia’s response” to the sanctions. 101

1275 Bannon 2/12/18 302, at 9.

101 Flynn 1/19/18 302, at 4-5. Bannon recalled meeting with Flynn that day, but said he did not remember discussing sanctions with him. Bannon 2/12/18 302, at 9.

The White House gave Bannon a script, telling him to deny his involvement in reaching out to Russia on sanctions. And the specific form of the question — which asks about doing away with them — suggests those conversations on December 28, 2016 went further than the Mueller Report describes.

Which explains why Trump is trying to ensure Flynn avoids prison time for hiding that detail.

Schrodinger’s Materiality: Bill Barr’s DOJ Has an Active Filing Arguing Flynn’s Lies Were Material

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Bill Barr’s DOJ has this to say about whether Mike Flynn’s lies to the FBI on January 24, 2017 were material.

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

[snip]

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

[snip]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

You might be forgiven for believing that Bill Barr’s DOJ didn’t made a vigorous argument to Judge Emmet Sullivan that Flynn’s lies were material, one that remains active before Sullivan, because almost no coverage of recent events concerning Flynn accounts for the posture of the case, in which there are at least four pending decisions before Sullivan. Several of those active representations argue Flynn’s lies were material.

Instead, coverage claims that Bill Barr’s DOJ believes that Flynn’s lies were in no way material. It is true that, in a motion to dismiss the case submitted last week, Bill Barr’s DOJ argued the lies weren’t material.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

I know journalists are used to covering the Trump administration as a series of independent outrages, each one drowning out a prior newly inoperative one. But in courts, statements from a given party are presumed to have continuity, at least until those statements are resolved legally.

DOJ, generally, is assumed to have continuity in any proceeding, even between Administrations, and generally only changes position when the law or an interpretation of it changes, and as such would apply to all affected parties.

That’s all the more true within the span of one Administration. And in this case, Trump’s Acting Attorney General Rod Rosenstein agreed Flynn’s lies were material when he approved false statement charges against Flynn in December 2017, Trump’s Acting Attorney General Matt Whitaker’s DOJ argued Flynn’s lies were material when DOJ moved to sentencing in December 2018, Bill Barr’s DOJ argued “the FBI was engaged in a legitimate and significant investigation,” when it successfully defeated a request to dismiss the prosecution last fall, and Barr’s DOJ argued Flynn’s lies were material in January.

It is true that Barr’s DOJ has provided a claimed basis for changing its mind about the legitimacy of the investigation into Flynn and the materiality of the lies he told. It cites “newly discovered and disclosed information” as well as “recently declassified information.”

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.”

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

Not only is the reference to “newly declassified information” a tell that this information is claimed only to be new to Flynn, the motion to dismiss does none of the things legal filings are supposed to do to substantiate claims like this. There’s no declaration from Jeffrey Jensen describing the reasons for his review and explaining how, over three years into this investigation, he came to discover “new” information that hadn’t been considered by Rod Rosenstein and Matt Whitaker and Bill Barr or Robert Mueller and Jessie Liu when DOJ had previously argued this was a legitimate investigation. There’s no declaration from a Records Officer explaining how it is that the two files claimed to be new evaded anyone’s attention all these years and proving these documents hadn’t been reviewed by DOJ before. There’s not even a description in the filing specifying what it is that DOJ is claiming to be new, there’s just a citation to docket entries of stuff that was newly turned over to Flynn.

Plus, all of the facts on which this motion to dismiss relies — that the FBI hadn’t found anything in its counterintelligence investigation into Flynn, but decided to keep it open in early January 2017 when they discovered the Kislyak transcripts, and that people in DOJ and FBI had conflicting understandings of the status of the investigation leading up to the interview — has not only been known to DOJ but has been public since March 22, 2018, when Republicans released it in their Russian Report.

Director Comey testified that he authorized the closure of the CI investigation into General Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure was imminent.

[snip]

The Committee received conflicting testimony from Deputy Attorney General  (DAG) Yates, Director Comey, Principal Deputy Assistant Attorney General McCord, and Deputy Director McCabe about whether the primary purpose of the interview was investigating potentially misleading statements to the Vice President, which the Vice President echoed publicly about the content of those calls; a possible violation of the Logan Act; or a desire to obtain more information as part of the counterintelligence investigation into General Flynn.

Sullivan knows well that DOJ knew of this information, because he litigated a long dispute over this information starting in August and wrote an opinion on it in December. He even reviewed two of the 302s the government relies heavily on — those of Mary McCord and Sally Yates — to make sure the summaries DOJ gave to Flynn were sufficient, which is pretty good proof that DOJ knew about them and their representations about the almost-closed investigation and the discussions about the multiple things FBI was investigating. Billy Barr claimed in his interview that this was new to him — something he has not done in a representation to the court — but then described just what appears in the passage from the HPSCI Report, something which was public (and circumstances to which he alluded in his confirmation hearing). In fact, FBI has gone on the record to say that these records had already been shared with DOJ IG (which completed a report in December that didn’t treat them as unusual) and the John Durham inquiry (which began a year ago).

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

So these documents aren’t even new to oversight elements in DOJ outside of the prosecutorial team that argued for the materiality of this case. Because the documents are not new to DOJ, DOJ has offered no valid reason to flip-flop about its view on the legitimacy of the investigation and the materiality of Flynn’s lies.

All the more so given one more detail about this case. Before prosecutors submitted the sentencing memo in January that made an aggressive case for the legitimacy of the prosecution and the materiality of Flynn’s lies, they had to get two extensions to secure the necessary approvals. In December, prosecutors got a week extension for their sentencing memo to get approval from the “multiple individuals and entities” who would need to approve it.

There are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations.

Then, on January 6, the government asked for and got one more day.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so. The government respectfully requests that this Court extend the government’s deadline to provide its supplemental sentencing memorandum to Tuesday, January 7, 2020, at 12:00 p.m.

Having twice granted extensions so prosecutors could be sure they got all the approvals they needed for their sentencing memorandum, and absent any claim since they didn’t secure those approvals, Judge Sullivan would be well-justified in treating that sentencing memorandum arguing forcefully for the legitimacy of the investigation into Flynn as the view of the entire DOJ, up to and including the Attorney General.

And since DOJ’s claims to have discovered “new” information since then are not supported by any proof and are in fact refuted by the public record, he has good reason to treat the earlier representations from Bill Barr’s DOJ as the operative one.

In Judge Sullivan’s court, Bill Barr’s DOJ’s claim that Flynn’s lies are material remains an active legal claim in support of sentencing, even while Bill Barr’s DOJ claims something entirely different in opposition to continuing the prosecution. Even Bill Barr has conceded that Judge Sullivan gets to decide whether to accept the motion to dismiss. If Sullivan rejects it, he can move immediately to sentencing, relying on Bill Barr’s DOJ’s argument that Flynn’s lies were material. Bill Barr is arguing with himself here.

Flynn’s supporters have started to argue that Sullivan’s appointment of John Gleeson conflicts with the recent SCOTUS decision in Sineneng-Smith which prohibits courts from seeking out opinions from parties not before the court to present issues that haven’t otherwise been presented.

One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”

That’s not what’s happening here. Judge Sullivan is asking Gleeson to argue the view of a party that remains before the court: that of DOJ, which argued in December 2017 and in December 2018 and in November 2019 and in January 2020 that Flynn’s lies are material and the prosecution just. The issues of materiality have been before the court since 2017, and DOJ has argued for the materiality of Flynn’s lies vigorously. I have no idea what Sullivan plans to do with respect to additional testimony. But even based on the public record as it exists today (not least because the motion to dismiss egregiously misrepresents the exhibits it relies on and in them, presented evidence that the purpose of the Flynn interview was clear), Gleeson could easily substantiate DOJ’s still active representation before Judge Sullivan’s court (in their still-pending sentencing memorandum) that Flynn was rightly prosecuted for material lies to the FBI.

Unlike Trump, Bill Barr doesn’t get to just ignore claims his own DOJ has made in the past. He can claim he has reason to reverse those claims, but there, too, Sullivan has discretion. DOJ would have to ask leave to modify its sentencing recommendation, and provide proof lacking here they have reason to do so. As it stands, however, DOJ has not asked to modify the sentencing recommendation, and thus their claims about materiality remain before Sullivan unchanged, sitting there in the docket right next to Bill Barr’s DOJ’s radically different claims.

There has been some shitty commentary presenting Bill Barr’s motion to withdraw as a Both-Sides issue, but totally misconstruing which are the two sides, claiming it pits DOJ against critics.

The Justice Department argues that the FBI shouldn’t have conducted its Jan. 24, 2017, interview of Flynn, because the bureau was already aware through phone intercepts of what he had discussed with the Russian ambassador and there wasn’t proper justification for continuing the investigation of Flynn. That request to dismiss, put forward by Attorney General William Barr, has been criticized by nearly 2,000 former Justice Department officials and hailed by Trump and his supporters.

But it totally misconstrues the two sides here. They are Bill Barr’s DOJ versus Bill Barr’s DOJ.

This is the rare opportunity where the kind of Both-Sides journalism the Beltway press loves to practice has merit. On one side, there’s Bill Barr’s DOJ, which has a currently active argument that Mike Flynn’s lies were material to a legitimate investigation. On the other side, there’s Bill Barr’s DOJ, which has a different argument (one that conflicts with the exhibits presented with it) that because there was no legitimate investigation at the time, Mike Flynn’s lies were not material.

Three Days in December 2016: Sanctions, Nukes, Syria, and Russia

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In this post, I described how badly much of the press had misrepresented the unmasking report released by Ric Grenell yesterday. The transcripts of the calls Mike Flynn had with Sergey Kislyak were identified by the FBI, FBI never put them into a finalized intelligence product, and Jim Comey told James Clapper about them.

The unmaskings described on the list released yesterday, by contrast, were finalized NSA products, not unfinished FBI ones, and none of the dates correlate with the discovery of Flynn’s calls.

In other words, the masking report released yesterday does not include the calls in question. These aren’t the droids you’re looking for.

Indeed, there is no evidence in the public record that any of these calls reflected any suspicion of wrong-doing.

That said, there were a flurry of requests to unmask Flynn’s name around mid-December 2016 that experts have highlighted both publicly and privately. While we can’t speak to the content of the intercepts in question, it is certain that Flynn was involved or mentioned in some communications in the days before December 14, 2016 that attracted an interesting set of people around the US government.

I’d like to look at what that flurry looks like. Before I start, let me lay out some assumptions. First, there may be a delay between the time NSA obtained communications themselves and the time it finalized a report on them, so the December 14 start date for this flurry may have happened days or more later after the communications were collected (though given how some of the most senior people in government reviewed these, that’s not necessarily true). Second, while there’s reason to believe this flurry is all related, we can’t be certain. Finally, remember that Flynn may not be the only American on this list; there could be any number of others, and their names might have gotten unmasked as well. To reiterate: Flynn wouldn’t necessarily have been a party to these communications; rather, he could have been discussed in them.

On the first day of this flurry, a significant group of people at Treasury — up to and including Treasury Secretary Jacob Lew — asked to unmask Flynn’s identity. This would suggest sanctions might be involved. Note, by that time Adam Szubin had moved to head Terrorism and Financial Crimes, so the issue might have more directly concerned money laundering than sanctions (though he appears to have still been in charge of OFAC as well).

In addition, John Brennan unmasked his identity, which suggests the intelligence immediately got briefed to the top of CIA.

Also that day, UN Ambassador Samatha Power unmasked Flynn’s identity twice that day, which (if this is part of the flurry) suggests someone in New York may have been involved.

The next day, December 15, Jim Comey got this intelligence and unmasked Flynn’s identity. Importantly, given the draft EC closing the Flynn investigation on January 4, 2017, nothing about this seems to have triggered notice to the Crossfire Hurricane team, which either suggests it involved an entirely different topic or proves that the FBI didn’t have it in for Flynn and treated some communications involving Flynn and Russia as routine.

John Brennan got something — either the same or a follow-on report, or something else entirely different — on December 15. That seems to have filtered down to CIA officials working on the Middle East, including Syria. But there’s not evidence that counterterrorism experts got it or were very interested, which is interesting given that Flynn always pitched cooperation with Russia in terms of cooperating against ISIS.

The same day, a whole bunch of people at NATO got it, including the Policy Advisor for Russia (Scott Parrish, too, seems to focus on Russia or Eastern Europe).

In addition, a senior person at Department of Energy and someone on the intelligence side there got it. This suggests nuclear power or proliferation is involved.

Finally, on December 16, four people at CIA whose location and portfolio are unknown got it, as well as the Ambassador to Russia (it would be unsurprising if those CIA people were also in Russia).

December 14, 2016

CIA Director John Brennan

UN Ambassador Samantha Power (twice)

Treasury

Secretary of Treasury Jacob Lew

Deputy Secretary of Treasury Sarah Raskin

Under Secretary of Treasury Nathan Sheets

Acting Under Secretary of Treasury Adam Szubin

Acting Assistant Secretary of Treasury, Office of Intelligence & Analysis Danny McGlynn

Acting Assistant Secretary of Treasury, Office of Intelligence & Analysis Mike Neufeld

Office of Intelligence & Analysis Patrick Conlan

December 15, 2016

FBI Director Jim Comey

CIA

CIA Director John Brennan

Deputy Assistant Director of Near East Mission Center [redacted]

Chief Syria Group [Redacted]

NATO

US Ambassador to NATO Douglas Lute

US Deputy Chief of US Mission to NATO Lee Litzenberger

US NATO [CIA?] Advisor to Ambassador Douglas Lute

US NATO Defense Advisor (DEFAD) Robert Bell

US NATO Deputy DEFAD James Hursh

US Representative to NATO Military Vice Admiral John Christenson

US NATO Office of the Defense Advisor (ODA) Policy Advisor for Russia Lieutenant Colonel Paul Geehreng

US NATO Political Officer [redacted] Scott Parrish

US NATO Political Advisor [POLAD] Tamir Waser

Department of Energy

US Department of Energy Deputy Secretary Elizabeth Sherwood-Randall

US Department of Energy Intelligence and Analysis, Executive Briefer

December 16

State

US Ambassador to Russia John Tefft

CIA

Chief of Station [Redacted]

Deputy Chief of Station [Redacted]

Collection Management Officer [Redacted]

Collection Management Officer [Redacted]

The most credible explanation I’ve seen for this flurry is that it relates to Flynn’s scheme to sell nuclear energy to Saudi Arabia (because it would involve sanctions, so Treasury, and proliferation, so Energy, and partnership with Russia), but that explanation doesn’t account for some of these readers, most notably someone with a Syria portfolio (the entire nuclear plan was a scheme to lure Russia away from Iran). Plus, unless those CIA people are tied to Saudi Arabia, these readers don’t include the key target of this scheme.

Moreover, it’s unclear why so many people at NATO would focus on this so quickly.

Whatever this flurry (or flurries), what Ric Grenell has done by releasing the list is given whatever adversary is involved, along with Mike Flynn, a picture of how this information flowed within the federal government.

Maybe that — and not any disclosure about who unmasked Flynn’s call with Sergey Kislyak — was the point.

Update: Here’s the first story on Jared Kushner’s request for a back channel, which Kislyak reported back to Moscow. It would have triggered Power (the meeting was in NY), Russia, Syria (Kushner said he wanted to cooperate on Syria). But it’s not clear why Treasury got this first, unless the message included set-up to the meeting with Sergei Gorkov, which took place on December 13. This being a report on Gorkov would explain the response at Treasury, but not other elements, such as the involvement of Energy (unless the Gorkov meeting was significantly different than has been reported).

As Richard Burr Rushes to Release Volume Five of SSCI’s Russian Investigation, the FBI Closes In

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Update: As I was posting this, reports that Burr is stepping down as Chair of SSCI came out.

The LAT has a big scoop revealing that the FBI seized Richard Burr’s cell phone yesterday, having gotten a probable cause warrant incorporating information they obtained via a search of his iCloud.

Federal agents seized a cellphone belonging to a prominent Republican senator on Wednesday night as part of the Justice Department’s investigation into controversial stock trades he made as the novel coronavirus first struck the U.S., a law enforcement official said.

[snip]

Such a warrant being served on a sitting U.S. senator would require approval from the highest ranks of the Justice Department and is a step that would not be taken lightly. Kerri Kupec, a Justice Department spokeswoman, declined to comment.

A second law enforcement official said FBI agents served a warrant in recent days on Apple to obtain information from Burr’s iCloud account and said agents used data obtained from the California-based company as part of the evidence used to obtain the warrant for the senator’s phone.

[snip]

The same day Burr sold his stocks, Burr’s brother-in-law, Gerald Fauth, sold between $97,000 and $280,000 worth of six stocks, according to documents filed with the Office of Government Ethics. Fauth serves on the National Mediation Board, which provides mediation for labor disputes in the aviation and rail industries.

Burr has denied coordinating trading with his brother-in-law.

Given the progression from an iCloud warrant to the warrant for the cell phone, it’s likely the FBI is seeking out texts between Burr and his brother-in-law around the time of the stock sales. (The FBI often access iCloud to find out what apps someone has accessed, obtains a pen register to identify communications of interest using that app, then seizes the phone to get those encrypted communications.)

The public evidence again Burr is quite damning, so there’s no question that this is a properly predicated investigation.

Still, coming from a DOJ that has gone to great lengths to protect other looting (and has not taken similar public steps against Kelly Loeffler), the move does raise questions.

Particularly given the focus that Richard Burr gave, during the John Ratcliffe confirmation hearing, to getting the final volume of the SSCI Report on 2016 declassified and released by August.

Richard Burr: Congressman, over the course of the last three years this committee has issued four reports about Russia’s meddling in our elections covering Russia’s intrusions into state election systems, their use of social media to attempt to influence the election, and. most recently confirming the findings of the 2017 Intelligence Community Assessment. While being mindful of the fact that we’re, um, in an unclassified setting, what are your views on Russia’s meddling in our elections?

John Ratcliffe: Chairman, my views are that Russia meddled or interfered with Active Measures in 2016, they interfered in 2018, they will attempt to do so in 2018 [sic]. They have a goal of sowing discord, and they have been successful in sowing discord. Fortunately, based on the work–the good work of this committee, we know that they may have been successful in that regard but they have not been successful in changing votes or the outcome of any election. The Intelligence Community, as you know, plays a vital role on insuring we have safe, secure, and credible elections and that every vote cast by every American is done so properly and counted properly.

Burr: Will you commit to bringing information about threats to the election infrastructure and about foreign governments’ efforts to influence to Congress so we’re fully and currently informed?

Ratcliffe: I will.

Burr; Will you commit to testify at this committee’s annual worldwide threats hearing?

Ratcliffe: I will.

Burr: And last question, over the last three years we have issued four reports. Number five is finished. Number five will go for declassification. Do we have your commitment as DNI that you would expeditiously go through the declassification process?

Ratcliffe: You do.

Burr: Senator Warner.

Mark Warner: Thank you Mr. Chairman. You actually took some of my questions.

Burr: My eyesight is good.

Warner: Mr. Ratcliffe, good to see you again and I appreciated our time, um, um, last Friday. I want to follow-up on a couple of the Chairman’s questions first. As we discussed, we’re … Volume Five, and so far our first four volumes have all been unanimous. Or maybe with the exception of one dissenting vote. If we get this document to the ODNI we need your commitment not only that we do it expeditiously, but as much as possible to get that Volume Five reviewed, redacted, and released, ideally before the August, the August recess. Now, I know you’ve not seen the report yet. All I would ask is, aspirationally that you commit to that goal, because I think as we discussed, to have a document that could be [big pause] potentially significant come out in the midst of a presidential campaign isn’t good or fair on either side. So if I could clarify a bit, recognizing that you’ve not seen the document is a thousand pages, that you’d try to get this cleared prior to August.

Ratcliffe: Vice Chairman, I would again, commit that I would work with you to get that as expeditiously as possible.

During the 2018 election, Burr had — at a time when the committee assuredly did not have the ability to rule it out — twice said there was no evidence of “collusion.” Burr has made no such claims recently.

Even just the Roger Stone disclosures from his trial make it clear “collusion” happened, and that’s ignoring the ongoing Foreign Agent investigation involving Stone. And the Intelligence Committees have been briefed on the existence of — and possibly some details about — either that or other ongoing investigations.

If Richard Burr is prepping to reverse his prior public comments about “collusion,” it might explain why the Bill Barr DOJ, which has stopped hiding that it is an instrument used to enforce political loyalty to Trump, would more aggressively investigate Burr than others.

Again, there’s no question that this is a properly predicated investigation. But in the Barr DOJ, properly predicated investigations about political allies of Trump all get quashed. This one has, instead, been aggressively and overtly pursued.

Billy Barr Put a Firearms Prosecutor in Charge of Reviewing a Counterintelligence Investigation

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The NYT published a story yesterday that will be very handy for the amicus that Emmet Sullivan appointed in the Mike Flynn case, John Gleeson. It describes two pieces of evidence that St. Louis US Attorney Jeffrey Jensen (whom Barr ordered to conduct a review of Flynn’s prosecution) and Timothy Shea (whose name was on the motion to dismiss asking Sullivan to dismiss the case) failed to account for in their motion.

Most notably, prosecutors interviewed Bill Priestap two days before the motion to dismiss, on May 5. Priestap’s notes have been portrayed by Flynn’s team as proof that the FBI tried to entrap Flynn. In the interview, Priestap disputed the interpretation of the notes that had already been released a week earlier.

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.

[snip]

Mr. Jensen and Ms. Ballantine, herself a veteran prosecutor, interviewed Mr. Priestap along with another prosecutor, Sayler Fleming, and an F.B.I. agent from St. Louis who was there to memorialize the encounter.

[snip]

Those notes reflected Mr. Priestap’s own thoughts before meeting with F.B.I. leadership to discuss how to question Mr. Flynn, the people said. A footnote in Mr. Shea’s motion included a reference to Mr. Priestap’s ruminations. The motion described them as “talking points.”

The notes also showed that the F.B.I. softened its interview strategy with Mr. Flynn. Officials decided that agents would be allowed to read back portions of the highly classified phone call transcripts to refresh Mr. Flynn’s memory. F.B.I. investigators felt at the time it was important to figure out whether Mr. Flynn would tell the truth in an interview.

The article also reveals the existence of an FBI email, dated April 23, that reflects the Bureau’s view that Prietap’s notes were not Brady material, but gave them to Flynn’s team only because they were not sensitive.

Eventually the F.B.I. agreed to release the documents because they contained no classified or sensitive material, even though they believed they were not required to share them with the defense, according to an email from lawyers in Mr. Boente’s office on April 23.

Finally, the article describes that Jensen started drafting the motion to dismiss “by the beginning of May,” which would be before interviewing Priestap (the FBI’s drafting of the Hillary declination before her interview is regarded as a key sin among the frothy right).

By the beginning of May, Mr. Jensen recommended to Mr. Barr that the charge be dropped, and the team began to draft the motion to dismiss it.

[snip]

As the lawyers digested the interview with Mr. Priestap, some prosecutors expressed concern that they were moving too fast. But other officials pointed out that in less than a week the department was due to respond to Mr. Flynn’s motion to dismiss the case, and argued against proceeding in that matter if they were about to drop the entire case.

So Jensen’s crack review of the propriety of the Flynn prosecution first turned over the document to Flynn, then started drafting the motion to dismiss, and only then decided to ask Priestap about what the notes mean. It will be interesting to discover whether whoever drafted the motion to dismiss had decided the notes were “talking points” before the Priestap interview and just ignored the interview entrely.

The NYT story reveals another detail, however: who, from Jensen’s team, is conducting this review, a St. Louis prosecutor named Sayler Fleming. Fleming’s day job seems to be entirely focused on prosecuting felon possession of firearms cases, along with typical related crimes, car-jacking and drug trafficking. Because of recent Supreme Court decision, that means he or she has fielded a bunch of appeals in recent months.

But nothing in PACER suggests he or she has any experience with counterintelligence at all, or even national security cases.

And that may explain one of the more egregious errors in the motion to dismiss. The motion admits that the case against Flynn, which was never closed, was predicated on both 18 USC 951 and FARA, two different kinds of Foreign Agent laws. But its analysis of the investigative purpose of the January 24, 2017 interview, claims that the FBI was only investigating the Logan Act.

Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act, 18 U.S.C. § 953. See Ex. 3 at 2-3; Ex. 7 at 1-2; Ex. 8 at 1-5, FBI Emails RE: Logan Act Jan. 4, 2017. Yet discussions with the Department of Justice resulted in the general view that the Logan Act would be difficult to prosecute. Ex. 3 at 2-3; Ex. 4 at 1-2, FBI FD-302, Interview of Sally Yates, Aug. 15, 2017 (Sept. 7, 2017); Ex. 5 at 9. The FBI never opened an independent FBI criminal investigation.

The motion adopts expressive language to suggest the investigative team vacillated between whether there was a criminal investigation or not — in the process, falsely suggesting an interview would only be appropriate if there were a criminal investigation.

Deputy Attorney General Yates and another senior DOJ official became “frustrated” when Director Comey’s justifications for withholding the information from the Trump administration repeatedly “morphed,” vacillating from the potential compromise of a “counterintelligence” investigation to the protection of a purported “criminal” investigation. Ex. 3 at 5; compare Ex. 5 at 5 (“[W]e had an open counterintelligence investigation on Mr. Flynn”), with Ex. 4 at 4 (“Comey had said something to the effect of there being an ‘ongoing criminal investigation’”).

It then goes on to suggest that because records searches had yielded nothing in the 18 USC 951 investigation, a call showing Flynn intervened to undermine official US policy with no hint that he did so on Trump’s orders would not by itself be relevant to a Foreign Agent investigation.

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI. Indeed, the FBI itself had recognized that it lacked sufficient basis to sustain its initial counterintelligence investigation by seeking to close that very investigation without even an interview of Mr. Flynn. See Ex. 1 at 4. Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3.

With its counterintelligence investigation no longer justifiably predicated, the communications between Mr. Flynn and Mr. Kislyak—the FBI’s sole basis for resurrecting the investigation on January 4, 2017—did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation. The calls were entirely appropriate on their face.

When the motion gets around to arguing — relying on the transcripts but not providing them — that Flynn’s call was totally cool, it assessed that question in terms of FARA (undisclosed lobbying) not 18 USC 951.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2. They provided no factual basis for positing that Mr. Flynn had violated FARA.

The motion then imagines that counterintelligence investigators would only interview someone about a transcribed call to learn his recollection of what had been said, again suggesting the Logan Act would be the only reason to interview Flynn.

With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime.

These moves in the motion to dismiss were always obviously problematic. The exhibits submitted with the motion, including Priestap’s own notes, make it crystal clear that the purpose of the interview was not primarily to investigate the Logan Act, but to determine whether Flynn was hiding a clandestine relationship with Russia, a question primarily implicating 18 USC 951, and in no way limited to or even primarily about FARA, as one claim in this motion suggests.

As such, the claims made about the counterintelligence investigation affirmatively misrepresent even the exhibits submitted in support of the filing. Plus, as noted, the motion makes claims about the transcripts, doesn’t provide them, but the exhibits provide abundant evidence to suggest those claims are wrong (the op-ed Gleeson wrote last week laying out the addition steps Sullivan might take in response to the motion to dismiss specifically suggests Sullivan order the release of the transcripts). Nor does the motion account for the fact that to this day the public evidence claims (improbably) that Flynn was acting on his own when he made that call, which by itself would support a counterintelligence investigation.

In other words, the motion to dismiss makes obvious errors of fact and claims backed by no evidence (and refuted by the evidence present) pertaining to what FBI’s counterintelligence interests would be when the incoming National Security Advisor, seemingly freelancing, called up the country that just attacked us and undermined the official US policy.

One possible explanation for those errors and omissions is that the one career prosecutor Billy Barr put in place to conduct this review is perfectly suited to chasing down felons brandishing guns, but totally inappropriate to assess a counterintelligence investigation.

Judge Sullivan to Judge Gleeson: Pick Flynn’s Perjury

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Since at least last July, I’ve been warning that Sidney Powell’s serial efforts to use Judge Sullivan’s courtroom to rile up the Fox frothers might backfire. In January, I started pointing out that the claims Flynn had made to try to get out of his prosecution presented four materially conflicting sworn statements. Just this morning I pointed out that Sullivan has to figure out what to do with Flynn’s conflicting sworn statements, which are:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.” Flynn claims he forgot about the substance of his conversations with the Russian Ambassador, rather than lied about them.

Judge Sullivan just appointed an old mob prosecutor, John Gleeson, to do just that — as well as to represent the views that a competent government would represent if we had one.

Upon consideration of the entire record in this case, it is hereby

ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss, ECF No. 198, see, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016); Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008); it is further

ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.

I’m still sorting through the different legal consequences of doing this versus appointing Gleeson as a Special Master. Probably, Gleeson will only have access to the public record of the case, and not the Covington materials prosecutors were just about to unpack, to say nothing of evidence at DOJ proving or disproving that none of the materials submitted last week were new.

For now, though, understand that Powell has been laying these consequences for ten months.

Of over 40 Potential Unmaskings of Mike Flynn During the Transition, Just One Led to Criminal Charges

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Chuck Grassley and Ron Johnson have just posted what they seem to think is a list of people who may have unmasked Mike Flynn’s identity in the transcripts of his conversations on December 29 and 31 with Sergey Kislyak.

As a threshold matter, what it actually shows, is that over 40 recipients of intelligence may have unmasked Mike Flynn’s identity in a finished NSA intelligence product between the 2016 election and inauguration. If they did, they did it by the book, with NSA approval per the accompanying letter from Paul Nakasone. And even if they unmasked Flynn’s identity, the person who did so may not have read it.

The implication is that one of these unmaskings was the one (or were the ones) that led to the discovery that Mike Flynn had secretly called up the Russian Ambassador and undermined US foreign policy, acting without specific orders from Trump (at least as the public record currently stands).

Mind you, almost all of them could not be. Only 8 of them post-date the calls between Flynn and Kislyak:

  • US Ambassador to the UN Samantha Power (1/11/17)
  • DNI James Clapper (1/7/2017)
  • Secretary of the Treasury Jacob Lew (1/12/17)
  • White House Chief of Staff Denis McDonough (1/5/17)
  • DDNI Michael Dempsey (1/7/17)
  • PDDNI Stephanie O’Sullivan (1/7/17)
  • CIA/CTMC 1/10/17
  • Vice President Joe Biden 1/12/17

And of those, only the McDonough unmasking corresponds even remotely to the time the IC discovered Flynn’s call, except we know FBI had already discovered it on January 4. Which is to say zero of these unmaskings could be the original one. A few people could be someone reading a transcript from the calls after the fact.

Except that some of these — such as the January 11 unmasking — are believed to relate to Mohammed bin Zayed’s secret trip to the US to meet Flynn and Steve Bannon and Jared Kushner, and so are of another intercept.

There’s probably a very good reason why the original unmasking doesn’t show up on this list, which reflects only NSA products and only finished intelligence reports. According to Jim Comey’s testimony, the FBI found the Kislyak-Flynn calls, not the NSA.

And so the last couple days of December and the first couple days of January, all the Intelligence Community was trying to figure out, so what is going on here? Why is this — why have the Russians reacted the way they did, which confused us? And so we were all tasked to find out, do you have anything [redacted] that might reflect on this? That turned up these calls at the end of December, beginning of January. And then I briefed it to the Director of National Intelligence, and Director Clapper asked me for copies [redacted], which I shared with him.

That’s consistent with Mary McCord’s testimony, which made it clear no one had to refer this transcript to the FBI, because it was the FBI’s.

Also on page 2 of her notes, McCord noted mention of a “referral,” and noted that ultimately no referral was required, as the FBI maintained the information and would not refer a matter to themselves.

Plus, Jim Comey says this never became a finished intelligence product, even while he admitted that the FBI unmasked his identity.

We did not disseminate this [redacted] in any finished intelligence, although our people judged was appropriate, for reasons that I hope are obvious, to have Mr. Flynn’s name unmasked. We kept this very close hold, and it was shared just as I described.

So if this transcript was an FBI intercept that never made it into a finalized intelligence product, then it wouldn’t show up in a list of finalized NSA products.

All of which is to say this list — which Politico is running with as if it’s the Holy Grail — most likely has nothing to do with Flynn’s conversations with Sergey Kislyak, and shows that the Deep State picked up Mike Flynn during the transition in a good deal of reporting, with reports that more than 40 people had a glimpse at. But only one recording launched an investigation.

The Legal Posture of the Flynn Case: Emmet Sullivan Has Up to Six Pending Decisions, Not One

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Partly as a public service (the vast majority of people who are commenting on DOJ’s actions seem to be unfamiliar with the docket) and partly to set up a post I will do attempting to explain why Billy Barr did something as aggressive as he did last week, I wanted to lay out where all the moving pieces in Mike Flynn’s case stand.

Flynn blows up a probation sentencing with mixed claims about his prosecution

Prosecutors first started moving towards sentencing Flynn in June 2018; it’s clear the investigation was still ongoing but they asked to have Flynn’s presentencing report filed so they could move quickly after that. We now know that this was days after Flynn testified to the grand jury in the Turkish influence peddling case. There were reports Flynn was anxious to be sentenced so he could start earning a living again and in this time period, he registered to start influence peddling again, before his lawyers got him to claim that was just a mistake. On September 17, 2018, prosecutors said they were ready to move towards sentencing and asked for a date starting in November, after the midterms. The hearing ultimately got scheduled for December 18, 2018, after Jeff Sessions had been fired and Trump had announced he would nominate Bill Barr to be Attorney General (he didn’t actually send the nomination to the Senate until January 3, 2019, for reasons that likely have to do with Matt Whitaker’s Vacancy Reform Act status).

At that point, prosecutors recommended a sentence within guidelines and a downward departure, which is consistent with probation. Had Flynn left well enough alone, he would have gotten a year of probation and he’d be free and clear of the justice system by now.

He didn’t leave well enough alone. He got cute, claiming to accept guilt but at the same time floating the first of his complaints about being perjury trapped by mean old FBI agents. In response, not only did Judge Emmet Sullivan release the documents that revealed Flynn lies were worse than known, but he put Flynn under oath, both to reallocute his guilty plea, but also to swear that he didn’t think the circumstances of his interview made him any less guilty. After Sullivan made it clear that if he sentenced Flynn that day, he’d give him prison time, Flynn decided to wait until he was done cooperating after testifying at his partner Bijan Kian’s trial.

On February 14, 2019, the day Billy Barr was confirmed, Flynn sent a tweet suggesting “the eagle had landed” to Matt Gaetz, whose assaults on the Mueller investigation he had previously cheered in 2018.

After Barr was confirmed, Mueller quickly moved to write up his report, which was completed on March 22 and released on April 19, 2019. Mueller did not close his office, however, until May 29, when he gave a hasty press conference even as the final outstanding piece of evidence — Roger Stone aide, Andrew Miller’s testimony — came in.

When Mueller testified before Congress two months later on July 24, the most newsworthy thing he said was that FBI was still investigating the counterintelligence impact of Mike Flynn’s lies.

[Congressman Raja] KRISHNAMOORTHI: For example, you successfully charged former National Security Advisor Michael Flynn of lying to federal agents about this conversations with Russian officials, correct?

MUELLER: Correct.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

Flynn replaces Covington for Powell and Blows Up the Bijan Kian Trial

Exactly a week later, Flynn replaced his competent attorney, Rob Kelner, with Fox News firebreather, Sidney Powell, who moved immediately to collaborate with Bill Barr to undermine his prosecution.

In late June, Flynn started reneging on the testimony he provided in the Kian trial. As a result, the government tried to change their plan for the prosecution, attempting to admit Flynn’s prior testimony as a co-conspriator of unregistered foreign agents (who were charged under 18 USC 951, not just as lobbyists). Flynn intervened to fight that (not least, because it would completely doom any effort to avoid prison), blaming Kelner for making him submit a false FARA declaration even while submitting evidence actually showing that Flynn misled Kelner during the filing process. The move predictably helped Kian, as those events were key in Judge Anthony Trenga’s decision to throw out his conviction (which is currently being appealed, but which I expect DOJ to try to blow up in a further attempt to protect Flynn), but it also started a series of claims from Flynn that directly conflicted with his past sworn statements.

Sullivan, noting what was happening over in EDVA, asked the sides to weigh in, which is how Flynn’s team first started making claims in Sullivan’s court that the government, not Flynn, had reneged, all while submitting evidence showing the contrary.

Which is to say, even before Powell took a single action in the Flynn case, Flynn had created further exposure for himself.

As part of a Brady motion, Flynn moves to dismiss the prosecution

The first legal step Sidney Powell took was to submit a motion to compel Brady material. The first filing, on August 30, made no specific request (though did demand more classified information on behalf of Flynn, who of course had confessed to secretly working for a foreign government during the campaign). Powell also asked for more time. Days after submitting that, however, Powell and her colleagues demanded security clearances. On September 11, a more detailed motion was unsealed. That motion included a long list of demands, many based on wild conspiracy theories; the list largely tracked the one Powell had sent to Barr three months earlier, though she generally moderated her language and added a number of requests pertaining to the Turkish investigation that weren’t included in her Barr letter.

Many of these items are among those the government relied on in its motion to dismiss last week, proving the documents were in no way “new.”

Almost two weeks later, Flynn cleaned up some problems in the original request.

On October 1, prosecutors provided a timeline showing they had already produced everything they believed Flynn was entitled to. The same day, they responded to the Brady motion with a detailed response to each of Flynn’s demands, as well as two exhibits showing that this was part of a larger effort to undermine the Mueller investigation (which I addressed here).

On October 15, Flynn demanded evidence from Joseph Mifsud’s phone — which further established Sidney Powell didn’t care about whether her demands related to her client, but also that she had an open channel of communication with Bill Barr about his Durham investigation.

In Powell’s reply to the government, she included a new demand: that Judge Sullivan dismiss the case for misconduct based on precisely the claims made by DOJ last week.

As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

[snip]

The FBI had no factual or legal basis for a criminal investigation, nor did they have a valid basis for a counter-intelligence investigation against an American citizen, and they all knew it. 11 Exs. 5, 6. The evidence the defense requests will eviscerate any factual basis for the plea and reveal conduct so outrageous—if there is not enough already—to mandate dismissal of this prosecution for egregious government misconduct.

[snip]

In its relentless pursuit of Mr. Flynn, the government became the architect of an injustice so egregious it is “repugnant to the American criminal system.” Russell, 411 U.S. at 428 (citations omitted). For these reasons and those in our original Motion and Brief in Support, this Court should compel the government to produce the evidence the defense requests in its full, unredacted form. Given the clear and convincing evidence herein, this Court should issue an order to show cause why the prosecutors should not be held in contempt; and should dismiss the entire prosecution for outrageous government misconduct.

The government noted Powell’s new arguments and got permission to submit a surreply, in which they pointed out that Flynn was already in possession of the information he was using to argue for dismissal when he pled guilty the second time.

Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant. See Hearing Transcript at 8-10, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). The defendant further affirmed, under oath, that he wished to proceed to sentencing because he was guilty of making false statements to the FBI. See id. at 16.

[snip]

Nor did law enforcement officials engage in “outrageous” conduct during the criminal investigation and prosecution of the defendant. On January 24, 2017, when the defendant lied in his interview, the FBI was engaged in a legitimate and significant investigation into whether individuals associated with the campaign of then-candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election. The defendant was not “ambushed” at the interview, and the interviewing agents certainly did not engage in “outrageous” conduct that undermines the fact that he lied. Reply at 1, 7. The documents produced by the government in discovery show that the FBI asked the defendant for permission to conduct the interview, informed the defendant that the questions would concern his “contacts with the Russian Ambassador to the United States,” interviewed the defendant in his own office, and afforded him multiple opportunities to correct his false statements by revisiting key questions. See, e.g., Memorandum of Andrew McCabe dated January 24, 2017 (Doc. 56-1) (“McCabe Memo”); Strzok 302.

[snip]

For all of the above reasons, it is no surprise that with the same set of facts, the defendant and his prior counsel previously represented to this Court that the circumstances of the interview had no impact on his guilt, or guilty plea. On December 18, 2018, when the Court asked the defendant if he wished to “challenge the circumstances on which you were interviewed by the FBI,” he responded, under oath, “No, Your Honor.” 12/18/2018 Hearing Tr. at 8.10 The Court then asked the defendant if he understood that “by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed,” to which the defendant answered, “Yes, Your Honor.” Id. And when the Court queried whether the defendant wanted an opportunity to withdraw his plea because one of the interviewing agents had been investigated for misconduct, the defendant stated “I do not, Your Honor.” Id. at 9. His counsel likewise represented to the Court that their client was not “entrapped by the FBI,” and that they did not contend “any misconduct by a member of the FBI raises any degree of doubt that Mr. Flynn intentionally lied to the FBI.” Id. at 11-12.

In a sur-surreply, Powell tried to back off having demanded that Sullivan dismiss the case, saying that her past arguments and the government’s response aren’t her real motion to dismiss.

In conclusion, yes, the government engaged in conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct. See United States v. Russell, 411 U.S. 423, 428 (1973). However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an order compelling the government to produce the additional Brady evidence he has requested—in full and unredacted form—and an order to show cause why the government should not be held in contempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice. Mr. Flynn is entitled to discovery of the materials he has requested in these motions and briefs that will help him support such a motion.

In Emmet Sullivan’s meticulous 92-page order issued in December denying Flynn’s Brady request, however, he addressed the request for dismissal, specifically distinguishing this case from that of Ted Stevens.

Mr. Flynn’s requested relief is dismissal of this case. See Def.’s Reply, ECF No. 133 at 36; see also Def.’s Sur-Surreply, ECF No. 135 at 17. He seeks dismissal of the charges against him and the entire prosecution for government misconduct. E.g., Def.’s Reply, ECF No. 133 at 7, 23 n.15, 36; Def.’s SurSurreply, ECF No. 135 at 17. The government disagrees. See Gov’t’s Surreply, ECF No. 132 at 12-15. This case is not United States v. Theodore F. Stevens, Criminal Action No. 08–231(EGS), the case that Mr. Flynn relies on throughout his briefing. In that case, the Court granted the government’s motion to dismiss, and the government admitted that it had committed Brady violations and made misrepresentations to the Court. In re Special Proceedings, 825 F. Supp. 2d 203, 204 (D.D.C. 2011) (Sullivan, J.). Even if Mr. Flynn established a Brady violation in this case, dismissal would be unwarranted because “[t]he remedy for a Brady violation is retrial, not dismissal.” United States v. Borda, 941 F. Supp. 2d 16, 19 n.1 (D.D.C. 2013) (citing Pettiford, 627 F.3d at 1228). “[D]ismissal is appropriate only as a last resort, where no other remedy would cure prejudice against a defendant.” Pasha, 797 F.3d at 1139. [my emphasis]

As the government noted when they responded to Flynn’s request for dismissal, he already had all the evidence on which he premised that demand when he pled guilty a second time in December 2018.

In a sentencing memo, the government accounts for Flynn’s failed cooperation and refusal to admit guilt

In the wake of Sullivan’s order, the parties moved towards sentencing in January. The government got two continuances before submitting their revised motion, one in December and another in January, to get all required approvals for their sentencing memo. That means prosecutors on the case went to great lengths to approve their recommendation for prison time.

The factors enunciated in Section 3553(a) all favor the imposition of a sentence within the Guidelines range. The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

I’ll return to that memo, but the key point is that Judge Sullivan specifically gave Bill Barr’s DOJ time to ensure that the chain of command approved their supplemental sentencing memo.

Before Flynn responded to that revised recommendation, they asked for a continuance to allow them to withdraw Flynn’s guilty plea, specifically citing prosecutors’ recommendation for prison time.

Because Flynn submitted his supplemental sentencing memo after beginning the process to withdraw his guilty plea, they were stuck arguing in it both that Flynn should get credit for admitting guilty but also arguing that he was not guilty.

The government reply, submitted as Barr started the process to replace Jessie Liu, is the one that alerted everyone to the shenanigans that Barr was up to. Whereas the initial supplemental motion — which had been delayed twice to get approval — recommended prison time, this one reverted back to supporting probation, the position the government had adopted before Flynn had reneged on both his cooperation and his guilty.

Flynn blames his guilty pleas on his Covington lawyers

As noted, Flynn cited the recommendation for prison time in asking to withdraw his guilty plea(s). Flynn based his request to withdraw his guilty plea on a claim that his very competent Covington lawyers were both conflicted and incompetent. He then submitted what was originally called a supplement — which made no new arguments — which they subsequently corrected to note,

1 This is not Mr. Flynn’s “Supplemental Motion to Withdraw for Alternative Additional Reasons” currently due to be filed on January 22, 2020, for which we have requested two additional days to complete and file.

In response to a second request for more time on its filings, Judge Sullivan issued an order that reflects where he’ll likely go now: he raised the prospect of an evidentiary hearing to determine whether there is good cause to set aside his guilty plea.

Mr. Flynn’s supplemental motion and the government’s response shall address the following: (1) the standard in this Circuit for a defendant seeking to withdraw a guilty plea before sentencing; and (2) the need for an evidentiary hearing where the parties would present all testimony and evidence concerning the issue of whether Mr. Flynn can show that there is good cause to set aside his guilty pleas, see United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995), including testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, to show any “fair and just reason” for this Court to grant his motion to withdraw, Fed. R. Crim. P. 11(d).

From that moment forward, it became clear that Sullivan would put Flynn back under oath.

On February 9, prosecutors made things still worse, by asking Sullivan to waive Covington’s attorney-client privilege with respect to Flynn so they could assist prosecutors in rebutting his claims that they were incompetent. From that point forward, it became clear that not only Flynn, but his very credible former lawyers, would be testifying about the prosecution.

On January 29, just two days before Bill Barr would replace Jessie Liu with his flunky and around the same time he ordered Jeffrey Jensen to review the Flynn prosecution, Flynn submitted what he billed as his real supplemental motion to withdraw, doubling down on the claim that his former lawyers were responsible for his guilty pleas, he wasn’t.

As I noted at the time, the motions in conjunction created new risks for Flynn: in particular, his motion to withdraw included a sworn declaration that conflicted with three past sworn statements from him:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.” Flynn claims he forgot about the substance of his conversations with the Russian Ambassador, rather than lied about them.

To make things worse, as often happens with exhibits Sidney Powell introduces, the actual record undermined claims Flynn made. For example, Flynn included a document that showed Covington gave him more warnings about conflict than he admitted to in his declaration, thereby making it clear his sworn declaration didn’t match the record accompanying it.

Flynn repeats his claim he was railroaded

That same day Flynn submitted his most substantive motion to withdraw his guilty plea, January 29, he also submitted a motion to dismiss his prosecution. It was basically a repeat of the request made months earlier as part of the Brady request, pointing to irregularities in the Carter Page FISA application as the primary justification to make the motion anew.

On February 12, prosecutors responded to that motion pointing out there was nothing new here. Flynn’s response was repetitive and included a misleading timeline full of claims that contradict claims they’ve made elsewhere. The motion ignored that Flynn waived these complaints when he pled guilty the second time.

The government repeatedly claims that Mr. Flynn waived his right to constitutional protections when he pled guilty. ECF No. 169 at n.3. But, Mr. Flynn’s plea cannot stand, and the government cannot use it as both a shield for its misconduct and a sword to sentence Mr. Flynn. His plea was infected with constitutional error which rendered it neither knowing nor voluntary and in violation of Mr. Flynn’s Sixth Amendment rights. See ECF No. 162-2. As Mr. Flynn argued in his Motion to Withdraw Plea, ECF No. 151, even if it were a validly contracted plea, the government breached the contract the moment Mr. Van Grack filed the government’s supplemental sentencing memo which withdrew its motion for downward departure and its recommendation of probation. See ECF No. 150 at 3 (“In addition to asking the Court to credit the defendant with providing substantial assistance, the government recommended that the defendant receive credit for accepting responsibility. . . . [T]he government now withdraws both requests.”).

As prosecutors prepare their Covington argument, Bill Barr prepared his “new” information

As noted, on February 9, prosecutors took steps to be able to prove that Covington, in fact, gave Flynn exceptionally good advice. They asked for a series of delays while they did that. According to the schedule set by Judge Sullivan, prosecutors would have proposed a briefing schedule to lay all that out last Friday, possibly in a motion including some of the details from the 600 pages of evidence obtained from Covington that (the record already shows) would substantiate that Flynn gave them incorrect information for his FARA filing and repeatedly brushed off warnings about conflict.

During the delay, Covington did find 6,000 new records on top of the 600,000 documents they had already provided. Given the Bates numbers of documents filed last week, there’s no reason to believe those exhibits were included in these newly discovered documents.

As that was happening, prosecutor Jocelyn Ballantine handed over, drip-by-drip, the documents that Jeffrey Jensen “analyzed.”

Beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The review by USA EDMO has involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation (“FBI”) personnel associated with the investigation.

The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

None of this discovery correspondence said the documents were new to prosecutors, only that Jensen had reviewed them. They were, nevertheless, the documents that Timothy Shea claimed were “new” as his basis for flip-flopping on DOJ’s position on the case.

Emmet Sullivan has six decisions to make, not just one

Many, perhaps most, people who’ve commented in the last week have noted that Emmet Sullivan has the prerogative whether to accept DOJ’s motion or not. It’s true he has that authority. But he actually has up to six different decisions pending, as follows:

  1. Whether to accept or reject DOJ’s motion to dismiss
  2. If Sullivan accepts DOJ’s motion to dismiss, whether he does so with or without prejudice
  3. Whether to accept or reject Flynn’s motion to withdraw his pending withdraw of guilty plea, motion to dismiss, and waiver of privilege for Covington (to which DOJ has consented)
  4. Whether to hold an evidentiary hearing or ask for briefing on Flynn’s motion to withdraw
  5. Whether to accept or reject Flynn’s motion to dismiss his prosecution
  6. Whether and if so how to sentence Flynn based on fully briefed sentencing memoranda

Sullivan would not get to most of these without, first, deciding what to do about DOJ’s motion to dismiss. And if he rejected DOJ’s motion to dismiss, he would obviously reject Flynn’s motion to dismiss, just like he already rejected that argument. Though if Sullivan does reject DOJ’s motion to dismiss, sentencing is fully briefed and he could move immediately to sentencing.

Moreover, Flynn’s multiple conflicting sworn statements are before this court whether or not Sullivan rejects DOJ’s motion to dismiss. And he could reach that decision — or at least order briefing on the Covington evidence Flynn clearly wants to keep hidden — without (or before) weighing in on DOJ’s motion to dismiss.

Which is likely one of the reasons Sullivan is taking his time before he issues the next scheduling order.

Update: I should have put this quote on behalf of Chris Wray in several posts before this one. But basically, the FBI has already put it into the public record that the stuff DOJ claimed was “new” last week had already been reviewed by DOJ IG and John Durham’s inquiry.

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

Sidney Powell Argues that Judge Sullivan Can’t Appoint an Amicus at Same Time as Applauding the Time He Did Far More

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As noted, on Monday, a group of former Watergate prosecutors moved for permission to submit an amicus brief in the Mike Flynn case, noting that DC Circuit precedent permits a judge to appoint an amicus where there are questions about the facts cited to justify overturning a guilty verdict after acceptance. In response, Judge Emmet Sullivan issued an order basically saying there’d be time for amici to weigh in, but not yet.

In response, Flynn’s lawyers argue that Sullivan can’t accept that amicus brief. They says that because amici are allowed on the civil side they are expressly not permitted on the criminal side.

Under the canon of statutory construction expressio unius est exclusio alterius, the express mention of amicus briefs on the civil side must be understood to exclude them on the criminal side. See Adirondack Med. Ctr. v. Sebelius, 740 F.3d 692, 697 (D.C. Cir. 2014) (“the canon’s relevance and applicability must be assessed within the context of the entire statutory framework” (emphasis added), rather than in isolation or out of context).

They complain that Flynn’s prosecution has already taken three years.

Moreover, this travesty of justice has already consumed three or more years of an innocent man’s life—and that of his entire family. No further delay should be tolerated or any further expense caused to him and his defense. This Court should enter the order proposed by the government immediately.

Remember: Mueller’s prosecutors obliged Flynn’s request that he move to sentencing quickly in December 2018. Since that time, however, Flynn’s requests account for about 500 of the 512 days since, including the entire period since January 20 so Bill Barr could set up his bureaucratic pardon for Flynn.

But Flynn’s lawyers do make one non-hilarious argument. They note that at the beginning of his involvement in Flynn’s case, Judge Sullivan said that the rules of criminal procedure don’t permit intervention by third parties.

As set out in Exhibit A, this Court, on twenty-four specific occasions has rejected all prior attempts of other parties who have claimed an interest to intervene in this case in any way—as it should have. Exhibit A. Its December 20, 2017, Minute Order stands out. There this Court wrote:

MINUTE ORDER. This Court has received several motions to intervene/file an amicus brief along with letters in support from a private individual who is neither a party to this case nor counsel of record for any party. The Federal Rules of Criminal Procedure do not provide for intervention by third parties in criminal cases. The Court recognizes that the movant sincerely believes that he has information to share that bears on this case, and that, understandably, he wishes to be heard. Options exist for a private citizen to express his views about matters of public interest, but the Court’s docket is not an available option. The docket is the record of official proceedings related to criminal charges brought by the United States against an individual who has pled guilty to a criminal offense. For the benefit of the parties in this case and the public, the docket must be maintained in an orderly fashion and in accordance with court rules. The movant states that he disagrees with the similar Minute Order issued by Judge Berman Jackson in Criminal Case Number 17-201, but the contrary legal authority on which he relies is neither persuasive nor applicable. Therefore, the Clerk is directed not to docket additional filings submitted by the would-be intervenor. If the individual seeks relief from this Court’s rulings, he must appeal the rulings to the United States Court of Appeals for the District of Columbia Circuit. Signed by Judge Emmet G. Sullivan on 12/20/2017. (lcegs3) (Entered: 12/20/2017).

They quote him disagreeing with Judge Amy Berman Jackson’s treatment of amici, which is important, given that he cited her willingness to let Mike Cernovich intervene in Roger Stone’s challenge to his jury in his order regarding amici yesterday. They also include a list of requests by amici to intervene, which Sullivan refused.

Meanwhile, at almost the same time that this was posted, Sidney Powell posted a screed attacking Barack Obama’s comments on her client, which she has since deleted (Update: she has reposted it with some changes). She accused Obama of erring when he said Flynn had committed perjury (Flynn has given multiple sworn statements that materially conflict, but he has not been charged for them; he was charged with false statements). She may be right on the technicality, but it’s an odd thing to complain about since the key reason she has offered for challenging Flynn’s guilty plea is that he was caught in a “perjury” trap.

More interesting still, considering her response to the Watergate prosecutor motion, is this claim.

On the same day Sidney Powell reminded Sullivan that he has denied amicus after amicus, she also applauded Sullivan for appointing Henry Schuelke to investigate the circumstances of the Ted Stevens prosecution. As she notes, the resulting report led Sullivan to adopt a policy whereby any defendant in his court, even one pleading guilty, gets access to Brady material.

What she doesn’t note is that Emmet Sullivan already ruled in this case that the stuff Flynn was asking for was not Brady material, and thus far there’s no reason to believe the exhibits accompanying DOJ’s latest motion — one of which reflected facts known to Flynn when he pled guilty a second time, and the other of which was deliberative — are Brady (and DOJ did not make that claim, either).

Still, on the day she filed a motion telling Emmet Sullivan he has no authority to approve of amici, she posted something (then deleted it) making it clear she believes Sullivan can go much further and appoint an outside investigator to investigate irregularities in a prosecution.

Deleting the post isn’t going to help her, though. She’s already hailed that prior instance when Sullivan appointed outside investigators when faced with prosecutors who had failed to heed the authority of his court, in this docket.

This “heads we win, tails we win” perspective infected and corrupted the prosecution of United States Senator Ted Stevens, four Merrill Lynch executives, and untold others across the country. See, e.g., Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order dated April 7, 2009 (“Schuelke Report”), In re Special Proceedings, No. 09-mc00198-EGS, (D.D.C. Nov. 14, 2011);

[snip]

It is well documented that systematic, intentional misconduct has been pervasive in the Department of Justice. See Schuelke Report

[snip]

13 “DOJ assigned a new team of prosecutors after District Judge Emmet G. Sullivan held William Welch, the Chief of the Public Integrity Section, Brenda Morris, his Principal Deputy Chief, and another senior DOJ attorney, in contempt on February 13, 2009, for failing to comply with the Court’s order to provide certain information to Senator Stevens’s attorneys, Williams & Connolly, and to the Court regarding a complaint filed by FBI Agent Chad Joy in December 2008 which “raised serious allegations of prosecutorial and governmental misconduct in the investigation and trial of Senator Stevens.” Stevens, Mem. Op., Oct. 12, 2010, at 2 (Dkt. No. 421); see also id., Mem. Op. & Order, Dec. 19, 2008 (Dkt. No. 255); id., Order, Dec. 22, 2008 (Dkt. No. 256); id., Order, Jan. 14, 2009 (Dkt. No. 261); id., Op. & Order, Jan. 21, 2009 (Dkt. No. 274); Schuelke Report at 32.

The issue here is different: prosecutors before his court — the political appointee, Timothy Shea, by himself — has moved to overturn several decisions Sullivan has already entered, making unsubstantiated claims about “new” information.

But Powell bought off on the principle way back in August. So deleting a post that materially conflicts what she is telling Sullivan as an officer of the court will not change that she has already said the same thing, directly to him, as an officer of the court.

Emmet Sullivan Tells Potential Amici Not to Bug Him Yet

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We’ve been waiting for Emmet Sullivan’s response to the government’s motion to withdraw the Mike Flynn prosecution. Flynn filed to say they’d put all their other requests on ice in light of the government’s motion. Then today, they said — nudge nudge — they’d be happy with the government’s request.

Yesterday, Timothy Shea sort of cleaned up his mess with using Jesse Liu’s bar number to submit something utterly conflicting with what has previously been submitted under Liu’s bar number.

That revealed there’s a gap in the docket — someone did something under seal.

Finally, Sullivan just issued this order:

MINUTE ORDER as to MICHAEL T. FLYNN. Given the current posture of this case, the Court anticipates that individuals and organizations will seek leave of the Court to file amicus curiae briefs pursuant to Local Civil Rule 7(o). There is no analogous rule in the Local Criminal Rules, but “[the Local Civil] Rules govern all proceedings in the United States District Court for the District of Columbia.” LCvR 1.1. “An amicus curiae, defined as friend of the court,… does not represent the parties but participates only for the benefit of the Court.” United States v. Microsoft Corp., No. 98-cv-1232(CKK), 2002 WL 319366, at *2 (D.D.C. Feb. 28, 2002) (internal quotation marks omitted). Thus, “[i]t is solely within the court’s discretion to determine the fact, extent, and manner of the participation.” Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (citation and internal quotation marks omitted). “‘An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.'” Id. at 137 (quoting Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1064 (7th Cir. 1997)); see also LCvR 7(o). Although there is no corollary in the Local Criminal Rules to Local Civil Rule 7(o), a person or entity may seek leave of the Court to file an amicus curiae brief in a criminal case. See Min. Order, United States v. Simmons, No. 18-cr-344 (EGS) (D.D.C. May 5, 2020); cf. United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016) (appointing amicus curiae in a criminal case). As Judge Amy Berman Jackson has observed, “while there may be individuals with an interest in this matter, a criminal proceeding is not a free for all.” Min. Order, United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C. Feb. 28, 2019). Accordingly, at the appropriate time, the Court will enter a Scheduling Order governing the submission of any amicus curiae briefs. Signed by Judge Emmet G. Sullivan on 5/12/2020. (lcegs3) (Entered: 05/12/2020)

My guess is that someone submitted a sealed motion to file an amicus brief (as happened in the Stone case already, when some right wingers intervened on the jury challenge), and that this order is intended to lay out the basis under which Sullivan might entertain an amicus:

  • When a party is not represented competently or represented at all (as the government is not)
  • When an amicus has an interest in some other case that may be affected by this one
  • When an amicus has a unique perspective the lawyers in the case cannot offer

The other thing this means is that this is not done yet, and Sullivan is definitely not going to just dismiss this case.

Update: The potential amici are a group that Flynn’s lawyers call the Watergate Prosecutors. Their argument against intervention is bad, but not as bad as their normal work.

Update: Here’s the brief the Watergate Prosecutors submitted. They emphasize that once a guilty plea has been entered courts must be certain there is a basis in fact for overturning the verdict.

But the D.C. Circuit has explained, in a decision that the Government fails to cite, that “considerations[] other than protection of [the] defendant . . . have been taken into account by courts” when evaluating consented-to dismissal motions under Rule 48(a). United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). Courts have exercised their authority under Rule 48(a) where “it appears that the assigned reason for the dismissal has no basis in fact.” Id. at 620– 21. Even when the Government represents that the evidence is not sufficient to warrant prosecution, courts have sought to “satisf[y]” themselves that there has been “a considered judgment” and “an application [for dismissal] made in good faith.” Id. at 620.

[snip]

No party before the Court will address the question whether the Government’s proffered reasons for dismissal have a “basis in fact,” Ammidown, 497 F.2d at 621, or other reasons that may lead the Court to conclude that it should not grant the Motion. The Watergate Prosecutors, for reasons set forth in the accompanying Statement of Interest, are uniquely suited to help ensure a fair presentation of the issues raised by the Government’s Motion, which include, without limitation, the accuracy of the facts and law presented in the Motion, the significance of the Defendant’s prior admissions of guilt and this Court’s orders to date, the Trump administration’s opposition to the prosecution of the Defendant, and whether the Government’s change of position reflects improper political influence undermining determinations made by the Special Counsel’s Office.

Meanwhile, CBS has released the full interview with Billy Barr, which makes it clear the only “new” facts he claims to be relying on are not: the FBI correspondence showing they almost closed but then reopened the case against Flynn (something that has been public since before the House Intelligence Committee Report came out), and the Bill Priestap notes showing deliberations on how to interview Flynn, which would have been reviewed in any of the four investigations of those meetings.

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