2016 Presidential Election Archives - Page 63 of 179

Judge Sullivan Has Already Rejected Most of Timothy Shea’s DOJ Flynn Pardon

In this post, I laid out how Acting DC US Attorney Timothy Shea claimed DOJ had “newly” acquired a bunch of information which led it to decide to ask Judge Emmet Sullivan to dismiss Mike Flynn’s prosecution.

Except none of the information was new.

The table below shows what is known about the documents Shea relied on yesterday, using the exhibit numbers from DOJ’s filing. Some were already public, another had been provided to Flynn, others were probably reviewed in investigations of the circumstances of Flynn’s interviews (as explained below). It’s hard to square Shea’s claim that some of this was newly declassified, as most things that had once been classified had already been declassified publicly (and DOJ reclassified two lines from an Andrew McCabe memo, while declassifying a few more lines of it). Other documents were generated as part of this investigation, and so could in no way be deemed “new” to the prosecutors who generated them (nor to Rod Rosenstein, who approved Flynn’s prosecution). As for the rest, Flynn asked for them last year as part of a Brady motion, and Sullivan rejected those requests in a meticulous 92-page opinion written in December.

Effectively, then, Bill Barr appointed Jeffrey Jensen to “review” Flynn’s prosecution for one purpose: to override Judge Sullivan’s Brady decision last December.

As I keep repeating, it’s never a good idea to predict what Judge Sullivan will do. I expect he’ll review these exhibits closely and see whether they change his mind about DOJ’s representations that none of them were helpful to Flynn. He might find the Bill Priestap notes troubling, but that document is not only deliberative (and therefore always excluded from Brady), but it states clearly that, “our goal is to determine if Mike Flynn is going to tell the truth about his relationship w/Russians,” a goal Sullivan has already deemed proper.

It’s possible, however, that Sullivan will view these documents and recognize that they don’t change the order he already issued, finding Flynn’s lies material and his prior guilty pleas still valid. If he does, he may well be peeved that DOJ tried to overturn a judge’s ruling by bureaucratic fiat.

DOJ may not have had two FBI documents

There are just two documents that DOJ probably wouldn’t have already had or reviewed. One is a draft memo closing the investigation into Flynn. The other is the Jim Comey transcript briefing the House Intelligence Committee on the Flynn investigation. Because the former was an FBI document, it’s not clear it would ever have made it into DOJ files. And it dates to earlier than the Brady requests Flynn made last year. That said, the fact that FBI had decided to close out the investigation up until they discovered Flynn’s calls with Sergey Kislyak was public before Flynn pled guilty a second time, when he swore that he had no concerns about Brady. And the circumstances surrounding the non-closure of this investigation made it into 302s otherwise accounted for.

As to the Comey transcript, DOJ said it did not have an unredacted copy of this last year. But like the draft closure, the facts in it have long been public, most notably in the House Intelligence Report on their Russian investigation, which was done nine months before Flynn pled guilty again.

DOJ reviewed Page-Strzok texts and the meetings before and after Flynn’s interview

One of the things DOJ submitted as “new” information yesterday were Page-Strzok texts. We already know that DOJ IG reviewed every one of those, some of them multiple times, particularly if they pertained to Flynn or other Trump people.

As noted, documents pertaining to meetings before and after Flynn’s interview would likely have been reviewed by DOJ already, because DOJ repeatedly chased down allegations made about those meetings. Flynn already got an FBI Inspection Division 302 reflecting Peter Strzok being interviewed about some of these allegations and a Mueller 302 reflecting Lisa Page being interviewed about other ones. The government repeatedly looked into allegations that Andrew McCabe said, “First we fuck Flynn, then we fuck Trump,” at the meeting preparing for the Flynn interview (which is presumably what these notes record).

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, 4 who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time.

In fact, Bill Priestap’s notes of what appear to be the McCabe meeting show no such claim. He does reflect them talking about how to deal with Flynn’s comments. But they record no reference to Trump.

Emmet Sullivan reviewed two of these 302s

Of particular note, Emmet Sullivan already reviewed several of these documents. In his Brady opinion from December, he described an in camera review he did in December 2018, in part to make sure the summaries of the Mary McCord and Sally Yates 302s was adequate disclosure.

As to Requests a through f and Request i, the government has provided Mr. Flynn with: (a) “information from interviews with [Mr.] McCabe that could reasonably be construed as favorable and material to sentencing”; (b) “information that could reasonably be construed as favorable and material to sentencing about such pre-interview discussions, including the language quoted in the request”; (c) “information about such post-interview debriefings that could reasonably be construed as favorable and material to sentencing”; (d) “information from former [Principal] Associate Deputy Attorney General Matthew Axelrod’s interview report that could reasonably be construed as favorable and material to sentencing”; (e) “information from [Ms.] McCord’s interview report that could reasonably be construed as favorable and material to sentencing, including the information quoted in the request”; (f) “information from [Ms.] Yates’ interview report that could reasonably be construed as favorable and material to sentencing, including the information quoted in the request”;

[snip]

Based on an in camera review of the government’s sealed submissions to the Court on December 14, 2018, see, e.g., Min. Order of Dec. 17, 2018; Gov’t’s Opp’n, ECF No. 122 at 16 n.8; Gov’t’s Notice of Disc. Correspondence, ECF No. 123 at 3, the Court agrees with the government that the requested information in Requests a through f and Request i has already been provided to Mr. Flynn in the form of appropriate summaries, see Gov’t’s App. A, ECF No. 122-1 at 6-7.

Given that Sullivan accounted for these documents, his materiality analysis is unlikely to change

As noted, Sullivan might decide that some of these documents should have been provided under Brady, in spite of his ruling on them. But unless he does, it’s unlikely his view on the materiality of Flynn’s lies will change, contrary to the footnote in Shea’s memo yesterday.

7 The Government appreciates that the Court previously deemed Mr. Flynn’s statements sufficiently “material” to the investigation. United States v. Flynn, 411 F. Supp. 3d 15, 41-42 (D.D.C. 2019). It did so, however, based on the Government’s prior understanding of the nature of the investigation, before new disclosures crystallized the lack of a legitimate investigative basis for the interview of Mr. Flynn, and in the context of a decision on multiple defense Brady motions independent of the Government’s assessment of its burden of proof beyond a reasonable doubt.

That’s because Sullivan knew when he wrote his opinion that FBI had almost closed the investigation of Flynn but reopened it after learning of Flynn’s comments to Kislyak. There’s nothing about this discussion that would change given what was disclosed yesterday.

Mr. Flynn argues that his false statements to the FBI were not “material” for two reasons. See Def.’s Reply, ECF No. 133 at 31-32. First, Mr. Flynn contends that his conversations with the Russian Ambassador were unrelated to the FBI’s investigation into Russia’s efforts to interfere in the 2016 presidential election because the interviewing FBI agents did not ask him a single question about election interference or any coordination between Russia and the Trump campaign. See id. Next, Mr. Flynn argues that the FBI had recordings and transcripts of his conversations with the Russian Ambassador, arguing that the FBI “knew exactly what was said” and “nothing impeded [the FBI’s] purported investigation.” Def.’s Sur-Surreply, ECF No. 135 at 12. The government responds that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s “counterintelligence 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.” Gov’t’s Surreply, ECF No. 132 at 10.

[snip]

Mr. Flynn has a fundamental misunderstanding of the law of materiality under 18 U.S.C. § 1001(a)(2), which requires a false statement to be “material.” United States v. Stone, 394 F. Supp. 3d 1, 12 (D.D.C. 2019) (materiality is a necessary element to establish a violation of the false statements statute). The Supreme Court has instructed that “[t]he statement must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.’” United States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); accord United States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979) (“Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects.”). But “a statement need not actually influence an agency in order to be material.” Moore, 612 F.3d at 701.

As a matter of law, the government need not prove that Mr. Flynn’s false statements impeded the FBI’s investigation in order to establish the materiality element. See id. at 702 (holding that defendant’s false statement “was capable of affecting the Postal Service’s general function of tracking packages and identifying the recipients of packages entrusted to it” and defendant’s false information “could have impeded the ability of the Postal Service to investigate the trafficking of narcotics through the mails”). And Mr. Flynn’s multiple false statements were material regardless of the interviewing FBI agents’ knowledge of any recordings and transcripts of his conversations with the Russian Ambassador—the existence or nonexistence of which have neither been confirmed nor denied by the government, see Gov’t’s App. A, ECF No. 122-1 at 5—and whether the FBI had knowledge of Mr. Flynn’s exact words during those conversations. See United States v. Safavian, 649 F.3d 688, 691 (D.C. Cir. 2011) (rejecting defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them”).

Mr. Flynn’s other argument—that his false statements about his conversations with the Russian Ambassador were not related to the investigation into Russia’s efforts to interfere in the election—is unavailing. “Application of § 1001 does not require judges to function as amateur sleuths, inquiring whether information specifically requested and unquestionably relevant to the department’s or agency’s charge would really be enough to alert a reasonably clever investigator that wrongdoing was afoot.” United States v. Hansen, 772 F.2d 940, 950 (D.C. Cir. 1985). Here, Mr. Flynn’s false statements to the FBI about his conversations with the Russian Ambassador were relevant to the FBI’s inquiry. See SOF at 1 ¶ 1. It is undisputed that the FBI had already opened the investigation to, among other things, investigate the “nature of any links between individuals associated with the [Trump] Campaign and Russia” at the time of Mr. Flynn’s January 24, 2017 interview. Id. A “lie distorting an investigation already in progress” could impact the FBI’s decision to act and follow leads. Hansen, 772 F.2d at 949; accord United States v. Stadd, 636 F.3d 630, 639 (D.C. Cir. 2011) (defendant’s false statements were material because the truth “would have raised red flags that would have led [the agency’s ethics advisor] to inquire further”). As Judge Amy Berman Jackson has noted, “it is axiomatic that the FBI is not precluded from following leads and, if warranted, opening a new investigation based on those leads when they uncover information in the course of a different investigation.” Kelley v. FBI, 67 F. Supp. 3d 240, 287 n.35 (D.D.C. 2014). The Court therefore finds that Mr. Flynn’s false statements were material within the meaning of 18 U.S.C. § 1001(a)(2).

It’s hard to look at the extensive record of the discussion about whether Flynn had lied submitted yesterday and not conclude that they presented DOJ with some real conflict about the investigation. Moreover, Comey’s comments, which preceded a number of investigative steps (like obtaining Flynn’s call records and interviews with KT McFarland and others), show that the investigation changed as it developed more proof that Flynn had knowingly lied.

When Flynn tried to get this information, Sullivan reminded him he had already sworn it didn’t matter

Finally, Shea’s silence about Flynn’s plea allocution before Sullivan is particularly damning given that Sullivan addressed it in his Brady motion in December. He pointed out that Flynn had already sworn, under oath, that he was not challenging the circumstances of his interview.

Six days later, on December 7, 2017, the case was randomly reassigned to this Court, which scheduled a sentencing hearing for December 18, 2018. During that hearing, the Court conducted an extension of the plea colloquy in view of statements made in Mr. Flynn’s sentencing memorandum that raised questions as to whether Mr. Flynn sought to challenge the circumstances of his FBI interview. In response to the Court’s questions, Mr. Flynn maintained his plea of guilty upon the advice of counsel. Mr. Flynn neither challenged the conditions of his FBI interview nor expressed any concerns with the government’s obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and this Court’s Standing Brady Order of February 16, 2018.

[snip]

Finally, the Court summarily disposes of Mr. Flynn’s arguments that the FBI conducted an ambush interview for the purpose of trapping him into making false statements and that the government pressured him to enter a guilty plea. The record proves otherwise. See, e.g., Def.’s Br., ECF No. 109 at 4 (arguing that the government was “putting excruciating pressure on [Mr. Flynn] to enter his guilty plea”); Def.’s Reply, ECF No. 133 at 5 (arguing that “high-ranking FBI officials orchestrated an ambush-interview . . . for the purpose of trapping him into making false statements they could allege as false”); id. at 6 (asserting that the FBI and others “plot[tted] to set up an innocent man and create a crime”); id. at 18 (contending that “[t]he FBI had no factual or legal basis for a criminal investigation” and that the FBI’s investigation was a “pretext for investigating Mr. Flynn”); id. at 27 (arguing that “Mr. Flynn was honest with the [FBI] agents to the best of his recollection at the time, and the [FBI] agents knew it”).

The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI. E.g., Sentencing Hr’g Tr., ECF No. 103 at 11 (affirming it was not his “contention that Mr. Flynn was entrapped by the FBI”); id. (affirming that “Mr. Flynn’s rights were [not] violated by the fact that he did not have a lawyer present for the interview”); Plea Agreement, ECF No. 3 at 10 (“I fully understand this [Plea] Agreement and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound.”); Plea Hr’g Tr., ECF No. 16 at 29 (affirming that no one “forced, threatened, or coerced [Mr. Flynn] in any way into entering this plea of guilty”). And it is undisputed that Mr. Flynn not only made those false statements to the FBI agents, but he also made the same false statements to the Vice President and senior White House officials, who, in turn, repeated Mr. Flynn’s false statements to the American people on national television. See Gov’t’s Surreply, ECF No. 132 at 8.

Just six months ago, Emmet Sullivan examined the substance of the arguments that DOJ claims are new. He not only found that they did not affect Flynn’s guilty plea, but he reminded Flynn that Flynn already stated, under oath, that none of the things DOJ raised yesterday change that he was guilty of lying to the FBI.

Exhibits

August 16, 2016: Opening Executive Communication for Flynn investigation (Exhibit 2)

The FBI opened a full investigation into Mike Flynn to figure out whether he was wittingly or unwittingly being run by the FBI that might constitute a federal crime or pose a threat to national security. It listed FARA and 18 USC 951 as the crimes under investigation. This document was created as part of this prosecution. Flynn asked for this last year.

January 4, 2017: Draft Closing Communication closing investigation into Mike Flynn (Exhibit 1)

This reviews the investigative steps taken against Flynn, noting that the investigative team did not presume Flynn was an Agent of a Foreign Power, which limited the investigative steps significantly. Based on those steps, however, the FBI was closing the investigation. Timothy Shea does not contest that this was never finalized.

January 4, 2017: Emails between Jim Baker, Lisa Page, and Peter Strzok about the Logan Act (Exhibit 8)

These emails show FBI was discussing the Logan Act in the wake of discovering the Flynn interview. They don’t show that that was the only thing they discussed (and the public record makes clear it was not the only thing discussed). This discussion is reflected in 302s generated by the Mueller investigation. These documents would be included in the requests Flynn made last year.

January 4 through February 10, 2017: Texts involving Peter Strzok (Exhibit 7)

These texts include ones between Peter Strzok and the agents in charge of the Flynn investigation, asking them not to close it out. It includes texts between Strzok and Page about whether or not the investigation was closed out, and showing that Page had edited the 302. The Page-Strzok texts, by definition, were reviewed by DOJ IG. But the ones pertaining to the edit were actually less interesting than some previously released ones. Other texts were likely reviewed as part of the three investigations into the circumstances of Flynn’s interview. Flynn asked for these last year.

January 21 through 23, 2017: Emails involving Peter Strzok, Lisa Page, and others (Exhibit 9)

These emails capture the discussions about what to do about Flynn in the days before his interview, including brainstorming how they would respond to questions he might ask and whether they’d give him a False Statements admonishment. These emails were likely reviewed as part of the multiple reviews of the circumstances of Flynn’s interview. Flynn asked for these last year.

January 24, 2017: Bill Priestap notes on goals for the Mike Flynn interview (Exhibit 10)

These notes reflect a discussion about what investigative goals FBI had for the Flynn interview. Given that they seem to record Andrew McCabe’s statements, they were almost certainly reviewed in the multiple reviews of this meeting. Flynn asked for these last year, alleging they recorded Andrew McCabe saying “First we fuck Flynn, then we fuck Trump.”

January 24, 2017: A version of notes Andy McCabe took when he called up Flynn about an interview (Exhibit 11)

This was first shared with Judge Sullivan in unredacted form when he took Flynn’s plea in December 2018. This version is, in some respects, more classified than a version released last May. For example, last May DOJ revealed that McCabe agreed with Flynn that leaks were a problem.

Today’s version redacts that line as classified.

Obviously, Flynn has had this document since before he pled guilty the second time, and swore under oath that it did not change his guilty plea.

January 24, 2017: FBI Agents’ notes (Exhibit 12)

These were made public in Flynn exhibits in October (actual Pientka, actual Strzok). Sullivan conducted extensive analysis of these notes last year, demonstrating that, contrary to Sidney Powell’s claims, the false statements recorded in every version of Flynn’s 302s are consistent with the notes.

February 14, 2017: 302 from January 24, 2017 interview with Mike Flynn (Exhibit 6)

Flynn has had this since before he pled guilty. It is actually a more redacted version than the most recent one released in the BuzzFeed FOIA. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making.

March 2, 2017: House Intelligence Committee interview with Jim Comey (Exhibit 5)

This interview provides one version of how Comey decided to send FBI Agents to interview Flynn. It also includes a line — which has been egregiously misrepresented — describing how that FBI Agents thought Flynn was a credible liar. The Comey interview came before some other investigative steps would have made even more clear that Flynn had knowingly lied to the FBI. While this transcript had never been made public, the substance of it has long been public, including in the House Intelligence Committee Report on Russia.

July 17, 2017: 302 of FBI interview with Mary McCord (Exhibit 3)

This describes the FBI going through her notes with Mary McCord, who was Acting National Security Division head during the transition and beginning of the Trump Administration. The interview includes damning information making it clear that the Trump Administration tried to quash this investigation. It makes clear that the FBI interviewed Flynn to assess whether he was working for Russia as a clandestine Foreign Agent. In fact, Flynn asked for it because of what it said about him being a Foreign Agent, and on that basis, Sullivan judged it to be irrelevant to his plea for False Statements, and judged that a summary Flynn received before he pled guilty a second time was sufficient. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making.

July 19, 2017: 302 of FBI interview with Peter Strzok (Exhibit 13)

The FBI interviewed Strzok to understand how DOJ and FBI dealt with the Flynn prosecution. It was originally shared with Judge Sullivan in unredacted form at the 2018 sentencing and has been released in this form since then, twice. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making. Flynn had it before pleading guilty the second time, and swore under oath it did not affect his guilty plea.

August 15: 302 for FBI interview with Sally Yates (Exhibit 4)

This interview describes Yates’ understanding of how the investigation into Flynn started. While she describes the conflict between FBI and DOJ, she also makes it clear that she never questioned the seriousness of what Flynn had done. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making. Flynn got a summary of this before he pled guilty the second time, a summary that Sullivan said was sufficient. But he asked for it again last year.

To Justify Dismissing Mike Flynn’s Prosecution, Timothy Shea Claims Information DOJ Has Always Had Is “New”

May 7, 2020/44 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

As noted earlier, the government has officially asked Judge Emmet Sullivan to drop the prosecution against Mike Flynn. Sullivan is not required to do so, particularly not after Flynn pled guilty twice and given that Sullivan has fully briefed sentencing memoranda before him.

This post will try to lay out the shoddiness of the argument they make to support that move. In a follow-up, I will show how Judge Sullivan already dismissed much of this argument. Finally, I will show that some of what DOJ relies on to claim they’ve discovered “new” information is actually utterly damning to the Trump White House, making it fairly clear Trump endorsed what Flynn had done.

As I always say, it is a fool’s errand to predict what Sullivan might do. But this argument is not one that I imagine will impress Sullivan, particularly given the past events in this prosecution.

Note that just Acting US Attorney Timothy Shea signed this filing, which may create a similar kind of dynamic at the DC US Attorney’s Office regarding this action as Barr’s interference in the Roger Stone sentencing did. Barr transparently removed the Senate approved US Attorney for DC, installed his flunky, and then had his flunky renege on statements that DOJ (even DOJ under Barr) had made in the past. It is a breathtaking abuse of power, and it’s likely that Sullivan will regard it as such.

Shea makes three arguments:

DOJ discovered new material that changed their understanding of the investigation
That material has led them to believe (they claim) that Flynn’s lies weren’t material to any investigation
Therefore they can’t prove to a non-existent jury that the lies were material, which they don’t have to do because Flynn has twice pled guilty, which Shea glosses over ineffectively

Shea claims there’s new material but points to none

As noted, Shea repeatedly justifies this move by claiming there is “newly discovered” material.

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.” Ex. 1 at 4, FBI FD-1057 “Closing Communication” Jan. 4, 2017 (emphases added)

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

[snip]

Based on an extensive review of this investigation, including newly discovered and disclosed information attached to the defendant’s supplemental pleadings, see ECF Nos. 181, 188-190, the Government has concluded that continued prosecution of Mr. Flynn would not serve the interests of justice.

Except Shea never actually describes what is “new.”

He cites a bunch of exhibits, many of which have already been entered into this case. Zero of the documents he cites were new to DOJ, at all. Indeed, prosecutors dealt with almost all of the documents in their response to Sidney Powell’s Brady demand, at a time when Bill Barr was already Attorney General, so even Judge Sullivan already knew of them, and Bill Barr’s DOJ already accounted for most of them in this prosecution.

Moreover, Shea simply cites to them as exhibits. He doesn’t describe how DOJ purportedly discovered them. He doesn’t claim that Rod Rosenstein, who authorized this prosecution, didn’t know of the documents when he authorized this prosecution. He doesn’t explain why previously classified documents — which were always accessible to prosecutors and Rosenstein — count as new.

While he cites to prosecutors’ past mention of US Attorney Jeffrey Jensen’s review of the case, which is where these documents that were always known came to take on new relevance, he doesn’t mention it specifically, and he sure as hell doesn’t explain how it came to be that Jensen was appointed to review the case.

All of which is to say that the entire premise of this filing — that there is information that is new to DOJ (as opposed to newly in Flynn’s possession) — has no basis in fact and is demonstrably false with respect to a number of things Shea points to.

Shea misrepresents the status of the investigation to claim Flynn’s lies were not material to it

Shea then claims these new documents which are not new newly convinced DOJ that Flynn’s lies were not material to any investigation.

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]

Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

6 The statements by Mr. Flynn also were not material to the umbrella investigation of Crossfire Hurricane, which focused on the Trump campaign and its possible coordination with Russian officials to interfere with the 2016 presidential election back prior to November 2016. See Ex. 1 at 3; Ex. 2 at 1-2. Mr. Flynn had never been identified by that investigation and had been deemed “no longer” a viable candidate for it. Most importantly, his interview had nothing to do with this subject matter and nothing in FBI materials suggest any relationship between the interview and the umbrella investigation. Rather, throughout the period before the interview, the FBI consistently justified the interview of Flynn based on its no longer justifiably predicated counterintelligence investigation of him alone.

Even ignoring how Shea pretends the 2020 Trump DOJ needs to be “persuaded” by the 2017 Trump DOJ, the argument here involves misrepresenting the record.

On August 16, 2016, the FBI opened an investigation into Flynn. The goal of that investigation was to figure out whether Flynn was being controlled by Russia; 18 USC 951 was one of the crimes for which Flynn was being investigated.

The goal of the investigation is to determine whether the captioned subject, associated with the Trump Team, is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national securit y and/or possibly a violation of the Foreign Agents Registration Act, 18 U.S.C section 951 et seq, or other related statutes.

Nothing about the predication of the investigation into Flynn was limited to election tampering. It was an investigation into whether Flynn was acting on Russia’s behalf, period. On January 4, 2017, FBI drafted a memo closing the Crossfire Hurricane investigation into Flynn. That they did so is proof they didn’t have it in for Flynn. They had investigated the reasons they had suspected him, not corroborated it, and decided to close the investigation.

But on those same days, in response to a request from Obama for insight into why the Russians hadn’t responded more aggressively to the sanctions, FBI discovered the Flynn call with Sergey Kislyak. When they discovered that new information, Peter Strzok asked the case agent to keep the case open, for now, until they could figure out what to do.

There was a lot of debate between FBI and DOJ over the following weeks about what to do, whether to inform Trump or not. Once Mike Pence made representations about what Flynn had done, however, it raised the stakes, because it meant that Flynn had lied internally, which also meant that Flynn was more of a counterintelligence concern. Ultimately, Comey said that because the FBI already had an investigation open, DOJ could not intervene.

And then the DNI and the Director of Central Intelligence Agency, so Mr. Clapper and Mr. Brennan, both approached me on the 19th, the last evening of the Obama administration, and asked me whether I was going to tell them about what I knew about Mr. Flynn before they took office, and I said that I was not, given our investigative equities, and the conversation ended there.

I’m perfectly sympathetic to a debate about Jim Comey being an asshole, but it is in fact the case that there was an ongoing investigation, and it is also in fact the case that even when Sally Yates informed Don McGahn about it, she herself refused to tell him about the status of the ongoing investigation.

In a description of the debrief after the interview, Bill Priestap made clear that they did this interview to find out whether Flynn was acting as an agent for Russia.

The FBI’s provided rationale for doing the interview was that the existence of the investigation had already leaked, so Flynn was already aware that the information was being discussed publicly and there was no element of surprise. Priestap told the group the goal of the interview was whether to determine whether or not Flynn was in a clandestine relationship with the Russians.

That’s what Comey said, too.

MR. COMEY: To find out whether there was something we were missing about his relationship with the Russians and whether he would — because we had this disconnect publicly between what the Vice President was saying and what we knew. And so before we closed an investigation of Flynn, I wanted them to sit before him and say what is the deal?

So to review: the investigation was started to determine whether Flynn was in a clandestine relationship with Russia, and they conducted the interview to find out whether he was in a clandestine relationship with Russia. The interview was solidly within the scope of the predicated investigation.

And once that interview had happened, you had someone who was being investigated to learn whether he had clandestine ties with Russia who had lied about having called up Russia several times to undermine US policy. Which is pretty solid evidence in an 18 USC 951 investigation.

Now, Shea concedes that that investigation was still open. He concedes that the closing documents never got filed. Which is, really, all that should matter.

But he says that because the FBI already knew what Flynn had said, they didn’t have a purpose to interview him.

He does that, first of all, by arguing that when the FBI discovers you’ve called up the foreign country that just attacked us and told them not to worry about it, and then the Vice President makes it clear you’ve lied about that, did not justify extending an investigation into whether Flynn was secretly working for 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. This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one, see Ex. 7 at 1-2, as well as its ongoing inability to espouse a consistent justification for its probe in conversations with DOJ leadership, See Ex. 3 at 5. In fact, Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation. Id.

In short, Mr. Flynn’s calls with the Russian ambassador—the only new information to arise since the FBI’s decision to close out his investigation—did not constitute an articulable factual basis to open any counterintelligence investigation or criminal investigation. Mr. Strzok and Ms. Page apparently celebrated the “serendipitous[]” and “amazing” fact of the FBI’s delay in formally closing out the original counterintelligence investigation. Ex. 7 at 1. Having the ability to bootstrap the calls with Mr. Kislyak onto the existing authorization obviated the need for the “7th Floor” of the FBI to predicate further investigative efforts. In doing so, the FBI sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens.

Even though Shea has not contested the basis for the investigation in the first place, which was explicitly an 18 USC 951 investigation, he basically argues it is improper for the FBI to investigate whether people might be secretly working with Russia. At one point, notably, he pretends that an investigation that explicitly considered a 951 prosecution from the start is just about FARA.

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.

Having done that, he then argues that meant there was no basis for the interview.

In light of the fact that the FBI already had these transcripts in its possessions, Mr. Flynn’s answers would have shed no light on whether and what he communicated with Mr. Kislyak.—and those issues were immaterial to the no longer justifiably predicated counterintelligence investigation. Similarly, whether Mr. Flynn did or “did not recall” (ECF No. 1) communications already known by the FBI was assuredly not material.

Under these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are “material” to an investigation that—as explained above—seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.

Consider: Flynn could have dealt with this interview in many different ways. He could have admitted his statements, which would have made it clear he wasn’t hiding the calls (though he had taken other steps to hide them). He could have refused the interview. Or, he could have lied, to cover up what he had one.

Just one of those actions would make it more likely he was secretly working for Russia. And that’s what he did. It’s hard to understand how anything could be more material to an ongoing counterintelligence investigation (and, indeed, FBI took the same approach with both Carter Page and George Papadopoulos when their investigations became public).

Shea pretends Flynn’s guilty pleas don’t count

Note how Shea argues that DOJ has decided to drop this prosecution as if they’d need to convince a jury. Bizarrely, when Shea admits that Flynn has already pled guilty, he neglects to mention the second time he did so.

On November 30, 2017, the Special Counsel’s Office filed a criminal information against Mr. Flynn charging him with a single count of making false statements in violation of 18 U.S.C. § 1001(a)(2). ECF No. 1. Mr. Flynn pleaded guilty to that offense, see ECF Nos. 3-4, but moved to withdraw that guilty plea on January 14, 2020, ECF Nos. 151, 154, 160. On January 29, 2020, Mr. Flynn also filed a “Motion to Dismiss Case for Egregious Government Misconduct and in the Interest of Justice,” ECF No. 162, and supplemented that motion on April 24 and 30, 2020 based on additional disclosures, see ECF Nos. 181, 188-190. Both Mr. Flynn’s motion to withdraw his guilty plea and motion to dismiss the case remain pending before the Court.3

He simply ignores that Flynn pled guilty, again, before Emmet Sullivan, on December 18, 2018.

Shea excuses those pleas — the provenance of the Judge in this case, not DOJ — by saying poor Mike Flynn didn’t know about all this newly discovered information.

Mr. Flynn previously pleaded guilty to making false statements. See Def’s Plea Agreement, ECF Nos. 3-4. In the Government’s assessment, however, he did so without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him. Mr. Flynn stipulated to the essential element of materiality without cause to dispute it insofar as it concerned not his course of conduct but rather that of the agency investigating him, and insofar as it has been further illuminated by new information in discovery.

Here’s why Shea’s silence about Flynn’s December 18, 2018 plea is so important, though. First of all, Flynn actually knew virtually everything listed in this filing by his second guilty plea, which both the prosecution and Sullivan himself have pointed out. More importantly, when Flynn asked for copies of all the materials listed here as Brady materials (which is itself proof he knew they existed), Sullivan said he wasn’t entitled to them.

Nowhere does Shea deal with the reality of this case, that Flynn has already pled guilty twice, once knowing most of what is laid out in this filing.

So to sum up:

Shea says there’s new information, except all of this information was known to DOJ when they prosecuted Flynn. He’s the same DOJ, under the same Administration, and everyone involved with the case had access to this information.
Shea says whether someone covers up what he did is immaterial to an investigation of whether they’re working clandestinely for another country.
Then Shea claims Mike Flynn didn’t account for all this when he pled guilty the last two times, when in fact the record shows he did know most of it before he pled the second time, and even so, Judge Sullivan judged that he wasn’t entitled to it.

Ultimately, by making a claim there’s new information when DOJ had the information all the time but Mike Flynn did not, Shea admits — seemingly without awareness of doing so — that DOJ has become the defense attorney for a sworn felon.

As I keep saying, I would hesitate to predict how Sullivan will respond to this. But I would be surprised if he didn’t recognize all the giant holes in Shea’s argument.

As Predicted, Billy Barr Bolloxed the Mike Flynn Prosecution

May 7, 2020/74 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

In advance of a status report due tomorrow, Brandon Van Grack withdrew from the Mike Flynn case.

The AP reports that DOJ has filed paperwork to withdraw from the case, based on findings from Jeffrey Jensen’s review.

In court documents being filed Thursday, the Justice Department said it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.” The documents were obtained by The Associated Press.

The Justice Department said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview on January 24, 2017 was “conducted without any legitimate investigative basis.”

While Van Grack has withdrawn from all Flynn-related cases before Emmet Sullivan, he has not yet withdrawn from two other open cases he’s on, and he signed his withdrawal FARA Chief.

As noted in this post, Sullivan has discretion over whether to accept this withdrawal.

Update: Here’s the motion to withdraw. It is easily rebuttable — we’ll see whether Sullivan does so on his own.

Ric Grenell Declassified George Papadopoulos’ Brags about Fucking Older Women, but Not about Befriending Sergey Millian

May 7, 2020/11 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

In the name of exposing “FISA abuse,” Lindsey Graham got Ric Grenell to declassify details of George Papadopoulos bragging about fucking a woman who was 42.

CT: I was banging a 42-year-old. That’s the oldest I ever went. And she was the best sex I ever had in my life.

CHS: You know you can’t, uh, knock down them…

CT: But 42, that’s like borderline old, you know.

But Grenell left what DOJ IG treated as a reference to Sergey Millian living in Brooklyn classified (see page 66).

Grenell did so even though this reference to “Sergey” has already been formally declassified, for the DOJ IG Report (though I would argue that in places DOJ IG’s transcriptions are not always fair descriptions of what the transcripts show).

Papadopoulos did not say much about Russia during the first conversation with Source 3, other than to mention a “friend Sergey … [who] lives in … Brooklyn,” and invite Source 3 to travel with Papadopoulos to Russia in the summertime.

Perhaps this just stems from bureaucratic incompetence. But the Trump Administration made a fairly aggressive decision to declassify details about Sergey Millian for the DOJ IG Report because it served their narrative about Christopher Steele. But when it came time to claim–abundant evidence in the transcripts to the contrary–that George Papadopoulos wasn’t an obvious subject for a counterintelligence investigation, the Trump Administration treated one of the most damning details as classified.

This matters, because the frothy right has been ginning up a scandal over the delayed release of the House Intelligence transcripts, and the fact that, having been told everything is ready, Adam Schiff is taking a few days to review what Grenell has done to ensure the integrity of the redactions. They’re doing so even as both Mark Warner and Richard Burr spent the beginning of John Ratcliffe’s confirmation making sure the declassification of their report on the Russian operation would be quick and non-partisan.

But we’ve already got hints that Grenell is politicizing the declassification process. In a 90-page transcript, he redacted the detail that most undermined the frothy right narrative.

Lindsey Graham and Ric Grenell Reveal Mike Flynn May Not Have Fully Disclosed His Foreign Contacts

May 6, 2020/9 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Lindsey Graham has used the tenure of Ric Grenell to get a slew of stuff declassified, such as a George Papadopoulos transcript bragging about fucking an older woman that redacts a reference to Sergey Millian, even though the Millian reference is the entire point of the exercise of releasing such transcripts. They’re doing it in the name of “FISA abuse,” even though most of it doesn’t relate to FISA and none of the additional material shows abuse beyond the FBI’s over-reliance on informants (which Lindsey has shown no interest in reforming).

Tonight, they released the memo Rod Rosenstein used to scope out Robert Mueller’s mandate on August 2, 2017 (I wrote about the original release of it here.)

The declassified bits describe the crimes FBI was investigating Carter Page, Paul Manafort, George Papadopoulos, and Mike Flynn for. Plus, there’s one other Trump person whom I’ve been told is not the person you think it is (though I understand new details about it seeing it redacted like this), the description of which is entirely classified.

For Page, Manafort, and Papadopoulos, the memo authorizes an investigation into whether they “colluded” in the 2016 election. Such a bullet point is not included for Flynn, one of many pieces of evidence that the FBI had ruled this out in late 2016/early 2017 only to discover that Flynn had called the country up that had just attacked us and told them “no big deal.”

Page was only being investigated for “collusion;” the memo doesn’t include his willingness to deal known Russian spies non-public economic information about American companies.

For the others, there were additional bullet points authorizing investigation into stuff there was substantial evidence they had done. For Manafort, the memo included two things that were ultimately charged:

Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych;
Committed a crime or crimes arising out of his receipt of loans from a bank whose Chief Executive Officer was then seeking a position in the Trump Administration;

Though Stephen Calk is being prosecuted for Manafort soliciting a loan he had no business getting, not Manafort.

And the memo didn’t include all the things Manafort was charged or even investigated for.

With Papadopoulos, the memo (written less than a week after he’d been arrested after taking money from some Israeli) also included Israeli influence peddling.

Committed a crime or crimes by acting as an unregistered agent of the government of Israel;

That is, for Manafort and Papadopoulos, this memo authorized an investigation into things they were known to have done.

Which brings us to Flynn. As noted, Rosenstein did not authorize Mueller to investigate whether Flynn “colluded,” which is proof that once the FBI chased something down, they dismissed it.

The list of things Mueller was authorized to investigate includes three things that Flynn was known to have done (the italics are what Flynn was known to have done).

Committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition;
Committed a crime or crimes by making false statements to the FBI when interviewed about his contacts with the Russian government;
Committed a crime or crimes by acting as an unregistered agent for the government of Turkey;

Flynn did converse with at least one Russian government official during the transition, though as written, this suggests there may have been more. Flynn did lie to the FBI when asked about those contacts. Flynn was still lying about his knowledge that his foreign influence peddling was for the government of Turkey, not some Dutch company.

That is, this memo (and most non-“collusion” bullet points) lays out things the person in question was known to have done.

But this detail is completely new:

Committed a crime or crimes by failing to report foreign contacts and income on a Form SF-86 that he completed in anticipation of his being selected to serve as the National Security Adviser to President Trump;

Lindsey Graham just released a document suggesting that General Flynn lied on this SF-86 form for clearance by hiding some of his foreign contacts.

To be sure: I’ve been told Flynn told DIA of the foreign contacts that raised the most suspicion, such as bopping off to Moscow to sit with Putin at a gala for RT. That said, last year DOJ claimed that Flynn’s DIA record was actually inculpatory, not exculpatory information they should have turned over as Brady.

Request #15: The government is not aware of any information in possession of the Defense Intelligence Agency that is favorable and material to sentencing, including the information that the government provided on August 16, 2019. Specifically, the information of which the government is aware, including that August 16 production, is either inculpatory or has no relevance to the defendant’s false statements to the FBI on January 24, 2017, or to the FARA Unit.

What Lindsey Graham just released to claim there was some kind of FISA abuse suggests that the FBI — which had access to the FISA intercepts showing Mike Flynn calling up the country that had just attacked us and telling them no big deal — believed on August 2, 2017 that Flynn had not disclosed all his foreign contacts when he got a security clearance tied to becoming National Security Advisor. Flynn’s 2016 security clearance review is something Powell has raised repeatedly in her bid to get Flynn’s prosecution set aside. If she knew that Flynn was investigated because he failed to fully disclose all his foreign contacts, that may explain why.

Which is to say, Lindsey Graham thinks he’s exposing abuse. But in the case of Flynn, he’s not only showing that the FBI stopped pursuing leads once they had chased them down, but were chasing one that was previously unknown.

The Four Ways Trump Can Ensure Mike Flynn Avoids Accountability for His Lies

May 4, 2020/19 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

In this post, I suggested that Billy Barr and Sidney Powell have worked together to pursue about four different ways to ensure that Mike Flynn does no prison time (though, it’s worth remembering, that Robert Mueller recommended probation for Flynn, and it’s only Flynn’s own efforts to undermine Mueller’s authority that have exposed him to real prison time). I also said that most people engaged in the debate over Flynn’s status show little to no familiarity with the status of his case. I’d like to lay out that status here.

Flynn’s sworn statements

First, it’s important to know the substance of the various statements Mike Flynn has made and how they conflict, to understand how risky his current gambit would be if not for the personal efforts of the Attorney General. All these statements are at issue:

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.

The substance of these sworn statements are important for several reasons. First, it is virtually impossible to look at these four sworn statements and conclude that he did not lie in at least one of them. In the course of challenging his guilty pleas, he has made statements that may amount to perjury, perjury to judges rather than false statements to Peter Strzok.

In addition, these statements severely constrain both of Flynn’s current legal attempts to renege on his guilty pleas, because he has already sworn that the things he now is claiming were not true.

They also change the landscape of possibilities if one of them — a motion to withdraw his plea — were successful, because there are a number of witnesses who have already testified that his statements were false for some of the statements that he twice pled were false. For example, several of Trump’s aides told Mueller they recognized Flynn lied in his FBI interview. Others told Mueller he was lying to them. KT McFarland and Jared Kushner testified about the UN ploy. And a number of people changed their testimony after Flynn pled, making it more clear that they were all adhering to a cover story. In short, while many people believe that if DOJ had to prosecute Flynn for his original false statements, it would pit him (with little credibility) against Strzok (with severely damaged credibility), that doesn’t account for the other witnesses against him who, if they altered their testimony, would put themselves at risk for false statements charges.

The four efforts to reverse Flynn’s guilty pleas

By my read, there are four efforts underway to reverse Flynn’s guilty pleas. Few people realize that Flynn has two separate legal challenges going on.

Motion to withdraw his guilty plea

The first is a motion that argues that Covington & Burling, the white shoe law firm that (at least per public records) gave Flynn 30 months of representation they never got paid for, provided inadequate legal representation in at least three matters:

Covington wrote the FARA filing that posed the biggest legal risk for Flynn when he pled guilty in 2017, and so had an incentive to advise him to plead guilty so as to avoid any exposure themselves for presenting a deceitful filing to DOJ.
Covington did not provide Flynn adequate notice of the conflict this presented.
Covington also withheld information from Flynn — such as that the FBI Agents who interviewed him thought he was a convincing liar — that he now claims would have led him not to plead guilty had he known it.

Even in the public record, there’s evidence these claims are not true. For example, notes taken by Covington that Flynn himself released record him telling them things that made it into the FARA filing but which even his grand jury testimony he said were not true. In other words, both materials Flynn has himself released and his own sworn statement undermine this claim.

Furthermore, Flynn’s own filings show other holes in Flynn’s argument, such as at least one additional warning from Covington about any conflict, along with evidence Covington found an unconflicted attorney and suggested Flynn consult with that lawyer about their representation.

But since Flynn filed this motion, Covington has turned over 500 additional pages of evidence to prove their competence, as well as 100 pages of sworn declarations. Sidney Powell has made aggressive claims that damage Covington’s reputation, they appear to have gotten paid nothing for representing Flynn, and Judge Emmet Sullivan showed some interest in putting everyone under oath to fight this out. So it’s possible that this will lead to a spectacular hearing where very reputable Republican lawyers will have an opportunity to disclose how much Flynn lied to them.

That said, Sullivan seems to be getting justifiably cranky with Covington because they keep finding documents they didn’t turn over to Flynn last year. He ordered the firm to file a notice of compliance indicating they had researched all their files to make sure they had gotten everything, which is due at noon today.

If Flynn succeeded in withdrawing his guilty plea without incurring perjury charges for his two plea allocutions and his grand jury testimony, he still could be prosecuted. While it’s unlikely (unless this whole effort extends into a Joe Biden administration), that prosecution could include a Foreign Agent 951 claim on top of the FARA claim and it could include Flynn’s son.

On May 8, the government will provide a status update or proposed briefing schedule on Motion to Withdraw. Most likely, this will be an anodyne filing. But it’s possible we’ll get a summary of what Covington included in the 600 pages they turned over, which may be very damaging to Flynn’s case.

Motion to dismiss for prosecutorial misconduct

In addition to the motion to withdraw, Flynn also is asking Judge Sullivan to dismiss his case for prosecutorial misconduct. Effectively, Flynn is arguing that mean FBI agents had it in for Mike Flynn and so ambushed the 30 year intelligence veteran on January 24, 2017, and tricked him into lying so they could either get him fired or prosecute him.

Because Powell asked Sullivan to dismiss Flynn’s case in a motion that purported to be a Brady challenge last fall, Judge Sullivan has already written a meticulous 92-page opinion denying these arguments, explicitly distinguishing what happened to Flynn from what happened to Ted Stevens. Powell even had to and did say, in this motion to dismiss, something akin to, “no, even though I already asked you to dismiss this case, that wasn’t my motion, this is.” Flynn’s original motion submitted in January, however, added nothing new. Rather, it asked Sullivan to dismiss the case against Flynn because FBI’s FISA applications against Carter Page were problematic.

Since then, Flynn has used the serial receipt of documents turned over in conjunction with Jeffrey Jensen’s review of his case to claim new evidence of misconduct. Those documents include proof that, contrary to Flynn’s claims, the promise that by pleading guilty Flynn would spare his son criminal investigation was not a promise. It includes notes on how the FBI prepared for the interview with Flynn, notes that — because they reflect actions not taken — are probably not directly relevant to his case anyway. Nevertheless, those notes are what Flynn’s backers point to to claim that the FBI thought it would be obvious that someone who had secretly called up the country that just attacked America and convinced them not to worry about the punishment for the attack could not serve as National Security Advisor. Finally, those documents include proof that, after considering whether some things Flynn had done in the past meant he could be a Russian threat, the FBI concluded they did not, and only after that discovered the call transcripts with Sergey Kislyak showing something far more concerning. Powell released these filings with no substantive argument about how they prove her case, using them instead to fire up Flynn’s backers who show little understanding of the case.

It’s always a fool’s errand to predict how Judge Sullivan will feel about such things. But this last filing actually dramatically undercuts a claim that Powell has made from the start, that the effort to “get” her client arose out of personal animus, and continued in unrelenting fashion until the FBI trapped Flynn in a perjury trap. If the FBI were motived by animus, as alleged, then they would never have moved to close the case against him. The only reason they did not is because they found evidence he had secretly called up the country that just attacked us and told them not to worry about the punishment. That is, the FBI reviewed some allegations against Flynn, found them wanting (which is proof that they were basing their decisions on the evidence, not any negative views about Flynn), and only after that did he give them real reason to be concerned, something totally unrelated to many of the allegations Powell based her original complaints on, that they continued the prosecution. (Flynn’s backers often forget that the FARA investigation had already started by this point, which was an urgent concern of its own right.)

In any case, those serial releases had been serving to keep the frothy right chasing one after another shiny object. But last week Judge Sullivan called a halt to them, ordering Powell to hold all her new exhibits until the government is done turning them over.

On May 11, the government will file a response to whatever Flynn’s motion to dismiss consists of by that time, with Flynn’s reply due May 18.

The Jeffrey Jensen review of Flynn’s prosecution

Approximately the week before Flynn filed his motion to dismiss, Barr appointed the St. Louis US Attorney, Jeffrey Jensen, to review Flynn’s prosecution.

It’s hard to overstate how abusive this was, on Barr’s part. When Barr did this, Judge Sullivan had already ruled there was no reason to dismiss the prosecution, and ruled that the items now being produced were not discoverable under Brady. What the review has done, thus far, has been to provide Flynn with documents that someone — presumably Derek Harvey — had reviewed, so he can obtain stuff even Judge Sullivan ruled he was never entitled to receive.

Moreover, Barr did this even though he had already appointed John Durham to review what has come to incorporate Flynn’s prosecution under a criminal standard. Durham could obtain all this evidence himself as part of his investigation, but he can only do something with it if it is evidence of a crime. Effectively, Barr has asked two different prosecutors to review this prosecution, the latter effort of which came after a judge had already ruled against it.

That said, given the prospect that litigation over Covington’s supposed incompetence may be highly damning to Flynn’s reputation, the Jensen review provides Barr with another option. He can use it as an excuse to order prosecutors to withdraw their opposition to Flynn’s motion to dismiss. It’s unclear whether Jensen has found anything to merit that yet, and Jensen appears to be engaging in analysis that might undercut where Barr wants to go with this (though given how closely Deputy Attorney General Jeffrey Rosen’s office is involved in this, I doubt that will happen). That said, Barr’s treatment of the Mueller Report proves that he has no compunction about claiming that a prosecutor’s conclusions say one thing when in fact they say something very different. And so at any moment, Barr may order prosecutors to effectively wipe away the prosecution of General Flynn.

One tea leaf, at least thus far, is that Brandon Van Grack has not withdrawn from Flynn’s case. Had he been referred for misconduct, you would expect that to show up in the docket.

The inevitable pardon

These efforts — Flynn’s effort to withdraw his guilty plea, his effort to get his prosecution thrown out for misconduct, and DOJ’s effort to find some basis to dismiss it on their own — are all ways of eliminating the Flynn prosecution in ways that would help Trump’s claim of victimization. They would provide a way for Trump to pay back Flynn’s silence about his own role in the sanctions call with Kislyak without having to issue a pardon to do so.

But those efforts can only do so much by themselves, particularly given the number of conflicting sworn statements Flynn has made.

Assuming that Barr would eventually move to withdraw DOJ’s opposition to Flynn’s motion to dismiss, it might have the effect of mooting the motion to withdraw Flynn’s guilty plea as well, effectively wiping out the existing charges against Flynn. But only if Sullivan were to accept the dismissal of the two pleas; it would be at his discretion.

And Judge Sullivan could, on his own, deem that Flynn has lied to him (and Judge Rudolph Contreras) under oath. There is literally no way to reconcile the conflicts in Flynn’s sworn statements; some of them must be false. And Sullivan has the authority to — and the temperament to — appoint a special prosecutor to investigate and prosecute Flynn for perjury. That’s effectively what Sullivan did in response to the misconduct against Ted Stevens.

As noted above: it’s a fool’s errand to try to predict how Judge Sullivan will respond to stuff like this. It’s unclear whether he will be impressed with the new evidence Powell is floating. But it is possible he remains as fed up as he clearly was in December, and as a judge he does have means of doing something about it.

But as President, Trump always has the power of pardon, and there is zero reason to believe he won’t be using it aggressively on November 4, regardless of the outcome. Indeed, if Trump were to pardon Flynn for perjuring himself before several judges, it would be the exact equivalent of what he did for Joe Arpaio, saving him from being subject to the authority of a judge. Trump can do that at any time — he just presumably wants to avoid doing so until after the election.

Ultimately, Trump has four possible ways to get Flynn out of his guilty verdict. And it is virtually guaranteed that one of them will work.

Update: Corrected how long Covington worked for Flynn.

Update: bmaz has convinced me that even if Barr forces DOJ to end its contest to the motion to dismiss, Sullivan would still have discretion to reject any motion to dismiss; I’ve updated the post accordingly.

Update: Corrected that it was Flynn, not the government, that submitted the exhibit showing that Covington gave Flynn more warning on conflict than he claims in his own declaration.

Update: Here’s Covington’s notice of compliance with Sullivan’s order to make sure they’ve handed everything over. Unsurprisingly, Sidney Powell is asking for stuff that goes well beyond the client file, perhaps as a stall.

Roger Stone Assistant Andrew Miller Fought His Subpoena Far More Aggressively than His Former Boss

May 3, 2020/27 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

I want to look at a notable asymmetry in the way Roger Stone and his former assistant Andrew Miller responded to being subpoenaed by Robert Mueller’s team.

As I noted in an update to this post, in November 2018, Mueller’s team subpoenaed Stone after Chuck Ross published texts Stone gave the journalist so he would publish a bullshit claim that Randy Credico was Stone’s back channel.

Pointing to the text messages, Stone asserts that Credico “lied to the grand jury” if he indeed denied being Stone’s contact to Assange.

“These messages prove that Credico was the source who told me about the significance of the material that Assange announced he had on Hillary. It proves that Randy’s source was a woman lawyer,” Stone told TheDCNF.

Ross published five sets of texts, four of which he clearly attributed to Stone.

The text showing Credico reminding Stone that he had an earlier source by itself actually undermined Stone’s claim to HPSCI that Credico was his source. Emails FBI already had in possession showed Credico’s comms with Stone post-dated Stone’s public claims to have had an intermediary to Julian Assange.

By providing texts to Ross Stone had told HPSCI he didn’t have, he provided all the evidence needed to be found guilty of one charge in his eventual indictment. In addition, unbeknownst to Stone, Credico didn’t have some of his own texts, including some of the ones that Stone had retained. So by providing them to Ross, Stone made it clear he had texts that were otherwise unavailable.

The fact that Stone had those texts, from a phone he stopped using in 2016, also contributed to the probable cause that the phone would be in one of Stone’s homes when the FBI searched them.

The affidavit supporting the search of Stone’s homes makes it clear that Stone did comply when the FBI subpoenaed him for texts he was freely willing to share with Chuck Ross, though the description of it as “recent[]” may suggest that Stone stalled a bit.

The government has only recently obtained text messages between Stone and Credico during some period of the campaign in 2016 from Stone’s subpoena production, issued after media reports in November 2018 stated that Stone’s attorneys were able to extract text messages between Stone and Credico from a phone Stone stopped using in 2016.

Still, Stone complied with a Mueller subpoena with nary a public squawk.

Compare that with a new detail the files released last week make clear about Andrew Miller’s year long fight of a Mueller subpoena. We knew that, after Miller agreed to an FBI interview with no counsel on May 9, 2018, he then commenced a year-long subpoena fight to avoid testifying before the grand jury, with an inordinate amount of legal fuckery. We knew that the very last thing that occurred under Mueller’s authority was the final negotiation for Miller’s testimony — though the grand jury Miller appeared before was actually not Mueller’s, suggesting Miller’s testimony was needed for the ongoing investigations still hidden in court filings released last week. (Prosecutors subpoenaed Miller to be available for Stone’s trial but never called him, so his testimony did pertain in some way to the lies Stone told HPSCI.)

What we didn’t know before last week is how much Stone communicated with Miller while the former assistant launched this subpoena challenge. After he met with the FBI, an August 2018 warrant makes clear, Stone and Miller spoke by phone. They did the next day too, when Mueller subpoenaed Miller. Miller stalled in a variety of ways for a month. Then, on June 14, after Mueller moved to force Miller to testify, Stone and Miller emailed five times. That’s the period when Miller got a new lawyer, Paul Kamenar, who led Miller’s subpoena challenge to the Supreme Court, all the while claiming Miller was challenging the subpoena it for libertarian reasons. Between May 23, 2018 and August 3, 2018, as that challenge was proceeding, Stone and Miller exchanged over 100 emails. (Chief DC Judge Beryl Howell, who authorized the August 3 warrant, had just ordered Miller to testify as soon as possible, which led directly to his appeal.)

The difference in response to the subpoena may simply reflect that Miller launched the challenge to Mueller’s authority that Stone otherwise might have made. Or it may reflect that there’s no defense to a subpoena if you’re selectively feeding the subpoenaed materials to the press.

But it also might suggest that Stone viewed whatever testimony Miller provided to be more damning to Stone than turning over texts that would prove that Stone’s claim that Credico was his back-channel to Assange was bullshit.

On April 24, Kamenar filed a notice of appearance as Stone’s lawyer in his prosecution and will represent Stone for the appeal.

The Frothy Right Wingers Claiming “Perjury Trap” Are Accusing General Flynn of Perjury

May 2, 2020/48 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

The frothy right is in full frenzy claiming that poor General Flynn, with his thirty years of intelligence experience, got naively caught in a perjury trap by FBI agents he regarded as his allies.

There’s a problem with that. Every single person claiming that Flynn was coerced to lie by the FBI — which necessarily concedes he did lie — is also accusing Flynn of perjuring himself in a recent sworn statement before Judge Emmet Sullivan. If what they say is true, then Flynn committed a crime in January, one for which the statute of limitations will extend until 2025.

Take this concession from right wing propagandist Jim Hanson, where he states that, “it seems clear he did lie.”

Hanson appears to excuse these lies because he doesn’t much care that, in the wake of an attack by a hostile foreign country, Flynn called up that country and told them it was no big deal, all while taking steps to hide that he had done so. That is, Hanson seems to excuse the lie because (in his mind, apparently) it is admirable for a man to work secretly with a country that has attacked America to help them avoid any repercussions for having done so.

Remember: Flynn told the FBI he thought an appropriate punishment for tampering with our elections would be a single Russian diplomat being sent home.

But once you’ve conceded that Flynn lied, you are accusing the General of perjury in a sworn filing submitted in January 29 which says,

On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI.

I am innocent of this crime, and I request to withdraw my plea.

Flynn’s declaration is full of other details that are provably false — such as that he was extremely busy and only had a limited amount of time to give the FBI Agents who interviewed him. Flynn talked about hotels, ISIS, and Trump’s knack for interior decorating before turning to that interview; Peter Strzok even wondered how he had so much time to shoot the shit.

So when Flynn claims, in the declaration, to still not remember if he discussed sanctions with Kislyak or the UN vote with Israel, it’s not only not credible, but also refuted by other witness testimony, including KT McFarland’s own 302s and those of several top Trump aides, who told Mueller they recognized in real time that Flynn had lied.

Flynn technically maintains he did not lie (though that means his sworn plea allocutions were perjury, and he has never reneged on his sworn grand jury testimony admitting he knew while working for Ekim Alptekin that he was actually working for the Turkish government).

But if, like Hanson, you concede he did lie, if you believe the FBI did succeed in capturing Flynn in a “perjury” trap (actually, a false statements trap), then you, by definition, believe that his sworn statement from January is a lie — perjury, and perjury not coerced by any evil FBI Agents but instead coaxed by his pretty Fox News lawyer Sidney Powell.

It is a testament to how unmoored from any aspiration to truth that this entire campaign to excuse Mike Flynn’s coming pardon is that key propagandists participating in it don’t bother to familiarize themselves with the facts or the precarious net of sworn claims Flynn has made. There appears no concern, on the part of the propagandists, to ensure their stated views fit logically with Flynn’s sworn statements, to say nothing of adhering to the known facts or reality.

Ultimately, though, this debate is not about truth, because no one contests that Flynn got caught telling the hostile country that had just attacked us in 2016 not to worry about any retaliation, and Republicans are simply trying to find a way to minimize the political fallout in ensuring he pays no price for having done so. Ultimately, Billy Barr has rolled out four possible ways he can guarantee Flynn won’t do prison time, with varying degrees of political cost to Trump and blithely incurred damage for rule of law, and it is virtually assured that one of those ways will work.

But the willingness of those wailing “perjury trap” to concede that Flynn did lie introduces an interesting dynamic into these issues of power. That’s because Judge Emmet Sullivan, as recently as December, and possibly as recently as last week, showed some impatience with being dicked around like this (though he’s also increasingly impatient with Covington & Burling’s failures to provide Flynn all their records). And Sullivan has the ability to find that Flynn has lied to him, Emmet Sullivan, repeatedly, including in his declaration from January. Sullivan has the means to do so even if Barr orders Flynn’s prosecutors to withdraw their contest of his motion to withdraw.

It would raise the cost of a pardon if Trump had to do it after a judge were to find that Flynn continued to lie, in 2017 to Judge Contreras, in 2018 to Judge Sullivan, and again in 2020 to Judge Sullivan, all without the coercion of some baddy FBI Agents purportedly springing a trap on him. And yet that’s precisely the scenario that the perjury trap wailers make more likely.

The Roger Stone Prosecution Was One Step in an Ongoing Investigation

May 1, 2020/28 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

I’ve spent the last few days going through the warrants released the other day in detail. This post attempts to summarize what they show about the Stone investigation.

First, understand the scope of this release. According to a filing the government submitted a year ago, they considered the media request to apply to, “warrants to search Stone’s property and facilities [and] other warrants that were executed as part of the same line of investigation” obtained under both Rule 41 and Stored Communication Act. It does not include warrants from other lines of investigation that happened to yield information on Stone. That said, there is good reason to believe there are either filings that were entirely withheld, or that DOJ’s interpretation of what constitutes the “same line of investigation” is fluid.

In his order to release the files, Judge Christopher Cooper said that the individual redactions hide, “the private information of non-parties, financial information, and non-public information concerning other pending criminal investigations.” In the hearing on the release, the media coalition suggested that people who had testified at Stone’s trial should not be protected under the guise of privacy, and that seems to have been the standard adopted on redactions of names. In general, then, this post assumes that the redaction of names (such as Ted Malloch) protects the privacy of people who did not testify at trial, but the redaction of entire paragraphs (such as 7 paragraphs of boilerplate describing why Malloch was suspected to be involved) was done to protect ongoing investigations. In the list of warrants below, I’ve marked with an asterisk those that — either because they weren’t for Stone’s property or because they didn’t yield evidence relevant to the the obstruction charges he was prosecuted for — were not provided to Stone in discovery; I’ve based that on the list in this order (see footnote 2).

This investigation may well have started as a box-checking exercise, effectively checking whether John Podesta’s allegations that Roger Stone had learned of the hack targeting Hillary’s campaign manager ahead of time. It appears that Mueller’s team slowly came to believe that Roger Stone had gotten advance notice — and possibly advanced possession — of the Podesta email drop. Along the way, it ruled out one after another theory of how he did so.

Two of the most fascinating applications — one pertaining to an Israeli contact and another regarding someone apparently introduced to Stone by Charles Ortel — seem to have fully (the Israeli lead) or partly (the Ortel one) fizzled. (I base that on whether communications described in the affidavits continue to show up in later applications and whether entire paragraphs remain redacted.)

But the government still seems to believe that Stone worked with Corsi and Malloch on these issues. The government is obviously still trying to figure out whether the rat-fuckers and hoaxsters managed to optimize the release of the Podesta emails on October 7, 2016 to drown out the Access Hollywood drop. Mueller’s uncertainty on this point is something explained in redacted sections of the Mueller Report.

Along the way, Mueller developed two side prongs to the investigation: an examination of how Stone used social media to advertise WikiLeaks documents (it’s likely that investigation came to include ads that may have replicated themes being pushed by Russia and may have involved improper collaboration with the campaign), and the obstruction and witness tampering investigation Stone was prosecuted for.

More interesting still, in fall 2018, Mueller’s team started pursuing several leads (including the Ortel one), most of which — if the rule that entirely redacted paragraphs reflect ongoing investigation — continue to be investigated. Indeed, it appears that the prosecution of Stone for obstruction served partly as a means to initiate a prosecution against him, possibly entice him to flip against Trump or others, but perhaps mainly to obtain Stone’s devices in an attempt to get texts from 2016 to 2017 he had deleted, as well as the content of the encrypted communications he had sent using those devices. That is, the search, arrest, and prosecution of Stone appears to have been just one step in an ongoing investigation, an investigation that may be targeting others (including Julian Assange).

Identify the Malloch and Corsi connection (May 2017 to July 2018)

From May (when Mueller’s team first obtained subscriber records on Stone’s Twitter account) until November 2017, the investigation may have been little more than an effort to assess the spat between Stone and John Podesta over Stone’s August 21, 2016 “time in the barrel tweet.” After the team obtained Stone’s Twitter accounts, they moved to obtain the email accounts on which he conducted conversations started on Twitter. In November, Mueller got a warrant for his own team to access Julian Assange’s Twitter accounts (though the government surely already had obtained that). By December, Stone’s email accounts would have led Mueller’s team to believe that Ted Malloch, who was in London, could have been the back channel Stone kept bragging about, and so got his Gmail account. Mueller gagged Google to prevent Malloch from learning that. As a result, Malloch was presumably surprised when he arrived at Logan airport in March and was searched — a search conducted to obtain his phones, partly in an attempt to get to his UK-hosted email.

After Steven Bannon was interviewed in February 2018, Mueller’s team used that to obtain Stone’s Apple account; while not indicated anywhere in these applications, that’s where they would discover Stone and Michael Caputo had responded to a Russian offering dirt on Hillary.

In July, Mueller’s team obtained Jerome Corsi’s email and Apple accounts (there’s no record of them obtaining his Gmail account, but Corsi’s description of Mueller’s knowledge of his August 2016 searches suggests they got it). These affidavits begin to include a 7-page redaction that may indicate ongoing investigation into whether Stone or Corsi optimized the October 7 Podesta email release.

In this phase, the crimes being investigated expanded from just hacking to conspiracy to aiding and abetting. When Mueller got the Assange warrant, he added the illegal foreign contribution charge (one he declined to prosecute in a long redacted passage of the Mueller Report).

Collect materials on Stone’s overt social media campaigns (August 2018)

On May 18, 2018, Mueller’s team interviewed John Kakanis, who had worked on tech issues for Stone during the election. Afterwards, Mueller’s team obtained a series of warrants to collect the social media campaigns Stone had conducted on issues related to the Russian hack-and-leak. Those warrants included one for several Facebook accounts, a Gmail and Twitter account Stone used for such issues, and a Facebook and Gmail account under the Brazilian name Falo Memo Tio. Stone apparently did not receive the Facebook Falo Memo Tio account, and that warrant included a gag.

Track Stone’s efforts to obstruct the investigation (August 2018)

As Mueller’s team started interviewing people loyal to Stone, they became aware that Stone was communicating with witnesses. In May, Mueller obtained a pen register on Stone’s email accounts, allowing them to track with whom Stone was communicating. An August 3, 2018 warrant describes how investigators used those toll records to track such communications:

In the wake of Michael Caputo’s interview, he and Stone communicated via his Hotmail account (this would have been obvious from the story Stone seeded with the WaPo not long after)
After FBI Agents approached Andrew Miller, Stone emailed him via Gmail at least 10 times and a over a hundred times after he started challenging his subpoena
Stone emailed both Corsi and Credico in May 2018
Stone hired a private investigator to conduct a background investigation into someone who had done IT work for him during the campaign and research where he could serve Credico with legal process; in a June 2018 interview, the PI told investigators he and Stone primarily communicated via iPhone text messages

This affidavit included a section (¶¶64-77), based off texts with Credico stored in Stone’s iCloud account and texts published by the media, describing Stone’s threats to Credico.

In response to Stone’s overt efforts to thwart the investigation, Mueller obtained new warrants on Stone’s Hotmail, Gmail, and Apple accounts, which would yield a great deal of evidence for the obstruction and witness tampering charges against Stone. From this point forward, those charges would be included on warrants targeting Stone. In addition, from that point forward, the government appears to have sought to obtain Stone’s communications with those whose testimony he was obstructing (though the names of others besides Credico are redacted).

Starting with the next warrant, affidavits would include a section (¶¶87-89) comparing what Stone had told the House Intelligence Committee with what his own communication records showed, language that would form the backbone for the obstruction indictment.

Investigate the spooky stuff (May to August 2018)

There’s a number of things in these warrants that are difficult to assess. They didn’t show up in Stone’s trial, and it’s unclear whether they were leads that fizzled or reflect far more damning evidence. For example, the Israeli source who kept trying (and ultimately succeeded, once) to use Stone to get a meeting with Donald Trump doesn’t appear to have amounted to much, at least not with respect to the WikiLeaks releases.

A far more intriguing detail is the FBI claim — that lacks details that would be necessary to assess its accuracy — that Stone was searching for details of the Russian operation before those details were made public. The FBI made that claim twice. First, in a July 28, 2018 affidavit, they described that someone conducted searches on dcleaks and “guccifer june” using IP addresses that might be Stone, starting on May 17, 2016. The suggestion is that Stone may have had advance notice of those parts of the Russian operation. But some journalists learned of dcleaks after it got launched in early June and before it got more attention later in the summer. And the original Guccifer, Marcel Lazar, signed a plea agreement in late May 2016. Given Lazar’s claim to have hacked a Hillary server, it’s not unreasonable to think Stone would be researching him. A later warrant discusses someone — who again could be Stone — searching on Guccifer the day that the site would go up, but before it was public.

During the course of its investigation, the FBI has identified a series of searches that appear to relate to the persona Guccifer 2.0, which predate the public unveiling of that persona. In particular, on or about June 15, 2016 (prior to the publication of the Guccifer 2.0 WordPress blog), records from Google show that searches were conducted for the terms “guccifer” and “guccifer june,” from an IP address within the range 107. 77 .216.0/24.

The same rebuttal may be made — that this was about Marcel Lazar and not Guccifer 2.0. But evidence submitted at the trial suggests that Stone started anticipating the June 2016 dump on June 13, not June 15, making the claim more credible.

That July 28 warrant also describes several accounts that look like the FBI suspect Stone of sophisticated operational security. These include:

A Gmail account created on July 28, 2016 (right in the thick of Stone’s effort to find out what WikiLeaks had coming next) and used until July 5, 2017
A Gmail account created on October 26, 2016 and used until August 8, 2017
A Gmail account created on June 27, 2016 and used in conjunction with Craigslist to communicate

The latter effort may suggest some serious OpSec, a way for Stone to communicate publicly without using his own comms.

Finally, there are matching Gmail and Facebook accounts the government obtained warrants for on August 28, 2018. These were old accounts with the Brazilian name Falo Memo Tio. It appears the government was interested in activity on this account from the last four days before the election. They obtained a gag for the Facebook warrant.

Seal warrants investigating an Agent of Foreign Power (August to September 2018)

The government tried to obtain proof that it was Stone doing those searches on Guccifer — as well as evidence about whom he may have met with in early August 2016 when he told Sam Nunberg he had dined with Assange — by obtaining his cell site location for June 14 through November 15 of that year.

Minutes after FBI Agent Andrew Mitchell (who had been the primary affiant on Stone warrants starting in May 2018) obtained that cell site warrant, FBI Agent Patrick Myers obtained a warrant for a mail.com account that Guccifer 2.0 had created on July 23, 2016 and used until October 18, 2016 (the account kept receiving traffic until February 2017). There are several remarkable things about this warrant. While FBI Agents in San Francisco obtained a warrant for it in August 2016, and someone — possibly Mueller’s team — obtained the headers from the account in September 2017, the government had never before obtained a full warrant on the account for the entire span of its activity. So Myers, seven weeks after Mueller released an indictment against the GRU, obtained that information in hopes it would provide more information about how the Guccifer persona had shared files.

The other FBI Agents investigating Stone, to the extent they described such things, were located in either Washington Field Office or FBI Headquarters in DC. Myers, however, was stationed in Pittsburgh, where the investigation into GRU had been moved (they were also working on an indictment for GRU’s hacking of WADA).

Myers’ involvement with Stone extended beyond this curious warrant for Guccifer 2.0’s account. Over the course of the next month, he obtained warrants for:

Stone’s Liquid Web server storing old communications
A Twitter account obtained for redacted reasons
Multiple Twitter accounts obtained for redacted reasons
Multiple Facebook and Instagram accounts obtained for redacted reasons
Multiple Microsoft and Skype accounts obtained for redacted reasons
Multiple Google accounts obtained for redacted reasons
A Twitter account for someone, probably referred by Charles Ortel, whose name ends in R and who traveled back and forth from the UK who Stone suggested, in October 2016, was his intermediary
Multiple Google accounts obtained for redacted reasons

All those warrants, as well as the Guccifer 2.0 account one, included a gag. One of those gag requests — for a warrant for some Twitter accounts — explains,

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation. Disclosure of this warrant to Stone could lead him to destroy evidence or notify others who may delete information relevant to the investigation.

Almost all of the warrants (not the R Apple one or the last Google one, though the R Apple one lists perjury) list FARA and 18 USC 951 (Agent of a Foreign Power) as crimes under investigation somewhere in the warrant, though often only in the gag request. To be clear, that doesn’t mean the FBI was investigating Stone as an Agent of a Foreign Power. The Guccifer 2.0 gag says FBI “is investigating WikiLeaks and others” for the listed crimes.

And those gags say the complexity of the investigation means it may extend more than a year from late September 2018. That is, in September 2018, the government took steps in an investigation they expected to last until around the time that Stone would eventually be tried, in November 2019.

Use the obstruction charges to seize Stone’s phones (January to February 2019)

The existence of those mystery warrants, none of which were provided to Stone in discovery and all but the R Apple one which appear to be ongoing, puts what happened in January 2019 in a very different light. At a time when Bill Barr promised to shut down the Mueller investigation as soon as he was confirmed yet while Mueller was still pursuing Andrew Miller’s testimony, the government obtained warrants to search Stone’s two homes, his office, and three devices seized in those searches (the affiants for those warrants had filed for earlier warrants in the investigation).

Unlike all the other warrants, those 2019 warrants listed only the obstruction, false statements, and witness tampering charges against Stone, largely tracking the indictment against him.

Those warrants emphasize the government’s interest in obtaining texts that might be accessed only via a forensic search of Stone’s phone, including texts sent via Apple, but also Signal, Wickr, and WhatsApp texts, as well as ProtonMail emails.

Which is to say, in the context of the warrants released this week, the prosecution of Roger Stone appears to be just one step in a far more serious investigation, one that may well be ongoing.

The warrants

August 7, 2017: Stone’s Twitter Accounts

This warrant only lists CFAA as the suspected crime, and doesn’t allege that Stone was the suspect in it. It also relies on Stone’s own public comments about DMing with Guccifer 2.0 rather than materials already obtained from the account, just the first of an insane number of instances where Stone’s comments to the press formed the basis for probable cause.

September 11, 2017: Stone’s Hotmail Account

When people DMed Stone, he’d refer them to this Hotmail account for further discussion. This affidavit incorporates DMs to Assange (including the June 10, 2017 one discussing a pardon) obtained with the August 7 warrant. It also describes investigating information to be used in the Republican primary. This warrant extended the timeframe of the Stone investigation back to January 1, 2015.

October 17, 2017: Stone’s Gmail

This warrant builds on emails between Corsi and Stone about getting the WikiLeaks releases — including Stone’s “get to Assange” one — to establish the probable cause to get Stone’s Gmail account. Because Corsi would sometimes discuss Podesta related business via both Stone’s Hotmail and Gmail accounts, Mueller’s team was able to get Stone’s Gmail account. This warrant makes it clear the investigation focused on Corsi and Stone’s evolving attacks against John Podesta (which I’ve covered in real time from early on) from the beginning. It also includes a detail about Malloch — that he made a reference in January 2017 about phishing Podesta — that almost certainly remains in the redacted sections pertaining to Malloch.

*November 6, 2017: WikiLeaks and Assange’s Twitter Accounts

This affidavit uses Assange’s DMs with Stone — including another one about a pardon and migration from the WikiLeaks to the Assange account– as well as his sharing of a password with Don Jr to get Mueller his own copy of the WikiLeaks and Assange Twitter accounts, which the government surely already had. The affidavit includes new details on initial communications between Guccifer 2.0 and WikiLeaks, some of which I laid out here. One detail that’s critical is WikiLeaks asked Guccifer 2.0 for Clinton Foundation documents from early on, meaning WikiLeaks and Trump’s people agreed about what they considered the best possible dirt.

*December 19, 2017: Ted Malloch’s Gmail

In addition to extra details about campaign communications (both between Stone and the campaign, and with Malloch and the campaign), this includes details of Turkish dirt Malloch was offering. It reveals that Stone got RNC credentials for Malloch (where, evidence suggests, Stone had meetings where upcoming releases may have been discussed). In addition, because Stone’s order to Corsi to reach out to Malloch is so important, this affidavit has previously unknown details about those days. The affidavit describes Malloch writing Stone on November 13, 2016 while with Jerome Corsi, a detail that may get redacted in subsequent affidavits.

This warrant included a gag on the provider.

This is the first application that introduces Stone, Corsi, and Malloch at the beginning of each affidavit, a practice that would generally continue (though some of these changes reflect different FBI agents writing the affidavit).

March 14, 2018: Two Apple Accounts used by Stone

In February, Steve Bannon was interviewed for two long days. He was asked questions and shared texts with Stone. This application uses some of what he testified about to justify getting Stone’s Apple accounts. Stone had his iCloud account set to full backup, but later warrants would make clear that he had deleted some of his texts from 2016 and 2017. Stone would later blame Sam Nunberg for revealing that he had claimed to have “dined” with Julian Assange while visiting Los Angeles in early August 2016, but this application began to incorporate that email into boilerplate application language (a footnote on what Nunberg told investigators about this is redacted in later warrants).

This application added wire fraud to Stone’s potential charges; it’s not at all clear why.

*March 27, 2018: Malloch’s person and his baggage

This warrant allowed the FBI to search Malloch as he landed in Logan airport. It incorporated details from Malloch’s Gmail obtained in December and was at least in part an effort to get to his UK-based email.

*May 4, 2018: Mystery Israeli Gmail

Over the course of the year, an Israeli exploited a seeming pre-existing relationship with Jerome Corsi to get close to Stone and through him to Trump. The person appeared to offer Stone dirt to save Trump (this story provides some background on potential players). Stone seems to have been reluctant to meet at multiple times, as when he said, in May 2016, “I am uncomfortable meeting without Jerry,” claimed, in June, “to have been poisoned,” in July, came down “with a nasty cold and too ill to travel,” followed later with, “I have pneumonia and may be hospitalized later today,” claimed, “Matters complicated” in August. When, in early November, they tried again, the Israeli deferred claiming, “HAVING a TIA. Early Stroke. … Blury Virson.” These exchanges never show up in later filings, so it’s quite likely Mueller determined they were nothing (or at least, that Stone and Corsi had done nothing wrong) after obtaining the emails. Alternately, a redaction in the affidavit may suggest the Israeli in question got referred and some kind of investigation is ongoing. This warrant included a gag on the provider.

*July 12, 2018: Jerome Corsi’s CSC Holdings, Windstream, and Apple accounts (second version)

This adds language about Russian hacking after the initial compromise (including the September hack of the AWS server). It includes 7 paragraphs of language from after the election that is redacted, possibly because it remains under investigation. This Stone filing describes four of those paragraphs as pertaining to Corsi taking credit for optimizing the Podesta release and Malloch introducing Corsi to Assange after the election (see this post). Some of the redactions (probably the Malloch introduction) repeats the “phishing Podesta” quip. This warrant included a gag on the provider. It limited the scope of the warrant to June 15 through November 10, 2016 and included only CFAA and conspiracy in the crimes being investigated.

July 27, 2018: Roger Stone’s OpSec emails

This warrant obtains the search histories for 3 Gmail accounts Roger Stone set up, possibly for OpSec purposes. They include:

Target Account 1 created on July 28, 2016 and used until July 5, 2017
Target Account 2 created on October 26, 2016 and used until August 8, 2017
Swash Buckler Account created on June 27, 2016 and used to communicate via Craigslist ads

Between May 17, 2016 and June 15, 2016, the affidavit suggests, Stone may have conducted Google searches for DCLeaks and Guccifer (which could be 1 or 2) prior to the publication of the Guccifer 2.0 blog. The FBI connected them to Stone via the IP addresses he used to access Twitter and Facebook, something they would continue to investigate. The affidavit also reveals that Stone deleted the search history for a different Google account between January 18 and July 23, 2016.

August 2, 2018: Roger Stone marketing Facebook accounts

This warrant gets three of Stone’s Facebook accounts, two of which include advertisements pertaining to WikiLeaks or Russia (the description of the third is redacted). Stone used this warrant when signaling to his co-conspirators what was in his warrants, so redacted details are available here. The biggest redaction for an ongoing investigation pertains to whether Corsi and Stone affected the release of the Podesta emails and Malloch offering to set Corsi up with Assange after the election.

August 3, 2018: Renewed warrants for Apple, Hotmail, and Gmail

Partly because the way Stone worked the press and aired the threats he had made against Randy Credico, it became clear he was tampering or comparing notes with witnesses (also including Jerome Corsi, Michael Caputo, and Andrew Miller, as well as one other witness that Stone hired a private investigator to investigate). That gave Mueller the excuse to get new warrants on Stone’s main email and text accounts to get those conversations. This request expanded the focus to include Credico and others (the names of the others are redacted but are likely those with whom Stone was trying to tamper). This warrant also adds obstruction and witness tampering to the crimes being investigated.

August 8: Warrants for a Gmail and Twitter account Stone used for social media campaigns (Twitter)

On May 18, 2018, Mueller’s team interviewed John Kakanis about work he did for Stone during the campaign. He described how Stone conducted social media campaigns — including materials relating to WikiLeaks and the Russian investigation — which both of these accounts played a role in.

August 20, 2018: Warrant for Stone’s cell site information from June 15 to November 15, 2016

Citing the searches probably made by Stone for Guccifer and dcleaks information before those accounts were made public, the government obtained cell site information for the period from the day that the Guccifer 2.0 account first started to a day the week after the election. The affidavit also explained wanting to know if Stone was with the Trump campaign at various times and where he was in Los Angeles when he told Sam Nunberg he had dined with Assange. Note, this affidavit suggests Stone did a Google search on “Guccifer” on June 15, 2016 before the site went up.

*August 20, 2018: Warrant for Guccifer 2.0’s second email account

The same day the government got a warrant to find out where Stone had been when during the election, they got a renewed warrant for one of the email accounts associated with the Guccifer 2.0 site. They had previously gotten everything from that email account in “approximately” August 2016, and then gotten headers for any emails sent in “approximately” September 2017. Getting the full content would give it additional details on any activity with the account between the original warrant — August 2016 — and the final login on October 18, 2016, as well as any email traffic subsequent to that. The stated purpose for obtaining this information was to “assist in identifying additional means by which Guccifer 2.0 shared stolen documents with WikiLeaks and others.” Patrick Myers, an FBI agent located in Pittsburgh (and therefore presumably someone more closely involved in the GRU investigation) obtained this warrant. This warrant included a gag on the provider. Parts of this warrant invoke 18 USC 951 — agent of a foreign power charges — in addition to the other crimes under investigation.

*August 28, 2018: Warrant for Stone’s Falo Memo Tio Facebook account

August 28, 2018: Warrant for Stone’s Falo Memo Gmail account

This incorporates details about Stone’s Facebook accounts used to push the hack-and-leak, found in the earlier August Facebook warrants. It seeks to obtain an old Stone Facebook account that got advertising traffic right before the election. These were Stone-specific warrants that was not turned over in discovery, suggesting it returned nothing pertaining to his prosecution. The Facebook warrant, but not the Gmail one, included a gag on the provider; it also was not included in the warrants provided to Stone in discovery.

August 28, 2018: Warrant for Stone’s rogerstone@mail account

This email account–and the fact that he had been using it to tell his cover story about WikiLeaks–showed up in his Gmail account.

*September 24, 2018: Warrant for Stone’s Liquid Web server

This was a server Stone used to encrypt and back up his data in case the government seized his computers. It was not provided to Stone in discovery so may not have revealed any interesting information. This is the first of these affidavits written by Patrick Myers, an FBI agent located in Pittsburgh.

*September 26, 2018: Mystery Twitter Account

*September 27, 2018: Mystery Facebook and Instagram Accounts

*September 27, 2018: Mystery Microsoft include Skype

*September 27, 2018: Mystery Google

On September 26 and 27, Mueller’s team obtained a bunch of new warrants. All were obtained by Myers, the Pittsburgh FBI agent. All included gags on the provider. Most entirely redact the description of why the FBI needed the accounts, suggesting these investigations are ongoing. They also invoke 951 and FARA in the sealing request.

*September 27, 2018: Mystery Twitter Accounts 2

Like the other warrants obtained on September 27, the explanation for targeting these Twitter accounts is sealed. Like them, Myers obtained the warrant. Like those, it includes a request for sealing that lists 18 USC 951 — acting as an unregistered foreign agent — and FARA. Unlike the other warrants from that day, the justification for sealing this one explains that “It does not appear that Stone is fully aware of the full scope of the ongoing FBI investigation.”

*September 27, 2018: Mystery Apple ends in R

Then there’s another odd September 27 warrant application. Like the other warrants obtained on September 27, Myers wrote the affidavit for this one, and it included a gag. Unlike the others, however, the explanation for targeting this account is not entirely redacted. The affidavit explains that,

On August 17, 2016, someone (Charles Ortel?) introduced Stone and R
Between that introduction and November 3, 2016, Stone and R were in contact 60 times
On October 7, R and Stone spoke during the time between when WaPo alerted him to the Access Hollywood Video and the time it dropped
On October 10, R and Stone probably met for pizza on the Upper East Side
On October 12, Stone claimed that he had met his intermediary, who traveled back and forth to London, on October 10

The list of information targeted includes an additional name, probably that of Charles Ortel.

*October 5, 2018: Mystery Multiple Googles

Like the September 27 warrants, the explanation for targeting these accounts remains entirely redacted. Like them, the affidavit was written by Myers and sealed under a Kyle Freeny request. Unlike those, however, this one does not list 951 and FARA in the request to seal. This affidavit also does not include the contacts with “R” in the narrative about October 7, suggesting that lead may have fizzled.

January 24, 2019: Stone’s NY property

January 24, 2019: Stone’s FL property

January 24, 2019: Stone’s FL office

February 13, 2019: Three of Stone’s devices

The warrants for the searches in conjunction with Stone’s arrest on January 24 are fairly similar (one agent wrote the one in NY, another did the two in FL), except for the descriptions of the premises, facilitated by how much media Stone has done at these locations.

The affidavits themselves largely track the indictment, though showing where the government had sourced the evidence that ultimately got introduced at evidence at trial. The affidavits add people named in the indictment — Rick Gates, Steve Bannon, and Erik Prince (whose description is redacted) — premised on the import of proving that Stone had lied about telling these people about his purported link to WikiLeaks. As compared to the earlier warrants, these affidavits have a closer focus on the release (and reliance, exclusively, on the Crowdstrike and GRU indictment attribution, which is something Stone litigated and which I may return to).

These warrants make it clear that one of the things the government was doing was searching Stone’s homes for all his electronic devices in hopes of getting texts from 2016 to 2017 he deleted and his encrypted communications, which include:

WhatsApp, downloaded on October 5, 2016 to talk to Erik Prince
Signal and ProtonMail downloaded on August 18, 2016; Stone used Signal to talk to Margaret Kunstler
Wickr downloaded on August 5, 2017

Update: One detail I forgot to add about the 2019 search warrants: They explain that Stone responded to a grand jury subpoena in November 2018 asking for the texts he had with Credico, after he told the press — specifically, Chuck Ross, for a credulous story that spun Stone’s like — that his attorney had them. It’s one of the most hilarious ways that Stone’s blathering to the press hurt him.

Update: One more detail about the 2019 search warrants. The FBI was specifically looking for a “file booklet” recording a meeting Stone had with Trump at Trump Tower during the 2016 election.

60. On or about May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone but was not formally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redacted] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Stone carried a “file booklet” with him. Stone told [redacted] the file booklet was important and no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

61. On or about December 3,2018, law enforcement conducted an interview of an individual (“Person 2”) who previously had a professional relationship with a reporter who provided Person 2 with information about Stone. The reporter relayed to Person 2 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

Republicans OUTRAGED That National Security Threat Was Treated Like National Security Threat

April 30, 2020/47 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

I’m in the middle of a very deep dive into the Roger Stone files — which show parts of the investigation remain ongoing — so I’m just going to note two developments that will ensure that two of Trump’s criminals avoid prison.

First, Stone has filed for an appeal of Amy Berman Jackson’s order denying him a new trial. Normally, his appeal would be so weak that he’d be required to report while the appeal is heard. But even in normal circumstances, the Bureau of Prison takes a while to assign new prisoners. And in the case of a non-violent 67-year old like Stone, I imagine BOP will wait to make an assignment until their COVID problem abates. They have enough problems with all the vulnerable prisoners in their COVID death traps now, they aren’t in a big rush to put more in there. [Update: Per Ali Dukakis, BOP has indeed told Stone he won’t have to report right away.]

Meanwhile, Sidney Powell has succeeded wildly with her ploy to undermine the prosecution of Mike Flynn in the press, getting both the NYT and WaPo to present her case with little context. Last week and yesterday she got a released a bunch of documents that the government turned over as part of Jeffrey Jensen’s second-guessing of the prosecution. Those files show:

There was a discussion about halting an ongoing investigation into Mike Flynn Jr after his dad pled guilty, but there were no promises made (if there had been, it would add two more lies to the sworn lies Mike Flynn told). The emails make it clear that Covington believed the threat of investigation was real.
In advance of the interview of Mike Flynn, the FBI discussed how to handle an investigation into why the National Security Advisor had called up Russia and told them not to worry about the punishment for their interference in our election. They brainstormed how to respond to a bunch of questions he didn’t end up asking. They had been planning to give him a warning about false statements; they did not give that warning. They had discussed showing him the transcript that showed he lied; they did not do that.

Neither of those things are very interesting. The first shows the opposite of what Sidney Powell has claimed (that is, no promises about Jr were made). The second shows that they discussed how to handle a sensitive interview before it happened; we knew that. In addition, because those discussions ultimately didn’t govern the investigation, they would not have been pertinent to the interview.

The thing the frothy right is excited about is that Bill Pristap took notes reflecting a discussion what would happen given all the evidence that the National Security Advisor had called up Russia and told them not to worry about the punishment for their interference. The question was whether they wanted to get him to admit his wrongdoing, in which case (they assumed) he’d be fired, or whether he would lie in which case they might have to prosecute him.

The frothy right believes this is proof that Flynn was ambushed in a perjury [false statements] trap, which I guess means they now agree Flynn lied his ass off.

Somewhere, the circumstances have gotten missed. Not only did the FBI discover that Mike Flynn had called up a hostile foreign government and told them not to worry about being punished for tampering in our election. But it was also already public that Mike Flynn may have been secretly working for Turkey while he was claiming to represent Trump’s national security interests. Flynn would go on to testify, under oath and before a grand jury, that indeed, he had been knowingly pursuing a secret deal with Turkey at the time he sat in on Trump’s first national security briefing. The entire time, he testified, he knew that he was really working for Turkey even though he and his firm went to some efforts to hide that fact.

The FBI might be excused for believing that Flynn would be treated according to one of two ways: firing or prosecution. Because they had Flynn on tape calling up a country that had just attacked our own and told them not to worry about being punished. And they had good reason to believe he was still hiding details about having worked for a frenemy government during a period he retained security clearance. In a sane world, when there’s clear evidence the National Security Advisor has done those things, firing or prosecution are the most obvious options.

In Trump’s world — in the world of the entire Republican party, it seems — those aren’t the only two options. In Trump’s world, it is totally natural to keep someone in charge of the entire country’s national security even after he had called up a country that had just attacked us and said no big deal while actively hiding his relationship with another foreign country.

And that is why Mike Flynn likely won’t ever go to prison: because in Trump’s world, the guy who helps out the country that just attacked us is a hero, not a national security threat.

Update: Here’s the next installment of stuff that Powell claims is damning but which proves her conspiracy theories wrong. It shows that on January 4, 2017, FBI was literally in the process of closing the investigation into Flynn (proving they didn’t set him up and assessed him accurately) when they discovered that he had called up Russia and undermined sanctions.