As Predicted, Billy Barr Bolloxed the Mike Flynn Prosecution

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While Van Grack has withdrawn from all Flynn-related cases before Emmet Sullivan, he has not yet withdrawn from two other open cases he’s on, and he signed his withdrawal FARA Chief.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

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

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

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

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

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

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:

  1. Stone’s Liquid Web server storing old communications
  2. A Twitter account obtained for redacted reasons
  3. Multiple Twitter accounts obtained for redacted reasons
  4. Multiple Facebook and Instagram accounts obtained for redacted reasons
  5. Multiple Microsoft and Skype accounts obtained for redacted reasons
  6. Multiple Google accounts obtained for redacted reasons
  7. 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
  8. 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

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.

Cross Filings: NSD Figures Out How Woods Procedures Are Supposed to Work

JustSecurity has an odd panel on FISA yesterday reviewing the DOJ IG Memo showing that Carter Page’s FISA applications were actually better than average with respect to compliance with Woods Procedures. It includes Andrew McCabe (who signed the last, most problematic, Carter Page application) and Mary McCord (who was involved in the review process for three of the applications, and even told McCabe they needed more information on Christopher Steele before the first one), but it doesn’t disclose their roles in the process. It also doesn’t include defense attorneys among its experts, who might provide more context about problems identified with FISA long before the Page investigation.

I’m particularly interested in McCord’s comments. She likens this to what happened in the wake of Brady v Maryland, and then again in the wake of Ted Stevens’ trial, as prosecutors came to a more proactive view on discovery (she doesn’t explain how prosecutors fucked up so badly on the Stevens case if any cultural change had really happened).

While I applaud McCord for taking a more skeptical view of the Page surveillance at several points (as described in the DOJ IG Report), her focus on Brady and her confidence in cultural change is misplaced, in my opinion.

As bmaz would and has been screaming, Brady isn’t actually the standard here. Franks is. He has argued that the affidavits targeting Page would never have reached the standard under Franks, and thus if Page were treated like any other defendant (of course, he was never charged), these affidavits would have passed muster.

I would respond to bmaz that you’d never even get to a Franks hearing because no defendant has ever gotten review of their application. Now that Ric Grenell has declassified the bulk of Carter Page’s applications, it should be far easier to declassify applications going forward. Liza Goitein included providing review to defendants among her recommendations for reforms next month, but none of the other panelists did.

But all the panelists seem to have missed something that happened at the same time as the memo was released. As I noted in my own review of the MAM, NSD (which McCord led for a key period during which Page was surveilled) has been doing their reviews in such a way as to make the Woods Procedures useless. They were giving FBI Agents four weeks advance notice before conducting a review, which meant they never did what DOJ IG did — see whether the FISA file had the paperwork that under the Woods Procedure it should have.

Before any of these reviews happen, the field offices are told which applications will be reviewed, which gives the case agents a chance to pull together the documentary support for the application.

Thus, prior to the FBI CDC or NSD OI review, field offices are given advance notification of which FISA application(s) will be reviewed and are expected to compile documentary evidence to support the relevant FISA.

If the Woods Procedures were being followed, it should never be the case that the FBI needs to compile documentary evidence before the review; the entire point of it is it ensure the documentary evidence is in the file before any application gets submitted. Once you discover that all the FBI and OI reviews get advance notice, you’re not really reviewing Woods Procedures, it seems to me, you’re reviewing paperwork accuracy.

[snip]

To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file). That might actually be a better way of identifying where there might be other kinds of problems with the application.

It turns out, on the same day that DOJ IG released their MAM, NSD submitted a FISA filing updating James Boasberg on what they’re doing with reviews.

The panel deals with the DOJ IG Management Advisory Memorandum showing that Carter Page’s applications were in no way unique, with regards to Woods Procedure violations; in fact, his application had fewer Woods Procedure violations, on average, than the 29 applications DOJ IG reviewed. Much of the discussion focuses on

The results (rightly) look really stinky for the FBI. But in fact, the MAM revealed that NSD — McCord’s old department, which thus far had (possibly for jurisdictional reasons) avoided most criticism for FISA — was conducting reviews that made the Woods Files largely useless as an oversight tool (and therefore as a guarantee of accuracy). That’s because Office of Intelligence has been giving FBI Field Offices four weeks advance warning about which files they’re going to review.

DOJ IG describes its finding that these results aren’t being used in better fashion.

(4) FBI and NSD officials we interviewed indicated to us that there were no efforts by the FBI to use existing FBI and NSD oversight mechanisms to perform comprehensive, strategic assessments of the efficacy of the Woods Procedures or FISA accuracy, to include identifying the need for enhancements to training and improvements in the process, or increased accountability measures.

At least given their description, however, I think they’ve found something else. They’ve confirmed that — contrary to DOJ’s description to FISC that,

OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application.

OI is actually only doing the latter part, measuring the accuracy of the facts in an applicable FISA application. To check the accuracy of the Woods Files, they should with no notice obtain a subset of them, as DOJ IG just did, and see whether the claims in the report are documented in the Woods File, and only after that do their onsite reviews (with notice, to see if there was documentation somewhere that had not been included in the file).

As I lay out in a timeline below, DOJ was submitting a response to the FISA Court on April 3, even as DOJ IG was releasing its MAM. In that response (therefore three days before my post), they said they’d stop giving advance notice for the accuracy reviews, which will make Woods Procedures newly useful.

NSD has determined that commencing with accuracy reviews starting after September 30, 2020, it will not inform the FBI field offices undergoing NSD oversight reviews which applications will be subjected to accuracy reviews in advance of those reviews. This date is subject to current operational limitations the coronavirus outbreak is imposing. NSD would not apply this change in practice to accuracy reviews conducted in response to a request to use FISA information in a criminal proceeding, given the need to identify particular information from particular collections that is subject to use. NSD also would not apply this change in practice to completeness reviews ( discussed further below); because of the pre-review coordination that is contemplated for those reviews.

NSD will expect that the relevant FBI field offices have ready, upon NSD’s arrival, the accuracy sub-files for the most recent applications for all FISAs seeking electronic surveillance or physical search. NSD will then, on its arrival, inform the FBI field office of the application(s) that will be subject to an accuracy review. If the case will also be subject to a completeness review, pre-coordination, as detailed below, will be necessary. The Government assesses that implementing this change in practice will encourage case agents in all FISA matters to be more vigilant about applying the accuracy procedures in their day-to-day work.

In addition, although NSD’s accuracy reviews allow NSD to assess individual compliance with the accuracy procedures, NSD’s historical practice has been to allow agents to obtain documentation during a review that may be missing from the accuracy sub-file. NSD only assesses the errors or omissions identified once the agent has been given the opportunity to gather any additional required documentation. While the Government believes that, in order to appropriately assess the accuracy of an application’s content, it should continue to allow agents to gather additional documentation during the accuracy review, it assesses that this historical practice has not allowed for the evaluation of how effective agents have been at complying with the requirement to maintain an accuracy sub-file, complete with all required documentation.

As a result, NSD will tally and report as a part of its accuracy review process all facts for which any documentation, or appropriate documentation, was not a part of the accuracy sub-file at the time the accuracy review commenced. Agents will still be given the opportunity to gather such documentation during or after the accuracy review, so that NSD can assess if the application contains any inaccuracies with respect to the application’s content. NSD will include these additional findings in its summaries of accuracy reviews (discussed herein) and also will include such findings in its biannual reports to the Court regarding its accuracy and completeness review findings. NSD assesses that by implementing this additional metric, it will encourage case agents to be more vigilant about adhering to the FBI’s accuracy· procedures.

It’s rare that a bureaucracy of any sort — much less government, much less part of government that pertains to national security — recognizes that its paperwork isn’t serving the function it is supposed to. But here, even though DOJ IG didn’t make this observation, NSD figured it out and committed to change their processes.

There are more comments about NSD’s review processes that deserve more attention. For example, I said that NSD should start reporting the results of its accuracy (and the new completeness) reviews in its Semiannual FISA Reports (which currently focus only on 702). As part of a seeming effort to rebut Amicus David Kris’ comment that DOJ has the resources to do oversight right, the filing suggested that other oversight obligations take up too much time to dedicate more time to traditional FISA reviews (though NSD did increase attorney resources in OI’s oversight section by 50%).

(U) OI’s Oversight Section, which is responsible for oversight and compliance relating to the IC’s implementation of FISA authorities, currently has approximately 20 attorneys and must rely on assistance from the Operations Section of OI to staff the existing accuracy reviews. Moreover, OI’s Oversight Section conducts oversight of other FISA authorities, including at other IC agencies, and conducts oversight of FBI’s implementation of its Attorney General’s Guidelines for Domestic FBI Operations. The latter involves conducting onsite National Security Reviews at approximately 15 FBI field offices annually. In addition, OI’s oversight and compliance responsibilities with respect to the IC’s implementation of Section 702 consumes substantial OI resources. 14 Furthermore, the Oversight Section fulfills statutorily-required reporting obligations to Congress on behalf of the Department. These reports, which describe, in detail, the Government’s use of FISA authorities and all identified compliance incidents, run hundreds of pages in the aggregate and most must be completed twice a year. As the Court is aware, the Oversight Section also investigates and reports to the Court all FISA compliance incidents involving IC agencies. Additionally, among other responsibilities, the Oversight Section prepares quarterly reports for the Court to inform the Court about certain Section 702 compliance incidents and provide updates on previously reported Section 702 compliance incidents. The Oversight Section also conducts onsite reviews at multiple IC agencies.

It seems like this process could be more streamlined, though. It also seems like you don’t need attorneys to do all these reviews. Accuracy and completeness are not legal issues, they’re reading issues.

Ultimately, the way to ensure that smart changes by NSD actually have the desired effect is to give any defendant against whom FISA information is used in prosecution review of his or her FISA file. But it remarkable to see that McCord’s successor, John Demers, is actually making the kinds of changes that could make the Woods Files function the way they’ve been supposed to for two decades.

Timeline

  • March 23: FBI Associate Deputy Director of FBI reponds to draft MAM
  • March 27: Associate Deputy Attorney General Brad Weinsheimer responds to draft MAM
  • March 30: DOJ IG completes a Management Advisory Memorandum on it efforts to clean up FISA
  • March 31: DOJ IG publicly releases the MAM
  • April 3: James Boasberg orders the government to report whether errors found in the 29 applications that DOJ IG reviewed are material
  • April 3: DOJ National Security Division submits Response to March 5 order incorporating changes to Woods Procedure reviews
  • April 6: I point out that NSD should change how they do Woods Procedure reviews

Judge Sullivan Already Ruled that Mike Flynn’s David Ignatius Story Doesn’t Help Him

When I noted that the John Durham investigation has been investigating the first 10 months of the Russian investigation for 11 months now (and seemed on track to continue for another four months at least), I didn’t include a number of details laid out in this government filing and this NYT story.

The government filing makes it clear that St. Louis US Attorney continues his second-guess review of the investigation into Mike Flynn, three months after he began.

The NYT story describes that, in addition to the DC AUSA on Durham’s team and two prosecutors from Connecticut, he’s also got an SDNY prosecutor.

Mr. Durham is relying on a team of prosecutors, including Nora R. Dannehy and Neeraj Patel, from Connecticut, as well as former and current F.B.I. agents to complete his investigation. Anthony Scarpelli, a top prosecutor from the U.S. attorney’s office in Washington, was detailed to the team along with a federal prosecutor from Manhattan, Andrew DeFilippis.

Two former F.B.I. agents, Timothy Fuhrman and Jack Eckenrode, are also assisting. An F.B.I. agent who oversaw public corruption in Chicago and served in Ukraine as an assistant legal attaché, Peter Angelini, has also joined Mr. Durham’s team.

Arguably, Durham has more staffers than the investigation he is investigating had.

The NYT story also provides further evidence that Trump’s flunkies have been able to get Durham to chase down each of their grievances on command. Durham has been investigating something lifted out of a Sidney Powell filing — one already rejected by Emmet Sullivan — regarding the source of the leak to David Ignatius which led Mike Flynn to start lying, at first to the press.

Last year, Mr. Durham also started examining the 2017 column by The Post’s David Ignatius, said a person familiar with that line questioning. Mr. Ignatius revealed that Mr. Flynn had spoken in late 2016 with Sergey I. Kislyak, the Russian ambassador to the United States at the time, as the Obama administration was about to place sanctions on Russia for its election sabotage.

Mr. Ignatius noted Mr. Flynn’s close contacts with the Russians and suggested that because Mr. Flynn was apparently conducting foreign policy while another administration was in power, he might have violated the Logan Act. The law is an obscure statute that bars private citizens from interfering with diplomatic relations between the United States and foreign governments and is widely considered to be essentially defunct.

The next month, Mr. Flynn resigned after lying to the vice president and other White House officials about the call with Mr. Kislyak. He eventually pleaded guilty to lying to the F.B.I. about the nature of his discussions with Mr. Kislyak but later backtracked, asking a federal judge to allow him to withdraw his guilty plea.

Powell asked for this last September as part of an elaborate claim that James Clapper — who, of course, fired Mike Flynn for cause — had it in for Flynn and therefore set him up to be ambushed by the FBI once he became National Security Advisor. In addition to asking for records of calls between Clapper and Ignatius, she asked for all records pertaining to Ignatius.

All FBI 302s or any notes of interviews of David Ignatius or any other reporter regarding the publication of information concerning Mr. Flynn and/or the reporters’ contacts with James Clapper, Andrew McCabe, John Brennan, Michael Kortan, or anyone in the FBI, DNI, DOD, DOJ, or CIA regarding Mr. Flynn.

[snip]

All FBI 302s, notes, memoranda of James Clapper regarding Mr. Flynn, and the cell phone and home phone records of Mr. Clapper and David Ignatius between December 5, 2016, and February 24, 2017.

The NYT reported that KT McFarland also was attributing the dramatically varied stories she told to the FBI to the Ignatius story.

Mr. Ignatius’s column “set off a chain of events that helped lead to the Russia probe,” K.T. McFarland, the former deputy national security adviser to Mr. Trump, wrote in her recent book, “Revolution: Trump, Washington and ‘We the People.’”

Mr. Durham has reviewed Ms. McFarland’s interviews with F.B.I. investigators in other inquiries, examining what she has said about Mr. Ignatius’s reporting and asked other witnesses about it, according to person familiar with elements of the investigation. She revised her answers to questions from investigators for the special counsel, Robert S. Mueller III, on elements of Mr. Flynn’s talks with Mr. Kislyak but has accused the investigators of trying to ensnare her in “perjury trap.”

Mr. Durham has not questioned Ms. McFarland.

Let’s run with this for a moment, shall we? In addition to criticizing the Obama Administration for not responding more aggressively to the Russian operation and asserting that we needed to find out whether the Russians had fed Christopher Steele disinformation (both assertions Republicans have made), Ignatius revealed that a Senior Government Official told him that Flynn had had multiple conversations with Sergei Kislyak in advance of Russia declining to respond to Obama’s sanctions.

Question 3: What discussions has the Trump team had with Russian officials about future relations? Trump said Wednesday that his relationship with President Vladimir Putin is “an asset, not a liability.” Fair enough, but until he’s president, Trump needs to let Obama manage U.S.-Russia policy.

Retired Lt. Gen. Michael T. Flynn, Trump’s choice for national security adviser, cultivates close Russian contacts. He has appeared on Russia Today and received a speaking fee from the cable network, which was described in last week’s unclassified intelligence briefing on Russian hacking as “the Kremlin’s principal international propaganda outlet.”

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

If the Trump team’s contacts helped discourage the Russians from a counter-retaliation, maybe that’s a good thing. But we ought to know the facts.

Note, contrary to a lot of claims about this story, there’s no indication that the content of the conversation between Flynn and Kislyak got shared (and even just toll records showing the conversations did happen would be enough for a spooked up reporter like Ignatius to ask the question). In addition, the term, “government official,” is often used to hide the identity of members of Congress. It in no way is limited to someone like Clapper.

Nevertheless, let’s assume for the moment Flynn’s allegations are correct and Clapper was the guy who tipped off Ignatius to Flynn’s calls with Kislyak.

Clapper — and virtually all the other people who were part of discussions about this call early on — were Original Classification Authorities. He had just as much authority to declassify the existence of the Flynn calls as Ric Grenell had to declassify the Carter Page applications (arguably more so, since Clapper had obtained and sustained a security clearance on his own right for four decades, with none of the questionable conflicts Grenell has that remain unexamined). Even accepting Flynn’s claim that Clapper did leak the existence of the call, it would not be illegal. There’s an argument that says the intelligence community, with Clapper’s experience that Flynn was unsuited to run DIA and burgeoning questions about what Flynn had done for a frenemy government while serving as Trump’s foreign policy advisor, had to do something about the fact that the NSA designee had secretly worked for another government during the election, was still refusing to come clean about that, and had been caught on a wiretap undermining the official policy of the United States and arguing that Russia should face almost no punishment for interfering in the US election.

Trump would say Obama should simply have warned him. Except Obama did warn him, even before all the details of his work for Turkey had come out. And Trump ignored that warning.

Accepting Flynn’s allegation that Clapper did that (solely for the sake of argument), that would be a fairly quick way to figure out whether Flynn did what he did in contravention of Trump’s desires, something that Trump presumably would have wanted to know.

In response to the story, Flynn ordered his subordinates, including McFarland, to tell a series of lies, lies that conflicted with both what the intelligence community and the Russians knew.

UPDATE: The Trump transition team did not respond Thursday night to a request for comment. But two team members called with information Friday morning. A first Trump official confirmed that Flynn had spoken with Kislyak by phone, but said the calls were before sanctions were announced and didn’t cover that topic. This official later added that Flynn’s initial call was to express condolences to Kislyak after the terrorist killing of the Russian ambassador to Ankara Dec. 19, and that Flynn made a second call Dec. 28 to express condolences for the shoot-down of a Russian plane carrying a choir to Syria. In that second call, Flynn also discussed plans for a Trump-Putin conversation sometime after the inauguration. In addition, a second Trump official said the Dec. 28 call included an invitation from Kislyak for a Trump administration official to visit Kazakhstan for a conference in late January.

That’s not a crime, but insanely stupid from a counterintelligence perspective. Then, when the FBI asked him about it (in a situation that would not become public, in which he could simply have said that the Trump Administration wanted to pursue a different strategy, which would make him stupid but probably not criminal), Flynn continued to lie about it. When McFarland was asked details about the events surrounding the call, she claimed to have no memory of details that she would later unforget; that’s what her perjury trap amounts to: she continued to tell a story she knew Flynn had been fired for.

Which is to say, even if Flynn’s suspicions are true, if Clapper told Ignatius about the existence of calls, it would be (for Clapper) a legal way to try to sort out whether someone hiding damning secrets about two foreign governments was about to be put in charge of US national security.

Nothing about doing so would have changed the fact that Flynn was unsurprised by the FBI to be asked about this, was friendly and relaxed when he met with the FBI, knew it was illegal to lie to the FBI, and nevertheless proceeded to tell an easily identifiable lie.

When rejecting Powell’s request for Clapper and Ignatius’ call record in December, Judge Emmet Sullivan pointed out that even if everything she alleged about Clapper was true, that wouldn’t change that her client lied to the FBI.

Request 35 seeks “[a]ll FBI 302s, notes, memoranda of James Clapper regarding Mr. Flynn, and the cell phone and home phone records of Mr. Clapper and David Ignatius between December 5, 2016, and February 24, 2017.” Id. at 7. The government responds—and the Court agrees—that each request is not relevant to Mr. Flynn’s false statements during his January 24, 2017 FBI interview or to his sentencing. Gov’t’s App. A, ECF No. 122-1 at 2-5. Mr. Flynn fails to make out a Brady claim for the requested information regarding any earlier investigations, the circumstances that led to the January 24, 2017 FBI interview, or the events surrounding his prosecution because Mr. Flynn fails to establish the favorability element. Even assuming, arguendo, that the information regarding the circumstances that led to Mr. Flynn’s January 24, 2017 FBI interview, the events surrounding his prosecution, and any earlier investigations were both exculpatory and suppressed, Mr. Flynn bears the burden of showing a reasonable probability of a different outcome. Strickler, 527 U.S. at 291. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682 (“A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”). Mr. Flynn cannot overcome this hurdle.

Mr. Flynn appears to seek this information to: (1) support his claims of government misconduct; and (2) cast doubt on the legal basis for the FBI’s investigation. See Def.’s Reply, ECF No. 133 at 19, 19 n.13, 34-35. Mr. Flynn also asserts, without support, that the Special Counsel’s Office was “manipulating or controlling the press to their advantage to extort the plea.” Def.’s Br., ECF No. 109 at 4. Regardless of Mr. Flynn’s new theories, he pled guilty twice to the crime, and he fails to demonstrate that the disclosure of the requested information would have impacted his decision to plead guilty.

To be sure, Mr. Flynn was aware of the circumstances of the January 24, 2017 interview, and the allegations of misconduct against the FBI officials before he entered his guilty pleas. Sentencing Hr’g Tr., ECF No. 103 at 8-9. Mr. Flynn did not challenge those circumstances, and he stated, under oath, that he was aware that lying to the FBI was a crime. Id. In response to this Court’s questions, Mr. Flynn maintained his guilty plea. Id. at 9-10. None of Mr. Flynn’s arguments demonstrate that prejudice ensued. See Strickler, 527 U.S. at 291. The Court therefore finds that there was no reasonable probability that Mr. Flynn would not have pled guilty had he received the requested information in Requests 1, 3, 4, 11, 17, 21, 25, 28, and 35.

Earlier this month, Covington & Burling provided Flynn’s team with some materials they had overlooked when they transferred his case to Sidney Powell last summer. On Thursday, Covington & Burling gave the government over a hundred pages of declarations from four attorneys defending the competence of the legal advice they gave Flynn. Yesterday, the government provided Flynn reports that Jeffrey Jensen has done on the investigation into Flynn.

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

The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming.

Hours later, Powell filed a supplement to her motion to dismiss Flynn’s case for government misconduct (again, Sullivan has ruled on virtually all of these issues), claiming to show proof that Brandon Van Grack had promised not to prosecute Flynn’s son, but instead providing an email stating, “The government took pains not to give a promise to MTF regarding Michael Jr., so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against whom MTF may one day testify” — that is, to show that Flynn did not have a guarantee. Even if the email said what she claimed, it would be yet more proof that Flynn lied under oath to Sullivan in December 2018 when he said no such promise had been made.

She also claimed the reports from Jensen included,

stunning Brady evidence that proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI. It also defeats any argument that the interview of Mr. Flynn on January 24, 2017 was material to any “investigation.”

Maybe she does have proof the FBI agents fucked up. The NYT reports that someone briefed on them claimed, “the documents indicated that F.B.I. agents did not follow standard procedures as they investigated Mr. Flynn,” which is different than framing Flynn. 

But Powell has made such claims over and over, and each time thus far, the claims have proven to be not only way overblown, but full of embarrassing factual errors.

And unless she can show Sullivan something new, something that changes the fact that Flynn told obvious lies in his original interview with the FBI, he risks not just the original charge, but additional perjury referrals from Sullivan.

Meanwhile, Flynn has rejoined Twitter (he even blocked me finally, after following me for four years!), posting a declaration from January as if it was news. The declaration, along with these new emails, strongly suggests his son was in legal trouble as well.

It would be unwise to underestimate Bill Barr’s ability to interfere with DOJ’s normal processes (precisely the allegation being waged against the FBI). Still, Judge Sullivan still gets a vote, and on some of this stuff, he already voted against it.

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