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

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

Republicans never consider the implications if the Steele dossier is disinformation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Father of the DEA Dragnet Sics It on Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Petitioner also cannot be prosecuted for contempt because there is no evidence of “contumacious intent.” Brown, 454 F.2d at 1007. Even assuming that petitioner had the intent to commit perjury, that would not establish that he had the “inten[t] to obstruct the administration of justice.” Sealed Case, 627 F.3d at 1238. There is no indication that petitioner pleaded guilty and then moved to withdraw his plea as “part of some greater design to interfere with judicial proceedings.” Dunnigan, 507 U.S. at 93. Rather, the record shows that petitioner—like other defendants who enter pleas they later seek to withdraw— pleaded guilty with the intent to resolve the allegations against him on the best terms he thought possible at the time. Doc. 160-23, at 8-9. Our adversarial system treats plea colloquies and later motions to withdraw as an accepted part of normal judicial proceedings. Fed. R. Crim. P. 11(b), (d). An intent to acquiesce in the prosecution’s charges, even falsely, is not an intent to interfere with judicial proceedings themselves for purposes of contempt under Section 401(1).

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

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

Appointing an amicus is unprecedented

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

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

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

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

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

Billy Barr argues against Billy Barr

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

This brief does so in two ways.

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

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

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

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

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

There are several problems with this.

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

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

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

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

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

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

[snip]

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

Barr reiterated this point in his interview with Catherine Herridge.

Does Judge Sullivan have a say?

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

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

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

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

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

In Opposing Mandamus, Judge Sullivan Notes Schrodinger’s Materiality

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

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

December 1, 2017

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

[snip]

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

December 18, 2018

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

[snip]

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

January 7, 2020

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

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

May 7, 2020

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

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

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

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

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

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

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

Mueller Soft-Pedaled the Mike Flynn Exchanges with Sergey Kislyak about Israel

Last Friday night, John Ratcliffe released some of the transcripts of calls between Mike Flynn and Sergey Kislyak (Ric Grenell said ODNI did not have all the transcripts, and Flynn’s 302 reflects a call made on Christmas not included in this batch, though it’s unclear if there are other missing transcripts).

A lot of frothy right wingers have claimed that Robert Mueller misrepresented the call because, while Kislyak raised the sanctions against FSB and GRU officers using the word “sanctions,” Flynn instead focused on the expulsions that were part of President Obama’s sanctions on Russia responding to election interference and other Russian actions. Flynn’s Statement of the Offense treated Obama’s entire Executive Order as the “sanctions” raised in the call, so it’s a nonsensical complaint, and Flynn claimed he did not remember discussing expulsions to the FBI.

Indeed, as I have noted, Mueller actually left out the critical detail that, in Flynn’s December 31 call with Kislyak, he made it clear “the boss is aware” of details Kislyak raised in the December 29 call, making it far more likely Flynn and everyone else lied about Trump’s role in Flynn’s actions.

Plus, on the other lies which Flynn pled guilty to — the ones that virtually all Flynn’s defenders like to ignore — Mueller withheld even more damning information. When describing Flynn’s lies about his conversations with Kislyak on a UN vote over Egypt’s move to declare Israel’s settlements illegal, Mueller suggested that Flynn’s December 22 call to Kislyak was unsuccessful. He asked that Russia vote against or delay the vote, and — as the Statement of the Offense implies — Russia said they would not vote against the resolution.

a. On or about December 21, 2016, Egypt submitted a resolution to the United Nations Security Council on the issue of Israeli settlements.

b. On or about December 22, 2016, a very senior member of the Presidential Transition Team directly FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

c. On or about December 22, 2016, FLYNN contacted the Russian Ambassador about the pending vote. FLYNN informed the Russian Ambassador about the incoming administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution.

d. On or about December 23, 2016, FLYNN again spoke with the Russian Ambassador, who informed FLYNN that if it came to a vote, Russia would not vote against the resolution.

We can’t compare Mueller’s description of that December 22 call with what really transpired, because Ric Grenell chose not to declassify even the one-line description of what happened, much less release the transcripts.

As far as the December 23 call, it is true Kislyak warned Flynn that if sanctioning Israel came up for a vote, Russia would support the resolution.

Kislyak: … We cannot vote, uh, other than to support it.

Flynn: Okay.

Kislyak: That is something, uh, that is, uh, part of the position that we have developed, with the, um, countries in the region for a long period of time.

But what Mueller left out is that, in the December 23 follow-up, Kislyak explained that he had consulted with the “highest level in Russia,” where it was decided that Russia would help Trump delay any vote.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia. Secondly, uh, uh, here we are pointing [PH], uh, taking into account, uh, entirely your, uh, arguments.

Flynn: Yes.

Kislyak: To raise a proposal or an idea of continued consultations in New York. We will do it.

Flynn: Okay.

Kislyak: Uh, to give time for working out something, uh, that would be, would be, uh, less controversial. Flynn: Okay. That. .. That’s good news.

[snip]

Kislyak: But, uh, responding to your, uh, telephone call and our conversations, we will try to help, uh, to~ uh~ postpone the vote and to allow for consultations. Flynn: Okay. That’s .. that’s good.

In his January 24 interview, Flynn outright denied both that he had raised the issue with Kislyak and also that Kislyak had described a Russian response — the response that, the transcript shows, reflects a decision, “at the highest level in Russia,” to help the Trump administration in a way that would be less controversial.

The interviewing agents asked FLYNN if he made any comment to KISLYAK about voting in a certain manner, or slowing down the vote, or if KISLYAK described any Russian response to a request by FLYNN. FLYNN answered, “No.”

What Mueller kept totally secret, however, was that the first excuse Kislyak gave for his call on December 29 was to inform Flynn — and through him the President Elect — that Russia had decided they weren’t going to support Obama’s “principles for the Middle East.”

KISLYAK: Oh, General, thank you very much for calling me back. I was trying to reach you for quite a while because I have several, uh, issues to raise with you —

FLYNN: Uh huh.

KISLYAK: – rather to inform you. If you’ll allow me, one by one.

FLYNN: Please.

KISLYAK: One, uh, since you were interested in the issue of the Middle East and you called me on that issue

FLYNN: Uh huh.

KISL YAK: We wanted to convey to you and through you to the President Elect that we had uh significant reservations about the idea of adopting now the principles for the Middle East, uh, that our American colleagues are pushing for. So we are not going to support it to — in the quartet, or in the Security Council. And we have conveyed to our American colleagues. So in the spirit of full transparency I was asked to inform you as well.

FLYNN: Okay.

KfSLYAK: So it’s not something that we – Russia – are going to support.

FLYNN: Okay that’s good.

Having delivered on Flynn’s request, Kislyak then moves on to say that, since Flynn has suggested there will be a change in “Middle East principles,” Russia would like to know what the US will be doing. It’s in that context that Kislyak makes his ask: that the US participate in the Russian/Turkish “peace” discussion in Astana.

KISLYAK: Secondly~ we think it requires some additional work and everybody has to be on board.

FLYNN: Of course, Ambassador, of course. You know it does. You know it does. [Some talking over each other]

KISLYAK: And especially I think taking into account, now that US policy might uh, be changing or not, we want to understand what is going to be your policy when and if we are to implement things that we are working on.

FLYNN: Right.

KISLYAK: So the second point. it’s also on the Middle East, uh, our specialist on the Middle East say that they are very much interested in working with your specialists on these issues and if you’re available – not you personally, but your specialists – are available even before the –

FLYNN: Mmhm.

KlSLYAK: – President Elect is, has his inauguration on the twentieth, for, uh, we are perfectly available. But also, something more specific, we, uh as you might have seen, are trying uh, to help uh, the peace process in Syria. And today we announced, uh, the agreement that with Turkey and others, we are able to uh agree on and to help the Syrian sides to start working on political process. So we are thinking about an event in Astana, the capital of Kazakhstan –

Only after that (and after agreeing to a secure video chat shortly after inauguration), does Flynn raise his ask, that Russia “not uh, allow this administration to box us in” with the sanctions against Russia.

This probably explains the redacted materials in Sally Yates’ 302 about “specific asks” Flynn was making an d a “back and forth” between Flynn and Kislyak.

It also may explain why KT McFarland, at a time when she was still un-remembering the sanctions calls, likened the Israeli calls to Richard Nixon’s efforts to forestall peace in Vietnam for his own personal benefit.

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she heard what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

In any case, this, was not two separate sets of calls, with Flynn failing to sway Russian behavior the first time and succeeding the second. Rather, both times, Kislyak listened to Flynn’s request, relayed it to the “highest level in Russia,” (which can only mean Putin), and twice elicited the behavior that Flynn wanted.

Which means, on top of all the other reasons this was a counterintelligence problem, Flynn had already secretly accrued a debt to Russia, even before Trump got inaugurated.

As recently as May 7, even Bill Barr’s DOJ wanted to keep secret the full extent of Russia’s efforts to deliver whatever Mike Flynn asked for. I guess now, they’re simply going to flaunt how chummy they were with Russia even as the country moved to hold the country accountable for attacking the US.

“The Boss is Aware:” Trump Learned about Mike Flynn’s Conversations with Sergey Kislyak in Real Time

As I noted, John Ratcliffe has released the transcripts of at least some of the Flynn-Kislyak calls (Ric Grenell said that he didn’t have all transcripts, and there are certainly other transcripts, at least setting up the meeting at which Jared Kushner asked for a back channel). As I also noted, from the very beginning, Kislyak set up the calls with Flynn such that Russian and Trump were unified against the Democrats (though the common enemy referenced in the calls was ISIS).

But that’s not the most damning part of the transcripts.

As I have repeatedly noted, the Mueller Report is very coy about whether Mueller obtained evidence that Flynn spoke directly with Trump about his calls with Kislyak, going so far as to withhold details of the timeline of events on December 29 (Mueller cites Flynn’s call records, but we know from the Stone trial that he also got Trump’s call records, at least for the campaign period). According to the narrative Mueller laid out, the first time that Flynn claimed to remember discussing the conversation with Trump was on January 3, 2017.

On January 3, 2017, Flynn saw the President-Elect in person and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling the President-Elect about the substance of his calls with Kislyak. 102

Flynn even claimed that he and Trump didn’t speak about the substance of the calls until February 6.

The week of February 6, Flynn had a one-on-one conversation with the President in the Oval Office about the negative media coverage of his contacts with Kislyak. I93 Flynn recalled that the President was upset and asked him for information on the conversations. 194 Flynn listed the specific dates on which he remembered speaking with Kislyak, but the President corrected one of the dates he listed. I95 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions.I96

Flynn’s claimed uncertainty about whether he had discussed the sanctions call with Trump was a key part of Mueller’s analysis of whether Trump fired Jim Comey because Flynn had derogatory information on him.

As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge. In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak. Flynn told McFarland about the substance of his calls with Kislyak and said they may have made a difference in Russia’s response, and Flynn recalled talking to Bannon in early January 2017 about how they had successfully “stopped the train on Russia’s response” to the sanctions. It would have been reasonable for Flynn to have wanted the President to know of his communications with Kislyak because Kislyak told Flynn his request had been received at the highest levels in Russia and that Russia had chosen not to retaliate in response to the request, and the President was pleased by the Russian response, calling it a ” [g]reat move.” And the President never said publicly or internally that Flynn had lied to him about the calls with Kislyak.

But McFarland did not recall providing the President-Elect with Flynn’s read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

But the transcript of Flynn’s December 31, 2016 call makes it clear that Mueller had proof that Flynn had talked with Trump about the Kislyak call, because Flynn told Kislyak that the “boss is aware” of the secure video conference that Kislyak wanted to set up immediately after Trump was inaugurated.

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

Flynn might claim that he only told Trump about the video conference and not sanctions (which wouldn’t be remotely credible, given that Flynn was the one who raised the sanctions, not Kislyak). He might claim that any conveyance of the details of the call went to Trump second-hand, perhaps through KT McFarland.

But whatever excuse Flynn would offer (remember, he has been asking for these transcripts since August, so it’s unclear how much of their content John Eisenberg, Reince Priebus, and Mike Pence shared with him in real time), his assurances to Kislyak, offered on December 31, that Trump knew of the request Kislyak had made on the December 29 call makes it quite clear that Flynn knew Trump had learned of the substance of the call via some means within 48 hours of that call.

And then told Mueller he had no idea whether he had shared that information.

From before Day One Mike Flynn Made It Russia and Trump Versus Democrats

John Ratcliffe has released the transcripts of Flynn’s calls with Sergey Kislyak. They’re utterly damning. I’m sure I’ll be writing about them for some time, but this is the key bit. Flynn raised sanctions himself — even interrupted Kislyak to do so.

And he pitched sanctions against the Russians not just for tampering in our election, but also for abusing our diplomats in Russia, as an attack on Trump.

KISL YAK: Is by security video. Secure video line.

FLYNN: Yeah. Yeah, yeah. I understand. Okay, um, okay. Listen, uh, a couple of things. Number one, what I would ask you guys to do – and make sure you, make sure that you convey this, okay? – do not, do not uh, allow this administration to box us in, right now, okay? Um –

KISLYAK: We have conveyed it. And –

FLYNN: Yeah.

KISL YAK: It’s, uh, ifs uh, very very specifically and transparently, openly.

FLYNN: So, you know, depending on, depending on what uh, actions they take over this current issue of the cyber stuff, you know, where they’re looking like they’re gonna, they’re gonna dismiss some number of Russians out of the country, I understand all that and I understand that~that, you know, the information that they have and all that, but what I would ask Russia to do is to not – is – is – if anything – because I know you have to have some sort of action – to, to only make it reciprocal. Make it reciprocal. Don’t – don’t make it- don’t go any further than you have to. Because I don’t want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?

KISLYAK: I understand what you’re saying~ but you know, you might appreciate the sentiments that are raging now in Moscow.

Then, when Kislyak calls back to tell Flynn that they didn’t respond because of his ask, Kislyak emphasizes that, asserting that the sanctions were targeted at Trump as well as Russia (note, it’s possible Russia intercepted the calls between Trump Transition officials where they said just this, because they weren’t using secure lines precisely to avoid detection by the US government).

KIS LY AK: And I just wanted to tel I you that we found that these actions have targeted not only against Russia, but also against the president elect.

FLYNN: yeah, yeah

KISL YAK: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight. And also …

Thus, from the very start of this Administration, Flynn willingly set up the relationship with Russia such that Russia and Trump’s Administration were allied against Democrats — and anyone else who believed it was wrong for Russia to tamper in our election.

Trey Gowdy Argues There’s No Way Mike Flynn Would Read Anything Trey Gowdy Wrote

If I had had to imagine an amicus brief from frothy right wingers to submit in the Mike Flynn case, one that Judge Emmet Sullivan could permit to prove he’s being equitable, but one that highlights what a shitshow the Mike Flynn argument is and therefore would likely backfire, it would look like this one. That Trey Gowdy —  who, while still in Congress, was the Republican most active in writing the House Intelligence Committee Report on Russiasigned on  along with Ken Starr and Margot Cleveland — just makes it even more special.

The amicus does three things.

It attempts to dismiss an argument the Watergate prosecutors made in an amicus brief, which argued that there’s a DC Circuit precedent clearly permitting a judge to reject a motion Rule 48 motion when the motion has no basis in fact.

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

The frothy amici basically argue that this precedent is old and so doesn’t count anymore (even though they rely heavily on a decision, Rinaldi, from just four years later, and elsewhere on another precedent from 50 years earlier).

Amici who oppose the granting of the Government’s Rule 48 motion rely heavily on the D.C. Circuit’s 1973 decision in Ammidown. 7 But that decision did not address the profound separation of powers issue implicated by its theory of judicial power. In the almost half century since, the Supreme Court—and the D.C. Circuit—have substantially developed the separation of powers jurisprudence. Although Ammidown has not been expressly overruled, it has been superseded by subsequent teaching, and it can no longer reasonably be considered as the law of the Circuit.

The amicus brief also argues that Flynn’s perjury (of which the brief considers only his plea allocutions, and not his grand jury testimony), which led to Judge Sullivan tying up his court for two years, didn’t affect Sullivan’s performance of his duty as a judge and therefore can’t constitute contempt of court.

Gen. Flynn’s statements in connection with his plea plainly did not obstruct this Court in the performance of its duty. Thus, they simply cannot constitute contempt of court under long-standing precedent. The Court should therefore not embark on any contempt proceeding against Gen. Flynn.

But the most remarkable argument the amici make — remember, Trey Gowdy is on this brief — pertains to the “new” information that DOJ used to justify its flip-flop on Flynn’s prosecution.

In the amici presentation of “facts,” they mention, but don’t get into, the details of Flynn’s second allocution.

The case proceeded to a sentencing hearing on December 18, 2018, at which the Court made a further plea inquiry, and ultimately continued the case for sentencing at a later date.

They then quote the government’s irrelevant (to this legal argument) claim that Flynn didn’t have exculpatory information before he pled guilty

The Government concluded that Gen Flynn had entered his plea “without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him. Mr. Flynn stipulated to the essential element of materiality without cause to dispute it insofar as it concerned not his course of conduct but rather that of the agency investigating him, and insofar as it has been further illuminated by new information in discovery.” (Id. at 19.)

This new information had not been previously disclosed to Gen. Flynn, his counsel, or the Court.

They return to the issue at the end of their brief, basically making an argument (to Judge Sullivan, in a brief that also argues that he doesn’t have discretion to reject a motion to dismiss and doesn’t have the authority to hold Flynn in contempt for lying in his plea allocutions) about Judge Sullivan’s own discretionary standing order on Brady. It lays out the discovery Flynn had gotten under Sullivan’s discretionary order, relying on this government filing, which among other things makes it clear Flynn got a summary of the Mary McCord and Sally Yates 302s submitted as part of the government’s motion to dismiss, and also a summary of an investigation into allegations about the pre-interview meetings at FBI, the notes from which are one of the “new” documents the government presented with its motion to dismiss.

Once this case was reassigned to this Court, it promptly entered its Standing Order, which evidently had a significant effect on the subsequent proceedings. In March 2018, the Government provided to the defense 1,160 pages of documents relating to the alleged false statement to the FBI agents and 21,142 pages relating to alleged false statements in a filing under the Foreign Agents Registration Act (FARA) that was included as relevant conduct in the Statement of Offense. (Id.) In May 2018, the Government provided a draft of the FBI 302 report; summaries of the interviews of four individuals related to the false statement; a summary of a document in which the FBI advised the DOJ that it did not believe that Gen. Flynn was acting as an agent of Russia; a summary of interviews of other officials concerning Gen. Flynn’s conversations with Ambassador Kislyak; and more documents related to the FARA filings. (Id.)

In November 2018, the Government provided the defense a summary of its investigation into whether: (i) the FBI 302 report was altered to strengthen a false statement charge; and (ii) the interviewing agents were pressured to “get” Gen. Flynn. In December 2018, before the original scheduled sentencing, the Government provided the defense with a summary of an interview of another individual related to the alleged false statement. (Id.) [my emphasis]

It then describes details about the Jeffrey Jensen review not included in the government motion to dismiss, leading to an argument that might be viewed as brown-nosing about how good Judge Sullivan’s standing motion for Brady is if it didn’t, along the way, ignore that Sullivan has already ruled this stuff isn’t Brady and even reviewed some of the files (the Mary McCord and Sally Yates 302s) that the amici claim were previously unavailable to anyone, including to Sullivan.

In January 2020, Attorney General Barr directed Jeffrey Jensen, the U.S. Attorney for the Eastern District of Missouri, to review the investigation of Gen. Flynn that the FBI had conducted. (Doc. 180-1.) Mr. Jensen had been an FBI agent for ten years and an Assistant U.S. Attorney for another ten years before becoming the U.S. Attorney. On April 24, 2020, the Government made an initial disclosure of documents that had been obtained and reviewed by Mr. Jensen. (Id.) On April 29, 2020, the Government made a second disclosure of documents. (Doc. 187-1.) On May 5, 2020, the Government made a third disclosure of documents. (Doc. 193-1.) On May 7, 2020, the Government filed its motion to dismiss, and on May 18, 2020, the Government made a fourth disclosure. (Doc. 210-1.)

[snip]

Viewed from a “big picture” perspective, the Government’s motion to dismiss was a product of the Court’s ongoing effort, through its Standing Order, to promote justice by requiring the Government, at all stages of a criminal proceeding, to examine its case and disclose information that may affect a defendant’s guilt or punishment. As such, the Government’s motion is a successful, and just, outcome.

Before it gets there, though, this brief — signed by Trey Gowdy! — claims that there was no way Flynn could have uncovered facts about FBI almost closing the Flynn investigation before DOJ turned it over in recent weeks.

The information which the Government disclosed about the FBI’s conduct of the investigation was within its exclusive possession. There is simply no way that Gen. Flynn could have known or uncovered these facts, which undermined an essential element of the charge against him, without the Government providing them to him. This is the paradigm of why the Constitution requires the Government to disclose such information to the defense. See Brady v. Maryland, 373 U.S. 83 (1963).

Trey Gowdy, as I’ve noted, was the key player behind this March 2018 report, which cites from one of the documents that, a brief signed by Trey Gowdy argues, was totally unavailable to Flynn or anyone else outside of government when he reallocuted his guilty plea in December 2018. Here’s the passage that Trey Gowdy helped write in 2018, giving Flynn nine months notice (even ignoring the congressional staffers providing it directly) that they kept the investigation into Flynn open because of his calls to Kislyak.

Director Comey testified that he authorized the closure of the CI investigation into General Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak.

In short, the best argument the frothy right can make in a brief signed by Trey Gowdy is that poor General Flynn must be let free because he shouldn’t be expected to read anything that Trey Gowdy has a hand in writing.

Stealing Elections: The Underlying Assumption behind Billy Barr’s Flip-Flop on the Materiality of Flynn’s Lies

Marty Lederman has a very long piece assessing DOJ’s motion to dismiss the Mike Flynn case, one that pulls together a lot of the public record (including details, like about DOJ’s January 24, 2017 sentencing memorandum, that haven’t gotten attention other than at this site). As a very sober assessment that criticizes the FBI but lays out the national security implications, it’s well worth reading.

Even after he wades through all those details, though, Lederman argues that the important takeaway isn’t whether Flynn will do prison time or not (he notes, as I have, that Flynn will be pardoned in any case), but instead what this incident says about Bill Barr.

Unfortunately, just as with the public’s anticipation of and reaction to the Mueller investigation, the inordinate focus on whether a particular individual committed one or another offense under the U.S. criminal code is diverting attention from where it ought to be, on much more significant matters of constitutional governance.

Most importantly, as I’ll explain, what’s most alarming and troubling about the DOJ brief itself is not that it asks the court for leave to dismiss the charge against Flynn, but that it depends upon the rather shocking view of the Attorney General and the Acting U.S. Attorney for the District of Columbia that Flynn’s underlying conduct in 2016 and 2017 was unobjectionable and that therefore there wasn’t a “legitimate” basis for the FBI to be investigating Flynn’s secret communications with the Russian Ambassador at all, even though Russia had just completed an elaborate effort to manipulate the American electoral process in order to help elect Donald Trump.

[snip]

There is, however, at least one other possibility—one that’s much more troubling but that doesn’t involve prosecutorial “bad faith,” as such:  It could be, as Charlie Savage recently put it, that Attorney General Barr sincerely “considers to be illegitimate the government’s counterintelligence effort to understand the scope of Russian election interference in 2016 and any links to the Trump campaign.”  That would explain the astounding assertions in the DOJ motion that Flynn’s calls with Kislyak “were entirely appropriate on their face” and that there wasn’t any “legitimate” basis for a counterintelligence investigation, even after Flynn lied to the Vice-President-Elect about the content of the calls.  Indeed, in a recent interview, Attorney General Barr asserted that the FBI investigation was “based on a perfectly legitimate and appropriate call [Flynn] made as a member of the transition.”  According to Barr, there “was nothing wrong with it whatever. In fact, it was laudable.”

If that’s the reason Barr insisted on moving to dismiss the Flynn charge, it raises a far, far greater problem than whether Michael Flynn is or isn’t convicted of a criminal offense.  Such a view reflects an alarming disregard for the constitutional difference between an incumbent President and the incoming administration.  It ignores the harms of engaging in such private diplomacy in secret, without the knowledge of the State Department.  It treats as “laudable” an effort to undermine the incumbent President’s conduct of foreign affairs in real time—and to do so in order to accommodate a hostile nation that had just engaged in a concerted effort to distort the U.S. presidential campaign in order to secure the election of the very President whose agent is engaged in the stealth diplomacy, and where that very President (and/or his agent engaged in the shadow communications) might possibly be in debt to that nation, and/or compromised by it.  It also assumes that the FBI should have turned a blind eye to all this even after several top officials of the new administration made repeated false representations to the public about the new National Security Advisor’s communications with that foreign power, either knowing that the statements were false or, more troubling still, having been assured by Flynn that the communications were very different from what the Bureau knew them to be.  If the Attorney General of the United States believes all of that conduct was “legitimate,” “appropriate” and “laudable,” and that there wasn’t any “legitimate” basis for investigating it, then how can anyone be confident that the Department of Justice under his stewardship will faithfully fulfill its constitutional responsibilities?

I think Lederman is right: Even more than the question of whether Flynn does time is the question of what it means that Barr intervened and — based off no new evidence — weighed in to say that it was laudable that Flynn called up Russia and undermined the punishment Obama imposed after Russia tampered in the election and illegitimate for FBI to investigate why he did so (predictably, the motion to dismiss doesn’t deal with Flynn’s work for Turkey).

But I would go further.

Lederman is rightly offended that Bill Barr has just given sanction to undermining the constitutional transition between one administration and another.

But that’s not all that the FBI was investigating, nor is it what the record suggests Barr is sanctioning.

In his post, Lederman suggests the FBI didn’t take any of the logical steps to chase down Flynn as a counterintelligence concern.

As I hoped I’ve shown above, that was precisely correct—the principal objective of any interview with Flynn should have been to get to the bottom of the potential counterintelligence threat.  FBI Director Comey himself later testified that he sent his agents to interview Flynn on January 24, 2017 at least in part because there was a “disconnect” between what the Vice President was saying in public and what Flynn had in fact said to Kislyak, and Comey wanted his agents “to sit before [Flynn] and say ‘what is the deal?’”  And FBI Counterintelligence Chief Bill Priestap apparently agreed.  His notes from that morning state his view that “if [Flynn] initially lies, then we present him [redacted] and he admits it, document for DOJ, and let them decide how to address it.”

As far as the available public record shows, however, the agents who interviewed Flynn didn’t take that route.  Instead, it appears that Bureau leadership apparently decided before the interview that if Flynn didn’t confirm to the agents what they knew he had said to Kislyak, “they would not confront him or talk him through it.”  (The quote is from a later 302 report of an interview with one of the agents, Peter Strzok.  Unfortunately, the reasons for that decision appear to be redacted from Strzok’s 302 Report.  Nor is it clear who made this tactical decision.)  In the interview itself, Flynn said he couldn’t recall any discussion with Kislyak of the sanctions and expulsions, even after the agents used his own words from those conversations in order to jog his memory (and/or to subtly signal to him that they had a recording).  And then the agents left it at that.  They didn’t confront Flynn with evidence of what he had said to Kislyak; didn’t ask him why he said such things; about who else, if anyone, he discussed the call with, before or after; why he had disregarded the Obama administration’s pointed request that he not have such conversations; why he had lied to Pence, et al.; etc.  In other words, they didn’t do any of the things one might expect investigators to do if their goal was to get to the bottom of the case, and assess the scope and degree of any possible counterintelligence threat, during that interview.  Instead, all they appeared to accomplish was to confirm that Flynn was committed to lying about his calls with Kislyak.

This is the one part of Lederman’s post that I believe is wrong.

On January 24, 2017, the FBI would have learned that Flynn was going to continue to lie about his discussion of sanctions. But the evidence would still have supported an interpretation that Flynn had gone rogue, that he — someone who had been paid directly by Russia in the previous year and met directly with Putin — had decided to undermine all of US policy in response to the Russian operation all by himself.

That interpretation would change.

Moreover, the record shows the FBI did take next steps, but next steps that served to get at the key purpose for Flynn’s lies, to hide that he had consulted with Mar-a-Lago before calling Kislyak. As I have laid out here, the FBI did some call records analysis (on Flynn’s private phone, because he hadn’t used his government issue BlackBerry). That would have disclosed a bunch of calls to Mar-a-Lago beforehand, calls that were clearly inconsistent with Flynn’s claims to the FBI. Ultimately, FBI obtained the devices that first Flynn, and then other members of the Transition had used. Those would show emails explicitly discussing strategy on sanctions. Between getting those communications and getting Flynn to flip, FBI would eventually have gotten KT McFarland to tell her version of the story.

After a year of work, the FBI would have substantiated that Flynn’s lies served to hide his consultation with Mar-a-Lago. Mueller never got him or McFarland or Steve Bannon to admit that Trump weighed in ahead of time (and Mueller was deliberately coy about whether he has phone records suggesting he did).

Ultimately, though, Mueller was never able to answer a key question: whether Trump had ordered Flynn to do what he did.

Although transition officials at Mara-Lago had some concern about possible Russian reactions to the sanctions, the investigation did not identify evidence that the President-Elect asked Flynn to make any request to Kislyak.

As Lederman himself notes, Trump blew off questions about his role in all of this when asked.

Although it’s therefore almost certain Trump knew at least roughly what Flynn planned to say to Kislyak, the Mueller investigation did not find any evidence that Trump directed Flynn to say anything about sanctions.  (Mueller asked Trump specifically about these incidents (see Questions V(b)-(e)), but in his written responses the President … simply ignored those questions, as though they hadn’t even been asked.)  Several weeks later, then-President Trump said in a press conference that although he didn’t direct Flynn to discuss sanctions with Kislyak, “it certainly would have been okay with me if he did.  I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.”

And Lederman notes the part of the January sentencing memo that describes how central a question sanctions were to Mueller’s investigation.

In a sentencing memorandum it filed in January 2020, the Department of Justice explained that after Flynn’s calls with Kislyak and the false stories that Pence and others were purveying, the FBI “did not know the totality of what had occurred between the defendant and the Russians,” and that “determining the extent of [Flynn’s] actions, why [he] took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.”  This was particularly true because “[a]ny effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia.”

What he doesn’t consider, however (though he comes awfully close), is the aspect of Mueller’s investigation that considered whether there was a quid pro quo.

In particular, the investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future. Based on the available information, the investigation did not establish such coordination.

That is, Mueller wasn’t just investigating whether Trump was friendly to Russia because he was friendly to Russia or whether he was friendly to Russia out of tacit acknowledgement that Russia had helped him.

Mueller was also investigating (and parts of DOJ may still be investigating) whether Trump entered into one or more quid pro quos in which he accepted help getting elected in exchange for implicit or explicit pay-offs later.

Whether or not Mueller proved a quid pro quo (and there are aspects of this that remain ongoing, or recently were ongoing before Barr’s latest efforts to undermine them), that was an obvious, legitimate topic for investigation after a campaign advisor got approached about Russia’s help in April and after Trump asked Russia for help in the same press appearance where he offered to recognize Russia’s annexation of Crimea.

That’s what FBI’s investigation ultimately became. That’s the question the answer to which Flynn’s lies about consulting with Mar-a-Lago have obscured. That is the part of the investigation that Flynn’s lies had a material impact on.

Bill Barr is saying it was illegitimate for the FBI to investigate whether the incoming President engaged in a quid pro quo to get elected and therefore Flynn’s lies that hid key details needed to answer that question are not material to any investigation that FBI should be engaging in.

And he’s saying it just before campaign season begins again in earnest.

On the Two ECs Opening the Investigation into Mike Flynn

A number of people have pointed me to this opinion piece, written by former top FBI guy, Kevin Brock, arguing that the Electronic Communication opening the Crossfire Hurricane investigation proves that the Trump campaign was investigated without justification. It bases that claim on several complaints:

  • It doesn’t fit what Brock deems to be a normal EC because:
    • It doesn’t have a “To” line
    • Peter Strzok both opened and approved it
    • It redacts the names of people who, Brock says, should be more senior than Strzok
  • It opened (Brock says) as a FARA investigation, without explaining why subjects of the investigation are subjects
  • Strzok justified the investigation by saying it served to determine if Trump’s people wittingly or unwittingly were working with Russia, without justifying a FARA investigation

From there, Brock claims that because there’s no articulation tying the evidence to those being investigated, the EC is proof the entire investigation was made up.

Ultimately, there was no attempt by Strzok to articulate any factors that address the elements of FARA. He couldn’t, because there are none. Instead, there was a weak attempt to allege some kind of cooperation with Russians by unknown individuals affiliated with the Trump campaign, again, with no supporting facts listed.

What this FBI document clearly establishes is that Crossfire Hurricane was an illicit, made-up investigation lacking a shred of justifying predication, sprung from the mind of someone who despised Donald Trump, and then blessed by inexperienced leadership at the highest levels who harbored their own now well-established biases.

The piece is more worthwhile than most pieces on the investigation. But there are several problems with it.

First, Brock doesn’t mention what is apparent when reading this document in context (but is not if you’re unfamiliar with the context and ignore the redactions). When you combine the document with what Bill Priestap says the Australian tip included, the document makes clear that George Papadopoulos specifically tied the campaign’s own plans to win the election by using dirt on Hillary Clinton to Russia’s offer to help in the process of using dirt on Hillary to win the election.

Papadopoulos said Trump would win because they had dirt on Hillary and then suggested Russia could “assist this process” — that is, using dirt to win the election — by anonymously releasing information damaging to Hillary.

The “this process” hidden behind the redaction is “using dirt to win the election.” The antecedent of “this process” must be (because that description does not and could not appear anywhere else), using dirt to win the election.

It is, perhaps, a subtle thing. But in context as the FBI received it, Papadopoulos tied Russia anonymously dropping dirt on Hillary to the centrality of dirt on Hillary in the Trump campaign’s plan to win.

Of course, to know that, you’d have to read the DOJ IG Report on Carter Page, which explains how the investigation got opened and specifically addresses some of the items that Brock raises. For example, the report cites multiple people putting the Australian tip in context with the ongoing investigation into the DNC hacks.

According to Priestap, he authorized opening the Crossfire Hurricane counterintelligence investigation on July 31, 2016, based upon these discussions. He told us that the FFG information was provided by a trusted source-the FFGand he therefore felt it “wise to open an investigation to look into” whether someone associated with the Trump campaign may have accepted the reported offer from the Russians. Priestap also told us that the combination of the FFG information and the FBI’s ongoing cyber intrusion investigation of the DNC hacks created a counterintelligence concern that the FBI was “obligated” to investigate.

The report also describes several people involved in the decision whose names remain redacted — the Intel Section Chief and the OGC Unit Chief — who might be the redacted names (as well as Bill Priestap).

It describes why Strzok, and not any case agent, opened the investigation.

After Priestap authorized the opening of Crossfire Hurricane, Strzok, with input from the OGC Unit Chief, drafted and approved the opening EC. 175 Strzok told us that the case agent normally drafts the opening EC for an investigation, but that Strzok did so for Crossfire Hurricane because a case agent was not yet assigned and there was an immediate need to travel to the European city to interview the FFG officials who had met with Papadopoulos.

It explains why the EC didn’t have a subject or subjects.

On July 31, 2016, the FBI opened a full counterintelligence investigation under the code name Crossfire Hurricane “to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.” As the predicating information did not indicate a specific individual, the opening EC did not include a specific subject or subjects. 

Finally, it explains how, with counterintelligence investigations, you might name crimes even when the investigation was into a national security threat.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections.

Note, too, that DOJ IG, after reviewing all this, said the predication of the investigation fell within guidelines for Full Investigations. John Durham — Bill Barr’s designated investigator — did not, but he did say that the predication met the standards of a Preliminary Investigation (which would not have changed any available tools). So in making the argument about this redacted document, Brock is disagreeing not only with DOJ’s IG, but also with Barr’s designated investigator, both of whom have access to unredacted documents.

What’s stranger still is that this piece, dated May 27, doesn’t bother to discuss the opening EC for the Flynn investigation, which was made public on May 7. Consulting it shows, among other things, that DOJ releases documents to Judicial Watch with fewer redactions than they release in their own cases.

It shows that that EC, also, did not include a “To” line.

But it also shows how the individual EC did some of the things Brock claimed had not been done with regards to articulating the investigation, including describing why Flynn was investigated.

The FBI is opening a full investigation based on the articulable factual basis that reasonably indicates that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security. The FBI is predicating the investigation on predetermined criteria set forth by the CROSSFIRE HURRICANE investigative team based on an assessment of reliable lead information received during the course of the investigation. Specifically, CR has been cited as an adviser to the Trump team on foreign policy issues February 2016; he has ties to various state-affiliated entities of the Russian Federation, as reported by open source information; and he traveled to Russia in December 2015, as reported by open source information. Additionally, CR has an active TS/SCI clearance.

The details describe how Flynn accepted multiple paid gigs with Russian quasi-state entities, including a junket to Moscow in December 2015 paid for by one of Russia’s propaganda outlets where he sat next to Vladimir Putin, then months later joined the Trump campaign, all while renewing his security clearance. The Crossfire Hurricane EC laid out the question: Whom would Russia have told they planned to help Trump win the election by dropping dirt on Hillary by providing their own dirt? And the hypothesis in the Crossfire Razor EC is that they might have told that to the guy Russia paid to meet Putin months before he joined the Trump campaign.

In addition, Flynn’s individual EC explains what the FARA designation on the original one, which Brock found so suspicious, means.

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

That is, the goal wasn’t just busting Flynn in a FARA trap. It also — as virtually every Flynn defender likes to ignore — aimed to make sure he wasn’t secretly working for Russia (which is what it looks like when the incoming National Security Advisor calls up Russia and undermines the punishment imposed on Russia for tampering in the election and then lies about doing so to others in the Administration).

Most importantly, however, one of the goals was to see whether Russia was somehow controlling Flynn. It wasn’t (just) about Flynn. It was about potential harm to the US.

For some reason, Flynn’s defenders never want to talk about the damage it does to the United States when someone conducting an attack on the country gives one side advance notice of it.

There may still be reasons to question how the paperwork in this case was handled — though DOJ IG did not, in this specific case. And I find Brock’s questions more useful than the typical Flynn apology that directly contradicts the public record. But if you’re going to question the paperwork, at least consult all of the paperwork that has been made public.

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