The Flynn Sentencing: What Comes Next?

As Zoe Tillman describes, the Mike Flynn sentencing hearing today was even more unpredictable than I imagined (and I anticipated it would bring some surprises). Judge Emmet Sullivan (after apparently putting Flynn under oath so these questions, too, could be charged for perjury) asked him several times whether — given the sentencing memorandum he submitted suggesting extenuating circumstances for his lies to the FBI (but not to DOJ’s FARA team) — he believed he had lied, whether he knew that was a crime, whether he wanted to plead guilty.

Throughout the proceedings, US District Judge Emmet Sullivan repeatedly asked Flynn if he wanted to go ahead with sentencing, given his lawyers’ comments questioning the conduct of the FBI officials and agents who handled his questioning in January 2017, and the fact that Flynn might not be finished cooperating.

Having established that — and offered Flynn several opportunities to delay sentencing, he laid into him, even going so far as to ask prosecutor Brandon Van Grack if Mueller had considered charing Flynn with treason.

“Arguably, that undermines everything this flag over here stands for,” Sullivan said, gesturing to an American flag displayed behind his chair. “Arguably you sold your country out.”

Sullivan continued: “I’m not hiding my disgust, my disdain for this criminal offense.”

Flynn at that point took up the judge’s offer of additional time to consult with his lawyers. Before the judge took a break, however, he asked special counsel prosecutor Brandon Van Grack if Flynn could have been charged with treason for his conversations with now-former Russian ambassador Sergey Kislyak in December 2016, after then-president Barack Obama had entered sanctions against Russia for interfering in the election.

That’s when Flynn asked Sullivan for a break. When he and his lawyers returned, they took Sullivan up on his offer for a delay, and suggested a status hearing in March.

But it’s not entirely clear how that will help — aside from giving Sullivan time to set aside the visceral disgust he showed for Flynn today.

Here’s are some possible scenarios:

Flynn Finds Something Else to Cooperate On

This is the ostensible reason to delay the sentencing, so that Flynn can cooperate some more, in an attempt to convince Sullivan he should avoid prison time.

When Sullivan asked Van Grack whether Flynn was done cooperating, and the prosecutor replied that it remained a possibility. That stops short of even promising that Flynn will be called to testify in the trial against his former partner, Bijan Kian. As I noted yesterday, the indictment seemed to be built to avoid that, and as an unindicted co-conspirator there may be problems if Flynn does testify, to say nothing of his limited credibility as a sworn liar. Moreover, Flynn’s substantial cooperation in getting prosecutors to this point was already baked into today’s sentencing. It’s hard to imagine what Flynn could do to improve on that.

Which leaves the possibility that Flynn knows of something — some other crime, whether by Trump and his circle, or some of his other pals — that he can offer to federal prosecutors. It is possible that, seeing an angry judge talking about treason and imagining prison, Flynn unforgot somethings he knows, so took his lawyer aside and said there was another area he might be willing to share with prosecutors.

Trump Risks Clemency

A more likely motivation, for Flynn, is the hope that Trump will decide to give Flynn the pardon he floated over a year ago. If Flynn delays long enough, Trump might get into a place where it’ll be politically feasible for him to commute any sentence Flynn makes.

Maybe he, like the nutters who occupy the same bubble he does, that after a series of false hoaxes over the last year, someone will finally discover something that will provide the excuse Trump needs.

Or maybe he’s just delaying in hopes that one of the long shot challenges to Mueller’s authority — or perhaps his firing — will get him off his charges.

All of these, of course, would amount to a play for time, in the hopes that his fortune will improve.

Kelner Falls on His Sword

After they came back from the break, Robert Kelner said something suggesting that Sullivan shouldn’t penalize Flynn in his sentencing for something his attorney (that is, he, Kelner) had written in a sentencing memo.

It’s unclear to me whether Kelner was referencing the stunt suggesting there were extenuating circumstances explaining why Flynn lied or a reference he made to David Petraeus (Sullivan explicitly suggested he thought Petraeus got an easy deal). It’s equally unclear to me how much of Sullivan’s tirade today stemmed from Flynn’s actual conduct (and the sweet deal he himself got) or the stunt.

Particularly if it’s the former, then it’s possible to win some favor from Sullivan by having Kelner even more publicly fall on his sword, claiming (the claim would almost certainly be utter bullshit) that it was his idea to try that stunt. That might provide Flynn an opportunity to present a new, chastened sentencing memo in March, such that Sullivan would be more amicable to giving him probation.

There’s a tension underlying this: One reason Flynn wanted to get sentenced early was so he could return to sleazy influence peddling so he could pay his legal bills. Now he’s looking at still more legal bills for a stunt that he probably demanded.

The Unfolding Turkish and Russian Stories Change the Context

Judge Sullivan (or his clerks) have read, at a minimum, the following:

  • An unredacted copy of Flynn’s 302
  • An unredacted copy of the McCabe memo
  • A partly unredacted copy of the Strzok 302 (some parts of it are not relevant to this case, so may not have been shared)
  • An unredacted copy of Flynn’s cooperation addendum
  • An ex parte version of the Flynn cooperation addendum including details Flynn doesn’t know
  • Information, in some form, on the Kian indictment

And there are still some sealed items in Flynn’s docket.

So Sullivan should have a pretty complete idea of what cooperation Flynn has given.

That said, it’s not impossible that as both the Kian prosecution (I suspect he’ll plead) and the Russian investigation proceeds, additional information will become known — or at least public — to change the context of Flynn’s actions. Maybe, if the crimes of his business partner end up far worse than we know, Flynn’s treatment for the foreign agent charge won’t appear as easy. Maybe, if people next to Trump get charged with serious crimes, the value of Flynn’s cooperation will make him look less like a sell-out.

But the opposite could happen, as well. As his co-conspirators attempt to save themselves, they may be able to present credible evidence about stuff Flynn has thus far suppressed (if not from Mueller, from the public).

And what if Trump ultimately quits in disgrace? Sure, he could pardon his co-conspirators on the way out (though I doubt he’d do that if there weren’t a benefit to him). But if Trump leaves in disgrace, Flynn’s continued good relations with Trump may only make him look like more of a sell-out.

The point is, short of finding other criminals to flip on or finding a way to remove Mueller’s authority, it’s not clear how Flynn’s fortune can improve over the next three months, and there are definitely ways his fortune could go south.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Black Holes in the Mike Flynn 302: The Back Channel Discussion May Be Most Sensitive Investigative Detail

In this post, I talked about what we can deduce from the unredacted parts of the Mike Flynn 302 released last night. It shows that Flynn’s lies served to hide that he consulted very closely with Mar-a-Lago — almost certainly with Trump — and even denied parts of the transcript that showed him quoting directly from KT McFarland’s related instructions.

While we’re waiting on Flynn’s sentence, I’d like to look at the substantive redactions, as a way of assessing what Mueller thinks must remain secret. I’ll just be looking at the actual report, not the bureaucratic redactions (which hide things like the case number and classification levels for the individual paragraphs).

The first redaction comes in a paragraph recording what Flynn claimed were his past communications with Sergei Kislyak, in which he explains that he called Kislyak in the wake of the death of GRU head Igor Sergun in January 2016.

It’s possible the redaction includes an admission that he and Kislyak discussed policy — ascribing a a policy call to a condolence one is precisely what he did with the December 29 calls to Kislyak, after all. Note, too, the way Flynn distanced that conversation from Trump (he probably figured out that that call, like his much later one, would have been picked up). It’d be especially interesting if the redaction pertained to Flynn’s claim that Sergun died in Lebanon; Russia’s military issued a panicked denial today that Sergun died there (they say he died of heart problems in Russia).

The second redaction hides Flynn’s discussion of his trip to Russia in 2015, on a trip ultimately paid by RT, where he sat at a table with Vladimir Putin and Jill Stein.

This actually might be hidden for counterintelligence reasons — to hide the circumstances of how Russians tried to sidle up to Flynn by flying him in for the gala. That said, the details are likely part of Mueller’s understanding of how Russia cultivated Trump and those close to him.

The next redaction hides Flynn’s description of the outreach to the Russians he was making.

I suspect this provides more detail about the outreach Flynn made on Syria. He portrays it as pertaining to terrorism, not paying back Russia. The hidden passage may also address timing which we now know actually started during the election (which would mean this redacted passage could hide yet another Flynn lie).

Note, it’s actually fairly interesting that Flynn worked exclusively via Kislyak, but none of that is likely to be redacted.

The first paragraph about the December 29 conversation hides two details: what appears to be a request that Flynn set up the conference call that ultimately took place on January 28, and an inquiry on whether the US would send observers to … something.

This redaction is one I expect we’ll get follow-up reporting on, as Kislyak was making significant asks at that time.

Update: TC suggests the reference to monitors might pertain to evacuation of Aleppo. It’s definitely a possibility. Update: The observer comment pertained to Syria peace talks. h/t JM

The longest redaction in the 302 may be the one that hides Flynn’s description of the December 1 meeting with himself and Jared Kushner (Don Jr came in at some point — the meeting was conducted in his office) where Jared asked for a back channel of communications.

I find the extent of this redaction … to be bad news for Jared Kushner (and Don Jr if he attended more of the meeting than he claims). This is another meeting that FBI had details about (or later would discover them), from when Kislyak called home and reported on the back channel request. A significant purpose for this redaction must be to hide what Flynn said from the other co-conspirators.

Also note: if this meeting is the only other communication with Kislyak that Flynn admitted to, he may have also hid communications he had during the election (in which case those communications would have also been considered sensitive).

These two words are the only ones redacted in the entire three-paragraph passage describing Flynn’s lies about the vote on Israeli settlements.

The redactions here — at least the second one — are for diplomatic reasons.

I believe the second one hides the word “Egyptians;” I’m not sure if the first is long enough to be “Israel.” It may be “Trump,” in which case it’d be another point where Flynn hid how much he coordinated with Trump on all this.

In any case, the fact that Mueller redacted so little of this discussion suggests that the effort to help Israel is not a core part of his investigation (or if it is, Jared, who ordered Flynn to try to delay the vote on Israel, has already locked in his testimony on it).

It’s unclear what this redaction, in the first paragraph as the FBI Agents circled back to Flynn’s lies about the sanctions call, hides. It may be another reference to the discussion about sending observers somewhere.

That’s the final redaction, though. The rest — which details how the Agents quoted directly from the transcript (including the bit that was itself a quote of KT McFarland) is all unsealed, so presumably no longer sensitive from an investigative standpoint.

All of which is to say that the most sensitive investigative detail in Flynn’s 302 — the thing the government cared most about hiding — is what Flynn said about that December 1 meeting where Jared asked to set up a back channel of communication with Russia.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Dossier Is Not the Measure of the Trump-Russia Conspiracy

It seems like the whole world has decided to measure Trump’s conspiracy with Russia not from the available evidence, but based on whether the Steele dossier correctly predicted all the incriminating evidence we now have before us.

The trend started with NPR. According to them (or, at least, NPR’s Phillip Ewing doing a summary without first getting command of the facts), if Michael Cohen didn’t coordinate a Tower-for-sanctions-relief deal from Prague, then such a deal didn’t happen. That’s the logic of a column dismissing the implications of the recent Cohen allocution showing that when Don Jr took a meeting offering dirt on Hillary as “part of Russia and its government’s support for Mr. Trump,” he knew his family stood to make hundreds of millions if they stayed on Vladimir Putin’s good side.

Item: Cohen ostensibly played a key role in the version of events told by the infamous, partly unverified Russia dossier. He denied that strongly to Congress. He also has admitted lying to Congress and submitted an important new version of other events.

But that new story didn’t include a trip to Prague, as described in the dossier. Nor did Cohen discuss that in his interview on Friday on ABC News. Could the trip, or a trip, still be substantiated? Yes, maybe — but if it happened, would a man go to prison for three years without anyone having mentioned it?

As I noted, Mueller laid out the following in the unredacted summary of Cohen’s cooperation.

Consider this passage in the Mueller Cohen sentencing memo.

The defendant’s false statements obscured the fact that the Moscow Project was a lucrative business opportunity that sought, and likely required, the assistance of the Russian government. If the project was completed, the Company could have received hundreds of millions of dollars from Russian sources in licensing fees and other revenues. The fact that Cohen continued to work on the project and discuss it with Individual 1 well into the campaign was material to the ongoing congressional and SCO investigations, particularly because it occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election. Similarly, it was material that Cohen, during the campaign, had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia.

Cohen’s lies, aside from attempting to short circuit the parallel Russian investigations, hid the following facts:

  • Trump Organization stood to earn “hundreds of millions of dollars from Russian sources” if the Trump Tower deal went through.
  • Cohen’s work on the deal continued “well into the campaign” even as the Russian government made “sustained efforts … to interfere in the U.S. presidential election.”
  • The project “likely required[] the assistance of the Russian government.”
  • “Cohen [during May 2016] had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia [Dmitri Peskov].”

But because the new Cohen details (along with the fact that he booked tickets for St. Petersburg the day of the June 9 meeting, only to cancel after the Russian hack of the DNC became public) didn’t happen in Prague, it’s proof, according to NPR, that there is no collusion. [Note, NPR has revised this lead and added an editors note labeling this piece as analysis, not news.]

Political and legal danger for President Trump may be sharpening by the day, but the case that his campaign might have conspired with the Russian attack on the 2016 election looks weaker than ever.

There are other errors in the piece. It claims “Manafort’s lawyers say he gave the government valuable information,” but they actually claimed he didn’t lie (and it doesn’t note that the two sides may have gone back to the drawing board after that public claim). Moreover, the column seems to entirely misunderstand that Manafort’s plea (would have) excused him from the crimes in chief, which is why they weren’t charged. Nor does it acknowledge the details from prosecutors list of lies that implicate alleged GRU associate Konstantin Kilimnik in an ongoing role throughout Trump’s campaign.

Then there’s the NPR complaint that Mike Flynn, after a year of cooperation, is likely to get no prison time. It uses that to debunk a straw man that Flynn was a Russian foreign agent.

Does that sound like the attitude they would take with someone who had been serving as a Russian factotum and who had been serving as a foreign agent from inside the White House as national security adviser, steps away from the Oval Office?

That’s never been the claim (though the Russians sure seemed like they were cultivating it). Rather, the claim was that Flynn hid details of Trump’s plans to ease sanctions, an easing of sanctions Russians had asked Don Jr to do six months earlier in a meeting when they offered him dirt. The 302 from his FBI interview released last night makes it clear that indeed he did.

Finally, NPR is sad that Carter Page hasn’t been charged.

Will the feds ever charge Trump’s sometime foreign policy adviser, Carter Page, whom they called a Russian agent in the partly declassified application they made to surveil him?

This is not a checklist, where Trump will be implicated in a conspiracy only if the hapless Page is indicted (any case against whom has likely been spoiled anyway given all the leaking). The question, instead, is whether Trump and his spawn and campaign manager and longtime political advisor (the piece names neither Don Jr nor Roger Stone, both of whom have been saying they’ll be indicted) entered into a conspiracy with Russians.

In short, this piece aims to measure whether there was “collusion” not by looking at the evidence, but by looking instead at the Steele dossier to see if it’s a mirror of the known facts.

But NPR isn’t the only outlet measuring reality by how it matches up to the Steele dossier. This piece describes that Michael Isikoff thinks, “All the signs to me are, Mueller is reaching his end game, and we may see less than what many people want him to find,” in part because of the same three points made in the NPR piece (Cohen didn’t go to Prague, no pee tape has been released, and Flynn will get no prison time), but also because Maria Butina — whose investigation was not tied to the Trump one, but whom Isikoff himself had claimed might be — will mostly implicate her former boyfriend, Paul Erickson. In the interview, Isikoff notes that because the dossier has not been corroborated, calling it a “mixed record, at best … most of the specific allegations have not been borne out” and notes his own past predictions have not been fulfilled.  Perhaps Isikoff’s reliance on the dossier arises from his own central role in it, but Isikoff misstates some of what has come out in legal filings to back his claim that less will come of the Mueller investigation than he thought.

Then there is Chuck Ross. Like Isikoff, Ross has invested much of his investigative focus into the dossier, and thus is no better able than Isikoff to see a reality but for the false mirror of the dossier. His tweet linking a story laying out more evidence that Michael Cohen did not go to Prague claims that that news is “a huge blow for the collusion narrative.”

Even when Ross wrote a post pretending to assess whether the Michael Cohen plea allocution shows “collusion,” Ross ultimately fell back on assessing whether the documents instead proved the dossier was true.

Notably absent from the Mueller filing is any indication that Cohen provided information that matches the allegations laid out in the Steele dossier, the infamous document that Democrats tout as the roadmap to collusion between the Trump campaign and Russian government.

The most prominent allegation against Cohen in the 35-page report is that he traveled to Prague in August 2016 to meet with Kremlin insiders to discuss paying off hackers who stole Democrats’ emails.

The Isikoff comments appear to have traveled via Ross to Trump’s Twitter thumbs, all without assessing the evidence in plain sight.

Meanwhile, Lawfare is erring in a parallel direction, checking on the dossier to see “whether information made public as a result of the Mueller investigation—and the passage of two years—has tended to buttress or diminish the crux of Steele’s original reporting.”

Such an exercise is worthwhile, if conducted as a measure of whether Christopher Steele obtained accurate intelligence before it otherwise got reported by credible, public sources. But much of what Lawfare does does the opposite — assessing reports (it even gets the number of reports wrong, saying there are 16, not 17, which might be excusable if precisely that issue hadn’t been the subject of litigation) out of context of when they were published. Even still, aside from Steele’s reports on stuff that was already public (Carter Page’s trip to Moscow, Viktor Yanukovych’s close ties to Paul Manafort), the post reaches one after another conclusion that the dossier actually hasn’t been confirmed.

There’s the 8-year conspiracy of cooperation, including Trump providing Russia intelligence. [my emphasis throughout here]

Most significantly, the dossier reports a “well-developed conspiracy of co-operation between [Trump and his associates] and the Russian leadership,” including an “intelligence exchange [that] had been running between them for at least 8 years.” There has been significant investigative reporting about long-standing connections between Trump, his associates and Kremlin-affiliated individuals, and Trump himself acknowledged that the purpose of a June 2016 meeting between his son, Donald Trump Jr. and a Kremlin-connected lawyer was to obtain “dirt” on Hillary Clinton. But there is, at present, no evidence in the official record that confirms other direct ties or their relevance to the 2016 presidential campaign.

There’s the knowing support for the hack-and-leak among Trump and his top lackeys.

It does not, however, corroborate the statement in the dossier that the Russian intelligence “operation had been conducted with the full knowledge and support of Trump and senior members of his campaign team.”

There’s Cohen’s Trump Tower deal.

These documents relate to Cohen’s false statements to Congress regarding attempted Trump Organization business dealings in Russia. The details buttress Steele’s reporting to some extent, but mostly run parallel, neither corroborating nor disproving information in the dossier.

There’s Cohen’s role in the hack-and-leak, including his trip to Prague.

Even with the additional detail from the Cohen documents, certain core allegations in the dossier related to Cohen—which, if true, would be of utmost relevance to Mueller’s investigation—remain largely unconfirmed, at least from the unredacted material. Specifically, the dossier reports that there was well-established, continuing cooperation between the Trump campaign and the Kremlin; that Cohen played a central role in the coordination of joint efforts; and that he traveled to Prague to meet with Russian officials and cut-outs.

There’s Papadopoulos, who (as Lawfare admits) doesn’t show up in the dossier; here they argue he could have, without asking why Steele missed him running around London talking to people who traveled in Steele’s circles.

We revisit his case because it resonates with one of the themes of the dossier, which is the extensive Russian outreach effort to an array of individuals connected to the Trump campaign. Steele’s sources reported on alleged interactions between Carter Page and Russian officials, but Papadopoulos’s conduct would have fit right in.

Again, except for the stuff that was publicly known, Lawfare assesses one after another claim from the dossier and finds that Mueller’s investigation has not corroborated the specific claims, even while Mueller has provided ample evidence of something else going on. But that doesn’t stop Lawfare from claiming that Mueller has “confirm[ed] pieces of the dossier.”

The Mueller investigation has clearly produced public records that confirm pieces of the dossier. And even where the details are not exact, the general thrust of Steele’s reporting seems credible in light of what we now know about extensive contacts between numerous individuals associated with the Trump campaign and Russian government officials.

However, there is also a good deal in the dossier that has not been corroborated in the official record and perhaps never will be—whether because it’s untrue, unimportant or too sensitive. As a raw intelligence document, the Steele dossier, we believe, holds up well so far. But surely there is more to come from Mueller’s team. We will return to it as the public record develops.

In the end, I actually think Mueller may show that Trump, Stone, and Manafort did abet the hack-and-leak campaign, certainly the later parts of it, and that the Trump Tower deal was a key part of the quid pro quo. That’s aside from anything that Trump did with analytics data made available, if it was. But Mueller has just shown the outlines of where a case in chief might fit thus far. And where has has, those outlines raise one after another question of why Steele missed evidence (like the June 9 meeting) that was literally sitting in front of him. No one is answering those questions in these retrospectives.

One reason this effort, coming from Lawfare, is particularly unfortunate is because of a detail recently disclosed in Comey’s recent testimony to Congress. As you read, remember that this exchange involves Mark Meadows, who is the source of many of the most misleading allegations pertaining to the Russian investigation. In Comey’s first appearance this month (given Comey’s comments after testifying yesterday, I expect we’ll see more of the same today when his transcript is released), Meadows seemed to make much of the fact that Michael Sussman, who works with Marc Elias at Perkins Coie, provided information directly to Lawfare contributor James Baker.

Mr. Meadows. So are you saying that James Baker, your general counsel, who received direct information from Perkins Coie, did so and conveyed that to your team without your knowledge?

Mr. Comey. I don’t know.

Mr. Meadows. What do you mean you don’t know? I mean, did he tell you or not?

Mr. Comey. Oh, I — well —

Mr. Meadows. James Baker, we have testimony that would indicate that he received information directly from Perkins Coie; he had knowledge that they were representing the Democrat National Committee and, indeed, collected that information and conveyed it to the investigative team. Did he tell you that he received that information from them? And I can give you a name if you want to know who he received it from.

Mr. Comey. I don’t remember the name Perkins Coie at all.

Mr. Meadows. What about Michael Sussmann?

Mr. Comey. I think I’ve read that name since then. I don’t remember learning that name when I was FBI Director. I was going to ask you a followup, though. When you say “that information,” what do you mean?

Mr. Meadows. Well, it was cyber information as it relates to the investigation.

Mr. Comey. Yeah, I have some recollection of Baker interacting with — you said the DNC, which sparked my recollection — with the DNC about our effort to get information about the Russian hack of them —

Mr. Meadows. Yeah, that’s — that’s not — that’s not what I’m referring to.

Mr. Comey. — but I don’t — I don’t remember anything beyond that.

Mr. Meadows. And so I can give you something so that you — your counsel can look at it and refresh your memory, perhaps, as we look at that, but I guess my concern is your earlier testimony acted like this was news to you that Perkins Coie represented the Democratic National Committee, and yet your general counsel not only knew that but received information from them that was transmitted to other people in the investigative team. [my emphasis]

I have long wondered how the Perkins Coie meeting with the FBI on the hack timed up with the hiring, by Fusion GPS working for Perkins Coie, of Christopher Steele lined up, and that appears to be where Meadows is going to make his final, desperate stand. An earlier version of this hoax revealed that it pertained to materials on hacking, but did not specify that Steele had anything to do with it (indeed, Steele was always behind public reporting on the hack-and-leak).

Still, it would be of more public utility for Lawfare to clarify this detail than engage in yet another exercise in rehabilitating the dossier.

Instead, they — just like everyone else choosing not to look for evidence (or lack thereof) in the actual evidence before us — instead look back to see whether Steele’s dossier was a mirror of reality or something else entirely. If it’s the latter — and it increasingly looks like it is — then it’s time to figure out how and what it is.

Update: Cheryl Rofer did a line by line assessment of Steele’s dossier which is worthwhile. I would dispute a number of her claims (and insist that Steele’s reporting on the hacks be read in the temporal context in which he always lagged public reporting) and wish she’d note where the public record shows facts that actually conflict with the dosser. But it is a decent read.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Mike Flynn Steps in It: In a Bid to Feed the Frothy Right, He Leads to Release of Damning New Details Showing He Lied to Protect Trump

Last week, I suggested that Mike Flynn’s cute trick of publicly releasing information from Andy McCabe’s memo and Peter Strzok’s 302 might backfire.

He cited a memo that fired FBI Deputy Director Andrew McCabe wrote the day of Flynn’s interview and the interview report (called a “302”) that fired FBI Special Agent Peter Strzok had a hand in writing up in August 2017, some seven months after the interview.

In response, the judge in his case, Emmet Sullivan, issued an order asking not just for those two documents, but any documents related to the matters Flynn writes up, to be filed by tomorrow, along with the government’s reply to his memorandum.

And so it is that on the one year anniversary of the order Sullivan issued to ensure that Flynn got any exculpatory information relating to his plea, that the hopes among the frothy right that Flynn’s prosecution (including for lying about his sleazy influence peddling with Turkey) will be delegitimized and with it everything that happened subsequent to Flynn’s plea might be answered.

Or maybe not.

[snip]

DOJ has never had the opportunity to write its own explanation for what happened with Flynn’s interview. By inviting a reply specifically in the context of this Flynn claim, Sullivan has given DOJ the opportunity to do just that, finally.

[snip]

Sullivan’s order may result in documentation that reveals just how shoddy all the claims irregularity surrounding Flynn’s interview have been all this time.

Boy oh boy was I right.

In response to Judge Sullivan’s order, the government filed Flynn’s 302 under seal. After Sullivan reviewed it, he deemed it pertinent to Flynn’s sentencing, and had the government release a redacted version.

And it is unbelievably damning, in part because it shows the degree to which Flynn’s lies served to protect Trump.

The 302 shows how the FBI Agents first let Flynn offer up his explanation for his conversation with Kislyak. He lied about the purpose for his call to Kislyak on December 29 (he said he had called to offer condolences about the assassination of Russia’s Ambassador to Turkey) and he lied about the purpose of his call about Israel (he claimed he was, in part, doing a battle drill “to see who the administration could reach in a crisis” and in the process tried to find out how countries were voting on the Israeli motion; Flynn denied he had asked for any specific action).

Then, after the Agents specifically asked whether he recalled any conversation about the Obama actions, Flynn doubled down and claimed he did not know about those actions because he was in Dominican Republic.

He was hiding two things with this claim: first, I believe Susan Rice had given the Trump Administration a heads up on what Obama was going to do (at the very least the Obama Admin had asked the transition not to send mixed messages, and at least one person on the transition says they agreed not to). More importantly, he was hiding that he had already talked about the actions with KT McFarland, who was at Mar-a-Lago relaying orders from Trump.

And Flynn again denied having had a heads up from Susan Rice when he claimed he didn’t know that Russia’s diplomats were being expelled.

Finally, Flynn offered an excuse that is at least partly bullshit for why he called Kislyak multiple times.

The reason he kept calling Kislyak was, at least in part, because he was coordinating with Trump at Mar-a-Lago. His earlier claim that he didn’t respond to Kislyak is also probably a lie; he delayed his response to contact Mar-a-Lago first.

Sullivan said this 302 is relevant to Flynn’ sentencing, so he may actually use it to justify ignoring the joint requests of Flynn and Mueller for no jail time (though I’m not betting on it).

But by giving DOJ the opportunity to present this 302 for publication, Flynn provided proof of what has been hidden all this time — why Trump responded to the way he did about this investigation.

Flynn lied to hide Trump’s involvement in all this (and, to an extent, the degree to which it involved specifically ignoring a heads up from Obama).

Flynn lied to hide Trump’s personal involvement in telling the Russians to hold off on responding to Obama’s sanctions. And when the FBI investigated those lies, Trump fired the FBI Director to try to end that investigation.

Update: Jeebus. This 302 also reveals that he was quoting directly from the instructions KT McFarland had given him, relaying Trump’s orders. Here’s what McFarland said she had told Flynn, in an email shared with multiple transition officials.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

And here’s what — quoting from the transcript of his calls with Kislyak — the Agents asked him if he said.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Mike Flynn’s Flip: You Don’t Need Your Cooperator to Testify If the Conspiracy Was All Conducted over Email

Perhaps the most remarkable language in the Bijan Kian indictment appears in both the conspiracy 18 USC 371 and the 18 USC 951 foreign agent counts. In both, the indictment alleges that Kian (referred to by his legal name Rafiekian here) and Kamil Ekim Alptekin both acted, themselves, and caused others to act as unregistered foreign agents.

To knowingly act and cause others to act in the United States as an agent of a foreign government without prior notification to the Attorney General, in violation of 18 U.S.C. § 951;

[snip]

From approximately July 2016 through approximately March 2017, in the Eastern District of Virginia and elsewhere, the defendants, BIJAN RAFIEKIAN, a/k/a “Bijan Kian” and KAMIL EK.IM ALPTEKIN, knowingly acted and caused others to act in the United States as an agent of a foreign government, that is, the Government of Turkey, without prior notification to the Attorney General, as required by law. [my emphasis]

While not explicitly stated, the reference to Mike Flynn throughout the indictment as Person A — the only unindicted co-conspirator so identified — makes it clear that the government believes that’s what Flynn was doing, acting as an agent of Turkey. And the timeline for the conspiracy goes up to March 2017.

One of Trump’s top foreign policy advisors and, for almost a month, his National Security Advisor, was an agent of Turkey.

That fact, and the indictment as a whole, raises further questions about why Flynn got off so easy: a false statements charge for which he’ll do no time, unlike the 15 years his business partner is facing (though he won’t get that). And that outcome has raised still other questions about how Flynn could be useful to prosecutors, having admitted he’s a liar, yet having escaped all consequences for his actions. How can Flynn testify, commentators wonder, given that he was not charged for his role in the conspiracy?

Aside from quipping “flip early and often,” I think the Kian indictment provides clues — clues that I’ve long suspected have parallels in the Mueller investigation.

The indictment focuses just on the op-ed purportedly authored by Flynn that appeared in The Hill on election day, though we know Flynn’s company did more than that for Turkey. By focusing on the op-ed, DOJ can trace what happened with language Kian used to describe Fethullah Gulen. It was used in early August, before the conspirators started hiding the role of Turkey in the project.

On or about August 4, 2016, RAFIEKIAN sent an email with the subject “Truth” to ALPTEKIN and Person A stressing the need to begin work on the Truth Campaign. Referring to Iran’s Ayatollah Khomeini, RAFIEKIAN said:

Let me give you a real life experience: 1978: A soft spoken cleric sitting under an apple tree in Neauphle-le-Chateau in France looked so harmless. Spoke of equality and spirituality, declared that if he were to gain power, he would go to a religious shrine and will not get into politics and governance. Sound familiar? Well, the world neglected to take the layers off the ink blot in 1978. One year later, from the place under the apple tree, The soft spoken spiritual man led the Islamic Revolution in Iran ….

The indictment then shows how the apple language appears in talking points for a key September meeting with Turkish officials.

On or about September 18, 2016, in preparation for the meeting with the Turkish officials, RAFIEKIAN sent ALPTEKIN a document entitled “Background and Talking Points,” which contained approximately twenty talking points for the meeting, all of which concerned the Turkish citizen, the Turkish citizen’s movement, or the Turkish citizen’s charter schools in the United States.

RAFIEKIAN’s “Background and Talking Points” contained the same “apple tree” comparison of Khomeini and the Turkish citizen that RAFIEKIAN had used in his email to ALPTEKIN (paragraph 13) when the project was still called the “Truth campaign” and in the “playbook” (paragraph 23) when RAFIEKIAN referred to the Turkish citizen as “X.”

And then the same language shows up in both a draft of the op-ed Kian wrote for Flynn to slap his name onto, and in the op-ed as it appeared in The Hill.

The apple language serves as the marker showing the continuity between the project originally explicitly backed by Turkey, at the time ironically named “Truth,” and the project after it got renamed “Confidence” as part of an effort to hide Turkey’s role by using Alptekin’s company as a cut-out.

And virtually every step of that process was conducted over email or other communication methods that the FBI could easily collect.

Flynn’s genius co-conspirators — at least in this particular foreign agent conspiracy — even sent emails that noted that they were hiding details in other written documents.

ALPTEK.IN further told RAFIEK.IAN, ”Needles [sic] to tell you but he asked me not to read in anyone else for the time being and keep this confidential.”

[snip]

RAFIEKIAN promised to send ALPTEKIN a contract, but noted that it “will not entail operational details for obvious reasons.”

DEAR FBI, they might as well have written, LOOK HERE FOR THE SEKRITZ.

At least as laid out, virtually all the evidence needed to convict the co-conspirators is written down. As noted, much of this was in emails (the word appears 33 times in the indictment). There were two conversations via Skype, a Section 702 provider, as well as one text sent via Skype. Flynn sent one text memorializing a meeting with Alptekin referencing one of the Turkish Ministers who were their real clients. There were multiple financial wires.

The only overt acts described in the indictment that could not have been captured by the FBI or collected after the fact were one meeting, some lobbying activities, and some weekly phone calls.

On or about the evening of September 19, 2016, Person A, RAFIEKIAN, ALPTEKIN, and other members of the project met in New York City with Turkish Minister #1 and Turkish Minister #2. The conversation centered on the Turkish citizen and the Turkish government’s efforts to convince the U.S. government to extradite the Turkish citizen to Turkey.

[snip]

In or about September and October 2016, RAFIEK.IAN and others involved in the project visited with and lobbied a member of Congress, a Congressional staffer, and a state government official in an attempt to depict the Turkish citizen as a threat who should be returned to Turkey and to persuade them to hold Congressional hearings concerning the Turkish citizen.

[snip]

On approximately a weekly basis during the project, RAFIEKIAN, Person A, and other Company A team members had telephone conference calls with ALPTEKIN to update ALPTEKIN on the progress of the project. [my emphasis]

All of those, however, also included other team members, members who didn’t lie to the government and aren’t being charged as co-conspirators.

That leaves one other key piece of evidence the government might have needed help to collect: communications with the lawyers who filed the false FARA filings.

From approximately January 2017 through approximately March 2017, outside attorneys for Company A gathered information to determine whether Company A or any of its employees had an obligation to register under FARA based upon Company A’s work on “Operation Confidence.” During this process, RAFIEK.IAN and ALPTEKIN knowingly provided false information to Company A’s attorneys in an effort to hide from the attorneys – and ultimately from the FARA Unit – the involvement of Turkish government officials in the project.

While Mueller was able to get a crime-fraud exception to get communications from the lawyer who did Paul Manafort’s false FARA filings, once Flynn flipped he could have voluntarily waived privilege to make those documents available to the government. Indeed, I wonder if that’s what’s hidden in a key redaction in Flynn’s cooperation addendum.

In other words, there is a non-liar witness (or document) for every overt act in this indictment. They don’t need Flynn to sit on the witness stand and describe the conspiracy, as laid out. They can just have his service providers provide authentication of all the communications and have his former colleagues testify, along with his lawyers, now freed of any privilege obligation.

Critically, for a national security investigation like this one (and, I assume, for the Russian one as well), I’m sure Flynn described at more length everything else that went on. But the government doesn’t need that information to prosecute these crimes (except insofar as his cooperation would have made it very easy to get warrants for the information Flynn didn’t hand over himself — and his own sentencing memo makes it clear he did hand over much of it). It needs that information for counterintelligence purposes.

And that’s why they were able to move towards sentencing without his testimony in court: because he may not need to give testimony in court. The government has secured other, more reliable witnesses for that testimony.

As I said, I’ve long suspected this was true of Flynn’s cooperation on the Mueller investigation, as well. When the government, in describing his cooperation, said his decision to flip “likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate” (which is followed by the last, entirely redacted, sentence in the memo), they are probably describing how by pleading guilty to lying himself, he led to their ability to get better, more reliable witnesses for much of the relevant testimony.

Update: Took out a reference to NSA; Alptekin may be a green card holder; if he is, he couldn’t be a legal 702 target.

Bumped! Rudy’s Ineffective Assistance of Counsel Strategy

I got an invitation to be on my first Sunday show this week. But — as usually happens when you’re talking to big media bookers — I got bumped. I got bumped to make way for this Rudy Giuliani appearance, which sets a new standard among his many media appearances for giving Trump cause to claim his lawyer screwed him over.

The interview starts with Trump’s blabbermouth lawyer assailing someone else for bad lawyering.

RUDY GIULIANI, PRESIDENT TRUMP’S LAWYER: Pathetic. The man is pathetic. That’s a lawyer you were interviewing and he says he — oh, he directed me to do it and, oh my goodness, he directed me. He’s a lawyer. He’s the guy you depend on to determine whether or not you should do it this way or that way, whether you’re Donald Trump or you are me or you, I have…

From there, Rudy pisses away one of the few benefits he offers Trump, his past service as US Attorney in the famously cliquish Southern District of NY. Rather than soft-pedaling any critique of SDNY, Rudy repeatedly pisses all over the office currently targeting his client, his client’s spawn, and his client’s eponymous corporation in at least one serious criminal investigation.

STEPHANOPOULOS: But you just said you ran that office. You know how the Southern District is run. You know exactly how the Southern District is run.

GIULIANI: No, I don’t know — actually, I don’t know how the Southern District —

(CROSSTALK)

STEPHANOPOULOS: They wouldn’t have put that in the statement of fact if they didn’t believe —

GIULIANI: I’m disgusted with the Southern District.

[snip]

STEPHANOPOULOS: Here’s the question I have for you. Why do you have so much trouble with the southern district? The southern district’s being run – this case being run by Robert Khuzami, a Republican appointed by the Trump administration, spoke at the Republican …

GIULIANI: His interpretation of the campaign finance law is completely erroneous. And to be – even if – and even if you want to make some argument that there’s some validity to it, you do not pursue a president of the United States for a questionable interpretation of the statute. That is completely wrong, it’s harassment.

After failing to respond to George Stephanopoulos’ descriptions of what distinguishes Trump’s hush payment case from that of John Edwards, Rudy fails to offer one piece of evidence that might back his arguments — that Trump had paid similar hush payments in the past, when winning the Presidential election wasn’t at stake.

STEPHANOPOULOS: Did he ever make any payments like that in the past?

GIULIANI: Nobody else asked for — in the past, I can’t speak to. I wasn’t his lawyer in the past.

Rudy then tries to claim that Jerome Corsi (who, Stephanopoulos points out, claimed 9/11 was an inside job) and Mike Flynn were not lying, misstating that Peter Strzok had said something exonerating about Flynn in a text versus an FBI interview.

Peter Strzok wrote in one of his texts that he didn’t seem to be – he didn’t seem to be lying, wasn’t acting like a person …

This is where things start to go really haywire. Stephanopoulos asks Rudy about the reference to Michael Cohen’s ongoing contacts with the White House through 2018 — which, given the way multiple entities happened to tell the same false story about the Trump Tower deal, likely means a conspiracy to obstruct justice — and in response Rudy says “It was over by the time of the election.”

STEPHANOPOULOS: Now, the special counsel went on to say that they found Cohen credible, provided valuable information about Russia-related matters for its investigation, also that his contacts with persons connected to the White House in 2017 and 2018, they seem to be getting at, there, both collusion and obstruction.

GIULIANI: Isn’t that prosecution by innuendo? I have no idea what they’re talking about. Beyond what you just said, I have no idea what they’re talking about …

STEPHANOPOULOS: Well, let me ask you a few specifics.

GIULIANI: I have no – I have no idea – I know that collusion is not a crime. It was over with by the time of the election. I don’t know what evidence … [my emphasis]

Admittedly, by this point in the interview, Rudy was blathering. But I’m particularly interested — given that Trump reportedly refused to answer any Mueller questions about the transition — that Rudy thinks in terms of the collusion he’s seemingly admitting his client engaged in ended “by the time of the election.” Trump’s legal team may be adopting a defensive strategy premised on the claim that certain activities (reaching out to Russians to tell them you’ll give them sanctions relief is just the most obvious) can be divorced from any context that implicates election season “collusion.”

That’s the form of Rudy’s most newsworthy statement is so interesting. He says that the answer Trump gave (in context, this must mean in response to Mueller’s questions) “would have covered all the way up to,” and here he corrects himself, “covered up to November, 2016.”

STEPHANOPOULOS: Did the president – did Donald Trump know that Michael Cohen was pursuing the Trump Tower in Moscow into the summer of 2016?

GIULIANI: According to the answer that he gave, it would have covered all the way up to – covered up to November, 2016. Said he had conversations with him but the president didn’t hide this. They know …

STEPHANOPOULOS: Earlier they had said those conversations stopped in January, 2016.

GIULIANI: I don’t — I mean, the date — I mean, until you actually sit down and you look at the questions, and you go back and you look at the papers and you look at the — the — you’re not going to know what happened. That’s why — that’s why lawyers, you know, prepare for those answers.

This is breaking news, of course: the last we had heard, the Trump Tower negotiations only went up through July. Here, Rudy seems to be confessing that they went through November.

Only, his reference to “why lawyers, you know, prepare for those answers” suggests that that’s not what Trump’s response to Mueller actually was. I would imagine the response he gave was deliberately left vague enough so that if Cohen (who was caught meeting with Mueller in the days when Trump was finalizing his answers) told Mueller the deal went through November, then Trump’s answer wouldn’t contradict that, even if he didn’t admit that the deal did go that long.

Rudy went on the teevee this morning, in part, to make an utterly damning statement that would nevertheless tell Mueller’s prosecutors that the answer (lawyers wrote but that) his client swore to was meant to cover a deal that continued all the way through November, even if he didn’t say that explicitly.

Remember, the day Cohen pled guilty on the Mueller false statements charge, Rudy gave an unbelievably hedged answer about whether that deal ever died.

“The president, as far as he knows, he remembers there was such a proposal for a hotel,” Giuliani said. “He talked it over with Cohen as Cohen said. There was a nonbinding letter of intent that was sent. As far as he knows it never came to fruition. That was kind of the end of it.”

Rudy seems confident that Cohen did not know about the continuation of this deal, but I’d bet money that it did continue.

Back to today’s interview, Rudy goes on to deny, then back off a categorical denial, that Stone communicated to Trump about WikiLeaks, working hard to suggest that Mueller might only charge a conspiracy to hack, not a conspiracy to defraud the United States (even while the public record makes it increasingly possible that Stone could get charged in a CFAA conspiracy).

STEPHANOPOULOS: And did Roger Stone ever give the president a heads-up on WikiLeaks’ leaks — leaks concerning Hillary Clinton, the DNC?

GIULIANI: No, he didn’t.

STEPHANOPOULOS: Not at all?

GIULIANI: No. I don’t believe so. But again, if Roger Stone gave anybody a heads-up about WikiLeaks’ leaks, that’s not a crime. It would be like giving him a heads-up that the Times is going to print something. One the — the crime — this is why this thing is so weird, strange — the crime is conspiracy to hack; collusion is not a crime, it doesn’t exist.

STEPHANOPOULOS: No. Conspiracy to defraud the government, you’re right, conspiracy to hack that is the crime. We don’t know whether …

GIULIANI: Yes. Did Donald Trump engage in a conspiracy to hack with the Russians? They’ve been going at it. The counterintelligence investigation came to the conclusion no evidence.

Rudy seems to take wholly unjustified comfort in what I can only guess is that GRU indictment describing his client and Stone prominently, without charging them. Hell, Julian Assange hasn’t even been charged yet; why does Rudy think the counterintelligence investigation is done?

From there, Rudy admits he was in discussions with Cohen’s lawyers about pardons!!!! He then suggests that Cohen “double-crossed” — that is, told the truth — because of that discussion about pardons.

STEPHANOPOULOS: Well, they’re also looking at obstruction. Did anyone connected to the president ever suggest in any way to Michael Cohen that he would get a pardon if he stayed on the team?

GIULIANI: I had this specific conversation with his lawyers and that liar can say what he wants, I told his lawyers there will be no discussion of a pardon. That doesn’t mean the president doesn’t have the — nobody’s giving away any power, but do not consider it in your thinking now. It has nothing about what you should decide about yourself. I think that’s one of the reasons why he double-crossed.

All this ends with Rudy stating, quite confidently, that Mueller is done, after having just said that conversations were ongoing about whether Trump might sit for an interview.

STEPHANOPOULOS: I do know that from my time in the White House. Final question: Mueller almost done?

GIULIANI: He is done. I don’t know what else — I told you. No, the only thing left are the parking tickets and jaywalking.

Maybe Rudy’s right. Maybe Mueller has told him they didn’t find any evidence against his client.

But even if that’s (improbably) true, if I’m Mueller I might be reopening things in light of this appearance by Rudy.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

That Peter Strzok 302 Probably Comes from the Obstruction Case File

I’d like to provide a plausible explanation for questions about an FBI 302 released yesterday as part of the Mike Flynn sentencing.

As a reminder, after Flynn pled guilty, his case ultimately got assigned to Emmet Sullivan, who is laudably insistent on making sure defendants get any possible exonerating evidence, even if they’ve already pled guilty. On his orders, the government would have provided him everything early in 2018.

In Flynn’s sentencing memo submitted earlier this week, his lawyers quoted from an Andrew McCabe memo written the day of his interview and a 302 that they described to be dated August 22, 2017, a full 7 months after his interview. In predictable response, Sullivan instructed the government to provide that McCabe memo and the 302 cited by Flynn’s lawyers.

When the government submitted those two documents yesterday, they raised still more questions, because it became clear the 302 (which is what FBI calls their interview reports) in question was of an interview of Strzok conducted on July 19, 2017, drafted on July 20, and finalized on August 22. The 302 described that Strzok was the lead interviewer in Flynn’s interview, whereas his interviewing partner wrote up the 302.

This has raised questions about why we only got the Strzok 302, and not the original one cited by Strzok.

While I don’t have a full explanation, certain things are missing from the discussion.

Folks are misunderstanding what the 302 represents. It is not the 302 reporting the Flynn interview. Rather, it is a 302 “collect[ing] certain information regarding Strzok’s involvement in various aspects of what has become the Special Counsel’s investigation,” which he described to one Senior Assistant Special Counsel and an FBI Supervisory Special Agent, presumably one assigned to SCO. The 302 notes that Strzok wasn’t just involved in the investigation of Mike Flynn. While it redacts the names, it also lists the other parts of the investigation he oversaw.

We know he was involved in the Papadopoulos investigation, and it appears likely he was involved in the Page investigation, as well. Both this passage and the next one describes the people at DOJ that Strzok interacted with in these investigations, which is further evidence the purpose of this 302 is not to capture the interview, but instead to capture details about internal workings surrounding the investigation itself.

The part of this 302 that is unredacted makes up maybe a third of the substance of the 302, and it appears between almost full page redactions before and after the part describing the Flynn interview. Again, the other stuff must be as pertinent to the purpose of this 302 as the Flynn interview itself.

had thought the interview might be an effort by SCO to capture Strzok’s institutional knowledge in the wake of the discovery of his texts with Lisa Page as a way to prepare some other FBI Agent to be able to testify at trial. But the timing appears wrong. DOJ’s IG first informed Mueller about the texts on July 27, and he was removed from the team the next day (though not processed out of that clearance, according to this report, until August 11).

Strzok was assigned to lead the Russia investigation in late July 2016. 197 Page also worked on the Russia investigation, and told us that she served the same liaison function as she did in the Midyear investigation. Both Page and Strzok accepted invitations to work on the Special Counsel staff in 2017. Page told the OIG that she accepted a 45-day temporary duty assignment but returned to work in the Deputy Director’s office at the FBI on or around July 15, 2017. Strzok was removed from the Special Counsel’s investigation on approximately July 28, 2017, and returned to the FBI in another position, after the OIG informed the DAG and Special Counsel of the text messages discussed in this report on July 27, 2017. [my emphasis]

But the interview does line up temporally with other known events: Around the time Strzok was interviewed, both Rod Rosenstein and Sally Yates were interviewed in the obstruction case, interviews that would also result in 302s summarizing the interview. Jim Comey had already turned over his memos on meetings with Trump by that point; eventually he would be interviewed by Mueller as well, though it’s not clear when that interview (and correlating 302) was.

Yates and Comey are both among the people the 302 explicitly describes Strzok interacting with.

In other words, it seems likely that this 302 was designed to capture what Strzok knew about the internal workings of DOJ and FBI surrounding the Mike Flynn interview, and likely was focused on explaining the significance of Flynn’s lies and subsequent firing to the obstruction case. That is, this would have served to turn what Strzok learned as investigator into information Strzok had to offer as a witness, in the same way that Mueller would have had to turn what Comey and Rosenstein knew as supervisors into information relevant to their role as witnesses. It probably had the unintended benefit of capturing what Strzok knew about key parts of the investigation before he was indelibly tainted by the discovery of his text messages.

If this is the explanation, it raises questions about why we only got this 302, and not the original one.

There’s a very likely answer to that: that original 302 presumably didn’t include this detail, at least not in the easily quotable form that would serve Flynn’s political purposes.

Flynn has, as far as we know, gotten everything. His lawyers chose which of those documents to quote. And Judge Sullivan only ordered the government to produce these two (though invited them to submit anything else they wanted to, an invitation they did not take up).

But there’s another piece of evidence that there’s far less to this 302 than some are suggesting: because Republicans in Congress chased down this detail over the last year, and in their most recent incarnation of drumming up conspiracies about Flynn, in questioning Jim Comey just a week ago, Trey Gowdy did not focus on the question of the 302s produced, but instead tried to suggest that Flynn didn’t mean to lie.

Note that, contrary to what right wingers have suggested, Comey did not say anything inconsistent with the Strzok interview 302; rather, he said he wasn’t sure where his knowledge came from.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question. [my emphasis]

What may best explains this exchange is that, when it happened, Comey had never seen the Strzok 302, he had just seen the original one, but Gowdy had seen both. That would be consistent with Andrew McCabe’s testimony to HPSCI, which acknowledged that the Agents didn’t detect deception but knew Flynn’s statements did not match the FISA transcript.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

Gowdy may be suggesting that the original 302 was unfair because it did not admit how well Flynn snookered the FBI’s top Counterintelligence Agent. But that detail may not be something Comey is even aware  of, because it only got written down after he had been fired. That would explain why Flynn wouldn’t want that original one disclosed, because it might make clear that the FBI immediately recognized his claims to be false, even if they didn’t know (before doing the requisite follow-up) why he lied.

One thing we do know: there are two (related) criminal investigations that have come out of Mike Flynn’s interview. The first, into his lies, and the second, into Trump’s efforts to keep him on in spite of his lies by firing the FBI Director.

While we can’t say for sure (and Mueller’s office would not comment in response to my questions when I asked if something like this explained the 302), one possible explanation for why we’re seeing just this 302 is it’s the only one that makes Flynn look good.

Update: As JL notes, the Mueller filing makes it clear that the 302 is neither from the Flynn investigation nor from an investigation into Strzok’s conduct.

Strzok was interviewed on July 19, 2017, in relation to other matters, not as part of the investigation of the defendant or any investigation of Strzok’s conduct.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

If the Government Obtains the Full Manafort Forfeiture, the Mueller Investigation Will Have Netted Almost $21 Million

The Special Counsel’s Office has released their latest expenditures report.

Thus far, here’s how the SCO spending breaks down (as the reports make clear, SCO is not legally obligated to track the indirect expenses that DOJ would spend otherwise, but they have been asked to do so).

Period

Direct

Indirect

Total

May 17, 2017 to September 30, 2017

$3,213,695

$3,546,000

$6,759,695

October 1, 2017 through March 31, 2018

$4,506,624

 $5,476,000

$9,982,624

April 1, 2018 through September 30, 2018

$4,567,533

 $3,906,000

$8,473,533

Total

$12,287,852

$12,928,000

$25,215,852

 

As a reminder, as part of his plea deal, Paul Manafort has to forfeit as much of the $46 million he can scrape together of the ill-gotten gains he earned from his crimes.

Unsurprisingly, there are a number of entities — most amazingly Steven Calk’s bank — contesting Manafort’s claims to actually own a number of the financial and real estate holdings that he said he did.

Still, if the US government can find enough assets to squeeze out of Manafort, the Mueller investigation will have — through October 1 — netted $20,784,148 million for the US Treasury. And that’s before the $500,000 Michael Cohen will have to pay, as well as any forfeiture Sam Patten will pay when he is sentenced for his sleazy influence peddling, in cases referred by Mueller to other US Attorney’s offices.

Did Jared Kushner Try to Preemptively Undercut Mike Flynn at the Enquirer?

One thing about the Mueller investigation I’ve gone back and forth on is the degree to which Jared Kushner is in legal trouble. While he left the June 9, 2016 meeting before any agreement to enter a conspiracy might be said to have been reached, his efforts to set up a back channel during the transition period — and the degree to which he appeared to be self-dealing rather than representing the interests of the United States — seemed to expose him to different legal problems.

Then there’s the record on Mike Flynn. A key CNN report dated November 30, the day before Flynn flipped, had suggested — given the then publicly known events — that Mueller interviewed Jared in advance of Flynn’s plea agreement, in what might have been a last ditch effort to allow Jared to exonerate Flynn.

Mueller’s team specifically asked Kushner about former national security advisor Michael Flynn, who is under investigation by the special counsel, two sources said. Flynn was the dominant topic of the conversation, one of the sources said.

[snip]

The conversation lasted less than 90 minutes, one person familiar with the meeting said, adding that Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports. One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

But Flynn’s sentencing memo revealed that he had five proffer meetings before he signed the agreement.

He participated in five pre-plea proffer sessions with the Special Counsel’s Office and fourteen additional meetings with the Government pursuant to the Plea Agreement entered on December 1, 2017.

And, per CNN, Mueller was asking other witnesses about Jared at the time, too.

The meeting took place around the same time the special counsel asked witnesses about Kushner’s role in the firing of former FBI Director James Comey and his relationship with Flynn, these people said.

That (plus reports that Flynn cooperated shortly after he was asked) suggests the meeting with Kushner may well have come after some of those proffer meetings involving Flynn, which would in turn suggest that Mueller was locking in Jared’s testimony with that short interview before revealing that Flynn was cooperating.

Still, Jared is one of the few people involved in this scandal with a very competent defense attorney, and after Abbe Lowell announced that Jared had had a much longer interview with Mueller in April and had gotten a (Trump-demanded) security clearance, I started to believe that Lowell had performed another master stroke as a defense attorney.

Then, in mid-April, Kushner sat for six to seven hours of questions that covered many topics, including his work on the Trump campaign, the transition and in the White House and about Trump’s decision in May 2017 to fire Comey.

The special counsel’s questioning focused on Kushner’s work with Trump and did not include topics such as Kushner’s personal finances or those of his family business, Kushner Companies, according to the person familiar with the matter.

Which brings us to this story from the Daily Beast, revealing that Jared (who worked the press assiduously when he owned the Observer) took over Michael Cohen’s duties of planting stories in the National Enquirer after Cohen was denied a job in the Administration.

During the early months of the Trump era, Kushner performed the task admirably, discussing with Pecker various issues over the phone, including everything from international relations to media gossip, according to four sources familiar with the situation. Pecker, for his part, bragged to people that he was speaking to the president’s son-in-law and, more generally, about the level of access he had to the upper echelons of the West Wing, two sources with knowledge of the relationship recounted.

TDB focuses on Trump’s threat to deal dirt on Scarborough and Mika (I had been wondered who had orchestrated that threat) and, rightly, the big propaganda piece that Mohamed bin Salman’s unregistered assassination crisis repair agent, Jared, planted.

Starting in late 2016, AMI’s priorities shifted from a potential business deal with Kushner to one focused on access to political power. Shortly after the Trump presidency began, Kushner and Pecker talked repeatedly, on subjects ranging from relations with the Saudi regime, to possible dirt that the Enquirer had on Morning Joe’s Mika Brzezinski and Joe Scarborough, according to the four sources who spoke on the condition of anonymity to discuss sensitive matters.

AMI, like Kushner, cozied up to the despotic Saudi government, which included the production of a glossy propaganda magazine boosting Saudi Crown Prince Mohammed bin Salman.

Last year, Brzezinski and Scarborough, who had increasingly become Trump critics, made the explosive allegation that three senior aides to President Trump “warned” the couple that the Enquirer would publish a negative story on them unless they “begged” Trump to intervene on their behalf. The couple’s account was disputed by White House officials, who said the conversations were far more cordial than the TV hosts described.

As The Daily Beast reported last year, Kushner was one of the senior officials who privately spoke to Scarborough about the matter. According to two White House officials, Scarborough had “calmly sought” advice from Kushner, who “recommended he speak with the president.” Scarborough did not know that Kushner had also been directly in touch with the Enquirer’s publisher at the time, according to a source familiar with the matter.

But I’m just as interested in the spread, from the same period as the Saudi propaganda, seemingly pre-empting a Flynn cooperation agreement with Mueller by attacking him as “the Russian spy in Trump’s midst.”

The claim that “Trump catches Russia’s White House spy” — clearly an attempt to smear Mike Flynn — actually got me to drop the $4.99 for a copy of the National Enquirer to read the hit job. And it’s actually more than a contrived effort to claim Flynn is a Russian spy: it’s a four-page spread, implicating Hillary and Mike Pence, too.

[snip]

While the Flynn story has been viewed — particularly alongside unsubstantiated claims that Flynn is cooperating with the FBI — as an attempt to damage him for snitching, it almost certainly dates to earlier than more recent attacks on Flynn, and in conjunction with stories of loyalty oaths from Pence appears tame by comparison.

If he did, the newly cooperative David Pecker has probably already made that clear to authorities.

If Jared — the guy whom Flynn witnessed trying to set up a back channel with Russia — planted a smear attempting to paint Flynn as a Russian infiltrator, it suggests he had reason all the way back in March to try to undercut Flynn. And then, in November, when he had chance to help Flynn out of his legal woes in November, he reportedly did not do so.

It still never pays to bet against the legal skills of Abbe Lowell. Jared is still likely to skate.

But these details sure change my understanding about which collusion egg Mueller cracked first.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

After Replacing FBI Devices Two Times, the Bureau Still Fails to Collect 10% of Agent Text Messages

Today, DOJ’s Inspector General released its report on the efforts it made to restore all of Peter Strzok and Lisa Page’s text messages. The report is actually better used to illustrate how, three years into beginning to respond to its failures to collect all of the texts sent or received using FBI issued phones, and after twice upgrading the phones Agents get issued, it still fails to retain 10% of texts that Agents send and receive.

With regards to Strzok and Page, the report describes the efforts it made to obtain all their texts, which includes:

  • Obtaining both the Samsung (Galaxy 5, then Galaxy 7) phones they used during this period, as well the iPhones issued for their brief stint in Mueller’s office, the latter of which neither appears to have used
  • Using the existing collection tool, which included big gaps for key periods of interest
  • Asking DOD’s Computer Forensic Lab for help
  • Searching the Enterprise database, which found a bunch more texts, for reasons no one could explain
  • Hiring an outside Android consultant, who found 62 additional text messages

The upshot is, FBI doesn’t know whether they recovered all Strzok and Page’s texts, and doesn’t know why they didn’t, if in fact they didn’t.

And we’re only learning this because the two of them decided to conduct an extramarital affair on their FBI-issued devices while serving on the two most high profile investigations in recent FBI history.

Which raises the question: is this also true for Agents investigating defendants without the clout of Hillary Clinton or Donald Trump? If necessary, would the FBI be able to find their texts?

The answer is, maybe not.

Here’s what this report says about FBI’s retention rules, generally.

First, important texts are retained by policy, not (technologically-assisted) procedure. So the country’s premier law enforcement agency ensures that important law enforcement related texts are retained by saying anything covering these topics must be retained.

  • Factual information about investigative activity
  • Factual information obtained during interviews or interactions with witnesses (including victims), potential witnesses, experts, informants, or cooperators
  • Factual discussions related to the merits of evidence
  • Factual information or opinions relating to the credibility or bias of witnesses, informants and potential witnesses; and
  • Other factual information that is potentially discoverable under Brady, Giglio, Rule 16 or Rule 26.2 (Jencks Act)

But it’s up to the Agents to do that. And if they don’t for some reason, they’re instructed to ask the Enterprise Security Operations Center if they retained them. But the ESOC is not mandated to retain texts. They happen to, but it’s not tied to any mandate to retain substantive communications required to be saved by policy.

The ESOC has a tool, by a vendor whose name may not even appear in redacted form in this report, that “wirelessly collect[s] text messages sent to or from FBI-issued mobile devices.”

As the FBI’s response to this report reveals, the Bureau has known for some time that that tool didn’t collect everything, because they’ve told the OIG that on two prior occasions.

Prior to the OIG’s investigation into the FBI’s actions in advance of the 2016 election, during at least two unrelated investigations, one of which dates back to 2015, the FBI made the OIG aware of gaps in FBI text message collection capabilities.

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

In any case, the FBI started trying to fix the problem, starting in 2016. At the time they started, they were losing 20% of the texts sent and received. After two upgrades of Samsung phones and a fix to a “bug” later, they’re still not collecting 10%.

During calendar year 2017, the FBI phased out use of the Samsung Galaxy S5 devices by its employees and replaced them with Samsung Galaxy S7 devices because of software and other issues that prevented the data collection tool from reliably capturing text messages sent and received via FBI issued Samsung Galaxy SS mobile devices. According to FBl’s Information and Technology Branch, as of November 15, 2018, the data collection tool utilized by FBI was still not reliably collecting text messages from approximately IO percent of FBI issued mobile devices, which included Samsung S7s and subsequently issued S9s. By comparison, the estimated failure rate of the collection tool was 20 percent for the Samsung S5s.

The FBI’s tech folks provided these explanations for why the tool by the unnamed vendor still doesn’t work.

  • In calendar year 2016 the collection application vendor reported a “bug” in a version of the collection tool which caused the application to stop collecting text message or log data- This application version was replaced by a newer version that corrected the issue in March 2017.
  • Errors during the initial installation of the collection application, such as misconfiguration during setup.
  • Errors in the collection application’s ability to send text message data caused by software updates or operating system updates on the mobile device itself.
  • Hardware errors, such as the device not being powered on, being located in a poor cellular signal area, or being located in an area with no cellular service.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This story, like so many with the hoaxes that Republicans have ginned up to try to delegitimize the Mueller investigation, seems to be the big story, not what Strzok and Page sent themselves two years ago (the IG Report concluded the non-discoverable texts did not cover one subject area, so weren’t by themselves suspect, and doubted either Strzok or Page had the technical capability to selectively destroy only incriminating texts).

The FBI is an agency that routinely demands that people respond to subpoenas by pulling all the relevant texts on a given subject. If you were to fail, they would be at least consider whether your failure to do so amounted to obstruction. But they don’t guarantee they would be able to meet that same standard — they’re happy with their 10% failure rate, apparently.

And while it is an interesting topic for Strzok and Page and Donald Trump’s attempts to claim Witch hunt! it’s the instances where criminal defendants are asking the FBI to search for relevant texts among agents (in just one example, MalwareTech asked the FBI for texts between Agents surveilling and then arresting him in Las Vegas, but got nothing) that I care about. Because if you only aspire to 90% retention, and if you attribute any failure to do better to an individual Agent’s failure to meet a policy (but how would you prove it, if the point is that a given text no longer exists to be discovered?), then you’re pretty much ensuring that you can’t fully comply with discovery requests from defendants.

Apparently, the FBI seems okay with that.

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