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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MUELLER: Correct.

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

Flynn blames his guilty pleas on his Covington lawyers

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

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

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

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

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

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

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

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

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

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

Flynn repeats his claim he was railroaded

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

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

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

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

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

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

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

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

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

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

Emmet Sullivan has six decisions to make, not just one

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

Emmet Sullivan Tells Potential Amici Not to Bug Him Yet

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

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

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

Finally, Sullivan just issued this order:

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

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

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

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

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

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

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

[snip]

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

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

The Public Record Claims that Flynn Had No Permission from Trump to Undermine US Policy in Calling Kislyak

In the last several days, part time Director of National Intelligence and full time Twitter troll Ric Grennell declassified the names of people who unmasked Mike Flynn’s name in call transcripts with Sergey Kislyak. The public record already shows the FBI did so after they discovered his calls explained why Russia had not responded as expected after Barack Obama imposed sanctions on Russia on December 28, 2016.

The press has, predictably, chased this issue as a matter of partisan game, demonstrating utter disinterest in how obviously they are being chumps in a political ploy.

Release of the list, which would be an unprecedented move, is likely to resurrect a partisan debate over an episode that had roiled the early days of Mr. Trump’s presidency and has taken on renewed urgency after the Justice Department moved to drop a criminal case against Mr. Flynn last week.

It takes enormous leaps of willful ignorance of the facts to treat this as the partisan spat that Trump wants it to be.

That’s true, for two reasons:

  • The public record shows that the Obama Administration did need to know Flynn’s identity to understand the Kislyak intercept and accorded Flynn deference as a result until such time that it appeared Flynn had acted without official sanction
  • The public record, over three years after the call, remains consistent with Mike Flynn making that call to Sergey Kislyak without permission from Trump himself, meaning the public record is consistent with Flynn acting on his own

Under FISA, the Executive Branch may not disseminate an American’s identity obtained from a FISA intercept, “unless such person’s identity is necessary to understand foreign intelligence information or assess its importance.” But if the Executive Branch needs that person’s identity to understand foreign intelligence, they can unmask the identity.

It matters that this call was made by the incoming National Security Advisor. At first, Flynn’s identity made the call look less suspicious. But within days of its discovery, Flynn’s own actions had created reason for far greater concern that the incoming NSA had made this call.

At first, the Flynn unmasking led to deference to him, albeit with concerns about sharing intelligence with (just) him

When Russia did not respond to the December 2016 sanctions, per Jim Comey’s testimony, the Intelligence Community tasked its members to learn why not.

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

Some days later, the FBI provided an answer: because someone had called up Russia and asked them not to escalate, and days later Russia had called up and told the same person that Vladimir Putin had not responded because of his call. Imagine the possible implications of this call without the identity. The call could reflect an amazingly powerful private individual who for some reason had the ability to make Vladimir Putin to take action against his stated interests. Or it could reflect something fairly routine. You had to know who made the call to figure out which it was.

In his testimony, Comey made it clear that, 1) they did unmask Flynn’s name but 2) the FBI issued no finalized report on this, meaning they were protecting the discovery from wider dissemination.

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

Sally Yates’ 302 describes how Obama responded. He stated specifically that he wanted no more follow-up information, but he did want advice on whether his White House should treat Flynn differently as a result.

After the briefing, Obama dismissed the group but asked Yates and Comey to stay behind. Obama started by saying he had “learned of the information about Flynn” and his conversation with Kislyak about sanctions. Obama specified he did not want any additional information on the matter, but was seeking information on whether the White House should be treating Flynn any differently, given the information.

[snip]

Yates recalled Comey mentioning the Logan Act, but can’t recall if he specified there was an “investigation.” Comey did not talk about prosecution in the meeting. It was not clear to Yates from where the President first received the information. Yates did not recall Comey’s response to the President’s question about how to treat Flynn.

A letter Congress sent to Susan Rice quoting from her own letter to the file makes it clear that Obama explicitly stated he wanted no involvement in any law enforcement matters. He just wanted to know whether the Administration should limit how they would share classified information with Flynn during the transition.

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Corney and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

[redacted]

The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.

As to DOJ, at first Mary McCord treated this just as Republicans would want: by assuming this was just the normal pre-inauguration outreach one would expect from an incoming National Security Advisor.

It seemed logical to her that there may be some communications between an incoming administration and their foreign partners.

There are several takeaways from this record. We don’t know exactly what the transcripts say (and neither did some of the people involved), but this reaction is entirely inconsistent with Flynn saying anything to Kislyak to indicate he was operating on Trump’s orders. If he had, then Obama would not have had a concern about sharing information with Flynn and only Flynn. If it was clear Trump was involved, Obama’s concerns would be mitigated because Trump constitutionally would be entitled to this anyway. There’s no evidence Flynn made it clear he had Trump’s sanction to make these calls.

These actions also make it clear that, while the FBI responded to this as they would any counterintelligence investigation, both Obama and Rice were very careful about respecting the transition of power. The redacted passage in Rice’s letter is consistent with Obama adopting some caution, but deferring any more drastic measures unless, “anything changes in the next few weeks.”

From January 15, 2017 to the present, the public record has always been consistent with Flynn deciding to make the call on his own — and possibly acting rogue

Ten days after the Obama Administration adopted a cautious response to learning of Flynn’s calls, something did change.

The Vice President went on Face the Nation and told a journalist that he had asked Mike Flynn and Flynn denied speaking about sanctions at all.

MIKE PENCE: I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.

JOHN DICKERSON: So did they ever have a conversation about sanctions ever on those days or any other day?

MIKE PENCE: They did not have a discussion contemporaneous with U.S. actions on–

JOHN DICKERSON: But what about after–

MIKE PENCE: –my conversation with General Flynn. Well, look. General Flynn has been in touch with diplomatic leaders, security leaders in some 30 countries. That’s exactly what the incoming national security advisor–

JOHN DICKERSON: Absolutely.

MIKE PENCE: –should do. But what I can confirm, having spoken to him about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.

From that moment to this day, the record is consistent with Mike Flynn working without the knowledge of or prior sanction from Trump and Pence. I believe Flynn did have prior sanction from Trump, but I believe that only because I think Trump and Flynn have hidden that detail for years. But because Flynn and KT McFarland, at least, told Mueller’s prosecutors that they had no memory of consulting with Trump about what to say to Kislyak ahead of time and Trump has categorically denied it, the public record says that Flynn made the decision both to undermine the official policy of the United States and decide what policy to pursue after consulting with a few Transition aides, but not Trump himself, which was a key conclusion of this part of the Mueller Report.

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.

To be clear, starting in November 2017 — ten months after Obama’s people got Flynn’s name unmasked — Flynn and KT McFarland for the first time started admitting that Flynn had consulted with Trump’s staff at Mar-a-Lago before calling Kislyak, after denying it for that time. (This passage is largely sourced to a November 17, 2017 Flynn interview and a December 22, 2017 McFarland interview.)

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252 During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election. 1253 McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians.1254 McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1255 President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. 1256 McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. 1257

So Flynn had the input of Michael Ledeen, McFarland, and through McFarland, the input of Transition Team members at Mar-a-Lago.

But — as I lay out in this post — the timeline laid out in Mueller’s deliberately unclear account shows no consultation between Flynn and Trump, or even McFarland and Trump, before the call. Someone may have mentioned that Flynn was making the call in a briefing Trump attended, but there’s no evidence Trump provided input on what he should say. Moreover, by the time of that briefing, Flynn appears to have already made the first call. McFarland reported to Flynn on the briefing in the same call where he told her what had transpired on his call.

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: [Transition Team Member] Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland calls Flynn, but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

Sometime in here but the Report doesn’t tell us precisely when: Flynn talks to Michael Ledeen, KT McFarland, and then Kislyak. [my emphasis]

4:43PM: McFarland emails other transition team members saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

After the briefing: McFarland and Flynn speak by phone. Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

Moreover, the record shows that, after Flynn reported back to McFarland after Kislyak told him Russia would not respond because of the call Flynn made, he sent an email specifically designed to cover up that Kislyak had said so.

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

Not only did Trump say, shortly after he fired Flynn, that he did not direct Flynn to discuss sanctions with Kislyak (though he said he would have directed him to do so if he wasn’t already doing it), but according to the public record, Flynn claims to have first told Trump he may have spoken about sanctions on 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. 193 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. 195 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions.196

The record also shows that, after Trump asked Reince Priebus to get KT McFarland to write a statement asserting that Trump had not spoken with Flynn before the call, she declined to do so because she didn’t know whether it had or not and John Eisenberg advised she not do so because it would make her Ambassadorial appointment look like a quid pro quo (which recently released 302s makes it look like).

Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256 P

255 KTMF _ 00000048 (McFarland 2/26/ 17 Memorandum for the Record); McFarland 12/22/ 17 302, at 17.

256 KTMF _00000047 (McFarland 2/26/ 17 Memorandum_ for the Record) (“I said I did not know whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”); McFarland 12/22/ 17 302, at 17.

In short, even today, there is no evidence that Flynn had any permission from Trump to make this call. For over three years, Flynn and Trump have insisted he did not, which makes the significance of the intercept very different.

The public record, over three years later, is that Mike Flynn called up the country that just attacked us and — with no permission from Trump to do so — undermined the foreign policy of the United States.

So two things happened with this intercept.

At first, the fact that it was made by the incoming National Security Advisor led top DOJ officials to treat it with deferral. That is, they decided the meaning and the context was that of an incoming NSA calling foreign countries, and therefore fairly routine.

But ten days later, the transcript would look like something entirely different, the incoming NSA — who had received direct payments from Russia in the years leading up to this action — acting on his own with the Russian Ambassador. The President specifically denied having any role in the calls and fired Flynn (though said he didn’t mind the call). He went to some lengths to create a record to substantiate that he had not spoken to Flynn about it.

It would take ten months before prosecutors would have testimony (they had call records reflecting calls by March and probably had emails by August 2017) reflecting any consultation on Flynn’s part with any of his colleagues. Until they got that testimony, Flynn would have looked like had gone rogue, and decided to not only undermine Obama’s policy, but to set Trump’s policy, all on his own.

Either of those situations would justify unmasking someone’s identity. In either one of those situations, the FBI and other national security officials would have an obligation to track who was undermining the punishment for an attack by a hostile government, whether they deferred to it (in the case for the period when it seemed routine outreach) or investigated it (once it became clear the official was lying about it).

To suggest or even parrot, as Trump’s lackeys are, that this was a partisan decision suggests the United States should ignore when top national security officials appear to go rogue, undermining the current Administration without any evidence of sanction from the incoming one.

Mike Flynn Collaborator Barbara Ledeen’s Past Role in Producing “New” Evidence

There are two grounds on which Emmet Sullivan, even ignoring other procedural grounds, might reject the substance of Bill Barr’s motion to withdraw the Mike Flynn prosecution.

Most of the focus has been on materiality. The Timothy Shea-signed motion’s argument about materiality is thin and conflicts with arguments Bill Barr’s DOJ made on the same issues last fall. More importantly, the argument relies on a claim that — as I noted this morning — the government not only didn’t substantiate by citing to the call transcripts, but which the government actually provided evidence that rebuts the claim.

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI.

In a NYT op-ed over the weekend, Mary McCord refuted the materiality claims made in the filing. In a WaPo op-ed, Chuck Rosenberg recites the long list of people who have already said the lies were material:

  • Donald Trump
  • Mike Pence
  • Sally Yates
  • Mary McCord
  • Mueller’s prosecutors
  • Judge Rudolph Contreras
  • Judge Emmet Sullivan
  • Mike Flynn

Sullivan has plenty before him to dismiss the DOJ’s new claims about materiality.

Still more questions about whether any of this is “new”

But there’s another problem with the motion to dismiss, one I keep coming back to. Central to the motion’s logic is that DOJ found “new” information that caused it to change its mind about the Flynn prosecution.

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.” Ex. 1 at 4, FBI FD-1057 “Closing Communication” Jan. 4, 2017 (emphases added)

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

[snip]

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

This motion cites to two documents (one, two) from Covington that would be new to the government. The Bates numbers on both, however, indicate this was almost certainly not new production to Flynn (the belated discovery Covington turned over in recent weeks should have Bates numbers in the 600,000 range, and these have Bates’ numbers under 200,000; moreover, Covington had already turned over everything pertaining to Bijan Kian, as any discussion of Mike Jr would be). If Flynn had them, he could have submitted them last fall or in January when he made his own arguments about being railroaded — but had he done so, it would have been (further) proof Flynn perjured himself if they showed the government had made such promises, because he denied it the first time he pled guilty. Moreover, these two documents are entirely unrelated to anything in this motion, which pertains exclusively to Flynn’s lies in his January 2017 interview.

The other newly disclosed documents (the Shea motion cites the same ones twice, a hint that whoever actually wrote the motion wasn’t really relying on the documents) are all FBI documents, and so, by definition, were all in possession of the government. While DOJ might try to claim that DOJ didn’t have the documents, the documents pertain to two issues — January 23, 2017 and January 24, 2017 meetings discussing what to do about Flynn, and communications between Peter Strzok and Lisa Page — that have been repeatedly reviewed by DOJ, which means it is exceedingly likely the materials were in possession of and and had been reviewed by DOJ at least once if not several times. Moreover, the Shea motion suggests these files were previously classified, which is a tell that Shea has lost track of where the government, which controls classification, ends and Mike Flynn’s defense team begins.

Plus, in his CBS interview last week, Billy Barr confessed that John Durham has already been looking at this.

I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and ’17. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.

And that is part of John Durham, U.S. Attorney John Durham’s portfolio. The reason we had to take this action now and why U.S. Attorney Jeff Jensen came in was because it was prompted by the motions that were filed in that case. And so we had to sorta move more quickly on it. But John Durham is still looking at all of this.

If Durham received these documents anytime before November 1 (Sidney Powell first demanded such things in a letter to Bill Barr sent on June 6, 2019), then the defense of Flynn’s prosecution that Bill Barr’s DOJ submitted last November would have had an opportunity to incorporate these documents. In either case, that defense of the prosecution rebutted both claims made here. It called the investigation legitimate. It specifically rebutted the claim that Flynn had been caught in a perjury trap.

Congressional staffers were tipping Flynn about which files to demand

But Judge Sullivan has in his possession a more damning piece of proof that DOJ has been aware of these documents — and Mike Flynn’s interest in them — even before Flynn pled guilty again on December 18, 2018.  Back in October, the government submitted an exhibit of a Rob Kelner email forwarding Brandon Van Grack and Zainab Ahmad an email he received from Senate Judiciary Committee staffer, Barbara Ledeen. In it, Ledeen tells Kelner that Derek Harvey, one of the House Intelligence Committee staffers who had dug through everything they could find at DOJ to claim abuse in the Russian investigation, urged her to get Judge Sullivan to ask for Jim Comey and Peter Strzok’s HPSCI transcripts so his boss, Devin Nunes, could air the transcript on Fox News (he was also one of the Nunes staffers who met with Rudy Giuliani’s Ukrainian grifters). The government submitted as proof that this is all about ginning up the base (though they didn’t describe it in those terms).

Flynn pled guilty again after being alerted to one of the “new” documents

Flynn’s lawyer received this email five days before Flynn stated, under oath, that he knew he was giving up his right to complain about the circumstances of his interview forever.

THE COURT: Do you wish to challenge the circumstances on which you were interviewed by the FBI?

THE DEFENDANT: No, Your Honor.

THE COURT: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?

THE DEFENDANT: Yes, Your Honor.

And then Flynn pled guilty again.

Comey’s transcript is one of the things DOJ submitted last week to justify deviating from DOJ’s judgment on November 1, 2019, that Flynn’s prosecution was just. It doesn’t say what Harvey claimed it said, but instead says the experienced agents didn’t find Flynn exhibited any indications of deception.

And the agents — and the reason I mention their experience is because I talked to them about this — they discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.

That said, it’s proof that DOJ has long been aware of concerns about the claimed content of this and other filings relied on last week.

But that’s not why I find this email particularly damning — and worthy of further attention.

Barbara Ledeen helped Flynn to try to find Hillary’s emails; her spouse helped Flynn prep for his call with Kislyak

As noted, Barbara Ledeen is a staffer on the Senate Judiciary Committee, meaning she worked for Chuck Grassley  and now works for Lindsey Graham. She’s almost certainly the mastermind of their efforts to declassify every little thing that might undermine the Mueller investigation.

I’m fine with transparency — though given the way Ric Grenell hid Sergey Millian’s name in a transcript on the Russian investigation and given the way Bill Barr has made claims about the Flynn transcripts without declassifying them, we’re not getting it.

But Ledeen’s role goes beyond getting things that undermine Trump’s critics while hiding key facts that wouldn’t.

As the Mueller Report laid out, both she and her husband Michael play key roles in this saga. While a Senate staffer, Ledeen started searching for Hillary’s missing emails as early as 2015. She wanted to reach out via cut-outs to hostile intelligence services and ultimately claimed to have found emails on the dark web.

Barbara Ledeen and Peter Smith were among the people contacted by Flynn. Ledeen, a long-time Senate staffer who had previously sought the Clinton emails, provided updates to Flynn about her efforts throughout the summer of 2016.266 Smith, an investment advisor who was active in Republican politics, also attempted to locate and obtain the deleted Clinton emails.267

Ledeen began her efforts to obtain the Clinton emails before Flynn’s request, as early as December 2015.268 On December 3, 2015, she emailed Smith a proposal to obtain the emails, stating, “Here is the proposal I briefly mentioned to you. The person I described to you would be happy to talk with you either in person or over the phone. The person can get the emails which 1. Were classified and 2. Were purloined by our enemies. That would demonstrate what needs to be demonstrated.”269

Attached to the email was a 25-page proposal stating that the “Clinton email server was, in all likelihood, breached long ago,” and that the Chinese, Russian, and Iranian intelligence services could “re-assemble the server’s email content.”270 The proposal called for a three-phase approach. The first two phases consisted of open-source analysis. The third phase consisted of checking with certain intelligence sources “that have access through liaison work with various foreign services” to determine if any of those services had gotten to the server. The proposal noted, “Even if a single email was recovered and the providence [sic] of that email was a foreign service, it would be catastrophic to the Clinton campaign[.]”

In a sane world, Ledeen would have been fired when this all became public, not least because she engaged in some of the same kinds of behavior that the frothy right complains Christopher Steele did (given that she was pursuing these issues in her oversight role, too, it’s unclear how well this effort was bracketed off from her taxpayer funded work). Instead, she’s leading the fight to discredit the investigation into this and other efforts.

The role of Ledeen’s husband is even more notable. The first person Flynn spoke to after Russia reached out to him — even before he spoke with his Deputy, KT McFarland, was Ledeen, who was then a Transition staffer.

Russia initiated the outreach to the Transition Team. On the evening of December 28, 2016, Kislyak texted Flynn, “can you kindly call me back at your convenience.”1229 Flynn did not respond to the text message that evening. Someone from the Russian Embassy also called Flynn the next morning, at 10:38 a.m., but they did not talk. 1230

[snip]

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242

While Michael Ledeen’s call records were subpoenaed, there’s no record Mueller interviewed him about his calls or even tried.

There are many reasons to believe that little, if any, of the documents relied on last week were new to DOJ at all, especially not new since the November 2019 filing rebutting all the arguments DOJ is now making. Just as importantly, the history in this case going back years is that “new” is not a legal term, but instead a propaganda one, one designed to feed Fox News. And it’s a propaganda effort led, in part, by someone deeply, personally implicated in Flynn’s actions.

Without affirmative proof any of this is new (and DOJ has offered none), DOJ has no procedural basis to flip-flop from the position Bill Barr’s DOJ argued aggressively last year. In the past, at least, by “new” Flynn’s backers and collaborators really only meant “Fox News.”

DC Bar No. 472845 Argued Flynn’s Prosecution Was Legitimate before DC Bar No. 472845 Argued It Wasn’t

As CNN reported last week, Acting DC US Attorney Timothy Shea filed last week’s motion to dismiss the Flynn prosecution under the bar number of his predecessor, Jesse Liu. That means last week’s filing was filed under the same bar number …

… as a filing Bill Barr’s DOJ submitted under the same bar number on November 1, 2019.

That filing, submitted under the supervision of a Senate-confirmed US Attorney, responded to a half-assed motion to dismiss that Flynn’s lawyers had slipped into a Brady motion. As such, it refuted Flynn’s argument that his prosecution should be dismissed for the same reasons that DOJ adopted last week.

The motion, submitted by Bill Barr’s DOJ, noted that Mike Flynn knew all the things he had invoked last fall in arguing to dismiss his case — including claims he was ambushed in his January 24, 2017 interview — when he pled guilty for a second time on December 18, 2018 and admitted he could never again complain about the circumstances of his interview.

Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant.

[snip]

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

That motion, submitted by Bill Barr’s DOJ, argued the circumstances of the January 24, 2017 interview were proper. The filing specifically stated that the FBI was engaged in a legitimate investigation. It stated that “agents were not in search of a crime” and specifically denied trying to trap Flynn in a lie.

Nor did law enforcement officials engage in “outrageous” conduct during the criminal investigation and prosecution of the defendant. On January 24, 2017, when the defendant lied in his interview, the FBI was engaged in a legitimate and significant investigation into whether individuals associated with the campaign of then-candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election. The defendant was not “ambushed” at the interview, and the interviewing agents certainly did not engage in “outrageous” conduct that undermines the fact that he lied. Reply at 1, 7. The documents produced by the government in discovery show that the FBI asked the defendant for permission to conduct the interview, informed the defendant that the questions would concern his “contacts with the Russian Ambassador to the United States,” interviewed the defendant in his own office, and afforded him multiple opportunities to correct his false statements by revisiting key questions. See, e.g., Memorandum of Andrew McCabe dated January 24, 2017 (Doc. 56-1) (“McCabe Memo”); Strzok 302. Tellingly, the defendant supports his allegation by selectively quoting from documents. For example, the Reply states that, according to the Strzok 302, the agents decided they would not confront the defendant if he did not confirm his statements. See Reply at 8. But the Reply omits the sentence in the Strzok 302 preceding that reference, where DAD Strzok explained that “if Flynn said he did not remember something they knew he said, they would use the exact words Flynn used . . . to try to refresh his recollection.” Reply, Ex. 6 (emphasis added).

The interviewing agents’ handwritten notes and report provide further confirmation that the defendant was not “trap[ped].” Reply at 1. The interviewing agents repeatedly sought to prompt the defendant to provide a truthful response. When the defendant first failed to mention his calls with the Russian Ambassador about the UN Vote and U.S. Sanctions, the agents raised the topics themselves. When the defendant then denied making a request to the Russian Ambassador about the UN Vote, the agents nevertheless asked him if he made any comment to the Russian Ambassador about voting in a particular way. And when the defendant specifically denied talking at all about U.S. Sanctions, the agents nevertheless asked him whether the Russian Ambassador told him that the Russian government had taken the defendant’s request into account. Such conduct demonstrates that the agents were not in search of a crime, but the truth about what had happened and why—which the defendant failed to provide. Had they wanted to “trap[]” the defendant into a false statement charge, they would not have prompted him repeatedly to correct his statements. [My emphasis]

D.C. Bar No. 472845 has already weighed in on whether Mike Flynn’s prosecution was legitimate. D.C. Bar No. 472845 made an aggressive defense of this prosecution little more than six months ago.

Given that Bill Barr’s DOJ already argued this prosecution was proper, given that Bill Barr’s DOJ has provided no evidence any of this is new — on the contrary, Bill Barr’s DOJ has already argued Flynn knew all about this before he pled guilty a second time — Judge Emmet Sullivan might be forgiven for finding the initial argument D.C. Bar No. 472845 made in his court more persuasive than the one D.C. Bar No. 472845 made last week.

Bill Barr Did Not Provide the Most Important Exhibit to His Mike Flynn Dismissal Motion: The Call Transcripts

There’s a giant hole in Bill Barr’s motion to dismiss the Mike Flynn prosecution: the call transcripts of the General’s calls with Sergey Kislyak.

The Timothy Shea-signed motion claimed that the transcripts showed “arms-length communications” which provided no suggestion that Flynn might be “directed and controlled” by Russia.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2. They provided no factual basis for positing that Mr. Flynn had violated FARA. Nor did the calls remotely transform Mr. Flynn into a “viable candidate as part of the larger … umbrella case” into Russian interference in the 2016 presidential election. Ex. 1 at 3.

Significantly, Shea doesn’t cite the transcripts here! He cites the Electronic Communication opening the investigation against Flynn and the draft EC closing the Flynn case written 20 days before the Flynn interview. Moreover, he mis-cites the opening EC so as to suggest (as he does elsewhere in the memo), falsely, that Flynn was only being investigated under FARA, which usually has a public component, and not 18 USC 951, which more often does not.

This, then, is an assertion for which Barr provides no evidentiary backup.

Barr makes the assertion in a filing that includes several pieces of evidence that directly conflict with this judgment.

As I’ve noted, Mary McCord thought the idea of a call between the incoming National Security Advisor and the Russian Ambassador was “logical” until she reviewed the transcripts of the calls. “After reading them, she felt they were ‘worse’ than she initially thought,” in part because, “Flynn proactively raised the issue of sanctions.”

The Sally Yates 302 seems to suggest that as soon as Andrew McCabe read the transcripts it was clear Flynn was lying because he didn’t really engage in the conversation until sanctions came up (a view that is entirely consistent with McCord’s view, though Barr did not provide McCabe’s 302 for us to compare more directly).

This passage may also suggest that Peter Strzok and Joe Pientka did not read the full transcripts of the calls before the interview, which would explain why they might have relied on whether Flynn gave indications he was lying. If that’s true, it would also undermine other key claims made in this motion, most notably that the agents knew everything the transcripts said.

As for Yates herself, she provided Don McGahn several reasons why she believed these transcripts were troubling. Part of that description, as well as two of the examples she provided to substantiate the description, are redacted.

But Yates is specific: the “back and forth” between Kislyak and Flynn was contrary to the descriptions Flynn had offered publicly about the calls. Importantly, Yates’ description rebuts the Shea motion’s claim that this was an “arms-length” conversation.

Which is to say, in a key passage dismissing the possibility that the call transcripts included evidence that Flynn might have a relationship with Russia that could damage national security, the motion provides no evidence and in fact mis-cites something inapt as proof. But elsewhere, the filing does provide evidence about the call transcripts, and that evidence directly refutes the claim. Moreover, the filing redacts a number of other passages that go directly to the claim.

Importantly, whether or not the transcripts showed some reason to think Flynn’s relationship with Russia might affect national security is not an issue that Barr can invoke exclusive Executive judgment on, something on which judges generally defer to the Executive. The record shows that two Acting Attorneys General — one (Rod Rosenstein) appointed by Trump — already deemed the transcripts to include such evidence. Here, Barr isn’t even on the record making the claim. Just an Acting US Attorney who has not been Senate confirmed is.

A year ago, Judge Emmet Sullivan ordered the government to provide the transcripts of the calls between Flynn and Kislyak.

The government is hereby ORDERED to file on the public docket in this case the transcript of the “voicemail recording” referenced in the 75 Addendum to Government’s Memorandum in Aid of Sentencing and the transcripts of any other audio recordings of Mr. Flynn, including, but not limited to, audio recordings of Mr. Flynn’s conversations with Russian officials, by no later than May 31, 2019.

In response, the government obliquely said no, because they were not relying on those recordings for sentencing, effectively pointing out that no claims entered into evidence had relied on the transcripts (by the time Flynn pled guilty, he himself had provided evidence that he lied, and so they didn’t need to rely on the transcripts).

The government further represents that it is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record.

Now, however, the transcripts are utterly central to the claims the government is making. Indeed, the only evidence about the transcripts submitted with this motion rebuts the government’s claim.

Emmet Sullivan would be totally within his authority to require the government to provide the actual evidence on which they make at this point unsubstantiated claims in this filing.

Mike Flynn has been demanding these transcripts for quite some time. Given the declassification spree that Barr and Ric Grenell have been on, I would imagine they would have been made public if they helped Flynn at all. So I’m guessing Yates and McCord provided a more accurate description of these transcripts than Timothy Shea.

Bill Barr Not Only Overrode Emmet Sullivan’s Brady Ruling, He Explicitly Pre-Empted Sullivan’s Covington Review

In a post last Monday, I laid out four different ways that Billy Barr was pursuing to guarantee that Mike Flynn would be excused for calling up the country that had just attacked us in 2016 and asking them not to worry about the sanctions imposed as a result. In it, I described how, in the wake of Emmet Sullivan’s decision that a bunch of files Flynn had demanded neither counted as Brady material nor merited dismissal, Barr had asked St. Louis US Attorney Jeffrey Jensen to review the files at issue in Sullivan’s ruling.

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

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

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

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

In it, I underestimated Barr’s brazenness. He went further than ordering prosecutors to withdraw their opposition to Flynn’s motion to dismiss. He affirmatively moved to withdraw the case, with prejudice. Notably (given Barr’s past misrepresentation of what prosecutors have said), DOJ did not include anything in writing from Jensen’s review. While Jensen has issued a short statement in support of the dismissal, neither the public nor Sullivan have seen the so-called analysis Jensen purportedly did in this review.

Still, I was totally correct that “at any moment” Barr might order prosecutors to “effectively wipe away the prosecutor of General Flynn.”

The post laid out some key issues of timing, however. Of particular note, on Friday, prosecutors would have submitted a filing explaining what they planned to do with the 600 pages they had received from Covington & Burling elaborating on documents already public that show Flynn didn’t fully disclose things he later admitted to under oath. Given what was already public — which showed that even Flynn’s sworn declaration in his motion to dismiss did not accurately present Covington’s representation — those documents, if made public, would likely be very damning to Flynn.

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

[snip]

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

That is, a week ago, I noted that Flynn’s efforts to blow up his prosecution might soon backfire.

I also noted that Barr had two parallel efforts to undo the prosecution of Mike Flynn: Jensen’s, and John Durham’s. John Durham has been reviewing the first six months of the Russian investigation for a year already. He has had access to this information for that entire time. But even on top of the Durham review, Barr appointed Jensen.

In his interview the other day, Barr bragged about why he had done so. He had to “move quickly,” the Attorney General admitted, because of the motions that were filed in this case.

I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and ’17. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.

And that is part of John Durham, U.S. Attorney John Durham’s portfolio. The reason we had to take this action now and why U.S. Attorney Jeff Jensen came in was because it was prompted by the motions that were filed in that case. And so we had to sorta move more quickly on it. But John Durham is still looking at all of this.

Except Barr didn’t allow those pleadings to play out.

Indeed, Barr acted on Thursday to prevent the ethical consequence of Flynn’s motion to dismiss based off a claim Covington was incompetent to occur, the public disclosure of those filings showing Covington’s representation of Flynn.

Billy Barr took a breathtaking step on Thursday to pre-empt Sullivan’s review of whether Covington really provided Flynn incompetent representation, or instead advised him wisely to dodge the accountability of his secret work for a frenemy government.

As such, DOJ has overridden the authority of an Article III judge at least twice: Sullivan’s previous ruling on Brady, and his upcoming review of Flynn’s claim that his lawyers were incompetent.

Barr said he was tasking Jensen to do more.

Well, you know, I don’t wanna, you know, we’re in the middle of looking at all of this. John Durham’s investigation, and U.S. Attorney Jensen, I’m gonna ask him to do some more work on different items as well.

Given Barr’s unbridled efforts to excuse Flynn’s actions secretly working with foreign governments to undermine the stated policy of the United States, I suspect he may ask Jensen to invent some excuse to back out of the government appeal in Flynn’s partner, Bijan Kian’s case.

Update: I also predicted the tie between the dangers of the motion to withdraw and the Jensen review in February, when it became public.

Back in June, it seems clear, Bill Barr told Sidney Powell it would be safe to blow up Mike Flynn’s plea deal, perhaps believing that things he saw on Fox News — including a bunch of hoaxes that Sara Carter had started, and which FBI had already investigated multiple times. Powell proceeded to make Flynn’s legal woes worse and worse and worse. Alarmingly, she had Mike Flynn submit a sworn statement that radically conflicts with other sworn statements he already made. In other words, based on Bill Barr apparent reassurances that Flynn should pursue an absolutely insane legal strategy, Flynn turned his probation sentence into additional perjury exposure.

And so now Bill Barr is sending off his minions to try to undo the damage that Flynn and Powell created for themselves by trying to suggest that multiple lies to the FBI somehow amounted to an ambush because Flynn was so sure the FBI was on his side that he lied convincingly.

In the wake of Bill Barr’s intervention last week, Flynn moved to withdraw all his pending motions, without prejudice, including the motion to withdraw his guilty pleas. Given that, as part of that motion, Flynn submitted a sworn filing that materially conflicts with other sworn statements Flynn has made before this and Judge Contreras’ court, as well as before a grand jury, and given that Barr went out and admitted on TV that those filings were the reason he acted in such an unprecedented fashion to pre-empt an Article III judge’s decision, it seems that Barr’s actions actually don’t affect that motion to withdraw. Sullivan could reject that, since parts of it are unaffected by Barr’s actions.

Unlike Barr, Judge Sullivan is not predictable. So I’m not predicting that will happen. But among the many pending requests before Sullivan is a request to unring yet another Flynn statement that might be a material lie, one he does not have to accept.

The Logan Act Is Just the Cherry on Mike Flynn’s Foreign Agent Sundae

There’s an ironic line in Billy Barr’s CBS interview this week, where he acknowledges that prosecutors can become too wedded to a particular outcome.

These are very smart people who were working in the special counsel’s office, and in senior levels of the FBI. So what drove them here?

Well, I think one of the things you have to guard against, both as a prosecutor and I think as an investigator, is that if you get too wedded to a particular outcome and you’re pursuing a particular agenda, you close your eyes to anything that sort of doesn’t fit with your preconception. And I think that’s probably the phenomenon we’re looking at here.

That’s because Barr and Sidney Powell have the frothy right chasing the Logan Act like six year olds after a soccer ball as if that was the only basis to interview Mike Flynn on January 24, 2017. It’s unclear whether frothy commenters have been duped by Barr’s guile, or they just haven’t read the record.

The record is crystal clear, however: When the investigation into Mike Flynn was opened on August 16, 2016, he was being investigated as a witting or unwitting Agent of a Foreign Power (Barr’s DOJ — and DOJ IG — have both made the same error in suggesting this was just about FARA, but the investigation was also predicated under 18 USC 951). Timothy Shea conceded in his motion to dismiss the prosecution that that investigation was never closed. And evidence from three different contemporaneous witnesses — Jim Comey, Mary McCord, and Bill Priestap — say that’s why the FBI interviewed Flynn on January 24, 2017.

Bill Priestap made clear that they did this interview to find out whether Flynn was acting as an agent for Russia.

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

That’s what Comey said, too.

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

The Priestap notes that the frothy right is pointing to as proof of abuse makes quite clear that the point of the interview was not to create a perjury trap, but to see whether Flynn would be honest about his relationship with the Russians.

Bob Litt, who (per these same records) was the first person to raise the Logan Act, analyzed the ways that Timothy Shea’s motion conflicts with the FBI’s DIOG. He described the interview to be, first and foremost, about counterintelligence.

The attorney general and his minions are making the astounding argument that when the FBI—aware of extensive Russian interference in U.S. politics in order to benefit the Trump campaign—learned that the incoming national security advisor requested that Russia not respond to the sanctions that were imposed in response to that interference and then lied to other government officials about that, it could not even “collect information or facts to determine” whether this created a counterintelligence threat. This cannot be right. Even if the prior investigation into Flynn had been closed, which it had not, these circumstances at a minimum justified an assessment under standard FBI policy.

In fact, the department’s motion virtually concedes the point. It dismisses Flynn’s lies to Pence and Spicer by saying that “[h]ad the FBI been deeply concerned about the disparities between what they knew had been said on the calls and the representations of Vice President Pence or Mr. Spicer, it would have sought to speak with them directly, but did not.” But that would be a kind of investigative activity, and under the DIOG, either the FBI has a basis to investigate or it doesn’t. If the facts justified talking to Pence about Flynn, they justified talking to Flynn.

Once you have a predicated investigation into 18 USC 951, adding another potential crime (the Logan Act) does not change that the investigation into 18 USC 951 remained, per Shea, ongoing.

In his interview, Barr misrepresents the record to claim what Flynn did — undermining the punishment imposed on a hostile foreign country after they attacked us — was “laudable.”

They did not have a basis for a counterintelligence investigation against Flynn at that stage, based on a perfectly legitimate and appropriate call he made as a member of the transition. So.

[snip]

Let me say that, at that point, he was the designated national security adviser for President-Elect Trump, and was part of the transition, which is recognized by the government and funded by the government as an important function to bring in a new administration. And it is very typical, very common for the national security team of the incoming president to communicate with foreign leaders.

And that call, there was nothing wrong with it whatever. In fact, it was laudable. He– and it was nothing inconsistent with the Obama administration’s policies. And it was in U.S. interests. He was saying to the Russians, you know, “Don’t escalate.” And they asked him if he remembered saying that, and he said he didn’t remember that.

There are several problems with this claim.

For starters, at first, Mary McCord agreed with this take. She dismissed the call for the same reasons Barr still does — that this was just the typical communication between an incoming national security team and foreign leaders.

Two things changed her mind.

The first was the evidence that Flynn was lying about what he did to others in the incoming Administration.

It seemed logical to her that there may be some communications between an incoming administration and their foreign partners, so the Logan Act seemed like a stretch to her. She described the matter as “concerning” but with no particular urgency. In early January, McCord did not think people were considering briefing the incoming administration. However, that changed when Vice President Michael Pence went on Face the Nation and said things McCord knew to be untrue. Also, as time went on, and then-White House spokesperson Sean Spicer made comments about Flynn’s actions she knew to be false, the urgency grew.

It is normal for officials in incoming Administrations to reach out to foreign leaders. But it is not the norm for incoming officials to freelance, to set policy that no one else in the Administration knows about. And the public evidence at the time the FBI interviewed Flynn was that he had done this on his own and was actively hiding it form his colleagues (as indeed the current record says he was).

The record that Barr distorted in this interview shows that FBI was in a holding pattern until there was public evidence that Flynn had lied to others in the Administration, which not only changed the calculus about warning the Administration, but created urgency to take an investigative step FBI might not otherwise have done.

The other thing that changed McCord’s mind about whether this was the normal pre-inauguration outreach was reading the transcript.

After reading them, she felt they were “worse” than she initially thought; she noted that her recollection of them is that Flynn proactively raised the issue of sanctions, and she feels it is hard to believe he would forget talking about something he raised himself.

Sally Yates described Flynn make a series of asks, some of which remain classified.

And McCord wasn’t the only one who responded that way. Once Mike Pence and Reince Priebus read the transcripts, Flynn was out the door the next day.

Notably, even though Ric Grenell is in the middle of a declassification spree, neither he nor Barr have chosen to declassify the actual transcripts here, even though Flynn has requested them repeatedly. Barr’s DOJ is also withholding other details that would describe the reaction of Administration officials to reading the transcript in the Buzzfeed FOIA. So it’s easy for Barr to claim this was normal, but a career prosecutor who read the transcripts said they weren’t, and Barr is deliberately withholding information that would let us test that claim.

This is why DOJ’s materiality argument fails, too. Had Flynn told the truth, the FBI might have had reason to treat this as the normal pre-inauguration contact. But once he lied, the FBI had more reason to continue investigating, to try to figure out why he lied. All the more so given that Flynn was hiding his other Foreign Agent relationship with Turkey at the time.

If Flynn’s behavior were, as Barr claims, “laudable,” then he would have simply admitted it. Once he lied about it, the FBI had more reason to suspect he had been freelancing, deliberately undermining American policy without the sanction and knowledge of others in the Trump Administration.

Only one thing explains Barr’s view, and it is damning. The FBI had reason to investigate anyway, and as Litt correctly lays out, these actions were solidly within the guidelines laid out in the FBI’s Domestic Investigations and Operations Guide. But the only way to conclude, as Barr has, that Flynn’s actions — calling up the Russian Ambassador and telling him not to worry about the sanctions imposed for helping Trump get elected — are not clear cut evidence that he was clandestinely operating as an Agent of Russia is if Trump told him to do it.

That doesn’t make it laudable. But it is as close as we’ve ever come to an admission that Flynn did this not just with the knowledge of, but on orders from, Trump. That’s probably why Trump is boasting about learning from Nixon right now: Because unlike Nixon, he got away with cheating to win an election.

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