June 2, 2020 / by 

 

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.


Damning New Details from Mary McCord and Sally Yates

I wanted to point to some details from documents — the Sally Yates and Mary McCord 302s — submitted by DOJ yesterday in their bid to get out of the Mike Flynn prosecution. DOJ presumably submitted them for the way they show Jim Comey acting like Jim Comey, taking actions without approval from political leadership at DOJ in a failed attempt to politicize something. That he had done so was known, these 302s provide DOJ’s side of that story.

The 302s provide a bit more detail about how alarming the Mike Flynn transcripts were, though. For example, before McCord saw the transcripts, she assumed Flynn’s calls were simply an incoming Administration reaching out to foreign counterparts.

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.

But when she actually read them, she realized they were worse than that. Specifically, she was surprised that Flynn had raised sanctions himself; the discussion didn’t come from Sergey Kislyak.

McCord did not recall exactly when she saw the transcripts of the Flynn calls, but believed she asked to see them after Pence’s statements about Flynn on Face the Nation. [Agent note: Pence was on Face the Nation on January 15, 2017.] McCord believed she probably had the transcripts by January 19, 2017, possibly having come over SIPRnet from Strzok. 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.

When Yates talked to Don McGahn about it, she described that one of the problems with the calls but that Flynn made specific requests of Kislyak. Given these redactions, they must include stuff beyond the two issues that appear in Flynn’s own 302: the sanctions and the UN request.

And it wasn’t just McCord who took this more seriously when she saw the transcripts themselves. Her 302 adds details (which were secondhand from McCabe) to this description from the Mueller Report:

Based on the evidence of Flynn’s contacts with Kislyak, McGahn and Priebus concluded that Flynn could not have forgotten the details of the discussions of sanctions and had instead been lying about what he discussed with Kislyak.202 Flynn had also told White House officials that the FB[ had told him that the FBI was closing out its investigation of him,203 but Eisenberg did not believe him.204

McCord describes how Pence went and got the transcripts from his Face the Nation appearance to compare with the Flynn transcripts. And Reince Priebus walked out of the room.

Pence, while reviewing, directed his Chief of Staff to get the transcript of his (Pence’s) Face the Nation interview, which he then compared to [redacted] transcripts. At one point in the meeting, Priebus said he’d seen enough and left the room.

And there are two more details about the White House response of interest. McCord specifically said, “Neither McGahn or Burnham gave any indication they had talked to anyone about the information.” She described that they had seemed “dumbstruck” by the news the previously day. But the following day, according to Yates, there was a very different tone to the meeting.

The second meeting was a distinct “tenor change” from the first. While the first meeting didn’t feel adversarial, McGahn started the second meeting with something like, “What’s it to DOJ if one White House official lies to another?” Yates was a little taken aback by that and explained again the same reasons for their concern that she had the day before. She told McGahn that there was more to this than one official lying to another, and Flynn’s actions themselves were problematic, especially when followed by lies and the public getting a false statement.

Of course, McGahn had talked to other people about the warning. He had spoken with Trump.

Finally, the day after Yates and McCord spoke to Don McGahn about it the second time, John Eisenberg emailed McCord using Flynn’s phone.

On January 28, 2017, McCord received an email from Flynn’s email account, but signed by John Eisenberg, Deputy Counsel for the President for National Security Affairs. The email stated it was a follow-up to McCord’s interactions with McGahn, and asked for a time to have a secure call. Given that the email was from Flynn’s email account, McCord opted not to reply to the email directly.

[snip]

When McCord and Eisenberg connected on the telephone on January 29, 2017, Eisenberg told McCord he had been in Flynn’s office prior to his sending the email to McCord and an assistant had switched his and Flynn’s telephones when giving them back. He explained they had the same password, so Eisenberg accidentally sent the email to McCord from Flynn’s phone.

While the phone confusion is easily explained — Flynn’s office would be a SCIF, so phones would be left outside — the claim they shared passwords is inconceivable.

And, of course, it makes it clear that once Eisenberg got involved, he (the same guy who hid Trump’s Ukraine transcript) started working directly with Flynn on the pushback.


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

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

Except none of the information was new.

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

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

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

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

DOJ may not have had two FBI documents

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

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

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

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

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

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

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

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

Emmet Sullivan reviewed two of these 302s

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

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

[snip]

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

[snip]

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

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

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


Exhibits

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Today’s version redacts that line as classified.

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

Shea makes three arguments:

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

Shea claims there’s new material but points to none

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

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

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

[snip]

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

Except Shea never actually describes what is “new.”

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

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

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

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

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

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

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

That’s what Comey said, too.

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

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

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

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

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

He does that, first of all, by arguing that when the FBI discovers you’ve called up the foreign country that just attacked us and told them not to worry about it, and then the Vice President makes it clear you’ve lied about that, did not justify extending an investigation into whether Flynn was secretly working for Russia.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime. This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one, see Ex. 7 at 1-2, as well as its ongoing inability to espouse a consistent justification for its probe in conversations with DOJ leadership, See Ex. 3 at 5. In fact, Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation. Id.

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

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

Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3.

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

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

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

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

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

Shea pretends Flynn’s guilty pleas don’t count

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

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

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

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

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

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

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

So to sum up:

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

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

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


As Predicted, Billy Barr Bolloxed the Mike Flynn Prosecution

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But this detail is completely new:

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

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

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

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

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

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


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

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

Flynn’s sworn statements

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

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

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

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

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

The four efforts to reverse Flynn’s guilty pleas

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

Motion to withdraw his guilty plea

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

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

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

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

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

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

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

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

Motion to dismiss for prosecutorial misconduct

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

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

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

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

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

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

The Jeffrey Jensen review of Flynn’s prosecution

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

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

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

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

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

The inevitable pardon

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

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

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

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

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

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

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

Update: Corrected how long Covington worked for Flynn.

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

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

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

Copyright © 2018 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/mueller-probe/page/4/