Setting the Scene: Today’s Flynn Hearing

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I’m still doing household chores so haven’t read the Judge Emmet Sullivan response and government and Flynn reply briefs at the DC Circuit in Mike Flynn’s petition for a writ of mandamus as closely as I would have liked.

But before today’s hearing, I wanted to recall what the posture is.

The question before the Circuit should be whether Flynn is entitled to any help at the DC Circuit. It should be whether Sullivan has taken an action that is so egregious — and so injures Flynn — that it merits the DC Circuit weighing in to overturn Sullivan’s action.

The only action Sullivan has taken, though, is appointing an amicus, something that is soundly within normal judicial discretion.

The Circuit — with a panel including the shamelessly hackish Neomi Rao — ordered the sides to brief whether Sullivan had to grant DOJ’s motion to dismiss right away, what should be a premature question in any case. Effectively, Flynn has argued that DOJ had a reason to dismiss the prosecution and DOJ has argued that this is a separation of powers issue (in both its response and reply, the government has argued against what it argued before Sullivan and what Bill Barr has conceded publicly). Even while strictly arguing the mandamus issue (including the DC Circuit’s approach to Roger Stone’s similar premature petition for mandamus, which was properly rejected), Sullivan’s response also raised the outstanding allegations against Flynn on his Turkish influence peddling.

All of which is to say the arguments (Flynn, DOJ, and Sullivan will have have 15 minutes to argue) likely won’t be addressing the legal issues that should be before the court, and Flynn and DOJ have already made claims that aggressively conflict with the record in this case. One detail Flynn has relentlessly obscured is what information was available before Flynn allocuted to his guilt a second time; basically everything that is public already was known to him.

Add in the fact that DOJ is now claiming that a judge cannot stop DOJ from dismissing a prosecution of the President’s buddy for no good reason, and we should expect that today’s hearing will pose a grave risk to the rule of law in this country.

You can stream the hearing here.

Appointed Amicus John Gleeson Argues DOJ Engaged in Gross Prosecutorial Misconduct in Moving to Dismiss Flynn Prosecution

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I’m painting and doing other chores today and so my analysis of the amicus John Gleeson submitted in the Mike Flynn prosecution will have to wait. I did a thread of my initial read of the filing here.

The short version, however, is this.

Gleeson argues there are two bases for denying a motion to dismiss a prosecution: the prosecutor’s reasons for doing so, or clear evidence of gross prosecutorial abuse.

Guided by Rule 48(a)’s text and history, as well as separation of powers principles, there are two grounds for denying leave of court. First, “the requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons.” Ammidown, 497 F.2d at 622. Those reasons must be real and credible; where they are demonstrably pretextual, the court may deny leave under Rule 48(a). Second, courts may deny Rule 48(a) motions based on clear evidence of gross prosecutorial abuse. See id.

He then argues that DOJ’s reasons for moving to dismiss are such obviously bullshit, the only explanation for the motion is that Flynn is a political ally of President Trump.

Both grounds for denying leave of court under Rule 48(a) are present in this case. The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.

Of all the places where Gleeson might (and in some cases, does) use DOJ or Barr’s prior statements against DOJ, the most effective one is quoting Barr’s statement that Trump’s tweets about investigations into his flunkies “make it impossible to do [his] job” to substantiate a claim that any DOJ independence has severely broken down.

These [over 100 Trump tweets complaining about the Flynn prosecution] were issued against the background of a severe breakdown in the traditional independence of the Justice Department from the President. As Professor Jack Goldsmith notes, “every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters.”57 One component of that independence is “resistance to politicized influence.”58 Yet President Trump has overtly claimed and exercised the “absolute right to do what I want to do with the Justice Department.”59 The Attorney General stated earlier this year that President Trump’s “public statements and tweets” about pending cases “make it impossible to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.”60

Which leads Gleeson to concede that DOJ is permitted to exercise its prosecutorial discretion to help a Trump ally for sound reasons, not not for pretextual ones.

The Government may permissibly exercise its discretion for sound reasons even if doing so benefits a friend and political ally of the President (who, as noted, tried unsuccessfully to persuade the FBI Director at the time to “let this go,” ECF No. 79-6 at 26). But the Government may not enlist a court in dismissing a case solely because the defendant is a friend and political ally of the President—and where the ostensible reasons advanced for dismissal amount to a thin and unpersuasive disguise. Only by acting as a rubber stamp could the Court presume that all of this is regular and that the Government’s reasons here are anything but pretextual. Unfortunately, what is actually happening in this case is precisely what Rule 48(a) was intended to guard against. If the Executive wishes for the Judiciary to dismiss criminal charges—as opposed to issuing a pardon or taking other unilateral action—the reasons it offers must be real and credible. Its professed concerns about materiality are neither.

Ultimately, Gleeson argues that Judge Emmet Sullivan should deny DOJ’s motion to dismiss, but that he should not hold Flynn in contempt, but instead factor Flynn’s materially conflicting lies into his sentence.

Judge Reggie Walton Has Questions about the Non-Stone Redactions in the Mueller Report

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Judge Reggie Walton appears to have questions about the non-Roger Stone redactions in the Mueller Report — but we won’t learn what they are for another six weeks or more.

I say that because of two orders he has recently issued in the BuzzFeed/EPIC FOIA lawsuit to liberate the document. Back in May, the plaintiffs pointed to a number of developments in the Roger Stone case, arguing that DOJ can no longer rely on any of the FOIA exemptions previously used to hide such information.

First, the Department of Justice (“DOJ”) may no longer assert that it is prohibited by Judge Jackson’s order from disclosing additional material from the Mueller Report pursuant to the Freedom of Information Act (“FOIA”), as that order has now been lifted. 11.

Second, because the DOJ has disclosed extensive new material concerning its investigation of Mr. Stone—in addition to the new material already disclosed by the DOJ during Mr. Stone’s trial—the DOJ may no longer withhold that same information contained in the Mueller Report. See Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)) (“[W]hen information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim.”). Plaintiffs are thus entitled to any such material under the FOIA.

Third, the DOJ’s Exemption 7(A) claims predicated on the Stone trial are moot. Exemption 7(A) applies only to records compiled for law enforcement purposes, the disclosure of which “could reasonably be expected to interfere with enforcement proceedings,” 5 U.S.C. § 552(b)(7). “[A] law enforcement agency invoking the exception [must] show that the material withheld ‘relates to a concrete prospective law enforcement proceeding.’” Juarez v. DOJ, 518 F.3d 54, 58 (D.C. Cir. 2008) (quoting Bevis v. Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)) (emphasis added). Notably, disclosure “cannot interfere with parts of the enforcement proceeding already concluded.” CREW v. DOJ, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (quoting North v. Walsh, 881 F.2d 1088, 1100 (D.C. Cir. 1989)).

In response, last week, Walton ordered DOJ to file a response by this Friday.

Upon consideration of the plaintiffs’ 119 Notice of Factual Developments Relevant to Pending Motions, it is hereby ORDERED that, on or before June 12, 2020, the United States Department of Justice shall file its response to the plaintiffs’ notice.

DOJ’s response will be interesting, given that, in May, DOJ withheld information from Stone’s warrants partly for privacy reasons (protecting Ted Malloch’s privacy, among others), and partly because of pending investigations. The latter material actually appears to pertain to things that don’t appear in the Mueller Report, however, so any 7A exemptions that DOJ invokes will be of some interest.

But, particularly given the fact that DOJ has not yet responded to that order yet, it suggests that an order Walton issued yesterday, delaying the public hearing on the lawsuit and instead scheduling an ex parte hearing with the government on July 20 — possibly extending to July 21 and 22 (!!!) — pertains to other matters.

Having reviewed the unredacted version of the Mueller Report, the Court cannot assess the merits of certain redactions without further representations from the Department. However, because the Court must discuss the substance of the redactions with the Department, and because such a discussion cannot occur remotely due to the lack of a secure connection between the Court and the Department necessary to avoid disclosure of the redacted information, and in light of Chief Judge Howell’s May 26, 2020 Order, In re: Further Extension of Postponed Court Proceedings in Standing Order 20-9 and Limiting Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-29 (BAH), it is hereby

ORDERED that the status conference currently scheduled for June 18, 2020, is VACATED.

It is further ORDERED that, on July 20, 2020, at 9:30 a.m.,1 the Department shall appear before the Court for an ex parte hearing to address the Court’s questions regarding certain redactions of the Mueller Report.2

1 The Department shall be prepared to appear before the Court for a continuation of the July 20, 2020 ex parte hearing on July 21, 2020, and July 22, 2020, if necessary.

2 The Court will advise the Department as to the topics that the Department should be prepared to discuss at the July 20, 2020 ex parte hearing at a later date.

Curiously, Walton isn’t even asking the government to brief these redactions; he’s asking for someone to come into his courtroom and discuss it, possibly for an extended discussion.

The least interesting topic in question might pertain to the significant redactions of the Internet Research Agency materials, which were redacted in significant part for national security reasons rather than to protect the integrity of an upcoming trial, as they were for Stone. I doubt Walton will have much interest in unsealing that stuff anyway, because he is generally quite sober about protecting national security information.

But there are other things of interest that Walton would want to preserve secrecy on until he tests DOJ’s claims about them. The most obvious are the two discussions apiece about how Trump père and fils avoided testifying; those discussions are currently hidden under a grand jury redaction, one that is arguably inconsistent with other discussions of grand jury actions (including, most recently, a bunch of 302s describing the FBI serving witnesses with subpoenas). We, as voters, should know the details of how Trump dodged a Mueller interview before November 3, and these redactions have always been one of the obviously abusive redactions.

Similarly, DOJ redacted at least two names from the Report’s description of an October 20 scope memo (which the frothy right has gotten disinterested in obtaining), one of which is Don Jr.

DOJ has claimed these privacy redactions are of tertiary third parties, which — given that the second redaction is almost certainly the failson — is clearly false in this instance.

Similarly, given KT McFarland’s public claims that she was caught in a perjury trap, any passage that explains why she wasn’t charged with false statements (which might be the redaction on page 194 of the first part of the report) might be justifiably released.

But there are two redactions that — given recent events — are far more interesting.

There’s a sentence describing Mueller’s decision not to charge Carter Page as an agent of Russia. While, in Page’s case, I might otherwise support leaving this redacted, DOJ has declassified far more sensitive information than what must appear here in response to GOP demands.

The redacted sentence likely summarizes what the fully declassified FISA applications reveal: which is that there was a great deal of evidence that Page was willing to work with known Russian intelligence officers, including sharing non-public information on US businesses, as well as evidence he either lied or had gotten so unbalanced by 2017 that he didn’t tell the truth about those contacts as they they continued to be investigated. Because the FISA application was a case of selective declassification, this passage might be justifiably unsealed to prevent that kind of selective release.

Finally, in the that same section of the report discussing why Mueller didn’t charge people with violations of FARA or 18 USC 951, there’s a footnote about an ongoing investigation that must pertain to Mike Flynn.

My guess is this pertains to a counterintelligence investigation into the ways Russia was cultivating Flynn, something the transcripts of his calls with Sergey Kislyak make clear was happening (which is to say, it doesn’t necessarily say Flynn was at risk of prosecution but that FBI had a duty to investigate). Mueller said FBI was still investigating counterintelligence issues pertaining to Flynn during his July 2019 congressional testimony, which would be consistent with the b7A redaction here.

In any case, given DOJ’s decision to flip-flop on Flynn’s prosecution, any indication there was an ongoing investigation pertaining to Flynn 15 months after he pled guilty for lying would sharply undercut DOJ efforts to exonerate Flynn. And given DOJ’s declassification of so much else pertaining to Flynn — up to and including some, but not all, of the FISA intercepts collecting his calls with Russia — it would be hard for them to argue that this passage could not be declassified.

Unless, of course, the investigation remains ongoing.

Which makes Walton’s apparent delay regarding what topics he expects DOJ to cover next month rather interesting. By July 20, when this ex parte hearing will take place, the DC Circuit may well have decided the Mandamus petition targeting Judge Emmet Sullivan (though, particularly given Noel Francisco’s inclusion on DOJ’s brief on the topic, I expect it to be appealed no matter the decision). And even though he has read the entire report, Walton’s order deferred instructing DOJ about what they would have to discuss until “a later date,” meaning it’s unlikely he issued a sealed order doing so yesterday. At the very least, Walton may delay until he gets DOJ’s response on the Stone materials on Friday.

If there really is an ongoing counterintelligence investigation into Flynn, I would expect (and always have expected) Walton to leave this redaction untouched. But if Billy Barr’s DOJ squelched that investigation, too, I imagine Walton would make the footnote and any discussions about it public.

Once upon a time, DOJ might have gotten by with just the Stone redactions and the abusive redactions protecting Trump and his son. But in recent months, DOJ has done plenty to justify more broadly releasing some of this information.

Sadly, that won’t happen for over a month yet.

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

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

Republicans never consider the implications if the Steele dossier is disinformation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Father of the DEA Dragnet Sics It on Free Speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appointing an amicus is unprecedented

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

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

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

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

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

Billy Barr argues against Billy Barr

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

This brief does so in two ways.

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

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

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

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

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

There are several problems with this.

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

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

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

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

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

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

[snip]

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

Barr reiterated this point in his interview with Catherine Herridge.

Does Judge Sullivan have a say?

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

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

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

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

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

In Opposing Mandamus, Judge Sullivan Notes Schrodinger’s Materiality

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

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

December 1, 2017

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

[snip]

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

December 18, 2018

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

[snip]

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

January 7, 2020

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

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

May 7, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Flynn: Okay.

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

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

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

Flynn: Yes.

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

Flynn: Okay.

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

[snip]

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

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

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

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

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

FLYNN: Uh huh.

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

FLYNN: Please.

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

FLYNN: Uh huh.

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

FLYNN: Okay.

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

FLYNN: Okay that’s good.

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

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

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

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

FLYNN: Right.

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

FLYNN: Mmhm.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KISLYAK: yeah.

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

KISLYAK: You’re absolutely right.

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

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

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

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

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

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

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

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

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

KISLYAK: We have conveyed it. And –

FLYNN: Yeah.

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

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

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

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

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

FLYNN: yeah, yeah

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

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

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