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

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

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

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

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

[snip]

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

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

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

But I would go further.

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

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

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

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

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

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

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

That interpretation would change.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the Two ECs Opening the Investigation into Mike Flynn

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Eight Investigations into the Russian Investigation Have Already Lasted 47% Longer than the Investigation Itself

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Before the holiday weekend, FBI Director Christopher Wray announced an “after-action review of the Michael Flynn investigation.” Thus far, that makes the eighth known investigation into the Russian investigation — and every known investigation included at least a small component relating to Mike Flynn. The investigations into the Russian investigation, which collectively have lasted around 2,064 days, have gone on 47% longer than the investigation itself.

This table lists all the known investigations pertaining to the Russian investigation, save those into people involved in the Carter Page FISA applications. All have at least a component touching on the investigation into Mike Flynn.

This table assumes the Russian investigation is ongoing, based off the redactions in the Roger Stone warrant releases and FOIAed 302s, even though Mueller closed up shop a year ago.

At least three of the investigations in this table pertain to allegations first seeded with Sara Carter and then to various Congressional staffers that Andrew McCabe said, “Fuck Flynn, and I fucking hate Trump.” McCabe was actually considered the victim of the first investigation, which was conducted by the FBI’s Inspection Division, the same entity that will conduct the investigation announced last week. While the full timing of that investigation is not known, Strzok gave a statement to the Inspection Division on July 26, 2017. That Inspection Division investigation led into the investigation into McCabe himself, though that investigation focused on his confirmation of the investigation into the Clinton Foundation (and so is not counted in this table).

Mike Flynn kept raising the “Fuck Flynn” allegations with prosecutors, leading the government to review the allegations two more times, including an October 25, 2018 interview with Lisa Page where she was also asked about her role in editing the Flynn 302s.

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

The DOJ IG investigation into whether Jim Comey violated policy or the law by bringing home his CYA memos started in July 2017 and continued through last summer. Obviously, one of those memos recorded Trump asking Comey to let the Flynn investigation go.

The table above does not include the DOJ IG Report on the Midyear Exam investigation (into Hillary), even though that was the first to examine the Lisa Page and Peter Strzok texts. For timing purposes, only the DOJ IG investigation into Carter Page’s FISA applications investigation counts the investigation into Page and Strzok. That investigation also considered the treatment of Flynn’s presence in the first intelligence briefing for Trump.

Finally, there’s the John Durham investigation — which Bill Barr’s top aides were scoping at least as early as April 12 of last year. There is no public scope document. Similarly, there’s no public scope document of the Jeffrey Jensen review, which Barr launched to create some excuse to move to dismiss the Flynn prosecution after prosecutors recommended (and all of DOJ approved) prison time. Wray’s statement announcing the FBI’s own investigation into the Flynn investigation made clear that the Jensen investigation remains ongoing.

FBI Director Christopher Wray today ordered the Bureau’s Inspection Division to conduct an after-action review of the Michael Flynn investigation.  The after-action review will have a two-fold purpose:  (1) evaluate the relevant facts related to the FBI’s role in the Flynn investigation and determine whether any current employees engaged in misconduct, and (2)  evaluate any FBI policies, procedures, or controls implicated by the Flynn investigation and identify any improvements that might be warranted.

The after-action review will complement the already substantial assistance the FBI has been providing to U.S. Attorney Jeff Jensen in connection with his work on the Flynn case.  Under Director Wray’s leadership, the FBI has been fully transparent and cooperative with Mr. Jensen, and the FBI’s help has included providing special agents to assist Mr. Jensen in the fact-finding process.  Although the FBI does not have the prosecutorial authority to bring a criminal case, the Inspection Division can and will evaluate whether any current on-board employees engaged in actions that might warrant disciplinary measures.  As for former employees, the FBI does not have the ability to take any disciplinary action.

Director Wray authorized this additional level of review now that the Department of Justice, through Mr. Jensen’s work, has developed sufficient information to determine how to proceed in the Flynn case.  However, Mr. Jensen’s work will continue to take priority, and the Director has further ordered the Inspection Division to coordinate closely with Mr. Jensen and ensure that the review does not interfere with or impede his efforts.  Relatedly, for purposes of ensuring investigative continuity across these related matters, the Inspection Division will also utilize to the extent practicable the special agents that the FBI previously assigned to assist Mr. Jensen.

In Bill Barr’s interview with Catherine Herridge, he discussed the Jensen review in terms of criminal behavior, which would mean Jensen and Durham are both considering criminal charges for some of the same activities — activities that had been investigated six times already.

Based on the evidence that you have seen, did senior FBI officials conspire to throw out the national security adviser?

Well, as I said, this is a particular episode. And it has some troubling features to it, as we’ve discussed. But I think, you know, that’s a question that really has to wait an analysis of all the different episodes that occurred through the summer of 2016 and the first several months of President Trump’s administration.

What are the consequences for these individuals?

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. And I’m gonna wait till all the evidence is, and I get their recommendations as to what they found and how serious it is.

But if, you know, if we were to find wrongdoing, in the sense of any criminal act, you know, obviously we would, we would follow through on that. But, again, you know, just because something may even stink to high heaven and be, you know, appear everyone to be bad we still have to apply the right standard and be convinced that there’s a violation of a criminal statute. And that we can prove it beyond a reasonable doubt. The same standard applies to everybody.

This is one reason why DOJ’s claim to have found “new” information justifying their flip-flop on Flynn’s prosecution would be so absurd if DOJ weren’t making the claim (with no documentation) in court. Different entities in DOJ had already investigated circumstances surrounding the Flynn investigation at least seven times before Jensen came in and did it again.

But I guess Barr is going to keep investigating until someone comes up with the result he demands.

“In truth, I never lied;” Mike Flynn’s Materially Conflicting Sworn Statements

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Amid the discussions of what may happen in the DC Circuit’s review of Mike Flynn’s petition for a writ of mandamus, Judge Emmet Sullivan’s instruction to amicus John Gleeson to review whether Flynn should be held in criminal contempt for perjury has been lost. Indeed, the DC Circuit did not include that part of Sullivan’s order in its order to Sullivan to address Flynn’s petition; it addressed only the question of whether Sullivan must grant the government’s motion to dismiss.

Because few people understand the full scope of Flynn’s conflicting sworn statements — not just before Sullivan but also before the grand jury — I’m reposting and elaborating on that list.

  • 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)
    • “For the most part” “all of that work product [was] about Gulen”
    • When asked if he knew of any work product that didn’t relate to Gulen, Flynn answered, “I don’t think there was anything that we had done that had anything to do with, you know, anything else like business climates or stuff like that”
    • He was not aware of “any work done on researching the state of the business climate in Turkey”
    • He was not aware of “any meetings held with U.S. businesses or business associations”
    • He was not aware of “any work done regarding business opportunities and investment in Turkey”
    • 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”
  • January 29, 2020: Mike Flynn submitted a sworn declaration. Among the assertions he made were:
    • “On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI. I am innocent of this crime.”
    • “I gave [Covington] the information they requested and answered their questions truthfully.”
    • “I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak nor do I remember if we discussed the details of a UN vote on Israel.”
    • “My relationship with Covington disintegrated soon thereafter.” [After second proffer session.]
    • “I did not believe I had lied in my White House interview with the FBI agents.”
    • “In the preceding months leading up to this moment [when he agreed to the plea deal], I had read articles and heard rumors that the agents did not believe that I had lied.”
    • “It was well after I pled guilty on December 1, 2017, that I heard or read that the agents had stated that they did not believe that I had lied during the January 24, 2017, White House interview.”
    • “I agreed to plead guilty that next day, December 1, 2017, because of the intense pressure from the Special Counsel’s Office, which included a threat to indict my son, Michael, and the lack of crucial information from my counsel.”
    • “My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace.”
    • “Regretfully I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty.”
    • “In truth, I never lied.”

Three comments about this. First, Flynn has suggested — and his supporters have focused on — that prosecutors promised that Jr wouldn’t be prosecuted. Flynn’s declaration actually stops short of saying prosecutors made this promise.

Second, note that Flynn’s sworn statement conflicts with statements he made to the FBI after his January 24, 2017 interview. For example, his claim not to remember his calls with Kislyak conflicts with 302s cited in the Mueller Report that describe what went on in the calls (though the report cites heavily, though not exclusively, to the one from November 17, 2017, which is the one in which Flynn claims he just repeated what Covington told him to say).

Finally, while Flynn didn’t back off his admission he lied in his FARA filing specifically in his declaration, he does claim that he answered Covington’s answers about his work for Turkey truthfully. In notes that Flynn himself already made public, however, it’s clear he did not, for example where he told his attorneys that the op-ed he published on election day was done for the campaign’s benefit, not Turkey’s.

And his attorneys made much of the fact that he claimed the project started off as being about business climate, which conflicts with his claim that the project was always about Gulen.

DOJ has 600 more pages from Covington (500 pages of evidence and 100 pages of declarations from its lawyers) disputing the claims Flynn has made about him. The timing of DOJ’s motion to dismiss strongly suggests Flynn’s boosters knew they had to act before that Covington material became public. But even without that, Flynn has already provided evidence that Flynn lies to his attorneys resulted in a false FARA filing.

I have no idea whether this will even play into filings at DC Circuit. But unless DC Circuit moves Flynn’s case to another judge (and possibly even then), the case for perjury is still out there in multiple sworn filings.

In an Attempt to Absolve Mike Flynn, Eli Lake Accidentally (and Erroneously) Accuses Flynn of “Outright Espionage,” Then Lies about the Evidence

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As part of the campaign to magnify the cover story for Mike Flynn, Eli Lake has written a long, prettily edited piece laying out the same narrative everyone else uses. It has drawn applause from the typical facilitators of gaslighting: Maggie Haberman, Jonathan Swan, and Pepe the Frog.

But it also got plaudits from someone who normally cares about accuracy and facts as much as pretty narrative, Noah Shachtman, which led me to do a long thread pointing out all the times Eli misrepresented the record or outright lied about it. You can read that thread or read the post I did on Glenn Greenwald’s attempt to defend Flynn and Bill Barr, because Eli makes many of the same false claims that Glenn did, as if there’s a script these men are working from.

Unlike Glenn, though, Eli performs the entire Logan Act part of the script. He claims, as if reading from a Sidney Powell script, that the FBI researched the Logan Act solely to keep any case against Flynn alive.

Bringing up this old chestnut suggests that the FBI was looking for any conceivable pretext to keep its Flynn hunt alive. To that end, the FBI officer overseeing the Flynn case, Peter Strzok, eagerly provided a Congressional Research Service report on the history and utility of the Logan Act to FBI lawyer Lisa Page, who was working in the office of Comey’s deputy, Andrew McCabe.1 In his 2019 memoir, McCabe writes that in “high-level discussion at the relevant agencies and at Justice, the question arose: Was this a violation of the Logan Act?”

And then he points to two more references to the Logan Act in support of a claim that the FBI was considering it.

Then Eli steps in it.

Eli then turns to the scope memo describing what potential crimes Mueller was investigating in 2017, makes no mention that there were four things on the list (none of which are the Logan Act), but does claim the FBI was investigating one of two things: the Logan Act, or “outright espionage.”

Moreover, a recently declassified “scope memo” on the Mueller probe—a document defining the range of issues Mueller was to examine—drafted on August 2, 2017, by then Deputy Attorney General Rod Rosenstein authorized Mueller’s team to investigate whether Flynn had “committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition.” The only crime or crimes that could be found in this case would either be outright espionage or a violation of the Logan Act.

Here’s the document in which Eli claims to see Flynn investigated for “outright espionage.”

Somehow, Eli skips the opening memo for the Flynn investigation, which names the crimes actually under investigation in August 2016 (and still, on January 24, 2017, along with the Logan Act): FARA and 18 USC 951. Had Eli examined that memo, his entire Logan Act canard would have been clear, and his silence about the evidence showing that the Flynn interview always prioritized Foreign Agent component would be more damning.

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

It is true that early in 2017, the FBI had decided Flynn’s calls with Russia did not make him a Foreign Agent of Russia (though later obtained evidence may have changed that view). And the Foreign Agent investigation listed in the 2017 memo focused on Flynn’s hidden relationship with Turkey, not Russia.

Nevertheless, in an attempt to defend Flynn, Eli Lake either lies or appears to describe 18 USC 951 as “outright espionage.”

If 18 USC 951 is “outright espionage,” as Eli claims, then an “outright espionage” charge is what Flynn was avoiding when he pled guilty to the false statement charge that Eli is now misrepresenting. Here’s how Brandon Van Grack explained that to Judge Emmet Sullivan at Flynn’s aborted sentencing in 2018.

THE COURT: I think that’s fair. I think that’s fair. Your answer is he could have been charged in that [EDVA] indictment.

MR. VAN GRACK: Yes, Your Honor.

THE COURT: And that would have been — what’s the exposure in that indictment if someone is found guilty?

MR. VAN GRACK: Your Honor, I believe, if you’ll give me a moment, I believe it was a conspiracy, 18 U.S.C. 371, which I believe is a five-year offense. It was a violation of 18 U.S.C. 951, which is either a five- or ten-year offense, and false statements — under those false statements, now that I think about it, Your Honor, pertain to Ekim Alptekin, and I don’t believe the defendant had exposure to the false statements of that individual.

THE COURT: Could the sentences have been run consecutive to one another?

MR. VAN GRACK: I believe so.

THE COURT: So the exposure would have been grave, then, would have been — it would have been — exposure to Mr. Flynn would have been significant had he been indicted?

MR. VAN GRACK: Yes. And, Your Honor, if I may just clarify. That’s similar to the exposure for pleading guilty to 18 U.S.C. 1001.

THE COURT: Right. Exactly. I’m not minimizing that at all. It’s a five-year felony.

MR. VAN GRACK: Yes, Your Honor.

THE COURT: Excuse me one second. (Brief pause in proceedings.)

THE COURT: Yes, Counsel.

MR. VAN GRACK: Your Honor, I’d clarify that the maximum penalty for 18 U.S.C. 951 is a ten-year felony and five years —

According to Flynn’s own sworn statement, that 15 year sentence is what Covington’s lawyers advised he might be facing if he didn’t take a plea deal that (if Flynn behaved) would result in probation.

November 16, 2017, was the first day of the proffer with the SCO. That same evening, after concluding the first proffer, we returned to the Covington offices where my attorneys told me that the first day’s proffer did not go well and then proceeded to talk me through a litany of conceivable charges I was facing and told me that I was looking at the possibility of “fifteen years in prison.”

That Eli considers Flynn’s exposure to 18 USC 951 because he was secretly on Turkey’s payroll “outright espionage” is telling, because — way at the end of the story, as if the Turkish investigation didn’t happen in parallel with the Russian one — Eli finally gets around to mentioning it. When he does, Eli outright lies about the record on Flynn’s work for Turkey. First, he lies that Inovo was the client, not Turkey.

The reason that Flynn put his name to something he knew was not true was that Mueller’s investigators were squeezing him on an unrelated matter.

In August 2016, Flynn took a contract to represent a Dutch firm known as Inovo BV on a project aimed at investigating and defaming Fetullah Gulen, a charismatic Turkish cleric who had become a mortal enemy of Turkey’s president, Recep Tayyip Erdogan, and was living in exile in Pennsylvania. In 2016, Erdogan survived a military coup he blamed on Gulen’s followers. Erdogan’s regime sought Gulen’s extradition back to Turkey, where he would almost certainly have faced the death penalty.

Taking that contract showed horrendous judgment on Flynn’s part. He was the Trump campaign’s national-security adviser and had no business getting himself in the middle of this. That said, it was a potential political problem for Trump, not the national-security threat that many in the resistance now say it was. It’s fair game for journalists and Democrats to make a stink about the Inovo contract. But it was highly unusual for Flynn’s missteps in this case to be the basis for a criminal prosecution on the grounds that Flynn had violated the Foreign Agents Registration Act (FARA).

According to Flynn’s grand jury testimony — almost the only sworn statement that Flynn has not reneged on yet — the work was always being done for Turkey.

Q From the beginning of the project what was your understanding about on whose behalf the work was going to be performed?

A I think at the — from the beginning it was always on behalf of elements within the Turkish government.

[snip]

Q Did he ever mention to you that the project had significantly changed in any way? A He d.id not, no. No, we pretty much stayed on the same track.

Q Did he ever mention to you that the principal beneficiary of the project had changed?

A He did not. He did not, no.

[snip]

Q Let me finish the question if you it be fair to say, as you testified would, General. So would earlier, that the principal beneficiary was the government of Turkey?

A Yes.

Q Or these high-government officials?

A Yeah.

Q Did he ever mention to you that that principal beneficiary or those principal beneficiaries had changed throughout the project ?

A No, no.

Flynn’s testimony describes how, after Ekim Alptekin said the Turkish clients had given him permission to discuss “confidentiality” and budget with Flynn, just days before Flynn sat in on his first classified candidate briefing with Trump, the named client changed to Inovo.

Q Do you see the first part of the email where Mr. Alptekin says, “Gentlemen, I just finished in Ankara after several meetings today with Min. of Economy Zeybekci and M.F.A. Cavusoglu. I have a green light to discuss confidentiality, budget, and the scope of the contract”?

A Mm-hmm.

Q Is this email an example of how Turkish government officials provided the initial approval for the project?

A Sure is.

Q Originally what was the planned source of funding for the project?

A Initially I was told that the Turkish government would likely — you know, may fund it. And then it changed when that came back that they would not fund it, that it would be funded, you know, via different means, via Ekim’s business, basically.

Q Who told you that the Turkish may fund the project originally?

A Bijan. Conversations we had.

Q Do you recall the name of Mr. Alpteikin’s company?

A Inovo.

Not only does Eli outright lie about whom Flynn was working for, he misrepresents the source of Flynn’s registration problems, the reason they became so acute he faced 15 years in prison over them.

Flynn had initially registered the Inovo contract in August 2016 through a less stringent law known as the Lobbying Disclosure Act. He did so on the advice of his counsel at the time. And when Flynn took the contract, that advice was sound. The legal environment for FARA registrations was quite permissive at the time. But at the end of 2017, and with Mueller in hot pursuit and with unlimited resources, Flynn—and his son, Michael Jr.—could have found themselves facing years in prison. So Flynn, in financial ruin and wishing to get his son out of Mueller’s crosshairs, agreed to cooperate.

Eli doesn’t explain that in March 2017, after Trump had been elected, after Flynn had engaged, as incoming National Security Advisor, in discussions about a Russian-Turkish peace plan for Syria, after Flynn had been fired for hiding details of his conversations with Russia, Flynn registered under FARA, but even then lied about having worked for the Turkish government until days before he became National Security Advisor.

This was not, as Eli falsely portrays, about misrepresenting work for a foreign company. It wasn’t even just that, as Flynn, with his Top Secret clearance, was sitting in on Trump’s first classified briefing, he was also inking a deal to secretly work for Turkey. It’s that Flynn continued to lie about it, even in his official FARA filing in March 2017.

And claimed national security hawk Eli Lake, in a bid to make Flynn look less sketchy, repeats the very same lies that got Flynn in such deep legal trouble, Flynn’s cover story for his relationship with the government of Turkey.

It’s one thing to work for foreign entities and hide that fact if you’re a washed out campaign pro, as Paul Manafort was when he hid that he was secretly working for Ukraine’s ruling oligarchs for years. It’s another thing to sit in on classified briefings with a man running for President while hiding that you’re in talks with Turkish government ministers for a half-million dollar deal.

Eli, in a moment of candor or sloppiness, called this “outright espionage.”

That’s Eli’s representation, not mine. In reality, 18 USC 951 is more ambivalent than that, covering a range of secret relationships with foreign governments. But if the facts of Flynn’s relationship weren’t so damning, then why did Eli lie so aggressively to hide them?

Update: Meanwhile, Flynn’s Turkish handler is outraged that the IC might have read his communications with Flynn.

DC Circuit Orders Judge Sullivan to Respond to Mike Flynn’s Mandamus Petition

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While I’ve been deep in the weeds in the misrepresentations floated in an attempt to overturn the Mike Flynn prosecution, several tactical moves have occurred. I want to lay them out here.

As I note below, the amicus Emmet Sullivan appointed, John Gleeson, had asked to address any additional information he needed. In a scheduling order, Sullivan did not specifically address when or whether Gleeson should do that. There are obvious things implicated in the motion to dismiss — most notably, the Flynn-Kislyak transcripts which were cited in the motion but not included as exhibits, as well as any substantiation for the claim that DOJ didn’t already know about the “new” exhibits the many times in the past they took a radically different view on this prosecution.

Also of note: The DC Circuit panel is demanding a response from Judge Sullivan within 10 days, so before Gleeson files his amicus brief. It’s unclear whether Sullivan must write the response to the DC Circuit himself.

May 7: Billy Barr’s DOJ filed a motion to dismiss that provided provably false justification justifying why DOJ was presenting radically different views than it did in January.

May 12: In response to a request to file an Amicus brief, Sullivan told petitioners to hold off; Flynn objected to amici on principles that Sidney Powell was contradicting in real time by reiterating her past support for Sullivan’s appointment of a Special Master in response to DOJ abuse. Flynn also said he’d be cool if Sullivan did dismiss his prosecution.

May 13: Sullivan appointed John Gleeson to oppose the government’s motion to dismiss and also to address whether Sullivan should hold Flynn in criminal contempt for perjury.

May 14: Covington & Burling lawyer John Hall filed a notice of appearance, as if Covington might still get to defend against Sidney Powell’s accusations that they provided incompetent representation to Flynn.

May 15: John Gleeson formally moved to file an amicus brief, proposing that his brief address the following topics and asking Sullivan to set a briefing schedule and oral argument:

I respectfully request permission to submit a brief on or before June 10, 2020, addressing three issues: (1) the legal framework applicable to the Court’s authority with respect to a motion to dismiss brought under Rule 48 of the Federal Rules of Criminal Procedure (including both the constitutional validity of the Court’s authority to deny such a motion and the standard to be applied in deciding one); (2) any additional factual development I may need before finalizing my argument in opposition to the government’s motion in this case; and (3) whether, based on the record before the Court, it should order the defendant to show cause why he should not be held in criminal contempt for perjury.

May 18: DOJ provided Flynn with the Bill Priestap 302 that reportedly would undermine the Motion to Dismiss.

May 19: Sullivan set the following schedule (unless one of the parties asks him to reconsider by May 26):

June 10: The Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020;

June 10: Any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae

June 17: The government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae

June 24: The Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020

June 26: The government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020

July 2: The government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020.

July 16: Oral arguments

May 19: Flynn files a petition for a writ of mandamus before the DC Circuit

May 21: The DC Circuit (including Poppy Bush appointed Karen Henderson, Obama appointee Robert Wilkins, and Trump hack Neomi Rao (who had recused on other Mueller related matters) instructs Sullivan to respond to Flynn’s petition within 10 days (so May 31), specifically citing US v. Fokker Services. Adding: the DC Circuit also invited the government to weigh in during that same 10 day period. While that suggests the conservatives are inviting a pile on, it also may moot the government’s opportunity to petition for a writ of mandamus if Sullivan has an opportunity to actually rule.

Flynn Was Hiding that He Coordinated His Kislyak Call with Mar-A-Lago

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One of the defenses the frothy right — from Billy Barr down to bots on Twitter — keeps making about Mike Flynn is that because he knew his calls with Sergey Kislyak would be recorded, he would know that the FBI knew what he had said during his January 24, 2017 interview, and so had no reason to lie.

Indeed, whereas DOJ reclassified stuff from an  Andrew McCabe memo that was made public last year (hiding McCabe’s concern about leaks), the only new line in McCabe’s memo they declassified served to substantiate Flynn’s acknowledgment that FBI knew what he had said to Kislyak.

Mr. Flynn, himself a former Director of the Defense Intelligence Agency, stated that he readily expected that the FBI already knew the contents of his conversations with the ambassador, stating: “you listen to everything they say.”

In their motion to dismiss the Flynn prosecution, DOJ used this quotation of Flynn to claim that because FBI already knew what he said with Kislyak, they had no need to interview Flynn.

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said.

Except DOJ and all of Flynn’s frothers are missing (or suppressing) something so obvious I pointed it out when Flynn’s 302 was first released in heavily redacted form 18 months ago.

Flynn wasn’t lying to hide what he said to Kislyak.

He was lying to hide that he had coordinated with people at Mar-a-Lago before speaking with Kislyak.

In the 302 of his January 24, 2017 interview, for example, FBI agents described Flynn attributing the delay in returning Kislyak’s text on December 28 (and, we now know, the Russian Embassy’s call) to the shitty cell reception in Dominican Republic.

Shortly after Christmas, 2016, FLYNN took a vacation to the Dominican Republic with his wife. On December 28th, KISYLAK sent FLYNN a text stating, “Can you call me?” FLYNN noted cellular reception was poor and he was not checking his phone regularly, and consequently did not see the text until approximately 24 hours later. Upon seeing the text, FLYNN responded that he would call in 15-20 minutes, and he and KISLYAK subsequently spoke.

After Agents circled around to ask whether he had discussed the expulsions of diplomats (which, incidentally, I think is a fourth lie, one not charged, suggesting his comments on expulsions go beyond what appears in public reports), Flynn claimed he didn’t know that Obama had imposed the sanctions at all because he wasn’t watching the news and his government BlackBerry wasn’t working (thereby confirming he returned Kislyak’s call using a device the government couldn’t obtain without legal process).

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about the PUTIN/TRUMP VTC and the “Astana thing” (the Kazakhstan conference described earlier). FLYNN noted he was not aware of the then-upcoming actions as he did not have access to television news in the Dominican Republic and his government BlackBerry was not working.

When cued with his specific “tit-for-tat” comment, Flynn again claimed not to have known about the sanctions before his call.

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which the expulsions were discussed, where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian response reciprocal, or not to engage in a “tit-for-tat.” FLYNN responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.'” The U.S. Government’s response was a total surprise to FLYNN. FLYNN did not know about the Persona Non-Grata (PNG) action until it was in the media.

When asked one more time about his calls that day, he again pointed to Dominican Republic’s shitty cell service to claim ignorance of the sanctions.

FLYNN remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues. FLYNN reflected and stated he did not think he would have had a conversation with KISLYAK about the matter, as he did not know the expulsions were coming.

Three different times in this interview, Flynn claimed he did not know about the sanctions before speaking with Kislyak, and in a fourth response, he falsely attributed all the delay in returning Kislyak’s call exclusively to the shitty cell service. But according to the Mueller Report, he had found out about the sanctions from a text a KT McFarland assistant sent him, if not before.

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

The sanctions were announced publicly on December 29, 2016. 1231 At 1 :53 p.m. that day, McFarland began exchanging emails with multiple Transition Team members and advisors about the impact the sanctions would have on the incoming Administration. 1232 At 2:07 p.m., a Transition Team member texted Flynn a link to a New York Times article about the sanctions. 1233 At 2:29 p.m., McFarland called Flynn, but they did not talk. 1234 Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237 McFarland also believed she may have discussed the sanctions with Priebus, and likewise told him that Flynn was scheduled to talk to Kislyak that night. 1238 At 3: 14 p.m., Flynn texted a Transition Team member who was assisting McFarland, “Time for a call???”1239 The Transition Team member responded that McFarland was on the phone with Tom Bossert, a Transition Team senior official, to which Flynn responded, “Tit for tat w Russia not good. Russian AMBO reaching out to me today.” 1240

In fact, Flynn’s specific testimony was not that he had waited to call Kislyak back because of connection issues (though that was probably part of it), but because he wanted to consult with McFarland and others first. He returned Kislyak’s call immediately after consulting with McFarland.

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

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

Not only did Flynn make efforts — by lying — to hide his consultation with Mar-a-Lago when he was interviewed on January 24, but after Kislyak relayed to Flynn that Putin had specifically taken Flynn’s call into account, Flynn took immediate efforts to hide that sanctions had come up by writing McFarland a cover email she could share with others that didn’t mention sanctions.

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267

Flynn knew the FBI had access to the Kislyak transcripts when they interviewed him. Kislyak was a foreign target and so fair game.

But Flynn believed the FBI might not access his communications with the rest of the team (indeed, once Trump’s people discovered Mueller had obtained the Transition communications from GSA in the wake of Flynn’s guilty plea, they threw an every-loving hissy fit). Not just Flynn, but everyone else, was trying to cover up those conversations in which they had strategized the call. Indeed, even after Flynn pled guilty, the White House scripted Bannon to deny them.

And the difference — the fact that Flynn wasn’t trying to hide his calls with Kislyak so much as he was trying to hide his consultations with the people at Trump’s resort — conclusively demonstrates why the lies were material. The FBI knew what Flynn had said to Kislyak, but on January 24, they FBI didn’t know how many calls Flynn had exchanged with others at Mar-a-Lago before calling Kislyak. The Mary McCord 302 reveals analysis of Flynn’s call records had not yet been done by February 16.

McCord’s notes (page 42) reflect that at that time, analysis of Flynn’s phone records was nearly done.

The FBI would have used those call records — of what Flynn made clear in his interview were for his personal, not his government issued (secure) phone — to identify whether it was true that Flynn had been cut off in Dominican Republic, and whether it was true that he really didn’t know about sanctions when he spoke to Kislyak.

Indeed, the FBI were still trying to understand all the details about the discussions at Mar-a-Lago until they obtained the Transition emails with a warrant, which probably happened on August 25, 2017. KT McFarland claimed not to remember the 20 minute call with Flynn in her second interview on September 14, 2017, something she would un-forget after Flynn pled guilty, though Barr’s DOJ is hiding the rest of the details about that call. And FBI didn’t get a full accounting of what happened between Flynn and Mar-a-Lago at least until McFarland started unforgetting on December 22, 2017 in the wake of Flynn’s plea.

In short, it took the FBI almost an entire year to get a general understanding of the events surrounding that call in significant part because of the lies Flynn told in the interview, lies about stuff that didn’t show up in the Kislyak transcript. For much of that time, FBI would have had reason to believe Flynn had acted on his own, giving FBI every reason to believe Flynn was secretly working with Russia (like they were coming to understand he had secretly been on the payroll of Turkey).

That’s the definition of materiality. And, as I’ve noted, Bill Barr’s DOJ is on the record agreeing, in the still-active sentencing memorandum for Mike Flynn submitted in January, that it was material precisely because FBI needed to understand who ordered him to make that call.

Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

Had Trump admitted, right from the start, that he ordered the Code Red, this wouldn’t have been material. Had Mike Flynn been honest that he had coordinated his response with advisors sitting at Mar-a-Lago with Trump, this might not have been material. Had KT McFarland admitted her side of the consultations when interviewed by the FBI in August and September 2017, it might change the materiality of Flynn’s lies.

But Donald Trump and Mike Flynn and KT McFarland treated this as something to hide for almost the entirety of a year. And that’s why the lies mattered.

Barr’s Micro-Management of the Durham Investigation May Demolish the Premise of Flynn Motion to Dismiss

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American Oversight FOIAed records of contacts between Bill Barr and John Durham, whom Barr has ordered to conduct an investigation to undermine the Russian investigation. While there’s no evidence that all of these meetings pertained to the investigation Barr ordered up, they span the period (but start earlier than) when Barr said he was communicating to Durham about the investigation.

People from Barr’s office met with Durham 18 times between March 25 and October 17, 2019. That doesn’t include the trip to Rome Durham and Barr took together last fall.

That is an astounding level of micro-management from an Attorney General.

That — plus records of a meeting on April 12, 2019 where Barr’s aide Seth DuCharme described for DOJ Inspector General Michael Horowitz what he and Durham were working on — may well demolish the premise of DOJ’s Motion to Dismiss the Flynn prosecution.

As I have noted, DOJ adopted a radically different view on both the legitimacy of the investigation into Flynn and the materiality of his lies in submissions filed under Bill Barr last fall and this January than what DOJ argued in the Motion to Dismiss. The only excuse provided — without any kind of declaration to substantiate the claim — was that DOJ had discovered “new” information that made it rethink its past position.

That claim was always sketchy, not least because Judge Emmet Sullivan had actually reviewed some of the most important documents released with the motion. Moreover, FBI already issued a public statement making it clear those documents were not new. In fact, the Bureau had already shared them with both Horowitz’s and Durham’s investigations.

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

If Sullivan and his newly appointed amicus, John Gleeson, acquire information that proves, definitively, that this information was not new to the Flynn prosecution supervisors, up to and including Barr, it may mean DOJ is estopped from adopting its current position because, effectively, having had those documents already, DOJ already committed to the opposite position.

These records provide Gleeson a road map to discover precisely who in the Office of Attorney General was micro-managing Durham’s investigation, including his receipt of documents that Barr’s office now claims (almost certainly falsely) were new to them.

That is, this FOIA response provides the skeleton of the kind of proof that Gleeson can use to argue that DOJ is prohibited from adopting its current stance, because they have no excuse for flip-flopping on a position already adopted in this case.

Trump Should Worry about How Prosecutors Came to Learn Which Subset of His Calls with Roger Stone to Ask About

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Just weeks before Roger Stone is scheduled to report to prison, he has opened a new bid for a pardon: by claiming he refused to implicate Trump in his efforts to optimize the WikiLeaks releases during the election.

Stone started the campaign last week in an unbelievably solicitous interview with the Daily Caller (which apparently isn’t upset by the recently released evidence Stone used them to spread false stories in 2018), and continued it last night on Lou Dobbs.

In both, Stone makes an entirely new claim about how he protected Donald Trump. He claims that an unnamed prosecutor on his case approached his lawyers suggesting that Stone would get no jail time if he described how he coordinated with Trump on WikiLeaks and Russia during 36 (or 29, in the Daily Caller version) phone calls prosecutors had identified.

DOBBS: We’re back with Roger Stone. And Roger, do you think you were targeted by Mueller, specifically to get dirt — to put you under pressure to get dirt on President Trump? STONE: There’s no question whatsoever. After illegal leaks over a year saying I would be charged with treason and conspiracy against the United States, being the link between the Trump campaign and Russia. They indicted me on the flimsiest charges of lying to Congress even though there was no underlying crime for me to lie about. And then on July 24th, 2019, a member of the Mueller’s dirty cop squad approached one of my lawyers proposing a deal. If Stone would be willing to really re-remember the content of some 36 phone calls I had with candidate Trump, and admit that they were about Russia and WikiLeaks, they would be willing to perhaps recommend no jail time and I said, no. This President needs to be reelected, Lou. He is the greatest President in my lifetime, I would never give false testimony against him.

Stone doesn’t admit — and of course Lou Dobbs doesn’t challenge him — that the public record shows a Foreign Agent and conspiracy investigation into Stone appears to be ongoing. There weren’t really any leaks (at least not from the government) claiming the investigation into Stone pertained to conspiring with Russia, but it does appear to be the case that prosecutors were and may still be focusing on conspiracy charges for Stone.

Rather than discuss what the public record shows, Dobbs allows Stone to float a number of other false claims, along with this new one: that he was asked and refused to implicate Trump.

Stone’s segment had the desired effect.

The thing is, if I were Trump, I wouldn’t take any moves to protect his rat-fucker based on these statements — and not just because the record has shown Stone to be lying non-stop since 2016. It’s true that this purported offer came not long after DC prosecutors had made it clear in a status report for Rick Gates that Trump’s awareness of Stone’s actions would be a focus of Stone’s trial. It is true the offer came days before the first of a series of interviews seemingly preparing for Stone’s trial (which started November 5, 2019).

But this request also would have come after prosecutors had had six months to wade through the materials seized when they arrested Stone on January 25, 2019. Among the things prosecutors were explicitly searching for was a notebook in which a rat-fucker taught by Nixon’s experts wrote down everything that transpired in conversations Stone had with the candidate.

53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

I actually had come to suspect that, in the weeks after Matt Whitaker first got briefed on this investigation, Stone managed to pawn off the notebook onto one of his aides. That’s because, among the documents Stone submitted in an attempt to pretend that he and his lawyers weren’t yanking Amy Berman Jackson’s chain about their knowledge of the release of the paperback edition of his book recounting the 2016 election, was one showing that after Stone flip-flopped on a dime about his interest to even do the paperback, he wanted immediate payment to his collaborators on the book on December 18, 2018.

Stone’s book was effectively the “post mortem of what went wrong” that Stone kept the notes for. If Stone had learned (in part via the private investigator he had hired for this purpose and possibly via Whitaker) that prosecutors knew of and where interested in this notebook, paying someone to protect the notebook would be the kind of thing Stone might do.

But his claims about protecting Trump include specific numbers of calls. Stone is inconsistent about how many calls prosecutors were asking Stone about. In one place he said 29, another 36.

Both of those numbers are considerably less than 60, which is the number of phone calls prosecutors said Stone had directly with Trump, even before any calls Stone may have placed through Trump’s assistants or the face-to-face meetings (for example, one on October 8, 2016) we know happened, even without a phone call to arrange it.

It’s true that, at the trial, prosecutors assiduously disclaimed specific knowledge of the content of those calls.

Now, you’ll hear, also, that a few days later, on July 31, 2016, Roger Stone again contacted then-candidate Trump. And just like that call on June 14th, after the
DNC’s — Democratic National Committee’s — announcement, we do not know the content of the call that took place on July 31st, 2016. But, we do know that Roger Stone called then-candidate Trump and we do know that they spoke for approximately ten minutes on then-candidate Trump’s personal lines.

But if they have reason to believe that just a subset of those calls — around half — pertained to WikiLeaks and Russia, it might explain why they’d approach Stone with that number. (Of course, Stone might simply be making the number up and prosecutors might have focused on these calls because of the context, as with multiple calls that preceded or followed calls to Gates that involved WikiLeaks.)

Plus, prosecutors came to the trial prepared to lay out how extensive these communications were, among other things, but seemed to change strategy in the second week of the trial (after interviewing some unnamed witness on that Saturday).

It may well be that Roger Stone decided not to implicate Trump when prosecutors asked him to in July 2019 and he may be boasting of that now in a bid to stay out of prison (which was a long time ago, in any case). But somehow, prosecutors seem to have known which of more than 60 calls to ask about. If they learned it from a CYA document Stone carelessly kept around, prosecutors may not need Stone’s testimony to implicate Trump in optimizing the WikiLeaks releases, making a pardon for Stone less than useless for Trump.

The Trump Administration Disproves the Trump Administration’s Claims that Mike Flynn’s Communications with Sergey Kislyak Were Routine

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In this post, I showed how former National Security Advisor Susan Rice’s memorialization of a conversation about Mike Flynn’s calls to Sergey Kislyak with President Obama and others on January 5, 2017 made it clear that Obama wanted nothing to do with any investigation into Flynn. I noted there was one redacted passage that seemed, “consistent with Obama adopting some caution, but deferring any more drastic measures unless, ‘anything changes in the next few weeks.'”

In a never-ending bid to distract from Trump’s disastrous performance on COVID, the Trump Administration has now released the full letter, which reads this way:

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

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

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

Director Comey affirmed that he is proceeding “by the book” as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that could be an issue as it relates to sharing information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied, “potentially.” He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that “the level of communication is unusual.”

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

The italicized passage is new. It reveals that Flynn was speaking to Kislyak “frequently,” a comment which is consistent with Sally Yates’ concern about the “back and forth” between Kislyak in which Flynn was making “specific asks.” Some of those specific asks Yates described in her Mueller interview remain redacted (as are the transcripts of Flynn’s calls with Kislyak themselves).

In DOJ’s motion to dismiss Flynn’s prosecution, they argue that Flynn’s calls were routine calls made to “build relationships.”

Such calls are not uncommon when incumbent public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts.

But the motion addresses only a subset of calls, not (for example) the face-to-face meeting with Kislyak on December 1, or calls Flynn made during the election (his 302 mentions one he made in January 2016, at a time he claimed not to be working with Trump, but there are reports there were more).

Most importantly, the filing doesn’t address a key reason why the FBI had reason to investigate Mike Flynn: the frequency of his calls to Kislyak were “unusual.”

In an effort to gaslight Trump supporters, then, the Trump Administration just showed that DOJ’s motion to dismiss falsely treated as normal communications that were not.

Which, given that the Trump Administration just produced evidence that proves DOJ’s motion to dismiss made a false claim, provides Sullivan all the more reason to demand all the transcripts between Flynn and Kislyak.

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