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On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

Since the NYT revealed that SDNY is investigating Rudy Giuliani for what they call “lobbying” laws,

Mr. Lutsenko initially asked Mr. Giuliani to represent him, according to the former mayor, who said he declined because it would have posed a conflict with his work for the president. Instead, Mr. Giuliani said, he interviewed Mr. Lutsenko for hours, then had one of his employees — a “professional investigator who works for my company” — write memos detailing the Ukrainian prosecutors’ claims about Ms. Yovanovitch, Mr. Biden and others.

Mr. Giuliani said he provided those memos to Secretary of State Mike Pompeo this year and was told that the State Department passed the memos to the F.B.I. He did not say who told him.

Mr. Giuliani said he also gave the memos to the columnist, John Solomon, who worked at the time for The Hill newspaper and published articles and videos critical of Ms. Yovanovitch, the Bidens and other Trump targets. It was unclear to what degree Mr. Giuliani’s memos served as fodder for Mr. Solomon, who independently interviewed Mr. Lutsenko and other sources.

Mr. Solomon did not immediately respond to a request for comment.

The lobbying disclosure law contains an exemption for legal work, and Mr. Giuliani said his efforts to unearth information and push both for investigations in Ukraine and for news coverage of his findings originated with his defense of Mr. Trump in the special counsel’s investigation.

He acknowledged that his work morphed into a more general dragnet for dirt on Mr. Trump’s targets but said that it was difficult to separate those lines of inquiry from his original mission of discrediting the origins of the special counsel’s investigation.

Mr. Giuliani said Mr. Lutsenko never specifically asked him to try to force Ms. Yovanovitch’s recall, saying he concluded himself that Mr. Lutsenko probably wanted her fired because he had complained that she was stifling his investigations.

“He didn’t say to me, ‘I came here to get Yovanovitch fired.’ He came here because he said he had been trying to transmit this information to your government for the past year, and had been unable to do it,” Mr. Giuliani said of his meeting in New York with Mr. Lutsenko. “I transmitted the information to the right people.”

And since the WSJ reported that Pete Sessions — named as Congressman 1 in the Lev Parnas/Igor Fruman indictment — was cooperating with a grand jury subpoena targeting Rudy,

A grand jury has issued a subpoena related to Manhattan federal prosecutors’ investigation into Rudy Giuliani, seeking documents from former Rep. Pete Sessions about his dealings with President Trump’s personal lawyer and associates, according to people familiar with the matter.

The subpoena seeks documents related to Mr. Giuliani’s business dealings with Ukraine and his involvement in efforts to oust the U.S. ambassador in Kyiv, as well as any interactions between Mr. Sessions, Mr. Giuliani and four men who were indicted last week on campaign-finance and conspiracy accounts, the people said.

Mr. Sessions’ knowledge of Mr. Giuliani’s dealings is a primary focus of the subpoena, the people said.

There has been a closer review of whether it would be possible to indict the President’s personal lawyer under foreign agent laws, with broad consensus that what Rudy is doing is actually covered by FARA — and not just his work for Ukraine, but also (among other places) for Turkey.

But there have been a number of claims that, I think, have been too pat about how easy or hard this is going to be.

Greg Craig, Tony Podesta, Vin Weber, and Bijan Kian are not apt precedents

First, a number of people have looked at how SDNY considered — but did not charge — Greg Craig, Tony Podesta, and Vin Weber under FARA, suggesting the same considerations would hold true with Rudy. Others have looked at Greg Craig (who was prosecuted but acquitted in DC for FARA after SDNY decided not to charge it) and Bijan Kian (who was convicted but then had his conviction thrown out by Judge Anthony Trenga based on the legal theory DOJ used) to suggest these cases are too difficult to charge to get Rudy.

It is absolutely the case that when powerful men with skilled lawyers have been pursued under FARA in recent years, DOJ has succeeded not in trial, but instead has gotten either plea deals or failed at trial (and that may have been one of the facts behind Mueller’s decision to strike a plea deal with Paul Manafort). That is sound evidence that SDNY is no doubt aware of.

But several things distinguish Rudy.

Most notably, all of those earlier cases came before DOJ’s newfound commitment to prosecuting FARA, with Mike Flynn prosecutor Brandon Van Grack taking over where a woman named Heather Hunt had been in charge before. At a minimum, that means a process that originally took place with Craig, Podesta, Weber, and Kian under an assumption that FARA would be treated solely as a registration issue may now be taking place under an assumption that violations of FARA — presumably to include both a failure to register and (what most charges have been so far) false statements under registration — can be prosecuted. That assumption would dramatically change the attention with which DOJ would document their communications, so prosecutors would not now be stuck going to trial (as Craig’s prosecutors were) without having DOJ’s documentation of a key meeting.

Notably, the same thing that triggered the FARA prosecution of Mike Flynn — concerns raised by Congress — happened last year when seven Democratic Senators wrote National Security Division head John Demers asking for a review. So there may well be documentation of Rudy’s claims about whether he does or does not need to register that SDNY is building a prosecution around.

Plus, one thing clearly distinguishes Rudy from all these other men. Rudy is not taking this investigation seriously, and does not have a lawyer reviewing his exposure. From reports, he may not have the ready cash to pay the likes of Rob Kelner (Flynn’s original, very competent, lawyer) or Robert Trout (Kian’s excellent lawyer). So he may be doing things now (not least, running his mouth on TV and making public statements about who he works for and how it gets paid) that put him at greater exposure.

Rudy G’s efforts to implicate State and DOJ (and the President) in his work

That said, another thing distinguishes Rudy from these past cases. Since the whistleblower complaint got made public, he has spent most of his time insisting that everything he did, he did with the awareness and involvement of — at least — the State Department. And in Trump’s July 25 call to Volodymyr Zelensky, he invoked Bill Barr’s name right alongside his nominal defense attorney.

Both foreign agent statutes (FARA — the one being discussed for Rudy, and 18 USC 951 — another one, with more flexibility, that Kian was charged under) require registration with the Attorney General. And while telling foreigners you’re negotiating with that the Attorney General will be by soon to pick up the disinformation demanded does not fulfill the requirements for registry (in part, the point of registering is to provide a paper trail so the public can track who is paying for what), it does change things that Rudy is suggesting that his work has the imprimatur of official policy to it.

That said, the assumption that implicating powerful government figures will keep you safe is a dangerous proposition. If the easiest way to end the Ukraine inquiry is to blame Rudy for it all (and if that’s still possible after several weeks of damning testimony), that may well come to pass.

And if Bill Barr needs to greenlight a FARA prosecution of Rudy as a way to minimize the damage to the Administration, and to himself, he may well do that (yet another reason why he should have recused long ago).

That’s all the more true given that most of Trump’s aides seem to recognize how damaging Rudy is for Trump’s exposure. If Trump won’t separate himself from Rudy, his lackeys might one day decide, then separate Rudy from Trump by prosecuting him, the same way they separated Michael Cohen from Trump.

That said, with Trump, loyalty is always transactional. And if he believes Rudy has dirt that can bring him down — and given the likelihood some of what Rudy is doing is the continuation of what Paul Manafort had been doing since August 2, 2016, that may be true — then Trump will defend Rudy’s work even if it means claiming everything he did operated under Article II authority.

The additional factor: ConFraudUs

The discussions about Rudy’s exposure under FARA, however, seem not to have considered another factor: that Lev Parnas and Igor Fruman have already been charged with conspiracy in conjunction with actions Rudy had a key role in. The Ukrainian grifter indictment charges them with two counts of Conspiracy to Defraud the US for hiding what money was behind their influence campaign on Ukraine (count 1) and Nevada marijuana (count 4), as well as False Statements to the FEC (count 2) and falsification of records (count 3) tied to the Ukraine influence operation. Counts 1-3 all pertain to the Ukrainian grifters laundering of campaign funds through Global Energy Producers, a front that (SDNY alleges) they falsely claimed was “a real business enterprise funded with substantial bona fide capital investment,” the major purpose of which “is energy trading, not political activity.” Those funds went, among other places, to the Trump related Super PAC America First Action and to Congressman Sessions.

Rudy has equivocated about his relationship to the Ukrainian grifters (and claims it goes through Fraud Guarantee, not GEP). But John Dowd, writing as the grifters’ lawyer, already stated for the record that he does have ties and those ties relate to his representation of the President. That is, the grifters are working for him, even while he works for them.

That’s important because Sessions’ statements have denied any official action in response to meetings with the grifters, but he also had meetings with Rudy in the time period, official action in response to which he has not denied. In addition, Rudy (whom Sessions says he has been friends with for three decades) also headlined a fundraiser for Sessions. And on top of the straw donations the grifters gave Sessions directly, America First Action gave Sessions far more to him, $3 million, the indictment notes twice.

In other words, while Sessions has denied doing anything in response to the grifters’ meetings, he has not denied doing anything in response to Rudy’s communications with him. If he sent his letter calling for the ouster of Marie Yovanovitch in response to a request from Rudy — whose finances are inextricably tied to the grifters — then it may be fairly easy to add him to the conspiracy the (successful) object of which was to get Yovanovitch fired. The propaganda Rudy sent (as laid out by NYT, and which the State IG already sent to the FBI earlier this year) would then simply be part of the conspiracy.

A few more points. There’s a passage of the indictment included to substantiate the allegation that the grifters were affirmatively trying to hide their purpose.

Indeed, when media reports about the GEP contributions first surfaced, an individual working with PARNAS remarked, “[t]his is what happens when you become visible … the buzzards descend,” to which PARNAS responded, “[t]hat’s why we need to stay under the radar…”

The indictment doesn’t disclose a number of details about this communication: who the interlocutor is, how it was collected, and whether it involved a mere warrant (for stored communications such as email or texts) or a wiretap. But particularly given the seeming overlap between these activities and those of people we know were surveilled during the period in question, it’s a pregnant inclusion in the indictment. It suggests the Feds may already be privy to far more about this scheme and the reasons the grifters might want it suppressed. Add that to the fact that, as WSJ reported, the Feds already have Rudy’s bank records, which will show whether he really worked for Fraud Guarantee or whether that, like GEP, is just a front.

Cui bono

Finally, consider this. The indictment says that the grifters were pushing to oust Yovanovitch to benefit  particular unnamed Ukrainians’ interests.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukrainian government official with whom they were working.

[snip]

At and around the time PARNAS and FRUMAN committed to raising those funds for [Sessions], PARNAS met with [SESSIONS] and sought [his] assistance in causing the U.S. Government to remove or recall [Yovanovitch]. PARNAS’s efforts to remove the Ambassador were conducted, at least in part, at the request of one or more Ukrainian government officials.

According to NBC, the Ukrainian in question was Yurii Lutsenko. But Lutsenko has since been ousted, and he has reneged on statements elicited by Rudy implicating the Bidens. More importantly, one of the promises Zelensky made in his July 25 call to Trump was to put in his own prosecutor who would pursue the two investigations — to trump up a claim Ukraine was behind the election tampering in 2016, and to invent evidence against Hunter Biden — that Trump wanted.

The President: Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor bf New York Ci:ty, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The oteer thing, There’s a lot of talk about Biden’s son. that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.

President Zelenskyy: I wanted to tell ·you about the prosecutor. First of all I understand arid I’m knowledgeable about the situation. Since we have won the absolute majority in our Parliament; the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look. into the situation, specifically to the company that you mentioned in this issue.

Which is what led to Lutsenko’s ouster.

Moreover, the prosecutor Biden shut down was not Lutsenko, but Viktor Shokin, who has written affidavits which then got fed to John Solomon on behalf of Dmitry Firtash, who is trying hard to avoid extradition (on bribery charges) to the US.

That — plus the financial and legal ties between Firtash and the grifters — suggests there may be other Ukrainians on whose behalf the grifters were working to get Yovanovitch withdrawn. Firtash is certainly one. A corrupt prosecutor with ties to Russian intelligence, Kostiantyn Kulyk, who had worked for all these guys — and who is behind a dossier on accusing Hunter Biden of corruption — may be another. That is, Yovanovitch may have been the impediment not to inventing dirt on the Bidens, which is a fairly easy ask, but instead on creating the pre-conditions for people like Firtash to go free (which would also explain the natural gas angle).

All of which is to say that it would be a fairly trivial matter to establish the evidence to charge Rudy in ConFraudUs along with the Ukrainian grifters, as SDNY already has a lot of the evidence it would need.

Yes, Rudy Giuliani is, by all appearances, in blatant violation of FARA. Yes, he may get away with that, in part because DOJ hasn’t yet figured out hard to charge it consistently (though knows what not to do given recent history), and in part because he has made sure to implicate Trump and his cabinet officials.

But there’s a larger question about whether those same financial ties expose Rudy for much uglier conspiracy charges.

Judge Trenga’s Bijan Kian Decision May Hurt, Not Help, Mike Flynn

As expected, Judge Anthony Trenga has overturned the conviction of Mike Flynn’s former partner, Bijan Kian. Trenga has long expressed doubts about the way the government charged this case. And when Flynn reneged on a part of his plea colloquy, it made him useless as a witness but — following a ruling from Trenga — did not make his statements available as a co-conspirator.

While a lot of people are seeing this (accompanied by the news that Vin Weber and Tony Podesta won’t be charged) as a blow for DOJ’s new FARA prosecution practice, I think Trenga’s opinion has greater repercussions for 18 USC 951 prosecutions than it does for FARA, because he finds (convincingly) that Congress intended the standards for the former to be significantly higher than for the latter.

That said, a central part of Trenga’s ruling derived from his decisions regarding Flynn’s role in this and was, in part, a result of Flynn’s decision to renege on his plea colloquy. Because the government couldn’t call him to testify but neither could rely on his statements as a co-conspirator, it made the most important evidence fairly useless at trial.

There was no competent evidence from which the jury could find that Alptekin acted as the type of “intermediary” the Government contends. In fact, the only evidence of any association between Alptekin and the Turkish government in connection with FIG’s retention is reflected in the hearsay statements of Alptekin to Rafiekian, which were admitted not as proof of Alptekin’s relationship or role relative to Turkey, but solely as evidence of what Alptekin told Rafiekian. Accordingly, the jury had no evidence of what Alptekin’s actual relationship or role was relative to the Turkish government, and because of that absence of evidence could not find for its purposes in deciding the case that Alptekin was, in fact, operation as an agent, alter ego, representative, “cut-out”, or any other type of “intermediary” for the Turkish government.”

That’s not the only basis for Trenga overturning the conviction. He also points to Alptekin’s disappointment with what FIG delivered to support a ruling that FIG was not working at the direction of Turkey (as required under 951 but not FARA). But the Flynn head fake is a key part of this.

So while a bunch of Flynn frothers who ignore all the very public ways that Sidney Powell’s claims about Flynn’s prosecution are horseshit are celebrating this decision, unless Emmet Sullivan finds any of Powell’s claims persuasive, this decision is likely to hurt Flynn. The government has already said they’re going to write a new sentencing memo, and this opinion will provide compelling reason to argue that Flynn ultimately did not cooperate.

Trenga’s decision is, given the facts of the case, quite compelling. But that says nothing about what Sullivan’s decision in upcoming months will be.

Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

According to Mike Flynn’s Fox News lawyer, Sidney Powell, to “defend” himself in a guilty plea he has already sworn to twice under oath, he needs to obtain unredacted versions of a Comey memo showing he was not targeted with a FISA warrant and a FISA order showing that people who were targeted with FISA warrants might have been improperly scrutinized while they were overseas.

That’s just part of the batshittery included in a request for Brady material submitted to Emmet Sullivan last Friday.

The motion is 19 pages, most of which speaks in gross generalities about Brady obligations or repeats Ted Stevens Ted Stevens Ted Stevens over and over again, apparently a bid to convince Judge Emmet Sullivan that this case has been subject to the same kind of abuse that the late Senator’s was.

After several readings, I’ve discovered that Powell does make an argument in the motion: that if the government had provided Flynn with every damning detail it has on Peter Strzok, Flynn might not have pled guilty to lying to Strzok about his conversations with Russian Ambassador Sergey Kislyak or admitted that he used a kickback system to hide that he was a paid agent of Turkey while getting Top Secret briefings with candidate Trump.

They affirmatively suppressed evidence (hiding Brady material) that destroyed the credibility of their primary witness, impugned their entire case against Mr. Flynn, while at the same time putting excruciating pressure on him to enter his guilty plea and manipulating or controlling the press to their advantage to extort that plea. They continued to hide that exculpatory information for months—in direct contravention of this Court’s Order—and they continue to suppress exculpatory information to this day.

One of the things Powell argues Flynn should have received is unredacted copies of every text Strzok sent Lisa Page.

The government’s most stunning suppression of evidence is perhaps the text messages of Peter Srzok and Lisa Page. In July of 2017, (now over two years ago), the Inspector General of the Department of Justice advised Special Counsel of the extreme bias in the now infamous text messages of these two FBI employees. Mr. Van Grack did not produce a single text messages to the defense until March 13, 2018, when he gave them a link to then-publicly available messages. 14

Mr. Van Grack and Ms. Ahmad, among other things, did not disclose that FBI Agent Strzok had been fired from the Special Counsel team as its lead agent almost six months earlier because of his relationship with Deputy Director McCabe’s Counsel—who had also been on the Special Counsel team—and because of their text messages and conduct. One would think that more than a significant subset of those messages had to have been shared by the Inspector General of the Department of Justice with Special Counsel to warrant such a high-level and immediate personnel change. Indeed, Ms. Page left the Department of Justice because of her conduct, and Agent Strzok was terminated from the FBI because of it.

14 There have been additional belated productions. Each time more text messages are found, produced, or unredacted, there is more evidence of the corruption of those two agents. John Bowden, FBI Agent in Texts: ‘We’ll Stop’ Trump From Becoming President, THE HILL (June 14, 2018), https://thehill.com/policy/national-security/392284-fbi-agent-in-texts-well-stop-trumpfrom-becoming-president; see also U.S. Dept. of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018) (https://www.justice.gov/file/1071991/download). But the situation is even worse. After being notified by the Inspector General of the Department of Justice of the extraordinary text communications between Strzok and Page (more than 50,000 texts) and of their personal relationship, which further compromised them, Special Counsel and DOJ destroyed their cell phones. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation: Recovery of Text Messages From Certain FBI Mobile Devices, Redacted Ed. Washington, D.C. (2018), https://www.justice.gov/file/1071991/download. This is why our Motion also requests a preservation order like the one this Court entered in the Stevens case.

As is true of most of this filing, Powell gets some facts wrong here. The public record says that as soon as Mueller got the warning from Michael Horowitz about the texts, he started moving Strzok off the team. He didn’t need to see the texts, that they were there was issue enough. And Lisa Page remained at FBI until May 2018, even after the texts were released to the public.

And while, if Sullivan had taken Flynn’s initial guilty plea rather than Rudy Contreras, one might argue that Van Grack should have alerted Flynn’s lawyer Rob Kelner of the existence of the Strzok-Page texts, DOJ was not required to turn them over before Flynn’s guilty plea. Moreover, the problem with claiming that withholding the Strzok-Page texts prevented Flynn from taking them into account, is that they were made public the say day Emmet Sullivan issued his Brady order and Flynn effectively pled guilty again a year after they were released, in sworn statements where he also reiterated his satisfaction with his attorney, Kelner. Any texts suggesting bias had long been released; what remains redacted surely pertains either to their genuine privacy or to other counterintelligence investigations.

Finally, at least as far as public evidence goes, Strzok was, if anything, favorable to Flynn for the period he was part of the investigation. He found Flynn credible in the interview, and four months later didn’t think anything would come of the Mueller investigation. So the available evidence, at least, shows that Flynn was treated well by Strzok.

The filing also complains about information just turned over on August 16.

For example, just two weeks ago, Mr. Van Grack, Ms. Curtis, and Ms. Ballantine produced 330 pages of documents with an abject denial the production included any Brady material.6 Yet that production reveals significant Brady evidence that we include and discuss in our accompanying Motion (filed under seal because the prosecutors produced it under the Protective Order).

6 “[T]he government makes this production to you as a courtesy and not because production of this information is required by either Brady v. Maryland, 373 U.S. 83 (1963), or the Court’s Standing Order dated February 16, 2018.” Letter from Mr. Brandon Van Grack to Sidney K. Powell, Aug. 16, 2019.

Given the timing, it may well consist of the unclassified materials showing that Turkey (and possibly Russia) believed Flynn to be an easy mark and expected to be able to manipulate Trump through him. I await either the unsealing of Powell’s sealed filing or the government response to see if her complaints are any more worthy than this filing.

That’s unlikely. Because the rest of her memo makes a slew of claims that suggest she’s either so badly stuck inside the Fox bubble she doesn’t understand what the documents in question actually say, or doesn’t care. In her demand for other documents that won’t help Flynn she,

  • Misstates the seniority of Bruce Ohr
  • Falsely claims Bruce Ohr continued to serve as a back channel for Steele intelligence when in fact he was providing evidence to Bill Priestap about its shortcomings (whom the filing also impugns)
  • Suggests the Ohr memos pertain to Flynn; none of the ones released so far have the slightest bit to do with Flynn
  • Falsely suggests that Andrew Weissmann was in charge of the Flynn prosecution
  • Claims that Weissman and Zainab Ahmad had multiple meetings with Ohr when the only known meeting with him took place in fall 2016, before Flynn committed the crimes he pled guilty to; the meeting likely pertained to Paul Manafort, not Flynn
  • Includes a complaint from a Flynn associate that pertains to alleged DOD misconduct (under Trump) to suggest DOJ prosecutors are corrupt

In short, Powell takes all the random conspiracy theories about the investigation and throws them in a legal filing without even fact-checking them against the official documents, or even, at times, the frothy right propaganda outlets that first made the allegations.

Things get far weirder when it comes to her demands relating to FISA information. In a bid to claim this is all very pressing, Powell demands she get an unredacted version of the Comey IG Report.

Since our initial request to the Department by confidential letter dated June 6, 2019, we have identified additional documents that we specify in our Motion. Now, with the impending and just-released reports of the Inspector General, there may be more. The Report of the Inspector General regarding James Comey’s memos and leaks is replete with references to Mr. Flynn, and some information is redacted. There may also be a separate classified section relevant to Mr. Flynn. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02 (Aug. 29, 2019), https://oig.justice.gov/reports/2019/o1902.pdf

The only redacted bits in the report are in Comey’s memos themselves — the stuff that the frothy right is currently claiming was so classified that Comey should have been prosecuted for leaving them in a SCIF at work. Along with unclassified sections quoting Trump saying he has “serious reservations about Mike Flynn’s judgment” (the redacted bit explains that the President was pissed that Flynn didn’t tell him about Putin’s congratulatory call right away) and “he had other concerns about Flynn,” there’s this section that redacts the answer to Reince Priebus’ question about whether the FBI has a FISA order on Flynn (PDF 74).

The answer, though, is almost certainly no. Even if the FBI obtained one later, there was no way that Comey would have told Priebus that Flynn was targeted; the FBI became more concerned about Flynn after this February 8 conversation, in part because of his continued lies about his work with Turkey.

Flynn’s team also demands an unredacted copy of this 2017 FISA 702 Rosemary Collyer opinion, though Powell’s understanding of it seems to based off Sara Carter’s egregiously erroneous reporting on it (here’s my analysis of the opinion).

Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only did the last administration—especially from late 2015 to 2016—dramatically increase its use and abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained information among federal agencies.10 Judge Collyer determined that former FBI Director Comey gave illegal unsupervised access to raw NSA data to multiple private contractors. The court also noted that “the improper access granted the [redacted] contractors was apparently in place [redacted] and seems to have been the result of deliberate decision making” including by lawyers.11, 12

10 See also Charlie Savage, NSA Gets More Latitude to Share Intercepted Communications, THE N.Y. TIMES (Jan. 12, 2017) (reporting that Attorney General Loretta Lynch signed new rules for the NSA that permitted the agency to share raw intelligence with sixteen other agencies, thereby increasing the likelihood that personal information would be improperly disclosed), https://www.nytimes.com/2017/01/12/us/politics/nsa-gets-more-latitude-to-share-interceptedcommunications.html; See also Exec. Order No. 12,333, 3 C.F.R. 200 (1982), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003).

11 FISC Mem. and Order, p. 19, 87 (Apr. 26, 2017) www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (noting that 85% of the queries targeting American citizens were unauthorized and illegal).

12 This classified and heavily redacted opinion is one of the documents for which defense counsel requests a security clearance and access.

As a threshold matter, Powell gets virtually everything about the Collyer memo wrong. Collyer didn’t track any increase in “about” searches (it was one of the problems with her memo, that she didn’t demand new numbers on what NSA was doing). It tracked a greater number of certain kinds of violations than previously known. The violation resulting in the 85% number she cited was on US persons targeted between November 2015 and May 2016, but the violation problem existed going back to 2012, when Flynn was still part of the Deep State. What Collyer called a Fourth Amendment violation involved problems with 704/705b targeting under FISA, which are individualized warrants usually tied to individualized warrants under Title I (that is, the kind of order we know targeted Carter Page), and probably a limited set of terrorism targets. Given that the Comey memo almost certainly hides evidence that Flynn was not targeted under FISA as of February 8, 2017, it means Flynn would have had to be a suspected terrorist to otherwise be affected. Moreover, the NSA claimed to have already fixed the behavioral problem by October 4, 2016, even before Carter Page was targeted. I had raised concerns that the problems might have led to problems with Page’s targeting, but since I’ve raised those concerns with Republicans and we haven’t heard about them, I’m now fairly convinced that didn’t happen.

At least some of the FBI violation — letting contractors access raw FISA information — was discontinued in April 2016, before the opening of the investigation into Trump’s flunkies, and probably all was discontinued by October 4, 2016, when it was reported. One specific violation that Powell references, however, pertains to 702 data, which could not have targeted Flynn.

Crazier still, some of the problems described in the opinion (such as that NSA at first only mitigated the problem on the tool most frequently used to conduct back door searches) cover things that happened on days in late January 2017 when a guy named Mike Flynn was National Security Advisor (see PDF 21).

Powell should take up her complaints with the guy running National Security at the time.

Craziest still, Powell describes data collected under EO 12333 as “illegally obtained information” (Powell correctly notes that the Obama Administration permitted sharing from NSA to other agencies, but that EO would not affect the sharing of FISA information at all). If EO 12333 data, which lifetime intelligence officer Mike Flynn used through his entire career, is illegally obtained, then it means lifetime intelligence officer Mike Flynn broke the law through his entire government career.

Sidney Powell is effectively accusing her client (incorrectly) of violating the law in a motion that attempts to argue he shouldn’t be punished for the laws he has already admitted breaking.

In short, most of the stuff we can check in this motion doesn’t help Flynn, at all.

And at least before Powell submitted this, Emmet Sullivan seemed unimpressed with her claims of abuse.

The government and Flynn also submitted a status report earlier on Friday. In the status report, the government was pretty circumspect. Flynn’s cooperation is done (which is what they said almost a year ago), they’d like to schedule sentencing for October or November, and they’ve complied with everything covered by Brady. Anything classified, like Powell is demanding, would be governed by CIPA and only then discoverable if it is helpful to the defense.

Powell made more demands in the status report, renewing her demand for a security clearance and insisting there are other versions of the Flynn 302.

To sort this out, the government suggested a hearing in early September, but Powell said such a hearing shouldn’t take place for another month (during which time some of the IG reports she’s sure will be helpful will come out).

The parties are unable to reach a joint response on the above topics. Accordingly, our respective responses are set forth separately below. Considering these disagreements, the government respectfully requests that the Court schedule a status conference. Defense counsel suggests that a status conference before 30 days would be too soon, but leaves the scheduling of such, if any, to the discretion of the Court. The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

Judge Sullivan apparently sided with the government (and scheduled the hearing for a date when Flynn’s attorneys claim to be unable to attend).

Every time Flynn has tried to get cute thus far, it has blown up in his face. And while Sullivan likely doesn’t know this, the timing of this status hearing could be particularly beneficial for the government, as they’ll know whether Judge Anthony Trenga will have thrown out Bijan Kian’s conviction because of the way it was charged before the hearing, something that would make it far more likely for the government to say Flynn’s flip-flop on flipping doesn’t amount to full cooperation.

And this filing isn’t even all that cute, as far as transparent bullshit goes.

The Ongoing Question of Trump’s (and His Flunkies’) Susceptibility to Compromise by Russia

One of Robert Mueller’s most remarkable lines in his testimony to the Judiciary and Intelligence Committees last week was a follow-up in the latter hearing to a Raja Krishnamoorthi question about how Mike Flynn’s lies exposed him to compromise.

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

MUELLER: Correct.

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

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

Two and a half years after Flynn was fired, the FBI is still trying to figure out what kind of damage his venality and lies put America at risk

It should surprise no one following closely that the FBI is still looking into different aspects of how Flynn’s lies — both about Russia and about Turkey — exposed him to compromise. After all, a footnote in the Mueller Report that should describe what happened to the counterintelligence investigations into Flynn remains redacted to protect ongoing investigations.

There’s still a redaction in Flynn’s cooperation addendum that likely pertains to something that went through Mueller but cannot yet be unsealed, which I suspect is a counterintelligence investigation. In March, prosecutors in Bijan Kian’s case said at least one other district had an ongoing investigation into matters relating to Flynn (after correcting himself for saying districts, plural, had such investigations). And just recently, Kian’s lawyers disclosed that prosecutors had told them there was classified evidence showing Ekim Alptekin’s efforts to cultivate Flynn and through him, Trump, outside of his consulting company.

Prosecutors wrote to lawyers for Flynn’s ex-lobbying partner Bijan Kian that the US government was “in possession of multiple, independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn, and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign, without any reference to the defendant of FIG.”

Then there are the new materials released by the Oversight Committee showing how willing Flynn was to entertain a corrupt proposal to sell nukes to Saudi Arabia.

(Note, it’s a bit ironic that one of the other National Security Advisors to plead guilty to a crime spoke to Flynn of the Christmas vacation during which he had tried to secretly undermine Barack Obama’s punishment of Russia for its interference in the election spoke to Flynn of his “conviction” in the new year.)

By August 2017, Flynn was being investigated for four things, and it’s not clear we yet know all of them.

Now that Bijan Kian has been convicted, Flynn may be scot free (though the timing on his sentence will be a bit awkward, given that Judge Trenga may still overturn one or both of his convictions in early September, after Flynn’s next status hearing). But, in one of the big disclosures Mueller made last week, he revealed that the FBI is still investigating all the ways the General’s venality put the United States at risk in his short time as Trump’s top national security advisor.

And that’s just one aspect of the most important confirmations of the Mueller hearings.

When the Mueller Report came out (and even more so, when the four page Barr summary came out), denialists proclaimed that the Report (that is, the Barr summary) proved that concerns about Trump being compromised by Russia had been proven false — the substantive concern that led to the Trump investigation in the first place. The damning details of Trump’s interactions with Russia left unmentioned in the Mueller Report, as well as the descriptions of the separate FBI track of the counterintelligence investigation, already suggested that wasn’t true.

But on several different occasions, Mueller made it clear that nothing in his report rules out Trump or Flynn or several other people having been blackmailed by Russia.

To be clear, Mueller makes it clear that Trump is not a “Russian agent,” meaning the report does not present evidence that Trump is willfully doing Russia’s bidding.

WENSTRUP: So a member of this Committee said President Trump was a Russian agent after your report was publicly released. That statement is not supported by your report, correct?

MUELLER: That is accurate. Not supported.

But three other times, Mueller does not dispute and at times agrees that Trump and his flunkies’ actions pose a blackmail threat. He didn’t disagree on this point with Lou Correa:

CORREA: I may begin because of time limits we have gone in depth on only five possible episodes of obstruction. There’s so much more. And I want to focus on another section of obstruction which is the president’s conduct concerning Michael Flynn, the president’s national security advisor.

In early 27, the White House Counsel and the president were informed that Mr. Flynn had lied to government authorities about his communications with the Russian ambassador during the Trump campaign in transition. Is this correct?

MUELLER: Correct.

CORREA: If a hostile nation knows that a U.S. official has lied publicly that can be used to blackmail that government official, correct?

MUELLER: I’m not going to speak to that. I don’t disagree with it necessarily, but I’m not going to speak to — anymore to that issue.

With Adam Schiff, Mueller seemingly agreed that Flynn’s lies could expose him, though he refused to answer Schiff’s question about the President specifically:

SCHIFF: You have, I think we can all see that. And befitting the times, I’m sure your reward will be unending criticism, but we are grateful. The need to act in ethical manner is not just a moral one, but when people act unethically it also exposes them to compromise particularly in dealing with foreign powers, is that true?

MUELLER: True.

SCHIFF: Because when someone acts unethically in connection with a foreign partner, that foreign partner can expose their wrongdoing and extort them.

MUELLER: True.

SCHIFF: And that conduct — that unethical conduct can be of a financial nature if you have a financial motive or elicit business dealing, am I right?

MUELLER: Yes.

SCHIFF: It could also just involve deception. If you are lying about something that can be exposed, then you can be blackmailed.

MUELLER: Also true.

SCHIFF: In the case of Michael Flynn, he was secretly doing business with Turkey, correct?

MUELLER: Yes.

SCHIFF: That could open him up to compromise that financial relationship.

MUELLER: I presume.

SCHIFF: He also lied about his discussions with the Russian ambassador and since the Russians were on the other side of the conversation, they could have exposed that, could they not?

MUELLER: Yes.

SCHIFF: If a presidential candidate was doing business in Russia and saying he wasn’t, Russians could expose that too, could they not?

MUELLER: I leave that to you.

But Krishnamoorthi’s full exchange with Mueller not only gets him to acknowledge that Trump lied about his Trump Tower deal (and continued to lie during the investigation), but establishes that at least some of Trump’s possible vulnerabilities because of his financial ties were not included in Mueller’s investigation.

KRISHNAMOORTHI: Director, since it was outside the purview of your investigation, your report did not reach counterintelligence conclusions regarding the subject matter of your report.

MUELLER: That’s true.

KRISHNAMOORTHI: For instance, since it was outside your purview, your report did not reach counterintelligence conclusions regarding any Trump administration officials who might potentially be vulnerable to compromise of blackmail by Russia, correct?

MUELLER: Those decisions probably were made in the FBI.

KRISHNAMOORTHI: But not in your report, correct?

MUELLER: Not in our report. We avert to the counterintelligence goals of our investigation which were secondary to any criminal wrongdoing that we could find.

KRISHNAMOORTHI: Let’s talk about one administration official in particularly namely President Donald Trump. Other than Trump Tower Moscow, your report does not address or detail the president’s financial ties or dealings with Russia, correct?

MUELLER: Correct.

KRISHNAMOORTHI: Similarly since it was outside your purview your report does not address the question of whether Russian oligarchs engaged in money laundering through any of the president’s businesses, correct?

MUELLER: Correct.

KRISHNAMOORTHI: And of course your office did not obtain the president’s tax returns which could otherwise show foreign financial sources, correct?

MUELLER: I’m not going to speak to that.

KRISHNAMOORTHI: In July 2017 the president said his personal finances were off limits, or outside the purview of your investigation and he drew a “red line,” around his personal finances. Were the president’s personal finances outside the purview of your investigation?

MUELLER: I’m not going to get in to that.

KRISHNAMOORTHI: Were you instructed by anyone not to investigate the president’s personal finances?

MUELLER: No.

KRISHNAMOORTHI: Mr. Mueller, I’d like to turn your attention to counterintelligence risks associated with lying. Individuals can be subject to blackmail if they lie about their interactions with foreign countries, correct?

MUELLER: True.

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

MUELLER: Correct.

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

KRISHNAMOORTHI: Thank you. As you noted in Volume two of your report, Donald Trump repeated five times in one press conference, Mr. Mueller in 2016 “I have nothing to do with Russia.”

Of course Michael Cohen said Donald Trump was not being truthful, because at this time Trump was attempting to build Trump Tower Moscow. Your report does not address whether Donald Trump was compromised in any way because of any potential false statements that he made about Trump Tower Moscow, correct?

MUELLER: I think that’s right — I think that’s right.

The FBI continues to assess the damage done by Flynn’s vulnerability to compromise. But Mueller didn’t say whether the FBI continues to assess whether the President’s own lies and entanglements have made him vulnerable to compromise.

That’s not to say they have — as Mueller said, the report does not show Trump to be an agent of Russia.

But the Mueller Report does not say, one way or another, whether Russia has been able to manipulate Trump by getting him to lie to America about his entanglements with Russia.

The Original Subpoenas in the Mike Flynn FARA Investigation

The trial of Mike Flynn partner Bijan Kian, which gets started today in earnest, is as interesting for the exhibits reflecting on Flynn himself as they are for the Kian case (which he still stands a good chance of winning, given a variety of reasons). For example, yesterday the government had to file a motion to compel production from Covington, the law firm of Flynn’s original lawyer Rob Kelner, to obtain documents they presumably already obtained voluntarily from Flynn.

On Friday, July 12, 2019, the government verbally requested that current counsel for FIG produce these materials, and noted that time was of the essence, given that trial was scheduled to begin on Monday, July 15. Also on July 12, the government emailed this request to FIG’s current counsel and to Covington, attaching the April 5th subpoena, the June 15th subpoena, and the Court’s memorandum opinion. Covington responded by email the same day, copying FIG’s current counsel and General Flynn’s current counsel, and proposed that the government engage with them because they are the ones who would have to authorize any production at this point because the documents belong to them. To date, neither FIG’s current counsel nor General Flynn’s current counsel have responded to the government’s request to produce these documents.

If nothing else, any current resistance from Flynn to providing these documents will establish more evidence for Emmet Sullivan that Flynn is trying to undermine the government’s case against Kian (which may well succeed).

But the motion is interesting, as well, for what it reveals about how Flynn’s false FARA filing turned into charges.

The concern that the government would subpoena Flynn for FARA backup appears repeatedly in the notes his current lawyers released recently.

On April 5, 2017 — less than a month after Flynn submitted his FARA filing — EDVA prosecutor William Sloan sent a subpoena anyway, at first asking for a ton of organizational documents on Flynn Intelligence Group, asking for records including internal memoranda on Inovo BV, Ekim Alptekin, Ibrahim Kurtulus, and FIG’s work for Turkey and Inovo specifically. On June 15, 2017, Brandon Van Grack — using his EDVA address, not his Special Counsel one yet (it’s not clear Mueller’s grand jury had been convened yet) — sent another subpoena. The language of the subpoena should largely have covered the same material — asking for any and all documents relating to FIG, including internal memoranda generally, dated from January 1, 2014 to the present. This subpoena named Flynn Sr, his spawn, and Bijan Kian specifically. It also asked for,

a copy of any FIG LLC and FIG INC documents and physical objects that you have provided to Congress or any congressional committees from January 1, 2014, to present.

The second, broader subpoena, particularly with the reference to congressional requests, would have incorporated Russian matters, such as Flynn’s spawn’s notes after their meeting with Sergey Kislyak.

In his sentencing memo, Flynn said that he had voluntarily provided documents (but admitted there were still five productions of documents produced after he pled).

Even before his voluntary pre-plea proffer sessions, he had chosen to produce sweeping categories of documents held by his two companies, rather than fight over the breadth of subpoenas, and facilitated the production of electronic devices. After his Plea Agreement, he made another five productions of documents.

This may or may not be a big deal, but if going to trial without Flynn’s cooperation but with broad waivers of Covington’s privilege leads to him having to fully respond to an admittedly broad subpoena he always treated as voluntary, it may have some risk for Flynn going forward.

In which case Flynn might still be in the running for the Trump associate who fucked up good lawyering in most spectacular fashion.

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

On Mike Flynn’s Previously Undisclosed Interactions with Ekim Aptekin

In Friday’s pre-trial hearing for former Mike Flynn partner Bijan Kian, Kian’s attorneys revealed something prosecutors had told them in discovery: that Flynn had more ties with Alptekin than has been made public.

Prosecutors wrote to lawyers for Flynn’s ex-lobbying partner Bijan Kian that the US government was “in possession of multiple, independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn, and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign, without any reference to the defendant of FIG.”

Flynn’s new firebreather lawyer Sidney Powell thinks this is all about him, and as such suggests this is a last minute attack on Flynn because he reneged on a key part of his plea allocution.

Kian’s attorney Mark MacDougall read the statement at a court hearing Friday morning. He implied that the newly revealed information about Flynn — which was not part of his admitted crimes in his plea deal with special counsel Robert Mueller — may be classified.

Flynn’s attorney Sidney Powell responded to the new accusation Friday, saying, “We have no idea what the government is talking about. It smacks of desperation.”

Admittedly, having blown up his plea deal, she now has to worry about anything that would provide cause to change the government stance on Flynn’s sentencing. And she’s probably — though not definitely — correct that this is something the government had in hand when they supported probation for Flynn. I do keep thinking of the redaction in the Mueller Report — a footnote that must explain the outcome of the counterintelligence investigation into Flynn — signaling an ongoing investigation.

Though I still think that likely relates to the investigation into Flynn’s Russian ties, not his Turkish ones.

That said, Powell’s concerns have to go beyond whether this is new information. The revelation that the government has proof that Alptekin’s efforts to influence Flynn go beyond the Flynn Intelligence Group consulting contract provide key background information to some of the files Powell released in an already unpersuasive effort to claim Flynn was fully forthcoming with his former, competent attorney, Rob Kelner, when they filed Flynn’s FARA submission in 2017. Of particular note, in the notes of the last interview recorded before the filing itself, Flynn told Kelner that he didn’t remember key parts of the relationship with Alptekin — neither the “consulting” agreement itself (which was really a kickback scheme) nor any side conversations about it.

It may well be that Flynn forgot those details, but if there are independent communications between Flynn and Alptekin, his claim to Kelner that Bijan was conducting all discussions with Alptekin seems demonstrably false.

The very last line of the first interview between Covington and Flynn, on January 6, 2017, shows him claiming he spoke with Alptekin “a handful of times.”

More interestingly, in that interview and elsewhere, Flynn downplays his role in the FIG consulting because he was on the campaign trail, away from Washington.

From the standpoint of claiming you weren’t lobbying, noting you were on the campaign with Trump might help. But if the point of all this, for Turkey, was to pay Flynn a half million dollars to (as his firebreather attorney claims) write an op-ed precisely to ensure they had access to someone who was spending all his time with Trump, then it actually hurts him.

The government claims that when Flynn downplayed the involvement of Turkey in his FARA filing, he did it knowingly and intentionally. If these notes — released by his own firebreather defense attorney — show him downplaying the extent of his relationship with Alptekin, that’s going to seriously undermine that claim.

Sidney Powell Believes She Can Bullshit Emmet Sullivan at No Risk to Her Client Mike Flynn

In her filing responding to Judge Sullivan’s orders for an update on sentencing, Mike Flynn’s lawyer Sidney Powell makes it clear she’s trying to blow up the government’s case against Bijan Kian while pretending her client hasn’t outright reneged on his cooperation deal with the government. Largely, her filing repeats the claims she made in her Bijan Kian filing, claiming that any errors in the FARA filing were the fault of Covington, while providing documents showing that at the very last transcribed meeting they provide records for, Flynn was lying to his lawyer Rob Kelner.

But there are two interesting touches to what she submitted today.

First, she talks repeatedly about how cooperative Flynn has been with EDVA prosecutors, repeating the total time he has spent — 30 hours — twice, and complaining about the money he has had to pay to cooperate. But here’s the schedule of meetings with prosecutors she provided. It shows that Flynn hasn’t spent any time working with prosecutors since the less than four hours on the day he fired Kelner and hired Powell.


Instead, Flynn appears to have spent three weeks with Powell, inventing a new story about his lies leading up to his FARA filing, which led to the meeting on June 27 where everything blew up.

Then there are the handwritten notes and a typed version of that meeting with prosecutors where they blew up Flynn’s cooperation. The attorney who submitted these calls the typed version a “transcri[ption] of my handwritten notes” (for included portions, they’re generally accurate).

Except there’s a whole swath of the discussion that doesn’t appear in her notes at all — including a line from Powell that clearly was designed to blow up the Kian case, suggesting that the government didn’t have a case (Note, I assume these notes are missing because an entire page is missing from what they’ve submitted, and that the notes actually exist, not that she didn’t take them; I assume they’ll fix this exhibit in the docket).

In addition to Powell’s inflammatory statement, Flynn’s lawyers also have not yet submitted the notes taken of AUSA Neil Hammerstrom pointing out that the time for Flynn to make this case was in the two different plea colloquies he made under oath. (Again, I’m sure they’ll correct this omission, but it’s pretty sketchy to leave this stuff out.)

The thing is, again, it’s clear Flynn was lying even in the last meeting with Covington before the FARA submission, at least as the record stood the other day.

This will surely play well on Fox News. But I’m guessing that Emmet Sullivan will be able to sniff out the bullshit.

Mike Flynn got paid over half a million dollars for what his lawyer currently says was just “writing op-ed” (he didn’t write it–he just slapped his name on it). What she neglects to mention is that during that time, he was getting Top Secret briefings as Trump’s top National Security Advisor, which is why it matters that Flynn was hiding, in November 2016 when he published the op-ed, and still in March 2017 when he claimed to correct the record, that he was secretly on the payroll of the government of Turkey.

With Latest Stunt, Mike Flynn May Save Bijan Kian from Prison Time But Double His Own

When Mike Flynn hired new counsel, it became clear he was … up to something. Now that something might get him — and possibly even his son (concerns about whom motivated Flynn to cooperate in the first place) — sent to prison. Or, it might spectacularly fuck over the government. We’ll find out next week, when Flynn’s former partner Bijan Kian goes on trial … or maybe sooner, given that Emmet Sullivan has demanded details on the backstory before the end of the week.

Filings unsealed in Kian’s case make it clear that, since the time Flynn replaced the very good Rob Kelner with Fox News firebreather Sidney Powell and Jesse Binnall, he reneged on a key part of his guilty plea. He newly claimed to prosecutors that that he had not knowingly lied about working for Turkey in the March 7, 2017 FARA filing that admitted Turkey might benefit — but denied they were paying for — his services. In response, the government has informed Kian they will not have Flynn testify at trial, and instead tried to name him a co-conspirator and submit one of his statements as the statements of a co-conspirator. That led to the unsealing of these documents, with Kian trying to prevent the government from upending their defense strategy, which has consisted of portraying Flynn as a liar, and Flynn trying to prevent the government from designating him a co-conspirator. Last night, Judge Anthony Trenga ruled largely for Kian on a  bunch of other matters (which may have interesting effects for FARA and 951 prosecutions in EDVA); along the way Trenga ruled that the government has not sufficiently shown a conspiracy to violate 951 such that they can enter Akim Alptekin’s statements as a co-conspirator. That will also prevent them–at least as of now–from entering one exhibit involving Flynn as the statement of a co-conspirator, unless and until they submit enough evidence at trial to lay out such a conspiracy (though that exhibit will be admissible under other standards). Naming Flynn a co-conspirator might make it easier to prove a conspiracy, but they’re not there yet.

To be sure, Kian (who like Flynn hired really good lawyers but unlike Flynn did what they told him and also didn’t fire them) already stood a good chance of prevailing at trial, because Trenga is really skeptical of the way the government charged this, including their initial decision not to treat Flynn himself as a co-conspirator. But the chaos Flynn has caused by reneging on his testimony may be the final straw that sinks the government’s case.

All that said, Flynn’s decision to renege on his testimony may have short-circuited a plan to challenge his guilty plea down the road. That’s because Emmet Sullivan has ordered the parties to immediately explain how the government’s decision not to have Flynn testify will affect his sentencing, which had been delayed exclusively for that purpose.

Flynn’s motion objecting to being named a co-conspirator is what you’d expect from a firebreather. It makes a lot of allegations about Flynn being pressured to plead the way he did and invokes David Laufman, whom the frothy right has inserted into some of their hoaxes, to suggest that it was improper for DOJ to insist that the National Security Advisor disclose that he had been on Turkey’s payroll while ostensibly serving as Trump’s top national security advisor during  the campaign.

A key part of this strategy appears to be to review Kelner’s prior work, and blame him for the decisions already made.

This really fucks over Kelner, who in December was on the verge of getting his client no prison time before Flynn decided to use his sentencing as an opportunity to discredit the prosecution of him for acting as an unregistered foreign agent while getting Top Secret briefings, and who might still have saved him from prison time had he simply testified in the Kian trial as planned. Kelner will be unable to rebut some of the claims Powell is making, because Flynn gets to decide what privilege to waive, not Kelner. Flynn has probably not even paid Kelner due recompense for that work! Note, too, how Kelner is exposed by Flynn’s own lies.

All that said, the case Flynn’s lawyers are making is — typical of the frothy right — better suited for seeding more conspiracies than winning a legal argument. First, they overstate the assurances the government made that Flynn had no danger of being described as a co-conspirator in this case.

The transcript all sides are relying on — the June 13 statement the government tried to correct — does not deny that Flynn was part of the conspiracy, just states that the government won’t label him as such.

THE COURT: Let me ask you this. It’s not in the indictment. Is the government alleging that Mr. Flynn was part of this conspiracy?

MR. GILLIS: We are not, Your Honor.

THE COURT: Right. So you’re not presenting any statements by him, any testimony – there would be no evidence from him as to the existence of the conspiracy?

MR. GILLIS: Well, Your Honor – no. Your Honor, as to that. There will certainly be testimony from General Flynn. And from that testimony, the jury could draw a reasonable inference that there was a conspiracy, but we are not – we do not contend that General Flynn was a part of that conspiracy.

They make it quite clear his testimony would describe actions he was involved in that amount to a conspiracy. The government just wasn’t labeling the guy who was then going to be a friendly witness a co-conspirator. Flynn points to assurances that Gillis told them the government would not charge Flynn in the conspiracy.

Not only did the prosecutors advise the Court on the record that Mr. Flynn is not a coconspirator, AUSA Gillis has stated repeatedly in interviews of Mr. Flynn and representations to counsel that Mr. Flynn was not implicated in the charged conspiracy.4

4 Mr. Gillis informed undersigned counsel and Mr. Flynn twice on June 6 alone that Mr. Flynn was not charged in this conspiracy, and they did not intend to charge him. This is one reason new counsel for Mr. Flynn understood that the government was only interested in and satisfied with Mr. Flynn’s factual testimony as given repeatedly to date–which, as Mr. Gillis put it, “would allow the jury to infer supervision and control” of the project by the Government of Turkey.

These are different things: not alleging Flynn is part of the conspiracy, not contending that he is, not charging him for it, but nevertheless being implicated in it.

Plus, the record before Judge Sullivan is quite clear: absent his cooperation agreement, Flynn could have been charged with both conspiracy and 18 USC 951 (being an Agent of a foreign power).

THE COURT: I think that’s fair. I think that’s fair. Your answer is he could have been charged in that 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?

In other words, as far as Sullivan is concerned, given Flynn’s changed testimony the government now reaffirms that he was part of that conspiracy, as they did in December.

Moreover, Flynn’s lawyers doesn’t seem to understand the purpose of Flynn’s FARA in March 2017, which was to fix a reliance on a commercial exception and admit Flynn that had actually been influence peddling. The March 2017 FARA filing did that. What it didn’t do is admit that Flynn was aware the Turkish government was paying for the work, not just that it might benefit from it (which is what the filing said). What the FARA filing did not do is admit Flynn knew the Turkish government was his actual client, not Inovo.

Thus, showing (as they do) that Kelner learned and expressed concern about Turkey’s role in January 2017 doesn’t prove he knew that the FARA filing was a lie in March. Nor does pointing out that Alpetkin’s lawyers lied. At one point they point to Kelner, in a recent interview with prosecutors, stating that they did not go through all of Flynn Intelligence Group emails, without realizing that that would mean any lies Flynn told to Kelner would be more significant.

In another, they make a big deal that notes of significant legal issues don’t include something — the evolution of the project from one focused on business to one focused on influence-peddling — that was already well established by that point.

Handwritten notes of 2/22/2017 meeting with Mr. Flynn were transcribed a year later and omit the crucial fact that Mr. Flynn told counsel the “business activities” reason that originated the project quickly “crystalized” down to “Gulen” which the raw notes show with a V diagram. The later transcription also omits or misinterprets the fact that the op-ed was pushed at the time for campaign reasons (in addition to for the Inovo project). Compare Ex. 8 with Ex. 9See Ex. 8-A, transcription of handwritten notes.

But there’s abundant reason to believe Flynn’s claim here — that the op-ed in question, which was done for Turkey, was in fact really meant to benefit the campaign — was utter horseshit. And the accurate transcription of these notes reflecting that conversation …

… instead strongly suggests that in the latest document Flynn produced yesterday, his lawyers caught him lying to them about the central purpose of the op-ed, which was to help Turkey.

In other words, the documents released yesterday show that Kelner didn’t read through every FIG document, and that up until the end Flynn continued to lie to him about what the purpose of the November 8, 2016 op-ed was (as clearly shown by other records released in advance of this trial). They support the government’s claim that Flynn knowingly lied in March 2017.

Don’t get me wrong. This strategy, bolstered by months of riling of the frothy right, might well have worked like a charm. It even still may!

But Emmet Sullivan — and the government — are under no obligation to give Flynn’s Fox firebreathers time to sow these new conspiracies.

Plus, Sullivan seems to have expected something like this might ultimately happen, because the last time Flynn tried to sow conspiracies, only to walk them back, Sullivan made sure to put Flynn under oath before he stated that he was satisfied with Kelner’s representation.

THE COURT: All right. I want to focus on the plea first because I think I need to. And there are some questions that I’m going to ask Mr. Flynn, and because this is an extension, in my opinion, of the plea colloquy, I’m going to ask the courtroom deputy at that time to administer the oath, because normally when we have plea colloquies, we always require a defendant to be under oath, and that’s what I’m going to do this morning, unless there are objections.

MR. KELNER: No objection, Your Honor.

[snip]

So I’m going to invite Mr. Flynn and his attorney or attorneys to come to the podium, and I’m going to ask the courtroom deputy to administer the oath to Mr. Flynn.

(MICHAEL FLYNN, DEFENDANT IN THE CASE, SWORN)

THE COURT: All right. And I will inform you, sir, that any false answers will get you in more trouble. Do you understand that?

THE DEFENDANT: Yes.

[snip]

THE COURT: All right. Are you satisfied with the services provided by your attorneys?

THE DEFENDANT: I am.

THE COURT: In certain special circumstances, I have over the years appointed an independent attorney to speak with a defendant, review the defendant’s file, and conduct necessary research to render a second opinion for a defendant. Do you want the Court to consider appointing an independent attorney for you in this case to give you a second opinion?

THE DEFENDANT: I do not, Your Honor.

THE COURT: Do you feel that you were competent and capable of entering into a guilty plea when you pled guilty on December 1st, 2017?

THE DEFENDANT: I do, Your Honor.

THE COURT: Do you understand the nature of the charges against you and the consequences of pleading guilty?

THE DEFENDANT: I do understand, Your Honor.

THE COURT: And that was covered extensively by Judge Contreras. I’ve read the transcript. Are you continuing to accept responsibility for your false statements?

THE DEFENDANT: I am, Your Honor

As bmaz presciently wrote at the time, Sullivan was anticipating he might need to lay the groundwork for a fraud on the court.

All of which is to say, it was always going to be hard for Flynn to pull off backing out of his plea deal, even with the three months Powell asked to prepare.

But Sullivan was already fairly pissed that Flynn was getting off easy for having served the interests of Turkey while also serving as Trump’s top national security advisor. He probably had cooled off in the interim 7 months. Except now Flynn has basically taken steps to suggest he perjured himself in front of Judge Sullivan.

Which at least gives Sullivan the opportunity to sentence him immediately, and harshly.

Update: The government says that Flynn’s change of testimony does raise significant issues for Flynn’s sentencing, but they won’t be sure how until after the Kian trial.

At this time the government cannot speculate on how specifically the aforementioned records will impact the government’s sentencing position in the proceedings before this Court. Although the records raise numerous issues, the Rafiekian trial may still impact the government’s position. For example, Rafiekian could call the defendant to testify at trial. As a result, the government intends to reassess its sentencing position at the conclusion of that trial.

It sounds like they’ll want to move to sentencing shortly after trial, but they do want to wait until after it.

Update: The government just updated its witness list to add Flynn’s spawn. That should make things interesting next week, as the spawn can verify some of the things pops might otherwise do.

Timeline

June 27: Flynn reneges on part of his guilty plea

July 2: Prosecutors tell Kian’s lawyers that Flynn now claims he didn’t know about the lies being submitted in his FARA filing

July 3: Government files a correction to the record, notifying Kian that they will not call Flynn as a witness, will treat him as a co-conspirator, and in so doing, submit one of his statements as evidence

July 5: Kian asks for a hearing to force the disclosure of the correction; asks for hearing to see whether indictment was based of coerced testimony from Flynn

July 6: The government rebuts Kian’s claim that his indictment relied on false Flynn testimony, also noting that it was the defense that assumed Flynn would testify

July 8: Kian complains that his comments in November 2016 about dissolving the Flynn Intelligence Group changed when Flynn was filing fraudulent statements on FARA; Flynn tries to prevent the government from calling Flynn a co-conspirator

The Dates of Mike Flynn’s Interviews

In this post, I listed all the 302s (interview reports) from Mike Flynn reflected in the Mueller Report. This Bijan Kian filing includes a list of other dates which they have not gotten in discovery (marked as [Missing] below; h/t JG). An updated list looks like this:

  • May 26, 2017: Likely pre-cooperation [Missing]
  • November 16, 2017: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call
  • November 17, 2017: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you”
  • November 19, 2017: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump
  • November 20, 2017: Whether he told others at MAL, response to Ignatius
  • November 21, 2017: Whether he told others at MAL, response to Ignatius, meeting with Trump [Missing]
  • November 29, 2017: Peter Smith [Missing]
  • January 11, 2018: November 30 meeting with Kislyak [Missing]
  • January 19, 2018: Flynn did not have specific recollection about telling POTUS on January 3, 2017
  • April 25, 2018: Peter Smith
  • May 1, 2018: Peter Smith
  • June 13, 2018: [Missing]
  • June 14, 2018: [Missing]
  • June 25, 2018: [Missing]
  • July 26, 2018, 2 pager
  • July 26, 2018, 4 pager [Missing]
  • September 26, 2018: Proffer response on meetings with Foresman
  • January 28, 2019: [Missing]
  • April 5, 2019: [Missing]

Here are the known topics:

  • Turkish influence peddling: 4 interviews, unknown dates
  • Transition events, 7 interviews: 11/16/17, 11/17/17, 11/19/17, 11/20/17, 11/21/17, 1/11/18, 1/19/18
  • Peter Smith, 3 interviews: 11/29/17, 4/25/18, 5/1/18
  • Robert Foresman: 1 proffer 9/26/18
  • Unknown topics, up to nine more interviews

As of December 18, 2018, Flynn had sat for 19 interviews (I assume, but am not certain, that the January 24, 2017 and May 26, 2017 ones are pre-cooperation and therefore don’t count). If that’s right, with the two 2019 interviews, he has now sat for 21 interviews. Of the 19 we’ve got these identified (it’s unclear whether the July 26 ones count as one or two interviews):

  1. November 16, 2017: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call
  2. November 17, 2017: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you”
  3. November 19, 2017: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump
  4. November 20, 2017: Whether he told others at MAL, response to Ignatius
  5. November 21, 2017: Whether he told others at MAL, response to Ignatius, meeting with Trump [Missing]
  6. November 29, 2017: Peter Smith [Missing]
  7. January 11, 2018: November 30 meeting with Kislyak [Missing]
  8. January 19, 2018: Flynn did not have specific recollection about telling POTUS on January 3, 2017
  9. April 25, 2018: Peter Smith
  10. May 1, 2018: Peter Smith
  11. June 13, 2018:Kian Trial prep [missing]
  12. June 14, 2018: Kian Trial prep [missing]
  13. June 25, 2018: Kian Trial prep  [missing]; no time recorded
  14. July 26, 2018, 2 pager
  15. July 26, 2018, Kian Trial prep 4 pager [Missing]

Update, 7/14/19: Here are the additional Kian Trial meetings, per this memo (it’s unclear what the four meetings recorded as Kian Trial prep are, given that it’s unlikely the actual 302s are missing; so it’s possible the government is distinguishing between cooperation and trial prep, which would have been — but now won’t be — provided as Jencks given that the government is not calling Flynn as a witness):

  • January 28, 2019: Kian Trial
  • April 5, 2019: Kian Trial
  • June 6, 2019: Kian Trial (in reality, this is just a meeting where Flynn’s new lawyers meet with prosecutors)
  • June 25, 2019: Conversation where Flynn blows up Kian trial

On this list, it’s unclear whether Flynn’s two July 26, 2018 interviews would count as one or two. In any case, it’s virtually certain that the four interviews pertaining to Turkey are among those four not identified in this list (because the defense has already seen those). That would suggest that among those “missing” are all the ones that weren’t otherwise described in the Mueller Report.

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

Mike Flynn Was Renting His Name to the Highest Bidder While Ostensibly Working for Trump

In this post, I noted that for three initial subjects of the FBI’s investigation into Trump associates’ ties with Russia — Paul Manafort, Carter Page, and George Papadopoulos — the campaign gave similar reasons for firing them as the Mueller Report laid out about their behavior.

The fourth initial subject of the investigation is Mike Flynn. The campaign did not fire Flynn for his ties to Russia; in fact, according to some Flynn associates, Trump directed him to reach out to Russia during the campaign.

Nevertheless, last week, Trump complained that he hadn’t been informed that Flynn was under investigation earlier (presumably asking why he wasn’t given a defensive briefing that discussed the investigation into Flynn specifically).

Of course, as I mentioned, we know how Trump would have responded to a warning because we know how Trump responded to Obama’s warning about Flynn: he blew it off.

Still, that should in no way undermine the investigation into Flynn.

The Russian side of the investigation into Flynn, partly for his trip to Moscow where he sat with Vladimir Putin in December 2015, goes largely unmentioned in the Mueller Report, suggesting it may have become a counterintelligence investigation into Russia instead.

But we can review the Bijan Kian indictment — which is based significantly off Flynn’s cooperation — to see how sleazy Flynn was acting while ostensibly serving as one of Trump’s top advisors on the campaign trail.

After the failed coup attempt against Recep Tayyip Erdogan in July 2016 — around the same time Flynn was leading chants of “Lock her up” at the RNC — Erdogan was trying to persuade the American government to extradite Fethullah Gulen, using the coup as an excuse to crack down on a source of power that challenged his regime. After DOJ determined there was still no basis to extradite Gulen, Kian, Ekim Alptekin, and some high ranking Turkish officials reached out to Flynn’s consulting company. They asked what kind of spin Flynn and Kian could generate “on the short and mid-term,” but warned not to read anyone else in.

On July 30 — three months before the election — Kian and Flynn pitched a 3-month plan, again emphasizing the secrecy of the project. On August 2 — the same day Trump’s campaign manager got together with someone suspected of ties to Russian intelligence to talk about how to win Michigan and carve up Ukraine — Kian nudged Alptekin, again emphasizing the secrecy. On August 8, Alptekin approached the Turkish government.

This was also the period when Flynn started getting involved in an effort to find Hillary’s deleted emails from any possible source, including foreign intelligence services.

On August 11 — as the Turkish government grew closer to a deal and as Trump’s campaign manager started engaging in bigger and bigger lies to hide that he had been an Agent of Ukraine — Kian changed the name of the project, which had been “Truth” to “Project Confidence” and introduced Alptekin’s company, Inovo, as the funder as a cut-out t0 hide that Turkey was behind the plan. From that point forward, both Trump’s soon-t0-be-former campaign manager and one of his top national security advisors were engaged in subterfuge in an attempt to hide their work for foreign countries. In Flynn’s case, he was doing that work even as he campaigned for Trump.

On August 17, while negotiating a deal with the government of Turkey, Flynn accompanied Trump for his first intelligence briefing.

Flynn’s deal with Turkey was confirmed, with a 20% kickback to Alptekin for his company’s role as a cut-out, on August 25 and 26. When Kian put together the contract for the project on September 3, he set the start date two weeks after they really started it to hide that it was the same project for Turkey.

On September 8, Flynn would politicize the intelligence briefings he was attending with Trump while being paid by Turkey, claiming briefers indicated some policy differences with Obama.

“The intelligence we’ve received in the last two briefings were in stark contrast to the policy decisions being made,” Flynn said.

“They would say the intelligence professionals, as they should, they would say those are policy decisions,” Flynn continued. “So Donald Trump, in a very, very sophisticated way, was asking tough questions, and they would back off and say, ‘That is not our job, those are policy decisions at the—in this case the White House is making.’ And we would sit there and go, OK, we understand.”

Flynn, however, caught some controversy himself when NBC News reported on Thursday that Flynn was unruly in one of the briefings. The report stated that Trump’s transition chief, Chris Christie, had to calm Flynn down after he repeatedly interrupted intelligence officers with pointed questions.

On September 9, the first check arrived, $200,000, of which $40,000 went back to Alptekin as a kick-back.

On September 19, Flynn and his partners met with Turkish Foreign Minister Mevlut Cavusoglu and Turkish Energy Minister (and Erdogan son-in-law) Berat Albayrak in New York and discussed how to bring about Gulen’s extradition. James Woolsey, attending the meeting as an advisory board member with Flynn’s firm, described the meeting as “a covert step in the dead of night to whisk this guy away.” Woolsey declined his consulting fee after attending the meeting, in part out of legal concern, and let Joe Biden know about it via a mutual friend.

That was a week before the first Presidential debate.

On October 11, two days after the second presidential debate, the second check arrived, $185,000, with another $40,000 kicked back to Alptekin. Two days later, Flynn started reading from talking points scripted by Kian: funding, “Islamists,” and Mullahs.

On October 22, two days after the third debate, Flynn wrote members of the project team, referencing the Turkish officials who were the real customers for the project.

On November 2, days before Americans went to the polls, Flynn’s cut-out demanded more: private investigative work targeting Gulen’s supporters, congressional hearings on his schools. That same day, Kian sent Alptekin an op-ed he had drafted. Kian told Flynn the next day an editor was tightening it up before showing it to Flynn. November 4, Kian sent it to Alptekin, who loved it.

Flynn signed his name to Kian’s work and it was published in The Hill, blaming Gulen for the attempted coup, invoking “professionals in the intelligence community” viewing “the stamp of terror” in Gulen’s ideology, but the language was really written by Kian. The paid op-ed would go on to complain about Gulen’s “vast network of public relations” and his “false façade.”

On November 10, two days after Flynn’s op-ed and Trump’s victory and the day Obama warned Trump against picking Flynn to be his National Security Advisor, the third check came, another $200,000 to do the bidding of Turkey.

Even after the FARA office started nagging Flynn about registering, he stalled for the entire time he was in the White House, even while engaging Turkey and Russia in their joint peace plan for Syria. When he finally submitted his FARA filing on March 7, 2017, he falsely claimed he had written the op-ed as a public figure, not in the service of Turkey.

Trump may not have fired him. But both his wails that he should have been informed Flynn was under investigation (at a briefing Flynn attended) and that this investigation was in any way without predicate belie the sheer audacity with which Flynn sold his name to the highest bidder even while claiming to work for Trump.

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