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675 Days In, the Durham Investigation Has Lasted Longer than the Mueller Investigation

Today marks the 675th day of the Durham investigation into the origins and conduct of the investigation that became the Mueller investigation. That means Durham’s investigation has lasted one day longer than the entire Mueller investigation, which Republicans complained lasted far too long.

The single solitary prosecution Durham has obtained in that span of time in which Mueller prosecuted George Papadopoulos, Mike Flynn, Paul Manafort, Rick Gates, Richard Pinedo, Alex Van der Zwan, Michael Cohen (for his lies about Trump’s Trump Tower Moscow deal) was the guilty plea of Kevin Clinesmith, based on conduct discovered by DOJ Inspector General Michael Horowitz.

In addition to those prosecutions, Mueller referred further Cohen charges to SDNY, Sam Patten for prosecution to DC, and Bijan Kian for prosecution in EDVA. Mueller charged Roger Stone and handed that prosecution off to DC. He further charged Konstantin Kilimnik, 12 IRA trolls, Yevgeniy Prigozhin, and 12 GRU officers. He referred Paul Manafort’s influence peddling partners, Republican and Democratic alike, for further investigation, leading to the failed prosecution of Greg Craig. Mueller referred 12 other matters — most still sealed — for further investigation, along with the Egyptian bribery investigation originally started in DC.

Meanwhile, Durham has never released a public budget, though by regulation he had to submit a budget request to DOJ in December.

Say what you will about Mueller’s investigation. But it was an investigation that showed real results. Durham, meanwhile, has been churning over the work that DOJ IG already did for as long as Mueller’s entire investigation.

The Three Types (Thus Far) of Trump Mueller Pardons

To date, Trump has pardoned five people who were prosecuted by Mueller. I’m seeing a good deal of misunderstanding about what those pardons mean for any legal proceedings going forward, so I’d like to address some of that.

First, a lot of people say that accepting a pardon is tantamount to accepting guilt, under Burdick v.United States. It’s not. It’s narrower, though importantly goes to questions about whether a witness who has been pardoned has to testify or not. It also says that someone who has been pardoned must inform the court of the fact for it to be valid in any legal proceeding before the court.

That said, claims that Trump flunkies who’ve been pardoned have to testify are also too broad. If the people have any remaining legal exposure (as I’ll explain, Roger Stone and Paul Manafort do), they can still invoke the Fifth. That’s also true if they have state exposure for something like fraud or tax evasion. But in cases where the pardoned crime is only federal, such as Papadopoulos’ lies, it would be easy for prosecutors to immunize him in case he invoked his Fifth Amendment privileges, effectively forcing him to testify on penalty of contempt.

Thus far, Trump has issued three kinds of pardons for people prosecuted by Mueller:

  • Pardons for people with no further known (Mueller) legal exposure
  • Pardons for people with potentially grave further legal exposure
  • Fruit of the poison tree pardon for anything Mueller touched

Alex Van der Zwaan and George Papadopoulos:

Both Van Der Zwaan and Papadopoulos were pardoned for the single False Statements charge against them. Neither is known to have committed another crime. In Papadopoulos’ case, however, things could get dicey on several points. Trump forgave his $9,500 fine, which was the amount Papadopoulos accepted from suspected Israeli spooks. If he asks for that back that may raise questions about his exposure on FARA grounds. In addition, Papadopoulos has already testified before Congress that he called Marc Kasowitz after he was first interviewed by the FBI. If there were a larger prosecution about Trump’s obstruction, he might have been able to plead the Fifth for making that call — except he has already testified to it.

Papadopoulos withheld documents from Congress. With a DOJ that can enforce subpoenas, he might be asked to share those documents, which may require him to testify contrary to his 2018 OGR/HJC testimony.

If DOJ decided to reopen the investigation into a suspected Egyptian bribe to Trump because serving a subpoena on Trump Organization would now be less controversial than it was last summer, then Papadopoulos might be a key witness in that investigation, though since that’s unrelated to his charged false statements, he could still invoke the Fifth if questioned about it.

Roger Stone and Paul Manafort:

Like Van der Zwaan and Papadopoulos, Stone and Manafort were just pardoned for the crimes that they were found or pled guilty to, the money laundering, tax evasion, and FARA crimes in Manafort’s case, and the cover-up crimes in Stone’s case. For both, however, that’s not the full extent of what they were investigated or might be witnesses for.

Before I get there, let me note that multiple sources are claiming that, because Trump included Manafort’s criminal forfeiture in the language of his pardon, he’ll get his ill-gotten gains back. I’m not an expert on this, but I do know that Manafort also civilly forfeited these goods in his plea agreement.

So to attempt to reverse this forfeiture, Manafort would have to spend a great deal of money litigating it, and it’s not at all clear it’d work.

Manafort was also referred for suspected FECA violations involving two PACs that, prosecutors suspected, he got paid through via a kickback system. These cases must be closed, because they were unsealed in the Mueller Report back in September. But Manafort may face more scrutiny on them if DOJ investigates Trump’s other corrupt PACs.

Unless he, too, is pardoned, Konstantin Kilimnik remains under investigation. That’s an area where things might get more interesting for Manafort, because during the period when he was purportedly cooperating, he lied about the fact that he had conspired with Kilimnik. In any case, until the Kilimnik and Oleg Deripaska investigations are closed, Manafort has some exposure.

Things are more complicated still for Stone. There were at least two investigations into Stone — probably on conspiracy and foreign agent crimes — still active in April. If the redactions if Mueller 302s are any indication, Barr shut parts of that investigation down since, which will be of interest on its own right (Congress learned of these ongoing investigations when they got unsealed portions of the Mueller Report that have only recently been made public, and I know there is some interest in learning what those investigations were or are, and that was true even before any discussions about Trump’s abuse of pardons).

In any case, the investigation into a pardon for Julian Assange was active at least as recently as October. Stone has already called on Trump to pardon Assange since his own pardon, potentially a new overt act in a conspiracy. And Trump might well pardon Assange; even pardoning him for the crimes currently charged would be a new overt act in that conspiracy, which would implicate Stone. So even if Barr shut that investigation down, there is already reason to reopen it.

So while Barr may have tried to clean up the remaining criminal exposure against Stone, it’s not clear he could succeed at doing so, much less without creating problems for others going forward.

Mike Flynn:

As I have written, Mike Flynn’s pardon was constructed in a way that attempted to eliminate all criminal exposure that might arise from anything associated with the Mueller investigation for him. In addition to pardoning Flynn for the false statements charge he pled guilty to, it pardons him for lying about being an Agent of Turkey, for being an Agent of Turkey, and for lying to Judge Sullivan.

But it also attempts to pardon Flynn for any crime that might arise out of facts known to Mueller. While, generally, I think the pardon power is very broad, this effectively tried to pardon Flynn for an investigation, not for crimes. Plus, the broadness of the pardon may backfire, insofar as it would strip Flynn of the ability to plead the Fifth more broadly. Even just a retrial of Bijan Kian (unless Trump pardons him and Mike Jr) might force Flynn to commit new crimes, because both telling the truth and lying about his secret relationship with Turkey would be a new crime.

Given his seditious behavior, Flynn might have entirely new criminal exposure by the time Joe Biden is sworn in any case. But the attempt to be expansive with Flynn’s pardon might backfire for him.

Of the five Mueller criminals pardoned so far, only Van der Zwaan is clearly free of danger going forward.

And these five don’t even cover some of the most complex pardon recipients. Any Assange pardon may be the most obviously illegal for Trump (save a self-pardon), because it would involve a quid pro quo entered before he was elected. With Steve Bannon, Trump will need to pardon for another crime, fraud associated with Build the Wall, but if it covers Mueller, it may make it easier for Bannon to repeat what truths he already told to the grand jury. With Rudy Giuliani, Trump will need to pardon for unidentified crimes currently under investigation, but also Rudy’s efforts to broker pardons, which may make the pardon itself more dicey. With Trump’s children (including Jared Kushner), I assume he’ll offer a Nixon type pardon for all crimes committed before the day of pardon. But there may be ways to make them admit to these crimes.

Billy Barr is the best cover-up artist in the history of DOJ. But Trump is attempting to pardon himself out of a dicier situation than Poppy Bush was in Iran-Contra. Plus, even assuming Mueller’s team left everything available for Barr’s discovery, Barr may be hamstrung by the fact that he doesn’t believe in most of the crimes Trump committed, something that could become especially problematic as the full extent of Trump’s dalliance with Russia becomes known going forward. Barr didn’t support some of these pardons, like a hypothetical Assange one. And now, in his absence, Trump has grown increasingly paranoid about Pat Cipollone, who will have to shepherd the rest.

The pardon power is awesome and fairly unlimited. But it’s not yet clear the Mueller pardons will do what Trump hopes they will. With virtually all of them, there are loose strings that, if they get pulled, may undo the immunity Trump has tried to offer.

Organized Crime

Know what you call a crowd that requires 25 pardons to cover their illegal activities of the last 5 years?

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.

He has largely frozen out those advisers and associates who do not seem on the same page. One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn’t heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted — or could be targeted in the future — for political ends. That’s in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

Organized crime.

20 Months: A Comparison of the Mueller and Durham Investigations

Because Jonathan Turley and John Cornyn are being stupid on the Internet, I did a Twitter thread comparing the relative output of the Mueller and Durham investigations in their first 18 months. Actually, Durham has been investigating the Russian investigation for 20 months already.

So I did a comparison of the Mueller and Durham investigations over their first 20 months. Here’s what that comparison looks like.

So, in 20 months, Durham went on a boondoggle trip to Italy with Bill Barr to chase conspiracy theories, charged one person, and had his top investigator quit due to political pressure.

In the Mueller investigation’s first 20 months, his prosecutors had charged 33 people and 3 corporations (just Roger Stone was charged after that) and, with Manafort’s forfeiture, paid for much of their investigation.

Update: I’ve corrected the Manafort forfeiture claim. While I haven’t checked precisely how much the US Treasury pocketed by selling Manafort’s properties, I think the declining value of Trump Tower condos means that Manafort’s forfeiture didn’t quite pay for the entire investigation. I’ve also corrected in which month Manafort was found guilty in EDVA.

Update: In response to the Durham appointment, American Oversight reposted the travel records from the Italy boondoggle, which was actually in September, not October (Barr also made a trip to Italy in August 2019 for the same stated purpose, so I wonder if there were two boondoggles). I’ve corrected the timeline accordingly.

Failsons and Kraken Conspiracies: Three Mike Flynn Hypotheticals Trump May Have Tried to Preemptively Pardon

In a hearing in the BuzzFeed FOIA case today, Judge Reggie Walton (who always likes to chat about his conversations with his colleagues in the Prettyman judge’s dining room), said the Flynn pardon might be too broad.

U.S. District Judge Reggie Walton said at a hearing Friday that he doesn’t think U.S. District Judge Emmet Sullivan, his colleague presiding over the Flynn case, “has a lot of options in reference to what he does” after the pardon was granted, “unless he takes the position that the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.”

“I don’t know what impact that would have, what decision he would make, if he makes that determination that the pardon of Mr. Flynn is for a period that the law does not permit. I don’t know if that’s correct or not,” the judge continued. “Theoretically, the decision could be reached because the wording in the pardon seems to be very, very broad. It could be construed, I think, as extending protections against criminal prosecutions after the date the pardon was issued.”

“I don’t know if Judge Sullivan will make that determination or not,” Walton added.

Walton seemed to be suggesting that Sullivan might have a way to hold Flynn accountable in the future, unless the pardon as written is too broad.

That has set off a debate among Legal Twitter arguing what the pardon should mean, not what it does say.

To be sure, the first part of the Flynn pardon is undeniably valid. It pardons Flynn [I’ve added the numbers; which are different from the less helpful ones DOJ uses in their motion],

(1) for the charge of making false statements to Federal investigators, in violation of Section 1001, Title 18, United States Code, as charged in the information filed under docket number 1:17-CR-00232-EGS in the United States District Court for the District of Columbia; (2) for any and all possible offenses set forth in the Information and Statement of Offense filed under that docket number (3) or that might arise, or be charged, claimed, or asserted, in connection with the proceedings under that docket number

This is already too broad, for one reason I’ll get into. But on its face, that language pardons:

  1. The false statements as laid out in the criminal information
  2. The crime of being an undisclosed foreign agent for Turkey, lying to DOJ about it, and conspiring to lie about it
  3. The lies Flynn told Judge Emmet Sullivan in a bid to get out of his prior guilty allocutions

Those are, incidentally, the crimes laid out in the government’s motion to dismiss the case as moot.

The pardon not only encompasses the Section 1001 charge that is the subject of the government’s pending motion to dismiss (Doc. 198), but also any possible future perjury or contempt charge in connection with General Flynn’s sworn statements and any other possible future charge that this Court or the court-appointed amicus has suggested might somehow keep this criminal case alive over the government’s objection (e.g., a charge under the Foreign Agents Registration Act, Section 618(a), Title 22, United States Code, arising out of the facts set forth in the Statement of Offense).

There is nothing controversial about this part of the pardon (aside from the rank corruption of it). It is clear that the pardon is intended to and does cover those crimes that Flynn committed.

But the pardon goes beyond pardoning Flynn for those crimes. It also pardons Flynn for,

any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel appointed on May 17, 2017, including the initial Appointment Order No. 3915-2017 and subsequent memoranda regarding the Special Counsel’s investigatory authority; and any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.

As I noted, it purports to pardon Flynn for any crime that arises out of “facts … known to … the investigation of the Special Counsel,” any crime related to it, or anything arising from the grand juries (not time denominated or named) that investigated Flynn.

I think that is an attempt to stave off any crimes based off information collected as part of this investigation, even if the crime happens in the future. Here are three not-at-all unlikely scenarios:

Flynn reneges on his sworn testimony in a retrial against Bijan Kian in which Mike Flynn Jr also gets charged

Flynn’s partner, Bijan Kian, was found guilty of conspiring to lie about working for Turkey with Flynn in 2016. But then the judge in the case, Anthony Trenga, overturned that verdict. The government is appealing his order. One possible outcome of that appeal is that the government will retry Kian. With Flynn’s plea deal off the table, the government would be free to include Flynn Jr in any potential retrial.

Flynn testified to an EDVA grand jury, under oath, that he knew that he (and so by association, his son and Kian) were secretly working for the government of Turkey in 2016. Prosecutors made a last-ditch attempt to make Flynn a co-conspirator in Kian’s last trial. In a superseding indictment they could make him an unindicted co-conspirator (which would make his communications admissible without his testimony). But it would be very useful to have his testimony as well.

Normally, prosecutors could force a witness to hew to his grand jury testimony on penalty of perjury. In this case, however, Trump has purported to pardon Flynn for anything pertaining to that grand jury. If Flynn lied at trial, could he be charged?

The government discovers further evidence of Flynn’s work as a foreign agent by tying Mueller evidence to evidence withheld

In both the case of Trump outreach to Russia and the case of Flynn’s work with Ekim Alptekin, there’s reason to believe that Flynn and — in the former case — the Trump campaign succeeded in withholding information for the entirety of the Mueller investigation but which DOJ discovered afterwards (I won’t get into the details of what that is here — again, I’ll say more in January).

Flynn’s lies about this information to Mueller or EDVA prosecutors clearly are covered by the pardon.

But if the information reflected an ongoing relationship — existing even now! — with either Russia or Turkey, it would impose registration requirements on Flynn. The government might argue, however, that because these relationships began prior to the period of the Mueller investigation and might never have been discovered if not for the warrants and subpoenas used in the Mueller or EDVA investigations, they are therefore related and Flynn’s prospective failure to register is covered by his pardon. I’m suggesting that the government seems to want to set up a claim that anything that stems from the Mueller investigation would be fruit of a poisonous tree and immune from prosecution.

An ongoing Kraken conspiracy to pay off the pardon

Sometime in the summer, Sidney Powell told Trump not to pardon Flynn, something she entered into the docket before Sullivan by admitting it in the September hearing. She also admitted to Sullivan she had talked repeatedly to Trump’s campaign “lawyer” Jenna Ellis about Flynn’s case. In the following weeks after she spoke with Trump and Ellis, prosecutors fed her information from Jeffrey Jensen’s investigation — some of it altered — that ultimately served as part of a Trump attack on Joe Biden.

Then, after the election, Powell — at first claiming to be representing Trump — took a lead role in undermining the legal outcome of the election in multiple states. Almost immediately, purportedly because Trump believed that Sidney Powell made him look bad in a way that Rudy and Jenna Ellis and Joe DiGenova did not, Trump made clear to distance himself from Powell. The next day he pardoned Flynn. Days later, Flynn called for a coup to overturn the election.

Powell’s use of evidence in Flynn’s case to support false campaign attacks on Joe Biden is already irretrievably tied to Sullivan’s docket. Indeed, he now has real reason to question why Powell was talking with Ellis about this case, why (before the document alteration was discovered) she affirmatively asked Trump to hold off on the pardon only to embrace it later, and what tie there is between the altered documents and the attack Trump launched in the first debate against Biden. Judge Sullivan has reason to ask whether the fraud on the court in this docket is tied to some benefit for Trump, and whether that benefit in some way is tied to the pardon.

But if there is a tie, Sullivan (and Joe Biden’s DOJ) may have reason to ask whether this is a continuing conspiracy, whether Powell and Flynn’s actions after the pardon are part of delivering on a corrupt agreement made before the pardon. It is easy to see how the fraud on the court that remains before Sullivan could be tied to ongoing actions.

DOJ would seem to suggest that those actions, too, are covered by Trump’s pardon.

Again, all three of these scenarios are easily foreseeable. They are the actual fact patterns before Judge Sullivan and a potential Biden Administration.

Mike Flynn’s Son Invoked His Fifth Amendment Privilege Early in the Investigation into His Father

In the wake of the Flynn pardon (the details of which remain uncertain), the frothers are repeating the fictions about the investigation into Flynn that were obviously false in May, when they first started, and have been affirmatively debunked since. Flynn’s son is central to those stories. As a reminder, the claim is that Flynn Sr took a plea deal not because his very credible defense attorneys had counseled him he faced up to 15 years for hiding that he was on Turkey’s payroll during the campaign, but because Mueller threatened his son. Implicit in that claim is that Mike Jr didn’t have any real criminal exposure of his own, but Mueller was nevertheless threatening to trump up an investigation into the failson in November, when his dad took the deal.

Even in General Flynn’s sworn declaration, though, the claim is only that Flynn’s son would be indicted.

  • “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.”

But a warrant recently unsealed in the case suggests that from the start of the investigation, Mike Jr was a focus of the investigation. Along with Flynn himself and Flynn’s partner Bijan Kian, Flynn Jr was subpoenaed for the devices he used in his Flynn Intelligence Group work in July 2017. We know this warrant is his because it was sent to Barry Coburn, who represented the son, because it refers to the father as Michael T. Flynn throughout (which is necessary to distinguish Michael G from his father), and describes the target of the warrant as Flynn’s chief of staff, a role the son played.

Like his father and Kian, Flynn Jr had refused to comply with a subpoena for his devices, and had given his phone to his attorney for safe-keeping. Mueller’s team got warrants for all three as a way to force the attorneys to turn over the phones of their clients.

Unlike the others though, Flynn Jr also got subpoenaed for testimony. His attorney responded by proffering that Flynn Jr would invoke the Fifth Amendment. Among the questions Flynn Jr’s lawyer at least said he’d refuse to answer were:

  1. Are you aware of whether Michael T. Flynn has ever traveled outside of the United States?
  2. Please describe each instance when Michael T. Flynn traveled outside of the United States since August 1, 2014.
  3. Are you aware of whether Michael T. Flynn has ever communicated with a foreign government official?
  4. Please describe each instance when Michael T. Flynn communicated with a foreign government official since August 1, 2014.

Prosecutors seemed to be pushing Flynn Jr to appear before the grand jury and invoke the Fifth question by question — but it’s unclear what did happen.

One way or another, however, General Flynn’s son’s lawyer was telling Mueller’s prosecutors as early as July that answering questions that would cover his trip to Russia for the RT gala would incriminate him.

That suggests it wasn’t just Flynn’s lawyers at Covington who believed, four months later, that Flynn Jr might be at risk of prosecution.

Update: Mike Flynn Jr has become a Twitter fan of mine. Last night he assured me there was zero chance he’ll ever be indicted.

I may be misunderstanding, but this seems to suggest that Daddy’s claims he only pled was to keep Jr out of trouble — as asserted by Flynn in a sworn statement, above — are false. I mean, he may be accusing Pops of perjury, which seems to be an odd way to celebrate a pardon.

Trump Pardons an Undisclosed Agent of Turkey Along with a Thanksgiving Bird

Update: Trump has indeed pardoned the Agent of Turkey along with a farmyard turkey.

The significance of this, however, will depend on the wording of the pardon. 

At least three outlets (CNN, Axios, NYT) have reported the entirely unsurprising news that Trump is considering pardoning admitted liar and undisclosed Agent of Turkey, Mike Flynn. Only the NYT provides a reasonable account of what has happened since DOJ moved to dismiss the case, and only after repeating Trump’s false claims about the investigation.

None of the outlets reviewed how complex successfully pardoning Flynn will be, without making Trump’s — or Flynn’s son’s — fate worse. That’s true because the posture of the Flynn case before Judge Emmet Sullivan is such that Sullivan has multiple possible options for holding Flynn accountable, depending on when Sullivan moves and when Trump does.

If Trump pardoned Flynn for the crimes to which Flynn pled guilty, false statements, today, a Foreign Agent of Turkey pardoned right alongside a Thanksgiving turkey — then DOJ’s motion to dismiss the prosecution for Flynn’s false statements charges would likely be mooted. But there’s still a pending motion to withdraw Flynn’s plea before Judge Sullivan, which by itself mooted DOJ’s promises not to prosecute Flynn for hiding that he was working for the government of Turkey rather than just a foreign business in a FARA filing in March 2017. Plus, when Flynn pled, it was understood that would end the investigation, but given that he reneged on his plea, there’s nothing stopping DOJ from investigating Mike Jr for his involvement with Turkey, if Flynn were pardoned.

So to get Flynn out of immediate legal jeopardy, Trump would need to pardon Flynn for crimes to which he pled guilty — the false statements to hide Trump’s involvement in “colluding” with Russian to undermine US policy — but also the crime to which Flynn didn’t plead guilty, hiding that he was an Agent of Turkey while getting classified briefings during the 2016 campaign. That’s all the more true given that DOJ’s appeal of the Bijan Kian case is still unresolved (it is scheduled for oral argument on December 11), and trying Kian along with Mike Flynn, charged as a co-conspirator, would eliminate many of the legal difficulties from the first trial.

Trump might even have to pardon Flynn Jr.

But that’s still not adequate. Flynn made multiple materially conflicting statements before Judge Sullivan and the grand jury. When directing amicus John Gleeson on what he should consider, Sullivan asked whether he should hold Flynn in contempt. Gleeson said that, instead, he should consider those additional lies when sentencing him on the charged crimes. DOJ argued that Sullivan should, instead, refer the charges to DOJ. Even if Sullivan referred those charges today and Bill Barr declined prosecution (as DOJ made clear in hearings they would), Biden’s DOJ could reopen the case. So to get Flynn out of trouble for his efforts to blow up his own prosecution, Trump would have to pardon those crimes as well. But if Trump pardoned Flynn today, Sullivan could wait and ultimately hold Flynn in contempt; while Trump succeeded in freeing Joe Arpaio of criminal contempt with a pardon, it’s not clear whether that could work preemptively.

Assuming Trump does pardon Flynn for some or all of these crimes, it would add several overt actions to obstruction charges against himself. So unless he’s sure that Mike Pence would give him a last minute pardon (or certain that his own self-pardon would withstand legal review), then pardoning all Flynn’s crimes would pile up his own exposure.

Then, if Trump does pardon Flynn, it will surely become a matter for a hearing before one or the other of the Judiciary Committees into Trump’s abuse of the pardon power. Flynn will have no Fifth Amendment privilege and Biden’s DOJ will have the ability to enforce contempt motions from Congress. As I have noted, in the process of attempting to blow up Flynn’s prosecution, Ric Grenell and Sidney Powell and DOJ have released documents that will make it far harder for Mike Flynn to sustain his claim not to remember what Trump’s involvement in the “collusion” with Russia was. Public testimony (or even depositions run by staffers) might elicit evidence that would subject Trump himself to conspiracy charges or might result in new false statements charges.

Finally, there’s the matter of the documents that got altered as part of DOJ’s effort to blow up Flynn’s prosecution. There, Flynn is probably totally safe from legal jeopardy. But the lawyers might not be, at least at DOJ and possibly including Sidney Powell and Jenna Ellis. Importantly, at the time of that effort, there was no conceivable privilege protecting discussions between Flynn’s defense attorney and Trump’s campaign lawyer, nor between Powell and Trump. Since then, Powell’s involvement in Trump’s attempts to lie about the election have been contested (and Trump and Powell could both face consequences for their lies on that front). So Trump’s decision to pardon Flynn now after being told by Powell before September that Flynn didn’t want a pardon would raise questions about its tie to the election.

Don’t get me wrong: The pardon power is awesome, and assuming a competent lawyer like Pat Cipollone is involved in the process, Trump might manage to negotiate all these risks and successfully ensure that Flynn does no prison time for his crimes. But this is the kind of complexity that Trump will face as he tries to pay off those who protected him.

How the Concord Management Prosecution Fell Apart

The frothy right and anti-Trump left both politicized DOJ’s decision to dismiss the single count of conspiracy charged against Concord Management and Concord Catering in the Russian troll indictment that Mueller’s team obtained on February 16, 2018. The right — including the President — and the alt-Left are falsely claiming the prosecution against all the trolls fell apart and suggesting this undermines the claims Russia tampered in the 2016 election.

The mainstream left speculated, without any apparent basis, that Bill Barr deliberately undermined the prosecution by classifying some of the evidence needed to prove the case.

The politicization of the outcome is unfortunate, because the outcome raises important policy questions about DOJ’s recent efforts to name-and-shame nation-state activities in cyberspace.

The IRA indictment intersects with a number of important policy discussions

The decision to indict the Internet Research Agency, its owner Yevgeniy Prigozhin, two of the shell companies he used to fund Internet Research Agency (Concord Management and Concord Catering, the defendants against which charges were dropped), and twelve of the employees involved in his troll operations intersects with three policy approaches adopted in bipartisan fashion in recent years:

  • The use of indictments and criminal complaints to publicly attribute and expose the methods of nation-state hackers and the vehicles (including shell companies) they use.
  • A recent focus on Foreign Agents Registration Act compliance and prosecutions in an attempt to crack down on undisclosed foreign influence peddling.
  • An expansive view of US jurisdiction, facilitated but not limited to the role of the US banking system in global commerce.

There is — or should be — more debate about all of these policies. Some of the prosecutions the US has pursued (one that particularly rankles Russia is of their Erik Prince equivalent, Viktor Bout, who was caught in a DEA sting selling weapons to FARC) would instill outrage if other countries tried them with US citizens. Given the way Trump has squandered soft power, that is increasingly likely. While DOJ has obtained some guilty pleas in FARA cases (most notably from Paul Manafort, but Mike Flynn also included his FARA violations with Turkey in his Statement of the Offense), the FARA prosecutions of Greg Craig (which ended in acquittal) and Flynn’s partner Bijan Kian (which ended in a guilty verdict that Judge Anthony Trenga overturned) have thus far faced difficulties. Perhaps most problematic of all, the US has indicted official members of foreign state intelligence services for activities (hacking), though arguably not targets (private sector technology), that official members of our own military and intelligence services also hack. That’s what indictments (in 2014 for hacks targeting a bunch of victims, most of them in Pittsburgh and this year for hacking Equifax) against members of China’s People’s Liberation Army and Russia’s military intelligence GRU (both the July 2018 indictment for the hack-and-leak targeting the 2016 election and an October 2018 one for targeting anti-doping organizations) amount to. Those indictments have raised real concerns about our intelligence officers being similarly targeted or arrested without notice when they travel overseas.

The IRA indictment is different because, while Prigozhin runs numerous mercenary activities (including his Wagner paramilitary operation) that coordinate closely with the Russian state, his employees work for him, not the Russian state. But the Yahoo indictment from 2017 included both FSB officers and criminal hackers and a number of the hackers DOJ has otherwise indicted at times work for the Russian government. So even that is not unprecedented.

The indictment did serve an important messaging function. It laid out the stakes of the larger Russian investigation in ways that should have been nonpartisan (and largely were, until Concord made an appearance in the courts and started trolling the legal system). It asserted that IRA’s efforts to thwart our electoral and campaign finance functions amounted to a fraud against the United States. And it explained how the IRA effort succeeded in getting Americans to unwittingly assist the Russian effort. The latter two issues, however, may be central to the issues that undid the prosecution.

Make no mistake: the IRA indictment pushed new boundaries on FARA in ways that may raise concerns and are probably significant to the decision to drop charges against Concord. It did so at a time when DOJ’s newfound focus on FARA was not yet well-established, meaning DOJ might have done it differently with the benefit of the lessons learned since early 2018. Here’s a shorter and a longer version of an argument from Joshua Fattal on this interpretation of FARA. Though I think he misses something about DOJ’s argument that became clear (or, arguably, changed) last fall, that DOJ is not just arguing that the trolls themselves are unregistered foreign agents, but that they tricked innocent Americans into being agents. And DOJ surely assumed it would likely never prosecute any of those charged, unless one of the human targets foolishly decided to vacation in Prague or Spain or any other country with extradition treaties with the US. So the indictment was a calculated risk, a risk that may not have paid off.

But that’s why it’s worth understanding the decision to drop the prosecution based off the record, rather than presumptions about DOJ and the Russia investigation.

Just the funding side of the conspiracy to defraud indictment got dropped

The first step to understanding why DOJ dropped the charges is to understand what the two Concord entities were charged with. The indictment as a whole charged eight counts:

  • Conspiracy to defraud the United States for preventing DOJ and FEC from policing our campaign finance and election system (and State for issuing visas)
  • Conspiracy to commit wire fraud and bank fraud by using stolen identities to open financial accounts with which to evade PayPal’s security
  • Six counts of aggravated identity theft for stealing the identities of Americans used in the wire and bank fraud

The wire and bank fraud charges remain untouched by DOJ’s decision. If any of those defendants shows up in court, DOJ remains fully prepared to hold them accountable for stealing Americans’ identities to thwart PayPal’s security protocols so as to fool Americans into doing Russia’s work. Such an identity theft prosecution would not rely on the aggressive FARA theory the Concord charge does.

Even still, most of the conspiracy to defraud (ConFraudUS) charge remains.

The two Concord entities were only named in the ConFraudUS charge. The overt acts involving Concord entail funding the entire operation and hiding those payments by laundering them through fourteen different affiliates and calling the payments “software support.”

3. Beginning as early as 2014, Defendant ORGANIZATION began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election. Defendant ORGANIZATION received funding for its operations from Defendant YEVGENIY VIKTOROVICH PRIGOZHIN and companies he controlled, including Defendants CONCORD MANAGEMENT AND CONSULTING LLC and CONCORD CATERING (collectively “CONCORD”). Defendants CONCORD and PRIGOZHIN spent significant funds to further the ORGANIZATION’s operations and to pay the remaining Defendants, along with other uncharged ORGANIZATION employees, salaries and bonuses for their work at the ORGANIZATION.

[snip]

11. Defendants CONCORD MANAGEMENT AND CONSULTING LLC (Конкорд Менеджмент и Консалтинг) and CONCORD CATERING are related Russian entities with various Russian government contracts. CONCORD was the ORGANIZATION’s primary source of funding for its interference operations. CONCORD controlled funding, recommended personnel, and oversaw ORGANIZATION activities through reporting and interaction with ORGANIZATION management.

a. CONCORD funded the ORGANIZATION as part of a larger CONCORD-funded interference operation that it referred to as “Project Lakhta.” Project Lakhta had multiple components, some involving domestic audiences within the Russian Federation and others targeting foreign audiences in various countries, including the United States.

b. By in or around September 2016, the ORGANIZATION’s monthly budget for Project Lakhta submitted to CONCORD exceeded 73 million Russian rubles (over 1,250,000 U.S. dollars), including approximately one million rubles in bonus payments.

c. To conceal its involvement, CONCORD labeled the monies paid to the ORGANIZATION for Project Lakhta as payments related to software support and development. To further conceal the source of funds, CONCORD distributed monies to the ORGANIZATION through approximately fourteen bank accounts held in the names of CONCORD affiliates, including Glavnaya Liniya LLC, Merkuriy LLC, Obshchepit LLC, Potentsial LLC, RSP LLC, ASP LLC, MTTs LLC, Kompleksservis LLC, SPb Kulinariya LLC, Almira LLC, Pishchevik LLC, Galant LLC, Rayteks LLC, and Standart LLC.

Concord was likely included because it tied Prigozhin into the conspiracy, and through him, Vladimir Putin. That tie has been cause for confusion and outright disinformation during the course of the prosecution, as during pretrial motions there were two legal fights over whether DOJ could or needed to say that the Russian state had a role in the operation. Since doing so was never necessary to legally prove the charges, DOJ didn’t fight that issue, which led certain useful idiots to declare, falsely, that DOJ had disclaimed any tie, which is either absurd misunderstanding of how trials work and/or an outright bad faith representation of the abundant public evidence about the ties between Prigozhin and Putin.

By including Concord, the government asserted that it had proof not just that IRA’s use of fake identities had prevented DOJ and the FEC from policing electoral transparency, but also that Putin’s go-to guy in the private sector had used a series of shell companies to fund that effort.

By dropping the charges against the shell companies, that link is partly broken, but the overall ConFraudUS charge (and the charge against Prigozhin) remains, and all but one of the defendants are now biological persons who, if they mounted a defense, would also face criminal penalties that might make prosecution worth it. (I believe the Internet Research Agency has folded as a legal institution, so it would not be able to replay this farce.)

Going to legal war with a shell company

As noted, the indictment included two shell companies — Concord Management and Concord Catering — among the defendants in a period when Russia has increasingly pursued lawfare to try to discredit our judicial system. That’s precisely what happened: Prigozhin hired lawyers who relished trolling the courts to try to make DOJ regret it had charged the case.

As ceded above, DOJ surely didn’t expect that anyone would affirmatively show up to defend against this prosecution. That doesn’t mean they didn’t have the evidence to prove the crimes — both the first level one that bots hid their identities to evade electoral protections, and the second level conspiracy that Prigozhin funded all that through some shell companies. But it likely means DOJ didn’t account for the difficulties of going to legal war against a shell company.

One of the two explanations the government offered for dropping the prosecution admits that the costs of  trying a shell company have come to outweigh any judicial benefits.

When defense counsel first appeared on behalf of Concord, counsel stated that they were “authorized” to appear and “to make representations on behalf” of Concord, and that Concord was fully subjecting itself to the Court’s jurisdiction. 5/9/18 Tr. 5 (ECF No. 9). Though skeptical of Concord’s (but not counsel’s) asserted commitments at the initial appearance, the government has proceeded in good faith—expending the resources of the Department of Justice and other government agencies; incurring the costs of disclosing sensitive non-public information in discovery that has gone to Russia; and, importantly, causing the Court to expend significant resources in resolving dozens of often-complex motions and otherwise ensuring that the litigation has proceeded fairly and efficiently. Throughout, the government’s intent has been to prosecute this matter consistent with the interests of justice. As this case has proceeded, however, it has become increasingly apparent to the government that Concord seeks to selectively enjoy the benefits of the American criminal process without subjecting itself to the concomitant obligations.

From the start, there were ongoing disputes about whether the shell company Concord Management was really showing up to defend against this conspiracy charge. On May 5, 2018, DOJ filed a motion aiming to make sure that — given the uncertainty that Concord had been properly served with a summons, since, “Acceptance of service is ordinarily an indispensable precondition providing assurance that a defendant will submit to the jurisdiction of the court, obey its orders, and comply with any judgment.” Concord’s lawyers responded by complaining that DOJ was stalling on extensive discovery requests Concord made immediately.

Next, an extended and recurrent fight over a protective order for discovery broke out. Prigozhin was personally charged in the indictment along with his shell company. The government tried to prevent defense attorneys from sharing discovery deemed “sensitive” with officers of Concord (Prighozhin formally made himself an officer just before this effort started) who were also defendants without prior approval or at least a requirement such access to take place in the United States, accompanied by a defense attorney lawyer. That fight evolved to include a dispute about whether “sensitive” discovery was limited to just Personally Identifiable Information or included law enforcement sensitive information, too (unsurprisingly, Concord said it only wanted the latter and even demanded that DOJ sift out the former). The two sides established a protective order at start. But in December, after the government had delivered 4 million documents, of which it deemed 3.2 million “sensitive,” Concord renewed their demand that Prighozhin have access to discovery. They trollishly argued that only Prigozhin could determine whether the proper translation of the phrase “Putin’s chef” meant he was the guy who cooked for Putin or actually Putin’s boss. At this point, the US started filing sealed motions opposing the discovery effort, but did not yet resort to the Classified Information Procedures Act, meaning they still seemed to believe they could prove this case with unclassified, albeit sensitive, evidence.

Shortly thereafter, DOJ revealed that nothing had changed to alter the terms of the original protective order, and in the interim, some of the non-sensitive discovery (that is, the stuff that could be shared with Prigozhn) had been altered and used in a disinformation campaign.

The subsequent investigation has revealed that certain non-sensitive discovery materials in the defense’s possession appear to have been altered and disseminated as part of a disinformation campaign aimed (apparently) at discrediting ongoing investigations into Russian interference in the U.S. political system. These facts establish a use of the non-sensitive discovery in this case in a manner inconsistent with the terms of the protective order and demonstrate the risks of permitting sensitive discovery to reside outside the confines of the United States.

With a biological defendant, such a stunt might have gotten the defendant thrown in jail (and arguably, this is one of two moments when Judge Dabney Friedrich should have considered a more forceful response to defiance of her authority). Here, though, the prosecution just chugged along.

Perhaps the best proof that Prigozhin was using Concord’s defense as an intelligence-collecting effort came when, late last year, Concord demanded all the underlying materials behind Treasury’s Office of Foreign Assets Control decision to sanction Prigozhin and his companies. As Friedrich noted in her short notation denying the request, OFAC’s decision to sanction Prigozhin had nothing to do with the criminal charges against Concord. Nevertheless, Prigozhin used the indictment of his shell companies in an attempt to obtain classified information on the decision leading to sanctions being imposed on him.

Prigozhin’s goal of using his defense as a means of learning the US government’s sources and methods was clear from the first discovery request. That — and his unwavering efforts to continue the trolling operations — likely significantly influenced the later classification determination that contributed to DOJ dropping the case.

The government intended to try this case with unclassified information

That’s the other cited reason the government dismissed this case: because a classification determination made some of the evidence collected during the investigation unavailable as unclassified information.

[A]s described in greater detail in the classified addendum to this motion, a classification determination bearing on the evidence the government properly gathered during the investigation, limits the unclassified proof now available to the government at trial. That forces the prosecutors to choose between a materially weaker case and the compromise of classified material.

At the beginning of this case, the government said that all its evidence was unclassified, but that much of it was sensitive, either for law enforcement reasons or the privacy of victims in the case.

As described further in the government’s ex parte affidavit, the discovery in this case contains unclassified but sensitive information that remains relevant to ongoing national security investigations and efforts to protect the integrity of future U.S. elections. At a high level, the sensitive-but-unclassified discovery in this case includes information describing the government’s investigative steps taken to identify foreign parties responsible for interfering in U.S. elections; the techniques used by foreign parties to mask their true identities while conducting operations online; the relationships of charged and uncharged parties to other uncharged foreign entities and governments; the government’s evidence-collection capabilities related to online conduct; and the identities of cooperating individuals and, or companies. Discovery in this case contains sensitive information about investigative techniques and cooperating witnesses that goes well beyond the information that will be disclosed at trial.

Nevertheless, after the very long and serial dispute about how information could be shared with the defendant noted above (especially Prigozhin, as an officer of Concord), later in the process, something either became classified or the government decided they needed to present evidence they hadn’t originally planned on needing.

This is one way, Barr critics suggest, that the Attorney General may have sabotaged the prosecution: by deeming information prosecutors had planned to rely on classified, and therefore making key evidence inaccessible for use at trial.

That’s certainly possible! I don’t rule out any kind of maliciousness on Barr’s part. But I think the available record suggests that the government made a good faith classification decision, possibly in December 2019 or January 2020, that ended up posing new difficulties for proving the case at trial. One possibility is that, in the process of applying a very novel interpretation of FARA to this prosecution, the types of evidence the government needed to rely on may have changed. It’s also possible that Prigozhin’s continued trolling efforts — and maybe even evidence that his trolling operations had integrated lessons learned from discovery to evade detection — made sharing heretofore sensitive unclassified information far more damaging to US national security (raising its classification level).

As discussed below, the record also suggests that the government tried to access some evidence via other means, by subpoenaing it from Concord. But Concord’s ability to defy subpoenas without punishment (which gets back to trying to prosecute a shell company) prevented that approach.

The fight over what criminalizes a troll conspiring to fool DOJ (and FEC)

Over the course of the prosecution, the theory of the ConFraudUS conspiracy either got more detailed (and thereby required more specific kinds of evidence to prove) or changed. That may have contributed to changing evidentiary requirements.

Even as the dispute about whether Concord was really present in the court fighting these charges, Concord’s lawyers challenged the very novel application of FARA by attacking the conspiracy charge against it. This is precisely what you’d expect any good defense attorney to do, and our judicial system guarantees any defendant, even obnoxious Russian trolls who refuse to actually show up in court, a vigorous defense, which is one of the risks of indicting foreign corporate persons.

To be clear: the way Concord challenged the conspiracy charge was often frivolous (particularly in the way that Concord’s Reed Smith lawyers, led by Eric Dubelier, argued it). The government can charge a conspiracy under 18 USC § 371 without proving that the defendant violated the underlying crimes the implementation of which the conspiracy thwarted (as Friedrich agreed in one of the rulings on Concord’s efforts). And on one of the charged overt acts — the conspiracy to hide the real purpose of two reconnaissance trips to the US on visa applications — Concord offered only a half-hearted defense; at trial DOJ would likely have easily proven that when IRA employees came to the US in advance of the operation, they lied about the purpose of their travel to get a visa.

That said, while Concord never succeeded in getting the charges against it dismissed, it forced DOJ to clarify (and possibly even alter) its theory of the crime.

That started as part of a motion to dismiss the indictment based on a variety of claims about the application of FARA to conspiracy, arguing in part that DOJ had to allege that Concord willfully failed to comply with FECA and FARA. The government argued that that’s not how a ConFraudUS charge works — that the defendants don’t have to be shown to be guilty of the underlying crimes. Concord replied by claiming that its poor trolls had no knowledge of the government functions that their secrecy thwarted. Friedrich posed two questions about how this worked.

Should the Court assume for purposes of this motion that neither Concord nor its coconspirators had any legal duty to report expenditures or to register as a foreign agent?

Specifically, should the Court assume for purposes of this motion that neither Concord nor its co-conspirators knowingly or unknowingly violated any provision, civil or criminal, of FECA or FARA by failing to report expenditures or by failing to register as a foreign agent?

The government responded by arguing that whether or not the Russian trolls had a legal duty to register, their deception meant that regulatory agencies were still thwarted.

As the government argued in its opposition and at the motions hearing, the Court need not decide whether the defendants had a legal duty to file reports with the FEC or to register under FARA because “the impairment or obstruction of a governmental function contemplated by section 371’s ban on conspiracies to defraud need not involve the violation of a separate statute.” United States v. Rosengarten, 857 F.2d 76, 78 (2d Cir. 1988); Dkt. No. 56, at 9-13. Moreover, the indictment alleges numerous coordinated, structured, and organized acts of deception in addition to the failure to report under FECA or to register under FARA, including the use of false social media accounts, Dkt. No. 1 ¶¶ 32-34, 36, the creation and use of U.S.- based virtual computer infrastructure to “mask[] the Russian origin and control” of those false online identities, id. ¶¶ 5, 39, and the use of email accounts under false names, id. ¶ 40. The indictment alleges that a purpose of these manifold acts of deception was to frustrate the lawful government functions of the United States. Id. ¶ 9; see also id. ¶ 5 (alleging that U.S.-based computer infrastructure was used “to avoid detection by U.S. regulators and law enforcement”); id. ¶ 58 (alleging later obstructive acts that reflect knowledge of U.S. regulation of conspirators’ conduct). Those allegations are sufficient to support the charge of conspiracy to defraud the United States regardless of whether the defendants agreed to engage in conduct that violated FECA or FARA because the “defraud clause does not depend on allegations of other offenses.”

Friedrich ruled against the trolls, except in doing so stated strongly that the government had conceded that they had to have been acting to impair lawful government functions, though not which specific relevant laws were at issue.

Although the § 371 conspiracy alleged does not require willfulness, the parties’ disagreement may be narrower than it first appears. The government concedes that § 371 requires the specific intent to carry out the unlawful object of the agreement—in this case, the obstruction of lawful government functions. Gov’t’s Opp’n at 16 (“Because Concord is charged with conspiring to defraud the United States, . . . the requisite mental state is the intent of impairing, obstructing, or defeating the lawful function of any department of government through deception.” (internal quotation marks omitted)). Further, the government agrees that to form the intent to impair or obstruct a government function, one must first be aware of that function. See Hr’g Tr. at 40 (“[Y]ou can’t act with an intent to impair a lawful government function if you don’t know about the lawful government function.”). Thus, Concord is correct—and the government does not dispute—that the government “must, at a minimum, show that Concord knew what ‘lawful governmental functions’ it was allegedly impeding or obstructing.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. Here, as alleged in the indictment, the government must show that Concord knew that it was impairing the “lawful functions” of the FEC, DOJ, or DOS “in administering federal requirements for disclosure of foreign involvement in certain domestic activities.” Indictment ¶ 9. But Concord goes too far in asserting that the Special Counsel must also show that Concord knew with specificity “how the relevant laws described those functions.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. A general knowledge that U.S. agencies are tasked with collecting the kinds of information the defendants agreed to withhold and conceal would suffice.

Then Concord shifted its efforts with a demand for a Bill of Particulars. The demand itself — and the government’s opposition — included a demand for information about co-conspirators and VPNs, yet another attempt to get intelligence rather than discovery. But Friedrich granted the motion with respect to the application of FECA and FARA.

In other words, it will be difficult for the government to establish that the defendants intended to use deceptive tactics to conceal their Russian identities and affiliations from the United States if the defendants had no duty to disclose that information to the United States in the first place. For that reason, the specific laws—and underlying conduct—that triggered such a duty are critical for Concord to know well in advance of trial so it can prepare its defense.

The indictment alleges that the defendants agreed to a course of conduct that would violate FECA’s and FARA’s disclosure requirements, see Indictment ¶¶ 7, 25–26, 48, 51, and provides specific examples of the kinds of expenditures and activities that required disclosure, see id. ¶¶ 48– 57. Concord, 347 F. Supp. 3d at 50. But the indictment does not cite the specific statutory and regulatory disclosure requirements that the defendants violated. Nor does it clearly identify which expenditures and activities violated which disclosure requirements. Accordingly, the Court will order the government to:

  • Identify any statutory or regulatory disclosure requirements whose administration the defendants allegedly conspired to impair, along with supporting citations to the U.S. Code, Code of Federal Regulations, or comparable authority.
  • With respect to FECA, identify each category of expenditures that the government intends to establish required disclosure to the FEC. See, e.g., Indictment ¶ 48 (alleging that the defendants or their co-conspirators “produce[d], purchase[d], and post[ed] advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton”) (emphasis added)). The government must also identify for each category of expenditures which disclosure provisions the defendants or their co-conspirators allegedly violated.
  • With respect to FARA, identify each category of activities that the government intends to establish triggered a duty to register as a foreign agent under FARA. See, e.g., id. ¶ 48 (same); id. ¶ 51 (alleging that the defendants or their coconspirators “organized and coordinated political rallies in the United States” (emphasis added)). The government must also identify for each category of activities which disclosure provisions the defendants or their co-conspirators allegedly violated.

In a supplemental motion for a bill of particulars, Concord asked which defendants were obliged to file with DOJ and FEC.

That came to a head last fall. In a September 16, 2019 hearing, both sides and Friedrich discussed at length precisely what the legal theory behind the conspiracy was. On Friedrich’s order, the government provided Concord a list of people (whose names were redacted) that,

the defendants conspired to cause some or all of the following individuals or organizations to act as agents of a foreign principal while concealing from those individuals that they were acting as agents of a foreign principal [who should register under FARA].

That is, whether or not this was the original theory of the case, by last fall the government made it clear that it wasn’t (just) Prigozhin or his trolls who needed to register; rather, it was (also) the Americans who were duped into acting and spending money on their behalf. But because they didn’t know they were working on behalf of a foreign principal, they did not register.

Meanwhile, in a motion for clarification, the government argued that it had always intended to include foreigners spending money in the indictment. Friedrich held that that had not actually been included in the original indictment.

These two issues — the claim that duped Americans would have had to register if they knew they were working with a foreign agent, and the need to strengthen the assertion about foreign campaign expenditures — forced the government to go back and supersede the original indictment.

DOJ obtains a superseding indictment with more specific (and potentially new) theories of the case

On November 8, 2019, the government obtained a superseding indictment to include language about foreign donations that Friedrich had ruled was not in the original indictment and language covering the duped Americans who had unknowingly acted as agents of Russian trolls.

New language in the superseding indictment provided more detail of reporting requirements.

¶1 U.S. law also requires reporting of certain election-related expenditures to the Federal Election Commission.

[snip]

U.S. also imposes an ongoing requirement for such foreign agents to register with the Attorney General.

The paragraph explaining the means of the ConFraudUS added detail about what FEC, DOJ, and State functions the trolls’ deceit had thwarted.

¶7 In order to carry out their activities to interfere in the U.S. political and electoral processes without detection of their Russian affiliation, Defendants conspired to obstruct through fraud and deceit lawful functions of the United States government in monitoring, regulating, and enforcing laws concerning foreign influence on and involvement in U.S. elections and the U.S. political system. These functions include (a) the enforcement of the statutory prohibition on certain election-related expenditures by foreign nationals; (b) the enforcement of the statutory requirements for filing reports in connection with certain election-related expenditures; (c) the enforcement of the statutory ban on acting as an unregistered agent of a foreign principal in the United States; (d) the enforcement of the statutory requirements for registration as an agent of a foreign principal (e) the enforcement of the requirement that foreign national seeking entry into the United States provide truthful and accurate information to the government. The defendants conspired to do so by obtaining visas through false and fraudulent statements, camouflaging their activities by foreign nationals as being conducted by U.S. persons, making unlawful expenditures and failing to report expenditures in connection with the 2016 U.S. presidential election, and failing to register as foreign agents carrying out political activities within the United States, and by causing others to take these actions.

These allegations were repeated in ¶9 in the section laying out the ConFraudUs count.

The superseding indictment added a section describing what FEC and DOJ do.

¶25 One of the lawful functions of the Federal Election Commission is to monitor and enforce this prohibition. FECA also requires that individuals or entities who make certain independent expenditures in federal elections report those expenditures to the Federal Election Commission. Another lawful government function of the Federal Election Commission is to monitor and enforce this reporting requirement.

[snip]

¶26 The U.S. Department of Justice enforces the Foreign Agent Registration Act (“FARA”), which makes it illegal to act in the United States as an “agent of a foreign principal,” as defined at Title 22, United States Code, Section 661(c), without following certain registration, reporting, and disclosure requirements established by the Act. Under FARA, the term “foreign principal” includes foreign non-government individuals and entities. FARA requires, among other things, that persons subject to its requirements submit periodic registration statements containing truthful information about their activities and income earned from them. One of the lawful government functions of the Department of Justice is to monitor and enforce this registration, reporting, and disclosure regime.

In perhaps the most interesting addition, the superseding indictment also added language to include the actions of unwitting Americans.

¶48 …and caused unwitting persons to produce, purchase, and post advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton. Defendants and their co-conspirators did not report these expenditures to the Federal Election Commission, or register as foreign agents with the U.S. Department of Justice, nor did any of the unwitting persons they caused to engage in such activities.

The superseding indictment repeated this “unwitting” language in ¶51.

This superseding indictment is significant for two reasons, given the dismissal of the count against the two Concord defendants. First, the possibly changed theory of the conspiracy may have changed what evidence the government needed to prove the crime. For example, it may be that DOJ has evidence of IRA employees acknowledging, for the period of this indictment, that spending money on these activities was illegal, whether or not they knew they had to report such expenditures. It may be that DOJ has evidence of communications between the trolls and actual Americans they otherwise wouldn’t have had to rely on. It may be that DOJ has evidence about the regulatory knowledge of those same Americans about their own reporting obligations. Some of this evidence might well be classified.

Just as importantly, if Bill Barr wanted to jettison this prosecution, he could have done so last November by refusing to permit the superseding indictment. That likely would have undermined the case just as surely (and might have led Friedrich to dismiss it herself), and would have been far better for Trump’s messaging. Moreover, from that point in time, it would have been clear that trial might introduce evidence of how three Trump campaign officials coordinated (unknowingly) with the Russian trolls, something bound to embarrass Trump even if it posed no legal hazard. If Barr had wanted to undermine the prosecution to benefit Trump, November would have been the optimal time to do that, not February and March.

While it’s not clear whether this superseding indictment changed certain evidentiary challenges or not, three key strands of activity that seem to have resulted in the dismissal started only after the superseding: an effort to authenticate digital evidence on social media activity, an effort to subpoena some of that same evidence, and the CIPA process to try to substitute for classified information.

The government goes to some lengths to try to pre-approve normally routine evidence

The last of those efforts, chronologically, may hint at some of the evidentiary issues that led DOJ to drop the case.

In a motion submitted on February 17, the government sought to admit a great deal of the social media and related forensic data in the case. In many trials, this kind of evidence is stipulated into evidence, but here, Concord had been making it clear it would challenge the evidence at trial. So the government submitted a motion in limine to try to make sure it could get that evidence admitted in advance.

Among the issues raised in the motion was how the government planned to authenticate the IP addresses that tied the IRA trolls to specific Facebook and Twitter accounts and other members of the conspiracy (Prigozhin, Concord, and the interim shell companies) to each other. The government redacted significant sections of the filing describing how it intended to authenticate these ties (see, for example, the redaction on page 8, which by reference must discuss subscriber information and IP addresses, and footnote 7 on page 9, the redaction pertaining to how they were going to authenticate emails on page 16, the very long redaction on how they would authenticate emails between IRA and Concord starting on page 17, and the very long redaction on how they were going to authenticate Prigozhin to the IRA starting on page 21).

Concord got special permission to write an overly long 56-page response. Some of it makes it clear they’re undermining the government’s efforts to assert just that, for example on IP addresses.

IP addresses, subscriber information, and cookie data are not self-authenticating. The first link in the government’s authentication argument is that IP addresses,6 subscriber information, and cookie data are self-authenticating business records under Rules 803(6) and 902(11). But the cases the government cites are easily distinguishable and undercut its argument.

6 The IP addresses do not link an account to a specific location or fixed address. For example, for the Russian IP addresses the government indicates that they were somewhere within the city of St. Petersburg, Russia.

[snip]

It should come as no surprise then, given the lack of reliability and untrustworthiness in social media evidence such as that the government seeks to introduce, that the case law forecloses the government’s facile effort at authentication of content here. Unlike Browne, Lewisbey, and the other cases cited above, the government has offered no social media accounts bearing the name of any alleged conspirator and no pictures appearing to be a conspirator adorning such page.7 Nor has the government pointed to a single witness who can testify that she saw a conspirator sign up for the various social media accounts or send an email, or who can describe patterns of consistency across the various digital communications to indicate they come from the same source.

7 The government has indicated to Concord that it intends to introduce at trial Fed. R. Evid. 1006 summaries of IP address records, apparently to create the link between the social media accounts and IRA that is not addressed in the motion. See Ex. B, Jan. 6, 2020 letter. Despite repeated requests from undersigned counsel, the government has identified the 40 social media accounts for it intends to summarize but has not provided the summaries or indicated when it will do so.

Some of this is obviously bullshit, particularly given the government’s contention, elsewhere, that Concord (or IRA, if it was a typo) had dedicated IP addresses. Mostly, though, it appears to have been an attempt to put sand in the wheels of normal criminal prosecution by challenging stuff that is normally routine. That doesn’t mean it’s improper, from a defense standpoint. But given how often DOJ’s nation-state indictments rely on such forensic evidence, it’s a warning about potential pitfalls to them.

The government resorts to CIPA

Even while the government had originally set out to prove this case using only unclassified information, late in the process, it decided it needed to use the Classified Information Procedures Act. That process is where one would look for any evidence that Barr sabotaged the prosecution by classifying necessary evidence (though normally the approval for CIPA could come from Assistant Attorney General for National Security Division John Demers, who is not the hack that Barr is).

In October 2019, Friedrich had imposed a deadline for CIPA if the government were going to use it, of January 20, 2020.

On December 17, the government asked for a two week delay, “to ensure appropriate coordination within the Executive Branch that must occur prior to the filing of the motion,” a request Friedrich denied (even though Concord did not oppose it). This was likely when the classification determination referenced in the motion to withdraw was debated, given that such determinations would dictate what prosecutors had to do via CIPA.

On January 10, 2020, the government filed its first motion under CIPA Section 4, asking to substitute classified information for discovery and use at trial. According to the docket, Friedrich discussed CIPA issues at a hearing on January 24. Then on January 29 and February 10, she posted classified orders to the court security officer, presumably as part of the CIPA discussion.

On February 13, the government asked for and obtained a one-day extension to file a follow-up CIPA filing, from February 17 to February 18, “to complete necessary consultation within the Executive Branch regarding the filing and to ensure proper supervisory review.” If Barr intervened on classification issues, that’s almost certainly when he did, because this happened days after Barr intervened on February 11 in Roger Stone’s sentencing and after Jonathan Kravis, who had been one of the lead prosecutors in this case as well, quit in protest over Barr’s Stone intervention. At the very least, in the wake of that fiasco, Timothy Shea made damn sure he ran his decision by Barr. But the phrase, “consultation within the Executive Branch,” certainly entertains consultation with whatever agency owned the classified information prosecutors were deciding whether they could declassify (and parallels the language used in the earlier request for a filing extension). And Adam Jed, who had been part of the Mueller team, was added to the team not long before this and remained on it through the dismissal, suggesting nothing akin to what happened with Stone happened here.

The government submitted its CIPA filing on the new deadline of February 18, Friedrich issued an order the next day, the government filed another CIPA filing on February 20, Friedrich issued another order on February 28.

Under CIPA, if a judge rules that evidence cannot be substituted, the government can either choose not to use that evidence in trial or drop the prosecution. It’s likely that Friedrich ruled that, if the government wanted to use the evidence in question, they had to disclose it to Concord, including Prigozhin, and at trial. In other words, that decision — and the two earlier consultations (from December to early January, and then again in mid-February) within the Executive Branch — are likely where classification issues helped sink the prosecution.

It’s certainly possible Bill Barr had a key role in that. But there’s no explicit evidence of it. And there’s abundant reason to believe that Prigozhin’s extensive efforts to use the prosecution as an intelligence-gathering exercise both for ongoing disinformation efforts and to optimize ongoing trolling efforts was a more important consideration. Barr may be an asshole, but there’s no evidence in the public record to think that in this case, Prigozhin wasn’t the key asshole behind a decision.

DOJ attempts to treat Concord as a legit party to the court’s authority

Even before that CIPA process started playing out, beginning on December 3, the government pursued an ultimately unsuccessful effort to subpoena Concord. This may have been an attempt to obtain via other means evidence that either had been obtained using means that DOJ had since decided to classify or the routine authentication of which Concord planned to challenge.

DOJ asked to subpoena a number of things that would provide details of how Concord and Prigozhin personally interacted with the trolls. Among other requests, the government asked to subpoena Concord for the IP addresses it used during the period of the indictment (precisely the kind of evidence that Concord would later challenge).

3. Documents sufficient to identify any Internet Protocol address used by Concord Management and Consulting LLC from January 1, 2014 to February 1, 2018.

Concord responded with a load of absolute bullshit about why, under Russian law, Concord could not comply with a subpoena. Judge Friedrich granted the some of the government’s request (including for IP addresses), but directed the government to more narrowly tailor its other subpoena requests.

On December 20, the government renewed its request for other materials, providing some evidence of why it was sure Concord had responsive materials. Concord quickly objected again, again wailing mightily. In its reply, the government reminded Friedrich that she had the ability to order Concord to comply with the subpoena — and indeed, had gotten Concord’s assurances it would comply with orders of the court when it first decided to defend against the charges. It even included a declaration from an expert on Russian law, Paul Stephan, debunking many of the claims Concord had made about Russian law. Concord wailed, again. On January 24, Friedrich approved the 3 categories of the subpoena she had already approved. On January 29, the government tried again, narrowing the request even to — in one example — specific days.

Calendar entries reflecting meetings between Prigozhin and “Misha Lakhta” on or about January 27, 2016, February 1, 2016, February 2, 2016, February 14, 2016, February 23, 2016, February 29, 2016, May 22, 2016, May 23, 2016, May 28, 2016, May 29, 2016, June 7, 2016, June 27, 2016, July 1, 2016, September 22, 2016, October 5, 2016, October 23, 2016, October 30, 2016, November 6, 2016, November 13, 2016, November 26, 2016, December 3, 2016, December 5, 2016, December 29, 2016, January 19, 2017, and February 1, 2017.

Vast swaths of the motion (and five exhibits) explaining why the government was sure that Concord had the requested records are sealed. Concord responded, wailing less, but providing a helpful geography lesson to offer some alternative explanation for the moniker “Lakhta,” which the government has long claimed was the global term for Prigozhin’s information war against the US and other countries.

But the government fails to inform the Court that “Lakhta” actually means a multitude of other things, including: Lake Lakhta, a lake in the St. Petersburg area, and Lakhta Center, the tallest building in Europe, which is located in an area within St. Petersburg called the Lakhta-Olgino Municipal Okrug.

On February 7, Friedrich largely granted the government’s subpoena request, approving subpoenas to get communications involving Prigozhin and alleged co-conspirators, as well as records of payments and emails discussing them.  That same day and again on February 21, Concord claimed that it had communicated with the government with regards to the subpoenas, but what would soon be clear was non-responsive.

On February 27, the government moved to show cause for why Concord should not be held in contempt for blowing off the subpoenas, including the request for IP addresses and the entirety of the second subpoena (for meetings involving Prigozhin and records of payments to IRA). Concord wailed in response. The government responded by summarizing Concord’s response:

Concord’s 18-page pleading can be distilled to three material points: Concord’s attorneys will not make any representations about compliance; Concord will not otherwise make any representations about compliance; and Concord will not comply with a court order to send a representative to answer for its production. The Court should therefore enter a contempt order and impose an appropriate sanction to compel compliance.

Friedrich issued an order that subpoena really does mean subpoena, demanding some kind of representation from Concord explaining its compliance.  In response, Prigozhin sent a declaration partly stating that his businesses had deleted all available records, partly disclaiming an ability to comply because he had played games with corporate structure.

With respect to category one in the February 10, 2020 trial subpoena, Concord never had any calendar entries for me during the period before I became General Director, and I became General Director after February 1, 2018, so no searches were able to be performed in Concord’s documents. Concord did not and does not have access to the previous General Director’s telephone from which the prosecution claims to have obtained photographs of calendars and other documents, so Concord is unable to confirm the origin of such photographs.

He claimed to be unable to comply with the request for IP addresses because his contractors “cannot” provide them.

In order to comply with category three in the trial subpoena dated January 24, 2020, in Concord’s records I found contracts between Concord and Severen-Telecom JSC and Unitel LLC, the two internet service providers with which Concord contracted between January 1, 2014 and February 1, 2018. Because these contracts do not identify the internet protocol (“IP”) addresses used by Concord during that period, on January 7, 2020 I sent letters on behalf of Concord to Severen-Telecom JSC and Unitel LLC transmitting copies of these contracts and requesting that the companies advise as to which IP addresses were provided to or used by Concord during that period. Copies of these letters and English translations, as well as the attached contracts, are attached as Exhibits 2 and 3. Severen-Telecom JSC responded in writing that the requested information cannot be provided. A copy of Severen-Telecom JSC’s letter and an English translation are attached as Exhibit 2. Unitel LLC responded that information regarding IP addresses cannot be provided. A copy of Unitel LLC’s letter and an English translation of is attached as Exhibit 3. Accordingly, Concord does not have any documents that could be provided in response to category three (3) of the January 24, 2020 subpoena.

The government responded by pointing out how bogus Prigozhin’s declaration was, not least his insistence that any oligarch like him would really be the person in charge of his companies’ record-keeping. It also described evidence — which is redacted — that Concord had an in-house IT provider at the time (though notes that “as the Court knows, it appears that Concord [sic; this is probably IRA] registered and maintained multiple dedicated IP addresses during the relevant time period”). It further noted that the date that Prigozhin claimed his company started destroying records after 3 months perfectly coincided to cover the start date of this subpoena. In short, it provided fairly compelling evidence that Prigozhin, after agreeing that his company would be subject to the authority of the court when it first filed an appearance in the case, was trolling the court from the safety of Russia.

On March 5, Judge Friedrich nevertheless allowed that bullshit response in her court and declined to hold Concord in contempt. Eleven days later, the government moved to dismiss the case.

The government files the motion to dismiss before the evidentiary dispute finishes but after the subpoena and CIPA fail

On March 16 — 17 days after what appears to be the final CIPA order and 11 days after Friedrich declined to hold Concord or Prigozhin in contempt, and one day before the government was due to file a follow-up to its motion in limine to authenticate normally routine evidence in the case — the government moved to dismiss the case.

While it’s unclear what evidence was deemed to be classified late in the prosecution (likely in December), it seems fairly clear that it affected (and possibly was a source or method used to collect) key forensic proof in the case. It’s also unclear whether an honest response to the government’s trial subpoenas would have replaced that evidence.

What is clear, however, is that there is sufficient explanation in the public record to support the government’s explanation — that Prigozhin was using the prosecution to reap benefits of obtaining information about US government efforts to thwart his activities without risking anything himself. And whether or not the government would be able to prove its case with the classification and CIPA decisions reflected in the docket, the trial itself would shift more evidence into the category of information that would get shared with Prigozhin.

None of that disproves that Barr sabotaged the case. But it does provide sufficient evidence to explain why DOJ dismissed the case, without assuming that Barr sabotaged it.

Other cases of interest

As noted above, not only do the identity theft related charges remain, but so does the ConFraudUS case for all the biological defendants, including Prigozhin. It may be that, given the opportunity to imprison Prigozhin in the highly unlikely event that he ever showed up in the US for trial, the classification trade-offs would be very different.

But there are three other legal issues of interest, given this outcome.

First, there’s one more unsurprising detail about the superseding indictment: It also included an end-date, January 2018. That’s not surprising because adding later activities probably would presented all sorts of problems given how advanced the trial was last November. But it’s also significant because it means double jeopardy would not attach for later activities. So the government could, if the calculus on classification ever changed, simply charge all the things Prigozhin and his trolls have been doing since January 2018 in an indictment charged under its revised theory.

That’s particularly significant given that, in September 2018, prosecutors in EDVA charged Prigozhin’s accountant, Elena Alekseevna Khusyaynova. Even at the time, I imagined it might be a vehicle to move the IRA prosecution if anything happened to it in DC. Unsurprisingly, given that she’s the accountant at the center of all this, the Khusyaynova complaint focused more closely on the money laundering part of the prosecution. Plus, that complaint incorporated evidence of Prigozhin’s trolls reveling in their own indictment, providing easy proof of knowledge of the legal claims DOJ made that didn’t exist for the earlier indictment. None of that would change the calculus around classified evidence (indeed, some of the overt acts described in the Khusyaynova complaint seem like the kind of evidence that Prigozhin would have turned over had he complied with the Concord subpoena. So there is another vehicle for such a prosecution, if DOJ wanted to pursue it.

Finally, Prigozhin has not succeeded with all his attempts to wage lawfare in support of his disinformation efforts. In January, he lost his bid to force Facebook to reinstate his fake news site, Federal Agency of News, based off an argument that because Facebook worked so closely with the government, it cannot exercise its own discretion on its private site. As I laid out here, the suit intersected with both the IRA indictment and Khusyaynova complaint, and engaged in similar kinds of corporate laundry and trollish bullshit. The decision was a no-brainer decision based on Section 230 grounds, giving providers immunity when they boot entities from their services. But the decision also confirms what is already evident: when it comes to shell companies in the business of trolling, thus far whack-a-mole removals have worked more consistently than seemingly symbolic prosecution.

DOJ may well revisit how it charged this to try to attach a FARA liability onto online disinformation. But ultimately the biological humans, not the corporation shells or the bots, need to be targeted.

Bill Barr’s Chosen US Attorney Signs Off on Aggressive Response to Mike Flynn

When Bill Barr suddenly replaced DC US Attorney Jessie Liu the day after the Senate acquitted Trump, I grew wary of why he replaced a solid Trump appointee with his own close aide, Timothy Shea.

I fully expect the move was designed to minimize the damage of ongoing investigations into Trump’s flunkies and may well be an effort to prosecute more of Trump’s perceived enemies, like Andrew McCabe.

But in one of the first signals of whether Shea will interfere in sensitive prosecutions, the ongoing sentencing of Mike Flynn, Shea signed off on an aggressive next step.

That’s one of the key takeaways from two filings submitted today, the first asking for an order finding that Flynn has waived all attorney-client privilege with respect to Covington & Burling’s representation of him (including with those who worked on Flynn’s behalf, which might include researchers and tech contractors) in regards to his motion to withdraw his guilty plea, and the second asking for a continuance — possibly a significant one — to work with Covington to obtain information and materials to respond to Mike Flynn’s claims that Covington provided incompetent advice to him.

Bill Barr’s close associate Shea signed off on this, but Brandon Van Grack did not, which likely means that the government is preparing for the possibility (invited by Judge Emmet Sullivan’s suggestion he wants to hold an evidentiary hearing with sworn witnesses) that Van Grack will testify about discussions with Flynn and his lawyers, too.

That is, we may be headed towards a hearing in which we see top Covington lawyers, their contractors (I suspect their tech contractors have an interesting story to tell about how Flynn Intelligence Group materials were made unavailable after the 2016 election, thereby making key documents unavailable for Covington to review before completing the FARA filing), the other lawyer they advised he consult after first making sure he did not have a conflict, and Van Grack testify about how much lying and obstruction Flynn engaged in, with just Flynn and his wife (having probably already waived spousal privilege by submitting a declaration in this matter) arguing to the contrary.

Another takeaway is that Covington wants this opportunity to tell what a shitty client Flynn was.

While Covington has indicated a willingness to comply with this request, it has understandably declined to do so in the absence of a Court order confirming the waiver of attorney-client privilege.

They just want the legal and ethical cover of an order from Judge Sullivan. The government is asking for over a week extension from the existing deadline — currently noon on this Wednesday, February 12 — before they propose to submit a status report at noon on Thursday, February 20. That suggests they imagine, having consulted with Covington, that there may be a good deal to talk about, with regards to what a shitty client Mike Flynn was.

A subtle point about this request: I believe that the government is asking for this, and justifying it, based off Flynn’s complaint not just that his Covington lawyers should have gotten the details about FARA correct, and having not done so had an unwaivable conflict in representing Flynn going forward, but also that they allegedly did not tell Flynn that the FBI agents who originally interviewed him believed that he had a “sure demeanor,” which would have led him not to plead guilty had he been told.

the defendant contends that (1) his attorneys did not disclose to him that the interviewing agents believed he had a “sure demeanor” and that he did not show signs of deception, and he would not have pleaded guilty if his attorneys had disclosed this to him

This is significant because in the Bijan Kian case, Judge Anthony Trenga ruled that Covington’s work on the FARA application was not covered by privilege.

Notwithstanding the near absolute immunity enjoyed by attorney opinion work product, where that work product relates centrally to the actions or conduct of a lawyer at issue in a case, such that consideration of the attorney’s opinion work product, including their recollections and impressions, are essential to a just and fair resolution, opinion work product protections otherwise applicable do not apply. See, e.g., In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981) (finding no opinion work product protection where attorney’s prior representation was a target of the grand jury investigation); Sec. Exch. Comm’n v. Nat’l Student Mktg. Corp., 1974 WL 415, *3–4 (D.D.C. June 25, 1974) (finding no opinion work product protection where at issue was what a law firm did and did not know). Here, while there is no contention that Covington or Verderame committed any crime, what they did and why is central to this case as their actions are claimed to have resulted in a crime attributable to Rafiekian. For these reasons, any opinion work product by Covington or Verderame that pertains to the FARA filing is not protected.

I believe that means that the already substantial evidence submitted in the context of that case, including notes and testimony clearly showing that Flynn lied to Covington lawyers as they were preparing the FARA filing, can be entered into this proceeding.

What the government is asking for, then, is that Covington’s attorney-client obligations to Flynn be waived on the case in chief here, his lies about Russia. Indeed, that’s what the bulk of the conflicting sworn Flynn statements laid out in the government filing pertain to.

On December 1, 2017, the defendant entered a plea of guilty to “willfully and knowingly” making material false statements to the FBI on January 24, 2017, regarding his contacts with the Russian Ambassador. See Information; SOF at ¶¶ 3-4.1 In addition, in the Statement of the Offense, the defendant admitted that he “made material false statements and omissions” in multiple documents that he filed on March 7, 2017, with the Department of Justice pursuant to FARA, which pertained to a project for the principal benefit of the Republic of Turkey. See SOF at ¶ 5.

On November 30, 2017, defendant Flynn signed the Statement of the Offense, acknowledging: “I have read every word of this Statement of the Offense, or have had it read to me . . . . I agree and stipulate to this Statement of the Offense, and declare under penalty of perjury that it is true and correct.” See SOF at 6. During his initial plea hearing, defendant Flynn was shown this signature, and he acknowledged under oath that it was his. See Plea Tr. at 13-14, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (“12/01/2017 Plea Tr.”). Thereafter, the government read the Statement of the Offense into the record. See id. at 14-18. The defendant was asked by the Court, “Is that factual summary true and correct?,” and the defendant replied, “It is.” Id. at 18. The Court then asked whether the defendant believed the government could prove those facts at trial, to which the defendant replied “yes.” Id. at 19. Defendant Flynn was also asked at this hearing whether he had sufficient time to consult with his attorneys, to which he replied “yes,” and whether he was satisfied with the services they had provided him, to which he also responded “yes.” Id. at 6.

Defendant Flynn was originally scheduled to be sentenced on December 18, 2018. Prior to that hearing, the government submitted a sentencing memorandum that described defendant Flynn’s knowing and willful material false statements to the FBI, and his material false statements and omissions in multiple FARA filings. See Gov’t Sent’g Memo at 2-5. In his own filing, the defendant reiterated that he “d[id] not take issue” with the government’s description of his conduct. See Def. Sent’g Mem at 7 (citing Gov’t Sent’g Memo at 2-5).

As I noted, Flynn’s sworn statements in this preceding are in unreconcilable conflict, both as regards to FARA and as regards to his claim to have lied to the FBI about his conversations with Sergei Kislyak and his more recent claim that he did not lie. But by getting Covington a waiver to talk about the latter, the government intends to get abundant evidence to prove that’s true of both sets unreconcilable conflicting sworn statements, the ones about his work for Turkey and the ones about lying to the FBI about Russia.

And they make it clear they may charge Flynn with perjury once they do that, because they want Sullivan to approve that use in his order.

The order also should make clear that if the defendant’s Supplemental Motion to Withdraw his Plea of Guilty is granted, the Court may consider additional questions of the limitation on the use of this information in any subsequent trial. This limitation on the use of information should not, however, preclude the government from prosecuting the defendant for perjury if any information that he provided to counsel were proof of perjury in this proceeding.

If Sullivan approves this (and he seems to be thinking along the same lines), it means either Flynn’s motion to withdraw will be refused after Covington provides the court with additional evidence of perjury, or it will be approved after Covington provides the government with additional evidence of perjury, which the government — including the newly appointed US Attorney for DC — would then use to prosecute Flynn for perjury.

Flynn’s lawyers — who, remember, decided to risk their client’s freedom on a claim that Covington lawyers were incompetent — seem uninterested in letting the government prepare for a hearing the judge in this case has made fairly clear he intends to hold.

The government conferred by e-mail with counsel for the defendant. In response to the government’s request to amend the briefing schedule in this case, defense counsel wrote: “Our position is that at the minimum, the Department of Justice should agree to withdrawal of the plea. Accordingly, we oppose any further extension of the briefing schedule.”

But even if Sullivan denies this motion, even if Sullivan doesn’t sign the order giving Covington the cover to explain how much Flynn lied to them, the government still has adequate time to prove their case by the existing deadline on Wednesday.

It was clear going back to the early January submission of the sentencing memorandum that Flynn’s case is being very carefully reviewed by the DOJ hierarchy. That’s unlikely to have changed with the changeover in US Attorney. Which suggests that whatever else Barr’s appointment of Timothy Shea means, it likely also means that DOJ institutionally supports this aggressive response to Flynn’s gamesmanship on his guilty plea.

Update: I’m increasingly baffled by all of this, but I think this may be Sidney Powell blinking. She agrees to the continuance claiming (without explaining that she has consulted with the government) that the basis for the government’s request has changed since they emailed and asked whether they were cool with a week-long delay.

Both the relief requested and the reasons underlying the government’s Motion to Amend have changed since it conferred with the defense earlier last week. Given the government’s Motion to Confirm Waiver, which raises issues the government did not mention previously, Michael T. Flynn (“Mr. Flynn”) does not oppose the Court granting a stay of the briefing schedule with a status report due from the parties by February 20, 2020. However, it is imperative that Mr. Flynn have time to brief the issues raised by the government’s new motion regarding the attorney-client privilege.

This could be because someone got through to Flynn and explained he was facing prison on this charge and perjury charges and implored him to withdraw his request to withdraw his plea. It could be because Shea — or Barr — has decided to weigh in. It could be that, given the government’s softer request for a guidelines sentence, Flynn has cut his losses.

All this time, Sullivan has been unusually quiet.

Update: Maybe I’m missing Flynn’s response. On second thought, I think they’re claiming (who knows if it’s true) that last week the government asked for an extension for one reason, and now they’re asking for another. Which would make the inclusion of Shea on this all the more interesting, if it is true, which it’s probably not.

Mike Flynn Seizes the Rope to Hang Himself With: Pick Your Perjury

As I noted Wednesday, Mike Flynn’s legal team and the government submitted a bunch of filings.

In this post, I suggested (controversially) that prosecutors may have had a different purpose for raising probation in their reply to Flynn’s sentencing memo, to remind Judge Emmet Sullivan how pissed he gets when powerful people demand special treatment that the little people go to prison for. In this post, I suggested that Flynn’s motion to dismiss would be better suited if Sidney Powell were representing Carter Page, not Flynn.

In this post, I’ll cover the meat of the issue, Flynn’s attempt to withdraw his guilty plea, made twice, under oath.

Before I get into that meat, though, note that with a sworn declaration Flynn submitted with this filing, he has given four sworn statements in this matter:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview.
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview.
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.”

Understand that from the moment Judge Emmet Sullivan picks up this motion to withdraw his plea, Sullivan will be faced with Flynn claiming he lied, at least once, under oath. Take your pick which one of these statements under oath Flynn now claims to be a lie, but at least one of them necessarily is. And Sullivan has made it clear he plans to put Flynn back under oath to resolve all this.

That’s the hole that Sidney Powell has crafted for her client to dig his way out of, a sworn statement that conflicts with two earlier ones, and sworn testimony that conflicts with her primary basis for withdrawing this plea.

Almost no mention of his lies about Russia

From there, she provides her client little help from the primary task before him: explaining why he is withdrawing his guilty plea that primarily relates to his January 24, 2017 FBI interview. In the first paragraph of her motion, she asserts that Mike Flynn does maintain he did not lie on January 24, 2017, meaning he lied under oath before both Contreras and Sullivan when he said he did.

Michael T. Flynn (“Mr. Flynn”) does maintain that he is innocent of the 18 U.S.C. §1001 charges; and he did not lie to the FBI agents who interviewed him in the White House on January 24, 2017.

She offers several different explanations for why her client apparently perjured himself twice before judges. The most sustained one — one Flynn fans have made persistently — is that he now thinks the agents didn’t actually believe he lied because they “saw no indications of deception” from Flynn, meaning that he didn’t act like he was lying. Bizarrely, one of the things Flynn includes in his sworn declaration is that he has a history of not being candid about sensitive and classified subjects with anyone who is not his superior (though I would imagine that his former superior James Clapper would argue even this is not true).

My baseline reaction to questions posed by people outside of my superiors, immediate command, or office of responsibility is to protect sensitive or classified information, except upon “need to know” and the proper level of security clearance. That type of filter is ingrained in me and virtually automatic after a lifetime of honoring my duty to protect the most important national and military secrets.

In short, Flynn claims under oath that he has a habit of not telling the truth about classified or sensitive matters. He doesn’t quite say that’s what happened here, but since he has stated under oath he knew that it was a crime to lie to the FBI and he knew the people interviewing him would have had access to transcripts of his calls with Sergei Kislyak, has has provided evidence, under oath, that he knew these FBI agents were people he had to tell the truth to and were included among those with the “need to know” about what he said to Kislyak. But the explanation that he has a virtually automatic filter that leads him not to tell the truth about sensitive information does explain why agents might observe that he had a sure demeanor even while knowing he lied: Flynn has had a lot of practice lying.

Now, this by itself surely can’t get him out of his conflicting sworn statements that he didn’t lie but he did.

So Flynn blames his former lawyers.

As part of a broader strategy to claim that Flynn’s Covington team was incompetent, Sidney Powell claims (relying on Flynn’s declaration) that when the government made it clear to his lawyers they knew he had been lying, Flynn asked his lawyers “to make further inquiry with the SCO prosecutors about whether the FBI agents believed I had lied to them” (Flynn’s declaration is internally contradictory on this point, because he claims he heard rumors they didn’t believe this by November 30 but then, seven paragraphs later, he claims he never heard those rumors before he pled guilty on December 1). His attorney inquired and came back with the truthful response that the “agents stand by their statements.” Flynn claims that his attorneys did not tell him what he claims to be a critical detail, that the agents thought he sounded like he was telling the truth even though abundant other evidence (including Peter Strzok’s texts to Lisa Page, written before any draft 302s) make it clear they knew he was lying.

The information that counsel withheld concerned prior statements that the two FBI agents who interviewed Mr. Flynn in the White House had made about his “sure demeanor,” the lack of “indicators of deception,” and similar observations. Exs. Michael Flynn Declaration;Lori Flynn Declaration.

In an earlier round of briefing in this case, the government represented that it had communicated this information to the defendant on the day that the plea agreement was signed, November 30, 2017 [Gov’t’s Opp’n, ECF No. 122 at 16]. In its December 16, 2019 Opinion, moreover, this Court accepted and relied on that representation [Memorandum Opinion, ECF No. 144 at 32].As the Flynn Declarations demonstrate, however, that representation was mistaken: the government almost certainly made a disclosure to the defendant’s counsel on that day, but Covington did not then communicate the information to the defendant himself. Of course, in the vast majority of cases, communication to counsel is communication to the client, but it was not that day.

Flynn now claims it would have changed his mind to plead guilty if he learned that the FBI agents thought he was a pretty convincing liar, but his lawyers incompetently didn’t share that detail with him.

But wait.

There’s more.

Powell also suggests that the way the FBI investigated Flynn — first by monitoring how he responded to Trump’s first national security briefing (the one Flynn attended while secretly signing up to work for the Turkish government) and then by interviewing him in the White House — is proof they weren’t really investigating him.

Meanwhile, on January 24, 2017, as we have briefed elsewhere, FBI Director Comey and Deputy Director McCabe dispatched Agents Strzok and “SSA 1” to the White House— deliberately contrary to DOJ and FBI policy and protocols—without notifying DOJ.9

9 This was actually the FBI’s second surreptitious interview of Mr. Flynn—without informing him even so much as that he was the subject of their investigation. SSA 1 had “interviewed him” in a “sample Presidential Daily Briefing” (“PDB”) on August 17, 2016—unbeknownst to anyone outside the FBI or DOJ until revealed in the recent Inspector General Report of December 9, 2019.

This also goes to Mr. Flynn’s claim of actual innocence. Against the baseline interview the FBI surreptitiously obtained under the guise of the PDB (in August 2016), the agents conducted the White House interview and immediately reported back in three extensive briefings during which both agents assured the leadership of the DOJ and FBI they “saw no indications of deception,” and they believed so strongly that Mr. Flynn was shooting straight with them that Strzok pushed back against Lisa Page’s disbelief and Deputy Director McCabe’s cries of “bullshit.” ECF No. 133-2 at 4. This development is addressed in Flynn’s Motion to Dismiss for Egregious Government Misconduct filed contemporaneously herewith.

[snip]

The electronic communication written by SSA 1 arising from the presidential briefing was approved by Strzok. It was uploaded into Sentinel August 30, 2016. IG Report at 343 and n. 479. In truth, but unknown to Mr. Flynn until the release of this Report, SSA1 was actually there because he was investigating the candidate’s national security advisor as being “an agent of Russia.” This report of that interaction including purported statements by Mr. Flynn was put it in a sub-file of the Crossfire Hurricane file. That, and the DOJ document completely exonerating Mr. Flynn of that slanderous assertion, has never been produced to Mr. Flynn. This was extraordinary Brady and Giglio information that should have been provided to Mr. Flynn by Mr. Van Grack no later than upon entry of this Court’s Brady order

[snip]

With every disclosure and IG Report of the last eighteen months, it has become increasingly clear the FBI was not trying to learn facts from Mr. Flynn on January 24, 2017. Rather, the Agents were executing a well-planned, high-level trap that began at least as far back as August 15, 2016, when Strzok and Page texted about the “insurance policy” they discussed in McCabe’s office, opened the “investigation” on Mr. Flynn the next day, and inserted SSA 1 surreptitiously into the “sample PDB” the next day to investigate and assess Mr. Flynn.

Even if these assertions were true, none of it rebuts that Flynn told lies in that interview.

Which is probably why Powell goes on to argue that the answers that Flynn claims weren’t lies weren’t material to the FBI investigation, based in part on Judge Sullivan’s comments from the December 2018 sentencing hearing that probably were more indication that he wanted prosecutors to lay out how bad Flynn’s lies were.

Finally, the Court was not satisfied with the factual basis for the plea. It said it had “many, many, many questions.” Hr’g Tr. Dec. 18, 2018 at 20. The Court, sensing the materiality issues in the case, specifically left those questions open for another day. Id. at 50. 40

40 The element of materiality boils down to whether a misstatement “has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.” United States v. Gaudin, 515 U.S. 506, 522-23 (1995). In applying this rule, courts analyze the statement that was made and the decision that the agency was considering. Universal Health Services, Inc. v. U.S. ex rel. Escobar, 136 S. Ct. 1989, 2002-03 (2016). For a misstatement to be material, the agency must show that it would have made a different decision had the defendant told the truth.

The government alleges misstatements that were not material because the FBI agents did not come to the White House for a legitimate investigative purpose; they did not come to investigate an alleged crime. Instead, they came to get leverage over Mr. Flynn at a time when they felt the new administration was still disorganized. So they ignored policies and procedures. They went around the Department of Justice and the White House Counsel’s office, and they walked into the National Security Advisor’s office under false pretenses. They decided not to confront Mr. Flynn with any alleged misstatement not for a legitimate law enforcement purpose, but rather because they did not know if the effort to purge him from his office would be successful. If it was not, they wanted to maintain a collegial working relationship with him. If Mr. Flynn had answered the questions the way in which they imagine he should, nothing at all would have changed in the actions the FBI would have taken.

Powell, of course, presents no evidence for these wild claims. Moreover, she ignores the evidence of materiality that prosecutors submitted in their own sentencing memo.

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.

She ignores, too, that prosecutors put her on notice that they’re going to show that Flynn continued to lack candor in his first meetings with Mueller’s team, a team that did not include either of the FBI agents she says had it in for her client.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

Flynn’s declaration actually accords with this. He describes how, after his first interview with Mueller’s prosecutors, “my attorneys told me that the first day’s proffer did not go well.” It wasn’t until several more meetings before Mueller’s team gave Flynn’s attorneys his first 302, which made it clear how dramatically he had lied.

All of which is to say that Powell’s most robust support for Flynn’s claim that he didn’t lie is that FBI agents believed he had lied well, which probably isn’t going to convince Sullivan to let him withdraw his sworn plea that he did in fact lie.

Cursory consideration of Cray

That makes it all the more problematic that Powell barely addresses what Judge Sullivan told both sides to: a hearing with sworn witnesses and to address US v Cray. True, she does say that if the government doesn’t agree with this motion Sullivan should maybe hold a hearing.

No hard and fast rule governs whether an evidentiary hearing is required before a court can properly adjudicate ineffective assistance of counsel claims, including those undergirding a motion to withdraw a guilty plea. Much depends on exactly what is being contested and what materials the court will have to consider in deciding the merits. In Taylor, 139 F.3d at 932-33, this Circuit wrote:

Ordinarily, when a defendant seeks to withdraw a guilty plea on the basis of ineffective assistance of trial counsel the district court should hold an evidentiary hearing to determine the merits of the defendant’s claims. . . . On the other hand, some claims of ineffective assistance of counsel can be resolved on the basis of the trial transcripts and pleadings alone.3

But she doesn’t commit to putting her client (and his former attorney) under oath, which is where this is heading.

And her briefing on Cray is cursory. She deals with the standard under which that defendant tried to withdraw his plea.

United States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995), which this Court requested counsel address, denied withdrawal of a guilty plea because there was no violation of Rule 11. As more recent circuit decisions hold, Rule 11 violation is only one of the reasons that warrants granting a motion to withdraw a plea. Here, Sixth Amendment violations taint Mr. Flynn’s plea, and it cannot stand.38 United States v. McCoy, 215 F.3d 102, 107 (D.C. Cir. 2000) (“A plea based upon advice of counsel that ‘falls below the level of reasonable competence such that the defendant does not receive effective assistance’ is neither voluntary nor intelligent.”) (internal citation omitted).

Moreover, she claims there was a Rule 11 violation in the reallocution before Judge Sullivan, because he didn’t ask Flynn whether there were other promises to induce him to plead.

That plea colloquy did not, however, inquire into whether any undisclosed promises or threats induced the plea agreement. Moreover, the Court specifically expressed its dissatisfaction with the underlying facts supposedly supporting the factual basis for the plea. United States v. Cray, 47 F.3d 1203, 1207 (D.C. Cir. 1995) (“Where the defendant has shown his plea was taken in violation of Rule 11, we have never hesitated to correct the error.)”

But Judge Contreras did allocute to that (in addition to making Flynn attest that he was happy with the advice Rob Kelner gave him).

THE COURT: Have any threats or promises other than the promises made in the plea agreement been made to you to induce you to give up your right to the indictment?

THE DEFENDANT: No.

Flynn now claims that he pled to ensure Mueller would not prosecute his failson, but he didn’t raise it on December 1, 2017 when asked if there any more promises made to him.

Moreover, Powell does not address another part of Cray: that when the judge put him under oath, he revealed that his claims of innocence related to other charges, something Flynn is doing here.

Powell claims Covington did not give Flynn notice of their conflict but provides evidence they did

Rather than making a robust case that Flynn did not commit the crime that he pled guilty to, lying about Russia, she instead argues that Covington was fatally conflicted when they advised Flynn to plead guilty. She argues that Flynn told the entire truth to his Covington attorneys while they were preparing his FARA filing, they didn’t include the information he had provided them, and so they made him plead guilty to get out of trouble they had created themselves.

Before I explain the problems with this, recall that I raised questions about a conflict immediately after the December 2018 sentencing hearing. So I’m actually sympathetic to the argument.

But there are two problems with her argument.

First, she’s obscuring the nature of the lies in Flynn’s FARA filing in an effort to pretend that Flynn did not lie to Covington when preparing the filing. I debunked some of her claims here, but one bears repeating. Flynn’s statement of offense described one of the false statements on the filing as “an op-ed by FLYNN published in The Hill on November 8, 2016 was  written at his own initiative.” Powell pretends this is a dispute over whether Flynn actually wrote the op-ed himself. Flynn did tell Covington, truthfully, that Kian had drafted the op-ed, which Powell notes repeatedly.

But Covington’s notes also show that Flynn told Covington the op-ed had nothing to do with the Turkish contract, and that he did it solely to prove that the Trump campaign was serious about fighting Islamic terrorism.

That is, he not only lied about whether it was his idea to write it, but lied about it being the deliverable for the Turkish contact altogether. As noted above, Flynn testified under oath he didn’t even know this op-ed was coming until Kian delivered it in full draft form to him. And, as DOJ has already made clear, Covington’s lawyers will testify that Flynn didn’t tell them the truth about the op-ed, as this interview report from Rob Kelner makes clear.

(U//FOUO) KELNER was informed by FLYNN the published 11/8/2016 Op-Ed article in The Hill was something he, FLYNN, had wanted to do out of his own interest. FLYNN wanted to show how Russia was attempting to create a wedge between Turkey and the United States. FLYNN informed KELNER the Op-Ed was not on behalf of FIG’s project with INOVO.

So the public record — including notes released by Powell — shows that Flynn (and Kian) were responsible for the false statements in the FARA filing, not Covington.

Moreover, documents submitted by Powell on Wednesday make it clear Covington informed Flynn of the conflict. Flynn (and his wife, who submitted a declaration that now makes it possible for prosecutors to breach spousal privilege) suggests he was only informed of the conflict twice — once in August and once in November after his first proffers. He describes the August advice as a 15-minute conversation he had after pulling over on the side of a road.

The call then occurred while we were driving to have dinner with some friends. It was an approximately 15-minute phone call, where we had pulled off to the side of a highway. They informed us that there was a development regarding a conflict of interest. They also mentioned the possibility of Bijan being indicted. Speaking to the conflict of interest, they stated that they were prepared to defend as vigorously, if the conflict became an issue. We told them we trusted them.

The government has, in the past, noted they raised a potential conflict with Covington twice, on November 1 and November 16, before they ever spoke with Flynn. An exhibit Powell included Wednesday shows that on November 20, 2017, Flynn responded to a Covington email stating the description of the conflict “is very clearly stated” but that “we’re good going forward with you all and very much trust that you will continue to guide us through this difficult time.” The email reflected at least three warnings from Covington:

  • August 30, where they informed him of the conflict and suggested he “obtain advice from a lawyer independent of Covington”
  • A later conversation where they suggested the name of another lawyer with expertise in legal ethics who had already determined he had no conflict who was “willing to be engaged by you for a reduced, fixed fee”
  • The warning on November 19, which for the third time advised him to “seek advice from an independent lawyer about this”

Flynn did not contest their representation of those (at least) three warnings. Powell now claims they cited the wrong rule of professional conduct — about the only claim in the filing that might have merit. And — in a passage denying their (at least) third warning to Flynn — she also suggests that the Covington lawyers faced criminal liability themselves for repeating what their client told them.

What had begun as a simple mistake in doing the FARA filing suddenly had the potential of exposing the Covington lawyers to civil or criminal liability, significant headlines, and reputational risk. That the Covington lawyers thought that a “drive-by” cell-phone chat, while their client was on his way to dinner with his wife, was sufficient disclosure in these dire circumstances revealed their cavalier attitude and presaged far worse. [emphasis original]

She doesn’t note, of course, that Covington’s possible exposure on FARA, and the ability of the government to get them to testify, remained the same whether or not they remained Flynn’s lawyer.

And all that’s before Covington starts producing other records that are less complimentary to Flynn.

Remember: A key part of Sidney Powell’s argument here is that Covington — the lawyers who advised Flynn that if he withdrew his plea in December 2018 he’d only be giving Judge Sullivan more rope to hang himself with — provided obviously incompetent legal advice.

Be careful what you wish for

Way back when Flynn first got cute in advance of his December 2018 sentencing, I warned him, be careful what you wish for. Raising the circumstances of his FBI interview was likely, I predicted, to get Sullivan to ask for those details.

Which he subsequently did, resulting in damning new information about Flynn’s lies to be released.

I feel like that’s bound to happen here. For example, Powell keeps complaining that DOJ won’t provide her Flynn’s DIA briefings regarding his trips to Russia. She has raised what happened in Flynn’s proffers, but not provided the 302s which even Flynn’s declaration suggests was a disaster. The government has already telegraphed they may release this stuff.

There’s even the possibility that if Judge Sullivan asks to have witnesses, DOJ will ask that Don McGahn, John Eisenberg, or Reince Priebus testify. According to the Mueller Report, they all believed he was lying to them about what he remembered he had said to Kislyak.

So in addition to not heeding the advice about giving a judge more rope to hang you with, I feel like someone should have warned Flynn to be careful of what he wishes for. Again.

A number of people have pointed to Bill Barr’s sudden installation of a loyal aide at DC US Attorney and assumed it means the fix is in for the Flynn sentencing.

Attorney General William P. Barr on Thursday named former federal prosecutor Timothy Shea as the District’s interim U.S. attorney.

Shea, 59, currently serves as a counselor to Barr at the Justice Department. He will oversee the nation’s largest U.S. attorney’s office with 300 prosecutors.

The announcement comes just a day before Jessie K. Liu, the city’s current U.S. attorney, leaves office on Friday.

Liu, 47, has served in the post for a little over two years. President Trump on Jan. 6 nominated her to become the Treasury Department’s undersecretary for terrorism and financial crimes, and her nomination is pending before the Senate Banking Committee.

I absolutely don’t discount the possibility that Barr did this to better retaliate against Andrew McCabe and shut down the remaining investigations of Trump’s aides being conducted by the DC US Attorney’s office. As I may get around to showing, I think the risk is particularly acute for Roger Stone’s sentencing, where Trump has far more untapped exposure than Flynn. And it may well be the case that Barr and Shea force prosecutors to submit a half-hearted response to this motion to withdraw (though some of them are actually NSD attorneys who report up through other channels).

But at this point, the damage has already been done. There is no way to change the fact that Flynn has sworn to statements, under oath, before Judge Sullivan that materially conflict.