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Judge Emmet Sullivan Just Created Four Big Problems for DOJ in the Mike Flynn Case

Judge Emmet Sullivan just issued an order that may well destroy DOJ’s presumption of regularity (the legal principle that unless the government really fucks up, you have to assume they didn’t fuck up) in the Mike Flynn case.

He noted that on September 29, he had ordered DOJ to certify all documents submitted as exhibits in the motion to dismiss proceeding, but that DOJ had not done so. Instead, it admitted that it had “inadvertently” altered two Peter Strzok and one Andrew McCabe documents, and asked for a mulligan.

So now he’s ordering DOJ to do what he first ordered: to certify all the exhibits submitted to this docket (both those submitted directly by DOJ and those submitted by Flynn’s team) and provide a transcription and the author and date of any handwritten notes.

MINUTE ORDER as to MICHAEL T. FLYNN. During the September 29, 2020 motion hearing, the Court informed the government that it would need government counsel to authenticate documents filed with the Court. See Hr’g Tr., ECF No. 266 at 91:19-92-21; see also Min. Order (Sept. 29, 2020) (ordering the parties to file any supplemental materials by no later than October 7, 2020). On October 7, 2020, the government filed [259] Notice of Compliance in which it stated that: (1) Federal Bureau of Investigation (“FBI”) agents assigned to review Mr. Strzok’s notes had placed sticky notes on the document with estimated dates, and the sticky notes had not been removed prior to scanning the documents for production purposes (see ECF Nos. 248-2, 248-3); and (2) a sticky note with an estimated date had been placed on the notes of Andrew McCabe, and the sticky note had not been removed prior to scanning the document for production purposes (see ECF No. 248-4). The government stated that the notes of Mr. Strzok and Mr. McCabe were otherwise unaltered, and it provided the unaltered versions of Mr. Strzok’s and Mr. McCabe’s notes. See Exs. to Notice of Compliance, ECF Nos. 259-1, 259-2, 259-3. However, the government did not address the Court’s authentication request despite the government’s acknowledgement that altered FBI records have been produced to Mr. Flynn and filed on the record in this case. See Notice of Compliance, ECF No. 259. The government has filed a motion to dismiss pursuant to Federal Rule of Criminal Procedure 48(a), has attached 13 Exhibits to that motion, and has cited the Exhibits throughout its motion to support its description of the factual background and its argument in support of dismissal. See generally Mot. Dismiss, ECF No. 198. The government has also filed a supplement to its motion and attached an Exhibit to that supplement. Suppl., ECF No. 249. Although the government relies heavily on these 14 Exhibits, the government has not provided a declaration attesting that the Exhibits are true and correct copies. “The presumption [of regularity] applies to government-produced documents” and “to the extent it is not rebutted–requires a court to treat the government’s record as accurate.” Latif v. Obama, 666 F.3d 746, 748, 750 (D.C. Cir. 2011). Here, however, the government has acknowledged that altered FBI records have been produced by the government and filed on the record in this case. See Notice of Compliance, ECF No. 259. Accordingly, the government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 in support of its motion to dismiss that the Exhibits attached to its motion and supplement are true and correct copies. It is FURTHER ORDERED that the government’s declaration shall identify each exhibit by name, date, and author. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits. The government has also filed on the record in this case numerous notices of filing discovery correspondence and Mr. Flynn has generally filed the discovery produced on the record in this case as Exhibits to his supplementary filings. See ECF Nos. [228], [231], [237], [248], [251], [257], [264]. The government has acknowledged that the discovery provided to Mr. Flynn and thereafter filed on the record contained altered FBI records. See Notice of Compliance, ECF No. 259. Accordingly, the government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 that the discovery documents provided to Mr. Flynn and filed on the record in this case are true and correct copies. It is FURTHER ORDERED that the government’s declaration shall identify each discovery document by name, date, and author. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits.

This is going to create four problems for DOJ.

First, there’s no way they can finish this by Monday. Even if the lawyers on this case were as familiar with these documents as they claimed to be, it would take more than this weekend to transcribe and double check everything. They will likely ask for an extension, one that would extend the order past the election.

Plus, once they do transcribe these documents, it will become crystal clear that parts of the notes — most notably, the Bill Priestap notes they’ve claimed are a smoking gun — in fact confirm that every single witness agreed on the purpose of the January 24, 2017 Mike Flynn interview: to see whether Flynn would lie. By submitting a transcript, then, they will have to admit they’ve misrepresented the substance of the documents.

Then, this order will catch them in their past false claims about the date of (at least) the January 5, 2017 Peter Strzok notes. As I’ve noted, DOJ has submitted several documents in this docket making it clear that Strzok’s notes must have been written on January 5, 2017. Except they falsely claimed not to know. There’s probably no easy way out of this problem.

Finally, there is this exhibit, which also had a date added, but a date added via means that cannot have been accidental.

It’s possible that that redaction doesn’t cover over an existing date (but my annotation, in red, may show the hash marks of a date). But I don’t see how DOJ can authenticate this, and they’re going to have to tell Sullivan who wrote it, making it really easy for journalists to call up the author and get him to confirm or deny the date.

Notably, after Strzok and McCabe’s lawyers gave notice that DOJ had altered their notes, Sidney Powell submitted a demand that Judge Sullivan prevent anyone else from telling him their notes had been altered. So maybe she has exhibits about which she has specific concerns.

The false Strzok claims, by themselves, are going to make a truthful declaration here difficult, if not impossible. But that’s not even the only problem this order will create for DOJ.

Update: There are two sets of documents Sullivan is now asking DOJ to ID the author, provide date, and transcribe: those linked in this post and those in this document cloud project.

The Desperation of the Jeffrey Jensen Investigation Already Made Clear that John Durham Won’t Indict

Yesterday, a sick man called into Maria Bartiromo’s show and wailed that his opponents had not been indicted.

Bartiromo: Mr. President. We now know from these documents that John Ratcliffe unveiled that it was Hilary Clinton’s idea to tie you to Russia in some way. It was successful. The whole country was talking about it for two and a half years. But what comes next, Mr. President? We can have all of these documents, we can see exactly what happened but unless John [Durham] comes out with a report or indictments unless Bill Barr comes out with a — a — some kind of a ruling here, do you think this is resonating on the American people?

Trump: Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it. But these people should be indicted, this was the greatest political crime in the history of our country and that includes Obama and it includes Biden. These are people that spied on my campaign and we have everything. Now they say they have much more, OK? And I say, Bill, we’ve got plenty, you don’t need any more. We’ve got so much, Maria, even — just take a look at the Comey report, 78 pages of kill, done by Horowitz, and I have a lot of respect for Horowitz, and he said prosecute. He recommended prosecute and they didn’t prosecute. I was — I couldn’t believe it, but they didn’t do it, because they said we have much bigger fish to fry. Well, that’s OK, they indicted Flynn for lying and he didn’t lie. They destroyed many lives, Roger Stone, over nothing. They destroyed lives. Look at Manafort, they sent in a black book, it was a phony black book, phony, they made up a black book of cash that he got from Ukraine or someplace and he didn’t get any cash.

In the comment, he described speaking directly to Billy Barr about the urgency of prosecuting his political opponents.

In response to this attack, Billy Barr has started telling Republican members of Congress that John Durham isn’t going to indict before the election.

Attorney General Bill Barr has begun telling top Republicans that the Justice Department’s sweeping review into the origins of the Russia investigation will not be released before the election, a senior White House official and a congressional aide briefed on the conversations tell Axios.

Why it matters: Republicans had long hoped the report, led by U.S. Attorney John Durham, would be a bombshell containing revelations about what they allege were serious abuses by the Obama administration and intelligence community probing for connections between President Trump and Russia.

  • “This is the nightmare scenario. Essentially, the year and a half of arguably the number one issue for the Republican base is virtually meaningless if this doesn’t happen before the election,” a GOP congressional aide told Axios.
  • Barr has made clear that they should not expect any further indictments or a comprehensive report before Nov. 3, our sources say.

Barr is excusing the delay by saying that Durham is only going to prosecute stuff he can win.

What we’re hearing: Barr is communicating that Durham is taking his investigation extremely seriously and is focused on winning prosecutions.

  • According to one of the sources briefed on the conversations Barr said Durham is working in a deliberate and calculated fashion, and they need to be patient.
  • The general sense of the talks, the source says, is that Durham is not preoccupied with completing his probe by a certain deadline for political purposes.

This back and forth represents a fundamental misunderstanding of what must be going on.

The Durham investigation should not, at this point, be considered separately from the Jeffrey Jensen investigation attempting to invent a reason to blow up the Flynn prosecution. That’s been true since Barr appointed Jensen because Durham hadn’t yet discovered anything to dig Sidney Powell out of the hole she had dug Flynn. But it’s especially true now that documents that would be central to the Durham inquiry are being leaked left and right — whether it’s the report that the FBI knew that Igor Danchenko had been investigated (like Carter Page and Mike Flynn) as a possible Russian agent, or specific details about when the FBI obtained NSLs on Mike Flynn.

The investigative integrity of the Durham investigation has been shot beyond recovery.

Plus, the sheer desperation of the Jensen investigation raises real questions about whether a credible investigation could ever find anything that could sustain a prosecution, in any case. That’s because:

  • Jensen has repeatedly provided evidence that proves the opposite of what DOJ claims. For example, the Bill Priestap notes that DOJ claimed were a smoking gun actually show contemporaneous proof for the explanation that every single witness has offered for Mike Flynn’s interview — that they needed to see whether Flynn would tell the truth about his calls with Sergey Kisklyak. Plus, now there’s a Priestap 302, one DOJ is hiding, that further corroborates that point. That evidence blows all the claims about the centrality of the Logan Act to interviewing Flynn out of the water, and it’s already public.
  • Jensen’s investigators submitted altered exhibits to sustain easily disprovable claims. DOJ has claimed that this tampering with evidence was inadvertent — they simply forgot to take sticky notes off their files. That doesn’t explain all the added dates, however, undermining their excuse. Moreover, if they didn’t intentionally tamper with evidence, they’re left claiming either that they haven’t read the exhibits they’ve relied on thus far in this litigation, or that they’re so fucking stupid that they don’t realize they’ve already disproven their own assumptions about dates. Add in the way their “errors” got mainlined to the President via a lawyer meeting with Trump’s campaign lawyer, and the whole explanation gets so wobbly no prosecutor would want to proceed toward prosecution with problems that could so easily be discoverable (or already public).
  • Jensen’s investigators got star witness William Barnett to expose himself as a partisan willing to forget details to help Trump. Along with an analyst that was skeptical of the Flynn case (but who was moved off before the most damning evidence came in), Barnett would need to be the star witness in any case alleging impropriety in the investigation. But rather than hiding Barnett’s testimony and protecting his credibility, Jensen made a desperate bid to get his claims on the record and make it public. And what the 302 actually shows — even without a subpoena of Barnett’s personal ties and texts sent on FBI phones — is that in his interview, Barnett claimed not to understand the case (even though documents he filed show that he did, contemporaneously), and either did not remember or deliberately suppressed key evidence (not least that Flynn told Kislyak that Trump had been informed of his calls).  The 302 further showed Barnett presenting as “truth” of bias claims that instead show his willingness to make accusations about people he didn’t work with, even going so far as to repackage his own dickish behavior as an attempt to discredit Jeannie Rhee. Finally, by hiding how many good things Barnett had to say about Brandon Van Grack, DOJ has made it clear that the only thing Barnett can be used for is to admit that he, too, believes Flynn lied, didn’t have a problem with one of the key investigators in the case, and that his views held sway on the final Mueller Report. Had Durham managed this witness, Barnett might have been dynamite. Now, he would be, at best, an easily discredited partisan.

Jensen is working from the same evidence that Durham is. And what the Jensen investigation has shown is that it takes either willful ignorance or deliberate manipulation to spin this stuff as damning. And in the process, Jensen has destroyed the viability of a witness and possibly other pieces of evidence that any credible prosecution would use.

DOJ might make one last bid in giving Trump what he wants, allegations against his adversaries, by using the initial response in the McCabe and Strzok lawsuits as a platform to make unsubstantiated attacks on them (DOJ got an extension in both cases, but one that is still before the election). But those attacks will crumble just like the Jeffrey Jensen case has, and do so in a way that may make it easier for McCabe and Strzok to get expansive discovery at the underlying actions of people like Barnett.

Billy Barr has largely shot his wad in drumming up accusations against Trump’s critics. And along the way, he has proven how flimsy any such claims were in the first place.

The “Scanned” Andrew McCabe Notes Weren’t [Just] “Scanned”

The story DOJ offered yesterday to explain why they had altered several exhibits of undated notes raise more questions then they answered. In both cases where DOJ has admitted the exhibits had added dates — Peter Strzok and Andrew McCabe — those dates are problematic.

Plus, the excuse offered for those dates — that someone forgot to take off a clear sticky and post-it notes before copying the exhibit — can’t explain the third instance where DOJ added a date, where they incorporated it into the redaction of notes taken from a meeting involving ODAG’s office.

Indeed, the redaction may even cover an existing date (see what look like the slashes of a date, outlined in red, though that could also record the names of other attendees), with a date added in the redaction (outlined in yellow).

Moreover, there’s a problem with the excuse DOJ offered about the McCabe notes, which went as follows:

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production.

That is, DOJ is claiming that “someone” missed a blue “flag” when they were “scanning” McCabe’s notes and so inadvertently left a date — the wrong date, probably — on the exhibit, without leaving any sign on the exhibit itself.

The problem with this explanation is that we know precisely what a blue sticky left on an actual “scan” looks like. It looks just like what we say in the Bill Priestap notes submitted three times under two different Bates stamp numbers.

That is, if the document were just scanned, it would show up quite obviously, as it does here, and would be impossible to miss.

And yet this “scan” attributed to “somebody” doesn’t show up, possibly because the redaction covers it.

 

On a Key Issue in Mike Flynn’s Case — which FBI Agent to Believe — DOJ Argued against DOJ

The epic five hour hearing in the Mike Flynn case just wrapped up.

The most notable events, one which may utterly sway Judge Sullivan’s opinion, were two details that would give Sullivan reason to say this is the exceptional case where he should not grant the motion to dismiss.

The first was Sidney Powell’s admission that she has spoken to the President about this case, and also spoken with Trump’s campaign lawyer, Jenna Ellis, about it, the latter apparently more than once. Powell tried to claim Executive Privilege for her conversation(s) with the President about the case, until Sullivan pointed out the sheer absurdity of that. Powell was never asked why she was speaking to a lawyer, Ellis, whose job it is to make sure the President doesn’t break any campaign finance laws about this case. Still, those admissions, handled with all the leaden aplomb that Powell exemplifies, will provide Sullivan ample basis (on top of Trump’s tweets and everything else) to prove that this was all politicized by the President.

The other detail that might really sway Sullivan was the judge’s mention of Aitan Goelman’s letter informing Judge Sullivan that someone — and Goelman did not speculate on who might have done this — altered the notes of his client. Sullivan said he was “floored” when he read the letter.  Later on, Powell accused Strzok of being the dirtiest FBI agent of all time. Some other things make me wonder — though this would make the logistics rather interesting — whether Powell was the one who altered the notes. In any case, Sullivan ordered that someone authenticate the filings submitted to the court.

Judge Sullivan was already bugged by the letter Sidney Powell wrote to Billy Barr asking that he do all the things he subsequently did, notably appoint a lawyer to review the entirety of the prosecution. The confirmation that Powell has been personally lobbying Trump’s (!!!) campaign lawyer for intervention seems to seal the proof that this is political.

Still, perhaps a more substantive problem with the pro-Flynn argument is that DOJ’s two representatives (Ken Kohl for the DC US Attorney’s Office) and the Solicitor General’s counsel, Hashim Mooppan) contradicted each other on a key issue.

Mooppan repeatedly claimed, “what if it were true that this was a witch hunt”? He relied, significantly, on two things. First, Bill Priestap’s notes clearly recording that FBI did the interview to figure out whether Mike Flynn would tell the truth.

Rather than focusing on what Priestap and every witness confirmed in real time and since was the purpose of the interview, Mooppan instead focused on Priestap’s notation of the debate before this, about whether they just wanted to get Flynn to lie. As John Gleeson pointed out, though, that would not make Flynn abnormal at all. That happens to defendants all the time. But in fact, Gleeson further noted, that’s not what happened; Peter Strzok and Joe Pientka actually cued Flynn with his own words to make sure he had an opportunity to fix the record, and Flynn did not do so. Moreover, all other witnesses said the same thing Priestap did: the point of the interview was to see if Flynn would tell the truth.

Plus, there’s a real problem with Mooppan’s reliance on Priestap’s notes. As the NYT reported, DOJ rushed to move to dismiss the case while Priestap’s 302 was being finalized.

Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan. They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court.

The department’s motion referred to notes that Mr. Priestap wrote around the bureau’s 2017 questioning of Mr. Flynn, who later pleaded guilty to lying to investigators during that interview. His lawyers said Mr. Priestap’s notes — recently uncovered during a review of the case — suggested that the F.B.I. was trying to entrap Mr. Flynn, and Attorney General William P. Barr said investigators were trying to “lay a perjury trap.”

That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case. He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.

The department’s decision to exclude mention of Mr. Priestap’s interview in the motion could trouble Judge Sullivan, who signaled late on Tuesday that he was skeptical of the department’s arguments.

In spite of its ability to turn Bill Barnett’s 302 around in a week, DOJ has never disclosed Priestap’s 302 debunking this claim to Judge Sullivan. These notes don’t say what Mooppan falsely claimed to Sullivan they did. And that may become more clear in days ahead.

The other thing Mooppan relied upon, repeatedly, was the claim that Pientka and Strzok didn’t believe Flynn had lied after they interviewed him (he also relied on a Jim Comey comment, made without knowledge of all the evidence that FBI subsequently gathered, that corroborated the evidence that Flynn had lied). Except that’s not what they said (and some of the texts that DOJ has released make this clear). They believed Flynn either believed what he said (though they’d get proof later he did not), or that he was just a very accomplished liar.

Meanwhile, Ken Kohl, who was named Acting Principal AUSA at around the same time as this motion to dismiss, and who seemed genuinely ignorant of key details of the case but nevertheless wanted to claim that DC USAO wasn’t acting politically (Roger Stone’s case did not come up), said a number of things that conflict with what DOJ has already said (including that any of this was Brady).

Significantly, however, he seemed really impressed with Bill Barnett’s 302, perhaps because he doesn’t know the case well enough to know how many glaring contradictions there are in the 302 (which makes me wonder whether he was a source for WaPo’s supine treatment of the interview). Kohl talked about all the claims — belied by actual primary documents, basic logic, and gravity — Barnett made that don’t hold up to scrutiny.

The question of whether Bill Barnett sent pro-Trump tweets on his FBI phone — making him the mirror image of Peter Strzok — never came up in today’s hearing.

But John Gleeson did note that Barnett had none of the doubts that Mooppan claimed (falsely) that Strzok and Pinetka had.

That means, ultimately, DOJ was arguing against DOJ.

Mooppan claimed that Strzok and Pientka’s alleged doubts that Flynn lied — refuted by documents already shared with Sullivan — proved DOJ had to dismiss the case. Kohl, meanwhile, claimed that Barnett’s 302 — which showed he had absolutely no doubt that Flynn lied to the FBI — proved DOJ couldn’t prosecute the case.

There’s not actually a controversy here: At least Strzok and Barnett agree that Flynn lied, which should be all it takes. (Indeed, Barnett could testify that Flynn did lie, if DOJ needs an aggressively pro-Trump agent to put on the stand.)

But the Solicitor General’s office relies on the agents who said that Flynn was a good liar and DC USAO sides with the agent who states clearly that Flynn lied.

John Gleeson has noted that DOJ can’t keep its story straight from week to week. In today’s hearing, they couldn’t even keep their story straight from lawyer to lawyer.

The Jeffrey Jensen “Investigation:” Post-It Notes and Other Irregularities

I noted the other day that Jeffrey Jensen had not asked William Barnett some basic questions (such as the import of Mike Flynn’s lies to the decision to interview Flynn or the names of colleagues who had purportedly joked about “wiping” their phones) that you would expect from a half-serious investigation. That’s ironic, since one of Barnett’s allegations about Mueller’s investigators is that they didn’t ask basic follow-up questions (the public record conflicts with a number of Barnett’s claims about the Mueller investigation).

Given my discovery about differences between two versions of Peter Srtzok’s notes purportedly “discovered” in the Jensen investigation, I want to look more closely at what the Bates stamps and Post-It note practices of the investigation suggest about it. I believe I have put all the documents released under the guise of the Jensen investigation here (though have not finished annotating them). I’ve put what delivery correspondence got released explaining those documents below (I’ve updated these on 9/29).

Both Bates series are labeled SCO documents even when they’re not SCO documents

There are actually two sets of Bates stamps among the exhibits submitted in an effort to blow up the Flynn prosecution.

One series includes Bates stamps DOJSCO700021192-21198 (Joe Pientka and Peter Strzok’s notes from Flynn’s interview), DOJSCO700021201-21205 (Peter Strzok’s July 19, 2017 302). and DOJSCO 700022308-12 (a version of the January 24, 2017 Flynn 302). Here’s what the typeface of that Bates stamp looks like:

These reflect documents turned over to Flynn in discovery before Barr started blowing up the prosecution (see this Strzok 302 and his notes included as part of this exhibit). These were all submitted with the Motion to Dismiss on May 7, 2020. The inclusion of documents with an earlier stamp is not at all nefarious. Indeed, it helps to distinguish three different types of documents submitted with the Motion to Dismiss:

  • Documents already turned over to Flynn, which were submitted accompanying the MTD with their original Bates stamp
  • Documents Sidney Powell had asked for but which Emmet Sullivan rejected as Brady discovery; these have no Bates stamp (though Sullivan has reviewed some of these documents)
  • Documents that were “discovered” as “new” to justify the Motion to Dismiss; they have the later Bates stamp

Here’s an example of the Jensen typeface:

Remember: these weren’t new to the FBI Agents or prosecutors on the team. They were just “new” to Jeffrey Jensen, who was brought in from St. Louis just to provide the documents a virgin birth.

The one “tell” about this Bates stamp is that it incorporates documents that well precede the Mueller investigation, and probably weren’t part of the Mueller investigation, under an SCO stamp.

I guess “BillyBarrBlowsUpBobby3Sticks” would be too obvious.

Bill Priestap’s original notes, with sticky note, has two Bates numbers

Once you get into the Jensen Bates stamp, documents often get submitted over and over. The most remarkable example of that are Bill Priestap’s notes from a January 24, 2017 meeting prior to the Flynn interview. Bates DOJSCO 700023464 was submitted twice (because Flynn’s lawyers screwed up the upload), once as part of Docket #188 and again as part of Docket #190. Then, the exact same document was submitted as DOJSCO 700022702 as part of the Motion to Dismiss.

This is interesting for two reasons. It’s common to find the same document with two different Bates stamp numbers. For example, if four people have received the same email, it may show up in discovery four times, with four different Bates stamps. But that’s more common with electronic files, for obvious reasons.

But this is not multiple digital versions of the same document. Both copies have the same blue sticky note on it, meaning both exhibits were scanned (or were from the same scan).

That wouldn’t be all that weird if the digital exhibits submitted with the Motion to Dismiss had different Bates numbers. But they generally don’t. For example, William Barnett’s draft Closing Communication has Bates stamp DOJ SCO 700023466 in both the exhibit Flynn’s team released on April 30 and the version submitted with the Motion to Dismiss.

The most curious detail of the two instances of the original copy of Priestap’s notes is that the one submitted later, with the Motion to Dismiss, has a much earlier (762 pages) Bates stamp. My eyes are beginning to blur, but I think the one other instance of this involves three documents involving Peter Strzok in advance of the Mike Flynn interview.

The earlier Bates notes might suggest that those select documents from January 23 and 24 were found — perhaps even before Jensen began work — and the disclosure theater in service of the Motion to Dismiss all followed it.

If that’s true, DOJ’s failure to release Priestap’s 302 explaining all this is fairly damning, given that DOJ is suppressing his explanation even while re-releasing the same documents.

DOJ falsely presents annotations as unaltered hand-written notes, misleadingly so with one set of Strzok notes

Which brings me to where I started this rabbit hole: with Jensen’s treatment of hand-written notes. I’ll probably miss something but I think the hand-written notes released by Jensen include:

The interview notes are a different animal (though remember that FBI got the mixed up and no one figured it out for months, possibly until I pointed it out).

Whoever took the Boente notes added a date in real time. That’s likely, though not certain, in the case of Gauhar. Priestap almost certainly dated his own notes (though it’s unclear who put that blue sticky on them).

In the unredacted bits, there is no date on Strzok’s January 25 notes. As noted, the originally released version of Strzok’s notes, which is a scan of the original, has no date (and Jeffrey Jensen provided Sidney Powell a range rather than the obvious date of January 5 for them, so she could make a false claim about Joe Biden).

The copy of Strzok’s March 28, 2017 notes, Bates Stamp 700023501 has the date added. It appears to have been added with a Post-It (annotated in yellow). It also appears that you can see Post-It note tabs (annotated in red) picked up on the copy, some with notes on them.

It appears, then, that someone simply made a copy of the notes without taking them out of a notebook. I have no reason to believe the date is inaccurate, though I am intrigued by the way the redaction obscures what would be the edges of the date Post-It.

The date on Andrew McCabe’s notes, with a Bates stamp 700023502, the next in the series, appears to have been added after the fact by someone other than the person who took the notes. While it has some similarities with the date on the Strzok notes, it doesn’t cross the 7 as one of the two Strzok annotations did, and could easily have been added by whoever filed the notes in real time.

 

Finally, the new version of Strzok’s January 5, 2017 notes, with a Bates stamp 700023503 and so the next in a series, include the added date and some newly unredacted content (inside the red rectangle).

As noted, there is absolutely no doubt that these notes were written on January 5, 2017 (indeed, the newly unredacted details match other versions of this meeting). But after having released an unannotated version of this document, Jensen (or whoever is running this rodeo) decided to release another version that affirmatively misleads about that certainty.

The other instances of these date annotations are not nefarious, as far as I understand it. But pretending there was confusion about the date of these notes served to support an attack on Joe Biden. And rather than clearing all that up, DOJ has done what Kevin Clinesmith faces prison time for having done: alter a record.

It is inaccurate to say these are “Peter Strzok’s hand-written notes” (and, if the McCabe date was added after the fact, those too). Rather, this is a copy of Strzok’s hand-written notes that appear as a page in someone’s investigative notebook, and the date reflects an alteration — not identified to the court — to Strzok’s notes, an alteration that introduces an error.

Let me clear: I don’t think the dates change the investigative significance of these notes. I believe the January 5 notes have zero investigative significance, taken in context. I think the redaction of Brandon Van Grack’s name — if that’s what happened in William Barnett’s 302 — is a far graver example of abuse, because it serves to hide the baselessness of DOJ and Flynn’s complaints.

Rather, all these details reflect what an amateur effort Barr’s effort to blow up Flynn’s prosecution is. These irregularities, while not dramatically affecting the underlying evidentiary claim (excepting Powell’s attack on Joe Biden), suggest that no one is conducting a real investigation that would have to sustain future judicial review. They’re doing nothing except producing propaganda.


April 24: Jocelyn Ballantine files notice of discovery correspondence along with that correspondence.

Beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The review by USA EDMO has involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation (“FBI”) personnel associated with the investigation.

The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

April 24: Powell submits two documents obtained from Covington & Burling, a Rob Kelner email indicating that C&B has an understanding that Mueller is unlikely to charge Jr, and another letter making it quite clear that Mueller did not make promises.

April 29: Ballantine files notice of discovery correspondence along with that correspondence.

As we disclosed by letter dated April 24, 2020, beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020, and are provided to you as a result of this ongoing review; additional documents may be forthcoming.1 These materials are covered by the Protective Order entered by the Court on February 21, 2018.

1 Note that the enclosed spreadsheet (DOJSCO-700023473 – DOJSCO700023475), which contains messages between and among various Bureau personnel, is an index and another detailed version of these messages is forthcoming.

May 5: Ballantine files notice of discovery correspondence along with that correspondence.

 As we disclosed by letter dated April 24, 2020, beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USA EDMO in March, April and May 2020; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

May 18: Ballantine files notice of discovery correspondence along with that correspondence.

As we disclosed by letter dated April 24, 2020, beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USA EDMO in March, April and May 2020; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

June 23: Ballantine files notice of discovery correspondence along with that correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed document was obtained and analyzed by USA EDMO during the course of its review. This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5. These materials are covered by the Protective Order entered by the Court on February 21, 2018; additional documents may be forthcoming.

June 24: Powell accuses Biden of starting the Logan Act investigation based off false date on Strzok notes.

July 7: Ballantine files notice of discovery correspondence along with that correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. The documents include handwritten notes of former Deputy Assistant Attorney General Tashina Gauhar from a January 25, 2017 meeting (23487-80), notes of former Deputy Assistant Director Peter Strzok from that same meeting (23491-92), an internal DOJ document dated January 30, 2017 (23493-97), and handwritten notes of then Acting Attorney General Dana Boente, dated March 30, 2017 (23498-500). These materials are covered by the Protective Order entered by the Court on February 21, 2018; additional documents may be forthcoming.

September 23: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. The documents include handwritten notes of former Deputy Assistant Director Peter Strzok (23501 & 23503) and former Deputy Director Andrew McCabe (23502); and internal text messages between FBI analysts who worked on the Flynn matter (23504- 23516).

We are also providing you with additional text messages between former DAD Strzok and Lisa Page (23516-23540). As you know, some of these messages were originally made available to Flynn’s former attorneys on March 13, 2018 through a publicly available link to a Senate webpage. On June 24, 2018, the government provided a link to a second website that contained additional text messages. In an abundance of caution, we are providing you additional text messages in this production; please note that purely personal messages have been deleted from this production.

September 24: Powell files supplement quoting notice.

The documents include handwritten notes of former Deputy Assistant Director Peter Strzok (23501 & 23503) and former Deputy Director Andrew McCabe (23502); and internal text messages between FBI analysts who worked on the Flynn matter (23504- 23516); . . . additional text messages between former DAD Strzok and Lisa Page (23516-23540).

September 24: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. Attached hereto is a summary of the National Security Letters issued by the FBI (23541-42) and a related email (23543-44).

September 24: Ballantine sends Powell notice of the William Barnett 302 without noticing Judge Sullivan an unclassified version was shared with Flynn’s team.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. On September 17, 2020, United States Attorney Jeffery Jenson conducted an interview of Special Agent William J. Barnett. A copy of the report of that interview is attached to this letter. The government is filing a redacted version of this report of interview as an attachment to its supplemental motion to dismiss tonight.

The unredacted version of the report of interview is covered by the Protective Order entered by the Court on February 21, 2018, and is designated “sensitive.”

September 27: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. Attached hereto is are notes of three ODAG attorneys, numbered 23559- 23562

September 28: Ballantine files four different notices of discovery correspondence at once (resulting in delayed notification to John Gleeson).

 

Catherine Herridge Attempts to Relaunch Bullshit Conspiracies Answered by Peter Strzok’s Book

I hope to write a post arguing that Peter Strzok’s book came out at least six months too late.

But for the moment, I want to float the possibility that Nora Dannehy — John Durham’s top aide — quit last Friday at least in part because she read parts of Strzok’s book and realized there were really compelling answers to questions that have been floating unasked — and so unanswered — for years.

High-gaslighter Catherine Herridge raises questions already answered about Crossfire Hurricane opening

Yesterday, the Trump Administration’s favorite mouthpiece for Russian investigation conspiracies, Catherine Herridge, got out her high-gaslighter to relaunch complaints about facts that have been public (and explained) for years.

Citing an unnamed “former senior FBI Agent” and repeating the acronym “DIOG” over and over to give her high-gaslighting the patina of news value, she pointed to the fact that Strzok both opened and signed off on the Electronic Communication opening Crossfire Hurricane, then suggested — falsely — that because Loretta Lynch was not briefed no one at DOJ was. It’s pure gaslighting, but useful because it offers a good read on which aspects of Russian investigation conspiracies those feeding the conspiracies feel need to be shored up.

Note, even considering just the ECs opening investigations, Herridge commits the same lapses that former senior FBI Agent Kevin Brock made in this piece. I previously showed how the EC for Mike Flynn addresses the claimed problems. I’m sure it’s just a coincidence that Herridge’s anonymous former senior FBI Agent is making the same errors I already corrected when former senior FBI Agent Kevin Brock made them in May.

All that said, I take from Herridge’s rant that her sources want to refocus attention on how Crossfire Hurricane was opened.

Peter Strzok never got asked (publicly) about how the investigation got opened

As it happens, that’s a question that Strzok had not publicly addressed in any of his prior testimony.

Strzok was not interviewed by HPSCI.

Strzok was interviewed by the Senate Intelligence Committee on November 17, 2017. But they don’t appear to have asked Strzok about the investigation itself or much beyond the Steele dossier; all six references to his transcript describe how the FBI vetted the Steele dossier.

Deputy Assistant Director Pete Strzok, at that point the lead for FBI’ s Crossfire Hurricane investigation, told the Committee that his team became aware of the Steele information in September 2016. He said, “We were so compartmented in what we were doing, [the Steele reporting] kind of bounced around a little bit,” also, in part, because [redacted] and Steele did not normally report on counterintelligence matters. 5952 Strzok said that the information was “certainly very much in line with things we were looking at” and “added to the body of knowledge of what we were doing.”5953

Peter Strzok explained that generally the procedure for a “human validation review” is for FBI’ s Directorate of Intelligence to analyze an asset’s entire case file, looking at the reporting history, the circumstances of recruitment, their motivation, and their compensation history.6005 Strzok recalled that the result was “good to continue; that there were not significant concerns, certainly nothing that would indicate that he was compromised or feeding us disinformation or he was a bad asset.”6006 However, Strzok also said that after learning that reporters and Congress had Steele’s information:

[FBI] started looking into why he was assembling [the dossier], who his clients were, what the basis of their interest was, and how they might have used it, and who would know, it was apparent to us that this was not a piece of information simply provided to the FBI in the classic sense of a kind of a confidential source reporting relationship, but that it was all over the place. 6007

[snip]

Strzok said that, starting in September 2016, “there were people, agents and analysts, whose job specifically it was to figure this out and to do that with a sense of urgency.”6021

Strzok was also interviewed in both a closed hearing and an open hearing in the joint House Judiciary and House Oversight investigations into whatever Mark Meadows wanted investigated. The closed hearing addressed how the investigation got opened, but an FBI minder was there to limit how he answered those questions, citing the Mueller investigation. And even there, the questions largely focused on whether Strzok’s political bias drove the opening of the investigation.

Mr. Swalwell. Let me put it this way, Mr. Strzok: Is it fair to say that, aside from the opinions that you expressed to Ms. Page about Mr. Trump, there was a whole mountain of evidence independent of anything you had done that related to actions that were concerning about what the Russians and the Trump campaign were doing?

Ms. Besse. So, Congressman, that may go into sort of the — that will — for Mr. Strzok to answer that question, that goes into the special counsel’s investigation, so I don’t think he can answer that question.

Even more of the questions focused on the decision to reopen the Clinton investigation days before the election.

To the extent that the open hearing, which was a predictable circus, addressed the opening of Crossfire Hurricane at all (again, there was more focus on Clinton), it involved Republicans trying to invent feverish meaning in Strzok’s texts, not worthwhile oversight questions about the bureaucratic details surrounding the opening.

The DOJ IG Report backs the Full Investigation predication but doesn’t explain individual predication

The DOJ IG Report on Carter Page does address how the investigation got opened. It includes a long narrative about the unanimity about the necessity of investigating the Australian tip (though in this section, it does not cite Strzok).

From July 28 to July 31, officials at FBI Headquarters discussed the FFG information and whether it warranted opening a counterintelligence investigation. The Assistant Director (AD) for CD, E.W. “Bill” Priestap, was a central figure in these discussions. According to Priestap, he discussed the matter with then Section Chief of CD’s Counterespionage Section Peter Strzok, as well as the Section Chief of CD’s Counterintelligence Analysis Section I (Intel Section Chief); and with representatives of the FBI’s Office of the General Counsel (OGC), including Deputy General Counsel Trisha Anderson and a unit chief (OGC Unit Chief) in OGC’s National Security and Cyber Law Branch (NSCLB). Priestap told us that he also discussed the matter with either then Deputy Director (DD) Andrew McCabe or then Executive Assistant Director (EAD) Michael Steinbach, but did not recall discussing the matter with then Director James Comey told the OIG that he did not recall being briefed on the FFG information until after the Crossfire Hurricane investigation was opened, and that he was not involved in the decision to open the case. McCabe said that although he did not specifically recall meeting with Comey immediately after the FFG information was received, it was “the kind of thing that would have been brought to Director Comey’s attention immediately.” McCabe’s contemporaneous notes reflect that the FFG information, Carter Page, and Manafort, were discussed on July 29, after a regularly scheduled morning meeting of senior FBI leadership with the Director. Although McCabe told us he did not have an independent recollection of this discussion, he told us that, based upon his notes, this discussion likely included the Director. McCabe’s notes reflect only the topic of the discussion and not the substance of what was discussed. McCabe told us that he recalled discussing the FFG information with Priestap, Strzok, then Special Counsel to the Deputy Director Lisa Page, and Comey, sometime before Crossfire Hurricane was opened, and he agreed with opening a counterintelligence investigation based on the FFG information. He told us the decision to open the case was unanimous.

McCabe said the FBI viewed the FFG information in the context of Russian attempts to interfere with the 2016 U.S. elections in the years and months prior, as well as the FBI’s ongoing investigation into the DNC hack by a Russian Intelligence Service (RIS). He also said that when the FBI received the FFG information it was a “tipping point” in terms of opening a counterintelligence investigation regarding Russia’s attempts to influence and interfere with the 2016 U.S. elections because not only was there information that Russia was targeting U.S. political institutions, but now the FBI had received an allegation from a trusted partner that there had been some sort of contact between the Russians and the Trump campaign. McCabe said that he did not recall any discussion about whether the FFG information constituted sufficient predication for opening a Full Investigation, as opposed to a Preliminary Investigation, but said that his belief at the time, based on his experience, was that the FFG information was adequate predication. 167

According to Priestap, he authorized opening the Crossfire Hurricane counterintelligence investigation on July 31, 2016, based upon these discussions. He told us that the FFG information was provided by a trusted source-the FFG–and he therefore felt it “wise to open an investigation to look into” whether someone associated with the Trump campaign may have accepted the reported offer from the Russians. Priestap also told us that the combination of the FFG information and the FBI’s ongoing cyber intrusion investigation of the DNC hacks created a counterintelligence concern that the FBI was “obligated” to investigate. Priestap said that he did not recall any disagreement about the decision to open Crossfire Hurricane, and told us that he was not pressured to open the case.

It includes a discussion explaining why FBI decided against defensive briefings — a key complaint from Republicans. Here’s the explanation Bill Priestap gave.

While the Counterintelligence Division does regularly provide defensive briefings to U.S. government officials or possible soon to be officials, in my experience, we do this when there is no indication, whatsoever, that the person to whom we would brief could be working with the relevant foreign adversary. In other words, we provide defensive briefings when we obtain information indicating a foreign adversary is trying or will try to influence a specific U.S. person, and when there is no indication that the specific U.S. person could be working with the adversary. In regard to the information the [FFG] provided us, we had no indication as to which person in the Trump campaign allegedly received the offer from the Russians. There was no specific U.S. person identified. We also had no indication, whatsoever, that the person affiliated with the Trump campaign had rejected the alleged offer from the Russians. In fact, the information we received indicated that Papadopoulos told the [FFG] he felt confident Mr. Trump would win the election, and Papadopoulos commented that the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign. While Papadopoulos didn’t say where the Trump team had received the “material,” one could reasonably infer that some of the material might have come from the Russians. Had we provided a defensive briefing to someone on the Trump campaign, we would have alerted the campaign to what we were looking into, and, if someone on the campaign was engaged with the Russians, he/she would very likely change his/her tactics and/or otherwise seek to cover-up his/her activities, thereby preventing us from finding the truth. On the other hand, if no one on the Trump campaign was working with the Russians, an investigation could prove that. Because the possibility existed that someone on the Trump campaign could have taken the Russians up on their offer, I thought it wise to open an investigation to look into the situation.

It even explained how, by its read, the investigation met the terms of the DIOG for a Full Investigation.

Under Section 11.B.3 of the AG Guidelines and Section 7 of the DIOG, the FBI may open a Full Investigation if there is an “articulable factual basis” that reasonably indicates one of the following circumstances exists:

  • An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity;
  • An individual, group, organization, entity, information, property, or activity is or may be a target of attack, victimization, acquisition, infiltration, or recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information that would help to protect against such activity or threat; or
  • The investigation may obtain foreign intelligence that is responsive to a requirement that the FBI collect positive foreign intelligence-i.e., information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons, or international terrorists.

The DIOG provides examples of information that is sufficient to initiate a Full Investigation, including corroborated information from an intelligence agency stating that an individual is a member of a terrorist group, or a threat to a specific individual or group made on a blog combined with additional information connecting the blogger to a known terrorist group. 45 A Full Investigation may be opened if there is an “articulable factual basis” of possible criminal or national threat activity. When opening a Full Investigation, an FBI employee must certify that an authorized purpose and adequate predication exist; that the investigation is not based solely on the exercise of First Amendment rights or certain characteristics of the subject, such as race, religion, national origin, or ethnicity; and that the investigation is an appropriate use of personnel and financial resources. The factual predication must be documented in an electronic communication (EC) or other form, and the case initiation must be approved by the relevant FBI personnel, which, in most instances, can be a Supervisory Special Agent (SSA) in a field office or at Headquarters. As described in more detail below, if an investigation is designated as a Sensitive Investigative Matter, that designation must appear in the caption or heading of the opening EC, and special approval requirements apply.

Importantly, per Michael Horowitz’s own description of the dispute, this is the topic about which John Durham disagreed. Durham reportedly believed it should have been opened as a Preliminary Investigation — but that would not have changed the investigative techniques available (and there was already a Full Investigation into Carter Page and Paul Manafort).

After first making the same error that Durham did in the Kevin Clinesmith, eleven days after publishing the report, DOJ IG corrected it to note the full implication of Crossfire Hurricane being opened as a counterintelligence investigation, implicating both FARA and 18 USC 951 Foreign Agent charges.

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

And it provided this short description of why Strzok opened the investigation.

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

Finally, the IG Report provides a description of how the FBI came to open investigations against Trump’s four flunkies, Carter Page, George Papadopoulos, Paul Manafort, and — after a few days — Mike Flynn (though in the process, repeats but did not correct the error of calling this a FARA case).

Strzok, the Intel Section Chief, the Supervisory Intelligence Analyst (Supervisory Intel Analyst), and Case Agent 2 told the OIG that, based on this information, the initial investigative objective of Crossfire Hurricane was to determine which individuals associated with the Trump campaign may have been in a position to have received the alleged offer of assistance from Russia.

After conducting preliminary open source and FBI database inquiries, intelligence analysts on the Crossfire Hurricane team identified three individuals–Carter Page, Paul Manafort, and Michael Flynn–associated with the Trump campaign with either ties to Russia or a history of travel to Russia. On August 10, 2016, the team opened separate counterintelligence FARA cases on Carter Page, Manafort, and Papadopoulos, under code names assigned by the FBI. On August 16, 2016, a counterintelligence FARA case was opened on Flynn under a code name assigned by the FBI. The opening ECs for all four investigations were drafted by either of the two Special Agents assigned to serve as the Case Agents for the investigation (Case Agent 1 or Case Agent 2) and were approved by Strzok, as required by the DIOG. 178 Each case was designated a SIM because the individual subjects were believed to be “prominent in a domestic political campaign. “179

Obviously, the extended account of how the umbrella investigation and individual targeted ones got opened accounts for Strzok’s testimony, but usually relies on someone else where available. That may be because Horowitz walked into this report with a key goal of assessing whether Strzok took any step arising from political bias, and while he concluded that Strzok could not have taken any act based on bias, he ultimately did not conclude one way or another whether he believed Strzok let his hatred for Trump bias his decisions.

But at first, the account made errors about what FBI was really investigating. And even in the longer discussions about how FBI came to predicate the four individual investigations (which follow the cited passage), it doesn’t really explain how FBI decided to go from the umbrella investigation to individualized targets.

Strzok, UNSUB, and his packed bags

So Strzok’s book, as delayed as I think the publication of it is, is in substantial part the first time he gets to explain these early activities.

In a long discussion about how the case got opened, Strzok talks about the difficulties of a counterintelligence investigation, particularly one where you don’t know whom your subject is, as was the case here.

Another reason for secrecy in the FBI’s counterintelligence work is the fundamentally clandestine nature of what it is investigating. Like my work on the illegals in Boston, counterintelligence work frequently has nothing to do with criminal behavior. An espionage investigation, as the Bureau defines it, involves an alleged violation of law. But pure counterintelligence work is often removed from proving that a crime took place and identifying the perpetrator. It’s gaining an understanding of what a foreign intelligence service is doing, who it targets, the methods it uses, and what the national security implications are.

Making those cases even more complicated, agents often don’t even know the subject of a counterintelligence investigation. They have a term for that: an unknown subject, or UNSUB, which they use when an activity is known but the specific person conducting that activity is not — for instance, when they are aware that Russia is working to undermine our electoral system in concert with a presidential campaign but don’t know exactly who at that campaign Russia might be coordinating with or how many people might be involved.

To understand the challenges of an UNSUB case, consider the following three hypothetical scenarios. In one, a Russian source tells his American handler that, while out drinking at an SVR reunion, he learned that a colleague had just been promoted after a breakthrough recruitment of an American intelligence officer in Bangkok. We don’t know the identity of the recruited American — he or she is an UNSUB. A second scenario: a man and a woman out for a morning run in Washington see a figure toss a package over the fence of the Russian embassy and speed off in a four-door maroon sedan. An UNSUB.

Or consider this third scenario: a young foreign policy adviser to an American presidential campaign boasts to one of our allies that the Russians have offered to help his candidate by releasing damaging information about that candidate’s chief political rival. Who actually received the offer of assistance from the Russians? An UNSUB.

The typical approach to investigating UNSUB cases is to open a case into the broad allegation, an umbrella investigation that encompasses everything the FBI knows. The key to UNSUB investigations is to first build a reliable matrix of every element known about the allegation and then identify the universe of individuals who could fit that matrix. That may sound cut-and-dried, but make no mistake: while the methodology is straightforward, it’s rarely easy to identify the UNSUB.

[snip]

The FFG information about Papadopoulos presented us with a text- book UNSUB case. Who received the alleged offer of assistance from the Russians? Was it Papadopoulos? Perhaps, but not necessarily. We didn’t know about his contacts with Mifsud at the time — all we knew was that he had told the allied government that the Russians had dirt on Clinton and Obama and that they wanted to release it in a way that would help Trump.

So how did we determine who else needed to go into our matrix? And what did we know about the various sources of the information? Papadopoulos had allegedly stated it, but it was relayed by a third party. What did we know about both of them: their motivations, for instance, or the quality of their memories? What were the other ways we could determine whether the allegation was true?

And if it was true, how did we get to the bottom of it?

Having laid out the challenge that lay behind the four predications, Strzok then described the circumstances of the trip (with a big gaping hole in the discussion of meeting with the Australians).

He describes how he went home over the weekend, not knowing whether they would leave immediately or after the weekend. That’s why, he explained, he wrote the EC himself, specifically to have one in place before they flew to London.

I quickly briefed him on the facts and asked him to get a bag ready to go to Europe to do some interviews.

When are we leaving? he asked me.

No idea, I told him. Probably not until Monday, but I want to be ready to go tomorrow.

How long are we going for? he asked.

I don’t know, I admitted. A few days at most. I wasn’t sure if we would get to yes with our counterparts, but our sitting there in Europe would make it harder for them to say no.

I had work to do before we could depart. When I left the office on Friday, I grabbed my assigned take-home laptop, configured to operate at a classified level on our secure network.

[snip]

Sitting in my home office, I opened the work laptop and powered it up. The laptops were balky and wildly overpriced, requiring an arcane multi-step process to connect. They constantly dropped their secure connections. Throughout the D.C. suburbs, FBI agents flew into rages when the laptops quit cold while they were trying to work at home. Chinese or Russian intelligence would have been hard-pressed to develop a more infuriating product. Nevertheless, they let you work away from the office.

After logging in, I pulled up a browser and launched Sentinel, our electronic case file system. Selecting the macro for opening an investigation, I filled in the various fields until I reached the blank box for the case name.

They didn’t leave over the weekend, but they did leave on Monday. When they came back, having heard Alexander Downer’s side of the story (probably along with his aide, with whom Papadopoulos met and drank more with on multiple occasions, but that’s not in the book), it seemed a more credible tip.

And in the interim, analysts had found four possible candidates to be the UNSUB.

I was surprised by the amount of information the analysts had already found. Usually, because initial briefings take place at the very beginning of an investigation, they are short on facts and long on conjecture about all the various avenues we might pursue for information. In this case there were already a lot of facts, and several individuals—not just one—had already cropped up in other cases, in other intelligence collection, in other surveillance activity.
Although I was just hours back from Europe, what I saw was deeply dis- concerting. Though we were in the earliest stages of the investigation, our first examination of intelligence had revealed a wide breadth and volume of connections between the Trump campaign and Russia. It was as if we had gone to search for a few rocks only to find ourselves in a field of boulders.

Within a week the team had highlighted several people who stood out as potentially matching the UNSUB who had received the Russian offer of assistance. As we developed information, each person went into the UNSUB matrix, with tick marks next to the matching descriptors.

All this description is surely not going to satisfy Republicans. Nor was it under oath or to law enforcement officers, as Strzok’s other testimony was.

But it’s a compelling description.

It also adds perspective onto the treatment of Mike Flynn. Until they learned about Papadopoulos’ ties with Joseph Mifsud, they still had no clues about who got the tip. Mike Flynn had been eliminated for lack of evidence — but then he picked up a phone and provided the FBI a whole lot of evidence that he could be the guy.

And unless you believe that receiving a credible tip from a close ally that someone is tampering in an election still three months away doesn’t merit urgency, then the other steps all make sense.

I have no idea if that’s why Catherine Herridge got sent to whip out her high-gaslight again. I have no idea whether Nora Dannehy read these excerpts, and in the process realized both the significance of the error in treating this as a FARA investigation, but also how that changes predication into individual subjects.

But there have long been answers to some of the most basic questions that Republicans have returned to over and over again. It’s just that few of the interim investigations ever asked to get those answers. And the one that did — the DOJ IG Report — never even understood the crimes investigated until after the report got published.

Mike Flynn Prosecutor Jocelyn Ballantine Tries to Square DOJ’s Crooked Circle

DOJ and Mike Flynn responded to Amicus John Gleeson’s filing arguing that Judge Emmet Sullivan should reject DOJ’s motion to dismiss Flynn’s prosecution today.

Sidney Powell claims Bill Priestap’s attempt to shield Flynn is misconduct

Sidney Powell’s brief was like all her other ones, legally a shit-show, at times making false claims, at others rolling out a word salad designed to impress the frothy right. It did not substantively address Gleeson’s filing but instead mostly repeated the arguments made in support of the petition for mandamus.

Two details are important, however. First, Powell repeatedly argued that both the FBI and DOJ’s prosecutors engaged in misconduct, in the latter case arguing the prosecutors withheld information covered by Brady.

Given the substantial briefing and documentation by the Justice Department of the reasons for dismissal here, based primarily on the Government’s proper recognition that it should correct its own misconduct which included suppression of extraordinary exculpatory evidence, this court has no further role to play than to grant dismissal forthwith. Smith, 55 F.3d at 159; United States v. Hamm, 659 F.2d 624, 631 (5th Cir. 1981).

[snip]

In its ninety-two-page decision denying General Flynn all exculpatory Brady material he requested, the court distinguished this case from United States v. Stevens, Criminal Action No. 08-231 (EGS) (D.D.C Apr. 1, 2009), because in Stevens, the government moved to dismiss the case upon admitting misconduct in the suppression of Brady evidence. ECF No. 144 at 91. That distinction is eviscerated with the Government’s Motion to Dismiss here. Moreover, in Stevens, the government filed a mere two-page motion to dismiss. Ex. 4. Here, the Government has moved to dismiss in a hundred-page submission that includes 86 pages of new documentation that completely destroys the premise for any criminal charges. This evidence was long sought by General Flynn but withheld by the prior prosecution team and its investigators and wrongly denied to him by this court.

[snip]

Amicus elides the reality of the egregious government misconduct of the FBI Agents—particularly that of Comey, McCabe, Strzok, Page, Pientka, Priestap and others who met repeatedly to pursue the targeted “take-out” of General Flynn for their political reasons and those of the “entirety lame duck usic.”

That last reference to the “entirely lame duck usic” refers to some text messages involving Strzok which, she claims, “the defense recently found that were never produced to it by the Government,” which given how the government provided the text messages probably means only that she didn’t look before. The text messages show Strzok describing a conversation with Bill Priestap about withholding the full transcripts of Flynn’s calls with Sergey Kislyak from the Obama White House to avoid having Obama dead-enders politicizing them — precisely the opposite of what her entire argument is premised on!!!.

So Powell’s new smoking gun–the thing she’s using to rile up the frothers–is proof that Strzok tried really hard to protect Flynn from precisely what she claims did him in, a politicized prosecution led by Obama people. In doing so, she presents evidence (and not for the first time) that Strzok tried really hard to protect Flynn.

Jocelyn Ballantine invents entirely new reasons why DOJ is moving to dismiss

The government’s response is the least-shitty argument DOJ has made in defense of abandoning Flynn’s prosecution, yet it still presents new problems for their case.

The government response was signed by a different team of people than have signed anything submitted thus far. Whereas only Timothy Shea — since promoted to be acting DEA Administrator — signed the initial motion to dismiss, and a team including five people from the Solicitor General’s office, including outgoing Solicitor General Noel Francisco himself, outgoing Criminal Division head Brian Benczkowski, in addition to people from the DC US Attorney’s office and career National Security Division prosecutor Jocelyn Ballantine signed the response on the DC Circuit petition for mandamus, this filing includes only the the latter three:

Whereas the Circuit filing necessarily argued a constitutional issue — the limits of a judge’s authority to deny a motion to dismiss the prosecution, this one argued an admittedly overlapping criminal one, one that makes the third different argument justifying the motion to dismiss. Significantly, this is a defense of the motion to dismiss that (unlike the original one) Jocelyn Ballantine, one of the two prosecutors on the case, was willing to sign.

Along the way, Ballantine presents new reasons to substantiate the claim that DOJ couldn’t convince a jury Flynn was guilty, including describing two things that she now claims weren’t in the notes but were in Flynn’s final 302.

According to the final FD-302, when the agents asked Flynn whether he recalled any conversation with Kislyak in which he encouraged Kislyak not to “escalate the situation” in response to the sanctions, Flynn responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” Doc. 198-7, at 6. According to the FD-302, the agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions; Flynn stated that he did not recall such a conversation. Id. The agents’ handwritten notes do not reflect that question being asked or Flynn’s response. See Doc. 198-13, at 2-8.

The final FD-302 also reports that Flynn incorrectly stated that, in earlier calls with Kislyak, Flynn had not made any request about voting on a UN Resolution in a certain manner or slowing down the vote. Doc. 198-7, at 5. Flynn indicated that the conversation, which took place on a day when he was calling many other countries, was “along the lines of where do you stand[ ] and what’s your position.” Id. The final FD-302 also states that Flynn was asked whether Kislyak described any Russian response to his request and said that Kislyak had not, id., although the agents’ handwritten notes do not reflect Flynn being asked that question or giving that response, see Doc. 198-13, at 2-8.

[snip]

The interview was not recorded and the final FD-302 includes two instances where the agents did not record a critical question and answer in their handwritten notes: (1) that agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions, and Flynn stated that he did not recall such a conversation; and (2) that the agents asked whether Kislyak described any Russian response to his request, and Flynn said that Kislyak had not.

This is actually a claim Sidney Powell has made in the past, though I found notes consistent with those questions here, explicitly so with respect to the sanctions conversation:

[Update: Note that, as I first pointed out, the notes here are reversed; Strzok’s are the ones on the left, Pientka’s are the ones on the right.]

Ballantine herself was on a filing stating that, “The final interview report, just like the agent’s handwritten notes, reflect all of the above material false statements” (though that filing did not address whether Flynn was asked about Russia taking Trump’s stance into account; see especially page 5 for the extended discussion that lacks that). And Judge Sullivan agreed, ruling in December that,

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.”

Ballantine–consistent with her past signed filing–does not contest that some of Flynn’s lies are clearly included in the notes, and so doesn’t contest that the notes clearly show Flynn lying at least twice to prosecutors.

Ballantine also further develops the “new thing” that the motion to dismiss relied on to justify flip-flopping on past DOJ stances (though it is the same “new thing” presented in the Circuit filing): the new developments involving essential participants in Flynn’s prosecution:

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

While this information would definitely make it harder (but in no way impossible, not least because there are witnesses like Mike Pence and KT McFarland to Flynn’s lies) to prove DOJ’s case, as Gleeson pointed out in his brief, DOJ didn’t have to do that — they already have two allocutions of guilt, including one that affirmed Flynn could never again raise such issues! Moreover, all but one of these new “new things” happened before Flynn reallocuted his guilty plea, meaning Ballantine is in no position to argue they justify abandoning the prosecution. Plus, they conflict with the “new things” cited in the Shea motion to dismiss explaining the DOJ flip-flop.

Ballantine creates a case and controversy over whether prosecutorial misconduct occurred

Ballantine presents some things she’s willing to buy off on to argue why DOJ was right to dismiss the prosecution.

But along the way, she contested the central point in Flynn’s argument, that any of this amounted to prosecutorial misconduct.

1 Before Flynn’s 2017 guilty plea, the government provided Flynn with (1) the FBI report for Flynn’s January 24 interview; (2) notification that the DOJ Inspector General, in reviewing allegations regarding actions by the DOJ and FBI in advance of the 2016 election, had identified electronic communications between Strzok and Page that showed political bias that might constitute misconduct; (3) information that Flynn had a sure demeanor and did not give any indicators of deception during the January 24 interview; and (4) information that both of the interviewing agents had the impression at the time that Flynn was not lying or did not think he was lying.

The government subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Doc. 20, at 2. The majority of those materials, over 21,000 pages of the government’s production, pertain to Flynn’s statements in his March 7, 2017 FARA filing, for which the government agreed not to prosecute him as part of the plea agreement. The remainder are disclosures related to Flynn’s January 24, 2017, statements to the FBI, and his many debriefings with the SCO.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. [my emphasis]

Ballantine directly contradicts the suggestion made in the Shea motion to dismiss, that any of the documents turned over were new or Brady material; they’ve been demoted to “relevant to.” More importantly, she says that Flynn is wrong to claim either that DOJ said there was misconduct (it did not) or that any misconduct occurred.

Now there’s a case and controversy between DOJ and Flynn. DOJ says no DOJ abuse occurred, in this filing quite explicitly. Flynn says it’s why his prosecution must be dismissed.

While it’s not central to the issue before John Gleeson, it is something he can exploit.

Ballantine dances around DOJ’s shitty materiality claims

Particularly given how Ballantine dances around the main reason DOJ claims it moved to dismiss Flynn’s prosecution, because his lies weren’t material.

This motion was better argued all around than the Main DOJ ones, including the one bearing the Solicitor General’s name. And in numerous places, it presents actual nuance and complexity. One key place it does so is where it admits that DOJ has some motions still pending before Sullivan.

Flynn subsequently retained new counsel. Doc. 88, at 2. He then filed a Brady motion, which the Court denied. Doc. 144, at 2-3. In January 2020, Flynn moved to withdraw his guilty plea, asserting ineffective assistance of prior counsel. Docs. 151, 154, 160. The government has not yet responded to this motion. Flynn also filed a motion to dismiss the case for government misconduct. Doc. 162. In February 2020, the government opposed Flynn’s motion to dismiss. Doc. 169. Flynn repeatedly supplemented the motion after receiving the government’s response, Docs. 181, 188, 189; the government has not submitted a further filing responding to the additional allegations.

On May 7, 2020, while those motions remained pending, the government moved to dismiss the case under Federal Rule of Criminal Procedure 48(a). The government first explained a court’s “narrow” role in addressing a Rule 48(a) motion. Doc. 198, at 10 (quoting United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016)). The government then set out its reasons for the dismissal, explaining why it had concluded that continued prosecution was not warranted. Id. at 12-20; see pp. 25-32, infra. Flynn consented to the motion. Doc. 202. [my emphasis]

Already this passage presents problems, because Ballantine doesn’t explain why DOJ opposed Flynn’s motion to dismiss in February but does not now, even though none of her “new things” were new in February.

But she doesn’t mention the still-pending DOJ sentencing memorandum, submitted after all the “new things” that Ballantine laid out were already known. That sentencing memorandum not only suggested Flynn should do prison time, but it also argued not only that Flynn’s lies were material, but that Judge Sullivan should consider Flynn’s material FARA lies in his sentencing.

On December 1, 2017, the defendant entered a plea of guilty to a single count of “willfully and knowingly” making material false statements to the Federal Bureau of Investigation (“FBI”) regarding his contacts with the Government of Russia’s Ambassador to the United States (“Russian Ambassador”) during an interview with the FBI on January 24, 2017 (“January 24 interview”), in violation of 18 U.S.C. § 1001(a)(2). See Information, United States v. Flynn, No. 17-cr-232 (D.D.C. Nov. 30, 2017) (Doc. 1); Statement of Offense at ¶¶ 3-4, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4) (“SOF”). In addition, at the time of his plea, the defendant admitted making other material false statements and omissions in multiple documents that he filed on March 7, 2017, with the Department of Justice (“DOJ”) pursuant to the Foreign Agents Registration Act (“FARA”), which pertained to his work for the principal benefit of the Government of Turkey. See SOF at ¶ 5. These additional material false statements are relevant conduct that the Court can and should consider in determining where within the Guidelines range to sentence the defendant.

[snip]

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

[snip]

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

The defendant now claims that his false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambush-interview” to trap him into making false statements, see Reply at 1. The Circuit Court recently stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019 WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further undermined by the defendant’s efforts over the last four months to have the Court dismiss the case. See Reply at 32.

[snip]

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime.

[snip]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

After the most recent “new thing” Ballantine cited (the DOJ IG Report), in a motion that is still pending before Sullivan, she argued that these lies were material. She doesn’t admit it’s still pending or in any other way deal with it. But Ballantine is making an argument here that conflicts with an argument she signed off on (and spent a great deal of time getting approved by all levels of DOJ) in January.

That presents problems for her claim that the motion to dismiss is the “authoritative position of the Executive.”

The Rule 48(a) motion here represents the authoritative position of the Executive Branch,

A still-pending sentencing memo she signed says Flynn’s lies were material, which conflicts with the pending motion to dismiss. Both are the still-authoritative position of the Executive.

She makes things worse by adopting only one part of Shea’s argument about materiality (though this is consistent with the DC Circuit brief). Shea argued the lies were not material, at all.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.

[snip]

The particular circumstances of this case militate in favor of terminating the proceedings: Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation. Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt, the Government now moves to dismiss the criminal information under Rule 48(a).

[snip]

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI.

[snip]

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

[snip]

Even if he told the truth, Mr. Flynn’s statements could not have conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose. See United States v. Mancuso, 485 F.2d 275, 281 (2d Cir. 1973) (“Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation.”); cf. United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (noting that a lie can be material absent an existing investigation so long as it might “influenc[e] the possibility that an investigation might commence.”). Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

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

Shea further argued that Sullivan’s past judgment that these lies were material came before DOJ’s view on the case changed.

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

Ballatine does parrot Shea’s claim that “additional information” has emerged since Sullivan ruled.

In any event, additional information that was not before the Court emerged in the months since the decision that significantly alters the analysis.

The problem, here, is that in her filing, that’s as much a false claim as Shea’s claim to have found “new things” were. Ballantine’s “new things” was all known to the government well before Sullivan ruled.

As to materiality itself, the only part of Shea’s argument about materiality that Ballantine adopts pertains to whether she could prove it.

The government expressed concern specifically about its ability to prove materiality.

[snip]

The government’s Rule 48(a) motion accordingly explained that it doubted whether, in light of those aspects of the record, it should attempt to prove to a jury that the information was objectively material.

Which, as Gleeson has pointed out, doesn’t matter given Flynn’s past guilty plea.

Perhaps because of that, Ballantine adopts a different approach than Shea did in arguing that Sullivan’s past ruling didn’t matter. She argues that only a jury can decide materiality.

But as the Supreme Court has held, determining whether information is material is an essential element of the crime that must be determined by a jury, and cannot be determined as a matter of law by a court. United States v. Gaudin, 515 U.S. 506, 511- 512, 522-523 (1995). Indeed, the materiality inquiry is “peculiarly one for the trier of fact” because it requires “delicate assessments of the inferences a reasonable decision-maker would draw from a given set of facts and the significance of those inferences to him.” Id. at 512 (internal quotation marks and brackets omitted). For that reason, the Court’s determination could not resolve the government’s concerns about its materiality case at trial.

But then she imagines what the jury might think about the materiality of Flynn’s lies that — much of the subsequent developments make clear — actually did affect the investigation into him.

Amicus makes much of the fact that a defendant’s false statements can be material even when the investigators are not deceived by them, accusing the government of asking for “the suspension of settled law for this case, but not for any others.” Gleeson Br. 46-47 (citing United States v. Safavian, 649 F.3d 688, 691-692 (D.C. Cir. 2011) (per curiam)). Contrary to amicus’s assertion (at 46-47), however, that is entirely consistent with the government’s analysis. In Safavian, the D.C. Circuit rejected a defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them.” 649 F.3d at 691. As the government recognized in its motion to dismiss, the fact that the FBI knew at the time it interviewed Flynn the actual contents of his conversations with Kislyak does not render them immaterial. See Doc. 198, at 17 (citing Safavian, 649 F.3d 688 at 691-692). Rather, the fact that the FBI knew the content of the conversations is relevant because it would allow a jury to assess the significance the FBI in fact attached to that truthful information when the FBI learned it; and, absent reason to think that the FBI’s reaction was objectively unreasonable, that would inform the jury’s assessment of the significance a reasonable decision-maker would attach to the information.

Shea’s argument was — as Gleeson made clear — legally indefensible. Ballantine’s is legally more defensible. Except that she has already argued more persuasively against herself, in a still-pending filing that is, like the motion to dismiss, the authoritative position of the Executive Branch.

Ballantine’s argument here is more persuasive then — though inconsistent with — Shea’s. Except that she’s arguing with a still more persuasive Ballantine memorandum that remains before Sullivan.

Not only is DOJ arguing with DOJ, but Jocelyn Ballantine is arguing with Jocelyn Ballantine

With DOJ’s motion to dismiss, Bill Barr’s DOJ argued against what Bill Barr’s DOJ argued in a still pending sentencing memo submitted in January. DOJ’s response in the DC Circuit mandamus petition argued against Bill Barr’s admission that Emmet Sullivan has a say in whether to dismiss the case or not. Now, Jocelyn Ballantine is arguing that DOJ’s past (but still-pending) statements about materiality conflict with its current statements.

The DC Circuit filing and this one conflict with Shea about what the “new things” are justifying such flip-flops.

But crazier still, Ballantine argues that these conflicting statements are the authoritative view, singular, of the Executive.

Ballantine has laid out a case and controversy with Sullivan here — whether her own conduct amounted to misconduct. Sullivan’s amicus, John Gleeson, may well be able to use that to argue that the many conflicting statements from DOJ make it clear there is no authoritative view from the Executive, because it can’t agree with itself — its prosecutor can’t even agree with herself — on a week to week basis.

And if there is no one authoritative authoritative view of the Executive, Sullivan will have a much easier time arguing all this overcomes any presumption of regularity.

George Papadopoulos Tied the Utility of Russian Dirt to the Campaign’s Plan to Use Dirt to Win

Judicial Watch has once again liberated documents from DOJ that undermine their narrative about the Russian investigation (and, in this case, provides yet another reason to question the fidelity of the DOJ IG Report on Carter Page).

In the DOJ IG Report, it provides a description of the tip Australia provided to State which got passed on to the FBI. The most complete description of that (pages 51 to 52) introduces a block quote describing the tip by explaining the Australian tip “stated, in part, that Papadopoulos”

suggested the Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs. Clinton (and President Obama). It was unclear whether he or the Russians were referring to material acquired publicly of [sic] through other means. It was also unclear how Mr. Trump’s team reacted to the offer. We note the Trump team’s reaction could, in the end, have little bearing of what Russia decides to do, with or without Mr. Trump’s cooperation.

The IG Report never quotes what the other part of the memo is, but it does quote a long excerpt from a Bill Priestap transcript describing that Papadopoulos expressed confidence (in April!) that Trump would win, in part because of how much dirt the campaign had on Hillary.

In fact, the information we received indicated that Papadopoulos told the [FFG] he felt confident Mr. Trump would win the election, and Papadopoulos commented that the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign.

Priestap understood that the campaign planned to win by using the dirt it had on Hillary Clinton.

Judicial Watch just liberated the FBI document memorializing on the tip. It too, redacts that other part of what Australia passed on (bizarrely, under source and law enforcement exemptions, not privacy, which seem like easily challenged exemptions).

But laid out like this (particularly given the length of the redaction as compared to Priestap’s description), it makes the context more clear.

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

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

It is, perhaps, a subtle thing. But in context as the FBI received it, Papadopoulos tied Russia anonymously dropping dirt on Hillary to the centrality of dirt on Hillary in the Trump campaign’s plan to win. It is true that the tip does not describe Papadopoulos confirming that the campaign would use the Russian dirt or had entered into a relationship to do so.

But particularly given the way Roger Stone claimed WikiLeaks was going to release Clinton Foundation documents while he was boasting of ties to WikiLeaks — that is, the dirt Trump had treated as the Holy Grail all along — the way Papadopoulos tied anonymously released damaging information from Russia to the utility of using dirt to win the election explains the FBI reaction.

Papadopoulos didn’t just raise Russia offering dirt to help win. It raised it in the context of the Trump plan to win by using dirt.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 16: Oral arguments

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

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

Billy Barr Put a Firearms Prosecutor in Charge of Reviewing a Counterintelligence Investigation

The NYT published a story yesterday that will be very handy for the amicus that Emmet Sullivan appointed in the Mike Flynn case, John Gleeson. It describes two pieces of evidence that St. Louis US Attorney Jeffrey Jensen (whom Barr ordered to conduct a review of Flynn’s prosecution) and Timothy Shea (whose name was on the motion to dismiss asking Sullivan to dismiss the case) failed to account for in their motion.

Most notably, prosecutors interviewed Bill Priestap two days before the motion to dismiss, on May 5. Priestap’s notes have been portrayed by Flynn’s team as proof that the FBI tried to entrap Flynn. In the interview, Priestap disputed the interpretation of the notes that had already been released a week earlier.

That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case. He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.

[snip]

Mr. Jensen and Ms. Ballantine, herself a veteran prosecutor, interviewed Mr. Priestap along with another prosecutor, Sayler Fleming, and an F.B.I. agent from St. Louis who was there to memorialize the encounter.

[snip]

Those notes reflected Mr. Priestap’s own thoughts before meeting with F.B.I. leadership to discuss how to question Mr. Flynn, the people said. A footnote in Mr. Shea’s motion included a reference to Mr. Priestap’s ruminations. The motion described them as “talking points.”

The notes also showed that the F.B.I. softened its interview strategy with Mr. Flynn. Officials decided that agents would be allowed to read back portions of the highly classified phone call transcripts to refresh Mr. Flynn’s memory. F.B.I. investigators felt at the time it was important to figure out whether Mr. Flynn would tell the truth in an interview.

The article also reveals the existence of an FBI email, dated April 23, that reflects the Bureau’s view that Prietap’s notes were not Brady material, but gave them to Flynn’s team only because they were not sensitive.

Eventually the F.B.I. agreed to release the documents because they contained no classified or sensitive material, even though they believed they were not required to share them with the defense, according to an email from lawyers in Mr. Boente’s office on April 23.

Finally, the article describes that Jensen started drafting the motion to dismiss “by the beginning of May,” which would be before interviewing Priestap (the FBI’s drafting of the Hillary declination before her interview is regarded as a key sin among the frothy right).

By the beginning of May, Mr. Jensen recommended to Mr. Barr that the charge be dropped, and the team began to draft the motion to dismiss it.

[snip]

As the lawyers digested the interview with Mr. Priestap, some prosecutors expressed concern that they were moving too fast. But other officials pointed out that in less than a week the department was due to respond to Mr. Flynn’s motion to dismiss the case, and argued against proceeding in that matter if they were about to drop the entire case.

So Jensen’s crack review of the propriety of the Flynn prosecution first turned over the document to Flynn, then started drafting the motion to dismiss, and only then decided to ask Priestap about what the notes mean. It will be interesting to discover whether whoever drafted the motion to dismiss had decided the notes were “talking points” before the Priestap interview and just ignored the interview entrely.

The NYT story reveals another detail, however: who, from Jensen’s team, is conducting this review, a St. Louis prosecutor named Sayler Fleming. Fleming’s day job seems to be entirely focused on prosecuting felon possession of firearms cases, along with typical related crimes, car-jacking and drug trafficking. Because of recent Supreme Court decision, that means he or she has fielded a bunch of appeals in recent months.

But nothing in PACER suggests he or she has any experience with counterintelligence at all, or even national security cases.

And that may explain one of the more egregious errors in the motion to dismiss. The motion admits that the case against Flynn, which was never closed, was predicated on both 18 USC 951 and FARA, two different kinds of Foreign Agent laws. But its analysis of the investigative purpose of the January 24, 2017 interview, claims that the FBI was only investigating the Logan Act.

Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act, 18 U.S.C. § 953. See Ex. 3 at 2-3; Ex. 7 at 1-2; Ex. 8 at 1-5, FBI Emails RE: Logan Act Jan. 4, 2017. Yet discussions with the Department of Justice resulted in the general view that the Logan Act would be difficult to prosecute. Ex. 3 at 2-3; Ex. 4 at 1-2, FBI FD-302, Interview of Sally Yates, Aug. 15, 2017 (Sept. 7, 2017); Ex. 5 at 9. The FBI never opened an independent FBI criminal investigation.

The motion adopts expressive language to suggest the investigative team vacillated between whether there was a criminal investigation or not — in the process, falsely suggesting an interview would only be appropriate if there were a criminal investigation.

Deputy Attorney General Yates and another senior DOJ official became “frustrated” when Director Comey’s justifications for withholding the information from the Trump administration repeatedly “morphed,” vacillating from the potential compromise of a “counterintelligence” investigation to the protection of a purported “criminal” investigation. Ex. 3 at 5; compare Ex. 5 at 5 (“[W]e had an open counterintelligence investigation on Mr. Flynn”), with Ex. 4 at 4 (“Comey had said something to the effect of there being an ‘ongoing criminal investigation’”).

It then goes on to suggest that because records searches had yielded nothing in the 18 USC 951 investigation, a call showing Flynn intervened to undermine official US policy with no hint that he did so on Trump’s orders would not by itself be relevant to a Foreign Agent investigation.

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI. Indeed, the FBI itself had recognized that it lacked sufficient basis to sustain its initial counterintelligence investigation by seeking to close that very investigation without even an interview of Mr. Flynn. See Ex. 1 at 4. Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3.

With its counterintelligence investigation no longer justifiably predicated, the communications between Mr. Flynn and Mr. Kislyak—the FBI’s sole basis for resurrecting the investigation on January 4, 2017—did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation. The calls were entirely appropriate on their face.

When the motion gets around to arguing — relying on the transcripts but not providing them — that Flynn’s call was totally cool, it assessed that question in terms of FARA (undisclosed lobbying) not 18 USC 951.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2. They provided no factual basis for positing that Mr. Flynn had violated FARA.

The motion then imagines that counterintelligence investigators would only interview someone about a transcribed call to learn his recollection of what had been said, again suggesting the Logan Act would be the only reason to interview Flynn.

With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime.

These moves in the motion to dismiss were always obviously problematic. The exhibits submitted with the motion, including Priestap’s own notes, make it crystal clear that the purpose of the interview was not primarily to investigate the Logan Act, but to determine whether Flynn was hiding a clandestine relationship with Russia, a question primarily implicating 18 USC 951, and in no way limited to or even primarily about FARA, as one claim in this motion suggests.

As such, the claims made about the counterintelligence investigation affirmatively misrepresent even the exhibits submitted in support of the filing. Plus, as noted, the motion makes claims about the transcripts, doesn’t provide them, but the exhibits provide abundant evidence to suggest those claims are wrong (the op-ed Gleeson wrote last week laying out the addition steps Sullivan might take in response to the motion to dismiss specifically suggests Sullivan order the release of the transcripts). Nor does the motion account for the fact that to this day the public evidence claims (improbably) that Flynn was acting on his own when he made that call, which by itself would support a counterintelligence investigation.

In other words, the motion to dismiss makes obvious errors of fact and claims backed by no evidence (and refuted by the evidence present) pertaining to what FBI’s counterintelligence interests would be when the incoming National Security Advisor, seemingly freelancing, called up the country that just attacked us and undermined the official US policy.

One possible explanation for those errors and omissions is that the one career prosecutor Billy Barr put in place to conduct this review is perfectly suited to chasing down felons brandishing guns, but totally inappropriate to assess a counterintelligence investigation.