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The Giglio Brady Head Fake in Sidney Powell’s Latest

I’d like to congratulate Sidney Powell, whose motion to show cause is less batshit than the Brady motion I unpacked here (note, these motions work together, but we only got this most recent one today because it had been submitted under seal under the protective order until the government redacted the names of some FBI Agents).

Powell fancies both motions as demands for Brady material she claims has been withheld in violation of Emmet Sullivan’s standing order that the government produce Brady material even to defendants that, like Flynn, plead guilty. But the key to understanding the motion, in my opinion, comes in the middle of a list of things she demands. She asks not just for Brady material (that is, evidence that is exculpatory to the charges Flynn pled guilty to), but also for any new Giglio information discovered by the government in the last two years.

Brady or Giglio material newly discovered by the government (and by the Inspector General in his separate investigations) in the last two years.

Giglio material is information that would impeach potential witnesses.

To understand the distinction, consider Powell’s complaints about recent discovery she got, which is batshit insane on its face.

To substantiate her claim that the government has violated its Brady obligations, she points to materials Brandon Van Grack had just provided the week before this motion.

In fact, just last week, Mr. Van Grack produced an additional 330 pages that included information that any reasonable attorney would understand as Brady evidence in light of Special Counsel’s investigation and assertions that Mr. Flynn was an undisclosed “agent of Russia” or an “agent of Turkey.”2 That production also shows that Mr. Flynn passed his polygraph test in 2016 and his security clearance was renewed. This was at the same time the FBI seems to have been investigating him under the pretext that he was an “agent of Russia” and/or of Turkey. Interestingly, the new production also shows that James Clapper refused to assist in the investigation for Mr. Flynn’s security clearance, which Mr. Flynn received after a full investigation despite Mr. Clapper’s actions.

She makes several crazy ass claims in this passage. First, she boasts that Flynn was able to pass a polygraph in April 2016 at a time, she claims, that he was under investigation for being an agent of whatever country was offering the highest bid. It’s unclear when the investigation into whether he was a Russian agent started. But the investigation into whether he was a Turkish agent hadn’t started yet because the underlying conduct hadn’t started yet! Moreover, Flynn didn’t plead to being a Russian agent (indeed, the investigation into whether he was compromised by Russia may have been reopened and remain open), so whether that poly reflected about him being so is irrelevant to the charges (and therefore not Brady).

In other words, Powell is claiming that a successful April 2016 polygraph is proof of innocence for lies Flynn told in January 2017 about contacts with Sergey Kislyak in November and December 2016, and lies he told in March 2017 about a relationship with Turkey that began in July 2016 and he was actively hiding in August through November 2016, when he was getting Top Secret briefings with candidate Trump. On its face, it’s a batshit insane claim (which is probably why Sara Carter is running with it).

Oh, and remember, the FBI agents who interviewed Flynn were pretty impressed with his ability to appear convincing while telling what they knew were outright lies. Flynn is (unsurprisingly, for a lifetime intelligence officer) good at lying.

But that’s almost certainly not why Powell is interested in this polygraph (it’s also almost certainly not why she got it, either, but I’ll reserve that explanation for a later time). She’s interested in the poly because it shows that Mike Flynn was able to renew his clearance even though James Clapper, who had fired him, would not recommend he have it renewed. That is, she wants to highlight this as part of an argument that the investigation into Flynn and everyone else was part of a Deep State coup against Trump and his flunkies.

In fact, most of her non-crazy requests (and there are a number of them) fit that narrative too. It’s not about any exculpatory evidence against Flynn — he already got that. It’s about allegedly damning details about the people who investigated him, to include Peter Strzok and James Clapper and Jim Comey and a slew of other people. But that’s Giglio, material that might make these people look bad if they ever had to testify against Flynn, not Brady (and with the exception of Strzok, none would have testified against him, and FBI could have avoided having Strzok testify too).

It actually is an interesting question about the scope of Sullivan’s standing order (though as Van Grack made clear in yesterday’s hearing, Flynn actually got a lot of stuff Powell claims he should have gotten before he pled guilty before he did plead guilty first once and then a second time). And Sullivan may well rule that Flynn should get some of it. But none of that will change that he lied over and over about his behavior while in the employ of Donald Trump.

That’s not the only thing Flynn is doing with this motion (he also seems to be fishing for evidence of selective prosecution based on KT McFarland’s ability to clean up her testimony after Flynn flipped). But it is the central one.

The January 30 Memo Doesn’t Help Flynn Like the Frothy Right Thinks It Does

As I noted, some of the claims Sidney Powell made today to justify her demand for material that really doesn’t help her client got blown up, including by Emmet Sullivan, before the end of the hearing. Others, such as the fact that Michael Flynn passed a polygraph in April 2016 are undisguised horseshit. How does passing a poly exonerate you from committing a bunch of crimes after you pass it?

But I’m particularly interested in Powell’s complaint that they didn’t get a memo, written on January 30, 2017 clearing him of being a paid agent of Russia. It was another thing Sullivan sniffed out as bullshit during the hearing, noting that that Flynn did not plead guilty to being an agent of Russia. “It has to be more than theoretical relevance,” he politely responded.

Nevertheless the frothy right has seized on it like trained seals.

But it helps Flynn even less than the frothy right thinks.

Obviously, as both Brandon Van Grack and Sullivan noted, he didn’t plead guilty to being a Russian agent. He pled to two other things: lying about being a paid agent of Turkey (while getting top secret briefings during the campaign) and lying about trying to undercut the sanctions Obama imposed on Russia for helping Trump get elected.

But there’s one more problem. Over six months after the Russian agent investigation was closed on January 30, 2017, Rod Rosenstein scoped the Mueller investigation to include four allegations against Flynn.

The Acting Attorney General further clarified the scope of the Special Counsel’s investigatory authority in two subsequent memoranda. A memorandum dated August 2, 2017, explained that the Appointment Order had been “worded categorically in order to permit its public release without confirming specific investigations involving specific individuals.” It then confirmed that the Special Counsel had been authorized since his appointment to investigate allegations that three Trump campaign officials-Carter Page, Paul Manafort, and George Papadopoulos- “committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 presidential election.” The memorandum also confirmed the Special Counsel’s authority to investigate certain other matters, including two additional sets of allegations involving Manafort (crimes arising from payments he received from the Ukrainian government and crimes arising from his receipt of loans from a bank whose CEO was then seeking a position in the Trump Administration); allegations that Papadopoulos committed a crime or crimes by acting as an unregistered agent of the Israeli government; and four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump. [my emphasis]

Two of these are presumably the crimes he pled to, the Turkish foreign agent and lying about his conversation with the Russian Ambassador. One might be his willingness to use his position to sell nuclear reactors to Saudi Arabia (lowering US standards on proliferation in the process). The fourth might be his participation in Peter Smith’s efforts to find Hillary’s deleted emails, which included asking Russian hackers for help, but that had only been disclosed at the end of June.

Whatever it is, though, it’s clear there was still plenty for the FBI to investigate long after the “exoneration” in January.

Which may be how the government will respond to Powell’s silly claims — to lay out all the damning information against Flynn.

Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Original Subpoenas in the Mike Flynn FARA Investigation

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

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

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

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

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

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

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

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

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

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

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

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

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

Two Trajectories: Sleazy Influence Peddler Paul Manafort and Foreign Agent Prosecutor Brandon Van Grack

Like many, while I expected TS Ellis to give Paul Manafort a light sentence, I’m shocked by just how light it was.

Ellis gave Manafort 47 months of prison time for crimes that the sentencing guidelines say should start at a 19 year sentence. Even if Amy Berman Jackson gives Manafort the stiffest sentence she can give him — 10 years — and makes it consecutive, he’ll still be facing less than the what sentencing guidelines recommend. Ellis even declined to fine Manafort beyond the $24 million he’ll have to pay in restitution (Zoe Tillman lays out the money issues here).

There are a number of reasons to be outraged by this.

Ellis explicitly suggested that Manafort’s crimes were less serious than similar organized crime that people of color would commit. In the wake of this sentence, any number of people (especially defense attorneys) have pointed to non-violent criminals facing more prison time than Manafort. That said, I agree with those who suggest we should aim to bring those other sentences down in line with what the civilized world imposes, and not instead bump white collar criminals up to the barbaric levels that come out of the drug war.

Ellis gave this sentence even though Manafort expressed no remorse. Ellis commented that “I was surprised that I did not hear you express regret for engaging in wrongful conduct. In other words, you didn’t say, ‘I really, really regret not doing what the law requires,'” but nevertheless sentenced him as if he had.

Perhaps most infuriating were the backflips Ellis did to spin Paul Manafort as a good man. He emphasized that Manafort was “not before the court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election,” which is true; but Ellis received the breach determination materials showing that at a time when Manafort was purportedly cooperating, he instead lied about sharing polling data with a suspected Russian asset while discussing a Ukrainian peace deal that he knew amounted to sanctions relief, a quid pro quo. Because those materials go to the issue of whether Manafort took responsibility and was a risk for recidivism, they were fair game for consideration, but Ellis didn’t consider them.

Indeed, because of time served, Ellis effectively sentenced Manafort to an equivalent sentence that Michael Cohen faces having committed an order of magnitude less financial fraud, pled guilty, and provided limited cooperation to the government. Effectively, then, Ellis has sanctioned Manafort’s successful effort to avoid cooperating in the case in chief, on how he and Trump conspired with Russia to exploit our democratic process.

Instead of referring to the materials on Manafort’s refusal to cooperate, Ellis instead just regurgitated defense materials and claimed that aside from stealing millions of dollars from taxpayers and whatever else went on before Amy Berman Jackson, Manafort had “lived an otherwise blameless life.”

And that’s where I step away from a generalized discussion of the barbaric nature of our criminal justice system to look specifically at the barbaric nature of what Paul Manafort has done with his life. I feel much the way Franklin Foer does.

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations.

In an otherwise blameless life, he helped Philippine President Ferdinand Marcos bolster his image in Washington after he assassinated his primary political opponent.

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees.

[snip]

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit.

[snip]

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power.

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan.

Paul Manafort invented the profession of sleazy influence peddler. His own daughter once acknowledged, “Don’t fool yourself. That money we have is blood money.” And our democracy, as well as more corrupt regimes around the globe where Manafort was happy to work, are much less just because of Manafort’s life’s work.

Which is why I take more solace in something that happened the night before Manafort’s sentencing: A CNN report that DOJ has put Brandon Van Grack — a prosecutor who, under Mueller, prosecuted Mike Flynn and his sleazy influence peddler business partners — in charge of a renewed effort to crack down on unregistered sleazy influence peddlers.

The initiative at the Justice Department to pursue violations of the Foreign Agents Registration Act, which requires that an entity representing a foreign political party or government file public reports detailing the relationship, will be overseen by Brandon Van Grack, who left Mueller’s team in recent months to rejoin the national security division.

Van Grack’s appointment to the newly created position and the Justice Department’s interest in expanding its pursuit of foreign influence cases stemmed largely from the impact of Russian operations on the 2016 presidential election, John Demers, the head of the national security division, said Wednesday at a conference on white-collar crime.

With Van Grack’s new role, the Justice Department will shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority,” Demers said.

He also pointed to the impact of a recent settlement with one of the country’s highest-profile law firms — Skadden, Arps, Slate, Meagher & Flom LLP — on the department’s decision to escalate its enforcement in that area.

[snip]

Demers added that the Justice Department is considering seeking congressional authorization for administrative subpoena power to enforce the Foreign Agents Registration Act, which it currently lacks.

“That’s something that we’re taking a hard look at,” he said. Referencing Skadden, he added: “Do I think the firm would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

This marks a decision to treat FARA violations — sleazy influence peddling that hides the ultimate foreign customer — as a real risk to our country. As I have laid out in my comparison of Manafort’s “otherwise blameless life” and Maria Butina’s efforts to infiltrate right wing politics, a venal insider with an already rich political network will be far more effective (and insidious) than even a beautiful woman backed by a mobbed up foreign government official and abetted by her own washed out Republican insider.

I don’t know what Mueller is doing with all the evidence of a conspiracy that he continues to protect. I don’t know that he’ll be able to deliver a prosecutorial conclusion that will deliver justice for the sleazy things that Trump did to win the election. Prosecuting very powerful people is very difficult, and we shouldn’t forget that.

But one other point of this entire investigative process was to learn lessons, to make it harder for hostile outsiders to hijack our democratic process going forward.

In letting Manafort off with a metaphorical wrist-slap, TS Ellis did nothing to deter others who, like Manafort, will sell out our country for an ostrich skin jacket. Even ABJ will face some difficult challenges in DC when she tries to sentence FARA crimes (particularly those of Sam Patten, who cooperated) without precedents to do so.

But the way to build those precedents — the way to establish a record that causes a Skadden Arps or a Rob Kelner to treat FARA registration as the official declaration to the government that it is — is to pursue more of these cases, against sleazy influence peddlers working for all foreign entities, not just the ones we despise.

So Manafort may get off easy for helping Russia interfere in our election in a bid to line up his next gig white-washing brutal oligarchs.

But along the way, our justice system may be adapting to the certainty that he did not live an otherwise blameless life

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

In Defense of Emmet Sullivan: Van Grack Suggested Mueller Did Review Whether Flynn’s Behavior Amounted to Treason

I’d like to defend Judge Emmet Sullivan’s intemperate mentions of unregistered foreign agents and treason in the Mike Flynn sentencing hearing yesterday. Not only has the discussion about his comments gotten the precise language used wrong, but it fails to understand the import of Mike Flynn’s lies about being an agent of the Turkish government.

There are two comments in question. First, in part of a speech about how he would weigh the mitigating and aggravating factors in Flynn’s sentencing, Sullivan said that Flynn was “an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.”

I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States. [my emphasis]

Then, after having gotten Flynn to finally take him up on consulting with his attorneys, but before they recessed, Sullivan sat Flynn down and asked prosecutor Brandon Van Grack if prosecutors had evaluated Flynn’s activities to see if his behavior rose to the level of “treasonous activity.” Van Grack responded by answering about the crime of treason.

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

MR. VAN GRACK: The government did not consider — I shouldn’t say — I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant.

THE COURT: All right. Hypothetically, could he have been charged with treason?

MR. VAN GRACK: Your Honor, I want to be careful what I represent.

THE COURT: Sure.

MR. VAN GRACK: And not having that information in front of me and because it’s such a serious question, I’m hesitant to answer it, especially because I think it’s different than asking if he could be charged under FARA or if there were other 1001 violations, for example. [my emphasis]

Flynn went off, consulted with his lawyers, and wisely decided the last thing he should do is let Sullivan sentence him while he was thinking of treason. When he came back, the first thing Sullivan did was correct that Flynn was not acting as a foreign agent while serving as National Security Advisor and explain that he did not think Flynn had committed treason, but wanted to know what Mueller’s thinking on uncharged crimes was.

THE COURT: All right. I just want to ask a couple of questions. This is directed to either government counsel or defense counsel. I made a statement about Mr. Flynn acting as a foreign agent while serving in the White House. I may have misspoken. Does that need to be corrected?

MR. VAN GRACK: Yes, Your Honor, that would be correct, which is that the conduct ended, I believe, in mid-November 2016.

THE COURT: All right. That’s what I thought, and I felt terrible about that. I just want the record clear on that. You agree with that, Counsel?

MR. KELNER: Yes, Your Honor.

THE COURT: All right. I also asked about — and this is very important — I also asked about the Special Counsel’s Office. I also asked questions about the Special Counsel and the — and other potential offenses for the purpose of understanding the benefit, if any, that Mr. Flynn has received in the plea deal. I wasn’t suggesting he’s committed treason. I wasn’t suggesting he committed violations. I was just curious as to whether or not he could have been charged, and I gave a few examples.

[snip]

THE COURT: And I said early on, Don’t read too much into the questions I ask. But I’m not suggesting he committed treason. I just asked a legitimate question.

MR. VAN GRACK: Yes, Your Honor. And that affords us an opportunity to clarify something on our end which is, with respect to treason, I said I wanted to make sure I had the statute in front of me. The government has no reason to believe that the defendant committed treason; not just at the time, but having proffered with the defendant and spoken with him through 19 interviews, no concerns with respect to the issue of treason. [my emphasis]

Now, I will be honest with you: I was screaming at Sullivan when I read this being tweeted out in real time, in part because I spend so much time arguing that Trump and his flunkies won’t be charged with treason because we’re not at war. I do think, in an effort to convey to Flynn just how reprehensible he believes his actions were, Sullivan got out over his skis. But I think his comments are far more defensible — and telling — than much of the commentary appreciates.

Here’s why.

First, even the docket makes it clear that there are a bunch of sealed documents that Sullivan has gotten, including an ex parte version of the government’s addendum describing Flynn’s cooperation. Sullivan started the hearing yesterday emphasizing that point, then returned to it after he had gotten Flynn to plead guilty again under oath.

There’s a great deal of nonpublic information in this case, and I’ll just leave it at that.

If any of my questions require a party to disclose nonpublic information, or if I begin to discuss something nonpublic, don’t be shy in telling me. My clerks over the years have learned to do this (indicating) if I get off of script or if I get into areas where — I won’t get offended if you do it. I may not see you, so stand up and raise your hands or say something, please. I don’t want to unintentionally say something that should not be revealed on the public docket.

There’s a new document that was filed at 10:19 this morning. The government filed a sealed motion alerting the Court that it inadvertently omitted one document from the government’s in-camera production.

[snip]

Having carefully read all the materials provided to the Court in this case, including those materials reviewed under seal and in-camera, I conclude that there was and remains to be a factual basis for Mr. Flynn’s plea of guilty. [my emphasis]

By yesterday morning, Emmet Sullivan probably became one of the few people outside Mueller’s team and his DOJ supervisors that understands the activities that Trump and his associates, including Flynn, engaged in from 2015 to 2017. He understands not just the significance of Flynn’s lies, but also how those lies tied to graft and conspiracy with foreign countries — countries including, but not limited to, Russia.

It should gravely worry the Trump people that Sullivan’s comments about whether Flynn’s behavior was treasonous came from someone who just read about what the Mueller investigation has discovered.

Now consider that, as part of his effort to understand how much benefit Flynn got from pleading guilty to one charge of false statements for his multiple lies, Sullivan and Van Grack had this exchange.

MR. VAN GRACK: [W]e’d like to bring to the Court’s attention that we just had an indictment unsealed in the Eastern District of Virginia charging Bijan Rafiekian and Ekim Alptekin with various violations, and the defendant provided substantial assistance to the attorneys in the Eastern District of Virginia in obtaining that charging document.

THE COURT: All right. Could the defendant have been indicted in that indictment? Could he have been charged in that indictment?

MR. VAN GRACK: And, Your Honor, the answer is yes, and the reason for that is that in the Statement of Offense in this case, the defendant refers to false statements in that FARA filing that are part of the indictment filed in the Eastern District of Virginia.

[snip]

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

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

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

MR. VAN GRACK: I believe so.

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

Van Grack not only says that Flynn could have been charged in that conspiracy to act as an unregistered foreign agent indictment, but that the lies he told were part of the indictment.

And in fact, this language in Flynn’s statement of the offense (which Sullivan read yesterday in court):

On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.

Became this language in the Bijan Kian and Ekim Alptekin indictment:

From approximately January 2017 through approximately March 2017, outside attorneys for Company A gathered information to determine whether Company A or any of its employees had an obligation to register under FARA based upon Company A’s work on “Operation Confidence.” During this process, RAFIEK.IAN and ALPTEKIN knowingly provided false information to Company A’s attorneys in an effort to hide from the attorneys – and ultimately from the FARA Unit – the involvement of Turkish government officials in the project.

Among other things, RAFIEKIAN falsely told Company A’s attorneys that:

a. The meeting on or about September 19, 2016 in New York City had nothing to do with Project Confidence, and instead was in furtherance of an abandoned “Project Truth” that was distinct from Project Confidence;

b. There were no other contacts with Turkish government officials regarding the project;

c. The op-ed was Person A’s own idea, and he wrote it on his own behalf, and unrelated to the project;

[snip]

Attorneys for Company A also solicited information from ALPTEKIN for use in the FARA filings. Through his own attorneys, ALPTEKIN falsely told Company A’s attorneys that:

a. ALPTEKIN had not been consulted on the op-ed, and that he would have opposed it if he had been consulted;

[snip]

On or about March 7, 2017, RAFIEKIAN and ALPTEKIN caused to be made the following false statements of material fact in documents filed with and furnished to the Attorney General under the provisions of FARA, and omitted the following material facts necessary to make the statements therein not misleading. RAFIEKIAN reviewed the filings and provided comments to Company A’s attorneys before the filings were submitted, but did not request that any of these false statements be changed.

[snip]

Exhibit A to Company A’s FARA Registration Statement falsely stated that “[Company A] does not know whether or the extent to which the Republic of Turkey was involved with its retention by [Company B] for the three-month project.”

[snip]

Paragraph 13: “In addition to the above described activities, if any, have you engaged in activity on your own behalf which b~nefits your foreign principal?”

Response: “Because of its expertise, [Company A J -officials write, speak, and give interviews relating to national security. Although not undertaken at the direction or control of a foreign principal, it is possible that such activities may have an indirect benefit to a principal. On his own initiative, [Person A J published an op-ed in The Hill on November 8, 2016, that related to the same subject matters as [Company A] work for [Company BJ. Neither [Company BJ, nor any other person requested or directed publication of the op-ed.”

The Attachment to Company A’s FARA Supplemental Statement falsely stated that “[Company A] understood the engagement to be focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, particularly with respect to the stability of Turkey and its suitability as a venue for investment and commercial activity.”

While there are other false statements alleged (presumably the ones Van Grack said Flynn was not implicated in), the EDVA indictment actually charges four counts of false statements, and one of those directly maps to the lie Flynn himself pled guilty to.

Side note: it’s worth mentioning that Rob Kelner — who is still Flynn’s lawyer — is the guy who submitted those false FARA statements, which means he may be the lawyer that will take the stand in the EDVA trial to attest to the lies on those forms. It’s Kelner who still has some cooperation with prosecutors to do, at least as much as Flynn.

Significantly, as I noted the other day, both the conspiracy and the foreign agents charges in the EDVA indictment say the conduct continued through March 2017, the date Flynn Intelligence Group filed false FARA filings, hiding the fact that they knew Turkey was behind the Fethullah Gulen project.

COUNT ONE Conspiracy – 18 U.S. C. § 3 71 THE GRAND JURY FURTHER CHARGES THAT: 1. The allegations contained in the General Allegations of this Indictment are incorporated here by reference. 2. From at least July 2016, through at least March 2017, in the Eastern District of Virginia and elsewhere, the defendants,

[snip]

COUNT TWO Acting as an Unregistered Agent of a Foreign Government – 18 U.S. C. § 9 51 THE GRAND JURY FURTHER CHARGES THAT: 1. The allegations contained in the General Allegations of this Indictment are incorporated here by reference. 2. From approximately July 2016 through approximately March 2017, in the Eastern District of Virginia and elsewhere, the defendants, [my emphasis]

There’s a reason it gets charged that way, which is even more important for Flynn than for his co-conspirators (a reason that also played out in Paul Manafort’s case, in which he was charged for hiding his ties to Ukraine at a time when they would have impacted the Trump campaign).

The point of these registration crimes is that so long as you withhold full disclosure about your actions, you continue to lie to the federal government and the public about the significance of your actions. By filing a registration in March 2017 specifically denying what all the co-conspirators knew — that Flynn Intelligence Group was actually working for Turkey, not Ekim Alptekin’s cut-out Inovo — it prevented the public and the government from assessing the import of Flynn’s actions in trying to force DOJ to deem Gulen a terrorist who could be extradited to Turkey. And frankly, so long as Flynn continued to hide that detail, it made him susceptible to pressure if not blackmail from Turkey.

There’s a grammatical difference between Sullivan’s two comments. He first said that Flynn was “an unregistered agent of a foreign country, while serving as the National Security Advisor.” That was, technically, true. For the entirety of the time Flynn served as National Security Advisor, FIG had not admitted that it had actually been working directly for Turkey. Indeed, FIG continued to lie (and so remained unregistered) about that fact until December 1, 2017, when Flynn pled guilty.

As I’ll show in a follow-up post, it is critically important that Flynn continued to lie about whether he had been working directly for Turkey when he met with the FBI on January 24, 2017.

Sullivan’s follow-up used different grammar. Then, he said “Flynn [was not] acting as a foreign agent while serving in the White House.” That is also true. He was no longer secretly being paid by the government of Turkey to do things like slap his name on op-eds written by other people.

Still, even though he was no longer being paid to take specific actions requested by the government of Turkey, for the entire time he worked at the White House (and for more than eight months afterwards), his past work as an agent of a foreign government — as opposed to a foreign company cut-out — remained unregistered, undisclosed to the public.

With that in mind, I want to return to the specific exchange that Sullivan had. In response to his question about whether Flynn’s behavior amounted not to treason, but to treasonous activity, Van Grack at first says they did not consider treason, but then corrected himself.

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

MR. VAN GRACK: The government did not consider — I shouldn’t say — I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant. [my emphasis]

All of this seems to be consistent with Mueller reviewing Flynn’s actions, reviewing statute, finding that Flynn’s behavior did rise to the standards described in 18 USC 951 (with which Van Grack said he could have been charged), but did not rise to treason (as it clearly did not). Van Grack explained that “in terms of other offenses, they were not sort of in consideration in our interfacing with the defendant,” which seems to admit that Flynn could have been charged with other crimes, but was not, because he cooperated.

This walkback, I’m convinced, is as much for the benefit of the prosecutors, who gave Flynn an unbelievable sweetheart deal, as it was for the sake of judicial restraint. Mueller is forgiving Flynn working in the White House while continuing to hide that he had, during the campaign, secretly and knowingly worked for a foreign government, in consideration of his cooperation unveiling other activities.

But legal standards aside, Sullivan — one of the only people who has read a summary of what Flynn provided in his cooperation — still could not hide his disgust about the conduct he knows far more about than we do.

This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point, had an unblemished career of service to his country. That’s a very serious offense.

You know, I’m going to take into consideration the 33 years of military service and sacrifice, and I’m going to take into consideration the substantial assistance of several ongoing — several ongoing investigations, but I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that. I cannot assure you that if you proceed today you will not receive a sentence of incarceration. But I have to also tell you that at some point, if and when the government says you’ve concluded with your cooperation, you could be incarcerated.

It could be that any sentence of incarceration imposed after your further cooperation is completed would be for less time than a sentence may be today. I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense. [my emphasis]

I remain frustrated that Sullivan raised treason at all yesterday, as I spend a great deal of time tamping down discussion of treason; none of the Trump flunkies’ actions that have been thus far revealed reach treason.

But I think I’m beginning to understand what a big deal it was for Flynn to continue to lie about his service for Turkey, even aside from the disgust I share with Sullivan that anyone would engage in such sleazy influence peddling while serving as a key foreign policy advisor for a guy running for President.

Flynn did a lot of really sleazy things. There was no discussion yesterday, for example, about how he gleefully worked on cashing in with nuclear deals even while Trump was being inaugurated. The public lacks both a full accounting of his sleazy actions and full understanding of their import for national security.

Mueller’s team thinks Flynn’s cooperation has been so valuable that it should wipe away most punishment for those sleazy actions. Emmet Sullivan, having read a great deal of secret information, is not so sure.

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

The Flynn Sentencing: What Comes Next?

As Zoe Tillman describes, the Mike Flynn sentencing hearing today was even more unpredictable than I imagined (and I anticipated it would bring some surprises). Judge Emmet Sullivan (after apparently putting Flynn under oath so these questions, too, could be charged for perjury) asked him several times whether — given the sentencing memorandum he submitted suggesting extenuating circumstances for his lies to the FBI (but not to DOJ’s FARA team) — he believed he had lied, whether he knew that was a crime, whether he wanted to plead guilty.

Throughout the proceedings, US District Judge Emmet Sullivan repeatedly asked Flynn if he wanted to go ahead with sentencing, given his lawyers’ comments questioning the conduct of the FBI officials and agents who handled his questioning in January 2017, and the fact that Flynn might not be finished cooperating.

Having established that — and offered Flynn several opportunities to delay sentencing, he laid into him, even going so far as to ask prosecutor Brandon Van Grack if Mueller had considered charing Flynn with treason.

“Arguably, that undermines everything this flag over here stands for,” Sullivan said, gesturing to an American flag displayed behind his chair. “Arguably you sold your country out.”

Sullivan continued: “I’m not hiding my disgust, my disdain for this criminal offense.”

Flynn at that point took up the judge’s offer of additional time to consult with his lawyers. Before the judge took a break, however, he asked special counsel prosecutor Brandon Van Grack if Flynn could have been charged with treason for his conversations with now-former Russian ambassador Sergey Kislyak in December 2016, after then-president Barack Obama had entered sanctions against Russia for interfering in the election.

That’s when Flynn asked Sullivan for a break. When he and his lawyers returned, they took Sullivan up on his offer for a delay, and suggested a status hearing in March.

But it’s not entirely clear how that will help — aside from giving Sullivan time to set aside the visceral disgust he showed for Flynn today.

Here’s are some possible scenarios:

Flynn Finds Something Else to Cooperate On

This is the ostensible reason to delay the sentencing, so that Flynn can cooperate some more, in an attempt to convince Sullivan he should avoid prison time.

When Sullivan asked Van Grack whether Flynn was done cooperating, and the prosecutor replied that it remained a possibility. That stops short of even promising that Flynn will be called to testify in the trial against his former partner, Bijan Kian. As I noted yesterday, the indictment seemed to be built to avoid that, and as an unindicted co-conspirator there may be problems if Flynn does testify, to say nothing of his limited credibility as a sworn liar. Moreover, Flynn’s substantial cooperation in getting prosecutors to this point was already baked into today’s sentencing. It’s hard to imagine what Flynn could do to improve on that.

Which leaves the possibility that Flynn knows of something — some other crime, whether by Trump and his circle, or some of his other pals — that he can offer to federal prosecutors. It is possible that, seeing an angry judge talking about treason and imagining prison, Flynn unforgot somethings he knows, so took his lawyer aside and said there was another area he might be willing to share with prosecutors.

Trump Risks Clemency

A more likely motivation, for Flynn, is the hope that Trump will decide to give Flynn the pardon he floated over a year ago. If Flynn delays long enough, Trump might get into a place where it’ll be politically feasible for him to commute any sentence Flynn makes.

Maybe he, like the nutters who occupy the same bubble he does, that after a series of false hoaxes over the last year, someone will finally discover something that will provide the excuse Trump needs.

Or maybe he’s just delaying in hopes that one of the long shot challenges to Mueller’s authority — or perhaps his firing — will get him off his charges.

All of these, of course, would amount to a play for time, in the hopes that his fortune will improve.

Kelner Falls on His Sword

After they came back from the break, Robert Kelner said something suggesting that Sullivan shouldn’t penalize Flynn in his sentencing for something his attorney (that is, he, Kelner) had written in a sentencing memo.

It’s unclear to me whether Kelner was referencing the stunt suggesting there were extenuating circumstances explaining why Flynn lied or a reference he made to David Petraeus (Sullivan explicitly suggested he thought Petraeus got an easy deal). It’s equally unclear to me how much of Sullivan’s tirade today stemmed from Flynn’s actual conduct (and the sweet deal he himself got) or the stunt.

Particularly if it’s the former, then it’s possible to win some favor from Sullivan by having Kelner even more publicly fall on his sword, claiming (the claim would almost certainly be utter bullshit) that it was his idea to try that stunt. That might provide Flynn an opportunity to present a new, chastened sentencing memo in March, such that Sullivan would be more amicable to giving him probation.

There’s a tension underlying this: One reason Flynn wanted to get sentenced early was so he could return to sleazy influence peddling so he could pay his legal bills. Now he’s looking at still more legal bills for a stunt that he probably demanded.

The Unfolding Turkish and Russian Stories Change the Context

Judge Sullivan (or his clerks) have read, at a minimum, the following:

  • An unredacted copy of Flynn’s 302
  • An unredacted copy of the McCabe memo
  • A partly unredacted copy of the Strzok 302 (some parts of it are not relevant to this case, so may not have been shared)
  • An unredacted copy of Flynn’s cooperation addendum
  • An ex parte version of the Flynn cooperation addendum including details Flynn doesn’t know
  • Information, in some form, on the Kian indictment

And there are still some sealed items in Flynn’s docket.

So Sullivan should have a pretty complete idea of what cooperation Flynn has given.

That said, it’s not impossible that as both the Kian prosecution (I suspect he’ll plead) and the Russian investigation proceeds, additional information will become known — or at least public — to change the context of Flynn’s actions. Maybe, if the crimes of his business partner end up far worse than we know, Flynn’s treatment for the foreign agent charge won’t appear as easy. Maybe, if people next to Trump get charged with serious crimes, the value of Flynn’s cooperation will make him look less like a sell-out.

But the opposite could happen, as well. As his co-conspirators attempt to save themselves, they may be able to present credible evidence about stuff Flynn has thus far suppressed (if not from Mueller, from the public).

And what if Trump ultimately quits in disgrace? Sure, he could pardon his co-conspirators on the way out (though I doubt he’d do that if there weren’t a benefit to him). But if Trump leaves in disgrace, Flynn’s continued good relations with Trump may only make him look like more of a sell-out.

The point is, short of finding other criminals to flip on or finding a way to remove Mueller’s authority, it’s not clear how Flynn’s fortune can improve over the next three months, and there are definitely ways his fortune could go south.

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

Mueller’s Inquiry Expands and Contracts: The Rat-Fucking Is More Interesting than the Manafort Plea

There were two pieces of news today on the Mueller inquiry.

Most intriguing is the news that the FBI has told Republican operative Cheri Jacobus that their investigation of her hack and catfish in 2016 has been referred to Mueller. Click through for the full account of what happened to Jacobus after she exposed a Corey Lewandowski PAC to be coordinating with the campaign. The short version, though, is that the campaign first used deceit to try to collect information on what anti-Trump PACs were planning, later carried out a sustained campaign of abuse, and finally hacked her email when she prepared to reveal the catfishing scheme.

The FBI has been investigating ever since. But on September 10, the agents she had been working with let her know that their inquiry had grown beyond the hack itself and so had referred the case.

Jacobus has been in regular contact with FBI agents since the bureau opened an investigation into the hacking of her email after Jacobus filed a complaint around September 2016.

Following Trump’s election, Jacobus relayed additional incidents she considered suspicious to the agents investigating the hack.

Jacobus said she was also interviewed by FBI agents in the Southern District of New York for several hours in February 2017 and has had dozens of phone calls with the agents over the past two years. A lawyer who worked for Jacobus at the time, Jay Butterman, said he also attended the February 2017 meeting and had follow-up conversations with FBI agents.

In November 2017, the FBI asked Jacobus to turn over the remainder of her communications related to the catfishing scheme, some of which she had already submitted, according to an email reviewed by POLITICO.

On Sept. 10 of this year, an FBI agent wrote to Jacobus that he would be calling her, which is when, she said, the bureau informed her of the case’s referral to Mueller.

To answer a question many have posed, I don’t think any investigation into what I perceived as threats mirrors this. That’s in part because the technical threats were more oblique. But it’s also because the FBI really doesn’t want to talk to me, and so (with one exception) generally only followed up via my lawyer. The one instance I involved the cops may have been different, but if so, I never heard about it directly.

I’m more interested in the possibility that Jacobus’ treatment mirrors some of the stuff that Roger Stone was doing with his Stop the Steal çampaign.

The possibility that Mueller’s interest in Stone (and Manafort) extends back to the primary is all the more interesting given how centrally some of Stone’s core skill-sets played out in the lead-up to the Convention. There were veiled threats of violence (and in the home of his dark money, actual violence), a smear story projecting on Cruz the infidelity more typical of Trump, and lots of money sloshing around.

It’s not entirely clear what crime that would implicate — besides potential campaign finance violations (particularly, given Trump’s repeated disavowals of any coordination between Stone and his old buddy Manafort).

And, given how rabidly Republican base voters support Trump, I could see why Republicans would let bygones be bygones. It’s not like the Republican party has ever before shown distaste for Stone’s rat-fucking. Plus, no one likes Ted Cruz, and he may not even survive his race against Beto O’Rourke. So, no, Republicans won’t be any more disposed against Stone if he is shown to have helped Trump cheat in the primary.

All that said, if Mueller indicts Stone in other crimes that Republicans would like to distance themselves from, any allegations about the primary may provide cover.

Indeed, the comparison is one a number of people made when I started focusing on Stone’s PACs.

With one caveat, I’d think these would probably be parallel efforts, with two different sets of dark money groups funding two different sets of dirty tricks, violating both campaign law and probably some other fraud statutes. I say that because Corey Lewandowski, who was behind the attack on Jacobus, and Roger Stone really don’t get along.

That said, the two parallel tracks likely show a tolerance among the principals who did get along with both Lewandowski and Stone (starting with Trump) for this kind of rat-fucking. And to the extent that some of the rat-fucking involved either intelligence obtained from Russians or coordinated voter suppression later in the campaign, then it’d have a solid Russian nexus.

The one caveat is this tweet from Jacobus, which reveals a text she received from a guy making explicit threats, which she clearly identifies as a Stone-related threat. (h/t TC)

So maybe Stone just took over all the rat-fucking after Jacobus busted Lewandowski’s PAC for illegal coordination?

Also remember that, the illegal coordination between PACs and the campaign is likely one way that the campaign benefitted from Cambridge Analytica.

And that’s why I find the referral of the attack on Jacobus to be one of the most important details to provide insight onto the Mueller investigation in some time.

I find the news that money laundering expert Kyle Freeny and National Security Division prosecutor Brandon Van Grack are moving back to their normal homes at DOJ less intriguing.

Kyle Freeny and Brandon Van Grack, two prosecutors who worked on Paul Manafort’s criminal cases, are ending their tenure working for special counsel Robert Mueller.

Van Grack left recently to return to his job in the National Security Division of the Justice Department, and Freeny will leave the office in mid-October to return to the Criminal Division.

The most obvious explanation for both moves is that the Paul Manafort and Mike Flynn plea deals have been sealed (CNN notes that Van Grack will continue to work on the Flynn sentencing, but has mostly moved back to NSD for now). Which would make the different timing — Van Grack has already left, apparently, whereas Freeny has a few more weeks of work — the most interesting part of the report. Perhaps Van Grack left as soon as Flynn got a sentencing date?

Though there is another possibility, particularly in Freeny’s case.

I’ve long said that it’s possible once Mueller puts together the conspiracy case, he may farm out the “garden variety” corruption to other parts of DOJ. One key part of that, for example, is the non-Russian inauguration pay-for-play. That might be the kind of thing Freeny would move with to another part of DOJ.

As for Van Grack, I don’t rule out a tidbit or two that he had touched being moved back under NSD, though if so, it’s not a part of the investigation that has any public sign yet.

Remember: We still haven’t seen what a good number of Mueller’s prosecutors have been up to for the last 15 months. Those are some of the prosecutors who remain quietly busy.

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

Why Republicans Launched the GSA Email Attack Now

I think most people are missing the significance of why the Republicans launched their attack on the GSA over the weekend (this post is a summary of what we know, with updates).

That’s true, in part, because people are misunderstanding what the Trump for America team recently learned. It’s not — as many have claimed — that they only recently learned Mueller had emails beyond what TFA had turned over to Congress and through that to Mueller. As Axios reported, “Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.” That is, Mueller has been asking questions based off these emails for months.

The timing of this complaint — not the complaint itself — is key

What TFA only discovered last week, according to their letter, at least, is how Mueller obtained them — by asking, just like prosecutors reviewing government communications in the course of investigating possible violations of the Espionage Act always do, especially if the subjects of the investigation have access to classified documents.

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned that the Special Counsel’s Office had received certain laptops and cell phones containing privileged materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware. During this exchange, Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA.1 Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue.

The government has great leeway to access government communications, as Peter Strzok, the former counterintelligence FBI Agent who just had his own communications leaked and then released to the world, would probably be all too happy to tell you. All the more so given allegations that files went missing from the Transition SCIF, just as Jared Kushner was talking about back channel communications with the Russians.

So what’s new is not that Mueller had the emails (about which no one has complained before). But that he obtained the email inboxes of 13 people, including Jared, from GSA without letting the Transition do their own review of what to turn over.

Trump’s team may face obstruction charges

As I made clear here, it appears that one reason the Trump people are so angry is that Mueller has probably caught them failing to turn over emails that are absolutely material to the investigation, such as KT McFarland’s “Thrown election” email. Whoever did these document reviews may now be exposed to obstruction charges for withholding such material, which in turn would give Mueller leverage over them for their own further cooperation.

[Update: I should have said, withholding emails will only be a problem if the Transition was otherwise obligated (say, by subpoena) to turn them over. Mueller did subpoena the campaign for a similar set of emails; but since he didn’t need to from GSA, he may not have here.]

Mueller has far more damning information on Jared than Trump’s folks expected

Just as importantly, Axios explicitly said the emails include Jared Kushner’s emails (indeed, given his public claims about how many people he spoke to during the transition, I wouldn’t be surprised if his was the email box that had 7,000 emails).

As I have shown, Jared has been approaching disclosure issues (at least with Congress) very narrowly, ignoring clear requests to turn over his discussions about the topic of the investigation, and not just with the targets of it. If Mueller obtained all his emails, he’d have those “about” emails that Jared purposely and contemptuously has withheld from others.

We know that Jared is a key interim Mueller target here (and Abbe Lowell’s search for a crisis communications firm to help sure suggests Jared’s defense team knows that too). We know he felt the need to explain how he went from responding to a personalized Vladimir Putin congratulatory email on November 9 to asking Dmitri Simes for Sergei Kislyak’s name.

Take, for example, the public statement prepared for testimony to congressional committees by the president’s son-in-law and adviser Jared Kushner. There, he revealed that on the day after the election, in response to a congratulatory email from Russian President Vladimir Putin, he asked the publisher of The National Interest, Dimitri Simes, for the name of Russia’s ambassador to the United States. “On November 9, the day after the election, I could not even remember the name of the Russian ambassador,” Kushner claimed. “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

We also know that Mueller’s team has expressed some skepticism about Kushner’s previous public claims — and I would bet money this includes that email.

CNN recently reported, however, that in an interview conducted in the weeks before Flynn’s plea deal, “Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports.” So Mueller’s team may now have doubts about the explanation Kushner offered for his interest in speaking with Kislyak as one of the first things he did after his father-in-law got elected.

If Mueller has all Jared’s emails and those emails disclose far more about the negotiations with all foreign powers conducted during the transition (including with Bibi Netanyahu on settlements, but obviously also with Russia), and Trump’s people recognize those emails expose Jared to serious charges, then of course they’re going to complain now, as the expectation that Mueller might soon indict Kushner grows.

Mueller has an outline of places where Trump was personally involved

Most importantly, consider what those morons laid out: they want to claim that these emails from the transition period — emails they insist were not government emails — are protected by Executive Privilege.

The legal claim is ridiculous; as I and far smarter people have noted, you don’t get Executive Privilege until you become the actual Executive on inauguration day.

But that they made the claim is telling (and really fucking stupid).

Because that tells us which emails Trump officials believe involve communications directly with Trump. The KT McFarland email, which we know was written from Mar-a-Lago, is a case in point. Did they withhold that because they believe it reflects a conversation with Trump? If so, then we know that Trump was personally involved in the orders to Mike Flynn to ask the Russians to hold off on retaliating for Obama’s sanctions. It might even mean that the language attributed to McFarland — about Russia being the key that unlocks doors, efforts to “discredit[] Trump’s victory by saying it was due to Russian interference, “thrown elections,” and Obama boxing Trump in — is actually Trump’s own language. Indeed, it does sound like stuff he says all the time.

And given that the emails include “speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes,” it might even reflect Trump’s own explanations of why — for example — he couldn’t nominate Flynn to be CIA Director because of his ties to Russia and Turkey.

In the wake of his plea agreement, Flynn’s surrogate made it clear that Trump ordered him to carry out certain actions, especially with Russia. That’s likely a big reason why, in the wake of the Flynn plea, Trump’s people are now squawking that Mueller obtained these emails, emails that may lay out those orders.

Heck. These emails might even reflect Trump ordering Flynn to lie about his outreach to Russia.

Maybe that’s why Trump’s aides have promised to demand Mueller return the emails in question.

All of which is to say, there are things about these emails that explain why this attack is coming now, beyond just a generalized effort to discredit Mueller. The attack is designed to discredit specific avenues of investigation Mueller clearly has in hand. And those avenues reveal far more about the seriousness of the investigation than anything Ty Cobb is willing to claim to appease the President.

That said, the attack is probably too little, too late.