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Judge Sullivan Already Ruled that Mike Flynn’s David Ignatius Story Doesn’t Help Him

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When I noted that the John Durham investigation has been investigating the first 10 months of the Russian investigation for 11 months now (and seemed on track to continue for another four months at least), I didn’t include a number of details laid out in this government filing and this NYT story.

The government filing makes it clear that St. Louis US Attorney continues his second-guess review of the investigation into Mike Flynn, three months after he began.

The NYT story describes that, in addition to the DC AUSA on Durham’s team and two prosecutors from Connecticut, he’s also got an SDNY prosecutor.

Mr. Durham is relying on a team of prosecutors, including Nora R. Dannehy and Neeraj Patel, from Connecticut, as well as former and current F.B.I. agents to complete his investigation. Anthony Scarpelli, a top prosecutor from the U.S. attorney’s office in Washington, was detailed to the team along with a federal prosecutor from Manhattan, Andrew DeFilippis.

Two former F.B.I. agents, Timothy Fuhrman and Jack Eckenrode, are also assisting. An F.B.I. agent who oversaw public corruption in Chicago and served in Ukraine as an assistant legal attaché, Peter Angelini, has also joined Mr. Durham’s team.

Arguably, Durham has more staffers than the investigation he is investigating had.

The NYT story also provides further evidence that Trump’s flunkies have been able to get Durham to chase down each of their grievances on command. Durham has been investigating something lifted out of a Sidney Powell filing — one already rejected by Emmet Sullivan — regarding the source of the leak to David Ignatius which led Mike Flynn to start lying, at first to the press.

Last year, Mr. Durham also started examining the 2017 column by The Post’s David Ignatius, said a person familiar with that line questioning. Mr. Ignatius revealed that Mr. Flynn had spoken in late 2016 with Sergey I. Kislyak, the Russian ambassador to the United States at the time, as the Obama administration was about to place sanctions on Russia for its election sabotage.

Mr. Ignatius noted Mr. Flynn’s close contacts with the Russians and suggested that because Mr. Flynn was apparently conducting foreign policy while another administration was in power, he might have violated the Logan Act. The law is an obscure statute that bars private citizens from interfering with diplomatic relations between the United States and foreign governments and is widely considered to be essentially defunct.

The next month, Mr. Flynn resigned after lying to the vice president and other White House officials about the call with Mr. Kislyak. He eventually pleaded guilty to lying to the F.B.I. about the nature of his discussions with Mr. Kislyak but later backtracked, asking a federal judge to allow him to withdraw his guilty plea.

Powell asked for this last September as part of an elaborate claim that James Clapper — who, of course, fired Mike Flynn for cause — had it in for Flynn and therefore set him up to be ambushed by the FBI once he became National Security Advisor. In addition to asking for records of calls between Clapper and Ignatius, she asked for all records pertaining to Ignatius.

All FBI 302s or any notes of interviews of David Ignatius or any other reporter regarding the publication of information concerning Mr. Flynn and/or the reporters’ contacts with James Clapper, Andrew McCabe, John Brennan, Michael Kortan, or anyone in the FBI, DNI, DOD, DOJ, or CIA regarding Mr. Flynn.

[snip]

All FBI 302s, notes, memoranda of James Clapper regarding Mr. Flynn, and the cell phone and home phone records of Mr. Clapper and David Ignatius between December 5, 2016, and February 24, 2017.

The NYT reported that KT McFarland also was attributing the dramatically varied stories she told to the FBI to the Ignatius story.

Mr. Ignatius’s column “set off a chain of events that helped lead to the Russia probe,” K.T. McFarland, the former deputy national security adviser to Mr. Trump, wrote in her recent book, “Revolution: Trump, Washington and ‘We the People.’”

Mr. Durham has reviewed Ms. McFarland’s interviews with F.B.I. investigators in other inquiries, examining what she has said about Mr. Ignatius’s reporting and asked other witnesses about it, according to person familiar with elements of the investigation. She revised her answers to questions from investigators for the special counsel, Robert S. Mueller III, on elements of Mr. Flynn’s talks with Mr. Kislyak but has accused the investigators of trying to ensnare her in “perjury trap.”

Mr. Durham has not questioned Ms. McFarland.

Let’s run with this for a moment, shall we? In addition to criticizing the Obama Administration for not responding more aggressively to the Russian operation and asserting that we needed to find out whether the Russians had fed Christopher Steele disinformation (both assertions Republicans have made), Ignatius revealed that a Senior Government Official told him that Flynn had had multiple conversations with Sergei Kislyak in advance of Russia declining to respond to Obama’s sanctions.

Question 3: What discussions has the Trump team had with Russian officials about future relations? Trump said Wednesday that his relationship with President Vladimir Putin is “an asset, not a liability.” Fair enough, but until he’s president, Trump needs to let Obama manage U.S.-Russia policy.

Retired Lt. Gen. Michael T. Flynn, Trump’s choice for national security adviser, cultivates close Russian contacts. He has appeared on Russia Today and received a speaking fee from the cable network, which was described in last week’s unclassified intelligence briefing on Russian hacking as “the Kremlin’s principal international propaganda outlet.”

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

If the Trump team’s contacts helped discourage the Russians from a counter-retaliation, maybe that’s a good thing. But we ought to know the facts.

Note, contrary to a lot of claims about this story, there’s no indication that the content of the conversation between Flynn and Kislyak got shared (and even just toll records showing the conversations did happen would be enough for a spooked up reporter like Ignatius to ask the question). In addition, the term, “government official,” is often used to hide the identity of members of Congress. It in no way is limited to someone like Clapper.

Nevertheless, let’s assume for the moment Flynn’s allegations are correct and Clapper was the guy who tipped off Ignatius to Flynn’s calls with Kislyak.

Clapper — and virtually all the other people who were part of discussions about this call early on — were Original Classification Authorities. He had just as much authority to declassify the existence of the Flynn calls as Ric Grenell had to declassify the Carter Page applications (arguably more so, since Clapper had obtained and sustained a security clearance on his own right for four decades, with none of the questionable conflicts Grenell has that remain unexamined). Even accepting Flynn’s claim that Clapper did leak the existence of the call, it would not be illegal. There’s an argument that says the intelligence community, with Clapper’s experience that Flynn was unsuited to run DIA and burgeoning questions about what Flynn had done for a frenemy government while serving as Trump’s foreign policy advisor, had to do something about the fact that the NSA designee had secretly worked for another government during the election, was still refusing to come clean about that, and had been caught on a wiretap undermining the official policy of the United States and arguing that Russia should face almost no punishment for interfering in the US election.

Trump would say Obama should simply have warned him. Except Obama did warn him, even before all the details of his work for Turkey had come out. And Trump ignored that warning.

Accepting Flynn’s allegation that Clapper did that (solely for the sake of argument), that would be a fairly quick way to figure out whether Flynn did what he did in contravention of Trump’s desires, something that Trump presumably would have wanted to know.

In response to the story, Flynn ordered his subordinates, including McFarland, to tell a series of lies, lies that conflicted with both what the intelligence community and the Russians knew.

UPDATE: The Trump transition team did not respond Thursday night to a request for comment. But two team members called with information Friday morning. A first Trump official confirmed that Flynn had spoken with Kislyak by phone, but said the calls were before sanctions were announced and didn’t cover that topic. This official later added that Flynn’s initial call was to express condolences to Kislyak after the terrorist killing of the Russian ambassador to Ankara Dec. 19, and that Flynn made a second call Dec. 28 to express condolences for the shoot-down of a Russian plane carrying a choir to Syria. In that second call, Flynn also discussed plans for a Trump-Putin conversation sometime after the inauguration. In addition, a second Trump official said the Dec. 28 call included an invitation from Kislyak for a Trump administration official to visit Kazakhstan for a conference in late January.

That’s not a crime, but insanely stupid from a counterintelligence perspective. Then, when the FBI asked him about it (in a situation that would not become public, in which he could simply have said that the Trump Administration wanted to pursue a different strategy, which would make him stupid but probably not criminal), Flynn continued to lie about it. When McFarland was asked details about the events surrounding the call, she claimed to have no memory of details that she would later unforget; that’s what her perjury trap amounts to: she continued to tell a story she knew Flynn had been fired for.

Which is to say, even if Flynn’s suspicions are true, if Clapper told Ignatius about the existence of calls, it would be (for Clapper) a legal way to try to sort out whether someone hiding damning secrets about two foreign governments was about to be put in charge of US national security.

Nothing about doing so would have changed the fact that Flynn was unsurprised by the FBI to be asked about this, was friendly and relaxed when he met with the FBI, knew it was illegal to lie to the FBI, and nevertheless proceeded to tell an easily identifiable lie.

When rejecting Powell’s request for Clapper and Ignatius’ call record in December, Judge Emmet Sullivan pointed out that even if everything she alleged about Clapper was true, that wouldn’t change that her client lied to the FBI.

Request 35 seeks “[a]ll FBI 302s, notes, memoranda of James Clapper regarding Mr. Flynn, and the cell phone and home phone records of Mr. Clapper and David Ignatius between December 5, 2016, and February 24, 2017.” Id. at 7. The government responds—and the Court agrees—that each request is not relevant to Mr. Flynn’s false statements during his January 24, 2017 FBI interview or to his sentencing. Gov’t’s App. A, ECF No. 122-1 at 2-5. Mr. Flynn fails to make out a Brady claim for the requested information regarding any earlier investigations, the circumstances that led to the January 24, 2017 FBI interview, or the events surrounding his prosecution because Mr. Flynn fails to establish the favorability element. Even assuming, arguendo, that the information regarding the circumstances that led to Mr. Flynn’s January 24, 2017 FBI interview, the events surrounding his prosecution, and any earlier investigations were both exculpatory and suppressed, Mr. Flynn bears the burden of showing a reasonable probability of a different outcome. Strickler, 527 U.S. at 291. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682 (“A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”). Mr. Flynn cannot overcome this hurdle.

Mr. Flynn appears to seek this information to: (1) support his claims of government misconduct; and (2) cast doubt on the legal basis for the FBI’s investigation. See Def.’s Reply, ECF No. 133 at 19, 19 n.13, 34-35. Mr. Flynn also asserts, without support, that the Special Counsel’s Office was “manipulating or controlling the press to their advantage to extort the plea.” Def.’s Br., ECF No. 109 at 4. Regardless of Mr. Flynn’s new theories, he pled guilty twice to the crime, and he fails to demonstrate that the disclosure of the requested information would have impacted his decision to plead guilty.

To be sure, Mr. Flynn was aware of the circumstances of the January 24, 2017 interview, and the allegations of misconduct against the FBI officials before he entered his guilty pleas. Sentencing Hr’g Tr., ECF No. 103 at 8-9. Mr. Flynn did not challenge those circumstances, and he stated, under oath, that he was aware that lying to the FBI was a crime. Id. In response to this Court’s questions, Mr. Flynn maintained his guilty plea. Id. at 9-10. None of Mr. Flynn’s arguments demonstrate that prejudice ensued. See Strickler, 527 U.S. at 291. The Court therefore finds that there was no reasonable probability that Mr. Flynn would not have pled guilty had he received the requested information in Requests 1, 3, 4, 11, 17, 21, 25, 28, and 35.

Earlier this month, Covington & Burling provided Flynn’s team with some materials they had overlooked when they transferred his case to Sidney Powell last summer. On Thursday, Covington & Burling gave the government over a hundred pages of declarations from four attorneys defending the competence of the legal advice they gave Flynn. Yesterday, the government provided Flynn reports that Jeffrey Jensen has done on the investigation into Flynn.

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.

Hours later, Powell filed a supplement to her motion to dismiss Flynn’s case for government misconduct (again, Sullivan has ruled on virtually all of these issues), claiming to show proof that Brandon Van Grack had promised not to prosecute Flynn’s son, but instead providing an email stating, “The government took pains not to give a promise to MTF regarding Michael Jr., so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against whom MTF may one day testify” — that is, to show that Flynn did not have a guarantee. Even if the email said what she claimed, it would be yet more proof that Flynn lied under oath to Sullivan in December 2018 when he said no such promise had been made.

She also claimed the reports from Jensen included,

stunning Brady evidence that proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI. It also defeats any argument that the interview of Mr. Flynn on January 24, 2017 was material to any “investigation.”

Maybe she does have proof the FBI agents fucked up. The NYT reports that someone briefed on them claimed, “the documents indicated that F.B.I. agents did not follow standard procedures as they investigated Mr. Flynn,” which is different than framing Flynn. 

But Powell has made such claims over and over, and each time thus far, the claims have proven to be not only way overblown, but full of embarrassing factual errors.

And unless she can show Sullivan something new, something that changes the fact that Flynn told obvious lies in his original interview with the FBI, he risks not just the original charge, but additional perjury referrals from Sullivan.

Meanwhile, Flynn has rejoined Twitter (he even blocked me finally, after following me for four years!), posting a declaration from January as if it was news. The declaration, along with these new emails, strongly suggests his son was in legal trouble as well.

It would be unwise to underestimate Bill Barr’s ability to interfere with DOJ’s normal processes (precisely the allegation being waged against the FBI). Still, Judge Sullivan still gets a vote, and on some of this stuff, he already voted against it.

At First, KT McFarland Told a Similarly Misleading Version of the Story Mike Flynn Will Be Pardoned For

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In his abundant free time, the President tweeted about pardoning Mike Flynn on Sunday.

According to Matt Gertz, this was a response to a Lou Dobbs segment with John Solomon where Dobbs said there are 302s that “can’t be found.” Per transcripts Gertz shared, this is a reference to Sidney Powell’s claim — repeated with Dobbs the day before — that the first draft of Flynn’s 302 is missing (she also complained that Flynn never received a January 2017 memo stating that DOJ did not believe Flynn was an agent of Russia, which is unrelated to whether he was an agent of Turkey or lied to the FBI about his interactions with Russia).

Emmet Sullivan has already judged Trump’s complaint to be baseless

In December, Emmet Sullivan already judged this complaint to be baseless because the notes written before any “original 302” and all the 302s already provided Flynn track each other and the 302s consistently capture Flynn’s lies.

Mr. Flynn speculates that the government is suppressing the “original 302” of the January 24, 2017 interview, Def.’s Reply, ECF No. 133 at 28; he claims that the lead prosecutor “made it sound like there was only one 302,” id. at 29; and he makes a separate request for the FBI to search for the “original 302” in one of the FBI’s databases, id. at 28-30. In Mr. Flynn’s view, the “original 302”—if it exists—may reveal that the interviewing FBI agents wrote in the report “their impressions that [Mr.] Flynn was being truthful.” Id. at 28. Mr. Flynn claims that the FBI destroyed the “original 302” to the extent that it was stored in the FBI’s files. Id. at 30. Comparing draft FD-302s of Mr. Flynn’s January 24, 2017 interview to the final version, Mr. Flynn claims that the FBI manipulated the FD-302 because “substantive changes” were made after reports that Mr. Flynn discussed sanctions with the Russian Ambassador “contrary to what Vice President Pence had said on television previously.” Id. at 14-15. Mr. Flynn points to the Strzok-Page text messages the night of February 10, 2017 and Ms. Page’s edits to certain portions of the draft FD-302 that were “material.” Def.’s SurSurreply, ECF No. 135 at 8-9.

To the extent Mr. Flynn has not already been provided with the requested information and to the extent the information exists, the Court is not persuaded that Mr. Flynn’s arguments demonstrate that he is entitled to the requested information. For starters, the Court agrees with the government that there were no material changes in the interview reports, and that those reports track the interviewing FBI agents’ notes.

[snip]

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.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

Even though a judge has already ruled that this complaint is baseless, Trump took a break from mismanaging a pandemic to inch closer to a Flynn pardon based on it.

Given the increasing likelihood Trump will use the cover of the epidemic to pardon Flynn, it’s worth pointing to another set of evidence that Flynn’s prosecution for lying was sound: he’s not the only one who tried to cover up the Trump Transition’s efforts to undercut President Obama’s sanctions on Russia.

Like Flynn, KT McFarland hid Trump Transition efforts to undercut sanctions at first

In FBI interview reports (302s) released in the BuzzFeed/CNN FOIAs, some details of KT McFarland’s interviews prior to his guilty plea have been released. McFarland was interviewed four times before Flynn’s plea deal became public: August 29 (this 302 has not yet been released), September 14, October 17, and October 19, 2017.  Those 302s show that, at first, KT McFarland downplayed the Trump Transition efforts to undermine Obama’s sanctions on Russia that Mike Flynn got fired and prosecuted for (as well as tried to protect Jared Kushner in his role trying to undercut Obama policies on Israeli settlements).

McFarland’s first interview, on August 29, came in the wake of Mueller’s team acquiring Transition emails from the General Services Administration without notice to the campaign, followed by a warrant to read them. It’s likely her (still unreleased) initial interview and the beginning of her second one were based off a presumption that some emails making it clear the Transition had discussed sanctions would not get shared with Mueller’s team. When she got showed them, she claimed not to remember all details about them.

Her initial interview, as noted, has not been released. The unredacted passages from her second one (she did all pre-Flynn interviews without a lawyer, but in the presence of her spouse, who is a lawyer) show she shaded the truth about things she should have known the FBI had counter-evidence to. (In what follows, I’m bolding things she said in early interviews that her later testimony contradicts.)

For example, in that second interview, McFarland professed to not recall who attended a Presidential Daily Brief on December 28, 2016 where sanctions were discussed.

McFarland was shown a calendar entry for December 28, 2016 and confirmed the entry would have represented a PDB. She sat in the briefing, but did not recall who was there besides [Deputy Director of National Intelligence Edward] Gistaro. It was a small number of people and it took place in a basement studio apartment in the hotel.

Note: Gistaro had already testified at least once before this interview, on June 14, but that was likely focused on Trump’s demand that Dan Coats “help with the [Russian] investigation.” But it’s certainly possible his is one of the interviews in the interim that remain undisclosed.

In addition to her vague memories about meetings at Mar-a-Lago, McFarland also claimed she “did not recall any conversations she may have had with Flynn the day sanctions were announced.” While her description of what Flynn told her about his call with Sergey Kislyak is largely redacted, it’s clear she told the FBI it pertained to “Russian President Putin’s desire for a contemporary video conference after the inauguration.” This is the cover story Flynn asked her to tell the press in January 2017, and it’s part of what Flynn got fired for. Yet she was still relying on it in an interview with the FBI seven months later.

In her third interview, McFarland admitted that sanctions may have come up, but claimed again not to have specific knowledge of it.

News that the Obama Administration planned to impose sanctions on Russia started to come out on December 28, 2016, but they had not been officially announced and specifics were unknown. Sanctions were just one of “several and many things” going on at that time. McFarland, who was in Mar-a-Lago with the President-elect, did not recall what specific conversations she had at which times or to whom she spoke, but sanctions were in the news so it would make sense to her they were among the topics discussed.

In this interview report, McFarland’s explanation for an email involving Tom Bossert discussing sanctions is redacted, but the unredacted parts claim,

McFarland never discussed the specific terms of the sanctions with anyone. She would have told Michael Flynn about how the session with the President-elect went during one of their phone calls.

This claim would have been especially sketchy to the FBI since Flynn had already told the FBI, in January, that he only learned about sanctions from those at Mar-a-Lago.

McFarland also claimed not to remember what she discussed with Flynn when.

She did not have specific recollections about the times of the calls with Flynn or what was discussed in which call. Flynn mentioned several times several issues he intended to discuss with the Russians, and McFarland believed she would have given her theories about the sanctions.

McFarland’s memory started to grow clearer after outlines of Flynn’s testimony were released when he pled guilty on December 1, 2017.

McFarland’s post-Flynn plea memories grow significantly clearer

As the Mike Flynn cooperation addendum laid out, one reason Flynn’s reluctant cooperation was useful is it led others — including, but not limited to, McFarland — to unforget the truth.

[T]he defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate. In some instances, individuals whom the SCO interviewed before the defendant’s guilty plea provided additional, relevant details about their knowledge of key events after his cooperation became publicly.

Days after Flynn’s guilty plea, on December 5, she must have realized that he had given testimony that contradicted hers and informed FBI agents she was in the process of lawyering up. McFarland asked one of the FBI Agents she had been interacting with for the Tom Bossert and Mike Flynn emails she had already testified about, which were included in a December 2 NYT story on Flynn’s plea.

McFarland asked whether SSA [redacted] could provide two emails which he and SA [redacted] had shown to her in her interviews. She did not have the emails, but they were now apparently widely held, including by the New York Times, which published, but grossly misrepresented them. The emails were one from her dated December 29, 2016 in which she discussed President Obama’s three political objectives in imposing sanctions and mentioned Flynn’s scheduled call with the Russian ambassador that evening; and an email from Flynn to her the next day, December 30, 2017, in which Flynn reported on his conversation with the ambassador. McFarland felt she was at a a disadvantage since “everyone in the world” had copies of the emails except for her.

McFarland’s fourth 302 — which the Mueller Report heavily relies on — is heavily redacted. But what’s not redacted shows McFarland remembering details about conversations she had had about sanctions that she had professed not to remember in her earlier interviews.

McFarland and Bannon met on December 29. [redacted] but they also talked about sanctions. [redacted] Bannon told McFarland the sanctions would hurt their ability to have good relations with Russia. [redacted] Bannon thought a Russian escalation would make things more difficult. McFarland thought she told him Flynn was scheduled to talk to the Russian ambassador later that night. [redacted]

McFarland stated that she may have run into Priebus and given him a short version of her conversation with Bannon about the sanctions. [redacted] She may have told Priebus that Flynn was scheduled to talk to the Russian ambassador that night, but was not sure.

[redacted]

McFarland and Flynn spoke on the telephone at around 4:00 pm on December 29.

[redactions and snip]

McFarland knew before the [sic] Flynn’s call that Flynn was going to feel out the Russian ambassador on the overall relationship, knowing that the sanctions would influence it.

There’s a heavily redacted section that nevertheless shows that McFarland provided significant details about the meeting with Trump on December 29 (including that Trump “said he had reason to doubt it was the Russians” who had hacked the DNC). Even with the redactions, it’s clear she discussed what might happen with the sanctions at that meeting. And she admitted that “someone may have mentioned Flynn’s scheduled call with Kislyak as they were ending the meeting.”

Additionally, McFarland laid out all the details of conversations with Flynn she had previously claimed not to remember, both before and after his calls with Kislyak.

[Flynn] told McFarland the Russian response was not going to be escalatory because they wanted a good relationship with the Trump administration.

[snip]

When Flynn and McFarland spoke on December 31, Flynn told McFarland he talked to the Russian ambassador again. He said something to the effect of “Well, they want a better relationship. The relationship is back on track.” Flynn said it was a good call and he thought his own call had made a difference but not the only difference. [redacted] McFarland congratulated Flynn for his work.

In short, contrary to what she claimed in her earlier interviews, McFarland proved she had memories of:

  • Discussions she had with at least Steve Bannon about sanctions before Flynn’s call with Sergey Kislyak, and possibly Reince Priebus
  • The specific times of at least some of her calls with Flynn
  • Details of the meeting at which sanctions were discussed with Trump
  • Specific details of calls between her and Flynn, both before and after his calls with Kislyak

McFarland is not the only one whose memory grew clearer after it became clear Mueller had heard at least one truthful version of what had transpired in late December 2017; the story Bannon initially told, even after Flynn’s plea, almost certainly evolved as well (his later interviews have been withheld thus far, but we know his memories about the WikiLeaks releases got clearer over time). Reince Priebus’ first interview, on October 13, 2017, has not yet been released. The tiny unredacted bits of Priebus’ Janaury 18, 2018 interview, conducted in the wake of Flynn’s plea, showed that he hedged but did admit they may have discussed Flynn’s call in advance.

The consistency with which those who were present at Mar-a-Lago on December 29, 2017 tried not to remember discussing sanctions in advance of General Flynn’s calls, much less what might have gone down with Trump, suggests this is not a matter of Flynn being a rogue liar. Rather, it suggests a concerted effort to downplay what happened and to minimize any involvement Trump had in it, one that was undercut by Flynn’s plea deal.

One story downplaying efforts to undermine sanctions is a lie; multiple stories is a cover-up

That’s why no one should credit Trump’s claims to believe that Flynn was mistreated in his prosecution. Not only has Judge Sullivan ruled that it’s not true, but the available evidence — even with proof that Bill Barr’s DOJ is abusing the FOIA response process to hide the true extent of all this — shows that multiple people with consistent memories of what happened at Mar-a-Lago on December 29, 2017 initially professed not to remember what happened that day.

That’s not Flynn being ambushed and improperly prosecuted. That’s Flynn — who up until he decided to plead guilty was part of the Joint Defense Agreement with the President and others — being the first break in an effort to cover-up what really went down.

And the public record has one more highly damning detail that shows Flynn knew from the start that this was a cover-up.

In the section of the Mueller Report incorporating details Flynn and McFarland unforgot in November and December 2017, it reveals that Flynn intentionally excluded the details about the Kislyak follow-up call about sanctions when he sent McFarland a text message reporting on the call.

The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. 1262 Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. 1263 Hours later President-Elect Trump tweeted, “Great move on delay (by V. Putin).” 1264 Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267

[snip]

According to McFarland, Flynn remarked that the Russians wanted a better relationship and that the relationship was back on track. 1270 Flynn also told McFarland that he believed his phone call had made a difference. 1271 McFarland recalled congratulating Flynn in response. 1272 [my emphasis]

In her second interview, months before she unforgot that they had had a self-congratulatory conversation about Flynn’s success in undermining Obama’s efforts to punish Russian for interfering in the election, McFarland also claimed not to be concerned that Flynn hadn’t mentioned sanctions in a text he sent her after the call. “She did not recall being concerned that Flynn did not mention sanctions in this email.”

Except that it would not be a matter of concern. It would be a matter of knowing that Flynn had created a false record of what happened. And months later, she would admit that she did know that was a false record. This appears to be the text (which she forwarded as an email) that she tried to obtain from the FBI once she realized that Flynn had flipped.

None of this will prevent Trump from pardoning Flynn. But it does provide reason why Judge Reggie Walton should review the 302s of those involved in the December 2017 events even as he reviews the full Mueller Report, which almost certainly includes an explanation of why Mueller did not charge McFarland for her initial misleading comments. The public deserves to have all the evidence that, in pardoning Flynn, Trump won’t be pardoning someone he believes to have been ambushed and who as a result told a misleading story. He’ll be pardoning the one person who paid a price for covering up the Trump Transition’s efforts to undercut sanctions imposed to punish Russia for tampering in the 2016 election.

Mike Flynn Commits to Waiving Privilege

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When it got reported that Bill Barr had ordered St. Louis US Attorney Jeffrey Jensen to second-guess the Mike Flynn prosecution, I thought that might rescue Flynn from a very precarious step: a hearing on whether or not he can withdraw his guilty pleas based on a claim that his very competent Covington team gave him incompetent advice. Even if Flynn could make such a compelling argument, it would still leave him exposed for perjury charges.

The two sides just submitted an order and stipulation officially waiving Flynn’s privilege. This will give the US an opportunity to get Covington’s testimony and records about warnings they gave Flynn on any possible conflict and an opportunity to explain how they passed on information about DOJ’s certainty that he had lied about Russia, the current bases for his ineffective assistance of counsel claim. Given that records already published make it clear Flynn lied to his lawyers, it’s likely the Covington will be able to establish that they gave Flynn competent counsel (and that he stiffed them on payment).

Flynn did, however, protect himself in one way. Originally, prosecutor Jocelyn Ballantine had specifically asked to be able to use anything obtained from Covington in a perjury prosecution.

This limitation on the use of information should not, however, preclude the government from prosecuting the defendant for perjury if any information that he provided to counsel were proof of perjury in this proceeding.

But the stipulation specifically prohibits that.

12. The government agrees that it will not use any information or documents or records or any other writing that it obtains under this Stipulation for any purpose other than for further litigation of Mr. Flynn’s motions to withdraw his guilty plea, and any further litigation on those motions, including any appeals and/or collateral attacks.

13. The parties agree that nothing in this Stipulation would prevent the government from prosecuting Mr. Flynn for perjury in connection with the litigation of his Motions to withdraw his guilty plea. In light of Paragraph 12 of this Stipulation, however, the government agrees that in any such prosecution, it will not use any information or other material that it obtained under this Stipulation. Straker, 258 F. Supp. 3d at 158.

Flynn’s still at some exposure for perjury, because his existing statements are wholly incompatible.

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

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

And it’s unclear to me whether the government could rely on Covington witnesses against Flynn if they ultimately want to lay out how he lied to them about his work for Turkey.

But for now, Covington will have an opportunity to defend their reputation in court.

Bill Barr Trying to Dig Sidney Powell out of the Hole She Dug for Mike Flynn

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Both NYT and NBC are reporting that Bill Barr has gotten yet another US Attorney (after he gave CT’s John Durham and WDPA’s Scott Brady similar politicized errands), St. Louis’ Jeffrey Jensen, to politicize DOJ. Jensen has been tasked — along with some of Jeffrey Rosen’s aides — to second guess the investigation of Michael Flynn and other non-public cases (though probably ones that include Jared Kushner and Paul Manafort).

This latest assault on judicial independence started two weeks ago.

Over the past two weeks, the outside prosecutors have begun grilling line prosecutors in the Washington office about various cases — some public, some not — including investigative steps, prosecutorial actions and why they took them, according to the people. They spoke on condition of anonymity to discuss the sensitive internal deliberations.

That’s about the time Sidney Powell submitted what amounted to a second motion to dismiss for prosecutorial misconduct, which prosecutors correctly explained included no new claims of misconduct but a whole bunch of things that Emmet Sullivan had already dismissed in a meticulous 92-page opinion, with appendix.

That — plus the fact that Powell flip-flopped on whether or not prosecutors should get a continuance to be able to get Covington lawyers to explain how much Mike Flynn lied to them for his FARA filing — likely means Sidney Powell got a heads up about this.

Back in June, it seems clear, Bill Barr told Sidney Powell it would be safe to blow up Mike Flynn’s plea deal, perhaps believing that things he saw on Fox News — including a bunch of hoaxes that Sara Carter had started, and which FBI had already investigated multiple times. Powell proceeded to make Flynn’s legal woes worse and worse and worse. Alarmingly, she had Mike Flynn submit a sworn statement that radically conflicts with other sworn statements he already made. In other words, based on Bill Barr apparent reassurances that Flynn should pursue an absolutely insane legal strategy, Flynn turned his probation sentence into additional perjury exposure.

And so now Bill Barr is sending off his minions to try to undo the damage that Flynn and Powell created for themselves by trying to suggest that multiple lies to the FBI somehow amounted to an ambush because Flynn was so sure the FBI was on his side that he lied convincingly.

The Timeline Suggests Bill Barr Removed Jesse Liu to Intervene for Trump’s Rat-Fucker

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Far be it for me to doubt Bill Barr’s ability to manufacture a cover-up. He’s damn good at it, that’s why he was hired, and he’s got a lot of power to use to execute one.

But it’ll be harder this time around than it was for Poppy Bush, in part because Barr’s principal has the propensity to go off half-cocked, the frothy right doesn’t think rationally, and Barr himself may believe what he sees on Fox News more than what he sees in court dockets, to the extent he even reviews court dockets.

That’s particularly true given the timeline leading up to the Tuesday Night Massacre, because it appears to show that Bill Barr removed Jessie Liu — and then Trump withdrew her nomination excusing that removal — mostly (at least as far as what is visible thus far) to intervene for Trump’s rat-fucker, Roger Stone.

At least as the timing of the DOJ filings reflect, Barr intervened with the strategy he claimed to Pierre Thomas to apply with Roger Stone with Mike Flynn, providing reasons for Judge Emmet Sullivan to sentence lightly, but leaving it up him. Importantly, Jessie Liu proved willing to do that on January 29; she signed the softened Flynn sentencing memo (though it’s possible Trump submitted her nomination on January 6 in response to the discussions around the initial, harsher memo).

The next day, per dates included in the Roger Stone sentencing memo, DOJ submitted an objection to the January 16 Presentence Investigation Report.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Possibly, given footnote 2, they added language to substantiate the extent to which Stone went to sustain his cover-up.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing.

That’s when Barr appointed Timothy Shea as interim US Attorney, effective just two business days later, the one way to take Jessie Liu out of the command structure immediately.

According to Barr’s interview, Shea started asking questions about Stone’s sentencing a week before the memo got submitted. That means Shea spent his first day focused on the Stone sentencing. That makes it hard to believe he was installed for any other reason but to help Stone out.

The first Trump-related motions — basically to remove Flynn’s attorney-client privilege so Covington’s lawyers can expound on how many lies Flynn told them about Russia and his work for Turkey — showed no discernible Barr influence (though Flynn’s reversal on continuing these discussions may have).

Barr provided several somewhat contradictory explanations for what happened on February 10 to Thomas. He claims that Shea “came by” DOJ and alerted Barr that line prosecutors still wanted to recommend the 7-9 year sentence calculated by the Probation Office. Then Barr suggested that he got involved here because line prosecutors who have decades of experience are too junior to make “life or death” decisions.

What other industry allows life or death decisions to be made by the most junior level of the business.

Not long later, however, Barr denied intervening in a case.

Most cases don’t come up to the Attorney General because people are doing a good job.

Some people saying AG intervening in a case. That’s preposterous! We have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the Attorney General’s decision to decide it.

But here’s the key: Barr claims he only got involved in Stone’s sentencing memo because “difficult issues” got escalated.

Except they only got escalated because he had just installed his hand-picked flunky to oversee this. This wouldn’t have been escalated if Liu were still in place.

All the evidence suggests that Bill Barr replaced Jessie Liu to give himself an excuse to intervene personally in Stone’s sentencing.

And what will it get him? I suspect Judge Amy Berman Jackson would never have sentenced Stone to 7 to 9 years —  the harsher sentence — in any case (especially given that she only gave Paul Manafort 7.5 years). She probably would have given Stone 4-5 years and might still, a slight enhancement for the threat against Randy Credico, but not much. But this drama about sentencing is likely not the big question, given that Stone is likely to have his sentence commuted, one way or another, on November 4, the day after election day. So the real question is how much of the next nine months he serves in prison, which ABJ has some control over, especially given Stone’s propensity to make threats when he’s not in prison or gagged. If ABJ sentences Stone to 4-5 years — close to what Barr has now signed off on in very public and intrusive fashion — but sends him to prison right away, it’s less likely Trump will do something immediate, like pardon him. Whereas, had Barr not intervened, it would have had the same effect but without Barr’s tacit approval for a 3-4 year sentence.

I can’t decide whether the plan here is to make judges look unreasonable — which could happen when Sullivan sentences Flynn to prison, except for the really atrocious details about how Flynn was secretly working for a frenemy government while purportedly advising Trump on national security issues. Or whether it’s to minimize sentence time — which Barr hasn’t done by endorsing a sentence just a year or so less than what ABJ might be inclined to give anyway.

Meanwhile, after inventing a way to remove Jessie Liu immediately, Lou Dobbs and a bunch of other frothers convinced the President to withdraw her nomination, possibly encouraged by the threat of questions about all this in her confirmation hearing, which was scheduled for yesterday. She resigned yesterday from whatever desk Trump parked her at to make way for Shea. She’s a pretty loyal Trumpster, so it’s unclear whether she’ll go quietly. But if she chooses, as a private citizen she’s now entitled to respond to subpoenas from Congress, and between her and Jonathan Kravis (who also resigned entirely from DOJ), she can explain what is really going on.

Meanwhile, Shea is now on the clock: he has until June 2 to complete shutting down any investigations into Trump. Unless the Senate confirms a successor that has not yet been confirmed, then Chief Judge Beryl Howell will be able to pick his replacement. And she was none too happy about this week’s drama.

December 10, 2019: Trump announces intent to nominate Jessie Liu to Treasury

January 4: DOJ asks for one more day to submit Flynn supplemental sentencing memorandum; signed by Liu

January 6: Trump nominates Liu to Treasury

January 7: DOJ submits harsh sentencing memo that nevertheless asks for guidelines sentence; signed by Liu

January 16: Probation Office completes Stone PSI recommending 7-9 years

January 22: DOJ notices court that they’ve provided the last of the Flynn 302s; signed by Liu

January 29: DOJ submits reply sentencing memo, with probation recommendation; signed by Liu

January 30: DOJ submits objection to Stone PSI; Barr appoints Timothy Shea DC US Attorney, effective February 3

February 3: Shea starts; per ABC interview, starts asking questions about the sentencing

February 5: Senate acquits Trump

February 9: DOJ files motion to continue briefing schedule and motion to confirm waiver of attorney-client privilege; signed by Jocelyn Ballentine; Brandon Van Grack not on motions, but probably in preparation for hearing

February 10: Shea “comes by” DOJ and tells Barr the team wanted to recommend 7-9 recommendation; Barr “under the impression” that “what was going to happen was what I had suggested;” DOJ files sentencing memo recommending 7-9 years; Barr claims he decided at night to amend recommendation

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

4:40: Supplemental sentencing memo created, signed by John Crabb Jr

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

February 12: Trump withdraws Liu’s nomination; DOJ submits response to motion to dismiss; signed by Brandon Van Grack; Jessie Liu resigns from Treasury desk she was parked at to make way for Shea

February 13: Bill Barr does staged interview where he dodges any real explanation for his interference

June 2: Timothy Shea’s interim appointment expires

Tea Leaves: Brandon Van Grack Remains on the Mike Flynn Case

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When the government moved Sunday to have Emmet Sullivan recognize that Mike Flynn had waived attorney-client privilege so Flynn’s former attorneys could testify about how he lied to them, Brandon Van Grack was not on the filing. In the wake of yesterday’s resignations from the Roger Stone team, however, Van Grack is on the filing the government submitted today in Flynn’s case, their response to Flynn’s second attempt to have the entire prosecution thrown out.

That suggests that, as seemed likely at the time, the government is prepared to put Van Grack on the stand if Sullivan does have a hearing with sworn witnesses.

Meanwhile, today’s filing reads like this:

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Flynn’s complaints have nothing to do with the crime he pled guilty to, lying to the FBI on January 24, 2017.

Across 11 pages, prosecutors really did mention the irrelevance of Sidney Powell’s latest complaints to the charges against her client ten different times. Just one other thing broke up the monotony of that and repeated descriptions of how FBI misconduct pertaining to FISA applications targeting Carter Page don’t affect Flynn. That’s when the government noted that Powell’s accusation that the government committed a Brady violation for not turning over 302s from the interviews of Flynn’s lawyers in advance of the Bijan Kian trial would require a time machine.

Moreover, the government could not have disclosed those interview reports to the defendant before he pleaded guilty because they occurred six months later.

I still think Judge Emmet Sullivan might ask prosecutors for an ex parte version of the Electronic Communication that came out of the August 17, 2016 briefing.

But otherwise, he’s likely to agree with prosecutors: Powell continues to raise shit that has nothing to do with the case at hand.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All this time, Sullivan has been unusually quiet.

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

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

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

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

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

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

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

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

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

Almost no mention of his lies about Russia

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

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

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

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

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

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

So Flynn blames his former lawyers.

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

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

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

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

But wait.

There’s more.

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

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

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

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

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

Cursory consideration of Cray

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

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

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

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

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

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

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

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

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

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

THE DEFENDANT: No.

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

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

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

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

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

But there are two problems with her argument.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Be careful what you wish for

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

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

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

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

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

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

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

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

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

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

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

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

Mike Flynn Seizes the Rope to Hang Himself With: Flynn’s Motion to Dismiss Carter Page’s Non-Existent Plea

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

I’m collectively titling my posts on them, “Mike Flynn Seizes the Rope to Hang Himself,” which is the advice Rob Kelner gave his then-client in December 2018 when Judge Emmet Sullivan swore him in to reallocute his guilty plea, effectively arguing that if Flynn withdrew his plea, it would lead to worse consequences. Flynn’s current lawyer, Sidney Powell, argues that advice was objectively incompetent. I predict the outcome of the next few weeks will show Kelner had the better judgment.

This post from yesterday covers the government reply to Flynn’s sentencing memo.

This post will focus on Flynn’s motion to dismiss for misconduct, a 27-page motion that Flynn submitted yesterday with neither warning nor pre-approval from Sullivan. Flynn has made much of this argument before (and Sullivan has rejected it) in a filing that argued,

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution. When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime—while taking affirmative steps to ensnare him by refusing to follow procedures designed to prevent such inadvertent missteps—this amounts to conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct.

[snip]

As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

In a footnote in yesterday’s filing, Flynn lawyer Sidney Powell explains that, no, the last time she tried this argument, which Sullivan rejected in an unbelievably meticulous 92 page opinion, wasn’t actually her motion to dismiss, this is,

Contrary to a suggestion in this Court’s recent opinion, Mr. Flynn did not previously move to dismiss the case against him. ECF No. 144 at 2. As the docket sheet and this Court’s recital of motions show, this is Mr. Flynn’s only Motion to Dismiss. In Mr. Flynn’s previous filings, he made clear he would ultimately move for dismissal, that the evidence requested in his Brady motion would further support the basis for dismissal, and that the case should be dismissed.

Particularly given that much of this repeats what Powell said in the earlier motion, the claim that this is the real motion to dismiss probably won’t sit well with Judge Sullivan. But Powell has to try again, because (as I’ll show) her motion to dismiss doesn’t actually claim that Flynn is innocent of lying to the FBI about his call with Sergey Kislyak — he says the opposite. So this motion to dismiss appears designed to explain why Flynn should not be held accountable for that lie.

Powell justifies doing so because she claims she found new damning information in the IG Report on Carter Page. (She also complains that she received Flynn’s 302s since the prior motion, but presents not a single piece of evidence from them; as I’ll show in my third post on these filings, she’s probably going to regret raising them.)

Such exculpatory evidence and outrageous misconduct includes that on December 9, 2019, the Inspector General of the Department of Justice (“DOJ”) issued its 478-page report on the “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” (“IG Report”).2 The IG Report illustrates the misconduct by the government as further detailed below.

[snip]

Additionally, the IG Report shows that the government long suppressed evidence of shocking malfeasance by the leadership of the FBI and Supervisory Special Agent 1 (“SSA 1”) that was favorable to Mr. Flynn’s defense. For these reasons, and those outlined in prior briefing, Mr. Flynn moves to dismiss this entire prosecution for outrageous government misconduct and in the interest of justice.

In a probably ill-considered move, Powell blames Sullivan for not considering the IG Report in his previous opinion.

Despite the defense, the government, and this Court agreeing to abate the schedule in this case because of the pending and admittedly-relevant IG Report (ECF No. 140 and this Court’s Minute Order of November 27, 2019), this Court denied Mr. Flynn’s Motion to Compel Production of Brady Evidence without allowing for additional briefing in light of that report or considering any of the deliberate government misconduct it disclosed. ECF Nos. 143 and 144. Mr. Flynn now moves to dismiss the indictment for the additional egregious misconduct documented in the IG Report, other recently produced materials, all previously briefed issues, and in the interest of justice.

A week passed between the time the IG Report came out — which has just one small section relating to Flynn — and the date Sullivan issued his opinion. It is Powell’s job to ask him to consider any new information in it, not his job to cull through the report and find out if anything is relevant. She did not do so. Which is one of many reasons why Sullivan would be in his right to just dismiss this as untimely.

As I note in this thread, much of what follows is either a repetition of complaints that Sullivan already rejected or a claim that Mike Flynn, honored General of thirty years, is actually Carter Page, maligned gadfly, because they describe things that did injure Page but did not injure Flynn and are utterly irrelevant to the lies Flynn told on January 24, 2017.

  • Asks that Sullivan rely on a Ninth Circuit opinion on the Bundy family to reconsider Brady violations he already ruled did not happen.
  • Revisits a Jim Comey comment that was briefed before Flynn pled guilty the last time and Powell’s conspiracy theories about a draft 302 that she claims differs from the notes and the released 302s which are all consistent.
  • Invokes Ted Stevens by invoking the Henry Shuelke report, which laid out problems with the Senators prosecution, but which Sullivan has already said is an inapt comparison.
  • Mixes up the 2017 FISA order that shows (in part) that Flynn, personally, presided over FISA abuses with the 2018 FISA order that shows Chris Wray’s FBI committed querying violations that affected thousands (quite possibly in an attempt to find out who leaked details of Flynn’s comments to Sergei Kislyak).
  • Claims that the Carter Page FISA allowed the FBI to illegally obtain the communications of “hundreds of people, including Mr. Flynn,” which is a claim that doesn’t show up in the IG Report (Powell cites to it “generally,” which is her tell in this motion that she’s making shit up); while it’s possible emails from the campaign (possibly group emails on National Security) involving both Page and Flynn were collected, there is zero chance any of them pertain to the lies Flynn told on January 24, 2017. Moreover, there is virtually no chance that Flynn was communicating with Carter Page after April 2017 via encrypted messaging apps — months after both had been ousted from Trump’s circles because of their problematic interactions with Russians — which is what it likely would have taken to have been collected under the applications deemed problematic by FBI.
  • Twice claims that Flynn’s obligation (which he fulfilled) to tell DIA when he went traipsing off to RT Galas in Russia equates to CIA’s designation of Carter Page as an acceptable contact and notes that Sullivan already ruled that wasn’t exculpatory on the charges before him (the government has made it clear Flynn’s DIA briefing was actually inculpatory).
  • Claims SSA1 — whom Powell asserts, probably but not necessarily correctly, is the second Agent who interviewed Flynn — supervised Crossfire Hurricane, but doesn’t note that was only until December 2016, at least four weeks before Flynn lied to FBI agents on January 24, 2017; Powell repeatedly claims, falsely, that SSA1 supervised Crossfire Hurricane during the entire period when Carter Page was under surveillance.
  • Insinuates, with no evidence, that SSA1 knew that Case Agent 1 had excluded comments from George Papadopoulos that the frothy right believes are exculpatory but which the FBI judged correctly at the time were just a cover story.
  • Claims falsely that Lisa Page had a role in opening an investigation into Flynn.
  • Complains that the FISA applications made statements about Stefan Halper that were true but not backed by paperwork in the Woods File, even though (contrary to Flynn’s conspiracy theories) Halper never spoke with Flynn as part of tihs investigation.

Pages and pages into this, Powell admits that actually all of this would matter if she were representing Carter Page, but she claims (with no evidence, and given the scope of the Page warrants, there would be none) that it nevertheless injures her client.

While Mr. Flynn’s case is not even the focus of the IG Report, the Report reveals illegal, wrongful, and improper conduct that affected Mr. Flynn, and is the subject of an ongoing criminal investigation by United States Attorney John Durham.

Even where the IG Report does describe something that affected Flynn directly — in SSA1’s inclusion in Trump’s first briefing, in part, to see what kinds of questions he was asking — Powell manages to lard it with false claims. On top of misrepresenting how long SSA1 oversaw the investigation into Trump’s flunkies (noted above and exhibited specifically below), Powell suggests that SSA1 snuck into the August 17, 2016 intelligence briefing Flynn attended as Trump’s top national security advisor and had no purpose but to observe her client.

There were two FBI agents who interviewed Mr. Flynn in the White House on January 24, 2017—Agent Peter Strzok and SSA 1. The IG Report confirms both participated in government misconduct. As explained in further detail below, not only was Strzok so biased, calculated, and deceitful he had to be terminated from Mueller’s investigation and then the FBI/DOJ, but it has also now been revealed that SSA 1 was surreptitiously inserted in the mock presidential briefing on August 17, 2016, to collect information and report on Mr. Trump and Mr. Flynn. Moreover, SSA 1 was involved in every aspect of the debacle that is Crossfire Hurricane and significant illegal surveillance resulting from it. Further, SSA 1 bore ultimate responsibility for four falsified applications to the FISA court and oversaw virtually every abuse inherent in Crossfire Hurricane— including suppression of exculpatory evidence. See generally IG Report.

[snip]

Shockingly, as further briefed below, SSA 1 also participated surreptitiously in a presidential briefing with candidate Trump and Mr. Flynn for the express purpose of taking notes, monitoring anything Mr. Flynn said, and in particular, observing and recording anything Mr. Flynn or Mr. Trump said or did that might be of interest to the FBI in its “investigation.” IG Report at 340

[snip]

More specifically, as the Inspector General explained further in his testimony to Congress on December 11, 2019, SSA 1 surreptitiously interviewed and sized-up Mr. Flynn on August 17, 2016, under the “pretext” of being part of what was actually a presidential briefing but reported dishonestly to others as a “defensive briefing.”

[snip]

Strzok and Lisa Page texted about an “insurance policy” on August 15, 2016.20 They opened the FBI “investigation” of Mr. Flynn on August 16, 2016. IG Report at 2. The very next day, SSA 1 snuck into what was represented to candidate Trump and Mr. Flynn as a presidential briefing. IG Report at 340. [my emphasis]

The overwhelming bulk of her complaint about this is that — she claims — SSA1’s participation was secret. Reading this motion, you’d think he was hidden under the couch while the briefing was conducted. His presence, of course, was in no way surreptitious. What was secret was that Flynn was under investigation and SSA1 was overseeing it.

In one of her discussions of the briefing, Powell quotes the part of the IG Report that refutes her suggestions that SSA1 was only in this briefing to observe Flynn.

In August 2016, the supervisor of the Crossfire Hurricane investigation, SSA 1, participated on behalf of the FBI in an ODNI strategic intelligence briefing given to candidate Trump and his national security advisors, including Flynn, and in a separate briefing given to candidate Clinton and her national security advisors. The stated purpose of the FBI’s participation in the counterintelligence and security portion of the briefing was to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S.’ However, we found the FBI also had an investigative purpose when it specifically selected SSA 1, a supervisor for the Crossfire Hurricane investigation, to provide the FBI briefings. SSA 1 was selected, in part, because Flynn, who would be attending the briefing with candidate Trump, was a subject in one of the ongoing investigations related to Crossfire Hurricane. SSA 1 told us that the briefing provided him ‘the opportunity to gain assessment and possibly some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview…I would have that to fall back on.’

As the passage she quotes makes clear, that was just part of the reason why he was selected. She doesn’t mention that, as a senior counterintelligence agent, SSA1 was appropriate to give the briefing in any case, and in fact did give the equivalent first briefing to Hillary, as well.

In one place, however, Powell totally misrepresents what the purpose of this briefing was claiming that it was the defensive briefing about specific threats to the candidate.

While SSA 1’s stated purpose of the presidential briefing on August 17, 2016, was “to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S,’” IG Report at xviii (Executive Summary), the IG Report confirmed that, in actuality, the Trump campaign was never given any defensive briefing about the alleged national security threats. IG Report at 55. Thus, SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for “investigative purposes” anything Mr. Flynn and Mr. Trump said in that meeting. IG Report at 408. The agent was there only because Mr. Flynn was there. IG Report at 340. Ironically, Mr. Flynn arranged this meeting with ODNI James Clapper for the benefit of candidate Trump.

As the IG Report makes clear, these are different things. The IG Report even provides several different explanations for why the FBI did not give Trump a defensive briefing that Russia was trying to influence his campaign, but which Powell doesn’t include. Andrew McCabe’s explanation was particularly prescient.

[T]he FBI did not brief people who “could potentially be the subjects that you are investigating or looking for.” McCabe told us that in a sensitive counterintelligence matter, it was essential to have a better understanding of what was occurring before taking an overt step such as providing a defensive briefing.

You couldn’t brief Trump on a potential Russian threat with Flynn present because Flynn was considered — because of his past close ties to the GRU and his paid appearances with Russian entities, including one where he met Putin — one of the most likely people for Russia to have alerted about the email hack-and-dump plan. And, as I noted, there was a bunch of language about counterintelligence issues in the government’s original sentencing memo specifically pertaining to Flynn that should concern him if he weren’t so busy producing fodder for the frothy right. So, in fact, the FBI was right to worry (and I suspect we may hear more about this).

Moreover, as this entire effort to blow up the plea deal emphasizes, Flynn turned out to be an egregious counterintelligence risk for other reasons, as well: the secret deal he was arranging with Turkey even as this briefing occurred, which he explained, at length, under oath, to the grand jury. That is, this proceeding makes it clear that the FBI was right not to trust Mike Flynn, because, days before this briefing, his firm had committed, in secret to working on a frenemy government’s payroll.

This is tangential to Powell’s trumped up complaints about the only thing the IG Report says that directly affected her client. But — as with so much of this stunt — my suspicion is that if she presses this issue it will backfire in spectacular fashion.

In any case, the main takeaway from this motion to dismiss the plea is that virtually all the new stuff that Judge Sullivan hasn’t already ruled was irrelevant in meticulous fashion doesn’t affect Mike Flynn, it affects Carter Page. And the stuff that does affect Flynn directly is probably not something he wants to emphasize before Sullivan weighs the gravity of his lies.

More importantly, for the motion to withdraw his plea, nothing here undercuts the fact that Mike Flynn pled guilty to his lies about Russia.

Mike Flynn Seizes the Rope to Hang Himself With: Probation for Petraeus

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The government and Mike Flynn submitted several motions today:

Eventually, I’ll hit them all in this post. But for now, I’m going to address just the government reply to Flynn’s sentencing memo, because I read it very very differently than virtually everyone who has read it.

A number of people are shocked by what seems to be the government’s deference to Mike Flynn in the memo, particularly their recommendation for a guidelines sentence — which might include probation. It’s true, the memo mentions probation over and over.

As set forth below, the government maintains that a sentence within the Guidelines range – to include a sentence of probation – would be appropriate and warranted in this case.

[snip]

Here, the applicable Guidelines range already encompasses a potential penalty of probation and there is no lower possible penalty for the offense of conviction.

[snip]

Based on all of the relevant facts and for the foregoing reasons, the government submits that a sentence within the Guidelines range of 0 to 6 months of incarceration is appropriate and warranted in this case, agrees with the defendant that a sentence of probation is a reasonable sentence and does not oppose the imposition of a sentence of probation.

The memo then goes on to nod to the issues Flynn raised. It acknowledges, then rebuts, Flynn’s complaints about what he claims is the government asking him to lie about FARA. But, the government notes, regardless of who is right, it wouldn’t change the guidelines sentence.

Importantly, regardless of whether or not the Court considers the defendant’s FARA false statements in fashioning its sentence, the applicable Guidelines range is still 0 to 6 months of incarceration.

It notes Flynn’s apparent backtracking on acknowledgement of responsibility. But, the government notes, regardless of who is right, it wouldn’t change the guidelines sentence.

But again, this makes no difference to the applicable Guidelines range – a two-level reduction in his base offense level would still result in a range of 0 to 6 months of incarceration.

Thus far, the government is doing precisely what it did in its own sentencing memo, emphasize that the government position has not changed. It asked for a guidelines sentence in December 2018, it asked for a guidelines sentence earlier this month, and it is recommending a guidelines sentence here. Anything outside those guidelines is Judge Emmet Sullivan’s decision.

Where the memo is absolutely fucking genius, though, is where it addresses Flynn’s emphasis that because he was a General forever, he should get probation. Every memo Flynn has submitted of late has basically argued that because he gave his life to the country, he should get special treatment.

As the government notes, in the very last words of their memo, that has happened in the past.

In terms of comparative sentences in cases involving arguably similarly-situated defendants, we note that there are several cases involving high-ranking government officials where probationary sentences were imposed. Former National Security Advisor Sandy Berger stole classified information from the National Archives, destroyed that information, and then lied to the government about his conduct. At the government’s recommendation, based in part on Berger’s cooperation with the government, he received a probationary sentence. See Gov’t Sent’g Mem. at 9, United States v. Berger, No. 05-mj-00175 (D.D.C. Sept 6. 2005) (Doc. 13); see also Factual Basis for Plea (D.D.C. Apr. 1, 2005) (Doc. 6). Likewise, after General David Petraeus pleaded guilty to the unauthorized retention and removal of classified documents, in violation of 18 U.S.C. § 1924, he received a probationary sentence. United States v. Petraeus, No. 15-cr-47 (W.D.N.C.). Here, the Court should consider these and other arguably analogous cases, along with all of the other relevant facts in this case, in fashioning a sentence that is “sufficient but not greater than necessary” to satisfy the statutory sentencing requirements under Title 18, United States Code, Section 3553(a).

Boy oh boy do these prosecutors look reasonable, huh, noting that powerful people sometimes get probation for things the little people go to prison for.

Except we know how Emmet Sullivan feels about Generals who think they should get special treatment because they’re high-ranking Generals, because he said so explicitly when Rob Kelner raised David Petraeus back in December 2018.

MR. KELNER: In addition, I would note there have been other high profile cases, one involving a four-star general, General Petraeus.

THE COURT: I don’t agree with that plea agreement, but don’t —

[snip]

THE COURT: All right. Let me just say this. I probably shouldn’t. Having said that, I probably shouldn’t. I don’t agree with the Petraeus sentence. I’m sorry. I don’t see how a four-star general gives classified information to someone not authorized to receive it and then is allowed to plead to a misdemeanor, but I don’t know anything about it. Maybe there were extenuating circumstances. I don’t know. It’s none of my business, but it’s just my opinion.

And that has no impact — I would not take that into consideration in whatever sentence I impose here. Just based upon what I know about that case, I just disagreed with it. That’s all.

Yes, the prosecutors look totally docile in this memo. They’re disputing Flynn’s point, but ultimately they’re recommending the same thing they’ve always recommended, a guidelines sentence. They’re doing that because it inoculates them against any claim that their decision not to have Flynn testify affected his sentence, and they’re doing so to make clear that what Flynn is doing, in requesting to blow everything up, he’s doing even though the same guidelines sentence remains on the table. What comes next will be entirely his own fault.

And, yes, they mention probation, just like Flynn did. But in doing so, they almost certainly did so in a way that only exacerbates Sullivan’s innate disgust with powerful people who ask for special treatment.