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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An ongoing Kraken conspiracy to pay off the pardon

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

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

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

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

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

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

John Durham Has Unaltered Copies of the Documents that Got Altered in the Flynn Docket

Bill Barr could come to regret his neat effort to place a ticking time bomb inside the Joe Biden DOJ, because John Durham has evidence in hand that Bill Barr’s DOJ tampered with documents.

I’ve been thinking … There’s something that doesn’t make sense about Bill Barr’s roll-out of the order making John Durham a Special Counsel. For the better part of a year, Barr has been saying that Durham could roll out actual indictments before the election, since none of the people he would indict were candidates. Yet Barr claimed, in his order, that he decided (not Durham) that, “legitimate investigative and privacy concerns warrant confidentiality” until after the election. And then he waited almost an entire month before he revealed the order. He did so in spite of adopting 28 CFR 600.9, which otherwise requires notice to Congress, to govern this appointment.

Let me interject and say that while Barr’s appointment of a DOJ employee, US Attorney John Durham, violates the Special Counsel statutes, that’s not the authority under which Barr appointed Durham. He did so under 28 USC 509, 510, 515, which is what Mueller was technically appointed under. Thanks to the Mueller investigation and some well-funded Russian troll lawyers, there’s a whole bunch of appellate language authorizing the appointment of someone under 28 USC 515 but governed under 28 CFR 600.9. The unusual nature of the appointment would provide President Biden’s Attorney General an easy way to swap Durham for Nora Dannehy (who as a non-departmental employee would qualify under the Special Counsel guidelines), and given her past involvement in the investigation, it should suffer no loss of institutional credibility or knowledge. But it doesn’t damage Durham’s legal authority in the meantime.

Barr probably lied about the significant reasons to delay notice to Congress. According to the AP, Durham is no longer focused on most of the scope he had been investigating, to include George Papadopoulos’ conspiracy theories and GOP claims that the CIA violated analytic tradecraft in concluding that Vladimir Putin affirmatively wanted Trump elected. He is, according to someone in the immediate vicinity of Barr, focused just on the conduct of FBI Agents before Mueller’s appointment, even though the language of this appointment approves far more.

The current investigation, a criminal probe, had begun very broadly but has since “narrowed considerably” and now “really is focused on the activities of the Crossfire Hurricane investigation within the FBI,” Barr said. He said he expects Durham would detail whether any additional prosecutions will be brought and make public a report of the investigation’s findings.

[snip]

A senior Justice Department official told the AP that although the order details that it is “including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller III,” the Durham probe has not expanded. The official said that line specifically relates to FBI personnel who worked on the Russia investigation before the May 2017 appointment of Mueller, a critical area of scrutiny for both Durham and for the Justice Department inspector general, which identified a series of errors and omissions in surveillance applications targeting a former Trump campaign associate.

The focus on the FBI, rather than the CIA and the intelligence community, suggests that Durham may have moved past some of the more incendiary claims that Trump supporters had hoped would yield allegations of misconduct, or even crimes — namely, the question of how intelligence agencies reached their conclusion that Russia had interfered in the 2016 election.

We know from the Jeffrey Jensen investigation and documents Barr otherwise released where Barr thought John Durham was heading. There are questions about who knew about credibility problems of Christopher Steele’s primary source Igor Danchenko (though the GOP has vastly overstated what his interview said, ignoring how much of the dossier it actually corroborated, Danchenko’s later interviews, and FBI’s later interviews of one of his own sources). There are some analysts who questioned the viability of the investigation into Flynn; it appears they asked to be removed from the team.

And Jensen, at least, seemed to want to claim that Peter Strzok got NSLs targeting Flynn in February and March 2017 that he had previously refused to approve. Someone seems to have convinced Flynn investigative agent Bill Barnett that those NSLs, which were lawyered by Kevin Clinesmith, were illegal, but given the predication needed for NSLs that seems a wild stretch. Plus, it would be unlikely (though not impossible) for Durham to indict Clinesmith without a Durham-specific cooperation agreement before if he believed Clinesmith had committed other crimes. I mean, it’s possible that Clinesmith, under threat of further prosecution, is claiming that mere NSLs are illegal, but I’d be surprised. Not least because after these NSLs, Strzok worked hard to put a pro-Trump FBI Agent in charge of the Flynn investigation.

Occam’s razor suggests that Durham asked for the special counsel designation because he wants to be permitted to work through these last bits and finish up the investigation, along with the prior authority (which Mueller did not have) to publish his findings.

Occam’s razor also suggests that the reason Barr didn’t reveal this change of status until this week has everything to do with pressure from Trump and nothing to do with investigative equities and everything to do with using this investigation like he has all of his US Attorney led investigations, as a way to placate Trump. Trump has reportedly been complaining that Barr didn’t do more to undermine the election, and so he rolled this out as a way to buy space and time.

Axios reports that it may not work. Trump might fire Barr and replace him with someone who would order that Durham report right away.

Behind the scenes: Within Trump’s orbit, sources told Axios, Tuesday’s revelation was seen as a smokescreen to forestall the release of the so-called Durham report, which senior administration officials believe is already complete — and which Barr had ruled out issuing before the election.

  • Another senior administration official disputed that assessment, saying: “The reason the Attorney General appointed John Durham as Special Counsel is because he’s not finished with his investigation,” and that Barr “wanted to ensure that John Durham would be able to continue his work independently and unimpeded.”
  • Trump has been ranting about the delay behind the scenes and mused privately about replacing Barr with somebody who will expedite the process. But it’s unclear whether he will follow through with that, per sources familiar with the conversations.
  • Barr met with White House chief of staff Mark Meadows and other officials in the West Wing Tuesday afternoon.

Except that doesn’t work. If Trump were to name John Ratcliffe Acting Attorney General (he’d be the perfect flunky for the job), he would be powerless to force Durham to report more quickly. Sure, he could fire Durham, but he’d have to provide notice to Congress, and there’s virtually no remedy Congress would or could offer in the next 48 days. Ratcliffe can’t write a report himself. And the people doing the work for Durham aren’t DOJ employees, so firing them would do nothing to get a report. For better and worse, Barr has ensured that Ratcliffe or whatever other flunky were appointed could not do that, at least not in the 48 days before such person would be fired by President Biden.

Again, Ockham’s Razor suggests that Durham will finish his work and write a public report debunking the Papadopoulos conspiracies, confirming that CIA’s analytic work was not improper, and otherwise concluding that Kevin Clinesmith’s alteration of documents was the only crime that occurred.

More importantly, there’s a problem with Axios’ report, that “Barr had ruled out issuing a report before the election,” and that’s what makes this special counsel appointment more interesting. Barr tried to force Durham to issue a report before the election. That led Durham’s trusted aide Nora Dannehy to quit before September 11, thereby seemingly creating the need for a special counsel designation at that point.

Federal prosecutor Nora Dannehy, a top aide to U.S. Attorney John H. Durham in his Russia investigation, has quietly resigned from the U.S. Justice Department probe – at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done, colleagues said.

[snip]

Colleagues said Dannehy is not a supporter of President Donald J. Trump and has been concerned in recent weeks by what she believed was pressure from Barr – who appointed Durham to produce results before the election. They said she has been considering resignation for weeks, conflicted by loyalty to Durham and concern about politics.

[snip]

The thinking of the associates, all Durham allies, is that the Russia investigation group will be disbanded and its work lost if Trump loses.

And Barr himself had, for months, been saying that he would shut down Durham if Trump lost. Yet here we are, after the election, learning that Barr has provided Durham additional protections.

That’s all the more interesting given what Barr did after Dannehy quit in the face of pressure to issue some kind of report before the election. First, he gave a screed at Hillsdale College that pretty clearly targeted Dannehy, among others. Then, Barr attempted to let Jeffrey Jensen release an interim Durham report himself.

Less than a week after Dannehy quit, Jensen’s team interviewed Bill Barnett, someone who would be a key witness for any real Durham investigation of early actions by the FBI. The interview was clearly a political hack job, leaving key details (such as the role of Flynn’s public lies about his calls with Sergey Kislyak in the investigation) unasked. Barnett’s answers materially conflict with his own actions on the case. He was invited to make comments about the politicization of lawyers — notably Andrew Weissmann and Jeannie Rhee — he didn’t work with on the Mueller team. And he claimed to be unaware of central pieces of evidence in the case.

It took just a week for the FBI to write up and release the report from that interview, even while DOJ still hasn’t released a Bill Priestap interview 302 that debunked a central claim made in the Flynn motion to dismiss. And the interview was released in a form that hid material information about Brandon Van Grack’s actions from Judge Sullivan and the public.

But that’s not all. A day earlier prosecutor Jocelyn Ballantine sent five documents to Sidney Powell:

  • The altered January 5, 2017 Strzok notes
  • The second set of altered Strzok notes
  • The altered Andrew McCabe notes
  • Texts between FBI analysts
  • A new set of Strzok-Page texts, which included new Privacy Act violations

All were packaged up for public dissemination, with their protective order footers redacted. There were dates added to all the handwritten notes, at least one of which was misleading. The Strzok-Page texts were irrelevant and included new privacy violations; when later asked to validate them, DOJ claimed they weren’t relying on them (which raises more questions about the circumstances of their release). There’s good reason to believe there’s something funky about the FBI analyst texts released (indeed, as politicized as his interview was, Barnett dismissed the mistaken interpretation DOJ adopted of their meaning, that the analysts were getting insurance solely because of the Russian investigation); DOJ made sure that the identities of these analysts was not made public, avoiding any possibility that the analysts might weigh in like Strzok and McCabe did when they realized their notes had been altered.

One of those alterations would come to serve as a scripted Trump attack on Joe Biden in their first debate. In a September 29 hearing, Sidney Powell admitted meeting regularly with Trump campaign lawyer, Jenna Ellis, and asking Trump to hold off on a Flynn pardon, making it clear that this docket gamesmanship was the entire point.

And then, on October 19, Durham got Barr to give him the special counsel designation that would give him independence he had not had during 18 months of Barr micromanagement and also ensure that he could remain on past the time when Barr would be his boss.

Days later, on October 22, DOJ wrote Sidney Powell telling her they were going to stop feeding her with documents she would use to make politicized attacks.

Let’s assume for a minute that Durham was, in good faith, pursuing what the FBI was doing in the spring of 2017, an inquiry for which Barnett was a key — and at that point, credible — witness. That investigation was effectively destroyed with the release of the politicized Barnett interview report. Any defense attorney would make mincemeat of him as a witness.

Which is to say that Barr’s effort to let Jensen release the things that Durham refused to before the election damaged any good faith investigation that Durham might have been pursuing. And that’s before DOJ got caught altering documents, documents for which Durham has original copies. It’s not clear whether Durham is watching this docket that closely, but if he is, he knows precisely what, how, and to what extent these documents have been altered. And he probably has a good sense of why they were released in the way they were.

Again, Ockham’s Razor says that Durham will just muddle along and after a delay release a report saying he found nothing — which itself will be incendiary enough to the frothy right.

But by incorporating 28 CFR 600.4 into the scope of his special counsel appointment clearly allows him to investigate any attempts to interfere with his investigation.

federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses;

It’s likely those pre-election antics did interfere with the investigation. And even if Durham hasn’t thought that through yet, it’s possible that Michael Horowitz will inform him of the details.

A Mike Pence Pardon of Trump for Flynn’s Pardon Would Obstruct the Mueller Investigation

Because of the way the Mike Flynn pardon is written (who wrote it, given that Bill Barr has said this kind of pardon would be a crime, remains a very interesting question), it makes it clear its goal is to make all consequences for Flynn associated with the Mueller investigation to just go away. Poof! It purports to pardon Flynn for any fact known to Mueller’s investigation and anything associated with Judge Emmet Sullivan’s docket.

Not only does the pardon raise vagueness problems (and attempts to pardon future crimes), but it makes it crystal clear that it is an attempt to invalidate the entire Mueller investigation.

That makes it all the more clear it is an attempt to obstruct that investigation and all subsidiary investigations that arose from it. It is an attempt to use Presidential power to ensure that no special counsel can investigate the President and have criminal charges associated with it stick. Joe Biden’s DOJ could easily incorporate this pardon into the obstruction charge that Mueller prepared, with the benefit of yet another new act that Barr did not consider in his (legally suspect) declination for Trump.

That means that if Mike Pence were to pardon Trump for actions that included this pardon, he would then be obstructing the Mueller and associated investigation. Trump’s legal jeopardy would become Pence’s. Mike Pence, who got through the entire Mueller investigation without any personal exposure, would finally be left holding the bag for at least a subset of the crimes identified by it and committed to cover it up.

Which is why I’m interested in the focus of this Carol Lee piece on Flynn. While it relies on interviews with 20 people involved, it doesn’t even cover the full scope of the public documents relating to Flynn’s actions, and in substantial part simply narrativizes what’s in the Mueller Report. Of particular note, it doesn’t mention the evidence that certain members of the Transition were fully briefed on Flynn’s actions, while others (like Pence, but also Tom Bossert) were not. It doesn’t mention how the White House scripted Steve Bannon to claim sanctions weren’t discussed at Mar-a-Lago. It doesn’t mention that Flynn told Russia Trump knew of his calls and that Flynn made the first one while with Trump.

Where it breaks new ground is its focus on Pence. Pence is mentioned 47 times, including a quote from someone describing his reaction to discovering he had been lied to. The most important new ground pertains to how Trump tried to make Pence responsible for firing Flynn, and how Pence deferred the decision to Trump.

One of the president’s top aides thought Trump was trying to shift the burden of deciding whether to fire Flynn onto Pence when he said: “Mike, he disappointed you. He let you down.” Flynn had apologized privately to Pence who wasn’t happy with him. Still, Pence told Trump he’d support whatever decision he made.

The purported reason for firing Flynn was that he lied to Pence (the real reason is that Trump was hoping to stave off any investigation into himself).

And yet, even in a story that focuses closely on Pence (and describes him smoldering while reading the Flynn transcripts), it claims that Pence played no part in this story (while stopping short of stating that he or his Chief of Staff Nick Ayers and his aide Marc Lotter, the latter two of whom are named, had no part in it).

Vice President Mike Pence has so far been silent about the pardon.

[snip]

The White House and Pence’s office had no comment.

[snip]

Trump never said publicly or privately that Flynn had lied to him. Just to Pence, and, in a tweet in December 2017, the FBI.

Here’s the thing. Not only would pardoning Trump for this pardon for the first time give Pence criminal exposure in the Mueller and subsequent investigations. But because Pence was left out of the loop of what was really going on with Russia during the Transition and afterwards — the back channels, the efforts to undermine sanctions, yet more back channels — he would have no idea what he was serving to cover up by pardoning Trump.

I find Pence’s silence in this very noisy NBC piece to be quite intriguing.

The Facts “Known to” the Mueller Investigation: Judge Sullivan Should Demand the December 22, 2016 Flynn Transcript

I wrote up four things that, if I were Judge Emmet Sullivan presiding over the Mike Flynn case, I would do:

  • Make Trump name Flynn’s crimes
  • Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon
  • Force DOJ to explain what went into the altered documents
  • Identify who wrote the pardon

I’ve been thinking especially about what may be unconstitutional vagueness in Trump’s pardon, which purports to pardon Flynn for any facts “known to” the Mueller investigation. How do you circumscribe facts “known to” an investigation? After all, the entire Justice Manual and a lot of US code was “known to” those who conducted the investigation. Much of Flynn’s biography became “known to” investigators. Is Flynn pardoned for anything pertaining to that? That would be prospective immunity that goes well beyond the President’s pardon power. And how can Trump pardon crimes “related” to the investigation that have not yet been committed (if, for example, Flynn were to become a lobbyist for Russia based on the warm relationship he established by lying to protect them and chose not to register as a foreign agent for them)?

And so in addition to forcing Trump to name the crimes for which he is pardoning Flynn (at least with respect to all those before Sullivan, which include his charged false statements, the selling out to Turkey related crimes that were part of the plea, and crimes committed in Sullivan’s court room and the EDVA grand jury), it seems Sullivan may have the ability to lay out what is included in that “known to” language.

As part of that, Sullivan may have the authority to demand that DOJ file all of Flynn’s 302s as well as the transcripts of Flynn’s calls with Sergey Kislyak (Sullivan might also ask DOJ to lodge the grand jury testimony implicating Flynn, because that, too, defines the scope of the pardon).

I’m certain that DOJ is trying to hide those 302s, but I also don’t think there’s anything all that surprising in there (indeed, I think we’d find that Flynn was knowingly shading testimony). But I still think it legally sustainable, not least because there’s reason to believe Flynn committed a crime with respect to a fact that I suspect was not known to Mueller, because it may have been deliberately withheld (again, I’ll explain more in January). That probably won’t send Flynn to prison, but it should be recorded.

The transcripts, however, are more interesting. Bizarrely, DOJ never submitted the transcripts in this docket. Sullivan asked for them after the Mueller Report came out, but DOJ refused based on their true contention that nothing in Flynn’s case relied on the transcripts. But the Motion to Dismiss absolutely did rely on the transcripts, because it was premised on the claim that Flynn did nothing wrong on the calls. Ken Kohl even invoked them in the September hearing before Sullivan. But in spite of the fact that a selection of those transcripts were released, they were never submitted in this docket. Sullivan may be able to demand them, if only to avoid the problem of Constitutional vagueness pertaining to the scope of Flynn’s pardon, particularly with regards to what facts were known to Mueller.

That’s where things get interesting. Because DOJ made claims before Sullivan — that Flynn did nothing wrong on his calls to Kislyak — relying on the transcripts, but it specifically withheld the transcript of a call that was included in the criminal information: the December 22, 2016 call.

As I’ve noted, when ODNI released these transcripts, they didn’t even release the summary of the December 22, 2016 call included in Flynn’s charges, much the transcript.

I believe one of the facts “known to” Mueller’s investigators, but not known to us, is that Trump was present for that call, possibly even listening in. As such, it’s certainly within the scope of things for which Trump intends to pardon Flynn. But to avoid any confusion going forward that it is included, it needs to be known to us, or at least knowable to a future DOJ.

DOJ would squawk (they’ll squawk anyway, but that’s their own damn fault for writing a pardon that suffers from vagueness).

Again, I’m not saying that this provides Sullivan a way to dismiss the charges (though I see no reason why he can’t dismiss without prejudice). It doesn’t. What it does do is make a record of the true scope of the pardon.

Four Things Judge Emmet Sullivan Should Do in the Wake of Flynn’s Pardon

As I noted, Trump attempted to be expansive with his pardon of Mike Flynn. He failed. I think the chances that Flynn does prison time are almost as high today as they were last week.

And while I think there is absolutely nothing defective in the pardon that Trump signed and while I’m certain that Judge Sullivan will honor that pardon (though DOJ is asking him to dismiss the charges with prejudice; Sullivan should dismiss them without prejudice), there are four things that Sullivan has the means of doing to raise the cost of Trump’s pardon. Those are:

  • Make Trump name Flynn’s crimes
  • Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon
  • Force DOJ to explain what went into the altered documents
  • Identify who wrote the pardon

Make Trump name Flynn’s crimes

While whoever wrote this pardon tried (but failed) to make it comprehensive, it only names one of Flynn’s crimes: false statements (indeed, that’s the only crime that DOJ lists for the pardon on its website).

But by moving to withdraw his plea, Flynn put his other crimes before Judge Sullivan. So Sullivan has every right to inquire whether this pardon includes all of Flynn’s crimes. He could issue an order for Trump to come before him to answer whether the pardon forgives Flynn for:

  • His lies about what he said to Sergey Kislyak during the transition
  • Serving as an undisclosed Foreign Agent for Turkey
  • Lying about serving as an undisclosed Foreign Agent for Turkey
  • Conspiring with others to hide that he was an undisclosed Foreign Agent of Turkey
  • Lying about his own guilt and the circumstances surrounding his guilty pleas
  • Lying about lying to Flynn’s Covington lawyers

The answer to all those questions is yes. Trump does mean to pardon Mike Flynn for secretly working for Turkey while getting classified briefings. Trump does mean to pardon Flynn for lying to Sullivan (and he does know that Flynn did lie to Sullivan). Sullivan has a need to know that explicitly and he should get Trump on the record.

Trump won’t show, of course.

Until he is made to, after January 20th.

Note, I’d also make Trump state, under oath, when he signed the pardon. It is dated with Wednesday’s date, but I highly doubt that DOJ had it written by then. If Trump signed it after having lunch with Mike Pence yesterday, it’s possible that Trump didn’t write it this broadly until broaching a pardon for himself with Pence.

Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon

Judge Sullivan also has reason to want to know if someone offered Trump something of value for this pardon. He has evidence they did — in the altered documents designed to serve as a campaign attack on Joe Biden. And the news is full of evidence that Sidney Powell may have offered further benefit, in her efforts to challenge Trump’s election loss.

Sullivan should put both Flynn and Powell under oath and require that they confirm or deny whether they have offered favors to Trump for the pardon.

They won’t show, of course.

Until they are made to, after January 20th.

None of this would invalidate the pardon, of course. But if Trump got some other benefit from Flynn’s lies that went into this pardon, especially efforts to undermine a legal election, then the Attorneys General in those states that already investigating Trump’s efforts to steal the election would have reason to want to know that, and Sullivan has the means to get them under oath to do that.

Force DOJ to explain what went into the altered documents

People at both FBI and DOJ altered documents submitted in Sullivan’s court, the FBI by adding false dates to exhibits and DOJ by redacting footers indicating that the documents were covered by the protective order. Sullivan has reason to ask how that happened and who was involved in the effort.

Even if Trump pardoned everyone involved, there would still be a means for Sullivan to punish most of those involved, because most of those involved have law licenses and can be disbarred.

Sullivan should schedule a hearing — no need to rush, he might as well schedule it for January 26, after everyone involved gets a COVID shot — to ask the following people if they had a role in altering the documents (or eliciting a corrupt interview with Bill Barnett):

  • AUSA Jocelyn Ballantine
  • AUSA Sayler Fleming
  • AUSA Ken Kohl
  • US Attorney Jeffrey Jensen
  • FBI Executive Assistant Director John Brown
  • FBI Agent Keith Kohne
  • Acting DEA Administrator Timothy Shea
  • AG Bill Barr
  • DAG Jeffrey Rosen

Again, most of these people have law licenses that Sullivan could put at issue, and he has good reason to want to hold someone accountable for altering documents in his court.

These people won’t want to show. But after January 20th, they may have no way of avoiding it.

Identify who wrote the pardon

In his confirmation hearing, Bill Barr said that pardoning someone for giving false testimony would be a crime. Trump just committed that crime. Whatever lawyer wrote up the pardon language — whether it’s Barr or White House Counsel Pat Cipollone — just conspired to commit a crime.

Judge Sullivan should identify everyone who had a role.

[Fourth item added after the original post.]

Waiting on the Flynn Pardon Paperwork: What Happened with the Roger Stone Commutation

A lot of lawyers are arguing about what Judge Emmet Sullivan might do now that Donald Trump has [tweeted out a claim that he had] pardoned Mike Flynn.

It’s useful to see how something similar happened with Roger Stone. The Mueller Report made an extended case that both of them (along with Paul Manafort) had been encouraged to lie with a pardon dangle. In Stone’s case, as with Flynn, Bill Barr took unprecedented steps to try to overturn the prosecution. Then, in both cases, Trump intervened in an attempt to protect the people who had protected him.

So Stone’s docket should provide a hint of what might happen with Flynn’s pardon.

Stone’s commutation didn’t show up on DOJ’s list of commutations for several days (the commutation was issued the Friday before the Tuesday Stone would have reported). Three days later, however, DOJ posted Stone just like they had other grantees.

But DOJ didn’t inform Judge Amy Berman Jackson of their own accord. She had to go to DOJ, on the Probation Office’s behalf, to ask WTF. She ordered the parties to provide proof of the commutation, including details on how much of Stone’s punishment it covered.

In response, Stone’s lawyers posted the actual grant.

When law professors who had no standing tried to intervene — based on some of the same theories that people are floating in this case — ABJ rightly denied their motion to file as amici.

As noted, I suspect something similar will happen next week where the terms of Flynn’s pardon will be submitted to his docket. All that said, until something does land in the docket — and for some of the pending motions, even afterwards — Sullivan is still entitled to proceed as he has been, writing an order for the motion to dismiss. Even after that, there are several topics — what to do about Flynn’s perjury before him and before the grand jury, what to do about Flynn’s motion to withdraw his plea (which may pertain to DOJ’s ability to charge Flynn or his son on FARA charges), and what to do about DOJ altering documents submitted to Sullivan — that Sullivan might rightly weigh in on.

DOJ may have an incentive to shorten the amount of time in which Sullivan can do that.

But there is absolutely no reason to believe that Sullivan would challenge the pardon, nor is there reason to believe he’d respond any differently if someone else tried to.

Kraken Clemency: Did Trump Issue the Flynn Pardon Wednesday To Avoid Potential Conflict with Sidney Powell’s Batshittery??

I have to admit: given the certainty that Trump was going to pardon Mike Flynn eventually, I’m really grateful he did it on Wednesday, because it allowed for a truly epic headline, “Trump Pardons an Undisclosed Agent of Turkey Along with a Thanksgiving Bird.”

But I’m really mystified by the timing of it.

After all, there was still an outside chance that Judge Emmet Sullivan would agree to DOJ’s motion to dismiss, which would have eliminated Flynn’s guilty verdict more convincingly than this pardon. And, given that the pardon seems to exist only in Tweet form as of right now, Sullivan could still file his ruling, knowing that he’d be getting notice of a pardon sometime next week. Alternately, the early pardon could give Sullivan the opportunity to craft his other decisions, such as regarding Flynn’s motion to withdraw his plea, in ways that might have legal repercussions for Flynn and his son. So it seems risky to pardon Flynn before Sullivan rules.

I can think of several possible reasons for the timing. But the most intriguing is a tie between Sidney Powell’s efforts to sustain Trump’s most baseless conspiracy theories without any potential conflict for Flynn.

The upcoming Sullivan decision

Depending on how Trump words the pardon, the timing of this might still be an effort to pre-empt Sullivan’s decision. If Trump were to describe the pardon as all crimes Flynn committed from July 2016 to the present (meaning Wednesday), and if courts accepted that unspecific language, then it would cover not just Flynn’s lies to the FBI, but also his efforts to hide that he was an Agent of Turkey and his sworn materially conflicting statements before Judges Rudolph Contreras and Sullivan as well as the grand jury.

Or to put it another way, this may be an effort to write an even more abusive pardon in a way that few will notice.

Though I’ll notice.

The upcoming BuzzFeed FOIA release

On Tuesday, BuzzFeed will get another big drop of FBI 302s from the Mueller investigation. According to FOIA terrorist Jason Leopold, DOJ has not told them whether the drop will include the Flynn 302s, but does claim this will be the last release (which would seem to suggest it has to include the Flynn 302s).

Almost year ago, the government provided Flynn with his 302s, which make up 761 pages. They subsequently said that his cooperation with Mueller was not substantial and raised questions about his candor even after his initial interview. That’s consistent with Flynn’s own description of the early proffers, given that his Covington lawyers tried to get him back on track to cooperate after the first one.

Releasing the warrants in Flynn’s case was damning enough (though as a result of the timing, almost no one has scrutinized them closely). But these 302s may prove still more damning (not least because they should provide additional details of a meeting where Trump discussed reaching out to WikiLeaks after the Podesta emails dropped). They also may show that Flynn continued to lie to protect the President even while he was pretending to cooperate.

So Trump may have been tipped that if he wanted to limit the outrage over this pardon, he should get it done before the 302s come out on Tuesday, if indeed they will come out.

The conflict between Sidney Powell TV election lawyer and Sidney Powell TV defense attorney

Finally, I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

White House Statement Suggests Flynn Has Been Pardoned ONLY For the Charge He Pled Guilty To

The White House statement on the Flynn pardon tells a lot of lies (which I’ll return to). But the important detail is its reference to a “full pardon” only references the charges Flynn pled guilty to and only his prosecution.

In fact, the Department of Justice has firmly concluded that the charges against General Flynn should be dropped.  This Full Pardon achieves that objective, finally bringing to an end the relentless, partisan pursuit of an innocent man.

If that’s right, then Flynn is still at risk of charges for both secretly working as an agent of Turkey and his lies to Judge Sullivan.

In which case, Judge Sullivan’s job is very much not over, and the DC Circuit’s order that he proceed with dispatch about the existing charges presumably no longer applies.

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

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

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

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

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

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

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

Trump might even have to pardon Flynn Jr.

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

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

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

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

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

How Ric Grenell and Sidney Powell Have Made It Easier to Prosecute Donald Trump for Conspiring with Russia

In a Mike Flynn sentencing memo submitted in January delayed twice to secure all necessary approvals, Bill Barr’s DOJ asserted that Flynn’s lies were material because they hid, in part, who directed that he call up the Russian Ambassador and undermine sanctions.

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

[snip]

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

That makes sense. After all, Don Jr took a meeting in June with envoys for Aras Agalarov and — at a meeting offering dirt on Hillary Clinton — said his father would reconsider Magnitsky sanctions after the election. Both after that meeting and on October 7 — two of three days that stolen emails were released — Aras Agalarov provided elaborate gifts to Trump, the latter one personally couriered from Russia by Ike Kaveladze. When Agalarov didn’t succeed in revisiting his conversations about sanctions directly after the election, Jared Kushner sought out a back channel. Flynn’s conversations with Sergey Kislyak arose directly out of the meeting at which Kushner made that request, and Kushner ordered Flynn to pursue the discussions with Kislyak. Flynn, Kushner, and KT McFarland made efforts to keep those conversations secret, even from other members of the Administration. At the same time, Flynn and McFarland were explicitly talking about sending secret messages between Putin and Trump.

So it would make sense that Flynn’s effort to undermine sanctions might be proof that Trump had entered into a quid pro quo back in June, rewarding Russia’s help for getting elected with sanctions relief.

But the Mueller Report did not find adequate proof that Trump directed this effort to charge it.

Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

The Report relies on some, but not the most damning, of the exchanges back and forth between Flynn, McFarland and others released in an affidavit targeting them in 2017, as well as Flynn and McFarland’s testimony.

Since that time, several other pieces of evidence have become available — thanks to the interventions of former Acting Director of National Intelligence Ric Grenell and Flynn (and recently fired Trump) attorney Sidney Powell, among others — that might tip the balance on this evidentiary question.

Bill Barnett’s interview report claims he pursued a desired outcome in the interviews of Flynn and KT McFarland

One of those things is the testimony of Bill Barnett, one of the key FBI agents who investigated Flynn. Barnett was interviewed by Jeffrey Jensen in the review of Flynn’s prosecution that Sidney Powell demanded in June 2019 and Bill Barr gave Powell in January 2020, just after DOJ filed a sentencing memo calling for prison time.

Barnett’s testimony is, by itself, remarkable for all the ways it materially conflicts with the actions he took in the case. Effectively, he claims to have treated the investigation as a criminal investigation when documents he drafted clearly treat it as a counterintelligence investigation (thereby undermining all the claims that this was just about the Logan Act).

Barnett also claims that, after expressing disinterest in conducting this investigation four different times but ultimately relenting only so he could serve as a counter-weight to other investigators on the team, he single-handedly prevented the Mueller team from concluding that KT McFarland was lying when she told a story about coordinating with Mar-A-Lago that exactly paralleled the lies that Flynn originally told.

Barnett describes that he was the only one who believed that KT McFarland was telling the truth when she said that she did not remember Trump directing Flynn’s efforts to undermine sanctions. Significantly, he describes this question as — in Mueller’s view — “key to everything.”

Many at the SCO had the opinion that MCFARLAND had knowledge TRUMP was directing [sanction discussions] between FLYNN and the Russian Ambassador. When MCFARLAND did not provide the information sought, it was assumed she was lying. When BARNETT suggested it was very possible MCFARLAND was providing truthful information, one of the SCO attorneys participating in the interview said BARNETT was the only person who believed MCFARLAND was not holding back the information about TRUMP’s knowledge of [the sanction discussions]. MUELLER described MCFARLAND as the “key to everything” because MCFARLAND was the link between TRUMP, who was at Mar-a-Lago with MCFARLAND, and FLYNN, who was in the Dominican Republic on vacation, when [the calls] were made.

Again, it is stunning that Barnett was permitted to give this answer without being asked about the call records, which showed Flynn lied about consulting with Mar-a-Lago, to say nothing about the way that McFarland’s forgetfulness matched Flynn’s and then her unforgetting similarly matched Flynn’s. It’s not a credible answer, but Jeffrey Jensen doesn’t need credible answers.

Then, having made it clear that he believed that Mueller treated McFarland as the “key to everything,” BARNETT described how he single-handedly managed to prevent the entire team from concluding that Trump was in the loop.

BARNETT was told at one point he was being taken off the MCFARLAND proffer interview because SCO attorneys thought would be easier for MCFARLAND to talk without BARNETT there, due to her attitude toward BARNETT during past interviews.

McFarland has complained publicly about being caught in a perjury trap by the FBI agents who first interviewed her (and the 302s show a continuity among the FBI agents), so Fox viewers have actually seen evidence that McFarland had a gripe with Barnett.

BARNETT insisted he be on the interview. When BARNETT was told he would not be allowed on the interview, BARNETT suggested he might take the matter to the Inspectors General or to “11.” BARNETT believed some at SCO were trying to get MCFARLAND to change her story to fit the TRUMP collusion [sic] theory. [Probably Van Grack] later contacted BARNETT and said BARNETT would be part of the MCFARLAND interview.

During the proffer interview with MCFARLAND, the “obstruction team” was leading the interview. BARNETT described the “obstruction team’s” questions as general. They did not ask follow-up or clarifying questions. BARNETT was perplexed by their lack of asking follow-up questions. BARNETT began asking MCFARLAND follow-up questions and direct questions. BARNETT was trying to “cut to the chase” and obtain the facts. BARNETT asked questions such as “Do you know that as a fact or are you speculating?” and “Did you pass information from TRUMP to FLYNN?” Andrew Goldstein (GOLDSTEIN), a SCO Attorney, called “time-out” and cautioned BARNETT by saying, “If you keep asking these questions, we will be here all day.”

It’s unclear whether Barnett’s depiction is correct or not. The 302 of that interview is heavily redacted, but doesn’t show a “time out” in it. What matters for the purposes of this post is that Barnett is claiming he singlehandedly prevented McFarland from implicating the President.

You would never get this kind of admission from an FBI Agent, that he single-handedly undermined the questioning of a witness to get an outcome he believed in, all the while undermining his previously untainted credibility. But Sidney Powell’s demands led to DOJ producing it, nevertheless.

And that’s before any further scrutiny of Barnett’s role and the material inconsistencies here. Such scrutiny might come from the Strzok and Page lawsuits, which would have reason to use his pro-Trump tweets as proof that they were selectively disciplined for expressing political views on FBI-issued devices. Or, particularly given his efforts to blame investigative decisions on Andrew McCabe in ways that conflict with the public record, the McCabe lawsuit might have cause to inquire whether he was the agent who sourced a false story that Sara Carter published, alleging that McCabe said, “First we fuck Flynn, then we fuck Trump,” which ended up leading to the investigation into McCabe itself and ultimately to his firing. Or, DOJ IG might have cause to investigate the Jensen investigation itself, given how it submitted altered documents packaged up for publication, and the circumstances of the Barnett interview in particular, given how DOJ withheld material information from Judge Emmet Sullivan by redacting references to Brandon Van Grack in the interview report.

Interviewing Barnett in such an obviously biased way provides an easy hook for more scrutiny.

For the first time in history we can compare NSLs to warrants obtained

Then there’s another unprecedented thing that Powell’s demands produced: A report of (some of) the NSL’s that DOJ used against Flynn in early 2017. In an effort — almost certainly deliberately misleading — to suggest that McCabe and Strzok inappropriately got NSLs targeting Flynn in 2017 that they chose not to get in 2016 (there’s reason to believe they did get NSLs, only financial rather than communication ones), the government summarized what NSLs FBI obtained in February and March 2017. Those were:

One NSL, authorized on February 2, 2017, sought subscriber and toll billing records for a telephone number associated with Michael T. Flynn for the period from July 1, 2015 to the present.

A second and third NSL, authorized on February 7, 2017, sought “electronic transactional records” for an email address associated with Michael T. Flynn for the period from July 15, 2015 to the present and subscriber information for a telephone number associated with Michael T. Flynn for the period from August 1, 2016 to the present.”

A fourth, fifth, and sixth NSL, all authorized on February 23, 2017, sought toll records for three telephone numbers, for the period of January 1, 2016 to the present, and an email address, for the period of inception to the present, all associated with Michael T. Flynn.

A seventh NSL, issued on March 7, 2017, sought subscriber and transactional information for a telephone number associated with Michael T. Flynn from December 21, 2016, to January 15, 2017.

The government has only recently permitted NSL recipients to inform targets, but just targets, and only after a significant delay. Here, however, you have the government listing out the seven different communication records publicly, in a case where there was already a pending request and precedent to release the warrant applications publicly.

That not only allows us (again, for the first time I know of) to see how the FBI launders information learned in an NSL for use in a potential criminal prosecution, but it also tells us something about the communications devices the government had reason to find relevant when it did obtain warrants.

Warrant applications for Flynn’s iPhone 6 and a computer (first filed on July 7, 2017, then refiled on July 27, 2017) rely on toll records obtained in June 2017 and “other materials in the government’s possession” (which surely include those NSLs) to determine that Flynn had used the same phone from March 2015 until at least June 8, 2017. That said, Flynn changed the number three times, including after he learned he was under criminal investigation in January 2017. After Flynn refused to turn the phone over in response to a subpoena, the government obtained a warrant that would have permitted it to search Covington & Burling, where Flynn was storing it, if they didn’t otherwise produce the phone.

The warrant application and a parallel one targeting Flynn’s son* were focused on FIG, but written in a way such that any communications with foreign officials like Kislyak would still be responsive, and could be used in a False Statements or Foreign Agent prosecution.

By the time of the July 27 warrant that presumably successfully obtained Flynn’s phone, the government already had his Flynn Intelligence Group emails (there are two EDVA warrants that have not yet been unsealed, and some of those emails were turned over pursuant to a subpoena).

Also by that time, the government had confirmed that Flynn’s FIG email was provided by Google. This was the period prior to the time when DOJ agreed to let enterprise clients know when warrants were served on their facilities, meaning the government could have independently obtained FIG emails from Google, as they obtained Michael Cohen’s Trump Org emails from Microsoft in the same period.

On August 25, 2017 — the same day that Mueller asked GSA to turn over related devices and email accounts — Mueller obtained a warrant for Mike Flynn, KT McFarland, and Flynn assistant Daniel Gelbinovich’s devices and emails. GSA had provided Flynn one email account, three phones, and three computers, which would be consistent with devices hardened to three levels of classification — unclassified, Secret, and Top Secret (Flynn had renewed his clearance earlier in 2016). The government had already used a d-order to obtain the header information for the email accounts and obtained toll records by undisclosed means (of which there would be several possible, but the NSLs would have provided that information as well). In addition to sender and recipient information, the header information would have shown what IP any emails were sent from, using what devices (this would have built on information obtained via NSL), which can help to identify the location of someone. The August 25 affidavit referenced FIG emails obtained via subpoena to demonstrate that the Russians contacted Flynn at his Transition account (as well as via Gelbinovich and, apparently, Flynn’s son); though because the Russian side of the conversation would have already been targeted under FISA, the FBI also would have had their side of the communication, which the Russians surely knew.

Then on September 27, 2017, Mueller obtained a warrant targeting the email accounts and devices of Keith Kellogg, McFarland assistant Sarah Flaherty, Sean Spicer, Reince Priebus, and Jared Kushner. These two posts show how damning the content relayed in this warrant is. For the purposes of this post, however, the affidavit is useful because it identifies whether the emails Flynn and McFarland were using to communicate with the others were Transition accounts or not. While it appears Kellogg always used his Transition account, Flaherty, Spicer, and Priebus occasionally did, most of the rest did not, except in cases where they were writing cover emails. But her emails! (Numerous communications from Tom Bossert are included in this batch, as well, but that must come from an interview and subpoena he complied with.)

In addition, the affidavit explains that regarding the sanctions coordination, McFarland was consistently calling Flynn on his personal cell phone (the implication may be that earlier calls were on one of his GSA devices). He was responding to her and calling Kislyak from the hotel phone where he was staying in the Dominican Republic (the latter calls and their content, the FBI would know from FISA intercepts). The December 31 follow-up from Kislyak was placed to Flynn’s personal cell.  The affidavit does not, however, describe which phones Flynn used for other calls.

There are many details about these records that are interesting. Among the most interesting, however, is that the FBI would have known before they obtained the first warrants on Flynn’s devices and emails that almost none of the key calls with Russia, nor even the key calls coordinating the Russian sanctions call with McFarland and others, involved Flynn’s GSA devices. Additionally, there appear to be extra phones, not identified by the known warrants. These might be the possible targets of the NSLs:

One NSL, authorized on February 2, 2017, sought subscriber and toll billing records for a telephone number associated with Michael T. Flynn for the period from July 1, 2015 to the present. [Flynn personal phone]

A second and third NSL, authorized on February 7, 2017, sought “electronic transactional records” for an email address associated with Michael T. Flynn for the period from July 15, 2015 to the present and subscriber information for a telephone number associated with Michael T. Flynn for the period from August 1, 2016 to the present.” [Flynn Intelligence Group email and another phone (possibly his son’s?)]

A fourth, fifth, and sixth NSL, all authorized on February 23, 2017, sought toll records for three telephone numbers, for the period of January 1, 2016 to the present, and an email address, for the period of inception to the present, all associated with Michael T. Flynn. [GSA accounts]

A seventh NSL, issued on March 7, 2017, sought subscriber and transactional information for a telephone number associated with Michael T. Flynn from December 21, 2016, to January 15, 2017. [unidentified account]

At a minimum, the NSL report suggests that even though none of the calls identified in the warrants were to Flynn’s presumably more secure phones (indeed, only Spicer appears to have had a second phone at that point, probably in part because, of the others, only Kellogg and Flaherty had clearance), the government chose to obtain those phones as well. The government knew, when it obtained the August 2017 warrant, that there was something interesting on those second and third GSA lines Flynn was using.

If it weren’t for Sidney Powell’s attempts to frame Andy McCabe, these details would be totally classified. But because she demanded the “review,” it shows that there are parallel phone communications via which Flynn could have kept Trump in the loop on his calls to Russia (remember, translators believed the key December 29 one, which Flynn made from his hotel phone, sounded like he was using a speaker phone).

Ric Grenell releases really damning transcripts but withholds the potentially most damning one

Finally, in yet another unprecedented release, while he was Acting Director of National Intelligence, Twitter troll Ric Grenell prepared the release of the actual transcripts of the calls between Flynn and Kislyak, purportedly to show there was nothing untoward about the calls. (Current DNI John Ratcliffe approved the actual release as one of his first acts on the job.)

Even by itself, the transcripts were far more damning than the gaslighters suggested. Of particular note, on the December 31 call that Kislyak placed to tell Flynn that Putin had held off on retaliating because of his request, Flynn told the Russian Ambassador that Trump was aware of one thing — a proposed Syrian “peace” conference — that Kislyak had raised just two days before.

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

This evidence would have been inadmissible without Grenell’s intervention. There would have literally no way in hell Mueller would have been permitted to rely on it, a raw transcript of a FISA intercept targeting a foreign power. With it, however, you have Flynn saying in real time that Trump was aware of these conversations with Russia, well before they were made public. That’s precisely what Mueller concluded they couldn’t prove.

The transcripts make evidence obtained using criminal process still more damning, too.

For example, the transcripts and the affidavits make it clear that Flynn, McFarland, and the Russians were explicitly messaging back and forth. First Flynn explicitly told Kislyak that if Russia did not escalate in response to Obama’s sanctions, “we,” which would have to include Trump, would recognize that as a message.

Flynn: And please make sure that its uh — the idea is, be — if you, if you have to do something, do something on a reciprocal basis, meaning you know, on a sort of even basis. Then that, then that is a good message and we’ll understand that message. And, and then, we know that we’re not going to escalate this thing, where we, where because if we put out — if we send out 30 guys and you send out 60, you know, or you shut down every Embassy, I mean we have to get this to a — let’s, let’s keep this at a level that us is, even-keeled, okay? Is even-keeled. And then what we can do is, when we come in, we can then have a better conversation about where, where we’re gonna go, uh, regarding uh, regarding our relationship. [my emphasis]

When Putin announced he would not retaliate, KT McFarland sent two emails explicitly labeling the move as a signal.

My take is Russians are taking the most restrained retaliation possible — it’s his Signal to trump that he wants to improve relations once obama leaves. Although [Obama] didn’t mean to he has given [Trump] new leverage over Putin.

[snip]

Putin response to NOT match obama tit for tat are signals they want a new relationship starting jan 20. They are sending us a signal.

But then Trump thanked Putin for the move, suggesting he was in on the signaling.

After he did so, McFarland sent Flynn, Kellogg, Flaherty, Priebus, Kushner, and Bannon — the latter of whom almost never used their official accounts but did here — and laid out a cover story, describing Flynn’s call without mentioning that he had raised sanctions. She offered,

a summary of FLYNN’s conversation the day before with the Russian “AMBO,” which I believe to be shorthand for “Ambassador.” McFarland appears to recite a summary of information she received from FLYNN in this email; she provides a summary of FLYNN’s conversation with the Russian Ambassador, but does not indicate that they discussed the sanctions imposed against Russia that had been announced earlier that day.

Flynn would admit to Mueller’s team that he, and therefore McFarland, who knew the truth, deliberately hid his discussions of sanctions with Kislyak.

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

But the Russians — who may have monitored some of the traffic that went on between these unsecure personal accounts — made damn well sure that the US intelligence community had a record that all this signaling was intentional. Kislyak called Flynn on his unsecure personal cell phone and told him he had a message, too. The message was that Flynn’s request was the reason Putin had not acted. The message was also that Russia recognized (or claimed to, to play to the Americans’ paranoia) to be pitted against the same hostile entities together.

Kislyak: Uh, you know I have a small message to pass to you from Moscow and uh, probably you have heard about the decision taken by Moscow about action and counter-action.

Flynn: yeah, yeah well I appreciate it, you know, on our phone call the other day, you know, I, I, appreciate the steps that uh your president has taken. I think that it was wise.

Kislyak: I, I just wanted to tell you that our conversation was also taken into account in Moscow and…

Flynn: Good

Kislyak: Your proposal that we need to act with cold heads, uh, is exactly what is uh, invested in the decision.

Flynn: Good

Kislyak: And I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.

Flynn: yeah, yeah

Kislyak: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight.

This messaging all ended up with Russia and the incoming President aligned on the same side, against the US government.

Still, that’s not direct proof that Trump was involved in real time (though I suspect the government obtained that from its NSLs).

But that may be why Mueller charged Flynn’s lies about the UN vote. In that case (in part because McFarland wasn’t hiding her actions as much), it’s clear that Jared Kushner ordered the effort (and the Americans initiated the calls).

According to records obtained during the course of the investigation, at approximately 8:46 a.m. on December 22, 2016, FLYNN had a four-minute conversation with Jared Kushner. After that conversation concluded, at approximately 8:53 a.m., FLYNN called the Russian Ambassador to the U.S. FLYNN then called a representative of the Egyptian government and had a four-minute conversation with him. At approximately 8:59 a.m., FLYNN had a three-minute conversation with the Russian Ambassador. Over the next few hours, FLYNN had several additional phone calls with the representative of the Egyptian government.

When the Trump crowd succeeded in delaying a vote, McFarland made it clear that Flynn was at Mar-a-Lago working directly with Trump on this effort.

At approximately 8:26 p.m. on December 22, 2016, K.T. McFarland emailed FLYNN and Sarah Flaherty and stated that FLYNN had “worked it all day with trump from mara lago.”

And in spite of the fact that he himself initiated the effort, Kushner sought to release a public cover story, to hide that he and his father-in-law initiated the effort.

Kushner replied all to that email [including Spicer, Bannon, Priebus, Kellogg, McFarland, Kushner, and one other person whose name is redacted] and wrote: “Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact pattern and better for this to be out there.”

This was a lie — a lie designed to cover up that he and Trump and Flynn had worked with Egypt (which had allegedly bribed Trump to get him through the election) and Russia (which had conducted an elaborate operation to help him) to thwart the vote and with it the official US policy not to protect Israel’s illegal settlements.

As it turns out, the transcript from Flynn’s call to Russia that day isn’t among those Grenell released because they were so helpful to Trump. Even the one-line summary of the call, released for all other substantive calls, remains redacted.

But there, too, Kislyak may have been performing for the FBI intercepts he knew would catch these calls.

First, on the December 23 call — the one after the call for which the transcript hasn’t been released — Kislyak assures Flynn that whatever happened on it was considered by Putin.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia.

Then on the December 29 call, when Flynn asks Kislyak that Russia not box in the new Administration, Kislyak says that message has already been conveyed.

FLYNN: do not, do not uh, allow this administration to box us in, right now, okay? Um —

KISLYAK: We have conveyed it.

That request wasn’t in the December 23 call, so it must have been in one of the communications that preceded it, possibly even the face-to-face with Kushner in Trump Tower.

In his December 22 call — the one the content of which Grenell hid — Flynn made an ask of Russia, an ask that went beyond a vote at the UN. That was a call made from Mar-a-Lago, possibly even made with Trump on the call. That was a call that McFarland bragged Trump was involved with personally.

The Mueller Report, relying on evidence that would be admissible in court, said it was unclear how involved Trump was in any of this. But thanks to Ric Grenell, we now have solid evidence he was personally involved, if not on the phone for the call.

And even Bill Barr’s DOJ says that kind of personal involvement from Trump might amount to the kind of coordination that Bill Barr claimed didn’t exist.

When Mueller closed up shop, his team decided that they couldn’t make this case in court. Now, thanks to Sidney Powell and Ric Grenell, the Biden Administration may have a much easier time making that case.


*We know this warrant targeted Michael G. Flynn because it was sent to Barry Coburn, who represented the failson, because the warrant always refers to Flynn père as Michael T. Flynn (as an affidavit referencing both would necessitate), and the target of the third warrant tried to invoke the Fifth Amendment for questions about Flynn Sr.