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

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

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

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

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

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

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

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

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

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

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

Sidney Powell Gets Caught Lying in Hearing before Emmet Sullivan

The Mike Flynn status hearing just ended (I livetweeted it here). The outcome is that Flynn’s sealed Brady filing will be posted tomorrow, the government response will be in two weeks, Flynn’s reply will be on October 15. The Brady hearing will be October 31.

Emmet Sullivan tentatively set a sentencing hearing for December 18, the year anniversary for his aborted sentencing hearing last year.

The government said it will file a new sentencing memorandum, suggesting they likely will say he did not accept responsibility for his crimes. Those new filings are due on December 2.

Sidney Powell stated that she does not expect Flynn to withdraw his plea, though she did suggest the entire prosecution should be withdrawn because of egregious misconduct.

The hearing itself was less remarkable than Sidney Powell’s factually impaired briefing last week. But she did manage to get in at least one lie to Sullivan.

She claimed that Flynn had not been provided notice of the Lisa Page – Peter Strzok texts. Brandon Van Grack told the court that Flynn was told Strzok had a political preference before he signed his guilty plea. Van Grack also revealed that Flynn got texts that have not been otherwise publicly released. That means Senator Ron Johnson didn’t release texts that pertained to Flynn (and perhaps were derogatory to him) when he dumped all of them in December 2017.

Powell also complained that Flynn had not been provided notice that Jim Comey “set up the ambush interview” of Flynn. Van Grack made it clear that Flynn received it before sentencing and that Sullivan referenced it at the beginning of last year’s sentencing memo. Powell excused her outright lie about something Sullivan mentioned on the public record by saying the train was pretty far down the track by then.

Powell made much of the fact that the government had already decided that Flynn would not be charged as an Agent of Russia or with a Logan Act violation shortly after his FBI interview. Van Grack noted that that’s not the benefit that the government said Flynn had obtained with his guilty plea.

Finally, Powell suggested that there might have been a prior secret investigation into Mike Flynn based off the secret NSA database, attempting to reference the allegations in the Rosemary Collyer opinion that has to do with targeted surveillance of otherwise targeted US person subjects when they’re overseas. In short, it was rank nonsense based off of Sara Carter’s erroneous “reporting” on the opinion.

All in all, Sullivan took being lied to in pretty mellow fashion. We’ll see whether that continues after Van Grack lays out precisely how batshit some of Powell’s claims are.

Flynn Steps in It 2.0: Emmet Sullivan Will Make Sidney Powell Explain Why She Asked to Declassify Totally Irrelevant Secrets

Back when Mike Flynn got cute in his sentencing memo, I warned that his false allegations about the circumstances of his investigation might backfire. It did. It led Judge Emmet Sullivan to order the release of his 302, showing how damning his lies were.

Flynn may have just done it again.

As I noted, in the joint status report submitted last week in the Mike Flynn case, his lawyers claimed they could not attend hearings on September 4, 5, 9, or 10, which were the dates the government suggested for a status conference.

The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

In response, Emmet Sullivan scheduled a status conference for September 10, a date Flynn’s lawyers had said they could not attend.

The fact that this hearing remains scheduled on September 10 may suggest Flynn’s lawyers were not telling the truth about their ability to attend a hearing on that date, in an attempt to forestall the status conference for 30 days as they had requested to do in the status report.

They were definitely lying about their ability to attend a hearing on September 5, because they did attend one, a sealed ex parte hearing before Sullivan where they discussed their demand that they all receive security clearances so they could review a bunch of evidence that doesn’t help their client.

As noted, in response, Judge Sullivan issued an order saying that before he’ll rule on whether they get security clearances, he will first rule on the Brady motion full of demands to see information that is not helpful to their client.

In response to Flynn’s motion that had basically said Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens, literally invoking the Senator whose prosecution has led Judge Sullivan to distrust government claims to have complied with discovery obligations 21 times, Sullivan instead said “Fawaz Yunis.”

Fawaz Yunis is one of the first terrorists the US prosecuted in the US. In preparation for his trial, he demanded a bunch of transcripts of conversations an informant had with him, some of which a judge later characterized as “trivia.” Nevertheless the judge ordered the government turn over those transcripts. The government appealed, which led to the DC Circuit decision governing the Classified Information Procedures Act in DC that the government cited in the status report.

A defendant and his/her cleared counsel in a criminal prosecution may only obtain access to classified U.S. government information when such classified material is deemed both “relevant” and “helpful to the defense.” See United States v. Yunis, 867 F.2d 617, 623-24 (D.C. Cir. 1989).

The DC Circuit reviewed the transcripts in question and reversed the District Court’s decision, finding that it had abused its discretion in the CIPA process by ordering the disclosure of the transcripts to the defendant.

[T]he District Court abused its discretion in ordering the disclosure of classified information to a defendant where the statements in question were no more than theoretically relevant and were not helpful to the presentation of the defense or essential to the fair resolution of the cause.

In reaching that decision, the Circuit also noted the importance of protecting sources and methods regarding,

the time, place, and nature of the government’s ability to intercept the conversations at all. Things that did not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation’s intelligence-gathering capabilities from what these documents revealed about sources and methods.

This is trouble for Flynn’s latest attempt to (as all the DC lawyers I know continue to joke) snatch defeat from the jaws of victory on his defense.

That’s true, first of all, for the one classified item that Flynn might make a sound argument he should be able to obtain: the transcripts of his calls with Sergey Kislyak. The Yunis decision is directly on point to whether a defendant can get transcripts made in the course of national security investigations, and the DC Circuit upheld the principle that the government’s interests in hiding (say, from Russia) details of how it collects on Russian diplomats can limit discovery to Flynn in the interests of protecting the ability to wiretap Russian diplomats in the future.

The best thing that can happen for Flynn is that Emmet Sullivan — who has already asked whether Mueller considered charging Flynn with treason — will review the transcript and see for himself how damning Flynn’s comments were (though, given that at sentencing Sullivan said he has reviewed a lot of classified information in this case, he may already have seen it). If Sullivan reviews the transcript and believes it does nothing but make Flynn look more guilty, then Flynn is not going to get the transcript, and Sullivan may grow even more appalled by Flynn’s conduct.

Then there are the Strzok-Page texts Flynn has demanded. If Sullivan has to review those, he’ll have a sense of what Peter Strzok was looking at to make him so concerned about Trump’s ties to Russia. He’ll also see that Strzok was pursuing a range of counterintelligence cases, not a single-minded “coup” against first candidate and then President Trump. He’ll even see how aggressively Strzok pursued the guy who leaked details about Carter Page’s FISA order. Any derogatory bits about Strzok from these texts have already been released publicly; anything additional Sullivan would see would be other counterintelligence cases or derogatory information about Flynn and his buddies.

Worse still are the other completely unrelated things Sidney Powell demanded in her “Brady motion.” Using public evidence, I was able to show most of the demands were crap. In one case, Powell demanded the declassification of a memo that shows National Security Advisor Mike Flynn oversaw the NSA slow-walking a response to FISA. In another, Powell made a false claim that, if true, would mean her client had broken the law for 30 years as an intelligence officer.

Now Powell is going to have to make the case that this stuff is relevant, which is going to be very difficult for her to do.

And Emmet Sullivan is happy to sanction any lawyers who play games in his courtroom, whether they’re prosecutors or defense attorneys or Fox pundits.

Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sidney Powell Believes She Can Bullshit Emmet Sullivan at No Risk to Her Client Mike Flynn

In her filing responding to Judge Sullivan’s orders for an update on sentencing, Mike Flynn’s lawyer Sidney Powell makes it clear she’s trying to blow up the government’s case against Bijan Kian while pretending her client hasn’t outright reneged on his cooperation deal with the government. Largely, her filing repeats the claims she made in her Bijan Kian filing, claiming that any errors in the FARA filing were the fault of Covington, while providing documents showing that at the very last transcribed meeting they provide records for, Flynn was lying to his lawyer Rob Kelner.

But there are two interesting touches to what she submitted today.

First, she talks repeatedly about how cooperative Flynn has been with EDVA prosecutors, repeating the total time he has spent — 30 hours — twice, and complaining about the money he has had to pay to cooperate. But here’s the schedule of meetings with prosecutors she provided. It shows that Flynn hasn’t spent any time working with prosecutors since the less than four hours on the day he fired Kelner and hired Powell.


Instead, Flynn appears to have spent three weeks with Powell, inventing a new story about his lies leading up to his FARA filing, which led to the meeting on June 27 where everything blew up.

Then there are the handwritten notes and a typed version of that meeting with prosecutors where they blew up Flynn’s cooperation. The attorney who submitted these calls the typed version a “transcri[ption] of my handwritten notes” (for included portions, they’re generally accurate).

Except there’s a whole swath of the discussion that doesn’t appear in her notes at all — including a line from Powell that clearly was designed to blow up the Kian case, suggesting that the government didn’t have a case (Note, I assume these notes are missing because an entire page is missing from what they’ve submitted, and that the notes actually exist, not that she didn’t take them; I assume they’ll fix this exhibit in the docket).

In addition to Powell’s inflammatory statement, Flynn’s lawyers also have not yet submitted the notes taken of AUSA Neil Hammerstrom pointing out that the time for Flynn to make this case was in the two different plea colloquies he made under oath. (Again, I’m sure they’ll correct this omission, but it’s pretty sketchy to leave this stuff out.)

The thing is, again, it’s clear Flynn was lying even in the last meeting with Covington before the FARA submission, at least as the record stood the other day.

This will surely play well on Fox News. But I’m guessing that Emmet Sullivan will be able to sniff out the bullshit.

Mike Flynn got paid over half a million dollars for what his lawyer currently says was just “writing op-ed” (he didn’t write it–he just slapped his name on it). What she neglects to mention is that during that time, he was getting Top Secret briefings as Trump’s top National Security Advisor, which is why it matters that Flynn was hiding, in November 2016 when he published the op-ed, and still in March 2017 when he claimed to correct the record, that he was secretly on the payroll of the government of Turkey.

With Latest Stunt, Mike Flynn May Save Bijan Kian from Prison Time But Double His Own

When Mike Flynn hired new counsel, it became clear he was … up to something. Now that something might get him — and possibly even his son (concerns about whom motivated Flynn to cooperate in the first place) — sent to prison. Or, it might spectacularly fuck over the government. We’ll find out next week, when Flynn’s former partner Bijan Kian goes on trial … or maybe sooner, given that Emmet Sullivan has demanded details on the backstory before the end of the week.

Filings unsealed in Kian’s case make it clear that, since the time Flynn replaced the very good Rob Kelner with Fox News firebreather Sidney Powell and Jesse Binnall, he reneged on a key part of his guilty plea. He newly claimed to prosecutors that that he had not knowingly lied about working for Turkey in the March 7, 2017 FARA filing that admitted Turkey might benefit — but denied they were paying for — his services. In response, the government has informed Kian they will not have Flynn testify at trial, and instead tried to name him a co-conspirator and submit one of his statements as the statements of a co-conspirator. That led to the unsealing of these documents, with Kian trying to prevent the government from upending their defense strategy, which has consisted of portraying Flynn as a liar, and Flynn trying to prevent the government from designating him a co-conspirator. Last night, Judge Anthony Trenga ruled largely for Kian on a  bunch of other matters (which may have interesting effects for FARA and 951 prosecutions in EDVA); along the way Trenga ruled that the government has not sufficiently shown a conspiracy to violate 951 such that they can enter Akim Alptekin’s statements as a co-conspirator. That will also prevent them–at least as of now–from entering one exhibit involving Flynn as the statement of a co-conspirator, unless and until they submit enough evidence at trial to lay out such a conspiracy (though that exhibit will be admissible under other standards). Naming Flynn a co-conspirator might make it easier to prove a conspiracy, but they’re not there yet.

To be sure, Kian (who like Flynn hired really good lawyers but unlike Flynn did what they told him and also didn’t fire them) already stood a good chance of prevailing at trial, because Trenga is really skeptical of the way the government charged this, including their initial decision not to treat Flynn himself as a co-conspirator. But the chaos Flynn has caused by reneging on his testimony may be the final straw that sinks the government’s case.

All that said, Flynn’s decision to renege on his testimony may have short-circuited a plan to challenge his guilty plea down the road. That’s because Emmet Sullivan has ordered the parties to immediately explain how the government’s decision not to have Flynn testify will affect his sentencing, which had been delayed exclusively for that purpose.

Flynn’s motion objecting to being named a co-conspirator is what you’d expect from a firebreather. It makes a lot of allegations about Flynn being pressured to plead the way he did and invokes David Laufman, whom the frothy right has inserted into some of their hoaxes, to suggest that it was improper for DOJ to insist that the National Security Advisor disclose that he had been on Turkey’s payroll while ostensibly serving as Trump’s top national security advisor during  the campaign.

A key part of this strategy appears to be to review Kelner’s prior work, and blame him for the decisions already made.

This really fucks over Kelner, who in December was on the verge of getting his client no prison time before Flynn decided to use his sentencing as an opportunity to discredit the prosecution of him for acting as an unregistered foreign agent while getting Top Secret briefings, and who might still have saved him from prison time had he simply testified in the Kian trial as planned. Kelner will be unable to rebut some of the claims Powell is making, because Flynn gets to decide what privilege to waive, not Kelner. Flynn has probably not even paid Kelner due recompense for that work! Note, too, how Kelner is exposed by Flynn’s own lies.

All that said, the case Flynn’s lawyers are making is — typical of the frothy right — better suited for seeding more conspiracies than winning a legal argument. First, they overstate the assurances the government made that Flynn had no danger of being described as a co-conspirator in this case.

The transcript all sides are relying on — the June 13 statement the government tried to correct — does not deny that Flynn was part of the conspiracy, just states that the government won’t label him as such.

THE COURT: Let me ask you this. It’s not in the indictment. Is the government alleging that Mr. Flynn was part of this conspiracy?

MR. GILLIS: We are not, Your Honor.

THE COURT: Right. So you’re not presenting any statements by him, any testimony – there would be no evidence from him as to the existence of the conspiracy?

MR. GILLIS: Well, Your Honor – no. Your Honor, as to that. There will certainly be testimony from General Flynn. And from that testimony, the jury could draw a reasonable inference that there was a conspiracy, but we are not – we do not contend that General Flynn was a part of that conspiracy.

They make it quite clear his testimony would describe actions he was involved in that amount to a conspiracy. The government just wasn’t labeling the guy who was then going to be a friendly witness a co-conspirator. Flynn points to assurances that Gillis told them the government would not charge Flynn in the conspiracy.

Not only did the prosecutors advise the Court on the record that Mr. Flynn is not a coconspirator, AUSA Gillis has stated repeatedly in interviews of Mr. Flynn and representations to counsel that Mr. Flynn was not implicated in the charged conspiracy.4

4 Mr. Gillis informed undersigned counsel and Mr. Flynn twice on June 6 alone that Mr. Flynn was not charged in this conspiracy, and they did not intend to charge him. This is one reason new counsel for Mr. Flynn understood that the government was only interested in and satisfied with Mr. Flynn’s factual testimony as given repeatedly to date–which, as Mr. Gillis put it, “would allow the jury to infer supervision and control” of the project by the Government of Turkey.

These are different things: not alleging Flynn is part of the conspiracy, not contending that he is, not charging him for it, but nevertheless being implicated in it.

Plus, the record before Judge Sullivan is quite clear: absent his cooperation agreement, Flynn could have been charged with both conspiracy and 18 USC 951 (being an Agent of a foreign power).

THE COURT: I think that’s fair. I think that’s fair. Your answer is he could have been charged in that indictment.

MR. VAN GRACK: Yes, Your Honor.

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

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

MR. VAN GRACK: I believe so.

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

In other words, as far as Sullivan is concerned, given Flynn’s changed testimony the government now reaffirms that he was part of that conspiracy, as they did in December.

Moreover, Flynn’s lawyers doesn’t seem to understand the purpose of Flynn’s FARA in March 2017, which was to fix a reliance on a commercial exception and admit Flynn that had actually been influence peddling. The March 2017 FARA filing did that. What it didn’t do is admit that Flynn was aware the Turkish government was paying for the work, not just that it might benefit from it (which is what the filing said). What the FARA filing did not do is admit Flynn knew the Turkish government was his actual client, not Inovo.

Thus, showing (as they do) that Kelner learned and expressed concern about Turkey’s role in January 2017 doesn’t prove he knew that the FARA filing was a lie in March. Nor does pointing out that Alpetkin’s lawyers lied. At one point they point to Kelner, in a recent interview with prosecutors, stating that they did not go through all of Flynn Intelligence Group emails, without realizing that that would mean any lies Flynn told to Kelner would be more significant.

In another, they make a big deal that notes of significant legal issues don’t include something — the evolution of the project from one focused on business to one focused on influence-peddling — that was already well established by that point.

Handwritten notes of 2/22/2017 meeting with Mr. Flynn were transcribed a year later and omit the crucial fact that Mr. Flynn told counsel the “business activities” reason that originated the project quickly “crystalized” down to “Gulen” which the raw notes show with a V diagram. The later transcription also omits or misinterprets the fact that the op-ed was pushed at the time for campaign reasons (in addition to for the Inovo project). Compare Ex. 8 with Ex. 9See Ex. 8-A, transcription of handwritten notes.

But there’s abundant reason to believe Flynn’s claim here — that the op-ed in question, which was done for Turkey, was in fact really meant to benefit the campaign — was utter horseshit. And the accurate transcription of these notes reflecting that conversation …

… instead strongly suggests that in the latest document Flynn produced yesterday, his lawyers caught him lying to them about the central purpose of the op-ed, which was to help Turkey.

In other words, the documents released yesterday show that Kelner didn’t read through every FIG document, and that up until the end Flynn continued to lie to him about what the purpose of the November 8, 2016 op-ed was (as clearly shown by other records released in advance of this trial). They support the government’s claim that Flynn knowingly lied in March 2017.

Don’t get me wrong. This strategy, bolstered by months of riling of the frothy right, might well have worked like a charm. It even still may!

But Emmet Sullivan — and the government — are under no obligation to give Flynn’s Fox firebreathers time to sow these new conspiracies.

Plus, Sullivan seems to have expected something like this might ultimately happen, because the last time Flynn tried to sow conspiracies, only to walk them back, Sullivan made sure to put Flynn under oath before he stated that he was satisfied with Kelner’s representation.

THE COURT: All right. I want to focus on the plea first because I think I need to. And there are some questions that I’m going to ask Mr. Flynn, and because this is an extension, in my opinion, of the plea colloquy, I’m going to ask the courtroom deputy at that time to administer the oath, because normally when we have plea colloquies, we always require a defendant to be under oath, and that’s what I’m going to do this morning, unless there are objections.

MR. KELNER: No objection, Your Honor.

[snip]

So I’m going to invite Mr. Flynn and his attorney or attorneys to come to the podium, and I’m going to ask the courtroom deputy to administer the oath to Mr. Flynn.

(MICHAEL FLYNN, DEFENDANT IN THE CASE, SWORN)

THE COURT: All right. And I will inform you, sir, that any false answers will get you in more trouble. Do you understand that?

THE DEFENDANT: Yes.

[snip]

THE COURT: All right. Are you satisfied with the services provided by your attorneys?

THE DEFENDANT: I am.

THE COURT: In certain special circumstances, I have over the years appointed an independent attorney to speak with a defendant, review the defendant’s file, and conduct necessary research to render a second opinion for a defendant. Do you want the Court to consider appointing an independent attorney for you in this case to give you a second opinion?

THE DEFENDANT: I do not, Your Honor.

THE COURT: Do you feel that you were competent and capable of entering into a guilty plea when you pled guilty on December 1st, 2017?

THE DEFENDANT: I do, Your Honor.

THE COURT: Do you understand the nature of the charges against you and the consequences of pleading guilty?

THE DEFENDANT: I do understand, Your Honor.

THE COURT: And that was covered extensively by Judge Contreras. I’ve read the transcript. Are you continuing to accept responsibility for your false statements?

THE DEFENDANT: I am, Your Honor

As bmaz presciently wrote at the time, Sullivan was anticipating he might need to lay the groundwork for a fraud on the court.

All of which is to say, it was always going to be hard for Flynn to pull off backing out of his plea deal, even with the three months Powell asked to prepare.

But Sullivan was already fairly pissed that Flynn was getting off easy for having served the interests of Turkey while also serving as Trump’s top national security advisor. He probably had cooled off in the interim 7 months. Except now Flynn has basically taken steps to suggest he perjured himself in front of Judge Sullivan.

Which at least gives Sullivan the opportunity to sentence him immediately, and harshly.

Update: The government says that Flynn’s change of testimony does raise significant issues for Flynn’s sentencing, but they won’t be sure how until after the Kian trial.

At this time the government cannot speculate on how specifically the aforementioned records will impact the government’s sentencing position in the proceedings before this Court. Although the records raise numerous issues, the Rafiekian trial may still impact the government’s position. For example, Rafiekian could call the defendant to testify at trial. As a result, the government intends to reassess its sentencing position at the conclusion of that trial.

It sounds like they’ll want to move to sentencing shortly after trial, but they do want to wait until after it.

Update: The government just updated its witness list to add Flynn’s spawn. That should make things interesting next week, as the spawn can verify some of the things pops might otherwise do.

Timeline

June 27: Flynn reneges on part of his guilty plea

July 2: Prosecutors tell Kian’s lawyers that Flynn now claims he didn’t know about the lies being submitted in his FARA filing

July 3: Government files a correction to the record, notifying Kian that they will not call Flynn as a witness, will treat him as a co-conspirator, and in so doing, submit one of his statements as evidence

July 5: Kian asks for a hearing to force the disclosure of the correction; asks for hearing to see whether indictment was based of coerced testimony from Flynn

July 6: The government rebuts Kian’s claim that his indictment relied on false Flynn testimony, also noting that it was the defense that assumed Flynn would testify

July 8: Kian complains that his comments in November 2016 about dissolving the Flynn Intelligence Group changed when Flynn was filing fraudulent statements on FARA; Flynn tries to prevent the government from calling Flynn a co-conspirator

On the Fizzle and Boom in Friday’s Mike Flynn Friday Night News Dump

Some events set in motion by a request WaPo made in April to unseal the sentencing files of Mike Flynn that have resulted in some fizzle, some pop, and a lot of premature speculation.

In their response to the request, the government said that the release of the Mueller Report meant they could release three of the four documents WaPo initially asked for in less redacted form: Flynn’s cooperation addendum (parts of which were and are still sealed to protect ongoing investigations), an Andrew McCabe memo on his interview, and a Peter Strzok 302 (both of which had personal privacy and deliberative privilege redactions). The government moved to unseal them. In approving that unsealing, Judge Emmet Sullivan picked up on the reference to the Flynn transcript and issued an order to the government to unseal both that transcript, any sealed parts of the Mueller Report that “relate to Flynn,” and transcripts of all recordings involving Flynn, “including, but not limited to, audio recordings of Mr. Flynn’s conversations with Russian officials.”

Meanwhile, WaPo expanded their request to include Flynn’s original 302. Unlike the other documents they had earlier requested, his 302 quoted from the transcripts of his conversations with Kislyak. Surprisingly, Sullivan did not respond (I had wondered whether he might order the government to release it along with the other items). The government said it will review what can be released in that, as they had with other filings, though Flynn objects to this release. And WaPo responded in their original request, reaffirming their interest in Sullivan being involved.

Last night, the government filed the transcript of the call from John Dowd to Flynn’s lawyer Rob Kelner, as well as a filing blowing off at least one, and probably two, of Sullivan’s requests. The one that has gotten all the attention is that the government blew off Sullivan’s order to include all transcripts of audio recordings of Flynn’s conversations with Russian officials by claiming no other records are part of the guilt and sentencing record.

The government further represents that it is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record.

I also believe the government is being rather cute with this explanation about the Mueller Report.

With respect to the Report, the government represents that all of the information in the Report that the defendant provided to the Special Counsel’s Office has been unredacted, as has all of the information in the Report that others provided about the defendant. In those sections where the defendant’s conduct is discussed, limited remaining redactions pertain to the sourcing of information, such as references to grand jury subpoenas. See, e.g., Report, Volume I, pp. 169- 72.

Sullivan ordered the government to turn over all portions of the Report that relate to Flynn, not just those that describe information he provided to Special Counsel or that others provided about him. Plus, the government should have warned Sullivan they were going to withhold references to grand jury materials (their representation that these were just references stating that the call records the government used to clarify whom Flynn spoke to before and after his calls to Kislyak is pretty clearly correct), rather than just informing him of that in this filing.

But I also don’t understand how it is possible that this footnote does not relate to Flynn.

The Mueller Report admits elsewhere that Flynn was under counterintelligence investigation for his ties to Russia, on top of the investigation into his sleazy influence peddling for Turkey. It should be explained in this section, but is not — unless it is in this redacted footnote.

Of course, that’s precisely the kind of thing Sullivan would probably like to have made public, given his opinion that Flynn “arguably … sold [his] country out.” Which may be why the government excused not turning it over with the same indirect explanation — that even if this footnote “relates” to Flynn (and so would fall into his order) it isn’t pertinent for sentencing. The same indirect excuse they offered for withholding what are surely FISA transcripts.

All that said, I’m not sure the government’s intransigence is as big a deal as people are making out, nor am I convinced this is Bill Barr’s doing, to protect Trump.

To be sure, I think if the government were forced to turn over all transcripts where Flynn got recorded — even if it were just with Russian officials, and not anyone else a National Security Advisor designee would speak to — it would be fairly damning, and not just because the three Kislyak calls are really damning. There are more Kislyak-Flynn calls than the government wants to talk about right now: at a minimum, the calls surrounding a meeting Flynn and his spawn had in advance his RT-paid trip to Moscow in December 2015, as well as a call in early 2016. But there are likely even more from during the campaign period, calls that discuss policy issues that would be unseemly for a candidate to be discussing with the adversary who also happens to be trying to help Flynn’s boss get elected.

But even given Sullivan’s tendency to respond especially poorly to government defiance, I’m not sure this is going to escalate (in part, because it hasn’t yet). Had Sullivan really wanted to push this issue, he would have already ordered Flynn’s 302 be released, and he hasn’t. Plus, I think WaPo’s supplemental request for Flynn’s 302 will shift this debate to a more appropriate area of discussion.

Having been told by the government they would discretionarily release these files, the WaPo reply reiterated their original argument about First Amendment right of access to court filings. And Flynn’s original 302 is — because Sullivan ordered it to be, in response to a cute ploy by Flynn — a document already posted to the docket. So the WaPo’s argument that the full 302 should be disclosed should be fairly persuasive for Sullivan.

But the 302 also quotes directly from at least Flynn’s December 29, 2016 call with Kislyak,  because the FBI Agents decided (as recorded in the McCabe memo) that they would quote directly from the transcript if Flynn pretended not to remember this. For example, the FBI Agents tried to remind Flynn he had used the term “tit-for-tat” that he also used with KT McFarland’s assistant earlier in the day; they appear to quote the phrase, “don’t do something” to him twice.

Sullivan already has scheduled a hearing to discuss all this, on June 24. So between the supplemental WaPo request and that hearing, there’s plenty of opportunity to litigate all this without Sullivan blowing up.

In spite of a lot of suspicions, I suspect the non-responsive response came from DOJ’s National Security Division, not from Bill Barr. That’s true, in part, because DOJ as an institution is less patient with Sullivan’s quirky demands than they should be. That’s also true because there are almost certainly three levels of intercepts that might be responsive to Sullivan’s request that, at each level, would raise more and more heartburn for NSD, first for things they’d disclose about Flynn (and Trump), and then generally for the precedent it would set generally.

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

Mike Flynn Doesn’t Want the Brazenness of His Lies to become Public

When the WaPo graciously liberated some of the documents pertaining to Mike Flynn’s sentencing, I noted they hadn’t included his original 302. WaPo has now even more graciously submitted a request to Judge Emmet Sullivan (who seems keen to unseal as much of these materials as he can) to get that unsealed as well.

Their request reveals that both the government and Flynn did not consent to the request.

The Post has conferred with the parties in the Flynn Case (who have now appeared in this action as well), and they do not consent to this relief.

Though it sounds like the government is amenable to reviewing the 302 to see what can be released, as it did with the other documents; it just doesn’t want to be ordered to release the whole thing.

At a minimum, the Government should be required to reassess whether it believes continued sealing is necessary in light of changed circumstances, and to seek unsealing as appropriate (as it did with respect to the documents at issue in the Original Motion). At the teleconference among the parties, the Government agreed to initiate that review, with the expectation that any determination will be made by or before the agreed-upon response date of June 7, 2019. The Post appreciates the Government’s efforts on this front to date, but, ultimately, it is the Court that must determine whether compelling interests justify the continued redaction of any material that the Government seeks to keep under seal. See Press-Enter. Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 510 (1984).

The motion is silent about whether Flynn is objecting to any further unsealing of the FBI record that he got forced to reveal in the first place by being too cute in his sentencing submission, or just to personal details such as his date of birth coming out. But his date of birth (Christmas Eve in 1958) is one of the only personal details in the 302.

As I laid out when this came out, the other existing redactions probably include:

  • A comment about the fact that Russia did not acknowledge that Flynn’s GRU counterpart — whose death he used as an excuse to reach out to Sergey Kislyak — died in Lebanon rather than Russia
  • Details about how he excused his RT-funded trip to Moscow (and whether he acknowledged a meeting with his son and Sergey Kislyak before the trip) in December 2015
  • Details about the scope of the outreach to Kislyak he had made (possibly including discussions during the election)
  • Kislyak’s request that Flynn set up a conference call with Putin shortly after inauguration*
  • Details on their discussion about sending an American observer to Syrian peace talks hosted by Russia and Turkey in Astana, Kazakhstan (there are probably several references to this, as it is how Flynn excused this call)
  • Details on Israel’s feelings about Egypt’s attempt to condemn Israeli settlers*
  • A fairly extensive discussion about what Flynn claimed happened in the meeting where Jared Kushner asked Kislyak for a back channel to contact Russia*

The three bullets with asterisks are at least partly covered in the Mueller Report, and so should be releasable. Some of the others (such as the reference about the dead GRU counterpart and the mention of Israel and Egypt’s views), DOJ will likely want to keep redacted for foreign policy reasons.

Some of the other details, however, are among the counterintelligence details that I’ve noted don’t appear in the Mueller Report. It’ll be interesting to see whether DOJ continues to keep those details sealed.

In any case, thanks to WaPo’s graciousness, we may soon learn what uncharged lies Flynn told to cover that back channel discussion. They may make it easier for Judge Sullivan to find an excuse to give Flynn prison time.

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

In a Bid to Jettison Flynn, Trump Suggests Hope Hicks and Steve Bannon Lied to the FBI

In the wake of yesterday’s disclosures in the Mike Flynn docket, Judge Emmet Sullivan issued three somewhat confusing orders demanding that the government provide transcripts and Mueller Report passages relating to Flynn

With respect, Judge Sullivan, if you’re going to order additional files released, please also ask the government to release a less redacted version of Mike Flynn’s original 302, which is docket #62-1, redacted sections of which (especially pertaining to the meeting at which Jared Kushner asked for a back channel with Russia) appear in unredacted form in the Mueller Report, and which was inexplicably not included in the WaPo request.

In any case, perhaps because Sullivan asked for files that may be very damning (especially if they include the contacts Flynn had with Kislyak before the election, which aren’t discussed in the Mueller Report), Donald Trump now claims he didn’t know Flynn was under a counterintelligence investigation and would have replaced him had he known.

Of course he knew. Obama warned Trump against hiring Flynn on November 10, 2016. And it’s no longer just three former Obama officials who say that. According to the Mueller Report, both Hope Hicks and Steve Bannon not only corroborate that Obama warned Trump, but their FBI testimony makes it clear that Trump was really bugged about Obama’s warning.

Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10. [my emphasis]

No lesser Trump supporter than Bannon says that at the time Mike Flynn called up the Russian Ambassador and undermined the policy the President of the United States had just implemented, Trump was already concerned about the warnings that Obama gave him.

As I have noted, the evidence in the Mueller Report — as well as the silences about most earlier things Flynn did that raised counterintelligence concerns — suggest that Mueller has to believe that Flynn did what he did with Trump’s blessing. Otherwise Mueller would have had abundant evidence that Flynn, while freelancing, hiding that he was freelancing, and lying about it to the FBI, did things that directly benefitted the Russian state and undermined US policy.

Sullivan’s moves (which may be an attempt to explain why he raised such sharp questions about Flynn’s loyalty last December) may reveal evidence to substantiate that.

Which, in turn, may be why Trump is accusing two of his closest aides of lying to the FBI to pretend he didn’t get the warning from Obama they say he did.

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

Why Didn’t Mueller Hold Counterintelligence Suspect Mike Flynn Responsible for Sanctions Call?

There’s a problem with the way the Mueller Report describes events pertaining to Mike Flynn.

It describes how someone under active counterintelligence investigation for his ties to Russia and already on thin ice with the President-Elect got on the phone and, through the Russian Ambassador, persuaded Vladimir Putin to hold off on retaliating for US sanctions. It describes how Flynn avoided leaving a paper trail of that call. Ultimately, the report remains inconclusive about whether Flynn made that call on his own initiative — which would seem to bolster the case he had suspect loyalties with the Russians — or at the direction of the President — in which case his actions would be appropriate from a constitutional standpoint (because this is the kind of thing the President can choose to do), but not a legal one (because he was purposely hiding it from the Obama Administration). One or the other would seem to be a necessary conclusion, but the Mueller Report reaches neither one.

In part, that’s because both Flynn and KT McFarland seem to have protected President Trump’s plausible deniability even after both got caught lying about these events. But it also appears that Mueller is more certain about the answer than he lets on in the public report.

This is the subject that, in my post noting that the Mueller Report has huge gaps precisely where the most acute counterintelligence concerns about Trump’s relationship with Putin are, I suggested created a logical problem for the report as a whole.

If it is the case that Flynn did what he did on Trump’s orders — which seems the only possible conclusion given Mueller’s favorable treatment of Flynn — then it changes the meaning of all of Trump’s actions with regard to the Russian investigation, but also suggests that that conclusion remains a counterintelligence one, not a criminal one.

Mike Flynn was under active counterintelligence investigation but he’s not an Agent of Russia

According to the Mueller Report, the first Rosenstein memo laying out the detailed scope of the investigation, dated August 2, 2017, included “four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump.” Two of those four must be his unregistered sleazy influence peddling for Turkey (which he got to plead off of as part of his plea agreement) and the Peter Smith operation to obtain Hillary’s deleted emails (about which his testimony is reflected in the Mueller Report).

Then there’s the counterintelligence investigation into Flynn. We’ve known that the FBI had a counterintelligence investigation into Flynn since before HPSCI released its Russian Report, and a later release of that report described that the investigation was still active when the FBI interviewed Flynn on January 24, 2017.

A key focus of that investigation —  one reflected in Flynn’s January 24, 2017 302 — was his paid attendance at a December 10, 2015 RT event in Moscow in December 2015, where he sat with Putin. The Mueller Report makes just one reference to that event, and only as a way of describing the public reporting on Trump flunkies’ ties to Russia during the campaign.

Beginning in February 2016 and continuing through the summer, the media reported that several Trump campaign advisors appeared to have ties to Russia. For example, the press reported that campaign advisor Michael Flynn was seated next to Vladimir Putin at an RT gala in Moscow in December 2015 and that Flynn had appeared regularly on RT as an analyst.15

15 See, e.g., Mark Hosenball & Steve Holland, Trump being advised by ex-US. Lieutenant General who favors closer Russia ties, Reuters (Feb. 26, 2016); Tom Hamburger et al., Inside Trump’s financial ties to Russia and his unusual flattery of Vladimir Putin, Washington Post (June 17, 2016). Certain matters pertaining to Flynn are described in Volume I, Section TV.B.7, supra.

However, in addition to that trip, the FBI must have been scrutinizing earlier Kislyak contacts that don’t show up in the Report at all:

  • A meeting on December 2, 2015 (described in the HPSCI report) that Kislyak that Flynn and his failson attended in advance of the RT trip at the Russian Embassy
  • A call to Kislyak sometime after GRU head Igor Sergun’s death in Lebanon on January 6, 2016; in his interview with the FBI; Flynn said he called to offer condolences, though he used that excuse for other calls that involved substantive policy discussions; he also claimed, not entirely credibly, not to be associated with the Trump campaign yet
  • Other conversations during the campaign that Flynn revealed to friends that otherwise don’t show up in public documents

In one of the only (unredacted) references to the counterintelligence investigation into Flynn, the Mueller Report describes that Flynn’s contacts with Kislyak became a key focus of that investigation.

Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian government.105 Flynn’s contacts with Kislyak became a key component of that investigation.10

But that passage doesn’t reveal the scope of those contacts and, in spite of detailed analysis of other people’s contacts with Kislyak (including an invite to JD Gordan to his residence that appears similar to the December 2015 one Kislyak extended to Flynn and his son), the Report doesn’t mention those earlier contacts.

Perhaps far more interesting, in the report’s analysis of whether any Trump aide was an agent of Russia, it does not include Flynn in the paragraph explaining why Paul Manafort, George Papadopoulos, and Carter Page were not charged as such. Instead, his foreign influence peddling is treated in a separate paragraph discussing just Turkey.

In addition, the investigation produced evidence of FARA violations involving Michael Flynn. Those potential violations, however, concerned a country other than Russia (i.e., Turkey) and were resolved when Flynn admitted to the underlying facts in the Statement of Offense that accompanied his guilty plea to a false-statements charge. Statement of Offense, United States v. Michael T Flynn, No. l:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”). 1281

The footnote to that paragraph, which given the admission elsewhere that a separate counterintelligence investigation into Flynn focused on Russia, likely deals with Russia, is entirely redacted for Harm to Ongoing Matters reasons.

While we can’t be sure (hell, we can’t even be totally sure this does relate to Russia!), this seems to suggest that the investigation into Russian efforts to cultivate Flynn is ongoing, but he has been absolved of any responsibility for — as an intelligence officer with 30 years of counterintelligence training — nevertheless falling prey to such efforts.

All of which is to say that, along with the descriptions of Trump’s most alarming interactions with Russians including Vladimir Putin, many of Flynn’s contacts with Kislyak and other Russians (including not just Putin but the guy who headed GRU until just before the election hacking started in earnest in January 2016) appear to be treated as counterintelligence information not suitable for public sharing.

The Mueller Report deliberately obscures key details of the timeline on the sanctions call

That’s important to note, because the counterintelligence conclusion on Flynn has to be utterly central to the analysis of Trump’s attempt to obstruct the investigation into Flynn.

The two discussions in the Mueller Report (Volume I pages 168 to 173 and Volume II pages 24 to 48) of Flynn’s December 2016 conversations with Sergey Kislyak are totally unsatisfying, probably in part because two key witnesses (Flynn and KT McFarland, and possibly others including Steve Bannon) lied when the FBI first interviewed them about the calls; they had also created a deliberately misleading paper trail for the events.

In both places, the Report provides times for some events on December 29, but obscures the most critical part of the timeline. I’ve put the Volume I language at the end of this post. It provides the following timeline for December 29, 2016:

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: [Transition Team Member] Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland calls Flynn, but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

Sometime in here but the Report doesn’t tell us precisely when: Flynn talks to Michael Ledeen, KT McFarland, and then Kislyak. [my emphasis]

4:43PM: McFarland emails other transition team members saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

After the briefing: McFarland and Flynn speak by phone. Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

The next day, December 30, 2016 — after Putin announced they would not retaliate to Obama’s sanctions — Flynn sent a text message to McFarland that very deliberately did not reflect the true content of his communication with Kislyak, reportedly because he wanted to hide that from the Obama Administration (the Trump team had falsely told Obama they would not fuck with their existing policy initiatives).

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.126

On December 31, after Kislyak called again to tell Flynn that Putin had decided not to retaliate because of the Trump Administration request not to, he and McFarland communicated again about their attempts to convince Russia not to respond to sanctions. Flynn spoke with others that day but “does not recall” whether they discussed the sanctions, though he remembers (but Bannon does not) that Bannon seemed to know about Flynn’s conversation with Kislyak.

The narrative for the same events in the obstruction section has less detail, but infuriatingly, similarly manages to leave out all the details (in bold above) about when Flynn spoke to McFarland and when he called Kisylak.

The thing is, Mueller knows precisely when those Flynn calls happened. The Volume I version of events make it clear they have the call records of Flynn, Michael Ledeen, and McFarland that would provide a precise timeline.

They just refuse to provide those times and the times of key emails, which would add to the clarity about whether Trump learned of Flynn’s plans before he contacted Kislyak.

In the “Intent” discussion regarding obstruction, however, the report suggests that the Trump briefing, where sanctions did come up, preceded the first Flynn call to Kislyak (even though the timeline here suggests it did not).

In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak.

That’s particularly interesting given that the Volume II discussion of events describes how, after Trump fired Flynn, he also fired KT McFarland but offered her a position as Ambassador to Singapore. There’s very little discussion of the explanation for her firing, but they do describe how Trump tried to make McFarland write a memo — very similar to the false one he tried to make Don McGahn write denying that Trump had ordered him to have Rod Rosenstein removed — denying that he had any role in Flynn’s discussion with Kislyak about sanctions. McFarland did not write the memo, as she explained in a Memo for the Record, because she did not know whether Trump had spoken with Flynn or with Russia directly.

The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions.253 Priebus said he told the President he would only direct McFarland to write such a letter if she were comfortable with it.254 Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256

256 KTMF _00000047 (McFarland 2/26/ 17 Memorandum_ for the Record) (“I said I did not know whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”); McFarland 12/22/ 17 302, at 17.

Again, at a minimum, Mueller knows if Trump called Flynn, and may know if Trump called Kislyak or — more likely — Putin. But he’s not telling.

Trump was already pissy with Flynn, so why didn’t he blame him for the sanctions calls?

There’s one more contradictory detail about Trump’s behavior in this narrative.

According to enough witnesses to make it a reliable claim, Trump had already soured on Flynn in December 2016, before all this blew up (but not before Obama warned Trump and Elijah Cummings warned Mike Pence about Flynn’s suspect loyalties).

Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10

As I’ve noted before, Trump made the same complaint to Jim Comey in their “loyalty demand” dinner on January 27, 2017 — but he did so in the context of Flynn not informing him that Vladimir Putin had beaten Theresa May to congratulating him about his inauguration.

All these details — including that Flynn publicly informed Trump of Putin’s call — should make Flynn a bigger counterintelligence concern, not one that could be dismissed more easily than Page and Manafort and Papadopoulos.

Unless Mueller had more certainty that Trump was in the loop of these sanctions discussions — either through Flynn or directly with Putin — than he lets on in the public report.

Mike Flynn’s Interviews with Prosecutors

To sum up, Mueller knows that someone already under investigation for his suspect calls to Russia and Sergey Kislyak got on the phone with Kislyak and undercut the Obama Administration’s attempt to punish Russia for its election interference. Flynn deliberately created a false record of that call, then lied about it when it became public the following month, and continued to lie about it when the FBI asked him about it.Trump allegedly got pissy that Flynn’s counterintelligence exposure had already been raised by Obama, but also got pissy that Flynn wasn’t being obsequious enough to Putin. But, when this all began to blow up in the press, rather than firing Flynn right away for being a counterintelligence problem — the outcome Sally Yates clearly expected would be the no-brainer result — Trump instead repeatedly tried to protect Flynn.

Which is why the likelihood that a key part of Flynn’s cooperation, that relating to the counterintelligence side of the equation, is so interesting.

As I noted when the addendum showing Flynn’s cooperation came out, it likely broke into the Turkish influence peddling [A], two (or maybe three?) topics relating to Trump [B], as well as more classified part of the investigation conducted under Mueller [C].

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

The footnotes from the Mueller Report describing what Flynn told prosecutors when seems to reinforce this.

  1. November 16, 2017: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call
  2. November 17, 2017: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you”
  3. November 19, 2017: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump
  4. November 20, 2017: Whether he told others at MAL, response to Ignatius
  5. November 21, 2017: Whether he told others at MAL, response to Ignatius, meeting with Trump
  6. November 29, 2017: Peter Smith
  7. January 11, 2018: November 30 meeting with Kislyak
  8. January 19, 2018: Flynn did not have specific recollection about telling POTUS on January 3, 2017
  9. April 25, 2018: Peter Smith
  10. May 1, 2018: Peter Smith
  11. September 26, 2018: Proffer response on meetings with Foresman

We know from court filings that Flynn had 19 interviews with prosecutors, of which four pertain to his sleazy influence peddling with Turkey. Here’s what that seems to suggest about his interviews (assuming, probably incorrectly, that they didn’t cover multiple topics at once):

  • Turkish influence peddling: 4 interviews, unknown dates
  • Transition events, 7 interviews: 11/16/17, 11/17/17, 11/19/17, 11/20/17, 11/21/17, 1/11/18, 1/19/18
  • Peter Smith, 3 interviews: 11/29/17, 4/25/18, 5/1/18
  • Counterintelligence: Remaining 5 interviews???, unknown dates

It’s possible, however, there’s a third “links” topic pertaining to Transition era graft, which for scope reasons would not appear in the Mueller Report.

The possibility that Flynn may have had five interviews dedicated to a counterintelligence investigation that implicated Trump would make this Brian Ross story far more interesting. As the Report lays out, when hints that Flynn flipped first came out on November 22, 2017, one of Trump’s lawyers (probably John Dowd) left a voice mail message (!!!) with one of Flynn’s lawyers (probably Rob Kelner). He specifically wanted a heads up about anything that “implicates the President” which would create a “national security issue.”

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains ….

The following day, Trump’s lawyer told Flynn’s that cooperating would reflect hostility to the President.

A week later, once the plea was official on December 1, Flynn had the following leaked to ABC.

During the campaign, Trump asked Flynn to be one of a small group of close advisors charged with improving relations in Russia and other hot spots. The source said Trump phoned Flynn shortly after the election to explicitly ask him to “serve as point person on Russia,” and to reach out personally to Russian officials to develop strategies to jointly combat ISIS.

[snip]

“Flynn is very angry,” the confidant told ABC News Friday. “He will cooperate truthfully on any question they ask him.” [my emphasis]

Only, originally, the story read that Trump asked Flynn to reach out to Russia before the election. The story is often cited as one of the big gaffes of the Russian investigation, but Mother Jones has since corroborated the pre-election timeline with two Flynn associates.

For some reason, Mueller did not hold Mike Flynn responsible for — at a time when he was under active counterintelligence investigation for his ties to Russia — undercutting the official policy of the US on punishing Russia for its election year attack. I wonder whether the content of up to five counterintelligence interviews with Flynn may explain why.

As they are elsewhere, the Washington Post is trying to liberate the filings about Flynn’s cooperation that would explain all this. On Thursday, Emmet Sullivan — the same judge who, after seeing all the sealed filings in Flynn’s case, used some really inflammatory language about Flynn’s loyalty — set a briefing schedule for that effort. Then, acting on his own on Friday, Sullivan scheduled a hearing for June 24 (after the next status report in Flynn’s case but before he would be sentenced) to discuss liberating those filings.

So maybe we’ll find out from the WaPo’s efforts to liberate those documents.

Timeline of known Flynn investigation

November 10, 2016: Obama warns Trump that Mike Flynn’s name kept surfacing in concerns about Russia.

November 18, 2016: Trump names Flynn National Security Adviser.

November 18, 2016: Elijah Cummings warns Mike Pence of Flynn’s Turkish lobbying.

Shortly after inauguration: On “first” call with Kislyak, Flynn responds to Ambassador’s invitation to Russian Embassy that, “You keep telling me that,” alerting others to previous contacts between them.

January 24, 2017: In interview with FBI, Flynn lies about his contacts with Sergey Kislyak.

January 26 and 27, 2017: Sally Yates warns the White House about Flynn’s lies.

February 2, 2017: WHCO lawyer John Eisenberg reviews materials on Flynn’s interview.

February 13, 2017: Flynn fired.

July 19, 2017: Peter Strzok interviewed, in part, about Flynn interview, presumably as part of obstruction investigation.

November 16, 2017: Interview covers: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call.

November 17, 2017: Interview covers: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you.”

November 19, 2017: Interview covers: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump.

November 20, 2017: Interview covers: Whether he told others at MAL, response to Ignatius.

November 21, 2017: Interview covers: Whether he told others at MAL, response to Ignatius, meeting with Trump.

November 22, 2017: Flynn withdraws from Joint Defense Agreement; Trump’s lawyer leaves a message for Flynn’s lawyer stating, in part, “if… there’s information that implicates the President, then we’ve got a national security
issue,…so, you know,…we need some kind of heads up.”

November 23, 2017: Flynn’s attorney returns Trump’s attorney’s call, the latter says cooperation would reflect hostility to the President.

November 29, 2017: Interview covers Peter Smith.

December 1, 2017: Flynn pleads guilty, has story leaked to Brian Ross that his cooperation covers Trump’s orders that he take “serve as point person on Russia,” originally stating that the order preceded the election; the story is corrected to say the order comes ” shortly after the election.” Two Flynn associates subsequently told Mother Jones the contacts did start before the election.

January 11, 2018: Interview covers November 30 meeting with Kislyak.

January 19, 2018: Interview covers Flynn did not have specific recollection about telling POTUS on January 3, 2017.

April 25, 2018: Interview covers Peter Smith.

May 1, 2018: Interview covers Peter Smith.

September 17, 2018: Status report asking for sentencing.

September 26, 2018: Flynn’s attorney offers proffer response on meetings with Bob Foresman.

December 18, 2018: After Judge Emmet Sullivan invokes treason and selling out his country, Flynn delays sentencing.


The Volume I Narrative about December 29, 2016

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.126

The sanctions were announced publicly on December 29, 2016. 1231 At 1 :53 p.m. that day, McFarland began exchanging emails with multiple Transition Team members and advisors about the impact the sanctions would have on the incoming Administration. 1232 At 2:07 p.m., a Transition Team member texted Flynn a link to a New York Times article about the sanctions. 1233 At 2:29 p.m., McFarland called Flynn, but they did not talk. 1234 Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237 McFarland also believed she may have discussed the sanctions with Priebus, and likewise told him that Flynn was scheduled to talk to Kislyak that night. 1238 At 3: 14 p.m., Flynn texted a Transition Team member who was assisting McFarland, “Time for a call???”1239 The Transition Team member responded that McFarland was on the phone with Tom Bossert, a Transition Team senior official, to which Flynn responded, “Tit for tat w Russia not good. Russian AMBO reaching out to me today.” 1240

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252 During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election. 1253 McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians.1254 McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1255 President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. 1256 McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. 1257

After the briefing, Flynn and McFarland spoke over the phone. 1258 Flynn reported on the substance of his call with Kislyak, including their discussion of the sanctions. 1259 According to McFarland, Flynn mentioned that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration.1260 McFarland also gave Flynn a summary of her recent briefing with President-Elect Trump. 1261

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