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Bill Barr Not Only Overrode Emmet Sullivan’s Brady Ruling, He Explicitly Pre-Empted Sullivan’s Covington Review

In a post last Monday, I laid out four different ways that Billy Barr was pursuing to guarantee that Mike Flynn would be excused for calling up the country that had just attacked us in 2016 and asking them not to worry about the sanctions imposed as a result. In it, I described how, in the wake of Emmet Sullivan’s decision that a bunch of files Flynn had demanded neither counted as Brady material nor merited dismissal, Barr had asked St. Louis US Attorney Jeffrey Jensen to review the files at issue in Sullivan’s ruling.

Approximately the week before Flynn filed his motion to dismiss, Barr appointed the St. Louis US Attorney, Jeffrey Jensen, to review Flynn’s prosecution.

It’s hard to overstate how abusive this was, on Barr’s part. When Barr did this, Judge Sullivan had already ruled there was no reason to dismiss the prosecution, and ruled that the items now being produced were not discoverable under Brady. What the review has done, thus far, has been to provide Flynn with documents that someone — presumably Derek Harvey — had reviewed, so he can obtain stuff even Judge Sullivan ruled he was never entitled to receive.

Moreover, Barr did this even though he had already appointed John Durham to review what has come to incorporate Flynn’s prosecution under a criminal standard. Durham could obtain all this evidence himself as part of his investigation, but he can only do something with it if it is evidence of a crime. Effectively, Barr has asked two different prosecutors to review this prosecution, the latter effort of which came after a judge had already ruled against it.

That said, given the prospect that litigation over Covington’s supposed incompetence may be highly damning to Flynn’s reputation, the Jensen review provides Barr with another option. He can use it as an excuse to order prosecutors to withdraw their opposition to Flynn’s motion to dismiss. It’s unclear whether Jensen has found anything to merit that yet, and Jensen appears to be engaging in analysis that might undercut where Barr wants to go with this (though given how closely Deputy Attorney General Jeffrey Rosen’s office is involved in this, I doubt that will happen). That said, Barr’s treatment of the Mueller Report proves that he has no compunction about claiming that a prosecutor’s conclusions say one thing when in fact they say something very different. And so at any moment, Barr may order prosecutors to effectively wipe away the prosecution of General Flynn.

In it, I underestimated Barr’s brazenness. He went further than ordering prosecutors to withdraw their opposition to Flynn’s motion to dismiss. He affirmatively moved to withdraw the case, with prejudice. Notably (given Barr’s past misrepresentation of what prosecutors have said), DOJ did not include anything in writing from Jensen’s review. While Jensen has issued a short statement in support of the dismissal, neither the public nor Sullivan have seen the so-called analysis Jensen purportedly did in this review.

Still, I was totally correct that “at any moment” Barr might order prosecutors to “effectively wipe away the prosecutor of General Flynn.”

The post laid out some key issues of timing, however. Of particular note, on Friday, prosecutors would have submitted a filing explaining what they planned to do with the 600 pages they had received from Covington & Burling elaborating on documents already public that show Flynn didn’t fully disclose things he later admitted to under oath. Given what was already public — which showed that even Flynn’s sworn declaration in his motion to dismiss did not accurately present Covington’s representation — those documents, if made public, would likely be very damning to Flynn.

But since Flynn filed this motion, Covington has turned over 500 additional pages of evidence to prove their competence, as well as 100 pages of sworn declarations. Sidney Powell has made aggressive claims that damage Covington’s reputation, they appear to have gotten paid nothing for representing Flynn, and Judge Emmet Sullivan showed some interest in putting everyone under oath to fight this out. So it’s possible that this will lead to a spectacular hearing where very reputable Republican lawyers will have an opportunity to disclose how much Flynn lied to them.

[snip]

On May 8, the government will provide a status update or proposed briefing schedule on Motion to Withdraw. Most likely, this will be an anodyne filing. But it’s possible we’ll get a summary of what Covington included in the 600 pages they turned over, which may be very damaging to Flynn’s case.

That is, a week ago, I noted that Flynn’s efforts to blow up his prosecution might soon backfire.

I also noted that Barr had two parallel efforts to undo the prosecution of Mike Flynn: Jensen’s, and John Durham’s. John Durham has been reviewing the first six months of the Russian investigation for a year already. He has had access to this information for that entire time. But even on top of the Durham review, Barr appointed Jensen.

In his interview the other day, Barr bragged about why he had done so. He had to “move quickly,” the Attorney General admitted, because of the motions that were filed in this case.

I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and ’17. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.

And that is part of John Durham, U.S. Attorney John Durham’s portfolio. The reason we had to take this action now and why U.S. Attorney Jeff Jensen came in was because it was prompted by the motions that were filed in that case. And so we had to sorta move more quickly on it. But John Durham is still looking at all of this.

Except Barr didn’t allow those pleadings to play out.

Indeed, Barr acted on Thursday to prevent the ethical consequence of Flynn’s motion to dismiss based off a claim Covington was incompetent to occur, the public disclosure of those filings showing Covington’s representation of Flynn.

Billy Barr took a breathtaking step on Thursday to pre-empt Sullivan’s review of whether Covington really provided Flynn incompetent representation, or instead advised him wisely to dodge the accountability of his secret work for a frenemy government.

As such, DOJ has overridden the authority of an Article III judge at least twice: Sullivan’s previous ruling on Brady, and his upcoming review of Flynn’s claim that his lawyers were incompetent.

Barr said he was tasking Jensen to do more.

Well, you know, I don’t wanna, you know, we’re in the middle of looking at all of this. John Durham’s investigation, and U.S. Attorney Jensen, I’m gonna ask him to do some more work on different items as well.

Given Barr’s unbridled efforts to excuse Flynn’s actions secretly working with foreign governments to undermine the stated policy of the United States, I suspect he may ask Jensen to invent some excuse to back out of the government appeal in Flynn’s partner, Bijan Kian’s case.

Update: I also predicted the tie between the dangers of the motion to withdraw and the Jensen review in February, when it became public.

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

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

In the wake of Bill Barr’s intervention last week, Flynn moved to withdraw all his pending motions, without prejudice, including the motion to withdraw his guilty pleas. Given that, as part of that motion, Flynn submitted a sworn filing that materially conflicts with other sworn statements Flynn has made before this and Judge Contreras’ court, as well as before a grand jury, and given that Barr went out and admitted on TV that those filings were the reason he acted in such an unprecedented fashion to pre-empt an Article III judge’s decision, it seems that Barr’s actions actually don’t affect that motion to withdraw. Sullivan could reject that, since parts of it are unaffected by Barr’s actions.

Unlike Barr, Judge Sullivan is not predictable. So I’m not predicting that will happen. But among the many pending requests before Sullivan is a request to unring yet another Flynn statement that might be a material lie, one he does not have to accept.

Judge Sullivan Has Already Rejected Most of Timothy Shea’s DOJ Flynn Pardon

In this post, I laid out how Acting DC US Attorney Timothy Shea claimed DOJ had “newly” acquired a bunch of information which led it to decide to ask Judge Emmet Sullivan to dismiss Mike Flynn’s prosecution.

Except none of the information was new.

The table below shows what is known about the documents Shea relied on yesterday, using the exhibit numbers from DOJ’s filing. Some were already public, another had been provided to Flynn, others were probably reviewed in investigations of the circumstances of Flynn’s interviews (as explained below). It’s hard to square Shea’s claim that some of this was newly declassified, as most things that had once been classified had already been declassified publicly (and DOJ reclassified two lines from an Andrew McCabe memo, while declassifying a few more lines of it). Other documents were generated as part of this investigation, and so could in no way be deemed “new” to the prosecutors who generated them (nor to Rod Rosenstein, who approved Flynn’s prosecution). As for the rest, Flynn asked for them last year as part of a Brady motion, and Sullivan rejected those requests in a meticulous 92-page opinion written in December.

Effectively, then, Bill Barr appointed Jeffrey Jensen to “review” Flynn’s prosecution for one purpose: to override Judge Sullivan’s Brady decision last December.

As I keep repeating, it’s never a good idea to predict what Judge Sullivan will do. I expect he’ll review these exhibits closely and see whether they change his mind about DOJ’s representations that none of them were helpful to Flynn. He might find the Bill Priestap notes troubling, but that document is not only deliberative (and therefore always excluded from Brady), but it states clearly that, “our goal is to determine if Mike Flynn is going to tell the truth about his relationship w/Russians,” a goal Sullivan has already deemed proper.

It’s possible, however, that Sullivan will view these documents and recognize that they don’t change the order he already issued, finding Flynn’s lies material and his prior guilty pleas still valid. If he does, he may well be peeved that DOJ tried to overturn a judge’s ruling by bureaucratic fiat.

DOJ may not have had two FBI documents

There are just two documents that DOJ probably wouldn’t have already had or reviewed. One is a draft memo closing the investigation into Flynn. The other is the Jim Comey transcript briefing the House Intelligence Committee on the Flynn investigation. Because the former was an FBI document, it’s not clear it would ever have made it into DOJ files. And it dates to earlier than the Brady requests Flynn made last year. That said, the fact that FBI had decided to close out the investigation up until they discovered Flynn’s calls with Sergey Kislyak was public before Flynn pled guilty a second time, when he swore that he had no concerns about Brady. And the circumstances surrounding the non-closure of this investigation made it into 302s otherwise accounted for.

As to the Comey transcript, DOJ said it did not have an unredacted copy of this last year. But like the draft closure, the facts in it have long been public, most notably in the House Intelligence Report on their Russian investigation, which was done nine months before Flynn pled guilty again.

DOJ reviewed Page-Strzok texts and the meetings before and after Flynn’s interview

One of the things DOJ submitted as “new” information yesterday were Page-Strzok texts. We already know that DOJ IG reviewed every one of those, some of them multiple times, particularly if they pertained to Flynn or other Trump people.

As noted, documents pertaining to meetings before and after Flynn’s interview would likely have been reviewed by DOJ already, because DOJ repeatedly chased down allegations made about those meetings. Flynn already got an FBI Inspection Division 302 reflecting Peter Strzok being interviewed about some of these allegations and a Mueller 302 reflecting Lisa Page being interviewed about other ones. The government repeatedly looked into allegations that Andrew McCabe said, “First we fuck Flynn, then we fuck Trump,” at the meeting preparing for the Flynn interview (which is presumably what these notes record).

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, 4 who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time.

In fact, Bill Priestap’s notes of what appear to be the McCabe meeting show no such claim. He does reflect them talking about how to deal with Flynn’s comments. But they record no reference to Trump.

Emmet Sullivan reviewed two of these 302s

Of particular note, Emmet Sullivan already reviewed several of these documents. In his Brady opinion from December, he described an in camera review he did in December 2018, in part to make sure the summaries of the Mary McCord and Sally Yates 302s was adequate disclosure.

As to Requests a through f and Request i, the government has provided Mr. Flynn with: (a) “information from interviews with [Mr.] McCabe that could reasonably be construed as favorable and material to sentencing”; (b) “information that could reasonably be construed as favorable and material to sentencing about such pre-interview discussions, including the language quoted in the request”; (c) “information about such post-interview debriefings that could reasonably be construed as favorable and material to sentencing”; (d) “information from former [Principal] Associate Deputy Attorney General Matthew Axelrod’s interview report that could reasonably be construed as favorable and material to sentencing”; (e) “information from [Ms.] McCord’s interview report that could reasonably be construed as favorable and material to sentencing, including the information quoted in the request”; (f) “information from [Ms.] Yates’ interview report that could reasonably be construed as favorable and material to sentencing, including the information quoted in the request”;

[snip]

Based on an in camera review of the government’s sealed submissions to the Court on December 14, 2018, see, e.g., Min. Order of Dec. 17, 2018; Gov’t’s Opp’n, ECF No. 122 at 16 n.8; Gov’t’s Notice of Disc. Correspondence, ECF No. 123 at 3, the Court agrees with the government that the requested information in Requests a through f and Request i has already been provided to Mr. Flynn in the form of appropriate summaries, see Gov’t’s App. A, ECF No. 122-1 at 6-7.

Given that Sullivan accounted for these documents, his materiality analysis is unlikely to change

As noted, Sullivan might decide that some of these documents should have been provided under Brady, in spite of his ruling on them. But unless he does, it’s unlikely his view on the materiality of Flynn’s lies will change, contrary to the footnote in Shea’s memo yesterday.

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

That’s because Sullivan knew when he wrote his opinion that FBI had almost closed the investigation of Flynn but reopened it after learning of Flynn’s comments to Kislyak. There’s nothing about this discussion that would change given what was disclosed yesterday.

Mr. Flynn argues that his false statements to the FBI were not “material” for two reasons. See Def.’s Reply, ECF No. 133 at 31-32. First, Mr. Flynn contends that his conversations with the Russian Ambassador were unrelated to the FBI’s investigation into Russia’s efforts to interfere in the 2016 presidential election because the interviewing FBI agents did not ask him a single question about election interference or any coordination between Russia and the Trump campaign. See id. Next, Mr. Flynn argues that the FBI had recordings and transcripts of his conversations with the Russian Ambassador, arguing that the FBI “knew exactly what was said” and “nothing impeded [the FBI’s] purported investigation.” Def.’s Sur-Surreply, ECF No. 135 at 12. The government responds that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s “counterintelligence investigation into whether individuals associated with the campaign of then candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election.” Gov’t’s Surreply, ECF No. 132 at 10.

[snip]

Mr. Flynn has a fundamental misunderstanding of the law of materiality under 18 U.S.C. § 1001(a)(2), which requires a false statement to be “material.” United States v. Stone, 394 F. Supp. 3d 1, 12 (D.D.C. 2019) (materiality is a necessary element to establish a violation of the false statements statute). The Supreme Court has instructed that “[t]he statement must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.’” United States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); accord United States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979) (“Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects.”). But “a statement need not actually influence an agency in order to be material.” Moore, 612 F.3d at 701.

As a matter of law, the government need not prove that Mr. Flynn’s false statements impeded the FBI’s investigation in order to establish the materiality element. See id. at 702 (holding that defendant’s false statement “was capable of affecting the Postal Service’s general function of tracking packages and identifying the recipients of packages entrusted to it” and defendant’s false information “could have impeded the ability of the Postal Service to investigate the trafficking of narcotics through the mails”). And Mr. Flynn’s multiple false statements were material regardless of the interviewing FBI agents’ knowledge of any recordings and transcripts of his conversations with the Russian Ambassador—the existence or nonexistence of which have neither been confirmed nor denied by the government, see Gov’t’s App. A, ECF No. 122-1 at 5—and whether the FBI had knowledge of Mr. Flynn’s exact words during those conversations. See United States v. Safavian, 649 F.3d 688, 691 (D.C. Cir. 2011) (rejecting defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them”).

Mr. Flynn’s other argument—that his false statements about his conversations with the Russian Ambassador were not related to the investigation into Russia’s efforts to interfere in the election—is unavailing. “Application of § 1001 does not require judges to function as amateur sleuths, inquiring whether information specifically requested and unquestionably relevant to the department’s or agency’s charge would really be enough to alert a reasonably clever investigator that wrongdoing was afoot.” United States v. Hansen, 772 F.2d 940, 950 (D.C. Cir. 1985). Here, Mr. Flynn’s false statements to the FBI about his conversations with the Russian Ambassador were relevant to the FBI’s inquiry. See SOF at 1 ¶ 1. It is undisputed that the FBI had already opened the investigation to, among other things, investigate the “nature of any links between individuals associated with the [Trump] Campaign and Russia” at the time of Mr. Flynn’s January 24, 2017 interview. Id. A “lie distorting an investigation already in progress” could impact the FBI’s decision to act and follow leads. Hansen, 772 F.2d at 949; accord United States v. Stadd, 636 F.3d 630, 639 (D.C. Cir. 2011) (defendant’s false statements were material because the truth “would have raised red flags that would have led [the agency’s ethics advisor] to inquire further”). As Judge Amy Berman Jackson has noted, “it is axiomatic that the FBI is not precluded from following leads and, if warranted, opening a new investigation based on those leads when they uncover information in the course of a different investigation.” Kelley v. FBI, 67 F. Supp. 3d 240, 287 n.35 (D.D.C. 2014). The Court therefore finds that Mr. Flynn’s false statements were material within the meaning of 18 U.S.C. § 1001(a)(2).

It’s hard to look at the extensive record of the discussion about whether Flynn had lied submitted yesterday and not conclude that they presented DOJ with some real conflict about the investigation. Moreover, Comey’s comments, which preceded a number of investigative steps (like obtaining Flynn’s call records and interviews with KT McFarland and others), show that the investigation changed as it developed more proof that Flynn had knowingly lied.

When Flynn tried to get this information, Sullivan reminded him he had already sworn it didn’t matter

Finally, Shea’s silence about Flynn’s plea allocution before Sullivan is particularly damning given that Sullivan addressed it in his Brady motion in December. He pointed out that Flynn had already sworn, under oath, that he was not challenging the circumstances of his interview.

Six days later, on December 7, 2017, the case was randomly reassigned to this Court, which scheduled a sentencing hearing for December 18, 2018. During that hearing, the Court conducted an extension of the plea colloquy in view of statements made in Mr. Flynn’s sentencing memorandum that raised questions as to whether Mr. Flynn sought to challenge the circumstances of his FBI interview. In response to the Court’s questions, Mr. Flynn maintained his plea of guilty upon the advice of counsel. Mr. Flynn neither challenged the conditions of his FBI interview nor expressed any concerns with the government’s obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and this Court’s Standing Brady Order of February 16, 2018.

[snip]

Finally, the Court summarily disposes of Mr. Flynn’s arguments that the FBI conducted an ambush interview for the purpose of trapping him into making false statements and that the government pressured him to enter a guilty plea. The record proves otherwise. See, e.g., Def.’s Br., ECF No. 109 at 4 (arguing that the government was “putting excruciating pressure on [Mr. Flynn] to enter his guilty plea”); Def.’s Reply, ECF No. 133 at 5 (arguing that “high-ranking FBI officials orchestrated an ambush-interview . . . for the purpose of trapping him into making false statements they could allege as false”); id. at 6 (asserting that the FBI and others “plot[tted] to set up an innocent man and create a crime”); id. at 18 (contending that “[t]he FBI had no factual or legal basis for a criminal investigation” and that the FBI’s investigation was a “pretext for investigating Mr. Flynn”); id. at 27 (arguing that “Mr. Flynn was honest with the [FBI] agents to the best of his recollection at the time, and the [FBI] agents knew it”).

The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI. E.g., Sentencing Hr’g Tr., ECF No. 103 at 11 (affirming it was not his “contention that Mr. Flynn was entrapped by the FBI”); id. (affirming that “Mr. Flynn’s rights were [not] violated by the fact that he did not have a lawyer present for the interview”); Plea Agreement, ECF No. 3 at 10 (“I fully understand this [Plea] Agreement and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound.”); Plea Hr’g Tr., ECF No. 16 at 29 (affirming that no one “forced, threatened, or coerced [Mr. Flynn] in any way into entering this plea of guilty”). And it is undisputed that Mr. Flynn not only made those false statements to the FBI agents, but he also made the same false statements to the Vice President and senior White House officials, who, in turn, repeated Mr. Flynn’s false statements to the American people on national television. See Gov’t’s Surreply, ECF No. 132 at 8.

Just six months ago, Emmet Sullivan examined the substance of the arguments that DOJ claims are new. He not only found that they did not affect Flynn’s guilty plea, but he reminded Flynn that Flynn already stated, under oath, that none of the things DOJ raised yesterday change that he was guilty of lying to the FBI.


Exhibits

August 16, 2016: Opening Executive Communication for Flynn investigation (Exhibit 2)

The FBI opened a full investigation into Mike Flynn to figure out whether he was wittingly or unwittingly being run by the FBI that might constitute a federal crime or pose a threat to national security. It listed FARA and 18 USC 951 as the crimes under investigation. This document was created as part of this prosecution. Flynn asked for this last year.

January 4, 2017: Draft Closing Communication closing investigation into Mike Flynn (Exhibit 1)

This reviews the investigative steps taken against Flynn, noting that the investigative team did not presume Flynn was an Agent of a Foreign Power, which limited the investigative steps significantly. Based on those steps, however, the FBI was closing the investigation. Timothy Shea does not contest that this was never finalized.

January 4, 2017: Emails between Jim Baker, Lisa Page, and Peter Strzok about the Logan Act (Exhibit 8)

These emails show FBI was discussing the Logan Act in the wake of discovering the Flynn interview. They don’t show that that was the only thing they discussed (and the public record makes clear it was not the only thing discussed). This discussion is reflected in 302s generated by the Mueller investigation. These documents would be included in the requests Flynn made last year.

January 4 through February 10, 2017: Texts involving Peter Strzok (Exhibit 7)

These texts include ones between Peter Strzok and the agents in charge of the Flynn investigation, asking them not to close it out. It includes texts between Strzok and Page about whether or not the investigation was closed out, and showing that Page had edited the 302. The Page-Strzok texts, by definition, were reviewed by DOJ IG. But the ones pertaining to the edit were actually less interesting than some previously released ones. Other texts were likely reviewed as part of the three investigations into the circumstances of Flynn’s interview. Flynn asked for these last year.

January 21 through 23, 2017: Emails involving Peter Strzok, Lisa Page, and others (Exhibit 9)

These emails capture the discussions about what to do about Flynn in the days before his interview, including brainstorming how they would respond to questions he might ask and whether they’d give him a False Statements admonishment. These emails were likely reviewed as part of the multiple reviews of the circumstances of Flynn’s interview. Flynn asked for these last year.

January 24, 2017: Bill Priestap notes on goals for the Mike Flynn interview (Exhibit 10)

These notes reflect a discussion about what investigative goals FBI had for the Flynn interview. Given that they seem to record Andrew McCabe’s statements, they were almost certainly reviewed in the multiple reviews of this meeting. Flynn asked for these last year, alleging they recorded Andrew McCabe saying “First we fuck Flynn, then we fuck Trump.”

January 24, 2017: A version of notes Andy McCabe took when he called up Flynn about an interview (Exhibit 11)

This was first shared with Judge Sullivan in unredacted form when he took Flynn’s plea in December 2018. This version is, in some respects, more classified than a version released last May. For example, last May DOJ revealed that McCabe agreed with Flynn that leaks were a problem.

Today’s version redacts that line as classified.

Obviously, Flynn has had this document since before he pled guilty the second time, and swore under oath that it did not change his guilty plea.

January 24, 2017: FBI Agents’ notes (Exhibit 12)

These were made public in Flynn exhibits in October (actual Pientka, actual Strzok). Sullivan conducted extensive analysis of these notes last year, demonstrating that, contrary to Sidney Powell’s claims, the false statements recorded in every version of Flynn’s 302s are consistent with the notes.

February 14, 2017: 302 from January 24, 2017 interview with Mike Flynn (Exhibit 6)

Flynn has had this since before he pled guilty. It is actually a more redacted version than the most recent one released in the BuzzFeed FOIA. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making.

March 2, 2017: House Intelligence Committee interview with Jim Comey (Exhibit 5)

This interview provides one version of how Comey decided to send FBI Agents to interview Flynn. It also includes a line — which has been egregiously misrepresented — describing how that FBI Agents thought Flynn was a credible liar. The Comey interview came before some other investigative steps would have made even more clear that Flynn had knowingly lied to the FBI. While this transcript had never been made public, the substance of it has long been public, including in the House Intelligence Committee Report on Russia.

July 17, 2017: 302 of FBI interview with Mary McCord (Exhibit 3)

This describes the FBI going through her notes with Mary McCord, who was Acting National Security Division head during the transition and beginning of the Trump Administration. The interview includes damning information making it clear that the Trump Administration tried to quash this investigation. It makes clear that the FBI interviewed Flynn to assess whether he was working for Russia as a clandestine Foreign Agent. In fact, Flynn asked for it because of what it said about him being a Foreign Agent, and on that basis, Sullivan judged it to be irrelevant to his plea for False Statements, and judged that a summary Flynn received before he pled guilty a second time was sufficient. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making.

July 19, 2017: 302 of FBI interview with Peter Strzok (Exhibit 13)

The FBI interviewed Strzok to understand how DOJ and FBI dealt with the Flynn prosecution. It was originally shared with Judge Sullivan in unredacted form at the 2018 sentencing and has been released in this form since then, twice. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making. Flynn had it before pleading guilty the second time, and swore under oath it did not affect his guilty plea.

August 15: 302 for FBI interview with Sally Yates (Exhibit 4)

This interview describes Yates’ understanding of how the investigation into Flynn started. While she describes the conflict between FBI and DOJ, she also makes it clear that she never questioned the seriousness of what Flynn had done. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making. Flynn got a summary of this before he pled guilty the second time, a summary that Sullivan said was sufficient. But he asked for it again last year.

To Justify Dismissing Mike Flynn’s Prosecution, Timothy Shea Claims Information DOJ Has Always Had Is “New”

As noted earlier, the government has officially asked Judge Emmet Sullivan to drop the prosecution against Mike Flynn. Sullivan is not required to do so, particularly not after Flynn pled guilty twice and given that Sullivan has fully briefed sentencing memoranda before him.

This post will try to lay out the shoddiness of the argument they make to support that move. In a follow-up, I will show how Judge Sullivan already dismissed much of this argument. Finally, I will show that some of what DOJ relies on to claim they’ve discovered “new” information is actually utterly damning to the Trump White House, making it fairly clear Trump endorsed what Flynn had done.

As I always say, it is a fool’s errand to predict what Sullivan might do. But this argument is not one that I imagine will impress Sullivan, particularly given the past events in this prosecution.

Note that just Acting US Attorney Timothy Shea signed this filing, which may create a similar kind of dynamic at the DC US Attorney’s Office regarding this action as Barr’s interference in the Roger Stone sentencing did. Barr transparently removed the Senate approved US Attorney for DC, installed his flunky, and then had his flunky renege on statements that DOJ (even DOJ under Barr) had made in the past. It is a breathtaking abuse of power, and it’s likely that Sullivan will regard it as such.

Shea makes three arguments:

  • DOJ discovered new material that changed their understanding of the investigation
  • That material has led them to believe (they claim) that Flynn’s lies weren’t material to any investigation
  • Therefore they can’t prove to a non-existent jury that the lies were material, which they don’t have to do because Flynn has twice pled guilty, which Shea glosses over ineffectively

Shea claims there’s new material but points to none

As noted, Shea repeatedly justifies this move by claiming there is “newly discovered” material.

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.” Ex. 1 at 4, FBI FD-1057 “Closing Communication” Jan. 4, 2017 (emphases added)

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

[snip]

Based on an extensive review of this investigation, including newly discovered and disclosed information attached to the defendant’s supplemental pleadings, see ECF Nos. 181, 188-190, the Government has concluded that continued prosecution of Mr. Flynn would not serve the interests of justice.

Except Shea never actually describes what is “new.”

He cites a bunch of exhibits, many of which have already been entered into this case. Zero of the documents he cites were new to DOJ, at all. Indeed, prosecutors dealt with almost all of the documents in their response to Sidney Powell’s Brady demand, at a time when Bill Barr was already Attorney General, so even Judge Sullivan already knew of them, and Bill Barr’s DOJ already accounted for most of them in this prosecution.

Moreover, Shea simply cites to them as exhibits. He doesn’t describe how DOJ purportedly discovered them. He doesn’t claim that Rod Rosenstein, who authorized this prosecution, didn’t know of the documents when he authorized this prosecution. He doesn’t explain why previously classified documents — which were always accessible to prosecutors and Rosenstein — count as new.

While he cites to prosecutors’ past mention of US Attorney Jeffrey Jensen’s review of the case, which is where these documents that were always known came to take on new relevance, he doesn’t mention it specifically, and he sure as hell doesn’t explain how it came to be that Jensen was appointed to review the case.

All of which is to say that the entire premise of this filing — that there is information that is new to DOJ (as opposed to newly in Flynn’s possession) — has no basis in fact and is demonstrably false with respect to a number of things Shea points to.

Shea misrepresents the status of the investigation to claim Flynn’s lies were not material to it

Shea then claims these new documents which are not new newly convinced DOJ that Flynn’s lies were not material to any investigation.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

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

Even ignoring how Shea pretends the 2020 Trump DOJ needs to be “persuaded” by the 2017 Trump DOJ, the argument here involves misrepresenting the record.

On August 16, 2016, the FBI opened an investigation into Flynn. The goal of that investigation was to figure out whether Flynn was being controlled by Russia; 18 USC 951 was one of the crimes for which Flynn was being investigated.

The goal of the investigation is to determine whether the captioned subject, associated with the Trump Team, is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national securit y and/or possibly a violation of the Foreign Agents Registration Act, 18 U.S.C section 951 et seq, or other related statutes.

Nothing about the predication of the investigation into Flynn was limited to election tampering. It was an investigation into whether Flynn was acting on Russia’s behalf, period. On January 4, 2017, FBI drafted a memo closing the Crossfire Hurricane investigation into Flynn. That they did so is proof they didn’t have it in for Flynn. They had investigated the reasons they had suspected him, not corroborated it, and decided to close the investigation.

But on those same days, in response to a request from Obama for insight into why the Russians hadn’t responded more aggressively to the sanctions, FBI discovered the Flynn call with Sergey Kislyak. When they discovered that new information, Peter Strzok asked the case agent to keep the case open, for now, until they could figure out what to do.

There was a lot of debate between FBI and DOJ over the following weeks about what to do, whether to inform Trump or not. Once Mike Pence made representations about what Flynn had done, however, it raised the stakes, because it meant that Flynn had lied internally, which also meant that Flynn was more of a counterintelligence concern. Ultimately, Comey said that because the FBI already had an investigation open, DOJ could not intervene.

And then the DNI and the Director of Central Intelligence Agency, so Mr. Clapper and Mr. Brennan, both approached me on the 19th, the last evening of the Obama administration, and asked me whether I was going to tell them about what I knew about Mr. Flynn before they took office, and I said that I was not, given our investigative equities, and the conversation ended there.

I’m perfectly sympathetic to a debate about Jim Comey being an asshole, but it is in fact the case that there was an ongoing investigation, and it is also in fact the case that even when Sally Yates informed Don McGahn about it, she herself refused to tell him about the status of the ongoing investigation.

In a description of the debrief after the interview, Bill Priestap made clear that they did this interview to find out whether Flynn was acting as an agent for Russia.

The FBI’s provided rationale for doing the interview was that the existence of the investigation had already leaked, so Flynn was already aware that the information was being discussed publicly and there was no element of surprise. Priestap told the group the goal of the interview was whether to determine whether or not Flynn was in a clandestine relationship with the Russians.

That’s what Comey said, too.

MR. COMEY: To find out whether there was something we were missing about his relationship with the Russians and whether he would — because we had this disconnect publicly between what the Vice President was saying and what we knew. And so before we closed an investigation of Flynn, I wanted them to sit before him and say what is the deal?

So to review: the investigation was started to determine whether Flynn was in a clandestine relationship with Russia, and they conducted the interview to find out whether he was in a clandestine relationship with Russia. The interview was solidly within the scope of the predicated investigation.

And once that interview had happened, you had someone who was being investigated to learn whether he had clandestine ties with Russia who had lied about having called up Russia several times to undermine US policy. Which is pretty solid evidence in an 18 USC 951 investigation.

Now, Shea concedes that that investigation was still open. He concedes that the closing documents never got filed. Which is, really, all that should matter.

But he says that because the FBI already knew what Flynn had said, they didn’t have a purpose to interview him.

He does that, first of all, by arguing that when the FBI discovers you’ve called up the foreign country that just attacked us and told them not to worry about it, and then the Vice President makes it clear you’ve lied about that, did not justify extending an investigation into whether Flynn was secretly working for Russia.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime. This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one, see Ex. 7 at 1-2, as well as its ongoing inability to espouse a consistent justification for its probe in conversations with DOJ leadership, See Ex. 3 at 5. In fact, Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation. Id.

In short, Mr. Flynn’s calls with the Russian ambassador—the only new information to arise since the FBI’s decision to close out his investigation—did not constitute an articulable factual basis to open any counterintelligence investigation or criminal investigation. Mr. Strzok and Ms. Page apparently celebrated the “serendipitous[]” and “amazing” fact of the FBI’s delay in formally closing out the original counterintelligence investigation. Ex. 7 at 1. Having the ability to bootstrap the calls with Mr. Kislyak onto the existing authorization obviated the need for the “7th Floor” of the FBI to predicate further investigative efforts. In doing so, the FBI sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens.

Even though Shea has not contested the basis for the investigation in the first place, which was explicitly an 18 USC 951 investigation, he basically argues it is improper for the FBI to investigate whether people might be secretly working with Russia. At one point, notably, he pretends that an investigation that explicitly considered a 951 prosecution from the start is just about FARA.

Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3.

Having done that, he then argues that meant there was no basis for the interview.

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

Under these circumstances, the Government cannot explain, much less prove to a jury beyond a reasonable doubt, how false statements are “material” to an investigation that—as explained above—seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.

Consider: Flynn could have dealt with this interview in many different ways. He could have admitted his statements, which would have made it clear he wasn’t hiding the calls (though he had taken other steps to hide them). He could have refused the interview. Or, he could have lied, to cover up what he had one.

Just one of those actions would make it more likely he was secretly working for Russia. And that’s what he did. It’s hard to understand how anything could be more material to an ongoing counterintelligence investigation (and, indeed, FBI took the same approach with both Carter Page and George Papadopoulos when their investigations became public).

Shea pretends Flynn’s guilty pleas don’t count

Note how Shea argues that DOJ has decided to drop this prosecution as if they’d need to convince a jury. Bizarrely, when Shea admits that Flynn has already pled guilty, he neglects to mention the second time he did so.

On November 30, 2017, the Special Counsel’s Office filed a criminal information against Mr. Flynn charging him with a single count of making false statements in violation of 18 U.S.C. § 1001(a)(2). ECF No. 1. Mr. Flynn pleaded guilty to that offense, see ECF Nos. 3-4, but moved to withdraw that guilty plea on January 14, 2020, ECF Nos. 151, 154, 160. On January 29, 2020, Mr. Flynn also filed a “Motion to Dismiss Case for Egregious Government Misconduct and in the Interest of Justice,” ECF No. 162, and supplemented that motion on April 24 and 30, 2020 based on additional disclosures, see ECF Nos. 181, 188-190. Both Mr. Flynn’s motion to withdraw his guilty plea and motion to dismiss the case remain pending before the Court.3

He simply ignores that Flynn pled guilty, again, before Emmet Sullivan, on December 18, 2018.

Shea excuses those pleas — the provenance of the Judge in this case, not DOJ — by saying poor Mike Flynn didn’t know about all this newly discovered information.

Mr. Flynn previously pleaded guilty to making false statements. See Def’s Plea Agreement, ECF Nos. 3-4. In the Government’s assessment, however, he did so without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him. Mr. Flynn stipulated to the essential element of materiality without cause to dispute it insofar as it concerned not his course of conduct but rather that of the agency investigating him, and insofar as it has been further illuminated by new information in discovery.

Here’s why Shea’s silence about Flynn’s December 18, 2018 plea is so important, though. First of all, Flynn actually knew virtually everything listed in this filing by his second guilty plea, which both the prosecution and Sullivan himself have pointed out. More importantly, when Flynn asked for copies of all the materials listed here as Brady materials (which is itself proof he knew they existed), Sullivan said he wasn’t entitled to them.

Nowhere does Shea deal with the reality of this case, that Flynn has already pled guilty twice, once knowing most of what is laid out in this filing.

So to sum up:

  • Shea says there’s new information, except all of this information was known to DOJ when they prosecuted Flynn. He’s the same DOJ, under the same Administration, and everyone involved with the case had access to this information.
  • Shea says whether someone covers up what he did is immaterial to an investigation of whether they’re working clandestinely for another country.
  • Then Shea claims Mike Flynn didn’t account for all this when he pled guilty the last two times, when in fact the record shows he did know most of it before he pled the second time, and even so, Judge Sullivan judged that he wasn’t entitled to it.

Ultimately, by making a claim there’s new information when DOJ had the information all the time but Mike Flynn did not, Shea admits — seemingly without awareness of doing so — that DOJ has become the defense attorney for a sworn felon.

As I keep saying, I would hesitate to predict how Sullivan will respond to this. But I would be surprised if he didn’t recognize all the giant holes in Shea’s argument.

The Four Ways Trump Can Ensure Mike Flynn Avoids Accountability for His Lies

In this post, I suggested that Billy Barr and Sidney Powell have worked together to pursue about four different ways to ensure that Mike Flynn does no prison time (though, it’s worth remembering, that Robert Mueller recommended probation for Flynn, and it’s only Flynn’s own efforts to undermine Mueller’s authority that have exposed him to real prison time). I also said that most people engaged in the debate over Flynn’s status show little to no familiarity with the status of his case. I’d like to lay out that status here.

Flynn’s sworn statements

First, it’s important to know the substance of the various statements Mike Flynn has made and how they conflict, to understand how risky his current gambit would be if not for the personal efforts of the Attorney General. All these statements are at issue:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.” Flynn claims he forgot about the substance of his conversations with the Russian Ambassador, rather than lied about them.

The substance of these sworn statements are important for several reasons. First, it is virtually impossible to look at these four sworn statements and conclude that he did not lie in at least one of them. In the course of challenging his guilty pleas, he has made statements that may amount to perjury, perjury to judges rather than false statements to Peter Strzok.

In addition, these statements severely constrain both of Flynn’s current legal attempts to renege on his guilty pleas, because he has already sworn that the things he now is claiming were not true.

They also change the landscape of possibilities if one of them — a motion to withdraw his plea — were successful, because there are a number of witnesses who have already testified that his statements were false for some of the statements that he twice pled were false. For example, several of Trump’s aides told Mueller they recognized Flynn lied in his FBI interview. Others told Mueller he was lying to them. KT McFarland and Jared Kushner testified about the UN ploy. And a number of people changed their testimony after Flynn pled, making it more clear that they were all adhering to a cover story. In short, while many people believe that if DOJ had to prosecute Flynn for his original false statements, it would pit him (with little credibility) against Strzok (with severely damaged credibility), that doesn’t account for the other witnesses against him who, if they altered their testimony, would put themselves at risk for false statements charges.

The four efforts to reverse Flynn’s guilty pleas

By my read, there are four efforts underway to reverse Flynn’s guilty pleas. Few people realize that Flynn has two separate legal challenges going on.

Motion to withdraw his guilty plea

The first is a motion that argues that Covington & Burling, the white shoe law firm that (at least per public records) gave Flynn 30 months of representation they never got paid for, provided inadequate legal representation in at least three matters:

  • Covington wrote the FARA filing that posed the biggest legal risk for Flynn when he pled guilty in 2017, and so had an incentive to advise him to plead guilty so as to avoid any exposure themselves for presenting a deceitful filing to DOJ.
  • Covington did not provide Flynn adequate notice of the conflict this presented.
  • Covington also withheld information from Flynn — such as that the FBI Agents who interviewed him thought he was a convincing liar — that he now claims would have led him not to plead guilty had he known it.

Even in the public record, there’s evidence these claims are not true. For example, notes taken by Covington that Flynn himself released record him telling them things that made it into the FARA filing but which even his grand jury testimony he said were not true. In other words, both materials Flynn has himself released and his own sworn statement undermine this claim.

Furthermore, Flynn’s own filings show other holes in Flynn’s argument, such as at least one additional warning from Covington about any conflict, along with evidence Covington found an unconflicted attorney and suggested Flynn consult with that lawyer about their representation.

But since Flynn filed this motion, Covington has turned over 500 additional pages of evidence to prove their competence, as well as 100 pages of sworn declarations. Sidney Powell has made aggressive claims that damage Covington’s reputation, they appear to have gotten paid nothing for representing Flynn, and Judge Emmet Sullivan showed some interest in putting everyone under oath to fight this out. So it’s possible that this will lead to a spectacular hearing where very reputable Republican lawyers will have an opportunity to disclose how much Flynn lied to them.

That said, Sullivan seems to be getting justifiably cranky with Covington because they keep finding documents they didn’t turn over to Flynn last year. He ordered the firm to file a notice of compliance indicating they had researched all their files to make sure they had gotten everything, which is due at noon today.

If Flynn succeeded in withdrawing his guilty plea without incurring perjury charges for his two plea allocutions and his grand jury testimony, he still could be prosecuted. While it’s unlikely (unless this whole effort extends into a Joe Biden administration), that prosecution could include a Foreign Agent 951 claim on top of the FARA claim and it could include Flynn’s son.

On May 8, the government will provide a status update or proposed briefing schedule on Motion to Withdraw. Most likely, this will be an anodyne filing. But it’s possible we’ll get a summary of what Covington included in the 600 pages they turned over, which may be very damaging to Flynn’s case.

Motion to dismiss for prosecutorial misconduct

In addition to the motion to withdraw, Flynn also is asking Judge Sullivan to dismiss his case for prosecutorial misconduct. Effectively, Flynn is arguing that mean FBI agents had it in for Mike Flynn and so ambushed the 30 year intelligence veteran on January 24, 2017, and tricked him into lying so they could either get him fired or prosecute him.

Because Powell asked Sullivan to dismiss Flynn’s case in a motion that purported to be a Brady challenge last fall, Judge Sullivan has already written a meticulous 92-page opinion denying these arguments, explicitly distinguishing what happened to Flynn from what happened to Ted Stevens. Powell even had to and did say, in this motion to dismiss, something akin to, “no, even though I already asked you to dismiss this case, that wasn’t my motion, this is.” Flynn’s original motion submitted in January, however, added nothing new. Rather, it asked Sullivan to dismiss the case against Flynn because FBI’s FISA applications against Carter Page were problematic.

Since then, Flynn has used the serial receipt of documents turned over in conjunction with Jeffrey Jensen’s review of his case to claim new evidence of misconduct. Those documents include proof that, contrary to Flynn’s claims, the promise that by pleading guilty Flynn would spare his son criminal investigation was not a promise. It includes notes on how the FBI prepared for the interview with Flynn, notes that — because they reflect actions not taken — are probably not directly relevant to his case anyway. Nevertheless, those notes are what Flynn’s backers point to to claim that the FBI thought it would be obvious that someone who had secretly called up the country that just attacked America and convinced them not to worry about the punishment for the attack could not serve as National Security Advisor. Finally, those documents include proof that, after considering whether some things Flynn had done in the past meant he could be a Russian threat, the FBI concluded they did not, and only after that discovered the call transcripts with Sergey Kislyak showing something far more concerning. Powell released these filings with no substantive argument about how they prove her case, using them instead to fire up Flynn’s backers who show little understanding of the case.

It’s always a fool’s errand to predict how Judge Sullivan will feel about such things. But this last filing actually dramatically undercuts a claim that Powell has made from the start, that the effort to “get” her client arose out of personal animus, and continued in unrelenting fashion until the FBI trapped Flynn in a perjury trap. If the FBI were motived by animus, as alleged, then they would never have moved to close the case against him. The only reason they did not is because they found evidence he had secretly called up the country that just attacked us and told them not to worry about the punishment. That is, the FBI reviewed some allegations against Flynn, found them wanting (which is proof that they were basing their decisions on the evidence, not any negative views about Flynn), and only after that did he give them real reason to be concerned, something totally unrelated to many of the allegations Powell based her original complaints on, that they continued the prosecution. (Flynn’s backers often forget that the FARA investigation had already started by this point, which was an urgent concern of its own right.)

In any case, those serial releases had been serving to keep the frothy right chasing one after another shiny object. But last week Judge Sullivan called a halt to them, ordering Powell to hold all her new exhibits until the government is done turning them over.

On May 11, the government will file a response to whatever Flynn’s motion to dismiss consists of by that time, with Flynn’s reply due May 18.

The Jeffrey Jensen review of Flynn’s prosecution

Approximately the week before Flynn filed his motion to dismiss, Barr appointed the St. Louis US Attorney, Jeffrey Jensen, to review Flynn’s prosecution.

It’s hard to overstate how abusive this was, on Barr’s part. When Barr did this, Judge Sullivan had already ruled there was no reason to dismiss the prosecution, and ruled that the items now being produced were not discoverable under Brady. What the review has done, thus far, has been to provide Flynn with documents that someone — presumably Derek Harvey — had reviewed, so he can obtain stuff even Judge Sullivan ruled he was never entitled to receive.

Moreover, Barr did this even though he had already appointed John Durham to review what has come to incorporate Flynn’s prosecution under a criminal standard. Durham could obtain all this evidence himself as part of his investigation, but he can only do something with it if it is evidence of a crime. Effectively, Barr has asked two different prosecutors to review this prosecution, the latter effort of which came after a judge had already ruled against it.

That said, given the prospect that litigation over Covington’s supposed incompetence may be highly damning to Flynn’s reputation, the Jensen review provides Barr with another option. He can use it as an excuse to order prosecutors to withdraw their opposition to Flynn’s motion to dismiss. It’s unclear whether Jensen has found anything to merit that yet, and Jensen appears to be engaging in analysis that might undercut where Barr wants to go with this (though given how closely Deputy Attorney General Jeffrey Rosen’s office is involved in this, I doubt that will happen). That said, Barr’s treatment of the Mueller Report proves that he has no compunction about claiming that a prosecutor’s conclusions say one thing when in fact they say something very different. And so at any moment, Barr may order prosecutors to effectively wipe away the prosecution of General Flynn.

One tea leaf, at least thus far, is that Brandon Van Grack has not withdrawn from Flynn’s case. Had he been referred for misconduct, you would expect that to show up in the docket.

The inevitable pardon

These efforts — Flynn’s effort to withdraw his guilty plea, his effort to get his prosecution thrown out for misconduct, and DOJ’s effort to find some basis to dismiss it on their own — are all ways of eliminating the Flynn prosecution in ways that would help Trump’s claim of victimization. They would provide a way for Trump to pay back Flynn’s silence about his own role in the sanctions call with Kislyak without having to issue a pardon to do so.

But those efforts can only do so much by themselves, particularly given the number of conflicting sworn statements Flynn has made.

Assuming that Barr would eventually move to withdraw DOJ’s opposition to Flynn’s motion to dismiss, it might have the effect of mooting the motion to withdraw Flynn’s guilty plea as well, effectively wiping out the existing charges against Flynn. But only if Sullivan were to accept the dismissal of the two pleas; it would be at his discretion.

And Judge Sullivan could, on his own, deem that Flynn has lied to him (and Judge Rudolph Contreras) under oath. There is literally no way to reconcile the conflicts in Flynn’s sworn statements; some of them must be false. And Sullivan has the authority to — and the temperament to — appoint a special prosecutor to investigate and prosecute Flynn for perjury. That’s effectively what Sullivan did in response to the misconduct against Ted Stevens.

As noted above: it’s a fool’s errand to try to predict how Judge Sullivan will respond to stuff like this. It’s unclear whether he will be impressed with the new evidence Powell is floating. But it is possible he remains as fed up as he clearly was in December, and as a judge he does have means of doing something about it.

But as President, Trump always has the power of pardon, and there is zero reason to believe he won’t be using it aggressively on November 4, regardless of the outcome. Indeed, if Trump were to pardon Flynn for perjuring himself before several judges, it would be the exact equivalent of what he did for Joe Arpaio, saving him from being subject to the authority of a judge. Trump can do that at any time — he just presumably wants to avoid doing so until after the election.

Ultimately, Trump has four possible ways to get Flynn out of his guilty verdict. And it is virtually guaranteed that one of them will work.

Update: Corrected how long Covington worked for Flynn.

Update: bmaz has convinced me that even if Barr forces DOJ to end its contest to the motion to dismiss, Sullivan would still have discretion to reject any motion to dismiss; I’ve updated the post accordingly.

Update: Corrected that it was Flynn, not the government, that submitted the exhibit showing that Covington gave Flynn more warning on conflict than he claims in his own declaration.

Update: Here’s Covington’s notice of compliance with Sullivan’s order to make sure they’ve handed everything over. Unsurprisingly, Sidney Powell is asking for stuff that goes well beyond the client file, perhaps as a stall.

The Frothy Right Wingers Claiming “Perjury Trap” Are Accusing General Flynn of Perjury

The frothy right is in full frenzy claiming that poor General Flynn, with his thirty years of intelligence experience, got naively caught in a perjury trap by FBI agents he regarded as his allies.

There’s a problem with that. Every single person claiming that Flynn was coerced to lie by the FBI — which necessarily concedes he did lie — is also accusing Flynn of perjuring himself in a recent sworn statement before Judge Emmet Sullivan. If what they say is true, then Flynn committed a crime in January, one for which the statute of limitations will extend until 2025.

Take this concession from right wing propagandist Jim Hanson, where he states that, “it seems clear he did lie.”

Hanson appears to excuse these lies because he doesn’t much care that, in the wake of an attack by a hostile foreign country, Flynn called up that country and told them it was no big deal, all while taking steps to hide that he had done so. That is, Hanson seems to excuse the lie because (in his mind, apparently) it is admirable for a man to work secretly with a country that has attacked America to help them avoid any repercussions for having done so.

Remember: Flynn told the FBI he thought an appropriate punishment for tampering with our elections would be a single Russian diplomat being sent home.

But once you’ve conceded that Flynn lied, you are accusing the General of perjury in a sworn filing submitted in January 29 which says,

On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI.

I am innocent of this crime, and I request to withdraw my plea.

Flynn’s declaration is full of other details that are provably false — such as that he was extremely busy and only had a limited amount of time to give the FBI Agents who interviewed him. Flynn talked about hotels, ISIS, and Trump’s knack for interior decorating before turning to that interview; Peter Strzok even wondered how he had so much time to shoot the shit.

So when Flynn claims, in the declaration, to still not remember if he discussed sanctions with Kislyak or the UN vote with Israel, it’s not only not credible, but also refuted by other witness testimony, including KT McFarland’s own 302s and those of several top Trump aides, who told Mueller they recognized in real time that Flynn had lied.

Flynn technically maintains he did not lie (though that means his sworn plea allocutions were perjury, and he has never reneged on his sworn grand jury testimony admitting he knew while working for Ekim Alptekin that he was actually working for the Turkish government).

But if, like Hanson, you concede he did lie, if you believe the FBI did succeed in capturing Flynn in a “perjury” trap (actually, a false statements trap), then you, by definition, believe that his sworn statement from January is a lie — perjury, and perjury not coerced by any evil FBI Agents but instead coaxed by his pretty Fox News lawyer Sidney Powell.

It is a testament to how unmoored from any aspiration to truth that this entire campaign to excuse Mike Flynn’s coming pardon is that key propagandists participating in it don’t bother to familiarize themselves with the facts or the precarious net of sworn claims Flynn has made. There appears no concern, on the part of the propagandists, to ensure their stated views fit logically with Flynn’s sworn statements, to say nothing of adhering to the known facts or reality.

Ultimately, though, this debate is not about truth, because no one contests that Flynn got caught telling the hostile country that had just attacked us in 2016 not to worry about any retaliation, and Republicans are simply trying to find a way to minimize the political fallout in ensuring he pays no price for having done so. Ultimately, Billy Barr has rolled out four possible ways he can guarantee Flynn won’t do prison time, with varying degrees of political cost to Trump and blithely incurred damage for rule of law, and it is virtually assured that one of those ways will work.

But the willingness of those wailing “perjury trap” to concede that Flynn did lie introduces an interesting dynamic into these issues of power. That’s because Judge Emmet Sullivan, as recently as December, and possibly as recently as last week, showed some impatience with being dicked around like this (though he’s also increasingly impatient with Covington & Burling’s failures to provide Flynn all their records). And Sullivan has the ability to find that Flynn has lied to him, Emmet Sullivan, repeatedly, including in his declaration from January. Sullivan has the means to do so even if Barr orders Flynn’s prosecutors to withdraw their contest of his motion to withdraw.

It would raise the cost of a pardon if Trump had to do it after a judge were to find that Flynn continued to lie, in 2017 to Judge Contreras, in 2018 to Judge Sullivan, and again in 2020 to Judge Sullivan, all without the coercion of some baddy FBI Agents purportedly springing a trap on him. And yet that’s precisely the scenario that the perjury trap wailers make more likely.

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

Mr. Durham has not questioned Ms. McFarland.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming.

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

She also claimed the reports from Jensen included,

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

McFarland’s post-Flynn plea memories grow significantly clearer

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

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

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

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

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

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

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

[redacted]

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

[redactions and snip]

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

Mike Flynn Commits to Waiving Privilege

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

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

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

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

But the stipulation specifically prohibits that.

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

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

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

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

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

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

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

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

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

This latest assault on judicial independence started two weeks ago.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

January 6: Trump nominates Liu to Treasury

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

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

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

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

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

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

February 5: Senate acquits Trump

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

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

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

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

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

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

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

June 2: Timothy Shea’s interim appointment expires