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DOJ Adopts a Third Way of Dating Undated Notes

As I noted in this post, the discovery shared with Mike Flynn is rife with inconsistencies. While I think the most egregious decision pertains to the decision to hide William Barnett’s descriptions of what must be descriptions of Brandon Van Grack agreeing with Barnett on the least damning interpretations of Flynn’s lies, the alteration of Peter Strzok’s notes to smear Joe Biden may have the most immediate impact.

That said, I want to note that in the last batch of documents released, DOJ has adopted yet another way to add dates to undated notes.

On notes by one OAG lawyer, DOJ includes the date of a meeting, March 6, 2017, in the redaction.

But DOJ provides no date for another set of notes included with the batch. The date on this note is important because the view of Flynn’s involvement in “collusion” evolved as call records came back to reveal that Flynn had coordinated with Mar-a-Lago.

To sum up then, DOJ has used at least two and probably 3 different methods to write its own date on handwritten notes. Adding post-it notes (in the case of Strzok’s notes), apparently writing the date on the notes itself (in the case of McCabe’s notes), and integrating it into the redaction.

That makes the use of post-it notes on Strzok’s notes all the more problematic.

DOJ’s NSL Report Proves that William Barnett Misrepresented the Evidence Implicating Mike Flynn

Later today, DOJ will stand up before Emmet Sullivan and argue that Peter Strzok — whom, they’ll claim, had it in for Mike Flynn even though they’ve submitted evidence that Strzok protected Flynn in August 2016 and December 2016 and February 2017 and May 2017 — obtained National Security Letters targeting Mike Flynn without proper predicate.

In fact, their “evidence” to support that claim will show that in his interview with Jeffrey Jensen, William Barnett misrepresented the evidence when he claimed it was “astro projection” that Mike Flynn lied to hide Trump’s involvement in Flynn’s effort to blow up sanctions on Russia. Indeed, their evidence will actually affirmatively provide more reason to think that this entire effort is an attempt to protect Flynn because he protected the President from being charged in a quid pro quo, rewarding Russia with sanctions relief in exchange for help getting elected.

What DOJ wants to show is that, in December 2016, Barnett and others on the Flynn investigation wanted to get NSLs targeting Flynn, but Strzok stopped them, in part because the investigation into Flynn — but not the Crossfire Hurricane investigation into the Trump campaign as a whole — did not treat Flynn as an Agent of a Foreign Power. [I’ll fill this post in with links once I post it.] But then, in February and March — after DOJ said that they didn’t think Flynn was a Foreign Agent (but also said they needed to check to make sure!!!) — Strzok approved NSLs targeting Flynn. DOJ plans to claim that Strzok had no other reason to do this except to take Trump down.

The claim is amazing, in its own right, because even making the claim suggests that FBI had reason to know at that point that an investigation into Flynn which FBI believed to involve only Flynn might bring down Trump. That is, DOJ is claiming that FBI knew precisely what they only discovered by obtaining these NSLs.

FBI didn’t know at the time — but the NSLs would reveal — that in fact, the investigation might take down Trump.

And one reason they didn’t know that is because Flynn told Peter Strzok and Joe Pientka these three lies when they interviewed him on January 24, 2017:

FLYNN noted he was not aware of the then-upcoming actions [the sanctions] as he did not have access to television news in the Dominican Republic and his government Blackberry was not working.

[snip]

The U.S. Government’s response was a total surprise to FLYNN.

[snip]

FLYNN reflected and stated that he did not think he would have had a conversation with KISLYAK about the matter, as he did not know the expulsions were coming.

Strzok and Pientka knew — as Flynn offered up they must — what he said to Kislyak in a series of calls to Sergey Kislyak during the Transition, because they had transcripts of those calls. But what Strzok and Pietka did not know, and what Flynn’s lies were designed to hide, was that Flynn had consulted with Mar-a-Lago before returning the call with Kislyak, and so not only knew about the sanctions, but had learned about them from the people staffing the President-elect, and in fact Flynn raised the sanctions he claimed not to know about himself.

That lie — that Flynn did not know about the sanctions when he called Kislyak — served (for a time) to hide his consultations with Mar-a-Lago. That lie served to protect the President.

That’s a lie that Barnett professed ignorance of in his interview with Jeffrey Jensen.

And it’s a lie that Strzok discovered was a lie with a series of NSLs, as laid out in this summary.

The day after Flynn’s interview, FBI told DOJ that they didn’t think Flynn was a Russian agent, but they needed to confirm that. (DOJ documents would record the conclusion, without recording FBI’s determination that they needed to verify it.)

On February 2, 2017 — a week after FBI told DOJ that they didn’t think Mike Flynn was an Agent of Russia but needed to check — Strzok obtained an NSL for subscriber and toll billing records (meaning call records) on one Flynn phone line [Phone 1] from July 1, 2015 to the present. Probably, that’s the phone FBI learned he used — instead of his government BlackBerry, which Flynn claimed wasn’t working in Dominican Republic — to call Kislyak.

On February 7, 2017, FBI submitted 2 more NSLs:

  • Transactional records for a Mike Flynn email account from July 15, 2015 to the present (this may have reflected emails implicated in Flynn’s trip to Russia in December 2015)
  • Subscriber records (but not transactional records) for a Mike Flynn phone [Phone 2] from August 1, 2016 to the present (given the date, which coincides when GSA normally starts providing materials to candidates and their aides in support of a Presidential Transition, this is likely the government BlackBerry that Flynn claimed wasn’t working in Dominican Republic)

On February 23, 2017, FBI submitted 3 more NSLs:

  • Toll records for 3 different phone numbers for the period from January 1, 2016 to the present [Phone 3, Phone 4, possible Phone 5]
  • An email address, from inception to the present

On March 7, 2017, FBI submitted a last NSL, for subscriber and transactional information for a Mike Flynn phone [possibly Phone 2] between December 21, 2016 and January 15, 2017. Given the abbreviated dates (narrowly scoped to the days when Flynn was secretly contacting Kislyak), this may be Flynn’s government BlackBerry. Or maybe it’s a phone he used to contact Trump directly. Whatever it is, it can’t be Phone 1, 3, or 4, because DOJ already had that span of call records. And whatever it is, the narrowed scope suggests some recognition that the phone was particularly sensitive, as a phone involving Trump or the Transition would be.

On January 25, 2017, when the FBI said they didn’t think Mike Flynn was a Foreign Agent but needed to check that, they would have had no idea why Flynn lied when he claimed not to know about sanctions. More importantly, they would have had no idea that Flynn lied about the source of his advance warning about the sanctions: From those staffing the President-elect at Mar-a-Lago.

Over the next six weeks, though, Peter Strzok did what FBI said they were going to do in that meeting on January 25, 2017: Actually check.

And using a series of NSLs that DOJ will try to claim were illegal, FBI would discover that Flynn was using at least four different phone lines — his known BlackBerry, the phone he used to call Kislyak, and at least two more. At a minimum, they would have discovered Flynn’s coordination with Mar-a-Lago, which would ultimately yield content showing that those at Mar-a-Lago were the ones who gave him the heads up on sanctions. They might have discovered a curious pattern of calls with SJC staffer Barbara Ledeen’s husband Michael. They may have found more extensive calls with Russians, or more interesting traffic around Flynn’s trip to Russia.

And who knows? They might have found a phone directly to the President.

This is the additional evidence that William Barnett, DOJ’s star witness, claims is not evidence that Flynn was hiding his Mar-a-Lago calls to protect the President.

DOJ [or Flynn’s Team] Altered an Exhibit in the Mike Flynn Case to Support a False Smear of Joe Biden

As noted, Peter Strzok’s lawyer has confirmed something I laid out earlier: DOJ submitted at least two sets of Strzok’s notes in its effort to blow up the Mike Flynn prosecution that had been altered to add a date that Strzok did not write himself.

This post will lay out why it matters.

I discovered that DOJ [or Flynn’s team] had altered Strzok’s notes because DOJ shared — and Sidney Powell submitted in purported support of her claim of prosecutorial abuse — two sets of those notes.

This set, shared on June 23 (the red rectangle is my annotation).

And this set, shared on September 23. Again, my red rectangle shows where DOJ added a date, January 4-5, 2017.

As Strzok’s lawyer, Aitan Goelman, explained that date is wrong.

On at least one occasion, the date added is wrong and could be read to suggest that a meeting at the White House happened before it actually did.

The correct date is January 5, 2017. The notes could not have been written on January 4 because they memorialize a meeting that happened on January 5.

As I demonstrated here, there was never a doubt about the date of the notes. They were written on January 5, 2017, after the meeting in question. The notes clearly match the known details — as laid out in this contemporaneous memo to the file by Susan Rice and elsewhere — of a meeting in the White House, attended by the President, Sally Yates, Joe Biden, Susan Rice, and Jim Comey, regarding what to do about the discovery that Mike Flynn had secretly called up the Russian Ambassador and undermined the sanctions President Obama imposed, in part, to punish the Russians for tampering in our election.

In spite of the fact that there was never a doubt that the notes were from January 5, 2017, when DOJ shared the notes with Powell, they claimed that DOJ was uncertain of their date, and claimed falsely they could have been from January 3, 4, or 5.

This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.

Then, having been told, falsely, that the date of the notes was uncertain, Sidney Powell claimed they had been written on January 4, and used that to falsely claim that the idea of investigating Mike Flynn under the Logan Act came from Joe Biden.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

Thus far, all DOJ did was falsely claim not to know key details of this investigation, allowing Powell to set off a frenzy designed to impact the election.

But then DOJ [or Flynn’s team] submitted the second version of the notes and Powell submitted them again, claiming they pertained to a March 2017 meeting.

Now, had DOJ told Powell when they shared the altered notes and told Judge Sullivan, by association, when they filed the notice of discovery correspondence (belatedly) last night that these were annotated copies of Strzok’s notes, they would not be at risk of committing the crime of making false statements by altering a record (the same crime Kevin Clinesmith pled guilty to). Had they just explained, “these come from so-and-so’s investigative notebooks and they show that he, the investigator, [falsely] concluded that the notes could be from January 4, 2017 and that’s why poor Sidney Powell made a false, still-uncorrected attack on Joe Biden in a filing before this court,” then this wouldn’t be a problem. I mean, they’d still have to explain why they submitted an altered copy of the notes, rather than just correcting the record before Sullivan. But it would not amount to a false representation that these were — as Ballantine’s letter to Powell claimed they were — “handwritten notes of former Deputy Assistant Director Peter Strzok (23501 & 23503).”

But now it is the case that the record before Sullivan shows that DOJ [or Flynn’s team] submitted these altered notes while claiming that they were Strzok’s hand-written notes (having already submitted proof that the annotation is not part of the original).

It’s not just that — as Goelman explained — the notes, “could be read to suggest that a meeting at the White House happened before it actually did.”

It’s that DOJ already did read the notes to suggest a meeting happened before it actually did. DOJ, and by association, Flynn’s lawyer, already made that false claim. And they did so specifically to support an attack on Presidential candidate Joe Biden.

Update, 9/30: I’ve altered this to reflect that the alterations to the notes could have come from Flynn’s team, which might explain why Sidney Powell was so nasty about Strzok’s lawyer’s letter yesterday.

In Letter Confirming DOJ Altered Peter Strzok’s Notes, His Lawyer Identifies Additional Privacy Act Violations

Among a slew of last minute documents submitted in advance of today’s hearing in the Mike Flynn case, Peter Strzok’s lawyer, Aitan Goelman, confirmed what I laid out here and here: DOJ altered some of the exhibits submitted in their effort to blow up Flynn’s prosecution.

Some of Mr. Strzok’s notes included in this attachment appear to have been altered. On at least two occasions, there were handwritten additions, not written by Mr. Strzok, inserting dates, apparently designed to indicate the date or dates on which the notes were written. On at least one occasion, the date added is wrong and could be read to suggest that a meeting at the White House happened before it actually did.

Goelman included those both altered records pertaining to Strzok (there may be one related to Andrew McCabe as well), including the one that shows someone wanted to implicate Joe Biden in all this.

That may not be the most important thing Goelman established, however.

Among the things DOJ released the other night was yet another version of the Strzok and Lisa Page texts. When she sent them to Flynn’s lawyers, Jocelyn Ballantine admitted the relevant texts had been provided to Flynn in 2018, before he allocuted his guilty plea a second time.

We are also providing you with additional text messages between former DAD Strzok and Lisa Page (23516-23540). As you know, some of these messages were originally made available to Flynn’s former attorneys on March 13, 2018 through a publicly available link to a Senate webpage. On June 24, 2018, the government provided a link to a second website that contained additional text messages. In an abundance of caution, we are providing you additional text messages in this production; please note that purely personal messages have been deleted from this production.

DOJ seems to have re-released the texts in an effort knit together unrelated actions to suggest they all related to Mike Flynn. Among the texts included in this release, purportedly in support of blowing up Mike Flynn’s prosecution, I can identify texts pertaining to:

  • The investigation into Russia’s attack on the US
  • The Mid-Year Exam investigation into Hillary’s server
  • The general Crossfire Hurricane investigation
  • Extensive efforts to ensure the Crossfire Hurricane investigation remained secret
  • Efforts to ensure that Obama officials didn’t politicize the Mike Flynn intercepts
  • Specific Crossfire Hurricane sub-investigations, including substantial threads pertaining to Carter Page and George Papadopoulos
  • The opening of the Jeff Sessions false statements investigation
  • The bureaucratic set-up of the Mueller investigation
  • References to Kevin Clinesmith (and possibly some references to other Kevins)
  • Substantive critiques of Donald Trump (for example, pertaining to his desire to blow up NATO)
  • Discussions of Trump sharing highly classified Israeli intelligence with the Russians
  • Proactive ethical discussions about how to deal with the appointment of Rudolph Contreras, whom Strzok was friends with, to the FISA Court
  • Leak investigations, both into stories pertaining to Flynn or Trump and stories not related to Trump
  • Unrelated FISA applications
  • 702 reauthorization
  • Apparently unrelated cases, including things like CFIUS reviews

There are long swaths with half the side of the conversation left out, hiding what are clear changes of topic.

Then there are personal details, like talks about showers and anniversaries, as well as some emotional chatter and one declaration of love.

That makes Ballantine’s claim that, “purely personal messages have been deleted from this production,” utterly damning, particularly given the timing, September 23, and the fact that unlike past productions, this was not noticed to the docket in real time.

“Did your anniversary go ok? I don’t really want a lot of deta[]” is by any sane measure a purely personal message. It was not deleted or redacted from this production.

What DOJ decided to do, just days before a decision in the parallel lawsuits Strzok and Page have against DOJ alleging a violation of the Privacy Act for the release of personal information, was to release more personal information, information that had — in the past, under an earlier purported ethics review of what was releasable — been deemed personal information.

DOJ knit together a bunch of texts that DOJ admits were already public before Flynn allocuted his guilty plea a second time, but threw in yet more personal texts.

And then, on September 25, Amy Berman Jackson ruled that Page and Strzok should both get discovery to prove their Privacy Act (and in Strzok’s case, other claims) cases. That makes all of this — all the decisions that led up to to the release of these texts — discoverable in what I assume will be an expanded Privacy Act lawsuit.

It’s unclear what malicious thinking led DOJ to include more texts attempting to humiliate Strzok and Page (even while providing a slew of other information making it clear that Strzok did not have it in for Flynn). But they just likely made this entire process subject to discovery in a lawsuit overseen by Amy Berman Jackson.

Sidney Powell Accuses William Barnett of Committing “Outrageous, Deliberate Misconduct” and Kenneth Kohl Hides Evidence that Brandon Van Grack Did Not

I want to pause for a moment and look at the maneuvers that Billy Barr pulled last night to try to substantiate a reason to blow up the Mike Flynn case.

First, on Wednesday, the less crazy attorneys on Mike Flynn’s team, William Hodes and Lindsay McKesson, moved to withdraw. It’s an awfully weird time for lawyers to withdraw from a case, unless they’re trying to leave town before the shit starts hitting the fan.

Unless I’m missing something, Sullivan has not approved their motion.

Then, last night, Sidney Powell submitted a memo with a bunch of exhibits, every single one of which have Bates stamps reflecting these are SCO documents:

Exhibit A:

Exhibit B:

Exhibit C:

Exhibit D:

Exhibit E:

That means that Mueller team members involved in Flynn’s case would have had access to these documents.

In her memo, Powell argues that the exhibits “establish[] misconduct” and are proof of Brady violations. She emphasizes that these documents were “long concealed by the Special Counsel and FBI.”

On May 7, 2020, the Government moved to dismiss with prejudice the prosecution of General Flynn. ECF No. 198. Until this case is dismissed with prejudice, the Government has a continuing obligation to provide to the defense all evidence that is exculpatory of General Flynn, establishes misconduct by the Government in its many capacities that contributed to this wrongful prosecution, or otherwise is favorable to the defense. Brady v. Maryland, 373 U.S. 83 (1963). The defense has a continuing obligation to make a record that mandates this dismissal— especially in view of this court’s unprecedented procedures and position.

[snip]

These documents provide information long known to the agents and others at the highest levels of the Department of Justice and the FBI; information long concealed by the Special Counsel and FBI. This evidence shows outrageous, deliberate misconduct by FBI and DOJ—playing games with the life of a national hero.

Then, later in the night, DOJ released a 302 memorializing a recent interview with William Barnett which I showed  was a self-contradictory shitshow. In the accompanying memo, Kenneth Kohl, Acting Principal Assistant US Attorney in DC, noted that Barnett, “handled the counterintelligence investigation of Mr. Flynn, and was thereafter assigned to the Special Counsel’s Office.”

Pursuant to that continuing review, an interview was recently conducted of the former case agent, SA William Barnett, who handled the counterintelligence investigation of Mr. Flynn, and was thereafter assigned to the Special Counsel’s Office investigating Russian interference in the 2016 Presidential Election.

Which is to say that yesterday, Sidney Powell submitted a brief arguing that William Barnett — her new star witness — engaged in “outrageous, deliberate misconduct,” and then later in the day, DOJ submitted a contradiction-riddled interview with that Agent that Powell had earlier accused of engaging in “outrageous, deliberate misconduct.”

Things get stranger.

In her filing, Powell claims that she has included Exhibits D and C as proof that Flynn satisfied the registration obligation.

Newly produced notes of Peter Strzok show: Strzok met with Bruce Schwartz, Lisa, and George at DOJ on March 28, 2017, where he noted Flynn Intel Group “satisfied the registration obligation” and “no evidence of any willfulness.” Nonetheless, “Bruce” decided to issue subpoenas to Flynn Intel Group “and more.” Exhibits C, D.

Exhibit D seems to show something dramatically different. It seems to show that the AG (that is, Jeff Sessions) met with Turkish Ministers and tried to vouch for Flynn about the secret work that Turkey was doing.

It seems odd to go to the guys who were hoping to keep their relationship with Flynn secret to ask them whether it was secret. Moreover, if they’re the ones vouching for it — and not Flynn’s cut-out, Ekim Alptekin — it would seem to suggest Flynn was working for Turkey, which is what he testified to under oath but not what he wrote on his delayed FARA filing. If so, this doesn’t help Flynn at all. It only serves to hurt him.

Things get stranger still.

Contrary to Powell’s claim, Exhibit C has nothing to do with Turkey. Instead, it’s a set of Peter Strzok’s notes from Jim Comey’s debrief of a meeting at the White House on January 5, 2017.

 

We’ve seen these notes before. They are a copy of notes submitted in June (which also have a — different — SCO Bates stamp on them, indicating that Barnett, the man Powell has accused of “outrageous, deliberate misconduct,” had access to those too).

 

The primary difference, aside from DOJ’s decision to newly release notes indicating that President Obama said to put the right people on this, is that the version submitted last night, the version that Powell claims to be about a March 28, 2017 meeting on Turkey is dated, “1/4-5/17.”

When Powell submitted the notes in June, she said they were proof that Vice President Biden “personally raised the idea of the Logan Act.”

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

I noted then that there was no question about date the notes were written, because they obviously describe a meeting that multiple documents (including one that has been public since February 2018, long before Flynn allocuted his guilt a second time) make clear happened on January 5, 2017. Nevertheless, Powell claimed (and set off a predictable resulting frenzy, which was probably the point) that they were proof that Biden had it in for Mike Flynn.

Now, normally, when you make an accusation to a court that later gets debunked, you make a filing with the court admitting you were wrong. In this case, Powell would have also had to admit that anyone who believed these notes were from January 3 — as Jeffrey Jensen had suggested they might be — provably knew fuckall about what he was looking at.

But if Powell were to do that, she’d be admitting that Jensen doesn’t know fuckall about what he is investigating on the same day she accused Barnett to have engaged in “outrageous, deliberate misconduct.” So instead, Powell just slipped the exhibit in with her filing without calling attention to her prior false claims.

But wait. Things get still stranger.

Finally, Kohl submitted the 302 with redactions of the name of an “SCO Atty 1.” Now, it has been the standing rule in DOJ that the AUSAs who worked for Mueller are public. That way Trump can rant about their political leanings at rallies.

Last night, for the first time ever, DOJ has decided that these attorneys are not senior enough to have their names released.

Several of those redactions of “SCO Atty 1’s” name, however, make it clear that the person has a two part last name, one that wraps at the end of a line.

Just one of Mueller’s attorneys has such a name (Adam Jed is the only one whose last name is short enough to fit in the first part of those redactions). That attorney is Brandon Van Grack. Indeed, the 302 from an interview that Barnett discussed in his interview makes it clear that Van Grack was the one Barnett is working with. So along with submitting proof that Barnett engaged in “outrageous, deliberate misconduct” as well as providing proof that Jensen led others to make a material misrepresentation to Emmet Sullivan, Kohl just submitted proof that Van Grack routinely took the side of Barnett. And that he, Kohl, was hiding that.

Call me crazy, but John Gleeson can just look at yesterday’s filings to show that Sidney Powell and Kenneth Kohl are accusing each other and Jeffrey Jensen of misconduct, at the same time that they’re hiding evidence that Van Grack did not engage in misconduct. That’s the the kind of misconduct that Emmet Sullivan might use to justify refusing to dismiss the prosecution.

Update: It’s not really clear whether the Bates reflects documents obtained by SCO or those investigating SCO. If it’s the latter, it raises real questions about whether Strzok’s notes are one or two copies.

After Bill Barr Minimized Roger Stone’s Threat against Amy Berman Jackson, Emmet Sullivan Got Threatened by a Mike Flynn Supporter

In this post, I showed how Billy Barr justified a lenient sentence for Roger Stone in part by treating threats against judges as a technicality.

As I laid out in this post, prosecutors asked for the following enhancements:

  • 8 levels for the physical threats against Randy Credico
  • 3 levels for substantial interference
  • 2 levels for the substantial scope of the interference
  • 2 levels for obstructing the administration of justice

The last of these, per the original sentencing memo, had to do with Stone’s threats against ABJ.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

Barr’s memo got to the outcome he wanted by eliminating the 8-point enhancement for physically threatening Credico and the 2-point enhancement for threatening ABJ.

The memo suggested the 8-level enhancement shouldn’t apply, first, because doing so would double Stone’s exposure.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases.

[snip]

Then, Barr’s memo argued (and this is the truly outrageous argument) that Stone’s attempts to obstruct his own prosecution overlapped with his efforts to obstruct the HPSCI investigation.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

Effectively, this language treated threats against a judge as unworthy of enhancement.

The Attorney General of the United States found a way to go easy on the President’s life-long rat-fucker by downplaying the importance of threats against those participating in trials.

After an anti-feminist Trump supporter allegedly targeted the family of federal judge Esther Salas in July, Barr claimed to care about such attacks on judges, even though he had treated the threat against ABJ as a technicality.

Unbelievably, the very next week, when Barr lied under oath about treating threats to judges as a technicality, he would have known of another threat against a judge.

Not just any judge.

Another judge presiding over a case against a Trump flunky, Emmet Sullivan. In August, a Long Island man, Frank Caporusso, was charged for threats left on Sullivan’s Chambers phone.

On May 15, 2020, Deputy United States Marshal Louie McKinney, Jr. discovered threatening statements made against Victim One and his staff while listening to voicemails left on Victim One’s Chambers’ telephone line. One voicemail, which recorded a male caller speaking for approximately 30-31 seconds, stated:

We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a fuck who you are. Back out of this bullshit before it’s too late, or we’ll start cutting down your staff. This is not a threat. This is a promise.

[snip]

Investigation also revealed social media accounts that appear to belong to the defendant. These accounts, primarily a Twitter account, contain posts and images calling various politicians and celebrities “morons” and “sycophants.” The last “tweets” were sent on July 3, 2020. Additionally, a twitter reply was sent at 10:48 p.m. on May 14, 2020 (the same evening the voicemail was left).

WaPo’s Ann Marimow first suggested the timing of the threat suggested it was Sullivan and Newsday confirms it.

According to sources, Caporusso accessed the “dark web,” including sites that encouraged people to take action against the judge for his overall handling of the Flynn case.

So after Bill Barr treated a threat against a judge presiding over a Trump associate as a technicality, an apparent QAnon nutter with a long gun responded to Sullivan’s actions in QAnon supporter Mike Flynn’s case by threatening to assassinate Sullivan.

“The Buck Stops at the Top:” In January, Bill Barr’s DOJ Decided the Correct Decision Was to Send Mike Flynn to Prison

I’d like to make one more point about Billy Barr’s rant last night. Over and over again, Barr suggested that line prosecutors have been making hyper-aggressive decisions that the Department of Justice cannot answer for and that his involvement simply amounts to ensuring that the decisions DOJ makes are ones he’s willing to take responsibility for.

Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management.  Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct.  There aren’t any.  Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.  Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates.  But that does not mean blindly deferring to whatever those subordinates want to do.

This is what Presidents, the Congress, and the public expect.  When something goes wrong at the Department of Justice, the buck stops at the top.  28 U.S.C. § 509 could not be plainer:  “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”

And because I am ultimately accountable for every decision the Department makes, I have an obligation to ensure we make the correct ones.  The Attorney General, the Assistant Attorneys General, and the U.S. Attorneys are not figureheads selected for their good looks and profound eloquence.

They are supervisors.  Their job is to supervise.   Anything less is an abdication.

To the extent Barr is talking about the Mueller investigation, every single prosecutorial decision was reviewed by Acting Attorney General Rod Rosenstein. For those decisions, then, Barr’s not actually talking about decisions made by line prosecutors. He’s talking about decisions overseen by someone vested, like him, with all the authority of DOJ.

For precisely the reason Barr lays out — that DOJ must be able to answer for things DOJ does — it’s highly unusual for DOJ to flip-flop on prosecutorial decisions that past Attorneys General have approved.

But with one action in the Mike Flynn prosecution — possibly one he thought of when he invoked probation sentences in one of his last paragraphs — Barr’s interventions into the cases of Donald Trump’s flunkies is far worse than that.

In short, it is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

In moving to dismiss Flynn’s prosecution, Barr was overriding a decision he himself had approved of. In January, DOJ called for prison time for Flynn, citing the materiality of his lies and his abuse of trust.

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime. As the Supreme Court has noted:

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

United States v. Mandujano, 425 U.S. 564, 576 (1975); see also Nix v. Whiteside, 457 U.S. 157, 185 (1986) (“[t]his Court long ago noted: ‘All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth.’”) (quoting In re Michael, 326 U.S. 224, 227 (1945)). All persons carry that solemn obligation to tell the truth, especially to the FBI.

The defendant’s repeated failure to fulfill his obligation to tell the truth merits a sentence within the applicable Guidelines range. As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it.

This was no decision made by rogue line prosecutors, Brandon Van Grack and Jocelyn Ballantine. In December, Jessie Liu signed a request for an extension so that the “multiple individuals and entities” that had to approve the new sentencing recommendation could do so.

There are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations.

And then again in January, Jessie Liu got an extension so the “multiple individuals and entities” who had to review the sentencing memo could do so.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so.

Bill Barr says he is responsible for making the correct decision, and his DOJ reviewed the decision to imprison Mike Flynn at length. Taking him at his word, that means Bill Barr believed, in January, knowing all the details that were “new” to Timothy Shea when he wrote his motion to dismiss, but not new to Michael Horowitz and John Durham, who had already reviewed them, that the correct decision was to send Mike Flynn to prison.

It’s bad enough that Barr has repeatedly refused to stand by decisions made by others imbued with the authority of the entire DOJ under 28 U.S.C. § 509.

But Bill Barr won’t even stand by his past decisions.

Judge Sullivan Amicus John Gleeson Lays Out How DOJ Is Arguing Against DOJ, then Invokes Barr’s Other Interference

When Judge Emmet Sullivan holds a hearing on DOJ’s motion to dismiss the Mike Flynn prosecution later this month, DOJ will likely refuse to answer any questions about why just Timothy Shea, Bill Barr’s lifelong flunky, signed the original motion to dismiss.

But even without raising that issue, retired Judge John Gleeson — acting as Sullivan’s amicus to oppose the motion — has amplified Shea’s role in his reply brief, submitted today.

He did so by noting that Shea’s argument is fundamentally incompatible with things DOJ claimed before Barr intervened (in filings arguing against Flynn’s Brady claims) and with things DOJ has claimed since (in a response brief signed by AUSA Jocelyn Ballantine).

Effectively, then, Gleeson has laid out that even DOJ believes DOJ lied in their motion to dismiss.

He does so, first of all, with materiality. Gleeson lays out that the government didn’t bother to defend the radical claims about materiality made in the Shea motion.

Although the Government attempts to respond to other arguments in my brief, it offers no response here. It does not claim I have misapprehended or misapplied the law. It never explains why one legal rule—the one set forth in its motion—applies to Flynn, while a different legal rule applies to everyone else. It never explains why its own lawyers erred so grievously in stating the law. It never explains why Flynn’s statements, in this setting, were not even capable of affecting the FBI’s general function. The Government’s silence on these crucial points is, by itself, sufficient to establish that its claims about materiality are pretextual.

Then, Gleeson argues that the government not only got the standard wrong, but misstated the evidence. To support it, he did what I’ve been clamoring for for months — he pointed to the government’s own claims about the materiality of Flynn’s lies (though he relies on a different and weaker filing than the government’s most aggressive statement on materiality, which had to he delayed twice to get senior DOJ review), noting that not that long ago the government argued aggressively that Flynn’s lies were material.

I have explained that the evidence demonstrating materiality here is so strong that the Government could satisfy an even tougher standard than the law requires—specifically, by demonstrating that Flynn’s statements had an actual effect on a specific FBI investigation. See ECF No. 225 at 41–42, 48–49. The Court need not take my word alone for this point. It can take the Government’s own word, as set forth in briefs submitted (unlike the Rule 48(a) motion) by the prosecutors who actually investigated this case, explaining that Flynn’s lies in fact affected the FBI’s investigation into contacts between the Trump campaign and the Russian government (a.k.a. “Crossfire Hurricane”). See ECF No. 132 at 10–11 (stating that Flynn’s “false statements to the FBI . . . were absolutely material”).

He also shows that the response brief — the one signed by Ballentine — offers no response on materiality itself but instead, “kick[s] up administrative dust.”

[T]he Government now abandons any discussion of the supposedly “critical”—but actually irrelevant—“predication threshold” that formed the backbone of its original motion. See ECF No. 198 at 16; see also id. at 2–5, 13–18. Instead, the Government refers vaguely to an irrelevant internal draft closing memorandum, “disagreement” about protocol, and other supposed “procedural irregularities,” ECF No. 227 at 2, 26–27, none of which is either particularly irregular or has any legal significance in proving materiality, see ECF No. 225 at 42–44. The Government seeks to conceal its retreat by kicking up administrative dust, but the bottom line is that it no longer stands by its own motion’s implausible reasoning.

Significantly, he mocks what is, in Billy Barr’s little mind, the real reason Flynn’s case should be dismissed: that many of the people who prosecuted Flynn have since been hounded out of government and are suing. Gleeson points out not just that two of them (Andrew McCabe and Lisa Page) are not witnesses to Flynn’s lies, but that in other places the government celebrates the experience of Peter Strzok and Joe Pientka (and had disclosed Strzok’s damning texts before Flynn pled guilty both times).

[T]he Government trots out a new explanation for its materiality rationale. The Government previously claimed to believe that the available evidence, taken at face value, showed Flynn’s statements to be immaterial. But it now says it has a different concern: that the witnesses it would rely upon to introduce the evidence might lack credibility with a jury. ECF No. 227 at 27–28. As this Court well knows, shifting explanations are classic red flags of pretext. See, e.g., Foster, 136 S. Ct. at 1751; Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir. 2011).

In any event, this claim makes no sense. The Government asserts without explanation that it “would need to prove its case” by calling as witnesses individuals from the FBI whose credibility could be impeached. ECF No. 227 at 27. But two of these “witnesses” were not present for Flynn’s false statements, so it is entirely unclear why their testimony would be required or even permitted (under evidentiary rules) in the Government’s case-in-chief. And more generally the Government’s professed credibility concerns are not plausible. They center on professed evidence of political bias by an interviewing agent that both the Government and Flynn have known about from the start of the case, see ECF No. 122 at 8–9; ECF No. 144 at 25– 34 (this Court discussing, at length, the history of the referenced text messages and why they do not cast doubt on Flynn’s guilty plea), and two pages after assailing the agents’ credibility, the Government does a back-flip to proclaim the very same agents “highly experienced investigators” whose assessment of the interview should be credited, see ECF No. 227 at 30. As I previously explained—without response from the Government—“[n]o competent lawyer thinks this way.” ECF No. 225 at 55.

To defeat the government’s claims that it would have a hard time proving Flynn’s lies were false, Gleeson points out a key disagreement Flynn has with the government. The government (in the form of prosecutor Ballantine, but others signed the brief too) maintains prosecutors did not commit any abuses.

[T]he Government affirmatively rejects Flynn’s own principal account of why his prior admissions of falsity should not be credited: namely, that prosecutors had threatened him with charges against his son. Compare ECF No. 160-23 at 8 ¶ 34 (Flynn Declaration describing “intense pressure,” including “a threat to indict my son Michael”), and id. at 11 ¶ 46 (“I allowed myself to succumb to the threats from the government to save my family . . . .”), with ECF No. 227 at 28 n.1 (“[T]he [G]overnment’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded . . .”).

Given that Flynn repeatedly admitted to lying—and given that the Government is unwilling to accept Flynn’s claims about why those admissions were untrue—the Government struggles to offer a coherent account of why it doubts its ability to prove falsity.

Even Billy Barr, in sworn testimony before the House Judiciary Committee, said there were no Brady violations here (though he lied, under oath, about whether files had been withheld from Judge Sullivan).

Having shown how DOJ disagreed with itself on materiality and falsity, Gleeson then notes how DOJ invented a completely new reason — interests of justice — to dismiss the case.

The Government’s Rule 48(a) motion stated that “continued prosecution of Mr. Flynn would not serve the interests of justice.” ECF No. 198 at 12. It then elaborated on the reason: “the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt.” Id. The Government thus asserted that the “interests of justice” would not be served by pursuing a case in which the Government doubts it could prove materiality or falsity. See id. at 12–20. No free-standing “interest of justice” policy reason is apparent in the Government’s motion.

But the Government now insists otherwise, asserting that it has always advanced a third “separate” and “alternative” reason for dismissal wholly unrelated to the difficulty of proving the elements of its case. ECF No. 227 at 23, 25–26. While this conclusion would come as a surprise to any careful reader of the Government’s motion, it would not surprise anyone familiar with doctrines designed to uncover pretext. See Foster, 136 S. Ct. at 1751 (where a party’s “principal reasons” have “shifted over time,” it can be inferred “that those reasons may be pretextual”).

And what exactly is the Government’s non-merits reason for dismissal? The answer is unclear, since the Government never quite explains its newly minted rationale in the sole paragraph devoted to it. See ECF No. 227 at 25–26. It gestures vaguely at “enforcement priorities” and “policy assessments,” id. at 24, then rattles off a disjointed string of allegations regarding “circumstances surrounding the interview,” id. at 25. But these are just the same facts that are legally irrelevant to its materiality and falsity assertions. The Government does not explain what additional supposed significance it has suddenly “assess[ed]” those facts to have, or why Flynn’s conviction disserves the “interests of justice,” see id. at 23, given that his guilt is both conceded and readily provable. While the Government conveniently asserts that these “policy assessments” are “quintessentially unreviewable,” id. at 24, it never actually explains what the policy is, what judgment it made, or why the conduct of the FBI agents in question would warrant dismissal of this case given Flynn’s demonstrable and confessed guilt. See id. at 23–26.

Having shown that DOJ (in Ballantine’s reply) already showed that DOJ (in Shea’s motion to dismiss) was wrong, Gleeson notes that DOJ hasn’t even mentioned his arguments showing that there’s a more logical explanation for all this–that Trump demanded it.

As detailed in my opening brief, Flynn is a close ally of President Trump, who personally pressured the FBI director to “let this go” within weeks of Flynn’s crime, who has since repeatedly made clear his desire for Flynn to avoid criminal liability, see ECF No. 225 at 17, 56– 59, and who has expressed a desire to re-hire Flynn within his administration, see Max Cohen, Trump Says He Would Welcome Michael Flynn Back to His Administration, POLITICO (July 15, 2020, 11:08 AM), https://perma.cc/5EG4-CLTQ. Allowing dismissal for these “irregular” reasons would necessarily “implicate this Court” in denigrating “settled, foundational norms of prosecutorial independence.” ECF No. 225 at 59.

The Government does not disagree with any of this—presumably because it cannot. Indeed, the Government nowhere even mentions the President’s personal lobbying, let alone his virulent attacks on those previously involved in this prosecution. Based entirely on evidence already in the public view, the only coherent explanation for the Government’s exceedingly irregular motion—as well as its demonstrable pretexts—is that the Justice Department has yielded to a pressure campaign led by the President for his political associate. This Court need not “exhibit a naiveté from which ordinary citizens are free” by pretending otherwise. United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977). It should instead deny the Government’s request for leave under Rule 48(a) and proceed to sentencing.

Gleeson is exploiting DOJ’s failures to address his claims. But he’s probably right.

Gleeson expands the record to include solid evidence of prosecutorial abuse

Sullivan did not and will not order further discovery in this case. But Gleeson got three key pieces of additional information into his brief. He cited the SSCI Report describing why Flynn’s lies were material.

In its bipartisan report assessing Russia’s interference with the 2016 presidential election, the U.S. Senate Intelligence Committee similarly concluded that the “series of communications between Flynn and Kislyak” on sanctions was relevant to assessing “what Moscow sought to gain and the counterintelligence vulnerabilities associated with the Transition.” REPORT OF THE SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE ON RUSSIAN ACTIVE MEASURES CAMPAIGNS AND INTERFERENCE IN THE 2016 U.S. ELECTION, VOLUME 5: COUNTERINTELLIGENCE THREATS AND VULNERABILITIES, S. Doc. No. 116-XX, at 702 (1st Session 2020).

He pointed to Aaron Zelinsky’s testimony describing how Billy Barr personally intervened to sabotage the Roger Stone prosecution.

Most notably, there is now concrete evidence of another prosecutorial decision infected by “heavy pressure from the highest levels of the Department of Justice . . . based on political considerations.” See Oversight of the Department of Justice: Political Interference and Threats to Prosecutorial Independence: Hearing Before the H. Comm. on the Judiciary, 116th Cong. 2 (2020) (statement of Aaron S.J. Zelinsky, Assistant U.S. Att’y), https://perma.cc/48ZV-23EK. This prosecutorial decision concerned the Government’s sentencing recommendation for Roger Stone, another well-connected political ally of the President who committed serious crimes. There, as here, the President publicly assailed the Department of Justice for pursuing the prosecution. And there, as here, the Department of Justice succumbed to that corrupt pressure— though only after all four career prosecutors resigned from the case. As one of those career prosecutors later testified, senior officials at the Department of Justice exerted “significant pressure” to go easy on Stone, against the record of the case, customary prosecutorial practice, and departmental policy. Id. at 2. This occurred “because of [Stone’s] relationship to the President,” id., and “because the U.S. Attorney”—who also signed the Rule 48(a) motion in these proceedings—“was ‘afraid of the President,’” id. at 10.11

And he used that to invoke the case of Geoffrey Berman.

11 Perhaps those officials had reason to worry: the President recently fired a prominent and wellrespected U.S. Attorney who was investigating his associates. See Paul Le Blanc et al., White House Admits Trump Was Involved in Firing of Top US Attorney After Trump Claimed He Wasn’t, CNN (June 22, 2020), https://perma.cc/TPB5-ZXGQ.

Had he waited a few hours, he could have cited how John Durham’s deputy, Nora Dannehy, just resigned in part because of political pressure.

While Gleeson has not had the opportunity to develop a record about why this particular Barr intervention is thoroughly corrupt, he manages to show that Billy Barr here argues against Billy Barr, and in similar cases, did have a political purpose.

At the very least, he has succeeded in establishing a record that Billy Barr’s own DOJ disagrees with him.

It’s Not the Four Year Old Counterintelligence Investigation intro Trump We Need to Be Most Worried About — It’s the Ones Bill Barr May Have Killed

The other day, Mike Schmidt advertised a book by claiming that FBI never did any kind of counterintelligence investigation of Trump in parallel with the Mueller investigation. On Twitter, Andrew Weissmann debunked a key part (though not all) of that claim.

The aftermath has led to ongoing debates about what really happened. My guess is that Schmidt’s sources did not have visibility on the full scope of the Mueller investigation, and he didn’t read the Mueller Report, which would have helped him realize that. And while credible reports say Mueller didn’t investigate Trump’s historical financial ties to Russia (while I’ve read neither book yet, the excerpts of Jeff Toobin’s book adhere more closely to the public record than Schmidt’s), the public record also suggests Mueller obtained Trump-related records that most people don’t realize he obtained.

I reiterate that it is far more troubling that a co-equal branch of government — the one with impeachment power — chose not to pursue the same questions about Trump’s financial vulnerabilities to Russia. If you want to express outrage that no one has investigated whether Trump is beholden to Russia, focus some of it on Richard Burr, who suggested Trump’s financial vulnerability to Russia was irrelevant to a report specifically focused on counterintelligence threats.

Still, there’s something still more urgent, one that is getting lost in the debate about what happened three or four years ago.

There were, as of at least April, at least one and probably several investigations implicating counterintelligence tied to Trump, through his top associates. But they tie to the same cases that Billy Barr has undermined in systematic and unprecedented fashion in recent months. It is a far more pressing question whether Barr has undermined counterintelligence investigations implicating Trump’s ties to Russia by ensuring those who lied to protect him during the Mueller investigation face no consequences than what Rod Rosenstein did forty months ago.

Consider Mike Flynn. The most newsworthy thing Robert Mueller said — under oath — over the course of two congressional hearings is that “many elements of the FBI” were looking into the counterintelligence risks created by Mike Flynn’s lies about his communications with Russia.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

As part of Mueller’s analysis about whether Trump fired Jim Comey to stop the investigation into Flynn, he weighed whether the Flynn investigation implicated Trump personally. But he found — largely because Flynn and KT McFarland, after first telling similar lies to investigators, later professed no memory that Trump was in the loop regarding Flynn’s efforts to undercut sanctions with Sergey Kislyak, and Steve Bannon repeated a White House script saying he wasn’t — that the evidence was inconclusive.

As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

But McFarland did not recall providing the President-Elect with Flynn’s read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

We’ve since seen transcripts that show Mike Flynn telling Sergey Kislyak in real time that Trump was aware of the communications between the two (and John Ratcliffe is withholding at least one transcript of a call between the men).

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

KISLYAK: yeah.

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

KISLYAK: You’re absolutely right.

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

Certainly, Russia would have reason to believe that Flynn’s efforts to undermine sanctions were directed by Trump.

In January, a sentencing memo that was delayed so it could be approved by the entire chain of command at DOJ, explained why all this was significant.

Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

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

Flynn’s forgetfulness about whether Trump ordered him to undermine sanctions went to the core question of whether Trump worked with Russia in their efforts to throw him the election.

And that sentencing memo was the moment when Billy Barr threw two different lawyers — one a lifetime associate of his — into the project of creating a false excuse to undermine the prosecution of Flynn. More recently, Acting Solicitor General Jeffrey Wall told the DC Circuit that Barr had secret reasons for overturning the prosecution.

The Attorney General of course sees this in a context of non-public information from other investigations.

[snip]

I just want to make clear that it may be possible that the Attorney General had before him information that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.

[snip]

It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.

This secret reason is why, Wall suggested, it would cause irreparable harm for DOJ to have to show up before Judge Emmet Sullivan and explain why DOJ blew up the prosecution.

Then there’s Roger Stone. Stone very loudly claimed (improbably) that he could have avoided prison had he not lied to protect Donald Trump. And Trump rewarded him for it, commuting his sentence to ensure he didn’t spend a day in prison.

But at least as of April, an investigation into whether Stone was part of a conspiracy with Russia and/or was a Russian agent — implicating 18 USC 951, not just FARA — was ongoing. Among the things Stone was involved in that Trump refused to answer Mueller questions about was a pardon for Julian Assange, one Stone started pursuing at least as early as November 15. While no sentencing memo has explained this (as it did with Mike Flynn), whether Trump and Stone used promises of a pardon to get Assange to optimize the WikiLeaks releases goes to the core question of whether there was a quid pro quo as part of 2016.

Finally, there’s Paul Manafort, whose close associates, the SSCI Report makes clear, were part of GRU and appear to have had a role in the hack-and-leak. After securing a cooperation deal, Manafort changed his story, and then shared details of what Mueller’s team knew with the President.

Yet, even with Manafort’s ties to the effort to steal our election, the Attorney General used COVID relief to ensure that Manafort would escape prison.

While it’s not clear whether John Ratcliffe, Barr, or the IC made the decision, the redaction process of the SSCI report denied voters the ability to know how closely tied Trump’s campaign manager is with the people who helped steal the election. What we do know is the effort Manafort started continues in Trump’s efforts to extort Ukraine and spew Russian disinformation.

For all three of the Trump associates where we know Barr intervened (there’s good reason to suspect he intervened in an Erik Prince prosecution, too), those people implicate Trump directly in counterintelligence investigations that were, fairly recently, ongoing.

Whether or not there was a counterintelligence investigation implicating Trump on May 20, 2017, after Rod Rosenstein scoped the Mueller investigation, we know counterintelligence investigations have implicated him since. What we don’t know is whether, in an effort to help Trump get reelected, his fixer Billy Barr squelched those, too.

Update: In an appearance for his book, Schmidt said he considered writing it (in 2020) about just the first 26 days of his presidency. It’s a telling comment given that his description of what happened with counterintelligence doesn’t accord with what the Mueller Report itself said happened around 500 days into Trump’s presidency.

Emmet Sullivan’s “Appropriate Dispatch” May Extend past November 3

As noted, yesterday the DC Circuit rejected Mike Flynn’s request that they order Judge Emmet Sullivan to grant the motion to dismiss requested by the government. While the per curiam opinion deferred to Sullivan to resolve the motion to dismiss and left him on the case, the last line of the majority opinion ordered Sullivan to hurry things along.

As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.

Today, in an order effectively written immediately after the Circuit Court order, Judge Sullivan instructed the two sides to resume the process he set back before Flynn moved for a writ of mandamus.

In light of the Opinion and Order issued by the Court of Appeals on August 31, 2020 and Circuit Rule 41(a)(3), which states that an order denying mandamus relief “will become effective automatically 21 days after issuance in the absence of an order or other special direction… to the contrary,” the parties are directed to file a joint status report with a recommendation for further proceedings by no later than September 21, 2020. The parties’ joint status report shall propose a briefing schedule regarding the deadlines for (1) the government and Mr. Flynn to file any sur-reply briefs; and (2) the government, Mr. Flynn, and the Court-appointed amicus curiae to file a consolidated response to any amicus brief of non-Court-appointed amicus curiae. It is FURTHER ORDERED that the parties shall propose three dates and times to hold oral argument. If the parties are unable to agree on a joint recommendation, the joint status report shall include each party’s individual recommendations.

In legal terms, the order requiring a status report on September 21 is also an immediate action. Circuit Court orders don’t go into effect for 21 days, in part to give the parties an opportunity to appeal. So Sullivan couldn’t require any action before September 21. It asks the parties to act immediately.

But it might well stretch past November 3, in any case. At the very least, it might force Billy Barr’s DOJ to explain why they lied to Sullivan to justify blowing up the prosecution of a guy who lied for Trump’s benefit during the last weeks of the election season.

Back when Sullivan laid out the process that the DC Circuit just let him continue on May 19, he gave amicus John Gleeson 21 days to file his opening brief, then a week for each response, with a surreply granted to Flynn and the government from the start.

MINUTE ORDER as to MICHAEL T. FLYNN granting 209 Motion to File Amicus Brief. The following schedule shall govern the proceedings in this case subject to a motion for reconsideration, for good cause shown, filed by no later than 12:00 PM on May 26, 2020: (1) the Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020; (2) any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae shall be filed by no later than 12:00 PM on June 10, 2020; (3) the government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae by no later than 12:00 PM on June 17, 2020; (4) the Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020; (5) the government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020; and (6) the government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020. Movants seeking leave to file an amicus brief are HEREBY NOTIFIED that the Court will deny any motion for leave to file an amicus brief that fails to strictly comply with the applicable Local Rules. It is FURTHER ORDERED that the Court schedules oral argument for July 16, 2020 at 11:00 AM in Courtroom 24A.

The initial briefs have been submitted, and Gleeson completed it, but did not submit it because it would have been posted on the day Neomi Rao initially upheld Flynn’s petition for a writ.

So Gleeson could presumably submit his reply brief on September 21, and the government and Flynn could — and presumably would want to — submit their surreply two days later, on September 23.

But Sullivan also included time in the original order for the two sides to reply to the other amicus briefs (some of which support Flynn and the government). He originally provided 8 days for that to happen, or 6 after the surreply.

If the parties used the same amount of time, it would put that deadline on September 29.

But — again, according to the original schedule — the hearing would not have happened until two weeks later. According to this schedule, that would put any hearing on October 13. That would put the hearing just three weeks before the Presidential election on November 3, lightening fast for the kind of meticulous opinions Sullivan has written earlier in this case.

By all appearances, Sullivan is responding with appropriate dispatch, as ordered by the Circuit, implementing his prior schedule on the quickest possible track given the earlier deadlines. But appropriate dispatch might still drag this thing out until it becomes clear whether Donald Trump will remain President.

[In parallel news, the Second Circuit has issued a stay on Cy Vance’s subpoena for Trump’s tax returns, and that is virtually guaranteed to drag out past the election as well.]