Posts

Nora Dannehy Just Gave Emmet Sullivan the Evidence of Extreme Abuse to Sentence Mike Flynn

Though the full DC Circuit sent the Mike Flynn case back for Judge Emmet Sullivan to rule on DOJ’s motion to dismiss, at least some of the judges on the panel seemed to believe only something extraordinary — like the judge witnessing bribery in his courtroom — would merit refusing to grant the motion to dismiss.

Nora Dannehy, in resigning from the Durham investigation Thursday night, just gave Judge Sullivan that extraordinary reason.

The Hartford Courant story breaking the news provides a one detail explaining why.

First, perhaps to explain the non-political aspect of why Dannehy quit, the report describes that she was told the assignment would take six months to a year when she first came back in March 2019.

Dannehy was told to expect an assignment of from six months to a year when she agreed to join Durham’s team in Washington, colleagues said. The work has taken far longer than expected, in part because of complications caused by the corona virus pandemic. In the meantime, team members – some of whom are current or former federal investigators or prosecutors with homes in Connecticut – have been working long hours in Washington under pressure to produce results, associates said.

That would have put whatever pre-determined conclusion Billy Barr expected between September 2019 and March 2020. Barr presumed he’d get that outcome, then, by the time around February 1 when he appointed Jeffrey Jensen — to review the Flynn prosecution and come up with some excuse to dismiss it.

When Catherine Herridge interviewed Barr in the wake of the motion to dismiss, Barr specifically said that he appointed Jensen when he did even though John Durham was investigating the very same things. He had to appoint Jensen, Barr explained, because of some filings in the case meant “we had to sorta move more quickly on it.”

President Trump recently tweeted about the Flynn case. He said, “What happened to General Flynn should never be allowed to happen to a citizen of the United States again.” Were you influenced in any way by the president or his tweets?

No, not at all. And, you know, 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.

This is one particular episode, but we view it as part of a number of related acts. And we’re looking at the whole pattern of conduct.

Jensen, who was a firearms prosecutor, with no experience in counterintelligence, did truly shoddy work. At one point, he handed over some notes from Peter Strzok, claiming not to know they had to have been written on January 5, which caused the usual frothers to invent a new conspiracy theory out of them. Either he knew the overcall so poorly not to know the context, or he was just feeding the trolls. You decide.

He also made his decision without waiting to learn from Bill Priestap that the purpose of the Mike Flynn interview is precisely what every single piece of evidence said it was, to see whether Flynn would tell the truth about his calls with Sergei Kislyak. Instead, the decision came just before Covington and Burling would have had an opportunity to describe all the times Flynn lied to his lawyers in the process of submitting a FARA filing that still hid that he knew he had been working for Turkey.

In the second hearing before the DC Circuit, Jeff Wall revealed that the reason a hearing into DOJ’s reason for the motion to dismiss would do irreparable harm was because Billy Barr had a secret reason for dismissing the case, one pertaining to “non-public information from other investigations.”

The Attorney General 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 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.

[snip]

If all we had to do was show up and stand on our motion, no, we’ve already said that to the District Court.

The revised explanation prosecutor Jocelyn Ballantine offered for the motion to dismiss says that key witnesses, including Strzok, have been discredited (though as John Gleeson noted in his reply brief, her filing also relied on Strzok’s expertise).

All of which provides a good deal of evidence that Barr’s plan was to use Durham’s results to say that Mike Flynn shouldn’t be prosecuted (not even for selling out the country with Turkey). When those results didn’t come in on time, Barr told Jensen to go dig up evidence that had already been shared and reviewed by DOJ IG and the Durham inquiry, claim it was new (when much of it wasn’t even new to Judge Sullivan), and based on that, flip-flopped off of DOJ’s previous support for prison time.

Yesterday, Dannehy made it clear that the results of the Durham inquiry have also been pre-determined. (Though I half wonder whether the Durham team reviewed Peter Strzok’s book, found ready explanations to questions that neither HJC/OGR nor SSCI bothered to ask about the investigation — most likely about how the team chose four targets — and realized they were chasing hoaxes invented by Fox News.)

There’s is increasing evidence that Billy Barr moved to dismiss Flynn’s prosecution based of the results he is demanding Durham produce.

Barr may still get Durham to produce the results he has demanded. But that may not come before Judge Sullivan has an opportunity to ask about it.

Jeff Wall: It Would Cause Attorney General Barr Irreparable Harm If He Had to Reveal His Secret Reason He Moved to Dismiss Flynn’s Prosecution

Before I explain the most important takeaway from the Mike Flynn hearing, let me note two points.

First, the Department of Justice is quite clear that none of the materials turned over recently to Mike Flynn were Brady material showing exculpatory evidence. DOJ has disclaimed any prosecutorial misconduct in Judge Sullivan’s courtroom. Bill Barr even said as much, under oath, before the House Judiciary Committee. DOJ has falsely claimed they were “new,” but some of the actual details weren’t even new to Flynn, much less new to DOJ, even if some of the documents were. That’s important because a number of the judges today seem to believe that DOJ wants to dismiss this case because they believe there was misconduct.

Nope.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office.

They want to dismiss the case because they don’t believe calling up the country that just attacked us and secretly undermining the punishment on them, then lying about it, is any big thing.

Second, in the second-to-last release to Flynn of materials that aren’t new but that Billy Barr used to invent a reason to dismiss the prosecution, DOJ either betrayed breathtaking ignorance of the investigation into Flynn, or they lied. In turning over notes from Peter Strzok that clearly memorialize a January 5, 2017 meeting that has been the subject of public disclosure going back years (well before Flynn reallocuted his plea deal), DOJ claimed not to know their date.

The enclosed document was obtained and analyzed by USA EDMO during the course of its review. 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.

That professed uncertainty led the frothy right to claim that Joe Biden suggested Flynn be prosecuted for the Logan Act, which led to FBI reopening the investigation, which led to his prosecution. It was obvious the notes were from January 5, and I’ve since confirmed that. That DOJ claimed not to know the date of these notes is either evidence that they’re using this process to invent campaign dirt, or evidence that all the people reviewing this material have no grasp on the facts.

Which is to say, the judges have the very mistaken impression that DOJ withheld material they should have turned over, and that DOJ itself has suggested (in the less damning reading of their actions) to have no grasp of basic facts about the investigation into Flynn or even basic physics about time. No. Both claims are, at best, reason to further scrutinize this case.

Even ignoring the fact that DOJ has presented two different explanations for why they want to dismiss a case that they, months earlier, argued merited prison time, taking just the original motion to dismiss on its face value (ignoring the obvious lies in it), three months later, no one understands why DOJ moved to dismiss the case.

That’s important, because Acting Solicitor General Jeff Wall claims it would cause irreparable harm to the Executive Branch if DOJ had to answer any questions about why they dismissed the case.

That matters for two reasons. First, as the attorney representing Judge Emmet Sullivan, Beth Wilkinson, pointed out, what distinguishes this case from a Dick Cheney case that SCOTUS has said threatened the prerogatives of the Executive branch, DOJ has already proven willing to offer up reasons for their motion to dismiss, even if they are, partly, transparently false. DOJ is not claiming that they can’t respond to these questions, they’re offering up explanations unasked, and then objecting aggressively when asked question about those claims.

Indeed, Wall offered up a crazy new detail in this hearing: He implied that, in addition to believing that material lies are not the same for Flynn as other people and that secretly calling up the country that just attacked us to say, “no big deal,” is not alarming, there is also non-public information from other investigations that led Billy Barr to tank the Flynn prosecution.

The Attorney General 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 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.

[snip]

If all we had to do was show up and stand on our motion, no, we’ve already said that to the District Court.

Billy Barr has a secret. And that, Acting Solicitor General Jeff Wall suggested, is why a mere hearing on this motion to dismiss would irreparably harm DOJ (even while Wall alluded to the information without being asked).

Wow.

The revised explanation why DOJ can’t prosecute Flynn that Flynn prosecutor Jocelyn Ballantine has offered (one in which the Solicitor General’s Office has also participated) is that DOJ can’t “prosecute” Mike Flynn because DOJ has collected so much impeaching evidence against those who investigated Flynn that they can’t prove the case he has twice pled guilty to even though witnesses like KT McFarland and Mike Pence support their case.

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

That is, Ballantine says DOJ can’t sentence Flynn for his admitted crimes because they’ve also laid out how DOJ has trumped up investigations against all the people who investigated Flynn, and at least three of those people have credible legal claims against DOJ for those trumped up investigations.

That suggests one of several things.

It’s possible the secret Billy Barr doesn’t want to reveal deals with how 30-year intelligence veteran Mike Flynn sold his services to the government of Turkey while working for Trump, while trying to hide that fact, all without knowing why that’d be a problem. DOJ has not yet backed off the facts Flynn gave the grand jury (another basis for perjury charges against him, in addition to his plea allocutions, which the Circuit judges appeared to miss), and indeed has doubled down on the Bijan Kian investigation. So maybe DOJ is claiming that poor Mike Flynn was compromised by his non-professional partner out of naiveté?

Another possibility is that there are other secret investigations ongoing, whereby poor 30-year defense intelligence veteran General Flynn was targeted by Russian intelligence but was helpless to rebuff their entreaties and so must be forgiven for lying about all that.

A third possibility is that DOJ has been ordered by the President to make sure none of the people who protected him do prison time. Secret reason. Can’t be shared with judges. Checks out!

The most likely secret information Billy Barr is hiding — particularly given Wall’s reference to other investigations — is the Durham investigation, the possibility that John Durham will find something in his investigation into  Trump’s people where DOJ IG found nothing. That means either that Billy Barr took actions in May that John Durham has not charged in the interim three months. Or, that Billy Barr is trying to pre-empt Flynn’s prosecution believing — or expecting — that an investigation that has not yet completed will end up in criminal charges.

If that’s what’s happening, it would suggest that Barr has already decided what the outcome of the Durham investigation will be, prejudging its outcome and effectively neutering Durham, making his prosecutorial decision an afterthought.

Which is why I focused on DOJ’s false claim — possibly attributed to Jeffrey Jensen, the US Attorney Billy Barr directed to find reasons to blow up the Flynn prosecution while Durham continued to work — that Joe Biden raised the Logan Act before the FBI (and ODNI) raised it themselves. In that case, at least, Barr’s selected flunkies have proven themselves to either be willing to misrepresent evidence or to be painfully stupid about it. In that case, a US Attorney deputized into Billy Barr’s projects has admitted to either knowing fuckall or inventing facts for political purpose. That, by itself, raises questions about the presumption of regularity that Barr might otherwise be afforded.

DOJ claims they’ve given abundant reason why they wanted to dismiss the prosecution against Flynn, even though their reasons conflict with all precedent and the record that Bill Barr’s DOJ has established in this case.

But today we learned there’s another, secret, reason why Billy Barr wanted to dismiss the case against Flynn. Even while DOJ has made it clear they are either misrepresenting the record or unfamiliar with it.

Which is all the more reason why Judge Sullivan should have a hearing, and which likely explains why DOJ has claimed, multiple times now, that that would do irreparable harm to DOJ.

Sidney Powell Proves She (and Everyone Else, including Timothy Shea) Was Wrong about the Logan Act

Sidney Powell has released the next set of documents that Jeffrey Jensen has been serially feeding her and through her the frothy right.

They prove that the entire premise of DOJ’s Motion to Dismiss the Flynn prosecution — and everything Powell has been spewing for a year — is wrong.

That’s because the Timothy Shea Motion to Dismiss claims that FBI seized on the Logan Act as a reason — the sole reason — to extend the investigation into Mike Flynn.

The FBI had in their possession transcripts of the relevant calls. See Ex. 5 at 3; Ex. 13 at 3, FBI FD-302, Interview of Peter Strzok, July 19, 2017 (Date of Entry: Aug. 22, 2017). Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act, 18 U.S.C. § 953. See Ex. 3 at 2-3; Ex. 7 at 1-2; Ex. 8 at 1-5, FBI Emails RE: Logan Act Jan. 4, 2017.

Indeed, Shea’s memo claimed there was no criminal purpose to interview Flynn.

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.

But notes from Tashina Gauhar recording a January 25 meeting on the interview confirm what I had laid out: the purpose of the interview was to assess whether Flynn had a clandestine or agency relationship with Russia — that is, whether he was an Agent of Russia, which is a crime under 18 USC 951, the crime the original investigation into Flynn was predicated on and the crime the investigation continued to be predicated on, even as other potential crimes — including but not limited to the Logan Act — got added.

Importantly, Gauhar recorded the conclusion of that meeting, which adds context to another of the claims Powell has made for the last year. She described how from a CI perspective, FBI “did not think [Flynn was an] Agent, but need to verify.” From a criminal perspective, FBI was “not willing to say at this point, now.” And from a view of compromise, FBI discussed defensive briefings (though it’s not sure whether for the White House or Flynn).

In a draft timeline, someone translated this into the conclusion that FBI “did not believe General Flynn was acting as an agent of Russia,” but without the clear caveat that Gaushar recorded, that the FBI needed to verify whether that initial conclusion was true.

Viewed in context, this conclusion only reinforces the clear evidence that the FBI was investigating whether Flynn was a foreign agent (for Russia, in addition to what would become clear included Turkey), because this was the initial conclusion the FBI offered in a meeting the day after the interview reporting on their findings. But the entire record also makes it clear that FBI would continue to investigate that claim, whereupon they found more damning information against Flynn.

You may now dismiss every single claim about the Logan Act’s import in the investigation into Mike Flynn, as that was (transparently) all just gaslighting.

Furthermore, you can dismiss the claims about doctored 302s, because Gauhar’s notes directly map the final 302s, including the assertion that Flynn denied the substance of his calls both on Israel and sanctions.

In her filing misrepresenting what the notes say, Powell complains that the agents claimed Flynn first denied than admitted the number of calls; Gauhar only records the former, though it’s not even clear what the context is (that is, whether the question was about the number of calls on December 29 and 31, or the frequency of calls over the course of the Transition). In any case, that wasn’t a charged lie.

Gauhar even succinctly described, in real time, what the FBI had concluded: Flynn’s answers were false, but he appeared to believe them.

The FBI would develop, over time, additional reasons to know that Flynn had deliberately lied, most notably proof that the Transition team had discussed sanctions with him before the Kislyak call, making it clear Flynn had lied when he claimed he didn’t know about the sanctions at the time of his calls with Kislyak. Worse still, Flynn would ultimately admit that he created a cover email to hide what he had discussed in real time.

On January 25, it was reasonable to take Flynn’s demeanor and conclude he didn’t think he was lying. But not after you came across the record showing that he planned to cover up the calls as soon as they were made, even before the leaks gave reason for him to lie publicly.

Finally, Sidney Powell’s own filing totally undermines the government motion to dismiss in one other way. Powell asserts that the documents newly disclosed to her were “known to at least ten people at the highest levels” of DOJ and FBI.

These documents both corroborate information provided by others previously and provide new information known to at least ten people at the highest levels of the Department of Justice and the FBI.

Shea’s Motion to Dismiss was premised on a false claim that these facts weren’t known to the highest levels of DOJ. That insinuation has always been obviously false. But now Powell has made it clear she agrees. Which, if the DC Circuit reviews the Mandamus petition en banc (as a filing today staying the order suggests they’re likely to do), may be an important detail if Judge Emmet Sullivan ever gets to review how DOJ came to flip-flop on prison time for Flynn if they had all this information when they recommended prison time.

Sidney Powell’s Great Time Machine of Electoral Gaslighting

On January 4, 2017 at 9:43 AM, FBI lawyer Lisa Page emailed her boss, FBI General Counsel James Baker a citation for the Logan Act, referencing some prior discussion in the subject line: “Code section at question.”

Shortly thereafter, Peter Strzok emailed Page the text of the law, as well as a link to a Congressional Research Service report on the Logan Act. In it, he noted that the legislative history of the Logan Act did not deal with incoming officials (which might suggest that, contrary to all reporting, he was skeptical about its application). Page thanked Strzok, and then she sent the text of the law, but not the other discussion, to someone else.

Later that afternoon, Strzok started messaging FBI agents involved in the Flynn prosecution, asking them to hold open the Flynn investigation, noting that, “7th floor involved.”

The next day, representatives from the Intelligence Community briefed Obama on the Intelligence Community Assessment on Russian hacking. After the briefing, several people stayed behind to discuss the Flynn conversations with Sergey Kislyak. National Security Advisor Susan Rice described the meeting this way in a February 2018 letter sent to SJC.

… an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject.

Rice’s memo to the file, written before FBI had interviewed Mike Flynn about his calls with Sergey Kislyak, described that President Obama, Jim Comey, Deputy Attorney General Sally Yates, Joe Biden, and herself attended the meeting. She recorded that Obama first instructed FBI (as he apparently already had) to do things normally.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

Rice describes how Obama then asked whether there was any reason not to share information with Trump’s incoming team.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

Jim Comey responded with an ambivalent answer, stating that the FBI had not yet found Flynn to be sharing classified information, but observing that the sheer number of contacts between Kislyak and Flynn was abnormal. Comey stated that “potentially,” NSC should not share classified information with Flynn.

Director Comey affirmed that he is proceeding “by the book” as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that it could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied, “potentially.” He added he that he has not indication thus far that Flynn has passed classified information to Kislyak, but he noted that “the level of communication is unusual.”

On June 23, Mike Flynn prosecutor Jocelyn Ballantine sent Sidney Powell a “page of notes [] taken by former Deputy Assistant Director Peter Strzok.” She described that the page was undated, but that “we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.”

The notes record a meeting that — like the meeting Rice described — was attended by Obama, Jim Comey, Sally Yates, Joe Biden, and Susan Rice.

At the meeting, Obama told Comey to, “Make sure you [look at?] things — have the right people on it,” an instruction telling the FBI to conduct the investigation normally. Then, Obama asked, “Is there anything I shouldn’t be telling transition team?” Comey responded, though his response is unclear: “Flynn > Kislyak calls but appear legit.” Certainly, however, Comey’s response involves some kind of comment on Flynn’s calls with Kislyak. Parts of the discussion before and after this exchange are redacted, with no redaction marks explaining the basis for doing so (though a Bates stamp makes it clear that Mueller’s team had this document, so it is in no way “new” to DOJ).

When Sidney Powell released the notes, she asserted that the notes were, “believed to be of January 4,” which is not what DOJ told her (they said the notes could be January 3, 4, or 5).

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.

Powell presents this meeting as new news, even though we’ve known about the meeting since Chuck Grassley made a stink about it to help her client in early 2018 (ten months before her client reallocuted his guilty plea). She did so, in part, to call attention to the comment from Joe Biden apparently raising the Logan Act, then repeated, falsely, that the investigation that had been since August 2016, was then in early January, and would be during his January 24, 2017 interview significantly focused on 18 USC 951, was only investigating the Logan Act.

According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act. That became an admitted pretext to investigate General Flynn

According to Powell’s narrative, then, Biden mentioned the Logan Act on January 4, which led the FBI to start investigating it the next morning. According to Powell’s narrative, then, Biden is responsible for what she falsely claims was the pretext under which her client was interviewed.

To believe that, however, you’d have to believe there were two meetings, both with the same attendees, in both of which Obama first directed the FBI Director to conduct the Flynn investigation normally, and then asked whether he should be cautious about sharing sensitive information with the Trump team. In both meetings, you’d have to believe, Comey provided an ambivalent answer. You’d have to further believe that such an exchange was so concerning to Susan Rice that she would document it on her last day in office, but document only the second instance of such an exchange, not the first one.

Now, perhaps there’s some reason Jeffrey Jensen and Jocelyn Ballantine profess uncertainty about when Strzok took these notes. Or perhaps DOJ, which has politicized this process so much already, would like to claim uncertainty so as to suggest that Joe Biden raised the Logan Act before the FBI did, while they’re also falsely claiming that Flynn was interviewed only for the Logan Act.

But the simplest explanation for these notes is that the guy who played a key role in investigating the Russian side of the operation seconded Comey for the ICA briefing (he had done at least one earlier briefing at the White House, in September 2016), and then, when everyone stayed behind to address Flynn — an investigation Strzok was in the management chain on — he remained as Comey’s second and took notes of the same exchange that Susan Rice memorialized 15 days later. [See below: Strzok was not at the meeting in question, which would suggest these notes came even longer after the Logan Act had been raised at FBI.]

Which would likewise mean that DOJ, on the eve of a hearing on how DOJ is politicizing everything, fed Sidney Powell with a document she could misrepresent (as she has virtually everything that DOJ has fed her), and have numerous Republicans HJC members similarly misrepresent, all to turn this into a campaign issue.

Ah, well. Now that DOJ has declassified comments (almost certainly covered by Executive Privilege) in which Biden said he had seen nothing like what Flynn had done in the 10 years he was on the Senate Intelligence Committee (Biden was on the Committee during Reagan’s crimes), reporters can ask him how unprecedented it is for the incoming National Security Advisor to be wooed by a hostile power’s Ambassador during the transition.

Update: Glenn Kessler says Strzok’s lawyer says Stzrok wasn’t at this meeting, which makes the conspiracy around it even crazier.

The Eight Investigations into the Russian Investigation Have Already Lasted 47% Longer than the Investigation Itself

Before the holiday weekend, FBI Director Christopher Wray announced an “after-action review of the Michael Flynn investigation.” Thus far, that makes the eighth known investigation into the Russian investigation — and every known investigation included at least a small component relating to Mike Flynn. The investigations into the Russian investigation, which collectively have lasted around 2,064 days, have gone on 47% longer than the investigation itself.

This table lists all the known investigations pertaining to the Russian investigation, save those into people involved in the Carter Page FISA applications. All have at least a component touching on the investigation into Mike Flynn.

This table assumes the Russian investigation is ongoing, based off the redactions in the Roger Stone warrant releases and FOIAed 302s, even though Mueller closed up shop a year ago.

At least three of the investigations in this table pertain to allegations first seeded with Sara Carter and then to various Congressional staffers that Andrew McCabe said, “Fuck Flynn, and I fucking hate Trump.” McCabe was actually considered the victim of the first investigation, which was conducted by the FBI’s Inspection Division, the same entity that will conduct the investigation announced last week. While the full timing of that investigation is not known, Strzok gave a statement to the Inspection Division on July 26, 2017. That Inspection Division investigation led into the investigation into McCabe himself, though that investigation focused on his confirmation of the investigation into the Clinton Foundation (and so is not counted in this table).

Mike Flynn kept raising the “Fuck Flynn” allegations with prosecutors, leading the government to review the allegations two more times, including an October 25, 2018 interview with Lisa Page where she was also asked about her role in editing the Flynn 302s.

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

The DOJ IG investigation into whether Jim Comey violated policy or the law by bringing home his CYA memos started in July 2017 and continued through last summer. Obviously, one of those memos recorded Trump asking Comey to let the Flynn investigation go.

The table above does not include the DOJ IG Report on the Midyear Exam investigation (into Hillary), even though that was the first to examine the Lisa Page and Peter Strzok texts. For timing purposes, only the DOJ IG investigation into Carter Page’s FISA applications investigation counts the investigation into Page and Strzok. That investigation also considered the treatment of Flynn’s presence in the first intelligence briefing for Trump.

Finally, there’s the John Durham investigation — which Bill Barr’s top aides were scoping at least as early as April 12 of last year. There is no public scope document. Similarly, there’s no public scope document of the Jeffrey Jensen review, which Barr launched to create some excuse to move to dismiss the Flynn prosecution after prosecutors recommended (and all of DOJ approved) prison time. Wray’s statement announcing the FBI’s own investigation into the Flynn investigation made clear that the Jensen investigation remains ongoing.

FBI Director Christopher Wray today ordered the Bureau’s Inspection Division to conduct an after-action review of the Michael Flynn investigation.  The after-action review will have a two-fold purpose:  (1) evaluate the relevant facts related to the FBI’s role in the Flynn investigation and determine whether any current employees engaged in misconduct, and (2)  evaluate any FBI policies, procedures, or controls implicated by the Flynn investigation and identify any improvements that might be warranted.

The after-action review will complement the already substantial assistance the FBI has been providing to U.S. Attorney Jeff Jensen in connection with his work on the Flynn case.  Under Director Wray’s leadership, the FBI has been fully transparent and cooperative with Mr. Jensen, and the FBI’s help has included providing special agents to assist Mr. Jensen in the fact-finding process.  Although the FBI does not have the prosecutorial authority to bring a criminal case, the Inspection Division can and will evaluate whether any current on-board employees engaged in actions that might warrant disciplinary measures.  As for former employees, the FBI does not have the ability to take any disciplinary action.

Director Wray authorized this additional level of review now that the Department of Justice, through Mr. Jensen’s work, has developed sufficient information to determine how to proceed in the Flynn case.  However, Mr. Jensen’s work will continue to take priority, and the Director has further ordered the Inspection Division to coordinate closely with Mr. Jensen and ensure that the review does not interfere with or impede his efforts.  Relatedly, for purposes of ensuring investigative continuity across these related matters, the Inspection Division will also utilize to the extent practicable the special agents that the FBI previously assigned to assist Mr. Jensen.

In Bill Barr’s interview with Catherine Herridge, he discussed the Jensen review in terms of criminal behavior, which would mean Jensen and Durham are both considering criminal charges for some of the same activities — activities that had been investigated six times already.

Based on the evidence that you have seen, did senior FBI officials conspire to throw out the national security adviser?

Well, as I said, this is a particular episode. And it has some troubling features to it, as we’ve discussed. But I think, you know, that’s a question that really has to wait an analysis of all the different episodes that occurred through the summer of 2016 and the first several months of President Trump’s administration.

What are the consequences for these individuals?

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. And I’m gonna wait till all the evidence is, and I get their recommendations as to what they found and how serious it is.

But if, you know, if we were to find wrongdoing, in the sense of any criminal act, you know, obviously we would, we would follow through on that. But, again, you know, just because something may even stink to high heaven and be, you know, appear everyone to be bad we still have to apply the right standard and be convinced that there’s a violation of a criminal statute. And that we can prove it beyond a reasonable doubt. The same standard applies to everybody.

This is one reason why DOJ’s claim to have found “new” information justifying their flip-flop on Flynn’s prosecution would be so absurd if DOJ weren’t making the claim (with no documentation) in court. Different entities in DOJ had already investigated circumstances surrounding the Flynn investigation at least seven times before Jensen came in and did it again.

But I guess Barr is going to keep investigating until someone comes up with the result he demands.

The Legal Posture of the Flynn Case: Emmet Sullivan Has Up to Six Pending Decisions, Not One

Partly as a public service (the vast majority of people who are commenting on DOJ’s actions seem to be unfamiliar with the docket) and partly to set up a post I will do attempting to explain why Billy Barr did something as aggressive as he did last week, I wanted to lay out where all the moving pieces in Mike Flynn’s case stand.

Flynn blows up a probation sentencing with mixed claims about his prosecution

Prosecutors first started moving towards sentencing Flynn in June 2018; it’s clear the investigation was still ongoing but they asked to have Flynn’s presentencing report filed so they could move quickly after that. We now know that this was days after Flynn testified to the grand jury in the Turkish influence peddling case. There were reports Flynn was anxious to be sentenced so he could start earning a living again and in this time period, he registered to start influence peddling again, before his lawyers got him to claim that was just a mistake. On September 17, 2018, prosecutors said they were ready to move towards sentencing and asked for a date starting in November, after the midterms. The hearing ultimately got scheduled for December 18, 2018, after Jeff Sessions had been fired and Trump had announced he would nominate Bill Barr to be Attorney General (he didn’t actually send the nomination to the Senate until January 3, 2019, for reasons that likely have to do with Matt Whitaker’s Vacancy Reform Act status).

At that point, prosecutors recommended a sentence within guidelines and a downward departure, which is consistent with probation. Had Flynn left well enough alone, he would have gotten a year of probation and he’d be free and clear of the justice system by now.

He didn’t leave well enough alone. He got cute, claiming to accept guilt but at the same time floating the first of his complaints about being perjury trapped by mean old FBI agents. In response, not only did Judge Emmet Sullivan release the documents that revealed Flynn lies were worse than known, but he put Flynn under oath, both to reallocute his guilty plea, but also to swear that he didn’t think the circumstances of his interview made him any less guilty. After Sullivan made it clear that if he sentenced Flynn that day, he’d give him prison time, Flynn decided to wait until he was done cooperating after testifying at his partner Bijan Kian’s trial.

On February 14, 2019, the day Billy Barr was confirmed, Flynn sent a tweet suggesting “the eagle had landed” to Matt Gaetz, whose assaults on the Mueller investigation he had previously cheered in 2018.

After Barr was confirmed, Mueller quickly moved to write up his report, which was completed on March 22 and released on April 19, 2019. Mueller did not close his office, however, until May 29, when he gave a hasty press conference even as the final outstanding piece of evidence — Roger Stone aide, Andrew Miller’s testimony — came in.

When Mueller testified before Congress two months later on July 24, the most newsworthy thing he said was that FBI was still investigating the counterintelligence impact of Mike Flynn’s lies.

[Congressman Raja] KRISHNAMOORTHI: For example, you successfully charged former National Security Advisor Michael Flynn of lying to federal agents about this conversations with Russian officials, correct?

MUELLER: Correct.

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.

Flynn replaces Covington for Powell and Blows Up the Bijan Kian Trial

Exactly a week later, Flynn replaced his competent attorney, Rob Kelner, with Fox News firebreather, Sidney Powell, who moved immediately to collaborate with Bill Barr to undermine his prosecution.

In late June, Flynn started reneging on the testimony he provided in the Kian trial. As a result, the government tried to change their plan for the prosecution, attempting to admit Flynn’s prior testimony as a co-conspriator of unregistered foreign agents (who were charged under 18 USC 951, not just as lobbyists). Flynn intervened to fight that (not least, because it would completely doom any effort to avoid prison), blaming Kelner for making him submit a false FARA declaration even while submitting evidence actually showing that Flynn misled Kelner during the filing process. The move predictably helped Kian, as those events were key in Judge Anthony Trenga’s decision to throw out his conviction (which is currently being appealed, but which I expect DOJ to try to blow up in a further attempt to protect Flynn), but it also started a series of claims from Flynn that directly conflicted with his past sworn statements.

Sullivan, noting what was happening over in EDVA, asked the sides to weigh in, which is how Flynn’s team first started making claims in Sullivan’s court that the government, not Flynn, had reneged, all while submitting evidence showing the contrary.

Which is to say, even before Powell took a single action in the Flynn case, Flynn had created further exposure for himself.

As part of a Brady motion, Flynn moves to dismiss the prosecution

The first legal step Sidney Powell took was to submit a motion to compel Brady material. The first filing, on August 30, made no specific request (though did demand more classified information on behalf of Flynn, who of course had confessed to secretly working for a foreign government during the campaign). Powell also asked for more time. Days after submitting that, however, Powell and her colleagues demanded security clearances. On September 11, a more detailed motion was unsealed. That motion included a long list of demands, many based on wild conspiracy theories; the list largely tracked the one Powell had sent to Barr three months earlier, though she generally moderated her language and added a number of requests pertaining to the Turkish investigation that weren’t included in her Barr letter.

Many of these items are among those the government relied on in its motion to dismiss last week, proving the documents were in no way “new.”

Almost two weeks later, Flynn cleaned up some problems in the original request.

On October 1, prosecutors provided a timeline showing they had already produced everything they believed Flynn was entitled to. The same day, they responded to the Brady motion with a detailed response to each of Flynn’s demands, as well as two exhibits showing that this was part of a larger effort to undermine the Mueller investigation (which I addressed here).

On October 15, Flynn demanded evidence from Joseph Mifsud’s phone — which further established Sidney Powell didn’t care about whether her demands related to her client, but also that she had an open channel of communication with Bill Barr about his Durham investigation.

In Powell’s reply to the government, she included a new demand: that Judge Sullivan dismiss the case for misconduct based on precisely the claims made by DOJ last week.

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

[snip]

The FBI had no factual or legal basis for a criminal investigation, nor did they have a valid basis for a counter-intelligence investigation against an American citizen, and they all knew it. 11 Exs. 5, 6. The evidence the defense requests will eviscerate any factual basis for the plea and reveal conduct so outrageous—if there is not enough already—to mandate dismissal of this prosecution for egregious government misconduct.

[snip]

In its relentless pursuit of Mr. Flynn, the government became the architect of an injustice so egregious it is “repugnant to the American criminal system.” Russell, 411 U.S. at 428 (citations omitted). For these reasons and those in our original Motion and Brief in Support, this Court should compel the government to produce the evidence the defense requests in its full, unredacted form. Given the clear and convincing evidence herein, this Court should issue an order to show cause why the prosecutors should not be held in contempt; and should dismiss the entire prosecution for outrageous government misconduct.

The government noted Powell’s new arguments and got permission to submit a surreply, in which they pointed out that Flynn was already in possession of the information he was using to argue for dismissal when he pled guilty the second time.

Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant. See Hearing Transcript at 8-10, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). The defendant further affirmed, under oath, that he wished to proceed to sentencing because he was guilty of making false statements to the FBI. See id. at 16.

[snip]

Nor did law enforcement officials engage in “outrageous” conduct during the criminal investigation and prosecution of the defendant. On January 24, 2017, when the defendant lied in his interview, the FBI was engaged in a legitimate and significant 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. The defendant was not “ambushed” at the interview, and the interviewing agents certainly did not engage in “outrageous” conduct that undermines the fact that he lied. Reply at 1, 7. The documents produced by the government in discovery show that the FBI asked the defendant for permission to conduct the interview, informed the defendant that the questions would concern his “contacts with the Russian Ambassador to the United States,” interviewed the defendant in his own office, and afforded him multiple opportunities to correct his false statements by revisiting key questions. See, e.g., Memorandum of Andrew McCabe dated January 24, 2017 (Doc. 56-1) (“McCabe Memo”); Strzok 302.

[snip]

For all of the above reasons, it is no surprise that with the same set of facts, the defendant and his prior counsel previously represented to this Court that the circumstances of the interview had no impact on his guilt, or guilty plea. On December 18, 2018, when the Court asked the defendant if he wished to “challenge the circumstances on which you were interviewed by the FBI,” he responded, under oath, “No, Your Honor.” 12/18/2018 Hearing Tr. at 8.10 The Court then asked the defendant if he understood that “by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed,” to which the defendant answered, “Yes, Your Honor.” Id. And when the Court queried whether the defendant wanted an opportunity to withdraw his plea because one of the interviewing agents had been investigated for misconduct, the defendant stated “I do not, Your Honor.” Id. at 9. His counsel likewise represented to the Court that their client was not “entrapped by the FBI,” and that they did not contend “any misconduct by a member of the FBI raises any degree of doubt that Mr. Flynn intentionally lied to the FBI.” Id. at 11-12.

In a sur-surreply, Powell tried to back off having demanded that Sullivan dismiss the case, saying that her past arguments and the government’s response aren’t her real motion to dismiss.

In conclusion, yes, the government engaged in conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct. See United States v. Russell, 411 U.S. 423, 428 (1973). However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an order compelling the government to produce the additional Brady evidence he has requested—in full and unredacted form—and an order to show cause why the government should not be held in contempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice. Mr. Flynn is entitled to discovery of the materials he has requested in these motions and briefs that will help him support such a motion.

In Emmet Sullivan’s meticulous 92-page order issued in December denying Flynn’s Brady request, however, he addressed the request for dismissal, specifically distinguishing this case from that of Ted Stevens.

Mr. Flynn’s requested relief is dismissal of this case. See Def.’s Reply, ECF No. 133 at 36; see also Def.’s Sur-Surreply, ECF No. 135 at 17. He seeks dismissal of the charges against him and the entire prosecution for government misconduct. E.g., Def.’s Reply, ECF No. 133 at 7, 23 n.15, 36; Def.’s SurSurreply, ECF No. 135 at 17. The government disagrees. See Gov’t’s Surreply, ECF No. 132 at 12-15. This case is not United States v. Theodore F. Stevens, Criminal Action No. 08–231(EGS), the case that Mr. Flynn relies on throughout his briefing. In that case, the Court granted the government’s motion to dismiss, and the government admitted that it had committed Brady violations and made misrepresentations to the Court. In re Special Proceedings, 825 F. Supp. 2d 203, 204 (D.D.C. 2011) (Sullivan, J.). Even if Mr. Flynn established a Brady violation in this case, dismissal would be unwarranted because “[t]he remedy for a Brady violation is retrial, not dismissal.” United States v. Borda, 941 F. Supp. 2d 16, 19 n.1 (D.D.C. 2013) (citing Pettiford, 627 F.3d at 1228). “[D]ismissal is appropriate only as a last resort, where no other remedy would cure prejudice against a defendant.” Pasha, 797 F.3d at 1139. [my emphasis]

As the government noted when they responded to Flynn’s request for dismissal, he already had all the evidence on which he premised that demand when he pled guilty a second time in December 2018.

In a sentencing memo, the government accounts for Flynn’s failed cooperation and refusal to admit guilt

In the wake of Sullivan’s order, the parties moved towards sentencing in January. The government got two continuances before submitting their revised motion, one in December and another in January, to get all required approvals for their sentencing memo. That means prosecutors on the case went to great lengths to approve their recommendation for prison time.

The factors enunciated in Section 3553(a) all favor the imposition of a sentence within the Guidelines range. 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.

I’ll return to that memo, but the key point is that Judge Sullivan specifically gave Bill Barr’s DOJ time to ensure that the chain of command approved their supplemental sentencing memo.

Before Flynn responded to that revised recommendation, they asked for a continuance to allow them to withdraw Flynn’s guilty plea, specifically citing prosecutors’ recommendation for prison time.

Because Flynn submitted his supplemental sentencing memo after beginning the process to withdraw his guilty plea, they were stuck arguing in it both that Flynn should get credit for admitting guilty but also arguing that he was not guilty.

The government reply, submitted as Barr started the process to replace Jessie Liu, is the one that alerted everyone to the shenanigans that Barr was up to. Whereas the initial supplemental motion — which had been delayed twice to get approval — recommended prison time, this one reverted back to supporting probation, the position the government had adopted before Flynn had reneged on both his cooperation and his guilty.

Flynn blames his guilty pleas on his Covington lawyers

As noted, Flynn cited the recommendation for prison time in asking to withdraw his guilty plea(s). Flynn based his request to withdraw his guilty plea on a claim that his very competent Covington lawyers were both conflicted and incompetent. He then submitted what was originally called a supplement — which made no new arguments — which they subsequently corrected to note,

1 This is not Mr. Flynn’s “Supplemental Motion to Withdraw for Alternative Additional Reasons” currently due to be filed on January 22, 2020, for which we have requested two additional days to complete and file.

In response to a second request for more time on its filings, Judge Sullivan issued an order that reflects where he’ll likely go now: he raised the prospect of an evidentiary hearing to determine whether there is good cause to set aside his guilty plea.

Mr. Flynn’s supplemental motion and the government’s response shall address the following: (1) the standard in this Circuit for a defendant seeking to withdraw a guilty plea before sentencing; and (2) the need for an evidentiary hearing where the parties would present all testimony and evidence concerning the issue of whether Mr. Flynn can show that there is good cause to set aside his guilty pleas, see United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995), including testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, to show any “fair and just reason” for this Court to grant his motion to withdraw, Fed. R. Crim. P. 11(d).

From that moment forward, it became clear that Sullivan would put Flynn back under oath.

On February 9, prosecutors made things still worse, by asking Sullivan to waive Covington’s attorney-client privilege with respect to Flynn so they could assist prosecutors in rebutting his claims that they were incompetent. From that point forward, it became clear that not only Flynn, but his very credible former lawyers, would be testifying about the prosecution.

On January 29, just two days before Bill Barr would replace Jessie Liu with his flunky and around the same time he ordered Jeffrey Jensen to review the Flynn prosecution, Flynn submitted what he billed as his real supplemental motion to withdraw, doubling down on the claim that his former lawyers were responsible for his guilty pleas, he wasn’t.

As I noted at the time, the motions in conjunction created new risks for Flynn: in particular, his motion to withdraw included a sworn declaration that conflicted with three past sworn statements from him:

  • 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.

To make things worse, as often happens with exhibits Sidney Powell introduces, the actual record undermined claims Flynn made. For example, Flynn included a document that showed Covington gave him more warnings about conflict than he admitted to in his declaration, thereby making it clear his sworn declaration didn’t match the record accompanying it.

Flynn repeats his claim he was railroaded

That same day Flynn submitted his most substantive motion to withdraw his guilty plea, January 29, he also submitted a motion to dismiss his prosecution. It was basically a repeat of the request made months earlier as part of the Brady request, pointing to irregularities in the Carter Page FISA application as the primary justification to make the motion anew.

On February 12, prosecutors responded to that motion pointing out there was nothing new here. Flynn’s response was repetitive and included a misleading timeline full of claims that contradict claims they’ve made elsewhere. The motion ignored that Flynn waived these complaints when he pled guilty the second time.

The government repeatedly claims that Mr. Flynn waived his right to constitutional protections when he pled guilty. ECF No. 169 at n.3. But, Mr. Flynn’s plea cannot stand, and the government cannot use it as both a shield for its misconduct and a sword to sentence Mr. Flynn. His plea was infected with constitutional error which rendered it neither knowing nor voluntary and in violation of Mr. Flynn’s Sixth Amendment rights. See ECF No. 162-2. As Mr. Flynn argued in his Motion to Withdraw Plea, ECF No. 151, even if it were a validly contracted plea, the government breached the contract the moment Mr. Van Grack filed the government’s supplemental sentencing memo which withdrew its motion for downward departure and its recommendation of probation. See ECF No. 150 at 3 (“In addition to asking the Court to credit the defendant with providing substantial assistance, the government recommended that the defendant receive credit for accepting responsibility. . . . [T]he government now withdraws both requests.”).

As prosecutors prepare their Covington argument, Bill Barr prepared his “new” information

As noted, on February 9, prosecutors took steps to be able to prove that Covington, in fact, gave Flynn exceptionally good advice. They asked for a series of delays while they did that. According to the schedule set by Judge Sullivan, prosecutors would have proposed a briefing schedule to lay all that out last Friday, possibly in a motion including some of the details from the 600 pages of evidence obtained from Covington that (the record already shows) would substantiate that Flynn gave them incorrect information for his FARA filing and repeatedly brushed off warnings about conflict.

During the delay, Covington did find 6,000 new records on top of the 600,000 documents they had already provided. Given the Bates numbers of documents filed last week, there’s no reason to believe those exhibits were included in these newly discovered documents.

As that was happening, prosecutor Jocelyn Ballantine handed over, drip-by-drip, the documents that Jeffrey Jensen “analyzed.”

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. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

None of this discovery correspondence said the documents were new to prosecutors, only that Jensen had reviewed them. They were, nevertheless, the documents that Timothy Shea claimed were “new” as his basis for flip-flopping on DOJ’s position on the case.

Emmet Sullivan has six decisions to make, not just one

Many, perhaps most, people who’ve commented in the last week have noted that Emmet Sullivan has the prerogative whether to accept DOJ’s motion or not. It’s true he has that authority. But he actually has up to six different decisions pending, as follows:

  1. Whether to accept or reject DOJ’s motion to dismiss
  2. If Sullivan accepts DOJ’s motion to dismiss, whether he does so with or without prejudice
  3. Whether to accept or reject Flynn’s motion to withdraw his pending withdraw of guilty plea, motion to dismiss, and waiver of privilege for Covington (to which DOJ has consented)
  4. Whether to hold an evidentiary hearing or ask for briefing on Flynn’s motion to withdraw
  5. Whether to accept or reject Flynn’s motion to dismiss his prosecution
  6. Whether and if so how to sentence Flynn based on fully briefed sentencing memoranda

Sullivan would not get to most of these without, first, deciding what to do about DOJ’s motion to dismiss. And if he rejected DOJ’s motion to dismiss, he would obviously reject Flynn’s motion to dismiss, just like he already rejected that argument. Though if Sullivan does reject DOJ’s motion to dismiss, sentencing is fully briefed and he could move immediately to sentencing.

Moreover, Flynn’s multiple conflicting sworn statements are before this court whether or not Sullivan rejects DOJ’s motion to dismiss. And he could reach that decision — or at least order briefing on the Covington evidence Flynn clearly wants to keep hidden — without (or before) weighing in on DOJ’s motion to dismiss.

Which is likely one of the reasons Sullivan is taking his time before he issues the next scheduling order.

Update: I should have put this quote on behalf of Chris Wray in several posts before this one. But basically, the FBI has already put it into the public record that the stuff DOJ claimed was “new” last week had already been reviewed by DOJ IG and John Durham’s inquiry.

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

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.

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.

As Predicted, Billy Barr Bolloxed the Mike Flynn Prosecution

In advance of a status report due tomorrow, Brandon Van Grack withdrew from the Mike Flynn case.

The AP reports that DOJ has filed paperwork to withdraw from the case, based on findings from Jeffrey Jensen’s review.

In court documents being filed Thursday, the Justice Department said it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.” The documents were obtained by The Associated Press.

The Justice Department said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview on January 24, 2017 was “conducted without any legitimate investigative basis.”

While Van Grack has withdrawn from all Flynn-related cases before Emmet Sullivan, he has not yet withdrawn from two other open cases he’s on, and he signed his withdrawal FARA Chief.

As noted in this post, Sullivan has discretion over whether to accept this withdrawal.

Update: Here’s the motion to withdraw. It is easily rebuttable — we’ll see whether Sullivan does so on his own.

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.