Posts

DOJ Hid Material Comments about Brandon Van Grack from Judge Sullivan in the William Barnett 302

The redactions on the 302 of William Barnett — the pro-Trump FBI Agent who recently gave an interview riddled with contradictions that Republicans have tried to use to undermine the Mike Flynn case — look like they were done by a five year old with finger paint.

It appears there were at least two and possibly three passes on redactions. There are redactions with rounded edges that appear to redact information that is actually classified. There may be more substantive redactions done of full sentences, including a passage marked to be “pending unsealing” by the court. There’s information on the investigation into Mike Flynn’s secret work for Turkey that is redacted, too, which is problematic, given that Judge Emmet Sullivan asked about that investigation into Flynn in Tuesday’s hearing. It’s clear from the unredacted bits of the 302 that Barnett had fewer problems, if any, with that investigation than he did with Flynn’s cover-up of his calls to Sergey Kislyak, so by redacting those discussions, the FBI is hiding Barnett making positive comments about part of the investigation into Flynn.

Then there’s a bunch of stuff — that includes names but also material that appears to be unflattering to General Flynn — that appears to have been redacted with block redactions after the fact, such as this redaction that seems to fade away to nowhere.

The redactions of names are a mess too, with irregular box redactions and in a few places, different typeface sizes.

That’s mostly aesthetics. But it suggests that — in spite of an FBI declassification stamp applied on September 24 — some or all of these redactions weren’t done by the people who normally do such things.

It’s the treatment of names where things delve into legally suspect area. The name of Barnett, Peter Strzok, and Andrew McCabe are not redacted. The names of other FBI and DOJ personnel generally are, though some have labels so you can follow repeated discussions of those people.

It’s in the treatment of Robert Mueller’s lawyers where things get inexcusable.

DOJ has a general rule that all Mueller AUSAs are public (as seen in the Mueller 302s released under FOIA, as well as phone records FOIAed by Judicial Watch), but all FBI personnel are not. Here, however, FBI left the name of some Mueller prosecutors unredacted, and redacted others. The unredacted names are those the GOP would like to spin as biased (including with an attack on Jeannie Rhee which actually shows Barnett being an abusive dick simply because Rhee tried to do her job):

Meanwhile there are at least two Mueller prosecutors whose names are redacted:

The FBI might be excusing this disparate treatment by making a distinction between lawyers who’ve left DOJ and those who haven’t.

Except that raises questions about whether there are unmarked references to Zainab Ahmad who, as the second prosecutor on the Flynn case, should show up in any interview of Barnett’s work with Mueller, but who has also left DOJ (and so would be unredacted if that’s the rule purportedly adopted here).

I have made several inquiries at DOJ for an explanation but gotten no response. But we know that someone at DOJ did these redactions, because Jocelyn Ballantine shared an unredacted copy of the 302 with Flynn’s lawyers, explaining that DOJ would submit the redacted copy to the docket themselves. Ken Kohl, who (multiple people have described) has a history of problematic actions, is the one who actually signed the filing uploading the 302 to the docket.

If I were Ballatine, I’d think very seriously about whether I wanted to remain silent after having witnessed how this 302 was submitted.

The result of redacting Van Grack’s name is that it hides from Judge Sullivan (and Amicus John Gleeson) many complimentary things that Barnett had to say about Van Grack:

DOJ’s star witness purportedly backing its claim that the investigation into Mike Flynn was abusive had a number of good things to say about the prosecutor that purportedly committed some of the abuse. Significantly, DOJ’s star witness, Barnett, claims that Van Grack agreed with Barnett in viewing KT McFarland’s lies in the least incriminating light.

And DOJ redacted Van Grack’s name, thereby obscuring that.

Sidney Powell made a number of allegations about Van Grack on Tuesday, including that Van Grack demanded Mike Flynn lie in the Bijan Kian case, something sharply at odds with Barnett’s claim that Van Grack interpreted McFarland’s answers in the least damning light. And Judge Sullivan asked about the significance of Van Grack’s withdrawal from the case Tuesday, something DOJ dismissed as irrelevant even while they were hiding material details about Van Grack.

So Brandon Van Grack’s conduct is central to the matter before Judge Sullivan. And DOJ is withholding favorable information about Van Grack by redacting his name in this 302, even while relying on the 302 for what DOJ claims is damning information elsewhere.

It would be clear legal misconduct to hide that information, effectively hiding evidence that debunks DOJ’s claims of abuse with a treatment of redactions that is plainly inconsistent with past DOJ practice (including on the release of a 302 discussed in Barnett’s own 302).

And yet that’s what DOJ has done.

With a Charitable Description that Bill Barnett Was “Confus[ed]” Jim Comey Undercuts the Agent’s Entire Interview

Long into yesterday’s Jim Comey hearing, Lindsey Graham suddenly called a break. I got the feeling, watching him, that he had finally figured out the hearing was having the opposite effect as he had intended. Jim Comey was repeatedly explaining the import of the Russian investigation, distinguishing the Carter Page application from the rest of the investigation, and Democrats were reviewing all the things the Committee could have been doing rather than chasing three year old allegations.

After the break, the remaining Senators (John Kennedy and Marsha Blackburn) and Lindsey Graham seemed intent on dirtying up Comey a bit, even if required discussing stuff that had nothing to do with Carter Page.

Still, this exchange between Comey and Lindsey also didn’t seem to go the way Lindsey wanted. In it, Jim Comey undercut the credibility of the William Barnett 302 in plenty of time for John Gleeson or Emmet Sullivan’s clerks to use it in the Flynn motion to dismiss opinion. First, Lindsey asked Comey if he was aware that Barnett didn’t believe Flynn committed a crime.

Lindsey Graham: Are you aware that Mr. Barnett, who is the lead investigator of the Flynn case recently said that he did not believe there was a crime involving General Flynn?

Jim Comey: I read his 302 and I think it does say he thought that before January 5, or before Flynn was interviewed.

Comey answered that that was true before January 24. Implicit in Comey’s answer (and something that Gleeson pointed out explicitly in Tuesday’s hearing) is that when Barnett said he “believed FLYNN lied in the interview to save his job,” Barnett was confirming that Flynn had committed a crime, lying to the FBI.

Lindsey ignored that though, going on to misstate Barnett’s testimony in a significant way.

Lindsey: How normal is it for the lead investigator to believe that the person he’s investigating didn’t commit a crime, and went so far as to say he thought the whole team was out to get Trump. Is that a normal thing in the FBI? Is that something the court should consider as to whether or not this is a legitimate prosecution?

Barnett did not say “the whole team was out to get Trump.” He said, “there was a ‘get TRUMP’ attitude by some at the SCO,” and specifically excluded Brandon Van Grack from that (though DOJ hid that by redacting Van Grack’s name). He then said “it was not necessarily ‘get TRUMP’ but more the conviction there was ‘something criminal there.'” Barnett’s most significant claims to substantiate this involve a real lead Weissmann chased down (involving Manafort and Tom Barrack), and a description of himself being a dick to Jeannie Rhee because she was doing her job; both involve people he didn’t work with closely.

In response to Lindsey’s observation that Barnett repeatedly stated — in response to Jeffrey Jensen’s cues — that he didn’t think there was evidence of a crime against Flynn, Comey pointed out the fundamental problem with the entire 302. This wasn’t a criminal investigation. It was a counterintelligence investigation.

Comey: I think Mr. Barnett was confusing the nature of the investigation which is a little bit concerning, if he was working on it. It was a counterintelligence investigation, not a criminal investi–

Lindsey: No, see, here’s the point, Mr. Comey. You set Flynn up to get prosecuted. This was a counterintelligence investigation. And there was no there there. This man was the incoming National Security Advisor, he had every reason in the world to be talking to the Russians about changing policy, but this whole rogue thing, setting up an interview in the White House, going around normal procedures bothered a lot of people.

After interrupting Jim Comey as he was pointing out how Barnett’s own 302 discredits every one of his claims [even ignoring that Barnett claimed to be ignorant of four known pieces of evidence], Lindsey nevertheless repeats the point (and then goes on to misread some texts about liability insurance that Barnett himself had debunked in his 302).

This was a counterintelligence investigation.

The fact that Jeffrey Jensen kept asking about crimes is proof that Jensen wants the investigation to be something other than virtually every witness, except Barnett, has testified both contemporaneously, and since. Even answering the question about what crimes he saw seems to suggest that Barnett didn’t understand what he was doing, didn’t understand that he was conducting a counterintelligence investigation.

Only, that’s not what Bill Barnett said in January 2017, just weeks before the interview, when he drafted a closing communication for the Flynn investigation.

The FBI opened captioned case based on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.

Contrary to Comey’s least-damning interpretation, Bill Barnett wasn’t confusing whether this was a criminal investigation or a counterintelligence one. He noted in January 2017 that Flynn might have been unwittingly used by the Russians (and reading the transcripts, it’s obvious how Kislyak played to Flynn’s resentments and Trump’s ego.

When Barnett focused on crimes, rather than national security threats, he was playing a role.

And in playing that role, his interview will not withstand the kind of scrutiny he may one day face if — for example — his claims about Andrew McCabe’s micro-management get him deposed as part of McCabe’s lawsuit.

Over 72 Hours, Trump and Chuck Grassley Provide Emmet Sullivan Proof that Peter Strzok’s Notes Were Altered for Political Reasons

Over the past 72 hours, the following events have proven not just that Peter Strzok’s notes were altered, but that that was done for political purpose.

It started on Monday, when Strzok lawyer Aitan Goelman sent Judge Emmet Sullivan a letter confirming that the handwritten dates on two sets of his notes were, “not written by Mr. Strzok.”

That the notes memorializing what Jim Comey briefed others about a January 5, 2017 meeting were altered is not in doubt. Sidney Powell and DOJ have already provided the original notes (which I’ve annotated to show that the notes did not originally have a date) and the altered ones (which I’ve annotated to note where a date has been added).

The second set of notes were provided to Flynn’s lawyers on September 23 and submitted to the docket on September 24. It’s not clear whether they were altered before or after they got sent from DOJ. I hope Judge Sullivan gets to the bottom of that question.

Then, in Tuesday’s hearing, Sidney Powell admitted not just that she has spoken with the President about this case (insanely asking him not to pardon her client), but also that she speaks — apparently regularly — with President Trump’s campaign lawyer, Jenna Ellis, betraying that Flynn’s efforts to blow up his prosecution are a matter of interest to Trump’s campaign.

Then, hours later, on Tuesday night, the President made this prepared attack on Joe Biden during the first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

As I noted when Jeffrey Jensen handed over the first set of notes pretending to be uncertain about what date they were from, by altering the date about a meeting that has been publicly dated as January 5, 2017 for over two years, it presented a false chronology whereby Joe Biden suggested the FBI investigate Flynn for the Logan Act (which is what DOJ is falsely claiming was the only basis for investigating Flynn, even though every single witness and every single contemporaneous record has said Flynn was interviewed under an 18 USC 951 predication to see if he would tell the truth about his calls with Sergey Kislyak), and then Jim Comey returned to the FBI and ordered his minions to do just that.  That is, it would create the (false) possibility that the meeting at the White House happened, and then a discussion between Strzok and Page discussing the Logan Act started. The reality is that Strzok and Page were talking about it the day before the meeting.

From that false appearance, Powell asserted in a representation to Emmet Sullivan that the meeting was believed to have happened on January 4 and Biden apparently had been the one to suggest Logan Act, thereby suggesting (falsely) that Biden was the one who raised the Logan Act.

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

That transparently false accusation that Sidney Powell (who has been speaking with Trump’s campaign lawyer) made on June 24 then showed up as a prepared attack in President Trump’s very first campaign debate on September 29. The altered notes appeared in the docket on September 24, and then five days later the President of the United States made a false claim that depends on the alteration.

Sidney Powell is using her purported defense of Mike Flynn as a campaign prop.

Yesterday, Chuck Grassley — who has been chasing all matter of conspiracy in the service of President Trump and is staffed by diehard Republicans — gave up the game. At the Jim Comey hearing, this exchange occurred.

Grassley: Did you ever speak with President Obama or Vice President Biden about any aspect of the Flynn case. If so, what did you discuss?

Comey: I remember the Flynn investigation coming up once. I think it was January the Fifth, when President Obama held me back to urge me to do the case in the normal way, and to let him know if there was any reason that he should not be sharing sensitive information about Russia with the Trump transition. I assured him that I would keep him informed and that I would conduct the investigation in that way.

Grassley [reading a prepared question]: During the January 5, 2017 meeting between you, President Obama, Vice President Biden, Sally Yates, and Susan Rice, did you mention that Flynn’s calls with the Russian Ambassador appear, quote unquote, “appear legit”?

Comey: I don’t remember using that word. If I used it I would have meant “authentic” and “not fabricated.” I wouldn’t have meant appropriate. But I don’t remember using that word.

It’s clear, from the way Grassley is reading a prepared question and the way he provides details about that January 5 meeting that he already knew of the meeting, and that that’s why he asked Comey the initial question in the first place.

Critically, an 87-year old Senator reading from notes his staffers — whose portfolios include many other tasks in addition to writing imagined gotcha questions based off Peter Strzok’s notes — stated as unquestionable fact that the meeting occurred on January 5. Unlike Jeffrey Jensen, they have no doubt about the date.

That’s not at all surprising. After all, Chuck Grassley first started pursuing this question around August 2017, when he obtained Susan Rice’s notes to the file recording the meeting (from unknown sources, but I find it interesting that Barbara Ledeen obtained it as if receiving it directly in discovery even as Robert Mueller got it).

But the question Grassley read came straight from Strzok’s notes, the ones that got altered. And even he knows — with access to far less evidence than Jeffrey Jensen — that the meeting happened on January 5.

Again, it’s not clear who altered the notes — DOJ or Flynn’s lawyers. But in a sense, it doesn’t matter. The first fraud on the court came when Jeffrey Jensen claimed there was any doubt about what date the meeting occurred. Yesterday, Chuck Grassley just made it clear that no credible person could believe that.

On a Key Issue in Mike Flynn’s Case — which FBI Agent to Believe — DOJ Argued against DOJ

The epic five hour hearing in the Mike Flynn case just wrapped up.

The most notable events, one which may utterly sway Judge Sullivan’s opinion, were two details that would give Sullivan reason to say this is the exceptional case where he should not grant the motion to dismiss.

The first was Sidney Powell’s admission that she has spoken to the President about this case, and also spoken with Trump’s campaign lawyer, Jenna Ellis, about it, the latter apparently more than once. Powell tried to claim Executive Privilege for her conversation(s) with the President about the case, until Sullivan pointed out the sheer absurdity of that. Powell was never asked why she was speaking to a lawyer, Ellis, whose job it is to make sure the President doesn’t break any campaign finance laws about this case. Still, those admissions, handled with all the leaden aplomb that Powell exemplifies, will provide Sullivan ample basis (on top of Trump’s tweets and everything else) to prove that this was all politicized by the President.

The other detail that might really sway Sullivan was the judge’s mention of Aitan Goelman’s letter informing Judge Sullivan that someone — and Goelman did not speculate on who might have done this — altered the notes of his client. Sullivan said he was “floored” when he read the letter.  Later on, Powell accused Strzok of being the dirtiest FBI agent of all time. Some other things make me wonder — though this would make the logistics rather interesting — whether Powell was the one who altered the notes. In any case, Sullivan ordered that someone authenticate the filings submitted to the court.

Judge Sullivan was already bugged by the letter Sidney Powell wrote to Billy Barr asking that he do all the things he subsequently did, notably appoint a lawyer to review the entirety of the prosecution. The confirmation that Powell has been personally lobbying Trump’s (!!!) campaign lawyer for intervention seems to seal the proof that this is political.

Still, perhaps a more substantive problem with the pro-Flynn argument is that DOJ’s two representatives (Ken Kohl for the DC US Attorney’s Office) and the Solicitor General’s counsel, Hashim Mooppan) contradicted each other on a key issue.

Mooppan repeatedly claimed, “what if it were true that this was a witch hunt”? He relied, significantly, on two things. First, Bill Priestap’s notes clearly recording that FBI did the interview to figure out whether Mike Flynn would tell the truth.

Rather than focusing on what Priestap and every witness confirmed in real time and since was the purpose of the interview, Mooppan instead focused on Priestap’s notation of the debate before this, about whether they just wanted to get Flynn to lie. As John Gleeson pointed out, though, that would not make Flynn abnormal at all. That happens to defendants all the time. But in fact, Gleeson further noted, that’s not what happened; Peter Strzok and Joe Pientka actually cued Flynn with his own words to make sure he had an opportunity to fix the record, and Flynn did not do so. Moreover, all other witnesses said the same thing Priestap did: the point of the interview was to see if Flynn would tell the truth.

Plus, there’s a real problem with Mooppan’s reliance on Priestap’s notes. As the NYT reported, DOJ rushed to move to dismiss the case while Priestap’s 302 was being finalized.

Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan. They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court.

The department’s motion referred to notes that Mr. Priestap wrote around the bureau’s 2017 questioning of Mr. Flynn, who later pleaded guilty to lying to investigators during that interview. His lawyers said Mr. Priestap’s notes — recently uncovered during a review of the case — suggested that the F.B.I. was trying to entrap Mr. Flynn, and Attorney General William P. Barr said investigators were trying to “lay a perjury trap.”

That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case. He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.

The department’s decision to exclude mention of Mr. Priestap’s interview in the motion could trouble Judge Sullivan, who signaled late on Tuesday that he was skeptical of the department’s arguments.

In spite of its ability to turn Bill Barnett’s 302 around in a week, DOJ has never disclosed Priestap’s 302 debunking this claim to Judge Sullivan. These notes don’t say what Mooppan falsely claimed to Sullivan they did. And that may become more clear in days ahead.

The other thing Mooppan relied upon, repeatedly, was the claim that Pientka and Strzok didn’t believe Flynn had lied after they interviewed him (he also relied on a Jim Comey comment, made without knowledge of all the evidence that FBI subsequently gathered, that corroborated the evidence that Flynn had lied). Except that’s not what they said (and some of the texts that DOJ has released make this clear). They believed Flynn either believed what he said (though they’d get proof later he did not), or that he was just a very accomplished liar.

Meanwhile, Ken Kohl, who was named Acting Principal AUSA at around the same time as this motion to dismiss, and who seemed genuinely ignorant of key details of the case but nevertheless wanted to claim that DC USAO wasn’t acting politically (Roger Stone’s case did not come up), said a number of things that conflict with what DOJ has already said (including that any of this was Brady).

Significantly, however, he seemed really impressed with Bill Barnett’s 302, perhaps because he doesn’t know the case well enough to know how many glaring contradictions there are in the 302 (which makes me wonder whether he was a source for WaPo’s supine treatment of the interview). Kohl talked about all the claims — belied by actual primary documents, basic logic, and gravity — Barnett made that don’t hold up to scrutiny.

The question of whether Bill Barnett sent pro-Trump tweets on his FBI phone — making him the mirror image of Peter Strzok — never came up in today’s hearing.

But John Gleeson did note that Barnett had none of the doubts that Mooppan claimed (falsely) that Strzok and Pinetka had.

That means, ultimately, DOJ was arguing against DOJ.

Mooppan claimed that Strzok and Pientka’s alleged doubts that Flynn lied — refuted by documents already shared with Sullivan — proved DOJ had to dismiss the case. Kohl, meanwhile, claimed that Barnett’s 302 — which showed he had absolutely no doubt that Flynn lied to the FBI — proved DOJ couldn’t prosecute the case.

There’s not actually a controversy here: At least Strzok and Barnett agree that Flynn lied, which should be all it takes. (Indeed, Barnett could testify that Flynn did lie, if DOJ needs an aggressively pro-Trump agent to put on the stand.)

But the Solicitor General’s office relies on the agents who said that Flynn was a good liar and DC USAO sides with the agent who states clearly that Flynn lied.

John Gleeson has noted that DOJ can’t keep its story straight from week to week. In today’s hearing, they couldn’t even keep their story straight from lawyer to lawyer.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Jeffrey Jensen “Investigation:” Post-It Notes and Other Irregularities

I noted the other day that Jeffrey Jensen had not asked William Barnett some basic questions (such as the import of Mike Flynn’s lies to the decision to interview Flynn or the names of colleagues who had purportedly joked about “wiping” their phones) that you would expect from a half-serious investigation. That’s ironic, since one of Barnett’s allegations about Mueller’s investigators is that they didn’t ask basic follow-up questions (the public record conflicts with a number of Barnett’s claims about the Mueller investigation).

Given my discovery about differences between two versions of Peter Srtzok’s notes purportedly “discovered” in the Jensen investigation, I want to look more closely at what the Bates stamps and Post-It note practices of the investigation suggest about it. I believe I have put all the documents released under the guise of the Jensen investigation here (though have not finished annotating them). I’ve put what delivery correspondence got released explaining those documents below (I’ve updated these on 9/29).

Both Bates series are labeled SCO documents even when they’re not SCO documents

There are actually two sets of Bates stamps among the exhibits submitted in an effort to blow up the Flynn prosecution.

One series includes Bates stamps DOJSCO700021192-21198 (Joe Pientka and Peter Strzok’s notes from Flynn’s interview), DOJSCO700021201-21205 (Peter Strzok’s July 19, 2017 302). and DOJSCO 700022308-12 (a version of the January 24, 2017 Flynn 302). Here’s what the typeface of that Bates stamp looks like:

These reflect documents turned over to Flynn in discovery before Barr started blowing up the prosecution (see this Strzok 302 and his notes included as part of this exhibit). These were all submitted with the Motion to Dismiss on May 7, 2020. The inclusion of documents with an earlier stamp is not at all nefarious. Indeed, it helps to distinguish three different types of documents submitted with the Motion to Dismiss:

  • Documents already turned over to Flynn, which were submitted accompanying the MTD with their original Bates stamp
  • Documents Sidney Powell had asked for but which Emmet Sullivan rejected as Brady discovery; these have no Bates stamp (though Sullivan has reviewed some of these documents)
  • Documents that were “discovered” as “new” to justify the Motion to Dismiss; they have the later Bates stamp

Here’s an example of the Jensen typeface:

Remember: these weren’t new to the FBI Agents or prosecutors on the team. They were just “new” to Jeffrey Jensen, who was brought in from St. Louis just to provide the documents a virgin birth.

The one “tell” about this Bates stamp is that it incorporates documents that well precede the Mueller investigation, and probably weren’t part of the Mueller investigation, under an SCO stamp.

I guess “BillyBarrBlowsUpBobby3Sticks” would be too obvious.

Bill Priestap’s original notes, with sticky note, has two Bates numbers

Once you get into the Jensen Bates stamp, documents often get submitted over and over. The most remarkable example of that are Bill Priestap’s notes from a January 24, 2017 meeting prior to the Flynn interview. Bates DOJSCO 700023464 was submitted twice (because Flynn’s lawyers screwed up the upload), once as part of Docket #188 and again as part of Docket #190. Then, the exact same document was submitted as DOJSCO 700022702 as part of the Motion to Dismiss.

This is interesting for two reasons. It’s common to find the same document with two different Bates stamp numbers. For example, if four people have received the same email, it may show up in discovery four times, with four different Bates stamps. But that’s more common with electronic files, for obvious reasons.

But this is not multiple digital versions of the same document. Both copies have the same blue sticky note on it, meaning both exhibits were scanned (or were from the same scan).

That wouldn’t be all that weird if the digital exhibits submitted with the Motion to Dismiss had different Bates numbers. But they generally don’t. For example, William Barnett’s draft Closing Communication has Bates stamp DOJ SCO 700023466 in both the exhibit Flynn’s team released on April 30 and the version submitted with the Motion to Dismiss.

The most curious detail of the two instances of the original copy of Priestap’s notes is that the one submitted later, with the Motion to Dismiss, has a much earlier (762 pages) Bates stamp. My eyes are beginning to blur, but I think the one other instance of this involves three documents involving Peter Strzok in advance of the Mike Flynn interview.

The earlier Bates notes might suggest that those select documents from January 23 and 24 were found — perhaps even before Jensen began work — and the disclosure theater in service of the Motion to Dismiss all followed it.

If that’s true, DOJ’s failure to release Priestap’s 302 explaining all this is fairly damning, given that DOJ is suppressing his explanation even while re-releasing the same documents.

DOJ falsely presents annotations as unaltered hand-written notes, misleadingly so with one set of Strzok notes

Which brings me to where I started this rabbit hole: with Jensen’s treatment of hand-written notes. I’ll probably miss something but I think the hand-written notes released by Jensen include:

The interview notes are a different animal (though remember that FBI got the mixed up and no one figured it out for months, possibly until I pointed it out).

Whoever took the Boente notes added a date in real time. That’s likely, though not certain, in the case of Gauhar. Priestap almost certainly dated his own notes (though it’s unclear who put that blue sticky on them).

In the unredacted bits, there is no date on Strzok’s January 25 notes. As noted, the originally released version of Strzok’s notes, which is a scan of the original, has no date (and Jeffrey Jensen provided Sidney Powell a range rather than the obvious date of January 5 for them, so she could make a false claim about Joe Biden).

The copy of Strzok’s March 28, 2017 notes, Bates Stamp 700023501 has the date added. It appears to have been added with a Post-It (annotated in yellow). It also appears that you can see Post-It note tabs (annotated in red) picked up on the copy, some with notes on them.

It appears, then, that someone simply made a copy of the notes without taking them out of a notebook. I have no reason to believe the date is inaccurate, though I am intrigued by the way the redaction obscures what would be the edges of the date Post-It.

The date on Andrew McCabe’s notes, with a Bates stamp 700023502, the next in the series, appears to have been added after the fact by someone other than the person who took the notes. While it has some similarities with the date on the Strzok notes, it doesn’t cross the 7 as one of the two Strzok annotations did, and could easily have been added by whoever filed the notes in real time.

 

Finally, the new version of Strzok’s January 5, 2017 notes, with a Bates stamp 700023503 and so the next in a series, include the added date and some newly unredacted content (inside the red rectangle).

As noted, there is absolutely no doubt that these notes were written on January 5, 2017 (indeed, the newly unredacted details match other versions of this meeting). But after having released an unannotated version of this document, Jensen (or whoever is running this rodeo) decided to release another version that affirmatively misleads about that certainty.

The other instances of these date annotations are not nefarious, as far as I understand it. But pretending there was confusion about the date of these notes served to support an attack on Joe Biden. And rather than clearing all that up, DOJ has done what Kevin Clinesmith faces prison time for having done: alter a record.

It is inaccurate to say these are “Peter Strzok’s hand-written notes” (and, if the McCabe date was added after the fact, those too). Rather, this is a copy of Strzok’s hand-written notes that appear as a page in someone’s investigative notebook, and the date reflects an alteration — not identified to the court — to Strzok’s notes, an alteration that introduces an error.

Let me clear: I don’t think the dates change the investigative significance of these notes. I believe the January 5 notes have zero investigative significance, taken in context. I think the redaction of Brandon Van Grack’s name — if that’s what happened in William Barnett’s 302 — is a far graver example of abuse, because it serves to hide the baselessness of DOJ and Flynn’s complaints.

Rather, all these details reflect what an amateur effort Barr’s effort to blow up Flynn’s prosecution is. These irregularities, while not dramatically affecting the underlying evidentiary claim (excepting Powell’s attack on Joe Biden), suggest that no one is conducting a real investigation that would have to sustain future judicial review. They’re doing nothing except producing propaganda.


April 24: Jocelyn Ballantine files notice of discovery correspondence along with that correspondence.

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.

April 24: Powell submits two documents obtained from Covington & Burling, a Rob Kelner email indicating that C&B has an understanding that Mueller is unlikely to charge Jr, and another letter making it quite clear that Mueller did not make promises.

April 29: Ballantine files notice of discovery correspondence along with that correspondence.

As we disclosed by letter dated April 24, 2020, 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 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.1 These materials are covered by the Protective Order entered by the Court on February 21, 2018.

1 Note that the enclosed spreadsheet (DOJSCO-700023473 – DOJSCO700023475), which contains messages between and among various Bureau personnel, is an index and another detailed version of these messages is forthcoming.

May 5: Ballantine files notice of discovery correspondence along with that correspondence.

 As we disclosed by letter dated April 24, 2020, 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 enclosed documents were obtained and analyzed by USA EDMO in March, April and May 2020; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

May 18: Ballantine files notice of discovery correspondence along with that correspondence.

As we disclosed by letter dated April 24, 2020, 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 enclosed documents were obtained and analyzed by USA EDMO in March, April and May 2020; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

June 23: Ballantine files notice of discovery correspondence along with that correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. 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. These materials are covered by the Protective Order entered by the Court on February 21, 2018; additional documents may be forthcoming.

June 24: Powell accuses Biden of starting the Logan Act investigation based off false date on Strzok notes.

July 7: Ballantine files notice of discovery correspondence along with that correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. The documents include handwritten notes of former Deputy Assistant Attorney General Tashina Gauhar from a January 25, 2017 meeting (23487-80), notes of former Deputy Assistant Director Peter Strzok from that same meeting (23491-92), an internal DOJ document dated January 30, 2017 (23493-97), and handwritten notes of then Acting Attorney General Dana Boente, dated March 30, 2017 (23498-500). These materials are covered by the Protective Order entered by the Court on February 21, 2018; additional documents may be forthcoming.

September 23: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. The documents include handwritten notes of former Deputy Assistant Director Peter Strzok (23501 & 23503) and former Deputy Director Andrew McCabe (23502); and internal text messages between FBI analysts who worked on the Flynn matter (23504- 23516).

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

September 24: Powell files supplement quoting notice.

The documents include handwritten notes of former Deputy Assistant Director Peter Strzok (23501 & 23503) and former Deputy Director Andrew McCabe (23502); and internal text messages between FBI analysts who worked on the Flynn matter (23504- 23516); . . . additional text messages between former DAD Strzok and Lisa Page (23516-23540).

September 24: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. Attached hereto is a summary of the National Security Letters issued by the FBI (23541-42) and a related email (23543-44).

September 24: Ballantine sends Powell notice of the William Barnett 302 without noticing Judge Sullivan an unclassified version was shared with Flynn’s team.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. On September 17, 2020, United States Attorney Jeffery Jenson conducted an interview of Special Agent William J. Barnett. A copy of the report of that interview is attached to this letter. The government is filing a redacted version of this report of interview as an attachment to its supplemental motion to dismiss tonight.

The unredacted version of the report of interview is covered by the Protective Order entered by the Court on February 21, 2018, and is designated “sensitive.”

September 27: Ballantine sends Powell notice of new exhibits without noticing Judge Sullivan of the correspondence.

As we have previously disclosed, beginning in January 2020, the United States Attorney for the Eastern District of Missouri has been conducting a review of the Michael T. Flynn investigation. The enclosed documents were obtained and analyzed by USAO EDMO during the course of its review. Attached hereto is are notes of three ODAG attorneys, numbered 23559- 23562

September 28: Ballantine files four different notices of discovery correspondence at once (resulting in delayed notification to John Gleeson).

 

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

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

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

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

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

Exhibit A:

Exhibit B:

Exhibit C:

Exhibit D:

Exhibit E:

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

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

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

[snip]

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

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

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

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

Things get stranger.

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

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

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

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

Things get stranger still.

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

 

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

 

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

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

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

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

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

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

But wait. Things get still stranger.

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

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

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

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

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

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

Billy Barr Releases 302 that Proves View of Pro Mike Flynn Agent Held Sway in Mueller Report Conclusions

Before I do a deep dive of the 302 that Billy Barr had released in yet another attempt to blow up the Mike Flynn prosecution, let me review the conclusion of the Mueller Report was with regards to whether President Trump even knew about Mike Flynn’s calls with Sergey Kislyak, much less ordered them.

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

[snip]

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

The conclusion is central to the finding that there was no proof of a quid pro quo. If Trump had ordered Flynn to undermine sanctions — as a sentencing memo approved by Main DOJ explained — it would have been proof of coordination.

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

That means the conclusion adopted by the Mueller Report is precisely the one that the FBI Agent who investigated Flynn, William Barnett, held, as described repeatedly in the interview done by Jeffrey Jensen in an attempt to undermine the Mueller prosecution.

With respect to FLYNN’s [redacted] with the Russian Ambassador in December 2016, BARNETT did not believe FLYNN was being directed by TRUMP.

The Mueller Report reached that conclusion in spite of the fact that — as Barnett describes it — in his second interview, Flynn said that Trump was aware of the calls between him and the Russian Ambassador.

During one interview of FLYNN, possibly the second interview, one of the interviewers asked a series of questions including one which FLYNN’s answer seemed to indicate TRUMP was aware of [redacted] between FLYNN and the Russian Ambassador. BARNETT believed FLYNN’s answer was an effort to tell the interviewers what they wanted to hear. BARNETT had to ask the clarifying question of FLYNN who then said clearly that TRUMP was not aware of [redacted]

Barnett then goes on a paragraph long rant claiming there was no evidence that Trump was aware.

BARNETT said numerous attempts were made to obtain evidence that TRUMP directed FLYNN concerning [redacted] with no such evidence being obtained. BARNETT said it was just an assumption, just “astro projection,” and the “ground just kept being retreaded.”

The claim that there was no evidence that Trump directed Flynn to undermine sanctions is false. I say that because Flynn himself told Kislyak that Trump was aware of his conversations with Kislyak on December 31, 2016, when Kislyak called up to let Flynn know that Putin had changed his mind on retaliation based on his call.

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

KISLYAK: yeah.

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

KISLYAK: You’re absolutely right.

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

Flynn literally told the Russian Ambassador that Trump was aware of the discussions, but Barnett claims there was no evidence.

Now is probably a good time to note that, months ago, I learned that  Barnett sent pro-Trump texts on his FBI phone, the mirror image of Peter Strzok sending anti-Trump texts.

So Billy Barr has released a 302 completed just a week ago, without yet releasing the Bill Priestap 302 debunking some of the earlier claims released by Billy Barr in an attempt to justify blowing up the Flynn prosecution, much less the 302s that show that Flynn appeared to lie in his first interview with Mueller’s investigators (as well as 302s showing that KT McFarland coordinated the same story).

And the 302 is an ever-loving shit show. Besides the key evidence — that his claim that investigators didn’t listen to him even though the conclusion of the Mueller Report is the one that he says only he had — Barnett disproves his claims over and over in this interview.

Barnett’s testimony substantially shows five things:

  • He thought there was no merit to any suspicions that Flynn might have ties to Russia
  • He nevertheless provided abundant testimony that some of the claims about the investigation (specifically that Peter Strzok and probably Brandon Van Grack had it in for Flynn) are false
  • Barnett buries key evidence: he mentions neither that Flynn was publicly lying about his conversations with Sergey Kislyak (which every other witness said was driving the investigation), and he did not mention that once FBI obtained call records, they showed that Flynn had lied to hide that he had consulted with Mar-a-Lago before he called Sergey Kislyak
  • Jensen didn’t ask some of the most basic questions, such as whether Barnett thought he had to investigate further after finding the Kislyak call or who the multiple people Barnett claimed joked about wiping their phone were
  • Barnett believes that Mueller’s lawyers (particularly Jeannie Rhee and Andrew Weissmann) were biased and pushing for a conclusion that the Mueller Report shows they didn’t conclude, but he didn’t work primarily with either one of them and his proffered evidence against Rhee actually shows the opposite

According to the org charts included in the Carter Page IG Report (PDF 116), it appears that Barnett would have been on a combined Crossfire Hurricane team from July 31 to December 2016; the report says he was working on the Manafort case.

Then, he took over the Flynn case. He would have reported up through someone else who also oversaw the George Papadopoulos investigation, but he would not be part of that investigation.

Even after a subsequent reorganization, that would have remained true until the Mueller investigation, when — by his own description — Barnett remained on the Flynn team.

Early in his 302, Barnett described that he thought the investigation was “supposition on supposition,” which he initially attributed to not knowing details of the case. Much later in the interview, he said he, “believed there were grounds to investigate the other three subjects in Crossfire Hurricane; however, he thought FLYNN was the ‘outlier.'” which conflicts with his earlier claim.

By his own repeated description, Barnett did not open the Flynn case and did not understand why it had been opened (he doesn’t explain that this was an UNSUB investigation, which undermines much of what he says). Moreover, his complaints about the flimsy basis for the Flynn investigation conflict with what Barnett said in the draft closing memo for the investigation, which explained that the investigation was opened,

on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.

[snip]

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

A key detail here is that Barnett himself said part of this was an attempt to figure out whether Flynn may have unwittingly been targeted by Russia, which makes his focus on crime in the Jensen interview totally contradictory.

Barnett did explain that NSLs were written up in December but pulled back (these were also released last night, though not with the detail that they were withdrawn). He claimed not to know why the NSLs were withdrawn.

A National Security Letter (NSL) had been prepared to obtain “toll records” for a phone belonging to FLYNN. The request was “pulled back” prior to the records being obtained. Peter Strzok (STRZOK) was the individual who ordered the NSL be pulled back. BARNETT was not told why the NSL was pulled back.

In the draft closing that Barnett himself wrote, he explained that because Flynn was not at that point named as a possible agent of a foreign power, that limited the investigative techniques they might use.

The writer notes that since CROSSFIRE RAZOR was not specifically named as an agent of a foreign power by the original CROSSFIRE HURRICANE predicated reporting, the absence of any derogatory information or lead information from these logical source reduced the number of investigative avenues and techniques to pursue.

That’s also another reason (not noted by Barnett in this interview) why he didn’t get a 215 order.

BARNETT chose not to obtain records through FISA Business Records because he advised this process is comparatively onerous.

Note that Strzok’s order to withdraw the NSL is yet more proof that Strzok was not out to get Flynn.

Barnett also confirmed something else that Strzok has long said — that they chose not to use any overt methods during the election (unlike the Hillary investigation).

BARNETT was told to keep low-key, looking at publicly available information.

Again, this adds to the evidence that no one was out to get Trump.

Barnett also explains how Stefan Halper shared information about Flynn, and he — a pro-Trump agent skeptical of the investigation — decided to chase down the Svetlana Lokhova allegation.

The source reported that during an event [redacted] 2014 FLYNN unexpectedly left the event [redacted] The source alleged FLYNN was not accompanied by anyone other [redacted] BARNETT believed the information concerning [redacted] potentially significant and something that could be investigated. However, Intelligence Analysts did not locate information to corroborate this reporting concerning redacted] FLYNN, including inquiries with other foreign intelligence agencies. BARNETT found the idea FLYNN could leave an event, either by himself or [redacted] without the matter being noted was not plausible. With nothing to corroborate the story, BARNETT thought he information was not accurate.

Later on, Barnett seems to make an effort to spin his inclusion of the Lokhova information in the closing memo as an attempt to help Flynn, describing,

BARNETT wanted to include information obtained during the investigation, including non-derogatory information. BARNETT wanted to include [redacted] specifically [redacted] FLYNN. The [redacted] and FLYNN were only in the same country, [redacted], the same time on one occasion and at that time they were visiting different cities.

That is, something in the closing memo that has been spun as an attack on Flynn he here spins as an attempt to include non-derogatory information, to help Flynn.

I find it curious that the main reason Barnett dismissed this allegation is because he found it implausible that a 30-year intelligence officer would know how to leave a meeting unnoticed. But let it be noted that for over a year, Sidney Powell has suggested that chasing down this tip was malicious targeting of Flynn, and it turns out a pro-Trump agent is the one who chased it down.

In many places, Barnett’s narrative is a muddle. For example, early in his interview, he said that he worked closely with Analyst 1 and Analyst 2. Analyst 2 worked on the Manafort investigation. Barnett had to get the Flynn files from Analyst 1, suggesting Analyst 1 had a key role in that investigation. But then later in the interview, after explaining that Analyst 1, “believed the investigation was an exercise in futility,” Barnett then said that Analyst 3 “was the lead analyst on RAZOR.” Barnett described that Analyst 3 was “‘a believer’ due to his conviction FLYNN was involved in illegal activity,” but also described that Analyst 3 was the one who didn’t want to interview Flynn. But then Barnett explains several other people who did not want to interview Flynn, in part because the pretense Barnett wanted to use (that it was part of a security clearance) was transparently false.

Barnett then explains that he did not change his opinion about whether Flynn was compromised based on reading the transcript (it’s unclear whether he read just one or all of them) of Flynn’s call with Kislyak. He explained that he “did not see a potential LOGAN ACT violation as a major issue concerning the RAZOR investigation.”

There are several points about this request. First, Jeffrey Jensen is taking a line agent’s opinion about a crime as pertinent here, after Billy Barr went on a rant the other day about how line agents and prosecutors don’t decide these things (showing the hypocrisy of this entire exercise). Barnett’s account undermines the disinformation spread before that the Logan Act claim came from Joe Biden, disinformation which Jensen himself wrongly fed.  Significantly, Barnett does not appear to have been asked whether he thought the transcripts meant he had to investigate further. 

Barnett says “in hindsight” he believes he was cut out of the interview of Flynn, based solely on the norm that normally “a line agent/case agent would do the interview with a senior FBI official present in cases concerning high ranking political officials.” He doesn’t consider the possibility that Joe Pientka did it because he had been in the counterintelligence briefing with Flynn the previous summer, which is what the DOJ IG Report said.

He then says “There was another reorganization of the Crossfire Hurricane investigation after the 1/24/17 interview of Flynn. This conflicts, somewhat, with both the org charts Michael Horowitz did, but also texts already released showing the reorg started in the first days of January (though the texts are consistent with the initial plan for Barnett and Andy McCabe to interview Flynn and I don’t necessarily trust the DOJ IG Report over Barnett), but that was before a lot else happened.

Only after describing a post-interview reorganization does Barnett raise something that all the public record says happened earlier, that, “The FBI was reacting to articles being reported in the news, most notably an article written by Ignatius concerning [redacted] involving FLYNN to a Russian Ambassador.” But even here, Barnett does not talk (nor does he appear to have been asked) about Flynn lying to the press about the intercepts. In other words, Jensen’s investigators simply didn’t address what every single witness says was the most important factor at play in the decision to interview Flynn, his public lies about the calls with Kislyak.

In one place, Barnett claims that “base-line NSLs” were filed “after the article by Ignatius,” which would put it in mid-January, before the interview. Later, he says that “In February 2017, NSLs were being drafted with [SA3] instructing BARNETT what needed to be done,” putting it after Flynn obviously lied in his interview. At best, that suggests Barnett is eliding the timeline in ways that (again) don’t deal with the risk of Flynn’s public lies about the Kislyak call.

Barnett then claims that McCabe was running this (in spite of the involvement of SA3 and his earlier report — and Horowitz’s org chart, not to mention other evidence documents already released — showing the continued involvement of Strzok). Barnett also backed getting NSLs in early 2017, and even insisted, again, that they should have been obtained earlier. Jensen appears to be making a big deal out of the fact that Kevin Clinesmith approved the NSLs against Flynn in 2017.

BARNETT said he sent an e-mail to CLINESMITH on 02/01/2017 asking CLINESMITH about whether the predication information was acceptable, as it was the same information provided on the original NSL request in 2016. CLINESMITH told BARNETT the information was acceptable and could be used for additional NSLs.

There’s a lot that’s suspect about this line of questioning, not least that the predicate for the investigation as a whole was different than the one for Flynn. But I’m sure we’ll hear more about it.

A Strzok annotation of a NYT article that Lindsey Graham released makes it clear that by February 14, 2017, the FBI still hadn’t obtained the returns from most of the NSLs.

Barnett seems to suggest that as new information came in “in BARNETT’s opinion, no evidence of criminal activity and no information that would start a new investigative direction.” If he’s referring to call records (which is what the NSLs would have obtained) that is, frankly, shocking, as the call records would have shown that Flynn also lied about being in touch with Mar-a-Lago before calling Kislyak. It’s what Flynn was trying to hide with his lies! And yet Barnett says that was not suspect.

Then Barnett moved onto the Mueller team. He starts his discussion with another self-contradictory paragraph.

BARNETT was told to give a brief on FLYNN to a group including SCO attorney Jean Rhee (RHEE), [four other people], and possibly [a fifth] BARNETT said he briefly went over the RAZOR investigation, including the assessment that there was no evidence of a crime, and then started to discuss [redacted — probably Manafort] which BARNETT thought was the more significant investigation. RHEE stopped BARNETT’s briefing [redacted] and asked questions concerning the RAZOR investigation. RHEE wanted to “drill down” on the fees FLYNN was paid for a speech FLYNN gave in Russia. BARNETT explained logical reasons for the amount of the fee, but RHEE seemed to dismiss BARNETT’s assessment. BARNETT thought RHEE was obsessed with FLYNN and Russia and she had an agenda. RHEE told BARNETT she was looking forward to working together. BARNETT told RHEE they would not be working together.

First, by his own description, Barnett was asked to brief on Flynn, not on Manafort (or anyone else); he was still working Flynn and not (if Horowitz’s org chart is to be trusted) involved anymore with Manafort at all. So if he deviated from that, he wasn’t doing what he was supposed to do in the briefing, which might explain why people in the briefing asked him to return to the matter at hand, Flynn. Furthermore, in much of what comes later, Barnett claims the prosecutors overrode the agents (in spite of the fact that, as shown, the final conclusion of the report sided with Barnett). But Barnett here shows that from his very first meeting with Mueller prosecutors, he was the one being bossy, not the prosecutors.

Update: I’ve since learned that the redacted information pertains to the Flynn Turkey case. The point about Rhee still stands, however. Rhee was in charge of the Russian side of the investigation. She asked questions about the Russian side of the investigation. She was polite and professional. He responded by being an abusive dick. What this paragraph shows is that Barnett has a workplace behavior problem, and he used his own workplace behavior problem to try to attack the female colleague he was being an asshole to.

Barnett’s continued complaints about Rhee (and Weissmann) are nutty given that, as a Flynn agent, he wouldn’t have been working with them.

Barnett claims that,

In March or April 2017, Crossfire Hurricane went through another reorganization. All of the investigations were put together.

The timing coincides with, but the structure does not match, what appears in the Carter Page IG Report (though, again, I don’t necessarily assume DOJ IG got it right).

Then Barnett makes a claim that conflicts with a great deal of public facts:

On 05/09/2017, COMEY was fired which seemed to trigger a significant amount of activity regarding Crossfire Hurricane. Carter Page was interviewed three times and PAPADOPOULOS was also interviewed. Both investigations seemed to be nearing an end with nothing left to pursue. the MANAFORT case was moved from an investigative squad to a counter intelligence squad [redacted] The Crossfire Hurricane investigations seemed to be winding down.

The appointment of the SCO changed “everything.”

At least according to the Horowitz org chart, these weren’t his investigations. A list of interviews shows that FBI had not interviewed the witnesses to Carter Page’s trip before June 2017 (though it is true that the investigation into him was winding down). The details of the Papadopoulos investigation would have shown that it was after at least the first (and given the Strzok note about NSLs) after probably several more interviews before the FBI discovered that Papadopoulos tried to hide extensive contacts with Russians by deactivating his Facebook account. Mueller didn’t even obtain Papadopoulos’ Linked In account until July 7, 2017, and that was just the second warrant obtained by Mueller’s prosecutors, almost three months after he was appointed; that warrant would have disclosed Papadopoulos’ ties to Sergei Millian and further contacts with the Russians. Some of the earliest activity in the investigation pertain to Michael Cohen (in an investigation predicated off of SARs), with the Roger Stone investigation barely beginning in August, neither of which are included in Barnett’s comments. And Barnett makes no mention of the June 9 meeting, discovered only as a result of Congress’ investigations, which drove some of the early investigative steps.

Which is to say, the evidence seems to have changed everything. And yet he says it was Mueller.

And yes, Jim Comey’s firing is part of that. But as to that, Barnett has this ridiculous thing to say:

As another example [of a “get Trump” attitude] BARNETT said the firing of FBI Director COMEY was interpreted as obstruction when it could just as easily have been done because TRUMP did not like COMEY and wanted him replaced.

Well, sure, in the absence of the evidence that might be true. But not when you had Comey’s memos that described how, first of all, Trump had committed to keeping Comey on (meaning he didn’t not like Comey!) but afterwards had tried to intervene in an ongoing investigation. It’s possible Barnett did not know that in real time — it wasn’t his investigation — but it’s not a credible opinion given what is in the memos.

Barnett also claims, as part of his “proof” that people wanted to get Trump that,

Concerning FLYNN, some individuals in the SCO assumed FLYNN was lying to cover up collusion between the TRUMP campaign and Russia. BARNETT believed Flynn lied in the interview to save his job, as that was the most plausible explanation and there was no evidence to contradict it.

Yes. There is evidence. The evidence is that Flynn’s lies hid his consultations with Mar-a-Lago, about which he also lied.

In a passage similarly suggesting that KT McFarland told the same lies that Flynn did because she wanted to get the Singapore job, Barnett seems to refer to (and DOJ seems to have redacted) a reference to Brandon Van Grack (who is the only Mueller prosecutor whose name would span two lines).

If that is, indeed, a reference to Van Grack, then it means DOJ is hiding evidence that Van Grack (along with Strzok) was not biased against Flynn.

Note, too, that Barnett doesn’t reveal that McFarland only unforgot her conversations with Flynn after Flynn pled guilty, which has a significant bearing on how credible that un-forgetting was. Nor does he note that Mueller didn’t charge McFarland with lying. The Mueller Report almost certainly has a declination description for why they didn’t charge McFarland, which (if true), would make a second thing where Barnett’s minority opinion had been determinative for the actual report, in spite of his claim that the prosecutors were running everything.

Finally, the 302 notes that Barnett was asked about whether he “wiped” his own phone.

BARNETT had a cellular telephone issued by the SCO which he did not “wipe.” BARNETT did hear other agents “comically” talk about wiping cellular telephones, but was not aware of anyone “wiping” their issued cellular telephones. BARNETT said one agent had a telephone previously issued to STRZOK.

If this were even a half serious investigation, Barnett would have been asked to back that claim with names. He was not.

What Billy Barr and Jeffrey Jensen have done is show that the only witness they’ve found to corroborate their claims can’t keep his story straight from one paragraph to another, and claims to be ignorant of several central pieces of evidence against Flynn.

That’s all they have.


Given that this post takes such a harsh view on Barnett, reminder I went to the FBI in 2017 regarding someone with no ties to Trump but who sent me a text about (and denigrating) Flynn.

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.