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Trey Gowdy Argues There’s No Way Mike Flynn Would Read Anything Trey Gowdy Wrote

If I had had to imagine an amicus brief from frothy right wingers to submit in the Mike Flynn case, one that Judge Emmet Sullivan could permit to prove he’s being equitable, but one that highlights what a shitshow the Mike Flynn argument is and therefore would likely backfire, it would look like this one. That Trey Gowdy —  who, while still in Congress, was the Republican most active in writing the House Intelligence Committee Report on Russiasigned on  along with Ken Starr and Margot Cleveland — just makes it even more special.

The amicus does three things.

It attempts to dismiss an argument the Watergate prosecutors made in an amicus brief, which argued that there’s a DC Circuit precedent clearly permitting a judge to reject a motion Rule 48 motion when the motion has no basis in fact.

But the D.C. Circuit has explained, in a decision that the Government fails to cite, that “considerations[] other than protection of [the] defendant . . . have been taken into account by courts” when evaluating consented-to dismissal motions under Rule 48(a). United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). Courts have exercised their authority under Rule 48(a) where “it appears that the assigned reason for the dismissal has no basis in fact.” Id. at 620– 21. Even when the Government represents that the evidence is not sufficient to warrant prosecution, courts have sought to “satisf[y]” themselves that there has been “a considered judgment” and “an application [for dismissal] made in good faith.” Id. at 620.

The frothy amici basically argue that this precedent is old and so doesn’t count anymore (even though they rely heavily on a decision, Rinaldi, from just four years later, and elsewhere on another precedent from 50 years earlier).

Amici who oppose the granting of the Government’s Rule 48 motion rely heavily on the D.C. Circuit’s 1973 decision in Ammidown. 7 But that decision did not address the profound separation of powers issue implicated by its theory of judicial power. In the almost half century since, the Supreme Court—and the D.C. Circuit—have substantially developed the separation of powers jurisprudence. Although Ammidown has not been expressly overruled, it has been superseded by subsequent teaching, and it can no longer reasonably be considered as the law of the Circuit.

The amicus brief also argues that Flynn’s perjury (of which the brief considers only his plea allocutions, and not his grand jury testimony), which led to Judge Sullivan tying up his court for two years, didn’t affect Sullivan’s performance of his duty as a judge and therefore can’t constitute contempt of court.

Gen. Flynn’s statements in connection with his plea plainly did not obstruct this Court in the performance of its duty. Thus, they simply cannot constitute contempt of court under long-standing precedent. The Court should therefore not embark on any contempt proceeding against Gen. Flynn.

But the most remarkable argument the amici make — remember, Trey Gowdy is on this brief — pertains to the “new” information that DOJ used to justify its flip-flop on Flynn’s prosecution.

In the amici presentation of “facts,” they mention, but don’t get into, the details of Flynn’s second allocution.

The case proceeded to a sentencing hearing on December 18, 2018, at which the Court made a further plea inquiry, and ultimately continued the case for sentencing at a later date.

They then quote the government’s irrelevant (to this legal argument) claim that Flynn didn’t have exculpatory information before he pled guilty

The Government concluded that Gen Flynn had entered his plea “without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him. Mr. Flynn stipulated to the essential element of materiality without cause to dispute it insofar as it concerned not his course of conduct but rather that of the agency investigating him, and insofar as it has been further illuminated by new information in discovery.” (Id. at 19.)

This new information had not been previously disclosed to Gen. Flynn, his counsel, or the Court.

They return to the issue at the end of their brief, basically making an argument (to Judge Sullivan, in a brief that also argues that he doesn’t have discretion to reject a motion to dismiss and doesn’t have the authority to hold Flynn in contempt for lying in his plea allocutions) about Judge Sullivan’s own discretionary standing order on Brady. It lays out the discovery Flynn had gotten under Sullivan’s discretionary order, relying on this government filing, which among other things makes it clear Flynn got a summary of the Mary McCord and Sally Yates 302s submitted as part of the government’s motion to dismiss, and also a summary of an investigation into allegations about the pre-interview meetings at FBI, the notes from which are one of the “new” documents the government presented with its motion to dismiss.

Once this case was reassigned to this Court, it promptly entered its Standing Order, which evidently had a significant effect on the subsequent proceedings. In March 2018, the Government provided to the defense 1,160 pages of documents relating to the alleged false statement to the FBI agents and 21,142 pages relating to alleged false statements in a filing under the Foreign Agents Registration Act (FARA) that was included as relevant conduct in the Statement of Offense. (Id.) In May 2018, the Government provided a draft of the FBI 302 report; summaries of the interviews of four individuals related to the false statement; a summary of a document in which the FBI advised the DOJ that it did not believe that Gen. Flynn was acting as an agent of Russia; a summary of interviews of other officials concerning Gen. Flynn’s conversations with Ambassador Kislyak; and more documents related to the FARA filings. (Id.)

In November 2018, the Government provided the defense a summary of its investigation into whether: (i) the FBI 302 report was altered to strengthen a false statement charge; and (ii) the interviewing agents were pressured to “get” Gen. Flynn. In December 2018, before the original scheduled sentencing, the Government provided the defense with a summary of an interview of another individual related to the alleged false statement. (Id.) [my emphasis]

It then describes details about the Jeffrey Jensen review not included in the government motion to dismiss, leading to an argument that might be viewed as brown-nosing about how good Judge Sullivan’s standing motion for Brady is if it didn’t, along the way, ignore that Sullivan has already ruled this stuff isn’t Brady and even reviewed some of the files (the Mary McCord and Sally Yates 302s) that the amici claim were previously unavailable to anyone, including to Sullivan.

In January 2020, Attorney General Barr directed Jeffrey Jensen, the U.S. Attorney for the Eastern District of Missouri, to review the investigation of Gen. Flynn that the FBI had conducted. (Doc. 180-1.) Mr. Jensen had been an FBI agent for ten years and an Assistant U.S. Attorney for another ten years before becoming the U.S. Attorney. On April 24, 2020, the Government made an initial disclosure of documents that had been obtained and reviewed by Mr. Jensen. (Id.) On April 29, 2020, the Government made a second disclosure of documents. (Doc. 187-1.) On May 5, 2020, the Government made a third disclosure of documents. (Doc. 193-1.) On May 7, 2020, the Government filed its motion to dismiss, and on May 18, 2020, the Government made a fourth disclosure. (Doc. 210-1.)

[snip]

Viewed from a “big picture” perspective, the Government’s motion to dismiss was a product of the Court’s ongoing effort, through its Standing Order, to promote justice by requiring the Government, at all stages of a criminal proceeding, to examine its case and disclose information that may affect a defendant’s guilt or punishment. As such, the Government’s motion is a successful, and just, outcome.

Before it gets there, though, this brief — signed by Trey Gowdy! — claims that there was no way Flynn could have uncovered facts about FBI almost closing the Flynn investigation before DOJ turned it over in recent weeks.

The information which the Government disclosed about the FBI’s conduct of the investigation was within its exclusive possession. There is simply no way that Gen. Flynn could have known or uncovered these facts, which undermined an essential element of the charge against him, without the Government providing them to him. This is the paradigm of why the Constitution requires the Government to disclose such information to the defense. See Brady v. Maryland, 373 U.S. 83 (1963).

Trey Gowdy, as I’ve noted, was the key player behind this March 2018 report, which cites from one of the documents that, a brief signed by Trey Gowdy argues, was totally unavailable to Flynn or anyone else outside of government when he reallocuted his guilty plea in December 2018. Here’s the passage that Trey Gowdy helped write in 2018, giving Flynn nine months notice (even ignoring the congressional staffers providing it directly) that they kept the investigation into Flynn open because of his calls to Kislyak.

Director Comey testified that he authorized the closure of the CI investigation into General Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak.

In short, the best argument the frothy right can make in a brief signed by Trey Gowdy is that poor General Flynn must be let free because he shouldn’t be expected to read anything that Trey Gowdy has a hand in writing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What are the consequences for these individuals?

Well, you know, I don’t wanna, you know, we’re in the middle of looking at all of this. John Durham’s investigation, and U.S. Attorney Jensen, I’m gonna ask him to do some more work on different items as well. And I’m gonna wait till all the evidence is, and I get their recommendations as to what they found and how serious it is.

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

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

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

“In truth, I never lied;” Mike Flynn’s Materially Conflicting Sworn Statements

Amid the discussions of what may happen in the DC Circuit’s review of Mike Flynn’s petition for a writ of mandamus, Judge Emmet Sullivan’s instruction to amicus John Gleeson to review whether Flynn should be held in criminal contempt for perjury has been lost. Indeed, the DC Circuit did not include that part of Sullivan’s order in its order to Sullivan to address Flynn’s petition; it addressed only the question of whether Sullivan must grant the government’s motion to dismiss.

Because few people understand the full scope of Flynn’s conflicting sworn statements — not just before Sullivan but also before the grand jury — I’m reposting and elaborating on that list.

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that:
    • “From the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,”
    • He and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate)
    • “For the most part” “all of that work product [was] about Gulen”
    • When asked if he knew of any work product that didn’t relate to Gulen, Flynn answered, “I don’t think there was anything that we had done that had anything to do with, you know, anything else like business climates or stuff like that”
    • He was not aware of “any work done on researching the state of the business climate in Turkey”
    • He was not aware of “any meetings held with U.S. businesses or business associations”
    • He was not aware of “any work done regarding business opportunities and investment in Turkey”
    • He and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior”
  • January 29, 2020: Mike Flynn submitted a sworn declaration. Among the assertions he made were:
    • “On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI. I am innocent of this crime.”
    • “I gave [Covington] the information they requested and answered their questions truthfully.”
    • “I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak nor do I remember if we discussed the details of a UN vote on Israel.”
    • “My relationship with Covington disintegrated soon thereafter.” [After second proffer session.]
    • “I did not believe I had lied in my White House interview with the FBI agents.”
    • “In the preceding months leading up to this moment [when he agreed to the plea deal], I had read articles and heard rumors that the agents did not believe that I had lied.”
    • “It was well after I pled guilty on December 1, 2017, that I heard or read that the agents had stated that they did not believe that I had lied during the January 24, 2017, White House interview.”
    • “I agreed to plead guilty that next day, December 1, 2017, because of the intense pressure from the Special Counsel’s Office, which included a threat to indict my son, Michael, and the lack of crucial information from my counsel.”
    • “My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace.”
    • “Regretfully I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty.”
    • “In truth, I never lied.”

Three comments about this. First, Flynn has suggested — and his supporters have focused on — that prosecutors promised that Jr wouldn’t be prosecuted. Flynn’s declaration actually stops short of saying prosecutors made this promise.

Second, note that Flynn’s sworn statement conflicts with statements he made to the FBI after his January 24, 2017 interview. For example, his claim not to remember his calls with Kislyak conflicts with 302s cited in the Mueller Report that describe what went on in the calls (though the report cites heavily, though not exclusively, to the one from November 17, 2017, which is the one in which Flynn claims he just repeated what Covington told him to say).

Finally, while Flynn didn’t back off his admission he lied in his FARA filing specifically in his declaration, he does claim that he answered Covington’s answers about his work for Turkey truthfully. In notes that Flynn himself already made public, however, it’s clear he did not, for example where he told his attorneys that the op-ed he published on election day was done for the campaign’s benefit, not Turkey’s.

And his attorneys made much of the fact that he claimed the project started off as being about business climate, which conflicts with his claim that the project was always about Gulen.

DOJ has 600 more pages from Covington (500 pages of evidence and 100 pages of declarations from its lawyers) disputing the claims Flynn has made about him. The timing of DOJ’s motion to dismiss strongly suggests Flynn’s boosters knew they had to act before that Covington material became public. But even without that, Flynn has already provided evidence that Flynn lies to his attorneys resulted in a false FARA filing.

I have no idea whether this will even play into filings at DC Circuit. But unless DC Circuit moves Flynn’s case to another judge (and possibly even then), the case for perjury is still out there in multiple sworn filings.

DC Circuit Orders Judge Sullivan to Respond to Mike Flynn’s Mandamus Petition

While I’ve been deep in the weeds in the misrepresentations floated in an attempt to overturn the Mike Flynn prosecution, several tactical moves have occurred. I want to lay them out here.

As I note below, the amicus Emmet Sullivan appointed, John Gleeson, had asked to address any additional information he needed. In a scheduling order, Sullivan did not specifically address when or whether Gleeson should do that. There are obvious things implicated in the motion to dismiss — most notably, the Flynn-Kislyak transcripts which were cited in the motion but not included as exhibits, as well as any substantiation for the claim that DOJ didn’t already know about the “new” exhibits the many times in the past they took a radically different view on this prosecution.

Also of note: The DC Circuit panel is demanding a response from Judge Sullivan within 10 days, so before Gleeson files his amicus brief. It’s unclear whether Sullivan must write the response to the DC Circuit himself.

May 7: Billy Barr’s DOJ filed a motion to dismiss that provided provably false justification justifying why DOJ was presenting radically different views than it did in January.

May 12: In response to a request to file an Amicus brief, Sullivan told petitioners to hold off; Flynn objected to amici on principles that Sidney Powell was contradicting in real time by reiterating her past support for Sullivan’s appointment of a Special Master in response to DOJ abuse. Flynn also said he’d be cool if Sullivan did dismiss his prosecution.

May 13: Sullivan appointed John Gleeson to oppose the government’s motion to dismiss and also to address whether Sullivan should hold Flynn in criminal contempt for perjury.

May 14: Covington & Burling lawyer John Hall filed a notice of appearance, as if Covington might still get to defend against Sidney Powell’s accusations that they provided incompetent representation to Flynn.

May 15: John Gleeson formally moved to file an amicus brief, proposing that his brief address the following topics and asking Sullivan to set a briefing schedule and oral argument:

I respectfully request permission to submit a brief on or before June 10, 2020, addressing three issues: (1) the legal framework applicable to the Court’s authority with respect to a motion to dismiss brought under Rule 48 of the Federal Rules of Criminal Procedure (including both the constitutional validity of the Court’s authority to deny such a motion and the standard to be applied in deciding one); (2) any additional factual development I may need before finalizing my argument in opposition to the government’s motion in this case; and (3) whether, based on the record before the Court, it should order the defendant to show cause why he should not be held in criminal contempt for perjury.

May 18: DOJ provided Flynn with the Bill Priestap 302 that reportedly would undermine the Motion to Dismiss.

May 19: Sullivan set the following schedule (unless one of the parties asks him to reconsider by May 26):

June 10: The Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020;

June 10: Any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae

June 17: The government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae

June 24: The Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020

June 26: The government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020

July 2: The government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020.

July 16: Oral arguments

May 19: Flynn files a petition for a writ of mandamus before the DC Circuit

May 21: The DC Circuit (including Poppy Bush appointed Karen Henderson, Obama appointee Robert Wilkins, and Trump hack Neomi Rao (who had recused on other Mueller related matters) instructs Sullivan to respond to Flynn’s petition within 10 days (so May 31), specifically citing US v. Fokker Services. Adding: the DC Circuit also invited the government to weigh in during that same 10 day period. While that suggests the conservatives are inviting a pile on, it also may moot the government’s opportunity to petition for a writ of mandamus if Sullivan has an opportunity to actually rule.

Barr’s Micro-Management of the Durham Investigation May Demolish the Premise of Flynn Motion to Dismiss

American Oversight FOIAed records of contacts between Bill Barr and John Durham, whom Barr has ordered to conduct an investigation to undermine the Russian investigation. While there’s no evidence that all of these meetings pertained to the investigation Barr ordered up, they span the period (but start earlier than) when Barr said he was communicating to Durham about the investigation.

People from Barr’s office met with Durham 18 times between March 25 and October 17, 2019. That doesn’t include the trip to Rome Durham and Barr took together last fall.

That is an astounding level of micro-management from an Attorney General.

That — plus records of a meeting on April 12, 2019 where Barr’s aide Seth DuCharme described for DOJ Inspector General Michael Horowitz what he and Durham were working on — may well demolish the premise of DOJ’s Motion to Dismiss the Flynn prosecution.

As I have noted, DOJ adopted a radically different view on both the legitimacy of the investigation into Flynn and the materiality of his lies in submissions filed under Bill Barr last fall and this January than what DOJ argued in the Motion to Dismiss. The only excuse provided — without any kind of declaration to substantiate the claim — was that DOJ had discovered “new” information that made it rethink its past position.

That claim was always sketchy, not least because Judge Emmet Sullivan had actually reviewed some of the most important documents released with the motion. Moreover, FBI already issued a public statement making it clear those documents were not new. In fact, the Bureau had already shared them with both Horowitz’s and Durham’s investigations.

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

If Sullivan and his newly appointed amicus, John Gleeson, acquire information that proves, definitively, that this information was not new to the Flynn prosecution supervisors, up to and including Barr, it may mean DOJ is estopped from adopting its current position because, effectively, having had those documents already, DOJ already committed to the opposite position.

These records provide Gleeson a road map to discover precisely who in the Office of Attorney General was micro-managing Durham’s investigation, including his receipt of documents that Barr’s office now claims (almost certainly falsely) were new to them.

That is, this FOIA response provides the skeleton of the kind of proof that Gleeson can use to argue that DOJ is prohibited from adopting its current stance, because they have no excuse for flip-flopping on a position already adopted in this case.

Sidney Powell Argues Against Herself, Billy Barr, and DOJ in a Petition for Writ of Mandamus

As predicted, Mike Flynn’s legal team has petitioned for a writ of mandamus with the DC Circuit. [Update: Josh Gerstein has a good explainer of what this means here.]

Technically, Sidney Powell is complaining that Judge Emmet Sullivan appointed John Gleeson as an amicus to represent the view that DOJ had taken up until two weeks ago. Although she slipped in Sullivan’s non-action in response to the motion to dismiss (she’s oddly not complaining about Sullivan’s non-action in DOJ’s still pending sentencing memorandum, the first version of which called for prison time).

The district court’s appointment of an amicus curiae to consider additional charges against General Flynn, ECF No. 205; its unnumbered minute order of May 18, 2020, granting amicus pro hac vice status in the case; its order indicating it will grant a schedule for amici, App. 3; and, its failure to grant the Government’s Motion to Dismiss with Prejudice pursuant to Rule 48(a), ECF No. 198.

Of course, Sidney Powell literally wrote a book applauding Judge Sullivan’s authority to do more — to appoint a Special Master — in cases of DOJ abuse. So this is a curious argument for her to take.

But ultimately, she’s not arguing about that, she’s complaining about the non-action, that Sullivan didn’t immediately respond to the government’s motion by dismissing the case. To argue that Sullivan erred by not dismissing the case, she cited an inapt case (which pertains to the terms of a plea agreement at sentencing, not to dismissal after the government has fully briefed sentencing) in a different circuit.

As Judge Posner noted in a much less contentious case, “No statute authorizes the Government to appeal from a denial of the dismissal of a count or case, but we do not think that there can be much doubt that such relief is available by way of mandamus.” In re United States, 345 F.3 450, 452 (7th Cir. 2003). There is even less doubt here, where continuation of the proceedings for the indefinite future will subject the Department of Justice to sustained assaults on its integrity and cast doubt on its authority to terminate criminal proceedings it has determined do not serve the interests of the United States.

As Judge Posner wryly noted in the above-cited case, “The judge . . . is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.” Id. at 453. Here, that person is the signatory of the Government’s Motion to Dismiss, the United States Attorney for the District of Columbia. Like the district judge in In Re United States, the district judge below has taken over the role of prosecutor. “Mandamus serves as a check on that kind of ‘usurpation of judicial power.’” Fokker Servs., 818 F.3d at 750.

Somehow, Powell neglects to mention that Billy Barr has already publicly conceded that Judge Sullivan does get a say here.

Does Judge Sullivan have a say?

Yes. Under the rules, the case can be dismissed with leave of court. Generally, the courts have said that that provision is in there to protect defendants, to make sure the government doesn’t play games by bringing a charge and then dismissing it; bringing another charge, dismissing it. But he does have a say.

Moreover, she misrepresents the status of the case, not least by ignoring DOJ’s past assertions that Flynn’s lies were material, Sullivan’s existing ruling that they were, and DOJ’s silence about whether these new materials are Brady (a claim neither DOJ nor the outside reviewers on this case have raised). Even if it were Brady, though, Flynn has already sworn under oath that he’s not entitled to it, and sworn under oath that he doesn’t want it.

Which brings us to the biggest silence here.

Powell mentions Sullivan’s order to Gleeson to consider whether he should hold Flynn in contempt for his sworn lies, both before this court and to other official proceedings. But she doesn’t argue against it.

Not only is this petition premature (because the action it complains about — appointing an amicus — is something uncontroversial, something Powell is on the record aggressively defending). But because Sullivan included perjury in his order, it makes his order far less reviewable. What court, at any level, is going to hold that a judge has no recourse when someone lies under oath in his court?

Flynn’s team makes much of Sullivan’s comments about treason at his first sentencing, which may well be effective. But that would have been far more effective if this petition weren’t premature for the argument it’s making.

Update: I should explain my claim that the appointment of an amicus was uncontroversial. Flynn has cited a recent Supreme Court precedent holding that Judges cannot appoint an amicus to address new issues. But Gleeson won’t actually do so; he’ll address whether Flynn’s lies were material, something DOJ has been making representations about for years. Gleeson will address the perjury question, too, but that’s something that is within Judge Sullivan’s authority.

Schrodinger’s Materiality: Bill Barr’s DOJ Has an Active Filing Arguing Flynn’s Lies Were Material

Bill Barr’s DOJ has this to say about whether Mike Flynn’s lies to the FBI on January 24, 2017 were material.

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

[snip]

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.

[snip]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

You might be forgiven for believing that Bill Barr’s DOJ didn’t made a vigorous argument to Judge Emmet Sullivan that Flynn’s lies were material, one that remains active before Sullivan, because almost no coverage of recent events concerning Flynn accounts for the posture of the case, in which there are at least four pending decisions before Sullivan. Several of those active representations argue Flynn’s lies were material.

Instead, coverage claims that Bill Barr’s DOJ believes that Flynn’s lies were in no way material. It is true that, in a motion to dismiss the case submitted last week, Bill Barr’s DOJ argued the lies weren’t material.

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

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

I know journalists are used to covering the Trump administration as a series of independent outrages, each one drowning out a prior newly inoperative one. But in courts, statements from a given party are presumed to have continuity, at least until those statements are resolved legally.

DOJ, generally, is assumed to have continuity in any proceeding, even between Administrations, and generally only changes position when the law or an interpretation of it changes, and as such would apply to all affected parties.

That’s all the more true within the span of one Administration. And in this case, Trump’s Acting Attorney General Rod Rosenstein agreed Flynn’s lies were material when he approved false statement charges against Flynn in December 2017, Trump’s Acting Attorney General Matt Whitaker’s DOJ argued Flynn’s lies were material when DOJ moved to sentencing in December 2018, Bill Barr’s DOJ argued “the FBI was engaged in a legitimate and significant investigation,” when it successfully defeated a request to dismiss the prosecution last fall, and Barr’s DOJ argued Flynn’s lies were material in January.

It is true that Barr’s DOJ has provided a claimed basis for changing its mind about the legitimacy of the investigation into Flynn and the materiality of the lies he told. It cites “newly discovered and disclosed information” as well as “recently declassified information.”

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

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

Not only is the reference to “newly declassified information” a tell that this information is claimed only to be new to Flynn, the motion to dismiss does none of the things legal filings are supposed to do to substantiate claims like this. There’s no declaration from Jeffrey Jensen describing the reasons for his review and explaining how, over three years into this investigation, he came to discover “new” information that hadn’t been considered by Rod Rosenstein and Matt Whitaker and Bill Barr or Robert Mueller and Jessie Liu when DOJ had previously argued this was a legitimate investigation. There’s no declaration from a Records Officer explaining how it is that the two files claimed to be new evaded anyone’s attention all these years and proving these documents hadn’t been reviewed by DOJ before. There’s not even a description in the filing specifying what it is that DOJ is claiming to be new, there’s just a citation to docket entries of stuff that was newly turned over to Flynn.

Plus, all of the facts on which this motion to dismiss relies — that the FBI hadn’t found anything in its counterintelligence investigation into Flynn, but decided to keep it open in early January 2017 when they discovered the Kislyak transcripts, and that people in DOJ and FBI had conflicting understandings of the status of the investigation leading up to the interview — has not only been known to DOJ but has been public since March 22, 2018, when Republicans released it in their Russian Report.

Director Comey testified that he authorized the closure of the CI investigation into General Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure was imminent.

[snip]

The Committee received conflicting testimony from Deputy Attorney General  (DAG) Yates, Director Comey, Principal Deputy Assistant Attorney General McCord, and Deputy Director McCabe about whether the primary purpose of the interview was investigating potentially misleading statements to the Vice President, which the Vice President echoed publicly about the content of those calls; a possible violation of the Logan Act; or a desire to obtain more information as part of the counterintelligence investigation into General Flynn.

Sullivan knows well that DOJ knew of this information, because he litigated a long dispute over this information starting in August and wrote an opinion on it in December. He even reviewed two of the 302s the government relies heavily on — those of Mary McCord and Sally Yates — to make sure the summaries DOJ gave to Flynn were sufficient, which is pretty good proof that DOJ knew about them and their representations about the almost-closed investigation and the discussions about the multiple things FBI was investigating. Billy Barr claimed in his interview that this was new to him — something he has not done in a representation to the court — but then described just what appears in the passage from the HPSCI Report, something which was public (and circumstances to which he alluded in his confirmation hearing). In fact, FBI has gone on the record to say that these records had already been shared with DOJ IG (which completed a report in December that didn’t treat them as unusual) and the John Durham inquiry (which began a year ago).

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

So these documents aren’t even new to oversight elements in DOJ outside of the prosecutorial team that argued for the materiality of this case. Because the documents are not new to DOJ, DOJ has offered no valid reason to flip-flop about its view on the legitimacy of the investigation and the materiality of Flynn’s lies.

All the more so given one more detail about this case. Before prosecutors submitted the sentencing memo in January that made an aggressive case for the legitimacy of the prosecution and the materiality of Flynn’s lies, they had to get two extensions to secure the necessary approvals. In December, prosecutors got a week extension for their sentencing memo to get approval from the “multiple individuals and entities” who would need to approve it.

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

Then, on January 6, the government asked for and got one more day.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so. The government respectfully requests that this Court extend the government’s deadline to provide its supplemental sentencing memorandum to Tuesday, January 7, 2020, at 12:00 p.m.

Having twice granted extensions so prosecutors could be sure they got all the approvals they needed for their sentencing memorandum, and absent any claim since they didn’t secure those approvals, Judge Sullivan would be well-justified in treating that sentencing memorandum arguing forcefully for the legitimacy of the investigation into Flynn as the view of the entire DOJ, up to and including the Attorney General.

And since DOJ’s claims to have discovered “new” information since then are not supported by any proof and are in fact refuted by the public record, he has good reason to treat the earlier representations from Bill Barr’s DOJ as the operative one.

In Judge Sullivan’s court, Bill Barr’s DOJ’s claim that Flynn’s lies are material remains an active legal claim in support of sentencing, even while Bill Barr’s DOJ claims something entirely different in opposition to continuing the prosecution. Even Bill Barr has conceded that Judge Sullivan gets to decide whether to accept the motion to dismiss. If Sullivan rejects it, he can move immediately to sentencing, relying on Bill Barr’s DOJ’s argument that Flynn’s lies were material. Bill Barr is arguing with himself here.

Flynn’s supporters have started to argue that Sullivan’s appointment of John Gleeson conflicts with the recent SCOTUS decision in Sineneng-Smith which prohibits courts from seeking out opinions from parties not before the court to present issues that haven’t otherwise been presented.

One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”

That’s not what’s happening here. Judge Sullivan is asking Gleeson to argue the view of a party that remains before the court: that of DOJ, which argued in December 2017 and in December 2018 and in November 2019 and in January 2020 that Flynn’s lies are material and the prosecution just. The issues of materiality have been before the court since 2017, and DOJ has argued for the materiality of Flynn’s lies vigorously. I have no idea what Sullivan plans to do with respect to additional testimony. But even based on the public record as it exists today (not least because the motion to dismiss egregiously misrepresents the exhibits it relies on and in them, presented evidence that the purpose of the Flynn interview was clear), Gleeson could easily substantiate DOJ’s still active representation before Judge Sullivan’s court (in their still-pending sentencing memorandum) that Flynn was rightly prosecuted for material lies to the FBI.

Unlike Trump, Bill Barr doesn’t get to just ignore claims his own DOJ has made in the past. He can claim he has reason to reverse those claims, but there, too, Sullivan has discretion. DOJ would have to ask leave to modify its sentencing recommendation, and provide proof lacking here they have reason to do so. As it stands, however, DOJ has not asked to modify the sentencing recommendation, and thus their claims about materiality remain before Sullivan unchanged, sitting there in the docket right next to Bill Barr’s DOJ’s radically different claims.

There has been some shitty commentary presenting Bill Barr’s motion to withdraw as a Both-Sides issue, but totally misconstruing which are the two sides, claiming it pits DOJ against critics.

The Justice Department argues that the FBI shouldn’t have conducted its Jan. 24, 2017, interview of Flynn, because the bureau was already aware through phone intercepts of what he had discussed with the Russian ambassador and there wasn’t proper justification for continuing the investigation of Flynn. That request to dismiss, put forward by Attorney General William Barr, has been criticized by nearly 2,000 former Justice Department officials and hailed by Trump and his supporters.

But it totally misconstrues the two sides here. They are Bill Barr’s DOJ versus Bill Barr’s DOJ.

This is the rare opportunity where the kind of Both-Sides journalism the Beltway press loves to practice has merit. On one side, there’s Bill Barr’s DOJ, which has a currently active argument that Mike Flynn’s lies were material to a legitimate investigation. On the other side, there’s Bill Barr’s DOJ, which has a different argument (one that conflicts with the exhibits presented with it) that because there was no legitimate investigation at the time, Mike Flynn’s lies were not material.

Billy Barr Put a Firearms Prosecutor in Charge of Reviewing a Counterintelligence Investigation

The NYT published a story yesterday that will be very handy for the amicus that Emmet Sullivan appointed in the Mike Flynn case, John Gleeson. It describes two pieces of evidence that St. Louis US Attorney Jeffrey Jensen (whom Barr ordered to conduct a review of Flynn’s prosecution) and Timothy Shea (whose name was on the motion to dismiss asking Sullivan to dismiss the case) failed to account for in their motion.

Most notably, prosecutors interviewed Bill Priestap two days before the motion to dismiss, on May 5. Priestap’s notes have been portrayed by Flynn’s team as proof that the FBI tried to entrap Flynn. In the interview, Priestap disputed the interpretation of the notes that had already been released a week earlier.

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.

[snip]

Mr. Jensen and Ms. Ballantine, herself a veteran prosecutor, interviewed Mr. Priestap along with another prosecutor, Sayler Fleming, and an F.B.I. agent from St. Louis who was there to memorialize the encounter.

[snip]

Those notes reflected Mr. Priestap’s own thoughts before meeting with F.B.I. leadership to discuss how to question Mr. Flynn, the people said. A footnote in Mr. Shea’s motion included a reference to Mr. Priestap’s ruminations. The motion described them as “talking points.”

The notes also showed that the F.B.I. softened its interview strategy with Mr. Flynn. Officials decided that agents would be allowed to read back portions of the highly classified phone call transcripts to refresh Mr. Flynn’s memory. F.B.I. investigators felt at the time it was important to figure out whether Mr. Flynn would tell the truth in an interview.

The article also reveals the existence of an FBI email, dated April 23, that reflects the Bureau’s view that Prietap’s notes were not Brady material, but gave them to Flynn’s team only because they were not sensitive.

Eventually the F.B.I. agreed to release the documents because they contained no classified or sensitive material, even though they believed they were not required to share them with the defense, according to an email from lawyers in Mr. Boente’s office on April 23.

Finally, the article describes that Jensen started drafting the motion to dismiss “by the beginning of May,” which would be before interviewing Priestap (the FBI’s drafting of the Hillary declination before her interview is regarded as a key sin among the frothy right).

By the beginning of May, Mr. Jensen recommended to Mr. Barr that the charge be dropped, and the team began to draft the motion to dismiss it.

[snip]

As the lawyers digested the interview with Mr. Priestap, some prosecutors expressed concern that they were moving too fast. But other officials pointed out that in less than a week the department was due to respond to Mr. Flynn’s motion to dismiss the case, and argued against proceeding in that matter if they were about to drop the entire case.

So Jensen’s crack review of the propriety of the Flynn prosecution first turned over the document to Flynn, then started drafting the motion to dismiss, and only then decided to ask Priestap about what the notes mean. It will be interesting to discover whether whoever drafted the motion to dismiss had decided the notes were “talking points” before the Priestap interview and just ignored the interview entrely.

The NYT story reveals another detail, however: who, from Jensen’s team, is conducting this review, a St. Louis prosecutor named Sayler Fleming. Fleming’s day job seems to be entirely focused on prosecuting felon possession of firearms cases, along with typical related crimes, car-jacking and drug trafficking. Because of recent Supreme Court decision, that means he or she has fielded a bunch of appeals in recent months.

But nothing in PACER suggests he or she has any experience with counterintelligence at all, or even national security cases.

And that may explain one of the more egregious errors in the motion to dismiss. The motion admits that the case against Flynn, which was never closed, was predicated on both 18 USC 951 and FARA, two different kinds of Foreign Agent laws. But its analysis of the investigative purpose of the January 24, 2017 interview, claims that the FBI was only investigating the Logan Act.

Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act, 18 U.S.C. § 953. See Ex. 3 at 2-3; Ex. 7 at 1-2; Ex. 8 at 1-5, FBI Emails RE: Logan Act Jan. 4, 2017. Yet discussions with the Department of Justice resulted in the general view that the Logan Act would be difficult to prosecute. Ex. 3 at 2-3; Ex. 4 at 1-2, FBI FD-302, Interview of Sally Yates, Aug. 15, 2017 (Sept. 7, 2017); Ex. 5 at 9. The FBI never opened an independent FBI criminal investigation.

The motion adopts expressive language to suggest the investigative team vacillated between whether there was a criminal investigation or not — in the process, falsely suggesting an interview would only be appropriate if there were a criminal investigation.

Deputy Attorney General Yates and another senior DOJ official became “frustrated” when Director Comey’s justifications for withholding the information from the Trump administration repeatedly “morphed,” vacillating from the potential compromise of a “counterintelligence” investigation to the protection of a purported “criminal” investigation. Ex. 3 at 5; compare Ex. 5 at 5 (“[W]e had an open counterintelligence investigation on Mr. Flynn”), with Ex. 4 at 4 (“Comey had said something to the effect of there being an ‘ongoing criminal investigation’”).

It then goes on to suggest that because records searches had yielded nothing in the 18 USC 951 investigation, a call showing Flynn intervened to undermine official US policy with no hint that he did so on Trump’s orders would not by itself be relevant to a Foreign Agent investigation.

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI. Indeed, the FBI itself had recognized that it lacked sufficient basis to sustain its initial counterintelligence investigation by seeking to close that very investigation without even an interview of Mr. Flynn. See Ex. 1 at 4. Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3.

With its counterintelligence investigation no longer justifiably predicated, the communications between Mr. Flynn and Mr. Kislyak—the FBI’s sole basis for resurrecting the investigation on January 4, 2017—did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation. The calls were entirely appropriate on their face.

When the motion gets around to arguing — relying on the transcripts but not providing them — that Flynn’s call was totally cool, it assessed that question in terms of FARA (undisclosed lobbying) not 18 USC 951.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2. They provided no factual basis for positing that Mr. Flynn had violated FARA.

The motion then imagines that counterintelligence investigators would only interview someone about a transcribed call to learn his recollection of what had been said, again suggesting the Logan Act would be the only reason to interview Flynn.

With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime.

These moves in the motion to dismiss were always obviously problematic. The exhibits submitted with the motion, including Priestap’s own notes, make it crystal clear that the purpose of the interview was not primarily to investigate the Logan Act, but to determine whether Flynn was hiding a clandestine relationship with Russia, a question primarily implicating 18 USC 951, and in no way limited to or even primarily about FARA, as one claim in this motion suggests.

As such, the claims made about the counterintelligence investigation affirmatively misrepresent even the exhibits submitted in support of the filing. Plus, as noted, the motion makes claims about the transcripts, doesn’t provide them, but the exhibits provide abundant evidence to suggest those claims are wrong (the op-ed Gleeson wrote last week laying out the addition steps Sullivan might take in response to the motion to dismiss specifically suggests Sullivan order the release of the transcripts). Nor does the motion account for the fact that to this day the public evidence claims (improbably) that Flynn was acting on his own when he made that call, which by itself would support a counterintelligence investigation.

In other words, the motion to dismiss makes obvious errors of fact and claims backed by no evidence (and refuted by the evidence present) pertaining to what FBI’s counterintelligence interests would be when the incoming National Security Advisor, seemingly freelancing, called up the country that just attacked us and undermined the official US policy.

One possible explanation for those errors and omissions is that the one career prosecutor Billy Barr put in place to conduct this review is perfectly suited to chasing down felons brandishing guns, but totally inappropriate to assess a counterintelligence investigation.

Judge Sullivan to Judge Gleeson: Pick Flynn’s Perjury

Since at least last July, I’ve been warning that Sidney Powell’s serial efforts to use Judge Sullivan’s courtroom to rile up the Fox frothers might backfire. In January, I started pointing out that the claims Flynn had made to try to get out of his prosecution presented four materially conflicting sworn statements. Just this morning I pointed out that Sullivan has to figure out what to do with Flynn’s conflicting sworn statements, which are:

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

Judge Sullivan just appointed an old mob prosecutor, John Gleeson, to do just that — as well as to represent the views that a competent government would represent if we had one.

Upon consideration of the entire record in this case, it is hereby

ORDERED that the Court exercises its inherent authority to appoint The Honorable John Gleeson (Ret.) as amicus curiae to present arguments in opposition to the government’s Motion to Dismiss, ECF No. 198, see, e.g., United States v. Fokker Servs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016); Jin v. Ministry of State Sec., 557 F. Supp. 2d 131, 136 (D.D.C. 2008); it is further

ORDERED that amicus curiae shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court’s inherent authority, and any other applicable statutes, rules, or controlling law.

I’m still sorting through the different legal consequences of doing this versus appointing Gleeson as a Special Master. Probably, Gleeson will only have access to the public record of the case, and not the Covington materials prosecutors were just about to unpack, to say nothing of evidence at DOJ proving or disproving that none of the materials submitted last week were new.

For now, though, understand that Powell has been laying these consequences for ten months.