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Mike Flynn Prosecutor Jocelyn Ballantine Tries to Square DOJ’s Crooked Circle

DOJ and Mike Flynn responded to Amicus John Gleeson’s filing arguing that Judge Emmet Sullivan should reject DOJ’s motion to dismiss Flynn’s prosecution today.

Sidney Powell claims Bill Priestap’s attempt to shield Flynn is misconduct

Sidney Powell’s brief was like all her other ones, legally a shit-show, at times making false claims, at others rolling out a word salad designed to impress the frothy right. It did not substantively address Gleeson’s filing but instead mostly repeated the arguments made in support of the petition for mandamus.

Two details are important, however. First, Powell repeatedly argued that both the FBI and DOJ’s prosecutors engaged in misconduct, in the latter case arguing the prosecutors withheld information covered by Brady.

Given the substantial briefing and documentation by the Justice Department of the reasons for dismissal here, based primarily on the Government’s proper recognition that it should correct its own misconduct which included suppression of extraordinary exculpatory evidence, this court has no further role to play than to grant dismissal forthwith. Smith, 55 F.3d at 159; United States v. Hamm, 659 F.2d 624, 631 (5th Cir. 1981).

[snip]

In its ninety-two-page decision denying General Flynn all exculpatory Brady material he requested, the court distinguished this case from United States v. Stevens, Criminal Action No. 08-231 (EGS) (D.D.C Apr. 1, 2009), because in Stevens, the government moved to dismiss the case upon admitting misconduct in the suppression of Brady evidence. ECF No. 144 at 91. That distinction is eviscerated with the Government’s Motion to Dismiss here. Moreover, in Stevens, the government filed a mere two-page motion to dismiss. Ex. 4. Here, the Government has moved to dismiss in a hundred-page submission that includes 86 pages of new documentation that completely destroys the premise for any criminal charges. This evidence was long sought by General Flynn but withheld by the prior prosecution team and its investigators and wrongly denied to him by this court.

[snip]

Amicus elides the reality of the egregious government misconduct of the FBI Agents—particularly that of Comey, McCabe, Strzok, Page, Pientka, Priestap and others who met repeatedly to pursue the targeted “take-out” of General Flynn for their political reasons and those of the “entirety lame duck usic.”

That last reference to the “entirely lame duck usic” refers to some text messages involving Strzok which, she claims, “the defense recently found that were never produced to it by the Government,” which given how the government provided the text messages probably means only that she didn’t look before. The text messages show Strzok describing a conversation with Bill Priestap about withholding the full transcripts of Flynn’s calls with Sergey Kislyak from the Obama White House to avoid having Obama dead-enders politicizing them — precisely the opposite of what her entire argument is premised on!!!.

So Powell’s new smoking gun–the thing she’s using to rile up the frothers–is proof that Strzok tried really hard to protect Flynn from precisely what she claims did him in, a politicized prosecution led by Obama people. In doing so, she presents evidence (and not for the first time) that Strzok tried really hard to protect Flynn.

Jocelyn Ballantine invents entirely new reasons why DOJ is moving to dismiss

The government’s response is the least-shitty argument DOJ has made in defense of abandoning Flynn’s prosecution, yet it still presents new problems for their case.

The government response was signed by a different team of people than have signed anything submitted thus far. Whereas only Timothy Shea — since promoted to be acting DEA Administrator — signed the initial motion to dismiss, and a team including five people from the Solicitor General’s office, including outgoing Solicitor General Noel Francisco himself, outgoing Criminal Division head Brian Benczkowski, in addition to people from the DC US Attorney’s office and career National Security Division prosecutor Jocelyn Ballantine signed the response on the DC Circuit petition for mandamus, this filing includes only the the latter three:

Whereas the Circuit filing necessarily argued a constitutional issue — the limits of a judge’s authority to deny a motion to dismiss the prosecution, this one argued an admittedly overlapping criminal one, one that makes the third different argument justifying the motion to dismiss. Significantly, this is a defense of the motion to dismiss that (unlike the original one) Jocelyn Ballantine, one of the two prosecutors on the case, was willing to sign.

Along the way, Ballantine presents new reasons to substantiate the claim that DOJ couldn’t convince a jury Flynn was guilty, including describing two things that she now claims weren’t in the notes but were in Flynn’s final 302.

According to the final FD-302, when the agents asked Flynn whether he recalled any conversation with Kislyak in which he encouraged Kislyak not to “escalate the situation” in response to the sanctions, Flynn responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” Doc. 198-7, at 6. According to the FD-302, the agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions; Flynn stated that he did not recall such a conversation. Id. The agents’ handwritten notes do not reflect that question being asked or Flynn’s response. See Doc. 198-13, at 2-8.

The final FD-302 also reports that Flynn incorrectly stated that, in earlier calls with Kislyak, Flynn had not made any request about voting on a UN Resolution in a certain manner or slowing down the vote. Doc. 198-7, at 5. Flynn indicated that the conversation, which took place on a day when he was calling many other countries, was “along the lines of where do you stand[ ] and what’s your position.” Id. The final FD-302 also states that Flynn was asked whether Kislyak described any Russian response to his request and said that Kislyak had not, id., although the agents’ handwritten notes do not reflect Flynn being asked that question or giving that response, see Doc. 198-13, at 2-8.

[snip]

The interview was not recorded and the final FD-302 includes two instances where the agents did not record a critical question and answer in their handwritten notes: (1) that agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions, and Flynn stated that he did not recall such a conversation; and (2) that the agents asked whether Kislyak described any Russian response to his request, and Flynn said that Kislyak had not.

This is actually a claim Sidney Powell has made in the past, though I found notes consistent with those questions here, explicitly so with respect to the sanctions conversation:

[Update: Note that, as I first pointed out, the notes here are reversed; Strzok’s are the ones on the left, Pientka’s are the ones on the right.]

Ballantine herself was on a filing stating that, “The final interview report, just like the agent’s handwritten notes, reflect all of the above material false statements” (though that filing did not address whether Flynn was asked about Russia taking Trump’s stance into account; see especially page 5 for the extended discussion that lacks that). And Judge Sullivan agreed, ruling in December that,

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.”

Ballantine–consistent with her past signed filing–does not contest that some of Flynn’s lies are clearly included in the notes, and so doesn’t contest that the notes clearly show Flynn lying at least twice to prosecutors.

Ballantine also further develops the “new thing” that the motion to dismiss relied on to justify flip-flopping on past DOJ stances (though it is the same “new thing” presented in the Circuit filing): the new developments involving essential participants in Flynn’s prosecution:

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.

While this information would definitely make it harder (but in no way impossible, not least because there are witnesses like Mike Pence and KT McFarland to Flynn’s lies) to prove DOJ’s case, as Gleeson pointed out in his brief, DOJ didn’t have to do that — they already have two allocutions of guilt, including one that affirmed Flynn could never again raise such issues! Moreover, all but one of these new “new things” happened before Flynn reallocuted his guilty plea, meaning Ballantine is in no position to argue they justify abandoning the prosecution. Plus, they conflict with the “new things” cited in the Shea motion to dismiss explaining the DOJ flip-flop.

Ballantine creates a case and controversy over whether prosecutorial misconduct occurred

Ballantine presents some things she’s willing to buy off on to argue why DOJ was right to dismiss the prosecution.

But along the way, she contested the central point in Flynn’s argument, that any of this amounted to prosecutorial misconduct.

1 Before Flynn’s 2017 guilty plea, the government provided Flynn with (1) the FBI report for Flynn’s January 24 interview; (2) notification that the DOJ Inspector General, in reviewing allegations regarding actions by the DOJ and FBI in advance of the 2016 election, had identified electronic communications between Strzok and Page that showed political bias that might constitute misconduct; (3) information that Flynn had a sure demeanor and did not give any indicators of deception during the January 24 interview; and (4) information that both of the interviewing agents had the impression at the time that Flynn was not lying or did not think he was lying.

The government subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Doc. 20, at 2. The majority of those materials, over 21,000 pages of the government’s production, pertain to Flynn’s statements in his March 7, 2017 FARA filing, for which the government agreed not to prosecute him as part of the plea agreement. The remainder are disclosures related to Flynn’s January 24, 2017, statements to the FBI, and his many debriefings with the SCO.

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. [my emphasis]

Ballantine directly contradicts the suggestion made in the Shea motion to dismiss, that any of the documents turned over were new or Brady material; they’ve been demoted to “relevant to.” More importantly, she says that Flynn is wrong to claim either that DOJ said there was misconduct (it did not) or that any misconduct occurred.

Now there’s a case and controversy between DOJ and Flynn. DOJ says no DOJ abuse occurred, in this filing quite explicitly. Flynn says it’s why his prosecution must be dismissed.

While it’s not central to the issue before John Gleeson, it is something he can exploit.

Ballantine dances around DOJ’s shitty materiality claims

Particularly given how Ballantine dances around the main reason DOJ claims it moved to dismiss Flynn’s prosecution, because his lies weren’t material.

This motion was better argued all around than the Main DOJ ones, including the one bearing the Solicitor General’s name. And in numerous places, it presents actual nuance and complexity. One key place it does so is where it admits that DOJ has some motions still pending before Sullivan.

Flynn subsequently retained new counsel. Doc. 88, at 2. He then filed a Brady motion, which the Court denied. Doc. 144, at 2-3. In January 2020, Flynn moved to withdraw his guilty plea, asserting ineffective assistance of prior counsel. Docs. 151, 154, 160. The government has not yet responded to this motion. Flynn also filed a motion to dismiss the case for government misconduct. Doc. 162. In February 2020, the government opposed Flynn’s motion to dismiss. Doc. 169. Flynn repeatedly supplemented the motion after receiving the government’s response, Docs. 181, 188, 189; the government has not submitted a further filing responding to the additional allegations.

On May 7, 2020, while those motions remained pending, the government moved to dismiss the case under Federal Rule of Criminal Procedure 48(a). The government first explained a court’s “narrow” role in addressing a Rule 48(a) motion. Doc. 198, at 10 (quoting United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016)). The government then set out its reasons for the dismissal, explaining why it had concluded that continued prosecution was not warranted. Id. at 12-20; see pp. 25-32, infra. Flynn consented to the motion. Doc. 202. [my emphasis]

Already this passage presents problems, because Ballantine doesn’t explain why DOJ opposed Flynn’s motion to dismiss in February but does not now, even though none of her “new things” were new in February.

But she doesn’t mention the still-pending DOJ sentencing memorandum, submitted after all the “new things” that Ballantine laid out were already known. That sentencing memorandum not only suggested Flynn should do prison time, but it also argued not only that Flynn’s lies were material, but that Judge Sullivan should consider Flynn’s material FARA lies in his sentencing.

On December 1, 2017, the defendant entered a plea of guilty to a single count of “willfully and knowingly” making material false statements to the Federal Bureau of Investigation (“FBI”) regarding his contacts with the Government of Russia’s Ambassador to the United States (“Russian Ambassador”) during an interview with the FBI on January 24, 2017 (“January 24 interview”), in violation of 18 U.S.C. § 1001(a)(2). See Information, United States v. Flynn, No. 17-cr-232 (D.D.C. Nov. 30, 2017) (Doc. 1); Statement of Offense at ¶¶ 3-4, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4) (“SOF”). In addition, at the time of his plea, the defendant admitted making other material false statements and omissions in multiple documents that he filed on March 7, 2017, with the Department of Justice (“DOJ”) pursuant to the Foreign Agents Registration Act (“FARA”), which pertained to his work for the principal benefit of the Government of Turkey. See SOF at ¶ 5. These additional material false statements are relevant conduct that the Court can and should consider in determining where within the Guidelines range to sentence the defendant.

[snip]

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

[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]

The defendant now claims that his false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambush-interview” to trap him into making false statements, see Reply at 1. The Circuit Court recently stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019 WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further undermined by the defendant’s efforts over the last four months to have the Court dismiss the case. See Reply at 32.

[snip]

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

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

[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. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

After the most recent “new thing” Ballantine cited (the DOJ IG Report), in a motion that is still pending before Sullivan, she argued that these lies were material. She doesn’t admit it’s still pending or in any other way deal with it. But Ballantine is making an argument here that conflicts with an argument she signed off on (and spent a great deal of time getting approved by all levels of DOJ) in January.

That presents problems for her claim that the motion to dismiss is the “authoritative position of the Executive.”

The Rule 48(a) motion here represents the authoritative position of the Executive Branch,

A still-pending sentencing memo she signed says Flynn’s lies were material, which conflicts with the pending motion to dismiss. Both are the still-authoritative position of the Executive.

She makes things worse by adopting only one part of Shea’s argument about materiality (though this is consistent with the DC Circuit brief). Shea argued the lies were not material, at all.

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.

[snip]

The particular circumstances of this case militate in favor of terminating the proceedings: Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation. Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt, the Government now moves to dismiss the criminal information under Rule 48(a).

[snip]

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.

[snip]

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

[snip]

Even if he told the truth, Mr. Flynn’s statements could not have conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose. See United States v. Mancuso, 485 F.2d 275, 281 (2d Cir. 1973) (“Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation.”); cf. United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (noting that a lie can be material absent an existing investigation so long as it might “influenc[e] the possibility that an investigation might commence.”). Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

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

Shea further argued that Sullivan’s past judgment that these lies were material came before DOJ’s view on the case changed.

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

Ballatine does parrot Shea’s claim that “additional information” has emerged since Sullivan ruled.

In any event, additional information that was not before the Court emerged in the months since the decision that significantly alters the analysis.

The problem, here, is that in her filing, that’s as much a false claim as Shea’s claim to have found “new things” were. Ballantine’s “new things” was all known to the government well before Sullivan ruled.

As to materiality itself, the only part of Shea’s argument about materiality that Ballantine adopts pertains to whether she could prove it.

The government expressed concern specifically about its ability to prove materiality.

[snip]

The government’s Rule 48(a) motion accordingly explained that it doubted whether, in light of those aspects of the record, it should attempt to prove to a jury that the information was objectively material.

Which, as Gleeson has pointed out, doesn’t matter given Flynn’s past guilty plea.

Perhaps because of that, Ballantine adopts a different approach than Shea did in arguing that Sullivan’s past ruling didn’t matter. She argues that only a jury can decide materiality.

But as the Supreme Court has held, determining whether information is material is an essential element of the crime that must be determined by a jury, and cannot be determined as a matter of law by a court. United States v. Gaudin, 515 U.S. 506, 511- 512, 522-523 (1995). Indeed, the materiality inquiry is “peculiarly one for the trier of fact” because it requires “delicate assessments of the inferences a reasonable decision-maker would draw from a given set of facts and the significance of those inferences to him.” Id. at 512 (internal quotation marks and brackets omitted). For that reason, the Court’s determination could not resolve the government’s concerns about its materiality case at trial.

But then she imagines what the jury might think about the materiality of Flynn’s lies that — much of the subsequent developments make clear — actually did affect the investigation into him.

Amicus makes much of the fact that a defendant’s false statements can be material even when the investigators are not deceived by them, accusing the government of asking for “the suspension of settled law for this case, but not for any others.” Gleeson Br. 46-47 (citing United States v. Safavian, 649 F.3d 688, 691-692 (D.C. Cir. 2011) (per curiam)). Contrary to amicus’s assertion (at 46-47), however, that is entirely consistent with the government’s analysis. In Safavian, the D.C. Circuit rejected a defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them.” 649 F.3d at 691. As the government recognized in its motion to dismiss, the fact that the FBI knew at the time it interviewed Flynn the actual contents of his conversations with Kislyak does not render them immaterial. See Doc. 198, at 17 (citing Safavian, 649 F.3d 688 at 691-692). Rather, the fact that the FBI knew the content of the conversations is relevant because it would allow a jury to assess the significance the FBI in fact attached to that truthful information when the FBI learned it; and, absent reason to think that the FBI’s reaction was objectively unreasonable, that would inform the jury’s assessment of the significance a reasonable decision-maker would attach to the information.

Shea’s argument was — as Gleeson made clear — legally indefensible. Ballantine’s is legally more defensible. Except that she has already argued more persuasively against herself, in a still-pending filing that is, like the motion to dismiss, the authoritative position of the Executive Branch.

Ballantine’s argument here is more persuasive then — though inconsistent with — Shea’s. Except that she’s arguing with a still more persuasive Ballantine memorandum that remains before Sullivan.

Not only is DOJ arguing with DOJ, but Jocelyn Ballantine is arguing with Jocelyn Ballantine

With DOJ’s motion to dismiss, Bill Barr’s DOJ argued against what Bill Barr’s DOJ argued in a still pending sentencing memo submitted in January. DOJ’s response in the DC Circuit mandamus petition argued against Bill Barr’s admission that Emmet Sullivan has a say in whether to dismiss the case or not. Now, Jocelyn Ballantine is arguing that DOJ’s past (but still-pending) statements about materiality conflict with its current statements.

The DC Circuit filing and this one conflict with Shea about what the “new things” are justifying such flip-flops.

But crazier still, Ballantine argues that these conflicting statements are the authoritative view, singular, of the Executive.

Ballantine has laid out a case and controversy with Sullivan here — whether her own conduct amounted to misconduct. Sullivan’s amicus, John Gleeson, may well be able to use that to argue that the many conflicting statements from DOJ make it clear there is no authoritative view from the Executive, because it can’t agree with itself — its prosecutor can’t even agree with herself — on a week to week basis.

And if there is no one authoritative authoritative view of the Executive, Sullivan will have a much easier time arguing all this overcomes any presumption of regularity.

Jeff Wall Admits that Any Scrutiny of DOJ’s Motion to Dismiss Flynn Prosecution Will Cause Irreparable Harm to Bill Barr

The hearing in Mike Flynn’s petition for a writ of mandamus just ended.

The key takeaway, given the make-up of the court, is that for the majority of the hearing, Judge Karen LeCraft Henderson seemed clear that it was too early to overturn any action Judge Emmet Sullivan has made. He has the authority to hold a hearing, she was clear. But if he decides not to grant the motion to dismiss, she seemed to indicate, she would favor a writ of mandamus overturning Sullivan’s decision. Henderson clearly believes that Gleeson’s filing, thus far, is intemperate, which is pretty funny given what Sidney Powell has done in this case.

At the very end of the hearing, she invited Principal Deputy Solicitor General Jeff Wall to address a claim made in DOJ’s brief: that DOJ should be permitted to self-correct the harm of a bad faith prosecution. So she may have been reserving that as a reason to rule for Flynn — ultimately ruling instead for DOJ. But her comments through the rest of the hearing suggest this petition will fail.

But the notion this might involve ruling for DOJ is the most interesting part of this hearing. Flynn filed the petition, not DOJ. Powell’s argument for Flynn was predictably flimsy, self-contradictory, and false. Even Judge Neomi Rao, who will clearly rule for Flynn, seemed to be struggling to find a way to agree with Flynn.

The more interesting argument came from Wall. He argued, repeatedly, that DOJ will be irreparably harmed if Sullivan is permitted to hold a hearing on DOJ’s motion to dismiss. In particular, he seemed horrified that Sullivan might require sworn declarations of affidavits.

As Beth Wilkinson, arguing for Sullivan, mentioned, neither Sullivan nor Amicus John Gleeson has called for such a thing. Both are simply moving towards a hearing scheduled for July 16. Wilkinson also noted that District courts hold such hearings all the time. (And they predictably will have to in another case where DOJ has moved to end a prosecution recently, in which — unlike this case — there appears to have been prosecutorial misconduct, Ali Sadr Hashemi Nejad, which I’ll return to).

Wall is literally arguing that DOJ will be permanently damaged if it has to show up and answer for its actions in this case (in particular, to explain why the prosecutors in this case didn’t sign the motion to dismiss).

That Wall argued so forcibly as to the injury that DOJ would suffer if it had to show up and defend its motion to dismiss is all the crazier given that they didn’t file the petition. The only harm that matters here procedurally is any harm to Flynn, not DOJ, and Powell really made no such case.

When Robert Wilkins pointed out that DOJ had not filed this petition, Wall basically asked for a mulligan, the opportunity to file their own mini-writ of mandamus. Judge Henderson responded by asking (as she had more generally) why this case shouldn’t proceed under regular order, in which when DOJ missed the opportunity to file their own writ, they can’t be granted a mulligan to do so after the fact.

Along the way, Wall and Powell both repeatedly misrepresented the status of the case. More importantly, both claimed DOJ’s motion was very detailed, without noting that it also made false claims, claims on which DOJ has reversed itself at the Circuit level. That will matter in a hearing, which may be why Wall was so insistent that a hearing would do real damage to DOJ.

As noted, given Henderson’s questions for the bulk of the hearing, the Circuit will likely deny this petition. But the most striking takeaway is how panicked Wall was that DOJ might be asked to explain itself.

Appointed Amicus John Gleeson Argues DOJ Engaged in Gross Prosecutorial Misconduct in Moving to Dismiss Flynn Prosecution

I’m painting and doing other chores today and so my analysis of the amicus John Gleeson submitted in the Mike Flynn prosecution will have to wait. I did a thread of my initial read of the filing here.

The short version, however, is this.

Gleeson argues there are two bases for denying a motion to dismiss a prosecution: the prosecutor’s reasons for doing so, or clear evidence of gross prosecutorial abuse.

Guided by Rule 48(a)’s text and history, as well as separation of powers principles, there are two grounds for denying leave of court. First, “the requirement of judicial approval entitles the judge to obtain and evaluate the prosecutor’s reasons.” Ammidown, 497 F.2d at 622. Those reasons must be real and credible; where they are demonstrably pretextual, the court may deny leave under Rule 48(a). Second, courts may deny Rule 48(a) motions based on clear evidence of gross prosecutorial abuse. See id.

He then argues that DOJ’s reasons for moving to dismiss are such obviously bullshit, the only explanation for the motion is that Flynn is a political ally of President Trump.

Both grounds for denying leave of court under Rule 48(a) are present in this case. The reasons offered by the Government are so irregular, and so obviously pretextual, that they are deficient. Moreover, the facts surrounding the filing of the Government’s motion constitute clear evidence of gross prosecutorial abuse. They reveal an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.

Of all the places where Gleeson might (and in some cases, does) use DOJ or Barr’s prior statements against DOJ, the most effective one is quoting Barr’s statement that Trump’s tweets about investigations into his flunkies “make it impossible to do [his] job” to substantiate a claim that any DOJ independence has severely broken down.

These [over 100 Trump tweets complaining about the Flynn prosecution] were issued against the background of a severe breakdown in the traditional independence of the Justice Department from the President. As Professor Jack Goldsmith notes, “every presidency since Watergate has embraced policies for preserving DOJ and FBI independence from the President in certain law enforcement and intelligence matters.”57 One component of that independence is “resistance to politicized influence.”58 Yet President Trump has overtly claimed and exercised the “absolute right to do what I want to do with the Justice Department.”59 The Attorney General stated earlier this year that President Trump’s “public statements and tweets” about pending cases “make it impossible to do my job and to assure the courts and the prosecutors in the department that we’re doing our work with integrity.”60

Which leads Gleeson to concede that DOJ is permitted to exercise its prosecutorial discretion to help a Trump ally for sound reasons, not not for pretextual ones.

The Government may permissibly exercise its discretion for sound reasons even if doing so benefits a friend and political ally of the President (who, as noted, tried unsuccessfully to persuade the FBI Director at the time to “let this go,” ECF No. 79-6 at 26). But the Government may not enlist a court in dismissing a case solely because the defendant is a friend and political ally of the President—and where the ostensible reasons advanced for dismissal amount to a thin and unpersuasive disguise. Only by acting as a rubber stamp could the Court presume that all of this is regular and that the Government’s reasons here are anything but pretextual. Unfortunately, what is actually happening in this case is precisely what Rule 48(a) was intended to guard against. If the Executive wishes for the Judiciary to dismiss criminal charges—as opposed to issuing a pardon or taking other unilateral action—the reasons it offers must be real and credible. Its professed concerns about materiality are neither.

Ultimately, Gleeson argues that Judge Emmet Sullivan should deny DOJ’s motion to dismiss, but that he should not hold Flynn in contempt, but instead factor Flynn’s materially conflicting lies into his sentence.

In a Motion Claiming that Appointing an Amicus Is “Unprecedented,” Billy Barr Argues Against Billy Barr Twice More

DOJ has availed itself of the opportunity to provide a response to Mike Flynn’s petition for a write of mandamus at the DC Circuit.

As I’ll show, I think the reason they did so was to make yet another argument that Mike Flynn can lie wherever and about whatever, but those lies may never be deemed material to a proceeding, and therefore he must go scot-free. Along the way, however, DOJ argues that merely appointing an amicus is a totally unprecedented act. And to get there, DOJ twice argues against DOJ.

DOJ says only DOJ can determine if Flynn can lie and lie and lie

I’ve long believed that Sullivan’s order that amicus John Gleeson consider whether Flynn should be held in contempt for perjury made Flynn’s challenge more airtight. Indeed, the DC Circuit didn’t even include that among the things it asked to be briefed. Nevertheless, Sullivan included it, mostly to point out that even if the Circuit resolved the motion to dismiss, the question of whether Flynn should be held in contempt remains. Sullivan argues along the way that contempt is part of the court’s inherent authority.

Regardless how this Court resolves the Rule 48 issue, questions remain whether Mr. Flynn should be subject to any sanction pursuant to statute, the Federal Rules, and federal courts’ inherent authority to discipline those who fail to tell the truth under oath and obstruct justice in the courtroom. See 18 U.S.C. §§ 401–402; Fed. R. Crim. P. 42; Chambers v. NASCO, Inc., 501 U.S. 32, 41–44 (1991) (upholding court’s inherent authority to punish “acts which degrade the judicial system, including … misleading and lying to the Court” (quotations omitted)). This factbound inquiry involves well-established Article III powers, and the district court should be permitted to address it in the first instance.

The contempt power is “settled law” that “is essential to the administration of justice.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 (1987). It springs from the court’s Article III responsibility to protect its essential functions, including preserving the integrity of courts and the truthseeking process. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994). Under this inherent power, “a court may issue orders, punish for contempt, vacate judgments obtained by fraud, conduct investigations as necessary to exercise the power, bar persons from the courtroom, assess attorney’s fees, and dismiss actions.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993).

To be clear, a contempt finding or sanction against Mr. Flynn may prove unwarranted. If the representations in his January 2020 declaration are true, they present attenuating circumstances for his prior, contrary statements. But the nature and extent of Mr. Flynn’s reversals under oath—from whether he lied to the government in January and March 2017, to whether he was coerced into pleading guilty, misled by his former attorneys, or improperly dissuaded from withdrawing his guilty plea in 2018 when Judge Sullivan offered that option—raise questions that any judge should take seriously. They thus provide a basis for invoking the district court’s authority to “conduct investigations as necessary.” Id.7

7 Contrary to Mr. Flynn’s suggestion (Pet. 11–17), Judge Sullivan’s appointment of an amicus to brief the contempt power is appropriate. Because contempt implicates core Article III powers, “Courts cannot be at the mercy of another Branch in deciding whether [contempt] proceedings should be initiated.” Young, 481 U.S. at 796. That is why the Federal Rules explicitly authorize the appointment of a special prosecutor to investigate contempt. See id.; see also Fed. R. Crim. P. 42(a)(2). Judge Sullivan’s amicus order is more restrained: It does not appoint Judge Gleeson to prosecute any contempt charge, but merely to address whether initiating a contempt proceeding here would be appropriate, and gives Mr. Flynn the last word on the question

The government must have anticipated this, because it argues at length that Flynn’s lies didn’t obstruct anything, without ever explaining why not. Along the way, they bizarrely argue there’s no evidence of he lied out of contempt for the court, suggesting that this happens all the time.

Petitioner also cannot be prosecuted for contempt because there is no evidence of “contumacious intent.” Brown, 454 F.2d at 1007. Even assuming that petitioner had the intent to commit perjury, that would not establish that he had the “inten[t] to obstruct the administration of justice.” Sealed Case, 627 F.3d at 1238. There is no indication that petitioner pleaded guilty and then moved to withdraw his plea as “part of some greater design to interfere with judicial proceedings.” Dunnigan, 507 U.S. at 93. Rather, the record shows that petitioner—like other defendants who enter pleas they later seek to withdraw— pleaded guilty with the intent to resolve the allegations against him on the best terms he thought possible at the time. Doc. 160-23, at 8-9. Our adversarial system treats plea colloquies and later motions to withdraw as an accepted part of normal judicial proceedings. Fed. R. Crim. P. 11(b), (d). An intent to acquiesce in the prosecution’s charges, even falsely, is not an intent to interfere with judicial proceedings themselves for purposes of contempt under Section 401(1).

DOJ then argues that only DOJ could prosecute Flynn for perjury.

I have zero doubt that Neomi Rao will adopt this view, for present purposes, because she has never met a ridiculous argument she didn’t like. But it would be shameful for any self-respecting judge to do so, as it effectively eviscerates judicial authority.

Appointing an amicus is unprecedented

DOJ then argues that Judge Sullivan did something unprecedented, which is what they use to justify issuing a writ.

III. A Writ Of Mandamus Is Appropriate And Necessary Relief In Light Of The District Court’s Unprecedented Order

Several pages later, after laying out the very high bar for a writ of mandamus, the government describes what Sullivan has done: appoint an amicus.

For the same reasons that the mandamus factors were met in Fokker and In re United States, those factors are met here. The only distinction between the cases is that, in Fokker and In re United States, the district court had entered an order denying the motion, while here the district court has entered an order providing for further proceedings and contemplating additional, court-initiated criminal charges.

The government is basically arguing that even appointing an amicus amounts to deciding against Flynn. Nowhere does the government claim that Flynn would be injured by this amicus, and Flynn’s only claim to injury is the delay (he himself is responsible for over a year of delay on this case).

Billy Barr argues against Billy Barr

Appropriately, for a DOJ that has refuted its repeated claims that Flynn’s lies were material by arguing they weren’t material, Billy Barr once against argues against Billy Barr.

This brief does so in two ways.

As I’ve noted, DOJ needs some kind of explanation for what changed their opinion. In front of Sullivan, they argued they had gotten “new” information, none of which is new.

Jocelyn Ballantine is (inexplicably) on this brief. She cannot argue those other things are new, because she knew all of them when she argued, in the past, that Flynn’s lies were material.

So this brief, while presenting all that other not-new information (without making any of the arguments necessary to justify DOJ’s flip-flop), doesn’t argue that it is new.

Instead, this brief argues that the investigation into Peter Strzok and Andrew McCabe is “new.”

Thereafter, new information emerged about essential participants in the investigation. Strzok was removed from the investigation due to apparent political bias and was later terminated from the FBI. The second interviewing agent was criticized by the Inspector General for his tactics in connection with the larger investigation. See Doc. 169, at 6-7. And McCabe was terminated after the Department of Justice determined that he lied under oath, including to FBI agents. Office of the Inspector General, U.S. Dep’t of Justice, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (Feb. 2018).

There are several problems with this.

First of all, DOJ never managed to indict McCabe for his alleged lies, and whether he lied is currently being litigated. Also, DOJ IG has reviewed Strzok’s conduct at great length — including the documents that at the District level DOJ claimed falsely were new — and it affirmatively stated that any bias Strzok have did not affect any decision reviewed.

But the most important reason this is outright absurd is that both of these things were public and known to Flynn on December 18, 2018 (indeed, the investigation into Strzok was known to Flynn when he pled the first time). As Beth Wilkinson noted in Sullivan’s response, Flynn disclaimed those things under oath!!!

After being placed under oath again, Mr. Flynn confirmed that (1) he did not wish to “challenge the circumstances” surrounding his FBI interview; (2) by pleading guilty he would be giving up “forever” his right to challenge that interview; (3) he knew at the time of his interview that lying to the FBI was a crime; and (4) he was “satisfied with the services provided by [his] attorneys.” Id. at 7–9. Mr. Flynn also disclaimed any reliance on revelations that certain FBI officials involved in the interview were being investigated for misconduct. Id. at 9.

We’re five months past the time Billy Barr appointed Jeffrey Jensen to go come up with some excuse to dismiss the Flynn prosecution, and DOJ still can’t decide (or find anything) what is new to justify the flip-flop.

But there is an even bigger Billy Barr belly flop in this response. As Wilkinson noted in the Sullivan response, in its motion to dismiss, DOJ acknowledged that it can only dismiss the prosecution with leave of the judge.

The government’s motion acknowledges that Rule 48 does not require Judge Sullivan to serve as a mere rubber stamp.

[snip]

First, the motion acknowledges that a Rule 48(a) dismissal requires leave of the court. Id. at 10. While the government argued that the court’s discretion was “narrow” and “circumscribed,” id., it did not argue that the court lacked discretion altogether.

Barr reiterated this point in his interview with Catherine Herridge.

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.

Now, after Bill Barr’s DOJ has twice said that the Judge has a say, Billy Barr’s DOJ argues that the District Court has no authority to reject it.

Simply put, the district court has no authority to reject the Executive’s conclusion that those reasons justify a dismissal of the charges.

Again, Neomi Rao will have no embarrassment in agreeing even with a seemingly schizophrenic argument that will help Trump out, and she may well bring Karen Henderson along.

But this is an embarrassment. Bill Barr keeps shredding the credibility of the Justice Department by arguing against past arguments he has personally approved, even very recent ones. There’s no longer any pretense they have to make and sustain an argument, only provide words on a page for captive judges to rubber stamp.

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.