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In Opposing Mandamus, Judge Sullivan Notes Schrodinger’s Materiality

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Beth Wilkinson, the attorney representing (with the approval of the Office of US Courts) Judge Emmet Sullivan in Mike Flynn’s mandamus petition has submitted her brief making a very strong case opposing the petition. The brief argues what I have: that DOJ argued repeatedly and forcefully that Mike Flynn’s lies were material — and Judge Sullivan twice agreed — before DOJ flip-flopped and claimed the lies were not material.

Wilkinson lays out three instances where the government has argued Flynn’s lies were material and the District has agreed.

December 1, 2017

The statement of offense recounted three sets of materially false statements. Two involved lies Mr. Flynn told to the FBI, in a January 24, 2017 interview, regarding his contacts with Russia and other countries regarding U.S. foreign policy. Id. at 2–5. The remaining statements involved lies to the DOJ, in documents Mr. Flynn filed on March 7, 2017, about work that he and his consulting firm did for Turkey. Id. at 5.

[snip]

At this hearing, the government represented the basis for its charge. Among other things, the government claimed that “the defendant made material false statements and omissions during an interview with the [FBI] on January 24, 2017” regarding his interactions with Russia, id. at 14; that “[a]t the time of the interview, the FBI had an open investigation into Russia’s efforts to interfere in the 2016 presidential election,” id. at 14–15; and that “on March 7, 2017, the defendant filed multiple documents with [DOJ] … pertaining to a project performed by him and his company for the principal benefit of the Republic of Turkey” where “the defendant made materially false statements and omissions,” id. at 17. The government also provided a detailed description of why each statement was materially false. See id. at 15–18.

December 18, 2018

A full year after Mr. Flynn originally pleaded guilty, the parties filed sentencing memoranda. The government’s memorandum reiterated that Mr. Flynn’s false statements in both the January 2017 FBI interview and the March 2017 DOJ filings were “material” under § 1001. Dkt. 46 at 2–4. Mr. Flynn “d[id] not take issue” with the government’s description of his offense. Dkt. 50 at 7.

[snip]

Only after these repeated offers and colloquies did Judge Sullivan accept Mr. Flynn’s guilty plea to making materially false statements to the government. Id. at 16.

January 7, 2020

In January 2020, the government filed a supplemental sentencing memorandum, reiterating its representations about Mr. Flynn’s guilt. See Dkt. 150 at 5–14. The government again asserted that “this case is about multiple false statements that the defendant made to various DOJ entities.” Id. at 5; see also id. at 9, 12–13, 17 (explaining bases for materiality). The government recommended that Mr. Flynn be sentenced to 0 to 6 months in prison, noting that he had committed a “serious” offense, in a position of “public trust,” that undermined “[t]he integrity of our criminal justice [system, which] depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime.” Id. at 2, 26, 31.

After claiming Flynn’s lies were material three different times, the brief notes, DOJ and Flynn claimed they weren’t.

May 7, 2020

After spending more than two years claiming that Mr. Flynn’s “false statements to the FBI on January 24, 2017, were absolutely material,” Dkt. 132 at 10, the government now claimed that any lies by Mr. Flynn in the same interview were “not … material,” Dkt. 198 at 2.

This flip-flop is one of four things Wilkinson points to that questions any presumption of regularity here. First, she notes that the government has not withdrawn its past filings, including those asserting Flynn’s lies were material.

Fourth, the government has not moved to withdraw any of its prior pleadings in the case, including its sentencing memoranda, or any of the representations it previously made in open court regarding the purported materiality of Mr. Flynn’s false statements.

Then she notes that the government is now claiming that all those past statements, made under the Rules of Professional Conduct requiring accurate representations to the court, were not true.

The relevant facts are set forth in detail above. For several years, the government represented to the district court, across multiple court filings and appearances, that Mr. Flynn was guilty of making materially false statements. As recently as January of this year, the government maintained those representations. And Mr. Flynn repeatedly affirmed his guilt, under oath and penalty of perjury, despite being given multiple opportunities to disclaim it. It was not until this year that Mr. Flynn, and then the government, told the district court that its finding of guilt should be reversed and that the government’s prior solemn representations were legally and factually untrue.

I’ve argued that DOJ has put itself in a position where their current stance may be estopped by all their prior stances. Wilkinson has certainly laid out the record to make that case.

Update: Corrected that Wilkinson only included the times DOJ and Flynn agreed the lies were material, a total of three times. Judge Sullivan has found them to be one more time.

Mueller Soft-Pedaled the Mike Flynn Exchanges with Sergey Kislyak about Israel

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Last Friday night, John Ratcliffe released some of the transcripts of calls between Mike Flynn and Sergey Kislyak (Ric Grenell said ODNI did not have all the transcripts, and Flynn’s 302 reflects a call made on Christmas not included in this batch, though it’s unclear if there are other missing transcripts).

A lot of frothy right wingers have claimed that Robert Mueller misrepresented the call because, while Kislyak raised the sanctions against FSB and GRU officers using the word “sanctions,” Flynn instead focused on the expulsions that were part of President Obama’s sanctions on Russia responding to election interference and other Russian actions. Flynn’s Statement of the Offense treated Obama’s entire Executive Order as the “sanctions” raised in the call, so it’s a nonsensical complaint, and Flynn claimed he did not remember discussing expulsions to the FBI.

Indeed, as I have noted, Mueller actually left out the critical detail that, in Flynn’s December 31 call with Kislyak, he made it clear “the boss is aware” of details Kislyak raised in the December 29 call, making it far more likely Flynn and everyone else lied about Trump’s role in Flynn’s actions.

Plus, on the other lies which Flynn pled guilty to — the ones that virtually all Flynn’s defenders like to ignore — Mueller withheld even more damning information. When describing Flynn’s lies about his conversations with Kislyak on a UN vote over Egypt’s move to declare Israel’s settlements illegal, Mueller suggested that Flynn’s December 22 call to Kislyak was unsuccessful. He asked that Russia vote against or delay the vote, and — as the Statement of the Offense implies — Russia said they would not vote against the resolution.

a. On or about December 21, 2016, Egypt submitted a resolution to the United Nations Security Council on the issue of Israeli settlements.

b. On or about December 22, 2016, a very senior member of the Presidential Transition Team directly FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

c. On or about December 22, 2016, FLYNN contacted the Russian Ambassador about the pending vote. FLYNN informed the Russian Ambassador about the incoming administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution.

d. On or about December 23, 2016, FLYNN again spoke with the Russian Ambassador, who informed FLYNN that if it came to a vote, Russia would not vote against the resolution.

We can’t compare Mueller’s description of that December 22 call with what really transpired, because Ric Grenell chose not to declassify even the one-line description of what happened, much less release the transcripts.

As far as the December 23 call, it is true Kislyak warned Flynn that if sanctioning Israel came up for a vote, Russia would support the resolution.

Kislyak: … We cannot vote, uh, other than to support it.

Flynn: Okay.

Kislyak: That is something, uh, that is, uh, part of the position that we have developed, with the, um, countries in the region for a long period of time.

But what Mueller left out is that, in the December 23 follow-up, Kislyak explained that he had consulted with the “highest level in Russia,” where it was decided that Russia would help Trump delay any vote.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia. Secondly, uh, uh, here we are pointing [PH], uh, taking into account, uh, entirely your, uh, arguments.

Flynn: Yes.

Kislyak: To raise a proposal or an idea of continued consultations in New York. We will do it.

Flynn: Okay.

Kislyak: Uh, to give time for working out something, uh, that would be, would be, uh, less controversial. Flynn: Okay. That. .. That’s good news.

[snip]

Kislyak: But, uh, responding to your, uh, telephone call and our conversations, we will try to help, uh, to~ uh~ postpone the vote and to allow for consultations. Flynn: Okay. That’s .. that’s good.

In his January 24 interview, Flynn outright denied both that he had raised the issue with Kislyak and also that Kislyak had described a Russian response — the response that, the transcript shows, reflects a decision, “at the highest level in Russia,” to help the Trump administration in a way that would be less controversial.

The interviewing agents asked FLYNN if he made any comment to KISLYAK about voting in a certain manner, or slowing down the vote, or if KISLYAK described any Russian response to a request by FLYNN. FLYNN answered, “No.”

What Mueller kept totally secret, however, was that the first excuse Kislyak gave for his call on December 29 was to inform Flynn — and through him the President Elect — that Russia had decided they weren’t going to support Obama’s “principles for the Middle East.”

KISLYAK: Oh, General, thank you very much for calling me back. I was trying to reach you for quite a while because I have several, uh, issues to raise with you —

FLYNN: Uh huh.

KISLYAK: – rather to inform you. If you’ll allow me, one by one.

FLYNN: Please.

KISLYAK: One, uh, since you were interested in the issue of the Middle East and you called me on that issue

FLYNN: Uh huh.

KISL YAK: We wanted to convey to you and through you to the President Elect that we had uh significant reservations about the idea of adopting now the principles for the Middle East, uh, that our American colleagues are pushing for. So we are not going to support it to — in the quartet, or in the Security Council. And we have conveyed to our American colleagues. So in the spirit of full transparency I was asked to inform you as well.

FLYNN: Okay.

KfSLYAK: So it’s not something that we – Russia – are going to support.

FLYNN: Okay that’s good.

Having delivered on Flynn’s request, Kislyak then moves on to say that, since Flynn has suggested there will be a change in “Middle East principles,” Russia would like to know what the US will be doing. It’s in that context that Kislyak makes his ask: that the US participate in the Russian/Turkish “peace” discussion in Astana.

KISLYAK: Secondly~ we think it requires some additional work and everybody has to be on board.

FLYNN: Of course, Ambassador, of course. You know it does. You know it does. [Some talking over each other]

KISLYAK: And especially I think taking into account, now that US policy might uh, be changing or not, we want to understand what is going to be your policy when and if we are to implement things that we are working on.

FLYNN: Right.

KISLYAK: So the second point. it’s also on the Middle East, uh, our specialist on the Middle East say that they are very much interested in working with your specialists on these issues and if you’re available – not you personally, but your specialists – are available even before the –

FLYNN: Mmhm.

KlSLYAK: – President Elect is, has his inauguration on the twentieth, for, uh, we are perfectly available. But also, something more specific, we, uh as you might have seen, are trying uh, to help uh, the peace process in Syria. And today we announced, uh, the agreement that with Turkey and others, we are able to uh agree on and to help the Syrian sides to start working on political process. So we are thinking about an event in Astana, the capital of Kazakhstan –

Only after that (and after agreeing to a secure video chat shortly after inauguration), does Flynn raise his ask, that Russia “not uh, allow this administration to box us in” with the sanctions against Russia.

This probably explains the redacted materials in Sally Yates’ 302 about “specific asks” Flynn was making an d a “back and forth” between Flynn and Kislyak.

It also may explain why KT McFarland, at a time when she was still un-remembering the sanctions calls, likened the Israeli calls to Richard Nixon’s efforts to forestall peace in Vietnam for his own personal benefit.

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she heard what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

In any case, this, was not two separate sets of calls, with Flynn failing to sway Russian behavior the first time and succeeding the second. Rather, both times, Kislyak listened to Flynn’s request, relayed it to the “highest level in Russia,” (which can only mean Putin), and twice elicited the behavior that Flynn wanted.

Which means, on top of all the other reasons this was a counterintelligence problem, Flynn had already secretly accrued a debt to Russia, even before Trump got inaugurated.

As recently as May 7, even Bill Barr’s DOJ wanted to keep secret the full extent of Russia’s efforts to deliver whatever Mike Flynn asked for. I guess now, they’re simply going to flaunt how chummy they were with Russia even as the country moved to hold the country accountable for attacking the US.

“The Boss is Aware:” Trump Learned about Mike Flynn’s Conversations with Sergey Kislyak in Real Time

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As I noted, John Ratcliffe has released the transcripts of at least some of the Flynn-Kislyak calls (Ric Grenell said that he didn’t have all transcripts, and there are certainly other transcripts, at least setting up the meeting at which Jared Kushner asked for a back channel). As I also noted, from the very beginning, Kislyak set up the calls with Flynn such that Russian and Trump were unified against the Democrats (though the common enemy referenced in the calls was ISIS).

But that’s not the most damning part of the transcripts.

As I have repeatedly noted, the Mueller Report is very coy about whether Mueller obtained evidence that Flynn spoke directly with Trump about his calls with Kislyak, going so far as to withhold details of the timeline of events on December 29 (Mueller cites Flynn’s call records, but we know from the Stone trial that he also got Trump’s call records, at least for the campaign period). According to the narrative Mueller laid out, the first time that Flynn claimed to remember discussing the conversation with Trump was on January 3, 2017.

On January 3, 2017, Flynn saw the President-Elect in person and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling the President-Elect about the substance of his calls with Kislyak. 102

Flynn even claimed that he and Trump didn’t speak about the substance of the calls until February 6.

The week of February 6, Flynn had a one-on-one conversation with the President in the Oval Office about the negative media coverage of his contacts with Kislyak. I93 Flynn recalled that the President was upset and asked him for information on the conversations. 194 Flynn listed the specific dates on which he remembered speaking with Kislyak, but the President corrected one of the dates he listed. I95 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions.I96

Flynn’s claimed uncertainty about whether he had discussed the sanctions call with Trump was a key part of Mueller’s analysis of whether Trump fired Jim Comey because Flynn had derogatory information on him.

As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge. In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak. Flynn told McFarland about the substance of his calls with Kislyak and said they may have made a difference in Russia’s response, and Flynn recalled talking to Bannon in early January 2017 about how they had successfully “stopped the train on Russia’s response” to the sanctions. It would have been reasonable for Flynn to have wanted the President to know of his communications with Kislyak because Kislyak told Flynn his request had been received at the highest levels in Russia and that Russia had chosen not to retaliate in response to the request, and the President was pleased by the Russian response, calling it a ” [g]reat move.” And the President never said publicly or internally that Flynn had lied to him about the calls with Kislyak.

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

But the transcript of Flynn’s December 31, 2016 call makes it clear that Mueller had proof that Flynn had talked with Trump about the Kislyak call, because Flynn told Kislyak that the “boss is aware” of the secure video conference that Kislyak wanted to set up immediately after Trump was inaugurated.

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

KISLYAK: yeah.

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

KISLYAK: You’re absolutely right.

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

Flynn might claim that he only told Trump about the video conference and not sanctions (which wouldn’t be remotely credible, given that Flynn was the one who raised the sanctions, not Kislyak). He might claim that any conveyance of the details of the call went to Trump second-hand, perhaps through KT McFarland.

But whatever excuse Flynn would offer (remember, he has been asking for these transcripts since August, so it’s unclear how much of their content John Eisenberg, Reince Priebus, and Mike Pence shared with him in real time), his assurances to Kislyak, offered on December 31, that Trump knew of the request Kislyak had made on the December 29 call makes it quite clear that Flynn knew Trump had learned of the substance of the call via some means within 48 hours of that call.

And then told Mueller he had no idea whether he had shared that information.

From before Day One Mike Flynn Made It Russia and Trump Versus Democrats

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John Ratcliffe has released the transcripts of Flynn’s calls with Sergey Kislyak. They’re utterly damning. I’m sure I’ll be writing about them for some time, but this is the key bit. Flynn raised sanctions himself — even interrupted Kislyak to do so.

And he pitched sanctions against the Russians not just for tampering in our election, but also for abusing our diplomats in Russia, as an attack on Trump.

KISL YAK: Is by security video. Secure video line.

FLYNN: Yeah. Yeah, yeah. I understand. Okay, um, okay. Listen, uh, a couple of things. Number one, what I would ask you guys to do – and make sure you, make sure that you convey this, okay? – do not, do not uh, allow this administration to box us in, right now, okay? Um –

KISLYAK: We have conveyed it. And –

FLYNN: Yeah.

KISL YAK: It’s, uh, ifs uh, very very specifically and transparently, openly.

FLYNN: So, you know, depending on, depending on what uh, actions they take over this current issue of the cyber stuff, you know, where they’re looking like they’re gonna, they’re gonna dismiss some number of Russians out of the country, I understand all that and I understand that~that, you know, the information that they have and all that, but what I would ask Russia to do is to not – is – is – if anything – because I know you have to have some sort of action – to, to only make it reciprocal. Make it reciprocal. Don’t – don’t make it- don’t go any further than you have to. Because I don’t want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?

KISLYAK: I understand what you’re saying~ but you know, you might appreciate the sentiments that are raging now in Moscow.

Then, when Kislyak calls back to tell Flynn that they didn’t respond because of his ask, Kislyak emphasizes that, asserting that the sanctions were targeted at Trump as well as Russia (note, it’s possible Russia intercepted the calls between Trump Transition officials where they said just this, because they weren’t using secure lines precisely to avoid detection by the US government).

KIS LY AK: And I just wanted to tel I you that we found that these actions have targeted not only against Russia, but also against the president elect.

FLYNN: yeah, yeah

KISL YAK: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight. And also …

Thus, from the very start of this Administration, Flynn willingly set up the relationship with Russia such that Russia and Trump’s Administration were allied against Democrats — and anyone else who believed it was wrong for Russia to tamper in our election.

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

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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 Russia — signed 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.

Stealing Elections: The Underlying Assumption behind Billy Barr’s Flip-Flop on the Materiality of Flynn’s Lies

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Marty Lederman has a very long piece assessing DOJ’s motion to dismiss the Mike Flynn case, one that pulls together a lot of the public record (including details, like about DOJ’s January 24, 2017 sentencing memorandum, that haven’t gotten attention other than at this site). As a very sober assessment that criticizes the FBI but lays out the national security implications, it’s well worth reading.

Even after he wades through all those details, though, Lederman argues that the important takeaway isn’t whether Flynn will do prison time or not (he notes, as I have, that Flynn will be pardoned in any case), but instead what this incident says about Bill Barr.

Unfortunately, just as with the public’s anticipation of and reaction to the Mueller investigation, the inordinate focus on whether a particular individual committed one or another offense under the U.S. criminal code is diverting attention from where it ought to be, on much more significant matters of constitutional governance.

Most importantly, as I’ll explain, what’s most alarming and troubling about the DOJ brief itself is not that it asks the court for leave to dismiss the charge against Flynn, but that it depends upon the rather shocking view of the Attorney General and the Acting U.S. Attorney for the District of Columbia that Flynn’s underlying conduct in 2016 and 2017 was unobjectionable and that therefore there wasn’t a “legitimate” basis for the FBI to be investigating Flynn’s secret communications with the Russian Ambassador at all, even though Russia had just completed an elaborate effort to manipulate the American electoral process in order to help elect Donald Trump.

[snip]

There is, however, at least one other possibility—one that’s much more troubling but that doesn’t involve prosecutorial “bad faith,” as such:  It could be, as Charlie Savage recently put it, that Attorney General Barr sincerely “considers to be illegitimate the government’s counterintelligence effort to understand the scope of Russian election interference in 2016 and any links to the Trump campaign.”  That would explain the astounding assertions in the DOJ motion that Flynn’s calls with Kislyak “were entirely appropriate on their face” and that there wasn’t any “legitimate” basis for a counterintelligence investigation, even after Flynn lied to the Vice-President-Elect about the content of the calls.  Indeed, in a recent interview, Attorney General Barr asserted that the FBI investigation was “based on a perfectly legitimate and appropriate call [Flynn] made as a member of the transition.”  According to Barr, there “was nothing wrong with it whatever. In fact, it was laudable.”

If that’s the reason Barr insisted on moving to dismiss the Flynn charge, it raises a far, far greater problem than whether Michael Flynn is or isn’t convicted of a criminal offense.  Such a view reflects an alarming disregard for the constitutional difference between an incumbent President and the incoming administration.  It ignores the harms of engaging in such private diplomacy in secret, without the knowledge of the State Department.  It treats as “laudable” an effort to undermine the incumbent President’s conduct of foreign affairs in real time—and to do so in order to accommodate a hostile nation that had just engaged in a concerted effort to distort the U.S. presidential campaign in order to secure the election of the very President whose agent is engaged in the stealth diplomacy, and where that very President (and/or his agent engaged in the shadow communications) might possibly be in debt to that nation, and/or compromised by it.  It also assumes that the FBI should have turned a blind eye to all this even after several top officials of the new administration made repeated false representations to the public about the new National Security Advisor’s communications with that foreign power, either knowing that the statements were false or, more troubling still, having been assured by Flynn that the communications were very different from what the Bureau knew them to be.  If the Attorney General of the United States believes all of that conduct was “legitimate,” “appropriate” and “laudable,” and that there wasn’t any “legitimate” basis for investigating it, then how can anyone be confident that the Department of Justice under his stewardship will faithfully fulfill its constitutional responsibilities?

I think Lederman is right: Even more than the question of whether Flynn does time is the question of what it means that Barr intervened and — based off no new evidence — weighed in to say that it was laudable that Flynn called up Russia and undermined the punishment Obama imposed after Russia tampered in the election and illegitimate for FBI to investigate why he did so (predictably, the motion to dismiss doesn’t deal with Flynn’s work for Turkey).

But I would go further.

Lederman is rightly offended that Bill Barr has just given sanction to undermining the constitutional transition between one administration and another.

But that’s not all that the FBI was investigating, nor is it what the record suggests Barr is sanctioning.

In his post, Lederman suggests the FBI didn’t take any of the logical steps to chase down Flynn as a counterintelligence concern.

As I hoped I’ve shown above, that was precisely correct—the principal objective of any interview with Flynn should have been to get to the bottom of the potential counterintelligence threat.  FBI Director Comey himself later testified that he sent his agents to interview Flynn on January 24, 2017 at least in part because there was a “disconnect” between what the Vice President was saying in public and what Flynn had in fact said to Kislyak, and Comey wanted his agents “to sit before [Flynn] and say ‘what is the deal?’”  And FBI Counterintelligence Chief Bill Priestap apparently agreed.  His notes from that morning state his view that “if [Flynn] initially lies, then we present him [redacted] and he admits it, document for DOJ, and let them decide how to address it.”

As far as the available public record shows, however, the agents who interviewed Flynn didn’t take that route.  Instead, it appears that Bureau leadership apparently decided before the interview that if Flynn didn’t confirm to the agents what they knew he had said to Kislyak, “they would not confront him or talk him through it.”  (The quote is from a later 302 report of an interview with one of the agents, Peter Strzok.  Unfortunately, the reasons for that decision appear to be redacted from Strzok’s 302 Report.  Nor is it clear who made this tactical decision.)  In the interview itself, Flynn said he couldn’t recall any discussion with Kislyak of the sanctions and expulsions, even after the agents used his own words from those conversations in order to jog his memory (and/or to subtly signal to him that they had a recording).  And then the agents left it at that.  They didn’t confront Flynn with evidence of what he had said to Kislyak; didn’t ask him why he said such things; about who else, if anyone, he discussed the call with, before or after; why he had disregarded the Obama administration’s pointed request that he not have such conversations; why he had lied to Pence, et al.; etc.  In other words, they didn’t do any of the things one might expect investigators to do if their goal was to get to the bottom of the case, and assess the scope and degree of any possible counterintelligence threat, during that interview.  Instead, all they appeared to accomplish was to confirm that Flynn was committed to lying about his calls with Kislyak.

This is the one part of Lederman’s post that I believe is wrong.

On January 24, 2017, the FBI would have learned that Flynn was going to continue to lie about his discussion of sanctions. But the evidence would still have supported an interpretation that Flynn had gone rogue, that he — someone who had been paid directly by Russia in the previous year and met directly with Putin — had decided to undermine all of US policy in response to the Russian operation all by himself.

That interpretation would change.

Moreover, the record shows the FBI did take next steps, but next steps that served to get at the key purpose for Flynn’s lies, to hide that he had consulted with Mar-a-Lago before calling Kislyak. As I have laid out here, the FBI did some call records analysis (on Flynn’s private phone, because he hadn’t used his government issue BlackBerry). That would have disclosed a bunch of calls to Mar-a-Lago beforehand, calls that were clearly inconsistent with Flynn’s claims to the FBI. Ultimately, FBI obtained the devices that first Flynn, and then other members of the Transition had used. Those would show emails explicitly discussing strategy on sanctions. Between getting those communications and getting Flynn to flip, FBI would eventually have gotten KT McFarland to tell her version of the story.

After a year of work, the FBI would have substantiated that Flynn’s lies served to hide his consultation with Mar-a-Lago. Mueller never got him or McFarland or Steve Bannon to admit that Trump weighed in ahead of time (and Mueller was deliberately coy about whether he has phone records suggesting he did).

Ultimately, though, Mueller was never able to answer a key question: whether Trump had ordered Flynn to do what he did.

Although transition officials at Mara-Lago had some concern about possible Russian reactions to the sanctions, the investigation did not identify evidence that the President-Elect asked Flynn to make any request to Kislyak.

As Lederman himself notes, Trump blew off questions about his role in all of this when asked.

Although it’s therefore almost certain Trump knew at least roughly what Flynn planned to say to Kislyak, the Mueller investigation did not find any evidence that Trump directed Flynn to say anything about sanctions.  (Mueller asked Trump specifically about these incidents (see Questions V(b)-(e)), but in his written responses the President … simply ignored those questions, as though they hadn’t even been asked.)  Several weeks later, then-President Trump said in a press conference that although he didn’t direct Flynn to discuss sanctions with Kislyak, “it certainly would have been okay with me if he did.  I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.”

And Lederman notes the part of the January sentencing memo that describes how central a question sanctions were to Mueller’s investigation.

In a sentencing memorandum it filed in January 2020, the Department of Justice explained that after Flynn’s calls with Kislyak and the false stories that Pence and others were purveying, the FBI “did not know the totality of what had occurred between the defendant and the Russians,” and that “determining the extent of [Flynn’s] actions, why [he] took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.”  This was particularly true because “[a]ny 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.”

What he doesn’t consider, however (though he comes awfully close), is the aspect of Mueller’s investigation that considered whether there was a quid pro quo.

In particular, the investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future. Based on the available information, the investigation did not establish such coordination.

That is, Mueller wasn’t just investigating whether Trump was friendly to Russia because he was friendly to Russia or whether he was friendly to Russia out of tacit acknowledgement that Russia had helped him.

Mueller was also investigating (and parts of DOJ may still be investigating) whether Trump entered into one or more quid pro quos in which he accepted help getting elected in exchange for implicit or explicit pay-offs later.

Whether or not Mueller proved a quid pro quo (and there are aspects of this that remain ongoing, or recently were ongoing before Barr’s latest efforts to undermine them), that was an obvious, legitimate topic for investigation after a campaign advisor got approached about Russia’s help in April and after Trump asked Russia for help in the same press appearance where he offered to recognize Russia’s annexation of Crimea.

That’s what FBI’s investigation ultimately became. That’s the question the answer to which Flynn’s lies about consulting with Mar-a-Lago have obscured. That is the part of the investigation that Flynn’s lies had a material impact on.

Bill Barr is saying it was illegitimate for the FBI to investigate whether the incoming President engaged in a quid pro quo to get elected and therefore Flynn’s lies that hid key details needed to answer that question are not material to any investigation that FBI should be engaging in.

And he’s saying it just before campaign season begins again in earnest.

On the Two ECs Opening the Investigation into Mike Flynn

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A number of people have pointed me to this opinion piece, written by former top FBI guy, Kevin Brock, arguing that the Electronic Communication opening the Crossfire Hurricane investigation proves that the Trump campaign was investigated without justification. It bases that claim on several complaints:

  • It doesn’t fit what Brock deems to be a normal EC because:
    • It doesn’t have a “To” line
    • Peter Strzok both opened and approved it
    • It redacts the names of people who, Brock says, should be more senior than Strzok
  • It opened (Brock says) as a FARA investigation, without explaining why subjects of the investigation are subjects
  • Strzok justified the investigation by saying it served to determine if Trump’s people wittingly or unwittingly were working with Russia, without justifying a FARA investigation

From there, Brock claims that because there’s no articulation tying the evidence to those being investigated, the EC is proof the entire investigation was made up.

Ultimately, there was no attempt by Strzok to articulate any factors that address the elements of FARA. He couldn’t, because there are none. Instead, there was a weak attempt to allege some kind of cooperation with Russians by unknown individuals affiliated with the Trump campaign, again, with no supporting facts listed.

What this FBI document clearly establishes is that Crossfire Hurricane was an illicit, made-up investigation lacking a shred of justifying predication, sprung from the mind of someone who despised Donald Trump, and then blessed by inexperienced leadership at the highest levels who harbored their own now well-established biases.

The piece is more worthwhile than most pieces on the investigation. But there are several problems with it.

First, Brock doesn’t mention what is apparent when reading this document in context (but is not if you’re unfamiliar with the context and ignore the redactions). When you combine the document with what Bill Priestap says the Australian tip included, the document makes clear that George Papadopoulos specifically tied the campaign’s own plans to win the election by using dirt on Hillary Clinton to Russia’s offer to help in the process of using dirt on Hillary to win the election.

Papadopoulos said Trump would win because they had dirt on Hillary and then suggested Russia could “assist this process” — that is, using dirt to win the election — by anonymously releasing information damaging to Hillary.

The “this process” hidden behind the redaction is “using dirt to win the election.” The antecedent of “this process” must be (because that description does not and could not appear anywhere else), using dirt to win the election.

It is, perhaps, a subtle thing. But in context as the FBI received it, Papadopoulos tied Russia anonymously dropping dirt on Hillary to the centrality of dirt on Hillary in the Trump campaign’s plan to win.

Of course, to know that, you’d have to read the DOJ IG Report on Carter Page, which explains how the investigation got opened and specifically addresses some of the items that Brock raises. For example, the report cites multiple people putting the Australian tip in context with the ongoing investigation into the DNC hacks.

According to Priestap, he authorized opening the Crossfire Hurricane counterintelligence investigation on July 31, 2016, based upon these discussions. He told us that the FFG information was provided by a trusted source-the FFGand he therefore felt it “wise to open an investigation to look into” whether someone associated with the Trump campaign may have accepted the reported offer from the Russians. Priestap also told us that the combination of the FFG information and the FBI’s ongoing cyber intrusion investigation of the DNC hacks created a counterintelligence concern that the FBI was “obligated” to investigate.

The report also describes several people involved in the decision whose names remain redacted — the Intel Section Chief and the OGC Unit Chief — who might be the redacted names (as well as Bill Priestap).

It describes why Strzok, and not any case agent, opened the investigation.

After Priestap authorized the opening of Crossfire Hurricane, Strzok, with input from the OGC Unit Chief, drafted and approved the opening EC. 175 Strzok told us that the case agent normally drafts the opening EC for an investigation, but that Strzok did so for Crossfire Hurricane because a case agent was not yet assigned and there was an immediate need to travel to the European city to interview the FFG officials who had met with Papadopoulos.

It explains why the EC didn’t have a subject or subjects.

On July 31, 2016, the FBI opened a full counterintelligence investigation under the code name Crossfire Hurricane “to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.” As the predicating information did not indicate a specific individual, the opening EC did not include a specific subject or subjects. 

Finally, it explains how, with counterintelligence investigations, you might name crimes even when the investigation was into a national security threat.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections.

Note, too, that DOJ IG, after reviewing all this, said the predication of the investigation fell within guidelines for Full Investigations. John Durham — Bill Barr’s designated investigator — did not, but he did say that the predication met the standards of a Preliminary Investigation (which would not have changed any available tools). So in making the argument about this redacted document, Brock is disagreeing not only with DOJ’s IG, but also with Barr’s designated investigator, both of whom have access to unredacted documents.

What’s stranger still is that this piece, dated May 27, doesn’t bother to discuss the opening EC for the Flynn investigation, which was made public on May 7. Consulting it shows, among other things, that DOJ releases documents to Judicial Watch with fewer redactions than they release in their own cases.

It shows that that EC, also, did not include a “To” line.

But it also shows how the individual EC did some of the things Brock claimed had not been done with regards to articulating the investigation, including describing why Flynn was investigated.

The FBI is opening a full investigation based on the articulable factual basis that reasonably indicates that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security. The FBI is predicating the investigation on predetermined criteria set forth by the CROSSFIRE HURRICANE investigative team based on an assessment of reliable lead information received during the course of the investigation. Specifically, CR has been cited as an adviser to the Trump team on foreign policy issues February 2016; he has ties to various state-affiliated entities of the Russian Federation, as reported by open source information; and he traveled to Russia in December 2015, as reported by open source information. Additionally, CR has an active TS/SCI clearance.

The details describe how Flynn accepted multiple paid gigs with Russian quasi-state entities, including a junket to Moscow in December 2015 paid for by one of Russia’s propaganda outlets where he sat next to Vladimir Putin, then months later joined the Trump campaign, all while renewing his security clearance. The Crossfire Hurricane EC laid out the question: Whom would Russia have told they planned to help Trump win the election by dropping dirt on Hillary by providing their own dirt? And the hypothesis in the Crossfire Razor EC is that they might have told that to the guy Russia paid to meet Putin months before he joined the Trump campaign.

In addition, Flynn’s individual EC explains what the FARA designation on the original one, which Brock found so suspicious, means.

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

That is, the goal wasn’t just busting Flynn in a FARA trap. It also — as virtually every Flynn defender likes to ignore — aimed to make sure he wasn’t secretly working for Russia (which is what it looks like when the incoming National Security Advisor calls up Russia and undermines the punishment imposed on Russia for tampering in the election and then lies about doing so to others in the Administration).

Most importantly, however, one of the goals was to see whether Russia was somehow controlling Flynn. It wasn’t (just) about Flynn. It was about potential harm to the US.

For some reason, Flynn’s defenders never want to talk about the damage it does to the United States when someone conducting an attack on the country gives one side advance notice of it.

There may still be reasons to question how the paperwork in this case was handled — though DOJ IG did not, in this specific case. And I find Brock’s questions more useful than the typical Flynn apology that directly contradicts the public record. But if you’re going to question the paperwork, at least consult all of the paperwork that has been made public.

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

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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

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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.

In an Attempt to Absolve Mike Flynn, Eli Lake Accidentally (and Erroneously) Accuses Flynn of “Outright Espionage,” Then Lies about the Evidence

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As part of the campaign to magnify the cover story for Mike Flynn, Eli Lake has written a long, prettily edited piece laying out the same narrative everyone else uses. It has drawn applause from the typical facilitators of gaslighting: Maggie Haberman, Jonathan Swan, and Pepe the Frog.

But it also got plaudits from someone who normally cares about accuracy and facts as much as pretty narrative, Noah Shachtman, which led me to do a long thread pointing out all the times Eli misrepresented the record or outright lied about it. You can read that thread or read the post I did on Glenn Greenwald’s attempt to defend Flynn and Bill Barr, because Eli makes many of the same false claims that Glenn did, as if there’s a script these men are working from.

Unlike Glenn, though, Eli performs the entire Logan Act part of the script. He claims, as if reading from a Sidney Powell script, that the FBI researched the Logan Act solely to keep any case against Flynn alive.

Bringing up this old chestnut suggests that the FBI was looking for any conceivable pretext to keep its Flynn hunt alive. To that end, the FBI officer overseeing the Flynn case, Peter Strzok, eagerly provided a Congressional Research Service report on the history and utility of the Logan Act to FBI lawyer Lisa Page, who was working in the office of Comey’s deputy, Andrew McCabe.1 In his 2019 memoir, McCabe writes that in “high-level discussion at the relevant agencies and at Justice, the question arose: Was this a violation of the Logan Act?”

And then he points to two more references to the Logan Act in support of a claim that the FBI was considering it.

Then Eli steps in it.

Eli then turns to the scope memo describing what potential crimes Mueller was investigating in 2017, makes no mention that there were four things on the list (none of which are the Logan Act), but does claim the FBI was investigating one of two things: the Logan Act, or “outright espionage.”

Moreover, a recently declassified “scope memo” on the Mueller probe—a document defining the range of issues Mueller was to examine—drafted on August 2, 2017, by then Deputy Attorney General Rod Rosenstein authorized Mueller’s team to investigate whether Flynn had “committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition.” The only crime or crimes that could be found in this case would either be outright espionage or a violation of the Logan Act.

Here’s the document in which Eli claims to see Flynn investigated for “outright espionage.”

Somehow, Eli skips the opening memo for the Flynn investigation, which names the crimes actually under investigation in August 2016 (and still, on January 24, 2017, along with the Logan Act): FARA and 18 USC 951. Had Eli examined that memo, his entire Logan Act canard would have been clear, and his silence about the evidence showing that the Flynn interview always prioritized Foreign Agent component would be more damning.

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

It is true that early in 2017, the FBI had decided Flynn’s calls with Russia did not make him a Foreign Agent of Russia (though later obtained evidence may have changed that view). And the Foreign Agent investigation listed in the 2017 memo focused on Flynn’s hidden relationship with Turkey, not Russia.

Nevertheless, in an attempt to defend Flynn, Eli Lake either lies or appears to describe 18 USC 951 as “outright espionage.”

If 18 USC 951 is “outright espionage,” as Eli claims, then an “outright espionage” charge is what Flynn was avoiding when he pled guilty to the false statement charge that Eli is now misrepresenting. Here’s how Brandon Van Grack explained that to Judge Emmet Sullivan at Flynn’s aborted sentencing in 2018.

THE COURT: I think that’s fair. I think that’s fair. Your answer is he could have been charged in that [EDVA] indictment.

MR. VAN GRACK: Yes, Your Honor.

THE COURT: And that would have been — what’s the exposure in that indictment if someone is found guilty?

MR. VAN GRACK: Your Honor, I believe, if you’ll give me a moment, I believe it was a conspiracy, 18 U.S.C. 371, which I believe is a five-year offense. It was a violation of 18 U.S.C. 951, which is either a five- or ten-year offense, and false statements — under those false statements, now that I think about it, Your Honor, pertain to Ekim Alptekin, and I don’t believe the defendant had exposure to the false statements of that individual.

THE COURT: Could the sentences have been run consecutive to one another?

MR. VAN GRACK: I believe so.

THE COURT: So the exposure would have been grave, then, would have been — it would have been — exposure to Mr. Flynn would have been significant had he been indicted?

MR. VAN GRACK: Yes. And, Your Honor, if I may just clarify. That’s similar to the exposure for pleading guilty to 18 U.S.C. 1001.

THE COURT: Right. Exactly. I’m not minimizing that at all. It’s a five-year felony.

MR. VAN GRACK: Yes, Your Honor.

THE COURT: Excuse me one second. (Brief pause in proceedings.)

THE COURT: Yes, Counsel.

MR. VAN GRACK: Your Honor, I’d clarify that the maximum penalty for 18 U.S.C. 951 is a ten-year felony and five years —

According to Flynn’s own sworn statement, that 15 year sentence is what Covington’s lawyers advised he might be facing if he didn’t take a plea deal that (if Flynn behaved) would result in probation.

November 16, 2017, was the first day of the proffer with the SCO. That same evening, after concluding the first proffer, we returned to the Covington offices where my attorneys told me that the first day’s proffer did not go well and then proceeded to talk me through a litany of conceivable charges I was facing and told me that I was looking at the possibility of “fifteen years in prison.”

That Eli considers Flynn’s exposure to 18 USC 951 because he was secretly on Turkey’s payroll “outright espionage” is telling, because — way at the end of the story, as if the Turkish investigation didn’t happen in parallel with the Russian one — Eli finally gets around to mentioning it. When he does, Eli outright lies about the record on Flynn’s work for Turkey. First, he lies that Inovo was the client, not Turkey.

The reason that Flynn put his name to something he knew was not true was that Mueller’s investigators were squeezing him on an unrelated matter.

In August 2016, Flynn took a contract to represent a Dutch firm known as Inovo BV on a project aimed at investigating and defaming Fetullah Gulen, a charismatic Turkish cleric who had become a mortal enemy of Turkey’s president, Recep Tayyip Erdogan, and was living in exile in Pennsylvania. In 2016, Erdogan survived a military coup he blamed on Gulen’s followers. Erdogan’s regime sought Gulen’s extradition back to Turkey, where he would almost certainly have faced the death penalty.

Taking that contract showed horrendous judgment on Flynn’s part. He was the Trump campaign’s national-security adviser and had no business getting himself in the middle of this. That said, it was a potential political problem for Trump, not the national-security threat that many in the resistance now say it was. It’s fair game for journalists and Democrats to make a stink about the Inovo contract. But it was highly unusual for Flynn’s missteps in this case to be the basis for a criminal prosecution on the grounds that Flynn had violated the Foreign Agents Registration Act (FARA).

According to Flynn’s grand jury testimony — almost the only sworn statement that Flynn has not reneged on yet — the work was always being done for Turkey.

Q From the beginning of the project what was your understanding about on whose behalf the work was going to be performed?

A I think at the — from the beginning it was always on behalf of elements within the Turkish government.

[snip]

Q Did he ever mention to you that the project had significantly changed in any way? A He d.id not, no. No, we pretty much stayed on the same track.

Q Did he ever mention to you that the principal beneficiary of the project had changed?

A He did not. He did not, no.

[snip]

Q Let me finish the question if you it be fair to say, as you testified would, General. So would earlier, that the principal beneficiary was the government of Turkey?

A Yes.

Q Or these high-government officials?

A Yeah.

Q Did he ever mention to you that that principal beneficiary or those principal beneficiaries had changed throughout the project ?

A No, no.

Flynn’s testimony describes how, after Ekim Alptekin said the Turkish clients had given him permission to discuss “confidentiality” and budget with Flynn, just days before Flynn sat in on his first classified candidate briefing with Trump, the named client changed to Inovo.

Q Do you see the first part of the email where Mr. Alptekin says, “Gentlemen, I just finished in Ankara after several meetings today with Min. of Economy Zeybekci and M.F.A. Cavusoglu. I have a green light to discuss confidentiality, budget, and the scope of the contract”?

A Mm-hmm.

Q Is this email an example of how Turkish government officials provided the initial approval for the project?

A Sure is.

Q Originally what was the planned source of funding for the project?

A Initially I was told that the Turkish government would likely — you know, may fund it. And then it changed when that came back that they would not fund it, that it would be funded, you know, via different means, via Ekim’s business, basically.

Q Who told you that the Turkish may fund the project originally?

A Bijan. Conversations we had.

Q Do you recall the name of Mr. Alpteikin’s company?

A Inovo.

Not only does Eli outright lie about whom Flynn was working for, he misrepresents the source of Flynn’s registration problems, the reason they became so acute he faced 15 years in prison over them.

Flynn had initially registered the Inovo contract in August 2016 through a less stringent law known as the Lobbying Disclosure Act. He did so on the advice of his counsel at the time. And when Flynn took the contract, that advice was sound. The legal environment for FARA registrations was quite permissive at the time. But at the end of 2017, and with Mueller in hot pursuit and with unlimited resources, Flynn—and his son, Michael Jr.—could have found themselves facing years in prison. So Flynn, in financial ruin and wishing to get his son out of Mueller’s crosshairs, agreed to cooperate.

Eli doesn’t explain that in March 2017, after Trump had been elected, after Flynn had engaged, as incoming National Security Advisor, in discussions about a Russian-Turkish peace plan for Syria, after Flynn had been fired for hiding details of his conversations with Russia, Flynn registered under FARA, but even then lied about having worked for the Turkish government until days before he became National Security Advisor.

This was not, as Eli falsely portrays, about misrepresenting work for a foreign company. It wasn’t even just that, as Flynn, with his Top Secret clearance, was sitting in on Trump’s first classified briefing, he was also inking a deal to secretly work for Turkey. It’s that Flynn continued to lie about it, even in his official FARA filing in March 2017.

And claimed national security hawk Eli Lake, in a bid to make Flynn look less sketchy, repeats the very same lies that got Flynn in such deep legal trouble, Flynn’s cover story for his relationship with the government of Turkey.

It’s one thing to work for foreign entities and hide that fact if you’re a washed out campaign pro, as Paul Manafort was when he hid that he was secretly working for Ukraine’s ruling oligarchs for years. It’s another thing to sit in on classified briefings with a man running for President while hiding that you’re in talks with Turkish government ministers for a half-million dollar deal.

Eli, in a moment of candor or sloppiness, called this “outright espionage.”

That’s Eli’s representation, not mine. In reality, 18 USC 951 is more ambivalent than that, covering a range of secret relationships with foreign governments. But if the facts of Flynn’s relationship weren’t so damning, then why did Eli lie so aggressively to hide them?

Update: Meanwhile, Flynn’s Turkish handler is outraged that the IC might have read his communications with Flynn.