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It’s Not the Four Year Old Counterintelligence Investigation intro Trump We Need to Be Most Worried About — It’s the Ones Bill Barr May Have Killed

The other day, Mike Schmidt advertised a book by claiming that FBI never did any kind of counterintelligence investigation of Trump in parallel with the Mueller investigation. On Twitter, Andrew Weissmann debunked a key part (though not all) of that claim.

The aftermath has led to ongoing debates about what really happened. My guess is that Schmidt’s sources did not have visibility on the full scope of the Mueller investigation, and he didn’t read the Mueller Report, which would have helped him realize that. And while credible reports say Mueller didn’t investigate Trump’s historical financial ties to Russia (while I’ve read neither book yet, the excerpts of Jeff Toobin’s book adhere more closely to the public record than Schmidt’s), the public record also suggests Mueller obtained Trump-related records that most people don’t realize he obtained.

I reiterate that it is far more troubling that a co-equal branch of government — the one with impeachment power — chose not to pursue the same questions about Trump’s financial vulnerabilities to Russia. If you want to express outrage that no one has investigated whether Trump is beholden to Russia, focus some of it on Richard Burr, who suggested Trump’s financial vulnerability to Russia was irrelevant to a report specifically focused on counterintelligence threats.

Still, there’s something still more urgent, one that is getting lost in the debate about what happened three or four years ago.

There were, as of at least April, at least one and probably several investigations implicating counterintelligence tied to Trump, through his top associates. But they tie to the same cases that Billy Barr has undermined in systematic and unprecedented fashion in recent months. It is a far more pressing question whether Barr has undermined counterintelligence investigations implicating Trump’s ties to Russia by ensuring those who lied to protect him during the Mueller investigation face no consequences than what Rod Rosenstein did forty months ago.

Consider Mike Flynn. The most newsworthy thing Robert Mueller said — under oath — over the course of two congressional hearings is that “many elements of the FBI” were looking into the counterintelligence risks created by Mike Flynn’s lies about his communications with Russia.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

As part of Mueller’s analysis about whether Trump fired Jim Comey to stop the investigation into Flynn, he weighed whether the Flynn investigation implicated Trump personally. But he found — largely because Flynn and KT McFarland, after first telling similar lies to investigators, later professed no memory that Trump was in the loop regarding Flynn’s efforts to undercut sanctions with Sergey Kislyak, and Steve Bannon repeated a White House script saying he wasn’t — that the evidence was inconclusive.

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.

[snip]

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.

We’ve since seen transcripts that show Mike Flynn telling Sergey Kislyak in real time that Trump was aware of the communications between the two (and John Ratcliffe is withholding at least one transcript of a call between the men).

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]

Certainly, Russia would have reason to believe that Flynn’s efforts to undermine sanctions were directed by Trump.

In January, a sentencing memo that was delayed so it could be approved by the entire chain of command at DOJ, explained why all this was significant.

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]

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.

Flynn’s forgetfulness about whether Trump ordered him to undermine sanctions went to the core question of whether Trump worked with Russia in their efforts to throw him the election.

And that sentencing memo was the moment when Billy Barr threw two different lawyers — one a lifetime associate of his — into the project of creating a false excuse to undermine the prosecution of Flynn. More recently, Acting Solicitor General Jeffrey Wall told the DC Circuit that Barr had secret reasons for overturning the prosecution.

The Attorney General of course sees this in a context of non-public information from other investigations.

[snip]

I just want to make clear that it may be possible that the Attorney General had before him information that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.

[snip]

It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.

This secret reason is why, Wall suggested, it would cause irreparable harm for DOJ to have to show up before Judge Emmet Sullivan and explain why DOJ blew up the prosecution.

Then there’s Roger Stone. Stone very loudly claimed (improbably) that he could have avoided prison had he not lied to protect Donald Trump. And Trump rewarded him for it, commuting his sentence to ensure he didn’t spend a day in prison.

But at least as of April, an investigation into whether Stone was part of a conspiracy with Russia and/or was a Russian agent — implicating 18 USC 951, not just FARA — was ongoing. Among the things Stone was involved in that Trump refused to answer Mueller questions about was a pardon for Julian Assange, one Stone started pursuing at least as early as November 15. While no sentencing memo has explained this (as it did with Mike Flynn), whether Trump and Stone used promises of a pardon to get Assange to optimize the WikiLeaks releases goes to the core question of whether there was a quid pro quo as part of 2016.

Finally, there’s Paul Manafort, whose close associates, the SSCI Report makes clear, were part of GRU and appear to have had a role in the hack-and-leak. After securing a cooperation deal, Manafort changed his story, and then shared details of what Mueller’s team knew with the President.

Yet, even with Manafort’s ties to the effort to steal our election, the Attorney General used COVID relief to ensure that Manafort would escape prison.

While it’s not clear whether John Ratcliffe, Barr, or the IC made the decision, the redaction process of the SSCI report denied voters the ability to know how closely tied Trump’s campaign manager is with the people who helped steal the election. What we do know is the effort Manafort started continues in Trump’s efforts to extort Ukraine and spew Russian disinformation.

For all three of the Trump associates where we know Barr intervened (there’s good reason to suspect he intervened in an Erik Prince prosecution, too), those people implicate Trump directly in counterintelligence investigations that were, fairly recently, ongoing.

Whether or not there was a counterintelligence investigation implicating Trump on May 20, 2017, after Rod Rosenstein scoped the Mueller investigation, we know counterintelligence investigations have implicated him since. What we don’t know is whether, in an effort to help Trump get reelected, his fixer Billy Barr squelched those, too.

Update: In an appearance for his book, Schmidt said he considered writing it (in 2020) about just the first 26 days of his presidency. It’s a telling comment given that his description of what happened with counterintelligence doesn’t accord with what the Mueller Report itself said happened around 500 days into Trump’s presidency.

Emmet Sullivan’s “Appropriate Dispatch” May Extend past November 3

As noted, yesterday the DC Circuit rejected Mike Flynn’s request that they order Judge Emmet Sullivan to grant the motion to dismiss requested by the government. While the per curiam opinion deferred to Sullivan to resolve the motion to dismiss and left him on the case, the last line of the majority opinion ordered Sullivan to hurry things along.

As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.

Today, in an order effectively written immediately after the Circuit Court order, Judge Sullivan instructed the two sides to resume the process he set back before Flynn moved for a writ of mandamus.

In light of the Opinion and Order issued by the Court of Appeals on August 31, 2020 and Circuit Rule 41(a)(3), which states that an order denying mandamus relief “will become effective automatically 21 days after issuance in the absence of an order or other special direction… to the contrary,” the parties are directed to file a joint status report with a recommendation for further proceedings by no later than September 21, 2020. The parties’ joint status report shall propose a briefing schedule regarding the deadlines for (1) the government and Mr. Flynn to file any sur-reply briefs; and (2) the government, Mr. Flynn, and the Court-appointed amicus curiae to file a consolidated response to any amicus brief of non-Court-appointed amicus curiae. It is FURTHER ORDERED that the parties shall propose three dates and times to hold oral argument. If the parties are unable to agree on a joint recommendation, the joint status report shall include each party’s individual recommendations.

In legal terms, the order requiring a status report on September 21 is also an immediate action. Circuit Court orders don’t go into effect for 21 days, in part to give the parties an opportunity to appeal. So Sullivan couldn’t require any action before September 21. It asks the parties to act immediately.

But it might well stretch past November 3, in any case. At the very least, it might force Billy Barr’s DOJ to explain why they lied to Sullivan to justify blowing up the prosecution of a guy who lied for Trump’s benefit during the last weeks of the election season.

Back when Sullivan laid out the process that the DC Circuit just let him continue on May 19, he gave amicus John Gleeson 21 days to file his opening brief, then a week for each response, with a surreply granted to Flynn and the government from the start.

MINUTE ORDER as to MICHAEL T. FLYNN granting 209 Motion to File Amicus Brief. The following schedule shall govern the proceedings in this case subject to a motion for reconsideration, for good cause shown, filed by no later than 12:00 PM on May 26, 2020: (1) the Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020; (2) any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae shall be filed by no later than 12:00 PM on June 10, 2020; (3) the government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae by no later than 12:00 PM on June 17, 2020; (4) the Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020; (5) the government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020; and (6) 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. Movants seeking leave to file an amicus brief are HEREBY NOTIFIED that the Court will deny any motion for leave to file an amicus brief that fails to strictly comply with the applicable Local Rules. It is FURTHER ORDERED that the Court schedules oral argument for July 16, 2020 at 11:00 AM in Courtroom 24A.

The initial briefs have been submitted, and Gleeson completed it, but did not submit it because it would have been posted on the day Neomi Rao initially upheld Flynn’s petition for a writ.

So Gleeson could presumably submit his reply brief on September 21, and the government and Flynn could — and presumably would want to — submit their surreply two days later, on September 23.

But Sullivan also included time in the original order for the two sides to reply to the other amicus briefs (some of which support Flynn and the government). He originally provided 8 days for that to happen, or 6 after the surreply.

If the parties used the same amount of time, it would put that deadline on September 29.

But — again, according to the original schedule — the hearing would not have happened until two weeks later. According to this schedule, that would put any hearing on October 13. That would put the hearing just three weeks before the Presidential election on November 3, lightening fast for the kind of meticulous opinions Sullivan has written earlier in this case.

By all appearances, Sullivan is responding with appropriate dispatch, as ordered by the Circuit, implementing his prior schedule on the quickest possible track given the earlier deadlines. But appropriate dispatch might still drag this thing out until it becomes clear whether Donald Trump will remain President.

[In parallel news, the Second Circuit has issued a stay on Cy Vance’s subpoena for Trump’s tax returns, and that is virtually guaranteed to drag out past the election as well.]

DC Circuit Sends Flynn Back to Judge Sullivan’s Courtroom

The full DC Circuit (with Greg Katsas recusing) just sent Mike Flynn’s case back to Judge Sullivan. The decision itself is not that interesting because the decision itself is a no-brainer. Flynn (and the government) have alternative remedies available to them, so they should just wait until Sullivan issues an order before seeking that remedy, if appropriate.

The most dramatic claim in the majority opinion is that the case is not moot until the government’s motion to dismiss is granted.

We also hold that the case is not moot. While the Government has filed a motion to dismiss and Petitioner (defendant below) consents, there remains a case or controversy unless and until that motion is granted by the District Court. Cf. Rinaldi v. United States, 434 U.S. 22, 31–32 (1977) (per curiam) (reviewing a district court’s denial of an unopposed Rule 48(a) motion).

The per curiam majority opinion itself is notable for the number of times it lays out ways that Sidney Powell fucked up procedurally (along with the government in some cases): First, in not objecting specifically to the appointment of John Gleeson.

The interest in allowing the District Court to decide a pending motion in the first instance is especially pronounced here, given that neither Petitioner nor the Government raised an objection in the District Court to the appointment of the amicus or more generally to the course of proceedings for resolving the Rule 48(a) motion.

Then, in not challenging Sullivan’s scheduling order as a deprivation of his liberty.

Nor did Petitioner independently challenge before the District Court or this Court the District Court’s orders or their timing on due process grounds as a clearly unwarranted deprivation of liberty.

And finally, in not presenting the harms of the process ordered by Sullivan.

And at this stage, those harms are speculative, especially when the arguments advanced here against that process were not first presented to the District Court by Petitioner or the Government.

There, and later, the panel also described that the harms that a hearing poses to the government are speculative (the kind of judgement that virtually always goes against the non-government party in an appeal).

Petitioner, likewise, argued that the District Judge might “usurp[] the power of the Attorney General to bring additional charges.” Pet’r’s Reply at 18. But those harms are speculative and may never come to pass.

If Flynn doesn’t appeal this, the opinion makes clear, Sullivan can have his hearing and then Flynn (or the government) can file a petition for mandamus.

As others have pointed out, the most important part of this decision is in Thomas Griffith’s concurrence (issued on his last day as a judge, but on the same day he issued a batshit opinion saying that Congress can’t go to court to enforce their own subpoena power). He lays out that the question before the panel is not one of politics, but instead of Constitution.

This proceeding is not about the merits of the prosecution of General Flynn or the Government’s decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the Judiciary and its relationship to the Executive Branch. There are two central problems in this case: defining the scope of the authority of the Judiciary to inquire into the exercise of a core function of the Executive and deciding how the relationship between the district court and our court shapes a challenge to that inquiry. Those questions are far removed from the partisan skirmishes of the day. The resolution of those questions in this case involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on this court disagree. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). And that principled disagreement revisits a long-running debate about the relative powers of the Executive and Judicial Branches. Today we reach the unexceptional yet important conclusion that a court of appeals should stay its hand and allow the district court to finish its work rather than hear a challenge to a decision not yet made. That is a policy the federal courts have followed since the beginning of the Republic, see Judiciary Act of 1789, ch. 20, § 22, 1 Stat. 73, 84; 28 U.S.C. § 1291, and we are aware of no case in which a court of appeals has ordered a district judge to decide a pending motion in a particular way.

It’s unlikely to placate the frothers. But it might lead SCOTUS to deny any appeal.

Even after Learning the FBI Was Investigating, Trump Berated Flynn for Not Being Obsequious Enough to Putin

The Independent has a story that is being taken as news: That Trump berated then National Security Advisor Mike Flynn in from of Theresa May for not telling him that Vladimir Putin had called.

Theresa May’s former Chief of Staff, Nick Timothy, described Trump shouting in the middle of a formal luncheon.

Mr Timothy spoke about a “fairly extraordinary” lunch during which Mr Trump shouted at his then-national security advisor Michael Flynn.

“Somebody just mentioned in passing that Vladimir Putin had asked for a call with him, and right in front us he absolutely shouted down Mike Flynn,” he said.

“Like really shouted. This was at a formal dinner with butlers and fancy crockery – and he was properly shouting at him down the table.”

Mr Timothy said the president yelled: “If Putin wants a call with me you just put him through.”

It’s not actually a new story. Trump told a version of the story himself in real time, to Jim Comey, at the same dinner where he asked for loyalty from the FBI Director. According to Jim Comey’s memo memorializing the January 27 dinner, Trump raised the incident in an attempt to convince Comey that he, Trump, believed Flynn had poor judgment.

He then went on to explain that he has serious reservations about Mike Flynn’s judgement and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s call] and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.”

But the differences in the story — with Timothy emphasizing that Trump was pissed for not putting Trump on the phone with Putin immediately, as compared to Trump’s claim that he was pissed because Flynn scheduled the return call six whole days later — are notable (if subtle), particularly when read in context.

We’ve known for some time that Sergey Kislyak first started tying to schedule a call between Trump and Putin during his December 29, 2016 call with Flynn, when Flynn asked Russia to keep any retaliation against US sanctions measured; the meeting itself was even mentioned in the original David Ignatius column that revealed the call. But we now have some of the transcripts of those calls. Those transcripts show how Kislyak pitched the meeting — and the January 21 date — even before Flynn raised the sanctions (Kislyak was also pushing for public US participation in a Turkish-Russian “peace” initiative on Syria to be held the first week of the Administration, something else included in KT McFarland’s cover story for the call).

KISLYAK: I mean heads up, we wanted you to know this. And the third final uh, point, General, is uh, I am entrust to convey through you to Seer- uh to President Elect, proposal from the Kremlin. Maybe to organize a conversation over the secure video line that starting on the twentieth would be available to Mr. Trump. And it’s there, certainly, uh – uh, between the White House and the Kremlin. And our proposal is to have the conversation on the twenty.first between our Presidents. And the idea of Mr. Putin is first of all to congratulate uh, your President Elect or the President, at the time, and maybe to discuss small number~ briefly, of issues that are on our agenda. So his proposal is on the twenty-first of January.

FLYNN: Okay. Ummm

[Timestamp: 05:20]

KISLYAK: Is by security video. Secure video line.

Then, on December 31, after Kislyak told Flynn that Putin had considered Flynn’s request not to escalate before deciding not to even respond, Flynn offered up that “the boss is aware” of the request for a January 21 secure call. Flynn acknowledged Kislyak was trying to schedule it for the day after the inauguration, but did not commit to that date.

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

KISL YAK: I will

FLYNN: And we can set that up Fairly quickly and well have at I don’t want to go through, I don’t want to go through a big, uh, uh, gyration of, you know, what is on the agenda. I think the agenda just needs to be a couple of simple things uh, and let the two talk about, let the two communicate if, if we end up having it on the 21st, if not

KISL YAK:

Absolutely, FLYNN: the 21st, then what we, we, uh, may end up, you know, sometime very close after just because other, other scheduled events, if that makes sense. Okay. [my emphasis]

Then, the day before inauguration, Kislyak left a message reiterating Russia’s request to speak “after the inauguration,” and reminding Flynn of their conversation — a conversation that had been revealed by David Ignatius, leading Flynn to start lying publicly about the request he had made on it.

KISLYAK: Good morning, General. This [sic] Sergey Kislyak, Russian ambassador. I, uh, apologize that I disturb you but I wanted to check whether you have, um, uh, answer to the idea of our two presidents speaking, uh, re-… uh, after the inauguration. You remember our conversation and we certainly would appreciate any indication as to when it is going to be possible. Uh, I would appreciate your calling back and telling me where we are. Thank you so much. All the best.

And then, according to the public story, Putin called to congratulate Trump on January 21, the call for January 28 got scheduled at some point, and on January 27, Trump had a public meltdown about how all that had gone down. In both versions of the story, Trump was pissed that Flynn hadn’t been responsive enough to Putin. In Trump’s version, however, he claimed to be unaware Putin wanted to call on January 21; Mike Flynn told Kislyak he knew of that all along (and the public record shows that Trump knew that Putin placed the call no later than a presser immediately before the lunch in question).

What happened the day before is instructive. On January 26, 2017, the day before Trump had an embarrassing meltdown because his National Security Advisor wasn’t prioritizing a call with Vladimir Putin that Trump first learned about — in the context of secret requests of Russia — weeks earlier, Trump learned that the FBI not only knew of the calls with Kislyak, but knew the substance of his calls with the Russian Ambassador. Trump learned that the FBI found those calls — in one of which Flynn affirmed that Trump knew of the call request — problematic.

On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel Donald McGahn and informed him that she needed to discuss a sensitive matter with him in person. 142 Later that day, Yates and Mary McCord, a senior national security official at the Department of Justice, met at the White House with McGahn and White House Counsel’s Office attorney James Burnham. 143 Yates said that the public statements made by the Vice President denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially compromised position because the Russians would know he had lied. 144 Yates disclosed that Flynn had been interviewed by the FBI. 145 She declined to answer a specific question about how Flynn had performed during that interview, 146 but she indicated that Flynn’s statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions.147 McGahn came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn’s FBI interview and his contacts with Kislyak. 149

That afternoon, McGahn notified the President that Yates had come to the White House to discuss concerns about Flynn.150 McGahn described what Yates had told him, and the President asked him to repeat it, so he did. 151 McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. § 1001. 152 The President asked about Section 1001, and McGahn explained the law to him, and also explained the Logan Act. 153 The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” 155

When telling the FBI Director about Flynn’s failures to set up a call with Putin on January 21 that Putin’s Ambassador had asked for in the very same call where Trump’s National Security Advisor had made an ask that undermined Obama’s punishment of Russia for tampering in American democracy, Trump described it (in the same conversation where he asked Comey for loyalty) as poor judgment.

It’s unclear why Trump did that, in a dinner meeting fairly obviously designed to undermine FBI scrutiny of why Flynn did what he did.

But if Trump believed that Flynn exercised poor judgment, it would mean he judged that Flynn should have made good on the request that Kislyak made in the same call where Trump , via Flynn, made a request. It would have meant, in context, that Trump believed Flynn should have showed more subservience to Putin.

Another Trump Campaign Manager Indicted for Money Laundering

Steve Bannon and three associates just got indicted in SDNY for defrauding investors in their We Build the Wall “charity,” from which they skimmed about a million dollars.

The alleged fraud here is pretty garden variety: raising funds to pay for a wall and instead pocketing a good chunk of the money.

But it’s significant because it comes just months after Billy Barr tried to replace then-US Attorney Geoffrey Berman with a handpicked successor. Berman responded by insisting that all SDNY investigations would continue as they were proceeding, and he refused to resign until he ensured that his Deputy, Audrey Strauss, would take over.

No one knew this indictment was in the works (and the arrest, by postal agents, makes the surprise more delicious). Which means the other times that Barr has hastily replaced a US Attorney with a flunky could represent similar cases into fraud well beyond the Russian-related crimes we know about. (Note, the Timothy Shea indicted along with Bannon is not the Barr flunky named Timothy Shea whom Barr installed in DC.)Indeed, Erik Prince was a key advisor to this organization; there’s good reason to suspect that an investigation into him got killed at the same time Barr intervened in the Flynn and Stone prosecutions.

Michael Cohen warned the entire Republican Party. If they didn’t stop hanging out with Trump, they would go to jail.

He tried to warn them, anyway.

Trump Tried to Claim Privilege Over a Document Flynn Claimed to Not Remember

I’m beginning to read the SSCI Russia Report. I’m sure I’ll have a running slew of posts as I go.

SSCI was quite peeved about Trump’s expansive claims of Executive Privilege, extending even to its Transition members (SSCI noted that Obama officials were all willing to share details of communications directly with Obama).

One example of a crazy-ass privilege claim came pertained to Mike Flynn’s aide during the Transition, Sarah Flaherty. The White House claimed privilege over a document and provided this description of the document to the committee, which omitted even that it pertained to Russia.

One of these documents was described to Committee counsel as an undated eight-paragraph memorandum with a sticky note dated January 9, 2017, from Flynn to McFarland stating: “re: [a foreign nation] for your consideration.” The paragraphs were further summarized as follows:

(U) 1: Discussion identifying foreign government internal personnel movements.

(U) 2: Recitation of the author’s assessment of the foreign government’s view of areas ,of long-term strategic concern shared with the U.S.

(U) 3: ·Assessment of the foreign government’s view concerning the effect ofpost-1992 U.S. policies for both countries.

(U) 4: Discussion of the author’s view of challenges facing the President (broad), especially in the national security area:

(U) 5: List of issues for the U.S. involving the foreign government and the author’s observation regarding the degree of connection or non-conriection to the foreign government:

(U) 6: Expresses a need for a plan to make progress on strategic matters, not specifically tied to the foreign government.

(U) 7: Author’s assessment that the foreign-government and the people of the foreign nation have substantial goodwill towards the President-elect.

(U) 8: Suggestion/proposal for possibilities of engagement with the foreign government. 32

Don McGahn claimed it was privileged because it had been prepared for a top official and concerned foreign policy.

But SSCI figured out what the document was. It was a memo provided by Robert Foresman, who adapted it from one an oligarch’s associate did.

Based on the description, the Committee identified the memorandum as- a document already in its possession, produced by Robert Foresman-who· was not a member of the Campaign nor the Transition Team-and written to Flynn.34 The Committee also knew from its investigation that Foresman had adapted a substantial part of the memorandum from another document shared by Allen Vine, who is an associate of the Putin-linked Russian oligarch Suleiman Keriniov.35 The Committee’s position was that the document could not be privileged: it was not drafted by a member of the Transition Team and had, in part, originated with a close associate of a Kremlin insider. Committee counsel informed the WHCO of the general contours of these facts (though not specific names or the details of how it had acquired the information). WHCO subsequently dropped its claim of potential executive privilege and produced the document to the Committee.

What makes this expansive claim of privilege all the nuttier is when Mueller asked Flynn about the two meetings he had with Foresman, in what was the last known question Mueller (as opposed to EDVA) asked of him, Flynn claimed he didn’t remember either one.

It’s really not clear Flynn ever really cooperated with Mueller. Which is, I guess, why Billy Barr is going to such lengths to ensure he’ll be rewarded for not doing so.

“These Actions Have Targeted Not Only against Russia, But Also Against the President Elect”

Given the news that Donald Trump is considering pardoning Edward Snowden, there has been a lot of discussion about why Trump would do this.

It’s actually not a deviation from past actions. Just seven days after the election, Trump’s rat-fucker started working on a pardon for Julian Assange, something that Trump offered a very circumscribed answer to Mueller about. He continued to entertain such proposals, and even ordered then CIA Director Mike Pompeo to consider a theory purporting to undermine the Russian attribution of the hack, one understood to be tied to an Assange pardon.

And on March 15, 2017, Trump shared information with Tucker Carlson that would have tipped off Joshua Schulte that the FBI considered him the culprit behind the Vault 7 leaks. While Trump shared that information hours before the FBI searched Schulte’s residence and seized his passports (including a diplomatic passport he never returned to CIA), there’s no evidence that information was made public before the FBI confronted Schulte that night. Had it, though, Trump’s comments might have led Schulte to accelerate a trip to Mexico he already had scheduled. John Solomon would even go on to blame Jim Comey for not pardoning Assange in advance of the Vault 7 releases.

So Trump has repeatedly undermined the prosecution of people who released large amounts of intelligence community secrets. Snowden would just be part of a pattern.

There’s some complaint that Trump opponents — including Adam Schiff — have suggested Trump would do this (dramatically altering his prior stance) because of Putin.

In fact, Russia has deliberately encouraged Trump to believe Russia and Trump were on the same side, opposed to the US intelligence community, since weeks before he was even inaugurated.

When, on December 31, 2016, Sergey Kislyak called Mike Flynn to tell him that his intervention to undermine sanctions on Russia for interfering in the 2016 election had succeeded in persuading Putin to take no action, Kislyak told Flynn that Russia considered the sanctions — for a hostile attack on this country!!! — to be an attack targeting not just Russia, but Trump himself.

KISLYAK: Uh, you know I have a small message to pass to you from Moscow and uh, probably you have heard about the decision taken by Moscow about action and counter-action.

FLYNN: yeah, yeah well I appreciate it, you know, on our phone call the other day, you know, I, I, appreciate the steps that uh your president has taken. I think that it is was wise.

KISLYAK: I, I just wanted to tell you that our conversation was also taken into account in Moscow and …

FLYNN: Good

KISLYAK: Your proposal that we need to act with cold heads~ uh, is exactly what is uh, invested in the decision.

FLYNN: Good

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

FLYNN: yeah, yeah.

“Yeah, yeah,” Trump’s weak-kneed National Security Advisor with 30 years intelligence experience said in reply.

We don’t need to speculate about whether Russia has encouraged Trump to view Russia as an ally against a hostile American Intelligence Community. We have proof. And even Mike Flynn, with a victim complex only a fraction as Yuge as Trump’s own, simply nodded along.

I mean, if Trump does pardon Snowden, by all means he should accept it — it likely would save his life.

But if you believe Trump is considering this out of any belief in whistleblowing or transparency — or even opposition to the surveillance that has ratcheted up and gotten less accountable under his Administration — you’re simply deceiving yourself.

And, yes, there is concrete evidence that Russia has cultivated Trump’s antagonism against the IC — well before Trump’s own actions led the FBI investigate him personally — so much that he might pardon Snowden to harm them.

Billy Barr’s DOJ Throws the Book at Someone Not Named Mike Flynn for Reneging on a Plea Agreement

Last week, the government moved to vacate the guilty plea of Minh Quang Pham because, in violation of his plea agreement, Pham tried to get one of the counts against him thrown out based on an intervening Supreme Court precedent. On top of a new development in a controversial counterterrorism case (one that, because Pham’s admitted actions for AQAP were primarily contributing his graphic design skills, could have interesting implications for Julian Assange’s extradition), the development is an example of what Bill Barr’s DOJ does when defendants not named Mike Flynn renege on the terms of their plea agreement.

Pham is a Vietnamese-Brit who, for a brief period, helped Samir Khan produce Inspire Magazine. Theresa May, while Home Secretary, tried to strip him of his British citizenship, presumably so he could be expelled and drone killed like some other immigrants to the UK with ties to terrorism. When it became clear that effort might fail, the US indicted Pham on Material Support, obtaining military training from a terrorist organization, and possessing a weapon.

There have always been some unexplained aspects of Pham’s story. He claims that he willingly left AQAP, returned to the UK with help from the government, where he lived peaceably until he was arrested. Nevertheless, in four FBI interviews he had while in custody but not recorded (the FBI claimed that because he was still in transit, he was not covered by an FBI rule requiring custodial interviews be recorded), he admitted to getting a bomb-making lesson from Anwar al-Awlaki. He later contested those interviews, but the government used testimony from Ahmed Warsame (another AQAP affiliate was also interrogated in custody while “in transit”) against him. In 2016, Pham pled guilty to three of the charges against him: conspiring to provide material support, conspiring to receive military training, and possessing a weapon. He was sentenced to forty years in prison, of which 30 were tied to the weapons charge, and sent to Florence SuperMax.

Last year in US v Davis, the Supreme Court held that the law used to impose the possessing a weapons charge and with it the long prison sentence against Pham was constitutionally vague.

Over the course of months, Pham worked to get representation to have his case reconsidered under US v Davis, an effort that was badly delayed both by his incarceration in SuperMax and COVID.

Which, after some negotiations between Pham and the government, led to last week’s action. Because US v Davis means Pham’s conviction for the weapons charge must be dismissed, the government argues they are entitled to throw out Pham’s plea deal, and move towards a trial, including new charges.

As set forth in more detail below, the Government respectfully submits that the Court should reinstate the charges contained in the Indictment. The Government dismissed those charges at sentencing pursuant to the Plea Agreement, and only as consideration for the defendant’s guilty plea to the subset of offenses set forth in the Plea Agreement. Neither the terms of the Plea Agreement nor controlling law in this Circuit prevent the Government from reinstating the previous charges against Pham under these circumstances. To the contrary, the defendant’s Plea Agreement expressly preserved the Government’s right to do so should the defendant’s “convictions” be “vacated for any reason.” (Ex. A. at 8). Accordingly, the Government seeks to vacate Pham’s convictions, reinstate the charges in the Indictment, and proceed to trial.

[snip]

Although it is axiomatic that “when a defendant breaches his plea agreement, the Government has the option to . . . treat it as unenforceable,” United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004), the Court need not decide whether Pham’s filing of a Section 2255 motion constituted a breach of the plea agreement to grant the Government’s motion. “Whether [Pham] breached his contract or acted properly in negating it is largely irrelevant to this issue. Despite the change in law, [Pham] remained free to comply with the plea bargain. By taking advantage of the opportunity to vacate his conviction under [Davis], [Pham] chose to void his agreement with the government. That choice relieved the government from its contractual obligations, and explains why double jeopardy does not apply.” Podde, 105 F.3d at 821 n.6 (internal citations omitted).

In addition to moving to try Pham on the five existing charges (presumably, on the four that remain after Davis), the government plans to charge Pham with an attempted terrorist attack, in part to make sure they can charge Pham with something if the existing plea deal is upheld.

Separate from the application for reinstatement of charges, the Government respectfully informs the Court and defense counsel that the Government intends to file additional charges against Pham based on additional evidence secured following his conviction and sentencing.

The evidence at issue includes (1) video recordings showing the defendant constructing and detonating a test explosive device virtually identical to the one Pham told law enforcement was to be used in his planned suicide attack on Americans and Israelis at Heathrow International Airport; (2) video recordings of Pham associating with high-ranking members of AQAP; (3) a video recording of Pham describing his goal of waging jihad and his desire to martyr himself; and (4) a document containing instructions for executing the attack upon Pham’s return to London. The Government reviewed this evidence with defense counsel during a meeting on December 5, 2019, and produced a copy of the evidence to the defense on or about March 24, 2020.

Based on this evidence, the Government expects to seek additional charges related to the defendant’s attempted attack at Heathrow, including a violation of Section 924(c) predicated on the use and possession of a destructive device in furtherance of one or more additional crimes of violence committed in connection with the plot. This conduct, and the anticipated charges based upon it (which are subject both to approval by other components of the Department of Justice and presentation to the grand jury), are not covered by the provisions of the Plea Agreement defining the conduct for which “the defendant will not be further prosecuted criminally by this Office.” (Ex. A at 2). Accordingly, while the Government will not proceed with a superseding Indictment until after the Court rules on the reinstatement of the original charges of the Indictment, the Government expects to seek those additional charges whether or not it is also able to proceed on the previously dismissed counts.

Now, I’m not suggesting, at all, that there’s an equivalence in the actions of Pham and Mike Flynn. Even assuming some of Pham’s complaints about his interrogation and the disproportionate responsibility the government attributed to him over Warsame are true, he still admits he sought to participate in a terrorist organization.

But where a comparison is apt is the plea agreement. Like Pham, the government included language in Flynn’s plea agreement that if his conviction were vacated for any reason, he can be charged for the uncharged conduct tied to his plea agreement — which in Flynn’s case are the Foreign Agent charges that carry a possible sentence of 15 years. Flynn is arguing that he has not yet been convicted, though that’s currently among the many issues under dispute.

And the comparison is apt because (the government has argued, though Flynn disagrees) Flynn reneged on the cooperation included in his plea agreement.

For other people, Bill Barr’s DOJ has thrown the book when a defendant has reneged on his plea deal. In Flynn’s case, however, Barr’s DOJ is doing back flips to try to blow up the existing conviction.

Pham’s case will be quite interesting in any case, if it goes to trial (and the government has effectively already told him they intend to keep him in prison for life anyway, so he has no incentive not to contest this aggressively). But it’s also a worthy lesson in what normally happens when a defendant blows up a plea deal like Mike Flynn has.

There’s Lots of Reason to Think Steve Bannon Lied; But He May Also Have Told the Truth, Once

The LAT has a big scoop on some criminal referrals the Senate Intelligence Committee made on July 19, 2019. The biggest news is that SSCI referred Steve Bannon for his unconvincing story about his Russian back channel — though it’s likely that Bannon cleaned up that testimony in January 2019.

Don Jr

The LAT describes that the Committee believed that the Trump spawn lied about when they learned about the Aras Agalarov meeting.

In the two page-letter, the committee raised concerns that testimony given to it by the president’s family and advisors contradicted what Rick Gates, the former deputy campaign chairman, told the Special Counsel about when people within the Trump campaign knew about a June 9 meeting at Trump tower with a Russian lawyer.

This conflict in stories was previously known; it shows up in the Mueller Report.

It’s interesting primarily because the referral took place after Don Jr’s second SSCI interview, which was on June 12, 2019. It stands to reason that the failson’s willingness to sit for a second interview with SSCI — but not any interview with Mueller — strongly suggests that he had reason to know that Mueller had evidence that SSCI did not. If the only thing that SSCI believed Don Jr lied about was the June 9 meeting, then it suggests they did not know Mueller’s full focus.

Sam Clovis

LAT also says that SSCI believes Clovis lied about his relationship with Peter Smith, the old Republican rat-fucker who made considerable effort to find Hillary’s deleted emails.

The committee also asked the Justice Department to investigate Sam Clovis, a former co-chairman of the Trump campaign, for possibly lying about his interactions with Peter W. Smith, a Republican donor who led a secret effort to obtain former Secretary of State Hillary Clinton’s missing emails.

Clovis could not be reached.

That Clovis lied is not surprising — it’s obvious from the interview reports released thus far in the BuzzFeed FOIA that his story changed radically over the course of a few hours. Notably, however, SSCI only referred Clovis for lying about Peter Smith. It’s pretty clear that Clovis also lied, at least at first, about the campaign’s willingness to cozy up to Russia.

There are four redacted descriptions of people who lied to Mueller in the Report; one of those may explain why Clovis was not charged.

Note that Clovis’ lack of candor about other topics makes his denials that George Papadopoulos told him about the email warning equally dubious.

Erik Prince and Steve Bannon

Finally, the story says SSCI referred Erik Prince and Steve Bannon for their conflicting stories about their back channel to Kirill Dmitriev.

According to the letter, the committee believed Bannon may have lied about his interactions with Erik Prince, a private security contractor; Rick Gerson, a hedge fund manager; and Kirill Dmitriev, the head of a Russian sovereign fund.

It is well-established that Prince lied (indeed, HPSCI also referred his testimony). His lawyer made similar denials to the LAT as he has made elsewhere.

Matthew L. Schwartz, a lawyer for Prince, defended his client’s cooperation with Capitol Hill and Mueller’s office.

“There is nothing new for the Department of Justice to consider, nor is there any reason to question the Special Counsel’s decision to credit Mr. Prince and rely on him in drafting its report,” he said.

Given that DOJ turned over an email from Schwartz to Aaron Zelinsky in response to a FOIA in the Stone case, it’s clear both that Prince was being investigated for issues beyond just his lies about the Russian back channel, but also that it’s likely that Billy Barr interfered with that investigation while he was “fixing” the Mike Flynn and Roger Stone ones, as well.

That’s interesting because SSCI referred Bannon as well.

Like everyone else, it’s not news that he shaded the truth at first. Bannon was scripted by the White House to deny discussing sanctions prior to Mike Flynn’s call to Sergei Kislyak. Bannon’s efforts to shade the trute were apparent from one of his early 302s. A Stone warrant affidavit describes Bannon denying his conversations with Roger Stone about WikiLeaks before he admitted at least one.

When BANNON spoke with investigators during a voluntary proffer on February 14, 201’8, he initially denied knowing whether the October 4, 2016 email to STONE was about WikiLeaks. Upon further questioning, BANNON acknowledged that he was asking STONE about WikiLeaks, because he had heard that STONE had a channel to ASSANGE, and BANNON had been hoping for releases of damaging information that morning.

And for Bannon’s fourth known Mueller interview, he got a proffer, suggesting his testimony changed in ways that might have implicated him in a crime.

What’s most interesting, given how everyone agrees his testimony and Prince’s materially differ, is that he testified to things before the grand jury he subsequently tried to back off. More interesting still, only the relevant parts of Bannon’s grand jury testify got shared with Stone. That means other parts — presumably, given the proffer agreement, the more legally damning parts — remain secret.

SSCI believes that Bannon may have lied to the committee.

But unlike all the others listed here, there’s reason to believe Bannon may also have told the truth to the grand jury, once, possibly relating to his actions involving Erik Prince.

That all may be moot if Barr managed to squelch any Prince investigation while he was negating the Stone and Flynn prosecutions. But he can’t entirely eliminate grand jury testimony.

Bill Barr Deems 11 Months to Charge False Statements, “the Proper Pace”

Last night, in response to Sean Hannity pressuring Billy Barr to be (as Trump stated earlier), “the greatest of all time” with respect to the John Durham investigation, Barr violated DOJ guidelines to reveal there would be a development today (and further developments before the election) in the John Durham investigation.

Perhaps in an attempt to shut down Hannity’s time pressure, Barr said whatever that development was, “the proper pace, as dictated by the facts in this investigation.”

HANNITY: The president said today that he hopes that the Durham report and that you, as attorney general, won’t be politically correct.

I hope that too. Mr. Attorney General, I have spent three years unpeeling the layers of an onion, in terms of premeditated fraud on a FISA court. You have deleted subpoenaed e-mails. You have knowledge we know that they were warned in August of 2016 not to trust that dossier, which was the bulk of information for the FISA warrants.

The sub source in January 2017 confirms, none of that was true, and it was bar talk.

I guess, just as the wheels of justice turn slowly, I feel impatience over it. Can you give us any update?

BARR: Yes, Sean.

Well, first, as to the political correctness, if I was worried about being politically correct, I wouldn’t have joined this administration. As I made clear…

HANNITY: That’s actually a good line, too. OK.

BARR: Yes.

Well, as I made clear, I’m going to call them as I see them. And that’s why I came in. I thought I’m in a — I think I’m in a position to do that.

There are two different things going on, Sean. One, I have said that the American people need to know what actually happened. We need to get the story of what happened in 2016 and ’17 now out. That will be done.

The second aspect of this is, if people cross the line, if people involved in that activity violated the criminal law, they will be charged.

And John Durham is an independent man, highly experienced. And his investigation is pursuing apace. There was some delay because of COVID. But I’m satisfied with the progress.

And I have said there are going to be developments, significant developments, before the election. But we’re not doing this on the election schedule. We’re aware of the election. We’re not going to do anything inappropriate before the election.

But we’re not being dictated to by this schedule. What’s dictating the timing of this are developments in the case. And there will be developments. Tomorrow, there will be a development in the case.

You know, it’s not an earth-shattering development, but it is an indication that things are moving along at the proper pace, as dictated by the facts in this investigation.

That development happened to be the charge of a single False Statements charge against Kevin Clinesmith, the lawyer who altered an email — he said, “to clarify facts for a colleague” — in the Carter Page investigation.

There’s an aspect of the Criminal Information I’ll return to.

But for the moment, consider that Billy Barr has said this Criminal Information, for one count of False Statements, was “moving along at the proper pace.” Per the DOJ IG Report, Clinesmith’s actions were referred to DOJ and FBI in June 2018. That means it has taken DOJ at least 13 months to charge a fairly clearcut false statements case.

[Note: I’ve reread this. DOJ IG referred Clinesmith to FBI for his politicized texts in June 2018. It’s unclear when they referred his alteration of an email. He resigned from FBI on September 21, 2019, so it would have happened before then. I’ve changed the headline accordingly.]

George Papadopoulos was charged, in an investigation that Barr’s boss Donald Trump said was far too long, just over eight months after he lied to the FBI.

Mike Flynn was charged, in an investigation that Trump claims was far too long, just over ten months after he lied to the FBI.

Even in the Roger Stone case, the longest lasting of the investigations into Trump’s flunkies, Mueller charged obstruction just over eight months after Mueller’s team discovered how Stone was threatening Randy Credico and other witnesses.

In short, Billy Barr has now said that the pace Mueller worked at was better than what he thinks is proper.

Billy Barr probably didn’t realize it, but the only thing his politicized Durham investigation has to show thus far is that Trump is wrong when he assails Mueller for the length of his investigation.