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The Guy Investigating the Claimed Politicized Hiring of a Special Counsel Insists that the Hiring of a Special Counsel Cannot Be Political

On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.


Here’s how John Durham moved to exclude any evidence that his team was ordered to produce results in time for the 2020 election, bullied witnesses, or treated Hillary Clinton as a more dangerous adversary than Russia.

The Government expects that defense counsel may seek to present evidence at trial and make arguments that depict the Special Counsel as politically motived or biased based on his appointment by the prior administration. Notwithstanding the patently untrue nature of those allegations, such matters are irrelevant to this case and would create a substantial danger of unfair prejudice, confusion, and delay. In particular, the government seeks to preclude the defendant from introducing any evidence or making any argument concerning the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel’s Office. Indeed, the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others, and their assertions lack any valid basis.

Only relevant evidence is admissible at trial. Fed. R. Evid. 402. The definition of relevance is inclusive, see Fed. R. Evid. 401(a), but depends on the possibility of establishing a fact that “is of consequence in determining the action,” Fed. R. Evid. 401(b). Evidence is therefore relevant only if it logically relates to matters that are at issue in the case. E.g., United States v. O’Neal, 844 F. 3d 271, 278 (D.C. Cir. 2016); see Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). The party seeking to introduce evidence bears the burden of establishing relevancy. Dowling v. United States, 493 U.S. 342, 351 n.3 (1990).

Here, the defendant is charged with making a false statement to the FBI General Counsel in violation of 18 U.S.C. § 1001. A jury will have to decide only whether the defendant knowingly and willfully made a materially false statement to the FBI General Counsel. Nothing more, nothing less. Baseless political allegations are irrelevant to the crime charged. See, e.g., United States v. Regan, 103 F. 3d 1072, 1082 (2d Cir. 1997) (claims of Government misconduct are “ultimately separate from the issue of [a defendant’s] factual guilt”); United States v. Washington, 705 F. 2d 489, 495 (D.C. Cir. 1983) (similar). Evidence or argument concerning these issues should therefore be excluded. See Fed. R. Evid. 402; see, e.g., O’Neal, 844 F,3d at 278; United States v. Stone, 19 CR 18 (D.D.C. Sept. 26, 2019) ECF Minute Order (granting the government’s motion in limine to exclude evidence or argument regarding alleged misconduct in the government’s investigation or prosecution of Roger Stone).

The only purpose in advancing these arguments would be to stir the pot of political polarization, garner public attention, and, most inappropriately, confuse jurors or encourage jury nullification. Put bluntly, the defense wishes to make the Special Counsel out to be a political actor when, in fact, nothing could be further from the truth.11 Injecting politics into the trial proceedings is in no way relevant and completely unjustified. See United States v. Gorham, 523 F. 2d 1088, 1097-1098 (D.C. Cir. 1975) (upholding trial court’s decision to preclude evidence relevant only to jury nullification); see also United States v. Rushin, 844 F. 3d 933, 942 (11th Cir. 2016) (same); United States v. Castro, 411 Fed. App’x 415, 420 (2d Cir. 2011) (same); United States v. Funches, 135 F.3d 1405, 1408-1409 (11th Cir. 1998) (same); United States v. Cropp, 127 F.3d 354, 358-359 (4th Cir. 1997). With respect to concerns about jury nullification, this Circuit has opined:

[Defendant’s] argument is tantamount to the assertion that traditional principles concerning the admissibility of evidence should be disregarded, and that extraneous factors should be introduced at trial to become part of the jury’s deliberations. Of course a jury can render a verdict at odds with the evidence and the law in a given case, but it undermines the very basis of our legal system when it does so. The right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure.

Gorham, 523 F.2d at 1098. Even if evidence related to the defendant’s anticipated allegations had “marginal relevance” to this case (which it does not), the “likely (and presumably intended) effect” would be “to shift the focus away from the relevant evidence of [the defendant’s] wrongdoing” to matters that are, at most, “tangentially related.” United States v. Malpeso, 115 F. 3d 155, 163 (2d Cir. 1997) (upholding exclusion of evidence of alleged misconduct by FBI agent). For the foregoing reasons, the defendant should not be permitted to introduce evidence or make arguments to the jury about the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel.

11 By point of fact, the Special Counsel has been appointed by both Democratic and Republican appointed Attorneys General to conduct investigations of highly-sensitive matters, including Attorneys General Janet Reno, Michael Mukasey, Eric Holder, Jeff Sessions and William Barr. [my emphasis]

Durham stuck the section between an extended section arguing that Judge Christopher Cooper should treat the interlinked investigations — by those working for the Hillary campaign and those, working independently of the campaign, who believed Donald Trump presented a grave risk to national security — into Trump’s ties to Russia as a unified conspiracy and another section asking that Clinton Campaign tweets magnifying the Alfa Bank allegations be admitted, even though the argument to include them is closely related.

Even ignoring how Durham pitches this issue, the placement of this argument — smack dab in the middle of an effort to treat protected political speech he admits is not criminal like a criminal conspiracy — seems like a deliberate joke. All the more so coming from prosecutors who, with their conflicts motion,

stir[red] the pot of political polarization, garner[ed] public attention, and, most inappropriately, confuse[d potential] jurors

It’s pure projection, presented in the middle of just that kind of deliberately polarizing argument. From the moment the Durham team — which relied heavily on an FBI Agent who reportedly sent pro-Trump texts on his FBI phone — tried to enhance Kevin Clinesmith’s punishment for altering documents because he sent anti-Trump texts on his FBI phone, Durham has criminalized opposition to Trump.

And Durham himself made his hiring an issue by claiming that the guy who misrepresented his conflicts motion by using it to suggest that Sussmann and Rodney Joffe should be executed, Donald Trump, is a mere third party and not the guy who made him a US Attorney.

But it’s also misleading, for multiple reasons.

The initial bias in question pertains to covering up for Russia, not helping Republicans

Sussmann’s likely complaints at trial have little to do with the fact that Durham was appointed by a Republican. Rather, a key complaint will likely have to do with the fact that Durham was appointed as part of a sustained campaign to misrepresent the entire set of events leading up to the appointment of his predecessor as Special Counsel, Robert Mueller, by a guy who auditioned for the job of Attorney General based on his claims — reflecting his warped Fox News understanding of the investigation — that the confirmed outcome of that investigation was false.

You cannot separate Durham’s appointment from Billy Barr’s primary goal in returning as Attorney General to undermine the evidence of improper Trump ties to Russia. You cannot separate Durham’s appointment, in the same days as Mueller acquired key evidence in two investigations (the Egyptian bank donation and Roger Stone) that Barr subsequently shut down, from Barr’s attempt to undermine the past and ongoing investigation. You cannot separate Durham’s appointment from what several other DC District judges (Reggie Walton, Emmet Sullivan, and Amy Berman Jacksonthe latter, twice) have said was Barr’s improper tampering in the Russian investigation.

That is, Durham was appointed to cover-up Trump’s confirmed relationship with Russia, not to attack Democrats. But in order to cover up for Russia, Durham will, and has, attacked the Democrats who were first victimized by Russia for viewing Russia as a threat (though I believe that Republicans were victimized, too).

That bias has exhibited in the following ways, among others:

  • Treating concern about Trump’s solicitation of further hacks by Russia and his confirmed ties to Russian money laundering as a partisan issue, and not a national security issue (something Durham continues with this filing)
  • Treatment, in the Danchenko case, of Charles Dolan’s involvement in the most accurate report in the Steele dossier as more damning that the likely involvement of Dmitri Peskov in the most inflammatory reports that paralleled the secret communications with Dmitry Peskov that Trump and Michael Cohen lied to cover up
  • Insinuations from Andrew DeFilippis to Manos Antonakakis that it was inappropriate for DARPA to ask researchers to investigate ongoing Russian hacks during an election
  • A prosecutorial decision that risks making sensitive FISA information available to Russia that will, at the same time, signal that the FBI won’t protect informants against Russia

There are other indications that Durham has taken probable Russian disinformation that implicates Roger Stone as instead reliable evidence against Hillary.

Durham’s investigation into an investigation during an election was a key prop during an investigation

Another thing Durham may be trying to stave off is Sussmann calling Nora Dannehy as a witness to explain why she quit the investigation just before the election. Even assuming Durham could spin concerns about pressure to bring charges before an election, that pressure again goes to Billy Barr’s project.

When Durham didn’t bring charges, some of the same documents Durham was reviewing got shared with Jeffrey Jensen, whose team then altered several of them, at least one of them misleadingly, to present a false narrative about Trump’s opponent’s role in the investigation. Suspected fraudster Sidney Powell seems to have shared that false narrative with Donald Trump, who then used it in a packaged attack in the first debate.

This is one of the reasons why Durham’s submission of Bill Priestap’s notes in such a way as to obscure whether those notes have some of the same indices of unreliability as the altered filings in the Mike Flynn case matters.

In other words, Durham is claiming that scrutinizing the same kind of questions that Durham himself has been scrutinizing for years is improper.

The bullying

I find it interesting that Durham claims that, “the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others,” without citing any. That’s because the only thing in the record is that Sussmann asked for evidence of Durham bullying witnesses to alter their testimony — in response to which Durham provided communications with April Lorenzen’s attorneys.

On December 10, 2021, the defense requested, among other things, all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others” about the conduct of the Special Counsel’s Office.” Although communications with other counsel are rarely discoverable, especially this far in advance of trial, the Government expects to produce certain materials responsive to this request later this week. The Government notes that it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation. For example, certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as “threats” or “intimidation.”

And this set of filings reveals that Durham is still trying to force Rodney Joffe to testify against Sussmann, even though Joffe says his testimony will actually help Sussmann.

In other words, this may be a bid by Durham to prevent evidence of prosecutorial misconduct under the guise of maintaining a monopoly on the right to politicize the case.

Normally, arguments like this have great merit and are upheld.

But by making the argument, Durham is effectively arguing that the entire premise of his own investigation — an inquiry into imagined biases behind an investigation and later appointment of a Special Counsel — is illegitimate.

As we’ll see, what Judge Christopher Cooper is left with is nothing more than competing claims of conspiracy.

The Evidence Needed for a Trump Prosecution

It would be easier to prosecute Trump for January 6 than Peter Navarro. I say that (in advance of today’s debate about referring Navarro and Dan Scavino for contempt) because it is far easier to tie Trump’s actions directly to the successful obstruction of the vote certification on January 6 than it would Navarro’s, and Navarro’s actions are fairly tangential to the proof that Trump’s actions met the elements of obstruction of the vote certification.

Months ago, I laid out how to prosecute Trump using the framework that DOJ has already used with hundreds of January 6 defendants. But in this post, I will show how much evidence DOJ has already collected proving the case against Trump by using the framework for Trump’s criminal exposure laid out by Judges Amit Mehta and David Carter, incorporating a key point made by Judge Reggie Walton.

In his opinion upholding the lawsuits against Trump, Amit Mehta found that it was plausible Trump conspired with the militias and also that he bore aid-and-abet liability for assaults at the Capitol (see this post and this post). He found that:

  • Trump and the militias jointly pursued an effort to disrupt the vote certification
  • Trump planned the unpermitted march to the Capitol
  • Trump encouraged the use of force and threats to thwart the certification from proceeding
  • Trump knew supporters would respond to his calls to come to DC and march on the Capitol
  • Trump called for collective action
  • Trump intended his “fight like hell” comment to be taken literally and rioters did take it literally
  • Trump ratified the riot

In his opinion finding that one email from John Eastman must be turned over to the January 6 Committee on a crime-fraud exception (see this post), Carter laid out the following proof that Trump obstructed the vote certification:

  • Trump tried to persuade Pence to disrupt the vote certification
  • He publicly appealed to Pence to do so
  • He called on his followers to walk to Congress to pressure Pence and Congress

Carter laid out this evidence that Trump had corrupt intent:

  • Proof that he had been told the vote fraud claims were false and his own request of Brad Raffensperger showed he knew he had lost
  • Trump had been told the Eastman’s plan was not legal

Carter laid out this evidence he had entered into a conspiracy:

  • Trump held lots of meetings to talk about plans to obstruct the vote count
  • Trump ratified Eastman’s plan in his Ellipse speech

To those two frameworks finding that Trump probably conspired to obstruct the vote certification, Judge Walton held that you cannot point to back-room plotting to get to the intentions of the actual rioters; you can only look at what the rioters themselves accessed, Trump’s public speech and Tweets (see this post).

This table (which is still very much a work in progress) lays out what evidence would be needed to prosecute Trump. The horizontal Elements of 1512(c)(2)/Relevant to Motive and Co-Conspirators sections show what is necessary given the elements of the offense as laid out by the judges and in DOJ filings, versus what might provide evidence of a broader conspiracy. The Must Have/Nice to Have columns show that for each kind of proof, there’s what is necessary and what would be really useful before indicting a former President.

In other words, the things in the yellow boxes are the things that would be necessary to show that Trump obstructed the vote certification. They basically amount to proof that things that Trump did brought the rioters to DC and to the Capitol and that he had the corrupt mens rea to charge with obstruction. I include there proof that Trump conspired with the militias, which I consider necessary because the Proud Boys, especially, took the bodies that Trump sent them and made those bodies tactically effective.

While prosecutors are still working on tying Roger Stone to both militias and tying Alex Jones and Ali Alexander into the crimes at the Capitol, much of the rest of this evidence has already been collected and rolled out in charging papers. For example, I showed some of the proof that rioters responded to Trump’s attacks on Pence by targeting their own attacks on Pence. There are a number of Trump comments that directly led hundreds of rioters to start making plans to come to DC, including arming themselves; NYT recently laid out the most central communication, a Tweet on December 19, 2020, though not only is that focus not new, it’s the tweet and response to which Arieh Kovler predicted the attack on the Capitol in real time.

A number of the other things you’d want to have before you charged Trump are available to DOJ:

  • Details of how the march to the Capitol happened and why it — and Ali Alexander’s permitted rallies at the Capitol — made a riot more likely
  • Explanations why Ellipse rally organizers balked at including people like Ali Alexander and Roger Stone
  • Testimony from Pence’s aides about how Trump pressured his Vice President in private

It is true that the testimony of several people — those involved in selling the Big Lie and Scavino’s coordination of the riot (including a particular focus on The Donald) — would be really useful. But that testimony is as important to proving that they were part of the conspiracy along with Trump.

Pat Cipollone’s tesitmony would be incredibly useful to that case, too. Normally, he could invoke privilege, but Trump already waived some of that privilege by sharing details about his conversations with Cipollone with Sean Hannity. If Cipollone did cooperate with DOJ, I don’t think he would leak that.

Similarly, the Relevant to Motive and Co-Conspirators rows — showing Trump’s coordination with Congress or his prior planning of it — would be really useful to have in prosecuting Trump. But ultimately, as Judge Walton held, what Trump did in private could not have influenced most of the rioters, because they never knew those details. As such, some of that information — precisely the kinds of stuff that TV lawyers say would be the first overt signs that Trump was a subject of the investigation — is more useful for including others in the conspiracy.

The most important of this evidence — communications from the December 18 meeting and comms during the day of the riot — are already in DOJ’s possession from Rudy’s seized phones, whether or not they obtained a warrant for that content yet.

Update: I’ve tweaked the horizontal headings on the table to clarify that the top half of the table stems from the elements of offense for 1512(c)(2), whereas the bottom half is clearly related and may help prove mens rea or incorporate other co-conspirators, but is not necessary (in my opinion) to meeting the elements of obstruction.

Judge Reggie Walton Ruled Trump’s Back-Room Maneuverings Inadmissible for Dustin Thompson’s Alleged Obstruction

Last week, I showed that most commentators are looking in the wrong place — in the backroom plots to overturn the election — for evidence of Trump’s role in January 6. All the scheming at the Willard only matters, I argued, because it brought bodies to occupy the Capitol and threaten Pence. You find the evidence of Trump’s influence on the rioters in the words and deeds of the rioters.

That argument is backed by an order Judge Reggie Walton issued a few weeks ago in the case of Dustin Thompson, who is set to go on trial for misdemeanor theft and trespass and felony obstruction charges on April 11.  His trial will be among the first for a January 6 defendant accused of obstruction who did not, also, engage in or threaten cops. His prosecution is symbolically important because he filmed himself helping to ransack the Parliamentarian’s office, from which he stole a coat rack.

Because of his symbolic attack on the operation of the vote count, Thompson’s trial will be an important test of DOJ’s theory of obstruction.

For months, Thompson has been trying to get permission to call Trump and Rudy Giuliani to claim that he believed he was acting on orders from the President to occupy the Capitol and therefore did not have the corrupt intent to be guilty of felony obstruction.

Walton will permit Thompson to show the speeches of Rudy and Trump, but he rejected the defendant’s bid to call them as witnesses. He did so partly because of the circus doing so would cause (the legal term is “a trial within a trial” or “mini-trial”). But he also did so because Thompson would have had no knowledge of anything that happened behind the scenes. If he was genuinely influenced by what Trump said that day, it would have been exclusively through his speech and later Tweets. The best available evidence about what Trump said that — Thompson claims — led him to storm the Capitol would thus be the recorded speeches, not whatever Trump would say on the stand.

ORDERED that the testimony of the putative witnesses referred to in the Defendant’s Motion to Appoint U.S. Marshals Service as Process Server (“the defendant’s process server motion”), ECF No. 44, is inadmissible in support of either of the first two versions of the public authority defense as described by the defendant in his Brief in Support of Testimony of Donald J. Trump, et al., ECF No. 53. It is further

ORDERED that the actual statements of the putative witnesses referred to in the defendant’s process server motion are admissible (1) to the extent that the defendant can establish that he heard them prior to the acts that he is alleged to have committed and (2) for the sole purpose of attempting to show that he did not have the requisite intent to commit the crimes he has been charged with committing. It is further

ORDERED that the in-person testimony of the putative witnesses is inadmissible under Federal Rule of Evidence 403 because the probative value of such testimony is substantially outweighed by the danger of confusing the issues and misleading the jury. The only relevant testimony by the speakers would be the actual statements heard by the defendant prior to the acts that he is alleged to have committed. Testimony about an orchestrated or behind-the-scenes effort to cause former President Trump’s supporters to commit the acts that occurred at the United States Capitol on January 6, 2021, as alleged by defense counsel, is irrelevant as it has no relevance to the public statements that the defendant actually heard. Moreover, the probative value of the proposed in-court testimony about such public statements is lacking, given the duration of time since these statements were made and the improbability that the witnesses will be able to precisely mimic the text, tone, demeanor, and mannerisms originally used when the statements were made, all of which are necessarily relevant to the statements’ impact on the defendant’s intent. Accordingly, in light of the irrelevance of the alleged desire on the part of the speakers to incite the defendant to commit the crimes charged in this case and the substantial potential that their testimony will mislead and confuse the jury, it is therefore inadmissible under Rule 403. Furthermore, the recordings of what the defendant heard at the time the statements were made is the best evidence of the impact that the statements allegedly had on the defendant’s intent. For this reason also, the in-court testimony of the speakers is inadmissible. 2

2 It is inconceivable that any of the speakers will testify that they intended for the people they were addressing to commit the acts that the defendant is accused of committing, in no small part because doing so could result in criminal charges being lodged against them. Thus, it is highly likely that they would either assert their Fifth Amendment privilege not to incriminate themselves or deny that they intended to incite the crowd to commit the acts that occurred at the Capitol on January 6, 2021. However, even if the speakers were to so testify, such testimony would open the door for the government to cross-examine the speakers about their intent in making the alleged statements. This would inevitably lead to a mini-trial on the issue of the intent of the speakers in making their statements, which, as the Court concludes above, is utterly irrelevant to the impact of the statements on the defendant’s intent. This reality is further reason not to permit the speakers to testify at the defendant’s trial.

Thompson is going to have a hard time blaming Trump’s speech in any case. As Thompson’s co-defendant Robert Lyon admitted in his statement of offense when he pled guilty last month, he and Thompson weren’t paying close attention to Trump’s speech.

During the January 6, 2021 speech given by former President Trump, Thompson and Lyon twice went to get food from nearby food trucks. Thompson was also on his phone on various occasions during the speech.

Thompson also sent texts before he arrived in DC, including multiple ones pertaining to the Stop the Steal rally and others talking about arming himself, evincing his plans before the rally.

Those are the texts Judge Walton permitted the government to admit at trial.

Thompson will presumably still try to make his trial about Trump. But Judge Walton laid down an important principle — one that stems from the real influences on most (but by no means all) rioters — that Trump’s role in their obstruction stems from what is public.

On CIPA and Sequestration: Durham’s Discovery Deadends

In this post, I laid out the range of highly classified or other potentially unavailable information that Igor Danchenko will be able to make a credible claim to need to defend himself against charges he knowingly lied to the FBI.

That list includes:

  • Details about a Section 702 directive targeting Danchenko’s friend, Olga Galkina
  • Extensive details about Sergei Millian’s Twitter account, including proof that Millian was always the person running it
  • Details of the counterintelligence investigation into Millian
  • Materials relating to Millian’s cultivation, in the same weeks as a contested phone call between Danchenko and Millian, of George Papadopoulos
  • Evidence about whether Oleg Deripaska was Christopher Steele’s client for a project targeting Paul Manafort before the DNC one
  • All known details of Deripaska’s role in injecting disinformation into the dossier, up through current day
  • Details of all communications between Deripaska and Millian
  • Details of the counterintelligence investigation into Carter Page
  • Both the FISA applications targeting Page and the underlying discussions about them
  • FISA-obtained collection that is helpful and material to Danchenko’s defense, including all substantive collection incriminating Page obtained before Danchenko’s January interviews, and all intelligence relating to the specific alleged lies in the indictment
  • Materials relating to FBI’s attempt to corroborate the dossier, including materials from Page’s FISA collection that either corroborated or undermined it

As I noted, I know of no prior case where a defendant has had notice of two separate FISA orders as well as a sensitive ongoing counterintelligence investigation and a credible claim to need that information to mount a defense. Durham has committed to potentially impossible discovery obligations, all to prosecute five (or maybe two) lies that aren’t even alleged to have willingly obstructed an investigation. For reasons I lay out below, Durham may not, legally, be able to do that.

To be quite clear: that Danchenko can make a credible claim to need this stuff doesn’t mean he’ll get it, much less be permitted to present it at trial. But, particularly given that the two FISA orders and the counterintelligence investigations have all been acknowledged, DOJ can’t simply pretend they don’t have the evidence. For perhaps the first time ever, DOJ doesn’t get to decide whether to rely on FISA information at trial, because the indictment was written to give the defense good cause to demand it.

Still, much of this stuff will be dealt with via the Classified Information Proecdures Act, CIPA. CIPA is a process that purports to give the government a way to try prosecutions involving classified information, balancing discovery obligations to a defendant with the government’s need to protect classified information. (Here’s another description of how it works.)

Effectively, Danchenko will come up with a list similar to the one above of classified information he believes exists that he needs to have to mount a defense. The government will likewise identify classified information that it believes Danchenko is entitled to under discovery rules. And then the judge — Anthony Trenga, in this case — decides what is material and helpful to Danchenko’s defense. Then the government has the ability to “substitute” language for anything too classified to publicly release, some of it before ever sharing with the defendant, the rest after a hearing including the defense attorneys about what an adequate substitution is.

Here’s a fragment of an exhibit from the Joshua Schulte case that shows the end product of the CIPA process: The CIA was able to replace the name of a vendor the CIA used (presumably as a cover) with the generic word, “vendor,” thereby preventing others from definitively attributing the cover with the CIA. It replaced the description of those who would use the hacking tool with “operators.” Elsewhere, the same exhibit replaced the name of one of Schulte’s colleagues. It redacted several other words entirely.

Here are some more exhibits — CIA Reports submitted at the Jeffrey Sterling trial — that show the outcome of the CIPA process.

On top of the fact that CIPA adds a way for the government to impose new roadblocks on discovery (and discovery only begins after a defendants’ attorneys are cleared), it can end up postponing the time when the defendant actually gets the evidence he will use at trial. So it generally sucks for defendants.

But the process is also onerous for the prosecutor. Basically, the prosecutor has to work with classification authorities from the agency or agencies that own particular classified information and cajole them to release enough information to get past the CIPA review. In my earlier post, I described that Patrick Fitzgerald had to do this with the Presidential Daily Briefs, and it took him several attempts before he had declassified enough information to satisfy Judge Reggie Walton that it provided Scooter Libby with the means to make his defense. If the agency involved in the CIPA process hasn’t totally bought off on the importance of the prosecution, they’re going to make the process harder. Often, the incentive for agencies to cooperate stems from the fact that the defendant is accused of leaking secrets that the agency in question wants to avenge.

Because the process is so onerous, DOJ works especially hard to get defendants to plead before the CIPA process, and often because the defendant is facing the kind of stiff sentence that comes with Espionage charges, CIPA makes it more likely they’ll plead short of trial.

Those two details already make Danchenko’s trial different from most CIPA cases. That’s true, first of all, because Danchenko never had any agency secrets, and prosecutors will be forced to persuade multiple agencies (at least the FBI and NSA, and possibly CIA and Treasury) to give a Russian national secrets even though his prosecution will set no example against leaking for the agencies. Indeed, the example Danchenko will be setting, instead, is that the FBI doesn’t honor its commitments to keep informant identities safe. Additionally, there’s little reason for Danchenko to plead guilty, as the punishment on five 18 USC 1001 charges would not be much different than one charge (remember, Kevin Clinesmith got probation for his 18 USC 1001 conviction), and Danchenko would still face deportation after he served any sentence, where he’s likely to face far greater retaliation than anything US prisons would pose. That will influence the CIPA process, too, as a successful prosecution would likely result in the Russian government coercing access to whatever secrets that intelligence agencies disclose to Danchenko during the prosecution.

CIPA always skews incentives, but this case skews incentives differently than other CIPA cases.

Add in that Judge Trenga, the judge in this case, has been pondering CIPA issues of late in the case of Bijan Kian, Mike Flynn’s former partner, who was prosecuted on Foreign Agent charges. Trenga was long unhappy with the way DOJ charged Kian’s case, and grew increasingly perturbed with DOJ’s attempts to salvage the case after Flynn reneged on his cooperation agreement. Trenga overturned the jury’s guilty verdict, but was subsequently reversed on that decision by the Fourth Circuit. Since then, Kian has been demanding two things: more access to classified materials underlying evidence he was given pursuant to the CIPA process right before trial showing previously undisclosed contacts between Flynn and Ekim Alptekin not involving Kian, and a new trial, partly based on late and inadequate disclosure of that CIPA information.

Following a series of ex parte hearings regarding classified evidence pursuant to the Confidential Information Procedures Act (“CIPA”), the government, on the eve of trial, handed Rafiekian a one-sentence summary, later introduced as Defendant’s Exhibit 66 (“DX66”), informing Rafiekian that the government was aware of classified evidence relating to interactions between Flynn and Alptekin that did not “refer[] to” Rafiekian. DX66.1 Following receipt of DX66, Rafiekian immediately sought access to the underlying information pursuant to CIPA because “[i]t goes right to the question of what happened and what he knew and what statements were made and who was making them,” and “[i]f Mr. Rafiekian is convicted without his counsel having access to this exculpatory evidence, we believe it will go right to the heart of his due process and confrontation rights.” Hr’g Tr. 31 (Jul. 12, 2019), ECF No. 309. The Court took the request under advisement, noting that it “underst[ood] the defense’s concern and w[ould] continue to consider whether additional disclosure of information” would be necessary as the case developed. Id. at 32. At trial, the government used DX66 in its rebuttal argument in closing to show that Rafiekian participated in the alleged conspiracy—“even though the information in that exhibit related solely to Flynn and explicitly excluded Rafiekian.” Rafiekian, 2019 WL 4647254, at *17.

1 DX66 provides in full: The United States is in possession of multiple, independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn, and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign, without any reference to the defendant or FIG.

With regards to the first request, Trenga has ruled that Kian can’t have the underlying classified information, because (under CIPA’s guidelines) the judge determined that, “the summary set forth in DX Exhibit 66 provides the Defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.” But his decision on the second issue is still pending and Trenga seems quite open to Kian’s request for a new trial. So Danchenko and Durham begin this CIPA process years into Trenga’s consideration about how CIPA affects due process in the Kian case. I don’t otherwise expect Trenga to be all that sympathetic to Danchenko, but if Trenga grants Kian a new trial because of the way prosecutors gained an unfair advantage with the CIPA process (by delaying disclosure of a key fact), it will be a precedent for and hang over the CIPA process in the Danchenko case.

Then there are unique challenges Durham will face even finding everything he has to provide Danchenko under Brady. In the Michael Sussmann case, I’ve seen reason to believe Durham doesn’t understand the full scope of where he needs to look to find evidence relevant to that case. But given the centrality of investigative decisions in the Danchenko case — and so the Mueller investigation — to Durham’s materiality claims, Durham will need to make sure he finds everything pertaining to Millian, Papadopoulos, and Kiliminik and Deripaska arising out of the Mueller case. In the case of Steve Calk, that turned out to be more difficult than prosecutors initially imagined.

But all of these things — the multiple sensitive investigations relevant to Danchenko’s defense, normal CIPA difficulties, unique CIPA difficulties, and the challenges of understanding the full scope of the Mueller investigation — exist on top of another potential problem: DOJ doesn’t control access to some of the most important evidence in this case.

As I noted in my earlier post, there are multiple things FBI obtained by targeting Carter Page that Danchenko will be able to demand to defend himself against Durham’s materiality claims. For example, FBI obtained information under FISA that seems to undercut Page’s claims that he didn’t meet with Igor Diveykin, a claim Danchenko sourced to Olga Galkina, who is central to Durham’s materiality claims.

If this information really does show that Page was lying about his activities in Russia, it would provide proof that after the initial FISA order, FBI had independent reason to target Page.

Similarly, FBI believed that Page’s explanation for how he destroyed the phone he was using in Fall 2016 was an excuse made up after he knew he was being investigated; that belief seems to be based, in part, on information obtained under FISA.

The FBI’s suspicions about that broken phone seem to be related to their interest in collecting on an encrypted messaging app Page used, one of the two reasons why FBI sought reauthorization to target Page in June 2017. Danchenko will need this information to prove that the June 2017 reauthorization was driven entirely by a desire to get certain financial and encrypted communication evidence, and so could not have been affected by Danchenko’s May and June 2017 interviews.

Information obtained from targeting Page under FISA will similarly be central to Danchenko’s defense against Durham’s claims that his alleged lies prevented FBI from vetting the dossier. That’s because the spreadsheet that FBI used to vet the dossier repeatedly relied on FISA-collected information to confirm or rebut the dossier. Some of that pertains to whether Page met with Igor Diveykin, an allegation Danchenko sourced to Olga Galkina, making it central to his defense in this case.

Other FISA-collected material was used to vet the Sergei Millian claim, which Durham charged in four of five counts.

Some of this may not be exculpatory (though some of it clearly would be). But it is still central to the case against Danchenko.

The thing is, Durham may not be legally able to use this information in Danchenko’s prosecution, and even if he is, it will further complicate the CIPA process.

Back on January 7, 2020, James Boasberg — acting in his role as the then-presiding FISA Judge — ordered that the FBI adopt limits on the use of any information obtained via the four Carter Page FISA orders. Such orders are one of the only tools that the FISA Court has to prohibit the use of information that the Executive collects but later determines did not comply with FISA (the government only retracted the probable cause claims for the third and fourth FISA orders targeting Page, but agreed to sequester all of it). A subsequent government filing belatedly obtaining permission to use material obtained via those FISA orders in conjunction with Carter Page’s lawsuit laid out the terms of that sequester. It revealed that, according to a June 25, 2020 FISA order, the government can only legally use material obtained under those FISA orders for the following purposes:

  1. Certain identified ongoing third-party litigation pursuant to the Freedom of Information Act (FOIA)
  2. Ongoing and anticipated FOIA and civil litigation with Page
  3. FBI review of the conduct of its personnel involved in the Page investigation
  4. DOJ OIG monitoring of the implementation of one of the recommendations stemming from the OIG Report
  5. The review of the conduct of Government personnel in the Page and broader Crossfire Hurricane investigations [my emphasis]

On November 23, 2020, Boasberg issued a follow-up order in response to learning, on October 21, 2020, that DOJ had already shared sequestered FISA information with the US Attorney for Eastern Missouri (the Jeffrey Jensen review), the US Attorney for DC (possibly, though not certainly, the Durham case), and the Senate Judiciary Committee (FISC may have learned of the latter release when the vetting spreadsheet was publicly released days before DOJ informed FISC of that fact). Effectively, Bill Barr’s DOJ had confessed to the FISA Court that it had violated FISA by disseminating FISA-collected information later deemed to lack probable cause without first getting FISC approval. Boasberg ordered DOJ to “dispossess” the MOE USAO and DC USAO of the sequestered information and further ordered that those US Attorneys, “shall not access materials returned to the FBI … without the prior approval of the Court.”

There’s no evidence that Durham obtained approval to access this information (though DOJ applications to FISC often don’t get declassified, so it’s not clear it would show up in the docket). And when I asked DOJ whether Durham had obtained prior approval to access this sequestered information even for his own review, much less for use in a prosecution, I got no response. While accessing the sequestered material for review of the conduct of Government personnel is among those permitted by the original order (bolded above), using it to review the conduct of non-governmental sources like Danchenko was not, to say nothing of prosecuting such non-governmental sources. To get approval to use sequestered information in the Danchenko case, Durham would have to convince FISC to let Durham share such information with a foreign national whose prosecution would lead to his deportation to Russia. And if he shared the information without FISC approval, then Durham himself would be violating FISA.

To be sure, it would be the most unbelievable kind of malpractice to charge the Danchenko case without, first, ascertaining how Durham was going to get this sequestered information. I’d be shocked if Durham hadn’t gotten approval first. But then, I was shocked that when Durham charged Kevin Clinesmith, he didn’t know what crimes FBI investigated Page for. I am shocked that Durham used Sergei Millian’s Twitter feed to substantiate a factual claim that Millian didn’t speak with Danchenko. So who knows? Maybe Durham has not yet read this evidence, to say nothing of ensuring he can share it with a Russian national in discovery. It would shock me, but I’m growing used to being shocked by Durham’s recklessness.

In any case, depending on what the FISC has decided about disseminating — and making public — this sequestered information, it will, at the very least, create additional challenges for Durham. Durham couldn’t just assert that DOJ IG had determined that the this information was not incriminating to Page and therefore not helpful to Danchenko to avoid sharing the sequestered FISA information. Under CIPA, Judge Trenga would need to review the information himself and assess whether information obtained under Page’s FISA was material and helpful to Danchenko’s defense. If he decided that Danchenko was entitled to it in his defense, then Durham might have to fight not just with FBI and NSA to determine an adequate substitution for that information, but also FISC itself.

CIPA assumes that the Executive owns the classification decisions regarding any information to be presented at trial, and therefore the Executive gets to balance the value of the prosecution against the damage declassifying the information would do. Here, as with Fitzgerald, a Special Counsel will be making those decisions, setting up a potential conflict with all the agencies that may object. But here, FISC has far more interest in the FISA information than it would if (say) it were just approving the use of FISA-obtained material to prosecute the person targeted by that FISA.

Again, John Durham is going to have to declassify a whole bunch of sensitive information, including information sequestered to protect Carter Page, to give it to a foreign national who never had those secrets such that, if Durham succeeds at trial, it may lead inevitably to Russia obtaining that sensitive information. All that for five shoddily-charged false statements charges. This is the kind of challenge that a prosecutor exercising discretion would not take on.

But Durham doesn’t seem to care that he’s going to damage all the people he imagines are victims as well as national security by bringing this case to trial.

Danchenko posts

The Igor Danchenko Indictment: Structure

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

On CIPA and Sequestration: Durham’s Discovery Deadends

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

Don’t Ignore What Trevor McFadden Has to Say about January 6

Tierney Sneed had a good article yesterday summarizing how starkly some of the judges presiding over January 6 cases have described it. For example, Sneed quoted liberally from the comments Randolph Moss made in sentencing Paul Hodgkins, comments that the government and other judges are quoting frequently.

“It means that it will be harder today than it was seven months ago for the United States and our diplomats to convince other nations to pursue democracy,” Judge Randolph Moss said at a July 19 sentencing hearing. “It means that it will be harder for all of us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation. It means that we are now all fearful about the next attack in a way that we never were.”

[snip]

Moss, a nominee of President Barack Obama, said that the attack “threatened not only the security of the Capitol, but democracy itself,” as he sentenced Paul Hodgkins, a rioter who pleaded guilty to obstructing an official proceeding.

“Our elected representatives from both political parties came together that day to perform their constitutional and statutory duty to declare, in the word of the statute, the person elected president,” Moss said at the July 19 hearing. “The mob’s objective was to stop that from happening. They were prepared to break the law to prevent Congress from performing its constitutional and statutory duty. That is chilling for many reasons.”

She includes judges appointed by Democrats (in addition to Moss, Amy Berman Jackson and Beryl Howell) and Republicans (Reggie Walton and Royce Lamberth).

As someone who thinks January 6 was exceptionally dangerous, it’s comforting to hear some judges agree. But I think that, to make a case about how judges are interpreting January 6, you would need to include the statements of a judge like Trevor McFadden, as well.

Of the District Judges carrying the heavy January 6 case load, four — Carl Nichols, Dabney Friedrich, Tim Kelly, and McFadden — are Trump appointees. Unlike some of Trump’s DC Circuit appointees, they’re all serious judges, with time as prosecutors or in other DOJ roles. Trump appointees aren’t necessarily going to be more favorable for January 6 defendants. While Nichols may have burnished his right wing bonafides clerking for Clarence Thomas, for example, that means he spent a lot of time with a Justice who is generally awful for non-corporate defendants’ rights. Former public defender and Obama appointee Tanya Chutkan has already made decisions (on bail) that are more favorable to defendants than the Trump appointees, for example, and I expect that to continue (the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, has also served as a public defender).

Still, as recent Republican appointees, the Trump judges are an important read and voice on this investigation. Both by disposition and record on the court, Friedrich is probably the Trumpiest judge, but thus far the most interesting case she has been assigned is that of Guy Reffitt, the III Percenter who threatened his kids if they revealed his role in the riot; in that case, she approved an order allowing prosecutors to use his face to open a laptop with pictures from the insurrection. Nichols has a bunch of cases, such as the Pollocks or former Green Beret Jeffrey McKellop, that may get interesting down the road, but thus far his most active cases have involved presiding over the plea deals of a group of people arrested on trespass charges on the day of the attack. Tim Kelly is presiding over the bulk of the Proud Boy cases, which by itself gives him a pretty full docket (but is also why DOJ really fucked up by treating Ethan Nordean’s invocation of the Kavanaugh protests so blithely); his decisions thus far have been totally fair. The decisions of Trevor McFadden, who is presiding over the omnibus Tunnel assault case, have also been fair.

I think McFadden’s statements should be included in any read of what these judges think of January 6 because he has pulled a number of the ones that, because the defendants’ political speech has been implicated in the cases against them, will provide an early read about how a Republican with solid political ties will view the balancing of political speech and threat posed by January 6.

In addition to the Hunter and Kevin Seefried prosecution (the latter of whom was pictured carrying a Confederate flag through the Capitol), McFadden is presiding over the prosecutions of American Firster Christian Secor, Cowboys for Trump founder Couy Griffin, and Neo-Nazi Timothy Hale-Cusanelli.

In these cases, McFadden has expressed a fair amount of nuance in his views as he has presided over some genuinely difficult decisions.

He did take the way Hale-Cusanelli expressed his bigotry into account when he decided to hold him without bail (which was genuinely one of the most difficult detention decisions, in my opinion, and I was leaning towards release before McFadden made the decision), but in significant part because he may have acted on those views in the past and because his promises of action were alarming and intimidating his colleagues.

Having said all of that, we don’t typically penalize people for what they say or think. I think for purposes of my analysis, I need to — I’m trying to figure out whether this well-documented history of violent and racist language does suggest that the defendant poses a danger to the community.

[snip]

I also note the government’s evidence that the defendant appears to have surrounded himself, to a certain extent anyway, with people who have encouraged this behavior and people who may even agree with him. And I agree with the government’s concern regarding potential escalation of violence at this point given all that has occurred. And I am concerned for the safety of the confidential human source. I think given all of the facts here in the government’s motion, I mention it is pretty obvious to the defendant anyway who this person is. And I am concerned given all of the defendant[‘]s — all of the things he said in the past about committing violence against those who he feels are pitted against him. And given the sum evidence that the defendant has been willing to put these thoughts into action in the past, I think I do have a duty to protect that confidential source.

McFadden did, however, release someone with similarly repugnant views, Secor, even though Secor had been arming himself, in part because Secor had third party custodians — his parents — willing to vouch for him and put up a $200,000 bond. McFadden seems to be seeking to separate out hateful speech from where that speech turns violent and, if nothing else, that struggle deserves close attention.

But he’s also not viewing DOJ’s response to January 6 as driven predominantly by First Amendment issues. In a decision rejecting Griffin’s attempt to throw out one of the trespassing charges DOJ has used — which Griffin, because he did not enter the Capitol, was uniquely situated to challenge — McFadden dismissed Griffin’s claims of political discrimination.

The Government moved to detain Griffin before trial. It described Griffin’s political views as “inflammatory, racist, and at least borderline threatening advocacy.” Gov’t’s Mem. in Supp. of Pretrial Detention at 2, ECF No. 3. The Government also highlighted the gun rights advocacy of Cowboys for Trump, as well as allegedly violent statements made by Griffin.

[snip]

Finally, Griffin complains of discriminatory prosecution. He contends that he was targeted and “selectively charged . . . because the government loathed him and his politics.” Def.’s Reply at 3. “Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (cleaned up). So “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties.” Id.

Griffin comes up short on providing the “clear evidence” required for this Court to surmount the presumption of regularity—and the separation of powers. He points to “hundreds or perhaps thousands of other individuals ‘remaining’ in the same area” as him on January 6 who have not faced charges under 18 U.S.C. § 1752. Def.’s Mot. at 24. The Court hesitates to credit these unsupported numbers, especially as the Government continues to charge new individuals with offenses related to January 6. Nor is the Court concerned by the Government’s statements about Griffin when seeking to detain him pretrial; detention hearings require the Court to consider the defendant’s history and personal characteristics, as well as his potential dangerousness.

Griffin highlights the Government’s dismissal of charges under 18 U.S.C. § 1752 in “the interests of justice” in United States v. Christopher Kelly, 21-mj-128 (D.D.C. 2021). According to news reports, the Government moved to drop the charges after determining Kelly did not enter the Capitol building. See Feds move to drop charges for Capitol riot defendant, Politico, June 1, 2021, https://www.politico.com/news/2021/06/01/feds-capitol-riot-defendant-491514 (“‘Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,’ the official said.”). Even so, the Government could rationally forgo federal prosecution as to most trespassers while deciding that Griffin’s leadership role in the crowd, position as an elected official, and more blatant conduct at the scene merited him different treatment. Not all differences amount to discrimination. In any event, presumably Kelly and the other uncharged protestors surrounding Griffin on the Capitol steps share his “politics,” Def.’s Reply at 3, complicating his complaint of bias here.

Griffin also points to the numerous uncharged protestors who broke through USCP barricades to occupy the Capitol steps on the eve of Justice Kavanaugh’s Senate confirmation vote. See Def.’s Notice at 2, ECF No. 39; see also Kavanaugh Protesters Ignore Capitol Barricades Ahead of Saturday Vote, Roll Call, Oct. 6, 2019, https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore-capitol-barricades-ahead-ofsaturday-vote/. Disparate charging decisions in similar circumstances may be relevant at sentencing. Cf. 18 U.S.C. 3553(a)(c) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But this is not a basis to dismiss the charges. [My emphasis]

McFadden based his decision on this point in part on separation of powers (the basis for some of his decisions that have been deemed pro-Trump) and presumption of regularity, as well as basic facts. He deemed reasonable the possibility that prosecutors viewed Griffin’s leadership role to be more important to prosecute. He suggested he might sentence Griffin (if he were found guilty) leniently based on a comparison with similarly situated protestors against Kavanugh. But he also based his decision on the notion that Griffin’s threats of violence (raised in a detention challenge conducted before Michael Sherwin departed) could pose a genuine concern to the government.

McFadden is not treating this investigation as a witch hunt against people with right wing views.

But at the same time, McFadden has deviated from his colleagues’ more alarmist language to refer to January 6. At least twice in hearings (including on this Griffin challenge), McFadden admonished an AUSA who referred to January 6 as an insurrection. Have you charged anyone with insurrection, McFadden rightly asked. In a court room, these are not empty terms. They are also names of crimes. And DOJ needs to be careful not to accuse these defendants of crimes that — for whatever reason — they haven’t charged.

It’s not that McFadden thinks January 6 was not serious. In the same Hale-Cusanelli hearing, he described, “Obviously, the January 6th riot was a serious and sui generis threat to our country’s body politic.” But thus far (he has not presided over any of the six cases that have been sentenced yet), he has adopted a more moderate tone in discussing the event.

It’s true that, for the moment, some District Court Judges will frame how we think of January 6. In Munchel, the DC Circuit, too, described January 6 in grave terms (albeit in a passage of Robert Wilkins’ majority opinion not joined by Greg Katsas).

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)).

But ultimately, the six Republican appointees on the Supreme Court will have their say about what this event was — at least about whether hundreds of people committed felony obstruction in trying to halt the peaceful transfer of power. And with that in mind, commentators and DOJ would do well to watch carefully for the specific aspects of January 6 that Trevor McFadden finds most troublesome.

Bill Barr Is Not Dick Cheney

Imagine if David Addington had co-signed the torture memos written by John Yoo?

I wanted to comment on a Quinta Jurecic column about the Barr Memo that Merrick Garland’s DOJ chose to withhold parts of, as well as this thread from Kel McClanahan responding to Jurecic. Their exchange focuses on how judges may have responded to Donald Trump’s Administration, and what kind of the traditional deference we should expect Garland’s DOJ to get. I’d like to add a few points that may show one possible angle for accountability for Bill Barr moving forward.

Those points start in the difference between Dick Cheney and Bill Barr. Bill Barr is not Dick Cheney. Both men were the masterminds of horrible policy under their respective (most recent) president. Both, in different ways, badly politicized the government. But Dick Cheney was, in my opinion, the most accomplished master of bureaucracy that DC had seen in a very long time. Barr, by contrast, either didn’t have Cheney’s bureaucratic finesse or just didn’t fucking care to hide his power plays. And the difference may provide means for accountability where it didn’t under Obama.

The worst Bush policies that Cheney implemented were torture and Gitmo, warrantless wiretapping, and the Iraq War. The first two implemented illegal policies by using Office of Legal Counsel to sanction them in advance. And, significantly (but not entirely) because of that, Obama never found the political means to fully excise those earlier policies. Obama only ever got paper prohibitions on torture, he never closed Gitmo, and one of the last things Loretta Lynch did was finalize an effort to legalize the last bits of Stellar Wind by approving EO 12333 sharing rules.

I believe that’s because Cheney used OLC specifically and the Executive bureaucracy generally to make any reversals more costly, a reversal of a position of the Executive Branch, rather than a treatment of crime as crime.

Barr used OLC too, plus he shielded a bunch of epically corrupt efforts to turn DOJ into the instrument of Trump’s personal will under his prerogative as Attorney General, especially prosecutorial discretion. The Barr Memo itself — a request to be advised to make a decision that Trump was not guilty of obstruction and then to announce it — was what he claims to be an instance of prosecutorial discretion. The decision to engage in unprecedented interference with Roger Stone’s sentencing was billed as an incidence of prosecutorial discretion. The decision to reverse the Mike Flynn prosecution, which entailed reversing prosecutorial decisions his own DOJ had approved at the highest levels, adopting a standard on crime that was inconsistent with every precedent, and ultimately included inventing evidence and altering documents, all that was billed as an instance of prosecutorial discretion. The decision to not only protect Rudy Giuliani from legal consequences of participating in an information campaign waged by a known agent of Russia, but also to ingest that disinformation and use it to conduct a criminal investigation of Trump’s rival’s son was also billed as an instance of prosecutorial discretion.

But in all those actions, Barr took steps that necessitated further exercise of corruptly exercised “prosecutorial discretion,” which snowballed. This is why the content of the Barr memo, which we can anticipate with a high degree of certainty, matters. The Barr memo necessarily addresses the pardon dangles (as well as the stuff that Barr said couldn’t be obstruction if a President did it). And I believe that the content of the Barr memo likely contributed to this snowball effect, possibly leading Barr to take later steps to try to limit the impact of having issued a prosecutorial declination for a crime still in progress, which in turn snowballed.

The aftermath of this effect is one detail that Jurecic and McClanahan don’t address. Jurecic says that under Trump,

judges were, perhaps unconsciously, responding to their own distrust in Trump’s oath of office by denying him—in one form or another—the presumption of good faith

She argues that Amy Berman Jackson’s anger about the memo is just another instance of this. That may be true, in part.

But it is also a fact that after ABJ presided over the Stone and Manafort cases, and as such ABJ has a detailed knowledge of what the Mueller Report showed that Barr did not get in the 48 hours while he was trying to get advice on how best to give Trump a clean bill of health (and, indeed, his public comments show he never got that detailed knowledge). In both those cases, Barr abused his discretion as Attorney General to try to make a pardon unnecessary, the snowball effect that his memo may have necessitated.

In service to his effort to minimize Stone’s prison time, Barr treated a threat against ABJ personally as a technicality. Then he lied about what he had done, falsely claiming that he had used the same thought process ABJ had when in fact he instead said threats against her could have no effect on the trial. After he treated the threat against ABJ as a technicality in the Stone case, a Mike Flynn supporter riled up by the lies Barr mobilized to try to overturn Flynn’s prosecution threatened to assassinate Emmet Sullivan. And even after that, Barr kept throwing more and more resources at undoing two decisions Emmet Sullivan made in December 2019, that Flynn’s lies were material and that prosecutors had not engaged in misconduct in his prosecution.

With his memo on the Mueller Report, Barr turned at least the year-plus prosecution of Roger Stone over which ABJ presided — and to a lesser degree the 18-month Paul Manafort prosecution — into legal nullities, in advance.

In short, it may be true that judges generally and ABJ specifically distrusted the good faith of Barr and DOJ’s effort to protect Barr.

But it is also the case that in the wake of this memo, Barr usurped the judicial authority of both ABJ and Emmet Sullivan and he took steps that minimized and contributed to dangerous threats against both.

ABJ is angry. Reggie Walton is angry. Other DC District judges are angry. But they’re angry in the wake of  Attorney General Bill Barr usurping their authority and dismissing violent threats against them and their colleagues.

This is one way Barr is different from Cheney. Cheney’s decisions, too, involved treating judges like doormats. In the effort to legalize a part of Stellar Wind in 2004, for example, DOJ told Colleen Kollar-Kotelly that she had no authority to do anything but rubber stamp a massive pen register that might collect the Internet records of millions of Americans. But DOJ did that in secret; it was years before any but a handful of Kollar-Kotelly’s colleagues even knew that, and I’m one of the very few human beings who understands that that happened. Where such claims happened in public, as with detainee fights related to Gitmo, even SCOTUS ultimately defied Cheney’s claims about Article III authority in Boumediene. But unlike Barr, Cheney maintained the illusion of legal order, in which Article III could rein in Article II.

Then there’s how they used OLC.

Jurecic portrays the dispute between ABJ and DOJ as one about their candor about the content of the memo.

For all the rhetorical fireworks, the substantive dispute between the government and Jackson is relatively narrow. It more or less boils down to an argument over whether or not the Justice Department was adequately precise in court about the specific arguments the memo addressed, and whether the department misled the court on the subject.

That’s part of it, but there’s another part that Jurecic and McClanahan don’t address — and that DOJ did not address at all in their response to ABJ, something that goes as much to the core of the deliberative claim as the substance of what Barr was trying to do.

ABJ complained not just that DOJ’s two declarants, Paul Colburn and Vanessa Brinkmann, and the attorney arguing the case, Julie Straus Harris, weren’t sufficiently clear about the substance of the memo (and I’m somewhat sympathetic to those who said she should have figured this out).

ABJ also made several process complaints about the memo — first, that Brinkmann’s declaration did not include details that are required in such declarations:

[Brinkmann] does not claim to have any personal knowledge of why the document was created or what its purpose might be, and while she states generally at the beginning of the declaration that she consulted with “knowledgeable Department personnel,” she does not state that she spoke with any particular person to gain first hand information about the provenance of this document. Id. ¶ 3. Instead, she appears to rely on her review of the document itself to make the following unattributed pronouncements about the decision that is supposedly at issue:

While the March 2019 Memorandum is a “final” document (as opposed to a “draft” document), the memorandum as a whole contains pre-decisional recommendations and advice solicited by the Attorney General and provided by OLC and PADAG O’Callaghan. The material that has been withheld within this memorandum consists of OLC’s and the PADAG’s candid analysis and legal advice to the Attorney General, which was provided to the Attorney General prior to his final decision on the matter. It is therefore pre-decisional. The same material is also deliberative, as it was provided to aid in the Attorney General’s decision-making process as it relates to the findings of the SCO investigation, and specifically as it relates to whether the evidence developed by SCO’s investigation is sufficient to establish that the President committed an obstruction-ofjustice offense. This legal question is one that the Special Counsel’s “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” . . . did not resolve. As such, any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General. [emphasis original]

She also complained that Straus Harris included a “flourish” on similar topics that was not based on the declarations before her.

The flourish added in the government’s pleading that did not come from either declaration – “PADAG O’Callaghan had been directly involved in supervising the Special Counsel’s investigation and related prosecutorial decisions; as a result, in that capacity, his candid prosecutorial recommendations to the Attorney General were especially valuable.” Id. at 14 – seems especially unhelpful since there was no prosecutorial decision on the table.

These are complaints about process, how certain content got into the declarations and memos submitted before her court, as much as they are about content. Again, DOJ simply blew off these complaints in their response to ABJ.

ABJ explains why they’re important in the section of her opinion addressing any claim to attorney-client privilege.

There are also other problems with the agency’s showing.

While the memorandum was crafted to be “from” Steven Engel in OLC, whom the declarant has sufficiently explained was acting as a legal advisor to the Department at the time, it also is transmitted “from” Edward O’Callaghan, identified as the Principal Associate Deputy Attorney General. The declarants do not assert that his job description included providing legal advice to the Attorney General or to anyone else; Colborn does not mention him at all, and Brinkmann simply posits, without reference to any source for this information, that the memo “contains OLC’s and the PADAG’s legal analysis and advice solicited by the Attorney General and shared in the course of providing confidential legal advice to the Attorney General.” Brinkmann Decl. ¶ 16.19

The declarations are also silent about the roles played by the others who were equally involved in the creation and revision of the memo that would support the assessment they had already decided would be announced in the letter to Congress. They include the Attorney General’s own Chief of Staff and the Deputy Attorney General himself, see Attachment 1, and there has been no effort made to apply the unique set of requirements that pertain when asserting the attorney-client privilege over communications by government lawyers to them. Therefore, even though Engel was operating in a legal capacity, and Section II of the memorandum includes legal analysis in its assessment of the strengths and weaknesses of the purely hypothetical case, the agency has not met its burden to establish that the second portion of the memo is covered by the attorney-client privilege.

19 The government’s memorandum adds that “PADAG O’Callaghan had been directly involved in supervising the Special Counsel’s investigation and related prosecutorial decisions,” Def.’s Mem. at 14, but that does not supply the information needed to enable the Court to differentiate among the many people with law degrees working on the matter.

Effectively, the details inserted into declarations and memos without the proper bases — the flourishes — both hint at and and serve to hide that there is no regularity to either the prosecutorial decision or the OLC advice included in this memo. Had Brinkmann supplied the details that would make her declaration proper — “well, I asked Ed O’Callaghan and he said this wasn’t so much Engel giving Barr advice but instead a bunch of men sitting in Barr’s office laying a paper trail” — it would have given the game away. But that’s what the record describes, and the import of the unexplained structure of this “OLC memo” — which normally would be given great deference in the case of deliberative claims — which is co-authored by someone acting in a prosecutorial role.

And rather than address ABJ’s complaints, the DOJ response admits that OLC is not authorized to make decisions for other parts of DOJ.

One relevant factor in determining whether a document is predecisional is whether the author possesses the legal authority to decide the matter at issue. See, e.g., Electronic Frontier Found. v. DOJ, 739 F.3d 1, 9 (D.C. Cir. 2014) (“OLC is not authorized to make decisions about the FBI’s investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency’s policy.”).

And unstated in this Frankenstein structure is that the memo asks Ed O’Callaghan to make a decision that OLC has said that prosecutorial figures cannot make about the President.

This is why the comparison with Cheney is useful. John Yoo and Steven Bradbury wrote some unbelievably inexcusable memos to authorize the illegal actions Cheney wanted to pursue. They were used as (and indeed, at one point CIA asked for) advance prosecutorial declinations for crimes not yet committed. But with one exception from Bradbury, they maintained the form of an OLC memo. They started their memos with the assumptions that their ultimate audience had asked them to consider, performed the illusion of legal review, and provided the answer they knew their audience wanted.

Imagine if John Yoo had put David Addington or John Rizzo’s names on his memo as co-author; it would change the legal value of the memo entirely. Sure, we know that Yoo was right there in the room as Addington planned the torture program. But he nevertheless performed the illusion of legal advice.

Not so here.

I think McClanahan is right that the declarations being made to hide OLC memos from FOIA release have always been dodgy. I complained about Colburn pulling tricks in 2011 and 2016, for example. But to the extent that anyone looked at those memos — and to the extent that Barack Obama tried to break from the policies justified by them — they nevertheless had the appearance of regularity. They looked like legal advice, even if the legal advice was transparently shitty. And as a result, they made it very hard to hold people accountable for crimes they committed in reliance on the memo.

What separates this memo from the shitty memos used to justify torture is that it doesn’t have the appearance of regularity. It doesn’t even pretend that it’s not excusing (at least insofar as the pardon dangles) crimes in progress.

I agree with McClanahan that DOJ far too often is granted the presumption of regularity. The ultimate fate of this memo may break that habit.

But it also is different, and should be treated differently (and I hope CREW addresses this on appeal) because the process problems with this FOIA — the unexplained claims made by both Brinkmann and Straus Harris — were there to hide the fact that the process that created this memo was irregular, and therefore the claims themselves should not be accorded the presumption of regularity of a deliberative OLC memo.

And once you start to pull the threads on the attempts Barr made to protect Trump, they all tend to suffer from the same inept implementation. That inept — and, I suspect, at times illegal — implementation is what the Garland DOJ on its own or after being forced by the DC Circuit should use to distinguish Barr’s abuse of Attorney General prerogative from that entitled to defense out of an institutional basis. Barr not only abused his power (which Cheney also did) but he did so either without caring enough to pretend he was doing it right, or because he didn’t have the competence to do so (it also probably made things more difficult for him that he had to coerce so many career employees to effect his policies).

Both the torture memos and the Barr memo on the Mueller report were designed (at least in part) to immunize crimes in process. But Cheney’s willing OLC enabler at least insisted on pretending to be an objective lawyer.

The Rickety 702 System: Why It Continues to Fail

Back in 2009, I showed how a heavily redacted opinion rejecting what we now know to be a Yahoo challenge to the Protect America Act found that the predecessor to FISA 702 was constitutional because of the minimization procedures implementing certificates implementing the surveillance program. We learned seven years later that Yahoo hadn’t been provided those minimization procedures as part of their challenge, and indeed, DOJ withheld a key document from Reggie Walton, who presided over the challenge, until after he made key decisions in the case. That was also the first year the government finally presented details about the intended use of what had become 702 to FISC, most importantly that FBI was getting raw data they would encourage Agents to query, even at the assessment level. But even two years later, FISC was still just pushing FBI to follow rules imposed requiring them to track their queries of the raw 702 data. Two years later, after being presented with evidence that FBI still hasn’t complied with the law as currently written, outgoing presiding judge James Boasberg nevertheless reauthorized the program.

In general, Boasberg’s opinion reauthorizing 702 from last November describes violations pertaining to FBI access of 702 data for queries that have both a national security and criminal investigative function, FBI’s improper use of batch queries, and real problems with protections for attorney-client communications at NSA that could really blow up in the IC’s face one of these days, all problems FISC has been reviewing for years. The opinion also describes how training and COVID has delayed what will be an inevitable accounting for the fact that one key purpose of 702 when it was started — to select a fraction of all the intelligence NSA examines and put it into FBI coffers to make it available for querying — is a poor fit with the current law.

To understand one reason why this never gets better, I wanted to look at the structure of this and all other reauthorization opinions, because it never fixes some of the problems built in from the start.

The 702 opinions, like traditional FISA approvals, are all driven by the statute, ticking one after another required element off. If everything gets ticked, in order, then hundreds of thousands of people remain targeted for surveillance, along with all the people they communicate with.

Memorandum opinion and order

The opinion starts with introductory mapping. Even at that point, Boasberg describes this reauthorization as a “status-quo” reauthorization, meaning the request certificates from the government have remained largely the same and so don’t present any new issues to reconsider.

I. Government’s Submission

A. 2020 Certifications and Amendments: The opinion starts by laying out what gets included in the package, which basically includes the certificates, along with the targeting (NSA and FBI), querying (NSA, FBI, CIA, and NCTC), and minimization (NSA, FBI, CIA, and NCTC) procedures that implement the certificates.

B. Subject Matter of the Certification: This section describes, in heavily redacted fashion, what the certificates do and the rules and intent for all of them. Last we knew, there were three certifications: one targeting terrorists, one targeting proliferation, and one targeting “foreign governments,” focusing not just on other country’s spying, but also (to the extent it is a separate entity) their hacking. This section also notes, importantly, that these certificates renew prior authorizations; every year, FISC approves the new rules to apply to any new collections but also all the stuff already in the government’s possession. This is important, because analysts will continue to query (governed by one set of procedures) and report out (governed by minimization procedures) communications obtained in year’s past. Thus, every new approval covers all the stuff that came before (which also means the judges largely rely on their earlier decisions).

II. Review of the 2020 Certifications and Prior Certifications

One of the first things FISC does in these opinions is review the changes from past certifications, usually coming to the conclusion that, “we’ve approved these certifications going back 12 years, so we’ll just approve them again.” And some of this, as Boasberg admits in this opinion, is a matter of “check[ing]” procedural boxes — do the applications have the things required of them.

III. Targeting Procedures

Then each set of procedures is approved in isolation. First, the judge reviews whether targeting procedures fulfill the requirement that targeting procedures are “reasonably designed” to ensure that targets are outside the US and the procedures do not intentionally target communications entirely made up of US persons. For years, this has focused on making sure that if NSA or FBI get it wrong and target someone who’s in the US or is a US person, they detask the target quickly.

IV. Minimization and Querying Procedures

Then, the judge reviews whether the minimization procedures limit the dissemination of non-public US person data, allowing for its use for a foreign intelligence purpose and the sharing of evidence of a crime. Most opinions come with some language like this (from last year’s opinion) rationalizing — even though NSA and FBI have always refused to provide the data to test this assumption — that this content will be less impactful than traditional FISA collection.

In applying these statutory requirements, the Court is mindful that Section 702 acquisitions target persons reasonably believed to be non-U.S. persons outside the United States. Although such targets may communicate with or about U.S. persons, Section 702 acquisitions, as a general matter, are less likely to acquire information about U.S. persons that is unrelated to the foreign-intelligence purpose of the acquisition than, for example, electronic surveillance or physical search of a home or workplace within the United States that a target shares with U.S. persons.

Remember, unlike traditional FISA, there’s no individualized review of the foreign intelligence claims of these targets. So yeah, someone in Iran may have less contact with Americans, but the claims about that person require a far lower burden of foreign intelligence interest.

In last year’s opinion, Boasberg noted that the minimization (limits on dissemination) and querying (limits on searching the files) work together and analyzed them together. Nevertheless, with some more box-checking (for example, on whether each agency requires a record of queries made), Boasberg then concludes that since not much has changed, he can approve both the minimization and querying procedures.

Nothing detracts from the Court’s earlier findings [in past years] that these procedures as written are statutorily and constitutionally sufficient.

Remember: the FBI queries are the area where 702 has been particularly controversial of late, but the analysis of their application does not come here, in the section that approves them.

There is a discussion of attorney-client communications in here, particularly with regards to NSA’s use of attorney-client communications. But even after observing that,

The government does little by way of justifying the differing treatment of privileged communications by NSA,

Boasberg nevertheless relies on past approval for this same application to approve last year’s certificates.

[T]he Court has previously approved the dissemination provisions in the NSA procedures highlighted above, which unambiguously contemplate the dissemination of attorney-client privileged communications of the types being discussed here [redacted] subject to certain limitations and requirements.

[snip]

The Court again concludes that NSA’s procedures, as a whole and applied to it, an agency with no law-enforcement mission or authority, are reasonably designed to protect the substantial privacy interests in attorney-client communications, consistent with the need to exploit those communications for legitimate foreign-intelligence purposes.

Boasberg does “admonish[]” NSA to make sure none of this dissemination ends up in an FBI report. But having expressed concerns about how NSA exploits attorney-client communications, he nevertheless approves its use for foreign intelligence purposes.

V. Fourth Amendment Requirements

Then, in totally separate analysis, Boasberg (like judges before him) assesses whether all those procedures he just reviewed “are consistent with the Fourth Amendment.” This review, like all the ones since 2008, has relied on procedures to find that the program as a whole complies with the Fourth Amendment.

It does so by finding that the Targeting Procedures limit the collection to people not protected by the Fourth Amendment, and the interests of those swept up in that collection can be protected with Minimization and Querying Procedures.

For reasons explained above, the Court has found that the proposed targeting procedures, as written, are reasonably designed to limit acquisitions to those targets reasonably believed to be non-Untied States persons located outside the United States. The Fourth Amendment does not protect the privacy interests of such individuals. [citation omitted]

To the extent U.S.-person information is acquired under Section 702 — e.g., when a communication between a U.S. person and a Section 702 target is intercepted — the government can reduce the intrusiveness of the acquisition for Fourth Amendment purposes by restricting use or disclosure of such information.

After language about the import of national security interests, Boasberg then concludes that, “those procedures, as written, are consistent with the requirements of the Fourth Amendment.”

VI. Implementation and Compliance Issues

It’s only after ruling everything meets the legal requirements — all the boxes are checked — that Boasberg (and this opinion is in no way unique on the structure — turns to a list of compliance issues. Yes, this analysis feigns to be part of reviewing “how [the procedures] are implemented.” But Boasberg has already found the procedures, in the abstract, sufficient to comply with the Fourth Amendment.

As part of his analysis, Boasberg offers the following excuses for the FBI:

  • It took time for them to make the changes in their systems
  • It took time to train everyone
  • Once everyone got trained they all got sent home for COVID
  • Given mandatory training, personnel “should be aware” of the requirements, even if actual practice demonstrates they’re not
  • FBI doesn’t do that many field reviews
  • Evidence of violations is not sufficient evidence to find that the program inadequately protects privacy
  • The opt-out system for FISA material — which is very similar to one governing the phone and Internet dragnet at NSA until 2011 that also failed to do its job — failed to do its job
  • The FBI has always provided national security justifications for a series of violations involving their tracking system where an Agent didn’t originally claim one
  • Bulk queries have operated like that since November 2019
  • He’s concerned but will require more reporting

At the end of this section, Boasberg issued a 5-bullet conclusion that the certifications check all the boxes, the 2020 certifications comply with FISA and the Fourth Amendment, the minimization procedures (incorporating therein the querying procedures) mean access to prior collections complies with FISA and the Fourth Amendment, and one querying procedure is approved for the 2020 collection.

By conducting first an abstract analysis and only then an analysis of what that has meant in past practice, and where real concerns remain to require ongoing reporting, Boasberg “gets to yes” (as Brennan’s Liza Goitein aptly wrote). Boasberg repeatedly said he didn’t have evidence to assess whether this really works to meet the requirements, but nevertheless signed the reauthorization.

Reporting requirements

Boasberg doesn’t provide a heading for his reporting requirements. But as part of his order approving the certifications, he lays out all the reports that he and past judges have required to make up for the fact that there’s no evidence these protections work. There are 11 old ones and two new ones.

Two years ago, as part of the most rigorous amicus intervention known to date, the amici recommended that Boasberg consider the querying at the heart of the FBI’s use of 702 as its own Fourth Amendment consideration. Even though Boasberg refused, FBI still threw a fit and appealed his demand that they comply with the law as written. And this opinion, as noted, still lumps the abstract analysis of compliance of minimization procedures and querying in together.

Yet the document itself, by separating the box-checking from the concepts the box-checking is supposed to fulfill, and separating both of those from the program as implemented, and even still authorizing a program while deferring the obvious proof of compliance by simply asking for 13 different reports, often of non-compliance, doesn’t actually do what it is supposed to do.

Unless what it is supposed to do is give the patina of legal review while instead turning judges into a bureaucratic functionary who can, once a year, offer some compliance suggestions that may not be implemented.

Former Presiding FISA Judge John Bates’ Curious Treatment of White Person Terrorism

By chance of logistics, the men and women who have presided over a two decade war on Islamic terrorism are now presiding over the trials of those charged in January 6.

To deal with the flood of defendants, the Senior Judges in the DC District have agreed to pick up some cases. And because FISA mandates that at least three of the eleven FISA judges presiding at any given time come from the DC area, and because the presiding judge has traditionally been from among those three, it means a disproportionate number of DC’s Senior Judges have served on the FISA Court, often on terms as presiding judge or at the very least ruling over programmatic decisions that have subjected millions of Americans to collection in the name of the war on terror. Between those and several other still-active DC judges, over 60 January 6 cases will be adjudicated by a current or former FISA judge.

Current and former FISA judges have taken a range of cases with a range of complexity and notoriety:

  • Royce Lamberth served as FISC’s presiding judge from 1995 until 2002 and failed in his effort to limit the effect of the elimination of the wall between intelligence and criminal collection passed in the PATRIOT Act. And during a stint as DC’s Chief Judge he dealt with the aftermath of the Boumediene decision and fought to make the hard won detention reviews won by Gitmo detainees more than a rubber stamp. Lamberth is presiding over 10 cases with 14 defendants. A number of those are high profile cases, like that of Jacob Chansley (the Q Shaman), Zip Tie Guy Eric Munchel and his mother, bullhorn lady and mask refusenik Rachel Powell, and Proud Boy assault defendant Christopher Worrell.
  • Colleen Kollar-Kotelly is still an active DC District judge, but she served as FISC presiding judge starting way back in 2002, inheriting the difficulties created by Stellar Wind from Lamberth. She’s the one who redefined “relevant to” in an effort to bring the Internet dragnet back under court review. She is presiding over ten January 6 cases with 12 defendants. That includes Lonnie Coffman, who showed up to the insurrection with a truck full of Molotov cocktails, as well as some other assault cases.
  • John Bates took over as presiding judge of FISC on May 19, 2009. In 2010, he redefined “metadata” so as to permit the government to continue to use the Internet dragnet; the government ultimately failed to make that program work but FISC has retained that twisted definition of “metadata” nevertheless. In 2011, he authorized the use of “back door searches” on content collected under FISA’s Section 702. In 2013, Bates appears to have ruled that for Islamic terrorists, the FBI can get around restrictions prohibiting surveillance solely for First Amendment reasons by pointing to the conduct of an American citizen suspect’s associates, rather than his or her own. And while not a FISA case, Bates also dismissed Anwar al-Awlaki’s effort to require the government to give him some due process before executing him by drone strike; at the time, the government had presented no public evidence that Awlaki had done more than incite violence. Bates has eight January 6 cases with nine defendants (as well as some unrelated cases), but he is presiding over several high profile ones, including the other Zip Tie Guy, Larry Brock, the scion of a right wing activist family, Leo Bozell IV, and former State Department official Freddie Klein.
  • Reggie Walton, who took over as presiding judge in 2013 but who, even before that, oversaw key programmatic decisions starting in 2008, showed a willingness both on FISC and overseeing the Scooter Libby trial to stand up to the Executive. That includes his extended effort to clean up the phone and Internet dragnet after Bush left in 2009, during which he even shut down part or all of the two dragnets temporarily. Walton is presiding over six cases with eight defendants, most for MAGA tourism.
  • Thomas Hogan was DC District’s head judge in the 2000s. In that role, he presided over the initial Gitmo detainees’ challenges to their detention (though many of the key precedential decisions on those cases were made by other judges who have since retired). Hogan then joined FISC and ultimately took over the presiding role in 2014 and in that role, affirmatively authorized the use of Section 702 back door searches for FBI assessments. Hogan is presiding over 13 cases with 18 defendants, a number of cases involving multiple defendants (including another set of mother-son defendants, the Sandovals). The most important is the case against alleged Brian Sicknick assailants, Julian Khater and George Tanios.
  • James Boasberg, who took over the presiding position on FISC on January 1, 2020 but had started making initial efforts to rein in back door searches even before that, is presiding over about eight cases with ten defendants, the most interesting of which is the case of Aaron Mostofsky, who is himself the son of a judge.
  • Rudolph Contreras, who like Kollar-Kotelly and Boasberg is not a senior judge, is currently a FISC judge. He has six January 6 cases with seven defendants, most MAGA tourists accused of trespassing. There’s a decent chance he’ll take over as presiding judge when Boasberg’s term on FISC expires next month.

Of the most important FISA judges since 9/11, then, just Rosemary Collyer is not presiding over any January 6 cases.

Mind you, it’s not a bad thing that FISA judges will preside over January 6 cases. These are highly experienced judges with a long established history of presiding over other cases, ranging the gamut and including other politically charged high profile cases, as DC District judges do.

That said, in their role as FISA judges — particularly when reviewing programmatic applications — most of these judges have been placed in a fairly unique role on two fronts. First, most of these judges have been forced to weigh fairly dramatic legal questions, in secret, in a context in which the Executive Branch routinely threatens to move entire programs under EO 12333, thereby shielding those programs from any oversight by a judge. These judges responded to such situations with a range of deference, with Royce Lamberth and Reggie Walton raising real stinks and — the latter case — hand-holding on oversight over the course of most of a year, to John Bates and to a lesser degree Thomas Hogan, who often complained at length about abuses before expanding the same programs being abused. Several — perhaps most notably Kollar-Kotelly when she was asked to bring parts of Stellar Wind under FISA — have likewise had to fight to affirm the authority of the entire Article III branch, all in secret.

Ruling on these programmatic FISA applications also involved hearing expansive government claims about the threat of terrorism, the difficulty and necessity of identifying potential terrorists before they attack, and the efficacy of the secret programs devised to do that (the judges who also presided over Gitmo challenges, which includes several on this list, also fielded similar secret claims about the risk of terrorism). Some of those claims — most notably, about the efficacy of the Section 215 phone dragnet — were wildly overblown. In other words, to a degree unmatched by most other judges, these men and women were asked to balance the rights of Americans against secret government claims about the risks of terrorism.

Now these same judges are part of a group being asked to weigh similar questions, but about a huge number of predominantly white, sometimes extremist Christian, defendants, but to do so in public, with defense attorneys challenging their every decision. Here, the balance between extremist affiliation and First Amendment rights will play out in public, but against the background of a two decade war on terror where similar affiliation was criminalized, often in secret.

Generally, the District judges in these cases have not done much on the cases yet, as either Magistrates (on initial pre-indictment appearances) or Chief Judge Beryl Howell (on initial detention disputes) have handled some of the more controversial issues, and in a few cases, Ketanji Brown Jackson presided over arraignments before she started handing off cases in anticipation of her Circuit confirmation process.

But several of the judges have written key opinions on detention, opinions that embody how differently the conduct of January 6 defendants looks to different people.

Lamberth, for example, authored the original detention order for “Zip Tie Guy” Eric Munchel and his mom, Lisa Eisenhart. Even while admitting that Munchel made efforts to limit any vandalization during the riot, Lamberth nevertheless deemed Munchel’s actions a threat to our constitutional government.

The grand jury charged Munchel with grave offenses. In charging Munchel with “forcibly enter[ing] and remain[ing] in the Capitol to stop, delay, and hinder Congress’s certification of the Electoral College vote,” Indictment 1, ECF No. 21, the grand jury alleged that Munchel used force to subvert a democratic election and arrest the peaceful transfer of power. Such conduct threatens the republic itself. See George Washington, Farewell Address (Sept. 19, 1796) (“The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.”). Indeed, few offenses are more threatening to our way of life.

Munchel ‘s alleged conduct demonstrates a flagrant disregard for the rule of law. Munchel is alleged to have taken part in a mob, which displaced the elected legislature in an effort to subvert our constitutional government and the will of more than 81 million voters. Munchel’ s alleged conduct indicates that he is willing to use force to promote his political ends. Such conduct poses a clear risk to the community.

Defense counsel’s portrayal of the alleged offenses as mere trespassing or civil disobedience is both unpersuasive and detached from reality. First, Munchel’s alleged conduct carried great potential for violence. Munchel went into the Capitol armed with a taser. He carried plastic handcuffs. He threatened to “break” anyone who vandalized the Capitol.3 These were not peaceful acts. Second, Munchel ‘s alleged conduct occurred while Congress was finalizing the results of a Presidential election. Storming the Capitol to disrupt the counting of electoral votes is not the akin to a peaceful sit-in.

For those reasons, the nature and circumstances of the charged offenses strongly support a finding that no conditions of release would protect the community.

[snip]

Munchel gleefully entered the Capitol in the midst of a riot. He did so, the grand jury alleges, to stop or delay the peaceful transfer of power. And he did so carrying a dangerous weapon. Munchel took these actions in front of hundreds of police officers, indicating that he cannot be deterred easily.

Moreover, after the riots, Munchel indicated that he was willing to undertake such actions again. He compared himself-and the other insurrectionists-to the revolutionaries of 1776, indicating that he believes that violent revolt is appropriate. See Pullman, supra. And he said “[t]he point of getting inside the building is to show them that we can, and we will.” Id. That statement, particularly its final clause, connotes a willingness to engage in such behavior again.

By word and deed, Munchel has supported the violent overthrow of the United States government. He poses a clear danger to our republic.

This is the opinion that the DC Circuit remanded, finding that Lamberth had not sufficiently considered whether Munchel and his mother would pose a grave future threat absent the specific circumstances present on January 6. They contrasted the mother and son with those who engaged in violence or planned in advance.

[W]e conclude that the District Court did not demonstrate that it adequately considered, in light of all the record evidence, whether Munchel and Eisenhart present an identified and articulable threat to the community. Accordingly, we remand for further factfinding. Cf. Nwokoro, 651 F.3d at 111–12.

[snip]

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way. See Simpkins, 826 F.2d at 96 (“[W]here the future misconduct that is anticipated concerns violent criminal activity, no issue arises concerning the outer limits of the meaning of ‘danger to the community,’ an issue that would otherwise require a legal interpretation of the applicable standard.” (internal quotation and alteration omitted)). And while the District Court stated that it was not satisfied that either appellant would comply with release conditions, that finding, as noted above, does not obviate a proper dangerousness determination to justify detention.

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand. [my emphasis]

The DC Circuit opinion (joined by Judith Rogers, who ruled for Gitmo detainees in Bahlul and a Boumediene dissent) was absolutely a fair decision. But it is also arguably inconsistent with the way that the federal government treated Islamic terrorism, in which every time the government identified someone who might engage in terrorism (often using one of the secret programs approved by this handful of FISA judges, and often based off far less than waltzing into the Senate hoping to prevent the certification of an election while wielding zip ties and a taser), the FBI would continue to pursue those people as intolerably dangerous threats. Again, that’s not the way it’s supposed to work, but that is how it did work, in significant part with the approval of FISA judges.

That is, with Islamic terrorism, the government treated potential threats as threats, whereas here CADC required Lamberth to look more closely at what could make an individual predisposed to an assault on our government — a potential threat — as dangerous going forward. Again, particularly given the numbers involved, that’s a better application of due process than what has been used for the last twenty years, but it’s not what happened during the War on Terror (and in weeks ahead, this will be relitigated with consideration of whether Trump’s continued incitement makes these defendants an ongoing threat).

Now compare Lamberth’s order to an order John Bates issued in the wake of and specifically citing the CADC ruling, releasing former State Department official Freddie Klein from pretrial detention. Klein is accused of fighting with cops in the Lower West Terrace over the course of half an hour.

Bates found that Klein, in using a stolen riot shield to push against cops in an attempt to breach the Capitol, was eligible for pre-trial detention, though he expressed skepticism of the government’s argument that Klein had wielded the shield as a dangerous weapon).

The Court finds that Klein is eligible for pretrial detention based on Count 3. Under the BRA, a “crime of violence” includes “an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 3156(a)(4)(A). The Supreme Court in Johnson v. United States defined “physical force” as “force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010); see also Def.’s Br. at 9.

[snip]

6 The Court has some doubts about whether Klein “used” the stolen riot shield as a dangerous weapon. The BRA does not define the term, but at least for purposes of § 111(b), courts have held that a dangerous weapon is any “object that is either inherently dangerous or is used in a way that is likely to endanger life or inflict great bodily harm.” See United States v. Chansley, 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021) (Lamberth, J.) (collecting cases). A plastic riot shield is not an “inherently dangerous” weapon, and therefore the question is whether Klein used it in a way “that is likely to endanger life or inflict great bodily harm.” The standard riot shield “is approximately forty-eight inches tall and twenty-four inches wide,” see Gov’t’s Br. at 13, and the Court disagrees with defense counsel’s suggestion that a riot shield might never qualify as a dangerous weapon, even if swung at an officer’s head, Hr’g Tr. 18:18–25, 19:1–11. See, e.g., United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963) (finding that metal and plastic chair qualified as a dangerous weapon when “wielded from an upright (overhead) position and brought down upon the victim’s head”). But it is a close call whether Klein’s efforts to press the shield against officers’ bodies and shields were “likely to endanger life or inflict great bodily harm.” See Chansley, 2021 WL 861079, at *7.

But Bates ruled that there were certain things about the case against Klein — that he didn’t come prepared for combat, that he didn’t bring a weapon with him and instead just made use of what he found there, that any coordination he did involved ad hoc cooperation with other rioters rather than leadership throughout the event — that distinguished him from other defendants who (he suggested) should be detained, thereby limiting the guidelines laid out by CDC.

Bates’ decision on those points is absolutely fair. He has distinguished Klein from other January 6 defendants who, he judges, contributed more to the violence.

But there are two aspects of Bates’ decision I find shocking, especially from the guy who consistently deferred to Executive Authority on matters of national security and who sacrificed all of our communicative privacy in the service of finding hidden terrorist threats to the country. First, Bates dismissed the import of Klein’s sustained fight against cops because — he judged — Klein was only using force to advance the position of the mob, not trying to injure anyone.

The government’s contention that Klein engaged in “what can only be described as hand-to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol), with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.

[snip]

Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. [my emphasis]

Bates describes that Klein wanted to use force in the service of occupying the building, not harming individual cops.

Of course, using force to occupy a building in service of halting the vote count is terrorism, but Bates doesn’t treat it as such.

Even more alarmingly, Bates flips how Magistrate Zia Faruqui viewed a government employee like Klein turning on his own government. The government had argued — and Faruqui agreed — that when a federal employee with Top Secret clearance attacks his own government, it is not just a crime but a violation of the Constitutional oath he swore to protect the country against enemies foreign and domestic.

Bates — after simply dismissing the import of Klein’s admittedly limited criminal history that under any other Administration might have disqualified him from retaining clearance — describes what Klein did as a “deeply concerning breach of trust.”

The government also argues that “Klein abdicated his responsibilities to the country and the Constitution” on January 6 by violating his oath of office as a federal employee to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Id. at 24–25 (quoting 5 U.S.C. § 3331). The fact that, as a federal employee, Klein actively participated in an assault on our democracy to thwart the peaceful transfer of power constitutes a substantial and deeply concerning breach of trust. More so, too, because he had been entrusted by this country to handle “top secret” classified information to protect the United States’ most sensitive interests. In light of his background, Klein had, as Magistrate Judge Faruqui put it, every “reason to know the acts he committed” on January 6 “were wrong,” and yet he took them anyway. Order of Detention Pending Trial at 4. Klein’s position as a federal employee thus may render him highly culpable for his conduct on January 6. But it is less clear that his now-former employment at the State Department heightens his “prospective” threat to the community. See Munchel, 2021 WL 1149196, at *4. Klein no longer works for or is affiliated with the federal government, and there is no suggestion that he might misuse previously obtained classified information to the detriment of the United States. Nor, importantly, is he alleged to have any contacts—past or present—with individuals who might wish to take action against this country. [my emphasis]

Bates then argues that Klein’s ability to obtain clearance proves not that he violates oaths he takes (the government argument adopted by Faruqui), but that he has the potential to live a law-abiding life.

Ultimately, Klein’s history—including his ability to obtain a top-level security clearance—shows his potential to live a law-abiding life. His actions on January 6, of course, stand in direct conflict with that narrative. Klein has not—unlike some other defendants who have been released pending trial for conduct in connection with the events of January 6—exhibited remorse for his actions. See, e.g., United States v. Cua, 2021 WL 918255, at *7–8 (D.D.C. Mar. 10, 2021) (Moss, J.) (weighing defendant’s deep remorse and regret in favor of pretrial release). But nor has he made any public statements celebrating his misconduct or suggesting that he would participate in similar actions again. And it is Klein’s constitutional right to challenge the allegations against him and hold the government to its burden of proof without incriminating himself at this stage of the proceedings. See United States v. Lawrence, 662 F.3d 551, 562 (D.C. Cir. 2011) (“[A] district court may not pressure a defendant into expressing remorse such that the failure to express remorse is met with punishment.”). Hence, despite his very troubling conduct on January 6, the Court finds on balance that Klein’s history and characteristics point slightly toward release.

In short, Bates takes the fact that Klein turned on the government he had sworn to protect and finds that that act weighs in favor of release.

Bates judges that this man, whom he described as having committed violence to advance the goal of undermining an election, nevertheless finds that — having already done that — Klein does not pose an unmanageable prospective threat.

Therefore, although it is a close call, the Court ultimately does not find that Klein poses a substantial prospective threat to the community or any other person. He does not pose no continuing danger, as he contends, given his demonstrated willingness to use force to advance his personal beliefs over legitimate government objectives. But what future risk he does present can be mitigated with supervision and other strict conditions on his release.

Again, it’s not the decision itself that is troubling. It’s the thought process Bates used, both for the way Bates flips Klein’s betrayal of his oath on its head, and for the way that Bates views the threat posed by a man who already used force in an attempt to coerce a political end. And it’s all the more troubling knowing how Bates has deferred to the Executive’s claims about the nascent threat posed even by people who have not, yet, engaged in violence to coerce a political end.

Bates similarly showed no deference to the government’s argument that Larry Brock, a retired Lieutenant Colonel who also brought zip ties into the Senate chamber, should have no access to the Internet given really inflammatory statements on social media, including a call for “fire and blood” as early as November. Bates decided on his own that Probation could sufficiently monitor Brock’s Internet use, comparing Brock to (in my opinion) two unlike defendants to justify the decision. Again, the decision itself is absolutely reasonable, but for the guy who decided the government could monitor significant swaths of transnational Internet traffic out of a necessity to identify potential terrorists, for a guy who okayed the access of US person’s content with no warrant, it’s fairly remarkable that he hasn’t deferred to the government about the danger Brock poses on the Internet (to say nothing of Brock’s likely sophistication at evading surveillance).

Again, I’m not complaining about any of these opinions. The outcomes are all reasonable. It is genuinely difficult to fit the events of January 6 into our existing framework (and perhaps that’s a good thing). Plus, there is such a range of fact patterns that even in the Munchel opinion give force to the mob even while trying to adjudicate individuals’ actions.

But either because these discussions are public, or because we simply think about white person terrorism differently, less foreign, perhaps, than we do Islamic terrorism, the very same judges who’ve grappled with these questions for the past two decades don’t necessarily have the ready answers they had in the past.

FISA Judges January 6 cases

Lamberth:

Kollar-Kotelly:

Bates:

Walton:

Hogan:

Boasberg:

Contreras:

Failsons and Kraken Conspiracies: Three Mike Flynn Hypotheticals Trump May Have Tried to Preemptively Pardon

In a hearing in the BuzzFeed FOIA case today, Judge Reggie Walton (who always likes to chat about his conversations with his colleagues in the Prettyman judge’s dining room), said the Flynn pardon might be too broad.

U.S. District Judge Reggie Walton said at a hearing Friday that he doesn’t think U.S. District Judge Emmet Sullivan, his colleague presiding over the Flynn case, “has a lot of options in reference to what he does” after the pardon was granted, “unless he takes the position that the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.”

“I don’t know what impact that would have, what decision he would make, if he makes that determination that the pardon of Mr. Flynn is for a period that the law does not permit. I don’t know if that’s correct or not,” the judge continued. “Theoretically, the decision could be reached because the wording in the pardon seems to be very, very broad. It could be construed, I think, as extending protections against criminal prosecutions after the date the pardon was issued.”

“I don’t know if Judge Sullivan will make that determination or not,” Walton added.

Walton seemed to be suggesting that Sullivan might have a way to hold Flynn accountable in the future, unless the pardon as written is too broad.

That has set off a debate among Legal Twitter arguing what the pardon should mean, not what it does say.

To be sure, the first part of the Flynn pardon is undeniably valid. It pardons Flynn [I’ve added the numbers; which are different from the less helpful ones DOJ uses in their motion],

(1) for the charge of making false statements to Federal investigators, in violation of Section 1001, Title 18, United States Code, as charged in the information filed under docket number 1:17-CR-00232-EGS in the United States District Court for the District of Columbia; (2) for any and all possible offenses set forth in the Information and Statement of Offense filed under that docket number (3) or that might arise, or be charged, claimed, or asserted, in connection with the proceedings under that docket number

This is already too broad, for one reason I’ll get into. But on its face, that language pardons:

  1. The false statements as laid out in the criminal information
  2. The crime of being an undisclosed foreign agent for Turkey, lying to DOJ about it, and conspiring to lie about it
  3. The lies Flynn told Judge Emmet Sullivan in a bid to get out of his prior guilty allocutions

Those are, incidentally, the crimes laid out in the government’s motion to dismiss the case as moot.

The pardon not only encompasses the Section 1001 charge that is the subject of the government’s pending motion to dismiss (Doc. 198), but also any possible future perjury or contempt charge in connection with General Flynn’s sworn statements and any other possible future charge that this Court or the court-appointed amicus has suggested might somehow keep this criminal case alive over the government’s objection (e.g., a charge under the Foreign Agents Registration Act, Section 618(a), Title 22, United States Code, arising out of the facts set forth in the Statement of Offense).

There is nothing controversial about this part of the pardon (aside from the rank corruption of it). It is clear that the pardon is intended to and does cover those crimes that Flynn committed.

But the pardon goes beyond pardoning Flynn for those crimes. It also pardons Flynn for,

any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel appointed on May 17, 2017, including the initial Appointment Order No. 3915-2017 and subsequent memoranda regarding the Special Counsel’s investigatory authority; and any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.

As I noted, it purports to pardon Flynn for any crime that arises out of “facts … known to … the investigation of the Special Counsel,” any crime related to it, or anything arising from the grand juries (not time denominated or named) that investigated Flynn.

I think that is an attempt to stave off any crimes based off information collected as part of this investigation, even if the crime happens in the future. Here are three not-at-all unlikely scenarios:

Flynn reneges on his sworn testimony in a retrial against Bijan Kian in which Mike Flynn Jr also gets charged

Flynn’s partner, Bijan Kian, was found guilty of conspiring to lie about working for Turkey with Flynn in 2016. But then the judge in the case, Anthony Trenga, overturned that verdict. The government is appealing his order. One possible outcome of that appeal is that the government will retry Kian. With Flynn’s plea deal off the table, the government would be free to include Flynn Jr in any potential retrial.

Flynn testified to an EDVA grand jury, under oath, that he knew that he (and so by association, his son and Kian) were secretly working for the government of Turkey in 2016. Prosecutors made a last-ditch attempt to make Flynn a co-conspirator in Kian’s last trial. In a superseding indictment they could make him an unindicted co-conspirator (which would make his communications admissible without his testimony). But it would be very useful to have his testimony as well.

Normally, prosecutors could force a witness to hew to his grand jury testimony on penalty of perjury. In this case, however, Trump has purported to pardon Flynn for anything pertaining to that grand jury. If Flynn lied at trial, could he be charged?

The government discovers further evidence of Flynn’s work as a foreign agent by tying Mueller evidence to evidence withheld

In both the case of Trump outreach to Russia and the case of Flynn’s work with Ekim Alptekin, there’s reason to believe that Flynn and — in the former case — the Trump campaign succeeded in withholding information for the entirety of the Mueller investigation but which DOJ discovered afterwards (I won’t get into the details of what that is here — again, I’ll say more in January).

Flynn’s lies about this information to Mueller or EDVA prosecutors clearly are covered by the pardon.

But if the information reflected an ongoing relationship — existing even now! — with either Russia or Turkey, it would impose registration requirements on Flynn. The government might argue, however, that because these relationships began prior to the period of the Mueller investigation and might never have been discovered if not for the warrants and subpoenas used in the Mueller or EDVA investigations, they are therefore related and Flynn’s prospective failure to register is covered by his pardon. I’m suggesting that the government seems to want to set up a claim that anything that stems from the Mueller investigation would be fruit of a poisonous tree and immune from prosecution.

An ongoing Kraken conspiracy to pay off the pardon

Sometime in the summer, Sidney Powell told Trump not to pardon Flynn, something she entered into the docket before Sullivan by admitting it in the September hearing. She also admitted to Sullivan she had talked repeatedly to Trump’s campaign “lawyer” Jenna Ellis about Flynn’s case. In the following weeks after she spoke with Trump and Ellis, prosecutors fed her information from Jeffrey Jensen’s investigation — some of it altered — that ultimately served as part of a Trump attack on Joe Biden.

Then, after the election, Powell — at first claiming to be representing Trump — took a lead role in undermining the legal outcome of the election in multiple states. Almost immediately, purportedly because Trump believed that Sidney Powell made him look bad in a way that Rudy and Jenna Ellis and Joe DiGenova did not, Trump made clear to distance himself from Powell. The next day he pardoned Flynn. Days later, Flynn called for a coup to overturn the election.

Powell’s use of evidence in Flynn’s case to support false campaign attacks on Joe Biden is already irretrievably tied to Sullivan’s docket. Indeed, he now has real reason to question why Powell was talking with Ellis about this case, why (before the document alteration was discovered) she affirmatively asked Trump to hold off on the pardon only to embrace it later, and what tie there is between the altered documents and the attack Trump launched in the first debate against Biden. Judge Sullivan has reason to ask whether the fraud on the court in this docket is tied to some benefit for Trump, and whether that benefit in some way is tied to the pardon.

But if there is a tie, Sullivan (and Joe Biden’s DOJ) may have reason to ask whether this is a continuing conspiracy, whether Powell and Flynn’s actions after the pardon are part of delivering on a corrupt agreement made before the pardon. It is easy to see how the fraud on the court that remains before Sullivan could be tied to ongoing actions.

DOJ would seem to suggest that those actions, too, are covered by Trump’s pardon.

Again, all three of these scenarios are easily foreseeable. They are the actual fact patterns before Judge Sullivan and a potential Biden Administration.

Unsealed Mueller Report Passages Confirm the Then-Ongoing Investigation into Roger Stone

BuzzFeed released the last bits of the Mueller Report that Judge Reggie Walton ordered released late last night. I will have far more to say about them between meetings later today.

But for now, I want to point to the key paragraph on why Mueller didn’t charge Roger Stone in the hack-and-leak case. Basically, it says that neither Corsi’s testimony nor “other evidence currently available to the Office” is sufficient to prove that when Stone was coordinating the Podesta file dump, he knew that Russians continued to hack Democratic targets.

But then it includes a footnote that says there are “ongoing investigations” (plural) that the DC US Attorney’s Office will continue to pursue to try to address these factual uncertainties.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279 As explained in Volume I, Section III.D.1, supra, Corsi’s accounts of his interactions with Stone on October 7, 2016 are not fully consistent or corroborated. Even if they were, neither Corsi’s testimony nor other evidence currently available to the Office is sufficient to prove beyond a reasonable doubt that Stone knew or believed that the computer intrusions were ongoing at the time he ostensibly encouraged or coordinated the publication of the Podesta emails. Stone’s actions would thus be consistent with (among other things) a belief that he was aiding in the dissemination of the fruits of an already completed hacking operation perpetrated by a third party, which would be a level of knowledge insufficient to establish conspiracy liability. See State v. Phillips, 82 S.E.2d 762, 766 (N.C. 1954) (“In the very nature of things, persons cannot retroactively conspire to commit a previously consummated crime.”) (quoted in Model Penal Code and Commentaries § 5.03, at 442 (1985)).

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

As I described in May, in fall 2018, Mueller’s team took a bunch of investigative steps that they kept under seal. Then, they used the witness tampering case to obtain more information.

It’s unclear how much closer prosecutors got to proving the hack-and-leak case (though they obviously obtained Andrew Miller’s testimony, which was evidence not “currently available” when the Mueller Report was written). But there also appears to be evidence that, by intervening in the Stone sentencing, leading all the prosecutors to drop off the case, Bill Barr killed that part of the investigation.

Prosecutors were still working on proving Stone’s role in the hack-and-leak in March 2019. What’s unclear is how much closer they had since gotten to charging it before Barr intervened.