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In a Filing Claiming He’s Innocent, Mike Flynn’s Lawyers Accuse Mike Flynn of Lying Under Oath

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Seven months after hiring Sidney Powell to blow up his plea deal, Mike Flynn has formally moved to do just that. The filing claims he is doing so because the government was mean — or more formally, “bad faith, vindictiveness, and breach of the plea agreement.”

Flynn claims being asked to testify in accordance with his grand jury testimony required him to lie

The core of Flynn’s argument is that the government newly asked him to testify that he knowingly lied in his FARA filing last summer, which led him to refuse, which led the government to decide not to use him as a witness and instead attempt (unsuccessfully) to name Flynn as a co-conspirator to access what his testimony would have otherwise given, which led them to have Judge Anthony Trenga throw out their convictions post-trial.

It’s the same argument that Flynn made last summer, even before the trial — which I showed at the time to misrepresent:

  • The point of the FARA filing (to change it from a commercial agreement to one focusing on Turkey)
  • The Covington & Burling notes
  • The statements prosecutors had made in court about whether Flynn was a co-conspirator with Bijan Kian and Ekim Alptekin

Flynn bolsters that shoddy argument with citations from the Bijan Kian trial that he claims show that the judge in that case, Anthony Trenga, agrees with him about his company’s underlying tie to Turkey, but in fact only shows that after Flynn blew up his plea deal, it fucked the government’s case against Kian.

They add just one substantive piece of evidence to all that: that the government took out a line saying “FLYNN then and there knew the following” in his statement of offense.

But even as that redline makes clear, the underlying lies (save the one about Alptekin’s cut-out deal) were all laid out before that language. Moreover, Flynn testified to all those things laid out there in his grand jury testimony, under oath.

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

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

Q: Would it [sic] fair to say that the project was going to be principally for the benefit of the government of Turkey or high-ranking Turkish officials?

A: Yes, yeah.

[snip]

Q: What was the principle focus of the work product that FIG did produce on the project?

A: The eventual work product or products that we had come up with was really focusing on Gulen.

Q: Was any work done on researching the state of the business climate in Turkey?

A: Not that I’m aware of or none that I recall.

[snip]

Q: Is it fair to say that Mr. Alptekin acted as a go-between between FIG and Turkish government officials?

A: Yes.

[snip]

Q: What work product do you know of that was not about Gulen?

A: I don’t think there was anything that we had done that had anything to do with, you know, anything else like business climates or stuff like that.

[snip]

Q: Do you see the byline of the article? [referring to Flynn’s November 8, 2016 op-ed]

A: Yep, I do, yeah.

[snip]

Q: Whose name is listed as the author of the op-ed?

A: My name.

Q: How did you first find out that this op-ed was in the works?

A: Bijan sent me a draft of it a copy of days prior, maybe about a week prior.

[snip]

Q: Did you sketch out specific ideas for this particular op-ed with him before you saw the draft?

A: No.

As noted, these sworn statements conflict in key ways with the notes of what Flynn told Covington (meaning he lied to the lawyers drawing up his FARA filing).

And they conflict with the evidence that Flynn’s own filing says is proof that he was honest with Covington, because Flynn offered the false “commercial activity” and “radical Islam” comments he disavowed in his grand jury.

12 ECF No. 150-4 and 6; ECF No. 98-3 at Ex. 7 (Entitled Statement of the Problem: How do we restore confidence in the government of the Republic of Turkey and expose the Fethullah Gulen cult in the United States”); ECF No. 98-3 at Ex. 8 and 8-A (Covington Feb. 22, 2017 Notes: Commercial ActivityàCrystalized à Gulen); ECF No. 150-5 at 4; 150-6 at 2.

13 ECF No. 150-5, FBI 302 of Brian Smith on June 21, 2018, never produced by the government to Mr. Flynn (yet clear Brady evidence long exonerating Mr. Flynn of one of the prosecution’s most ridiculous allegations regarding the “initiation” of the only op-ed written and published in connection with the project). Even the recently filed, never produced FBI 302s prove that the FBI and prosecutors knew in mid-2018 from Covington lawyer Brian Smith that he: “was aware of the September 2016 meeting in New York City (NYC) where FLYNN and RAFIEKIAN met with Turkish government officials.” ECF No.150-5 at 5. “The meeting primarily focused on radical Islam. Briefly during the meeting, FIG described their business for ALPTEKIN/INOVO.” Id. “The topic of GULEN was brought up by Turkish officials at the meeting.” Id.

Effectively, then, Powell provides evidence that her client lied, either to the lawyers doing the FARA filing and/or in the grand jury, to say nothing of his two guilty pleas under oath.

Flynn’s lawyers also provide claims that are entirely irrelevant to the charges against Flynn.

Former FBI official Brian McCauley attended the New York meeting with the Turks. As McCauley testified in Rafiekian, the Turks gave no one instructions in that meeting, and Alptekin was not happy with any of FIG’s work. McCauley slapped down most of his ideas. See Ex. 10.

Significantly, Flynn also told Covington in their first meeting, that he briefed DIA before meeting the Turks in New York in September 2016.

And she makes much of the fact that Flynn didn’t review his FARA filing with Kian — which is irrelevant to whether he signed his name to filings that made claims that contradict with his sworn testimony in the grand jury.

On June 25, 2018, while represented by Covington—months before the government filed its sentencing motion and bragged about Mr. Flynn’s full cooperation and special assistance at his scheduled sentencing in December 2018—Mr. Flynn specifically told them:

I told this to you the other day, I don’t go over the FARA filing with Bijan [Rafiekian] at all. I don’t know if that makes any different to you all. But it wasn’t . . . learn a lot of things in hindsight. Would it have adjusted what I, how I stated, how I filled out, can’t say that it may have adjusted what I filled out; can’t say it would or would not have.1

It’s genuinely unclear whether Flynn’s lawyers are simply unclear on the concept, or whether they are just gleefully gaslighting Judge Emmet Sullivan with the expectation that won’t piss him off.

Flynn’s lawyers repeat the claim that Rob Kelner was conflicted that Judge Sullivan already rejected

In addition to having to claim that Flynn didn’t refuse to provide testimony in accord with his grand jury testimony, Flynn’s team also must sustain a claim that Rob Kelner was conflicted when he advised Flynn to take a plea deal that — had he not run his mouth, he would have already served his probation and been done.

They don’t actually argue that. Instead, they argue that after Flynn blew up his plea deal, the government obtained testimony from Kelner that — they believed — might sustain the prosecution. Flynn’s team claims that the prosecutor asked tricky questions of his fellow lawyer.

The prosecutors told the new defense lawyers that they would question Mr. Kelner in his July 3, 2019, interview about the Covington notes new counsel had just provided to the government—showing that Mr. Flynn had been fulsome with his counsel—but Mr. Turgeon did not do so. Instead, Mr. Turgeon carefully worded his questions to elicit responses from former counsel that were misleading at best, if not directly contradicted by the notes by Covington’s notetaker and partner Brian Smith. See, United States v. Rafiekian, Case No. 1:18-cr-457, ECF No. 270.

Within minutes of concluding the interview of Mr. Kelner, AUSA James Gillis called defense counsel only to notify us that he would not be calling Mr. Flynn as a witness, and that counsel would be receiving a gag order that prohibited counsel from disclosing that fact.

The actual 302 in question shows Kelner laying out evidence that Kian had lied about the role of Turkey in the project, and Flynn had either not informed or lied to Kelner about key issues relating to the filing. And just as Kelner laid out some of the most damning details, Powell complained that Kelner was being asked about the filing.

(U//FOUO) FLYNN did not inform KELNER that Fethullah GULEN was a focus of the FIG/INOVO project. FLYNN did not inform KELNER that ALPTEKIN was a conduit or go-between for FIG and Turkish officials during the project. FLYNN did not inform KELNER that ALPTEKIN talked to Turkish government officials about the FIG/INOVO project. FLYNN described the FIG/INOVO project as dealing with improving the economic relations between Turkey and the United States. FLYNN never provided inconsistences to KELNER on the work FIG provided to INOVO.

(U//FOUO) {Note: at approximately 4pm (approximately two hours into the interview of KELNER), Sidney Powell asked Turgeon why KELNER was being asked questions about FLYNN considering RAFIEKIAN was the defendant. Turgeon explained to Powell that KELNER could expect these types of questions during his cross examination by defense attorneys.}

(U//FOUO) KELNER did not recall having asked FLYNN about what/if any work product was completed by FIG for INOVO which pertained to Gulen. KELNER understood from FLYNN that FIG’s work for INOVO focused on the business environment in Turkey.

(U//FOUO) KELNER was informed by FLYNN the published 11/8/2016 Op-Ed article in The Hill was something he, FLYNN, had wanted to do out of his own interest. FLYNN wanted to show how Russia was attempting to create a wedge between Turkey and the United States. FLYNN informed KELNER the Op-Ed was not on behalf of FIG’s project with INOVO.

Worse, Judge Sullivan already ruled against Flynn, finding his waiver of conflict with Kelner both permissible and voluntary.

Rule 1.7(a)’s “absolute prohibition” on conflicting representations in the same matter is “inapplicable” where “the adverse positions to be taken relate to different matters.” D.C. Rules Prof’l Conduct R. 1.7(a) cmt. 3. Here, Mr. Flynn does not argue that his former counsel advanced adverse positions in this criminal matter. See Def.’s Reply, ECF No. 133 at 21; see also Def.’s Surreply, ECF No. 135 at 16. Instead, Mr. Flynn contends that his former counsel was an adverse witness in the case in the Eastern District of Virginia—a different jurisdiction and a different matter involving a different defendant. Furthermore, the government did not bring criminal charges based on the FARA filings against Mr. Flynn in this case or in the separate case in the Eastern District of Virginia. Thus, the Court will assume that Mr. Flynn relies on Rule 1.7(b) because he cites to Rule 1.7(c)(2), Def.’s Reply, ECF No. 133 at 21 n.14, and “FIG and [Mr.] Flynn subsequently retained Covington to represent them in connection with any potential FARA filing,” Rafiekian, 2019 WL 4647254, at *5.

[snip]

Here, it is undisputed that this Court did not have the opportunity to address the conflict-of-interest issue, determine whether an actual conflict existed at the time, or decide whether Mr. Flynn’s waiver of the potential conflict of interest was knowing and voluntary. Cf. Iacangelo v. Georgetown Univ., 710 F. Supp. 2d 83, 94 (D.D.C. 2010) (scheduling a hearing to determine whether a client gave his “informed consent” to determine whether a law firm had a waivable conflict of interest). Mr. Flynn cites no controlling precedent to support the proposition that the government was required to bring the conflict-of-interest issue to the Court’s attention. See Def.’s Reply, ECF No. 133 at 22. And Mr. Flynn does not ask this Court to find—and the Court cannot find—that his waiver was neither knowing nor voluntary.

Admittedly, Powell has to repeat “unconflicted” over and over again, otherwise this attempt is even more foolish than the record laying out Flynn’s lies demonstrate. But she’s making claims that are likely to only infuriate Sullivan.

Flynn throws balls at the wall in a furious hope one will stick

Powell then lists three things that have happened recently to justify needing a continuance to blow up a plea deal she has obviously been planning on blowing up since June:

  • The DOJ IG report that says almost nothing about Flynn
  • The government’s provision — after just two months — of a bunch of 302s showing Flynn’s cooperation, but making no complaint about it
  • Sullivan’s own opinion that, Powell complains, doesn’t address the IG Report that neither side briefed to him

Except for a later reference, in a footnote, to the fact that a Supervisory Special Agent on his investigative team provided Trump the briefing that Flynn attended as his top National Security advisor (this is the single thing in the IG Report that really impacted Flynn), Flynn’s filing doesn’t explain why any of these things requires a delay.

Flynn claims to be surprised the government changed its sentencing recommendation that they said they were going to do in September

Again, Flynn has been planning to blow up this plea deal since last summer. Powell hasn’t hidden that fact. She has no real reason to blow it up, though. So, first, she cites a SCOTUS precedent that — aside from making it clear that if she wants to complain she has to do so now — otherwise works against every claim she makes (insofar as it said the government can show how a defendants subsequent conduct may reflect failure to accept responsibility).

This about-face places the government in breach of the plea agreement and triggers application of the ramifications of the Supreme Court’s decision in Puckett, 556 U.S. 129. Puckett requires any competent defense counsel in these circumstances to move to withdraw Mr. Flynn’s guilty plea for this reason alone. Id

Puckett is a Supreme Court decision that primarily had to do with when a defendant complained about the government changing its stance in a plea (which supports the timing of Flynn doing so here), but which Powell seems to include because it included language saying that such change violated his rights. Except Puckett also didn’t include a cooperation agreement — the part of Flynn’s plea that’s in most dispute — and ultimately SCOTUS held that Puckett’s sentence would have been fair in any case (not least because the government could have shown the defendant withdrew his acceptance of responsibility, as they are also doing here).

When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy, which might in some cases be rescission of the agreement, allowing him to take back the consideration he has furnished, i.e., to withdraw his plea. But rescission is not the only possible remedy; in Santobello we allowed for a resentencing at which the Government would fully comply with the agreement—in effect, specific performance of the contract. 404 U. S., at 263. In any case, it is entirely clear that a breach does not cause the guilty plea, when entered, to have been unknowing or involuntary. It is precisely because the plea was knowing and voluntary (and hence valid) that the Government is obligated to uphold its side of the bargain.

In short, the only precedent Flynn relies on to justify blowing up this plea deal actually supports the government, not him.

The government is still mean

Which brings us to the most remarkable paragraph in this filing.

Mr. Flynn has instructed counsel to file this Motion to withdraw his plea now. The defense must file a Supplemental Motion to Withdraw for alternative additional reasons as soon as possible. Mr. Flynn will not plead guilty. Furthermore, he will not accede to the government’s demand that he “disavow” any statements made in his filings since he obtained new, unconflicted counsel. Michael T. Flynn is innocent. Mr. Flynn has cooperated with the government in good faith for two years. He gave the prosecution his full cooperation. “He held nothing back.” He endured massive, unnecessary, and frankly counterproductive demands on his time, his family, his scarce resources, and his life. The same cannot be said for the prosecution which has operated in bad faith from the inception of the “investigation” and continues relentlessly through this specious prosecution.

First, Powell says she “must” file a supplemental motion to withdraw the plea “as soon as possible.” Having not provided any real reason to do so here — aside from the government being mean — Sullivan is in no way obliged to let her file that follow-up motion. Powell says “Flynn will not plead guilty.” But he has already done so, twice, under oath! She says he will not disavow any statements, except that either he has to disavow his sworn grand jury testimony, or his subsequent statements, because they are fundamentally inconsistent (but they are consistent with his sworn guilty pleas). Perhaps most amazingly, in a filing where Powell never once claims that the primary crime to which Flynn pled, lying about Russia, was not a lie. He’s just innocent because committing a crime, for him, cannot be a crime, I guess. She ignores that Flynn reneged on his testimony so as to be able to claim he cooperated in good faith. She includes a quote — “He held nothing back,” — without citing it (it’s a comment Brandon Van Grack made in December 2018, before Flynn blew up the plea deal). She bitches about how much time it takes to cooperate (cooperation that he has blown up, requiring him to spend far more time blowing up his plea deal).

And then she says the government is mean again.

Flynn tricked the government into agreeing to a one month continuance

Curiously, it appears Flynn tricked the government into agreeing to a one month continuance, one Powell will presumably use to invent a real reason to withdraw his plea or hope that John Durham will find a Sparkle Pony.

Immediately after the government submitted its sentencing memo, Flynn’s lawyers started asking the government to agree to this continuance. They agreed to do so, but for the purpose of giving Flynn’s lawyers time to do a new sentencing memo.

We write to provide a response to your request for our position regarding your suggested amended sentencing dates in this case. In short, we do not oppose a continuance of the due date for your supplemental sentencing memorandum and the date of sentencing. In light of your request, we also ask that the Court schedule a due date for a government reply memorandum one week after the date upon which your supplemental sentencing memorandum is due.

But this was for sentencing, not for giving Powell time to come up with some reason why Flynn should not be charged with perjury for his sworn statements — before two judges and in the grand jury — that are inconsistent with his request to withdraw this plea.

Only after the defense got the agreement to continue sentencing did they inform the government that they were going to, instead, use the time blowing up the plea deal.

Defense counsel contacted the government shortly before filing this Motion to Withdraw the Plea. The government had not replied at the time of filing.

Thus far, neither the government nor Sullivan have responded to this filing. But both would be well within their rights to tell Flynn to fuck off, and prepare for sentencing in a week, as originally scheduled.

Prosecutors Invite Emmet Sullivan to Throw the Book at Mike Flynn

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Technically, the scathing sentencing memo for Mike Flynn the government just submitted calls for the same sentence they called for in December 2018, when he was first set to be sentenced, something they note explicitly: a guidelines sentence of 0-6 months in prison.

[T]he government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration.

[snip]

The government notes its decision to withdraw its motion for substantial assistance has no impact on the applicable Guidelines range, which will remain 0 to 6 months of incarceration.

But in their sentencing disparity section, they argue Flynn’s actions are worse than those of George Papadopoulos and Alex van der Zwaan (because of his position of trust and security clearance) and Rick Gates and James Wolfe (because they accepted responsibility), all of whom served prison time.

Along the way, they give Judge Emmet Sullivan all the ammunition he needs and write the memo in such a way as to invite him to, at least, sentence Flynn at the top of a guidelines sentence, 6 months of prison.

Before Flynn fired the very competent Rob Kelner and hired Fox News firebreather Sidney Powell and then blew up his cooperation deal, the government had argued he should be sentenced at the low end of that range, meaning probation. They justify implying he should get a real prison sentence now because of the way he undermined the prosecution of his former partner, Bijan Kian, and reneged on his acceptance of responsibility.

Given the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in – and his affirmative efforts to undermine – the prosecution of Bijan Rafiekian, and the need to promote respect for the law and adequately deter such criminal conduct, the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration.

The government lays out two ways Flynn undermined the Bijan Kian prosecution

Flynn’s reversal on the Kian case is important because — according to the cooperation addendum submitted in 2018 — that’s the one investigation in which he provided “substantial cooperation.

Notably, only the assistance he had provided in the Rafiekian case was deemed “substantial.”

Over the last six months, Flynn has negated all that cooperation.

In light of the complete record, including actions subsequent to December 18, 2018, that negate the benefits of much of the defendant’s earlier cooperation, the government no longer deems the defendant’s assistance “substantial.”

The government substantiates that Flynn changed his testimony by including Kian trial exhibits, Flynn’s grand jury testimony, a Flynn 302, two Rob Kelner 302s (two), and the 302 from another of the lawyers who helped submit his FARA filing. After having substantiated that Flynn reneged on his cooperation, the government then lays out another way Flynn undermined Kian’s prosecution — by contesting that he was Kian’s co-conspirator.

Remarkably, the defendant, through his counsel, then affirmatively intervened in the Rafiekian case and filed a memorandum opposing the government’s theory of admissibility on the grounds that the defendant was not charged or alleged as a coconspirator. See Flynn Memorandum Opposing Designation, United States v. Bijan Rafiekian, No. 18-cr-457 (E.D. Va July 8, 2019) (Doc. 270). This action was wholly inconsistent with the defendant assisting (let alone substantially assisting) or cooperating with the government in that case.12 Accordingly, while the defendant initially helped the prosecutors in EDVA bring the Rafiekian case, he ultimately hindered their prosecution of it.

The government then rebuts first one counterargument Flynn might make — that he should get credit for cooperating anyway since he waived privilege so his Covington lawyers could testify.

12 Any claim by the defendant that the Rafiekian prosecution was aided by his agreement to waive the attorney-client privilege and the attorney work-product doctrine regarding his attorneys’ preparation and filing of the FARA documents would be unfounded. The defendant explicitly did not waive any privileges or protections with respect to the preparation and filing of the FARA documents. No waiver occurred because the government (and the defendant’s attorneys) did not believe a waiver for such information was necessary—information provided to a lawyer for the purposes of a public filing is not privileged. The district judge in Rafiekian agreed with that conclusion, and permitted the defendant’s attorneys to testify about what the defendant and Rafiekian told them because those statements were not privileged or protected as opinion work product. See United States v. Rafiekian, No. 18-cr-457, 2019 WL 3021769, at *2, 17-19 (E.D. Va. July 9, 2019).

And they obliquely rebut an argument that Powell has already made — that EDVA prosecutors chose not to call Flynn only to retaliate against him.

13 The government does not believe it is prudent or necessary to relitigate before this Court every factual dispute between the defendant and the Rafiekian prosecutors. The above explanation of the decision not to call the defendant as a witness in the Rafiekian trial is provided as background for the Court to understand the basis for the government’s decision to exercise its discretion to determine that the defendant has not provided substantial assistance to the government. The government is not asking this Court to make factual determinations concerning the defendant’s interactions with the Rafiekian prosecutors, other than the undisputed fact that the defendant affirmatively litigated against the admission of evidence by the government in that case.

Finally, they quote a Kian filing saying for them what they therefore don’t have to say in such an inflammatory way: Flynn tried to game the Kian prosecution in such a way that he got to benefit from the plea deal without admitting his guilt.

Rafiekian’s counsel characterized the “new Flynn version of events” as “an unbelievable explanation, intended to make Flynn look less culpable than his signed December 1, 2017 Statement of Offense and consistent with his position at his sentencing hearing. In short, Flynn wants to benefit off his plea agreement without actually being guilty of anything.” See Defendant’s Memorandum Regarding Correction at 5, United States v. Bijan Rafiekian, No. 18- cr-457 (E.D. Va. July 5, 2019) (Doc. 262).

The government asks Judge Sullivan to allocute Flynn again

Which may be why the government twice asks Judge Sullivan to force Flynn to admit his guilt again if he wants credit for it in sentencing.

Indeed, the government has reason to believe, through representations by the defendant’s counsel, that the defendant has retreated from his acceptance of responsibility in this case regarding his lies to the FBI. For that reason, the government asks this Court to inquire of the defendant as to whether he maintains those apparent statements of innocence or whether he disavows them and fully accepts responsibility for his criminal conduct.

[snip]

Based on statements made in recent defense filings, the defendant has not accepted responsibility for his criminal conduct, and therefore is not entitled to any such credit unless he clearly and credibly disavows those statements in a colloquy with the Court.

The government lays out evidence of Flynn’s perjury before Emmet Sullivan

But there may be another reason the government invites Sullivan to allocute Flynn again. In an extended passage, the government basically lays out evidence that — given his statements made in the last six months — Flynn perjured himself before Judge Sullivan on December 18, 2018, when the judge had the prescience to put Flynn under oath.

During the hearing, the Court engaged in a dialogue with the defendant concerning arguments in his sentencing memorandum that appeared to challenge the circumstances of the January 24 interview. See 12/18/2018 Hearing Tr. at 6-7. However, when questioned by the Court, the defendant declined to challenge the circumstances of that interview. Id. at 8. When pressed by the Court about whether he wanted to proceed with his guilty plea “[b]ecause you are guilty of this offense,” the defendant unequivocally responded, “Yes, Your Honor.” Id. at 16. And when the Court asked whether he was “continuing to accept responsibility for [his] false statements,” the defendant replied, “I am, Your Honor.” Id. at 10. The defendant’s recent conduct and statements dramatically differ from those representations to the Court, which he made under oath.

Six months later, in June 2019, the defendant began retracting those admissions and denying responsibility for his criminal conduct. Far from accepting the consequences of his unlawful actions, he has sought to blame almost every other person and entity involved in his case, including his former counsel. Most blatantly, the defendant now professes his innocence. See, e.g., Reply in Support of His Motion to Compel Production of Brady Material and to Hold the Prosecutors in Contempt at 2, 6, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 22, 2019) (Doc. 129-2) (“Reply”) (“When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime . . . ;” alleging that text messages provided by the government “go to the core of Mr. Flynn’s . . . innocence”). With respect to his false statements to the FBI, he now asserts that he “was honest with the agents [on January 24, 2017] to the best of his recollection at the time.” Reply at 23. Such a claim is far from accepting responsibility for his actions. As the defendant admitted in his plea agreement and before this Court, during the January 24 interview the defendant knew he was lying to the FBI, just as he knew he was lying to the Vice President of the United States.

The defendant has also chosen to reverse course and challenge the elements and circumstances of his false statements to the FBI. See, e.g., June 6, 2019 Sidney Powell Letter to the Attorney General (Doc. 122-2) (“Powell Letter to AG”). The defendant now claims that his false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambush interview” to trap him into making false statements, see Reply at 1. The Circuit Court recently stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019 WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further undermined by the defendant’s efforts over the last four months to have the Court dismiss the case. See Reply at 32.7

This effectively lays out a catch-22 for Flynn: either he makes a bid, still, for the acceptance of responsibility he has reneged on, or Sidney Powell instead argues that he perjured himself. One way or another (or in both cases) Flynn lied. Repeatedly.

Notably, the government introduces its discussion of why Flynn’s past lies — which were false statements, not formally perjury — were so important using a SCOTUS discussion of perjury, something they didn’t do in his prior sentencing memo.

That is precisely why providing false statements to the government is a crime. As the Supreme Court has noted:

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

Sidney Powell may be too rash to notice this (as she has missed or not given a shit about other similar warnings in the past). But the government is laying out a case to go after Flynn for perjury if he decides to get cute again.

The government recalls Judge Sullivan’s past disgust with Flynn

Having laid out two reasons why the outcome should be significantly different this time around than the outcome the government argued for in December 2018, they then remind Judge Sullivan how pissed off he was at that hearing (where he asked whether treason had been considered for Flynn), where it seemed clear he was already ready to send Flynn to prison.

The government reminds Judge Sullivan that he himself decided to let Flynn’s “cooperation” play out to see the true nature of it.

At the initial sentencing hearing in December 2018, the Court raised concerns about proceeding to sentencing without “fully understanding the true extent and nature” of the defendant’s assistance.

[snip]

Although the government noted that “some of th[e] benefit” of the defendant’s assistance “may not be fully realized at th[at] time,” it proceeded to sentencing because it believed the defendant’s anticipated testimony in the Rafiekian case had been secured through his grand jury testimony and the Statement of Offense.8 The Court, however, expressed that “courts are reluctant to proceed to sentencing unless and until cooperation has been completed . . . [b]ecause the Court wants to be in a position to fully evaluate someone’s efforts to assist the government.” 12/18/2018 Hearing Tr. at 26. The Court’s concern that the parties had prematurely proceeded to sentencing was prescient.

It then reminds Judge Sullivan that he asked — and the government affirmed — that Flynn could have been charged in a conspiracy to act as an Agent of Turkey, one of the things that Sullivan found so disgusting in the last sentencing hearing.

The Court inquired whether the defendant could have been charged as a co-defendant in the Rafiekian case, and the government affirmed that the defendant could have been charged with various offenses in connection with his false statements in his FARA filings, consistent with his Statement of Offense.

The government next reminds Sullivan that Flynn’s actions were an abuse of public trust, another of the things that really pissed him off in the last sentencing hearing.

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

The government returns to those themes to argue — factually but aggressively — that Flynn compromised national security.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it. [my emphasis]

Having laid out the reasons why Sullivan was ready to send Flynn to prison before he started all the Sidney Powell shenanigans, the government then repeats his past judgment that this is a unique case, and Flynn’s case is worse than all the directly relevant precedents, Papadopoulos, van der Zwaan, and, since the last sentencing hearing, Wolfe and Gates, who were sentenced to a range between two weeks and two months.

It goes without saying that this case is unique. See 12/18/2018 Hearing Tr. at 43 (Court noting that “[t]his case is in a category by itself”). Few courts have sentenced a high-ranking government official and former military general for making false statements. And the government is not aware of any case where such a high-ranking official failed to accept responsibility for his conduct, continued to lie to the government, and took steps to impair a criminal prosecution. Accordingly, while Section 3553(a)(6) requires the court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” there are no similarly situated defendants.

Although other persons investigated by the SCO pleaded guilty to lying to the FBI and were sentenced to varying terms of incarceration, those individuals and their conduct are easily distinguishable. See id. at 42-43 (“The Court’s of the opinion that those two cases aren’t really analogous to this case. I mean, neither one of those individuals was a high-ranking government official who committed a crime while on the premises of and in the West Wing of the White House.”). Alex van der Zwaan lied to the SCO, pled guilty to violating 18 U.S.C. § 1001, and was sentenced to 30 days incarceration and a fine of $20,000. See United States v. van der Zwaan, No. 18-cr-31 (ABJ). George Papadopoulos likewise lied to the SCO, pled guilty to violating 18 U.S.C. § 1001, and was sentenced to serve 14 days incarceration, to perform 200 hours of community service, and pay a fine of $9,500. See United States v. Papadopoulos, No. 17-cr-182 (RDM). Neither defendant was a high-ranking government official, held a position of trust vis-à-vis the United States, held a security clearance, had a special understanding of the impact of providing misleading information to investigators, or denied responsibility for his unlawful conduct.

[snip]

The Court granted the government’s motion for a significant downward departure pursuant to Section 5K1.1 for providing substantial assistance, gave Gates credit for accepting responsibility, and still sentenced him to 45 days of confinement.

Effectively, then, the government uses Sullivan’s own past judgments, giving him all the reasons he would need to sentence Flynn, at least, near the top of guidelines range six months.

Subtly, the government twice invokes “aggravating factors” (once citing the Wolfe case, which I predicted would happen).

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct.

[snip]

The court concluded that Wolfe’s position—which was far less significant than the defendant’s position as National Security Advisor—was an aggravating factor to consider at sentencing, and one that distinguished his case from those of Papadopoulos and van der Zwaan. Moreover, in that case, the defendant received credit for accepting responsibility.

The government doesn’t ask Sullivan to go beyond a guidelines sentence of six months (though even six months would be almost unheard of), though the comparison to Wolfe makes it clear they think Flynn should serve more than two months in prison. But they give him all the ammunition he’d need if he wanted to go there on his own.

Ultimately, as the government notes, the guidelines range is the same. But the facts of the case are now very different.

Sidney Powell Complains That Peter Strzok Is Too OCD to Investigate Her Client

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Amid the new fecal matter that Mike Flynn lawyer Sidney Powell throws at Judge Emmet Sullivan in her sur-surreply purportedly asking for Brady material is a claim (ostensibly offered to support a claim that she’s entitled to his original notes even though she admits she has no proof to otherwise support her claim) that Peter Strzok was just too damned OCD to investigate her client.

Moreover, even a layman can look at the two sets of notes and discern that Strzok’s miniscule, printed, within-the-lines, longer, and more detailed notes bear none of the hallmarks of being written during the press of an interview—much less by the secondary note-taker. That observation is even more obvious when compared with Agent 2’s notes, which do appear to be contemporaneous.

That’s not the most ridiculous thing in this latest brief, but given all the other complaints launched against Strzok in the last two years, that he operates too much “within-the-lines” is a dizzying plot twist.

Sidney Powell rewrites all of criminal procedure

The most ridiculous thing Powell does is — before she gets off the first page! — argue that the government has an obligation to comply with Brady before accepting a guilty plea or, barring that, must provide all Brady the day after he pleads.

The government’s Surreply is new only in its stunning admissions and untenable paradoxes. According to the government, it had no obligation to produce its superfluity of Brady evidence before Mr. Flynn pleaded guilty— because he was not a defendant until he was formally charged. And, it had no obligation to produce its cache after he pleaded guilty (the same or next day)—well . . . because his guilty plea erased its obligation.

If accepted, the government’s approach would allow endless manipulation by prosecutors: target individuals, run search warrants, seize devices, interrogate for days, threaten family members, cajole, but never charge until the clock strikes midnight once a plea is extracted. Yet playing cat-and-mouse with the Due Process Clause is the opposite of what the Brady-Bagley-Giglio line of cases is all about. Perhaps even more significantly, the government’s position wholly ignores this Court’s Standing Order, which not only has no such timing requirements, but is issued for the precise purpose of eliminating the games the government played here.

Even the most favorable reading of Emmet Sullivan’s standing order (the original one of which wasn’t filed until 5 days after the case got transferred to Sullivan on December 7, and the operative one of which wasn’t filed until 71 days after the case transfer, with five more days after that before the protective order first permitting the sharing of such information was filed) wouldn’t hold that the government has to turn over all Brady material within two days of pleading guilty before a judge who doesn’t have such a standing order.

It sure as hell doesn’t say the government has to disclose warrants to people under investigation or even that the government can only seize phones if they charge someone. I mean, that might be a nice world (or it might be a criminal hellhole), but that’s not the world she practices law in.

Mike Flynn is entitled to a Mulligan because he replaced his competent lawyer with a TV lawyer

Of course, there are problems.

One of which is that Flynn got everything anything normally considered Brady before he pled guilty for a second time before Sullivan. Powell deals with that in two ways. First, she suggests that everything that Flynn did under his previous counsel is reset when she came in as new counsel.

Nor was there “an extraordinary reversal” pursuant to which Mr. Flynn claims he is innocent. At no time did new, conflict-free counsel affirm the validity of Mr. Flynn’s guilty plea. In that same letter, counsel explained that “as was ingrained in [Mr. Flynn] from childhood,” he “took responsibility for what the SCO said he did wrong.”

On top of all the other things she’s demanding for her client, she’s also asking for a Mulligan.

Powell accuses Emmet Sullivan of just joking when asking Flynn about conflicts

Central to her ability to do so, of course, is the claim that Rob Kelner — whom the government described twice reviewed the issue with Flynn and waived any conflict — could not have waived that conflict. What’s awkward about all this is that (as the government noted in their filing), even without notice Sullivan raised it at Flynn’s last guilty plea.

Yet, he fails to respond to the point made in Mr. Flynn’s Reply that this conflict existed only because the government insisted not only on incessantly attacking Flynn’s FARA registration (beginning within weeks of its filing), but also on demanding its pairing with the completely unrelated White House interview prosecution. Simultaneously, the government did not even advert to the primary argument that the conflict was non-consentable, which meant that even if former counsel had fully disclosed and explained the risks associated with the conflict, Flynn could not agree to waive it. The Covington & Burling lawyers could not remain in the case. Most important of all, the government did not move to disqualify the lawyers or bring the matter to the attention of any court.

She returns to this later, suggesting that Sullivan could not know that Kelner might have a conflict when he invited Flynn to consult with other attorneys.

Mr. Van Grack unilaterally eliminated the possibility that the Court would learn enough to investigate further. He was content to allow hopelessly-conflicted counsel not merely to walk Mr. Flynn into five days of interviews with the Special Counsel team, but into an immediate, high-pressured plea of guilty without any demands for or production of Brady material, facilitated the waiver of countless rights, and signed an agreement for endless years of cooperation with the government at extraordinary personal expense. In addition to those benefits, the government was able to turn Mr. Flynn’s own counsel into the equivalent of adverse witnesses against him in the Rafiekian FARA case in the Eastern District of Virginia.

Note, Powell encouraged Kelner to expand his cooperation during the Kian trial in a bid to help sabotage it.

And then Powell claims that Flynn — who raised precisely the other claims she raises here (about impropriety leading up to his interview) — could not have known there was a problem.

The normal plea colloquy was insufficient to alert this Court to the problem, and Mr. Flynn did not know what Mr. Flynn did not know. When Mr. Flynn was asked if he was satisfied with the representation he was receiving, he had no way of knowing of the depths of the conflict of interest, and he had no way of knowing that some conflicts of interest are non-consentable. The prosecutors were more than just aware of this issue, they took full advantage of it. Their failure to address the issue in their Surreply concedes the non-consentable conflict. This is precisely why the government is required to focus the court’s attention to the issue by moving to disqualify counsel and thus letting the Court—not the government in cahoots with uber-conflicted counsel— persuade a defendant that he is getting advice from a safe source.

Effectively this is an insinuation that Sullivan, who bent over backwards to give Flynn the opportunity to ask for counsel from another lawyer, was too stupid to understand the potential need for Flynn to do so. Who knows? It could work. But pretending the Judge didn’t do precisely what you think should happen is not a good way to impress the Judge.

Powell renews the claim that her client was tricked into telling the lies he had already told

Only after asking for a Mulligan does Powell get around to reiterating her argument that mean FBI Agents ambushed her 30-year Intelligence veteran client into telling the same lies he had already told others at the White House. In doing so, she simply ignores what the government has already told her, including that they did not use the Steele dossier (which barely mentions Flynn) as a “pretext” to ask him why he was undermining the policy of the government.

The government has known since prior to January 24, 2017, that it intended to target Mr. Flynn for federal prosecution. That is why the entire “investigation” of him was created at least as early as summer 2016 and pursued despite the absence of a legitimate basis. That is why Peter Strzok texted Lisa Page on January 10, 2017: “Sitting with Bill watching CNN. A TON more out. . . We’re discussing whether, now that this is out, we can use it as a pretext to go interview some people.” 3 The word “pretext” is key. Thinking he was communicating secretly only with his paramour before their illicit relationship and extreme bias were revealed to the world, Strzok let the cat out of the bag as to what the FBI was up to.

She then, bizarrely, provides proof that the FBI recognized right away that Flynn didn’t seem to be lying but his statements contradicted with everything that was on the transcript.

Former Deputy Director Andrew McCabe as much as admitted the FBI’s intent to set up Mr. Flynn on a criminal false statement charge from the get-go. On Dec. 19, 2017, McCabe told the House Intelligence Committee in sworn testimony: “[T]he conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview . . . the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” McCabe proceeded to admit to the Committee that “the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”

She then claims that when Brandon Van Grack said that nothing is in the government’s possession he instead said something else, then goes on to … I’m not sure what … without addressing the Van Grack point that the original agent notes match each other and every draft of the 302, meaning nothing in between would be different.

Tellingly, Mr. Van Grack does not deny that such information is, in fact, available.

The Strzok-Page text messages confirm that Lisa Page had two opportunities to edit drafts of the crucial 302. Strzok returned to his FBI office the night of February 10, 2017, to input the edits she made on the draft she had earlier left in Bill [Priestap’s] office (about which they hatch a cover-story), then sent her another version over the weekend. The government thus implicitly admits there was at least one version prior to the February 10 edition

(Note, with the last filing, the government provided three drafts of the 302, one of which was entered on January 24, meaning she already has this; she could mention that but it thoroughly undermines her own point.)

Finally, after making the claim that Strzok is too meticulous to investigate her client, she returns to a claim that I showed to be false, that the notes don’t support two of the false statements charges.

Read the notes of both agents for hours, and you won’t find a question or an answer about Kislyak’s response on either the UN vote or the sanctions—yet those assertions underpin the factual basis for the plea.

In about 30 minutes, however, one can find stuff in the notes that is consistent between the two and consistent with Flynn denying both cases.

Powell makes this harder to see, mind you, by doing a cut-and-paste job that splits notes on Flynn’s discussion of the UN calls. But it is there and in all the drafts.

Then she claims the redline, by adding a second denial from Flynn that he didn’t request Russia to act a certain way, somehow changes that it already included such a denial.

Previously, someone added an entire assertion untethered from either set of notes: “The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration.” Although absent from the notes of both agents, this “Russian response” underpins the alleged crime.10

The government shows what I do: that the claims are in every 302. Including this one.

As note, the evidence Powell presents actually supports the government. But at least she refrained from accusing her client of lying this time.

Powell says prosecutors should never pursue plea deals

Then Powell argues that stuff that (again) happen with many criminal defendants shouldn’t happen with her own, such as that they enter into proffers.

The letter sent by the Special Counsel to Mr. Flynn’s then-counsel, Covington & Burling, before the proffer interviews made clear that, “by receiving [Mr. Flynn’s] proffer, the government does not agree to make any motion on [his] behalf or to enter into a cooperation agreement, plea agreement, immunity agreement or non- prosecution agreement with Client.” Although the letter made a general promise not to use statements made in the interviews against Mr. Flynn, the promise included an important final clause: “Should Client be prosecuted, no statements made by Client during the meeting will be used against Client in the government’s case-in-chief at trial or for purposes of sentencing, except as provided below.” (emphasis added). The listed exceptions render the “promise” a practical nullity.

It is disingenuous to suggest that the proffer sessions were not adversarial when the government had permission to target Mr. Flynn, seized all his electronic devices, targeted his son, and seized his son’s devices. The government fails to mention that, to obtain the plea, it threatened Mr. Flynn with indictment the next day, the indictment of his son who had a new baby, promised him “the Manafort treatment,” and promised to pile on charges sufficient to put him in prison the rest of his life. The short fuse was no doubt motivated by the government’s knowledge, which it did not disclose to Flynn, that the salacious Strzok-Page emails, disclosing their vitriolic hatred of President Trump and his team, the key agents’ affair, and their termination from Mueller’s Special Counsel operation were going to be exposed the very next day. No individual, no matter how innocent, can withstand such pressure, particularly when represented by conflicted defense counsel. The advice a client is given by his lawyer in such fraught circumstances can make all the difference between standing his ground or caving to the immense pressure. Mr. Flynn caved, not because he is guilty, but because of the government’s failure to put its cards on the table, as Brady, requires, and its failure to ensure that Mr. Flynn was represented by un-conflicted counsel when he was forced to make that decision.

I mean, you sort of have to pick. Is your client a sophisticated intelligence officer with 30 years experience, or is he — represented by a very good lawyer — weaker than other similarly situated people? What Powell lays out, however, is not proof that he was treated differently, but actually proof he was treated the same, however shitty our prosecutorial practices are.

Powell admits she pulled a bait-and-switch but promises to return to it

Finally, there’s the matter of Powell’s bait-and-switch, her late demand to have the plea thrown out in the middle of a specious Brady request. As I noted, prosecutors were a little coy, suggesting that until she presents the demand as a lawyer would, with actual case law, they can only assume she’s arguing a Brady problem.

The most interesting (and potentially risky): even though Sullivan ordered them to address “the new relief, claims, arguments, and information” raised in Powell’s “reply,” they still treat this as primarily a question of Brady obligations. In addressing Powell’s demand to have the prosecution thrown out, they play dumb, noting that Powell has not presented her demand as a lawyer would, with citations and case law, and so then make an assumption that this is primarily about Brady.

In his Reply, the defendant also seeks a new category of relief, that “this Court . . . dismiss the entire prosecution for outrageous government misconduct.” Reply at 32; see also id. at 3 (“dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence . . . in a timely fashion or at all”). The defendant does not state under what federal or local rule he is seeking such relief, or cite to relevant case law.9 In order to provide a response, the government presumes, given the context in which this request for relief arose, that the defendant is seeking dismissal as a remedy or sanction for a purported failure to comply with Brady and/or this Court’s Standing Order.

9 Local Criminal Rule 47(a) specifically requires that “[e]ach motion shall include or be accompanied by a statement of the specific points of law and authority that support the motion, including where appropriate a concise statement of the facts” (emphasis added). The defendant now seeks relief from this Court for claims that he has not properly raised; the government is hampered in its ability to accurately respond to the defendant’s argument because he has failed to state the specific points of law and authority that support his motion.

I’m sure Powell’s response will be “Ted Stevens Ted Stevens Ted Stevens.” But even if it is, that’s something she could have cited in her new demand for relief and did not.

They do go on to address the claim that the FBI engaged in outrageous behavior, focusing relentlessly on the January 24 interview, rather than Powell’s more far-flung conspiracy theories. But ultimately, this seems to be an attempt to do what they tried to do when they first alerted Emmet Sullivan that Powell had raised new issues, to either force her to submit her demand to have the whole prosecution thrown out as a separate motion, or to substantiate her Brady claims.

When complaining that the government didn’t reply to her demand, she doesn’t address the fact that she hasn’t cited any law to support her.

As predicted, she instead cites Ted Stevens.

The government sought and received permission to file a Surreply by complaining that the defendant had bootlegged “new” arguments into his Reply. Yet its Surreply either elides the supposedly new material altogether or does not address it in terms.

[snip]

Rather, as a matter of procedure, counsel advised the Court that we anticipated seeking dismissal rather than withdrawal. Nothing we have found in the law requires a defendant to withdraw his guilty plea rather than seek dismissal for egregious government misconduct. Analogously, this Court did not have to grant a new trial to Ted Stevens before it could dismiss the entire prosecution in the interest of justice.

But it looks like the government gamble paid off. After bitching at the government for ignoring her bait-and-switch, at the very end of the brief, she says that she will formally ask for something she spent a good chunk of her last filing arguing for now and pretends that this is all just a Brady request.

In conclusion, yes, the government engaged in conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct. See United States v. Russell, 411 U.S. 423, 428 (1973). However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an order compelling the government to produce the additional Brady evidence he has requested—in full and unredacted form—and an order to show cause why the government should not be held in contempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice. Mr. Flynn is entitled to discovery of the materials he has requested in these motions and briefs that will help him support such a motion.

At some point, this bait-and-switch is bound to piss off Judge Sullivan, who now has to read two more briefs because of Powell’s little ploy. And I’m not sure invoking the ghost of Ted Stevens will be enough to mitigate any risk of pissing him off about this.

13 Routine Aspects of FBI Investigations Sidney Powell Says Should Not Be Used with Mike Flynn

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Last night Sidney Powell submitted what procedurally is called her “reply” brief in a bid to compel Brady production. Even if her object were to obtain Brady, this is best thought as her opening bid, as it for the first time she presents this argument. But on page 2, she admits she’s not actually seeking Brady (which makes me wonder whether this entire brief is sanctionable), but instead is seeking to have her client’s multiple guilty pleas dismissed.

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution.

To make her case that her client — who, she herself emphasizes, served for 30 years as an intelligence officer and so was no spring chicken about the ways of the world — nevertheless got duped by evil FBI officers attempting to entrap him by his own actions, Powell attacks the following utterly routine parts of FBI investigations:

  1. People who know things relevant to an investigation are interviewed by FBI Agents, working in twos, who then write up a 302
  2. The FBI doesn’t tape non-custodial interviews, though probably should record more than they do, as 302s can be dodgy
  3. FBI Agents often don’t take notes while they’re interviewing someone, because that distracts from the interview
  4. The FBI would prefer to talk to witnesses — all witnesses! — without lawyers present
  5. FBI will prepare for interviews to ensure they are as useful as possible
  6. FBI often watches how suspects respond to learning about potential criminal evidence against them
  7. Prosecutors try to get suspects to plead guilty by showing them some, but not the most sensitive, damning information they have about them
  8. The FBI usually doesn’t tell people it is investigating that it is investigating them
  9. The FBI is allowed to open investigations when they obtain evidence that might indicate a crime — they don’t have to wait until they have evidence that proves beyond reasonable doubt someone is guilty before they try to collect evidence to try to figure out whether a crime has been committed and if so by whom
  10. People considering pleading guilty meet with prosecutors before doing so to lay out what evidence they’ll be willing to share for a lenient plea deal
  11. Even for cases that may one day end up in Emmet Sullivan’s court, suspects don’t get to review all the evidence the government has against them before they’re charged and even in Sullivan’s court, defendants only get to review the evidence that would be helpful to their defense (or sentencing) pertaining to the crimes in question, not other bad deeds
  12. When the FBI thinks a hostile foreign country is trying to interfere with the United States, it investigates
  13. People who work at DOJ work with other people who work at DOJ

Effectively, Powell’s argument is that none of these very routine things that happen with every single FBI investigation should have happened with an investigation of her client. She has a point that some of them — especially the way FBI writes up 302s — should be fixed. But that doesn’t mean her client is anymore innocent than any of the thousands of other defendants treated similarly.

There’s a ton more that I’ll do in a follow-up post, virtually all of which is misleading but which, because she waited to submit this until her reply brief, the government will need to ask for permission to lay out as false.

She makes just two interesting arguments of merit. First, she argues that Rob Kelner was conflicted when he advised Flynn to plead guilty in 2017.

The government fails to acknowledge, however, that Covington & Burling was the very firm that Mr. Flynn paid more than $1 million to investigate, prepare, and then defend the FARA registration in response to NSD/FARA section’s and David Laufman’s demands. See n.9 supra. By August 2017, when the government threatened Mr. Flynn with criminal charges related to the same FARA registration, former counsel were immediately caught in the vice of an intractable conflict of interest that they never escaped until Flynn engaged new counsel. By no later than August 2017, the conflict between Mr. Flynn and his former lawyers was non-consentable and not subject to waiver. Even if Mr. Flynn had been fully informed in writing of the conflict at that time, the lawyers were obligated to withdraw from the representation without regard to his wishes.

Some conflicts of interest are so likely to interfere with the effectiveness of counsel, and so destructive of the fairness of the proceeding, that courts must prophylactically override a defendant’s proffered waiver of the right to conflict-free counsel.

This is a point I raised the day after Flynn’s original sentencing hearing, which is proof that Emmet Sullivan had an opportunity to raise the conflict issue when he accepted Flynn’s second guilty plea. He did not, even while making damn sure that Kelner’s advice had been adequate.

Since that time, the government has alleged that Flynn lied to Kelner, which would eliminate any possible conflict, because Kelner advised Flynn based off what he told him.

Moreover, the issue of whether Flynn’s counsel was conflicted is utterly irrelevant to any questions about Brady, and so irrelevant to the stated purpose of this motion.

She also argues that precedent holds that Giglio is included in Brady.

The government dismisses its duty to produce impeachment evidence in a single sentence, claiming the Supreme Court has held its Brady obligation “does not extend to impeachment evidence.” United States v. Ruiz, 536 U.S. 622 (2002); Gov. Reply Brief, 7, Oct. 1, 2019. But Ruiz did not overrule Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within the general rule [of Brady.]”), and Bagley, 473 U.S. at 676-77 (stating emphatically “[t]his Court has rejected any such distinction between impeachment evidence and exculpatory evidence”). Both hold that impeachment evidence is encompassed within Brady, and no court has held that Ruiz radically altered the Brady/Giglio landscape. Rather, Ruiz focused on the voluntariness of the plea, and there was not even an allegation that any information was withheld.

This Circuit applies the Giglio and Bagley standard that “‘impeachment evidence . . . as well as exculpatory evidence falls within the Brady rule.’” In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999) (quoting Bagley, 473 U.S. at 676). This is because “evidence that impeaches the [government’s witnesses] is almost invariably ‘favorable’ to the accused, because by making the government’s case less credible it enhances the defendant’s” case. 185 F.3d at 893. When impeachment evidence is exculpatory, as noted in Giglio and Bagley, it is Brady like any other. McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003). The government cannot be the “architect of a proceeding that does not comport with standards of justice.” Brady, 373 U.S. at 88.

Even if she’s reading these precedents correctly, they’re irrelevant to the issue at hand: how Sullivan interprets his own Brady order to incorporate Giglio or not, since Flynn had waived rights to discovery by the time he pled guilty. And since that’s not entirely clear, there is little chance she’ll get Sullivan to sanction the prosecutors, which is one thing Powell wants. Plus, much of what Powell presents — including that Strzok believed Flynn showed no indices of lying — actually undermines her arguments that this stuff impeaches Peter Strzok or others. Still, I expect a rigorous discussion on how these precedents apply when Sullivan reviews this stuff on November 7.

There are two other details about this filing of acute interest. First, Powell notes that DOJ is still refusing to disclose a January 30 memo saying that they did not believe Flynn was an Agent of Russia. Mueller said Flynn’s ties were still being very actively investigated this summer. The line in the Mueller Report that addresses his ties to Russia is redacted. There may be a reason why DOJ is withholding that, one that Powell should give some consideration to.

Also, in a recent filing, the government revealed that there were interviews with Flynn that took place after January 24, at which (they claim) he continued to lie.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

If he did, in fact, lie in these, any one of them could be turned into a False Statements charge quite easily. And they would demonstrate that all her complaints about the January 24 302 are misplaced.

Curiously, Powell doesn’t mention the existence of these 302s in her rant.

Ultimately, though, her main argument is that Mike Flynn should not have been investigated the way the FBI investigates people. I’m not sure that’s going to get her what she wants.

On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

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Since the NYT revealed that SDNY is investigating Rudy Giuliani for what they call “lobbying” laws,

Mr. Lutsenko initially asked Mr. Giuliani to represent him, according to the former mayor, who said he declined because it would have posed a conflict with his work for the president. Instead, Mr. Giuliani said, he interviewed Mr. Lutsenko for hours, then had one of his employees — a “professional investigator who works for my company” — write memos detailing the Ukrainian prosecutors’ claims about Ms. Yovanovitch, Mr. Biden and others.

Mr. Giuliani said he provided those memos to Secretary of State Mike Pompeo this year and was told that the State Department passed the memos to the F.B.I. He did not say who told him.

Mr. Giuliani said he also gave the memos to the columnist, John Solomon, who worked at the time for The Hill newspaper and published articles and videos critical of Ms. Yovanovitch, the Bidens and other Trump targets. It was unclear to what degree Mr. Giuliani’s memos served as fodder for Mr. Solomon, who independently interviewed Mr. Lutsenko and other sources.

Mr. Solomon did not immediately respond to a request for comment.

The lobbying disclosure law contains an exemption for legal work, and Mr. Giuliani said his efforts to unearth information and push both for investigations in Ukraine and for news coverage of his findings originated with his defense of Mr. Trump in the special counsel’s investigation.

He acknowledged that his work morphed into a more general dragnet for dirt on Mr. Trump’s targets but said that it was difficult to separate those lines of inquiry from his original mission of discrediting the origins of the special counsel’s investigation.

Mr. Giuliani said Mr. Lutsenko never specifically asked him to try to force Ms. Yovanovitch’s recall, saying he concluded himself that Mr. Lutsenko probably wanted her fired because he had complained that she was stifling his investigations.

“He didn’t say to me, ‘I came here to get Yovanovitch fired.’ He came here because he said he had been trying to transmit this information to your government for the past year, and had been unable to do it,” Mr. Giuliani said of his meeting in New York with Mr. Lutsenko. “I transmitted the information to the right people.”

And since the WSJ reported that Pete Sessions — named as Congressman 1 in the Lev Parnas/Igor Fruman indictment — was cooperating with a grand jury subpoena targeting Rudy,

A grand jury has issued a subpoena related to Manhattan federal prosecutors’ investigation into Rudy Giuliani, seeking documents from former Rep. Pete Sessions about his dealings with President Trump’s personal lawyer and associates, according to people familiar with the matter.

The subpoena seeks documents related to Mr. Giuliani’s business dealings with Ukraine and his involvement in efforts to oust the U.S. ambassador in Kyiv, as well as any interactions between Mr. Sessions, Mr. Giuliani and four men who were indicted last week on campaign-finance and conspiracy accounts, the people said.

Mr. Sessions’ knowledge of Mr. Giuliani’s dealings is a primary focus of the subpoena, the people said.

There has been a closer review of whether it would be possible to indict the President’s personal lawyer under foreign agent laws, with broad consensus that what Rudy is doing is actually covered by FARA — and not just his work for Ukraine, but also (among other places) for Turkey.

But there have been a number of claims that, I think, have been too pat about how easy or hard this is going to be.

Greg Craig, Tony Podesta, Vin Weber, and Bijan Kian are not apt precedents

First, a number of people have looked at how SDNY considered — but did not charge — Greg Craig, Tony Podesta, and Vin Weber under FARA, suggesting the same considerations would hold true with Rudy. Others have looked at Greg Craig (who was prosecuted but acquitted in DC for FARA after SDNY decided not to charge it) and Bijan Kian (who was convicted but then had his conviction thrown out by Judge Anthony Trenga based on the legal theory DOJ used) to suggest these cases are too difficult to charge to get Rudy.

It is absolutely the case that when powerful men with skilled lawyers have been pursued under FARA in recent years, DOJ has succeeded not in trial, but instead has gotten either plea deals or failed at trial (and that may have been one of the facts behind Mueller’s decision to strike a plea deal with Paul Manafort). That is sound evidence that SDNY is no doubt aware of.

But several things distinguish Rudy.

Most notably, all of those earlier cases came before DOJ’s newfound commitment to prosecuting FARA, with Mike Flynn prosecutor Brandon Van Grack taking over where a woman named Heather Hunt had been in charge before. At a minimum, that means a process that originally took place with Craig, Podesta, Weber, and Kian under an assumption that FARA would be treated solely as a registration issue may now be taking place under an assumption that violations of FARA — presumably to include both a failure to register and (what most charges have been so far) false statements under registration — can be prosecuted. That assumption would dramatically change the attention with which DOJ would document their communications, so prosecutors would not now be stuck going to trial (as Craig’s prosecutors were) without having DOJ’s documentation of a key meeting.

Notably, the same thing that triggered the FARA prosecution of Mike Flynn — concerns raised by Congress — happened last year when seven Democratic Senators wrote National Security Division head John Demers asking for a review. So there may well be documentation of Rudy’s claims about whether he does or does not need to register that SDNY is building a prosecution around.

Plus, one thing clearly distinguishes Rudy from all these other men. Rudy is not taking this investigation seriously, and does not have a lawyer reviewing his exposure. From reports, he may not have the ready cash to pay the likes of Rob Kelner (Flynn’s original, very competent, lawyer) or Robert Trout (Kian’s excellent lawyer). So he may be doing things now (not least, running his mouth on TV and making public statements about who he works for and how it gets paid) that put him at greater exposure.

Rudy G’s efforts to implicate State and DOJ (and the President) in his work

That said, another thing distinguishes Rudy from these past cases. Since the whistleblower complaint got made public, he has spent most of his time insisting that everything he did, he did with the awareness and involvement of — at least — the State Department. And in Trump’s July 25 call to Volodymyr Zelensky, he invoked Bill Barr’s name right alongside his nominal defense attorney.

Both foreign agent statutes (FARA — the one being discussed for Rudy, and 18 USC 951 — another one, with more flexibility, that Kian was charged under) require registration with the Attorney General. And while telling foreigners you’re negotiating with that the Attorney General will be by soon to pick up the disinformation demanded does not fulfill the requirements for registry (in part, the point of registering is to provide a paper trail so the public can track who is paying for what), it does change things that Rudy is suggesting that his work has the imprimatur of official policy to it.

That said, the assumption that implicating powerful government figures will keep you safe is a dangerous proposition. If the easiest way to end the Ukraine inquiry is to blame Rudy for it all (and if that’s still possible after several weeks of damning testimony), that may well come to pass.

And if Bill Barr needs to greenlight a FARA prosecution of Rudy as a way to minimize the damage to the Administration, and to himself, he may well do that (yet another reason why he should have recused long ago).

That’s all the more true given that most of Trump’s aides seem to recognize how damaging Rudy is for Trump’s exposure. If Trump won’t separate himself from Rudy, his lackeys might one day decide, then separate Rudy from Trump by prosecuting him, the same way they separated Michael Cohen from Trump.

That said, with Trump, loyalty is always transactional. And if he believes Rudy has dirt that can bring him down — and given the likelihood some of what Rudy is doing is the continuation of what Paul Manafort had been doing since August 2, 2016, that may be true — then Trump will defend Rudy’s work even if it means claiming everything he did operated under Article II authority.

The additional factor: ConFraudUs

The discussions about Rudy’s exposure under FARA, however, seem not to have considered another factor: that Lev Parnas and Igor Fruman have already been charged with conspiracy in conjunction with actions Rudy had a key role in. The Ukrainian grifter indictment charges them with two counts of Conspiracy to Defraud the US for hiding what money was behind their influence campaign on Ukraine (count 1) and Nevada marijuana (count 4), as well as False Statements to the FEC (count 2) and falsification of records (count 3) tied to the Ukraine influence operation. Counts 1-3 all pertain to the Ukrainian grifters laundering of campaign funds through Global Energy Producers, a front that (SDNY alleges) they falsely claimed was “a real business enterprise funded with substantial bona fide capital investment,” the major purpose of which “is energy trading, not political activity.” Those funds went, among other places, to the Trump related Super PAC America First Action and to Congressman Sessions.

Rudy has equivocated about his relationship to the Ukrainian grifters (and claims it goes through Fraud Guarantee, not GEP). But John Dowd, writing as the grifters’ lawyer, already stated for the record that he does have ties and those ties relate to his representation of the President. That is, the grifters are working for him, even while he works for them.

That’s important because Sessions’ statements have denied any official action in response to meetings with the grifters, but he also had meetings with Rudy in the time period, official action in response to which he has not denied. In addition, Rudy (whom Sessions says he has been friends with for three decades) also headlined a fundraiser for Sessions. And on top of the straw donations the grifters gave Sessions directly, America First Action gave Sessions far more to him, $3 million, the indictment notes twice.

In other words, while Sessions has denied doing anything in response to the grifters’ meetings, he has not denied doing anything in response to Rudy’s communications with him. If he sent his letter calling for the ouster of Marie Yovanovitch in response to a request from Rudy — whose finances are inextricably tied to the grifters — then it may be fairly easy to add him to the conspiracy the (successful) object of which was to get Yovanovitch fired. The propaganda Rudy sent (as laid out by NYT, and which the State IG already sent to the FBI earlier this year) would then simply be part of the conspiracy.

A few more points. There’s a passage of the indictment included to substantiate the allegation that the grifters were affirmatively trying to hide their purpose.

Indeed, when media reports about the GEP contributions first surfaced, an individual working with PARNAS remarked, “[t]his is what happens when you become visible … the buzzards descend,” to which PARNAS responded, “[t]hat’s why we need to stay under the radar…”

The indictment doesn’t disclose a number of details about this communication: who the interlocutor is, how it was collected, and whether it involved a mere warrant (for stored communications such as email or texts) or a wiretap. But particularly given the seeming overlap between these activities and those of people we know were surveilled during the period in question, it’s a pregnant inclusion in the indictment. It suggests the Feds may already be privy to far more about this scheme and the reasons the grifters might want it suppressed. Add that to the fact that, as WSJ reported, the Feds already have Rudy’s bank records, which will show whether he really worked for Fraud Guarantee or whether that, like GEP, is just a front.

Cui bono

Finally, consider this. The indictment says that the grifters were pushing to oust Yovanovitch to benefit  particular unnamed Ukrainians’ interests.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukrainian government official with whom they were working.

[snip]

At and around the time PARNAS and FRUMAN committed to raising those funds for [Sessions], PARNAS met with [SESSIONS] and sought [his] assistance in causing the U.S. Government to remove or recall [Yovanovitch]. PARNAS’s efforts to remove the Ambassador were conducted, at least in part, at the request of one or more Ukrainian government officials.

According to NBC, the Ukrainian in question was Yurii Lutsenko. But Lutsenko has since been ousted, and he has reneged on statements elicited by Rudy implicating the Bidens. More importantly, one of the promises Zelensky made in his July 25 call to Trump was to put in his own prosecutor who would pursue the two investigations — to trump up a claim Ukraine was behind the election tampering in 2016, and to invent evidence against Hunter Biden — that Trump wanted.

The President: Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor bf New York Ci:ty, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The oteer thing, There’s a lot of talk about Biden’s son. that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.

President Zelenskyy: I wanted to tell ·you about the prosecutor. First of all I understand arid I’m knowledgeable about the situation. Since we have won the absolute majority in our Parliament; the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look. into the situation, specifically to the company that you mentioned in this issue.

Which is what led to Lutsenko’s ouster.

Moreover, the prosecutor Biden shut down was not Lutsenko, but Viktor Shokin, who has written affidavits which then got fed to John Solomon on behalf of Dmitry Firtash, who is trying hard to avoid extradition (on bribery charges) to the US.

That — plus the financial and legal ties between Firtash and the grifters — suggests there may be other Ukrainians on whose behalf the grifters were working to get Yovanovitch withdrawn. Firtash is certainly one. A corrupt prosecutor with ties to Russian intelligence, Kostiantyn Kulyk, who had worked for all these guys — and who is behind a dossier on accusing Hunter Biden of corruption — may be another. That is, Yovanovitch may have been the impediment not to inventing dirt on the Bidens, which is a fairly easy ask, but instead on creating the pre-conditions for people like Firtash to go free (which would also explain the natural gas angle).

All of which is to say that it would be a fairly trivial matter to establish the evidence to charge Rudy in ConFraudUs along with the Ukrainian grifters, as SDNY already has a lot of the evidence it would need.

Yes, Rudy Giuliani is, by all appearances, in blatant violation of FARA. Yes, he may get away with that, in part because DOJ hasn’t yet figured out hard to charge it consistently (though knows what not to do given recent history), and in part because he has made sure to implicate Trump and his cabinet officials.

But there’s a larger question about whether those same financial ties expose Rudy for much uglier conspiracy charges.

Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

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According to Mike Flynn’s Fox News lawyer, Sidney Powell, to “defend” himself in a guilty plea he has already sworn to twice under oath, he needs to obtain unredacted versions of a Comey memo showing he was not targeted with a FISA warrant and a FISA order showing that people who were targeted with FISA warrants might have been improperly scrutinized while they were overseas.

That’s just part of the batshittery included in a request for Brady material submitted to Emmet Sullivan last Friday.

The motion is 19 pages, most of which speaks in gross generalities about Brady obligations or repeats Ted Stevens Ted Stevens Ted Stevens over and over again, apparently a bid to convince Judge Emmet Sullivan that this case has been subject to the same kind of abuse that the late Senator’s was.

After several readings, I’ve discovered that Powell does make an argument in the motion: that if the government had provided Flynn with every damning detail it has on Peter Strzok, Flynn might not have pled guilty to lying to Strzok about his conversations with Russian Ambassador Sergey Kislyak or admitted that he used a kickback system to hide that he was a paid agent of Turkey while getting Top Secret briefings with candidate Trump.

They affirmatively suppressed evidence (hiding Brady material) that destroyed the credibility of their primary witness, impugned their entire case against Mr. Flynn, while at the same time putting excruciating pressure on him to enter his guilty plea and manipulating or controlling the press to their advantage to extort that plea. They continued to hide that exculpatory information for months—in direct contravention of this Court’s Order—and they continue to suppress exculpatory information to this day.

One of the things Powell argues Flynn should have received is unredacted copies of every text Strzok sent Lisa Page.

The government’s most stunning suppression of evidence is perhaps the text messages of Peter Srzok and Lisa Page. In July of 2017, (now over two years ago), the Inspector General of the Department of Justice advised Special Counsel of the extreme bias in the now infamous text messages of these two FBI employees. Mr. Van Grack did not produce a single text messages to the defense until March 13, 2018, when he gave them a link to then-publicly available messages. 14

Mr. Van Grack and Ms. Ahmad, among other things, did not disclose that FBI Agent Strzok had been fired from the Special Counsel team as its lead agent almost six months earlier because of his relationship with Deputy Director McCabe’s Counsel—who had also been on the Special Counsel team—and because of their text messages and conduct. One would think that more than a significant subset of those messages had to have been shared by the Inspector General of the Department of Justice with Special Counsel to warrant such a high-level and immediate personnel change. Indeed, Ms. Page left the Department of Justice because of her conduct, and Agent Strzok was terminated from the FBI because of it.

14 There have been additional belated productions. Each time more text messages are found, produced, or unredacted, there is more evidence of the corruption of those two agents. John Bowden, FBI Agent in Texts: ‘We’ll Stop’ Trump From Becoming President, THE HILL (June 14, 2018), https://thehill.com/policy/national-security/392284-fbi-agent-in-texts-well-stop-trumpfrom-becoming-president; see also U.S. Dept. of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018) (https://www.justice.gov/file/1071991/download). But the situation is even worse. After being notified by the Inspector General of the Department of Justice of the extraordinary text communications between Strzok and Page (more than 50,000 texts) and of their personal relationship, which further compromised them, Special Counsel and DOJ destroyed their cell phones. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation: Recovery of Text Messages From Certain FBI Mobile Devices, Redacted Ed. Washington, D.C. (2018), https://www.justice.gov/file/1071991/download. This is why our Motion also requests a preservation order like the one this Court entered in the Stevens case.

As is true of most of this filing, Powell gets some facts wrong here. The public record says that as soon as Mueller got the warning from Michael Horowitz about the texts, he started moving Strzok off the team. He didn’t need to see the texts, that they were there was issue enough. And Lisa Page remained at FBI until May 2018, even after the texts were released to the public.

And while, if Sullivan had taken Flynn’s initial guilty plea rather than Rudy Contreras, one might argue that Van Grack should have alerted Flynn’s lawyer Rob Kelner of the existence of the Strzok-Page texts, DOJ was not required to turn them over before Flynn’s guilty plea. Moreover, the problem with claiming that withholding the Strzok-Page texts prevented Flynn from taking them into account, is that they were made public the say day Emmet Sullivan issued his Brady order and Flynn effectively pled guilty again a year after they were released, in sworn statements where he also reiterated his satisfaction with his attorney, Kelner. Any texts suggesting bias had long been released; what remains redacted surely pertains either to their genuine privacy or to other counterintelligence investigations.

Finally, at least as far as public evidence goes, Strzok was, if anything, favorable to Flynn for the period he was part of the investigation. He found Flynn credible in the interview, and four months later didn’t think anything would come of the Mueller investigation. So the available evidence, at least, shows that Flynn was treated well by Strzok.

The filing also complains about information just turned over on August 16.

For example, just two weeks ago, Mr. Van Grack, Ms. Curtis, and Ms. Ballantine produced 330 pages of documents with an abject denial the production included any Brady material.6 Yet that production reveals significant Brady evidence that we include and discuss in our accompanying Motion (filed under seal because the prosecutors produced it under the Protective Order).

6 “[T]he government makes this production to you as a courtesy and not because production of this information is required by either Brady v. Maryland, 373 U.S. 83 (1963), or the Court’s Standing Order dated February 16, 2018.” Letter from Mr. Brandon Van Grack to Sidney K. Powell, Aug. 16, 2019.

Given the timing, it may well consist of the unclassified materials showing that Turkey (and possibly Russia) believed Flynn to be an easy mark and expected to be able to manipulate Trump through him. I await either the unsealing of Powell’s sealed filing or the government response to see if her complaints are any more worthy than this filing.

That’s unlikely. Because the rest of her memo makes a slew of claims that suggest she’s either so badly stuck inside the Fox bubble she doesn’t understand what the documents in question actually say, or doesn’t care. In her demand for other documents that won’t help Flynn she,

  • Misstates the seniority of Bruce Ohr
  • Falsely claims Bruce Ohr continued to serve as a back channel for Steele intelligence when in fact he was providing evidence to Bill Priestap about its shortcomings (whom the filing also impugns)
  • Suggests the Ohr memos pertain to Flynn; none of the ones released so far have the slightest bit to do with Flynn
  • Falsely suggests that Andrew Weissmann was in charge of the Flynn prosecution
  • Claims that Weissman and Zainab Ahmad had multiple meetings with Ohr when the only known meeting with him took place in fall 2016, before Flynn committed the crimes he pled guilty to; the meeting likely pertained to Paul Manafort, not Flynn
  • Includes a complaint from a Flynn associate that pertains to alleged DOD misconduct (under Trump) to suggest DOJ prosecutors are corrupt

In short, Powell takes all the random conspiracy theories about the investigation and throws them in a legal filing without even fact-checking them against the official documents, or even, at times, the frothy right propaganda outlets that first made the allegations.

Things get far weirder when it comes to her demands relating to FISA information. In a bid to claim this is all very pressing, Powell demands she get an unredacted version of the Comey IG Report.

Since our initial request to the Department by confidential letter dated June 6, 2019, we have identified additional documents that we specify in our Motion. Now, with the impending and just-released reports of the Inspector General, there may be more. The Report of the Inspector General regarding James Comey’s memos and leaks is replete with references to Mr. Flynn, and some information is redacted. There may also be a separate classified section relevant to Mr. Flynn. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02 (Aug. 29, 2019), https://oig.justice.gov/reports/2019/o1902.pdf

The only redacted bits in the report are in Comey’s memos themselves — the stuff that the frothy right is currently claiming was so classified that Comey should have been prosecuted for leaving them in a SCIF at work. Along with unclassified sections quoting Trump saying he has “serious reservations about Mike Flynn’s judgment” (the redacted bit explains that the President was pissed that Flynn didn’t tell him about Putin’s congratulatory call right away) and “he had other concerns about Flynn,” there’s this section that redacts the answer to Reince Priebus’ question about whether the FBI has a FISA order on Flynn (PDF 74).

The answer, though, is almost certainly no. Even if the FBI obtained one later, there was no way that Comey would have told Priebus that Flynn was targeted; the FBI became more concerned about Flynn after this February 8 conversation, in part because of his continued lies about his work with Turkey.

Flynn’s team also demands an unredacted copy of this 2017 FISA 702 Rosemary Collyer opinion, though Powell’s understanding of it seems to based off Sara Carter’s egregiously erroneous reporting on it (here’s my analysis of the opinion).

Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only did the last administration—especially from late 2015 to 2016—dramatically increase its use and abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained information among federal agencies.10 Judge Collyer determined that former FBI Director Comey gave illegal unsupervised access to raw NSA data to multiple private contractors. The court also noted that “the improper access granted the [redacted] contractors was apparently in place [redacted] and seems to have been the result of deliberate decision making” including by lawyers.11, 12

10 See also Charlie Savage, NSA Gets More Latitude to Share Intercepted Communications, THE N.Y. TIMES (Jan. 12, 2017) (reporting that Attorney General Loretta Lynch signed new rules for the NSA that permitted the agency to share raw intelligence with sixteen other agencies, thereby increasing the likelihood that personal information would be improperly disclosed), https://www.nytimes.com/2017/01/12/us/politics/nsa-gets-more-latitude-to-share-interceptedcommunications.html; See also Exec. Order No. 12,333, 3 C.F.R. 200 (1982), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003).

11 FISC Mem. and Order, p. 19, 87 (Apr. 26, 2017) www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (noting that 85% of the queries targeting American citizens were unauthorized and illegal).

12 This classified and heavily redacted opinion is one of the documents for which defense counsel requests a security clearance and access.

As a threshold matter, Powell gets virtually everything about the Collyer memo wrong. Collyer didn’t track any increase in “about” searches (it was one of the problems with her memo, that she didn’t demand new numbers on what NSA was doing). It tracked a greater number of certain kinds of violations than previously known. The violation resulting in the 85% number she cited was on US persons targeted between November 2015 and May 2016, but the violation problem existed going back to 2012, when Flynn was still part of the Deep State. What Collyer called a Fourth Amendment violation involved problems with 704/705b targeting under FISA, which are individualized warrants usually tied to individualized warrants under Title I (that is, the kind of order we know targeted Carter Page), and probably a limited set of terrorism targets. Given that the Comey memo almost certainly hides evidence that Flynn was not targeted under FISA as of February 8, 2017, it means Flynn would have had to be a suspected terrorist to otherwise be affected. Moreover, the NSA claimed to have already fixed the behavioral problem by October 4, 2016, even before Carter Page was targeted. I had raised concerns that the problems might have led to problems with Page’s targeting, but since I’ve raised those concerns with Republicans and we haven’t heard about them, I’m now fairly convinced that didn’t happen.

At least some of the FBI violation — letting contractors access raw FISA information — was discontinued in April 2016, before the opening of the investigation into Trump’s flunkies, and probably all was discontinued by October 4, 2016, when it was reported. One specific violation that Powell references, however, pertains to 702 data, which could not have targeted Flynn.

Crazier still, some of the problems described in the opinion (such as that NSA at first only mitigated the problem on the tool most frequently used to conduct back door searches) cover things that happened on days in late January 2017 when a guy named Mike Flynn was National Security Advisor (see PDF 21).

Powell should take up her complaints with the guy running National Security at the time.

Craziest still, Powell describes data collected under EO 12333 as “illegally obtained information” (Powell correctly notes that the Obama Administration permitted sharing from NSA to other agencies, but that EO would not affect the sharing of FISA information at all). If EO 12333 data, which lifetime intelligence officer Mike Flynn used through his entire career, is illegally obtained, then it means lifetime intelligence officer Mike Flynn broke the law through his entire government career.

Sidney Powell is effectively accusing her client (incorrectly) of violating the law in a motion that attempts to argue he shouldn’t be punished for the laws he has already admitted breaking.

In short, most of the stuff we can check in this motion doesn’t help Flynn, at all.

And at least before Powell submitted this, Emmet Sullivan seemed unimpressed with her claims of abuse.

The government and Flynn also submitted a status report earlier on Friday. In the status report, the government was pretty circumspect. Flynn’s cooperation is done (which is what they said almost a year ago), they’d like to schedule sentencing for October or November, and they’ve complied with everything covered by Brady. Anything classified, like Powell is demanding, would be governed by CIPA and only then discoverable if it is helpful to the defense.

Powell made more demands in the status report, renewing her demand for a security clearance and insisting there are other versions of the Flynn 302.

To sort this out, the government suggested a hearing in early September, but Powell said such a hearing shouldn’t take place for another month (during which time some of the IG reports she’s sure will be helpful will come out).

The parties are unable to reach a joint response on the above topics. Accordingly, our respective responses are set forth separately below. Considering these disagreements, the government respectfully requests that the Court schedule a status conference. Defense counsel suggests that a status conference before 30 days would be too soon, but leaves the scheduling of such, if any, to the discretion of the Court. The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

Judge Sullivan apparently sided with the government (and scheduled the hearing for a date when Flynn’s attorneys claim to be unable to attend).

Every time Flynn has tried to get cute thus far, it has blown up in his face. And while Sullivan likely doesn’t know this, the timing of this status hearing could be particularly beneficial for the government, as they’ll know whether Judge Anthony Trenga will have thrown out Bijan Kian’s conviction because of the way it was charged before the hearing, something that would make it far more likely for the government to say Flynn’s flip-flop on flipping doesn’t amount to full cooperation.

And this filing isn’t even all that cute, as far as transparent bullshit goes.

With Latest Stunt, Mike Flynn May Save Bijan Kian from Prison Time But Double His Own

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When Mike Flynn hired new counsel, it became clear he was … up to something. Now that something might get him — and possibly even his son (concerns about whom motivated Flynn to cooperate in the first place) — sent to prison. Or, it might spectacularly fuck over the government. We’ll find out next week, when Flynn’s former partner Bijan Kian goes on trial … or maybe sooner, given that Emmet Sullivan has demanded details on the backstory before the end of the week.

Filings unsealed in Kian’s case make it clear that, since the time Flynn replaced the very good Rob Kelner with Fox News firebreather Sidney Powell and Jesse Binnall, he reneged on a key part of his guilty plea. He newly claimed to prosecutors that that he had not knowingly lied about working for Turkey in the March 7, 2017 FARA filing that admitted Turkey might benefit — but denied they were paying for — his services. In response, the government has informed Kian they will not have Flynn testify at trial, and instead tried to name him a co-conspirator and submit one of his statements as the statements of a co-conspirator. That led to the unsealing of these documents, with Kian trying to prevent the government from upending their defense strategy, which has consisted of portraying Flynn as a liar, and Flynn trying to prevent the government from designating him a co-conspirator. Last night, Judge Anthony Trenga ruled largely for Kian on a  bunch of other matters (which may have interesting effects for FARA and 951 prosecutions in EDVA); along the way Trenga ruled that the government has not sufficiently shown a conspiracy to violate 951 such that they can enter Akim Alptekin’s statements as a co-conspirator. That will also prevent them–at least as of now–from entering one exhibit involving Flynn as the statement of a co-conspirator, unless and until they submit enough evidence at trial to lay out such a conspiracy (though that exhibit will be admissible under other standards). Naming Flynn a co-conspirator might make it easier to prove a conspiracy, but they’re not there yet.

To be sure, Kian (who like Flynn hired really good lawyers but unlike Flynn did what they told him and also didn’t fire them) already stood a good chance of prevailing at trial, because Trenga is really skeptical of the way the government charged this, including their initial decision not to treat Flynn himself as a co-conspirator. But the chaos Flynn has caused by reneging on his testimony may be the final straw that sinks the government’s case.

All that said, Flynn’s decision to renege on his testimony may have short-circuited a plan to challenge his guilty plea down the road. That’s because Emmet Sullivan has ordered the parties to immediately explain how the government’s decision not to have Flynn testify will affect his sentencing, which had been delayed exclusively for that purpose.

Flynn’s motion objecting to being named a co-conspirator is what you’d expect from a firebreather. It makes a lot of allegations about Flynn being pressured to plead the way he did and invokes David Laufman, whom the frothy right has inserted into some of their hoaxes, to suggest that it was improper for DOJ to insist that the National Security Advisor disclose that he had been on Turkey’s payroll while ostensibly serving as Trump’s top national security advisor during  the campaign.

A key part of this strategy appears to be to review Kelner’s prior work, and blame him for the decisions already made.

This really fucks over Kelner, who in December was on the verge of getting his client no prison time before Flynn decided to use his sentencing as an opportunity to discredit the prosecution of him for acting as an unregistered foreign agent while getting Top Secret briefings, and who might still have saved him from prison time had he simply testified in the Kian trial as planned. Kelner will be unable to rebut some of the claims Powell is making, because Flynn gets to decide what privilege to waive, not Kelner. Flynn has probably not even paid Kelner due recompense for that work! Note, too, how Kelner is exposed by Flynn’s own lies.

All that said, the case Flynn’s lawyers are making is — typical of the frothy right — better suited for seeding more conspiracies than winning a legal argument. First, they overstate the assurances the government made that Flynn had no danger of being described as a co-conspirator in this case.

The transcript all sides are relying on — the June 13 statement the government tried to correct — does not deny that Flynn was part of the conspiracy, just states that the government won’t label him as such.

THE COURT: Let me ask you this. It’s not in the indictment. Is the government alleging that Mr. Flynn was part of this conspiracy?

MR. GILLIS: We are not, Your Honor.

THE COURT: Right. So you’re not presenting any statements by him, any testimony – there would be no evidence from him as to the existence of the conspiracy?

MR. GILLIS: Well, Your Honor – no. Your Honor, as to that. There will certainly be testimony from General Flynn. And from that testimony, the jury could draw a reasonable inference that there was a conspiracy, but we are not – we do not contend that General Flynn was a part of that conspiracy.

They make it quite clear his testimony would describe actions he was involved in that amount to a conspiracy. The government just wasn’t labeling the guy who was then going to be a friendly witness a co-conspirator. Flynn points to assurances that Gillis told them the government would not charge Flynn in the conspiracy.

Not only did the prosecutors advise the Court on the record that Mr. Flynn is not a coconspirator, AUSA Gillis has stated repeatedly in interviews of Mr. Flynn and representations to counsel that Mr. Flynn was not implicated in the charged conspiracy.4

4 Mr. Gillis informed undersigned counsel and Mr. Flynn twice on June 6 alone that Mr. Flynn was not charged in this conspiracy, and they did not intend to charge him. This is one reason new counsel for Mr. Flynn understood that the government was only interested in and satisfied with Mr. Flynn’s factual testimony as given repeatedly to date–which, as Mr. Gillis put it, “would allow the jury to infer supervision and control” of the project by the Government of Turkey.

These are different things: not alleging Flynn is part of the conspiracy, not contending that he is, not charging him for it, but nevertheless being implicated in it.

Plus, the record before Judge Sullivan is quite clear: absent his cooperation agreement, Flynn could have been charged with both conspiracy and 18 USC 951 (being an Agent of a foreign power).

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

MR. VAN GRACK: Yes, Your Honor.

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

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

MR. VAN GRACK: I believe so.

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

In other words, as far as Sullivan is concerned, given Flynn’s changed testimony the government now reaffirms that he was part of that conspiracy, as they did in December.

Moreover, Flynn’s lawyers doesn’t seem to understand the purpose of Flynn’s FARA in March 2017, which was to fix a reliance on a commercial exception and admit Flynn that had actually been influence peddling. The March 2017 FARA filing did that. What it didn’t do is admit that Flynn was aware the Turkish government was paying for the work, not just that it might benefit from it (which is what the filing said). What the FARA filing did not do is admit Flynn knew the Turkish government was his actual client, not Inovo.

Thus, showing (as they do) that Kelner learned and expressed concern about Turkey’s role in January 2017 doesn’t prove he knew that the FARA filing was a lie in March. Nor does pointing out that Alpetkin’s lawyers lied. At one point they point to Kelner, in a recent interview with prosecutors, stating that they did not go through all of Flynn Intelligence Group emails, without realizing that that would mean any lies Flynn told to Kelner would be more significant.

In another, they make a big deal that notes of significant legal issues don’t include something — the evolution of the project from one focused on business to one focused on influence-peddling — that was already well established by that point.

Handwritten notes of 2/22/2017 meeting with Mr. Flynn were transcribed a year later and omit the crucial fact that Mr. Flynn told counsel the “business activities” reason that originated the project quickly “crystalized” down to “Gulen” which the raw notes show with a V diagram. The later transcription also omits or misinterprets the fact that the op-ed was pushed at the time for campaign reasons (in addition to for the Inovo project). Compare Ex. 8 with Ex. 9. See Ex. 8-A, transcription of handwritten notes.

But there’s abundant reason to believe Flynn’s claim here — that the op-ed in question, which was done for Turkey, was in fact really meant to benefit the campaign — was utter horseshit. And the accurate transcription of these notes reflecting that conversation …

… instead strongly suggests that in the latest document Flynn produced yesterday, his lawyers caught him lying to them about the central purpose of the op-ed, which was to help Turkey.

In other words, the documents released yesterday show that Kelner didn’t read through every FIG document, and that up until the end Flynn continued to lie to him about what the purpose of the November 8, 2016 op-ed was (as clearly shown by other records released in advance of this trial). They support the government’s claim that Flynn knowingly lied in March 2017.

Don’t get me wrong. This strategy, bolstered by months of riling of the frothy right, might well have worked like a charm. It even still may!

But Emmet Sullivan — and the government — are under no obligation to give Flynn’s Fox firebreathers time to sow these new conspiracies.

Plus, Sullivan seems to have expected something like this might ultimately happen, because the last time Flynn tried to sow conspiracies, only to walk them back, Sullivan made sure to put Flynn under oath before he stated that he was satisfied with Kelner’s representation.

THE COURT: All right. I want to focus on the plea first because I think I need to. And there are some questions that I’m going to ask Mr. Flynn, and because this is an extension, in my opinion, of the plea colloquy, I’m going to ask the courtroom deputy at that time to administer the oath, because normally when we have plea colloquies, we always require a defendant to be under oath, and that’s what I’m going to do this morning, unless there are objections.

MR. KELNER: No objection, Your Honor.

[snip]

So I’m going to invite Mr. Flynn and his attorney or attorneys to come to the podium, and I’m going to ask the courtroom deputy to administer the oath to Mr. Flynn.

(MICHAEL FLYNN, DEFENDANT IN THE CASE, SWORN)

THE COURT: All right. And I will inform you, sir, that any false answers will get you in more trouble. Do you understand that?

THE DEFENDANT: Yes.

[snip]

THE COURT: All right. Are you satisfied with the services provided by your attorneys?

THE DEFENDANT: I am.

THE COURT: In certain special circumstances, I have over the years appointed an independent attorney to speak with a defendant, review the defendant’s file, and conduct necessary research to render a second opinion for a defendant. Do you want the Court to consider appointing an independent attorney for you in this case to give you a second opinion?

THE DEFENDANT: I do not, Your Honor.

THE COURT: Do you feel that you were competent and capable of entering into a guilty plea when you pled guilty on December 1st, 2017?

THE DEFENDANT: I do, Your Honor.

THE COURT: Do you understand the nature of the charges against you and the consequences of pleading guilty?

THE DEFENDANT: I do understand, Your Honor.

THE COURT: And that was covered extensively by Judge Contreras. I’ve read the transcript. Are you continuing to accept responsibility for your false statements?

THE DEFENDANT: I am, Your Honor

As bmaz presciently wrote at the time, Sullivan was anticipating he might need to lay the groundwork for a fraud on the court.

All of which is to say, it was always going to be hard for Flynn to pull off backing out of his plea deal, even with the three months Powell asked to prepare.

But Sullivan was already fairly pissed that Flynn was getting off easy for having served the interests of Turkey while also serving as Trump’s top national security advisor. He probably had cooled off in the interim 7 months. Except now Flynn has basically taken steps to suggest he perjured himself in front of Judge Sullivan.

Which at least gives Sullivan the opportunity to sentence him immediately, and harshly.

Update: The government says that Flynn’s change of testimony does raise significant issues for Flynn’s sentencing, but they won’t be sure how until after the Kian trial.

At this time the government cannot speculate on how specifically the aforementioned records will impact the government’s sentencing position in the proceedings before this Court. Although the records raise numerous issues, the Rafiekian trial may still impact the government’s position. For example, Rafiekian could call the defendant to testify at trial. As a result, the government intends to reassess its sentencing position at the conclusion of that trial.

It sounds like they’ll want to move to sentencing shortly after trial, but they do want to wait until after it.

Update: The government just updated its witness list to add Flynn’s spawn. That should make things interesting next week, as the spawn can verify some of the things pops might otherwise do.

Timeline

June 27: Flynn reneges on part of his guilty plea

July 2: Prosecutors tell Kian’s lawyers that Flynn now claims he didn’t know about the lies being submitted in his FARA filing

July 3: Government files a correction to the record, notifying Kian that they will not call Flynn as a witness, will treat him as a co-conspirator, and in so doing, submit one of his statements as evidence

July 5: Kian asks for a hearing to force the disclosure of the correction; asks for hearing to see whether indictment was based of coerced testimony from Flynn

July 6: The government rebuts Kian’s claim that his indictment relied on false Flynn testimony, also noting that it was the defense that assumed Flynn would testify

July 8: Kian complains that his comments in November 2016 about dissolving the Flynn Intelligence Group changed when Flynn was filing fraudulent statements on FARA; Flynn tries to prevent the government from calling Flynn a co-conspirator

Why Didn’t Mueller Hold Counterintelligence Suspect Mike Flynn Responsible for Sanctions Call?

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There’s a problem with the way the Mueller Report describes events pertaining to Mike Flynn.

It describes how someone under active counterintelligence investigation for his ties to Russia and already on thin ice with the President-Elect got on the phone and, through the Russian Ambassador, persuaded Vladimir Putin to hold off on retaliating for US sanctions. It describes how Flynn avoided leaving a paper trail of that call. Ultimately, the report remains inconclusive about whether Flynn made that call on his own initiative — which would seem to bolster the case he had suspect loyalties with the Russians — or at the direction of the President — in which case his actions would be appropriate from a constitutional standpoint (because this is the kind of thing the President can choose to do), but not a legal one (because he was purposely hiding it from the Obama Administration). One or the other would seem to be a necessary conclusion, but the Mueller Report reaches neither one.

In part, that’s because both Flynn and KT McFarland seem to have protected President Trump’s plausible deniability even after both got caught lying about these events. But it also appears that Mueller is more certain about the answer than he lets on in the public report.

This is the subject that, in my post noting that the Mueller Report has huge gaps precisely where the most acute counterintelligence concerns about Trump’s relationship with Putin are, I suggested created a logical problem for the report as a whole.

If it is the case that Flynn did what he did on Trump’s orders — which seems the only possible conclusion given Mueller’s favorable treatment of Flynn — then it changes the meaning of all of Trump’s actions with regard to the Russian investigation, but also suggests that that conclusion remains a counterintelligence one, not a criminal one.

Mike Flynn was under active counterintelligence investigation but he’s not an Agent of Russia

According to the Mueller Report, the first Rosenstein memo laying out the detailed scope of the investigation, dated August 2, 2017, included “four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump.” Two of those four must be his unregistered sleazy influence peddling for Turkey (which he got to plead off of as part of his plea agreement) and the Peter Smith operation to obtain Hillary’s deleted emails (about which his testimony is reflected in the Mueller Report).

Then there’s the counterintelligence investigation into Flynn. We’ve known that the FBI had a counterintelligence investigation into Flynn since before HPSCI released its Russian Report, and a later release of that report described that the investigation was still active when the FBI interviewed Flynn on January 24, 2017.

A key focus of that investigation —  one reflected in Flynn’s January 24, 2017 302 — was his paid attendance at a December 10, 2015 RT event in Moscow in December 2015, where he sat with Putin. The Mueller Report makes just one reference to that event, and only as a way of describing the public reporting on Trump flunkies’ ties to Russia during the campaign.

Beginning in February 2016 and continuing through the summer, the media reported that several Trump campaign advisors appeared to have ties to Russia. For example, the press reported that campaign advisor Michael Flynn was seated next to Vladimir Putin at an RT gala in Moscow in December 2015 and that Flynn had appeared regularly on RT as an analyst.15

15 See, e.g., Mark Hosenball & Steve Holland, Trump being advised by ex-US. Lieutenant General who favors closer Russia ties, Reuters (Feb. 26, 2016); Tom Hamburger et al., Inside Trump’s financial ties to Russia and his unusual flattery of Vladimir Putin, Washington Post (June 17, 2016). Certain matters pertaining to Flynn are described in Volume I, Section TV.B.7, supra.

However, in addition to that trip, the FBI must have been scrutinizing earlier Kislyak contacts that don’t show up in the Report at all:

  • A meeting on December 2, 2015 (described in the HPSCI report) that Kislyak that Flynn and his failson attended in advance of the RT trip at the Russian Embassy
  • A call to Kislyak sometime after GRU head Igor Sergun’s death in Lebanon on January 6, 2016; in his interview with the FBI; Flynn said he called to offer condolences, though he used that excuse for other calls that involved substantive policy discussions; he also claimed, not entirely credibly, not to be associated with the Trump campaign yet
  • Other conversations during the campaign that Flynn revealed to friends that otherwise don’t show up in public documents

In one of the only (unredacted) references to the counterintelligence investigation into Flynn, the Mueller Report describes that Flynn’s contacts with Kislyak became a key focus of that investigation.

Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian government.105 Flynn’s contacts with Kislyak became a key component of that investigation.10

But that passage doesn’t reveal the scope of those contacts and, in spite of detailed analysis of other people’s contacts with Kislyak (including an invite to JD Gordan to his residence that appears similar to the December 2015 one Kislyak extended to Flynn and his son), the Report doesn’t mention those earlier contacts.

Perhaps far more interesting, in the report’s analysis of whether any Trump aide was an agent of Russia, it does not include Flynn in the paragraph explaining why Paul Manafort, George Papadopoulos, and Carter Page were not charged as such. Instead, his foreign influence peddling is treated in a separate paragraph discussing just Turkey.

In addition, the investigation produced evidence of FARA violations involving Michael Flynn. Those potential violations, however, concerned a country other than Russia (i.e., Turkey) and were resolved when Flynn admitted to the underlying facts in the Statement of Offense that accompanied his guilty plea to a false-statements charge. Statement of Offense, United States v. Michael T Flynn, No. l:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”). 1281

The footnote to that paragraph, which given the admission elsewhere that a separate counterintelligence investigation into Flynn focused on Russia, likely deals with Russia, is entirely redacted for Harm to Ongoing Matters reasons.

While we can’t be sure (hell, we can’t even be totally sure this does relate to Russia!), this seems to suggest that the investigation into Russian efforts to cultivate Flynn is ongoing, but he has been absolved of any responsibility for — as an intelligence officer with 30 years of counterintelligence training — nevertheless falling prey to such efforts.

All of which is to say that, along with the descriptions of Trump’s most alarming interactions with Russians including Vladimir Putin, many of Flynn’s contacts with Kislyak and other Russians (including not just Putin but the guy who headed GRU until just before the election hacking started in earnest in January 2016) appear to be treated as counterintelligence information not suitable for public sharing.

The Mueller Report deliberately obscures key details of the timeline on the sanctions call

That’s important to note, because the counterintelligence conclusion on Flynn has to be utterly central to the analysis of Trump’s attempt to obstruct the investigation into Flynn.

The two discussions in the Mueller Report (Volume I pages 168 to 173 and Volume II pages 24 to 48) of Flynn’s December 2016 conversations with Sergey Kislyak are totally unsatisfying, probably in part because two key witnesses (Flynn and KT McFarland, and possibly others including Steve Bannon) lied when the FBI first interviewed them about the calls; they had also created a deliberately misleading paper trail for the events.

In both places, the Report provides times for some events on December 29, but obscures the most critical part of the timeline. I’ve put the Volume I language at the end of this post. It provides the following timeline for December 29, 2016:

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: [Transition Team Member] Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland calls Flynn, but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

Sometime in here but the Report doesn’t tell us precisely when: Flynn talks to Michael Ledeen, KT McFarland, and then Kislyak. [my emphasis]

4:43PM: McFarland emails other transition team members saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

After the briefing: McFarland and Flynn speak by phone. Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

The next day, December 30, 2016 — after Putin announced they would not retaliate to Obama’s sanctions — Flynn sent a text message to McFarland that very deliberately did not reflect the true content of his communication with Kislyak, reportedly because he wanted to hide that from the Obama Administration (the Trump team had falsely told Obama they would not fuck with their existing policy initiatives).

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

On December 31, after Kislyak called again to tell Flynn that Putin had decided not to retaliate because of the Trump Administration request not to, he and McFarland communicated again about their attempts to convince Russia not to respond to sanctions. Flynn spoke with others that day but “does not recall” whether they discussed the sanctions, though he remembers (but Bannon does not) that Bannon seemed to know about Flynn’s conversation with Kislyak.

The narrative for the same events in the obstruction section has less detail, but infuriatingly, similarly manages to leave out all the details (in bold above) about when Flynn spoke to McFarland and when he called Kisylak.

The thing is, Mueller knows precisely when those Flynn calls happened. The Volume I version of events make it clear they have the call records of Flynn, Michael Ledeen, and McFarland that would provide a precise timeline.

They just refuse to provide those times and the times of key emails, which would add to the clarity about whether Trump learned of Flynn’s plans before he contacted Kislyak.

In the “Intent” discussion regarding obstruction, however, the report suggests that the Trump briefing, where sanctions did come up, preceded the first Flynn call to Kislyak (even though the timeline here suggests it did not).

In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak.

That’s particularly interesting given that the Volume II discussion of events describes how, after Trump fired Flynn, he also fired KT McFarland but offered her a position as Ambassador to Singapore. There’s very little discussion of the explanation for her firing, but they do describe how Trump tried to make McFarland write a memo — very similar to the false one he tried to make Don McGahn write denying that Trump had ordered him to have Rod Rosenstein removed — denying that he had any role in Flynn’s discussion with Kislyak about sanctions. McFarland did not write the memo, as she explained in a Memo for the Record, because she did not know whether Trump had spoken with Flynn or with Russia directly.

The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions.253 Priebus said he told the President he would only direct McFarland to write such a letter if she were comfortable with it.254 Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256

256 KTMF _00000047 (McFarland 2/26/ 17 Memorandum_ for the Record) (“I said I did not know whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”); McFarland 12/22/ 17 302, at 17.

Again, at a minimum, Mueller knows if Trump called Flynn, and may know if Trump called Kislyak or — more likely — Putin. But he’s not telling.

Trump was already pissy with Flynn, so why didn’t he blame him for the sanctions calls?

There’s one more contradictory detail about Trump’s behavior in this narrative.

According to enough witnesses to make it a reliable claim, Trump had already soured on Flynn in December 2016, before all this blew up (but not before Obama warned Trump and Elijah Cummings warned Mike Pence about Flynn’s suspect loyalties).

Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10

As I’ve noted before, Trump made the same complaint to Jim Comey in their “loyalty demand” dinner on January 27, 2017 — but he did so in the context of Flynn not informing him that Vladimir Putin had beaten Theresa May to congratulating him about his inauguration.

All these details — including that Flynn publicly informed Trump of Putin’s call — should make Flynn a bigger counterintelligence concern, not one that could be dismissed more easily than Page and Manafort and Papadopoulos.

Unless Mueller had more certainty that Trump was in the loop of these sanctions discussions — either through Flynn or directly with Putin — than he lets on in the public report.

Mike Flynn’s Interviews with Prosecutors

To sum up, Mueller knows that someone already under investigation for his suspect calls to Russia and Sergey Kislyak got on the phone with Kislyak and undercut the Obama Administration’s attempt to punish Russia for its election interference. Flynn deliberately created a false record of that call, then lied about it when it became public the following month, and continued to lie about it when the FBI asked him about it.Trump allegedly got pissy that Flynn’s counterintelligence exposure had already been raised by Obama, but also got pissy that Flynn wasn’t being obsequious enough to Putin. But, when this all began to blow up in the press, rather than firing Flynn right away for being a counterintelligence problem — the outcome Sally Yates clearly expected would be the no-brainer result — Trump instead repeatedly tried to protect Flynn.

Which is why the likelihood that a key part of Flynn’s cooperation, that relating to the counterintelligence side of the equation, is so interesting.

As I noted when the addendum showing Flynn’s cooperation came out, it likely broke into the Turkish influence peddling [A], two (or maybe three?) topics relating to Trump [B], as well as more classified part of the investigation conducted under Mueller [C].

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

The footnotes from the Mueller Report describing what Flynn told prosecutors when seems to reinforce this.

  1. November 16, 2017: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call
  2. November 17, 2017: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you”
  3. November 19, 2017: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump
  4. November 20, 2017: Whether he told others at MAL, response to Ignatius
  5. November 21, 2017: Whether he told others at MAL, response to Ignatius, meeting with Trump
  6. November 29, 2017: Peter Smith
  7. January 11, 2018: November 30 meeting with Kislyak
  8. January 19, 2018: Flynn did not have specific recollection about telling POTUS on January 3, 2017
  9. April 25, 2018: Peter Smith
  10. May 1, 2018: Peter Smith
  11. September 26, 2018: Proffer response on meetings with Foresman

We know from court filings that Flynn had 19 interviews with prosecutors, of which four pertain to his sleazy influence peddling with Turkey. Here’s what that seems to suggest about his interviews (assuming, probably incorrectly, that they didn’t cover multiple topics at once):

  • Turkish influence peddling: 4 interviews, unknown dates
  • Transition events, 7 interviews: 11/16/17, 11/17/17, 11/19/17, 11/20/17, 11/21/17, 1/11/18, 1/19/18
  • Peter Smith, 3 interviews: 11/29/17, 4/25/18, 5/1/18
  • Counterintelligence: Remaining 5 interviews???, unknown dates

It’s possible, however, there’s a third “links” topic pertaining to Transition era graft, which for scope reasons would not appear in the Mueller Report.

The possibility that Flynn may have had five interviews dedicated to a counterintelligence investigation that implicated Trump would make this Brian Ross story far more interesting. As the Report lays out, when hints that Flynn flipped first came out on November 22, 2017, one of Trump’s lawyers (probably John Dowd) left a voice mail message (!!!) with one of Flynn’s lawyers (probably Rob Kelner). He specifically wanted a heads up about anything that “implicates the President” which would create a “national security issue.”

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains ….

The following day, Trump’s lawyer told Flynn’s that cooperating would reflect hostility to the President.

A week later, once the plea was official on December 1, Flynn had the following leaked to ABC.

During the campaign, Trump asked Flynn to be one of a small group of close advisors charged with improving relations in Russia and other hot spots. The source said Trump phoned Flynn shortly after the election to explicitly ask him to “serve as point person on Russia,” and to reach out personally to Russian officials to develop strategies to jointly combat ISIS.

[snip]

“Flynn is very angry,” the confidant told ABC News Friday. “He will cooperate truthfully on any question they ask him.” [my emphasis]

Only, originally, the story read that Trump asked Flynn to reach out to Russia before the election. The story is often cited as one of the big gaffes of the Russian investigation, but Mother Jones has since corroborated the pre-election timeline with two Flynn associates.

For some reason, Mueller did not hold Mike Flynn responsible for — at a time when he was under active counterintelligence investigation for his ties to Russia — undercutting the official policy of the US on punishing Russia for its election year attack. I wonder whether the content of up to five counterintelligence interviews with Flynn may explain why.

As they are elsewhere, the Washington Post is trying to liberate the filings about Flynn’s cooperation that would explain all this. On Thursday, Emmet Sullivan — the same judge who, after seeing all the sealed filings in Flynn’s case, used some really inflammatory language about Flynn’s loyalty — set a briefing schedule for that effort. Then, acting on his own on Friday, Sullivan scheduled a hearing for June 24 (after the next status report in Flynn’s case but before he would be sentenced) to discuss liberating those filings.

So maybe we’ll find out from the WaPo’s efforts to liberate those documents.

Timeline of known Flynn investigation

November 10, 2016: Obama warns Trump that Mike Flynn’s name kept surfacing in concerns about Russia.

November 18, 2016: Trump names Flynn National Security Adviser.

November 18, 2016: Elijah Cummings warns Mike Pence of Flynn’s Turkish lobbying.

Shortly after inauguration: On “first” call with Kislyak, Flynn responds to Ambassador’s invitation to Russian Embassy that, “You keep telling me that,” alerting others to previous contacts between them.

January 24, 2017: In interview with FBI, Flynn lies about his contacts with Sergey Kislyak.

January 26 and 27, 2017: Sally Yates warns the White House about Flynn’s lies.

February 2, 2017: WHCO lawyer John Eisenberg reviews materials on Flynn’s interview.

February 13, 2017: Flynn fired.

July 19, 2017: Peter Strzok interviewed, in part, about Flynn interview, presumably as part of obstruction investigation.

November 16, 2017: Interview covers: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call.

November 17, 2017: Interview covers: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you.”

November 19, 2017: Interview covers: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump.

November 20, 2017: Interview covers: Whether he told others at MAL, response to Ignatius.

November 21, 2017: Interview covers: Whether he told others at MAL, response to Ignatius, meeting with Trump.

November 22, 2017: Flynn withdraws from Joint Defense Agreement; Trump’s lawyer leaves a message for Flynn’s lawyer stating, in part, “if… there’s information that implicates the President, then we’ve got a national security
issue,…so, you know,…we need some kind of heads up.”

November 23, 2017: Flynn’s attorney returns Trump’s attorney’s call, the latter says cooperation would reflect hostility to the President.

November 29, 2017: Interview covers Peter Smith.

December 1, 2017: Flynn pleads guilty, has story leaked to Brian Ross that his cooperation covers Trump’s orders that he take “serve as point person on Russia,” originally stating that the order preceded the election; the story is corrected to say the order comes ” shortly after the election.” Two Flynn associates subsequently told Mother Jones the contacts did start before the election.

January 11, 2018: Interview covers November 30 meeting with Kislyak.

January 19, 2018: Interview covers Flynn did not have specific recollection about telling POTUS on January 3, 2017.

April 25, 2018: Interview covers Peter Smith.

May 1, 2018: Interview covers Peter Smith.

September 17, 2018: Status report asking for sentencing.

September 26, 2018: Flynn’s attorney offers proffer response on meetings with Bob Foresman.

December 18, 2018: After Judge Emmet Sullivan invokes treason and selling out his country, Flynn delays sentencing.

The Volume I Narrative about December 29, 2016

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

The sanctions were announced publicly on December 29, 2016. 1231 At 1 :53 p.m. that day, McFarland began exchanging emails with multiple Transition Team members and advisors about the impact the sanctions would have on the incoming Administration. 1232 At 2:07 p.m., a Transition Team member texted Flynn a link to a New York Times article about the sanctions. 1233 At 2:29 p.m., McFarland called Flynn, but they did not talk. 1234 Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237 McFarland also believed she may have discussed the sanctions with Priebus, and likewise told him that Flynn was scheduled to talk to Kislyak that night. 1238 At 3: 14 p.m., Flynn texted a Transition Team member who was assisting McFarland, “Time for a call???”1239 The Transition Team member responded that McFarland was on the phone with Tom Bossert, a Transition Team senior official, to which Flynn responded, “Tit for tat w Russia not good. Russian AMBO reaching out to me today.” 1240

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252 During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election. 1253 McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians.1254 McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1255 President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. 1256 McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. 1257

After the briefing, Flynn and McFarland spoke over the phone. 1258 Flynn reported on the substance of his call with Kislyak, including their discussion of the sanctions. 1259 According to McFarland, Flynn mentioned that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration.1260 McFarland also gave Flynn a summary of her recent briefing with President-Elect Trump. 1261

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Two Trajectories: Sleazy Influence Peddler Paul Manafort and Foreign Agent Prosecutor Brandon Van Grack

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Like many, while I expected TS Ellis to give Paul Manafort a light sentence, I’m shocked by just how light it was.

Ellis gave Manafort 47 months of prison time for crimes that the sentencing guidelines say should start at a 19 year sentence. Even if Amy Berman Jackson gives Manafort the stiffest sentence she can give him — 10 years — and makes it consecutive, he’ll still be facing less than the what sentencing guidelines recommend. Ellis even declined to fine Manafort beyond the $24 million he’ll have to pay in restitution (Zoe Tillman lays out the money issues here).

There are a number of reasons to be outraged by this.

Ellis explicitly suggested that Manafort’s crimes were less serious than similar organized crime that people of color would commit. In the wake of this sentence, any number of people (especially defense attorneys) have pointed to non-violent criminals facing more prison time than Manafort. That said, I agree with those who suggest we should aim to bring those other sentences down in line with what the civilized world imposes, and not instead bump white collar criminals up to the barbaric levels that come out of the drug war.

Ellis gave this sentence even though Manafort expressed no remorse. Ellis commented that “I was surprised that I did not hear you express regret for engaging in wrongful conduct. In other words, you didn’t say, ‘I really, really regret not doing what the law requires,'” but nevertheless sentenced him as if he had.

Perhaps most infuriating were the backflips Ellis did to spin Paul Manafort as a good man. He emphasized that Manafort was “not before the court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election,” which is true; but Ellis received the breach determination materials showing that at a time when Manafort was purportedly cooperating, he instead lied about sharing polling data with a suspected Russian asset while discussing a Ukrainian peace deal that he knew amounted to sanctions relief, a quid pro quo. Because those materials go to the issue of whether Manafort took responsibility and was a risk for recidivism, they were fair game for consideration, but Ellis didn’t consider them.

Indeed, because of time served, Ellis effectively sentenced Manafort to an equivalent sentence that Michael Cohen faces having committed an order of magnitude less financial fraud, pled guilty, and provided limited cooperation to the government. Effectively, then, Ellis has sanctioned Manafort’s successful effort to avoid cooperating in the case in chief, on how he and Trump conspired with Russia to exploit our democratic process.

Instead of referring to the materials on Manafort’s refusal to cooperate, Ellis instead just regurgitated defense materials and claimed that aside from stealing millions of dollars from taxpayers and whatever else went on before Amy Berman Jackson, Manafort had “lived an otherwise blameless life.”

And that’s where I step away from a generalized discussion of the barbaric nature of our criminal justice system to look specifically at the barbaric nature of what Paul Manafort has done with his life. I feel much the way Franklin Foer does.

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations.

In an otherwise blameless life, he helped Philippine President Ferdinand Marcos bolster his image in Washington after he assassinated his primary political opponent.

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees.

[snip]

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit.

[snip]

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power.

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan.

Paul Manafort invented the profession of sleazy influence peddler. His own daughter once acknowledged, “Don’t fool yourself. That money we have is blood money.” And our democracy, as well as more corrupt regimes around the globe where Manafort was happy to work, are much less just because of Manafort’s life’s work.

Which is why I take more solace in something that happened the night before Manafort’s sentencing: A CNN report that DOJ has put Brandon Van Grack — a prosecutor who, under Mueller, prosecuted Mike Flynn and his sleazy influence peddler business partners — in charge of a renewed effort to crack down on unregistered sleazy influence peddlers.

The initiative at the Justice Department to pursue violations of the Foreign Agents Registration Act, which requires that an entity representing a foreign political party or government file public reports detailing the relationship, will be overseen by Brandon Van Grack, who left Mueller’s team in recent months to rejoin the national security division.

Van Grack’s appointment to the newly created position and the Justice Department’s interest in expanding its pursuit of foreign influence cases stemmed largely from the impact of Russian operations on the 2016 presidential election, John Demers, the head of the national security division, said Wednesday at a conference on white-collar crime.

With Van Grack’s new role, the Justice Department will shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority,” Demers said.

He also pointed to the impact of a recent settlement with one of the country’s highest-profile law firms — Skadden, Arps, Slate, Meagher & Flom LLP — on the department’s decision to escalate its enforcement in that area.

[snip]

Demers added that the Justice Department is considering seeking congressional authorization for administrative subpoena power to enforce the Foreign Agents Registration Act, which it currently lacks.

“That’s something that we’re taking a hard look at,” he said. Referencing Skadden, he added: “Do I think the firm would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

This marks a decision to treat FARA violations — sleazy influence peddling that hides the ultimate foreign customer — as a real risk to our country. As I have laid out in my comparison of Manafort’s “otherwise blameless life” and Maria Butina’s efforts to infiltrate right wing politics, a venal insider with an already rich political network will be far more effective (and insidious) than even a beautiful woman backed by a mobbed up foreign government official and abetted by her own washed out Republican insider.

I don’t know what Mueller is doing with all the evidence of a conspiracy that he continues to protect. I don’t know that he’ll be able to deliver a prosecutorial conclusion that will deliver justice for the sleazy things that Trump did to win the election. Prosecuting very powerful people is very difficult, and we shouldn’t forget that.

But one other point of this entire investigative process was to learn lessons, to make it harder for hostile outsiders to hijack our democratic process going forward.

In letting Manafort off with a metaphorical wrist-slap, TS Ellis did nothing to deter others who, like Manafort, will sell out our country for an ostrich skin jacket. Even ABJ will face some difficult challenges in DC when she tries to sentence FARA crimes (particularly those of Sam Patten, who cooperated) without precedents to do so.

But the way to build those precedents — the way to establish a record that causes a Skadden Arps or a Rob Kelner to treat FARA registration as the official declaration to the government that it is — is to pursue more of these cases, against sleazy influence peddlers working for all foreign entities, not just the ones we despise.

So Manafort may get off easy for helping Russia interfere in our election in a bid to line up his next gig white-washing brutal oligarchs.

But along the way, our justice system may be adapting to the certainty that he did not live an otherwise blameless life

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Rob Kelner–the Guy Who Signed Mike Flynn’s FARA Filings–Continued to Be Insubordinate in Yesterday’s Hearing

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Most of the attention in yesterday’s Mike Flynn sentencing hearing has focused on Judge Emmet Sullivan’s invocation of treason, which I addressed at length here. But — particularly since I have belatedly realized that Rob Kelner is one of the lawyers referred to in the Bijan Kian indictment who filed a FARA registration that, because of lies attributed to Flynn and Ekim Alptekin, ended up being a false statement, I want to look at two bullshit answers Kelner offered yesterday about his little ploy of introducing language on Peter Strzok and Andrew McCabe in Flynn’s sentencing memo.

Taking the second one first, Sullivan asked Kelner to explain why he chose to cite Peter Strzok’s August 22, 2017 302, which had some language about what a successful liar Flynn can be, and not Flynn’s own utterly damning January 24, 2017 302. This was a question directing counsel to explain why he tried to pull a fast one over on the judge. Any responsive answer would have to address that January 24 302 (and wouldn’t need to address the McCabe memo, at all).

But instead of answering that question, Kelner instead tried to use it to attack the Mueller team.

THE COURT: The other puzzling question I have is this: Can you explain for the record why Mr. Flynn was interviewed by the FBI on January the 24th but the 302 cited in his sentencing memorandum is dated August the 22nd, 2017? There’s no reference, and the January 24th is not highlighted at all.

MR. KELNER: Yes, Your Honor. Thank you for the opportunity to address that. I think there’s been some public confusion about that. The original draft of our brief cited specifically to the FD-302 for the interview of Special Agent Strozk and cited it specifically to the McCabe memorandum, and actually originally we intended to include those documents with the filing. Prior to the filing, we shared a draft copy of our brief with the Special Counsel’s Office really for two purposes: One was to make sure that we weren’t including anything covered by the protective order, which they objected to our including, which would, perhaps, have to be redacted or filed under seal; and the other reason, frankly, was generally to understand what their reaction might be to particular points in the filing. After that, the Special Counsel’s Office discussed it with us and asked that we consider removing the Strozk 302, and the McCabe memorandum from the brief and to simply cite to them. Given our position as cooperating in the investigation, we acceded to that. We then sent them a draft of the footnotes that we would use to cite to the relevant documents, and originally those footnotes, as drafted by us, named the McCabe memorandum specifically and named the Strozk 302 specifically so that it would be clear to the reader which documents we were talking about. The Special Counsel’s Office requested that we change those citations to simply reference the memorandum and date and the FD-302 and date without the names. We acceded to that request, and I would add would not have acceded to it if in any way we felt it was misleading, but we respected the preferences of the Special Counsel’s Office.

THE COURT: All right. Any objection to what counsel said? Anything that you wish to add to that?

MR. VAN GRACK: Judge, just one point of clarification.

THE COURT: Sure.

MR. VAN GRACK: Which is what we’ve represented to defense counsel in terms of what to and not to include, what we indicated was anything in the Strozk 302 and the McCabe memorandum that they thought was relevant can and should be included in their submissions. What we asked was that they not attach the documents because, as the Court is aware, there are other considerations in the material there that we wanted to be sensitive to.

Look closely: Kelner never actually answers Sullivan’s question, at all. Instead, he blames the decisions surrounding how those materials were cited in Flynn’s memo (which was not Sullivan’s question) on Mueller’s office.

Mueller’s team probably withheld the filings because there are legal proceedings involving both McCabe and Strzok. You can argue that those legal proceedings served as an excuse to hide embarrassing information and you might even be right. But that doesn’t give you permission to just blow off a legitimate question from the judge.

The second one is, given Kelner’s tenure of representation for Flynn, even more egregious.

Sullivan unsurprisingly expressed difficulty squaring the suggestion that there were extenuating circumstances to Flynn’s brazen lies in his FBI interview with Flynn’s claim that he was accepting responsibility for his actions. So the judge asked Kelner why he included them.

THE COURT: The references that I’ve mentioned that appear in your sentencing memorandum raise some concerns on the part of the Court. And my question is, how is raising those contentions about the circumstances under which Mr. Flynn lied consistent with acceptance of responsibility?

MR. KELNER: Your Honor, the principle reason we raised those points in the brief was to attempt to distinguish the two cases in which the Special Counsel’s investigation has resulted in incarceration, the Papadopoulos and Van der Zwaan cases in which the Special Counsel had pointed out as aggravating factors the fact that those defendants had been warned and the fact that those defendants did have counsel and lied anyway, and we felt it was important to identify for the Court that those aggravating circumstances do not exist in this case relevant to sentencing.

Kelner — the guy who signed a FARA registration that he might have faced his own legal consequences for if it weren’t for his client’s guilty plea accepting responsibility for the lies told in the registration himself — completely ignored Flynn’s FARA lies, both in his answer to this question and the brief generally. Flynn not only had benefit of counsel when he told one of the lies he pled guilty, again, to telling yesterday, Flynn had benefit of his, Rob Kelner’s, counsel.

And Kelner is only avoiding consequences for those FARA filings himself because (the existing story goes) his client is such an egregious liar, he has also lied to him, his lawyer, in the past.

That seems like a pretty major aggravating factor.

Much later in the hearing, when Kelner realized his client was facing prison time, he tried to take responsibility for all the things that showed up in that sentencing memo. Rather than leaving well enough alone, Kelner renewed his bullshit claim that what George Papadopoulos and Alex Van Der Zwaan did was worse than lying to the FBI and hiding your paid ties to a frenemy government. That led to Sullivan pointing out why even just Flynn’s lies to the FBI were, because he was in such an important role, worse than those of Mueller’s other false statements defendants.

MR. KELNER: Your Honor, with your indulgence, if I could make a few points.

THE COURT: Sure.

MR. KELNER: First of all, let me make very clear, Your Honor, that the decisions regarding how to frame General Flynn’s sentencing memorandum made by counsel, made by me, made by Mr. Anthony, are entirely ours and really should not and do not diminish in any way General Flynn’s acceptance of responsibility in this case. And I want to make that —

THE COURT: That point is well taken, but you understand why I had to make the inquiry?

MR. KELNER: I do.

THE COURT: Because I’m thinking, this sounds like a backpedaling on the acceptance of responsibility. It was a legitimate area to inquire about. And I don’t want to be too harsh when I say this, but I know you’ll understand.

[snip]

MR. KELNER: Right. We understand the Court’s reason for concern. I just wanted to make very clear the very specific reasons that those sections in the brief were included, to distinguish the Papadopoulos and Van der Zwaan cases, which did result in incarceration, we think are meaningfully distinguishable in many respects.

THE COURT: Let me stop you on that point, because I’m glad you raised that, and I was going to raise this point at some point. We might as well raise it now since you brought up Papadopoulos and Van der Zwaan. The Court’s of the opinion that those two cases aren’t really analogous to this case. I mean, neither one of those individuals was a high-ranking government official who committed a crime while on the premises of and in the West Wing of the White House. And I note that there are other cases that have been cited in the memorandum with respect to other individuals sentenced in 2017, I believe, for 1001 offenses, and the point being made — and I think it’s an absolutely good point — the point being made that no one received a jail sentence. My guess is that not one of those defendants was a high-ranking government official who, while employed by the President of the United States, made false statements to the FBI officers while on the premises of and in the West Wing of the White House. That’s my guess. Now, if I’m wrong, then you can point me to any one or more of those cases. This case is in a category by itself right now, but I understand why you cited them. I appreciate that.

MR. KELNER: Your Honor, we don’t disagree. We recognize that General Flynn served in a high-ranking position, and that is unique and relevant. But I —

THE COURT: Absolutely.

But Kelner took that comment, and kept digging, claiming that Flynn’s cooperation should be worth more because his cooperation was more “consequential” than that of the little people.

MR. KELNER: But I would submit to you a couple of points in response for the Court’s consideration. Number one, because of his high rank and because of his former high office, when it came time to deal with this investigation and to deal with the Special Counsel’s Office, that, too, set a higher standard for him, and he did understand that as a three-star general and a former National Security Advisor, what he did was going to be very consequential for the Special Counsel’s investigation, and very consequential for the nation, so he made decisions early on to remain low profile, not to make regular public statements, as some other people did. That was acknowledged by the Special Counsel’s Office when we did first hear from them, the value of that silence. And then he made the decision publicly and clearly and completely and utterly to cooperate with this investigation, knowing that, because of his high rank, that was going to send a signal to every other potential cooperator and witness in this investigation, and that was consequential, and we appreciate the fact that the Special Counsel memorialized that in his brief. That did make a decision, and that was another kind of high standard that was set for him and that he rose to and met decisively. In addition, there have been other cases —

Sullivan interrupted Kelner at this point, perhaps in an effort to get him to stop damaging his client. It didn’t work though, because having argued that Flynn’s efforts to undo his lies were worth more than that of the little people, Kelner then … brought up David Petraeus.

THE COURT: Can I just stop you right now? Is — How do you wish to proceed? Do you wish to proceed with sentencing today or do you want to defer it?

MR. KELNER: Thank you, Your Honor.

THE COURT: Or are you leading up to that point?

MR. KELNER: I’m leading up to that.

THE COURT: No, that’s fine.

MR. KELNER: Just a bit of indulgence, if I may.

THE COURT: No, no. Go ahead. That’s fine.

MR. KELNER: And let me just finish that last point.

THE COURT: No, no, no. I’m not trying to curtail you. I just wanted to make sure I didn’t miss anything.

MR. KELNER: I’m building up to it. I’m building up to it, Your Honor.

THE COURT: All right.

MR. KELNER: In addition, I would note there have been other high profile cases, one involving a four-star general, General Petraeus.

THE COURT: I don’t agree with that plea agreement, but don’t —

MR. KELNER: It’s a classic —

THE COURT: He pled to a misdemeanor?

Right before Sullivan closed the hearing, he expressed his disapproval of that sentence once again with Kelner, presumably as a warning not to argue Flynn should get light treatment, like Petraeus did, because he’s an important decorated general.

While bringing up the double standard the Obama Administration used with Petraeus is totally fair game, especially in Espionage-charged leak cases (which this is not), this was an instance where Kelner either couldn’t hear or didn’t give a fuck about what the judge had already told him, which is that, having read all the sealed underlying documents, he believes the stuff Flynn lied about “is in a category by itself.”

Honestly, if I were Mike Flynn and I had the money I’d fire Kelner after recent events, because — even if Kelner is not responsible for the ploy that badly backfired (and I suspect he’s not, at least not entirely) — by returning to sentencing with a different lawyer, you can try to start fresh with Sullivan, whom you’ve already pissed off.

But it’s not clear that Flynn can do that.

Because while firing Kelner might permit Flynn to claim he had nothing to do with this disavowal of responsibility that Kelner is now claiming responsibility for, Kelner’s still required to claim that Flynn is responsible for the false statements submitted in a document signed by Kelner back in 2017.

More importantly, according to Kelner, the Kian trial is the only thing left for Flynn to offer as far as cooperation.

Nothing has been held back. That said, it is true that this EDVA case that was indicted yesterday is still pending, and it’s likely, I would think, that General Flynn may be asked to testify in that case. We haven’t been told that, but I think it’s likely, and he’s prepared to testify. And while we believe that the Special Counsel’s Office views his cooperation as having been very largely complete, completed at this point, it is true that there’s this additional modicum of cooperation that he expects to provide in the EDVA case, and for that reason, we are prepared to take Your Honor up on the suggestion of delaying sentencing so that he can eke out the last modicum of cooperation in the EDVA case to be in the best position to argue to the Court the great value of his cooperation.

It seems likely that if Kian goes to trial, it will be Kelner’s testimony, not Flynn’s, that might be most important.

Kelner and Flynn are yoked together, Kelner to the lies Flynn told him to file in that FARA filing, and Flynn to the insubordinate effort to dismiss the importance of Flynn’s lies.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.