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Baloney and Blackjack! A John Pierce Client Complains of Paying Too Much for What Had Been Free

It’s time to check in with John Pierce’s accumulation of January 6 clients.

The other day, the attorney who got fired by Kyle Rittenhouse apparently swapped family members to expand his docket. Pierce withdrew from the case of Jonah Westbury, who is charged, by himself, with trespassing. At virtually the same time, Pierce was making his first appearance in the case of Isaac and Robert Westbury and Aaron James, replacing lawyers for all three. Isaac Westbury and Aaron James are charged with civil disorder and assault, and all three are charged with trespassing. When Rudolph Contreras was sorting all this out a status hearing, Pierce explained, “ I think we’re up to 21, your honor!!!,” like a kid who has gotten his first 21 in blackjack. (h/t MK for the observation) Though unless not all his clients are noticed on the docket, he’s at 20 as of November 1.

Here are those 20, along with the clients who dropped him along the way:

Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention. While Pierce was hospitalized with COVID, Pierce submitted some filings attempting to get Worrell out of jail because he’s not getting medical care; the most recent filing not only thrice misstated what jail Worrell is in, but also admitted he has refused treatment at least five times. On September 24, Alex Stavrou replaced Pierce, and almost immediately found success that Pierce had lacked in getting Judge Royce Lamberth to believe that Worrell is not getting adequate medical treatment in the DC jail.

1. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count), but not much has happened since.

2. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

3. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez was formally charged with trespassing on August 4.

Victoria White: White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10. On September 3, while Pierce was in the hospital with COVID, White told Judge Faruqui she didn’t want Pierce to represent her anymore.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

4. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo, he has some drug-related crimes, and he violated probation in the period before he was arrested. Pierce filed his appearance to represent McGrew on June 16, and he’s currently trying to get McGrew bailed by arguing he wasn’t assaulting cops, he was looking for his mother. Update: Chief Judge Howell denied the effort to reopen detention fairly resoundingly.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, even before Pierce’s bout with COVID halted his relentless acquisition of new Jan 6 clients, Hostetter replaced Pierce, and Hostetter has since gotten permission to represent himself.

5, 6, 7. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They were originally separately charged (LesperanceJames CusickCasey Cusick), all with just trespassing, but have since been joined in one case. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Pierce attempted to get Harrelson out on bail by joining in the bail motion of one of his co-defendants, which may either show how little he knows about defense work or how little he cares. On October 8, Harrelson replaced Pierce with Brad Geyer, and anti-vaxxer who just got slapped down by Amit Mehta for trying to make this case about that, instead of attacking democracy.

MINUTE ORDER denying Defendant KENNETH HARRELSON (10) and KELLY MEGGS’s (8) [476] Motion for Enlargement of Page Limit. Whatever motion Defendants intend to file, the court will stop reading it after page 45. See LCrR 47(e). The court will not allow this case to become a forum for bombastic arguments (“SCOTUS Could Not Have Foreseen the Holocaust,” see ECF No. 476-2, at 1) or propagating fringe views about COVID-19 or vaccinations (“A Human Experiment Unlike Any Other,” “Pseudo-Science Displaces Science,” “Mandatory Everything,” “C19 Conspiracy Structure,” see ECF No. 476-2, at 2). To this court’s knowledge, the D.C. Department of Corrections does not require any person held there to accept a COVID-19 vaccine. If that is the intended basis of Defendants’ motion, they must file a brief of no more than five pages (excluding exhibits) establishing such a mandatory policy before the court will accept a longer filing. Signed by Judge Amit P. Mehta on 11/01/2021.

8. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

9. Nate DeGrave: DeGrave is part of what I’ve called the “disorganized militia” conspiracy, a handful of guys who met online, ordered a bunch of gear from Amazon, and then happened to be at several key places — the East Door of the Capitol and the Senate — during the riot.The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty as part of a cooperation agreement, July 13, Pierce filed a notice of appearance for Nate DeGrave.

10 and 11. Nathaniel Tuck and Kevin Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy. On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged. This means he represents three of the people charged, together but in a conspiracy, for tagging along behind Joe Biggs the day of the riot.

12. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, a felon out on COVID-release accused of macing some cops.

13. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

14. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

15. Anthony Sargent: On September 25, Pierce filed a notice of appearance for Sargent, yet another Florida Proud Boy, this one who tried to breach the North Doors.

16. David Mehaffie: On October 12, dubbed #TunnelCommander by online researchers and charged with orchestrating some of the worst fighting in the Tunnel, David Mehaffie, fired his superb public defender Sabrina Shroff and hired John Pierce.

17: Ronald McAbee: On October 25, Pierce filed a notice of appearance for Ronald McAbee, a former Georgia Sheriff with ties to the Three Percenters charged in a sweeping indictment of those who dragged some cops out of the Tunnel and beat them.

Jonah Westbury: On October 26, Pierce filed a notice of appearance for Jonah Westbury and then, three days later, on October 29, he dropped off the case. I wonder if he just got the wrong Westbury family member?

18, 19, 20: Also on October 26, Pierce filed a notice to replace the existing lawyers for Isaac and Robert Westbury and Aaron James.

As I’ve noted in the past, John Pierce appears to believe he can gaslight his way to liberating these clients — or at least profiting wildly along the way.

Witness the bullshit narrative that one of his clients, Nate DeGrave, has released from jail, as tweeted out by Brad Geyer. Nates the one in this video wearing the all-black armor, and Ronnie Sandlin, the guy in orange, is his alleged co-conspirator. Other rioters tried to restrain DeGrave here.

DeGrave’s letter from jail is a transparent attempt to make false claims to sustain a fairy tale that he and others in the DC jail are 1) being detained merely for protesting and 2) being treated any differently from other people in the DC jail, including some who, because of COVID, have been there even longer than Jan6ers have.

One of his complaints is that he’s being fed baloney sandwiches, which he says is causing him to starve and/or spend money at the commissary.

We are undergoing SEVERE NUTRITIONAL DEFICIENCIES and STARVATION. For breakfast this morning, I received a tray of flavorless paste, two slices of bread, and a slice of bologna. Lunches usually consist of rice and beans, but we’ll get cold chicken/beef patties if we are lucky. For dinner, we are sometimes fed a diet of cheese sandwiches, and bologna and cheese 4 to 5 times per week. Without commissary, people like myself are FORCED TO STARVE.

He also asserts that the around 40 of Jan6ers in the DC jail (which includes at least one and possibly several Black men) are not white supremacists, but then describes the guards as “liberal migrants,” white supremacist code.

And last but not least, we experience racism from many guards on a daily basis, being the ONLY WHITE REPUBLICANS in the entire jail.

The false narrative is has been passed around the jail and to corrections officers that we are “white supremacists” (we are NOT). The inmate population is predominantly black, so we are at risk being here because of this false narrative. The guards are mostly liberal migrants from Africa who have been conditioned to hate us, and hate America. Jan 6ers have been mocked, beaten and ridiculed by guards for singing the National Anthem.

Much of what DeGrave complains about, though, are COVID restrictions that apply equally to other detainees at the jail, but which Jan6ers likely have exacerbated because so many of them are anti-vaxxers.

For the first 120 days in DC’s Gitmo, Jan 6ers experienced DAILY LOCKDOWNS for 23-24 HOURS before being allowed to leave our small 120 sq. ft cell.

[snip]

Masks are WEAPONIZED and used against us, even though we NEVER leave the facility. Officers have walked in with the SOLE INTENTION of needing to write 20-30 disciplinary reports against Jan 6ers, which adversely effects our chances of release and causes loss of privileges, phone time and commissary. Masks need to be covering both the nose and mouth AT ALL TIMES or we are threatened and locked down in our cells. Jan 6ers are always respectful to the employees around us, but C.Os maintain the need to invent reasons for discipline.

[snip]

If it’s a legal visit, we are placed in a 14 day quarantine, with no out of cell time; EVEN IF your attorney is VACCINATED and tests NEGATIVE for Covid.

Visits with friends or family members, for unvaccinated inmates, are NEVER ALLOWED. As a result, many people have skipped critical meetings with their council, and NEVER get an opportunity to see friends or family.

Mostly though, DeGrave is angry that after participating in an attack on the Capitol, including two alleged assaults on cops, he is being detained as a threat to the community and flight risk, which — it turns out — has consequences, including being kicked off social media by private corporations that don’t want to host seditious content.

And the jail MUST PAY for what they are doing to this country’s citizens. As a result of this unlawful detainment the last 9 months, I have lost everything. The successful business I spent 13 years of my life working on, my apartment in Las Vegas, social media accounts with a lifetime of memories…you name it. The government has essentially CANCELLED ME. Not only that, but following the arrest, my best friend of 12 years robbed my apartment, stole my cat, and hacked my personal Instagram with 100,000+ followers.

At the end of the letter comes the grift — the ask for financial help, in part to pay for commissary so he doesn’t have to eat baloney sandwiches, in part for what he deems, “legal expenses.”

If there’s anything you can do to help, I would appreciate anything at all.

Inmates here are being extorted with lack of nutrition, forcing me to spend most of what’s left on commissary which I can no longer afford. I need desperate help with my legal expenses and just help staying alive in here with commissary and all the expenses I still have on the outside as my livelihood and life has been stripped away from me. Thank you for any her you can afford, even if it is a few dollars it goes a long way in here.

It’s possible what DeGrave really wants is funding to profit off this grift — that has been the case in the past with John Pierce’s other indentured defendants.

But since DeGrave is suggesting that he needs money for his legal expenses — suggesting he needs money to pay John Pierce — it’s worth noting that DeGrave (like an growing number of Pierce’s clients) had good public defenders (like Shroff) or CJA counsel, like Joanne Slaight, who represented DeGrave from when he was arrested in January until Pierce took over in July. Slaight’s the one, not Pierce, who made a sustained effort to get DeGrave released on bail. Pierce has done little since he took over (hampered, no doubt, by his bout with COVID and the fact that one of his key assistants is not permitted to practice law). He has joined Ronnie Sandlin’s challenge to the application of 1512, but his efforts are among the more frivolous in what is otherwise a legitimate challenge to this application, arguing as it does that the entire vote certification is unconstitutional and that the means by which “corruptly” has been adjudged is “legal sophistry.”

But the solemn and formal proceedings relied upon by the government are on their face unconstitutional and following through with those proceedings was an unlawful act.

[snip]

A system of laws cannot function on the government’s proffered mechanism for distinguishing lawful from unlawful obstruction in this circumstance — “The jury will figure it out.” It is legal sophistry to claim that the defects in the statute raised by this motion will be solved by this Court fashioning instructions for a lay jury to distinguish “corrupt” obstruction from “noncorrupt” obstruction.

In other words, Pierce appears to have done more to encourage DeGrave to disseminate false claims about his own actions than what the taxpayer funded lawyer who preceded him did. And DeGrave at least claims that gaslighting serves, in part, to pay Pierce.

Felipe Marquez’ Plugged-In Misdemeanor Guilty Plea

Seven January 6 defendants are known to have pled guilty on Friday:

  • (Reportedly, though it hasn’t been docketed yet) Terry Brown, the last of a group of people arrested in the Capitol Visitor’s Center the day of the riot to plead out
  • Brandon Harrison and Douglas Wangler, who traveled to DC from Illinois together and, after Trump’s rally, walked to the Capitol and entered the East door after the Oath Keepers had already done so; they saw a pile of wood on the floor when they entered
  • Brandon and Stephanie Miller, an Ohio couple who bragged about witnessing history on Facebook
  • Cleveland Meredith Jr, who showed up — armed, but late — to insurrection but made credible threats against Nancy Pelosi (and did something else that remains sealed)
  • Felipe Marquez, who drove his Tesla Model 3 from Miami and claimed while inside the Capitol that, “we only broke some windows”

The Meredith plea — the only one that wasn’t a misdemeanor trespassing plea — was pretty interesting because his prosecutors still haven’t revealed the substance of some sealed filings that will be taken into consideration at sentencing. Plus, Judge Amy Berman Jackson, who was threatened by Roger Stone and some Proud Boys two years before they teamed up to set off an attack on the Capitol, seemed unimpressed with Meredith’s claims that his threats against Pelosi weren’t all that serious.

But the Marquez plea may be more interesting over time. At the very least, that’s because he may mark a decision by DOJ to let edge obstruction defendants plead down to 18 USC 1752, the more serious of the two misdemeanor trespassing charges.

As I’ve laid out repeatedly, DOJ has used 18 USC 1512(c)(2), part of the crime of obstruction, to charge those who allegedly expressed the clear intent to prevent the vote certification with a felony. Upwards of 200 people, total, have been charged with obstruction, including Marquez. But among those charged with obstruction, there’s a great range of actions taken on January 6. Those charged include those who participated in a conspiracy — like Graydon Young and Josiah Colt, Jacob Chansley, who left ominous comments for Mike Pence on his dais seat and blew off repeated orders to vacate the Senate Chamber, and Paul Hodgkins, who brought his Trump flag to the Senate floor but left when the cops instructed him to.

I laid out here how Hodgkins, after he was the first to plead guilty, was sentenced to 8 months in prison after getting a three level enhancement for significantly obstructing the vote certification. But since that happened, at least ten different defendants have challenged this application of obstruction, posing difficult decisions for a number of judges.

Indeed, in the last several days, a number of defendants charged with obstruction have explicitly waived Speedy Trial rights to await the outcome of these challenges. That’s going to create a backlog in the already enormous logjam of January 6 defendants.

So I wonder whether DOJ will begin let the edge 1512 cases plead down to 1752. Particularly given judges’ apparent willingness to jail the misdemeanor defendants, for defendants not given a “significant obstruction” enhancement like Hodgkins got, the sentencing guideline is not that different, with up to a year available under 1752 (and probation after that), versus a range of 8 to 14 months on obstruction (that in reality might be closer to 3 to 8 months). The primary (but nevertheless significant) difference would be the felony conviction.

To be clear, Marquez is not the first to plead down like this. Eliel Rosa pled to the less serious trespass charge, 40 USC 5104 after being charged with obstruction, but there may have been evidentiary reasons DOJ agreed to do that, and as an immigrant from Brazil, he risks deportation after his sentence in any case. Karl Dresch was charged with obstruction but pled to 5104 after serving six months in pre-trial confinement. Kevin Cordon, who was charged with obstruction but pled guilty at the same time as his brother — who was charged only with trespassing — pled to 1752 instead of obstruction, just like Marquez did.

In other words, in cases where there are other circumstances that make such a plea worthwhile to DOJ, they’re certainly willing to consider it.

Still, it’s possible that Marquez represents a shift on DOJ’s part to do that for more defendants, as part of an effort to avoid a big backlog pending the review of the 1512 charge.

Or, maybe not.

There were several other details of Marquez’ plea hearing of interest. The hearing started by talking about some kind of pretrial violation (possibly some kind of non-arrest run-in with law enforcement), which led to two new conditions being added to Marquez’s release, a mental health evaluation and a specific requirement to alert the government of any contact with law enforcement. That’s not how plea hearings usually start, but AUSA Jeffrey Nestler reaffirmed that DOJ wanted to go forward anyway. Judge Rudolph Contreras even asked whether the request for mental health evaluation raised questions about Marquez’ competency to plead guilty, though neither his attorney, Cara Halverson, nor Nestler, had any concerns about that.

Nestler, by the way, is one of the key prosecutors on the omnibus Oath Keeper case, and ably defended DOJ’s application of obstruction in that case in a hearing on Wednesday. Aside from that large group and cooperating Oath Keeper witness Caleb Berry, the only other January 6 case, besides Marquez’, that he is prosecuting is that of Guy Reffitt, who has ties to the 3%ers.

In addition to the oddities in Marquez’ plea hearing, there’s something not in his plea agreement that is standard boilerplate for all the plea agreements thus far: a cooperation paragraph. That paragraph is not a full cooperation agreement; rather, it simply requires the defendant to agree to be debriefed by the FBI. Here’s how it appears in Cordon’s plea agreement down from obstruction to 1752.

Your client agrees to allow law enforcement agents to review any social media accounts operated by your client for statements and postings in and around January 6, 2021, and conduct an interview of your client regarding the events in and around January 6, 2021 prior to sentencing.

Its absence suggests that Marquez has already been debriefed. Indeed, an April motion to continue the case described that the evidence against Marquez included, “social media data, cell phone extraction data, as well as custodial interview files,” suggesting he was interviewed on his arrest.

That Marquez may have already provided truthful information is of interest because he spent part of the riot in Jeff Merkley’s office. His statement of offense describes his actions there obliquely:

While inside the Capitol, Marquez entered the private “hideaway” office of Senator Merkley where he sat at a conference table with other rioters.

His arrest affidavit describes a video Marquez posted to Snapchat from his time there.

3:45 to 4:11 – This clip is from inside a conference room.2 Several people are seated and standing around a mahogany table. Some people say, “No stealing; don’t steal anything.” At 4:02, a hand is visible, holding a light-tan colored vape pen similar to the one MARQUEZ was holding in the car in the clip from 0:54 to 1:54. At 4:04, someone pushes over a table lamp and says, “Why would I want to steal this bullshit.”

4:11 to 4:20 (end) – In this clip MARQUEZ turns the camera lens to film himself. He is wearing a red “KEEP AMERICA GREAT” hat and has a yellow gaiter around his neck, similar to what he was wearing in the earlier clip from 0:54 to 1:54. MARQUEZ appears to still be indoors, with a distinctive blue piece of artwork – the same as seen in Senator Merkley’s hideaway office – on the wall behind him. This is a screenshot of MARQUEZ’s face from the video:

2 Based upon conversations with representatives of the United States Capitol Police, the conference room in which MARQUEZ is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in MARQUEZ’s Snapchat video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36 pm, documenting some of the damage to his office.

Still, none of these descriptions reveals what Marquez might have seen (and subsequently shared) while in Merkley’s office.

Presumably partly because there’s little to no security footage of what went down, the investigation into what happened in Merkley’s office is one of the most interesting subplots of the investigation. There have been a number of trespassers who seem to have been arrested just to get their footage of what happened.  There’s a defendant who has never been charged who was, nevertheless, given discovery on the laptop that got stolen from Merkley’s office. And in the last few weeks, Brandon Fellows (who like Marquez has been charged with just obstruction but spent time in Merkley’s office) got a CIPA notice, meaning the government wants to use classified evidence against him.

In short, we simply don’t know. There’s something interesting about this plea. But it’s unclear what that is.

Emmet Sullivan’s Revenge: Rupert Murdoch’s Rag Calls Mike Flynn’s Actions “Tantamount to Treason”

Once upon a time, Trump loyalists were thrilled that Judge Emmet Sullivan had gotten Mike Flynn’s case after Rudolph Contreras recused. They were sure that a judge who had fearlessly taken on prosecutorial abuse in the past would find prosecutorial abuse in the sweetheart False Statements charge that General Flynn got in lieu of a Foreign Agent charge.

In the days before Flynn’s scheduled sentencing two years ago, for example, Rupert Murdoch employee Kim Strassel stated with confidence that something had concerned the judge when he asked to see the documents Flynn claimed suggested misconduct.

It’s clear that something has concerned the judge—who likely sees obvious parallels to the Stevens case. The media was predicting a quick ruling in the Flynn case. Instead, Judge Sullivan issued new orders Wednesday, demanding to see for himself the McCabe memo and the Flynn 302. He also ordered the special counsel to hand over by Friday any other documents relevant to the Flynn-FBI meeting.

Given his history with the FBI, the judge may also have some questions about the curious date on the Flynn 302—Aug. 22, 2017, seven months after the interview. Texts from Mr. Strzok and testimony from Mr. Comey both suggest the 302 was written long before then. Was the 302 edited in the interim? If so, by whom, and at whose direction? FBI officials initially testified to Congress that the agents did not think Mr. Flynn had lied.

Judges have the ability to reject plea deals and require a prosecutor to make a case at trial. The criminal-justice system isn’t only about holding defendants accountable; trials also provide oversight of investigators and their tactics. And judges are not obliged to follow prosecutors’ sentencing recommendations.

Then Sullivan got questions on those issues answered and raised more pressing questions — such as what charges Flynn avoided with his plea deal.

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

MR. VAN GRACK: The government did not consider — I shouldn’t say — I shouldn’t say did not consider, but in terms of the evidence that the government had at the time, that was not something that we were considering in terms of charging the defendant.

THE COURT: All right. Hypothetically, could he have been charged with treason?

MR. VAN GRACK: Your Honor, I want to be careful what I represent.

THE COURT: Sure.

MR. VAN GRACK: And not having that information in front of me and because it’s such a serious question, I’m hesitant to answer it, especially because I think it’s different than asking if he could be charged under FARA or if there were other 1001 violations, for example. [my emphasis]

Those comments fed attacks from Fox News personalities in the two years that followed and Judge Sullivan became a more pointed target of employees of the News Corp empire. After he refused to immediately dismiss the prosecution against Mike Flynn, Fox personalities accused him of bias.

Sullivan earned the ire of Fox News hosts who have been arguing that Flynn’s prosecution was the canary in the coal mine of a coup against President Trump.

Former New York state judge Jeanine Pirro said Wednesday night that Sullivan should “recuse himself” from the case, adding “he should be embarrassed to put a robe on.”

“And now what he’s doing is he’s poisoning the 2020 election by trying to make it look like [Attorney General] Bill Barr,” she said. “He’s trying to destroy the whole thing so that Barr looks like the villain here.”

Sean Hannity offered an extensive broadside against Sullivan later in Fox’s prime-time programming.

“Mr. Sullivan, what part of General Flynn being ambushed and set up by [former FBI deputy director Andrew] McCabe and [former FBI director James] Comey don’t you understand?” Hannity said Wednesday night, accusing Sullivan of taking a “clearly political stand.”

He added: “You botched this from Day One, and you had a bias from Day One,” he seethed. “You reek of ignorance, you reek of political bias!”

After Neomi Rao ordered Judge Sullivan to rubber stamp Flynn’s exoneration, for example, Greg Jarrett included it in a long attack on the judge’s insistence on acting like a judge.

Again, Sullivan balked. Something was amiss. At this point, it became clear that Sullivan was not a neutral or objective jurist dedicated to following the law. He was a rogue judge with an agenda. His decisions reeked of dead fish.

[snip]

It’s anyone’s guess whether Sullivan will grudgingly admit that he was wrong — flagrantly so. After all, this is the same guy who falsely and preposterously accused Flynn of “treason” during a previous court hearing, then recanted when he realized (with prompting) that what he’d said was not just dumb, but anathema to the law governing treason.

All of this leads me to suspect that this judge’s grasp of the law is embarrassingly feeble. His ability to recognize his own disqualifying bias is shamefully absent.

In a piece declaring that “Mr. Flynn has finally received justice” earlier this month (after Mike Flynn first called for martial law), Strassel complained that Sullivan was churlish for noting that Flynn’s guilty plea, as a legal issue, remained intact.

Judge Sullivan finally, belatedly, churlishly dismissed the Flynn case as moot on Tuesday, two weeks after President Trump pardoned the former national security adviser. But the self-important Judge Sullivan couldn’t resist delivering a parting “verdict.” He issued a 43-page opinion in which he all but declared Mr. Flynn guilty of lying and perjury and the entire Justice Department corrupt.

But now the boss has weighed in. In an editorial begging Trump to accept his loss and work to save the Senate today, the NY Post describes Sidney Powell as a crazy person and Flynn’s call for martial law “tantamount to treason.”

Sidney Powell is a crazy person. Michael Flynn suggesting martial law is tantamount to treason. It is shameful.

To be clear, Flynn’s call for martial law wasn’t treason, just as secretly working for Turkey while serving as Trump’s top national security advisor wasn’t either.

But both Judge Sullivan and Rupert Murdoch appear to agree: Mike Flynn sold out this country.

Kraken Clemency: Did Trump Issue the Flynn Pardon Wednesday To Avoid Potential Conflict with Sidney Powell’s Batshittery??

I have to admit: given the certainty that Trump was going to pardon Mike Flynn eventually, I’m really grateful he did it on Wednesday, because it allowed for a truly epic headline, “Trump Pardons an Undisclosed Agent of Turkey Along with a Thanksgiving Bird.”

But I’m really mystified by the timing of it.

After all, there was still an outside chance that Judge Emmet Sullivan would agree to DOJ’s motion to dismiss, which would have eliminated Flynn’s guilty verdict more convincingly than this pardon. And, given that the pardon seems to exist only in Tweet form as of right now, Sullivan could still file his ruling, knowing that he’d be getting notice of a pardon sometime next week. Alternately, the early pardon could give Sullivan the opportunity to craft his other decisions, such as regarding Flynn’s motion to withdraw his plea, in ways that might have legal repercussions for Flynn and his son. So it seems risky to pardon Flynn before Sullivan rules.

I can think of several possible reasons for the timing. But the most intriguing is a tie between Sidney Powell’s efforts to sustain Trump’s most baseless conspiracy theories without any potential conflict for Flynn.

The upcoming Sullivan decision

Depending on how Trump words the pardon, the timing of this might still be an effort to pre-empt Sullivan’s decision. If Trump were to describe the pardon as all crimes Flynn committed from July 2016 to the present (meaning Wednesday), and if courts accepted that unspecific language, then it would cover not just Flynn’s lies to the FBI, but also his efforts to hide that he was an Agent of Turkey and his sworn materially conflicting statements before Judges Rudolph Contreras and Sullivan as well as the grand jury.

Or to put it another way, this may be an effort to write an even more abusive pardon in a way that few will notice.

Though I’ll notice.

The upcoming BuzzFeed FOIA release

On Tuesday, BuzzFeed will get another big drop of FBI 302s from the Mueller investigation. According to FOIA terrorist Jason Leopold, DOJ has not told them whether the drop will include the Flynn 302s, but does claim this will be the last release (which would seem to suggest it has to include the Flynn 302s).

Almost year ago, the government provided Flynn with his 302s, which make up 761 pages. They subsequently said that his cooperation with Mueller was not substantial and raised questions about his candor even after his initial interview. That’s consistent with Flynn’s own description of the early proffers, given that his Covington lawyers tried to get him back on track to cooperate after the first one.

Releasing the warrants in Flynn’s case was damning enough (though as a result of the timing, almost no one has scrutinized them closely). But these 302s may prove still more damning (not least because they should provide additional details of a meeting where Trump discussed reaching out to WikiLeaks after the Podesta emails dropped). They also may show that Flynn continued to lie to protect the President even while he was pretending to cooperate.

So Trump may have been tipped that if he wanted to limit the outrage over this pardon, he should get it done before the 302s come out on Tuesday, if indeed they will come out.

The conflict between Sidney Powell TV election lawyer and Sidney Powell TV defense attorney

Finally, I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In Letter Confirming DOJ Altered Peter Strzok’s Notes, His Lawyer Identifies Additional Privacy Act Violations

Among a slew of last minute documents submitted in advance of today’s hearing in the Mike Flynn case, Peter Strzok’s lawyer, Aitan Goelman, confirmed what I laid out here and here: DOJ altered some of the exhibits submitted in their effort to blow up Flynn’s prosecution.

Some of Mr. Strzok’s notes included in this attachment appear to have been altered. On at least two occasions, there were handwritten additions, not written by Mr. Strzok, inserting dates, apparently designed to indicate the date or dates on which the notes were written. On at least one occasion, the date added is wrong and could be read to suggest that a meeting at the White House happened before it actually did.

Goelman included those both altered records pertaining to Strzok (there may be one related to Andrew McCabe as well), including the one that shows someone wanted to implicate Joe Biden in all this.

That may not be the most important thing Goelman established, however.

Among the things DOJ released the other night was yet another version of the Strzok and Lisa Page texts. When she sent them to Flynn’s lawyers, Jocelyn Ballantine admitted the relevant texts had been provided to Flynn in 2018, before he allocuted his guilty plea a second time.

We are also providing you with additional text messages between former DAD Strzok and Lisa Page (23516-23540). As you know, some of these messages were originally made available to Flynn’s former attorneys on March 13, 2018 through a publicly available link to a Senate webpage. On June 24, 2018, the government provided a link to a second website that contained additional text messages. In an abundance of caution, we are providing you additional text messages in this production; please note that purely personal messages have been deleted from this production.

DOJ seems to have re-released the texts in an effort knit together unrelated actions to suggest they all related to Mike Flynn. Among the texts included in this release, purportedly in support of blowing up Mike Flynn’s prosecution, I can identify texts pertaining to:

  • The investigation into Russia’s attack on the US
  • The Mid-Year Exam investigation into Hillary’s server
  • The general Crossfire Hurricane investigation
  • Extensive efforts to ensure the Crossfire Hurricane investigation remained secret
  • Efforts to ensure that Obama officials didn’t politicize the Mike Flynn intercepts
  • Specific Crossfire Hurricane sub-investigations, including substantial threads pertaining to Carter Page and George Papadopoulos
  • The opening of the Jeff Sessions false statements investigation
  • The bureaucratic set-up of the Mueller investigation
  • References to Kevin Clinesmith (and possibly some references to other Kevins)
  • Substantive critiques of Donald Trump (for example, pertaining to his desire to blow up NATO)
  • Discussions of Trump sharing highly classified Israeli intelligence with the Russians
  • Proactive ethical discussions about how to deal with the appointment of Rudolph Contreras, whom Strzok was friends with, to the FISA Court
  • Leak investigations, both into stories pertaining to Flynn or Trump and stories not related to Trump
  • Unrelated FISA applications
  • 702 reauthorization
  • Apparently unrelated cases, including things like CFIUS reviews

There are long swaths with half the side of the conversation left out, hiding what are clear changes of topic.

Then there are personal details, like talks about showers and anniversaries, as well as some emotional chatter and one declaration of love.

That makes Ballantine’s claim that, “purely personal messages have been deleted from this production,” utterly damning, particularly given the timing, September 23, and the fact that unlike past productions, this was not noticed to the docket in real time.

“Did your anniversary go ok? I don’t really want a lot of deta[]” is by any sane measure a purely personal message. It was not deleted or redacted from this production.

What DOJ decided to do, just days before a decision in the parallel lawsuits Strzok and Page have against DOJ alleging a violation of the Privacy Act for the release of personal information, was to release more personal information, information that had — in the past, under an earlier purported ethics review of what was releasable — been deemed personal information.

DOJ knit together a bunch of texts that DOJ admits were already public before Flynn allocuted his guilty plea a second time, but threw in yet more personal texts.

And then, on September 25, Amy Berman Jackson ruled that Page and Strzok should both get discovery to prove their Privacy Act (and in Strzok’s case, other claims) cases. That makes all of this — all the decisions that led up to to the release of these texts — discoverable in what I assume will be an expanded Privacy Act lawsuit.

It’s unclear what malicious thinking led DOJ to include more texts attempting to humiliate Strzok and Page (even while providing a slew of other information making it clear that Strzok did not have it in for Flynn). But they just likely made this entire process subject to discovery in a lawsuit overseen by Amy Berman Jackson.

“In truth, I never lied;” Mike Flynn’s Materially Conflicting Sworn Statements

Amid the discussions of what may happen in the DC Circuit’s review of Mike Flynn’s petition for a writ of mandamus, Judge Emmet Sullivan’s instruction to amicus John Gleeson to review whether Flynn should be held in criminal contempt for perjury has been lost. Indeed, the DC Circuit did not include that part of Sullivan’s order in its order to Sullivan to address Flynn’s petition; it addressed only the question of whether Sullivan must grant the government’s motion to dismiss.

Because few people understand the full scope of Flynn’s conflicting sworn statements — not just before Sullivan but also before the grand jury — I’m reposting and elaborating on that list.

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that:
    • “From the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,”
    • He and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate)
    • “For the most part” “all of that work product [was] about Gulen”
    • When asked if he knew of any work product that didn’t relate to Gulen, Flynn answered, “I don’t think there was anything that we had done that had anything to do with, you know, anything else like business climates or stuff like that”
    • He was not aware of “any work done on researching the state of the business climate in Turkey”
    • He was not aware of “any meetings held with U.S. businesses or business associations”
    • He was not aware of “any work done regarding business opportunities and investment in Turkey”
    • He and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior”
  • January 29, 2020: Mike Flynn submitted a sworn declaration. Among the assertions he made were:
    • “On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI. I am innocent of this crime.”
    • “I gave [Covington] the information they requested and answered their questions truthfully.”
    • “I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak nor do I remember if we discussed the details of a UN vote on Israel.”
    • “My relationship with Covington disintegrated soon thereafter.” [After second proffer session.]
    • “I did not believe I had lied in my White House interview with the FBI agents.”
    • “In the preceding months leading up to this moment [when he agreed to the plea deal], I had read articles and heard rumors that the agents did not believe that I had lied.”
    • “It was well after I pled guilty on December 1, 2017, that I heard or read that the agents had stated that they did not believe that I had lied during the January 24, 2017, White House interview.”
    • “I agreed to plead guilty that next day, December 1, 2017, because of the intense pressure from the Special Counsel’s Office, which included a threat to indict my son, Michael, and the lack of crucial information from my counsel.”
    • “My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace.”
    • “Regretfully I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty.”
    • “In truth, I never lied.”

Three comments about this. First, Flynn has suggested — and his supporters have focused on — that prosecutors promised that Jr wouldn’t be prosecuted. Flynn’s declaration actually stops short of saying prosecutors made this promise.

Second, note that Flynn’s sworn statement conflicts with statements he made to the FBI after his January 24, 2017 interview. For example, his claim not to remember his calls with Kislyak conflicts with 302s cited in the Mueller Report that describe what went on in the calls (though the report cites heavily, though not exclusively, to the one from November 17, 2017, which is the one in which Flynn claims he just repeated what Covington told him to say).

Finally, while Flynn didn’t back off his admission he lied in his FARA filing specifically in his declaration, he does claim that he answered Covington’s answers about his work for Turkey truthfully. In notes that Flynn himself already made public, however, it’s clear he did not, for example where he told his attorneys that the op-ed he published on election day was done for the campaign’s benefit, not Turkey’s.

And his attorneys made much of the fact that he claimed the project started off as being about business climate, which conflicts with his claim that the project was always about Gulen.

DOJ has 600 more pages from Covington (500 pages of evidence and 100 pages of declarations from its lawyers) disputing the claims Flynn has made about him. The timing of DOJ’s motion to dismiss strongly suggests Flynn’s boosters knew they had to act before that Covington material became public. But even without that, Flynn has already provided evidence that Flynn lies to his attorneys resulted in a false FARA filing.

I have no idea whether this will even play into filings at DC Circuit. But unless DC Circuit moves Flynn’s case to another judge (and possibly even then), the case for perjury is still out there in multiple sworn filings.

The Four Ways Trump Can Ensure Mike Flynn Avoids Accountability for His Lies

In this post, I suggested that Billy Barr and Sidney Powell have worked together to pursue about four different ways to ensure that Mike Flynn does no prison time (though, it’s worth remembering, that Robert Mueller recommended probation for Flynn, and it’s only Flynn’s own efforts to undermine Mueller’s authority that have exposed him to real prison time). I also said that most people engaged in the debate over Flynn’s status show little to no familiarity with the status of his case. I’d like to lay out that status here.

Flynn’s sworn statements

First, it’s important to know the substance of the various statements Mike Flynn has made and how they conflict, to understand how risky his current gambit would be if not for the personal efforts of the Attorney General. All these statements are at issue:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.” Flynn claims he forgot about the substance of his conversations with the Russian Ambassador, rather than lied about them.

The substance of these sworn statements are important for several reasons. First, it is virtually impossible to look at these four sworn statements and conclude that he did not lie in at least one of them. In the course of challenging his guilty pleas, he has made statements that may amount to perjury, perjury to judges rather than false statements to Peter Strzok.

In addition, these statements severely constrain both of Flynn’s current legal attempts to renege on his guilty pleas, because he has already sworn that the things he now is claiming were not true.

They also change the landscape of possibilities if one of them — a motion to withdraw his plea — were successful, because there are a number of witnesses who have already testified that his statements were false for some of the statements that he twice pled were false. For example, several of Trump’s aides told Mueller they recognized Flynn lied in his FBI interview. Others told Mueller he was lying to them. KT McFarland and Jared Kushner testified about the UN ploy. And a number of people changed their testimony after Flynn pled, making it more clear that they were all adhering to a cover story. In short, while many people believe that if DOJ had to prosecute Flynn for his original false statements, it would pit him (with little credibility) against Strzok (with severely damaged credibility), that doesn’t account for the other witnesses against him who, if they altered their testimony, would put themselves at risk for false statements charges.

The four efforts to reverse Flynn’s guilty pleas

By my read, there are four efforts underway to reverse Flynn’s guilty pleas. Few people realize that Flynn has two separate legal challenges going on.

Motion to withdraw his guilty plea

The first is a motion that argues that Covington & Burling, the white shoe law firm that (at least per public records) gave Flynn 30 months of representation they never got paid for, provided inadequate legal representation in at least three matters:

  • Covington wrote the FARA filing that posed the biggest legal risk for Flynn when he pled guilty in 2017, and so had an incentive to advise him to plead guilty so as to avoid any exposure themselves for presenting a deceitful filing to DOJ.
  • Covington did not provide Flynn adequate notice of the conflict this presented.
  • Covington also withheld information from Flynn — such as that the FBI Agents who interviewed him thought he was a convincing liar — that he now claims would have led him not to plead guilty had he known it.

Even in the public record, there’s evidence these claims are not true. For example, notes taken by Covington that Flynn himself released record him telling them things that made it into the FARA filing but which even his grand jury testimony he said were not true. In other words, both materials Flynn has himself released and his own sworn statement undermine this claim.

Furthermore, Flynn’s own filings show other holes in Flynn’s argument, such as at least one additional warning from Covington about any conflict, along with evidence Covington found an unconflicted attorney and suggested Flynn consult with that lawyer about their representation.

But since Flynn filed this motion, Covington has turned over 500 additional pages of evidence to prove their competence, as well as 100 pages of sworn declarations. Sidney Powell has made aggressive claims that damage Covington’s reputation, they appear to have gotten paid nothing for representing Flynn, and Judge Emmet Sullivan showed some interest in putting everyone under oath to fight this out. So it’s possible that this will lead to a spectacular hearing where very reputable Republican lawyers will have an opportunity to disclose how much Flynn lied to them.

That said, Sullivan seems to be getting justifiably cranky with Covington because they keep finding documents they didn’t turn over to Flynn last year. He ordered the firm to file a notice of compliance indicating they had researched all their files to make sure they had gotten everything, which is due at noon today.

If Flynn succeeded in withdrawing his guilty plea without incurring perjury charges for his two plea allocutions and his grand jury testimony, he still could be prosecuted. While it’s unlikely (unless this whole effort extends into a Joe Biden administration), that prosecution could include a Foreign Agent 951 claim on top of the FARA claim and it could include Flynn’s son.

On May 8, the government will provide a status update or proposed briefing schedule on Motion to Withdraw. Most likely, this will be an anodyne filing. But it’s possible we’ll get a summary of what Covington included in the 600 pages they turned over, which may be very damaging to Flynn’s case.

Motion to dismiss for prosecutorial misconduct

In addition to the motion to withdraw, Flynn also is asking Judge Sullivan to dismiss his case for prosecutorial misconduct. Effectively, Flynn is arguing that mean FBI agents had it in for Mike Flynn and so ambushed the 30 year intelligence veteran on January 24, 2017, and tricked him into lying so they could either get him fired or prosecute him.

Because Powell asked Sullivan to dismiss Flynn’s case in a motion that purported to be a Brady challenge last fall, Judge Sullivan has already written a meticulous 92-page opinion denying these arguments, explicitly distinguishing what happened to Flynn from what happened to Ted Stevens. Powell even had to and did say, in this motion to dismiss, something akin to, “no, even though I already asked you to dismiss this case, that wasn’t my motion, this is.” Flynn’s original motion submitted in January, however, added nothing new. Rather, it asked Sullivan to dismiss the case against Flynn because FBI’s FISA applications against Carter Page were problematic.

Since then, Flynn has used the serial receipt of documents turned over in conjunction with Jeffrey Jensen’s review of his case to claim new evidence of misconduct. Those documents include proof that, contrary to Flynn’s claims, the promise that by pleading guilty Flynn would spare his son criminal investigation was not a promise. It includes notes on how the FBI prepared for the interview with Flynn, notes that — because they reflect actions not taken — are probably not directly relevant to his case anyway. Nevertheless, those notes are what Flynn’s backers point to to claim that the FBI thought it would be obvious that someone who had secretly called up the country that just attacked America and convinced them not to worry about the punishment for the attack could not serve as National Security Advisor. Finally, those documents include proof that, after considering whether some things Flynn had done in the past meant he could be a Russian threat, the FBI concluded they did not, and only after that discovered the call transcripts with Sergey Kislyak showing something far more concerning. Powell released these filings with no substantive argument about how they prove her case, using them instead to fire up Flynn’s backers who show little understanding of the case.

It’s always a fool’s errand to predict how Judge Sullivan will feel about such things. But this last filing actually dramatically undercuts a claim that Powell has made from the start, that the effort to “get” her client arose out of personal animus, and continued in unrelenting fashion until the FBI trapped Flynn in a perjury trap. If the FBI were motived by animus, as alleged, then they would never have moved to close the case against him. The only reason they did not is because they found evidence he had secretly called up the country that just attacked us and told them not to worry about the punishment. That is, the FBI reviewed some allegations against Flynn, found them wanting (which is proof that they were basing their decisions on the evidence, not any negative views about Flynn), and only after that did he give them real reason to be concerned, something totally unrelated to many of the allegations Powell based her original complaints on, that they continued the prosecution. (Flynn’s backers often forget that the FARA investigation had already started by this point, which was an urgent concern of its own right.)

In any case, those serial releases had been serving to keep the frothy right chasing one after another shiny object. But last week Judge Sullivan called a halt to them, ordering Powell to hold all her new exhibits until the government is done turning them over.

On May 11, the government will file a response to whatever Flynn’s motion to dismiss consists of by that time, with Flynn’s reply due May 18.

The Jeffrey Jensen review of Flynn’s prosecution

Approximately the week before Flynn filed his motion to dismiss, Barr appointed the St. Louis US Attorney, Jeffrey Jensen, to review Flynn’s prosecution.

It’s hard to overstate how abusive this was, on Barr’s part. When Barr did this, Judge Sullivan had already ruled there was no reason to dismiss the prosecution, and ruled that the items now being produced were not discoverable under Brady. What the review has done, thus far, has been to provide Flynn with documents that someone — presumably Derek Harvey — had reviewed, so he can obtain stuff even Judge Sullivan ruled he was never entitled to receive.

Moreover, Barr did this even though he had already appointed John Durham to review what has come to incorporate Flynn’s prosecution under a criminal standard. Durham could obtain all this evidence himself as part of his investigation, but he can only do something with it if it is evidence of a crime. Effectively, Barr has asked two different prosecutors to review this prosecution, the latter effort of which came after a judge had already ruled against it.

That said, given the prospect that litigation over Covington’s supposed incompetence may be highly damning to Flynn’s reputation, the Jensen review provides Barr with another option. He can use it as an excuse to order prosecutors to withdraw their opposition to Flynn’s motion to dismiss. It’s unclear whether Jensen has found anything to merit that yet, and Jensen appears to be engaging in analysis that might undercut where Barr wants to go with this (though given how closely Deputy Attorney General Jeffrey Rosen’s office is involved in this, I doubt that will happen). That said, Barr’s treatment of the Mueller Report proves that he has no compunction about claiming that a prosecutor’s conclusions say one thing when in fact they say something very different. And so at any moment, Barr may order prosecutors to effectively wipe away the prosecution of General Flynn.

One tea leaf, at least thus far, is that Brandon Van Grack has not withdrawn from Flynn’s case. Had he been referred for misconduct, you would expect that to show up in the docket.

The inevitable pardon

These efforts — Flynn’s effort to withdraw his guilty plea, his effort to get his prosecution thrown out for misconduct, and DOJ’s effort to find some basis to dismiss it on their own — are all ways of eliminating the Flynn prosecution in ways that would help Trump’s claim of victimization. They would provide a way for Trump to pay back Flynn’s silence about his own role in the sanctions call with Kislyak without having to issue a pardon to do so.

But those efforts can only do so much by themselves, particularly given the number of conflicting sworn statements Flynn has made.

Assuming that Barr would eventually move to withdraw DOJ’s opposition to Flynn’s motion to dismiss, it might have the effect of mooting the motion to withdraw Flynn’s guilty plea as well, effectively wiping out the existing charges against Flynn. But only if Sullivan were to accept the dismissal of the two pleas; it would be at his discretion.

And Judge Sullivan could, on his own, deem that Flynn has lied to him (and Judge Rudolph Contreras) under oath. There is literally no way to reconcile the conflicts in Flynn’s sworn statements; some of them must be false. And Sullivan has the authority to — and the temperament to — appoint a special prosecutor to investigate and prosecute Flynn for perjury. That’s effectively what Sullivan did in response to the misconduct against Ted Stevens.

As noted above: it’s a fool’s errand to try to predict how Judge Sullivan will respond to stuff like this. It’s unclear whether he will be impressed with the new evidence Powell is floating. But it is possible he remains as fed up as he clearly was in December, and as a judge he does have means of doing something about it.

But as President, Trump always has the power of pardon, and there is zero reason to believe he won’t be using it aggressively on November 4, regardless of the outcome. Indeed, if Trump were to pardon Flynn for perjuring himself before several judges, it would be the exact equivalent of what he did for Joe Arpaio, saving him from being subject to the authority of a judge. Trump can do that at any time — he just presumably wants to avoid doing so until after the election.

Ultimately, Trump has four possible ways to get Flynn out of his guilty verdict. And it is virtually guaranteed that one of them will work.

Update: Corrected how long Covington worked for Flynn.

Update: bmaz has convinced me that even if Barr forces DOJ to end its contest to the motion to dismiss, Sullivan would still have discretion to reject any motion to dismiss; I’ve updated the post accordingly.

Update: Corrected that it was Flynn, not the government, that submitted the exhibit showing that Covington gave Flynn more warning on conflict than he claims in his own declaration.

Update: Here’s Covington’s notice of compliance with Sullivan’s order to make sure they’ve handed everything over. Unsurprisingly, Sidney Powell is asking for stuff that goes well beyond the client file, perhaps as a stall.

The Frothy Right Wingers Claiming “Perjury Trap” Are Accusing General Flynn of Perjury

The frothy right is in full frenzy claiming that poor General Flynn, with his thirty years of intelligence experience, got naively caught in a perjury trap by FBI agents he regarded as his allies.

There’s a problem with that. Every single person claiming that Flynn was coerced to lie by the FBI — which necessarily concedes he did lie — is also accusing Flynn of perjuring himself in a recent sworn statement before Judge Emmet Sullivan. If what they say is true, then Flynn committed a crime in January, one for which the statute of limitations will extend until 2025.

Take this concession from right wing propagandist Jim Hanson, where he states that, “it seems clear he did lie.”

Hanson appears to excuse these lies because he doesn’t much care that, in the wake of an attack by a hostile foreign country, Flynn called up that country and told them it was no big deal, all while taking steps to hide that he had done so. That is, Hanson seems to excuse the lie because (in his mind, apparently) it is admirable for a man to work secretly with a country that has attacked America to help them avoid any repercussions for having done so.

Remember: Flynn told the FBI he thought an appropriate punishment for tampering with our elections would be a single Russian diplomat being sent home.

But once you’ve conceded that Flynn lied, you are accusing the General of perjury in a sworn filing submitted in January 29 which says,

On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI.

I am innocent of this crime, and I request to withdraw my plea.

Flynn’s declaration is full of other details that are provably false — such as that he was extremely busy and only had a limited amount of time to give the FBI Agents who interviewed him. Flynn talked about hotels, ISIS, and Trump’s knack for interior decorating before turning to that interview; Peter Strzok even wondered how he had so much time to shoot the shit.

So when Flynn claims, in the declaration, to still not remember if he discussed sanctions with Kislyak or the UN vote with Israel, it’s not only not credible, but also refuted by other witness testimony, including KT McFarland’s own 302s and those of several top Trump aides, who told Mueller they recognized in real time that Flynn had lied.

Flynn technically maintains he did not lie (though that means his sworn plea allocutions were perjury, and he has never reneged on his sworn grand jury testimony admitting he knew while working for Ekim Alptekin that he was actually working for the Turkish government).

But if, like Hanson, you concede he did lie, if you believe the FBI did succeed in capturing Flynn in a “perjury” trap (actually, a false statements trap), then you, by definition, believe that his sworn statement from January is a lie — perjury, and perjury not coerced by any evil FBI Agents but instead coaxed by his pretty Fox News lawyer Sidney Powell.

It is a testament to how unmoored from any aspiration to truth that this entire campaign to excuse Mike Flynn’s coming pardon is that key propagandists participating in it don’t bother to familiarize themselves with the facts or the precarious net of sworn claims Flynn has made. There appears no concern, on the part of the propagandists, to ensure their stated views fit logically with Flynn’s sworn statements, to say nothing of adhering to the known facts or reality.

Ultimately, though, this debate is not about truth, because no one contests that Flynn got caught telling the hostile country that had just attacked us in 2016 not to worry about any retaliation, and Republicans are simply trying to find a way to minimize the political fallout in ensuring he pays no price for having done so. Ultimately, Billy Barr has rolled out four possible ways he can guarantee Flynn won’t do prison time, with varying degrees of political cost to Trump and blithely incurred damage for rule of law, and it is virtually assured that one of those ways will work.

But the willingness of those wailing “perjury trap” to concede that Flynn did lie introduces an interesting dynamic into these issues of power. That’s because Judge Emmet Sullivan, as recently as December, and possibly as recently as last week, showed some impatience with being dicked around like this (though he’s also increasingly impatient with Covington & Burling’s failures to provide Flynn all their records). And Sullivan has the ability to find that Flynn has lied to him, Emmet Sullivan, repeatedly, including in his declaration from January. Sullivan has the means to do so even if Barr orders Flynn’s prosecutors to withdraw their contest of his motion to withdraw.

It would raise the cost of a pardon if Trump had to do it after a judge were to find that Flynn continued to lie, in 2017 to Judge Contreras, in 2018 to Judge Sullivan, and again in 2020 to Judge Sullivan, all without the coercion of some baddy FBI Agents purportedly springing a trap on him. And yet that’s precisely the scenario that the perjury trap wailers make more likely.

Mike Flynn Seizes the Rope to Hang Himself With: Pick Your Perjury

As I noted Wednesday, Mike Flynn’s legal team and the government submitted a bunch of filings.

In this post, I suggested (controversially) that prosecutors may have had a different purpose for raising probation in their reply to Flynn’s sentencing memo, to remind Judge Emmet Sullivan how pissed he gets when powerful people demand special treatment that the little people go to prison for. In this post, I suggested that Flynn’s motion to dismiss would be better suited if Sidney Powell were representing Carter Page, not Flynn.

In this post, I’ll cover the meat of the issue, Flynn’s attempt to withdraw his guilty plea, made twice, under oath.

Before I get into that meat, though, note that with a sworn declaration Flynn submitted with this filing, he has given four sworn statements in this matter:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview.
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview.
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.”

Understand that from the moment Judge Emmet Sullivan picks up this motion to withdraw his plea, Sullivan will be faced with Flynn claiming he lied, at least once, under oath. Take your pick which one of these statements under oath Flynn now claims to be a lie, but at least one of them necessarily is. And Sullivan has made it clear he plans to put Flynn back under oath to resolve all this.

That’s the hole that Sidney Powell has crafted for her client to dig his way out of, a sworn statement that conflicts with two earlier ones, and sworn testimony that conflicts with her primary basis for withdrawing this plea.

Almost no mention of his lies about Russia

From there, she provides her client little help from the primary task before him: explaining why he is withdrawing his guilty plea that primarily relates to his January 24, 2017 FBI interview. In the first paragraph of her motion, she asserts that Mike Flynn does maintain he did not lie on January 24, 2017, meaning he lied under oath before both Contreras and Sullivan when he said he did.

Michael T. Flynn (“Mr. Flynn”) does maintain that he is innocent of the 18 U.S.C. §1001 charges; and he did not lie to the FBI agents who interviewed him in the White House on January 24, 2017.

She offers several different explanations for why her client apparently perjured himself twice before judges. The most sustained one — one Flynn fans have made persistently — is that he now thinks the agents didn’t actually believe he lied because they “saw no indications of deception” from Flynn, meaning that he didn’t act like he was lying. Bizarrely, one of the things Flynn includes in his sworn declaration is that he has a history of not being candid about sensitive and classified subjects with anyone who is not his superior (though I would imagine that his former superior James Clapper would argue even this is not true).

My baseline reaction to questions posed by people outside of my superiors, immediate command, or office of responsibility is to protect sensitive or classified information, except upon “need to know” and the proper level of security clearance. That type of filter is ingrained in me and virtually automatic after a lifetime of honoring my duty to protect the most important national and military secrets.

In short, Flynn claims under oath that he has a habit of not telling the truth about classified or sensitive matters. He doesn’t quite say that’s what happened here, but since he has stated under oath he knew that it was a crime to lie to the FBI and he knew the people interviewing him would have had access to transcripts of his calls with Sergei Kislyak, has has provided evidence, under oath, that he knew these FBI agents were people he had to tell the truth to and were included among those with the “need to know” about what he said to Kislyak. But the explanation that he has a virtually automatic filter that leads him not to tell the truth about sensitive information does explain why agents might observe that he had a sure demeanor even while knowing he lied: Flynn has had a lot of practice lying.

Now, this by itself surely can’t get him out of his conflicting sworn statements that he didn’t lie but he did.

So Flynn blames his former lawyers.

As part of a broader strategy to claim that Flynn’s Covington team was incompetent, Sidney Powell claims (relying on Flynn’s declaration) that when the government made it clear to his lawyers they knew he had been lying, Flynn asked his lawyers “to make further inquiry with the SCO prosecutors about whether the FBI agents believed I had lied to them” (Flynn’s declaration is internally contradictory on this point, because he claims he heard rumors they didn’t believe this by November 30 but then, seven paragraphs later, he claims he never heard those rumors before he pled guilty on December 1). His attorney inquired and came back with the truthful response that the “agents stand by their statements.” Flynn claims that his attorneys did not tell him what he claims to be a critical detail, that the agents thought he sounded like he was telling the truth even though abundant other evidence (including Peter Strzok’s texts to Lisa Page, written before any draft 302s) make it clear they knew he was lying.

The information that counsel withheld concerned prior statements that the two FBI agents who interviewed Mr. Flynn in the White House had made about his “sure demeanor,” the lack of “indicators of deception,” and similar observations. Exs. Michael Flynn Declaration;Lori Flynn Declaration.

In an earlier round of briefing in this case, the government represented that it had communicated this information to the defendant on the day that the plea agreement was signed, November 30, 2017 [Gov’t’s Opp’n, ECF No. 122 at 16]. In its December 16, 2019 Opinion, moreover, this Court accepted and relied on that representation [Memorandum Opinion, ECF No. 144 at 32].As the Flynn Declarations demonstrate, however, that representation was mistaken: the government almost certainly made a disclosure to the defendant’s counsel on that day, but Covington did not then communicate the information to the defendant himself. Of course, in the vast majority of cases, communication to counsel is communication to the client, but it was not that day.

Flynn now claims it would have changed his mind to plead guilty if he learned that the FBI agents thought he was a pretty convincing liar, but his lawyers incompetently didn’t share that detail with him.

But wait.

There’s more.

Powell also suggests that the way the FBI investigated Flynn — first by monitoring how he responded to Trump’s first national security briefing (the one Flynn attended while secretly signing up to work for the Turkish government) and then by interviewing him in the White House — is proof they weren’t really investigating him.

Meanwhile, on January 24, 2017, as we have briefed elsewhere, FBI Director Comey and Deputy Director McCabe dispatched Agents Strzok and “SSA 1” to the White House— deliberately contrary to DOJ and FBI policy and protocols—without notifying DOJ.9

9 This was actually the FBI’s second surreptitious interview of Mr. Flynn—without informing him even so much as that he was the subject of their investigation. SSA 1 had “interviewed him” in a “sample Presidential Daily Briefing” (“PDB”) on August 17, 2016—unbeknownst to anyone outside the FBI or DOJ until revealed in the recent Inspector General Report of December 9, 2019.

This also goes to Mr. Flynn’s claim of actual innocence. Against the baseline interview the FBI surreptitiously obtained under the guise of the PDB (in August 2016), the agents conducted the White House interview and immediately reported back in three extensive briefings during which both agents assured the leadership of the DOJ and FBI they “saw no indications of deception,” and they believed so strongly that Mr. Flynn was shooting straight with them that Strzok pushed back against Lisa Page’s disbelief and Deputy Director McCabe’s cries of “bullshit.” ECF No. 133-2 at 4. This development is addressed in Flynn’s Motion to Dismiss for Egregious Government Misconduct filed contemporaneously herewith.

[snip]

The electronic communication written by SSA 1 arising from the presidential briefing was approved by Strzok. It was uploaded into Sentinel August 30, 2016. IG Report at 343 and n. 479. In truth, but unknown to Mr. Flynn until the release of this Report, SSA1 was actually there because he was investigating the candidate’s national security advisor as being “an agent of Russia.” This report of that interaction including purported statements by Mr. Flynn was put it in a sub-file of the Crossfire Hurricane file. That, and the DOJ document completely exonerating Mr. Flynn of that slanderous assertion, has never been produced to Mr. Flynn. This was extraordinary Brady and Giglio information that should have been provided to Mr. Flynn by Mr. Van Grack no later than upon entry of this Court’s Brady order

[snip]

With every disclosure and IG Report of the last eighteen months, it has become increasingly clear the FBI was not trying to learn facts from Mr. Flynn on January 24, 2017. Rather, the Agents were executing a well-planned, high-level trap that began at least as far back as August 15, 2016, when Strzok and Page texted about the “insurance policy” they discussed in McCabe’s office, opened the “investigation” on Mr. Flynn the next day, and inserted SSA 1 surreptitiously into the “sample PDB” the next day to investigate and assess Mr. Flynn.

Even if these assertions were true, none of it rebuts that Flynn told lies in that interview.

Which is probably why Powell goes on to argue that the answers that Flynn claims weren’t lies weren’t material to the FBI investigation, based in part on Judge Sullivan’s comments from the December 2018 sentencing hearing that probably were more indication that he wanted prosecutors to lay out how bad Flynn’s lies were.

Finally, the Court was not satisfied with the factual basis for the plea. It said it had “many, many, many questions.” Hr’g Tr. Dec. 18, 2018 at 20. The Court, sensing the materiality issues in the case, specifically left those questions open for another day. Id. at 50. 40

40 The element of materiality boils down to whether a misstatement “has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.” United States v. Gaudin, 515 U.S. 506, 522-23 (1995). In applying this rule, courts analyze the statement that was made and the decision that the agency was considering. Universal Health Services, Inc. v. U.S. ex rel. Escobar, 136 S. Ct. 1989, 2002-03 (2016). For a misstatement to be material, the agency must show that it would have made a different decision had the defendant told the truth.

The government alleges misstatements that were not material because the FBI agents did not come to the White House for a legitimate investigative purpose; they did not come to investigate an alleged crime. Instead, they came to get leverage over Mr. Flynn at a time when they felt the new administration was still disorganized. So they ignored policies and procedures. They went around the Department of Justice and the White House Counsel’s office, and they walked into the National Security Advisor’s office under false pretenses. They decided not to confront Mr. Flynn with any alleged misstatement not for a legitimate law enforcement purpose, but rather because they did not know if the effort to purge him from his office would be successful. If it was not, they wanted to maintain a collegial working relationship with him. If Mr. Flynn had answered the questions the way in which they imagine he should, nothing at all would have changed in the actions the FBI would have taken.

Powell, of course, presents no evidence for these wild claims. Moreover, she ignores the evidence of materiality that prosecutors submitted in their own sentencing memo.

The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

She ignores, too, that prosecutors put her on notice that they’re going to show that Flynn continued to lack candor in his first meetings with Mueller’s team, a team that did not include either of the FBI agents she says had it in for her client.

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.

Flynn’s declaration actually accords with this. He describes how, after his first interview with Mueller’s prosecutors, “my attorneys told me that the first day’s proffer did not go well.” It wasn’t until several more meetings before Mueller’s team gave Flynn’s attorneys his first 302, which made it clear how dramatically he had lied.

All of which is to say that Powell’s most robust support for Flynn’s claim that he didn’t lie is that FBI agents believed he had lied well, which probably isn’t going to convince Sullivan to let him withdraw his sworn plea that he did in fact lie.

Cursory consideration of Cray

That makes it all the more problematic that Powell barely addresses what Judge Sullivan told both sides to: a hearing with sworn witnesses and to address US v Cray. True, she does say that if the government doesn’t agree with this motion Sullivan should maybe hold a hearing.

No hard and fast rule governs whether an evidentiary hearing is required before a court can properly adjudicate ineffective assistance of counsel claims, including those undergirding a motion to withdraw a guilty plea. Much depends on exactly what is being contested and what materials the court will have to consider in deciding the merits. In Taylor, 139 F.3d at 932-33, this Circuit wrote:

Ordinarily, when a defendant seeks to withdraw a guilty plea on the basis of ineffective assistance of trial counsel the district court should hold an evidentiary hearing to determine the merits of the defendant’s claims. . . . On the other hand, some claims of ineffective assistance of counsel can be resolved on the basis of the trial transcripts and pleadings alone.3

But she doesn’t commit to putting her client (and his former attorney) under oath, which is where this is heading.

And her briefing on Cray is cursory. She deals with the standard under which that defendant tried to withdraw his plea.

United States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995), which this Court requested counsel address, denied withdrawal of a guilty plea because there was no violation of Rule 11. As more recent circuit decisions hold, Rule 11 violation is only one of the reasons that warrants granting a motion to withdraw a plea. Here, Sixth Amendment violations taint Mr. Flynn’s plea, and it cannot stand.38 United States v. McCoy, 215 F.3d 102, 107 (D.C. Cir. 2000) (“A plea based upon advice of counsel that ‘falls below the level of reasonable competence such that the defendant does not receive effective assistance’ is neither voluntary nor intelligent.”) (internal citation omitted).

Moreover, she claims there was a Rule 11 violation in the reallocution before Judge Sullivan, because he didn’t ask Flynn whether there were other promises to induce him to plead.

That plea colloquy did not, however, inquire into whether any undisclosed promises or threats induced the plea agreement. Moreover, the Court specifically expressed its dissatisfaction with the underlying facts supposedly supporting the factual basis for the plea. United States v. Cray, 47 F.3d 1203, 1207 (D.C. Cir. 1995) (“Where the defendant has shown his plea was taken in violation of Rule 11, we have never hesitated to correct the error.)”

But Judge Contreras did allocute to that (in addition to making Flynn attest that he was happy with the advice Rob Kelner gave him).

THE COURT: Have any threats or promises other than the promises made in the plea agreement been made to you to induce you to give up your right to the indictment?

THE DEFENDANT: No.

Flynn now claims that he pled to ensure Mueller would not prosecute his failson, but he didn’t raise it on December 1, 2017 when asked if there any more promises made to him.

Moreover, Powell does not address another part of Cray: that when the judge put him under oath, he revealed that his claims of innocence related to other charges, something Flynn is doing here.

Powell claims Covington did not give Flynn notice of their conflict but provides evidence they did

Rather than making a robust case that Flynn did not commit the crime that he pled guilty to, lying about Russia, she instead argues that Covington was fatally conflicted when they advised Flynn to plead guilty. She argues that Flynn told the entire truth to his Covington attorneys while they were preparing his FARA filing, they didn’t include the information he had provided them, and so they made him plead guilty to get out of trouble they had created themselves.

Before I explain the problems with this, recall that I raised questions about a conflict immediately after the December 2018 sentencing hearing. So I’m actually sympathetic to the argument.

But there are two problems with her argument.

First, she’s obscuring the nature of the lies in Flynn’s FARA filing in an effort to pretend that Flynn did not lie to Covington when preparing the filing. I debunked some of her claims here, but one bears repeating. Flynn’s statement of offense described one of the false statements on the filing as “an op-ed by FLYNN published in The Hill on November 8, 2016 was  written at his own initiative.” Powell pretends this is a dispute over whether Flynn actually wrote the op-ed himself. Flynn did tell Covington, truthfully, that Kian had drafted the op-ed, which Powell notes repeatedly.

But Covington’s notes also show that Flynn told Covington the op-ed had nothing to do with the Turkish contract, and that he did it solely to prove that the Trump campaign was serious about fighting Islamic terrorism.

That is, he not only lied about whether it was his idea to write it, but lied about it being the deliverable for the Turkish contact altogether. As noted above, Flynn testified under oath he didn’t even know this op-ed was coming until Kian delivered it in full draft form to him. And, as DOJ has already made clear, Covington’s lawyers will testify that Flynn didn’t tell them the truth about the op-ed, as this interview report from Rob Kelner makes clear.

(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.

So the public record — including notes released by Powell — shows that Flynn (and Kian) were responsible for the false statements in the FARA filing, not Covington.

Moreover, documents submitted by Powell on Wednesday make it clear Covington informed Flynn of the conflict. Flynn (and his wife, who submitted a declaration that now makes it possible for prosecutors to breach spousal privilege) suggests he was only informed of the conflict twice — once in August and once in November after his first proffers. He describes the August advice as a 15-minute conversation he had after pulling over on the side of a road.

The call then occurred while we were driving to have dinner with some friends. It was an approximately 15-minute phone call, where we had pulled off to the side of a highway. They informed us that there was a development regarding a conflict of interest. They also mentioned the possibility of Bijan being indicted. Speaking to the conflict of interest, they stated that they were prepared to defend as vigorously, if the conflict became an issue. We told them we trusted them.

The government has, in the past, noted they raised a potential conflict with Covington twice, on November 1 and November 16, before they ever spoke with Flynn. An exhibit Powell included Wednesday shows that on November 20, 2017, Flynn responded to a Covington email stating the description of the conflict “is very clearly stated” but that “we’re good going forward with you all and very much trust that you will continue to guide us through this difficult time.” The email reflected at least three warnings from Covington:

  • August 30, where they informed him of the conflict and suggested he “obtain advice from a lawyer independent of Covington”
  • A later conversation where they suggested the name of another lawyer with expertise in legal ethics who had already determined he had no conflict who was “willing to be engaged by you for a reduced, fixed fee”
  • The warning on November 19, which for the third time advised him to “seek advice from an independent lawyer about this”

Flynn did not contest their representation of those (at least) three warnings. Powell now claims they cited the wrong rule of professional conduct — about the only claim in the filing that might have merit. And — in a passage denying their (at least) third warning to Flynn — she also suggests that the Covington lawyers faced criminal liability themselves for repeating what their client told them.

What had begun as a simple mistake in doing the FARA filing suddenly had the potential of exposing the Covington lawyers to civil or criminal liability, significant headlines, and reputational risk. That the Covington lawyers thought that a “drive-by” cell-phone chat, while their client was on his way to dinner with his wife, was sufficient disclosure in these dire circumstances revealed their cavalier attitude and presaged far worse. [emphasis original]

She doesn’t note, of course, that Covington’s possible exposure on FARA, and the ability of the government to get them to testify, remained the same whether or not they remained Flynn’s lawyer.

And all that’s before Covington starts producing other records that are less complimentary to Flynn.

Remember: A key part of Sidney Powell’s argument here is that Covington — the lawyers who advised Flynn that if he withdrew his plea in December 2018 he’d only be giving Judge Sullivan more rope to hang himself with — provided obviously incompetent legal advice.

Be careful what you wish for

Way back when Flynn first got cute in advance of his December 2018 sentencing, I warned him, be careful what you wish for. Raising the circumstances of his FBI interview was likely, I predicted, to get Sullivan to ask for those details.

Which he subsequently did, resulting in damning new information about Flynn’s lies to be released.

I feel like that’s bound to happen here. For example, Powell keeps complaining that DOJ won’t provide her Flynn’s DIA briefings regarding his trips to Russia. She has raised what happened in Flynn’s proffers, but not provided the 302s which even Flynn’s declaration suggests was a disaster. The government has already telegraphed they may release this stuff.

There’s even the possibility that if Judge Sullivan asks to have witnesses, DOJ will ask that Don McGahn, John Eisenberg, or Reince Priebus testify. According to the Mueller Report, they all believed he was lying to them about what he remembered he had said to Kislyak.

So in addition to not heeding the advice about giving a judge more rope to hang you with, I feel like someone should have warned Flynn to be careful of what he wishes for. Again.

A number of people have pointed to Bill Barr’s sudden installation of a loyal aide at DC US Attorney and assumed it means the fix is in for the Flynn sentencing.

Attorney General William P. Barr on Thursday named former federal prosecutor Timothy Shea as the District’s interim U.S. attorney.

Shea, 59, currently serves as a counselor to Barr at the Justice Department. He will oversee the nation’s largest U.S. attorney’s office with 300 prosecutors.

The announcement comes just a day before Jessie K. Liu, the city’s current U.S. attorney, leaves office on Friday.

Liu, 47, has served in the post for a little over two years. President Trump on Jan. 6 nominated her to become the Treasury Department’s undersecretary for terrorism and financial crimes, and her nomination is pending before the Senate Banking Committee.

I absolutely don’t discount the possibility that Barr did this to better retaliate against Andrew McCabe and shut down the remaining investigations of Trump’s aides being conducted by the DC US Attorney’s office. As I may get around to showing, I think the risk is particularly acute for Roger Stone’s sentencing, where Trump has far more untapped exposure than Flynn. And it may well be the case that Barr and Shea force prosecutors to submit a half-hearted response to this motion to withdraw (though some of them are actually NSD attorneys who report up through other channels).

But at this point, the damage has already been done. There is no way to change the fact that Flynn has sworn to statements, under oath, before Judge Sullivan that materially conflict.

The Guy Who Defended Roger Stone’s Campaign Finance Shenanigans Did Not Testify to the Grand Jury

In response to an order from DC Chief Judge Beryl Howell, the government has revealed the two witnesses of interest to Congress who did not testify to the grand jury. The first, Don Jr, should not surprise anyone who has been following closely, as that was clear as soon as the Mueller Report came out.

The other–Don McGahn–is far more interesting, especially since he was interviewed on five different occasions: November 30, December 12, December 14, 2017; March 8, 2018; and February 28, 2019.

Most likely, the reason has to do with privilege, as McGahn’s testimony, more than almost anyone else’s, implicated privilege (in part because many witnesses’ testimony cut off at the transition). McGahn ended up testifying far more than Trump knew, and it’s possible he did that by avoiding a subpoena, but had he been subpoenaed, it would provide the White House opportunity to object.

Elizabeth De la Vega said on Twitter it likely had to do with how valuable McGahn was in his five interviews. By not making him testify to the grand jury, she argued, you avoid creating a transcript that might undermine his credibility in the future. That’s certainly consistent with the Mueller Report statement finding McGahn to be “a credible witness with no motive to lie or exaggerate given the position he held in the White House.” But that reference is footnoted to say, “When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.” Plus, while McGahn testified more than any other witness not under a cooperation agreement, Steve Bannon and Hope Hicks testified a bunch of times, too (four and three times respectively), but were almost certainly put before the grand jury.

But there is a different, far more intriguing possibility.

First, remember that Roger Stone was investigated for more than lying to Congress (indeed, just the last four warrants against him, all dating to this year, mentioned just false statements and obstruction). Which crimes got named in which warrants is not entirely clear (this government filing and this Amy Berman Jackson opinion seem to conflict somewhat). Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), was named in all Stone’s warrants before this year. But at least by August 3, 2018, the warrants against Stone listed a slew of other crimes:

  • 18 U.S.C. § 3 (accessory after the fact)
  • 18 U.S.C. § 4 (misprision of a felony)
  • 18 U.S.C. § 371 (conspiracy)
  • 18 U.S.C. §§ 1505 and 1512 (obstruction of justice)
  • 18 U.S.C. § 1513 (witness tampering)
  • 18 U.S.C. § 1343 (wire fraud)
  • 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud)
  • 52 U.S.C. § 30121 (foreign contribution ban)

For whatever reason, the government seems to have decided not to charge CFAA (if, indeed, Stone was the actual target of that investigation). They may have given up trying to charge him for encouraging or acting as an accessory after the fact.

The Mueller Report explains — albeit in mostly redacted form — what happened with the 52 U.S.C. § 30121 investigation. First Amendment and valuation concerns about a prosecution led Mueller not to charge it, even though he clearly seemed to think the stolen emails amounted to an illegal foreign campaign donation.

But that leaves wire fraud and conspiracy to commit wire fraud. During the month of August 2018, DOJ obtained at least 8 warrants relating to Stone including wire fraud. Beryl Howell — who in her order requiring the government unseal McGahn’s name, expressed puzzlement about why Don McGahn didn’t testify before the grand jury — approved at least five of those warrants. Rudolph Contreras approved one and James Boasberg approved two. So apparently, very late in the Stone investigation, three different judges thought there was probable cause Stone and others engaged in wire fraud (or tried to!).

And it’s not just those judges. Roger Stone’s aide, Andrew Miller, was happy to testify about WikiLeaks and Guccifer 2.0. But at least when his subpoena first became public, he wanted immunity to testify about the campaign finance stuff he had done for Stone.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

I’d like to consider the possibility that McGahn, Donald Trump’s campaign finance lawyer before he became White House counsel, was happy to testify about Trump’s attempt to obstruct justice, but less happy to testify about campaign finance issues.

Mind you, McGahn is not one of the personal injury lawyer types that Stone runs his campaign finance shenanigans with. Whatever else he is, McGahn is a professional, albeit an incredibly aggressive one.

That said, there are reasons it’s possible McGahn limited what he was willing to testify about with regards to work with Stone.

At Roger Stone’s trial the government plans (and has gotten permission) to introduce evidence that Stone lied about one additional thing in his HPSCI testimony, one that wasn’t charged but that like one of the charged lies, involves hiding that Stone kept the campaign in the loop on something.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

A September hearing about this topic made clear that it pertains to what Stone’s PACs were doing.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

It sounds like Stone cleared up this testimony (Stone sent two letters to HPSCI in 2018, and one of those would have come after Steve Bannon testified about emails that included a Stone demand that Rebekah Mercer provide him funding), which may be why he didn’t get charged on that front.

As I’ve suggested, if Stone was actively trying to deny that the work of his PACs had any interaction with the Trump campaign, it might explain why he threatened to sue me when I laid out how McGahn’s continued work for Trump related to Stone’s voter suppression efforts in 2016.

And remember: when Stone aide Andrew Miller did finally testify — after agreeing to at virtually the moment Mueller announced he was closing up shop — he did so before a new grand jury, after Beryl Howell agreed with prosecutors that they were in search of evidence for charges beyond what Stone had already been indicted on or against different defendants.

McGahn’s campaign finance work for Stone and Trump is one of the things he’d have no Executive Privilege claims to protect (though barring a showing of crime-fraud exception, he would have attorney-client privilege), since it all happened before inauguration.

Again, there are lot of more obvious explanations for why he didn’t testify before the grand jury. But we know that Mueller investigated these campaign finance issues, and we know McGahn was right in the thick of them.