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HJC Should Ask Bill Barr Why It Would Do Irreparable Harm if He Had to Explain His Actions in the Flynn Case

Unless he comes up with some new excuse, tomorrow Billy Barr will finally show up for an oversight hearing in the House Judiciary Committee.

There are a number of sets of questions that commentators have suggested for the hearing (a strategic set of four topics that will show how Barr is hurting the US, an updated set from JustSecurity, some questions about Geoffrey Berman’s firing).

I could come up with similar lists. They’d be long and — by the time anyone executed them competently on the Democratic side — the big media outlets would have already filed their story on the hearing.

One thing that should be included, however, is the letter that Sidney Powell sent Barr and Jeffrey Rosen in June 2019 and Bill Barr’s actions to deliver on her demands in the subsequent year, actions that DOJ itself admits would do irreparable harm if DOJ had to explain.

The letter was effectively a road map of demands, many of them based off hoaxes, almost all of them unrelated to Flynn’s prosecution or false. It later became the Brady demand that Judge Emmet Sullivan rejected in a meticulous opinion last December. In it, Powell demanded that DOJ conduct a review of the prosecution and then dismiss the prosecution.

At the end of this internal review, we believe there will be ample justification for the Department to follow the precedent of the Ted Stevens case and move to dismiss the prosecution in the interest of justice — whether it be we ink a simple joint motion or sua sponte by the Department.

NYT wrote about this letter in June, calling it “little noticed” but predictably not crediting me, who did noticed it and wrote about it repeatedly.

HJC should raise this letter with Billy Barr for several reasons. First, little in the letter turned out to be true. Indeed, DOJ has asserted in court filings that even where documents Powell asked for existed, none of it was Brady material (and in fact, in spite of Timothy Shea’s claim that these materials were new, that was false, meaning DOJ has no justification for flip-flopping on its call for prison time for Flynn from earlier this year). Powell should have gotten none of it, and yet Barr invented an unprecedented process to give it to her and then use it to self-sabotage the case.

More importantly, the way in which Barr has rolled out the release of these documents has served, in part, to hide the shoddiness of Timothy Shea’s motion to dismiss. Based off a misrepresentation of Bill Priestap’s notes, Shea pretended that the interview with Flynn focused exclusively on the Logan Act. That wasn’t even an accurate reading of Priestap’s own notes. Since then, DOJ has released several more documents that make it clear FBI’s focus was on whether Flynn was a foreign agent (and also provide more evidence that the Flynn 302s track the Agents’ description of the interview), documents that undermine their own motion to dismiss. They’ve either withheld a Bill Priestap 302 explaining what happened or Powell has decided it doesn’t help her. And there are more records that they are sitting on that undermine the claims in their motion to dismiss.

Importantly, while DOJ was making claims that Flynn’s lies were not material, John Ratcliffe was releasing documents that explained why they were.  Of particular note, on February 14, 2017 — weeks after all the meetings DOJ has been focused on, Peter Strzok, in an annotation that made it clear he did not have it in for Trump or his flunkies, also made it clear that FBI didn’t have any phone records yet.

We have very few call logs. NSLs have been issued for Manafort, Page, and Flynn, many of which have not yet been returned.

On February 25, notes from Tashina Gauhar make clear, Strzok and Joe Pientka believed Flynn didn’t believe he had been lying. They also judged — not having phone records or much else yet — that they did not think he was an agent, but they needed to verify that.

That got translated into a later draft summary into a conclusion that Flynn wasn’t a foreign agent.

But as FBI would get first call logs (which would reveal Flynn had also lied about being in contact with Mar-a-Lag0) and then his texts (which would make it clear Flynn knew well about the sanctions Obama had imposed), that would dramatically change the import of his lies. By the time he started cooperating, Flynn made it clear that he and KT McFarland had immediately set about trying to cover up the response Sergey Kislyak gave to Flynn’s request.

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

The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. 1262 Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. 1263 Hours later President-Elect Trump tweeted, “Great move on delay (by V. Putin).” 1264 Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267 [my emphasis]

KT McFarland’s 302s would show she told the same untruths that Flynn had told, even after he got fired for telling them. More recently, it became clear that the White House scripted Bannon to deny discussing sanctions as well.

Meanwhile, the government is still withholding the first (known) post-election transcript between Flynn and Kislyak, where he first started this game of deal-making with the country that just attacked us.

All these details may not amount to Flynn acting as an Agent of Russia.

Rather, they amount to a concerted cover-up of the White House role in this sanction discussion. That’s a topic that a sentencing memorandum approved by top people in Bill Barr’s DOJ argued was significant and material, because a concerted effort to undermine sanctions on Russia, “could have been evidence of links or coordination between the Trump Campaign and Russia.”

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia.

The concerted effort to hide the extensive coordination on sanctions — involving at least Flynn, McFarland, and Bannon — was designed hide whether the Trump response to Obama’s sanctions amounted to the kind of quid pro quo Mueller was appointed to investigate. A question on sanctions relief is the single one that Trump totally blew off in his responses to Mueller.

DOJ wants to claim that Flynn’s conversations with Sergey Kislyak were totally normal. But not only are they still hiding at least one of them, but they were utterly material to the Mueller investigation.

But then there’s the final reason why HJC should question Barr about the letter from Sidney Powell that he apparently delivered on a year after she demanded: DOJ itself admitted that explaining DOJ’s actions here would do irreparable harm.

The more interesting argument came from Wall. He argued, repeatedly, that DOJ will be irreparably harmed if Sullivan is permitted to hold a hearing on DOJ’s motion to dismiss. In particular, he seemed horrified that Sullivan might require sworn declarations of affidavits.

As Beth Wilkinson, arguing for Sullivan, mentioned, neither Sullivan nor Amicus John Gleeson has called for such a thing. Both are simply moving towards a hearing scheduled for July 16. Wilkinson also noted that District courts hold such hearings all the time. (And they predictably will have to in another case where DOJ has moved to end a prosecution recently, in which — unlike this case — there appears to have been prosecutorial misconduct, Ali Sadr Hashemi Nejad, which I’ll return to).

Wall is literally arguing that DOJ will be permanently damaged if it has to show up and answer for its actions in this case (in particular, to explain why the prosecutors in this case didn’t sign the motion to dismiss).

That Wall argued so forcibly as to the injury that DOJ would suffer if it had to show up and defend its motion to dismiss is all the crazier given that they didn’t file the petition. The only harm that matters here procedurally is any harm to Flynn, not DOJ, and Powell really made no such case.

Indeed, that’s the reason why the DC Circuit granted mandamus in the Flynn case — not because of any injury that Flynn might face from having Sullivan scrutinize the case, but because having to answer for what Barr did here would — simply having to show up to the kind of hearing that DOJ shows up to every day and answer questions under oath — would do grave damage to DOJ.

HJC should take DOJ at its word. DOJ has confessed their actions can’t withstand the least amount of scrutiny. HJC should demand to know why.

Lindsey Graham Provides Yet More Proof that Peter Strzok Didn’t Have It In for Trump

Lindsey Graham just released two more documents that don’t show what [his personally implicated staffer Barbara Ledeen] claims they show.

The more important is the Electronic Communication memorializing FBI’s 3-day interview with Christopher Steele’s primary subsource for the dossier. It’ll take me much of tomorrow to write it up, but suffice it to say that, as an utterly committed Steele skeptic, the EC is actually far more supportive of the dossier than I thought it’d be or than the DOJ IG Report claimed it was. Though it also provides tons of details of how it might have gone haywire, if it did.

More briefly, Lindsey also released an annotation Peter Strzok did (probably as part of his job hunting down leaks) of the February 14, 2017 NYT story alleging Trump’s flunkies had close ties with Russian intelligence.

The annotation shows that Strozk found multiple problems with the NYT story. Strozk’s corrections explain that,

  • None of Trump’s flunkies were known to have ties directly with Russian intelligence but:
    • While Carter Page had extensive ties with SVR, that wasn’t during his time on the campaign
    • At least one of Paul Manafort’s contacts had contact with Russian intelligence
    • Sergey Kislyak had contact with three people — Mike Flynn, Jeff Sessions, and one other person (probably JD Gordon)
  • The FBI didn’t have intercepts on people; while it had given names — that explicitly include Manafort’s Ukrainian colleagues — to CIA and NSA, but did not ask for close scrutiny of them
  • The counterintelligence case in which Manafort was a subject was not opened until 2016, although FBI may have had an earlier kleptocracy investigation earlier
  • In February 2017, the FBI did not have an investigation into Roger Stone
  • While Christopher Steele might have credibility, he didn’t have much insight into the reliability of his subsources

Strzok also inadvertently revealed (by debunking claims in the story) that by February 2017, the FBI had sent out call log and credit report NSLs on Manafort, Page, and Flynn, but hadn’t gotten many of those back, and had not gotten detailed banking records. The investigation was barely begun in February 2017.

To be fair, these details were largely known, though the specificity about the NSLs is not only welcome, but unprecedented and unnecessary.

Ultimately, though, this is yet another piece of evidence — like Strzok’s observations that Flynn didn’t betray he was lying and his judgment that the Russian investigation would amount to little — that Strzok didn’t have it in for Trump or his flunkies, but instead assessed the case in real time.

Nevertheless, Strzok remains the big villain in this story.

Update: I inadvertently left off the Steele judgment above.

Update: Strzok’s Steele judgment actually shows up in the DOJ IG Report on Carter Page.

Following the January interview with the Primary Sub-source, on February 15, 2017, Strzok forwarded by email to Priestap and others a news article referencing the Steele election reporting; Strzok commented that “recent interviews and investigation, however, reveal [Steele] may not be in a position to judge the reliability of his sub-source network.”

The IG did not, however, note that this is one of several moments where Strzok clearly expressed skepticism, no matter his views about Trump, nor did it describe the other critiques he made.

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

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

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

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

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

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

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

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

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

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

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

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

Flynn: Okay.

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

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

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

Flynn: Yes.

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

Flynn: Okay.

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

[snip]

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

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

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

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

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

FLYNN: Uh huh.

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

FLYNN: Please.

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

FLYNN: Uh huh.

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

FLYNN: Okay.

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

FLYNN: Okay that’s good.

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

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

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

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

FLYNN: Right.

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

FLYNN: Mmhm.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KISLYAK: yeah.

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

KISLYAK: You’re absolutely right.

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

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

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

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

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

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

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

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

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

KISLYAK: We have conveyed it. And –

FLYNN: Yeah.

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

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

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

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

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

FLYNN: yeah, yeah

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

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

“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 Trump Administration Disproves the Trump Administration’s Claims that Mike Flynn’s Communications with Sergey Kislyak Were Routine

In this post, I showed how former National Security Advisor Susan Rice’s memorialization of a conversation about Mike Flynn’s calls to Sergey Kislyak with President Obama and others on January 5, 2017 made it clear that Obama wanted nothing to do with any investigation into Flynn. I noted there was one redacted passage that seemed, “consistent with Obama adopting some caution, but deferring any more drastic measures unless, ‘anything changes in the next few weeks.'”

In a never-ending bid to distract from Trump’s disastrous performance on COVID, the Trump Administration has now released the full letter, which reads this way:

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Corney and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

Director Comey affirmed that he is proceeding “by the book” as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that could be an issue as it relates to sharing information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied, “potentially.” He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that “the level of communication is unusual.”

The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.

The italicized passage is new. It reveals that Flynn was speaking to Kislyak “frequently,” a comment which is consistent with Sally Yates’ concern about the “back and forth” between Kislyak in which Flynn was making “specific asks.” Some of those specific asks Yates described in her Mueller interview remain redacted (as are the transcripts of Flynn’s calls with Kislyak themselves).

In DOJ’s motion to dismiss Flynn’s prosecution, they argue that Flynn’s calls were routine calls made to “build relationships.”

Such calls are not uncommon when incumbent public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts.

But the motion addresses only a subset of calls, not (for example) the face-to-face meeting with Kislyak on December 1, or calls Flynn made during the election (his 302 mentions one he made in January 2016, at a time he claimed not to be working with Trump, but there are reports there were more).

Most importantly, the filing doesn’t address a key reason why the FBI had reason to investigate Mike Flynn: the frequency of his calls to Kislyak were “unusual.”

In an effort to gaslight Trump supporters, then, the Trump Administration just showed that DOJ’s motion to dismiss falsely treated as normal communications that were not.

Which, given that the Trump Administration just produced evidence that proves DOJ’s motion to dismiss made a false claim, provides Sullivan all the more reason to demand all the transcripts between Flynn and Kislyak.

Glenn Greenwald’s Invented Claims in Defense of Bill Barr and Mike Flynn

Last week, Glenn Greenwald did a podcast defending Bill Barr’s efforts to overturn the prosecution of Mike Flynn (here’s a transcript; the italicized language below is my correction of that transcript). A whole slew of people wrote me in alarm over some of the claims he made in it. After some reflection, I decided to do a post showing how the public record that Glenn claims to have consulted in his podcast at least undermines some of his claims, and in places utterly refutes it.

Two points about this. First, after I made it clear I was working on this in conversations with Glenn, he wrote this post, once again claiming to know details of what I shared with the FBI and what their response to that was, which I assume was an attempt to bully me into withholding this post. Ironically, The Intercept is fundraising off that post, celebrating a post that gets key details wrong. That is their prerogative. Glenn will apparently continue to make these claims; while there are baseless claims in it, I will continue to focus on correcting his baseless claims about other issues more central to current affairs.

Before Glenn posted that post, I asked if people would support this one by donating to my local food bank. This post took a great deal of work, at a time I’ve got far more important things to do from a reporting and personal perspective. If you recognize that work and if you can afford it at this time of crisis, please consider a donation to Feeding America West Michigan. Thanks!

False claim: Mueller acknowledged that the crime was not particularly serious by recommending that Flynn be sentenced to not a single day in prison

As “proof” that no one should be worried about DOJ’s actions with regards to Flynn, Glenn claims that prosecutors said Flynn’s crime was not serious and he should do no prison time.

These flamboyant warnings about the critical importance of the Flynn prosecution and the cataclysmic consequences of the Justice Department’s decision to request its dismissal are particularly odd since General Flynn was accused of a single crime lying to the FBI pled guilty to it. And then the prosecutor Robert Mueller and his prosecutorial team acknowledged that the crime was not particularly serious by recommending to the judge that General Flynn be sentenced to not a single day in prison, citing both the cooperation he gave to the prosecution as well as the nature of the crime. So even the prosecutors in this case, have said that the conviction that came from the plea bargain doesn’t warrant a second in prison time.

While Mueller’s team appeared amenable to probation in their first sentencing memo, they did not actually recommend probation, leaving it up to Judge Sullivan’s discretion. Moreover, they introduced their recommendation for a low end of guideline sentence by stating Flynn’s crime was serious.

The defendant’s offense is serious. As described in the Statement of Offense, the defendant made multiple false statements, to multiple Department of Justice (“DOJ”) entities, on multiple occasions.

[snip]

For the foregoing reasons, as well as those contained in the government’s Addendum and Motion for Downward Departure, the government submits that a sentence at the low end of the advisory guideline range is appropriate and warranted.

After Flynn tried to get cute in his own sentencing memo, the government reiterated the seriousness of Flynn’s crime.

The seriousness of the defendant’s offense cannot be called into question, and the Court should reject his attempt to minimize it. While the circumstances of the interview do not present mitigating considerations, assuming the defendant continues to accept responsibility for his actions, his cooperation and military service continue to justify a sentence at the low end of the guideline range.

When Judge Sullivan asked prosecutors about benefits Flynn had obtained from cooperating at the sentencing hearing, Brandon Van Grack indicated that Flynn had been exposed to conspiracy and Foreign Agent charges, which could amount to a ten or fifteen year sentence (which is what Flynn says Covington counseled him before he pled guilty).

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

MR. VAN GRACK: Yes, Your Honor.

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

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

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

MR. VAN GRACK: I believe so.

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

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

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

MR. VAN GRACK: Yes, Your Honor.

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

THE COURT: Yes, Counsel.

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

After Flynn blew up his plea deal, prosecutors got more explicit about the seriousness of Flynn’s crimes in their second sentencing memo, one that had to be delayed twice to get approvals from everyone in DOJ.

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

[snip]

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

[snip]

The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it.

The only time any sentencing memo raised probation was the reply memo in January, which came after Barr started the process of reversing Flynn’s prosecution.

As set forth below, the government maintains that a sentence within the Guidelines range – to include a sentence of probation – would be appropriate and warranted in this case.

[snip]

Based on all of the relevant facts and for the foregoing reasons, the government submits that a sentence within the Guidelines range of 0 to 6 months of incarceration is appropriate and warranted in this case, agrees with the defendant that a sentence of probation is a reasonable sentence and does not oppose the imposition of a sentence of probation.

Inapt comparison: Bill Barr’s orchestration of Cap Weinberger’s pardon is worse than Bill Barr doing the pardon here

In a crazy bit of straw man argument, Glenn claims (with no evidence) that those complaining about the Flynn matter don’t also care about past abuses of clemency and prosecutorial discretion.

And yet we’re hearing that the refusal to proceed with it is the end of American justice as we know. Apparently under this view, prior subversions of justice by the executive branch, such as the Act that I regard as the single most corrupt attack on basic justice in the United States, which is a decision by President Bush 41 to pardon numerous of his closest aides implicated in crimes relating to the IranContra scandal, including his defense secretary, Caspar Weinberger who had been charged with perjury crimes and trials that would have likely led to the investigation and probably the conviction of President Bush 41 himself.

The comparison is inapt for reasons that go to the core of how we hold the President accountable for abuse of his Article II authority.

Mueller has made it clear that if Trump weren’t the President, he would have been indicted for obstruction. One act of his obstruction involved firing Jim Comey in an attempt to end the investigation into Flynn. Another involved calling Flynn’s lawyer, Rob Kelner, and demanding that Kelner alert him if he was implicating the President. Which is to say, even before Barr’s actions here, Trump had taken steps Poppy Bush is not known to have done to try to prevent Flynn from implicating him in — among other things — working to undercut sanctions imposed on Russia in the wake of the 2016 election.

The evidence strongly suggests that Flynn avoided implicating Trump in the strategy of the Kislyak call, in a way that matched Trump’s public denials. Here’s how the Mueller Report concluded it did not have sufficient evidence to conclude that Flynn lied to the FBI to protect Trump.

Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

This is a matter about which Trump tried to create a contemporaneous record, one John Eisenberg thwarted to avoid obstruction exposure.

The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions.253

It’s one of the topics the White House scripted Steve Bannon to give in his HPSCI testimony.

And it goes to a question Trump blew off entirely in his response to Mueller.

i. What consideration did you give to lifting sanctions and/or recognizing Russia’s annexation of Crimea if you were elected? Describe who you spoke with about this topic, when, the substance of the discussion(s).

That is, Flynn’s limited cooperation on the Russian investigation did not implicate Trump in ways that would have exposed him legally.

That’s the background to Bill Barr’s actions since January. The difference between this and the Weinberger pardon is precisely the point. If, when prosecutors explicitly called for prison time in January, Trump had simply pardoned Flynn, it would the equivalent of the Weinberger pardon. In addition, Trump would face the direct political consequences of doing so in November.

Instead, leading up to his motion to dismiss, Barr (the architect of the Weinberger pardon, but Glenn doesn’t mention that) removed a Senate-confirmed US Attorney, installed an unconfirmed flunky to oversee career prosecutors, and then got an outsider to go “find” documents that had already been reviewed by two outside oversight entities (DOJ IG and John Durham). Then Barr overrode the career prosecutors’ decision to move to dismiss the prosecution. He has subsequently replaced the past flunky at DC USAO with another one. That is, Barr is putting people in place solely to protect those who’ve refused to testify against Trump law, and doing it in a way that limits the political cost Poppy incurred with the Weinberger pardon. It also limits what Barr himself conceded might be further exposure for Trump for obstruction charges.

Misdirection: The FBI was corrupt during the 2016 election

Glenn complains that the entire Deep State (including the NSA, which is particularly crazy given that Mike Rogers was interviewing with Trump at a time he was at odds with his bosses) acted corruptly during the 2016, with the implication that this affected Trump.

There’s another reason it’s so important to understand what happened in this case, which is that it sheds light on and directly relates to very widespread corruption on the part of the FBI, the CIA, the NSA, the DOJ and other agencies within the US security state during the 2016 election. For overtly political ends we already know of several extremely shocking revelations demonstrating abuse of power on the part of those agencies as part of the 2016 election.

This feels like just word diarrhea, so maybe Glenn hasn’t thought through what he said. But Glenn seems to suggest any corruption at DOJ and CIA and FBI (and NSA?!?!) harmed Trump.

It’s true that the FBI opened an investigation into four people associated with Trump’s campaign based off a tip from Australia, one that John Durham has said should have been opened as a Preliminary Investigation rather than a Full one (which would have no affect on techniques used).

It’s true that the Carter Page FISA application — obtained close to the end of the election and in secret — had real problems, though DOJ IG did not conclude that those errors arose from political bias. With respect to Woods Procedure violations, Page’s applications were actually better than a bunch DOJ IG later reviewed. Moreover, the worst problems on the Page applications came later, on the last two applications, under the Trump Administration. While Trump’s DOJ withdrew the probable cause determination for the third and fourth Carter Page application, it has not done so for the two earlier ones.

Meanwhile, two people have been fired for their actions in 2016. Both did things that did major damage to Hillary Clinton. Jim Comey was fired in part because repeatedly violated DOJ’s prohibitions about discussing declinations (and in part because he didn’t coordinate the declination statement with DOJ). And Andrew McCabe was fired because he confirmed the existence of an investigation into the Clinton Foundation and allegedly lied about doing so to DOJ’s IG. (Whether he actually did lie remains the subject of litigation; DOJ failed to get an indictment against McCabe and DOJ IG withheld the testimony of Michael Kortan from his report on it).

The investigation into the Clinton Foundation, unlike the investigation into Trump’s campaign, had been predicated off of GOP oppo research, Clinton Cash, and it was leaked before McCabe confirmed it.

In fact, the only evidence the DOJ IG Report provided of biased agents handling informants targeting a candidate involved that same Clinton Foundation investigation.

We reviewed the text and instant messages sent and received by the Handling Agent, the co-case Handling Agent, and the SSA for this CHS, which reflect their support for Trump in the 2016 elections. On November 9, the day after the election, the SSA contacted another FBI employee via an instant messaging program to discuss some recent CHS reporting regarding the Clinton Foundation and offered that “if you hear talk of a special prosecutor .. .I will volunteer to work [on] the Clinton Foundation.” The SSA’s November 9, 2016 instant messages also stated that he “was so elated with the election” and compared the election coverage to “watching a Superbowl comeback.” The SSA explained this comment to the OIG by saying that he “fully expected Hillary Clinton to walk away with the election. But as the returns [came] in … it was just energizing to me to see …. [because] I didn’t want a criminal to be in the White House.”

On November 9, 2016, the Handling Agent and co-case Handling Agent for this CHS also discussed the results of the election in an instant message exchange that reads:

Handling Agent: “Trump!”

Co-Case Handling Agent: “Hahaha. Shit just got real.”

Handling Agent: “Yes it did.”

Co-Case Handling Agent: “I saw a lot of scared MFers on … [my way to work] this morning. Start looking for new jobs fellas. Haha.”

Handling Agent: “LOL”

Co-Case Handling Agent: “Come January I’m going to just get a big bowl of popcorn and sit back and watch.”

Handling Agent: “That’s hilarious!” [my emphasis]

Perhaps Glenn meant to incorporate FBI’s failures involving Hillary investigations in his comments, but if so, he didn’t mention it.

False claims: The Mueller Report represented the completion of all Trump-related investigations and Mueller gave no “hint” of any leverage over Trump

Glenn continues to misrepresent what the Mueller Report was.

The Mueller investigation itself revealed that the two critical conspiracy theories that droveRussiagate” [sic] for three years number one that Donald Trump and the Trump campaign conspired with the Kremlin to interfere in the 2016 election and that number two the Kremlin exerted all kinds of blackmail leverage over Donald Trump to effectively be able to rule the United States for the benefit of Moscow using not just compromising videotapes, but also financial leverage. We know that all of that turned out to be a myth, a conspiracy theory without basis. And we know that for all kinds of reasons, particularly the fact that the Mueller investigation, after 18 months of highly aggressive subpoena driven probes into every component of those conspiracy theories ended without indicting even a single American, not one single American indicted for the crime of conspiring with Russia to interfere in the 2016 election in the Muller report didn’t even hint that let alone give credibility to let alone prove that there was any leverage being exerted over Donald Trump or the Trump White House by the Kremlin when it comes to things like blackmail average or other financial leverage.

Congratulations to Glenn for, this time, not exaggerating how long Mueller worked (22 months) like he normally does.

But Glenn continues to misunderstand both the allegations and the evidence.

First, in addition to any compromise (primarily financial, not the pee tape) tied to the crimes Mueller investigated, there was also the issue of a quid pro quo, Trump trading policy considerations in exchange for Russia’s election help.

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

That’s precisely why Flynn’s actions on sanctions were so important (as the language from the second sentencing memo makes clear). Glenn pretends that wasn’t investigated.

As regards to any “hint” of evidence of a conspiracy, the report specifically says that, “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” And when Glenn says the Report did not hint at such a relation, he necessarily is ignoring:

  • The improbably lucrative real estate deal offered to Trump with the involvement of a former GRU officer
  • The meeting offering dirt where Don Jr said the campaign would revisit a request for sanctions relief if they won
  • Paul Manafort’s sharing of internal campaign information with a GRU-connected oligarch, including at a meeting where he also discussed carving up Ukraine to Russia’s liking; Manafort continued to pursue the Ukraine effort until he was jailed
  • Roger Stone’s efforts to optimize the WikiLeaks releases which — recent releases make clear — the FBI believes or believed involved advance notice of the dcleaks and Guccifer personas, followed by Stone’s effort to pay off Assange with a pardon, starting seven days after the election

Glenn also misconstrues the scope of the investigation, which included the transition period but (probably for very important constitutional reasons), with respect to a quid pro quo or even Putin’s influence over Trump (but not obstruction), ended on Inauguration Day. Similarly, he misconstrues the scope of the Report, which explicitly said it did not include counterintelligence issues like blackmail (something I’ve tried to help Glenn correct his errors on before).

Most importantly, Glenn again claims, in spite of abundant public records to the contrary, that Mueller reported after finishing everything up. That ignores the twelve sealed referrals, of which just the George Nader prosecution has been disclosed (though one surely relates to Jerome Corsi and another probably pertains to Stone).

It ignores documented evidence of ongoing investigations (another thing I already laid out for Glenn’s benefit):

It is a fact, for example, that DOJ refused to release the details of Paul Manafort’s lies — covering the kickback system via which he got paid, his efforts to implement the Ukraine plan pitched in his August 2, 2016 meeting, and efforts by another Trump flunkie to save the election in the weeks before he resigned — because those investigations remained ongoing in March [2019]. There’s abundant reason to think that the investigation into Lev Parnas and Igor Fruman and Rudy Giuliani, whether it was a referral from Mueller or not, is the continuation of the investigation into Manafort’s efforts to help Russia carve up Ukraine to its liking (indeed, the NYT has a piece on how Manafort played in Petro Poroshenko’s efforts to cultivate Trump today).

It is a fact that the investigation that we know of as the Mystery Appellant started in the DC US Attorney’s office and got moved back there (and as such might not even be counted as a referral). What we know of the challenge suggests a foreign country (not Russia) was using one of its corporations to pay off bribes of someone. [Note: I have reason to believe, given a redaction in the recently-released Rosenstein scope memo, that this investigation is ongoing.]

It is a fact that Robert Mueller testified under oath that the counterintelligence investigation into Mike Flynn was ongoing.

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

That’s consistent with redaction decisions made both in the Mueller Report itself and as recently as last week.

And it ignores documents released in the last month that show that, in September 2018, the government took a number of steps in a Foreign Agent investigation that were deliberately hidden from Stone (and all the rest of us). The redactions in those filings indicate the investigation remains ongoing. In addition to Foreign Agent charges, it includes conspiracy among the crimes being investigated. The prosecution of Stone on False Statements charges was, in part, an effort to obtain Stone’s notes of his election-year meetings with Trump and his encrypted communications in support of this more serious investigation.

Based on very recent documents, DOJ continues to investigate Trump’s rat-fucker for conspiracy and Foreign Agent charges. The Mueller Report clearly does not reflect the end result of these investigations, including with regards to whether Mueller believed any of Trump’s aides had conspired with Russia or its surrogates.

False claim: FBI had no basis for believing Carter Page was an Agent of Russia

Glenn claims that the FBI had no reason to believe Carter Page was an Agent of Russia.

Perhaps the most egregious of it concerns the spying that was done by the FBI by the Justice Department on US citizen and former Trump advisor Trump campaign advisor Carter page. It was revealed throughout 2017 and into 2018 that the FBI had obtained FISA warrants to spy on the communications of Carter Page. spying on the email and telephone communications of a US citizen is one of the most draconian acts that the FBI and the US government can do. And yet they did it to Carter Page after shortly after he had served as an advisor to the Trump campaign yet while the presidential campaign was still underway, and for two years we heard Carter Page is clearly an agent of the Russian government. He was clearly a key cog in the conspiracy to conspire between Trump the Trump campaign and Russia to interfere in the election. We heard it vehemently denied that the Steele dossier, the unproven unvetted mountain of allegations served as a basis for the FISA allegation and yet, after a very comprehensive investigation, by the Inspector General of the Department of Justice in 2019, a comprehensive report was issued that concluded that not only was there no basis for believing that Carter Page was an agent of the Russian government, but the FBI lied to the FISA court, in order to obtain the warrants, to eavesdrop on him an incredibly serious scandal for the FBI to spy on somebody who had been associated with a rival campaign during a presidential election, when it turned out that not only was there no basis for doing so, but that they actually lied to the court in order to obtain those warrants, and it was the Mueller Report itself. That made clear that there was never any reason to believe, contrary to the definitive assertions of the media and political consensus that we heard for years, there was no reason to believe that Carter Page was ever an agent of the Russian government.

The actions of the FBI on the Carter Page FISA applications are inexcusable (note, Glenn gets the dates of the FISAs wrong, but that’s not important). It’s clear that Kevin Clinesmith, in June 2017, affirmatively misrepresented information key to the application. And after the FBI started learning of problems with the Steele dossier, largely in 2017, they did not incorporate that into their applications about Page. Nothing excuses that.

The FBI opened a counterespionage investigation into Carter Page on April 6, 2016, long before that application, based off actions that preceded his designation as a Trump advisor.

The IG Report explained why there was basis to investigate Page as a foreign agent: because he not only willingly shared non-public economic information with known Russian intelligence officers, extending beyond the time he was closed by the CIA as an approved contact (and CIA did not know all instances in which he had done so), but when his role in the Evgeny Buryakov prosecution became clear, Page seemed to affirmatively seek to resume contact with the Russians. In addition, it (and released 302s) made it clear that Page tried to deny doing so when asked by the FBI about this in a follow-up. The DOJ IG Report also laid out how Page believed he would cash in on his ties with Russia. And the 302s show that the FBI did get information from witnesses that seemed to corroborate some of the claims in the Steele dossier (or at least indicate that Steele was getting the same rumors that some of the people who set up Page’s trips to Russia got). The Mueller Report also shows that Page was representing himself as Trump advisor on Ukraine policy during his December 2016 trip to Moscow, actions that (if they weren’t sanctioned by Trump, as they appear not to have been) damaged the President-elect. The IG investigators did not review all the intelligence obtained via the FISA order.

Also of note, DOJ IG did not understand the predication of the investigation against Page until after the report was published, misunderstanding that 18 USC 951 is a different crime than FARA, and as a result conducted a First Amendment analysis that would have been passed based off the economic espionage actions with known Russian intelligence officers.

The Mueller Report that Glenn treats as the end all and be all of the matter makes it clear the government still had questions about what happened with Page in Russia (and released 302s make it clear the government wasn’t able to account for all of Page’s time in Moscow).

The Office was unable to obtain additional evidence or testimony about who Page may have met or communicated with in Moscow; thus, Page’s activities in Russia-as described in his emails with the Campaign-were not fully explained.

And a redacted passage in the declinations section of the report (page 183) clearly provides more context.

False claim: FBI planted Stefan Halper within the Trump campaign

After a long rant about what a terrible person Stefan Halper is (which is beyond my focus), Glenn claims that the FBI planted him “within” the Trump campaign.

And yet Halper pops up in the middle of the Russia gate investigation to serve as an informant on the part of the FBI essentially a spy planted within the circle of Trump campaign officials to approach George Papadopoulos and to approach Carter Page and report back what he was hearing and finding to the FBI. Exactly what has long been claimed that the FBI had essentially planted a spy, a former CIA operative with close ties to the Bush’s within the Trump campaign during the course of the presidential election.

The DOJ IG Report describes that when the FBI first reached out to Stefan Halper to serve as an informant in the investigation, they were focused exclusively on Papadopoulos. But then Halper revealed he had already met Carter Page in July, and Page had asked him to join the campaign; Halper was already expecting a call from someone senior (presumably Sam Clovis) about joining the campaign, but said he did not want to join the campaign.

Case Agent 1 told the OIG that the team asked Source 2 about Papadopoulos, but Source 2 said he had never heard of him. The EC documenting the meeting reflects that Source 2 agreed to work with the Crossfire Hurricane team by reaching out to Papadopoulos which would allow the Crossfire Hurricane team to collect assessment information on Papadopoulos and potentially conduct an operation.

Case Agent 1 told the OIG that Source 2 then asked whether the team had any interest in an individual named Carter Page. Case Agent 1 said that the members of the investigative team “didn’t react because at that point we didn’t know where we were going to go with it” but asked some questions about how Source 2 knew Carter Page. Source 2 explained that, in mid-July 2016, Carter Page attended a three-day conference, during which Page had approached Source 2 and asked Source 2 to be a foreign policy advisor for the Trump campaign. According to the EC summarizing the August 11, 2016 meeting, Source 2 said he/she had been “non-committal” about joining the campaign when discussing it with Carter Page in mid-July, but during the August 11, 2016 meeting with the Crossfire Hurricane team, Source 2 “stated that [he/she] had no intention of joining the campaign, but [Source 2] had not conveyed that to anyone related to the Trump campaign.” Source 2 further stated he/she “was willing to assist with the ongoing investigation and to not notify the Trump campaign about [Source 2’s] decision not to join.” Source 2 also told the Crossfire Hurricane team that Source 2 was expecting to be contacted in the near future by one of the senior leaders of the Trump campaign about joining the campaign.

Everyone on the team specifically said that if Halper did join the campaign they would not use him as an informant.

All of the FBI witnesses we interviewed said that they would not have used Source 2 for the Crossfire Hurricane investigation if Source 2 had actually wanted to join the Trump campaign. SSA 1 said he did not remember anyone on the Crossfire Hurricane team advocating for Source 2 to actually join the Trump campaign and told the OIG he was relieved that Source 2 did not want to join the campaign “at all.” Strzok told the OIG his reaction was “no, no, no, no, no, no…. [O]h god no. Absolutely not” when he learned that Source 2 had been invited to join the Trump campaign. Case Agent 1 told the OIG that if Source 2 had joined the campaign, the Crossfire Hurricane team would not have used Source 2 “because that’s not what we were after.”

It is true that Halper had taped interviews with Page (who had already reached out to Halper and who subsequently would invite Halper to join his Russian-funded think tank), Clovis, and Papadopoulos during the campaign. But the IG Report makes clear that these actions had the proper approvals and did not focus on campaign activities.

Unsubstantiated claim: Halper accused Svetlana Lokhova of being a honey pot entrapping Flynn

Meanwhile, Glenn suggests Halper accused Svetlana Lokhova honey trapped Flynn.

But also, it was the same Stephen Halper that first tried to raise concerns that General Flynn had should have his patriotism and his loyalties held under suspicion, because he claimed that General Flynn was speaking with and working with a Russian scholar, a woman named Svetlana Lokhova, who was at Oxford, and he was concerned Stephen Harper was he said that Svetlana Lokhova was basically a honeypot a sexpot, designed to entrap General Flynn to turn into a spy.

There are two aspects to this claim: that Halper’s allegations about Lokhova were part of the reason the FBI investigated Flynn and that Halper specifically accused Lokhova of being a honey pot.

The EC opening the investigation into Flynn shows that Lokhova was not included in the predication of the investigation against Flynn, which included his role on Trump’s campaign, his TS/SCI clearance, his acceptance of money from Russian state entities like RT, and his trip to Moscow in December 2015.

The draft closing document that Glenn himself thinks is a smoking gun only describes one stream of CHS reporting that came in on Flynn — which likely is that of Halper. That stream amounted to very little, was not reported before Halper was asked (contrary to claims Sidney Powell has made), and if this is Halper, the lead was chased down and dismissed.

That is, either FBI didn’t even consider Lokhova, or if they did, they didn’t give it any credence, the exact opposite of what Glenn claims happened.

Glenn also made an argument about Maria Butina in there, which I’ve dismantled when Matt Taibbi made it.

Claim without evidence: Barack Obama disliked Flynn

Amid a section laying out what a staunch critic of Obama Flynn was, Glenn also claims that Obama strongly disliked Flynn.

It’s really not an overstatement to say that President Obama after a very short period of time couldn’t stand Michael Flynn, Michael Flynn is exactly the kind of general and exactly the kind of official that President Obama strongly dislikes. And the feeling was very mutual.

[a very very long-winded presentation of how Flynn feels about Obama but not vice versa]

What was important and what is important for the subsequent events is the fact that President Obama seethes but seethes with contempt for General Flynn and the feeling was very mutual.

I know of no evidence to support this. Public reports show Flynn was fired for performance reasons, and most accounts say that James Clapper made the decision.

False claim: Flynn worked for “interests connected to the Turkish government”

In a passage on Flynn’s consulting work, Glenn misrepresents what Flynn himself has said about the work.

And they represented numerous clients as people who leave the military and intelligence world often do, including foreign governments, including interests connected to the Turkish government, and that consulting work that General Flynn did at times was not properly disclosed, as it is very common for consultants not to disclose their work. But that was the work that he was doing between 2014 when he left the Obama administration and 2016 in the middle of 2016 when he became an important surrogate for the Trump presidential campaign.

This passage suggests that Flynn did not work directly for the Turkish government and did that work before he became a chief surrogate for Trump.

The record shows the engagement with Ekim Alptekin started in late July, after Flynn had already figured prominently in Trump’s convention. Just days before Flynn sat in on Trump’s first classified briefing, he responded to an email from Alptekin describing his meetings with two Turkish ministers on the project by saying, “Thank you Ekim for your kind update. This is an important engagement and we will give it priority on our side.” Alptekin responded by describing his meeting with the two Turkish ministers and stating, “I have a green light to discuss confidentiality, budget and the scope of the contract.”

Moreover, unless Flynn perjured himself before the grand jury, he was not just working for “interests connected with the Turkish government,” he was working for the Turkish government.

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

Of particular note, one of the lies Flynn told Covington as they prepared his FARA filings was that he wrote the November 8 op-ed published under his name as part of an effort to boost the Trump campaign’s war on terror cred. In reality, Flynn did not write the op-ed at all, he simply put his name to it.

Date and substance problems describing the sanctions

In a long passage in which Glenn suggests Russian interference isn’t proven, Glenn also muddles a lot of the facts regarding Flynn’s calls with Sergey Kislyak.

On December 29, President Obama, the Obama administration announced a new series of sanctions, as well as the expulsion of various diplomats aimed at Russia in order to punish Russia for what the Obama administration said was Russia’s interference in the 2016 election. It was Obama’s last one of his last acts on the way out the door was to give Democrats what they wanted by sanctioning Russia, imposing imposing new sanctions on Russia and expelling Russian diplomat as retaliation or punishment for what they claim was Russian interference in the 2016 election. [my emphasis]

Both the GOP-led House Intelligence Committee and the GOP-led Senate Intelligence Committee have issued reports confirming the Intelligence Community’s assessment that Russia interfered in the election. And yet Glenn here suggests this was just an empty Obama Administration claim.

Moreover, Glenn misrepresents the full basis for the sanctions, which also retaliated for escalating Russian harassment of US diplomats in Russia.

And while it’s a minor issue, Glenn gets the date of the sanctions wrong. They were first reported on December 28, which is important because Kislyak reached out to Flynn on that day, not the other way around (the timing of this is central to problems with the story Flynn told, which was designed to hide his consultations with people at Mar-a-Lago), as did someone from the Russian Embassy.

Elaboration: Claims about the conversation

In his description of the actual calls between Flynn and Kislyak, Glenn elaborates on the public record, suggesting Flynn talked about what might happen after Inauguration with regards to sanctions (rather than just setting up a call and attending a conference in Astana).

Once the Obama administration announced the sanctions and the expulsion of diplomats, General Flynn, ready to take office as National Security Adviser, called the Russian ambassador to the United States Sergey Kislyak on two separate occasions on that day, December 29. When these new reprisals were announced, essentially to tell him Look, there’s no reason for you to overreact. There’s no reason for you to retaliate. We’re about to take office in three weeks, we’re going to improve relations with you, we’re going to have a whole new relationship, so there’s no reason for you to do anything now that will force us in turn to retaliate. He was essentially trying to tamp down tensions to lay the groundwork for one of President Trump’s President Elect Trump’s campaign promises and foreign policy objectives which was to improve relations with Russia,

While it’s possible this is the way the call occurred, it’s not supported by the public record. The Mueller Report describes the conversation this way:

With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

The detail that Flynn suggested Russia respond “in reciprocal manner” is important because Russia did even less than that.

While Glenn says there were two calls between Flynn and Kislyak, he doesn’t describe the second one from these days, which is critical background to why the FBI focused on Flynn because of the calls. The Mueller Report describes it this way:

On December 31, 2016, Kislyak called Flynn and told him the request had been received at the highest levels and that Russia had chosen not to retaliate to the sanctions in response to the request. 1268

The transcripts themselves remain classified, as do Sally Yates’ descriptions of what was most alarming about these transcripts.

So we don’t yet know why reading the transcripts rather than hearing about the call elicited strong reactions from those who did read them, but they did, including not just people in the Deep State, but also Reince Priebus and Mike Pence.

Misrepresentation: It is normal for incoming National Security Advisors to reach out to their counterparts

Glenn correctly claims that it is normal for incoming national security officials to reach out to their counterparts. It is! He doesn’t say what made Flynn’s actions unusual, which is what increased the urgency about them: the lies he told to others within the Administration about the calls.

It is extremely common for transition teams and for national security officials who are incoming and an administration to reach out to their counterparts to try and create a new positive relationship. And that’s what General Flynn did by twice calling Ambassador Kislyak, whom he had known from his experience working as director of the CIA, the Defense Intelligence Agency on December 29. Now those two conversations that General Flynn had with Ambassador Kislyak were being monitored and recorded by the National Security Agency something that is extremely common is standard practice, as General Flynn knows and knew, because the NSA monitors and records the calls of as many officials as they possibly can, particularly in governments they consider to be adversarial such as Russia.

For some reason (perhaps so Glenn can liken surveilling US-based foreign officials with surveilling allies overseas) Glenn claims NSA picked up this intercept. FBI did.

But his silence about what makes Flynn’s actions here is utterly inexcusable: Flynn lied about what he had done to Mike Pence and others, which raised real questions at FBI about whether he was freelancing when he made the call (which might rightly be regarded as damage to Trump). As Mary McCord testified, that’s what made these calls different.

It seemed logical to her that there may be some communications between an incoming administration and their foreign partners, so the Logan Act seemed like a stretch to her. She described the matter as “concerning” but with no particular urgency. In early January, McCord did not think people were considering briefing the incoming administration. However, that changed when Vice President Michael Pence went on Face the Nation and said things McCord knew to be untrue. Also, as time went on, and then-White House spokesperson Sean Spicer made comments about Flynn’s actions she knew to be false, the urgency grew.

Note, too, some other small details here. Flynn knew Kislyak from paying a call before his RT gala trip; he denied any memory of meeting him in connection with his trip to Russia sponsored by the GRU. But he also made calls to Kislyak during the election that he attributed to condolence calls, which is the same excuse he used to claim his December calls weren’t about undermining US policy. It’s not public whether those other calls match Flynn’s claimed explanations for them.

False claims: Strzok and Page talked about needing to impede Trump and “discovered” these transcripts

Glenn next tells a story of the discovery of the Flynn-Kislyak transcript where the villains of his story play the central role, actually trolling through the FBI collections and discovering the conversations.

The NSA was spying on so General Flynn obviously knew and he later told the FBI that he knew that those conversations were being monitored or recorded, but they were being monitored and recorded because the NSA had successfully obtained access to Ambassador Kislyak’s communications knowledge of those two telephone calls that Michael Flynn had with Ambassador Kislyak made its way to two particular officials with the FBI, Peter Strzok, and Lisa Paige, who became very controversial later on both because they were having an affair with one another, an extramarital affair, but more importantly, because there were all kinds of email exchanges between the two throughout the 2016 presidential election as they were participating in the investigation of the Trump campaign, where they were explicitly talking about the need to make certain that Donald Trump lost and then the need once he won to impede him to damage him and to try and undermine him anyway that they can. So it was these two FBI officials who discovered these conversations that General Flynn had with Ambassador Kislyak.

There are a lot of small details here that Glenn gets wrong.

As noted, the calls were monitored by FBI, not NSA (which is not a significant difference but notable since Glenn and Snowden conflate foreign intelligence and domestic law enforcement).

The FBI discovered the calls because the IC was trying to figure out why Putin didn’t respond as expected.

And so the last couple days of December and the first couple days of January, all the Intelligence Community was trying to figure out, so what is going on here? Why is this — why have the Russians reacted the way they did, which confused us? And so we were all tasked to find out, do you have anything that might reflect on this? That turned up these calls at the end of December, beginning of January.

There’s not a shred of reason to believe that Strzok or Page “discovered” these conversations (Comey says analysts did).

I assume Glenn’s descriptions of the emails about “making certain Trump lost” are some text, not email, exchanges explained at length in the Midyear Exam IG Report. The most damning text dates to August 8, 2016, shortly after Crossfire Hurricane was opened.

“[Trump’s] not ever going to become president, right? Right?!” Strzok responded, “No. No he’s not. We’ll stop it.”203

Another damning text dates to August 15, 2016, recounting a dispute in Andy McCabe’s office about how aggressively to conduct the Crossfire Hurricane investigation.

“I want to believe the path you threw out for consideration in Andy’s office—that there’s no way he gets elected—but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40….”

Importantly, Strzok lost his bid to investigate more aggressively during the election, just like he lost his bid to investigate Hillary as aggressively as possible. While these are utterly damning (even with Strzok’s explanations of them), as the later IG Report made clear, the report concluded — having read all the Page and Strzok texts — neither Strzok nor Page were in a position to unilaterally make decisions.

The only known text that might remotely suggest either was trying to “impede him to damage him” pertains to a discussion about whether Strzok should join the Mueller investigation. In it, he said he didn’t think there was much there.

“For me, and this case, I personally have a sense of unfinished business. I unleashed it with MYE. Now I need to fix it and finish it.” Later in the same exchange, Strzok, apparently while weighing his career options, made this comparison: “Who gives a f*ck, one more A[ssistant] D[irector]…[versus] [a]n investigation leading to impeachment?”204 Later in this exchange, Strzok stated, “you and I both know the odds are nothing. If I thought it was likely I’d be there no question. I hesitate in part because of my gut sense and concern there’s no big there there.”

If Glenn is relying on this (he didn’t cite anything), Glenn claims that a text showing that the guy whose goal (he says) was to impede Trump didn’t think there was much implicating Trump, and he uses that as proof he was out to sabotage Trump. It seems, instead, to be proof that Strzok didn’t let his view of Trump cloud his assessment of the evidence, a conclusion backed by other known details of the investigation.

False claim: Lisa Page and Peter Strzok decided to keep the investigation into Flynn open

Glenn’s interpretation of the texts showing Strzok’s actions, especially, claims both that Comey didn’t want to investigate Flynn and did want to. At first, for example, Glenn suggests that Comey had ordered — rather than authorized — the closure of the investigation. It suggests some “snafu” rather than bureaucratic lassitude delayed the closure. And it suggests the Page and Strzok led this decision-making.

James Comey and the leadership of the FBI had decided to close the only pending investigation that the FBI had into General Flynn, which was part of the Operation Hurricane investigation, the investigation about improper ties between the Trump campaign and the Russian government James Comey and the FBI leadership concluded there was no evidence to believe that General Flynn had any improper contacts or connections with let alone had conspired with the Russian government during the election and as ordered that investigation closed and filed the paperwork in early January. But when Peter Strzok and Lisa Page got hold of these conversations that Ambassador Kislyak had had with General Flynn and decided they wanted to investigate him for it and use it against him, they discovered in early January that the order that James Comey and FBI leadership had given to close the investigation against Michael Flynn never was finalized because of a bureaucratic snafu. That investigation contrary to the decision that the FBI had remained open and what the newly discovered documents reveal, among other things, is that Peter struck and Lisa page celebrated. The bureaucratic snafu was good luck because it meant that there was now a still a pending investigation that was supposed to have been closed into General Flynn, who they could latch on to and hook on to in order to try and investigate him. Now because of these new conversations that he had with Ambassador Kislyak.

Comey testified that he authorized — not ordered — the investigation to be closed.

At that point, we had an open counterintelligence investigation on Mr. Flynn, and it had been open since the summertime, and we were very close to closing it. In fact, I had — I think I had authorized it to be closed at the end of January, beginning — excuse me, end of December, beginning of January. And we kept it open once we became aware of these communications. And there were additional steps the investigators wanted to consider, and if we were to give a heads-up to anybody at the White House, it might step on our ability to take those steps.

[snip]

MR. COMEY: To find out whether there was something we were missing about his relationship with the Russians and whether he would — because we had this disconnect publicly between what the Vice President was saying and what we knew. And so before we closed an investigation of Flynn, I wanted them to sit before him and say what is the deal?

The part of the texts that Glenn relies on to say Page and Strzok celebrated the case hadn’t been closed makes it clear that incompetence, not any snafu, had delayed the closure. It also makes clear that these decisions were coming from the 7th floor (that is, McCabe or Comey).

Other critics of these actions rely on that 7th floor detail to substantiate their claim of a great plot, but even imagining there was one, it would mean Page and Strzok don’t have the decisive role Glenn says they did.

Misrepresentation: Jim Comey wanted to investigate a person rather than a call

Both in the above passage and a following one, Glenn suggests that the existence of these calls was used as excuse to investigate Flynn, rather than the existence of transcripts showing the incoming NSA altering Putin’s behavior would always be reason to investigate.

James Comey wanted to investigate General Flynn. He wanted to do what he could use these newly discovered calls Against General Flynn, but the Justice Department then led by acting director, acting Attorney General Sally Yates, believe that it was improper to investigate what was about to be a high level White House official without notifying the Trump transition team and then the Trump White House that the FBI was investigating what was seemed to become a very high level official, and they thought about it and they thought about it until James Comey without notifying the attorney general or the Justice Department officials who were opposed to it sent FBI agents to general Flynn’s office with the intention of questioning him about the telephone calls that he had with the Russian ambassador,

As the texts above make clear, at first no one knew what to do about these calls.

Once again, Glenn doesn’t mention the role of Flynn’s lies to Mike Pence in leading everyone, including DOJ, to treat the transcripts differently.

MR. COMEY: To find out whether there was something we were missing about his relationship with the Russians and whether he would — because we had this disconnect publicly between what the Vice President was saying and what we knew. And so before we closed an investigation of Flynn, I wanted them to sit before him and say what is the deal?

As Yates described it, things heated up after it became clear Flynn had lied.

In early January, DOJ began to “ramp up” their discussions regarding Flynn, in reaction to a David Ignatius column describing the phone calls in early January 2017, followed by a statement where Sean Spicer around January 13, in which Spicer denied there was sanctions talk on the calls and stated that the Flynn calls were logistical. The false statement by Spicer, which Yates assessed to be the White House “trying to tamp down” the attention, caused DOJ to really start to wonder what they should do.

On January 13, 2017, things “really got hot.” On that day, Vice President Pence was on Face the Nation and stated publicly he’d spoken to Flynn and had been told there had been no discussion of sanctions with Kislyak. Yates recalled she was in New York City that weekend, and received a call from McCord notifying her of the statements. Prior to this, there had been some discussion about notifying the White House, but nothing had been decided. Until the Vice President made the statement on TV, there was a sense that they may not need to notify the White House, because others at the White House may already be aware of the calls.

There are redactions in Yates’ testimony that likely hide critical details. But Yates did concede that,

Generally, when the Intelligence Community learns of a “criminal investigation,” their reaction is to back off and defer to the FBI; [redacted] Yates did not herself believe the investigation would be negatively impacted, but Brennan and Clapper backed off after their talk with Comey.

False claim: The FBI made Flynn tell lies he wasn’t already telling

Glenn then turned to Bill Priestap’s notes, quoting from the part that reflects a rethinking about whether they should share Flynn’s own words with him, rather than the part that lays out the overall goal of the interview. 

The day that FBI agents including Peter Strzok were sent to General Flynn to interrogate him about the calls that he had with General Kys — Ambassador Kislyak, and those handwritten notes made clear that the FBI was overtly flirting with an entertaining if not outright, executing an interrogation with corrupt and improper motives specifically to purposely induce General Flynn to lie to them so that they could use those lies to then punish him or turn him into a criminal to handwritten notes from the FBI official Bill Priestap specifically explicitly state quote, what’s our goal truth slash admission or to get him to lie so we can prosecute him or get him fired? This is revealing that the FBI had no real interest in interviewing General Flynn about what he said to Ambassador Kislyak because they already knew what he said since they had the transcripts of those conversations the result of the surveillance that was done on those calls, the only conceivable objective to go and interview him was to purposely induce him to lie not show him those transcripts, asked him what he talked about in that conversation that he had almost a month earlier, and the hope of getting him to lie so that they could get him fired. Not exactly a legitimate FBI objective, or turn him into a criminal create a new crime by using their power of interrogation to induce him to lie and then charged him with lying to the FBI. Whatever the ultimate motive was, these notes are highly incriminating about what the FBI’s real intentions were.

Again, Glenn said nothing about Flynn’s lies to Pence, which undermines the claims Glenn makes here. The public record at the time supported a suspicion that Flynn had gone rogue in his call to Kislyak, and was hiding what he had done with the Administration. Indeed, the public record still claims that Trump did not instruct Flynn to take these actions (though he applauded them after the fact).

That background is particularly important because the notes are consistent with several other contemporary pieces of documentation, including what Bill Priestap told Mary McCord contemporaneously and what Comey said a few months later. which show the purpose of the interview was to see whether Flynn would be honest about his conversations with Russia, particularly in light of Flynn’s apparent lies to Mike Pence and Sean Spicer.

That’s the very same purpose for the interview laid out in the second sentencing memorandum approved by Bill Barr’s DOJ just months ago.

And Glenn ignores how those notes also show that FBI backed off its initial plan not to share any details from the transcripts, but instead to quote his words back to him, effectively sharing the content of it. The 302 shows that the FBI Agents did that. In one instance, Flynn even thanked the FBI Agents for their reminder.

The interviewing agents asked FLYNN if he recalled. any discussions with KISLYAK about a United Nations (UN) vote surrounding the issue of Israeli settlements. FLYNN quickly responded, “Yes, good reminder.” On the 22nd of December, FLYNN. called a litany of countries to include Israel, the UK, Senegal, Egypt, maybe France and maybe Russia/KISLYAK.

But each time they did so with respect to Russia, the 302 shows, Flynn lied.

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which the expulsions were discussed, where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian response reciprocal, or not to engage in a “tit-for-tat.” FLYNN responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.'” The U.S. Government’s response was a total surprise to FLYNN.

Glenn also utterly and hilariously misrepresents what happened between that initial interview, the investigations that revealed conversations with Mar-a-Lago that Flynn had lied about in the interview, and when Flynn accepted a plea deal in November 2017 because he faced up to 15 years on the Foreign Agent charges.

Conflation of the leak that the Steele dossier had been briefed and the sharing of the Steele dossier

Glenn then moves onto the Steele dossier, suggesting that the person who leaked a detail from Trump’s briefing had the intent of leading BuzzFeed to publish it, and conflating the public reporting on Trump with the FBI’s investigation of him.

CNN and CNN on January 10, reported that the director of the FBI had gone and briefed President Elect Trump to inform him of highly compromising information in the hands of the Kremlin. But this but CNN said that they weren’t going to describe the nature of that compromising information because they hadn’t been able to vet it or determine whether or not it was really true. But that was a limitation that BuzzFeed quickly decided that they were not going to be constrained by him so very predictably, and almost certainly intentionally from the perspective of whoever leaked this briefing. BuzzFeed then published what is now called the Steele dossier. And that forever altered the course ofRussiagate” [sic]those allegations those scurrilous and ultimately unproven allegations in the Steele dossier. About the Kremlin holding blackmail information over Trump about the sexual and the financial nature and all of the other highly inflammatory inflammatory material ended up shaping what becameRussiagate” [sic] and at least the first two to three years of the Trump presidency leaked by the very, very same people who were in the process of now exploiting the failure to close the Flynn investigation to also investigate.

Glenn seems to insinuate here that FBI leaked the Steele dossier to Buzzfeed. David Kramer did (and in fact, FBI didn’t have one of reports in the dossier that got leaked yet, so they couldn’t have leaked it).

His claim that the Steele dossier changed the Russian investigation is precisely the claim Paul Manafort started pushing after meeting a top Deripaska aide in Europe in early 2017, suggesting that was the point if the dossier was Russian disinformation. But there’s a difference between saying that the dossier was the basis of public reporting on Trump — in the same way that Clinton Cash was the basis of public reporting on the Clinton Foundation — and saying it drove the FBI’s work in the wake of its leak.

It is clear that the FBI used the Steele dossier to establish probable cause in the Carter Page applications even after it learned information that should have led it to stop. The FBI also used the publication of the dossier as an excuse to interview George Papadopoulos. But there’s no basis to believe it impacted the others, including Flynn. For example, the draft closing document on Flynn only made one reference to a CHS (which is how FBI treated Steele) and it clearly wasn’t a reference to Steele. And the predication of the investigation into Michael Cohen made no mention of the dossier, even though the most inflammatory claims in the dossier were about him.

So while the dossier may have mattered to Glenn and other people not actually following the evidence closely, aside from the very notable example of the Carter Page FISA application, the FBI primarily used it as an excuse to interview George Papadopoulos. For everyone else, there’s no evidence it played a big role.

Claim without evidence: David Ignatius should go to prison for his Kislyak leak

In his treatment of the inexcusable leak to David Ignatius, Glenn suggests that leak was more criminal than anything else (even though Glenn himself has published such information), claiming that someone leaked “NSA intercepts.”

The Washington Post David Ignatius, who has built a career, receiving leaks from the CIA and publishing what the CIA wants him to publish published a column in which he revealed for the first time that the NSA had monitored the conversations between General Flynn on the one hand and Ambassador Kislyak on the other and after that, the contents of the communications between General Flynn Ambassador Kislyak were elite to both the Washington Post and the New York Times, which published in detail what those communications were. Now the reason that’s so striking is because under the law, it is a crime, obviously, to leak classified information of any kind, any information that’s classified, if somebody inside the government leaks it to a journalist, that’s a crime. But there’s only a narrow number of types of information that can become a crime for the journalists to actually publish it. The most serious kind of information is not only a crime for that leaker to leak to the journalists, but for the journalists to publish it. And one of those types of information is exactly the type that people inside the intelligence community leaked in order to destroy the reputation of General Flynn, namely intercepts by the NSA, of the communications of foreign officials. And the reason that the intelligence community in the law regards leaks of that type. So grave is such a grave offense is obvious because it has the potential to ruin the ability of the NSA to continue to monitor that information by alerting the adversary that they have access to that communication. If you look at the relevant law, which is title 18 of the US Code Section 798 that specifies when it’s a crime not just to leak classified information, but for a journalist to publish it. It specifies exactly the kind of information that people inside the government are leaking against General Flynn that’s how far they were willing to go that law reads quote, whoever knowingly and willfully communicates or otherwise makes available to an unauthorized person or publishes any class government shall be fined under this title or imprisoned not more than 10 years, or both. Now, you can see it explicitly provides that the crime is not just leaking. But publishing it’s one of the few types of leaks where you can actually criminalize the journalist now I’m against this law.

As noted above, these were FBI intercepts (though that likely doesn’t change the Espionage Act analysis).

I don’t defend the leak to Ignatius (and raised questions about it contemporaneously). But it’s important to note several things: it is sourced in a way — senior US government official — that could be second-hand (which is what Comey seemed to believe), could be an Original Classification Authority (Flynn’s team has accused James Clapper of the leak), which would not actually be a leak or illegal — it would be directly equivalent to many of the releases Ric Grenell has recently made — or could be a member of Congress. Glenn accused a vague “they” of leaking it with no evidence that the FBI did it.

Indeed, one thing Barr’s DOJ reclassified in the motion to dismiss is a detail from McCabe’s notes of his call with Flynn reflecting real concern about the leaks.

This was first shared with Judge Sullivan in unredacted form when he took Flynn’s plea in December 2018. This version is, in some respects, more classified than a version released last May. For example, last May DOJ revealed that McCabe agreed with Flynn that leaks were a problem.

Today’s version redacts that line as classified.

Similarly, the frothy right has totally misrepresented Strzok and Page’s concerns about the leak of Carter Page’s FISA order.

Also, there’s nothing in the Ignatius column that necessarily proves he got the content of the call, which is a closer case than Glenn makes out here under 18 USC 798.

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

Glenn has published a great deal of information that would violate this law, claiming it served the public interest. He is here substituting his judgment for Ignatius and the leaker in the same way others have questioned his and Snowden’s judgment.

Mike Flynn Collaborator Barbara Ledeen’s Past Role in Producing “New” Evidence

There are two grounds on which Emmet Sullivan, even ignoring other procedural grounds, might reject the substance of Bill Barr’s motion to withdraw the Mike Flynn prosecution.

Most of the focus has been on materiality. The Timothy Shea-signed motion’s argument about materiality is thin and conflicts with arguments Bill Barr’s DOJ made on the same issues last fall. More importantly, the argument relies on a claim that — as I noted this morning — the government not only didn’t substantiate by citing to the call transcripts, but which the government actually provided evidence that rebuts the claim.

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI.

In a NYT op-ed over the weekend, Mary McCord refuted the materiality claims made in the filing. In a WaPo op-ed, Chuck Rosenberg recites the long list of people who have already said the lies were material:

  • Donald Trump
  • Mike Pence
  • Sally Yates
  • Mary McCord
  • Mueller’s prosecutors
  • Judge Rudolph Contreras
  • Judge Emmet Sullivan
  • Mike Flynn

Sullivan has plenty before him to dismiss the DOJ’s new claims about materiality.

Still more questions about whether any of this is “new”

But there’s another problem with the motion to dismiss, one I keep coming back to. Central to the motion’s logic is that DOJ found “new” information that caused it to change its mind about the Flynn prosecution.

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.” Ex. 1 at 4, FBI FD-1057 “Closing Communication” Jan. 4, 2017 (emphases added)

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

[snip]

Based on an extensive review of this investigation, including newly discovered and disclosed information attached to the defendant’s supplemental pleadings, see ECF Nos. 181, 188-190, the Government has concluded that continued prosecution of Mr. Flynn would not serve the interests of justice.

This motion cites to two documents (one, two) from Covington that would be new to the government. The Bates numbers on both, however, indicate this was almost certainly not new production to Flynn (the belated discovery Covington turned over in recent weeks should have Bates numbers in the 600,000 range, and these have Bates’ numbers under 200,000; moreover, Covington had already turned over everything pertaining to Bijan Kian, as any discussion of Mike Jr would be). If Flynn had them, he could have submitted them last fall or in January when he made his own arguments about being railroaded — but had he done so, it would have been (further) proof Flynn perjured himself if they showed the government had made such promises, because he denied it the first time he pled guilty. Moreover, these two documents are entirely unrelated to anything in this motion, which pertains exclusively to Flynn’s lies in his January 2017 interview.

The other newly disclosed documents (the Shea motion cites the same ones twice, a hint that whoever actually wrote the motion wasn’t really relying on the documents) are all FBI documents, and so, by definition, were all in possession of the government. While DOJ might try to claim that DOJ didn’t have the documents, the documents pertain to two issues — January 23, 2017 and January 24, 2017 meetings discussing what to do about Flynn, and communications between Peter Strzok and Lisa Page — that have been repeatedly reviewed by DOJ, which means it is exceedingly likely the materials were in possession of and and had been reviewed by DOJ at least once if not several times. Moreover, the Shea motion suggests these files were previously classified, which is a tell that Shea has lost track of where the government, which controls classification, ends and Mike Flynn’s defense team begins.

Plus, in his CBS interview last week, Billy Barr confessed that John Durham has already been looking at this.

I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and ’17. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.

And that is part of John Durham, U.S. Attorney John Durham’s portfolio. The reason we had to take this action now and why U.S. Attorney Jeff Jensen came in was because it was prompted by the motions that were filed in that case. And so we had to sorta move more quickly on it. But John Durham is still looking at all of this.

If Durham received these documents anytime before November 1 (Sidney Powell first demanded such things in a letter to Bill Barr sent on June 6, 2019), then the defense of Flynn’s prosecution that Bill Barr’s DOJ submitted last November would have had an opportunity to incorporate these documents. In either case, that defense of the prosecution rebutted both claims made here. It called the investigation legitimate. It specifically rebutted the claim that Flynn had been caught in a perjury trap.

Congressional staffers were tipping Flynn about which files to demand

But Judge Sullivan has in his possession a more damning piece of proof that DOJ has been aware of these documents — and Mike Flynn’s interest in them — even before Flynn pled guilty again on December 18, 2018.  Back in October, the government submitted an exhibit of a Rob Kelner email forwarding Brandon Van Grack and Zainab Ahmad an email he received from Senate Judiciary Committee staffer, Barbara Ledeen. In it, Ledeen tells Kelner that Derek Harvey, one of the House Intelligence Committee staffers who had dug through everything they could find at DOJ to claim abuse in the Russian investigation, urged her to get Judge Sullivan to ask for Jim Comey and Peter Strzok’s HPSCI transcripts so his boss, Devin Nunes, could air the transcript on Fox News (he was also one of the Nunes staffers who met with Rudy Giuliani’s Ukrainian grifters). The government submitted as proof that this is all about ginning up the base (though they didn’t describe it in those terms).

Flynn pled guilty again after being alerted to one of the “new” documents

Flynn’s lawyer received this email five days before Flynn stated, under oath, that he knew he was giving up his right to complain about the circumstances of his interview forever.

THE COURT: Do you wish to challenge the circumstances on which you were interviewed by the FBI?

THE DEFENDANT: No, Your Honor.

THE COURT: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?

THE DEFENDANT: Yes, Your Honor.

And then Flynn pled guilty again.

Comey’s transcript is one of the things DOJ submitted last week to justify deviating from DOJ’s judgment on November 1, 2019, that Flynn’s prosecution was just. It doesn’t say what Harvey claimed it said, but instead says the experienced agents didn’t find Flynn exhibited any indications of deception.

And the agents — and the reason I mention their experience is because I talked to them about this — they discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.

That said, it’s proof that DOJ has long been aware of concerns about the claimed content of this and other filings relied on last week.

But that’s not why I find this email particularly damning — and worthy of further attention.

Barbara Ledeen helped Flynn to try to find Hillary’s emails; her spouse helped Flynn prep for his call with Kislyak

As noted, Barbara Ledeen is a staffer on the Senate Judiciary Committee, meaning she worked for Chuck Grassley  and now works for Lindsey Graham. She’s almost certainly the mastermind of their efforts to declassify every little thing that might undermine the Mueller investigation.

I’m fine with transparency — though given the way Ric Grenell hid Sergey Millian’s name in a transcript on the Russian investigation and given the way Bill Barr has made claims about the Flynn transcripts without declassifying them, we’re not getting it.

But Ledeen’s role goes beyond getting things that undermine Trump’s critics while hiding key facts that wouldn’t.

As the Mueller Report laid out, both she and her husband Michael play key roles in this saga. While a Senate staffer, Ledeen started searching for Hillary’s missing emails as early as 2015. She wanted to reach out via cut-outs to hostile intelligence services and ultimately claimed to have found emails on the dark web.

Barbara Ledeen and Peter Smith were among the people contacted by Flynn. Ledeen, a long-time Senate staffer who had previously sought the Clinton emails, provided updates to Flynn about her efforts throughout the summer of 2016.266 Smith, an investment advisor who was active in Republican politics, also attempted to locate and obtain the deleted Clinton emails.267

Ledeen began her efforts to obtain the Clinton emails before Flynn’s request, as early as December 2015.268 On December 3, 2015, she emailed Smith a proposal to obtain the emails, stating, “Here is the proposal I briefly mentioned to you. The person I described to you would be happy to talk with you either in person or over the phone. The person can get the emails which 1. Were classified and 2. Were purloined by our enemies. That would demonstrate what needs to be demonstrated.”269

Attached to the email was a 25-page proposal stating that the “Clinton email server was, in all likelihood, breached long ago,” and that the Chinese, Russian, and Iranian intelligence services could “re-assemble the server’s email content.”270 The proposal called for a three-phase approach. The first two phases consisted of open-source analysis. The third phase consisted of checking with certain intelligence sources “that have access through liaison work with various foreign services” to determine if any of those services had gotten to the server. The proposal noted, “Even if a single email was recovered and the providence [sic] of that email was a foreign service, it would be catastrophic to the Clinton campaign[.]”

In a sane world, Ledeen would have been fired when this all became public, not least because she engaged in some of the same kinds of behavior that the frothy right complains Christopher Steele did (given that she was pursuing these issues in her oversight role, too, it’s unclear how well this effort was bracketed off from her taxpayer funded work). Instead, she’s leading the fight to discredit the investigation into this and other efforts.

The role of Ledeen’s husband is even more notable. The first person Flynn spoke to after Russia reached out to him — even before he spoke with his Deputy, KT McFarland, was Ledeen, who was then a Transition staffer.

Russia initiated the outreach to the Transition Team. On the evening of December 28, 2016, Kislyak texted Flynn, “can you kindly call me back at your convenience.”1229 Flynn did not respond to the text message that evening. Someone from the Russian Embassy also called Flynn the next morning, at 10:38 a.m., but they did not talk. 1230

[snip]

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242

While Michael Ledeen’s call records were subpoenaed, there’s no record Mueller interviewed him about his calls or even tried.

There are many reasons to believe that little, if any, of the documents relied on last week were new to DOJ at all, especially not new since the November 2019 filing rebutting all the arguments DOJ is now making. Just as importantly, the history in this case going back years is that “new” is not a legal term, but instead a propaganda one, one designed to feed Fox News. And it’s a propaganda effort led, in part, by someone deeply, personally implicated in Flynn’s actions.

Without affirmative proof any of this is new (and DOJ has offered none), DOJ has no procedural basis to flip-flop from the position Bill Barr’s DOJ argued aggressively last year. In the past, at least, by “new” Flynn’s backers and collaborators really only meant “Fox News.”

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.