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The Press Continues to Help Billy Barr Whitewash His Complicity in January 6

Among the things Bill Barr did in his second tour as Attorney General were to:

In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy —  was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.

In spite of that record, Barr continues to find journalists willing to spin a fairytale completely inconsistent with this record, one of Barr standing up to Trump as he pursued this path.

Consider this account of Bill Barr’s decision to quit from Jonathan Swan.

It provides a dramatic account of how Barr denounced Trump’s conspiracy theories — all rooted in claims about the delayed counting of mail-in ballots that Barr had stoked for months.

The president’s theories about a stolen election, Barr told Trump, were “bullshit.”

White House counsel Pat Cipollone and a few other aides in the room were shocked Barr had come out and said it — although they knew it was true.

It describes Barr’s frustration with Trump’s demands about the Durham investigation without mentioning that Barr repeatedly fed those expectations.

He was sick of Trump making public statements and having others do so to whip up pressure against U.S. Attorney John Durham to bring more prosecutions or to put out a report on the Russia investigation before the election.

It also allows Barr to call Rudy and Sidney “clownish,” without mentioning that those very same clowns had gotten Barr to squander the credibility of DOJ on similarly outlandish conspiracy theories, including but not limited to the Mike Flynn prosecution.

For good measure, the attorney general threw in a warning that the new legal team Trump was betting his future on was “clownish.”

[snip]

The president had become too manic for even his most loyal allies, listening increasingly to the conspiracy theorists who echoed his own views and offered an illusion, an alternate reality.

[snip]

But Barr’s respite ended after Election Day, as Trump teamed up with an array of conspiracy theorists to amplify preposterous theories of election interference, arguing that Biden and the Chinese Communist Party, among others, had stolen the election from him.

It presents the conflict over using the military to quell summer protests, without mentioning Barr’s own role in militarizing the response (to say nothing of treating BLM more harshly than right wing terrorists).

By the late summer of 2020, Trump and Barr were regularly skirmishing over how to handle the rising Black Lives Matter protests sparked by the death of George Floyd while in police custody. As the national movement unfurled, some protests had given way to violence and looting. Trump wanted the U.S. government to crack down hard on the unrest.

The president wanted to invoke the Insurrection Act and send the military into U.S. cities. He wanted troops in the street.

[snip]

Besides, Barr asked, what was the endgame for adding the military to the mix? Federal forces could end up stranded in a city like Portland indefinitely.

Trump grew more and more frustrated, but Barr pushed back harder, standing his ground in front of everyone in the room. He was ready, willing and able to be strong, he said. But, he added, we also have to be thoughtful.

In short, this dramatic profile presents a fictional character, wise old Attorney General Bill Barr, who stood up against the President’s worst instincts, wisely resisting the urge to politicize investigations, trump up claims of voter fraud, chase the theories of Sidney Powell and Rudy Giuliani, and back a violent crackdown against Trump’s opponents.

Except that profile is entirely fictional. That Bill Barr is a myth carefully crafted with the help of obliging reporters.

The reality is that over two years of not just tolerating these efforts, but usually taking affirmative steps to foster them, Billy Barr helped to create this monster, even though he was one of the people with the obligation to stop it.

With his corruption as Attorney General Bill Barr fostered this monster. He should get no credit for skipping out before the predictable outcomes of his own actions blew up on January 6.

Where’s Rudy?

There’s an interesting passage in this Daily Beast article, one of several articles in the last day describing the snowballing madness in the Oval Office. For the last day or so, Rudy Giuliani has gone missing.

Meanwhile, Trump, whose rhetoric helped incite the Jan. 6 rioting, is increasingly cut off from once-loyal senior officials, some of whom have resigned in recent days. Instead, the president is focused on managing the fallout, both legally and reputationally, from the attack and the deaths that resulted from it. Even the president’s personal attorney and close confidant, Rudy Giuliani, has been somewhat absent in the last 24 hours, caught up with his own personal problems, including the New York Bar Association’s move to open an inquiry into his removal from its membership, according to one individual with direct knowledge of the situation. [my emphasis]

It doesn’t actually make sense that the Bar Association challenge is that pressing a problem. It’ll go forward regardless of what he does, and it’s not actually the legally meaningful challenge to his bar membership (though a NY State Senator’s request to the state courts could be). Aside from some ill-fated appearances in voter fraud cases, though, Rudy’s not actually practicing courts anymore so much as influence-peddling.

Which may explain two graver threats to Rudy. Last Friday, Dominion Voting Systems sued Sidney Powell for $1.3 billion. Dominion has said they plan to follow up that lawsuit with others, potentially targeting Wood, the media that magnified Powell’s claims (including Fox, OANN, and Epoch Times), and Rudy himself.

Meanwhile, yesterday Treasury sanctioned Rudy’s buddies from Ukraine. The statement on the designation includes a shout-out to meetings involving Rudy (and implicating Devin Nunes and other Republican lawmakers).

Since at least 2019, Derkach and his associates have leveraged U.S. media, U.S.-based social media platforms, and influential U.S. persons to spread misleading and unsubstantiated allegations that current and former U.S. officials engaged in corruption, money laundering, and unlawful political influence in Ukraine.

Former Ukrainian Government officials Konstantin Kulyk, Oleksandr Onyshchenko, Andriy Telizhenko, and current Ukraine Member of Parliament Oleksandr Dubinsky have publicly appeared or affiliated themselves with Derkach through the coordinated dissemination and promotion of fraudulent and unsubstantiated allegations involving a U.S. political candidate. They have made repeated public statements to advance disinformation narratives that U.S. government officials have engaged in corrupt dealings in Ukraine. These efforts are consistent with and in support of Derkach’s efforts, acting as an agent of the Russian intelligence services, to influence the 2020 U.S. Presidential election.

Kulyk, a former prosecutor for the Prosecutor General’s Office of Ukraine, formed an alliance with Derkach to spread false accusations of international corruption. Onyshchenko, a fugitive from Ukrainian justice due to charges of corruption, provided edited audio tape copies of purported audio recordings of conversations between former Ukrainian and U.S. officials, which Derkach released between May and July 2020 to discredit U.S. officials and influence the U.S. elections. Telizhenko, a former low-level Ukrainian diplomat, orchestrated meetings between Derkach and U.S. persons to help propagate false claims concerning corruption in Ukraine. Dubinsky, who serves alongside Derkach in Ukraine’s parliament, joined Derkach in press conferences designed to perpetuate these and other false narratives and denigrate U.S. presidential candidates and their families.

Kulyk, Onyshchenko, Telizhenko, and Dubinsky are being designated pursuant to E.O. 13848 for having directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign influence in a United States election.

Effectively, the sanctions make it clear — Rudy’s denials notwithstanding — that the people whose dirt he has been peddling for years was disinformation seeded by Russia.

And that couldn’t come at a worse time.

For years, Rudy as been operating as if he had impunity. And he probably did, as it has become clear for some time that Trump would pardon him.

Except now that Trump’s incitement of sedition has complicated pardoning his troubles away, Trump has started wailing that if he’s not allowed to self-pardon, then no one else can have a pardon either.

The President had been warned, David, by some of his lawyers that if he goes ahead and pardons himself, he could be more vulnerable to civil lawsuits, including from some of those injured in the Capitol riot because a self-pardon would be seen as an admission that he did something wrong that he would need to be pardoned for. The President is angry. He has not taken that well. And I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be, if I can’t get a pardon, then nobody else should get one either.

This actually isn’t a bad legal decision. It has always been true that if Trump pardoned his co-conspirators of stuff they’ve protected him on so far, then they could be forced to testify against him. This was, at least, he and his co-conspirators all go down together.

But that would be a very bad thing for Mr. Giuliani, because he has been wracking up crimes with abandon, with the apparent belief that they would all be wiped away before January 20.

It’s unclear whether that has driven Rudy away … or whether he’s making a belated attempt to clean up his exposure.

Once Again Trump’s Self-Victimhood Distracts from His Negligence

It will be the subject of extensive discussion going forward how plans for an insurrection made in plain sight on social media went from being viewed, by the FBI and DHS, as First Amendment protected speech to so dangerous that social media shut down key influencer accounts and Apple and Google kicked entire platforms out of their stores within days. But that’s what happened.

On Thursday, a various law enforcement agencies tried to explain why they had allowed the Capitol to be overrun by terrorists, they claimed not to have seen the signs many of us were seeing of plans for violence.

Federal and local officials said Thursday they did not have intelligence suggesting any violent mob was preparing to attack the Capitol, even as demonstrators were publicly saying on social media they were not planning a typical protest.

Despite weeks of preparations, “obviously, what happened no one anticipated,” Michael Sherwin, acting US Attorney for the District of Columbia, told reporters in a telephone press conference Thursday. “Things could have been done better.”

[snip]

Police were caught flat-footed the next day. DC Police Chief Robert Contee told reporters Thursday there was no intelligence that suggested there would be a breach of the US Capitol on January 6. Three DHS sources, who usually receive such reports, were unaware of a threat assessment being shared from the DHS intelligence office ahead of Wednesday’s siege.

But just over a day later, Apple announced that it was giving Parler 24 hours to come into compliance with its moderations guidelines; Google just removed Parler from its stores entirely. Twitter first removed various QAnon supporters, including Sidney Powell and Mike Flynn. Then, finally, after allowing him to Tweet twice after a short-term ban, Twitter announced it was removing Trump permanently and those social media platforms that hadn’t already done so removed Trump as well.

Trump spent the night trying to find workarounds, using the POTUS account, attempting to have one of his sons tweet out his content, and having his social media staffer tweet on his own account. Unless the Tweet included a presidential message, the content was removed.

In response, Trump, his supporters, and the usual commentariat have decried a purportedly authoritarian “censorship” of Donald Trump. Indeed, most of the discussion since then has focused on whether Twitter and other social media platforms acted appropriately.

That has, as has happened so many times in the last four years, distracted from Trump’s own refusal to act.

Here’s Twitter’s description of why it found that Trump had violated Twitter’s Glorification of Violence prohibition.

Overview

On January 8, 2021, President Donald J. Trump tweeted:

“The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”

Shortly thereafter, the President tweeted:

“To all of those who have asked, I will not be going to the Inauguration on January 20th.”

Due to the ongoing tensions in the United States, and an uptick in the global conversation in regards to the people who violently stormed the Capitol on January 6, 2021, these two Tweets must be read in the context of broader events in the country and the ways in which the President’s statements can be mobilized by different audiences, including to incite violence, as well as in the context of the pattern of behavior from this account in recent weeks. After assessing the language in these Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.

Assessment

We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.

This determination is based on a number of factors, including:

  • President Trump’s statement that he will not be attending the Inauguration is being received by a number of his supporters as further confirmation that the election was not legitimate and is seen as him disavowing his previous claim made via two Tweets (1, 2) by his Deputy Chief of Staff, Dan Scavino, that there would be an “orderly transition” on January 20th.
  • The second Tweet may also serve as encouragement to those potentially considering violent acts that the Inauguration would be a “safe” target, as he will not be attending.
  • The use of the words “American Patriots” to describe some of his supporters is also being interpreted as support for those committing violent acts at the US Capitol.
  • The mention of his supporters having a “GIANT VOICE long into the future” and that “They will not be disrespected or treated unfairly in any way, shape or form!!!” is being interpreted as further indication that President Trump does not plan to facilitate an “orderly transition” and instead that he plans to continue to support, empower, and shield those who believe he won the election.
  • Plans for future armed protests have already begun proliferating on and off-Twitter, including a proposed secondary attack on the US Capitol and state capitol buildings on January 17, 2021.

As such, our determination is that the two Tweets above are likely to inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so.

Effectively, Twitter is saying that these Tweets have been exploited by the terrorists supporting Trump as support for further violence. It specifically described plans, being made both on and off Twitter, for a follow-on attack no January 17 (apparently because Q is the 17th letter in the alphabet).

Twitter is not actually arguing that Trump intended to incite violence. Rather, they’re saying that his Tweets are being interpreted as encouragement of more violence that is already being actively planned, regardless of what Trump actually meant by it.

Now, maybe Trump didn’t intend that to be the effect, though Twitter makes a fair point that both the reference to a “GIANT VOICE” in the future — one that may depend on further terrorism — and the formal announcement that the inauguration could be targeted without endangering Trump himself might be seen as inviting more violence.

But if he didn’t mean to do so, the proper response of any marginally responsible adult would be to say, “Golly, I didn’t realize how my own words were being used in ways I didn’t intend. Let me take the next few weeks off to cool off, or better yet, let me find other ways to correct any misinterpretation that I supported violence.” The appropriate response for the Commander in Chief would be to say, “Wow, that was a totally unprecedented attack on our Capitol the other day, I’m deploying all the resources of the Federal government to ensure these planned follow-up attacks will not take place.”

Have you noticed that Trump hasn’t actually said he has ordered the government to prevent further violence?

That’s all the more alarming, given that US law enforcement agencies increasingly share intelligence with the social media platforms, which suggests that Twitter’s reference to “a number of factors” doesn’t rule out specific intelligence about follow-on plans that aren’t visible on social media.

Twitter said, tucked away there in a fifth bullet, that one of the reasons they (and presumably Facebook and Apple and Google and everyone else) acted is because there are specific plans for future terrorist attacks.

And instead of talking about the fact that the man who remains President is doing nothing to prevent those follow-on attacks, we’re talking about what a victim he is.

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

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

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

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

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

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

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

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

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

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

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

THE COURT: Sure.

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

Boiling Frog Journalism: The Collective Yawn as Trump’s Pardoned Foreign Agent Plots a Coup

I sometimes beat up Maggie Haberman for her sloppier feats of access journalism, but I recognize that, particularly for a White House as dysfunctional as this one, it is critically important to have her there, particularly to publicly reveal conflicts like the one that happened Friday. An increasingly desperate Trump fought to hire Sidney Powell to sow her conspiracy theories from the White House and entertained Mike Flynn’s idea of deploying the military to stage a revote that Trump might win this time.

But the NYT, having invested to have Maggie there to report out the rising levels of insanity in the Oval Office, decided to bury the news that the President and the General he just recently pardoned for lying about undermining US sanctions on Russia and his secret work for a foreign country were entertaining a military coup, however feckless. The dead tree NYT doesn’t have the story anywhere on the front page.

And the online version I accessed (admittedly from a foreign IP address) buried the news and focused on Sidney Powell’s batshittery rather than Flynn’s.

It doesn’t matter that Mike Flynn’s calls for sedition won’t prevent President Elect Biden from taking office in a month. The fact that the President is giving quarter to such talk, just weeks after signaling that he thinks it was unfair for Mike Flynn to pay a price for his secret dealings with foreign countries, is still an assault on our democracy, one that won’t go away after January 20.

This is not just about Trump’s insanity and that of the only advisors he trusts in the wake of his loss. It’s that he and Flynn are openly discussing ways to continue to betray this country even after he is removed.

The Price of “Freedom”: What Mike Flynn Squandered in the Two Years He Would Have Served Probation

Two years ago today, Mike Flynn went before Judge Emmet Sullivan to be sentenced. Had things gone as planned, he may well have been sentenced to two years of probation, meaning that — today — he would be a free man, a felon (though a felon still in the queue for a Trump pardon), but nevertheless a man who had paid his debt to society.

Things didn’t go as planned.

In the days before his sentencing, Flynn got cute by introducing details about the circumstances of his interview, details which he had known about when he pled guilty just a year before and certainly knew when he pled guilty again two years ago. Judge Sullivan may well have sentenced Flynn to a short sentence in any case — no more than a month, or more realistically the two weeks Papadopoulos got without any cooperation (in which case Flynn would still likely have been done with probation by inauguration). But he would likely have given great deference to the government support for a probation sentence had Flynn not complained about the way he was treated.

But having complained, Judge Sullivan required that DOJ share the documents Flynn had relied on, including Andrew McCabe’s notes setting up the interview, the 302 from his original interview, and a 302 of an interview from Peter Strzok (over time, DOJ would release serially less redacted copies, with further damaging details); together, those documents started to make it clear the degree to which Flynn was protecting Trump.

Sullivan put Flynn back under oath and made him swear that he knew it was a crime to lie but did it anyway.

And he expressed disgust for what Flynn had done.

You know, I’m going to take into consideration the 33 years of military service and sacrifice, and I’m going to take into consideration the substantial assistance of several ongoing — several ongoing investigations, but I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

[snip]

I’m not hiding my disgust, my disdain for this criminal offense.

When Flynn got cute, I warned, “be careful of what you ask for.” I had no idea at the time how right I was. 

Consider what Flynn has lost in the two years he might have been serving probation, all in an attempt to avoid accountability for lying to protect Trump. He:

  • Replaced competent lawyers with incompetent TV grifters
  • Released evidence he lied to his lawyers doing the FARA filing
  • Consented to waive privilege so DOJ could find more proof he lied
  • Debunked a slew of conspiracy theories
  • Got really damning transcripts released
  • Served 708 days of supervised release
  • Joined a gang
  • Got one of his gang members prosecuted for death threats against Judge Sullivan
  • Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
  • Exposed his son to further prosecution
  • Exposed DOJ to further scrutiny
  • Proved Judge Sullivan’s point about selling the country out

Replaced competent lawyers with incompetent TV grifters

In June, Rob Kelner made official something that Sidney Powell has more recently revealed had happened earlier: Flynn replaced the very competent Covington & Burling (who, records would later show, had written off millions of dollars of work they did as the FARA investigation turned into a prosecution) for Sidney Powell.

This was a mistake.

Along the way, Powell made several errors of procedure which would have been important if she had a case. For example, Powell introduced a motion to dismiss in her purported Brady claim, somewhat mooting the claim for when she raised it again the next year. Powell did not object to Judge Sullivan’s response to the motion to dismiss in timely fashion. Powell never moved to recuse Sullivan until September 2020, effectively waiving accusations she floated throughout the process. These were all procedural issues that, even if her argument were sound, she’d also have to get correct, which she did not.

She also did a number of things that Sullivan found to be unethical, including misciting things and the initial letter to Barr (though he did not sanction her).

Most insanely, Powell had Flynn submit a sworn declaration that materially conflicted with his two earlier guilty allocutions as well as his EDVA grand jury testimony. Effectively, to beat a false statements charge he might have gotten probation for, Powell had Flynn perjure himself.

As this post makes clear, Powell got Flynn less than nothing for his troubles. In early January, after twice delaying to get the requisite approvals from Bill Barr’s DOJ, prosecutors called for prison time, noting that Flynn had disclaimed his guilty plea and blown up his cooperation.

Worse, after the way Powell went nuclear on Covington, accusing them of incompetence and ethical failures, no sane attorneys would represent Flynn going forward. If he gets back into legal trouble, he’ll be stuck with someone whose approach to lawyering amounts to propaganda rather than sound legal advice. Without the bailout of a pardon, then, things could work out far worse going forward.

Released evidence he lied to his lawyers doing the FARA filing

Immediately after replacing Kelner, Flynn’s lawyers tried to use Judge Anthony Trenga’s rulings from EDVA (which were premised on moves DOJ had to take after Flynn reneged on his prior testimony) to suggest the whole thing was a set-up. Even in her first submission, Sidney Powell was making demonstrably misleading claims. Importantly, some of the evidence she submitted — particularly with respect to the purpose of an election day op-ed Flynn published under his own name — proved that Flynn lied to his lawyers. For example, Powell submitted evidence to both dockets showing Flynn had claimed, to his Covington lawyers, to have written the op-ed published on election day to help Trump, when in fact he had instead pasted his name on it to serve the government of Turkey.

Consented to waive privilege so DOJ could find more proof he lied

Starting in fall 2019 and then doubling down after DOJ called for prison time, Powell started accusing Covington & Burling of having an unwaivable conflict. DOJ provided documentation that Flynn had been alerted to the possible conflict, but waived it. Flynn provided more evidence that DOJ had gotten that waiver. Flynn provided evidence that Covington not only told him, repeatedly, about the potential conflict, but arranged to have another lawyer he could consult about it. But still Powell persisted in accusing Covington of setting Mike Flynn up for a fall.

In response, DOJ requested and got Flynn to waive attorney-client privilege so DOJ could show more evidence than they already had that Flynn lied to his lawyers in preparation of the FARA filing. DOJ was about to submit their first collection of this proof to the docket when Barr moved to dismiss the prosecution.

But that evidence remains at DOJ and the limits on the waiver — basically prohibiting its use against Flynn — don’t cover its use for a retrial of Bijan Kian (possibly with Flynn’s son added). Indeed, Judge Trenga already approved a limited waiver of privilege for the first trial. While DOJ would have to request to use this information in such a trial, it has possession of it and knows what it includes.

Debunked a slew of conspiracy theories

The first thing Sidney Powell did after she fully took over the case was, in the guise of accusing DOJ of failing to comply with Judge Sullivan’s standing Brady order, accuse DOJ of withholding material information. The vast majority of these claims were conspiracy theories with no more basis than Powell’s bullshit claims that dead Hugo Chavez stole the election for Joe Biden. They include claims that:

  • A meeting between Bruce Ohr and Andrew Weissmann harmed her client, who was investigated by none of them
  • Nellie Ohr had any role in Flynn’s prosecution
  • Reporting from Stefan Halper was key to the predication of an investigation into Flynn, including that an allegation Svetlana Lokhova honey trapped him
  • A claim that Joseph Mifsud was at the RT Gala Flynn was paid to attend
  • Section 704b spying that Mike Flynn supervised briefly had instead been focused on him
  • A claim, repeatedly reported in frothy right propaganda, that McCabe had said, “First we fuck Flynn, then we fuck Trump”
  • A claim there was an original 302 that didn’t match every other document in the case

This might be thought of as a reverse subpoena to DOJ — and it matched a letter Powell sent Bill Barr, which prosecutors shared with Sullivan in their response (and which he’d return to after Barr attempted to blow up the prosecution altogether). Much of the material has been released in the last year. It doesn’t say what she imagined it would say, and much of it directly debunked her conspiracy theories.

Along with these conspiracy theories, Powell made false claims about the proceedings before Sullivan, claiming Brandon Van Grack never provided the damning texts between Peter Strzok and Lisa Page, that summaries Judge Sullivan had approved were inadequate,

Both DOJ and Sullivan himself mapped out each alleged lie and showed where it appeared in the 302s. DOJ also submitted all the 302s, to show they never wavered in their content. Much later, DOJ submitted notes from a meeting shortly after the interview, showing Strzok described the interview just as it appeared in notes and all copies of the 302.

Of particular import, between Flynn’s team and DOJ, they released various filings showing how diligently DOJ had investigated the “Fuck Flynn, fuck Trump” allegation, including a statement from Strzok and a 302 from Lisa Page, as well as allegations that McCabe pressured agents to alter the 302 (with a 302, presumably of Pientka, debunking that claim). Flynn even produced evidence that Flynn knew of the allegation almost a year before he waived any concerns with it.

With regards to the Halper claim, DOJ submitted the opening EC into Flynn, showing that Lokhova was not mentioned at all. Flynn ultimately submitted the draft closing communication from the file which showed Bill Barnett — a pro-Trump agent who was skeptical of many parts of the investigation into Flynn — only got the Lokhova allegation later in 2016, and he dismissed it without much investigation.

Got really damning transcripts released

At several different points in the process, the government released transcripts it otherwise might not have. In the wake of the Mueller Report release, for example, Judge Sullivan ordered the government to release a transcript and audio of John Dowd calling Rob Kelner to pressure him to keep providing information regarding the Flynn interviews.

With their revised sentencing memo, prosecutors submitted Flynn’s grand jury testimony from EDVA (along with supporting exhibits), where he testified under oath that he always knew the Turkish government was his client.

Separate from this docket, but part of the same effort to discredit the Mike Flynn prosecution, the government released the transcripts of Flynn’s calls with Kislyak. They’re damning. They show Flynn kept making asks of Kislyak (including in response to sanctions), was easily manipulated by the Russian Ambassador, and tacitly agreed that Russia and the Trump Administration were on the same side against the US government. Importantly, the transcripts also show that Trump knew of the calls between Flynn and Kislyak (and subsequently released documents show that Flynn was with Trump for the one transcript DOJ has not yet released. These would never in a million years have been released normally.

Now, they may be a means of holding Trump accountable in the future. These transcripts now become admissible. The Mueller Report conclusion that there was some evidence Trump knew of Flynn’s calls but not enough to charge was probably based on the reality that DOJ would never submit such transcripts at trial (and indeed DOJ refused to share them with Judge Sullivan when he first asked). But now that they’re public, they would be fully available in any proceeding against Trump or Flynn going forward.

Served 708 days of supervised release

Had Flynn been sentenced to two years of probation, as was a real possibility, he would have served 731 of supervised release. As it was, Flynn served 708 days under release conditions, conditions Sullivan made stricter after the aborted sentencing hearing once he realized Flynn had gotten special treatment (though he relaxed those conditions after some months). The better part of this delay in Flynn’s period of supervised released was caused by Flynn himself. 

So effectively, Flynn served most of the sentence he would have served had he not blown up his cooperation deal, with nothing to gain from it besides a pardon of desperation he might have gotten anyway.

Joined a gang

Over the 18 months Flynn was represented by Sidney Powell, conspiracy theorists fed his ego and he fed their conspiracies. QAnon increasingly fed support for Flynn and at one point Powell even lifted claims directly from QAnon Twitter to submit in a filing.

On the Fourth of July of this year, Flynn formally pledged allegiance to QAnon.

In May — that is, before Flynn formally pledged allegiance to QAnon — the FBI released a bulletin warning that QAnon, along other conspiracy peddlers, had become a domestic terrorist threat.

Got one of his gang members prosecuted for death threats against a judge

Before Flynn joined that gang, but significantly as a result of his fostering it, a member of QAnon took action on Flynn’s behalf, calling in death threats against Judge Sullivan and his staffers.

We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a fuck who you are. Back out of this bullshit before it’s too late, or we’ll start cutting down your staff. This is not a threat. This is a promise

Frank Caporusso was charged in August. In October he was ordered held without bail. He appears set to plead guilty on January 19.

Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred

And with his two years of effort, Mike Flynn has gotten none of the exoneration he was seeking.

In a 92-page opinion last year, Judge Sullivan affirmed that Flynn’s lies were material and that, “Mr. Flynn has failed to establish a single Brady violation.”

A sentencing memo approved by all levels of Bill Barr’s DOJ also ruled that Flynn’s lies were material.

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

[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]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

In a filing in June, Jocelyn Ballantine laid out that Flynn had gotten the discovery required, and stated clearly that his claims of prosecutorial misconduct were unfounded.

Before Flynn’s 2017 guilty plea, the government provided Flynn with (1) the FBI report for Flynn’s January 24 interview; (2) notification that the DOJ Inspector General, in reviewing allegations regarding actions by the DOJ and FBI in advance of the 2016 election, had identified electronic communications between Strzok and Page that showed political bias that might constitute misconduct; (3) information that Flynn had a sure demeanor and did not give any indicators of deception during the January 24 interview; and (4) information that both of the interviewing agents had the impression at the time that Flynn was not lying or did not think he was lying.

The government subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Doc. 20, at 2. The majority of those materials, over 21,000 pages of the government’s production, pertain to Flynn’s statements in his March 7, 2017 FARA filing, for which the government agreed not to prosecute him as part of the plea agreement. The remainder are disclosures related to Flynn’s January 24, 2017, statements to the FBI, and his many debriefings with the SCO.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. [my emphasis]

An interview report DOJ submitted actually hid material evidence that the pro-Trump agent who pushed back against the investigation of Flynn for his Russian ties worked well with Brandon Van Grack, but effectively, even Bill Barr’s star witness refuted Sidney Powell’s claims of misconduct.

Finally, in Judge Sullivan’s order dismissing Flynn’s prosecution as moot, he made a number of findings of fact, effectively finding that nothing DOJ has been throwing at the wall since May changes Mike Flynn’s guilt.

  1. The government’s assertion that there was confusion surrounding Mike Flynn’s interview does not change that his lies were material.
  2. DOJ’s [draft] conclusion that Flynn was not an agent of Russia does not change that his lies were material.
  3. The evidence impeaching Peter Strzok and others does not change that Flynn’s lies were material (and, as Sullivan notes, even the government agreed before Flynn pled guilty).
  4. Nothing in the public record substantiates that the 302 of January 24, 2017 Flynn’s interview does not accurately reflect what happened in the interview.
  5. Flynn’s claims to be forgetful are not consistent with the fact that, as the incoming National Security Advisor, he personally asked Sergey Kislyak to undermine President Obama’s policy before Trump took office.
  6. Nothing in Bill Priestap’s notes call into question the legitimacy of the Mike Flynn interview.
  7. The government could have relied on Mike Flynn’s admissions at trial.

Mike Flynn has spent two years trying to deny that he was guilty of lying to obstruct an investigation. The record remains that he did.

Exposed his son to further prosecution

As part of his claim to have been railroaded, Flynn accused Robert Mueller’s prosecutors of threatening his son. Documents that would have otherwise eventually been released (the warrants targeting Flynn) made it clear that his son was the first to claim legal exposure, threatening to plead the Fifth in July 2017 to avoid testifying about his work with his dad. Documents that Flynn submitted to the docket show that Mueller had an understanding, but pointedly avoided promising not to prosecute Jr.

Now that Flynn’s plea has been voided, Jr could hypothetically be added as a co-conspirator in any retrial of Bijan Kian, with Flynn Sr — who is immune from legal jeopardy — possibly forced to testify against his son.

I think Trump will do something to make sure this is unlikely. But the risk is out there that, after purportedly pleading guilty to save his son, Flynn will have made his son’s jeopardy worse.

Exposed DOJ to further scrutiny

DOJ’s excuses for trying to blow up Flynn’s prosecution were transparently bogus — and conflicted with each other. That, in and of itself, suggested DOJ was not entitled to the presumption of regularity.

But along the way, DOJ submitted a package of altered documents to the docket. That led Sullivan to require DOJ to certify everything they submitted — and then to insist after DOJ tried to dodge the order. DOJ stopped well short of certifying everything, and lied in the filing doing so. All those issues remain unresolved in Sullivan’s docket.

Proved Judge Sullivan’s point about selling his country out

Two years ago today, at the aborted sentencing hearing, Judge Sullivan observed (misstating when Flynn’s secret relationship with Turkey ended) that Flynn had “arguably” sold out the flag.

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that.

In the three weeks since Flynn was pardoned, he has done just that, twice called on Trump to use the military to rerun a vote that might keep Trump in power.

In His Mike Flynn Opinion, Emmet Sullivan Made a Finding of Fact Against Billy Barr’s New Reality

I’ve been unpacking the Judge Emmet Sullivan opinion dismissing Mike Flynn’s guilty verdicts.

This post lays out how Sullivan asserts authority to refuse the government’s motion to dismiss Flynn’s prosecution, but does not do so, because the question is moot.

This post shows that Sullivan laid out evidence that DOJ’s motion to dismiss was pretextual. He declined to rule that the motion itself was pretextual, because the question is moot. But he made it clear he thinks DOJ’s excuses for blowing up the Flynn prosecution are bullshit.

And this post notes that, before Sullivan started mooting the shit out of DOJ’s interest in his docket, he struck some documents that Sidney Powell had submitted to his docket because the government had not authenticated them, without at the same time striking another document that the government didn’t rely on but had not authenticated. It’s a tactical step, I think, that leaves everything else in his docket as authenticated, even though DOJ stopped short of standing by all those exhibits.

Before I get into what Sullivan says about Trump’s pardon power — which, make no mistake, Sullivan affirms as expansive — I’d like to lay out some findings of fact that Sullivan includes in this opinion. He includes a number of other findings of fact that are tangential to the question of a pardon but which Bill Barr and Donald Trump have staked a lot on. He does so, he explains, because the government has invited him to.

The Court is mindful that it is “particularly ill-suited” to reviewing the strength of the case. Wayte v. United States, 470 U.S. 598, 607 (1985); see also In re United States, 345 F.3d 454, 455 (7th Cir. 2003) (finding that the trial court’s belief that “the evidence was strong and conviction extremely likely” was an inappropriate basis to deny leave). That said, the role of the Court is to conduct an “examination of the record” in order to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.” Rinaldi, 434 U.S. at 30. Moreover, the Court examines the factual basis underlying the government’s reasons because not doing so would amount to rubber stamping the government’s decision, contrary to the requirement of Rule 48(a). Here, the government has invited the Court’s examination of its evidence. See Hr’g Tr., ECF No. 266 at 42:22-43:1 (stating that “we’re completely unafraid here to address . . . the specifics as to why we thought we needed to dismiss this case. . . . we’d be happy to go through the evidence.”). Accordingly, the Court will briefly address some of the evidence the government points to as it is troubled by the apparently pretextual nature of certain aspects of the government’s ever-evolving justifications. See Foster v. Chatman, 136 S. Ct. 1737, 1751 (2016) (“[T]he prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual.”).

The findings of fact Sullivan addresses primarily come in this paragraph on materiality… [my numbering throughout]

Several of the government’s arguments regarding materiality also appear to be irrelevant or to directly contradict previous statements the government has made in this case. For example, as Mr. Gleeson points out, many of the “bureaucratic formalities” [1] the government asserts reveal the “confusion and disagreement about the purpose and legitimacy of the interview and its investigative basis”—such as the drafting of the FBI’s Closing Communication or internal conversations between FBI and Department of Justice officials regarding whether to notify the Trump administration of Mr. Flynn’s false statements—are not relevant to proving materiality. See Amicus Reply Br., ECF No. 243 at 19. Nor is it [2] relevant whether Mr. Flynn was an “agent of Russia” or guilty of some other crime at the time he made the false statements. Furthermore, while the government argues that, “since the time of [Mr. Flynn’s guilty] plea, [3] extensive impeaching materials had emerged about key witnesses the government would need to prove its case,” Gov’t’s Reply, ECF No. 227 at 35; the government had been aware of much of this evidence since early on in the case, see, e.g., Gov’t’s Response Def.’s Mot. Compel, ECF No. 122 at 8-9.

And this passage assessing the evidence that Flynn’s lies were lies.

[4] With regard to the “inconsistent records” rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn. Furthermore, the government’s reliance on Director Comey’s opinion about whether Mr. Flynn lied is suspect given that Director Comey was not present at the interview and that there are valid questions regarding the admissibility of his personal opinion.

With regard to Mr. Flynn’s alleged “faulty memory,” Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, [5] who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office. With regard to the government’s concerns about the Assistant Director for Counter Intelligence’s contemplating the goal of the interview, [6] an objective interpretation of the notes in their entirety does not call into question the legitimacy of the interview. Finally, and critically, under the terms of Mr. Flynn’s cooperation agreement, [7] the government could have used his admissions at trial, see Plea Agreement, ECF No. 3 at 8 ¶ 11; but the government ignores this powerful evidence.

In these passages, District Court Judge Emmet Sullivan finds as fact that:

  1. The government’s assertion that there was confusion surrounding Mike Flynn’s interview does not change that his lies were material.
  2. DOJ’s [draft] conclusion that Flynn was not an agent of Russia does not change that his lies were material.
  3. The evidence impeaching Peter Strzok and others does not change that Flynn’s lies were material (and, as Sullivan notes, even the government agreed before Flynn pled guilty).
  4. Nothing in the public record substantiates that the 302 of Janaury 24, 2017 Flynn’s interview does not accurately reflect what happened in the interview.
  5. Flynn’s claims to be forgetful are not consistent with the fact that, as the incoming National Security Advisor, he personally asked Sergey Kislyak to undermine President Obama’s policy before Trump took office.
  6. Nothing in Bill Priestap’s notes call into question the legitimacy of the Mike Flynn interview.
  7. The government could have relied on Mike Flynn’s admissions at trial.

One way to think about this language is that Billy Barr attempted to create a new set of facts by submitting documents from the Jeffrey Jensen investigation to Sullivan’s docket and making false claims about them, thereby attempting to annul the set of facts that led DOJ (even DOJ under Bill Barr, repeatedly) to argue that Mike Flynn’s lies were serious. Judge Sullivan is having none of Billy Barr’s new reality, in significant part because DOJ has not explained what changed from its prior assertions of fact and partly because none of the claims it has made about the so-called new evidence refutes DOJ’s prior representations.

These findings of fact may have a more specific effect, though. Billy Barr has served up his different set of facts and based off those, John Durham is attempting to criminalize the decisions of the people that prosecuted Mike Flynn for telling the FBI material lies. DOJ generally has no basis to appeal Sullivan’s findings, because its position in the docket is (as Sullivan notes repeatedly) moot. But Durham has even less ability to contest Sullivan’s findings of fact; he has no standing.

So unless DOJ finds a way around the fact that they themselves have mooted any further involvement before Judge Sullivan, then, any further investigation into the circumstances of Flynn’s prosecution will have to contend with the fact that a judge has already found a number of key premises entertained by those pushing the investigation into the investigation to be false.

At least as of right now, it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

Before He Mooted DOJ’s Motions in the Mike Flynn Case, Emmet Sullivan Treated DOJ’s Authentication as Official

I’m writing a bunch of posts on Judge Emmet Sullivan’s order dismissing Mike Flynn’s prosecution as moot.

This post laid out how Sullivan established that he has the authority to rule against DOJ’s motion to dismiss the Flynn case, but declined to do so because the question is moot

This post laid out the evidence Sullivan laid out that DOJ’s motion to dismiss was pretextual. He declined to rule that the motion itself was pretextual, because the question is moot. But he made it clear he thinks DOJ’s excuses for blowing up the Flynn prosecution are bullshit.

As I noted, because the order itself moots all pending DOJ issues in the docket, the government would have a hard time appealing either of those issues, especially given that Sullivan didn’t ultimately rule on them. DOJ has no business making requests in this docket because the matter on which they have primacy, prosecutions, has been mooted by Trump’s pardon. Sullivan has reclaimed authority over his docket.

In this post, I’d like to look at something tactical Judge Sullivan did just before he started mooting DOJ’s role, which looks like this in the docket.

Before he ruled on the pardon, Judge Sullivan first struck four exhibits from the docket:

  • 228-2: Some texts involving Peter Strzok
  • 228-4: Sidney Powell’s submission of a motion from Amaro Goncalves
  • 228-5: Sidney Powell’s submission of a motion involving Ted Stevens
  • 248-1: Some texts from FBI intelligence analysts

With the exception of the last of these, these aren’t that important — as I noted in this post, Sidney Powell’s submission of prior filings from other lawyers is the rare moment when she can be relied on to be more accurate than the government (or any bum off the street). But by striking those other four exhibits, this order makes clear that Judge Sullivan considers the claims in this DOJ filing to be operative.

Interestingly, Sullivan did not strike a different exhibit — basically some Strzok and Page texts DOJ repackaged to be assholes — which are referred to in the paragraph before the one excepting out those four (which I’ve italicized), which DOJ treats as the same, stuff they’re not relying on, but which they do not decline to authenticate.

On September 2018, the DC-USAO received from the Department of Justice Office of the Inspector General a complete set of the text messages between OGC Attorney Lisa Page and DAD Peter Strzok. As the Court is well-aware, the government first disclosed the existence of these text messages to Mr. Flynn on November 30, 2017. Thereafter, the government provided excerpts of these text messages and links to publicly available compilations of these communications to Mr. Flynn on March 13, 2018, June 24, 2018, October 28, 2019, and April 29, 2020. On September 23, 2020, the government provided Mr. Flynn with additional text messages from the set it had received from the OIG in September 2018. The government is not relying on these additional text messages in support of its motion to dismiss.

The government also notes that there are Discovery Documents attached to Mr. Flynn’s filings that it has not authenticated for the purpose of this filing because those documents were not relied upon by the government in its motion to dismiss or arguments in support thereof. See ECF Nos. 228-2, 228-4, 228-5, and 248-1.

Effectively then, Sullivan has struck stuff submitted by Flynn’s lawyers that DOJ was not relying on, but not stuff DOJ submitted that it said it was not relying upon.

Sullivan left on the docket a bunch of filings that DOJ fell far short of validating in its filing, as laid out here, including the filings that DOJ altered. But he also made it clear that that filing authenticating exhibits in his docket does remain operative.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An ongoing Kraken conspiracy to pay off the pardon

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

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

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

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

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

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

John Durham Has Unaltered Copies of the Documents that Got Altered in the Flynn Docket

Bill Barr could come to regret his neat effort to place a ticking time bomb inside the Joe Biden DOJ, because John Durham has evidence in hand that Bill Barr’s DOJ tampered with documents.

I’ve been thinking … There’s something that doesn’t make sense about Bill Barr’s roll-out of the order making John Durham a Special Counsel. For the better part of a year, Barr has been saying that Durham could roll out actual indictments before the election, since none of the people he would indict were candidates. Yet Barr claimed, in his order, that he decided (not Durham) that, “legitimate investigative and privacy concerns warrant confidentiality” until after the election. And then he waited almost an entire month before he revealed the order. He did so in spite of adopting 28 CFR 600.9, which otherwise requires notice to Congress, to govern this appointment.

Let me interject and say that while Barr’s appointment of a DOJ employee, US Attorney John Durham, violates the Special Counsel statutes, that’s not the authority under which Barr appointed Durham. He did so under 28 USC 509, 510, 515, which is what Mueller was technically appointed under. Thanks to the Mueller investigation and some well-funded Russian troll lawyers, there’s a whole bunch of appellate language authorizing the appointment of someone under 28 USC 515 but governed under 28 CFR 600.9. The unusual nature of the appointment would provide President Biden’s Attorney General an easy way to swap Durham for Nora Dannehy (who as a non-departmental employee would qualify under the Special Counsel guidelines), and given her past involvement in the investigation, it should suffer no loss of institutional credibility or knowledge. But it doesn’t damage Durham’s legal authority in the meantime.

Barr probably lied about the significant reasons to delay notice to Congress. According to the AP, Durham is no longer focused on most of the scope he had been investigating, to include George Papadopoulos’ conspiracy theories and GOP claims that the CIA violated analytic tradecraft in concluding that Vladimir Putin affirmatively wanted Trump elected. He is, according to someone in the immediate vicinity of Barr, focused just on the conduct of FBI Agents before Mueller’s appointment, even though the language of this appointment approves far more.

The current investigation, a criminal probe, had begun very broadly but has since “narrowed considerably” and now “really is focused on the activities of the Crossfire Hurricane investigation within the FBI,” Barr said. He said he expects Durham would detail whether any additional prosecutions will be brought and make public a report of the investigation’s findings.

[snip]

A senior Justice Department official told the AP that although the order details that it is “including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller III,” the Durham probe has not expanded. The official said that line specifically relates to FBI personnel who worked on the Russia investigation before the May 2017 appointment of Mueller, a critical area of scrutiny for both Durham and for the Justice Department inspector general, which identified a series of errors and omissions in surveillance applications targeting a former Trump campaign associate.

The focus on the FBI, rather than the CIA and the intelligence community, suggests that Durham may have moved past some of the more incendiary claims that Trump supporters had hoped would yield allegations of misconduct, or even crimes — namely, the question of how intelligence agencies reached their conclusion that Russia had interfered in the 2016 election.

We know from the Jeffrey Jensen investigation and documents Barr otherwise released where Barr thought John Durham was heading. There are questions about who knew about credibility problems of Christopher Steele’s primary source Igor Danchenko (though the GOP has vastly overstated what his interview said, ignoring how much of the dossier it actually corroborated, Danchenko’s later interviews, and FBI’s later interviews of one of his own sources). There are some analysts who questioned the viability of the investigation into Flynn; it appears they asked to be removed from the team.

And Jensen, at least, seemed to want to claim that Peter Strzok got NSLs targeting Flynn in February and March 2017 that he had previously refused to approve. Someone seems to have convinced Flynn investigative agent Bill Barnett that those NSLs, which were lawyered by Kevin Clinesmith, were illegal, but given the predication needed for NSLs that seems a wild stretch. Plus, it would be unlikely (though not impossible) for Durham to indict Clinesmith without a Durham-specific cooperation agreement before if he believed Clinesmith had committed other crimes. I mean, it’s possible that Clinesmith, under threat of further prosecution, is claiming that mere NSLs are illegal, but I’d be surprised. Not least because after these NSLs, Strzok worked hard to put a pro-Trump FBI Agent in charge of the Flynn investigation.

Occam’s razor suggests that Durham asked for the special counsel designation because he wants to be permitted to work through these last bits and finish up the investigation, along with the prior authority (which Mueller did not have) to publish his findings.

Occam’s razor also suggests that the reason Barr didn’t reveal this change of status until this week has everything to do with pressure from Trump and nothing to do with investigative equities and everything to do with using this investigation like he has all of his US Attorney led investigations, as a way to placate Trump. Trump has reportedly been complaining that Barr didn’t do more to undermine the election, and so he rolled this out as a way to buy space and time.

Axios reports that it may not work. Trump might fire Barr and replace him with someone who would order that Durham report right away.

Behind the scenes: Within Trump’s orbit, sources told Axios, Tuesday’s revelation was seen as a smokescreen to forestall the release of the so-called Durham report, which senior administration officials believe is already complete — and which Barr had ruled out issuing before the election.

  • Another senior administration official disputed that assessment, saying: “The reason the Attorney General appointed John Durham as Special Counsel is because he’s not finished with his investigation,” and that Barr “wanted to ensure that John Durham would be able to continue his work independently and unimpeded.”
  • Trump has been ranting about the delay behind the scenes and mused privately about replacing Barr with somebody who will expedite the process. But it’s unclear whether he will follow through with that, per sources familiar with the conversations.
  • Barr met with White House chief of staff Mark Meadows and other officials in the West Wing Tuesday afternoon.

Except that doesn’t work. If Trump were to name John Ratcliffe Acting Attorney General (he’d be the perfect flunky for the job), he would be powerless to force Durham to report more quickly. Sure, he could fire Durham, but he’d have to provide notice to Congress, and there’s virtually no remedy Congress would or could offer in the next 48 days. Ratcliffe can’t write a report himself. And the people doing the work for Durham aren’t DOJ employees, so firing them would do nothing to get a report. For better and worse, Barr has ensured that Ratcliffe or whatever other flunky were appointed could not do that, at least not in the 48 days before such person would be fired by President Biden.

Again, Ockham’s Razor suggests that Durham will finish his work and write a public report debunking the Papadopoulos conspiracies, confirming that CIA’s analytic work was not improper, and otherwise concluding that Kevin Clinesmith’s alteration of documents was the only crime that occurred.

More importantly, there’s a problem with Axios’ report, that “Barr had ruled out issuing a report before the election,” and that’s what makes this special counsel appointment more interesting. Barr tried to force Durham to issue a report before the election. That led Durham’s trusted aide Nora Dannehy to quit before September 11, thereby seemingly creating the need for a special counsel designation at that point.

Federal prosecutor Nora Dannehy, a top aide to U.S. Attorney John H. Durham in his Russia investigation, has quietly resigned from the U.S. Justice Department probe – at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done, colleagues said.

[snip]

Colleagues said Dannehy is not a supporter of President Donald J. Trump and has been concerned in recent weeks by what she believed was pressure from Barr – who appointed Durham to produce results before the election. They said she has been considering resignation for weeks, conflicted by loyalty to Durham and concern about politics.

[snip]

The thinking of the associates, all Durham allies, is that the Russia investigation group will be disbanded and its work lost if Trump loses.

And Barr himself had, for months, been saying that he would shut down Durham if Trump lost. Yet here we are, after the election, learning that Barr has provided Durham additional protections.

That’s all the more interesting given what Barr did after Dannehy quit in the face of pressure to issue some kind of report before the election. First, he gave a screed at Hillsdale College that pretty clearly targeted Dannehy, among others. Then, Barr attempted to let Jeffrey Jensen release an interim Durham report himself.

Less than a week after Dannehy quit, Jensen’s team interviewed Bill Barnett, someone who would be a key witness for any real Durham investigation of early actions by the FBI. The interview was clearly a political hack job, leaving key details (such as the role of Flynn’s public lies about his calls with Sergey Kislyak in the investigation) unasked. Barnett’s answers materially conflict with his own actions on the case. He was invited to make comments about the politicization of lawyers — notably Andrew Weissmann and Jeannie Rhee — he didn’t work with on the Mueller team. And he claimed to be unaware of central pieces of evidence in the case.

It took just a week for the FBI to write up and release the report from that interview, even while DOJ still hasn’t released a Bill Priestap interview 302 that debunked a central claim made in the Flynn motion to dismiss. And the interview was released in a form that hid material information about Brandon Van Grack’s actions from Judge Sullivan and the public.

But that’s not all. A day earlier prosecutor Jocelyn Ballantine sent five documents to Sidney Powell:

  • The altered January 5, 2017 Strzok notes
  • The second set of altered Strzok notes
  • The altered Andrew McCabe notes
  • Texts between FBI analysts
  • A new set of Strzok-Page texts, which included new Privacy Act violations

All were packaged up for public dissemination, with their protective order footers redacted. There were dates added to all the handwritten notes, at least one of which was misleading. The Strzok-Page texts were irrelevant and included new privacy violations; when later asked to validate them, DOJ claimed they weren’t relying on them (which raises more questions about the circumstances of their release). There’s good reason to believe there’s something funky about the FBI analyst texts released (indeed, as politicized as his interview was, Barnett dismissed the mistaken interpretation DOJ adopted of their meaning, that the analysts were getting insurance solely because of the Russian investigation); DOJ made sure that the identities of these analysts was not made public, avoiding any possibility that the analysts might weigh in like Strzok and McCabe did when they realized their notes had been altered.

One of those alterations would come to serve as a scripted Trump attack on Joe Biden in their first debate. In a September 29 hearing, Sidney Powell admitted meeting regularly with Trump campaign lawyer, Jenna Ellis, and asking Trump to hold off on a Flynn pardon, making it clear that this docket gamesmanship was the entire point.

And then, on October 19, Durham got Barr to give him the special counsel designation that would give him independence he had not had during 18 months of Barr micromanagement and also ensure that he could remain on past the time when Barr would be his boss.

Days later, on October 22, DOJ wrote Sidney Powell telling her they were going to stop feeding her with documents she would use to make politicized attacks.

Let’s assume for a minute that Durham was, in good faith, pursuing what the FBI was doing in the spring of 2017, an inquiry for which Barnett was a key — and at that point, credible — witness. That investigation was effectively destroyed with the release of the politicized Barnett interview report. Any defense attorney would make mincemeat of him as a witness.

Which is to say that Barr’s effort to let Jensen release the things that Durham refused to before the election damaged any good faith investigation that Durham might have been pursuing. And that’s before DOJ got caught altering documents, documents for which Durham has original copies. It’s not clear whether Durham is watching this docket that closely, but if he is, he knows precisely what, how, and to what extent these documents have been altered. And he probably has a good sense of why they were released in the way they were.

Again, Ockham’s Razor says that Durham will just muddle along and after a delay release a report saying he found nothing — which itself will be incendiary enough to the frothy right.

But by incorporating 28 CFR 600.4 into the scope of his special counsel appointment clearly allows him to investigate any attempts to interfere with his investigation.

federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses;

It’s likely those pre-election antics did interfere with the investigation. And even if Durham hasn’t thought that through yet, it’s possible that Michael Horowitz will inform him of the details.