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Bill Barr’s Chosen US Attorney Signs Off on Aggressive Response to Mike Flynn

When Bill Barr suddenly replaced DC US Attorney Jessie Liu the day after the Senate acquitted Trump, I grew wary of why he replaced a solid Trump appointee with his own close aide, Timothy Shea.

I fully expect the move was designed to minimize the damage of ongoing investigations into Trump’s flunkies and may well be an effort to prosecute more of Trump’s perceived enemies, like Andrew McCabe.

But in one of the first signals of whether Shea will interfere in sensitive prosecutions, the ongoing sentencing of Mike Flynn, Shea signed off on an aggressive next step.

That’s one of the key takeaways from two filings submitted today, the first asking for an order finding that Flynn has waived all attorney-client privilege with respect to Covington & Burling’s representation of him (including with those who worked on Flynn’s behalf, which might include researchers and tech contractors) in regards to his motion to withdraw his guilty plea, and the second asking for a continuance — possibly a significant one — to work with Covington to obtain information and materials to respond to Mike Flynn’s claims that Covington provided incompetent advice to him.

Bill Barr’s close associate Shea signed off on this, but Brandon Van Grack did not, which likely means that the government is preparing for the possibility (invited by Judge Emmet Sullivan’s suggestion he wants to hold an evidentiary hearing with sworn witnesses) that Van Grack will testify about discussions with Flynn and his lawyers, too.

That is, we may be headed towards a hearing in which we see top Covington lawyers, their contractors (I suspect their tech contractors have an interesting story to tell about how Flynn Intelligence Group materials were made unavailable after the 2016 election, thereby making key documents unavailable for Covington to review before completing the FARA filing), the other lawyer they advised he consult after first making sure he did not have a conflict, and Van Grack testify about how much lying and obstruction Flynn engaged in, with just Flynn and his wife (having probably already waived spousal privilege by submitting a declaration in this matter) arguing to the contrary.

Another takeaway is that Covington wants this opportunity to tell what a shitty client Flynn was.

While Covington has indicated a willingness to comply with this request, it has understandably declined to do so in the absence of a Court order confirming the waiver of attorney-client privilege.

They just want the legal and ethical cover of an order from Judge Sullivan. The government is asking for over a week extension from the existing deadline — currently noon on this Wednesday, February 12 — before they propose to submit a status report at noon on Thursday, February 20. That suggests they imagine, having consulted with Covington, that there may be a good deal to talk about, with regards to what a shitty client Mike Flynn was.

A subtle point about this request: I believe that the government is asking for this, and justifying it, based off Flynn’s complaint not just that his Covington lawyers should have gotten the details about FARA correct, and having not done so had an unwaivable conflict in representing Flynn going forward, but also that they allegedly did not tell Flynn that the FBI agents who originally interviewed him believed that he had a “sure demeanor,” which would have led him not to plead guilty had he been told.

the defendant contends that (1) his attorneys did not disclose to him that the interviewing agents believed he had a “sure demeanor” and that he did not show signs of deception, and he would not have pleaded guilty if his attorneys had disclosed this to him

This is significant because in the Bijan Kian case, Judge Anthony Trenga ruled that Covington’s work on the FARA application was not covered by privilege.

Notwithstanding the near absolute immunity enjoyed by attorney opinion work product, where that work product relates centrally to the actions or conduct of a lawyer at issue in a case, such that consideration of the attorney’s opinion work product, including their recollections and impressions, are essential to a just and fair resolution, opinion work product protections otherwise applicable do not apply. See, e.g., In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981) (finding no opinion work product protection where attorney’s prior representation was a target of the grand jury investigation); Sec. Exch. Comm’n v. Nat’l Student Mktg. Corp., 1974 WL 415, *3–4 (D.D.C. June 25, 1974) (finding no opinion work product protection where at issue was what a law firm did and did not know). Here, while there is no contention that Covington or Verderame committed any crime, what they did and why is central to this case as their actions are claimed to have resulted in a crime attributable to Rafiekian. For these reasons, any opinion work product by Covington or Verderame that pertains to the FARA filing is not protected.

I believe that means that the already substantial evidence submitted in the context of that case, including notes and testimony clearly showing that Flynn lied to Covington lawyers as they were preparing the FARA filing, can be entered into this proceeding.

What the government is asking for, then, is that Covington’s attorney-client obligations to Flynn be waived on the case in chief here, his lies about Russia. Indeed, that’s what the bulk of the conflicting sworn Flynn statements laid out in the government filing pertain to.

On December 1, 2017, the defendant entered a plea of guilty to “willfully and knowingly” making material false statements to the FBI on January 24, 2017, regarding his contacts with the Russian Ambassador. See Information; SOF at ¶¶ 3-4.1 In addition, in the Statement of the Offense, the defendant admitted that he “made material false statements and omissions” in multiple documents that he filed on March 7, 2017, with the Department of Justice pursuant to FARA, which pertained to a project for the principal benefit of the Republic of Turkey. See SOF at ¶ 5.

On November 30, 2017, defendant Flynn signed the Statement of the Offense, acknowledging: “I have read every word of this Statement of the Offense, or have had it read to me . . . . I agree and stipulate to this Statement of the Offense, and declare under penalty of perjury that it is true and correct.” See SOF at 6. During his initial plea hearing, defendant Flynn was shown this signature, and he acknowledged under oath that it was his. See Plea Tr. at 13-14, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (“12/01/2017 Plea Tr.”). Thereafter, the government read the Statement of the Offense into the record. See id. at 14-18. The defendant was asked by the Court, “Is that factual summary true and correct?,” and the defendant replied, “It is.” Id. at 18. The Court then asked whether the defendant believed the government could prove those facts at trial, to which the defendant replied “yes.” Id. at 19. Defendant Flynn was also asked at this hearing whether he had sufficient time to consult with his attorneys, to which he replied “yes,” and whether he was satisfied with the services they had provided him, to which he also responded “yes.” Id. at 6.

Defendant Flynn was originally scheduled to be sentenced on December 18, 2018. Prior to that hearing, the government submitted a sentencing memorandum that described defendant Flynn’s knowing and willful material false statements to the FBI, and his material false statements and omissions in multiple FARA filings. See Gov’t Sent’g Memo at 2-5. In his own filing, the defendant reiterated that he “d[id] not take issue” with the government’s description of his conduct. See Def. Sent’g Mem at 7 (citing Gov’t Sent’g Memo at 2-5).

As I noted, Flynn’s sworn statements in this preceding are in unreconcilable conflict, both as regards to FARA and as regards to his claim to have lied to the FBI about his conversations with Sergei Kislyak and his more recent claim that he did not lie. But by getting Covington a waiver to talk about the latter, the government intends to get abundant evidence to prove that’s true of both sets unreconcilable conflicting sworn statements, the ones about his work for Turkey and the ones about lying to the FBI about Russia.

And they make it clear they may charge Flynn with perjury once they do that, because they want Sullivan to approve that use in his order.

The order also should make clear that if the defendant’s Supplemental Motion to Withdraw his Plea of Guilty is granted, the Court may consider additional questions of the limitation on the use of this information in any subsequent trial. This limitation on the use of information should not, however, preclude the government from prosecuting the defendant for perjury if any information that he provided to counsel were proof of perjury in this proceeding.

If Sullivan approves this (and he seems to be thinking along the same lines), it means either Flynn’s motion to withdraw will be refused after Covington provides the court with additional evidence of perjury, or it will be approved after Covington provides the government with additional evidence of perjury, which the government — including the newly appointed US Attorney for DC — would then use to prosecute Flynn for perjury.

Flynn’s lawyers — who, remember, decided to risk their client’s freedom on a claim that Covington lawyers were incompetent — seem uninterested in letting the government prepare for a hearing the judge in this case has made fairly clear he intends to hold.

The government conferred by e-mail with counsel for the defendant. In response to the government’s request to amend the briefing schedule in this case, defense counsel wrote: “Our position is that at the minimum, the Department of Justice should agree to withdrawal of the plea. Accordingly, we oppose any further extension of the briefing schedule.”

But even if Sullivan denies this motion, even if Sullivan doesn’t sign the order giving Covington the cover to explain how much Flynn lied to them, the government still has adequate time to prove their case by the existing deadline on Wednesday.

It was clear going back to the early January submission of the sentencing memorandum that Flynn’s case is being very carefully reviewed by the DOJ hierarchy. That’s unlikely to have changed with the changeover in US Attorney. Which suggests that whatever else Barr’s appointment of Timothy Shea means, it likely also means that DOJ institutionally supports this aggressive response to Flynn’s gamesmanship on his guilty plea.

Update: I’m increasingly baffled by all of this, but I think this may be Sidney Powell blinking. She agrees to the continuance claiming (without explaining that she has consulted with the government) that the basis for the government’s request has changed since they emailed and asked whether they were cool with a week-long delay.

Both the relief requested and the reasons underlying the government’s Motion to Amend have changed since it conferred with the defense earlier last week. Given the government’s Motion to Confirm Waiver, which raises issues the government did not mention previously, Michael T. Flynn (“Mr. Flynn”) does not oppose the Court granting a stay of the briefing schedule with a status report due from the parties by February 20, 2020. However, it is imperative that Mr. Flynn have time to brief the issues raised by the government’s new motion regarding the attorney-client privilege.

This could be because someone got through to Flynn and explained he was facing prison on this charge and perjury charges and implored him to withdraw his request to withdraw his plea. It could be because Shea — or Barr — has decided to weigh in. It could be that, given the government’s softer request for a guidelines sentence, Flynn has cut his losses.

All this time, Sullivan has been unusually quiet.

Update: Maybe I’m missing Flynn’s response. On second thought, I think they’re claiming (who knows if it’s true) that last week the government asked for an extension for one reason, and now they’re asking for another. Which would make the inclusion of Shea on this all the more interesting, if it is true, which it’s probably not.

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

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

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

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

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

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

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

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

Almost no mention of his lies about Russia

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

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

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

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

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

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

So Flynn blames his former lawyers.

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

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

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

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

But wait.

There’s more.

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

Cursory consideration of Cray

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

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

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

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

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

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

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

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

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

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

THE DEFENDANT: No.

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

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

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

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

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

But there are two problems with her argument.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Be careful what you wish for

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

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

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

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

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

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

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

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

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

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

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

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

Mike Flynn Seizes the Rope to Hang Himself With: Flynn’s Motion to Dismiss Carter Page’s Non-Existent Plea

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

I’m collectively titling my posts on them, “Mike Flynn Seizes the Rope to Hang Himself,” which is the advice Rob Kelner gave his then-client in December 2018 when Judge Emmet Sullivan swore him in to reallocute his guilty plea, effectively arguing that if Flynn withdrew his plea, it would lead to worse consequences. Flynn’s current lawyer, Sidney Powell, argues that advice was objectively incompetent. I predict the outcome of the next few weeks will show Kelner had the better judgment.

This post from yesterday covers the government reply to Flynn’s sentencing memo.

This post will focus on Flynn’s motion to dismiss for misconduct, a 27-page motion that Flynn submitted yesterday with neither warning nor pre-approval from Sullivan. Flynn has made much of this argument before (and Sullivan has rejected it) in a filing that argued,

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution. When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime—while taking affirmative steps to ensnare him by refusing to follow procedures designed to prevent such inadvertent missteps—this amounts to conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct.

[snip]

As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

In a footnote in yesterday’s filing, Flynn lawyer Sidney Powell explains that, no, the last time she tried this argument, which Sullivan rejected in an unbelievably meticulous 92 page opinion, wasn’t actually her motion to dismiss, this is,

Contrary to a suggestion in this Court’s recent opinion, Mr. Flynn did not previously move to dismiss the case against him. ECF No. 144 at 2. As the docket sheet and this Court’s recital of motions show, this is Mr. Flynn’s only Motion to Dismiss. In Mr. Flynn’s previous filings, he made clear he would ultimately move for dismissal, that the evidence requested in his Brady motion would further support the basis for dismissal, and that the case should be dismissed.

Particularly given that much of this repeats what Powell said in the earlier motion, the claim that this is the real motion to dismiss probably won’t sit well with Judge Sullivan. But Powell has to try again, because (as I’ll show) her motion to dismiss doesn’t actually claim that Flynn is innocent of lying to the FBI about his call with Sergey Kislyak — he says the opposite. So this motion to dismiss appears designed to explain why Flynn should not be held accountable for that lie.

Powell justifies doing so because she claims she found new damning information in the IG Report on Carter Page. (She also complains that she received Flynn’s 302s since the prior motion, but presents not a single piece of evidence from them; as I’ll show in my third post on these filings, she’s probably going to regret raising them.)

Such exculpatory evidence and outrageous misconduct includes that on December 9, 2019, the Inspector General of the Department of Justice (“DOJ”) issued its 478-page report on the “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” (“IG Report”).2 The IG Report illustrates the misconduct by the government as further detailed below.

[snip]

Additionally, the IG Report shows that the government long suppressed evidence of shocking malfeasance by the leadership of the FBI and Supervisory Special Agent 1 (“SSA 1”) that was favorable to Mr. Flynn’s defense. For these reasons, and those outlined in prior briefing, Mr. Flynn moves to dismiss this entire prosecution for outrageous government misconduct and in the interest of justice.

In a probably ill-considered move, Powell blames Sullivan for not considering the IG Report in his previous opinion.

Despite the defense, the government, and this Court agreeing to abate the schedule in this case because of the pending and admittedly-relevant IG Report (ECF No. 140 and this Court’s Minute Order of November 27, 2019), this Court denied Mr. Flynn’s Motion to Compel Production of Brady Evidence without allowing for additional briefing in light of that report or considering any of the deliberate government misconduct it disclosed. ECF Nos. 143 and 144. Mr. Flynn now moves to dismiss the indictment for the additional egregious misconduct documented in the IG Report, other recently produced materials, all previously briefed issues, and in the interest of justice.

A week passed between the time the IG Report came out — which has just one small section relating to Flynn — and the date Sullivan issued his opinion. It is Powell’s job to ask him to consider any new information in it, not his job to cull through the report and find out if anything is relevant. She did not do so. Which is one of many reasons why Sullivan would be in his right to just dismiss this as untimely.

As I note in this thread, much of what follows is either a repetition of complaints that Sullivan already rejected or a claim that Mike Flynn, honored General of thirty years, is actually Carter Page, maligned gadfly, because they describe things that did injure Page but did not injure Flynn and are utterly irrelevant to the lies Flynn told on January 24, 2017.

  • Asks that Sullivan rely on a Ninth Circuit opinion on the Bundy family to reconsider Brady violations he already ruled did not happen.
  • Revisits a Jim Comey comment that was briefed before Flynn pled guilty the last time and Powell’s conspiracy theories about a draft 302 that she claims differs from the notes and the released 302s which are all consistent.
  • Invokes Ted Stevens by invoking the Henry Shuelke report, which laid out problems with the Senators prosecution, but which Sullivan has already said is an inapt comparison.
  • Mixes up the 2017 FISA order that shows (in part) that Flynn, personally, presided over FISA abuses with the 2018 FISA order that shows Chris Wray’s FBI committed querying violations that affected thousands (quite possibly in an attempt to find out who leaked details of Flynn’s comments to Sergei Kislyak).
  • Claims that the Carter Page FISA allowed the FBI to illegally obtain the communications of “hundreds of people, including Mr. Flynn,” which is a claim that doesn’t show up in the IG Report (Powell cites to it “generally,” which is her tell in this motion that she’s making shit up); while it’s possible emails from the campaign (possibly group emails on National Security) involving both Page and Flynn were collected, there is zero chance any of them pertain to the lies Flynn told on January 24, 2017. Moreover, there is virtually no chance that Flynn was communicating with Carter Page after April 2017 via encrypted messaging apps — months after both had been ousted from Trump’s circles because of their problematic interactions with Russians — which is what it likely would have taken to have been collected under the applications deemed problematic by FBI.
  • Twice claims that Flynn’s obligation (which he fulfilled) to tell DIA when he went traipsing off to RT Galas in Russia equates to CIA’s designation of Carter Page as an acceptable contact and notes that Sullivan already ruled that wasn’t exculpatory on the charges before him (the government has made it clear Flynn’s DIA briefing was actually inculpatory).
  • Claims SSA1 — whom Powell asserts, probably but not necessarily correctly, is the second Agent who interviewed Flynn — supervised Crossfire Hurricane, but doesn’t note that was only until December 2016, at least four weeks before Flynn lied to FBI agents on January 24, 2017; Powell repeatedly claims, falsely, that SSA1 supervised Crossfire Hurricane during the entire period when Carter Page was under surveillance.
  • Insinuates, with no evidence, that SSA1 knew that Case Agent 1 had excluded comments from George Papadopoulos that the frothy right believes are exculpatory but which the FBI judged correctly at the time were just a cover story.
  • Claims falsely that Lisa Page had a role in opening an investigation into Flynn.
  • Complains that the FISA applications made statements about Stefan Halper that were true but not backed by paperwork in the Woods File, even though (contrary to Flynn’s conspiracy theories) Halper never spoke with Flynn as part of tihs investigation.

Pages and pages into this, Powell admits that actually all of this would matter if she were representing Carter Page, but she claims (with no evidence, and given the scope of the Page warrants, there would be none) that it nevertheless injures her client.

While Mr. Flynn’s case is not even the focus of the IG Report, the Report reveals illegal, wrongful, and improper conduct that affected Mr. Flynn, and is the subject of an ongoing criminal investigation by United States Attorney John Durham.

Even where the IG Report does describe something that affected Flynn directly — in SSA1’s inclusion in Trump’s first briefing, in part, to see what kinds of questions he was asking — Powell manages to lard it with false claims. On top of misrepresenting how long SSA1 oversaw the investigation into Trump’s flunkies (noted above and exhibited specifically below), Powell suggests that SSA1 snuck into the August 17, 2016 intelligence briefing Flynn attended as Trump’s top national security advisor and had no purpose but to observe her client.

There were two FBI agents who interviewed Mr. Flynn in the White House on January 24, 2017—Agent Peter Strzok and SSA 1. The IG Report confirms both participated in government misconduct. As explained in further detail below, not only was Strzok so biased, calculated, and deceitful he had to be terminated from Mueller’s investigation and then the FBI/DOJ, but it has also now been revealed that SSA 1 was surreptitiously inserted in the mock presidential briefing on August 17, 2016, to collect information and report on Mr. Trump and Mr. Flynn. Moreover, SSA 1 was involved in every aspect of the debacle that is Crossfire Hurricane and significant illegal surveillance resulting from it. Further, SSA 1 bore ultimate responsibility for four falsified applications to the FISA court and oversaw virtually every abuse inherent in Crossfire Hurricane— including suppression of exculpatory evidence. See generally IG Report.

[snip]

Shockingly, as further briefed below, SSA 1 also participated surreptitiously in a presidential briefing with candidate Trump and Mr. Flynn for the express purpose of taking notes, monitoring anything Mr. Flynn said, and in particular, observing and recording anything Mr. Flynn or Mr. Trump said or did that might be of interest to the FBI in its “investigation.” IG Report at 340

[snip]

More specifically, as the Inspector General explained further in his testimony to Congress on December 11, 2019, SSA 1 surreptitiously interviewed and sized-up Mr. Flynn on August 17, 2016, under the “pretext” of being part of what was actually a presidential briefing but reported dishonestly to others as a “defensive briefing.”

[snip]

Strzok and Lisa Page texted about an “insurance policy” on August 15, 2016.20 They opened the FBI “investigation” of Mr. Flynn on August 16, 2016. IG Report at 2. The very next day, SSA 1 snuck into what was represented to candidate Trump and Mr. Flynn as a presidential briefing. IG Report at 340. [my emphasis]

The overwhelming bulk of her complaint about this is that — she claims — SSA1’s participation was secret. Reading this motion, you’d think he was hidden under the couch while the briefing was conducted. His presence, of course, was in no way surreptitious. What was secret was that Flynn was under investigation and SSA1 was overseeing it.

In one of her discussions of the briefing, Powell quotes the part of the IG Report that refutes her suggestions that SSA1 was only in this briefing to observe Flynn.

In August 2016, the supervisor of the Crossfire Hurricane investigation, SSA 1, participated on behalf of the FBI in an ODNI strategic intelligence briefing given to candidate Trump and his national security advisors, including Flynn, and in a separate briefing given to candidate Clinton and her national security advisors. The stated purpose of the FBI’s participation in the counterintelligence and security portion of the briefing was to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S.’ However, we found the FBI also had an investigative purpose when it specifically selected SSA 1, a supervisor for the Crossfire Hurricane investigation, to provide the FBI briefings. SSA 1 was selected, in part, because Flynn, who would be attending the briefing with candidate Trump, was a subject in one of the ongoing investigations related to Crossfire Hurricane. SSA 1 told us that the briefing provided him ‘the opportunity to gain assessment and possibly some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview…I would have that to fall back on.’

As the passage she quotes makes clear, that was just part of the reason why he was selected. She doesn’t mention that, as a senior counterintelligence agent, SSA1 was appropriate to give the briefing in any case, and in fact did give the equivalent first briefing to Hillary, as well.

In one place, however, Powell totally misrepresents what the purpose of this briefing was claiming that it was the defensive briefing about specific threats to the candidate.

While SSA 1’s stated purpose of the presidential briefing on August 17, 2016, was “to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S,’” IG Report at xviii (Executive Summary), the IG Report confirmed that, in actuality, the Trump campaign was never given any defensive briefing about the alleged national security threats. IG Report at 55. Thus, SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for “investigative purposes” anything Mr. Flynn and Mr. Trump said in that meeting. IG Report at 408. The agent was there only because Mr. Flynn was there. IG Report at 340. Ironically, Mr. Flynn arranged this meeting with ODNI James Clapper for the benefit of candidate Trump.

As the IG Report makes clear, these are different things. The IG Report even provides several different explanations for why the FBI did not give Trump a defensive briefing that Russia was trying to influence his campaign, but which Powell doesn’t include. Andrew McCabe’s explanation was particularly prescient.

[T]he FBI did not brief people who “could potentially be the subjects that you are investigating or looking for.” McCabe told us that in a sensitive counterintelligence matter, it was essential to have a better understanding of what was occurring before taking an overt step such as providing a defensive briefing.

You couldn’t brief Trump on a potential Russian threat with Flynn present because Flynn was considered — because of his past close ties to the GRU and his paid appearances with Russian entities, including one where he met Putin — one of the most likely people for Russia to have alerted about the email hack-and-dump plan. And, as I noted, there was a bunch of language about counterintelligence issues in the government’s original sentencing memo specifically pertaining to Flynn that should concern him if he weren’t so busy producing fodder for the frothy right. So, in fact, the FBI was right to worry (and I suspect we may hear more about this).

Moreover, as this entire effort to blow up the plea deal emphasizes, Flynn turned out to be an egregious counterintelligence risk for other reasons, as well: the secret deal he was arranging with Turkey even as this briefing occurred, which he explained, at length, under oath, to the grand jury. That is, this proceeding makes it clear that the FBI was right not to trust Mike Flynn, because, days before this briefing, his firm had committed, in secret to working on a frenemy government’s payroll.

This is tangential to Powell’s trumped up complaints about the only thing the IG Report says that directly affected her client. But — as with so much of this stunt — my suspicion is that if she presses this issue it will backfire in spectacular fashion.

In any case, the main takeaway from this motion to dismiss the plea is that virtually all the new stuff that Judge Sullivan hasn’t already ruled was irrelevant in meticulous fashion doesn’t affect Mike Flynn, it affects Carter Page. And the stuff that does affect Flynn directly is probably not something he wants to emphasize before Sullivan weighs the gravity of his lies.

More importantly, for the motion to withdraw his plea, nothing here undercuts the fact that Mike Flynn pled guilty to his lies about Russia.

Mike Flynn Seizes the Rope to Hang Himself With: Probation for Petraeus

The government and Mike Flynn submitted several motions today:

Eventually, I’ll hit them all in this post. But for now, I’m going to address just the government reply to Flynn’s sentencing memo, because I read it very very differently than virtually everyone who has read it.

A number of people are shocked by what seems to be the government’s deference to Mike Flynn in the memo, particularly their recommendation for a guidelines sentence — which might include probation. It’s true, the memo mentions probation over and over.

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]

Here, the applicable Guidelines range already encompasses a potential penalty of probation and there is no lower possible penalty for the offense of conviction.

[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.

The memo then goes on to nod to the issues Flynn raised. It acknowledges, then rebuts, Flynn’s complaints about what he claims is the government asking him to lie about FARA. But, the government notes, regardless of who is right, it wouldn’t change the guidelines sentence.

Importantly, regardless of whether or not the Court considers the defendant’s FARA false statements in fashioning its sentence, the applicable Guidelines range is still 0 to 6 months of incarceration.

It notes Flynn’s apparent backtracking on acknowledgement of responsibility. But, the government notes, regardless of who is right, it wouldn’t change the guidelines sentence.

But again, this makes no difference to the applicable Guidelines range – a two-level reduction in his base offense level would still result in a range of 0 to 6 months of incarceration.

Thus far, the government is doing precisely what it did in its own sentencing memo, emphasize that the government position has not changed. It asked for a guidelines sentence in December 2018, it asked for a guidelines sentence earlier this month, and it is recommending a guidelines sentence here. Anything outside those guidelines is Judge Emmet Sullivan’s decision.

Where the memo is absolutely fucking genius, though, is where it addresses Flynn’s emphasis that because he was a General forever, he should get probation. Every memo Flynn has submitted of late has basically argued that because he gave his life to the country, he should get special treatment.

As the government notes, in the very last words of their memo, that has happened in the past.

In terms of comparative sentences in cases involving arguably similarly-situated defendants, we note that there are several cases involving high-ranking government officials where probationary sentences were imposed. Former National Security Advisor Sandy Berger stole classified information from the National Archives, destroyed that information, and then lied to the government about his conduct. At the government’s recommendation, based in part on Berger’s cooperation with the government, he received a probationary sentence. See Gov’t Sent’g Mem. at 9, United States v. Berger, No. 05-mj-00175 (D.D.C. Sept 6. 2005) (Doc. 13); see also Factual Basis for Plea (D.D.C. Apr. 1, 2005) (Doc. 6). Likewise, after General David Petraeus pleaded guilty to the unauthorized retention and removal of classified documents, in violation of 18 U.S.C. § 1924, he received a probationary sentence. United States v. Petraeus, No. 15-cr-47 (W.D.N.C.). Here, the Court should consider these and other arguably analogous cases, along with all of the other relevant facts in this case, in fashioning a sentence that is “sufficient but not greater than necessary” to satisfy the statutory sentencing requirements under Title 18, United States Code, Section 3553(a).

Boy oh boy do these prosecutors look reasonable, huh, noting that powerful people sometimes get probation for things the little people go to prison for.

Except we know how Emmet Sullivan feels about Generals who think they should get special treatment because they’re high-ranking Generals, because he said so explicitly when Rob Kelner raised David Petraeus back in December 2018.

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

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

[snip]

THE COURT: All right. Let me just say this. I probably shouldn’t. Having said that, I probably shouldn’t. I don’t agree with the Petraeus sentence. I’m sorry. I don’t see how a four-star general gives classified information to someone not authorized to receive it and then is allowed to plead to a misdemeanor, but I don’t know anything about it. Maybe there were extenuating circumstances. I don’t know. It’s none of my business, but it’s just my opinion.

And that has no impact — I would not take that into consideration in whatever sentence I impose here. Just based upon what I know about that case, I just disagreed with it. That’s all.

Yes, the prosecutors look totally docile in this memo. They’re disputing Flynn’s point, but ultimately they’re recommending the same thing they’ve always recommended, a guidelines sentence. They’re doing that because it inoculates them against any claim that their decision not to have Flynn testify affected his sentence, and they’re doing so to make clear that what Flynn is doing, in requesting to blow everything up, he’s doing even though the same guidelines sentence remains on the table. What comes next will be entirely his own fault.

And, yes, they mention probation, just like Flynn did. But in doing so, they almost certainly did so in a way that only exacerbates Sullivan’s innate disgust with powerful people who ask for special treatment.

Sidney Powell Wants to Have Mike Flynn’s Acceptance of Responsibility and Claims of Innocence Too

Eight days ago, in a filing moving to withdraw Mike Flynn’s plea deal, Sidney Powell said this:

Michael T. Flynn is innocent.

Today, in her sentencing memo, Sidney Powell makes no such claim. Instead, she claims that since November 2017 — 8 months after the second of two lies he pled guilty to, under oath, twice — he has mostly told the truth (a claim that is probably not true).

Since November 2017 (and before), Mr. Flynn told the government the truth about every question it asked him, including what he knows concerning the Flynn Intel Group’s (“FIG”) involvement with Inovo BV, Ekim Altepkin, and the Government of Turkey.

Her only mentions of the primary crime to which Mike Flynn pled guilty are — first — to nod to a brief that backfired when it was filed the first time and which Flynn disavowed under oath before Judge Emmet Sullivan.

Mr. Flynn previously briefed the unique circumstances of the January 24, 2017 FBI “interview” at issue. ECF No. 50 at 7-9.

And, then, to call his out and out lies to the FBI about what he said to the Russian Ambassador an “alleged false statement.”

Admittedly, Mr. Flynn was a high-ranking government official, as was Mr. Wolfe who was charged with a § 1001 violation. That is the only similarity. Mr. Flynn did not participate in any “repeated” conduct. He did not use his position to participate in illegal conduct. Additionally, Mr. Flynn’s alleged false statement did not result in the “significant disruption of an important governmental function” nor did it “significantly impact national security.”

The rest of her sentencing memo, aside from competent arguments about base level sentences and reminding over and over that Flynn served in the military for a long time (which backfired when Rob Kelner raised it in December 2018), consists of the same arguments she made in her motion to withdraw his plea, arguments that conflict in key ways with his sworn grand jury testimony and blame everyone else for false claims that not only reflect what he told his lawyersbut which he signed his name to, repeatedly.

The government also continues its campaign to hold Mr. Flynn responsible for false statements in a FARA filing. It ignores the facts in its possession as well as the decision of another court. Any misstatements in the March 2017 FARA filing at issue were not the fault of Mr. Flynn. He gave his lawyers complete and accurate documents and information. Moreover, he did his part to make sure any FARA filing was accurate. The FARA statements listed in the Statement of Offense (ECF No. 4) are either not false or not attributable to Mr. Flynn.

To counter these claims, government can and will lay out:

  • How the Covington notes and lawyers’ 302s show Flynn lied to his lawyers, which led directly to false statements in his FARA filing
  • Show how Flynn’s sworn grand jury testimony (which she doesn’t mention) undermines her claims that the EDVA prosecutors tried to get Flynn to lie last year
  • Lay out how Powell is making utterly misleading claims about what the government said about Flynn’s exposure to false statements and conspiracy charges
  • Explain that the reason Judge Anthony Trenga ruled there wasn’t sufficient evidence to support a guilty verdict against Bijan Kian was precisely because Flynn reneged on the testimony laid out in his sworn grand jury transcript

That will leave Flynn with his motion to withdraw his guilty plea in tatters, and any claim he is taking responsibility for his crimes shot to hell.

The Procedural Weakness of Sidney Powell’s Attempt to Blow Up Mike Flynn’s Plea Deal

As I noted earlier this week, after six months of threatening to do so, Mike Flynn has formally moved to blow up his plea deal. His initial motion to justify doing so was all but silent about the main crime he pled guilty to — lying about his phone calls with Sergei Kislyak — and instead presented a bunch of block quotes purporting to show Brandon Van Grack pushed him to lie, but often in fact laying out proof that Flynn lied — to the FBI, to his own lawyers, even to Judge Emmet Sullivan himself.

So the bid to gain any advantage beyond delay until such time as Trump can pardon Flynn isn’t going so well, as a matter of legal argument.

But a recent docket gaffe demonstrates the degree to which this effort is a procedural shitshow, too.

The parties were supposed to be operating under Emmet Sullivan’s order, dated December 16, to provide supplements to the sentencing memos they submitted back in 2018, which — after several government continuances — meant the government’s supplement sentencing memo was due January 7 and Flynn’s was due January 22. The government met that deadline.

Sometime after the government submission, Flynn’s lawyers asked the government for a continuance based on the government’s changed recommendations, which the government alerted Flynn to last September. The government agreed to a delay — for sentencing. But then at the last minute, after planning to do so for six months, Flynn’s team pulled a head fake, and informed the government they really wanted a delay so they could figure out some basis on which to withdraw his plea.

Mr. Flynn also requests a continuance of the sentencing date set for January 28, 2020, for thirty days or until February 27, 2020, or such other subsequent day that is convenient to the Court and counsel, and a corresponding extension of time to file any supplemental sentencing memorandum (from January 22, 2020, to February 21, 2020). The continuance is requested to allow time for the government to respond to the most recent aspects of this Motion and for Mr. Flynn to provide the additional briefing he needs to protect the record and his constitutional rights in light of significant developments in the last thirty days.

In response, Sullivan deferred on Flynn’s motion to withdraw his plea, and set the following new deadlines in response to the request for continuance:

  • January 22: Supplemental motion to withdraw
  • February 5: Government response to motion to withdraw
  • February 12: Flynn reply on motion to withdraw

There was no explicit new deadline in there for a new sentencing memo from Flynn, meaning it would be due on January 22.

In response, Flynn asked for two more days, allowing it time to respond on sentencing and bumping the withdraw 2 days out on the first two deadlines, or 5 on the reply. Flynn also asked for 5PM deadlines even though Sullivan has been insisting on noon deadlines for months.

  • January 24, 5:00PM: Supplemental motion to withdraw
  • February 7, 5:00PM: Government response to motion to withdraw
  • February 17, 5:00PM: Flynn reply on motion to withdraw

Sullivan, today, responded to that request by granting the initial deadlines but shortening the last and insisting on his noon deadlines.

  • January 24, 12:00PM: Supplemental motion to withdraw
  • February 7, 12:00PM: Government response to motion to withdraw
  • February 13, 12:00PM: Flynn reply on motion to withdraw

All that’s fairly uncontroversial, just a dance over how much time Sullivan is willing to bump a sentencing after trying to get it done so that Flynn can lay what will amount to a basis for appeal on a risky scheme to blow up his plea.

But that left Flynn with two sets of documents: the sentencing memo, due January 22, which will be critical if they lose the request to withdraw, which is likely, and the supplemental motion to withdraw, due January 24, which must meet a very high legal bar and lay the groundwork for appeal, which is probably where this is going.

And then Flynn just spluttered out something called a supplemental brief to withdraw. The brief was just six pages, didn’t advance any new legal arguments, and repeated many of the same arguments (and one of the same exhibits) submitted last week. Effectively, that amounted to legally shooting their wad on an argument totally insufficient to an attempt to take back two guilty pleas, without ever addressing the crime to which Flynn actually pled guilty, lying about his Kislyak conversations.

Again, Flynn’s team has known they were going to make this argument since June, and they spluttered out their argument just like that.

They must have realized that they, formally at least, had fucked up, because they resubmitted the same thing but with a footnote:

This is not Mr. Flynn’s “Supplemental Motion to Withdraw for Alternative Additional Reasons” currently due to be filed on January 22, 2020, for which we have requested two additional days to complete and file.

This is just an honest fuckup by people who are playing a really high stakes game of poker and really frazzled about it, even if they’ve been planning on all this since June.

But it appears Flynn really hasn’t thought up a good reason to argue why he has to withdraw even from his plea agreement, much less the underlying lies about Kislyak.

Which is a pretty lousy position to be in when you’re playing such a high stakes gambit.

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

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

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

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

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

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

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

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

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

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

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

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

A: Yes, yeah.

[snip]

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

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

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

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

[snip]

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

A: Yes.

[snip]

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

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

[snip]

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

A: Yep, I do, yeah.

[snip]

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

A: My name.

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

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

[snip]

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

A: No.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

The government is still mean

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

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

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

And then she says the government is mean again.

Flynn tricked the government into agreeing to a one month continuance

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

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

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

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

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

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

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

Prosecutors Invite Emmet Sullivan to Throw the Book at Mike Flynn

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The government asks Judge Sullivan to allocute Flynn again

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

The government recalls Judge Sullivan’s past disgust with Flynn

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

[snip]

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

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

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

Judge Emmet Sullivan to Mike Flynn: You Sir, Are No Ted Stevens

Judge Emmet Sullivan just denied all of Mike Flynn’s efforts to blow up his plea deal. While it addresses his long list of demands one by one, even before he gets there, it’s clear he’s pretty fed up with this whole effort. Along the way, Sullivan accuses Flynn’s lawyer, Sidney Powell, of not ethically citing one of her sources.

The Court notes that Mr. Flynn’s brief in support of his first Brady motion lifted verbatim portions from a source without attribution. Compare Def.’s Br., ECF No. 109 at 11-12, 15-16, 15 n.21, with Brief of the New York Council of Defense Lawyers et al. as Amici Curiae Supporting Petitioner, Brown v. United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906 at *5-6, *8, *12-13, *12 n.6. In a footnote, Mr. Flynn’s brief merely provides a hyperlink to the “excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown v. United States.” Def.’s Br., ECF No. 109 at 16 n.22.

The District of Columbia Rules of Professional Conduct apply to the proceedings in this Court. See LCrR 57.26. Rule 8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” D.C. Rules of Prof’l Conduct R. 8.4(c); see In re Ayeni, 822 A.2d 420, 421 (D.C. 2003) (per curiam) (lawyer’s plagiarized brief violated Rule 8.4(c)). “[C]itation to authority is absolutely required when language is borrowed.”

He also reminded Flynn that before he pled guilty the second time, he (Sullivan) engaged in a sworn colloquy to prevent precisely the kind of back-tracking on his plea Flynn has been engaged in since June.

On December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a second time. Sentencing Hr’g Tr., ECF No. 103 at 5, 16. During that hearing, the Court extended the plea colloquy in view of Mr. Flynn’s statements in his sentencing memorandum, which raised questions as to whether Mr. Flynn sought to challenge the conditions of the FBI interview. See generally Def.’s Mem. in Aid of Sentencing, ECF No. 50 at 6-18. In response to the Court’s question, defense counsel did not express “any concerns that potential Brady material or other relevant material was not provided to [Mr. Flynn].” Sentencing Hr’g Tr., ECF No. 103 at 10. Defense counsel affirmed to this Court that Mr. Flynn was not entitled to any additional information. Id. at 10-11. Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 FBI interview and the allegations of misconduct against FBI officials. Id. at 11-12. And Mr. Flynn declined the Court’s invitation for the appointment of independent counsel to advise him. Id. at 9-10.

But perhaps the worst sign of Sullivan’s frustration with this ploy comes way at the end of his order, where he says explicitly that Flynn’s case does not resemble that of Ted Stevens, even though Powell has tried to make that claim over and over.

This case is not United States v. Theodore F. Stevens, Criminal Action No. 08–231(EGS), the case that Mr. Flynn relies on throughout his briefing.

He even hints that if he had found Brady violations, all that would get Flynn would be a trial.

Even if Mr. Flynn established a Brady violation in this case, dismissal would be unwarranted because “[t]he remedy for a Brady violation is retrial, not dismissal.” United States v. Borda, 941 F. Supp. 2d 16, 19 n.1 (D.D.C. 2013) (citing Pettiford, 627 F.3d at 1228). “[D]ismissal is appropriate only as a last resort, where no other remedy would cure prejudice against a defendant.” Pasha, 797 F.3d at 1139.

Sullivan scheduled sentencing for January 28, just over a month away.

Flynn had better hope his continued efforts to piss off Sullivan cool off before then.

The Flynn Predication

I’m really just starting a deep dive into the DOJ IG FISA Report. But as background for another post, I just want to look at the predication for the investigation into Mike Flynn.

The report describes how the entire investigation came after Australia passed on the tip regarding George Papadopoulos blabbing his mouth to Alexander Downer. As passed on, the tip did not provide details we’ve now come to grow familiar with. Not only was there no mention of Joseph Mifsud, but there was no indication at all where Papadopoulos learned this information.

The FBI opened Crossfire Hurricane in July 2016 following the receipt of ·certain information from a Friendly Foreign Government (FFG). According to the information provided by the FFG, in May 2016, a Trump campaign foreign policy advisor, George Papadopoulos, “suggested” to an FFG official that the Trump campaign had received “some kind of suggestion” from Russia that it could assist with the anonymous release of information that would be damaging to Hillary Clinton (Trump’s opponent in the presidential election) and President Barack Obama. At the time the FBI received the FFG information, the U.S. Intelligence Community (USIC), which includes the FBI, was aware of Russian efforts to interfere with the 2016 U.S. elections, including efforts to infiltrate servers and steal emails belongfng to the Democratic National Committee (DNC) and the Democratic Congressional Campaign Committee. The FFG shared this information with the State Department on July 26, 2016, after the internet site Wikileaks began releasing emails hacked from computers belonging to the DNC and Clinton’s campaign manager. The State Department advised the FBI of the information the next day.

FBI opened the investigation to find out whether anyone was wittingly or unwittingly part of the Russian election year operation (the unwitting part is important, because FBI did not assume at the time anyone was knowingly “colluding” with Russia.

Two of the subjects — Carter Page and Paul Manafort — were already under investigation. Papadopolous was a clear subject since he’s the one who blabbed his mouth.

Which means Mike Flynn is the only one who for whom the investigation happened because of his Russian ties and affiliation with the campaign, which is probably why his attorney is making batshit arguments about being trapped and demanding “Brady” information that has nothing to do with his case.

The report explains that Flynn was a subject because of his December 2015 trip to Russia and his “various ties to state-affiliated entities of Russia.”

The opening EC for the Flynn investigation stated that there was an articulable factual basis that Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.” The EC cross-referenced the predication for Crossfire Hurricane and stated that Flynn was an advisor to the Trump campaign, had various ties to state-affiliated entities of Russia, and traveled to Russia in December 2015.

On top of some speeches to Russian companies, those ties would have involved a fairly warm relationship with the head of GRU (which had already been IDed as responsible for the hack-and-leak operation) and ongoing conversations with Sergei Kislyak.

But ultimately, Flynn became a subject because he might have been the source for Papadopoulos of advance notice of the hack-and-leak operation, and seemed to be the focus of a whole lot of Russian attention.

The early investigation would have shown that Flynn alerted DIA of those ties (though the government currently claims some of that reporting was actually inculpatory). Which is probably why the FBI didn’t think Flynn was a witting recruit of Russia.

But then, even as FBI was deciding he was not a witting recruit, FBI discovered his December conversations with Sergey Kislyak (that they didn’t focus on them in real time is a testament that they were not working very aggressively against Flynn). Flynn then got the entire Trump transition to lie about that call, something that Sally Yates has credibly explained would raise concerns that he might be vulnerable to further recruitment.

On January 24, 2017, Flynn not only lied to the FBI about his sanctions discussion with Kislyak, but lied about two other conversations with Kislyak (the first being the Israeli settlement conversation, another being at least one conversation during the campaign). At that point, the question was whether those were material lies designed to obstruct the investigation.

Still, on January 27, the FBI would have gotten an answer to the question that kicked off the entire investigation: how had Papadopoulos learned — in advance — that Russia planned to dump information harming Hillary? In his first interview with the FBI, Papadopoulos made it clear he had interacted closely with Mifsud, whom FBI already suspected was a Russian asset.

Having answered that question, the FBI then wrote up a memo that concluded Flynn was not a Russian agent — not a witting Russian recruit — on January 30. That didn’t answer the question about whether he was an unwitting recruit. Indeed, according to Robert Mueller, that question was still being pursued in May.

But from that point forward, Flynn (and Trump) did one after another thing — including Flynn’s attempts to avoid registering his Turkish lobbying — that merited ongoing investigation.

That’s probably not going to be enough to sustain Sidney Powell’s claims he was entrapped.

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