2016 Presidential Election Archives - Page 119 of 184

The Significance of the James Wolfe Sentence for Mike Flynn, Leak Investigations, and the Signal Application

Yesterday, Judge Ketanji Brown Jackson sentenced former SSCI head of security James Wolfe to two months in prison for lying to the FBI. In her comments announcing the sentence, Jackson explained why she was giving Wolfe a stiffer sentence than what George Papadopoulos and Alex van der Zwaan received: because Wolfe had abused a position of authority.

“This court routinely sentences people who come from nothing, who have nothing, and whose life circumstances are such that they really don’t have a realistic shot of doing anything other than committing crimes,” Jackson said. “The unfortunate life circumstances of those defendants don’t result in a lower penalty, so why should someone who had every chance of doing the right thing, a person who society rightly expects to live up to high moral and ethical standards and who has no excuse for breaking the law, be treated any better in this regard.”

[snip]

Wolfe’s case was not part of special counsel Robert Mueller’s investigation, but the judge compared his situation to two defendants in the Mueller probe who also pleaded guilty to making false statements — former Trump campaign adviser George Papadopoulos, who spent 12 days in prison, and Dutch lawyer Alex van der Zwaan, who was sentenced to 30 days. Jackson concluded that Wolfe’s position as head of security for the Intelligence Committee was an “aggravating” factor.

The public shame he had endured, and the loss of his job and reputation, were not punishment enough, the judge said, but were rather the “natural consequence of having chosen to break the law.”

“You made blatant false statements directly to FBI agents who questioned you about matters of significance in the context of an ongoing investigation. And if anything, the fact that you were a government official tasked with responsibility for protecting government secrets yourself seems to make you more culpable than van der Zwaan and Papadopoulos, who held no such positions,” Jackson said.

While the resolution of this case is itself notable, it has likely significance in three other areas: for Mike Flynn, for DOJ’s leak investigations, and for encrypted messaging apps.

Emmet Sullivan will cite this sentence as precedent

It’s still far from clear that Emmet Sullivan will be sentencing Mike Flynn three months from now. Given Trump’s increasingly unstable mood, Flynn might get pardoned. Or, Flynn might try to judge shop, citing Sullivan’s invocation of treason Tuesday.

But if Sullivan does eventually sentence Flynn and if he still feels inclined to impose some prison time to punish Flynn for selling out his country, he can cite both this sentence and the language Jackson used in imposing it. Like Wolfe, Flynn occupied a (arguably, the) position of great responsibility for protecting our national security. Sullivan seems to agree with Jackson that, like Wolfe, Flynn should face more consequences for abusing the public trust. So Wolfe’s sentence might start a countertrend to the David Petraeus treatment, whereby the powerful dodge all responsibility.

(Note, this is a view that Zoe Tillman also expressed yesterday.)

DOJ may rethink its approach to using false statements to avoid the difficulties of leak cases

I have zero doubt that DOJ prosecuted Wolfe because they believe he is Ellen Nakashima’s source for the story revealing that Carter Page had been targeted with a FISA order, which is how they came to focus on him in the first place. But instead of charging him with that, they charged him for lying about his contacts with Nakashima, Ali Watkins, and two other journalists (and, in their reply to his sentencing memo, made it clear he had leaked information to two other young female national security reporters). In the sentencing phase, however, the government asked for a significant upward departure, a two year sentence that would be equivalent to what he’d face if they actually had proven him to be Nakashima’s source.

While the government provided circumstantial evidence he was Nakashima’s source — in part, her communications to him in the aftermath of the story — he convincingly rebutted one aspect of that claim (a suggestion that she changed her email footer to make her PGP key available to him). More importantly, he rightly called out what they were doing, trying to insinuate he had leaked the FISA information without presenting evidence.

The government itself admitted no fewer than four times in its opening submission that it found no evidence that Mr. Wolfe disclosed Classified Information to anyone. See infra Part I.A. Nonetheless, the government deploys the word “Classified” 58 times in a sentencing memorandum about a case in which there is no evidence of disclosure of Classified Information—let alone a charge.

[snip]

The government grudgingly admits that it lacks evidence that Mr. Wolfe disclosed Classified Information to anyone. See, e.g., Gov. Mem. at 1 (“although the defendant is not alleged to have disclosed classified information”); id. at 6 (“notwithstanding the fact that the FBI did not uncover evidence that the defendant himself disclosed classified national security information”); id. at 22 (“[w]hile the investigation has not uncovered evidence that Wolfe disclosed classified information”); id. at 25 n.14 (“while Wolfe denied that he ever disclosed classified information to REPORTER #2, and the government has no evidence that he did”).

The Court should see through the government’s repetition of the word “Classified” in the hope that the Court will be confused about the nature of the actual evidence and charges in this case and sentence Mr. Wolfe as if he had compromised such information.1

1 Similarly, the government devotes multiple pages of its memorandum describing the classified document that Mr. Wolfe is not accused of having disclosed. And although the government has walked back its initial assertion that Mr. Wolfe “received, maintained, and managed the Classified Document” (Indictment ¶ 18) to acknowledge that he was merely “involved in coordinating logistics for the FISA materials to be transported to the SSCI” (Gov. Mem. at 10), what the government still resists conceding is the fact that Mr. Wolfe had no access to read that document, let alone disclose any part of it. Beyond providing an explanation of how the FBI’s investigation arose, that document has absolutely no relevance to Mr. Wolfe’s sentencing, but it and its subject, an individual under investigation for dealings with Russia potentially related to the Trump campaign, likely have everything to do with the vigor of the government’s position.

It’s unclear, at this point, whether the government had evidence against Wolfe but chose not to use it because it would have required imposing on Nakashima’s equities (notably, they appear to be treating Nakashima with more respect than Ali Watkins, though it may be that they only chose to parallel construct Ali Watkins’ comms) and introduce classified evidence at trial. It may be that Wolfe genuinely isn’t the culprit.

Or it may be that Wolfe’s operational security was just good enough to avoid leaving evidence.

Whatever it is, particularly in a culture of increasing aggressiveness on leaks, the failure to get Wolfe here may lead DOJ to intensify its other efforts to pursue leakers using the Espionage Act.

DOJ might blame Signal and other encrypted messaging apps for their failure to find the Carter Page FISA culprit

And if DOJ believes they couldn’t prove a real case against Wolfe because of his operational security, they may use it to go after Signal and other encrypted messaging apps.

That’s because Wolfe managed to hide a great deal of his communications with journalists until they had sufficient evidence for a Rule 41 warrant to search his phone (which may well mean they hacked his phone). Here’s what it took to get Wolfe’s Signal texts.

Once the government discovered that Wolfe was dating Watkins, they needed to find a way to investigate him without letting him know he was a target, which made keeping classified information particularly difficult. An initial step involved meeting with him to talk about the leak investigation — purportedly of others — which they used as an opportunity to image his phone.

The FBI obtained court authority to conduct a delayed-notice search warrant pursuant to 18 U.S.C. § 3103a(b), which allowed the FBI to image Wolfe’s smartphone in October 2017. This was conducted while Wolfe was in a meeting with the FBI in his role as SSCI Director of Security, ostensibly to discuss the FBI’s leak investigation of the classified FISA material that had been shared with the SSCI. That search uncovered additional evidence of Wolfe’s communications with REPORTER #2, but it did not yet reveal his encrypted communications with other reporters.

Imaging the phone was not sufficient to discover his Signal texts.

Last December and this January, the FBI had two more interviews with Wolfe where they explicitly asked him questions about the investigation. At the first one, even after he admitted his relationship with Watkins, Wolfe lied about the conversations he continued to have on Signal.

The government was able to recover and view a limited number of these encrypted conversations only by executing a Rule 41 search warrant on the defendant’s personal smartphone after his January 11, 2018 interview with the FBI. It is noteworthy that Signal advertises on its website that its private messaging application allows users to send messages that “are always end-to-end encrypted and painstakingly engineered to keep your communication safe. We [Signal] can’t read your messages or see your calls, and no one else can either.” See Signal Website, located at https://signal.org. The government did not recover or otherwise obtain from any reporters’ communications devices or related records the content of any of these communications.

Then, in a follow-up meeting, he continued to lie, after which they seized his phone and found “fragments” of his Signal conversations.

It is noteworthy that Wolfe continued to lie to the FBI about his contacts with reporters, even after he was stripped of his security clearances and removed from his SSCI job – when he no longer had the motive he claimed for having lied about those contacts on December 15. During a follow-up voluntary interview at his home on January 11, 2018, Wolfe signed a written statement falsely answering “no” to the question whether he provided REPORTER #2 “or any unauthorized person, in whole or in part, by way of summary, or verbal [or] non-verbal confirmation, the contents of any information controlled or possessed by SSCI.” On that same day, the FBI executed a second search warrant pursuant to which it physically seized Wolfe’s personal telephone. It was during this search, and after Wolfe had spoken with the FBI on three separate occasions about the investigation into the leak of classified information concerning the FISA application, that the FBI recovered fragments of his encrypted Signal communications with REPORTERS #3 and #4.

They specify that this second warrant was a Rule 41 warrant, which would mean it’s possible — though by no means definite — that they hacked the phone.

The government was able to recover and view a limited number of these encrypted conversations only by executing a Rule 41 search warrant on the defendant’s personal smartphone after his January 11, 2018 interview with the FBI. It is noteworthy that Signal advertises on its website that its private messaging application allows users to send messages that “are always end-to-end encrypted and painstakingly engineered to keep your communication safe. We [Signal] can’t read your messages or see your calls, and no one else can either.” See Signal Website, located at https://signal.org.

Mind you, this still doesn’t tell us much (surely by design). In another mention, they note Signal’s auto-delete functionality.

Given the nature of Signal communications, which can be set to delete automatically, and which are difficult to recover once deleted, it is impossible to tell the extent of Wolfe’s communications with these two reporters. The FBI recovered 626 Signal communications between Wolfe and REPORTER #3, and 106 Signal communications between Wolfe and REPORTER #4.

Yet it remains unclear (though probably likely) that the “recovered” texts were Signal (indeed, given that he was lying and the only executed the Rule 41 warrant after he had been interviewed a second time, he presumably would have deleted them then if not before). DOJ’s reply memo also reveals that Wolfe deleted a ton of his texts to Watkins, as well.

The defendant and REPORTER #2 had an extraordinary volume of contacts: in the ten months between December 1, 2016, and October 10, 2017, alone, they exchanged more than 25,750 text messages and had 556 phone calls, an average of more than 83 contacts per day. The FBI was unable to recover a significant portion of these text messages because they had been deleted by the defendant.

All of this is to say two things: first, the government would not pick up Signal texts — at least not deleted ones — from simply imaging a phone. Then, using what they specify was a Rule 41 warrant that could indicate hacking, they were able to obtain Signal. At least some of the Signal texts the government has revealed pre-date when his phone was imaged.

That’s still inconclusive as to whether Wolfe had deleted Signal texts and FBI was able to recover some of them, or whether they were unable to find Signal texts that remained on his phone when they imaged it in October.

Whichever it is, it seems clear that they required additional methods (and custody of the phone) to find the Signal texts revealing four relationships with journalists he had successfully hidden until that point.

Which is why I worry that the government will claim it was unable to solve the investigation into who leaked Carter Page’s FISA order because of Signal, and use that claim as an excuse to crack down on the app.

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The Moving Parts: The Walls Come Down around Trump

The other day (I forget which day it was, to be honest) I wondered aloud whether, as it became clear the walls were collapsing around Trump, he’d make a rash move to pay off his debts, perhaps to salvage something for his post-Presidenting life.

I’m not sure we’re quite at that point yet. But in recent days, a ton has happened it’s hard to make sense of.

This post doesn’t pretend to offer answers. I just want to write down everything I think is happening in one place — blogger’s prerogative, call it.

Mattis resigns, citing Trump’s fondness for authoritarians

The most alarming news is not that James Mattis resigned, but how he did so. In his resignation letter, he cited the importance of NATO, and China and Russia’s authoritarianism that leads them to promote their interest over that of their neighbors, America, and our allies, before he made it clear that Trump disagrees with Mattis in rejecting those authoritarian values.

One core belief I have always held is that our strength as a nation is inextricably linked to the strength of our unique and comprehensive system of alliances and partnerships. While the US remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances and showing respect to those allies. Like you, I have said from the beginning that the armed forces of the United States should not be the policeman of the world. Instead, we must use all tools of American power to provide for the common defense, including providing effective leadership to our alliances. NATO’s 29 democracies demonstrated that strength in their commitment to fighting alongside us following the 9-11 attack on America. The Defeat-ISIS coalition of 74 nations is further proof.

Similarly, I believe we must be resolute and unambiguous in our approach to those countries whose strategic interests are increasingly in tension with ours. It is clear that China and Russia, for example, want to shape a world consistent with their authoritarian model — gaining veto authority over other nations’ economic, diplomatic, and security decisions — to promote their own interests at the expense of their neighbors, America[,] and our allies. That is why we must use all the tools of American power to provide for the common defense.

My views on treating allies with respect and also being clear-eyed about both malign actors and strategic competitors are strongly held and informed by over four decades of immersion in these issues. We must do everything possible to advance an international order that is most conducive to our security, prosperity and values, and we are strengthened in this effort by the solidarity of our alliances.

Because you have the right to have a Secretary of Defense whose views are better aligned with yours on these and other subjects, I believe it is right for me to step down from my position. [my emphasis]

The precipitating event, though, was Trump’s decision to pull out of Syria.

Officials said Mr. Mattis went to the White House on Thursday afternoon in a last attempt to convince Mr. Trump to keep American troops in Syria, where they have been fighting the Islamic State. He was rebuffed, and told the president that he was resigning as a result.

One source says that Trump’s decision to close the Special Forces base in Syria is part of the problem.

The US is set to shut a special forces base in Syria that has been the subject of repeated Russian complaints, and that some US officials have cast as a key part of US efforts not just to defeat ISIS but to counter Iranian influence in the country.

Muhannad al-Talla, a rebel commander at al-Tanf, a US base near the Syrian border with Jordan, told BuzzFeed News that the base would see the withdrawal of the US troops who have trained and fought alongside rebels there.

I’m wondering if this base was involved in the shellacking of Putin ally Yevgeniy Prigozhin’s mercenaries.

Another is Erdogan’s threat (or promise) to massacre our longstanding Kurdish allies.

Defense officials tell me Mattis went to the White House to discuss Syria & that he was livid after reading reports that Turkey’s Defense Minister threatened to kill US-backed Kurds & put them in ditches once the US withdrew. He was incensed at this notion of betrayal of an ally.

Effectively, it seems, Mattis told Trump, “it’s me or Vladimir Putin” … and Trump chose Putin.

Erdogan exercises leverage — or is he the messenger boy?

But it wasn’t exactly — or just — Putin that finally got Trump to deliver on the payback he started delivering 14 hours after polls closed in 2016. It was Recep Tayyip Erdogan. As I noted, Trump met with Erdogan in Argentina but not — after the Michael Cohen allocution made it clear Putin was enticing Trump with a Tower deal in 2016 — Putin.

Multiple reports say a call Trump had with Erdogan on Friday was the precipitating factor. Here’s a really alarming account of that call.

That leads me to wonder what leverage Turkey, specifically, has over Trump, such that he’d pull out of Syria in response to a threat to massacre the Kurds, which will make it easy for Turkey to massacre the Kurds.

And I have to believe Turkey’s ploy with the Jamal Khashoggi execution is part of it. Erdogan never gave a shit that the Saudis lured a dissident to their soil to dismember alive. Erdogan himself pursues such repression, even if he conducts it with a bit more cover.

Indeed, whatever Erdogan has over Trump also has him considering extraditing Fethullah Gulen to Turkey for what would certainly be similar treatment — the payoff Turkey was requesting back in December 2016 when Trump’s chosen National Security Advisor was still hiding that he had been an unregistered agent for Turkey.

Perhaps Turkey has proof not just implicating Mohammed bin Salman in the execution, but Jared Kushner in green-lighting it, or possibly even Trump?

Mueller’s moves toward endgame

It’s hard — particularly given comments from people like Nancy Pelosi — to separate all this from what feels like an approaching Mueller (attempted) endgame. The lead-up to Flynn’s aborted sentencing featured the following:

Flynn makes an ill-considered attack on the legitimacy of the Mueller probe
Emmet Sullivan orders the release of the documents with which Flynn was attempting to undercut Mueller
Sullivan orders the far more damning Flynn 302 that, among other things, reveals that Turkey and Russia both had compromising information on Trump and Flynn
DOJ indicts Flynn’s business partners for hiding how Turkey angled to force DOJ to extradite Gulen
At Flynn’s sentencing hearing, Sullivan emphasizes that Flynn had been an agent of Turkey while ostensibly working for Trump and mentions the word treason

Plus there’s evidence that Jared Kushner — who has been the boy plaything for all these ruthless players — probably tried to attack Flynn even while he was having a grocery store tabloid pimp the Saudis.

And it was revealed that the Mystery Appellant refusing to provide information to Mueller is a foreign-owned corporation, probably a Russian or Middle Eastern bank or sovereign wealth fund funneling money to Trump or Jared. The company appears to have asked for an en banc review today.

Mueller also asked for and got the House Intelligence Committee to release its transcript of Roger Stone’s testimony. The timing of this is the interesting thing: Mueller chose to do this when Republicans had to (and did) vote to expose Trump’s top political advisor to indictment. He could have waited, but didn’t. That suggests either he wanted Republican buy-in, or he needs the transcripts now, to finalize his case against Stone before Democrats take over in a few weeks.

The day after SSCI released materials on James Wolfe, he was indicted.

So things are moving to a head in the Mueller probe, and in a way that both Russia and Turkey may be implicated.

Matt Whitaker performs a headfake before taking the corrupt step he was hired to take

Then there was the news today on big dick toilet salesman Matt Whitaker. This morning, multiple outlets reported that DOJ had told Whitaker he didn’t have to recuse from the Mueller probe. After that became the headline, however, multiple outlets revealed that the truth was the opposite: an ethics advisor had told Whitaker he should recuse, and having heard that, Whitaker consulted a hand-picked committee that predictably told him not to.

Within days of the president’s announcement in early November that he had put Whitaker in the role on a temporary basis, Whitaker tapped a veteran U.S. attorney to become part of a four-person team of advisers on his new job, according to a senior Justice Department official. Their guidance included the question of whether Whitaker should recuse himself from Mueller’s investigation because of his past statements regarding that probe and because of his friendship with one of its witnesses, the official said.

Whitaker never asked Justice Department ethics officials for a formal recommendation, nor did he receive one, this official said.

However, after Whitaker met repeatedly with Justice Department ethics officials to discuss the facts and the issues under consideration, a senior ethics official told the group of advisers on Tuesday that it was a “close call” but that Whitaker should recuse himself to avoid the appearance of a conflict of interest, the official said. Whitaker was not present at that meeting, they said.

Those four advisers, however, disagreed with the ethics determination and recommended to Whitaker the next day not to recuse, saying there was no precedent for that, and doing so now could create a bad precedent for future attorneys general.

That big dick toilet salesman Whitaker did this is not surprising.

That he chose to roll out this admission today is worth noting. One outlet reported that, up until today, Whitaker had not been briefed on the Mueller probe. Apparently, in the wake of a judge raising treason concerns after having reviewed Mike Flynn’s behavior, Whitaker has made the move to become Trump’s mole on the Mueller probe.

Update: BuzzFeed got a hold of the DOJ letter here. It makes it very clear Whitaker ignored advice to recuse.

Update: Marty Lederman notes that this letter fails to conduct a key part of the recusal analysis: why he would make a more appropriate supervisor for Mueller than Rod Rosenstein.

Trump prepares to shut down government

All this is happening as Trump prepares to shut down the government because Fox News laughed at him for getting pantsed by Nancy Pelosi.

Fox & Friends co-host Steve Doocy said the Democrats had won the showdown, and Trump had lost.

He launched into a tirade saying the president “loses, and the Democrats will win everything” based on his apparent decision to compromise with House Speaker Nancy Pelosi and Sen. Chuck Schumer.

Doocy said Trump’s defeat would not only risk his campaign commitment to build the wall, but also bring into question his electoral promises to curb the rest of the government’s spending.

In response, over the course of today, Trump told Republicans he’d veto any continuing resolution that didn’t include $5 billion for his steel slat wall, making it much more likely we’ll have a shutdown as Trump skedaddles to Mar-a-Lago to take calls from his authoritarian buddies.

This may be entirely unrelated. After all, Fox and Friends is Trump’s bubble, that’s the only place where he considers losses to matter, and after the truth that Pelosi had bested him started to seep through, the narcissist-in-chief had no choice but to make a rash demand that Republican politicians sacrifice their careers in deference to his tantrum.

Which is to say that this behavior is precisely what we should expect when a narcissist’s mirror tells his he has been bested by someone he must demean.

Or maybe it is related?

Putin — or someone else — is calling in receipts

As I’m thinking about these things, I keep thinking back to an argument I made in August. I argued that Putin had compromised Trump not with a pee tape, but by ensuring his people kept receipts every time Trump got sucked deeper and deeper into a deal with Russia.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

It has since become clear that not just Russia, but at least also Turkey and whatever bank is fighting a demand from Mueller that it turn over evidence of Trump’s graft, also have receipts.

Nevertheless, at the moment where it has become increasingly clear that Mueller knows much of whatever blackmail these partners have over Trump, Trump has chosen, instead, to alienate the Senators who might keep him from being impeached by evacuating from Syria and, later reports make clear, Afghanistan.

Trump is, on a dime and without warning to our closest allies, rolling up the American Empire. And he’s doing it not because he’s a peacenik — as far too many self-described progressives are trying to claim — but because ruthless, committed authoritarians have convinced him he needs their continued approval more than he needs the approval of even the Republican hawks in the Senate.

Update: I forgot to mention that the stock market is crashing. It started in response to Trump’s trade wars and bullying of the Fed, but accelerated given his threats to shut down the government.

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Emmet Flood Steps in It Again: William Barr’s Memo Makes Compelling Case that Trump Must Be Impeached

December 20, 2018/53 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Back when Emmet Flood got Jeff Sessions replaced with big dick toilet salesman Matt Whitaker, I asked why the normally superb White House Counsel had done something that posed such a likelihood of causing chaos.

Maybe it’s just the Trump effect, in which normally competent people become bumblers in Trump’s aura, or maybe it’s just the unique difficulties of trying to defend the guy, but I think Flood has fucked up again. That’s because of the specific content of a William Barr memo sent to Rod Rosenstein, first reported by WSJ last night. While I’m certain Barr didn’t intend to do so, the memo makes a compelling case that Trump must be impeached.

The memo is long, lacks pagination, and presents an alarming view of unitary executive power. Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Yet even before Barr finishes the first page, he states something that poses serious problems for the White House.

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

Probably by the time Mueller’s office captured Peter Strzok’s testimony on July 19, 2017 — and almost certainly by the time they obtained Transition emails on August 23, 2017 (perhaps not coincidentally the day after Strzok’s 302 was formalized) showing Trump’s orchestration of Mike Flynn’s calls with Sergei Kislyak — Mueller has almost certainly had evidence that Trump suborned false statements from Mike Flynn. So even before he finishes the first page, Trump’s hand-picked guy to be Attorney General has made the argument that Trump broke the law and Mueller’s obstruction investigation is appropriate.

Even if Barr hadn’t indicted the President on page one of his memo, on page three he completely invalidates the rest of his argument when he argues he would be wrong if Trump actually had engaged in “illegal collusion.”

[E]ven if one were to indulge [what Barr invents as] Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt” unless the President and his campaign were actually guilty of illegal collusion.

Much later he says that obstruction becomes ripe after the underlying conspiracy (which he again calls collusion) has been established.

[T]he predicate for finding any corruption would be first finding that the President had engaged in the wrongdoing he was allegedly trying to cover up. Under the particular circumstances here, the issue of obstruction becomes ripe after the alleged collusion by the President or his campaign is established first.

By June 2018, by the time Barr wrote this, I’m fairly certain Mueller had the goods on an illegal conspiracy between Trump and the Russians, even if all the witnesses to it had not yet signed up as cooperating witnesses against the President. So again, because he writes about something he doesn’t understand, he has accidentally made the case that the President has broken the law and should be investigated for doing so.

And I’m not the only one who seems to think that. After giving the WSJ an anodyne quote on all this last night, Rod Rosenstein gave a far more interesting statement today, saying, “Our decisions are informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have.” The only way Mueller’s known obstruction inquiry could be consistent with Rosenstein’s comment is if my two observations are correct: that Mueller had reason to pursue Trump for obstruction, and that he has evidence that Trump’s campaign entered into an illegal conspiracy.

Which is a bummer for the President because, over and over, Barr points to the role of impeachment in a case where the President abuses his plenary prosecutorial powers like Trump has. Most notably, he tries to distinguish the Nixon and Clinton impeachments (the latter, bizarrely, given that it doesn’t remotely fit his standards for acceptable investigations of the President) from Trump’s behavior by arguing that, “the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such ‘bad acts’ involving the impairment of evidence.” While the evidence suggests Trump is also exposed in the conspiracy case, Barr argues here that just Trump’s acts of obstruction are sufficient to impeach him.

And here’s why I blame this all on Emmet Flood. As the updated WSJ story now makes clear, Barr sent a copy to Emmet Flood.

But people familiar with the matter said Mr. Barr did send a copy to Emmet Flood, the White House lawyer handling the Mueller probe.

If Flood read this memo (at a time, mind you, when Barr was under consideration to serve on Trump’s defense team), then it is malpractice to then appoint Barr, knowing the memo would come out.

Then there’s the fact that the memo got reported and released now. Apparently, while Trump has not yet officially appointed Barr (he may be trying to play games with Matt Whitaker’s status as Acting Attorney General), the White House has started to share background information, which may be how this memo got liberated. While White House Counsel Pat Cipollone presumably has resumed control over nominations process, but since Flood was involved in finding a new AG (and since so much of the AG hiring seems to be focused on getting Trump out of his legal problems with Mueller), Flood was likely in the loop on that decision.

Whatever the case, the fact that Barr wrote all this down and then it got liberated will make it a lot harder for Barr to invent some other reason to do what he helped Poppy Bush do, pardon his way out of a serious legal problem with Iran-Contra.

Indeed, the hullabaloo around this memo now — and Democrats’ opportunity to get Barr to confirm that if there is evidence that Trump told Flynn what lies to tell about the Russian sanctions conversation (more evidence is likely to be public by that point) — then an obstruction investigation would be valid and impeachment would be the logical recourse. That may make Barr problematic for Trump. If Dems on Senate Judiciary Committee are worth their salt (and several of them are more than up to this task), they will be able to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.

Trump might try to prevent that by failing to nominate Barr, but if he did, it’d make it more clear that his sole criterion for an Attorney General at this point is someone who’ll help him out of his legal woes.

That may be why Matt Whitaker has finally taken the Hail Mary step of — six weeks into his tenure as “Acting” Attorney General — decide to forgo the ethical review for recusal on the Mueller probe that DOJ’s ethical advisor told him would result in a recommendation that he recuse.

Update: This post has been updated to reflect WSJ’s clarification that Emmet Flood did receive the memo. Earlier, WSJ subsequently quietly added a sentence (which it has subsequently removed, though it a google search on the sentence still brings up the article) noting that Barr had shared his treatise with “the top lawyer representing the White House in the Mueller probe,” which in context would seem to mean Emmet Flood.

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

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Why It Mattered (and Still Matters) that Flynn Continued to Hide His True Relationship with Turkey

December 20, 2018/79 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

The guy who managed the first steps of the process that led to Trump announcing a withdrawal of troops from Syria yesterday was hiding secret ties to both Russia and Turkey when that process started. That’s one of the reasons why it matters that Mike Flynn lied about his relationship with Turkey for so long. It means that both Russia and Turkey have always known Flynn and Trump were vulnerable because they were hiding lies about their ties with those countries.

In this post, I noted that while the work Flynn did as an unregistered foreign agent for Turkey reportedly ended not long after election day (though WSJ reported that he and his spawn met with representatives of Turkey in mid-December to speak further about Fethullah Gulen), that relationship with Turkey would remain unregistered — that is, Flynn would continue to lie about the true nature of it — all the way through his guilty plea on December 1, 2017. For some reason, virtually everyone reporting on Flynn is getting this wrong, claiming that his March 7, 2017 registration — the one he has pled guilty to lying on — constitutes full disclosure about his ties to Turkey. It did not, because it hid that he was working, knowingly, for Turkey.

That’s important because, as I described in a post on what the redactions in the published version of the 302 (“302” is what the FBI calls their interview reports) memorializing Flynn’s January 24, 2017 interview with the FBI hide, he explained away the conversations by claiming that he and Sergei Kislyak discussed the Trump Administration’s plans on working with Russia and Turkey.

The redactions in Flynn’s 302 included two passages on Flynn’s December 29, 2016 phone calls with Ambassador Kislyak. In the first, Flynn offered up that he and Kislyak had discussed two things: a phone call with Vladimir Putin that would take place on January 28, and whether the US would send an observer to Syrian peace talks Turkey and Russia were holding in Kazakhstan the next month.

Later in Flynn’s FBI interview, as Agents were quoting bits of the transcript back to Flynn, he again denied he and Kislyak had discussed expulsions of Russia’s diplomats. He appears to have, again, claimed they talked about sending representatives to Astana.

For some reason, the government considers the specific description Flynn used with the FBI to remain too sensitive to publicly release, either because they don’t want co-conspirators to know precisely what Flynn said, and/or they don’t want the Russians and Turks to know.

The claim that those Kislyak phone calls discussed a later call with Putin and the Astana conference is the same one the Transition would offer to the WaPo the day after David Ignatius made clear that the FBI had recordings of the call. Mueller’s reply to Flynn’s sentencing memo describes that Flynn asked a subordinate to feed this information to the WaPo.

The defendant asked a subordinate member of the Presidential Transition Team to contact the Post on the morning of January 13 and convey false information about the defendant’s communications with the Russian ambassador. The “UPDATE” included at the end of the Post story later reported that two members of the Presidential Transition Team stated that the defendant “didn’t cover” sanctions in his conversation with the Russian ambassador.

As Mueller laid out, after Flynn told this cover story about his calls publicly, he continued to double down on it, such that by the time the FBI came to his office on January 24, he had to stick to that story.

Over the next two weeks, the defendant repeated the same false statements to multiple members of the Presidential Transition Team, including Vice President-Elect Michael Pence, incoming White House Chief of Staff Reince Priebus, and incoming White House Press Secretary Sean Spicer. Those officials then repeated the defendant’s false statements on national television. See, e.g., Face the Nation transcript January 15, 2017: Pence, Manchin, Gingrich, CBS NEWS (Jan. 15, 2017) (Vice President Pence recounting that defendant told him he did not discuss sanctions with the Russian ambassador); Meet The Press 01/15/17, NBC NEWS (Jan. 15, 2017) (Priebus recounting that he had talked to the defendant and “[t]he subject matter of Case 1:17-cr-00232-EGS Document 56 Filed 12/14/18 Page 2 of 7 -3- sanctions or the actions taken by the Obama [sic] did not come up in the conversation [with the Russian ambassador.]”); White House Briefing by Sean Spicer – Full Transcript, Jan. 23, 2017, CBS NEWS (Jan. 24, 2017) (Spicer recounting that he had spoken with the defendant the day before, who again stated that he (the defendant) had not spoken to the Russian ambassador about the sanctions). Thus, by the time of the FBI interview, the defendant was committed to his false story.

Flynn’s lies to cover the discussion about sanctions and expulsions were not entirely invented; he’s a better liar than that. The Transition really was struggling over its decision of whether to join in a Syrian peace plan that would follow Russia (and Turkey’s lead) rather than the path the Obama Administration had pursued in the previous year. As he noted to the FBI, the Trump Administration had only decided not to send a senior delegation to Astana earlier that week. It was announced on January 21.

These lies compromised Flynn in two ways. As Sally Yates noted when she described the problem with Flynn’s lies to Don McGahn two days after his interview, because Flynn was saying something publicly that Russia knew to be false, Russia could hold that over him (and the Administration).

But by staking his lies on the Astana conference — and the Trump Administration’s willingness to join a Syrian effort that deviated from existing US policy — Flynn also raised the stakes of his past paid relationship with Turkey. It became far more damaging that Flynn had still been on the Turkish government payroll through the early transition, when Trump directed him to conduct early outreach on Syria. So even while DOJ was repeatedly telling Flynn he had to come clean on his Turkish lobbying ties, he lied about that, thereby hiding that the early days of Trump Administration outreach had been conducted by a guy still working for Turkey.

Since that time, both Flynn and Trump were stuck, because they had told lies to the US government that Russia and Turkey knew were lies.

Indeed, Trump may have started telling his own lies right away. Three days after Flynn’s FBI interview, in a conversation with Jim Comey after he had already learned of Sally Yates’ conversation with Don McGahn telling him of DOJ’s concerns about the FBI interview, Trump offered what was probably a bullshit cover story about Flynn’s communications with Russia, possibly bullshit invented to hide what Trump knew about ongoing discussions with Russia. [Here’s version of this story fed to the NYT.]

He then want on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she ad been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment of after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [president] of a country like [Russia].

Since his first days as President, Trump (and Mike Flynn, until he pled guilty) has been trying to hide the true substance of the relationship he had with both Russia and Turkey.

As it happens, it appears that Turkey was the country that ultimately exploited that leverage. While Trump did little more than greet Putin at the G20 in Argentina as more details of his negotiations with Russia over a Trump Tower have become clear, he did meet with Recep Tayyip Erdogan. And he spoke with Erdogan by phone ~~yesterday~~ last Friday before he unexpectedly announced that American troops were withdrawing from Syria.

In the wake of yesterday’s decision, Nancy Pelosi (who as a Gang of Eight member, may know non-public information about all this) tied Trump’s announcement to the Flynn sentencing hearing and his work for Turkey; she suggested Trump had made the decision to serve his own personal or political objectives.

It is premature for the President to declare a sweeping victory against ISIS when, just a few weeks ago, our military led more than 250 coalition-conducted airstrikes against targets in Iraq and Syria. All Americans should be concerned that this hasty announcement was made on the day after sentencing in criminal proceedings began against the President’s former National Security Advisor Michael Flynn, who admitted that he was a registered foreign agent for a country with clear interests in the Syrian conflict.

[snip]

“When we take the gavel, our Democratic Majority will uphold the Congress’ constitutional oversight responsibilities to ensure that the President’s decisions advance our national security interests, not his personal or political objectives.

I don’t know whether Pelosi is correct (and I actually hope that we do get out of Syria, though perhaps congressional oversight can force Trump to do this in a way that doesn’t result in genocide for our longtime Kurdish allies).

But I know that when Trump ordered a guy who was still on Turkey’s payroll to initiate the negotiations that resulted in yesterday’s announcement, then tried to sustain lies those negotiations, he effectively ceded a lot of control over how negotiations would proceed to the countries that shared his and Flynn’s secrets.

And, of course, Trump’s Treasury Department also announced yesterday that it was reversing sanctions on Oleg Deripaska’s company (though not Deripaska himself, and restrictions on his ownership are quite significant).

Update: Corrected date of call with Erdogan. See this story for significance of that call.

Timeline

November 8, 2016: “Flynn’s” Fethullah Gulen op-ed

November 18: Elijah Cummings writes Mike Pence with concerns about conflicts in Flynn’s lobbying business

November 30: NSD contacts Flynn about registering under FARA

December 1: Flynn ends contract with Inovo

Mid-December: Reported meeting at 21 Club in NYC to discuss rendering Fethullah Gulen

December 29: Flynn discusses attending Syrian peace talks hosted by Turkey and Russia with Sergei Kislyak

January 10: Flynn asks Susan Rice to hold off on assault on Raqqa

January 11, 2017: Flynn tells DOJ he’ll “probably” be registering under FARA

January 12: David Ignatius column makes it clear FBI had intercepted Sergei Kislyak conversation discussing peace process

January 13: Based in part on White House cover story for Flynn-Kislyak call, WaPo reports discussions about participation in Astana conference

After inauguration: Flynn tells Trump Administration he will definitely register

January 21: State Department announces US Ambassador to Kazakhstan, not Flynn, will attend Russian-Turkish peace talks

January 23: Astana conference starts

January 24: Flynn interviews with FBI, and explains away the December 29 call, in part, by saying they discussed an observer to Astana

January 27: Trump tells Comey he questions Flynn’s judgment because he took six days to return a call to Vladimir Putin (he references a Putin call, the first call of congratulations from a foreign leader, but it’s not clear whether it came on January 22, 23, or 24)

January 28: Conference call with Vladimir Putin allegedly discussed on December 29

March 7: Flynn submits FARA filing that still hides true relationship with government of Turkey

December 1: Flynn pleads guilty, in part, to lying in that FARA filing

December 18, 2018: Flynn sentencing hearing

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

December 19, 2018/66 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

THE COURT: Sure.

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

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

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

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

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

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

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

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

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

That seems like a pretty major aggravating factor.

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

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

THE COURT: Sure.

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

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

MR. KELNER: I do.

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

[snip]

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

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

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

THE COURT: Absolutely.

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

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

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

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

MR. KELNER: Thank you, Your Honor.

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

MR. KELNER: I’m leading up to that.

THE COURT: No, that’s fine.

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

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

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

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

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

THE COURT: All right.

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

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

MR. KELNER: It’s a classic —

THE COURT: He pled to a misdemeanor?

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

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

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

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

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

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

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

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

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

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In Defense of Emmet Sullivan: Van Grack Suggested Mueller Did Review Whether Flynn’s Behavior Amounted to Treason

December 19, 2018/130 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

I’d like to defend Judge Emmet Sullivan’s intemperate mentions of unregistered foreign agents and treason in the Mike Flynn sentencing hearing yesterday. Not only has the discussion about his comments gotten the precise language used wrong, but it fails to understand the import of Mike Flynn’s lies about being an agent of the Turkish government.

There are two comments in question. First, in part of a speech about how he would weigh the mitigating and aggravating factors in Flynn’s sentencing, Sullivan said that Flynn was “an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.”

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

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States. [my emphasis]

Then, after having gotten Flynn to finally take him up on consulting with his attorneys, but before they recessed, Sullivan sat Flynn down and asked prosecutor Brandon Van Grack if prosecutors had evaluated Flynn’s activities to see if his behavior rose to the level of “treasonous activity.” Van Grack responded by answering about the crime of treason.

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

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

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

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

THE COURT: Sure.

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

Flynn went off, consulted with his lawyers, and wisely decided the last thing he should do is let Sullivan sentence him while he was thinking of treason. When he came back, the first thing Sullivan did was correct that Flynn was not acting as a foreign agent while serving as National Security Advisor and explain that he did not think Flynn had committed treason, but wanted to know what Mueller’s thinking on uncharged crimes was.

THE COURT: All right. I just want to ask a couple of questions. This is directed to either government counsel or defense counsel. I made a statement about Mr. Flynn acting as a foreign agent while serving in the White House. I may have misspoken. Does that need to be corrected?

MR. VAN GRACK: Yes, Your Honor, that would be correct, which is that the conduct ended, I believe, in mid-November 2016.

THE COURT: All right. That’s what I thought, and I felt terrible about that. I just want the record clear on that. You agree with that, Counsel?

MR. KELNER: Yes, Your Honor.

THE COURT: All right. I also asked about — and this is very important — I also asked about the Special Counsel’s Office. I also asked questions about the Special Counsel and the — and other potential offenses for the purpose of understanding the benefit, if any, that Mr. Flynn has received in the plea deal. I wasn’t suggesting he’s committed treason. I wasn’t suggesting he committed violations. I was just curious as to whether or not he could have been charged, and I gave a few examples.

[snip]

THE COURT: And I said early on, Don’t read too much into the questions I ask. But I’m not suggesting he committed treason. I just asked a legitimate question.

MR. VAN GRACK: Yes, Your Honor. And that affords us an opportunity to clarify something on our end which is, with respect to treason, I said I wanted to make sure I had the statute in front of me. The government has no reason to believe that the defendant committed treason; not just at the time, but having proffered with the defendant and spoken with him through 19 interviews, no concerns with respect to the issue of treason. [my emphasis]

Now, I will be honest with you: I was screaming at Sullivan when I read this being tweeted out in real time, in part because I spend so much time arguing that Trump and his flunkies won’t be charged with treason because we’re not at war. I do think, in an effort to convey to Flynn just how reprehensible he believes his actions were, Sullivan got out over his skis. But I think his comments are far more defensible — and telling — than much of the commentary appreciates.

Here’s why.

First, even the docket makes it clear that there are a bunch of sealed documents that Sullivan has gotten, including an ex parte version of the government’s addendum describing Flynn’s cooperation. Sullivan started the hearing yesterday emphasizing that point, then returned to it after he had gotten Flynn to plead guilty again under oath.

There’s a great deal of nonpublic information in this case, and I’ll just leave it at that.

If any of my questions require a party to disclose nonpublic information, or if I begin to discuss something nonpublic, don’t be shy in telling me. My clerks over the years have learned to do this (indicating) if I get off of script or if I get into areas where — I won’t get offended if you do it. I may not see you, so stand up and raise your hands or say something, please. I don’t want to unintentionally say something that should not be revealed on the public docket.

There’s a new document that was filed at 10:19 this morning. The government filed a sealed motion alerting the Court that it inadvertently omitted one document from the government’s in-camera production.

[snip]

Having carefully read all the materials provided to the Court in this case, including those materials reviewed under seal and in-camera, I conclude that there was and remains to be a factual basis for Mr. Flynn’s plea of guilty. [my emphasis]

By yesterday morning, Emmet Sullivan probably became one of the few people outside Mueller’s team and his DOJ supervisors that understands the activities that Trump and his associates, including Flynn, engaged in from 2015 to 2017. He understands not just the significance of Flynn’s lies, but also how those lies tied to graft and conspiracy with foreign countries — countries including, but not limited to, Russia.

It should gravely worry the Trump people that Sullivan’s comments about whether Flynn’s behavior was treasonous came from someone who just read about what the Mueller investigation has discovered.

Now consider that, as part of his effort to understand how much benefit Flynn got from pleading guilty to one charge of false statements for his multiple lies, Sullivan and Van Grack had this exchange.

MR. VAN GRACK: [W]e’d like to bring to the Court’s attention that we just had an indictment unsealed in the Eastern District of Virginia charging Bijan Rafiekian and Ekim Alptekin with various violations, and the defendant provided substantial assistance to the attorneys in the Eastern District of Virginia in obtaining that charging document.

THE COURT: All right. Could the defendant have been indicted in that indictment? Could he have been charged in that indictment?

MR. VAN GRACK: And, Your Honor, the answer is yes, and the reason for that is that in the Statement of Offense in this case, the defendant refers to false statements in that FARA filing that are part of the indictment filed in the Eastern District of Virginia.

[snip]

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

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

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

MR. VAN GRACK: I believe so.

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

Van Grack not only says that Flynn could have been charged in that conspiracy to act as an unregistered foreign agent indictment, but that the lies he told were part of the indictment.

And in fact, this language in Flynn’s statement of the offense (which Sullivan read yesterday in court):

On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.

Became this language in the Bijan Kian and Ekim Alptekin indictment:

From approximately January 2017 through approximately March 2017, outside attorneys for Company A gathered information to determine whether Company A or any of its employees had an obligation to register under FARA based upon Company A’s work on “Operation Confidence.” During this process, RAFIEK.IAN and ALPTEKIN knowingly provided false information to Company A’s attorneys in an effort to hide from the attorneys – and ultimately from the FARA Unit – the involvement of Turkish government officials in the project.

Among other things, RAFIEKIAN falsely told Company A’s attorneys that:

a. The meeting on or about September 19, 2016 in New York City had nothing to do with Project Confidence, and instead was in furtherance of an abandoned “Project Truth” that was distinct from Project Confidence;

b. There were no other contacts with Turkish government officials regarding the project;

c. The op-ed was Person A’s own idea, and he wrote it on his own behalf, and unrelated to the project;

[snip]

Attorneys for Company A also solicited information from ALPTEKIN for use in the FARA filings. Through his own attorneys, ALPTEKIN falsely told Company A’s attorneys that:

a. ALPTEKIN had not been consulted on the op-ed, and that he would have opposed it if he had been consulted;

[snip]

On or about March 7, 2017, RAFIEKIAN and ALPTEKIN caused to be made the following false statements of material fact in documents filed with and furnished to the Attorney General under the provisions of FARA, and omitted the following material facts necessary to make the statements therein not misleading. RAFIEKIAN reviewed the filings and provided comments to Company A’s attorneys before the filings were submitted, but did not request that any of these false statements be changed.

[snip]

Exhibit A to Company A’s FARA Registration Statement falsely stated that “[Company A] does not know whether or the extent to which the Republic of Turkey was involved with its retention by [Company B] for the three-month project.”

[snip]

Paragraph 13: “In addition to the above described activities, if any, have you engaged in activity on your own behalf which b~nefits your foreign principal?”

Response: “Because of its expertise, [Company A J -officials write, speak, and give interviews relating to national security. Although not undertaken at the direction or control of a foreign principal, it is possible that such activities may have an indirect benefit to a principal. On his own initiative, [Person A J published an op-ed in The Hill on November 8, 2016, that related to the same subject matters as [Company A] work for [Company BJ. Neither [Company BJ, nor any other person requested or directed publication of the op-ed.”

The Attachment to Company A’s FARA Supplemental Statement falsely stated that “[Company A] understood the engagement to be focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, particularly with respect to the stability of Turkey and its suitability as a venue for investment and commercial activity.”

While there are other false statements alleged (presumably the ones Van Grack said Flynn was not implicated in), the EDVA indictment actually charges four counts of false statements, and one of those directly maps to the lie Flynn himself pled guilty to.

Side note: it’s worth mentioning that Rob Kelner — who is still Flynn’s lawyer — is the guy who submitted those false FARA statements, which means he may be the lawyer that will take the stand in the EDVA trial to attest to the lies on those forms. It’s Kelner who still has some cooperation with prosecutors to do, at least as much as Flynn.

Significantly, as I noted the other day, both the conspiracy and the foreign agents charges in the EDVA indictment say the conduct continued through March 2017, the date Flynn Intelligence Group filed false FARA filings, hiding the fact that they knew Turkey was behind the Fethullah Gulen project.

COUNT ONE Conspiracy – 18 U.S. C. § 3 71 THE GRAND JURY FURTHER CHARGES THAT: 1. The allegations contained in the General Allegations of this Indictment are incorporated here by reference. 2. From at least July 2016, through at least March 2017, in the Eastern District of Virginia and elsewhere, the defendants,

[snip]

COUNT TWO Acting as an Unregistered Agent of a Foreign Government – 18 U.S. C. § 9 51 THE GRAND JURY FURTHER CHARGES THAT: 1. The allegations contained in the General Allegations of this Indictment are incorporated here by reference. 2. From approximately July 2016 through approximately March 2017, in the Eastern District of Virginia and elsewhere, the defendants, [my emphasis]

There’s a reason it gets charged that way, which is even more important for Flynn than for his co-conspirators (a reason that also played out in Paul Manafort’s case, in which he was charged for hiding his ties to Ukraine at a time when they would have impacted the Trump campaign).

The point of these registration crimes is that so long as you withhold full disclosure about your actions, you continue to lie to the federal government and the public about the significance of your actions. By filing a registration in March 2017 specifically denying what all the co-conspirators knew — that Flynn Intelligence Group was actually working for Turkey, not Ekim Alptekin’s cut-out Inovo — it prevented the public and the government from assessing the import of Flynn’s actions in trying to force DOJ to deem Gulen a terrorist who could be extradited to Turkey. And frankly, so long as Flynn continued to hide that detail, it made him susceptible to pressure if not blackmail from Turkey.

There’s a grammatical difference between Sullivan’s two comments. He first said that Flynn was “an unregistered agent of a foreign country, while serving as the National Security Advisor.” That was, technically, true. For the entirety of the time Flynn served as National Security Advisor, FIG had not admitted that it had actually been working directly for Turkey. Indeed, FIG continued to lie (and so remained unregistered) about that fact until December 1, 2017, when Flynn pled guilty.

As I’ll show in a follow-up post, it is critically important that Flynn continued to lie about whether he had been working directly for Turkey when he met with the FBI on January 24, 2017.

Sullivan’s follow-up used different grammar. Then, he said “Flynn [was not] acting as a foreign agent while serving in the White House.” That is also true. He was no longer secretly being paid by the government of Turkey to do things like slap his name on op-eds written by other people.

Still, even though he was no longer being paid to take specific actions requested by the government of Turkey, for the entire time he worked at the White House (and for more than eight months afterwards), his past work as an agent of a foreign government — as opposed to a foreign company cut-out — remained unregistered, undisclosed to the public.

With that in mind, I want to return to the specific exchange that Sullivan had. In response to his question about whether Flynn’s behavior amounted not to treason, but to treasonous activity, Van Grack at first says they did not consider treason, but then corrected himself.

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

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

All of this seems to be consistent with Mueller reviewing Flynn’s actions, reviewing statute, finding that Flynn’s behavior did rise to the standards described in 18 USC 951 (with which Van Grack said he could have been charged), but did not rise to treason (as it clearly did not). Van Grack explained that “in terms of other offenses, they were not sort of in consideration in our interfacing with the defendant,” which seems to admit that Flynn could have been charged with other crimes, but was not, because he cooperated.

This walkback, I’m convinced, is as much for the benefit of the prosecutors, who gave Flynn an unbelievable sweetheart deal, as it was for the sake of judicial restraint. Mueller is forgiving Flynn working in the White House while continuing to hide that he had, during the campaign, secretly and knowingly worked for a foreign government, in consideration of his cooperation unveiling other activities.

But legal standards aside, Sullivan — one of the only people who has read a summary of what Flynn provided in his cooperation — still could not hide his disgust about the conduct he knows far more about than we do.

This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises of the White House, in the White House in the West Wing by a high ranking security officer with, up to that point, had an unblemished career of service to his country. That’s a very serious offense.

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

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that. I cannot assure you that if you proceed today you will not receive a sentence of incarceration. But I have to also tell you that at some point, if and when the government says you’ve concluded with your cooperation, you could be incarcerated.

It could be that any sentence of incarceration imposed after your further cooperation is completed would be for less time than a sentence may be today. I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense. [my emphasis]

I remain frustrated that Sullivan raised treason at all yesterday, as I spend a great deal of time tamping down discussion of treason; none of the Trump flunkies’ actions that have been thus far revealed reach treason.

But I think I’m beginning to understand what a big deal it was for Flynn to continue to lie about his service for Turkey, even aside from the disgust I share with Sullivan that anyone would engage in such sleazy influence peddling while serving as a key foreign policy advisor for a guy running for President.

Flynn did a lot of really sleazy things. There was no discussion yesterday, for example, about how he gleefully worked on cashing in with nuclear deals even while Trump was being inaugurated. The public lacks both a full accounting of his sleazy actions and full understanding of their import for national security.

Mueller’s team thinks Flynn’s cooperation has been so valuable that it should wipe away most punishment for those sleazy actions. Emmet Sullivan, having read a great deal of secret information, is not so sure.

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The Flynn Sentencing: What Comes Next?

December 18, 2018/129 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

As Zoe Tillman describes, the Mike Flynn sentencing hearing today was even more unpredictable than I imagined (and I anticipated it would bring some surprises). Judge Emmet Sullivan (after apparently putting Flynn under oath so these questions, too, could be charged for perjury) asked him several times whether — given the sentencing memorandum he submitted suggesting extenuating circumstances for his lies to the FBI (but not to DOJ’s FARA team) — he believed he had lied, whether he knew that was a crime, whether he wanted to plead guilty.

Throughout the proceedings, US District Judge Emmet Sullivan repeatedly asked Flynn if he wanted to go ahead with sentencing, given his lawyers’ comments questioning the conduct of the FBI officials and agents who handled his questioning in January 2017, and the fact that Flynn might not be finished cooperating.

Having established that — and offered Flynn several opportunities to delay sentencing, he laid into him, even going so far as to ask prosecutor Brandon Van Grack if Mueller had considered charing Flynn with treason.

“Arguably, that undermines everything this flag over here stands for,” Sullivan said, gesturing to an American flag displayed behind his chair. “Arguably you sold your country out.”

Sullivan continued: “I’m not hiding my disgust, my disdain for this criminal offense.”

Flynn at that point took up the judge’s offer of additional time to consult with his lawyers. Before the judge took a break, however, he asked special counsel prosecutor Brandon Van Grack if Flynn could have been charged with treason for his conversations with now-former Russian ambassador Sergey Kislyak in December 2016, after then-president Barack Obama had entered sanctions against Russia for interfering in the election.

That’s when Flynn asked Sullivan for a break. When he and his lawyers returned, they took Sullivan up on his offer for a delay, and suggested a status hearing in March.

But it’s not entirely clear how that will help — aside from giving Sullivan time to set aside the visceral disgust he showed for Flynn today.

Here’s are some possible scenarios:

Flynn Finds Something Else to Cooperate On

This is the ostensible reason to delay the sentencing, so that Flynn can cooperate some more, in an attempt to convince Sullivan he should avoid prison time.

When Sullivan asked Van Grack whether Flynn was done cooperating, and the prosecutor replied that it remained a possibility. That stops short of even promising that Flynn will be called to testify in the trial against his former partner, Bijan Kian. As I noted yesterday, the indictment seemed to be built to avoid that, and as an unindicted co-conspirator there may be problems if Flynn does testify, to say nothing of his limited credibility as a sworn liar. Moreover, Flynn’s substantial cooperation in getting prosecutors to this point was already baked into today’s sentencing. It’s hard to imagine what Flynn could do to improve on that.

Which leaves the possibility that Flynn knows of something — some other crime, whether by Trump and his circle, or some of his other pals — that he can offer to federal prosecutors. It is possible that, seeing an angry judge talking about treason and imagining prison, Flynn unforgot somethings he knows, so took his lawyer aside and said there was another area he might be willing to share with prosecutors.

Trump Risks Clemency

A more likely motivation, for Flynn, is the hope that Trump will decide to give Flynn the pardon he floated over a year ago. If Flynn delays long enough, Trump might get into a place where it’ll be politically feasible for him to commute any sentence Flynn makes.

Maybe he, like the nutters who occupy the same bubble he does, that after a series of false hoaxes over the last year, someone will finally discover something that will provide the excuse Trump needs.

Or maybe he’s just delaying in hopes that one of the long shot challenges to Mueller’s authority — or perhaps his firing — will get him off his charges.

All of these, of course, would amount to a play for time, in the hopes that his fortune will improve.

Kelner Falls on His Sword

After they came back from the break, Robert Kelner said something suggesting that Sullivan shouldn’t penalize Flynn in his sentencing for something his attorney (that is, he, Kelner) had written in a sentencing memo.

It’s unclear to me whether Kelner was referencing the stunt suggesting there were extenuating circumstances explaining why Flynn lied or a reference he made to David Petraeus (Sullivan explicitly suggested he thought Petraeus got an easy deal). It’s equally unclear to me how much of Sullivan’s tirade today stemmed from Flynn’s actual conduct (and the sweet deal he himself got) or the stunt.

Particularly if it’s the former, then it’s possible to win some favor from Sullivan by having Kelner even more publicly fall on his sword, claiming (the claim would almost certainly be utter bullshit) that it was his idea to try that stunt. That might provide Flynn an opportunity to present a new, chastened sentencing memo in March, such that Sullivan would be more amicable to giving him probation.

There’s a tension underlying this: One reason Flynn wanted to get sentenced early was so he could return to sleazy influence peddling so he could pay his legal bills. Now he’s looking at still more legal bills for a stunt that he probably demanded.

The Unfolding Turkish and Russian Stories Change the Context

Judge Sullivan (or his clerks) have read, at a minimum, the following:

An unredacted copy of Flynn’s 302
An unredacted copy of the McCabe memo
A partly unredacted copy of the Strzok 302 (some parts of it are not relevant to this case, so may not have been shared)
An unredacted copy of Flynn’s cooperation addendum
An ex parte version of the Flynn cooperation addendum including details Flynn doesn’t know
Information, in some form, on the Kian indictment

And there are still some sealed items in Flynn’s docket.

So Sullivan should have a pretty complete idea of what cooperation Flynn has given.

That said, it’s not impossible that as both the Kian prosecution (I suspect he’ll plead) and the Russian investigation proceeds, additional information will become known — or at least public — to change the context of Flynn’s actions. Maybe, if the crimes of his business partner end up far worse than we know, Flynn’s treatment for the foreign agent charge won’t appear as easy. Maybe, if people next to Trump get charged with serious crimes, the value of Flynn’s cooperation will make him look less like a sell-out.

But the opposite could happen, as well. As his co-conspirators attempt to save themselves, they may be able to present credible evidence about stuff Flynn has thus far suppressed (if not from Mueller, from the public).

And what if Trump ultimately quits in disgrace? Sure, he could pardon his co-conspirators on the way out (though I doubt he’d do that if there weren’t a benefit to him). But if Trump leaves in disgrace, Flynn’s continued good relations with Trump may only make him look like more of a sell-out.

The point is, short of finding other criminals to flip on or finding a way to remove Mueller’s authority, it’s not clear how Flynn’s fortune can improve over the next three months, and there are definitely ways his fortune could go south.

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Judge Sullivan Was Prepared For Potential Flynn Perjury and Fraud On The Court

December 18, 2018/56 Comments/in 2016 Presidential Election, Department of Justice, Law, Trump Administration /by bmaz

Okay, that was quite a morning at the E. Barrett Prettyman Courthouse in DC in regard to the Flynn plea and sentencing. In the windup this morning, well before the proceeding began, I cautioned that Flynn and his attorney Rob Kelner would have to back off the right wing Fox News Trumpian nonsense they stupidly included in their sentencing memo. See this report from Marcy on the sentencing memo, and this one as to how the FBI 302’s the Flynn team stupidly demanded be made public ate them alive. And, they really did.

There is already simply a ton of discussion on the Flynn proceeding today, I will leave that to others. But there was one little nugget I say from, I think, Glenn Kirshner, as almost a throwaway comment, on MSNBC that Judge Sullivan insisted Mike Flynn be sworn in before proceeding today. I was not really ready to write about this until confirming it from others in the courtroom this morning. I have now received that corroboration from multiple sources. In fact, Judge Sullivan directly said he was doing so because “he was doing basically an extension of the plea colloquy”. Wow!!

This is fairly notable. Defendants can get sworn in for their plea allocution, but not their sentencing. Judge Emmet Sullivan was laying in the weeds for Flynn from moment one. To be specific, here is what I said in a tweet well before the sentencing began regarding Flynn and Kelner having included the right wing nonsense about Flynn being innocent and tricked by the FBI in their sentencing memo:

“Keep in mind that this argument, if pursued to success, then makes his plea allocution effectively a fraud on the court.”

Well, apparently Judge Sullivan was on to the problem that such a direct repudiation by Flynn of his underlying guilt, and the previously sworn voluntariness of his plea, would pose if he was stupid enough to continue down that path. Sullivan was ready, because continuing down that path would have directly undermined everything Flynn swore to in his plea allocution on December 1, 2017.

What Judge Sullivan effectively did was set the first real “perjury trap” to date in the greater Mueller investigation (despite the idiocy purveyed relentlessly on Fox News and by Rudy Giuliani). And it was a federal court and judge that did it, not Mueller or his deputies. Emmet Sullivan was loaded for bear today on multiple fronts, but this is one the media does not seem to have caught on to yet.

Flynn and his attorneys were ready for it after the searing followup sentencing memo filed by the government, but clearly were not ready for just how seething Judge Sullivan really was. Frankly, I think the canard, as suggested by Sullivan himself, that “further cooperation” by Flynn really will change the dynamics for sentencing at this point is absurd. That said, assuming they can keep their client from doing further stupid things in the interim, giving Emmet Sullivan 90 days to calm down is not a bad idea for the defense I guess. What a mess. I remain convinced, however, that Flynn could have walked out of court sentenced to probation today if he had not included that right wing Fox News nonsense in his sentencing memo. Oh well!

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The Black Holes in the Mike Flynn 302: The Back Channel Discussion May Be Most Sensitive Investigative Detail

December 18, 2018/48 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

In this post, I talked about what we can deduce from the unredacted parts of the Mike Flynn 302 released last night. It shows that Flynn’s lies served to hide that he consulted very closely with Mar-a-Lago — almost certainly with Trump — and even denied parts of the transcript that showed him quoting directly from KT McFarland’s related instructions.

While we’re waiting on Flynn’s sentence, I’d like to look at the substantive redactions, as a way of assessing what Mueller thinks must remain secret. I’ll just be looking at the actual report, not the bureaucratic redactions (which hide things like the case number and classification levels for the individual paragraphs).

The first redaction comes in a paragraph recording what Flynn claimed were his past communications with Sergei Kislyak, in which he explains that he called Kislyak in the wake of the death of GRU head Igor Sergun in January 2016.

It’s possible the redaction includes an admission that he and Kislyak discussed policy — ascribing a a policy call to a condolence one is precisely what he did with the December 29 calls to Kislyak, after all. Note, too, the way Flynn distanced that conversation from Trump (he probably figured out that that call, like his much later one, would have been picked up). It’d be especially interesting if the redaction pertained to Flynn’s claim that Sergun died in Lebanon; Russia’s military issued a panicked denial today that Sergun died there (they say he died of heart problems in Russia).

The second redaction hides Flynn’s discussion of his trip to Russia in 2015, on a trip ultimately paid by RT, where he sat at a table with Vladimir Putin and Jill Stein.

This actually might be hidden for counterintelligence reasons — to hide the circumstances of how Russians tried to sidle up to Flynn by flying him in for the gala. That said, the details are likely part of Mueller’s understanding of how Russia cultivated Trump and those close to him.

The next redaction hides Flynn’s description of the outreach to the Russians he was making.

I suspect this provides more detail about the outreach Flynn made on Syria. He portrays it as pertaining to terrorism, not paying back Russia. The hidden passage may also address timing which we now know actually started during the election (which would mean this redacted passage could hide yet another Flynn lie).

Note, it’s actually fairly interesting that Flynn worked exclusively via Kislyak, but none of that is likely to be redacted.

The first paragraph about the December 29 conversation hides two details: what appears to be a request that Flynn set up the conference call that ultimately took place on January 28, and an inquiry on whether the US would send observers to … something.

This redaction is one I expect we’ll get follow-up reporting on, as Kislyak was making significant asks at that time.

Update: ~~TC suggests the reference to monitors might pertain to evacuation of Aleppo. It’s definitely a possibility.~~ Update: The observer comment pertained to Syria peace talks. h/t JM

The longest redaction in the 302 may be the one that hides Flynn’s description of the December 1 meeting with himself and Jared Kushner (Don Jr came in at some point — the meeting was conducted in his office) where Jared asked for a back channel of communications.

I find the extent of this redaction … to be bad news for Jared Kushner (and Don Jr if he attended more of the meeting than he claims). This is another meeting that FBI had details about (or later would discover them), from when Kislyak called home and reported on the back channel request. A significant purpose for this redaction must be to hide what Flynn said from the other co-conspirators.

Also note: if this meeting is the only other communication with Kislyak that Flynn admitted to, he may have also hid communications he had during the election (in which case those communications would have also been considered sensitive).

These two words are the only ones redacted in the entire three-paragraph passage describing Flynn’s lies about the vote on Israeli settlements.

The redactions here — at least the second one — are for diplomatic reasons.

I believe the second one hides the word “Egyptians;” I’m not sure if the first is long enough to be “Israel.” It may be “Trump,” in which case it’d be another point where Flynn hid how much he coordinated with Trump on all this.

In any case, the fact that Mueller redacted so little of this discussion suggests that the effort to help Israel is not a core part of his investigation (or if it is, Jared, who ordered Flynn to try to delay the vote on Israel, has already locked in his testimony on it).

It’s unclear what this redaction, in the first paragraph as the FBI Agents circled back to Flynn’s lies about the sanctions call, hides. It may be another reference to the discussion about sending observers somewhere.

That’s the final redaction, though. The rest — which details how the Agents quoted directly from the transcript (including the bit that was itself a quote of KT McFarland) is all unsealed, so presumably no longer sensitive from an investigative standpoint.

All of which is to say that the most sensitive investigative detail in Flynn’s 302 — the thing the government cared most about hiding — is what Flynn said about that December 1 meeting where Jared asked to set up a back channel of communication with Russia.

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The Dossier Is Not the Measure of the Trump-Russia Conspiracy

December 18, 2018/62 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

It seems like the whole world has decided to measure Trump’s conspiracy with Russia not from the available evidence, but based on whether the Steele dossier correctly predicted all the incriminating evidence we now have before us.

The trend started with NPR. According to them (or, at least, NPR’s Phillip Ewing doing a summary without first getting command of the facts), if Michael Cohen didn’t coordinate a Tower-for-sanctions-relief deal from Prague, then such a deal didn’t happen. That’s the logic of a column dismissing the implications of the recent Cohen allocution showing that when Don Jr took a meeting offering dirt on Hillary as “part of Russia and its government’s support for Mr. Trump,” he knew his family stood to make hundreds of millions if they stayed on Vladimir Putin’s good side.

Item: Cohen ostensibly played a key role in the version of events told by the infamous, partly unverified Russia dossier. He denied that strongly to Congress. He also has admitted lying to Congress and submitted an important new version of other events.

But that new story didn’t include a trip to Prague, as described in the dossier. Nor did Cohen discuss that in his interview on Friday on ABC News. Could the trip, or a trip, still be substantiated? Yes, maybe — but if it happened, would a man go to prison for three years without anyone having mentioned it?

As I noted, Mueller laid out the following in the unredacted summary of Cohen’s cooperation.

Consider this passage in the Mueller Cohen sentencing memo.

The defendant’s false statements obscured the fact that the Moscow Project was a lucrative business opportunity that sought, and likely required, the assistance of the Russian government. If the project was completed, the Company could have received hundreds of millions of dollars from Russian sources in licensing fees and other revenues. The fact that Cohen continued to work on the project and discuss it with Individual 1 well into the campaign was material to the ongoing congressional and SCO investigations, particularly because it occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election. Similarly, it was material that Cohen, during the campaign, had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia.

Cohen’s lies, aside from attempting to short circuit the parallel Russian investigations, hid the following facts:

Trump Organization stood to earn “hundreds of millions of dollars from Russian sources” if the Trump Tower deal went through.

Cohen’s work on the deal continued “well into the campaign” even as the Russian government made “sustained efforts … to interfere in the U.S. presidential election.”

The project “likely required[] the assistance of the Russian government.”

“Cohen [during May 2016] had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia [Dmitri Peskov].”

But because the new Cohen details (along with the fact that he booked tickets for St. Petersburg the day of the June 9 meeting, only to cancel after the Russian hack of the DNC became public) didn’t happen in Prague, it’s proof, according to NPR, that there is no collusion. [Note, NPR has revised this lead and added an editors note labeling this piece as analysis, not news.]

Political and legal danger for President Trump may be sharpening by the day, but the case that his campaign might have conspired with the Russian attack on the 2016 election looks weaker than ever.

There are other errors in the piece. It claims “Manafort’s lawyers say he gave the government valuable information,” but they actually claimed he didn’t lie (and it doesn’t note that the two sides may have gone back to the drawing board after that public claim). Moreover, the column seems to entirely misunderstand that Manafort’s plea (would have) excused him from the crimes in chief, which is why they weren’t charged. Nor does it acknowledge the details from prosecutors list of lies that implicate alleged GRU associate Konstantin Kilimnik in an ongoing role throughout Trump’s campaign.

Then there’s the NPR complaint that Mike Flynn, after a year of cooperation, is likely to get no prison time. It uses that to debunk a straw man that Flynn was a Russian foreign agent.

Does that sound like the attitude they would take with someone who had been serving as a Russian factotum and who had been serving as a foreign agent from inside the White House as national security adviser, steps away from the Oval Office?

That’s never been the claim (though the Russians sure seemed like they were cultivating it). Rather, the claim was that Flynn hid details of Trump’s plans to ease sanctions, an easing of sanctions Russians had asked Don Jr to do six months earlier in a meeting when they offered him dirt. The 302 from his FBI interview released last night makes it clear that indeed he did.

Finally, NPR is sad that Carter Page hasn’t been charged.

Will the feds ever charge Trump’s sometime foreign policy adviser, Carter Page, whom they called a Russian agent in the partly declassified application they made to surveil him?

This is not a checklist, where Trump will be implicated in a conspiracy only if the hapless Page is indicted (any case against whom has likely been spoiled anyway given all the leaking). The question, instead, is whether Trump and his spawn and campaign manager and longtime political advisor (the piece names neither Don Jr nor Roger Stone, both of whom have been saying they’ll be indicted) entered into a conspiracy with Russians.

In short, this piece aims to measure whether there was “collusion” not by looking at the evidence, but by looking instead at the Steele dossier to see if it’s a mirror of the known facts.

But NPR isn’t the only outlet measuring reality by how it matches up to the Steele dossier. This piece describes that Michael Isikoff thinks, “All the signs to me are, Mueller is reaching his end game, and we may see less than what many people want him to find,” in part because of the same three points made in the NPR piece (Cohen didn’t go to Prague, no pee tape has been released, and Flynn will get no prison time), but also because Maria Butina — whose investigation was not tied to the Trump one, but whom Isikoff himself had claimed might be — will mostly implicate her former boyfriend, Paul Erickson. In the interview, Isikoff notes that because the dossier has not been corroborated, calling it a “mixed record, at best … most of the specific allegations have not been borne out” and notes his own past predictions have not been fulfilled. Perhaps Isikoff’s reliance on the dossier arises from his own central role in it, but Isikoff misstates some of what has come out in legal filings to back his claim that less will come of the Mueller investigation than he thought.

Then there is Chuck Ross. Like Isikoff, Ross has invested much of his investigative focus into the dossier, and thus is no better able than Isikoff to see a reality but for the false mirror of the dossier. His tweet linking a story laying out more evidence that Michael Cohen did not go to Prague claims that that news is “a huge blow for the collusion narrative.”

Even when Ross wrote a post pretending to assess whether the Michael Cohen plea allocution shows “collusion,” Ross ultimately fell back on assessing whether the documents instead proved the dossier was true.

Notably absent from the Mueller filing is any indication that Cohen provided information that matches the allegations laid out in the Steele dossier, the infamous document that Democrats tout as the roadmap to collusion between the Trump campaign and Russian government.

The most prominent allegation against Cohen in the 35-page report is that he traveled to Prague in August 2016 to meet with Kremlin insiders to discuss paying off hackers who stole Democrats’ emails.

The Isikoff comments appear to have traveled via Ross to Trump’s Twitter thumbs, all without assessing the evidence in plain sight.

Meanwhile, Lawfare is erring in a parallel direction, checking on the dossier to see “whether information made public as a result of the Mueller investigation—and the passage of two years—has tended to buttress or diminish the crux of Steele’s original reporting.”

Such an exercise is worthwhile, if conducted as a measure of whether Christopher Steele obtained accurate intelligence before it otherwise got reported by credible, public sources. But much of what Lawfare does does the opposite — assessing reports (it even gets the number of reports wrong, saying there are 16, not 17, which might be excusable if precisely that issue hadn’t been the subject of litigation) out of context of when they were published. Even still, aside from Steele’s reports on stuff that was already public (Carter Page’s trip to Moscow, Viktor Yanukovych’s close ties to Paul Manafort), the post reaches one after another conclusion that the dossier actually hasn’t been confirmed.

There’s the 8-year conspiracy of cooperation, including Trump providing Russia intelligence. [my emphasis throughout here]

Most significantly, the dossier reports a “well-developed conspiracy of co-operation between [Trump and his associates] and the Russian leadership,” including an “intelligence exchange [that] had been running between them for at least 8 years.” There has been significant investigative reporting about long-standing connections between Trump, his associates and Kremlin-affiliated individuals, and Trump himself acknowledged that the purpose of a June 2016 meeting between his son, Donald Trump Jr. and a Kremlin-connected lawyer was to obtain “dirt” on Hillary Clinton. But there is, at present, no evidence in the official record that confirms other direct ties or their relevance to the 2016 presidential campaign.

There’s the knowing support for the hack-and-leak among Trump and his top lackeys.

It does not, however, corroborate the statement in the dossier that the Russian intelligence “operation had been conducted with the full knowledge and support of Trump and senior members of his campaign team.”

There’s Cohen’s Trump Tower deal.

These documents relate to Cohen’s false statements to Congress regarding attempted Trump Organization business dealings in Russia. The details buttress Steele’s reporting to some extent, but mostly run parallel, neither corroborating nor disproving information in the dossier.

There’s Cohen’s role in the hack-and-leak, including his trip to Prague.

Even with the additional detail from the Cohen documents, certain core allegations in the dossier related to Cohen—which, if true, would be of utmost relevance to Mueller’s investigation—remain largely unconfirmed, at least from the unredacted material. Specifically, the dossier reports that there was well-established, continuing cooperation between the Trump campaign and the Kremlin; that Cohen played a central role in the coordination of joint efforts; and that he traveled to Prague to meet with Russian officials and cut-outs.

There’s Papadopoulos, who (as Lawfare admits) doesn’t show up in the dossier; here they argue he could have, without asking why Steele missed him running around London talking to people who traveled in Steele’s circles.

We revisit his case because it resonates with one of the themes of the dossier, which is the extensive Russian outreach effort to an array of individuals connected to the Trump campaign. Steele’s sources reported on alleged interactions between Carter Page and Russian officials, but Papadopoulos’s conduct would have fit right in.

Again, except for the stuff that was publicly known, Lawfare assesses one after another claim from the dossier and finds that Mueller’s investigation has not corroborated the specific claims, even while Mueller has provided ample evidence of something else going on. But that doesn’t stop Lawfare from claiming that Mueller has “confirm[ed] pieces of the dossier.”

The Mueller investigation has clearly produced public records that confirm pieces of the dossier. And even where the details are not exact, the general thrust of Steele’s reporting seems credible in light of what we now know about extensive contacts between numerous individuals associated with the Trump campaign and Russian government officials.

However, there is also a good deal in the dossier that has not been corroborated in the official record and perhaps never will be—whether because it’s untrue, unimportant or too sensitive. As a raw intelligence document, the Steele dossier, we believe, holds up well so far. But surely there is more to come from Mueller’s team. We will return to it as the public record develops.

In the end, I actually think Mueller may show that Trump, Stone, and Manafort did abet the hack-and-leak campaign, certainly the later parts of it, and that the Trump Tower deal was a key part of the quid pro quo. That’s aside from anything that Trump did with analytics data made available, if it was. But Mueller has just shown the outlines of where a case in chief might fit thus far. And where has has, those outlines raise one after another question of why Steele missed evidence (like the June 9 meeting) that was literally sitting in front of him. No one is answering those questions in these retrospectives.

One reason this effort, coming from Lawfare, is particularly unfortunate is because of a detail recently disclosed in Comey’s recent testimony to Congress. As you read, remember that this exchange involves Mark Meadows, who is the source of many of the most misleading allegations pertaining to the Russian investigation. In Comey’s first appearance this month (given Comey’s comments after testifying yesterday, I expect we’ll see more of the same today when his transcript is released), Meadows seemed to make much of the fact that Michael Sussman, who works with Marc Elias at Perkins Coie, provided information directly to Lawfare contributor James Baker.

Mr. Meadows. So are you saying that James Baker, your general counsel, who received direct information from Perkins Coie, did so and conveyed that to your team without your knowledge?

Mr. Comey. I don’t know.

Mr. Meadows. What do you mean you don’t know? I mean, did he tell you or not?

Mr. Comey. Oh, I — well —

Mr. Meadows. James Baker, we have testimony that would indicate that he received information directly from Perkins Coie; he had knowledge that they were representing the Democrat National Committee and, indeed, collected that information and conveyed it to the investigative team. Did he tell you that he received that information from them? And I can give you a name if you want to know who he received it from.

Mr. Comey. I don’t remember the name Perkins Coie at all.

Mr. Meadows. What about Michael Sussmann?

Mr. Comey. I think I’ve read that name since then. I don’t remember learning that name when I was FBI Director. I was going to ask you a followup, though. When you say “that information,” what do you mean?

Mr. Meadows. Well, it was cyber information as it relates to the investigation.

Mr. Comey. Yeah, I have some recollection of Baker interacting with — you said the DNC, which sparked my recollection — with the DNC about our effort to get information about the Russian hack of them —

Mr. Meadows. Yeah, that’s — that’s not — that’s not what I’m referring to.

Mr. Comey. — but I don’t — I don’t remember anything beyond that.

Mr. Meadows. And so I can give you something so that you — your counsel can look at it and refresh your memory, perhaps, as we look at that, but I guess my concern is your earlier testimony acted like this was news to you that Perkins Coie represented the Democratic National Committee, and yet your general counsel not only knew that but received information from them that was transmitted to other people in the investigative team. [my emphasis]

I have long wondered how the Perkins Coie meeting with the FBI on the hack timed up with the hiring, by Fusion GPS working for Perkins Coie, of Christopher Steele lined up, and that appears to be where Meadows is going to make his final, desperate stand. An earlier version of this hoax revealed that it pertained to materials on hacking, but did not specify that Steele had anything to do with it (indeed, Steele was always behind public reporting on the hack-and-leak).

Still, it would be of more public utility for Lawfare to clarify this detail than engage in yet another exercise in rehabilitating the dossier.

Instead, they — just like everyone else choosing not to look for evidence (or lack thereof) in the actual evidence before us — instead look back to see whether Steele’s dossier was a mirror of reality or something else entirely. If it’s the latter — and it increasingly looks like it is — then it’s time to figure out how and what it is.

Update: Cheryl Rofer did a line by line assessment of Steele’s dossier which is worthwhile. I would dispute a number of her claims (and insist that Steele’s reporting on the hacks be read in the temporal context in which he always lagged public reporting) and wish she’d note where the public record shows facts that actually conflict with the dosser. But it is a decent read.

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