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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An ongoing Kraken conspiracy to pay off the pardon

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

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

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

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

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

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

The Clinesmith Sentencing Memos: Politically Biased Data In, Politically Biased Data Out

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The government and Kevin Clinesmith — the FBI lawyer who altered a document relating to the Carter Page FISA application — submitted their sentencing memos in his case yesterday. The sentencing guidelines call for 0 to 6 months of prison time (as they did for the now pardoned Mike Flynn). Clinesmith asked for probation. The government asked for a sentence in the middle to top of that range — effectively calling for 3 to 6 months of prison time.

I think the government has the better argument on a key point, for reasons that I expect will be very persuasive to the judge in the case, James Boasberg, who is also the presiding FISA judge. The government argues that Clinesmith’s actions undermined the integrity of the FISA process.

The defendant’s conduct also undermined the integrity of the FISA process and struck at the very core of what the FISC fundamentally relies on in reviewing FISA applications: the government’s duty of candor. The FISC serves as a “check on executive branch decisions to conduct surveillance in order to protect the fourth amendment rights of U.S. persons[,]” but it can “serve those purposes effectively only if the applicant agency fully and accurately provides information in its possession that is material to whether probable cases exists.” Order, In Re Accuracy Concerns Regarding FBI Matters Submitted to the FISC, Docket No. Misc. 19-02, at 2 (FISA Ct. Dec. 17, 2019) (internal quotations and citations omitted). Accordingly, and particularly because FISA applications involve ex parte proceedings with no adverse party on the other side to challenge the facts, the government “has a heightened duty of candor to the [FISC].” Id. (internal quotations and citations omitted). In other words, “[c]andor is fundamental to [the FISC’s] effective operation[.]” Id. (citation omitted).

While I think the government’s case on Clinesmith’s understanding of the term “source” is not persuasive, this language is. It matters that Clinesmith did this within the context of the FISA process. Boasberg has a real incentive to ensure that those preparing FISA applications do think of Clinesmith as an object lesson about the duty of candor. I expect he’ll agree with the government and impose some prison term.

That said, the government sentencing memo goes off the rails on another point, one that badly discredits the John Durham investigation.

Both the government and Clinesmith provide the same explanation for why he did what he did: it was a shortcut to avoid filing a footnote with the FISA court.

Clinesmith explains it this way:

Kevin, however, reviewed the OGA email and realized that it did not specifically address the issue of whether Individual #1 had been a source. In a misguided attempt to save himself time and the embarrassment of having to backtrack on his assurance he had it in writing, Kevin forwarded the OGA’s response to the SSA (including the list of OGA reports) immediately after telling the SSA he would do so, but Kevin added the phrase notated in bold to reflect his understanding of Individual #1’s status:

[The OGA uses] the [digraph] to show that the encrypted individual . . . is a [U.S. person]. We encrypt the [U.S. persons] when they provide reporting to us. My recollection is that [Individual #1] was or is . . . [digraph] and not a “source” but the [documents] will explain the details.

OIG Report at 254-55.

And the government endorses that explanation in its sentencing memo (in language that further reinforces why Clinesmith should be treated sternly to preserve the integrity of the FISA process).

By his own words, however, it appears that the defendant falsified the email in order to conceal Individual #1’s former status as a source and to avoid making an embarrassing disclosure to the FISC. Such a disclosure would have likely drawn a strong and hostile response from the FISC for not disclosing it sooner since the FBI had the information in its possession before the first FISA application was filed. Indeed, in the June 19, 2017 instant message conversation with the SSA, the defendant wrote “at least we don’t have to have a terrible footnote” explaining that Individual #1 was a source. OIG Report at 253. While the defendant told OIG he was referring to how “laborious” it would be to draft a footnote explaining that Individual #1 had been an OGA source, see id., that reading is self-serving and absurd. Moreover, as a practical matter, how laborious would it have been to draft a single footnote to explain to the FISC that Individual #1 had been a source for the OGA. The SSA involved in the application understood the defendant to be referring to the terrible optic of just now, in the fourth application, disclosing to the Court that Individual #1 had been a source for another agency after failing to do so in all of the prior applications. See id. Such a disclosure would have undermined the probable cause in the FISA application and the overall investigation of Individual #1, which the defendant was able to avoid by altering the email.

That’s it. At that point, both sides have explained what happened as the kind of bureaucratic sloppiness that can be particularly dangerous where there’s no transparency. Case closed. Clinesmith may not have meant this maliciously but because it happened as part of the FISA process it was very problematic.

Except the government continues by suggesting, without evidence, that Clinesmith did what he did out of political bias.

The public record also reflects that political or personal bias may have motivated or contributed to his offense conduct. As noted in the OIG Report and PSR, the defendant was previously investigated, and ultimately suspended, for sending improper political messages to other FBI employees. See OIG Report at 256 n.400. For example, on the day after the 2016 presidential election, the defendant wrote “I am so stressed about what I could have done differently.” Id. When another FBI colleague asked the defendant “[i]s it making you rethink your commitment to the Trump administration[,]” the defendant replied, “Hell no,” and then added “Viva le resistance.” Id. The defendant was referred to the Office of Professional Responsibility for investigation for these and other related messages, and in July 2018 he was suspended, without pay, for 14 days. The defendant’s prior disciplinary infraction for expressing his political views in a work setting is a relevant aspect of his background. Indeed, it is plausible that his strong political views and/or personal dislike of the current President made him more willing to engage in the fraudulent and unethical conduct to which he has pled guilty. While it is impossible to know with certainty how those views may have affected his offense conduct, the defendant plainly has shown that he did not discharge his important responsibilities at the FBI with the professionalism, integrity, and objectivity required of such a sensitive job position. [my emphasis]

There are several reasons why this argument is not only problematic, but betrays an unbelievable stupidity about the investigation before Durham.

First, as prosecutors admit, they have no evidence that Clinesmith’s claimed bias influenced his actions. The bias “may have motivated” him, “it is plausible” that it did, “it is impossible to know with certainty how those views may have affected his offense conduct.” This kind of language has no place in a sentencing memo. They’re effectively admitting they have no evidence, but relying on their lack of evidence anyway. It’s the kind of shoddy unethical work they’re trying to send Clinesmith to prison for.

Worse still, as Lawfare has shown, the data the government is relying on here comes from a politically biased application of discipline within DOJ. Since 2011, the only cases of people being disciplined for expressing political views on their government devices involved people opposing Trump.

Five employees, the documents show, have been disciplined for private communications using government devices in which they have criticized President Trump. But none, at least not since 2011, has been disciplined for similar conduct with respect to presidential candidates Hillary Clinton or Mitt Romney, or President Barack Obama—or for praising Trump.

[snip]

The verdict is now in, at least for the past four major-party presidential candidates, one of whom served as president of the United States for eight full years. FBI employees who voiced political sentiments in favor of or opposed to Clinton, Obama and Romney did not face consequences—nor did those who praised Trump. Those who criticize the current president appear to be the only people subject to discipline.

Lawfare raises the example of an FBI agent who — unlike Clinesmith, Lisa Page, or Peter Strzok — was running informants targeting Hillary in the Clinton Foundation investigation during the campaign who expressed clear bias. That person — clearly identified as biased by the same Inspector General who identified Clinesmith’s bias — wasn’t disciplined. And there are reports that a key witness in the Durham probe, Bill Barnett, similarly expressed pro-Trump bias on his devices. No one has done an IG Report into whether Barnett’s self-described role in single-handedly preventing the Mueller team from concluding that Mike Flynn lied to protect President Trump reflected improper political bias, much less sent him home for two weeks without pay. You can’t treat OPR’s treatment of biased FBI employees as valid for sentencing because it has already been demonstrated to be itself biased in the same way it treats as discipline-worthy.

Most importantly, you’d have to be fucking stupid to believe that supporting the FISA application of Carter Page in June 2017 would inherently reflect any anti-Trump bias. Even on the first application, the claim that targeting Page would be a way to hurt Trump was a bit of a stretch. At that point, the Trump campaign had very publicly distanced themselves from him because of his embarrassing ties to Russia. Thus, if the FBI treated Trump’s public statements with any weight, then they would be right to view Trump as victimized by Page, someone pushing his pro-Russian views far beyond what the candidate supported, someone removed from the campaign for precisely that reason. That’s one of the potential problems arising from a suspected foreign agent working on a campaign, that the person will make policy commitments that the candidate doesn’t support on behalf of the foreign country in question. Still, you might argue (and Bill Barr has argued) that the FBI targeted Page as a way to collect campaign emails, so one might make some claim to support the case that by targeting Page the FBI was targeting Trump with the October 2016 application.

But Clinesmith wasn’t in the loop on the non-disclosure of Page’s ties with CIA on that first application.

Kevin was not aware of that information, however. When he assisted the FBI’s efforts to obtain the initial FISA warrant, Kevin knew of no prior relationship between Individual #1 and the OGA. And he was not involved in any discussions—including the one discussed above between the case agent and DOJ attorney—concerning whether or not to include information about that relationship in the FISA application. As was typical, the DOJ attorney worked primarily with the case agent to collect and develop information for the FISA application. The first time Kevin was asked to inquire into whether, and to what extent, Individual #1 had a relationship with the OGA was in connection with the fourth and final application.

To suggest that someone would target Page in June 2017 because of anti-Trump bias, though, takes gigantic flights of fancy. Already in October 2016, it was clear that Page (like every other person originally targeted under Crossfire Hurricane) was using Trump, attempting to monetize his access to Trump to get a plush deal to start a think tank that, in his case, would have been funded by the Russian government. Page boasted to Stefan Halper the Russians had offered him an “open checkbook.”

But even before the first renewal in January 2017, Page had victimized Trump in the way that is dangerous for counterintelligence cases. When he was in Russia in December 2016 — at a time when he was still hoping to get a think tank funded by the Russian government — Page claimed to speak on behalf of Trump with respect to Ukraine policy.

According to Konstantin Kilimnik, Paul Manafort’s associate, Page also gave some individuals in Russia the impression that he had maintained his connections to President-Elect Trump. In a December 8, 2016 email intended for Manafort, Kilimnik wrote, “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DJT on a range of issues of mutual interest including Ukraine.”

There’s no record that Page made those representations with the approval of Trump. As such, Page’s representations risked undermining Trump’s ability to set his own foreign policy, whatever it was.

By June, moreover, Page had been totally marginalized by Trump’s people. The fourth warrant served significantly to obtain encrypted content from a phone Page had destroyed when he came under investigation. Tactically, there’s almost no way that that application would have generated new content involving Trump’s people because they were no longer talking to Page. So there’d be no political advantage to targeting him, neither based on the potential content the FBI might collect nor on any political taint from a guy the campaign had loudly dissociated from nine months earlier. Indeed, if your goal was to paint Trump as a pro-Russian asset, focusing on Page — the guy Trump himself had distanced himself from — is the last thing you’d do in June 2017. It’s just a profoundly stupid attack from Durham’s prosecutors, one with no basis in logic or (as the prosecutors admit) evidence.

In short, not only does the gratuitous, evidence-free insinuation that Clinesmith did what he did out of political bias misrepresent the biased quality of the targeting of those OPR investigations, but it fundamentally misunderstands why the FBI would investigate the infiltration of a campaign by a suspected foreign agent. Someone infiltrating Trump’s campaign on behalf of Russia could and — in Page’s misrepresentations in Moscow in December 2016 — did harm Trump. That’s a harm the FBI is paid to try to prevent. Here, prosecutors are trying to criminalize Clinesmith’s efforts to protect Trump from that kind of damage.

After making it clear in his first official filings that Durham’s team didn’t understand the investigation they were investigating, in this one, his prosecutors make it crystal clear they don’t understand how, if an agent of a foreign power were to hypothetically infiltrate a political campaign (which is what the FBI had good reason to believe in October 2016 and more evidence to believe by December 2016), it could be damaging to the campaign and to the President and to the country. That’s not just dangerous malpractice given their involvement in this case, but it betrays a really basic level of stupidity about how the world works.

The government is right that Clinesmith’s alteration of a document should be treated aggressively given that it occurred as part of the FISA process. But oh my goodness has the government discredited both this sentencing filing and the larger Durham investigation by betraying continued ignorance about the investigation, the politicized nature of the evidence they’re getting, and basic facts about counterintelligence investigations.

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Mike Pence Pardon of Trump for Flynn’s Pardon Would Obstruct the Mueller Investigation

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Because of the way the Mike Flynn pardon is written (who wrote it, given that Bill Barr has said this kind of pardon would be a crime, remains a very interesting question), it makes it clear its goal is to make all consequences for Flynn associated with the Mueller investigation to just go away. Poof! It purports to pardon Flynn for any fact known to Mueller’s investigation and anything associated with Judge Emmet Sullivan’s docket.

Not only does the pardon raise vagueness problems (and attempts to pardon future crimes), but it makes it crystal clear that it is an attempt to invalidate the entire Mueller investigation.

That makes it all the more clear it is an attempt to obstruct that investigation and all subsidiary investigations that arose from it. It is an attempt to use Presidential power to ensure that no special counsel can investigate the President and have criminal charges associated with it stick. Joe Biden’s DOJ could easily incorporate this pardon into the obstruction charge that Mueller prepared, with the benefit of yet another new act that Barr did not consider in his (legally suspect) declination for Trump.

That means that if Mike Pence were to pardon Trump for actions that included this pardon, he would then be obstructing the Mueller and associated investigation. Trump’s legal jeopardy would become Pence’s. Mike Pence, who got through the entire Mueller investigation without any personal exposure, would finally be left holding the bag for at least a subset of the crimes identified by it and committed to cover it up.

Which is why I’m interested in the focus of this Carol Lee piece on Flynn. While it relies on interviews with 20 people involved, it doesn’t even cover the full scope of the public documents relating to Flynn’s actions, and in substantial part simply narrativizes what’s in the Mueller Report. Of particular note, it doesn’t mention the evidence that certain members of the Transition were fully briefed on Flynn’s actions, while others (like Pence, but also Tom Bossert) were not. It doesn’t mention how the White House scripted Steve Bannon to claim sanctions weren’t discussed at Mar-a-Lago. It doesn’t mention that Flynn told Russia Trump knew of his calls and that Flynn made the first one while with Trump.

Where it breaks new ground is its focus on Pence. Pence is mentioned 47 times, including a quote from someone describing his reaction to discovering he had been lied to. The most important new ground pertains to how Trump tried to make Pence responsible for firing Flynn, and how Pence deferred the decision to Trump.

One of the president’s top aides thought Trump was trying to shift the burden of deciding whether to fire Flynn onto Pence when he said: “Mike, he disappointed you. He let you down.” Flynn had apologized privately to Pence who wasn’t happy with him. Still, Pence told Trump he’d support whatever decision he made.

The purported reason for firing Flynn was that he lied to Pence (the real reason is that Trump was hoping to stave off any investigation into himself).

And yet, even in a story that focuses closely on Pence (and describes him smoldering while reading the Flynn transcripts), it claims that Pence played no part in this story (while stopping short of stating that he or his Chief of Staff Nick Ayers and his aide Marc Lotter, the latter two of whom are named, had no part in it).

Vice President Mike Pence has so far been silent about the pardon.

[snip]

The White House and Pence’s office had no comment.

[snip]

Trump never said publicly or privately that Flynn had lied to him. Just to Pence, and, in a tweet in December 2017, the FBI.

Here’s the thing. Not only would pardoning Trump for this pardon for the first time give Pence criminal exposure in the Mueller and subsequent investigations. But because Pence was left out of the loop of what was really going on with Russia during the Transition and afterwards — the back channels, the efforts to undermine sanctions, yet more back channels — he would have no idea what he was serving to cover up by pardoning Trump.

I find Pence’s silence in this very noisy NBC piece to be quite intriguing.

The Facts “Known to” the Mueller Investigation: Judge Sullivan Should Demand the December 22, 2016 Flynn Transcript

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I wrote up four things that, if I were Judge Emmet Sullivan presiding over the Mike Flynn case, I would do:

  • Make Trump name Flynn’s crimes
  • Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon
  • Force DOJ to explain what went into the altered documents
  • Identify who wrote the pardon

I’ve been thinking especially about what may be unconstitutional vagueness in Trump’s pardon, which purports to pardon Flynn for any facts “known to” the Mueller investigation. How do you circumscribe facts “known to” an investigation? After all, the entire Justice Manual and a lot of US code was “known to” those who conducted the investigation. Much of Flynn’s biography became “known to” investigators. Is Flynn pardoned for anything pertaining to that? That would be prospective immunity that goes well beyond the President’s pardon power. And how can Trump pardon crimes “related” to the investigation that have not yet been committed (if, for example, Flynn were to become a lobbyist for Russia based on the warm relationship he established by lying to protect them and chose not to register as a foreign agent for them)?

And so in addition to forcing Trump to name the crimes for which he is pardoning Flynn (at least with respect to all those before Sullivan, which include his charged false statements, the selling out to Turkey related crimes that were part of the plea, and crimes committed in Sullivan’s court room and the EDVA grand jury), it seems Sullivan may have the ability to lay out what is included in that “known to” language.

As part of that, Sullivan may have the authority to demand that DOJ file all of Flynn’s 302s as well as the transcripts of Flynn’s calls with Sergey Kislyak (Sullivan might also ask DOJ to lodge the grand jury testimony implicating Flynn, because that, too, defines the scope of the pardon).

I’m certain that DOJ is trying to hide those 302s, but I also don’t think there’s anything all that surprising in there (indeed, I think we’d find that Flynn was knowingly shading testimony). But I still think it legally sustainable, not least because there’s reason to believe Flynn committed a crime with respect to a fact that I suspect was not known to Mueller, because it may have been deliberately withheld (again, I’ll explain more in January). That probably won’t send Flynn to prison, but it should be recorded.

The transcripts, however, are more interesting. Bizarrely, DOJ never submitted the transcripts in this docket. Sullivan asked for them after the Mueller Report came out, but DOJ refused based on their true contention that nothing in Flynn’s case relied on the transcripts. But the Motion to Dismiss absolutely did rely on the transcripts, because it was premised on the claim that Flynn did nothing wrong on the calls. Ken Kohl even invoked them in the September hearing before Sullivan. But in spite of the fact that a selection of those transcripts were released, they were never submitted in this docket. Sullivan may be able to demand them, if only to avoid the problem of Constitutional vagueness pertaining to the scope of Flynn’s pardon, particularly with regards to what facts were known to Mueller.

That’s where things get interesting. Because DOJ made claims before Sullivan — that Flynn did nothing wrong on his calls to Kislyak — relying on the transcripts, but it specifically withheld the transcript of a call that was included in the criminal information: the December 22, 2016 call.

As I’ve noted, when ODNI released these transcripts, they didn’t even release the summary of the December 22, 2016 call included in Flynn’s charges, much the transcript.

I believe one of the facts “known to” Mueller’s investigators, but not known to us, is that Trump was present for that call, possibly even listening in. As such, it’s certainly within the scope of things for which Trump intends to pardon Flynn. But to avoid any confusion going forward that it is included, it needs to be known to us, or at least knowable to a future DOJ.

DOJ would squawk (they’ll squawk anyway, but that’s their own damn fault for writing a pardon that suffers from vagueness).

Again, I’m not saying that this provides Sullivan a way to dismiss the charges (though I see no reason why he can’t dismiss without prejudice). It doesn’t. What it does do is make a record of the true scope of the pardon.

The Last Trickle of the Mueller 302s before the Biden Storm

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Yesterday, DOJ turned over 46 pages of Mueller 302s to Jason Leopold, what it claims is the final installment in response to the BuzzFeed FOIA.It is no such thing. This list, which has almost all of the released 302s (it doesn’t have the 11th and 12th releases entirely indexed), shows that DOJ has entirely withheld a great many 302s.

Among those withheld are every single Mueller 302 for Mike Flynn. It may be that, by holding John Durham on, Bill Barr created an excuse to withhold the 302s until after Emmet Sullivan affirms Flynn’s pardon.

There is a bit of intrigue in this last bit.

Unless I’m missing it, there’s no 302 identified from Trump Homeland Security Czar Tom Bossert. That’s particularly interesting because this September 2017 Mike Flynn warrant strongly suggests the Mueller team already had Bossert’s Transition emails, which would mean he retained his emails and turned them over. For all the wailing about this warrant (which Mueller used to obtain the GSA devices and emails of people like Steve Bannon and Jared Kushner), Bossert pretty clearly had already cooperated by this point.

Remember: KT McFarland had Bossert go find out from Lisa Monaco what the Obama Administration knew about Russia’s response to Obama’s sanctions before Flynn returned Sergey Kislyak’s phone call and undermined the sanctions.

This new batch doesn’t have a Bossert 302. But it does have at least 3 302s pertaining to an FBI detailee to the National Security Council, reflecting two interviews on October 10, 2017 (one plus this missing page, two), and Bill Priestap’s notes from talking to what is probably the same detailee (and Ezra Cohen-Watnick), and possibly a fourth 302 reflecting someone turning over 3 documents.

These seem to pertain to what happened to the MemCon of Trump’s meeting with Russian foreign minister Sergey Lavrov right after firing Jim Comey, at which Trump shared highly classified information and boasted about firing Comey. It appears the detailee was grilled about what he thought of Comey’s firing. Then, after the NYT published news that Trump shared classified information, he was grilled again by John Daley and Bossert without his own boss being present.

When [redacted] learned that he had been summoned, he suspected that it might have to do with a news article published earlier that day, which reported that President TRUMP  had revealed highly sensitive information during the meeting with LAVROV.

At the meeting, Bossert appears to have claimed that he would not have approved certain treatment of the MemCon, only to have the detailee remind him that, yes, both Bossert and Daly had signed off on however the MemCon had been treated. The detailee seemed to suggest that those who had seen the MemCon had been fired from NSC.

It seems possible that deep inside the Mueller investigation was a leak investigation into how the MemCon of that meeting got liberated.

The Investigations into the Russian Investigation Have Lasted 69% Longer than the Russian Investigation Itself

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The AP just broke the news that Bill Barr made John Durham a Special Counsel back in October so Durham can continue to investigate the Russian investigation after Joe Biden becomes President. Given the indications that Billy Barr had closed down the remaining aspects of the Russian investigation by September 18, and that Jeffrey Jensen closed his investigation by October 22, here are the presumed dates of the Russian investigation and some of the known investigations into the Russian investigation.

The investigations into the Russian investigation, combined, have lasted 2557 days. And this is not an inclusive list (for example, it doesn’t include John Bash’s investigation into the unmasking of Trump officials, which found no wrongdoing).

Even without all the investigations included, the investigations into the Russian investigation have, thus far, lasted 69% longer than the investigation itself.

And it’s still going.

 

Hours before Trump Pardoned Flynn, “Phil” Weighed in a Pardon

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Update: This was not Phil. It was someone testing Phil’s identity. I’m removing the post (though I’m sure it’s archived).

Four Things Judge Emmet Sullivan Should Do in the Wake of Flynn’s Pardon

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As I noted, Trump attempted to be expansive with his pardon of Mike Flynn. He failed. I think the chances that Flynn does prison time are almost as high today as they were last week.

And while I think there is absolutely nothing defective in the pardon that Trump signed and while I’m certain that Judge Sullivan will honor that pardon (though DOJ is asking him to dismiss the charges with prejudice; Sullivan should dismiss them without prejudice), there are four things that Sullivan has the means of doing to raise the cost of Trump’s pardon. Those are:

  • Make Trump name Flynn’s crimes
  • Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon
  • Force DOJ to explain what went into the altered documents
  • Identify who wrote the pardon

Make Trump name Flynn’s crimes

While whoever wrote this pardon tried (but failed) to make it comprehensive, it only names one of Flynn’s crimes: false statements (indeed, that’s the only crime that DOJ lists for the pardon on its website).

But by moving to withdraw his plea, Flynn put his other crimes before Judge Sullivan. So Sullivan has every right to inquire whether this pardon includes all of Flynn’s crimes. He could issue an order for Trump to come before him to answer whether the pardon forgives Flynn for:

  • His lies about what he said to Sergey Kislyak during the transition
  • Serving as an undisclosed Foreign Agent for Turkey
  • Lying about serving as an undisclosed Foreign Agent for Turkey
  • Conspiring with others to hide that he was an undisclosed Foreign Agent of Turkey
  • Lying about his own guilt and the circumstances surrounding his guilty pleas
  • Lying about lying to Flynn’s Covington lawyers

The answer to all those questions is yes. Trump does mean to pardon Mike Flynn for secretly working for Turkey while getting classified briefings. Trump does mean to pardon Flynn for lying to Sullivan (and he does know that Flynn did lie to Sullivan). Sullivan has a need to know that explicitly and he should get Trump on the record.

Trump won’t show, of course.

Until he is made to, after January 20th.

Note, I’d also make Trump state, under oath, when he signed the pardon. It is dated with Wednesday’s date, but I highly doubt that DOJ had it written by then. If Trump signed it after having lunch with Mike Pence yesterday, it’s possible that Trump didn’t write it this broadly until broaching a pardon for himself with Pence.

Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon

Judge Sullivan also has reason to want to know if someone offered Trump something of value for this pardon. He has evidence they did — in the altered documents designed to serve as a campaign attack on Joe Biden. And the news is full of evidence that Sidney Powell may have offered further benefit, in her efforts to challenge Trump’s election loss.

Sullivan should put both Flynn and Powell under oath and require that they confirm or deny whether they have offered favors to Trump for the pardon.

They won’t show, of course.

Until they are made to, after January 20th.

None of this would invalidate the pardon, of course. But if Trump got some other benefit from Flynn’s lies that went into this pardon, especially efforts to undermine a legal election, then the Attorneys General in those states that already investigating Trump’s efforts to steal the election would have reason to want to know that, and Sullivan has the means to get them under oath to do that.

Force DOJ to explain what went into the altered documents

People at both FBI and DOJ altered documents submitted in Sullivan’s court, the FBI by adding false dates to exhibits and DOJ by redacting footers indicating that the documents were covered by the protective order. Sullivan has reason to ask how that happened and who was involved in the effort.

Even if Trump pardoned everyone involved, there would still be a means for Sullivan to punish most of those involved, because most of those involved have law licenses and can be disbarred.

Sullivan should schedule a hearing — no need to rush, he might as well schedule it for January 26, after everyone involved gets a COVID shot — to ask the following people if they had a role in altering the documents (or eliciting a corrupt interview with Bill Barnett):

  • AUSA Jocelyn Ballantine
  • AUSA Sayler Fleming
  • AUSA Ken Kohl
  • US Attorney Jeffrey Jensen
  • FBI Executive Assistant Director John Brown
  • FBI Agent Keith Kohne
  • Acting DEA Administrator Timothy Shea
  • AG Bill Barr
  • DAG Jeffrey Rosen

Again, most of these people have law licenses that Sullivan could put at issue, and he has good reason to want to hold someone accountable for altering documents in his court.

These people won’t want to show. But after January 20th, they may have no way of avoiding it.

Identify who wrote the pardon

In his confirmation hearing, Bill Barr said that pardoning someone for giving false testimony would be a crime. Trump just committed that crime. Whatever lawyer wrote up the pardon language — whether it’s Barr or White House Counsel Pat Cipollone — just conspired to commit a crime.

Judge Sullivan should identify everyone who had a role.

[Fourth item added after the original post.]

Trump Attempts to Invalidate the Mueller Investigation

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Overnight, DOJ submitted the pardon language for Mike Flynn in his docket. It covers:

  • The false statements as charged under the criminal information filed in the docket
  • All possible offenses arising from the facts set forth in that and the Statement of Offense
  • All offenses that might arise from the proceedings under that docket number
  • All offenses under the investigative authority of Robert Mueller
  • All charges identified under Mueller’s authority, including anything identified by the grand juries in DC or Virginia

It is a breathtaking attempt to invalidate the work of Robert Mueller and Flynn’s subsequent lies to get out out of his legal jeopardy. This kind of pardon might work for others.

But it does not, in fact, go far enough. It would be child’s play to charge and convict Mike Flynn without violating the scope of this pardon, even if it were to stand as written.

I’ll explain how on January 21.