Mike Flynn Prosecutor Jocelyn Ballantine Tries to Square DOJ’s Crooked Circle

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DOJ and Mike Flynn responded to Amicus John Gleeson’s filing arguing that Judge Emmet Sullivan should reject DOJ’s motion to dismiss Flynn’s prosecution today.

Sidney Powell claims Bill Priestap’s attempt to shield Flynn is misconduct

Sidney Powell’s brief was like all her other ones, legally a shit-show, at times making false claims, at others rolling out a word salad designed to impress the frothy right. It did not substantively address Gleeson’s filing but instead mostly repeated the arguments made in support of the petition for mandamus.

Two details are important, however. First, Powell repeatedly argued that both the FBI and DOJ’s prosecutors engaged in misconduct, in the latter case arguing the prosecutors withheld information covered by Brady.

Given the substantial briefing and documentation by the Justice Department of the reasons for dismissal here, based primarily on the Government’s proper recognition that it should correct its own misconduct which included suppression of extraordinary exculpatory evidence, this court has no further role to play than to grant dismissal forthwith. Smith, 55 F.3d at 159; United States v. Hamm, 659 F.2d 624, 631 (5th Cir. 1981).

[snip]

In its ninety-two-page decision denying General Flynn all exculpatory Brady material he requested, the court distinguished this case from United States v. Stevens, Criminal Action No. 08-231 (EGS) (D.D.C Apr. 1, 2009), because in Stevens, the government moved to dismiss the case upon admitting misconduct in the suppression of Brady evidence. ECF No. 144 at 91. That distinction is eviscerated with the Government’s Motion to Dismiss here. Moreover, in Stevens, the government filed a mere two-page motion to dismiss. Ex. 4. Here, the Government has moved to dismiss in a hundred-page submission that includes 86 pages of new documentation that completely destroys the premise for any criminal charges. This evidence was long sought by General Flynn but withheld by the prior prosecution team and its investigators and wrongly denied to him by this court.

[snip]

Amicus elides the reality of the egregious government misconduct of the FBI Agents—particularly that of Comey, McCabe, Strzok, Page, Pientka, Priestap and others who met repeatedly to pursue the targeted “take-out” of General Flynn for their political reasons and those of the “entirety lame duck usic.”

That last reference to the “entirely lame duck usic” refers to some text messages involving Strzok which, she claims, “the defense recently found that were never produced to it by the Government,” which given how the government provided the text messages probably means only that she didn’t look before. The text messages show Strzok describing a conversation with Bill Priestap about withholding the full transcripts of Flynn’s calls with Sergey Kislyak from the Obama White House to avoid having Obama dead-enders politicizing them — precisely the opposite of what her entire argument is premised on!!!.

So Powell’s new smoking gun–the thing she’s using to rile up the frothers–is proof that Strzok tried really hard to protect Flynn from precisely what she claims did him in, a politicized prosecution led by Obama people. In doing so, she presents evidence (and not for the first time) that Strzok tried really hard to protect Flynn.

Jocelyn Ballantine invents entirely new reasons why DOJ is moving to dismiss

The government’s response is the least-shitty argument DOJ has made in defense of abandoning Flynn’s prosecution, yet it still presents new problems for their case.

The government response was signed by a different team of people than have signed anything submitted thus far. Whereas only Timothy Shea — since promoted to be acting DEA Administrator — signed the initial motion to dismiss, and a team including five people from the Solicitor General’s office, including outgoing Solicitor General Noel Francisco himself, outgoing Criminal Division head Brian Benczkowski, in addition to people from the DC US Attorney’s office and career National Security Division prosecutor Jocelyn Ballantine signed the response on the DC Circuit petition for mandamus, this filing includes only the the latter three:

Whereas the Circuit filing necessarily argued a constitutional issue — the limits of a judge’s authority to deny a motion to dismiss the prosecution, this one argued an admittedly overlapping criminal one, one that makes the third different argument justifying the motion to dismiss. Significantly, this is a defense of the motion to dismiss that (unlike the original one) Jocelyn Ballantine, one of the two prosecutors on the case, was willing to sign.

Along the way, Ballantine presents new reasons to substantiate the claim that DOJ couldn’t convince a jury Flynn was guilty, including describing two things that she now claims weren’t in the notes but were in Flynn’s final 302.

According to the final FD-302, when the agents asked Flynn whether he recalled any conversation with Kislyak in which he encouraged Kislyak not to “escalate the situation” in response to the sanctions, Flynn responded, “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” Doc. 198-7, at 6. According to the FD-302, the agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions; Flynn stated that he did not recall such a conversation. Id. The agents’ handwritten notes do not reflect that question being asked or Flynn’s response. See Doc. 198-13, at 2-8.

The final FD-302 also reports that Flynn incorrectly stated that, in earlier calls with Kislyak, Flynn had not made any request about voting on a UN Resolution in a certain manner or slowing down the vote. Doc. 198-7, at 5. Flynn indicated that the conversation, which took place on a day when he was calling many other countries, was “along the lines of where do you stand[ ] and what’s your position.” Id. The final FD-302 also states that Flynn was asked whether Kislyak described any Russian response to his request and said that Kislyak had not, id., although the agents’ handwritten notes do not reflect Flynn being asked that question or giving that response, see Doc. 198-13, at 2-8.

[snip]

The interview was not recorded and the final FD-302 includes two instances where the agents did not record a critical question and answer in their handwritten notes: (1) that agents asked Flynn whether he recalled a conversation in which Kislyak stated that Russia had taken the incoming administration’s position into account when responding to the sanctions, and Flynn stated that he did not recall such a conversation; and (2) that the agents asked whether Kislyak described any Russian response to his request, and Flynn said that Kislyak had not.

This is actually a claim Sidney Powell has made in the past, though I found notes consistent with those questions here, explicitly so with respect to the sanctions conversation:

[Update: Note that, as I first pointed out, the notes here are reversed; Strzok’s are the ones on the left, Pientka’s are the ones on the right.]

Ballantine herself was on a filing stating that, “The final interview report, just like the agent’s handwritten notes, reflect all of the above material false statements” (though that filing did not address whether Flynn was asked about Russia taking Trump’s stance into account; see especially page 5 for the extended discussion that lacks that). And Judge Sullivan agreed, ruling in December that,

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.”

Ballantine–consistent with her past signed filing–does not contest that some of Flynn’s lies are clearly included in the notes, and so doesn’t contest that the notes clearly show Flynn lying at least twice to prosecutors.

Ballantine also further develops the “new thing” that the motion to dismiss relied on to justify flip-flopping on past DOJ stances (though it is the same “new thing” presented in the Circuit filing): the new developments involving essential participants in Flynn’s prosecution:

Furthermore, since the time of the plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case. Strzok was fired from the FBI, in part because his text messages with Page revealed political bias against the current administration and “implie[d] a willingness to take official action to impact the presidential candidate’s electoral prospects.” U.S. Dep’t of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election xii (December 2018). The second interviewing agent has been accused of acting improperly in connection with the broader investigation. McCabe, who authorized Flynn’s interview without notifying either the Department of Justice or the White House Counsel, was fired for conduct that included lying to the FBI and lying under oath. U.S. Dep’t of Justice, Office of the Inspector General, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (February 2018). In addition, significant witnesses have pending investigations or lawsuits against the Department of Justice, which could create further questions about their testimony at trial. See Strzok v. Barr, Civ. No. 19-2367 (D.D.C. Aug. 6, 2019); McCabe v. Barr, Civ. No. 19-2399 (D.D.C. Aug. 8, 2019); Page v. Dep’t of Justice, Civ. No. 19-3675 (D.D.C. Dec. 10, 2019). Those developments further support the government’s assessment about the difficulty it would have in proving its case to a jury beyond a reasonable doubt.

While this information would definitely make it harder (but in no way impossible, not least because there are witnesses like Mike Pence and KT McFarland to Flynn’s lies) to prove DOJ’s case, as Gleeson pointed out in his brief, DOJ didn’t have to do that — they already have two allocutions of guilt, including one that affirmed Flynn could never again raise such issues! Moreover, all but one of these new “new things” happened before Flynn reallocuted his guilty plea, meaning Ballantine is in no position to argue they justify abandoning the prosecution. Plus, they conflict with the “new things” cited in the Shea motion to dismiss explaining the DOJ flip-flop.

Ballantine creates a case and controversy over whether prosecutorial misconduct occurred

Ballantine presents some things she’s willing to buy off on to argue why DOJ was right to dismiss the prosecution.

But along the way, she contested the central point in Flynn’s argument, that any of this amounted to prosecutorial misconduct.

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

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

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

Ballantine directly contradicts the suggestion made in the Shea motion to dismiss, that any of the documents turned over were new or Brady material; they’ve been demoted to “relevant to.” More importantly, she says that Flynn is wrong to claim either that DOJ said there was misconduct (it did not) or that any misconduct occurred.

Now there’s a case and controversy between DOJ and Flynn. DOJ says no DOJ abuse occurred, in this filing quite explicitly. Flynn says it’s why his prosecution must be dismissed.

While it’s not central to the issue before John Gleeson, it is something he can exploit.

Ballantine dances around DOJ’s shitty materiality claims

Particularly given how Ballantine dances around the main reason DOJ claims it moved to dismiss Flynn’s prosecution, because his lies weren’t material.

This motion was better argued all around than the Main DOJ ones, including the one bearing the Solicitor General’s name. And in numerous places, it presents actual nuance and complexity. One key place it does so is where it admits that DOJ has some motions still pending before Sullivan.

Flynn subsequently retained new counsel. Doc. 88, at 2. He then filed a Brady motion, which the Court denied. Doc. 144, at 2-3. In January 2020, Flynn moved to withdraw his guilty plea, asserting ineffective assistance of prior counsel. Docs. 151, 154, 160. The government has not yet responded to this motion. Flynn also filed a motion to dismiss the case for government misconduct. Doc. 162. In February 2020, the government opposed Flynn’s motion to dismiss. Doc. 169. Flynn repeatedly supplemented the motion after receiving the government’s response, Docs. 181, 188, 189; the government has not submitted a further filing responding to the additional allegations.

On May 7, 2020, while those motions remained pending, the government moved to dismiss the case under Federal Rule of Criminal Procedure 48(a). The government first explained a court’s “narrow” role in addressing a Rule 48(a) motion. Doc. 198, at 10 (quoting United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016)). The government then set out its reasons for the dismissal, explaining why it had concluded that continued prosecution was not warranted. Id. at 12-20; see pp. 25-32, infra. Flynn consented to the motion. Doc. 202. [my emphasis]

Already this passage presents problems, because Ballantine doesn’t explain why DOJ opposed Flynn’s motion to dismiss in February but does not now, even though none of her “new things” were new in February.

But she doesn’t mention the still-pending DOJ sentencing memorandum, submitted after all the “new things” that Ballantine laid out were already known. That sentencing memorandum not only suggested Flynn should do prison time, but it also argued not only that Flynn’s lies were material, but that Judge Sullivan should consider Flynn’s material FARA lies in his sentencing.

On December 1, 2017, the defendant entered a plea of guilty to a single count of “willfully and knowingly” making material false statements to the Federal Bureau of Investigation (“FBI”) regarding his contacts with the Government of Russia’s Ambassador to the United States (“Russian Ambassador”) during an interview with the FBI on January 24, 2017 (“January 24 interview”), in violation of 18 U.S.C. § 1001(a)(2). See Information, United States v. Flynn, No. 17-cr-232 (D.D.C. Nov. 30, 2017) (Doc. 1); Statement of Offense at ¶¶ 3-4, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (Doc. 4) (“SOF”). In addition, at the time of his plea, the defendant admitted making other material false statements and omissions in multiple documents that he filed on March 7, 2017, with the Department of Justice (“DOJ”) pursuant to the Foreign Agents Registration Act (“FARA”), which pertained to his work for the principal benefit of the Government of Turkey. See SOF at ¶ 5. These additional material false statements are relevant conduct that the Court can and should consider in determining where within the Guidelines range to sentence the defendant.

[snip]

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

[snip]

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

[snip]

The defendant now claims that his false statements were not material, see Reply at 27-28, and that the FBI conducted an “ambush-interview” to trap him into making false statements, see Reply at 1. The Circuit Court recently stated in United States v. Leyva, 916 F.3d 14 (D.C. Cir. 2019), cert. denied, No. 19-5796, 2019 WL 5150737 (U.S. Oct. 15, 2019), that “[i]t is not error for a district court to ‘require an acceptance of responsibility that extended beyond the narrow elements of the offense’ to ‘all of the circumstances’ surrounding the defendant’s offense.” Id. at 28 (citing United States v. Taylor, 937 F.2d 676, 680-81 (D.C. Cir. 1991)). A defendant cannot “accept responsibility for his conduct and simultaneously contest the sufficiency of the evidence that he engaged in that conduct.” Id. at 29. Any notion of the defendant “clearly” accepted responsibility is further undermined by the defendant’s efforts over the last four months to have the Court dismiss the case. See Reply at 32.

[snip]

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

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime.

[snip]

As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

After the most recent “new thing” Ballantine cited (the DOJ IG Report), in a motion that is still pending before Sullivan, she argued that these lies were material. She doesn’t admit it’s still pending or in any other way deal with it. But Ballantine is making an argument here that conflicts with an argument she signed off on (and spent a great deal of time getting approved by all levels of DOJ) in January.

That presents problems for her claim that the motion to dismiss is the “authoritative position of the Executive.”

The Rule 48(a) motion here represents the authoritative position of the Executive Branch,

A still-pending sentencing memo she signed says Flynn’s lies were material, which conflicts with the pending motion to dismiss. Both are the still-authoritative position of the Executive.

She makes things worse by adopting only one part of Shea’s argument about materiality (though this is consistent with the DC Circuit brief). Shea argued the lies were not material, at all.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.

[snip]

The particular circumstances of this case militate in favor of terminating the proceedings: Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation. Because the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt, the Government now moves to dismiss the criminal information under Rule 48(a).

[snip]

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

[snip]

In light of the fact that the FBI already had these transcripts in its possessions, Mr. Flynn’s answers would have shed no light on whether and what he communicated with Mr. Kislyak.—and those issues were immaterial to the no longer justifiably predicated counterintelligence investigation. Similarly, whether Mr. Flynn did or “did not recall” (ECF No. 1) communications already known by the FBI was assuredly not material.

[snip]

Even if he told the truth, Mr. Flynn’s statements could not have conceivably “influenced” an investigation that had neither a legitimate counterintelligence nor criminal purpose. See United States v. Mancuso, 485 F.2d 275, 281 (2d Cir. 1973) (“Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation.”); cf. United States v. Hansen, 772 F.2d 940, 949 (D.C. Cir. 1985) (noting that a lie can be material absent an existing investigation so long as it might “influenc[e] the possibility that an investigation might commence.”). Accordingly, a review of the facts and circumstances of this case, including newly discovered and disclosed information, indicates that Mr. Flynn’s statements were never “material” to any FBI investigation.6

6 The statements by Mr. Flynn also were not material to the umbrella investigation of Crossfire Hurricane, which focused on the Trump campaign and its possible coordination with Russian officials to interfere with the 2016 presidential election back prior to November 2016. See Ex. 1 at 3; Ex. 2 at 1-2. Mr. Flynn had never been identified by that investigation and had been deemed “no longer” a viable candidate for it. Most importantly, his interview had nothing to do with this subject matter and nothing in FBI materials suggest any relationship between the interview and the umbrella investigation. Rather, throughout the period before the interview, the FBI consistently justified the interview of Flynn based on its no longer justifiably predicated counterintelligence investigation of him alone.

Shea further argued that Sullivan’s past judgment that these lies were material came before DOJ’s view on the case changed.

7 The Government appreciates that the Court previously deemed Mr. Flynn’s statements sufficiently “material” to the investigation. United States v. Flynn, 411 F. Supp. 3d 15, 41-42 (D.D.C. 2019). It did so, however, based on the Government’s prior understanding of the nature of the investigation, before new disclosures crystallized the lack of a legitimate investigative basis for the interview of Mr. Flynn, and in the context of a decision on multiple defense Brady motions independent of the Government’s assessment of its burden of proof beyond a reasonable doubt.

Ballatine does parrot Shea’s claim that “additional information” has emerged since Sullivan ruled.

In any event, additional information that was not before the Court emerged in the months since the decision that significantly alters the analysis.

The problem, here, is that in her filing, that’s as much a false claim as Shea’s claim to have found “new things” were. Ballantine’s “new things” was all known to the government well before Sullivan ruled.

As to materiality itself, the only part of Shea’s argument about materiality that Ballantine adopts pertains to whether she could prove it.

The government expressed concern specifically about its ability to prove materiality.

[snip]

The government’s Rule 48(a) motion accordingly explained that it doubted whether, in light of those aspects of the record, it should attempt to prove to a jury that the information was objectively material.

Which, as Gleeson has pointed out, doesn’t matter given Flynn’s past guilty plea.

Perhaps because of that, Ballantine adopts a different approach than Shea did in arguing that Sullivan’s past ruling didn’t matter. She argues that only a jury can decide materiality.

But as the Supreme Court has held, determining whether information is material is an essential element of the crime that must be determined by a jury, and cannot be determined as a matter of law by a court. United States v. Gaudin, 515 U.S. 506, 511- 512, 522-523 (1995). Indeed, the materiality inquiry is “peculiarly one for the trier of fact” because it requires “delicate assessments of the inferences a reasonable decision-maker would draw from a given set of facts and the significance of those inferences to him.” Id. at 512 (internal quotation marks and brackets omitted). For that reason, the Court’s determination could not resolve the government’s concerns about its materiality case at trial.

But then she imagines what the jury might think about the materiality of Flynn’s lies that — much of the subsequent developments make clear — actually did affect the investigation into him.

Amicus makes much of the fact that a defendant’s false statements can be material even when the investigators are not deceived by them, accusing the government of asking for “the suspension of settled law for this case, but not for any others.” Gleeson Br. 46-47 (citing United States v. Safavian, 649 F.3d 688, 691-692 (D.C. Cir. 2011) (per curiam)). Contrary to amicus’s assertion (at 46-47), however, that is entirely consistent with the government’s analysis. In Safavian, the D.C. Circuit rejected a defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them.” 649 F.3d at 691. As the government recognized in its motion to dismiss, the fact that the FBI knew at the time it interviewed Flynn the actual contents of his conversations with Kislyak does not render them immaterial. See Doc. 198, at 17 (citing Safavian, 649 F.3d 688 at 691-692). Rather, the fact that the FBI knew the content of the conversations is relevant because it would allow a jury to assess the significance the FBI in fact attached to that truthful information when the FBI learned it; and, absent reason to think that the FBI’s reaction was objectively unreasonable, that would inform the jury’s assessment of the significance a reasonable decision-maker would attach to the information.

Shea’s argument was — as Gleeson made clear — legally indefensible. Ballantine’s is legally more defensible. Except that she has already argued more persuasively against herself, in a still-pending filing that is, like the motion to dismiss, the authoritative position of the Executive Branch.

Ballantine’s argument here is more persuasive then — though inconsistent with — Shea’s. Except that she’s arguing with a still more persuasive Ballantine memorandum that remains before Sullivan.

Not only is DOJ arguing with DOJ, but Jocelyn Ballantine is arguing with Jocelyn Ballantine

With DOJ’s motion to dismiss, Bill Barr’s DOJ argued against what Bill Barr’s DOJ argued in a still pending sentencing memo submitted in January. DOJ’s response in the DC Circuit mandamus petition argued against Bill Barr’s admission that Emmet Sullivan has a say in whether to dismiss the case or not. Now, Jocelyn Ballantine is arguing that DOJ’s past (but still-pending) statements about materiality conflict with its current statements.

The DC Circuit filing and this one conflict with Shea about what the “new things” are justifying such flip-flops.

But crazier still, Ballantine argues that these conflicting statements are the authoritative view, singular, of the Executive.

Ballantine has laid out a case and controversy with Sullivan here — whether her own conduct amounted to misconduct. Sullivan’s amicus, John Gleeson, may well be able to use that to argue that the many conflicting statements from DOJ make it clear there is no authoritative view from the Executive, because it can’t agree with itself — its prosecutor can’t even agree with herself — on a week to week basis.

And if there is no one authoritative authoritative view of the Executive, Sullivan will have a much easier time arguing all this overcomes any presumption of regularity.

Defendant Barr’s Flip-Flops Finally Attract Press Attention

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Bill Barr’s sloppy lying may finally be catching up to him.

The press should have stopped treating the Attorney General as credible after he obviously lied about the contents of the Mueller Report. But he continued to be accorded the courtesy of the office, through changing DOJ stories about his involvement in Trump’s effort to coerce a quid pro quo in Ukraine (and the impeachment that followed) and his cover stories to explain unprecedented interference in the prosecution of Trump flunkies.

But over the course of the last week, the press has gone from reporting anonymous DOJ scoops, to noting how later DOJ claims conflicted with that scoop, to outright debunking of Barr (even if they’re not yet treating him as the consistent liar they recognize Trump to be).

On Tuesday, WaPo had a scoop citing an anonymous DOJ official stating that Barr personally ordered the attack on protestors, perhaps an effort to shift the focus from Trump.

Attorney General William P. Barr personally ordered law enforcement officials to clear the streets around Lafayette Square just before President Trump spoke Monday, a Justice Department official said, a directive that prompted a show of aggression against a crowd of largely peaceful protesters, drawing widespread condemnation.

The claim took the heat off of President Trump.

In a presser on Thursday, Barr offered a more elaborate explanation. He claimed he made the decision to move the perimeter around the White House on Trump’s orders — to protect the White House from protestors — before the arrival of protestors on Monday.

On Monday, the president asked me to coordinate the various federal law enforcement agencies, not only the multiple department of justice agencies, but also other agencies such as those in the Department of Homeland Security. So we had a coordinated response and worked with the National Guard and also with the DC police. That morning, we decided that we needed more of a buffer to protect the White House and to protect our agents and secret service personnel who could be reached by projectiles from H Street. I made the decision that we would try to move our perimeter northward by a block to provide this additional protection. And later at 2:00 on Monday, I met with all the various law enforcement agencies and we set our tactical plan. And that plan involve moving our perimeter a block North to I Street. It was our hope to be able to do that relatively quickly before many demonstrators appeared that day.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

In the same presser, he claimed that he saw “instigators” before the move to push them back, thereby claiming both advance planning but also an imminent threat.

I think one of the difficulties is that while there are peaceful demonstrators and participants in these protests, the instigators, those committed to violence, basically shield themselves by going among them and carrying out acts of violence. I saw the projectiles on Monday when I went to Lafayette Park to look at the situation. And as one of the officials said, he pointed out various knots of people where the projectiles were coming from and we could see… and it was a lot of demonstrators. And it’s hard to know exactly where they’re coming from. Frequently, these things are thrown from the rear of the demonstration, but we could not continue to protect the federal property involved and protect the safety of our agents with such a tight perimeter. And so our object was to move it out by one block. Next question, please.

On Friday, however, Barr started backing away from responsibility. That day, the AP reported that Barr had not given the tactical move to attack the protestors. Instead, some unnamed person who could not be directly tied to a Barr (and therefore a Trump) command did that.

On Friday, Barr told the AP that both he and U.S. Park Police were in agreement on the need to push back the security perimeter. He said he attended a meeting around 2 p.m. Monday with several other law enforcement officials, including Metropolitan Police Chief Peter Newsham, where they looked at a map and decided on a dividing line. Under the plan, the protesters would be moved away from Lafayette Park and federal law enforcement officials and members of the National Guard would maintain the perimeter line, Barr said.

[snip]

Barr said it was a Park Police tactical commander — an official he never spoke to — who gave the order for the law enforcement agencies to move in and clear the protesters.

“I’m not involved in giving tactical commands like that,” he said. “I was frustrated and I was also worried that as the crowd grew, it was going to be harder and harder to do. So my attitude was get it done, but I didn’t say, ‘Go do it.’”

Barr insisted there was no connection between the heavy-handed crackdown on the protesters and Trump’s walk soon after to St. John’s Church.

Finally, on Sunday, Margaret Brennan interviewed Barr on Face the Nation, one of the first times during this tenure as AG Barr has sat for an interview with someone who was neither (like Pete Williams or Pierre Thomas) someone he knew from the Poppy days, nor (like Catherine Herridge) a right wing stenographer. Brennan challenged a lot of these inconsistencies, leading to Barr to make a comment — that pepper balls are not tear gas — that has been widely mocked since.

MARGARET BRENNAN: I want to ask you about some of the events of the week. On Monday, Lafayette Park was cleared of protesters. You’ve spoken about this. The federal agents who were there report up to you. Did you think it was appropriate for them to use smoke bombs, tear gas, pepper balls, projectiles at what appeared to be peaceful protesters?

BARR: They were not peaceful protesters. And that’s one of the big lies that the- the media is- seems to be perpetuating at this point.

MARGARET BRENNAN: Three of my CBS colleagues were there. We talked to them.

BARR: Yeah.

MARGARET BRENNAN: They did not hear warnings. They did not see protesters–

BARR: There were three warnings.

MARGARET BRENNAN:–throwing anything.

BARR: There were three warnings given. But let’s get back to why we took that action. On Friday, Saturday and Sunday, OK, there were violent riots in- at Lafayette Park where the park police were under constant attack at the- behind their bike rack fences. On Sunday, things reached a crescendo. The officers were pummeled with bricks. Crowbars were used to pry up the pavers at the park and they were hurled at police. There were fires set in not only St. John’s Church, but a historic building at Lafayette was burned down.

MARGARET BRENNAN: These were things that looters did.

BARR: Not looters, these were- these were the- the violent rioters who were- dominated Lafayette Park.

MARGARET BRENNAN: But what I’m asking about–

BARR: They broke into the Treasury Department,–

MARGARET BRENNAN: –on Monday when it was a peaceful protest.

BARR: I’m going to- let me get to this, because this has been totally obscured by the media. They broke into the Treasury Department, and they were injuring police. That night,–

MARGARET BRENNAN: Sunday night?

BARR: Sunday night, the park police prepared a plan to clear H Street and put a- a larger perimeter around the White House so they could build a more permanent fence on Lafayette.

MARGARET BRENNAN: This is something you approved on Sunday night?

BARR: No. The park police on their own on- on Sunday night determined this was the proper approach. When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette Park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies, including the Metropolitan Police at 2:00 p.m. that day. The effort was to move the perimeter one block, and it had to be done when we had enough people in place to achieve that. And that decision, as I say, was communicated to the police at 2:00 p.m.. The operation was run by the park police. The park police was facing what they considered to be a very rowdy and non-compliant crowd. And there were projectiles being hurled at the police. And at that point, it was not to respond–

MARGARET BRENNAN: On Monday, you’re saying there were projectiles–

BARR: On Monday, yes there were.

MARGARET BRENNAN: As I’m saying, three of my colleagues were there.

BARR: Yeah.

MARGARET BRENNAN: They did not see projectiles being thrown–

BARR: I was there.

MARGARET BRENNAN: –when that happened.

BARR: I was there. They were thrown. I saw them thrown.

MARGARET BRENNAN: And you believe that what the police did using tear gas and projectiles was appropriate?

BARR: Here’s- here’s what the media is missing. This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.

MARGARET BRENNAN: And the methods they used you think were appropriate, is that what you’re saying?

BARR: When they met resistance, yes. They announced three times. They didn’t move. By the way, there was no tear gas used. The tear gas was used Sunday when they had to clear H Street to allow the fire department to come in to save St. John’s Church. That’s when tear gas was used.

MARGARET BRENNAN: There were chemical irritants the park police has said–

BARR: No, there were not chemical irritants. Pepper spray is not a chemical irritant.

It’s not chemical.

MARGARET BRENNAN: Pepper spray, you’re saying is what was used–

BARR: Pepper balls. Pepper balls.

MARGARET BRENNAN: Right, and you believe that was appropriate. What I want to show you is what a lot of people at home who were watching this on television saw and their perception of events. So while the president says that he appreciates peaceful protest, around the same time, this crowd–

BARR: Well, six minutes- six minutes difference–

MARGARET BRENNAN: Right, around same time the area is being cleared of what appear to be peaceful protesters using some force. And after the speech is finished, the president walks out of the White House to the same area where the protesters had been and stands for photo op in front of the church where the protesters had been. These events look very connected to people at home. In an environment where the broader debate is about heavy handed use of force in law enforcement, was that the right message for Americans to be receiving?

Along the way, however, Barr’s explanation got more and more inconsistent.

What started out as an apparent effort to shield the President from direct responsibility for attacking protestors to clear way for his photo op became, by the end of the week, an effort to create a legal justification — protestors throwing things — while still distancing the time of the order from the photo op.

That’s a conflict Phil Bump highlighted in a particularly good job of shredding Barr’s statements, relying on an earlier detailed timeline he did. In addition to mocking Barr’s claim that pepper balls are not tear gas because they’re naturally occurring, Bump shows how Barr’s statements yesterday conflict with the justification for using tear gas.

“Here’s what the media is missing,” Barr said to Brennan on Sunday. “This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.”

The problem with that framing is twofold.

First, it contradicts that same statement from the Park Police that serves as the backbone of the tear-gas defense. In that statement, the Park Police claim that protesters “began throwing projectiles including bricks, frozen water bottles and caustic liquids” at 6:33 p.m. This prompted the effort to clear the square to “curtail the violence that was underway.” There’s nothing about this being a planned operation.

What’s more, Barr himself made the claim to Brennan that the protesters were being violent at the time that the effort to remove them began.

“Three of my colleagues were there,” Brennan told him. “They did not see projectiles being thrown.”

“I was there,” Barr replied. “They were thrown. I saw them thrown.”

The timing of Barr’s visit is important, and we’ll get to it in a bit. But suffice it to say that video evidence from the period not only doesn’t back up the Park Police claim, it also doesn’t show Barr reacting to any such events.

It has been rare, possibly unprecedented, for the press to track Barr’s obvious lies this closely, even in the case of legal cases (like the Flynn prosecution) where Barr’s flip-flops are docketed.

I think a lot of things explain the unusual attention to Barr’s flip-flops. The assault on protestors and Trump’s tone-deaf photo op was so pathetic, the White House went into damage control. And because there were so many journalists at Lafayette Park, there were a slew of witnesses attesting to inconsistencies and inaccuracies in the official version of the story (starting with the Park Police’s flip-flops on the tear gas). Now, Barr is in a position of accusing three CBS reporters and at least one WaPo reporter, whose versions of this story differ dramatically from his own, of lying: His word against the reports of outside observers who have film to backup those reports.

But Barr’s changing excuses may also be partly explained by one other thing.

As noted, Barr’s first instinct seemed to be to distance the President from the order targeting peaceful protestors, and as he has repeatedly done, he took responsibilty (and Kayleigh McEnany happily gave him responsibility). But that created new problems: including why the Attorney General was ordering cops, many of them not within his chain of command, but more importantly, why Trump —  through orders given to Barr who executed those orders by issuing orders of his own — had responded to First Amendment protected activities with a violent assault.

The stakes of the answers to that question may have gone up with the filing of a lawsuit captioned, “Black Lives Matter v. Donald Trump:” Bill Barr is a named defendant.

Defendant William Barr is the Attorney General of the United States. He is sued in his individual and official capacity. He personally issued the order that resulted in the unlawful actions complained of in this lawsuit.

[snip]

At approximately 6:08 pm, Defendant Barr entered Lafayette Square.

At 6:10 pm, Defendant Barr was behind the law enforcement officials in Lafayette Square pointing north towards St. John’s Church. The Department of Justice subsequently acknowledged that Defendant Barr personally ordered that Lafayette Square be cleared.

Let me be clear: because this suit focuses on Bivens complaints about the violation of Constitutional rights, it probably won’t succeed in terms of the damages requested. Recent proceedings have largely gutted Bivens.

But what the suit does do is trace a link between Barr’s actions and the complaints of the plaintiffs (who include a 9-year old boy, a Navy veteran, and a former Eagle Scout). It does so through some of the same details that Barr is now trying to obfuscate.

And what the lawsuit may do is force a way to make the events that Barr is trying to cover up public.

Barr’s lies are consistent with all his other lies. He makes broad claims to power — not authority — and then he keeps changing the story as needed to try to give his claims retroactive legal cover.

This time, he may be forced to do so in court.

Update: WaPo did an unbelievably detailed piece showing no evidence for Park Police claims of dangerous projectiles, and making evident how the clearance of the Square led to the photo op.

The Fog of Protest

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“We could wrap this up right now,” a police officer said over the scanner traffic that I was listening to as I walked along Mission Street in San Francisco. It was late on the night of June 3rd, and I had joined a protest group walking south on Valencia Street in San Francisco’s Mission District. The group was loud and a little rowdy, but not destructive. 30-something people trailed down to 20-something people — counts are always a little abstract in a group like this. We made a couple turns and walked back north, along Mission. “We could wrap this up…” the officer had said, and then the radio chatter moved smoothly onto the tactical part.

Motorcycle police trailing the protest through the Mission.

I was listening to the police scanner while walking with the group. When I do this, I often notice a disconnect between the police and the people on the ground, and sometimes between the police and the police on the ground. In this case, there was some panicky talk of the protestors building a barricade and setting it on fire after we turned onto Mission Street. I spun around to figure out what I’d missed. This didn’t seem like that kind of protest. Loud and rude for sure, we were hours after curfew and this was the proud hood crowd more than the carefully-stenciled-signs-of-unity crowd. But, not violent, and not even vandalous. From looking over the street behind me, I couldn’t see what the police were talking about. I did spot a newly-emptied trashcan on the sidewalk, but not in the street. No one was near it, much less ready to set fire to the mess. I’m not a fan of littering, but I’ve watched people build burning barricades across streets, mostly in France, and this wasn’t that. This was someone kicking the trash over.

The reason for kettling and arresting this group given by an officer on the scanner was the curfew violation. It was late, and there were “about 25” of us, an officer said over the radio. It gave me a sense that the police were done and wanted to leave. “We could wrap this up right now…” and they laid out a plan to bring in officers on both sides, close in, and arrest everyone. I ducked onto a side street and circled around to different sides of the area now blocked off by police, and tried to take pictures of the arrests. (I did not get many, Julian Mark of Mission Local got the best images while being detained.)

Some of the police and one arrestee.

These three things, curfew, the hour, and something about fire, became conflated later into a nebulous story about lighter fluid, when the cops were tired of following 25ish shouty people cussing at them, but not doing much else.

Police and arrestees line up for a police wagon.

None of this was extraordinary. Whatever problems are inherent to a protest situation, they are deeply compounded by police forces, and, to a lesser degree, protestors, all being very sure about what the other side is doing and thinking without having much real knowledge or insight.

I’m willing to say after more than a decade of doing this work that those arrests took place because the police were tired and wanted to go back to the station or home. But to get there, they really had to work up some other reason, whether they were aware of it or not. Police are mere humans, and subject to mere human follies. Protestors are too, but everyone knows that. Protestors look like a mess, even when they’re not. The police are the ones who dress alike and larp¹ being Perfectly Coordinated Machines of Order, instead of tired humans who just need to pee, damnit. This underlying humanity is scant comfort for those being arrested, maybe even less so for the one protestor that night who was taken away in an ambulance. When you’re supposed to be the perfect passionless embodiment of state violence, but you’re just a petty and tired as anyone, you can end up being a right bastard without knowing how, or that, you got there. This is what lies behind the sentiment ACAB: All Cops Are Bastards. It’s not a personal statement; it’s just what happens when role play gets out of hand, and in our society, the role play is always out of hand.

The other human bias police often suffer from in these chaotic scenes is that vigilance for the extraordinary generally leads humans to perceiving extraordinary things, whether they are there or not. Back on June 1st, when San Francisco was just getting started on its larger and more raucous protests, I was tracking people around the SOMA District (South of Market, a major dividing street in the city) protesting police violence. Scanner chatter was high, and the largest group was at the base of the Salesforce Tower, the tallest (and newest) building on the San Francisco skyline. There was talk of crowbars and vandalism, and the back-and-forth was working itself up into urgency. I started to run towards the tower, a few blocks away, because I know where this kind of talk usually leads. But another officer got on the radio. He was on the scene, and things were fine. “This is a peaceful protest,” he said repeatedly. “Don’t antagonize them.” He talked the chatter down.

The Salesforce building with minimal grafitti and no damage.

“Fuck 12” (12 means police) in spray paint was the only evidence of the protests. I’m sure it’s been cleaned up by now.

I stopped running, which I appreciated, and made my way over towards the building more slowly, taking some pictures along the way. The chatter became tense a few more times, but the original officer kept talking them down. “They’re peaceful,” he said repeatedly, and something like, “We have them,” as in he and the other officers on the scene were able to handle it. Another officer said there was vandalism, and the original officer said “Very minor” and again, “Don’t antagonize them!” He expressed the tension of someone who was talking his friends out of doing something stupid, which as it turns out, he was. In the end the Salesforce Tower was fine, and undoubtedly better than it would have been if the police had clashed with thousands of protestors at its front door. Cooler heads prevailed.

We who attend or cover protests have a saying which we often don’t say aloud because of the accusation of bias: “It ain’t a riot ’til the riot cops get there.” This isn’t universal, but it’s more common than most people think, including the police. Even well-meaning cops are in a system where they’re looking for something to do violence on, and looking for things hard enough makes humans tend to see what they’re looking for. It’s hard to understand what’s happening in a mass of angry people, but it’s violence much less often than you’d think.

I have seen actual riots that are riots from their very first moments, torrents of anger and grief that become a violent backlash on the physicality of society itself. But I’ve never seen a protest get much beyond turning over trashcans and spray painting things without police provocation. But that form of escalation is so baked-in to the dance of police and protestors now, I can’t imagine police can see it the way I do. The police look for trouble, they invariably find (and create) it, therefore they know there’s always trouble to look for.

Sometimes cooler heads prevail, sometimes there’s proportional responses, or no responses, and the crowd moves on without much damage, or the people drift off and go home tired at the end of a long day of exercising their First Amendment. On those occasions, protestors are often praised as peaceful, but not by me. I expect most protestors (except maybe the French) to be largely peaceful by default.

Instead, I’ve come to praise the cops more over the years, though it’s damning with faint praise. I praise them for not crashing hard into a crowd because a kid got out a can of spray paint. I praise them for just letting people walk it out late into the night, until everyone gets to go home and sleep. I praise them for not jumping at shadows and petty slights, for not getting frightened in the fog of protest and turning violent. Good cop, don’t hit anyone.

Honestly, the fog of war effect and confirmation bias are not just police problems, they’re human problems. They are the mistakes Homo Sapiens always make, and everyone including me, and you, would likely have the same errors of perception if we were suddenly part of a police force. As long as the police and people are other from each other, human biases towards the other will defeat our unity and progress.

The most heartening thing I’ve seen is police who took a knee, Kaepernick-style, against police violence. But I don’t believe police violence can be meaningfully curbed until the police are no longer a separate force from their communities, both sides lost in fogs of human bias.

  1. Larp stands for live action role play, a style of gaming involving dressing up and playing roles in a group.

My work for Emptywheel is supported by my wonderful patrons on Patreon. You can find out more, and support my work, at Patreon. Thanks to Ryan Singel.

 

When Billy Barr Called a Press Conference to Target Non-Terrorists Rather than Brag about the Right Wing Terrorists FBI Caught

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What if the FBI succeeded in thwarting a right wing terrorist attack but rather than bragging about that success, instead redoubled its efforts to target peaceful protestors as terrorists?

That’s what happened this week.

On Tuesday, the FBI terrorism agents arrested three adherents of the “Boogaloo” movement, a group of extremists planning a civil war. All have military experience and one, Andrew Lynam, is currently in the Army Reserve. At a ReOpen Nevada protest held in April, at which they were all heavily armed, Lynam told a person who’d go on to become an FBI informant that, “their group was not for joking around and that it was for people who wanted to violently overthrow the United States government.” One of them planned to use the cover of the George Floyd protests to conduct attacks and sow panic.

CHS stated that PARSHALL and LOOMIS’s idea behind the explosion [targeting Lake Mead] was to hopefully create civil unrest and rioting throughout Las Vegas. They wanted to use the momentum of the George Floyd death in police custody in the City of Minneapolis to hopefully stir enough confusion and excitement, that others see the two explosions and police presence and begin to riot in the streets out of anger.

They were arrested on the way to a Black Lives Matter protest with the makings of Molotov cocktails and an AR-15 in their vehicles.

Normally when the FBI thwarts a terrorism attack in process, they hold a big press conference to brag about it. As of this morning, however, neither DOJ nor FBI have posted the arrest on their national news websites (the Nevada US Attorney’s Office has).

Instead of boasting about the plotters arrested as terrorists, yesterday Billy Barr, FBI Director Christopher Wray, Acting DEA Administrator (and Barr flunky) Timothy Shea, and the head of ATF had a press conference that seemed designed to provide post hoc and advance justification for abusive steps Barr has and plans to authorize. (The Daily Beast also remarked on their silence about the Boogaloo arrests, and noted that that was one of the only arrests of ideologically motivated groups that have taken place during the uprising.)

The specifics of their statements, given the legal framework around national security investigations and known and presumptive OLC memos authorizing such things, deserves more attention.

The culprit is Antifa, not (also) the right-wingers carrying guns

In questions, for example, Pierre Thomas asked Bill Barr about the Boogaloo bust. Barr responded by focusing on Antifa.

And that’s why in my prepared statement, I specifically said, in addition to Antifa and other extremist groups like Antifa, there were a variety of groups and people of a variety of ideological persuasion. So I did make that point. I’m not going to get too specific, but the intelligence being collected by our US attorney’s office is particularly integrated by the FBI from multiple different sources is building up. There are some specific cases against individuals, some Antifa related.

Chris Wray also responded to the question about Boogaloo by emphasizing that Antifa was a terrorist organization.

Sure. Let me say first, as I’ve said for quite some time and including even my first few months in job, we, the FBI have quite a number of ongoing investigations of violent anarchist extremists, including those motivated by an Antifa or Antifa like ideology. And we categorize and treat those as domestic terrorism investigations and are actively pursuing them through our joint terrorism task forces.

This repeats comments both Wray and Barr made in their prepared speeches. Barr saidhe culprit here is “Antifa” and it is violent.

At some demonstrations, there are groups that exploit the opportunity to engage in looting.  And finally, at some demonstration, there are extremist agitators who are hijacking the protests to pursue their own separate and violent agenda.

We have evidence that Antifa and other similar extremist groups, as well as actors of a variety of different political persuasions, have been involved in instigating and participating in the violent activity.

Wray said the same. The culprits are “Antifa” and other agitators.

We’re seeing people who are exploiting this situation to pursue violent, extremist agendas—anarchists like Antifa and other agitators. These individuals have set out to sow discord and upheaval, rather than join in the righteous pursuit of equality and justice. And by driving us apart, they are undermining the urgent work and constructive engagement of all those who are trying to bring us together—our community and religious leaders, our elected officials, law enforcement, and citizens alike.

There is a foreign nexus that will allow us to use transnational tools

In his prepared speech, Barr claimed that there are foreign actors involved.

We are also seeing foreign actors playing all sides to exacerbate the violence.

It’s true that the Russians who helped Trump get elected are sowing dissension but that would be dealt separately from a press conference if Barr weren’t trying to use the foreign nexus to access national security tools he says can’t be used with Trump supporters.

Barr returned to this later, and specifically said they maybe can’t offer proof.

I may ask Chris if he cares to provide a little more detail. I’m not sure how much detail we want to get into, but people shouldn’t think that countries that are hostile to the United States, that their efforts to influence the US or weaken the US or sow discord in the US is something that comes and goes with the election cycle. It is constant. And they are constantly trying to sow discord among our people, and there’s a lot of disinformation that circulates that way. And I believe that we have evidence that some of the foreign hackers and groups that are associated with foreign governments are focusing in on this particular situation we have here and trying to exacerbate it in every way they can. Unless Chris has something to add, I can turn it over to … Yeah.

By suggesting there’s a foreign nexus, Barr is laying the groundwork to claim to need tools only available with that foreign nexus (something that has been done with past protest movements).

Every store that gets raided gives federal jurisdiction

After making it clear that Billy Barr intends to target Antifa as the culprit here, and use national security tools to do so, Barr and his flunkies then laid out how they think they have national jurisdiction.

Barr asserted his own jurisdiction based off the federal buildings he said that had been targeted (and because protestors were in front of the White House).

Many of the buildings, as you know, and facilities here, and the monuments are the responsibility of the federal government and the proceedings and process of the federal government take place here. And so when you have a large scale civil disturbance that is damaging federal property, threatening federal property, threatening federal law enforcement officers, threatening the officials in government and their offices and our great monuments, it is the responsibility of the federal government to render that protection.

Barr described how that Federal jurisdiction — and his invocation of the word “riot” — allows them to lead the response via what is the intelligence-driven network used against terrorists.

The Justice Department is also working closely with our state and local partners to address violent riots around the country.  Our federal law enforcement efforts are focused on the violent instigators.

Through the FBI, U.S. Attorney’s Offices, component field offices, and state and local law enforcement, we are receiving real-time intelligence, and we have deployed resources to quell outbreaks of violence in several places.

While Wray didn’t use the word “riot” he described the centrality of the Joint Terrorism Task Force to the Federal response.

We’re making sure that we’re tightly lashed up with our state, local, and federal law enforcement partners across the country, by standing up 24-hour command posts in all of our 56 field offices. We have directed our 200 Joint Terrorism Task Forces across the country to assist local law enforcement with apprehending and charging violent agitators who are hijacking peaceful protests.

Timothy Shea invented an excuse not used in his request to get involved: the DEA has jurisdiction because some people stole controlled substances from pharmacies, possibly after they had been looted.

In addition, DEA continues to investigate drug related crimes, including the theft of controlled substances from looted pharmacies, which is happening here in the District of Columbia and across the country. In the national capital region, approximately or over 150 DEA special agents have partnered with the metropolitan police department at their request and the National Guard to enforce security posts and maintain a secure perimeter in designated areas.

Acting ATF Director Regina Lombardo made a similar claim to jurisdiction (though theirs legitimately extends to explosives activity): ATF is investigating firearm dealer thefts.

 ATF has also responded to 73 federal firearms licensed dealers. We have identified many suspects that made arrest and recovered many firearms already.

When it came to Bureau of Prisons Director Michael Carvajal, the only real excuse he offered was that Billy Barr requested BOP get involved. Though he did offer the bogus claim that BOP’s riot team is “experienced in … conflict resolution.”

The Attorney General asked the BOP to request and assist other law enforcement agencies in maintaining order and peace in the district of Columbia. BOP crisis management teams are highly trained to deal with various types of emergency situations, including crowd control and civil disturbances. They are experienced in confrontational avoidance and conflict resolution.

Barr offered even more transparently bullshit excuses for inviting in the kinds of people who put down riots among violent felons, claiming that there weren’t enough Marshals to go around, and that no one else in the US Government (like Park Police) know how to deal with the kinds of crowds they deal with all the time. Barr also provided a totally bullshit excuse for why the riot teams weren’t wearing identification.

Let me just add that the Bureau of Prisons SORT teams are used frequently for emergency response and emergency situations, in either civil disturbances or hurricanes or other things like that. They’re highly trained. They’re highly trained units. And in fact, in the Department of Justice, we do not really have large numbers of units that are trained to deal with civil disturbances. I know a lot of people may be looking back on history, think we can call on hundreds and hundreds and hundreds of US Marshals, and that’s simply not the case. Our marshals’ response for us is approximately a hundred US Marshals. And so, historically when there have been emergencies where we have to respond with people who do have experience in these kinds of emergencies that are highly trained people, we use what are called SORT teams, response teams from the Bureau of Prisons.

And I could see a number … Now, in the federal system, we don’t wear badges with our name. I mean, the agents don’t wear badges and their names and stuff like that, which many civilian police agents, I mean, non-federal police agencies, do. And I could understand why some of these individuals simply wouldn’t want to talk to people about who they are, if that were, if that in fact was the case.

The photo op was not a photo op

But Barr’s bullshit explanation for why he sicced riot teams on peaceful protestors was still more credible than the excuse he offered for violently attacking peaceful protestors, including priests at a church serving them, for a photo op. He had decided (using the jurisdiction assumed by claiming everything is a federal building) to expand the perimeter around the White House.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

And that had nothing at all whatsoever with the President’s desire for a photo op and he just happened to be in the photo op that had nothing to do with the violent attack on peaceful protestors and the exploitation of a house of worship.

Obviously, my interest was to carry out the law enforcement functions of the federal government and to protect federal facilities and federal personnel, and also to address the rioting that was interfering with the government’s function. And that was what we were doing. I think the president is the head of the executive branch and the chief executive of the nation, and should be able to walk outside the White House and walk across the street to the church of presidents. I don’t necessarily view that as a political act. I think it was entirely-I don’t necessarily view that as a political act. I think it was entirely appropriate for him to do. I did not know that he was going to do that until later in the day after our plans were well underway to move the perimeter, so there was no correlation between our tactical plan of moving the perimeter out by one block and the president’s going over to the church. The president asked members of his cabinet to go over there with him, the two that were present, and I think it was appropriate for us to go over with him.

Let me be clear. These are — most of them — transparently bullshit excuses. Unfortunately, the way our intersecting justifications for using national security authorities work, such transparently bullshit excuses provide the legal cover that the Federal government has long used, especially when it comes to spying on brown people.

To be clear, this is not new. It’s just incredibly ham-handed and pretty transparently done after the fact, after the press already identified Barr’s abuses. And I assume OLC only now is writing memos to match the transparently bogus claims made in yesterday’s presser.

If the Steele Dossier Is Disinformation, Republicans Have Become Willful Participants in the Operation

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I was among the first people to argue that the Steele dossier had been planted either partially or predominantly with Russian disinformation.

Republicans never consider the implications if the Steele dossier is disinformation

I first suggested the dossier reflected a feedback loop — magnifying both the Alfa Bank and the Michael Cohen allegations — in March 2017 (there’s increasing evidence the Alfa Bank story was disinformation, too, which I’ve also argued). In November 2017, I showed evidence suggesting the Democrats were complacent in response to their discovery of the hack in May and June 2016, in part because the dossier falsely led them to believe that the Russians hadn’t accomplished such hacks and that the kompromat Russians had on Hillary consisted of old FSB intercepts of her, not newly stolen emails. In January 2018, I showed how the dossier would be useful to Russia, partly to thwart and partly to discredit the investigation into their operation. In August 2018, I laid out six specific false claims made in the dossier that would have led Democrats or the FBI to take action counter to their own interests:

  • Russians hadn’t had success hacking targets like Hillary
  • Russians were planning to leak dated FSB intercepts rather than recent stolen emails
  • Misattribution of both what the social media campaign included and who did it, blaming Webzilla rather than Internet Research Agency
  • Carter Page, not George Papadopoulos or Roger Stone, was one key focus of Russian outreach
  • Russia had grown to regret the operation in August, when instead they were planning the next phase
  • Michael Cohen was covering up Trump’s funding of the hackers rather than Trump’s sexual scandals and an improbably lucrative business deal

Also in August 2018, I laid out the specific risk that Oleg Deripaska, who had influence over both Christopher Steele and Paul Manafort at the time, could have been manipulating both sides. In January, I wrote a much more detailed post that, in part, showed that that’s what Deripaska seems to have done. The post also showed how any disinformation in the dossier succeeded in confusing and discrediting the most experienced investigators into Russian organized crime (both Steele and at both DOJ and FBI), as well as harming Democrats.

Long after I started laying out the implications of the possibility that the dossier was disinformation, Republicans came to believe that was the case. Unsurprisingly, however, that’s all they’ve done, point to Russia’s success at feeding the FBI and Democrats disinformation (just as Russia got Don Jr, Roger Stone, and Mike Flynn to embrace and magnify other disinformation), as if that in some way uniquely damns Democrats. When, earlier this year, Chuck Grassley got footnotes declassified providing further evidence that the dossier was disinformation, Republicans just kept squawking that it was, without thinking through the implications of it.

Because Grassley and others raised the issue in the Rod Rosenstein hearing yesterday (and because I’m preparing a post on that hearing), I’m going back to look closely at three footnotes reflecting Russian knowledge of the dossier project. As with all my other posts criticizing the dossier, nothing here is meant to excuse the Democrats’ refusal to come clean on it, or the ham-handed way the project was managed in the first place. But the footnotes don’t actually say what the Republicans think they do, and in some ways they increase the import of Paul Manafort’s interactions with Deripaska during the campaign.

The three references to June 2017 reporting on mid-2016 knowledge of the dossier

There were actually three mentions of June 2017 reporting related to the Steele dossier. I’ve included the context from the IG Report and footnotes below, but summarized, they are:

  • Footnote 211: An intelligence report from June 2017 said someone associated with Oleg Deripaska was or may have been aware of Steele’s work by early July 2016.
  • Footnote 342: An early June 2017 USIC report said two people affiliated with Russian intelligence were aware of Steele’s work in “early 2016” (this is either a typo or inaccurate, as the earliest anyone could have known would have been May 2016, and more likely June 2016).
  • Footnote 347: The FBI received reporting in early June 2017 that must come from 702 coverage revealing a bunch of details about a sub-source, including that the person had contact with the Presidential Administration in June/July 2016 and that he or she was strongly pro-Hillary.

I’ve highlighted the temporal references in the longer passages below, to make this more clear, but it’s worth noting that all three of these references are to intelligence reports dated June 2017. Once you account for the error in footnote 342 (since Steele’s election reporting didn’t start until May 2016, awareness of it most post-date that), all three of the reports reflect some time to Steele’s project in roughly the same time frame: May to early July 2016.

So it’s possible that some if not all three of these reports are the same report. All the more so given that two key Deripaska deputies, Konstantin Kilimnik and Victor Boyarkin, have been publicly identified as having links to Russian intelligence.

The Mueller Report describes evidence–including but not limited to witness interviews–that Kilimnik has ties to GRU.

Manafort told the Office that he did not believe Kilimnik was working as a Russian “spy.”859 The FBI, however, assesses that Kilimnik has ties to Russian intelligence.860 Several pieces of the Office’s evidence-including witness interviews and emails obtained through court-authorized search warrants-support that assessment.

It makes no such claims about Boyarkin, though it does note that he served as defense attaché in the past, the kind of job often used for official cover. But when Treasury sanctioned Boyarkin in December 2018 along with all the people who implemented the Russian interference campaign in 2016, it identified Boyarkin as a former GRU officer.

Victor Alekseyevich Boyarkin (Boyarkin) is a former GRU officer who reports directly to Deripaska and has led business negotiations on Deripaska’s behalf.  Deripaska and Boyarkin were involved in providing Russian financial support to a Montenegrin political party ahead of Montenegro’s 2016 elections.  Boyarkin was designated pursuant to Executive Orders (E.O.) 13661 and 13662 for having acted or purported to act for or on behalf of, directly or indirectly, Oleg Deripaska, who was previously designated pursuant to E.O. 13661 for having acted or purported to act for or on behalf of a senior Russian government official, as well as pursuant to E.O. 13662 for operating in the energy sector of the Russian Federation economy, as well as with entities 50 percent or more owned by designated persons.

The government refers to both of these guys as GRU-linked publicly. So if either showed up in a classified intelligence report, that affiliation would likely be more explicit. Both Kilimnik and Boyarkin were the target of retroactive surveillance as part of the investigation in Paul Manafort. And because they were interacting with Manafort, it would be likely one or both of them would learn of any issues involving Manafort, like the dossier, if such information came to Deripaska. To be clear, it is speculation that one of these men was the person associated with Deripaska who got wind of the dossier, but the description would fit both, both were under surveillance, and both would have a reason to be informed of the dossier if feeding disinformation to it was part of a larger project.

If either of them were one of the people named in the intelligence reports, it would mean Deripaska’s actions towards Manafort during the election would have been conducted by someone who knew of the Steele dossier. It would also mean that Boyarkin’s outreach (via Kilimnik) to Manafort in July 2016 would have come just after (this intelligence report reflects) learning of the dossier.

For example, in response to a July 7, 2016, email from a Ukrainian reporter about Manafort’ s failed Deripaska-backed investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest.

Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

It would also mean that when Manafort traveled to Madrid in early January 2017 he may have learned whatever the Deripaska people knew of the disinformation effort.

Manafort’ s activities in early 2017 included meetings relating to Ukraine and Russia. The first meeting, which took place in Madrid, Spain in January 2017, was with Georgiy Oganov. Oganov, who had previously worked at the Russian Embassy in the United States, was a senior executive at a Deripaska company and was believed to report directly to Deripaska.940 Manafort initially denied attending the meeting. When he later acknowledged it, he claimed that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.941 Other evidence, however, provides reason to doubt Manafort’s statement that the sole topic of the meeting was the Pericles lawsuit. In particular, text messages to Manafort from a number associated with Kilimnik suggest that Kilimnik and Boyarkin-not Manafort’s counsel-had arranged the meeting between Manafort and Oganov.942 Kilimnik’s message states that the meeting was supposed to be “not about money or Pericles” but instead “about recreating [the] old friendship”-ostensibly between Manafort and Deripaska-“and talking about global politics.”943

According to an old Ken Vogel story, Manafort called Reince Priebus the day the dossier came out — at a time when he’d still be in Madrid with Oganov (he returned on January 12) and suggested he discredit the Russian investigation by focusing on the Steele dossier.

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a personclose to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative.

This would have been one of the few communications Manafort had with anyone in the Trump Administration (per court records, he had no direct communication after the inauguration, though he did use Sean Hannity as a back channel after that).

From that Manafort call to the present, the push to discredit the Russian investigation by treating the dossier as the Russian investigation and discrediting the former by unpacking the (admitted, egregious) problems in the latter has been the primary response to the Russian investigation. If Manafort was tipped to the fact that the dossier was full of baseless allegations because the Russians had put them there, it would mean the entire GOP effort since has been one of the intended goals of the disinformation.

Again, this rests on speculation, but if, in fact, Manafort’s interlocutors were the people identified as those who learned of the dossier, then everything the Republicans have been doing since would be part of that disinformation campaign.

210 and 211: Deripaska’s contemporaneous knowledge of the Steele dossier

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

342: On top of disinformation, FBI believed both Steele and his sources may have been boasting

According to the Supervisory Intel Analyst, the cause for the discrepancies between the election reporting and explanations later provided to the FBI by Steele’s Primary Sub-source and sub-sources about the reporting was difficult to discern and could be attributed to a number of factors. These included miscommunications between Steele and the Primary Sub-source, exaggerations or misrepresentations by Steele about the information he obtained, or misrepresentations by the Primary Sub-source and/or sub-sources when questioned by the FBI about the information they conveyed to Steele or the Primary Sub-source. 342

342 In late January 2017, a member of the Crossfire Hurricane team received information [redacted] that RIS [may have targeted Orbis; redacted] and research all publicly available information about it. [redacted] However, an early June 2017 USIC report indicated that two persons affiliated with RIS were aware of Steele’s election investigation in early 2016. The Supervisory Intel Analyst told us he was aware of these reports, but that he had no information as of June 2017 that Steele’s election reporting source network had been penetrated or compromised.

347: FBI used 702 collection to test Steele’s sub-sources

FBI documents reflect that another of Steele’s sub-sources who reviewed the election reporting told the FBI in August 2017 that whatever information in the Steele reports that was attributable to him/her had been “exaggerated” and that he/she did not recognize anything as originating specifically from him/her. 347

347 The FBI [received information in early June 2017 which revealed that, among other things, there were [redacted]] personal and business ties between the sub-source and Steele’s Primary Sub-source; contacts between the sub-source and an individual in the Russian Presidential Administration in June/July 2016; [redacted] and the sub‐source voicing strong support for candidate Clinton in the 2016 U.S. elections. The Supervisory Intel Analyst told us that the FBI did not have Section 702 coverage on any other Steele sub‐source.

Antifa Ain’t That

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You’ve seen the scary pictures of Antifa. You’ve seen them in images from the Battle of Seattle, Occupy Wallstreet, Oakland FTP protests, outside the G20, and many more moments where a reporter nervously says to camera “Things are getting out of hand at this protest.” They’re the omnipresent Left Boogyman, ANTIFA! They break windows! They menace police! They probably do other violent and bad things!

Or maybe you’ve seen them, who knows. Protestors don’t wear uniforms or make it clear who they carpooled with.

I have known many of society’s ne’er-do-wells: a myriad of drug dealers, Venice crack den regulars, Portland gutter punks, DC tweakers, straight edge punks with more scars than skin, body modders, tattoo fiends, seattle protestors, Food Not bombs, hackers, phreakers, freegans, and yes, quite a few Antifa, as well as Black Bloc. Let’s get Black Bloc out of the way first, since that’s usually who gets mistaken for Antifa.

Oakland Black Bloc, 2011

The initiation for Black Bloc is pretty complicated, follow along carefully. 1) You show up in all black with you face covered, then 2) You throwdown with the police line.

Congratulations, you’re Black Bloc.

There’s not a particular affiliation required, except that you don’t want to be identified while fighting with the police, and you’re there to throwdown. Plenty of Black Bloc attend protests just because they want to fight someone and fighting the police is safe in a weird way. It’s very exciting, you’re probably going to lose, you might help someone, and the police aren’t really going to get hurt. Also you’re probably going to engage is some light property damage, especially if the police take too long to form a line for you to fight. For a few of the Black Bloc I’ve met, it’s definitely the healthiest way they have to get out an excess of aggressive energy. Possibly they shouldn’t be like that, but they tend to be in the demographic that doesn’t have health insurance so I figure it’s a reasonable substitute for mental healthcare, which this country isn’t going to give them.

Antifa logo. Yes, I’ve even had this as a sticker on my laptop. So subversive! Much Terrorism.

Some of the people who do participate in Black Bloc are part of a wider political affiliation coming out of post-war Germany called Antifaschistische Aktion, shorted to Antifa. They arose to oppose Fascists, the real, sign-me-up-for-the-one-party-state kind, rather than the nudge-nudge-what’s-wrong-with-a-little-genocidal-nationalism kind we have now. Antifa is one of the myriad of responses to post-war politics that made it not cool to call yourself a fascist by the end of the 20th century.

It’s worthwhile to note that most Antifa don’t do Black Bloc. Black Bloc is the kind of thing most people age out of pretty quickly and their knees age out faster. But most people don’t age out of not liking Fascism, because Fascism is awful.

Antifa tends to be leftist, though it’s not very pure about it. Some of the Democratic Socialists of America people who roll with Antifa would look downright right-wing in much of Europe, because of their willingness to compromise in the American political context on things that would not be OK in most of Europe, like expensive education, universal healthcare, and access to guns.

I’ve chatted with Stalinist Tankies who are Antifa, and registered Democrats. The thing that brought them together was being vaguely left, vaguely anti-capitalist, and strongly disliking Fascism. The other thing they all had in common is their inability to organize anything larger than local groups. Most of the Antifa groups I’ve known met up in, and to some degree lived in, squats. In Europe, those were actual squats. In America, it’s usually some crap but large apartment the one with rich parents or a tech job was renting. Honestly, most of them are trying to be good people, and all of them are dealing with difficult personal lives, in my experience. Which – no hate. Having that in common is usually how I met them.

Antifa is the perfect foil for someone like Trump. They’re small, but not too small. They’re amorphus and misunderstood. They like to take up space and be loud. They are not actually dangerous at any meaningful scale. They do punch above their weight a lot of the time, but they’re not good at translating that into expanding their base. They’re not politically powerful, and no one speaks up for them. In fact they have so little power that they can’t defend themselves from organized rightwing slander. Some of them are misguided, some of them are incredibly well-read, quite a few of them end up as academics or working in NGOs. This makes sense, they don’t want to be part of the business world they see exploiting the global poor, but they do want to grow up and participate in society in meaningful ways.

It’s likely that Trump constructing them as The Enemy is the biggest boost American Antifa have had in years, and good on them. But make no mistake, Trump’s slander is meaningless drivel and Antifa are mostly fine, if bad at doing dishes. I mean, seriously, dudes. Do the damn dishes.

Wash Your Own Dishes Crimethinc Poster

Courtesy Crimethinc, and funny af.

Bad roommates often, fucked up kids sometimes, overly abstract academics, and window breakers, sure. But terrorists? Nah, that ain’t it.

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Trey Gowdy Argues There’s No Way Mike Flynn Would Read Anything Trey Gowdy Wrote

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If I had had to imagine an amicus brief from frothy right wingers to submit in the Mike Flynn case, one that Judge Emmet Sullivan could permit to prove he’s being equitable, but one that highlights what a shitshow the Mike Flynn argument is and therefore would likely backfire, it would look like this one. That Trey Gowdy —  who, while still in Congress, was the Republican most active in writing the House Intelligence Committee Report on Russia — signed on  along with Ken Starr and Margot Cleveland — just makes it even more special.

The amicus does three things.

It attempts to dismiss an argument the Watergate prosecutors made in an amicus brief, which argued that there’s a DC Circuit precedent clearly permitting a judge to reject a motion Rule 48 motion when the motion has no basis in fact.

But the D.C. Circuit has explained, in a decision that the Government fails to cite, that “considerations[] other than protection of [the] defendant . . . have been taken into account by courts” when evaluating consented-to dismissal motions under Rule 48(a). United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). Courts have exercised their authority under Rule 48(a) where “it appears that the assigned reason for the dismissal has no basis in fact.” Id. at 620– 21. Even when the Government represents that the evidence is not sufficient to warrant prosecution, courts have sought to “satisf[y]” themselves that there has been “a considered judgment” and “an application [for dismissal] made in good faith.” Id. at 620.

The frothy amici basically argue that this precedent is old and so doesn’t count anymore (even though they rely heavily on a decision, Rinaldi, from just four years later, and elsewhere on another precedent from 50 years earlier).

Amici who oppose the granting of the Government’s Rule 48 motion rely heavily on the D.C. Circuit’s 1973 decision in Ammidown. 7 But that decision did not address the profound separation of powers issue implicated by its theory of judicial power. In the almost half century since, the Supreme Court—and the D.C. Circuit—have substantially developed the separation of powers jurisprudence. Although Ammidown has not been expressly overruled, it has been superseded by subsequent teaching, and it can no longer reasonably be considered as the law of the Circuit.

The amicus brief also argues that Flynn’s perjury (of which the brief considers only his plea allocutions, and not his grand jury testimony), which led to Judge Sullivan tying up his court for two years, didn’t affect Sullivan’s performance of his duty as a judge and therefore can’t constitute contempt of court.

Gen. Flynn’s statements in connection with his plea plainly did not obstruct this Court in the performance of its duty. Thus, they simply cannot constitute contempt of court under long-standing precedent. The Court should therefore not embark on any contempt proceeding against Gen. Flynn.

But the most remarkable argument the amici make — remember, Trey Gowdy is on this brief — pertains to the “new” information that DOJ used to justify its flip-flop on Flynn’s prosecution.

In the amici presentation of “facts,” they mention, but don’t get into, the details of Flynn’s second allocution.

The case proceeded to a sentencing hearing on December 18, 2018, at which the Court made a further plea inquiry, and ultimately continued the case for sentencing at a later date.

They then quote the government’s irrelevant (to this legal argument) claim that Flynn didn’t have exculpatory information before he pled guilty

The Government concluded that Gen Flynn had entered his plea “without full awareness of the circumstances of the newly discovered, disclosed, or declassified information as to the FBI’s investigation of him. Mr. Flynn stipulated to the essential element of materiality without cause to dispute it insofar as it concerned not his course of conduct but rather that of the agency investigating him, and insofar as it has been further illuminated by new information in discovery.” (Id. at 19.)

This new information had not been previously disclosed to Gen. Flynn, his counsel, or the Court.

They return to the issue at the end of their brief, basically making an argument (to Judge Sullivan, in a brief that also argues that he doesn’t have discretion to reject a motion to dismiss and doesn’t have the authority to hold Flynn in contempt for lying in his plea allocutions) about Judge Sullivan’s own discretionary standing order on Brady. It lays out the discovery Flynn had gotten under Sullivan’s discretionary order, relying on this government filing, which among other things makes it clear Flynn got a summary of the Mary McCord and Sally Yates 302s submitted as part of the government’s motion to dismiss, and also a summary of an investigation into allegations about the pre-interview meetings at FBI, the notes from which are one of the “new” documents the government presented with its motion to dismiss.

Once this case was reassigned to this Court, it promptly entered its Standing Order, which evidently had a significant effect on the subsequent proceedings. In March 2018, the Government provided to the defense 1,160 pages of documents relating to the alleged false statement to the FBI agents and 21,142 pages relating to alleged false statements in a filing under the Foreign Agents Registration Act (FARA) that was included as relevant conduct in the Statement of Offense. (Id.) In May 2018, the Government provided a draft of the FBI 302 report; summaries of the interviews of four individuals related to the false statement; a summary of a document in which the FBI advised the DOJ that it did not believe that Gen. Flynn was acting as an agent of Russia; a summary of interviews of other officials concerning Gen. Flynn’s conversations with Ambassador Kislyak; and more documents related to the FARA filings. (Id.)

In November 2018, the Government provided the defense a summary of its investigation into whether: (i) the FBI 302 report was altered to strengthen a false statement charge; and (ii) the interviewing agents were pressured to “get” Gen. Flynn. In December 2018, before the original scheduled sentencing, the Government provided the defense with a summary of an interview of another individual related to the alleged false statement. (Id.) [my emphasis]

It then describes details about the Jeffrey Jensen review not included in the government motion to dismiss, leading to an argument that might be viewed as brown-nosing about how good Judge Sullivan’s standing motion for Brady is if it didn’t, along the way, ignore that Sullivan has already ruled this stuff isn’t Brady and even reviewed some of the files (the Mary McCord and Sally Yates 302s) that the amici claim were previously unavailable to anyone, including to Sullivan.

In January 2020, Attorney General Barr directed Jeffrey Jensen, the U.S. Attorney for the Eastern District of Missouri, to review the investigation of Gen. Flynn that the FBI had conducted. (Doc. 180-1.) Mr. Jensen had been an FBI agent for ten years and an Assistant U.S. Attorney for another ten years before becoming the U.S. Attorney. On April 24, 2020, the Government made an initial disclosure of documents that had been obtained and reviewed by Mr. Jensen. (Id.) On April 29, 2020, the Government made a second disclosure of documents. (Doc. 187-1.) On May 5, 2020, the Government made a third disclosure of documents. (Doc. 193-1.) On May 7, 2020, the Government filed its motion to dismiss, and on May 18, 2020, the Government made a fourth disclosure. (Doc. 210-1.)

[snip]

Viewed from a “big picture” perspective, the Government’s motion to dismiss was a product of the Court’s ongoing effort, through its Standing Order, to promote justice by requiring the Government, at all stages of a criminal proceeding, to examine its case and disclose information that may affect a defendant’s guilt or punishment. As such, the Government’s motion is a successful, and just, outcome.

Before it gets there, though, this brief — signed by Trey Gowdy! — claims that there was no way Flynn could have uncovered facts about FBI almost closing the Flynn investigation before DOJ turned it over in recent weeks.

The information which the Government disclosed about the FBI’s conduct of the investigation was within its exclusive possession. There is simply no way that Gen. Flynn could have known or uncovered these facts, which undermined an essential element of the charge against him, without the Government providing them to him. This is the paradigm of why the Constitution requires the Government to disclose such information to the defense. See Brady v. Maryland, 373 U.S. 83 (1963).

Trey Gowdy, as I’ve noted, was the key player behind this March 2018 report, which cites from one of the documents that, a brief signed by Trey Gowdy argues, was totally unavailable to Flynn or anyone else outside of government when he reallocuted his guilty plea in December 2018. Here’s the passage that Trey Gowdy helped write in 2018, giving Flynn nine months notice (even ignoring the congressional staffers providing it directly) that they kept the investigation into Flynn open because of his calls to Kislyak.

Director Comey testified that he authorized the closure of the CI investigation into General Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak.

In short, the best argument the frothy right can make in a brief signed by Trey Gowdy is that poor General Flynn must be let free because he shouldn’t be expected to read anything that Trey Gowdy has a hand in writing.

On the Two ECs Opening the Investigation into Mike Flynn

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A number of people have pointed me to this opinion piece, written by former top FBI guy, Kevin Brock, arguing that the Electronic Communication opening the Crossfire Hurricane investigation proves that the Trump campaign was investigated without justification. It bases that claim on several complaints:

  • It doesn’t fit what Brock deems to be a normal EC because:
    • It doesn’t have a “To” line
    • Peter Strzok both opened and approved it
    • It redacts the names of people who, Brock says, should be more senior than Strzok
  • It opened (Brock says) as a FARA investigation, without explaining why subjects of the investigation are subjects
  • Strzok justified the investigation by saying it served to determine if Trump’s people wittingly or unwittingly were working with Russia, without justifying a FARA investigation

From there, Brock claims that because there’s no articulation tying the evidence to those being investigated, the EC is proof the entire investigation was made up.

Ultimately, there was no attempt by Strzok to articulate any factors that address the elements of FARA. He couldn’t, because there are none. Instead, there was a weak attempt to allege some kind of cooperation with Russians by unknown individuals affiliated with the Trump campaign, again, with no supporting facts listed.

What this FBI document clearly establishes is that Crossfire Hurricane was an illicit, made-up investigation lacking a shred of justifying predication, sprung from the mind of someone who despised Donald Trump, and then blessed by inexperienced leadership at the highest levels who harbored their own now well-established biases.

The piece is more worthwhile than most pieces on the investigation. But there are several problems with it.

First, Brock doesn’t mention what is apparent when reading this document in context (but is not if you’re unfamiliar with the context and ignore the redactions). When you combine the document with what Bill Priestap says the Australian tip included, the document makes clear that George Papadopoulos specifically tied the campaign’s own plans to win the election by using dirt on Hillary Clinton to Russia’s offer to help in the process of using dirt on Hillary to win the election.

Papadopoulos said Trump would win because they had dirt on Hillary and then suggested Russia could “assist this process” — that is, using dirt to win the election — by anonymously releasing information damaging to Hillary.

The “this process” hidden behind the redaction is “using dirt to win the election.” The antecedent of “this process” must be (because that description does not and could not appear anywhere else), using dirt to win the election.

It is, perhaps, a subtle thing. But in context as the FBI received it, Papadopoulos tied Russia anonymously dropping dirt on Hillary to the centrality of dirt on Hillary in the Trump campaign’s plan to win.

Of course, to know that, you’d have to read the DOJ IG Report on Carter Page, which explains how the investigation got opened and specifically addresses some of the items that Brock raises. For example, the report cites multiple people putting the Australian tip in context with the ongoing investigation into the DNC hacks.

According to Priestap, he authorized opening the Crossfire Hurricane counterintelligence investigation on July 31, 2016, based upon these discussions. He told us that the FFG information was provided by a trusted source-the FFGand he therefore felt it “wise to open an investigation to look into” whether someone associated with the Trump campaign may have accepted the reported offer from the Russians. Priestap also told us that the combination of the FFG information and the FBI’s ongoing cyber intrusion investigation of the DNC hacks created a counterintelligence concern that the FBI was “obligated” to investigate.

The report also describes several people involved in the decision whose names remain redacted — the Intel Section Chief and the OGC Unit Chief — who might be the redacted names (as well as Bill Priestap).

It describes why Strzok, and not any case agent, opened the investigation.

After Priestap authorized the opening of Crossfire Hurricane, Strzok, with input from the OGC Unit Chief, drafted and approved the opening EC. 175 Strzok told us that the case agent normally drafts the opening EC for an investigation, but that Strzok did so for Crossfire Hurricane because a case agent was not yet assigned and there was an immediate need to travel to the European city to interview the FFG officials who had met with Papadopoulos.

It explains why the EC didn’t have a subject or subjects.

On July 31, 2016, the FBI opened a full counterintelligence investigation under the code name Crossfire Hurricane “to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.” As the predicating information did not indicate a specific individual, the opening EC did not include a specific subject or subjects. 

Finally, it explains how, with counterintelligence investigations, you might name crimes even when the investigation was into a national security threat.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections.

Note, too, that DOJ IG, after reviewing all this, said the predication of the investigation fell within guidelines for Full Investigations. John Durham — Bill Barr’s designated investigator — did not, but he did say that the predication met the standards of a Preliminary Investigation (which would not have changed any available tools). So in making the argument about this redacted document, Brock is disagreeing not only with DOJ’s IG, but also with Barr’s designated investigator, both of whom have access to unredacted documents.

What’s stranger still is that this piece, dated May 27, doesn’t bother to discuss the opening EC for the Flynn investigation, which was made public on May 7. Consulting it shows, among other things, that DOJ releases documents to Judicial Watch with fewer redactions than they release in their own cases.

It shows that that EC, also, did not include a “To” line.

But it also shows how the individual EC did some of the things Brock claimed had not been done with regards to articulating the investigation, including describing why Flynn was investigated.

The FBI is opening a full investigation based on the articulable factual basis that reasonably indicates that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security. The FBI is predicating the investigation on predetermined criteria set forth by the CROSSFIRE HURRICANE investigative team based on an assessment of reliable lead information received during the course of the investigation. Specifically, CR has been cited as an adviser to the Trump team on foreign policy issues February 2016; he has ties to various state-affiliated entities of the Russian Federation, as reported by open source information; and he traveled to Russia in December 2015, as reported by open source information. Additionally, CR has an active TS/SCI clearance.

The details describe how Flynn accepted multiple paid gigs with Russian quasi-state entities, including a junket to Moscow in December 2015 paid for by one of Russia’s propaganda outlets where he sat next to Vladimir Putin, then months later joined the Trump campaign, all while renewing his security clearance. The Crossfire Hurricane EC laid out the question: Whom would Russia have told they planned to help Trump win the election by dropping dirt on Hillary by providing their own dirt? And the hypothesis in the Crossfire Razor EC is that they might have told that to the guy Russia paid to meet Putin months before he joined the Trump campaign.

In addition, Flynn’s individual EC explains what the FARA designation on the original one, which Brock found so suspicious, means.

The goal of the investigation is to determine whether the captioned subject, associated with the Trump Team, is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act, 18 U.S.C section 951 et seq, or other related statutes.

That is, the goal wasn’t just busting Flynn in a FARA trap. It also — as virtually every Flynn defender likes to ignore — aimed to make sure he wasn’t secretly working for Russia (which is what it looks like when the incoming National Security Advisor calls up Russia and undermines the punishment imposed on Russia for tampering in the election and then lies about doing so to others in the Administration).

Most importantly, however, one of the goals was to see whether Russia was somehow controlling Flynn. It wasn’t (just) about Flynn. It was about potential harm to the US.

For some reason, Flynn’s defenders never want to talk about the damage it does to the United States when someone conducting an attack on the country gives one side advance notice of it.

There may still be reasons to question how the paperwork in this case was handled — though DOJ IG did not, in this specific case. And I find Brock’s questions more useful than the typical Flynn apology that directly contradicts the public record. But if you’re going to question the paperwork, at least consult all of the paperwork that has been made public.

The Eight Investigations into the Russian Investigation Have Already Lasted 47% Longer than the Investigation Itself

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Before the holiday weekend, FBI Director Christopher Wray announced an “after-action review of the Michael Flynn investigation.” Thus far, that makes the eighth known investigation into the Russian investigation — and every known investigation included at least a small component relating to Mike Flynn. The investigations into the Russian investigation, which collectively have lasted around 2,064 days, have gone on 47% longer than the investigation itself.

This table lists all the known investigations pertaining to the Russian investigation, save those into people involved in the Carter Page FISA applications. All have at least a component touching on the investigation into Mike Flynn.

This table assumes the Russian investigation is ongoing, based off the redactions in the Roger Stone warrant releases and FOIAed 302s, even though Mueller closed up shop a year ago.

At least three of the investigations in this table pertain to allegations first seeded with Sara Carter and then to various Congressional staffers that Andrew McCabe said, “Fuck Flynn, and I fucking hate Trump.” McCabe was actually considered the victim of the first investigation, which was conducted by the FBI’s Inspection Division, the same entity that will conduct the investigation announced last week. While the full timing of that investigation is not known, Strzok gave a statement to the Inspection Division on July 26, 2017. That Inspection Division investigation led into the investigation into McCabe himself, though that investigation focused on his confirmation of the investigation into the Clinton Foundation (and so is not counted in this table).

Mike Flynn kept raising the “Fuck Flynn” allegations with prosecutors, leading the government to review the allegations two more times, including an October 25, 2018 interview with Lisa Page where she was also asked about her role in editing the Flynn 302s.

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, 4 who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time

The DOJ IG investigation into whether Jim Comey violated policy or the law by bringing home his CYA memos started in July 2017 and continued through last summer. Obviously, one of those memos recorded Trump asking Comey to let the Flynn investigation go.

The table above does not include the DOJ IG Report on the Midyear Exam investigation (into Hillary), even though that was the first to examine the Lisa Page and Peter Strzok texts. For timing purposes, only the DOJ IG investigation into Carter Page’s FISA applications investigation counts the investigation into Page and Strzok. That investigation also considered the treatment of Flynn’s presence in the first intelligence briefing for Trump.

Finally, there’s the John Durham investigation — which Bill Barr’s top aides were scoping at least as early as April 12 of last year. There is no public scope document. Similarly, there’s no public scope document of the Jeffrey Jensen review, which Barr launched to create some excuse to move to dismiss the Flynn prosecution after prosecutors recommended (and all of DOJ approved) prison time. Wray’s statement announcing the FBI’s own investigation into the Flynn investigation made clear that the Jensen investigation remains ongoing.

FBI Director Christopher Wray today ordered the Bureau’s Inspection Division to conduct an after-action review of the Michael Flynn investigation.  The after-action review will have a two-fold purpose:  (1) evaluate the relevant facts related to the FBI’s role in the Flynn investigation and determine whether any current employees engaged in misconduct, and (2)  evaluate any FBI policies, procedures, or controls implicated by the Flynn investigation and identify any improvements that might be warranted.

The after-action review will complement the already substantial assistance the FBI has been providing to U.S. Attorney Jeff Jensen in connection with his work on the Flynn case.  Under Director Wray’s leadership, the FBI has been fully transparent and cooperative with Mr. Jensen, and the FBI’s help has included providing special agents to assist Mr. Jensen in the fact-finding process.  Although the FBI does not have the prosecutorial authority to bring a criminal case, the Inspection Division can and will evaluate whether any current on-board employees engaged in actions that might warrant disciplinary measures.  As for former employees, the FBI does not have the ability to take any disciplinary action.

Director Wray authorized this additional level of review now that the Department of Justice, through Mr. Jensen’s work, has developed sufficient information to determine how to proceed in the Flynn case.  However, Mr. Jensen’s work will continue to take priority, and the Director has further ordered the Inspection Division to coordinate closely with Mr. Jensen and ensure that the review does not interfere with or impede his efforts.  Relatedly, for purposes of ensuring investigative continuity across these related matters, the Inspection Division will also utilize to the extent practicable the special agents that the FBI previously assigned to assist Mr. Jensen.

In Bill Barr’s interview with Catherine Herridge, he discussed the Jensen review in terms of criminal behavior, which would mean Jensen and Durham are both considering criminal charges for some of the same activities — activities that had been investigated six times already.

Based on the evidence that you have seen, did senior FBI officials conspire to throw out the national security adviser?

Well, as I said, this is a particular episode. And it has some troubling features to it, as we’ve discussed. But I think, you know, that’s a question that really has to wait an analysis of all the different episodes that occurred through the summer of 2016 and the first several months of President Trump’s administration.

What are the consequences for these individuals?

Well, you know, I don’t wanna, you know, we’re in the middle of looking at all of this. John Durham’s investigation, and U.S. Attorney Jensen, I’m gonna ask him to do some more work on different items as well. And I’m gonna wait till all the evidence is, and I get their recommendations as to what they found and how serious it is.

But if, you know, if we were to find wrongdoing, in the sense of any criminal act, you know, obviously we would, we would follow through on that. But, again, you know, just because something may even stink to high heaven and be, you know, appear everyone to be bad we still have to apply the right standard and be convinced that there’s a violation of a criminal statute. And that we can prove it beyond a reasonable doubt. The same standard applies to everybody.

This is one reason why DOJ’s claim to have found “new” information justifying their flip-flop on Flynn’s prosecution would be so absurd if DOJ weren’t making the claim (with no documentation) in court. Different entities in DOJ had already investigated circumstances surrounding the Flynn investigation at least seven times before Jensen came in and did it again.

But I guess Barr is going to keep investigating until someone comes up with the result he demands.

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

MR. VAN GRACK: Yes, Your Honor.

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

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

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

MR. VAN GRACK: I believe so.

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

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

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

MR. VAN GRACK: Yes, Your Honor.

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

THE COURT: Yes, Counsel.

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

[snip]

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

Misdirection: The FBI was corrupt during the 2016 election

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

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

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

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

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

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

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

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

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

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

Handling Agent: “Trump!”

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

Handling Agent: “Yes it did.”

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

Handling Agent: “LOL”

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

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

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

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

Glenn continues to misrepresent what the Mueller Report was.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

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

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

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

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

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

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

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

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

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

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

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

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

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

False claim: FBI planted Stefan Halper within the Trump campaign

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Claim without evidence: Barack Obama disliked Flynn

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

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

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

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

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

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

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

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

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

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

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

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

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

Date and substance problems describing the sanctions

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

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

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

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

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

Elaboration: Claims about the conversation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Today’s version redacts that line as classified.

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

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

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

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