Steve Bannon’s Bas-Relief Confession that Trump Told Him to Deny Discussing Sanction Relief

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After a week of writing about Mike Flynn and more Mike Flynn, I’m finally getting around to the transcripts the House Intelligence Committee wrote last week. A bunch of frothy right wingers have pointed to the transcripts as PROOF OF NO COLLUSION, which is hilarious. I’ve barely begun reviewing them, but some glaring holes in the investigation include:

  • The key players — Mike Flynn and Paul Manafort, but also Rick Gates — did not testify
  • Two witnesses (Michael Cohen and Roger Stone) were convicted for the lies they told to the committee and a third (Erik Prince) is reportedly under investigation, even if Billy Barr’s DOJ doesn’t prosecute Trump flunkies
  • Multiple witnesses (Michael Caputo, Steve Bannon, and Jared Kushner, for starters) denied knowing people or having evidence their Mueller materials show they had

Republicans mostly asked each witness, “did you collude?” which predictably elicited the “no” answers the frothers are now pointing to as PROOF. Democrats spent most of their time trying to get recalcitrant witnesses to answer questions they refused to answer rather than trying to corner them into something useful.

The investigation was a shit-show.

The craziest thing (thus far, anyway), is Steve Bannon’s two appearances. Bannon testified in January 2018 and invoked White House guidance to refuse to answer questions from both the transition and post-inauguration periods, periods others had addressed. He also claimed any communications of interest would have been turned over by the campaign, thereby hiding emails he had with Roger Stone using his personal email where they explicitly discussed Julian Assange.

When Bannon went back a month later, having consulted with Devin Nunes in the interim and after Nunes appears to have shared a transcript of Bannon’s first appearance with the White House, he provided the committee a bunch of questions he would answer — all “no” answers.

Here’s how just some of those questions parroted back (for the second time in the hearing) looked:

MR. CONAWAY: After November 8th, 2016, did you meet with Ambassador Kislyak?

MR. BANNON: No.

MR. CONAWAY: On March 27, 2017, The New York Times reported that in mid-December of 2016 Kushner met with Sergei Gorkov of the VEB. Were you aware of this meeting?

MR. BANNON: No.

MR. CONAWAY: Did you attend a December 2016 meeting with Kushner that Kushner had with Gorkov?

MR. BANNON: No.

MR. CONAWAY: Did Mr. Prince have any role in the current administration?

MR. BANNON: No.

MR. CONAWAY: Was there any discussion on January 27th, 2017, at the White House regarding Mr. Papadopoulos, who was contacted by the FBI that day?

MR. BANNON: No.

MR. CONAWAY: Has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that the FBI had approached him?

MR. BANNON: Not to my knowledge.

MR. CONAWAY: Was the fact that the FBI approached Mr. Papadopoulos on January 27th communicated to President Trump?

MR. BANNON: Not to my knowledge.

MR. CONAWAY: Did Mr. Trump ever discuss with you any conversations between Donald Trump Jr. and WikiLeaks after the election?

MR. BANNON: No.

MR. CONAWAY: Did you ever meet with Devin Nunes about the Russia investigation?

MR. BANNON: No.

MR. CONAWAY: While at the White House, were you ever instructed to take any action that you believe could hinder the Russian investigation in any way?

MR. BANNON: No.

MR. CONAWAY: Were you ever given any instruction at the White House that you felt might amount to an effort to obstruct justice?

MR. BANNON: No.

MR. CONAWAY: Did you have any conversations with Director Comey after the election about whether he would remain the head of the FBI?

MR. BANNON: No.

MR. CONAWAY: Once you were part of the administration, were you a part of any discussions about how to approach the Russian, vis-à-vis the sanctions, whether to do away with them or in any way minimize the effects of the sanctions?

MR. BANNON: No.

Here’s how Adam Schiff got Bannon to admit that he was literally reading from a script the White House gave him (remember that Bannon’s lawyer, William Burck, also represented White House Counsel Don McGahn).

MR. SCHIFF: Mr. Bannon, who wrote these questions?

[Discussion off the record.]

MR. BANNON: My understanding, Mr. Schiff, is that these came from the transcript.

MR. SCHIFF: No, no, no. The questions that Mr. Conaway just asked you the questions. I asked you earlier if you had been authorized by the White House to answer all in the negative. Who wrote these questions?

MR. BANNON: Same answer.

MR. SCHIFF: What’s the same answer? Who wrote the questions?

MR. BANNON: My understanding is they came from the transcript.

MR. SCHIFF: What transcript are you talking about?

MR. BANNON: This transcript of my first interview.

[snip]

MR. SCHIFF: Well, how were they produced? How do you know that the White House has authorized you to answer them? [Discussion off the record.]

MR. BANNON: My counsel informed me that these were the questions the White House authorized me to answer.

MR. SCHIFF: But you didn’t write these questions?

MR. BANNON: No.

MR. SCHIFF: And your counsel didn’t write these questions?

MR. BANNON: No.

MR. SCHIFF: So these questions were supplied to you by the White House?

[Discussion off the record.]

MR. BANNON: As far as I know.

The thing is, most of these are now recognizably misdirection from some known damning detail. For example, Bannon did not attend the November 30, 2016 meeting with Sergey Kislyak at Trump Tower, but he was invited. Bannon’s lack of knowledge of Jared Kushner’s December meeting with Sergei Gorkov doesn’t make the meeting itself less damning — arguably, it suggests Kushner kept it on a close hold — and it doesn’t rule out Bannon being involved in a meeting with Gorkov sometime after that. Bannon’s narrow denial that Erik Prince had a role in the administration distracts from Prince’s role as a go-between with Russia during the transition, something Bannon was personally involved with (and covered up by deleting his relevant text messages). There was a discussion among senior campaign officials of the link that WikiLeaks sent Don Jr in September 2016, but it was during the election, not after it. Bannon didn’t have conversations with Jim Comey about firing him, but he had a ton of conversations about firing Comey, eight times on May 3 and 4, 2017 alone. Even the questions about obstruction of justice are consistent with explicit requests that Bannon obstruct, but that took place somewhere else, like Mar-a-Lago or Bedminster (and it’s notable that Bannon’s initial testimony dramatically backed off some of the claims Bannon made to Michael Wolff that had just been published in Fire and Fury).

As Adam Schiff begins to figure out what happened, he asks questions that make it clear that Bannon did not meet — in person — with Nunes, but did speak to him on the phone.

MR. SCHIFF: Now, I see there’s a question on here, did you ever meet with Devin Nunes about the Russia investigation, and you’ve answered that “no.” But you’ve also answered, when my colleague asked you, that you have discussed — you had discussions with Mr. Nunes and you refused to answer the question about whether it was about the Russian investigation. Is that correct?

[Discussion off the record.]

MR. BANNON: However I answered, it’s in the transcript.

MR. SCHIFF: Let me just ask you again. Did you ever meet with Devin Nunes about the Russian investigation?

MR. BANNON: No.

MR. SCHIFF: Did you ever discuss the Russia investigation with Devin Nunes?

[Discussion off the record.]

MR. BANNON: That’s not a question I’m authorized to answer.

Even before that, Schiff cops on to Bannon’s denial about something — whether George Papadopoulos alerted the White House after he was first questioned about the FBI — that Bannon knows nothing about.

MR. SCHIFF: So one of the questions that you were supplied by the White House was, has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that he had been — that the FBI had approached him? How do you know the answer to that, Mr. Bannon?

[Discussion off the record.]

MR. BANNON: Can you just ask the question again?

MR. SCHIFF: Yes. One of the questions that the White House gave you to answer to our committee was, has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that the FBI had approached him?

MR. BANNON: I think I said, “Not to my knowledge.”

MR. SCHIFF: So you really did don’t know, do you?

MR. BANNON: That’s — not to my knowledge.

MR. SCHIFF: Why did the White House propose a question to you that you couldn’t answer within your knowledge?

[Discussion off the record.]

MR. BANNON: You have to ask the White House that.

In Papadopoulos’ Congressional testimony (which took place in October 2018, so six months after Bannon’s second HPSCI interview), the coffee boy would admit that he emailed Marc Kasowitz, who was then Trump’s personal attorney, sometime after his FBI interview.

Q And you didn’t talk to anyone from the Trump organization about that interview with the FBI?

A I don’t think I did, no.

Q So you were interviewed again by the FBI —

A I can’t remember if I reached out to Marc Kasowitz about either that or my subpoena from the Senate. And I emailed him and I said, Look, would you be interested in representing me? I think that’s what happened. But I don’t — I can’t remember exactly why I emailed him, but I think I emailed Marc Kasowitz’ firm sometimes after the interview, but I don’t remember if he ever responded or anything like that.

This post writes up what we know about Papadopoulos’ testimony.

This makes it clear, then, that the script Bannon was given was a ham-handed attempt to get a bunch of denials in the record, denials of things that actually did happen.

Among the questions the White House included was one designed to get him to deny he had discussed eliminating sanctions on Russia.

MR. CONAWAY: Once you were part of the administration, were you a part of any discussions about how to approach the Russian, vis-à-vis the sanctions, whether to do away with them or in any way minimize the effects of the sanctions?

MR. BANNON: No.

Of course, this “no” answer only says Bannon didn’t continue to discuss ending sanctions on Russia after inauguration, but he did beforehand.

There is testimony on the Mueller Report about Bannon’s personal involvement in discussions about the Russian sanctions imposed on December 28, 2016. But Bannon — in testimony on February 12, 2018, so three days before he read this script before HPSCI — claimed to have forgotten those conversations.

Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237

[snip]

In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252

[snip]

Flynn recalled discussing the sanctions with Bannon the next day and that Bannon appeared to know about Flynn’s conversation with Kislyak. 1274 Bannon, for his part, recalled meeting with Flynn that day, but said that he did not remember discussing sanctions with him. 1275

[snip]

Flynn recalled discussing the sanctions issue with incoming Administration official Stephen Bannon the next day. 100 Flynn said that Bannon appeared to know about Flynn’s conversations with Kislyak, and he and Bannon agreed that they had “stopped the train on Russia’s response” to the sanctions. 101

1275 Bannon 2/12/18 302, at 9.

101 Flynn 1/19/18 302, at 4-5. Bannon recalled meeting with Flynn that day, but said he did not remember discussing sanctions with him. Bannon 2/12/18 302, at 9.

The White House gave Bannon a script, telling him to deny his involvement in reaching out to Russia on sanctions. And the specific form of the question — which asks about doing away with them — suggests those conversations on December 28, 2016 went further than the Mueller Report describes.

Which explains why Trump is trying to ensure Flynn avoids prison time for hiding that detail.

Schrodinger’s Materiality: Bill Barr’s DOJ Has an Active Filing Arguing Flynn’s Lies Were Material

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Bill Barr’s DOJ has this to say about whether Mike Flynn’s lies to the FBI on January 24, 2017 were material.

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

[snip]

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

[snip]

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

You might be forgiven for believing that Bill Barr’s DOJ didn’t made a vigorous argument to Judge Emmet Sullivan that Flynn’s lies were material, one that remains active before Sullivan, because almost no coverage of recent events concerning Flynn accounts for the posture of the case, in which there are at least four pending decisions before Sullivan. Several of those active representations argue Flynn’s lies were material.

Instead, coverage claims that Bill Barr’s DOJ believes that Flynn’s lies were in no way material. It is true that, in a motion to dismiss the case submitted last week, Bill Barr’s DOJ argued the lies weren’t material.

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. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

I know journalists are used to covering the Trump administration as a series of independent outrages, each one drowning out a prior newly inoperative one. But in courts, statements from a given party are presumed to have continuity, at least until those statements are resolved legally.

DOJ, generally, is assumed to have continuity in any proceeding, even between Administrations, and generally only changes position when the law or an interpretation of it changes, and as such would apply to all affected parties.

That’s all the more true within the span of one Administration. And in this case, Trump’s Acting Attorney General Rod Rosenstein agreed Flynn’s lies were material when he approved false statement charges against Flynn in December 2017, Trump’s Acting Attorney General Matt Whitaker’s DOJ argued Flynn’s lies were material when DOJ moved to sentencing in December 2018, Bill Barr’s DOJ argued “the FBI was engaged in a legitimate and significant investigation,” when it successfully defeated a request to dismiss the prosecution last fall, and Barr’s DOJ argued Flynn’s lies were material in January.

It is true that Barr’s DOJ has provided a claimed basis for changing its mind about the legitimacy of the investigation into Flynn and the materiality of the lies he told. It cites “newly discovered and disclosed information” as well as “recently declassified information.”

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.”

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

Not only is the reference to “newly declassified information” a tell that this information is claimed only to be new to Flynn, the motion to dismiss does none of the things legal filings are supposed to do to substantiate claims like this. There’s no declaration from Jeffrey Jensen describing the reasons for his review and explaining how, over three years into this investigation, he came to discover “new” information that hadn’t been considered by Rod Rosenstein and Matt Whitaker and Bill Barr or Robert Mueller and Jessie Liu when DOJ had previously argued this was a legitimate investigation. There’s no declaration from a Records Officer explaining how it is that the two files claimed to be new evaded anyone’s attention all these years and proving these documents hadn’t been reviewed by DOJ before. There’s not even a description in the filing specifying what it is that DOJ is claiming to be new, there’s just a citation to docket entries of stuff that was newly turned over to Flynn.

Plus, all of the facts on which this motion to dismiss relies — that the FBI hadn’t found anything in its counterintelligence investigation into Flynn, but decided to keep it open in early January 2017 when they discovered the Kislyak transcripts, and that people in DOJ and FBI had conflicting understandings of the status of the investigation leading up to the interview — has not only been known to DOJ but has been public since March 22, 2018, when Republicans released it in their Russian Report.

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. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure was imminent.

[snip]

The Committee received conflicting testimony from Deputy Attorney General  (DAG) Yates, Director Comey, Principal Deputy Assistant Attorney General McCord, and Deputy Director McCabe about whether the primary purpose of the interview was investigating potentially misleading statements to the Vice President, which the Vice President echoed publicly about the content of those calls; a possible violation of the Logan Act; or a desire to obtain more information as part of the counterintelligence investigation into General Flynn.

Sullivan knows well that DOJ knew of this information, because he litigated a long dispute over this information starting in August and wrote an opinion on it in December. He even reviewed two of the 302s the government relies heavily on — those of Mary McCord and Sally Yates — to make sure the summaries DOJ gave to Flynn were sufficient, which is pretty good proof that DOJ knew about them and their representations about the almost-closed investigation and the discussions about the multiple things FBI was investigating. Billy Barr claimed in his interview that this was new to him — something he has not done in a representation to the court — but then described just what appears in the passage from the HPSCI Report, something which was public (and circumstances to which he alluded in his confirmation hearing). In fact, FBI has gone on the record to say that these records had already been shared with DOJ IG (which completed a report in December that didn’t treat them as unusual) and the John Durham inquiry (which began a year ago).

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

So these documents aren’t even new to oversight elements in DOJ outside of the prosecutorial team that argued for the materiality of this case. Because the documents are not new to DOJ, DOJ has offered no valid reason to flip-flop about its view on the legitimacy of the investigation and the materiality of Flynn’s lies.

All the more so given one more detail about this case. Before prosecutors submitted the sentencing memo in January that made an aggressive case for the legitimacy of the prosecution and the materiality of Flynn’s lies, they had to get two extensions to secure the necessary approvals. In December, prosecutors got a week extension for their sentencing memo to get approval from the “multiple individuals and entities” who would need to approve it.

There are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations.

Then, on January 6, the government asked for and got one more day.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so. The government respectfully requests that this Court extend the government’s deadline to provide its supplemental sentencing memorandum to Tuesday, January 7, 2020, at 12:00 p.m.

Having twice granted extensions so prosecutors could be sure they got all the approvals they needed for their sentencing memorandum, and absent any claim since they didn’t secure those approvals, Judge Sullivan would be well-justified in treating that sentencing memorandum arguing forcefully for the legitimacy of the investigation into Flynn as the view of the entire DOJ, up to and including the Attorney General.

And since DOJ’s claims to have discovered “new” information since then are not supported by any proof and are in fact refuted by the public record, he has good reason to treat the earlier representations from Bill Barr’s DOJ as the operative one.

In Judge Sullivan’s court, Bill Barr’s DOJ’s claim that Flynn’s lies are material remains an active legal claim in support of sentencing, even while Bill Barr’s DOJ claims something entirely different in opposition to continuing the prosecution. Even Bill Barr has conceded that Judge Sullivan gets to decide whether to accept the motion to dismiss. If Sullivan rejects it, he can move immediately to sentencing, relying on Bill Barr’s DOJ’s argument that Flynn’s lies were material. Bill Barr is arguing with himself here.

Flynn’s supporters have started to argue that Sullivan’s appointment of John Gleeson conflicts with the recent SCOTUS decision in Sineneng-Smith which prohibits courts from seeking out opinions from parties not before the court to present issues that haven’t otherwise been presented.

One week ago, the U.S. Supreme Court issued a 9-0 decision, authored by Justice Ginsburg, that took judges to task for similar amicus antics. Her opinion for the Court in U.S. v. Sineneng-Smith upbraided the U.S. Court of Appeals for the Ninth Circuit for violating a basic aspect of legal proceedings called the “party presentation principle.” In a nutshell, this concept dictates that judges must decide the case as presented by the parties before them. They are not to go out questing for dragons to slay (or issues to tackle) that the parties have not brought before them. As J. Ginsburg put it: “[C]ourts are essentially passive instruments of government … They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”

That’s not what’s happening here. Judge Sullivan is asking Gleeson to argue the view of a party that remains before the court: that of DOJ, which argued in December 2017 and in December 2018 and in November 2019 and in January 2020 that Flynn’s lies are material and the prosecution just. The issues of materiality have been before the court since 2017, and DOJ has argued for the materiality of Flynn’s lies vigorously. I have no idea what Sullivan plans to do with respect to additional testimony. But even based on the public record as it exists today (not least because the motion to dismiss egregiously misrepresents the exhibits it relies on and in them, presented evidence that the purpose of the Flynn interview was clear), Gleeson could easily substantiate DOJ’s still active representation before Judge Sullivan’s court (in their still-pending sentencing memorandum) that Flynn was rightly prosecuted for material lies to the FBI.

Unlike Trump, Bill Barr doesn’t get to just ignore claims his own DOJ has made in the past. He can claim he has reason to reverse those claims, but there, too, Sullivan has discretion. DOJ would have to ask leave to modify its sentencing recommendation, and provide proof lacking here they have reason to do so. As it stands, however, DOJ has not asked to modify the sentencing recommendation, and thus their claims about materiality remain before Sullivan unchanged, sitting there in the docket right next to Bill Barr’s DOJ’s radically different claims.

There has been some shitty commentary presenting Bill Barr’s motion to withdraw as a Both-Sides issue, but totally misconstruing which are the two sides, claiming it pits DOJ against critics.

The Justice Department argues that the FBI shouldn’t have conducted its Jan. 24, 2017, interview of Flynn, because the bureau was already aware through phone intercepts of what he had discussed with the Russian ambassador and there wasn’t proper justification for continuing the investigation of Flynn. That request to dismiss, put forward by Attorney General William Barr, has been criticized by nearly 2,000 former Justice Department officials and hailed by Trump and his supporters.

But it totally misconstrues the two sides here. They are Bill Barr’s DOJ versus Bill Barr’s DOJ.

This is the rare opportunity where the kind of Both-Sides journalism the Beltway press loves to practice has merit. On one side, there’s Bill Barr’s DOJ, which has a currently active argument that Mike Flynn’s lies were material to a legitimate investigation. On the other side, there’s Bill Barr’s DOJ, which has a different argument (one that conflicts with the exhibits presented with it) that because there was no legitimate investigation at the time, Mike Flynn’s lies were not material.

As Richard Burr Rushes to Release Volume Five of SSCI’s Russian Investigation, the FBI Closes In

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Update: As I was posting this, reports that Burr is stepping down as Chair of SSCI came out.

The LAT has a big scoop revealing that the FBI seized Richard Burr’s cell phone yesterday, having gotten a probable cause warrant incorporating information they obtained via a search of his iCloud.

Federal agents seized a cellphone belonging to a prominent Republican senator on Wednesday night as part of the Justice Department’s investigation into controversial stock trades he made as the novel coronavirus first struck the U.S., a law enforcement official said.

[snip]

Such a warrant being served on a sitting U.S. senator would require approval from the highest ranks of the Justice Department and is a step that would not be taken lightly. Kerri Kupec, a Justice Department spokeswoman, declined to comment.

A second law enforcement official said FBI agents served a warrant in recent days on Apple to obtain information from Burr’s iCloud account and said agents used data obtained from the California-based company as part of the evidence used to obtain the warrant for the senator’s phone.

[snip]

The same day Burr sold his stocks, Burr’s brother-in-law, Gerald Fauth, sold between $97,000 and $280,000 worth of six stocks, according to documents filed with the Office of Government Ethics. Fauth serves on the National Mediation Board, which provides mediation for labor disputes in the aviation and rail industries.

Burr has denied coordinating trading with his brother-in-law.

Given the progression from an iCloud warrant to the warrant for the cell phone, it’s likely the FBI is seeking out texts between Burr and his brother-in-law around the time of the stock sales. (The FBI often access iCloud to find out what apps someone has accessed, obtains a pen register to identify communications of interest using that app, then seizes the phone to get those encrypted communications.)

The public evidence again Burr is quite damning, so there’s no question that this is a properly predicated investigation.

Still, coming from a DOJ that has gone to great lengths to protect other looting (and has not taken similar public steps against Kelly Loeffler), the move does raise questions.

Particularly given the focus that Richard Burr gave, during the John Ratcliffe confirmation hearing, to getting the final volume of the SSCI Report on 2016 declassified and released by August.

Richard Burr: Congressman, over the course of the last three years this committee has issued four reports about Russia’s meddling in our elections covering Russia’s intrusions into state election systems, their use of social media to attempt to influence the election, and. most recently confirming the findings of the 2017 Intelligence Community Assessment. While being mindful of the fact that we’re, um, in an unclassified setting, what are your views on Russia’s meddling in our elections?

John Ratcliffe: Chairman, my views are that Russia meddled or interfered with Active Measures in 2016, they interfered in 2018, they will attempt to do so in 2018 [sic]. They have a goal of sowing discord, and they have been successful in sowing discord. Fortunately, based on the work–the good work of this committee, we know that they may have been successful in that regard but they have not been successful in changing votes or the outcome of any election. The Intelligence Community, as you know, plays a vital role on insuring we have safe, secure, and credible elections and that every vote cast by every American is done so properly and counted properly.

Burr: Will you commit to bringing information about threats to the election infrastructure and about foreign governments’ efforts to influence to Congress so we’re fully and currently informed?

Ratcliffe: I will.

Burr; Will you commit to testify at this committee’s annual worldwide threats hearing?

Ratcliffe: I will.

Burr: And last question, over the last three years we have issued four reports. Number five is finished. Number five will go for declassification. Do we have your commitment as DNI that you would expeditiously go through the declassification process?

Ratcliffe: You do.

Burr: Senator Warner.

Mark Warner: Thank you Mr. Chairman. You actually took some of my questions.

Burr: My eyesight is good.

Warner: Mr. Ratcliffe, good to see you again and I appreciated our time, um, um, last Friday. I want to follow-up on a couple of the Chairman’s questions first. As we discussed, we’re … Volume Five, and so far our first four volumes have all been unanimous. Or maybe with the exception of one dissenting vote. If we get this document to the ODNI we need your commitment not only that we do it expeditiously, but as much as possible to get that Volume Five reviewed, redacted, and released, ideally before the August, the August recess. Now, I know you’ve not seen the report yet. All I would ask is, aspirationally that you commit to that goal, because I think as we discussed, to have a document that could be [big pause] potentially significant come out in the midst of a presidential campaign isn’t good or fair on either side. So if I could clarify a bit, recognizing that you’ve not seen the document is a thousand pages, that you’d try to get this cleared prior to August.

Ratcliffe: Vice Chairman, I would again, commit that I would work with you to get that as expeditiously as possible.

During the 2018 election, Burr had — at a time when the committee assuredly did not have the ability to rule it out — twice said there was no evidence of “collusion.” Burr has made no such claims recently.

Even just the Roger Stone disclosures from his trial make it clear “collusion” happened, and that’s ignoring the ongoing Foreign Agent investigation involving Stone. And the Intelligence Committees have been briefed on the existence of — and possibly some details about — either that or other ongoing investigations.

If Richard Burr is prepping to reverse his prior public comments about “collusion,” it might explain why the Bill Barr DOJ, which has stopped hiding that it is an instrument used to enforce political loyalty to Trump, would more aggressively investigate Burr than others.

Again, there’s no question that this is a properly predicated investigation. But in the Barr DOJ, properly predicated investigations about political allies of Trump all get quashed. This one has, instead, been aggressively and overtly pursued.

The Legal Posture of the Flynn Case: Emmet Sullivan Has Up to Six Pending Decisions, Not One

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Partly as a public service (the vast majority of people who are commenting on DOJ’s actions seem to be unfamiliar with the docket) and partly to set up a post I will do attempting to explain why Billy Barr did something as aggressive as he did last week, I wanted to lay out where all the moving pieces in Mike Flynn’s case stand.

Flynn blows up a probation sentencing with mixed claims about his prosecution

Prosecutors first started moving towards sentencing Flynn in June 2018; it’s clear the investigation was still ongoing but they asked to have Flynn’s presentencing report filed so they could move quickly after that. We now know that this was days after Flynn testified to the grand jury in the Turkish influence peddling case. There were reports Flynn was anxious to be sentenced so he could start earning a living again and in this time period, he registered to start influence peddling again, before his lawyers got him to claim that was just a mistake. On September 17, 2018, prosecutors said they were ready to move towards sentencing and asked for a date starting in November, after the midterms. The hearing ultimately got scheduled for December 18, 2018, after Jeff Sessions had been fired and Trump had announced he would nominate Bill Barr to be Attorney General (he didn’t actually send the nomination to the Senate until January 3, 2019, for reasons that likely have to do with Matt Whitaker’s Vacancy Reform Act status).

At that point, prosecutors recommended a sentence within guidelines and a downward departure, which is consistent with probation. Had Flynn left well enough alone, he would have gotten a year of probation and he’d be free and clear of the justice system by now.

He didn’t leave well enough alone. He got cute, claiming to accept guilt but at the same time floating the first of his complaints about being perjury trapped by mean old FBI agents. In response, not only did Judge Emmet Sullivan release the documents that revealed Flynn lies were worse than known, but he put Flynn under oath, both to reallocute his guilty plea, but also to swear that he didn’t think the circumstances of his interview made him any less guilty. After Sullivan made it clear that if he sentenced Flynn that day, he’d give him prison time, Flynn decided to wait until he was done cooperating after testifying at his partner Bijan Kian’s trial.

On February 14, 2019, the day Billy Barr was confirmed, Flynn sent a tweet suggesting “the eagle had landed” to Matt Gaetz, whose assaults on the Mueller investigation he had previously cheered in 2018.

After Barr was confirmed, Mueller quickly moved to write up his report, which was completed on March 22 and released on April 19, 2019. Mueller did not close his office, however, until May 29, when he gave a hasty press conference even as the final outstanding piece of evidence — Roger Stone aide, Andrew Miller’s testimony — came in.

When Mueller testified before Congress two months later on July 24, the most newsworthy thing he said was that FBI was still investigating the counterintelligence impact of Mike Flynn’s lies.

[Congressman Raja] KRISHNAMOORTHI: For example, you successfully charged former National Security Advisor Michael Flynn of lying to federal agents about this conversations with Russian officials, correct?

MUELLER: Correct.

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.

Flynn replaces Covington for Powell and Blows Up the Bijan Kian Trial

Exactly a week later, Flynn replaced his competent attorney, Rob Kelner, with Fox News firebreather, Sidney Powell, who moved immediately to collaborate with Bill Barr to undermine his prosecution.

In late June, Flynn started reneging on the testimony he provided in the Kian trial. As a result, the government tried to change their plan for the prosecution, attempting to admit Flynn’s prior testimony as a co-conspriator of unregistered foreign agents (who were charged under 18 USC 951, not just as lobbyists). Flynn intervened to fight that (not least, because it would completely doom any effort to avoid prison), blaming Kelner for making him submit a false FARA declaration even while submitting evidence actually showing that Flynn misled Kelner during the filing process. The move predictably helped Kian, as those events were key in Judge Anthony Trenga’s decision to throw out his conviction (which is currently being appealed, but which I expect DOJ to try to blow up in a further attempt to protect Flynn), but it also started a series of claims from Flynn that directly conflicted with his past sworn statements.

Sullivan, noting what was happening over in EDVA, asked the sides to weigh in, which is how Flynn’s team first started making claims in Sullivan’s court that the government, not Flynn, had reneged, all while submitting evidence showing the contrary.

Which is to say, even before Powell took a single action in the Flynn case, Flynn had created further exposure for himself.

As part of a Brady motion, Flynn moves to dismiss the prosecution

The first legal step Sidney Powell took was to submit a motion to compel Brady material. The first filing, on August 30, made no specific request (though did demand more classified information on behalf of Flynn, who of course had confessed to secretly working for a foreign government during the campaign). Powell also asked for more time. Days after submitting that, however, Powell and her colleagues demanded security clearances. On September 11, a more detailed motion was unsealed. That motion included a long list of demands, many based on wild conspiracy theories; the list largely tracked the one Powell had sent to Barr three months earlier, though she generally moderated her language and added a number of requests pertaining to the Turkish investigation that weren’t included in her Barr letter.

Many of these items are among those the government relied on in its motion to dismiss last week, proving the documents were in no way “new.”

Almost two weeks later, Flynn cleaned up some problems in the original request.

On October 1, prosecutors provided a timeline showing they had already produced everything they believed Flynn was entitled to. The same day, they responded to the Brady motion with a detailed response to each of Flynn’s demands, as well as two exhibits showing that this was part of a larger effort to undermine the Mueller investigation (which I addressed here).

On October 15, Flynn demanded evidence from Joseph Mifsud’s phone — which further established Sidney Powell didn’t care about whether her demands related to her client, but also that she had an open channel of communication with Bill Barr about his Durham investigation.

In Powell’s reply to the government, she included a new demand: that Judge Sullivan dismiss the case for misconduct based on precisely the claims made by DOJ last week.

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

[snip]

The FBI had no factual or legal basis for a criminal investigation, nor did they have a valid basis for a counter-intelligence investigation against an American citizen, and they all knew it. 11 Exs. 5, 6. The evidence the defense requests will eviscerate any factual basis for the plea and reveal conduct so outrageous—if there is not enough already—to mandate dismissal of this prosecution for egregious government misconduct.

[snip]

In its relentless pursuit of Mr. Flynn, the government became the architect of an injustice so egregious it is “repugnant to the American criminal system.” Russell, 411 U.S. at 428 (citations omitted). For these reasons and those in our original Motion and Brief in Support, this Court should compel the government to produce the evidence the defense requests in its full, unredacted form. Given the clear and convincing evidence herein, this Court should issue an order to show cause why the prosecutors should not be held in contempt; and should dismiss the entire prosecution for outrageous government misconduct.

The government noted Powell’s new arguments and got permission to submit a surreply, in which they pointed out that Flynn was already in possession of the information he was using to argue for dismissal when he pled guilty the second time.

Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant. See Hearing Transcript at 8-10, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). The defendant further affirmed, under oath, that he wished to proceed to sentencing because he was guilty of making false statements to the FBI. See id. at 16.

[snip]

Nor did law enforcement officials engage in “outrageous” conduct during the criminal investigation and prosecution of the defendant. On January 24, 2017, when the defendant lied in his interview, the FBI was engaged in a legitimate and significant investigation into whether individuals associated with the campaign of then-candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election. The defendant was not “ambushed” at the interview, and the interviewing agents certainly did not engage in “outrageous” conduct that undermines the fact that he lied. Reply at 1, 7. The documents produced by the government in discovery show that the FBI asked the defendant for permission to conduct the interview, informed the defendant that the questions would concern his “contacts with the Russian Ambassador to the United States,” interviewed the defendant in his own office, and afforded him multiple opportunities to correct his false statements by revisiting key questions. See, e.g., Memorandum of Andrew McCabe dated January 24, 2017 (Doc. 56-1) (“McCabe Memo”); Strzok 302.

[snip]

For all of the above reasons, it is no surprise that with the same set of facts, the defendant and his prior counsel previously represented to this Court that the circumstances of the interview had no impact on his guilt, or guilty plea. On December 18, 2018, when the Court asked the defendant if he wished to “challenge the circumstances on which you were interviewed by the FBI,” he responded, under oath, “No, Your Honor.” 12/18/2018 Hearing Tr. at 8.10 The Court then asked the defendant if he understood that “by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed,” to which the defendant answered, “Yes, Your Honor.” Id. And when the Court queried whether the defendant wanted an opportunity to withdraw his plea because one of the interviewing agents had been investigated for misconduct, the defendant stated “I do not, Your Honor.” Id. at 9. His counsel likewise represented to the Court that their client was not “entrapped by the FBI,” and that they did not contend “any misconduct by a member of the FBI raises any degree of doubt that Mr. Flynn intentionally lied to the FBI.” Id. at 11-12.

In a sur-surreply, Powell tried to back off having demanded that Sullivan dismiss the case, saying that her past arguments and the government’s response aren’t her real motion to dismiss.

In conclusion, yes, the government engaged in conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct. See United States v. Russell, 411 U.S. 423, 428 (1973). However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an order compelling the government to produce the additional Brady evidence he has requested—in full and unredacted form—and an order to show cause why the government should not be held in contempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice. Mr. Flynn is entitled to discovery of the materials he has requested in these motions and briefs that will help him support such a motion.

In Emmet Sullivan’s meticulous 92-page order issued in December denying Flynn’s Brady request, however, he addressed the request for dismissal, specifically distinguishing this case from that of Ted Stevens.

Mr. Flynn’s requested relief is dismissal of this case. See Def.’s Reply, ECF No. 133 at 36; see also Def.’s Sur-Surreply, ECF No. 135 at 17. He seeks dismissal of the charges against him and the entire prosecution for government misconduct. E.g., Def.’s Reply, ECF No. 133 at 7, 23 n.15, 36; Def.’s SurSurreply, ECF No. 135 at 17. The government disagrees. See Gov’t’s Surreply, ECF No. 132 at 12-15. This case is not United States v. Theodore F. Stevens, Criminal Action No. 08–231(EGS), the case that Mr. Flynn relies on throughout his briefing. In that case, the Court granted the government’s motion to dismiss, and the government admitted that it had committed Brady violations and made misrepresentations to the Court. In re Special Proceedings, 825 F. Supp. 2d 203, 204 (D.D.C. 2011) (Sullivan, J.). Even if Mr. Flynn established a Brady violation in this case, dismissal would be unwarranted because “[t]he remedy for a Brady violation is retrial, not dismissal.” United States v. Borda, 941 F. Supp. 2d 16, 19 n.1 (D.D.C. 2013) (citing Pettiford, 627 F.3d at 1228). “[D]ismissal is appropriate only as a last resort, where no other remedy would cure prejudice against a defendant.” Pasha, 797 F.3d at 1139. [my emphasis]

As the government noted when they responded to Flynn’s request for dismissal, he already had all the evidence on which he premised that demand when he pled guilty a second time in December 2018.

In a sentencing memo, the government accounts for Flynn’s failed cooperation and refusal to admit guilt

In the wake of Sullivan’s order, the parties moved towards sentencing in January. The government got two continuances before submitting their revised motion, one in December and another in January, to get all required approvals for their sentencing memo. That means prosecutors on the case went to great lengths to approve their recommendation for prison time.

The factors enunciated in Section 3553(a) all favor the imposition of a sentence within the Guidelines range. 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.

I’ll return to that memo, but the key point is that Judge Sullivan specifically gave Bill Barr’s DOJ time to ensure that the chain of command approved their supplemental sentencing memo.

Before Flynn responded to that revised recommendation, they asked for a continuance to allow them to withdraw Flynn’s guilty plea, specifically citing prosecutors’ recommendation for prison time.

Because Flynn submitted his supplemental sentencing memo after beginning the process to withdraw his guilty plea, they were stuck arguing in it both that Flynn should get credit for admitting guilty but also arguing that he was not guilty.

The government reply, submitted as Barr started the process to replace Jessie Liu, is the one that alerted everyone to the shenanigans that Barr was up to. Whereas the initial supplemental motion — which had been delayed twice to get approval — recommended prison time, this one reverted back to supporting probation, the position the government had adopted before Flynn had reneged on both his cooperation and his guilty.

Flynn blames his guilty pleas on his Covington lawyers

As noted, Flynn cited the recommendation for prison time in asking to withdraw his guilty plea(s). Flynn based his request to withdraw his guilty plea on a claim that his very competent Covington lawyers were both conflicted and incompetent. He then submitted what was originally called a supplement — which made no new arguments — which they subsequently corrected to note,

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

In response to a second request for more time on its filings, Judge Sullivan issued an order that reflects where he’ll likely go now: he raised the prospect of an evidentiary hearing to determine whether there is good cause to set aside his guilty plea.

Mr. Flynn’s supplemental motion and the government’s response shall address the following: (1) the standard in this Circuit for a defendant seeking to withdraw a guilty plea before sentencing; and (2) the need for an evidentiary hearing where the parties would present all testimony and evidence concerning the issue of whether Mr. Flynn can show that there is good cause to set aside his guilty pleas, see United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995), including testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, to show any “fair and just reason” for this Court to grant his motion to withdraw, Fed. R. Crim. P. 11(d).

From that moment forward, it became clear that Sullivan would put Flynn back under oath.

On February 9, prosecutors made things still worse, by asking Sullivan to waive Covington’s attorney-client privilege with respect to Flynn so they could assist prosecutors in rebutting his claims that they were incompetent. From that point forward, it became clear that not only Flynn, but his very credible former lawyers, would be testifying about the prosecution.

On January 29, just two days before Bill Barr would replace Jessie Liu with his flunky and around the same time he ordered Jeffrey Jensen to review the Flynn prosecution, Flynn submitted what he billed as his real supplemental motion to withdraw, doubling down on the claim that his former lawyers were responsible for his guilty pleas, he wasn’t.

As I noted at the time, the motions in conjunction created new risks for Flynn: in particular, his motion to withdraw included a sworn declaration that conflicted with three past sworn statements from him:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • No other threats or promises were made to him except what was in the plea agreement
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:
    • He lied about several conversations with Sergey Kislyak about sanctions
    • He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN
    • He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract
    • He was satisfied with the services his attorneys had provided
    • He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty
    • He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently
    • He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct
    • During his interview with the FBI, he was aware that lying to the FBI was a federal crime
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.” Flynn claims he forgot about the substance of his conversations with the Russian Ambassador, rather than lied about them.

To make things worse, as often happens with exhibits Sidney Powell introduces, the actual record undermined claims Flynn made. For example, Flynn included a document that showed Covington gave him more warnings about conflict than he admitted to in his declaration, thereby making it clear his sworn declaration didn’t match the record accompanying it.

Flynn repeats his claim he was railroaded

That same day Flynn submitted his most substantive motion to withdraw his guilty plea, January 29, he also submitted a motion to dismiss his prosecution. It was basically a repeat of the request made months earlier as part of the Brady request, pointing to irregularities in the Carter Page FISA application as the primary justification to make the motion anew.

On February 12, prosecutors responded to that motion pointing out there was nothing new here. Flynn’s response was repetitive and included a misleading timeline full of claims that contradict claims they’ve made elsewhere. The motion ignored that Flynn waived these complaints when he pled guilty the second time.

The government repeatedly claims that Mr. Flynn waived his right to constitutional protections when he pled guilty. ECF No. 169 at n.3. But, Mr. Flynn’s plea cannot stand, and the government cannot use it as both a shield for its misconduct and a sword to sentence Mr. Flynn. His plea was infected with constitutional error which rendered it neither knowing nor voluntary and in violation of Mr. Flynn’s Sixth Amendment rights. See ECF No. 162-2. As Mr. Flynn argued in his Motion to Withdraw Plea, ECF No. 151, even if it were a validly contracted plea, the government breached the contract the moment Mr. Van Grack filed the government’s supplemental sentencing memo which withdrew its motion for downward departure and its recommendation of probation. See ECF No. 150 at 3 (“In addition to asking the Court to credit the defendant with providing substantial assistance, the government recommended that the defendant receive credit for accepting responsibility. . . . [T]he government now withdraws both requests.”).

As prosecutors prepare their Covington argument, Bill Barr prepared his “new” information

As noted, on February 9, prosecutors took steps to be able to prove that Covington, in fact, gave Flynn exceptionally good advice. They asked for a series of delays while they did that. According to the schedule set by Judge Sullivan, prosecutors would have proposed a briefing schedule to lay all that out last Friday, possibly in a motion including some of the details from the 600 pages of evidence obtained from Covington that (the record already shows) would substantiate that Flynn gave them incorrect information for his FARA filing and repeatedly brushed off warnings about conflict.

During the delay, Covington did find 6,000 new records on top of the 600,000 documents they had already provided. Given the Bates numbers of documents filed last week, there’s no reason to believe those exhibits were included in these newly discovered documents.

As that was happening, prosecutor Jocelyn Ballantine handed over, drip-by-drip, the documents that Jeffrey Jensen “analyzed.”

Beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The review by USA EDMO has involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation (“FBI”) personnel associated with the investigation.

The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

None of this discovery correspondence said the documents were new to prosecutors, only that Jensen had reviewed them. They were, nevertheless, the documents that Timothy Shea claimed were “new” as his basis for flip-flopping on DOJ’s position on the case.

Emmet Sullivan has six decisions to make, not just one

Many, perhaps most, people who’ve commented in the last week have noted that Emmet Sullivan has the prerogative whether to accept DOJ’s motion or not. It’s true he has that authority. But he actually has up to six different decisions pending, as follows:

  1. Whether to accept or reject DOJ’s motion to dismiss
  2. If Sullivan accepts DOJ’s motion to dismiss, whether he does so with or without prejudice
  3. Whether to accept or reject Flynn’s motion to withdraw his pending withdraw of guilty plea, motion to dismiss, and waiver of privilege for Covington (to which DOJ has consented)
  4. Whether to hold an evidentiary hearing or ask for briefing on Flynn’s motion to withdraw
  5. Whether to accept or reject Flynn’s motion to dismiss his prosecution
  6. Whether and if so how to sentence Flynn based on fully briefed sentencing memoranda

Sullivan would not get to most of these without, first, deciding what to do about DOJ’s motion to dismiss. And if he rejected DOJ’s motion to dismiss, he would obviously reject Flynn’s motion to dismiss, just like he already rejected that argument. Though if Sullivan does reject DOJ’s motion to dismiss, sentencing is fully briefed and he could move immediately to sentencing.

Moreover, Flynn’s multiple conflicting sworn statements are before this court whether or not Sullivan rejects DOJ’s motion to dismiss. And he could reach that decision — or at least order briefing on the Covington evidence Flynn clearly wants to keep hidden — without (or before) weighing in on DOJ’s motion to dismiss.

Which is likely one of the reasons Sullivan is taking his time before he issues the next scheduling order.

Update: I should have put this quote on behalf of Chris Wray in several posts before this one. But basically, the FBI has already put it into the public record that the stuff DOJ claimed was “new” last week had already been reviewed by DOJ IG and John Durham’s inquiry.

With regard to certain documents in the Michael Flynn matter from the 2016-2017 time period that are now the subject of reporting by the press, the FBI previously produced those materials to the Inspector General and U.S. Attorney Durham,” the FBI said.

Mike Flynn Collaborator Barbara Ledeen’s Past Role in Producing “New” Evidence

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There are two grounds on which Emmet Sullivan, even ignoring other procedural grounds, might reject the substance of Bill Barr’s motion to withdraw the Mike Flynn prosecution.

Most of the focus has been on materiality. The Timothy Shea-signed motion’s argument about materiality is thin and conflicts with arguments Bill Barr’s DOJ made on the same issues last fall. More importantly, the argument relies on a claim that — as I noted this morning — the government not only didn’t substantiate by citing to the call transcripts, but which the government actually provided evidence that rebuts the claim.

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.

In a NYT op-ed over the weekend, Mary McCord refuted the materiality claims made in the filing. In a WaPo op-ed, Chuck Rosenberg recites the long list of people who have already said the lies were material:

  • Donald Trump
  • Mike Pence
  • Sally Yates
  • Mary McCord
  • Mueller’s prosecutors
  • Judge Rudolph Contreras
  • Judge Emmet Sullivan
  • Mike Flynn

Sullivan has plenty before him to dismiss the DOJ’s new claims about materiality.

Still more questions about whether any of this is “new”

But there’s another problem with the motion to dismiss, one I keep coming back to. Central to the motion’s logic is that DOJ found “new” information that caused it to change its mind about the Flynn prosecution.

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.” Ex. 1 at 4, FBI FD-1057 “Closing Communication” Jan. 4, 2017 (emphases added)

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

[snip]

Based on an extensive review of this investigation, including newly discovered and disclosed information attached to the defendant’s supplemental pleadings, see ECF Nos. 181, 188-190, the Government has concluded that continued prosecution of Mr. Flynn would not serve the interests of justice.

This motion cites to two documents (one, two) from Covington that would be new to the government. The Bates numbers on both, however, indicate this was almost certainly not new production to Flynn (the belated discovery Covington turned over in recent weeks should have Bates numbers in the 600,000 range, and these have Bates’ numbers under 200,000; moreover, Covington had already turned over everything pertaining to Bijan Kian, as any discussion of Mike Jr would be). If Flynn had them, he could have submitted them last fall or in January when he made his own arguments about being railroaded — but had he done so, it would have been (further) proof Flynn perjured himself if they showed the government had made such promises, because he denied it the first time he pled guilty. Moreover, these two documents are entirely unrelated to anything in this motion, which pertains exclusively to Flynn’s lies in his January 2017 interview.

The other newly disclosed documents (the Shea motion cites the same ones twice, a hint that whoever actually wrote the motion wasn’t really relying on the documents) are all FBI documents, and so, by definition, were all in possession of the government. While DOJ might try to claim that DOJ didn’t have the documents, the documents pertain to two issues — January 23, 2017 and January 24, 2017 meetings discussing what to do about Flynn, and communications between Peter Strzok and Lisa Page — that have been repeatedly reviewed by DOJ, which means it is exceedingly likely the materials were in possession of and and had been reviewed by DOJ at least once if not several times. Moreover, the Shea motion suggests these files were previously classified, which is a tell that Shea has lost track of where the government, which controls classification, ends and Mike Flynn’s defense team begins.

Plus, in his CBS interview last week, Billy Barr confessed that John Durham has already been looking at this.

I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and ’17. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.

And that is part of John Durham, U.S. Attorney John Durham’s portfolio. The reason we had to take this action now and why U.S. Attorney Jeff Jensen came in was because it was prompted by the motions that were filed in that case. And so we had to sorta move more quickly on it. But John Durham is still looking at all of this.

If Durham received these documents anytime before November 1 (Sidney Powell first demanded such things in a letter to Bill Barr sent on June 6, 2019), then the defense of Flynn’s prosecution that Bill Barr’s DOJ submitted last November would have had an opportunity to incorporate these documents. In either case, that defense of the prosecution rebutted both claims made here. It called the investigation legitimate. It specifically rebutted the claim that Flynn had been caught in a perjury trap.

Congressional staffers were tipping Flynn about which files to demand

But Judge Sullivan has in his possession a more damning piece of proof that DOJ has been aware of these documents — and Mike Flynn’s interest in them — even before Flynn pled guilty again on December 18, 2018.  Back in October, the government submitted an exhibit of a Rob Kelner email forwarding Brandon Van Grack and Zainab Ahmad an email he received from Senate Judiciary Committee staffer, Barbara Ledeen. In it, Ledeen tells Kelner that Derek Harvey, one of the House Intelligence Committee staffers who had dug through everything they could find at DOJ to claim abuse in the Russian investigation, urged her to get Judge Sullivan to ask for Jim Comey and Peter Strzok’s HPSCI transcripts so his boss, Devin Nunes, could air the transcript on Fox News (he was also one of the Nunes staffers who met with Rudy Giuliani’s Ukrainian grifters). The government submitted as proof that this is all about ginning up the base (though they didn’t describe it in those terms).

Flynn pled guilty again after being alerted to one of the “new” documents

Flynn’s lawyer received this email five days before Flynn stated, under oath, that he knew he was giving up his right to complain about the circumstances of his interview forever.

THE COURT: Do you wish to challenge the circumstances on which you were interviewed by the FBI?

THE DEFENDANT: No, Your Honor.

THE COURT: Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed?

THE DEFENDANT: Yes, Your Honor.

And then Flynn pled guilty again.

Comey’s transcript is one of the things DOJ submitted last week to justify deviating from DOJ’s judgment on November 1, 2019, that Flynn’s prosecution was just. It doesn’t say what Harvey claimed it said, but instead says the experienced agents didn’t find Flynn exhibited any indications of deception.

And the agents — and the reason I mention their experience is because I talked to them about this — they discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.

That said, it’s proof that DOJ has long been aware of concerns about the claimed content of this and other filings relied on last week.

But that’s not why I find this email particularly damning — and worthy of further attention.

Barbara Ledeen helped Flynn to try to find Hillary’s emails; her spouse helped Flynn prep for his call with Kislyak

As noted, Barbara Ledeen is a staffer on the Senate Judiciary Committee, meaning she worked for Chuck Grassley  and now works for Lindsey Graham. She’s almost certainly the mastermind of their efforts to declassify every little thing that might undermine the Mueller investigation.

I’m fine with transparency — though given the way Ric Grenell hid Sergey Millian’s name in a transcript on the Russian investigation and given the way Bill Barr has made claims about the Flynn transcripts without declassifying them, we’re not getting it.

But Ledeen’s role goes beyond getting things that undermine Trump’s critics while hiding key facts that wouldn’t.

As the Mueller Report laid out, both she and her husband Michael play key roles in this saga. While a Senate staffer, Ledeen started searching for Hillary’s missing emails as early as 2015. She wanted to reach out via cut-outs to hostile intelligence services and ultimately claimed to have found emails on the dark web.

Barbara Ledeen and Peter Smith were among the people contacted by Flynn. Ledeen, a long-time Senate staffer who had previously sought the Clinton emails, provided updates to Flynn about her efforts throughout the summer of 2016.266 Smith, an investment advisor who was active in Republican politics, also attempted to locate and obtain the deleted Clinton emails.267

Ledeen began her efforts to obtain the Clinton emails before Flynn’s request, as early as December 2015.268 On December 3, 2015, she emailed Smith a proposal to obtain the emails, stating, “Here is the proposal I briefly mentioned to you. The person I described to you would be happy to talk with you either in person or over the phone. The person can get the emails which 1. Were classified and 2. Were purloined by our enemies. That would demonstrate what needs to be demonstrated.”269

Attached to the email was a 25-page proposal stating that the “Clinton email server was, in all likelihood, breached long ago,” and that the Chinese, Russian, and Iranian intelligence services could “re-assemble the server’s email content.”270 The proposal called for a three-phase approach. The first two phases consisted of open-source analysis. The third phase consisted of checking with certain intelligence sources “that have access through liaison work with various foreign services” to determine if any of those services had gotten to the server. The proposal noted, “Even if a single email was recovered and the providence [sic] of that email was a foreign service, it would be catastrophic to the Clinton campaign[.]”

In a sane world, Ledeen would have been fired when this all became public, not least because she engaged in some of the same kinds of behavior that the frothy right complains Christopher Steele did (given that she was pursuing these issues in her oversight role, too, it’s unclear how well this effort was bracketed off from her taxpayer funded work). Instead, she’s leading the fight to discredit the investigation into this and other efforts.

The role of Ledeen’s husband is even more notable. The first person Flynn spoke to after Russia reached out to him — even before he spoke with his Deputy, KT McFarland, was Ledeen, who was then a Transition staffer.

Russia initiated the outreach to the Transition Team. On the evening of December 28, 2016, Kislyak texted Flynn, “can you kindly call me back at your convenience.”1229 Flynn did not respond to the text message that evening. Someone from the Russian Embassy also called Flynn the next morning, at 10:38 a.m., but they did not talk. 1230

[snip]

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242

While Michael Ledeen’s call records were subpoenaed, there’s no record Mueller interviewed him about his calls or even tried.

There are many reasons to believe that little, if any, of the documents relied on last week were new to DOJ at all, especially not new since the November 2019 filing rebutting all the arguments DOJ is now making. Just as importantly, the history in this case going back years is that “new” is not a legal term, but instead a propaganda one, one designed to feed Fox News. And it’s a propaganda effort led, in part, by someone deeply, personally implicated in Flynn’s actions.

Without affirmative proof any of this is new (and DOJ has offered none), DOJ has no procedural basis to flip-flop from the position Bill Barr’s DOJ argued aggressively last year. In the past, at least, by “new” Flynn’s backers and collaborators really only meant “Fox News.”

Bill Barr Did Not Provide the Most Important Exhibit to His Mike Flynn Dismissal Motion: The Call Transcripts

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There’s a giant hole in Bill Barr’s motion to dismiss the Mike Flynn prosecution: the call transcripts of the General’s calls with Sergey Kislyak.

The Timothy Shea-signed motion claimed that the transcripts showed “arms-length communications” which provided no suggestion that Flynn might be “directed and controlled” by Russia.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2. They provided no factual basis for positing that Mr. Flynn had violated FARA. Nor did the calls remotely transform Mr. Flynn into a “viable candidate as part of the larger … umbrella case” into Russian interference in the 2016 presidential election. Ex. 1 at 3.

Significantly, Shea doesn’t cite the transcripts here! He cites the Electronic Communication opening the investigation against Flynn and the draft EC closing the Flynn case written 20 days before the Flynn interview. Moreover, he mis-cites the opening EC so as to suggest (as he does elsewhere in the memo), falsely, that Flynn was only being investigated under FARA, which usually has a public component, and not 18 USC 951, which more often does not.

This, then, is an assertion for which Barr provides no evidentiary backup.

Barr makes the assertion in a filing that includes several pieces of evidence that directly conflict with this judgment.

As I’ve noted, Mary McCord thought the idea of a call between the incoming National Security Advisor and the Russian Ambassador was “logical” until she reviewed the transcripts of the calls. “After reading them, she felt they were ‘worse’ than she initially thought,” in part because, “Flynn proactively raised the issue of sanctions.”

The Sally Yates 302 seems to suggest that as soon as Andrew McCabe read the transcripts it was clear Flynn was lying because he didn’t really engage in the conversation until sanctions came up (a view that is entirely consistent with McCord’s view, though Barr did not provide McCabe’s 302 for us to compare more directly).

This passage may also suggest that Peter Strzok and Joe Pientka did not read the full transcripts of the calls before the interview, which would explain why they might have relied on whether Flynn gave indications he was lying. If that’s true, it would also undermine other key claims made in this motion, most notably that the agents knew everything the transcripts said.

As for Yates herself, she provided Don McGahn several reasons why she believed these transcripts were troubling. Part of that description, as well as two of the examples she provided to substantiate the description, are redacted.

But Yates is specific: the “back and forth” between Kislyak and Flynn was contrary to the descriptions Flynn had offered publicly about the calls. Importantly, Yates’ description rebuts the Shea motion’s claim that this was an “arms-length” conversation.

Which is to say, in a key passage dismissing the possibility that the call transcripts included evidence that Flynn might have a relationship with Russia that could damage national security, the motion provides no evidence and in fact mis-cites something inapt as proof. But elsewhere, the filing does provide evidence about the call transcripts, and that evidence directly refutes the claim. Moreover, the filing redacts a number of other passages that go directly to the claim.

Importantly, whether or not the transcripts showed some reason to think Flynn’s relationship with Russia might affect national security is not an issue that Barr can invoke exclusive Executive judgment on, something on which judges generally defer to the Executive. The record shows that two Acting Attorneys General — one (Rod Rosenstein) appointed by Trump — already deemed the transcripts to include such evidence. Here, Barr isn’t even on the record making the claim. Just an Acting US Attorney who has not been Senate confirmed is.

A year ago, Judge Emmet Sullivan ordered the government to provide the transcripts of the calls between Flynn and Kislyak.

The government is hereby ORDERED to file on the public docket in this case the transcript of the “voicemail recording” referenced in the 75 Addendum to Government’s Memorandum in Aid of Sentencing and the transcripts of any other audio recordings of Mr. Flynn, including, but not limited to, audio recordings of Mr. Flynn’s conversations with Russian officials, by no later than May 31, 2019.

In response, the government obliquely said no, because they were not relying on those recordings for sentencing, effectively pointing out that no claims entered into evidence had relied on the transcripts (by the time Flynn pled guilty, he himself had provided evidence that he lied, and so they didn’t need to rely on the transcripts).

The government further represents that it is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record.

Now, however, the transcripts are utterly central to the claims the government is making. Indeed, the only evidence about the transcripts submitted with this motion rebuts the government’s claim.

Emmet Sullivan would be totally within his authority to require the government to provide the actual evidence on which they make at this point unsubstantiated claims in this filing.

Mike Flynn has been demanding these transcripts for quite some time. Given the declassification spree that Barr and Ric Grenell have been on, I would imagine they would have been made public if they helped Flynn at all. So I’m guessing Yates and McCord provided a more accurate description of these transcripts than Timothy Shea.

The Logan Act Is Just the Cherry on Mike Flynn’s Foreign Agent Sundae

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There’s an ironic line in Billy Barr’s CBS interview this week, where he acknowledges that prosecutors can become too wedded to a particular outcome.

These are very smart people who were working in the special counsel’s office, and in senior levels of the FBI. So what drove them here?

Well, I think one of the things you have to guard against, both as a prosecutor and I think as an investigator, is that if you get too wedded to a particular outcome and you’re pursuing a particular agenda, you close your eyes to anything that sort of doesn’t fit with your preconception. And I think that’s probably the phenomenon we’re looking at here.

That’s because Barr and Sidney Powell have the frothy right chasing the Logan Act like six year olds after a soccer ball as if that was the only basis to interview Mike Flynn on January 24, 2017. It’s unclear whether frothy commenters have been duped by Barr’s guile, or they just haven’t read the record.

The record is crystal clear, however: When the investigation into Mike Flynn was opened on August 16, 2016, he was being investigated as a witting or unwitting Agent of a Foreign Power (Barr’s DOJ — and DOJ IG — have both made the same error in suggesting this was just about FARA, but the investigation was also predicated under 18 USC 951). Timothy Shea conceded in his motion to dismiss the prosecution that that investigation was never closed. And evidence from three different contemporaneous witnesses — Jim Comey, Mary McCord, and Bill Priestap — say that’s why the FBI interviewed Flynn on January 24, 2017.

Bill Priestap made clear that they did this interview to find out whether Flynn was acting as an agent for Russia.

The FBI’s provided rationale for doing the interview was that the existence of the investigation had already leaked, so Flynn was already aware that the information was being discussed publicly and there was no element of surprise. Priestap told the group the goal of the interview was whether to determine whether or not Flynn was in a clandestine relationship with the Russians.

That’s what Comey said, too.

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 Priestap notes that the frothy right is pointing to as proof of abuse makes quite clear that the point of the interview was not to create a perjury trap, but to see whether Flynn would be honest about his relationship with the Russians.

Bob Litt, who (per these same records) was the first person to raise the Logan Act, analyzed the ways that Timothy Shea’s motion conflicts with the FBI’s DIOG. He described the interview to be, first and foremost, about counterintelligence.

The attorney general and his minions are making the astounding argument that when the FBI—aware of extensive Russian interference in U.S. politics in order to benefit the Trump campaign—learned that the incoming national security advisor requested that Russia not respond to the sanctions that were imposed in response to that interference and then lied to other government officials about that, it could not even “collect information or facts to determine” whether this created a counterintelligence threat. This cannot be right. Even if the prior investigation into Flynn had been closed, which it had not, these circumstances at a minimum justified an assessment under standard FBI policy.

In fact, the department’s motion virtually concedes the point. It dismisses Flynn’s lies to Pence and Spicer by saying that “[h]ad the FBI been deeply concerned about the disparities between what they knew had been said on the calls and the representations of Vice President Pence or Mr. Spicer, it would have sought to speak with them directly, but did not.” But that would be a kind of investigative activity, and under the DIOG, either the FBI has a basis to investigate or it doesn’t. If the facts justified talking to Pence about Flynn, they justified talking to Flynn.

Once you have a predicated investigation into 18 USC 951, adding another potential crime (the Logan Act) does not change that the investigation into 18 USC 951 remained, per Shea, ongoing.

In his interview, Barr misrepresents the record to claim what Flynn did — undermining the punishment imposed on a hostile foreign country after they attacked us — was “laudable.”

They did not have a basis for a counterintelligence investigation against Flynn at that stage, based on a perfectly legitimate and appropriate call he made as a member of the transition. So.

[snip]

Let me say that, at that point, he was the designated national security adviser for President-Elect Trump, and was part of the transition, which is recognized by the government and funded by the government as an important function to bring in a new administration. And it is very typical, very common for the national security team of the incoming president to communicate with foreign leaders.

And that call, there was nothing wrong with it whatever. In fact, it was laudable. He– and it was nothing inconsistent with the Obama administration’s policies. And it was in U.S. interests. He was saying to the Russians, you know, “Don’t escalate.” And they asked him if he remembered saying that, and he said he didn’t remember that.

There are several problems with this claim.

For starters, at first, Mary McCord agreed with this take. She dismissed the call for the same reasons Barr still does — that this was just the typical communication between an incoming national security team and foreign leaders.

Two things changed her mind.

The first was the evidence that Flynn was lying about what he did to others in the incoming Administration.

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.

It is normal for officials in incoming Administrations to reach out to foreign leaders. But it is not the norm for incoming officials to freelance, to set policy that no one else in the Administration knows about. And the public evidence at the time the FBI interviewed Flynn was that he had done this on his own and was actively hiding it form his colleagues (as indeed the current record says he was).

The record that Barr distorted in this interview shows that FBI was in a holding pattern until there was public evidence that Flynn had lied to others in the Administration, which not only changed the calculus about warning the Administration, but created urgency to take an investigative step FBI might not otherwise have done.

The other thing that changed McCord’s mind about whether this was the normal pre-inauguration outreach was reading the transcript.

After reading them, she felt they were “worse” than she initially thought; she noted that her recollection of them is that Flynn proactively raised the issue of sanctions, and she feels it is hard to believe he would forget talking about something he raised himself.

Sally Yates described Flynn make a series of asks, some of which remain classified.

And McCord wasn’t the only one who responded that way. Once Mike Pence and Reince Priebus read the transcripts, Flynn was out the door the next day.

Notably, even though Ric Grenell is in the middle of a declassification spree, neither he nor Barr have chosen to declassify the actual transcripts here, even though Flynn has requested them repeatedly. Barr’s DOJ is also withholding other details that would describe the reaction of Administration officials to reading the transcript in the Buzzfeed FOIA. So it’s easy for Barr to claim this was normal, but a career prosecutor who read the transcripts said they weren’t, and Barr is deliberately withholding information that would let us test that claim.

This is why DOJ’s materiality argument fails, too. Had Flynn told the truth, the FBI might have had reason to treat this as the normal pre-inauguration contact. But once he lied, the FBI had more reason to continue investigating, to try to figure out why he lied. All the more so given that Flynn was hiding his other Foreign Agent relationship with Turkey at the time.

If Flynn’s behavior were, as Barr claims, “laudable,” then he would have simply admitted it. Once he lied about it, the FBI had more reason to suspect he had been freelancing, deliberately undermining American policy without the sanction and knowledge of others in the Trump Administration.

Only one thing explains Barr’s view, and it is damning. The FBI had reason to investigate anyway, and as Litt correctly lays out, these actions were solidly within the guidelines laid out in the FBI’s Domestic Investigations and Operations Guide. But the only way to conclude, as Barr has, that Flynn’s actions — calling up the Russian Ambassador and telling him not to worry about the sanctions imposed for helping Trump get elected — are not clear cut evidence that he was clandestinely operating as an Agent of Russia is if Trump told him to do it.

That doesn’t make it laudable. But it is as close as we’ve ever come to an admission that Flynn did this not just with the knowledge of, but on orders from, Trump. That’s probably why Trump is boasting about learning from Nixon right now: Because unlike Nixon, he got away with cheating to win an election.

Judge Sullivan Has Already Rejected Most of Timothy Shea’s DOJ Flynn Pardon

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In this post, I laid out how Acting DC US Attorney Timothy Shea claimed DOJ had “newly” acquired a bunch of information which led it to decide to ask Judge Emmet Sullivan to dismiss Mike Flynn’s prosecution.

Except none of the information was new.

The table below shows what is known about the documents Shea relied on yesterday, using the exhibit numbers from DOJ’s filing. Some were already public, another had been provided to Flynn, others were probably reviewed in investigations of the circumstances of Flynn’s interviews (as explained below). It’s hard to square Shea’s claim that some of this was newly declassified, as most things that had once been classified had already been declassified publicly (and DOJ reclassified two lines from an Andrew McCabe memo, while declassifying a few more lines of it). Other documents were generated as part of this investigation, and so could in no way be deemed “new” to the prosecutors who generated them (nor to Rod Rosenstein, who approved Flynn’s prosecution). As for the rest, Flynn asked for them last year as part of a Brady motion, and Sullivan rejected those requests in a meticulous 92-page opinion written in December.

Effectively, then, Bill Barr appointed Jeffrey Jensen to “review” Flynn’s prosecution for one purpose: to override Judge Sullivan’s Brady decision last December.

As I keep repeating, it’s never a good idea to predict what Judge Sullivan will do. I expect he’ll review these exhibits closely and see whether they change his mind about DOJ’s representations that none of them were helpful to Flynn. He might find the Bill Priestap notes troubling, but that document is not only deliberative (and therefore always excluded from Brady), but it states clearly that, “our goal is to determine if Mike Flynn is going to tell the truth about his relationship w/Russians,” a goal Sullivan has already deemed proper.

It’s possible, however, that Sullivan will view these documents and recognize that they don’t change the order he already issued, finding Flynn’s lies material and his prior guilty pleas still valid. If he does, he may well be peeved that DOJ tried to overturn a judge’s ruling by bureaucratic fiat.

DOJ may not have had two FBI documents

There are just two documents that DOJ probably wouldn’t have already had or reviewed. One is a draft memo closing the investigation into Flynn. The other is the Jim Comey transcript briefing the House Intelligence Committee on the Flynn investigation. Because the former was an FBI document, it’s not clear it would ever have made it into DOJ files. And it dates to earlier than the Brady requests Flynn made last year. That said, the fact that FBI had decided to close out the investigation up until they discovered Flynn’s calls with Sergey Kislyak was public before Flynn pled guilty a second time, when he swore that he had no concerns about Brady. And the circumstances surrounding the non-closure of this investigation made it into 302s otherwise accounted for.

As to the Comey transcript, DOJ said it did not have an unredacted copy of this last year. But like the draft closure, the facts in it have long been public, most notably in the House Intelligence Report on their Russian investigation, which was done nine months before Flynn pled guilty again.

DOJ reviewed Page-Strzok texts and the meetings before and after Flynn’s interview

One of the things DOJ submitted as “new” information yesterday were Page-Strzok texts. We already know that DOJ IG reviewed every one of those, some of them multiple times, particularly if they pertained to Flynn or other Trump people.

As noted, documents pertaining to meetings before and after Flynn’s interview would likely have been reviewed by DOJ already, because DOJ repeatedly chased down allegations made about those meetings. Flynn already got an FBI Inspection Division 302 reflecting Peter Strzok being interviewed about some of these allegations and a Mueller 302 reflecting Lisa Page being interviewed about other ones. The government repeatedly looked into allegations that Andrew McCabe said, “First we fuck Flynn, then we fuck Trump,” at the meeting preparing for the Flynn interview (which is presumably what these notes record).

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.

In fact, Bill Priestap’s notes of what appear to be the McCabe meeting show no such claim. He does reflect them talking about how to deal with Flynn’s comments. But they record no reference to Trump.

Emmet Sullivan reviewed two of these 302s

Of particular note, Emmet Sullivan already reviewed several of these documents. In his Brady opinion from December, he described an in camera review he did in December 2018, in part to make sure the summaries of the Mary McCord and Sally Yates 302s was adequate disclosure.

As to Requests a through f and Request i, the government has provided Mr. Flynn with: (a) “information from interviews with [Mr.] McCabe that could reasonably be construed as favorable and material to sentencing”; (b) “information that could reasonably be construed as favorable and material to sentencing about such pre-interview discussions, including the language quoted in the request”; (c) “information about such post-interview debriefings that could reasonably be construed as favorable and material to sentencing”; (d) “information from former [Principal] Associate Deputy Attorney General Matthew Axelrod’s interview report that could reasonably be construed as favorable and material to sentencing”; (e) “information from [Ms.] McCord’s interview report that could reasonably be construed as favorable and material to sentencing, including the information quoted in the request”; (f) “information from [Ms.] Yates’ interview report that could reasonably be construed as favorable and material to sentencing, including the information quoted in the request”;

[snip]

Based on an in camera review of the government’s sealed submissions to the Court on December 14, 2018, see, e.g., Min. Order of Dec. 17, 2018; Gov’t’s Opp’n, ECF No. 122 at 16 n.8; Gov’t’s Notice of Disc. Correspondence, ECF No. 123 at 3, the Court agrees with the government that the requested information in Requests a through f and Request i has already been provided to Mr. Flynn in the form of appropriate summaries, see Gov’t’s App. A, ECF No. 122-1 at 6-7.

Given that Sullivan accounted for these documents, his materiality analysis is unlikely to change

As noted, Sullivan might decide that some of these documents should have been provided under Brady, in spite of his ruling on them. But unless he does, it’s unlikely his view on the materiality of Flynn’s lies will change, contrary to the footnote in Shea’s memo yesterday.

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.

That’s because Sullivan knew when he wrote his opinion that FBI had almost closed the investigation of Flynn but reopened it after learning of Flynn’s comments to Kislyak. There’s nothing about this discussion that would change given what was disclosed yesterday.

Mr. Flynn argues that his false statements to the FBI were not “material” for two reasons. See Def.’s Reply, ECF No. 133 at 31-32. First, Mr. Flynn contends that his conversations with the Russian Ambassador were unrelated to the FBI’s investigation into Russia’s efforts to interfere in the 2016 presidential election because the interviewing FBI agents did not ask him a single question about election interference or any coordination between Russia and the Trump campaign. See id. Next, Mr. Flynn argues that the FBI had recordings and transcripts of his conversations with the Russian Ambassador, arguing that the FBI “knew exactly what was said” and “nothing impeded [the FBI’s] purported investigation.” Def.’s Sur-Surreply, ECF No. 135 at 12. The government responds that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s “counterintelligence investigation into whether individuals associated with the campaign of then candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election.” Gov’t’s Surreply, ECF No. 132 at 10.

[snip]

Mr. Flynn has a fundamental misunderstanding of the law of materiality under 18 U.S.C. § 1001(a)(2), which requires a false statement to be “material.” United States v. Stone, 394 F. Supp. 3d 1, 12 (D.D.C. 2019) (materiality is a necessary element to establish a violation of the false statements statute). The Supreme Court has instructed that “[t]he statement must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.’” United States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); accord United States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979) (“Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects.”). But “a statement need not actually influence an agency in order to be material.” Moore, 612 F.3d at 701.

As a matter of law, the government need not prove that Mr. Flynn’s false statements impeded the FBI’s investigation in order to establish the materiality element. See id. at 702 (holding that defendant’s false statement “was capable of affecting the Postal Service’s general function of tracking packages and identifying the recipients of packages entrusted to it” and defendant’s false information “could have impeded the ability of the Postal Service to investigate the trafficking of narcotics through the mails”). And Mr. Flynn’s multiple false statements were material regardless of the interviewing FBI agents’ knowledge of any recordings and transcripts of his conversations with the Russian Ambassador—the existence or nonexistence of which have neither been confirmed nor denied by the government, see Gov’t’s App. A, ECF No. 122-1 at 5—and whether the FBI had knowledge of Mr. Flynn’s exact words during those conversations. See United States v. Safavian, 649 F.3d 688, 691 (D.C. Cir. 2011) (rejecting 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”).

Mr. Flynn’s other argument—that his false statements about his conversations with the Russian Ambassador were not related to the investigation into Russia’s efforts to interfere in the election—is unavailing. “Application of § 1001 does not require judges to function as amateur sleuths, inquiring whether information specifically requested and unquestionably relevant to the department’s or agency’s charge would really be enough to alert a reasonably clever investigator that wrongdoing was afoot.” United States v. Hansen, 772 F.2d 940, 950 (D.C. Cir. 1985). Here, Mr. Flynn’s false statements to the FBI about his conversations with the Russian Ambassador were relevant to the FBI’s inquiry. See SOF at 1 ¶ 1. It is undisputed that the FBI had already opened the investigation to, among other things, investigate the “nature of any links between individuals associated with the [Trump] Campaign and Russia” at the time of Mr. Flynn’s January 24, 2017 interview. Id. A “lie distorting an investigation already in progress” could impact the FBI’s decision to act and follow leads. Hansen, 772 F.2d at 949; accord United States v. Stadd, 636 F.3d 630, 639 (D.C. Cir. 2011) (defendant’s false statements were material because the truth “would have raised red flags that would have led [the agency’s ethics advisor] to inquire further”). As Judge Amy Berman Jackson has noted, “it is axiomatic that the FBI is not precluded from following leads and, if warranted, opening a new investigation based on those leads when they uncover information in the course of a different investigation.” Kelley v. FBI, 67 F. Supp. 3d 240, 287 n.35 (D.D.C. 2014). The Court therefore finds that Mr. Flynn’s false statements were material within the meaning of 18 U.S.C. § 1001(a)(2).

It’s hard to look at the extensive record of the discussion about whether Flynn had lied submitted yesterday and not conclude that they presented DOJ with some real conflict about the investigation. Moreover, Comey’s comments, which preceded a number of investigative steps (like obtaining Flynn’s call records and interviews with KT McFarland and others), show that the investigation changed as it developed more proof that Flynn had knowingly lied.

When Flynn tried to get this information, Sullivan reminded him he had already sworn it didn’t matter

Finally, Shea’s silence about Flynn’s plea allocution before Sullivan is particularly damning given that Sullivan addressed it in his Brady motion in December. He pointed out that Flynn had already sworn, under oath, that he was not challenging the circumstances of his interview.

Six days later, on December 7, 2017, the case was randomly reassigned to this Court, which scheduled a sentencing hearing for December 18, 2018. During that hearing, the Court conducted an extension of the plea colloquy in view of statements made in Mr. Flynn’s sentencing memorandum that raised questions as to whether Mr. Flynn sought to challenge the circumstances of his FBI interview. In response to the Court’s questions, Mr. Flynn maintained his plea of guilty upon the advice of counsel. Mr. Flynn neither challenged the conditions of his FBI interview nor expressed any concerns with the government’s obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and this Court’s Standing Brady Order of February 16, 2018.

[snip]

Finally, the Court summarily disposes of Mr. Flynn’s arguments that the FBI conducted an ambush interview for the purpose of trapping him into making false statements and that the government pressured him to enter a guilty plea. The record proves otherwise. See, e.g., Def.’s Br., ECF No. 109 at 4 (arguing that the government was “putting excruciating pressure on [Mr. Flynn] to enter his guilty plea”); Def.’s Reply, ECF No. 133 at 5 (arguing that “high-ranking FBI officials orchestrated an ambush-interview . . . for the purpose of trapping him into making false statements they could allege as false”); id. at 6 (asserting that the FBI and others “plot[tted] to set up an innocent man and create a crime”); id. at 18 (contending that “[t]he FBI had no factual or legal basis for a criminal investigation” and that the FBI’s investigation was a “pretext for investigating Mr. Flynn”); id. at 27 (arguing that “Mr. Flynn was honest with the [FBI] agents to the best of his recollection at the time, and the [FBI] agents knew it”).

The sworn statements of Mr. Flynn and his former counsel belie his new claims of innocence and his new assertions that he was pressured into pleading guilty to making materially false statements to the FBI. E.g., Sentencing Hr’g Tr., ECF No. 103 at 11 (affirming it was not his “contention that Mr. Flynn was entrapped by the FBI”); id. (affirming that “Mr. Flynn’s rights were [not] violated by the fact that he did not have a lawyer present for the interview”); Plea Agreement, ECF No. 3 at 10 (“I fully understand this [Plea] Agreement and agree to it without reservation. I do this voluntarily and of my own free will, intending to be legally bound.”); Plea Hr’g Tr., ECF No. 16 at 29 (affirming that no one “forced, threatened, or coerced [Mr. Flynn] in any way into entering this plea of guilty”). And it is undisputed that Mr. Flynn not only made those false statements to the FBI agents, but he also made the same false statements to the Vice President and senior White House officials, who, in turn, repeated Mr. Flynn’s false statements to the American people on national television. See Gov’t’s Surreply, ECF No. 132 at 8.

Just six months ago, Emmet Sullivan examined the substance of the arguments that DOJ claims are new. He not only found that they did not affect Flynn’s guilty plea, but he reminded Flynn that Flynn already stated, under oath, that none of the things DOJ raised yesterday change that he was guilty of lying to the FBI.

Exhibits

August 16, 2016: Opening Executive Communication for Flynn investigation (Exhibit 2)

The FBI opened a full investigation into Mike Flynn to figure out whether he was wittingly or unwittingly being run by the FBI that might constitute a federal crime or pose a threat to national security. It listed FARA and 18 USC 951 as the crimes under investigation. This document was created as part of this prosecution. Flynn asked for this last year.

January 4, 2017: Draft Closing Communication closing investigation into Mike Flynn (Exhibit 1)

This reviews the investigative steps taken against Flynn, noting that the investigative team did not presume Flynn was an Agent of a Foreign Power, which limited the investigative steps significantly. Based on those steps, however, the FBI was closing the investigation. Timothy Shea does not contest that this was never finalized.

January 4, 2017: Emails between Jim Baker, Lisa Page, and Peter Strzok about the Logan Act (Exhibit 8)

These emails show FBI was discussing the Logan Act in the wake of discovering the Flynn interview. They don’t show that that was the only thing they discussed (and the public record makes clear it was not the only thing discussed). This discussion is reflected in 302s generated by the Mueller investigation. These documents would be included in the requests Flynn made last year.

January 4 through February 10, 2017: Texts involving Peter Strzok (Exhibit 7)

These texts include ones between Peter Strzok and the agents in charge of the Flynn investigation, asking them not to close it out. It includes texts between Strzok and Page about whether or not the investigation was closed out, and showing that Page had edited the 302. The Page-Strzok texts, by definition, were reviewed by DOJ IG. But the ones pertaining to the edit were actually less interesting than some previously released ones. Other texts were likely reviewed as part of the three investigations into the circumstances of Flynn’s interview. Flynn asked for these last year.

January 21 through 23, 2017: Emails involving Peter Strzok, Lisa Page, and others (Exhibit 9)

These emails capture the discussions about what to do about Flynn in the days before his interview, including brainstorming how they would respond to questions he might ask and whether they’d give him a False Statements admonishment. These emails were likely reviewed as part of the multiple reviews of the circumstances of Flynn’s interview. Flynn asked for these last year.

January 24, 2017: Bill Priestap notes on goals for the Mike Flynn interview (Exhibit 10)

These notes reflect a discussion about what investigative goals FBI had for the Flynn interview. Given that they seem to record Andrew McCabe’s statements, they were almost certainly reviewed in the multiple reviews of this meeting. Flynn asked for these last year, alleging they recorded Andrew McCabe saying “First we fuck Flynn, then we fuck Trump.”

January 24, 2017: A version of notes Andy McCabe took when he called up Flynn about an interview (Exhibit 11)

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.

Obviously, Flynn has had this document since before he pled guilty the second time, and swore under oath that it did not change his guilty plea.

January 24, 2017: FBI Agents’ notes (Exhibit 12)

These were made public in Flynn exhibits in October (actual Pientka, actual Strzok). Sullivan conducted extensive analysis of these notes last year, demonstrating that, contrary to Sidney Powell’s claims, the false statements recorded in every version of Flynn’s 302s are consistent with the notes.

February 14, 2017: 302 from January 24, 2017 interview with Mike Flynn (Exhibit 6)

Flynn has had this since before he pled guilty. It is actually a more redacted version than the most recent one released in the BuzzFeed FOIA. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making.

March 2, 2017: House Intelligence Committee interview with Jim Comey (Exhibit 5)

This interview provides one version of how Comey decided to send FBI Agents to interview Flynn. It also includes a line — which has been egregiously misrepresented — describing how that FBI Agents thought Flynn was a credible liar. The Comey interview came before some other investigative steps would have made even more clear that Flynn had knowingly lied to the FBI. While this transcript had never been made public, the substance of it has long been public, including in the House Intelligence Committee Report on Russia.

July 17, 2017: 302 of FBI interview with Mary McCord (Exhibit 3)

This describes the FBI going through her notes with Mary McCord, who was Acting National Security Division head during the transition and beginning of the Trump Administration. The interview includes damning information making it clear that the Trump Administration tried to quash this investigation. It makes clear that the FBI interviewed Flynn to assess whether he was working for Russia as a clandestine Foreign Agent. In fact, Flynn asked for it because of what it said about him being a Foreign Agent, and on that basis, Sullivan judged it to be irrelevant to his plea for False Statements, and judged that a summary Flynn received before he pled guilty a second time was sufficient. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making.

July 19, 2017: 302 of FBI interview with Peter Strzok (Exhibit 13)

The FBI interviewed Strzok to understand how DOJ and FBI dealt with the Flynn prosecution. It was originally shared with Judge Sullivan in unredacted form at the 2018 sentencing and has been released in this form since then, twice. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making. Flynn had it before pleading guilty the second time, and swore under oath it did not affect his guilty plea.

August 15: 302 for FBI interview with Sally Yates (Exhibit 4)

This interview describes Yates’ understanding of how the investigation into Flynn started. While she describes the conflict between FBI and DOJ, she also makes it clear that she never questioned the seriousness of what Flynn had done. Obviously, this document was generated as part of Flynn’s prosecution, and would have been considered as part of the prosecutorial decision-making. Flynn got a summary of this before he pled guilty the second time, a summary that Sullivan said was sufficient. But he asked for it again last year.

Ric Grenell Declassified George Papadopoulos’ Brags about Fucking Older Women, but Not about Befriending Sergey Millian

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In the name of exposing “FISA abuse,” Lindsey Graham got Ric Grenell to declassify details of George Papadopoulos bragging about fucking a woman who was 42.

CT: I was banging a 42-year-old. That’s the oldest I ever went. And she was the best sex I ever had in my life.

CHS: You know you can’t, uh, knock down them…

CT: But 42, that’s like borderline old, you know.

But Grenell left what DOJ IG treated as a reference to Sergey Millian living in Brooklyn classified (see page 66).

Grenell did so even though this reference to “Sergey” has already been formally declassified, for the DOJ IG Report (though I would argue that in places DOJ IG’s transcriptions are not always fair descriptions of what the transcripts show).

Papadopoulos did not say much about Russia during the first conversation with Source 3, other than to mention a “friend Sergey … [who] lives in … Brooklyn,” and invite Source 3 to travel with Papadopoulos to Russia in the summertime.

Perhaps this just stems from bureaucratic incompetence. But the Trump Administration made a fairly aggressive decision to declassify details about Sergey Millian for the DOJ IG Report because it served their narrative about Christopher Steele. But when it came time to claim–abundant evidence in the transcripts to the contrary–that George Papadopoulos wasn’t an obvious subject for a counterintelligence investigation, the Trump Administration treated one of the most damning details as classified.

This matters, because the frothy right has been ginning up a scandal over the delayed release of the House Intelligence transcripts, and the fact that, having been told everything is ready, Adam Schiff is taking a few days to review what Grenell has done to ensure the integrity of the redactions. They’re doing so even as both Mark Warner and Richard Burr spent the beginning of John Ratcliffe’s confirmation making sure the declassification of their report on the Russian operation would be quick and non-partisan.

But we’ve already got hints that Grenell is politicizing the declassification process. In a 90-page transcript, he redacted the detail that most undermined the frothy right narrative.

Covid-19 and Class Structure

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The Covid-19 pandemic demonstrates the class structure of the US. I’ve written several posts on the issue of class in the US, but most such analysis takes an index of some kind, wealth, education, income, and places people sequentially, then divides the line into groups which are called classes. For example, in this post I described Thomas Piketty’s classes based on wealth.

I discussed a modern Marxian class structure analysis here. Class is defined in terms of social and ownership relationships. Typically we think of three classes, the capitalists, the workers, and a small class of professionals and artisans who own their own means of production and work for themselves, but are to some extent dependent on the capitalist class. [1] This simple structure leads to difficult problems for people trying to use the analysis for social change.

1. In a large corporation, those at the bottom of the hierarchy own nothing but their labor and can only survive by selling that labor. They have little, if any, control over their working conditions. They are subject to the orders of those above them in the hierarchy. In higher levels of the hierarchy workers have limited control over the means of production, and have the power to control the actions of their subordinates. In even higher reaches, people achieve actual control over the means of production and control the actions of larger numbers of people. At the top are people who control the means of production through their power to direct their subordinates. In this more complex setting, the boundaries of class are blurred, and it is easy for people to misunderstand their position in the class structure.

It’s also difficult for people to understand that the problems they face in their jobs are common across all jobs. It isn’t just your boss who’s a jerk, your employer who has appalling policies on health care, sick leave, vacation and day-to-day irritations. Everyone faces those issues.

2. People don’t understand that capitalists exploit workers. This chart shows that the share of national income going to the labor sector has trended down since 1960. It dropped dramatically and stayed low during the last 20 years. That loss goes to the rich. I discuss the way in which capitalists justify this exploitation in this post.

3. Most people do not understand how they are exploited operationally, because everything they experience seems natural. That’s because capitalists exercise substantial control over the public understanding of issues of political economy. Their version of business history dominates. Their theory of economics, neoliberalism, is not threatened by any widespread alternative. Their concept of the role of government has controlled since the 1950s. They have an out-sized input into our choices for political office in both legacy parties. They have used that power to hold onto and increase their power.

But.

This pandemic has the potential to wake people up from their torpor. This article by Robert Reich is a good starting point. Reich identifies four classes defined in relation to the lockdown.

A. The Remotes: “…professional, managerial, and technical workers – an estimated 35% of the workforce” who are working and reasonably well-paid. They are largely unaffected by the lockdown.

B. The Essentials: the people who are required to go to their workplaces despite the lockdown, including health care workers, care-givers, farm workers, meat packers, grocery store and pharmacy employees, employees of gun stores and liquor stores.

C. The Unpaid: the non-essential workers who are now unemployed and subjected to lockdown, about 25% of the work force. Most of them lost their health insurance as well as their income, and face an unpleasant future.

D. The Forgotten: those “…for whom social distancing is nearly impossible because they’re packed tightly into places most Americans don’t see: prisons, jails for undocumented immigrants, camps for migrant farmworkers, Native American reservations, homeless shelters, and nursing homes.” The lockdown doesn’t affect them, as their lives sucked already.

Reich doesn’t mention the Fifth Class, those who are largely unaffected by the lockdown. This group has two segments. One is retirees and those near retirement, who presumably have the income and assets they need and to maintain their lifestyles. They have Medicare, stable housing, access to grocery stores and pharmacies, and generally can shelter in place with no discomfort. The second segment is people who have so much money they are not at all affected. They can just hop on their private jets and come and go as before, maybe with fewer people to serve them drinks.

The Covid-19 pandemic has sharpened the blurred lines described in Point 1. There are only two groups: the Reomoters and the Fifth Class who can can stay home and protect themselves; and the Essentials and the Unpaid. The Essentials who can’t stay home, and are at risk of serious illness and death, with whatever insurance they can cobble together. The Unnpaid are unprotected from financial ruin. The serious risks facing the Essentials and the Unpaid are the same across all jobs.

The exploitation described in Point 2 is now in the open. The rich and their politicians value capital over the lives and well-being of the Essentials and the Unpaid. First, capitalists were heavily subsidized by the Fed and Congress, Second, politicians are granting the demands of the capitalists to reopen the economy and shield them from liability if they don’t protect their workers from deadly illness. Republicans force people to choose between working for the rich or protecting their health at the cost of their unemployment benefits and their life savings.

The domination of discourse raised in Point 3 has been eroded by the rise of the political rhetoric of Sanders, Warren, and others. A large number of working people of all incomes don’t accept the assertions of the rich and their media giants as gospel. They can see the impact of Covid-19 on themselves and everyone they know. They can read about the problems faced by other workers, and see that they are in the same position.

The practical outcome? Workers at a number of giant corporations are planning a work action for May Day.

“It’s more powerful when we come together,” Chris Smalls, a lead organizer of the May 1 walkout, who was fired from Amazon’s Staten Island fulfillment center after staging a walkout on March 31, told Motherboard. “We formed an alliance between a bunch of different companies because we all have one common goal which is to save the lives of workers and communities. Right now isn’t the time to open up the economy. Amazon is a breeding ground [for this virus] which is spreading right now through multiple facilities.”

The strikers are asking consumers to boycott Amazon, Whole Foods, Instacart, Walmart, FedEx, Target, and Shipt. They say that many of the workers will walk out, call in sick, or take other action. Their demands are astonishingly minimal: personal protective gear, paid sick leave, hazard pay, and a few company specific needs.

The Essentials and the Unpaid are forced to risk their health and their finances so the Remoters and the Fifth Class can live comfortably. That’s a concrete way of showing people their position in the class structure. Where are the politicians and media people capable of articulating this so everyone gets it?

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[1] In this post, I use the term “capitalist” to mean the top .1% in wealth and the top managers of the largest businesses. It’s useful here where the basis of the analysis is more or less Marxist, but I’m ambivalent about it because I’m not particularly a Marxist. I’m just a guy who reads books. I usually use the term “filthy rich” which my mother loved, but it seems perjorative.