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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is a bit of intrigue in this last bit.

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

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

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

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

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

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

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

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

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

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

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

And it’s still going.

 

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

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

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

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

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

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

Make Trump name Flynn’s crimes

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

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

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

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

Trump won’t show, of course.

Until he is made to, after January 20th.

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

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

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

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

They won’t show, of course.

Until they are made to, after January 20th.

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

Force DOJ to explain what went into the altered documents

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

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

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

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

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

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

Identify who wrote the pardon

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

Judge Sullivan should identify everyone who had a role.

[Fourth item added after the original post.]

Trump Attempts to Invalidate the Mueller Investigation

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

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

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

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

I’ll explain how on January 21.

The Trump Team Covered Up Flynn’s Calls in Real Time

I’ve been asked to write a summary of the Mike Flynn case. This will be a series covering the following topics:

  • Proof that Flynn and others were trying to hide his calls in real time
  • The basis for the investigation into Flynn
  • Known details of the investigation
  • Bill Barr’s efforts to dismantle the Flynn prosecution

Jared Kushner and KT McFarland lie in real time about Flynn’s calls

To understand the circumstances behind the Mike Flynn investigation, prosecution, Barr interference, then pardon, it helps to understand that Flynn and others built cover stories, in real time, both of the times that their efforts to get Russia to help them undermine President Obama’s policies succeeded.

For example, on December 22, after receiving a tip from a Senate staffer, Jared Kushner called Flynn and “directed [him] to contact officials from foreign governments, including Russia, to learn where each government stood” on an Egyptian resolution condemning illegal Israeli settlements, asking that they delay the vote or condemn the resolution. At about the same time, Trump tweeted a statement calling for a veto of the measure. Shortly after Jared’s call and Trump’s tweet, Flynn called Sergey Kislyak, then called an Egyptian contact, then spoke to Kislyak, then called the Egyptian contact several more times. After those calls, Trump and Abdel Fattah el-Sisi spoke, after which el-Sisi released a statement withdrawing the UN motion, describing a call with Trump in which, “They have agreed to lay the groundwork for the new administration to drive the establishment of a true peace between the Arabs and the Israelis.” After that statement, Jared pushed to release a statement falsely claiming the Egyptians initiated the calls.

Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact patter and better for this to be out there.

The Transition spokesperson ultimately did release a statement falsely claiming that, “Mr. Sisi initiated the call.”

Jared hid the real sequence of their intercession in real time.

The Trump Administration continues to hide the substance of Flynn’s call with Russia that day. Although Ric Grenell had most of the transcripts of Flynn’s calls with Sergey Kislyak released, he had his December 22 call transcript withheld. The transcript from a call that Kislyak initiated the following day, however, shows that after consulting with “the highest level in Russia,” Kislyak conveyed to Flynn that Russia would push for more consultations that would delay the vote.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia. Secondly, uh, uh, here were are pointing, uh, taking into account, uh, entirely your, uh arguments.

Flynn: Yes.

Kislyak: To raise a proposal or an idea of continued consultations in New York. We will do it.

Notably, at the end of December 22, KT McFarland was happy to claim credit privately for Flynn’s success at delaying a vote, noting that he, “worked it all day with trump from Mara lago,” suggesting that Trump was closely coordinating with Flynn — and possibly even listened in on — his call with the Russian Ambassador. That’s one of the calls that Flynn would lie about months later when questioned by the FBI. McFarland would even go on to liken this effort to Richard Nixon’s effort to undermine Vietnamese peace talks and Ronald Reagan’s efforts to delay the release of Iranian hostages.

The other call Flynn lied about months later served to hide coordination at Mar-a-Lago, too. On that call, Sergey Kislyak reached out to Flynn after President Obama announced sanctions; he had a list of three non-sanctions issues he used to explain his call, issues that would have all been appropriate to discuss as part of Transition. After the third, Flynn broke in and asked Kislyak to convey a request that Russia not box “us” in, a request that, given Kislyak’s response, Flynn must have already made once.

Flynn: Yeah. Yeah, yeah. I understand. Okay, um, okay. Listen, uh, a couple of things. Number one, what I would ask you guys to do — and make sure you, make sure that you convey this, okay? — do not, do not uh, allow this administration to box us in, right now, okay? Um —

Kislyak: We have conveyed it. And–

Then Flynn — not Kislyak — raised Obama’s sanctions, reflecting knowledge that they included expulsions.

Flynn: Yeah.

Kislyak: It’s, uh, it’s uh, very very specifically and transparently, openly.

Flynn: So, you know, depending on, depending on what uh, actions they take over this current issue of the cyber stuff, you know, where they’re looking like they’re gonna, they’re gonna dismiss some number of Russians out of the country, I understand all that and I understand that, that, you know, the information. that they have and all that, but what I would ask Russia to do is to not — is — is — if anything — because I know you have to have some sort of action — to, to only make it reciprocal. Make it reciprocal. Don’t — don’t make it — don’t go any further than you have to. Because I don’t want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?

Flynn was on vacation in Dominican Republic when he made this call. He would later claim — an uncharged lie — that he “was not aware of the then-upcoming actions [against Russia] as he did not have access to television news in the Dominican Republic and his government BlackBerry was not working … he did not know the expulsions were coming.” As noted, that was a lie. He did know. We know several of the ways he learned about the sanctions. McFarland’s assistant, Sarah Flaherty, sent Flynn a NYT article on the sanctions. Flynn and McFarland spoke about how to respond to sanctions at least once before Flynn’s call. Most remarkably, after McFarland learned that Flynn would be speaking with the Russian Ambassador, McFarland spoke to Trump’s soon-to-be Homeland Security Czar Tom Bossert, he went to speak with his counterpart Lisa Monaco, and then Bossert emailed out some feedback he had learned from Monaco, including that the Russians were threatening to retaliate for the expulsions. So Flynn not only knew of Obama’s planned sanctions, he even knew part of what the Obama Administration knew about the Russian response to sanctions when be broached the subject with Russia.

Flynn’s lying about his foreknowledge of the sanctions (and therefore his coordination with Mar-a-Lago) would come later. But establishing a cover story came the next day, after Russia announced it would take no retaliatory action. Flynn had told McFarland the previous evening about his call with Kislyak, including that he had raised sanctions. But after Putin announced he would not retaliate (and Trump tweeted out his approval), McFarland forwarded a Flynn text to key transition staffers with a summary of Flynn’s call that made no mention of sanctions. Significantly, she sent it exclusively to official Transition email accounts, including those of Steve Bannon and Jared Kushner, even though a key warrant application shows that Bannon and Kushner generally appear not to have used their Transition email accounts for foreign policy discussions. Flynn would eventually tell Mueller’s team that he purposely did not include sanctions in the text McFarland forwarded to others because, “it would be perceived as getting in the way of the Obama Administration’s foreign policy.” Given the way McFarland selectively chose to include all foreign policy advisors on some emails and just Kushner and Bannon on others, and given an earlier disagreement between Transition team members about whether it was even proper to conduct such outreach with Russia, such selective reporting on Flynn’s calls may have had an additional goal, beyond just creating an affirmatively false record in case Obama’s team ever saw the emails. The email may have served to keep some Transition team members in the dark — as even Vice President Mike Pence remained in the dark weeks later.

However broad the intent, there is documentary evidence that for both calls about which Flynn would later lie to the FBI, Transition team members who also knew of the calls helped to cover them up in real time. Weeks before the FBI ever came calling, then, Flynn and others were already lying about these calls.

Waiting on the Flynn Pardon Paperwork: What Happened with the Roger Stone Commutation

A lot of lawyers are arguing about what Judge Emmet Sullivan might do now that Donald Trump has [tweeted out a claim that he had] pardoned Mike Flynn.

It’s useful to see how something similar happened with Roger Stone. The Mueller Report made an extended case that both of them (along with Paul Manafort) had been encouraged to lie with a pardon dangle. In Stone’s case, as with Flynn, Bill Barr took unprecedented steps to try to overturn the prosecution. Then, in both cases, Trump intervened in an attempt to protect the people who had protected him.

So Stone’s docket should provide a hint of what might happen with Flynn’s pardon.

Stone’s commutation didn’t show up on DOJ’s list of commutations for several days (the commutation was issued the Friday before the Tuesday Stone would have reported). Three days later, however, DOJ posted Stone just like they had other grantees.

But DOJ didn’t inform Judge Amy Berman Jackson of their own accord. She had to go to DOJ, on the Probation Office’s behalf, to ask WTF. She ordered the parties to provide proof of the commutation, including details on how much of Stone’s punishment it covered.

In response, Stone’s lawyers posted the actual grant.

When law professors who had no standing tried to intervene — based on some of the same theories that people are floating in this case — ABJ rightly denied their motion to file as amici.

As noted, I suspect something similar will happen next week where the terms of Flynn’s pardon will be submitted to his docket. All that said, until something does land in the docket — and for some of the pending motions, even afterwards — Sullivan is still entitled to proceed as he has been, writing an order for the motion to dismiss. Even after that, there are several topics — what to do about Flynn’s perjury before him and before the grand jury, what to do about Flynn’s motion to withdraw his plea (which may pertain to DOJ’s ability to charge Flynn or his son on FARA charges), and what to do about DOJ altering documents submitted to Sullivan — that Sullivan might rightly weigh in on.

DOJ may have an incentive to shorten the amount of time in which Sullivan can do that.

But there is absolutely no reason to believe that Sullivan would challenge the pardon, nor is there reason to believe he’d respond any differently if someone else tried to.

Kraken Clemency: Did Trump Issue the Flynn Pardon Wednesday To Avoid Potential Conflict with Sidney Powell’s Batshittery??

I have to admit: given the certainty that Trump was going to pardon Mike Flynn eventually, I’m really grateful he did it on Wednesday, because it allowed for a truly epic headline, “Trump Pardons an Undisclosed Agent of Turkey Along with a Thanksgiving Bird.”

But I’m really mystified by the timing of it.

After all, there was still an outside chance that Judge Emmet Sullivan would agree to DOJ’s motion to dismiss, which would have eliminated Flynn’s guilty verdict more convincingly than this pardon. And, given that the pardon seems to exist only in Tweet form as of right now, Sullivan could still file his ruling, knowing that he’d be getting notice of a pardon sometime next week. Alternately, the early pardon could give Sullivan the opportunity to craft his other decisions, such as regarding Flynn’s motion to withdraw his plea, in ways that might have legal repercussions for Flynn and his son. So it seems risky to pardon Flynn before Sullivan rules.

I can think of several possible reasons for the timing. But the most intriguing is a tie between Sidney Powell’s efforts to sustain Trump’s most baseless conspiracy theories without any potential conflict for Flynn.

The upcoming Sullivan decision

Depending on how Trump words the pardon, the timing of this might still be an effort to pre-empt Sullivan’s decision. If Trump were to describe the pardon as all crimes Flynn committed from July 2016 to the present (meaning Wednesday), and if courts accepted that unspecific language, then it would cover not just Flynn’s lies to the FBI, but also his efforts to hide that he was an Agent of Turkey and his sworn materially conflicting statements before Judges Rudolph Contreras and Sullivan as well as the grand jury.

Or to put it another way, this may be an effort to write an even more abusive pardon in a way that few will notice.

Though I’ll notice.

The upcoming BuzzFeed FOIA release

On Tuesday, BuzzFeed will get another big drop of FBI 302s from the Mueller investigation. According to FOIA terrorist Jason Leopold, DOJ has not told them whether the drop will include the Flynn 302s, but does claim this will be the last release (which would seem to suggest it has to include the Flynn 302s).

Almost year ago, the government provided Flynn with his 302s, which make up 761 pages. They subsequently said that his cooperation with Mueller was not substantial and raised questions about his candor even after his initial interview. That’s consistent with Flynn’s own description of the early proffers, given that his Covington lawyers tried to get him back on track to cooperate after the first one.

Releasing the warrants in Flynn’s case was damning enough (though as a result of the timing, almost no one has scrutinized them closely). But these 302s may prove still more damning (not least because they should provide additional details of a meeting where Trump discussed reaching out to WikiLeaks after the Podesta emails dropped). They also may show that Flynn continued to lie to protect the President even while he was pretending to cooperate.

So Trump may have been tipped that if he wanted to limit the outrage over this pardon, he should get it done before the 302s come out on Tuesday, if indeed they will come out.

The conflict between Sidney Powell TV election lawyer and Sidney Powell TV defense attorney

Finally, I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

Mike Flynn’s Son Invoked His Fifth Amendment Privilege Early in the Investigation into His Father

In the wake of the Flynn pardon (the details of which remain uncertain), the frothers are repeating the fictions about the investigation into Flynn that were obviously false in May, when they first started, and have been affirmatively debunked since. Flynn’s son is central to those stories. As a reminder, the claim is that Flynn Sr took a plea deal not because his very credible defense attorneys had counseled him he faced up to 15 years for hiding that he was on Turkey’s payroll during the campaign, but because Mueller threatened his son. Implicit in that claim is that Mike Jr didn’t have any real criminal exposure of his own, but Mueller was nevertheless threatening to trump up an investigation into the failson in November, when his dad took the deal.

Even in General Flynn’s sworn declaration, though, the claim is only that Flynn’s son would be indicted.

  • “I agreed to plead guilty that next day, December 1, 2017, because of the intense pressure from the Special Counsel’s Office, which included a threat to indict my son, Michael, and the lack of crucial information from my counsel.”
  • “My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace.”

But a warrant recently unsealed in the case suggests that from the start of the investigation, Mike Jr was a focus of the investigation. Along with Flynn himself and Flynn’s partner Bijan Kian, Flynn Jr was subpoenaed for the devices he used in his Flynn Intelligence Group work in July 2017. We know this warrant is his because it was sent to Barry Coburn, who represented the son, because it refers to the father as Michael T. Flynn throughout (which is necessary to distinguish Michael G from his father), and describes the target of the warrant as Flynn’s chief of staff, a role the son played.

Like his father and Kian, Flynn Jr had refused to comply with a subpoena for his devices, and had given his phone to his attorney for safe-keeping. Mueller’s team got warrants for all three as a way to force the attorneys to turn over the phones of their clients.

Unlike the others though, Flynn Jr also got subpoenaed for testimony. His attorney responded by proffering that Flynn Jr would invoke the Fifth Amendment. Among the questions Flynn Jr’s lawyer at least said he’d refuse to answer were:

  1. Are you aware of whether Michael T. Flynn has ever traveled outside of the United States?
  2. Please describe each instance when Michael T. Flynn traveled outside of the United States since August 1, 2014.
  3. Are you aware of whether Michael T. Flynn has ever communicated with a foreign government official?
  4. Please describe each instance when Michael T. Flynn communicated with a foreign government official since August 1, 2014.

Prosecutors seemed to be pushing Flynn Jr to appear before the grand jury and invoke the Fifth question by question — but it’s unclear what did happen.

One way or another, however, General Flynn’s son’s lawyer was telling Mueller’s prosecutors as early as July that answering questions that would cover his trip to Russia for the RT gala would incriminate him.

That suggests it wasn’t just Flynn’s lawyers at Covington who believed, four months later, that Flynn Jr might be at risk of prosecution.

Update: Mike Flynn Jr has become a Twitter fan of mine. Last night he assured me there was zero chance he’ll ever be indicted.

I may be misunderstanding, but this seems to suggest that Daddy’s claims he only pled was to keep Jr out of trouble — as asserted by Flynn in a sworn statement, above — are false. I mean, he may be accusing Pops of perjury, which seems to be an odd way to celebrate a pardon.