Posts

Snowden

Like Glenn Greenwald, Roger Stone Links a Pardon for Edward Snowden to a Corrupt Pardon for Julian Assange

/22 Comments/in , , /by

After being pardoned for his crime of lying to Congress last night, Roger Stone called for a pardon for Julian Assange and Edward Snowden.

Stone welcomed the pardon and complained he’d been subjected to a “Soviet-style show trial on politically-motivated charges.”

The longtime political provocateur also urged the president to extend clemency to a key figure in the release of hacked emails during the 2016 campaign, Julian Assange, and to National Security Agency leaker Edward Snowden.

“Other good Americans have been victims of a corrupt system made to serve venal power-seekers,rewarding deceit and manipulation, rather than reason and justice. President Trump can be the purveyor of justice over the vile machinations of wicked pretenders to the mantle of public service,” Stone wrote.

Unless Bill Barr shut it down in preparation for the pardons to come (a very good possibility), DOJ has an ongoing investigation into the circumstances under which Roger Stone started pursuing a pardon for Assange, one that ties a pardon for Assange to Stone’s successful optimization of the release of the John Podesta files in October 2016. That might even make Stone’s call a new overt act in a conspiracy that started in 2016.

What it also does, though, is tie a hypothetical Snowden pardon — one that otherwise would have nothing to do with Trump’s crimes — to this quid pro quo.

Stone is not the first to do so in a corrupt way, of course. So did Glenn Greenwald, when he pitched such a dual pardon as a way for Trump to get back at The [American] Deep State on Tucker Carlson’s show, back in September.

Glenn: Let’s remember, Tucker, that the criminal investigation into Julian Assange began by the Obama Administration because in 2010 WikiLeaks published a slew of documents — none of which harmed anybody, not even the government claims that. That was very embarrassing to the Obama Administration. It revealed all kinds of abuses and lies that they were telling about these endless wars that the Pentagon and the CIA are determined to fight. They were embarrassing to Hillary Clinton, and so they conducted, they initiated a grand jury investigation to try and prosecute him for reporting to the public. He worked with the New York Times, the Guardian, to publish very embarrassing information about the endless war machine, about the Neocons who were working in the Obama Administration. To understand what’s happening here, we can look at a very similar case which is one that President Trump recently raised is the prosecution by the Obama Administration, as well, of Edward Snowden for the same reason — that he exposed the lies that James Clapper told, he exposed how there’s this massive spying system that the NSA and the CIA control, that they can use against American citizens. Obviously this isn’t coming from President Trump! He praised WikiLeaks in 2016 for informing the public. He knows, firsthand, how these spying systems that Edward Snowden exposed can be abused and were abused in 2016. This is coming from people who work in the CIA, who work in the Pentagon, who insist on endless war, and who believe that they’re a government unto themselves, more powerful than the President. I posted this weekend that there’s a speech from Dwight Eisenhower warning that this military industrial complex — what we now call the Deep State — is becoming more powerful than the President. Chuck Schumer warned right before President Obama — President Trump — took office that President Trump challenging the CIA was foolish because they have many ways to get back at anybody who impedes them. That’s what these cases are about Tucker, they’re punishing Julian Assange and trying to punish Edward Snowden for informing the public about things that they have the right to know about the Obama Administration. They’re basically saying to President Trump, “You don’t run the country even though you were elected. We do!” And they’re daring him to use his pardon power to put an end to these very abusive prosecutions. One which resulted in eight years of punishment for Julian Assange for telling the truth, the other which resulted in seven years of exile for Edward Snowden of being in Russia simply for informing the public and embarrassing political officials who are very powerful.

While there’s abundant evidence (which press organizations and journalists who’ve been personally involved are dutifully ignoring) that Julian Assange has been something other than he has been claiming for years, I have always believed a Snowden pardon is an entirely different thing, something far more justified. But if these people who were running interference for Guccifer 2.0 back in 2016 and have continued to do so to this day keep linking a corruptly negotiated Assange with a Snowden one, it does raise questions about whether there’s some closer tie.

On Bill Barr’s Last Day, Trump Commits the Crime Barr Affirmed in His Confirmation Hearing

/36 Comments/in , , /by

In Bill Barr’s confirmation hearing, he affirmed on three different occasions (each time with lessening force) that it would be a crime to offer a pardon for false testimony.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

In Bill Barr’s resignation letter, he explained he would “spend the next week wrapping up a few remaining matters important to the Administration and depart on December 23rd.” Barr stopped off at the White House yesterday for a short visit. He and his spox wrote his good-byes during the day and then left DOJ in charge of Jeffrey Rosen.

And then after all that, Trump pardoned Paul Manafort and Roger Stone. The Manafort and Stone pardons — for which the paperwork must have been done ahead of time but held until Barr was no longer Attorney General — only cover the crimes for which they’ve been found guilty. That means both men would ostensibly remain under investigation for their coordination with Russian Agents during the election (and both men assuredly did coordinate with Russian Agents during the election.

If Bill Barr didn’t find a way to permanently end that investigation.

The question now is whether Bill Barr, cover-up artist, managed to cover his tracks this time as well as he did in Iran-Contra.

Billy Barr Makes Excuses for His C- Durham Investigation Report Card

/21 Comments/in , /by

Either Billy Barr didn’t believe his bullshit would withstand even the obsequious questioning of Pierre Thomas or Pete Williams, or he felt the need to re-set the expectations for the Durham investigation that he set sky high when it started, because one of his first exit interviews was with WSJ’s propagandist Kim Strassel.

There’s the typical propaganda in here: Strassel’s attempt to claim all the politicized decisions he made were instead brave tough choices and she reports Barr’s admission that he came in to end the Russian investigation without noting that, in the past, he admitted when he came in he didn’t know anything about.

But there’s an interesting framing that suggests Barr knows he badly oversold his claims about the Mueller investigation and the FBI investigation that led to it, and oversold his Durham investigation even more.

Of the Russian investigation, Barr first claims, as fact, that a small group of people used the Russian investigation to topple the Trump “administration,” ignoring the illogic of that claim, since had they really wanted to thwart Trump, they would have done so during the election.

He reminds me why he took the job in the first place: “The Department of Justice was being used as a political weapon” by a “willful if small group of people,” who used the claim of collusion with Russia in an attempt to “topple an administration,” he says. “Someone had to make sure that the power of the department stopped being abused and that there was accountability for what had happened.” Mr. Barr largely succeeded, in the process filling a vacuum of political oversight, reimposing norms, and resisting partisan critics on both sides.

A paragraph later, Barr says that Mueller should have done the work he claims Durham is doing, by refusing to take in garbage (we’ve already seen abundant evidence that Mueller chased down disinformation, including the Steele dossier, as disinformation).

Mr. Barr says Mr. Durham’s appointment should not have been necessary. Mr. Mueller’s investigation should have exposed FBI malfeasance. Instead, “the Mueller team seems to have been ready to blindly accept anything fed to it by the system,” Mr. Barr says, adding that this “is exactly what DOJ should not be.”

In-between the two, Barr reiterated his bullshit claim that there was no evidence of “collusion.”

Mr. Barr describes an overarching objective of ensuring that there is “one standard of justice.” That, he says, is why he appointed U.S. Attorney John Durham to investigate the FBI’s 2016 Crossfire Hurricane probe. “Of course the Russians did bad things in the election,” he says. “But the idea that this was done with the collusion of the Trump campaign—there was never any evidence. It was entirely made up.” The country deserved to know how the world’s premier law-enforcement agency came to target and spy on a presidential campaign.

Ignore for a second that a passage of the Mueller Report that Barr stalled to declassify until the height of the election showed that Mueller referred the investigation into whether Roger Stone conspired with Russia to the DC US Attorney, ignore that Paul Manafort lied about what he and his partner the Russian spy were doing, ignore that Barr and Trump will attempt to make both of those ongoing investigations go away with pardons issued in minutes or days.

Barr suggests that Mueller’s conclusion that he didn’t have enough evidence to charge a conspiracy equates to claims of “collusion” being “entirely made up.” That is, if there’s not enough evidence to charge a crime, then even the lower level non-crime of “arglebargle” didn’t happen, even though SSCI staffers said it did.

So, for the Mueller investigation, Barr suggests no garbage should come in, and if no indictments (aside from the 30 or so that did) come out, then there was nothing to see there.

From there, Barr proceeds to make two paragraphs of excuses as to why Durham has found nothing in the same 20 months that Mueller indicted over 30 people, 3 corporations, and paid for much of the investigation.

Mr. Durham hasn’t finished his work, to the disappointment of many Republicans, including the president, who were hoping for a resolution—perhaps including indictments—before the election. Mr. Barr notes that Mr. Durham had to wait until the end of 2019 for Inspector General Michael Horowitz to complete his own investigation into the FBI’s surveillance. Then came the Covid lockdowns, which suspended federal grand juries for six months. Mr. Durham could no longer threaten to subpoena uncooperative witnesses.

“I understand people’s frustration over the timing, and there are prosecutors who break more china, so to speak,” Mr. Barr says. “But they don’t necessarily get the results.” Mr. Durham will, and is making “significant progress,” says Mr. Barr, who disclosed this month that he had prior to the election designated Mr. Durham a special counsel, to provide assurance that his team would be able to finish its work. The new designation also assures that Mr. Durham will produce a report to the attorney general. Mr. Barr believes “the force of circumstances will ensure it goes public” even under the new administration.

Again, Durham has brought one indictment in the time that Mueller had indicted 33 people (and even the least-politicized investigation into Hunter Biden has gone on longer than the entire Mueller investigation). Which maybe explains why Barr offers up excuses why Durham hasn’t found anything except what Michael Horowitz found for him, the Kevin Clinesmith document alteration.

He offers more, later, but not before he uses a different tack to explain away the futility of his examination. He explains, in passing, that the scope has gotten smaller. He doesn’t mention something he has already admitted in the past — that Durham spent a lot of time (on boondoggle trips to Europe, Barr doesn’t say) chasing down and disproving George Papadopoulos’ conspiracy theories. He does, however, confess that Durham determined before October that the CIA didn’t just make shit up.

The biggest news from Mr. Durham’s probe is what he has ruled out. Mr. Barr was initially suspicious that agents had been spying on the Trump campaign before the official July 2016 start date of Crossfire Hurricane, and that the Central Intelligence Agency or foreign intelligence had played a role. But even prior to naming Mr. Durham special counsel, Mr. Barr had come to the conclusion that he didn’t “see any sign of improper CIA activity” or “foreign government activity before July 2016,” he says. “The CIA stayed in its lane.”

Let me interrupt and observe that Barr bitched that Mueller “blindly accept[ed] anything fed to it by the system,” but here admits that two things he personally fed to Durham — Papadopoulos’ conspiracy theories and politicized claims that the CIA had it in for Trump — were garbage. Barr has just confessed he did what he accuses Mueller (with no evidence) of doing.

Several paragraphs later, Barr asserts, as fact, that the politicized Jeffrey Jensen investigation he ordered up (again, garbage in) concluded that Flynn’s prosecution was “entirely bogus.”

Also outrageous, in Mr. Barr’s view, was the abuse of power by both the FBI and the Mueller team toward Mr. Trump’s associates, especially Mr. Flynn. The FBI, as a review by U.S. Attorney Jeff Jensen found, pulled Mr. Flynn into an interview that had “no legitimate investigative basis.” The Mueller team then denied Mr. Flynn’s legal defense exculpatory information and pressured Mr. Flynn into pleading guilty to lying.

Mr. Barr didn’t order a review of the case until Mr. Flynn petitioned to withdraw his guilty plea in January 2020. Mr. Jensen’s review then made clear that the case “was entirely bogus,” Mr. Barr says. “It was analogous right now to DOJ prosecuting the person Biden named as his national security adviser for communication with a foreign government.” The Justice Department agreed to drop the charges in May, although Judge Emmet Sullivan spent months contesting the move until Mr. Trump finally pardoned Mr. Flynn. Mr. Barr declines to comment on Judge Sullivan’s maneuvering.

Except, of course, “Sullivan’s maneuvering,” (AKA, being a judge) rejected that claim, and pointedly found the claims Barr invented were unpersuasive given the claims that Bill Barr’s own DOJ had already made in his court. The legally valid conclusion is that Barr’s talking shite here, to say nothing of whatever Strassel is doing.

Then, going back a bit, Barr describes Durham’s narrowly circumscribed scope (assuming Biden’s AG doesn’t expand it to look at how Barr and others undermined the Russian investigation, including by committing the same crime Kevin Clinesmith pled guilty to). We’re down to a dead-ender investigation into the FBI agents (presumably, unless Biden’s AG expands the scope, excluding Bill Barnett, whose Jensen interview report conflicts with his own actions on the Flynn case).

Mr. Barr says Mr. Durham’s probe is now tightly focused on “the conduct of Crossfire Hurricane, the small group at the FBI that was most involved in that,” as well as “the activities of certain private actors.” (Mr. Barr doesn’t elaborate.) Mr. Durham has publicly stated he’s not convinced the FBI team had an adequate “predicate” to launch an investigation. In September, Director of National Intelligence John Ratcliffe declassified a document showing that the FBI was warned in 2016 that the Hillary Clinton campaign might be behind the “collusion” claims.

Mr. Barr says Mr. Durham is also looking at the January 2017 intelligence-community “assessment” that claimed Russia had “developed a clear preference” for Mr. Trump in the 2016 election. He confirms that most of the substantive documents related to the FBI’s investigation have now been made public.

SSCI has already judged Barr is wrong about the latter point. So Barr is basically left with the Steele dossier and those who used it as they would any other informant report, especially an informant report from a former intelligence partner.

Barr is, you’ll be unsurprised to know, lying when he claims, “most of the substantive documents related to the FBI’s investigation have now been made public.” More on that in time for January 21, I hope.

So thus far, Barr offers the following excuses, after narrowing the scope to eliminate all the worse-than-Steele dossier bullshit he introduced.

  • Had to wait for Horowitz to find the only crime
  • Too careful
  • Too much sickness
  • Too many conspiracy theories (all included by Barr) to debunk
  • [Unstated: Too many boondoggles]
  • A prosecutor whose team altered documents (like Clinesmith) made a claim a judge shot down

Having done all that, Barr then resorts to the inverse of the attack he makes on the 34-indictment Mueller investigation:

The attorney general also hopes people remember that orange jumpsuits aren’t the only measure of misconduct. It frustrates him that the political class these days frequently plays “the criminal card,” obsessively focused on “who is going to jail, who is getting indicted.”

The American system is “designed to find people innocent,” Mr. Barr notes. “It has a high bar.” One danger of the focus on criminal charges is that it ends up excusing a vast range of contemptible or abusive behavior that doesn’t reach the bar. The FBI’s use “of confidential human sources and wiretapping to investigate people connected to a campaign was outrageous,” Mr. Barr says—whether or not it leads to criminal charges.

Never mind that Barr claims the FBI used wiretapping to investigate “people connected to a campaign,” which is false (the use of informants is true, except Barr is not here complaining that the FBI counts the use of informants against everyone else as one of the most unintrusive means of investigation, which would be the proper conclusion Barr should take from his discomfort at how they were used here).

Barr’s final excuse for the fact that he’s been making grand claims of abuse for years but found nothing is that no one has been put into an orange jumpsuit yet. “The American system is “designed to find people innocent,'” Billy Barr told WSJ’s propagandist. And so people shouldn’t assume that his two year witch hunt has come up dry.

The issue — says the guy turning a no conspiracy charge into a no collusion claim — is that the American system is, “designed to find people innocent.”

Bill Barr claims he believes in, “one standard of justice,” even while making wild accusations for years that have turned out (his narrow scope implicitly admits) to be false. But he apparently believes in two standards of performance. John Durham’s single prosecution over 20 months, on a charge gift-wrapped for him by Michael Horowitz — that’s smoking gun proof of abuse. But Mueller’s 37 indictments, including obstruction-related charges for Trump’s campaign manager, deputy campaign manager, lawyer, rat-fucker, National Security Advisor, and coffee boy, along with an ongoing investigation into the rat-fucker for conspiring with Russia. That’s nothing, “entirely made up.”

There’s still room for abuse and it’s clear Durham doesn’t understand what he’s looking at. But in the end, Barr’s micromanaged witch hunt couldn’t match what Robert Mueller did. And Barr is probably feeling pretty insecure about that on the way out.

A Modest Proposal: Include Lindsey Graham’s Threats against Brad Raffensperger in any Special Counsel Mandate

/19 Comments/in /by

Lindsey Graham has endorsed the idea of appointing a Special Counsel to investigate Hunter Biden.

Graham on a special counsel for Hunter Biden: I think it’s a good idea..if you believe a special counsel was needed to look at the Trump world regarding Russia. How can you say there’s no need for special counsel regarding Hunter Biden?”

Apparently, the Chair of the Senate Judiciary Committee doesn’t see the difference between appointing a Special Counsel after the President has fired the FBI Director to stop an investigation into himself and a Special Counsel to investigate the President-Elect’s son two years into an investigation that has (thus far) found nothing. Graham doesn’t even seem to realize that various parts of the Trump DOJ have investigated — at a minimum — Trump’s son-in-law (as part of a referral from the Mueller investigation, though the topic is unknown), Trump’s personal lawyer, and any number of his corrupt former campaign managers, without needing a Special Counsel to protect the independence of the investigation, not even after the confirmed interference by the Attorney General.

The call for a Special Counsel to continue an investigation that has already lasted two years (that is, longer than the entire Mueller investigation and twice as long as it took to indict Manafort on 44 counts of tax evasion, bank fraud, money laundering, and unregistered influence-peddling) without finding anything comes along with President Trump’s call for another Special Counsel investigating purported voter fraud.

As I said in my post noting that John Durham has unaltered originals of documents that — under Billy Barr’s micromanagement — got altered and submitted to a judge, followed by a lie to the same judge, one way to deal with the Durham Special Counsel designation is to have him investigate crimes that Barr’s associates may have committed in their efforts to undermine the Russian investigation. John Durham will control the day-to-day conduct of this investigation, but he doesn’t — cannot legally, under current precedent — control the scope.

Something similar could be done with both of the Special Counsel investigations Trump wants to push. Rudy Giuliani will no doubt be pardoned in the next 35 days. And the next day, Rudy will wake up and continue pursuing the same disinformation, largely about Hunter Biden, from Russian-tied mobbed up oligarchs. So Sally Yates or Doug Jones or whoever Biden makes Attorney General can very easily ask a Special Counsel to include Rudy’s potential crimes among those the Special Counsel investigates. The Special Counsel doesn’t even have a reporting mechanism to complain about scope (which John Durham might have used when Barr was flying him around the world chasing George Papadopoulos’ conspiracy theories). If the Special Counsel complained about the scope, she could quit and be replaced by someone Biden’s AG believed appropriate. If the Special Counsel leaked anything, Biden’s AG would have the Comey precedent to justify firing the Special Counsel.

So, too, could a Special Counsel appointed by Trump to investigate voting irregularities be scoped to investigate the more credible allegations of crimes committed during the election, most notably threats and other coercive means used against those (including Republicans) trying to conduct free and fair elections. Among others whose conduct could be investigated are government employees who also served as counsel on Trump-backed lawsuits challenging the election. A Special Counsel investigating allegations of crime during the election could review fraudulent claims alleging fraud in sworn declarations submitted in these frivolous lawsuits; such an investigation could consider whether there was an organized effort to collect such perjurious statements, and if so, who funded it all. Such a Special Counsel could investigate whether then-President Trump’s multiple calls haranguing GOP officials constituted a threat or some kind of bribe. A Special Counsel could and should review the range of violent threats against participants on both sides of the election.

Among the most alarming potential crimes alleged during the post-election period, as it happens, involves Lindsey Graham himself. He called up Georgia’s Republican Secretary of State, Brad Raffensperger, and — while witnesses were listening — pushed Raffensperger to disqualify legal votes.

Georgia Secretary of State Brad Raffensperger said Monday that he has come under increasing pressure in recent days from fellow Republicans, including Sen. Lindsey O. Graham (S.C.), who he said questioned the validity of legally cast absentee ballots, in an effort to reverse President Trump’s narrow loss in the state.

[snip]

In the interview, Raffensperger also said he spoke on Friday to Graham, the chairman of the Senate Judiciary Committee, who has echoed Trump’s unfounded claims about voting irregularities.

In their conversation, Graham questioned Raffensperger about the state’s signature-matching law and whether political bias could have prompted poll workers to accept ballots with nonmatching signatures, according to Raffensperger. Graham also asked whether Raffensperger had the power to toss all mail ballots in counties found to have higher rates of nonmatching signatures, Raffensperger said.

Raffensperger said he was stunned that Graham appeared to suggest that he find a way to toss legally cast ballots. Absent court intervention, Raffensperger doesn’t have the power to do what Graham suggested because counties administer elections in Georgia.

“It sure looked like he was wanting to go down that road,” Raffensperger said.

It’s unclear whether Lindsey’s actions constitute a crime or not. But that’s why it would be a reasonable thing for a Special Counsel, one not directly controlled by Biden’s AG, to review: to ensure it receives a fair review without political influence.

Lindsey Graham seems to believe that Trump’s calls for Special Counsels are merited.

Very well then.

Missing the National Security Crises for the Trump Temper Tantrums

/39 Comments/in , , /by

Even after Republicans and Vladimir Putin have conceded that Donald Trump will no longer be President in 35 days, key parts of the press corps seem unable to look beyond Trump’s temper tantrums to the state of the country.

NBC,  for example, has a 17-paragraph story about Pat Cipollone’s efforts to persuade Trump not to fire Chris Wray and maybe Chad Wolf and maybe Gina Haspel and who knows maybe some more national security figures Trump is pissy about because they haven’t catered to his personal demands. The story doesn’t once mention that these same national security officials — especially Wray and Wolf — are neck deep in a crisis attempting to assess and respond to the SolarWinds compromise of multiple US agencies.

While Trump’s frustrations with Attorney General Bill Barr boiled over in recent days, and Barr resigned on Monday, the president’s advisers hope he’s been persuaded against ousting Wray. Multiple current and former senior administration officials said firing Wray does not appear imminent, but they also point out that the president could make such a decision on a whim at any time. Indeed officials said they are prepared for Trump to go on a firing spree before leaving office next month.

“I wouldn’t take anything off the table in coming weeks,” the senior administration official said of personnel changes, as well as presidential pardons. The official said to expect “some more fairly significant terminations in the national security or intelligence community.”

That this story could even be reported with an unrelenting focus on Trump’s revenge fantasies and not, instead, an extended discussion of the way these revenge fantasies have distracted the entire Administration from urgent crises which Trump’s past revenge fantasies have invited and made worse is an alarming failure of basic framing.

Similarly, in the middle of a 19-paragraph AP story on the transition at DOJ from Bill Barr to Jeffrey Rosen, it summarizes the main point of the story: the biggest issue before DOJ as it prepares for pardonpalooza, continues to cope with running prisons and fraud investigations during a pandemic, sues some of the world’s biggest tech companies, and deals with Mexico’s withdrawal from virtually all drug enforcement cooperation is whether or not the Attorney General, some Attorney General, any Attorney General appoints a special counsel to investigate Hunter Biden.

As Barr exits, the biggest thing by far hanging over the Trump Justice Department is its investigation into Hunter Biden, which involves multiple U.S. attorney offices and FBI field offices.

The AP is so deep inside Trump’s manic delusions that it states, as fact, that appointing a special counsel would by itself make for a more complicated investigation, as if someone could just chase Rudy Giuliani conspiracies for four years without Biden’s Attorney General making a solid case the person should be fired.

Appointing a special counsel for the Hunter Biden probe would also signal a more prolonged and complicated investigation than the current inquiry, so far largely centered on his taxes.

DOJ has already spent something like 4 US Attorney years investigating Hunter Biden and has yet to charge him with a single crime; while it remains to be seen whether the tax charges are real, at some point an investigation will butt up against the reality that even the politicized Scott Brady one did: most of the allegations against Hunter Biden are the product of very frothy conspiracy theorizing and aggressive disinformation that straight reporters are not obliged to adopt.

It is useful — important even — to report on the Trump’s temper tantrums. But his tantrums, at this point, are most important for the way they’ve paralyzed and corrupted the entire government during a time it faces multiple urgent crises. Don’t let sources dodge how indulging the President’s childish whims means they, too, are failing to do their real job serving the country.

The country is burning. It is burning, in significant part, because the President has always prioritized his own personal vendettas over the good of the country.

If you need to report on how Trump has put his own revenge fantasies over all else during his Lame Duck, do so as a first step towards holding him accountable for the wreckage that has resulted, not to indulge those fantasies as if the rest of us should care about them anymore.

The Claim that Billy Barr Didn’t Release Any Investigative Information During the Election Is False

/26 Comments/in , , , /by

Even before Billy Barr’s obsequious resignation, he and his handlers had been working the press to boost his tainted reputation. Consider not one (dated December 10) but two (dated December 14) WSJ stories boasting about how Barr kept the Hunter Biden investigations from going public. The WSJ lauds Barr for doing things that he pushed to have Peter Strzok and others prosecuted for also doing in the Russian investigation (one theory that John Durham and Jeffrey Jensen pursued is that because Strzok didn’t approve NSLs against Mike Flynn in November 2016 he had no basis to do so in February and March 2017).

Mr. Barr took more steps than previously reported to insulate the investigations, despite calls from President Trump and Republican allies to announce a probe involving President-elect Joe Biden’s son Hunter.

Mr. Barr and senior department officials relayed the instructions in conversations with prosecutors, questioning whether their staff members could be trusted and warning against issuing subpoenas or taking other steps that might become public, some of the people familiar with the matter said.

It’s full of fawning praise that accepts as true that Barr would never reveal information from an ongoing probe.

As the election drew nearer, calls from Mr. Trump and some Republican allies for the investigations rose in urgency. Mr. Barr and other top Justice Department officials resisted inquiries from several Republican lawmakers and their staffs for information on whether investigators were examining Hunter Biden, two people familiar with the matter said.

“It’s not even debatable that it is wrong for anyone in the chain of command at DOJ, especially the top law enforcement person in the country, to reveal an ongoing confidential criminal investigation. And Bill Barr was not going to do that,” said Richard Cullen, a former U.S. attorney and longtime friend of the attorney general.

The WSJ even points to the Scott Brady investigation, without noting what happened to it during the investigation.

After the acquittal, Mr. Barr announced that the U.S. attorney in Pittsburgh, Scott Brady, would receive and review information related to Hunter Biden and Ukraine from Mr. Giuliani.

As the NYT reported, Brady was pushing the FBI to do stuff they deemed inappropriate, particularly during an election year. It sounds like, to the degree that these investigations remained secret, that was due more to the FBI than to Barr or his hand-selected partisan US Attorney.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.

The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

[snip]

Still, Mr. Brady pressed the F.B.I. to do more, officials said. The agents found ways to ostensibly satisfy Mr. Brady without upending the election. It is not clear how they compromised, but agents could have investigated more discreetly, like questioning witnesses they were confident would keep quiet or checking databases.

WSJ addresses the Durham investigation this way in its last three paragraphs.

Mr. Barr soon after ordered an investigation into the origins of the FBI’s 2016 probe that had led to Mr. Mueller’s appointment. Mr. Barr openly contemplated releasing the results ahead of November’s election. He told The Wall Street Journal in August the department’s election-sensitivities policy did not apply because the previously announced inquiry did not “reach to Obama or Biden, and therefore the people under investigation are in fact not really political figures.”

Then, the federal prosecutor leading that review, John Durham, hadn’t completed his work in time. Mr. Durham’s deputy resigned in part over concerns that Mr. Barr would use the findings for political gain, the Journal previously reported. Mr. Trump and his allies said they hoped some findings would be released before the election. Mr. Durham hasn’t commented on his team’s work.

In October, Mr. Barr appointed Mr. Durham special counsel, meaning he can only be removed for cause and likely leaving the probe for his successor to address. He didn’t disclose that appointment until Dec. 1.

I’m not sure how a piece that describes Nora Dannehy’s resignation can claim — anywhere — that Barr worked hard to keep investigative information secret. He tried to do the opposite, and failed, at least with respect to the Durham investigation.

But what he did in response should disabuse any journalist of the claim that Barr tried to keep investigative information secret.

In the 60 days leading up to the election, the Jeffrey Jensen released an interview report — from a witness that John Durham surely also interviewed — that was so obviously intended for political effect that it left out key details and evidence from the investigation into Mike Flynn and invited a pro-Trump FBI Agent to make accusations about Mueller prosecutors he didn’t even work with. The report was also redacted so as to hide material, complimentary information about the Mueller investigation.

At the same time, the Jensen investigation released a package of exhibits also reviewed as part of the Durham investigation, at least three of which had been altered, including to have their protective order footers removed:

One of the alterations — a misleading date falsely suggesting Biden played a role in the Mike Flynn investigation that DOJ knew well Bob Litt actually played — was used by Trump to make an attack on Joe Biden.

It is simply false to say that Barr didn’t release investigative information affecting Joe Biden. Indeed, under his micromanagement, Jensen did far worse than Jim Comey did in 2016, because the information was packaged up

Bill Barr Is Resigned to Spending Time with His Family

/122 Comments/in , /by

Bill Barr was either just fired or quit, partly as a way to distract from Joe Biden’s resounding Electoral College win.

Barr wrote what may be the most insipid resignation letter in history.

Jeffrey Rosen will be Acting Attorney General. Richard Donoghue, who was swapped with Seth DuCharme in July, will be Acting Deputy Attorney General.

I’m particularly interested in what upcoming events — like a self-pardon — Barr didn’t want to have a role in.

After Trump Spent Four Years Inviting Russia to Hack the US, Russia Allegedly Did Just That

/32 Comments/in , , /by

Yesterday, Reuters revealed that the same vulnerability used to steal FireEye’s Red Team tools was also used to spy on Treasury and Commerce’s National Telecommunications and Information Administration, which administers the Internet. Then WaPo revealed that Russia’s APT 29 hacking group is believed to be behind the compromise. Multiple outlets — including FireEye itself — revealed that the hack had used a vulnerability in SolarWinds IT monitoring software identified in the spring. FireEye explains the hack has targeted, “government, consulting, technology, telecom and extractive entities in North America, Europe, Asia and the Middle East,” (presumably reflecting what they’ve seen in their clients as they respond to their own compromise). And CISA issued an emergency directive aiming to stem the damage in agencies beyond just Treasury and NTIA (among SolarWinds’ other US government clients are DOJ and two nuclear labs, as well as Booz Allen, which might as well be US government). Later today, Reuters confirmed that DHS had also been targeted. State, NIH, and parts of the Pentagon have also been targeted.

Let me make clear before I start that thus far, this is nation-state spying, without the kind of sabotage we’ve seen from Russia in the past (if it is indeed Russia). Russia would do what they did with this vulnerability with or without Trump in office (indeed, I have a suspicion their overt hacks of the US will go up under President Biden, mostly because Trump didn’t need any help damaging the US government). While the full scope of the victims is not yet known, it’s quite clear that hackers targeted a slew of entities, governmental and not, with this campaign. So having Trump in office in no way created this campaign nor chose the target.

Nevertheless, it is the case that the President of the United States, as a policy matter, has gone to great lengths to make it easier for Russia to minimize the costs of hacking the US.

Almost four years ago, Mike Flynn called up the Russian Ambassador and asked him not to box the Trump Administration in in the wake of President Obama’s effort to hold Russia accountable for interfering in our elections, in part by hacking multiple participants in it, from both parties. Vladimir Putin complied with Flynn’s request, taking no steps in response. Not only did Sergey Kislyak make sure Flynn knew that his request had played a key role in Putin’s decision, but he told Flynn that the Trump Administration and Russia were on the same side, targeted by sanctions aiming to incur a cost for Russia’s actions. “I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.”

Well before Kislyak had suggested to the 30-year intelligence veteran that Russia and Trump were on the same side against establishment America, Flynn had already taken steps to hide his actions, perhaps because some Transition members, like Marshall Billingslea, objected to the pre-inauguration outreach to Russia.

When the whole thing got leaked to the public, Flynn lied even to the Vice President-Elect about his outreach.

But Trump appears to have been in on the secret. “The boss is aware” of Kislyak’s earlier requests of the Administration, Flynn told Kislyak on December 31, 2016. Indeed, Flynn made the first call that he would later lie about from Mar-a-Lago, while Flynn, “worked all day with trump from Mara lago,” as KT McFarland bragged in real time.

When the FBI interviewed Flynn about those calls a month later, he lied about the requests he had made of Russia. But he appears to have told a remarkable truth about one thing. “With regard to the scope of the Russians who were expelled,” from the US in retaliation for interfering in a US election, the FBI agents who interviewed him wrote, “FLYNN said he did not understand it. FLYNN stated he could understand one [diplomat expelled as a persona non-grata], but not thirty-five.” General Flynn, a thirty year veteran, thought an appropriate response to a systematic assault on American democracy was to kick out one suspected spy.

Months later (though this would not be revealed until years later), the newly installed President would make it clear he agreed with his short-lived National Security Advisor. In his first face-to-face meeting with representatives from Russia as President on May 10, 2017, President Trump told Foreign Minister Sergey Lavrov that he was unconcerned about Russian interference in the election that had made him President, because the US had historically done the same in other countries. Trump’s officials would take efforts to hide the most embarrassing aspects of that meeting (including that Trump shared highly sensitive Israeli intelligence with the Russians), first by altering the MemCon of the meeting and then having Trump’s new National Security Advisor, HR McMaster, give, “a misleading account of what happened during TRUMP’s meeting with LAVROV.” And Russia would have known that Trump and McMaster were lying.

Before Trump would tell Russia, to their face, that he didn’t much mind that Russia had hacked American democracy, he started dismantling the United State’s ability to prevent further hacks. That started with an effort to prevent the FBI from investigating why Flynn had reached out to Russia to undermine sanctions and (as a sentencing memo approved by Bill Barr’s DOJ would later explain) who ordered him to do so. The day Trump learned the FBI had interviewed Flynn, he asked FBI Director James Comey for loyalty. Then, after Trump fired Flynn — ostensibly for lying to the Vice President — he then privately asked the FBI Director to, “let[] this thing go, to let[] Flynn go.” After Comey testified publicly to Congress about the investigation, Trump fired him.

A long line of people would follow Comey out the door, many of them experts on Russia or counterintelligence or cybersecurity. Trump invented reasons in most cases (reasons that, as with Comey, sharply conflicted with his own views about Hillary Clinton). The obvious real reason had to do with retaliation for investigating him. But in those firings and resignations, Trump got rid of numerous people who had long fought Russian organized crime (like Andrew McCabe and Bruce Ohr), and counterintelligence experts like Peter Strzok. Before and after his impeachment, he got rid of other Russian experts like Marie Yovanovitch and Alexander Vindman. Even those who left of their own accord, like Fiona Hill, were demonized for their true testimony under subpoena.

The most remarkable moment came in July 2018, shortly after the Mueller team indicted Russia’s hackers for their attack on our democracy, when Trump met Putin in Helsinki.

Days before the meeting — though possibly after he had been warned the indictment was coming — Trump announced that he and Putin were talking about cybersecurity cooperation.

Then at the actual summit, with Putin displaying Trump like a soggy trophy, Trump sided with Putin’s denials over the US intelligence community in part because of conspiracy theories about the DNC server.

My people came to me, Dan Coats, came to me and some others, they said they think it’s Russia. I have President Putin. He just said it’s not Russia.

I will say this: I don’t see any reason why it would be. But I really do want to see the server but I have confidence in both parties.

I really believe that this will probably go on for a while, but I don’t think it can go on without finding out what happened to the server. What happened to the servers of the Pakistani gentleman that worked on the DNC?

Where are those servers? They’re missing. Where are they? What happened to Hillary Clinton’s emails? 33,000 emails gone, just gone. I think in Russia they wouldn’t be gone so easily.

I think it’s a disgrace that we can’t get Hillary Clinton’s 33,000 emails.

I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today and what he did is an incredible offer.

He offered to have the people working on the case come and work with their investigators, with respect to the 12 people. I think that’s an incredible offer. Okay? Thank you.

That is, after a lengthy meeting with Putin, Trump simply decided — perhaps because he had to decide — that Russia had not attacked the US at all. His solution, per Putin’s suggestion, was to send people who had been investigating Russian crimes to Russia, something that has gotten people killed in the past.

Meanwhile, Trump started dismantling the cybersecurity defenses built up during the Obama Administration. The first day John Bolton started as Trump’s third National Security Advisor, experienced cybersecurity guy Tom Bossert was fired as Homeland Security czar.

President Donald Trump’s homeland security adviser, Tom Bossert, was fired Tuesday as the president’s new national security adviser, John Bolton, consolidates power in the White House.

On Monday night, Bossert was socializing with current and former U.S. Intelligence officials at a conference in Sea Island, Georgia, and a source close to him told NBC News that the adviser was unaware of any intention at the White House to seek his resignation, and that he had no plans to quit.

“New team,” the source said, without further explanation.

Bossert was called in to Bolton’s office early Tuesday morning and told that he was being fired, according to a source with direct knowledge.

Trump’s associates may have figured out that Bossert had provided key details about the events at Mar a Lago in December 2016; he also appears to have provided emails to Mueller’s team that helped them to get those of others like Jared Kushner and Steve Bannon.

Rob Joyce, a top NSA expert, was moved back to the Agency a few months after Bossert left. So even as Bolton was downgrading the pandemic expertise within NSC, he was also eliminating top cybersecurity talent.

That was done because Bolton is a power hungry asshole. But Trump continued eliminating cybersecurity expertise (even beyond that ensuring secure elections) in a fit of pique after the election. At a time when this hack would have already started, Trump fired the head of CISA, Chris Krebs, along with a deputy because they refused to back his conspiracy theories about the election. Politico reported that, in Krebs’ absence, “There is ‘massive frustration with CISA on a sluggish response to agency breaches.'”

Cybersecurity was one area where Trump’s team really was every bit the match of Obama’s — if not better. But Trump fired or removed key people one after another.

Similarly, also in a fit of pique, Trump put one after another unqualified flunky in charge of the entire Intelligence Community, first Twitter troll Ric Grenell and then resume fluffer John Ratcliffe. He did so, in substantial part, because they would ensure that Congress would not get briefed on threats from Russia. He also did so to ensure documents that purportedly undermined the case that he had been elected with Russian help would be released to the public. Under the two men, the government released documents that might have revealed key details about sources and methods to the Russians, both on how they collected on the Russian Embassy and on how quickly the CIA picked up certain pieces of intelligence in summer 2016.

Finally, things have come full circle. After Flynn blew up a perfectly good plea agreement (I’ll show in a few days he still would have been better off with that) largely in the service of making unsubstantiated claims of abuse refuted even by Barr’s DOJ along the way, Barr needed to help him out of the legal pickle and jail time his shitty defense attorney Sidney Powell got him into. As part of that effort, the Attorney General of the United States moved to dismiss the prosecution based off a claim (one that conflicted with a filing submitted by his own DOJ months earlier) that Flynn did nothing wrong by calling up Russia to undermine sanctions imposed, in part, to punish them for a hack. The case was so weak, the team trying to invent excuses for why Flynn shouldn’t be prosecuted for lying to hide his attempts to undermine sanctions on Russia altered documents. And that still didn’t work.

And so, along with a Thanksgiving turkey, Trump pardoned Mike Flynn, his first act of lame duck clemency, for Flynn’s service in protecting Trump from accountability for, himself, undermining those sanctions. Trump came into office telling Russia not to worry about hacking the United States. Trump told them explicitly, to their face, not to worry about hacking the United States. And in pardoning Mike Flynn, Trump made it clear that Russia should not worry — about Trump at least — about hacking the Untied States.

We will presumably get more certainty in days ahead about whether Russia did this hack, as well as the many key targets of it. The real question, however, will be whether Trump will be held accountable for inviting it to happen.

Update: The NYT describes analysis pointing out that Trump continues to sow conspiracy theories about voter fraud while remaining silent about getting pwned by his buddy Putin.

Analysts said it was hard to know which was worse: that the federal government was blindsided again by Russian intelligence agencies, or that when it was evident what was happening, White House officials said nothing.

But this much is clear: While President Trump was complaining about the hack that wasn’t — the supposed manipulation of votes in an election he had clearly and fairly lost — he was silent on the fact that Russians were hacking the building next door to him: the United States Treasury.

Updated with link to Politico and expanded list of targets.

Update: Richard Blumenthal, after attending a classified briefing on this compromise, has repeatedly attributed it to Russia.

Mike Pompeo has similarly stated, as fact, that Russia did it.

In His Mike Flynn Opinion, Emmet Sullivan Made a Finding of Fact Against Billy Barr’s New Reality

/134 Comments/in , , /by

I’ve been unpacking the Judge Emmet Sullivan opinion dismissing Mike Flynn’s guilty verdicts.

This post lays out how Sullivan asserts authority to refuse the government’s motion to dismiss Flynn’s prosecution, but does not do so, because the question is moot.

This post shows that Sullivan laid out evidence that DOJ’s motion to dismiss was pretextual. He declined to rule that the motion itself was pretextual, because the question is moot. But he made it clear he thinks DOJ’s excuses for blowing up the Flynn prosecution are bullshit.

And this post notes that, before Sullivan started mooting the shit out of DOJ’s interest in his docket, he struck some documents that Sidney Powell had submitted to his docket because the government had not authenticated them, without at the same time striking another document that the government didn’t rely on but had not authenticated. It’s a tactical step, I think, that leaves everything else in his docket as authenticated, even though DOJ stopped short of standing by all those exhibits.

Before I get into what Sullivan says about Trump’s pardon power — which, make no mistake, Sullivan affirms as expansive — I’d like to lay out some findings of fact that Sullivan includes in this opinion. He includes a number of other findings of fact that are tangential to the question of a pardon but which Bill Barr and Donald Trump have staked a lot on. He does so, he explains, because the government has invited him to.

The Court is mindful that it is “particularly ill-suited” to reviewing the strength of the case. Wayte v. United States, 470 U.S. 598, 607 (1985); see also In re United States, 345 F.3d 454, 455 (7th Cir. 2003) (finding that the trial court’s belief that “the evidence was strong and conviction extremely likely” was an inappropriate basis to deny leave). That said, the role of the Court is to conduct an “examination of the record” in order to ensure that the government’s “efforts to terminate the prosecution [are not] tainted with impropriety.” Rinaldi, 434 U.S. at 30. Moreover, the Court examines the factual basis underlying the government’s reasons because not doing so would amount to rubber stamping the government’s decision, contrary to the requirement of Rule 48(a). Here, the government has invited the Court’s examination of its evidence. See Hr’g Tr., ECF No. 266 at 42:22-43:1 (stating that “we’re completely unafraid here to address . . . the specifics as to why we thought we needed to dismiss this case. . . . we’d be happy to go through the evidence.”). Accordingly, the Court will briefly address some of the evidence the government points to as it is troubled by the apparently pretextual nature of certain aspects of the government’s ever-evolving justifications. See Foster v. Chatman, 136 S. Ct. 1737, 1751 (2016) (“[T]he prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual.”).

The findings of fact Sullivan addresses primarily come in this paragraph on materiality… [my numbering throughout]

Several of the government’s arguments regarding materiality also appear to be irrelevant or to directly contradict previous statements the government has made in this case. For example, as Mr. Gleeson points out, many of the “bureaucratic formalities” [1] the government asserts reveal the “confusion and disagreement about the purpose and legitimacy of the interview and its investigative basis”—such as the drafting of the FBI’s Closing Communication or internal conversations between FBI and Department of Justice officials regarding whether to notify the Trump administration of Mr. Flynn’s false statements—are not relevant to proving materiality. See Amicus Reply Br., ECF No. 243 at 19. Nor is it [2] relevant whether Mr. Flynn was an “agent of Russia” or guilty of some other crime at the time he made the false statements. Furthermore, while the government argues that, “since the time of [Mr. Flynn’s guilty] plea, [3] extensive impeaching materials had emerged about key witnesses the government would need to prove its case,” Gov’t’s Reply, ECF No. 227 at 35; the government had been aware of much of this evidence since early on in the case, see, e.g., Gov’t’s Response Def.’s Mot. Compel, ECF No. 122 at 8-9.

And this passage assessing the evidence that Flynn’s lies were lies.

[4] With regard to the “inconsistent records” rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn. Furthermore, the government’s reliance on Director Comey’s opinion about whether Mr. Flynn lied is suspect given that Director Comey was not present at the interview and that there are valid questions regarding the admissibility of his personal opinion.

With regard to Mr. Flynn’s alleged “faulty memory,” Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, [5] who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office. With regard to the government’s concerns about the Assistant Director for Counter Intelligence’s contemplating the goal of the interview, [6] an objective interpretation of the notes in their entirety does not call into question the legitimacy of the interview. Finally, and critically, under the terms of Mr. Flynn’s cooperation agreement, [7] the government could have used his admissions at trial, see Plea Agreement, ECF No. 3 at 8 ¶ 11; but the government ignores this powerful evidence.

In these passages, District Court Judge Emmet Sullivan finds as fact that:

  1. The government’s assertion that there was confusion surrounding Mike Flynn’s interview does not change that his lies were material.
  2. DOJ’s [draft] conclusion that Flynn was not an agent of Russia does not change that his lies were material.
  3. The evidence impeaching Peter Strzok and others does not change that Flynn’s lies were material (and, as Sullivan notes, even the government agreed before Flynn pled guilty).
  4. Nothing in the public record substantiates that the 302 of Janaury 24, 2017 Flynn’s interview does not accurately reflect what happened in the interview.
  5. Flynn’s claims to be forgetful are not consistent with the fact that, as the incoming National Security Advisor, he personally asked Sergey Kislyak to undermine President Obama’s policy before Trump took office.
  6. Nothing in Bill Priestap’s notes call into question the legitimacy of the Mike Flynn interview.
  7. The government could have relied on Mike Flynn’s admissions at trial.

One way to think about this language is that Billy Barr attempted to create a new set of facts by submitting documents from the Jeffrey Jensen investigation to Sullivan’s docket and making false claims about them, thereby attempting to annul the set of facts that led DOJ (even DOJ under Bill Barr, repeatedly) to argue that Mike Flynn’s lies were serious. Judge Sullivan is having none of Billy Barr’s new reality, in significant part because DOJ has not explained what changed from its prior assertions of fact and partly because none of the claims it has made about the so-called new evidence refutes DOJ’s prior representations.

These findings of fact may have a more specific effect, though. Billy Barr has served up his different set of facts and based off those, John Durham is attempting to criminalize the decisions of the people that prosecuted Mike Flynn for telling the FBI material lies. DOJ generally has no basis to appeal Sullivan’s findings, because its position in the docket is (as Sullivan notes repeatedly) moot. But Durham has even less ability to contest Sullivan’s findings of fact; he has no standing.

So unless DOJ finds a way around the fact that they themselves have mooted any further involvement before Judge Sullivan, then, any further investigation into the circumstances of Flynn’s prosecution will have to contend with the fact that a judge has already found a number of key premises entertained by those pushing the investigation into the investigation to be false.

At least as of right now, it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

Judge Sullivan Calls Bullshit on DOJ’s Pretextual Reasons for Blowing Up the Mike Flynn Prosecution

/35 Comments/in , /by

As described in this post, Judge Emmet Sullivan dismissed Mike Flynn’s prosecution as moot. In his opinion dismissing the case, he asserted his authority to weigh whether DOJ’s motion to dismiss Flynn’s prosecution was in the public interest, while stopping short of doing so since the decision is moot. That part of the opinion affirmed District court authority to weigh whether DOJ has done something corrupt in blowing up Mike Flynn’s plea.

Along the way, Sullivan made it quite clear he believed that DOJ was lying about their two main excuses for blowing up Flynn’s prosecution — that his lies weren’t material nor were they clearly lies.

Given this context, the new legal positions the government took in its Rule 48(a) motion and at the motion hearing raise questions regarding its motives in moving to dismiss. The government advances two primary reasons8 justifying dismissing the case based on its assessment of the strength of the case: (1) it would be difficult to prove the materiality of Mr. Flynn’s false statements beyond a reasonable doubt; and (2) it would be difficult to prove the falsity of those statements beyond a reasonable doubt. See Gov’t’s Reply, ECF No. 227 at 31. As explained below, the Court finds both stated rationales dubious to say the least, arguably overcoming the strong presumption of regularity that usually attaches to prosecutorial decisions.

Sullivan argues Flynn’s lies were material under the DC circuit’s standard

As Sullivan laid out, in their efforts to justify blowing up the Mike Flynn prosecution, the government adopted a totally new standard for materiality.

In making its arguments, however, the government relies on a newly-minted definition of “materiality” that is more circumscribed than the standard in this Circuit. The government describes the materiality threshold as requiring more than “mere ‘relevance’”; rather, the false statement must have “probative weight” and be “reasonably likely to influence the tribunal in making a determination required to be made.” Gov’t’s Mot. Dismiss, ECF No. 198 at 12-13 (quoting Weinstock v. United States, 231 F.2d 699, 701 (D.C. Cir. 1956)). Therefore, “[t]he materiality threshold thus ensures that misstatements to investigators are criminalized only when linked to the particular ‘subject of [their] investigation.’” Id. at 13 (quoting United States v. Kim, 808 F. Supp. 2d 44, 59 (D.D.C. 2011)).

After laying out what the standard really is — whether a lie is capable of affecting the general function of the FBI — Sullivan then notes that the government had previously argued that Flynn’s lies were material.

Given the materiality threshold’s expansive scope, the government’s new use of the narrowed definition of “materiality” is perplexing, particularly given that the government has previously argued in this case that the materiality standard required only that a statement have a “natural tendency to influence, or [be] capable of influencing.” See Gov’t’s Surreply Def.’s Reply Support Mot. Compel, ECF No. 132 at 10-11. The government, for its part, offers no response as to why it relies on this new, more stringent definition. Nor does the government direct the Court’s attention to any other case in which it has advanced this highly-constrained interpretation of materiality as applied to a false statements case.

He then lays out how — going even further — DOJ claimed it didn’t need to adhere to any standard of law, much less the precedent for this circuit. Sullivan uses that to argue that the government has lost the presumption of regularity.

Notably, during the September 29, 2020 motion hearing, the government seemed to suggest that, when moving for dismissal of an action pursuant to Rule 48(a), the government need not refer to the correct materiality standard at all when determining whether a false statement is “material.” See Hr’g Tr., ECF No. 266 at 78:21-79:3 (“[W]hen we move to dismiss, the question in our mind is not what is the legal standard of materiality for whether the evidence here will be sufficient to sustain a conviction on appeal. The question is whether we, the Department of Justice, think this evidence is material . . . .”). In view of the government’s previous argument in this case that Mr. Flynn’s false statements were “absolutely material” because his false statements “went to the heart” of the FBI’s investigation, the government’s about-face, without explanation, raises concerns about the regularity of its decision-making process.

Importantly (as I’ll return to), the opinion engages in a page-long discussion about the bullshit excuses DOJ has floated to argue these lies weren’t material.

Several of the government’s arguments regarding materiality also appear to be irrelevant or to directly contradict previous statements the government has made in this case. For example, as Mr. Gleeson points out, many of the “bureaucratic formalities” the government asserts reveal the “confusion and disagreement about the purpose and legitimacy of the interview and its investigative basis”—such as the drafting of the FBI’s Closing Communication or internal conversations between FBI and Department of Justice officials regarding whether to notify the Trump administration of Mr. Flynn’s false statements—are not relevant to proving materiality. See Amicus Reply Br., ECF No. 243 at 19. Nor is it relevant whether Mr. Flynn was an “agent of Russia” or guilty of some other crime at the time he made the false statements. Furthermore, while the government argues that, “since the time of [Mr. Flynn’s guilty] plea, extensive impeaching materials had emerged about key witnesses the government would need to prove its case,” Gov’t’s Reply, ECF No. 227 at 35; the government had been aware of much of this evidence since early on in the case, see, e.g., Gov’t’s Response Def.’s Mot. Compel, ECF No. 122 at 8-9.

Sullivan closes that section by reasserting the standard that the government can’t just invent bullshit to justify its decisions.

Under Ammidown, the Court must be satisfied that the government undertook a “considered judgment,” 497 F.2d at 620; and asserting a factual basis that is largely irrelevant to meeting any legal threshold likely does not meet this standard.

Sullivan debunks DOJ’s claims that Flynn may not have lied

Then Sullivan debunks DOJ’s claims that there was any doubt that Flynn lied, focusing primarily on the import of the fact that Peter Strzok and Joe Pientka didn’t believe he exhibited signs of lying when walking out of the interview. Primarily, this discussion focuses on how the claim is legally irrelevant and conflicts with what DOJ has said in the past.

The government’s second rationale is that it “does not believe it could prove that Mr. Flynn knowingly and willfully made a false statement beyond a reasonable doubt.” Gov’t’s Mot. Dismiss, ECF No. 198 at 18; see also Gov’t’s Reply, ECF No. 227 at 38-39. To support this rationale, the government initially pointed to the fact, which was known at the time Mr. Flynn pled guilty, that the FBI agents who interviewed him did not think he was lying, and it also noted the “equivocal” or “indirect” nature of Mr. Flynn’s responses. Gov’t’s Mot. Dismiss, ECF No. 198 at 18. The government further contends that evidentiary problems have “emerged” including: (1) “inconsistent FBI records as to the actual questions and statements made,” id. at 19; (2) “Director [James] Comey’s own sentiment that the case was a ‘close one,’” id. (quoting Ex. 5 to Gov’t’s Mot. Dismiss, ECF No. 198); and (3) “substantial impeaching materials on the key witnesses,”9 Gov’t’s Reply, ECF No. 227 at 39.

[snip]

As an initial matter, whether or not the FBI agents thought Mr. Flynn was lying is irrelevant in a false statements case. See Brogan v. United States, 522 U.S. 398, 402 (1998). And the government has not explained how evidence that the government previously stated was “consistent and clear,” Gov’t’s Surreply, ECF No. 132 at 4-5; suddenly became “equivocal” or “indirect.” With regard to the “inconsistent records” rationale, the government has not pointed to evidence in the record in this case that contradicts the FD-302 that memorialized the FBI agents’ interview with Mr. Flynn.

Sullivan then goes on to debunk a lot of the other bullshit DOJ threw into his docket. I’ll return to this. But the important point is that Sullivan relied on DOJ’s past assertions to debunk the claims that DOJ later threw up.

Having reviewed DOJ’s two substantive excuses for blowing up Flynn’s prosecution, Sullivan suggests they’ve forfeited the presumption of regularity they’d need to convince him to dismiss Mike Flynn’s prosecution, but ultimately avoids saying whether he would have rejected their request or not because the question is moot.

Again, under Ammidown, the Court must be satisfied that the government undertook a “considered judgment.” 497 F.2d at 620. Asserting factual bases that are irrelevant to the legal standard, failing to explain the government’s disavowal of evidence in the record in this case, citing evidence that lacks probative value, failing to take into account the nature of Mr. Flynn’s position and his responsibilities, and failing to address powerful evidence available to the government likely do not meet this standard.

Thus, the application of Rule 48(a) to the facts of this case presents a close question. However, in view of the President’s decision to pardon Mr. Flynn, Mr. Flynn’s acceptance of the pardon, and for the reasons stated in the following section, the appropriate resolution is to deny as moot the government’s motion to dismiss pursuant to Rule 48(a).

So first Sullivan laid out that he had the authority to decide, but stopped short of deciding because the question is moot. Then he laid out abundant reason why DOJ had forfeited the presumption of regularity such that their rationale for asking that the case be dismissed would otherwise have to be accepted, but once again stops short of ruling, because the question is moot.

He has the authority to decide but won’t because the question is moot.

He shows all the evidence that the government is full of shit, but does not rule as such, because the question is moot.

Because the government has very little way to appeal either of these rulings, the rest of the opinion (and the steps Sullivan took to get there) will likely never be appealed. Sullivan has laid a record out that almost certainly cannot be challenged. He has used the mootness of the question as a shield to lay out two key judgments: that he could decide, and that he could have decided against the government.