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The Father of the DEA Dragnet Sics It on Free Speech

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BuzzFeed had an important scoop yesterday, revealing that Timothy Shea — the Billy Barr flunky who presided over the US Attorney’s Office in DC long enough to interfere in the Mike Flynn and Roger Stone prosecutions who has since been put in charge of the DEA — requested authority to engage in domestic surveillance targeting George Floyd protestors.

On top of the problematic implications of the move, in the abstract, it’s worth considering what it might mean more specifically. It might be best understood as Barr deploying all the investigative tools he finds so inexcusable when used against Trump associates being cultivated by a hostile foreign government, using them against Americans exercising their Freedom of Speech and Assembly.

Using the DEA to surveil protestors gives Barr a number of things (in addition to more bodies to throw at the problem). While the DOJ IG Report on Carter Page revealed the FBI has a source with tentacles into all branches of society, the DEA’s informant network is understood to be even more extensive, and often more easily leveraged because of steep war on drug sentences.

There’s good reason to believe the DEA’s access to Stingrays used to track cell phone location escapes the close scrutiny of other agencies. As Kim Zetter noted on Twitter, that may include Dirtboxes, plane-based Stingray technology.

But the FBI and, especially, the US Marshals also have that technology.

What they don’t necessarily have, however, is access to a surveillance program the precursor to which Barr approved, with no legal review, the last time he was Attorney General.

In 1992, Barr authorized the DEA to use a drug related subpoena authority, 876(a), to start collecting the call records between certain foreign countries and the United States. Over time, the dragnet came to include every country the government could claim had any involvement in narcotics trafficking. That dragnet was the model for the phone dragnet that Edward Snowden revealed in 2013. While it was shut down in the wake of the Snowden revelations (and after it became clear DOJ was using it for entirely unrelated investigations), OLC had initiated the process of reauthorizing it in 2014. Given Barr’s fondness for surveillance, it would be unsurprising if he had gotten Trump’s supine OLC to reauthorize and possibly expand its use.

So one thing Barr may be using is the kind of dragnet civil libertarians are celebrating the cessation of in Section 215.

But there’s another DEA dragnet that would be more powerful in this circumstance, and would not need reauthorization: Hemisphere, which was first disclosed in 2013. That’s a program operated under the Drug Czar’s authorities (and therefore substantially hidden under White House authorities). Rather than collect a dragnet itself, the government instead relies on the dragnet AT&T has collected over decades. It asks AT&T to do analysis, not just of call or text records, but also co-location.

A DOJ IG Report on the DEA’s various dragnets released in March 2019 makes it clear (based on redactions) that Hemisphere is still active.

There are many reasons why Barr might want his flunky at DEA to get involved in surveilling Americans exercising their First Amendment rights. Chief among them probably include DEA’s extensive informant network and DEA’s practice of mapping out entire networks based solely on subpoenas served on AT&T.

Both of those are things that Barr has said were totally inappropriate surveillance techniques deployed against political activity.

Curiously, he no longer has any apparent concern about deploying invasive surveillance against sensitive political issues.

In a Motion Claiming that Appointing an Amicus Is “Unprecedented,” Billy Barr Argues Against Billy Barr Twice More

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DOJ has availed itself of the opportunity to provide a response to Mike Flynn’s petition for a write of mandamus at the DC Circuit.

As I’ll show, I think the reason they did so was to make yet another argument that Mike Flynn can lie wherever and about whatever, but those lies may never be deemed material to a proceeding, and therefore he must go scot-free. Along the way, however, DOJ argues that merely appointing an amicus is a totally unprecedented act. And to get there, DOJ twice argues against DOJ.

DOJ says only DOJ can determine if Flynn can lie and lie and lie

I’ve long believed that Sullivan’s order that amicus John Gleeson consider whether Flynn should be held in contempt for perjury made Flynn’s challenge more airtight. Indeed, the DC Circuit didn’t even include that among the things it asked to be briefed. Nevertheless, Sullivan included it, mostly to point out that even if the Circuit resolved the motion to dismiss, the question of whether Flynn should be held in contempt remains. Sullivan argues along the way that contempt is part of the court’s inherent authority.

Regardless how this Court resolves the Rule 48 issue, questions remain whether Mr. Flynn should be subject to any sanction pursuant to statute, the Federal Rules, and federal courts’ inherent authority to discipline those who fail to tell the truth under oath and obstruct justice in the courtroom. See 18 U.S.C. §§ 401–402; Fed. R. Crim. P. 42; Chambers v. NASCO, Inc., 501 U.S. 32, 41–44 (1991) (upholding court’s inherent authority to punish “acts which degrade the judicial system, including … misleading and lying to the Court” (quotations omitted)). This factbound inquiry involves well-established Article III powers, and the district court should be permitted to address it in the first instance.

The contempt power is “settled law” that “is essential to the administration of justice.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 (1987). It springs from the court’s Article III responsibility to protect its essential functions, including preserving the integrity of courts and the truthseeking process. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994). Under this inherent power, “a court may issue orders, punish for contempt, vacate judgments obtained by fraud, conduct investigations as necessary to exercise the power, bar persons from the courtroom, assess attorney’s fees, and dismiss actions.” United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993).

To be clear, a contempt finding or sanction against Mr. Flynn may prove unwarranted. If the representations in his January 2020 declaration are true, they present attenuating circumstances for his prior, contrary statements. But the nature and extent of Mr. Flynn’s reversals under oath—from whether he lied to the government in January and March 2017, to whether he was coerced into pleading guilty, misled by his former attorneys, or improperly dissuaded from withdrawing his guilty plea in 2018 when Judge Sullivan offered that option—raise questions that any judge should take seriously. They thus provide a basis for invoking the district court’s authority to “conduct investigations as necessary.” Id.7

7 Contrary to Mr. Flynn’s suggestion (Pet. 11–17), Judge Sullivan’s appointment of an amicus to brief the contempt power is appropriate. Because contempt implicates core Article III powers, “Courts cannot be at the mercy of another Branch in deciding whether [contempt] proceedings should be initiated.” Young, 481 U.S. at 796. That is why the Federal Rules explicitly authorize the appointment of a special prosecutor to investigate contempt. See id.; see also Fed. R. Crim. P. 42(a)(2). Judge Sullivan’s amicus order is more restrained: It does not appoint Judge Gleeson to prosecute any contempt charge, but merely to address whether initiating a contempt proceeding here would be appropriate, and gives Mr. Flynn the last word on the question

The government must have anticipated this, because it argues at length that Flynn’s lies didn’t obstruct anything, without ever explaining why not. Along the way, they bizarrely argue there’s no evidence of he lied out of contempt for the court, suggesting that this happens all the time.

Petitioner also cannot be prosecuted for contempt because there is no evidence of “contumacious intent.” Brown, 454 F.2d at 1007. Even assuming that petitioner had the intent to commit perjury, that would not establish that he had the “inten[t] to obstruct the administration of justice.” Sealed Case, 627 F.3d at 1238. There is no indication that petitioner pleaded guilty and then moved to withdraw his plea as “part of some greater design to interfere with judicial proceedings.” Dunnigan, 507 U.S. at 93. Rather, the record shows that petitioner—like other defendants who enter pleas they later seek to withdraw— pleaded guilty with the intent to resolve the allegations against him on the best terms he thought possible at the time. Doc. 160-23, at 8-9. Our adversarial system treats plea colloquies and later motions to withdraw as an accepted part of normal judicial proceedings. Fed. R. Crim. P. 11(b), (d). An intent to acquiesce in the prosecution’s charges, even falsely, is not an intent to interfere with judicial proceedings themselves for purposes of contempt under Section 401(1).

DOJ then argues that only DOJ could prosecute Flynn for perjury.

I have zero doubt that Neomi Rao will adopt this view, for present purposes, because she has never met a ridiculous argument she didn’t like. But it would be shameful for any self-respecting judge to do so, as it effectively eviscerates judicial authority.

Appointing an amicus is unprecedented

DOJ then argues that Judge Sullivan did something unprecedented, which is what they use to justify issuing a writ.

III. A Writ Of Mandamus Is Appropriate And Necessary Relief In Light Of The District Court’s Unprecedented Order

Several pages later, after laying out the very high bar for a writ of mandamus, the government describes what Sullivan has done: appoint an amicus.

For the same reasons that the mandamus factors were met in Fokker and In re United States, those factors are met here. The only distinction between the cases is that, in Fokker and In re United States, the district court had entered an order denying the motion, while here the district court has entered an order providing for further proceedings and contemplating additional, court-initiated criminal charges.

The government is basically arguing that even appointing an amicus amounts to deciding against Flynn. Nowhere does the government claim that Flynn would be injured by this amicus, and Flynn’s only claim to injury is the delay (he himself is responsible for over a year of delay on this case).

Billy Barr argues against Billy Barr

Appropriately, for a DOJ that has refuted its repeated claims that Flynn’s lies were material by arguing they weren’t material, Billy Barr once against argues against Billy Barr.

This brief does so in two ways.

As I’ve noted, DOJ needs some kind of explanation for what changed their opinion. In front of Sullivan, they argued they had gotten “new” information, none of which is new.

Jocelyn Ballantine is (inexplicably) on this brief. She cannot argue those other things are new, because she knew all of them when she argued, in the past, that Flynn’s lies were material.

So this brief, while presenting all that other not-new information (without making any of the arguments necessary to justify DOJ’s flip-flop), doesn’t argue that it is new.

Instead, this brief argues that the investigation into Peter Strzok and Andrew McCabe is “new.”

Thereafter, new information emerged about essential participants in the investigation. Strzok was removed from the investigation due to apparent political bias and was later terminated from the FBI. The second interviewing agent was criticized by the Inspector General for his tactics in connection with the larger investigation. See Doc. 169, at 6-7. And McCabe was terminated after the Department of Justice determined that he lied under oath, including to FBI agents. Office of the Inspector General, U.S. Dep’t of Justice, A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe 2 (Feb. 2018).

There are several problems with this.

First of all, DOJ never managed to indict McCabe for his alleged lies, and whether he lied is currently being litigated. Also, DOJ IG has reviewed Strzok’s conduct at great length — including the documents that at the District level DOJ claimed falsely were new — and it affirmatively stated that any bias Strzok have did not affect any decision reviewed.

But the most important reason this is outright absurd is that both of these things were public and known to Flynn on December 18, 2018 (indeed, the investigation into Strzok was known to Flynn when he pled the first time). As Beth Wilkinson noted in Sullivan’s response, Flynn disclaimed those things under oath!!!

After being placed under oath again, Mr. Flynn confirmed that (1) he did not wish to “challenge the circumstances” surrounding his FBI interview; (2) by pleading guilty he would be giving up “forever” his right to challenge that interview; (3) he knew at the time of his interview that lying to the FBI was a crime; and (4) he was “satisfied with the services provided by [his] attorneys.” Id. at 7–9. Mr. Flynn also disclaimed any reliance on revelations that certain FBI officials involved in the interview were being investigated for misconduct. Id. at 9.

We’re five months past the time Billy Barr appointed Jeffrey Jensen to go come up with some excuse to dismiss the Flynn prosecution, and DOJ still can’t decide (or find anything) what is new to justify the flip-flop.

But there is an even bigger Billy Barr belly flop in this response. As Wilkinson noted in the Sullivan response, in its motion to dismiss, DOJ acknowledged that it can only dismiss the prosecution with leave of the judge.

The government’s motion acknowledges that Rule 48 does not require Judge Sullivan to serve as a mere rubber stamp.

[snip]

First, the motion acknowledges that a Rule 48(a) dismissal requires leave of the court. Id. at 10. While the government argued that the court’s discretion was “narrow” and “circumscribed,” id., it did not argue that the court lacked discretion altogether.

Barr reiterated this point in his interview with Catherine Herridge.

Does Judge Sullivan have a say?

Yes. Under the rules, the case can be dismissed with leave of court. Generally, the courts have said that that provision is in there to protect defendants, to make sure the government doesn’t play games by bringing a charge and then dismissing it; bringing another charge, dismissing it. But he does have a say.

Now, after Bill Barr’s DOJ has twice said that the Judge has a say, Billy Barr’s DOJ argues that the District Court has no authority to reject it.

Simply put, the district court has no authority to reject the Executive’s conclusion that those reasons justify a dismissal of the charges.

Again, Neomi Rao will have no embarrassment in agreeing even with a seemingly schizophrenic argument that will help Trump out, and she may well bring Karen Henderson along.

But this is an embarrassment. Bill Barr keeps shredding the credibility of the Justice Department by arguing against past arguments he has personally approved, even very recent ones. There’s no longer any pretense they have to make and sustain an argument, only provide words on a page for captive judges to rubber stamp.

Stealing Elections: The Underlying Assumption behind Billy Barr’s Flip-Flop on the Materiality of Flynn’s Lies

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Marty Lederman has a very long piece assessing DOJ’s motion to dismiss the Mike Flynn case, one that pulls together a lot of the public record (including details, like about DOJ’s January 24, 2017 sentencing memorandum, that haven’t gotten attention other than at this site). As a very sober assessment that criticizes the FBI but lays out the national security implications, it’s well worth reading.

Even after he wades through all those details, though, Lederman argues that the important takeaway isn’t whether Flynn will do prison time or not (he notes, as I have, that Flynn will be pardoned in any case), but instead what this incident says about Bill Barr.

Unfortunately, just as with the public’s anticipation of and reaction to the Mueller investigation, the inordinate focus on whether a particular individual committed one or another offense under the U.S. criminal code is diverting attention from where it ought to be, on much more significant matters of constitutional governance.

Most importantly, as I’ll explain, what’s most alarming and troubling about the DOJ brief itself is not that it asks the court for leave to dismiss the charge against Flynn, but that it depends upon the rather shocking view of the Attorney General and the Acting U.S. Attorney for the District of Columbia that Flynn’s underlying conduct in 2016 and 2017 was unobjectionable and that therefore there wasn’t a “legitimate” basis for the FBI to be investigating Flynn’s secret communications with the Russian Ambassador at all, even though Russia had just completed an elaborate effort to manipulate the American electoral process in order to help elect Donald Trump.

[snip]

There is, however, at least one other possibility—one that’s much more troubling but that doesn’t involve prosecutorial “bad faith,” as such:  It could be, as Charlie Savage recently put it, that Attorney General Barr sincerely “considers to be illegitimate the government’s counterintelligence effort to understand the scope of Russian election interference in 2016 and any links to the Trump campaign.”  That would explain the astounding assertions in the DOJ motion that Flynn’s calls with Kislyak “were entirely appropriate on their face” and that there wasn’t any “legitimate” basis for a counterintelligence investigation, even after Flynn lied to the Vice-President-Elect about the content of the calls.  Indeed, in a recent interview, Attorney General Barr asserted that the FBI investigation was “based on a perfectly legitimate and appropriate call [Flynn] made as a member of the transition.”  According to Barr, there “was nothing wrong with it whatever. In fact, it was laudable.”

If that’s the reason Barr insisted on moving to dismiss the Flynn charge, it raises a far, far greater problem than whether Michael Flynn is or isn’t convicted of a criminal offense.  Such a view reflects an alarming disregard for the constitutional difference between an incumbent President and the incoming administration.  It ignores the harms of engaging in such private diplomacy in secret, without the knowledge of the State Department.  It treats as “laudable” an effort to undermine the incumbent President’s conduct of foreign affairs in real time—and to do so in order to accommodate a hostile nation that had just engaged in a concerted effort to distort the U.S. presidential campaign in order to secure the election of the very President whose agent is engaged in the stealth diplomacy, and where that very President (and/or his agent engaged in the shadow communications) might possibly be in debt to that nation, and/or compromised by it.  It also assumes that the FBI should have turned a blind eye to all this even after several top officials of the new administration made repeated false representations to the public about the new National Security Advisor’s communications with that foreign power, either knowing that the statements were false or, more troubling still, having been assured by Flynn that the communications were very different from what the Bureau knew them to be.  If the Attorney General of the United States believes all of that conduct was “legitimate,” “appropriate” and “laudable,” and that there wasn’t any “legitimate” basis for investigating it, then how can anyone be confident that the Department of Justice under his stewardship will faithfully fulfill its constitutional responsibilities?

I think Lederman is right: Even more than the question of whether Flynn does time is the question of what it means that Barr intervened and — based off no new evidence — weighed in to say that it was laudable that Flynn called up Russia and undermined the punishment Obama imposed after Russia tampered in the election and illegitimate for FBI to investigate why he did so (predictably, the motion to dismiss doesn’t deal with Flynn’s work for Turkey).

But I would go further.

Lederman is rightly offended that Bill Barr has just given sanction to undermining the constitutional transition between one administration and another.

But that’s not all that the FBI was investigating, nor is it what the record suggests Barr is sanctioning.

In his post, Lederman suggests the FBI didn’t take any of the logical steps to chase down Flynn as a counterintelligence concern.

As I hoped I’ve shown above, that was precisely correct—the principal objective of any interview with Flynn should have been to get to the bottom of the potential counterintelligence threat.  FBI Director Comey himself later testified that he sent his agents to interview Flynn on January 24, 2017 at least in part because there was a “disconnect” between what the Vice President was saying in public and what Flynn had in fact said to Kislyak, and Comey wanted his agents “to sit before [Flynn] and say ‘what is the deal?’”  And FBI Counterintelligence Chief Bill Priestap apparently agreed.  His notes from that morning state his view that “if [Flynn] initially lies, then we present him [redacted] and he admits it, document for DOJ, and let them decide how to address it.”

As far as the available public record shows, however, the agents who interviewed Flynn didn’t take that route.  Instead, it appears that Bureau leadership apparently decided before the interview that if Flynn didn’t confirm to the agents what they knew he had said to Kislyak, “they would not confront him or talk him through it.”  (The quote is from a later 302 report of an interview with one of the agents, Peter Strzok.  Unfortunately, the reasons for that decision appear to be redacted from Strzok’s 302 Report.  Nor is it clear who made this tactical decision.)  In the interview itself, Flynn said he couldn’t recall any discussion with Kislyak of the sanctions and expulsions, even after the agents used his own words from those conversations in order to jog his memory (and/or to subtly signal to him that they had a recording).  And then the agents left it at that.  They didn’t confront Flynn with evidence of what he had said to Kislyak; didn’t ask him why he said such things; about who else, if anyone, he discussed the call with, before or after; why he had disregarded the Obama administration’s pointed request that he not have such conversations; why he had lied to Pence, et al.; etc.  In other words, they didn’t do any of the things one might expect investigators to do if their goal was to get to the bottom of the case, and assess the scope and degree of any possible counterintelligence threat, during that interview.  Instead, all they appeared to accomplish was to confirm that Flynn was committed to lying about his calls with Kislyak.

This is the one part of Lederman’s post that I believe is wrong.

On January 24, 2017, the FBI would have learned that Flynn was going to continue to lie about his discussion of sanctions. But the evidence would still have supported an interpretation that Flynn had gone rogue, that he — someone who had been paid directly by Russia in the previous year and met directly with Putin — had decided to undermine all of US policy in response to the Russian operation all by himself.

That interpretation would change.

Moreover, the record shows the FBI did take next steps, but next steps that served to get at the key purpose for Flynn’s lies, to hide that he had consulted with Mar-a-Lago before calling Kislyak. As I have laid out here, the FBI did some call records analysis (on Flynn’s private phone, because he hadn’t used his government issue BlackBerry). That would have disclosed a bunch of calls to Mar-a-Lago beforehand, calls that were clearly inconsistent with Flynn’s claims to the FBI. Ultimately, FBI obtained the devices that first Flynn, and then other members of the Transition had used. Those would show emails explicitly discussing strategy on sanctions. Between getting those communications and getting Flynn to flip, FBI would eventually have gotten KT McFarland to tell her version of the story.

After a year of work, the FBI would have substantiated that Flynn’s lies served to hide his consultation with Mar-a-Lago. Mueller never got him or McFarland or Steve Bannon to admit that Trump weighed in ahead of time (and Mueller was deliberately coy about whether he has phone records suggesting he did).

Ultimately, though, Mueller was never able to answer a key question: whether Trump had ordered Flynn to do what he did.

Although transition officials at Mara-Lago had some concern about possible Russian reactions to the sanctions, the investigation did not identify evidence that the President-Elect asked Flynn to make any request to Kislyak.

As Lederman himself notes, Trump blew off questions about his role in all of this when asked.

Although it’s therefore almost certain Trump knew at least roughly what Flynn planned to say to Kislyak, the Mueller investigation did not find any evidence that Trump directed Flynn to say anything about sanctions.  (Mueller asked Trump specifically about these incidents (see Questions V(b)-(e)), but in his written responses the President … simply ignored those questions, as though they hadn’t even been asked.)  Several weeks later, then-President Trump said in a press conference that although he didn’t direct Flynn to discuss sanctions with Kislyak, “it certainly would have been okay with me if he did.  I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.”

And Lederman notes the part of the January sentencing memo that describes how central a question sanctions were to Mueller’s investigation.

In a sentencing memorandum it filed in January 2020, the Department of Justice explained that after Flynn’s calls with Kislyak and the false stories that Pence and others were purveying, the FBI “did not know the totality of what had occurred between the defendant and the Russians,” and that “determining the extent of [Flynn’s] actions, why [he] took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.”  This was particularly true because “[a]ny effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia.”

What he doesn’t consider, however (though he comes awfully close), is the aspect of Mueller’s investigation that considered whether there was a quid pro quo.

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

That is, Mueller wasn’t just investigating whether Trump was friendly to Russia because he was friendly to Russia or whether he was friendly to Russia out of tacit acknowledgement that Russia had helped him.

Mueller was also investigating (and parts of DOJ may still be investigating) whether Trump entered into one or more quid pro quos in which he accepted help getting elected in exchange for implicit or explicit pay-offs later.

Whether or not Mueller proved a quid pro quo (and there are aspects of this that remain ongoing, or recently were ongoing before Barr’s latest efforts to undermine them), that was an obvious, legitimate topic for investigation after a campaign advisor got approached about Russia’s help in April and after Trump asked Russia for help in the same press appearance where he offered to recognize Russia’s annexation of Crimea.

That’s what FBI’s investigation ultimately became. That’s the question the answer to which Flynn’s lies about consulting with Mar-a-Lago have obscured. That is the part of the investigation that Flynn’s lies had a material impact on.

Bill Barr is saying it was illegitimate for the FBI to investigate whether the incoming President engaged in a quid pro quo to get elected and therefore Flynn’s lies that hid key details needed to answer that question are not material to any investigation that FBI should be engaging in.

And he’s saying it just before campaign season begins again in earnest.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What are the consequences for these individuals?

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

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

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

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

Flynn Was Hiding that He Coordinated His Kislyak Call with Mar-A-Lago

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One of the defenses the frothy right — from Billy Barr down to bots on Twitter — keeps making about Mike Flynn is that because he knew his calls with Sergey Kislyak would be recorded, he would know that the FBI knew what he had said during his January 24, 2017 interview, and so had no reason to lie.

Indeed, whereas DOJ reclassified stuff from an  Andrew McCabe memo that was made public last year (hiding McCabe’s concern about leaks), the only new line in McCabe’s memo they declassified served to substantiate Flynn’s acknowledgment that FBI knew what he had said to Kislyak.

Mr. Flynn, himself a former Director of the Defense Intelligence Agency, stated that he readily expected that the FBI already knew the contents of his conversations with the ambassador, stating: “you listen to everything they say.”

In their motion to dismiss the Flynn prosecution, DOJ used this quotation of Flynn to claim that because FBI already knew what he said with Kislyak, they had no need to interview Flynn.

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said.

Except DOJ and all of Flynn’s frothers are missing (or suppressing) something so obvious I pointed it out when Flynn’s 302 was first released in heavily redacted form 18 months ago.

Flynn wasn’t lying to hide what he said to Kislyak.

He was lying to hide that he had coordinated with people at Mar-a-Lago before speaking with Kislyak.

In the 302 of his January 24, 2017 interview, for example, FBI agents described Flynn attributing the delay in returning Kislyak’s text on December 28 (and, we now know, the Russian Embassy’s call) to the shitty cell reception in Dominican Republic.

Shortly after Christmas, 2016, FLYNN took a vacation to the Dominican Republic with his wife. On December 28th, KISYLAK sent FLYNN a text stating, “Can you call me?” FLYNN noted cellular reception was poor and he was not checking his phone regularly, and consequently did not see the text until approximately 24 hours later. Upon seeing the text, FLYNN responded that he would call in 15-20 minutes, and he and KISLYAK subsequently spoke.

After Agents circled around to ask whether he had discussed the expulsions of diplomats (which, incidentally, I think is a fourth lie, one not charged, suggesting his comments on expulsions go beyond what appears in public reports), Flynn claimed he didn’t know that Obama had imposed the sanctions at all because he wasn’t watching the news and his government BlackBerry wasn’t working (thereby confirming he returned Kislyak’s call using a device the government couldn’t obtain without legal process).

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about the PUTIN/TRUMP VTC and the “Astana thing” (the Kazakhstan conference described earlier). FLYNN noted he was not aware of the then-upcoming actions as he did not have access to television news in the Dominican Republic and his government BlackBerry was not working.

When cued with his specific “tit-for-tat” comment, Flynn again claimed not to have known about the sanctions before his call.

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

When asked one more time about his calls that day, he again pointed to Dominican Republic’s shitty cell service to claim ignorance of the sanctions.

FLYNN remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues. FLYNN reflected and stated he did not think he would have had a conversation with KISLYAK about the matter, as he did not know the expulsions were coming.

Three different times in this interview, Flynn claimed he did not know about the sanctions before speaking with Kislyak, and in a fourth response, he falsely attributed all the delay in returning Kislyak’s call exclusively to the shitty cell service. But according to the Mueller Report, he had found out about the sanctions from a text a KT McFarland assistant sent him, if not before.

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

The sanctions were announced publicly on December 29, 2016. 1231 At 1 :53 p.m. that day, McFarland began exchanging emails with multiple Transition Team members and advisors about the impact the sanctions would have on the incoming Administration. 1232 At 2:07 p.m., a Transition Team member texted Flynn a link to a New York Times article about the sanctions. 1233 At 2:29 p.m., McFarland called Flynn, but they did not talk. 1234 Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237 McFarland also believed she may have discussed the sanctions with Priebus, and likewise told him that Flynn was scheduled to talk to Kislyak that night. 1238 At 3: 14 p.m., Flynn texted a Transition Team member who was assisting McFarland, “Time for a call???”1239 The Transition Team member responded that McFarland was on the phone with Tom Bossert, a Transition Team senior official, to which Flynn responded, “Tit for tat w Russia not good. Russian AMBO reaching out to me today.” 1240

In fact, Flynn’s specific testimony was not that he had waited to call Kislyak back because of connection issues (though that was probably part of it), but because he wanted to consult with McFarland and others first. He returned Kislyak’s call immediately after consulting with McFarland.

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Not only did Flynn make efforts — by lying — to hide his consultation with Mar-a-Lago when he was interviewed on January 24, but after Kislyak relayed to Flynn that Putin had specifically taken Flynn’s call into account, Flynn took immediate efforts to hide that sanctions had come up by writing McFarland a cover email she could share with others that didn’t mention sanctions.

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267

Flynn knew the FBI had access to the Kislyak transcripts when they interviewed him. Kislyak was a foreign target and so fair game.

But Flynn believed the FBI might not access his communications with the rest of the team (indeed, once Trump’s people discovered Mueller had obtained the Transition communications from GSA in the wake of Flynn’s guilty plea, they threw an every-loving hissy fit). Not just Flynn, but everyone else, was trying to cover up those conversations in which they had strategized the call. Indeed, even after Flynn pled guilty, the White House scripted Bannon to deny them.

And the difference — the fact that Flynn wasn’t trying to hide his calls with Kislyak so much as he was trying to hide his consultations with the people at Trump’s resort — conclusively demonstrates why the lies were material. The FBI knew what Flynn had said to Kislyak, but on January 24, they FBI didn’t know how many calls Flynn had exchanged with others at Mar-a-Lago before calling Kislyak. The Mary McCord 302 reveals analysis of Flynn’s call records had not yet been done by February 16.

McCord’s notes (page 42) reflect that at that time, analysis of Flynn’s phone records was nearly done.

The FBI would have used those call records — of what Flynn made clear in his interview were for his personal, not his government issued (secure) phone — to identify whether it was true that Flynn had been cut off in Dominican Republic, and whether it was true that he really didn’t know about sanctions when he spoke to Kislyak.

Indeed, the FBI were still trying to understand all the details about the discussions at Mar-a-Lago until they obtained the Transition emails with a warrant, which probably happened on August 25, 2017. KT McFarland claimed not to remember the 20 minute call with Flynn in her second interview on September 14, 2017, something she would un-forget after Flynn pled guilty, though Barr’s DOJ is hiding the rest of the details about that call. And FBI didn’t get a full accounting of what happened between Flynn and Mar-a-Lago at least until McFarland started unforgetting on December 22, 2017 in the wake of Flynn’s plea.

In short, it took the FBI almost an entire year to get a general understanding of the events surrounding that call in significant part because of the lies Flynn told in the interview, lies about stuff that didn’t show up in the Kislyak transcript. For much of that time, FBI would have had reason to believe Flynn had acted on his own, giving FBI every reason to believe Flynn was secretly working with Russia (like they were coming to understand he had secretly been on the payroll of Turkey).

That’s the definition of materiality. And, as I’ve noted, Bill Barr’s DOJ is on the record agreeing, in the still-active sentencing memorandum for Mike Flynn submitted in January, that it was material precisely because FBI needed to understand who ordered him to make that call.

Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

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

Had Trump admitted, right from the start, that he ordered the Code Red, this wouldn’t have been material. Had Mike Flynn been honest that he had coordinated his response with advisors sitting at Mar-a-Lago with Trump, this might not have been material. Had KT McFarland admitted her side of the consultations when interviewed by the FBI in August and September 2017, it might change the materiality of Flynn’s lies.

But Donald Trump and Mike Flynn and KT McFarland treated this as something to hide for almost the entirety of a year. And that’s why the lies mattered.

The Trump Administration Disproves the Trump Administration’s Claims that Mike Flynn’s Communications with Sergey Kislyak Were Routine

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In this post, I showed how former National Security Advisor Susan Rice’s memorialization of a conversation about Mike Flynn’s calls to Sergey Kislyak with President Obama and others on January 5, 2017 made it clear that Obama wanted nothing to do with any investigation into Flynn. I noted there was one redacted passage that seemed, “consistent with Obama adopting some caution, but deferring any more drastic measures unless, ‘anything changes in the next few weeks.'”

In a never-ending bid to distract from Trump’s disastrous performance on COVID, the Trump Administration has now released the full letter, which reads this way:

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Corney and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

Director Comey affirmed that he is proceeding “by the book” as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that could be an issue as it relates to sharing information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied, “potentially.” He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that “the level of communication is unusual.”

The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.

The italicized passage is new. It reveals that Flynn was speaking to Kislyak “frequently,” a comment which is consistent with Sally Yates’ concern about the “back and forth” between Kislyak in which Flynn was making “specific asks.” Some of those specific asks Yates described in her Mueller interview remain redacted (as are the transcripts of Flynn’s calls with Kislyak themselves).

In DOJ’s motion to dismiss Flynn’s prosecution, they argue that Flynn’s calls were routine calls made to “build relationships.”

Such calls are not uncommon when incumbent public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts.

But the motion addresses only a subset of calls, not (for example) the face-to-face meeting with Kislyak on December 1, or calls Flynn made during the election (his 302 mentions one he made in January 2016, at a time he claimed not to be working with Trump, but there are reports there were more).

Most importantly, the filing doesn’t address a key reason why the FBI had reason to investigate Mike Flynn: the frequency of his calls to Kislyak were “unusual.”

In an effort to gaslight Trump supporters, then, the Trump Administration just showed that DOJ’s motion to dismiss falsely treated as normal communications that were not.

Which, given that the Trump Administration just produced evidence that proves DOJ’s motion to dismiss made a false claim, provides Sullivan all the more reason to demand all the transcripts between Flynn and Kislyak.

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

MR. VAN GRACK: Yes, Your Honor.

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

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

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

MR. VAN GRACK: I believe so.

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

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

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

MR. VAN GRACK: Yes, Your Honor.

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

THE COURT: Yes, Counsel.

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

[snip]

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

Misdirection: The FBI was corrupt during the 2016 election

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

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

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

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

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

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

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

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

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

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

Handling Agent: “Trump!”

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

Handling Agent: “Yes it did.”

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

Handling Agent: “LOL”

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

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

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

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

Glenn continues to misrepresent what the Mueller Report was.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

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

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

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

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

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

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

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

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

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

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

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

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

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

False claim: FBI planted Stefan Halper within the Trump campaign

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Claim without evidence: Barack Obama disliked Flynn

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

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

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

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

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

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

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

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

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

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

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

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

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

Date and substance problems describing the sanctions

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

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

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

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

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

Elaboration: Claims about the conversation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Today’s version redacts that line as classified.

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

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

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

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

Bill Barr and Chris Wray Schedule a Press Conference to Admit Trump Let an Al Qaeda Terrorist onto Our Military Base

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Today, Billy Barr and Chris Wray had a press conference to announce that — in spite of his Muslim Ban — Trump had permitted an affiliate of AQAP, Mohammed Saeed Alshamrani, into this country, and onto a military base, where he bought a gun and murdered three sailors.

The evidence we’ve been able to develop from the killer’s devices shows that the Pensacola attack was actually the brutal culmination of years of planning and preparation, by a longtime AQAP associate.

The new evidence shows that al-Shamrani had radicalized not after training here in the U.S. but at least as far back as 2015, and that he had been connecting and associating with a number of dangerous AQAP operatives ever since. It shows that al-Shamrani described a desire to learn about flying years ago, around the same time he talked about attending the Saudi Air Force Academy in order to carry out what he called a “special operation.” And he then pressed his plans forward, joining the Air Force and bringing his plot here—to America.

Thanks to a lot of hard work by our people, we now know that al-Shamrani continued to associate with AQAP even while living in Texas and in Florida; and that in the months before the attack, while he was here among us, he talked with AQAP about his plans and tactics—taking advantage of the information he acquired here, to assess how many people he could try to kill.

After presenting this evidence, Barr and Wray didn’t announce that Trump is ending his Muslim Ban or retargeting it to focus on countries like Saudi Arabia that have always been a risk for terrorism. Barr and Wray didn’t explain how it was that the Trump Administration’s vetting was so poor that they let Alshamrani into a flight training program in Pensacola without vetting his social media or searching his phone on arrival. They didn’t explain how they’ll make sure foreign military officers we’re training don’t continue to plot attacks under our nose.

Instead, Barr and Wray used this opportunity to explain that Apple has to make all our phones less secure even after the FBI succeeded in accessing Alshamrani’s phones.

Barr and Wray didn’t explain why the obvious solution is not, instead, to properly vet military officers from countries that have attacked us in the past, including consensual searches of phones as those officers enter the country.

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

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

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

[snip]

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

[snip]

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

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

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

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

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

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

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

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

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

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

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

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

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

Director Comey testified that he authorized the closure of the CI investigation into General Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure was imminent.

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Billy Barr Put a Firearms Prosecutor in Charge of Reviewing a Counterintelligence Investigation

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The NYT published a story yesterday that will be very handy for the amicus that Emmet Sullivan appointed in the Mike Flynn case, John Gleeson. It describes two pieces of evidence that St. Louis US Attorney Jeffrey Jensen (whom Barr ordered to conduct a review of Flynn’s prosecution) and Timothy Shea (whose name was on the motion to dismiss asking Sullivan to dismiss the case) failed to account for in their motion.

Most notably, prosecutors interviewed Bill Priestap two days before the motion to dismiss, on May 5. Priestap’s notes have been portrayed by Flynn’s team as proof that the FBI tried to entrap Flynn. In the interview, Priestap disputed the interpretation of the notes that had already been released a week earlier.

That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case. He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.

[snip]

Mr. Jensen and Ms. Ballantine, herself a veteran prosecutor, interviewed Mr. Priestap along with another prosecutor, Sayler Fleming, and an F.B.I. agent from St. Louis who was there to memorialize the encounter.

[snip]

Those notes reflected Mr. Priestap’s own thoughts before meeting with F.B.I. leadership to discuss how to question Mr. Flynn, the people said. A footnote in Mr. Shea’s motion included a reference to Mr. Priestap’s ruminations. The motion described them as “talking points.”

The notes also showed that the F.B.I. softened its interview strategy with Mr. Flynn. Officials decided that agents would be allowed to read back portions of the highly classified phone call transcripts to refresh Mr. Flynn’s memory. F.B.I. investigators felt at the time it was important to figure out whether Mr. Flynn would tell the truth in an interview.

The article also reveals the existence of an FBI email, dated April 23, that reflects the Bureau’s view that Prietap’s notes were not Brady material, but gave them to Flynn’s team only because they were not sensitive.

Eventually the F.B.I. agreed to release the documents because they contained no classified or sensitive material, even though they believed they were not required to share them with the defense, according to an email from lawyers in Mr. Boente’s office on April 23.

Finally, the article describes that Jensen started drafting the motion to dismiss “by the beginning of May,” which would be before interviewing Priestap (the FBI’s drafting of the Hillary declination before her interview is regarded as a key sin among the frothy right).

By the beginning of May, Mr. Jensen recommended to Mr. Barr that the charge be dropped, and the team began to draft the motion to dismiss it.

[snip]

As the lawyers digested the interview with Mr. Priestap, some prosecutors expressed concern that they were moving too fast. But other officials pointed out that in less than a week the department was due to respond to Mr. Flynn’s motion to dismiss the case, and argued against proceeding in that matter if they were about to drop the entire case.

So Jensen’s crack review of the propriety of the Flynn prosecution first turned over the document to Flynn, then started drafting the motion to dismiss, and only then decided to ask Priestap about what the notes mean. It will be interesting to discover whether whoever drafted the motion to dismiss had decided the notes were “talking points” before the Priestap interview and just ignored the interview entrely.

The NYT story reveals another detail, however: who, from Jensen’s team, is conducting this review, a St. Louis prosecutor named Sayler Fleming. Fleming’s day job seems to be entirely focused on prosecuting felon possession of firearms cases, along with typical related crimes, car-jacking and drug trafficking. Because of recent Supreme Court decision, that means he or she has fielded a bunch of appeals in recent months.

But nothing in PACER suggests he or she has any experience with counterintelligence at all, or even national security cases.

And that may explain one of the more egregious errors in the motion to dismiss. The motion admits that the case against Flynn, which was never closed, was predicated on both 18 USC 951 and FARA, two different kinds of Foreign Agent laws. But its analysis of the investigative purpose of the January 24, 2017 interview, claims that the FBI was only investigating the Logan Act.

Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act, 18 U.S.C. § 953. See Ex. 3 at 2-3; Ex. 7 at 1-2; Ex. 8 at 1-5, FBI Emails RE: Logan Act Jan. 4, 2017. Yet discussions with the Department of Justice resulted in the general view that the Logan Act would be difficult to prosecute. Ex. 3 at 2-3; Ex. 4 at 1-2, FBI FD-302, Interview of Sally Yates, Aug. 15, 2017 (Sept. 7, 2017); Ex. 5 at 9. The FBI never opened an independent FBI criminal investigation.

The motion adopts expressive language to suggest the investigative team vacillated between whether there was a criminal investigation or not — in the process, falsely suggesting an interview would only be appropriate if there were a criminal investigation.

Deputy Attorney General Yates and another senior DOJ official became “frustrated” when Director Comey’s justifications for withholding the information from the Trump administration repeatedly “morphed,” vacillating from the potential compromise of a “counterintelligence” investigation to the protection of a purported “criminal” investigation. Ex. 3 at 5; compare Ex. 5 at 5 (“[W]e had an open counterintelligence investigation on Mr. Flynn”), with Ex. 4 at 4 (“Comey had said something to the effect of there being an ‘ongoing criminal investigation’”).

It then goes on to suggest that because records searches had yielded nothing in the 18 USC 951 investigation, a call showing Flynn intervened to undermine official US policy with no hint that he did so on Trump’s orders would not by itself be relevant to a Foreign Agent investigation.

In the case of Mr. Flynn, the evidence shows his statements were not “material” to any viable counterintelligence investigation—or any investigation for that matter—initiated by the FBI. Indeed, the FBI itself had recognized that it lacked sufficient basis to sustain its initial counterintelligence investigation by seeking to close that very investigation without even an interview of Mr. Flynn. See Ex. 1 at 4. Having repeatedly found “no derogatory information” on Mr. Flynn, id. at 2, the FBI’s draft “Closing Communication” made clear that the FBI had found no basis to “predicate further investigative efforts” into whether Mr. Flynn was being directed and controlled by a foreign power (Russia) in a manner that threatened U.S. national security or violated FARA or its related statutes, id. at 3.

With its counterintelligence investigation no longer justifiably predicated, the communications between Mr. Flynn and Mr. Kislyak—the FBI’s sole basis for resurrecting the investigation on January 4, 2017—did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation. The calls were entirely appropriate on their face.

When the motion gets around to arguing — relying on the transcripts but not providing them — that Flynn’s call was totally cool, it assessed that question in terms of FARA (undisclosed lobbying) not 18 USC 951.

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

The motion then imagines that counterintelligence investigators would only interview someone about a transcribed call to learn his recollection of what had been said, again suggesting the Logan Act would be the only reason to interview Flynn.

With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime.

These moves in the motion to dismiss were always obviously problematic. The exhibits submitted with the motion, including Priestap’s own notes, make it crystal clear that the purpose of the interview was not primarily to investigate the Logan Act, but to determine whether Flynn was hiding a clandestine relationship with Russia, a question primarily implicating 18 USC 951, and in no way limited to or even primarily about FARA, as one claim in this motion suggests.

As such, the claims made about the counterintelligence investigation affirmatively misrepresent even the exhibits submitted in support of the filing. Plus, as noted, the motion makes claims about the transcripts, doesn’t provide them, but the exhibits provide abundant evidence to suggest those claims are wrong (the op-ed Gleeson wrote last week laying out the addition steps Sullivan might take in response to the motion to dismiss specifically suggests Sullivan order the release of the transcripts). Nor does the motion account for the fact that to this day the public evidence claims (improbably) that Flynn was acting on his own when he made that call, which by itself would support a counterintelligence investigation.

In other words, the motion to dismiss makes obvious errors of fact and claims backed by no evidence (and refuted by the evidence present) pertaining to what FBI’s counterintelligence interests would be when the incoming National Security Advisor, seemingly freelancing, called up the country that just attacked us and undermined the official US policy.

One possible explanation for those errors and omissions is that the one career prosecutor Billy Barr put in place to conduct this review is perfectly suited to chasing down felons brandishing guns, but totally inappropriate to assess a counterintelligence investigation.