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NYT Keeps Downplaying Trump’s Past Retribution Tour

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Charlie Savage, Maggie Haberman, and Jonathan Swan keep teaming up to write the same story over and over: A second Trump term is going to be bad … really bad.

Just some of these stories, in reverse order from Tuesday’s latest installment, are:

There are several aspects to these stories: a bid to eliminate civil service protections, a personalization of power, and the elevation of people who proved willing to abuse power in his first term: Russel Vought (who helped obstruct the Ukraine investigation), Stephen Miller, and Johnny McEntee (who even before January 6 was making a willingness to invoke the Insurrection Act a litmus test for hiring at DOD), and Jeffrey Clark.

The series, thus far, skirts the language of authoritarianism and fascism.

At the core of the stories is that Trump is going to use a second term for retribution, to which the June 15 article is dedicated.

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s re-elected to “go after” President Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Mr. Trump said at his golf club in Bedminster, N.J., on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”

These stories admit that Trump did some of this in his first term. But they describe a process of retribution by the guy who got elected — with abundant assistance from Maggie Haberman — on a platform of “Lock her up!,” who breached the norm of judicial independence 24 days into office when he asked Jim Comey to “let this” Mike Flynn “thing go,” as something that took a while to “ramp up.”

In his first term, Mr. Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control. He is now unabashedly saying he will throw that effort into overdrive if he returns to power.

Mr. Trump’s promise fits into a larger movement on the right to gut the F.B.I., overhaul a Justice Department conservatives claim has been “weaponized” against them and abandon the norm — which many Republicans view as a facade — that the department should operate independently from the president.

Yet even though Savage did some important reporting on some of this (reporting that was counterbalanced by Maggie’s central role in helping Trump obstruct criminal investigations), these pieces always vastly understate how much politicization Trump pulled off in his first term, and never describe how that politicization continues at the hands of people like Jim Jordan.

In the spring of 2018, Mr. Trump told his White House counsel, Donald F. McGahn II, that he wanted to order the Justice Department to investigate his 2016 rival, Hillary Clinton, and James B. Comey Jr., the former head of the F.B.I. Mr. McGahn rebuffed him, saying the president had no authority to order an investigation, according to two people familiar with the conversation.

Later in 2018, Mr. Trump publicly demanded that the Justice Department open an investigation into officials involved in the Russia investigation. The following year, Attorney General William P. Barr indeed assigned a Trump-appointed U.S. attorney, John Durham, to investigate the investigators — styling it as an administrative review because there was no factual predicate to open a formal criminal investigation.

Mr. Trump also said in 2018 and 2019 that John F. Kerry, the Obama-era secretary of state, should be prosecuted for illegally interfering with American diplomacy by seeking to preserve a nuclear accord with Iran. Geoffrey S. Berman, a former U.S. attorney in Manhattan whom Mr. Trump fired in 2020, later wrote in his memoir that the Trump Justice Department pressured him to find a way to charge Mr. Kerry, but he closed the investigation after about a year without bringing any charges.

And as the 2020 election neared, Mr. Trump pressured Mr. Barr and Mr. Durham to file charges against high-level former officials even though the prosecutor had not found a factual basis to justify any. In his own memoir, Mr. Barr wrote that the Durham investigation’s “failure to deliver scalps in time for the election” eroded their relationship even before Mr. Barr refused Mr. Trump’s baseless demand that he say the 2020 election had been corrupt.

Where Mr. Trump’s first-term efforts were scattered and haphazard, key allies — including Jeffrey B. Clark, a former Justice Department official who helped Mr. Trump try to overturn the 2020 election — have been developing a blueprint to make the department in any second Trump term more systematically subject to direct White House control.

This effort was in no way haphazard!!! Most FBI personnel involved in the Russian investigation, from Jim Comey down to line analysts, had their careers systematically ruined, with Peter Strzok (who, the actual record of the Russian investigation shows, repeatedly took steps to protect Trump and Mike Flynn, even if he disliked Trump) offered up as an example of what will happen to people who don’t meekly just accept their punishment or, better yet, retreat to the private sector. The exceptions were the cyber guys who completely bolloxed the Alfa Bank investigation and people like Bill Barnett, who misrepresented the steps he himself took to provide “proof” of corruption on the Mueller investigation. That precedent has been sustained as right wingers take out other FBI agents deemed insufficiently loyal, like Tim Thibault, who personally opened an investigation into the Clinton Foundation in 2016 but who was targeted last year because in 2020 he didn’t mainline disinformation about Hunter Biden.

Yes, Bill Barr ordered Geoffrey Berman to investigate John Kerry. But he also set up a complex, systematic structure to halt  any investigation into Rudy Giuliani so the President’s lawyer could get dirt from Russian spies, feed it to Scott Brady, who would then push that information into the investigations of Hunter Biden and others. When Berman and Jessie Liu refused to break (after a good deal of bending to Barr’s will), he fired them both.

Barr didn’t just pressure John Durham to prosecute high-level people: He skipped, hand-in-hand, with Durham as they used Russian intelligence to fabricate an attack on Hillary Clinton, the organizing logic of an investigation that swept up private sector people and who had the temerity to research Donald Trump or — worse!! — to help Hillary recover from a hack-and-leak. The effort even took out academic researchers who were simply trying to keep the US safe from Russian hacking. Trump did get DOJ to investigate Hillary, with investigations lasting the entirety of his presidency, and that investigation included precisely the kind of fabricated evidence and coached testimony that NYT imagines is a hypothetical left for Trump’s second term.

To the extent these stories talk about Trump’s pardons, they do so prospectively. There’s no discussion of how the pardons of Mike Flynn and Roger Stone rival any of the most corrupt in US history, but were necessary to prevent DOJ from developing proof that Trump conspired with Russia.

These articles don’t describe how Congress has served as a wing of this politicization, from the leaks to Mike Flynn in 2018 about how to undermine his own investigation to sham hearings — like the one with George Papadopoulos unencumbered by the documents that would have provide evidence of “collusion,” in which he spewed out conspiracy theories that Bill Barr and John Durham quickly got on a plane to chase. These articles don’t describe how the current unrelenting attempt to manufacture an impeachment out of the detritus of Hunter Biden’s life could not have happened if Bill Barr hadn’t made very systematic attempts to enable Trump’s retribution tour in 2020.

And these articles don’t describe the violent threats that have become routine for anyone deemed insufficiently loyal to Donald Trump. The threats Trump deployed against Lisa Page and Marie Yovanovitch — “she’s going to go through some things” — exist on an unrelenting continuum as the threats against Ruby Freeman and Lesley Wolf and Fani Willis and Don Bacon’s wife.

Yes, it’s important to warn about what Trump plans to do with a second term. But calling Trump’s past retribution “haphazard” is a journalistic cop-out, a way to avoid admitting that we don’t yet fully understand how systematic Trump’s past retribution was or — worse — don’t want to come to grips with our own central role in it.

For a warning to be effective, we have to show the human costs of all the past retribution — the thousands of Jan6ers who had their lives ruined, the significant degradation in US national security, the fear, especially the fear among Republicans — costs that no one, no matter how loyal, will ultimately escape.

“The Buck Stops at the Top:” In January, Bill Barr’s DOJ Decided the Correct Decision Was to Send Mike Flynn to Prison

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I’d like to make one more point about Billy Barr’s rant last night. Over and over again, Barr suggested that line prosecutors have been making hyper-aggressive decisions that the Department of Justice cannot answer for and that his involvement simply amounts to ensuring that the decisions DOJ makes are ones he’s willing to take responsibility for.

Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management.  Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct.  There aren’t any.  Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.  Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates.  But that does not mean blindly deferring to whatever those subordinates want to do.

This is what Presidents, the Congress, and the public expect.  When something goes wrong at the Department of Justice, the buck stops at the top.  28 U.S.C. § 509 could not be plainer:  “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”

And because I am ultimately accountable for every decision the Department makes, I have an obligation to ensure we make the correct ones.  The Attorney General, the Assistant Attorneys General, and the U.S. Attorneys are not figureheads selected for their good looks and profound eloquence.

They are supervisors.  Their job is to supervise.   Anything less is an abdication.

To the extent Barr is talking about the Mueller investigation, every single prosecutorial decision was reviewed by Acting Attorney General Rod Rosenstein. For those decisions, then, Barr’s not actually talking about decisions made by line prosecutors. He’s talking about decisions overseen by someone vested, like him, with all the authority of DOJ.

For precisely the reason Barr lays out — that DOJ must be able to answer for things DOJ does — it’s highly unusual for DOJ to flip-flop on prosecutorial decisions that past Attorneys General have approved.

But with one action in the Mike Flynn prosecution — possibly one he thought of when he invoked probation sentences in one of his last paragraphs — Barr’s interventions into the cases of Donald Trump’s flunkies is far worse than that.

In short, it is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

In moving to dismiss Flynn’s prosecution, Barr was overriding a decision he himself had approved of. In January, DOJ called for prison time for Flynn, citing the materiality of his lies and his abuse of trust.

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.

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

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

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

United States v. Mandujano, 425 U.S. 564, 576 (1975); see also Nix v. Whiteside, 457 U.S. 157, 185 (1986) (“[t]his Court long ago noted: ‘All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth.’”) (quoting In re Michael, 326 U.S. 224, 227 (1945)). All persons carry that solemn obligation to tell the truth, especially to the FBI.

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

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. 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.

This was no decision made by rogue line prosecutors, Brandon Van Grack and Jocelyn Ballantine. In December, Jessie Liu signed a request for an extension so that the “multiple individuals and entities” that had to approve the new sentencing recommendation could do so.

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.

And then again in January, Jessie Liu got an extension so the “multiple individuals and entities” who had to review the sentencing memo could do so.

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.

Bill Barr says he is responsible for making the correct decision, and his DOJ reviewed the decision to imprison Mike Flynn at length. Taking him at his word, that means Bill Barr believed, in January, knowing all the details that were “new” to Timothy Shea when he wrote his motion to dismiss, but not new to Michael Horowitz and John Durham, who had already reviewed them, that the correct decision was to send Mike Flynn to prison.

It’s bad enough that Barr has repeatedly refused to stand by decisions made by others imbued with the authority of the entire DOJ under 28 U.S.C. § 509.

But Bill Barr won’t even stand by his past decisions.

DC Bar No. 472845 Argued Flynn’s Prosecution Was Legitimate before DC Bar No. 472845 Argued It Wasn’t

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As CNN reported last week, Acting DC US Attorney Timothy Shea filed last week’s motion to dismiss the Flynn prosecution under the bar number of his predecessor, Jesse Liu. That means last week’s filing was filed under the same bar number …

… as a filing Bill Barr’s DOJ submitted under the same bar number on November 1, 2019.

That filing, submitted under the supervision of a Senate-confirmed US Attorney, responded to a half-assed motion to dismiss that Flynn’s lawyers had slipped into a Brady motion. As such, it refuted Flynn’s argument that his prosecution should be dismissed for the same reasons that DOJ adopted last week.

The motion, submitted by Bill Barr’s DOJ, noted that Mike Flynn knew all the things he had invoked last fall in arguing to dismiss his case — including claims he was ambushed in his January 24, 2017 interview — when he pled guilty for a second time on December 18, 2018 and admitted he could never again complain about the circumstances of his interview.

Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant.

[snip]

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

That motion, submitted by Bill Barr’s DOJ, argued the circumstances of the January 24, 2017 interview were proper. The filing specifically stated that the FBI was engaged in a legitimate investigation. It stated that “agents were not in search of a crime” and specifically denied trying to trap Flynn in a lie.

Nor did law enforcement officials engage in “outrageous” conduct during the criminal investigation and prosecution of the defendant. On January 24, 2017, when the defendant lied in his interview, the FBI was engaged in a legitimate and significant investigation into whether individuals associated with the campaign of then-candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election. The defendant was not “ambushed” at the interview, and the interviewing agents certainly did not engage in “outrageous” conduct that undermines the fact that he lied. Reply at 1, 7. The documents produced by the government in discovery show that the FBI asked the defendant for permission to conduct the interview, informed the defendant that the questions would concern his “contacts with the Russian Ambassador to the United States,” interviewed the defendant in his own office, and afforded him multiple opportunities to correct his false statements by revisiting key questions. See, e.g., Memorandum of Andrew McCabe dated January 24, 2017 (Doc. 56-1) (“McCabe Memo”); Strzok 302. Tellingly, the defendant supports his allegation by selectively quoting from documents. For example, the Reply states that, according to the Strzok 302, the agents decided they would not confront the defendant if he did not confirm his statements. See Reply at 8. But the Reply omits the sentence in the Strzok 302 preceding that reference, where DAD Strzok explained that “if Flynn said he did not remember something they knew he said, they would use the exact words Flynn used . . . to try to refresh his recollection.” Reply, Ex. 6 (emphasis added).

The interviewing agents’ handwritten notes and report provide further confirmation that the defendant was not “trap[ped].” Reply at 1. The interviewing agents repeatedly sought to prompt the defendant to provide a truthful response. When the defendant first failed to mention his calls with the Russian Ambassador about the UN Vote and U.S. Sanctions, the agents raised the topics themselves. When the defendant then denied making a request to the Russian Ambassador about the UN Vote, the agents nevertheless asked him if he made any comment to the Russian Ambassador about voting in a particular way. And when the defendant specifically denied talking at all about U.S. Sanctions, the agents nevertheless asked him whether the Russian Ambassador told him that the Russian government had taken the defendant’s request into account. Such conduct demonstrates that the agents were not in search of a crime, but the truth about what had happened and why—which the defendant failed to provide. Had they wanted to “trap[]” the defendant into a false statement charge, they would not have prompted him repeatedly to correct his statements. [My emphasis]

D.C. Bar No. 472845 has already weighed in on whether Mike Flynn’s prosecution was legitimate. D.C. Bar No. 472845 made an aggressive defense of this prosecution little more than six months ago.

Given that Bill Barr’s DOJ already argued this prosecution was proper, given that Bill Barr’s DOJ has provided no evidence any of this is new — on the contrary, Bill Barr’s DOJ has already argued Flynn knew all about this before he pled guilty a second time — Judge Emmet Sullivan might be forgiven for finding the initial argument D.C. Bar No. 472845 made in his court more persuasive than the one D.C. Bar No. 472845 made last week.

The Stakes and Misinformation about the Andrew McCabe Declination

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Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.

The Size of Bill Barr’s Cover-Up Hints at the Magnitude of What He’s Covering Up

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After the Tuesday Afternoon Massacre — where four prosecutors withdrew from the Roger Stone case rather than be party to Bill Barr interfering in the prosecution of Trump’s rat-fucker — we learned on Friday that Bill Barr had deployed a third US Attorney — Saint Louis’ Jeffrey Jensen — to the DC US Attorney’s office as part of an elaborate cover-up for Trump’s crimes. I’m going to attempt to lay out the full scope of Barr’s attempted cover-up. This post will serve as an overview and I will update it with links to the known or suspected evidence and crimes that Barr is covering up. I’m not including efforts to launch or sustain investigations into those Trump perceives to be his enemies.

The cover-up has the following aspects:

Interim US Attorneys oversee investigations implicating Trump’s actions

Geoffrey Berman, Southern District of New York: For the most part, Berman seems to have operated independently after his appointment as US Attorney for SDNY, but there are recent concerns that investigations implicating Trump have been stymied:

  • Hush payments: After getting Michael Cohen to plead guilty to covering up Trump’s past sex partners during the election and obtaining testimony from National Enquirer, the investigation closed with no further charges on or before July 17, 2019.
  • Ukrainian grifters: There are conflicting stories about the scope of the investigation into Ukrainian grifters Lev Parnas and Igor Fruman, particularly with regards to how seriously SDNY is considering charges against Rudy Giuliani. WaPo reported steps taken implicating Rudy’s activities on February 14, 2020. But Parnas has insinuated that his sudden arrest on October 9 was an attempt to keep him silent; Barr visited SDNY that day and subsequently visited Rupert Murdoch at his home. SDNY showed unusual concern for the privacy of third parties as Parnas tried to share more information with the House Intelligence Committee. And Bill Barr has not recused in spite of a clear conflict and a request from Parnas.
  • Halkbank: Barr tried to pre-empt an indictment of Turkey’s Halkbank with a settlement.

Timothy Shea, District of Columbia: While Berman worked for several years without any show of corruption, that’s not true of Timothy Shea, a trusted Barr aide. The very first day he started work — having been installed by Barr with just a day’s notice — he started questioning the guidelines sentence of Roger Stone, who has promised to remain silent about details of Trump’s involvement in his efforts to optimize the release of emails stolen by Russian. Then, Shea worked with Bill Barr to reverse the guidelines sentence recommended by career prosecutors. In addition, Shea’s appointment coincided with the start of a “review” of other prosecutions and investigations of Trump associates in DC including, but not limited to, Mike Flynn and Erik Prince.

Confirmed US Attorneys “review” investigations into Trump and his associates

John Durham, Connecticut: In May 2019, Barr ordered John Durham to conduct an investigation into the origins of the Crossfire Hurricane investigation of Trump associates’ ties to Russia. He predicated the investigation, explicitly, on the absence of evidence. In clear contrast to the Mueller investigation, DOJ has produced no documentation regarding the scope of the investigation (including whether Durham could pursue crimes by Trump’s associates or even Barr himself if he found evidence of a crime), and Barr has remained personally involved, completely negating the entire point of appointing a US Attorney to conduct the investigation. Republicans have described the point of this investigation as an effort to discredit the Mueller investigation. It has included the following:

  • Bill Barr’s worldwide tour chasing the hoaxes rolled out through George Papadopoulos via the right wing echo chamber
  • Some disinformation likely fed via Rudy
  • The legitimate criminal investigation of FBI Attorney Kevin Clinesmith, the actual venue for which should be Washington DC
  • CIA’s 2016 determination — confirmed by more recent intelligence collection and reviewed approvingly by the Senate Intelligence Committee — that Russia not only wanted to hurt Hillary, but help Trump in the 2016 election
  • Communications between John Brennan and Jim Comey and Andrew McCabe

Jeffrey Jensen, Eastern District of Missouri: The “review” Jeffrey Jensen is conducting of DC US Attorney cases seems to couple with Durham’s investigation. It reportedly is second-guessing decisions made by prosecutors on the Mike Flynn and Erik Prince investigation, as well as other non-public investigations. The review is almost certainly assessing rumors started by known propagandists that have already been investigated three times, including by FBI’s Inspection Division, rumors already reviewed and dismissed in a meticulous 92-page opinion from Emmet Sullivan. This “review” seems to have been part of the installment of Shea at DC and may amount to an attempt to thwart investigations that Jessie Liu let proceed without political interference.

DOJ diverts disinformation from Rudy Giuliani to another confirmed US Attorneys

In recent weeks, Barr has appointed Scott Brady, US Attorney for Western District of Pennsylvania, to vet incoming information from Rudy’s foreign influence peddling in Ukraine. It’s unclear whether Barr did this to try to make something out of that disinformation, or to prevent evidence that might support foreign influence peddling charges against Rudy from getting to prosecutors in SDNY.

Richard Donoghue, Eastern District of New York: Donoghue is apparently “handling certain Ukraine-related matters.” In connection to that, Jeffrey Rosen put Donoghue in charge of coordinating all investigations that pertain to Ukraine,

to avoid duplication of efforts across Offices and components, to obviate the need for deconfliction at a later stage of potentially overlapping investigations, and to efficiently marshal the resources of the Department to address the appropriate handling of potentially relevant new information.

That in and of itself is not problematic. But by putting Jensen in charge of intake, presumably before it gets to Donoghue, Rosen has ensured that information that — because it is disinformation — would be incriminating to Rudy, not Joe Biden (or anyone else).

DOJ prevents full investigation of Ukraine complaint

Barr and his DOJ engaged in multiple acts of obstruction of the Ukraine complaint. First, Barr did not recuse from a complaint mentioning him by name. Then (knowing that Barr was personally implicated), DOJ did not conduct a full assessment of the whistleblower complaint, which would have identified a tie to the SDNY investigation of Lev Parnas and Igor Fruman. Then OLC invented an excuse not to share whistleblower complaint with Congress, which resulted in a significant delay and almost led Ukraine to make concessions to obtain aid. Then, DOJ did not share whistleblower complaint with FEC as required by Memorandum of Notification. Finally, DOJ made a comment claiming Trump was exonerated, precisely the abuse — speaking about ongoing investigations — that Jim Comey got fired for.

The Timeline Suggests Bill Barr Removed Jesse Liu to Intervene for Trump’s Rat-Fucker

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Far be it for me to doubt Bill Barr’s ability to manufacture a cover-up. He’s damn good at it, that’s why he was hired, and he’s got a lot of power to use to execute one.

But it’ll be harder this time around than it was for Poppy Bush, in part because Barr’s principal has the propensity to go off half-cocked, the frothy right doesn’t think rationally, and Barr himself may believe what he sees on Fox News more than what he sees in court dockets, to the extent he even reviews court dockets.

That’s particularly true given the timeline leading up to the Tuesday Night Massacre, because it appears to show that Bill Barr removed Jessie Liu — and then Trump withdrew her nomination excusing that removal — mostly (at least as far as what is visible thus far) to intervene for Trump’s rat-fucker, Roger Stone.

At least as the timing of the DOJ filings reflect, Barr intervened with the strategy he claimed to Pierre Thomas to apply with Roger Stone with Mike Flynn, providing reasons for Judge Emmet Sullivan to sentence lightly, but leaving it up him. Importantly, Jessie Liu proved willing to do that on January 29; she signed the softened Flynn sentencing memo (though it’s possible Trump submitted her nomination on January 6 in response to the discussions around the initial, harsher memo).

The next day, per dates included in the Roger Stone sentencing memo, DOJ submitted an objection to the January 16 Presentence Investigation Report.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Possibly, given footnote 2, they added language to substantiate the extent to which Stone went to sustain his cover-up.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing.

That’s when Barr appointed Timothy Shea as interim US Attorney, effective just two business days later, the one way to take Jessie Liu out of the command structure immediately.

According to Barr’s interview, Shea started asking questions about Stone’s sentencing a week before the memo got submitted. That means Shea spent his first day focused on the Stone sentencing. That makes it hard to believe he was installed for any other reason but to help Stone out.

The first Trump-related motions — basically to remove Flynn’s attorney-client privilege so Covington’s lawyers can expound on how many lies Flynn told them about Russia and his work for Turkey — showed no discernible Barr influence (though Flynn’s reversal on continuing these discussions may have).

Barr provided several somewhat contradictory explanations for what happened on February 10 to Thomas. He claims that Shea “came by” DOJ and alerted Barr that line prosecutors still wanted to recommend the 7-9 year sentence calculated by the Probation Office. Then Barr suggested that he got involved here because line prosecutors who have decades of experience are too junior to make “life or death” decisions.

What other industry allows life or death decisions to be made by the most junior level of the business.

Not long later, however, Barr denied intervening in a case.

Most cases don’t come up to the Attorney General because people are doing a good job.

Some people saying AG intervening in a case. That’s preposterous! We have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the Attorney General’s decision to decide it.

But here’s the key: Barr claims he only got involved in Stone’s sentencing memo because “difficult issues” got escalated.

Except they only got escalated because he had just installed his hand-picked flunky to oversee this. This wouldn’t have been escalated if Liu were still in place.

All the evidence suggests that Bill Barr replaced Jessie Liu to give himself an excuse to intervene personally in Stone’s sentencing.

And what will it get him? I suspect Judge Amy Berman Jackson would never have sentenced Stone to 7 to 9 years —  the harsher sentence — in any case (especially given that she only gave Paul Manafort 7.5 years). She probably would have given Stone 4-5 years and might still, a slight enhancement for the threat against Randy Credico, but not much. But this drama about sentencing is likely not the big question, given that Stone is likely to have his sentence commuted, one way or another, on November 4, the day after election day. So the real question is how much of the next nine months he serves in prison, which ABJ has some control over, especially given Stone’s propensity to make threats when he’s not in prison or gagged. If ABJ sentences Stone to 4-5 years — close to what Barr has now signed off on in very public and intrusive fashion — but sends him to prison right away, it’s less likely Trump will do something immediate, like pardon him. Whereas, had Barr not intervened, it would have had the same effect but without Barr’s tacit approval for a 3-4 year sentence.

I can’t decide whether the plan here is to make judges look unreasonable — which could happen when Sullivan sentences Flynn to prison, except for the really atrocious details about how Flynn was secretly working for a frenemy government while purportedly advising Trump on national security issues. Or whether it’s to minimize sentence time — which Barr hasn’t done by endorsing a sentence just a year or so less than what ABJ might be inclined to give anyway.

Meanwhile, after inventing a way to remove Jessie Liu immediately, Lou Dobbs and a bunch of other frothers convinced the President to withdraw her nomination, possibly encouraged by the threat of questions about all this in her confirmation hearing, which was scheduled for yesterday. She resigned yesterday from whatever desk Trump parked her at to make way for Shea. She’s a pretty loyal Trumpster, so it’s unclear whether she’ll go quietly. But if she chooses, as a private citizen she’s now entitled to respond to subpoenas from Congress, and between her and Jonathan Kravis (who also resigned entirely from DOJ), she can explain what is really going on.

Meanwhile, Shea is now on the clock: he has until June 2 to complete shutting down any investigations into Trump. Unless the Senate confirms a successor that has not yet been confirmed, then Chief Judge Beryl Howell will be able to pick his replacement. And she was none too happy about this week’s drama.

December 10, 2019: Trump announces intent to nominate Jessie Liu to Treasury

January 4: DOJ asks for one more day to submit Flynn supplemental sentencing memorandum; signed by Liu

January 6: Trump nominates Liu to Treasury

January 7: DOJ submits harsh sentencing memo that nevertheless asks for guidelines sentence; signed by Liu

January 16: Probation Office completes Stone PSI recommending 7-9 years

January 22: DOJ notices court that they’ve provided the last of the Flynn 302s; signed by Liu

January 29: DOJ submits reply sentencing memo, with probation recommendation; signed by Liu

January 30: DOJ submits objection to Stone PSI; Barr appoints Timothy Shea DC US Attorney, effective February 3

February 3: Shea starts; per ABC interview, starts asking questions about the sentencing

February 5: Senate acquits Trump

February 9: DOJ files motion to continue briefing schedule and motion to confirm waiver of attorney-client privilege; signed by Jocelyn Ballentine; Brandon Van Grack not on motions, but probably in preparation for hearing

February 10: Shea “comes by” DOJ and tells Barr the team wanted to recommend 7-9 recommendation; Barr “under the impression” that “what was going to happen was what I had suggested;” DOJ files sentencing memo recommending 7-9 years; Barr claims he decided at night to amend recommendation

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

4:40: Supplemental sentencing memo created, signed by John Crabb Jr

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

February 12: Trump withdraws Liu’s nomination; DOJ submits response to motion to dismiss; signed by Brandon Van Grack; Jessie Liu resigns from Treasury desk she was parked at to make way for Shea

February 13: Bill Barr does staged interview where he dodges any real explanation for his interference

June 2: Timothy Shea’s interim appointment expires

The Slow Firing of Robert Mueller[‘s Replacement]

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On December 5, I suggested that Speaker Pelosi delay the full House vote on impeachment until early February. I intimated there were public reasons — the possibility of a ruling on the Don McGahn subpoena and superseding charges for Lev Parnas — I thought so and private ones. One of the ones I did not share was the Stone sentencing, which at that point was scheduled for February 6. Had Pelosi listened to me (!!!) and had events proceeded as scheduled, Stone would have been sentenced before the final vote on Trump’s impeachment.

But things didn’t work out that way. Not only didn’t Pelosi heed my suggestion (unsurprisingly), but two things happened in the interim.

First, Stone invented a bullshit reason for delay on December 19, the day after the full House voted on impeachment. The prosecutors who all resigned from the case yesterday objected to the delay, to no avail, which is how sentencing got scheduled for February 20 rather than the day after the Senate voted to acquit.

Then, on January 6, Trump nominated Jessie Liu, then the US Attorney for DC, to be Undersecretary for Terrorism and Financial Crimes, basically the person who oversees the process of tracking criminal flows of finance. She won’t get that position — her nomination was pulled yesterday in advance of a Thursday confirmation hearing. But her nomination gave Barr the excuse to install a trusted aide, Timothy Shea, at US Attorney for DC last Thursday, the day after the impeachment vote and in advance of the now-delayed Stone sentencing.

Liu, who is very conservative and a true Trump supporter, had been nominated for a more obvious promotion before. On March 5, Trump nominated her to be Associate Attorney General, the number 3 ranking person at DOJ. But then she pulled her nomination on March 28 because Senators objected to her views on choice.

But let’s go back, to late August 2018. Michael Cohen and Sam Patten had just pled guilty, and Cohen was trying to find a way to sort of cooperate. Rudy Giuliani was talking about how Robert Mueller would need to shut down his investigation starting on September 1, because of the election. I wrote a post noting that, while Randy Credico’s imminent grand jury appearance suggested Mueller might be close to finishing an indictment of Stone, they still had to wait for Andrew Miller’s testimony.

Even as a I wrote it, Jay Sekulow was reaching out to Jerome Corsi to include him in the Joint Defense Agreement.

During the entire election season, both Paul Manafort and Jerome Corsi were stalling, lying to prosecutors while reporting back to Trump what they were doing.

Then, the day after the election, Trump fired Jeff Sessions and installed Matt Whitaker. Whitaker, not Rosenstein, became the nominal supervisor of the Mueller investigation. Not long after, both Manafort and Corsi made their game clear. They hadn’t been cooperating, they had been stalling to get past the time when Trump could start the process of ending the Mueller investigation.

But Whitaker only reactively kept Mueller in check. After Michael Cohen’s December sentencing made it clear that Trump was an unindicted co-conspirator in a plot to cheat to win, Whitaker started policing any statement that implicated Trump. By the time Roger Stone was indicted on January 24, 2019 — after Trump’s plan to replace Whitaker with the expert in cover ups, Bill Barr — Mueller no longer noted when Trump was personally involved, as he was in Stone’s efforts to optimize the WikiLeaks releases.

But then, when Barr came in, everything started to shut down. Mueller moved ongoing prosecutions to other offices, largely to DC, under Jessie Liu’s supervision. As Barr came to understand where the investigation might head, he tried to promote Liu out of that position, only to have GOP ideology prevent it.

Barr successfully dampened the impeach of the Mueller Report, pretending that it didn’t provide clear basis for impeaching the President. It was immediately clear, when he did that, that Barr was spinning the Stone charges to minimize the damage on Trump. But Barr did not remove Mueller right away, and the Special Counsel remained up until literally the moment when he secured Andrew Miller’s testimony on May 29.

The next day, I noted the import of raising the stakes for Trump on any Roger Stone pardon, because Stone implicated him personally. That was more important, I argued, than impeaching Trump for past actions to try to fire Mueller, which Democrats were focused on with their attempt to obtain Don McGahn’s testimony.

Still, those ongoing investigations continued under Jessie Liu, and Stone inched along towards trial, even as Trump leveraged taxpayer dollars to try to establish an excuse to pardon Manafort (and, possibly, to pay off the debts Manafort incurred during the 2016 election). As Stone’s trial laid out evidence that the President was personally involved in optimizing the release of emails Russia had stolen from Trump’s opponent, attention was instead focused on impeachment, his more recent effort to cheat.

In Stone’s trial, he invented a new lie: both Randy Credico and Jerome Corsi had falsely led him to believe they had a tie to WikiLeaks. That didn’t help Stone avoid conviction: Stone was found guilty on all counts. But it gave Stone yet another cover story to avoid revealing what his ties to WikiLeaks actually were and what he did — probably with Trump’s assent — to get it. For some reason, prosecutors decided not to reveal what they were otherwise prepared to: what Stone had really done.

Immediately after his conviction, Stone spent the weekend lobbying for a pardon. His wife appeared on Tucker Carlson’s show and someone got inside White House gates to make the case.

But, as impeachment proceeded, nothing happened, as the Probation Office started collecting information to argue that Stone should go to prison for a long while. The day Democrats finished their case against Donald Trump, though, Bill Barr made his move, replacing Liu before she was confirmed, removing a very conservative Senate confirmed US Attorney to install his flunkie, Timothy Shea. But even that wasn’t enough. Prosecutors successfully convinced Shea that they should stick to the probation office guidelines recommending a stiff sentence. When Timothy Shea didn’t do what Barr expected him to, Barr intervened and very publicly ordered up the cover up he had promised.

Effectively, Bill Barr is micro-managing the DC US Attorney’s office now, overseeing the sentencing of the man who could explain just how involved Trump was in the effort to maximize the advantage Trump got from Russia’s interference in 2016, as well as all the other prosecutions that we don’t know about.

Trump has, finally, succeeded in firing the person who oversaw the investigations into his role in the Russian operation in 2016. Just as Stone was about to have reason to explain what that role was.

Timeline

August 21, 2018: Michael Cohen pleads guilty

August 31, 2018: Sam Patten pleads guilty

September 5, 2018: Jay Sekulow reaches out to Corsi lawyer to enter into Joint Defense Agreement

September 6, 2018: In first Mueller interview, Corsi lies

September 17, 2018: In second interview, Corsi invents story about how he learned of Podesta emails

September 21, 2018: In third interview, Corsi confesses to establishing a cover story about Podesta’s emails with Roger Stone starting on August 30, 2016; NYT publishes irresponsible story that almost leads to Rod Rosenstein’s firing

October 25, 2018: Rick Gates interviewed about the campaign knowledge of Podesta emails

October 26, 2018: Steve Bannon admits he spoke with Stone about WikiLeaks

October 31, 2018: Prosecutors probably show Corsi evidence proving he lied about source of knowledge on Podesta emails

November 1 and 2, 2018: Corsi continues to spew bullshit in interviews

November 6, 2018: Election day

November 7, 2018: Jeff Sessions is fired; Matt Whitaker named Acting Attorney General

November 9, 2018: Corsi appears before grand jury but gives a false story about how he learned of Podesta emails; Mueller threatens to charge him with perjury

November 15, 2018: Trump tweets bullshit about Corsi’s testimony being coerced

November 23, 2018: Corsi tells the world he is in plea negotiations

November 26, 2018: Corsi rejects plea

December 7, 2018: Trump nominates Bill Barr Attorney General

January 18, 2019: Steve Bannon testifies to the grand jury (and for the first time enters into a proffer)

January 24, 2019: Roger Stone indicted for covering up what really happened with WikiLeaks

February 14, 2019: Bill Barr confirmed as Attorney General

March 5, 2019: Jessie Liu nominated to AAG; Bill Barr briefed on Mueller investigation

March 22, 2019: Mueller announces the end of his investigation

March 24, 2019: Bill Barr releases totally misleading version of Mueller results, downplaying Stone role

March 28, 2019: Liu pulls her nomination from AAG

April 19, 2019: Mueller Report released with Stone details redacted

May 29, 2019: As Mueller gives final press conference, Andrew Miller testifies before grand jury

November 12, 2019: Prosecutors apparently change Stone trial strategy, withhold details of Stone’s actual back channel

November 15, 2019: Roger Stone convicted on all counts

January 6, 2020: Jessie Liu nominated to Treasury

January 16, 2020: Probation Office issues Presentence Report calling for 7-9 years

January 30, 2020: Bill Barr replaces Liu with Timothy Barr, effective February 3; DOJ submits objection to Presentence Report

February 3, 2020: Timothy Shea becomes acting US Attorney

February 5, 2020 : Senate votes to acquit Trump

February 6, 2020: Initial sentencing date for Roger Stone

February 10, 2020: Stone sentencing memoranda submitted

February 11, 2020: DOJ overrules DC on Stone sentencing memorandum, all four prosecutors resign from case

February 20, 2020: Current sentencing date for Roger Stone

Bill Barr’s Chosen US Attorney Signs Off on Aggressive Response to Mike Flynn

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When Bill Barr suddenly replaced DC US Attorney Jessie Liu the day after the Senate acquitted Trump, I grew wary of why he replaced a solid Trump appointee with his own close aide, Timothy Shea.

I fully expect the move was designed to minimize the damage of ongoing investigations into Trump’s flunkies and may well be an effort to prosecute more of Trump’s perceived enemies, like Andrew McCabe.

But in one of the first signals of whether Shea will interfere in sensitive prosecutions, the ongoing sentencing of Mike Flynn, Shea signed off on an aggressive next step.

That’s one of the key takeaways from two filings submitted today, the first asking for an order finding that Flynn has waived all attorney-client privilege with respect to Covington & Burling’s representation of him (including with those who worked on Flynn’s behalf, which might include researchers and tech contractors) in regards to his motion to withdraw his guilty plea, and the second asking for a continuance — possibly a significant one — to work with Covington to obtain information and materials to respond to Mike Flynn’s claims that Covington provided incompetent advice to him.

Bill Barr’s close associate Shea signed off on this, but Brandon Van Grack did not, which likely means that the government is preparing for the possibility (invited by Judge Emmet Sullivan’s suggestion he wants to hold an evidentiary hearing with sworn witnesses) that Van Grack will testify about discussions with Flynn and his lawyers, too.

That is, we may be headed towards a hearing in which we see top Covington lawyers, their contractors (I suspect their tech contractors have an interesting story to tell about how Flynn Intelligence Group materials were made unavailable after the 2016 election, thereby making key documents unavailable for Covington to review before completing the FARA filing), the other lawyer they advised he consult after first making sure he did not have a conflict, and Van Grack testify about how much lying and obstruction Flynn engaged in, with just Flynn and his wife (having probably already waived spousal privilege by submitting a declaration in this matter) arguing to the contrary.

Another takeaway is that Covington wants this opportunity to tell what a shitty client Flynn was.

While Covington has indicated a willingness to comply with this request, it has understandably declined to do so in the absence of a Court order confirming the waiver of attorney-client privilege.

They just want the legal and ethical cover of an order from Judge Sullivan. The government is asking for over a week extension from the existing deadline — currently noon on this Wednesday, February 12 — before they propose to submit a status report at noon on Thursday, February 20. That suggests they imagine, having consulted with Covington, that there may be a good deal to talk about, with regards to what a shitty client Mike Flynn was.

A subtle point about this request: I believe that the government is asking for this, and justifying it, based off Flynn’s complaint not just that his Covington lawyers should have gotten the details about FARA correct, and having not done so had an unwaivable conflict in representing Flynn going forward, but also that they allegedly did not tell Flynn that the FBI agents who originally interviewed him believed that he had a “sure demeanor,” which would have led him not to plead guilty had he been told.

the defendant contends that (1) his attorneys did not disclose to him that the interviewing agents believed he had a “sure demeanor” and that he did not show signs of deception, and he would not have pleaded guilty if his attorneys had disclosed this to him

This is significant because in the Bijan Kian case, Judge Anthony Trenga ruled that Covington’s work on the FARA application was not covered by privilege.

Notwithstanding the near absolute immunity enjoyed by attorney opinion work product, where that work product relates centrally to the actions or conduct of a lawyer at issue in a case, such that consideration of the attorney’s opinion work product, including their recollections and impressions, are essential to a just and fair resolution, opinion work product protections otherwise applicable do not apply. See, e.g., In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981) (finding no opinion work product protection where attorney’s prior representation was a target of the grand jury investigation); Sec. Exch. Comm’n v. Nat’l Student Mktg. Corp., 1974 WL 415, *3–4 (D.D.C. June 25, 1974) (finding no opinion work product protection where at issue was what a law firm did and did not know). Here, while there is no contention that Covington or Verderame committed any crime, what they did and why is central to this case as their actions are claimed to have resulted in a crime attributable to Rafiekian. For these reasons, any opinion work product by Covington or Verderame that pertains to the FARA filing is not protected.

I believe that means that the already substantial evidence submitted in the context of that case, including notes and testimony clearly showing that Flynn lied to Covington lawyers as they were preparing the FARA filing, can be entered into this proceeding.

What the government is asking for, then, is that Covington’s attorney-client obligations to Flynn be waived on the case in chief here, his lies about Russia. Indeed, that’s what the bulk of the conflicting sworn Flynn statements laid out in the government filing pertain to.

On December 1, 2017, the defendant entered a plea of guilty to “willfully and knowingly” making material false statements to the FBI on January 24, 2017, regarding his contacts with the Russian Ambassador. See Information; SOF at ¶¶ 3-4.1 In addition, in the Statement of the Offense, the defendant admitted that he “made material false statements and omissions” in multiple documents that he filed on March 7, 2017, with the Department of Justice pursuant to FARA, which pertained to a project for the principal benefit of the Republic of Turkey. See SOF at ¶ 5.

On November 30, 2017, defendant Flynn signed the Statement of the Offense, acknowledging: “I have read every word of this Statement of the Offense, or have had it read to me . . . . I agree and stipulate to this Statement of the Offense, and declare under penalty of perjury that it is true and correct.” See SOF at 6. During his initial plea hearing, defendant Flynn was shown this signature, and he acknowledged under oath that it was his. See Plea Tr. at 13-14, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (“12/01/2017 Plea Tr.”). Thereafter, the government read the Statement of the Offense into the record. See id. at 14-18. The defendant was asked by the Court, “Is that factual summary true and correct?,” and the defendant replied, “It is.” Id. at 18. The Court then asked whether the defendant believed the government could prove those facts at trial, to which the defendant replied “yes.” Id. at 19. Defendant Flynn was also asked at this hearing whether he had sufficient time to consult with his attorneys, to which he replied “yes,” and whether he was satisfied with the services they had provided him, to which he also responded “yes.” Id. at 6.

Defendant Flynn was originally scheduled to be sentenced on December 18, 2018. Prior to that hearing, the government submitted a sentencing memorandum that described defendant Flynn’s knowing and willful material false statements to the FBI, and his material false statements and omissions in multiple FARA filings. See Gov’t Sent’g Memo at 2-5. In his own filing, the defendant reiterated that he “d[id] not take issue” with the government’s description of his conduct. See Def. Sent’g Mem at 7 (citing Gov’t Sent’g Memo at 2-5).

As I noted, Flynn’s sworn statements in this preceding are in unreconcilable conflict, both as regards to FARA and as regards to his claim to have lied to the FBI about his conversations with Sergei Kislyak and his more recent claim that he did not lie. But by getting Covington a waiver to talk about the latter, the government intends to get abundant evidence to prove that’s true of both sets unreconcilable conflicting sworn statements, the ones about his work for Turkey and the ones about lying to the FBI about Russia.

And they make it clear they may charge Flynn with perjury once they do that, because they want Sullivan to approve that use in his order.

The order also should make clear that if the defendant’s Supplemental Motion to Withdraw his Plea of Guilty is granted, the Court may consider additional questions of the limitation on the use of this information in any subsequent trial. This limitation on the use of information should not, however, preclude the government from prosecuting the defendant for perjury if any information that he provided to counsel were proof of perjury in this proceeding.

If Sullivan approves this (and he seems to be thinking along the same lines), it means either Flynn’s motion to withdraw will be refused after Covington provides the court with additional evidence of perjury, or it will be approved after Covington provides the government with additional evidence of perjury, which the government — including the newly appointed US Attorney for DC — would then use to prosecute Flynn for perjury.

Flynn’s lawyers — who, remember, decided to risk their client’s freedom on a claim that Covington lawyers were incompetent — seem uninterested in letting the government prepare for a hearing the judge in this case has made fairly clear he intends to hold.

The government conferred by e-mail with counsel for the defendant. In response to the government’s request to amend the briefing schedule in this case, defense counsel wrote: “Our position is that at the minimum, the Department of Justice should agree to withdrawal of the plea. Accordingly, we oppose any further extension of the briefing schedule.”

But even if Sullivan denies this motion, even if Sullivan doesn’t sign the order giving Covington the cover to explain how much Flynn lied to them, the government still has adequate time to prove their case by the existing deadline on Wednesday.

It was clear going back to the early January submission of the sentencing memorandum that Flynn’s case is being very carefully reviewed by the DOJ hierarchy. That’s unlikely to have changed with the changeover in US Attorney. Which suggests that whatever else Barr’s appointment of Timothy Shea means, it likely also means that DOJ institutionally supports this aggressive response to Flynn’s gamesmanship on his guilty plea.

Update: I’m increasingly baffled by all of this, but I think this may be Sidney Powell blinking. She agrees to the continuance claiming (without explaining that she has consulted with the government) that the basis for the government’s request has changed since they emailed and asked whether they were cool with a week-long delay.

Both the relief requested and the reasons underlying the government’s Motion to Amend have changed since it conferred with the defense earlier last week. Given the government’s Motion to Confirm Waiver, which raises issues the government did not mention previously, Michael T. Flynn (“Mr. Flynn”) does not oppose the Court granting a stay of the briefing schedule with a status report due from the parties by February 20, 2020. However, it is imperative that Mr. Flynn have time to brief the issues raised by the government’s new motion regarding the attorney-client privilege.

This could be because someone got through to Flynn and explained he was facing prison on this charge and perjury charges and implored him to withdraw his request to withdraw his plea. It could be because Shea — or Barr — has decided to weigh in. It could be that, given the government’s softer request for a guidelines sentence, Flynn has cut his losses.

All this time, Sullivan has been unusually quiet.

Update: Maybe I’m missing Flynn’s response. On second thought, I think they’re claiming (who knows if it’s true) that last week the government asked for an extension for one reason, and now they’re asking for another. Which would make the inclusion of Shea on this all the more interesting, if it is true, which it’s probably not.