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Pezzola

How J6C’s Obstinance on Transcripts Enabled Dominic Pezzola’s Attempt to Sow Conspiracy Theories

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On Friday, lawyers for Proud Boy Dominic Pezzola (who are among the more conspiratorial of the Proud Boy defense attorneys) filed a motion for a mistrial claiming that the “Winter Palace” document Enrique Tarrio received from one of his at least three girlfriends was created by the government. Here’s how the document was admitted as evidence last Thursday.

At issue is testimony that Samuel Armes provided to the January 6 Committee (and, as we’ll see, a grand jury) regarding his recognition that a document he created as part of imagining how an attack on the electoral certification would happen was altered to become the Winter Palace document.

Pezzola’s lawyer, Robert Root (who joined his team days before trial started) argued that when Judge Kelly ruled the document was admissible back in December, defense attorneys had not yet seen Armes’ testimony, and so could not argue that Armes — who claimed he had been trained to be a spook — was a government agent framing the Proud Boys.

According to the Politico article, Ms. Flores also gave an interview to the Jan. 6 Committee. And Ms. Flores reportedly testified that Armes was the author of the entirety of “1776 Returns” and that this FBI and CIA member or associate asked her to share it with Tarrio.

If true, this means that the most damning document in this trial was authored by the intelligence community—someone “groomed” by the FBI itself. And this CIA and FBI asset requested Tarrio’s friend to share the document with Tarrio just prior to January 6. [emphasis original]

The filing relies heavily on this Politico story, which extrapolates about a communication the January 6 Committee had with the girlfriend in question, Eryka Flores, but which was not released as a transcript.

In my opinion, this filing was designed first and foremost as bait for Jim Jordan to claim that even the Proud Boy prosecution is just the Deep State trying to frame Donald Trump, and only secondarily as yet another of the often frivolous motions for a mistrial defense attorneys have lodged in this case.

But the government has responded in here, partly by (inappropriately, in my opinion) mocking the illogic of Pezzola’s challenge, before going on to explain how the testimony of Armes, at least, totally rebuts Pezzola’s claims.

The government strongly disagrees with Pezzola’s characterization of both the facts and the record with respect to these assertions. The government robustly agrees with defendant Pezzola that it would have been egregiously improper for a member of the U.S. Intelligence Community to have conducted a domestic intelligence operation targeting Enrique Tarrio, a U.S. Person, and providing him with a plan to “storm” (or “occupy” or “sit in”) House and Senate Office Buildings on January 6. It would have been even more improper for a member of the U.S. Intelligence Community to send this plan to the leader of the Proud Boys when, just months before, then-President Trump had exhorted the Proud Boys to “stand back and stand by” during a nationally televised debate. And it would have been egregious indeed for a member of the U.S. Intelligence Community to send such a document to the leader of the Proud Boys in advance of January 6, in the wake of the violent attacks the Proud Boys were associated with in Washington, D.C., on November 14, and December 12, 2020. Surely, had the government planted such a document in the inbox of defendant Tarrio (ECF 660 at 5), one would hope that the U.S. Intelligence Community would have hewed to the truth of what happened on January 6 and included the Capitol as one of the targeted buildings.

The filing notes that, contrary to the claimed late notice with the release of the transcripts, the Proud Boys already received October 7 grand jury testimony from Armes that tracks his J6C testimony, a transcript from Flores’s May grand jury testimony showing her invoking the Fifth repeatedly, and a third witness describing receiving the document from Flores on a date that would be before she sent it to Tarrio on December 30.

The information that Samuel Armes drafted a document that inspired portions of the Government Exhibit 528-1 was disclosed to defense counsel by the government on November 16, 2022, when it provided counsel with a copy of Armes’ October 7, 2022, grand jury testimony.

[snip]

Armes testified that he shared his “wargaming” exercise in the form of a three- to five-page Google document with “Erika Flores” sometime between August 2020 and January 2021. 7/18/2022 HSC Tr. at 12; 10/6/2022 Grand Jury Tr. at 26. When asked why Flores told the House Select Committee that Armes had drafted the document, he testified “I guess she is just blame shifting.” 7/18/2022 HSC Tr. at 20. Armes surmised that Flores had taken his “ideas as an inspiration, and her or some group of people then turned it into ‘1776 Returns.’” Id. Indeed, when subpoenaed to testify before the Grand Jury in this case on May 3, 2022, Flores answered only brief biographical questions and then invoked her fifth amendment right not to testify repeatedly in response to more than 50 transcript pages worth of questions by the government about the “1776 Returns” document. That transcript was provided to defense counsel on November 16, 2022.1

1 On that same day, counsel were provided with the grand jury transcript of another witness who testified that a girlfriend of Enrique Tarrio known as “Erika” had messaged a document to the witness about two weeks before January 6 and asked the witness to fill in the names of people to participate in an “infiltration plan.” The witness further recalled that the individuals were to dress like they belonged in the buildings and to have set up prior meetings to gain access. Compare Government Ex. 528-1 at pages 3, 6.

The third witness may be Jeremy Liggett, whom J6C investigators suggested had some tie to the document as well.

There are just three problems with this.

First, as Politico reported today, Flores didn’t invoke the Fifth to the J6C.

Two investigators familiar with her interview — an informal, untranscribed appearance in early 2022 — say that while she was a reluctant witness and initially planned to plead the Fifth, she ultimately agreed to answer some questions about the document.

“Instead of pleading the Fifth, we did an interview with her,” one of the investigators said, speaking on condition of anonymity to describe information the committee had not publicly released. “She gave us the name of Samuel Armes as the name of the individual who wrote the document.”

[snip]

The select committee investigators said they found Armes to be more forthcoming than Flores, who they said exhibited a “general apprehension.” Flores didn’t respond to messages and emails seeking comment.

“She acted like she didn’t know what it was at all,” said one of the investigators.

The two investigators said Flores indicated she had shared the document with Tarrio to impress him during a sensitive phase in their relationship and disclaimed specific knowledge about its contents.

The Stone-related witnesses very carefully manipulated the J6C, and Flores’ decision to testify may be an example. At the very least, Pezzola may have basis to demand that Kelly immunize Flores.

Another problem is that Jocelyn Ballantine is formally on the government response. I’ve noted before how insanely stupid it is for DOJ to have her in an increasingly senior role in the January 6 committee, and discovery disputes like this are precisely why.

The third problem with all this is that DOJ should be able to get Google metadata associated with the document to provide more clarity about the document. Perhaps a later witness will explain efforts to do so (thus far, it has just been introduced as an attachment to a Telegram text). But there are outstanding questions that may have answers.

In any case, this is now the second time that J6C’s refusal to turn over transcripts has endangered this prosecution.

Yes, It Turned Out January 6 Committee Endangered the DOJ Investigation by Withholding the Jeremy Bertino Transcript in June

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I often get accused of being an uncritical booster for DOJ on the January 6 investigation. In reality, I have focused my criticism on real problems with the investigation.

In fact several of the criticisms I’ve raised have borne out in recent days, as an attorney-client conflict that should have been identified in June threatened (and still threatens) to bollox the Proud Boy Leader trial, and with it the larger effort to tie Trump’s immediate associates with the crime scene.

Twice, for example, I’ve discussed how central Joe Biggs’ actions the day of the attack were to understanding the larger event. In the first, I described how Biggs’ chumminess with FBI agents led them to overlook his plans for a terrorist attack on the Capitol.

Something brought Joe Biggs, Florida Oath Keepers Kenneth Harrelson and Jason Dolan, along with former Biggs employer Alex Jones to the top of the East steps, along with the mob that Jones brought on false pretenses. Shortly thereafter, Florida Oath Keeper head Kelly Meggs would bring a stack of Oath Keepers through the same door and — evidence suggests — in search of Nancy Pelosi, whom Meggs had talked about killing on election day.

Joe Biggs kicked off the riot on the West side of the building.

Then he went over to the East side to join his former employer Alex Jones and a bunch of Oath Keepers, led by fellow Floridians, to lead a mob back into the Capitol.

West side. Joe Biggs. East side. Joe Biggs.

This is the guy a couple of FBI Agents in Daytona believed was a credible informant against Antifa.

A month later, I described how problematic it was that an AUSA who played a part in Sidney Powell’s efforts to spread false claims about Mike Flynn and Joe Biden before the 2020 election had a role (now reportedly expanded) in overseeing the prosecution of Biggs.

Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

Which is why it is so unbelievable that DOJ put someone who enabled Sidney Powell’s election season lies about the Mike Flynn prosecution, Jocelyn Ballantine, on that prosecution team.

All that was clear by September 2021.

In that same time period, I was complaining and complaining and complaining about DOJ’s lackadaisical approach to attorney conflicts, first as John Pierce racked up 20 clients, most who served as a firewall to Biggs and the other Proud Boy leaders, and later as DOJ waited three months before inquiring into Sidney Powell’s alleged role in funding some of the Oath Keeper’s defense teams.

The importance to the Trump investigation of getting the militia conspiracies that implicate Roger Stone and Alex Jones right is one of the reasons I argued, in June 2022, that it was urgent for the Proud Boys’ prosecution team to get Jeremy Bertino’s transcript sooner rather than later.

On June 6, DOJ charged the Proud Boy Leaders with sedition. As I noted at the time, the single solitary new overt act described in the indictment involved Jeremy Bertino, Person-1, seeming to have advance knowledge of a plan to occupy the Capitol.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

Just days earlier, as part of a discovery dispute, prosecutors had provided this (dated) discovery index. For several reasons, it’s likely that at least some these entries pertain to Bertino, because the CE ones are from the Charlotte office, close to where he lives, because he’s one of the three uncharged co-conspirators of central importance to the Proud Boys efforts, and because we know FBI did searches on him.

In a hearing during the day on June 9, the Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start. In the hearing there was an extensive and repeated discussion of the deposition transcripts from the committee investigation. AUSA Jason McCullough described that there had been significant engagement on depositions, but that the January 6 Committee wouldn’t share them. As far as he knew, the Committee said they would release them in September, which would be in the middle of the trial. Joe Biggs’ attorney insisted that DOJ had the transcripts, and that they had to get them to defendants.

Judge Tim Kelly ordered prosecutors that, if they come into possession of the transcripts, they turn them over within 24 hours.

Hours later, during the first (technically, second) January 6 Committee hearing, the Committee included a clip from Bertino describing how membership in the Proud Boys had tripled in response to Trump’s “Stand Back and Stand By” comment.

His cooperation with the Committee was not public knowledge. I have no idea whether it was a surprise to DOJ, but if it was, it presented the possibility that, in the guise of cooperating, Bertino had just endangered the Proud Boy sedition prosecution (which wouldn’t be the first time that “cooperative” Proud Boys proved, instead, to be fabricators). At the very least, it meant his deposition raised the stakes on his transcript considerably, because DOJ chose not to charge him in that sedition conspiracy.

Today, in response to a bid by Dominic Pezzola and Joe Biggs to continue the trial until December, DOJ acceded if all defendants agree (Ethan Nordean won’t do so unless he is released from jail). With it they included a letter they sent yesterday to the Committee — following up on one they sent in April — talking about the urgency with which they need deposition transcripts.

We note that the Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) in its June 9, 2022 and June 13, 2022, hearings extensively quoted from our filings in active litigation and played portions of interviews the Select Committee conducted of individuals who have been charged by the Department in connection with the January 6th Attack on the United States Capitol.

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced. Given this overlap, it is critical that the Select Committee provide us with copies of the transcripts of all its witness interviews. As you are aware, grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the Department’s ongoing criminal investigations. Moreover, it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations. We cannot be sure that all relevant evidence has been considered without access to the transcripts that are uniquely within the Select Committee’s possession.

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

Less than a week before I wrote that, there’s reason to believe, DOJ had flipped a key witness in the case.

It appears that DOJ did not get Jeremy Bertino’s transcript until around December 7. DOJ promised to give transcripts to the defendants within 24-hours after they received them, and DOJ provided 16-January 6 Committee transcripts on December 8.

And we now know the Bertino transcript was utterly critical to preparing for the trial, which is about to kick off. That’s because, in his deposition with the committee, Bertino explained at length both what appeared to be an attempt, by Joe Biggs’ attorney Dan Hull, to tie representation in a civil lawsuit to a deposition in the trial, and because Bertino had conversations with Hull on the day his girlfriend’s home was searched (which is probably when the FBI found the unregistered weapons described in Bertino’s plea paperwork).

A Yes. So I’m going to go back in my memory and try to remember the first time that I spoke with him. I believe it was after I received a civil suit from a church. I reached out to Enrique Tarrio and said, hey, I just got this subpoena or notice of civil suit. I think I need an attorney. And he’s like, oh, well, I’ll talk to Dan, my attorney, and I’ll see if he’ll take it for you. So I said okay. Couple of weeks went by, I didn’t hear anything. I got back in touch with Enrique and asked him, I said, hey, have you talked to your lawyer? And he’s, like, oh, yeah, Dan said he’ll do it for you pro bona because you were stabbed, but he wants to talk to you.

And so he sent me his phone number and I called Dan. I can’t remember when, what date, I don’t remember the specific details, but I do remember calling him and him basically asking me — or I was asking him about representing me in the case and he said oh, sure, sure, sure, we’ll get to that. But he was interested in possibly having me take the stand in the Joe Biggs’ trial about my stabbing to show why Joe was wearing body armor when he was in D.C. because there was a lot of talk after I was stabbed about guys making sure you had a stab proof vest on and stuff like that.

So I think his original intent was to get me on board to help his client. And then the next — I believe the next interaction I had was when I — Jay Thaxton reached out to me and was looking for representation for his deposition. And I said, hey, give this guy Dan a call. I sent him Dan’s number. And I guess Dan took care of his deposition, which I, you know, when I kind of heard what happened there, that’s when I became reluctant to have him represent me in this.

He didn’t seem very stable on the phone. I started to really listen to when he was talking and his rants, and I was, like, okay, this guy– I don’t think this guy’s great for me.

And then the morning that the FBI raided my girlfriend’s house I reached out to him because he was the only attorney that I knew and I was just kind of asking him for advice on how to handle everything.

And I specifically asked him for a retainer, like, can we sign a retainer paperwork, and he was, like, not right now, not right now. And I said okay.

Then a few days later, he asked — he called me — he would call me randomly late at night and go on, like, an hour rant about how the Proud Boys were little girls and just, I mean, off the rail conversations. I didn’t know what he was talking about. I was, like, my brain was popping trying to figure out what he was talking about. Then I believe he came to me and said, well, I’m going to — he said, do you want me to accept service on your behalf for the congressional thing, he said, but I’m not going to be able to be there because that date doesn’t work for me, so you’re going to have to go do it on your own.

I said no — and this was on a phone conversation, not a text conversation — I said no. He’s like, well, take 48 hours and think about it. This was on like a — I don’t even remember what day, but I believe it was the day before he actually accepted service from you guys. And he never got confirmation from me to accept service.

He said, well, just take 48 hours and think about it. I said, okay.

Next phone call I got from him was, hey, I accepted service, your date for your deposition is this day, and I’m not going to be there so you’re going to be on your own.

And that is pretty much when I cut off contact, I stopped responding to his calls and his text messages, and I hired Mr. Wellborn.

Bertino’s prior conversations with Hull were made all the more urgent because Norm Pattis, Alex Jones’ attorney, just got kicked off the case after having his license suspended in Connecticut for violating the Sandy Hook protective order, something we all knew was coming since November. [Update: Judge Tim Kelly is letting Pattis stay on the team, though it’s unclear in what role.]

Yesterday and today, Judge Tim Kelly hammered out some plan whereby Hull will be prevented from questioning Bertino, but that in no way eliminates the conflict. That in no way eliminates the risk of having Hull serve as the sole attorney in a case where he had privileged conversations with one of the key cooperating witnesses.

The J6C Committee is significantly to blame about this — at least by the time Bertino’s plea became public, they had to have recognized this conversation needed to be shared with prosecution.

But DOJ itself should have raised conflict issues with Pattis. At the time he joined Biggs’ team last summer, he was already representing Jones’ sidekick, Owen Shroyer, who had a bunch of calls with both Ethan Nordean and Biggs in advance of and during the attack.

Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Meanwhile, the emergency motion to keep Pattis on the trial team claimed that both he and Hull are representing Jones.

He was suspended for disclosing confidential medical records to other lawyers working on related matters for our joint client, Alex Jones;

This is insanity! You’ve got two lawyers, both facing major ethical challenges, jointly representing Biggs, Jones, and Shroyer in prosecutions aiming to demonstrate that after Trump asked him to lead a mob to the Capitol, Jones coordinated the delivery of that mob to the Proud Boys.

And Pattis’ suspension will upend the prosecutions of both Shroyer — who at least claimed he would plead guilty at the end of this month — and a guy named Doug Wyatt, who has long been pegged by researchers as one of the rioters who seemed like he might be coordinating with others.

While a lot of people were wailing that J6C was way ahead of DOJ, I was raising concerns about the things that may upend the most important prosecution to date: that Bertino transcript and attorney conflicts.

It turns out I had reserved my complaints for the stuff that, as the trial kicks off, could be the thing that sinks it.

Kellye SoRelle: Oath Keeper Capper or Potential Pivot?

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The government arrested Kellye SoRelle yesterday via an indictment charging three counts of obstruction and one count of trespassing. She’s best known as the lawyer for the Oath Keepers, though for a period she was acting as the President of the militia.

That she was arrested was not surprising. It has been known for some time that she’s the person who advised Rhodes to start deleting evidence of his activities on January 6, which he and others did. She even admitted it to MoJo’s Dan Friedman. Those who did delete their comms have all been charged for deleting evidence. The government even included that in Joshua James’ statement of offense, who is now cooperating with the government.

On January 8, 2021, James received a Signal message, in a group chat that included Rhodes, from an individual he understood to be an attorney for the Oath Keepers that stated, “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT. You are under zero obligation to leave them up. You/we have not yet gotten a preservation order instructing us to retain those chat comments. So DELETE THEM. I can’t delete them because this is a legacy Signal chat that doesn’t let me delete comments. Only the comment author can delete a comment. So GET BUSY. DELETE your self-incriminating comments or those that can incriminate others. Start now …”

So it’s unsurprising that she was also charged under 18 USC 1512(b)(2) for corruptly persuading and attempting to corruptly persuade others to delete evidence.

On its face, the indictment against SoRelle is all about capping off the Oath Keeper conspiracy. Her arrest warrant lists the two conspiracies, 22-cr-15 (the Rhodes seditious conspiracy) and 21-cr-28 (the lesser conspiracy now named after Donovan Crowl), as related cases, landing her case before Judge Amit Mehta. All seven of the Oath Keeper prosecutors were listed on the motion to seal her arrest warrant.

At that level, charging her seems like a way to ensure defendants in the sedition trial cannot foist all the blame for deleting those communications off on an uncharged co-conspirator.  In fact, Gateway Pundit, which has invented some of the central conspiracy theories about this case (including one spun directly by SoRelle), yesterday complained that DOJ only charged SoRelle because she recently agreed to testify in Rhodes’ defense.

Gateway Pundit’s earlier conspiracy theory, based on claims made by another cooperating Oath Keeper witness, Jason Dolan, appears to be one of the ways prosecutors managed to argue that her communications were not privileged.

As such, much of this indictment is about capping off the Oath Keeper case. But there are a few details that I find interesting.

First, unlike Michael Greene (the field commander for the Oath Keepers the day of the attack), who was superseded into the Crowl (lesser) conspiracy case on June 22, SoRelle was charged via indictment with conspiracy by herself. By comparison, when DOJ spun Jonathan Walden off onto his own indictment, the conspiracy charge against him was dropped.

Perhaps DOJ treated her this way because she mostly just interacted with Rhodes on January 6, but since she didn’t do anything meriting a sedition charge, she was charged by herself?

But there are other details that make me wonder whether DOJ isn’t doing something more by charging her.

SoRelle was charged by the same grand jury that did the bulk of the investigative work against all January 6 attackers for all of 2021, but which focused especially on the Oath Keepers. Its work seemed to culminate in January with the seditious conspiracy indictment. Since then, its main public work was to supersede Greene into the lesser conspiracy, 17 months after it was convened, as well as supserseding the Rhodes indictment to tweak how sedition was charged, also in that 17th month.

But the indictment against SoRelle means that grand jury is still at work in the 19th month after it was convened. Grand juries are usually convened for 18 months, so this seems to suggest the Oath Keeper grand jury has been extended, and extended (thus far) solely to charge someone whose phone the government seized last September.

Meanwhile, SoRelle’s indictment seems to have been initialed by Jocelyn Ballantine.

Up until now, Ballantine was known only to have a (behind-the-scenes) role in managing the Proud Boys investigation, which is not only less orderly than the Oath Keepers investigation, but seems to be understaffed, particularly as compared to the consistent 7-person team that has relentlessly pursued the Oath Keepers.

One reason you might charge SoRelle, by herself, on a conspiracy indictment is to add others to it. And while she’s best known for her role with the Oath Keepers and this indictment is closely tied to the Oath Keepers prong of the investigation, she actually has a number of ties to other key players in January 6.

She was present at the January 4, 2021 parking garage meeting between Rhodes and Enrique Tarrio, for example. She would have been a key facilitator for it. At the time, she was serving as the lawyer for both the Oath Keepers and Latinos for Trump. (It was via Tarrio’s involvement in Latinos for Trump that he went on December tour of the White House, arranged by Bianca Gracia, who was also at that garage meeting.)

As Ryan Reilly noted yesterday, SoRelle was also a volunteer for Lawyers for Trump, and in that guise, Rhodes tried to get her to put him in touch with people in Trump’s orbit. SoRelle claims that she declined to do that.

In the weeks leading up to the Jan. 6 attack on the Capitol, Oath Keepers founder Stewart Rhodes tried to get the organization’s general counsel, Kellye SoRelle, to put him in touch with the White House, she told NBC News.

In addition to her work with the Oath Keepers, SoRelle was a volunteer for Lawyers for Trump during the 2020 election and was in contact with many of the people fighting a doomed legal battle to try to overturn the 2020 presidential election and keep former President Donald Trump in office. The contacts include, she said, people in Rudy Giuliani’s and Sidney Powell’s camps, as well as those inside the administration, although she added that she “wasn’t, like, communicating with Trump directly.”

Rhodes wanted her to put him in touch with the White House. “He was hitting me up for a contact,” said SoRelle, a family law lawyer who previously ran for the Texas state House. “He didn’t have any access points.”

As he prepared an open letter calling on Trump to invoke the Insurrection Act in the weeks leading up to Jan. 6, 2021, Rhodes asked SoRelle to send it to the White House. She says she declined.

SoRelle has been caught making false claims to the press before.

Finally, in the clip of SoRelle’s testimony to the January 6 Committee that has been made public, she described how Roger Stone, Alex Jones, and Ali Alexander took the lead on planning the Stop the Steal events.

JAMIE RASKIN: Kelly Sorrell, a lawyer who assists the Oath Keepers and a volunteer lawyer for the Trump campaign, explained to the committee how Roger Stone and other figures brought extremists of different stripes and views together. [Begin videotape]

UNKNOWN: You mentioned that Mr. Stone wanted to start the Stop the Steal series of rallies. Who did you consider the leader of these rallies? It sounds like from what you just said, it was Mr. Stone, Mr. Jones, and Mr. Ali Alexander. Is that correct?

KELLY SORRELL: Those are the ones that became like the — the center point for everything. [End videotape]

In other words, while SoRelle didn’t breach the Capitol in body armor like the rest of the Oath Keepers, she was (along with Roger Stone) one of the key pivots between the Oath Keepers and the rest of the organizing effort behind January 6. She was networked with other planners in a way that even Rhodes was not.

For over a year, I’ve been describing that the elegant thing about the obstruction conspiracy charges DOJ has used to charge the Oath Keepers, Proud Boys, and others, is those separate conspiracies might one day start to coalesce via the nodes between them. Kellye SoRelle has, by all appearances, been charged in a conspiracy with the Oath Keepers.But if she also conspired on other aspects of January 6 with other people and organizations, including White House lawyers, then the various existing conspiracies might network into a larger conspiracy.

The lead prosecutor on SoRelle’s case, incidentally, also happens to be the lead prosecutor on Owen Shroyer’s prosecution.

Update: Corrected that SoRelle stepped down as President when Rhodes was arrested.

John Durham Is Hiding Evidence of Altered Notes

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On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.

In John Durham’s bid to introduce notes from Bill Priestap and Trisha Anderson, he presented a color scan of Anderson’s notes [red annotation added]:

But he presented a black and white scan of Priestap’s notes [red annotation added]:

That’s important for two reasons. First, because blue sticky tabs were implicated in altered documents submitted in the Mike Flynn case. There was a blue sticky tab on another page of Priestap notes submitted in Flynn’s case.

There were what appear to be blue and red stickies visible on the original version of some Peter Strzok notes submitted in that case.

When the government ultimately confessed to adding dates (affirmatively misleading, in at least one case) to both that set of Strzok notes …

And some Andrew McCabe notes …

… The government claimed that the date added to some Andrew McCabe notes was added via a blue sticky — what sounds like the same sticky we saw in the Priestap notes.

In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. The government has also confirmed with Mr. Goelman and can represent that the content of the notes was not otherwise altered.

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. Again, the content of the notes was not otherwise altered. [my emphasis]

If that’s right, then whoever altered the McCabe notes altered them with the same kind of blue sticky note that appears on the Priestap notes that Durham wants to submit at trial.

Whether that date was added via blue sticky note has never been publicly tested. Rather than submitting unaltered versions of McCabe’s notes in the Flynn docket, DOJ — metadata suggests that Jocelyn Ballantine did this — simply digitally removed the date and a footer, effectively submitting a realtered exhibit in place of an altered one. So one cannot rule out that that date was written right onto the notes themselves. McCabe was being specifically prevented by DOJ from reviewing his original notes in the period, not even to prepare for Senate Judiciary Committee testimony, so he hasn’t been able to test that either.

That, by itself, suggests some of the alterations that were an issue in the Flynn docket were altered before they were shared with Jeffrey Jensen.

But that’s all the more interesting given a detail that Michael Sussmann included in his bid to exclude these notes. In Priestap’s grand jury testimony in this case, he testified he didn’t know why he wrote the “no specific client” comment on a slant, or why those notes were, “perhaps darker or thicker than some of the other notes.”

The Indictment characterizes the Priestap Notes as a contemporaneous record of Mr. Priestap’s conversation with Mr. Baker. See id. But beyond offering that they “looked like his writing and organizational style,” Mem. of Special Counsel’s June 2, 2021 Interview of E.W. Priestap, SCO-3500U-018701, at -01, Mr. Priestap said he “[doesn’t] remember why [he] wrote them down and who gave [him] the information,” E.W. Priestap’s June 3, 2021 Grand Jury Test., SCO-3500U-018746, at -98. Not only that, but Mr. Priestap “[does] not recall actually writing these notes,” id. at SCO-3500U-018815, nor can he confirm that the notes actually reflect any conversation he had with Mr. Baker, as opposed to a conversation he had with someone else, id. Indeed, Mr. Priestap “advised he did not remember Baker conveying to him the information about Sussmann,” Mem. of Special Counsel’s June 2, 2021 Interview of E.W. Priestap at SCO-3500U 018702, and was “not certain whether th[e] conversation reflected in the notes . . . was with Mr. Baker or maybe with someone else,” E.W. Priestap’s June 3, 2021 Grand Jury Test. at SCO3500U-018815. Mr. Priestap also has “[n]o idea” why the phrase “said not doing this for any client”—written diagonally to the side of the main body of the notes—was written at all, and could offer no explanation for why those words were “perhaps darker or thicker than some of the other notes.” Id. at SCO-3500U-018816.

The date in the January 24, 2017 Priestap notes is even more irregular — at cross-direction from his other notes on the page, and with uneven ink — and I have always wondered whether that date was added too.

And lo and behold, the Anderson notes also appear to have a sticky note right by the date (as annotated), albeit apparently a red one, though some of the tags on the Strzok notes were of a similar color. She also found aspects of her notes surprising.

Ms. Anderson’s notes (the “Anderson Notes”) include, on top, “Deputies Mtg. 9/19/16,” and then, after a redaction and under a second heading reading “9/19[/]16,” go on to state: “Sussman[n] Mtg w/ Baker” and “No specific client but group of cyber academics talked w/ him abt research,” followed by the phrase, “article this Friday – NYT/WaPo/WSJ.” Anderson Notes at SCO-3500U-000018. The relevant sentence fragment contains no subject revealing who had “[n]o specific client,” nor any other context for that phrase. Ms. Anderson, who was first asked about these notes by the Special Counsel over five years after they were written, has no meaningful memory of the notes or their context: she has only a “vague recollection” of discussing this topic with Mr. Baker and cannot “recall specifics.” Mem. of Special Counsel’s Jan. 5, 2022 Interview of T. Anderson, SCO-3500U-000087, at -88, -96. When shown the notes, Ms. Anderson stated that she had been “surprised” to learn about the “no specific client” phrase, and she “d[id] not now recall hearing from Baker his use” of that phrase; she could only assume that she got that phrase from Mr. Baker “because her notes reflect[ed] it.” Id. at -88.

Durham has only provided a partial scan of theses notes, hiding that the date, 9/19/16, appears earlier on the page, describing a different kind of meeting. That’s consistent with what the added date and the redaction on the McCabe notes did: It served to suggest that McCabe briefed the Flynn case to SSCI the day after Jim Comey was fired. Here, the September 19 date that appears next to the sticky is necessary for Durham’s case to claim that Anderson took these notes the same day of the meeting and not some time after that.

But why would Anderson date her notes twice?

According to a discovery filing in this case, Sussmann has reviewed redacted versions of the originals of the Priestap notes, which were still in the notebook Priestap took them in.

On October 13, 2021, the defense requested, among other things, to inspect the original notes that a former FBI Assistant Director of Counterintelligence took reflecting the defendant’s alleged false statement. The original notes were contained in a hard-bound notebook located at FBI Headquarters and contained extremely sensitive and highly classified information on a variety of topics and unrelated investigative matters. The Government immediately agreed to make the original notebook available to the defense in redacted form, and the defense conducted its review of the notebook on October 20, 2021.

But to test why all these notes have post-it notes on them and why the dates are so unreliable (and affirmatively misleading, in the case of the alteration in the January 5, 2017 Strzok notes), Sussmann would need to review all the notes together, probably with the assistance of the original authors.

It’s still not clear who altered the notes submitted in the Flynn docket, the extent of those alterations, or why the government is submitting exhibits with investigative stickies on them as evidence at trial. DOJ’s filing in the Flynn case blamed the misleading date on the Strzok notes on an FBI agent associated with the Jeffrey Jensen investigation (which would suggest that alteration post-dated Durham’s access to it), but it did not say who altered the McCabe notes.

But by showing that the blue sticky notes existed in Durham’s copy of the exhibits, Durham makes it clear some of the alterations exhibited in the Flynn docket happened before he shared the documents with Jensen’s investigation, if that’s how the notes got shared around.

The misleading date added to the Strzok notes ultimately was part of a packaged Trump attack on Joe Biden at the first debate, one that Sidney Powell, who has since been sanctioned for making fraudulent claims in an attempt to keep Trump in office, appears to have had a part in.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

Given that even Chuck Grassley recognized the alteration added to the Strzok notes was incorrect, it’s hard to believe that was an innocent mistake.

And yet, 18 months later, DOJ is still trying to submit notes with all these investigative sticky notes as exhibits, without explaining why or how they appeared there.

And Durham’s choice to present the Priestap notes — with what appear to be the same blue sticky as appeared on his earlier notes, as well was the the blue sticky described to have been used to alter the McCabe notes — in black-and-white suggests he may know that’s a problem.

DOJ Put Someone Who Enabled Sidney Powell’s Lies — Jocelyn Ballantine — in Charge of Prosecuting the Proud Boys

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Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

Which is why it is so unbelievable that DOJ put someone who enabled Sidney Powell’s election season lies about the Mike Flynn prosecution, Jocelyn Ballantine, on that prosecution team.

Yesterday, at the beginning of the Ethan Nordean and Joe Biggs hearing, prosecutor Jason McCullough told the court that in addition to him and Luke Jones, Ballantine was present at the hearing for the prosecution. He may have said that she was “overseeing” this prosecution. (I’ve got a request for clarification in with the US Attorney’s office.)

Ballantine has not filed a notice of appearance in the case (nor does she show on the minute notice for yesterday’s hearing). In the one other January 6 case where she has been noticeably involved — electronically signing the indictment for Nick Kennedy — she likewise has not filed a notice of appearance.

Less than a year ago when she assisted in DOJ’s attempts to overturn the Mike Flynn prosecution, Ballantine did three things that should disqualify her from any DOJ prosecution team, much less serving on the most important prosecution in the entire January 6 investigation:

  • On September 23, she provided three documents that were altered to Sidney Powell, one of which Trump used six days later in a packaged debate attack on Joe Biden
  • On September 24, she submitted an FBI interview report that redacted information — references to Brandon Van Grack — that was material to the proceedings before Judge Emmet Sullivan
  • On October 26, she claimed that lawyers for Peter Strzok and Andrew McCabe had checked their clients’ notes to confirm there were no other alterations to documents submitted to the docket; both lawyers refused to review the documents

After doing these things in support of Bill Barr’s effort to undermine the Flynn prosecution (and within days of the Flynn pardon), Ballantine was given a confidential temporary duty assignment (it may have been a CIA assignment). Apparently she’s back at DC USAO now.

Three documents got altered and another violated Strzok and Page’s privacy

As a reminder, after DOJ moved to hold Mike Flynn accountable for reneging on his plea agreement, Billy Barr put the St. Louis US Attorney, Jeffrey Jensen, in charge of a “review” of the case, which DOJ would later offer as its excuse for attempting to overturn the prosecution.

On September 23, Ballantine provided Powell with five documents, purportedly from Jensen’s investigation into the Flynn prosecution:

I outlined the added date on the first set of Strzok notes here:

There was never any question that the notes could have been taken no earlier than January 5, because they memorialized Jim Comey’s retelling of a meeting that other documentation, including documents submitted in the Flynn docket, shows took place on January 5. Even Chuck Grassley knows what date the meeting took place.

But DOJ, while using the notes as a central part of their excuse for trying to overturn the Flynn prosecution, nevertheless repeatedly suggested that there was uncertainty about the date of the notes, claiming they might have been taken days earlier. And then, relying on DOJ’s false representations about the date, Sidney Powell claimed they they showed that Joe Biden — and not, as documented in Mary McCord’s 302, Bob Litt — was the one who first raised the possibility that Flynn may have violated the Logan Act.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

During the day on September 29, Powell disclosed to Judge Sullivan that she had spoken to Trump (as well as Jenna Ellis) about the case. Then, later that night, Trump delivered a prepared attack on Biden that replicated Powell’s false claim that Biden was behind the renewed investigation into Flynn.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

In a matter of days, then, what DOJ would claim was an inadvertent error got turned into a campaign attack from the President.

When DOJ first confessed to altering these notes, they claimed all the changes were inadvertent.

In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. The government has also confirmed with Mr. Goelman and can represent that the content of the notes was not otherwise altered.

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. Again, the content of the notes was not otherwise altered.

There are multiple reasons to believe this is false. For example, when DOJ submitted notes that Jim Crowell took, they added a date in a redaction, something that could in no way be inadvertent. And as noted, the January 5 notes had already been submitted, without the date change (though then, too, DOJ claimed not to know the date of the document).

But the most important tell is that, when Ballantine sent Powell the three documents altered to add dates, the protective order footer on the documents had been removed in all three, in the case of McCabe’s notes, actually redacted. When she released the re-altered documents (someone digitally removed the date in the McCabe notes rather than providing a new scan), the footer had been added back in. This can easily be seen by comparing the altered documents with the re-altered documents.

The altered January 5, 2017 Strzok notes, without the footer:

The realtered January 5, 2017 Strzok notes, with the footer:

The second set of Strzok notes (originally altered to read March 28), without the footer:

The second set of Strzok notes, with the footer.

The altered McCabe notes, with the footer redacted out:

The realtered McCabe notes, with the footer unredacted:

This is something that had to have happened at DOJ (see William Ockham’s comments below and this post for proof in the metadata that these changes had to have been done by Ballantine). The redaction of the footers strongly suggests that they were provided to Powell with the intention of facilitating their further circulation (the other two documents she shared with Powell that day had no protective order footer). In addition, each of these documents should have a new Bates stamp.

DOJ redacted Brandon Van Grack’s non-misconduct

On September 24, DOJ submitted a report of an FBI interview Jeffrey Jensen’s team did with an Agent who sent pro-Trump texts on his FBI-issued phone, Bill Barnett. In the interview, Barnett made claims that conflicted with actions he had taken on the case. He claimed to be unaware of evidence central to the case against Flynn (for example, that Flynn told Sergey Kislyak that Trump knew of something said on one of their calls). He seemed unaware of the difference between a counterintelligence investigation and a criminal one. And he made claims about Mueller prosecutors — Jeannie Rhee and Andrew Weissmann — with whom he didn’t work directly. In short, the interview was obviously designed to tell a politically convenient story, not the truth.

Even worse than the politicized claims that Barnett made, the FBI or DOJ redacted the interview report such that all reference to Brandon Van Grack was redacted, substituting instead with the label, “SCO Atty 1.” (References to Jeannie Rhee, Andrew Weissmann, and Andrew Goldstein were not redacted; there are probable references to Adam Jed and Zainab Ahmad that are not labeled at all.)

The result of redacting Van Grack’s name is that it hid from Judge Sullivan many complimentary things that Barnett had to say about Van Grack:

Van Grack’s conduct was central to DOJ’s excuse for throwing out the Flynn prosecution. Powell repeatedly accused Van Grack, by name, of engaging in gross prosecutorial misconduct. Yet the report was submitted to Judge Sullivan in such a way as to hide that Barnett had no apparent complaints about Van Grack’s actions on the Flynn case.

I have no reason to believe that Ballantine made those redactions. But according to the discovery letter she sent to Powell, she sent an unredacted copy to Flynn’s team, while acknowledging that the one she was submitting to the docket was redacted. Thus, she had to have known she was hiding material information from the Court when she submitted the interview report.

Ballantine falsely claimed Strzok and McCabe validated their notes

After some of these alterations were made public, Judge Sullivan ordered DOJ to authenticate all the documents they had submitted as part of their effort to overturn the Flynn prosecution. The filing submitted in response was a masterpiece of obfuscation, with three different people making claims while dodging full authentication for some of the most problematic documents. In the filing that Ballantine submitted, she claimed that Michael Bromwich and Aitan Goelman, lawyers for McCabe and Strzok, “confirmed” that no content was altered in the notes.

The government acknowledges its obligation to produce true and accurate copies of documents. The government has fully admitted its administrative error with respect to the failure to remove three reviewer sticky notes containing estimated date notations affixed to three pages of undated notes (two belonging to former Deputy Assistant Director Peter Strzok, and one page belonging to former Deputy Director Andrew McCabe) prior to their disclosure. These dates were derived from surrounding pages’ dates in order to aid secondary reviewers. These three sticky notes were inadvertently not removed when the relevant documents were scanned by the FBI for production in discovery. See ECF 259. The government reiterates, however, that the content of those exhibits was not altered in any way, as confirmed by attorneys for both former FBI employees. [underline original]

According to an email Bromwich sent Ballantine, when Ballantine asked for help validating the transcripts DOJ did of McCabe’s notes, McCabe declined to do so.

I have spoken with Mr. McCabe and he declines to provide you with any information in response to your request.

He believes DOJ’s conduct in this case is a shocking betrayal of the traditions of the Department of the Justice and undermines the rule of law that he spent his career defending and upholding. If you share with the Court our decision not to provide you with assistance, we ask that you share the reason.

We would of course respond to any request that comes directly from the Court.

And according to an email Goelman sent to Ballantine, they said they could not check transcriptions without the original copies of documents.

Sorry not to get back to you until now.  We have looked at the attachments to the email you sent yesterday (Sunday) afternoon.  We are unable to certify the authenticity of all of the attachments or the accuracy of the transcriptions.  To do so, we would need both more time and access to the original notes, particularly given that U.S. Attorney Jensen’s team has already been caught altering Pete’s notes in two instances.  However, we do want to call your attention to the fact that Exhibit 198-11 is mislabeled, and that these notes are not the notes of Pete “and another agent” taken during the Flynn interview.

Additionally, we want to register our objection to AUSA Ken Kohl’s material misstatements to Judge Sullivan during the September 29, 2020, 2020, [sic] telephonic hearing, during which Mr. Kohl inaccurately represented that Pete viewed himself as an “insurance policy” against President Trump’s election.

I have no reason to believe the content was altered, though I suspect other things were done to McCabe’s notes to misrepresent the context of a reference in his notes to Flynn. But not only had McCabe and Strzok not validated their notes, but they had both pointedly refused to. Indeed, during this same time period, DOJ was refusing to let McCabe see his own notes to prepare for testimony before the Senate Judiciary Committee. Nevertheless, Ballantine represented to Judge Sullivan that they had.

It baffles me why DOJ would put Ballantine on the most important January 6 case. Among other things, the conduct I’ve laid out here will make it easy for the defendants to accuse DOJ of similar misconduct on the Proud Boys case — and doing just that happens to be Nordean’s primary defense strategy.

But I’m mindful that there are people in DC’s US Attorney’s Office (not Ballantine) who took actions in the past that may have made the January 6 attack more likely. In a sentencing memo done on Barr’s orders, prosecutors attempting to minimize the potential sentence against Roger Stone suggested that a threat four Proud Boys helped Roger Stone make against Amy Berman Jackson was no big deal, unworthy of a sentencing enhancement.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

Judge Jackson disagreed with this assessment. In applying the enhancement, she presciently described how dangerous Stone and the Proud Boys could be if they incited others.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

The people at DOJ who claimed that this toxic team was not dangerous in the past may want to downplay the critical role that Stone and the Proud Boys played — using the same kind of incendiary behavior — in the January 6 assault.

Whatever the reason, though, it is inexcusable that DOJ would put someone like Ballantine on this case. Given Ballantine’s past actions, it risks sabotaging the entire January 6 investigation.

DOJ quite literally put someone who, less than a year ago, facilitated Sidney Powell’s lies onto a prosecution team investigating the aftermath of further Sidney Powell lies.

Update: DC USAO’s media person refused to clarify what Ballantine’s role is, even though it was publicly acknowledged in court.

We are not commenting on cases beyond what is stated or submitted to the Court. We have no comment in response to your question.

Update: Added links to William Ockham’s proof that Ballantine made the realteration of the McCabe notes.

Update: One more point on this. I am not claiming here that anyone at DOJ is deliberately trying to sabotage the January 6 investigation, just that putting someone who, less than a year ago, made multiple representations to a judge that could call into question her candor going forward could discredit the Proud Boys investigation. I think it possible that supervisors at DC USAO put her on the team because they urgently need resources and she was available (possibly newly so after the end of her TDY). I think it possible that supervisors at DC USAO who are also implicated in Barr’s politicization, perhaps more closely tied to the intervention in the Stone case, put her there with corrupt intent.

But it’s also important to understand that up until February 2020, she was viewed as a diligent, ruthless prosecutor. I presume she buckled under a great deal of pressure after that and found herself in a place where competing demands — her duty of candor to the Court and orders from superiors all the way up to the Attorney General — became increasingly impossible to square.

Importantly, Lisa Monaco’s chief deputy John Carlin, and probably Monaco herself, would know Ballantine from their past tenure in the National Security Division as that heretofore ruthless national security prosecutor. The only mainstream outlet that covered anything other than DOJ’s admission they had added post-its to the notes was Politico. And the instinct not to punish career employees like Ballantine would mean what she would have avoided any scrutiny with the transition. So her assignment to the case is not itself evidence of an attempt to sabotage the prosecution.

Carter Page Believed James Wolfe Was Ellen Nakashima’s Source Disclosing His FISA Application Less than a Month After the Story

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According to the Statement of Offense to which James Wolfe — the former Senate Intelligence Committee security official convicted of lying about his contacts with journalists — allocuted, Carter Page suspected Wolfe was the source for Ellen Nakashima’s story revealing Page had been targeted with a FISA order. When the former Trump campaign staffer wrote Nakashima to complain about the story less than four weeks after Washington Post published it, Page BCCed Wolfe. [Nakashima is Reporter #1 and Ali Watkins is Reporter #2.]

On May 8, 2017, MALE-1 emailed REPORTER #1 complaining about REPORTER #1’s reporting of him (MALE-1). According to the metadata recovered during the search of Wolfe’s email, Wolfe was blind-copied on that email by MALE-1.

That unexplained detail is important — albeit mystifying — background to two recent stories on leak investigations.

First, as reported last month, Nakashima was one of three journalists whose call records DOJ obtained last year.

The Trump Justice Department secretly obtained Washington Post journalists’ phone records and tried to obtain their email records over reporting they did in the early months of the Trump administration on Russia’s role in the 2016 election, according to government letters and officials.

In three separate letters dated May 3 and addressed to Post reporters Ellen Nakashima and Greg Miller, and former Post reporter Adam Entous, the Justice Department wrote they were “hereby notified that pursuant to legal process the United States Department of Justice received toll records associated with the following telephone numbers for the period from April 15, 2017 to July 31, 2017.” The letters listed work, home or cellphone numbers covering that three-and-a-half-month period.

The scope of the records obtained on the WaPo journalists last year started four days after the Page story, so while some May 11, 2017 emails between Nakashima and Wolfe would have been included in what got seized last year, any contacts prior to the FISA story would not have. And the public details on the prosecution of Wolfe show no sign that Nakashima’s records were obtained in that investigation (those of Ali Watkins, whom Wolfe was in a relationship, however, were). Indeed, the sentencing memo went out of its way to note that DOJ had not obtained deleted Signal texts from any journalists. “The government did not recover or otherwise obtain from any reporters’ communications devices or related records the content of any of these communications.”

That said, Nakashima’s reporting was targeted in two different leak investigations, covering sequential periods, three years apart.

It’s not clear how quickly the Page investigation focused on Wolfe. But it may have outside help. A CBP Agent unconnected to the FBI investigation grilled Watkins on her ties with Wolfe in June 2017.

The Sentencing Memorandum on Wolfe suggests the FBI came to focus on him — and excused their focus — after having learned of his affair with Watkins. They informed Richard Burr and Mark Warner, and obtained the first of several warrants to access his phone.

At the time the classified national security information about the FISA surveillance was published in the national media, defendant James A. Wolfe was the Director of Security for the SSCI. He was charged with safeguarding information furnished to the SSCI from throughout the United States Intelligence Community (“USIC”) to facilitate the SSCI’s critical oversight function. During the course of the investigation, the FBI learned that Wolfe had been involved in the logistical process for transporting the FISA materials from the Department of Justice for review at the SSCI. The FBI also discovered that Wolfe had been involved in a relationship with a reporter (referred to as REPORTER #2 in the Indictment and herein) that began as early as 2013, when REPORTER #2, then a college intern, published a series of articles containing highly sensitive U.S. government information. Between 2014 and 2017, Wolfe and REPORTER #2 exchanged tens of thousands of telephone calls and electronic messages. Also during this period, REPORTER #2 published dozens of news articles on national security matters that contained sensitive information related to the SSCI.

Upon realizing that Wolfe was engaged in conduct that appeared to the FBI to compromise his ability to fulfill his duties with respect to the handling of Executive Branch classified national security information as SSCI’s Director of Security, the FBI faced a dilemma. The FBI needed to conduct further investigation to determine whether Wolfe had disseminated classified information that had been entrusted to him over the past three decades in his role as SSCI Director of Security. To do that, the FBI would need more time to continue their investigation covertly. Typically, upon learning that an Executive Branch employee and Top Secret clearance holder had potentially been compromised in place – such as by engaging in a clandestine affair with a national security reporter – the FBI would routinely provide a “duty-to-warn” notification to the relevant USIC equity holder in order to allow the intelligence agencies to take mitigation measures to protect their national security equities. Here, given the sensitive separation of powers issue and the fact that the FISA was an FBI classified equity, the FBI determined that it would first conduct substantial additional investigation and monitoring of Wolfe’s activities. The FBI’s executive leadership also took the extraordinary mitigating step of limiting its initial notification of investigative findings to the ranking U.S. Senators who occupy the Chair and Vice Chair of the SSCI.2

The FBI obtained court authority to conduct a delayed-notice search warrant pursuant to 18 U.S.C. § 3103a(b), which allowed the FBI to image Wolfe’s smartphone in October 2017. This was conducted while Wolfe was in a meeting with the FBI in his role as SSCI Director of Security, ostensibly to discuss the FBI’s leak investigation of the classified FISA material that had been shared with the SSCI. That search uncovered additional evidence of Wolfe’s communications with REPORTER #2, but it did not yet reveal his encrypted communications with other reporters.

This process — as described by Jocelyn Ballantine and Tejpal Chawla, prosecutors involved in some of the other controversial subpoenas disclosed in the last month — is a useful lesson of how the government proceeded in a case that likely overlapped with the investigation into HPSCI that ended up seizing Swalwell and Schiff’s records. Given that Swalwell was targeted by a Chinese spy, it also suggests one excuse they may have used to obtain the records: by claiming it was a potential compromise.

Still, by the time FBI first informed Wolfe of the investigation, in October 2017, they had obtained his cell phone content showing that he was chatting up other journalists, in addition to Watkins — and indeed, he continued to share information on Page. By the time the FBI got Wolfe to perjure himself on a questionnaire about contacts with journalists in December 2017, they had presumably already searched Watkins’ emails going back years. Wolfe was removed from his position and stripped of clearance, making his indictment six months later only a matter of time.

All that said, the government never proved that Wolfe was the source for Nakashima. And Ballantine’s subpoena for HPSCI contacts, weeks later after FBI searched Wolfe’s phone, may have reflected a renewed attempt to pin the leak on someone, anyone (though it’s not clear whether investigators looked further than Congress, or even to Paul Ryan, who has been suspected of tipping Page off.

If the James Wolfe investigation reflects how they might have approached the HPSCI side, there’s one other alarming detail of this: The FBI alerted someone in Congress of the search, the Chair and Ranking Member of the Committee. But in HPSCI’s case, Schiff was the Ranking Member. Meaning it’s possible that, by targeting on Schiff, FBI gave itself a way to consult only with the Republican Chair of the Committee.

James Wolfe (and the investigation of Natalie Sours Edwards, who was sentenced to six months in prison last week) are an important lesson in leak investigations that serves as important background for Joe Biden’s promise that reporters won’t be targeted anymore. The way you conduct a leak investigation in this day and age is to seize the source’s phone, in part because that’s the only way to obtain Signal texts.

Timeline

March 2017: Exec Branch provides SSCI “the Classified Document,” which includes both Secret and Top Secret information, with details pertaining to Page classified as Secret.

March 2, 2017: James Comey briefs HPSCI on counterintelligence investigations, with a briefing to SSCI at almost the same time.

March 17, 2017: 82 text messages between Wolfe and Watkins.

April 3, 2017: Watkins confirms that Carter Page is Male-1.

April 11, 2017: WaPo reports FBI obtained FISA order on Carter Page.

June 2017: End date of five communications with Reporter #1 via Wolfe’s SSCI email.

June 2017: Using pretext of serving as a source, CBP agent Jeffrey Rambo grills Watkins about her travel with Wolfe.

October 2017: Wolfe offers up to be anonymous source for Reporter #4 on Signal.

October 16, 2017: Wolfe Signals Reporter #3 about Page’s subpoena.

October 17, 2017: NBC reports Carter Page subpoena.

October 24, 2017: Wolfe informs Reporter #3 of timing of Page’s testimony.

October 30, 2017: FBI informs James Wolfe of investigation.

November 15, 2017: 90 days before DOJ informs Ali Watkins they’ve seized her call records.

December 14, 2017: FBI approaches Watkins about Wolfe.

Prior to December 15, 2017 interview: Wolfe writes text message to Watkins about his support for her career.

December 15, 2017: FBI interviews Wolfe.

January 11, 2018: Second interview with Wolfe, after which FBI executes a Rule 41 warrant on his phone, discovering deleted Signal texts with other journalists.

February 6, 2018: Subpoena targeting Adam Schiff and others.

February 13, 2018: DOJ informs Watkins they’ve seized her call records.

June 6, 2018: Senate votes to make official records available to DOJ.

That the Chairman and Vice Chairman of the Senate Select Committee on Intelligence, acting jointly, are authorized to provide to the United States Department of Justice copies of Committee records sought in connection with a pending investigation arising out of allegations of the unauthorized disclosure of information, except concerning matters for which a privilege should be asserted.

June 7, 2018: Grand jury indicts Wolfe.

June 7, 2018: Richard Burr and Mark Warner release a statement:

We are troubled to hear of the charges filed against a former member of the Committee staff. While the charges do not appear to include anything related to the mishandling of classified information, the Committee takes this matter extremely seriously. We were made aware of the investigation late last year, and have fully cooperated with the Federal Bureau of Investigation and the Department of Justice since then. Working through Senate Legal Counsel, and as noted in a Senate Resolution, the Committee has made certain official records available to the Justice Department.

June 13, 2018: Wolfe arraigned in DC. His lawyers move to prohibit claims he leaked classified information.

In November, Emmet Sullivan Suggested He Might Not Be Done with DOJ and Mike Flynn

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I’d like to return to Judge Emmet Sullivan’s opinion dismissing the Mike Flynn case. This post was written at the time of the opinion.

As I noted at the time, Sullivan did several things in conjunction with the opinion.

The first thing he did was to strike some documents which the government had not authenticated in response to his order that they do so. That may be mere housekeeping, but at a time when it was effectively too late for the government to try to withdraw any of the other documents, it left those exhibits it had authenticated — with at times dodgy claims of authentication and in one case no claim (some Lisa Page and Peter Strzok texts, a significant portion of which were entirely off-topic, which the government admitted it had submitted for shits and giggles) — in his docket.

Then, he issued his order. In it, he granted one of the government’s two requests, to dismiss the case as moot. But in the same order, he denied the government’s motion to dismiss pursuant to Rule 48(a), denying it as moot.

This step may have more significance that most at first realized. That’s because by mooting DOJ’s effort to dismiss the prosecution pursuant to Rule 48(a), Sullivan refused to sanction the effort DOJ had been pursuing since May to undo the Flynn prosecution.

Once Sullivan issued the order mooting the case, DOJ was left with very little ground to further intervene, not least because they themselves declared the case moot.

Then Sullivan issued his opinion explaining how the case became moot. As I noted at the time, in the opinion he:

  • Affirmed the authority of a District Court to review whether a motion to dismiss serves the public good (but stopped short of doing so on mootness grounds)
  • Laid out evidence that the motion to dismiss was pretextual and corrupt (but stopped short of making that finding on mootness grounds)
  • Along the way, made judicial findings of fact regarding the propriety of the Mike Flynn investigation; effectively this was a ruling that the new reality Bill Barr attempted to create in Sullivan’s docket did not replace the prior reality DOJ had presented

I’ll elaborate on that below.

After having issued his opinion, Sullivan then denied as moot a number of other pending requests. With that order he mooted:

  • The government’s request that Flynn get a downward departure on sentencing
  • Flynn’s request to withdraw his guilty plea
  • Flynn’s request to dismiss the case based on a claim of prosecutorial misconduct
  • A Flynn request to force Covington & Burling to turn over an expansive set of documents, including their own internal discussions about ethics or about the case itself
  • A Flynn request to withdraw those three earlier requests
  • A really belated Flynn demand that Sullivan recuse from the case
  • Amicus John Gleeson’s request for clarification about what should happen given Flynn’s petition for a writ of mandamus
  • Flynn’s demand that Judge Sullivan strike the communications from Peter Strzok and Andrew McCabe about the alterations made to their documents submitted in the docket

Mostly, this is housekeeping, the mooting of all pending issues in the case. Except it has the effect of removing any claim that Flynn might have an interest in Sullivan’s recusal. Indeed, that’s a step Sullivan noted explicitly in the opinion.

In that motion Mr. Flynn requested, among other things, that the Court grant the government’s motion to dismiss pursuant to Rule 48(a) and that, upon dismissal of the case, the Court recuse itself from further proceedings. After the Court dismisses the case as moot pursuant to the presidential pardon, the Court will deny the motion for recusal as moot.

By mooting the motion to strike, Sullivan similarly moved any claim Flynn had in the Strzok and McCabe interventions going forward.

Of particular interest, that means that not only do DOJ’s dubiously authenticated documents remain before Sullivan, but so does the correspondence from Strzok and McCabe making it clear that their documents were altered (though their assertions that Jocelyn Ballantine lied to the court are not in the docket).

To sum up then: DOJ’s altered documents and evidence that they were altered remains before Sullivan, and any interest that DOJ or Flynn have in this docket — including a claim that Sullivan is biased and so must recuse — has been officially mooted.

With that background laid out, I want to look at a few more things that Sullivan did with his order.

  • Reaffirmed Flynn’s guilt as a legal question
  • Laid out the President’s interest in the pardon
  • Set the operative time of Flynn’s pardon
  • Did not address Flynn’s false statements before him
  • Observed the scope of the pardon but agreed that it covered Flynn’s false statements crime

Reaffirmed Flynn’s guilt as a legal question

First, Sullivan made it clear in several different ways that Flynn’s guilty verdict remains.

In the section laying out the posture of the case, Sullivan described how Flynn pled guilty twice.

Under oath and with the advice of counsel, Mr. Flynn pled guilty to the crime on December 1, 2017.

[snip]

On November 30, 2017, Mr. Flynn entered into a plea agreement with the government upon the advice of counsel. See Plea Agreement, ECF No. 3 at 10. Judge Rudolph Contreras accepted Mr. Flynn’s guilty plea on December 1, 2017, finding that Mr. Flynn entered the plea knowingly, voluntarily, and intelligently with the advice of counsel.

[snip]

On December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a second time. Sentencing Hr’g Tr., ECF No. 103 at 5, 16. During that hearing, the Court extended the plea colloquy in view of Mr. Flynn’s statements in his sentencing memorandum, which raised questions as to whether Mr. Flynn sought to challenge the conditions of the FBI interview. See generally Def.’s Mem. in Aid of Sentencing, ECF No. 50 at 6-18. Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 FBI interview and the allegations of misconduct against FBI officials. Id. at 11-12. And Mr. Flynn declined the Court’s invitation for the appointment of independent counsel to advise him. Id. at 9-10.

He also noted that when Flynn moved to dismiss his guilty plea, DOJ never got as far as responding (he doesn’t note that, rather than doing so, they moved to dismiss the prosecution).

The government did not file a response to Mr. Flynn’s motions to withdraw his guilty pleas due to its incomplete review of Mr. Flynn’s former counsel’s productions relevant to Mr. Flynn’s claims of ineffective assistance of counsel, as well as a dispute between Mr. Flynn and his former counsel.

Then, in the section on the legal status of a pardon, Sullivan emphasized that accepting a pardon may be an admission of guilt. Note the emphasis is Judge Sullivan’s.

On the other hand, a pardon does not necessarily render “innocent” a defendant of any alleged violation of the law. Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a “confession” of guilt. See Burdick, 236 U.S. at 94 (“[A pardon] carries an imputation of guilt; acceptance a confession of it.”); see also United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may imply a confession of guilt.” (citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994)). As Chief Justice Marshall wrote, “[a] pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. 150, 150 (1833) (emphasis added). In other words, “a pardon does not blot out guilt or expunge a judgment of conviction.” In re North, 62 F.3d at 1437. Furthermore, a pardon cannot “erase a judgment of conviction, or its underlying legal and factual findings.” Arpaio, 2017 WL 4839072, at *1 (citing United States v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004)); but see Schaffer, 240 F.3d at 38 (vacating “all opinions, judgments, and verdicts of this court and the District Court” where “[f]inality was never reached on the legal question of [the defendant’s] guilt” (emphasis added)).

After citing the Arpaio precedent, where the corrupt sheriff tried to expunge his guilty status, Sullivan then cited the Schaffer precedent in the DC Circuit treating the question of a defendant’s guilt as a legal question, not a political one. Sullivan added emphasis to four things in this opinion. Two of them, appearing in this passage, focus on two circumstances that mean Flynn is still guilty of his crimes. By giving Flynn a pardon, Trump excused the consequences for his crimes, but he didn’t change the legal fact that Flynn was guilty, and Flynn’s own acceptance of the pardon imputes that he committed the crime.

Note, I don’t think Sullivan was making a general comment about pardons generally (and I also think it a mistake to read his citation to Burdick as a general comment about accepting pardons amounting to an admission of guilty; he instead seems to be saying it might be). He was making a comment about this one, the legal question before him. Sullivan issued a ruling, then, that circuit and Supreme Court precedent mean that Flynn’s guilty verdict remains and that by accepting a pardon, he confessed to his guilt.

Laid out Trump’s interest in the pardon

Before the sections in which Sullivan analyzes why DOJ’s claims in moving to dismiss the prosecution are bunk, Sullivan first described how interested Trump was in Flynn’s prosecution. Along the way, he notes Sidney Powell’s admission at a September hearing that she had spoken with Trump and asked Trump not to pardon Flynn.

For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id.

At the September 29, 2020 motion hearing, Mr. Flynn’s counsel, in response to the Court’s question, stated that she had, within weeks of the proceeding, provided the President with a brief update on the status of the litigation. Hr’g Tr., ECF No. 266 at 56:18-20. Counsel further stated that she requested that the President not issue a pardon. Id. at 56:23-24. However, the President has now pardoned Mr. Flynn for the actions that instigated this case, among other things. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s “running commentary,” many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President.” See, e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec. 28, 2017), https://www.nytimes.com/2017/12/28/us/politics/trumpinterview-excerpts.html) (reporting President Trump’s statement that he enjoys the “absolute right to do what I want to do with the Justice Department”).

Given this context, the new legal positions the government took in its Rule 48(a) motion and at the motion hearing raise questions regarding its motives in moving to dismiss.

That is, it was in light of Trump’s claimed “absolute right to do what [he wants with DOJ],” that Sullivan reviewed DOJ’s claimed excuses for blowing up the prosecution and found them pretextual.

Set the operative time of Flynn’s pardon

Perhaps most curiously, Sullivan went to some lengths to mark the precise time of Flynn’s pardon: November 25, 2020, at 4:08PM ET.

Rather than treating the filing of the notice of appeal or the appeal itself (the time of which is suspect) as operative, Sullivan instead treated Trump’s tweet announcing the pardon as definitive, going so far as including a legal basis to depend on Trump’s Tweets as operative.

On November 25, 2020, President Trump granted Mr. Flynn a “full and unconditional pardon” for: (1) “the charge of making false statements to Federal investigators,” in violation of 18 U.S.C. § 1001, as charged in the Information in this case; (2) “any and all possible offenses arising from the facts set forth in the Information and Statement of Offense” filed in this case “or that might arise, or be charged, claimed, or asserted, in connection with the proceedings” in this case; (3) “any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel appointed on May 17, 2017, including the initial Appointment Order No. 3915-2017 and subsequent memoranda regarding the Special Counsel’s investigatory authority”; and (4) “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings” in this District or in the United States District Court for the Eastern District of Virginia. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1; see also Donald Trump (@realDonaldTrump), Twitter (Nov. 25, 2020, 4:08 PM), https://twitter.com/realDonaldTrump/status/1331706255212228608.6

6 The Court takes judicial notice of President Trump’s tweet as the veracity of this statement “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017), vacated on other grounds, 138 S. Ct. 377 (2017).

Only after pointing to Trump’s tweet of 4:08PM on November 25, 2020 as the operative moment of Trump’s pardon of Flynn did Sullivan mention the filings in his docket as basis for the proof that Flynn had accepted the pardon.

Mr. Flynn accepted the pardon, and Mr. Flynn and the government subsequently moved to dismiss this case as moot. See Consent Mot. Dismiss, ECF No. 308 at 2.

I don’t know why Sullivan did this. But he did. He set a time — 4:08 PM ET on November 25, 2020 — when Trump’s pardon of Flynn went into effect, based on the legal authority of Trump’s Tweet, and then made it clear that after the time of the pardon, Flynn accepted it.

Did not address Flynn’s false statements before him

Almost as interesting as the way Sullivan set the precise time when Trump issued a pardon for Flynn is what Sullivan did with the lies Flynn told in his own court. As a reminder, Flynn submitted a declaration that materially conflicted with sworn statements he had made before two judges and the grand jury. When he appointed John Gleeson, Judge Sullivan asked Gleeson to review whether he should consider holding Flynn in criminal contempt. When he reviewed that in his history of the case, Sullivan stated that Gleeson had convinced him that holding Flynn in contempt would be an atypical way of dealing with the issue.

On May 13, 2020, the Court appointed John Gleeson (“Mr. Gleeson”) as amicus curiae to present arguments in opposition to the government’s Rule 48(a) motion and to address whether Mr. Flynn should be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401; Federal Rule of Criminal Procedure 42; the Court’s inherent authority; and any other applicable statutes, rules, or controlling law.3

3 The Court is persuaded by the arguments presented that issuing an Order to Show Cause would amount to an atypical action and so does not address this issue in this Memorandum Opinion.

Gleeson had favored taking Flynn’s further perjury into account at sentencing, but now Sullivan won’t be sentencing Flynn. DOJ had said that the proper way to deal with such perjury is to refer it to DOJ for prosecution.

Sullivan’s language here didn’t say he’s not going to deal with Flynn’s perjury; rather, he just said he’s not dealing with it in this particular opinion.

Observed the scope of the pardon but agreed that it covered the issues in this docket

That’s important for Sullivan’s discussion of the power of Trump’s pardon. Sullivan laid out the awesome scope of the pardon power. Before he did so, though, he first laid out the power of the courts to interpret the law, including the scope of the pardon power specifically, tying the pardon power to Marbury versus Madison.

Though the Constitution confers the pardoning power on the President generally, it is well-established that “the judiciary has served as the supreme interpreter of the scope of the constitutional powers since Marbury v. Madison.” See William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 506 (1977); see also Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

[snip]

Thus, the Supreme Court in Marbury laid the foundation for the view that the President has a “general, unqualified grant of power to pardon offenses against the United States.” The Laura, 114 U.S. 411, 413 (1885).

Among the judgements he relies on showing the Supreme Court exercising judicial review and finding the pardon power unlimited, however, Sullivan cites language noting that pardons can only be issued after their commission.

In view of the principles set out in Marbury, the Supreme Court thereafter instructed that the President’s power to pardon is “granted without limit.” United States v. Klein, 80 U.S. 128, 147 (1871); see also Ex parte Garland, 71 U.S. 333, 380 (1866) (“This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”). The “executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.” Ex parte Grossman, 267 U.S. 87, 120 (1925) (emphasis added).

This was the third of four things to which Sullivan added emphasis in his opinion — that according to Supreme Court precedent, pardons can only issue after the offense has been committed.

And that’s interesting, in an opinion that marked the exact moment when this pardon was granted, in the language Sullivan used to apply the precedent he reviews on pardons to the pardon before him.

Sullivan observed that the pardon itself is very broad, observing as I did that the pardon “purports to apply to “any and all possible offenses” that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation.” But then Sullivan said the only decision before him was just the crime Flynn twice pled guilty to.

Here, the scope of the pardon is extraordinarily broad – it applies not only to the false statements offense to which Mr. Flynn twice pled guilty in this case, but also purports to apply to “any and all possible offenses” that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. However, the Court need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case. Mr. Flynn has accepted President Trump’s “full and unconditional pardon.” See Consent Mot. Dismiss, ECF No. 308 at 2. The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot. However, the pardon “does not, standing alone, render [Mr. Flynn] innocent of the alleged violation” of 18 U.S.C. § 1001(a)(2). Schaffer, 240 F.3d at 38. Accordingly, in view of the Supreme Court’s expansive view of the presidential pardon power, the Court grants the consent motion to dismiss this case as moot. See, e.g., id. [my emphasis]

Of course, that’s not all that DOJ had asserted were before Sullivan. It had also included the Turkey FARA crimes (which were a benefit of Flynn’s guilty plea) and the lies Flynn told before Sullivan and the grand jury. This opinion is silent on the pardon’s applicability to them, even though both crimes were committed before the pardon.

The language at the end here may become important in the future. As noted above, DOJ had asked Sullivan both to dismiss the prosecution and to moot it. Sullivan did only the latter, asserting that the pardon only extends to political questions, not legal ones. Even as he made that distinction, he reemphasized that Flynn was guilty of the crime he was being pardoned for.

Whatever else he did, Sullivan made it clear that, under pressure from the President, DOJ went to some lengths to try to exonerate a guilty man.

Update, January 21: In a media lawsuit asking for the declassification of documents pertaining to Flynn’s sentencing as well as the one for his warrants, Judge Sullivan issued an order on Tuesday (the day before inauguration), for a status update on remaining sealed language to be submitted on January 26. I don’t expect much new to be declassified. There’s one passage about Flynn’s cooperation that DOJ might be able to unseal; given the focus of questions in Flynn’s early interviews, I wonder if it pertained to Flynn’s involvement in the fall 2016 Egyptian discussions that Mueller suspected ended up in a $10 million bribe, an investigation that was closed by Bill Barr since the last unsealing. But I do expect it will reveal whether Jocelyn Ballantine under whose discretion altered documents were submitted to the main Flynn docket, remains the AUSA in control of this case.

Update: This post seems rather quaint given how Mike Flynn called for martial law twice in the lead up to his QAnon followers attacking the Capitol. And as WaPo reported last night, Mike Flynn’s brother, Lieutenant General Charles Flynn, was part of the DOD call that responded slowly to deploying the National Guard as the insurgents overran the Capitol.

The Price of “Freedom”: What Mike Flynn Squandered in the Two Years He Would Have Served Probation

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Two years ago today, Mike Flynn went before Judge Emmet Sullivan to be sentenced. Had things gone as planned, he may well have been sentenced to two years of probation, meaning that — today — he would be a free man, a felon (though a felon still in the queue for a Trump pardon), but nevertheless a man who had paid his debt to society.

Things didn’t go as planned.

In the days before his sentencing, Flynn got cute by introducing details about the circumstances of his interview, details which he had known about when he pled guilty just a year before and certainly knew when he pled guilty again two years ago. Judge Sullivan may well have sentenced Flynn to a short sentence in any case — no more than a month, or more realistically the two weeks Papadopoulos got without any cooperation (in which case Flynn would still likely have been done with probation by inauguration). But he would likely have given great deference to the government support for a probation sentence had Flynn not complained about the way he was treated.

But having complained, Judge Sullivan required that DOJ share the documents Flynn had relied on, including Andrew McCabe’s notes setting up the interview, the 302 from his original interview, and a 302 of an interview from Peter Strzok (over time, DOJ would release serially less redacted copies, with further damaging details); together, those documents started to make it clear the degree to which Flynn was protecting Trump.

Sullivan put Flynn back under oath and made him swear that he knew it was a crime to lie but did it anyway.

And he expressed disgust for what Flynn had done.

You know, I’m going to take into consideration the 33 years of military service and sacrifice, and I’m going to take into consideration the substantial assistance of several ongoing — several ongoing investigations, but I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

[snip]

I’m not hiding my disgust, my disdain for this criminal offense.

When Flynn got cute, I warned, “be careful of what you ask for.” I had no idea at the time how right I was. 

Consider what Flynn has lost in the two years he might have been serving probation, all in an attempt to avoid accountability for lying to protect Trump. He:

  • Replaced competent lawyers with incompetent TV grifters
  • Released evidence he lied to his lawyers doing the FARA filing
  • Consented to waive privilege so DOJ could find more proof he lied
  • Debunked a slew of conspiracy theories
  • Got really damning transcripts released
  • Served 708 days of supervised release
  • Joined a gang
  • Got one of his gang members prosecuted for death threats against Judge Sullivan
  • Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
  • Exposed his son to further prosecution
  • Exposed DOJ to further scrutiny
  • Proved Judge Sullivan’s point about selling the country out

Replaced competent lawyers with incompetent TV grifters

In June, Rob Kelner made official something that Sidney Powell has more recently revealed had happened earlier: Flynn replaced the very competent Covington & Burling (who, records would later show, had written off millions of dollars of work they did as the FARA investigation turned into a prosecution) for Sidney Powell.

This was a mistake.

Along the way, Powell made several errors of procedure which would have been important if she had a case. For example, Powell introduced a motion to dismiss in her purported Brady claim, somewhat mooting the claim for when she raised it again the next year. Powell did not object to Judge Sullivan’s response to the motion to dismiss in timely fashion. Powell never moved to recuse Sullivan until September 2020, effectively waiving accusations she floated throughout the process. These were all procedural issues that, even if her argument were sound, she’d also have to get correct, which she did not.

She also did a number of things that Sullivan found to be unethical, including misciting things and the initial letter to Barr (though he did not sanction her).

Most insanely, Powell had Flynn submit a sworn declaration that materially conflicted with his two earlier guilty allocutions as well as his EDVA grand jury testimony. Effectively, to beat a false statements charge he might have gotten probation for, Powell had Flynn perjure himself.

As this post makes clear, Powell got Flynn less than nothing for his troubles. In early January, after twice delaying to get the requisite approvals from Bill Barr’s DOJ, prosecutors called for prison time, noting that Flynn had disclaimed his guilty plea and blown up his cooperation.

Worse, after the way Powell went nuclear on Covington, accusing them of incompetence and ethical failures, no sane attorneys would represent Flynn going forward. If he gets back into legal trouble, he’ll be stuck with someone whose approach to lawyering amounts to propaganda rather than sound legal advice. Without the bailout of a pardon, then, things could work out far worse going forward.

Released evidence he lied to his lawyers doing the FARA filing

Immediately after replacing Kelner, Flynn’s lawyers tried to use Judge Anthony Trenga’s rulings from EDVA (which were premised on moves DOJ had to take after Flynn reneged on his prior testimony) to suggest the whole thing was a set-up. Even in her first submission, Sidney Powell was making demonstrably misleading claims. Importantly, some of the evidence she submitted — particularly with respect to the purpose of an election day op-ed Flynn published under his own name — proved that Flynn lied to his lawyers. For example, Powell submitted evidence to both dockets showing Flynn had claimed, to his Covington lawyers, to have written the op-ed published on election day to help Trump, when in fact he had instead pasted his name on it to serve the government of Turkey.

Consented to waive privilege so DOJ could find more proof he lied

Starting in fall 2019 and then doubling down after DOJ called for prison time, Powell started accusing Covington & Burling of having an unwaivable conflict. DOJ provided documentation that Flynn had been alerted to the possible conflict, but waived it. Flynn provided more evidence that DOJ had gotten that waiver. Flynn provided evidence that Covington not only told him, repeatedly, about the potential conflict, but arranged to have another lawyer he could consult about it. But still Powell persisted in accusing Covington of setting Mike Flynn up for a fall.

In response, DOJ requested and got Flynn to waive attorney-client privilege so DOJ could show more evidence than they already had that Flynn lied to his lawyers in preparation of the FARA filing. DOJ was about to submit their first collection of this proof to the docket when Barr moved to dismiss the prosecution.

But that evidence remains at DOJ and the limits on the waiver — basically prohibiting its use against Flynn — don’t cover its use for a retrial of Bijan Kian (possibly with Flynn’s son added). Indeed, Judge Trenga already approved a limited waiver of privilege for the first trial. While DOJ would have to request to use this information in such a trial, it has possession of it and knows what it includes.

Debunked a slew of conspiracy theories

The first thing Sidney Powell did after she fully took over the case was, in the guise of accusing DOJ of failing to comply with Judge Sullivan’s standing Brady order, accuse DOJ of withholding material information. The vast majority of these claims were conspiracy theories with no more basis than Powell’s bullshit claims that dead Hugo Chavez stole the election for Joe Biden. They include claims that:

  • A meeting between Bruce Ohr and Andrew Weissmann harmed her client, who was investigated by none of them
  • Nellie Ohr had any role in Flynn’s prosecution
  • Reporting from Stefan Halper was key to the predication of an investigation into Flynn, including that an allegation Svetlana Lokhova honey trapped him
  • A claim that Joseph Mifsud was at the RT Gala Flynn was paid to attend
  • Section 704b spying that Mike Flynn supervised briefly had instead been focused on him
  • A claim, repeatedly reported in frothy right propaganda, that McCabe had said, “First we fuck Flynn, then we fuck Trump”
  • A claim there was an original 302 that didn’t match every other document in the case

This might be thought of as a reverse subpoena to DOJ — and it matched a letter Powell sent Bill Barr, which prosecutors shared with Sullivan in their response (and which he’d return to after Barr attempted to blow up the prosecution altogether). Much of the material has been released in the last year. It doesn’t say what she imagined it would say, and much of it directly debunked her conspiracy theories.

Along with these conspiracy theories, Powell made false claims about the proceedings before Sullivan, claiming Brandon Van Grack never provided the damning texts between Peter Strzok and Lisa Page, that summaries Judge Sullivan had approved were inadequate,

Both DOJ and Sullivan himself mapped out each alleged lie and showed where it appeared in the 302s. DOJ also submitted all the 302s, to show they never wavered in their content. Much later, DOJ submitted notes from a meeting shortly after the interview, showing Strzok described the interview just as it appeared in notes and all copies of the 302.

Of particular import, between Flynn’s team and DOJ, they released various filings showing how diligently DOJ had investigated the “Fuck Flynn, fuck Trump” allegation, including a statement from Strzok and a 302 from Lisa Page, as well as allegations that McCabe pressured agents to alter the 302 (with a 302, presumably of Pientka, debunking that claim). Flynn even produced evidence that Flynn knew of the allegation almost a year before he waived any concerns with it.

With regards to the Halper claim, DOJ submitted the opening EC into Flynn, showing that Lokhova was not mentioned at all. Flynn ultimately submitted the draft closing communication from the file which showed Bill Barnett — a pro-Trump agent who was skeptical of many parts of the investigation into Flynn — only got the Lokhova allegation later in 2016, and he dismissed it without much investigation.

Got really damning transcripts released

At several different points in the process, the government released transcripts it otherwise might not have. In the wake of the Mueller Report release, for example, Judge Sullivan ordered the government to release a transcript and audio of John Dowd calling Rob Kelner to pressure him to keep providing information regarding the Flynn interviews.

With their revised sentencing memo, prosecutors submitted Flynn’s grand jury testimony from EDVA (along with supporting exhibits), where he testified under oath that he always knew the Turkish government was his client.

Separate from this docket, but part of the same effort to discredit the Mike Flynn prosecution, the government released the transcripts of Flynn’s calls with Kislyak. They’re damning. They show Flynn kept making asks of Kislyak (including in response to sanctions), was easily manipulated by the Russian Ambassador, and tacitly agreed that Russia and the Trump Administration were on the same side against the US government. Importantly, the transcripts also show that Trump knew of the calls between Flynn and Kislyak (and subsequently released documents show that Flynn was with Trump for the one transcript DOJ has not yet released. These would never in a million years have been released normally.

Now, they may be a means of holding Trump accountable in the future. These transcripts now become admissible. The Mueller Report conclusion that there was some evidence Trump knew of Flynn’s calls but not enough to charge was probably based on the reality that DOJ would never submit such transcripts at trial (and indeed DOJ refused to share them with Judge Sullivan when he first asked). But now that they’re public, they would be fully available in any proceeding against Trump or Flynn going forward.

Served 708 days of supervised release

Had Flynn been sentenced to two years of probation, as was a real possibility, he would have served 731 of supervised release. As it was, Flynn served 708 days under release conditions, conditions Sullivan made stricter after the aborted sentencing hearing once he realized Flynn had gotten special treatment (though he relaxed those conditions after some months). The better part of this delay in Flynn’s period of supervised released was caused by Flynn himself. 

So effectively, Flynn served most of the sentence he would have served had he not blown up his cooperation deal, with nothing to gain from it besides a pardon of desperation he might have gotten anyway.

Joined a gang

Over the 18 months Flynn was represented by Sidney Powell, conspiracy theorists fed his ego and he fed their conspiracies. QAnon increasingly fed support for Flynn and at one point Powell even lifted claims directly from QAnon Twitter to submit in a filing.

On the Fourth of July of this year, Flynn formally pledged allegiance to QAnon.

In May — that is, before Flynn formally pledged allegiance to QAnon — the FBI released a bulletin warning that QAnon, along other conspiracy peddlers, had become a domestic terrorist threat.

Got one of his gang members prosecuted for death threats against a judge

Before Flynn joined that gang, but significantly as a result of his fostering it, a member of QAnon took action on Flynn’s behalf, calling in death threats against Judge Sullivan and his staffers.

We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a fuck who you are. Back out of this bullshit before it’s too late, or we’ll start cutting down your staff. This is not a threat. This is a promise

Frank Caporusso was charged in August. In October he was ordered held without bail. He appears set to plead guilty on January 19.

Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred

And with his two years of effort, Mike Flynn has gotten none of the exoneration he was seeking.

In a 92-page opinion last year, Judge Sullivan affirmed that Flynn’s lies were material and that, “Mr. Flynn has failed to establish a single Brady violation.”

A sentencing memo approved by all levels of Bill Barr’s DOJ also ruled that Flynn’s lies 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.

In a filing in June, Jocelyn Ballantine laid out that Flynn had gotten the discovery required, and stated clearly that his claims of prosecutorial misconduct were unfounded.

Before Flynn’s 2017 guilty plea, the government provided Flynn with (1) the FBI report for Flynn’s January 24 interview; (2) notification that the DOJ Inspector General, in reviewing allegations regarding actions by the DOJ and FBI in advance of the 2016 election, had identified electronic communications between Strzok and Page that showed political bias that might constitute misconduct; (3) information that Flynn had a sure demeanor and did not give any indicators of deception during the January 24 interview; and (4) information that both of the interviewing agents had the impression at the time that Flynn was not lying or did not think he was lying.

The government subsequently provided over 25,000 pages of additional materials pursuant to this Court’s broad Standing Order, which it issues in every criminal case, requiring the government to produce “any evidence in its possession that is favorable to [the] defendant and material either to [his] guilt or punishment.” Doc. 20, at 2. The majority of those materials, over 21,000 pages of the government’s production, pertain to Flynn’s statements in his March 7, 2017 FARA filing, for which the government agreed not to prosecute him as part of the plea agreement. The remainder are disclosures related to Flynn’s January 24, 2017, statements to the FBI, and his many debriefings with the SCO.

The government disclosed approximately 25 pages of documents in April and May 2020 as the result of an independent review of this case by the United States Attorney for the Eastern District of Missouri. While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. [my emphasis]

An interview report DOJ submitted actually hid material evidence that the pro-Trump agent who pushed back against the investigation of Flynn for his Russian ties worked well with Brandon Van Grack, but effectively, even Bill Barr’s star witness refuted Sidney Powell’s claims of misconduct.

Finally, in Judge Sullivan’s order dismissing Flynn’s prosecution as moot, he made a number of findings of fact, effectively finding that nothing DOJ has been throwing at the wall since May changes Mike Flynn’s guilt.

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

Mike Flynn has spent two years trying to deny that he was guilty of lying to obstruct an investigation. The record remains that he did.

Exposed his son to further prosecution

As part of his claim to have been railroaded, Flynn accused Robert Mueller’s prosecutors of threatening his son. Documents that would have otherwise eventually been released (the warrants targeting Flynn) made it clear that his son was the first to claim legal exposure, threatening to plead the Fifth in July 2017 to avoid testifying about his work with his dad. Documents that Flynn submitted to the docket show that Mueller had an understanding, but pointedly avoided promising not to prosecute Jr.

Now that Flynn’s plea has been voided, Jr could hypothetically be added as a co-conspirator in any retrial of Bijan Kian, with Flynn Sr — who is immune from legal jeopardy — possibly forced to testify against his son.

I think Trump will do something to make sure this is unlikely. But the risk is out there that, after purportedly pleading guilty to save his son, Flynn will have made his son’s jeopardy worse.

Exposed DOJ to further scrutiny

DOJ’s excuses for trying to blow up Flynn’s prosecution were transparently bogus — and conflicted with each other. That, in and of itself, suggested DOJ was not entitled to the presumption of regularity.

But along the way, DOJ submitted a package of altered documents to the docket. That led Sullivan to require DOJ to certify everything they submitted — and then to insist after DOJ tried to dodge the order. DOJ stopped well short of certifying everything, and lied in the filing doing so. All those issues remain unresolved in Sullivan’s docket.

Proved Judge Sullivan’s point about selling his country out

Two years ago today, at the aborted sentencing hearing, Judge Sullivan observed (misstating when Flynn’s secret relationship with Turkey ended) that Flynn had “arguably” sold out the flag.

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that.

In the three weeks since Flynn was pardoned, he has done just that, twice called on Trump to use the military to rerun a vote that might keep Trump in power.

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

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

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

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

Make Trump name Flynn’s crimes

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

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

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

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

Trump won’t show, of course.

Until he is made to, after January 20th.

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

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

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

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

They won’t show, of course.

Until they are made to, after January 20th.

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

Force DOJ to explain what went into the altered documents

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

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

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

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

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

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

Identify who wrote the pardon

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

Judge Sullivan should identify everyone who had a role.

[Fourth item added after the original post.]

Mike Flynn’s “Wiped” Phone

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Back in October, I noted that Chuck Grassley and Ron Johnson had written a 285-page report complaining that the FBI had obtained records from the GSA as part of the Mueller investigation. I further pointed out that one of their central complaints, that the FBI hadn’t obtained a warrant, was almost certainly refuted by the public record.

[T]he craziest thing is how the report confesses that they are unaware of any legal process for these files.

Although the FBI’s August 30, 2017 cover email referenced applying for a search warrant, the Committees are aware of only one court-ordered disclosure of records, specifically, information related to the transition records of Lt. Gen. Flynn, K.T. McFarland, Michael Flynn’s son, and Daniel Gelbinovich.128

128 Order, In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) Directed at Google Related to [the transition email accounts for those four individuals], 1:17-mc-2005 (D.D.C. Aug. 18, 2017) [GSA004400- 4404] (ordering the disclosure of customer/subscriber information but not content).

At one level, they’re being coy in that they claim to be interested in court-ordered disclosure. A document recently released via the Jeffrey Jensen review reveals that in February 2017, star witness and pro-Trump FBI Agent was obtaining some of this information using NSLs. Another document explains why, too: because one of the first things FBI had to do to understand why Flynn had lied to them was to determine if he was coordinating his story with those at Mar-a-Lago.

The lie that he didn’t even know Obama had imposed sanctions was not one of Flynn’s charged lies, but it was his most damning. He lied to hide that he had consulted with Mar-a-Lago before picking up a phone and secretly undermining sanctions in “collusion” with Russia.

Crazier still, Chuck and Ron didn’t go to the first place one should go to understand how legal process worked, the publicly released Mueller warrants. The warrant to access the devices and email of at least the original nine (plus one other person) is right there in the docket.

GSA transferred the requested records to the FBI, but FBI didn’t access them until it had a warrant.

In other words, this 285-page report is effectively a confession from Chuck and Ron that two Committee Chairs and a whole slew of staffers can’t figure out how to read the public record.

Perhaps not coincidentally, the very same day Grassley and Johnson released their report, the government submitted its proposed redactions in the Mike Flynn warrants that Flynn’s attorneys had been stalling on. Those finally got released on November 10. Two of the warrants prove I was correct.

An August 25, 2017 warrant obtaining the GSA emails and device content of Mike Flynn, KT McFarland, and Daniel Gelbinovich explains,

As described below, each of the Target Email Accounts and Target Devices was provided by the General Services Administration (GSA) to one of three members of then-President Elect Donald J. Trump’s transition team after the 2016 presidential election: MICHAEL T. FLYNN, Kathleen T. McFarland, and [Gelbinovich]. At the FBI’s request, the GSA provided the Target Email Accounts and Target Devices to the FBI, which is maintaining them at the FBI’s Washington Field Office located at 601 4th Street NW, Washington, D.C., 20535. While the FBI might already have all necessary authority to examine the property, I seek this additional warrant out of an abundance of caution to be certain that an examination of the property will comply with the Fourth Amendment and other laws.

Much later, the affidavit addresses another concern raised by the Senate report, that the devices had been preserved improperly. Not true.

Like Peter Strzok and Lisa Page’s cell phones, they were wiped.

Information provided by the GSA indicates that the Target Devices were “wiped” after they were returned to GSA following the transition period.

They were wiped even though there was an active criminal investigation into Flynn.

A September 27, 2017 warrant for the emails and devices of Keith Kellogg, Sarah Flaherty, Sean Spicer, Reince Priebus, and Jared Kushner explains further.

Based on information provided by the GSA, when email accounts and devices including the Transition Team Email Accounts and Subject Devices were issued to members of the Transition Team, recipients were required to certify that the “Government property” they had received was being provided “in connection with [their] role with the President-elect/Eligible Candidate Transition Team”; that it needed to be returned when they were no longer working for the Transition Team; and that they agreed to abide by the IT Acceptable Use Policy. In addition, the laptop computers issued by GSA to members of the Transition Team included a visible banner upon turning on the computers that stated: “This is a U.S. General Services Administration Federal Government computer system that is FOR OFFICIAL USE ONLY. By accessing and using this computer you are consenting to monitoring, recording, auditing and information retrieval for law enforcement and other purposes. Therefore, no expectation of privacy is to be assumed.” [emphasis added)

Curiously, this warrant reveals that not all of these phones were wiped.

Information provided by the GSA indicates that some of the Subject Devices were “wiped” after they were returned to the GSA following the transition period.

If Mike Flynn’s phone (along with KT McFarland’s) was wiped, but those of other senior officials were not, even though the White House had learned of a criminal investigation into Flynn in the earliest days of the Administration, it would suggest that the most damning phones may have been selectively wiped.

I’ll describe in a follow-up some of the damning details that wiping the phones might have attempted to hide.