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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.]

Lindsey Graham Responds to News of Potential Ongoing Crime by Promising to Ignore It

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As I have been laying out, there is growing evidence that when DOJ added dates (a misleadingly incorrect one in at least one case) to Peter Strzok and Andrew McCabe notes, they altered the documents in some other ways. At the very least, they redacted protection order footers in the first documents shared with Sidney Powell, but there appear to be other irregularities in the McCabe notes, irregularities that may be far more serious.

And that’s before you get to DOJ’s claims that:

  • They didn’t know the date of the January 5, 2017 meeting (even though documents in the docket make that date clear)
  • The Bill Barnett “report” was a 302
  • Lawyers for Peter Strzok and Andrew McCabe had affirmed there were no (other) alterations to their clients’ notes

Those are all false, and the last one is fairly demonstrably maliciously false.

I’ve been trying to chase down places where original versions of the Andrew McCabe notes might exist, to compare with what got released in the docket. In addition to DOJ IG (which might have the notes in investigative files relating to the Carter Page investigation), I figured the Senate Judiciary Committee should have a copy.

After all, McCabe had been scheduled to testify on October 6, before he canceled on account of the GOP COVID cluster.

So I called the committee spox, Taylor Reidy, asking if they had copies of McCabe’s notes, since I wanted to use them to see whether FBI had committed a crime. She (credibly) claimed not to know about DOJ altering official documents, given the mad rush to confirm Amy Coney Barrett. So I sent her information to help her out.

Thanks for seeing if you can chase down the copies of these documents the Committee has received.

Basically, in some documents shared with Sidney Powell and then loaded to the docket in the Mike Flynn case, FBI had added (incorrect, in at least one case) dates to some Peter Strzok and Andrew McCabe notes, which they subsequently admitted to the court, stating that the alteration was unintentional.

https://www.politico.com/news/2020/10/07/doj-altered-flynn-document-427280

But it’s now clear that the FBI also removed the “protection order” footers in those documents as well (and have restored them in the re-altered documents).

There are a number of other irregularities with the McCabe notes, including that it doesn’t have a declassification stamp, even though the notes talk about Worldwide Threats hearing prep.

So I’m wondering if SJC could release the version of the notes the Committee received so we can understand what those notes originally looked like.

As I know from following the Crossfire Hurricane investigation closely, I’m know the Committee takes alterations of official documents very seriously.

I appreciate any help you can offer to clarify why these documents were altered.

I got no answer yesterday. I pinged her again today, mentioning that I thought Lindsey Graham’s disinterest in what might be a crime in progress newsworthy:

I’m circling back for comment on this.

I’m considering a post reporting on Chairman Graham’s disinterest in evidence that FBI has tampered with evidence to help Mike Flynn and would post it later today.

Thanks in advance.

Reidy responded to my question about DOJ’s current actions by stating that her boss is totally committed to continuing to review events that happened four years ago.

Thanks for your patience, Marcy.

The matter relates to pending litigation and is not something the committee would have access to.

Graham continues to pursue oversight related to the FBI’s handling of Crossfire Hurricane.

And while I followed up to clarify the seemingly shocking detail — that SJC intended to call McCabe as a witness without obtaining any of his records! — it appears to be the case that DOJ didn’t even share those documents with SJC.

I tried again, noting that she hadn’t answered the question I asked.

To clarify, even though you had prepared to have Andrew McCabe testify this month, you intended to do so without his records?

Also, would you like to issue a statement about FBI’s altering documents in the month of September 2020, which is entirely unrelated to the Crossfire Hurricane investigation, and what I asked about? Or does Chairman Graham not intend to exercise oversight over ongoing misconduct happening right now? To clarify, because this will be clear in any post, I’m asking whether Chairman Graham, having been informed of a potential crime happening as we speak on a matter that he has direct oversight over, is going to do anything about it?

I’ve had no response, from which I guess it is fair to conclude that former JAG Officer Lindsey Graham is going to do nothing about what might be a crime in progress.

FBI, for what it’s worth, yesterday referred my questions about why Executive Assistant Director John Brown certified what was almost certainly a classified document for release that lacked any declassification stamp as authentic to DC’s US Attorney’s Office.

I asked again if FBI had comment about the further alterations exhibited in the McCabe document, but got no answer there, either (I’m wondering what will happen if I report that FBI is doctoring documents to the FBI tip line).

It’s really weird that all these people who are supposed to guard the rule of law in this country are so disinterested in what might be a crime in progress.

Update: After I posted, the FBI reiterated that they still want me to ask DOJ why their EAD certified what appears to be a formerly classified document that lacks a declassification stamp.

We are still referring you to DOJ since this pertains to ongoing litigation.

I’m asking again for reference to what policies in question EAD Brown just certified to.