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  1. #391

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    Quote Originally Posted by ponchi101 View Post
    Those guidelines are truly worthless.
    A woman who enrolled her child in a better school district was sentenced to five years...
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  2. #392

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    Megan Mineiro @MMineiro_CNS
    BREAKING: Judge Amy Berman Jackson has denied the motion from Roger Stone to disqualify her from presiding over his case, stating that the record back to Jan 2019 shows she took each issue he raised seriously and that recusal is not warranted.
    @CourthouseNews







    Adam Klasfeld@KlasfeldReports

    ABJ, wasting no time and mincing no words:

    “[T]he pleading appears to be nothing more than an attempt to use the court’s docket to disseminate a statement for public consumption that had the words ‘judge’ and ‘biased’ in it.”
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  3. #393

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    May 13, 2020 / by emptywheel

    THE LEGAL POSTURE OF THE FLYNN CASE: EMMET SULLIVAN HAS UP TO SIX PENDING DECISIONS, NOT ONE

    Partly as a public service (the vast majority of people who are commenting on DOJ’s actions seem to be unfamiliar with the docket) and partly to set up a post I will do attempting to explain why Billy Barr did something as aggressive as he did last week, I wanted to lay out where all the moving pieces in Mike Flynn’s case stand.

    Flynn blows up a probation sentencing with mixed claims about his prosecution
    Prosecutors first started moving towards sentencing Flynn in June 2018; it’s clear the investigation was still ongoing but they asked to have Flynn’s presentencing report filed so they could move quickly after that. We now know that this was days after Flynn testified to the grand jury in the Turkish influence peddling case. There were reports Flynn was anxious to be sentenced so he could start earning a living again and in this time period, he registered to start influence peddling again, before his lawyers got him to claim that was just a mistake. On September 17, 2018, prosecutors said they were ready to move towards sentencing and asked for a date starting in November, after the midterms. The hearing ultimately got scheduled for December 18, 2018, after Jeff Sessions had been fired and Trump had announced he would nominate Bill Barr to be Attorney General (he didn’t actually send the nomination to the Senate until January 3, 2019, for reasons that likely have to do with Matt Whitaker’s Vacancy Reform Act status).

    At that point, prosecutors recommended a sentence within guidelines and a downward departure, which is consistent with probation. Had Flynn left well enough alone, he would have gotten a year of probation and he’d be free and clear of the justice system by now.

    He didn’t leave well enough alone. He got cute, claiming to accept guilt but at the same time floating the first of his complaints about being perjury trapped by mean old FBI agents. In response, not only did Judge Emmet Sullivan release the documents that revealed Flynn lies were worse than known, but he put Flynn under oath, both to reallocute his guilty plea, but also to swear that he didn’t think the circumstances of his interview made him any less guilty. After Sullivan made it clear that if he sentenced Flynn that day, he’d give him prison time, Flynn decided to wait until he was done cooperating after testifying at his partner Bijan Kian’s trial.

    On February 14, 2019, the day Billy Barr was confirmed, Flynn sent a tweet suggesting “the eagle had landed” to Matt Gaetz, whose assaults on the Mueller investigation he had previously cheered in 2018.

    After Barr was confirmed, Mueller quickly moved to write up his report, which was completed on March 22 and released on April 19, 2019. Mueller did not close his office, however, until May 29, when he gave a hasty press conference even as the final outstanding piece of evidence — Roger Stone aide, Andrew Miller’s testimony — came in.

    When Mueller testified before Congress two months later on July 24, the most newsworthy thing he said was that FBI was still investigating the counterintelligence impact of Mike Flynn’s lies.

    [Congressman Raja] KRISHNAMOORTHI: For example, you successfully charged former National Security Advisor Michael Flynn of lying to federal agents about this conversations with Russian officials, correct?

    MUELLER: Correct.

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

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

    KRISHNAMOORTHI: Currently?

    MUELLER: Currently.

    Flynn replaces Covington for Powell and Blows Up the Bijan Kian Trial

    Exactly a week later, Flynn replaced his competent attorney, Rob Kelner, with Fox News firebreather, Sidney Powell, who moved immediately to collaborate with Bill Barr to undermine his prosecution.

    In late June, Flynn started reneging on the testimony he provided in the Kian trial. As a result, the government tried to change their plan for the prosecution, attempting to admit Flynn’s prior testimony as a co-conspriator of unregistered foreign agents (who were charged under 18 USC 951, not just as lobbyists). Flynn intervened to fight that (not least, because it would completely doom any effort to avoid prison), blaming Kelner for making him submit a false FARA declaration even while submitting evidence actually showing that Flynn misled Kelner during the filing process. The move predictably helped Kian, as those events were key in Judge Anthony Trenga’s decision to throw out his conviction (which is currently being appealed, but which I expect DOJ to try to blow up in a further attempt to protect Flynn), but it also started a series of claims from Flynn that directly conflicted with his past sworn statements.

    Sullivan, noting what was happening over in EDVA, asked the sides to weigh in, which is how Flynn’s team first started making claims in Sullivan’s court that the government, not Flynn, had reneged, all while submitting evidence showing the contrary.

    Which is to say, even before Powell took a single action in the Flynn case, Flynn had created further exposure for himself.

    As part of a Brady motion, Flynn moves to dismiss the prosecution

    The first legal step Sidney Powell took was to submit a motion to compel Brady material. The first filing, on August 30, made no specific request (though did demand more classified information on behalf of Flynn, who of course had confessed to secretly working for a foreign government during the campaign). Powell also asked for more time. Days after submitting that, however, Powell and her colleagues demanded security clearances. On September 11, a more detailed motion was unsealed. That motion included a long list of demands, many based on wild conspiracy theories; the list largely tracked the one Powell had sent to Barr three months earlier, though she generally moderated her language and added a number of requests pertaining to the Turkish investigation that weren’t included in her Barr letter.

    Many of these items are among those the government relied on in its motion to dismiss last week, proving the documents were in no way “new.”

    Almost two weeks later, Flynn cleaned up some problems in the original request.

    On October 1, prosecutors provided a timeline showing they had already produced everything they believed Flynn was entitled to. The same day, they responded to the Brady motion with a detailed response to each of Flynn’s demands, as well as two exhibits showing that this was part of a larger effort to undermine the Mueller investigation (which I addressed here).

    On October 15, Flynn demanded evidence from Joseph Mifsud’s phone — which further established Sidney Powell didn’t care about whether her demands related to her client, but also that she had an open channel of communication with Bill Barr about his Durham investigation.

    In Powell’s reply to the government, she included a new demand: that Judge Sullivan dismiss the case for misconduct based on precisely the claims made by DOJ last week.

    As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

    [snip]

    The FBI had no factual or legal basis for a criminal investigation, nor did they have a valid basis for a counter-intelligence investigation against an American citizen, and they all knew it. 11 Exs. 5, 6. The evidence the defense requests will eviscerate any factual basis for the plea and reveal conduct so outrageous—if there is not enough already—to mandate dismissal of this prosecution for egregious government misconduct.

    [snip]

    In its relentless pursuit of Mr. Flynn, the government became the architect of an injustice so egregious it is “repugnant to the American criminal system.” Russell, 411 U.S. at 428 (citations omitted). For these reasons and those in our original Motion and Brief in Support, this Court should compel the government to produce the evidence the defense requests in its full, unredacted form. Given the clear and convincing evidence herein, this Court should issue an order to show cause why the prosecutors should not be held in contempt; and should dismiss the entire prosecution for outrageous government misconduct.

    The government noted Powell’s new arguments and got permission to submit a surreply, in which they pointed out that Flynn was already in possession of the information he was using to argue for dismissal when he pled guilty the second time.

    Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant. See Hearing Transcript at 8-10, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). The defendant further affirmed, under oath, that he wished to proceed to sentencing because he was guilty of making false statements to the FBI. See id. at 16.

    [snip]

    Nor did law enforcement officials engage in “outrageous” conduct during the criminal investigation and prosecution of the defendant. On January 24, 2017, when the defendant lied in his interview, the FBI was engaged in a legitimate and significant investigation into whether individuals associated with the campaign of then-candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election. The defendant was not “ambushed” at the interview, and the interviewing agents certainly did not engage in “outrageous” conduct that undermines the fact that he lied. Reply at 1, 7. The documents produced by the government in discovery show that the FBI asked the defendant for permission to conduct the interview, informed the defendant that the questions would concern his “contacts with the Russian Ambassador to the United States,” interviewed the defendant in his own office, and afforded him multiple opportunities to correct his false statements by revisiting key questions. See, e.g., Memorandum of Andrew McCabe dated January 24, 2017 (Doc. 56-1) (“McCabe Memo”); Strzok 302.

    [snip]

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

    In a sur-surreply, Powell tried to back off having demanded that Sullivan dismiss the case, saying that her past arguments and the government’s response aren’t her real motion to dismiss.

    In conclusion, yes, the government engaged in conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct. See United States v. Russell, 411 U.S. 423, 428 (1973). However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an order compelling the government to produce the additional Brady evidence he has requested—in full and unredacted form—and an order to show cause why the government should not be held in contempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice. Mr. Flynn is entitled to discovery of the materials he has requested in these motions and briefs that will help him support such a motion.

    In Emmet Sullivan’s meticulous 92-page order issued in December denying Flynn’s Brady request, however, he addressed the request for dismissal, specifically distinguishing this case from that of Ted Stevens.

    Mr. Flynn’s requested relief is dismissal of this case. See Def.’s Reply, ECF No. 133 at 36; see also Def.’s Sur-Surreply, ECF No. 135 at 17. He seeks dismissal of the charges against him and the entire prosecution for government misconduct. E.g., Def.’s Reply, ECF No. 133 at 7, 23 n.15, 36; Def.’s SurSurreply, ECF No. 135 at 17. The government disagrees. See Gov’t’s Surreply, ECF No. 132 at 12-15. This case is not United States v. Theodore F. Stevens, Criminal Action No. 08–231(EGS), the case that Mr. Flynn relies on throughout his briefing. In that case, the Court granted the government’s motion to dismiss, and the government admitted that it had committed Brady violations and made misrepresentations to the Court. In re Special Proceedings, 825 F. Supp. 2d 203, 204 (D.D.C. 2011) (Sullivan, J.). Even if Mr. Flynn established a Brady violation in this case, dismissal would be unwarranted because “[t]he remedy for a Brady violation is retrial, not dismissal.” United States v. Borda, 941 F. Supp. 2d 16, 19 n.1 (D.D.C. 2013) (citing Pettiford, 627 F.3d at 1228). “[D]ismissal is appropriate only as a last resort, where no other remedy would cure prejudice against a defendant.” Pasha, 797 F.3d at 1139. [my emphasis]

    As the government noted when they responded to Flynn’s request for dismissal, he already had all the evidence on which he premised that demand when he pled guilty a second time in December 2018.

    In a sentencing memo, the government accounts for Flynn’s failed cooperation and refusal to admit guilt

    In the wake of Sullivan’s order, the parties moved towards sentencing in January. The government got two continuances before submitting their revised motion, one in December and another in January, to get all required approvals for their sentencing memo. That means prosecutors on the case went to great lengths to approve their recommendation for prison time.

    The factors enunciated in Section 3553(a) all favor the imposition of a sentence within the Guidelines range. The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

    I’ll return to that memo, but the key point is that Judge Sullivan specifically gave Bill Barr’s DOJ time to ensure that the chain of command approved their supplemental sentencing memo.

    Before Flynn responded to that revised recommendation, they asked for a continuance to allow them to withdraw Flynn’s guilty plea, specifically citing prosecutors’ recommendation for prison time.

    Because Flynn submitted his supplemental sentencing memo after beginning the process to withdraw his guilty plea, they were stuck arguing in it both that Flynn should get credit for admitting guilty but also arguing that he was not guilty.

    The government reply, submitted as Barr started the process to replace Jessie Liu, is the one that alerted everyone to the shenanigans that Barr was up to. Whereas the initial supplemental motion — which had been delayed twice to get approval — recommended prison time, this one reverted back to supporting probation, the position the government had adopted before Flynn had reneged on both his cooperation and his guilty.

    Flynn blames his guilty pleas on his Covington lawyers

    As noted, Flynn cited the recommendation for prison time in asking to withdraw his guilty plea(s). Flynn based his request to withdraw his guilty plea on a claim that his very competent Covington lawyers were both conflicted and incompetent. He then submitted what was originally called a supplement — which made no new arguments — which they subsequently corrected to note,

    1 This is not Mr. Flynn’s “Supplemental Motion to Withdraw for Alternative Additional Reasons” currently due to be filed on January 22, 2020, for which we have requested two additional days to complete and file.

    In response to a second request for more time on its filings, Judge Sullivan issued an order that reflects where he’ll likely go now: he raised the prospect of an evidentiary hearing to determine whether there is good cause to set aside his guilty plea.

    Mr. Flynn’s supplemental motion and the government’s response shall address the following: (1) the standard in this Circuit for a defendant seeking to withdraw a guilty plea before sentencing; and (2) the need for an evidentiary hearing where the parties would present all testimony and evidence concerning the issue of whether Mr. Flynn can show that there is good cause to set aside his guilty pleas, see United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995), including testimony from Mr. Flynn and other witnesses under oath, subject to cross-examination, to show any “fair and just reason” for this Court to grant his motion to withdraw, Fed. R. Crim. P. 11(d).

    From that moment forward, it became clear that Sullivan would put Flynn back under oath.

    On February 9, prosecutors made things still worse, by asking Sullivan to waive Covington’s attorney-client privilege with respect to Flynn so they could assist prosecutors in rebutting his claims that they were incompetent. From that point forward, it became clear that not only Flynn, but his very credible former lawyers, would be testifying about the prosecution.

    On January 29, just two days before Bill Barr would replace Jessie Liu with his flunky and around the same time he ordered Jeffrey Jensen to review the Flynn prosecution, Flynn submitted what he billed as his real supplemental motion to withdraw, doubling down on the claim that his former lawyers were responsible for his guilty pleas, he wasn’t.

    As I noted at the time, the motions in conjunction created new risks for Flynn: in particular, his motion to withdraw included a sworn declaration that conflicted with three past sworn statements from him:

    December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:

    He lied about several conversations with Sergey Kislyak about sanctions

    He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN

    He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract

    He was satisfied with the services his attorneys had provided

    No other threats or promises were made to him except what was in the plea agreement

    December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview. In his plea allocution, Flynn admitted:

    He lied about several conversations with Sergey Kislyak about sanctions

    He lied about several conversations with Kislyak about an attempt to undermine an Obama effort at the UN

    He lied about whether his company knew that it was working for the government of Turkey and about whether senior officials from Turkey were overseeing that contract

    He was satisfied with the services his attorneys had provided

    He did not want a Curcio counsel appointed to give him a second opinion on pleading guilty

    He did not want to challenge the circumstances of his January 24, 2017 interview and understood by pleading guilty he was giving up his right to do so permanently

    He did not want to withdraw his plea having learned that Peter Strzok and others were investigated for misconduct

    During his interview with the FBI, he was aware that lying to the FBI was a federal crime

    June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.

    January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.” Flynn claims he forgot about the substance of his conversations with the Russian Ambassador, rather than lied about them.
    To make things worse, as often happens with exhibits Sidney Powell introduces, the actual record undermined claims Flynn made. For example, Flynn included a document that showed Covington gave him more warnings about conflict than he admitted to in his declaration, thereby making it clear his sworn declaration didn’t match the record accompanying it.

    Flynn repeats his claim he was railroaded

    That same day Flynn submitted his most substantive motion to withdraw his guilty plea, January 29, he also submitted a motion to dismiss his prosecution. It was basically a repeat of the request made months earlier as part of the Brady request, pointing to irregularities in the Carter Page FISA application as the primary justification to make the motion anew.

    On February 12, prosecutors responded to that motion pointing out there was nothing new here. Flynn’s response was repetitive and included a misleading timeline full of claims that contradict claims they’ve made elsewhere. The motion ignored that Flynn waived these complaints when he pled guilty the second time.

    The government repeatedly claims that Mr. Flynn waived his right to constitutional protections when he pled guilty. ECF No. 169 at n.3. But, Mr. Flynn’s plea cannot stand, and the government cannot use it as both a shield for its misconduct and a sword to sentence Mr. Flynn. His plea was infected with constitutional error which rendered it neither knowing nor voluntary and in violation of Mr. Flynn’s Sixth Amendment rights. See ECF No. 162-2. As Mr. Flynn argued in his Motion to Withdraw Plea, ECF No. 151, even if it were a validly contracted plea, the government breached the contract the moment Mr. Van Grack filed the government’s supplemental sentencing memo which withdrew its motion for downward departure and its recommendation of probation. See ECF No. 150 at 3 (“In addition to asking the Court to credit the defendant with providing substantial assistance, the government recommended that the defendant receive credit for accepting responsibility. . . . [T]he government now withdraws both requests.”).

    As prosecutors prepare their Covington argument, Bill Barr prepared his “new” information

    As noted, on February 9, prosecutors took steps to be able to prove that Covington, in fact, gave Flynn exceptionally good advice. They asked for a series of delays while they did that. According to the schedule set by Judge Sullivan, prosecutors would have proposed a briefing schedule to lay all that out last Friday, possibly in a motion including some of the details from the 600 pages of evidence obtained from Covington that (the record already shows) would substantiate that Flynn gave them incorrect information for his FARA filing and repeatedly brushed off warnings about conflict.

    During the delay, Covington did find 6,000 new records on top of the 600,000 documents they had already provided. Given the Bates numbers of documents filed last week, there’s no reason to believe those exhibits were included in these newly discovered documents.

    As that was happening, prosecutor Jocelyn Ballantine handed over, drip-by-drip, the documents that Jeffrey Jensen “analyzed.”


    Beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation. The review by USA EDMO has involved the analysis of reports related to the investigation along with communications and notes by Federal Bureau of Investigation (“FBI”) personnel associated with the investigation.

    The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020 and are provided to you as a result of this ongoing review; additional documents may be forthcoming. These materials are covered by the Protective Order entered by the Court on February 21, 2018.

    None of this discovery correspondence said the documents were new to prosecutors, only that Jensen had reviewed them. They were, nevertheless, the documents that Timothy Shea claimed were “new” as his basis for flip-flopping on DOJ’s position on the case.

    Emmet Sullivan has six decisions to make, not just one

    Many, perhaps most, people who’ve commented in the last week have noted that Emmet Sullivan has the prerogative whether to accept DOJ’s motion or not. It’s true he has that authority. But he actually has up to six different decisions pending, as follows:

    Whether to accept or reject DOJ’s motion to dismiss

    If Sullivan accepts DOJ’s motion to dismiss, whether he does so with or without prejudice

    Whether to accept or reject Flynn’s motion to withdraw his pending withdraw of guilty plea, motion to dismiss, and waiver of privilege for Covington (to which DOJ has consented)

    Whether to hold an evidentiary hearing or ask for briefing on Flynn’s motion to withdraw

    Whether to accept or reject Flynn’s motion to dismiss his prosecution

    Whether and if so how to sentence Flynn based on fully briefed sentencing memoranda

    Sullivan would not get to most of these without, first, deciding what to do about DOJ’s motion to dismiss. And if he rejected DOJ’s motion to dismiss, he would obviously reject Flynn’s motion to dismiss, just like he already rejected that argument. Though if Sullivan does reject DOJ’s motion to dismiss, sentencing is fully briefed and he could move immediately to sentencing.

    Moreover, Flynn’s multiple conflicting sworn statements are before this court whether or not Sullivan rejects DOJ’s motion to dismiss. And he could reach that decision — or at least order briefing on the Covington evidence Flynn clearly wants to keep hidden — without (or before) weighing in on DOJ’s motion to dismiss.

    Which is likely one of the reasons Sullivan is taking his time before he issues the next scheduling order.

    Update: I should have put this quote on behalf of Chris Wray in several posts before this one. But basically, the FBI has already put it into the public record that the stuff DOJ claimed was “new” last week had already been reviewed by DOJ IG and John Durham’s inquiry.

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

    Copyright © 2018 emptywheel. All rights reserved.
    Originally Posted @ https://www.emptywheel.net/2020/05/1...-has-up-to-six
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  4. #394

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    emptywheel
    @emptywheel

    Replying to
    @emptywheel
    I have zero doubt that Barr's DOJ will ultimately try a writ of mandamus in this case. But you have to account for the record on perjury when you're trying to game how that'll work.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  5. #395

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    Megan Mineiro
    @MMineiro_CNS
    NEW: Retired judge John Gleeson is requesting oral argument on DOJ's motion to dismiss the Flynn prosecution.

    Appointed by the judge on the case, Gleeson suggests June 10 to file his first brief, asking for time to consider "important and complex issues."
    @CourthouseNews




    Gleeson's filing leaves it up to the court to set a schedule for briefings and oral argument.

    Reminder that Judge Sullivan tasked the retired federal judge/former federal prosecutor with addressing whether Flynn should be held in criminal contempt for perjury.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  6. #396

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    Zac Petkanas
    @Zac_Petkanas

    So let me get this straight:

    Trump's team thought it would help them to declassify an email from Susan Rice that indicated she was worried about providing classified information to a man who pleaded guilty to lying to the FBI about sketchy conversations with foreign adversaries
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  7. #397

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    Farhad Manjoo
    @fmanjoo

    I really would like an explainer of what trumpers see as troubling about the Rice email. The only troubling thing I see is the incoming NSA holding multiple calls with the Russian ambassador and possibly sharing sensitive info. Why are they publicizing this self own?

    Pwn All The Things
    @pwnallthethings

    It says "Obama" and "Susan Rice" and if you crop the doc out of context, circle their names in yellow highlighter, and rely on the base not actually reading documents or following technical jargon, that's enough for them to feed their base manufactured fake outrage.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  8. #398

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    Zoe Tillman
    @ZoeTillman

    New: The DC Circuit has given Judge Emmet Sullivan ten days to respond to Michael Flynn's request that the appeals court order Sullivan to grant DOJ's request to dismiss the Flynn prosecution



    This order comes soon after Sullivan set a briefing schedule to consider arguments for and against dismissing Flynn's case, with a hearing scheduled for mid-July

    New: We have a schedule for what's next in Michael Flynn's case. Briefing by the former federal judge tapped by Sullivan to weigh in, Flynn's lawyers, and any other amicus parties will conclude in early July.

    Mark your calendars: Arguments are set for July 16.

    Renato Mariotti @renato_mariotti

    This suggests that the Court of Appeals wants to closely review Judge Sullivan’s actions before amicus briefs are filed or argued.

    It’s a good sign for Flynn and his attorney, although it does not necessarily mean that they’ll get what they want.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  9. #399

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    More:

    Mike Scarcella@MikeScarcella

    Now: DC Circuit directs Judge Emmet Sullivan to respond to Mike Flynn's appeal challenging his refusal to immediately dismiss prosecution at Barr Justice Department's request..

    DC Circuit panel weighing Flynn's appeal: Neomi Rao (Trump), Karen LeCraft Henderson (George H.W.) and Robert Wilkins (Obama). DOJ must seek "leave of court" to dismiss a case. There is dispute over the scope of Sullivan's role
    emptywheel @emptywheel

    What a Coinkydink? Judge Rao gets another Trump case.

    Wasn't she recusing from Mueller cases?
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  10. #400

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    [UPDATED] Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper
    Updated with analysis of declassified Flynn-Kislyak transcripts

    by Marty Lederman
    May 29, 2020

    There’s been a great deal of discussion over the past couple of weeks about whether Judge Emmett Sullivan should, must, or cannot grant the Department of Justice’s recent motion to dismiss the single-count criminal information against Michael Flynn. Flynn pleaded guilty—twice—for knowingly and willfully making materially false statements to the FBI in a January 24, 2017 interview, in violation of 18 U.S.C. § 1001(a)(2). All that remains of the case before judgment is entered against Flynn is for the judge to impose a sentence.

    Judge Sullivan is scheduled to hear argument on DOJ’s motion to dismiss on July 16. In the meantime, Flynn himself has filed a writ of mandamus in the U.S. Court of Appeals for the D.C. Circuit, asking that court to order Judge Sullivan to “immediately” grant DOJ’s motion to dismiss. The D.C. Circuit panel (Judges Henderson, Wilkins and Rao) has ordered Judge Sullivan himself to file a response addressing that request by next Monday, June 1.

    At the end of this article, I’ll offer a few thoughts about the merits of DOJ’s submission and about the options Judge Sullivan has for dealing with it. But that’s not the primary reason I’m writing. Whatever the right answer might be as to whether Judge Sullivan should or should not grant the motion to dismiss the charge against Flynn, the principal purpose of this article is to stress the relative insignificance of that question in the grander scheme of things.

    Flynn’s lies to the FBI in his January 24, 2017 interview were indefensible. In the course of the Flynn “affair,” however, several officials—including but hardly limited to Flynn himself—have done far more disturbing and damaging things. Many other actors, by contrast, have acted appropriately and in the national interest. Unfortunately, just as with the public’s anticipation of and reaction to the Mueller investigation, the inordinate focus on whether a particular individual committed one or another offense under the U.S. criminal code is diverting attention from where it ought to be, on much more significant matters of constitutional governance.

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

    What follows is an effort to identify and evaluate many of the most important aspects of the Flynn affair, roughly in chronological order from the Summer of 2016 to today

    P1
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  11. #401

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    P2 Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper
    Updated with analysis of declassified Flynn-Kislyak transcripts

    3. The Kislyak Calls
    By the first week of 2017, the FBI had discovered the content of calls Flynn had made with Russian Ambassador Sergey Kislyak in the final ten days of 2016, which are described in detail at pages 167-173 of Volume I of the Mueller Report and at pages 24-26 of Volume II. [UPDATE: One day after I published this article, the government made most of the transcripts publicly available. They speak for themselves, but my thoughts on their importance–and the importance of how the President and Attorney General are characterizing them–appear in this section and in the final four paragraphs of this article.]

    The first calls occurred on December 22 and 23, 2016. Egypt had submitted a resolution to the United Nations Security Council calling on Israel to cease settlement activities in Palestinian territory. There were press reports that the Obama Administration had decided the United States would abstain on the vote. Led by Jared Kushner, multiple members of the Trump transition team, including President-Elect Trump himself, tried to rally support among foreign government officials to delay the vote, or to have their nations vote to defeat the resolution (a course of action that the Obama Administration itself did not undertake and presumably wouldn’t have approved). Under instructions from Kushner, Flynn contacted Kislyak on December 22 to request that Russia vote against or delay the resolution. At that point, Egypt postponed the vote, but the next day, Malaysia, New Zealand, Senegal, and Venezuela resubmitted the resolution, and Flynn again lobbied Kislyak to have Russia intervene to stymie the resolution. Russia did not do so, and on the 23d the Security Council adopted Resolution 2334 by a vote of 14-0 (including Russia), with the U.S. alone abstaining.

    The second series of calls between Flynn and Kislyak commenced less than one week later, on December 29, just hours after the United States had imposed sanctions on nine Russian individuals and entities, expelled 35 Russian government officials, and closed two Russian government-owned compounds in the United States, all in response to Russia’s interference in the 2016 presidential election. President-Elect Trump expressed a lack of concern about Russia’s election interference. When asked about the sanctions, he responded: “I think we ought to get on with our lives.”

    After discussing the matter with members of the transition team, including Michael Ledeen and K.T. McFarland, Flynn called Kislyak to urge Russia not to escalate the situation in the manner the U.S. expected it to do. Flynn at the very least implied to Kislyak that the Trump Administration would be more conciliatory to Russia, notwithstanding its election interference, and he may even have suggested that Trump might alleviate the sanctions Obama had imposed that very morning. [UPDATE: Flynn implored Kislyak to convey to Moscow that it should “not allow this [Obama] administration to box us in right now.” Flynn also said to Kislyak, “Let’s keep this at a level that uh is, is even-keeled, okay? ls even-keeled. And then what we can do is, when we come in, we can then have a better conversation about where … we’re gonna go … regarding our relationship.” He also criticized the Obama administration’s “position on the Middle East,” saying that it “doesn’t do anybody any good.”] Unlike with respect to the first call (about the UNSC resolution), in this case Russia did as Flynn asked: Vladimir Putin decided not to escalate the conflict, presumably assured that Trump would ease up on the U.S.’s objections to Russia’s election interference. [On December 31, Kislyak conveyed the news to Flynn, adding that “We are hoping within two weeks we will be able to start working in [a] more constructive way.”]

    To hear DOJ now tell it, those late-December calls were of no moment, and shouldn’t have affected the FBI’s decision to close the Flynn investigation. The most alarming and revealing passage in the DOJ motion to dismiss the charge against Flynn is this one—in particular the bolded sentence:

    With its counterintelligence investigation no longer justifiably predicated, the communications between Mr. Flynn and Mr. Kislyak—the FBI’s sole basis for resurrecting the investigation on January 4, 2017—did not warrant either continuing that existing investigation or opening a new criminal investigation. The calls were entirely appropriate on their face. . . . Mr. Flynn, as the incumbent [sic] National Security Advisor and senior member of the transition team, was reaching out to the Russian ambassador in that capacity. In the words of one senior DOJ official [Mary McCord]: “It seemed logical . . . that there may be some communications between an incoming administration and their foreign partners.” Such calls are not uncommon when incumbent [sic] public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts.

    This is absurd—akin to Trump’s assertions in 2019 that his communications with the Ukraine, urging officials of that nation to announce an investigation of Hunter and Joe Biden, were “pitch perfect.” It’s shocking the Executive branch would write such a thing in a brief to a court. The Flynn/Kislyak calls were the furthest thing from “appropriate.”

    For one thing, the apparent substance of the call on December 29 was, at a minimum, deeply disturbing. Flynn apparently was signaling to Kislyak that the Trump Administration would be more conciliatory to Russia, notwithstanding its election interference, than the Obama Administration had been—up to and including an implication that Trump might well alleviate the sanctions Obama had imposed that very morning. (Putin presumably wouldn’t have done if he didn’t have reason to believe the Trump Administration would be more conciliatory with respect to the election interference matter.)

    The question of why Trump, Flynn, et al., were—and continue to be—so in thrall to Vladimir Putin, or at the very least indifferent to Russia’s threat to our electoral system, continues to be perhaps the most consequential question of the Trump Presidency.

    Even apart from the merits of what Flynn said, however—that is to say, even if you happen to agree with Trump’s views on Russian sanctions and/or on the U.N. vote regarding Israeli settlements—it’s inappropriate for a member of a presidential transition team to communicate with foreign officials secretly about current U.S. national security or foreign policy matters (i.e., without the knowledge of the State Department or some other process for informing the current Administration), and far worse still to do so in an effort to undermine the national security or foreign policy objectives of the United States as determined by the President then in office.

    According to the New York Times, the Obama Administration had made a “pointed request” to the Trump transition team to avoid sending conflicting signals to foreign officials before the inauguration and to include State Department personnel when contacting such officials. That’s fairly standard-issue stuff, as reflected in the Partnership for Public Service’s widely consulted Presidential Transition Guide. It was wrong for Flynn to disregard the administration’s request and the longstanding norm—and particularly to do so in the way he did here. Contrary to the two Freudian slips in the DOJ brief, Flynn was not the “incumbent National Security Advisor” at the time—Susan Rice was. DOJ is right that incoming officers commonly communicate during the presidential transition with their future foreign partners so that they can “begin and build relationships with soon-to-be counterparts.” Friendly congratulatory calls and innocuous, generic “I look forward to working together” communications are commonplace. It’s another thing entirely, however, to signal a subversion of the sitting President’s foreign policy objectives—let alone to do so secretly, so that the U.S. government is unaware of what’s being said and done. (To be sure, the government in this case eventually discovered what Flynn and Kislyak discussed, but not for several days, during which time the State Department and other agencies were in the dark about what Putin was up to and why.)

    Moreover, this wasn’t just any foreign counterpart or an ordinary transition context—Flynn was speaking to a representative of the nation that had just hacked the American election campaign in an effort to have Trump elected, and doing so mere hours after the President of the United States had responded decisively. As Director of National Intelligence James Clapper saw it, Flynn had “essentially neuter[ed]” the just-imposed sanctions.*

    Indeed, the wrongfulness of Flynn’s actions was so manifest that when word of the conversation with Kislyak became public (see Point 8, below), it infuriated President-Elect Trump, who instructed Reince Priebus to direct Flynn that he had to “kill the story.” Flynn then told K.T. McFarland that “I want to kill the story,” and asked her to call the Washington Post and deny that Flynn had discussed sanctions with Kislyak. As the Mueller Report recounts, “McFarland made the call as Flynn had requested although she knew she was providing false information, and the Washington Post updated the column to reflect that a ‘Trump official’ had denied that Flynn and Kislyak discussed sanctions.” As noted in Point 7, below, Flynn himself made the same denials to Priebus, Vice President-Elect Mike Pence, and incoming press secretary Sean Spicer. (Flynn also omitted the discussion of sanctions from his written documentation of the December 29 Kislyak call, later acknowledging to Robert Mueller’s Office that he did so “because it could be perceived as getting in the way of the Obama Administration’s foreign policy.” (The quotation is the Mueller Report’s characterization of what Flynn told the Mueller investigators.))

    If the December 29 calls had truly been “entirely appropriate,” as DOJ now insists, surely Trump wouldn’t have been so angered, Flynn wouldn’t have dissembled to all of these people, including even the incoming Vice President, and incoming members of the Trump White House wouldn’t have been so adamant about denying the allegation that the U.S. sanctions were discussed.

    [UPDATE: The reactions of many Trump/Barr/Flynn defenders to the transcripts of the December 29 call–in effect, that Barr’s right that it’s a big nothingburger at worst, if not “laudable” (see below)–prompts me to add the following about the heart of the huge disconnect respecting the Flyyn/Kislyak call:

    We know now that Trump (at best) didn’t care about Russia’s election interference–he’s said so daily for three-plus years. And if that’s your baseline understanding–that of course Trump wasn’t troubled by the cyber-operations and therefore would naturally have been trying to stymie the effects of Obama’s sanctions–then the reaction to the Kislyak call is: “Duh!”

    But on December 29 2016, the idea that the incoming President of the United States and/or his National Security Advisor would be so nonchalant about Russia’s interference–in secret, with the Russian Ambassador!–was virtually unthinkable, shocking, and alarming, easily justifying DOJ’s and the FBI’s concerns. And then things only got more troubling when the Vice-President-Elect offered a false public account.

    Or, as David Corn writes, think about when this call was occurring and what the incoming National Security Advisor failed to say to the Russian Ambassador:

    At no point does Flynn castigate Kislyak for Russia’s intervention in the 2016 election. He does not confront the Russian ambassador for Putin’s covert operation to subvert American democracy. He does not tell Kislyak that Moscow will have to pay a price for hacking the Democrats and using the stolen information to influence the election for Trump’s benefit. Flynn, a former head of the Defense Intelligence Agency, does not warn Kislyak against any further Russian information warfare targeting the United States. As the Obama administration was trying to impose a punishment on Putin for that attack, Flynn, on behalf of the Trump gang, was sending an utterly different message: We don’t care about that.

    Think about this perverse set of interactions: the incoming national security adviser was essentially telling a foreign adversary that the new president wasn’t concerned about an attack on the United States and, moreover, indicating that Trump didn’t intend to do anything about it. In fact, Flynn was signaling to Putin that once Trump took office, Trump wouldn’t be pursuing the matter and, instead, would be reaching out to Russia as a partner. (A few months later, Trump, in the Oval Office, would tell Kislyak that directly.) . . .

    He was dealing with the Russians as if there had been no attack.]
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  12. #402

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    P3 Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper
    Updated with analysis of declassified Flynn-Kislyak transcripts

    4. Flynn’s Coordination With the Trump Transition Team, and the Role of President-Elect Trump Himself
    As the Mueller investigation later discovered, Flynn wasn’t acting alone in making either set of phone calls with Kislyak in December 2016. (What follows is derived primarily from the Mueller Report, but Flynn himself also attested to the gist of it on November 30, 2017.)

    As noted above, the December 22/23 calls to Kislyak about the UNSC Resolution were coordinated with the President-Elect and directed by Jared Kushner.

    Flynn also carefully coordinated with the transition team his December 29 calls about Obama’s sanctions on Russia. As soon as the press reported the sanctions, the highest-level members of the team staying at the Mara-Lago club in Palm Beach, including McFarland, Steve Bannon, and Priebus, began discussing how they might respond, including possibly by having Flynn discuss the sanctions in a call he was planning to have with Kislyak that day. Flynn, who was vacationing in the Dominican Republic, held off on communicating with Kislyak until he had spoken with the team at Mar-a-Lago, which he did: He had extensive discussions with McFarland and Michael Ledeen about what he should say to Kislyak.

    Just after sending an email to transition team members about the sanctions in which she informed the group that Flynn would be talking to Kislyak that evening, McFarland briefed President-Elect Trump about the issue, in the presence of Bannon, Priebus, Sean Spicer, and other Transition Team members. McFarland later recalled to the Mueller investigators that at the end of the meeting someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. Although it’s therefore almost certain Trump knew at least roughly what Flynn planned to say to Kislyak, the Mueller investigation did not find any evidence that Trump directed Flynn to say anything about sanctions. (Mueller asked Trump specifically about these incidents (see Questions V(b)-(e)), but in his written responses the President … simply ignored those questions, as though they hadn’t even been asked.) Several weeks later, then-President Trump said in a press conference that although he didn’t direct Flynn to discuss sanctions with Kislyak, “it certainly would have been okay with me if he did. I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.” Trump, and the rest of his team, did not appreciate how inappropriate this course of action was—a view now alarmingly blessed by the Department of Justice.

    After his discussion with Kislyak, Flynn reported to McFarland the substance of his call, including the discussion of sanctions, and McFarland summarized to Flynn her recent briefing with President-Elect Trump. After Russia failed to take the expected steps to escalate, Flynn told McFarland that he believed his phone call had made a difference, and McFarland congratulated him. Flynn also discussed the sanctions with Bannon the next day and Bannon appeared to know about Flynn’s conversation with Kislyak.

    (...)

    6. President Obama’s Reaction

    In late December and in early January 2017, the Obama Administration was surprised that Russia did not respond as expected, with harsh countermeasures, to the U.S.’s sanctions and the expulsion of 35 Russian diplomats. President Obama asked the intelligence agencies to search their resources for a possible explanation, and it was then that the FBI discovered the Flynn/Kislyak conversation from December 29. The President and his administration were, for very good reason, deeply concerned about the Flynn/Kislyak calls, particularly given that the Intelligence Community was then reading Flynn into many highly classified matters. Obama explained to National Security Advisor Rice, Vice President Biden, FBI Director Comey and Deputy Attorney General Yates that he needed to know whether the White House should be treating Flynn any differently, in terms of information-sharing regarding Russia. He stressed, however, that he was not “asking about, intimating or instructing anything from a law enforcement perspective”—in sharp contrast to the way in which President Trump would later brazenly violate the longstanding norms precluding presidential involvement in law enforcement decision-making. Obama told the gathered officials that “our law enforcement team needs to proceed as it normally would—by the book.”

    That was proper way of dealing with the matter.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  13. #403

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    P4 Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper
    Updated with analysis of declassified Flynn-Kislyak transcripts

    7. What About “Unmasking” Flynn’s Identity?

    The “unmasking” issue is a red herring. The FBI reportedly didn’t “mask” Flynn’s name to begin with in the transcript of the December 29 Kislyak conversations, presumably because those calls were discovered during an effort by the Intelligence Community to find an explanation for what might have caused Russia not to retaliate. (In any event, even if the FBI had originally redacted Flynn’s name from the transcript and then disclosed his involvement to officials in the Intelligence Community so that they understood what had happened and what the possible continuing threats were—that’s what “unmasking” is—there’d have been nothing remotely wrong with doing so. That would have been the sort of entirely appropriate and uncontroversial unmasking that happens every day within the executive branch.)

    (...)

    The FBI’s Strategy and Objectives in its January 24 FBI Interview with Flynn

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

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

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

    This isn’t my area of expertise—not by a longshot. I’ve never been involved in a counterintelligence investigation nor an FBI witness interview. So I inquired with several people much more experienced in these matters than I am. They’ve mostly shared my bafflement about the apparent interview strategy, and view the interview itself–at least based upon what is publicly known about it–as having been ineffective at figuring out what Flynn was up to and why.

    The new DOJ motion to dismiss the charge against Flynn insinuates that the FBI undertook the interview primarily as a perjury trap. The interview, it asserts, “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.” And in an interview on May 7, Attorney General Barr stated unequivocally that the FBI continued the investigation of Flynn for the “express” purpose of “lay[ing] a perjury trap for General Flynn.”

    If that were what happened—if the agents were simply trying to set a “perjury trap”—that wouldn’t have been unlawful or especially unusual, nor would it justify or exculpate Flynn’s lies during the interview. For what it’s worth, however, the experienced prosecutors with whom I’ve consulted are uniformly certain it wasn’t such a trap—at least, not a trap designed to successfully prosecute Flynn for a violation of 18 U.S.C. § 1001(a)(2). If it had been, the agents probably would have warned Flynn about § 1001 in advance, which makes it much easier to prove “willfulness” in the case of a § 1001 trial given the federal government’s current view that that element requires proof beyond a reasonable doubt that the defendant made a false statement with knowledge that his conduct was unlawful. Most importantly, it’s unlikely the Bureau was trying to trick Flynn into violating § 1001 because it almost certainly didn’t expect him to continue his false denials—especially not when the agents used his own statements in forming their questions—given that Flynn had already acknowledged to Deputy Director Andrew McCabe that he assumed the FBI “probably knew what was said in these calls because [you] listen to everything they [i.e., Russian diplomats in the U.S.] say.”

    But if the Bureau wasn’t trying to induce Flynn to make false statements, then the question remains: Why did the FBI conduct the interview as it did—especially after it had ignored the Acting Attorney General and refused to coordinate with the Justice Department?

    Quite honestly, I’m not sure of the answer to this question. The best I’ve come up with is this, but concededly it’s speculative: The two agents and others in the Bureau expected Flynn to come clean and, in part for that reason, the agents hadn’t been authorized to acknowledge to Flynn that they had a recording or transcript of his conversations with Kislyak. They also didn’t know for certain that Sally Yates was about to reveal that information to the President through White House Counsel McGahn. Therefore, when Flynn continued his denials, even after being prompted with his own words, the agents had little option but to return to FBI headquarters and report the somewhat surprising results of the interview, which would allow officials at the Bureau and DOJ to discuss and agree upon the next steps, which might include, e.g., a follow-up interview with Flynn; interviewing others; searching for further evidence of communications with Kislyak; disclosing to McGahn and Trump what the FBI already knew: etc. Perhaps, in other words, the agents thought their best (or only) course of action was to leave all the options on the table until their superiors reached a view on which course to take, given the curve ball Flynn had thrown them.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  14. #404

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    P5 Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper
    Updated with analysis of declassified Flynn-Kislyak transcripts

    11. Flynn’s Knowing and Willful False Statements During the January 24 Interview

    Did Flynn knowingly and willfully lie in his interview with the FBI agents? As noted below, the new DOJ motion to dismiss shockingly suggests that this is a close question.

    It’s not.

    For one thing, less than a year later Flynn admitted that he did so, under penalty of perjury.

    Even if Flynn hadn’t attested to it, however, the evidence is overwhelming that Flynn was deliberately lying to the agents–that he hadn’t forgotten the very reasons that he had called Kislyak and what they had discussed.

    Recall, for example, that in mid-January President Trump had Reince Priebus direct Flynn to “kill the story.” Flynn then instructed K.T. McFarland to call the Washington Post and deny that Flynn had discussed sanctions with Kislyak, and Flynn made the same denials to Priebus, Pence, and Spicer. Flynn was obviously committed, in other words, to doing what Trump wanted of him, perhaps fearing that his job depended upon it. (Flynn told the Mueller investigators that “he felt a lot of pressure because Priebus had spoken to the ‘boss’ and said Flynn needed to ‘kill the story.'”) In other words, this was something Flynn had been thinking a great deal about over the course of the preceding weeks.

    Trump’s pressure on him to “kill the story” also likely explains why Flynn repeatedly made false statements about his communications with Kislyak during the January 24 FBI interview, even though he suspected (as he told McCabe) that the FBI had the goods on the calls. In particular: Flynn stated that he didn’t request that any countries take any particular action on the UNSC Resolution. But on December 22, 2016, Flynn called Kislyak, informed him of the incoming Trump Administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution. Flynn also stated that Kislyak never relayed to Flynn Russia’s response to his December 22 request regarding the resolution. That was false, too. Kislyak in fact told Flynn in a conversation on December 23, 2016, that Russia would not vote against the resolution if it came to a vote. Flynn stated to the agents that he didn’t ask Kislyak on December 29 to refrain from escalating the situation in response to sanctions the United States had imposed against Russia. But that is exactly what he asked Kislyak to do. (Flynn even said to the agents that he spoke to Kislyak before he was aware that Obama had imposed sanctions, which was obviously fabricated.) And Flynn told the agents that he didn’t recall a follow-up conversation in which Kislyak told him that Russia had decided to temper its response as a result of Flynn’s request—but that, too, was untrue.

    These falsehoods were certainly willful and knowing. Flynn couldn’t possibly have forgotten about these things that had occurred less than a month previously: They were a very big deal for him and the other transition team members at the time; he had even boasted about his responsibility for Russia’s response; the President had sent word that he had to “kill the story”; he had specifically instructed McFarland to deny to the press that he had discussed sanctions; and when the issue had become a public controversy, he had told Pence, Priebus and others that he hadn’t discussed the sanctions. This wasn’t something that had slipped his mind in the first three weeks of January. Flynn also knew it was unlawful to lie to the Bureau in this setting.

    All of which explains why White House Counsel McGahn and Chief of Staff Priebus, upon learning of the content of Flynn’s calls with Kislyak, “concluded that Flynn could not have forgotten the details of the discussions of sanctions and had instead been lying about what he discussed with Kislyak.” Indeed, no reasonable observer could conclude otherwise. And Flynn’s own sworn declaration confirms it.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




  15. #405

    Re: The Manafort/Stone/Epstein/Flynn Trials & Scandals

    P6 Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper
    Updated with analysis of declassified Flynn-Kislyak transcripts

    14. Trump’s Effort to Shake Down Comey

    White House Counsel McGahn had advised President Trump that he should refrain from communicating directly with the Department of Justice on open investigations in order “to avoid the perception or reality of political interference in law enforcement.” Yet on February 14, the day after Flynn’s resignation, Trump pulled FBI Director Comey aside and said to him “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” The Mueller Report rightly concluded that “the circumstances of the conversation show that the President was asking Comey to close the FBI’s investigation into Flynn.”

    This was merely the first of many times that President Trump has publicly or privately tried to influence particular law enforcement (or military) investigations and prosecutions. (Volume II of the Mueller Report extensively describes many such examples.) It’s a grave breach of the longstanding norm that McGahn implored Trump to honor. And because it was manifestly done—here and in virtually all of the subsequent cases—primarily or exclusively to advance Trump’s own interests, it was also a violation of his oath of office and of his constitutional duty to take care the laws are faithfully executed. As Ben Wittes wrote:

    [Trump] isolated Comey in order to ask that he drop a sensitive FBI investigation in which he had a personal interest. He did this knowingly and intending to interfere with the investigation of Russian interference in the election and contacts between his transition team and Russian officials. It is a quintessential abuse of power, and while there may be viable technical defenses against a criminal charge, there simply is no plausible way to understand it as a good-faith exercise of presidential power.

    15. Trump’s Effort to Induce McFarland to Exonerate Him

    Five days after his attempted shakedown of Comey, President Trump (through Priebus and Bannon) told K.T. McFarland, Flynn’s Deputy at the NSC, that he wanted her to resign, too, and suggested he might appoint her to be Ambassador to Singapore. Trump asked Priebus to have McFarland draft an internal email that would “confirm” that Trump had not directed Flynn to call Kislyak about sanctions in December. McFarland told Priebus that because she didn’t know whether or not Trump had directed Flynn to speak with Kislyak about sanctions, she wouldn’t draft such an email. According to the Mueller Report, “[t]he President’s request … was sufficiently irregular that McFarland … felt the need to draft an internal memorandum documenting the President’s request, and [Jon] Eisenberg was concerned that the request would look like a quid pro quo in exchange for an ambassadorship.”

    Unless Trump did not direct Flynn to discuss sanctions with Kislyak (something that remains uncertain) and believed that McFarland knew of that fact, his request that she draft an exonerating email was not only very irregular but very troubling, too.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.




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