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  1. #406

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

    P7 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

    The Mueller Team’s Treatment of the Flynn Case (Including Flynn’s FARA Violations)—and Its Decision to Charge Him with a Violation of Section 1001

    In May 2017, after Flynn and Comey were no longer in office, Acting Attorney General Rod Rosenstein appointed Robert Mueller as Special Counsel to oversee the Russia investigations. On August 2, 2017, Rosenstein specifically authorized Mueller to investigate allegations that Flynn (i) committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition; (ii) committed a crime or crimes by making false statements to the FBI when interviewed about his contacts with the Russian government; (iii) committed a crime or crimes by failing to report foreign contacts and income on a Form SF-86 that he completed in anticipation of his being selected to serve as the National Security Adviser to President Trump; and (iv) committed a crime or crimes by acting as an unregistered agent for the government of Turkey.

    Using further, more probing interviews with Flynn—at least 19 in all—and with other Trump transition team officials (such as McFarland and Kushner), and an examination of numerous emails, Mueller’s team was able to discover much of the information about the Kislyak calls that the FBI agents didn’t follow up on during their January 24 interview with Flynn. The results appear at pages 167-173 of Volume I of the Mueller Report and at pages 24-26 of Volume II. During this 2017 investigation, Flynn admitted that he had knowingly and willfully lied to the FBI, and on November 30, he declared under penalty of perjury the details of his acknowledged, deliberate falsehoods.

    Importantly, apart from the Kislyak calls, Flynn also attested that he made several false statements and omissions on March 7, 2017, when he filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey: (a) Flynn falsely stated that FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project; (b) he falsely stated that the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey; (c) he falsely stated that he initiated the writing of an op-ed he published in The Hill on November 8, 2016; and, most significantly, (d) he confessed to omitting from his FARA reports the material fact “that officials from the Republic of Turkey provided supervision and direction over the Turkey project.”

    Flynn thus effectively admitted, under oath, to violating FARA, a statute that generally makes it illegal to act as an agent of a foreign principal by engaging in certain (largely political) activities in the United States without registering with the Attorney General, and that also makes it a crime to willfully make false statements or omissions of material facts in FARA registration statements or supplements. As DOJ wrote in a recent sentencing memo about Flynn:

    FARA ensures that the public and our government know when foreign actors are behind activity intended to influence policy or opinion, so that policymakers and the public can properly evaluate the activity. Here, [Flynn] was working under the “supervision and direction” of the Government of Turkey, but never made such disclosures. During the entirety of the defendant’s time as the National Security Advisor and a senior advisor to the Presidential Transition Team, the public and our government did not know about his relationship with the Government of Turkey. When he published an op-ed seeking to remove a U.S. resident from the United States, the public was not informed that he and his company had been paid to do so at the behest of the Government of Turkey. Instead, he falsely represented in his FARA filings that the op-ed was written at his own initiative. And when individuals hired by his company lobbied federal and state officials, those individuals never disclosed that their activity was all being done under the “supervision and direction” of the Government of Turkey.

    As the former DOJ prosecutors recently told Judge Sullivan, they could have indicted Flynn for FARA violations, which are just as serious as, if not more serious than, a § 1001 offense, subject to maximum penalties of up to five or ten years in prison plus hefty fines. Yet the Government didn’t do so, presumably because (i) Flynn was willing to cooperate with the Mueller investigation in many important respects; (ii) he was willing to attest to facts constituting FARA violations; (iii) he was willing to plead guilty to his § 1001 offense involving the lies he told the FBI agents in the January 24 interview; and, perhaps, (iv) Mueller didn’t think it was very important for Flynn to spend any considerable time in prison, at least as long as he cooperated fully.

    The § 1001 offense to which Flynn pleaded guilty, in other words, is not a slim reed on which Flynn’s culpability depends—it is, instead, a more lenient fallback resolution of the sort that’s very common when prosecutors negotiate with cooperative targets of investigations. Accordingly, the prosecution here didn’t come anywhere close to “railroading” Michael Flynn. Quite the opposite: It offered him a very generous deal, primarily because Robert Mueller was (appropriately) much more concerned with getting to the bottom of the Russia investigation than with harshly punishing Flynn for his concededly criminal conduct.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.

  2. #407

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

    P8 Understanding the Michael Flynn Case: Separating the Wheat from the Chaff, and the Proper from the Improper

    17. DOJ’s New Arguments for Dismissing the Charge Against Flynn

    And so we come, finally, to DOJ’s recent motion to dismiss the single charge to which Flynn has twice pleaded guilty. I’ll explain below why I think that motion is groundless. But before I do, I should stress again that whether Judge Sullivan ultimately grants this motion—and whether Flynn is convicted—is truly the tail wagging the dog. The matters I’ve already discussed are, in many respects, far more important—as is what the motion itself reveals about the current Attorney General.

    Flynn pleaded guilty to 18 U.S.C. § 1001(a)(2), which makes it unlawful to “knowingly and willfully … make[] any materially false, fictitious, or fraudulent statement or representation” in a “matter within the jurisdiction of the executive … branch of the Government of the United States.” DOJ’s argument that this charge should be dismissed rests on three primary contentions:

    (i) that as of January 24, 2017, the FBI had no “legitimate” basis for investigating Flynn at all;

    (ii) that because the FBI “had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak,” there was “[no] justification or need to interview Mr. Flynn as to his own personal recollections of what had been said”;


    (iii) that even if Flynn’s statements “could be material, the Government does not believe it could prove that Mr. Flynn knowingly and willfully made a false statement beyond a reasonable doubt.”

    Each of these three legs of the DOJ argument is flimsy, to say the least.

    (i) The contention that there’s insufficient evidence that Flynn willfully lied

    Let’s start with the third and final proposition—the notion that DOJ couldn’t prove to a jury beyond a reasonable doubt that Flynn knowingly and willfully made any false statements in the January 24 interview. First of all, DOJ wouldn’t have to prove it to a jury—Flynn attested to the knowing and willful falsehoods as part of a guilty plea. But even if DOJ did have to present the case to a jury, Flynn’s own acknowledgements that he lied—both in his interview with the Mueller investigators and in his plea agreement—would itself make this just about the easiest case imaginable to prove that fact. And, in any event, as I explain in Point No. 11, above (see also Bob Litt here), the evidence is overwhelming—indeed, incontrovertible—that Flynn knew he was lying to the FBI about both sets of Kislyak calls.

    This aspect of the DOJ argument is virtually frivolous.

    (ii) DOJ’s insistence that there wasn’t any justification for the FBI’s investigation of Flynn at all in January 2017

    The first leg of DOJ’s argument fares no better. Of course the FBI had a compelling—indeed, an imperative—counterintelligence basis to investigate Flynn when it learned what he said to Kislyak on December 29, and especially after he induced McFarland, Spicer, Preibus and Vice-President-Elect Pence to publicly deny that he had discussed the sanctions with Kislyak. DOJ’s argument to the contrary depends crucially on its assertion that the Kislyak calls “were entirely appropriate on their face.” As I discuss in Point 3, above, that assertion simply blinks reality. (See also Bob Litt, on why the Kislyak calls and Flynn’s dissembling about them were far more than necessary to constitute a sufficient “predicate” for continued investigation.)

    (iii) The claim that Flynn’s lies couldn’t have affected the FBI’s investigation

    That leaves, finally, DOJ’s second contention, which I understand to be, in effect, an assertion that Flynn’s lies to the FBI were harmless, and thus couldn’t have been “material” to the FBI investigation for purposes of § 1001, because the FBI “had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak.” That is to say: The FBI knew the statements were untrue, so Flynn’s lies couldn’t have had any detrimental impact on the investigation. Indeed, according to the DOJ brief there was “[no] justification or need to interview Mr. Flynn as to his own personal recollections of what had been said.”

    This theme of DOJ’s argument does, at first glance, have some intuitive appeal: After all, Flynn’s lies simply confirmed what the investigators and other officials were worried about, namely, that Flynn was committed to trying to convince everyone in the Government and the public that he hadn’t discussed sanctions with Kislyak when in fact he had done so.

    But insofar as DOJ is relying on this sort of a claim, it’s faulty on the facts and on the law. As for the facts, Flynn’s lies did have an impact on even the FBI interviewers themselves. Imagine if Flynn had told them the truth: “Yes, I asked Russia to delay the U.N. vote, and I asked Russia not to escalate the sanctions situation, suggesting to them that the Trump Administration would be more forgiving of the election interference.” In that instance, of course, the agents would have followed up in the January 24 interview itself with obvious questions about why Flynn did so; about who, if anyone, asked him to do so; about why they disregarded the Obama Administration’s admonitions not to do so; about why they were relatively indifferent to Russia’s election hacking; about why Flynn lied to Pence, Priebus and Spicer; about why Flynn directed McFarland to lie to the Washington Post; etc. To be sure, and as I discuss in Point No. 10, above, the agents could have laid the predicate for such questions even after Flynn lied to them, by confronting him with the transcripts of his calls. But, for whatever reason, the FBI had decided not to disclose to Flynn in that interview that it had intercepted the communications, and therefore his lies effectively prevented the interview from proceeding to those key questions.

    More importantly, the law doesn’t require proof that the lies had an actual impact on the investigation. You might not appreciate that from reading the DOJ brief, the very first page of which includes this (seemingly) very powerful citation of authority:

    Materiality is an essential element of the offense. Materiality, moreover, requires more than mere “relevance” or relatedness to the matter being investigated; it requires “probative weight,” whereby the statement is “reasonably likely to influence the tribunal in making a determination required to be made.” United States v. Weinstock, 231 F.2d 699, 701 (D.C. Cir. 1956) (italics in DOJ brief).

    If that’s all you knew of the law, you might think: well, gosh, Flynn’s lies didn’t turn out to have any “probative weight”; because the FBI already knew what Flynn said to Kislyak, Flynn’s denials weren’t “reasonably likely”—indeed, not likely at all—to influence any “determination” by the FBI, let alone a determination the FBI was “required” to make.

    But DOJ here has egregiously and deliberately misstated the law. The sole authority it cites is an introductory paragraph from a 64-year-old decision (reversing a red-baiting conviction) regarding the role of “materiality” in the law generally. The very next paragraph of that opinion more accurately acknowledges that “[t]he test” under § 1001 is, in fact, whether the false statement “has a natural tendency to influence, or was capable of influencing,” an agency’s actions—not that it was “reasonably likely” to do so. Weinstock, 231 F.2d at 701 (emphasis added); see, e.g., United States v. Gaudin, 515 U.S. 506, 509 (1995). And the suggestion in DOJ’s Weinstock quotation that the determination in question must be one that the agency is “required” to make is obviously mistaken, as the D.C. Circuit has already held, see United States v. Stadd, 638 F.3d 630, 638 (D.C. Cir. 2011) (Henderson, J.).

    It’s worth noting that Flynn himself made this same argument (i.e., that because the FBI “knew exactly what was said,” nothing in Flynn’s answers to the agents “impeded [the FBI’s] purported investigation”) just a few months ago, also “without citation to any legal authority.” United States v. Flynn, 411 F. Supp. 3d 15, 41 (D.D.C. 2019). Judge Sullivan unceremoniously and correctly rejected the argument then because it’s “foreclosed by D.C. Circuit precedent.” Id. (citing United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010)). The Judge’s analysis then, id. at 41-42, explains why DOJ’s resuscitation of that argument now is frivolous:

    Mr. Flynn has a fundamental misunderstanding of the law of materiality under 18 U.S.C. § 1001(a)(2), which requires a false statement to be “material.” . . . The Supreme Court has instructed that “[t]he statement must have ‘a natural tendency to influence, or [be] capable of influencing, the decision of the decisionmaking body to which it was addressed.’” United States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); accord United States v. Diggs, 613 F.2d 988, 999 (D.C. Cir. 1979) (“Proof of actual reliance on the statement is not required; the Government need only make a reasonable showing of its potential effects.”). But “a statement need not actually influence an agency in order to be material.” Moore, 612 F.3d at 701.

    As a matter of law, the government need not prove that Mr. Flynn’s false statements impeded the FBI’s investigation in order to establish the materiality element. See id. at 702 (holding that defendant’s false statement “was capable of affecting the Postal Service’s general function of tracking packages and identifying the recipients of packages entrusted to it” and defendant’s false information “could have impeded the ability of the Postal Service to investigate the trafficking of narcotics through the mails”). And Mr. Flynn’s multiple false statements were material regardless of the interviewing FBI agents’ knowledge of any recordings and transcripts of his conversations with the Russian Ambassador—the existence or non-existence of which have neither been confirmed nor denied by the government, see Gov’t’s App. A, ECF No. 122-1 at 5—and whether the FBI had knowledge of Mr. Flynn’s exact words during those conversations. See United States v. Safavian, 649 F.3d 688, 691 (D.C. Cir. 2011) (rejecting defendant’s argument that his false statements were not material where the interviewing FBI agent “knew, based upon his knowledge of the case file, that the incriminating statements were false when [the defendant] uttered them”).

    DOJ knows all of this law, of course. Indeed, for many years the Department has consistently insisted that the argument Flynn made, and that DOJ now apparently adopts, fundamentally misunderstands the meaning of “materiality” under § 1001. This is what the Department argued, for example, in a brief it filed in the U.S. Court of Appeals for the Second Circuit just three days before it filed its motion in the Flynn case:

    “It has never been the test of materiality that the misrepresentation or concealment would more likely than not have produced an erroneous decision.” Kungys v. United States, 485 U.S. 759, 771 (1988). Indeed, “the phrase ‘natural tendency’ connotes qualities of the statement in question that transcend the immediate circumstances in which it is offered and inhere in the statement itself.’” United States v. McBane, 433 F.3d 344, 351 (3d Cir. 2005) (quoting United States v. Gaudin, 515 U.S. 506, 512 (1995)) . . . . In other words, the inquiry is entirely objective. . . . Thus, where the “point” of a false statement was to influence an agency’s decision and the statement had “in the ordinary course … an intrinsic capability” to do so, the materiality standard is met. [United States v.] Turner, 551 F.3d [657,] 664 [7th Cir. 2008].

    This longstanding DOJ and judicial view undoubtedly explains why, later in its brief in support of its motion to dismiss the Flynn charge (p.17), DOJ acknowledges in passing that “it does not matter that the FBI knew the truth and therefore was not deceived by Mr. Flynn’s statements” (citing Safavian and Moore). That’s right. And it also explains why DOJ’s highlighted reliance on the quotation from Weinstock to suggest just the opposite is so disingenuous.

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

  3. #408

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

    Megan Mineiro @MMineiro_CNS
    BREAKING: Judge Sullivan responds to Flynn's petition to the D.C. Circuit--to force the judge to grant DOJ's motion to dismiss--arguing the case should follow the normal judicial process and that "adversarial presentation of the issues leads to better decisions."

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

  4. #409

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

    Adam Klasfeld@KlasfeldReports

    INBOX: For a second time, @SDNYnews contradicts Prince Andrew's claims he cooperated with the Jeffrey Epstein probe.

    "If Prince Andrew is, in fact, serious about cooperating with the ongoing federal investigation, our doors remain open."

    Remarkable, rare rebuke.

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

  5. #410

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

    A layperson reading a legal opinion is usually crosseyed by the third sentence of the first paragraph. Not so with this one.

    Megan Mineiro @MMineiro_CNS

    JUST IN: John Gleeson court-appointed counsel argues that Judge Sullivan should deny DOJ's motion to dismiss #MichaelFlynn's case and that there is "clear evidence of a gross abuse of prosecutorial power."

    Or, to sum up...

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

  6. #411

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


    southpaw @nycsouthpaw

    This is the sort of argument that Gleeson is particularly well situated to make.

    Another place where Gleeson is particularly strong--arguing that the purpose of 48(a) is to let the courts out of collaborating with the executive in an action that stinks of corruption.

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

  7. #412

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

    A reminder of who Judge Gleeson is:

    Scott Hechinger @ScottHech

    This “ex-judge” is John Gleeson. The former federal prosecutor who prosecuted John Gotti. The former judge with one of the most brilliant minds & most protective of defendant’s rights. He would not say things like this if he weren’t dead serious.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.

  8. #413

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

    Eric Garland @ericgarland

    "Flynn turned rat on his co-conspirators, admitted he committed all kinds of felonies, and got a sweet deal of pleading to a tiny little §1001 charge."

    WHOA: "Flynn admitted that he was screwing with the FBI investigation, AND *admitted he was also a spy for Turkey and Erdogan,* though he was never charged for it."

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

  9. #414

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

    Prosecutor to tell Congress of pressure from ‘highest levels’ of Justice Dept. to cut Roger Stone ‘a break’

    Karoun Demirjian,
    Matt Zapotosky and
    Rachael Bade
    June 23, 2020 at 4:47 p.m. EDT

    A federal prosecutor is expected to tell House lawmakers Wednesday that the senior-most Justice Department officials pressured government lawyers in Roger Stone’s criminal trial to treat him “differently and more leniently” during his trial, “based on political considerations” and “because of his relationship with the President.”

    Aaron Zelinsky, an assistant U.S. attorney in Maryland who previously served on former special counsel Robert S. Mueller III’s team, is one of two current Justice Department employees expected to tell the House Judiciary Committee that Attorney General William P. Barr ordered agency officials to pursue politically motivated investigations and court motions, in deference to President Trump and his own preferred policies.

    Read Aaron Zelinsky's opening statement to the House Judiciary Committee
    Updated Jun 23, 2020 at 5:44 PM

    Aaron Zelinsky, an assistant U.S. attorney in Maryland who previously served on former special counsel Robert S. Mueller III’s team, is expected to tell House lawmakers Wednesday that the senior-most Justice Department officials pressured government lawyers in Roger Stone’s criminal trial to treat him “differently and more leniently” during his trial, “based on political considerations” and “because of his relationship with the President.”

    According to a copy of his prepared remarks, Zelinsky plans to testify that prosecutors experienced “heavy pressure from the highest levels of the Department of Justice to cut Stone a break,” and request a lighter sentence he characterized as “virtually unprecedented.” Zelinsky formally objected to the “significant pressure” placed on line prosecutors “to water down and in some cases outright distort events” that led to Stone’s prosecution, activity he called unethical. His objections, Zelinsky intends to say, went unheeded, and he ultimately resigned from the case.

    Stone is supposed to report to prison June 30 to begin serving his 40-month sentence, but on Tuesday, his defense team asked a judge to postpone that date, citing concerns over the spread of coronavirus in many detention facilities. Stone’s attorneys wrote that the U.S. attorney’s office did not oppose a 60-day extension “based on the Department of Justice’s and the Executive Office of United States Attorneys’ guidance on the handling of voluntary surrender dates during the pandemic at this point in time.”

    John Elias, the acting chief of staff for the Justice Department’s Antitrust Division, is expected to appear alongside Zelinsky to describe how Barr often issued orders to investigate company mergers, not because of antitrust concerns but because he “did not like the nature of their underlying business.”

    According to his prepared remarks, Elias will say that at Barr’s direction, the antitrust division launched 10 full-scale reviews of merger activity in the marijuana industry that the division’s head, Assistant Attorney General Makan Delrahim, acknowledged were motivated by dislike of the industry “on the fifth floor,” where Barr’s office is located. He also plans to describe how staff were hastily ordered to initiate an investigation into major U.S. automakers that had entered a deal with the state of California to impose stringent emissions standards, the day after Trump tweeted about them.

    Read John W. Elias’ opening statement to the House Judiciary Committee
    Updated Jun 23, 2020 at 5:43 PM

    Wednesday’s hearing is part of a broader investigation by the House Judiciary Committee into politicization at the Justice Department, and comes as the panel’s chairman, Rep. Jerrold Nadler (D-N.Y.), is preparing to subpoena Barr to appear before lawmakers on July 2.

    Democrats say the weekend firing of former U.S. attorney for the Southern District of New York Geoffrey Berman, who over the last two and a half years prosecuted cases against members of Trump’s inner circle, represents the attorney general’s most recent transgression in a long line of troubling behavior.

    Before that, they had objected to Barr’s refusal to defend the Affordable Care Act, what they’ve labeled his soft-pedaling in the prosecutions of Trump affiliates Roger Stone and Michael Flynn, and the attorney general’s order to clear away protesters outside the White House using tear gas and stun grenades to pave the way for a Trump photo op.

    It is unclear if Barr will comply with any subpoena. A Justice Department spokeswoman did not immediately respond to a request for comment.


    “Subpoenas are supposed to be respected, obviously, but the corruption of the attorney general, of Barr, may lead him to try to defy it,” Nadler told host Rachel Maddow.

    Over the weekend, Nadler ruled out trying to impeach the attorney general. On Monday, he also seemed to swerve from committing to another fight over a contempt resolution, suggesting lawmakers could vote to “eliminate his office budget” instead.

    It is not the first time that Nadler has suggested targeting the attorney general’s budget — which Congress must vote on by Sept. 30 — as a means of retaliation. But a budget maneuver would also affect Barr’s successor, should Trump lose his reelection bid in November, making it a remedy Democrats are unlikely to pursue.
    “No matter how cynical I get, I just can't keep up.” – Lily Tomlin.

  10. #415

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

    Flynn's case is to be dropped.
    Subpoenas don't carry any weight anymore in the USA.
    Orders by congress are not enforceable.
    People that plead guilty to a crime can walk away free if the president or AG say so.

    Sorry. By now, there is no way the USA can ever again call any government anywhere in the world "banana country" or any variation of that.
    Rule of law is dead in the USA. The experiment is over.
    Face it. It's the apocalypse.

  11. #416

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

    Agreeing and emphasizing: Since having Trump as president (and with the events of every single day proving it), we have forfeited our right to criticize anyone for their choice of government. It would now be totally hypocritical to do so.


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