Patterico's Pontifications

5/31/2019

Transcript: Trump’s Lawyer Floats Pardon to Flynn’s Lawyer

Filed under: General — Patterico @ 5:52 pm



Those who have read the Mueller report, all three of you, already know that Donald Trump’s lawyer floated pardons to Michael Flynn and Michael Cohen to dissuade them from cooperating with the government. Now CNN reports:

The Justice Department on Friday released a more complete transcript of a voice mail from Donald Trump’s attorney John Dowd to Rob Kelner, the lawyer for Trump’s former national security adviser Michael Flynn, where he sought information about Flynn’s discussions with the special counsel on the eve of his cooperation deal.

. . . .

The release of the transcript — and lack of the other release of transcripts — came following Judge Emmet Sullivan’s unusual order last week seeking public disclosure of documents used in Flynn’s case as he heads toward sentencing Flynn for lying to investigators.

Overall, the voice mail highlights a call that special counsel Robert Mueller investigated as potential obstruction of justice by the President. Dowd had made the call on November 22, 2017, after Flynn’s team said it could no longer communicate with the White House, just before Flynn pleaded guilty and agreed to cooperate in Mueller’s investigation.

In the voice mail transcript, most of which was previously documented in the Mueller report, Dowd said it “wouldn’t surprise me” if Flynn was about to make a deal, but if it “implicates the President, then we’ve got a national security issue, or … some issue … not only for the President, but for the country.” He then asked for a “heads up,” according to the transcript. Dowd also wanted to remind Flynn about “the President and his feelings towards Flynn.”

The call “could have had the potential to affect Flynn’s decision to cooperate, as well as the extent of that cooperation,” Mueller wrote in his report on potential obstruction of justice by the President during the investigation. “We do not have evidence establishing whether the President knew about or was involved in his counsel’s communications with Flynn’s counsel.” Mueller credited Flynn for turning over the voice mail to investigators so they could investigate possible obstruction of the probe, according to a previous court filing.

If you think Dowd did that on his own without talking to Trump, you are naive. Here’s the text of the voice mail:

Hey, Rob, uhm, this is John again. Uh, maybe, I-I-I’m-I’m sympathetic; I understand your situation, but let me see if I can’t … state it in … starker terms. If you have … and it wouldn’t surprise me if you’ve gone on to make a deal with, and, uh, work with the government, uh … I understand that you can’t join the joint defense; so that’s one thing. If, on the other hand, we have, there’s information that. .. implicates the President, then we’ve got a national security issue, or maybe a national security issue, I don’t know … some issue, we got to-we got to deal with, not only for the President, but for the country. So … uh … you know, then-then, you know, we need some kind of heads up. Um, just for the sake of … protecting all our interests, if we can, without you having to give up any … confidential information. So, uhm, and if it’s the former, then, you know, remember what we’ve always said about the President and his feelings toward Flynn and, that still remains, but-Well, in any event, uhm, let me know, and, uh, I appreciate your listening and taking the time. Thanks, Pal.

This is not subtle. An accurate paraphrase: if you’re thinking of making a deal, remember Trump still likes your client and could pardon him.

When Justin Amash said Trump “engaged in impeachable conduct” he was right. This is just one example of many.

[Cross-posted at The Jury Talks Back.]

122 Responses to “Transcript: Trump’s Lawyer Floats Pardon to Flynn’s Lawyer”

  1. Ding.

    Patterico (115b1f)

  2. Trump should be impeached for having such a blundering lawyer. A f***ing voicemail message? Where does he find these idiots?

    JVW (54fd0b)

  3. What JVW said. Also, good grief!

    nk (dbc370)

  4. Should people practice law at age 77? High-powered, high-paced, Presidential impeachment law?

    nk (dbc370)

  5. The Patriarca Family in New England was once the most powerful mob families in the country, at least when the old guard was running it. By the late 80s, the capo was dead and the family was being transitioned over to the Baby Boomer generation for leadership. One of the most amazing moments demonstrating that the new generation was far too stupid to be entrusted with such responsibility was when the feds raided the family headquarters and discovered that the young guys had videotaped a Mafia initiation ceremony. It was an important piece of evidence that allowed the government to indict several people who they hadn’t realized were part of the crew.

    John Dowd would have fit right in as their clueless lawyer.

    JVW (54fd0b)

  6. If Trump had instead dangled something like an IRS “audit” of Flynn or his son, requiring legal fees that would force him to sell his house unless he cooperated, this would embrace wholesome prosecutorial practices.

    But, Trump was way too dumb and messed all that up.

    Munroe (29eead)

  7. @4. Sinatra was still singing at 80– but then he sang it his way.

    DCSCA (797bc0)

  8. Setting aside for the nonce the question of what was dangled and how obviously:

    JVW is right in general that it’s a bad idea for a lawyer to leave a voicemail on a sensitive subject; if he does leave a voicemail, it should be with the expectation that eventually he’ll hear it again on a courtroom public address system as part of Government Exhibit 321-A.

    But the Mueller report’s discussion (Vol. 2, pp. 120-22, 131) makes clear how spectacularly stupid this particular voicemail was:

    In late November 20 17, Flynn began to cooperate with this Office. On November 22,2017, Flynn withdrew from ajoint defense agreement he had with the President.833 Flynn’s counsel told the President’s personal counsel and counsel for the White House that Flynn could no longer have confidential communications with the White House or the President.834 Later that night, the President’s personal counsel left a voicemail for Flynn’s counsel that said:

    I understand your situation, but let me see if I can’t state it in starker terms. [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. [I]f … there’s information that implicates the President, then we’ve got a national security issue, … so, you know, … we need some kind of heads up. Urn, just for the sake of protecting all our interests if we can…. [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains … .835

    On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal counsel to acknowledge receipt of the voicemail.836 Flynn’s attorneys reiterated that they were no longer in a position to share information under any sort of privilege.837 According to Flynn’s attorneys, the President’s personal counsel was indignant and vocal in his disagreement.838 The President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s hostility towards the President and that he planned to inform his client of that interpretation.839 Flynn’s attorneys understood that statement to be an attempt to make them reconsider their position because the President’s personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President.840

    There are two main purposes for these joint defense agreements: The first is to permit defendants who share common interest to communicate through counsel with the understanding that every signatory to the agreement will assert and preserve the “joint defense” (or more properly, “common interest”) privilege recognized by state and federal rules of evidence. The signatories generally commit that they will keep each others’ confidences to the maximum extent permitted by law, rather than voluntarily furnishing information to outsiders that could waive the privilege for everyone.

    But the second and equally important purpose is to put a canary in the coal mine: Without a contractual commitment to give the other signatories a warning that you’re withdrawing from a joint defense agreement, you have no such obligation, and the government/plaintiff can recruit long-term on-going snitches among co-defendants by dangling better terms. So all these agreements include a mandatory “you have to give notice before you can withdraw” term, which courts will actually enforce (through suppression of evidence if necessary).

    Once they get that notice that one signatory has withdrawn, or is about to, then the others can reconsider: “What had we told them? How much are we at risk over?” And you can stop sharing new information with the withdrawing signatory to keep from making things worse!

    The notice from Flynn’s lawyers to Trump’s, then, was a metaphorically shouted one:

    The canary is DEAD! I say again: The canary is DEAD! Be alerted, be alarmed! This is a dead canary, doubtless asphyxiated by all the coal gas down this-aways! Beware the coal gas, it’s killed the damned canary already! It’s highly explosive, you know!

    Dowd’s voicemail message is like him saying in response:

    Dead canary, you say? Let’s just get some more light in here to take a look at the situation [confidently flicking his Bic].”

    When a member of the group pulls out, you must presume that everything you say in the future, and possibly everything you’ve said in the past, in the presence of that member is now in the hands of your opponents and will be used at trial.

    Dowd was effectively leaving a voicemail message for Bob Mueller. What a maroon.

    Beldar (fa637a)

  9. I hear they use Instagram now for the Mafia initiation ceremonies. Better earnings potential, plus who wants to rewind all those tapes?

    Beldar (fa637a)

  10. Wow I am amazed and more than amused.

    Of course, the same folks will say this either proves nothing, or proves something really bad about Trump’s critics. Had this been Obama’s lawyer, complete 180.

    Such a lack of character, every day, in almost every way.

    Dustin (6d7686)

  11. If you think Dowd did that on his own without talking to Trump, you are naive

    Call me naive…I think it’s quite possible Dowd did that without consulting Trump. And it’s such a generalized statement–Dowd doesn’t come close to suggesting a pardon or anything like it–that even if all the breadcrumbs led back to Trump, nothing substantial was said. In fact to me it reads as if perhaps Dowd was worried Trump was not being truthful with Dowd, and thought that Flynn might be able to throw a bomb right at Trump based on info Dowd knew nothing about. Hence his plea to be told if Flynn had anything incriminating Trump.

    Kishnevi (0dce2b)

  12. @10: Except that Obama’s lawyer would’ve been allowed to destroy the evidence. We know this because Hillary and her aides were allowed to.

    Munroe (d46cc3)

  13. The transcript was edited, otherwise it would have been a slam dunk charge.

    Narciso (f43143)

  14. So, what’s wrong with that? Trump has already made clear – in pubic – that he thought Flynn was getting a raw deal. What’s wrong with reminding Flynn of that? Even a two year old could see that if Flynn cooperated = no pardon and if Flynn did NOT cooperate there could be a POSSIBLE pardon.

    Again, Trump committed no crime. So, there was no reason, other than humanity, to help Flynn.

    rcocean (1a839e)

  15. From what I’ve read. And i could be wrong, Flynn cooperated the Government and told them EVERYTHING he knew. And that’s in the Mueller Report. Flynn had nothing on Trump. No reason for Trump to “Bribe him”.

    rcocean (1a839e)

  16. If I am supposed to find a man guilty, I’m going to need a lot more than a lawyer telling me I’m naive for not coming to the same conclusion he did.
    I’d want to see proof that Trump told Dowd to do all of this and absent that, I can’t even say “well he is the kind of guy that would do that” without having injected my own bias.
    Where is the iron clad proof Dowd was directed to do this by Trump?
    Without that, it is a mixture of 1 part educated to 1 part biased guess

    Isn’t this kind of leaking illegal?
    Unseemly?
    I doubt we are getting the full story from the leakers because I’m pretty sure they have an agenda. If they identified themselves it would help their credibility

    steveg (354706)

  17. Further to Kish’s #11: I tend to agree. I think it’s entirely possible that Dowd is stupid enough to have done both the voicemail and the follow-up telephone call on this without some stupid prompting from stupid Donald J. Trump. It’s the kind of bristling, how-dare-you, you-can’t-possibly, don’t-you-know-who-we-are kind of bluster that clients like Trump think is effective, and that insecure, inexperienced lawyers fail to see the downsides of. (It’s not, and here it wasn’t just ineffective, it was disastrously stupid.)

    If you don’t have a few scars from knife wounds inflicted by your fellow defense counsel, you ain’t been around the fighting very long — civil or criminal.

    (I am reminded that most of what I know about joint defense privileges, their terms and their negotiation, I learned in a brief exposure to Kimba Wood — then Esq. and now the Honorable — then lead counsel for one of the target defendants in a huge multi-defendant antitrust case. Judge Wood expeditiously sorted out every conceivable privilege argument to the satisfaction of all concerned in connection with the raid on Michael Cohen’s premises. I recall having to defend her here, though, against Trumpkins who’d read the latest crap on their Trumpkin websites about how she was an agent of the Deep State, this was more of the witch hunt, she was biased, she was disqualified, blah blah blah Orange Man Great! More maroons.)

    Beldar (fa637a)

  18. What a beautiful pile of legally inadmissible evidence rotting underneath the poisoned trees that produced it.

    Here’s something more interesting, and relevant:

    “JAN CRAWFORD: What suggests to you there was a failure in the upper echelon at the FBI?

    WILLIAM BARR: Because I think the activities were undertaken by a small group at the top which is one of the- probably one of the mistakes that has been made instead of running this as a normal bureau investigation or counterintelligence investigation. It was done by the executives at the senior level. Out of head quarters–

    JAN CRAWFORD: And you’re talking about James Comey, McCabe?

    WILLIAM BARR: I’m just not going to get into the individual names at this point. But I just view that- I don’t view it as a bureau wide issue. And I will say the same thing for other intelligence agencies. And they’re being very cooperative in helping us.

    JAN CRAWFORD: They’re being cooperative?

    WILLIAM BARR: Yes.”

    As the man said, everybody dies. Some people even accomplish something worthwhile before they do.

    Mueller's still relevant, guys! (2c3f6d)

  19. .

    So … uh … you know, then-then, you know, we need some kind of heads up. Um, just for the sake of … protecting all our interests, if we can, without you having to give up any … confidential information.

    IOW, if you’re making some crazy charge against Trump, just give us a head start so we can defend ourselves. Sounds pretty reasonable to me.

    rcocean (1a839e)

  20. @ rcocean, who wrote (#15):

    Flynn had nothing on Trump. No reason for Trump to “Bribe him”.

    And the way Trump knew that? The way Dowd knew it? The reason Dowd went so balistic? You’re using 20/20 hindsight, sir. And Flynn had nothing to give Mueller on Trump until Dowd started running off his mouth to Flynn’s lawyers!

    Trump is always, ever, his own worst enemy.

    Beldar (fa637a)

  21. Because I think the activities were undertaken by a small group at the top which is one of the- probably one of the mistakes that has been made instead of running this as a normal bureau investigation or counterintelligence investigation. It was done by the executives at the senior level. Out of head quarters–

    We’re still waiting for the IG report. Which, as usual, is late. Does any Lawyer ANYWHERE ever get something done without asking for a delay, an extension, or missing a deadline? Just asking.

    rcocean (1a839e)

  22. Again at rcocean, who wrote (#19):

    IOW, if you’re making some crazy charge against Trump, just give us a head start so we can defend ourselves. Sounds pretty reasonable to me.

    Flynn’s lawyers gave that “head start” to Dowd when they notified him of their withdrawal from the joint defense agreement. That was, as I wrote above (perhaps you missed it), one of the two reasons why lawyers enter into joint defense agreements.

    Once that notice was given, Dowd should have treated every communication with Flynn’s lawyers as if it were being cc’d directly to Mueller. That’s the point when, having been given your head start, you’re supposed to shut up and use it.

    Beldar (fa637a)

  23. And the way Trump knew that? The way Dowd knew it? The reason Dowd went so balistic? You’re using 20/20 hindsight, sir. And Flynn had nothing to give Mueller on Trump until Dowd started running off his mouth to Flynn’s lawyers!

    Dowd isn’t asking Flynn to keep his mouth shut. He’s asking Flynn to give them a “heads up”. From what I’ve read, everyone thought Flynn was a loose cannon, even before he got on the NSC. Bannon, Kushner, etc. all thought he was bad. Trump was blinded by his military background – but even he soon realized that Flynn was a cement head. Its obvious that his experience with Mattis, Kelly, Flynn, etc. has cured Trump of his love of Generals.

    rcocean (1a839e)

  24. The call “could have had the potential to affect Flynn’s decision to cooperate, as well as the extent of that cooperation,” Mueller wrote in his report on potential obstruction of justice by the President during the investigation.

    It might have caused him to say “Trump’s lawyers are complete idiots. No way do I want to get into that clown car. And with this tape, I can get a better deal from Mueller!”

    Kevin M (21ca15)

  25. @ rcocean, who asked, perhaps rhetorically (#21):

    Does any Lawyer ANYWHERE ever get something done without asking for a delay, an extension, or missing a deadline? Just asking.

    Yes. Asking for extensions is the exception rather than the rule in my practice in both state and federal court. In my current practice, it’s actually quite rare for either me or my opponents to ask for extensions, and then we ask one another before either of us asks a judge.

    Sometimes one must ask; otherwise one generally oughtn’t; I generally don’t; many lawyers generally don’t. Missing deadlines is malpractice; requests get denied and sometimes cause judicial annoyance.

    Perhaps that’s not what you wanted to hear; perhaps it doesn’t fit your stereotypes; perhaps your past experiences have been with disorganized or overworked lawyers.

    Beldar (fa637a)

  26. Flynn’s lawyers gave that “head start” to Dowd when they notified him of their withdrawal from the joint defense agreement. That was, as I wrote above (perhaps you missed it), one of the two reasons why lawyers enter into joint defense agreements.

    Sorry, I didn’t see that. As Emily litella would say ‘Never mind’.

    rcocean (1a839e)

  27. @ rcocean (#23):

    Dowd isn’t asking Flynn to keep his mouth shut. He’s asking Flynn to give them a “heads up”.

    You are missing the point. The conversation should never have happened, not after the notice of withdrawal was given. I repeat, sir: That was the head’s up! What part of that sentence do you not follow?

    Dowd shouldn’t have been asking Flynn’s lawyers for anything, nor making them any dangles, nor pretending they were still bosom friends whose clients had common interests which outweighed their conflicting ones. He absolutely, positively, shouldn’t have been doing both of those things in the same voicemail message.

    I don’t know how to explain this any more clearly.

    Beldar (fa637a)

  28. Ah. Okay, my #27 and your #26 crossed, rcocean. You did indeed grasp my point, for which confirmation I thank you.

    Beldar (fa637a)

  29. Flynn had nothing on Trump. No reason for Trump to “Bribe him”.

    Sure he did. Trump told Flynn to talk to the Russian ambassador about going easy on sanctions because once he got in office he would undo what Obama did. (This is a surmise on my part but I feel confident about it.) Whether you think he was entitled to tell Flynn to do that or not, obviously the Trump group was worried about people finding that out — both that Flynn had done it (which we know), and that he did it at Trump’s direction (which I surmise) — because Flynn lied even about the fact that he had done it. We know Trump was worried about it because was incensed when the news story about the conversation between the ambassador and Flynn was reported, and we know it also because Trump ordered K.T. McFarland to draft an internal memo saying that Trump had not ordered Flynn to have the conversation — even though McFarland had no idea whether such a memo would be true.

    News that Trump had ordered these secret conversations with a Kremlin representative to tell the Kremlin he would go easy on them — yeah, Flynn knew stuff Trump didn’t want anyone to know.

    That’s my theory.

    Patterico (115b1f)

  30. That’s my theory.

    “Always trust content from Patterico.”

    :)

    Dave (1bb933)

  31. Our host wrote (#20):

    Trump told Flynn to talk to the Russian ambassador about going easy on sanctions because once he got in office he would undo what Obama did. (This is a surmise on my part but I feel confident about it.)

    Mueller discusses the evidence regarding Flynn’s contacts with Kislyak on pages 24-26 of Volume 2. The footnotes repeatedly cite, of course, Flynn’s FBI interviews, but also Flynn’s statement of offense, given as part of his plea deal. The report specifically discusses who Flynn spoke with just before his first contact with Kislyak, which included K.T. McFarland, whose evidence is also repeatedly referenced by the report. I do, for example, see this:

    Flynn, who was in the Dominican Republic at the time, and K.T. McFarland, who was slated to become the Deputy National Security Advisor and was at the Mar-a-Lago resort in Florida with the President-Elect and other senior staff, talked by phone about what, if anything, Flynn should communicate to Kislyak about the sanctions.82 McFarland had spoken with incoming Administration officials about the sanctions and Russia’s possible responses and thought she had mentioned in those conversations that Flynn was scheduled to speak with Kislyak.83 Based on those conversations, McFarland informed Flynn that incoming Administration officials at Mar-a-Lago
    did not want Russia to escalate the situation.84

    Footnote 84 references the Flynn statement of offense. I am unaware of any contrary testimony elsewhere in the Mueller report. And this discussion certainly doesn’t mention Trump — as opposed Trump senior staff — directly telling Flynn what to say.

    It seems hard for me to imagine that Mueller’s team didn’t also ask Mueller, and McFarland, and Priebus, and any other senior staff, whether there had been another instruction, directly given to and conveyed by Trump. And since Flynn was in the D.R., how could Trump have contacted him there from Mar-a-Lago without leaving phone records.

    So: Do you have any surmises as to why we have to be surmising about such a direct contact between Trump and Flynn? In other words, if you’re right, wouldn’t Flynn have given that up as part of his cooperation agreement, such that it would be documented in the Mueller report? Certainly if the instruction were phrased as you hypothesize, it would have been memorable to Flynn, no?

    What am I missing?

    Beldar (fa637a)

  32. *directly given and conveyed by Trump to Flynn, I ought have written in #31.

    Beldar (fa637a)

  33. Beldar, am I missing something?

    From the passage you quoted:

    Based on those conversations, McFarland informed Flynn that incoming Administration officials at Mar-a-Lago did not want Russia to escalate the situation.

    Isn’t “incoming Administration officials at Mar-a-Lago” entirely consistent with “Trump, or someone acting at Trump’s direction”?

    Dave (1bb933)

  34. Not in this context, I don’t think, Dave. McFarland would have surely been asked, “Did Trump tell you to tell Flynn to tell Kyslyak anything?” If the answer was “yes,” that surely would have been included in Mueller’s report. If the answer was “Yes, Trump told me to tell Flynn to talk to the Russian ambassador about going easy on sanctions because once he got in office he would undo what Obama did,” I’m quite sure that would have been not only in Volume 2’s discussion of obstruction, but also in Volume 1!

    Mueller’s people swabbed all these witnesses out. That’s what makes the report so devastating to Trump: It documents things from every angle, from multiple witnesses when possible, with corroboration from documents and other physical and digital evidence when possible. I therefore start off being very skeptical of a theory like this one which depends on Mueller having completely missed something this big.

    For our host’s theory to work, I think one has to postulate that on the same day the Obama Administration announced the sanctions, December 29, 2016, Trump and Flynn, with one of them in Mar-a-Lago and the other in the D.R., had some secret communication that Flynn never disclosed and that left no footprints. McFarland’s testimony is that he didn’t even brief Trump on the new sanctions until late in the afternoon of the 29th, after he’d already told Flynn what “incoming Administration officials at Mar-a-Lago” wanted Flynn to say. Could Trump have used a cut-out to speak to Flynn again, even after McFarland’s instruction, to convey the supercharged version? Well, again, who could that have been whom Mueller hasn’t swabbed out? Why no records?

    And I just don’t think the natural reading of “incoming Administration officials at Mar-a-Lago” — which was a reference, of course, to the transition team — naturally can be read to include the POTUS himself, who is no mere “Administration official” and would strike down with lightning anyone who dared to so suggest.

    Beldar (fa637a)

  35. I should not try to spell Kislyak from memory.

    Beldar (fa637a)

  36. McFarland would have surely been asked, “Did Trump tell you to tell Flynn to tell Kyslyak anything?” If the answer was “yes,” that surely would have been included in Mueller’s report.

    Well, I don’t know.

    No name is given. If you assume Mueller would have explicitly named Trump, why wouldn’t he have explicitly named whoever else really gave the order?

    There were only two people above McFarland in the chain of command who she would have been obliged to take orders from: Flynn himself, and Trump. The Deputy NSA wouldn’t take instructions from the Secretary of State or the Chief of Staff (who seem like the most likely alternatives to the president-elect) on a policy question, I think.

    Another possibility is that the decision emerged from discussions or a meeting involving McFarland, Trump and others, such that no single person was solely responsible and “incoming Administration officials at Mar-a-Lago” is the most accurate attribution possible.

    Dave (1bb933)

  37. if you’re right, wouldn’t Flynn have given that up as part of his cooperation agreement, such that it would be documented in the Mueller report?

    If he was telling the whole truth. I do not assume he did.

    I don’t think he has that discussion with Kislyak without a green light from Trump.

    Just like I don’t think Dowd leaves that voice mail without an indication from his client that he can dangle that pardon.

    I could be wrong, as to either or both points. But that is what i think.

    Patterico (03f629)

  38. For our host’s theory to work, I think one has to postulate that on the same day the Obama Administration announced the sanctions, December 29, 2016, Trump and Flynn, with one of them in Mar-a-Lago and the other in the D.R., had some secret communication that Flynn never disclosed and that left no footprints

    That does not strike me as remotely implausible.

    Patterico (03f629)

  39. Trump has defended Flynn many times and I do not recall him flying off the handle about Flynn’s cooperation agreement, though I welcome correction if my memory is faulty.

    Patterico (03f629)

  40. Above I linked a story that said McFarland balked at Trump’s order to write a memo saying Trump did not order Flynn to talk to Kislyak, because, McFarland said, she had no idea whether that was true. Kind of important, no?

    Patterico (03f629)

  41. @ Patterico: The stuff about McFarland refusing to write the memo is important. It shows she was being pressured to go outside her personal knowledge, which pressure was improper, an attempt to influence a witness’ testimony. It doesn’t show, nor even tend to show, that in fact Trump did or didn’t order Flynn to talk to Kislyak. Rather, it’s an example of why we don’t need to engage in the kind of speculation you’re engaging in, in order to draw very significant and adverse conclusions about whether Trump was attempting to obstruct justice.

    What kind of secret phone technology do you postulate that Donald Trump had available to him in Mar-a-Lago with which, at the drop of a hat, he was able to avoid leaving any tracks for Mueller? Isn’t that rather … convenient? Do you see any other examples in the Mueller report of that kind of technological sophistication on Trump’s part?

    Beldar (fa637a)

  42. You’re reminding me of that Ronald Reagan, Mastermind skit on SNL.

    Are we talking about the same Donald Trump? The same one who famously tried and failed to disguise his voice when calling news organizations with the claim that he was some publicist named John Barron (hmmm, his son is Barron Trump … coincidence?) or John Miller?

    Beldar (fa637a)

  43. Keep in mind that by this time, Flynn himself was probably already under active FBI and/or other intelligence-community surveillance. The Mueller report is a bit cryptic, deliberately I’m sure, on when that actually started (at page 26):

    Members of the intelligence community were surprised by Russia’s decision not to retaliate in response to the sanctions.103 When analyzing Russia’s response, they became aware of Flynn’s discussion of sanctions with Kislyak.l04 Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian government105 Flynn’s contacts with Kislyak became
    a key component of that investigation.

    Previously when? I can’t find an answer, but certainly Flynn’s relationship with the Russian government went back at least to Flynn’s December 2015 trip there (where he sat next to Putin at the 10th birthday of Russian TV network RT).

    Beldar (fa637a)

  44. We’re talking about the same guy who trusted Michael Cohen to be his bagman for payoffs to porn stars? Trump couldn’t hide his tracks with a dump truck full of dirt and a battalion of NYC sanitation workers pushing brooms at his direction. It gets funnier the more I think about it.

    Beldar (fa637a)

  45. We’re worse than Hillary, mg. She lost. We win! Be afraid! Be very afraid!

    In most places, this judge would not be allowed to take the GoFundMe money at all. Not for any purpose. Not for legal fees, not for medical bills, not to donate it to charity. Not and remain a judge. She would have to resign or be removed before she can take the money, and maybe not even then. Some vicious, spiteful, and vindictive person might even be able to bring a qui tam action to have the money returned to the GoFundMe donors and failing that to have it escheat to the state treasury.

    nk (dbc370)

  46. Powerline disputes this. They say

    The Mueller Report edited messages to make them appear more damaging, full transcript of this phone call reveals Dowd’s message was pretty typical for a lawyer and he clearly states he’s not interested in any confidential info.

    Compare the full text with the Mueller Report text at https://www.powerlineblog.com/archives/2019/06/mueller-dings-dowd.php

    FWIW Dowd said “It is unfair and despicable. It was a friendly privileged call between counsel – with NO conflict. I think Flynn got screwed”

    David in Cal (0d5a1d)

  47. Trump Administration and Flynn:

    Last year [2016], President Donald Trump’s transition team reportedly looked for ways for disgraced former national security adviser Michael Flynn to send encrypted messages during the presidential transition and just prior to his conversations with the former Russian ambassador to the United States, according to emails obtained by Gizmodo.

    The emails—unearthed through a Freedom of Information Act, or FOIA, request made by watchdog American Oversight to the General Services Administration (GSA)—showed the transition team had been approved by the GSA to use Signal, a smartphone application with end-to-end encryption that can delete messages almost instantly after they are sent.

    The GSA hosted the Trump transition team’s emails, and the messages were recently obtained by special counsel Robert Mueller’s investigative team. Much to the chagrin of a Trump campaign lawyer, Mueller’s team obtained the emails as part of its investigation into whether the president’s campaign colluded with Russia to win the White House last year.

    Earlier this month, Flynn, a former lieutenant general, pleaded guilty to lying to the FBI about his conversations with Russian Ambassador Sergey Kislyak during the transition in December 2016. And the transition team emails indicate Flynn and Jared Kushner, the president’s son-in-law who became his top White House adviser, spoke with Kislyak one day after the transition team talked about using Signal.

    Flynn had not obtained a phone that could carry “secret” or “top secret” information by the end of November 2016, which prompted discussions about the use of Signal. According to the report, the GSA had asked wireless provider Verizon for a secure phone but was turned down.

    Other devices were available but costly, which led one unknown transition team member to state: “Signal sounds great. I don’t want to start a process of getting ‘more secure’ phones for the next 50+ days if we can avoid it and use what we already have.”

    GSA approved of using Signal, which could mean Flynn’s messages—if he did use the application—may never come to light.

    DRJ (15874d)

  48. I think that just because Trump may not be that clever about things, that doesn’t mean everyone in his White House orbit is a bumbler. However, he does seem to be trying to weed out the smart ones.

    DRJ (15874d)

  49. By the way, from the same link:

    “Our IT lead has confirmed that we can install an App on the [Presidential Transition Team] phones called Signal. This will provide secure voice and text,” a GSA employee wrote on November 28.

    Flynn and Kushner reportedly spoke to Kislyak about setting up a “secret and secure” channel between the transition team and Russia. Kislyak told Russian officials that the proposal was made on December 1 or 2 of last year.

    The timing sounds like Flynn (and Kushner) wanted untraceable calling feature to talk to his Russian contacts, and I bet they used similarly equipped phones to call Trump. Kushner is smarter than Cohen.

    DRJ (15874d)

  50. I can’t argue with a lawyer, nk.

    mg (8cbc69)

  51. Killjoy!

    nk (dbc370)

  52. You have agreed with me a few times, mg! But, in fairness, I am retired.

    DRJ (15874d)

  53. Do they give your soul back when you retire?

    :)

    Dave (1bb933)

  54. We foreclose on somebody else’s.

    nk (dbc370)

  55. Heh. The possibilities are endless.

    DRJ (15874d)

  56. Rubber Soul

    mg (8cbc69)

  57. *Robber Soul.

    Sorry! just kidding. I got lawyers in the family.

    JRH (52aed3)

  58. @ David in Cal (#47): I addressed that Rosie person and her BS tweet in a comment on another thread yesterday. It is utter h0rsesh!t, sir. The differences in what was quoted and what was left out are trivial.

    Dowd’s claim that his voicemail and/or subsequent phone call were “was a friendly privileged call between counsel – with NO conflict” is the most counterfactual thing I have ever heard of. Please, sir, if you have not, and you want to actually learn what a joint defense agreement is, and does, and is intended to do, and why therefore Dowd was so world-class stupid in what he did after getting notice of Flynn’s withdrawal, I comment to you my prior comments here, starting at #8.

    As for my former friends at PowerLine, whom I once respected (but stopped respecting when they stopped being rational lawyers and turned instead into Trumpkin lickspittles): Please invite any of them to come debate the issue with me here. I won’t do it at their blog, I cannot abide by having my comments handled by Facebook. But if anyone at PowerLine thinks Dowd is correct, they’re as world-class stupid as he is. I would very much like the opportunity to question them about joint defense agreements into which they’ve entered for various clients; I am 100% confident I can extract their admission that everything I’ve written in my #8 above is exactly correct. I say this as a board certified civil trial lawyer with almost 40 years experience that’s every damned bit as solid as theirs (which is why we used to be, in Rathergate and on similar issues, natural allies in the blogosphere and linked each others’ blogs favorably).

    This is not a close call.

    Beldar (fa637a)

  59. Bah. “I commend to you” my prior comments. Apologies for the typo.

    Beldar (fa637a)

  60. Speaking of court orders, the DOJ is refusing a federal court order to publicly release the transcripts of conversations between Flynn and Kislyak to the (link).

    Paul Montagu (ed733c)

  61. @ DRJ: Thanks for the interesting link & quote at #48. If I read it correctly, the linked story, from December 2017, confirms that as of the end of November 2016, Flynn did not have a phone which could support the Signal app, and that some unidentified transition team member wrote that plans for getting new phones should be delayed at least 50+ days. It also confirms, as we also know from the much Mueller report and elsewhere, that Mueller’s team was putting activities of the transition team under a microscope, seeking information from every available source.

    As part of that process, Mueller’s team interviewed everyone who was in a position to have helped Trump and Flynn. In general, I put more faith into the footnoted findings of fact in the Mueller report than I do into Newsweek’s speculation.

    I therefore find it difficult to infer that Mastermind Trump, or the people in his transition team who were assisting him, gave him and Flynn super-secret phones that no one else in the transition team knew had actually been acquired or loaded with this app, without Mueller learning of it. Even if the encryption is impenetrable and the original and decoded versions are instantly and effectively deleted from the devices, they still would have left digital footprints that some sort of message, even if it couldn’t be decrypted from those digital footprints alone, had passed between Mar-a-Lago and the D.R.

    I don’t think this makes our host’s theory any more persuasive. YMMV of course.

    Beldar (fa637a)

  62. The timing sounds like Flynn (and Kushner) wanted untraceable calling feature

    WhatsApp can supposedly do that, but the NSA can break anything it wants to break, given time.

    Kevin M (21ca15)

  63. I’m just saying that narrowing down the pattern of facts regarding this specific incident, I could not vote to convict Trump on it.
    We’ve got a transcript.
    We’ve got allegations Trump tried to talk to Flynn privately and “off the record” so to speak.

    Sure he a bad guy in a lot of ways that don’t directly impact this matter, he has a clear criminal record and given what the evidence is, I’d not vote to impeach much less convict.

    His civil record is full of the usual crap developers acquire… that’s why I do not work on developments. Its shark on shark violence. I have built things for CEO’s of real estate development firms at their personal homes and done well. The social pressures of a small town keep them in line, and they seem to want a higher level of quality than their usual “slap a giant gold “T” and some marble on it”

    I don’t live in a world of naive Trump bliss, I just would need a lot more than this to impeach or convict.

    Sorry if anyone took my use of the word “lawyer” as a pejorative

    steveg (354706)

  64. Signal, iPhone, Android or desktop.

    https://signal.org/

    Kevin M (21ca15)

  65. @ DRJ: Thanks for the interesting link & quote at #48. If I read it correctly, the linked story, from December 2017, confirms that as of the end of November 2016, Flynn did not have a phone which could support the Signal app, and that some unidentified transition team member wrote that plans for getting new phones should be delayed at least 50+ days. 

    That is not how I read it. Here is what the article said:

    Other devices were available but costly, which led one unknown transition team member to state: “Signal sounds great. I don’t want to start a process of getting ‘more secure’ phones for the next 50+ days if we can avoid it and use what we already have.”

    I understand that to mean that the transition decided to “use what we already have” — the Signal app to be used with the phones they already have — instead of waiting 50 days for secure phones. Thus, this suggests they wanted something to use immediately, because they didn’t want to wait until after the transition.

    DRJ (15874d)

  66. I checked, and the Dowd voicemail transcript from the Mueller report and the one released by Sullivan’s order are indeed different.

    How is this in any way okay? There’s no indication in the Meuller report that the transcript there is edited. There is also no indication that it was redacted or edited, not that I can see anyway.

    So, my questions are, is there any legitimate explanation for this, and, who did it and why. Was it the Meuller team, or was it done during Barr’s redacting?

    Arizona CJ (7f84bf)

  67. I’m not as confident as Beldar that Mueller has phone records for every single number going in and out of Mar-a-Lago or even to Flynn’s phone. Anyway, Trump called Roger Stone on borrowed phones.

    Patterico (115b1f)

  68. But I don’t think it matters. Flynn’s conversations were intercepted because the government was listening to Kisylak’s calls, not Flynn’s. Flynn should have known that the government listens to all calls involving high-ranking Russians unless they are secure (and maybe even the secure ones).

    But after Trump was elected, would a FISA Court allow Mueller to access Trump’s calls without evidence Trump did something wrong — and not just Flynn?

    DRJ (15874d)

  69. But I don’t think it matters. Flynn’s conversations were intercepted because the government was listening to Kisylak’s calls, not Flynn’s.

    Exactly!

    Patterico (115b1f)

  70. “Gentlemen do not listen in on other gentlemen’s telephone calls.”

    It boggles the mind that the former head of the Defense Intelligence Agency and current National Security Advisor, a career military spy, did not know that the NSA listens in on the telephone calls of the Russian ambassador, and then going and lying to the FBI and to Pence about it. What? Was he counting on the NSA not daring to reveal it? On Trump having his back no matter what?

    nk (dbc370)

  71. If he’s impeached, he wins; if he’s not impeached- he wins. So choose your poison– hand him a badge of honor or Congressional vindication. A GOP Senate would acquit; there are no patriots in Congress.

    ‘Trump Luck’ is in the air. Buy that lottery ticket, “folks.”

    Turning to sports- latest scores in The Patriot Games:

    Rule of Men – 2525 [if Man is still alive]
    Rule of Law – 0

    DCSCA (797bc0)

  72. @ ArizonaCJ, who wrote (#67):

    I checked, and the Dowd voicemail transcript from the Mueller report and the one released by Sullivan’s order are indeed different.

    How is this in any way okay? There’s no indication in the Meuller report that the transcript there is edited. There is also no indication that it was redacted or edited, not that I can see anyway.

    So, my questions are, is there any legitimate explanation for this, and, who did it and why. Was it the Meuller team, or was it done during Barr’s redacting?

    Yes, I checked too, and I maintain that there are no material differences. I’ll come back to that in a moment in more detail.

    There is indeed an indication of editing (not redaction) in the quoted passage in the Mueller report. They’re called ellipses — you know, the little row of three periods in a row, like this … which sometimes (if being done by someone very careful, like people with law journal experience) will be four periods, the final one indicating the end of the sentence but with omitted material before the final period, like this …..

    Your confusion is understandable because the transcriber also used ellipses to indicate pauses as well as elisions (i.e., deliberate omissions). Using ellipses to eliminate extraneous or duplicative material is not only acceptable, it’s universal in legal documents.

    I quoted the version from the Mueller report in my comment above (#8) without adding or changing any of the ellipses used by the writer(s) of that report. You can also see it at the Powerline article linked above link, set out side-by-side and with highlighting by whoever prepared that graphic.

    Note well: The PowerLine version is not a “redlined” version, despite its use of underscoring and highlighting. This tells me that whoever was doing the transcribing from the voice recording and the subsequent comparison was absolutely, positively not someone experienced in comparing, for legal purposes, two different versions of a transcript or other document. In fact, by giving the appearance that it is a thorough redline, it’s actually misleading itself; I’d get in trouble if I described something that slipshod as “redlining” in a document filed with any court. This is an example of the kind of particular that I had in mind when I wrote above that under close questioning, I’m certain I could extract at least reluctant agreement from any of the actual PowerLine bloggers (as opposed to the people of uncertain pedigree and training whose work product they’ve published): I am 1000% sure I could get John Hinderaker or Scott Johnson to agree that this isn’t a true “redline” comparison.

    Let’s look together at what was omitted and whether it was material, that is, whether it changed the gist or substance of the quotation.

    First is the introduction: Mueller omits “Hey Rob, uhm, this is John again. Maybe I-I-I’m-I’m sympathetic;”

    But before starting its quotation, the Mueller writer(s) prefaced the whole quote with an explanation that “Later that night, the President’s personal counsel left a voicemail for Flynn’s counsel that said:” Given that introduction, and also the Mueller team’s desire to identify Dowd generically by title, rather than by name, this in no way changes the gist or sense or substance of the full quotation.

    That Dowd may have been “sympathetic” to Flynn’s counsel — because having to give notice of withdrawal from a joint defense agreement is unusual and generally unpleasant, because it’s going to leave the former members of the agreement cross with the withdrawing one — is Dowd trying to soothe feelings, but it’s not directly relevant to the substance of the call. Omitting it was not misleading; it’s not material whether Dowd was or wasn’t sympathetic.

    The Mueller quote picks up after a semi-colon instead of after a full-stop period, meaning it begins with only a portion of a sentence from the original. Had I been transcribing it, I therefore would have included an ellipsis to indicate that the first part of that had sentence had been omitted. But other lawyers, including others with law journal training like mine, might have treated the semi-colon as if it were a period. They certainly started their quote with the first material portion of the voicemail message, i.e., “I understand your situation, but let me see if I can’t state it in starker terms.”

    Whoever did the transcription on the PowerLine version chose, as a matter of transcriber’s judgment, to insert a pair of ellipses that Mueller’s team didn’t, not to indicate an omission or elision, but rather to indicate a pause. Again, this difference between the two transcripts is not remotely material.

    Immediately after “starker terms,” the Mueller report’s version uses an ellipsis, and then a bracketed first letter, to indicate the omission of the first part of the sentence beginning “If you have [pause ellipsis], and” because it was duplicative of what immediately followed: “It wouldn’t surprise me if you’ve gone on to make a deal with” and it then omits an interjection, again showing that by an ellipsis, specifically “and uh work with”; making a deal with the government and working with the government are the same thing in this context. Again, nothing material was left out by omitting this interjected duplication.

    There’s an ellipsis to indicate the Muller report’s omission of “I understand that you can’t join the joint defense; that’s one thing.” This is another immaterial omission, because Dowd was babbling and speaking imprecisely: There already was a joint defense agreement; it was pursuant to that agreement, which Flynn through his lawyers had long ago joined, which had prompted his lawyers’ notice of their withdrawal from it. This omission was entirely appropriate, then, for purposes of reducing confusion, and the omission was not material to the overall gist or substance of the voicemail message.

    After an initial “[I]f” with the initial cap in brackets (another indication of an editing change), the Mueller report likewise uses an ellipsis to indicate another omission, which we see by comparison was “on the other hand, we have” That referred to the nonsense statement previously omitted, about “joining” the defense agreement. In context, the inarticulate Dowd was trying to say the opposite, I’m reasonably sure; that is, he meant to say that he understood that Flynn’s lawyers might believe they were in a situation where they were obliged to withdraw from the joint defense agreement and give notice of that withdrawal. But including Dowd’s imprecise language would have added nothing but confusion; it was properly omitted without changing the sense or gist of the voicemail.

    The Mueller report omitted, and so indicated by an ellipsis, more repetitious babble by Dowd when just after referring to a “national security issue,” he backtracks and says “or maybe a national security issue, I don’t know.” Again, I think this deliberate and signposted elision serves clarity and was fully justified; it doesn’t amount to a material change or change the gist or substance of the voicemail message.

    The Mueller report omitted, and so indicated by an ellipsis, Dowd’s repetitious “[pause ellipsis] some issue, we got to — we got to deal with, not only for the President, but for the country ….” But by definition, every “national security issue” involves the country and the President. I approve of this editorial decision, for concision and clarity, as well; the omission doesn’t remotely change the overall gist or substance of the voicemail.

    The Mueller report omitted, and so indicated by an ellipsis, Dowd’s qualifier “without you having to give up any [pause ellipsis] confidential information.” This is an obvious reference to the notice of withdrawal from the joint defense agreement, but it has the roles backwards: Flynn having withdrawn, Trump and other remaining signatories of the joint defense agreement were on notice that any confidential information they henceforward shared with Flynn’s lawyers wouldn’t be treated by Flynn’s lawyers as confidential (meaning: Yes, we’re going to give anything you tell us to Mueller as part of our deal with him). This is, in other words, an assurance by Dowd about a possibility that was no longer on the board, viz, that Flynn’s lawyers would continue to share any information in confidence with Trump, from their own client or anyone else. I again approve of this elision for purposes of clarity and concision; if anything, the edited version makes Dowd look slightly less stupid than the full version.

    Finally, the Mueller team omitted the closing to Dowd’s voicemail, and appropriately so indicated with another ellipsis (followed by a period). Does anyone really think that the gist or substance of this voicemail message turns on the inclusion or exclusion of “Well, uhm, in any event, let me know, and, uh, I appreciate your listening and taking the time. Thanks, pal”?

    It’s all nonsense on stilts. If I took a proper redlined comparison of the two versions to a judge and complained that my opponent had unethically and improperly changed the substance or gist of the voicemail through his elisions, or that he’d made changes without properly indicating them, I would be sanctioned for misbehavior.

    This is more whining by make-believe legal experts like “Rosie memos,” whose only identification on her Twitter feed is that she’s an “Expert level typo maker” — seriously! — from Los Angeles. You will not see Hinderaker or Johnson putting their own professional reputations directly behind this nonsense beyond republishing it on their Trump-adoring blog, and I repeat: Guys, come debate me here if you think otherwise, because I am very confident that if you engage with me here, I can extract from you a series of admissions that I’m right and “Rosie memos” is full of crap.

    Beldar (fa637a)

  73. Dear Lord that was tedious to write and I’m surprised if anyone actually reads all the way through it, but it had to be done to refute the barking moonbattery of Trumpkin shills.

    Beldar (fa637a)

  74. I had a not very bright, fussy old maid English teacher in my senior year of high school, whom I embarrassed in front of the rest of the class by demonstrating that she had wrongly tried to correct what she thought was my misspelling of “ellipsis.” I pulled out (of course) Webster’s to demonstrate that the plural of “ellipsis” is “ellipses,” and that as was clear from the context of my paper, I had been referring not to a single ellipsis but to more than one of them.

    She never recovered for the rest of the school year, but I was well on my way to becoming a law review nerd even then.

    Beldar (fa637a)

  75. I don’t know if this is throwing foam, or maybe gasoline, on the fire, but after seeing the reference to Powerline earlier I looked at what they (Scott Johnson) had to say about the Dowd phone call. It seems his opinion was that if the Dowd phone call was obstruction of justice or an attempt to do so then Dowd could have been charged, and the attorney client privilege would not protect Trump if Trump instructed him to make the call. The following is an excerpt:

    “On this episode the Mueller Report makes no sense in any event. I have yet to see an intelligent discussion of the report’s treatment of it. My own analysis may therefore be off, but consider this. If Dowd’s message to Kelner was obstructive, as the report asserts, Dowd himself would be liable whether or not he acted at the president’s behest or with his knowledge. Attorneys have no right to commit crimes on behalf of their principal.

    Indeed, there is a crime/fraud exception to the attorney-client privilege. See, for example, the matter of Trump personal attorney Michael Cohen. The exception would clearly apply to conversations in which the principal instructs the attorney to undertake obstructive action. I declare this aspect of the Mueller Report a complete and utter crock.”

    I could take a good deposition or draft a civil summary judgment motion, but don’t do criminal law and in fact know nothing of obstruction law, or of joint defense agreements other than that such things exist, so I defer to everyone who knows more, which probably includes all the previous commenters. But, to me the Powerline writer’s point seems plausible — even if Mueller for whatever reason couldn’t or wouldn’t bring obstruction charges against Trump, he could have charged Dowd if he believed the call was furthering obstruction. But this all murky enough to me that maybe there’s some obvious point I’m missing.

    So I offer that without endorsement, and await education from subsequent comments.

    RL formerly in Glendale (40f5aa)

  76. the plural of “ellipsis” is “ellipses,”

    Όλοι το ξέρουν αυτό.

    nk (dbc370)

  77. Beldar (fa637a) — 6/1/2019 @ 5:24 pm

    My freshman English teacher in high school became convinced that I must have plagiarized a passage of a paper because I used the word “albeit”.

    Dave (1bb933)

  78. @78. My freshman English teacher was… English.

    DCSCA (797bc0)

  79. Dear Lord that was tedious to write and I’m surprised if anyone actually reads all the way through it,

    I read every word. I agree with you, and I think that was probably Mueller’s thinking. I don’t think this shows bias or an attempt to be unfair, but I think it would have been better to leave in the “my country” in the “national security” phrase … or not edit anything. Why care if Dowd sounds inarticulate?

    DRJ (15874d)

  80. @ Beldar,

    Thank you very much for your detailed and highly informative post at #73.

    I now understand (thanks to you) that this is a general practice, though as you postulated I was indeed thrown by the usage of the same punctuation to indicate both omission and pauses by the speaker. I also neglected to discern the meaning of the bracketed capitals, which I ought to have done.

    I have to say, I would not approve of such editing, or indeed any editing, for submission at trial (any trial), especially for such a brief piece. The full, unedited transcript should be provided, for context if nothing else.

    Speaking of context, one edit I found troubling was the removal of Dowd saying he wasn’t asking for anything confidential. In context with the removed mention of the national security issue (Flynn was, after all National Security Adviser, and thus privy to many things that the administration might have very legitimate disclosure concerns about) I find this a bit concerning. Intentional or not, it gives the impression of selective editing of evidence.

    As for Dowd, the disjointed nature of his voicemail gives me pause. Why would he speak in such a manner? Most lawyers of my acquaintance are, if not always eloquent, decidedly well-spoken while conducting official business. Dowd’s voicemail, on the other hand, gives me the impression he’d perhaps imbibed too much whiskey that evening.

    Arizona CJ (7f84bf)

  81. @ RL formerly in Glendale, who writes as part of a thoughtful comment, and more civilly than me today:

    Indeed, there is a crime/fraud exception to the attorney-client privilege. See, for example, the matter of Trump personal attorney Michael Cohen. The exception would clearly apply to conversations in which the principal instructs the attorney to undertake obstructive action. I declare this aspect of the Mueller Report a complete and utter crock.”

    The crime-fraud exception is part of the law of evidence & procedure, and specifically, an exception to the rules of attorney-client privilege, when it may be asserted, and when it may be pierced. It covers communications, not people.

    You’re absolutely right that the crime-fraud exception could possibly have come up in the proceedings in the SDNY before District Judge Kimba Wood to sort out the consequences of the FBI raid on Cohens’ multiple premises — if but only if Donald J. Trump a/k/a client #1 chose first to claim attorney-client privilege as to one or more communications (not people!). It’s been a while since I looked at the docket sheet, but my recollection, without looking it back up, is that despite Trump’s lawyers’ ridiculous blanket claims of privilege when they first were whining to the press, there ended up being no appeals taken from any of Judge Wood’s rulings and that, indeed, in the end, Judge Wood didn’t end up having to reach the “crime-fraud” exception because the POTUS’ lawyers withdrew all of their claims of attorney-client privilege.

    Since Dowd isn’t resisting production of some communication of his with Trump on the basis of attorney-client privilege, crime-fraud really doesn’t have anything to do with Dowd’s voicemail. Dowd had no attorney-client relationship with Flynn (nor, therefore, his lawyers) and nothing Dowd ever told Flynn’s lawyers was subject to a claim of attorney-client. While Flynn was still an active party to the joint defense agreement, though, Dowd’s communications with Flynn’s lawyers would have qualified for the joint defense (aka common interest) privilege that all signatories to the joint defense agreement promised each other they’d maintain. That promise ended, at least on a forward-going basis, and possibly even as to past communications while Flynn was still in the joint defense agreement (which can help avoid deliberate or accidental waivers, but isn’t a substantive shield against discovery pursuant to subpoena or comparable court compulsion), when Flynn’s lawyers withdrew.

    As for Scott Johnson’s observation, which amounts to “Why didn’t Mueller indict Dowd for obstruction”: Mueller declined to make the threshold decision whether an obstruction of justice crime had been committed as to Trump. Scott’s right that Dowd could have independent liability and could have been prosecuted even without his co-conspirator Trump; but there is no version of the facts in which Dowd was arguably obstructing justice in these calls with Flynn’s lawyers in which that would have been on behalf of anyone but Trump. I can only assume that Mueller likewise didn’t bother to make the threshold inquiry with respect to Dowd, either.

    Alternatively, he might have; might have reached a declination decision; and might have omitted discussion of that in accordance with the general DoJ policy of refusing to confirm whether any declination decisions have been made, much less why. I can think of many reasons that would have supported a declination, certainly including the two that Barr and Rosenstein often relied upon — it’s not impossible (see U.S. v. I. Lewis “Scooter” Libby), but it’s much harder, to get a jury verdict if you have no underlying (predicate) crime and the attempted obstruction has been largely ineffective. Neither of those are legal defenses, but they are hills that prosecutors historically have found hard to climb, or alternatively, that many defendants have successfully hidden behind. Add to that that Dowd was clearly acting solely as a mouthpiece — not a legal defense, but something that jurors are nevertheless going to consider as a mitigating factor, especially if the co-conspirator himself hasn’t been indicted — it’s pretty easy to justify a declination as to Dowd, and if that’s what happened, it shouldn’t have been discussed in the Mueller report any more than any other declinations by the Mueller team.

    I’m still not sure what portion of the Mueller report you consider to be a crock, but if I haven’t addressed it here, I’m willing to make another go if you’ll ask me again another way.

    Beldar (fa637a)

  82. gives me the impression he’d perhaps imbibed too much whiskey that evening.

    Given his client, can you blame him if he did?

    Kishnevi (46054d)

  83. @ Arizona CJ (#81): You’re welcome! Thanks for investing the time to read that long, long comment.

    Licensed professional court reporters train in how best to indicate what’s happening verbally in their transcriptions. Good ones find other ways to indicate a pause, usually through dashes, rather than using ellipses. I don’t think either the transcription done by Mueller’s team or the translation that was at PowerLine was done by a licensed professional court reporter.

    As for omissions for concision: It’s a judgment call. Usually when one’s presenting something to a court or tribunal, the “other side” has access to the same source material, and if one’s elisions are indeed misleading, that’s an exploding cigar hanging from the misleading lawyer’s mouth, just waiting to be lit. (We don’t smoke in court anymore, of course; when I started, lawyers still smoked cigars in court, and the jury box had a spittoon between every pair of chairs.) If Mueller hadn’t made these sorts of elisions for concision, his report would have been many times as long, and the good parts would be inundated by the “Thank you for listening”-type comments. The longer transcription only makes Dowd seem more unprepared — voicemail isn’t the place to be playing things by ear — and inarticulate.

    You’re probably right that the closest judgment call was omitting the “we’re not asking for anything confidential.” But the context to me indicates they meant “confidential as meant by lawyers for privilege preservation,” not “confidential because it’s nuclear missile launch codes.” He’d just been warned in writing that his own communications with Flynn’s lawyers would no longer be treated by them as confidential, and Flynn’s plea deal certainly would have prevented Flynn’s lawyers from continuing to cooperate with Trump’s lawyers period, not just on “confidential” matters. Beyond confirming receipt of the withdrawal notice, they had nothing to discuss as lawyers for co-defendants any more, period. Since I can’t account for this as anything more than a half-formed and mostly backward blurtation by Dowd, I can’t see any possible way that Trump’s interests were somehow prejudiced by Mueller’s team omitting that from the transcription.

    Beldar (fa637a)

  84. If Dowd and his whole team didn’t sense the Flynn plea deal coming, it’s because they had their eyes screwed tightly shut, their thumbs in their ears, and were chanting “Nah-nah-nah!” at the top of their voices. The question wasn’t whether Flynn, but when. Hence the importance of the canary in the coal mine, that is, the required notification of withdrawal from the joint defense agreement. The notice of withdrawal, when it finally came, ought not to have been an occasion for a bender, but then different folks have different notions about what isn’t and isn’t an occasion for a bender, and I would only be speculating as to Dowd’s. “Highly unprofessional,” though, is certainly a fair description of his voicemail.

    Beldar (fa637a)

  85. What puzzles me is:

    If, on the other hand, we have, there’s information that. .. implicates the President, then we’ve got a national security issue, or maybe a national security issue, I don’t know … some issue, we got to-we got to deal with, not only for the President, but for the country. So … uh … you know, then-then, you know, we need some kind of heads up. Um, just for the sake of … protecting all our interests, if we can, without you having to give up any … confidential information.

    This is incoherent.

    But what it seems what we have here is that Dowd doesn’t know for sre if there is a national security issue, and he wants Flynn, if he decides to co-operate, not to give up any confidential information about Trump that implicates him in a crime and touches on national security.

    Patterico suspects this means that Trump authorized Flynn’s call to the Russian Ambassador. (although it could be other things too)

    Beldar: For our host’s theory to work, I think one has to postulate that on the same day the Obama Administration announced the sanctions, December 29, 2016, Trump and Flynn, with one of them in Mar-a-Lago and the other in the D.R., had some secret communication that Flynn never disclosed and that left no footprints

    Patterico: That does not strike me as remotely implausible.

    There’s another big problem with that:

    If that is so, the question then is, why didn’t Flynn say so? Not even till today’s day. Not about Trump authorizing any cntacts between Flynn and Russia during the transition, or before. Not about anything that implicates Trump.

    So maybe it’s that Trump’s lawyers, thought it might be true that Trump authorized Flynn’s call to the Russian Ambassador or, more proably, something a lot worse.

    Why would they think so?

    1. Because at that stage, aren’t communicating effectively with Trump, and don’t know what he did and what he didn’t do

    and

    2. Perhaps because that’s what Flynn’s lawyer told them. (vaguely)

    Dowd is acting entirely on his own. He has no idea what transpired and is trying to protect Trump, without even having any idea what he might be protecting Trump from.

    rcocean (1a839e) — 5/31/2019 @ 7:53 pm

    Even a two year old could see that if Flynn cooperated = no pardon and if Flynn did NOT cooperate there could be a POSSIBLE pardon.

    That’s why Dowd might feel comfortable freelancing like that.

    Again, Trump committed no crime.

    Dowd has his doubts. Possibly because of what he’d been told (incorrectly) by Flynn’s lawyer.

    Sammy Finkelman (db7fea)

  86. Gettysburg Address (with elision of all nonessentials):

    … We dedicate … that field…. [We must do] the great task …. [Don’t] perish …[!]

    Loses something, I think.

    Beldar (fa637a)

  87. As for Scott Johnson’s observation, which amounts to “Why didn’t Mueller indict Dowd for obstruction”: Mueller declined to make the threshold decision whether an obstruction of justice crime had been committed as to Trump. Scott’s right that Dowd could have independent liability and could have been prosecuted even without his co-conspirator Trump; but there is no version of the facts in which Dowd was arguably obstructing justice in these calls with Flynn’s lawyers in which that would have been on behalf of anyone but Trump. I can only assume that Mueller likewise didn’t bother to make the threshold inquiry with respect to Dowd, either.

    But Mueller cites DOJ policy that says one reason a president can be investigated even if he can’t indicted is that co-conspirators could be!

    Sammy Finkelman (db7fea)

  88. Not to make a threshold determination is something Mueller decided on his own.

    And the only reasons can be either or both that:

    1) His team was deeply divided on the question of wheter Trump committed a crime.

    AND/OR

    2) He wanted to protect the public from thinking the president is above the law. That is, Mueller thought president indeed was above the law, but he didn’t want the public to think so, because it would undermine public confidence in the principle of equal justice under law.

    So he avoided getting even close to that situation.

    Sammy Finkelman (db7fea)

  89. I think Dowd did that on his own without talking to Trump because Dowd clearly thinks tthat Trump might be guilty of something that Flynn might say, and Flynn has not said anything like that till today’s day, so thats not true, unless you think Flynn is still covering up for Trump, or is doing so as a byproduct of protecting himself.

    Dowd is clearly wither not talking to Trump or doesn’t know whether or not believe him. If he;’s not talking to rump about his guilt, he’s not talking to him about trying to prevent Flynn from testifying adversely to Trump either. And this is incoherent

    Sammy Finkelman (db7fea)

  90. protecting all our interests, if we can, without you having to give up any … confidential information.

    Not having to give up to Mueller any confidential information about Trump.

    (If he can do so while still protecting he interests of Flynn. Dowd woud like to see if both Trump nand Flynn’s interests can be protected, and if not, get aheads up, and in that context, he brings up the idea that Trump still likes him.)

    NOT:

    Not having to give up Trump’s lawyer;s any confidential information about his dealings with Mueller.

    .

    Sammy Finkelman (db7fea)

  91. *

    NOT:

    Not having to give up to Trump’s lawyers any confidential information about his dealings with Mueller.

    But:

    Not having to give up to Mueller any confidential information about Trump.

    Sammy Finkelman (db7fea)

  92. Add to that that Dowd was clearly acting solely as a mouthpiece

    Right, because Trump clearly told him to do it. How could be be clearly adding as a mouthpiece otherwise? For whom?

    Patterico (115b1f)

  93. Diwd was acting asa amouthpiece if Trump told him to do it. But maybe Mueller could not penetate attorney client privilege to determine if thatw as the case.

    Anyway, he clearly did thsi on his own, because Flynn’s had convinced him that Flynn might have incriinating evidence about Trump. That was not true, becasue has never said anything like that. (unless yout hink that Flynn is still expecting a pardon, and he is still hiding information detrimental to Trump about collusion.

    As of November 22,2017, had still not openly discussed much with his lawyers, so they didn’t know what he might be guilty of.

    Sammy Finkelman (db7fea)

  94. Trump’s denying he called Meghan MArkle nasty.

    Buzzfeed says:

    https://www.buzzfeednews.com/article/davidmack/trump-meghan-markle-nasty

    Asked Friday by the British newspaper the Sun about Meghan’s past comments, Trump said he was unaware of her criticism.

    “I didn’t know that,” he said. “What can I say? I didn’t know that she was nasty.”

    She had said iin a 2016 interview on The Nightly Show with Larry Wilmore “Of course, Trump is divisive. Think about just female voters alone, right?” and “You’re not just voting for a woman if it’s Hillary just because she’s a woman but certainly because Trump has made it easy to see you don’t really want that kind of world.” and that Trump was “misogynistic…and so vocal about it,” and that said she was considering remaining in Canada if he won.

    Sammy Finkelman (db7fea)

  95. Beldar, #82

    Thanks for the detailed explanation, not just in #82 but in your other posts, of these issues which still remain somewhat murky to me, not having any experience of why or what considerations prosecutors have in deciding when to charge or not charge potential defendants.

    I’m still curious why Mueller wouldn’t make the threshhold investigation re: Dowd. If Mueller was the anti-Trump crusader Trump’s defenders say, why wouldn’t Mueller indict Dowd for obstruction even if for whatever reason or reasons he could’t or wouldn’t bring charges against Trump? That would really ramp up the pressure for impeachment if there were charges against the president’s lawyer for (almost certainly) doing the president’s bidding, despite the lack of charges against the president himself. But your explanation of why Mueller may have made a declination decision and not discussed it in the report certainly makes sense.

    By the way, it was Scott Johnson who called the report a crock, not me.

    RL formerly in Glendale (40f5aa)

  96. Duly noted, and thanks RL.

    Beldar (fa637a)

  97. @96:

    Major premise:

    If Mueller was the anti-Trump crusader Trump’s defenders say, then he would have indicted Dowd for obstruction of justice.

    Minor premise:

    Mueller did not indict Dowd for obstruction of justice.

    Conclusion:

    Therefore Mueller was NOT the anti-Trump crusader Trump’s defenders say.

    QED.

    That doesn’t mean he didn’t have bad judgment, both as to facts and as to law, and as to what principles should be the basis of his decisons and as to what and how he should tell the public, or eevn that he wasn’t biased.

    But it does mean he wasn’t aone-minded anti-Trump crusader.

    Sammy Finkelman (db7fea)

  98. @ Patterico (#93): A hundred times a day, I act as mouthpiece for my clients without them having told me specifically what to do or how to do it. Usually they don’t know whht to do or how to do it; that’s why they hire me.

    You may be right: Trump could have been literally standing over Dowd’s shoulder, or even gripping Dowd’s throad with his tiny hands as he left this voicemail. But you are, again, speculating. I have no inclination to speculate, because what’s in the report is damning enough.

    Beldar (fa637a)

  99. (Your tell is the word “clearly.”)

    Beldar (fa637a)

  100. The soap box doesn’t work, nor the jury box or the ballot box, might be time to open up the cartridge box.

    mg (8cbc69)

  101. The important point is that Dowd wanted a heads up if what Flynn was going to tell Mueller implicated the president.

    Dowd could have believed that Flynn’s truthful testimony would do so, but Trump could not have believed that Flynn’s truthful testimony would do so, because in the end Flynn did not implicate Trump in anything.

    Major premise:

    If Flynn had any evidence that implicated Trump in a conspiracy with Russia, he would have said so, and Mueller would have said so in his report. (true at least to a 95% probability)

    Minor premise:

    Mueller did not cite Flynn as implicating Trump in anything.

    Conclusion:

    Therefore Flynn had nothing to say, true or false, that implicated Trump.

    QED.

    That is Theorem 1

    Theorem 2:

    Major premise:

    If Flynn had anything truthful to say that implicated Trump in a conspiracy with Russia, Trump would have known that.

    Minor premise:

    Flynn had nothing to say, true or false, that implicated Trump.

    Conclusion:

    Therefore Trump knew nothing that Flynn could say that implicated him

    QED

    Theorem 3 proves that Trump could not have told his lawyers that he feared Flynn would say something truthful about him that implicated him in s conpiracy with Russia.

    Theorem 4 proves that Dowd was nevertheless afraid of that.

    Theorem 5 proves that Trump’s lawyers did not feel he was being completely forthright with them,

    Theorem 6 proves that most likely Flynn’s lawyer were claiming (falsely) to Trump’s lawyers that he had advere information on Trump.

    Theorem 7 proves that the motives of Flynn’s lawyers were to try to scare Trump’s lawyers into persuading Trump to help him.

    Theorem 8 proves that didn’t happen.

    Sammy Finkelman (db7fea)

  102. It’s hard for me to give Dowd the benefit of the doubt because his client has a history of dominating his lawyers and asking them to do questionable things.

    DRJ (15874d)

  103. As for the argument that Mueller’s report would have been stronger if Dowd had been indicted, Cohen was Trump’s attorney. He was indicted after a referral by Mueller and pled guilty. If that isn’t enough to make the public accept that attorneys aren’t going rogue on Trump but he is directing them, I doubt one more indictment would matter.

    DRJ (15874d)

  104. Cohen pleaded guilty because he was guilty of a lot of financial crimes – his Clinton conne ted lawyer tried to find or createa Trump-related crime.

    The thing about Dowd being indicted is the question of whether or not that was a crime.

    I think what actually went on was this:

    Members of Mueller’s team disagreed with each other over whether or not the elements of obstruction of justice were fulfilled. Mueller was inclined to think there were some indictable offenses, but there was at least one dissenter. He decided not to declare that Trump had committed a crime wth regard ton anything where there was a good legal defense – on the law and sometimes on the facts.
    Amnd he doesn’t want to explain himself further.

    Now it might be simply that Mueller felt a president is above the law but did not want the spectacle of saying that, but maybe that itself hides another thing: that there was a dispute among his people about what constituted obstruction of justice.

    to say so,

    did not want to say the president is above the law, butto be dec

    Sammy Finkelman (db7fea)

  105. Did I miss Talk Like a Pirate day?!?

    Arrrrrgh police! Arrrrgh public servants! And ARRRRGH democracy!

    Beldar (fa637a)

  106. (Your tell is the word “clearly.”)

    I used it only because you had, in saying Dowd had clearly been acting as Trump’s mouthpiece.

    Patterico (115b1f)

  107. You may be right: Trump could have been literally standing over Dowd’s shoulder, or even gripping Dowd’s throad with his tiny hands as he left this voicemail. But you are, again, speculating.

    I am, that is true. But I feel pretty good about it.

    Patterico (115b1f)

  108. Can’t Keep Getting Away With This is banned commenter Steppe Nomad. He can’t stay away. I am torching his comments. BUH bye Steppe.

    Patterico (115b1f)

  109. Beldar, I have come to suspect that the persona (sic) you are referring to — the one who appears here with a different handle every day and a different IP with every comment — is a false flag. A Soros operative being paid to troll the internet and make Trump supporters look as bad as possible. Thankfully, I have come to recognize his style at a glance and just scroll past his dezinformatsiya. I prefer my own parodies of Trump supporters, just like I prefer my own coffee.

    nk (dbc370)

  110. Didn’t see your comment while I was typing mine, Patterico.

    nk (dbc370)

  111. 106. Beldar (fa637a) — 6/2/2019 @ 7:57 pm

    Did I miss Talk Like a Pirate day?!?

    Arrrrrgh police! Arrrrgh public servants! And ARRRRGH democracy!

    For the record for anyone reading this thread later:

    The explanation of the ARRRRGH is:

    The person whose comment before 106 was torched spelled the word “OUR” as “ARE” several times, using capital letters.

    Sammy Finkelman (db7fea)

  112. Beldar, I have come to suspect that the persona (sic) you are referring to — the one who appears here with a different handle every day and a different IP with every comment — is a false flag. A Soros operative being paid to troll the internet and make Trump supporters look as bad as possible. Thankfully, I have come to recognize his style at a glance and just scroll past his dezinformatsiya. I prefer my own parodies of Trump supporters, just like I prefer my own coffee.

    Wow, that’s a heck of a leap

    Time123 (441f53)

  113. I don’t know if he is paid but I think it is one person who posts under multiple names.

    DRJ (15874d)

  114. He’s for sure a troll, if he’s a troll because he’s just nuts, or if he’s trying to be a parody of a trump super fan I have no idea. But to go from what we see to

    1. He’s paid
    2. He’s paid by George Soros

    Is a weirdly huge leap

    Time123 (66d88c)

  115. 1. He’s paid
    2. He’s paid by George Soros

    Is a weirdly huge leap

    Sigh.

    nk (dbc370)

  116. BTW, Talk Like A Pirate Day is September 19. Mark yer calendars, mateys!

    nk (dbc370)

  117. NK, did I woosh on the joke?

    Time123 (66d88c)

  118. No problem, Time123.

    nk (dbc370)

  119. In my defense, i’m good at math.

    Time123 (dba73f)

  120. This troll actually tends to strike me as serious – the misspelling isn’t done to sound stupid – that’s probably the best he can do. he wants to sound a bit intellectual and it’s all over his head. Who he is trying to impress I don’t think we can tell. At least he’s not selling a Geritol substitute (iron is supposed to be good for you?) and using meditation instead of what Bob Dole used to adfvertise.

    I don’t think George Soros has any idea of what he is supporting any more. That would account for the contradiction between what he’s supporting in Eastern Europe and what he’s supporting in the United States. He’s probably a light touch.

    There would still be some organzation(s) connected to Soros, but a lot of what’s going on probably would not be best described that way. They may not have much of a connection to him. And there’s probably a lot of money not coming from him at all.

    Michael Avenatti wasn’t Soros sponsored I think but I do think Avenatti expected to get money (maybe through a case being thrown his way) but he didn’t. He became an embarassment and a danger and they cut him loose.

    That makes whoever is doing this or that a mystery but that’s better than saying it is all Soros. Soros was the evil genius behind currency speculation 25 and more years ago, and then he tried to liberalize the former Communist countries, but he’s not much now.

    Sammy Finkelman (102c75)

  121. If he is paid, odds are it is by the Russians.

    DRJ (15874d)


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