New Briefs in the Flynn Case Today
More briefs were filed in the Flynn case today.
First, we have Judge Sullivan’s response brief, which hammers home just how unbelievably radical it would be for the panel to grant this writ even though Judge Sullivan has decided nothing (except inviting amicus briefs, as the D.C. Circuit itself did, and issuing an (IMO) ill-advised OSC re contempt).
The rule calls for leave of court. That’s a provision that was added by the U.S. Supreme Court when the rule was promulgated. Leave of court means the court has a role in that decision. Exactly what the judge’s authority is, is an open question — but that he has *some* authority is beyond rational dispute.
And yet it’s being disputed.
Honestly, it’s almost like being in the Upside Down that we’re seeing such a ridiculous writ petition treated with this level of seriousness. I don’t blame Judge Sullivan or his lawyer for doing so; the panel hearing the petition has a track record for taking absurd Trumpy positions far more seriously than they ought to. But it’s frustrating because the correct answer is clear and obvious: the writ should be denied and Judge Sullivan should be allowed to proceed with the hearing.
Were Judge Sullivan to deny the Government’s motion, and Flynn to appeal, the case would be far more difficult and far closer. But this is not a close call. Not even remotely. The only reason it’s being treated as though it might be is because of the appellate judges involved.
I don’t like making predictions with such erratic jurists in control of the outcome. Were I to hazard any sort of prediction, it would be that the en banc court would take up any decision to grant the motion, while the full court would certainly take no action if the panel properly denies relief. But really, I’m out of the prediction business — so don’t take that as a prediction!
We also have a fiery amicus brief in the trial court from Judge Gleeson, the fella whom Judge Sullivan appointed to make the case against the Government’s position. Here’s the passage that is the most attention-getting:
The Court should deny leave because there is clear evidence of a gross abuse of prosecutorial power. Rule 48(a) was designed to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals. … That is what has happened here. The Government has engaged in highly irregular conduct to benefit a political ally of the President. The facts of this case overcome the presumption of regularity. The Court should therefore deny the Government’s motion to dismiss, adjudicate any remaining motions, and then sentence the Defendant.
Yowch! That is a stinging accusation. And I judge it to be entirely accurate. The main reason is because their stated reason for the dismissal request — a sudden about-face on the issue of the statements’ materiality — is laughably incredible:
That is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see. In asserting otherwise, the Government struggles mightily to argue that Flynn’s false statements neither affected nor could have affected the FBI’s investigation of his and his colleagues’ potential ties to the Russian government. Even taken on their terms, these contortions are riddled with legal and factual errors (and are contradicted by the Government’s position in other cases). But more fundamentally, under the governing law — as stated by the D.C. Circuit, this Court in this very case, the Government’s prior briefs in this case, and the Government’s briefs in many other recent cases — the facts on which the Government relies to undermine materiality are irrelevant.
They are changing their approach to the law for one person and one person only: a crony of the President. It’s about a corrupt a move as I have seen from DoJ as I can remember, and only the ignorant, the hopelessly partisan, or (most often) people sharing both characteristics are completely comfortable with it. The rest of us are sickened, but will be interested to see how arguments go on Friday.
This… seems like a lot of bunk. Gleeson, it seems, is citing a Havard Law article? Am I reading the citations right?
I thought the whole purpose of Rule 48(a) was to protect the defendant from prosecutorial misconduct… such as dropping the case without prejudice so that they can re-charge the defended to take a another bite of the case. That was in the footnote in Rinaldi.
The DOJ is dropping this case with prejudice due to Flynn’s statement being immaterial. That’s not changing their approach for one man… that’s actually following the law.
It amazes me that you continually ignore the prosecution’s numerous malfeasance. Is this because you are a prosecutor that you’re a little biased here? OR is it that you’re worried that if Flynn’s case get dropped that it somehow renders the Mueller report impotent?
How do you explain that the Flynn defense team (both original & current) never got to see the transcript when demanded?
whembly (c30c83) — 6/10/2020 @ 7:21 pmThe DOJ’s response to Gleeson and others is compelling:
whembly (c30c83) — 6/10/2020 @ 7:29 pmhttps://www.scribd.com/document/465152286/Reply-Brief-for-the-US
I admit to being ignorant, and probably am hopelessly partisan, but have no problem admitting that the mandamus petition should be denied, as, obviously, Judge Sullivan hasn’t ruled on the request for dismissal yet. When courts grant a writ of mandate, as they’re called here in less-formal California, they usually order the lower court to vacate its challenged order and to “enter a new and different order” that does something else. They don’t order the lower court not to do something that it might or might not do. Since Judge Sullivan hasn’t entered a substantive order yet, there’s no grounds to issue mandamus to set aside what he’s done.
Let’s assume it’s true that the DOJ’s about-face is because Flynn is a crony of the president. Isn’t it also true, at heart, that Flynn was prosecuted in the first place because he is a crony of the president? I’m no fan of Flynn but this whole case has seemed hopelessly political from the beginning. If the DOJ now wants to drop the whole thing, let it do so, and add its decision in this case to the list of issues to consider when you vote in November. I’m not “comfortable” with any of this, but don’t expect much better from the government in either a D or an R administration.
RL formerly in Glendale (40f5aa) — 6/10/2020 @ 7:36 pmDoes even matter to you that the man is innocent of the charges?
Nick Temple (008ee0) — 6/10/2020 @ 7:58 pmThe ones he’s plead guilty to multiple times, both in person and in writing? Those charges, or are these different charges?
Colonel Klink (Ret) (305827) — 6/10/2020 @ 8:03 pm@5
What about the fact that he sought to rescind his guilty plea?
whembly (c30c83) — 6/10/2020 @ 8:13 pmThen you haven’t been paying attention to a single thing I have written here.
It is a key purpose but very very explicitly and clearly not the only purpose or the “whole” purpose.
Patterico (115b1f) — 6/10/2020 @ 8:21 pmIt would if he were but he isn’t.
Patterico (115b1f) — 6/10/2020 @ 8:21 pmThat is pretty much the end of the story.
No. He was prosecuted because he lied to federal agents. Many many non-presidential cronies get prosecuted for the same crime, all the time.
I am not comfortable with having the rule of law be just another political football.
Patterico (115b1f) — 6/10/2020 @ 8:24 pmI think it’s garbage but I’m not surprised you like it.
Its only mention of Rinaldi ignores the key language I have cited here again and again that you seem to have forgotten about. It ignores the context of the issue arising after the plea has been accepted, asking how the prosecution can be forced to trial under the rule urged by Sullivan. It will likely appeal to two of these partisan judges just as it appeals to you, but I still think that they have to wait to see what Sullivan has done.
Patterico (115b1f) — 6/10/2020 @ 8:29 pmThat is key, here, isn’t it? The guilty plea. It makes the role of the prosecutor for the remainder of the case the thing that is for all practical purposes ministerial, since the judge is not bound by their sentencing recommendation and will impose sentence according to the presentence investigation report and the sentencing guidelines.
nk (1d9030) — 6/10/2020 @ 8:38 pmIn any pleading, has the prosecution ever claimed that the charges are being dismissed because Flynn is innocent?
DRJ (15874d) — 6/10/2020 @ 9:31 pmNo. He was prosecuted because he lied to federal agents. Many many non-presidential cronies get prosecuted for the same crime, all the time.
And, many many don’t. What accounts for this other than that many many prosecutors make such decisions, all the time.
beer ‘n pretzels (f7d8a8) — 6/10/2020 @ 9:35 pm#9. I’m also not comfortable with the rule of law being a political football, but that’s the impression I get from cases like this. I hope you’re right and I’m too cynical, but could it also be true that sometimes people lie to the FBI and are not prosecuted? Would it have been scandalous if the prosecutors back in 2017 had decided to cut Flynn a break and not bring charges? I mean these as real questions and not disguised attempts at rhetorical points — don’t know how the world of prosecutors and criminal law works. It feels like the original prosecutors wanted leverage against Trump and saw an opening to get it with Flynn, but that they could just as easily decided to let him go if they weren’t after Trump. But my feelings aren’t evidence of anything, and am willing to be corrected by facts.
Anyway, whatever one thinks of the ultimate merits of the decision to prosecute Flynn, the appellate court would have to twist logic and the law into the proverbial pretzel to grant the mandamus petition. Why even have district judges if the appellate courts aren’t going to let them do their job.
RL formerly in Glendale (40f5aa) — 6/10/2020 @ 9:37 pmMere factual innocence is no reason not to carry out a death sentence properly reached.
Davethulhu (b9acf0) — 6/10/2020 @ 10:43 pmThere have been politics played on both sides of this case; unfortunately, only one side gets routinely analyzed in the media.
The FBI made some embarrassing moves in this case and we don’t hear a lot about them. That is a shame but maybe in the post-Floyd world, law enforcement and the judiciary will be held more accountable.
Hoi Polloi (dc4124) — 6/11/2020 @ 4:57 amPatterico (or other lawyers) Does the motion to dismiss by the DOJ imply or state wrong doing, criminal or otherwise, on the part of the original prosecutors? It seems like that would have to be the case of the claims flynn and his supporters are making are true. IANAL but it seems to me like the DOJ wrote their motion to come as close as possible to saying that without actually having to say it but would love a professional opinion.
Time123 (235fc4) — 6/11/2020 @ 5:05 am@14, Based on the sentence that other people charged with Lying to the FBI in this investigation have gotten Flynn was likely facing probation. Analysis from Ken White was that a week in jail would be a harsh sentence for this.
Time123 (66d88c) — 6/11/2020 @ 5:11 am@8 Please explain how, once you have read the transcript of the call, that Flynn is guilty of the charge. The charge had him lying about talking about sanctions, the transcript says he talked about the expulsions. So he didn’t actually do what the charges say he did.
This is all about some one pleading guilty to charges after blowing millions of dollars on incompetent lawyers and having his family threatened with prison.
If Flynn had not plead guilty would you bring this case to trial?
Nick Temple (ba9065) — 6/11/2020 @ 5:27 am@19, Why did he lie to Vice President Pence about talking to the Russian ambassador?
Time123 (66d88c) — 6/11/2020 @ 5:39 am@19, Why did he lie to Vice President Pence about talking to the Russian ambassador?
Maybe because Pence is a Christian radical.
Hoi Polloi (dc4124) — 6/11/2020 @ 6:29 amNick Temple,
If you haven’t already closed your mind to the facts, read this.
DRJ (15874d) — 6/11/2020 @ 6:30 am“ Mere factual innocence is no reason not to carry out a death sentence properly reached.“
– Davethulu
Weirdly, I suspect that you are not joking, so I will say that such a position is ridiculous.
Leviticus (348b62) — 6/11/2020 @ 6:43 amNick, her’e a quote of Flynn actually talking about sanctions. Your summary is in error.
Time123 (235fc4) — 6/11/2020 @ 6:52 amkafka hold my beer
https://dailycaller.com/2020/06/10/steele-dossier-source-identity/
narciso (7404b5) — 6/11/2020 @ 6:58 am@20
You’re missing an important piece of context here.
The transcript itself shows that Kislyak brought up the expulsions and that Flynn was obviously trying to de-escalate.
At the time when Flynn was asked whether or not he discussed sanctions and asked about it by Pence and Spicer, the context there was with regards to the Obama financial sanctions. All without the benefit from even seeing the actual transcripts that the FBI had. Then, someone at the FBI leaked the transcript that showed the word “sanctions” without having the full contextual conversation that was obviously about the expulsions of the Russian diplomats.
So, to answer your question, Flynn never believed he was guilty of lying and that Pence/Spicer never had the benefit of seeing the actual transcript so had to rely on the credibility of the FBI making that case. Remember, the country was still losing their ever loving minds that Trump won the election and the media hype about all-things-Russia was dialed in at 11.
Both his original lawyers as well as current has demanded over and over to see that transcript, which the prosecution repeatedly refused. Doesn’t that, on its face, strike you as odd? And that’s not even addressing the fact that the original 302 of the Flynn-FBI interview still hasn’t been given to the defense.
Additionally, the charging documents stipulated that Flynn lied about the financial sanctions, as BOTH the charging document and the Mueller report defined “sanctions” as Obama’s executive order applying financial sanctions (they even listed out the EO #) and not anything about the expulsions.
whembly (c30c83) — 6/11/2020 @ 7:13 amSort of. They say: “The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.” Since materiality is an element of the crime, this amounts to a claim that they do not believe he is guilty. It’s a patently absurd and corrupt claim, but that’s the claim.
Patterico (115b1f) — 6/11/2020 @ 7:20 am@24 Time123 – that conversation was talking about the expulsions. Flynn was concerned that Russia would escalate and kick out even more US diplomats than what the Obama administration did.
whembly (c30c83) — 6/11/2020 @ 7:21 amThere is no bigger reductio ad absurdum than “What if Donald Trump was the President?”
nk (1d9030) — 6/11/2020 @ 7:23 amOdd that the Government is not making whembly’s bizarre argument.
Patterico (115b1f) — 6/11/2020 @ 7:23 amThe prosecutors committed a fraud as big as the stevens case, the only differen e is the victim isnt dead.
Narciso (7404b5) — 6/11/2020 @ 7:24 am@30 Flynn’s defense is making that argument. The Government’s filing read to me that they’re defending their Article II powers and that ensuring that the defendant’s rights are protected.
It’s odd to me that that you continually ignore the weird oddities of this case.
Why can’t you hold more than one position at the same time? It’s okay to believe:
-Trump and his orbit shouldn’t be in office
and
-Flynn was railroaded because the previous administration was terrified what Flynn/Trump would do to their favored policies.
I have no issue with you holding the former and you’ve made compelling arguments substantiating that… what I have trouble wrapping my head, is that you won’t even consider the possibility of the latter.
The Obama administration (and anti-Trump officials post inauguration) literally weaponized the powers of the government for pure partisan reasons.
That was YOUR argument in support of impeachment over the Trump-Ukraine ordeal.
I can’t square your impeachment position to your wand-waving of the Obama administration’s (and anti-Trump officials) malfeasance here…
whembly (c30c83) — 6/11/2020 @ 7:43 amThe weird oddity is that Trump has not straightforwardedly pardoned Flynn but has, instead, chosen to corrupt the DOJ prosecutorial process. Is he getting some sick kick out of making Barr and Shea jump through hoops, lie down, roll over, and sit up and bark?
nk (1d9030) — 6/11/2020 @ 7:51 amCorrupt prosecutors like grack need to be held accountable.
Narciso (7404b5) — 6/11/2020 @ 7:55 amI’m not a lawyer, so how common is it for a Federal District Judge to act like sullivan? He’s refused to accept the DoJ’s brief that the case should be closed and Flynn was unfairly charged and instead has demanded an outside left-wing retired judge review the case and in effect file a prosecution brief for charging the Defendant with contempt/perjury.
Then, when asked by the Court of Appeals to explain his actions, he hired an outside law firm to write a response. That’s strikes me as incredibly odd. Shouldn’t a judge be able to write his own response?
And doesn’t all this show that Sullivan is not an fair-minded, independent Judge but has some weird, probably left-wing, bias against the defendant?
All his actions strike me as unusual and strange, but then I’m not a lawyer.
rcocean (fcc23e) — 6/11/2020 @ 8:01 amSo Flynn’s lies have revealed how the DOJ unfairly targets GOP politicians?
DRJ (15874d) — 6/11/2020 @ 8:02 amrcocean,
It is as common for the Judge to act this way as it is for the DOJ to dismiss charges against someone who entered a guilty plea. In other words, not common at all.
DRJ (15874d) — 6/11/2020 @ 8:04 am#8 – So, what IS Flynn guilty of? If he “lied” to the FBI, was it a material lie? What impact did it have on anything? I’m not even clear on what Flynn’s lie was, since we don’t have have original FBI notes of the conversation and even those were edited and rewritten for weeks after the interview.
Barr and the DOJ has decided Flynn should go free because the case against him was unfair and botched. In fact, it looks like the McCabe/Stzork went after Flynn for no reason other than to hurt the Trump administration.
So, why should Flynn continue to suffer?
rcocean (fcc23e) — 6/11/2020 @ 8:08 amI’m not sure what you mean by “accept.” He accepted the brief, which advocated a result almost entirely (perhaps entirely) without precedent, given all the circumstances, and was clearly done for corrupt political reasons. Then he set a proceeding to make a judgment under Rule 48, which requires leave of court.
Patterico (115b1f) — 6/11/2020 @ 8:09 amMy understanding is that it’s happened in similar circumstances for a judge to have a lawyer represent them. It would be more common for the lawyer of one of the sides to respond. The lack of such an figure is part of what makes this unusual. The situation doesn’t come up often but it’s not unheard of for a court to have outside counsel.
Time123 (66d88c) — 6/11/2020 @ 8:09 am@20 Lying to Pence was enough to get him fired. I never claimed that Flynn should still be working as a national security advisor, or that he was a good choice for that position. If he couldn’t figure out his lawyers were incompetent assholes before he sold his house to pay for the bastards he has no place in national security.
@24 the charge is that he lied about talking about sanctions in some material way, the conversation was about expulsions. Since the transcript doesn’t match what he is charged for he pled guilty to something he didn’t actually do.
I understand that this is the legal system and justice has nothing to do with it.
Would anyone here take this case to trial at this time with those charges?
Nick Temple (ba9065) — 6/11/2020 @ 8:10 amI see zero malfeasance in interviewing Flynn. I think it would have been an absolute dereliction of duty not to interview him, and any contrary opinion is partisan noise.
Patterico (115b1f) — 6/11/2020 @ 8:11 amSullvan seems to be a member of the #resistance, and continuing to persecute General Flynn seems to be his way of helping the cause. He’s shown himself to be partisan and not a neutral judge. The Appeals Court – at the very least – needs to reassign this case.
rcocean (fcc23e) — 6/11/2020 @ 8:11 am“Weirdly, I suspect that you are not joking, so I will say that such a position is ridiculous.”
I’m quoting Justice Scalia. While I am no Sclalia fan, the quote isn’t as bad as it sounds. He was saying that
Davethulhu (8ca291) — 6/11/2020 @ 8:13 amHe’s guilty of this.
Based on how they’ve defined ‘material’ previously, yes.
This should be an element of ‘material’. It’s not. Barr/Trump could change DOJ policy today and order them to drop all cases where it’s not. Their failure to do so what makes this corrupt.
Barr and the DOJ has decided Flynn should go free because the case against him was unfair and botched.
I think the way ‘material’ is defined is unfair and should be corrected for all defendants. The choice to only do so for the president’s friend is corrupt.
Time123 (235fc4) — 6/11/2020 @ 8:15 amThe sanctions included the expulsions and that is how Flynn’s Statement of Offense described it.
Patterico (115b1f) — 6/11/2020 @ 8:15 am#42 I’m not even clear at this point, WHY the FBI needed to interview Flynn. They had all his phone call transcripts. They knew what he was telling the Russians. So, what did the interview accomplish. They had no basis for another charge. Flynn didn’t commit any crime in talking to the Russian Ambassador, and all expressed words/views were within the bounds of normal diplomatic discussions. We have the Discussion transcripts. There’s no there there.
rcocean (fcc23e) — 6/11/2020 @ 8:15 amI see zero malfeasance in interviewing Flynn.
Agreed. I do see some potential malfeasance in the way they documented the interview.
Hoi Polloi (dc4124) — 6/11/2020 @ 8:16 am#46 so what? Flynn said – according to the FBI (which they can’t prove) – he didn’t talk about sanctions when he did. And? There was no criminal investigation that was impacted by that so-called lie. The FBI Had the transcript. They knew what Flynn had said. And nothing he said resulted in any criminal investigation or was illegal in any way.
There was no material impact because the only reason the FBI talked to Flynn was to entrap him in something so they could charge him with Lying to the FBI. And we don’t even know if he LIED. There is no tape of his interview. We don’t even have the contemporaneous notes. Further, the person who wrote up the notes hated Trump and was trying to hurt Flynn because it would hurt Trump.
This case is bogus and should be dropped.
rcocean (fcc23e) — 6/11/2020 @ 8:21 amrcocean, Again, the definition of material doesn’t require that the lie impacted the investigation. You keep saying that it does, but that’s not the case.
Time123 (235fc4) — 6/11/2020 @ 8:29 am@42
You mean, the same interview where even the two agents AND Comey surmised that Flynn didn’t lie? That one? When crossfire razor was closed at the time of the interview (it was already signed off for closure)? If this interview was so important, why didn’t the FBI then simply open up a new case? If that call was so concerning, regarding an incoming administration NSA official, you would think they’d make sure all the “i’s” are dotted and “t’s” crossed to the nth degree……and yet, this doesn’t seem even a little bit hinky to you?
What about the prosecution refusal to disclose the transcript to the defense team? (the government released correspondences between the prosecution and Flynn’s original lawyers, and even THEN they demanded to see the transcript by arguing that Flynn didn’t lie. All of this is in Powell’s plea withdrawal filing).
What about the prosecution refusal to disclose the original 302?
You also handwave the unwaivable conflict that Flynn’s original attorneys had, in that they saw what happened to Flynn’s associate’s FARA case. That lawfirm was also a party to Flynn FARA filings that presented a major conflict of interest in the defense of Flynn. It would’ve been to their best interest for Flynn to plead out, and at the time he wasn’t facing any jail time.
You also handwave the apparent threat of prosecution of Flynn’s son by the Mueller team by theorizing a innocuous explanation. Which is at odds with the aggressive, zealous nature of the Mueller team.
Does any of this seem hinky at all? Is your position that there’s no iota of malfeasance here at all?
whembly (c30c83) — 6/11/2020 @ 8:54 am@46
That’s meaningless because that was what was required by the prosecution in order to secure the plea deal.
The transcript itself proves that Flynn and Kislyak were discussing the expulsions of the Russian diplomat.
whembly (c30c83) — 6/11/2020 @ 8:57 am38. rcocean (fcc23e) — 6/11/2020 @ 8:08 am
That doesn’t credit them with having any genuine national security concerns about Flynn, and wanting him out of office as a result.
Sammy Finkelman (fe9fb2) — 6/11/2020 @ 9:15 am@53
Don’t ignore that McCabe had pre-existing animus towards Flynn regarding his support on behalf of a decorated counterterrorism agent who accused McCabe of sexual discrimination:
https://www.realclearpolitics.com/2017/06/28/did_fbi_retaliate_against_flynn_by_launching_russia_probe_414067.html
And we all know that Stzrok was virulently anti-Trump and was eventually fired from the FBI due to misconducts.
I don’t put much stock on whether they were “genuine national security concerns about Flynn”.
whembly (c30c83) — 6/11/2020 @ 9:22 amwhembly (c30c83) — 6/11/2020 @ 7:13 am
Initially, they had on;y what the FBI said, although NSC lawyer John Eisenberg went over to the FBI to look at the transcript. But, in conjunction with the second illegal leak, the FBI took the transcripts to the White House on February 10 and showed them to a number o people including probably Mike Pence. Flynn was questioned and his answers weren’t satisfactory.
a lightly redacted version has now been declassified, sent to Congress and released by a Congressional committee.
Sammy Finkelman (fe9fb2) — 6/11/2020 @ 9:23 am47. rcocean (fcc23e) — 6/11/2020 @ 8:15 am
It gave them first hand information that Flynn lied about what he said in he calls. All they had before was Mike Pence and the campaign claiming that Mike Flynn said they didn’t discuss sanctions.
Sammy Finkelman (fe9fb2) — 6/11/2020 @ 9:26 am@56
Sammy, both Pientka and Strzok initially didn’t believe Flynn lied to them. Comey is also on record reiterating that.
The rationale for this interview is extremely weak, especially in light of the fact that the transcript wasn’t shared with Flynn if they were wanting clarification of the conversation. The fact that the transcript wasn’t shared speak to other ulterior motives for wanting this interview.
whembly (c30c83) — 6/11/2020 @ 9:30 amAccording to the Republicans on the House Intelligence Committee:
The agents thought Flynn showed no PHYSICAL indicators of deception — no sweating, stammering, fidgeting, etc. Maybe this means Flynn was not lying but was confused about what he said in earlier conversations. Maybe it means his military training makes it hard for people to read his body language. Or maybe he is a good liar.
DRJ (15874d) — 6/11/2020 @ 10:57 am@58 Lots of maybe there to use that as the basis to charge him dontcha think?
whembly (c30c83) — 6/11/2020 @ 11:05 amMcCabe also then confirmed this to the Intelligence Committee, according to the report…
Maybe Flynn was just lacking in candor… like McCabe.
beer ‘n pretzels (e5f418) — 6/11/2020 @ 11:08 amFlynn and the Trump Transition Team had a good reason to not want anyone to know what he said to Kis lyak. They did not want to start off a new Presidency by looking like they were undermining the prior President in foreign affairs, even if they were and/or even if they felt they had a good reason for doing it. Someone left Pence out of the loop, which probably happens a lot, and Flynn tried to cover it by lying. We know that because he repeatedly admitted in court that he lied.
DRJ (15874d) — 6/11/2020 @ 11:09 amYou rely on agents’ initial impressions of physical appearance in deciding whether Flynn lied as opposed to his actual words and admissions in court? I call that cherry-picking but you ended up with very few cherries to show for it.
DRJ (15874d) — 6/11/2020 @ 11:13 amWhat Flynn told the FBI he said to Kislyak and what he actually said were inconsistent, and it was inconsistent on important points.
Is he just feeble-minded and can’t remember things from day to day? No, because he had just told Pence and Sean Spicer that he did not talk to Kislyak about sanctions. He told them knowing they might repeat it publicly. My guess is he felt powerful as a part of the new President’s team.
DRJ (15874d) — 6/11/2020 @ 11:20 am@62
No. I’m relying on the defense efforts to withdraw the plea in the face of additional information facilitated by Jensen’s review.
There’s no cherry picking here.
whembly (c30c83) — 6/11/2020 @ 11:23 am@63
Without having the benefit of been shown that transcript.
whembly (c30c83) — 6/11/2020 @ 11:24 amThen we should all want Judge Sullivan to have a hearing on this and expose the truth of what happened in the Flynn prosecution.
DRJ (15874d) — 6/11/2020 @ 11:24 amHe was a party to the telephone conversation. He could say he knew what was said or he could say he didn’t remember. He said he knew what was said and it wasn’t about sanctions, but it was.
DRJ (15874d) — 6/11/2020 @ 11:26 am@66
Both the Defense and the Government don’t have any conflict anymore since the DOJ is dropping the case.
Had the DOJ refused to drop the case, you are absolutely right Sullivan should allow for the withdrawal and conduct the hearing.
whembly (c30c83) — 6/11/2020 @ 11:31 am@67
But that isn’t completely true.
According to the transcript Kislyak himself did bring up the issue of sanctions during the call, though Flynn didn’t engage him in a conversation on the topic. That’s not really having a “discussion” about the sanctions.
Flynn raised the issue of the expulsions, which is technically a separate issue from sanctions, though both were announced at the same time. He asked for “cool heads to prevail” and for Russia to only respond reciprocally, as further escalation into a “tit for tat” could lead to the countries shutting down each other’s embassies, complicating future diplomacy.
Flynn was literally the one guy here trying to lower the temperature here.
The question about the sanctions at the time of the interview and Pence looks far likely to be about the financial sanctions levied by the Obama administration. Without the benefit of seeing the transcript during the interview by the FBI to remind Flynn, it’s easy to “read between the lines” here in that Flynn was objectively remembering about the expulsions, which the actual transcripts substantiates, not some substantial conversation regarding the financial sanctions.
Is it so hard to believe, that Flynn may not have remember exactly what the conversation was about when interviewed by the FBI?
whembly (c30c83) — 6/11/2020 @ 11:41 amHell Bill Prestep, the FBI head of counterintelligence, wrote a note saying he told other officials to “rethink” the approach.
“What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” he wrote, noting, “We regularly show subjects evidence.”
https://www.courtlistener.com/recap/gov.uscourts.dcd.191592/gov.uscourts.dcd.191592.188.0_6_1.pdf
Obviously they didn’t listen to him..
This is another example of exculpatory evidence withheld by the prosecution discovered by Jensen.
whembly (c30c83) — 6/11/2020 @ 11:46 am63. DRJ (15874d) — 6/11/2020 @ 11:20 am
My guess is he was afraid of the Logan act (he’s not a lawyer) and also knew he had spoken a little but without authority (although he did not commit Trump to anything)
When questioned by the FBI and asked if he said specific things that came from the conversation, Flynn evidently realized that the FBI had a recording and started saying his memory was not so good.
Strzok later wrote (and changed the other guy’s 302 also) that he was truthful. This was because Comey, IIRC, had questioned him if he saw physical signs of deception. So he knew what the Director wanted.
I don’t know when Strzok wrote the final versions of the 302s. It might have been after Trump asked Comey if he could see his way toward letting Flynn go.
But he sent a message to Lisa Page on Feb 10 about altering the other guy’s 202 but trying to retain some of that person’s language so it looked like something he wrote.
Trump didn’t ask until Feb 14. (and this was not the main topic of the conversation, which was a story that had appeared in the New York Times that day, Feb 14) Maybe Strzok revised the 302s more than once. at least once before Feb 10 and once later – maybe he kept on working on them.
Needless to say, things like that are not supposed to be done.
It is known that the FBI changed what it leaked to CNN immediately after the Feb 14 conversation.
At 6:25 am February 15, Zero Hedge has this: (that’s Feb 15 in spite of the URL saying Feb 14)
http://www.zerohedge.com/news/2017-02-14/mike-flynn-may-face-felony-charges-lying-fbi
But by 10 pm Zero Hedge reports:
http://www.zerohedge.com/news/2017-02-15/fbi-reportedly-will-not-pursue-charges-against-cooperative-and-truthful-mike-flynn
Or see:
https://mobile.twitter.com/jimsciutto/status/832013379124486148?p=v
Sammy Finkelman (fe9fb2) — 6/11/2020 @ 11:49 amThe Russian retaliation that everybody was concerned about was expulsions of U.S. diplomats from Russia.
Putin suddenly deciding not to do that and then Trump saying Putin made a smart decision (something like that) is what stated this whole little investigation,
What deal had Putin and Trump worked out, the entire Obama administation wondered.
Sammy Finkelman (fe9fb2) — 6/11/2020 @ 11:56 amWrong.
The Statement of Offense alleges Flynn made a false statement regarding discussion of the “U.S. Sanctions” with Kislyak.
The definition of “U.S. Sanctions” in the Statement of Offense is limited to Executive Order 13757:
Executive Order 13757 concern sanctions imposed on a defined list of persons, and has nothing to do with the diplomat expulsions:
The expulsions were promulgated by a separate statement from Obama on the following day.
LC (906b8f) — 6/11/2020 @ 1:43 pm> The sanctions included the expulsions and that is how Flynn’s Statement of Offense described it.
> Patterico (115b1f) — 6/11/2020 @ 8:15 am
Wrong. Sanctions (as defined by Statement of Offense) were established by Executive Order 13757 –
see Statement of Offence here
https://www.scribd.com/document/366071735/Flynn-Statement-of-Offense#fullscreen&from_embed
Here is Executive Order 13757
https://www.treasury.gov/resource-center/sanctions/Programs/Documents/cyber2_eo.pdf
Show us where in EO 13757 does it mention expulsions of Russian diplomats?!
Just highlight a specific section in EO 13757 where expulsion of Russian diplomats is mentioned.
That is all we want to see. Do it.
>> Does even matter to you that the man is innocent of the charges?
> It would if he were but he isn’t.
> Patterico (115b1f) — 6/10/2020 @ 8:21 pm
Oh, yeah? And how do you know he is guilty? Let me guess, he pleaded guilty? Sure, like
innocent people never plead guilty. Hint, innocent people do plead guilty plenty.
E.g. there was a guy by the name Brian Banks; was wrongly accused of rape; instead
of being convicted and going to prison for 40 years he took a plea deal and did only
5 years. Accuser later confessed she made up the story
https://www.latimes.com/sports/la-xpm-2012-may-24-la-sp-brian-banks-20120524-story.html#:~:text=A%20Los%20Angeles%20County%20Superior,of%20Wanetta%20Gibson%2C%20an%20acquaintance.
Or let me guess, the FBI said he was guilty? Sure, sure. Like “Your honor, the defendant
KK (60b10f) — 6/11/2020 @ 1:59 pmis obviously guilty. Because the police would not have arrested him if he wasn’t guilty”.
They clearly discussed expulsions. Thus, Flynn cautioned Kislyak to tell the Russian leaders not to “escalate” expulsions so, for instance, if Obama expelled 30 then Russia might expel 60. Is it your position that Obama’s sanctions only involved expulsions (and maybe some financial issues that you seem to view as unimportant, at least to the Trump people)? If so, is it your position that all of the following statements by Flynn to Kislyak involved expulsions and nothing else?
1. “Do not, do not uh, allow this administration to box us in, right now, okay?”
2. “Make sure you, make sure that you convey this, okay?”
3. “… over this current issue of the cyber stuff … what I would ask Russia to do is to not … to only make it reciprocal.”
4. “Make it reciprocal. Don’t — don’t make it — don’t go any further than you have to. Because I don’t want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?”
DRJ (15874d) — 6/11/2020 @ 2:25 pmI view expulsions and sanctions as a package. Flynn wanted to moderate the Russian response to make it easier for Trump and Putin to go forward in 2017 without baggage from the Obama sanctions/expulsions.
It amuses me that you do not see them as a package and that you seem to think they have a different meaning/impact vis a vis Flynn. I can’t imagine why you think expulsion but not sanctions was paramount to Flynn’s response or that, if that were the case, that it helps Flynn here. But you clearly do, or you are quibbling to avoid more substantial issues.
DRJ (15874d) — 6/11/2020 @ 2:36 pm@75
It was over expulsions and to NOT escalate to such a degree that would force the Obama administration to retaliate again to such a degree that ties the hands of the incoming administration.
That transcripts literally shows Flynn trying to lower the temperature down.
whembly (c30c83) — 6/11/2020 @ 2:40 pmClearly, yes, but as to expulsions and all sanctions.
DRJ (15874d) — 6/11/2020 @ 2:47 pm@76
But the transcript shows Flynn’s concerns was over the expulsions.
Linking the his expulsions conversations to the overall EO Sanctions is the same way that the Mueller team determined that Flynn lied. That’s the “hook” and they could ONLY make that case by preventing the defense access to the original transcripts.
Had the defense (Covington and Powell) had gotten access to this transcript in the beginning… no competent attorneys would recommend Flynn to taking the plea deal. Even the DOJ’s dismissal filing argued that in light of these new exculpatory evidence, they didn’t have the confident that they’d prevail in court to prove beyond a reasonable doubt.
whembly (c30c83) — 6/11/2020 @ 2:48 pmAssume Flynn was only talking to Kislyak about “expulsions.” The expulsions were part of Obama’s sanctions on Russia. If Flynn were asked if he discussed sanctions with Kislyak, it would be ludicrous if he answered No because he “only” discussed expulsions. Expulsions were sanctions.
DRJ (15874d) — 6/11/2020 @ 2:50 pmI guess those defense attorneys never talked to their client about what he discussed with Kislyak.
DRJ (15874d) — 6/11/2020 @ 2:52 pmIf they didn’t, then I agree that is malpractice. But we both know they did.
DRJ (15874d) — 6/11/2020 @ 2:53 pmIf Flynn claims malpractice, it opens the door to his attorneys discussing what Flynn told them. I wonder if he told them the truth?
DRJ (15874d) — 6/11/2020 @ 2:54 pmI think Covington & Burling were his first attorneys. Sidney Powell is current counsel.
DRJ (15874d) — 6/11/2020 @ 2:57 pm77… c’mon, whembly, we all know how successful 0bama was on foreign policy, especially with the Russians. The outgoing administration needed only the thinnest of pretenses to spy on the incoming, duly elected POTUS, don’t harsh the narrative.
Colonel Haiku (2601c0) — 6/11/2020 @ 3:16 pm#80
Sure, in a technical sense. But the context of the transcripts Flynn was obviously concerned about any potential escalation of the expulsions.
He was asked about it weeks later in a time that you’d understood would be a blur for all participants, without the benefit of being shown the transcript that the FBI normally does (see Bill Priestep’s notes ““We regularly show subjects evidence” https://www.courtlistener.com/recap/gov.uscourts.dcd.191592/gov.uscourts.dcd.191592.188.0_6_1.pdf) he wasn’t completely sure. Funny thing… even the McCabe’s notes mentioned that Flynn stated “You listen to everything they [Russian representatives] say”.
This was the work of an overzealous prosecution team (Weisman/Van Grack) seeking a scalp to justify the special counsel. The *ONLY* way the prosecution secured a guilty plea, was because they refused to provide the transcript. Not to mention that his son was threatened and that his original attorney’s were gravely conflicted.
#81- #84: Please read the 1/29/20 filing… it’s only 12 pages (note this was before the transcript being declassified):
whembly (c30c83) — 6/11/2020 @ 3:48 pmhttps://www.documentcloud.org/documents/6885791-Gov-Uscourts-Dcd-191592-160-23.html
#81-#84: the motion to withdraw on 1/14 goes into more details:
whembly (c30c83) — 6/11/2020 @ 3:51 pmhttps://www.courtlistener.com/recap/gov.uscourts.dcd.191592/gov.uscourts.dcd.191592.151.0_2.pdf
> DRJ :
> I view expulsions and sanctions as a package.
You may view them as a package but they really weren’t. They were two separate actions by Obama.
EO 13757 imposed visa bans, assert freezes, etc. on a few Russian deep state individuals.
You may feel good about slapping sanctions on some FSB colonel, but it is largely meaningless.
Do you think said FSB colonel has any US assets? Nope. Do you think said FSB colonel wants
to go to Disneyland in Florida and needs a US visa? I don’t think so.
Expulsions were the big thing. Sanctioning a few Russian individuals who have no US connection
is an emotional feel-good, but meaningless thing. That is why Flynn and Kislyak talked about
expulsions and not sanctions. They are not stupid.
> Flynn wanted to moderate the Russian response to make it easier for Trump and Putin to go
> forward in 2017 without baggage from the Obama sanctions/expulsions.
So you think it is a bad idea to avoid escalation with a nuclear superpower? Well, tell us where
does this escalation end? At a thermo-nuclear exchange? You want to die in a nuclear holocaust?
Do you have a death-wish? You want to play Russian roulette with your life?
Why don’t you write an essay “It is totally in the interest of American people to escalate a
confrontation with a nuclear superpower”. I want to read it. Should be fun.
> It amuses me that you do not see them as a package and that you seem to think they have a different meaning/impact vis a vis Flynn.
See above. Expulsions were the big thing. Sanctioning a bunch of Russian siloviki is a
superficial feel-good thing. Nobody really cares about that. Nobody is hurt by it.
Certainly not said Russians.
> The expulsions were part of Obama’s sanctions on Russia.
No. A charging document (as Criminal Information that is the charging document under which Flynn
KK (60b10f) — 6/11/2020 @ 5:13 pmwas charged) is a precise legal document; the extreme opposite of “informal”.
Lawyers can spend hours arguing and negotiating over a single word in it. The Statement of
Offense defines sanctions as EO 13757. There is nothing about expulsions in it.
If the prosecutors were sloppy and careless, fine, admit it.
Don’t BS us with “oh they are same thing”. They are not.
The expulsions and sanctions were announced in the White House Statement on Dec 29. EO 13757 was issued on Dec 28 but the Annex listing the details to the EO was not released until Dec 29. Obama’s Statement described sanctions, expulsions and other actions but also said they were “not the sum total of our response to Russia’s aggressive activities.” Flynn did not talk to Kislyak until Dec 29 (they talked 5 times) and the Trump team was briefed before Obama released the EO or Statement.
DRJ (15874d) — 6/11/2020 @ 6:16 pmKK,
I am curious where you got your ideas. You realize that EO 13757 is not part of the criminal law or charges filed against Flynn, right? It is part of the factual background for the charges.
DRJ (15874d) — 6/11/2020 @ 8:35 pmKK,
I am curious where you got your ideas.
Sputnik.
nk (1d9030) — 6/11/2020 @ 9:19 pm