There were a lot of developments yesterday in the Flynn case, making it difficult to write about the recent Supreme Court arguments (short answer: Trump loses in New York, gets at best a partial and meaningless win with respect to Congress) or the FBI search warrant served on Richard Burr (related to his alleged insider trading on classified COVID information). We knew that Judge Sullivan was calling for amicus briefs, but yesterday he appointed, as an advocate against the Government’s position, a retired judge who recently co-wrote an op-ed in the Washington Post titled “The Flynn case isn’t over until the judge says it’s over.” And the order said something else, too:
Wow. I do not see sanctions for perjury for Flynn arising out of what has happened so far, by the way. (If he’s questioned again under oath, all bets are off.)
But with the publication of a story last night in the New York Times, Judge Sullivan is, I predict, about to go apoplectic.
A key former F.B.I. official cast doubt on the Justice Department’s case for dropping a criminal charge against President Trump’s former national security adviser Michael T. Flynn during an interview with investigators last week, according to people familiar with the investigation.
Department officials reviewing the Flynn case interviewed Bill Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan. They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court.
Let’s remind everyone what these notes were about. I wrote about them in this post, so for a full explanation go there. In short, Priestap attended a pre-interview meeting with Andrew McCabe and Jim Comey, and wrote: “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired? If we get him to admit to breaking the Logan Act, give facts to DOJ & have them decide. Or, if he initially lies, then we present him [redacted] & he admits it, document for DOJ, & let them decide how to address it.” This was trumpeted by the Flynndication crowd as proof that McCabe and Comey had a goal of getting Flynn fired. I said previously that this was nonsense:
[I]t’s obvious that Priestap is asking a rhetorical question here. He is contrasting two possible courses of action: a) telling Flynn what they have on him, or b) hiding it from him. He is arguing against the latter action, and invoking what he clearly thinks is an obviously improper goal (although as I will argue below I’m not sure it’s actually improper!) as a rhetorical move to show that the proposed course of action that he disagrees with is wrong. But the fact that Comey and McCabe choose the latter course of action is not an admission that getting Flynn fired is their goal.
Now I know the reaction of Trumpists is going to be: Priestap got caught with his hand in the cookie jar. Of course he’s going to lie and say it was nothing. That’s fine, but it’s not what he says. If the Government cited his notes in support of one scenario, and knew that he was offering an alternate explanation, and didn’t tell the judge that, the judge is going to be very, very unhappy.
And they did cite his notes. From the Government’s motion:
The context here is the Government’s extremely pro-defense recitation of the lead-up to the interview. The notes are presented as evidence in support of a larger narrative that the FBI was engaged in a rogue effort to set Flynn up. And yet, per the New York Times:
Mr. Priestap told the prosecutors reviewing the case … that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.
The department’s decision to exclude mention of Mr. Priestap’s interview in the motion could trouble Judge Sullivan, who signaled late on Tuesday that he was skeptical of the department’s arguments.
This is not the only evidence of dishonesty in the motion. Mary McCord (as I noted here) wrote an op-ed in the New York Times the other day disputing the way that the Government cited her interview as evidence in support of its dismissal motion. Contrary to what you may have read elsewhere, the Government’s motion repeatedly cites McCord’s statements (Exhibit 3) in numerous places at pages 14-17 of its brief, all in support of the argument that the statements were not material, in a brief in which (contrary to what you may have read elsewhere) the Government argues that the interview of Flynn was not justified: “Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said.” McCord explains that her words were used to argue that the interview was unjustified and Flynn’s lies immaterial, when she in fact believes the opposite:
The Barr-Shea motion to dismiss refers to my descriptions of the F.B.I.’s justification for not wanting to notify the new administration about the potential Flynn compromise as “vacillating from the potential compromise of a ‘counterintelligence’ investigation to the protection of a purported ‘criminal’ investigation.” But that “vacillation” has no bearing on whether the F.B.I. was justified in engaging in a voluntary interview with Mr. Flynn. It has no bearing on whether Mr. Flynn’s lies to the F.B.I. were material to its investigation into any links or coordination between Mr. Trump’s presidential campaign and Russia’s efforts to interfere in the 2016 election. … The materiality is obvious.
This is a pattern. The Government is repeatedly taking the words of witnesses and twisting them to support a conclusion with which those witnesses strongly disagree.
And the Government is not telling the judge any of this.
I don’t think Judge Sullivan is going to be pleased by any of this.