The inevitable end result of our last 56 years

[James DiEugenio]

Let me be specific about my last comment.

The FBI did not tell Flynn about Rule 1001, that is about being liable for a crime if he misrepresented the facts.

They then discouraged him from calling a lawyer. This was part of the concept of misleading him about the point of the interview.

There are no notes. When there should have been one guy writing them.  The early 302's have disappeared, and it took over three weeks to do the final one with people revising it who were not there.

Does one have to draw a picture to connect the dots?

If Flynn had been advised of Rule 1001 he would have most likely called a lawyer. The FBI did not want any counsel there. Isn't that obvious?

The FBI then fouled the evidentiary trail by not taking notes (or making them disappear), and then revising the 302 and letting others participate in it.

This was the point of McCarthy's articles and why they are valuable. That the FBI consciously violated established procedure in order to nail Flynn.  And it was preplanned.

It was an ends justifying the means strategy.

As I have said, I did not like Dick Nixon, but when I found out what the CIA had done to get him, I objected to that also.

Edited May 13, 2020 by James DiEugenio

[Cliff Varnell]

16 minutes ago, James DiEugenio said:

Let me be specific about my last comment.

The FBI did not tell Flynn about Rule 1001, that is about being liable for a crime if he misrepresented the facts.

Standard operating procedure.

16 minutes ago, James DiEugenio said:

They then discouraged him from calling a lawyer. This was part of the concept of misleading him about the point of the interview.

So that justifies Flynn lying to both the FBI and VP Pence?

16 minutes ago, James DiEugenio said:

There are no notes. When there should have been one guy writing them.  The early 302's have disappeared, and it took over three weeks to do the final one with people revising it who were not there.

Does one have to draw a picture to connect the dots?

That doesn’t change the fact Flynn lied.

16 minutes ago, James DiEugenio said:

If Flynn had been advised of Rule 1001 he would have most likely called a lawyer. The FBI did not want any counsel there. Isn't that obvious?

The FBI then fouled the evidentiary trail by not taking notes (or making them disappear), and then revising the 302 and letting others participate in it.

This was the point of McCarthy's articles and why they are valuable. That the FBI consciously violated established procedure in order to nail Flynn.  And it was preplanned.

The FBI consciously violated established procedure repeatedly to deny Hillary Clinton the Presidency.

DiEugenio can’t even bring himself to admit the obvious.

16 minutes ago, James DiEugenio said:

It was and ends justifying the means strategy.

As I have said, I did not like Dick Nixon, but when I found out what the CIA had done to get him, I objected to that also.

Nixon tried to gain political leverage over the CIA in order to make the Agency more loyal to him.

Trump is playing the same game with both the intel and law enforcement communities.

He’s got a fine cheerleader in Jim DiEugenio.

[Jeff Carter]

1 hour ago, Cliff Varnell said:

Why the Flynn Interview Was Predicated
https://www.lawfareblog.com/why-flynn-interview-was-predicated

The Lawfare blogger does not share relevant information.

First, the conversations with Kisylak did not reveal a quid pro quo or any kind of “deal”, and were not in themselves inappropriate or illegal, or relevant to Flynn’s counter-intelligence probe - which had uncovered “no derogatory information” whatsoever. The contact with the chief Russian diplomat was not in itself a reasonable source of suspicion. As the FBI in concert with the office of DNI conceded when they grasped at the Logan Act straw.

Second, the Logan Act was a non-starter because, as part of a presidential transition team, Flynn was not a “private citizen” under the terms of the Act.

Third, the controversy with Pence had no influence on the McCabe/Comey decision to not close the CI file as it occurred a full ten days later. Keeping the file open was justified solely by the Logan Act.

Fourth, the Motion to Dismiss specifically rejected the “counter-intelligence purpose” of the Flynn interview, rather than “ignore” it as the author claims.

Fifth, the FBI defied clear instruction that Flynn, as national security advisor, needed to be informed of a C/I investigation, and any interview with him had to be arranged through the White House Counsel.

All of the above inform the central arguments of the Motion To Dismiss.

[Cliff Varnell]

8 minutes ago, Jeff Carter said:

The Lawfare blogger does not share relevant information.

First, the conversations with Kisylak did not reveal a quid pro quo or any kind of “deal”, and were not in themselves inappropriate or illegal, or relevant to Flynn’s counter-intelligence probe - which had uncovered “no derogatory information” whatsoever.

Why did Flynn lie about it twice?

8 minutes ago, Jeff Carter said:

The contact with the chief Russian diplomat was not in itself a reasonable source of suspicion. As the FBI in concert with the office of DNI conceded when they grasped at the Logan Act straw.
 

So why did Flynn lie about it?

8 minutes ago, Jeff Carter said:

Second, the Logan Act was a non-starter because, as part of a presidential transition team, Flynn was not a “private citizen” under the terms of the Act.

Did Flynn plead guilty to violating the Logan Act?

8 minutes ago, Jeff Carter said:

Third, the controversy with Pence had no influence on the McCabe/Comey decision to not close the CI file as it occurred a full ten days later. Keeping the file open was justified solely by the Logan Act.

So why did he lie to Pence?

8 minutes ago, Jeff Carter said:

Fourth, the Motion to Dismiss specifically rejected the “counter-intelligence purpose” of the Flynn interview, rather than “ignore” it as the author claims.

Splitting hairs?

8 minutes ago, Jeff Carter said:

Fifth, the FBI defied clear instruction that Flynn, as national security advisor, needed to be informed of a C/I investigation, and any interview with him had to be arranged through the White House Counsel.

I’d love to see you denounce all the FBI defiance of protocol in 2016.

8 minutes ago, Jeff Carter said:

All of the above inform the central arguments of the Motion To Dismiss.

A couple of thousand former prosecutors disagree.

[Jeff Carter]

Cliff, it is apparent you have only a superficial understanding of these matters because you are making common cause with law enforcement procedures which were roundly condemned back in the 1970s.

[Cliff Varnell]

10 minutes ago, Jeff Carter said:

Cliff, it is apparent you have only a superficial understanding of these matters because you are making common cause with law enforcement procedures which were roundly condemned back in the 1970s.

Jeff, it is apparent you have only a superficial understanding of my point.

I take full responsibility for the misunderstanding.

We should condemn the FISA process, the FBI interrogation protocols, the politicization of FBI investigations. But to claim there was no legitimate national security interest when a former top intelligence official takes money from foreign governments prior to ascending to the National Security Advisor post is naive in the extreme.

Your inability to see that Trump is trying to transform the loyalty of the Justice Department  from the rule of law to the rule of Trump is unfortunate.

[Cliff Varnell]

NSA letter exposes Rand Paul’s flailing, failed attempt to take down Joe Biden with conspiracy theory ‘unmasking’

https://www.rawstory.com/2020/05/nsa-letter-exposes-rand-pauls-flailing-failed-attempt-to-take-down-joe-biden-with-conspiracy-theory-unmasking/

[Cliff Varnell]

18 minutes ago, Robert Wheeler said:

Dear Cliff, Kirk, Bob, William & Warren;

Did you see many of the dates on the unmasking requests were before the Kilsyak call?

Do you think maybe General Flynn took you for a ride?

"What a beautiful Black Sky"

I don’t know Michael Flynn. I wouldn’t accept a ride from him, anyway.

[W. Niederhut]

This just in...  😮

I hope Jeff and Rob have insurance coverage for gonadal crush injuries, and don't mind singing soprano...

Why the Flynn Interview Was Predicated

https://www.lawfareblog.com/why-flynn-interview-was-predicated

May 13, 2020

 

"...According to the Justice Department inspector general, the Flynn investigation was properly predicated as a full investigation. In his report on the FBI’s conduct in the Russia investigation, the inspector general stated, “[T]he quantum of information articulated by the FBI to open these individual investigations [that is, the investigations into Flynn as well as Carter Page, George Papadopoulos and Paul Manafort] was sufficient to satisfy the low threshold established by Department and FBI predication policy, particularly in the context of the FBI’s separate and ongoing investigative efforts to address Russian interference in 2016 U.S. elections.”

Key to the Justice Department’s argument in its motion to dismiss is the fact that, after four months of investigation without finding any derogatory information, the FBI was prepared to close its case on Flynn. A draft internal FBI document dated Jan. 4, 2017, shows that the bureau had sketched out a memo closing the probe, though the document includes the usual caveat that if new information were identified, the FBI would consider reopening the investigation.

But before the case was actually closed, the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016. According to the Justice Department’s motion, the FBI had transcripts of the relevant calls, likely obtained through surveillance of Kislyak authorized by the Foreign Intelligence Surveillance Court. By this time, Flynn had been named as Trump’s national security adviser."

 

Edited May 13, 2020 by W. Niederhut

[Cliff Varnell]

Release of Flynn memo backfires on GOP ‘Obamagate’ pushers as experts point out ‘this was all legal’
https://www.rawstory.com/2020/05/release-of-flynn-memo-backfires-on-gop-obamagate-pushers-as-experts-point-out-this-was-all-legal/

But experts were quick to note that the memo itself blows a huge hole in Trump’s narrative, by showing how Obama administration officials acted completely legally and through proper channels to investigate a national security risk. </q>

[Douglas Caddy]

Judge in Mike Flynn case appoints ex-district judge to argue whether Flynn should be held in criminal contempt for perjury

 

https://www.rawstory.com/2020/05/judge-in-mike-flynn-case-appoints-ex-district-judge-to-argue-whether-flynn-should-be-held-in-criminal-contempt-for-perjury/

[James DiEugenio]

William, that writer has been saying the same thing now for days. Its the same argument that has been up here already.

Good, Doug is not going to link to the Palmer Report, with its earwax ads, and that Barr could not get anyone to sign the order so they had to put a wrong BAR number on it.

BTW, the story behind this is that a bunch of old Watergate prosecutors  got together after Sullivan opened up the case to amicus curiae.  

 

Edited May 14, 2020 by James DiEugenio

[Cliff Varnell]

Trump administration slammed for ‘unmasking’ list: ‘A disgraceful abuse of the declassification system’
https://www.rawstory.com/2020/05/trump-administration-slammed-for-unmasking-list-a-disgraceful-abuse-of-the-declassification-system/

On CNN Wednesday, national security analyst Carrie Cordero excoriated the Trump administration and the GOP for their release of a list of Obama administration officials possibly involved in the “unmasking” of ex-National Security Adviser Michael Flynn.

“My take on this is that this is a 100 percent contrived scandal,” said Cordero. “From everything I’ve seen as far as the documents that have been released and the information that’s been reported, all of the rules were followed. This was an individual who was captured and overheard on a lawful surveillance of a valid foreign intelligence target as far as we can surmise from the documents. The rules as far as requesting national security agency approval to unmask or reveal his name was done appropriately.”</q>

[James DiEugenio]

Quoting McCarthy, this is a political stunt arranged by those prosecutors and the judge:

In the federal system, the Justice Department’s discretion to charge or proceed with a criminal case is unreviewable. The judiciary has no more power to compel the executive branch to prosecute an indicted case than it has to force the executive to indict the case in the first place....a judge has no authority to order the executive to investigate, indict, or try a criminal case. None.

Moreover, Congress prescribed Rule 48 to protect defendants — exactly the opposite of what Sullivan is doing. Lawmakers were concerned about the potential for prosecutorial misconduct: They wanted to prevent strategic dismissals, where a prosecutor pulled the plug on a case that was not going well for the government, only to recharge it later; they wanted to forbid such abuses as repeatedly charging then dismissing an indictment, exhausting an accused’s resources and capacity to defend himself....

The objective to protect defendants is elucidated by Rule 48’s requirement that, after a trial has started, the prosecutor must obtain the defendant’s consent before dismissing the case. Once a criminal trial starts, a defendant’s double-jeopardy protection is triggered. The rule thus ensures that, if the trial is going badly for the government, the prosecutor cannot get a do-over unless the accused agrees. Most defendants would prefer to continue a trial that appears headed to acquittal rather than to risk a retrial at which prosecutors can shore up their case.

How perverse, then, that Judge Sullivan sees Rule 48 not as a safeguard for defendants but an artifice to pressure the executive against dropping a case.

Note that Justice Department’s motion seeks to dismiss the charge against Flynn with prejudice. That means once the case is dismissed, the government would be prohibited from re-indicting Flynn on the same charge. There is no possibility of the gamesmanship.... 

Judge Sullivan knows this. He is a highly experienced judge. He knows he has no authority to stop the Justice Department from dropping the case. He knows if he tried to do that, he would be reversed by the Court of Appeals. He knows he could not force prosecutors to participate in the sentencing of Flynn, or in any other proceedings in a case that the Justice Department has decided is not worthy of prosecution. The judge knows the question of whether the case should be prosecuted is not his call.

So what does he do? Rather than just doing his job and dismissing the case, he invites amicus briefs. He can’t compel the Justice Department to further hound Flynn, but he figures he can encourage the legal establishment to trumpet the political theme that Trump’s Justice Department is undermining the rule of law. Without a hint of irony, Sullivan’s blatantly political directive is designed to frame the Justice Department as politicized.

 

In criminal cases, the accused is already pitted against the awesome resources of the government. Forcing the accused to bear the additional burden of defending against amicus briefs is unfair. 

Alas, in the Flynn case, we are dealing with a judge who prefers bloviation to preparation.

135

 

Judge Sullivan’s order inviting amicus briefs is a travesty. Sad to say, it is not a surprise.

In other words, he wants to give his allies in the media time to make an uproar over the issue before he has to dismiss it.

 

 

 

 

 

•  

Edited May 14, 2020 by James DiEugenio

[Douglas Caddy]

15 minutes ago, James DiEugenio said:

William, that writer has been saying the same thing now for days. Its the same argument that has been up here already.

Good, Doug is not going to link to the Palmer Report, with its earwax ads, and that Barr could not get anyone to sign the order so they had to put a wrong BAR number on it.

BTW, the story behind this is that a bunch of old Watergate prosecutors  got together after Sullivan opened up the case to amicus curiae.  

 

Jim:

 

Your ignorance of the law is astounding. If the presiding judge finds Flynn in criminal contempt for committing perjury, he goes straight to jail. This happened with that depraved sheriff in Arizona who got pardoned later by Trump but the judge refused to erase his criminal conviction from the court's records..

My guess is that Flynn will soon be on his way to prison.

Judge Appoints Outsider to Take On Justice Dept. in Flynn Case

A retired judge will also examine whether the former national security adviser committed perjury.

 

Michael T. Flynn, President Trump’s first national security adviser, in 2017 in Washington.Credit...Susan Walsh/Associated Press

By Katie Benner

• May 13, 2020Updated 8:21 p.m. ET
• The New York Times
• •  

 

WASHINGTON — The federal judge overseeing the criminal case of President Trump’s former national security adviser Michael T. Flynn appointed a hard-charging former prosecutor and judge on Wednesday to argue against the Justice Department in its effort to drop the case and to investigate whether Mr. Flynn committed perjury, an extraordinary move in a case with acute political overtones.

 

Judge Emmet G. Sullivan of the United States District Court for the District of Columbia said in a brief order that he had appointed John Gleeson, a retired judge, “to present arguments in opposition to” the department’s request to withdraw the charge against Mr. Flynn, who had pleaded guilty to lying to investigators as part of a larger inquiry into Russia’s interference in the 2016 election before fighting the charge.

 

Judge Sullivan also asked Judge Gleeson to address whether the court should explore the possibility that Mr. Flynn opened himself up to perjury charges by pleading guilty under oath. Mr. Flynn entered guilty pleas twice in front of two judges.

 

The judge’s order was an astonishing move in the latest high-profile criminal case to prompt accusations from current and former law enforcement officials that Attorney General William P. Barr has politicized the Justice Department to protect allies of President Trump.

 

The Justice Department declined to comment. Judge Gleeson did not immediately respond to a request for comment.

 

 

Judge Sullivan had said a night earlier that he would consider briefs from outsiders known as amicus curiae, or “friend of the court,” who opposed the government’s request to dismiss the case against Mr. Flynn.

 

After a long campaign by Mr. Trump and his supporters, the department abruptly moved to the drop the charge against Mr. Flynn last week, saying that the lies that he had admitted to were immaterial to the matter under investigation and that agents’ questioning of him was unjustified.

 

While judges do sometimes appoint such third parties to represent an interest they feel is not being heard in the case, the move by Judge Sullivan is highly unusual, said Samuel Buell, a former federal prosecutor who now teaches criminal law at Duke University: He is essentially bringing in an outsider to represent the point of view of the original prosecutors in the case, who believed Mr. Flynn had committed a crime before Mr. Barr intervened and essentially replaced them with a prosecutor willing to say he had not.

 

“This is extraordinary for the judge to appoint somebody to argue against a prosecutors’ motion to dismiss a criminal case,” Mr. Buell said. “But it’s extraordinary for a prosecutor to move to dismiss this sort of criminal case.

 

“What the Justice Department did in the first case is, as far as any of us can figure out, unprecedented,” he added. “So the fact that this is pretty unprecedented too is not that surprising.”

 

It was not immediately clear what Judge Sullivan was focused on with his request for input on whether to essentially accuse Mr. Flynn of criminal perjury.

 

Mr. Buell said he doubted it would qualify as perjury for Mr. Flynn to embrace the Justice Department’s claim that he committed no crime because his admitted lies were purportedly immaterial to a proper investigation — whether or not that legal theory is true. But, Mr. Buell said, there could be a legitimate issue if Mr. Flynn were to claim that he did not lie after all — a notion the Justice Department’s filing also hinted at — despite previously telling judges that he had.

 

Mr. Flynn’s lawyers objected to Judge Sullivan’s order on Tuesday suggesting he would accept input from third parties and said that outside opinions were best left to Op-Ed sections. “This court is not a forum for their alleged special interest,” Mr. Flynn’s lawyers wrote in court papers.

 

Judge Gleeson, who served on the federal bench in Brooklyn and had run the criminal division in the federal prosecutor’s office there, has already made plain his skepticism of the motion to dismiss the Flynn case. He co-wrote an Op-Ed article this week in The Washington Post encouraging Judge Sullivan to scrutinize the motion.

 

“Prosecutors deserve a ‘presumption of regularity’ — the benefit of the doubt that they are acting honestly and following the rules,” he wrote along with two other former federal law enforcement officials in New York. “But when the facts suggest they have abused their power, that presumption fades.”

 

The department had made conflicting statements to the court, they wrote, saying that Judge Sullivan had the “authority, the tools and the obligation” to decide whether the department’s motion to withdraw was credible.

 

“There has been nothing regular about the department’s effort to dismiss the Flynn case,” they wrote. “The record reeks of improper political influence.”

 

The son of Irish immigrants, Judge Gleeson has said in interviews that he took a job as a prosecutor in Brooklyn after he was rejected from a post in the Manhattan federal prosecutor’s office, then run by Rudolph W. Giuliani.

 

As a prosecutor in Brooklyn, Judge Gleeson rose to legal stardom when he successfully prosecuted the notorious mobster John Gotti.