Friday, May 31, 2019

Could Be Very Big For Flynn

Judges don't like to be defied and they think--with good reason--that they're the ones who decide what's relevant. This is the Team Mueller prosecutors--not DoJ--who are defying the judge. I'll be surprised if Barr doesn't have something to say about this--and may even welcome the opportunity to get involved.

The Washington Post

Justice Department fails to comply with court order to release transcripts of Michael Flynn’s conversations with Russian ambassador
3:31 PM - 31 May 2019

Should be interesting.

OK, here's how it works:



Holy cow, look how carefully the Mueller team worded this response about FBI recordings of Michael Flynn.  Notice how they avoid production, by parsing, there are no recordings "that are part of the sentencing record".

Techno Fog‏

Note that the 5/16 Order required the production of "the transcripts of any other audio recordings of Mr. Flynn, including, but not limited to, audio recordings of Mr. Flynn's conversations with Russian officials"
Compliance may be an issue. Awaiting Judge response...

Is all kinds of stuff about to hit the fan? CTH has details. Check this out.

Judge Sullivan wanted a transcript--a full transcript--of a call between Flynn's lawyer and John Dowd, Trump's lawyer. Here's what emerged, per CTH:

Dowd wasn't amused by Team Mueller's editing:

What will Judge Sullivan think of this kind of shady dealing? Stay tuned.


  1. Was just reading the Fox news site. They're pushing the Mueller cut-n-paste as "the" transcript and touting it as clear evidence of witness tampering.
    "A lie will travel around the world before the truth can get its pants on."

    1. Mueller's as corrupt as they come. But his team, led by Weissmann, was in embryo before the election when they met with Steele, Strzok, Page, Ohr, and you can bet from the day after the election they were aiming for a Special Counsel if they couldn't remove Trump more directly or even prevent his inauguration. It was a coup plot, no two ways about it.

  2. So, in summary, we find ourselves at a very dangerous inflection point:

    1. Let's be clear: the transcript is of a voicemail which Dowd left for Flynn's lawyer...not for Flynn. As such, as Dowd says in his email response above, it was an entirely appropriate communication between counsel engaged in an adversarial proceeding which references their entirely appropriate joint defense and acknowledges the possibility of confidential information arising by reason of any decision by Flynn to cooperate with the government. I fail to see how this communication can plausibly be viewed as some kind of improper steering of Flynn by Trump. The government's position is untenable.

    2. But there is a much larger point. Mueller's vigilantes apparently posit that this voicemail excerpt is proof of Trump's obstruction of justice. But it is in fact exactly the kind of prosecutorial allegation which is not 'proof', as in an established fact, because it has not been contested by a defendant in a court who is availing himself of the opportunity to present contradictory evidence to an objective trier of fact, cross-examine the government's witnesses, review exculpatory evidence under Brady principles, etc., etc. In simple terms, a government proffer is not a fact established at trial.

    3. Nor has the government's theory of 'obstruction' been tested as a matter of law and been accepted by a court. Based on what we know today, Barr and the OLC of the DoJ would certainly disagree with Mueller's view of the law of obstruction as applied to the President. Nothing Trump said or did which does not constitute obstruction of justice as a matter of law is or can be found to be a crime.

    4. Accordingly, the larger point is that the government's litany of Trump's allegedly obstructive actions are not facts established by a trial or facts which necessarily constitute obstruction of justice as a matter of law. All ten or eleven of the government's allegations of obstruction might well fail at trial when contested by a defendant (Trump).

    5. And yet the Democrat political opposition and the MSM are using Mueller's road map as if the (undoubtedly politically motivated) allegations contained therein are all proven facts constituting obstruction of justice under accurate statements of the law. And, of critical importance, as if Trump is guilty of them until he proves himself innocent.

    6. All of the foregoing constitutes a gross perversion of American legal principles in the service of a corrupt political witch hunt launched to destroy a President. The stakes are enormous and Barr and the President must prevail in persuasively showing the wrong-doing of the political opposition or this country will be in a world of hurt.

    1. I think you've got it covered. What we need right now is some indictments. ASAP. Although I'll settle for exoneration for Flynn and Papadopoulos. Then indictments for those who framed them.

  3. Patterns matter. This is yet another example of the use of unethical (if not illegal) conduct by the FBI under the direct leadership of it's most senior officials. It should be viewed in the context of leaking classified documents to the media, suborning a deliberate deception of the FISC, and using subterfuge in several attempts to entrap a duly elected president. These actions, taken together, reveal a deep-seated criminal mind acting with impunity and arrogance. That individuals with this mindset have been employed by the FBI is indicative of systemic failure in both the culture and character of this the nation's premier law enforcement institution. The American people deserve better. Let us pray that Barr cleans house and restores honor and professionalism at the FBI.

    1. Patterns are hugely important in any investigative endeavor. The patterns we've seen, and which continue to emerge and confirm our suspicions, are beyond troubling. Stephen Cohen at The Nation (far left) has an excellent brief article that paints the extent of the house that needs to be clean, and it amounts to the the political, intel, and media establishments. Huge job.

    2. The Cohen article is very good, Mark. Thank you for the link. It reminds me to make mention of Mueller's assertion about Russian interference last week that

      “I will close by reiterating the central allegation of our indictments — that there were multiple, systematic efforts to interfere in our election,” Mueller said. “That allegation deserves the attention of every American.”

      And yet I have seen very little dispositive proof of this...perhaps there is some substance buried in some nook or cranny of the Mueller Report. But it seems increasingly likely that the entire premise was false; that there was no - none - meaningful Russian interference in the election.

      Also frequently offered as proof of Russian interference is the allegation that 'the Russians' hacked the DNC's computers. Please tell me where is the dispositive proof of that?

      I apologize in advance if this is territory already covered, but Cohen's article reminds me of my feeling that not only was the allegation of Trump collusion a made up lie, but the whole idea of any meaningful Russian interference in the election was equally a made up lie.

      It was all lies.

    3. Well put. I agree. Yes, we had a discussion of this with regard to the intelligence "assessment":

      I'm just finishing listening to the latest by Sidney Powell, whose book "Licensed to Lie" I've repeatedly referred to. Try it.

  4. I suppose, Mark, that, notwithstanding the problems catalogued above, Pelosi, Nadler, Schiff, et al can launch an impeachment process based on so-called 'abuse of power' which does NOT constitute criminal acts. But they will have to persuade (1) a majority of the House, (2) a two-thirds majority of the Senate, (3) possibly the Supreme Court, and (4) most importantly, the American people, that Trump's actions in defending himself from the false allegations of a politically motivated hoax concocted by his opponent and her sycophants constitutes 'high crimes AND misdemeanors'. A strategy which is a very tall order and carries with it a high degree of risk of abject failure very probably resulting in the destruction of the Democrat party for a generation.

    No wonder Pelosi, Nadler and Schiff appear increasingly unhinged. They are betting the pot in a high stakes game with a very weak hand. But it is very hard to fold when you are 'all in'.

    1. If the American public is strongly against impeachment while still, manifestly, being largely oblivious to the true nature and extent of the anti-Trump operation, imagine the reaction when they become more aware of it.

      That leaves the Dems faced with a choice: allow Trump and Barr to bring that info out at their own pace or force the issue with impeachment. Either way it comes out and has important political effects. Pelosi knows impeachment weaponizes all that info against Dems by FORCING it on the consciousness of the public.

    2. The question is will they (the public) ever become aware of it. Insider baseball is all very interesting but I don't think it ever sold a ticket. As I noted above the Mueller cut-n-paste version of the above msg is being pushed by the MSM as "the" transcript. I'm sure other misrepresentations are coming and those who do not read closely (just listen to the talking heads) will never no the difference. Most of the general public still thinks DDT was environmentally disastrous and the EPA, to this day, brags on its web-site that it "saved" Bald Eagles by banning it (which is a blatant lie) with no self-consciousness concerning the millions that that ban has killed world-wide to by mosquito borne diseases. Perception, in politics above all else, is everything.
      The fate of the Republic rests on a knife edge.

    3. That's what I mean about impeachment. The vast public may not follow "insider baseball" between elections, but if there's one way to get their attention it'll be impeachment. So, for the Dems, they have two choices: 1) hope that the whole hoax slips past the attention of the great unwashed, or 2) tempt fate by FORCING it on their attention, hoping that their big lie will win the day against the mountain of evidence that Trump will have.

      As Conrad Black says, #1 is the rational choice, but with the Left you can't totally discount suicide.

  5. Speaking of weaponization, the good guys are still playing by Marquess of Queensberry Rules while the bad guys employ MMA Rules or, really, no rules at all. I became utterly convinced of this during the sordid Kavanaugh confirmation process. There is no limit to what they will do and where they will go.

    However, I believe an impeachment process where Trump is defending himself will be 'no holds barred'. It will be a spectacle.

    1. The puzzling thing is that after seeing Trump in action for 3 years the Left continues to believe that they can somehow shut him up while they lie. They seem to somehow believe that sooner or later he'll starting acting like the Republicans they've known and loved for all these years. Not gonna happen.

    2. I think this might be a reflection of their longstanding dominance of media/narrative and the willingness of Republicans to acquiesce going back two generations. No one can remember how to apply any other strategy. Literally their success has made them lazy and incapable of defense against an essentially honest man in the age of Twitter (until Twitter is willing to go full Ministry of Propaganda); they're waiting for the MSM to miraculously turn things around. They have nothing else in their tool box.

    3. Interesting that they do seem to be stuck in the past, while conservatives have more fully embraced the new information world of the internet.

  6. Replying to Cassander.

    Will Chamberlain had a Twitter thread about wartime vs peacetime conservatives. At the same time, I read a few articles about Sohrab Ahmari vs David French regarding Christianity and the public square.

    If I understand the debate properly, some of us have awakened that these are not normal times and we have to set aside our usual behavior and respond in kind.

    A good way to encapsulate the thinking for me is that these are the times that call for a Winston Churchill, not a Neville Chamberlain.

  7. Mr. Wauck,

    I'm responding to your comment from 8:51 AM today. After I read your comments, some comments from Dan Bongino from several months back came to mind (before the release of the Weissmann Report.)

    Dan claimed that there was a crucial race in time regarding DJT vs. the Deep State. I didn't totally grasp what he meant. Now I think I do. The President had to survive the bombshells planted by Comey, Clapper, et. al., and remain in good shape politically speaking.

    Coupled with the Senate expanding its R majority, the sacking of Sessions and the introduction of AG Barr, Donald has weathered a rough time at sea.

    This is not over but Donald has a good hand to play.

    That is my analysis. It's not over, but I am with you. I think that impeachment is suicide. I think not impeaching is death by cancer. I guess the question is, the day after the election, how bad is the Democrat corpse?

    That is my amateur take on the politcal aspects of this struggle between the Constitution/rule of law and anarchy/rule of lawless men.

    1. I agree. What I've tried to stress in the past has been the importance of expanding the Senate. There were a couple of events leading up to it--Trump's deft handling of the Kavanaugh nomination following on the Gorsuch one, the economy, and the emerging realization of what was at stake due to the House investigations. The emergence of Barr as an adult
      replacement for Sessions was also important--not some goofball appointment. All this was important for bringing the GOP more in line with Trump. Expanding the Senate, thanks very much to Trump's tireless campaigning, sealed the deal with DC Republicans. The GOP is elated with Barr (in general, not just for the Russia Hoax) and with their strong Senate position. And they owe Trump.

  8. Yes, the tide has turned somewhat, but there is still much uncertainty moving forward. If Barr is genuinely pursuing an effective legal campaign against the ongoing coup and truly intends to prosecute the conspirators, then justice may yet prevail. But that outcome is not guaranteed. The recent OIG report codified the DC Double Standard by letting Strozk off the hook for Class I Felonies (even while continuing the entrapment scheme and persecution of Flynn for similar alleged crimes). If Barr let's that stand, the minimum damage will be boundless cynicism and utter loss of faith in DOJ/FBI. Secondly, as the Deep State grows more desperate, they have plans for several false flag OPs designed to instigate a Black Swan event. They will try to go scorched Earth if everything else fails. It's still a minefield out there.

    1. I'll be posting more re the tide a bit later today.

      Re OIG, it's not possible to know from this distance what transpired. If, as speculated, the subject of the declination was Strzok, then it's 100% certain that the declination happened under Rosenstein--not Barr. We know that because the matter was referred to FBI for "appropriate action." Strzok is long gone from the FBI, so this action wasn't recent--it could only have happened while he was still employed at the FBI. I've explained this before, re OIG. Strzok is not of any hook, but he may have also entered a deal to cooperate. Barr will have something to say about all that.

      As for the Deep State, Trump finally has a wing man who has the interests of the executive at heart and who is fully congnizant of the Deep State and its motives.

  9. If Strzok had flipped there would have been no need to issue this report by OIG; and if fact, keeping all things sealed would have been the normal course of events until indictments are issued. And as for excusing this by shifting the blame to Rosenstein, that doesn't cut it either. This report was issued on Barr's watch and he could have preempted it and, at the least, kept it sealed for the time being. It was likely issued with his acquiescence, if not his approval.

    The OIG report was a betrayal of the principle of equal application of the law to all citizens, and it's issuance was a bad day for the good guys. Anyone with potential legal exposure from SpyGate/RussiaGate now has less incentive to cooperate because Strzok got to walk on numerous Class I felonies. I'll bet Flynn is fuming right now. And Papadopolus did a fortnight in prison for the "crime" of being entrapped by the FBI. Barr should understand that this isn't just bad optics for the reputation of the FBI, it's indicative of core moral rot.

    1. The declination was made while the subject (Strzok?) was still employed at the FBI--the terms of the statement make that explicit. If you care to construct a timeline, that means the whole thing was a done deal before Barr ever walked in the door. I.e., he had NOTHING to do with the decision. The "report" is not a "report"--it's an "investigative summary," IOW, no more than an announcement, after the fact, of what was done before Barr was ever nominated. Barr may well be delighted to have this made public.

  10. Can you provide an explanation for a layman, please, regarding the declination? Can the declination be rescinded if AG Barr decides it is worth of prosecution? After all, Manafort wasn't supposed to be charged and then he ended up being charged by Mueller. That makes me think that the declination can be reversed.

    Also, I have read reporting that Liu was the one who made the declination decision.

    Thank you, as always.

    1. In a word, yes. Supposing that the FBI took administrative action against the subject (Strzok?), that doesn't absolve the subject of criminal liability. Nor is a declination necessarily binding. It's normally rare to reverse such a decision, but--to offer one recent and very high profile example--James Comey was allowed by Loretta Lynch to decline prosecution of Hillary Clinton. And Comey then reopened the investigation three months later.

      Barr is not locked in by this and had nothing to do with. Right, re Liu. It would be different if there had been a plea deal which covered criminal exposure of the subject matter of the investigation, as happened with other Liu coverups, but that wasn't the case here. As it wasn't the case with Clinton.

    2. Also bear in mind, OIG does all sorts of investigations--audits, etc. If they think they've come across criminal violations in one of their investigations they have to refer it to the criminal division--OIG does not prosecute and has limited investigative powers. At that point the criminal division could simply present the case to a Grand Jury, but more likely would also conduct additional investigation before doing so. I'm in no way dissing the work of OIG, but it's not the same as a criminal Grand Jury investigation. They do good work within the limits that are imposed on them by law.

      OTOH, if there appears to be prima facie evidence of a criminal violation, the case will not be handed over to OIG. FBI and DoJ criminal prosecutors will handle it from the start. If you want to look for irregularities in this case, you might well want to look at the origination--why it was handed to OIG in the first instance rather than treated as an internal matter.

    3. I hope I'm being clear. You have to be clear that OIG is not set up to handle criminal investigations per se but to do internal investigations to make sure administrative rules and regs are followed. If criminal wrongdoing is uncovered, they refer the case.

      For example. Suppose, as has happened, the FBI discovers that one of its agents is a spy. The FBI will open a criminal investigation (espionage) against their employee. Later, OIG will do their investigation to see whether the FBI was somehow at fault for what occurred. If they discover criminal wrongdoing in the course of that investigation they will refer it for prosecution. Conceivably they could discover more espionage that the criminal investigation missed (unlikely) but more likely that warning signs were ignored, someone was given a pass when they should have been disciplined, etc.

      The case in question is said to have started over allegations that an employee had violated "federal regulations and FBI policy." In other words, not a criminal investigation to start with, but a contempt of court case was discovered--which was apparently declined.

    4. Thank you for expounding on the topic. I appreciate it.

    5. Powerline has a nice article "Russiagate as seen From the Far Left." Rather than make you navigate to its site, I am enclosing the link, in case you are interested.

      BLUF: Even a liberal professor acknowledges the wrongdoing by the IC, Dems and media.

  11. Leaking classified information to the media is a Class I felony. Comey has already admitted publicly that he did so. OIG has uncovered evidence that other FBI employees also leaked classified information to the media. James Wolfe leaked classified information to the media and got a slap on the wrist (instead of the Mike Flynn treatment) because he threatened to name Senator Warner as the person who ordered him to do so. This whole issue is about rampant lawlessness within the nation's premier law enforcement institution. That is not a trivial matter, and Barr should never have let OIG release that "investigative summary" without first attacking the underlying cancer in the FBI. People are noticing that there is a DC Double Standard, and that is fueling a rise in cynicism and broad distrust of government.

    1. 1. What makes you think that OIG.DOJ had anything to do with the James Wolfe? Wolfe was not a DoJ employee.

      2. Nowhere in the investigative summary is it stated that the DAD leaked "classified information"--so where are you getting YOUR info?

      "The OIG investigation concluded that the DAD engaged in misconduct when the DAD: (1)
      disclosed to the media the existence of information that had been filed under seal in federal court, in violation of 18 USC § 401, Contempt of Court; (2) provided without authorization FBI law enforcement sensitive information to reporters on multiple occasions; and (3) had dozens of official contacts with the media without authorization, in violation of FBI policy."

      3. It is in Barr's interest for information re his predecessor's actions to be released, as it legitimizes his own efforts to expose wrongdoing.

      4. There is no reason to believe that Comey or anyone who leaked classified info has been given a pass, nor is there reason to believe that OIG is the entity investigating Comey--every reason to believe that's a GJ investigation, not OIG. Same goes for any similar violation by anyone no longer employed.

    2. Mr. Wauck,

      Thank you for the response to Unknown. I am glad that you share your FBI experience with us because we need accuracy and someone who can separate the wheat from the chaff, regarding reporting, opinions, etc.

    3. My experience with OIG was in the context of a CI case. If you look at

      you'll get an overview of what they're all about. Basically, the name tells you: Office of the INSPECTOR General, not Investigator General. They're mandate is fundamentally "to detect and deter waste, fraud, abuse, and misconduct in DOJ programs and personnel, and to promote economy and efficiency in those programs." They're internal inspectors and auditors and lack the authority to effectively conduct investigations that require gathering info from outside the organization.

      While their Investigations Division does also investigate criminal violations, those are focused on "fraud, abuse and integrity laws that govern DOJ employees, operations, grantees and contractors." Again, internal stuff.

      As a result, people who don't understand this setup are often disappointed at the results of an OIG investigation. For example, in investigating FISA abuse, they will be focused on whether internal policy and regs were followed. They will not be able to obtain communication records for outside actors (Steele, Nellie Ohr) or insiders to the extent that they were done on private devices. Obviously no thorough criminal investigation can ignore those factors. That's why criminal investigations are also underway.

      This is also why Rosenstein was able to tell OIG to back off until Mueller was done.

      However, recovering the texts is a good example of what a good job OIG can do in their limited field, and how crucial that can be for parallel or later criminal (GJ) investigations.