Monday, June 24, 2019

UPDATED: Flynn Update: Status Hearing 6/24/19

First the formalities. Due to Flynn's dismissal of his original legal team and hiring of Sidney Powell to represent him in his false statement case before Judge Sullivan, Sullivan set a date for another status hearing--the last day of August. That gives Powell a little over two months to spend getting a handle on the documentation in the case. However, Powell told the judge that she'd need a good three months, and buttressed that estimate with a description of the extent of the documentation she has received to date.

The real news, however, was confirmation that Flynn and his previous legal team never had access to classified documentation relating to the case. This confirmation arose when Powell informed the judge that she might need a security clearance to review some of the documents she might want to see.

Several observers on Twitter had essentially identical accounts of this aspect. Here's how it went:

Powell raised the possibility of needing a security clearance and said she may need to review classified information. But prosecutors say they did not turn over any classified info as part of discovery. Prosecutors & the judge seemed confused about what the info might be. 
The judge ultimately decided that the defense team, prosecutors and the court’s classified information security officer should be in touch and figure out if the judge needs to step in.

Obviously, the classified information that Powell might want to see will depend on where she wants to go in representing Flynn. Most commentators focused on the clear implication in this that Flynn had never been allowed to see the transcript of the conversation with Russian Ambassador Kislyak that he's charged with lying about. Instead, he pleaded guilty to lying to the FBI based on the FBI's FD-302. Further, Team Mueller, in response to Judge Sullivan's demand to see that transcript responded that it wasn't relevant--Flynn had plead guilty and that was all that mattered. Sullivan caved to that.

This is a major problem for Flynn. Flynn has repeatedly maintained to the court, under oath and under questioning by the judge, that he lied to the FBI and wants to be punished for his crime. He has consistently maintained--again, under oath--that he has full knowledge of what he's doing, was satisfied with the representation he had received from his lawyers, and was making this decision voluntarily. On what grounds can he now, while awaiting sentencing, ask to examine the evidence that underlies the false statements that he claims he made to the FBI?

In my view, the answer to this lies in two related matters. The first derives from the statement we quoted above: "Prosecutors & the judge seemed confused about what the [classified information that Powell wants to see] might be."

The second part of the answer lies, I believe, in the second scope memo that Rod Rosenstein provided to Team Mueller--a memo that is also classified, but was key to Team Mueller's ability to extract a plea from Flynn. Sundance provides background on that second scope memo, although he doesn't appear to see in it the significance that I do:

The second scope memo was issued by Rod Rosenstein to Robert Mueller on October 20th, 2017. The transparent intent of the second scope memo was to provide Weissmann and Mueller with ammunition and authority to investigate specific targets, for specific purposes.  One of those targets was General Michael Flynn’s son, Michael Flynn Jr.

This second scope memo allowed Weissmann and Mueller to target tangentially related persons and entities bringing in Michael Cohen, Richard Gates, Roger Stone and Michael Flynn Jr.  Additionally this memo established the authority to pursue “jointly undertaken activity“.

Regarding the first reason, for Powell to justify viewing classified documents at this stage in the case she must be prepared to offer Sullivan a reason--and that reason can't be simple curiosity. Given that Flynn has so strenuously maintained his guilt, under oath, I have to assume that Powell intends to attack the entire basis for any case against Flynn--beginning with the very legitimacy of the investigations that led to his fateful interview with the FBI.

I have, of course, argued at considerable length that the FBI had no legitimate official reason to interview Flynn about his contacts with Ambassador Kislyak (Setting False Statement Traps Is Not Official FBI Business or, for more references, here). The very fact that FBI/DoJ came up with such transparently bogus ruses for the interview as the Logan Act tells us that they had no confidence whatsoever in the investigation they had been running on Flynn for as much as two years--which is one reason they neither attempted to question Flynn on those matters nor informed Trump at any time that Flynn was under investigation. The circumstances of the interview, I believe, point far beyond any "honest mistake" the FBI could claim with regard to the initiation and conduct of its Flynn investigation. And that is probably what Powell will need to get at all the classified documentation regarding the FBI's pursuit of Flynn--reasonable grounds to believe that the FBI was acting beyond the scope of its legitimate counterintelligence authority to set Flynn up.

Powell will want to see the entire FBI file on Flynn. She may not get it, but she should be asking for it and should accept nothing less than all documents that bear upon predication. Further, when she makes these demands to the court she will probably need to argue that her attack on the very legitimacy of the investigation has as much or more to do with upholding the integrity of our entire justice system as it does with doing justice to a man who has repeatedly lied to the court regarding his supposed guilt.

As for the importance of the second scope memo, the argument is similar. From my vantage point I have to agree with those who maintain that the only real point in that scope memo was to allow Team Mueller to target Flynn Jr. in order to coerce a guilty plea from Flynn Sr. Recall, 28 CFR § 600.1, which sets out the grounds for a special counsel investigation, specifies that the Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that "criminal investigation of a person or matter is warranted". Powell, I believe, will be arguing that there never was a matter that warranted criminal investigation of either Flynn. She will be arguing that the expansion of the Special Counsel's authority was improperly granted in order to coerce a guilty plea from Flynn Sr., based on an investigation that was an abuse of the FBI's authority in the first place. And for that reason Powell will want to see all documentation--including classified documentation--pertaining to the predication against Flynn Jr.

(As an aside, I hope this discussion will suggest why Joe DiGenova never misses an opportunity to excoriate Rod Rosenstein in the strongest terms.)

I believe there are strong, although admittedly circumstantial grounds, favoring Powell in this. The fact that neither Flynn was charged with any substantive crime is telling. Yes, I understand that not all FBI investigations result in charges--been there, done that. But in this situation the exoneration of Flynn of all substantive wrongdoing is telling. You may ask, What exoneration? My reply is in two parts: 1) In these circumstances, considering who Flynn was, there was at least in an informal sense a higher bar for even initiating an investigation; and 2) also with regard to those same circumstances, if in any way possible, a guilty plea to some substantive charge should have been required.

In further support, I would cite remarks from Judge Sullivan himself at the initial pre-sentencing hearing, back in December, 2018. At that time Sullivan indicated that he had some questions that he'd want answers to, like,

how the government's investigation was impeded? What was the material impact of the criminality? Things like that."

Yeah. And Powell will be telling Flynn, if I'm not very much mistaken, that "things like that" are part of what she has questions about, to which she's looking for answers. But her questions go far beyond that to the Big Question: Why did the Special Counsel even pursue such a piddling matter--questionable as it was? Was their any criminal investigation warranted, or was this a political witch hunt?

I don't doubt that there's something else that Powell has in mind. She knows this is an uphill struggle. On the other hand, she knows there's a possibly game changing difference at this point--if not for that I question strongly whether Flynn would have changed attorneys and whether Powell would have taken Flynn's case. And that possibly game changing difference is that Bill Barr is now the Attorney General of the United States. In full. I'm not saying that Powell is simply delaying for time. I'm sure she believes in the righteousness of what she's doing. But it would be foolish on her part not to extend the timeline to see what difference the Barr/Durham investigation will make. They will be--already are--looking at the same documents she'll be seeking access to. Things could be changing.

UPDATE: Read this--from near the end of the transcript of the status hearing--in light of the fact that Flynn's previous lawyers had no clearances and did not review classified documents. Van Grack had previously stated that the discovery materials provided to Flynn's previous lawyers included no classified materials: "there is no classified discovery in this case." One can only assume that was because Flynn's previous lawyers either made no such request or didn't push for it. Powell clearly states that, notwithstanding the government's representations of how much documentation they provided in discovery, there is additional material she wants to see and most of it is classified:

MS. POWELL: And I do think most of the information I will need to review may be classified. I don't know for sure, but out of an abundance of caution and to have --  
THE COURT: Notwithstanding the government's representations?  
MS. POWELL: That's with regards to what they produced. There is other information.  
THE COURT: Oh. All right. Now you've piqued the government's interest. 

MR. VAN GRACK: Your Honor, again, I'm not -- again, in terms of the information the government produced, there's nothing that the government produced that's classified, and so -- I mean -- to the extent --  
THE COURT: But you'd like to know what this other information is, too.


  1. Pense misspoke on national television about Flynn's contact with Russians, and in order to protect Pense's public integrity perception, Flynn dissembled slightly in his FBI interview. The original 302 captured this slip, but did not elevate to a criminal act. Then McCabe got involved and massaged the 302 until it kinda-sorta implied a perjury material to the ongoing counterintelligence investigation. Weissmann then ran with it and ultimately leveraged the perjury accusation into a criminal investigation that uncovered some flimsy legal exposure in Flynn's past and could potentially implicate his son (more a bluff than a smoking gun). Remember, all of Flynn's communications were being monitored going back to 2015 and undoubtedly there was some embarrassing and/or compromising evidence that Weissmann could threaten him with. At this point Flynn was broken financially and would not countenance allowing his son to be dragged into a political war. Weissmann has been playing extreme hardball from the beginning and I doubt that Flynn would change course unless he had reason to believe that he could succeed in getting the case dismissed on procedural grounds (prosecutorial misconduct).

  2. The casual willingness displayed throughout this affair, by a wide array of actors, to apply the Beria Theorem of Jurisprudence is shocking to say the least. Can any prosecutor ever be trusted to serve the interests of blind Justice. Whether the FBI, CIA, and DoJ are dissolved is nothing compared to the catastrophic damage this has done to the very fabric of the Republic, which is Trust. These were, theoretically, the best of the best. Who can ever trust/engage a government agent without a suspicion of malevolence. From here forward, in every dealing with the gov't, a citizen will have to evaluate the encounter from an adversarial perspective for Beria never forgets, much less forgives.
    The Hubris required to think America can long be governed under such conditions is astounding.

    1. Couldn't agree more.

      We'll have to see if I'm right on this one. I can't imagine why Powell would take the case if she didn't plan on challenging it, and I can't see any other way of going about it.

  3. I'm just about finished reading Powell's fascinating book, "Licensed to Lie" (published pre-Trump in 2014!) about widespread corruption in the United States Attorney's office. Highly recommended. As everyone who has read the book knows, the Mueller inquisition was not Andrew Weissmann's first rodeo. He and his like-minded colleagues pulled some pretty horrific shit in the Enron and Ted Stevens prosecutions and, as a result, suffered extensive reversals and calls for disciplinary action. So, the good news is that Sydney Powell absolutely knows who she is up against and absolutely knows the 'law' of prosecutorial misconduct. The bad news is that, notwithstanding Powell's very persuasive arguments and briefs, Weissmann and his friends were not punished for what they did in Enron and in fact most received promotions and eventually obscenely lucrative law partnerships with Establishment law firms. It is very tempting to worry that the same players will not pay for the same kind of behavior here. Bigger picture, there is no question that enormous damage has been done to our system of justice by these prosecutors (and their friends in the FBI, CIA, etc.) over the past decade and more. Whether there is any way to repair this damage...whether Durham, Barr and Trump can do it...time will tell. I can't help but also observe that the Left insists that the problem in this country is the 'racist, fascist, authoritarian' Donald Trump. Quite the contrary, Trump is the (to a great extent unwitting) agent who has stumbled on to the main stage and one way or another is unmasking the systemic corruption in this country. God help him.

    1. Count on it--despite their resounding defeat in the SCOTUS, 9-0, the abuses have only gotten more widespread.

  4. I couldn't begin to agree more with both Anonymous & Cassander regarding the catastrophic loss of trust in government institutions in general and in law enforcement and intelligence agencies especially. Prior to all this, I always assumed that if I were ever questioned by, for example, the FBI, I'd just say, "Ask me whatever you want and I'll tell you everything I know."

    Now, no way. If they want to know so much as what I had for breakfast this morning, I'm taking the 5th. If they tell me that innocent men need not take the 5th, I'll just point to all that has gone on the last few years or so.

    And the 302 as the default manner of memorializing interviews has to go. Interviews must be 1) transcribed verbatim and signed off on by both parties, and 2) probably recorded - via video if interviewee requests it, otherwise by audio. There must be in place a process whereby the recordings and transcriptions can't be tainted or lost, and interviewees & other defendants must have access to them if relevant to their defense or following other legitimate showing of cause.

    And as long as I'm already in full-on rant mode, there has to be legislation making it as difficult as possible for government - and dirty cops, especially - to frustrate oversight and investigation with bogus claims of sources, methods, bla bla bla. I fully understand that getting this right can be tricky and will certainly involve trade offs, but the current nearly complete shielding the bad guys within government possess and flagrantly abuse is a one-way ticket to the banana republic we nearly became and only tenuously have escaped thanks to some fed up voters a few short years ago in PA, MI & WI.

    Bottom line: burden of proof must be put fully & formally back on the government, as the Framers so very clearly intended it. If law enforcement can't catch the bad guys without constitutionally dodgy practices, the problem's not the Constitution; it's the losers and hacks that corrupt and coddled governments and bureaucracies have put in place over far too many years.

    Am I wrong?

    1. Complete agreement.

      I'm shocked that 302s are accepted by the Courts as evidence--they're hearsay, i.e. one's retelling summary of a conversation/interrogation not recorded contemporaneously, but afterwards, even days later.

      Do they use quill pens?

    2. Brad, there's actually some good news out, which is the Grundy case. I had thought about doing a post on it, but it's a bit complicated for non-lawyers. Here's the bottom line:

      Because Kavanaugh wasn't able to partipate (oral arguments took place before his confirmation) it could've ended up 4-4, basically reaffirming delegation of legislative power to regulatory agencies. Through some creative judicializing, that result was avoided and Alito made it clear that the conservatives are simply waiting for the next case to restore constitutional governance.

      In practical terms what that means is that all the regulatory agencies will be held to strict scrutiny and Congress won't be allowed to delegate legislative powers. Huge, huge consequences. Kagan in her opinion said: but, but, but--that means that almost ALL current governance in unconstitutional! The conservatives know that, and they are committed to reforming that. Very good news.

    3. Forbes, here's a good blog that explains about 302s:

      The way things are going, I have to wonder whether we're one case away from some fundamental changes.

    4. Very much enjoy this discussion. Worked 30 years as a field investigator for a regulatory agency. We regulated a particular sector of industry. I conducted what we termed routine inspections, audits and for-cause investigations and I regularly 'interviewed' corporate officials, including corp. legal counsel. I pulled written statements, which both parties signed, though at times an official refused to sign his own statement. Most of the violative inspections/investigations were adjudicated through an ALJ. Occasionally, a DOJ prosecutor would take a case from us and they would usually send in the FBI to retrace my steps.

    5. Cod562, then you understand how important this would be. It would, among other things, force Congress to get back into the business of writing legislation and owning it. It would also put a stop to the Obama tactic of issuing executive interpretations of regulations.

    6. I recall being involved in internal discussions of regulatory guidance for policies and then some of those same policies being reversed by the Obama regime. It was as if the words of the governing statutes had no meaning.

    7. That's why I'm a bit surprised that the Gundy decision hasn't received more notice from conservatives, given that it points to a decision in the not too distant future that will be potentially transformative.

  5. I could repeat what Anonymous, Cassander, Brad, Forbes, Cod562 and you said. Instead, I'll brief.


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    1. All true. Two points:

      1. Powell points out that much of this could not happen without the complaisance of judges. Judges and lawyers are all part of the same profession and are too prone to look out for one another.

      2. Nobody really suffered any consequences as a result of the Enron case--certainly no consequences even remotely commensurate with the injustices that were committed. The level of sheer malevolence manifested is quite stunning.

      As a matter of interest, the wife of the Friedrich cited above happens to be Judge Dabney Friedrich, a Trump appointee, who is hearing the Concord Management case in NY.

    2. [Mark -- I accidentally posted this comment under an obselete 'nom de blog': Canoe Hill Hockey. I then tried to delete it -- with mixed success. I am posting it again under my preferred pseudonym. I hope this does not cause you too much trouble.]

      Ok, I have now finished Sidney Powell's book, "Licensed to Lie", which traces in careful detail the misconduct of a number of United States Attorneys in various Enron prosecutions and the Ted Stevens prosecution. Numerous U.S. Attorneys participated in more than one of these cases and the notorious Andrew Weissmann is a common thread running throughout the narrative. The bottom line, if you believe Ms. Powell, and she is very compelling, is that federal prosecutors regularly break the rules with disastrous consequences for perhaps innocent defendants and their families. If the malfeasance Ms. Powell describes in her book (published in 2014) is any example of what Weissmann et al pulled off in the Mueller investigation and related prosecutions of Papadopoulos, Flynn, Stone, etc., we -- all Americans -- are in deep trouble. The book is very much well worth reading. Here, to me, is the money quote (p. 402):

      "The games and tactics of Friedrich, Ruemmler, Weissmann, Caldwell, and others on the Enron Task Force should never have been tolerated by the Houston federal judiciary or the Fifth Circuit -- much less reinvigorated by Friedrich and Glavin as heads of the Criminal Division of the Department of Justice to pervert the trial of [United States Senator Ted Stevens]. There is no telling how many others have been or will be wrongly convicted as this cabal of corrupt cronies ambitiously climbs and weaves through the highest ranks of the Department of Justice, the FBI and the White House -- in between their powerful partnerships in some of the country's most prestigious and influential law firms.

      "What happened to the defendants in this book can happen to anyone. Judges blind to prosecutorial misconduct and abusive tactics cannot render justice."

      And this was written in 2014, before Trump declared his candidacy, and long before Rod Rosenstein tapped Robert Mueller who hired his long-time associate Andrew Weissmann to 'investigate' collusion by Trump with Russia.

      So incredibly prescient.

  7. We have a case where I live where a prosecutor allegedly allowed a key witness to lie and did nothing about it. The witness is an outside investigator that she hired because she did not trust the police. Even though I say allegedly, it is 99.95% certain that they both lied because video was recovered that clearly shows the lying.

    The article went on to say that prosecutors are generally not held accountable.

    This had to change.

    1. Oops, this has to change.

    2. Law enforcement officers lie too often, as well. Most people are very naive about such stuff.