Saturday, October 26, 2019

More Insight Into The Flynn Case

Fox's Ed Henry interviewed a former US Attorney, Brett Tolman, regarding the Flynn case and the Russia Hoax in general. You can find a portion of the interview and some of Tolman's remarks here: Michael Flynn's claim against FBI is 'chilling'. What I want to do here is to point out those remarks that show the importance of predication, and how that lead to further investigation of the investigators, as well as the prosecutors:

A defense claim that FBI agents manipulated official records, leading to Michael Flynn being charged with lying to investigators, is "chilling," former Utah U.S. Attorney Brett Tolman said Saturday. 
The former national security adviser's legal team filed an explosive motion Thursday, alleging that FBI agents manipulated records of Flynn’s 2017 interview. 
This comes as U.S. Attorney John Durham's ongoing probe into potential FBI and Justice Department misconduct in the run-up to the 2016 presidential election has transitioned into a full-fledged criminal investigation. 
Appearing on "Fox & Friends: Weekend," Tolman told host Ed Henry that what's interesting about Flynn's conviction is that the government "has to prove that it was knowingly and willfully a misrepresentation by Flynn." 
"So, now what you have are allegations that may suggest this couldn't have been knowingly and it couldn't have been willfully if it was staged or if there was manipulation," Tolman said. 
"How was it willful if he thinks he's having a conversation that is not an interview with a federal agency?" he asked.

Just yesterday, in The Real Key In The New Flynn Revelations, I linked four of my past discussions of these issues. The problem for the government is much worse than Tolman presents it--even though he speaks in fairly strong terms. Sidney Powell hasn't simply made "allegations". She has, in fact, presented compelling documentary evidence that investigators and prosecutors--the FBI and DoJ at their highest levels--conspired as a group to frame Flynn, an innocent man, even though they knew beforehand that he had done nothing wrong. So, not only was the interview of Flynn conducted in such a way that it was impossible for Flynn to have violated the False Statements statute (1001)--as Tolman convincingly argues--but the FBI had no grounds for investigating or even for simply interviewing Flynn in an official capacity at all. They then used the targeting of Flynn's son to coerce Flynn into a plea to a charge that they knew he was innocent of, and compounded this by altering and even fabricating the evidence. This is a conspiracy to deprive Flynn of his civil rights. It's criminal misconduct that violates more statutes than I can cite right now. And it all rests on the lack of predication.

In the past the way I've put this is to say that Setting False Statement Traps Is Not Official FBI Business. Here are those links to past posts on the subject:

Dersh Gets It Right
Russia Hysteria, False Statements, And The Michael Flynn Affair
Setting False Statement Traps Is Not Official FBI Business
Judge Sullivan's Challenge


  1. I got an error message re Fox and the Henry-Tolman interview. This one works:

  2. Given your observations above regarding the Flynn case, is it too far to speculate that Covington & Burling might be on the receiving end of a malpractice lawsuit? Settled by a return of the fees they billed Flynn? Bulldog Powell appears to have uncovered sufficient evidence regarding the gov't efforts against Flynn that C&B's professional dilligence and client representation appears negligent.

    1. In previous filings Powell has broadly suggested that Flynn was poorly served by the representation he received from Covington & Burling. Specifically, it appears that Covington & Burling, by preparing a Flynn FARA filing at the specific urging of DoJ's David Laufman, Covington & Burling had a conflict of interest in later proceedings in which that FARA filing became an issue. I would not be resting easily if I were Covington & Burling.

    2. Of course, these big firms have plenty, and I mean plenty, of malpractice insurance.

      A malpractice award or settlement would have to be pretty ginormous to hurt the partners.

      Of course there is the reputational cost...

    3. Cassander--I'm really thinking about making Flynn whole from a financial standpoint. That C&B partners at-large, via insurance, won't feel a sting is not my concern--reputational risk is the cost they suffer. Swamp dwellers, in one form or another, will always be with us. Cheers.

  3. Somebody said long ago that 203s are where the FBI murders undesirable truths. "Chilling," yes, but definitely not unprecedented.

    "...claim that FBI agents manipulated official records ... is 'chilling'"

  4. "In the past the way I've put this is to say that Setting False Statement Traps Is Not Official FBI Business."

    Exactly. This is what caused my break with National Review. When Andrew McCarthy had one column defending this behavior against Flynn, I reluctantly accepted it. When he had a second column amplifying the first, I had had it. I wrote in your comments section something along the lines of "We should aspire to be better than this.

    This was in December of 2018 and I haven't been back since. Now McCarthy has somewhat redeemed himself, I take it from the comments that I read here and elsewhere. But it's too late for NR and me.

    Even with the good news that French and Goldberg are leaving, it's not enough. They need to get rid of Jay Nordlinger and Williamson. And I'll never forget Nicholas Frankovich's rhetoric. Though I give him a lot of credit for his apology. It's just typical of country club Republicans who are ready to believe the worst about the common man.

    1. As it happens, I started listening to an interview with McC last night re Flynn and had to stop. I thought it was totally wrongheaded.

    2. Given how N.F. MONSTROUSLY accused Sandman of spitting on the Cross, N.F.'s then conceding such words to be "preachy and rhetorically excessive" was pathetically inadequate.
      That NR didn't fire N.F. for that, after firing J. Derbyshire for at-worst trivially "offensive" writings (about reasonable white fears of blacks), was hopelessly degenerate.

    3. Oh yeah, I'd forgotten about that. Terrible.

    4. "That NR didn't fire N.F. for that, after firing J. Derbyshire for at-worst trivially "offensive" writings (about reasonable white fears of blacks), was hopelessly degenerate. "

      I totally agree with aNannyMouse and you about that.

  5. FWIW:

    I'll start reading something written by McCarthy...thinking he really does get it...and then he'll go and say something which excuses some transgression of a Deep Stater, or a RINO or a Never-Trumper. Or even a Dem.

    Or he'll say something which casts blame on Trump.

    I have concluded that McCarthy...undoubtedly a 'smart' guy and a good lawyer... still doesn't really get it.

    We are way past equivocation on the fundamentals. Or at least I think so.

    1. At your leisure, I'm curious about "equivocation on the fundamentals". Do you mean mainly by McCarthy here, or is there a broader point here?

  6. What do I mean by "equivocation on the fundamentals"?

    Its a huge question. I'll equivocate by just giving you an example.

    To me it has been established without doubt (i.e., fundamentally) that there was no 'Russian Collusion', that the CIA/FBI/Deep State has been in a conspiracy to destroy Trump by coup, and that Trump has committed no impeachable offense. It is/was all made up.

    In the fight to save our country and our constitutional system, these are given facts. In my humble opinion there is no room for equivocation.

    If you read McCarthy closely, he regularly equivocates. I meant McCarthy in particular, but in my opinion all the others at NR who are named do (or did) the same.

    Look, I'm not at all opposed to honest debate and I am certainly willing to get better educated, but if somebody is going to tell me that the problem was, for example, Russian collusion and not CIA treachery, at this point I'm not listening.

    1. Here's something he's said recently that I found frustrating. He said that Trump supporters should stop saying there was no quid pro quo and instead say quids pro quo are OK.

      I found that really dumb because we have the transcript for the call, and it's clear that there was no quid pro quo re the 2020 election, or just for dirt, but rather re corruption.

      You need to make the distinction between legit quid pro quo and--if not illegal, then--distasteful quid pro quo. We should fight the whole thing, because that's the truth.

      I was irritated to see that line picked up elsewhere. It's the kind of thinking that leads to avoidable defeats.

    2. Good example, Mark.

      I take his legal point, but unfortunately it suggests that there might have been a quid pro quo. Which, if I remember correctly, McCarthy posits c/would have been a legal (or unimpeachable) quid pro quo.

      This undermines our fundamental (if you will) position that there was no quid pro quo. Which there wasn't.

  7. Agree with all the comments on McCarthy. And add my own. He is a ponderous, tedious, pompous bore. His longtime #NeverTrumpism shows; but even if one could disregard that, he has little of value to say and buries it in far too many words. Did I mention tiresome. Enough.