Saturday, November 9, 2019

Let's Review The Flynn Case

We're waiting for a key ruling in the Flynn case, and it could come before Thanksgiving. That being the case, this may be a good time to review what we know about the case.

It's widely believed that the Obama Deep State effort to frame Flynn may have begun as early as 2014. The animus toward Flynn was almost certainly fueled by his insistence on expressing his view that the rise of ISIS was the result of a knowing policy decision by the Obama administration. It's also probable that personal conflicts with other IC players like John Brennan (CIA) and James Clapper (DNI), as well as a very personal conflict with FBI Deputy Director Andrew McCabe played into this.

What form this effort took in its early stages is, as yet, unknown to the general public. No doubt, following Flynn's retirement from his position at the head of the Defense Intelligence Agency (DIA) in August, 2014, the Deep State kept an eye on Flynn's activities and his continuing interviews in which he blamed the Obama Deep State for the rise of ISIS. However, as the early stages of the race to replace the Obama administration began to shape up, Flynn was consulted by several Republican presidential campaigns, including: Carly Fiorina, Scott Walker, Ben Carson, Ted Cruz, and Donald Trump. By December, 2015, Flynn was very much a target for the Deep State and the Clinton campaign.

It was on December 10, 2015, that Flynn attended a gala dinner in Moscow in honor of RT (formerly "Russia Today"), sitting at the same table as Vladimir Putin. It appears that this event plus the allegation that Flynn had had an affair with a Russian-born UK academic, Svetlana Lokhova, was cobbled together and used to initiate a Full Investigation of Flynn by the FBI. The allegation, and the smear that Lokhova was a Russian agent, was disseminated by (among other Deep State operatives) the CIA/FBI asset Stefan Halper.

While the time frame is not entirely clear, and the investigation may not have been initiated until Flynn was asked in February 2016 to serve as an adviser to the Trump campaign, we do know this. When the FBI officially opened its Crossfire Hurricane investigation of the Trump campaign at the end of July, 2016, it was opened as an "enterprise counterintelligence investigation." That means that the FBI was claiming that a subgroup of the Trump campaign was acting as an "enterprise" that was an agent of a foreign power--Russia. Disgraced former FBI Director James Comey, in testimony to Congress, described the subjects of Crossfire Hurricane as "four Americans," and one of those Americans was Michael Flynn.

That sets the stage for the "Flynn case" as we know it, involving the business of Flynn's telephone conversations with the Russian ambassador.

At this stage we need to be clear about one thing--something that the FBI did not do. At no time between the opening of the Crossfire Hurricane investigation at the end of July, 2016, and the FBI interview of Flynn on January 24, 2017, did the FBI brief candidate Trump, President-elect Trump, or President Trump that Michael Flynn--either as a campaign adviser or later as National Security Adviser--was regarded by the FBI as an agent of the Russian intelligence services.

That is extraordinary, and yet it has scarcely been remarked upon. The FBI is the lead counterintelligence (CI) agency of the United States government, tasked with preventing or uncovering threats to our national security in the form of agents of foreign intelligence services. The president has the absolute right to know of such threats, and the FBI has an absolute duty to brief the president on such threats--certainly when the person under suspicion was first an adviser to the new president's campaign and then was made National Security Adviser. There could hardly be a greater threat to the national security than that. And yet the FBI said nothing about this to the president.

Was that because the FBI seriously believed that President Trump was an agent of Russia--under the direction and control of Vladimir Putin--and thus could not be trusted with such sensitive information? I doubt that. Trump was, in any case, privy to vast amounts of incredibly sensitive national security information. The real reason was almost certainly because the Deep State was engaged in a plot against the president, and the method of first choice--after the leak of the Steele "dossier" had failed--was to attack President Trump by bringing down Michael Flynn.

What we need now is a bit of perspective on this business of the FBI "opening investigations" on people--people like Michael Flynn or Donald Trump. Part of our legal and constitutional heritage is the two concepts of "rule of law" and "due process." It is emphatically not part of that heritage that the government--here meaning: the FBI--should open investigations against people that it simply dislikes or with whose politics or policies they disagree. Investigations are to be against crimes, not against persons per se.

This constitutional principle is embodied in the Attorney General's Guidelines that govern FBI investigations. Thus, with regard to Full Counterintelligence investigations, the FBI must conform to these criteria:

Predication Required for Full Investigations:
A Full Investigation may be initiated if there is an articulable factual basis for the investigation that reasonably indicates that one of the two conditions specified above (with regard to Preliminary Investigations) exists.

As I added in A Guide To Spygate, Informants, FISA,

Does this suggest why the FBI and DoJ are so intent on preventing Congress from reading the EC that opened the Crossfire Hurricane Full Investigation on July 31, 2016? It should, because that EC would have had to state the "articulable factual basis" for the investigation. In other words, the EC would have had to assert that there were specific, verified facts indicating that a ​threat to national security actually existed, and it would have had to explicitly state what those facts were. When someone determinedly attempts to withhold a document of that sort from Congress I think we're entitled to draw some adverse conclusions. (Slightly edited from the original.)

And so, too, the FBI, when it opened it's Full Investigation of Michael Flynn, would have had to state, in writing and with specificity, an articulable factual basis that reasonably indicated ... that Michael Flynn was acting as an agent of the Russian intelligence services.

Wouldn't you love to read that memo or EC? So would Sidney Powell. She understands exactly what was going on, and how the lack of Predication runs like a thread through the entire case, the factor that the FBI and Team Mueller are always trying to direct our attention away from, by repeating like a mantra that "Flynn lied," "Flynn pled guilty," "nothing else matters." But as Powell wrote most recently:

The government has known since prior to January 24, 2017, that it intended to target Mr. Flynn for federal prosecution. That is why the entire “investigation” of him was created at least as early as summer 2016 and pursued despite the absence of a legitimate basis. ...
Former Deputy Director Andrew McCabe as much as admitted the FBI’s intent to set up Mr. Flynn on a criminal false statement charge from the get-go.On Dec. 19, 2017, McCabe told the House Intelligence Committee in sworn testimony: “[T]he conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview ... the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” ...

In other words, how would the agents go into the interview expecting false statements. Powell, the former prosecutor gets this:

Had the FBI not intended all along to create a false statement case, there would have been no “conundrum” at all. The matter simply would have concluded with the interview. Further, there would have been no comment about “a false statement case”—because no such case would  be assumed. Finally, there would be no lamenting the “poor start” of a false statement case,[5] because there would not have been “a start.” False statement cases normally arise incidentally when government agents are investigating a matter and the interviewee makes a misstatement about that matter. Agents then seek to get to the truth by giving 1001 warnings to coax truthful information from the suspect. But here, to use Strzok’s own words, the investigation was “a  pretext;” the object of the interview was to secure, rather than prevent, a 1001 violation. The “poor start” further reveals Mr. McCabe’s determination to create a case despite the agents’ belief Mr. Flynn was telling the truth.

And from this we can also see that Powell's (and Flynn's) disclosure requests are not simply a fishing expedition. The EC that opened the Flynn investigation was classified at least as SECRET. Flynn's original legal team never had access to classified information, so they never knew the actual basis for opening the investigation of Flynn. In fact, Flynn may for quite a while have assumed that the FBI was telling the truth, and that the prosecution he faced had only to do with his conversations with the Russian ambassador. But that was certainly not the case. The supposed interest in the conversation with the ambassador--which they had already listened to--was, as Peter Strzok would put it, a "pretext." That's why Powell wants to know everything about the FBI informants and their contacts with Flynn, about what previous investigation the FBI and CIA had conducted, both in the US and abroad. She knows that the FBI's supposed "predication" to investigate Flynn was all pretextual, and she's confident she can show it if she can get the documents released.

This brings us up to January 23, 2017. Here's how Sidney Powell explains what happened, based on testimony of FBI officials:

January 23, the day before the interview, the upper echelon of the FBI met to orchestrate it all. Deputy Director McCabe, General Counsel James Baker, Lisa Page, Strzok, David Bowdich, Trish Anderson, and Jen Boone strategized to talk with Mr. Flynn in such a way as to keep from alerting him from understanding that he was being interviewed in a criminal investigation of which he was the target. (Ex.12). Knowing they had no basis for an investigation, they deliberately decided not to notify DOJ for fear DOJ officials would follow protocol and notify White House Counsel.

As we have seen, the FBI already had a Full CI Investigation open that was targeting Flynn. They had no False Statement investigation open, for the simple reason that they had not taken any statements from Flynn at that point. The FBI, I believe, was using their open CI investigation as a pretext to interview Flynn, hoping to catch him in statements that they could construe to be false. If this were not the case, the FBI would have been in the untenable position of conducting official investigative activity without an open case file--a huge no-no. Flynn, who would have had no understanding of the AG Guidelines, accepted the bogus reasons Strzok and Pientka offered for coming to talk to him, but to cover themselves the FBI needed an already open case file before they went to talk to Flynn. There could be other possibilities--various "control" files--but I believe that the greater likelihood is that they used the already open file on Flynn. They were piling lack of predication upon lack of predication.

Now, just because the FBI has an open investigation, that doesn't mean that they can simply attempt to trick someone into making arguably false statements. Here's how it probably worked. If questioned, the FBI would assert that they interviewed Flynn because of their suspicions that he was a Russian agent, and that they were seeking to sound him out about matters in which he might let slip information that had to do with that suspicion. In reality, they were looking for statements that could be construed as false, and it all centered on Flynn's conversations with the Russian ambassador. In other words, they were looking for statements that would allow them to open a whole new investigation--a False Statements investigation. And that's why there were "many meetings" at FBIHQ in preparation for the interview, and why there was so much stress on not "alerting [Flynn] ... that he was being interviewed in a criminal investigation of which he was the target." They didn't want Flynn put on guard and correcting any careless statements.

We know that this ploy didn't get off to a good start, as Andrew McCabe admitted in that remarkable comment during his Congressional testimony, when he stated that the fact that Strzok and Pientka thought Flynn was being truthful was "not a very good start to a False Statements investigation." This is why, I believe, there was such a delay in putting the 302 of the interview in final form, and why it had to be revised several times. And why the original 302 had to be concealed.

The FBI wasn't sure they had a case at all. In fact, Flynn was forced to resign because of the conflict with VP Pence, not because of the FBI interview. It was only months later that Team Mueller decided that it really was possible to make bricks from straw. And so Flynn was charged with "lying" about matters that were perfectly proper and were no business at all of the FBI. Here's how Larry Johnson explains it:

First, Michael Flynn did nothing wrong or inappropriate in speaking to Russia's Ambassador Kislyak. He was doing his job as an incoming National Security Advisor to President Trump.
Second, not "recalling" what Ambassador Kislyak said (or did not say) on 22 December is not lying.
Third, even if Flynn did ask the Russian Ambassador on the 29th of December to "refrain from escalating the situation" in response to the U.S. sanctions imposed by Barack Hussein Obama, there is nothing wrong with that. In fact, that is wise counsel intended to defuse a situation.

Now we can begin to see the fix that the FBI and Team Mueller find themselves in. Powell sees it too, and she sees that the lack of predication is the Achilles heel for the FBI and Team Mueller.

The prosecutors are desperate now to conceal the fact that they never had any semblance of predication to investigate Flynn--ever. It was always a frame-up, and if that lack of predication comes out, through the disclosures of classified documents that Powell is seeking, the conspiracy against Flynn will be in plain view. (It will also, of course, shed unwelcome light on the entire Russia Hoax and the plot against the president.)

Look at how the Team Mueller case against Flynn worked. They never wanted to go to trial where they'd be forced to prove their case beyond a reasonable doubt, because they knew that was a long shot. They knew the problems with the FBI's case, the problems with the lack of predication, the "pretext" interview, the delayed and revised 302s. So, first they tried to force Flynn into a FARA problem, requiring his lawyers to flie, but that was a smokescreen at best. FARA is almost never used to prosecute, as we've seen with Manafort and others. FARA is used as a criminal predicate where a criminal predicate is required for other charges, not as a standalone charge. We saw how the FARA case against Flynn's former partner was tossed by the judge after a jury verdict against the partner--an almost unheard of occurrence. Ultimately, Team Mueller was able to coerce a plea from Flynn only by threatening Flynn's son, as Powell has stressed in her filings:

The government fails to mention that, to obtain the plea, it threatened Mr. Flynn with indictment the next day, the indictment of his son who had a new baby, promised him "the Manafort treatment,” and promised to pile on charges sufficient to put him in prison the rest of his life. The short fuse was no doubt motivated by the government’s knowledge, which it did not disclose to Flynn, that the salacious Strzok-Page emails, disclosing their vitriolic hatred of President Trump and his team, the key agents’ affair, and their termination from Mueller’s Special Counsel operation were going to be exposed the very next day. No individual, no matter how innocent, can withstand such pressure, particularly when represented by conflicted defense counsel. The advice a client is given by his lawyer in such fraught circumstances can make all the difference between standing his ground or caving to the immense pressure. Mr. Flynn caved, not  because he is guilty, but because of the government’s failure to put its cards on the table, as  Brady, requires, and its failure to ensure that Mr. Flynn was represented by un-conflicted counsel when he was forced to make that decision.

These audacious and unethical tactics were required precisely because Team Mueller was in no position to go to trial. If they had been forced to go to trial they would unquestionably have had to provide the defense with all the documentation that Powell is now demanding, and their case would have collapsed. As it is, they're now fighting a desperate rear guard action. And a day of reckoning is approaching.


  1. Replies
    1. Thanks so much, Yancey. I really struggled with it and had doubts that it was adequate. It's really complex, yet in some ways it gives us the most insight we have at this point into the coup attempt.

  2. You've probably written about this elsewhere, but I'm not seeing where Flynn's original lawyers were conflicted.

    1. Yes, you're right:

    2. Mistcr,

      Flynn's original legal team was pressed by the DoJ to file the FARA filings, and with the DoJ's aid according to Sidney Powell. These filings were then used by the Mueller Inquisition to pressure Flynn into pleading on the lying charge. As it turned out, Flynn's partner was indicted and tried on the FARA charges anyway, and that case got a directed verdict in the partner's favor, so the original FARA charges were always illegitimate in Flynn's case, too.

      I think Flynn's lawyers set him up with the aid of David Laufman, an Obama holdover in counterintelligence at the FBI. It probably isn't a coincidence that Eric Holder is a partner in that law firm. I think the firm isn't just negligent here, but was an active participant in the effort to get Flynn jailed.

    3. Thanks for the reference.

      So, is the idea that Flynn's attorneys were actually working for the other side? Or did they just do a bad job?

      Because the former takes the whole conspiracy angle to a level that is both scandalous (understatement) and a little hard to believe.

    4. mistcr, Yancey's response is right on. It should've been an easy call for Flynn's lawyers to recuse themselves--if for no other reason, then out of an abundance of caution. But the fact is, there were solid reasons to recuse. Which does, yes, lead to suspicions.

    5. Thanks, I hadn't seen Yancey's response.

      Imagine having your own counsel in cahoots with the prosecution!

      Doesn't that go beyond conflict into criminality?

    6. At that point you get into questions of proof. I'm pretty sure Powell is asking for communications between DoJ/FARA and the lawyers. Not sure, but I know she's asking for stuff re DoJ/FARA.

  3. I just hope Sullivan does the right thing and orders all the material to be released to Powell, but I am not as hopeful as some are about Sullivan even taking the easy path and just dismissing all the charges with prejudice. Sullivan is no doubt getting immense political pressure to not only deny Flynn on the Brady motion, but to also keep in place Flynn's coerced plea. I don't think, in the end, it will matter- Flynn will eventually get it dismissed on appeal, but Sullivan might well force him to appeal all of this.

    1. I agree for the most part. However, I will repeat: When Sullivan bucked the system in the Stevens case he was bucking and embarrassing Eric Holder.

    2. Yes, but you have to remember- the Stevens case was filed under the Bush DoJ- only thrown out under Obama.

    3. I thought I read somewhere that Sullivan was practically a crusader regarding prosecutorial abuse. Is that not accurate?

      I'd anything like that were true then this would be a dream case.

      But, then, didn't Sullivan castigate Flynn at the last hearing? Had Flynn changed counsel by that time?

    4. Reading up on that, it was interesting to see how the entire GOP threw him under the bus--not just the Dems. So, Sullivan bucked a bipartisan consensus.

    5. I wonder if there's a third path for Sullivan... Order (and ensure) all the Brady disclosures Powell is seeking and let the chips fall. All the evidence in the plain light of day may reveal an obvious course of action. As the whole point of a trial is fact-finding, just get on with the disclosures.

    6. Absolutely possible, and that would really put the ball in Team Mueller's court. Do they move to dismiss? They'd have to give a reason. This is a good option for Flynn, but there really aren't any good options for Team Mueller at this point. As Yancey and I have been saying, Flynn is certainly going to be exonerated at some point. IMO, Team Mueller is backed into a corner.

    7. mistcr, it's true, Sullivan is a bit of a crusader for fairness. His rant at Flynn happened quite a few months ago, and at a point when he lacked most of the facts. As a result Sullivan came back and pretty much apologized to Flynn.

  4. Let's assume for the sake of argument that you have a cabal of dirty cops that decide to embark upon a serious (albeit risky) criminal enterprise, but absolutely don't want to get caught or otherwise suffer any adverse consequences such as revelation, investigation, or prosecution.

    Is it likely that violating the rules of predication would offend their conscience or inhibit their actions?

    Probably not the former, but it should have guided their actions because violating it left a traceable evidentiary trail. A smart criminal would not have been so careless.

    So what is the moral of this story. Comey is as bad a crook as he was an FBI Director.

    1. All that you say is true, but there's another alternative--which is that they were convinced from past experience and their knowledge of the federal judiciary that they could get away with it. That's what I believe, and it's very disturbing.

  5. "At no time... did the FBI brief candidate Trump...."
    Mark, do you know, if Ms. Powell has made that very major point to the judge?

    Also, when you say that the ruling could come before Thanksgiving, how does this square with Ms. Powell's comment, that we'd likely see a ruling w/in 2 weeks (from when she said such, early last week)?

    1. 2 weeks from early last week would be "before Thanksgiving." Was that a trick question of some kind?

      While I don't know whether Powell has made that point to the judge, I doubt that she's missed it. Right now her motions have been directed toward Brady matters, but that could come up when she moves to dismiss, as she says she will.

    2. Sorry, I should've made clear, that "COULD come before Thanksgiving" leaves room for it coming after Thanksgiving, contrary to her drift.

  6. I assert it is not just a group of dirty cops. Their own words belie that. This goes straight to President Obama.

  7. In our legal system, probable cause is the level needed to effect an arrest or obtain an arrest or search warrant.

    The information that we know of meets and exceeds that level.

    The fact that no one has been arrested, charged, indicted, etc is flat out due to politics.

    Regular folks do not have this accommodation.

    What makes these people special?

    Their jobs!

    Let that sink in.

  8. The more I hear, the more I marvel at Flynn's naivete.

    I understand the meeting with Strzok, especially since FBI put so much effort into setting him at ease. But does he not know that the IC hates him?

    How long does it take for it to dawn on him that the fix is in? Why would he work with Holder's firm?

    Is it no wonder that half of the bill of rights were focused on protecting against prosecutorial abuse?

    1. Same here. His own worst enemy.

    2. Conjecture

      Maybe he felt he had enough "juice" due to his positions that things would be ok.

      Moreover, Comey admitted he sent agents to him that he would not have done under any other president. Flynn had no reason, it apoears, to believe it was an interrogation needing criminal representation.

      Thing is, the agents, Strozk and Page, stated he was not lying.

      The FBI already had the conversation in their evidence. They knew nothing illegal occurred. When Flynn did not give them a process crime, the FBI manufactured one.

      How Judge Sullivan does not toss this out is beyond me.

      All this is movie stuff.

    3. "Maybe he felt he had enough 'juice' due to his positions that things would be ok."

      That's my view.

  9. I wanted to let you know that you received some prominent mentions last week.

    One was courtesy of Thomas Lifson at the American Thinker. Another came from Undercover Huber's twitter feed. The third was another mention in the American Thinker courtesy of Patricia McCarthy.

    1. Yes, I saw those--thanks. I have a good cooperative relationship with AmThinker. It would have been nice if UC Huber had provided a link. I'm rather--or, very--old fashioned about promotion. I don't do it.

  10. I assume that you mean self-promotion.

    In any event, your name is getting out there. I'll bet you are read by many politicians, media and Deep Staters.

  11. "I'm rather--or, very--old fashioned about promotion. I don't do it."

    Yes. Your work speaks for itself.

  12. Question. Does Flynn have a valid case for malpractice against his former law firm, given their conflict? What would be their defense if any?

  13. Exactly how strong would Flynn's case of malpractice be against his former firm? What would their defense be? What damages might he claim? I must imagine the Ms. Powell is not cheap and his former law firm would have been very expensive for the period they were his counsel. Flynn had not been in private world very long, so it is unlikely he had earned real capital.

    1. I don't consider myself competent to offer that opinion, the pros and cons, because I have zero experience in that field. I'll simply say that it does appear to be a for real possibility. How it would be handled/settled is another matter. Powell has made some very pointed remarks, and in fact stated unequivocally that there was a conflict. That's different than launching a malpractice suit, of course, but at the same time that statement to the court must be made with a good faith belief, just like her accusations of government misconduct. So I think she's serious.