DOJ drops case against Michael Flynn, in wake of internal memo release
OK, here's the nub of the DoJ motion to dismiss the case against Flynn (page 2 of 20--I'm still reading). The motion was signed by the USA for DC, Timothy Shea:
After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190, the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.” Ex. 1 at 4,FBI FD-1057 “Closing Communication” Jan. 4, 2017 (emphases added). The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.
I'll admit at this point that I'm a bit underwhelmed. I understand that Durham is probably investigating the Flynn prosecution in extreme depth, so the statement is cautious. My position remains that there never, at any point in the timeline, was predication for investigating Flynn. Hopefully Durham will expose all that. The paragraph above sidesteps the issue of the original predication for the underlying CI investigation by saying that the interview was "untethered" from that investigation--thus avoiding the need to pass judgment on what was clearly an illegal investigation to begin with. The government gives a nod to the WFO closing memo by saying that the WFO case was "no longer adequately predicated." The real question--which I adamantly answer in the negative--is whether it was ever adequately predicated. Again, I hope judgment on that issue will come later.
Another consideration. The government's motion doesn't address what we know from the revealed FBI documents--the real basis for interviewing Flynn and the pretextual nature of that interview. Stay tuned for more. If I were Flynn and Powell, I wouldn't be totally satisfied and, having got this far, I'd say so LOUD AND CLEAR.
OK--I'll just drop some important excerpts, with references removed for readability. Again, there's a disappointment in this for me. The way it reads it's as if Sally Yates wasn't on board with trying to screw Flynn. But the fact is, her idea of going to the White House and expressing concern about Flynn was precisely an attempt to get Flynn in trouble for doing his job. Further, the motion makes it sound as if the Logan Act nonsense was stricly an FBI fantasy, but we know that Yates and Mary McCord were behind it too. They just disagreed with Comey as to how to use it.
OTOH, the motion is totally clear that Flynn did nothing wrong and behaved entirely appropriately. It also clearly states that there was no ground for any investigation, including NOT the Logan Act. The failure to predicate this investigative activity--the interview--is something that I discussed at Victoria Toensing On Predication--And Me On The Logan Act:
The calls were 14 entirely appropriate on their face.
Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power.
They provided no factual basis for positing that Mr.Flynn had violated FARA. Nor did the calls remotely transform Mr. Flynn into a “viable candidate as part of the larger ... umbrella case” into Russian interference in the 2016 presidential election.
With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a 15 justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.
Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime. This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one, as well as its ongoing inability to espouse a consistent justification for its probe in conversations with DOJ leadership, ... In fact, Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation.
In short, Mr. Flynn’s calls with the Russian ambassador—the only new information to arise since the FBI’s decision to close out his investigation—did not constitute an articulable factual basis to open any counterintelligence investigation or criminal investigation.
UPDATE 1: Check this out! Yates says she learned about Flynn having a conversation with Kislyak FROM OBAMA! YOW! That's big. Per Byron York:
So Lisa Page knew what she was talking about: Obama really did want to know everything. And K. T. McFarland was right: It was approved/known about at "the highest levels."
UPDATE 2: Remember how the FBI's WFO opened a Full Counterintelligence against Flynn because he "traveled to Russia?"
Wait until the FBI find out that Bill Clinton took $500,000 for a speech in Moscow. They’ll get Susan Rice’s “book” and throw it at him— Undercover Huber (@JohnWHuber) May 7, 2020
How do you explain this stuff to an ambulance chaser lawyer?
Feel free to invite Bill Barr over to explain. He’ll eat your lunch for you. Again. https://t.co/OD400NOUkj— Undercover Huber (@JohnWHuber) May 7, 2020
Actually, Will Chamberlain does a pretty good job explaining this.
From the motion to Dismiss:ReplyDelete
>> After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,
the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.”
>> https://www.scribd.com/document/460363357/Flynn-Motion-to-Dismiss <<
re: cautious language re: predication --ReplyDelete
Is it possible Durham is working on the underlying original predication question, adn does not wish to reveal his hand yet?
Also, this motion was based on Jensen's analysis -- and his boundary was the Flynn case, not the predication of CH, under which the investigation of Flynn was initiated. It is thus not surprising that it does not address the larger predication issue, because it doesn't need to in order to justify dismissal.
Yes, and I sure hope so.Delete
As always, Mark, your analysis adds a great deal to a basic report. In this case, the motion to dismiss. Thank you lReplyDelete
FLOODGATES OPENING -- DOJ releases EC opening FLynn FULL CI investigation:ReplyDelete
>> https://twitter.com/JohnWHuber/status/1258479592173600769 <<
Quick glance--the same utter bullsh*t as in the closing EC. Corrupt.Delete
I get the idea that Judge Sullivan still has to sign off on this. Correct? Can Sullivan go even further and throw out the actual verdict? Or is that subsumed under the DOJ dropping the case? Can the judge make one of his extemporaneous speeches?ReplyDelete
Yes--it's not automatic that he accepts the motion, which is why Shea argues that motion is justified and should be accepted. And yes, the judge can and should have "stuff" to say about this.Delete
>> Undercover HuberReplyDelete
“the FBI [7th floor] sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens” <<
Yes. That suggests that Shea thinks this is a due process issue. He speaks here in seemingly absolute terms, not re "DoJ Guidelines" being sidestepping but rather of a constraint on "the investigative reach of law enforcement" in general.Delete
This is what I addressed here:
To me this is a very big deal. Or as Shea says: "modest but CRITICAL".
The filing confirms your previous analysis: it's all about predication, or the utter lack thereof, to be more specific.Delete
I was very glad to see those passages. It's an issue that's fundamental to rule of law--so endangered by liberals.Delete
"not re 'DoJ Guidelines' being sidestepping but rather of a constraint on 'the investigative reach of law enforcement' in general."ReplyDelete
IOW, concern is violation of Constitution, not DOJ/FBI policies & procedures. Laying the stones for Color of Law prosecution(s)?
Gotta be in their minds. IMO.Delete
Whatever other laws they may have broken -at least in spirit- the Color of Law thing is a crystal clear, no-brainer, slam dunk.Delete
Just watched Will Chamberlain's video -- it is really good, especially his explanation that Flynn's "guilty" plea doesn't mean he committed a crime.ReplyDelete
Yes, I saw it. Very good.Delete
Then there's this:ReplyDelete
What's the statute of limitations for perjury?
Will Flynn spend a large part of the rest of his life awaiting revenge? Because that is a significant part of SPECTRE's (Special Prosecutors Ensuring Control Terror Revenge & Extortion) business model.
It's true. Although it would be a very tough case to make, because Flynn was never allowed to see the transcript of the call. His version is that he figured the FBI wouldn't lie so their version musta been correct. It was only when he got competent counsel that he realized how bad the government case was. How do you refute that defense--beyond a reasonable doubt?Delete
Then he should have said that in court. Instead he stated, at length, that he lied, he knew he was lying and he did it anyway. He didn't say "I might have inadvertently told an untruth" or "They say I lied so I must have". He said unequivocally that he knowingly lied. Not once in his plea did he express doubt about it, so saying later that he was just going along to get along will be an incredibly weak defense, no matter how true it might be. The words came out of his mouth, no one else's.Delete
This is why I hope Trump doesn't do something dumb and offer Flynn an official position in his admin. Flynn is plainly to gullible and weak willed to play in the big leagues.
I wish him well, he seems to be a nice guy, but he just needs to retire to a little cottage in the country and putter about the garden till he goes to his reward. These are perilous times and I fear he would be more of a burden in a gun fight than a help. You would never know if he was just going to lay down his gun because the other side told him he was out of bullets. They wouldn't lie to him, would they?
In defense of Trump picking Flynn, who in the NatSec world could he trust? He went with the guy who backed him. But based on what I'd heard of Flynn I thought no good would come of it.Delete
I agree completely. Unfortunately so did the other side. As Comey smirked during his interview on stage in NYC they evaluated that the Trump campaign was naive and inexperienced and determined to use that to their advantage. Inevitable considering Trump was in hostile territory the moment he crossed the Potomac.Delete
There is a reason Flynn was given the d up the rear.Delete
Yet, some things do not add up.
That said, ever been in a 8x10 ten space with 2 cops from another agency challenging your statewide authority to arrest on a municipal, traffic, warrant?
Yeah, ya act a bit different. Although I told one to try to arrest me.
Right, only Flynn knows why he did what he did, well, I’ll bet Powell knows too.
"[H]e stated, at length, that he lied, he knew he was lying and he did it anyway. He didn't say 'I might have inadvertently told an untruth' or 'They say I lied so I must have'. He said unequivocally that he knowingly lied."Delete
If his case is dismissed, doesn't that take his plea "off the table" as "evidence" that can be used against him later in another charge?ReplyDelete
The plea itself is simply a fact--it doesn't just disappear. OTOH, read p. 19 in which the government explains why they believe Flynn's plea was made without full awareness of all the circs. That's also a fact that isn't going away.Delete
Schiff folds and releases transcripts he's been hiding in his underwear:
>> https://intelligence.house.gov/russiainvestigation/ <<
Oh my! I'll never get caught up on my reading now!Delete
It's worse than you think:Delete
Grenell is on video this afternoon "delivering" unknown "documents" to DOJ.
More shoes are going to drop....
LOL! Maybe those were Brennan's emails with Comey. Whatever it is, it's bad news for the Deep State.Delete
I hafta wonder, based on the gentle treatment she gets in the motion, whether Sally Yates is cooperating--also bad news for the Deep State. She signed off on the second FISA, when all was known about Steele.
The thought I had about the Grenell/DNI Document Dump today is that it must be stuff for Durham, and Grenell isn't taking chances with couriers. Must be something very hot, or something they want the Coup plotters to *think* is very hot.Delete
Regarding Yates, there is a document floating around tonight that appears to be a summery of her testimony, regarding the January 5th 2017 meeting in the Oval Office with the rest of the Coup Plotters, where Obama was briefed about the ICA.Delete
It was during this meeting, or the one with fewer players immediately afterward that she learned of Flynn's call with Kislyak, from Obama himself.
But the point that got my attention was the list of attendees; most of whom we know about, including Obama NS adviser, Susan Rice....., but then it it says in addition to Rice were "and others from the NSC."
One name immediately popped into my head: Ciaramella.
Um, an excerpt from that Yates document--it's her interview with the SCO--is included in UPDATE 1 above.Delete
yup; that's the one.Delete
Speaking to EZ @ 5:35 above:Delete
When I saw this reported breathlessly as videoed on a "tip" I immediately thought, "Trump, the master of Reality-TV."
Very dramatic coming on the heels of other announcements today.
Addressing EZ's comment @ 5:35:Delete
The segment I saw that on said something about the media being "tipped off" about Grenell personally delivering documents to Barr in a "non-descript" bag.
I had to smile. Trump, the absolute Master of Reality-TV giving us some "Very nice drama", as he would say, on a day of drama.
Apologies for the essentially double comment. My computer hiccuped just as I published the first one and I had the impression it didn't send correctly.Delete
>> Kevin Corke
#NEW Sources tell @FoxNews acting DNI @RichardGrenell planning to release new trove of documents as early as tomorrow. Expected to be related to the #Russia probe and will be significant. Per @edhenry <<
Not much to add other than my elation for General Flynn and my outrage at the human scum who did this to him. I hope that they get everything that is coming to them.ReplyDelete
P.S. I think that you and Tom S. are too hard on the general. He is a good man who has served his country honorably. He was willing to take the hit to protect his son. This is the mark of a good man. He should never have been put in this situation.
To paraphrase Bluto from Animal House "Comey? Dead man! Mueller? Dead Man! Weissmann Dead! Page? Dead? Clapper? Dead!"
In case you've missed Barr's interview:ReplyDelete
Unfortunately he kept his cards (for the future) close to his vest.Delete
Now this is VERY interesting:ReplyDelete
SChiff releases transcripts...
Now Grenell has released 53 transcripts on the ODNI website....
Why would Grenell feel the need to duplicate SChiff's document dump? Is it because Schiff's documents have extra redactions, or deleted material?????
This could be glorious.....
>> https://www.dni.gov/index.php/features/2753-53-hpsci-transcripts <<ReplyDelete
Grenell just released all 53 HPSCI transcripts on the DNI website.
WHy would he do that after Schiff has putatively released them?
Could it be that SChiff's versions have extra redactions not required by the IC, or has deleted or otherwise altered content??????
This could be glorious....
Giuliani on Laura Ingraham tonight said something very intriguing, something to the effect of:ReplyDelete
"trace the whistleblower (Ciaramella, presumably) and he will take you back to the VERY beginning of this whole thing."
He also things Schiff is much more deeply involved that it appears.
That doesn't surprise me.Delete
The list of persons in the transcripts is somewhat different between odni and the house.
>> After the House Intelligence Committee released dozens of witness transcripts from its investigation into Russian election interference on Thursday, Fox News chief White House correspondent Ed Henry reported two sources told him acting Director of National Intelligence Richard Grenell is prepared to unveil additional documents that will show how Chairman Adam Schiff and other investigators "knew for a long time there was no collusion" between the Trump campaign and the Kremlin "even though they kept saying they had direct evidence."ReplyDelete
Multiple Obama administration officials, including former Director of National Intelligence James Clapper, told investigators behind closed doors that they had not seen "empirical evidence" showing members of the Trump team were conspiring with Russia to meddle in the 2016 election, according to the newly released transcripts.
Attorney General William Barr received a separate "satchel" of documents, Henry said in a report Friday evening on Tucker Carlson Tonight as Fox News aired video that a producer took of Grenell personally delivering them to the Justice Department.
Henry noted that his sources would not say precisely what was in the satchel, but they expect the contents could be made public as early as Friday.
The reporter also said that while a senior administration source told Fox News previously that Schiff was in "panic mode" about the House Intelligence Committee witness transcripts, the California Democrat may be "even more panicked" now. <<
>> https://www.washingtonexaminer.com/news/richard-grenell-delivers-satchel-of-documents-to-doj-that-shatter-schiff-collusion-claims-report <<