the time for DOJ and Gen. Flynn to file Replies to the amicus brief arrived today. Those are the briefs I am reviewing today, with the DOJ brief up first. //

A lot will be made of Footnote 1 in the brief which addresses the production of a significant volume of material from the Flynn prosecutors following the transfer of the case to Judge Sullivan, and the entry by Judge Sullivan of his standing order on production by the government of Brady material to Gen. Flynn’s attorneys even though Gen. Flynn had pleaded guilty.

The Reply brief notes that the prosecutors produced approximately 25,000 pages of discovery in connection with Judge Sullivan’s order – documents that had not been provided to Gen. Flynn’s lawyers prior to his entering his guilty plea. In further notes that 21,000 pages of that material involved the FARA filing, and the remaining material dealt with Gen. Flynn’s January 24, 2017, interview, and the various interviews done with him as part of his cooperation with the SCO’s investigation.

Then it gets interesting when it refers to the 25 pages of material disclosed to Gen. Flynn’s attorneys in May 2020 as the result of the independent review conducted by U.S. Attorney Jeffrey Jensen. It states that these documents are relevant to the “discretionary decision to dismiss this case.” //

The final point I’ll make on the DOJ brief is that it lays waste to the claim by Flynn opponents that because Gen. Flynn has pleaded guilty, there is some heightened judicial interest in terms of the separation of powers concerns, and the Executive interest in controlling the charging decision is diminished. As Dep. Sol. General Wall stated in his argument before the Circuit Court, and as is repeated here, there is no basis in the case law for such a distinction. The constitutional concerns regarding separation of powers, under the case law, are the same in either circumstance.

Most significantly – from a nerdish lawyer point of view – is the point that dismissing an action is not a “judicial” act in the same way that entry of judgment or sentencing is a judicial act. Allowing the parties to jointly resolve and dismiss the dispute does not in any way give the resolution the imprimatur of judicial agreement with the outcome. It is nothing more than an acknowledgment by the Court that there is no further case or controversy for the Court to resolve.

The new documents detail the FBI's attempts to use a briefing ostensibly meant to warn the Trump campaign about foreign intelligence to spy on the campaign.

The New York Times in 2017 falsely reported that the Trump campaign had 'repeated' contacts with Russian intelligence officials during the 2016 campaign, and instead of being held accountable for publishing lies, the story's authors received Pulitzer prizes. //

The FBI official who ran the investigation into whether the Donald Trump campaign colluded with Russia to steal the 2016 presidential election privately admitted in newly released notes that a major New York Times article was riddled with lies, falsehoods, and “misleading and inaccurate” information. The February 2017 story was penned by three reporters who would win Pulitzers for their reporting on Trump’s supposed collusion with Russia.

The FBI’s public posture and leaks at the time supported the now-discredited conspiracy theory that led to the formation of a special counsel probe to investigate the Trump campaign and undermine his administration.

“We have not seen evidence of any individuals affiliated with the Trump team in contact with [Russian Intelligence Officials]. . . . We are unaware of ANY Trump advisors engaging in conversations with Russian intelligence officials,” former FBI counterespionage official Peter Strzok wrote of the Feb. 14, 2017 New York Times story “Trump Campaign Aides Had Repeated Contacts With Russian Intelligence.” That story, which was based on the unsubstantiated claims of four anonymous intelligence officials, was echoed by a similarly sourced CNN story published a day later and headlined “Trump aides were in constant touch with senior Russian officials during campaign.”

Strzok’s notes are the latest factual debunking of these stories, which were previously shown to be false with the release of Robert Mueller’s special counsel report finding no evidence whatsoever in support of the Hillary Clinton campaign assertion that Trump affiliates colluded with Russia to steal the 2016 election. A report from the Department of Justice Office of Inspector General on just one aspect of the investigation into Russia collusion — FBI spying on Trump campaign affiliates — also debunked these news reports. //

The New York Times declined to retract or correct the article three years ago, even after Comey testified it was false, on the grounds that the anonymous sources who fed the false information remained pleased with the initial story.

The damage this false story caused the Trump administration can not be overstated. It’s a story worth recounting here.

“The leaks are real, the news is fake,” President Donald Trump said on February 16, 2017, when ABC News’ Jonathan Karl asked him at a press conference to respond to The New York Times’ explosive report. As other reporters asked more questions related to the New York Times story, he went on to deride the media for writing negative and false stories based on anonymous sources.

The response was roundly mocked by a media class that asserted it was unimaginable that intelligence officials might be leaking anything but the most accurate information. CNN’s Jake Tapper, echoing other Democrat activists, called the press conference “unhinged.” //

Trump was right that the leaks were real but the news was false. Trump campaign aides did not have repeated contacts with Russian intelligence, contrary to what Michael S. Schmidt, Mark Mazzetti, and Matt Apuzzo breathlessly reported. Flynn was not a secret Russian agent. Neither was former Sen. Jeff Sessions. //

Comey did offer to brief congressmen and senators that the New York Times report was completely false. When those members said publicly that the New York Times report was false, that too was characterized as something nefarious.

Surprise: it wasn't actually a briefing. //

ODNI Ratcliffe was busy today. He declassified a now-infamous memo that reveals exactly what happened at an August 2016 FBI “briefing” of the Trump campaign. He gave the document to Congress and now we have it to share.

It was written by Joseph Pientka, a character whose name has popped up over and over throughout this saga. While the memo reveals nothing you likely didn’t already suspect, it does verify that the FBI was not actually trying to brief the Trump campaign. Rather, they were trying to elicit evidence for Crossfire Hurricane, the investigation targeting the Trump campaign at the time. //

The attempts to trap Trump began long before he took office, with this briefing being disguised as an attempt to warn the campaign. In reality, they were prodding for dirt they could use to push their investigation forward. Of note is that nothing of note came from the meeting. Trump did not offer evidence he was a Russian stooge, nor did Michael Flynn. It was another dead end, getting them no closer to proving nefarious Russian collusion than they were before.

That’s really why this is so damning for the FBI. This was yet another dead end they refused to pay attention to. Instead, the FBI and its band of corrupt stooges in leadership pressed forward, desperately searching for anything that could be used to stop Trump’s rise.

If it works, you gotta keep working it

While there is no set time limit for a vote, we should know the answer within about 10 days. And if we haven’t heard by then, here's what it likely means. //

Judge Emmett Sullivan has no business seeking a rehearing by the full D.C. Circuit Court of Appeals of the panel decision granting Michael Flynn’s petition for mandamus. Both Flynn’s attorney, Sidney Powell, and the U.S. government hammered that point yesterday in their answers to Sullivan’s petition for rehearing en banc.

Powell had sought mandamus from the D.C. Circuit after Sullivan refused to dismiss the criminal charge against her client. After uncovering exculpatory evidence Special Counsel Robert Mueller’s team had withheld from Flynn’s defense attorneys, federal prosecutors moved to dismiss the single charge of lying to the FBI that the special counsel’s office had levied against Flynn in late 2017. //

That evidence included notes establishing the FBI had no legitimate investigative purpose to question Flynn about his telephone conversations with the Russian ambassador and suggested instead that the ambush interview provide a perjury trap to out Flynn from the Trump administration. Even then, as revealed by additional notes disclosed last week, the agents who questioned Flynn did not believe he had lied during the interview.

That’s a provocative headline, I know.  But the odd nature of the Crossfire Hurricane investigation leaves you

New information casts even more doubt on the Steele dossier and reveals more wrongdoing on the part of the FBI in the Russia investigation.

Never Trumpers substitute innuendo and Mueller fabrication for facts about Roger Stone to the very end.

I wonder if anyone has read this to Mueller yet?

The innuendo that the Trump opponents have peddled in endless media pieces by blowhard mouthpieces like Jeffrey Toobin is that Roger Stone WAS a conduit for the Trump campaign to Russians wanting to assist Trump to beat Hillary Clinton, and Stone refusing to cooperate with Mueller has kept that information under wraps to the benefit of Trump.

THAT IS ALL A LIE. The Mueller Report sets forth the facts revealing this media narrative to be a lie. Toobin is one of the serial perpetrators of this lie.

The FACTS in the Mueller Report show Stone had NO connections beyond 3-4 Twitter messages in August with “Guccifer 2.0”, which amounted to nothing, one twitter exchange with someone on the Wikileaks Twitter account in October which was acrimonious, and one message from the same Twitter account in November that Stone didn’t respond to.

That’s it – there was nothing more. Stone is not, and never was, a link between the Trump Campaign and any Russian effort to influence the outcome of the election. He is not hiding any information in that regard for the benefit of Pres. Trump, and Jeffrey Toobin telling you that is true reveals either 1) Toobin hasn’t actually read the Mueller Report for himself, or 2) Toobin doesn’t understand the significance of what the Report does say. He’s still living the fantasy of what all those “anonymous” former IC community members whisper in the ears of CNN commentators when the lights go down on the set (apologies to James Gagliano).

I think we found something to agree on:

The Stone commutation represents a culmination (if not, necessarily, the final one) of Trump’s efforts to dismantle the legacy of the Mueller investigation.

I would say that the Mueller investigation was a farce, and it deserves the treatment it is getting from Trump, Barr, and other critics. The two most comprehensive indictments — the GRU Operative case and the Concord Management case, were both written with the full expectation that nothing in those indictments would ever need to be proven in a courtroom. When that turned out to not be the case with respect to Concord Management, the SCO tucked its tail between its legs and dismissed the case — folding up its tent altogether not long after. THAT is an embarrassment likely to never be lived down in the career of Jeannie Rhee, the lead prosecutor and Mueller acolyte on that case.

Earlier this week, DOJ released a letter sent to Sidney Powell, attorney for General Michael Flynn, which accompanied additional pages of investigative materials related to the investigation of Gen. Flynn. Those materials were initially subject to a Protective Order, in place so they could not be released publicly without permission from the Court. Earlier today, those materials, with some limited redactions, were released.

These materials include handwritten notes of Deputy Assistant Attorney General Tashina Gauhar taken during a meeting on January 25, 2017, the day after FBI Agents Peter Strzok and Joe Pientka interviewed Gen. Flynn in his White House Office. In her notes, she described the meeting as a “read out” by the FBI on the interview.

According to statements made by then-Acting Attorney General Sally Yates and former Assistant Attorney General Mary McCord, this meeting followed the unilateral decision by FBI Dir. Comey to interview Gen. Flynn over the objections of senior DOJ officials, who were not made aware that the interview was going to happen until after Comey had already dispatched Strzok and Pientka to the White House.

A falsehood in the Steele Dossier...tell me it ain't so //

We now know that the Alfa Bank server story appears to have been pushed on the feckless, credulous Foer by Michael Sussman. Sussman is a partner in Perkins Coie, that would be the law firm that was employed by the Clinton campaign which hired Christopher Steele and marketed his work to Washington political journalists. //

British ex-spy Christopher Steele must pay damages to two Alfa Bank partners for publishing “inaccurate or misleading” material in his infamous dossier, including claims the banks funneled “illicit cash” to Russian President Vladimir Putin, a British court ruled Wednesday. //

At this point, court losses for Steele are just icing on the cake. His dossier has been revealed to be, if not a fraud made up out of whole cloth, a product of the Russian intelligence services.

Sen. Marsha Blackburn

@MarshaBlackburn

Handwritten notes from a top FBI official show that Barack Obama and Joe Biden used the FBI to target Michael Flynn. They devised it, managed it, and oversaw it.

Lieutenant General Flynn, former National Security Advisor for President Trump, is a national figure. It took all of his personal resources, going broke and finally, through the good offices of a real attorney to finally come close to putting this three-year nightmare to an end (and it ain’t done yet). What do you think would happen to an old, beat down Infantry Colonel, Mike Ford or an an ancient, gray haired Navy Captain, Stu Cvrk in that position? What would happen to any of us folks in flyover country, without Flynn’s resources and national notoriety?

Some time back I wrote about government’s anti-liberty practice of “buying the pot” when going after someone who they really don’t have a case on. Essentially, the government takes advantage of its lawyers on salary, who can file subpoena after subpoena on a subject of investigation. That subject has to then reply to each of these through his lawyer, who of course charges by the billable hour.

This is exactly what happened in the Flynn case. The DC firm of Covington and Burling essentially billed him into penury, forcing him to sell his house. Once Flynn had no more money to pay them, he had no choice but to “fold.”
Again, what if this was you or me? If politically driven Federal or State prosecutors really wanted any of us, it wouldn’t be all that hard to spend us out of the game and into a coerced confession. That is why I disagree with the estimable General Flynn. His bit of promising news today, after a bitter three-year struggle, merely underscored huge issues in our Justice System.

Getting answers to Sen. Chuck Grassley’s questions will help expose some of the breadth and depth of the greatest political scandal our country has faced. //

The lack of any derogatory information in Halper’s file, notwithstanding his connections with Trubnikov, also proves extremely ironic given that the purported basis for continuing to investigate a retired lieutenant general, former Obama administration director of the Defense Intelligence Agency, and Trump’s national security advisor were conversations Flynn had with the Russian ambassador after Trump’s election.

So the same intelligence agencies that found nothing derogatory about an aging academic cozying up to a Russian intelligence agent found it concerning that an incoming member of the Trump administration, who held a top-secret clearance, would speak to the Russian ambassador. Unreal.

Regarding Durham’s probe — he said he was shocked at the silence from media on the collapse of Russiagate after all they did to sensationalize the allegations for years. Not even a “whoops” – just onto the next “false scandal”. No expressions of concern about “civil liberties or integrity of governmental processes” as reflected by that collapse. //

Most bluntly he said “This is the closest we have ever come to an organized effort to push a President out of office.” //

Maybe his strongest comments came at the end in discussing China, the CCP, and espionage aimed at stealing US technology.

He described it as a fundamental challenge to US prosperity, which he said has since the late 19th century come as a result of US leadership in technological development. In the last decade or so China has been explicitly pursuing their goal of supplanting the US in that regard.

Barr said what is at stake is nothing less than the economic opportunity of our children and grandchildren, as China will use any advantage it gains over the US in that regard for leverage.

But most significantly, he said the American business community has been a big part of the problem, and Pres. Trump has confronted this problem in ways that no one else before him has done. He said too many US businesses are willing to trade-off long-term viability of their companies for short-term profits, which then allow them to gain and execute stock options and realize personal wealth at the expense of future growth and opportunity.

Before examining the “separation of powers” argument, there is one point made in the DOJ Brief that has been made only by DOJ – and can only be made by DOJ, not by Gen. Flynn. This argument is not set forth as an independent basis for the motion to dismiss, but is incorporated into the “separation of powers” analysis. I think the issue is significant enough that it warrants separate treatment.

At the top of p.22, the Brief states:

“The Executive Branch is entitled to determine that, based on the circumstances surrounding the interview, it can no longer make the “policy judgement” that continued prosecution serves a substantial federal interest, referring to U.S. Dept. of Justice, Justice Manual § 9-27.001. //

A bit further down the page, the Brief returns to this issue:

“Although petitioner previously pleaded guilty, it is Justice Department policy that prosecutions should not be initiated – and thus should not be continued – “unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.” //

§ 9-27.220 states:

The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction,… //

These are all INTERNAL self-enforcement policies that belong solely to DOJ to consider. //

So apart from the issues involving “separation of powers” claims, DOJ’s opposition to what Judge Sullivan proposes to do is based on the principle that DOJ has an obligation unto itself to “keep its own house in order,” and to address matters involving internal policy violations when they become known. The SCO was not “independent.” The SCO was bound by all DOJ policies that apply to all other federal prosecutors.

Whether there exists an internal policy violation that requires a response in the form or a dismissal or something else, are matters beyond a discretionary review by the judicial branch.

At the end of the day, Judge Henderson may decide, based on the long and sordid history of this case, that it isn’t just Judge Sullivan’s amicus who is intemperate.Over the course of nearly two hours, a three-judge panel of the D.C. Circuit Court of Appeals quizzed attorneys for Michael Flynn, the Department of Justice, and Judge Emmet Sullivan. The questions posed during oral argument suggest the court is hesitant to order Sullivan to dismiss the criminal case against Flynn — at least at this time. How the court will rule, however, likely rests in the hands of Judge Karen Henderson.

Details released over the last month reveal Obama and Biden knew more about the Flynn ambush than previously realized. New subpoenas might prove how much.