DOJ dropping criminal case against Gen Flynn (UPDATE: DC Cir. dismisses case) (8 Viewers)

Savage said:

Moose, do you have a list of acceptable websites and authors we can reference so that we don't read propaganda and engage in wrongthink in the future?

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Come on this is just comical.

Plenty of web sites rate news organizations.

Might I suggest you use your Google machine

Beach Friends said:

Figures you would resort to rage and insults rather than just acknowledge that you did not comprehend the article you brought to us.

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Find one

If you can.

Hi Moose, you linked the NY Times opinion section which has a far-left slant to it. (https://www.allsides.com/media-bias/media-bias-chart) I just wanted to make you aware that what you linked may less than accurate due to it's bias as well.

The article I linked is from The Hill, which is rated as completely neutral. While you may take issue with the author of the opinion piece, note that their neutral rating should help eleviate some of your concerns regarding what he was allowed to write and publish.

The moose said:

Find one

If you can.

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Find one what? An article that you will read? Hell, you didn't read the one that you linked so I don't know that is possible.

Savage said:

Hi Moose, you linked the NY Times opinion section which has a far-left slant to it. (https://www.allsides.com/media-bias/media-bias-chart) I just wanted to make you aware that what you linked may less than accurate due to it's bias as well.

The article I linked is from The Hill, which is rated as completely neutral. While you may take issue with the author of the opinion piece, note that their neutral rating should help eleviate some of your concerns regarding what he was allowed to write and publish.

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An opinion piece is just that.

And yes people are up in arms when I point out Andrew McCarthy is a hack and just how much he has been wrong about in the past and what he has pushed.

The meat of this thread is his opinion piece. The same guy not only wrong but dead wrong on other things.

Was Jamal khashoggi a bad man? Was he an Islamic terrorist?

Or was that propaganda?

So what is this?

Beach Friends said:

Find one what? An article that you will read? Hell, you didn't read the one that you linked so I don't know that is possible.

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Find one article defending Barr's actions that is not an opinion piece.


This should not be so hard?


Will check in on you later and expect to see one.

And don't give me the national report or the likes please.

Come on real news.

The win here is if you find one will gladly give you a my bad.

If you don't you spend time reading real news sites looking.

The moose said:

2000 former and current DOJ employees have called for Barr's head for this says way more than the absolute hacks you keep posting.

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I'm guessing you had no idea that is a left wing group that was created to oppose Trump. Yawn.

The moose said:

Find one article defending Barr's actions that is not an opinion piece.

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What? Wouldn't any article that defended (or criticized) Barr's actions necessarily be an opinion piece in fact if not in name?

McCarthy basically says "I agree with Barr that because the counterintelligence investigation was BS, then Flynn's lies were not 'material,' but the DOJ should have dropped the case because it was a crappy case anyway."

He mischaracterizes the scope of the CI probe to fit his argument that it was BS:

"The FBI opened a counterintelligence probe of Flynn in August 2016 on the absurd ground that he might be a clandestine Russian agent. (Flynn is a retired three-star Army general and decorated combat commander, who had then recently written a book identifying Russia as a committed global adversary of the United States.)"

In truth, the FBI was trying to determine whether Flynn was "being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly be a violation of [FARA] or other related statutes." Sure, the CI probe encompassed exploring whether Flynn was a "clandestine Russian agent," but it also encompassed whether he was simply coordinating activities with Russia in a way which might be illegal or impact national security. Which he was.

The call with Kislyak wherein Flynn secretly negotiated US foreign policy appears to me to fall squarely within the scope of what the CI probe was trying to uncover. The discussions with Kislyak seeking non-retaliation on sanctions and seeking to influence their UN vote appear to constitute "coordinating activities with the Russian Federation" in a manner which was potentially a threat to national security and/or illegal. So it is unsurprising that the emergence of the call affected the government's analysis about whether to continue the CI probe into Flynn and interview him about the call.

Nevertheless, McCarthy agrees with Barr that the CI investigation was BS and therefore, the lies would have been "immaterial." It appears to me and to numerous former federal prosecutors that the "materiality" defense is ridiculous, unprecedented, and clearly politically motivated. We're never going to agree on this forum about the soundness of Barr's legal argument regarding materiality. But to proclaim Flynn's innocence by touting Barr and the DOJ's legal argument without acknowledging Barr's fixation on exonerating Trump and friends from the Mueller probe is disingenuous. Whatever the soundness of the legal arguments Barr's making, let's not pretend like we don't know why he's making them.

Moving on. Next, McCarthy sets aside the materiality argument and wonders why the DOJ didn't dismiss the case just because it was a crappy case:

"In all the heated commentary over this decision, scant attention has been paid to the most compelling reason for vacating Flynn’s 2017 guilty plea to one count of making false statements to FBI agents: The government wouldn’t have a prayer of convicting Flynn at trial."

"In Flynn’s case, the government could not conceivably have met its burden of proof. In dismissing the case on a legal rationale, the Justice Department avoided the potential of an ugly trial that would have damaged the FBI and DOJ."

I am a bit surprised McCarthy didn't consider that one of the reasons "scant attention" has been paid to the government not being able to meet its burden of proof against Flynn is because, uh, Flynn admitted to the crime, under oath, in front of a federal judge, at least twice. I don't think the DOJ often dismisses cases against people who have admitted to the crimes they've been accused of. Certainly the points McCarthy raises about the factual weaknesses of the case would have been considerations for Flynn in deciding whether to roll the dice and try his case, but despite those weaknesses, Flynn admitted to the crime.

In light of Flynn's admission of guilt, it's hard to imagine thinking he's not actually guilty unless you think the FBI / DOJ coerced him into pleading guilty by threatening him or his son with crimes they didn't commit -- otherwise, he wouldn't have admitted to doing a crime that the FBI couldn't prove (didn't have "a prayer" of proving, according to McCarthy). And some of Flynn's defenders seem to think that's exactly what happened, citing FBI and DOJ behavior that they say "proves" Flynn's innocence because the FBI and DOJ were "out to get" him.

To those people, I want to know the following: (1) what crimes was Flynn (or Flynn Jr.) threatened with that he didn't commit? (2) notwithstanding whether Flynn lied to the FBI about it, are you OK with Flynn negotiating in secret with Russia (from whom Flynn had made tens of thousands of dollars in the prior year, and had been identified to Flynn as having committed cyber-crimes against the US) about Obama's foreign policy on Trump's behalf while Obama is still in office? (3) are you OK with Flynn making $500,000 as a secret foreign agent for Turkey while advising a president-elect on foreign policy, (4) are you OK with Flynn secretly selling nuclear technology without congressional approval to countries without counterproliferation agreements with the US (Saudi Arabia)?

Finally, I do not want to ignore the other suggestions of there having been prosecutorial misconduct, but it is hard to follow all of the arguments that are set forth in various news articles and twitter threads. So I'm asking again, what is the strongest piece of evidence that was revealed in the last week that exonerates Flynn? Please direct me to the exhibit and/or argument and explain why it exonerates him. If you want to list two, or three, that's fine; I just find it difficult to respond to twitter threads and opinion articles. Whatever the evidence is, does it exonerate him with respect to the other things I listed that have nothing to do with his prosecution?

Beach Friends said:

What? Wouldn't any article that defended (or criticized) Barr's actions necessarily be an opinion piece in fact if not in name?

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I see you have found nothing.

TaylorB said:

In truth, the FBI was trying to determine whether Flynn was "being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly be a violation of [FARA] or other related statutes." Sure, the CI probe encompassed exploring whether Flynn was a "clandestine Russian agent," but it also encompassed whether he was simply coordinating activities with Russia in a way which might be illegal or impact national security. Which he was.

The call with Kislyak wherein Flynn secretly negotiated US foreign policy appears to me to fall squarely within the scope of what the CI probe was trying to uncover. The discussions with Kislyak seeking non-retaliation on sanctions and seeking to influence their UN vote appear to constitute "coordinating activities with the Russian Federation" in a manner which was potentially a threat to national security and/or illegal. So it is unsurprising that the emergence of the call affected the government's analysis about whether to continue the CI probe into Flynn and interview him about the call.

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I must be misunderstanding something. Surely you are not suggesting that an incoming National Security Advisor discussing U.S. policy with a foreign ambassador during a transition is somehow evidence of a "threat to national security" or something else illegal.

JimEverett said:

I must be misunderstanding something. Surely you are not suggesting that an incoming National Security Advisor discussing U.S. policy with a foreign ambassador during a transition is somehow evidence of a "threat to national security" or something else illegal.

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I think you are just trying make my argument look silly by removing all the context and re-framing it. So let me put the context back to clarify what I'm saying.

Flynn's secret phone calls with Russians wherein he negotiated foreign policy as a private citizen that was contrary to the sitting administration's foreign policy were relevant to a counterintelligence investigation into whether Flynn was "being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly be a violation of [FARA] or other related statutes."

The context for Flynn (in addition to the additional context below) was that (1) Russia had recently been determined by the US intel community to have committed cyber-war against our country, and Trump was publicly claiming they hadn't, despite him and Flynn having been briefed that they had; (2) Flynn appeared to be signaling to Russia that the penalties Obama had just imposed for those cyber-crimes would be lifted; (3) Flynn had a personal financial stake in the lifting of sanctions that was unrelated to US foreign policy interests; and (4) Flynn was already at that time in violation of FARA because he was literally an agent for Turkey.

The threshold for a CI investigation is not "proof beyond a reasonable doubt," it is just a preponderance of the evidence. So whether or not Flynn "promised" to Russia that sanctions would be lifted, it's very likely under the circumstances that that's what Kislyak understood Flynn to be signaling to him. That's why Trump followed up with a tweet praising Putin for not retaliating. Secretly communicating to an enemy that has just attacked the country that the incoming administration will not penalize them for that behavior is certainly "coordinating activities with the Russian Federation in a manner which may be a threat to national security." It invites, or fails to deter, future attacks. And if Flynn lied, it puts him in a compromising situation with Russia; for example, when Pence and Sean Spicer go on TV and say Flynn didn't discuss sanctions when he actually did, Russia knows Flynn lied to them about it, and therefore has leverage over him. That is another potential threat to national security. And the negotiations violated the Logan Act, so yes, they were also illegal (and arguably for other reasons, too).

So as it turned out, the Mueller investigation into Russia's interference ultimately uncovered the fact that Trump's national security advisor was secretly negotiating with the Kremlin over foreign policy worth hundreds of billions of dollars to Russia before Trump ever took office, after he and Trump were specifically informed that Russia had attacked us. I think it also proved that Flynn lied about it.

If the government had chosen not to investigate Flynn, we'd likely never have known most of that. It's a pretty big deal when you also consider that around that time frame, Trump was in secret negotiations for a tower in Moscow that would have made him billions of dollars, Manafort was secretly sharing internal polling data for battleground states with Putin-connected oligarchs, Stone was secretly communicating with Russian cut-outs, Papadopoulos was trying to set up secret meetings with Putin, Kushner was trying to set up a secret back channel to the Kremlin, Don Jr. was meeting with Russians, Saudis, and Emiratis secretly offering him dirt, Erik Prince and Kushner friend Rick Gerson were secretly meeting with Russian and Emirati cut-outs, Cohen was secretly negotiating Trump Tower AND a sanctions deal with Russia... I could go on. Anyone who doesn't think this much clandestine activity with a foreign adversary like Russia should have raised the alarm bells in the FBI is also probably someone who doesn't care if Russia interfered as long as it helped Trump.

Apparently, Judge Sullivan has told everyone "not so fast" regarding Flynn's case dismissal. There seems to be others that want to file amicus briefs in opposition to the actions of the DOJ. So more drama erupts in a case where the defendant faced a maximum of six months in jail.

Richard said:

Apparently, Judge Sullivan has told everyone "not so fast" regarding Flynn's case dismissal. There seems to be others that want to file amicus briefs in opposition to the actions of the DOJ. So more drama erupts in a case where the defendant faced a maximum of six months in jail.

U.S. judge puts Justice Department’s move to drop charges against Michael Flynn on hold

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Thanks for posting that. Good read.


Spectacular! Need to keep the DOJ in check here.

The former Watergate prosecutors filed an application with the court to file an amicus brief, which gives a preview of what they plan to argue if the court allows their brief:

Their argument is really strong. There appears to be good legal authority in support of the notion that the court can conduct its own inquiry into whether the motion to dismiss is made in good faith and serves the public interest. That has to give Barr and Timothy Shea some heartburn. But to me, the most compelling line in the brief is from a 2016 DC Circuit case: A guilty plea represents a turning point between “the Executive’s traditional power over charging decisions and the Judiciary’s traditional authority over sentencing decisions.” Which means that once Sullivan accepted Flynn's guilty plea, he was considered "convicted," and the DOJ transferred control of his case to the court.

If Judge Sullivan's gut reaction to Barr's motion was the same as most lawyers who are not Trump defenders, he's likely to be extremely resistant to taking any action which might cede his Article III authority to Barr's DOJ. If there is solid legal support for the notion that it's simply no longer up to Barr, which at first glace there appears to be, that analysis is much cleaner than if the court were to engage a fact-finding inquiry into the department's good (bad) faith, which would be met with obstruction by the DOJ. And which would be difficult to prove whether or not the DOJ was in bad faith.

My money at this point is on Sullivan denying DOJ's motion to dismiss the charges against Flynn. And the basis is the simple notion that it's the court's call, not the DOJs, at this stage. I am interested to see the DOJ's response, particularly regarding whether the executive retains any control after a guilty plea is accepted by the court. My guess is that there are plenty of instances in which courts have gone along with after-the-plea requests by prosecutors, but I doubt there are appeals courts which have held that the executive actually retained that power once the plea had been accepted by the court.

It's possible Barr anticipated this. Even if Sullivan denies the DOJs motion to dismiss the charges, Trump now has the political cover with his base to pardon Flynn. The odds that we see more of these shenanigans to protect Flynn, Manafort and Stone in the coming months are high, particularly if Trump thinks he's going to lose to Biden.

TaylorB said:

I think you are just trying make my argument look silly by removing all the context and re-framing it. So let me put the context back to clarify what I'm saying.

Flynn's secret phone calls with Russians wherein he negotiated foreign policy as a private citizen that was contrary to the sitting administration's foreign policy were relevant to a counterintelligence investigation into whether Flynn was "being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly be a violation of [FARA] or other related statutes."

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What phone calls are you talking about? The phone calls to the Russian Ambassador that Flynn made while incoming National Security Advisor during the transition? If so, its hard not to make your argument look silly if you are characterizing those calls as "secret" and between a "private citizen."

Incoming Administrations don't start from zero. That is what a transition is for. And incoming Administrations have the right and duty to set their foreign policy and that requires some communication - just because the WaPo doesn't get a transcript of the conversations does not make them "secret."

A more fair criticism would be that Flynn was acting "rogue" or something. Hence, his later firing by the Administration. But to adopt that position would seemingly diminish the idea that the Administration and Trump himself were beholden to Russia. But I don;t think you can have it both ways.

TaylorB said:

The context for Flynn (in addition to the additional context below) was that (1) Russia had recently been determined by the US intel community to have committed cyber-war against our country, and Trump was publicly claiming they hadn't, despite him and Flynn having been briefed that they had; (2) Flynn appeared to be signaling to Russia that the penalties Obama had just imposed for those cyber-crimes would be lifted; (3) Flynn had a personal financial stake in the lifting of sanctions that was unrelated to US foreign policy interests; and (4) Flynn was already at that time in violation of FARA because he was literally an agent for Turkey.

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The problem here is that intelligence conclusions can and often are made by political actors. The idea of using intelligence against members of and/or closely connected members of an opposition party campaign and opposition party transition team is beyond concerning.
Even beyond that - I am not sure how "context" somehow diminishes the concern that a Democratic Presidential Administration's FBI was treating a phone call by the named National Security Advisor of a Republican incoming Administration with a foreign ambassador as evidence of a threat to national security.

JimEverett said:

What phone calls are you talking about? The phone calls to the Russian Ambassador that Flynn made while incoming National Security Advisor during the transition? If so, its hard not to make your argument look silly if you are characterizing those calls as "secret" and between a "private citizen."

Incoming Administrations don't start from zero. That is what a transition is for. And incoming Administrations have the right and duty to set their foreign policy and that requires some communication - just because the WaPo doesn't get a transcript of the conversations does not make them "secret."

A more fair criticism would be that Flynn was acting "rogue" or something. Hence, his later firing by the Administration. But to adopt that position would seemingly diminish the idea that the Administration and Trump himself were beholden to Russia. But I don;t think you can have it both ways.



The problem here is that intelligence conclusions can and often are made by political actors. The idea of using intelligence against members of and/or closely connected members of an opposition party campaign and opposition party transition team is beyond concerning.
Even beyond that - I am not sure how "context" somehow diminishes the concern that a Democratic Presidential Administration's FBI was treating a phone call by the named National Security Advisor of a Republican incoming Administration with a foreign ambassador as evidence of a threat to national security.

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Did you just really say the Democrats FBI?

That has to be the biggest joke in the entire world.

Did not James Comey a republican head of the FBI at the time gift wrap a major point drop in the polls at minimum or gift wrap the election at maximum for the republican candidate? Did we forget what happened?

If the Obama administration had any control over the FBI do you think the FBI would re open an investigation into the dems candidate and announce it to the whole forking world weeks before the election?

That argument holds about as much water as a colander!

JimEverett said:

What phone calls are you talking about? The phone calls to the Russian Ambassador that Flynn made while incoming National Security Advisor during the transition? If so, its hard not to make your argument look silly if you are characterizing those calls as "secret" and between a "private citizen."

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The calls were secret. Trump tweeted about how smart Putin was for not retaliating without acknowledging that it was at his own team's request. Flynn did not want it known that he was discussing sanctions with the Russians, which is why he excluded that from his text to McFarland summarizing the call, and why he lied to Pence and Spicer about discussing sanctions. Flynn had many secret discussions with Kislyak from 2015 through the transition.

He was a private citizen in that he was not authorized to negotiate foreign policy of an administration he was not part of. His status as a transition official did not give him the right to undercut Obama's foreign policy. That's what the Logan Act prohibits.

I listed tons of secret meetings between Trump officials and Russians; this was just one of them. I am not persuaded by the suggestion that particular meeting this was on the up-and-up just because it happened to occur during the transition. Plenty of other clandestine meetings with Russians and other foreign nationals happened during the transition.

JimEverett said:

A more fair criticism would be that Flynn was acting "rogue" or something. Hence, his later firing by the Administration. But to adopt that position would seemingly diminish the idea that the Administration and Trump himself were beholden to Russia. But I don;t think you can have it both ways.

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I don't think Flynn was acting rogue. I think this went to the very top. Flynn was fired only after it had become clear that he was a PR nightmare. Trump ignored weeks of warnings from Obama officials about him. And whatever you think of the Kislyak call, remember he was a secret agent for Turkey throughout all this. Trump did not fire Flynn for going rogue; he fired Flynn to protect himself.

JimEverett said:

The problem here is that intelligence conclusions can and often are made by political actors. The idea of using intelligence against members of and/or closely connected members of an opposition party campaign and opposition party transition team is beyond concerning.

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I share your concerns about the power of a sitting administration to use its own intelligence against an opposition party. It has the potential to be a very slippery slope. But they should not have to ignore this many red flags to avoid the appearance of influencing politics. There has to be a threshold.

JimEverett said:

Even beyond that - I am not sure how "context" somehow diminishes the concern that a Democratic Presidential Administration's FBI was treating a phone call by the named National Security Advisor of a Republican incoming Administration with a foreign ambassador as evidence of a threat to national security.

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Because you do not seem open to considering the possibility that there was a legitimate, non-political reason for the FBI wanting to know what Flynn was up to. Believe it or not, I spend a great deal of time considering the alternatives to my point of view on all of this. It is how I have become confident in the things I choose to write about. I am not a fan of how the federal justice system operates, for a number of reasons. But I find it really, really hard to come up with an innocent explanation to the sum of what I detailed in my prior post. And I don't really see any Trump defenders addressing those concerns head on (e.g., Trump Tower Moscow negotiations, sharing polling data with Russians, etc.) without resorting to blaming law enforcement and intelligence. It is the same thing with Flynn.