My seemingly never-ending series of necessary “corrections of the record” turns its attention today on this Lawfareblog piece authored by former DOJ Prosecutor Barbara McQuade — a “National Security Prosecutor” she wants you to know by mentioning it 8 or 10 times — or maybe every paragraph, I lost track.
I thought I was going to be able to keep this one relatively short compared to my earlier pieces in Lawfareblog, the NYT, and the Atlantic.
But the deceptive and intellectually dishonest pieces coming from folks who shared the same professional position that I occupied, are so outrageously galling that I just can’t contain my criticism to a normal several hundred words. I’m grateful to RedState that there are no word limits imposed on what I write. So, as with my prior efforts, let us break out some of the things Ms. McQuade tries to peddle in her story, and hold them up to the “disinfectant” of sunlight.
The Justice Department’s motion to dismiss the case against former National Security Adviser Michael Flynn is flawed in many ways, but one of its weakest arguments is that the investigation of Flynn was not properly “predicated.”
Predication is a requirement under the Attorney General’s Guidelines…. To begin an investigation, the bureau must have a predicate—essentially, a factual basis to believe that a crime or national security threat exists.
According to the Justice Department inspector general, the Flynn investigation was properly predicated as a full investigation.
Yes, when it was opened on August 16, 2016. That’s not the basis for the motion.
The argument is that as of January 24, 2017, it was NO LONGER properly predicated – according to the FBI. Key to the Justice Department’s argument in its motion to dismiss is the fact that, after four months of investigation without finding any derogatory information, the FBI had completed its assessment of whether Gen. Flynn was a risk to national security, and was closing its case.
A draft internal FBI document dated Jan. 4, 2017, shows that the bureau had sketched out a memo closing the probe, though the document includes the usual caveat that if new information were identified, the FBI would consider reopening the investigation.
McQuade is not honest with the reader here. The Closing EC is just the final paperwork step in the closing process. The DECISION to close the investigation, based on the findings regarding the predication, had been made. The Closing EC is drafted by the Case Agent at the direction of the Supervisor. The Case Agent doesn’t just wake up in the middle of the night, and think to him/herself “I think I’ll write a draft Closing EC for my case today,” and hope his/her supervisor agrees. The Closing EC is drafted AFTER that decision is reached, and simply reflects the decision previously reached.
When you claim the absence of “approval” means the investigation was not over, you elevate “form” over “substance” on the question of “materiality”. Tardiness in completing paperwork doesn’t make an “immaterial” matter suddenly “material.”
But before the case was actually closed, the FBI learned that Flynn had spoken to Russian Ambassador Sergey Kislyak in late December 2016.
As noted in the motion, the “fact” that the incoming National Security Advisor had calls with the Russian Ambassador does not advance or change the findings as set for the in the Closing EC in any way because such calls are ordinary and to be expected in advance of a change in Presidential Administrations.
… Flynn had asked Russia not to retaliate for sanctions imposed by the Obama administration…. Flynn had also asked Russia to vote against a United Nations resolution regarding Israeli settlements. On their face, these calls potentially undermined the foreign policy of the United States.
This paragraph starts with a lie – nowhere in any court record or gov’t document that has been produced is it said that Flynn asked Russia to “not retaliate”. The Factual Basis for the Change of Plea, written by the Special Counsel’s Office, stated that Gen. Flynn asked the Russian Ambassador to not “escalate” the matter, and for any response to be only “proportional” to the announced sanctions. McQuade’s lie is the same lie that has been written in Lawfareblog articles on two prior occasion –first in a piece jointly authored by Ben Wittes, Quinta Jurecic, and Susan Hennessey. This lie was then repeated in a later piece by Robert Litt.
Three times is no longer a coincidence. Lawfareblog is a fundamentally dishonest publication that is continually recycling disinformation.
Next we get to issues where McQaude embarrasses herself, as she can’t be troubled to explain exactly HOW the foreign policy of the US was undermined by Flynn’s request that the Russians not escalate tensions in the aftermath of the Obama Admininstration’s sanctions.
Is she arguing that the foreign policy goals of the Obama Administration were to, in fact, escalate tension between the two nuclear powers?? How far was that policy intended to go – right up through an exchange of ICBMs?? If the policy was to “escalate” tension, and Gen. Flynn’s request “ON ITS FACE” undermined that policy, then what was the ultimate goal of that policy – a smoking crater in the ground where Moscow used to be?
By saying the calls “undermined foreign policy” without explaining how, she also avoids having to put in writing that the foreign policy of the Obama Administration was to sell out longtime ally Israel to curry favor with the mullahs in Iran by – for the very first time – allowing the passage of UN resolution declaring Israeli settlements to be in violation of international law. Say it Barb – that was the “foreign policy” which you think was “undermined” by the call.
More from McQuade:
The Justice Department now insists that the Kislyak call did not establish adequate predication for the FBI to conduct this interview. But there was no need for new predication for the interview—because predication had already been established.
The case was still open after having been properly predicated, as found by the inspector general.
This is stunning ignorance of the law and evidence by a “National Security Prosecutor.” Here would be my questioning of the Crossfire Razor Case Agent on this issue of materiality and predication:
Q: Special Agent Bond – on Aug. 16, 2016, you created an Opening EC setting for the predication for initiating a counterintelligence investigation of Gen. Michael Flynn related to questions which existed on that date concerning connections he had to various Russian companies and government actors, correct?
Q: For a period of nearly 5 months after opening that counterintelligence probe, you engaged in a series of investigative steps to determine whether the issues raised by the language of the predication were true or not true, correct.
[I’d probably go through the steps taken in that regard one by one at this point, but lets leave that out in the interests of brevity – don’t laugh].
Q. As you went through those investigative steps did you keep your Squad Supervisor informed about what you were doing and what information you were developing.
Q. As of middle or late December, 2016, had you completed all the various investigative steps that you and your squad supervisor believed were necessary and appropriate to reach a determination on the issues which were the subject upon which the predication of the investigation had been based?
Q: Did you discuss with your Squad Supervisor your findings?
Q: And did you discuss with your Squad Supervisor what you believed – based on your training and experience – the next steps should be in connection with the counterintelligence investigation based on the findings of your investigative efforts between August 16 and mid-or-late December 2016?
Q: What were the findings of your investigation that you discussed with your Squad Supervisor.
A: The various investigative techniques and efforts I pursued, consistent with the lawful authority which I had pursuant to a properly predicated investigation, revealed no derogatory information regarding Gen. Flynn which supported the allegations of the predication language to be true. I found nothing to suggest he was a Russian agent. I found no information to suggest he was wittingly or unwillingly assisting Russian actors in their efforts to interfere in the 2016 Presidential Election or matters related thereto.
Q. So, is it fair to say that the results of your work as Case Agent found that the basis upon which the counterintellingence investigation against Gen. Flynn had been predicated in Aug. 2016, were not – in reality – true?
Q. And reaching that determination was the purpose for your investigation – correct?
Q. So when you reached that determination, what more was there for you to do as part of Crossfire Razor?
A. Nothing, other than draft the correct document to close the investigation.
Q. Did you discuss that with your Squad Supervisor?
Q. Did he give you any instructions or directions as part of that discussion.
Q: What did he tell you to do?
A: To draft a Closing EC for his approval, closing out the Crossfire Razor counterintelligence investigation of Gen. Flynn.
Q: Once he gave you that instruction, did you plan any further investigative activity regarding the allegations of the predicate language from Aug. 2016?
Q: Why not?
A: Because my investigation showed the predicated language was not true, and further investigative activity would not be supported by any other information known to me in late December, 2016.
Q: What remained to be done?
A: Just the drafting of the Closing EC and my Squad Supervisor’s approval.
Q: Did you have any reason to believe he would not approve closing the counterintelligence investigation?
Q: Why not?
A: Because he’s the person who told me to close it.
Q: After you drafted the EC and uploaded it for his review and approval, what further investigative activity had you planned?
Q: Why not?
A: Because my investigation over nearly five months had resolved the matter.
Q: Is it fair to say Agent Bond that as of January 4, 2017, even though the draft EC had not yet been approved by your Squad Supervisor, your investigation of Gen. Flynn based on the Aug. 16, 2016 predication, was over and no further investigative work was justified by the findings of your investigation.
A: Yes that is a fair statement.
Done — lack of materiality comes straight from the mouth of the Case Agent responsible for establishing whether the Aug. 2016 predication was true or not true. McQuade can jump up and down, and yell and scream about the status of the paperwork, but the facts regarding the investigation is that it was over.
McQuade next turns to the worn out “old saws” regarding violations of the Logan Act and that Gen. Flynn having exposed himself to being blackmailed by the Russians as a result of misleading VP Pence about his calls. McQaude can’t really rally herself to the Logan Act craziness, so she opts for the “blackmail” gambit instead.
By lying to Pence about facts known to Russia, Flynn had compromised himself as national security adviser. Flynn, who had access to the nation’s most sensitive secrets, was now susceptible to blackmail by a hostile foreign adversary.
So once again a Lawfareblog author has trotted out this specious canard.
If both the Russians and the FBI/DOJ/WH knew that Gen. Flynn has misled VP Pence, there was NOTHING to blackmail him with.
If my spouse happened to spot me having dinner with another woman, my sister-in-law can’t “blackmail” me by threatening to tell my spouse that she saw me having dinner with the same woman.
Not a single proponent of this idiotic claim has addressed the logical fallacy that infects it. They keep repeating it as propaganda and disinformation because its part of the playbook.
Gen. Flynn was not susceptible to being blackmailed by a threat of revealing he had misled VP Pence because the highest levels of the US government knew already that he had misled VP Pence.
Even if one were to accept the Justice Department’s absurd arguments that fresh predication was needed and that this new information was insufficient for a full investigation, the Kislyak call certainly would have been enough for a preliminary investigation—which may be predicated on the basis of the lower standard of “information or an allegation indicating the existence” of a threat to the national security.
Yes, but that means doing something in the FBI case file. Agents and supervisors don’t just carry around predication claims in their heads. They have to write it down and have it approved. That’s the entire reason the predication requirement was adopted, and the drafting of an opening EC is required. When nothing is done in the file, there is no basis after-the-fact to evaluate whether the actions taken were appropriate and justified.
The problem is that the FBI did nothing after the calls. It didn’t reopen Crossfire Razor; it didn’t open a new counterintelligence investigation based solely on the calls; and it didn’t open an “Assessment” — the record of the file shows that nothing was done.
It is telling that prosecutor Brandon Van Grack, who worked on the case for more than two years, withdrew on the day the motion was filed and that no career prosecutor signed the filing.
In fact, this tells you nothing.
One way you could look at it is that not asking Van Grack to sign the motion was a professional courtesy to Van Grack. Putting Van Grack in the position to have to go before Judge Sullivan and explain why a case he had doggedly pursued for more than 2 years – and having him sign the motion to dismiss which lays out the facts for what that dogged pursuit had been improper – would expose him to scrutiny by the DOJ Office of Professional Responsibility, and the licensing authorities in whatever state he holds a law license.
Or are McQuade and the others making this moronic point suggesting Van Grack should have been asked to do the following:
Van Grack: “Your Honor, Brandon Van Grack on behalf of the United States. The investigation of Gen. Flynn that I have headed-up for more than two years has been legally defective as FBI records show there was no longer a factual predicate for the FBI’s interview of General Flynn on January 24, 2017. As a result, the answers he provided in that interview were not material to any pending investigation, and do not fall within the prohibitions on false statements covered by 18 U.S.C § 1001. There has been information in the case file suggesting this might be the case, but I never produced it to the defense – in fact I never gave the defense any discovery before threating Gen. Flynn with an indictment on many more serious charges if he did not plead guilty. I gave him 24 hours to decide. When he did plead guilty, I wrote in the factual basis of the plea agreement filed with this Court that his statements to the agents were material, but I did not explain how that was the case, and I did not provide any information to Gen. Flynn or his attorneys why that was the case. FBI records show that it wasn’t the case, but that evidence was never disclosed to the Defendant or his counsel even though it went directly on an element of the offense he pled guilty to, and suggested that there might be no factual foundation to establish that element. Please grant the motion and report me to the appropriate disciplinary authorities.”
Yeah – I’m shocked Brandon Van Grack was not asked to sign the motion.
Who wants to go next?