I want to preface this story with a note before I start: I dislike the use of a loaded and pejorative term like “flipping”. Everything written below — and everything we know at this point — is equally true of a circumstance where the individual involved has been approached to address specific questions and agrees to answer those questions rather than declining to answer those questions. That should not be called “flipping”, which is a word that presupposes the person expressed a different view at some point in the past on the same subjects.
I used the term in a headline earlier, and this note is a reflection on whether that was a fair and appropriate characterization given that we know nothing, at this point, about what has alleged transpired. It might very well be that the person involved, whoever it might be, has done nothing more than signal a willingness to answer questions about the work done by the Special Counsel’s Office during that person’s time there — no conditions attached.
With that said…
When the Memorandum of Interview of FBI Special Agent William Barnett was disclosed in the Flynn case back on September 24, 2020, I wrote four articles about the significance of the disclosures from that interview.
I covered it just after it was first made public, noting as an “overview” that SA Barnett’s view of the Flynn investigation seemed to be that it was a joke, and there wasn’t any substance to the investigation when it was begun based on his vantage point as the “Case Agent.”
My second story on the document was that SA Barnett told US Attorney Jensen — who was tasked by AG Barr to review the Special Counsel’s handling of the prosecution of Gen. Flynn — that he detected a prevalent attitude of wanting to “get Trump” among the SCO prosecutors hired by Special Counsel Robert Mueller.
I came back to the interview of SA Barnett a third time to explain how this dramatic development was possibly the cause of the leak to Maria Bartiromo last weekend that US Attorney Durham was unlikely to return any indictments prior to the election.
My fourth story explained how the information provided by SA Barnett showed that the meaning of the “insurance policy” reference in the infamous text message from Peter Strzok to Lisa Page was a reference to the investigation of Gen. Flynn — something they would have open and keep available to exploit in the event that Trump beat Clinton in the 2016 Presidential election. I said in that story that maybe readers were getting the feeling I thought the interview of SA Barnett was consequential — especially with respect to what he might have said about the work of the SCO.
I noted in that fourth story that nearly all the information attributed to SA Barnett concerned the prosecution of Gen. Flynn — which made sense because the disclosure was filed in advance of the hearing on the DOJ’s motion to dismiss the Flynn case. But it also means that SA Barnett told US Attorney Jensen and his investigators much more about the Manafort investigation — he was also the initial case agent on that case, as well. Very little in the published Memorandum references anything having to do with the Manafort investigation and it is hard to believe that SA Barnett had no views he wished to express about how that matter was handled.
Late in the afternoon yesterday, I post this story about a rumor circulating among the federal criminal defense attorneys in Washington DC that a member of the SCO has begun cooperating with the investigators working with US Attorney Durham and/or US Attorney Jensen.
The obvious parlor game on this issue — assuming the rumor to be based in fact — is “who could it be?” I see strong clues in the Memorandum of SA Barnett’s interview.
First, note that the various prosecutors of the SCO are not treated the same way with regard to “redactions” in the publicly filed Memorandum. Some members of the SCO are identified by name — Andrew Weissmann, Jeanne Rhee, and Andrew Goldstein, about all of whom SA Barnett had less than flattering things to say.
At the same time, Weissmann, Rhee, and Goldstein are three of the most well-known, senior members or former members of the Department of Justice management under the Obama Administration.
But the Memorandum is redacted with regard to two other references to SCO attorneys so their names are not revealed. For one, there seems to be only a single reaction, and the name redacted is so short it can only be SCO member Adam Jed.
Beyond the attorneys, the Memorandum refers to numerous FBI officials by name — again names we are all familiar with as they have been publicly identified and reported on for years now — while other names remain redacted with sterile identifiers such as “SA1” (Special Agent 1), and SCO Atty 1 (Special Counsel Office Attorney 1).
But it is “SCO Atty 1” who seems to be singled out in the Memorandum for “differential” treatment, and by that, I mean treatment at the hands of SA Barnett by his comments that are more favorable to SCO Atty 1.
SCO Atty 1 is almost certainly Brandon Van Grack. SA Barnett told the investigators he was working closely with SCO Atty 1, and had worked with SCO Atty 1 on other matters prior to CH.
We know that SA Barnett had been the Case Agent on the Flynn investigation since it was opened in August 2016 and that Van Grack was assigned to the Flynn investigation, and ended up leading the Flynn prosecution. So it seems clear that SCO Atty 1 is Van Grack.
SA Barnett told the investigators about expressing concerns about SCO Jeannie Rhee to Van Grack, and told Van Grack that he wanted nothing to do with the Flynn investigation.
This is significant if you keep in mind that the FBI had always maintained that CH was an “intelligence” investigation, not a criminal investigation. But with the appointment of a Special Prosecutor, and with the “get Trump” attitude of the team of prosecutors Mueller had appointed to his staff, what SA Barnett was really telling Van Grack is that he wanted nothing to do with a criminal prosecution of Gen. Flynn.
When SA Barnett was telling Peter Strzok that he was not interested in working on the SCO investigation, it was Van Grack along with Strzok who urged him to stay on, and he did so.
Lastly, SA Barnett describes efforts by SCO members to keep him from attending interviews of K.T. McFarland, the Deputy National Security Advisor for Gen. Flynn, and the person Gen. Flynn was in contact with during the time frame he was also having discussions with Russian Amb. Kislyak. SA Barnett believes the effort to keep him out of the interviews was because he was asking questions that led to answers from McFarland which undermined theories being advanced for prosecuting both Flynn and McFarland.
SA Barnett says it was Van Grack who eventually played a role in making sure he was allowed to attend and participate in all interviews of McFarland. SA Barnett is critical of both Weissmann and Goldstein in connection with the efforts taken against McFarland.
Which brings me back to the rumor on Thursday. SA Barnett was a “grizzled” veteran of the FBI, with 19 years of experience in some very significant areas of work. He saw the Flynn case for exactly what it was. I suspect he has had a significant amount of regret while watching what Van Grack has gone through over the last 16 months since Gen. Flynn changed counsel, and Sidney Powell has begun yanking on loose threads.
And it was not insignificant in the hearing Tuesday, that the Senior AUSA in the District of Columbia US Attorney’s Office told Judge Sullivan that DOJ was forced to seek dismissal of the case due to “FBI misconduct.”
Brandon Van Grack was not among the “Mueller All-Stars” with outsized egos and long pedigrees in DOJ. Van Grack was a “specialist”. When he was assigned to the SCO, he was a Trial Attorney in the National Security Division’s Counterintelligence and Export Control Section. That office primarily handles espionage cases that develop out of counterintelligence cases that rely on the Foreign Agent Registration Act. Since Crossfire Hurricane was originally opened as a Counterintelligence investigation under FARA, and was transitioning to a criminal investigation, that was exactly the kind of case that Van Grack handled as part of his normal DOJ position.
My point is that Van Grack was really an “outsider” among a bunch of “Cool Kids” from the upper ranks of the Obama Administration DOJ. When he withdrew from the Flynn case, he went back to his prior position and was appointed Chief of the newly formed FARA Section in the National Security Division. It’s very possible he did not part company with his former SCO colleagues totally on board with everything that was done.