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Here is the official copy of the Motion to Dismiss"
The Obama Administration politicized the DOJ and it's time for the rule of law to be restored for all Americans.
It appears the DIMMs have reduced themselves to bumper sticker slogans out of desperation and bitterness...
Why Didn’t the FBI Record the Flynn Interview?
There are so many angles to the FBI-Michael Flynn imbroglio, and most have been covered in great depth across a divergent set of viewpoints. But one aspect that has not been covered, and that opens up a wider lens into FBI policy, is the fact that the FBI refuses to audiotape, much less videotape, interviews of witnesses or suspects such as Flynn.
That policy is counterproductive and makes no sense in 2020. The FBI needs to take itself out of the J. Edgar Hoover era and align itself with modern law enforcement best practices.
Whether Flynn lied in his interview has become a bone of contention between supporters and critics. It doesn’t matter to the motion to dismiss the charges against Flynn that was filed by the Justice Department because even if he did lie, the department says it cannot “explain, much less prove to a jury beyond a reasonable doubt, how false statements are material to an investigation” that the government had no basis to conduct because it had no evidence Flynn had broken the law.
In other words, the FBI had no valid reason to interview Flynn about his conversation, as the incoming national security adviser for President Donald Trump, with former Russian ambassador to the U.S. Sergey Kislyak.
Therefore, nothing Flynn said in the interview was “material,” a necessary element of being charged with lying to a government agent. In fact, as the Justice Department says, the interview “seems to have been undertaken only to elicit [Flynn’s] false statement and thereby criminalize Mr. Flynn.”
But did Flynn actually lie to the FBI agents who interviewed him about his conversation with the Russian ambassador?
That would be easy to figure out if we had two things: the actual recording of the conversation with the ambassador and a recording of the FBI interview.
But we have neither.
The U.S. government routinely surveils foreign ambassadors like Kislyak, and it has a recording of Kislyak’s conversation with Flynn. But that recording has not been publicly released.
But even if it were released, we still would not be able to determine whether Michael Flynn lied to the FBI when he was interviewed because the FBI refuses to record its interviews. Instead, after they interview a suspect, FBI agents write out a summary of the conversation in what are known as “302s,” so named after the number on the government form they use.
So the government’s only record of its interview with Flynn is the 302, in which FBI agents summarize what was supposedly said, as well as their subjective impressions and memory.
The 302 on the Flynn interview has not been exposed, but it has been widely reported that the interviewing agents told their supervisors they didn’t think Flynn lied to them. In fact, the Flynn 302 wasn’t completed until three weeks after the interview and went through “major revisions and edits.”
As such, it is hearsay with edits from people who weren’t even at the interview.
A video or audiotape would have provided much better evidence than a mere FBI 302. It would have provided the best evidence of the words spoken by each party and the tone and approach taken by the agents.
That raises the question: Why doesn’t the FBI videotape, or at least audiotape, its interviews with witnesses and suspects? Smartphones are ubiquitous, and law enforcement agencies elsewhere seem to videotape everything.
Meanwhile, as the nation’s chief federal law enforcement agency, the FBI employs professionals in cyber, national security, computers, and linguistics, as well as analysts and all sorts of scientists, counterterrorism experts, and more. Many are the best in their fields, yet they are not widely known.
Special agents are the outward face of the bureau, the police force of the FBI. They work in the field; investigate and build cases; work with local, state, and other federal counterparts to fulfill their mission; and are responsible for interviewing witnesses and suspects.
The FBI does record forensic interviews of child victims and witnesses, but not adult witnesses or suspects. The FBI has explored recording interviews of adults, and it’s aware that other law enforcement agencies have done so for some time.
In 2014, then-Attorney General Eric Holder announced a new policy that interviews of federally detained persons would be electronically recorded. But the announcement only “created a presumption” of a new shift and applied only to “individuals in federal custody following arrest but prior to their first appearance in court.”
The policy was supposed to “ensure accountability and promote public confidence” in the FBI, but it didn’t accomplish that and is not in practice today.
The FBI resists videotaped and audiotaped recordings for several reasons, all of which lack merit.
Officials claim that if they were required to tape interviews of suspects, it would prevent them from building rapport with the suspect. But state and local police officers who are required to tape interviews manage to build rapport with their suspects.
They suggest that if the FBI taped interviews, criminals would learn about their interrogation techniques, which would help criminals being interrogated. But the techniques they lawfully use, including lying to suspects, are well-known.
Furthermore, when confronted with facts (or what the suspect is told are the facts), many suspects waive their Miranda rights and voluntarily speak to the police.
Even if someone were to analyze years of FBI interrogation videotapes, it’s not as though they would then create an online course called “How to Beat the FBI’s Interrogation Techniques.”
The benefits of videotaping suspect interviews far outweigh the minor costs of doing so. Those benefits not only flow to the government, but also to the defendant, his or her counsel, and the judge and jury who preside over the case if it goes to trial.
Videotaping suspect interviews shows everyone what happened from the moment the video is turned on. You can hear what was said, see the body language of the police officer and the suspect, and pick up cues from their tone, volume, and inflection. You don’t have to rely on the police report that summarizes a custodial interrogation—which is exactly what an FBI 302 form does.
Taping eliminates, beyond any doubt, whether the suspect invoked his right to remain silent or his right to an attorney at any point during the taped custodial interrogation.
Defendants sometimes claim they invoked those rights during the interrogation, but the police ignored their requests. Their defense attorneys typically file a motion to suppress the statement, which then requires the government to file a reply brief, and the judge to hold a pretrial hearing to rule on the motion.
A video or audiotape would short-circuit this process and prevent wasting the court’s time.
Furthermore, a videotaped interrogation gives the prosecutor an insight into the quality of the interrogation, the strength or weakness of the questioning, and the credibility of the defendant and his or her statement. That helps the government decide which cases have merit.
In jurisdictions that require videotaped custodial interrogations, the government is required to disclose the videotape to the defense attorney during the normal course of discovery. But even if it weren’t required, it still holds a number of benefits for all involved.
Defense attorneys can watch and listen to their clients while in police custody, which gives them an accurate portrayal of what happened during the interrogation.
They can see whether the police explained their client’s constitutional rights and whether their clients acknowledged as much by initialing a piece of paper and waived them. That cuts down on needless pretrial litigation.
In rare instances where a law enforcement officer ignores a suspect’s request to remain silent or for an attorney during a videotaped interrogation, it’s beneficial to have proof of that, too.
A prosecutor needs to know about violations of the accused’s constitutional rights. It may—and likely would—affect whether charges will be filed.
The prosecutor would, no doubt, inform the officer’s superior for disciplinary action, helping to deter future such actions. And if there is a prosecution, the government would not be able to use the accused’s statement in the government’s case in chief.
Judges and juries benefit from seeing videotaped interrogations and have come to expect it. If the accused says something on the videotape that implicates him in the crime, the government may well want to play the videotape for the jury. That’s far more compelling, and believable, than a police officer or FBI agent testifying about what the accused allegedly said to him.
In instances where an accused confesses to a crime on videotape, after knowingly and voluntarily waiving his or her rights on tape, the likelihood of a guilty plea goes up.
If the same confession happened without a videotape or audiotape, then it is less likely the accused will plead guilty, because the only proof of the confession is the police officer’s notes and memory.
Finally, recording interrogations helps build public confidence in law enforcement. We need professional, well-trained law enforcement officers to protect and defend us from criminals. Most do their jobs with extraordinary bravery and dedication to duty.
If the FBI changed its policy, and videotaped all custodial interrogations, the public would have more confidence in and respect for its work.
There is simply no legitimate reason today for the FBI to refuse to record witness interviews and interrogations in non-terrorism cases.
If it had done so in the Flynn case, at least one of the issues raised in the case would not be a matter of dispute today; namely, what FBI agents asked Flynn, and what he actually said, on Jan. 24, 2017.
Sally Yates Testifies that Joe Biden Was at Oval Office Meeting on Michael Flynn
BY: JOEL B. POLLAK
Former Acting Attorney General Sally Q. Yates testified on Wednesday at the Senate Judiciary Committee that former Vice President Joe Biden was at a January 5, 2017 meeting in the Oval Office where Michael Flynn was discussed.
Yates testified that she had not known about Flynn’s conversations with then-Russian Ambassador Sergey Yislyak until that meeting, and that the purpose had not been to discuss whether to investigate Flynn, or merely whether to withhold information from him for counterintelligence reasons. Flynn was the incoming National Security Advisor at the time.
Notes taken at the time by then-FBI agent Peter Strzok, and released in June, indicated that Biden suggested Flynn could be investigated for violating the Logan Act, which prevents private citizens from conducting U.S. foreign policy.
Yates said she did not remember all of the details of the January 5 meeting, which was first described by then-National Security Advisor Susan Rice in an email memorandum that she sent to herself as the Obama administration ended.
She confirmed that Biden was there, but could not confirm whether he had brought up the Logan Act. “I don’t remember the Vice President saying much of anything,” she said. She said no formal decision had been made about investigating Flynn for violating the rarely-enforced Logan Act, though she said that she had been skeptical about the idea at the time.
Other important points in Yates’s testimony included:
– Yates testified that she would not sign the warrant application to the FISA court on Carter Page, knowing what she knows today. She acknowledged that the warrant, and the application for its renewal (both of which she had signed), had misled the Foreign Intelligence Surveillance Act (FISA) court, given that the FBI relied on the “Steele dossier.” However, she said she had trusted the FBI’s analysis — even though she knew something of the dossier’s political origins.
– Yates misstated several facts about the Michael Flynn case and Special Counsel Robert Mueller’s investigation. Yates claimed falsely that Flynn had lied to FBI agents — a conclusion very much in doubt, given new evidence. She also claimed falsely that he pleaded guilty twice to lying to the FBI; in fact, he only pleaded guilty once. And she claimed, falsely, that Flynn tried to “neuter” Obama administration sanctions on Russia; in fact, he asked Russia not to escalate. In addition, she testified George Papadopoulos had been a Russian intelligence asset — a false claim she had to walk back.
– Yates could not explain why she believed there was a “legitimate” reason for investigating Flynn even after FBI agents recommended dropping the case on January 4, 2017. Yates testified that she believed the FBI agents who made that recommendation had not yet seen the transcripts of Flynn’s conversations with Kislyak, but there is no evidence to substantiate that claim. (The reason the agents actually gave at the time: FBI leadership wanted the case to continue.)
– Yates admitted that former FBI Director James Comey went “rogue” by sending FBI agents to interview Flynn at the White House without warning White House counsel. She testified that she had been upset at the breach of FBI protocol, and that the Obama administration would not have been treated that way. She seemed not to remember that former Deputy Director of the FBI Andrew McCabe discouraged Flynn from having an attorney present at the meeting.
– Yates seemed to admit that Flynn was investigated because of policy concerns about the incoming administration. Yates could not provide any evidence of a crime Flynn had committed prior to meeting with the FBI agents in the White House, but said that the investigation was necessary because of concerns that the new administration would reverse the Obama administration’s (belated) policy of confronting Russia — a concern she admitted had to do with foreign policy.
– “The Obama administration was not surveilling the Donald Trump campaign.” Yates pushed back against the idea that surveilling Page (a former campaign adviser) and Papadopoulos (a junior campaign adviser) amounted to surveilling the campaign itself, even though a FISA warrant would have allowed the FBI to look at Page’s previous communications.
Flynn pleaded guilty to lying to the FBI, but the Department of Justice has since sought to drop the prosecution, after new evidence emerged to suggest Flynn had been framed — in part to undermine President Donald Trump’s administration.
Biden has said he was at the meeting, and was aware that “they” wanted to investigate Flynn, but that he knew little more.
The key question remains who pushed for the Flynn investigation, and why, despite no evidence of any wrongdoing.
Yates: Comey went 'rogue' with Flynn interview Yates defended the investigation, but took issue with how Comey handled it
By Ronn Blitzer
Former Deputy Attorney General Sally Yates told the Senate Judiciary Committee on Wednesday that when the FBI interviewed then-incoming national security adviser Michael Flynn in January 2017, it was done without her authorization, and that she was upset when she found out about it.
Committee chairman Sen. Lindsey Graham, R-S.C., asked Yates about the circumstances surrounding the interview, particularly the actions of then-FBI Director James Comey.
"I was upset that Director Comey didn't coordinate that with us and acted unilaterally," Yates said.
"Did Comey go rogue?" Graham asked.
"You could use that term, yes," Yates agreed.
Yates said she also took issue with Comey for not telling her that Flynn's communications with then-Russian Ambassador Sergey Kislyak were being investigated and that she first learned about this from President Barack Obama during an Oval Office meeting. Yates said she was "irritated" with Comey for not telling her about this earlier.
That meeting, which took place on Jan. 5, 2017, was of great interest to Graham, who wanted to know why Obama knew about Flynn's conversations before she did. Graham and other Republicans have speculated that Obama wanted Flynn investigated for nefarious purposes. Yates claimed that this was not the case, and explained why Obama was aware of the calls at the time.
Yates said that after Obama placed sanctions on Russia, the Kremlin vowed to take retaliatory action, only to suddenly change course. She said Obama wanted to find out why, which led to the Justice Department discovering Flynn's talks with Kislyak.
Those discussions included a conversation about sanctions that Obama had placed on Russia, with Flynn encouraging Russia not to retaliate too harshly because the incoming Trump administration would be different from Obama's.
"The purpose of this meeting was for the president to find out whether – based on the calls between Ambassador Kislyak and Gen. Flynn – the transition team needed to be careful about what it was sharing with Gen. Flynn," Yates said, noting that the meeting was not about influencing an investigation, which "would have set off alarms for me."
Handwritten notes from then-FBI agent Peter Strzok indicated that Joe Biden, who was vice president at the time, may have mentioned the Logan Act at the Jan. 5 meeting. The Logan Act is a 1799 law that prohibits unauthorized American citizens from communicating with foreign governments or officials "in relation to any disputes or controversies with the United States, or to defeat the measures of the United States." It has never been used to successfully prosecute anyone.
When asked if Biden mentioned the Logan Act, Yates said she could not recall. She did say that Comey spoke about the Logan Act, but that she did not remember if he said this during the Oval Office meeting or in a conversation afterward.
Speaking further on the Flynn investigation, Yates said she supported the probe. She also supported Flynn's prosecution for providing false statements to the FBI, stating that Flynn's lies were "absolutely material" to the investigation. She said that the Justice Department's decision to dismiss Flynn's case was "highly irregular," and that in her nearly 30 years as a federal prosecutor she had "never seen" anything like it.
The bottom line is what the investigation showed is true, and she supported it. The rest of the story is silly is just that so why would you post something about a probe that produced good results, and had Flynn plead guilty? Only in far right never never land would this happen. Experts proved correct again.
And the point is: No one cares, well except the FAR right who have been on quite the Distraction train.
That's true. It's also true that they're not going to be talking about the rest of her interview where she ruined their conspiracies about the Russia investigation and that it was necessary and justified.
And the point is: No one cares, well except the FAR right who have been on quite the Distraction train.
Don't they want everyone to know that a mere 31% of the country trusts donald to resolve the Covid19 pandemic. I suspect that "it is what it is" is not selling well in any Red State that is seeing case loads increase and more people dying.