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What the hell is going on with the Flynn transcripts. A thread.
cc @KimIndivisible
There was much huffing and puffing in the media about the transcripts between Flynn and Kislyak in the run up to the election, and how perhaps Barr was refusing a court order, or something. washingtonpost.com/politics/justi…
Most lawyers in twitlandia - including me - felt like we needed more info before weighing in. So I just cracked open PACER to see what was going on.
SURPRISE! First thing I find is the government filed a motion to release Grand Jury info because the Flynn case is now complete. I've been on this topic a while.
We can't really see what the motion says, however, because it was filed under seal. The Order clearly states that three attachments (presumably from the evidence filed under seal) should be released in unredacted form. The Clerk filed 3 attachments on the public docket same day
The judge entered two other orders on May 16. The second answers a big question in my mind - did the Court specifically order the Flynn/Kislyak transcripts released? The answer is a definite yes.
This immediately raises a question in my mind - does the Court have authority to order TS Classified information to the public? Courts are definitely charged with making determinations about secret Grand Jury info, but I am aware of no authority by which they can declassify T/S.
The Court entered a 3rd order May 16 - That the Mueller report must be filed on the public docket with the Flynn info unredacted. Same question as before - does this include Top Secret classified information - if so, I don't think the Court has that authority.
The section of the Mueller report that deals with Flynn and Kislyak, however, shows that NOTHING is redacted in that section and there is no cite to a transcript of the call. The contents of the call were taken from McFarland's interview and Flynn's statement of offense.
The US's Response to the Court Orders (discussed above) provides some insight. First it describes the two of the Court's Orders as "sua sponte" which means that the Court entered them on its own, not in response to any motion filed by any party.
The prosecutors acknowledge that they were ordered to turn over ANY recordings of Flynn, including the ones with Kislyak.
They do not DIRECTLY address their decision not to give the Kislyak tapes. Instead they say that they have given everything that was used in the criminal case and everything that pertains to sentencing.
In many ways, this is a perfectly reasonable response. A judge usually only receives the evidence that pertains to the case at hand, not everything that the government may know about someone.
Pleadings filed under seal, however, are not showing on the docket. It can't be an accident that the Kislyak tapes aren't addressed in the response, so there must a sealed document pertaining to that issue. This is a normal part of criminal cases dealing with classified info.
The answer to the question of whether judges can see classified info without having a clearance - yes, under 28 CFR 17.46.
BOTTOM LINE: Prosecutors don't want Flynn or the public to have access to the transcripts of the Flynn/Kislyak tapes. Why? Impossible so say, probably it would reveal the capabilities of the US government and expose sources and methods. Probably not defying a court order.
PS - I don't have a cite right now, but I am sure a district court judge DOES NOT have the right to declassify government secrets (as opposed to Grand Jury information). They can allow it to be seen by a Defendant, for purposes of justice, but not release it.
I don't want Tribe to be on the dark side, but if you compare this week take to my thread ... it really makes you wonder.
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