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  • Misinterpreting a judge’s order, right-wing media have convinced themselves that Michael Flynn is about to reverse his guilty plea

    The latest anti-Mueller bombshell actually amounts to a typo

    Blog ››› ››› MATT GERTZ


    Sarah Wasko / Media Matters

    President Donald Trump’s overzealous defenders at Fox News spent yesterday using a misinterpretation of a standard order from the judge overseeing special counsel Robert Mueller’s prosecution of former national security adviser Michael Flynn to speculate that Flynn’s guilty plea is on the verge of being vacated.

    Flynn pleaded guilty to lying to the FBI in December and agreed to cooperate with the special counsel’s investigation into Russian interference with the 2016 presidential election. But Judge Rudolph Contreras, who accepted Flynn’s plea, subsequently recused himself and was replaced by Judge Emmet G. Sullivan, who issued an order that month directing Mueller to provide Flynn’s lawyers with any evidence they possess that is favorable to the defendant. The disclosure of this information can be required under the Brady rule, named after the 1963 case Brady v. Maryland.

    That’s a huge deal, according to conservative media figures like Fox judicial analyst Andrew Napolitano, who have spent months spuriously attacking Justice Department and FBI officials for their conduct during the Russia investigation. “Why would [Sullivan] want that after Gen. Flynn has already pleaded guilty? That is unheard of,” Napolitano asked on yesterday’s Fox & Friends in a segment featuring the caption, “Will Flynn Reverse His Guilty Plea?” Napolitano then suggested an answer: “He must suspect a defect in the guilty plea. Meaning he must have reason to believe that Gen. Flynn pleaded guilty for some reason other than guilt.”

    Other Fox programs picked up Napolitano’s theory over the course of the day. That afternoon, the Fox panel show Outnumbered portrayed the Sullivan order as an indication of “new questions about the circumstances” of Flynn’s guilty plea, with co-host Katie Pavlich falsely claiming that Sullivan’s order had explicitly told Mueller’s probe that “it’s very clear that you withheld some pretty important information.” And that evening, Fox host Martha MacCallum opened her show over the caption “Flynn Could Flip Guilty Plea,” discussing the order, which she described as “raising eyebrows,” in back-to-back interviews with Jonathan Turley, a law professor at George Washington University, and Napolitano. Turley argued that “it's important not to read too much into this” and suggested it’s unlikely that the order will lead to any changes in Flynn’s plea. Napolitano said Sullivan’s move was very unusual and could indicate improper coercion by the Mueller team but walked back the explicit statement he made on Fox & Friends about Sullivan’s motivation, asking of the judge, “Does he suspect some defect in Michael Flynn's guilty plea? We don't know the answer to that.”

    In this latest salvo in Fox’s monthslong campaign to undermine the Mueller probe by any means necessary, the network is picking up on a theory that ping-ponged through the right-wing media over the last week.

    National Review’s Andrew McCarthy and The Washington Examiner’s Byron York were the first main proponents of the notion that the Sullivan order represents a “curious” or “unusual” turn in the Flynn case. The Federalist’s Margot Cleveland added a new twist over the weekend, arguing that a revised version of the order Sullivan issued Friday suggested that Flynn was about to withdraw his guilty plea. All three pieces have been widely aggregated by other right-wing outlets, far-right trolls, and fake news websites who are all rushing to declare the Flynn guilty plea is in jeopardy.

    Notably, McCarthy and York placed the same sizable caveat in their pieces: In McCarthy’s words, “It could be that this is just Judge Sullivan’s standard order on exculpatory information, filed in every case over which he presides.” But oddly, while such caveats implicitly acknowledge that the story would be much less interesting if Sullivan is among the federal judges who issue standing Brady orders for every one of the criminal cases on their dockets, neither writer seems to have actually bothered to check if that is actually his practice.

    I checked, and it is. As he explained in a 2016 law review article calling for the amendment of the rules of federal criminal procedure to incorporate such disclosures, “I now issue a standing Brady Order in each criminal case on my docket, which I update as the law in the area progresses.” Thus, Sullivan’s action was not “unusual” or “curious,” but simply what he does in every single criminal case he oversees.

    Napolitano and his ilk seem to have picked up the story York and McCarthy put forth, but stripped off their caveat and instead asserted as fact that Sullivan’s action must be because he suspects some sort of malfeasance from Mueller, or even because, as Napolitano suggested, Flynn was not guilty to begin with.

    The Federalist’s Cleveland makes a slightly different argument. On Friday, after the publication of York’s and McCarthy’s pieces, Sullivan issued a second, slightly different order. Cleveland focuses on this second order, which she writes “added one sentence specifying that the government’s obligation to produce evidence material either to the defendant’s guilt or punishment ‘includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.’” According to Cleveland, this is a big deal “because it indicates that, if the government did not provide Flynn material evidence during plea negotiations, Flynn has grounds to withdraw his plea.”

    Cleveland concludes that this second order reveals that “a motion by Michael Flynn to withdraw his guilty plea based on government misconduct is likely in the works,” even though Cleveland acknowledged that even in that scenario, “the Supreme Court has never addressed the question of whether a defendant may withdraw a guilty plea if the prosecution withholds exculpatory evidence during plea negotiations.”

    It’s theoretically possible Sullivan really has come to suspect some sort of improper behavior by the Mueller team. But the docket in the case provides a far simpler, more banal explanation for what is happening.

    As legal blogger and attorney Susan Simpson noted in a tweetstorm about the Sullivan conspiracy theories, Sullivan explained that in December, he had accidentally entered an older version of the Brady order that he issues in every criminal case, rather than the “current version,” and was seeking to remedy that error. It’s not a bombshell, it’s effectively a typo.

    The right-wing claims that Flynn’s guilty plea may soon be vacated come amid a broader, furious effort to vindicate him.

    Flynn’s fierce defenses of Trump, declaration that Hillary Clinton should be locked up, and willingness to interact directly with right-wing conspiracy theorist trolls like Mike Cernovich made him a hero to the dregs of the “alt-right.” And over the last month, those conspiracy theorists have rallied behind him.

    Longtime Trump adviser Roger Stone kicked things off on February 5, claiming on Infowars that Flynn’s lawyers were on the verge of filing a motion to dismiss the charges against him on the grounds that “that Assistant FBI Director Andrew McCabe told a teleconference of law enforcement officials, ‘first we fuck Flynn, then we fuck Trump.’” Stone claimed that pro-Trump outlets The Hill and Circa had confirmed that quote from McCabe, a longtime target of Trump supporters, but I found no evidence to support that. The quote does, however, appear in a March 2017 piece from the website True Pundit, which is notorious for publishing fabrications and fake news stories.

    “Pizzagate” conspiracy theorist Jack Posobiec has also been a leading Flynn champion, highlighting many of the reports about the Sullivan orders to buttress the #ClearFlynnNow campaign Posobiec has been promoting all month. According to Posobiec, the campaign is needed because “Flynn was framed.”

    That online campaign is part of the “increasingly bold calls for presidential pardons” Trump’s supporters are demanding for those implicated by the Mueller probe, especially Flynn, Politico reported February 19.

    Meanwhile, as the pro-Trump media struggle to construct an alternate reality in which the Mueller probe is constantly on the verge of collapse, yesterday also brought the news that lawyer Alex van der Zwaan had pleaded guilty after Mueller charged him with lying to FBI investigators about other aspects of the Russia probe.

    van der Zwaan -- who has worked on behalf of indicted former Trump campaign chair Paul Manafort and whose father-in-law is a Russian oligarch -- joins 18 other people and three companies who have been indicted or have pleaded guilty due to the Mueller investigation.

  • Right-wing media figures have led Trump's purge of Department of Justice officials they perceive as threatening

    Here’s who they have left

    ››› ››› BOBBY LEWIS & GRACE BENNETT

    Right-wing media have consistently lined up behind Donald Trump to defend him against any and all allegations regarding Russian interference in the presidential election. Led primarily by Fox News and primetime host Sean Hannity, right-wing media figures have denounced, undermined, or maligned Department of Justice and FBI officials involved in the broader Russia investigation since it began. 

  • Executive Time: Hail to the live-tweeter in chief

    Blog ››› ››› MATT GERTZ


    Sarah Wasko / Media Matters

    Welcome to Executive Time, a recurring feature in which Media Matters senior fellow Matt Gertz explores the intersection between President Donald Trump’s Twitter feed and the hours of cable news he reportedly consumes daily, with a special focus on his favorite morning program, Fox & Friends. You can follow Matt’s work on Twitter @mattgertz and see previous installments in this series here.

    Days this week Trump appeared to live-tweet cable news: Five (three from Fox & Friends, one from Fox & Friends Saturday, one Fox’s America’s Newsroom.)

    Tweets this week apparently resulting from live-tweeting cable news: 11 (six from Fox & Friends, two from Fox & Friends Saturday, three from Fox’s America’s Newsroom.)


    It’s almost a year into Donald Trump’s presidency, and to celebrate, Axios reporter Jonathan Swan gave us a gift that perfectly sums up this administration: the news that White House staff refer to the lengthy blocks on the president’s private schedule when he is quite literally left to his own devices as “Executive Time.”

    Those blocks “almost always means TV and Twitter time alone in the residence,” per Swan’s sources, and the president has been demanding them more frequently as he heads into his second year in office.

    The president’s twin obsessions of Twitter and television are deeply entwined. In fact, I’ve concluded that the best explanation for the president’s Twitter feed is often that Trump is “live-tweeting Fox, particularly the network’s Trump-loving morning show, Fox & Friends,” as I wrote last week in Politico Magazine. I’ve been chronicling that pattern on Twitter for months, starting my mornings by carefully tracking the president’s truculent tweets back to the Fox programming he is echoing. This presidential live-tweeting has occurred even more frequently in recent days.

    The president’s private schedule for January 2, Swan reports, shows that Trump’s first meeting was at 11 a.m., that he had two and a half hours of “Executive Time” throughout the day, and that his “official day” ended at 4:15 p.m. Here’s what else the president did that day, as cogently described by Toronto Star’s Daniel Dale:

    Trump appears to often use the early-morning “Executive Time” to watch Fox & Friends, where co-hosts Steve Doocy, Ainsley Earhardt, and Brian Kilmeade provide the president with soothing bromides about his successes, helpful explanations for his failures, vicious attacks on his political and media foes, and seething culture war jeremiads that stir up his base. The hosts and guests know that the president may be watching, and openly use the program to try to influence his decisions.

    We saw presidential live-tweeting scramble the policy-making process just this morning. Fox & Friends was covering a House vote scheduled for today to renew a portion of the Foreign Intelligence Surveillance Act -- a move supported by the White House. During the segment, Fox senior judicial analyst Andrew Napolitano commented, “I don’t understand why Donald Trump is in favor of this. His woes began with unlawful foreign surveillance and unconstitutional domestic surveillance of him before he was the president of the United States.” He then turned to the camera and said, “Mr. President, this is not the way to go.” Doocy added, "Our lead story today was about how apparently that dirty dossier filled with stuff that was just made up apparently was used in part to get a FISA warrant to spy on President Trump."

    Roughly 45 minutes later, the president, who had been live-tweeting the program all morning, tweeted that FISA was “the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?” With a few words on the president’s favorite show, a Fox analyst created chaos, with a House Republican source telling NBC that the tweet “is an issue” and the president being forced to send another tweet trying to walk back his first one. Meanwhile, Swan reported, "Top Hill sources are trying to figure out who 'got to' Trump to influence him to write the first tweet."

    The problems of this Fox-Trump feedback loop are legion. The president's views are molded by right-wing misinformation, as he relies on a pack of bigoted morons to explain the world rather than the vast expertise of the federal government. His live-tweets upend the news cycle, thrusting the network’s obsessions into the mainstream and turning conservative pseudoscandals into national news. As journalists shuffle their priorities to respond to the president’s tweets from in front of his television, important news stories are crowded out. And of course, it’s deeply unnerving that the leader of the most powerful nation on earth is spending hours each day watching television.

    None of this is likely to change in the near future --  since Politico published my piece early Friday morning, Trump has sent 11 tweets on five different days that I was able to link to Fox’s programming.

    And so, I’ll be covering this intersection of the president’s tweets and the cable news he watches, with a special focus on his favorite program Fox & Friends, for a regular feature we’re calling “Executive Time.”

    The president is live-tweeting

    Here are the Trump tweets from the last week I am reasonably confident are the result of the president directly responding to cable news programs he had been watching.

    January 5. One Fox & Friends live-tweet.

    January 6. Two Fox & Friends Saturday live-tweets.

    January 8. One Fox & Friends live-tweet.

    January 10. Three America's Newsroom live-tweets.

    January 11. Four Fox & Friends live-tweets.

    Fire and fury

    While the president takes his cues from Fox & Friends, he regularly lashes out at outlets producing journalism critical of his presidency.

    Propaganda watch

    Other highlights from Fox & Friends, the president’s favorite morning cable news program.

    President’s Daily Brief

    The people Trump turns to for news are not the best and the brightest.

  • Fox’s Napolitano baselessly claims GSA acted unlawfully by not informing Trump transition team of Mueller's request for emails

    GSA told Trump officials that it would comply with requests for information from law enforcement

    Blog ››› ››› JULIE ALDERMAN

    Fox News senior judicial analyst Andrew Napolitano baselessly claimed that the Government Services Administration (GSA) “had a legal obligation to tell” President Donald Trump’s transition team that the agency had handed over emails to the team investigating Russian interference in the 2016 election at the request of special counsel Robert Mueller. Not only is there no indication GSA has a  legal requirement of the sort, but officials at the GSA said they warned Trump officials that anything they created could be turned over to law enforcement.

    When discussing on Fox & Friends a (false) claim from Trump’s lawyers that Mueller’s team improperly obtained emails from the presidential transition team by going to the GSA rather than the transition team itself, Napolitano claimed, “The GSA had a legal obligation to tell” Trump’s transition team that it had handed over the emails to the special counsel. Co-host Brian Kilmeade agreed, saying, “I would think so. It seems logical.”

    But the GSA did notify the Trump transition team that it would be handing over documents and other materials to law enforcement if asked. BuzzFeed reported that GSA Deputy Counsel Lenny Loewentritt said, “Transition team members were informed that materials ‘would not be held back in any law enforcement’ actions.” Additionally, a memorandum of understanding between the GSA and the transition ream obtained by Crooked Media’s Brian Beutler shows “no provision denoting the documents as being the property of the transition team” and suggests transition members agreed to rules that “include a privacy waiver, which notes that, ‘Users have no expectation of privacy on GSA IT resources since all activities are subject to monitoring.’”

    From the December 19 edition of Fox News’ Fox & Friends:

    ANDREW NAPOLITANO (FOX NEWS SENIOR JUDICIAL ANALYST): But [special counsel] Bob Mueller and his team did obtain the emails of the transition team. So we’re talking about the three-month period from Election Day until Inauguration Day. How did he get them? Well, he can't issue a subpoena, only a grand jury can. And the grand jury will only issue a subpoena if somebody gives them a reason. So some FBI agent testified under oath before the grand jury as to what they thought was in the emails, why they needed them. The grand jury issues the subpoena. Now the problem arises. So when the subpoena is served on the GSA, Government Services Administration, which is part of the executive branch, which had the records of the transaction.

    STEVE DOOCY (CO-HOST): The custodian.

    NAPOLITANO: Correct. Donald Trump’s now president when this is happening. The GSA should have said to the transition team, “Hey, the -- it still exists, we have a subpoena from the special prosecutor’s grand jury. We’re going to comply with it in 10 days. If you want to challenge it, here’s a copy. Go to court and challenge it.” They didn't do that. When no challenge came, they complied with it. And so Mueller's people had tens of thousands of emails.

    You may say so what? Well, I’ll tell you the significance: Mueller's team interviewed, the FBI agents interviewed, most people in the West Wing who also worked for the transition team. Those people at the time of the interviews undoubtedly did not know that the --

    DOOCY: Didn’t know they had the emails.

    NAPOLITANO: Correct. The FBI agents who were interviewing them had already read their emails. Remember, it's a crime to lie to the FBI. It is not a crime for the FBI to trick you into lying. Just ask [former national security adviser] Mike Flynn.

    DOOCY: A perjury trap.

    [...]

    BRIAN KILMEADE (CO-HOST): Just so you know, they feel as though they were told by a GSA official who now have died that if we need any of this information on the computer equipment that we gave you for the transition, we’ll tell you [INAUDIBLE] to subpoena it. That guy’s dead. So, let's just move on real quick.

    NAPOLITANO: The GSA had a legal obligation to tell [the] transition [team].

    KILMEADE: I would think so. It seems logical.

  • DOJ revealed that Trump lied about Obama wiretapping him. Fox News covered it for 30 seconds.

    Blog ››› ››› MATT GERTZ


    Sarah Wasko / Media Matters

    More than any other news outlet in the country, Fox News had a responsibility to cover the Justice Department’s declaration that there is no evidence to justify President Donald Trump’s March lie that President Barack Obama had illegally wiretapped his communications during the 2016 presidential election. But after the network’s hosts and contributors spent weeks trying to defend the president’s baseless charge -- to the point that their reporting triggered an international incident -- the network has given only 30 seconds of airtime to DOJ’s revelation last Friday that the claim was bunk.

    On the morning of Saturday, March 4, Trump tweeted that Obama “had my ‘wires tapped’ in Trump Tower” shortly before the 2016 election, which the president deemed “McCarthyism” and “A NEW LOW!” Trump provided no evidence for his charge, which seems to have been based on a right-wing radio rumor that had been highlighted by Breitbart.com. Over the next few weeks, the president’s claim was denied by Obama’s spokesperson, his director of national intelligence, the directors of the National Security Agency and FBI, and the bipartisan leaders of the House and Senate intelligence committees. And then this past Friday, Trump’s Justice Department stated in a court filing that there was no evidence to support his claim.

    The Justice Department’s disclosure should be a big deal. “Make no mistake, this information is embarrassing. It's embarrassing because the president said something that wasn't true at all and the federal government knew it wasn't true back in March when [then-FBI director James] Comey testified, and your taxpayer dollars keep being used to investigate this fiction,” CNN’s Jake Tapper explained on Tuesday. “The Trump administration has made any number of attempts to try to force the claim into somewhere near the possibility of a neighborhood of maybe true. ... But the bottom line is and always has been there is no evidence that Donald Trump was wiretapped by Barack Obama. It was and continues to be a lie, and no holiday weekend Friday night document dump is going to cover that up.”

    Many mainstream news outlets covered the DOJ’s declaration, though it did not receive the level of full-spectrum attention one might expect from a federal agency effectively acknowledging that the president made up an attack on his predecessor. As Tapper suggests, the disclosure on a Friday evening before a holiday weekend likely played a role in the coverage; other breaking stories, such as continuing coverage of Hurricane Harvey, also probably had an impact.

    But while both CNN and MSNBC found time to cover the wiretapping story over the weekend and into this week, Fox has been entirely uninterested in examining the president’s embarrassment.* The network’s coverage of the Justice Department’s disclosure came in a single 30-second Saturday night news brief:

    Trump’s charge was always an easily identifiable lie. But the pro-Trump pundits at Fox -- who are always eager to push an attack on Obama, no matter how far-fetched -- rallied around the president in the days after he issued the claim, desperately searching for ways to justify his claim.

    Sean Hannity led the charge, tweeting, “What did OBAMA know and when did he know it??” in response to Trump’s initial tweet, and devoting time in every broadcast the following week to defending Trump’s lie. Fox & Friends, the president’s favorite morning news show, also played a key role, seeking to support Trump by mainstreaming conspiracy theories from the dregs of the internet.

    The network’s effort to bend over backward to defend the president’s lie culminated when senior judicial analyst Andrew Napolitano reported that Obama had enlisted a British intelligence service to spy on Trump. Napolitano’s claim, which appeared to have originated with the state-sponsored Russian news network RT, was subsequently cited by then-White House press secretary Sean Spicer to defend Trump; was publicly denied by the British intelligence service; led to a “diplomatic row” between the two countries; was cited by Trump himself as evidence he had been right; and was repudiated by Fox, with anchor Shep Smith saying the network could not confirm Napolitano’s reporting. The senior judicial analyst received a brief suspension -- when he returned to the Fox airwaves roughly two weeks later, Napolitano said he still stood by his claims.

    After doing its best to back up Trump’s baseless claim that Obama wiretapped him, Fox had a responsibility to tell its viewers the truth. Instead, the network is mostly hiding the federal government’s own repudiation of the charge.

    * Coverage was assessed by searching all three networks’ transcripts via the Nexis and SnapStream databases.

  • "Personal Gestapo," "witness intimidation," and "a witch hunt": How pro-Trump media reacted to the Manafort raid

    ››› ››› KATHERINE HESS

    After President Donald Trump's former campaign chairman Paul Manafort was issued a search warrant regarding the Russia investigation, pro-Trump media -- including Fox personalities, fringe blogs, neo-Nazi sites, and fake news purveyors -- lashed out, stating that it was “not about Trump,” and insisted that this was a witch hunt and another attempt to undermine the 2016 presidential election. Others claimed the FBI was acting as “someone’s personal Gestapo,” and that the raid was a form of “witness intimidation.”

  • Right-wing media figures and online bots are going after “weak, spineless” Mitch McConnell

    ››› ››› DINA RADTKE & NICK FERNANDEZ

    Right-wing media condemnation reached a fever pitch on August 9 after Senate Majority Leader Mitch McConnell (R-KY) commented that President Donald Trump had “excessive expectations” for health care reform, which many Trump loyalists in the conservative mediasphere interpreted as an attack on the president. In response, Trump sycophants along with online bots and trolls used their platforms to besmirch McConnell’s character, call for him to retire, and popularize the hashtag #DitchMitch on Twitter.