Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

According to Mike Flynn’s Fox News lawyer, Sidney Powell, to “defend” himself in a guilty plea he has already sworn to twice under oath, he needs to obtain unredacted versions of a Comey memo showing he was not targeted with a FISA warrant and a FISA order showing that people who were targeted with FISA warrants might have been improperly scrutinized while they were overseas.

That’s just part of the batshittery included in a request for Brady material submitted to Emmet Sullivan last Friday.

The motion is 19 pages, most of which speaks in gross generalities about Brady obligations or repeats Ted Stevens Ted Stevens Ted Stevens over and over again, apparently a bid to convince Judge Emmet Sullivan that this case has been subject to the same kind of abuse that the late Senator’s was.

After several readings, I’ve discovered that Powell does make an argument in the motion: that if the government had provided Flynn with every damning detail it has on Peter Strzok, Flynn might not have pled guilty to lying to Strzok about his conversations with Russian Ambassador Sergey Kislyak or admitted that he used a kickback system to hide that he was a paid agent of Turkey while getting Top Secret briefings with candidate Trump.

They affirmatively suppressed evidence (hiding Brady material) that destroyed the credibility of their primary witness, impugned their entire case against Mr. Flynn, while at the same time putting excruciating pressure on him to enter his guilty plea and manipulating or controlling the press to their advantage to extort that plea. They continued to hide that exculpatory information for months—in direct contravention of this Court’s Order—and they continue to suppress exculpatory information to this day.

One of the things Powell argues Flynn should have received is unredacted copies of every text Strzok sent Lisa Page.

The government’s most stunning suppression of evidence is perhaps the text messages of Peter Srzok and Lisa Page. In July of 2017, (now over two years ago), the Inspector General of the Department of Justice advised Special Counsel of the extreme bias in the now infamous text messages of these two FBI employees. Mr. Van Grack did not produce a single text messages to the defense until March 13, 2018, when he gave them a link to then-publicly available messages. 14

Mr. Van Grack and Ms. Ahmad, among other things, did not disclose that FBI Agent Strzok had been fired from the Special Counsel team as its lead agent almost six months earlier because of his relationship with Deputy Director McCabe’s Counsel—who had also been on the Special Counsel team—and because of their text messages and conduct. One would think that more than a significant subset of those messages had to have been shared by the Inspector General of the Department of Justice with Special Counsel to warrant such a high-level and immediate personnel change. Indeed, Ms. Page left the Department of Justice because of her conduct, and Agent Strzok was terminated from the FBI because of it.

14 There have been additional belated productions. Each time more text messages are found, produced, or unredacted, there is more evidence of the corruption of those two agents. John Bowden, FBI Agent in Texts: ‘We’ll Stop’ Trump From Becoming President, THE HILL (June 14, 2018), https://thehill.com/policy/national-security/392284-fbi-agent-in-texts-well-stop-trumpfrom-becoming-president; see also U.S. Dept. of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018) (https://www.justice.gov/file/1071991/download). But the situation is even worse. After being notified by the Inspector General of the Department of Justice of the extraordinary text communications between Strzok and Page (more than 50,000 texts) and of their personal relationship, which further compromised them, Special Counsel and DOJ destroyed their cell phones. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation: Recovery of Text Messages From Certain FBI Mobile Devices, Redacted Ed. Washington, D.C. (2018), https://www.justice.gov/file/1071991/download. This is why our Motion also requests a preservation order like the one this Court entered in the Stevens case.

As is true of most of this filing, Powell gets some facts wrong here. The public record says that as soon as Mueller got the warning from Michael Horowitz about the texts, he started moving Strzok off the team. He didn’t need to see the texts, that they were there was issue enough. And Lisa Page remained at FBI until May 2018, even after the texts were released to the public.

And while, if Sullivan had taken Flynn’s initial guilty plea rather than Rudy Contreras, one might argue that Van Grack should have alerted Flynn’s lawyer Rob Kelner of the existence of the Strzok-Page texts, DOJ was not required to turn them over before Flynn’s guilty plea. Moreover, the problem with claiming that withholding the Strzok-Page texts prevented Flynn from taking them into account, is that they were made public the say day Emmet Sullivan issued his Brady order and Flynn effectively pled guilty again a year after they were released, in sworn statements where he also reiterated his satisfaction with his attorney, Kelner. Any texts suggesting bias had long been released; what remains redacted surely pertains either to their genuine privacy or to other counterintelligence investigations.

Finally, at least as far as public evidence goes, Strzok was, if anything, favorable to Flynn for the period he was part of the investigation. He found Flynn credible in the interview, and four months later didn’t think anything would come of the Mueller investigation. So the available evidence, at least, shows that Flynn was treated well by Strzok.

The filing also complains about information just turned over on August 16.

For example, just two weeks ago, Mr. Van Grack, Ms. Curtis, and Ms. Ballantine produced 330 pages of documents with an abject denial the production included any Brady material.6 Yet that production reveals significant Brady evidence that we include and discuss in our accompanying Motion (filed under seal because the prosecutors produced it under the Protective Order).

6 “[T]he government makes this production to you as a courtesy and not because production of this information is required by either Brady v. Maryland, 373 U.S. 83 (1963), or the Court’s Standing Order dated February 16, 2018.” Letter from Mr. Brandon Van Grack to Sidney K. Powell, Aug. 16, 2019.

Given the timing, it may well consist of the unclassified materials showing that Turkey (and possibly Russia) believed Flynn to be an easy mark and expected to be able to manipulate Trump through him. I await either the unsealing of Powell’s sealed filing or the government response to see if her complaints are any more worthy than this filing.

That’s unlikely. Because the rest of her memo makes a slew of claims that suggest she’s either so badly stuck inside the Fox bubble she doesn’t understand what the documents in question actually say, or doesn’t care. In her demand for other documents that won’t help Flynn she,

  • Misstates the seniority of Bruce Ohr
  • Falsely claims Bruce Ohr continued to serve as a back channel for Steele intelligence when in fact he was providing evidence to Bill Priestap about its shortcomings (whom the filing also impugns)
  • Suggests the Ohr memos pertain to Flynn; none of the ones released so far have the slightest bit to do with Flynn
  • Falsely suggests that Andrew Weissmann was in charge of the Flynn prosecution
  • Claims that Weissman and Zainab Ahmad had multiple meetings with Ohr when the only known meeting with him took place in fall 2016, before Flynn committed the crimes he pled guilty to; the meeting likely pertained to Paul Manafort, not Flynn
  • Includes a complaint from a Flynn associate that pertains to alleged DOD misconduct (under Trump) to suggest DOJ prosecutors are corrupt

In short, Powell takes all the random conspiracy theories about the investigation and throws them in a legal filing without even fact-checking them against the official documents, or even, at times, the frothy right propaganda outlets that first made the allegations.

Things get far weirder when it comes to her demands relating to FISA information. In a bid to claim this is all very pressing, Powell demands she get an unredacted version of the Comey IG Report.

Since our initial request to the Department by confidential letter dated June 6, 2019, we have identified additional documents that we specify in our Motion. Now, with the impending and just-released reports of the Inspector General, there may be more. The Report of the Inspector General regarding James Comey’s memos and leaks is replete with references to Mr. Flynn, and some information is redacted. There may also be a separate classified section relevant to Mr. Flynn. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02 (Aug. 29, 2019), https://oig.justice.gov/reports/2019/o1902.pdf

The only redacted bits in the report are in Comey’s memos themselves — the stuff that the frothy right is currently claiming was so classified that Comey should have been prosecuted for leaving them in a SCIF at work. Along with unclassified sections quoting Trump saying he has “serious reservations about Mike Flynn’s judgment” (the redacted bit explains that the President was pissed that Flynn didn’t tell him about Putin’s congratulatory call right away) and “he had other concerns about Flynn,” there’s this section that redacts the answer to Reince Priebus’ question about whether the FBI has a FISA order on Flynn (PDF 74).

The answer, though, is almost certainly no. Even if the FBI obtained one later, there was no way that Comey would have told Priebus that Flynn was targeted; the FBI became more concerned about Flynn after this February 8 conversation, in part because of his continued lies about his work with Turkey.

Flynn’s team also demands an unredacted copy of this 2017 FISA 702 Rosemary Collyer opinion, though Powell’s understanding of it seems to based off Sara Carter’s egregiously erroneous reporting on it (here’s my analysis of the opinion).

Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only did the last administration—especially from late 2015 to 2016—dramatically increase its use and abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained information among federal agencies.10 Judge Collyer determined that former FBI Director Comey gave illegal unsupervised access to raw NSA data to multiple private contractors. The court also noted that “the improper access granted the [redacted] contractors was apparently in place [redacted] and seems to have been the result of deliberate decision making” including by lawyers.11, 12

10 See also Charlie Savage, NSA Gets More Latitude to Share Intercepted Communications, THE N.Y. TIMES (Jan. 12, 2017) (reporting that Attorney General Loretta Lynch signed new rules for the NSA that permitted the agency to share raw intelligence with sixteen other agencies, thereby increasing the likelihood that personal information would be improperly disclosed), https://www.nytimes.com/2017/01/12/us/politics/nsa-gets-more-latitude-to-share-interceptedcommunications.html; See also Exec. Order No. 12,333, 3 C.F.R. 200 (1982), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003).

11 FISC Mem. and Order, p. 19, 87 (Apr. 26, 2017) www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (noting that 85% of the queries targeting American citizens were unauthorized and illegal).

12 This classified and heavily redacted opinion is one of the documents for which defense counsel requests a security clearance and access.

As a threshold matter, Powell gets virtually everything about the Collyer memo wrong. Collyer didn’t track any increase in “about” searches (it was one of the problems with her memo, that she didn’t demand new numbers on what NSA was doing). It tracked a greater number of certain kinds of violations than previously known. The violation resulting in the 85% number she cited was on US persons targeted between November 2015 and May 2016, but the violation problem existed going back to 2012, when Flynn was still part of the Deep State. What Collyer called a Fourth Amendment violation involved problems with 704/705b targeting under FISA, which are individualized warrants usually tied to individualized warrants under Title I (that is, the kind of order we know targeted Carter Page), and probably a limited set of terrorism targets. Given that the Comey memo almost certainly hides evidence that Flynn was not targeted under FISA as of February 8, 2017, it means Flynn would have had to be a suspected terrorist to otherwise be affected. Moreover, the NSA claimed to have already fixed the behavioral problem by October 4, 2016, even before Carter Page was targeted. I had raised concerns that the problems might have led to problems with Page’s targeting, but since I’ve raised those concerns with Republicans and we haven’t heard about them, I’m now fairly convinced that didn’t happen.

At least some of the FBI violation — letting contractors access raw FISA information — was discontinued in April 2016, before the opening of the investigation into Trump’s flunkies, and probably all was discontinued by October 4, 2016, when it was reported. One specific violation that Powell references, however, pertains to 702 data, which could not have targeted Flynn.

Crazier still, some of the problems described in the opinion (such as that NSA at first only mitigated the problem on the tool most frequently used to conduct back door searches) cover things that happened on days in late January 2017 when a guy named Mike Flynn was National Security Advisor (see PDF 21).

Powell should take up her complaints with the guy running National Security at the time.

Craziest still, Powell describes data collected under EO 12333 as “illegally obtained information” (Powell correctly notes that the Obama Administration permitted sharing from NSA to other agencies, but that EO would not affect the sharing of FISA information at all). If EO 12333 data, which lifetime intelligence officer Mike Flynn used through his entire career, is illegally obtained, then it means lifetime intelligence officer Mike Flynn broke the law through his entire government career.

Sidney Powell is effectively accusing her client (incorrectly) of violating the law in a motion that attempts to argue he shouldn’t be punished for the laws he has already admitted breaking.

In short, most of the stuff we can check in this motion doesn’t help Flynn, at all.

And at least before Powell submitted this, Emmet Sullivan seemed unimpressed with her claims of abuse.

The government and Flynn also submitted a status report earlier on Friday. In the status report, the government was pretty circumspect. Flynn’s cooperation is done (which is what they said almost a year ago), they’d like to schedule sentencing for October or November, and they’ve complied with everything covered by Brady. Anything classified, like Powell is demanding, would be governed by CIPA and only then discoverable if it is helpful to the defense.

Powell made more demands in the status report, renewing her demand for a security clearance and insisting there are other versions of the Flynn 302.

To sort this out, the government suggested a hearing in early September, but Powell said such a hearing shouldn’t take place for another month (during which time some of the IG reports she’s sure will be helpful will come out).

The parties are unable to reach a joint response on the above topics. Accordingly, our respective responses are set forth separately below. Considering these disagreements, the government respectfully requests that the Court schedule a status conference. Defense counsel suggests that a status conference before 30 days would be too soon, but leaves the scheduling of such, if any, to the discretion of the Court. The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

Judge Sullivan apparently sided with the government (and scheduled the hearing for a date when Flynn’s attorneys claim to be unable to attend).

Every time Flynn has tried to get cute thus far, it has blown up in his face. And while Sullivan likely doesn’t know this, the timing of this status hearing could be particularly beneficial for the government, as they’ll know whether Judge Anthony Trenga will have thrown out Bijan Kian’s conviction because of the way it was charged before the hearing, something that would make it far more likely for the government to say Flynn’s flip-flop on flipping doesn’t amount to full cooperation.

And this filing isn’t even all that cute, as far as transparent bullshit goes.

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81 replies
  1. Desider says:

    Or is Flynn still fishing for a pardon, and this filing is supposed to contain enough batshittery for Fox to claim biased/rigged no matter what the judge says? They’ll just quote the filing, as if that were conclusive rather than insane. And then all the other conservative wingnuts will close ranks behind it. Just might work…

  2. Areader2019 says:

    Well…if you are a lawyer, and you do nothing,say nothing, and file no motions and your client gets a deal and walks… that’s good right?

    So Flynn’s new lawyers have yaked..yaked..yaked…and now it looks like the judge is enraged, and Flynn will serve time.

    So, should the lawyers refund what ever they charged Flynn?

  3. Troutwaxer says:

    The whole thing smacks of some kind of deal made very late in the process, or perhaps a response to Barr’s hiring, or maybe someone going off their medications (remember why Obama told Trump not to hire Flynn?) I get the feeling that we’re missing some important fact or idea…

    • I Never Lie and am Always Right says:

      I concur that there is a high probability that there is a piece of the puzzle that we don’t completely understand. That piece may be visible (i.e., Barr has replaced Big Dick Toilet Salesman) or not.

      What I don’t comprehend, however, is the poor quality of the legal work by Flynn’s legal team. If you are going to go out of your way to piss off a judge in the hope of getting a pardon for your client, at least do first rate legal work along the way. This work is crap.

      I can recall many years ago purposely trying to piss off three Ninth Circuit Judges during an oral argument in a case in which my best chance of winning involved goading the three Judge panel into making a mistake. They didn’t bite, and they flushed me and my client down the toilet. But I did manage to get a backhanded compliment from the one Judge who was perceptive enough to understand what I was doing.

    • Americana says:

      What you’re missing or unaware of is the long, slow boiling of conspiracy theories on the right wing sites such as Frontpage Magazine and Breitbart about the FISA process and how once the FISA process is proven corrupt, everyone involved in the FISA process like James Comey will be sent to prison. If what individuals like Sidney Powell and Lou Dobbs suspect is true — that the FISA warrants rest solely on the Steele Trump Dossier — they believe they’ll find grounds to attack the FISA warrants. The righteous individuals, the poor innocent babes in the wood like Flynn and Trump and Manafort, will not face justice because of technicalities over their rights supposedly being violated. That’s what Sidney Powell believes and until she finds herself knocked out of the ring by the judge, that’s what she’s going to continue to represent as her case for Flynn. You ought to go listen to her interviews on YouTube on this matter if you’re really unaware of her beliefs. There are at least two or three very long interviews and they’re w/different interviewers from different RW groups so you’ll have a broader understanding of how she’s attempting to attack the prosecution’s case against Flynn.

  4. MattyG says:

    Will the public learn at Flynn’s sentencing about what so enraged the judge last December? Or is that all top secret intel stuff? To the extent justice is weighted on classified material his chance of a pardon may actually improve – because DTs ass will be less exposed – if that’s even possible.

    • Peterr says:

      What enraged Sullivan last December is that a senior member of the US military, serving as the National Security Advisor to the President of the United States of America, admitted to being on the payroll of a foreign country, hiding that fact, and that he also lied about contacts with and actions on behalf of another foreign country. Sullivan summarized this by seriously asking the government if they had considered charging Flynn with treason.

      Will we learn all the super-secret details that support these general charges? No, but there’s enough out there — and enough that Flynn has admitted to under oath — to accept them as the truth.

      • MattyG says:

        I thought that was the public part we knew – and that it was redacted items even more hideous that lit Sullivan’s fuse.

  5. P J Evans says:

    I get the impression that Sullivan isn’t going to be happy with either Flynn or Powell. Maybe especially unhappy with Powell, as she’s apparently more interested in making political points for someone other than Flynn.

    • Americana says:

      I agree, Powell is trying to make a case so that Individual #1 has a chance to escape justice on the same pathetic basis. This is the ultimate game plan — to find the FISA process was corrupt — and thus all the material amassed against Individual #1 will somehow be inadmissible. Trump’s holding out hope that Powell is going to snag a victory here for Flynn and thus for others who are even worse off in terms of their legal exposure. Trouble is, Trump sent Flynn to talk to the Russians about sanctions relief as well as sundry other activities w/the Russians. That can’t all just be expunged from the memory banks by Flynn’s judge and it certainly can’t be ignored during an impeachment. Worse yet, we still have individuals outstanding who’ve yet to come clean and if more evidence is found on those individuals, Individual #1 doesn’t have anywhere to hide.

  6. Eureka says:

    I’m bemused that you had to escalate the items to “craziest still.”

    And recalling the prior heavy-on-Powell-content post and linked docs: ~~ “Brandon: [very heated]” hovered over my shoulder as I read.

    And in appreciation that they *have* to brew their drink from the Fox bubble:

    I had raised concerns that the problems might have led to problems with Page’s targeting, but since I’ve raised those concerns with Republicans and we haven’t heard about them, I’m now fairly convinced that didn’t happen.

  7. OldTulsaDude says:

    So it seems after the first time around with Flynn shaken to his bootstraps when his expectations of no jail time disappeared that he changed course and decided his best chance to avoid jail lay in a presidential pardon.

    Enter Powell.

    Now we have the crazed right creating an alternate reality from which to spoon feed their disciples so a pardon will appear justified.

    I’m surprised Sidney Powell hasn’t found a way to bring the Seth Rich murder into the process.

  8. orionATL says:

    when might judge Sullivan invoke some federal rule of procedure that says a motion or set of related motions should be concise and relevant and not a short story waiting to be published?

    oh well, never mind. the core of this mystery is quite simple – Flynn lied, Flynn pled guilty, Flynn faced very light punishment, Flynn wants to wiggle out of his plea.

    as emptywheel relates, though, Flynn can’t just shut up and get it over with. and therein lies the mystery.

    it is not as if he would ever have trouble getting a job because he was a felon as would tens of thousands of less privileged others.

  9. Vicks says:

    I don’t get it.
    It’s one thing to have a bat shit crazy conspiracy theory to feed to Trump’s base as an alternative theory to distract from the facts, but a lawyer putting her clients future on the line by spelling it out and signing her name to this crap?
    To a judge?
    To use lies and misinformation to defend a client, who, along with a buttload of evidence against him has already plead guilty?
    How much of it even relates to her client or would be meaningful to his case if true?
    It makes no sense to me
    Is there ANY chance that there is a “trusted” person or people at the top that is making this shit up and passing it down as fact?
    If not, what’s the angle?
    To be so adamant about things she knows can’t back up will get her WHAT besides a pissed off judge?

  10. Drew says:

    This seems almost calculated to get Sullivan to sentence Flynn to as much hard time as is available. I can see the Fox News political angle reasons for doing this, but would this in any way help Flynn stay out of prison? I guess the sentence would be appealed, but even the pardon play & all that might very well not work out until after Flynn has served much more time than Papadapoulos did.

    • bmaz says:

      I dunno, seems kind of risky to me. Because Sullivan took the unusual step of swearing Flynn in under oath prior to questioning him, it and extremely detailed fashion, about his guilt and basis thereof, to which Flynn admitted, now saying he is not guilty at all places him at risk for a perjury charge.

      • Troutwaxer says:

        I keep going back to Obama advising Trump not to hire Flynn. Do you think they might be planning to reveal whatever psychiatric issues Flynn might allegedly be afflicted with and claim he’s too crazy to serve time? If they can establish this, does it mean that his testimony in any other issue goes out the window? That’s the only strategy that I can glean from all this that might make sense.

        Otherwise we’re faced with a right-wing lawyer who truly believes some kind of wingnut bizarro-land narrative and is representing their client on that basis.

        • bmaz says:

          As to making a psych argument, no not whatsoever. And even if they tried, that argument was long ago waived. His testimony potential is already shot to hell.

      • Drew says:

        i’m with you there. The thing I don’t know, since I’m not a lawyer, is what happens if Sullivan sentences Flynn near the statutory maximum (or some severe sentence that you might envision) rather than probation or two weeks or whatever?

        The crazy right of course hails him as a martyr, I guess, but I don’t care about that. Does the defense have a right to appeal the severity of the sentence, and if so, how much does that gum things up in terms of implementing the sentence? Can Sullivan send him to jail immediately (or forthwith, anyway) while the appeal is pending, or does the appeal process have to play out first?

      • Frank Probst says:

        I keep wondering about this. It seemed like an unusual move for a judge to swear in a defendant at a hearing. (Unusual in the sense that it never happens on Law & Order or other legal shows.) But ABJ did this with Roger Stone, too, albeit in a hearing about his gag order, as opposed to ensuring that he understood what he was pleading guilty to.

        {Insert recurring comment about how Stone lied under oath.}

        And the judge in the Bijan Kian trial punted on whether or not he should throw the whole case out, because a “not guilty” verdict would have made such a ruling unnecessary. But the jury found him guilty on both counts, and while the judge clearly thought that the evidence against Bijan Kian was thin, it only took the jury a few hours (rather than days or weeks) to render a verdict. I know that the amount of time that the jury deliberates isn’t supposed to be a factor in any sort of legal ruling, but it’s got to have an unconscious impact on the judge when he decides whether or not the verdicts should be thrown out. I think everyone involved in the case (the judge, the prosecutors, and the defense team) were thinking that Flynn’s testimony made the verdicts a slam dunk, but without Flynn’s testimony, the evidence was pretty thin. The jury, on the other hand, was looking at the whole thing with fresh eyes, and they obviously thought the evidence was more than sufficient without Flynn’s testimony.

        As to why Flynn is doing this, I think that he (and anyone else with ongoing legal proceedings, like Roger Stone) is trying to drag this out as long as humanly possible so that they can get through to the next election. If Trump loses, he can pardon everyone before he leaves office. If he wins, there’s no longer any political damage that he’ll suffer by pardoning everyone. If it were me, though, I wouldn’t be counting on a pardon. The Mueller investigation is over. There was “NO OBSTRUCTION, NO COLLUSION”. There’s little (if any) reason for Trump to bother with pardons at this point, because this story is over in Trump’s eyes. Anything new is old news, fake news, and has nothing to do with him. What bother doing something new when you’ve already swept all of this under the rug?

  11. orionATL says:

    “…Crazier still, some of the problems described in the opinion (such as that NSA at first only mitigated the problem on the tool most frequently used to conduct back door searches) cover things that happened on days in late January 2017 when a guy named Mike Flynn was National Security Advisor (see PDF 21)…. [see abve for quote]

    Powell should take up her complaints with the guy running National Security at the time…”

    simple sloppiness or ignorance of details, would explain this inclusion in Powell’s plea to Sullivan, but…

    but, so would trying to snow a judge (or his less experienced clerks) with a blizzard of irrelevant and confusing material.

  12. Rugger9 says:

    Well, I see Sullivan throwing as much of a book at Flynn as he can, and probably some sanctions for Powell as well for deliberately misleading the court (side Q, how often does that happen?). Sullivan is kind of mercurial, but verifiable information like this frequently gets verified.

    So, what is the play here? I’m guessing a pardon from Kaiser Quisling microseconds after Judge Sullivan bangs the gavel.

    That may leave it up to the Army to do something about this, starting at the least with Article 134 which refers to bringing discredit upon the service. but there are a few areas in the UCMJ that can be used (disobeying of lawful orders, etc.). If it were up to me, Flynn would be “dismissed” which works like a DD for an enlisted person. KQ may not be able to intervene in time if they slow-walk it like I know the military can.

    • bmaz says:

      Heh, I don’t think any of that is happening. The max sentence is five years. Guidelines are (at least currently while he is still credited for “cooperation”), 0-6 months. I would not expect, as things stand now, any more than six months, and probably less than that. Powell may get a sharp dressing down, but no sanctions.

      The Army will not do anything. Double jeopardy applies as to the scope of the plea. The United States DOJ and the United States UCMJ are the same sovereign. The UCMJ will never lift a finger at this point.

      • Peterr says:

        Agreed, mostly.

        The one place where the federal courts and the DOD are separate on this is when it comes to Flynn’s rank and pension. As I understand it, DOD can open proceedings that could demote Flynn and cut down or strip him of his pension, without such proceedings being caught in a double jeopardy argument. Sullivan cannot strip Flynn of his rank nor his pension, but the DOD is well within their rights to do such if they see fit.

        Not that they will so long as Trump is in the White House, mind you. But I believe they could if they wanted to.

        • bmaz says:

          That depends on what their basis for such acton would be. I am not sure it is viable at this point. And, as you note, it will never happen. If it does, Flynn should scream like holy hell.

        • P J Evans says:

          That’s also my understanding. Something about “bringing dishonor upon the service”. I doubt that it will happen, not with Tr*mp’s minions running (or ruining) everything, but they should have done it years ago, when he got fired by Obama.

          • bmaz says:

            What does the asterisk add there? PJ, I love you as much as the most cherished commenters in history at this blog. But this adds not one thing ever. It is just stupid and make the entire comment section look stupid. Stop.

              • bmaz says:

                Then we are going to have a problem. That is not something I wish in any regard. This is the dumbest hill to die on I have ever seen. Putting an asterisk in just because it feels good is nuts. What in the living fuck do you think this nonsense accomplishes, except to make us all here look stupid?

                I honestly do not understand this. Your little pet peeve is more important than making us not look like dopes? We do not ask for a lot here. But this is going to be one place where we do, or at least me. We have loved, welcomed, and cherished your presence and contributions forever.

                So, you are saying that inserting an asinine asterisk into Trump’s name is more important than all that, and you are so hell bent on doing that as to ignore our pleas to the contrary?

                Okay. If that is more important to you than having our comment section not look like a den of petty internet stupid bullshit, then you carry on with that. I guess this petty shit is more important than having your, and our, comments be seen as meaningful and significant.

                • P J Evans says:

                  I respect the office. I don’t respect him. (I use worse for him elseweb. So do many others. You’re choosing the hill you want to die on; if that drives away a lot of good people – and you do get very loud in your views of what people may say here – then so be it.)

                  • bmaz says:

                    There are not many rules here, especially for longtime people. This is one. I have repeatedly explained why. And you, apparently, do not seem to give a shit about the bigger picture we work on If you think your pet peeve BS is more important than the work here looking sane and having meaning for a bigger audience. Then so be it.

                    If this minimal request to not engage in jackassery drives away “a lot of good people” such as you claim, so be it. That, in and of itself, is some Trumpian baloney as a statement.

                    Yes, sure, people do not come sit in our comment section because we request they not use asinine bastardizations of the name of the President of the United States.

                    This is some of the dumbest shit I have ever seen on the internet. As to hills, I will be right here on this one, where I have been forever.

                  • Troutwaxer says:

                    The problem (possibly amid others) is that if you don’t write “Trump” rather than “Tr*mp” your comment is not searchable.

                • orionATL says:

                  bmaz –

                  “…Then we are going to have a problem. That is not something I wish in any regard. This is the dumbest hill to die on I have ever seen. Putting an asterisk in just because it feels good is nuts. What in the living fuck do you think this nonsense accomplishes, except to make us all here look stupid?…”

                  oh common on, bmaz! I thought you had gotten over your bullying days.

                  your threats to p.j. are disgraceful given his thoughtful support for this blog, disgraceful in the name of this blog, and disgraceful for you personally.

                  how many more thoughtful, interesting commenters are you going to be allowed to drive away from here? too many already have left due to your bullying?

                  i expect you to behave as a lawyer who respects other’s rights to speak their opinions within SOCIALLY acceptable limits, not your personal limits. p.j.’s use of his name for Trump is socially acceptable here.

                  this sudden concern of yours about our pet names for Trump clearly suggests that you are sensitive to criticisms by media critics or trump supporters. what a sellout. this blog has no reason whatsoever to grovel to either.

                  if you really care about the emptywheel weblog, then stop your bullyragging nonsense and simply contribute intellectually, as with the blagojevitch post.

                  • bmaz says:

                    How about you mind your own business, and not tell us how to run this blog. We do not ask for a lot. But take your scolding and shove it. You have no idea in the world what we deal with. You never have, even though you have repeatedly inserted yourself into our operations.

                    And, by the way, I did not “deep six” anything. Do not pull that shit with me. Others put you in a different status. I have been the one that has freed up almost all of your comments recently. Do not get pissy with me over things you have no clue about.

                  • Eureka says:

                    Respectfully, orion, it seems like you are unnecessarily escalating things by calling bmaz a bully. I do not read his comments to PJ as bullying, but as a disagreement– an ongoing one– and in fact it looked like he went out of his way to soften his words of disagreement by emphasizing PJ’s longtime prized presence here. (As an aside, I see your other comment has a typo in your name so maybe that is why it vanished or didn’t initially appear or whatever. Though I empathize with taking it personally if/ when a comment suddenly disappears.)

                    Obvi not my job to decide what passes muster here, so as a separate matter will just say that nick- or pet names can be annoying or confusing (some are rather cryptic) to those who do not share them. Others here regularly use nicknames or code names (as opposed to the episodic pejorative outburst, like ~”Orange______”), including some that can be hard to figure out absent consistency of reading said commenters repeatedly in context.

                    It can be like another, sometimes highly personal, language to learn. So at least I know what PJ means.

                    And the boss decreed ‘BDTS,’ which shall live forever (but lol when I introduced a topic to spouse using that moniker awhile back, he was puzzled until I explained…).

                    Adding: I jotted this before additional comments came in and the whole thread is escalating…a lot can happen when you go walk the dog.

                    • orionATL says:

                      thanks for the advice from the land of flexibility, eureka.

                      I know some folks who would disagree with your difficulty in making a moral judgement.

                      what they would say is:

                      “whose side are you on,

                      whose side are you on…”

                      yes, I know, it is a complex world and blah, blah, blah..

                    • bmaz says:

                      Listen Orion, thanks for the hill. If a free blog cannot make simple, and reasonable, requests of its commenters, as to their insight of the hopeful import and larger audience here, then I am loathe to get your and PJ’s petty position.

                      We do not ask for a lot, but when we ask to not make us look like idiots, when we tell you that is exactly what you are doing, then sure there will be an issue.

                      Adding, I had no issue with “BDTS” originally, but I do going forward without a (Matthew Whitaker) attached thereto.

                    • Eureka says:

                      I quite clearly gave my opinions and my place, orion. I further added a note that the thread had escalated in tone all-around, seen when the page refreshed.

                      Your mocking of your caricature me is duly noted. I neither spoke to you in that spirit nor will return it now.

                      Adding: nope, turns out I will in fact add an eyeroll as to your assessment of my moral judgement capabilities.

                • oriknATL says:

                  you deep sixed my comment, bmaz. bad move!

                  what needs to happen with your bullying here is that Twitter needs to see it in action. to see it in your own words without editorializing.

                  then people will get to know the real, abusive bmaz, not the lovable curmudgeon. just the real-life growling cur!!!

                  • bmaz says:

                    This is a lie by a person that thinks he runs this blog. Instead, it is a person that has no clue whatsoever what we deal with, and how we do it.

                    But, as always, the feels of a couple of commenters are FAR more important than the work done here.

                    This type of shitbaggery is exactly why most blogs no longer have comment sections. We have a comment section. It is a good one.

                    We do not ask, nor demand, money and subscription to host the same. We have very few asks at all. If you think you are too good to comply with even those, including not making us look like idiots with asterisks and dumbass names for the President, then I just don’t know. I have a hard time seeing why this is too much to ask.

                    • P J Evans says:

                      Bullying is always the wrong move, even when you’re a part-owner.
                      It makes you (and by extension ew) look bad, because you’re trying to force everyone else to write to suit you.

                      Maybe you need some time away, to get your bp down and your head clear.

                    • bmaz says:

                      PJ, I do not need jack shit, I am fine.

                      “Bullying”? Heh, you mean the repeated requests that have been made of you and others to not make us look like idiots with commentary? Those requests have been politely made for a very long time. You seem to think “your” own petty rhetorical mindset is more important than the interests of this blog. Probably you think your asterisk is more important than the blog.

                      Take your own blood pressure medications. What I do not need is people telling us what to do, and insisting that their own petty and idiotic refusal to actually spell the President’s name, is more important than what we do here. Take that shit and shove it.

                      I have put my life into this blog for well over 12 years. You are a beloved and critical commenter. Don’t pull this crap.

                    • orionATL says:

                      I have repeatedly copied my comments here, bmaz – in context of yours and others.

                      you need to display all I wrote.

                    • bmaz says:

                      Dear Orion: Again, I am the one that approves your comments. Stop being a jackass. And, no, you have no idea in the world what we deal with. If you and PJ cannot deal with even the most minimal requests from us, then I don’t know.

                      But for your oh so easy carping at me, well over a decade (maybe over 12 yrs now) when I personally sought to insure you stayed a voice here….Fuck you.

                    • Eureka says:

                      PJ– I just wanted to add what I hope is obvious, in that I always appreciate your presence and commentary here, since I didn’t address that or you in my comments above.

                      Peace to all.

          • Rugger9 says:

            That is Article 134 of the UCMJ, the so-called “general article” that is there to address poor conduct not otherwise specified within the UCMJ.

  13. Paul Whitson says:

    Am I correct in understanding Flynn’s plea deal waived any culpability for conspiring to kidnap Islamic cleric from US soil & transport him to Turkey for several million dollars?
    Why was this grievous charge waived?

    • bmaz says:

      No, that is not necessarily correct at all. Flynn’s plea agreement and statement of offense do not encompass the kidnapping plot specifically, but do cooperation with Turkey. There is little, probably no, chance that is going to come back. It was not “waived” per se, it was not charged, and that is how cooperation agreements work.

        • bmaz says:

          No, not necessarily. Once you reach critical stages in a criminal case, substitution of counsel can only occur with the consent of the court. There is not a chance in hell that Sullivan would allow another one.

  14. Peterr says:

    The motion is 19 pages, most of which speaks in gross generalities about Brady obligations or repeats Ted Stevens Ted Stevens Ted Stevens over and over again, apparently a bid to convince Judge Emmet Sullivan that this case has been subject to the same kind of abuse that the late Senator’s was.

    I’m not sure that the lawyer for a US general/National Security Advisor who has admitted to lying to investigators about being on the payroll of a foreign country really does her client any favors by shouting “Ted Stevens!” in front of Sullivan. Seems to me from his comments last December that Sullivan sees Flynn taking the role of the lying government officials in the Stevens case, rather than the the role of Stevens.

    • earlofhuntingdon says:

      I would guess Sullivan has had Flynn’s number for some time. Putting him under oath for some of the questioning was a good indicator of that.

      I suspect Sullivan is fully aware that Flynn had all the advantages, rose almost to the top of the US military, and had tremendous responsibility for national security in several jobs.

      He abused the trust placed in him. He has fallen as far as he rose owing to his hubris, greed, and ambition. Any remorse he has shown appears to be manipulative and insincere. There won’t be much need to temper justice with mercy in the case of former US Army Lt. General Michael T. Flynn.

  15. P J Evans says:

    bmaz:
    YOU’RE BULLYING US. If you want to deal only with trolls for the foreseeable future, fine. But you’ll have to explain to ew, to Rayne, and to Ed why you thought it was so important to drive the non-tolls away for stuff that only annoys you.

    • earlofhuntingdon says:

      Asking, “Why Not RICO?” would be more productive. You’re not going to drive a wedge in there. Better to regroup and pick another battle.

    • bmaz says:

      I made a simple request to not make our comment threads look stupid. We do not ask a whole lot here. We don’t have advertising, and provide this forum free of charge to the public. And that is no small task, there is a LOT of time, real money and effort involved.

      I am not sure how this is “bullying” or unreasonable. In the least. This is not some old UseNet forum, we try to make a difference here. You are an integral part of that, and your efforts in that regard get noticed (and long have been noticed and appreciated) not just by us, but a bigger audience as well.

      If you cannot spell the President of the United States’ name without this garbage, you detract from what both we, and you, are trying to address and accomplish. If you think appealing to Marcy, Rayne, Ed, Jim or anybody else will change this, it will not.

      Your voice, and Orion’s, is/are more than important. In fact, they are cherished and critical. Let us try to make them count to the fullest extent possible. Maybe it is not fair that we have to care about such things. That is on us, not you, but it is what it is, and we do have to care.

      • orionATL says:

        maybes this will provide some helpful insight. at least I hope so.

        sudden harsh verbal attacks with no warning and little consensual justfication will arouse fight-or-fight reflex in virtually all humans – flight for most, but not all.

        1. sudden

        2. attack

        3. consensual

        4. reflex

        5. flight and fight

        as for speech content, I don’t think I have ever spoken of this but, for all the years I have written here, I have followed my own code, which is that I speak respectfully of leaders I comment on. given my dislike of typing i could not do this routinely, but often enough i take the time to type out names and titles. I won’t go into why I do this other than to say i think it reads more elegantly.

        but there is another key internal rule I follow which can be in conflict with the first – that I should feel free, within bounds of acceptably decent speech, to use language to express my opinion and emotions in non-courteous ways, and so should others. that explains why I tolerate others’ use of pejorative nicknames; why I don’t like the social censhorship that forbids speech such as gentle mocking of, say, gay politicians or president Trump; and why I dislike but have long tolerated (out of necessity because the proprietors used it) the vulgur language of the shit-fuck variety, which used to be exceedingly common here before the new era of wider awareness of the blog’s value. (alas, those who know me say my day-to-day speech has been corrupted by this long association 😁).

        in my 2 1/2 year accumulation of contempt for president Trump’s, I have recently come to ignore my internal rule 1 and from time-to-time have referred to him as “the oaf in office” and quite recently as ” president imperator” both of which i fancy fit the man quite nicely. I refer to v-p pencecas a worm (in the woodwork); is that, too, problematic?

        in this context, p.j.’s use of “tr*ump” is even leagues milder and kinder than my usage. I simply can’t see anything wrong with using it. more generally, I don’t know of any commenter here who uses what I would consider a truely offensive nckname for an american leader, even the president.

          • orionATL says:

            of course. they may. I’m not sure about that “our” though :).

            I am confident that to the extent there is anything in this comment that strikes a chord with any reader, it will stay and work on that reader’s mind. “sudden, harsh attacks” might be one such. but I can’t predict, only hope.

          • orionATL says:

            😂😂. thanks.

            that depends on whether one is committed to change or not.

            and whether one believes change is possible, as I do.

            and whether one is willing to take the consequences (or not).

  16. earlofhuntingdon says:

    From Fun-sponge, https://twitter.com/FFbpe, I paraphrase this joke:

    Mitch McConnell, an out-of-work coal miner, and an immigrant waiter walk into a bar in Kentucky. Twenty shots of Jack Daniels are lined up. Mitch downs nineteen. He looks at the miner, and says of the immigrant, “That guy wants your drink.”

    And from the Irish Times – quickly outpacing the Guardian as a reliable source of news from northwestern Europe – comes a headline about Mike Pence’s turn as Wormtongue, https://www.irishtimes.com/news/politics/miriam-lord-how-mike-pence-shat-on-the-new-carpet-in-ireland-s-spare-room-1.4006979:

    How Mike Pence shat on the new carpet in Ireland’s spare room.

    The carpet bought specially for a guest and returning son. The dig wasn’t because of the pollution and folderol caused by Pence staying at Doonbeg, Trump’s west of Ireland resort, two hundred miles from his meetings in Dublin.

    It was because he told the Irish that their government should “have respect for the UK’s sovereignty,” and “negotiate in good faith” with Trump stand-in, Boris Johnson, to help the UK leave the EU as quickly and cheaply as possible.

    Mike Pence easily outshines Eisenhower’s Nixon as a DC booklicker, but it is remarkable that he is more skilled than his boss in firing at his foot and putting it in his mouth at the same time.

    • Frank Probst says:

      Staying at Trump’s golf course was an obvious suck-up move to our grifter President. That being said, the Irish countryside is gorgeous, so at least it’ll be a nice 200 mile drive.

      • bmaz says:

        My understanding is that Pence and Mother did not drive. They made the commute by flying on Air Force 2. Which is kind of like me commuting from Phoenix to Flagstaff in a jumbo jet.

        • Frank Probst says:

          I just checked, and of course you’re right. It looks like he’s flying from Shannon to Dublin, which would be a 2 1/2 hour drive. (Google Maps won’t even show me flights from Shannon to Dublin, so I can’t check flight times.) Driving straight from the resort to the Dublin airport would take just a little over 3 hours. The kicker is that the drive from the resort to the Shannon Airport is about an hour, so this is all even more stupid than I initially thought.

  17. earlofhuntingdon says:

    Marcy and her team have built the best blog – and the best comment section – on the Internet. Don’t fuck it up. It may have the look and the feel of a co-op, but she and her team do all the work. And they have succeeded at it longer than Firedoglake was able to do.

    This site has not been commercialized, it has not over-expanded or lost its way. It does not discriminate between those who pay upfront and those who can only afford to read.

    It is supple in its moderation, but has not been overcome by those who oppose its purposes, a very complex dance step. It is still free, so long as we occasionally click on that little button in the upper right hand corner.

    If you need to, lighten up or take a break. Think about why you’re driven to comment here, rather than somewhere else. Then, please obey all traffic signs. There aren’t many: drive on the left, mostly, and cars already in the roundabout have priority. Avoid drinking while driving, and keep up the good work.

    • Savage Librarian says:

      Yes, I would sorely miss this blog and comments if they disappeared. It is an oasis and has given me a great opportunity for a sense of community. I definitely have made goofs in the past. But it has been a learning experience and I appreciate the helpful insights.

    • orionATL says:

      this a kindly, wise, and helpful comment.

      it is however incomplete, and it is fundamentally conservative. it leaves out the need for change and how change can be brought about.

      this blog has been changing in, say, the last two months in an important way. i expect it will continue to do so into the future. by doing so it is working to insure it’s future.

      as it happens, the need for change, in particular in the way government performs it’s work in society, underlies the motivation of all who speak out here.

      • earlofhuntingdon says:

        Not many people call me conservative, so thanks for expanding my range.

        If you deem “conservative” the suggestion that – having been invited to attend the occasional bbq – you refrain from repainting your neighbor’s house or replanting their garden without consent, that’s on you.

        • orionATL says:

          I’d say that “conservative” in any circumstance or environment, small as well as large, means those in positions of privilege operating to protect their privilege by protecting an existing power structure while at the same time working to convince those in the lower orders that that power structure operates to their benefit when it does not.

          • orionATL says:

            if anyone wonders where this definion of conservatism came from, here’s where:

            this is an educated person’s abstract, intellectual reworking of the means of holding onto power by the wealthy and the influential in the American south. it applies on a large scale. so as not to appear offensive in a personal context, I omitted the essential element of setting poor whites and poor blacks against each other, aka racism.

            sharp observers of their society have been making this observation of southern politics at least since the 1840’s. everyone knows about it. that is why ronald reagin’s first campaign speech of 1980 was in Philadelphia, miss. whose place in history I do not need to recount.

  18. earlofhuntingdon says:

    Like the United States, Brazil is ruled by a staunch democrat, an egalitarian leader of all of his people. https://www.theguardian.com/world/2019/sep/04/jair-bolsonaro-michelle-bachelet-brazil-police-killings

    The current United Nations high commissioner for human rights, Chilean Michelle Bachelet, described as “shrinking,” the space for democracy in Brazil. A direct if restrained and uncontroversial observation.

    In response, Jair Bolsonaro had this to say about her family’s experience of torture under Pinochet (emphasis mine):

    “She is defending the human rights of vagabonds,” the Brazilian president told reporters on Wednesday. “Senhora Michelle Bachelet, if Pinochet’s people had not defeated the left in 73 – among them your father – Chile would be a Cuba today.”

    Unapologetic fascism is making a global comeback. Its proponents have the status of “an active shooter,” but with more far-reaching destructive potential. We’ve been warned. What we do to avoid its consequences is on us.

  19. earlofhuntingdon says:

    Joe Biden just claimed that he has never put the interests of big business above those of the young. https://twitter.com/rtyson82

    His first act as president, then, will be to revoke his egregiously pro-bank and anti-consumer 2005 Bankruptcy Reform Act, and replace it with pro-consumer financial reforms that will protect struggling families. He will then do away with student loan debt and dismantle the rapacious industry that feeds off it.

    His next moves will be to immediately impose stringent, across-the-board environmental regulations; make affordable, universal, single-payer healthcare a reality; re-regulate large banks, airlines, and other big businesses; and put a halt to the racist so-called wars on drugs and crime. He can start by dismantling the much abused civil asset forfeiture regime.

    I’m not aware that any of that is on his presidential “To Do” list. Which means that Joe Biden’s claim is hampered by a certain terminological inexactitude.

    • Eureka says:

      This was a worthy thought exercise, because even if one suspects (with cause) that Joe Biden has no such intentions, it’s even more readily apparent that he is *too tired* to even draft such a list.

      The next administration must be vigorous.

  20. sherry says:

    Am i missing something? Is Flynn’s lawyer arguing that Flynn lied under oath when he said he was guilty, was not coerced, and did, in fact, commit the crime?

  21. Eureka says:

    OT musical diversion (spoiler: Adele & retro Da Bears!). This gal has a talent for placing songs over other music videos, cross-cousin-like reminiscent of punaise’s gifts with lyrics and topics du jour.

    Marci Robin: “Tragically, this clip was deleted upthread. But in honor of football season (I guess) I’m bringing it back because it’s a favorite of mine.…”
    https://twitter.com/MarciRobin/status/1169416210104115202

    It’s a threadful: Gene Kelly, Pat Swayze, lots of others were good (Drake/Arthur’s Theme; Ludacris/Dancing Queen).

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