The Giglio Brady Head Fake in Sidney Powell’s Latest

I’d like to congratulate Sidney Powell, whose motion to show cause is less batshit than the Brady motion I unpacked here (note, these motions work together, but we only got this most recent one today because it had been submitted under seal under the protective order until the government redacted the names of some FBI Agents).

Powell fancies both motions as demands for Brady material she claims has been withheld in violation of Emmet Sullivan’s standing order that the government produce Brady material even to defendants that, like Flynn, plead guilty. But the key to understanding the motion, in my opinion, comes in the middle of a list of things she demands. She asks not just for Brady material (that is, evidence that is exculpatory to the charges Flynn pled guilty to), but also for any new Giglio information discovered by the government in the last two years.

Brady or Giglio material newly discovered by the government (and by the Inspector General in his separate investigations) in the last two years.

Giglio material is information that would impeach potential witnesses.

To understand the distinction, consider Powell’s complaints about recent discovery she got, which is batshit insane on its face.

To substantiate her claim that the government has violated its Brady obligations, she points to materials Brandon Van Grack had just provided the week before this motion.

In fact, just last week, Mr. Van Grack produced an additional 330 pages that included information that any reasonable attorney would understand as Brady evidence in light of Special Counsel’s investigation and assertions that Mr. Flynn was an undisclosed “agent of Russia” or an “agent of Turkey.”2 That production also shows that Mr. Flynn passed his polygraph test in 2016 and his security clearance was renewed. This was at the same time the FBI seems to have been investigating him under the pretext that he was an “agent of Russia” and/or of Turkey. Interestingly, the new production also shows that James Clapper refused to assist in the investigation for Mr. Flynn’s security clearance, which Mr. Flynn received after a full investigation despite Mr. Clapper’s actions.

She makes several crazy ass claims in this passage. First, she boasts that Flynn was able to pass a polygraph in April 2016 at a time, she claims, that he was under investigation for being an agent of whatever country was offering the highest bid. It’s unclear when the investigation into whether he was a Russian agent started. But the investigation into whether he was a Turkish agent hadn’t started yet because the underlying conduct hadn’t started yet! Moreover, Flynn didn’t plead to being a Russian agent (indeed, the investigation into whether he was compromised by Russia may have been reopened and remain open), so whether that poly reflected about him being so is irrelevant to the charges (and therefore not Brady).

In other words, Powell is claiming that a successful April 2016 polygraph is proof of innocence for lies Flynn told in January 2017 about contacts with Sergey Kislyak in November and December 2016, and lies he told in March 2017 about a relationship with Turkey that began in July 2016 and he was actively hiding in August through November 2016, when he was getting Top Secret briefings with candidate Trump. On its face, it’s a batshit insane claim (which is probably why Sara Carter is running with it).

Oh, and remember, the FBI agents who interviewed Flynn were pretty impressed with his ability to appear convincing while telling what they knew were outright lies. Flynn is (unsurprisingly, for a lifetime intelligence officer) good at lying.

But that’s almost certainly not why Powell is interested in this polygraph (it’s also almost certainly not why she got it, either, but I’ll reserve that explanation for a later time). She’s interested in the poly because it shows that Mike Flynn was able to renew his clearance even though James Clapper, who had fired him, would not recommend he have it renewed. That is, she wants to highlight this as part of an argument that the investigation into Flynn and everyone else was part of a Deep State coup against Trump and his flunkies.

In fact, most of her non-crazy requests (and there are a number of them) fit that narrative too. It’s not about any exculpatory evidence against Flynn — he already got that. It’s about allegedly damning details about the people who investigated him, to include Peter Strzok and James Clapper and Jim Comey and a slew of other people. But that’s Giglio, material that might make these people look bad if they ever had to testify against Flynn, not Brady (and with the exception of Strzok, none would have testified against him, and FBI could have avoided having Strzok testify too).

It actually is an interesting question about the scope of Sullivan’s standing order (though as Van Grack made clear in yesterday’s hearing, Flynn actually got a lot of stuff Powell claims he should have gotten before he pled guilty before he did plead guilty first once and then a second time). And Sullivan may well rule that Flynn should get some of it. But none of that will change that he lied over and over about his behavior while in the employ of Donald Trump.

That’s not the only thing Flynn is doing with this motion (he also seems to be fishing for evidence of selective prosecution based on KT McFarland’s ability to clean up her testimony after Flynn flipped). But it is the central one.

18 replies
  1. Areader2019 says:

    Flynn is (unsurprisingly, for a lifetime intelligence officer) good at lying.

    This is the weird thing about polygraphs. I had a friend in a minor role at State Dept, And the govt uses polygraphs, believes in polygraphs, and administers polygraphs.

    But everyone working there believes that they can personally beat a polygraph. They sit around and drink beer and practice beating the polygraph. It’s like a party trick.

    • P J Evans says:

      One of my friends was wanted in order to do a programming job. The catch was that it required passing a polygraph – and he never has. They even flew him to Baltimore to talk to a shrink before hand, and no good. (His reactions are the same to “Is your name?” as to “Are you now or have you ever been a member of?” He’s now retired.)

      • Areader2019 says:

        If his reactions were always exactly the same, that is actually good. It hides the lies.

        My friend told me she tried to tense up her calves as much as she could without moving on the control questions. So she got cramps when answering ‘what is your name, what is your street address?’

        Then when she was lying, she would relax.

        • P J Evans says:

          They’d still hire him for some jobs – but he was uncleared, and had to be escorted all the time. (His specialty was real-time controls and weird device drivers.)

          • DMM says:

            So, they had a procedure by which they could circumvent the outcome of the their security “test” when it was wrong (or seemed wrong to them)… which was clearly often enough that they drew up a way to basically disregard it. Sounds like a brilliant system!

            • P J Evans says:

              If you want to look at it that way – but it meant in practice that he was always an outside contractor. (His own business was as a systems consultant. Some of his customers bought x hours per year.)

        • Drew says:

          Yeah, I’m pretty sure that what happens when people always fail polygraphs is that they get stressed whenever a real (as opposed to baseline) question is asked. While in theory the array of questions should mask which is which, there are plenty of smart people with good intuition who can tell the real questions–and even when they are telling the truth, they are stressed by them. Some people are less capable of the psychological training to be able to manipulate this & calm down.

    • North Jersey John says:

      A quick story about a dumb kid beating a polygraph (back in the early 80’s). The restaurant where I worked was “broken into” after a number of us workers had an after hours party, helping ourselves to free beer and food. Several of us suspected one of the party ringleaders may have helped themselves to register as the last one out. The owner suspected the same thing. He compelled all of us to participate in a private investigation, to “cooperate” and help find out what happened. Several of us (aspiring actors) had training in meditative breathing and deep conscious relaxation. The word went out — focus on breathing, keep heart still, keep voice monotone, achieve deep relaxation while in waiting room.

      We all passed the poly with flying colors, including the guy who probably lifted the till.

  2. Diggo says:

    As far as I’m aware, there is no scientific basis whatsoever for polygraph. It’s about as real as making someone do headstands while answering questions.

    • Rugger9 says:

      Indeed, that’s why there is a polygraph protection act notice prominently displayed where I work, saying one can’t be forced to take one.

    • JohnJ says:

      Simple; it takes a conscience to fail a polygraph. They are worthless on people like Flynn. It can only measure the results of your discomfort telling a lie (in reality, your reaction to the question you are about to give a false answer to). The device was once floated as a detector for Sociopathy, psychopathy, anti-social personality since one of the defining characteristics is a lack of what can be call conscience.

      Now for normal people to pass them there is a hobby industry of techniques for those who have to take them all the time. The guys that know all the techniques are … police officers, they get them all the time. You have to be a close friend (rare for a non LEO) or get one real drunk to break that blue wall. When I worked in NSA R&D stuff, a lot of my fellow geeks had to take them regularly. Being geeks, there was tons of discussion and experiments on how to beat them.

      The one I thought was funniest is to clinch your sphincter throughout the test; it is a very strong muscle and clinching it raises your vitals enough to mask any subtle changes. I read somewhere that they started putting strain detecting pads on the seats to detect it.

      From what I was told by a friend who was an operator for a while, in reality it a clever interrogation. It isn’t the actual machine doing the investigation but the pre-test interview that is the key.

      In Gov’t circles they are considered a joke.

  3. Willis Warren says:

    This is a hilariously dumb demand:

    4) All payments, notes, memos, correspondence, and instructions by and between the
    FBI, CIA, or DOD with Stefan Halper—going back as far as 2014—regarding
    Michael Flynn, Svetlana Lokhova, Mr. Richard Dearlove (of MI6), and Professor
    Christopher Andrew (connected with MI5) and Halper’s compensation through the
    DOD Office of Net Assessment as evidenced by the whistleblower complaint of Adam
    Lovinger, addressed in our brief. This includes David Shedd (former Deputy Director
    of DIA) and Mike Vickers, who were CIA officers; James H. Baker; former DIA
    Director LTG Stewart; former DIA Deputy Director Doug Wise; and the DIA Director
    of Operations (DOD). This should also include any communications or
    correspondence of any type arising from the investigation or alleged concerns about
    Mr. Flynn that contained a copy to (as a “cc” or “bcc”) or was addressed directly to the
    DNI James Clapper and his senior staff; to CIA Director Brennan and his senior staff;
    or to FBI Director Comey, his Deputy Andrew McCabe and senior staff.

  4. orionATL says:

    looking ahead at the propaganda campaign flynn and sidney are putting together:

    “…[lawyer sidney is] interested in the poly because it shows that Mike Flynn was able to renew his clearance even though James Clapper, who had fired him, would not recommend he have it renewed. That is, she wants to highlight this as part of an argument that the investigation into Flynn and everyone else was part of a Deep State coup against Trump and his flunkies…”

    1. if flynn impressed fbis about how good he was at lying about things they knew he was lying about (and that he may have guessed they knew….), then there is good reason to believe he could have been able to lie without detection under any effort by the fbi. this does happen, you know, and with the most destructive of scoundrels:

    2. as a career intelligence officer and a high-ranking member of u.s. special forces capture, interrogate, kill campaign in the middle east, flynn would have had professional knowledge of lie detection avoidance.

    3. good propaganda requires enemies, e.g., vague, diaphanous enemies operating against good people, for example enemies from “the deep state”, a noncorporeal entity like “urban elites”, e.g., bogeymen.

    all this is moot though regarding flynn’s turkey and Russia activities for, as ew explains, post hoc ergo non propter hoc.

    here is an interesting little aside, a short story about challenging lie detection as a sideline (hint: not profitable):

    i’m not sure. is it the case that lie detector results can or cannot be used as evidence sufficiently reliable to be admitted as evidence? if not, then what might sydney be up to :)?

  5. mospeck says:

    tx EW for teaching interesting legal definitions, distinctions and strategies to us non lawyers. Now I think I got the difference between Brady and Giglio. Lawyer tactics are quite interesting, and it’s clear why Trump and his minion Powell would seek Giglio against Strzok, Clapper, Comey, etc. Impeaching the credibility of these would be a very sound strategy. Also, I do like the use of case names for classifying evidence types, but guess that there is no case name attached to inculpatory.
    It’s now been a month and there is still no Principal Deputy DNI. There is now no NSA (nominally, it’s Charles Kupperman). AG Barr and DAG know-nothing Rosen are numbers one and two at Justice, signing off on prosecutorial decisions. Guess I have as much prosecutorial experience as Rosen.
    So I play the devil’s advocate and make the following hypothesis: Trump is a Russian agent. Not an asset, not a rube, not a stooge, but a quite talented GRU agent, who is now being run by Putin. Note that this is consistent with McCabe’s opening an FBI investigation into the possibility. What happened to that btw?
    How should such an agent look? How should the agent present himself in order to remain active for any length of time? What would be the agent’s goals?
    evidence: slow and systematic undoing of western economic and security alliances, especially NATO, dismantling upper echelons of DOJ, FBI, coordinating offices DNI and NSA. Threaten CIA with clumsy AG investigations, but note that it is a hard target filled with spooks. If directly threatened it could go to war footing and respond with outside the box extralegal tactics that are personally dangerous to both the agent and his handler. In spy vs. spy, both agent and handler are considered fair game.
    So while methodically undoing western alliances and US national security the agent needs to appear to be flaky, frequently saying things like “where’s my favorite dictator?” and “I guess I am the chosen one.” Theatre of the absurd vaudeville show is essential in order to disguise underlying intentions. Agent needs to drum up personal animosities to dangerous targets like Comey, Clapper, Brennan, McCabe, Strzok, Orr, etc. Agent needs to appear frequently illogical, mercurial, imperial and vindictive. For ex. while running on isolationist foreign policy, install interventionist Bolton as NSA, then shortly after, fire him and call McMaster, as if trying to woo him back. Make NSA and DNI into a game of musical chairs. Make a big deal out of having Clapper and Brennan’s security clearances revoked, take McCabe’s pension away with maximal hostility and great fanfare, try to bring clumsy federal charges against both McCabe and Comey, both to discredit them and to provide the cover of having a personal animus against them. Announce harsh economic sanctions against Russia for its “hits” in British tea cups, on Salisbury door knobs and in downtown Berlin parks. But don’t follow through, and then leak to the press to out other Russian defectors who are in witness protection. Putting them on the target list will slow recruitment. Cheat at golf, eat cheeseburgers, ramble and maintain word salad speak, use bad grammar and no spell check. Remember, it’s all just a vaudeville show.

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