13 Routine Aspects of FBI Investigations Sidney Powell Says Should Not Be Used with Mike Flynn

Last night Sidney Powell submitted what procedurally is called her “reply” brief in a bid to compel Brady production. Even if her object were to obtain Brady, this is best thought as her opening bid, as it for the first time she presents this argument. But on page 2, she admits she’s not actually seeking Brady (which makes me wonder whether this entire brief is sanctionable), but instead is seeking to have her client’s multiple guilty pleas dismissed.

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution.

To make her case that her client — who, she herself emphasizes, served for 30 years as an intelligence officer and so was no spring chicken about the ways of the world — nevertheless got duped by evil FBI officers attempting to entrap him by his own actions, Powell attacks the following utterly routine parts of FBI investigations:

  1. People who know things relevant to an investigation are interviewed by FBI Agents, working in twos, who then write up a 302
  2. The FBI doesn’t tape non-custodial interviews, though probably should record more than they do, as 302s can be dodgy
  3. FBI Agents often don’t take notes while they’re interviewing someone, because that distracts from the interview
  4. The FBI would prefer to talk to witnesses — all witnesses! — without lawyers present
  5. FBI will prepare for interviews to ensure they are as useful as possible
  6. FBI often watches how suspects respond to learning about potential criminal evidence against them
  7. Prosecutors try to get suspects to plead guilty by showing them some, but not the most sensitive, damning information they have about them
  8. The FBI usually doesn’t tell people it is investigating that it is investigating them
  9. The FBI is allowed to open investigations when they obtain evidence that might indicate a crime — they don’t have to wait until they have evidence that proves beyond reasonable doubt someone is guilty before they try to collect evidence to try to figure out whether a crime has been committed and if so by whom
  10. People considering pleading guilty meet with prosecutors before doing so to lay out what evidence they’ll be willing to share for a lenient plea deal
  11. Even for cases that may one day end up in Emmet Sullivan’s court, suspects don’t get to review all the evidence the government has against them before they’re charged and even in Sullivan’s court, defendants only get to review the evidence that would be helpful to their defense (or sentencing) pertaining to the crimes in question, not other bad deeds
  12. When the FBI thinks a hostile foreign country is trying to interfere with the United States, it investigates
  13. People who work at DOJ work with other people who work at DOJ

Effectively, Powell’s argument is that none of these very routine things that happen with every single FBI investigation should have happened with an investigation of her client. She has a point that some of them — especially the way FBI writes up 302s — should be fixed. But that doesn’t mean her client is anymore innocent than any of the thousands of other defendants treated similarly.

There’s a ton more that I’ll do in a follow-up post, virtually all of which is misleading but which, because she waited to submit this until her reply brief, the government will need to ask for permission to lay out as false.

She makes just two interesting arguments of merit. First, she argues that Rob Kelner was conflicted when he advised Flynn to plead guilty in 2017.

The government fails to acknowledge, however, that Covington & Burling was the very firm that Mr. Flynn paid more than $1 million to investigate, prepare, and then defend the FARA registration in response to NSD/FARA section’s and David Laufman’s demands. See n.9 supra. By August 2017, when the government threatened Mr. Flynn with criminal charges related to the same FARA registration, former counsel were immediately caught in the vice of an intractable conflict of interest that they never escaped until Flynn engaged new counsel. By no later than August 2017, the conflict between Mr. Flynn and his former lawyers was non-consentable and not subject to waiver. Even if Mr. Flynn had been fully informed in writing of the conflict at that time, the lawyers were obligated to withdraw from the representation without regard to his wishes.

Some conflicts of interest are so likely to interfere with the effectiveness of counsel, and so destructive of the fairness of the proceeding, that courts must prophylactically override a defendant’s proffered waiver of the right to conflict-free counsel.

This is a point I raised the day after Flynn’s original sentencing hearing, which is proof that Emmet Sullivan had an opportunity to raise the conflict issue when he accepted Flynn’s second guilty plea. He did not, even while making damn sure that Kelner’s advice had been adequate.

Since that time, the government has alleged that Flynn lied to Kelner, which would eliminate any possible conflict, because Kelner advised Flynn based off what he told him.

Moreover, the issue of whether Flynn’s counsel was conflicted is utterly irrelevant to any questions about Brady, and so irrelevant to the stated purpose of this motion.

She also argues that precedent holds that Giglio is included in Brady.

The government dismisses its duty to produce impeachment evidence in a single sentence, claiming the Supreme Court has held its Brady obligation “does not extend to impeachment evidence.” United States v. Ruiz, 536 U.S. 622 (2002); Gov. Reply Brief, 7, Oct. 1, 2019. But Ruiz did not overrule Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within the general rule [of Brady.]”), and Bagley, 473 U.S. at 676-77 (stating emphatically “[t]his Court has rejected any such distinction between impeachment evidence and exculpatory evidence”). Both hold that impeachment evidence is encompassed within Brady, and no court has held that Ruiz radically altered the Brady/Giglio landscape. Rather, Ruiz focused on the voluntariness of the plea, and there was not even an allegation that any information was withheld.

This Circuit applies the Giglio and Bagley standard that “‘impeachment evidence . . . as well as exculpatory evidence falls within the Brady rule.’” In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999) (quoting Bagley, 473 U.S. at 676). This is because “evidence that impeaches the [government’s witnesses] is almost invariably ‘favorable’ to the accused, because by making the government’s case less credible it enhances the defendant’s” case. 185 F.3d at 893. When impeachment evidence is exculpatory, as noted in Giglio and Bagley, it is Brady like any other. McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003). The government cannot be the “architect of a proceeding that does not comport with standards of justice.” Brady, 373 U.S. at 88.

Even if she’s reading these precedents correctly, they’re irrelevant to the issue at hand: how Sullivan interprets his own Brady order to incorporate Giglio or not, since Flynn had waived rights to discovery by the time he pled guilty. And since that’s not entirely clear, there is little chance she’ll get Sullivan to sanction the prosecutors, which is one thing Powell wants. Plus, much of what Powell presents — including that Strzok believed Flynn showed no indices of lying — actually undermines her arguments that this stuff impeaches Peter Strzok or others. Still, I expect a rigorous discussion on how these precedents apply when Sullivan reviews this stuff on November 7.

There are two other details about this filing of acute interest. First, Powell notes that DOJ is still refusing to disclose a January 30 memo saying that they did not believe Flynn was an Agent of Russia. Mueller said Flynn’s ties were still being very actively investigated this summer. The line in the Mueller Report that addresses his ties to Russia is redacted. There may be a reason why DOJ is withholding that, one that Powell should give some consideration to.

Also, in a recent filing, the government revealed that there were interviews with Flynn that took place after January 24, at which (they claim) he continued to lie.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

If he did, in fact, lie in these, any one of them could be turned into a False Statements charge quite easily. And they would demonstrate that all her complaints about the January 24 302 are misplaced.

Curiously, Powell doesn’t mention the existence of these 302s in her rant.

Ultimately, though, her main argument is that Mike Flynn should not have been investigated the way the FBI investigates people. I’m not sure that’s going to get her what she wants.

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27 replies
  1. Peterr says:

    But on page 2, she admits she’s not actually seeking Brady (which makes me wonder whether this entire brief is sanctionable), but instead is seeking to have her client’s multiple guilty pleas dismissed.

    This whole post sounds to me like the reply of a doctoral student who is stumped by a question posed during the oral defense of their dissertation: “That question reminds me of a question I wish you’d have asked . . .”

    And yes, she is clearly looking to get the guilty pleas tossed. I’ll leave it to bmaz and the lawyers here to opine on how likely that is, and what mechanisms exist for such a move — but given how carefully Sullivan grilled Flynn at his initial (and aborted) sentencing hearing, I think the brief will only piss Sullivan off even more.

    • earlofhuntingdon says:

      Powell’s performance art seems intended more for delay and to keep Trump’s limited attention span on Flynn than to win legal arguments.

    • diggo says:

      >>“That question reminds me of a question I wish you’d have asked . . .”

      which politicians rephrase as

      “I don’t know about that but let me say this”

      or

      “In response to your question I simply make this point”

      both of which provide diversion to talking points unrelated to the question.

  2. Gretab says:

    Why am I having visions of these arguements appearing in some future filing by a local drug dealer if she isn’t sanctioned? The number of mind-blowing arguements these people present seem like they could indeed change the legal landscape, but not in ways they will be happy about when applied to a non-rich, non-connected person.

  3. Jenny says:

    Thanks Marcy.
    Last line, “… her main argument is that Mike Flynn should not have been investigated the way the FBI investigates people.”

    Perhaps instead, Flynn should get “special dispensation” from the Pope.

    • Salt of the Earth says:

      Perhaps someone can explain why the future National Security Advisor was the target of a criminal investigation and was initially interviewed. He was doing his job when he talked to Kislyak less than a month before the inauguration. No one waits until January 20 to organize the new administration. I have to wonder why President Obama named him specifically as someone of whom Trump should be wary, Clapper ordered the “kill shot”, and McCabe said “First we f*#k Flynn and then we f*#k Trump.” In 2015, at the infamous dinner with Putin and Mifsud, he reported to the IC that he was going and briefed the IC after the visit.

      • Stephen says:

        Also, organizing an administration is not the same thing as meeting with a foreign ambassador to subvert the current administration’s foreign policy.

    • earlofhuntingdon says:

      There is no joy in the White House – mighty Barr has struck out.

      An emergency appeal is probably on the horizon. One more thing for the Don to worry about. The prospect of Bolton’s testimony must worry him more than most.

    • harpie says:

      LOL
      https://twitter.com/joshgerstein/status/1187818354230337537
      12:48 PM – 25 Oct 2019

      Cipollone letter comes back to bite in judge’s decision to grant House access to Mueller grand jury materials. Judge calls it stonewalling [link] [screenshot]

      [HOWELL:] The White House’s stated policy of non-cooperation with the impeachment inquiry weighs heavily in favor of disclosure. Congress’ need to access grand jury material relevant to potential impeachable conduct by a President is heightened when the Executive Branch willfully obstructs channels for accessing other relevant evidence.

    • harpie says:

      omg Marcy’s annotated tweeting thread on this:
      https://twitter.com/emptywheel/status/1187818762763935745
      12:50 PM – 25 Oct 2019

      Wasn’t gonna do this but here goes, on Howell’s ruling that HJC gets GJ materials. As you read along, remember that Howell has approved the overwhelming majority of 500 warrants used in Mueller investigation. […]
      Howell goes all School House Rock on DOJ, which apparently needs a basic lesson in American history. [screenshot]

      Then she does the Hamilton word cloud thing, which one day might be set to music and performed on Broadway. [screenshot] […]

      • Raven Eye says:

        You can randomly stop at just about any page of Howell’s opinion and find some pretty interesting reading:

        Page 70: “These arguments smack of farce. The reality is that DOJ and the White House have been openly stonewalling the House’s efforts to get information by subpoena and by agreement, and the White House has flatly stated that the Administration will not cooperate with congressional requests for information. See Letter from Pat A. Cipollone, Counsel to the President, to Representative Nancy Pelosi, Speaker of the House, et al. (Oct. 8, 2019) at 2.”

    • rip says:

      So is the sinking ship Trump, clinging to the rat Barr?

      Or the (r)epuglicon party clinging to Trump?

      Maybe we need to introduce fleas so the rat can cling to them (or bedbugs in Trump’s case.)

    • Americana says:

      Gary Larson and his Far Side cartoon are sadly missing in action these days… The Trump administration might have turned Larson into a political cartoonist lampoonist extraordinaire. Ah, maybe that’s coming to pass!!!!

      https://www.thefarside.com

      https://www.nytimes.com/2019/09/16/arts/the-far-side-gary-larson-comic.html

      From above link:

      A new era of the The Far Side, the newspaper strip by Gary Larson, is coming.

      Fans noticed over the weekend that the strip’s official website had been updated with a new cartoon and a message: “Uncommon, unreal, and (soon-to-be) unfrozen. A new online era of The Far Side is coming!”

      The cartoon, drawn by Larson, showed a man with an open flame, thawing a block of ice which encased many of the familiar cast of Far Side characters: a cow, a dog, a cave man, a child and a woman.

  4. Michael says:

    The one thing that bothered me about her filing was that from the notes she posted, it DID seem like Flynn said he didn’t remember making 4-5 calls that day and the 302 said the opposite. Does anyone have an explanation for that?

  5. smintheus says:

    Interesting that so many of Trump’s propagandists have been trying to paint David Laufman as a deep state threat to the Republican cause. He is a long time Republican operative, dating back at least to the “October Surprise” faux investigation, where Laufman was one of the GOP “cleaners” who made sure that no troubling evidence ever made it into the light of day. Under Bush the Lesser he graduated to being something of a hatchet man in the DOJ’s program of meting out extreme punishments to anybody who could be (semi) credibly accused of terroristic-like propensities. Laufman’s job essentially had little to do with justice, and was all about rehabilitating Bush’s public reputation as a tough guy because he had totally dropped the ball before 9/11. Then for utterly mysterious reasons, Laufman emerged as Bush’s candidate to take over the highly fraught (and especially under Bush, highly corrupt) job of Inspector General of the DOD. Bush later was forced to withdraw the nomination because it was so obviously an attempt to impose a partisan operative upon an IG office that threatened to expose a lot more Bush/Cheney corruption.

    Laufman must have given himself a certain amount of bipartisan camouflage during the Obama administration, because otherwise the reactionaries’ attempts to paint him now as a threat to the GOP would be patently absurd.

  6. harpie says:

    Tweet from Marcy:
    https://twitter.com/emptywheel/status/1188072792513826817
    5:40 AM – 26 Oct 2019

    I’m supposed to be on a weekend getting away from stress (spouse is out getting breakfast–don’t tell him I cheated).

    But while I’m in the woods, someone should figure out via what means Sidney Powell knows exactly what John Durham is up to?

    [She just added: 5:59 AM – 26 Oct 2019] And to be clear, I mean BOTH that she learned precisely what Billy Barr picked up on his vacation in Italy and who was getting a criminal referral.

    • harpie says:

      Laura Rozen retweeted Marcy, so it seems like she and others might be working on it…

      Julian Tol replying to Marcy:
      https://twitter.com/JulianTol/status/1188079897706549248
      6:08 AM – 26 Oct 2019

      Wouldn’t it be informed guesswork or her part, given that we’re expecting a string of IG referrals and Durham indictments relating to FISA (committing a fraud on a court)? The timing is simple: The IG report will be here next Friday.

      Marcy [Still tweeting! …breakfast must be pretty far away!] 6:15 AM – 26 Oct 2019

      Replying to @JulianTol
      No. I would show the evidence but I need to go pretend to relax.

  7. harpie says:

    Trump tweeted about this this morning.
    First of four threaded tweets, mostly quoting Fox and Friends with a few asides:
    https://twitter.com/realDonaldTrump/status/1188048255797608449
    4:02 AM – 26 Oct 2019

    “General Michael Flynn’s attorney is demanding that charges be immediately dropped after they found that FBI Agents manipulated records against him. They say that James Clapper told a reporter to “take a kill shot at Flynn. This has been a complete setup of Michael Flynn…. […]

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