emptywheel Fact Check Service — DOJ, 1-1 // Sidney Powell, 0-29

The other day, I noted an error in the government surreply to Sidney Powell. The government said Peter Strzok raised a question left in a draft 302. But it appeared — comparing the question with the notes in question — that the question had to come from Joe Pientka, based on DOJ’s representation of whose notes were whose.

Update: I think I found another error. The government says that the only thing interesting in the February 10 redline of the 302 is Strzok indicating he didn’t remember two details — that Flynn said he had no particular affinity for Russia, and that he didn’t remember that Flynn said his government Blackberry wasn’t working in the Dominican Republic.

Contrary to the defendant’s assertion, there were no material changes made after February 10, 2017, to the draft of the January 24 interview report. See Reply at 26. On February 10, 2017, DAD Strzok highlighted two—and only two—sentences where he did not recall a statement that the other interviewing agent included in the draft of the report.

But this must actually be Pientka not remembering these things, because both details show up in Flynn’s notes.

The government just informed Sidney Powell and Emmet Sullivan of the error, which was actually the reverse of what I surmised, that they had the ID on the notes backwards.

Last evening, we received word that our Surreply may have misidentified the authorship of the handwritten notes from the January 24, 2017 interview of your client. Specifically, we were informed that the notes we had identified as Peter Strzok’s, were actually the other agent’s notes (see Surreply, Exhibit 1), and what we had identified as the other agent’s notes were in fact Strzok’s notes (see Surreply, Exhibit 2).

This morning, we asked the FBI to re-examine the electronic records from the January 24 interview, and they confirmed that the government mistakenly identified these notes in its March 13, 2018 discovery letter. Strzok’s notes are those numbered DOJSCO-700021192—DOJSCO700021195; and the other agent’s notes are those numbered DOJSCO-700021196—DOJSCO700021198. We understand that this has caused some confusion, and we regret our error. The government has no other corrections to make about the notes.

I don’t know that I’m the one who gets credit for spotting the error, though I know lawyers in every case I’ve covered closely have followed my own coverage closely (DOJ’s press people have been really uninterested in speaking to me of late, for possibly justifiable reasons, so I didn’t call and ask).  But I certainly IDed this as an error, and it got fixed, the second day after the weekend.

So I’m running 1-1 correction rate on the substantive errors I’ve found in the government’s briefs.

Compare that with the errors and misrepresentations I’ve found in Sidney Powell’s briefs in just five months. Among the errors or lies I’ve IDed are:

  1. Falsely claims things don’t show up in the Strzok and Pientka notes that she hides with a sketchy cut and paste job (here, here)
  2. Whether DOJ provided everything considered Brady before Flynn pled guilty a second time (here, here)
  3. How long it took to move Peter Strzok off of Mueller’s team (here)
  4. Why Lisa Page left FBI (here)
  5. Whether Flynn had the Strzok-Page texts before pleading guilty (here)
  6. Claims Strzok texts saying he was concerned about leaks about Trump associates is proof of bias against Trump (here)
  7. Whether Strzok treated Flynn fairly given the record (here)
  8. Egregiously misquotes a Strzok 302 (here)
  9. Ignores that a Lisa Page 302 proves her misquote is wrong (here)
  10. Presents proof that everyone recognized Flynn lied then claims it proves the opposite (here, here
  11. Claims DOJ didn’t notice Flynn about something Comey said that Emmet Sullivan was in the loop on (here)
  12. Misstates the seniority of Bruce Ohr (here)
  13. Whether 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) (here)
  14. Whether the Ohr memos pertain to Flynn; none of the ones released so far have the slightest bit to do with Flynn (here)
  15. Misstates the timing of (and therefore who paid for) Nellie Ohr’s research into Flynn (here)
  16. Whether Andrew Weissmann was in charge of the Flynn prosecution (here)
  17. How many meetings Weissman and Zainab Ahmad had with Ohr — 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 (here)
  18. Includes a complaint from a Flynn associate that pertains to alleged DOD misconduct (under Trump) to suggest DOJ prosecutors are corrupt (here)
  19. Whether a polygraph Flynn passed in 2016 has any import to crimes he committed in 2017 (here)
  20. When Flynn joined the Trump campaign, which if true, means she’s accusing Flynn of lying to the FBI (here)
  21. The import of key details in a timeline (here)
  22. Treats the standard for charging counterintelligence crimes as the standard for opening an investigation into them (here)
  23. Complains that a redaction hiding that there was no FISA order targeting Flynn hides FISA abuse on him (here)
  24. Claims that an order showing problems with FISA 702 — some committed while Flynn was NSA and none used before June 2017 against Trump’s people, after which those abuses were fixed — proved Flynn had been a victim of FISA abuse (here)
  25. Completely misunderstands the FISA 702 memo (here)
  26. Claims the use of EO 12333 collected information — something her client did for 30 years — was against the law (here)
  27. Claims phones that have nothing to do with her client prove her client is innocent (here)
  28. Claims Flynn’s meetings with her on how to blow up his plea deal were actually meetings during which he was cooperating with EDVA’s prosecutors (here)
  29. Claims a letter in which Chuck Grassley demands that Flynn be given exculpatory information is instead a Grassley assertion that DIA material Flynn already received that the govt says is inculpatory is exculpatory (here)

Again, these are not even all the errors I’ve found in Powell’s briefs.

Yet, as far as I know, she has never corrected a single one of these for Emmet Sullivan — she hasn’t even stopped making some of these key false claims.

I’ll grant you that the government’s error is embarrassing. I shouldn’t need to fact check the FBI 18 months after the fact!

But it also happens to undermine several of Powell’s claims. It means Strzok, who was the main interviewer, really did take sketchier notes, as Powell says he would have. It means that Pientka, not Strzok, is the one who took notes so OCD that Powell says he shouldn’t investigate her client — but also means that the Agent she has no gripe with took the more substantive notes. It means that the redline shows Strzok challenging Pientka about material he included that Strzok didn’t remember.

In other words, it undermines yet more of Powell’s conspiracy theories.

And it doesn’t change that both sets of notes and all three 302s back the charges of false statements that Flynn pled guilty to.

Updated to include a 29th false claim of Powell’s because it’s a particularly galling one.

19 replies
  1. Peterr says:

    “But it also happens to undermine several of Powell’s claims.”

    You know you’re having a bad week when the government admits to and corrects an error, and it ends up making your case worse.

  2. bmaz says:

    Yeah, the last paragraph is key: It doesn’t change squat as to Flynn’s guilt and his plea allocution.

    • bmaz says:

      As to DOJ, hard to see that they did that, it looks like an honest mistake. An embarrassing mistake, but a mistake. Powell on the other hand, that applies completely.

      • BobCon says:

        Maybe Flynn can use this to get a refund.

        I joke. He’s probably not the one who is really paying her….

  3. Mitch Neher says:

    It’s a Garbling Gun that works just like a Gatling Gun except that the thing shoots garbles instead of bullets.

    There’s some question remaining as to whether The Garbling Gun hastens the “brain death” of the Republican Party or relies upon that preexisting condition to keep the big hand-crank turning.

  4. Bay State Librul says:


    Is there anything anyone can do to abolish the Office of Legal Counsel or whatever it is called.
    They are acting outside the Constitution with their fucking interpretations. Besides the Supreme Court, they have more power than a King.
    There is no constraints to this voodoo office.
    When will Barr be hauled up to Capitol Hill for grilling?

    • Peterr says:

      If OLC got abolished, they’d have to create a new one. After all, *someone* has to be able to say what the official legal position of the executive branch is.

      The power of OLC is binding only on the executive branch. Beyond that, their power is entirely persuasive. The fact that Congress and (to a lesser extent) the Courts defer to OLC is not a matter of law but of custom. Based on more than a few screwy opinions (Torture, anyone?), that custom is due for a bit of scrutiny.

      If you want to rein in the OLC, the best place to do it is in the confirmation of the nominee to head up the office. In Jan 2009, Barack Obama nominated the highly qualified Dawn Johnsen to follow the execrable John Yoo et al., but failed for over a year to put his weight behind the nomination to get her confirmed. As bmaz noted (though the header says Emptywheel, it was written by bmaz) back in the day this seems to have been more of a nomination to placate progressives than to actually get someone in place with a more constrained view of executive power.

      It strikes me as necessary to follow up a bit on the death of the Dawn Johnsen nomination to lead the Office of Legal Counsel at the Department of Justice. Specifically, it needs to be clear the conventional wisdom of the main media, and even a surprising number of normally more clear headed progressive bloggers, that the nomination failed because of opposition from Republican obstruction coupled with opposition by Ben Nelson, is completely and patently false. . . .

      . . . I have previously written extensively on why there were at least 60 votes for Johnson’s confirmation for the entire second half of last year after Al Franken was sworn in, and why there still were 60 votes for her confirmation this year upon Obama’s renomination, even after the Scott Brown victory in Massachusetts. If you have any question, please click through and refer to those articles . . .

      So, it was not Ben Nelson who killed the nomination of Dawn Johnsen, nor was it Arlen Specter or Senate Republicans. No, the sole reason Dawn Johnsen is not leading the OLC is that Barack Obama and his coterie of advisors did not want Dawn Johnsen leading the OLC. The Obama Administration cravenly hung their own nominee out to dry, and the reason is almost certainly that she was not compatible with the Administration’s determination to maintain, if not expand, the Bush/Cheney positions on unbridled executive power, indefinite detention without due process as well as warrantless wiretapping and other Fourth Amendment invasions.

      [Internal links omitted]

      When bmaz said “coterie of advisors,” you can be sure that Rahm Emanuel was at the head of that group.

    • Areader2019 says:

      Strangely, I think that is the plan

      1. Throw up the conspiracy theory stuff that Trump loves to hear

      2. Antagonize ES

      3. Get a punitive sentence

      4. Angle for the pardon because the deep state is unfairly singling out Flynn, a good man.

      I mean, I don’t think it is a good plan. But that is what it looks like they are doing.

      • Fr33d0m says:

        Yeah, the plan here is probably not to win the case, but to murk it up enough to make a pardon seem less like a payment for services rendered. As much as we revel in the coming smack-down, its not likely to do much to block the pardon pen.

  5. Zirc says:

    One thing I’ve wondered about regarding Flynn’s about face on his guilty plea is whether it places his son in jeopardy. I have assumed, and I thought others were also assuming, that part of the plea deal was that Jr escapes prosecution. But Flynn, through Powell, has been throwing a monkey wrench in the works of his plea. So is Jr in the clear?


  6. Frank Probst says:

    Question that I haven’t seen raised yet, and I’m asking it from the vantage point of being totally ignorant: Flynn just tanked the government’s case in another trial by changing his story. We don’t have to speculate about whether or not the jury would have found the guy guilty, because the judge let the trial run through to the jury’s verdict before he threw out the case. Is this going to come up at some point in the future? Can the judge ask, “What exactly happened there?”

  7. porthos says:

    Great work from Empty Wheel. Amazing mental cataloguing of a million facts spawned by the endless permutations of the 2016 madness America fell into.

    Yes, the FBI mislabeled the Strzok and Pientka handwritten notes from a 1/24/2017 Flynn interview.They are sorry, but shiznit happens and it wasn’t material.

    “We understand that this has caused some confusion, and we regret our error. The government has no other corrections to make about the notes.”


    Well of course Twitter went crazy and all the tin foil hat conspiracy experts went crazy. America and trump were under heavy fire and the coup was being laid bare and imminent.

    Looking at some more reliable sources than Twitter conspiracy tin foil hats shows that their 302s were switched by mistake but with no effect, in the end, on the testimony. This error has been spun into a new DEEP STATE conspiracy theory. It’s an embarrassment and a careless mistake by the FBI. The FBI makes mistakes. Not all of them are DEEP STATE conspiracies plotted by Strzok and his Lover Lisa Page. I’m not sure why we have to be constantly reminded about Lisa and Peter and their affair. It seems to be an automatic and utterly annoying Tourette’s style tic you get as a right wing conspiracy theorist.

    Anyway the 302s were mislabeled and the Twitter deep state conspiracy theorists leaped on it like a pack of starving rats on a slice of pizza. In this trump presidency, the FBI has to be perfect; any mistake is an attempt at a coup to bring trump down. This particular mistake was spotted and corrected and in the end was inconsequential. It did make for some red hot Twitter threads and a lot wasted energy by deep state conspiracy theorists.

    This deep state stuff and the constant spin of conspiracy theories needs to stop. How can we get America to fact check, vet sources and evaluate content? Wish we could stop the smoke choking what used to be a reasonably clear place to live.

Comments are closed.