Sidney Powell Proves She (and Everyone Else, including Timothy Shea) Was Wrong about the Logan Act

Sidney Powell has released the next set of documents that Jeffrey Jensen has been serially feeding her and through her the frothy right.

They prove that the entire premise of DOJ’s Motion to Dismiss the Flynn prosecution — and everything Powell has been spewing for a year — is wrong.

That’s because the Timothy Shea Motion to Dismiss claims that FBI seized on the Logan Act as a reason — the sole reason — to extend the investigation into Mike Flynn.

The FBI had in their possession transcripts of the relevant calls. See Ex. 5 at 3; Ex. 13 at 3, FBI FD-302, Interview of Peter Strzok, July 19, 2017 (Date of Entry: Aug. 22, 2017). Believing that the counterintelligence investigation of Mr. Flynn was to be closed, FBI leadership (“the 7th Floor”) determined to continue its investigation of Mr. Flynn on the basis of these calls, and considered opening a new criminal investigation based solely on a potential violation of the Logan Act, 18 U.S.C. § 953. See Ex. 3 at 2-3; Ex. 7 at 1-2; Ex. 8 at 1-5, FBI Emails RE: Logan Act Jan. 4, 2017.

Indeed, Shea’s memo claimed there was no criminal purpose to interview Flynn.

Notably, at this time FBI did not open a criminal investigation based on Mr. Flynn’s calls with Mr. Kislyak predicated on the Logan Act. See Ex. 7 at 1-2.4 See Ex. 3 at 2-3; Ex. 4 at 1-2; Ex. 5 at 9. The FBI never attempted to open a new investigation of Mr. Flynn on these grounds. Mr. Flynn’s communications with the Russian ambassador implicated no crime. This is apparent from the FBI’s rush to revive its old investigation rather than open and justify a new one, see Ex. 7 at 1-2, as well as its ongoing inability to espouse a consistent justification for its probe in conversations with DOJ leadership, See Ex. 3 at 5. In fact, Deputy Attorney General Yates thought that the FBI leadership “morphed” between describing the investigation into Mr. Flynn as a “counterintelligence” or a “criminal” investigation. Id.

But notes from Tashina Gauhar recording a January 25 meeting on the interview confirm what I had laid out: the purpose of the interview was to assess whether Flynn had a clandestine or agency relationship with Russia — that is, whether he was an Agent of Russia, which is a crime under 18 USC 951, the crime the original investigation into Flynn was predicated on and the crime the investigation continued to be predicated on, even as other potential crimes — including but not limited to the Logan Act — got added.

Importantly, Gauhar recorded the conclusion of that meeting, which adds context to another of the claims Powell has made for the last year. She described how from a CI perspective, FBI “did not think [Flynn was an] Agent, but need to verify.” From a criminal perspective, FBI was “not willing to say at this point, now.” And from a view of compromise, FBI discussed defensive briefings (though it’s not sure whether for the White House or Flynn).

In a draft timeline, someone translated this into the conclusion that FBI “did not believe General Flynn was acting as an agent of Russia,” but without the clear caveat that Gaushar recorded, that the FBI needed to verify whether that initial conclusion was true.

Viewed in context, this conclusion only reinforces the clear evidence that the FBI was investigating whether Flynn was a foreign agent (for Russia, in addition to what would become clear included Turkey), because this was the initial conclusion the FBI offered in a meeting the day after the interview reporting on their findings. But the entire record also makes it clear that FBI would continue to investigate that claim, whereupon they found more damning information against Flynn.

You may now dismiss every single claim about the Logan Act’s import in the investigation into Mike Flynn, as that was (transparently) all just gaslighting.

Furthermore, you can dismiss the claims about doctored 302s, because Gauhar’s notes directly map the final 302s, including the assertion that Flynn denied the substance of his calls both on Israel and sanctions.

In her filing misrepresenting what the notes say, Powell complains that the agents claimed Flynn first denied than admitted the number of calls; Gauhar only records the former, though it’s not even clear what the context is (that is, whether the question was about the number of calls on December 29 and 31, or the frequency of calls over the course of the Transition). In any case, that wasn’t a charged lie.

Gauhar even succinctly described, in real time, what the FBI had concluded: Flynn’s answers were false, but he appeared to believe them.

The FBI would develop, over time, additional reasons to know that Flynn had deliberately lied, most notably proof that the Transition team had discussed sanctions with him before the Kislyak call, making it clear Flynn had lied when he claimed he didn’t know about the sanctions at the time of his calls with Kislyak. Worse still, Flynn would ultimately admit that he created a cover email to hide what he had discussed in real time.

On January 25, it was reasonable to take Flynn’s demeanor and conclude he didn’t think he was lying. But not after you came across the record showing that he planned to cover up the calls as soon as they were made, even before the leaks gave reason for him to lie publicly.

Finally, Sidney Powell’s own filing totally undermines the government motion to dismiss in one other way. Powell asserts that the documents newly disclosed to her were “known to at least ten people at the highest levels” of DOJ and FBI.

These documents both corroborate information provided by others previously and provide new information known to at least ten people at the highest levels of the Department of Justice and the FBI.

Shea’s Motion to Dismiss was premised on a false claim that these facts weren’t known to the highest levels of DOJ. That insinuation has always been obviously false. But now Powell has made it clear she agrees. Which, if the DC Circuit reviews the Mandamus petition en banc (as a filing today staying the order suggests they’re likely to do), may be an important detail if Judge Emmet Sullivan ever gets to review how DOJ came to flip-flop on prison time for Flynn if they had all this information when they recommended prison time.

28 replies
      • John Lehman says:

        Sorry didn’t mean to cross any lines. By Rome meant Rome before Constantine.
        Before 312 AD.
        Our decadence…well it’s sorta on a free fall.

        • P J Evans says:

          They got pretty decadent. We may have corruption, but most of us are Puritans by comparison.
          (I suspect that the middle and lower classes in Rome weren’t decadent, either. It takes a lot of sesterces to live the high life.)

        • ducktree says:

          Indeed! Just this morning, reflecting on the nutzification going on throughout the nation, I had a hankering for a re-broadcast of the miniseries “I, Claudius” with Derek Jacobi. Good times!

          • P J Evans says:

            I found that Kobo has “classics” that are free (pulled in from Gutenberg and Internet Archive). So I have “Decline and Fall” in my library. (If the Great Books were in ebook form, I’d probalby get them. But I can get a lot of those that I actually want now.)

  1. Peterr says:

    Welcome to Sidney Powell’s “Master Class in Statements Against Interest”

    Sure, *anyone* can speak against their own client’s interests. But how many folks do you know who can teach you how to speak not only against your client’s interest, but also against the interests of co-conspirators from DOJ who are trying to help your client?

    Truly, she is a master.

    • Yohei72 says:

      That’s one of the things that’s so infuriating about the Trump era – these crooks are so fucking incompetent. And yet they keep getting away with it. It’s insulting, on top of everything else.

  2. bmaz says:

    How Would Logan Act Anyway?

    I am contacting Lin-Manuel Miranda to collaborate on Logan! the Flynn musical.

    • paul lukasiak says:

      that will depend on whether Judge Gleeson reads emptywheel. If he does, I expect an amended amicus brief the minute the en banc court overturns the Rao panel.

      • bmaz says:

        Thank gawd nothing depends on Gleeson, who has not been a judge in over four years, and who penned a half assed worthless “amicus”. This is being run by Beth Wilkinson now, and that is a good thing.

  3. Savage Librarian says:

    Bravo, Marcy! We can always count on you to never overlook anything. But for those who may have and for the en banc here’s some easy listening:

    “I’m Looking Over a Four Leaf Clover” (1927)

  4. earlofhuntingdon says:

    “Flynn’s answers were false, but he appeared to believe them.”

    With the average person, talking about a topic they had no particular interest in, that might be sufficient statement. But a mature consumer would not rely on that impression when dealing with the average used car, appliance, real estate, insurance, or cable television salesperson. The average litigator would not stop at that appearance when examining a witness. An experienced medical doctor would not accept that appearances when asking the average patient about their consumption of food, alcohol, or sex. It would not appear to be a sufficient standard for an FBI investigation of a senior politico-military official in Washington, DC, especially not a thirty-year veteran of army intelligence who had acquired three stars.

  5. Molly Pitcher says:

    It’s Friday, so we know what that means ! Career bloodletting !! The latest from the NYT:

    AG Barr Moves EDNY Prosecutor Richard Donoghue to Main Justice, Installs Top DOJ Official at EDNY

    Attorney General William Barr has pulled Richard Donoghue from his role as U.S. Attorney for the Eastern District of New York to take on a new role at Main Justice. After rumors of a reshuffling last week, the Justice Department confirmed the news in a statement on Friday, announcing that Donoghue will be leaving his role to serve as Principal Associate Deputy Attorney General, or top deputy to Deputy Attorney General Jeffrey A. Rosen. Donoghue, seen as close to Barr, was tasked with supervising all DOJ investigations involving Ukraine in February. His office also played a major role in the federal investigation into President Trump’s inaugural committee

    • Rugger9 says:

      So, it appears Donoghue is AG Barr’s henchman. All of these investigations are to find and bury DJT dirt when AG Barr is involved.

      So, will Judge Sullivan need to make another brief to the en banc or is 69 pages enough? I was pleased with his reasoning and look forward to Wilkerson’s input as well if/when the appeal is heard. When will the DCC decide on the en banc request?

      If it happens will the other judges take Rao to the woodshed?

  6. Yargelsnogger says:

    Non-lawyer here, but it sounds to me like Mr Shea’s behavior in this has been pretty atrocious. Are there any likely avenues of sanction for him (and what seem to be a small legion of bad actors in Barr’s JD)? Disbarment at least seems appropriate when a prosecutor either incompetently or maliciously perverts justice. Any thoughts on this?

    • Rugger9 says:

      While it can happen, in practical terms this takes a court referral to get any traction based on direct observation. That court referral usually takes a series of offenses. I would think it more likely that Powell gets referred than Shea. Mere incompetence is usually not punished that way. Powell’s actions had more intent in them.

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