The Giglio Brady Head Fake in Sidney Powell’s Latest

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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.

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The January 30 Memo Doesn’t Help Flynn Like the Frothy Right Thinks It Does

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As I noted, some of the claims Sidney Powell made today to justify her demand for material that really doesn’t help her client got blown up, including by Emmet Sullivan, before the end of the hearing. Others, such as the fact that Michael Flynn passed a polygraph in April 2016 are undisguised horseshit. How does passing a poly exonerate you from committing a bunch of crimes after you pass it?

But I’m particularly interested in Powell’s complaint that they didn’t get a memo, written on January 30, 2017 clearing him of being a paid agent of Russia. It was another thing Sullivan sniffed out as bullshit during the hearing, noting that that Flynn did not plead guilty to being an agent of Russia. “It has to be more than theoretical relevance,” he politely responded.

Nevertheless the frothy right has seized on it like trained seals.

But it helps Flynn even less than the frothy right thinks.

Obviously, as both Brandon Van Grack and Sullivan noted, he didn’t plead guilty to being a Russian agent. He pled to two other things: lying about being a paid agent of Turkey (while getting top secret briefings during the campaign) and lying about trying to undercut the sanctions Obama imposed on Russia for helping Trump get elected.

But there’s one more problem. Over six months after the Russian agent investigation was closed on January 30, 2017, Rod Rosenstein scoped the Mueller investigation to include four allegations against Flynn.

The Acting Attorney General further clarified the scope of the Special Counsel’s investigatory authority in two subsequent memoranda. A memorandum dated August 2, 2017, explained that the Appointment Order had been “worded categorically in order to permit its public release without confirming specific investigations involving specific individuals.” It then confirmed that the Special Counsel had been authorized since his appointment to investigate allegations that three Trump campaign officials-Carter Page, Paul Manafort, and George Papadopoulos- “committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 presidential election.” The memorandum also confirmed the Special Counsel’s authority to investigate certain other matters, including two additional sets of allegations involving Manafort (crimes arising from payments he received from the Ukrainian government and crimes arising from his receipt of loans from a bank whose CEO was then seeking a position in the Trump Administration); allegations that Papadopoulos committed a crime or crimes by acting as an unregistered agent of the Israeli government; and four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump. [my emphasis]

Two of these are presumably the crimes he pled to, the Turkish foreign agent and lying about his conversation with the Russian Ambassador. One might be his willingness to use his position to sell nuclear reactors to Saudi Arabia (lowering US standards on proliferation in the process). The fourth might be his participation in Peter Smith’s efforts to find Hillary’s deleted emails, which included asking Russian hackers for help, but that had only been disclosed at the end of June.

Whatever it is, though, it’s clear there was still plenty for the FBI to investigate long after the “exoneration” in January.

Which may be how the government will respond to Powell’s silly claims — to lay out all the damning information against Flynn.

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Sidney Powell Gets Caught Lying in Hearing before Emmet Sullivan

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The Mike Flynn status hearing just ended (I livetweeted it here). The outcome is that Flynn’s sealed Brady filing will be posted tomorrow, the government response will be in two weeks, Flynn’s reply will be on October 15. The Brady hearing will be October 31.

Emmet Sullivan tentatively set a sentencing hearing for December 18, the year anniversary for his aborted sentencing hearing last year.

The government said it will file a new sentencing memorandum, suggesting they likely will say he did not accept responsibility for his crimes. Those new filings are due on December 2.

Sidney Powell stated that she does not expect Flynn to withdraw his plea, though she did suggest the entire prosecution should be withdrawn because of egregious misconduct.

The hearing itself was less remarkable than Sidney Powell’s factually impaired briefing last week. But she did manage to get in at least one lie to Sullivan.

She claimed that Flynn had not been provided notice of the Lisa Page – Peter Strzok texts. Brandon Van Grack told the court that Flynn was told Strzok had a political preference before he signed his guilty plea. Van Grack also revealed that Flynn got texts that have not been otherwise publicly released. That means Senator Ron Johnson didn’t release texts that pertained to Flynn (and perhaps were derogatory to him) when he dumped all of them in December 2017.

Powell also complained that Flynn had not been provided notice that Jim Comey “set up the ambush interview” of Flynn. Van Grack made it clear that Flynn received it before sentencing and that Sullivan referenced it at the beginning of last year’s sentencing memo. Powell excused her outright lie about something Sullivan mentioned on the public record by saying the train was pretty far down the track by then.

Powell made much of the fact that the government had already decided that Flynn would not be charged as an Agent of Russia or with a Logan Act violation shortly after his FBI interview. Van Grack noted that that’s not the benefit that the government said Flynn had obtained with his guilty plea.

Finally, Powell suggested that there might have been a prior secret investigation into Mike Flynn based off the secret NSA database, attempting to reference the allegations in the Rosemary Collyer opinion that has to do with targeted surveillance of otherwise targeted US person subjects when they’re overseas. In short, it was rank nonsense based off of Sara Carter’s erroneous “reporting” on the opinion.

All in all, Sullivan took being lied to in pretty mellow fashion. We’ll see whether that continues after Van Grack lays out precisely how batshit some of Powell’s claims are.

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Scotland: A Nexus for Trouble?

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[NB: Check the byline, thanks! /~Rayne]

I started writing this post back in early 2018. Might even have been very late 2017, I can’t tell now. Something about Scotland bothered me at the time even though I’m a keen fan of the country.

Now I’m even more bothered than I was when I first started putting words together about Scotland.

~ ~ ~

There is an old maxim for which I can’t find attribution: “He who holds Stirling, holds Scotland.” Stirling is smack between the Scottish Highlands and Lowlands, on the Central Belt of Scotland — the country’s heart. The saying may once have referred to Stirling Castle, but one might wonder if it means something more today.

The University of Stirling, eighth largest in Scotland, is built on the grounds of a different castle. A public school founded in 1967 by royal charter, the school is relatively young compared to University of St. Andrews (1410) and University of Glasgow (1451). It’s comparable in size to small American state universities. It reorganized in 2016 into four faculties and two schools — faculties of Social Science, Arts and Humanities, Natural Science, Health Sciences and Sport, Stirling School of Management and Stirling Graduate School.

It’s the Faculty of Arts and Humanities to which I want to draw attention, as it includes the London Academy of Diplomacy.

You may also know this as the school which employed Professor Joseph Mifsud, the Russian agent who told Trump campaign foreign policy adviser George Papadopoulos that Russia had Hillary Clinton emails.

You probably read reporting on Mifsud’s mid-2017 disappearance. If you haven’t, check out the detailed profile on this archived page and the University of Stirling’s student newspaper online. Read them while you can; our fellow contributor Jim White noted in January 2018 how Mifsud’s profile online was being scrubbed (indeed, the underlying source for the archived site above has an odd habit of going offline erratically).

What puzzles me after reading quite a lot about Mifsud: how did the London Academy of Diplomacy end up at Stirling — who suggested it, set up the curriculum, funded it?

Why does LAD look like a clone of DAL — the Diplomatic Academy of London — but located in Stirling instead of London?

And why Stirling, Scotland, located a mere 17 miles from Gleneagles Hotel, far away from the United Kingdom’s diplomatic action? Its population is around 36,000, it’s located inland away from an ocean port, and it doesn’t even have an airport.

Even smaller Gleneagles is an interesting location; the site is beautifully rural and easy to secure. It’s been used for a G8 meeting for this reason.

Mifsud is very little less of a mystery now than he was 18 months ago, but there’s more not quite right about Scotland when it comes to U.S. politics.

~ ~ ~

Why, for instance, did Steve Bannon show up at a “secret” meeting hosted by think tank Scotland International Ltd. (SIL) at Gleneagles in early December 2017? SIL was founded and funded by investment banker Sir Angus Grossart; the think tank hosts a “secret” meeting each year.

Bannon also met with former Ukip leader Nigel Farage and Tory MP Jacob Rees Mogg that same trip — both of whom are staunch Brexit supporters.

Scottish papers didn’t stint when labeling Bannon and his presentation; he was called “dangerous” and a “far right agitator” and his reception was described as chilly.

Bannon’s appearance at SIL also hasn’t aged well; his host Grossart received the Pushkin medal from Putin in October 2018, which didn’t agree with Scotland and the rest of the UK after the Skripals’ poisoning. Why does Bannon’s circle have so few degrees of separation from Russia and Putin, even in Scotland?

It may be the relationship between the so-called “economic nationalism” Bannon claims he espouses and Putin’s desire to destabilize the EU and NATO. Grossart is also the chairman of Charlotte Street Partners (CSP), a lobbying group which sought to disrupt education reform:

“… Proposals from the Scottish Government sought to expand democratic decision making in higher education, following previous conflict over departmental cuts and excessive salaries for top university officials.

While the proposals gained support from staff trade unions and student groups, universities management representatives criticised the plans and claimed that the bill threatens the charitable status of universities. …”

Why was there such invested effort in mucking up government and organized labor and student groups? CSP’s work looks like that of the U.S. right-wing think tank Mackinac Center for Public Policy, funded in part by the DeVos family. Mackinac Center has been intent on shaking out government funding to redirect to private charter schools (school choice), undermining collective bargaining power, while promoting hijacking teachers’ union retirement funds to private investment management.

Is Grossart looking to sink his chops into management of Scottish teachers’ pension funds if Scotland’s government is rattled by whatever happens after Brexit?

~ ~ ~

It was our illustrious Treasury Secretary Steve Mnuchin who first triggered my spider senses about Scotland, what with his sketchy request for a military plane for his vacation, including his honeymoon with Scottish actress Louise Linton during early August 2017. A subsequent investigation by the Office of the Inspector General for the Treasury Department indicates Mnuchin’s office requested the plane on August 1 for a trip beginning August 3, and that the request was withdrawn.

That trip and any others Mnuchin took using military planes should be the subject of a House Oversight Committee hearing if not House Armed Services Committee if they investigate military aircraft flying to airports or bases near Trump hotels or resorts.

What I want to know now, though:

— Did he conduct any U.S. Treasury business while on this August 2017 trip? If so,

— Did this trip take him to the airport closest to his in-laws’ digs near Edinburgh, Melville Castle?

— Or did Mnuchin’s trip in August 2017 fly into Glasgow Prestwick Airport near Trump’s Turnberry golf course, whether or not he flew on a military aircraft?

— Were any accommodations during this trip paid for by Mnuchin or were they charged to the U.S. government, and were those charges audited against any U.S. government business conducted during his trip?

Assuming he did U.S. government business I’d expect no less from Mnuchin’s expense reporting than I would at a Fortune 500 company — all government business fully documented and accounted for with receipts.

Mnuchin’s first trip requesting and using a military aircraft was in March 2017 for the G-20 event; the routing on the aircraft request was for London/Berlin/Baden-Baden. But did this military aircraft stop at Prestwick?

Was Mnuchin’s second flight using a military aircraft in May 2017 to Bari, Italy a direct flight from the U.S., or did it stop at Prestwick?

It’s odd that both trips were so close in total amount of aircraft time — 18.83 hours for the first trip, 19.66 hours for the second trip. Very odd.

Odder yet: for Mnuchin’s eighth trip using a military aircraft, this time to the Middle East in October 2017, there’s no reported total aircraft time in the memorandum from the Treasury’s OIG (pdf). The investigation into the previous seven flights was conducted before the Middle East trip.

How convenient.

~ ~ ~

Glasgow Prestwick Airport, of course, is the one that U.S. military planes have been stopping at for refueling while their crews and passengers stay at nearby pricey Trump golf resort, on the Department of Defense’s dime. Our dime.


If you follow the tweet above you’ll note someone determined the date of this Google Earth photo — June 17, 2018 — which means the U.S. military had been boosting Glasgow Prestwick Airport and possibly Trump Turnberry as well. The House is now looking into this.

When was the first U.S. military plane refueling visit to Prestwick, though? Was it August 2017?

No, it looks even earlier, and on Jim Mattis‘ watch as then-Secretary of Defense (note the date, description, and content on the photo at the top of this article). But this doesn’t answer whether Mnuchin’s borrowed planes also sponged off taxpayers to line Trump’s pockets.

We don’t know what other executive branch departments have borrowed military aircraft and/or stayed at Trump hotels and resorts yet, either.

There also doesn’t seem to be a good explanation for why U.S. government aircraft have increasingly stopped at Glasgow Prestwick Airport before Trump was inaugurated.

… The Air Force’s use of the Prestwick airport has also steadily grown. Indeed, the use of the facility has nearly tripled — and overnights in the area increased more than five-fold, the Air Force acknowledged Sunday.

From 2015 to 2019, they said, Air Mobility Command aircraft stopped at the civil airport 936 times. Of those, crews stayed overnight in the area 659 times.

The frequency of the stops and overnight stays has increased steadily each year, from 95 stops and 40 overnights in 2015; 145 and 75 in 2016; 180 and 116 in 2017; 257 and 208 in 2018; and 259 stops and 220 overnights through August 2019. …

This doesn’t help appearances whatsoever:

~ ~ ~

This post is a bit clunky because I’ve strung together bits and pieces accumulated for nearly 18 months.

But whatever is going on in Scotland is just as clunky and badly in need of sorting.

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Donald Trump Was “Colluding” with Roger Stone on Four Different Direct Lines

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The parties in the Roger Stone trial just released some pre-trial documents that include a stipulation for a bunch of emails and phone numbers that will be discussed at trial. (I’m not linking them because they’re not redacted.)

The big surprise — though I guess we should have expected this — is that Erik Prince is on there, which means he’s probably the Trump supporter eagerly awaiting the drop of John Podesta’s emails.

On or about October 3, 2016, STONE wrote to a supporter involved with the Trump Campaign, “Spoke to my friend in London last night. The payload is still coming.”

[snip]

Later that day, on or about October 4, 2016, the supporter involved with the Trump Campaign asked STONE via text message if he had “hear[d] anymore from London.” STONE replied, “Yes – want to talk on a secure line – got Whatsapp?” STONE subsequently told the supporter that more material would be released and that it would be damaging to the Clinton Campaign

But far more damning is that there are four Donald Trump phone numbers there, as well as numbers for his two assistants and his bodyguard, Keith Schiller.

Trump told Robert Mueller, under oath, that he didn’t remember being in the loop on Roger Stone’s efforts, clear lies.

Response to Question II, Part (e)

I was in Trump Tower in New York City on October 7, 2016.

I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the release of Mr. Podesta’s emails was reported by the media. Likewise, I have no recollection of being told that Roger Stone, anyone acting as an intermediary for Roger Stone, or anyone associated with my campaign had communicated with WikiLeaks on October 7, 2016.

Response to Question II, Part (f)

I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with any of the entities named in the question regarding the content or timing of release of hacked emails.

Response to Question ll, Part (g)

I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1.2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time.

Now we know that Trump spoke to Stone a lot. So much so it’s going to make clear all these claims are lies.

In the George Papadopoulos’ testimony to Congress, Mark Meadows defined “collusion” to mean “benefitting from Hillary Clinton emails.”

Mr. Papadopoulos. And after he was throwing these allegations at me, I —

Mr. Meadows. And by allegations, allegations that the Trump campaign was benefiting from Hillary Clinton emails?

Mr. Papadopoulos. Something along those lines, sir. And I think I pushed back and I told him, I don’t know what the hell you’re talking about. What you’re talking about is something along the lines of treason. I’m not involved. I don’t know anyone in the campaign who’s involved. And, you know, I really have nothing to do with Russia. That’s — something along those lines is how I think I responded to this person.

Mr. Meadows. So essentially at this point, he was suggesting that there was collusion and you pushed back very firmly is what it sounds like.

It turns out Donald Trump was “colluding” with Roger Stone on four different direct lines!

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Flynn Steps in It 2.0: Emmet Sullivan Will Make Sidney Powell Explain Why She Asked to Declassify Totally Irrelevant Secrets

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Back when Mike Flynn got cute in his sentencing memo, I warned that his false allegations about the circumstances of his investigation might backfire. It did. It led Judge Emmet Sullivan to order the release of his 302, showing how damning his lies were.

Flynn may have just done it again.

As I noted, in the joint status report submitted last week in the Mike Flynn case, his lawyers claimed they could not attend hearings on September 4, 5, 9, or 10, which were the dates the government suggested for a status conference.

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.

In response, Emmet Sullivan scheduled a status conference for September 10, a date Flynn’s lawyers had said they could not attend.

The fact that this hearing remains scheduled on September 10 may suggest Flynn’s lawyers were not telling the truth about their ability to attend a hearing on that date, in an attempt to forestall the status conference for 30 days as they had requested to do in the status report.

They were definitely lying about their ability to attend a hearing on September 5, because they did attend one, a sealed ex parte hearing before Sullivan where they discussed their demand that they all receive security clearances so they could review a bunch of evidence that doesn’t help their client.

As noted, in response, Judge Sullivan issued an order saying that before he’ll rule on whether they get security clearances, he will first rule on the Brady motion full of demands to see information that is not helpful to their client.

In response to Flynn’s motion that had basically said Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens, literally invoking the Senator whose prosecution has led Judge Sullivan to distrust government claims to have complied with discovery obligations 21 times, Sullivan instead said “Fawaz Yunis.”

Fawaz Yunis is one of the first terrorists the US prosecuted in the US. In preparation for his trial, he demanded a bunch of transcripts of conversations an informant had with him, some of which a judge later characterized as “trivia.” Nevertheless the judge ordered the government turn over those transcripts. The government appealed, which led to the DC Circuit decision governing the Classified Information Procedures Act in DC that the government cited in the status report.

A defendant and his/her cleared counsel in a criminal prosecution may only obtain access to classified U.S. government information when such classified material is deemed both “relevant” and “helpful to the defense.” See United States v. Yunis, 867 F.2d 617, 623-24 (D.C. Cir. 1989).

The DC Circuit reviewed the transcripts in question and reversed the District Court’s decision, finding that it had abused its discretion in the CIPA process by ordering the disclosure of the transcripts to the defendant.

[T]he District Court abused its discretion in ordering the disclosure of classified information to a defendant where the statements in question were no more than theoretically relevant and were not helpful to the presentation of the defense or essential to the fair resolution of the cause.

In reaching that decision, the Circuit also noted the importance of protecting sources and methods regarding,

the time, place, and nature of the government’s ability to intercept the conversations at all. Things that did not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation’s intelligence-gathering capabilities from what these documents revealed about sources and methods.

This is trouble for Flynn’s latest attempt to (as all the DC lawyers I know continue to joke) snatch defeat from the jaws of victory on his defense.

That’s true, first of all, for the one classified item that Flynn might make a sound argument he should be able to obtain: the transcripts of his calls with Sergey Kislyak. The Yunis decision is directly on point to whether a defendant can get transcripts made in the course of national security investigations, and the DC Circuit upheld the principle that the government’s interests in hiding (say, from Russia) details of how it collects on Russian diplomats can limit discovery to Flynn in the interests of protecting the ability to wiretap Russian diplomats in the future.

The best thing that can happen for Flynn is that Emmet Sullivan — who has already asked whether Mueller considered charging Flynn with treason — will review the transcript and see for himself how damning Flynn’s comments were (though, given that at sentencing Sullivan said he has reviewed a lot of classified information in this case, he may already have seen it). If Sullivan reviews the transcript and believes it does nothing but make Flynn look more guilty, then Flynn is not going to get the transcript, and Sullivan may grow even more appalled by Flynn’s conduct.

Then there are the Strzok-Page texts Flynn has demanded. If Sullivan has to review those, he’ll have a sense of what Peter Strzok was looking at to make him so concerned about Trump’s ties to Russia. He’ll also see that Strzok was pursuing a range of counterintelligence cases, not a single-minded “coup” against first candidate and then President Trump. He’ll even see how aggressively Strzok pursued the guy who leaked details about Carter Page’s FISA order. Any derogatory bits about Strzok from these texts have already been released publicly; anything additional Sullivan would see would be other counterintelligence cases or derogatory information about Flynn and his buddies.

Worse still are the other completely unrelated things Sidney Powell demanded in her “Brady motion.” Using public evidence, I was able to show most of the demands were crap. In one case, Powell demanded the declassification of a memo that shows National Security Advisor Mike Flynn oversaw the NSA slow-walking a response to FISA. In another, Powell made a false claim that, if true, would mean her client had broken the law for 30 years as an intelligence officer.

Now Powell is going to have to make the case that this stuff is relevant, which is going to be very difficult for her to do.

And Emmet Sullivan is happy to sanction any lawyers who play games in his courtroom, whether they’re prosecutors or defense attorneys or Fox pundits.

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Remember Roger the Rat-Fucker?

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I’d like to point to three data points on Roger Stone, who is scheduled to go on trial on November 5, 364 days before the 2020 Presidential election.

Andrew Miller will testify against his former boss

First, Natasha Bertrand reported yesterday that Andrew Miller — the Roger Stone aide who fought a grand jury subpoena for a year — has been called as a government witness in Stone’s trial.

Andrew Miller, a longtime aide to Stone, received a subpoena in early August to appear as a government witness, said Miller’s lawyer, Paul Kamenar. Kamenar said he was “puzzled” as to why prosecutors wanted Miller as a government witness — he said earlier this year that he did not think Miller would be called — but confirmed that Miller plans to comply.

The result is that one of Stone’s closest aides will be testifying about him at his trial in November for lying to Congress about his dealings with WikiLeaks during the 2016 election. He has pleaded not guilty.

Miller worked with Stone for over a decade, managing his schedule and travel. Miller accompanied Stone to the Republican National Convention in 2016, meaning he might have insight into Stone’s activity around this time.

It’s clear that Miller’s lawyer doesn’t understand how his client’s testimony helps the government’s case. But it’s worth considering that we still don’t know how Roger Stone was learning of WikiLeaks’ plans. WikiLeaks claims they never spoke to him directly until later in the process, and Jerome Corsi does not appear to learn anything until weeks later (and I don’t rule out Corsi learning some of it from Stone, not vice-versa).

But, at least according to Michael Cohen’s testimony (which he suspects was corroborated by other sources), Stone called Donald Trump on either July 18 or 19 and told the candidate that WikiLeaks was about to drop a massive dump of emails that would damage Hillary’s campaign.

As I earlier stated, Mr. Trump knew from Roger Stone in advance about the WikiLeaks drop of emails. In July 2016, days before the Democratic Convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speaker phone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange, and that Mr. Assange told Mr. Stone that within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign.

Mr. Trump responded by stating to the effect, Wouldn’t that be great.

[snip]

Ms. WASSERMAN SCHULTZ. Roger Stone says he never spoke with Mr. Trump about WikiLeaks. How can we corroborate what you are saying?

Mr. COHEN. I don’t know, but I suspect that the special counsel’s office and other government agencies have the information that you are seeking.

[snip]

Mr. COHEN. Yes. I’m sorry. I thought you were talking about a different set of documents that got dumped. So I was in Mr. Trump’s office. It was either July 18th or 19th. And, yes, he went ahead. I don’t know if the 35,000—or 30,000 emails was what he was referring to, but he certainly had knowledge.

Stone would have been calling from the RNC. It’s likely he learned about the emails not from Assange (he was just fluffing his value on that point), but someone whom he met with at the RNC — there has long been speculation this was Nigel Farage. Andrew Miller would be able to corroborate precisely who Stone was meeting before he called the candidate and gave him foreknowledge of the dump.

How Stone learned about WikiLeaks’ plans may be 404(b) information

Mind you, when and from whom Stone learned of WikiLeaks’ plans isn’t necessary to prove that he knowingly lied to the House Intelligence Committee in 2017.

But I suspect Miller’s subpoena comes after some sealed discussions in his case that started in June. On June 26, Judge Amy Berman Jackson permitted the government to file a 404(b) notice under seal as sealed docket item #139.

The Court grants the government’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [139-1] Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b).

Then, on July 9, ABJ permitted Stone to file the response, as sealed docket item #143 (with two exhibits) under seal.

The Court grants defendant’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [143-1] Defendant’s Response to Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b), [143-2] Exhibit A to the response, and [143-3] Exhibit B to the response.

On July 26, ABJ permitted the government to file, as sealed docket item #152 (with two exhibits) under seal as part of the motion in limine process deciding what will and will not be admitted.

The Clerk of Court is directed to file under seal [152-2] the Government’s Motion in Limine to Admit Two Newspaper Articles as Part of the Government’s Rule 404(b) Evidence, [152-3] Exhibit A, and [152-4] Exhibit B. Signed by Judge Amy Berman Jackson on 7/26/19.

There’s no sign of an order on 404(b) material (though there are other unexplained sealed docket items). But the fact that the government moved to pre-clear some newspaper articles as evidence under 404(b) may suggest ABJ has ruled.

Rule 404(b) governs whether or not you can introduce evidence that addresses character, other crimes, or other acts, beyond the scope of the indictment.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

It is often done to explain a defendant’s purported motive (as it was with Craig). So the government is seeking to provide other evidence of Stone’s rat-fuckery that is not, however, central to the charges against him, lying to Congress.

Which raises the question of what this 404(b) material might be and why it was submitted under seal. On the question of a seal, for comparison sake, the government sealed neither their request to submit evidence on Ukrainian procurement in Paul Manafort’s (aborted) trial under ABJ nor their request to submit evidence that Greg Craig was trying to curry favor with Manafort by hiring his daughter in the former White House’s (unsuccessful) prosecution under ABJ. Those weren’t hugely damning, sure, though the Craig detail was political damaging. Though this is obviously something more sensitive, either because the government still treats it as sensitive or because it would impair Stone’s ability to get a fair trial.

Details about how Stone learned of WikiLeaks’ plans would qualify as the former, and that’s something that Miller’s testimony is likely directly relevant to.

Details of how Stone kept candidate Trump informed of his plans at every step would qualify as the latter (and that’s a detail that is not spelled out in the indictment, even though it should have been).

Both would explain his motive to lie — whatever source he’s been hiding inside a nesting Matryoshka doll of lies constructed with Jerome Corsi, and the degree to which Donald Trump was pushing his rat-fucker to optimize the release of emails stolen by Russian military intelligence to help Trump get elected.

Aside from the detail that Miller’s accounting of Stone’s schedule at the RNC might explain who the source is, the rest of this is all speculative: these are possible answers, but just guesses.

Roger Stone’s birthday party for his freedom

Which brings us to the fundraising birthday card Stone sent out on August 27.

Sent by email and bitching about press coverage, especially the dig against CNN for covering his arrest live, the fundraiser risks falling afoul of ABJ’s gag again.

Nevertheless, Stone risks sanctions for violating the gag to remind his readers, one of whom — President Trump — he names twice, that his trial is quickly approaching. He reminds his readers of the cost he has already paid for not pleading guilty. He reassures his readers, including the named one, that he will not “testify falsely about anyone or anything,”

It’s unclear whether this is a demand for a pre-trial pardon (which would save Trump the embarrassment of the trial), or whether it’s an attempt to call Trump’s attention to his plight. But it’s little different from the messaging back and forth on pardons that Mueller laid out in his report.

Certainly Stone has seen something that makes him want to remind Trump of his oncoming trial.

 

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Matt Taibbi Attempts to Reinflate Patrick Byrne’s Maria Butina Story

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The buzz around Patrick Byrne’s story about having an affair with Maria Butina has almost entirely subsided.

In spite of the fact that folks have moved on, Matt Taibbi, claiming that he’s writing now because Byrne “is taking a beating in the press,” has decided to write up the story.

The tale is now out, and Byrne, whom I’ve known and liked for almost a decade, is taking a beating in the press. It’s unfortunate, and the import of his story is going unnoticed because reporters are focusing instead on Byrne’s eccentricities.

Taibbi reveals that, “Byrne came to me months ago,” which would mean Taibbi was, like Sara Carter, one of the journalists Byrne told about this during the summer, which makes a second journalist who had not covered the Butina prosecution to whom Byrne chose to make claims about the Butina prosecution.

Taibbi explains that he didn’t tell Byrne’s story earlier because he couldn’t confirm it. “Unable to confirm enough of his story, I ended up hesitating.” He also admits that Byrne’s, “hyperbolic storytelling needs to be sorted with care.”

So let’s look at how Taibbi “sorts with care” this story.

He gets one of Byrne’s hyperbolic storytelling references wrong, claiming Byrne used “Men in Black” to refer to the “senior federal law enforcement officials, who encouraged him to pursue a relationship with the Russian.” While Byrne has always said his reasons for using this term would become clear, they never are, but he does explain that the “Men in Black” are actually the line agents who — he’s sure — felt horrible about making the request for him to reengage Butina in July 2016.

I wish to emphasize this: the Men In Black are honorable men and women, and they were extremely discomfited by this request. There was no leering. They felt horrible. I think they wanted me to refuse it. They insisted that in their careers they heard never heard of such a request.

And Taibbi continues to struggle when he discusses counterintelligence.

Taibbi misuses the term “agent” (which in spying lingo is the person recruited, not the one doing the recruiting), while making a big show of not using it to refer to Butina, even though that’s the legal charge she pled guilty to. “(I’m not using the words ‘Russian agent’ because the term is misleading: Butina was not convicted of espionage).” He then calls the 18 USC 951 charge — with which Anna Chapman and Carter Page recruiter Victor Podobnyy were also charged with — a technicality.

However, the government never made an espionage case, charging her with an obscure technicality: acting as an unregistered foreign agent.

While we were discussing this on Twitter, Taibbi made a technicality argument Butina’s lawyers tried but failed to make during the prosecution, that this was just like a FARA violation.

Then Taibbi argues that the real scandal about this is that DOJ took ‘no real action … for nearly a year.”

Byrne’s claims would be explosive if true in the smallest part. For instance, the government asserted in Butina’s sentencing memorandum that her “actions had the potential to damage the national security of the United States.”

If Byrne told authorities about Butina in July, 2015, and no real action was taken for nearly a year, that would fly in the face of the government’s assertions at sentencing about the threat she posed.

Aside from how difficult counterintelligence investigations are and all the reporting that shows Obama didn’t respond aggressively enough to Russian efforts, Taibbi’s story explains what happened. And that’s that she tried to get close to a presidential candidate’s son, and all of a sudden her aggressive effort to get close to politicians began to look different, which is when FBI reportedly came back to Byrne and asked him to help gather more information.

Then there’s the documentary sources Taibbi relied on to carefully sort Byrne’s “hyperbolic storytelling:”

  1. The CNN and Fox coverage of Byrne
  2. An ABC report on the initial filing that suggested Butina was engaged in a utilitarian relationship with Paul Erickson that addresses both the claim the defense refuted and the one that the defense offered a far less convincing rebuttal of; it does not link the filing
  3. The CNN report saying that Robert Mueller interviewed Butina about JD Gordon
  4. Byrne’s father’s NYT obituary
  5. An SI report on Bison Dele’s murder
  6. A WSJ report on changes to short selling after 2008
  7. A link to the main FreedomFest site
  8. A Business Insider account of Trump’s speech at FreedomFest
  9. A link to the website for Butina’s gun rights organization
  10. A link to Rolling Stone’s coverage of Russia, generally
  11. A link to a subpage on CFR’s website
  12. A link to a NYT story that includes the picture of her posing with Don Jr
  13. A KY story of Butina’s NRA appearance from after she was arrested
  14. The government’s sentencing memo in Butina’s case
  15. A preview of Peter Strzok’s public congressional testimony that Taibbi claims also featured Lisa Page (Page testified privately in July 2018, but those transcripts were not released until March of this year, so if they changed Byrne’s mind about the investigation it raises interesting questions about who told him about her testimony)
  16. A report of a NYT report on the filing where prosecutors retracted one, but not the second, claim to substantiate Butina’s relationship with Paul Erickson was overblown (neither the report itself nor the NYT story link to the filing)
  17. A WaPo report on Judge Chutkan’s admonishment of prosecutors in a hearing where she nevertheless granted their motion to deny Butina bail; the story also described Chutkan criticizing Butina’s lawyers’ public characterizations about evidence
  18. A CO report on the offer to give Butina her own reality TV show
  19. A Newsweek report about a NYT story on Butina’s effort to get a jet fuel deal with an NRA official’s wife; Butina’s lawyer, Robert Driscoll, presumably has access to the emails the NYT story is based on, but appears not to have shared them with Taibbi
  20. A NYT Report on John Durham’s appointment to review how the Russian investigation (which Taibbi of course calls “Russiagate”) got opened
  21. A Market Watch report deeming Byrne’s story “one of his most bizarre statements yet”

21 links. That’s a lot! Except just one of them is to a filing from the case, and the three stories most critical to Taibbi’s points about Butina’s treatment by the press don’t link to court filings themselves, which takes some doing.

That’s utterly crucial, because Taibbi misunderstands how the question of Butina’s possible use of sex came up in the case (indeed, he miscites what the WaPo report on Chutkan said). It was not a document about her tradecraft. Rather, it was part of what prosecutors used to argue that her relationship with Paul Erickson was utilitarian and therefore she should be denied bail.

During the course of this investigation, the FBI has determined that Butina gained access through U.S. Person 1 to an extensive network of U.S. persons in positions to influence political activities in the United States. Butina, age 29, and U.S. Person 1, age 56, are believed to have cohabitated and been involved in a personal relationship during the course of Butina’s activities in the United States. But this relationship does not represent a strong tie to the United States because Butina appears to treat it as simply a necessary aspect of her activities. For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization. Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

The second allegation in that paragraph — that she bitched to a friend about living with Erickson — was not credibly refuted by her lawyers. In the followup filing that Taibbi references in a link claiming that Chutkan “threw out the sex charge,” prosecutors note that,

Even granting that the government’s understanding of this particular text conversation was mistaken, other communications and materials in the government’s possession (and produced to the defense) call into doubt the defendant’s claim that her relationship with U.S. Person 1 is a sufficiently strong tie to ensure her appearance in court to face the charges against her if she is released.

Given Byrne’s claims to have told the FBI about his relationship with her before all this, the reference to her using sex and prosecutors’ suggestion it may have happened more than once appears to be parallel construction to hide something the FBI otherwise believed (that she had initiated a sexual relationship with someone Torshin sent her to meet at a time she was supposedly romantically committed to Erickson), but the source of which they were trying to keep secret.

Especially if Byrne described that sexual relationship to the FBI like he described it in his own account, by loading his description of how they first slept together with insinuations about how spectacular she is.

A gentleman does not normally say, but it would be ridiculous to omit, given how germane it is: when I arrived, Maria made immediately clear that she had not been pretending. She had indeed watched my videos, and thought I was pretty cool. She, the Greater Moscow Powerlifting Champion (amateur) swept me and my liberalism off my feet. I was helpless, helpless I say….

Well, not really. About the “helpless” part, anyway. The rest is true. And I will say this: Maria is a spectacular woman. An unforgettable woman. So as to avoid returning to the subject, I will state once that every tryst with Maria she astonished me with her intellect, character, and intentions for the world. Great props to Mother Russia, for producing such a daughter.

To keep Church Ladies from hammering me on message boards, and because it is relevant: For Maria’s part, she sounded like there were some big-shot Republicans in her life in America she was seeing, she was back and forth to Russia, nothing was too serious, etc. I didn’t really pry.

Taibbi’s story replicates such insinuation, quoting Byrne describing Butina as having “one in a million” drive and ability in the same sentence addressing the two becoming intimate.

Later, Butina and Byrne made an arrangement to meet in New York. “We became intimate,” he says. Byrne says Butina impressed him as a being “one in a million” in terms of her drive and ability.

If you’re trying to convince people a woman is not a trained Red Sparrow, separate your comments about how spectacular she is from your descriptions of how she seduced you. And if you describe her this way, don’t be surprised if the government then goes on to make similar insinuations in court documents.

In other words, it may well be that the government made this claim because of what they knew about the timing and specifics of Byrne’s sexual relationship with Butina.

Taibbi seems to believe that people didn’t take this story more seriously because journalists covering it had to address Byrne’s eccentricities, just like he had to. What he utterly misunderstands — perhaps because he relied on thirdhand reports of the investigation rather than the source documents — is that Byrne’s story makes Butina’s far more damning.

I don’t doubt the main thrust of Byrne’s claim, that he had a serial affair with Butina and after it had ended the FBI asked him to resume contact. I do, however, know (because I did cover the Butina prosecution) that his story that Butina told him Aleksandr Torshin sent her to seek out Byrne confirms parts of the allegations against Butina. And Byrne’s story completely undermines two claims Butina made as part of her defense: that she had no idea she needed to register as a foreign agent (he warned her she did) and that she was truly in love with Paul Erickson.

There may be real questions about what Byrne’s relationship was and why the government didn’t disclose it to Butina’s lawyers. But any story about those questions should — as I do here — mention that Driscoll didn’t do two things (ask in writing and ask the government’s witness at sentencing, who likely also knew about Byrne) to pursue those questions either. It suggests he suspected he might not like the answers he would get.

Plus, there’s the question about why, if Byrne changed from believing there was a 2/3 chance she was a spy in July 2018 when she got arrested and referred in terms that may reflect what he told the FBI to believing she wasn’t, he didn’t do something about it then.

But Byrne’s story actually makes the government allegations against Butina stronger, not weaker and none of Taibbi’s “careful sorting” of Byrne’s “hyperbolic storytelling” changes that.

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Horowitz

What a Properly Scoped FISA Abuse Inspector General Report Would Look Like

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In this piece on the Jim Comey IG Report, I showed that Michael Horowitz’s department received evidence of two violations of DOJ rules. His office first received seven memos that documented that DOJ’s protocols to ensure the integrity of investigations had collapsed under Donald Trump’s efforts to influence investigations. And then, at some later time, his office learned that Comey had (improperly, according to the report) retained those memos even after being fired and that FBI had classified six words in the memos he retained retroactively.

Horowitz’s office has completed an investigation into an act that otherwise might be punished by termination that already happened. But there is zero evidence that Horowitz has conducted an investigation into the subject of the whistleblower complaint, the breakdown of DOJ’s protections against corruption.

In April 2018, Horowitz released a report (which had been hastily completed in February) detailing that Andrew McCabe had been behind a reactive media release during the 2016 election. But his office has not yet released its conclusions regarding the rampant leaks that McCabe was responding to. In other words, Horowitz seems to have once again released a report on a problem that — however urgent or not — has already been remedied, but not released a report on ongoing harm.

Horowitz is reportedly preparing to release a report on what the frothy right calls “FISA abuse.” but given the content of a Lindsey Graham letter calling for declassification of its underlying materials, it’s seems likely that that report, too, is scoped narrowly, focusing just on Carter Page (and any other Trump officials targeted under FISA). There’s no request for backup materials on the other investigation predicated off of hostile opposition research, the investigation into the Clinton Foundation.

I have long said that if Republicans think the FISA order into Carter Page was abusive, then they’re being remiss in their oversight of FISA generally, because whatever abuse happened with Page happens, in far more egregious fashion, on the FISA applications of other people targeted and prosecuted with them.

If Michael Horowitz is concerned that the information from paid informants is not properly vetted before being used as the basis for a FISA application, they would be better to focus on any number of terrorism defendants. Adel Daoud appears to have been targeted under FISA based off a referral — probably, like Christopher Steele, a paid consultant — claiming he said something in a forum that the government later stopped claiming; Daoud remains in prison right now after having been set up in an FBI sting.

If Michael Horowitz is concerned that the FBI is misusing press reports in FISA applications, they would be better to focus on the case against Keith Gartenlaub. The FBI based its FISA applications partly off a Wired article that was totally unrelated to anything Gartenlaub was involved with. Gartenlaub will forever be branded as a sex criminal because, after finding no evidence that he was a spy, the government found 10 year old child porn they had no evidence he had ever accessed.

If Michael Horowitz is concerned that information underlying a FISA application included errors — such as that there are no Russian consulates in Miami — he should probably review how Xiaoxing Xi got targeted under FISA because the FBI didn’t understand what normal scholarship about semiconductors involves. While DOJ dropped its prosecution of Xi once it became clear how badly they had screwed up, he was charged and arrested.

And if Michael Horowitz is concerned about FISA abuse, then he should examine why zero defendants have ever gotten able to review their applications, even though that was the intent of Congress. Both Daoud and Gartenlaub should have been able to review their files, but both were denied at the appellate level.

The point being, the eventual report on “FISA abuse” will not be about FISA abuse. It will, once again, be about the President’s grievances. It will, at least according to public reporting, not treat far more significant problems, including cases where the injury against the targets was far greater than it was for Carter Page.

I don’t believe Michael Horowitz believes he is serving as an instrument of the President’s grievances. But by scoping his work to include only the evidence that stems from the President’s grievances and leaving out matters that involve ongoing harm, that’s what he is doing.

Note: I have or had a legal relationship with attorneys involved in these cases, though not when writing the underlying posts.

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Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

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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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