Posts

Did Mike Flynn Gamble and Lose on Bill Barr and Michael Horowitz?

Since the beginning of Mike Flynn’s attempt to blow up his plea deal, he has been investing his hopes on two things: first, that Bill Barr’s efforts to discredit the investigation into Flynn and other Trump flunkies will find something of merit, and that Michael Horowitz’s Inspector General Report into the origins of the Russian investigation will likewise substantiate Flynn’s claims the investigation into him was a witch hunt.

Even before Covington & Burling had withdrawn from representing Flynn, Sidney Powell wrote Barr and Jeffrey Rosen making wild claims that Flynn had been illegally targeted. Both that letter and Flynn’s motion for what he purported was Brady material asked for FISA materials that actually related to FISA orders on Carter Page, as well as any Brady or Giglio material found in Barr and Horowitz’s investigations.

His reply tied the FISA Report directly to its claim that the government can’t be trusted to comply with Brady.

The Mueller Report established that there was no conspiracy between anyone in the Trump campaign and Russia. It is also apparent now, or will be upon the release of the FISA report of the Inspector General, that the FBI and DOJ had no legal basis to obtain a FISA warrant against Carter Page or to investigate Mr. Flynn. 13 Yet, the government wants us to accept its word that the defense has everything to which it is entitled. Fortunately Brady exists to protect the accused “from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.”

The entire effort to blow up his plea deal was a risky bet that either Barr and/or Horowitz would deliver some basis for Emmet Sullivan to throw out his prosecution.

Thus far, the only thing Barr’s worldwide wild goose chase has turned up are two phones once owned by Joseph Mifsud that the government quickly pointed out are totally unrelated to Flynn.

Yesterday, the government and Flynn asked Judge Sullivan to delay the briefing schedule that would have led up to a December 18 sentencing, a request Sullivan granted today. The request noted that both sides expect the IG Report to relate to Flynn’s case, even while DOJ pretends not to have inside information about when the report will be released.

Additionally, the parties note that the Department of Justice’s Office of the Inspector General (OIG) is conducting an Examination of the Department’s and the FBI’s Compliance with Legal Requirements and Policies in Applications Filed with the US. Foreign Intelligence Surveillance Court Relating to a certain US. Person. The parties expect that the report of this investigation will examine topics related to several matters raised by the defendant. As widely reported by the media, that report is expected to issue in the next several weeks.

Thus far, however, the public reporting on the IG Report suggests the report will not only not corroborate the claims Flynn wants it to, but affirmatively undermine some of his claims. For example, the NYT describes that the report attributes blame to low-level employees but not the senior figures — Jim Comey, Andrew McCabe, and Peter Strzok — that Flynn’s entire challenge focuses on.

A highly anticipated report by the Justice Department’s inspector general is expected to sharply criticize lower-level F.B.I. officials as well as bureau leaders involved in the early stages of the Trump-Russia investigation, but to absolve the top ranks of abusing their powers out of bias against President Trump, according to people briefed on a draft.

[snip]

In particular, while Mr. Horowitz criticizes F.B.I. leadership for its handling of the highly fraught Russia investigation in some ways, he made no finding of politically biased actions by top officials Mr. Trump has vilified like the former F.B.I. director James B. Comey; Andrew G. McCabe, the former deputy who temporarily ran the bureau after the president fired Mr. Comey in 2017; and Peter Strzok, a former top counterintelligence agent.

And Horowitz’s reported finding that DOJ and FBI did not coordinate very well (something backed by materials Flynn already has in his possession) undermines Flynn’s allegations that everyone who works at both FBI and DOJ was in cahoots against Trump and therefore Flynn.

[T]he bureau and the Justice Department displayed poor coordination during the investigation, they said.

Finally, the adverse findings Horowitz will lay out largely relate to the Carter Page FISA, which had very little bearing on Flynn.

Investigators for the inspector general, Michael E. Horowitz, uncovered errors and omissions in documents related to the wiretapping of a former Trump campaign adviser, Carter Page — including that a low-level lawyer, Kevin Clinesmith, altered an email that officials used to prepare to seek court approval to renew the wiretap, the people said.

[snip]

Mr. Horowitz’s investigators have suggested that he is likely to conclude that the filings exaggerated Mr. Steele’s track record in terms of the amount of value that the F.B.I. derived from information he supplied in previous investigations. The court filings in the Page wiretap application said his material was “used in criminal proceedings,” but it was never part of an affidavit, search warrant or courtroom evidence.

(Note, I believe the IG is wrong to base the value of Steele’s information on what shows up in affidavits, because this is precisely the kind of thing that would be parallel constructed out of affidavits, by design.)

And the report will specifically deny a key claim Flynn has made, that the investigation into him derives from Steele or the CIA.

None of the evidence used to open the investigation came from the C.I.A. or from a notorious dossier of claims about Trump-Russia ties compiled by Christopher Steele, a former British intelligence agent whose research was funded by Democrats, the report concludes, according to the people briefed on it.

In short, the report will be damning on some fronts. But not damning in a way that will be very useful for Flynn.

Which leaves him well over his skis at a time when Sullivan may be conducting a close review of how flimsy Powell’s claims really are.

Update: And even as I was posting this, the NYT reported that the report will also confirm that the FBI was not spying on Trump’s campaign.

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.

Sidney Powell Complains That Peter Strzok Is Too OCD to Investigate Her Client

Amid the new fecal matter that Mike Flynn lawyer Sidney Powell throws at Judge Emmet Sullivan in her sur-surreply purportedly asking for Brady material is a claim (ostensibly offered to support a claim that she’s entitled to his original notes even though she admits she has no proof to otherwise support her claim) that Peter Strzok was just too damned OCD to investigate her client.

Moreover, even a layman can look at the two sets of notes and discern that Strzok’s miniscule, printed, within-the-lines, longer, and more detailed notes bear none of the hallmarks of being written during the press of an interview—much less by the secondary note-taker. That observation is even more obvious when compared with Agent 2’s notes, which do appear to be contemporaneous.

That’s not the most ridiculous thing in this latest brief, but given all the other complaints launched against Strzok in the last two years, that he operates too much “within-the-lines” is a dizzying plot twist.

Sidney Powell rewrites all of criminal procedure

The most ridiculous thing Powell does is — before she gets off the first page! — argue that the government has an obligation to comply with Brady before accepting a guilty plea or, barring that, must provide all Brady the day after he pleads.

The government’s Surreply is new only in its stunning admissions and untenable paradoxes. According to the government, it had no obligation to produce its superfluity of Brady evidence before Mr. Flynn pleaded guilty— because he was not a defendant until he was formally charged. And, it had no obligation to produce its cache after he pleaded guilty (the same or next day)—well . . . because his guilty plea erased its obligation.

If accepted, the government’s approach would allow endless manipulation by prosecutors: target individuals, run search warrants, seize devices, interrogate for days, threaten family members, cajole, but never charge until the clock strikes midnight once a plea is extracted. Yet playing cat-and-mouse with the Due Process Clause is the opposite of what the Brady-Bagley-Giglio line of cases is all about. Perhaps even more significantly, the government’s position wholly ignores this Court’s Standing Order, which not only has no such timing requirements, but is issued for the precise purpose of eliminating the games the government played here.

Even the most favorable reading of Emmet Sullivan’s standing order (the original one of which wasn’t filed until 5 days after the case got transferred to Sullivan on December 7, and the operative one of which wasn’t filed until 71 days after the case transfer, with five more days after that before the protective order first permitting the sharing of such information was filed) wouldn’t hold that the government has to turn over all Brady material within two days of pleading guilty before a judge who doesn’t have such a standing order.

It sure as hell doesn’t say the government has to disclose warrants to people under investigation or even that the government can only seize phones if they charge someone. I mean, that might be a nice world (or it might be a criminal hellhole), but that’s not the world she practices law in.

Mike Flynn is entitled to a Mulligan because he replaced his competent lawyer with a TV lawyer

Of course, there are problems.

One of which is that Flynn got everything anything normally considered Brady before he pled guilty for a second time before Sullivan. Powell deals with that in two ways. First, she suggests that everything that Flynn did under his previous counsel is reset when she came in as new counsel.

Nor was there “an extraordinary reversal” pursuant to which Mr. Flynn claims he is innocent. At no time did new, conflict-free counsel affirm the validity of Mr. Flynn’s guilty plea. In that same letter, counsel explained that “as was ingrained in [Mr. Flynn] from childhood,” he “took responsibility for what the SCO said he did wrong.”

On top of all the other things she’s demanding for her client, she’s also asking for a Mulligan.

Powell accuses Emmet Sullivan of just joking when asking Flynn about conflicts

Central to her ability to do so, of course, is the claim that Rob Kelner — whom the government described twice reviewed the issue with Flynn and waived any conflict — could not have waived that conflict. What’s awkward about all this is that (as the government noted in their filing), even without notice Sullivan raised it at Flynn’s last guilty plea.

Yet, he fails to respond to the point made in Mr. Flynn’s Reply that this conflict existed only because the government insisted not only on incessantly attacking Flynn’s FARA registration (beginning within weeks of its filing), but also on demanding its pairing with the completely unrelated White House interview prosecution. Simultaneously, the government did not even advert to the primary argument that the conflict was non-consentable, which meant that even if former counsel had fully disclosed and explained the risks associated with the conflict, Flynn could not agree to waive it. The Covington & Burling lawyers could not remain in the case. Most important of all, the government did not move to disqualify the lawyers or bring the matter to the attention of any court.

She returns to this later, suggesting that Sullivan could not know that Kelner might have a conflict when he invited Flynn to consult with other attorneys.

Mr. Van Grack unilaterally eliminated the possibility that the Court would learn enough to investigate further. He was content to allow hopelessly-conflicted counsel not merely to walk Mr. Flynn into five days of interviews with the Special Counsel team, but into an immediate, high-pressured plea of guilty without any demands for or production of Brady material, facilitated the waiver of countless rights, and signed an agreement for endless years of cooperation with the government at extraordinary personal expense. In addition to those benefits, the government was able to turn Mr. Flynn’s own counsel into the equivalent of adverse witnesses against him in the Rafiekian FARA case in the Eastern District of Virginia.

Note, Powell encouraged Kelner to expand his cooperation during the Kian trial in a bid to help sabotage it.

And then Powell claims that Flynn — who raised precisely the other claims she raises here (about impropriety leading up to his interview) — could not have known there was a problem.

The normal plea colloquy was insufficient to alert this Court to the problem, and Mr. Flynn did not know what Mr. Flynn did not know. When Mr. Flynn was asked if he was satisfied with the representation he was receiving, he had no way of knowing of the depths of the conflict of interest, and he had no way of knowing that some conflicts of interest are non-consentable. The prosecutors were more than just aware of this issue, they took full advantage of it. Their failure to address the issue in their Surreply concedes the non-consentable conflict. This is precisely why the government is required to focus the court’s attention to the issue by moving to disqualify counsel and thus letting the Court—not the government in cahoots with uber-conflicted counsel— persuade a defendant that he is getting advice from a safe source.

Effectively this is an insinuation that Sullivan, who bent over backwards to give Flynn the opportunity to ask for counsel from another lawyer, was too stupid to understand the potential need for Flynn to do so. Who knows? It could work. But pretending the Judge didn’t do precisely what you think should happen is not a good way to impress the Judge.

Powell renews the claim that her client was tricked into telling the lies he had already told

Only after asking for a Mulligan does Powell get around to reiterating her argument that mean FBI Agents ambushed her 30-year Intelligence veteran client into telling the same lies he had already told others at the White House. In doing so, she simply ignores what the government has already told her, including that they did not use the Steele dossier (which barely mentions Flynn) as a “pretext” to ask him why he was undermining the policy of the government.

The government has known since prior to January 24, 2017, that it intended to target Mr. Flynn for federal prosecution. That is why the entire “investigation” of him was created at least as early as summer 2016 and pursued despite the absence of a legitimate basis. That is why Peter Strzok texted Lisa Page on January 10, 2017: “Sitting with Bill watching CNN. A TON more out. . . We’re discussing whether, now that this is out, we can use it as a pretext to go interview some people.” 3 The word “pretext” is key. Thinking he was communicating secretly only with his paramour before their illicit relationship and extreme bias were revealed to the world, Strzok let the cat out of the bag as to what the FBI was up to.

She then, bizarrely, provides proof that the FBI recognized right away that Flynn didn’t seem to be lying but his statements contradicted with everything that was on the transcript.

Former Deputy Director Andrew McCabe as much as admitted the FBI’s intent to set up Mr. Flynn on a criminal false statement charge from the get-go. On Dec. 19, 2017, McCabe told the House Intelligence Committee in sworn testimony: “[T]he conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview . . . the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” McCabe proceeded to admit to the Committee that “the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”

She then claims that when Brandon Van Grack said that nothing is in the government’s possession he instead said something else, then goes on to … I’m not sure what … without addressing the Van Grack point that the original agent notes match each other and every draft of the 302, meaning nothing in between would be different.

Tellingly, Mr. Van Grack does not deny that such information is, in fact, available.

The Strzok-Page text messages confirm that Lisa Page had two opportunities to edit drafts of the crucial 302. Strzok returned to his FBI office the night of February 10, 2017, to input the edits she made on the draft she had earlier left in Bill [Priestap’s] office (about which they hatch a cover-story), then sent her another version over the weekend. The government thus implicitly admits there was at least one version prior to the February 10 edition

(Note, with the last filing, the government provided three drafts of the 302, one of which was entered on January 24, meaning she already has this; she could mention that but it thoroughly undermines her own point.)

Finally, after making the claim that Strzok is too meticulous to investigate her client, she returns to a claim that I showed to be false, that the notes don’t support two of the false statements charges.

Read the notes of both agents for hours, and you won’t find a question or an answer about Kislyak’s response on either the UN vote or the sanctions—yet those assertions underpin the factual basis for the plea.

In about 30 minutes, however, one can find stuff in the notes that is consistent between the two and consistent with Flynn denying both cases.

Powell makes this harder to see, mind you, by doing a cut-and-paste job that splits notes on Flynn’s discussion of the UN calls. But it is there and in all the drafts.

Then she claims the redline, by adding a second denial from Flynn that he didn’t request Russia to act a certain way, somehow changes that it already included such a denial.

Previously, someone added an entire assertion untethered from either set of notes: “The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration.” Although absent from the notes of both agents, this “Russian response” underpins the alleged crime.10

The government shows what I do: that the claims are in every 302. Including this one.

As note, the evidence Powell presents actually supports the government. But at least she refrained from accusing her client of lying this time.

Powell says prosecutors should never pursue plea deals

Then Powell argues that stuff that (again) happen with many criminal defendants shouldn’t happen with her own, such as that they enter into proffers.

The letter sent by the Special Counsel to Mr. Flynn’s then-counsel, Covington & Burling, before the proffer interviews made clear that, “by receiving [Mr. Flynn’s] proffer, the government does not agree to make any motion on [his] behalf or to enter into a cooperation agreement, plea agreement, immunity agreement or non- prosecution agreement with Client.” Although the letter made a general promise not to use statements made in the interviews against Mr. Flynn, the promise included an important final clause: “Should Client be prosecuted, no statements made by Client during the meeting will be used against Client in the government’s case-in-chief at trial or for purposes of sentencing, except as provided below.” (emphasis added). The listed exceptions render the “promise” a practical nullity.

It is disingenuous to suggest that the proffer sessions were not adversarial when the government had permission to target Mr. Flynn, seized all his electronic devices, targeted his son, and seized his son’s devices. The government fails to mention that, to obtain the plea, it threatened Mr. Flynn with indictment the next day, the indictment of his son who had a new baby, promised him “the Manafort treatment,” and promised to pile on charges sufficient to put him in prison the rest of his life. The short fuse was no doubt motivated by the government’s knowledge, which it did not disclose to Flynn, that the salacious Strzok-Page emails, disclosing their vitriolic hatred of President Trump and his team, the key agents’ affair, and their termination from Mueller’s Special Counsel operation were going to be exposed the very next day. No individual, no matter how innocent, can withstand such pressure, particularly when represented by conflicted defense counsel. The advice a client is given by his lawyer in such fraught circumstances can make all the difference between standing his ground or caving to the immense pressure. Mr. Flynn caved, not because he is guilty, but because of the government’s failure to put its cards on the table, as Brady, requires, and its failure to ensure that Mr. Flynn was represented by un-conflicted counsel when he was forced to make that decision.

I mean, you sort of have to pick. Is your client a sophisticated intelligence officer with 30 years experience, or is he — represented by a very good lawyer — weaker than other similarly situated people? What Powell lays out, however, is not proof that he was treated differently, but actually proof he was treated the same, however shitty our prosecutorial practices are.

Powell admits she pulled a bait-and-switch but promises to return to it

Finally, there’s the matter of Powell’s bait-and-switch, her late demand to have the plea thrown out in the middle of a specious Brady request. As I noted, prosecutors were a little coy, suggesting that until she presents the demand as a lawyer would, with actual case law, they can only assume she’s arguing a Brady problem.

The most interesting (and potentially risky): even though Sullivan ordered them to address “the new relief, claims, arguments, and information” raised in Powell’s “reply,” they still treat this as primarily a question of Brady obligations. In addressing Powell’s demand to have the prosecution thrown out, they play dumb, noting that Powell has not presented her demand as a lawyer would, with citations and case law, and so then make an assumption that this is primarily about Brady.

In his Reply, the defendant also seeks a new category of relief, that “this Court . . . dismiss the entire prosecution for outrageous government misconduct.” Reply at 32; see also id. at 3 (“dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence . . . in a timely fashion or at all”). The defendant does not state under what federal or local rule he is seeking such relief, or cite to relevant case law.9 In order to provide a response, the government presumes, given the context in which this request for relief arose, that the defendant is seeking dismissal as a remedy or sanction for a purported failure to comply with Brady and/or this Court’s Standing Order.

9 Local Criminal Rule 47(a) specifically requires that “[e]ach motion shall include or be accompanied by a statement of the specific points of law and authority that support the motion, including where appropriate a concise statement of the facts” (emphasis added). The defendant now seeks relief from this Court for claims that he has not properly raised; the government is hampered in its ability to accurately respond to the defendant’s argument because he has failed to state the specific points of law and authority that support his motion.

I’m sure Powell’s response will be “Ted Stevens Ted Stevens Ted Stevens.” But even if it is, that’s something she could have cited in her new demand for relief and did not.

They do go on to address the claim that the FBI engaged in outrageous behavior, focusing relentlessly on the January 24 interview, rather than Powell’s more far-flung conspiracy theories. But ultimately, this seems to be an attempt to do what they tried to do when they first alerted Emmet Sullivan that Powell had raised new issues, to either force her to submit her demand to have the whole prosecution thrown out as a separate motion, or to substantiate her Brady claims.

When complaining that the government didn’t reply to her demand, she doesn’t address the fact that she hasn’t cited any law to support her.

As predicted, she instead cites Ted Stevens.

The government sought and received permission to file a Surreply by complaining that the defendant had bootlegged “new” arguments into his Reply. Yet its Surreply either elides the supposedly new material altogether or does not address it in terms.

[snip]

Rather, as a matter of procedure, counsel advised the Court that we anticipated seeking dismissal rather than withdrawal. Nothing we have found in the law requires a defendant to withdraw his guilty plea rather than seek dismissal for egregious government misconduct. Analogously, this Court did not have to grant a new trial to Ted Stevens before it could dismiss the entire prosecution in the interest of justice.

But it looks like the government gamble paid off. After bitching at the government for ignoring her bait-and-switch, at the very end of the brief, she says that she will formally ask for something she spent a good chunk of her last filing arguing for now and pretends that this is all just a Brady request.

In conclusion, yes, the government engaged in conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct. See United States v. Russell, 411 U.S. 423, 428 (1973). However, as fully briefed in our Motion to Compel and Reply, at this time, Mr. Flynn only requests an order compelling the government to produce the additional Brady evidence he has requested—in full and unredacted form—and an order to show cause why the government should not be held in contempt. At the appropriate time, Mr. Flynn will file a separate motion asking that the Court dismiss the prosecution for egregious government misconduct and in the interest of justice. Mr. Flynn is entitled to discovery of the materials he has requested in these motions and briefs that will help him support such a motion.

At some point, this bait-and-switch is bound to piss off Judge Sullivan, who now has to read two more briefs because of Powell’s little ploy. And I’m not sure invoking the ghost of Ted Stevens will be enough to mitigate any risk of pissing him off about this.

The Mueller Report Was Neither about Collusion Nor about Completed Investigation(s)

In the days since BuzzFeed released a bunch of backup files to the Mueller Report, multiple people have asserted these 302s are proof that Robert Mueller did an inadequate investigation, either by suggesting that the information we’re now seeing is incredibly damaging and so must have merited criminal charges or by claiming we’re seeing entirely new evidence.

I’ve had my own tactical complaints about the Mueller investigation (most notably, about how he managed Mike Flynn’s cooperation, but that might be remedied depending on how Emmet Sullivan treats Sidney Powell’s theatrics).  But I have yet to see a complaint that persuades me.

You never know what you can find in the Mueller Report if you read it

Let’s start with claims about how the release revealed details we didn’t previously know. Virtually all of these instead show that people haven’t read the Mueller Report attentively (though some don’t understand that two of the six interview reports we’ve got record someone lying to Mueller, and all are interviews of human beings with imperfect memories). Take this Will Bunch column, which claims that Rick Gates’ claims made in a muddled April 10, 2018 interview reveal information — that Trump ordered his subordinates to go find Hillary emails — we didn’t know.

Rick Gates, the veteran high-level political operative who served as Donald Trump’s deputy campaign manager in 2016, told investigators he remembers exactly where he was — aboard Trump’s campaign jet — when he heard the candidate’s desires and frustrations over a scheme to defeat Hillary Clinton with hacked, stolen emails boil over. And he also remembered the future president’s exact words that day in summer 2016.

Gates’ disclosure to investigators was a key insight into the state of mind of a campaign that was willing and eager to work with electronic thieves — even with powerful foreign adversaries like Russia, if need be — to win a presidential election. Yet that critical information wasn’t revealed in Mueller’s 440-page report that was supposed to tell the American public everything we needed to know about what the president knew and when he knew it, regarding Russia’s election hacking.

The passage in question comes from an interview where a redacted section reflecting questions about what Gates knew in May 2016 leads into a section on “Campaign Response to Hacked Emails.” What follows clearly reflects a confusion in Gates’ mind — and/or perhaps a conflation on the part of the campaign — between the emails Hillary deleted from her server and the emails stolen by Russia. The passage wanders between these topics:

  • People on the campaign embracing the Seth Rich conspiracy
  • Don Jr asking about the emails in “family meetings
  • The campaign looking for Clinton Foundation emails
  • Interest in the emails in April and May, before (per public reports) anyone but George Papadopoulos knew of the stolen emails
  • The June 9 meeting
  • Trump exhibiting “healthy skepticism” about some emails
  • The anticipation about emails after Assange said they’d be coming on June 12
  • The fact that the campaign first started coordinating with the RNC because they had details of upcoming dates
  • RNC’s media campaigns after the emails started coming out
  • Trump’s order to “Get the emails” and Flynn’s efforts to do so
  • Details of who had ties to Russia and the Konstantin Kilimnik claim that Ukraine might be behind the hack
  • China, Israel, Kyrgyzstan
  • Gates never heard about emails from Papadopoulos
  • Sean Hannity

This seems to be more Gates’ stream of consciousness about emails, generally, then a directed interview. But Gates’ claim that 1) he didn’t know about emails from Papadopoulos but nevertheless 2) was party to discussions about emails in April and May is only consistent with some of these comments pertaining to Hillary’s deleted emails.

Once you realize that, then you know where to look for the “Get the emails” evidence in the Mueller Report: in the description of Mike Flynn making extensive efforts to get emails — albeit those Hillary deleted.

After candidate Trump stated on July 27, 2016, that he hoped Russia would “find the 30,000 emails that are missing,” Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails.264 Michael Flynn-who would later serve as National Security Advisor in the Trump Administration- recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.265

264 Flynn 4/25/18 302, at 5-6; Flynn 5/1/18 302, at 1-3.

265 Flynn 5/1/18 302, at l-3.

The footnotes make it clear that in the weeks after Mueller’s team heard from Gates that Flynn used his contacts to search for emails, they interviewed Flynn several times about that effort, only to learn that that incredibly damning effort to find emails involved potentially working with Russian hackers to find the deleted emails. And to be clear: Bunch is not the only one confused about this detail–several straight news reports have not been clear about what that April 10 interview was, as well.

A November 5, 2016 email from Manafort — which the newly released documents show Bannon wanting to hide that Manafort remained a campaign advisor — is another thing that actually does show up in the Mueller Report, contrary to claims.

Later, in a November 5, 2016 email to Kushner entitled “Securing the Victory,” Manafort stated that he was “really feeling good about our prospects on Tuesday and focusing on preserving the victory,” and that he was concerned the Clinton Campaign would respond to a loss by “mov[ing] immediately to discredit the [Trump] victory and claim voter fraud and cyber-fraud, including the claim that the Russians have hacked into the voting machines and tampered with the results.”937

In other words, there is little to no evidence that the most damning claims (save, perhaps, the one that RNC knew of email release dates, though that may not be reliable) didn’t make the Report.

The Mueller Report is an incredibly dense description of the details Mueller could corroborate

The FOIAed documents are perhaps more useful for giving us a sense of how dense the Mueller Report is. They show how several pages of notes might end up in just a few paragraphs of the Mueller Report. The entirety of the three Gates’ interviews released Saturday, for example, show up in just four paragraphs in the Mueller Report: two in Volume I describing how the campaign made a media campaign around the leaks and how Trump once told him on the way to the airport that more emails were coming.

And two paragraphs in Volume II repeating the same information.

Worse still, because the government has released just six of the 302s that will be aired at the Roger Stone trial starting this week, much of what is in those interviews (undoubtedly referring to how Manafort and Gates coordinated with Stone) remains redacted under Stone’s gag order, in both the 302 reports and the Mueller Report itself.

Shocked — shocked!! — to find collusion at a Trump casino

Then there are people who read the 302s and were shocked that Mueller didn’t describe what the interviews show to be “collusion” as collusion, the mirror image of an error the denialists make (up to and including Bill Barr) in claiming that the Mueller Report did not find any collusion.

As I’ve pointed out since March 2017, this investigation was never about collusion. Mueller was tasked to report on what crimes he decided to charge or not, so there was never a possibility he was going to get into whether something was or was not collusion, because that would fall outside his mandate (and the law).

Worse still, in his summary of the investigation, Barr played a neat game where he measured “collusion” exclusively in terms of coordination by the campaign itself with Russia. It was clear from that moment — even before the redacted report came out — that he was understating how damning Mueller’s results would be, because Roger Stone’s indictment (and communications of his that got reported via various channels) made it crystal clear that he at least attempted to optimize the releases, but that involved coordination — deemed legal in part out of solid First Amendment concerns — with WikiLeaks, not Russia, and so therefore wouldn’t be covered by Barr’s narrow definition of “collusion.”

Of late, I’ve found it useful to use the definition of “collusion” Mark Meadows used in a George Papadopoulos hearing in 2018. In an exchange designed to show that in an interview where George Papadopoulos lied about his ongoing efforts to cozy up to Russia his denial that Papadopoulos, the coffee boy, knew about efforts to benefit from Hillary Clinton’s stolen emails, Meadows called that — optimizing the Clinton releases — “collusion.”

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. [my emphasis]

One of the President’s biggest apologists has stated that if the campaign did make efforts to optimize the releases, then they did, in fact, collude.

The Roger Stone trial, which starts Tuesday, will more than meet that measure. It astounds me how significantly the previews of Stone’s trials misunderstand how damning this trial will be. WaPo measures that Mueller failed to find anything in Roger Stone’s actions, which is not what even the indictment shows, much less the Mueller Report or filings submitted in the last six months.

The Stone indictment suggests that what prosecutors found instead was a failed conspiracy among conspiracy theorists, bookended by investigative dead ends and unanswered questions for the team of special counsel Robert S. Mueller III.

And MoJo hilariously suggests we might only now, in the trial, establish rock solid proof that Trump lied to Mueller, and doesn’t even account for how some of its own past reporting will be aired at the trial in ways that are far more damning than it imagines.

Here’s why I’m certain these outlets are underestimating how damning this trial will be.

Along with stipulating the phone and email addresses of Erik Prince and Steve Bannon (meaning communications with them could be entered into evidence even without their testimony, though Bannon has said he expects to testify), the government plans to present evidence pertaining to four direct lines to Trump and three to his gatekeepers.

One way prosecutors will use this is to show that, when Trump told Rick Gates that more emails were coming after getting off a call he got on the way to Laguardia, he did so after speaking directly to Roger Stone. They’ll also date exactly when a call that Michael Cohen witnessed happened, after which Trump said the DNC emails would be released in upcoming days got put through Rhona Graff.

It’s not so much that we’ll get proof that Trump lied to Mueller (and not just about what he said to Stone), though we will absolutely get that, but we’ll get proof that Trump was personally involved in what Mark Meadows considers “collusion.”

The Mueller Report and the ongoing criminal investigations

Both Mueller critics and denialists are also forgetting (and, in some cases, obstinately ignorant) about what the Mueller Report actually represented.

We don’t know why Mueller submitted his report when he did — though there is evidence, albeit not yet conclusive, that Barr assumed the position of Attorney General planning to shut the investigation down (indeed, he even has argued that once Mueller decided he could not indict Trump — which was true from the start, given the OLC memo prohibiting it — he should have shut the investigation down).

A lot has been made of the investigative referrals in the Mueller Report, of which just 2 (Cohen and Greg Craig) were unredacted. We’ve seen just one more of those thus far, the prosecution of George Nader for child porn, a prosecution that may lead Nader to grow more cooperative about other issues. Some of the (IMO) most revealing details in the weekend’s dump were b7ABC FOIA exemptions for materials relating to Alexander Nix and Michael Caputo. Normally, that redaction is used for upcoming criminal prosecutions, so it could be that Nix and Caputo will have a larger role in Stone’s trial than we know. But it also may mean that there is an ongoing investigation into one or both of them.

In addition, investigations of some sort into at least three of Trump’s aides appear to be ongoing.

It is a fact, for example, that DOJ refused to release the details of Paul Manafort’s lies — covering the kickback system via which he got paid, his efforts to implement the Ukraine plan pitched in his August 2, 2016 meeting, and efforts by another Trump flunkie to save the election in the weeks before he resigned — because those investigations remained ongoing in March. There’s abundant reason to think that the investigation into Lev Parnas and Igor Fruman and Rudy Giuliani, whether it was a referral from Mueller or not, is the continuation of the investigation into Manafort’s efforts to help Russia carve up Ukraine to its liking (indeed, the NYT has a piece on how Manafort played in Petro Poroshenko’s efforts to cultivate Trump today).

It is a fact that the investigation that we know of as the Mystery Appellant started in the DC US Attorney’s office and got moved back there (and as such might not even be counted as a referral). What we know of the challenge suggests a foreign country (not Russia) was using one of its corporations to pay off bribes of someone.

It is a fact that Robert Mueller testified under oath that the counterintelligence investigation into Mike Flynn was ongoing.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

That’s consistent with redaction decisions made both in the Mueller Report itself and as recently as last week.

It is a fact that when Roger Stone aide Andrew Miller testified, he did so before a non-Mueller grand jury. When Miller’s lawyer complained, Chief Judge Beryl Howell reviewed the subpoena and agreed that the government needed Miller’s testimony for either investigative subjects besides Stone or charges beyond those in his indictment. Indeed, one of the most interesting aspects of Mueller’s statement closing his investigation is the way it happened as Miller was finally agreeing to testify, effectively ensuring that it would happen under DC, not Muller.

Again, these are all facts. No matter how badly Glenn Greenwald desperately wants to — needs to — spin knowing actual facts about ongoing investigations as denial, it is instead basic familiarity with the public record (the kind of familiarity he has never bothered to acquire). At least as of earlier this year — or last week! — there has been reason to believe there are ongoing investigations into three of Trump’s closest advisors and several others who helped him get elected.

At least two of those investigations continue under grand juries, impaneled in March 2019, that Chief Judge Beryl Howell can extend beyond January 20, 2021.

Why Mueller closed up shop

Nevertheless, it is indeed the case that Mueller closed his investigation after producing a report that showed abundant obstruction by the President, but stated that his investigation “did not establish” that the Trump campaign engaged in coordination or conspiracy with Russia, including regarding a quid pro quo.

In particular, the investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future. Based on the available information, the investigation did not establish such coordination.

I’d like to end this post with speculation, one not often considered by those bitching about or claiming finality of the Mueller investigation.

In his closing press conference, Mueller emphasized two things: he saw his job as including “preserving evidence” against the President, and he noted that under existing DOJ guidelines, the President cannot be charged until after he has been impeached.

First, the opinion explicitly permits the investigation of a sitting President because it is important to preserve evidence while memories are fresh and documents are available. Among other things, that evidence could be used if there were co-conspirators who could now be charged.

And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.

In Mueller’s explanation of why he didn’t hold out for an interview with Trump, he said that he weighed the cost of fighting for years to get that interview versus the benefit of releasing a report  with “substantial quantity of information [allowing people] to draw relevant factual conclusions on intent and credibility” when he did.

Beginning in December 2017, this Office sought for more than a year to interview the President on topics relevant to both Russian-election interference and obstruction-of-justice. We advised counsel that the President was a ” subject” of the investigation under the definition of the Justice Manual-“a person whose conduct is within the scope of the grand jury’s investigation.” Justice Manual § 9-11.151 (2018). We also advised counsel that”[ a]n interview with the President is vital to our investigation” and that this Office had ” carefully considered the constitutional and other arguments raised by . .. counsel, and they d[id] not provide us with reason to forgo seeking an interview.” 1 We additionally stated that “it is in the interest of the Presidency and the public for an interview to take place” and offered “numerous accommodations to aid the President’s preparation and avoid surprise.”2 After extensive discussions with the Department of Justice about the Special Counsel’s objective of securing the President’s testimony, these accommodations included the submissions of written questions to the President on certain Russia-related topics. 3

[snip]

Recognizing that the President would not be interviewed voluntarily, we considered whether to issue a subpoena for his testimony. We viewed the written answers to be inadequate. But at that point, our investigation had made significant progress and had produced substantial evidence for our report. We thus weighed the costs of potentially lengthy constitutional litigation, with resulting delay in finishing our investigation, against the anticipated benefits for our investigation and report. As explained in Volume II, Section H.B., we determined that the substantial quantity of information we had obtained from other sources allowed us to draw relevant factual conclusions on intent and credibility, which are often inferred from circumstantial evidence and assessed without direct testimony from the subject of the investigation.

I take that to mean that Mueller decided to end the investigation to prevent Trump’s refusals to testify to delay the release of the report for two years.

In his testimony, Mueller agreed, after some very specific questioning from former cop Val Demings, that Trump was not truthful in his answers to Mueller.

DEMINGS: Director Mueller, isn’t it fair to say that the president’s written answers were not only inadequate and incomplete because he didn’t answer many of your questions, but where he did his answers show that he wasn’t always being truthful.

MUELLER: There — I would say generally.

She laid out what I have — that Trump refused to correct his lies about Trump Tower Moscow, as well as that he obviously lied about his coordination on WikiLeaks. So lies are one of the things the Mueller Report documents for anyone who reads it attentively.

But Trump’s obstruction extends beyond his lies. His obstruction, as described in the Report, included attempts to bribe several different witnesses with pardons, including at minimum Manafort, Flynn, Cohen, and Stone (those aren’t the only witnesses and co-conspirators the evidence shows Mueller believes Trump bribed with promises of pardons, but I’ll leave it there for now).

So here’s what I think Mueller did. I suspect he ended his investigation when he did because he was unable to get any further so long as Trump continued to obstruct the investigation with promises of pardons. So long as Trump remains President, key details about what are egregious efforts to cheat to win will remain hidden. The ongoing investigations — into Manafort and Stone, at a minimum, but possibly into others up to and including the President’s son — cannot go further so long as any prosecutorial effort can be reversed with a pardon.

That said, some of those details will be revealed for the first time starting this week, in the Stone trial. And, if the Parnas and Fruman influence operation is, indeed, related to Manafort’s own, then Trump’s personal criminal involvement in that influence operation is being revealed as part of a parallel impeachment inquiry.

Which is to say that I suspect Mueller got out of the way to allow investigations that cannot be fully prosecuted so long as Trump remains President to continue, even as Congress starts to do its job under the Constitution. And Congress has finally started doing so.

On the Classification Disputes over Mike Flynn’s Discovery

Over the last week, I have laid out how Mike Flynn’s TV lawyer, Sidney Powell, used what was nominally a reply brief in her Brady demand to make a new request that the entire prosecution against Flynn be thrown out. I showed how her argument misrepresented the evidence she used to make it — at one point, she even accused her own client of lying in his initial FBI interview! Nevertheless, Powell succeeded at least far enough to get Sullivan to order the government to respond to her entirely new demand, a sign he may be sympathetic to her gaslighting.

But I’d like to go back and consider the declassification process that got us to this point.

Flynn’s reply was due on October 22, a week ago Tuesday. Starting on Saturday, October 19, Flynn’s team tried to get DOJ to approve its use of the materials it had received under the protective order — 302s involving Peter Strzok and Lisa Page, Strzok and Joe Pientka’s notes from the initial interview, some of the Strzok-Page texts, and a redline of the 302 from February 10.  That exchange looked like this:

October 19, 3:54PM: Powell writes AUSA Jocelyn Ballantine cc’ing other lawyers, stating she plans to include quotes from the protected materials, including from “the various 302s of the 24th, [redacted], [Page’s] 302, and the agents [sic] notes,” stating they may file without sealing the reply or exhibits.

October 20, 1:36PM: Brandon Van Grack response, stating they need to ask “equity holders, in particular the FBI,” and offering to start reviewing quotes before the reply is finished.

October 20, 1:49PM Flynn attorney Molly McCann replies and asks Van Grack to “begin the process to clear the full documents,” including the 302s, the documents whose description is redacted, [Page]’s 302, and the agents’ notes.”

October 22, 12:00PM: Flynn files his reply under seal.

October 22, 12:45PM: Molly McCann writes Van Grack and others, attaching “our proposed redactions,” based off “the redactions [the government] made in the original Motion to Compel. McCann stated that, “until you can complete your review process we would expect to keep the exhibits under seal.”

October 22, 3:34: Van Grack replies, stating that “we have circulated the motion, and your proposed edits, to the appropriate entities,” noting that “we will need to request redactions beyond what you propose.”

October 23, 10:33AM: Powell writes Van Grack, advising him that “if we have not received your proposed redactions as to the Reply brief by 1 p.m. today, we will be filing a motion with the court.”

October 23, 10:39AM: Ballantine writes Powell, stating that “there is information in your filing beyond that which you flagged for us on Sunday,” adding, “there is one sensitive matter that is unlikely to be resolved before the end of the day.”

October 23, 11:10AM: Powell responded, “without a proposed redacted version from you that can be unsealed today or an assurance it will be resolved today, we will be seeking relief from the court by 5 p.m.

October 23, 7:17PM: Flynn’s team submits a motion to file their proposed brief.

October 24, 10:23PM: Flynn’s team submits motion for leave to file, along with their “reply,” based on adopting the government’s redactions.

Effectively, Powell got fed up waiting for FBI to decide what could and could not show up in her reply, and pushed to publish a public copy. Sure, she was insistent on filing as much of this in unredacted form as she could so she could feed the frothy right with her brief (which she effectively admits in her October 23 filing). But that is entirely her right. I’m totally sympathetic with her demand that she be allowed to file this in timely fashion (though I imagine the government would suggest they should have started the declassification process more than three days in advance).

This is one issue I’m absolutely supportive of Powell’s aggressiveness.

But, particularly given the timing, I’m interested in the substance of the dispute. I’m interested for several reasons. Powell’s entire representation of Flynn went through Bill Barr. She clearly has gotten information about the Durham investigation stovepiped to her, most recently in the form of totally irrelevant (to Flynn) information about the government obtaining Joseph Mifsud’s phones. And she made claims about what she believed she knew should and should not be redacted.

Just as interesting, on the morning of October 23, Jocelyn Ballentine said one “sensitive matter” was unlikely to get resolved that day. On October 24, the NYT and other outlets first started reporting that Durham’s inquiry had become a criminal investigation. Certainly, there could be other issues that might be that sensitive issue (including decisions about indicting Andrew McCabe). But the redactions on some of these exhibits certainly might be implicated by a Durham investigation, depending on the scope of it.

Let’s work backwards. First, of the 16 exhibits submitted with her reply, just eight came from the government and so were subject to the protective order (this post has more extensive discussions of what these are):

2) Page-Strzok texts*

3) Comey memos

5) Strzok 302 responding to propaganda Sara Carter and John Solomon “reported”*

6) Previously released Strzok 302 on his own role in the investigation*

9) Joe Pientka notes from the interview

10) Strzok notes of the interview

11) Redline of edits made to 302 on February 10*

12) Lisa Page 302 on texts with Strzok regarding the interview with Flynn*

In the exhibit showing the conversation about declassification, the existence of the Sara Carter-related 302 and the Page 302 were redacted entirely. All the exhibits were cleared for release in some fashion, though I’ll get back to what remains redacted.

In Powell’s filing asking Sullivan to intervene, she said, “The only exhibits to the Reply for which the defense knows of any reason to remain under seal are 5, 6, 9, 10, 11, and 12.” In her motion to file the reply brief, she said, “The government … proposed redactions to five of the exhibits Mr. Flynn included in his filing—Exhibits 2, 5, 6, 11, and 12,” meaning the texts included stuff she didn’t know should still be redacted. I’ve marked the exhibits the government added redactions to above.

The redactions of the redline must be — in addition to names — redactions of information that would reveal how FBI works. Among other things, it likely includes codes the agents use to track them, because DOJ screwed up who made the two changes to the redline (as I note here, they say Strzok didn’t remember something that Pientka added, but it must be the reverse given their notes).

Similarly, the only thing redacted in the Page 302 is names and organizational stuff. That would suggest that nothing in the Page 302 implicates ongoing investigations (including, but not limited to, Durham).

It’s hard to tell what got redacted in the texts. Clearly, something that the government released to Flynn was deemed too sensitive to release. But there were already two sets of redactions in the texts — the gray ones (possibly for privacy reasons) and some black ones that redact genuinely sensitive material. One of those things, for example, is the name of the person Strzok and Page were worried about locking in on May 10, 2017, which Flynn (and the rest of the frothy right) believed incorrectly to be him. But there are other things — such as a October 19, 2016 and another January 23, 2017 text — that might have been released to Flynn but cannot be released publicly. Or, it’s possible FBI just redacted the phone numbers.

Most intriguing is the Sara Carter related 302. There are two redactions, one introductory and one referring to the third allegation Carter was chasing, that after Flynn resigned, people high fived and said, “we got him.” Powell apparently knows why it was redacted. But I had heard, in reporting something else, that this was considered a hoax targeted at McCabe. If the redaction reflected badly on McCabe, Powell would be sure to include it in her filing, which she doesn’t. One possible explanation is that DOJ is still trying to chase down where this disinformation got spread (consistent with the fact that DOJ IG still hasn’t released its report on who was behind the NY Field Office leaks, in part because there were too many to pinpoint).

Finally, there’s the 302 memorializing Strzok’s role in the initiation of the investigation. It has the same redactions (and appears to be the same version) of the 302 released in June, in the wake of the Mueller Report. At the time, the government said those were deliberative privilege and personal privacy redactions — meaning most of what remains redacted consists of discussions of investigative choices.

The government continues to redact DIA stuff on Flynn’s trips to Russia

Except that last point — about the 302 memorializing Strzok’s role in initiating the investigation — might have changed.

Note that the government told Flynn’s team there were things in their actual brief that needed redaction. Aside from names, two things are redacted. First, a footnote modifying Powell’s otherwise unsubstantiated claim that the FBI knew they had no basis to investigate Flynn, which cites to the 302 on Strzok’s role in opening the investigation.

This must be something genuinely investigative, or Powell would have contested it on releasing the motion. Remember that at the time, Flynn was under investigation for being an Agent of Russia. Perhaps significantly, in the government’s Surreply, they get really vague when addressing the multiple bases for interviewing Flynn.

The defendant also now argues that the information he seeks will prove that the “FBI had no factual or legal basis for a criminal investigation.” Reply at 14-16. In support, the defendant cites to the standard necessary to obtain a warrant pursuant to the Foreign Intelligence Surveillance Act (”FISA”). See Reply at 14, n.11. Obtaining a FISA warrant, however, is entirely different from the FBI interviewing an individual as part of an ongoing counterintelligence investigation. Here, there were multiple bases for the FBI to interview the defendant. The defendant’s false statements publicly attributed to him by White House officials about his communications with Russia were alone a sufficient and appropriate basis for conducting the investigative step of interviewing the defendant.

Don’t get me wrong, they’re right that Powell is speciously arguing that the government needs probable cause showing someone is an Agent of a Foreign Power (the FISA standard) before they interview someone — it’s a point I made in bullet 9 here. But the Flynn camp has always tried to limit the reasons why the FBI interviewed Flynn (not least so they could claim it was an improper investigation into policy). There’s likely a whole lot of baggage to these redactions.

A more interesting redaction comes in a passage that invents out of thin air a claim that Chuck Grassley had seen files regarding briefings Flynn did before he went to Russia and deemed them exculpatory. In it, the government redacted a sentence about those briefings.

Probably, this stuff comes from DIA material shared with Flynn in August (after it was handed to Grassley). The government, in its response to Powell’s initial motion, said some of what Flynn told the DIA was inculpatory.

Request #15: The government is not aware of any information in possession of the Defense Intelligence Agency that is favorable and material to sentencing, including the information that the government provided on August 16, 2019. Specifically, the information of which the government is aware, including that August 16 production, is either inculpatory or has no relevance to the defendant’s false statements to the FBI on January 24, 2017, or to the FARA Unit.

Which makes it interesting, first, that Powell isn’t trying to represent the content of these supposedly inculpatory DIA files, and second, that DOJ continues to hide it.

There seem to be two tensions going on behind all this discovery. First, the possible referral of people involved in his prosecution (but apparently not Lisa Page) to Durham. But just as interesting, given ongoing redactions regarding Flynn’s ties to Russia, inculpatory information about his own ties to Russia.

The Government Reminds Emmet Sullivan that Mike Flynn Already Agreed His Current Complaints Don’t Change His Guilt

The government used an interesting strategy in responding to Sidney Powell’s nominal “reply” brief demanding Brady information but actually asking to have the entire prosecution thrown out.

The most interesting (and potentially risky): even though Sullivan ordered them to address “the new relief, claims, arguments, and information” raised in Powell’s “reply,” they still treat this as primarily a question of Brady obligations. In addressing Powell’s demand to have the prosecution thrown out, they play dumb, noting that Powell has not presented her demand as a lawyer would, with citations and case law, and so then make an assumption that this is primarily about Brady.

In his Reply, the defendant also seeks a new category of relief, that “this Court . . . dismiss the entire prosecution for outrageous government misconduct.” Reply at 32; see also id. at 3 (“dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence . . . in a timely fashion or at all”). The defendant does not state under what federal or local rule he is seeking such relief, or cite to relevant case law.9 In order to provide a response, the government presumes, given the context in which this request for relief arose, that the defendant is seeking dismissal as a remedy or sanction for a purported failure to comply with Brady and/or this Court’s Standing Order.

9 Local Criminal Rule 47(a) specifically requires that “[e]ach motion shall include or be accompanied by a statement of the specific points of law and authority that support the motion, including where appropriate a concise statement of the facts” (emphasis added). The defendant now seeks relief from this Court for claims that he has not properly raised; the government is hampered in its ability to accurately respond to the defendant’s argument because he has failed to state the specific points of law and authority that support his motion.

I’m sure Powell’s response will be “Ted Stevens Ted Stevens Ted Stevens.” But even if it is, that’s something she could have cited in her new demand for relief and did not.

They do go on to address the claim that the FBI engaged in outrageous behavior, focusing relentlessly on the January 24 interview, rather than Powell’s more far-flung conspiracy theories. But ultimately, this seems to be an attempt to do what they tried to do when they first alerted Emmet Sullivan that Powell had raised new issues, to either force her to submit her demand to have the whole prosecution thrown out as a separate motion, or to substantiate her Brady claims.

The government then lays out, for the second time, that the government already provided Brady by the time Flynn pled guilty a second time, this time before Judge Sullivan, on December 18, 2018.

Although the defendant now complains about the pace of that discovery, before December 18, 2018, the defendant was in possession of all of the information on which he now bases his argument that the case should be dismissed due to government misconduct. See Reply [sic] at 1-2, 16, 26; Notice of Discovery Correspondence, United States v. Flynn, 17-cr-232 (D.D.C. Oct. 1, 2019) (Doc. 123). Thereafter, on December 18, 2018, the defendant and his counsel affirmed for this Court that they had no concerns that potential Brady material or other relevant material had not been provided to the defendant. See Hearing Transcript at 8-10, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 18, 2018) (“12/18/2018 Hearing Tr.”). The defendant further affirmed, under oath, that he wished to proceed to sentencing because he was guilty of making false statements to the FBI. See id. at 16.

Note, there’s an error in this passage, calling their past filing a “Reply” rather than Response. They should have relied on the Reply — on Powell’s own documents — to show that even her own less-detailed timeline of discovery proves that the government provided everything save some DIA files dating from well before Flynn’s lies before his aborted sentencing before Judge Sullivan.

Which leads us to the tactic that should rule the day. In both that reference to complying with Brady, and in three other places, the government reminds Emmit Sullivan that Flynn had all this information last year, when Sullivan put Flynn under oath, made him plea again, and made damn sure none of these things changed his guilty plea.

They do this, for example, regarding the derogatory information about Strzok.

The defendant also places significant weight on DAD Strzok’s remark that the defendant had “a very ‘sure’ demeanor and did not give any indicators of deception.” Strzok 302 at 3. Without citation or explanation, the defendant intimates that such words were edited out of an earlier draft of the interview report. See Reply at 24. There is no evidence that that occurred, or that the government attempted to suppress those statements. It informed the defendant of the assessment before the defendant signed the plea agreement and pleaded guilty, and documented DAD Strzok’s assessment in a separate interview of DAD Strzok (which it provided to the defendant in discovery). Moreover, DAD Strzok’s assessment does not exonerate the defendant. There is ample public evidence that the defendant also convincingly lied to other government officials about his conversations with the Russian Ambassador.

Then, after laying out how they had affirmatively asked Kelner and Flynn if the former had a conflict arising from having written Flynn’s FARA filing, they remind Sullivan that he himself offered Flynn an opportunity to consult with independent counsel to make sure he had been adequately represented by Kelner last year.

Additionally, during the scheduled sentencing hearing on December 18, 2018, the defendant declined the Court’s invitation to have the Court appoint “an independent attorney to speak with [the] defendant, review the defendant’s file, and conduct necessary research to render a second opinion for [the] defendant.” 12/18/2018 Hearing Tr. at 9.

Finally, after refuting (such as they do) Powell’s claim of abuse, they remind Sullivan that Flynn knew everything she makes a stink about when he pled guilty before Sullivan.

For all of the above reasons, it is no surprise that with the same set of facts, the defendant and his prior counsel previously represented to this Court that the circumstances of the interview had no impact on his guilt, or guilty plea. On December 18, 2018, when the Court asked the defendant if he wished to “challenge the circumstances on which you were interviewed by the FBI,” he responded, under oath, “No, Your Honor.” 12/18/2018 Hearing Tr. at 8.10 The Court then asked the defendant if he understood that “by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstances under which you were interviewed,” to which the defendant answered, “Yes, Your Honor.” Id. And when the Court queried whether the defendant wanted an opportunity to withdraw his plea because one of the interviewing agents had been investigated for misconduct, the defendant stated “I do not, Your Honor.” Id. at 9. His counsel likewise represented to the Court that their client was not “entrapped by the FBI,” and that they did not contend “any misconduct by a member of the FBI raises any degree of doubt that Mr. Flynn intentionally lied to the FBI.” Id. at 11-12.

Sullivan wisely put Flynn under oath last year and gave him an opportunity to back out of his plea. Unless he can be convinced there’s anything new — and while it’s shiny gaslighting, Powell’s evidence doesn’t back that claim — then he’s obliged to hold Flynn to his plea from last year.

Or, as the government suggests, Sullivan can send this thing to trial.

The baseline remedy for a Brady violation in this district is retrial, not dismissal. United States v. Pettiford, 627 F.3d 1223, 1228 (D.C. Cir. 2010) (“If we find a Brady violation, a new trial follows as the prescribed remedy, not as a matter of discretion.”)

I’ve said before and will repeat it here, it’s a fools errand to try to predict Judge Sullivan. If this ploy is going to work for anyone, it might work for Sullivan.

But Judge Sullivan’s own actions may well prevent that.

There are, to be sure, interesting details in this filing. It reveals more details about what happened when Flynn was proffering in advance of a plea deal. It explains that the timing of his January 24 interview was tied not to the release of the Steele dossier, as he alleged, but to Sean Spicer’s repetition of his denials on January 23 (something that’s consistent with Andrew McCabe’s memo on the topic). It debunks a long-standing conspiracy theory — that Lisa Page and Peter Strzok said they had to lock in Mike Flynn in a chargeable way the day Comey was fired. It reveals that the government raised — and Flynn twice waived — any concerns that Rob Kelner had a conflict tied to his role in Flynn’s FARA filing.

But mostly, this filing lays out all the way that Flynn already said, under oath and to Judge Sullivan, that these issues didn’t matter.

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.

Emmet Sullivan Just Learning of Sidney Powell’s Bait-and-Switch

As I noted the other day, the filing Sidney Powell submitted last week, while called a “reply” to the government’s response, was instead a brand new argument that her client should have his entire conviction thrown out, complete with brand new bullshit claims.

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

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

Judge Emmet Sullivan may not have started reading it yet — or maybe he was just impressed with the gaslighting — because yesterday he canceled the November 7 hearing where everyone was going to have an intriguing argument about whether his standing Brady order includes Giglio information impeaching government witnesses like Peter Strzok.

MINUTE ORDER as to MICHAEL T. FLYNN. In view of the parties’ comprehensive briefing concerning 109 Defendant’s Motion to Compel Production of Brady Material, the Court cancels the motion hearing previously scheduled for November 7, 2019. Signed by Judge Emmet G. Sullivan on 10/28/2019.

The government, unsurprisingly, did not miss what I laid out. They responded to Sullivan’s order noting that Flynn’s reply wasn’t a reply, but an entire new request to have his conviction thrown out.

This “Reply,” however, seeks new relief and makes new claims, based on new arguments and new information. In an extraordinary reversal, the defendant now claims that he is innocent of the criminal charge in this case. See, e.g., Reply at 2 (“When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime . . . .”). For the first time, the defendant represents to this Court that he “was honest with the agents [on January 24, 2017] to the best of his recollection at the time.” Reply at 23. He makes this claim despite having admitted his guilt, under oath, before two federal judges (including this Court). The defendant also argues—based almost entirely on evidence previously provided in discovery—that the government engaged in “conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges [sic] for outrageous government conduct.” Reply at 2. The Reply then seeks a new category of relief, that “this Court . . . dismiss the entire prosecution for outrageous government misconduct.”1 Reply at 32.

They went on to note just some of the new requests and claims Flynn made.

To the extent the defendant refers to potential Brady material, the subject of the original motion, he raises numerous arguments and claims for the first time in his Reply. For example, he asserts, inter alia, that the government had an obligation to provide Brady material to him prior to charging him in a criminal case (Reply at 4, 18-20); that the government suppressed the “original 302” of his January 24, 2017 interview with the Federal Bureau of Investigation (“January 24 interview”) (Reply at 23-24); that the government fabricated certain January 24 interview notes and reports documenting his false statements (Reply at 23-24); that the government suppressed text messages that “would have made a material difference” to the defendant (Reply at 6); that the defendant’s false statements were not material (Reply at 27-28); that the defendant’s attorneys were acting under an “intractable conflict of interest,” which the government exploited to extract a guilty plea (Reply at 17-18); and that the “FBI had no factual or legal basis for a criminal investigation” (Reply at 14-16). Each new argument or claim is unsupported by fact or law.

At the end, they made it clear what Sullivan’s obvious response to such a filing should be: an order that Powell submit her request for new relief — that Flynn have his conviction thrown out — as a separate motion or that he simply ignore all of Powell’s new BS.

In light of this minute order, it may be that the Court intends to strike any arguments or claims raised for the first time by the defendant in his Reply. And it may be that the Court plans to require the defendant to raise any new claims for relief in a properly pled motion to which the government can respond fully.

Sullivan responded by agreeing to let the government file a surreply, with Flynn granted a response (though warned, this time, not to introduce any new arguments).

MINUTE ORDER as to MICHAEL T. FLYNN. In view of [131] Government’s Notice of Claims Raised for the First Time in Reply, the government is hereby DIRECTED to file a surreply by no later than 12:00 PM on November 1, 2019. The surreply shall address the new relief, claims, arguments, and information raised in Defendant’s Reply Brief, ECF No. [129-2]. Mr. Flynn is hereby DIRECTED to file a sur-surreply by no later than 12:00 PM on November 4, 2019, and the Court shall strike any new issues raised in the sur-surreply. No further pleadings concerning Defendant’s Motion to Compel Production of Brady Material, ECF No. [109], shall be filed after the sur-surreply.

To be honest, Powell has already won the interim battle, because Sullivan has neither simply ignored her new request and claims nor told her to file a new motion, and instead has ordered the government to reply not just to the new Brady requests, but the bid to have the prosecution thrown out as part of their surreply.

That suggests Powell may well have wowed Sullivan with her ploy.

That said, Powell is in a precarious place. Her own brief accuses her client of lying in the January 24, 2017 FBI interview (albeit about a non-charged topic). Her Exhibit 15 makes it clear that the government provided Flynn with everything that was Brady information (as distinct from 5 year old records, some of the inculpatory, from DIA, or the Joseph Mifsud phones that DOJ has officially informed her are not helpful to Flynn) three days before Flynn pled guilty under oath to Sullivan last December, something Sullivan himself noted in the last hearing. One of her new claims — that Rob Kelner was too conflicted to advise Flynn to plead guilty — flies in the face of Sullivan’s own colloquy last year.

That said, Sullivan has broad leeway to decide he means his standing order on Brady will include Giglio, and that’s where Powell may well succeed.

How Sidney Powell Misrepresents Her Evidence in Her Fake Brady Motion

In this post, I laid out how Sidney Powell used what should have been a reply in her effort to obtain what she called Brady information to instead lay out, for the first time, her argument about how Flynn was abusively caught in his own acts by mean FBI Agents out to get him, and so should have the two guilty pleas he made under oath thrown out. Powell also complains about a slew of things that happen in most FBI investigations, and pretends they’re specifically abusive when they happen with her client.

In this post, I’d like to unpack what Powell does with her so-called evidence, 16 exhibits purportedly included to support her case, but also largely provided to rile up the frothy right.

Virtually everything she claims — with the possible exception that Flynn’s 302 says he acknowledged calling Sergey Kislyak 4-5 times on December 29, 2016, but actually said he didn’t remember that– is not backed by her evidence. In several cases, she presents evidence that undermines her own claims. She supports her most central claim — that the FBI Agents introduced a claim about Flynn getting a response on UN sanctions — by arbitrarily cutting up notes and hiding the continuity of notes that in fact back the Agents.

Exhibit 1: A timeline

Exhibit 1 is a timeline that purports to show how the Deep State was out to get Flynn and how all the people involved in Flynn’s prosecution allegedly involved in abuse. Powell uses the timeline to suggest all the events that happened at DOJ and FBI over a two year was a focused effort to get her client and his boss.

The real evidence the government had long suppressed caused a cavalcade of major events—many within mere days of Mr. Flynn’s plea—and all unknown to him before it. Lisa Page, Special Counsel to Deputy Director McCabe, resigned; she had edited Mr. Flynn’s 302 and was part of the small, high-level group that strategically planned his ambush. Lead Agent Peter Strzok was demoted from the Mueller investigation and ultimately fired. Strzok, who had met extensively with McCabe and the high-level, small group, was primarily responsible for creating the only basis for the charge alleged against Flynn. [emphasis original]

But the timeline is not “evidence” at all. For example, she includes a slew of events that we know don’t relate to her narrative, but which she claims do, including:

  • Andrew McCabe’s firing for (allegedly) lying to the Inspector General about leaking information that confirmed a criminal investigation into the Clinton Foundation during the campaign
  • Lisa Page’s departure from Mueller’s team, which texts to Strzok that Powell chooses not to include makes clear was planned from the time she joined Mueller’s team
  • Rachel Brand’s resignation (as well as the career moves of a bunch of other people that likely don’t relate to Flynn, but are probably best explained by Christopher Wray bringing in his own team)

The timeline includes notable gaps including:

  • President Obama’s warning to Trump not to hire Mike Flynn, based off issues that did not relate to Trump
  • Elijah Cummings’ letter to Mike Pence about Flynn’s problematic meetings with Turkey, which explains the urgency behind DOJ’s FARA questions
  • Mention of the December 23 and 31, 2016 calls from Kislyak to Flynn, which he also lied about; the December 23 call is utterly central to one of Powell’s key claims against the FBI Agents
  • Details around White House requests in early 2017 to see the information on Flynn, which explains some of the texts (indicating what a challenge it was to investigate Flynn and concerns about documenting his interview before he left) Powell elsewhere says are damning
  • The John Dowd call to Rob Kelner pressuring him not to cooperate

The timeline includes evidence that conflicts with Sidney Powell’s argument, including:

  • A quote from Strzok making it clear that in an unfiltered text to Page, he believed Flynn had lied
  • A description of how Rudolph Contreras recused from the Flynn case as soon as it would have become clear to him that Strzok was involved
  • A 302 from Lisa Page undermining her claim that there were “many” meetings to strategize on Flynn’s interview

Exhibit 2: Cherry-picked Strzok-Page texts

Exhibit 2 is a cherry-picked selection of texts from Peter Strzok and Lisa Page.

For example, Powell claims,

The belatedly-disclosed Strzok-Page texts make clear that the agents left the interview with a firm conviction Mr. Flynn was being honest, and they maintained that conviction despite strong expressions of disbelief and cries of “bullshit” from their colleagues.

But one of the texts she includes quotes Strzok describing his, “excitement knowing we had just heard him denying it all, knowing we’d have to pivot into asking.” That comment actually confirms that even in an unguarded moment, there was no doubt in Strzok’s mind that Flynn had lied about the events.

She claims that a text that very obviously pertains to Strzok’s ongoing efforts to pursue leakers — including leakers who harm Trump associates — and suggests it has something to do with animus against Flynn.

April 20, 2017, Strzok texts Page: “I had literally just gone to find this phone to tell you I want to talk to you about media leak strategy with DOJ before you go.” Ex. 2.

This text is instead proof that, rather than being part of a plot to leak information to harm Trump associates, Strzok and Page continued to pursue all leakers, including those damaging Trump associates.

Significantly, Powell does not submit a single text that shows animus towards Flynn personally, as opposed to Trump. Indeed, she includes a text discussing this article on how Trump picked Pence as a running mate; it mentions Flynn, but neither Page nor Strzok mention that (or any concern that he might have picked someone who was already regarded a counterintelligence concern).

Exhibit 3: Cherry-picked Comey memos

Exhibit 3 are two of Comey’s memos. I don’t think Powell ever gets around to using Comey’s first memo as proof FBI was using the briefing about the dossier to see how Trump would react (though the rest of her brief is consistent with that). Instead, she cites to the memos for two purposes, neither of which it supports. First, she uses it to make much of the fact that Comey briefed Trump on the dossier the day after he met with Obama’s National Security advisors.

Then Director Comey had briefed the President-Elect about these “salacious and unverified” allegations on January 6, 2017, a day after meeting in the Oval Office with President Obama, Vice-President Biden, Acting Attorney General Sally Yates, Susan Rice, James Clapper, and John Brennan. Ex. 3.

But of course, the timing has nothing to do with the dossier and everything to do with the fact that Comey, Clapper, and Brennan were briefing Trump on the same thing they briefed Obama on the day before: the preliminary results of the Intelligence Community Assessment. It’s evidence they were treating Trump as they should the incoming president, something that’s backed by other evidence.

She then uses the Comey memos (plus two Strzok 302s below) to support a footnote where Powell deliberately conflates what it takes to open a counterintelligence investigation (which, even ignoring how Powell claims one can only open an investigation if one has proof beyond a reasonable doubt about someone, can also be opened if someone is being targeted by foreign intelligence services) and what it takes to charge someone.

Under federal law, to establish that an American is acting as an agent of a foreign power, the government must show that the American is purposefully engaging in clandestine activities on behalf of a foreign power, and that it is probable that these activities violate federal criminal law. See FISA, Title 50, U.S. Code, Section 1801(b)(2). Mr. Comey and Mr. McCabe publicly admitted that in the summer of 2016, they took it upon themselves to single out four individuals associated with the Trump campaign for investigation. Admittedly, the FBI had no evidence that any of the four had committed a crime—much less that they “knowingly engage[d] in clandestine intelligence gathering activities for or on behalf of a foreign power.” Id; see Ex. 3.

The memo in no way supports the passage.

Powell unsurprisingly doesn’t include the two Comey memos that hurt her client’s claim. The January 27 memo describes Trump telling the FBI Director that, “he has serious reservations about Mike Flynn’s judgement,” which would seem to support FBI’s decisions to treat the Flynn matter seriously. In the February 8 one, Comey describes Reince Priebus asking if FBI has a FISA order targeting Flynn, something that would totally justify the FBI’s concerns about how they were dealing with and documenting an investigation of the National Security Advisor that Powell makes much of.

Exhibit 4: CNN article

Exhibit 4 is a CNN article quoting Strzok-Page texts where Page says the release of the Steele dossier may provide pretext to interview people, which is a clear reference to George Papadopoulos (everything in Steele about Flynn is OSINT). It also describes Strzok to be obviously aggravated by all the leaking going on, as well as discussions about how FBI tried to walk back a problematic NYT article that doesn’t mention Flynn, but instead focused on Paul Manafort and Roger Stone.

Exhibit 5: Peter Strzok’s 302 about Sara Carter and John Solomon’s propaganda

Exhibit 5 is a Peter Strzok 302 that Powell purports to include for what she claims is a quote from it.

In the next two weeks, there were “many meetings” between Strzok and McCabe to discuss “whether to interview [] National Security Advisor Michael Flynn and if so, what interview strategies to use.” Ex. 5.

Except that’s an egregious misquote of what the 302 actually says, which is,

I have attended many meetings with DD McCabe regarding Russian influence investigations, including meetings which discussed whether to interview former National Security Advisor Michael Flynn and if so, what interview strategies to use.

The “many” here refers to meetings about Russian influence generally, just a subset of those many meetings relate to Flynn. Nor does the 302 reflect that all those meetings happened in the two weeks before Flynn’s interview.

Powell also uses this 302 to claim that “they all knew” they had no basis to open the CI exhibit, as noted above. The only way this could be used to support the case is to take allegations included in a Sara Carter/John Solomon report claiming bias which (per the government’s last filing) was repeatedly debunked after this time, as truthful, even though Strzok says repeatedly in the 302 they’re not.

Exhibit 6: Peter’s Strzok’s 302 on his own role in the investigation

Exhibit 6 is the 302 recording a July 19, 2017 interview of Strzok describing his role in starting the investigation. Powell uses it, rather than “a seven-line summary of Ms. Yates statement,” they received in discovery, to support a claim about why Sally Yates was angry that the FBI interviewed Flynn.

Comey and McCabe were executing their own agenda—not investigating a crime. This is why, in Brady evidence still suppressed, Deputy Attorney General Sally Yates candidly opined that the interview “was problematic” and “it was not always clear what the FBI was doing to investigate Flynn.”8 This is also why Strzok admitted that Yates “was not happy” to learn of the interview and PDAG Axelrod argued with FBI General Counsel James Baker about the FBI’s unilateral decision to interview Flynn. Ex. 6.

To prove she needed the full Yates interview, Powell would need to describe what’s inadequate in the Yates summary, but she chooses not to.

Powell also uses this 302 to support the claim that “they all knew” they had no basis for a counterintelligence investigation, which it doesn’t support.

The other things that Powell uses this exhibit to prove is that the FBI — as it does for all witnesses!!!! — tried to stage the interview to be as useful as possible.

They purposely did not tell him they were investigating him and strategized at length to avoid raising any concerns. Ex. 6 (“Flynn was unguarded and clearly saw the FBI agents as allies.”).

[snip]

The agents did three briefings the day of the interview. They reported he had a sure demeanor, and he was telling the truth or believed he was—even though he did not remember it all. Ex. 6.

[snip]

” They purposely did not tell him they were investigating him and strategized at length to avoid raising any concerns. Ex. 6 (“Flynn was unguarded and clearly saw the FBI agents as allies.”).

Powell slightly misrepresents this, describing the FBI agents as believing that Flynn was telling the truth instead of saying, “both had the impression at the time that Flynn was not lying or did not think he was lying,” and she leaves out key parts of the rest of the description, including that he “did not give any indicators of deception,” which changes the meaning somewhat. In general, however, the description of how FBI planned the interview doesn’t prove bias at all on the part of the FBI; it proves they treated Flynn like they treat everyone.

Exhibit 7: Two pages of the Steele dossier

Exhibit 7 is the two pages of the Steele dossier which include the sole reference in it to Flynn.

Kremlin engaging with several high profile US players, including STEIN, PAGE, and (former DIA Director Michael Flynn), and funding their recent visits to Moscow.

[snip]

Speaking separately, also in early August 2016, a Kremlin official involved in US relations commented on aspects of the Russian operation to date. Its goals had been threefold — asking sympathetic US actors how Moscow could help them; gathering relevant intelligence; and creating and disseminating compromising information (“kompromat”). This had involved the Kremlin supporting various US political figures, including funding indirectly their recent visits to Moscow. S/he named a delegation from Lyndon LAROUCHE; presidential candidate JILL STEIN of the Green Party; TRUMP foreign policy adviser Carter PAGE; and former DIA Director Michael Flynn, in this regard and as successful in terms of perceived outcomes.

According to Powell’s own theory, the RT event took place long after the US government came to be concerned about Flynn as a CI threat, and according to her own claims, Flynn was already on Trump’s campaign at this time, so the FBI would have been reviewing these publicly known facts in real time. And while the Kremlin only indirectly funded these trips, both the Page and the Stein/Flynn trips were paid for, albeit by cut-outs. This is actually an instance where the Steele dossier only repeats generally true, OSINT facts.

Nevertheless, Powell uses it to misrepresent both the timing of Nellie Ohr’s research on Flynn (most of her research was done in 2015 and early 2016, and so was funded by Paul Singer) and why her spouse shared it with the FBI (to help them vet the dossier).

It was only much later the defense learned what the FBI already knew: This document had been bought and paid for by the Clinton campaign and the DNC. Both the FBI and Fusion GPS hired former British spy Christopher Steele. Fusion GPS was on the Clinton payroll, and it also hired Nellie Ohr—a Russia specialist with CIA ties whose husband Bruce was the fourth highestranking official in DOJ. Ms. Ohr was researching Mr. Flynn also, and his name appears twice in the “Steele dossier.” Ms. Ohr and Steele funneled their “work” through Bruce Ohr in a backchannel to the FBI, long after the FBI fired Steele for lying. Ex. 7;

Powell also uses it to demand a letter from MI6 on Steele that the NYT recently reported said that Steele was honest, but displayed questionable judgement (of the sort that might lead him to trust Oleg Deripaska).

Mr. Horowitz has asked witnesses about an assessment of Mr. Steele that MI6, the British spy agency, provided to the F.B.I. after bureau officials received his dossier on Mr. Trump in September 2016. MI6 officials said Mr. Steele, a Russia expert, was honest and persistent but sometimes showed questionable judgment in pursuing targets that others viewed as a waste of time, two people familiar with the assessment said.

Whatever Carter Page’s possible beef with the dossier, all the dossier does on Flynn is report what the FBI was (even according to Powell’s claims) already reviewing with Flynn. And a letter saying that MI6 thought Steele was honest is not going to change that.

Exhibit 8: Not-Comey’s description of Comey’s action

Exhibit 8 is Josh Campbell’s description of how Comey decided to send FBI Agents to interview Flynn without going through the White House Counsel (which Andrew McCabe nevertheless gave Flynn the opportunity to ask to do).

The government did not disclose this to Mr. Flynn until after Mr. Comey bragged about his breach on national television—not because Mr. Van Grack was complying with this Court’s order. This short video (https://www.youtube.com/watch?v=NxNhjFrjXqI) reveals Mr. Comey’s deliberate disregard for DOJ and FBI rules. In fact, Mr. Van Grack only disclosed a bland summary four days after Comey gloated about it on national television to a laughing audience— four days before Mr. Flynn’s scheduled sentencing, and because this Court entered its minute order of December 12, 2017. Dkt. 10. Mr. Flynn seeks disclosure of the full report of Mr. Comey’s conduct, any memos, notes, and 302s documenting his decision, which was admittedly the subject of “many intensive discussions” within the FBI. There must be at least notes of several others, including Comey’s Special Assistant Mr. Campbell, that document the efforts directed against Mr. Flynn. Ex. 8;

Powell uses Campbell’s description, which includes the line “screw it,” rather than a transcript of Comey’s statements that she links, which are far less inflammatory, presumably to assume that Campbell must have taken official notes of the many conversations he claims happened.

But this exhibit, like all the others on how FBI tried to optimize this interview, only shows that the FBI treated Flynn like they’d treat anyone.

Exhibits 9 and 10: Joseph Pientka and Strzok’s notes

Exhibits 9 and 10 are the notes that Joe Pientka and Strzok made, respectively, about the Flynn interview. This is the core of any legitimate argument Powell has, though here, as elsewhere, part of what she’s complaining about is normal FBI process where two Agents do an interview and then write up a 302.

Only the junior agent was taking notes during the interview. Strzok’s 302 of July 2017 says that he was handling the interview and his partner was taking notes. A 302 is to be written into Sentinel within five days. Notes are to be signed and dated by the notetaker. Inexplicably, we have two sets of notes with significant redactions—neither of which is signed and dated as required. Exs. 9, 10. Agent Strzok’s notes are far more detailed, lengthy, and written in a way that would not appear to be physically possible to write in a contemporaneous, casual setting. Ex. 10.

Powell’s claims that these notes weren’t dated or signed might have merit, though given that virtually all of her claims misrepresent key details, it’s hard to tell, especially with the way she presents the notes in screen caps followed by transcriptions.

She makes two other substantive claims about the notes. First, she claims that the notes (plus a copy showing changes made on February 10, which is Exhibit 11) falsely claim that Flynn stated that he did not ask for any specific action regarding the UN vote on Egypt’s resolution on illegal Israeli settlements.

Overnight, the most important substantive changes were made to the Flynn 302. Those changes added an unequivocal statement that “FLYNN stated he did not”—in response to whether Mr. Flynn had asked Kislyak to vote in a certain manner or slow down the UN vote. This is a deceptive manipulation because, as the notes of the agents show, Mr. Flynn was not even sure he had spoken to Russia/Kislyak on this issue. He had talked to dozens of countries. Exs. 9, 10, 11.

[snip]

Whatever Mr. Flynn said to anyone regarding the UN issues had nothing to do with the FBI’s alleged “investigation” about the 2016 election and could not be the basis for false statements “material” to that issue. According to the notes, he was not even sure he had spoken to Kislyak on that issue. Exs. 9, 10.

Perhaps Sidney Powell is this dumb, or perhaps she just thinks Emmet Sullivan is, but this is thoroughly dishonest. What Pientka’s notes show is that when Flynn was asked to offer up what contacts he had had with Kislyak, he described the following ones post-election:

  • A condolence call after Russia’s Ambassador to Turkey was killed on December 19, which Flynn described as happening “before Xmas, Mid-December day after assassination”
  • A condolence call after Russia’s military band crashed in Syria on Christmas Day
  • A single call on December 29

Then, when the Agents cue him again, he admits to:

  • The in-person Trump Tower meeting about setting up a back channel around December 1

Then, when asked about the UN vote, Flynn starts by saying, “that’s a good reminder,” then admits to calls with others, makes representations generally about all his calls regarding the UN vote where he claims he only asked about people’s positions, not to abstain, then ends by saying “Appreciate you reminding me that was another convo.” In context, that probably records — and at the very least is consistent with — an admission he spoke with Russia among his UN calls. And given his description of it occurring “Maybe Thurs-Fri prior to Xmas,” he dates it to December 22 or 23, when he claims his call was offering condolences for the assassination. (Powell splits these two up in Pientka’s notes, as she also does with the same exchange in Strzok’s notes, but the flow is clear; this is clearer in the full version of Strzok’s notes submitted with Exhibit 16)

Furthermore, Powell claims that “he talked to dozens of countries,” which she pulls from his comment about his general interactions with other countries. The notes make clear that he instead said he “talked to a bunch” of countries. It’s clear that Powell’s claim he spoke to “dozens” is false in any case, because Flynn was talking about the UNSC, on which there are just 15 members, and Flynn described how those numbers worked out — and the need to get just 5 to abstain — for the Agents.

In other words, what the notes actually show is Flynn lying about his reason for the call, being given an opportunity to fix the lie about the subject of the call, then making claims that would apply to all his UN calls (including the Russian one) that were themselves false.

In short, the notes actually appear to back the Agents.

Exhibit 11: Redline of 302

Exhibit 11 is a redline of Flynn’s 302 which, in Powell’s theory, was changed on February 10, after the press reported that Flynn didn’t speak about sanctions (as if the FBI would respond to press reports on something they already knew to be a lie), to make it more damning.

She’s concerned about two changes made in this section pertaining to the UN vote.

This section is the basis of the most inflammatory claim Powell made.

Those changes added an unequivocal statement that “FLYNN stated he did not”—in response to whether Mr. Flynn had asked Kislyak to vote in a certain manner or slow down the UN vote. This is a deceptive manipulation because, as the notes of the agents show, Mr. Flynn was not even sure he had spoken to Russia/Kislyak on this issue. He had talked to dozens of countries. Exs. 9, 10, 11.

Second, they added: “or if KISLYAK described any Russian response to a request by FLYNN.” That question and answer do not appear in the notes, yet it was made into a criminal offense. The typed version of the highly unusual “deliberative” 302 by that date already included an entire section from whole cloth that also serves as a criminal charge in the Information and purported factual basis regarding “Russia’s response” to any request by Flynn. The draft also shows that the agents moved a sentence to make it seem to be an answer to a question it was not. Exs. 9, 10, 11

As shown above, because Flynn’s comments about his asks regarding the UN vote apply to all the countries in question, it would apply to the Russian one as well.

But as shown, the only way Powell can sustain this claim is to separate Flynn saying three things that are clearly all about the same topic into three different sections of her transcription:

  • That’s a great reminder
  • No hey if you do this
  • Appreciate you reminding me that was another convo

The “Appreciate you reminding me that was another convo” certainly is consistent with the December 23 call Kislyak made to say they weren’t going to abstain, because Flynn talks about it happening the Thurs-Fri before Xmas, which would be consistent with the ask on Thursday, December 22 and the response on Friday, December 23.

Note, too, that the charge that Flynn lied about getting a response from Russia would also apply to whether Flynn acknowledged getting a response back from Kislyak after the December 29 call. As she did with the UN notes, she splits these up too, so separates where Pientka notes “no recollection of that” from where he records Flynn saying, “Nothing long drawn out don’t do something.” Her transcription of “RePP?” and “I don’t, the conversation was on” doesn’t account for the possibility that this is a question — with question mark included — about Russia’s response.

Powell makes a more credible argument about the Agents recording that Flynn affirmatively stated he made 4-5 calls to Kislyak on December 29

Notes by both agents state that Mr. Flynn does not remember making four to five calls to Ambassador Kislyak from the Dominican Republic, where he was on vacation, but that if he did so, it was because phone service was poor and he kept getting dropped. “I don’t remember making 4-5 calls. If I did lousy place to call.” The final 302 states the opposite: “Flynn remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues.” Ex. 11. This dramatically demonstrates the wrongheadedness of allowing a 302 to create a federal felony.

But this issue is not an editing one, as the draft doesn’t change on this point.

More importantly, it’s not — as the UN question is — a charged lie.

Powell is right that the problem with charging false statements off a 302 is that the editing process is human, but that doesn’t change that the notes clearly back that Flynn told numerous material lies in his interview, and she doesn’t actually claim he didn’t.

Exhibit 12: Lisa Page rebuts Powell’s claim of “many” meetings to strategize Flynn’s interview

Exhibit 12 is a 302 with Lisa Page that, among other things, proves that contrary to claims the frothy right has made about Mueller’s team not checking about Strzok bias affecting the impact of the Flynn interview, Mueller’s team instead interviewed Page to check just that.

The 302 also disproves Powell’s claim that Strzok claimed he had attended “many” meetings about how to handle the Flynn interview. As reflected in Page’s telling, there was a meeting the night before, and one after the interview.

Powell doesn’t reveal that this 302 damages her story in key ways. Instead, she seems to include it to substantiate this claim:

Lisa Page, Special Counsel to Deputy Director McCabe, resigned; she had edited Mr. Flynn’s 302 and was part of the small, high-level group that strategically planned his ambush.

But she doesn’t actually cite the exhibit here. Nor does she in a later reference to Page editing the 302.

And for his third production, it gave the defense two pages on October 4, 2018. These go precisely to the issue of McCabe’s Special Counsel Lisa Page editing the Flynn 302. Ex. 2.

But in the second instance, the 302 actually shows that Brandon Van Grack provided Flynn texts reflecting Page editing Flynn’s 302 even before they had interviewed her (on October 25) to understand what they meant. That is, this detail shows how responsive Van Grack was, not that he was slow in turning things over.

In short, there’s no basis to believe Page altered the 302. Her edits, if they were actually incorporated, went through Bill Priestap, not Strzok. And she told the FBI that she would often edit things he wrote for grammar.

But unlike the frothy right, which has been harping on this point all weekend, Sullivan may never refer to that 302, because Powell didn’t appear to cite it.

Exhibit 13: WaPo reports on the Strzok-Page texts

Exhibit 13 is a WaPo report describing that Mueller reassigned Strzok in the wake of the discovery of his texts with Page. Powell provides this to substantiate a theory that Mueller’s prosecutors were pressuring Flynn to plead guilty knowing this would come out.

Not only did Mr. Van Grack not disclose a single text message before Mr. Flynn agreed to plead guilty, but Special Counsel apparently managed to control the press on the issue until the plea was entered on December 1, 2017, in Judge Contreras’s court. It defies credulity to suggest that it was only unlucky for Mr. Flynn that the story broke the very next day. Part of the evidence we request includes communications between the press and SCO, which will likely establish that Special Counsel intensified pressure on Mr. Flynn to plead immediately while it was pressuring the press not to explode the truth that destroyed the entire case. Karoun Demirjian, Top FBI official assigned to Mueller’s Russia probe said to have been removed after sending anti-Trump texts, THE WASH. POST (Dec. 2, 2017), https://www.washingtonpost.com/world/national-security/two-senior-fbiofficials-on-clinton-trump-probes-exchanged-politically-charged-texts-disparagingtrump/2017/12/02/9846421c-d707-11e7-a986-d0a9770d9a3e_story.html; MTC 11; Ex. 13.

Unfortunately for Powell, that doesn’t change the fact that according to her own timeline, Van Grack had already disclosed this three days earlier, and that the reason the texts came out is because Rod Rosenstein okayed their release in probable violation of the Privacy Act, something that Mueller’s team probably had no way of anticipating.

Exhibit 14: The InfoWars event Flynn co-headlined with Ray McGovern and Julian Assange

Exhibit 14 consists of materials from Flynn’s speaker’s bureau, which Powell submits to show that those events were solidly in the mainstream (which is absolutely true of the Kaspersky event).

Mr. McCabe pointed to Mr. Flynn’s “very public interactions with Vladimir Putin and other Russians.” These “interactions” seem to have arisen from the work of CIA/FBI operatives Stefan Halper and Joseph Mifsud, and bookings made by Mr. Flynn’s American speakers’ bureau, Leading Authorities (which books engagements for countless former government officials and prominent people). Leading Authorities booked him for three events with “Russian connections”: one in Moscow for RT and two in Washington. All were well attended by prominent persons from around the world because of the important issues discussed and the presence of other recognized experts on the programs. See Ex. 14; MTC 4, 16.

Yet among the other things these materials reveal are that the RT event featured Oliver Stone and Max Blumenthal on InfoWars (at a time when Russia had already kicked off its 2016 InfoWar against Putin).

It also featured Julian Assange and Ray McGovern on a panel about security and surveillance.

His talk to Volga-Dnepr Airlines was not recorded or open to the media.

The RT materials, while already broadly public, are especially damning, as they effectively show that Russia orchestrated his appearance, right alongside Putin, at the same event which a bunch of people who would later be part of the effort to deny Russia’s role in this infowar. A number of these people have been friends of mine (though they’re also among the people who’ve attacked me most baselessly once I started saying publicly that Russia did the hack), but they’re in no way the best experts to talk about infowars or how to balance privacy and counterterrorism.

Exhibit 15: Proof that Mueller’s team provided discovery before Flynn pled guilty a second time before Sullivan

Exhibit 15 is another timeline, this one providing the dates — but not the substance — of what Mueller provided in discovery in response to Emmet Sullivan’s order (note: it also gets at least some of the dates wrong, even as compared to her other timeline).

Powell claims in her brief that Flynn didn’t get all this material before he pled guilty the first time.

Neither Mr. Flynn nor his former counsel had any of these documents or knowledge of the plethora of information discussed above when Mr. Flynn entered his plea.

But Powell’s own timeline shows that every installment of the government’s production save one preceded the date last year when Flynn pled guilty again to Emmet Sullivan.

The exception is material handed over on August 16 of this year that relates to Flynn’s time at DIA which (given that it dates to at least two years before he committed the crimes in question) cannot be relevant to his crimes. Indeed, the government says that some of it is inculpatory.

Request #15: The government is not aware of any information in possession of the Defense Intelligence Agency that is favorable and material to sentencing, including the information that the government provided on August 16, 2019. Specifically, the information of which the government is aware, including that August 16 production, is either inculpatory or has no relevance to the defendant’s false statements to the FBI on January 24, 2017, or to the FARA Unit.

In short, Powell’s own timeline shows that the government complied with Sullivan’s standing order before Flynn pled guilty before Sullivan.

Exhibit 16: The handwriting analysis that doesn’t even try to disprove Strzok

Finally, there is Exhibit 16, a declaration from a handwriting analyst. Powell includes it to substantiate a demand for Strzok’s original notes of his interview with Flynn to investigate an “anomaly” that she doesn’t describe (making this request moot from a Brady standpoint).

Agent Strzok’s notes are far more detailed, lengthy, and written in a way that would not appear to be physically possible to write in a contemporaneous, casual setting. Ex. 10. The defense requests production of the actual, original notes, and handwriting samples of Strzok of contemporaneous and non-contemporaneous notes to evaluate another anomaly that further calls into question the entire effort by the FBI to manipulate and set up Mr. Flynn, and its report of that interview. Ex. 16.

But as her expert lays out, getting Strzok’s original notes would not be enough, because he would also need a baseline of how Strzok takes notes.

If additional comparable6 notations of Agent Strzok written under similar conditions could be obtained and submitted for analysis, it may be possible to determine whether the (Q-1) notations were prepared as purported. In consideration of both the observations made, as well as limitations present, further analysis of the original evidence would likely be necessary to support any definitive conclusions in this matter.

Ultimately, her expert says he can’t make any conclusions about whether the notes were “written during the course of the January 24th interview, or prepared at a subsequent time period.”

Based upon the inherent limitations arising from the examination of non-original evidence, compounded with the lack of any known comparison handwritten notations of Agent Peter Strzok (i.e., other non-contested handwritten notations prepared under like conditions), it has been determined that no conclusion can be rendered as to whether the submitted (Q-1) notations were written during the course of the January 24th interview, or prepared at a subsequent time period.

But as Powell makes clear in the very same paragraph where she makes this demand, no one claimed that Strzok wrote these notes during the interview. Only Pientka’s notes were taken during the interview (which is, again, one of those potentially bad things that is normal for FBI interviews that Powell thinks shouldn’t happen with her client).

Only the junior agent was taking notes during the interview. Strzok’s 302 of July 2017 says that he was handling the interview and his partner was taking notes.

So Powell uses this expert to claim she needs the original of Strzok’s notes to prove that he wrote them at a time he didn’t write them.

Which sounds like the definition of sanctionably frivolous behavior.

Sidney Powell Accuses Mike Flynn of Lying to the FBI on January 24, 2017

I’m starting my deep dive into the case Sidney Powell tries to make to convince Emmet Sullivan to throw out the guilty pleas Mike Flynn pled to twice (in this post, I laid out how she used a “reply” brief demanding Brady material to make an opening argument in a bid to get the case thrown out).

But in starting my deep dive, I didn’t get two lines into her exhibits before I realized that Sidney Powell, in documents submitted to the court, accused her client of lying to the FBI on January 24, 2017, precisely the crime she says he shouldn’t be held accountable for. At issue is the timeline she created to suggest every single event that happened at FBI between 2016 and 2018 was part of a plot to get her client. The second entry, which describes how Trump accepted the GOP nomination around the same time Lisa Page and Peter Strzok said two bad things about Trump (but not about Flynn), says that Flynn joined the campaign in 2015, though she claims not to know the date.

By setting the date when Flynn joined the campaign to sometime vaguely in 2015, it suggests the government’s interest in his actions leading up to and during the RT Gala in Moscow in December 2015 were part of general animus direct at Trump, and not a legitimate counterintelligence concern about a former General being paid by a foreign propaganda outlet to eat dinner with Vladimir Putin.

Except that detail — that he was already part of the campaign in 2015 — conflicts with something he told the FBI on January 24, 2017: that he wasn’t really part of the Trump campaign yet when, after his former counterpart at GRU, Igor Sergun, died unexpectedly on January 3, 2016, he called Sergey Kislyak to offer condolences.

Back in January 2017, Flynn would have had good reason to distance this call from Trump, because if it happened while he was part of the campaign, it would suggest he and Russia were in discussions even before Russia started stealing emails from Hillary Clinton and the Democrats.

Of particular note, the two other calls he claimed, in his interview with the FBI, were condolence calls actually weren’t, at least not primarily. On those, he was instead discussing policy issues.

But now Sidney Powell, Flynn’s own lawyer, says that’s not true, that he was already part of the campaign when he made this call.

It remains to be seen whether this Powell gambit will work. But accusing her client of lying to the FBI seems like an odd way to prove that only people who have an animus against Flynn would accuse him of lying to the FBI.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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