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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.

The Frothy Right Gets More Excited about an Eight Year Old Phone than Contemporaneous Metadata

As is her wont, Mike Flynn lawyer Sidney Powell engaged in another little bit of theater yesterday.

She demanded that prosecutors turn over two BlackBerry phones, reportedly used by Joseph Mifsud, that “has only recently come into [the government’s] possession,” (which presumably means the Attorney General fed her these details after he returned from Italy). Powell demanded the phones as Brady evidence, even though she didn’t make any effort to claim the phones had anything to do with the crimes her client pled guilty to, crimes he committed in 2017.

Rather, she claims these phones show something that went down in 2014, presumably relating to his termination from DIA.

This information is material, exculpatory, and relevant to the defense of Mr. Flynn, and specifically to the “OCONUS LURES” and agents that western intelligence tasked against him likely as early as 2014 to arrange—unbeknownst to him—“connections” with certain Russians that they would then use against him in their false claims.

She helpfully provides the SIM and IMEI data for the phones, which would enable skilled InfoSec experts with a tolerance for working in gray areas of the law to pull up any metadata still available.

But she also describes that these phones are a 9900 Bold — a phone that dates to May 2011 — and a Classic SQC100-1 that dates to December 2014. In other words, these are old phones, ancient in terms of modern smart phones. They date to before the only known alleged interaction between Mifsud and Flynn, at the RT dinner where he got paid to sit with Vladimir Putin. And while it’s possible they have comms involving George Papadopoulos, it is virtually certain they have nothing pertaining to the lies Mike Flynn told in 2017.

Which means it is virtually certain they contain no Brady evidence pertaining to this case.

But the filing worked as, I’m sure, she (and the Attorney General?) planned, to work the conspiracist right into a frenzy based on a claim that has no basis in the law.

In addition to being insufficiently curious about Mifsud’s presence at that RT gala, the frothy right still have never shown any awareness of this passage, which shows that Mifsud was in touch with someone who seems to have had ties to both the IRA part of the 2016 Russian operation and the GRU side.

Even if Mifsud has had ties to Western intelligence in 2011, it doesn’t say anything about whether he had closer ties to Russia in 2016, when it matters (even for the Papadopoulos story, much less the Flynn one). That’s what spies do. They recruit people with access to people they want information about.

In short, Sidney Powell and Bill Barr have gotten the frothy right more worked up about an 8 year old phone than they have ever been about metadata contemporaneous to Russia’s efforts to sway the 2016 elections.

Update: A pro-conspiracy Italian asserts that these are Mifsud’s British phones, not his Italian ones, which would show his network in Italy. Of course, neither are his Russian ones, if he has separate phone for each country he frequents, and those would be the ones of interest, allegedly, to Powell.

The Conspiracy Theories Flynn Wants to Resuscitate and the McCabe Investigation

Lost in the frenzy regarding the conspiracy theories Rudy Giuliani is planting and the Attorney General is personally chasing is the government’s response to Mike Flynn’s purported “Brady” demand — which accuses Flynn lawyer Sidney Powell of planting conspiracy theories. I tweeted about the package in this thread. While there may be a dispute about a few items, I correctly predicted that the main legal question is whether Emmet Sullivan will interpret his standing Brady order — requiring that prosecutors turn over Brady information even for defendants pleading guilty — will extend to Giglio information impeaching witnesses. In response to a request for any Brady or Giglio information discovered by DOJ’s Inspector General in the last two years, DOJ states flat out Giglio is not covered by Sullivan’s order.

The government has already provided the defendant with all Brady material; it is not obligated to provide Giglio material pursuant to the Court’s Standing Order, United States v. Flynn, 17-cr-232 (D.D.C. Feb. 16, 2018) (Doc. 20).

And much of the rest of what Powell is asking for, pertaining to Peter Strzok at least, would be Giglio.

That said, there is a part of the government’s substantiation that Sidney Powell is sowing conspiracy theories that deserves more attention. The government lays out how Flynn lawyer Rob Kelner asked the government three times about a conspiracy theory that Andrew McCabe, before Powell asked a fourth time.

The defendant’s complaints and accusations are even more incredible considering the extensive efforts the government has made to respond to numerous defense counsel requests, including to some of the very requests repeated in the defendant’s motion. For instance, the defendant alleges that former FBI Deputy Director Andrew McCabe said, “‘First we f**k Flynn, then we f**k Trump,’ or words to that effect;” and that Deputy Director McCabe pressured the agents to change the January 24 interview report. See Mot. to Compel at 4, 6 (Request ##2, 22). Defense counsel first raised these allegations to the government on January 29, 2018, sourcing it to an email from a news reporter. Not only did the government inform defense counsel that it had no information indicating that the allegations were true, it conducted additional due diligence about this serious allegation. On February 2, 2018, the government disclosed to the defendant and his counsel that its due diligence confirmed that the allegations were false, and referenced its interview of the second interviewing agent, who completely denied the allegations. Furthermore, on March 13, 2018, the government provided the defendant with a sworn statement from DAD Strzok, who also denied the allegations.

Nevertheless, on July 17, 2018, the defense revived the same allegations. This time, the defense claimed that the source was a staff member of the House Permanent Select Committee on Intelligence (“HPSCI”). The HPSCI staff member allegedly told the defendant that the second interviewing agent had told the staff member that after a debrief from the interviewing agents, Deputy Director McCabe said, “F**k Flynn.” Once again, the government reviewed information and conducted interviews, and once again confirmed that the allegations were completely false. And after defendant and his counsel raised the accusation for a third time, on October 15, 2018, the government responded by producing interview reports that directly contradicted the false allegations. Despite possessing all of this information, defense counsel has again resurrected the false allegations, now for a fourth time. See Mot. to Compel at 4, 6 (Request ##2, 22)

The persistence of this conspiracy theory — and HPSCI’s role in perpetuating it — is significant for another reason.

The IG Report on Andrew McCabe discusses how DOJ IG came to investigation McCabe this way.

In May 2017, the FBI Inspection Division (INSD) expanded a pre-existing investigation of media leaks to include determining the source of the information in the October 30 WSJ article regarding the August 12 McCabe-PADAG call. INSD added the October 30 article to their pre-existing matter because it appeared to involve an instance of someone at the FBI leaking the Deputy Director’s private conversations to the media.

The backstory to this is that Jim Comey asked the Inspection Division to investigate leaks (remember, something Trump had demanded). But the “pre-existing” investigation referenced reportedly pertained to the same conspiracy theory: that someone had leaked to the press that McCabe had said “First we fuck Flynn, then we fuck Trump” in front of some FBI Agents. (I believe the Circa story cited here eventually came to be part of the investigation, but TruePundit claims credit for the conspiracy, pointing to a version that temporally matches the timeline.)

Note the asymmetry to this story.

No DOJ entity, whether FBI’s Inspection Division, DOJ IG, or Flynn’s prosecutors have presented the public proof that this serial conspiracy theory has been debunked — much less chase down the Agents who keeps spreading it and prosecute them. But because the Inspector Division asked McCabe who might be leaking about him (which is what the initial question was), he is being pursued in an investigation that Reggie Walton denounced the other day.

This is how conspiracy theories about what DOJ and FBI did in the last three years are allowed to persist, much less get reentered into court filings that otherwise would get the lawyers doing so sanctioned.

Is Bill Barr Already Feeding Sidney Powell So-Called Evidence Trump Coerces?

The WaPo confirms what was becoming obvious: The Attorney General of the United States is spending his days flying around the world collecting claims that Trump has coerced from foreign governments. It reports that Barr has already had conversations similar to those Trump seeded with Ukraine with the UK, Italy, and Australia.

Barr has already made overtures to British intelligence officials, and last week the attorney general traveled to Italy, where he and Durham met senior Italian government officials and Barr asked the Italians to assist Durham, according to one person familiar with the matter, who spoke on the condition of anonymity to discuss a sensitive issue. It was not Barr’s first trip to Italy to meet intelligence officials, the person said. The Trump administration has made similar requests of Australia, said people who discussed the interactions on the condition of anonymity because they involve an ongoing investigation and sensitive talks between governments.

In a recent phone call, Trump urged Australian Prime Minister Scott Morrison to provide assistance to the ongoing Justice Department inquiry, the people said. Trump made the request at Barr’s urging, they said.

I raise all this because of something Sidney Powell said on September 10. At the status hearing for her client, Mike Flynn, she said that they had a letter from the British Embassy that “undoes the whole Steele dossier debacle.”

It was an interesting claim for several reasons. Most notably, the only references to Powell’s client in the Steele dossier simply repeat public claims about Flynn’s paid trip to an RT gala in 2015. That is, it’s totally irrelevant to the question of Flynn’s guilt on the charges he pled to or even the counterintelligence investigation into her client. Even if DOJ had such a record, it’d not be discoverable under Brady.

But Powell seemed to be saying she had the letter.

That raises the possibility that Bill Barr is not — as he claims — collecting “evidence” for a John Durham investigation into the start of the Russian investigation, but is instead (or also) collecting evidence he can share with those prosecuted by Mueller to help them undermine their guilty pleas and or convictions (which would raise interesting questions about Roger Stone’s focus on Crowdstrike, given that’s included in Trump’s list of propaganda he wants to extort from foreign countries).

Mind you, Powell could be lying or unclear about this document–she has been caught in both multiple times so far before Emmet Sullivan. But this claim — which was surprising to me at the time — raises real questions about whether Barr is using coerced evidence to undermine his own DOJ.

Update: I think I have the timing of this letter wrong. I think it was sent under Obama, not recently. 

Judge Trenga’s Bijan Kian Decision May Hurt, Not Help, Mike Flynn

As expected, Judge Anthony Trenga has overturned the conviction of Mike Flynn’s former partner, Bijan Kian. Trenga has long expressed doubts about the way the government charged this case. And when Flynn reneged on a part of his plea colloquy, it made him useless as a witness but — following a ruling from Trenga — did not make his statements available as a co-conspirator.

While a lot of people are seeing this (accompanied by the news that Vin Weber and Tony Podesta won’t be charged) as a blow for DOJ’s new FARA prosecution practice, I think Trenga’s opinion has greater repercussions for 18 USC 951 prosecutions than it does for FARA, because he finds (convincingly) that Congress intended the standards for the former to be significantly higher than for the latter.

That said, a central part of Trenga’s ruling derived from his decisions regarding Flynn’s role in this and was, in part, a result of Flynn’s decision to renege on his plea colloquy. Because the government couldn’t call him to testify but neither could rely on his statements as a co-conspirator, it made the most important evidence fairly useless at trial.

There was no competent evidence from which the jury could find that Alptekin acted as the type of “intermediary” the Government contends. In fact, the only evidence of any association between Alptekin and the Turkish government in connection with FIG’s retention is reflected in the hearsay statements of Alptekin to Rafiekian, which were admitted not as proof of Alptekin’s relationship or role relative to Turkey, but solely as evidence of what Alptekin told Rafiekian. Accordingly, the jury had no evidence of what Alptekin’s actual relationship or role was relative to the Turkish government, and because of that absence of evidence could not find for its purposes in deciding the case that Alptekin was, in fact, operation as an agent, alter ego, representative, “cut-out”, or any other type of “intermediary” for the Turkish government.”

That’s not the only basis for Trenga overturning the conviction. He also points to Alptekin’s disappointment with what FIG delivered to support a ruling that FIG was not working at the direction of Turkey (as required under 951 but not FARA). But the Flynn head fake is a key part of this.

So while a bunch of Flynn frothers who ignore all the very public ways that Sidney Powell’s claims about Flynn’s prosecution are horseshit are celebrating this decision, unless Emmet Sullivan finds any of Powell’s claims persuasive, this decision is likely to hurt Flynn. The government has already said they’re going to write a new sentencing memo, and this opinion will provide compelling reason to argue that Flynn ultimately did not cooperate.

Trenga’s decision is, given the facts of the case, quite compelling. But that says nothing about what Sullivan’s decision in upcoming months will be.

The Giglio Brady Head Fake in Sidney Powell’s Latest

I’d like to congratulate Sidney Powell, whose motion to show cause is less batshit than the Brady motion I unpacked here (note, these motions work together, but we only got this most recent one today because it had been submitted under seal under the protective order until the government redacted the names of some FBI Agents).

Powell fancies both motions as demands for Brady material she claims has been withheld in violation of Emmet Sullivan’s standing order that the government produce Brady material even to defendants that, like Flynn, plead guilty. But the key to understanding the motion, in my opinion, comes in the middle of a list of things she demands. She asks not just for Brady material (that is, evidence that is exculpatory to the charges Flynn pled guilty to), but also for any new Giglio information discovered by the government in the last two years.

Brady or Giglio material newly discovered by the government (and by the Inspector General in his separate investigations) in the last two years.

Giglio material is information that would impeach potential witnesses.

To understand the distinction, consider Powell’s complaints about recent discovery she got, which is batshit insane on its face.

To substantiate her claim that the government has violated its Brady obligations, she points to materials Brandon Van Grack had just provided the week before this motion.

In fact, just last week, Mr. Van Grack produced an additional 330 pages that included information that any reasonable attorney would understand as Brady evidence in light of Special Counsel’s investigation and assertions that Mr. Flynn was an undisclosed “agent of Russia” or an “agent of Turkey.”2 That production also shows that Mr. Flynn passed his polygraph test in 2016 and his security clearance was renewed. This was at the same time the FBI seems to have been investigating him under the pretext that he was an “agent of Russia” and/or of Turkey. Interestingly, the new production also shows that James Clapper refused to assist in the investigation for Mr. Flynn’s security clearance, which Mr. Flynn received after a full investigation despite Mr. Clapper’s actions.

She makes several crazy ass claims in this passage. First, she boasts that Flynn was able to pass a polygraph in April 2016 at a time, she claims, that he was under investigation for being an agent of whatever country was offering the highest bid. It’s unclear when the investigation into whether he was a Russian agent started. But the investigation into whether he was a Turkish agent hadn’t started yet because the underlying conduct hadn’t started yet! Moreover, Flynn didn’t plead to being a Russian agent (indeed, the investigation into whether he was compromised by Russia may have been reopened and remain open), so whether that poly reflected about him being so is irrelevant to the charges (and therefore not Brady).

In other words, Powell is claiming that a successful April 2016 polygraph is proof of innocence for lies Flynn told in January 2017 about contacts with Sergey Kislyak in November and December 2016, and lies he told in March 2017 about a relationship with Turkey that began in July 2016 and he was actively hiding in August through November 2016, when he was getting Top Secret briefings with candidate Trump. On its face, it’s a batshit insane claim (which is probably why Sara Carter is running with it).

Oh, and remember, the FBI agents who interviewed Flynn were pretty impressed with his ability to appear convincing while telling what they knew were outright lies. Flynn is (unsurprisingly, for a lifetime intelligence officer) good at lying.

But that’s almost certainly not why Powell is interested in this polygraph (it’s also almost certainly not why she got it, either, but I’ll reserve that explanation for a later time). She’s interested in the poly because it shows that Mike Flynn was able to renew his clearance even though James Clapper, who had fired him, would not recommend he have it renewed. That is, she wants to highlight this as part of an argument that the investigation into Flynn and everyone else was part of a Deep State coup against Trump and his flunkies.

In fact, most of her non-crazy requests (and there are a number of them) fit that narrative too. It’s not about any exculpatory evidence against Flynn — he already got that. It’s about allegedly damning details about the people who investigated him, to include Peter Strzok and James Clapper and Jim Comey and a slew of other people. But that’s Giglio, material that might make these people look bad if they ever had to testify against Flynn, not Brady (and with the exception of Strzok, none would have testified against him, and FBI could have avoided having Strzok testify too).

It actually is an interesting question about the scope of Sullivan’s standing order (though as Van Grack made clear in yesterday’s hearing, Flynn actually got a lot of stuff Powell claims he should have gotten before he pled guilty before he did plead guilty first once and then a second time). And Sullivan may well rule that Flynn should get some of it. But none of that will change that he lied over and over about his behavior while in the employ of Donald Trump.

That’s not the only thing Flynn is doing with this motion (he also seems to be fishing for evidence of selective prosecution based on KT McFarland’s ability to clean up her testimony after Flynn flipped). But it is the central one.

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

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

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

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

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

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

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

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

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

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

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