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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.

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.

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.

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.

Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

According to Mike Flynn’s Fox News lawyer, Sidney Powell, to “defend” himself in a guilty plea he has already sworn to twice under oath, he needs to obtain unredacted versions of a Comey memo showing he was not targeted with a FISA warrant and a FISA order showing that people who were targeted with FISA warrants might have been improperly scrutinized while they were overseas.

That’s just part of the batshittery included in a request for Brady material submitted to Emmet Sullivan last Friday.

The motion is 19 pages, most of which speaks in gross generalities about Brady obligations or repeats Ted Stevens Ted Stevens Ted Stevens over and over again, apparently a bid to convince Judge Emmet Sullivan that this case has been subject to the same kind of abuse that the late Senator’s was.

After several readings, I’ve discovered that Powell does make an argument in the motion: that if the government had provided Flynn with every damning detail it has on Peter Strzok, Flynn might not have pled guilty to lying to Strzok about his conversations with Russian Ambassador Sergey Kislyak or admitted that he used a kickback system to hide that he was a paid agent of Turkey while getting Top Secret briefings with candidate Trump.

They affirmatively suppressed evidence (hiding Brady material) that destroyed the credibility of their primary witness, impugned their entire case against Mr. Flynn, while at the same time putting excruciating pressure on him to enter his guilty plea and manipulating or controlling the press to their advantage to extort that plea. They continued to hide that exculpatory information for months—in direct contravention of this Court’s Order—and they continue to suppress exculpatory information to this day.

One of the things Powell argues Flynn should have received is unredacted copies of every text Strzok sent Lisa Page.

The government’s most stunning suppression of evidence is perhaps the text messages of Peter Srzok and Lisa Page. In July of 2017, (now over two years ago), the Inspector General of the Department of Justice advised Special Counsel of the extreme bias in the now infamous text messages of these two FBI employees. Mr. Van Grack did not produce a single text messages to the defense until March 13, 2018, when he gave them a link to then-publicly available messages. 14

Mr. Van Grack and Ms. Ahmad, among other things, did not disclose that FBI Agent Strzok had been fired from the Special Counsel team as its lead agent almost six months earlier because of his relationship with Deputy Director McCabe’s Counsel—who had also been on the Special Counsel team—and because of their text messages and conduct. One would think that more than a significant subset of those messages had to have been shared by the Inspector General of the Department of Justice with Special Counsel to warrant such a high-level and immediate personnel change. Indeed, Ms. Page left the Department of Justice because of her conduct, and Agent Strzok was terminated from the FBI because of it.

14 There have been additional belated productions. Each time more text messages are found, produced, or unredacted, there is more evidence of the corruption of those two agents. John Bowden, FBI Agent in Texts: ‘We’ll Stop’ Trump From Becoming President, THE HILL (June 14, 2018), https://thehill.com/policy/national-security/392284-fbi-agent-in-texts-well-stop-trumpfrom-becoming-president; see also U.S. Dept. of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018) (https://www.justice.gov/file/1071991/download). But the situation is even worse. After being notified by the Inspector General of the Department of Justice of the extraordinary text communications between Strzok and Page (more than 50,000 texts) and of their personal relationship, which further compromised them, Special Counsel and DOJ destroyed their cell phones. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation: Recovery of Text Messages From Certain FBI Mobile Devices, Redacted Ed. Washington, D.C. (2018), https://www.justice.gov/file/1071991/download. This is why our Motion also requests a preservation order like the one this Court entered in the Stevens case.

As is true of most of this filing, Powell gets some facts wrong here. The public record says that as soon as Mueller got the warning from Michael Horowitz about the texts, he started moving Strzok off the team. He didn’t need to see the texts, that they were there was issue enough. And Lisa Page remained at FBI until May 2018, even after the texts were released to the public.

And while, if Sullivan had taken Flynn’s initial guilty plea rather than Rudy Contreras, one might argue that Van Grack should have alerted Flynn’s lawyer Rob Kelner of the existence of the Strzok-Page texts, DOJ was not required to turn them over before Flynn’s guilty plea. Moreover, the problem with claiming that withholding the Strzok-Page texts prevented Flynn from taking them into account, is that they were made public the say day Emmet Sullivan issued his Brady order and Flynn effectively pled guilty again a year after they were released, in sworn statements where he also reiterated his satisfaction with his attorney, Kelner. Any texts suggesting bias had long been released; what remains redacted surely pertains either to their genuine privacy or to other counterintelligence investigations.

Finally, at least as far as public evidence goes, Strzok was, if anything, favorable to Flynn for the period he was part of the investigation. He found Flynn credible in the interview, and four months later didn’t think anything would come of the Mueller investigation. So the available evidence, at least, shows that Flynn was treated well by Strzok.

The filing also complains about information just turned over on August 16.

For example, just two weeks ago, Mr. Van Grack, Ms. Curtis, and Ms. Ballantine produced 330 pages of documents with an abject denial the production included any Brady material.6 Yet that production reveals significant Brady evidence that we include and discuss in our accompanying Motion (filed under seal because the prosecutors produced it under the Protective Order).

6 “[T]he government makes this production to you as a courtesy and not because production of this information is required by either Brady v. Maryland, 373 U.S. 83 (1963), or the Court’s Standing Order dated February 16, 2018.” Letter from Mr. Brandon Van Grack to Sidney K. Powell, Aug. 16, 2019.

Given the timing, it may well consist of the unclassified materials showing that Turkey (and possibly Russia) believed Flynn to be an easy mark and expected to be able to manipulate Trump through him. I await either the unsealing of Powell’s sealed filing or the government response to see if her complaints are any more worthy than this filing.

That’s unlikely. Because the rest of her memo makes a slew of claims that suggest she’s either so badly stuck inside the Fox bubble she doesn’t understand what the documents in question actually say, or doesn’t care. In her demand for other documents that won’t help Flynn she,

  • Misstates the seniority of Bruce Ohr
  • Falsely claims Bruce Ohr continued to serve as a back channel for Steele intelligence when in fact he was providing evidence to Bill Priestap about its shortcomings (whom the filing also impugns)
  • Suggests the Ohr memos pertain to Flynn; none of the ones released so far have the slightest bit to do with Flynn
  • Falsely suggests that Andrew Weissmann was in charge of the Flynn prosecution
  • Claims that Weissman and Zainab Ahmad had multiple meetings with Ohr when the only known meeting with him took place in fall 2016, before Flynn committed the crimes he pled guilty to; the meeting likely pertained to Paul Manafort, not Flynn
  • Includes a complaint from a Flynn associate that pertains to alleged DOD misconduct (under Trump) to suggest DOJ prosecutors are corrupt

In short, Powell takes all the random conspiracy theories about the investigation and throws them in a legal filing without even fact-checking them against the official documents, or even, at times, the frothy right propaganda outlets that first made the allegations.

Things get far weirder when it comes to her demands relating to FISA information. In a bid to claim this is all very pressing, Powell demands she get an unredacted version of the Comey IG Report.

Since our initial request to the Department by confidential letter dated June 6, 2019, we have identified additional documents that we specify in our Motion. Now, with the impending and just-released reports of the Inspector General, there may be more. The Report of the Inspector General regarding James Comey’s memos and leaks is replete with references to Mr. Flynn, and some information is redacted. There may also be a separate classified section relevant to Mr. Flynn. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02 (Aug. 29, 2019), https://oig.justice.gov/reports/2019/o1902.pdf

The only redacted bits in the report are in Comey’s memos themselves — the stuff that the frothy right is currently claiming was so classified that Comey should have been prosecuted for leaving them in a SCIF at work. Along with unclassified sections quoting Trump saying he has “serious reservations about Mike Flynn’s judgment” (the redacted bit explains that the President was pissed that Flynn didn’t tell him about Putin’s congratulatory call right away) and “he had other concerns about Flynn,” there’s this section that redacts the answer to Reince Priebus’ question about whether the FBI has a FISA order on Flynn (PDF 74).

The answer, though, is almost certainly no. Even if the FBI obtained one later, there was no way that Comey would have told Priebus that Flynn was targeted; the FBI became more concerned about Flynn after this February 8 conversation, in part because of his continued lies about his work with Turkey.

Flynn’s team also demands an unredacted copy of this 2017 FISA 702 Rosemary Collyer opinion, though Powell’s understanding of it seems to based off Sara Carter’s egregiously erroneous reporting on it (here’s my analysis of the opinion).

Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only did the last administration—especially from late 2015 to 2016—dramatically increase its use and abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained information among federal agencies.10 Judge Collyer determined that former FBI Director Comey gave illegal unsupervised access to raw NSA data to multiple private contractors. The court also noted that “the improper access granted the [redacted] contractors was apparently in place [redacted] and seems to have been the result of deliberate decision making” including by lawyers.11, 12

10 See also Charlie Savage, NSA Gets More Latitude to Share Intercepted Communications, THE N.Y. TIMES (Jan. 12, 2017) (reporting that Attorney General Loretta Lynch signed new rules for the NSA that permitted the agency to share raw intelligence with sixteen other agencies, thereby increasing the likelihood that personal information would be improperly disclosed), https://www.nytimes.com/2017/01/12/us/politics/nsa-gets-more-latitude-to-share-interceptedcommunications.html; See also Exec. Order No. 12,333, 3 C.F.R. 200 (1982), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003).

11 FISC Mem. and Order, p. 19, 87 (Apr. 26, 2017) www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (noting that 85% of the queries targeting American citizens were unauthorized and illegal).

12 This classified and heavily redacted opinion is one of the documents for which defense counsel requests a security clearance and access.

As a threshold matter, Powell gets virtually everything about the Collyer memo wrong. Collyer didn’t track any increase in “about” searches (it was one of the problems with her memo, that she didn’t demand new numbers on what NSA was doing). It tracked a greater number of certain kinds of violations than previously known. The violation resulting in the 85% number she cited was on US persons targeted between November 2015 and May 2016, but the violation problem existed going back to 2012, when Flynn was still part of the Deep State. What Collyer called a Fourth Amendment violation involved problems with 704/705b targeting under FISA, which are individualized warrants usually tied to individualized warrants under Title I (that is, the kind of order we know targeted Carter Page), and probably a limited set of terrorism targets. Given that the Comey memo almost certainly hides evidence that Flynn was not targeted under FISA as of February 8, 2017, it means Flynn would have had to be a suspected terrorist to otherwise be affected. Moreover, the NSA claimed to have already fixed the behavioral problem by October 4, 2016, even before Carter Page was targeted. I had raised concerns that the problems might have led to problems with Page’s targeting, but since I’ve raised those concerns with Republicans and we haven’t heard about them, I’m now fairly convinced that didn’t happen.

At least some of the FBI violation — letting contractors access raw FISA information — was discontinued in April 2016, before the opening of the investigation into Trump’s flunkies, and probably all was discontinued by October 4, 2016, when it was reported. One specific violation that Powell references, however, pertains to 702 data, which could not have targeted Flynn.

Crazier still, some of the problems described in the opinion (such as that NSA at first only mitigated the problem on the tool most frequently used to conduct back door searches) cover things that happened on days in late January 2017 when a guy named Mike Flynn was National Security Advisor (see PDF 21).

Powell should take up her complaints with the guy running National Security at the time.

Craziest still, Powell describes data collected under EO 12333 as “illegally obtained information” (Powell correctly notes that the Obama Administration permitted sharing from NSA to other agencies, but that EO would not affect the sharing of FISA information at all). If EO 12333 data, which lifetime intelligence officer Mike Flynn used through his entire career, is illegally obtained, then it means lifetime intelligence officer Mike Flynn broke the law through his entire government career.

Sidney Powell is effectively accusing her client (incorrectly) of violating the law in a motion that attempts to argue he shouldn’t be punished for the laws he has already admitted breaking.

In short, most of the stuff we can check in this motion doesn’t help Flynn, at all.

And at least before Powell submitted this, Emmet Sullivan seemed unimpressed with her claims of abuse.

The government and Flynn also submitted a status report earlier on Friday. In the status report, the government was pretty circumspect. Flynn’s cooperation is done (which is what they said almost a year ago), they’d like to schedule sentencing for October or November, and they’ve complied with everything covered by Brady. Anything classified, like Powell is demanding, would be governed by CIPA and only then discoverable if it is helpful to the defense.

Powell made more demands in the status report, renewing her demand for a security clearance and insisting there are other versions of the Flynn 302.

To sort this out, the government suggested a hearing in early September, but Powell said such a hearing shouldn’t take place for another month (during which time some of the IG reports she’s sure will be helpful will come out).

The parties are unable to reach a joint response on the above topics. Accordingly, our respective responses are set forth separately below. Considering these disagreements, the government respectfully requests that the Court schedule a status conference. Defense counsel suggests that a status conference before 30 days would be too soon, but leaves the scheduling of such, if any, to the discretion of the Court. The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

Judge Sullivan apparently sided with the government (and scheduled the hearing for a date when Flynn’s attorneys claim to be unable to attend).

Every time Flynn has tried to get cute thus far, it has blown up in his face. And while Sullivan likely doesn’t know this, the timing of this status hearing could be particularly beneficial for the government, as they’ll know whether Judge Anthony Trenga will have thrown out Bijan Kian’s conviction because of the way it was charged before the hearing, something that would make it far more likely for the government to say Flynn’s flip-flop on flipping doesn’t amount to full cooperation.

And this filing isn’t even all that cute, as far as transparent bullshit goes.

The Unremarkable Bruce Ohr 302s

Last night, Judicial Watch (and DOJ) released some of the FD-302s (FBI interview reports) between Bruce Ohr and the FBI. This post will lay out what they include.

As a reminder, Ohr is a top DOJ expert on Russian organized crime. He has known Christopher Steele since 2007 and Ohr’s wife — who is an expert on Russia — did some work for Fusion GPS during the election that was related to, but not part of, Steele’s work for Fusion. Ohr and Steele had conversations in 2016 about a range of things, including Oleg Deripaska (for whom Steele was doing work and who Steele trusted far more than he should have), Russian doping, and Trump’s ties to Russia.

Starting on July 30, 2016 and continuing through November 2017, Steele shared first his Trump-related information with Ohr, and then his concerns about how his dossier was all blowing up, including his concern for at least one of his sources. After Steele was cut off as a paid source in November 2016, FBI had Ohr communicate with Bill Priestap, who was a top counterintelligence person at FBI, whenever he spoke with Steele as a way to stay in touch with the former British intelligence officer, at first as part of vetting the dossier, and later to monitor where he was at.

This release of 302s is partial (though that’s based on Judicial Watch’s request, not FBI’s response). It doesn’t include any record of Ohr’s conversations with FBI and DOJ prior to November 22, 2016 (which include at least an early August meeting with Andrew McCabe and Lisa Page and a fall meeting with Page, Peter Strzok, Andrew Weissmann, Zainab Ahmad, and Bruce Swartz). It also doesn’t include Ohr’s communications after May 2017. Thus, it explicitly would exclude any information about how Mueller treated the dossier, details of what FBI and Steele did to try to limit Congress’ investigation into the role of the dossier, and whether and how FBI investigated possible false statements from Steele and (especially) Glenn Simpson.

In addition, while DOJ already released a lot of the backup to this (including Ohr’s communications with Steele and Simpson and some but not all of his notes), Judicial Watch has apparently not posted something DOJ already provided them, which is a file “Manafort Chronology” that JW received in an earlier lawsuit (I’ve asked JW for that file; they say they’re still processing it, even though they received it before these 302s). That document would presumably make it clear (as if the investigative team Ohr met with didn’t already) that more of what Ohr passed on to FBI from Steele before the election would pertain to Manafort, not Carter Page.

These meetings covered by the 302s seem to be broken into three groups:

  • November 22 to December 20: FBI’s review of Steele’s reporting process and collection of relevant materials
  • January 25 to February 14: Steele and Simpson express their panic in the aftermath of the dossier publication to Ohr
  • May 8 to 15: Steele’s panic about Congress increases, FBI offers to set up an FBI contact

November 22, 2016

This meeting was obviously an introductory meeting between Ohr and Priestap. He describes how he first met Steele (which partly redacted here but not redacted in his testimony to HJC/OGR). There’s a redacted comment that probably reflects Ohr’s view of Steele’s sources. That probably pertains to one or more oligarchs, because Ohr then explains his own opinion about the willingness of oligarchs to share information; this paragraph has been redacted because of an ongoing investigation, as has the paragraph describing Ohr’s summary of his meeting with Steele in July 2016 (which Ohr told McCabe about within days). There’s a reference to these notes from July (see PDF 31)

When these notes were released in December 2018, both the source for the “over a barrel” comment and Deripaska’s threats against Manafort were protected for ongoing investigation; at least in this paragraph, some of both are unsealed.

Ohr then explains what he knew about the Fusion GPS oppo research project, including that Simpson was passing the information on to “many individuals or entities.”

It’s clear that Ohr was asked about Michael Isikoff’s Yahoo article on Carter Page. Ohr described meeting with Simpson and Steele around that time, but his focus was instead on the Alfa Bank server allegation, which I’l return to.

Pristap also must have asked Ohr whether Steele made up his allegations, which Ohr said he did not believe Steele had done. Ohr explained that “there are always Russian conspiracy theories that come from the Kremlin.” He stated that he believed that Steele was just reporting what he heard, “but that doesn’t make that story true.”

Ohr was also asked about Jon Winer and whether he knew how Steele handled his sources, as well as for contact information for someone, probably Steele.

December 5

Several weeks after the initial meeting, Priestap interviewed Ohr again with follow-up questions about the dossier. He appears to reveal that he never was present when Steele interviewed a source (though there was a meeting he described). He says he was never present for meetings between Steele and Jon Winer. He described his wife Nellie’s research for Simpson. And he explained that Simpson directed Steele to “speak to the press as that was what Simpson was paying” him to do. Priestap apparently asked if Steele went to David Corn on his own or at the direction of Simpson, which Ohr did not know the answer to.

At that meeting, Ohr handed over the “Manafort Chronology” (which may or may not be Nellie’s work), which is the document JW may not have released yet.

December 12

Ohr met with Simpson on December 10 and obtained a copy of the dossier on thumb drive, so met with Priestap to share that and his notes from that meeting (see PDF 32).

At the meeting, Simpson told Ohr the Michael Cohen allegations (though these should and do appear to be the dated October allegations). Simpson shared gossip about some former Trump person (he thought it was Rick Wilson, but Wilson denied it yesterday) who was concerned about Trump’s ties to Russia. He raised Aleksandr Torshin’s outreach to the NRA and shared this article on it, even while noting there was disagreement on his staff about how much money Russia was funneling to the NRA. Simpson disputed NYT’s doubts about the Alfa Bank server (either Priestap or Simpson got the date of the article wrong); in response to an Ohr question about whether he thought he was safe, Simpson said someone had called and “asked him to find out where all of the Alfa Bank stories were coming from.” Simpson told Ohr he still had concerns about Sergei Millian and noted, “Looking at Millian led Simpson’s company to Cohen” (which Simpson would later share with Congress).

Simpson admitted that he asked Steele “to speak to the Mother Jones reporter as  it was Simpson’s Hail Mary attempt.” Note this means that after Priestap asked Ohr who decided to contact Corn, Ohr asked Simpson, and then passed on the answer. From this point forward, Ohr was basically providing FBI information on the Fusion effort.

Finally, Simpson appeared to suggest that much of Steele’s reporting comes from one source but “Simpson does not know his name.” This also seems to be a question Ohr posed after having been asked about it by Priestap. There are almost entirely redacted notes at PDF 33 listing “possible intermediaries” attributed to Simpson, but it’s unclear if Ohr took those notes at that meeting.

December 20

Several weeks after he said he would do so, Ohr met with Priestap and shared Nellie Ohr’s research for Fusion on a thumb drive.

January 23

On January 20, Simpson contacted Ohr in a panic about one of Steele’s sources. The following day, Ohr and Steele spoke about the concerns. The description of those concerns are treated, among other redactions, as legally classified information. The description of what appears to be the person in Ohr’s notes released last year is protected as part of an ongoing investigation (PDF 34-35). One thing Steele told Ohr, though, was that he knew the person was alive and well because he had posted on Facebook.

On the January 21 call, Steele also told Ohr he had spoken with someone in John McCain’s office sometime “prior to October 2016.” Either he’s only telling Ohr part of the story, or the date is wrong, because Steele’s known contacts related to McCain were in December.

January 25

Several days later, Ohr reached out to Priestap again to update him on what Steele had said in a followup. In that call either Steele or Ohr suggested the person might be exposed because of journalists. (PDF 36)

January 27

Several days later Ohr updated Pristap on his latest WhatsApp contact with Steele.

February 6

A few weeks later, Steele called about two things. First, the firing of Sally Yates led him to believe he needed another contact in case Ohr was fired; Priestap asked Ohr to ask Steele if he’d feel comfortable going through the FBI. He also seemed to be passing on information from someone, probably Deripaska, complaining that because of the 2016 election the FBI considered him a “criminal.” There’s a redacted section, and all this redacted information is protected as an ongoing investigation.

At the same meeting, Ohr offered up that Kathleen Kavalec, who was briefing allies on possible Russian tampering in their elections, had also met with Steele several times before the 2016 election. Ohr said that she said Steele’s reporting was generated mainly from [redacted]; which either pertains to a named source or from a reporting source.

February 14

This was mostly a follow-up reporting on a February 11 FaceTime chat with Steele, though Steele described working for two attorneys, one of whom appears to be redacted as part of an ongoing investigation in Ohr’s notes (PDF 37).

Ohr told the FBI he had not yet asked Steele if he’d be comfortable working through an FBI agent.

Note: There are March WhatsApp texts and written notes Ohr took with no corresponding 302. They pertain to Steele’s concerns about Congressional inquiries.

May 8

Ohr reported on a May 3 WhatsApp call with Steele, in which he expressed concerns about Congress’ scrutiny of his role. Steele also told Ohr that Simpson would be heading over to the UK soon and was lawyering up. But he still offered additional information to the FBI, if it was interested. Note, this is the first 302 where a normal listing of both interviewers is used, though there are indications elsewhere that Priestap was accompanied by someone else.

May 12

Ohr reports on a May 10 WhatsApp call in which Steele tells him the Senate Intelligence Committee is seeking information. The FBI asks Ohr to ask if Steele is willing to “have a conversation” with FBI agents in the UK, and Ohr agrees to pass it on.

May 15

After meeting with the FBI on May 12, Ohr contacted Steele to find out whether he’d be willing to talk to the FBI — “nothing more than a conversation with the FBI;” three days alter he said he would.

Steele also said he had information on a conversation between two people.

Questions for Robert Mueller (and His Prosecutors) that Go Beyond the Show

I generally loathe the questions that people are drafting for Robert Mueller’s July 17 testimony before the House Judiciary and Intelligence Committees, largely because those questions are designed for a circus and not to learn information that’s useful for understanding the Mueller investigation. Here are the questions I’d ask instead (I’ll update these before Mueller testifies).

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey). Did the approach of the investigation change later in the process to immediately refer such issues to other offices (for example, Michael Cohen’s hush payments and graft)? If the approach changed, did your team or Rod Rosenstein drive this change? Is the Mystery Appellant related to a country other than Russia?
  6. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  7. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  8. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  9. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  10. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact Manafort’s DC trial might have play into the decision?
  11. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  12. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  13. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  14. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  15. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and Mystery Appellant) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  16. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  17. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  18. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  19. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  20. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  21. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  22. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  23. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  24. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  25. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  26. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  27. How many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  28. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  29. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  30. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Lisa Page Confirms that the Trump Campaign Investigation Was Different than Russian Info Ops Investigation

In her interviews, Lisa Page confirms something I keep explaining, only to have people try to correct me. The Russian investigation into Trump’s campaign that got started in July 2016 did not, at first, include the GRU and Internet Research Agency activity that later got subsumed into the Mueller investigation. In her first interview, Page makes this clear in a response to John Ratcliffe insinuating, incorrectly, that reference to Obama’s interest in the FBI’s activities must be an attempt to tamper in the Clinton investigation.

Mr. Ratcliffe. Let me move on to a text message on September 2nd of 2016. It’s a series of texts that you exchanged with Agent Strzok. And at one point you text him: Yes, because POTUS wants to know everything we are doing.

[snip]

Ms. Page. It’s not about the Midyear investigation, if that’s the question. It has to do with Russia. It does not have to do with the Clinton investigation at all.

Mr. Ratcliffe. Okay. It does have to do with Russia, the Russia investigation?

Ms. Page. No, not the Russia investigation. It has to do with the broader look at Russian active measures.

She again makes that distinction regarding an August 5, 2016 text Strzok sent her.

Kim: Mr. Strzok wrote to you, quote: And hi. Went well. Best we could have expected other than, redacted, comma, quote, the White House is running this. Next text you stated–

Page: Yep.

Kim: –or, sorry, next text he stated, my answer, well maybe for you they are. And in response to these texts you wrote, yeah, whatever, re the White House comment. We’ve got emails that say otherwise. Do you remember what this meeting was about?

[snip]

Page: It is about — again, like the last time, it is about the broader intelligence community’s investigation of Russian active measures.

Kim: And not about the specific Russian collusion investigation?

Page: Definitely not.

In her second interview, Page was asked about whether Trump was included in the investigation during fall 2016, and Page describes the investigation at that point as “narrowly scoped.”

Kim: When we talk about the Russia collusion investigation in this timeframe, candidate Donald Trump is not the subject of that investigation, is that correct?

Page: That’s correct.

[snip]

So it was a very narrowly scoped, very discrete investigation because we understood the gravity of what it was we were looking at and we were not going to take a more extreme step than we felt we could justify.

Mark Meadows tries to suggest that the White House got briefed on the Trump investigation, and she corrects him.

Meadows; I think early on, August 5th, there’s the first original what we called at that time the Russia investigation briefing that happened. Peter Strzok comes back from [London], makes it just in time for you to have that. There’s a briefing that occurs on August 8th. And there’s a briefing with Denis McDonough at the White House where Jonathan Moffa and others attended.

[snip]

Page: But those were not about the Crossfire. To the best of my knowledge those were not —

Meadows: So they had nothing to do with any potential collusion between Russia and the Trump campaign? That was never mentioned?

Page: Not to my knowledge. It was always about the Russian active measures effort.

I keep harping on this point for several reasons. First, because when Republicans imagine — as they do here — that every negative comment Page and Peter Strzok made about a Russian investigation reflects bias against Donald Trump, they are unintentionally arguing that any criticism of Russian hacking by definition is a criticism of Trump. Meanwhile, they’re not considering why — sometime well after the Mueller investigation started — the Special Counsel had reason to subsume these other investigations.

But the problem with this misconception extends, too, to supporters of Mueller’s investigation. That’s because by conflating the larger counterintelligence investigation into Russian active measures with the more narrowly scoped (using Page’s description) investigation into Trump’s aides, the misinterpret the degree to which Mueller’s investigation stems from predicated investigations against individuals.

But don’t take my word for it. Take Lisa Page’s word for it.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

About the Two Investigations into Donald Trump

I’m still pretty cranky about the timing and form of Andrew McCabe’s publicity tour.

But since it’s out there, I’d like to comment on three details, two of which have gotten significant comment elsewhere.

Trump wanted Rod Rosenstein to include Russia in the reasons he should fire Comey

The first is that Trump specifically asked Rosenstein to include Russia — McCabe doesn’t further specify what he meant — in the letter recommending he fire Jim Comey.

McCabe says that the basis for both investigations was in Mr. Trump’s own statements. First, Mr. Trump had asked FBI Director Comey to drop the investigation of National Security Adviser Michael Flynn, who has since pleaded guilty to lying to the FBI about his Russian contacts.  Then, to justify firing Comey, Mr. Trump asked his deputy attorney general, Rod Rosenstein, to write a memo listing the reasons Comey had to go. And according to McCabe, Mr. Trump made a request for that memo that came as a surprise.

Andrew McCabe: Rod was concerned by his interactions with the president, who seemed to be very focused on firing the director and saying things like, “Make sure you put Russia in your memo.” That concerned Rod in the same way that it concerned me and the FBI investigators on the Russia case.

If Deputy Attorney General Rosenstein listed the Russia investigation in his memo to the White House, it could look like he was obstructing the Russia probe by suggesting Comey’s firing. And by implication, it would give the president cover.

Scott Pelley: He didn’t wanna put Russia in his memo.

Andrew McCabe: He did not. He explained to the president that he did not need Russia in his memo. And the president responded, “I understand that, I am asking you to put Russia in the memo anyway.”

When the memo justifying Comey’s firing was made public, Russia was not in it. But, Mr. Trump made the connection anyway, telling NBC, then, Russian diplomats that the Russian investigation was among the reasons he fired Comey.

The most obvious explanation for this is that Trump wanted to box DOJ in, to prevent them from expanding their investigative focus from one campaign foreign policy advisor, a second campaign foreign policy advisor, his former campaign manager, his National Security Advisor, and his lifelong political advisor to the one thing those five men had in common, Trump.

But it’s also possible that Trump wanted Rosenstein to do what Don McGahn had narrowly prevented Trump from doing, effectively shifting the obstruction to Rosenstein. That seems like what Rosenstein was worried about, an impression he may have gotten from his instructions from McGahn, laying out the case that investigating Russia would get you fired.

It’s possible, too, that Trump was particularly interested in the public statement for the benefit of the Russians, a view supported by the fact that Trump made sure he fired Comey before his meeting with Sergey Lavrov and Sergey Kislyak, and then stated that he had more freedom with Comey gone. That is, it’s possible he needed to prove to the Russians that he could control his own DOJ.

The order to Rosenstein was one of the predications for the investigation into Trump

McCabe elaborates on a story told at least partly by the Peter Strzok-Lisa Page texts: that the day after Trump fired Comey, FBI moved to open two investigations into Trump. A number of people have suggested McCabe just vaguely pointed to Trump’s statements, but he’s more specific than that. One of the statements was that order to Rosenstein to include Russia in the firing memo.

Scott Pelley: How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president?

Andrew McCabe: I think the next day, I met with the team investigating the Russia cases. And I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward. I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion that were I removed quickly or reassigned or fired that the case could not be closed or vanish in the night without a trace.

[snip]

Andrew McCabe: There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt…

President Trump on Feb. 16, 2017: Russia is a ruse. I have nothing to do with Russia. Haven’t made a phone call to Russia in years.

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

As McCabe describes it, the other things are obstruction-related: Trump’s attacks on the Russian investigation.

But remember, McCabe had heard the substance of Mike Flynn’s comments to Sergei Kislyak. The rest of us have seen just outlines of it. In some way, Mike Flynn convinced Sergei Kislyak on December 29, 2016, that Russia had Trump’s assurances on sanctions relief. Trump may well have come up specifically. In any case, the FBI would have had good reason — from Flynn’s lies, and his call records showing his consultations before he lied — to suspect Trump had ordered Flynn’s statements to Kislyak.

McCabe describes the genesis of the obstruction and the counterintelligence investigation

Finally, McCabe provides additional details to the dual investigation into Trump: the obstruction one arising out of Trump’s efforts to kill the Russian investigation, and the counterintelligence one into whether Trump was doing that at Russia’s behest (which goes back to my initial point, that Trump may have wanted Russia included in the firing memos as a signal to Russia he could kill the investigation).

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

Scott Pelley: What was it specifically that caused you to launch the counterintelligence investigation?

Andrew McCabe: It’s many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

Scott Pelley: Are you saying that the president is in league with the Russians?

Andrew McCabe: I’m saying that the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.

With that laid out, I’d like to look at Rod Rosenstein’s August 2 memo laying out precisely what Mueller was — and had, from the start — been authorized to investigate, which both Paul Manafort and the President’s flunkies in Congress spent a great deal of effort trying to unseal. Knowing as we now do that the redacted passages include at least one and probably two bullet points relating to Trump himself, it seems more clear than every that once you lay out the investigations into Trump’s flunkies known to have been predicated at the time, that’s all that would have been included in the memo:

  • Obstruction investigation into Trump
  • Counterintelligence investigation into Trump
  • Election conspiracy investigation into Manafort
  • Ukrainian influence peddling investigation into Manafort
  • Transition conspiracy investigation into Flynn
  • Turkish influence peddling investigation into Flynn
  • Counterintelligence investigation into Carter Page
  • Election conspiracy investigation into George Papadopoulos
  • Election conspiracy investigation into Roger Stone

At that point, there wouldn’t have been space for at least two of the three bullets that now exist on a scope memo, as laid out by Jerome Corsi’s draft plea (though “c” may have been there in conjunction with Stone).

At the time of the interview, the Special Counsel’s Office was investigating the Russian government’s efforts to interfere in the 2016 presidential election, including:

a. the theft of campaign-related emails and other documents by the Russian government’s Main Intelligence Directorate of the General Staff (“GRU”);

b. the GRU’s provision of certain of those documents to an organization (“Organization 1”) for public release in order to expand the GRU’s interference in the 2016 U.S. presidential election campaign; and

c. the nature of any connections between individuals associated with the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) and the Russian government or Organization 1.

That’s another to believe — as I have long argued — that bullets a and b got moved under Mueller at a later time, probably around November 2017. After Flynn flipped, the Middle Eastern pass-through corruption would likely have been added, and inauguration graft probably got added after Rick Gates flipped (before the non-Russian parts of both got spun off).

One thing that means, if I’m correct, is that at the time Mueller was hired, the investigation consisted of predicated investigations into probably six individuals. While there would have been a counterintelligence and criminal aspect to both, there was a criminal aspect to each of the investigations, with specific possible crimes envisioned. If that’s right, it means a lot of hot air about Mueller’s appointment simply misunderstood what part of Comey’s confirmed investigation got put under Mueller at first.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In any case, the certainty that there are at least one and probably two bullets pertaining to Trump in that August 2 memo is interesting for a few more reasons.

It makes it far more likely that the Strzok 302 — based on a July 19, 2017 interview, drafted the following day, and finalized August 22 — was an effort to formalize Mueller’s authorization to investigate the President. The part of the 302 that pertains to Mike Flynn’s interview takes up the middle third of the report. The rest must lay out the larger investigations, how the FBI found the intercepts between Flynn and Kislyak, and what the response to the interview was at DOJ.

The 302 is sandwiched between two events. First, it follows by just a few weeks the release of the June 9 meeting emails. Indeed, the interview itself took place on the day the NYT published the interview where Trump admits he and Putin spoke about adoptions — effectively making it clear that Putin, not Trump, drafted a statement downplaying that the meeting had established a dirt-for-sanctions relief quid pro quo.

The 302 was also drafted the day before Mueller started pursuing the transition emails and other comms from GSA that would have made it clear that Trump ordered Flynn’s statements and key members of the transition team knew that.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

It also happens to precede, by days, when Michael Horowitz would inform Christopher Wray and then Mueller about the Page-Strzok texts, though that is almost certainly an almost unbelievable coincidence.

In any case, as I’ve noted, unsealing that August 2 memo has been like a crown jewel for the obstructionists, as if they knew that it laid out the investigation into Donald Trump. That effort has been part of a strategy to suggest any investigation into Trump had to be improper, even one investigating whether he engaged in a quid pro quo even before the General Election started, trading US policy considerations — starting with, but not limited to, sanctions relief — in exchange for help getting elected.

The obstructionists want to claim that an investigation that started with George Papadopoulos and then Carter Page and then Mike Flynn (the obstructionists always seem to be silent about Paul Manafort and Roger Stone, as if they knew who engaged in substantive conspiracy with the Russians) should not end up with Donald Trump. And they do so, I think, to suggest that at the moment it discovered that quid pro quo in July 2017, it was already illegitimate.

But as McCabe said, “the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.”

It just turned out that Trump was guilty.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

FBI Finally Moves to Fix Its Text Retention Problem — and Mobile Phone Security

Back when DOJ IG released a report explaining its efforts to ensure it had reconstructed all of Peter Strzok and Lisa Page’s text messages, I pointed out that most people were missing the really important part of the story: FBI was making do with a vendor who — even after that scandal — still missed 10% of texts.

And in trying to invent an obstruction claim out of normal bureaucratic thriftiness, they are ignoring the really damning part of the IG Report. The government contractor whose “bug” was responsible for the text messages that weren’t originally archived (but which were later recovered) still can’t ensure more than 90% of FBI’s texts are recovered.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This is a huge problem in discovery in criminal prosecutions. Just as an example, DOJ claims it didn’t have texts between the Agents who were officially staking MalwareTech out in Las Vegas before they arrested him in 2017 and … other Agents. But if FBI doesn’t actually competently archive those texts, how can they make that claim?

More troubling still, FBI didn’t have a handle on what privileges their unnamed and squirrely data retention vendor had onto FBI Agents’ phones.

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

DOJ IG has now done what I was hoping they would: use the Strzok-Page incident as an opportunity to identify recommendations to fix the problem more generally. Most alarmingly, it says that the Subject Matter Expert it consulted in this process identified security vulnerabilities in its collection process.

[D]uring the OIG’s forensic examination of FBI mobile devices that were used by the two employees, the OIG discovered a database on the mobile devices containing a plain text repository of a substantial number of text messages sent and received by those devices.

Neither ESOC nor the vendor of the application was aware of the existence, origin, or purpose of this database. OIG analysis of the text messages in the database compared to ESOC productions of text messages during the same time periods when the collection tool was functional identified a significant number of text messages found in the database that were missing from the ESOC production. Furthermore, the Subject Matter Expert with whom the OIG consulted in connection with its forensic analysis of the devices identified additional potential security vulnerabilities regarding the collection application. The OIG has provided these findings to the FBI.

Remember: these phones were used by people read into the most sensitive counterintelligence investigations. They weren’t texting a lot about those investigations on those phones, but they were texting unclassified information about the investigations.

So now, two years after these texts were identified, DOJ’s Inspector General is recommending that FBI fix what even I recognized was a security vulnerability — as well as the other, unnamed ones their SME identified.

Coordinate with the collection tool vendor to ensure that data collected by the tool and stored on the device is saved to a secure or encrypted location.

Verify and address the security vulnerabilities identified by the Subject Matter Expert with whom the OIG consulted, which have been provided to the FBI. Current and future mobile devices and data collection and preservation tools should be tested for security vulnerabilities in order to ensure the security of the devices and the safekeeping of the sensitive data therein.

Accused defendants should not have to guess whether or not the FBI Agents investigating them discussed their case via texts that have disappeared forever. And the country, generally, should not have to worry that the phone of its top counterintelligence Agent might be compromised because of a dodgy vendor FBI hired to collect (some of) his texts.

Sadly, DOJ IG doesn’t include another recommendation that seems like a no-brainer: that FBI switch to iPhones over the Samsungs they currently issue, both because iPhones have better security, but also because there is better visibility on the supply chain.