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Mike Flynn Seizes the Rope to Hang Himself With: Flynn’s Motion to Dismiss Carter Page’s Non-Existent Plea

As I noted yesterday, Mike Flynn’s legal team and the government submitted a bunch of filings yesterday.

I’m collectively titling my posts on them, “Mike Flynn Seizes the Rope to Hang Himself,” which is the advice Rob Kelner gave his then-client in December 2018 when Judge Emmet Sullivan swore him in to reallocute his guilty plea, effectively arguing that if Flynn withdrew his plea, it would lead to worse consequences. Flynn’s current lawyer, Sidney Powell, argues that advice was objectively incompetent. I predict the outcome of the next few weeks will show Kelner had the better judgment.

This post from yesterday covers the government reply to Flynn’s sentencing memo.

This post will focus on Flynn’s motion to dismiss for misconduct, a 27-page motion that Flynn submitted yesterday with neither warning nor pre-approval from Sullivan. Flynn has made much of this argument before (and Sullivan has rejected it) in a filing that argued,

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. When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime—while taking affirmative steps to ensnare him by refusing to follow procedures designed to prevent such inadvertent missteps—this amounts to conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct.

[snip]

As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

In a footnote in yesterday’s filing, Flynn lawyer Sidney Powell explains that, no, the last time she tried this argument, which Sullivan rejected in an unbelievably meticulous 92 page opinion, wasn’t actually her motion to dismiss, this is,

Contrary to a suggestion in this Court’s recent opinion, Mr. Flynn did not previously move to dismiss the case against him. ECF No. 144 at 2. As the docket sheet and this Court’s recital of motions show, this is Mr. Flynn’s only Motion to Dismiss. In Mr. Flynn’s previous filings, he made clear he would ultimately move for dismissal, that the evidence requested in his Brady motion would further support the basis for dismissal, and that the case should be dismissed.

Particularly given that much of this repeats what Powell said in the earlier motion, the claim that this is the real motion to dismiss probably won’t sit well with Judge Sullivan. But Powell has to try again, because (as I’ll show) her motion to dismiss doesn’t actually claim that Flynn is innocent of lying to the FBI about his call with Sergey Kislyak — he says the opposite. So this motion to dismiss appears designed to explain why Flynn should not be held accountable for that lie.

Powell justifies doing so because she claims she found new damning information in the IG Report on Carter Page. (She also complains that she received Flynn’s 302s since the prior motion, but presents not a single piece of evidence from them; as I’ll show in my third post on these filings, she’s probably going to regret raising them.)

Such exculpatory evidence and outrageous misconduct includes that on December 9, 2019, the Inspector General of the Department of Justice (“DOJ”) issued its 478-page report on the “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” (“IG Report”).2 The IG Report illustrates the misconduct by the government as further detailed below.

[snip]

Additionally, the IG Report shows that the government long suppressed evidence of shocking malfeasance by the leadership of the FBI and Supervisory Special Agent 1 (“SSA 1”) that was favorable to Mr. Flynn’s defense. For these reasons, and those outlined in prior briefing, Mr. Flynn moves to dismiss this entire prosecution for outrageous government misconduct and in the interest of justice.

In a probably ill-considered move, Powell blames Sullivan for not considering the IG Report in his previous opinion.

Despite the defense, the government, and this Court agreeing to abate the schedule in this case because of the pending and admittedly-relevant IG Report (ECF No. 140 and this Court’s Minute Order of November 27, 2019), this Court denied Mr. Flynn’s Motion to Compel Production of Brady Evidence without allowing for additional briefing in light of that report or considering any of the deliberate government misconduct it disclosed. ECF Nos. 143 and 144. Mr. Flynn now moves to dismiss the indictment for the additional egregious misconduct documented in the IG Report, other recently produced materials, all previously briefed issues, and in the interest of justice.

A week passed between the time the IG Report came out — which has just one small section relating to Flynn — and the date Sullivan issued his opinion. It is Powell’s job to ask him to consider any new information in it, not his job to cull through the report and find out if anything is relevant. She did not do so. Which is one of many reasons why Sullivan would be in his right to just dismiss this as untimely.

As I note in this thread, much of what follows is either a repetition of complaints that Sullivan already rejected or a claim that Mike Flynn, honored General of thirty years, is actually Carter Page, maligned gadfly, because they describe things that did injure Page but did not injure Flynn and are utterly irrelevant to the lies Flynn told on January 24, 2017.

  • Asks that Sullivan rely on a Ninth Circuit opinion on the Bundy family to reconsider Brady violations he already ruled did not happen.
  • Revisits a Jim Comey comment that was briefed before Flynn pled guilty the last time and Powell’s conspiracy theories about a draft 302 that she claims differs from the notes and the released 302s which are all consistent.
  • Invokes Ted Stevens by invoking the Henry Shuelke report, which laid out problems with the Senators prosecution, but which Sullivan has already said is an inapt comparison.
  • Mixes up the 2017 FISA order that shows (in part) that Flynn, personally, presided over FISA abuses with the 2018 FISA order that shows Chris Wray’s FBI committed querying violations that affected thousands (quite possibly in an attempt to find out who leaked details of Flynn’s comments to Sergei Kislyak).
  • Claims that the Carter Page FISA allowed the FBI to illegally obtain the communications of “hundreds of people, including Mr. Flynn,” which is a claim that doesn’t show up in the IG Report (Powell cites to it “generally,” which is her tell in this motion that she’s making shit up); while it’s possible emails from the campaign (possibly group emails on National Security) involving both Page and Flynn were collected, there is zero chance any of them pertain to the lies Flynn told on January 24, 2017. Moreover, there is virtually no chance that Flynn was communicating with Carter Page after April 2017 via encrypted messaging apps — months after both had been ousted from Trump’s circles because of their problematic interactions with Russians — which is what it likely would have taken to have been collected under the applications deemed problematic by FBI.
  • Twice claims that Flynn’s obligation (which he fulfilled) to tell DIA when he went traipsing off to RT Galas in Russia equates to CIA’s designation of Carter Page as an acceptable contact and notes that Sullivan already ruled that wasn’t exculpatory on the charges before him (the government has made it clear Flynn’s DIA briefing was actually inculpatory).
  • Claims SSA1 — whom Powell asserts, probably but not necessarily correctly, is the second Agent who interviewed Flynn — supervised Crossfire Hurricane, but doesn’t note that was only until December 2016, at least four weeks before Flynn lied to FBI agents on January 24, 2017; Powell repeatedly claims, falsely, that SSA1 supervised Crossfire Hurricane during the entire period when Carter Page was under surveillance.
  • Insinuates, with no evidence, that SSA1 knew that Case Agent 1 had excluded comments from George Papadopoulos that the frothy right believes are exculpatory but which the FBI judged correctly at the time were just a cover story.
  • Claims falsely that Lisa Page had a role in opening an investigation into Flynn.
  • Complains that the FISA applications made statements about Stefan Halper that were true but not backed by paperwork in the Woods File, even though (contrary to Flynn’s conspiracy theories) Halper never spoke with Flynn as part of tihs investigation.

Pages and pages into this, Powell admits that actually all of this would matter if she were representing Carter Page, but she claims (with no evidence, and given the scope of the Page warrants, there would be none) that it nevertheless injures her client.

While Mr. Flynn’s case is not even the focus of the IG Report, the Report reveals illegal, wrongful, and improper conduct that affected Mr. Flynn, and is the subject of an ongoing criminal investigation by United States Attorney John Durham.

Even where the IG Report does describe something that affected Flynn directly — in SSA1’s inclusion in Trump’s first briefing, in part, to see what kinds of questions he was asking — Powell manages to lard it with false claims. On top of misrepresenting how long SSA1 oversaw the investigation into Trump’s flunkies (noted above and exhibited specifically below), Powell suggests that SSA1 snuck into the August 17, 2016 intelligence briefing Flynn attended as Trump’s top national security advisor and had no purpose but to observe her client.

There were two FBI agents who interviewed Mr. Flynn in the White House on January 24, 2017—Agent Peter Strzok and SSA 1. The IG Report confirms both participated in government misconduct. As explained in further detail below, not only was Strzok so biased, calculated, and deceitful he had to be terminated from Mueller’s investigation and then the FBI/DOJ, but it has also now been revealed that SSA 1 was surreptitiously inserted in the mock presidential briefing on August 17, 2016, to collect information and report on Mr. Trump and Mr. Flynn. Moreover, SSA 1 was involved in every aspect of the debacle that is Crossfire Hurricane and significant illegal surveillance resulting from it. Further, SSA 1 bore ultimate responsibility for four falsified applications to the FISA court and oversaw virtually every abuse inherent in Crossfire Hurricane— including suppression of exculpatory evidence. See generally IG Report.

[snip]

Shockingly, as further briefed below, SSA 1 also participated surreptitiously in a presidential briefing with candidate Trump and Mr. Flynn for the express purpose of taking notes, monitoring anything Mr. Flynn said, and in particular, observing and recording anything Mr. Flynn or Mr. Trump said or did that might be of interest to the FBI in its “investigation.” IG Report at 340

[snip]

More specifically, as the Inspector General explained further in his testimony to Congress on December 11, 2019, SSA 1 surreptitiously interviewed and sized-up Mr. Flynn on August 17, 2016, under the “pretext” of being part of what was actually a presidential briefing but reported dishonestly to others as a “defensive briefing.”

[snip]

Strzok and Lisa Page texted about an “insurance policy” on August 15, 2016.20 They opened the FBI “investigation” of Mr. Flynn on August 16, 2016. IG Report at 2. The very next day, SSA 1 snuck into what was represented to candidate Trump and Mr. Flynn as a presidential briefing. IG Report at 340. [my emphasis]

The overwhelming bulk of her complaint about this is that — she claims — SSA1’s participation was secret. Reading this motion, you’d think he was hidden under the couch while the briefing was conducted. His presence, of course, was in no way surreptitious. What was secret was that Flynn was under investigation and SSA1 was overseeing it.

In one of her discussions of the briefing, Powell quotes the part of the IG Report that refutes her suggestions that SSA1 was only in this briefing to observe Flynn.

In August 2016, the supervisor of the Crossfire Hurricane investigation, SSA 1, participated on behalf of the FBI in an ODNI strategic intelligence briefing given to candidate Trump and his national security advisors, including Flynn, and in a separate briefing given to candidate Clinton and her national security advisors. The stated purpose of the FBI’s participation in the counterintelligence and security portion of the briefing was to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S.’ However, we found the FBI also had an investigative purpose when it specifically selected SSA 1, a supervisor for the Crossfire Hurricane investigation, to provide the FBI briefings. SSA 1 was selected, in part, because Flynn, who would be attending the briefing with candidate Trump, was a subject in one of the ongoing investigations related to Crossfire Hurricane. SSA 1 told us that the briefing provided him ‘the opportunity to gain assessment and possibly some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview…I would have that to fall back on.’

As the passage she quotes makes clear, that was just part of the reason why he was selected. She doesn’t mention that, as a senior counterintelligence agent, SSA1 was appropriate to give the briefing in any case, and in fact did give the equivalent first briefing to Hillary, as well.

In one place, however, Powell totally misrepresents what the purpose of this briefing was claiming that it was the defensive briefing about specific threats to the candidate.

While SSA 1’s stated purpose of the presidential briefing on August 17, 2016, was “to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S,’” IG Report at xviii (Executive Summary), the IG Report confirmed that, in actuality, the Trump campaign was never given any defensive briefing about the alleged national security threats. IG Report at 55. Thus, SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for “investigative purposes” anything Mr. Flynn and Mr. Trump said in that meeting. IG Report at 408. The agent was there only because Mr. Flynn was there. IG Report at 340. Ironically, Mr. Flynn arranged this meeting with ODNI James Clapper for the benefit of candidate Trump.

As the IG Report makes clear, these are different things. The IG Report even provides several different explanations for why the FBI did not give Trump a defensive briefing that Russia was trying to influence his campaign, but which Powell doesn’t include. Andrew McCabe’s explanation was particularly prescient.

[T]he FBI did not brief people who “could potentially be the subjects that you are investigating or looking for.” McCabe told us that in a sensitive counterintelligence matter, it was essential to have a better understanding of what was occurring before taking an overt step such as providing a defensive briefing.

You couldn’t brief Trump on a potential Russian threat with Flynn present because Flynn was considered — because of his past close ties to the GRU and his paid appearances with Russian entities, including one where he met Putin — one of the most likely people for Russia to have alerted about the email hack-and-dump plan. And, as I noted, there was a bunch of language about counterintelligence issues in the government’s original sentencing memo specifically pertaining to Flynn that should concern him if he weren’t so busy producing fodder for the frothy right. So, in fact, the FBI was right to worry (and I suspect we may hear more about this).

Moreover, as this entire effort to blow up the plea deal emphasizes, Flynn turned out to be an egregious counterintelligence risk for other reasons, as well: the secret deal he was arranging with Turkey even as this briefing occurred, which he explained, at length, under oath, to the grand jury. That is, this proceeding makes it clear that the FBI was right not to trust Mike Flynn, because, days before this briefing, his firm had committed, in secret to working on a frenemy government’s payroll.

This is tangential to Powell’s trumped up complaints about the only thing the IG Report says that directly affected her client. But — as with so much of this stunt — my suspicion is that if she presses this issue it will backfire in spectacular fashion.

In any case, the main takeaway from this motion to dismiss the plea is that virtually all the new stuff that Judge Sullivan hasn’t already ruled was irrelevant in meticulous fashion doesn’t affect Mike Flynn, it affects Carter Page. And the stuff that does affect Flynn directly is probably not something he wants to emphasize before Sullivan weighs the gravity of his lies.

More importantly, for the motion to withdraw his plea, nothing here undercuts the fact that Mike Flynn pled guilty to his lies about Russia.

Nunes Memo v Schiff Memo: Neither Were Entirely Right

As I noted, I spent much of the last month wading through the DOJ IG Report on Carter Page. Back when the IG Report came out, a bunch of people — largely Devin Nunes flunkies — declared, incorrectly and apparently without close review, that the IG Report shows that Devin Nunes was right and Adam Schiff was wrong in their memos from 2018.

The reality is that both were talking past each other, with Nunes trying to make the Steele dossier stand in for and discredit the entire investigation, and Schiff trying to point out that the Steele dossier did not predicate the entire Russia investigation. Nunes made dishonest claims about the Ohrs and Comey’s briefing of the Steele dossier to Trump. Schiff wrongly defended the FBI’s treatment of the September 23, 2016 Michael Isikoff story and overstated the known reliability of the dossier at the time of the memo, to which additional details were added by the IG Report.

Schiff overstates both the predicted and actual efficacy of the FISA collection, which is something it’d be nice to see both parties return to. Though it has long been evident that the FBI and the IC generally often continues surveillance (and surveillance programs) past their point of usefulness, the Intelligence Committees do a piss poor job of challenging such collection.

Before I compare the two, though, consider that both memos came before almost a year of parallel investigations (one conducted by House Republicans, another conducted by the DOJ IG) into the process. Even Nunes was not aware when he wrote his memo of some of the problems identified in the IG Report. I say that with great confidence, not least because I spoke with a Republican who had read the FISA application closely months after the Nunes memo was written who told me there was so much else in Carter Page’s FISA application that approval of the application was not a close call even with concerns about the dossier; the person changed his opinion after that time. In other words, when both parties released a memo about the Carter Page application in early 2018, neither side knew of some of the problems revealed in the IG Report. That’s actually evident from the things Nunes does not complain about in his memo (though he may remain silent about Page’s past relationship with CIA for classification reasons), and it means some of Schiff’s assurances about the dossier have been proven inaccurate since.

This post will conduct a paragraph-by-paragraph assessment of the letters that uses the IG Report, with one key exception, as arbiter of accuracy. The exception is DOJ IG’s conclusions on (but not facts presented about) Bruce Ohr, as that is one area where DOJ IG can be shown to misrepresent the record.

Nunes Memo

¶1-4: The introductory paragraphs of the Nunes memo lays out when FBI obtained FISA orders on Page and who approved them. These details are true, though uncontroversial. From there, Nunes adopts an outline of allegations that are either less sound or inaccurate:

¶5 (marked as 1):

“The dossier was essential:”

The IG Report said the FBI lawyer said ” the Steele reporting in September ‘pushed it over’ the line in terms of establishing probable cause,” and generally the IG Report shows that FBI would not have initiated the FISA process without the dossier, though by the time the application was approved FBI had collected more damning information on Page.

The IG Report describes five things substantiated probable cause against Page:

  • Russia’s effort to influence the election
  • The Papadopoulos report
  • Page’s past history with Russia, including his Gazprom dealings, his serial recruitment by Russian intelligence officers, his comments about what he had told the FBI
  • The Steele allegations
  • His enthusiasm about being offered a “blank check” to start a pro-Russian think tank on his July trip to Russia

“Steele was a longtime FBI source:” Steele had been known to Bruce Ohr and Andrew McCabe via mutual interest in combatting organized crime since the 2000s. Ohr first introduced Steele to an FBI handler in 2010. He was formally opened as a CHS in 2013, though the two sides disagreed about the terms of that relationship.

Steele was paid over $160K, to obtain derogatory research: True, but not part of the IG Report. The Nunes memo doesn’t note that Steele was paid $95,000 by the FBI, none of it for dossier-related work.

¶ 6, 7 (marked as 1a and 1b): “Neither the initial applications nor the renewals disclose the role of the DNC, Clinton campaign, or any party/campaign in funding Steele’s efforts, even though the political origins of the Steele dossier were then known to senior DOJ and FBI officials:” The footnote disclosing this did not name any Democrat, but it wouldn’t have in any case. It did say that,

[Steele], who now owns a foreign business/financial intelligence firm, was approached by an identified U.S. person, who indicated to [Steele] that a U.S.-based law firm had hired the identified U.S. person to conduct research regarding Candidate #l’s ties to Russia (the identified U.S. person and [Steele] have a long-standing business relationship). The identified U.S. person hired [Steele] to conduct this research. The identified U.S. person never advised [Steele] as to the motivation behind the research into Candidate #l’s ties to Russia. The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate # 1 ‘s campaign.

The political origins of the dossier were suspected by senior FBI and DOJ officials before the first application. After that, they had far more specific knowledge of it, thanks largely to Bruce Ohr. The FBI did not disclose its enhanced understanding of the nature of the project in reauthorizations, though some of the people involved believed the initial footnote remained adequate.

“The FBI had separately authorized payment to Steele for the same information.” It wasn’t the same information. FBI authorized Steele to be paid if he completed taskings focused on the subjects of the investigation, but they offered that in the (false) expectation he’d offer them information exclusively. He was not, ultimately, paid for this.

¶8 (marked as 2): “The Carter Page FISA application also cited extensively a September 23, 2016, Yahoo News article by Michael Isikoff … This article does not corroborate the Steele dossier because it is derived from information leaked by Steele himself.

This entirely misstates the point of the Yahoo inclusion, which was to include Page’s denials.

Evans told the OIG that 01 included the reference to the September 23 Yahoo News article in the FISA application solely because it was favorable to Carter Page and not as corroboration for the Steele reporting in the application. According to Evans, the application’s treatment of the article was favorable to Page in three respects: (1) the application described statements in the article that the campaign distanced itself from Page and minimized his role as an advisor; (2) the application stated that Page denied the allegations in the news article in a letter to the Director; and (3) as described below, the application made clear that the people who financed Steele’s reporting were likely the same source for the information in the article.

While it is true that the FISA application did not attribute the quote to Steele (not even after FBI learned he had been the source from Bruce Ohr), the application did attribute it to Glenn Simpson.

Given that the information contained in the September 23rd News Article generally matches the information about Page that [Steele] discovered during his/her research, the FBI assesses that [Steele’s] business associate or the law firm that hired the business associate likely provided this information to the press.

¶9, 10 (marked as 2a and 2b): “Steele was suspended and then terminated as an FBI source for what the FBI defines as the most serious of violations–an unauthorized disclosure to the media of his relationship with the FBI. … Steele should have been terminated for his previous undisclosed contacts with Yahoo.”

This is correct, insofar as Steele was closed for cause because he disclosed that he had shared information with the FBI, which amounted to being a control problem.

Strzok told the OIG that the FBI closed Steele “because he was a control problem. We did not close him because we thought he was [a] fabricator.” According to Strzok, Steele’s decisions to discuss his reporting with the media and to disclose his relationship with the FBI were “horrible and it hurt what we were doing, and no question, he shouldn’t have done it.”

But there are more serious violations, such as breaking the law.

However, a CHS must be closed for cause “if t here is grievous action by the CHS or a discovery of previously unknown facts or circumstances that make the individual unsuitable for use as a CHS.”97 Reasons that justify closing a CHS for cause include commission of unauthorized illegal activity, unwillingness to follow instructions, unreliability, or serious control problems. 98

Also, Steele’s decision to share the information, while utterly stupid from a HUMINT standpoint, was not actually a violation of any warning the FBI had given him, since he disclosed information he had collected for someone else.

Steele’s handling agent said that Steele should have been closed for cause because of the attention he was attracting for himself, but he recognized that Steele was not leaking information he had collected for the FBI (and the IG Report didn’t find any orders that he not speak to the press, either).

Handling Agent 1 told us that he understood why Steele would believe in September 2016 that he did not have an obligation to discuss his press contacts with him given that: (1) Steele’s work resulted from a private client engagement; and (2) Handling Agent 1 told Steele on July 5 that he was not collecting his election reporting on behalf of the FBI. However, Handling Agent 1 ‘s view was that while it was obvious that Fusion GPS would want to publicize Steele’s election information, it was not apparent that Steele would be conducting press briefings and otherwise interjecting himself into the media spotlight. Handling Agent 1 told us that he would have recommended that Steele be closed in September 2016 if he had known about the attention that Steele was attracting to himself. According to Handling Agent 1, Steele should have had the foresight to recognize this fact and the professionalism to afford Handling Agent 1 an opportunity to assess the situation. However, we are unaware of any FBI admonishments that Steele violated by speaking to third parties, including the press, about work that he had done solely for his firm’s clients and where he made no mention of his relationship with the FBI.

[snip]

According to Handling Agent 1, while Steele appeared to follow the directions of Fusion GPS, he did not treat his other client – the FBI – fairly. According to Handling Agent 1, if Steele “had been straight with the FBI,” he would not have been closed as a CHS.

¶11 (marked as 3): Before and after Steele was terminated as a source, he maintained contact with DOJ via … Bruce Ohr.

This is true, but it was part of a 10 year relationship based on sharing information about organized crime, and this information included non-dossier related information on Trump (focused on Oleg Deripaska’s double game offers to offer evidence against Paul Manafort) and other Russian (including doping) and non-Russian matters.

The IG Report makes the same kinds of errors in its portrayal of Ohr as the FISA Application does about Page, effectively arguing Ohr should be disciplined for the kind of information sharing DOJ and FBI have insisted they need to encourage since 9/11.

Ohr said, “Steele said he ‘was desperate.'”

This is true, though the IG Report shows (but then misrepresents) that Ohr specifically said this was an ideological desperation, not a political one: “but was providing reports for ideological reasons, specifically that “Russia [was] bad;”

¶12 (marked as 3a): “During this same time period, Ohr’s wife was employed by Fusion GPS to assist in the cultivation of opposition research on Trump … the Ohrs’ relationship with Steele and Fusion GPS was inexplicably concealed from the FISC.”

This is dishonest. Nellie Ohr’s last day working as a contractor for Fusion was September 24, 2016, so she was no longer employed by Fusion at the time of the first Page application or at the time when Ohr was helping FBI vet the dossier. The IG Report does not say their relationship should have been disclosed to the FISC, nor should it have been, as Nellie Ohr’s research was a separate stream from Steele’s.

¶13 (marked as 4):

“corroboration of the Steele dossier was in its ‘infancy’ at the time of the initial Page application.”

This is true, but that is not unusual in the FISA context.

Evans and other witnesses told us that the fact that the source information in the FISA application had not yet been corroborated was not unusual in the FISA context

DOJ assessed the reliability of this information, for the first application, by assessing Steele’s reliability and including information on his subsources. His past as an MI6 officer gave him more credibility than other sources might have had. All the applications misstated what Steele’s handling agent had said about the degree to which his past reporting had been corroborated.

“a source validation report … assessed Steele’s reporting as only minimally corroborated.”

The source validation that found Steele’s reporting to be minimally corroborated was done in March 2017, after the first two FISA applications and the Trump briefing.

“Yet in early January 2017, Director Comey briefed President-elect Trump on a summary of the Steel dossier, even though it was–according to his June 2017 testimony–‘salacious and unverified.'”

This is an utterly dishonest attack. As noted, the validation review referred to here took place two months after Comey briefed Trump on the dossier. And Comey briefed Trump on it largely because it was salacious, out of desire to warn Trump about what was out there.

“McCabe testified … that no surveillance warrant would have been sought from FISC without the Steele dossier.”

McCabe said something different to the IG when asked about this quote and this discrepancy remains unresolved.

McCabe told us that he did not recall his exact testimony, but that his view was that the FBI would have “absolutely” sought FISA authority on Carter Page, even without the Steele reporting, based upon Page’s historical interactions with known Russian intelligence officers and the fact that Page told known Russian intelligence officers about the FBI’s knowledge of those interactions. However, McCabe also told us that he was not privy to the discussions that took place between attorneys in FBI OGC and Case Agent 1 on the sufficiency of the evidence to establish probable cause before the Crossfire Hurricane team received Steele’s election reports. McCabe said he could not speculate as to whether the FBI would have been successful in obtaining FISA authority from the FISC without the inclusion of the Steele reporting.

Schiff Memo

¶1-4: Introductory matter, including an assertion that ODJ would have been remiss if they had not sought a FISA warrant. The IG Report showed that while there was no question about investigating Page’s ties to Russia, there was some question about the efficacy of the FISA application.

According to Evans, he raised on multiple occasions with the FBI, including with Strzok, Lisa Page, and later McCabe, whether seeking FISA authority targeting Carter Page was a good idea, even if the legal standard was met. He explained that he did not see a compelling “upside” to the FISA because Carter Page knew he was under FBI investigation (according to news reports) and was therefore not likely to say anything incriminating over the telephone or in email. On the other hand, Evans saw significant “downside” because the target of the FISA was politically sensitive and the Department would be criticized later if this FISA was ever disclosed publicly.

¶5: “Steele’s raw intelligence reporting did not inform the FBI’s decision to initiate its counterintelligence investigation in late July 2016. In fact, the FBI’s closely held investigative team only received Steele’s reporting in mid-September.”

This is true. The FBI opened the investigation on July 31 based off the Australian tip, and the Crossfire Hurricane team only got the Steele dossier information on September 19.

¶6-7:

“Multi-pronged rational for surveilling Page” There were five things the first Page application used to establish probable cause, as noted above.

“no longer with the Trump campaign” True.

“narrow use of information from Steele’s sources about Page’s specific activities … did not otherwise rely on Steele’s reporting, including any ‘salacious’ allegations about Trump” This is a bit cynical, because while the FBI did not use all the reports they had gotten from Steele (including the pee tape allegation), the Page application used the specific references to Page plus more general allegations about cooperation between Russia and Trump.

Specifically, the following aspects of Steele’s Reports 80, 94, 95, and 102 were used to support the application:

  • Compromising information about Hillary Clinton had been compiled for many years, was controlled by the Kremlin, and the Kremlin had been feeding information to the Trump campaign for an extended period of time (Report 80);
  • During his July 2016 trip to Moscow, Carter Page attended a secret meeting with Igor Sechin, Chairman of Rosneft and close associate of Putin, to discuss future cooperation and the lifting of Ukraine-related sanctions against Russia; and a secret meeting with Igor Divyekin, another highly placed Russian official, to discuss sharing compromising information about Clinton with the Trump campaign (Report 94);
  • Page was an intermediary between Russia and the Trump campaign’s then manager (Manafort) in a “well-developed conspiracy” of cooperation, which led, with at least Page’s knowledge and agreement, to Russia’s disclosure of hacked DNC emails to Wikileaks in exchange for the Trump campaign’s agreement to sideline Russian intervention in Ukraine as a campaign issue (Report 95); 267 and
  • Russia released the DNC emails to Wikileaks in an attempt to swing voters to Trump, an objective conceived and promoted by Carter Page and others (Report 102).

“interaction with Russian officials during the 2016 campaign … FBI interviewed Page in March 2016.” It is both true that Page’s actual interactions with Russian officials — including the offer of an “open checkbook” to open a pro-Russian think tank during his July 2016 trip — and his comments to the FBI in March 2016 were part of the case for probable cause.

“DOJ also disclosed” It is true DOJ disclosed Steele’s prior relationship and the details of his termination as a source — though at first they incorrectly only said he had been suspended — but they did not supplement the application with details of the Fusion project as they became known after the first application.

¶8-10: Repetition of the opening blather.

¶11-13: The investigation was started based off Australia’s tip about Papadopoulos and by the time the Crossfire Hurricane team received dossier information on September 19, they had already opened investigations against 4 Trump people, Page, Papadopoulos, Flynn, and Manafort [the other three names of which are redacted]. That’s true. Here’s what the government told FISC about the Papadopoulos tip:

In or about March 2016, George Papadopoulos [footnote omitted] and Carter Page (the target of this application) were publicly identified by Candidate #1 as part of his/her foreign policy team. Based on reporting from a friendly foreign government, which has provided reliable information in the past … the FBI believes that the Russian Government’s efforts are being coordinated with Page and perhaps other individuals associated with Candidate #l’s campaign. In or about July 2016, the above-referenced friendly foreign government provided information to a senior official within the U.S. [government] regarding efforts made by the Russian Government to influence the 2016 U.S. Presidential election. Specifically, according to this information, during a meeting in or about April 2016 between officials of the friendly foreign government and George Papadopoulos … Papadopoulos suggested that Candidate #l’s campaign had received some kind of suggestion from Russia that Russia could assist with the anonymous release of information during the campaign that would be damaging to another candidate for U.S. President (Candidate #2). It was unclear whether Papadopoulos or the Russians were referring to material acquired publicly or through other means. It was also unclear from this reporting how Candidate #l’s campaign reacted to the alleged Russian offer. Nevertheless, as discussed below, the FBI believes that election influence efforts are being coordinated between the RIS and Page, and possibly others.

Note the Schiff memo supplements what the government told FISC and what FBI knew at the time with information from Papadopoulos’ plea deal, though by October 2016, the FBI had come to learn outlines of Papadopoulos’ interactions with Mifsud via an informant.

¶14: Details about the Page applications. As corrected these claims are true. The Schiff memo doesn’t list the judges, but they are:

  • September application: Rosemary Collyer, W appointee
  • January application: Michael Mosman, W appointee
  • April application: Anne Conway, Poppy appointee
  • June application: Raymond Dearie, Reagan appointee

Note that the Schiff memo describes both electronic surveillance and physical search; the IG Report hides the latter. The physical search authorization is important because that provided FBI authorization to obtain Page’s stored communications, including emails.

¶15: FISA was not used to spy on the campaign. True, but the use of physical surveillance would permit the FBI to obtain stored communication, and it’s not public whether the specific minimization procedures adopted by FISC limited the access to emails Page sent while on the campaign.

¶16-17: Page’s connections to Russian Government and intelligence officials. To the extent this information is public, this is largely true (though it’s probably more accurate to state that one of the Russians indicted, Victor Podobnyy, attempted to recruit Page, and he talked about it with a second). We now know, however, that an earlier attempted recruitment happened with the knowledge of CIA, and there’s no allegation that Page hid his willingness to share information with Russian intelligence officers until 2017. That raises problems for claims he was secretly working with Russian spies.

¶18: Page’s suspicious activity during the 2016 campaign. To the extent this is public, it does reflect what FBI told FISC. The memo doesn’t deal with real questions about the allegations about whom Page met with in Russia. There’s still no corroboration that Page met with anyone named Divyekin (indeed, Dmitry Peskov affirmatively chose not to set up a meeting for him with the Kremlin), but the IG Report reveals that the people who brought Page to Moscow provided RUMINT that he had met with Igor Sechin. The Mueller Report concluded Page’s activities in Moscow “were not fully explained.”

¶19: Subsequent renewals. Much of this discussion is redacted, though it’s clear it provides details of Page’s December trip to Moscow, where he met with the Deputy Prime Minister again, and probably refers to Page’s meeting with the VP of Gazprombank in Singapore.

This table shows the new claims made in each FISA application described in the IG Report.

It’s not clear that Page’s denials in the HPSCI interview are as damning as Schiff makes out, as some of them amounted to denials of claims in the dossier than have not been proven. The IG Report would go on to describe other denials from Page that were provably true, denials that did not get included in reauthorization applications.

¶20: The Court-approved surveillance of Page allowed FBI to collect valuable information. Publicly, Michael Horowitz has suggested this is not the case. But the IG Report admits that that investigation team “did not review the entirety of the FISA [intelligence collected by] targeting Carter Page. We reviewed only those [redacted] under FISA authority that were relevant to our review.”

The Report suggests that the reality is that the first two, and possibly three, warrants were useful, as they captured Page interacting with Russia in suspicious ways, but that the fourth and maybe the third application were far less useful, in part because by that point Page knew he was being surveilled and by that point he was no longer a key player in Trump’s orbit.

¶21-22: DOJ was transparent with the Court about Steele’s sourcing. The Schiff memo accurately describes the footnote used to inform the court of the political nature of Steele’s project. It doesn’t describe that FBI didn’t amend that description as more information became known, though there is disagreement over whether more was necessary.

¶23: DOJ explained the FBI’s reasonable basis for finding Steele credible. The Schiff memo accurately describes how DOJ described Steele. But it doesn’t note that the reauthorizations did not reflect questions FBI had come to raise about the credibility of the dossier, nor does it note (and it probably wasn’t known) that the applications used language from an intelligence report rather than from Steele’s handling agent to describe the degree to which his past reporting had been corroborated, and as a result overstated that.

¶24-25: FBI properly notified FISC after it terminated Steele as a source. As a minor point, in the first reauthorization, FBI said Steele had been suspended rather than closed, when he had actually been closed. More seriously, the Schiff memo badly understates how obvious it should have been that Steele had a role in Michael Isikoff’s October 21 story (though, as noted, the FBI attributed the story to Simpson in any case).

¶26: The FBI never paid Steele for the dossier. Here, the two memos are talking past each other dishonestly. The FBI did authorize Steele to be paid for any exclusive reporting on specific taskings, but what he provided was always his work for Fusion.

¶27: DOJ appropriately provided the Court with a comprehensive explanation of Russia’s election interference, including … Papadopoulos. This is largely true. The IG Report complains that FBI didn’t include Papadopolous’ really damning admissions to informants, but the FBI correctly deemed the denials he made (and Joseph Mifsud’s denials) to be inaccurate, so had they been included they would have been included to substantiate deceit.

¶28: DOJ made proper use of news coverage. The unredacted claims are all true (though don’t account for FBI’s failures to identify Isikoff’s article as coming from Steele).

¶29-30: The Majority’s reference to Bruce Ohr is misleading.

This passage states that Ohr’s meeting with the Crossfire Hurricane team happened after the FISA application, which is true, but it doesn’t mention a meeting had with Andrew McCabe (not Crossfire Hurricane) days before the FISA application. The McCabe meeting included reporting from Steele (whom Ohr had spoken to the previous day) and Simpson; I argue, however, that the precipitating reason for the meeting had to do with Oleg Deripaska, which the IG Report inaccurately treats as synonymous with the Steele dossier (though it’s problematic for other reasons).

Also, the Schiff memo speaks of “debriefs” without describing the multiple meetings.

The Schiff memo correctly calls the Nunes memo on insinuating that because Ohr worked with Sally Yates and Rod Rosenstein that meant there was a conspiracy; in fact, the IG Report argues he should be disciplined because he didn’t provide them enough notice of what he was doing.

The evidence in the IG Report backs Schiff’s conclusion — that Ohr’s contacts with the Crossfire Hurricane team amounted to debriefing about Steele’s project — more than it backs its own.

¶31: Strzok and Page’s text messages are irrelevant to the FISA application. That is true. The IG Report found,

As part of this review, in order to determine whether there was any bias in the investigative activities for Crossfire Hurricane that we reviewed, we asked agents and analysts assigned to the case about the roles Strzok and Page played in the Crossfire Hurricane investigation and their level of involvement in decision making. With respect to Strzok, these witnesses told us that while he approved the team’s investigative decisions during the time he was in the supervisory chain of command for the investigation, he did not unilaterally make any decisions or override any proposed investigative steps. Priestap, in addition to telling us that it was his (Priestap’s) decision to initiate the investigation, told us that to his knowledge, Strzok was not the primary or sole decision maker on any investigative step in Crossfire Hurricane. Further, as described above, in January 2017, the Crossfire Hurricane cases were divided between two operational branches within CD, and Strzok no longer supervised the Carter Page investigation, which was transferred to Operations Branch II, CD-1, under the supervision of then DAD Boone. In this report, we describe those occasions when Strzok was involved in investigative decisions.

With respect to Lisa Page, witnesses told us that she did not work with the team on a regular basis or make any decisions that impacted the investigation.

The DOJ IG Report on Carter Page: Policy Considerations

Before and continuing into the holiday break, I wrote a slew of posts on the DOJ IG Carter Page Report. Those are:

Overview and ancillary posts

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

The DOJ IG Report on Carter Page: Policy Considerations

Timeline of Key Events in DOJ IG Carter Page Report

Crossfire Hurricane Glossary (by bmaz)

Facts appearing in the Carter Page FISA applications

Nunes Memo v Schiff Memo: Neither Were Entirely Right

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Report shortcomings

The Inspector General Report on Carter Page Fails to Meet the Standard It Applies to the FBI

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

Factual revelations in the report

Deza: Oleg Deripaska’s Double Game

The Damning Revelations about George Papadopoulos in a DOJ IG Report Claiming Exculpatory Evidence

A Biased FBI Agent Was Running an Informant on an Oppo-Research Predicated Investigation–into Hillary–in 2016

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

The Flynn Predication

Sam Clovis Responded to a Question about Russia Interfering in the Election by Raising Voter ID

The IG Report made nine recommendations, which FBI largely accepted with implementing plans. Those recommendations focus on the paperwork side of FISA applications and the protections against purported politicization. Most of those recommendations (save, especially, the one suggesting Bruce Ohr be punished for sharing national security threat information) are worthwhile. But they are inadequate to ensuring similar problems don’t recur. Moreover, there are questions that should be asked even before we get to “fixing” FISA.

This post attempts to ask some of those questions.

What should FBI have done when faced with a credible allegation Trump’s associates had advance knowledge of a hostile attack on our elections?

This is a question I’ve asked over and over of Republicans, but I’ve never got an answer.

Three of four people who were original subjects of this investigation covered up their actions. There are outstanding questions about all four and there were ongoing investigations into at least Paul Manafort and Mike Flynn when Mueller closed up shop. And a fifth Trump associate — Roger Stone — was found guilty of hiding details of how he tried to optimize the fruits of the Russian attack, without yet revealing what it is that he was hiding. So there’s no question the investigation was merited.

So what should the FBI have done when it got the tip from Australia? The IG Report raises questions about whether FBI should provide defensive briefings in this situation, but not how to conduct an investigation at a time when our country and elections are under active threat.

In retrospect, was the decision not to use other legal process the best one?

Peter Strzok famously lost a fight to investigate more aggressively, the true meaning of his “insurance file” comment. As a result, the FBI did not use any overt methods during the election.

Significantly, that means they didn’t get call records that would have provided a ready explanation for how Papadopoulos had learned Russia wanted to dump emails (particularly in conjunction with what he told CHS 3 about Mifsud). Doing so might have confirmed Carter Page’s claim that Paul Manafort never returned his emails. And it would have identified that Konstantin Kilimnik (who could be targeted under 702) had a suspicious record of communications with Manafort.

Rather unbelievably, FBI may not have asked Apple or Google for Carter Page’s app download history, which is how they usually find out if someone is using encrypted messaging apps (they did not learn what he was using until April 2017).

Particularly given all the chatter about the subjects of investigation, and given that three of them — Page, Manafort, and Papadopoulos — were “fired” from their free campaign jobs because of their ties to Russia, was that really the right decision? And given how successful FBI is at obtaining gags on legal process, was using FISA with Page really that much less invasive or was FISA used simply because his sustained ties to Russian intelligence officers meant FISA was the appropriate framework?

Why did FBI forgo a Section 215 order on Page?

Nothing in the public record suggests FBI got a Section 215 order before they obtained traditional FISA (including physical search) against Page. That’s true, even though the predication for 215 is lower (just talking to an agent of a foreign power, which Page had long been doing, is enough). This would have been a way to obtain the call records and download history that might have indicated that Papadopoulos was a more urgent target than Page, lessening the urgency to get a FISA targeting Page. If FBI in fact did not obtain that 215 order before the content order (once he was approved for the content order, the 215 order would have been presumptively approved), why not, and should they have? Past IG Reports have said the process of applying for a 215 is onerous enough that Agents often forgo it; is that what happened here?

Does the public agree with the FBI about the intrusiveness of informants?

One of the disconcerting aspects of the IG Report is its treatment of informants (Confidential Human Sources, or CHS, in the report). It spends a long time assessing whether the use of informants against Carter Page, Sam Clovis, and George Papadopoulos had the requisite oversight, ultimately concluding FBI followed the rules but the rules for politically exposed people should be more stringent.

Along the way, it revealed that the FBI:

  • Happened to have an informant on the books (Stefan Halper) with existing ties to three of the subjects of the investigation
  • Managed to convince someone Papadopoulos trusted (CHS 3) to report on him and used an accelerated process to open him or her as an informant, and tried but failed to get at least two other people to report on him
  • Had five other people in Trump’s orbit who were informants (Felix Sater might be one of these)
  • Accepted information obtained voluntarily from one of those informants
  • Had used informants to targeted the Clinton Foundation during the election period and at least some of those informants were handled by an Agent who wanted her to lose

That’s probably on top of Patrick Byrne, if indeed his claims to have been tasked against Clinton and Maria Butina in 2016 are true.

That’s a lot of informants situated to report on very powerful people.

Trump’s supporters have declared all this proof that they were “spied” on (ignoring the targeting against Hillary). Meanwhile, the FBI has pointed out that they more than complied with FBI’s rules on using informants, though there was less discussion in the IG Report about the fact that per its Domestic Investigations and Operations Guide, FBI could have used these informants at lower levels of predication. Before the IG Report recommended rules about heightened review (much of which would have been satisfied in this case anyway), we might ask whether we, as the public, agree that the use of informants is really as unintrusive as FBI thinks. And does it involve tradeoffs as compared to other methods? For example, which would have been preferable, getting Papadopoulos’ call records (which would have shown his ties to Mifsud), or throwing a series of informants at him?

Is the consideration of least intrusive means adequately reviewed?

The DIOG requires that FBI agents at least consider whether the “least intrusive” means of investigation will be an appropriate investigative step. The IG Report reviews this requirement, which is meant to ensure FBI agents balance privacy considerations with the import of the investigation, but never comments on whether the review here was correct. Moreover, it seems that there’s a rule that lowers this consideration significantly when a matter is deemed to pertain to national security (as this would have been).

I’ve long wondered whether FISA process in general gets adequate review on whether it’s really the correct least intrusive means judgment.

Is the FBI Director declaration regarding other investigative techniques adequately reviewed?

FISA requires that the FBI Director or his designee certify that the information the FISA application wants to obtain, “cannot reasonably be obtained by normal investigative techniques.” The IG Report notes this, largely because that’s what Jim Comey and Andrew McCabe reviewed the Page applications for, not probable cause. But it did not discuss how this determination is made, and I would bet a lot of money that this is an area where FISA could use more review.

Particularly given the use of gags in so much criminal process and the widespread availability of fairly exotic surveillance techniques, what is the measure for this declaration?

Does FBI conduct certain investigative techniques using FISA to keep them secret?

I noted that the FBI was close to concluding they didn’t need another FISA on Carter Page, but then learned he had used some encrypted app, and so got another FISA. This supports my suspicion that the FBI will use certain surveillance techniques under cover of FISA they otherwise would eschew just to keep it secret. There may be good reason for that (indeed, it might ensure that the most exotic surveillance only gets used with much closer District Court judge review than magistrates normally give warrant applications), but it would also skew the incentives for using FISA. While policy makers may not need to know what those techniques are, they deserve to know if FISA makes certain otherwise unavailable techniques available.

Why do we need FISA?

I don’t mean to be glib. Since the IG Report came out, a lot of people who’ve used it have said we need to preserve this ability. But they’re not explaining why. That’s a two-fold question. First, why does FBI need a different probable cause standard for foreign intelligence (the likely and noncontroversial answer is, spying on a lot of people, including diplomats, who haven’t committed an obvious crime). But the other question is, why can’t that level of secrecy and court review be accomplished at normal district courts? In the wake of 9/11, most courts (especially most courts that will regularly have FISA cases, like DC, NY, VA, and CA) have sophisticated court security procedures that would seem to accomplish much of what FISA was originally intended for. Having normal district judges — even if only a subset of them — review FISA applications might inject more viewpoints onto the Fourth Amendment review. Furthermore, it would ensure that more judges reviewing such applications are also seeing the kinds of criminal cases that might arise from them (something that I’ve argued was useful with Michael Mosman, who ironically was the judge that approved Page’s second FISA application).

In recent years, the FBI has devolved its FISA process to its field offices; why can’t that happen in the courts, as well?

Is relationship between lawyers and FBI agents on FISA too attenuated?

The explanation the IG Report used for blaming the FBI agents for all the missing information in FISA applications stems from the more attenuated involvement of National Security Division lawyers (Office of Intelligence, or OI here) in warrant applications than happens in traditional criminal investigations.

NSD officials told us that the nature of FISA practice requires that 01 rely on the FBI agents who are familiar with the investigation to provide accurate and complete information. Unlike federal prosecutors, OI attorneys are usually not involved in an investigation, or even aware of a case’s existence, unless and until OI receives a request to initiate a FISA application. Once OI receives a FISA request, OI attorneys generally interact with field offices remotely and do not have broad access to FBI case files or sensitive source files. NSD officials cautioned that even if 01 received broader access to FBI case and source files, they still believe that the case agents and source handling agents are better positioned to identify all relevant information in the files.

From that the IG Report decides that the problems in the Page applications arose through sloppiness or worse from the agents. But perhaps this is entirely the wrong conclusion. Perhaps, instead, the problems arose from OI lawyers having less ownership of what happens downstream from a FISA application than normal prosecutors would have, meaning they’re outsourcing more decision-making about relevance to agents whose motivations are at odds with that kind of decision-making. In other words, the remedy for this may not be instituting more checklists (which is what DOJ IG recommended and FBI has committed to), but changing the relationship between OI lawyers and the FBI agents applying for FISA?

Is there any legitimate reason to withhold review from defendants?

When Congress passed FISA, it envisioned that at least some defendants would review their FISA applications, but that hasn’t happened, at all. In the interim, the “wall” between FISA and criminal prosecutions has come down, making it more likely that FISA collection will end up as part of a criminal prosecution. Indeed, former NSD AAG David Kris suggests defendants should get review, which would mean that agents would know that any given FISA application might get shared with a defendant if it turned into a criminal case. At the very least, it seems that FBI and NSD should explain to Congress why they shouldn’t be asked to do this.

One of the problems may be with the definition of “aggrieved” under FISA. That includes both the target and those subject to collection under a FISA order. For example, Carter Page would have been aggrieved in Victor Podobnyy’s FISA order (which is probably where the reports that he had been collected under FISA in the past came from), and Mike Flynn would have been aggrieved under a FISA application targeted at Sergey Kislyak. Normally, only the target of a criminal warrant would get to challenge it. Effectively, one way the government is likely using FISA is to find out what Americans are talking to suspected spies, so the FBI would not want to reveal that use. (Though one of the problems likely arises from how the government defines “facilities” that can be targeted, because they don’t have to be owned by the person being targeted.)

Perhaps, then, one way to extend review to the actual defendants who were the targets of FISA surveillance would be to change the definition of aggrieved party, but along the way to change how searches on already collected FISA data are conducted.

What are the boundaries between FISA’s agent of a foreign power, 18 USC 951’s Agent of a Foreign Power, and FARA?

As I noted, the entire DOJ IG Report may suffer from a misunderstanding about what crime(s) FBI was targeting. Until 11 days after the report was released, it appeared to believe that Trump’s aides were only being investigated for FARA, which is basically unregistered political influence peddling. That appears to have been true, but it’s almost certainly not true of Page, against whom there was already an investigation into his willingness to share non-public economic information Russia’s spies ask for. If that’s true that the entirety of the First Amendment analysis in the report is superfluous, because Page — the only Trump aide targeted under FISA — had already met the standards for targeting under the First Amendment before FBI turned to his political speech in August 2016. That is, because Page was already being investigated for sharing non-political stuff with Russian spies , there should never have been a First Amendment question.

Particularly given the different status of FARA in 1978 when FISA was passed, its virtual lapse for years, followed by a recent focus on it in recent years (at a time when there are fewer protections against foreign influence peddling). it seems vitally important for Congress to demand an understanding of how these three statutory regimes intersect, and — hopefully — provide some clarity on it for everyone else.

Update: Added the question about various Foreign Agent designations.

Horowitz

Timeline of Key Events in DOJ IG Carter Page Report

As part of my deep dive into the DOJ IG Report on the Carter Page FISA, I’ve tried to capture the key events in it, which are discussed in iterative fashion in the report so hard to understand. Note, too, that the much-touted 17 problems with the renewal applications include details that only were problematic on the last application; that doesn’t excuse the errors but it obscures what FBI might have done when.

2004-2007: Carter Page lives in Russia

2007: Bruce Ohr first meets Christopher Steele

2007: Carter Page’s ties with Intelligence Officer 1 begin

April 2008: Carter Page first meets with CIA

June 18, 2009: FBI interviews Carter Page about contact with Intelligence Officer 1, who says he has been in contact with CIA

Spring 2010: Michael Gaeta first meets Steele

Summer 2010: Steele introduces Gaeta to source who provides information on corruption in FIFA, leading to opening of that investigation

October 2010: Page tells CIA he met with Intelligence Officer 1 four times and was asked about another American

July 2011: Steele provides details of alleged conversation between Medvedev and Russian oligarch who bribed FIFA

July 2011: Page meets with CIA

2012: Steele introduces FBI to two British officials with information on FIFA

2013: Intelligence Officer 1 hands off Page to Victor Podobnyy

June 2013: FBI interviews Page about Podobnyy; Page says his acquaintance with Podobnyy was positive for him; Page says he hadn’t spoken with CIA in “about a year or so” (it was July 2011); Page never informed CIA of his contacts with another Intelligence Officer (probably Podobnyy)

August 2013: FBI interviews Page about Podobnyy, who admits he has met with Podobnyy since their last interview

October 2013: Steele provides information on 3 Russian oligarchs, including one of FBI’s most wanted fugitives

October 30, 2013: Gaeta opens him as a CHS

June 2015: Steele report quotes Kremlin official admitting to bribing FIFA

August 2015: Buryakov, Prodobnyy, and others indicted

September 2015: Fusion GPS starts working for Paul Singer

September 2015: Bruce Ohr and an FBI Agent meet with Deripaska

October 2015: Nellie Ohr begins to work for Fusion

January 2016: FBI opens money laundering investigation into Paul Manafort; Page joins Trump campaign as volunteer

January 25, 2016: Steele bills FBI for 7 meetings in prior year

March 2, 2016: FBI interviews Page in preparation for Victor Podonyy trial and learns he informed a Russian Minister and others at the UN he was identified in the indictment in “the spirit of openness”

March 21, 2016: Trump formally names Page a foreign policy advisor

April 1, 2016: Counterespionage Section advises NYFO to open an investigation on Page

April 6, 2016: NYFO opens investigation into Page (note, one reference to this says the investigation was opened on April 4)

May 2016: Simpson meets with Steele at a European airport and first discusses Trump project

May 16, 2016: Page requests permission from campaign to make trip to Russia

July 5, 2016: Midyear Exam closed; Steele meets with Gaeta and hands over Report 80

July 7 & 8, 2016: Page in Moscow

July 11 or 12, 2016: Page first meets Stefan Halper at a conference in London, though DOJ IG says that was not part of an FBI tasking

Around July 12, 2016: Steele follows up with Gaeta, who has not yet done anything with first report

July 13, 2016: Gaeta shares details from Report 80 with NYFO ASAC

July 19, 2016: Steele sends Gaeta Report 94

July 26, 2016: Australia shares info with “State” in in-person meeting

July 27, 2016: “State” passes on Australian tip to Legat in UK

July 28, 2016: Legat sends tip to Philadelphia Field Office, which passed it on to Cyber CI section at FBI HQ; Gaeta sends Reports 80 and 94 to NYFO

July 29, 2016: At meeting between Comey and McCabe where the Australian tip was discussed, both Carter Page and Manafort were mentioned

July 30, 2016: Both Ohrs meet with Steele

July 31, 2016: FBI opens Crossfire Hurricane

August 1, 2016: Peter Strzok and SSA 1 travel to London to interview Australian officials

August 3, 2016: NYFO discusses Steele Reports 80 and 94; Ohr reaches out to Gaeta

Early August, 2016: Former CHS describes investigative firm being hired by DNC and another individual to explore Trump’s longstanding ties to Russian entities; information gets shared with CH team

August 4, 2016: Gaeta sends NYFO Associate Division Counsel Reports 80 and 94; tells Ohr that’s what happened; Ohr reaches out to Bruce Swartz

August 10, 2016: FBI has a team for CH, opens case on Carter Page, George Papadopoulos, and Paul Manafort

August 11, 2016: CH team meets with Stefan Halper to talk possible Russian interference in the election (Papadopoulos was the first ask, then Halper brought up Page)

August 12, 2016: FBI pays Steele his last payment, for information provided to Cyber and CI Divisions unrelated to 2016 elections; CH team meets with Halper for general briefing about how campaigns work

August 15, 2016: FBI first considers FISA on Page

August 16, 2016: FBI opens case on Mike Flynn; OGC contacts Stu Evans about FISA

April 17, 2016: FBI receives information from CIA saying he had been approved as an operational contact for CIA from 2008 to 2013; SSA 1 attends Trump’s security briefing at which Flynn attended, reporting out an Electronic Communication on the briefing

August 20, 2016: Halper meets with Carter Page; Page denies ever having met Manafort, but talks about an October surprise where 33,000 emails may get dropped; SSA 1 documents August 17 briefing in an EC

August 22, 2016: OI tells Page case agent they’re not there yet for a FISA; Simpson contacts Ohr, provides names of three intermediaries; Ohr passes it on to Gaeta

August 25, 2016: McCabe instructs SSA 1 to contact NYFO for information related to the investigation

September 1, 2016: Stefan Halper meets Sam Clovis, gets a referral to Papadopoulos

September 2, 2016: SSA 1 trying to set up subfile for Gaeta to upload Steele reports

September 7, 2016: FBI briefing at White House on ongoing Russian interference operations

September 12, 2016: Ohr and Gaeta discuss Steele again

September 13, 2016: SSA 1 realizes email setting up subfile for Gaeta didn’t work

Setpember 15, 2016: Papadopoulos meets with Halper (and “Azra Turk”); issues denial of Russian related issues that CH deems to be a cover story

September 19, 2016: Gaetta sends Reports 80, 94, 95, 100, 101, and 102 to SSA 1

September 21, 2016: CH decides to apply for FISA for Page; Steele arrives in DC

September 22, 2016: FBI submits FISA request form and OI assigns line attorney to work with CH

September 23, 2016: Isikoff Yahoo story based on Steele; Case Agent 1 emails Gaeta to ask about Steele who provided a different description than the one used in the FISA application; Steele meets with Ohr where he pitches Deripaska

September 24, 2016: Nellie Ohr’s last day at Fusion; Carter Page “fired” from the campaign

September 27, 2016: Video conference call with Gaeta aiming to meet with Steele

September 28, 2016: OI asks if Page’s public claims to have provided information to CIA were true

September 29, 2016: OI asks whether it is true that Page had provided information to CIA

September 30, 2016: FBI submits expedited FISA application for Page (and also a request for a FISA targeting Papadopoulos); OI asks how subsources can be reliable

October 2016: Car runs over Page phone, destroys it

Early October 2016: CH team meets with Steele; he describes source believed to be Millian as a “boaster”

Early October 2016: CH assess Sergei Millian is Steele source, learns he is the subject of a counterintelligence investigation; learns he had “sustained” contact with Papadopoulos since at least August 2016

October 4, 2016: Possible date Papadopoulos left campaign

October 5 and 6, 2016: First draft of Page FISA application shared with OI and NSD management

October 6 or 7, 2016: FBI GC Jim Baker reviews application

October 7, 2016: Evans asks about Steele affiliation with any campaign

October 10, 2016: Case agent 1 provides only partly responsive answer to Evans on campaign affiliation; Papadopoulos sends text saying he was “no longer with the campaign”

October 11, 2016: Evans learns Steele was political opposition research; Steele meets with Winer and Kathleen Kavalec

October 12, 2016: Strozk and others brief Comey and McCabe abt Evans’ concerns

October 13, 2016: Kavalec emails FBI CD Section Chief Winger information about Alfa Bank and Trump; TOC-East tells Ohr CI agents have met with Gaeta

October 14, 2016: FBI changes Page FISA application to say Steele was not source for Isikoff story; Case Agent 2 writes CH informing them that Gaeta did not think Steele knew who was paying for his work; draft sent to Mary McCord for her review

October 17, 2016: McCord becomes Acting AAG for NSD; meeting with Halper where Page describes being given an “open checkbook” by Russian to open a think tank and maybe appearing on media to talk about Syria, but denies knowing Divyekin or meeting with Sechin, knowing about WikiLeaks role in hacked email release, or having any role in the change of platform; Papadopoulos sends text claiming he’s still with the campaign but only “laying low”

October 18, 2016: Taushina Gauhar and OI lawyer review application; McCord asks about Fusion’s payment and prudential question; urgent Steele call about sanctions on Rusal (IG Report says US, but it seems Ukrainian?); Ohr meets with McCabe and Lisa Page

October 19, 2016: Steele gives Gaeta Jonthan Winer dossier sourced to a friend (Blumenthal) who obtained it from a Turkish businessman with ties to Russia (including that FSB funneled payments through Azeri family, probably the Agalarovs); McCabe and Evans discuss the prudential question of targeting Page; OI signs out the application; Steele and Ohr talk

October 20, 2016: FISC legal advisor reviews the application; FBI conducts the Woods review; Comey signs the application

Third week of October, 2016: First meeting between CHS 3 and Papadopoulos where he raised Millian, said he was still “indirectly” with the campaign, and planned to travel to Russia the next summer

October 21, 2016: Yates First Carter Page FISA application submitted to FISC

End of October, 2016: Second meeting between CHS 3 and Papadopoulos, Papadopoulos lays out outlines of Mifsud ties, including someone “well connected to the Russian government” and Putin’s niece” and “the Ambassador in London;” also repeats his email denials to Halper  saying he believed he’d tell the CIA

October 31, 2016: MoJo story based on Steele

November 1, 2016: Gaeta first learns of MoJo story, calls and (in his last contact with Steele ever) confirms he spoke with David Corn for the story; warns Ohr about Steele

November 2016: Strzok and Priestap travel abroad to validate Steele, learn he has judgment issues

November 2016: SSA 1 requests Validation Review

November 6, 2016: CH receives Steele

Around November 8, 2016: Gaeta and Ohr meet in DC, where they discuss closing Steele; Ohr tells Gaeta that Nellie had worked at Fusion

November 14, 2016: Page submits application to Transition Team

November 16, 2016: Ohr meets with Bruce Swartz and Zainab Ahmad about Manafort investigation

November 17, 2016: Gaeta closes Steele as a source

November 18, 2016: FBI Liaison to State Department claims he first learned of Kavalec’s meeting with Steele

November 21, 2016: Ohr meets with State about Russian interference, where he and Kavalec discuss Steele, then later Strzok and others interview Bruce Ohr

November 29, 2016: In meeting on reauthorizing Page FISA, FBI still maintains Steele was not behind Yahoo News story

November 30, 2016: FBI memorandum explains that JD Gordan ensured the Ukraine platform did not change

December 2016: First reorganization of CH team

December 5, 2016: SSA 1 interviews Ohr, who provides Nellie Ohr’s Manafort timeline and provides more details about Steele’s outreach to the press

December 7, 2016: Ohr convenes a meeting on Deripaska, after which he discusses why the US would support working with Deripaska

December 8, 2016: Page in Moscow, claiming he is authorized to talk on behalf of Trump, including on Ukraine, per Konstantin Kilimnik [probably foldered] email to Manafort; Ohr calls Simpson to set up a meeting

December 9, 2016: McCain gives Comey set of Steele reports

December 10, 2016: Ohr receives thumb drive from Simpson, including Secretary of State report, reiterates focus on Sergei Millian

December 11, 2016: Simpson forwards article on Torshin and NRA, probably tells Ohr Steele spoke with Isikoff

December 12, 2016: SSA 1 interviews Ohr, obtains Ohr set of Steele reports

December 15, 2016: Ohr meets with Swartz, Strzok, and Lisa Page to bring a national security focus to Manafort’s money laundering investigation; Halper meets with Page, who describes declining invitations because of FBI investigation

December 16, 2016: McCabe fighting to include Steele information in ICA

December 19, 2016: Case Agent interviews Jim Baker about interactions with David Corn; Baker said Corn said Steele was passing information around town

December 20, 2016: Ohr gives SSA1 Nellie Ohr’s other Fusion work, which she has stripped of its Fusion headers

December 28, 2016: McCabe argues for putting Steele dossier in appendix; draft Page FISA renewal done

December 29, 2016: OI Attorney provides draft to Evans

December 30, 2016: OI Attorney provides read copy to Gauhar

January 3, 2017: Evans provides read copy to McCord

January 4, 2017: ODAG provides suggestions, believing the FISA yielded “relevant and useful information”

January 5, 2017: Clapper, Mike Rogers, John Brennan, and Comey brief ICA to Obama

January 6, 2017: Trump briefed on ICA, including dossier

January 10, 2017: BuzzFeed publishes Steele dossier; FISC says he’ll approve order

January 11, 2017: Clapper releases statement stating they had not made any judgment on reliability

January 12, 2017: Second Carter Page FISA application submitted to FISC, approved by Michael Mosman

January 25, 2017: Final meeting between Halper and Page; Page denies allegations in Steele dossier, tells of upcoming meeting with Steve Bannon

January 30, 2017: Dana Boente becomes AAG

January 2017 (shortly after 2nd Page FISA approved): FBI conducts an interview with Steele’s subsource

Early February 2017: Steele validation review resumes

February 2017: Supervisory Intel Analyst circulates a memo on interview with primary subsource

February 1, 2017: Ohr meets with Swartz, Ahmad, Weissman, Strzok, Lisa Page, and another FBI person about bringing financial analysts into Manafort investigation

February 9, 2017: Boente becomes Acting DAG

February 16, 2017: ODAG briefing reflects the Ohr’s ties with Steele and Fusion

March 2017: FBI conducts a second interview with Steele’s sub-source

March 2017: Supervisory Intel Analyst reviews original application for declassification

March 6, 2017: Notes from Boente briefing reflect Ohr’s efforts to re-energize Manafort case

March 10, 2017: Page interview with FBI

March 16, 2017: Page interview with FBI

March 20, 2017: Case agent provides additions to OI to being reauthorization process; FBI memo on JD Gordan

March 22, 2017: Notes from Boente meeting reflect knowledge of Weissmann, Swartz, and Ohr interest in Manafort case

March 23, 2017: Steele validation review completed, found him suitable for continued operation; case agent provided summary of subsource interview from January to OI

March 29, 2017: OI sent OGC draft of reauthorization

March 30, 2017: Page interview with FBI; OI sends draft to managers

March 31, 2017: Page interview with FBI; Boente becomes Acting AG overseeing CH

April 2017: NYFO obtains Page’s financial records

April 2017: Second reorganization of CH team

April 2, 2017: Gauhar gives draft application to Boente and Crowell

April 3, 2017: Boente approves application; Evans mails McCord application; in court filing, Steele admits he gave off-the-record briefings

April 5, 2017: Comey certifies

April 6, 2017: FISC pre-approves

April 7, 2017: Third Carter Page FISA application submitted to FISC; Anne Conway approves it

April 26, 2017: Rod Rosenstein confirmed DAG; Strozk circulates Steele admission among Intel personnel

May 2017: FBI conducts a third interview with Steele’s subsource, subsource says he or she has found zero corroboration for election reporting

May 1, 2017: In court filing Steele admits speaking to the press

May 17, 2017: CH transferred to Mueller

June 7, 2017: FBI interview with Platform Committee member confirms JD Gordon prevented the platform change

June 15, 2017L OGC emails liaison with CIA for clarity about Carter Page

June 16, 2017: First draft of renewal

June 19, 2017: Clinesmith sends an altered email to SSA 2

June 20, 2017: FBI first shares details of August 2016 Page denials (to Halper)

June 21, 2017: OI finishes draft

June 23, 2017: Read copy to FISC and ODAG

June 28, 2017: McCabe signs application

June 29, 2017: Fourth Carter Page FISA application submitted to FISC; Raymond Dearie approves

September 2017: Mueller’s team interviews Steele

September 22, 2017: Last day of FISA coverage on Carter Page

October 2017: The Ohrs informed Congress provided documents reflecting Nellie Ohr’s work at Fusion

November 28, 2017: SSCI asks for a briefing with Bruce Ohr

December 5, 2017: Crowell and Schools meet with Ohr about his 302s

December 6, 2017:: Crowell and Schools demote Ohr

December 20, 2017: Schools removes him as Director of OCDETF to avoid any coordination with the White House

January 4, 2018: Chuck Grassley and Lindsey Graham write the department about interviews of Ohr

March 28, 2018: OIG announces investigation

May 2018: OIG expands to include assessing whether FBI infiltrated Trump campaign; NSD learns of Papadopoulos’s September 2016 denials

July 12, 2018: NSD submits correction to FISC

October 25, 2018: George Papadopoulos testimony

January 31, 2019: Evans tells OIG he told Collyer they’d wait on the IG Report for further notice

May 10, 2019: NSD alerts FISC to two minimization violations

December 9, 2019: Release of the Report

December 17, 2019: Rosemary Collyer letter responding to report

 

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

emptywheel Fact Check Service — DOJ, 1-1 // Sidney Powell, 0-29

The other day, I noted an error in the government surreply to Sidney Powell. The government said Peter Strzok raised a question left in a draft 302. But it appeared — comparing the question with the notes in question — that the question had to come from Joe Pientka, based on DOJ’s representation of whose notes were whose.

Update: I think I found another error. The government says that the only thing interesting in the February 10 redline of the 302 is Strzok indicating he didn’t remember two details — that Flynn said he had no particular affinity for Russia, and that he didn’t remember that Flynn said his government Blackberry wasn’t working in the Dominican Republic.

Contrary to the defendant’s assertion, there were no material changes made after February 10, 2017, to the draft of the January 24 interview report. See Reply at 26. On February 10, 2017, DAD Strzok highlighted two—and only two—sentences where he did not recall a statement that the other interviewing agent included in the draft of the report.

But this must actually be Pientka not remembering these things, because both details show up in Flynn’s notes.

The government just informed Sidney Powell and Emmet Sullivan of the error, which was actually the reverse of what I surmised, that they had the ID on the notes backwards.

Last evening, we received word that our Surreply may have misidentified the authorship of the handwritten notes from the January 24, 2017 interview of your client. Specifically, we were informed that the notes we had identified as Peter Strzok’s, were actually the other agent’s notes (see Surreply, Exhibit 1), and what we had identified as the other agent’s notes were in fact Strzok’s notes (see Surreply, Exhibit 2).

This morning, we asked the FBI to re-examine the electronic records from the January 24 interview, and they confirmed that the government mistakenly identified these notes in its March 13, 2018 discovery letter. Strzok’s notes are those numbered DOJSCO-700021192—DOJSCO700021195; and the other agent’s notes are those numbered DOJSCO-700021196—DOJSCO700021198. We understand that this has caused some confusion, and we regret our error. The government has no other corrections to make about the notes.

I don’t know that I’m the one who gets credit for spotting the error, though I know lawyers in every case I’ve covered closely have followed my own coverage closely (DOJ’s press people have been really uninterested in speaking to me of late, for possibly justifiable reasons, so I didn’t call and ask).  But I certainly IDed this as an error, and it got fixed, the second day after the weekend.

So I’m running 1-1 correction rate on the substantive errors I’ve found in the government’s briefs.

Compare that with the errors and misrepresentations I’ve found in Sidney Powell’s briefs in just five months. Among the errors or lies I’ve IDed are:

  1. Falsely claims things don’t show up in the Strzok and Pientka notes that she hides with a sketchy cut and paste job (here, here)
  2. Whether DOJ provided everything considered Brady before Flynn pled guilty a second time (here, here)
  3. How long it took to move Peter Strzok off of Mueller’s team (here)
  4. Why Lisa Page left FBI (here)
  5. Whether Flynn had the Strzok-Page texts before pleading guilty (here)
  6. Claims Strzok texts saying he was concerned about leaks about Trump associates is proof of bias against Trump (here)
  7. Whether Strzok treated Flynn fairly given the record (here)
  8. Egregiously misquotes a Strzok 302 (here)
  9. Ignores that a Lisa Page 302 proves her misquote is wrong (here)
  10. Presents proof that everyone recognized Flynn lied then claims it proves the opposite (here, here
  11. Claims DOJ didn’t notice Flynn about something Comey said that Emmet Sullivan was in the loop on (here)
  12. Misstates the seniority of Bruce Ohr (here)
  13. Whether Bruce Ohr continued to serve as a back channel for Steele intelligence when in fact he was providing evidence to Bill Priestap about its shortcomings (whom the filing also impugns) (here)
  14. Whether the Ohr memos pertain to Flynn; none of the ones released so far have the slightest bit to do with Flynn (here)
  15. Misstates the timing of (and therefore who paid for) Nellie Ohr’s research into Flynn (here)
  16. Whether Andrew Weissmann was in charge of the Flynn prosecution (here)
  17. How many meetings Weissman and Zainab Ahmad had with Ohr — the only known meeting with him took place in fall 2016 — before Flynn committed the crimes he pled guilty to; the meeting likely pertained to Paul Manafort, not Flynn (here)
  18. Includes a complaint from a Flynn associate that pertains to alleged DOD misconduct (under Trump) to suggest DOJ prosecutors are corrupt (here)
  19. Whether a polygraph Flynn passed in 2016 has any import to crimes he committed in 2017 (here)
  20. When Flynn joined the Trump campaign, which if true, means she’s accusing Flynn of lying to the FBI (here)
  21. The import of key details in a timeline (here)
  22. Treats the standard for charging counterintelligence crimes as the standard for opening an investigation into them (here)
  23. Complains that a redaction hiding that there was no FISA order targeting Flynn hides FISA abuse on him (here)
  24. Claims that an order showing problems with FISA 702 — some committed while Flynn was NSA and none used before June 2017 against Trump’s people, after which those abuses were fixed — proved Flynn had been a victim of FISA abuse (here)
  25. Completely misunderstands the FISA 702 memo (here)
  26. Claims the use of EO 12333 collected information — something her client did for 30 years — was against the law (here)
  27. Claims phones that have nothing to do with her client prove her client is innocent (here)
  28. Claims Flynn’s meetings with her on how to blow up his plea deal were actually meetings during which he was cooperating with EDVA’s prosecutors (here)
  29. Claims a letter in which Chuck Grassley demands that Flynn be given exculpatory information is instead a Grassley assertion that DIA material Flynn already received that the govt says is inculpatory is exculpatory (here)

Again, these are not even all the errors I’ve found in Powell’s briefs.

Yet, as far as I know, she has never corrected a single one of these for Emmet Sullivan — she hasn’t even stopped making some of these key false claims.

I’ll grant you that the government’s error is embarrassing. I shouldn’t need to fact check the FBI 18 months after the fact!

But it also happens to undermine several of Powell’s claims. It means Strzok, who was the main interviewer, really did take sketchier notes, as Powell says he would have. It means that Pientka, not Strzok, is the one who took notes so OCD that Powell says he shouldn’t investigate her client — but also means that the Agent she has no gripe with took the more substantive notes. It means that the redline shows Strzok challenging Pientka about material he included that Strzok didn’t remember.

In other words, it undermines yet more of Powell’s conspiracy theories.

And it doesn’t change that both sets of notes and all three 302s back the charges of false statements that Flynn pled guilty to.

Updated to include a 29th false claim of Powell’s because it’s a particularly galling one.

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

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

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

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

Sidney Powell rewrites all of criminal procedure

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

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

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

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

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

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

Of course, there are problems.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Powell says prosecutors should never pursue plea deals

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

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

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

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

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

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

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

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

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

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

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

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

As predicted, she instead cites Ted Stevens.

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

[snip]

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

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

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

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

On the Classification Disputes over Mike Flynn’s Discovery

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2) Page-Strzok texts*

3) Comey memos

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

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

9) Joe Pientka notes from the interview

10) Strzok notes of the interview

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update: I think I found another error. The government says that the only thing interesting in the February 10 redline of the 302 is Strzok indicating he didn’t remember two details — that Flynn said he had no particular affinity for Russia, and that he didn’t remember that Flynn said his government Blackberry wasn’t working in the Dominican Republic.

Contrary to the defendant’s assertion, there were no material changes made after February 10, 2017, to the draft of the January 24 interview report. See Reply at 26. On February 10, 2017, DAD Strzok highlighted two—and only two—sentences where he did not recall a statement that the other interviewing agent included in the draft of the report.

But this must actually be Pientka not remembering these things, because both details show up in Flynn’s notes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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