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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.

How Sidney Powell Misrepresents Her Evidence in Her Fake Brady Motion

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

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

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

Exhibit 1: A timeline

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

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

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

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

The timeline includes notable gaps including:

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

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

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

Exhibit 2: Cherry-picked Strzok-Page texts

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

For example, Powell claims,

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

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

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

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

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

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

Exhibit 3: Cherry-picked Comey memos

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

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

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

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

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

The memo in no way supports the passage.

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

Exhibit 4: CNN article

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

Exhibit 7: Two pages of the Steele dossier

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

Exhibit 11: Redline of 302

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Exhibit 13: WaPo reports on the Strzok-Page texts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Which sounds like the definition of sanctionably frivolous behavior.