Sidney Powell Switches Her FARA Villain Mid-Stream

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In a still pending motion to withdraw Mike Flynn’s guilty plea submitted in January, Sidney Powell told this story about how the baddies in DOJ’s FARA unit — led by David Laufman — entrapped the General in lies.

I’ve linked to the exhibits where Powell claims her arguments are supported, though in places, they show the opposite — for example, Flynn lying to his lawyers claiming that he came up with the idea to write the op-ed himself — and in at least one case, the page Powell cites doesn’t exist.

The next day—Mr. Flynn’s first day out of the White House, with media camped around his house 24/7—Rob Kelner and Brian Smith of Covington, and Kristen Verderame, called Mr. Flynn to give him a status update on the FARA issues. Mr. Flynn accepted their recommendation that it was better to file, and he instructed the lawyers to “be precise.”11

On February 21, 2017, David Laufman, Heather Hunt, Tim Pugh, and multiple others from the FARA Unit telephone-conferenced with Covington. Ex. 8. Laufman directed the content, scope, and duration of the call. In this lengthy conversation, Kelner exacerbated his prior mistake, stating that “Flynn wrote [the op-ed],” and that Mr. Rafiekian, Mr. Flynn’s former business partner, provided “input.” Ex. 8 at 2. Kelner apparently misremembered or misspoke, but the SCO parlayed the description in the FARA form into a felony attributable to Mr. Flynn. Meanwhile, Covington—instead of owning any error and correcting it—began a campaign of obfuscation that deepened the conflicts, created Mr. Flynn’s criminal exposure, and led to repeated instances of ineffective assistance of counsel.12

That evening, Heather Hunt requested a meeting the next day at Covington’s offices to review the draft FARA filing in person. She and several others from the FARA unit, arrived and reviewed the FARA draft and discussed logistics. Mr. Smith made notes of matters to include in the filing, such as the New York meeting with Turkish officials, payments to Inovo, specifics of the Sphere contract, and Sphere’s budget (if established). The team noted that if Turkey was involved, it must be listed on the filing, and they created various reminders. Finally, Ms. Hunt reminded the Covington team to file by email and send a check to cover filing fees by a courier. 13 Ex. 9.

Covington filed the forms on March 7, 2017. Hunt acknowledged receipt at 10:50 p.m., prompting Smith to remark to his colleagues, “They are working late at the FARA Unit.” Ex.12.

Hardly had the FARA registration been uploaded on the FARA website when the onslaught of subpoenas began.14 On May 17, 2017, Special Counsel was appointed, and the much-massaged “final” Flynn 302 was reentered for use by the SCO. Soon thereafter, the SCO issued a search warrant for all Flynn’s electronic devices. Meanwhile, Covington’s August 14, 2017, invoice alone was $726,000, having written off 10% of its actual time. Ex. 13 at 3.

11 Ex. 7: Smith Notes of 2/14/17 call.

12 Covington lawyer Brian Smith’s notes of January 2, 2017, and reconfirmed in his 302 of June 21, 2018, show that Mr. Flynn stated Rafiekian wrote the first draft. ECF No. 151-12 at 17. ECF No. 150-5 at 7. Rafiekian told Covington this also, and the emails confirmed it. Ex. 10.

13 On March 3, 2017, Kelner emailed Hunt to tell her “we are not quite ready to file, but close.” Hunt wanted more detail and demanded to know, “close as in later today, or close as in next week?” Kelner responded, Tuesday, March 7, 2017. Ex. 11.

14 Covington received multiple subpoenas from the DOJ FARA unit, as well as subpoenas from the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, and then Special Counsel Office. In response to these subpoenas, Covington provided many thousands of documents in sixteen productions from April 2017 through October 2017 alone, and Mr. Flynn’s legal fees exceeded two million dollars.

Powell is shading here, covering up the fact that Flynn told Covington & Burling he was writing his Fethullah Gulen op-ed to benefit the Trump campaign rather than entirely for the benefit of clients he knew to be Turkish government ministers. The claim by itself demonstrates how Powell provides evidence that her client lied, even while wailing about unfair prosecution.

But for my purposes, I’m primarily interested in the villains of this story: Flynn’s Covington lawyers who repeated Flynn’s lies, FARA Unit lawyer Heather Hunt who promptly confirmed receipt of a filing, and David Laufman.

Laufman, then Chief of the Counterintelligence and Export Control Section at DOJ, was an early villain in the evolving conspiracies about the investigation into Trump and his flunkies, even while he is the hero of the Trump flunky’s complaints that Jim Comey didn’t let Julian Assange extort the US government with Vault 7 files.

I raise all this because I’m trying to determine whether the other two documents that Jeffrey Jensen’s team decided to date (notes from an ODAG meeting that Jensen purports took place on March 6, 2017 and notes from a meeting involving Bruce Swartz that Jensen purports took place on March 28, 2017) have affirmatively incorrect dates. Here are the notes “inadvertently” dated March 28:

In her filing accompanying the latter, Powell ignores that the notes show that Jeff Sessions asked two Turkish ministers what Flynn had been doing for them in an engagement that — Flynn’s official filing submitted on March 7, 2017 claimed — he wasn’t actually sure whether he had been working for Turkey. Rather than puzzling through why the Turkish foreign ministers would know the answer to that if Flynn was instead working for Ekim Alptekin, Powell instead complains that on March 28, 2017, Swartz “decided” to subpoena Flynn’s company even though (she claims) he had just been told that Flynn had satisfied the registration obligation.

Newly produced notes of Peter Strzok show: Strzok met with Bruce Schwartz, Lisa, and George at DOJ on March 28, 2017, where he noted Flynn Intel Group “satisfied the registration obligation” and “no evidence of any willfulness.” Nonetheless, “Bruce” decided to issue subpoenas to Flynn Intel Group “and more.” Exhibits C, D.

Whereas Laufman had been her villain, now Bruce Swartz is.

The thing is, that claim seems to be inconsistent with what her star witness, pro-Trump FBI Agent Bill Barnett, had to say in his interview with Jensen’s team (though since they’ve redacted Brandon Van Grack’s name it’s hard to tell). He seems to have said the Turkish case “was far stronger than the [Russian] investigation, in that there was specific information that could be investigated. BARNETT was working closely with [Van Grack]. BARNETT had worked with VAN GRACK on other matters.

In any case, the actual subpoena shows that it didn’t happen in March (as the purported date might suggest) but instead on April 5, a week later. And it wasn’t Swartz who filed it, nor even Van Grack, but EDVA AUSA William Sloan.

That doesn’t mean the date that Jensen’s team “inadvertently” applied to Strzok’s notes is wrong. It certainly may have taken a week to put together the subpoena.

But it does show that Powell’s current story doesn’t cohere with her past (still-pending) one.

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Sidney Powell Falsely Claims All Jeffrey Jensen’s Errors Have Been Corrected

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Sidney Powell doesn’t want anyone writing Judge Sullivan correcting the erroneous record that she and DOJ have entered in the Mike Flynn case. She wrote a letter asking him to strike the letters from lawyers for Peter Strzok and Andrew McCabe informing him that exhibits Powell received via Jeffrey Jensen’s review and uploaded to the docket and integrated into her accusations against others were false.

I guess she realizes there are additional errors that need to be fixed.

More remarkably, after taking a swipe at Strzok and McCabe in her letter (sounding like President Trump wailing for indictments), she claims that the Jensen “errors” have been corrected.

When Mr. Strzok and Mr. McCabe become parties to criminal proceedings, they are welcome to file objections in their own cases. Until then, they are free to write directly to the Department of Justice with their concerns, but they may not engage in ex parte or extrajudicial communications with the judge in this case, nor insert themselves into proceedings in which they have no standing. The Department of Justice has already taken appropriate action to correct the unintentional error. The defense only filed what it had been provided by the government.

This is, of course, false. The original claim not to know when the January 5, 2017 meeting was remains, as does Powell’s own attack on Joe Biden based off that false claim.

This ought to draw more, not less, attention to how Judge Sullivan’s docket has become a seeding ground for false campaign attacks.

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The “Scanned” Andrew McCabe Notes Weren’t [Just] “Scanned”

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The story DOJ offered yesterday to explain why they had altered several exhibits of undated notes raise more questions then they answered. In both cases where DOJ has admitted the exhibits had added dates — Peter Strzok and Andrew McCabe — those dates are problematic.

Plus, the excuse offered for those dates — that someone forgot to take off a clear sticky and post-it notes before copying the exhibit — can’t explain the third instance where DOJ added a date, where they incorporated it into the redaction of notes taken from a meeting involving ODAG’s office.

Indeed, the redaction may even cover an existing date (see what look like the slashes of a date, outlined in red, though that could also record the names of other attendees), with a date added in the redaction (outlined in yellow).

Moreover, there’s a problem with the excuse DOJ offered about the McCabe notes, which went as follows:

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production.

That is, DOJ is claiming that “someone” missed a blue “flag” when they were “scanning” McCabe’s notes and so inadvertently left a date — the wrong date, probably — on the exhibit, without leaving any sign on the exhibit itself.

The problem with this explanation is that we know precisely what a blue sticky left on an actual “scan” looks like. It looks just like what we say in the Bill Priestap notes submitted three times under two different Bates stamp numbers.

That is, if the document were just scanned, it would show up quite obviously, as it does here, and would be impossible to miss.

And yet this “scan” attributed to “somebody” doesn’t show up, possibly because the redaction covers it.

 

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Sidney Powell Submits Evidence Proving Materiality of Flynn’s Lies

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In my third post about how stupid Sidney Powell is, I present this exhibit, which DOJ thinks helps Mike Flynn. These are hand-written notes of an FBI attorney recording a meeting talking about Flynn’s interview the earlier day. Powell thinks this exhibit helps her because people at the meeting thought the Logan Act — which was never the key point of investigating Flynn — would be an “uphill battle.” She also focuses on FBI GC Jim Baker’s question about how you’d prosecute false statements when you wouldn’t prosecute the underlying crime — which, on January 25, 2017, might have been the Logan Act.

Still, the notes point out what a glaring counterintelligence problem Flynn was because of his overt lies about what he said to Russia.

For years Flynn’s boosters have claimed that FBI and DOJ didn’t recognize his lies as lies. Here they are doing so.

But one of the first things on the page (after a discussion of Flynn’s trip to Dominican Republic) — one of the first things these FBI lawyers discussed when trying to make sense of the National Security Advisor lying his ass off about his conversations with the Russian Ambassador is this:

Toll records. Did Flynn “talk to admin first”?

As I have noted repeatedly, Peter Strzok and Joe Pientka knew when they interviewed Flynn that he was lying about having raised sanctions with Sergey Kislyak.

What they didn’t know — because they hadn’t gotten National Security Letters on Flynn earlier in the investigation, as they normally would have — was whether or not Flynn’s claims not to have spoken to anyone in advance of his call, and not to have known about Obama’s sanctions, were true.

The way they planned to figure that out was to obtain Flynn’s toll records, which they did, in February and March. That showed, not only, that he was using a whole slew of phones. But that in addition to the lies the FBI identified immediately, he told other lies, lies to hide that he had consulted with Mar-a-Lago.

And Sidney Powell, bless her soul, has just provided proof that that was virtually the first thing FBI turned to try and figure out.

Once the FBI obtained proof that Flynn had consulted with those attending Donald Trump, the entire meaning of his lies would change. As would the Administration’s willingness to fight to reverse the investigation back to before the moment when Flynn’s consultations with Mar-a-Lago — the possibility he undermined sanctions on orders from Donald Trump — became the entire point.

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Sidney Powell Has Become No More than a Channel for the Fevered Rantings of Her Twitter Followers

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Sidney Powell has outdone herself in this motion for recusal, submitted 16 months after the appropriate time for such a motion. This thread unpacks it.

I want to look at the crazy-ass echo chamber that Powell is engaged in.

In her filing, she argues that because “a random sample of tweets of citizens in response to the hearing” suggest Judge Emmet Sullivan is biased, it supports a claim that he appears biased.

Because “unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label, [a]nd because ‘[d]eference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges,’ jurists must avoid even the appearance of partiality.” Al Nashiri, 921 F.3d at 233- 234. The court jettisoned any appearance of neutrality before and throughout the hearing. Judge Sullivan’s words and conduct prior to and during the hearing have had a profound negative affect on “public confidence in the integrity of the judicial process” and require him to recuse himself under §455(a) and §455(b)(1). Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). See Ex. A (a random sample of tweets of citizens in response to the hearing).

[snip]

The court’s hostile tenor made its abject bias resounding to thousands who listened or who read the transcript. Countless tweets from Americans who were watching what became a circus reflect their view of the federal judiciary. Ex. A. It was apparent that the court was desperate to find something wrong.

Here’s the list of tweets she draws on.

The first is “Undercover Huber,” one of the two most ardent recyclers of her garbage propaganda. For some reason Powell redacts his avatar but here it is:

Powell has likely violated PACER rules with this filing, as she submitted the personal information of a bunch of random people without redacting it. Suffice it to say that these people are responding to:

  • High Gaslighter Catherine Herridge
  • Powell herself
  • Mike Flynn himself
  • QAnon account @SSG_Pain
  • Jack Posobiec
  • Epoch Times
  • John W Huber
  • Lara Logan
  • President Trump
  • Tom Fitton
  • The Last Refuge

 

 

Some are fairly obviously bots.

But the craziest bit is that Sidney Powell includes these two tweets in her totally random collection of tweets which she has obviously searched for by searching on “Eric” and “Judge Sullivan” (which means they’re not random at all):

It turns out, however, that one of just a few that had that reaction to this hearing. The rest of tweets that come up on such a search invoke a more generalized conspiracy about a black judge being friends with a black former Attorney General.

That doesn’t matter to Sidney Powell. She’s got a point to manufacture.

Back in her motion to recuse, she suggests (having lauded Sullivan in the past in this case because of his actions in the Ted Stevens case) that the reason Sullivan did dismiss Stevens’ case but not Flynn’s is because Holder made the motion in the former.

There are only two material differences between the government misconduct here and that in the Stevens case. The first is that the government misconduct against General Flynn is far worse—and it goes all the way to the Obama oval office. ECF No. 248; Exs. D, E. The second is the name of the Attorney General. As the court noted on the record last week, “Eric” moved to dismiss the wrongful Stevens case—with prejudice—and the court granted it immediately on a two-page motion. Hr’g Tr. 09-29-20 at 90.

I think the suggestion is that if a black Attorney General had made the request here, Sullivan would have granted it.

And from there, she goes exactly where her Twitter nutjobs want her to, and demands — with no basis whatsoever — all communications between Emmet Sullivan and Eric Holder.

All communications and visits with Eric Holder about this case or General Flynn, identification of the number of visits Eric Holder has made to Chambers about this case or General Flynn, or other personal meetings regarding General Flynn with Eric Holder to whom Emmet Sullivan referred as “Eric” on the record in the hearing. Hr’g Tr. 09-29-20 at 89.

Powell’s fevered motions have literally become just the expression of the Id of her own crazed Twitter thread.

 

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McCabe Casts Doubt on the Date Added to His Notes, Too

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In my coverage of the way DOJ has added dates to undated notes, I’ve always said that I have no reason to believe that the date DOJ added to Andrew McCabe’s notes was erroneous.

Now I do.

In a letter that McCabe’s lawyer, Michael Bromwich sent to Judge Sullivan last week, he explains why the May 10, 2017 date added to McCabe’s notes couldn’t be remotely credible. That’s because he was busy cleaning up the Jim Comey firing.

The date “5/10/17” that appears on Exhibit B is not in Mr. McCabe’s handwriting and he did not enter the date that now appears there. Further, contrary to counsel’s claim, Mr. McCabe did not brief the Senate Intelligence Committee on anything on May 10. That was the day after President Trump had fired FBI Director Comey and Mr. McCabe was consumed with various other responsibilities. Mr. McCabe did participate in a public Senate Select Committee on Intelligence hearing and closed briefing on worldwide threats, along with other intelligence community officials, on May 11. Neither the public hearing nor the secret briefing had anything to do with Mr. Flynn. Counsel did not seek to confirm the accuracy of its claims with Mr. McCabe or us about Mr. McCabe’s notes before filing the Third Supplement.

Update: Bromwich is not saying that the date is not correct. He’s saying that the implication, created by the redaction, that McCabe briefed Flynn to SSCI on May 10, 2017 is incorrect.

These appear to be notes tracking McCabe’s day. The top half, redacted save the time and description, explains that at 5:15 PM on whatever day this was, McCabe was doing World Wide Threat hearing prep.

Then, on the same day but in no way related to it, he reviewed the Flynn case in some way or another.

The redaction also almost certainly splits the Flynn related information in half (note the bracket starting at “closed” and extending well into the redaction).

In any case, nothing in these notes suggest this happened after Comey’s firing, which is the point they’re trying to make of it.

Update: According to McCabe’s book, nothing happened after he attended a WWT prep session on May 10, because that took several hours, he had already been in two draining meetings at the White House that day, and he was pooped.

As the president requested, I went back to the White House that afternoon. When I arrived, at 2 P.M., the bodyguard Keith Schiller came down again and greeted me like I was his buddy, like someone he sees every day—Hey, what’s going on?

[snip]

When I left the Oval Office, I went straight to a prep session at the Bureau. Jim Comey had been preparing for two weeks to testify at the Senate Intelligence Committee’s Worldwide Threats Hearing—an annual event where the director of national intelligence and the heads of the FBI, CIA, National Security Agency, and Defense Intelligence Agency share their assessments of the most urgent threats to U.S. national security and answer questions from senators about those threats. Preparation for the hearing typically involves a number of lengthy background sessions with staff and a review of hundreds of pages of briefing material; it also requires drafting an official statement for the record.

[snip]

So when I left the Oval Office, I went straight back to a prep session that night. I had been to a lot of these meetings for Comey and Mueller—when I was involved in the prepping. Usually I had been the guy sitting at the right hand of the director, listening to everyone else’s contributions and trying to distill it all into better formulations.

Chiming in when you have a shapely little idea, I quickly discovered, is very different from sitting at the head of the table while a dozen people to your right and left argue the pros and cons of issue after issue, firing ideas and comments at you nonstop—all of which you have to take in while also assessing how those answers will be interpreted and processed by members of Congress, the president, and the media. I had never fully appreciated the complexity of that task. After two and a half hours of this, my tank was full. I had to get some sleep.

The passage makes clear that he had been a part of Comey’s prep before Comey was fired, and that prep had been going on for two weeks. Which suggests that McCabe could have attended a WWT hearing any time in the previous two weeks.

That’s not definitive, of course (though it was almost certainly written with the benefit of McCabe’s notes). But this passage suggests the date is wrong, and the Flynn briefing took place before Comey’s firing.

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DOJ Admits Jeffrey Jensen’s Team Added Erroneous Date to Peter Strzok’s Notes, Asks for Mulligan

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In a filing in the Mike Flynn case, DOJ has explained why an erroneous date was added to Peter Strzok’s notes from what DOJ has already submitted evidence happened on January 5, 2017.

In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. The government has also confirmed with Mr. Goelman and can represent that the content of the notes was not otherwise altered.

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production. Again, the content of the notes was not otherwise altered.

Along with the filing, they’ve included the three exhibits they added dates to (there’s a third where they added a date in a redaction covering over something that could be a date), asking that they be replaced.

DOJ offered no explanation about why they added an erroneous date that they’ve provided proof they know is erroneous to a filing that they had previously submitted without the erroneous date. Nor have they explained why this erroneous date range differs from the previous erroneous date range they gave to Sidney Powell that she used to launch an attack on Joe Biden.

I guess they’re hoping that Judge Sullivan was too tired after the long hearing last week to notice that that erroneous date had been worked into an attack by President Trump on Joe Biden just hours after the hearing.

Whatever they’re hoping, they’ve now admitted that Jeffrey Jensen’s team is either unbelievably incompetent, hasn’t read the evidence they claim they used to convince Billy Barr to dismiss the case, or simply tampering with the evidence to set up attacks from Sidney Powell and Donald Trump.

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Bill Barnett’s Second Gratuitous Swipe at the Mueller Investigation Collapses

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Shortly after FBI Agent William Barnett’s 302 came out, I pointed out his attack on Jeannie Rhee said more about his own workplace behavior problems than it did about Rhee. Because she asked questions on the Russian side of Mike Flynn’s exposure, he reacted hostilely, and even in response to a polite comment that she looked forward to working with Barnett, he responded with a dickish statement that he would not work with her.

In the 10 days since the release of Barnett’s 302, his attack on Andrew Weissmann has also collapsed.

Barnett offered this as an example to substantiate his claim that there was a “get Trump” attitude among some Mueller prosecutors, especially what he refers to as the “all stars.”

BARNETT said it sees there was always someone at SCO who claimed to have a lead on information that would prove the collusion only to have the information be a dead end. BARNETT provided an example: WEISSMANN said there was a meeting on a yacht near Greece that was going to be proof of collusion, “quid pro quo.” BARNETT said with a day or two the information was no substantiated.

In his book (completed before Barnett’s interview but released after it), Weissmann described such leads otherwise: as a lead dug up by the press that investigators had to chase down, often wasting a lot of time.

Now, however, the Special Counsel’s Office was enjoying a rare upside of working a high-profile case: As we began boring into the events of the campaign time period, a swarm of enterprising reporters was churning up their own evidence in parallel. At times, the stories the media published proved to be dead ends, which we, nevertheless, were obliged to spend time running down. These numerous leads would include our spending months debunking reports about Trump’s watering down support for Ukraine in the Republican Party platform during the convention—which would have been favorable to Russia’s interests in Ukraine and thus raised a red flag—and our running to ground, around the globe, the claim by a Belarusian call girl that she had tapes of Deripaska admitting to Russian election interference in the 2016 election.

Plus, as Weissmann explained to Politico the other day, Barnett was not in a position to know what Weissmann was doing.

Weissmann said he had a general awareness of who Barnett was but “never dealt with him” because Barnett was not assigned to his team. The top FBI agent and analyst assigned to the Manafort unit, Weissmann said, “got along really well.”

“I read that and I was trying to understand,” Weissmann said of Barnett’s complaints. “I just couldn’t make any sense of it because he seemed supportive of the [Flynn] prosecution but just generally negative about the office.”

Weissmann also wondered about the timing, noting Barnett interviewed with internal DOJ investigators in recent weeks, and his interview summary was made public just days later.

“It was certainly odd for that to be submitted in court so quickly,” he said. “But I’m not part of that litigation and I don’t know all of the ins and outs — I haven’t heard the government’s reasoning and maybe there is a rationale for it.”

DOJ is hiding Barnett’s apparently complimentary views on the main prosecutor Barnett worked with, the only one whose behavior is pertinent to the Flynn prosecution, while releasing his comments that show either a willingness to comment on parts of the investigation with which he’s unfamiliar or, in the case of Rhee, to repackage his hostile workplace behavior as an attack on the woman involved.

Update to reflect that the sex worker lead and the boat lead here are different. The one that Barnett references is Manafort’s trip with Tom Barrack immediately after leaving the case. That one also was part of the investigation for a long time, with the Barrack funding of Manafort even longer.

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Andrew McCabe Delays Testimony to SJC, Calling In-Person Testimony a “Grave Safety Risk”

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Virtually every book about the FBI or the Mueller investigation that has come out in recent years has described that Andrew McCabe is a superb briefer — meaning, in part, he can present complex issues to a hostile audience clearly. That’s why the reason his attorney, Michael Bromwich, gave for delaying testimony that was scheduled makes a lot of sense.

As a letter Bromwich sent to Lindsey Graham laid out, McCabe agreed to a voluntary interview in September, provided a series of conditions were met. One — that McCabe have access to his unclassified calendars and notes — has already been thwarted by DOJ, which refused to turn them over (as Bromwich laid out in a letter to Michael Horowitz last week, after inventing reasons not to share the materials that might make McCabe’s testimony more useful, FBI admitted they wouldn’t turn them over because of McCabe’s lawsuit against the Bureau).

But another of the conditions was that the testimony be in person. Bromwich noted that Republicans spoke over both Sally Yates and Jim Comey when they earlier testified remotely. “[A] witness answering questions remotely via videoconference is at a distinct disadvantage in answering those questions,” Bromwich wrote. “A fair and appropriate hearing of this kind – which is complex and contentious – simply cannot be conducted other than in person.”

But the COVID outbreak among those who attended the Federalist Society super-spreader event last weekend has made such in-person testimony too dangerous.

Mr. McCabe was still prepared to testify voluntarily and in person on October 6 as recently as the latter part of this past week. However, since that time, it has been reported that at least two members of your Committee – Senators Mike Lee and Thom Tillis – have tested positive for Covid-19, and it may well be that other members of the Committee and staff who plan to attend the hearing will test positive between now and then, or may have been exposed to the virus and may be a carrier. Under these circumstances, an in-person hearing carries grave safety risks to Mr. McCabe, me, and senators and staff who would attend.

McCabe is not wrong. There’s abundant reason to distrust Lindsey Graham’s claimed negative test. Mike Lee was haranguing publicly at several public events last week before he was diagnosed. And Chuck Grassley (who has far more mask discipline than his colleagues, but who was unmasked for part of the Comey hearing last week) refuses to be tested.

Still, it’s crazy that SJC has become too dangerous for a regular oversight hearing, but Lindsey still plans to push on with the Supreme Court confirmation process that caused that COVID outbreak.

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DOJ Has Submitted Proof They Knew the January 5, 2017 Meeting Took Place on January 5, 2017

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I’ve been harping on the process that facilitated Sidney Powell — and then President Trump — falsely blaming Joe Biden for raising the Logan Act in the context of the government’s response to Mike Flynn’s attempts to secretly undermine sanctions on Russia.

That process started on June 23, when prosecutor Jocelyn Ballantine sent an undated copy of Peter Strzok’s notes to Sidney Powell, explaining that they had been found as part of Jeffrey Jensen’s review. Using the royal “we,” she professed uncertainty about when those notes were written.

The enclosed document was obtained and analyzed by USA EDMO during the course of its review. This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.

Sidney Powell, referencing those notes, claimed they were believed to date from January 4 and asserted that they showed Joe Biden raising the Logan Act.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

Then, on September 23, Ballantine sent Powell a set of Strzok’s notes with a different Bates stamp than the first. When it was submitted — by Powell — to the docket, it had a date on it that did not appear on the earlier set: 1/4-5/17.

Then, five days after Powell (who has had multiple conversations with Trump’s campaign lawyer, Jenna Ellis, including about this case) loaded the now-dated notes onto the docket, President Trump publicly accused Joe Biden of giving “the idea for the Logan Act against General Flynn” in their first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

Thus it happened that an error introduced into the Flynn proceeding got turned into a campaign prop.

The thing is, DOJ has abundant proof that Jeffrey Jensen knew (or should have known) there was no uncertainty about the date when those notes were handed over to Powell. Indeed, if he did not know, then the entire premise of their motion to dismiss falls apart.

In Timothy Shea’s motion to dismiss, he obliquely attributed the radical change in DOJ’s view of Mike Flynn’s prosecution to Jeffrey Jensen’s review of the case, citing three dockets where Powell uploaded information that Ballantine had shared with the explanation (one, two) that the material came out of Jeffrey Jensen’s review.

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.”

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

All the purportedly “newly discovered” information, then, comes from Jensen.

Bill Barr cited Jensen’s review even more explicitly in an interview with Catherine Herridge.

What action has the Justice Department taken today in the Michael Flynn case?

We dismissed or are moving to dismiss the charges against General Flynn. At any stage during a proceeding, even after indictment or a conviction or a guilty plea, the Department can move to dismiss the charges if we determine that our standards of prosecution have not been met.

As you recall, in January, General Flynn moved to withdraw his plea, and also alleged misconduct by the government. And at that time, I asked a very seasoned U.S. attorney, who had spent ten years as an FBI agent and ten years as a career prosecutor, Jeff Jensen, from St. Louis, to come in and take a fresh look at this whole case. And he found some additional material. And last week, he came in and briefed me and made a recommendation that we dismiss the case, which I fully agreed with, as did the U.S. attorney in D.C. So we’ve moved to dismiss the case.

So this decision to dismiss by the Justice Department, this all came together really within the last week, based on new evidence?

Right. Well U.S. Attorney Jensen since January has been investigating this. And he reported to me last week.

In other words, both Shea and Barr represented that the case laid out in the motion to dismiss is the case that Jensen made that persuaded Barr to drop the prosecution.

That means we should expect Jensen to have deep familiarity with all the documents that — the motion to dismiss claims — formed the basis of his review.

I put a list of those exhibits here (along with an explanation that virtually everything cited in it was already known when DOJ first charged Flynn, when Michael Horowitz concluded the investigation was properly predicated, and when Bill Barr’s DOJ called for prison time in January).

Among those documents that Timothy Shea — and before him, Jeffrey Jensen — relied on to claim that DOJ should drop Flynn’s prosecution is the 302 from Mary McCord’s July 17, 2017 interview with Mueller’s team. The motion to dismiss cites McCord at least 26 times, relying on her interview to understand details of what happened in early January 2017, after the government discovered Flynn’s calls that explained why Russia didn’t retaliate for sanctions. Of particular note, the motion to dismiss that arose from Jensen’s analysis cites McCord’s interview regarding the discussion about the Logan Act — including that the investigation remained a counterintelligence one after discussing the Kislyak description. McCord’s description of the Logan Acti discussion reveals precisely who first raised it: ODNI GC Bob Litt.

General Counsel at the Office of the Director of National Intelligence (ODNI) Bob Litt raised the issue of a possible Logan Act violation. McCord was not familiar with the Logan Act at the time and made a note to herself to look it up later.

DOJ should never have let Powell form the conclusion that Joe Biden first suggested the Logan Act, because they were relying on a document that made it clear that Litt had already raised it. That’s where Jim Comey got the idea, before he went into that January 5, 2017 meeting.

Another document Shea and Jensen relied on in arguing that DOJ should end the Flynn prosecution is the 302 from Sally Yates’ August 15, 2017 interview with Mueller’s team. Shea’s motion to dismiss — based off Jensen’s analysis — cites Yates’ 302 at least 20 times, including in its discussion of the Logan Act. What Shea didn’t cite, but what shows up in the first substantive paragraph of the 302, is a description of how Yates first learned of the Flynn-Kislyak calls at a meeting at the White House on January 5, 2017.

Yates first learned of the December 2016 calls between (LTG Michael) Flynn and (Russian Ambassador to the United States, Sergey) Kislyak on January 5, 2017, while in the Oval Office. Yates, along with then-FBI Director James Comey, then-CIA Director John Brennan, and the-Director of National Intelligence James Clapper, were at the White House to brief members of the Obama Administration on the classified Intelligence Community Assessment on Russian Activities in Recent U.S. Elections. President Obama was joined by his National Security Advisor, Susan Rice, and others from the National Security Council. After the briefing, Obama dismissed the group but asked Yates and Comey to stay behind. Obama started by saying he had “learned of the information about Flynn” and his conversation with Kislyak about sanctions. Obama specified he did not want additional information on the matter, but was seeking information on whether the White House should be treating Flynn any differently, given the information. At that point, Yates had no idea what the President was talking about, but figured it out based on the conversation. Yates recalled Comey mentioning the Logan Act, but can’t recall if he specified there was an “investigation.” Comey did not talk about prosecution in the meeting. It was not clear to Yates from where the President first received the information. Yates did not recall Comey’s response to the President’s question about how to treat Flynn. She was so surprised by the information she was hearing that she was having a hard time processing it and listening to the conversation at the same time.

That long paragraph that very clearly describes the meeting at the White House captured in Peter Strzok’s notes directly precedes one that Shea (and so by association, Jensen) rely on heavily. According to Yates, Jim Comey was the one who raised the Logan Act in that meeting, not Joe Biden. And McCord, which they also rely on, makes it clear Comey got the idea from Litt.

Finally, the Shea motion to dismiss based on Jensen’s analysis relies on Jim Comey’s HPSCI testimony — one of just two documents that DOJ may not already have reviewed before Mike Flynn’s guilty plea. It cites the Comey transcript 16 times, including for a paragraph on the Logan Act.

As Sally Yates did, Comey described that the meeting at the White House involving the two of them took place on January 5.

I had not briefed the Department of Justice about this, and found myself at the Oval Office on the 5th of January to brief the President on the separate effort that you all are aware of by the Intelligence Community to report on what the Russians had done during the election. And in the course of that conversation, the President mentioned this [redacted] And that was the first time the Acting Attorney General, Sally Yates, had heard about it.

In no place does the Timothy Shea motion to dismiss, based off Jeffrey Jensen’s analysis, raise any questions about the veracity of these witnesses. Indeed, the motion relies on those documents as reliable descriptions of what happened in January 2017.

That means that either the DC US Attorney’s Office and Jeffrey Jensen are very familiar with the documents they rely on heavily to argue that Judge Sullivan must dismiss Flynn’s prosecution, in which case they affirmatively misled the court when they claimed to have no idea on what date the meeting described by both Yates and Comey occurred. That would mean, though, that Jensen affirmatively misled the court about a detail three months before the President used that error to make a campaign attack. And somehow an exhibit got altered to match that affirmative misinformation.

Alternately, none of the people claiming that these documents justify dismissing Flynn’s prosecution really know what these documents say.

Certainly, all parties should be on the hook for an exhibit that got altered to suggest the meeting could have taken place on January 4.

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