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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.

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.

 

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.

 

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.

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.

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.

DOJ Hid Material Comments about Brandon Van Grack from Judge Sullivan in the William Barnett 302

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The redactions on the 302 of William Barnett — the pro-Trump FBI Agent who recently gave an interview riddled with contradictions that Republicans have tried to use to undermine the Mike Flynn case — look like they were done by a five year old with finger paint.

It appears there were at least two and possibly three passes on redactions. There are redactions with rounded edges that appear to redact information that is actually classified. There may be more substantive redactions done of full sentences, including a passage marked to be “pending unsealing” by the court. There’s information on the investigation into Mike Flynn’s secret work for Turkey that is redacted, too, which is problematic, given that Judge Emmet Sullivan asked about that investigation into Flynn in Tuesday’s hearing. It’s clear from the unredacted bits of the 302 that Barnett had fewer problems, if any, with that investigation than he did with Flynn’s cover-up of his calls to Sergey Kislyak, so by redacting those discussions, the FBI is hiding Barnett making positive comments about part of the investigation into Flynn.

Then there’s a bunch of stuff — that includes names but also material that appears to be unflattering to General Flynn — that appears to have been redacted with block redactions after the fact, such as this redaction that seems to fade away to nowhere.

The redactions of names are a mess too, with irregular box redactions and in a few places, different typeface sizes.

That’s mostly aesthetics. But it suggests that — in spite of an FBI declassification stamp applied on September 24 — some or all of these redactions weren’t done by the people who normally do such things.

It’s the treatment of names where things delve into legally suspect area. The name of Barnett, Peter Strzok, and Andrew McCabe are not redacted. The names of other FBI and DOJ personnel generally are, though some have labels so you can follow repeated discussions of those people.

It’s in the treatment of Robert Mueller’s lawyers where things get inexcusable.

DOJ has a general rule that all Mueller AUSAs are public (as seen in the Mueller 302s released under FOIA, as well as phone records FOIAed by Judicial Watch), but all FBI personnel are not. Here, however, FBI left the name of some Mueller prosecutors unredacted, and redacted others. The unredacted names are those the GOP would like to spin as biased (including with an attack on Jeannie Rhee which actually shows Barnett being an abusive dick simply because Rhee tried to do her job):

Meanwhile there are at least two Mueller prosecutors whose names are redacted:

The FBI might be excusing this disparate treatment by making a distinction between lawyers who’ve left DOJ and those who haven’t.

Except that raises questions about whether there are unmarked references to Zainab Ahmad who, as the second prosecutor on the Flynn case, should show up in any interview of Barnett’s work with Mueller, but who has also left DOJ (and so would be unredacted if that’s the rule purportedly adopted here).

I have made several inquiries at DOJ for an explanation but gotten no response. But we know that someone at DOJ did these redactions, because Jocelyn Ballantine shared an unredacted copy of the 302 with Flynn’s lawyers, explaining that DOJ would submit the redacted copy to the docket themselves. Ken Kohl, who (multiple people have described) has a history of problematic actions, is the one who actually signed the filing uploading the 302 to the docket.

If I were Ballatine, I’d think very seriously about whether I wanted to remain silent after having witnessed how this 302 was submitted.

The result of redacting Van Grack’s name is that it hides from Judge Sullivan (and Amicus John Gleeson) many complimentary things that Barnett had to say about Van Grack:

DOJ’s star witness purportedly backing its claim that the investigation into Mike Flynn was abusive had a number of good things to say about the prosecutor that purportedly committed some of the abuse. Significantly, DOJ’s star witness, Barnett, claims that Van Grack agreed with Barnett in viewing KT McFarland’s lies in the least incriminating light.

And DOJ redacted Van Grack’s name, thereby obscuring that.

Sidney Powell made a number of allegations about Van Grack on Tuesday, including that Van Grack demanded Mike Flynn lie in the Bijan Kian case, something sharply at odds with Barnett’s claim that Van Grack interpreted McFarland’s answers in the least damning light. And Judge Sullivan asked about the significance of Van Grack’s withdrawal from the case Tuesday, something DOJ dismissed as irrelevant even while they were hiding material details about Van Grack.

So Brandon Van Grack’s conduct is central to the matter before Judge Sullivan. And DOJ is withholding favorable information about Van Grack by redacting his name in this 302, even while relying on the 302 for what DOJ claims is damning information elsewhere.

It would be clear legal misconduct to hide that information, effectively hiding evidence that debunks DOJ’s claims of abuse with a treatment of redactions that is plainly inconsistent with past DOJ practice (including on the release of a 302 discussed in Barnett’s own 302).

And yet that’s what DOJ has done.

With a Charitable Description that Bill Barnett Was “Confus[ed]” Jim Comey Undercuts the Agent’s Entire Interview

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Long into yesterday’s Jim Comey hearing, Lindsey Graham suddenly called a break. I got the feeling, watching him, that he had finally figured out the hearing was having the opposite effect as he had intended. Jim Comey was repeatedly explaining the import of the Russian investigation, distinguishing the Carter Page application from the rest of the investigation, and Democrats were reviewing all the things the Committee could have been doing rather than chasing three year old allegations.

After the break, the remaining Senators (John Kennedy and Marsha Blackburn) and Lindsey Graham seemed intent on dirtying up Comey a bit, even if required discussing stuff that had nothing to do with Carter Page.

Still, this exchange between Comey and Lindsey also didn’t seem to go the way Lindsey wanted. In it, Jim Comey undercut the credibility of the William Barnett 302 in plenty of time for John Gleeson or Emmet Sullivan’s clerks to use it in the Flynn motion to dismiss opinion. First, Lindsey asked Comey if he was aware that Barnett didn’t believe Flynn committed a crime.

Lindsey Graham: Are you aware that Mr. Barnett, who is the lead investigator of the Flynn case recently said that he did not believe there was a crime involving General Flynn?

Jim Comey: I read his 302 and I think it does say he thought that before January 5, or before Flynn was interviewed.

Comey answered that that was true before January 24. Implicit in Comey’s answer (and something that Gleeson pointed out explicitly in Tuesday’s hearing) is that when Barnett said he “believed FLYNN lied in the interview to save his job,” Barnett was confirming that Flynn had committed a crime, lying to the FBI.

Lindsey ignored that though, going on to misstate Barnett’s testimony in a significant way.

Lindsey: How normal is it for the lead investigator to believe that the person he’s investigating didn’t commit a crime, and went so far as to say he thought the whole team was out to get Trump. Is that a normal thing in the FBI? Is that something the court should consider as to whether or not this is a legitimate prosecution?

Barnett did not say “the whole team was out to get Trump.” He said, “there was a ‘get TRUMP’ attitude by some at the SCO,” and specifically excluded Brandon Van Grack from that (though DOJ hid that by redacting Van Grack’s name). He then said “it was not necessarily ‘get TRUMP’ but more the conviction there was ‘something criminal there.'” Barnett’s most significant claims to substantiate this involve a real lead Weissmann chased down (involving Manafort and Tom Barrack), and a description of himself being a dick to Jeannie Rhee because she was doing her job; both involve people he didn’t work with closely.

In response to Lindsey’s observation that Barnett repeatedly stated — in response to Jeffrey Jensen’s cues — that he didn’t think there was evidence of a crime against Flynn, Comey pointed out the fundamental problem with the entire 302. This wasn’t a criminal investigation. It was a counterintelligence investigation.

Comey: I think Mr. Barnett was confusing the nature of the investigation which is a little bit concerning, if he was working on it. It was a counterintelligence investigation, not a criminal investi–

Lindsey: No, see, here’s the point, Mr. Comey. You set Flynn up to get prosecuted. This was a counterintelligence investigation. And there was no there there. This man was the incoming National Security Advisor, he had every reason in the world to be talking to the Russians about changing policy, but this whole rogue thing, setting up an interview in the White House, going around normal procedures bothered a lot of people.

After interrupting Jim Comey as he was pointing out how Barnett’s own 302 discredits every one of his claims [even ignoring that Barnett claimed to be ignorant of four known pieces of evidence], Lindsey nevertheless repeats the point (and then goes on to misread some texts about liability insurance that Barnett himself had debunked in his 302).

This was a counterintelligence investigation.

The fact that Jeffrey Jensen kept asking about crimes is proof that Jensen wants the investigation to be something other than virtually every witness, except Barnett, has testified both contemporaneously, and since. Even answering the question about what crimes he saw seems to suggest that Barnett didn’t understand what he was doing, didn’t understand that he was conducting a counterintelligence investigation.

Only, that’s not what Bill Barnett said in January 2017, just weeks before the interview, when he drafted a closing communication for the Flynn investigation.

The FBI opened captioned case based on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.

Contrary to Comey’s least-damning interpretation, Bill Barnett wasn’t confusing whether this was a criminal investigation or a counterintelligence one. He noted in January 2017 that Flynn might have been unwittingly used by the Russians (and reading the transcripts, it’s obvious how Kislyak played to Flynn’s resentments and Trump’s ego.

When Barnett focused on crimes, rather than national security threats, he was playing a role.

And in playing that role, his interview will not withstand the kind of scrutiny he may one day face if — for example — his claims about Andrew McCabe’s micro-management get him deposed as part of McCabe’s lawsuit.

Over 72 Hours, Trump and Chuck Grassley Provide Emmet Sullivan Proof that Peter Strzok’s Notes Were Altered for Political Reasons

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Over the past 72 hours, the following events have proven not just that Peter Strzok’s notes were altered, but that that was done for political purpose.

It started on Monday, when Strzok lawyer Aitan Goelman sent Judge Emmet Sullivan a letter confirming that the handwritten dates on two sets of his notes were, “not written by Mr. Strzok.”

That the notes memorializing what Jim Comey briefed others about a January 5, 2017 meeting were altered is not in doubt. Sidney Powell and DOJ have already provided the original notes (which I’ve annotated to show that the notes did not originally have a date) and the altered ones (which I’ve annotated to note where a date has been added).

The second set of notes were provided to Flynn’s lawyers on September 23 and submitted to the docket on September 24. It’s not clear whether they were altered before or after they got sent from DOJ. I hope Judge Sullivan gets to the bottom of that question.

Then, in Tuesday’s hearing, Sidney Powell admitted not just that she has spoken with the President about this case (insanely asking him not to pardon her client), but also that she speaks — apparently regularly — with President Trump’s campaign lawyer, Jenna Ellis, betraying that Flynn’s efforts to blow up his prosecution are a matter of interest to Trump’s campaign.

Then, hours later, on Tuesday night, the President made this prepared attack on Joe Biden during the 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.

As I noted when Jeffrey Jensen handed over the first set of notes pretending to be uncertain about what date they were from, by altering the date about a meeting that has been publicly dated as January 5, 2017 for over two years, it presented a false chronology whereby Joe Biden suggested the FBI investigate Flynn for the Logan Act (which is what DOJ is falsely claiming was the only basis for investigating Flynn, even though every single witness and every single contemporaneous record has said Flynn was interviewed under an 18 USC 951 predication to see if he would tell the truth about his calls with Sergey Kislyak), and then Jim Comey returned to the FBI and ordered his minions to do just that.  That is, it would create the (false) possibility that the meeting at the White House happened, and then a discussion between Strzok and Page discussing the Logan Act started. The reality is that Strzok and Page were talking about it the day before the meeting.

From that false appearance, Powell asserted in a representation to Emmet Sullivan that the meeting was believed to have happened on January 4 and Biden apparently had been the one to suggest Logan Act, thereby suggesting (falsely) that Biden was the one who raised 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. That became an admitted pretext to investigate General Flynn.

That transparently false accusation that Sidney Powell (who has been speaking with Trump’s campaign lawyer) made on June 24 then showed up as a prepared attack in President Trump’s very first campaign debate on September 29. The altered notes appeared in the docket on September 24, and then five days later the President of the United States made a false claim that depends on the alteration.

Sidney Powell is using her purported defense of Mike Flynn as a campaign prop.

Yesterday, Chuck Grassley — who has been chasing all matter of conspiracy in the service of President Trump and is staffed by diehard Republicans — gave up the game. At the Jim Comey hearing, this exchange occurred.

Grassley: Did you ever speak with President Obama or Vice President Biden about any aspect of the Flynn case. If so, what did you discuss?

Comey: I remember the Flynn investigation coming up once. I think it was January the Fifth, when President Obama held me back to urge me to do the case in the normal way, and to let him know if there was any reason that he should not be sharing sensitive information about Russia with the Trump transition. I assured him that I would keep him informed and that I would conduct the investigation in that way.

Grassley [reading a prepared question]: During the January 5, 2017 meeting between you, President Obama, Vice President Biden, Sally Yates, and Susan Rice, did you mention that Flynn’s calls with the Russian Ambassador appear, quote unquote, “appear legit”?

Comey: I don’t remember using that word. If I used it I would have meant “authentic” and “not fabricated.” I wouldn’t have meant appropriate. But I don’t remember using that word.

It’s clear, from the way Grassley is reading a prepared question and the way he provides details about that January 5 meeting that he already knew of the meeting, and that that’s why he asked Comey the initial question in the first place.

Critically, an 87-year old Senator reading from notes his staffers — whose portfolios include many other tasks in addition to writing imagined gotcha questions based off Peter Strzok’s notes — stated as unquestionable fact that the meeting occurred on January 5. Unlike Jeffrey Jensen, they have no doubt about the date.

That’s not at all surprising. After all, Chuck Grassley first started pursuing this question around August 2017, when he obtained Susan Rice’s notes to the file recording the meeting (from unknown sources, but I find it interesting that Barbara Ledeen obtained it as if receiving it directly in discovery even as Robert Mueller got it).

But the question Grassley read came straight from Strzok’s notes, the ones that got altered. And even he knows — with access to far less evidence than Jeffrey Jensen — that the meeting happened on January 5.

Again, it’s not clear who altered the notes — DOJ or Flynn’s lawyers. But in a sense, it doesn’t matter. The first fraud on the court came when Jeffrey Jensen claimed there was any doubt about what date the meeting occurred. Yesterday, Chuck Grassley just made it clear that no credible person could believe that.

On a Key Issue in Mike Flynn’s Case — which FBI Agent to Believe — DOJ Argued against DOJ

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The epic five hour hearing in the Mike Flynn case just wrapped up.

The most notable events, one which may utterly sway Judge Sullivan’s opinion, were two details that would give Sullivan reason to say this is the exceptional case where he should not grant the motion to dismiss.

The first was Sidney Powell’s admission that she has spoken to the President about this case, and also spoken with Trump’s campaign lawyer, Jenna Ellis, about it, the latter apparently more than once. Powell tried to claim Executive Privilege for her conversation(s) with the President about the case, until Sullivan pointed out the sheer absurdity of that. Powell was never asked why she was speaking to a lawyer, Ellis, whose job it is to make sure the President doesn’t break any campaign finance laws about this case. Still, those admissions, handled with all the leaden aplomb that Powell exemplifies, will provide Sullivan ample basis (on top of Trump’s tweets and everything else) to prove that this was all politicized by the President.

The other detail that might really sway Sullivan was the judge’s mention of Aitan Goelman’s letter informing Judge Sullivan that someone — and Goelman did not speculate on who might have done this — altered the notes of his client. Sullivan said he was “floored” when he read the letter.  Later on, Powell accused Strzok of being the dirtiest FBI agent of all time. Some other things make me wonder — though this would make the logistics rather interesting — whether Powell was the one who altered the notes. In any case, Sullivan ordered that someone authenticate the filings submitted to the court.

Judge Sullivan was already bugged by the letter Sidney Powell wrote to Billy Barr asking that he do all the things he subsequently did, notably appoint a lawyer to review the entirety of the prosecution. The confirmation that Powell has been personally lobbying Trump’s (!!!) campaign lawyer for intervention seems to seal the proof that this is political.

Still, perhaps a more substantive problem with the pro-Flynn argument is that DOJ’s two representatives (Ken Kohl for the DC US Attorney’s Office) and the Solicitor General’s counsel, Hashim Mooppan) contradicted each other on a key issue.

Mooppan repeatedly claimed, “what if it were true that this was a witch hunt”? He relied, significantly, on two things. First, Bill Priestap’s notes clearly recording that FBI did the interview to figure out whether Mike Flynn would tell the truth.

Rather than focusing on what Priestap and every witness confirmed in real time and since was the purpose of the interview, Mooppan instead focused on Priestap’s notation of the debate before this, about whether they just wanted to get Flynn to lie. As John Gleeson pointed out, though, that would not make Flynn abnormal at all. That happens to defendants all the time. But in fact, Gleeson further noted, that’s not what happened; Peter Strzok and Joe Pientka actually cued Flynn with his own words to make sure he had an opportunity to fix the record, and Flynn did not do so. Moreover, all other witnesses said the same thing Priestap did: the point of the interview was to see if Flynn would tell the truth.

Plus, there’s a real problem with Mooppan’s reliance on Priestap’s notes. As the NYT reported, DOJ rushed to move to dismiss the case while Priestap’s 302 was being finalized.

Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan. They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court.

The department’s motion referred to notes that Mr. Priestap wrote around the bureau’s 2017 questioning of Mr. Flynn, who later pleaded guilty to lying to investigators during that interview. His lawyers said Mr. Priestap’s notes — recently uncovered during a review of the case — suggested that the F.B.I. was trying to entrap Mr. Flynn, and Attorney General William P. Barr said investigators were trying to “lay a perjury trap.”

That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case. He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation.

The department’s decision to exclude mention of Mr. Priestap’s interview in the motion could trouble Judge Sullivan, who signaled late on Tuesday that he was skeptical of the department’s arguments.

In spite of its ability to turn Bill Barnett’s 302 around in a week, DOJ has never disclosed Priestap’s 302 debunking this claim to Judge Sullivan. These notes don’t say what Mooppan falsely claimed to Sullivan they did. And that may become more clear in days ahead.

The other thing Mooppan relied upon, repeatedly, was the claim that Pientka and Strzok didn’t believe Flynn had lied after they interviewed him (he also relied on a Jim Comey comment, made without knowledge of all the evidence that FBI subsequently gathered, that corroborated the evidence that Flynn had lied). Except that’s not what they said (and some of the texts that DOJ has released make this clear). They believed Flynn either believed what he said (though they’d get proof later he did not), or that he was just a very accomplished liar.

Meanwhile, Ken Kohl, who was named Acting Principal AUSA at around the same time as this motion to dismiss, and who seemed genuinely ignorant of key details of the case but nevertheless wanted to claim that DC USAO wasn’t acting politically (Roger Stone’s case did not come up), said a number of things that conflict with what DOJ has already said (including that any of this was Brady).

Significantly, however, he seemed really impressed with Bill Barnett’s 302, perhaps because he doesn’t know the case well enough to know how many glaring contradictions there are in the 302 (which makes me wonder whether he was a source for WaPo’s supine treatment of the interview). Kohl talked about all the claims — belied by actual primary documents, basic logic, and gravity — Barnett made that don’t hold up to scrutiny.

The question of whether Bill Barnett sent pro-Trump tweets on his FBI phone — making him the mirror image of Peter Strzok — never came up in today’s hearing.

But John Gleeson did note that Barnett had none of the doubts that Mooppan claimed (falsely) that Strzok and Pinetka had.

That means, ultimately, DOJ was arguing against DOJ.

Mooppan claimed that Strzok and Pientka’s alleged doubts that Flynn lied — refuted by documents already shared with Sullivan — proved DOJ had to dismiss the case. Kohl, meanwhile, claimed that Barnett’s 302 — which showed he had absolutely no doubt that Flynn lied to the FBI — proved DOJ couldn’t prosecute the case.

There’s not actually a controversy here: At least Strzok and Barnett agree that Flynn lied, which should be all it takes. (Indeed, Barnett could testify that Flynn did lie, if DOJ needs an aggressively pro-Trump agent to put on the stand.)

But the Solicitor General’s office relies on the agents who said that Flynn was a good liar and DC USAO sides with the agent who states clearly that Flynn lied.

John Gleeson has noted that DOJ can’t keep its story straight from week to week. In today’s hearing, they couldn’t even keep their story straight from lawyer to lawyer.