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How Sidney Powell Misrepresents Her Evidence in Her Fake Brady Motion

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

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

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

Exhibit 1: A timeline

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

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

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

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

The timeline includes notable gaps including:

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

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

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

Exhibit 2: Cherry-picked Strzok-Page texts

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

For example, Powell claims,

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

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

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

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

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

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

Exhibit 3: Cherry-picked Comey memos

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

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

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

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

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

The memo in no way supports the passage.

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

Exhibit 4: CNN article

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

Exhibit 7: Two pages of the Steele dossier

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

Exhibit 11: Redline of 302

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Exhibit 13: WaPo reports on the Strzok-Page texts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Which sounds like the definition of sanctionably frivolous behavior.

13 Routine Aspects of FBI Investigations Sidney Powell Says Should Not Be Used with Mike Flynn

October 25, 2019/27 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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

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

To make her case that her client — who, she herself emphasizes, served for 30 years as an intelligence officer and so was no spring chicken about the ways of the world — nevertheless got duped by evil FBI officers attempting to entrap him by his own actions, Powell attacks the following utterly routine parts of FBI investigations:

People who know things relevant to an investigation are interviewed by FBI Agents, working in twos, who then write up a 302
The FBI doesn’t tape non-custodial interviews, though probably should record more than they do, as 302s can be dodgy
FBI Agents often don’t take notes while they’re interviewing someone, because that distracts from the interview
The FBI would prefer to talk to witnesses — all witnesses! — without lawyers present
FBI will prepare for interviews to ensure they are as useful as possible
FBI often watches how suspects respond to learning about potential criminal evidence against them
Prosecutors try to get suspects to plead guilty by showing them some, but not the most sensitive, damning information they have about them
The FBI usually doesn’t tell people it is investigating that it is investigating them
The FBI is allowed to open investigations when they obtain evidence that might indicate a crime — they don’t have to wait until they have evidence that proves beyond reasonable doubt someone is guilty before they try to collect evidence to try to figure out whether a crime has been committed and if so by whom
People considering pleading guilty meet with prosecutors before doing so to lay out what evidence they’ll be willing to share for a lenient plea deal
Even for cases that may one day end up in Emmet Sullivan’s court, suspects don’t get to review all the evidence the government has against them before they’re charged and even in Sullivan’s court, defendants only get to review the evidence that would be helpful to their defense (or sentencing) pertaining to the crimes in question, not other bad deeds
When the FBI thinks a hostile foreign country is trying to interfere with the United States, it investigates
People who work at DOJ work with other people who work at DOJ

Effectively, Powell’s argument is that none of these very routine things that happen with every single FBI investigation should have happened with an investigation of her client. She has a point that some of them — especially the way FBI writes up 302s — should be fixed. But that doesn’t mean her client is anymore innocent than any of the thousands of other defendants treated similarly.

There’s a ton more that I’ll do in a follow-up post, virtually all of which is misleading but which, because she waited to submit this until her reply brief, the government will need to ask for permission to lay out as false.

She makes just two interesting arguments of merit. First, she argues that Rob Kelner was conflicted when he advised Flynn to plead guilty in 2017.

The government fails to acknowledge, however, that Covington & Burling was the very firm that Mr. Flynn paid more than $1 million to investigate, prepare, and then defend the FARA registration in response to NSD/FARA section’s and David Laufman’s demands. See n.9 supra. By August 2017, when the government threatened Mr. Flynn with criminal charges related to the same FARA registration, former counsel were immediately caught in the vice of an intractable conflict of interest that they never escaped until Flynn engaged new counsel. By no later than August 2017, the conflict between Mr. Flynn and his former lawyers was non-consentable and not subject to waiver. Even if Mr. Flynn had been fully informed in writing of the conflict at that time, the lawyers were obligated to withdraw from the representation without regard to his wishes.

Some conflicts of interest are so likely to interfere with the effectiveness of counsel, and so destructive of the fairness of the proceeding, that courts must prophylactically override a defendant’s proffered waiver of the right to conflict-free counsel.

This is a point I raised the day after Flynn’s original sentencing hearing, which is proof that Emmet Sullivan had an opportunity to raise the conflict issue when he accepted Flynn’s second guilty plea. He did not, even while making damn sure that Kelner’s advice had been adequate.

Since that time, the government has alleged that Flynn lied to Kelner, which would eliminate any possible conflict, because Kelner advised Flynn based off what he told him.

Moreover, the issue of whether Flynn’s counsel was conflicted is utterly irrelevant to any questions about Brady, and so irrelevant to the stated purpose of this motion.

She also argues that precedent holds that Giglio is included in Brady.

The government dismisses its duty to produce impeachment evidence in a single sentence, claiming the Supreme Court has held its Brady obligation “does not extend to impeachment evidence.” United States v. Ruiz, 536 U.S. 622 (2002); Gov. Reply Brief, 7, Oct. 1, 2019. But Ruiz did not overrule Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within the general rule [of Brady.]”), and Bagley, 473 U.S. at 676-77 (stating emphatically “[t]his Court has rejected any such distinction between impeachment evidence and exculpatory evidence”). Both hold that impeachment evidence is encompassed within Brady, and no court has held that Ruiz radically altered the Brady/Giglio landscape. Rather, Ruiz focused on the voluntariness of the plea, and there was not even an allegation that any information was withheld.

This Circuit applies the Giglio and Bagley standard that “‘impeachment evidence . . . as well as exculpatory evidence falls within the Brady rule.’” In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999) (quoting Bagley, 473 U.S. at 676). This is because “evidence that impeaches the [government’s witnesses] is almost invariably ‘favorable’ to the accused, because by making the government’s case less credible it enhances the defendant’s” case. 185 F.3d at 893. When impeachment evidence is exculpatory, as noted in Giglio and Bagley, it is Brady like any other. McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003). The government cannot be the “architect of a proceeding that does not comport with standards of justice.” Brady, 373 U.S. at 88.

Even if she’s reading these precedents correctly, they’re irrelevant to the issue at hand: how Sullivan interprets his own Brady order to incorporate Giglio or not, since Flynn had waived rights to discovery by the time he pled guilty. And since that’s not entirely clear, there is little chance she’ll get Sullivan to sanction the prosecutors, which is one thing Powell wants. Plus, much of what Powell presents — including that Strzok believed Flynn showed no indices of lying — actually undermines her arguments that this stuff impeaches Peter Strzok or others. Still, I expect a rigorous discussion on how these precedents apply when Sullivan reviews this stuff on November 7.

There are two other details about this filing of acute interest. First, Powell notes that DOJ is still refusing to disclose a January 30 memo saying that they did not believe Flynn was an Agent of Russia. Mueller said Flynn’s ties were still being very actively investigated this summer. The line in the Mueller Report that addresses his ties to Russia is redacted. There may be a reason why DOJ is withholding that, one that Powell should give some consideration to.

Also, in a recent filing, the government revealed that there were interviews with Flynn that took place after January 24, at which (they claim) he continued to lie.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

If he did, in fact, lie in these, any one of them could be turned into a False Statements charge quite easily. And they would demonstrate that all her complaints about the January 24 302 are misplaced.

Curiously, Powell doesn’t mention the existence of these 302s in her rant.

Ultimately, though, her main argument is that Mike Flynn should not have been investigated the way the FBI investigates people. I’m not sure that’s going to get her what she wants.

The Giglio Brady Head Fake in Sidney Powell’s Latest

September 11, 2019/18 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

I’d like to congratulate Sidney Powell, whose motion to show cause is less batshit than the Brady motion I unpacked here (note, these motions work together, but we only got this most recent one today because it had been submitted under seal under the protective order until the government redacted the names of some FBI Agents).

Powell fancies both motions as demands for Brady material she claims has been withheld in violation of Emmet Sullivan’s standing order that the government produce Brady material even to defendants that, like Flynn, plead guilty. But the key to understanding the motion, in my opinion, comes in the middle of a list of things she demands. She asks not just for Brady material (that is, evidence that is exculpatory to the charges Flynn pled guilty to), but also for any new Giglio information discovered by the government in the last two years.

Brady or Giglio material newly discovered by the government (and by the Inspector General in his separate investigations) in the last two years.

Giglio material is information that would impeach potential witnesses.

To understand the distinction, consider Powell’s complaints about recent discovery she got, which is batshit insane on its face.

To substantiate her claim that the government has violated its Brady obligations, she points to materials Brandon Van Grack had just provided the week before this motion.

In fact, just last week, Mr. Van Grack produced an additional 330 pages that included information that any reasonable attorney would understand as Brady evidence in light of Special Counsel’s investigation and assertions that Mr. Flynn was an undisclosed “agent of Russia” or an “agent of Turkey.”2 That production also shows that Mr. Flynn passed his polygraph test in 2016 and his security clearance was renewed. This was at the same time the FBI seems to have been investigating him under the pretext that he was an “agent of Russia” and/or of Turkey. Interestingly, the new production also shows that James Clapper refused to assist in the investigation for Mr. Flynn’s security clearance, which Mr. Flynn received after a full investigation despite Mr. Clapper’s actions.

She makes several crazy ass claims in this passage. First, she boasts that Flynn was able to pass a polygraph in April 2016 at a time, she claims, that he was under investigation for being an agent of whatever country was offering the highest bid. It’s unclear when the investigation into whether he was a Russian agent started. But the investigation into whether he was a Turkish agent hadn’t started yet because the underlying conduct hadn’t started yet! Moreover, Flynn didn’t plead to being a Russian agent (indeed, the investigation into whether he was compromised by Russia may have been reopened and remain open), so whether that poly reflected about him being so is irrelevant to the charges (and therefore not Brady).

In other words, Powell is claiming that a successful April 2016 polygraph is proof of innocence for lies Flynn told in January 2017 about contacts with Sergey Kislyak in November and December 2016, and lies he told in March 2017 about a relationship with Turkey that began in July 2016 and he was actively hiding in August through November 2016, when he was getting Top Secret briefings with candidate Trump. On its face, it’s a batshit insane claim (which is probably why Sara Carter is running with it).

Oh, and remember, the FBI agents who interviewed Flynn were pretty impressed with his ability to appear convincing while telling what they knew were outright lies. Flynn is (unsurprisingly, for a lifetime intelligence officer) good at lying.

But that’s almost certainly not why Powell is interested in this polygraph (it’s also almost certainly not why she got it, either, but I’ll reserve that explanation for a later time). She’s interested in the poly because it shows that Mike Flynn was able to renew his clearance even though James Clapper, who had fired him, would not recommend he have it renewed. That is, she wants to highlight this as part of an argument that the investigation into Flynn and everyone else was part of a Deep State coup against Trump and his flunkies.

In fact, most of her non-crazy requests (and there are a number of them) fit that narrative too. It’s not about any exculpatory evidence against Flynn — he already got that. It’s about allegedly damning details about the people who investigated him, to include Peter Strzok and James Clapper and Jim Comey and a slew of other people. But that’s Giglio, material that might make these people look bad if they ever had to testify against Flynn, not Brady (and with the exception of Strzok, none would have testified against him, and FBI could have avoided having Strzok testify too).

It actually is an interesting question about the scope of Sullivan’s standing order (though as Van Grack made clear in yesterday’s hearing, Flynn actually got a lot of stuff Powell claims he should have gotten before he pled guilty before he did plead guilty first once and then a second time). And Sullivan may well rule that Flynn should get some of it. But none of that will change that he lied over and over about his behavior while in the employ of Donald Trump.

That’s not the only thing Flynn is doing with this motion (he also seems to be fishing for evidence of selective prosecution based on KT McFarland’s ability to clean up her testimony after Flynn flipped). But it is the central one.

Sidney Powell Gets Caught Lying in Hearing before Emmet Sullivan

September 10, 2019/113 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

The Mike Flynn status hearing just ended (I livetweeted it here). The outcome is that Flynn’s sealed Brady filing will be posted tomorrow, the government response will be in two weeks, Flynn’s reply will be on October 15. The Brady hearing will be October 31.

Emmet Sullivan tentatively set a sentencing hearing for December 18, the year anniversary for his aborted sentencing hearing last year.

The government said it will file a new sentencing memorandum, suggesting they likely will say he did not accept responsibility for his crimes. Those new filings are due on December 2.

Sidney Powell stated that she does not expect Flynn to withdraw his plea, though she did suggest the entire prosecution should be withdrawn because of egregious misconduct.

The hearing itself was less remarkable than Sidney Powell’s factually impaired briefing last week. But she did manage to get in at least one lie to Sullivan.

She claimed that Flynn had not been provided notice of the Lisa Page – Peter Strzok texts. Brandon Van Grack told the court that Flynn was told Strzok had a political preference before he signed his guilty plea. Van Grack also revealed that Flynn got texts that have not been otherwise publicly released. That means Senator Ron Johnson didn’t release texts that pertained to Flynn (and perhaps were derogatory to him) when he dumped all of them in December 2017.

Powell also complained that Flynn had not been provided notice that Jim Comey “set up the ambush interview” of Flynn. Van Grack made it clear that Flynn received it before sentencing and that Sullivan referenced it at the beginning of last year’s sentencing memo. Powell excused her outright lie about something Sullivan mentioned on the public record by saying the train was pretty far down the track by then.

Powell made much of the fact that the government had already decided that Flynn would not be charged as an Agent of Russia or with a Logan Act violation shortly after his FBI interview. Van Grack noted that that’s not the benefit that the government said Flynn had obtained with his guilty plea.

Finally, Powell suggested that there might have been a prior secret investigation into Mike Flynn based off the secret NSA database, attempting to reference the allegations in the Rosemary Collyer opinion that has to do with targeted surveillance of otherwise targeted US person subjects when they’re overseas. In short, it was rank nonsense based off of Sara Carter’s erroneous “reporting” on the opinion.

All in all, Sullivan took being lied to in pretty mellow fashion. We’ll see whether that continues after Van Grack lays out precisely how batshit some of Powell’s claims are.

Flynn Steps in It 2.0: Emmet Sullivan Will Make Sidney Powell Explain Why She Asked to Declassify Totally Irrelevant Secrets

September 6, 2019/124 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Back when Mike Flynn got cute in his sentencing memo, I warned that his false allegations about the circumstances of his investigation might backfire. It did. It led Judge Emmet Sullivan to order the release of his 302, showing how damning his lies were.

Flynn may have just done it again.

As I noted, in the joint status report submitted last week in the Mike Flynn case, his lawyers claimed they could not attend hearings on September 4, 5, 9, or 10, which were the dates the government suggested for a status conference.

The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

In response, Emmet Sullivan scheduled a status conference for September 10, a date Flynn’s lawyers had said they could not attend.

The fact that this hearing remains scheduled on September 10 may suggest Flynn’s lawyers were not telling the truth about their ability to attend a hearing on that date, in an attempt to forestall the status conference for 30 days as they had requested to do in the status report.

They were definitely lying about their ability to attend a hearing on September 5, because they did attend one, a sealed ex parte hearing before Sullivan where they discussed their demand that they all receive security clearances so they could review a bunch of evidence that doesn’t help their client.

As noted, in response, Judge Sullivan issued an order saying that before he’ll rule on whether they get security clearances, he will first rule on the Brady motion full of demands to see information that is not helpful to their client.

In response to Flynn’s motion that had basically said Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens Ted Stevens, literally invoking the Senator whose prosecution has led Judge Sullivan to distrust government claims to have complied with discovery obligations 21 times, Sullivan instead said “Fawaz Yunis.”

Fawaz Yunis is one of the first terrorists the US prosecuted in the US. In preparation for his trial, he demanded a bunch of transcripts of conversations an informant had with him, some of which a judge later characterized as “trivia.” Nevertheless the judge ordered the government turn over those transcripts. The government appealed, which led to the DC Circuit decision governing the Classified Information Procedures Act in DC that the government cited in the status report.

A defendant and his/her cleared counsel in a criminal prosecution may only obtain access to classified U.S. government information when such classified material is deemed both “relevant” and “helpful to the defense.” See United States v. Yunis, 867 F.2d 617, 623-24 (D.C. Cir. 1989).

The DC Circuit reviewed the transcripts in question and reversed the District Court’s decision, finding that it had abused its discretion in the CIPA process by ordering the disclosure of the transcripts to the defendant.

[T]he District Court abused its discretion in ordering the disclosure of classified information to a defendant where the statements in question were no more than theoretically relevant and were not helpful to the presentation of the defense or essential to the fair resolution of the cause.

In reaching that decision, the Circuit also noted the importance of protecting sources and methods regarding,

the time, place, and nature of the government’s ability to intercept the conversations at all. Things that did not make sense to the District Judge would make all too much sense to a foreign counter-intelligence specialist who could learn much about this nation’s intelligence-gathering capabilities from what these documents revealed about sources and methods.

This is trouble for Flynn’s latest attempt to (as all the DC lawyers I know continue to joke) snatch defeat from the jaws of victory on his defense.

That’s true, first of all, for the one classified item that Flynn might make a sound argument he should be able to obtain: the transcripts of his calls with Sergey Kislyak. The Yunis decision is directly on point to whether a defendant can get transcripts made in the course of national security investigations, and the DC Circuit upheld the principle that the government’s interests in hiding (say, from Russia) details of how it collects on Russian diplomats can limit discovery to Flynn in the interests of protecting the ability to wiretap Russian diplomats in the future.

The best thing that can happen for Flynn is that Emmet Sullivan — who has already asked whether Mueller considered charging Flynn with treason — will review the transcript and see for himself how damning Flynn’s comments were (though, given that at sentencing Sullivan said he has reviewed a lot of classified information in this case, he may already have seen it). If Sullivan reviews the transcript and believes it does nothing but make Flynn look more guilty, then Flynn is not going to get the transcript, and Sullivan may grow even more appalled by Flynn’s conduct.

Then there are the Strzok-Page texts Flynn has demanded. If Sullivan has to review those, he’ll have a sense of what Peter Strzok was looking at to make him so concerned about Trump’s ties to Russia. He’ll also see that Strzok was pursuing a range of counterintelligence cases, not a single-minded “coup” against first candidate and then President Trump. He’ll even see how aggressively Strzok pursued the guy who leaked details about Carter Page’s FISA order. Any derogatory bits about Strzok from these texts have already been released publicly; anything additional Sullivan would see would be other counterintelligence cases or derogatory information about Flynn and his buddies.

Worse still are the other completely unrelated things Sidney Powell demanded in her “Brady motion.” Using public evidence, I was able to show most of the demands were crap. In one case, Powell demanded the declassification of a memo that shows National Security Advisor Mike Flynn oversaw the NSA slow-walking a response to FISA. In another, Powell made a false claim that, if true, would mean her client had broken the law for 30 years as an intelligence officer.

Now Powell is going to have to make the case that this stuff is relevant, which is going to be very difficult for her to do.

And Emmet Sullivan is happy to sanction any lawyers who play games in his courtroom, whether they’re prosecutors or defense attorneys or Fox pundits.

Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

September 2, 2019/81 Comments/in 2016 Presidential Election, emptywheel, EO 12333, FISA, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michael Horowitz’s Credibility Is at Risk

August 30, 2019/25 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

I’m generally a fan of Michael Horowitz, DOJ’s Inspector General.

For example, unlike many people, I think the Inspector General report on Andrew McCabe makes a credible case that the Deputy Director got caught being less than fully forthcoming with the IG — though I also think McCabe’s lawsuit has merit and expect his claim that the report itself was not completed in proper fashion may prove key to that inquiry.

But yesterday’s Comey report — and the office’s continued failure to release a report on the non-Comey leaking that hurt Hillary Clinton in the 2016 election — threatens to do grave damage to his credibility.

As I laid out in this piece at The New Republic, I think the IG Report captures the way Comey didn’t meet the standards he set for whistleblowers and Hillary Clinton over his career. I get the feeling IG staffers find Comey just as insufferable as I do!

But that’s a problem, because the case they make that Jim Comey violated FBI rules in retaining memos documenting the highly inappropriate behavior of the President is shoddy, largely because the factual findings laid out make the claim he mishandled classified information dubious and the assessment of whether he released non-public investigative material and whether his memos recorded official acts in no way supports the claims made. The IG probably could have made a solid case on the latter issue; they just didn’t.

For example, there’s the conclusion that Comey improperly disclosed Trump’s request that he drop the investigation into Michael Flynn (i.e. “I hope you can let this go”) to his friend Daniel Richman, who then told the New York Times. For the first time, the report in the second section cites Comey’s colleagues’ response to his action. “Members of Comey’s senior leadership team used the adjectives ‘surprised,’ ‘stunned,’ ‘shocked,’ and ‘disappointment’ to describe their reactions to learning that Comey acted on his own to provide the contents of Memo 4, through Richman, to a reporter.”

The report later also claims there is “no doubt” that his colleagues used those words because he violated the FBI duty to safeguard investigative matters. But if there were truly no doubt, then the report could have shown that by citing those witnesses stating that themselves. Since the report relies on this language in its analysis of two different findings, those reactions should be included, with full context, in the factual findings section.

Then there’s the report’s claim that, in releasing that same memo, Comey had revealed non-public investigative information. To back this up, the report includes two lengthy footnotes on former Deputy Attorney General Sally Yates’s extensive testimony to Congress about her discussion with White House Counsel Don McGahn about Flynn—testimony that revealed a great deal about the status of the FBI’s Flynn investigation as it existed on the day she got fired. These footnotes attempt to argue that Yates’s disclosures were less substantive than Comey’s repeated references to Trump describing the calls Flynn had made to Russia’s ambassador (calls that were publicly disclosed) and insisting that Flynn had done nothing wrong. The second footnote describes that information by asserting, “Comey’s disclosure of Memo 4 provided the public with details relevant to the Flynn investigation.”

But what Yates’s testimony demonstrates is that Yates had, without objection from the Justice Department, introduced a great deal of information about the investigation into Flynn into the public record before Comey’s disclosure. Furthermore, the report cannot claim that he revealed details about the investigation itself. The actual new information that the memo disclosed was a description of how the president had, in highly unusual fashion, tried to end the investigation into Michael Flynn. The memo could only have disclosed investigative information if the president himself was being investigated—and he wasn’t yet.

The inspector general might have argued that fielding a request from the president to end an ongoing investigation is part of that investigation itself. But it tellingly does not lay out that case, instead merely claiming that such a request is “relevant” to the investigation.

Perhaps most problematically, the report provides abundant evidence of how unusual were Trump’s efforts to intervene in ongoing investigations, how his efforts broke all sorts of DOJ rules designed to protect investigative independence.

More generally, the report does not discuss whether presidential efforts to intervene in investigations, in violation of department rules about proper communication channels and chain of command, constitute the official business of the FBI director. The report does, however, lay out abundant evidence that such efforts are not normal. It quotes former FBI General Counsel Jim Baker stating that any one-on-one meetings are “quite outside the norm of interactions between the FBI Director and a President of the United States.” It describes Baker and Comey’s repeated efforts to address Trump’s direct communications: After Trump asked Comey to let the Flynn investigation go, the report quotes Comey as saying he “took the opportunity to implore the Attorney General to prevent any future direct communication between the President and me. I told the AG that what had just happened—him being asked to leave while the FBI Director, who reports to the AG, remained behind—was inappropriate and should never happen.”

After Trump called Comey directly about an intelligence investigation on March 9, 2017, Comey called then-Attorney General Jeff Sessions immediately, “to keep the Attorney General in the chain of command between [Comey] and the President.” The last memo records Comey reviewing again the proper channels for the president to intervene in investigations; the report’s discussion of it notes that Comey’s chief of staff shared the details in real time with the proper chain of command.

Is this what constitutes official business? This is what the inspect general’s report would have you believe: that the president asking Comey to do things that break the FBI’s rules is part of the FBI director’s job—and hence, Comey is at fault for airing that official business to his associates and ultimately the press. The report treats a memo recording the president demanding that he “‘lift the cloud’ created by the investigation into Russian interference in the 2016 presidential election” as official business, implying that Comey should have done what the president asked of him.

As the report reveals, a whistleblower provided a full copy of Comey’s memos to the IG Department. At that point, then, the IG had solid documentation of all the ways Jeff Sessions and others had failed to protect the independence of the Department.

There’s no sign the IG investigated that problem, which remains ongoing.

Instead, after months of pressure from Trump, it instead made a weak case that Comey broke the rules, without assessing all the other urgent problems revealed by the memos.

I actually don’t think the IG produced this report in response to pressure from Trump. The facts they do lay out — to the extent they lay out the facts — aren’t that supportive of Trump.

But I do think the IG presents abundant evidence of other problems at DOJ that remain pressing. And instead of focusing on those, they instead made a weak case against Jim Comey.

I don’t like Jim Comey’s sanctimony either. But given the way the IG focuses on Comey to the detriment of the other violations of DOJ process, it suggests this investigation was affected by more personal animus than anything Peter Strzok did.

Chuck Grassley and Ron Johnson Waste Taxpayer Dollars Looking for Foreign Hackers the One Place They Aren’t

August 21, 2019/20 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Last Wednesday, majority staffers for the Senate Finance and Homeland Security Committees wrote Chuck Grassley and Ron Johnson a memo that purports to update those Committee chairs of the status of an investigation into — well, the purpose of the investigation is actually not clear, but ultimately it’s an investigation designed to keep hopes of finding some smoking gun in Hillary’s servers that several other investigations haven’t found, an investigation that Grassley has been pursuing for four years.

As the memo describes, the most recent steps in this “investigation” involve some interviews that were completed and all related backup documentation obtained in April, four months ago.

We pursued this issue by requesting interviews with the two ICIG officials. On December 4, 2018, your staff, along with staff from Senators Feinstein and McCaskill, interviewed ICIG employees Mr. Rucker and Ms. McMillian. On December 20, 2018, you transmitted a copy of an interview summary of the Majority’s questions and the witness’s answers to the ICIG for a classification review. On January 30, 2019, the ICIG provided classified and unclassified versions of the interview summary, and the Office of Senate Security redacted the classified information. On February 28, 2019, the ICIG provided documentary evidence including copies of emails and notes from meetings. On April 9, 2019, the DOJ IG and ICIG provided a summary of their findings related to these Chinese hacking allegations.

The staffers use these investigative steps, completed four months ago, to make two insinuations: that State tried to classify Hillary’s emails as deliberative rather than classified (something long known, and easily explained by the known debate over retroactive classification for the emails).

In addition, the staffers report that one but not a second Intelligence Committee Inspector General employee remarked that FBI Agents seemed non-plussed by their concerns that China had hacked Hillary. The description of that claim in the topline of the memo drops Peter Strzok’s name as its hook.

[A]ccording to one ICIG official, some members of the FBI investigative team seemed indifferent to evidence of a possible intrusion by a foreign adversary into Secretary Clinton’s non-government server. The interview summary makes clear exactly what information Mr. Rucker and Ms. McMillian knew regarding the alleged hack of the Clinton server, as well as the information they shared with the FBI team, including Peter Strzok, the Deputy Assistant Director of the FBI’s Counterintelligence Division in charge of the Clinton investigation.

Wow, that Peter Strzok is some devious asshole, showing no concern about Hillary being hacked by a foreign government, huh? Presumably, that’s the headline the taxpayer funded staffers wanted: BREAKING Peter Strzok doesn’t care about foreign hacking or State trying to protect Hillary.

To the credit of press outlets that did cover this report, they did get what the more relevant conclusion to these documents is: After spending a year double-checking the work of the FBI, these Senate staffers found that the FBI was right when it said it had found no evidence Hillary’s server had been hacked.

What the backup actually shows is that an ICIG Inspector, Phil Rucker, found an “anomaly” while reviewing Hillary Clinton’s emails, an unknown Gmail for a company called Carter Heavy Industries in her email headers, which he thought could have been used to steal her emails as sent. At a meeting largely designed to explain the ICIG efforts to review Hillary’s email for classified information to Strzok, who had just been promoted to the DAD position at FBI a week earlier, Rucker shared what he found with Strzok and the FBI agent he had already been liaising with, Dean Chappell. The FBI already knew of it, and that same day would confirm the explanation: that tech contractor Paul Combetta had used a dummy email to copy over Hillary’s emails as he migrated Hillary’s email onto a Platte River server.

When interviewed about all this three years later, after Peter Strzok had become the villain in Donald Trump’s Deep State coup conspiracy, Rucker accused Strzok of being “aloof and dismissive” of his concerns.

Mr. Rucker said that Mr. Chappell was normal and professional as he had come to know him to be, but that he didn’t know anything about Mr. Strzok prior to the meeting. Mr. Rucker said that Mr. Strzok seemed to be “aloof and dismissive.” He said it was as if Mr. Strzok felt dismissive of the relationship between the FBI and ICIG and he was not very warm. He said that Mr. Strzok didn’t ask many questions including any about SAP related issues. He said the meeting lasted approximately 30 to 60 minutes and that only people from the FBI attended; there were no employees from DOJ. Mr. Rucker said that he knows that an FBI attorney was present, but he cannot remember the person’s name or even whether it was a man or a woman.

[snip]

Mr. Rucker said that he discussed SAP with the FBI. He said he discussed another of Secretary Clinton’s emails that they were never able to quite figure out. He said he verbally presented this information to Mr. Strzok which lasted only for a minute or so. He said that he doesn’t think he mentioned Carter Heavy Industries by name, but only the appearance of a Gmail address that seemed odd. He said that Mr. Strzok seemed “nonplused” by the info, and that he didn’t ask any follow-up questions. He said that Mr. Chappell seemed familiar with the discovery and he felt like Mr. Chappell was walling Mr. Rucker off intentionally as an investigator would, to protect the investigation.

That last detail — that Chappell seemed familiar with the discovery — is key. In fact, the emails sent in advance of the February 18, 2016 meeting reveal that several weeks earlier, Rucker had already shared this anomaly with Chappell, and Chappell had told him then that he already knew about it.

Along with making accusations about Strzok, Rucker changed his story about how strongly he believed that he had found something significant. The day before Chappell told him the FBI was already aware of the email, Rucker had emailed him that the anomaly was probably nothing.

Additionally, he wanted me to run something that I found in my research of the email metadata past you or someone on the team. It’s probably nothing, but we would rather be safe than sorry.

But when interviewed last year by Senate staffers seeking more evidence against Strzok, Rucker claimed that until a news report explained the anomaly in 2018, he had 90% confidence he had found evidence that China had hacked Hillary’s home server, and still had 80% confidence after learning the FBI had explained it.

Rucker: Mr. Rucker said that he didn’t find any evidence in the remainder of the email review they conducted, but that based on the subpoena issued by the FBI in June 2016 which he learned about this year through a news article, it decreased his confidence level from 90% to 80%.

Meanwhile, the one other ICIG employee interviewed last year, Jeanette McMillan, described what Rucker claimed was dismissiveness as adopting a poker face.

[T]hey provided the information to Mr. Strzok who found it strange. Even before their meeting with Mr. Strzok, Dean Chappell of the FBI informed them that he was aware of the Carter Heavy Industries email address. She said that she doesn’t know whether Mr. Chappell knew before they dropped off the original packet in January 2016, or if he learned of it afterward. News of this email address being found on Secretary Clinton’s emails wasn’t shocking to them, she said, but they took It seriously.

[snip]

[T]he FBI employees in attendance were “poker faced.”

In other words, what the backup released last week actually shows is a tremendous waste of time trying to second guess what the FBI learned with the backing of subpoenas and other investigative tools. To cover over this waste of time, Grassley and Johnson instead pitch this as a shift in their investigation, this time to examine claims that Strzok wasn’t concerned about State arguing that emails weren’t classified (and probably an attempt to examine the document, believed to be a fake, suggesting Loretta Lynch would take care of the Hillary Clinton investigation).

Staff from the Intelligence Community Inspector General’s office (ICIG) witnessed efforts by senior Obama State Department officials to downplay the volume of classified emails that transited former Secretary Hillary Clinton’s unauthorized server, according to a summary of a bipartisan interview with Senate investigators.

In fact, in the “summary” released, McMillan told Senate investigators that, “If anything, there were problems at State with upgrading of information,” exactly the opposite of what Grassley and Johnson claim in their press release.

And that word — summary — should raise a lot of questions. It’s not a transcript; in most cases, the report is a paraphrase of what the witnesses said. Moreover, it’s only a “summary” of what Majority staffers asked. Minority staff questions were not included at all, as best demonstrated by this nearly hour-long gap in the “summary.”

Because of the way Grassley brought this “investigation” with him when he assumed the Chairmanship of the Finance Committee, this release — from Chuck Grassley as Finance Committee Chair and Ron Johnson as Homeland Security Chair — effectively did not involve the Ranking members of the committees that did the work — Dianne Feinstein as Judiciary Ranking member and Claire McCaskill as HSGAC Ranking member.

To put what a colossal misuse of taxpayer funds this is, consider, first of all, that Grassley has been pursuing this for over four years.

Last fall, Majority staffers actually asked Rucker how ICIG came to be involved in the Hillary investigation.

How did ICIG come to be involved with the Secretary Clinton email investigation?

Rucker: – Mr. Rucker said ·that on March 12, 2015, the Senate sent a letter to ICIG requesting assistance regarding a Russian hacker who allegedly broken into Sidney Blumenthal’s email account. He said that the Sidney Blumenthal emails looked legitimate and were not at the SSRP level. He said that [redacted], a former CIA employee who worked with Blumenthal, was the author of most of the material. That was determined in part, he said, based on his writing style. Shortly after wards, he said, ICIG received another Senate request for assistance, this timein relation to the email practices of several former Secretaries of State including Secretary Clinton. He said that through ICIG, he was brought in to assist State in reviewing the email information in June 2015.

But they knew the answer to that. As their own staffers tacitly reminded Grassley and Johnson, Grassley has been pursuing this since 2015.

Your investigation began in March 2015 with an initial focus on whether State Department officials were aware of Secretary Clinton’s private server and the associated national security risks, as well as whether State Department officials attempted to downgrade classified material within emails found on that server. For example, in August 2015, Senator Grassley wrote to the State Department about reports that State Department FOIA specialists believed some of Secretary Clinton’s emails should be subject to the (b)(1), “Classified Information” exemption whereas attorneys within the Office of the Legal Advisor preferred to use the (b)(5), “Deliberative Process” exemption. Whistleblower career employees within the State Department also reportedly notified the Intelligence Community that others at State involved in the review process deliberately changed classification determinations to protect Secretary Clinton.1 Your inquiry later extended to how the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) managed their investigation of the mishandling of classified information.

That means that this effort — to misrepresent an interview conducted in December as a way to introduce new (and obviously bogus) allegations against Strzok — is a continuation of Barbara Ledeen’s efforts to prove some foreign government had hacked Hillary’s home server, as laid out in the Mueller Report.

Ledeen began her efforts to obtain the Clinton emails before Flynn’s request, as early as December 2015.268 On December 3, 2015, she emailed Smith a proposal to obtain the emails, stating, “Here is the proposal I briefly mentioned to you. The person I described to you would be happy to talk with you either in person or over the phone. The person can get the emails which 1. Were classified and 2. Were purloined by our enemies. That would demonstrate what needs to be demonstrated.”269

Attached to the email was a 25-page proposal stating that the “Clinton email server was, in all likelihood, breached long ago,” and that the Chinese, Russian, and Iranian intelligence services could “re-assemble the server’s email content.”270 The proposal called for a three-phase approach. The first two phases consisted of open-source analysis. The third phase consisted of checking with certain intelligence sources “that have access through liaison work with various foreign services” to determine if any of those services had gotten to the server. The proposal noted, “Even if a single email was recovered and the providence [sic] of that email was a foreign service, it would be catastrophic to the Clinton campaign[.]” Smith forwarded the email to two colleagues and wrote, “we can discuss to whom it should be referred.”271 On December 16, 2015, Smith informed Ledeen that he declined to participate in her “initiative.” According to one of Smith’s business associates, Smith believed Ledeen’s initiative was not viable at that time.272

[snip]

In September 2016, Smith and Ledeen got back in touch with each other about their respective efforts. Ledeen wrote to Smith, “wondering if you had some more detailed reports or memos or other data you could share because we have come a long way in our efforts since we last visited … . We would need as much technical discussion as possible so we could marry it against the new data we have found and then could share it back to you ‘your eyes only.'”282

Ledeen claimed to have obtained a trove of emails (from what she described as the “dark web”) that purported to be the deleted Clinton emails. Ledeen wanted to authenticate the emails and solicited contributions to fund that effort. Erik Prince provided funding to hire a tech advisor to ascertain the authenticity of the emails. According to Prince, the tech advisor determined that the emails were not authentic.283

Remember, Ledeen was willing to reach out to hostile foreign intelligence services to find out if they had hacked Hillary, and she joined an effort that was trawling the Dark Web to find stolen emails. She did that not while employed in an oppo research firm like Fusion GPS, funded indirectly by a political campaign, but while being paid by US taxpayers.

Chuck Grassley is now Chair of the Finance Committee, the Committee that should pursue new transparency rules to make it easier to track foreign interference via campaign donations. Ron Johnson is and has been Chair of the Homeland Security Committee, from which legislation to protect elections from foreign hackers should arise.

Rather than responding to the real hacks launched by adversaries against our democracy, they’re still trying to find evidence of a hack where there appears to have been none, four years later.

Update: For some reason I counted 2015-2019 as five years originally. That has been fixed.

On Same Day Peter Strzok Sues for His Termination, Judicial Watch Releases Mostly Redacted List of FBI Leakers

August 6, 2019/38 Comments/in 2016 Presidential Election /by emptywheel

Peter Strzok is suing the Attorney General, FBI Director, and DOJ for his termination, arguing two key things. First, the government overrode the decision of OPR Assistant Director Candice Will, who should have been the “deciding official.” He’a also arguing that the decision came as a result of relentless pressure from the President and with evidence of bias.

To demonstrate bias, Strzok notes that Trump has not responded even when people — he points to Kellyanne Conway but notes she’s just one of numerous examples — who has been found to violate the Hatch Act.

The Trump Administration has consistently tolerated and even encouraged partisan political speech by federal employees, as long as this speech praises President Trump and attacks his political adversaries. For example, President Trump rejected the recommendation of his own Office of Special Counsel that advisor Kellyanne Conway be removed from her job for repeatedly violating the Hatch Act by attacking former Vice President Biden and publicly advocating for and against various U.S. Senate candidates. When asked about the OSC’s recommendation, Mrs. Conway responded “blah, blah, blah…If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”

But he also claims that “no actions have been taken” against the FBI Agents who showed bias against Hillary Clinton during the election, not even those who leaked negative information about her.

During the Trump Administration this viewpoint discrimination has infected the FBI as well. While Special Agent Strzok and others who expressed negative opinions of President Trump have been subject to administrative punishments of various degrees of severity, no actions have been taken against agents who expressed harsh criticism of Secretary Clinton during the 2016 campaign, or those in the New York Field Office who leaked negative information about Secretary Clinton to the Trump campaign in the weeks before the election.

I’ve long noted that if Democrats asked DOJ Inspector General for an investigation specifically focused on bias against Hillary Clinton, it would elicit a specific report, which would make it very clear Trump was — if anything — treated better by the FBI than Hillary was.

That’s a failure of the Democrats in Congress.

That said, today Judicial Watch released the results of a FOIA (they often sit on releasing FOIAs for political gain) into the results of FBI OPR investigations of Agents who leak information, hoping to focus attention on Andrew McCabe’s termination.

The FOIA makes it clear that Jeff Sessions made the decision to fire McCabe. (Strzok’s suit notes that Deputy Director David Bowdich — McCabe’s replacement — made the decision to fire Strzok.)

The FOIA shows there were just 14 referrals to OPR for leaking, a number of which would be too early for anything coming out of an investigation into NY Field Office leaking. Those referrals include the leaking of Grand Jury, law enforcement sensitive, or classified information (4.9) and leaking of sensitive information, which is what McCabe got fired for (4.10).

The only other people who were fired like McCabe were also referred for lack of candor, not under oath and/or under oath.

That says, even if any of the behavior parallel to Strzok’s did get referred, no one was fired unless they lied (and he did not lie).

At the very least, Strzok’s claim that no one from NY Field Office has been similarly treated as he has may get him to discovery. And that may, in turn, do what the Democrats have not done: show that there was far more bias and leaking against Hillary, but that none of those people have been chased out of the FBI.

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

June 27, 2019/63 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

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

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

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