Monday, July 29, 2019

Sidney Powell Last December: Mueller Destroyed Evidence, Obstructed Justice

While researching other things last night I came up with an article written by Sidney Powell, back in December of 2018. The article, New Facts Indicate Mueller Destroyed Evidence, Obstructed Justice, in my view sheds light on the likely legal end game Powell is looking at now that she's representing Michael Flynn. All of this plays out in the context of the government's obligation to disclose to the defense what's known as "Brady material"--exculpatory information that the government may possess but that the defense may not be aware of. Powell has already told the court that she needs clearance to review classified documentation--documentation that Flynn's prior legal team never had access to.

I believe this is an indication that, once her review of the case file is completed, Powell will seek to withdraw Flynn's guilty plea and have the case dismissed, citing prosecutorial misconduct in various forms--which she describes in her article. In reviewing the case in light of the then known facts (IOW, as of December, 2018), Powell covers some of the same ground that I also covered in Briefly Noted: The Flynn FD-302; Levin And York, which offers a pretty good intro to the significance of FBI FD-302s. The existence of the classified exculpatory DIA information has also been known, but Powell's presentation ties all this together in, as I said, a very lucid package.

That said, here are the most relevant portions of the article. The entire article is quite lucid and not overly lengthy:

The Supreme Court held long ago in Brady v. Maryland that the Constitution requires the prosecution, which holds all the cards in a criminal case, to give the defense all evidence favorable to the defendant, whether it impeaches a witness, mitigates punishment or shows his innocence. Indeed, the burden is on prosecutors to find anything in the possession of the government that is favorable to the defense. 
From the minute Judge Emmet G. Sullivan received the case against Lt. Gen. Michael Flynn, which will be decided on Tuesday, he ordered Mueller to provide the defense with all Brady material. Last week, Judge Sullivan specifically ordered Mueller to produce any FBI interview reports — called 302s — or memoranda relevant to the original interview of Gen. Flynn. Ironically, Iowa Sen. Chuck Grassley has been requesting the agents’ notes and 302s for two years. Did Mueller comply? 
Remarkably, but not surprisingly to those who have read my book, Mueller has thumbed his nose at Judge Sullivan’s order. He produced only a 302 created by his own squad seven months later from his own agent’s interview of none other than the infamous, fired-for-bias, disgraced, Trump-loathing, former Agent Peter Strzok ... 
The evidence indicates Mueller has destroyed or is suppressing Brady material. There was an original 302 created within five days — by FBI protocol — of the Jan. 24, 2016 ambush interview of General Flynn by two agents — Strzok and Special Agent Joe Pientka. It is mentioned in the Strzok-Page text messages and on page four of the recrafted 302 Mueller filed. Comey read the original 302 before he was fired. 
[That original 302] existed — as Grassley well knows. It was written by Agent Pientka, who also took extensive handwritten notes, whose name is redacted from Mueller’s filing, and who seems to have disappeared. Where are the original 302, his notes, and where is Agent Pientka? Grassley has been trying to get access to all three for almost two years. 
Mueller’s filing confirms that Agent Pientka was assigned to take notes of the interview. Judge Sullivan’s order encompasses the production of those notes. Where are they? Were they destroyed despite Grassley’s longstanding request and Judge Sullivan’s original Brady order? The failure to produce them is another Brady violation that warrants the dismissal of the charges against Flynn and warrants holding Mueller and his team in contempt of court. 
And no doubt Mueller is aware of other Brady material in the possession of the government. There are two important sets of information being withheld from the defense under the guise of classification. 
According to California Congressman Devin Nunes speaking on Laura Ingraham’s program last week, there is testimony from none other than former FBI Director James Comey himself, speaking before House committees, that is exculpatory of Flynn. ... 
John Solomon reported, and Grassley has identified, information in the possession of the DIA that is exculpatory of Flynn. Apparently, the information remains classified ... but that does not absolve Mueller of his obligation to produce it to the defense. 
It gets worse. The Inspector General of the Department of Justice reported late last week that Mueller wiped Peter Strzok’s cell phone of all messages during the crucial time he was working for special counsel. The IG was unable to recover any text messages from it. 
This was after the inspector general informed Mueller of the extreme bias of Strzok and Page ... Not only did Mueller hide this development from Congress, but he destroyed evidence on Strzok’s phone and allowed DOJ to do the same for Page’s phone. That’s a crime. Mueller put Paul Manafort in solitary confinement for simply trying to contact a witness. 
... For Mueller to destroy this evidence is blatant obstruction of justice that warrants his immediate termination. The same is true for Deputy Attorney General Rosenstein who was “overseeing” it at the time. 
... The evidence strongly suggests Mueller violated Brady, destroyed or suppressed evidence, and obstructed justice in violation of 18 USC §1512(c). He has disgraced himself and the Department of Justice. Mueller’s time is up.

Here I reproduce the most relevant portion of my earlier post, regarding FD-302s:


I'm sure everyone has heard a lot about FBI "302s", but it may be worthwhile to go over the basics.

Often you'll find it said that a 302 is an agent's "interview notes". That's both true and not true--or, not entirely true. When an agent conducts an interview--i.e, potentially, simply speaks to someone--but depending on circumstances, he may take written notes. Those notes will be retained as evidence in what used to be called a 1A envelope. Those notes serve as backup for and confirmation of the contents of the actual 302, which is formalized summary of the interview/contact/investigation when it is anticipated that it could become the subject of testimony at a trial. So, since it's a summary it's true to say that these are "notes," but they can be much more extensive than the handwritten notes.

If you're saying to yourself, wait a minute, that means a 302 is classic hearsay--you're right. But the 302 is nevertheless a powerful tool for the prosecution. Why that's so is explained at this very informative and readable blog: What is an FBI 302? The Problematic Nature of FBI Agents’ Interview Memos (note that the author correctly refers to the 302 as a "memo" rather than as "notes"). I'll summarize it a bit.

First the author describes the nature of a 302 as an interview memo. Then she moves on to describe the difficulties involved in creating such a memo. Simply put, these types of interviews are rarely scripted events. The aim is to get the interviewee talking and keep them talking. As a result the interview or, really, conversation may range over any number of topics. When it comes time to do the 302, however, the agent will want to stick to what he views as the essentials and construct an integrated and orderly account of what was said about those essentials. Much may be left out, not for nefarious reasons but simply in the interests of providing a connected account of the main topic of interest.


The FBI clearly has a strong interest in maintaining its reputation and the reputation of its agents for fairness and integrity. It therefore instituted rules for timely reporting of interviews. I couldn't find any documentation, but I can tell you that in my time--and there's no reason to think it's any different now--we operated under what was known as the "Five Day Rule". You were supposed to get the interview finalized in 302 form within five days--and preferably sooner. The reason is obvious: 302s are represented as being the "contemporaneous" recollection of the agent and are used to refresh his recollection.

And that brings us to the FBI's interview of Michael Flynn. Flynn was interviewed on January 24, 2017, by Agents Peter Strzok and Joe Pientka. The 302 of that interview was finalized 3 weeks later on February 14, 2017. We know from the text messages that Strzok--whatever else he may have been--was a hard worker who got his paper work out ASAP. Any suggestion that he sat on his interview notes and delayed finalizing the 302 of this supremely important interview--the most important of his lfe, most likely--is simply a non-starter.

The real problem, as has been widely reported, is that Strzok and Pientka came back from their interview basically convinced that Flynn had been honest with them. The result was, as CTH puts it, that the 302 went through a "consultative" and "deliberative" process, which Andy McCabe--who wasn't even present at the interview--making suggestions for revisions.

This is hugely problematic for any claim that this 302 is a "contemporaneous" account of the interview, from two perspectives:

  1. The time delay alone vitiates the claim to contemporaneity; and
  2. The fact that a superior for the interviewing agents deliberated with them over the wording interjects both a non-witness perspective but also a motive for the agents to change their recollections.

It's simply an outrage.

Joe Pientka apparently objected to this and was, at the least, a hard sell. At last report, he was being interviewed by IG Horowitz, and this should have several people at the FBI and DoJ veryworried. It should have them, as the phrase goes, considering their options.


  1. This has been a good summer for those of us seeking the truth to the Russia Hoax. Something tells me that fall and winter will be even better.

  2. Based upon your presumption that Powell will seek to retract Flynn's guilty plea due to withholding Brady evidence, I think that we're going to see some shocking abuses highlighted soon. Abuses that will show how bad the Deep State is, how much they have to lose, how incestuous the relationships are and how pervasive.

    1. I think you're right. OTOH, Barr can't simply quash prosecutions that are in the hands of a USA, but OTOH what will happen is that when those prosecutions are forcefully challenged--as is happening now--those prosecutors will find they're on their own and without support from DoJ.

    2. I agree. And as you yourself pointed out to me, it is better for General Flynn to be exonerated and/or have the case dismissed than for him to be pardoned.

      This will show the world that he was railroaded.

    3. A little humor for your day and a true story.

      I was at the gas station and going in to pay. A man looking just like Bob Mueller pulled in front of me with his car. He paused, looked around and seemed confused.

      I thought to myself, "Not only is he a lousy prosecutor, but he cant drive, either."

  3. What would prompt a former federal prosecutor and FBI Director (Mueller) to be complicit in the destruction or concealment Brady evidence? This is a huge personal risk and Mueller would be fully aware of the legal consequences that could befall anyone convicted of such a crime. Ditto for Rosenstein and Weissmann. This charge alone could be catastrophic and result in significant prison time.

    Mueller and Wiessmann have a history of being ethically challenged, but this kind of action clearly steps over the line of bad ethics and into overt criminality. And for someone like Rosenstein, you would think that even contemplating such a thing would be abhorrent. Yet cross the line they did.

    A career criminal would not hesitate, because what's one more crime in a lifetime of similar acts. But for Rosenstein, this had to be a major change in ethos. He would not have stepped over to the Dark Side without an extremely compelling motivation. Is he prepared to do serious prison time protecting that secret?

    1. I would answer your question in one word--the word I assume you would use also: No. The longer answer ...

      Weissmann and Mueller, of course, have long histories of engaging in unethical conduct--some of which would likely get other people thrown in jail.

      I think Rosenstein, having jumped on the tiger's back by joining the coup conspiracy against Trump, found himself in way over his head and forced, willy nilly, to go along. His only hope was that the coup would succeed and that Trump would be forced out, one way or another. That possibility changed dramatically when Barr arrived. Considering what appears to be a mountain of evidence of unethical or even illegal conduct by Rosenstein, I believe he opted to cooperate fully with Barr to save himself.

      I think they thought they could get away with it because they have innumerable times in the past, that is the nature of bullies. They don't stop until they get slapped down, hard; otherwise, they just grow bolder as time goes on.
      Rosenstein, Comey and Clapper are time serving toadies who were merely doing what toadies do, as weak a defense as that is. Brennan, Mueller and Wiessmann are genuinely wicked and should be paraded the length of the Mall in orange jumpsuits and shackles at every inauguration from now until they expire as a warning.

      Tom S.

    3. Thanks for that. Yes, over the years judges have done nothing to enforce ethics and prosecutors have simply gotten bolder.

  4. This is a different idea from the Sidney Powell article...

    "John Solomon reported, and Grassley has identified, information in the possession of the DIA that is exculpatory of Flynn. Apparently, the information remains classified — most likely to protect Comey from outrageous abuses of allowing private contractors to mine our intelligence gathering systems as far back as 2012 for nefarious reasons including unmasking and private profit — but that does not absolve Mueller of his obligation to produce it to the defense."

    Back the Bush(43) days when Comey was DAG (2004), he made a bedside visit to the hospitalized Ashcroft to protest/lobby/urge Ashcroft not to authorize an order regarding collection of phone/email metadata (the Stellar Wind program).

    Yet, Comey, as FBI Director, authorized data mining of essentially the same metadata that certainly contradicts the Constitutional privacy concern argument he made regarding Stellar Wind.

    Granted, there may be some differences in the moving parts between the two different circumstances (and possibly legal authorizations have changed), and while riding atop a high horse does appear to be Comey's favorite pose--this isn't a good look.

    1. Two things.

      1) Yes, there's irony in all that. My understanding is that the private contractor thing may have been authorized by Mueller himself, while still Director--but it was certainly continued by Comey.

      2) I'm not sure that Powell is correct about the source of that classified information. My understanding is that that information is simply the documents that show that Flynn, prior to his Moscow trip, briefed DIA and also received a briefing from DIA, and that on his returned he was debriefed by DIA. All of which shows an intent to abide by regulations and laws regarding the conduct of former intel officials in contact with foreign powers. These docs have, I believe, not as yet been released. Powell will undoubtedly demand them and I don't see how the judge can say no.

    2. Thanks for clarifying my observation into the two distinct issues that they appear to be.

      Though, I gotta laugh at Mr. Moral Probity Comey utilizing a surveillance system which he ostensibly object to as DAG.

    3. Yeah, Comey has always been a political animal. Even back then, although registered GOP, he undoubtedly saw where his way upward lay.

  5. If Rosenstein is cooperating with the Durham investigation, then this thing will go way beyond the coup conspiracy. Barr will then be targeting the highest officials in the Obama Administration, up to possibly Obama himself. For that, he will need either a smoking gun or a John Dean type first person witness.

    Both Brennan and Clapper are coming unhinged and are weaselly enough that they likely would flip to save themselves. With Coates departure, the Deep State firewalls are dissolving. Every day is a new revelation. Must be like Chinese water torture for Pelosi, Nadler, and Schiff.

    1. We'll see. If Rosenstein cooperates the pressure on others who worked under Obama would be intense. My understanding is that the Kavalec email--and she was a late cooperator--does name people in the WH.