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.