Saturday, August 31, 2019

UPDATED: Sidney Powell Shakes Up The Flynn Case

Team Mueller thought they were pulling a smart maneuver when they farmed out the Concord Management and Flynn cases to friendly local US Attorney offices--in New York and DC. This ploy was clearly intended to thwart the supervision of those cases that would result from the anticipated appointment of Bill Barr as Attorney General. The Attorney General exercises direct supervision over a Special Counsel--as we saw in Barr's handling of the Mueller Dossier--but there is little that the AG can do when local US Attorneys (presidential appointees, as I keep reminding one and all) prosecute an indictment that has been returned by a grand jury in their district. Little did Team Mueller anticipate what would happen!

In the Concord Management case, Team Mueller obviously never expected that the Russian defendants would actually contest the case in court. Instead, Concord's US lawyers have done yeoman work exposing the absurdity of the claim that "the Russians" had any measurable impact on the 2016 election through internet activities--or that their activities were even intended to have such an impact.

In the Flynn case it appeared for a long time that Team Mueller would have its way against Flynn. Flynn was framed, indicted, and pressured into a guilty plea that made little sense. The only thing left was sentencing, and in the initial stages of that final step Flynn steadfastly maintained his guilt, even under what appeared to be clearly skeptical questioning by Judge Emmett Sullivan.

However, Flynn may have been saved by unforeseen circumstances. Sentencing was repeatedly delayed while Flynn continued his "cooperation" against his former Turkish associates. And then, for reasons we are not privy to, Flynn dumped his DC establishment legal team and hired Sidney Powell to lead a team that includes prominent legal ethics experts. Powell herself, an experienced former prosecutor and current criminal defense lawyer with extensive appellate experience, has literally written the book on modern DoJ prosecutorial abuses: Licensed to Lie. That book included extensive documentation relevant to key players in the Team Mueller operation as well as--very pertinently--on the Ted Stevens case.

Powell's initial moves made it clear that, as expected, she was examining the possibility of seeking a dismissal of the charges against Flynn based on the same types of prosecutorial misconduct she documents in her book. In particular, it was clear that Powell believed that Team Mueller had withheld exculpatory information that should have been provided to the defense under the Brady Rule and in accordance with Judge Sullivan's standard blanket Brady order.

Powell's latest filing has made all of this explicit. Powell (actually, Flynn through Powell as his attorney) has filed a Motion to Compel Production of Brady Material and for an Order to Show Cause. In other words, it's a motion to compel the prosecutors to produce the "Brady Material" that Powell says they should have produced long ago--before Flynn's guilty plea, which Powell clearly believes was not voluntary. The motion itself is under seal for the time being, so we can't be 100% sure of the exact materials that Powell is seeking access to, but Powell has helpfully filed--and publicly released--a Brief In Support of the motion. The brief is clearly written and gives a clear picture of where Powell is going with the case. For anyone who doesn't get it, Powell made it crystal clear in an interview with fellow defense attorney Gregg Jarrett that her goal is not at this time to withdraw the guilty plea but rather to seek an outright dismissal of the case based on prosecutorial misconduct:

Gregg Jarrett: Are you considering withdrawing the guilty plea? 
Sidney Powell: That is not what I want to see happen here. I am expecting frankly that we find evidence that warrants dismissal of the case for egregious government misconduct. But like I said we want to know the truth. That’s what I want to know first and I can’t even evaluate the validity of the plea until I have all the evidence.
... The man, I believe, from everything I’ve seen now should be completely exonerated.

Note Powell's insistence on knowing the full truth, so that Flynn can be "completely exonerated." For a man in Flynn's position, this is what he should be seeking--not just a dismissal on what, to the public, might seem to be technical grounds.

But there's more going on here.

The prosecutors are continuing to resist Powell's demands for Brady material--and her insistence that the defense not be required to accept their judgment as to what is or is not relevant. The first thing that comes to mind in that regard, of course, has to do with all records regarding the production of the FD-302 of Flynn's interview, which formed the basis for the charges against him. However, Powell has much more in mind. The fact that the prosecutors are also resisting Powell's requests for a clearance to view classified materials is a clue as to where she's heading.

I'm going to quote fairly extensively from the brief regarding the materials that we specifically know that Powell is after. Before doing so, however, I want to present two aspects that play into this. The first is simply that Flynn's original legal team never sought to review any classified materials. Powell has hinted that she regards that failure as possible failure to provide effective legal representation. Or worse. The second aspect is that the FBI, by the very nature of the Crossfire Hurricane case as an "enterprise" investigation, has opened the door to extremely broad discovery demands. As a result of the FBI (falsely) claiming that Flynn was part of an enterprise that included Manafort, Carter Page, and Papadopoulos, all materials concerning them are potentially relevant to Flynn's defense. So, too, are materials relating to the origination of the Russia Hoax--think, "Steele dossier"--as well as possible legal and/or illegal electronic surveillance of Flynn. As Powell argues, she has to see these materials herself in order to determine whether they are relevant to any defense that she will present.

OK, now I'll quote from the brief so you can see just how broad that discovery is, and bear in mind that Powell is very clear that she's seeking unredacted versions of this material. Some of these materials have been made public in redacted form, and some have never been provided to investigators. Powell is saying that she wants it all and she wants it unredacted. Otherwise, Flynn has been denied the ability to defend himself. So ...

First Powell shows how the Flynn case intersects seamlessly with the entire Russia Hoax--at least with regard to the players involved--and then she draws out from that the materials that should be relevant. She also points out the bad faith that the prosecutors have shown in the past, which is now documented for the Court:

The government has not complied with its Brady obligations. In their belated letters and productions, Mr. Van Grack and his team have admitted they are in possession of evidence favorable to the defense, but they have steadfastly refused to produce the actual evidence. This includes FBI 302s specifically requested, information identified in the Mueller Report, and information specifically exonerating Mr. Flynn.
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 [sic] to the defense until March 13, 2018, when he gave them a link to then-publicly available messages.

Then Powell graphically describes how wide ranging the implications of this abuse are:

The prosecutors here—at the time including Mr. Van Grack, Ms. Zainab Ahmad, and members of the Special Counsel team under the direction and supervision of Mr. Andrew Weissmann—engaged in conduct even more pernicious than failing to comply with their legal and ethical obligations under Brady and the D.C. Rules of Professional Conduct. 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. 
It is equally concerning that Mr. Weissmann and Ms. Ahmad while at DOJ in 2016-17 were working with Bruce Ohr (then the fourth highest ranking member of DOJ) to feed information from his wife Nellie at FusionGPS and British citizen Christopher Steele to the FBI through his secret back-channel. This was happening after the FBI terminated Mr. Steele as a paid informant because he was keeping the press informed of his “findings.” FusionGPS, Steele, and Ms. Ohr were all working for the Clinton campaign. In addition, Ms. Ohr worked for the CIA. The entire operation is further compromised by the fact that the second agent who interviewed Mr. Flynn along with former agent Strzok, was Bruce Ohr’s contact with the FBI and conducted numerous debriefings of Mr. Ohr—passing along to the FBI the corrupted and false information from the Ohrs, Steele, and FusionGps That agent may also have joined Special Counsel’s team. 
Weissmann and Ahmad were not in the DOJ chain of command to be informed by Mr. Ohr at all. They had no legitimate reason to be privy to his operation with FusionGPS and Christopher Steele. Remarkably, despite this involvement, Mr. Weissmann and Ms. Ahmad then went directly to the Special Counsel team, along with Strzok and possibly the second agent, thereby calling into question the entire investigation with their illicit involvement with Ohr and Steele. Closing the circle, Ahmad was co-counsel with Van Grack in the prosecution of Mr. Flynn. It is imperative the defense obtain the Bruce Ohr 302s and notes—unredacted—and all evidence of this circuitous and illicit operation. 
When the prosecutors did produce any information that was exculpatory to the defense, they denied it was such—making it clear to any reasonable attorney that they are unwilling or unable to recognize and identify Brady information at all. This leaves the public, criminal defendants, and courts with no trust whatsoever in the willingness or ability of the government even to identify Brady material, much less produce it. 
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. 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). 
Any reasonable attorney familiar with the allegations against Mr. Flynn would recognize that this evidence contradicts and undermines the prosecutors’ “theories” of any wrongdoing. The production of August 16, 2019, also proves that the government has long had this information in its possession, all while the government has made an exhaustive effort to prosecute Mr. Flynn for three years or more. Indeed, the prosecutors spent countless hours interrogating Mr. Flynn on multiple subjects and cases, yet they chose not to disclose this until now. This conduct demonstrates contempt for the most solemn obligations of these prosecutors and for this Court’s longstanding order. Nothing will force the government to take its obligations seriously until individual prosecutors are held to account with findings of contempt and dismissals of prosecutions. 

In Part V of the brief Powell explicitly states that the Court should hold the prosecutors in contempt:

While the defense is reviewing the massive file counsel does have, it is what we do not have that is crucial. A finding of contempt by this Court will trigger the appointment of new prosecutors—unrelated to the Special Counsel investigation or the U.S. Attorney’s Office for the District of Columbia, which is now equally implicated in the suppression of evidence favorable to the defense. As in Stevens, counsel expects that in a matter of weeks, new and untainted counsel for the government could find and produce the evidence the current team has hidden.

Powell is carpet-bombing the government at this point. Note that she states that the entire DC US Attorney's office is implicated in the abuses she cites. She's right. USA Jesse Liu was also implicated in the coverup of the Awan case and the James Wolfe case (cf. CTH re Liu). Further, Powell--as she does regularly throughout the brief--explicitly cites the Stevens case (link above). The Stevens case was a major focus in Powell's book and those familiar with it will know that Judge Sullivan was the hero--probably the only hero--of the book. Sullivan held the Stevens prosecutors in contempt for failing to provide Brady material to the defense. Sullivan also stated that he was unwilling to trust an internal probe by the Office of Professional Responsibility (OPR) due to the "shocking and disturbing" nature of the misconduct by the government. Powell is prodding Sullivan to live up to his past.

And Powell isn't done. She goes on to detail significant Fourth Amendment issues and to demand access to unredacted documents that we've all heard of but haven't seen:

In addition, there are egregious Fourth Amendment violations at issue in this case. Either Mr. Flynn was (i) the subject of a pretextual counter-intelligence investigation apparently resulting from an FBI/CIA operation routed and funded through the Office of Net Assessment in the Department of Defense, using Stefan Halper to smear him as an “agent of Russia;” (ii) part of the documented abuses of the NSA database; (iii) the subject of a criminal leak of classified information regarding his conversations with Ambassador Kislyak; (iv) illegally unmasked; or (v) some combination of the above. 
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. 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.

All of the above provide ample grounds for dismissing the case--but Powell wants the documents because she wants not merely a dismissal but exoneration for Flynn.

The bottom line is that Powell is going to force Judge Sullivan to rule on these matters. Whatever his ruling, it will be appeallable. The judge knows that, and he knows now that Powell isn't going away until this case is fought out all the way to the Supreme Court, if necessary.

Will Powell persuade Judge Sullivan to compel the production of documents that the Obama holdovers have been desperately seeking to conceal for years? Stay tuned.

UPDATE: Above I refer to the DC US Attorney Jesse Liu's role in covering up criminality in two crucial National Security cases. For a rundown on Liu--too long to synopsize--check this out: Corrupt US Attorney Jesse Liu Was Involved in Mueller Cases Where Evidence Withheld from Defendants -Now She’s Involved in Decision on Whether to Indict Crooked Andrew McCabe!


  1. Excellent post, as usual. So glad Powell included Judge Colyer's finding of 702 abuses; I think seeing the unredacted version would be a top priority. Who, in your opinion, has seen the identities of the "contractors" and of the facilitators at FBI/CIA/White House?

    1. Tx. Yes, I think that's great. And of course, that's her duty as defense attorney--leave no stone unturned. Clearly all the top NatSec people at any agency that has anything to do with FISA should have seen that. John Roberts should have seen that, too. I mention Roberts in particular, because diGenova has--rightly IMO--been hammering at Roberts and asking when is he going to say something and what will he propose should be done. In fairness, I suppose, Roberts could be waiting for the OIG report.

  2. I should probably say that I had the car buying experience from hell yesterday and feel totally behind on this blog.

    1. Did you use the internet to research and negotiate the purchase of your vehicle?

      We've bought two cars this way. The first was in 2008 and the second in 2013. We negotiated via the web and were presented offers. I told the dealer we ultimately selected that their internet offer better be the exact same price (no dealer prep, admin fees, etc.) as the sales agreement when we came to sign on the dotted line or we were walking out. And it was!

      I heartily recommend this as the way to go.

    2. I did do a lot of research, of course, but I didn't do the negotiation that way. I probably should have, although the offers did track KBB pretty closely. The problem I encountered was when I came in to one dealer and was forced to sit waiting for an offer for an unconscionable time. If you can believe it I ended up walking out with the sales people trailing behind. It was a very upscale place and in retrospect we think we lucked out, for several reasons.

    3. OK. That makes more sense if it is an upscale place. I don't think the typical Chevrolet or Ford car dealership can get away with that kind of stuff anymore.

      The internet has been a boon for consumer power in this respect.

      Maybe Brennan or Clapper owns the dealership? LOL

    4. I was very surprised--I'd never had that sort of experience before. Everything moved along until it came time for them to make an offer and then it was just delay. I suspect it was a tactic, but it just p.ed me off.

  3. Flynn should have hired Powell from the start- the attorneys he did have appear to have been working for someone else all along.

  4. Regarding Durham's angle - is this relevant?
    18 U.S. Code § 2384. Seditious conspiracy.
    "If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both."

    1. The short answer is, No. The longer answer can be found in two posts:

  5. You have commented several times about how AUSAs are presidential appointments and operate with substantial independence and autonomy. So what is the check and balance in the event that an AUSA goes rouge and breaks the law? Who investigates? Who takes action? What is the remedy?

    1. No, not AUSA. An Ass't US Attorney isn't a political appointee. They're simply prosecutors. US Attorneys (USA) are presidential appointees.

      Checks and balances has to do with the three Branches of government: Executive, Judicial, Legislative. USAs are part of the Executive Branch, subject to Congressional oversight.

      They're also subject to oversight by DoJ. If there are allegations of wrongdoing, whether administrative or criminal, they are subject to removal by the president--just like Comey was. They can also be investigated by OIG or OPR, depending on the nature of the allegation, just as Comey was. OIG or OPR can recommend or refer for prosecution--again, just as in the case of Comey, who was also a presidential appointee.

    2. I need to add that USAs receive oversight and supervision from the AG. But as long as they're engaged in carrying out their duties in accordance with departmental policies and guidelines the AG can't intervene. All that is governed by internal regulations and guidelines for DoJ, and in particular by the EOUSA.

  6. Rather than waiting to see what happens with the Flynn persecution, I'd like to predict that Judge Sullivan will say that since Flynn has already plead guilty, demands for government production are moot. (Hint from Sullivan: withdraw your plea, then discovery of government documents will be ordered, and either charges will be dropped, or the scam will be exposed)

    Is it obvious I'm not a lawyer? Or is something like this conceivable?

    1. No, that's not legally workable--if demands for production were considered moot (on what conceivable grounds?) that would coudl only mean no discovery, no charges dropped, no exposure. The process has to be followed step by step. And there's nothing moot about Flynn's demands at this stage. Any adverse ruling will certainly be appealed.

      It seems to me that the prosecution would like to find a way out but is in rather a box. To offer to drop charges at this stage (after a guilty plea) would look like an admission of misconduct, so they're being forced to resist what look like extremely reasonable demands from the defense. It seems to me they may be totally boxed in.

      At this rate Powell will look far more effective than Barr/Durham/Horowitz.

  7. I just don't understand why Flynn hired that initial legal team. Was he forced to? Seems to me he was around long enough and had enough inside information that he ought to have known what side that team was on. What am I missing?

    1. I can only guess that he got bad advice to go with a big name firm that was also an insider firm. Bad advice when you're facing criminal charges.