Powell, though, must still establish that the evidence sought is Brady material. Judge Sullivan seemed skeptical of the relevance of some of the evidence Powell mentioned and how it bore on Flynn’s guilt for the offense of conviction, namely lying to FBI agents. But Powell parried well, noting, for instance, that evidence concerning the texts exchanged between former FBI Agent Peter Strzok and DOJ lawyer Lisa Page were impeachment evidence.
"Impeachment evidence" is evidence that strikes at (impeaches) the credibility or character of witnesses. This evidence can be considered as a subset of Brady material, and is known as "Giglio information", after the case of Giglio v. United States. Here's a useful explanation of Brady and Giglio:
In U.S. law, Giglio information or material refers to material tending to impeach the character or testimony of the prosecution witness in a criminal trial.
The Supreme Court's 1963 decision in Brady v. Maryland, 373 U.S. 83 (U.S. 1963) held that the prosecution violates due process when it "withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty.
In Giglio v. United States, 405 U.S. 150, 153 (U.S. 1972), the Supreme Court extended the prosecution's obligations under Brady to disclosure of impeachment evidence. Supreme Court clarified that all impeachment evidence, even if not a prior statement by a witness falls within the Brady rule. Giglio mandated that the prosecution should disclose any and all information that may be used to impeach the credibility of prosecution witnesses including law enforcement officers. Impeachment information under Giglio includes information such as prior criminal records or other acts of misconduct of prosecution witness, promises of leniency or immunity offered to prosecution witnesses.
When you consider that phrase "other acts of misconduct" you'll understand the relevance of Powell's demands. There's no way that Sullivan failed to understand the point.
In another exchange, Powell stressed that recently disclosed evidence showed the government had concluded that Flynn was not a Russian or Turkish agent, and, in fact that Flynn had briefed the government before meeting with Turkish officials. That evidence was relevant to sentencing, Powell argued, because it negates prosecutors’ claim that they had foregone a FARA violation charge against Flynn. “That’s a good point,” Judge Sullivan concurred.
Powell will have a chance in her reply brief to detail how each piece of evidence sought is either exculpatory or serves as impeachment evidence.
All of this is relevant to what Cleveland describes as "Powell’s bigger plan ... to expose the breadth and depth of SpyGate and how flaying Michael Flynn lay at the heart of the soft coup attempt." That this is, in fact, Powell's bigger plan is strongly hinted at in Powell's statement to Judge Sullivan:
There never would have been a plea to begin with if the government had disclosed Brady information about what it knew before the plea agreement.
I believe that Powell will lay great emphasis on the the impeachment or Giglio subset of the Brady material and will argue that the the "egregious misconduct" that the government engaged in--but failed to disclose to the defense--was a years long effort to frame and smear Flynn. Powell didn't pick that word "misconduct" at random. The misuse or fraudulent use of government resources in a political hit operation against Flynn is, indeed, "egregious misconduct." If that information had been disclosed to Flynn then certainly, as Powell stated, "There never would have been a plea to begin with." Powell wants the documentation behind this campaign by the Intel Community against Flynn, to argue that it was unwarranted and thus constituted "misconduct"--egregious misconduct. Thus, Powell specifies:
7. All documents, reports, correspondence, and memoranda, including any National Security letter or FISA application, concerning any earlier investigation of Mr. Flynn, and the basis for it.
Once again we see that bringing these trumped up charges against Flynn was ill considered, because in the hands of a determined defense lawyer it provides the means to expose the sordid plot against Flynn--and Trump.
Cleveland provides an excellent example of how this will play out:
Also intriguing is Powell’s request for: “All payments, notes, memos, correspondence, and instructions by and between the FBI, CIA, or DOD with Stefan Halper—going back as far as 2014—regarding Michael Flynn, Svetlana Lokhova, Mr. Richard Dearlove (of MI6), and Professor Christopher Andrew (connected with MI5) and Halper’s compensation through the DOD Office of Net Assessment as evidenced by the whistleblower complaint of Adam Lovinger, addressed in our brief.”
What is fascinating about this request is that the uninformed will see the 2014 date as evidence that Powell is on a fishing expedition, while in reality, her bid for this information shows that Powell has in three short months pieced together more tiles in the mosaic of the Russia collusion fraud than Robert Mueller did in two years.
That is because the spying on Trump likely began with spying on Flynn, and involved not just the FBI, CIA, and Department of Defense, but their British counterparts, and dated back to Flynn’s time as President Obama’s Defense Intelligence Agency director. Then after Flynn joined Trump’s team, Halper and the British crew peddled a fake story that Flynn was having an intrigue with a Russian agent named Svetlana Lokhova.
And there's more detail where that came from.
So, now we also see why Mifsud is such a key witness, why he was kept hidden for so long, and why Team Mueller tried to claim--falsely as we now know so well--that "the Professor" was a Russian agent. What he really was was the Western intel asset at the heart of the plotting that began with the campaign to--in Andrew McCabe's words--"f*ck Flynn."
This was our Deep State, a transnational entity. Trump has brought it to the surface.
This analysis points to the essential conundrum for Barr/Durham. As more information comes to light via efforts by Powell, Tom Fitton, and others, it strongly makes the case that corruption and criminality within the Obama Administration was comprehensive, longstanding, and very serious (you can't get more serious than a coup attempt). As such, the public outrage will continue to increase and there will a righteous demand for real prosecutions and prison time if convictions are obtained. If Barr was planning on soft-pedaling a slap-on-the-wrist outcome, then he would have to contend with the wrath and consequences of the public reaction. No trivial thing.ReplyDelete
I don't believe that he was planning on soft-pedaling anything. OTOH, this Flynn case--IMO, not so much Fitton's work, much as I appreciate it--raises the stakes significantly in the public eye.Delete
IIRC, the law firm Sidney Powell replaced was Covington & Burling, the law where former AG Eric Holder hangs his hat. Given what is emerging with Powell's representation, it doesn't seem impertinent to ask if there was professional misconduct, malfeasance, or malpractice on behalf of the C&B attorneys representing Flynn. They appear to be uncurious, quick to a plea, and falling short of a vigorous representation of their client.ReplyDelete
Perhaps it wasn't just government bureaucrats who thought they could escape scrutiny in this hoax and coup...
Right. In fact Powell has missed nothing, and she's looking into that situation. I cut out most of #39, but here's how it reads in full:Delete
39. All communications between Mr. David Laufman, Ms. Heather Hunt and any other member of the National Security Division regarding the FARA registration for Mr. Flynn and FIG and notes, reports or recordings of their interaction with Covington & Burling with regards to the filing and its contents. See Def.’s Resp. to the Ct.’s Order
of July 9 & Gov.’s Filing of July 10, Ex. D, July 11, 2019, No. 17-232-EGS.
This is as heartening as the word that McCabe is going to face indictment. Perhaps, McCabe could be induced to keep what he has and turn; he seems to be for sale, based on what we know.ReplyDelete
Excellent work and Godspeed Mark!
Do you remember a movie (Liar Liar) where Jim Carrey is a sleazy lawyer and his son wishes for him to become a good father and attorney? If you don't, I'll explain. Carrey's character can no longer lie. He's tries to shut his mouth but the truth outs itself in him. It's classic Carrey comedy before he became a deranged liberal nut.ReplyDelete
My point is that Sydney Powell is outing the truth and as much as Van Grack wants to hide it, he's powerless.
Thank God for Powell, Donald Trump and the others.