Wednesday, September 11, 2019

The Flynn Case: The Scope Of Sidney Powell's Discovery Demands

At the end of August, Sidney Powell, Michael Flynn's new lawyer, shook up the Flynn case with a motion in which she sought Judge Emmet Sullivan's assistance in forcing the government to provide potentially exculpatory material (Sidney Powell Shakes Up The Flynn Case). Initially only the brief in support of the motion was available, but today the very lightly redacted motion itself was released. It contains an itemized list of everything Powell is seeking from the government.

The list is extremely broad. It reads like a CTH wishlist for declassification. To understand what's going on here you have to go back to the inception of the Crossfire Hurricane investigation at the end of July, 2016. As the disgraced former FBI Director, James Comey, later testified, Crossfire Hurricane was what's known as an "enterprise" investigation (Mueller's "Enterprise" Witchhunt). What that meant was that the FBI opened an investigation into an "enterprise in fact," a de facto group of individuals within the Trump campaign that was said to be acting as a group and in collusion with the Russian government. One of those individuals was Michael Flynn.

As long as the existence of this investigation was unknown, obviously nobody could request information about it. Even after its existence did become known, the FBI was able to refuse to release most information--except via leaks.

However, that situation changed drastically once Team Mueller decided to prosecute Michael Flynn. As a criminal defendant, Flynn was entitled all information that might be helpful to his defense. In point of fact, Flynn obtained very little of the material he was entitled to, and that's the situation that Powell is seeking to remedy.

Powell has learned that the investigation into Flynn may go quite a ways back, and she wants to know about that. But in addition to that information and matters narrowly focused on the actual charge against Flynn, the nature of Crossfire Hurricane, which included Flynn as a subject, has opened a real can of worms for the government. Since Flynn was a subject of Crossfire Hurricane, a member of the supposed "enterprise," Powell is now asking for everything and anything regarding Flynn and the Crossfire Hurrican investigation. Information that might never have come to light but for the FBI's not too smart decision to include Flynn as a subject of the Crossfire Hurrican enterprise investigation.

For example, Powell naturally wants to see the opening Electronic Communication (EC) for Crossfire Hurricane. That will tell her whether the FBI had any real grounds for considering Flynn a Russian agent--a view the FBI later decided, for reasons that are unclear, to renounce. Kind of. Because the allegation or insinuation did continue to crop up. This is information that could well be relevant at sentencing, or could be evidence of government misconduct, which we've heard so much about.

More examples. Powell wants to know about the use of overseas assets against Flynn. Were any of those contacts exculpatory for Flynn? And how about all those Strzok/Page texts. Was Flynn mentioned in any of them? Did they exhibit the same hostility to Flynn as they did to Trump and everyone even remotely connected to Trump?

In my opinion, Powell has a good case. Maybe not for everything, but for quite a bit. And the FBI largely brought this upon themselves. The prosecutors have until 9/24/19 to respond, and to explain why they shouldn't be held in contempt. And unenviable task.

I'm appending Powell's laundry list of requests, pruned a bit. It's still a pretty full sample and will provide an excellent idea of the scope of Powell's intended discovery. It also will reveal what a can of worms this has all become for the government.


2. The original draft of Mr. Flynn’s 302 and 1A-file

3. All documents, notes, information, FBI 302s, or testimony regarding Nellie Ohr’s research on Mr. Flynn and any information about transmitting it to the DOJ, CIA, or FBI.

4. 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)

5. The Flynn 302 dated January 19, 2017, mentioned in the Mueller Report.

6. All and unredacted Page-Strzok text messages. Mr. Van Grack’s October 4, 2018, letter asserts: "To the extent the text messages appear to be incomplete or contain gaps, we do not possess additional messages that appear to fill such gaps." The government should be compelled to identify to whom “we” refers, where the originals are, and whether any of the gaps have been filled or accounted for.

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.

8. All transcripts, recordings, notes, correspondence, and 302s of any interactions with human sources or “OCONUS lures” tasked against Mr. Flynn since he left DIA in 2014.

9. The unredacted Page-Strzok text messages as well as text messages, emails and other electronic communications to, from, or between Andrew McCabe, James Comey, Rod Rosenstein, Bruce Ohr, Nellie Ohr, John Carlin, Aaron Rouse, Carl Ghattas, Andrew Weissmann, Tashina Gauhar, Michael Steinbach, and Zainab Ahmad, regarding Mr. Flynn or the FISA applications or any surveillance (legal or illegal) that would have reached Mr. Flynn’s communications.

11. All evidence of press contacts between the Special Counsel Office, including AndrewWeissmann, Ms. Ahmad, and Mr. Van Grack from the departure of Peter Strzok from Special Counsel team until December 8, 2017, regarding Mr. Flynn.

12. Unredacted copies of all memos created by or other communications from James Comey that mention or deal with any investigation, surveillance, FISA applications, interviews, or use of a confidential human source or “OCONUS lures” against Mr.Flynn.

14. The James Comey 302 for November 15, 2017, and all Comey 302s that bear on or mention Mr. Flynn.

15. Notes and documents of any kind dealing with any briefings that Mr. Flynn provided to DIA after he left the government.

16. Any information, including recordings or 302s, about Joseph Mifsud’s presence and involvement in engaging or reporting on Mr. Flynn and Mifsud’s presence at the Russia Today dinner in Moscow on December 17, 2015.

17. All notes, memoranda, 302s, and other information about the McCabe-Strzok meeting or meetings with Vice President-Elect or Vice President Pence (these meetings were referenced in the Mueller Report at Vol II, p. 34).

18. All Mary McCord 302s or interviews, including when she knew that Mr. Flynn did not have “a clandestine relationship with Russia.”

19. Any Sally Yates 302s or other notes that concern Mr. Flynn, 

20. An internal DOJ document dated January 30, 2017, in which the FBI exonerated Mr. Flynn of being “an agent of Russia.”

22. Any and all evidence that during a senior-attended FBI meeting or video conference, Andrew McCabe said “First we fuck Flynn, then we fuck Trump,” or words to that effect.

23. The two-page Electronic Communication (EC) that allegedly began the “Russia Collusion” investigation.

26. Testimony, interviews, 302s, notes of interviews of all persons who signed FISA applications regarding Mr. Flynn or anyone that would have reached Mr. Flynn’s communications, without regard to whether those applications were approved or rejected.

27. All FISA applications since 2015 related to the Russia matter, whether approved or rejected, which involve Mr. Flynn or reached his communications with anyone.

28. Information identifying reporters paid by Fusion GPS and/or the Penn Quarter group to push “Russia Collusion,” communications regarding any stories about Mr. Flynn, and any testimony or statements about how the reporters were used by the government regarding Mr. Flynn.

30. Any information regarding the SCO’s and DOJ’s destruction of the cell phones of Peter Strzok and Lisa Page

31. Any information regarding eradication of cell phone data, texts, emails, or other information belonging to Peter Strzok and Lisa Page that created the “gap” identified by the IG.

32. Information about any parts of any polygraph examinations failed by Peter Strzok after Mr. Flynn was first the subject of any FBI investigation—authorized or unauthorized.

34. A full unredacted and copies of the recordings of Mr. Flynn’s calls with Ambassador Kislyak or anyone else that were reviewed or used in any way by the FBI or SCO in its evaluation of charges against Mr. Flynn.

35. All FBI 302s, notes, memoranda of James Clapper regarding Mr. Flynn, and the cell phone and home phone records of Mr. Clapper and David Ignatius between December 5, 2016, and February 24, 2017.

Although not previously requested, the government should be compelled to produce:

36. Unredacted scope memos written for the Special Counsel and any requests by Special Counsel that mention Mr. Flynn or his son.

37. All FBI 302s or any notes of interviews of David Ignatius or any other reporter regarding the publication of information concerning Mr. Flynn and/or the reporters’ contacts with James Clapper, Andrew McCabe, John Brennan, Michael Kortan, or anyone in the FBI, DNI, DOD, DOJ, or CIA regarding Mr. Flynn.

38. FBI 302s and interview notes of Jim Woolsey, including notes by SCO members of conversations with Woolsey about Mr. Flynn, Flynn Intel Group, the Turkey project, and his separate meeting with officials of Turkey after the meeting that was the subject of the FIG FARA filing.

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, 

40. Unredacted notes of the and Strzok from the interview of Mr. Flynn on January 24, 2017.


... Mr. Flynn demands the unredacted 302 reports and any notes or recordings in any form of the following meetings or interviews:

a. Former Deputy Director Andrew McCabe, regarding Mr. Flynn, his calls with Ambassador Kislyak, members of the White House discussing those, and his discussions, planning session, and debriefing session with agents before and after the Flynn interview on January 24, 2017.

b. Recordings, notes, and memoranda by any and all persons who participated in the planning session for the interview of Mr. Flynn, at which it was decided that the agents would not inform him that it was an actual interview or that he was under investigation—so as to keep him “relaxed.” (These persons include David Bowdich, Jen Boone,Peter Strzok, Lisa Page, Trish Andersen, and Andrew McCabe.)

c. Recordings, notes, and memoranda by any and all persons who participated in the debriefing sessions following the interview of Mr. Flynn, including Peter Strzok, Jon Moffa, Andrew McCabe, Bill Priestap, David Bowdich, Trish Andersen, and James Comey.

d. Former Principal Associate Deputy Attorney General Matthew Axelrod regarding Mr. Flynn.

e. Former Acting Assistant Attorney General Mary McCord regarding the FBI’s decision not to give Mr. Flynn a Title 18, Section 1001 warning, and the decision not to re-interview him despite the general practice of the FBI to give subjects that opportunity.

f. Former Acting Attorney General Sally Yates, regarding her opinion that the January 24, 2017, surprise interview of Mr. Flynn was problematic and her
lack of clarity of the FBI’s purpose in investigating Mr. Flynn. 


  1. That's one gigantic can of worms being pried open by Sidney Powell. I wonder, can the government just throw in the towel (dismiss the case) instead of making these disclosures?

    1. I'd be willing to bet that they'd very much like to, but to take that step after a guilty plea invites scrutiny from all parties involved--including the Court and DoJ.

    2. IOW, they've made their bed and may not have much choice now but to sleep in it.

    3. I think Wauck is correct- they would love to dispose of this matter altogether, but to do that now would look incredibly suspicious.

    4. Yes, and invite scrutiny from both the judge as well as DoJ--probably OPR.

    5. So does all of this explain why Flynn repeatedly refused to withdraw his guilty plea when the judge offered that option? Is his plan to use the process to reveal the full extent of intelligence abuse? With the worst case being that he fails and Trump pardons him?

    6. My view is that he was following bad legal advice from his previous legal team. For reasons that Powell is looking into.

  2. Replies
    1. If Powell gets her way they will be. Here's an interesting aspect. If Powell uncovers the egregious misconduct she alleges, the consequences could include civil suits against everyone involved. I can't imagine a more sympathetic plaintiff than a decorated general, nor a less sympathetic defendant than an unethical lawyer.

  3. So we get an "expedited declass" without the internal bureaucratic stonewalling?

    1. Would that it were so! No, Powell gets a clearance, if things go her way, but that means she has to treat the stuff as classified--which it still is. However, we may get some glimpses of what she sees in future pleadings. If this were in preparation for a trial we'd have a better chance of seeing more.

    2. > she has to treat the stuff as classified<

      Like Hillary Clinton? ;)

  4. If Judge Sullivan approves Powell's motion for production, the volume of documentation would be enormous. DOJ would then likely fight the ruling, and failing that strategy, implement a de facto stalling tactic in which actual production would be very slow and piecemeal. Once again, the main goal would be to push everything back until after the 2020 election and hope for a Hail Mary reprieve by a newly elected Democrat president. It's about the only option they have left anymore.

    1. Those tactics wouldn't work with a Federal judge in the context of a criminal proceeding. Judges have access to the highest levels of classification. Sullivan could demand to see the docs and decide for himself whether any claims of classification are justified. himself. He could also instruct the gov. to provide Powell with a clearance--production is to the defense in this case, not necessarily to the public. And he could exercise hands on supervision over the process. They would be in a real pickle. The gov. might hope Sullivan would sanction them by dismissing the case at that point, but Sullivan would also be able to appoint a special master to look into the abuse of the judicial process in bringing an indictment and then refusing to proceed or withdraw. No good options at that point.

  5. DOJ/FBI did not charge Flynn with a "crime" that was important. Rather, DOJ/FBI charged him with a process crime -- lying to a couple of FBI officials about a phone call while Flynn was the Director of National Intelligence.

    Because of this absurd charge about a process crime, DOJ/FBI is vulnerable to the imminent exposure of much of its own dirty laundry.

    DOJ/FBI has been poorly served by the cabal of Trump-hating zealots who headed DOJ/FBI during recent years.

    Thank God that William Barr has become the US Attorney General.

    1. Good point, Mike. There's another interesting point re Agent Joe Pientka. Even though he was being intensively interviewed by OIG--and that only happens when you're involved in something fishy--Mueller kept him on the Team Mueller books and Rosenstein refused (on that basis) to make him available for interview by the House. He should have been removed from Team Mueller, like Strzok and Page. Can you say "cover up"?

  6. I would have thought Roger Stone's attorneys could take a page out of Sidney Powell's playbook and also seek 'exculpating' evidence from Stone's prosecutors...which in all likelihood would be no less embarrassing to the govt than the evidence Powell is seeking.

    Is it really too late for PapaD to allege prosecutorial misconduct (in all likelihood PapaD's prosecutors failed to disclose the full extent of exculpatory evidence to him) and seek to overturn his 'conviction'? Perhaps not.

    It seems like the leverage which the govt had when pressuring Flynn, PapaD, etc to plead has flipped now that the Mueller Report has exposed the hoax, giving some leverage back to those accused. I wonder if Manafort has an exculpatory evidence case...

    Can of worms, indeed!

    1. I just put up a new post that will explain part of the difference between the Stone and Flynn cases. The Flynn case has much deeper roots and Powell will be able to launch a formidable argument for the relevance of everything she's demanding. However, Stone's lawyers have made discovery requests re the Russian "hacking" hoax which also strikes at the heart of the bogus Intel Assessment.

      There have been heavy hints that PapaD will ultimately be exonerated, too.

      Yes, legal judo!