Monday, September 2, 2019

Wow! Sidney Powell Has The Deep State Going Ballistic

Yesterday Will Chamberlain did a brilliant takedown of the Deep State reaction to Sidney Powell's bombshell motion and supporting brief in the Michael Flynn case. As you'll recall from Sidney Powell Shakes Up The Flynn Case, Powell asked Judge Emmet Sullivan to find the Flynn prosecutors in contempt of court for Brady violation--which would result in them being thrown off the case and would allow AG Barr to appoint new prosecutors over the head of DC Swamp USA Jesse Liu who supervises these prosecutors. In the same motion Powell continues to demand production of the materials that are being withheld and demands that she be given a clearance to read the classified material that Flynn's previous lawyers never even asked for. As Chamberlain wickedly notes, the prosecutors have filed their response--in the form of a NYT article!

What follows is an edited version of Chamberlain's brilliant thread, with extra comments and links. In response to a comment by dfp21 this morning, I noted that Powell appears to have the prosecutors in a box. I think you'll see that pretty clearly from Chamberlain's analysis.

Will Chamberlain

You might have missed the news - but Sidney Powell filed a BOMBSHELL motion in General Flynn's case on Friday night.

Powell is asking Judge Emmet Sullivan to find the prosecutors in contempt of court and get them thrown off the case for Brady violations.

First, some basic background: "Brady violations" are when prosecutors fail to disclose evidence ["Brady material"] that could be favorable to the defense. 

[Note that "could be." That doesn't mean "for sure could be," it means "possibly could be" or "could conceivably be" or "could be under any circumstances." As Powell argues in her brief--citing legal authority--prosecutors aren't the ones who get to decide what could be favorable to the defense--the defense attorneys do. That's why, in prosecutions I've been associated with, the AUSAs simply do a document dump--ALL 302s are simply turned over to the defense, unredacted.]

This is indispensable to due process, for pretty obvious reasons: if prosecutors can hide evidence they can get unjust convictions/pleas.
This is particularly relevant in any case involving Judge Sullivan, who famously threw out former Senator Ted Stevens' conviction - due to Brady violations by the prosecutors in that case.

Stevens' case was covered heavily in Sidney Powell's great book, LICENSED TO LIE.
Powell makes a SHOCKING accusation: that prosecutors Brandon Van Grack and Zainab Ahmad, under the direction of Andrew Weissmann,

"affirmatively suppressed evidence that destroyed the credibility of their primary witness [and] impugned their entire case against General Flynn."
It looks like Sidney Powell's allegations are based on a "voluntary" production of documents by the prosecutors on August 16th.

Van Grack denied that there was any Brady material in the production.

Powell disagreed - and argued that the prosecutors should be HELD IN CONTEMPT!
[It's a no-brainer that Van Grack--forced to produce material that he had previously refused to produce--would claim that the material somehow wasn't Brady material. To admit that it was Brady material would almost automatically get him held in contempt. Note that Chamberlain puts that "voluntary" in quotes, because he knows the reality is that the production was compelled by Powell's superb representation of her client, General Flynn.]

[Note: I've edited and expanded Chamberlain's next paragraph.]

Note - it's pretty much impossible for outside observers to determine who's right in this case - yet, because Powell was required to file the actual motion under seal. The relevant evidence--which is the basis for Powell's claim of Brady violations--was produced under a protective order and is described in detail in the actual motion, which lays out the specific Brady violations. At this point we can only judge based on the brief that supports the motion.
Sidney Powell notes what the consequences of a contempt finding by Judge Sullivan would be. 

The existing prosecutors would be thrown off the case, and DOJ would have to appoint new prosecutors.

Just as happened in the Ted Stevens case.

Under Judge Sullivan.
[Important point--DOJ would have to appoint new prosecutors, NOT Jesse Liu, the USA in DC. That's because Jesse Liu was supervising the prosecutors and, as Powell argues, the whole DC USAO is complicit in the Brady violations as a result.]

Van Grack, Ahmad, and Andrew Weissmann probably aren't very happy right now.

[I imagine not. They probably saw this coming, but had no way to prevent it.]

This motion threatens not only their prosecution of Flynn, but their careers and their professional reputations.

They haven't filed their response yet.

But the NYT has.


Michael Flynn’s Lawyers Escalate Attacks on Prosecutors
Lawyers for Mr. Flynn, the former national security adviser, said they believed prosecutors had material that could exonerate him. The government dismissed those claims.

I cannot stress how appalling this NYT article - by Adam Goldman - is. 

It is purportedly news, not opinion.

But it reads like Pravda. 

It's full of editorializing, and at times straight up falsehoods.

He - and the NYT - should be ashamed.
Let's start with the first paragraph.

Goldman accuses Sidney Powell of "recycling unfounded conspiratorial accusations" against the prosecutors.

Is this the opinion section?

"Recycling" suggests this motion was filed previously. It wasn't.
"Unfounded" suggests that there is no evidence underlying the claim that the prosecutors suppressed Brady evidence.

How could Goldman know that?

As we discussed above, the relevant evidence was produced on August 16th - under a protective order!

[I have to believe that Powell will use this obvious prosecutorial leak to the NYT when she argues before Judge Sullivan.]


That's just pure pejorative. 

It could have been applied to the defense lawyers in the Stevens case, who accused federal prosecutors of withholding Brady material.

Which they were.

Contemptible, Goldman!
The prosecutors' brief - sorry, NYT article by Adam Goldman - continues with more ridiculous framing.

Goldman argues that Sidney Powell's filing could "anger" Judge Sullivan.

Why wouldn't Judge Sullivan be angrier about the alleged Brady violations?
Next, Goldman suggests that the filing will "amplify[] right-wing theories about a so-called deep state of government bureaucrats working to undermine President Trump."

Nowhere in her brief does Sidney Powell refer to a deep state.

But Goldman doesn't care.

[Apparently the prosecutors hope Sullivan reads and takes his cues from the NYT. Maybe he does, but at some point in the appellate process I think Powell and Flynn will find judges who think for themselves.]
Read this bit. Goldman argues that Powell's motion has "heightened speculation" that General Flynn is "making a bid for a pardon."

Speculation by whom? When? Why?

Not mentioned. Goldman provides no evidence for this claim.

That makes his claim - shall we say - unfounded?

[In fact, Powell has publicly stated that she's seeking a full exoneration. Wouldn't a real reporter have noted that fact?]
Here's perhaps the most RIDICULOUS part of Goldman's piece.

He notes that Powell is seeking a security clearance to review General Flynn's classified conversations with Russian Ambassador Sergey Kislyak.

Then he discusses the contents of those transcripts - which he apparently knows!
Hold the phone!

How does Goldman know the contents of classified NSA transcripts relevant to Flynn's culpability?

And how can he argue with a straight face that Powell has filed an "unfounded" motion - to see those very transcripts?

She's Flynn's LAWYER!

This is a mischaracterization from Goldman [that Judge Sullivan "rebuked" Flynn for suggesting that the FBI had tricked him into "lying"].

I attended this hearing back in December 2018.

Judge Sullivan criticized Flynn's lawyers, counsel from Covington & Burling.

Not Flynn himself.

And that was because - in the same papers - Flynn was admitting guilt.
This is simply false from Goldman:

Flynn did not change his story re: Turkey.

He conceded to making materially false statements in his FARA filing - but NOT to making them KNOWINGLY, as Sidney Powell explained in an earlier filing.

A simple review of Flynn's statement of offense (from his plea) clearly demonstrates that Goldman's accusation is flat-out false.

The statement of offense includes discussion of "knowing" lies with regard to his FBI interview.

NOT his FARA filing on Turkey.
Enough. Goldman and the NYT owe Powell and Flynn apologies, though they aren't likely forthcoming.

Judge Sullivan has scheduled a hearing September 10th, here in DC.

I'll be there.

Should be explosive.

Because Judge Sullivan doesn't like crooked prosecutors.


  1. It's a difficult adjustment for most people to make--that what was formerly thought of as news media (NYT) are actually (and always have been) partisan activists pursuing an agenda. Having freely drunk the Kool-Aid (repositories of unbiased facts and information) since school days, it's near impossible to quit the habit of drinking freely that which spews forth from such precincts.

    The above critique of the Goldman article is simply a concise synopsis of the daily offering of the NYT. I stopped reading the NYT in 2000, tired of being told what to think, while wading through the muck and slime to discover the underlying story.

    The only difference between the present day and 2000 (when I quit reading), the NYT no longer hides its agenda with a pretext of subtlety. If it wasn't already blatantly obvious, publisher AG Sulzberger's complaint about digging dirt on journalists (goose/gander and all that), and editor Baquet's switch from smearing Trump with Russia, to smearing with racism should disabuse anyone of the NYT's honesty and integrity.

  2. It seems from your summary of the motion yesterday that Powell should win. She knows how to win this kind of motion: She’s able to list enough specific instances of the prosecution not providing complete records or at best only very heavily redacted records that any judge would be persuaded that the Government has not been totally open, and that Powell should get to see what she’s asking for. This is not a speculative motion at all. I think most judges, depending on how short their fuses are, would give the prosecutors a very firm deadline to turn over absolutely everything, with a warning that they will be held in contempt if they try playing any more games.

    1. Yes. However, in this situation--where the defendant has already suffered greatly as a result of prosecutorial misconduct--the case for a contempt finding NOW becomes rather compelling. Powell will IMO have a very strong argument to present on that score. The harm to Flynn is obvious --prestigious job lost, honorable career smeared, the coerced guilty plea, fear for his son, etc. But it's also quantifiable: crushing legal fees!

  3. To date, Barr has not indicted anyone in the DC establishment involved in the criminality of SpyGate/RussiaGate. At best, several people have been fired or forced out of their positions in the Executive Branch. Better than nothing I guess. It seems to me that if Powell gets her contempt ruling, that would give Barr plenty of cover to seek Jessie Liu's dismissal. If you're not going to indict these in-house criminals, at least stop the bleeding.

    1. The Liu situation is a bit of a mystery to me. She obviously had GOP backers going years back, and was made USA in DC by Trump in 6/17--long before Barr came along. OTOH, Barr is said to have recommended her for promotion to Assoc. AG--which was shot down by conservative senators.

      Read more here: