A top takeaway--or clarification--is that Powell clearly states that there can be no appeal in the Flynn case until Flynn is sentenced--something to keep in mind going forward.
Additionally, Powell explains, regarding the "original" FBI 302 on their interview of Flynn, that she now has "a witness who has seen the original 302" and can testify to the content of the original. That witness will say that the original 302 says that Flynn was "honest" in the interview. The way Powell phrases this--"a witness who has seen the original 302"--would lead one to believe that the witness is either a lawyer or an agent, although there are other possibilities. A clerical worker, perhaps. In any event, this is the third time I've heard Powell say this and it seems the clearest statement.
However, at the 1:03 mark Powell makes an important additional statement regarding what we can expect next week:
You have to wait until he's sentenced to prison before we can appeal anything--if they're ridiculous enough to go that far after our new motions that we're filing next week, or our supplemental brief on the withdrawal, because we've got reasons--STUNNING reasons--to withdraw this guilty plea.
Powell then goes on, in response to prompting from Levin, to state that the case is being handled out of the US Attorney's office for the District of Columbia, and to characterize the USA, Jessie Liu, as "the one who let off the Awan brothers and Mr. [James] Wolfe with a slap on the wrist."
MW wrote:
ReplyDeleteThe way Powell phrases this--"a witness who has seen the original 302"--would lead one to believe that the witness is either a lawyer or an agent, although there are other possibilities. A clerical worker, perhaps. In any event, this is the third time I've heard Powell say this and it seems the clearest statement.
Another possibility is one of the former/current House GOP HPSCI members, like Gowdy or Nunes, or their staffers, who managed to get access to the original. IIRC Nunes has said he's seen it.
Are you sure about that? Or are you thinking of Russia Hoax docs, like the opening EC?
DeleteI thought I heard Nunes say this Thursday or Friday in an interview. Don't know here; don't know when. He was definitely talking about the Flynn case and 302s.
Delete... unless my memory is flaking out.
From a legal standpoint I don't see how that could be. You're welcome to prove me wrong.
DeleteI think this was the interview:
ReplyDeleteLast week, Rep. Devin Nunes, ranking member of the House Intelligence Committee, told Fox News host Laura Ingraham that committee Republicans, who were in the majority prior to January 2019, “were briefed by the FBI that Flynn didn’t lie. He needs to withdraw the plea, and some of us need to speak on his behalf.”
The way Nunes phrased the second half of the remark -- "some of us need to speak out on his behalf." -- leads me to suspect he has seen the 302, though he does not come out and say he saw it.
SO, I'm reading between the lines something that may or may not really be there. It just a very curious turn of phrase for Nunes to choose if he hasn't seen the original 302.
That's been out there almost from the beginning. For example, dating back to Feb, 2018: Comey told Congress FBI agents didn't think Michael Flynn lied. What agents think doesn't decide whether or not charges will be brought. Nor does Comey's recounting of what agents told him control DoJ or Special Counsel decisions on charging.
DeleteNunes isn't a lawyer.
My thought was that perhaps Nunes was shown the original 302 during the briefing by the FBI, even if HPSCI was not allowed to keep a copy.
DeleteMy speculation on this line is based on the curious coincidence of Powell stating she has a witness who has seen the original 302, and says the agents concluded Flynn didn't intentionally lie, and Nunes contemporaneously bring up the FBI briefing in which they were told the same thing about the the agents conclusions, and his adding the line about: "Some of us need to speak on his behalf."
It just seems like the two things are connected, and if so, one way it connects is if Nunes or his staff saw the original 302, perhaps during the briefing.
No, I just watched that video. Nunes says, "There's missing documentation that WE HAVEN'T SEEN." He then says that HPSCI was "briefed by the FBI" in 2017 that Flynn didn't lie. Again: the FBI doesn't make charging decisions. Nunes says he's a witness, but only in the context that he's saying what he was "briefed" by the FBI. That's not controlling. And he never suggests that he's seen evidence. To the contrary, he says there are docs he HASN'T seen.
DeleteHere's the actual interview:
Deletehttps://youtu.be/P7d3jHLLCAg?t=272
What really got my attention is how Nunes says "There were several of us as witnesses." to the FBI reporting in early 2017 that they had concluded Flynn hadn't intentionally made false statements during his interview.
He does say "there is 'missing documentation' that we have never received" referring to the original 302. But note he does NOT say "... that we've never SEEN."
He then repeats: "We were witnesses to the FBI telling us Flynn didn't lie."
That's TWICE he refers to himself and others on HPSCI as "witnesses."
Now, it's possible Nunes is being sloppy with his use of language; as you say, he's a farmer, not a lawyer.
But he uses the word "witnesses" twice regarding what's in the original 302, virtually contemporaneously with Powell announcing she has "a witness" who has seen the original 302.
Deep speculation: did a whistleblower show Nunes and others on HPSCI the original 302, but not let them keep it?
I'm with you on this, Mark.
DeleteI mentioned Nunes as a possibility in a comment on your post "Sydney Powell's Super Update on the Flynn Case". However, I mentioned him only because he one of my first guesses IF the witness is not someone who worked in the FBI/DOJ.
As things stand, I believe the witness is somebody who worked in (and perhaps still works in) the FBI/DOJ.
While this is probably not related, it is curious that Sharyll Atkisson recently filed a new lawsuit alleging that a whistleblower who had participated in the hacking of her computer had come forth to confess and name names.
Perhaps various employees at the FBI who were involved with the Russiagate shenanigans are choosing to "blow the whistle" on various illicit activities to mitigate any potential criminal charges that could be brought against them. Reminds me of the Prisoner's Dilemma in game theory.
EZ: Being witness to the FBI orally telling him what the impression of the interviewing agents was. Period. That's a far cry from being a witness to an original doc that differs from the doc that was shown to the defense.
DeleteLike Luke, my first guess is Powell is talking about a DoJ/FBI employee.
MW wrote:
DeleteNunes says, "There's missing documentation that WE HAVEN'T SEEN."
Actually, I just reviewed the video again; he says "we've never received," not "we haven't seen." (5:15 - 5:19 on the tape.)
It's a subtle point, but it's what caught my attention.
Have it your way.
DeleteHe basically says: We told DoJ what the FBI told us. No ref to docs.
He then says documentation is missing and--duh!--they never received the missing documentation. How would you receive missing docs? So if it's missing, they didn't SEE it either.
This isn't subtle.
Here's the bottom line. Team Mueller wanted to get a guilty plea out of Flynn, and they didn't give a shit what the FBI briefed Devin Nunes on. There's no way that the FBI showed a Congressman a 302 from an active investigation. Period.
ReplyDeleteUnless there is a resistance within the FBI
DeleteRob S
Hopefully.
DeleteI did not realize Jessie Liu was still active in Justice, I thought she had been transferred. My mistake. She was nominated to the position in Treasury, but is awaiting Senate Confirmation. Until then, she is still in Justice.
ReplyDeleteThis is a two-part comment where I take stock of the developments and then speculate about Sullivan's potential responses.
ReplyDelete1. Powell's team has proven that the prosecutors violated Flynn's plea agreement. Here's why.
In December of 2018, the prosecutors "filed a motion for a downward departure pursuant to Section 5K1.1 of the United States Sentencing Guidelines." In plain English, they represented to the court that Flynn had been very cooperative and consequently filed a motion recommending leniency.
However, in their latest sentencing memorandum, Brandon Van Grack and his team sought to withdraw that request, stating "the government is no longer moving for a departure under U.S.S.G. § 5K1.1 for providing substantial assistance to the government."
This is problematic for Grack's team, because in an Appeals Court ruling in United States v Padilla, the judges ruled that the government may not withdraw a Section 5K1.1 motion unless the plea agreement explicitly reserves the right of the government to withdraw. Flynn's plea agreement contains no such clauses. Therefore, the prosecutors are in breach.
2. Flynn's legal team provided more compelling evidence that the prosecutors attempted to compel Mike Flynn to commit perjury in the Rafiekian trial, which, had they succeeded, would have left Flynn in breach of his plea agreement, and thus unable to withdraw his guilty plea.
We already knew that Flynn and his team objected to the prosecutorial requests that Flynn testify that he knowingly provided false statements when working with his lawyers to fill out his FARA paperwork.
However, Flynn's lawyers have brought up two new points (I believe this information hadn't been mentioned in filings before; I may be wrong).
First, the prosecutors had attempted to get Flynn to admit to having knowingly provided false information in his plea agreement. Despite the shortcomings of Flynn's Covington Counsel, those lawyers and Flynn objected to this wording, which is why such strong language wasn't included in Flynn's guilty plea.
Second, it appears that after Flynn plead guilty, Van Grack and his team never asked Flynn to make such (false!) statements in his future testimony against Rafiekian, that is until Flynn fired his Covington lawyers and hired Powell. It was at this point that the prosecutors demanded Flynn provide such testimony, and when he refused, they sought (unsuccessfully) to have him labeled a co-conspirator and also threatened to call his son to testify against Rafiekian (an empty threat that they did not follow through on).
The best explanation for this about-face is that the prosecutors were angry Flynn had hired unconflicted, competent lawyers, and accordingly wanted to punish Flynn, and perhaps even compel him to commit perjury (and thus violate his plea deal).
3. Finally, there is the bombshell claim by Sidney Powell that her team had spoken with someone who had seen the original 302--the one Brandon Van Grack et al. pretend doesn't exist. According to this witness, the 302 states that Flynn was truthful in his interview. Obviously, Powell will include this new information in forthcoming supplemental briefs and/or the new motions.
Part 2.
ReplyDeleteIn light of these three developments—the government’s breach of the plea deal, further evidence that the government attempted to suborn perjury, and an eyewitness who claims that the original 302 concluded Flynn was truthful, it’s hard to imagine Sullivan refusing to let Flynn withdraw his plea.
If Sullivan has anything resembling a conscience and retains the capacity for critical thought, he will allow Flynn to withdraw. At that point, I wouldn’t be surprised if Van Grack and his team cut their losses. If they insisted on proving their case before a jury, Powell could call forth her anonymous witness and issue subpoenas to McCabe, Page, Stzrok, and Pientka. Van Grack and his team would lose, their reputations would be tarnished, and they would potentially be held in criminal contempt (which frankly would be delightful!).
On the other hand, if Sullivan foolishly refused to allow Flynn to withdraw and proceeded to sentence Flynn, Flynn’s team would appeal; if they somehow lost on appeal, they would likely appeal to the Supreme Court. Meanwhile, if Durham is taking his investigation seriously (which I believe to be the case), some of the agents who worked on the Flynn case could find themselves indicted. If such indictments transpire, it would be difficult for an appellate court or the supreme court to dismiss Powell’s arguments; that’s why I continue to believe that Flynn’s team will prevail.
I won't speculate re what Sullivan will do. However, one thing that's rather striking to me is this.
DeleteIf the original 302 contained language to the effect that Flynn was truthful, then the agents--Strzok and Pientka--were extremely stupid, incompetent. How could they possibly see into Flynn's mind and determine his intent from his demeanor? The world is full of excellent liars, and FBI agents have no special talents or training that allow them to distinguish truth tellers from liars.
This is not to suggest that Flynn was lying. What I'm saying is that the problem with the original 302 is not the substance--the statement that Flynn appeared to be truthful. That's neither here nor there when it comes to prosecutors charging Flynn. The problem is that a stupidly written 302 was CHANGED. A 302 based on an interview is supposed to be a basically contemporaneous recollection of an interview by the interviewing agents. What we've learned is that the final 302 was so delayed that it was no longer contemporaneous (violated the 5 day rule) and that it was the result of an editing process that included persons who were not present for the interview. Those two factors are what would make the agents' testimony largely worthless--aside from their other well known problems (Strzok, the lead interviewer, was fired for cause). Going to trial would thus be a nightmare for any prosecutor. Which is why they moved heaven and earth to get a guilty plea.
Interesting analysis of the Flynn plea issues:
ReplyDeletehttps://thefederalist.com/2020/01/20/why-michael-flynns-lawyers-and-prosecutors-dont-understand-each-other/
It is interesting to me, but IMO the author gives too much credit for good faith to the prosecutors. IMO, they knew a trial would be a complete train wreck, so they exerted maximum and unethical pressure to get the plea.
Delete