Friday, April 24, 2020

UPDATED: Breaking: DoJ Files Exculpatory Docs In Flynn Case

I guess I can call it "breaking," since Sean Davis of The Federalist reported it about a half hour ago.

Details are murky, since the documents were filed under seal. In the body of the brief story Davis qualifies the report with the word "allegedly":

Newly Filed Court Documents Include Exculpatory Evidence For Michael Flynn
New documents filed under seal in federal court include exculpatory information about former White House National Security Adviser Michael Flynn, an FBI official told The Federalist on Friday.

Further, the use of the term "Department of Justice" is ambiguous, given that many reporters fail to distinguish among various components of DoJ--Main Justice components, a local US Attorney (here, DC). Here's what Davis is able to tell us. Note that the information is sourced to the FBI, rather than to DoJ. The sentence is long, but the beginning and end are the important parts:

The new documents, which were filed under seal by the Department of Justice Friday, allegedly include exonerating evidence about Flynn, who pleaded guilty to lying to federal investigators about his conversations with foreign diplomats as Trump’s top incoming foreign policy adviser and is currently attempting to withdraw his plea, as well as evidence of malfeasance by the FBI during its investigation of Flynn.

And then there's this important added bit of information:

According to the FBI official who spoke to The Federalist, FBI general counsel Dana Boente led the charge internally against DOJ’s disclosure of the new materials. Boente, who briefly served as acting Attorney General after Trump became president, personally signed off on one of the federal spy warrants against former Trump campaign affiliate Carter Page. The new documents, which were filed under a protective order by DOJ on Friday, will reflect poorly on the FBI, the official told The Federalist. It is not clear when, or even if, those documents will be unsealed and made available to the public for review.

Finally, while we can only speculate at this point, we do know that at the beginning of April AG Barr brought in an outside US Attorney--Jeffrey Jensen of St. Louis--to "reexamine" the entire Flynn case. Was this disclosure of documents--apparently strongly opposed by Dana Boente, a longtime highlevel DoJ official and now FBI Director Wray's counsel--made at the instigation of Jensen? I think we know it wouldn't have been undertaken by the lead prosecutor, former Team Mueller lawyer Brandon Van Grack, whose work Jensen is "reexamining."

Very interesting.

UPDATE 1: OK, I was right--the release of documents was by USA Jensen, whom Barr appointed to "reexamine" the Flynn case. "EDMO" in the letter from Shea (USA-DC) that Sidney Powell posted means "Eastern District of Missouri," which is St. Louis--and that means Jensen.

Significant development regardless, and Powell characterizes the documents as "remarkable new & long withheld BRADY evidence."

UPDATE 2: I'm about to start reading Sidney Powell's supplement to the motion to dismiss. According to TGP Powell says that the new material “defeats any argument that the interview of Mr. Flynn on January 24 was material to any “investigation.” The government has deliberately suppressed this evidence from the inception of this prosecution—knowing there was no crime by Mr. Flynn.” This, of course, was at the heart of what I argued strenuously: The FBI agents who interviewed Flynn--and those like Comey and McCabe who ordered their actions--were acting outside their official authority. They knew there was no crime to investigate or any other legitimate action. They were part of a conspiracy to deprive Flynn of his civil rights under color of official authority and law.

Powell also claims that she “has found further evidence of misconduct by Mr. Van Grack specifically.” Maybe Van Grack will want to spill the beans on Team Mueller?

It's hard to believe that what's going down isn't part of Durham's investigation.

UPDATE 3: This passage from the Supplement to the Motion to Dismiss gives an idea of what may be coming:

Since August 2016 at the latest, partisan FBI and DOJ leaders conspired to destroy Mr.Flynn. These documents show in their own handwriting and emails that they intended either to create an offense they could prosecute or at least get him fired. Then came the incredible malfeasance of Mr. Van Grack’s and the SCO’s prosecution despite their knowledge there was no crime by Mr. Flynn. All this new evidence, and the government has advised there is more to come, proves that the crimes were committed by the FBI officials and then the prosecutors. The government’s misconduct in this case is beyond shocking and reprehensible. It mandates dismissal.

Furthermore, this Court should order the government immediately to provide the defense with unredacted copies of the documents in Exhibit 3, filed under seal. Those documents were filed under seal solely in an abundance of caution because the government produced them under the protective order, and we request that they be unsealed. Consequently, Mr. Flynn is filing Exhibit 3 to this Supplement contemporaneously and asks that the Court promptly unseal the document.


  1. Sidney Powell thinks the materials are significant.
    "The government just provided the #Flynn defense with remarkable new & long withheld BRADY evidence. Letter below just filed. Stay tuned."

  2. Appears many things are coming to a head.

    1. We hope! You have to wonder whether this is the first shoe to drop in what will become a series of developments spaced out for effect.

  3. It seems like from the letter Sidney Powell posted, that the materials are a direct result of a review the DOJ ordered by Barr. That cannot be good for the Flynn prosecutors.

  4. Does anyone know if Van Grack likes to take long strolls alone in Ft. Marcy Park?

    More seriously, I agree with the comment above that things appear to be coming to a head. Perhaps the most important implication of this is that the moves made by Barr, appointing Jensen and others to look into various Mueller generated prosecutions a few months ago are clearly not "window-dressing." It's becoming clear these reviews are for real, and Barr appears to have had very good "predication" for ordering them.

    This perhaps ties into a question posed to Joe DiGenova earlier this week on the Howie Carr show, regarding Durham and prosecutions: Joe opined that there are prosecutions coming, centered on two major conspiracy charges; one for conspiracy to deny services(?,) and the other a conspiracy to deny civil rights (of Page, PapaD, others.)

    DiGenova elaborated that each conspiracy is likely to contain potentially thousands of overt acts specified as being committed in furtherance of the two respective conspiracies, and obviously they involve many people. He opined that there could well be separate charges brought for many of these overt acts in furtherance of the underlying conspiracy, beyond the people at the top of the conspiracy (Brennan, etc.)

    But the really interesting point was that DiGenova speculated that the first thing Durham/Barr might do is something (such as bring an indictment) that "shakes the tree" and causes other co-conspirators to make mistakes in haste that exposes their criminality further, especially if Durham has search warrants for wiretaps on suspects.

    While the Jensen filing in the Flynn case isn't an indictment, it very well may satisfy the practical definition of "shaking the tree."

    But that's just my hunch. DiGenova hasn't opined on the Jensen filing that I know of.

    1. "thousands of overt acts"

      Once a conspiracy is established--probably by showing they knew they had no predication--then any act taken to further the prosecution becomes an overt act in support of the conspiracy.

    2. That's exactly what DiGenova was getting at! He even opined Weissman's prosecution efforts -- despite knowledge of exculpatory evidence -- could be "overt acts."

    3. Another thought: what if the appointment by Barr of Jensen and other outside USAs to "review" various Muller prosecutions were intended to "shake the tree" as DiGenova describes?

      I would appear that Boente may have walked into "trap" by leading the fight to prevent DOJ release of the documents Jensen has just provided. I'm thinking this could have been by design by Barr/Durham -- it lures people like Boente into take actions that may reveal his culpability, as well as that of others, in the conspiracy. It could be especially enlightening if the appointment of these USAs and their reviews precipitated incriminating communications between co-conspiractors trying to block the release of such documents and cover their tails.

    4. Buried in the cover letter:

      "... additional documents may be forthcoming ..."

      That's a "tree shaker." Co-conspirators reading that are going to be wondering "what else has Jensen dug up that we don't want anyone to know about?" And that makes them more nervous than a blind cat in room full of rocking chairs. And when nervous, co-conspirators start communicating with each other asking questions.

    5. I'll be interested to see some opinions on this. Judge Sullivan issued an order to turn over all Brady material. Will he take action against DoJ/FBI officials who obstructed compliance with that order?

    6. Two questions, which may seem ignorant, but I'm no lawyer. Isn't the withholding of Brady material a felony? And if this withheld evidence is materially significant in terms of Flynn's defense, shouldn't his conviction be overturned? Now? Ok, I can wait until Monday.

    7. Another question: the material is characterized as both "exculpatory" and "exonerating." Am I correct in assuming the latter term is the stronger of the two?

      Sydney Powell has often spoken about a failure to turn over exculpatory info, but I do not recall Powell speaking of a failure to turn over "exonerating evidence" until this stuff showed up.

      Seems like it could be a big deal.

    8. I'm not totally clear on that--that was in my mind in my last comment: Can this be construed as obstruction of justice? If so, those responsible would be in world of hurt, because I assume Durham will be going after them. At a minimum, an OPR or OIG investigation could be opened for disciplinary purposes--I'm clear on jurisdiction here, but I suspect we'll be hearing more.

    9. EZ, I think the use of the words depends on the focus. Exonerate would in my mind focus on the public forum, exoneration before the world. Exculpatory is a technical evidentiary term that would focus on strictly legal matters before the court.

    10. EZ, you wrote: "And when nervous, co-conspirators start communicating with each other asking questions."

      Security cameras abound, making in-person meetings and dead letter box drops risky. With social distancing still in effect, the co-conspirators would not want to conduct their conversations at the top of their lungs.

      I would speculate that sales of burner phones have spiked in the DC area recently. ;-]

  5. Mark --

    A point I haven't seen discussed --

    You mention the use of predicate acts and co-conspirator statements to prove up the elements of a crime. One issue I have not seen discussed is the use of a conspiracy charge to ground venue for indictments. Used to be that West Virginia was the official CIA situs (thanks, Sen. Byrd), so lawsuits involving the Agency could be pawned off on that jurisdiction. Have wondered whether a part of the investigation is securing a neutral or favorable site outside the D.C. jury pool.

    1. DiGenova discussed that recently. His view, with which I agree, is that while some of the acts may have taken place in, for example, Northern VA or Eastern VA, most likely most would be in DC and everything will be bundled in DC. But that's just educated opinion by diGenova--who, however, knows these issues inside and out.

    2. Not being a lawyer it would seem reasonable to me that, since the crime intended was to defraud the entire electorate of the U.S. of services, that it would not seem unreasonable for any and all U.S. Districts to be eligible as venue. Since elements of the crime were perpetrated literally in every living room in America by intentionally using the media as an instrumental tool in the crime. The shear breadth of intended damage might make this ground breaking in that regard.
      Tom S.

  6. UPDATE 2:

    MW wrote:

    >> It's hard to believe that what's going down isn't part of Durham's investigation. <<

    I second the motion.

    The more I read, the more I think the conspirators walked into a trap, a trap baited by Barr's appointment of USAs to review the various Mueller generated prosecutions.

    One scenario: some honest prosecutors working on these prosecution teams got fed up with the prosecutorial misconduct, and ratted out Van Grack, Weissman, etc.

    Armed with that info, Durham goes to court (or GJ?) for warrants to tap phones, email, etc. on bad prosecutors.

    Once they surveillance is up and running, Barr appoints Jensen, etc., to review the prosecution teams' actions on the various Mueller cases. This "shakes the tree" and causes co-conpirators to all start chattering with each other about what to do to prevent Jensen and the other USAs from finding stuff they want to keep hidden. And Durham is intercepting all of this incriminating evidence of guilt in the larger conspiracy, not to mention obstructing Jensen or other USAs' reviews!

    I assume Jensen would not release to the court what he had found unless Durham has said, "fine with me." That implies the information Jensen is releasing has already been presented to a GJ, and indictments are either sealed or imminent. If they were not, Jensen would not have filed the documents with the court, because they could jeopardize an ongoing Durham investigation.

    Alternatively, Jensen is running his own GJ, and will go after Van Grack, Boente, etc., separate and apart from Durham, although likely coordinating through Barr with Durham. That allows Durham to focus on his primary targets: the conspirators leading the entire Russia Collusion fabrication and smear campaign inside the Obama Administration.

  7. I can only say that I hope prosecution of govt employees results form this. I am so tired of prosecutors and other officials walking free of their malfeasance having ruined lives they turned upside down. It's named the Department of Justice, not the Department of Prosecution. This Flynn enterprise, along with the hoax/coup has been a miscarriage of justice and a usurpation of constitutional rights and liberty.

  8. is there a civil case for flynn against covington?

    1. Probably handled through their malpractice insurance. However, if I were Covington I'd be concerned about being pulled into the larger conspiracy case. I'm not privy to the facts, of course, but the circumstances are dicey.