The Flynn Case: The Day After

Yesterday, in addition to filing a motion demanding that Sullivan recuse himself from the Flynn case, Sidney Powell also filed her

FIFTH SUPPLEMENT IN SUPPORT OF AGREED DISMISSAL

This fifth supplement contains a copy of one page of handwritten notes that were taken by "a lawyer in the FBI's Office of General Counsel" (which was headed at the time by James Baker). The notes were taken on 1/25/2017 at a meeting that was held by the FBI and DoJ to discuss the Strzok/Pientka interview of Michael Flynn on the previous day, 1/24/2017. The note taker is not further identified--it could have been Kevin Clinesmith, who was assigned to the Flynn case ("Razor"), but that is only a likely surmise. Clinesmith, of course, worked in the OGC, several levels below Baker.

First, let's look at what Sidney Powell has to say about the significance of the these notes--what we can learn from them about the FBI/DoJ view of the case at that time:

Today the Government produced a single page of FBI notes from January 25, 2020 taken by a lawyer in the FBI’s Office of General Counsel. In that meeting it was clear, the day after the FBI’s interview of General Flynn, that “no reasonable prosecutor” would bring a Logan Act charge regarding the December 29, 2016 phone call with Ambassador Kislyak, which was similar to communications by “other transition teams.”

Moreover, the FBI knew on January 25, 2017, that none of the statements made by General Flynn to the FBI the day before could be material to any legitimate FBI investigation or action. These notes are further exculpatory evidence—standing in direct violation of this court’s Brady order—showing that General Flynn has been innocent all along, which the FBI knew from the beginning.

To summarize, Powell makes three points which, as we'll see, require some "reading into" the notes, but which also seem entirely reasonable:

1. The participants in the meeting appear to agree that "no reasonable prosecutor" would pursue a prosecution under the Logan Act;

2. Flynn's phone call with Ambassador Kislyak was similar to calls made by "other transition teams";

3.  There is an admission that any false statements made by Flynn did NOT pertain to any "underlying crime."

So, starting from the top. The participants at the meeting included high level officials from both the FBI and DoJ. On the DoJ side we can identify from the notes four officials, from National Security Division (NSD) and from the Office of the Deputy Attorney General (ODAG):

[Mary] McCord

[George] Toscas

Stu [Evans]

Tash[ina] Gauhar

Matt A.

From the FBI, in addition to the note taker, there were:

James Baker

Bill [Priestap?]

[Redacted]

Taking the notes point by point, we start with:

* D[ominican] R[epublic] travel 

a clear reference to Flynn's vacation travel at the time of the Kislyak call. Next we read:

* tolls - did he [Flynn] talk to admin first 

This appears to be in the nature of a question, presumably: Have we obtained telephone toll records to determine whether Flynn spoke to anyone else in the "administration" before making his call to Kislyak? It's not clear whether this means, Did Flynn talk to any Obama administration officials first, or possibly to the incoming administration--which was still in transition at that time.

That's all preliminary. Now we get to the meat of the meeting, which Sidney Powell obviously focused on.

The first substantive topic is the Logan Act theory, and whether it could be applied against Flynn. The conclusions seem clearly negative, even allowing for the shorthand nature of the notes. Unfortunately, we don't know at this time who the speakers were for this portion of the notes, however, my transcript is exact--quotation marks are in the originals and, so, indicate a direct quote:

* Logan Act - "no reasonable prosecutor"

- uphill battle

- other transition teams

- first time to use it

Translated, the notes seem to indicate a consensus view as follows.

"No reasonable prosecutor" would bring charges against Flynn based on the Logan Act. Such a case would face an "uphill battle", given that "other transition teams" have engaged in the same types of contacts with foreign officials. This would be the "first time to use it [the Logan Act]" in such a case.

Sidney Powell's argument seems absolutely reasonable. 

The next portion of the notes seems to me to be critical, because I believe that, in context, it works off the "No Logan Act" conclusion. Here, the speaker is identified: James Baker, who as General Counsel was the FBI's top lawyer:

* Baker - How do you assess [section] 1001 when you wouldn't prosecute underlying crime?

In effect, Baker appears to be saying: OK, since we're agreed that the Logan Act is a non-starter, how do we assess using 18 USC 1001, False Statements to the Government, since there isn't an underlying crime to prosecute. In other words, if any arguably false statements made by Flynn had no connection to any crime, how can he be prosecuted? It would a bit like if Flynn had lied about what side of the bed he got out on that morning. It might be a lie, but it wouldn't relate to any matter that was relevant to any legitimate government concern. As I have argued at length previously, what Flynn said to Kislyak in that call was none of the FBI's business--and, anyway, the FBI knew what Flynn said. And this is what Powell is referring to when she writes:

none of the statements made by General Flynn to the FBI the day before could be material to any legitimate FBI investigation or action. 

What she leaves out is simply this. The FBI and DoJ all knew before the interview that the Logan Act was a non-starter, that they wouldn't be able to pursue Flynn under that obsolete and unconstitutional statute. They knew that at that point because they had three weeks to come up with a legitimate reason to interview Flynn, and here they are the day after and still unable to come up with a reason. As I wrote in December, 2018, at the time of Flynn's guilty plea: Setting False Statement Traps Is Not Official FBI Business. The interview of Michael Flynn was unpredicated and was therefore conducted outside the legitimate parameters of the FBI's authority.

At this point in the meeting the participants get into a discussion of possible alternative justifications for interviewing Flynn, and here we see the absurd "blackmail" rationale - Flynn supposedly made false statements in public about the Kislyak call and so is supposedly vulnerable to Russian blackmail. So, even though there was no predication for a crime, the FBI would claim that they legitimately interviewed Flynn as a security risk. Got that? Except, of course, how would the Russians blackmail Flynn if Flynn knows that the FBI knows what Flynn said and the Russians know that the FBI knows what Flynn said? It's crazy. Grasping at straws. Not to mention, not true, as we later learned. Anyway, here's how that discussion went:

* We know truth of something being falsely stated to public

- Russians know this - use this against us willingly to lie about facts

- Also - Toscas

we left Razor in position to not correct record b/c we didn't confront him

It's simply embarrassing. These are supposed to be lawyers and intel professionals and this is the type of drivel they come up with to frame innocent people.

Next, there's a short redacted section, in which Stu Evans and Tashina Gauhar had something to say.

Finally, another remarkable conclusion--again, apparently a consensus conclusion--that bears upon predication:

* assessment of whether Razor [Flynn] is a covert relationship w/ Russia --> No, probably not based on facts to date and interview

Now, here's the thing about that assessment. Even if we were to grant, strictly for the sake of argument, that the FBI ever had predication to open an investigation on Flynn as a Russian agent--and I emphatically reject that there ever was such predication--this statement on 1/25/2017 is a clear indication that, as of that date, the FBI knew there was no reason to be investigating Michael Flynn. Period. But we now know beyond any doubt from the Barnett 302 that they continued anyway. Can you say "illegal investigation?"

And so Powell says:

General Flynn has been innocent all along, which the FBI knew from the beginning.

That's it. What a disgrace to the country.