Is Navid Keshavarz-Nia The Kraken?

TGP has a link to the affidavit of an expert consultant to Sidney Powell in her legal challenges to the election. Here's the TGP blog--it's been up for a while but I've been occupied reading a variety of stuff, including the affidavit:

HUGE! Sidney Powell Witness Whom NY Times Described as “Always the Smartest Person in the Room” Concludes Hundreds of Thousands of Votes Transferred from Trump to Biden IN ALL BATTLEGROUND STATES

Keshavarz-Nia, it turns out, is the hero of a NYT article from just this past September, 2020, which TGP quotes:

17. Navid Keshavarz-Nia, those who worked with him said, “was always the smartest person in the room.” In doing cybersecurity and technical counterintelligence work for the C.I.A., N.S.A. and F.B.I., he had spent decades connecting top-secret dots. 

This is the conclusion of the affidavit that TGP quotes:

I conclude with high confidence that the election 2020 data were altered in all battleground states resulting in a hundreds of thousands of votes that were cast for President Trump to be transferred to Vice President Biden. These alterations were the result of systemic and widespread exploitable vulnerabilities in DVS, Scytl/SOE Software and Smartmatic systems that enabled operators to achieve the desired results. In my view, the evidence is overwhelming and incontrovertible.

Where is that evidence? Because it's not enough to cite vulnerabilities--you have to show a likelihood that the fraud actually happened. The evidence Keshavarz-Nia cites is in paragraph 15. Here's a link to the 9-page affidavit, which also gives Keshavarz-Nia's full background.

I'm not qualified to assess the evidence, but others may be able to. I've pasted in paragraph 15 and have highlighted what appear to me to be significant parts of the argument. Naturally, the findings in this paragraph follow upon the preceding portions of the affidavit, but I can't paste it all in:

Harmeet Dhillon's Common Sense Take On The Kraken

I came across this twitter thread by Harmeet Dhillon at FR. What I've done is paste it in and edit its format for readability--regularized paragraph format and so forth. I've deleted all the references and links. You can get it all by going here. 

What I came away with from Sidney Powell's Kraken was the conviction that the simple approach is probably the right one--in the short term. I believe there's ample reason to do a painstakingly thorough audit of the entire 2020 election, but the immediate goal has to be to right the specific wrong--undo The Steal. For that proximate, short term, goal a focus on traditional voter fraud will suffice, even though it may miss the bigger picture of election fraud. This takes nothing away from Sidney Powell's Kraken of a complaint--in actual fact, Powell presents a compelling account of just that sort of fraud. The big picture can be addressed--indeed, must be addressed--as we go forward.

This is a strategy that Harmeet Dhillon expresses well:

SWC Takes A First Look At The Kraken

Shipwreckedcrew has taken time out from his Thanksgiving to read Sidney Powell's Georgia complaint and to provide an overview of it. For my money--and, no, I didn't have to pay to read the article--the most interesting part is SWC's explanation of how Powell got her full case into federal court and how that intersects with the Trump legal team's statement that Powell is practicing law on her own. SWC's explanation fits in well with Giuliani's later statement that he and Powell are pursuing "different theories":

Powell filed this action in federal court, but procedurally she is seeking to have the matter heard by the Court both as a federal constitutional challenge — which gets the matter into federal court — but also as an “election contest” under Georgia State law which would be heard by the federal court pursuant to what’s called “ancillary” jurisdiction. When a plaintiff has both state and federal claims that they can assert in a lawsuit, “federal question” jurisdiction is the basis upon which the federal court will hear and resolve the disputes under federal law. Related state law claims can also be determined by the federal court — applying state substantive law and procedures where necessary — pursuant to the court’s “ancillary” jurisdiction so as to allow all the matters to be resolved as part of one proceeding.

This is just a guess, but this may be one reason why the Trump Campaign opted to announce that Powell is working on her own. I believe the Trump campaign will be filing an “election contest” in Georgia state court very shortly, seeking to prove that a number of unqualified voters larger than the margin between the candidates cast ballots for Biden. If the Campaign was working hand-in-hand with Powell when she filed this suit on behalf of the Electors, it is possible that the Court would consider the campaign an “indispensable” party, and allow the defendants to bring them into this action.

Working separately — separate attorneys and separate investigators — is the basis upon which the Campaign will likely file its own action in state court. That, in effect, gives them at least two election contests underway in different courts at the same time, each with different allegations and theories supporting their request for relief.

In other words, it begins to look like coordinated strategies. You can read the rest of SWC's article here:

Sidney Powell Shoves her Chips "All In" With Georgia Complaint Alleging Rigged Election -- Part One

We'll be looking forward to further analysis from SWC.

 

Rudy Clarifies

Per Breitbart (and h/t Thomas Lifson at AmThinker I am having a nightmare… and I can’t wake upI).

Rudy Giuliani on Break with Sidney Powell: ‘We’re Pursuing Two Different Theories’

In other words, it appears Jenna Ellis bungled the statement of Powell's status. There's no break, in the true sense. Rather, according to Rudy--and his explanation appears to fit the known facts regarding Powell's funding and representations. There is no criticism of Powell expressed or implied in what Giuliani says.

Since the Breitbart story is really just a transcript from Giuliani's appearance, I'll include it all:

UPDATED: Things Fall Apart

Highly entertaining pick-me-up article by Jay Valentine at AmThinker: Why Industrial Scale Fraud Is Just So Hard To Hide. Valentine, a former insurance fraud investigator, recounts how two major frauds--Bernie Madoff and Elizabeth Holmes--DIDN'T go undetected for years. That's right. DIDN'T. There were pain-in-the-ass people all along who pointed out that these emperors of fraud had no clothes, but those people were resolutely ignored by the "smart people" and their media acolytes. How smart were the dupes? Well, you be the judge. In the case of Elizabeth Holmes the dupes included: 

Henry Kissinger, William Perry (former Secretary of Defense), Mad Dog Jim Mattis, remember him?  And rounding out the team with a core Republican, meet George Shultz.

So, people "smart" enough to run the world. Or so they would have us believe. And, amazingly, these "smart" people refused to believe irrefutable evidence that they'd been duped. Instead they attacked the accusers and whistleblowers--even family members.

It all took me back. As a young agent I cut my teeth, so to speak, working fraud cases of various sorts--including a union election fraud case (and I did get a felony conviction, despite, well ...). I returned to these sorts of cases later in my career--for a couple of years. Nothing had really changed, not in the basic way frauds work. Including the number of people who would be in denial that anything untoward had happened. Valentine's central theme makes perfect sense to me, as it will to anyone who's been involved with a fraud. Big scale, industrial scale, fraud just gets too complicated to hide--once someone comes across the loose end of the yarn and starts tugging on it.

So after that entertaining account of two major frauds that took in any number of "smart" people, Valentine applies those ideas to a major fraud or hoax of this century--right up their with the Covid Hoax and the Russia Hoax. It's the Biden Hoax. And the pain-in-the-ass people who are likely to spoil the whole thing are people like Sidney Powell--although there are plenty more, because the internet empowers people like that. Imagine what a pain in the ass Powell must be for the Republican establishment in GA! Apply an exponent to that when you turn to DC.

UPDATED: Taking Stock After The Sidney Powell Story

A good way to start the week may be to briefly summarize where we stand with the big picture of the Sidney Powell challenge. Hopefully this will move us past what increasingly appears to have been a distraction--intentional or not: The Trump team announcement that simply confirmed what Powell has always been clear about: She's working on her own for "we the people." We the people need to take stock before events begin multiplying.

While I say "the Sidney Powell challenge", what we're really talking about is the distinction between traditional types of "voter" fraud and the less familiar forms of "election" fraud. People like Matt Braynard (and others) are doing the research into voter fraud in this election--false ballots based on dead persons, persons who have moved out of state continuing to vote, persons voting in more than one state, absentee or mail-in ballots being cast in the name of people who didn't actually cast them. This is the underpinning for much of what happened, and there's no question but that this fraud was extensive and well organized. It was made possible by commercial databases, which also make the fraud discovery research possible on a scale well above gathering anecdotal evidence from individuals.

"Election" fraud refers to the use of software controls to manipulate votes--using algorithms to apportion or "weight" votes between candidates on a predetermined proportional basis, shifting votes between candidates, etc. This is the type of fraud that Sidney Powell has been alleging and is supported by the research of people like Russ Ramsland. However, behind both types of fraud are the same types of basically common sense observations that lead so many to conclude that the 2020 election results are wildly improbable.

Those are all aspects of the fraud issue that we've been discussing in posts and comments.

Without offering anything new--which we hope will occur later in the week per Sidney Powell's assurances--I want to present here some of that common sense support for the allegations of election fraud.

MULTIPLE UPDATES: Re The Seeming Disavowal Of Sidney Powell By Trump Legal Team

I put this in two comments, but here's what I'm seeing from sources who are probably informed--best I can say, independent sources with similar take:

From Michael Flynn's bro:

Jack Flynn #NeverConcede

@GoJackFlynn

Defending the Republic – Sidney Powell's Legal Defense Fund. The statement tonight was a simple clarification of⁦ @SidneyPowell1 role. Why would she need a fund site set up site if she were being paid by the RNC? SIDNEY IS OUR WARRIOR. SUPPORT HER. https://defendingtherepublic.org

5:26 PM · Nov 22, 2020·

Further:

Field of Fight 

@FieldofFight

Wrt the @JennaEllisEsq press release.

Very confident this has 2 do w money coming in for legal defense fund sppt @SidneyPowell1 has her own separate entity 4 legal donations that isn’t in conj w the Trump legal team.

Frees SP 2 do her own thing...which will STILL b biblical.

5:24 PM · Nov 22, 2020·

UPDATE 1: OUCH!

Jonathan Turley

@JonathanTurley

Replying to 

@JonathanTurley

If B.F. Skinner was right that "chaos breeds geniuses," the Trump legal team will soon be given Mensa status.

5:03 PM · Nov 22, 2020·

UPDATE 2: I'd been meaning to get to this. There has been a massive circling of the Deep State wagons over the last two days--which makes me tend to believe that Sidney Powell is truly on to something. To me, a tell in matters such as this one is the issuance of non-denial denials. Or, put another way, denials of something that wasn't exactly the issue.

For example, the denials--by an anonymous "Army spokesman" or an equally anonymous "national security official"--that the "the Army" seized servers in Germany. As you know, I've never believed that "the Army" did that. And have you read the CIA denials that Scytl was their front company, or that they operated a server farm in Germany, or that they've ever diddled with elections? Me neither.

Now here's another example--and very pertinent to the current Powell brouhaha. Dominion denies that their "machines" can "switch votes." That's per Dominion PR Spokesperson Responds to Allegations of Voter Fraud, Irregularities.

The Dominion spokesman stated--seemingly forthrightly:

“It is not physically possible for our machines to switch votes from one candidate to the other.”

And who exactly asked whether the "machines" could do this "physically"? The author at Red State jumped all over that:

Well, of course the “machines” wouldn’t “physically” do it. But is he truly arguing that the machines can’t be hacked? Multiple demonstrations by media when they actually cared about the issue, have indicated that they could be. That’s not to say there’s proof they were hacked here, only that his claim is misleading.

Another issue: Why did Dominion make their non-denial denial to Fox and not--as requested--to the PA legislature?

Bottom line: I'd be very loath to think ill of Sidney after all the good she's done.

UPDATE 3: In Sidney's words:

Attorney Sidney Powell released a statement late on Sunday after the Trump legal team announced that she was not part of their legal defense team.

“I understand today’s press release. I will continue to represent #WeThePeople who had their votes for Trump and other Republicans stolen by massive fraud through Dominion and Smartmatic, and we will be filing suit soon.”

daily wire

Which is exactly in line with what she told Larry O'Connor. This reflects worse on the Trump legal team than on Powell. And, at this point, reflects not too well on those who rushed to judgment.

UPDATED: Major Takeaways From Sidney Powell's Big Interview On Newsmax

I'm sure most of you have listened to at least parts of Sidney Powell's interview from last night. I won't attempt to evaluate the details of the factual claims that she makes. I think we're beginning to see confirmation--from multiple independent researchers--of the types of computer driven fraud that she's been talking about. Time will bring out more. 

Commenter aNanyMouse notes that no less a lawyer than Alan Dershowitz believes--provided the evidence is available--the Trump team will have a good chance of prevailing. There is a bit of a two edged sword involved here. A lot of people tend to pooh-pooh statistical evidence--but it is real and can be conclusive. The flip side is that in the real world of a courtroom that type of evidence is going to have to be more compelling than, say, witness testimony. It will need to be pretty black and white, not merely suggestive--even though the standard of proof in civil proceedings such as these is 'preponderance of the evidence,' not 'beyond a reasonable doubt.' And it also takes time to pull it all together, as Powell stresses in the interview. That said, what we're starting to see appears encouraging. 

Now, I want to provide a partial transcript of the Powell interview. I've edited it some, but if it's in quotes ("") it's literal. For those who haven't listened, it's here: Sidney Powell: It will be BIBLICAL. These are points that I think are important for people to keep in mind as we go forward, because everyone is frustrated that we don't know everything NOW. I continue to be convinced that Powell would not be making allegations that are so very specific unless she had a very firm basis on which to make them.

The first section is an extended Q & A that starts with Powell alleging that Dominion added 35K votes to Democrat candidates. However, that leads into two important legal issues: the standard of proof required (to which I alluded above) and another that's on many people's minds--what's going on, or not, with the Department of Justice?

UPDATED: Recommended: Best Interview So Far With Sidney Powell

Larry O'Connor (h/t sundance) has the most intelligent, informed, interview I've heard so far with Sidney Powell regarding the case she plans to bring within the next two weeks. O'Connor is well prepared and asks many of the right questions. He moves the interview along (just about 20 minutes) but allows Powell to answer fully. Powell for her part is quite forthcoming. 

Highlights:

Powell is not plugged into any single theory of fraud--she recognizes several possibilities and combinations of possibilities. In that regard she discusses some of the evidence that has so far been gathered, while stressing that this process remains ongoing.

Between now and December 14 her goal is to have "the outline" of a case ready to file in federal court--it's a matter right now of coming to grips with huge amounts of evidence, and that process will continue.

She continues to state that she's appalled that DoJ/FBI hasn't seized all voting machines in every states and reiterates: the problems are not only with Dominion machines, but with all machines she's aware of.

Both parties have benefited at different times from the corrupt processes introduced into our electoral system by Dominion and related actors, who are in it for the money.

There should be no Georgia runoff that uses the current machines--there should be an injunction against proceeding with the current system in place.

She repeats allegations of kickbacks for adopting Dominion systems--specifically mentioning Georgia.

She addresses the question: If the fraudsters were able to manufacture ballots in sufficient numbers to match the electronic manipulation, why bother with the electronic manipulation? Her response is that it was necessary in order to keep the count proceeding. She points again to the counting stoppage in multiple swing states which, she says, was necessary because the Red Wave of Trump votes had gotten so far ahead of the fraudsters manipulations--the Red Wave "broke the algorithm."

O'Connor points out that everything that Powell has said about the Mueller/Flynn case has been borne out--her reliability is a matter of record. (Powell interjects that all has still not been revealed in that case.) O'Connor says this in the context of Tucker Carlson's accusations. Powell gives her account of her dealings with Carlson.

• Description

EXCLUSIVE: Sidney Powell

UPDATED: What If Flynn Loses?

Today in the oral arguments Sidney Powell did a masterful job of exposing what's at stake in the Flynn case at this point. She rebutted the idiotic notion that Gleeson and Sullivan will conduct a simple hearing on July 15. No, she said, the resulting inquiry would go on for "six months or more."

What she's, in effect, saying is that Sullivan plans on transforming Gleeson into a judicially appointed Special Prosecutor. Count on it: among other outrages they will make a play to depose even AG Barr and even President Trump. This will continue through the election, with the object being to force Barr and Durham to back down from prosecutions.

Our constitutional order hangs in the balance. Who will step up?

UPDATE: I've been reading up on the oral arguments--Margot Cleveland makes some good observations. The problem, of course (and not her fault), is that it's difficult to make an overall presentation of oral arguments within a few hours of the event. Will Chamberlain has a periscope tv presentation that covers a lot of ground--if you're really into this. He makes the point that, while all three judges seem to agree that Flynn deserves to have the case dismissed, the problem that arises for Henderson in particular seems to be the notion that no ruling on the motion has been made yet.

I guess I can understand that appellate judges would want to hash that issue out, but it's still a bit shocking to me. There doesn't seem to much doubt that Sullivan is gaming the system. All the judges seemed to agree that Sullivan's personally selected "amicus" submitted an "intemperate" brief. If you as an appellate judge didn't bother reading all the other evidence of Sullivan's prejudice (not to say ignorance)--accusing Flynn of "treason" comes to mind--the appointment of Gleeson should be a clue. Gleeson has made no secret of where he wants to go with this "inquiry" into Executive Branch "motives." In face of this clear attempt to game the system, it seems to me that the government's arguments to bring this miscarriage of justice to an end are totally compelling. Add to that the hardships already inflicted on Flynn, and the dithering about waiting for Sullivan to rule becomes, in my opinion, a deeply unserious position that discredits the judiciary in the eyes of the nation.

It all smacks of the judiciary as a tightly knit club that is more concerned with its own status than it is with rule of law in a truly meaningful sense--which should exclude patent attempts to game the system for blatantly politicial purposes. It's not a good look for a branch of government that talks about doing justice. Hopefully Henderson's closing question to Wall is an indication that these issues concern her, as well. Does Henderson get it, that the best way to preserve the rule of law and to see justice done, as well as to preserve the proper roles of each branch of government, is to allow the DoJ to "self correct" (her words) when there is no longer a conflict between government and the accused?

That answer to that question could be crucial to a normal electoral process and even the future of our constitutional order. Allowing the prosecutorial persecution of a disfavored political opponent was bad enough. Allowing a judge to step in and enforce a continuation of that injustice when the prosecution seeks to right the wrong is IMO far more destructive for the long term.

UPDATED: Overall Looks Like A Favorable DC Circuit Panel For Flynn

The three judges who are handling Powell's Petition for a Writ of Mandamus are:

Neomi Rao - Trump; notable:

In an October 11, 2019, opinion of a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, Rao was the dissent in a 2-1 ruling to affirm a district court ruling supporting a congressional subpoena for President Trump's records from accounting firm Mazars USA LLP. Her opinion stated, "allegations of illegal conduct against the president cannot be investigated by Congress except through impeachment."

Karen LeCraft Henderson -  George H. W. Bush; notable:

In February 2020, Henderson joined the opinion of Circuit Judge Thomas B. Griffith when the majority held that the United States House Committee on the Judiciary could not enforce a subpoena upon President Trump's former White House Counsel, Don McGahn.

Robert L. Wilkins - Obama


Sullivan has ten days to respond to Powell's petition. Sidney Powell comments: "The short time-table recognizes the seriousness of the issue to the proper administration of justice." Also, note that the court specifically invites a response from the government.

UPDATE 1: shipwreckedcrew:

In more than 30 years of practicing law, almost exclusively in federal courts, I have never seen a federal appeals court direct a district court judge to personally respond to a litigant’s motion, petition, or appeal.

Paul Mirengoff:

Flynn was fortunate to draw the panel he did. It consists of Karen LeCraft Henderson, a Bush 41 appointee, Naomi Rao, a Trump appointee, and Robert Wilkins, who was appointed by Obama.

That panel’s order is “per curiam.” There is no indication that Judge Wilkins disagreed with it.

Hans Mahncke:

Hans Mahncke
@HansMahncke 

The D.C. Circuit just asked Sullivan to answer this exact question, i.e. on what basis does he claim to have discretion not to dismiss? He could have asked the parties to write briefs. Now he's been ordered to do it himself. 

Quote Tweet

Hans Mahncke
@HansMahncke
 · May 13
The only legitimate question that Sullivan can ask is whether he has any discretion not to dismiss? That’s it. If he thinks he might have some discretion then he should either figure it out himself or ask the lawyers to write briefs. Instead, he’s allowing the mob to smear Flynn. 

5:51 PM · May 21, 2020

If you can't get enough of this: https://www.pscp.tv/w/1gqxvEQAMmnJB

UPDATE 2: Here's the unrolled thread by John M. Reeves that commenter EZ pointed to. Very thorough explanation:

https://threadreaderapp.com/thread/1263588369918906373.html

What A Disturbing Email!

And especially because lawyers at Covington are probably not used to receiving such disturbing emails as this from reporters with the NYT. The question Sidney Powell probably has is, Why did Robert Kelner think those listed "professionals" at Covington would want to know about this email? Kelner and Anthony, we understand. Chertoff and Brian Smith? Well, I think we'd like to know more. It might be no more than a heads up, PR damage control type thing. On the other hand, maybe they had more involvement in the case than we're aware of.

I'll bet they wish now they never heard the name "Sidney Powell."

And who are these Covington "professionals"?

Robert K. Kelner - Kelner's profile is strangely shy about mentioning Michael Flynn as one of his prominent clients.

Stephen P. Anthony - Anthony is a partner. He's also strangely bashful about his representation of Flynn. Before going into private practice:

U.S. Department of Justice, Criminal Division, Public Integrity Section, Trial Attorney (1996-2000)
Assistant US Attorney, District of Columbia (1991-1996)

I think I get it. He's a Clintonista who followed his former boss, Eric Holder, to Covington.

Alexandra Langton - Alexandra is a proud Biden supporter and an alumna of the Obama White House:

The White House, Office of Cabinet Affairs, Intern (2013)   
United States Department of Justice, Office of International Affairs, Intern (2011-2012)

Michael Chertoff - Senior Of Counsel, Mr. Deep State himself.

For the 2016 presidential election, Chertoff, who was involved as special counsel investigating Bill and Hillary Clinton for Whitewater in the 1990s, endorsed Hillary Clinton.

Brian D. Smith - Partner, another veteran Clintonista--he came to Covington from the Clinton White House:

The White House, Office of the Counsel to the President (1997-1998)
U.S. Department of Labor, Special Assistant to the Secretary of Labor (1996)
U.S. Department of Labor, Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs (1995)
Rep. Alan Wheat (D-Mo.), Assistant Campaign Manager (1994)

Can't Recommend Highly Enough

Read Margot Cleveland at The Federalist this morning:

SCOOP: CIA, FBI Informant Was Washington Post Source For Russiagate Smears

These close connections between the Washington Post’s David Ignatius and people connected to U.S. and U.K. intelligence raise grave concerns about the deep state using media to push propaganda.

The sub-title tells the overall story. More specifically, it's all about the John Brennan's plot to frame Michael Flynn by falsely accusing him of having an affair with a supposed Russian "honeypot," Svetlana Lokhova, in Cambridge. Stefan Halper and Christopher Andrew--so-called "academics" but really professional informants and intel operatives--figure in bigly, as you'll know from Lee Smith's book and previous reporting.

Cleveland provides one of the key paragraph's from Sidney Powell's most recent filing (she's due with another later today) in nicely formatted form:

Stefan Halper is a known long-time operative for the CIA/FBI. He was paid exorbitant sums by the FBI/CIA/DOD through the Department of Defense Department’s Office of Net Assessment in 2016. His tasks seem to have included slandering Mr. Flynn with accusations of having an affair with a young professor (a British national of Russian descent) Flynn met at an official dinner at Cambridge University when he was head of DIA in 2014. Flynn has requested the records of Col. James Baker because he was Halper’s ‘handler’ in the Office of Net Assessment in the Pentagon, and ONA Director Baker regularly lunched with Washington Post Reporter David Ignatius. Baker is believed to be the person who illegally leaked the transcript of Mr. Flynn’s calls to Ignatius. The defense has requested the phone records of James Clapper to confirm his contacts with Washington Post reporter Ignatius—especially on January 10, 2017, when Clapper told Ignatius in words to the effect of ‘take the kill shot on Flynn.’ It cannot escape mention that the press has long had transcripts of the Kislyak calls that the government has denied to the defense.

There's a lot of detail. Cleveland does a great job portraying all the perps as the complete shits that they are.

Gosh, no wonder Barr wants to do a 'hatchet job' on these disgusting excuses for human beings. I suspect if Barr has his way Halper will get what he deserves--good and hard.

So, David Ignatius at WaPo has been completely exposed as a Deep State operative. Next question: Who are the other journos who will be exposed? We need to know all of that.

ADDENDUM: Nothing could be more clear at this point than this: The Russia Hoax never could have happened without massive, near total, complicity on the part of the MSM with the Deep State of federal Intel-related agencies. NYT, WaPo, CNN, DoS, CIA, FBI, DoJ, NSC--that's a beginning of your Russia Hoax alphabet soup. And of course we can now add in SSCI and assorted other Congressional actors as well as the top levels of the military--especially including McMaster.

Hatchet job? Barr needs a chain saw.

Your FBI In Peace And War

There's an important story out today that illustrates why Sidney Powell, in item #7 of her Motion to Compel in the Flynn case, is demanding:

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.

The title of the article is pretty self explanatory--Court: FBI Must Destroy Memos Calling Antiwar.com a Threat: Ruling comes after a eight-year battle over secret surveillance of the popular website after 9/11.

Obviously, if the FBI was monitoring an innocuous outfit like Antiwar.com, one can imagine what might have been going on with regard to someone like General Michael Flynn--regarded as a genuine existential threat to the US-UK Deep State. Powell is absolutely right to suspect that the FBI may retain "documents, reports, correspondence, and memoranda". Nor is it far fetched to suspect that National Security letters (NSL) may have been used to obtain all sorts of records regarding Flynn or that the FBI may have sought (and perhaps obtained) a FISA against Flynn previous to the Carter Page FISA. Anyone who didn't at least suspect a FISA and take the use of NSLs against Flynn would be a fool.

The article also gives readers an opportunity to test their understanding of FBI Guidelines for National Security investigations. The article reveals that the FBI did in fact open a Threat Assessment on Antiwar.com and at least sought to open a Preliminary Investigation (PI). A PI, if obtained, would not have allowed for a FISA, but it would have allowed the use of NSLs to obtain financial records and many other records.

I'll copy in the article's account of what the lawsuit was all about. Note that, since this was a national security investigation, Antiwar.com became aware only by accident that they were being, or had been, targeted and monitored as a possible national security risk. The same could have been happening to Flynn, without him being aware. I urge you to read the rest of the article (linked above) to get a taste of the puerile, yet dangerous, thinking behind this caper. The same quality of reasoning will likely show up in the documentation associated with the Russia Hoax. Also, note that the absurd resistance to the lawsuit went on for eight years--hey, money's no object for the government, unlike for the rest of us. The Appellate Court opinion can be found here.

Did The Russia Hoax Actually Start With Flynn?

Margot Cleveland has a very worthwhile article at The Federalist today--Sidney Powell’s Latest Motion In Michael Flynn’s Case Is A Russiagate Bombshell: Lawyer Sidney Powell’s bigger plan is to expose the breadth and depth of SpyGate and how flaying Michael Flynn lay at the heart of the soft coup attempt. Cleveland goes over some of the revelations contained in Sidney Powell's Motion to Compel that was released to the public yesterday. In doing so, Cleveland points out, once again, the key requirement contained in the standard that was enunciated in the Yunis case: relevance. At the hearing this issue was alluded to in a key exchange between Judge Sullivan and Powell:

Powell, though, must still establish that the evidence sought is Brady material. Judge Sullivan seemed skeptical of the relevance of some of the evidence Powell mentioned and how it bore on Flynn’s guilt for the offense of conviction, namely lying to FBI agents. But Powell parried well, noting, for instance, that evidence concerning the texts exchanged between former FBI Agent Peter Strzok and DOJ lawyer Lisa Page were impeachment evidence.

"Impeachment evidence" is evidence that strikes at (impeaches) the credibility or character of witnesses. This evidence can be considered as a subset of Brady material, and is known as "Giglio information", after the case of Giglio v. United States. Here's a useful explanation of Brady and Giglio:

In U.S. law, Giglio information or material refers to material tending to impeach the character or testimony of the prosecution witness in a criminal trial. 

The Supreme Court's 1963 decision in Brady v. Maryland, 373 U.S. 83 (U.S. 1963) held that the prosecution violates due process when it "withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty. 

In Giglio v. United States, 405 U.S. 150, 153 (U.S. 1972), the Supreme Court extended the prosecution's obligations under Brady to disclosure of impeachment evidence. Supreme Court clarified that all impeachment evidence, even if not a prior statement by a witness falls within the Brady rule. Giglio mandated that the prosecution should disclose any and all information that may be used to impeach the credibility of prosecution witnesses including law enforcement officers. Impeachment information under Giglio includes information such as prior criminal records or other acts of misconduct of prosecution witness, promises of leniency or immunity offered to prosecution witnesses.

When you consider that phrase "other acts of misconduct" you'll understand the relevance of Powell's demands. There's no way that Sullivan failed to understand the point.

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.

MAJOR UPDATE: The Flynn Hearing 9/10/19

MAJOR UPDATE: Scroll to the end for details of this update. I call this a major update because transcripts of the hearing are now available and they confirm my initial impression that the hearing went very well for the Flynn side--terrific job by Sidney Powell and h/t to Techno Fog.

**********************

The Flynn hearing took place this morning. The hearing was supposed to be a scheduled status conference heading toward setting a sentencing date for General Flynn. However, in the meantime--on 8/30/19--Flynn's new lawyer, Sidney Powell, had filed a bombshell motion asking for the prosecutors, led by former Team Mueller member Brandon van Grack, to be removed from the case for misconduct--specifically for withholding Brady material.

Judge Sullivan first set a tentative sentencing date: December 18, 2019. Then the hearing moved on to matters related to Powell's motion.

What I've done here is conflate the separate twitter threads of Will Chamberlain and Zoe Tillman to provide a somewhat running and connected account of the most relevant parts of the hearing.

From the start, Judge Sullivan made it clear that he took Powell's motion very seriously. He also quickly disposed of an initial issue. Having noted that Flynn, in his plea agreement, had agreed to forgo the pursuit of additional discovery, Judge Sullivan then stated that the plea agreement wasn't binding on the court. That means, as Judge Sullivan pointed out, that the plea agreement cannot be used to absolve the prosecutors of their obligations under the judge's Brady order. So, the Brady case and Judge Sullivan's order--NOT the plea agreement--will control the judge's consideration of Powell's motion.

Judge Sullivan then specifically addressed the question of whether it would be necessary for the government to turn over classified materials, as Powell is demanding. Judge Sullivan reiterated his position that the Yunis standard would control. If the classified material is relevant and helpful to Flynn's sentencing is will need to be turned over. (This was discussed previously at What Happened In The Flynn Case Today 9/5/19.)

MULTIPLE UPDATES: What Happened In The Flynn Case Today 9/5/19

On the obvious level, what happened is perfectly clear. The Court, namely Judge Emmet Sullivan, called Sidney Powell in to tell her that he was separating her motion into two parts or, in effect, two motions: a motion to compel the production of exculpatory material, and a motion requesting that the Court intervene regarding a security clearance for Powell, so she can view Brady material that's classified:

The Court advised counsel that it intends to resolve [the] Motion to Compel Production of Brady Material before addressing any Court intervention regarding security clearances for Mr. Flynn's counsel. 

That's a perfectly logical procedure, since if Sullivan denies the motion with regard to Brady material then the business about a security clearance becomes moot. It appears we can expect that ruling on 9/10/19.

Of course there are at least two things that everyone wants to know. The first is, Did Judge Sullivan tip his hand at all? The answer is, No.

Sullivan is in a bit of a difficult position. He has long championed the practice of requiring expansive disclosures of Brady material (exculpatory material) by the prosecution. That is supposed to happen before a trial or any other significant action--such as a plea agreement. In the Flynn case, as Sidney Powell has argued, Flynn's original lawyers failed to demand all the material that they should have demanded. Part of the reason for that was because the prosecution put extreme pressure on Flynn to come to a plea agreement to avoid charges being brought against his son. Thus, the prosecution, in a real sense, did an end run around Judge Sullivan's well intended order by finding Flynn's most vulnerable point--his love for his son--and ruthlessly exploiting that weakness. If you call that a weakness. Nice people. It's all about justice--Not!

If Sullivan grants Powell's motion regarding Brady material--and, to my mind, she has made a very convincing case--then, to be logical, Sullivan would have to pretty much set off a bomb under the case. Which, of course, is what Powell wants, and it would place the prosecutors very much under the gun. That would be a very bold move on Judge Sullivan's part, but he has done the bold, and right, thing in the past. General Flynn makes a pretty compelling figure before the Court.

The other question is, If Sullivan rules against Flynn will an immediate (interlocutory) appeal be possible? My best guess is that such an appeal would not be allowed, which would mean that the case would move on to sentencing. This is a pretty technical area, although the trend of all recent decisions has been to severely restrict interlocutory appeals. My guess is still pretty much just a guess. On the other hand, this would appear to be a pretty messy way of proceeding and might tell in favor of granting the motion.

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.

UPDATED: Sidney Powell Shakes Up The Flynn Case

Team Mueller thought they were pulling a smart maneuver when they farmed out the Concord Management and Flynn cases to friendly local US Attorney offices--in New York and DC. This ploy was clearly intended to thwart the supervision of those cases that would result from the anticipated appointment of Bill Barr as Attorney General. The Attorney General exercises direct supervision over a Special Counsel--as we saw in Barr's handling of the Mueller Dossier--but there is little that the AG can do when local US Attorneys (presidential appointees, as I keep reminding one and all) prosecute an indictment that has been returned by a grand jury in their district. Little did Team Mueller anticipate what would happen!

In the Concord Management case, Team Mueller obviously never expected that the Russian defendants would actually contest the case in court. Instead, Concord's US lawyers have done yeoman work exposing the absurdity of the claim that "the Russians" had any measurable impact on the 2016 election through internet activities--or that their activities were even intended to have such an impact.

In the Flynn case it appeared for a long time that Team Mueller would have its way against Flynn. Flynn was framed, indicted, and pressured into a guilty plea that made little sense. The only thing left was sentencing, and in the initial stages of that final step Flynn steadfastly maintained his guilt, even under what appeared to be clearly skeptical questioning by Judge Emmett Sullivan.

However, Flynn may have been saved by unforeseen circumstances. Sentencing was repeatedly delayed while Flynn continued his "cooperation" against his former Turkish associates. And then, for reasons we are not privy to, Flynn dumped his DC establishment legal team and hired Sidney Powell to lead a team that includes prominent legal ethics experts. Powell herself, an experienced former prosecutor and current criminal defense lawyer with extensive appellate experience, has literally written the book on modern DoJ prosecutorial abuses: Licensed to Lie. That book included extensive documentation relevant to key players in the Team Mueller operation as well as--very pertinently--on the Ted Stevens case.

Powell's initial moves made it clear that, as expected, she was examining the possibility of seeking a dismissal of the charges against Flynn based on the same types of prosecutorial misconduct she documents in her book. In particular, it was clear that Powell believed that Team Mueller had withheld exculpatory information that should have been provided to the defense under the Brady Rule and in accordance with Judge Sullivan's standard blanket Brady order.