Just on the heels of Friday’s court filings of the U.S. Government’s reply papers, Sidney Powell made several filings of motion papers in the back and forth battle between government attorney Brendan Van Grack and the defense team for Michael Flynn. Once again, she did not disappoint.
First, the government’s reply filed on Friday leaned heavily on their stance that all relevant materials were provided, that Flynn has already plead guilty and thereby is not entitled to anything Powell is demanding, claiming Flynn waived his right to further discovery. The prosecutors also addressed another issue Powell brought to the fore about Flynn’s prior attorneys. In her previous motion papers, Sidney Powell argued that the government knowingly continued to work with Flynn’s prior attorneys despite there being a quite obvious conflict of interest issue because those same attorneys, Covington & Burling, also represented Mr. Flynn on a pending Foreign Agents Registration Act or FARA issue. According to the motion, the prosecutors were supposed to address this conflict issue before proceeding with this matter, but instead failed to do so. The prosecution claims that they addressed this with prior counsel and that Flynn’s attorneys at the time advised they made Mr. Flynn aware of the conflict, but he decided to waive any conflict issues. This was further memorialized by VanGrack’s “note to self” submitted as evidence in the government’s reply.
Sidney Powell brought this up because one of the consistent arguments the prosecution relies upon is the fact that Flynn was represented by counsel at the time he pleaded guilty. The Counsel, Convington & Burling, was also representing him in a FARA violations case. Sidney Powell asserts:
By August 2017, when the government threatened Mr. Flynn with criminal charges related to the same FARA registration, former counsel were immediately caught in the vice of an intractable conflict of interest that they never escaped until Flynn engaged new counsel. By no later than August 2017, the conflict between Mr. Flynn and his former lawyers was non-consentable and not subject to waiver. Even if Mr. Flynn had been fully informed in writing of the conflict at that time, the lawyers were obligated to withdraw from the representation without regard to his wishes.
Some conflicts of interest are so likely to interfere with the effectiveness of counsel, and so destructive of the fairness of the proceeding, that courts must prophylactically override a defendant’s proffered waiver of the right to conflict-free counsel. Wheat v. United States, 486 U.S. 153, 162 (1988) In other words, conflicts of interest that are non-consentable according to professional norms are also not subject to waiver by a criminal defendant under the Sixth Amendment.
According to some astute analysis by Techno Fog on Twitter, the FARA violations Flynn was threatened with could be the very source the government used to obtain the FISA warrants to spy on members of the Trump campaign. These legal gymnastics gave the prosecution a leg up on Flynn and others by painting them (by virtue of the FARA case) as an agent of a foreign government under section 951 and opened a wide net of investigatory tools not available to them without the FARA case.
Suspicions starting to emerge: The DOJ's failure to enforce FARA violations was intentional.
Not because they ignored the law – but because the DOJ used FARA (or conflated as Section 951) "violations" as a predicate to obtain FISA warrants.
— Techno Fog (@Techno_Fog) May 30, 2019
Powell also continues to hammer home the unusual tactics used by the FBI to box in Flynn in the first place. She recounts the circumstances surrounding the “ambush” interview illustrating how the intent was never about discovering whether or not Flynn said something he shouldn’t have to a Russian ambassador (as they already had the tapes of the conversations, none of which were illegal) but instead to nudge him into a perjury trap. This was from the very beginning a strategic plan to target and isolate Flynn and then take him out. This included then FBI Director Comey’s decision to take advantage of a new administration by sending two agents to meet with Flynn and bypassing the White House Counsel’s office which is a breach of FBI/DOJ Protocol.
Then, FBI Deputy Director McCabe contacted Flynn by telephone in a personal call to set up a meeting with his agents. This was designed to keep Flynn relaxed and unsuspicious of the intent behind the interview or from perhaps contacting counsel. McCabe himself is reported in an article by The Hill as describing the interview as “no big deal” to Flynn serving to mislead him from the fact that he was a target of a criminal investigation.
Then-FBI Deputy Director Andrew McCabe personally contacted Flynn on the second full working day of the Trump administration and asked him to meet with FBI agents, a meeting that McCabe reportedly characterized as no big deal. That should have been Flynn’s first red flag. The FBI doesn’t do ‘no big deal’ interviews.
Powell notes how they strategized the best approach to Flynn and whether or not they could use the news of the Steele Dossier as a predicate for doing so. A group consisting of McCabe, Strozk, Page, FBI General Counsel James Baker and several others met the day before the scheduled interview to strategize how best to question Mr. Flynn without letting on he was the target of a criminal investigation. Powell alleges the FBI was fully aware they had no basis for this investigation and deliberately decided against notifying the DOJ to avoid having the DOJ alert the White House Counsel of their ruse.
They knew what they were doing was wrong. Lisa Page wrote: ‘I can feel my heart beating harder, I’m so stressed about all the ways THIS has the potential to go fully off the rails.’ Strzok replied: ‘I know. I just talked with (REDACTED) , we’re getting together as soon as I get in to finish that write up for Andy [McCabe] this morning. I reminded about how I told Bill [Priestap] and the entire group that we should wait 30 to 60 days after the inauguration to change how we were managing this stuff. As it is, he went ahead, and everything is completely falling off the rails.’
After the interview, Agent Strozk and his yet unnamed partner both agreed Flynn was truthful in his answers and they detected no intention by him to deceive them. Acting Attorney General Sally Yates characterized the interview as “problematic” and that “It was not always clear what the FBI was doing to investigate Flynn.” Just a handful of days later, the FBI with the DOJ authored an internal memo on January 30, 2017 exonerating Flynn of being a so-called Russian Agent, yet the prosecution to this day has failed to turn the full version of this memo over to Flynn or his attorneys.
When McCabe testified under oath to the House Intelligence Committee on December 29, 2017 he admitted that the agents did not believe Flynn was lying to them. However, this rendered the start of a false statement case not getting off on the right foot. This illustrates an intention by the FBI to create a false statement case before a false statement was ever even made. Perhaps it might work like this in the movies, but in the real world what is supposed to happen is a crime occurs before an investigation, not an investigation before a crime.
On Dec. 19, 2017, McCabe told the House Intelligence Committee in sworn testimony: ‘[T]he conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview . . . the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.’ McCabe proceeded to admit to the Committee that ‘the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.’
As if all this were not egregious enough, the manipulation of the 302s from the interview come into view. Sidney Powell alleges that the original 302 produced most immediately following the FBI interview of Flynn has yet to be handed over by the prosecutors. The government attorneys dance around the subject throwing phrases around such as “if it did exist” forcing Powell to hand them a remedy to find it. She reminds them that the FBI’s Sentinel System keeps track of every bit of information and data pertaining to the 302s including the original, any audits or edits, any attempts to destroy the data and any and all metadata related to the original entry. Mr. VanGrack, the government’s prosecutor, instead denies knowledge of the original 302s existence but opines if it did exist the material changes would be negligible. Given the defense’s arguments to the contrary it is suspicious that he would make such a grand assumption about the original 302. However, he did not deny its potential existence in the FBI’s Sentinel System.
Powell goes on to lay out why she believes the 320s were altered in the first place.
We know that on February 10, 2017, McCabe and possibly Strzok went to the White House to visit Vice President Pence. Then news broke asserting that Mr. Flynn had lied to the Vice President and others about his calls with Ambassador Kislyak.
That same night, Lisa Page texted Peter Strzok: ‘[Y]ou need to finalize that asap. I wouldn’t be surprised if following this evening’s events that a request comes in to see it.’ Strzok replied: ‘I’m going back in tonight to do so.’ Page then told Strzok that she ‘gave my edits to Bill to put on your desk.’
We do know that the same evening, Strzok went into the office, picked up Page’s edits, and made changes that any reasonable person would deem material to the 302. He added a definitive statement: ‘FLYNN stated he did not.’ This was in response to whether, on the issue of UN vote, Flynn had asked Kislyak to vote in a particular way. This is materially different from the notes which state Flynn did not recall speaking to Kislyak on the UN vote issue. Another material change was to add the entire phrase: ‘or if KISLYAK described any Russian response to a request by FLYNN’ to which Flynn answered ‘no.’ The notes reflect neither a question nor an answer about a ‘Russian response’ to anything at all. This is what the Surreply characterizes as ‘largely grammatical and stylistic’ edits. (Surreply at 6.) Defendant is entitled to compare Lisa Page’s suggested edits with the changes made by Strzok to determine whether his changes reflected his purported recollection of the event or fabrications suggested by McCabe’s special counsel.
Previously, someone added an entire assertion untethered from either set of notes: ‘The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration.’ Although absent from the notes of both agents, this ‘Russian response’ underpins the alleged crime.10 The government does not even attempt to rebut this issue, because it cannot.
As we look beyond the initial investigation of the FBI and toward the Mueller teams’ involvement, things take yet a darker turn. While the prosecution is happy to tell the tale that the meetings between the Special Counsel’s office and Flynn were cordial and voluntary, we all remember the drama surrounding the charges filed against Flynn by the Special Counsel. His name was dragged through the mud, he was called a traitor, a Russian agent, his family was targeted and attacked by the Special Counsel’s office and the media. What we don’t see reported were the behind the scenes tactics used to trap Mr. Flynn.
In our last update, we touched on the duress Flynn was placed under by Mueller’s team. Found amid the footnotes in the motion, Powell sheds some light on the circumstances leading to the plea.
It is disingenuous to suggest that the proffer sessions were not adversarial when the government had permission to target Mr. Flynn, seized all his electronic devices, targeted his son, and seized his son’s devices. The government fails to mention that, to obtain the plea, it threatened Mr. Flynn with indictment the next day, the indictment of his son who had a new baby, promised him ‘the Manafort treatment,’ and promised to pile on charges sufficient to put him in prison the rest of his life. The short fuse was no doubt motivated by the government’s knowledge, which it did not disclose to Flynn, that the salacious Strzok-Page emails, disclosing their vitriolic hatred of President Trump and his team, the key agents’ affair, and their termination from Mueller’s Special Counsel operation were going to be exposed the very next day. No individual, no matter how innocent, can withstand such pressure, particularly when represented by conflicted defense counsel. The advice a client is given by his lawyer in such fraught circumstances can make all the difference between standing his ground or caving to the immense pressure. Mr. Flynn caved, not because he is guilty, but because of the government’s failure to put its cards on the table, as Brady requires, and its failure to ensure that Mr. Flynn was represented by un-conflicted counsel when he was forced to make that decision.
She also tells us that when the Obstruction case against President Trump was opened, McCabe re-entered Flynn’s 302 into the FBI Sentinel System on May 31, 2017 so that Robert Mueller would have special access to it. It would seem the FBI was still seething over being forced to admit Flynn was not a Russian agent in January and so they made him the first approved target for Mueller to go after and gave him authority to target his son as well. They entered his home, seized his property including phones and computers (which they still have) and as a result of this egregious behavior, in the end Flynn had to sell his home to cover his legal expenses.
In a separate court filing getting lost in the shuffle, Powell also responded to the prosecution’s answer to her demand for the two phones now in the government’s possession that belonged to Joseph Mifsud. She argues that while the prosecution does not even acknowledge being in the possession of the phones, they claim the evidence the phones likely contain is “neither favorable or material” to Flynn’s case. Remarkable how they know so much about items about which they claim no knowledge. Powell provided the identifying serial numbers of the two devices so she may already have an idea of what is on them.
For now, Powell is asking the court to compel the prosecution to finally turn over the documents and items she has outlined in her discovery demands. Although she plans to file a motion to dismiss in the future, she wants the discovery materials to help clear Flynn’s name. She also asks the court to find the prosecution in contempt for their egregious misconduct throughout the case.
In a stunning new development learned just before publishing, Sidney Powell is reporting that Mr. VanGrack notified her by letter that the handwritten notes from FBI Agents Peter Strozk and the other unidentified agent taken during their interview with Michael Flynn, were inexplicably switched. See the letter below:
We will bring you more news on this case when the judge hands down his decision, so stay tuned to Patriots’ Soapbox!