DOJ Files Surreply Response to Flynn Brady Motion – (With a valuable little nugget of a mistake)….

Today the DOJ files their surreply to the game-changing Flynn motion to compel Brady material filed by defense attorney Sidney Powell (full pdf below).  Within the DOJ filing the prosecution generally makes four arguments:

  1. The government had no legal obligation to provide exculpatory Brady material prior to the plea agreement (Nov 30th, 2017).
  2. After the plea agreement the government had no legal obligation to provide exculpatory Brady material that was not directly related to the evidence about the charge of Flynn lying to investigators during the January 24th, 2017, interview.
  3. The government uses odd language to claim a draft of the Flynn interview report (FD-302) does not exist prior to their Feb 10th construct: “Even if an earlier draft of the [302] once existed, there is no reason to believe it would materially differ” from the agents’ notes.  Sounds sketchy, like they know an earlier draft does likely exist.
  4. The government severely understates the conflict of interest created by the DOJ using the leverage of an incorrectly completed FARA submission to pressure the Flynn plea.

Flynn’s attorney Sidney Powell will now be allowed to file a sur-surreply to the position of the DOJ prosecutors.

♦Taking the #4 bullet-point first, the DOJ is being profoundly obtuse.  Flynn’s original defense lawyers (firm: Covington, Kelner, Anthony, and Langton Inc.) were the attorneys who advised Flynn on how to complete the FARA paperwork/filing.  When the DOJ threatened to use the FARA filing as evidence against Flynn, in essence the DOJ was accusing Covington of manufacturing false documentation.

The Covington lawyers held a material interest in the DOJ dropping the FARA aspect to their prosecution; and by extension the Covington lawyers recommending that Flynn accept a plea agreement to remove that legal issue is a profound conflict. The DOJ downplays this conflict despite the DOJ taking copious and careful notes about it during the time they were using the FARA violation to compel the plea deal.

♦On the issues of there not being a pre-Feb 10th 302 report: on its face that seems absurd.  The interview was January 24th, the FBI standard dictates a 302 report to be written as soon as possible (within 24 hours) upon completion of the interview.  The prosecution hides the Page/Strzok texts showing a narrative process under construction:

page strzok texts - feb 10th 302 edits

The 302 was edited, shaped, approved and entered into the system on Feb 11th and Feb 14th.  This was a deliberative process, Andrew McCabe was approving (per “launch 302”) and Lisa Page did some of the edits.

We know there was a deliberative process in place, seemingly all about how to best position the narrative, because we can see the deliberations in text messages between Lisa Page and Peter Strzok: See above/below (note the dates):

The text message conversation above is February 14th, 2017.  The Michael Flynn FD-302 was officially entered into the record on February 15th, 2017, per this version of the FBI FD-302 report released June 6th, 2019:

Oddly, in the reply today which included the DOJ providing the FD-302 as “Exhibit 3“, the DOJ provides another FD-302 report with the entry date February 14th, 2017?   WTF?

In a letter from prosecutor Van Grack to Judge Sullivan last year he said there was only one edit after the date of entry; and that edit took place in May 2017.

Whoopsie, based on what we just outlined above, it would appear Mr. Van Grack was previously lacking candor with Judge Sullivan. I shall digress….

Here is today’s filing from the DOJ:

.

Enjoy your weekend….

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413 Responses to DOJ Files Surreply Response to Flynn Brady Motion – (With a valuable little nugget of a mistake)….

  1. J says:

    And NO ONE in the doj will ever even be charged

    Liked by 11 people

    • anthonydog says:

      I believe those in the DOJ that perpetrated the gross prosecutorial misconduct will pay a heavy price.

      Consider that Judge Emmet G. Sullivan has seen this goat rodeo before…Hidden witnesses, altered and fabricated documents, the destruction of the rule of law— all took place under the Senator Ted Stevens criminal case. The DOJ did not even receive so much as a slap on the wrist then and I fo not believe Judge Sullivan will tolerate the same outrage once again. That there were no consequences for the DOJ under Stevens only gave rise to the corruption in the Flynn case. Sullivan had been led to believe Flynn was guilty of treason by a lying corrupt DOJ.

      Sullivan admonished the prosecution in Stevens and warned that the rule of law “falters” when the prosecution does not respect the rule of law. Imagine what Judge Sullivan is thinking now knowing the criminal malfeasance perpetrated by a prosecution that was involved in sedition and treason … excoriating the prosecution will not be nearly enough as the prosecution’s behavior was criminal. If the rule of law is to stand the judge must mete out consequences— harsh consequences, or the rule of law falters.

      Note that DOJ Assistant U.S. Attorney Deborah Curtis was recused as lead attorney from the Flynn prosecution team.

      I suggest we pray that Judge Sullivan has the will and the intestinal fortitude to do the right thing and is guided by God Almighty. Our nation, our freedom, our Constitution hang in the balance.

      Liked by 17 people

    • erp says:

      New sheriff in town and he’s taking no prisoners.

      Like

      • mike says:

        Show us the executions.

        Like

      • Janus says:

        Gosh, I must have missed the headlines. Who’s been arrested / indicted / prosecuted, of course, other than Paul Manafort and Roger Stone.

        Like

        • Do you think the DOJ teams went to Italy and the Ukraine for vacation? Do think the raid on the Vatican bank, a bank started after WWII by the CIA and Cosa Nostra to launder narcotics and child trafficking proceeds, was a joke? Do the record number of arrests of pedophiles not convince you there’s a real president in DC? Those arrests, international in scope with US involvement like the one just announced in Brazil, include that of Mosad thug Epstein, who Trump’s Cabinet official let skate when he was a DOJ US Attorney in Florida when the closeted, Indonesian Muslim, non-natural born US citizen and CIA controlled asset, Barry Sotero, was running the country into the ground, who just before he resigned from Trump’s Cabinet said Epstein was a foreign intelligence asset. Oh, and Trump gave the sexual deviant sociopath Zionist POS John Bolton the old heave hoe via Twatter on the anniversary of 9/11, a false flag op of the Bush/Cheney/Rumsfeld crew, Israel and Saudi Arabia. You’ll be stunned in the end of this term and even more stunned by what Pres. Trump does when he landslides the criminal DNC into oblivion in 2020.

          Like

    • Jack Schiraldi says:

      You’re right but because all 3 branches are involved – Remember Judge Sullivan replaced Judge Contreras after the Court recused him involuntarily. Why? Good buddies with and was having dinners with Peter Strzok.Uh Oh – Its so much more than a few crimes

      Liked by 2 people

    • D'Arcy says:

      God bless you Sidney Powell ! Piercing the veil, tip of the spear.
      I am a life long liberal. Ya, REALLY.
      I HATE CORRUPTION.. DRAIN THE SWAMP MR. PRESIDENT.
      To you, Gen. Flynn a salute from an old Argyll and Sutherland Highlander. UK
      Um, so where do you two want your monuments? ” My country tis of thee…”
      To America We, the rest, NEED you standing as a RIGHTIOUS NATION.
      May God be with you.

      Like

  2. j'accuse says:

    Given the MOAB Sydney Powell dropped on the govt alleging in much detail, among other heinous acts, a meeting of top FBI & DOJ officials discussing various means of entrapping or otherwise framing Gen Flynn, you’d think Van Grack would have had the common sense to not even file the brief or at most just deny the materials were required to be produced under Brady. Powell unleashed her claims of misconduct in the context of a motion to compel discovery in order to get it on the record, so the government had no duty to respond to respond to them. Any sane prosecutor would have dropped that brief on the AG’s desk and let him or her deal with it, which in a normal world means using govt resources (like the FBI) to investigate to determine if the allegations have merit. If they do then you better run not walk to notify the court and put the case on hold while you figure out how you are going to proceed and to what extent you are required to disclose to the court any false statements made by the government and whether circumstances exist to warrant a dismissal with prejudice.
    Yet Van Grack does the worst thing possible, which is to make numerous statements that can be read as taking an affirmative position by the government such as this: “Without citation or explanation, the defendant intimates that such words were edited out of an earlier draft of the interview report….There is no evidence that that occurred.” He better hope it *didn’t* occur because he not an island of his own but speaks on behalf of the entire government, and by signing the pleading he is personally responsible as a lawyer and officer of the court for the their veracity. He can’t just blithely claim he isn’t himself aware of such evidence, if that what he means by ‘there is not evidence that occurred’ statement means.
    Next he repeatedly. accuses Gen Flynn of lying, not just about the false statements he is being prosecuted for, but regarding numerous other matters not related to the charges and to other people such as the Vice President. That is unprofessional and uncalled for in any criminal case and reveals anger and prejudice against the defendant by the government, which the defense will surely make use of in the future.
    I didn’t know previously that rather than have his agents testify before a grand jury to get an indictment, Van Grack got Gen Flynn to sign the plea agreement first and then filed a criminal information setting forth the charges, presumably at Mueller’s direction but he signed it. In such a high profile case, to not have a grand jury hear evidence and certify the charges is something most prosecutors wouldn’t do because of the possibility of exactly what has happened here — an effort to withdraw the plea which opens up a can of worms if the court grants it and your witnesses have to testify. It’s self preservation because no prosecutor wants to become the target if witnesses change their stories and inevitably claim they always told the truth and it was the prosecutor who perpetrated the fraud.
    For all I know Powell is just spinning more ‘conspiracy theories’ with no basis in fact but I can’t understand why a lawyer representing the US govt could be so casual and at times flippant when a man’s career, livelihood and freedom is at stake. This isn’t some civil case where overpaid lawyers arguing about money are slinging mud at each other’s client. I know nothing about Mr. Van Grack or his background and experience, but if his behavior reflects the culture at DOJ then something has gone terribly wrong because the vast, vast majority of criminal prosecutors across the US take their responsibilities very seriously and are quite aware of the power they enormous power they have been entrusted with. Clinging to legalisms at this point just rubs salt in the wounds of Gen Flynn who was targeted by the very government he served for so long. Everyone now knows the prosecution is corrupt root and branch so who cares if made false statements. He had no obligation to tell these rogue agents anything much less the truth. The damage selfish officials have done to public confidence in the impartiality and fairness of our criminal justice may never be repaired and right now our claims to freedom, equality, due process etc etc are just more hot air. Vladimir Putin was a KGB officer in his younger days so he better than anyone ‘understands’ the priorities of the people behind this and the ‘necessity’ of the action taken. We confirmed to him that we are corrupt phonies he’s been telling his people we are for decades.

    Liked by 35 people

    • trump20162024 says:

      “I can’t understand why a lawyer representing the US govt could be so casual and at times flippant when a man’s career, livelihood and freedom is at stake.”
      . .
      That’s because you aren’t in the corruptocrats’ club.

      Liked by 7 people

    • vexedmi says:

      Some history on Van Grack:
      Harvard law School – 2003-2006
      DOJ – 2010-2014 Trial lawyer
      DOJ – 2014-2015 Counsel of the Assistant Attorney General
      U.S. Attorney Office – 2015-2017 Special Assistant U.S. Attorney
      DOJ – 2017-2019 – Senior Assistant Special Counsel
      DOJ – 2019- present – Chief (FARA)

      Liked by 1 person

    • oodeluph says:

      Powell. Will. Bury. Them.
      And then take them to civil court for the millions of dollars these Stalinist traitors cost General Flynn.

      Liked by 7 people

    • Zippy says:

      “He better hope it *didn’t* occur because he not an island of his own but speaks on behalf of the entire government, and by signing the pleading he is personally responsible as a lawyer and officer of the court for the their veracity.”

      Do you not understand that someone who speaks for the DO”J” damned well KNOWS that neither HE nor his lies will ever be investigated? Doesn’t 1000+ days of the so-called Trump administration without even a single INDICTMENT or the coup perps give you a clue?

      Liked by 2 people

    • jiminCO says:

      There are once powerful people in the DOJ/FBI/SofS who are FORCING the govt lawyer to argue very dangerous positions. the Cabal is nervous and forcing him to do this.

      Liked by 1 person

    • flyboy46 says:

      Thank you for the very informative post from a lawyers perspective. I just stumbled over another site that has an excellent writer by the name of Howell Woltz at the site http://www.pickeringpost.com. Check out HAKLUYTI The guys who tried to take down Trump, and Dead Men Don’t Need Impeachment. He may even have some info Sundance can add to his pile.

      Like

    • foodog says:

      “IANAL nor do I play one on the internet” Joking but serious-
      I agree with your sentiment:
      “I know nothing about Mr. Van Grack or his background and experience, but if his behavior reflects the culture at DOJ then something has gone terribly wrong because the vast, vast majority of criminal prosecutors across the US take their responsibilities very seriously and are quite aware of the power they enormous power they have been entrusted with. Clinging to legalisms at this point just rubs salt in the wounds of Gen Flynn who was targeted by the very government he served for so long. Everyone now knows the prosecution is corrupt root and branch so who cares if made false statements. ”

      As an American citizen and veteran I want to believe and give benefit of doubt to those who have sworn an oath.

      It seems to me as a layman we are at the tea leave reading stage- like haunting SCOTUSblog or other sites where actual appelate lawyers might carefully weigh in to explain convoluted court processes, and we all struggle to divine possible political influences on the judge.

      Based on the fact pattern laid out by Ms Powell, and her past experience, and service to this Nation, I can only say I most sincerely hope and pray that Judge Sullivan hold bimself to the highest standard of honor and integrity. His decision on Stevens, and admission he mispoke calling Flynn a traitor gives me belief in his ability to do so.

      We are at a crux here, and the trust of Americans in Justice at DOJ is at an all-time low.
      I believe the win at all costs mentality that corrupted the 7th floor at FBI HQ and was endemic in Obama DOJ, by design in the radicalization of Civil Rights Division, has been demonstrated by Ms Powells own book, and in Weismanns prosecution of Trump. And might be at heart of Van Gracks motivations.

      Now the question here is, does the Judge see the same, and will he do the right thing.

      Like

    • Road Runner says:

      IIRC, Van Grack was also the one that used sketchy/sleazy methods to gather up all the Trump ‘Transition Team’ emails… Nothing he did/does surprises me…

      Liked by 1 person

  3. lieutenantm says:

    wow. very sharp stuff!

    Liked by 4 people

    • Phil Bacon says:

      Note the FD-302 dated 2/14/2017 submitted Friday does not carry the “Official Record” stamp above the date of entry as does the version dates 2/15/2017.

      So an earlier version existed and a comparison of the content in both shows…..?

      Like

  4. Jerry Joe says:

    I would never attach an ounce of weight to those notes attached as Exhibit #1. They are not notes of someone taking them contemporaneously with an interview; they are not first draft notes of someone sitting down and writing notes of what he remembered being said following an interview, leaving a location, travelling to another location and putting pen to paper. An impossible feat.

    Margins, form, spacing, order, insertions, and penmanship more than confirm this Exhibit is nothing more than a final written draft of what was decided the typewritten 302 should look like. Now unless one of those agents were wearing a wire could those notes ever be considered a first handwritten draft, which would beg the question of why wasn’t its tape just handed over…

    This analysis is consistent with the assertion of Jessie Liu, on the bottom of Page 6 and top of Page 7: that the government has tendered every “draft” in its possession. She cleverly omitted the word “notes” in her brief. Other notes would have been humanly required to create that handwritten draft she attached.

    Minor aside, sure hope the gubmint at least reviewed the signed written waiver Covington obtained from Flynn regarding their actual conflict…

    Liked by 16 people

    • An says:

      IIRC, the FBI has a policy of *not* taping interviews.

      If this makes no damned sense to you, then congrats, you have a brain. I’m convinced that making this an absolute requirement in all FBI interviews is one of many necessary reforms. I believe such a requirement already exists for other police (and if there’s anywhere it does not, this also needs to be reformed).

      Like

      • mickjt says:

        The FBI does NOT want recordings…if they were forced to make them then they couldn’t change notes/documents to frame someone…obviously that is what they have been doing for a long long time…Flynn is just the latest victim!

        Of course we all know that with recordings the questions and answers are ON the record and NO ONE can change that! (recordings need to have a double backup to be sure they ‘don’t get lost’. Given we have hard core criminals inside our govt. this is the least we can demand to hold them accountable. I feel that those that perpetrated this scam on Flynn should get the harshest sentence that is legal! Personally I would buy the ropes and/or bullets for the firing squad and enjoy every second of them getting their ‘reward’!

        Like

    • Bob says:

      What is the rationale for no taped interviews other than it gives the FBI the ability to write anything they want? Every interview should be tape recorded with a stenographer present to keep the FBI honest.

      Like

      • mickjt says:

        But the FBLIE is Honest…Urk,………

        Like

      • plane of the ecliptic says:

        This is the same FBI that is called in to investigate local and State Law Enforcement Agencies for misdeeds. Some of those Agencies get in trouble for, you guessed it, not having recordings/videos to back up their side of the issue. 302s what ya gonna do?
        We are not any different than Mexican Citizens facing the fact that their Government and its Security Services are corrupt.

        Like

  5. Buttercup says:

    No taped interview eh? How convenient for the prosecutors. So they can just write down whatever they want and say it is so.

    Liked by 12 people

  6. noswamp says:

    Barr should step in, but he can’t each State AG is a corrupt bureaucrat onto themselves. And these guys were sure corrupt. Sullivan should throw the book at them.

    Liked by 5 people

    • Don’t forget that this attorney isn’t just a “…State AG (who) is a corrupt bureaucrat…”

      No, Brandon Van Grack is a specifically chosen, highly regarded FBI attorney, hand-selected by Robert S. Mueller III, himself, to comprise the vaunted Mueller Special Counsel Investigation to Determine Trump Campaign Involvement with Russia.

      AG Barr wouldn’t step in and interfere with this debacle for all the gold in Fort Knox. He will, however, sit back and watch this $h!t Show and hope that he will have an opportunity to nail Jesse Lui for her lack of oversight into this steaming mess.

      Liked by 1 person

  7. leftnomore says:

    Watch and Learn, GOP. This is how you fight. Get off of your backs, stop asking for “fairness” and do your own investigating. It takes a woman to show those congress dudes how it’s done. If I hear one more R whine that Schiff isn’t being fair I’m going to lose it.

    Liked by 12 people

    • getitright says:

      I agree completely. Graham et. al need to get there respective crap together or we are going to lose what little faith in justice may exist. This erosion has been going on for decades but seems to be in overdrive currently.

      Liked by 4 people

      • mimbler says:

        I’ve given up on Graham. His failure to do a single thing as chair of his committee has convinced me he is compromised. Whether willingly or unwillingly I don’t know.

        Liked by 1 person

    • Conservative_302 says:

      Amen to that. I can’t stand the whining either. They look like the JV league. Trump despite huge resistance finds a way to get things done. Republicans need to follow his lead. So far they look lost, out of their league, and embarrassing.

      Liked by 2 people

      • MGBSE says:

        EXACTLY!!!
        If Schiff is meeting in secret everyday….Then the Republicans need to openly hold court in the open Halls of Congress EVERYDAY.

        Give a timeline of EVERYTHING the RATS did before, during and after the Election…right up to…but NOT including President Trump’s Ukraine phone call.

        EVERYDAY – 10 points of RAT criminal actions.

        Like

    • Libertybella says:

      Exactly right leftnomore..the whiny ahole Republicans need to find their cojones and start actively and intelligently fighting back..they seem in complete disarray…no coordinated strategy..just complaining all the time….Sidney Powell has shown the way…Lady Justice with a double barrel shot gun….sure wish i could meme😁

      Like

    • JiminCO says:

      unless, of course, the top turtles in the GOP have their own graft skeletons. That’s my bet.

      Like

    • Joemama says:

      It will never happen. We have a uniparty of criminals. The RINOs are just as guilty as the democrats. McConnel’s wife is taking bribes from the Chinese communist party, for instance.

      You can count on less than two hands the politicians in congress that are not criminals. All the rest of them are felons and traitors.

      Like

  8. Newhere says:

    So, in pages 10-11, prosecutors take umbrage at the notion Gen. Flynn’s “lies” weren’t material, because, they claim, they were investigating possible coordination between the Trump campaign and Russian interference in the 2016 election. “It was imperative that the FBI determine whether and why such communications with the Russian ambassador occurred.” Pg. 11.

    Alrighty then. One might be forgiven for taking this statement to mean the FBI did not know “whether and why” such communications occurred. One might also be forgiven for assuming the interest in Flynn had to do with Russian interference.

    Of course, neither is true. Which the prosecution admits, trying to explain away other misconduct.

    In the immediately proceeding pages, prosecutors flaunt that they already had this knowledge, and instead were prompted to run over the WH to interview Flynn because statements from WH officials proved Flynn “lied to other government officials,” a fact they knew only because they knew the entire content of the Kislyak communications.

    Which is it, counselors?

    They pretend not to know what Powell possibly could mean in questioning the factual and legal basis to interview Flynn at all.

    Well one might be forgiven for taking the above explanation to mean that the basis for conducting the interview was when the FBI learned that Flynn “lied” to others in the WH. Let’s set aside for the moment whether it’s the FBI’s job to police executive branch communications, and let’s assume for the moment they were properly authorized to spy, which they weren’t. But setting aside those massive, screaming questions as to proper predication — if the “lying” were the actual prompt, why a need to interview Flynn at all? Interviewing Flynn about the content of his Kislyak call literally *couldn’t* produce evidence about whether he “lied” to other officials; The evidence was the taped call which they already had. That’s all Sally needed for her White Knight run to WH counsel to express her grave worries about Gen. Flynn.

    Of course, in Congressional testimony in the weeks following Flynn’s resignation, Sally Yates gave a totally different explanation: she said the agents were investigating a potential Logan Act violation, having picked up the Kislyak call from what she and Clapper allowed people to assume was incidental collection under FISA (which a Strozk text implies is false).

    So let’s review the record on the factual and legal basis for the interview:

    Ongoing investigation of Trump campaign coordination with Russian interference? If they were looking for evidence of “coordination” they had the best evidence in the taped call. The only thing to be gained would testing Gen. Flynn’s demeanor and forthright-ness — which is entirely silly because they knew Flynn knew they already knew the content of the call from taping it; DOJ already had written a memo concluding Flynn wasn’t coordinating with Russians; and not to mention we are (hopefully) soon to learn the “Russia coordination” investigation was fraudulently predicated in the first place; and also not to mention Flynn was briefing U.S. intelligence on foreign contacts the whole time anyway.

    So Russian coordination? not a legitimate factual basis and legal basis.

    Potential Logan Act violation? Yeah, we never heard that one again after Sally coughed it up in Congressional testimony. It’s never mentioned in DOJ’s filing.

    What about the Turkey agency kerfuffle? Well that’s fallen apart by now, with his associate’s conviction being set aside. And if there were a legitimate reason to investigate Flynn in the first place, it’s beside the point because it has nothing to do with why they interviewed him on Jan. 24.

    So all that’s left is what the prosecution essentially admits on pages 7-8: They knew WH officials were misinformed about whether Flynn talked to Kislyak. To review — there was nothing illegal about him doing the call; and even IF the “Russia” investigation were properly predicated (it wasn’t), they didn’t need to interview Flynn to know what was said. And even IF it were any of NSD’s damn business what one WH official says to another, they didn’t need to interview Flynn to rat him out, because they had the call transcript. Notice, they didn’t ask Flynn, “why did you tell your colleagues you hadn’t talked to Kislyak?” They didn’t ask because they didn’t give a rip, and they didn’t need any proof, either.

    All of which means necessarily that the ONLY reason for the interview — by DOJ’s own admissions — was to create an opportunity for Flynn to mess up in recounting the content of the phone call that they knew was entirely legal, for the purported reason that he’d “lied” to colleagues, which they already had proof of and also haven’t claimed is a crime.

    Liked by 11 people

  9. spinoneone says:

    This is a prima face triple felon: 1) making false statements [in the faux 302 & DOJ filings to Court]; 2) perjury in giving false testimony to the Court; and, 3) obstruction of justice.

    Liked by 6 people

  10. Bulldog84 says:

    Van Grack is either entirely unethical, or he is in way over his head. If you know that your client has withheld or destroyed evidence (in this case, an earlier draft of the 302), and it now appears he either does or has strong reason to believe it happened, you simply do not behave the way he is behaving. If the judge doesn’t see this, he has lost control of his senses.

    I’m afraid that the best Gen. Flynn can hope for at this point is that the judge will set an evidentiary hearing at which Powell can call the agents, Page, and whoever else had knowledge of the 302 drafts. He should get a dismissal; I’m just doubtful he will at this point.

    Like

    • dwpender says:

      Powell hasn’t moved for a dismissal at this point. I agree that Judge Sullivan will not likely grant one NOW. His opinion on the motion to compel, however, will signal one way or another how he views the likelihood that there was gross government misconduct in entrapping Flynn and/or withholding Brady materials. If the signal is affirmative, Powell will then file such a motion, which the Judge would not likely grant without an evidentiary hearing.

      In the event the Judge denies a dismissal motion, are you convinced he would not instead grant a motion to withdraw the plea? If he did, the prosecution would be in a real pickle. Strozk and Pientka are essential witnesses. They cannot be avoided. And Powell will have an opportunity to cross-examine both extensively. Might either or both of these “star witnesses” invoke the 5th? (I also would be very interested to learn how exactly the Government intends to prove the authenticity of the Kislyak recording without compromising underlying details about how it was obtained — which the Government would be very loath to expose.)

      Liked by 2 people

      • Barnestormer says:

        Flynn has twice rejected the opportunity to withdraw his plea, which if granted would (theoretically at least) expose him to a trial beyond the single count of lying to the FBI. The defense would not be without its own “pickles” by maneuvring toward a trial.

        To this point Sidney Powell’s strategy appears to have been to mount an “egregious misconduct” case for sua sponte dismissal, or to create enough risk to the prosecution (her motion to compel also moved to show cause for contempt) that the government would itself move to dismiss.

        Meanwhile, it’s not clear that all defense cards are on the table. Powell has intimated as much in public statements, the Mifsud phones have already drawn a defense reply in advance of next week’s filing deadline, and there’s this intriguing hanging 302 chad:

        The prosecution’s Nov. 1 sur…rebuttal contained a footnote 2, which asserted that, with no legal obligation to do so, on Nov. 22, 2017, it supplied the defense with “the FBI report for the defendant’s January 24 interview.”

        Meaning that after the fourth of five “voluntary interviews” with Flynn, the prosecution charitably produced some version of the Jan. 24 302s (AKA Government’s Exhibit 1 if there’s a trial) and conducts the last of five interviews a week later on Nov. 29, whereupon Flynn signs a plea agreement on Nov. 30, and enters a guilty plea on Dec. 1.

        (Side note to the government’s argument that Flynn’s misstatements were material to their
        “criminal investigation.” Really? Until the Weissmann/Mueller do-over, they seemed pretty ho-hum to the FBI under the counterintelligence investigation known as Crossfire Hurricane. Wonder what changed.)

        Liked by 1 person

        • dwpender says:

          I would agree that ordinarily there would be risks to a defendant who successfully withdrew a plea. With the FARA prosecution failure, it is my understanding that that avenue is now foreclosed. What else does the Government have? If they choose to pursue anything Flynn did while with the Trump campaign, transition or Administration, the prosecutors would again face the likelihood of seriously tainted “star” witnesses, plus the problems associated with proving how the Government acquired its critical “evidence.”

          One other consideration may weigh on Flynn’s deliberations. After Powell started filing in earnest, POTUS, who has full pardon power, tweeted several weeks ago words to the effect that “Michael Flynn was set up.” President Trump had never gone quite that far before in his expressions of sympathy for Flynn.

          Like

          • Barnestormer says:

            Isn’t Rafiekian’s case still in limbo, pending a DOJ decision re appeal? Or am I behind the news? Here’s a quote from Reuters following Judge Trenga’s decision tossing the conviction:

            Trenga said if a federal appeals court found enough evidence to sustain Rafiekian’s conviction, he would grant a new trial, citing concern about his own jury instructions. [My emphasis]

            Like

        • mickjt says:

          I think you’re right, I’ll phrase it another way…Ms. Powell has the govt. thugs by the throat and she is slowly squeezing. They know that because their actual case is full of holes. Their reply to her pleadings are just more DOJ and FBLIE BS. I think she is playing super hardball and knows more than the DOJ and FBLIE thinks she does…Sundances exposure of Stroke (what he’s about to have) and Page is surely in Ms. Powell’s back up material. To the DOJ, FBLIE lawyers, this is a cat and mouse game. Sadly they think that but Defense attorneys know it’s life or death.

          The other thing that has some weight is that Ms. Powell has written positively about Judge Sullivan taking care of the Senator Stephens case and he knows that. Sad he didn’t put all the crooked lawyers in PRISON…Now is your chance to fix that mistake Judge. If you don’t we’ll know for sure you’re part of the Deep State!

          Like

  11. Judge Sullivan should have recused himself after his outburst against Flynn in open court. His career should have come to an end, in disgrace.

    But then, nothing that “should” have happened HAS happened, to date. Until Sidney Powell. And what should happen now is that her efforts should kick a wall-sized hole in the firewall protecting Obama/Soetoro himself, because that’s who to blame. When his human tools exhibit unprofessional, personal vindictiveness against their victims, it is his unprofessional, personal vindictiveness being given expression by those suborned incompetents. Every one unworthy of their positions of power or authority, no matter what level of power or authority, from a CIA spy in the White House to the ex-President himself.

    Liked by 4 people

    • doofusdawg says:

      Sidney should threaten to withdraw the guilty plea and demand a jury trial. She should then provide a list of witnesses she will be calling to be deposed… pretty much everyone in the previous administration with no exceptions. The doj will drop the case.

      Liked by 3 people

      • William H Gilkerson says:

        That is exactly what she is going to do if Sullivan does not rule in her favor. And he knows it.

        Like

      • NC Nana says:

        Dawg –

        While I want this to be over for General Flynn, the idea of deposing the previous administration has a strong appeal. It could even be considered winning. – Nah, General Flynn and his family deserve a break. Although depositions had a certain ring.

        When this is all said and done: Sidney Powell for the Supreme Court!

        Liked by 2 people

        • foodog says:

          +1. “The process is the punishment, and discovery is a b1tch”

          Gen Flynn is the patriot standing up in the storm, un – bowed.
          That costs him, and I hear Powell has discounted her fees, making her in some respects a pro-bono hero for Justice, too.

          If you are frustrated as I, not feeling like words here do much except to convey our thanks to Gen Flynn and Ms Powell for honoring their Oaths, then yu can hit the donation site for Flynn so h is family is not bankrupted for life, in addition to his Service.

          https://mikeflynndefensefund.org

          Mods apologies if I break the rules, posting that link, feel free to reformat of course.

          Liked by 3 people

      • John55 says:

        >>”Sidney should threaten to withdraw the guilty plea and demand a jury trial. ”

        A jury trial in DC? It’s a foregone conclusion that the verdict will be “guilty” for whatever charges the goverment seeks to bring against Flynn. The jury will be drawn from the sort of people who booed President Trump at the Washington baseball game a few days ago.

        Like

  12. Tim says:

    Step back and look at the “forest” not the tree(s). What is forming is not only that General Flynn is innocent. This is conspiricy to obstruct justice. aka RICO

    Tic tok the Keystone is about to be placed. Almost time to reset those clocks.💥💥💥

    No federal budget and best job market in 60 years. What a great time to trim the Federal payroll. 50% would be a good start, not all at once but over a couple years. Say >20,000 a month.

    Show the corruption, than slash and burn.

    Liked by 1 person

  13. Zy says:

    Judge Sullivan has DC in his blood. He was born and raised there. He’s served on the bench for years there, Is there any possibility that he can go against his DNA?

    Like

  14. Flight93Gal says:

    I always enjoy reading SD and especially RISTVAN for his legal interpretations. In “lurking Lawyer’s” most recent post, one comment caught my eye.

    RISTVAN claims Judge Sullivan will “severely” sanction Van Grack.

    Like many here…I remain curious on the definition and meaning of “severely”.

    Romney as “severely” conservative anyone?

    Liked by 3 people

    • foodog says:

      +1. This reminds me of haunting some 2A sites waiting on Circuit or SCOTUS decisions, trying to parse legal explanations, and sift out the noise.
      If someone posting here has actual experience in appearing in similar courts, similar law, but wishes to remain anonymous for professiinal reasons, it would help us noobs to know, somehow, of that extra expertice, in order to give it more weight-
      And entrusting oouselves and others commenting to respect that by NOT asking, to “out” you, jokingly well meant or otherwise.

      Like

  15. Den says:

    Where is Barr with all of this?

    Like

    • Leaving says:

      I am persuaded by the arguments that Barr has to keep this at arms length to prevent giving ammunition to the other side. Were he to intervene, there would be calls of obstruction and bias.

      But maybe he’s just a bondo guy

      Liked by 1 person

    • Joemama says:

      Barr doesn’t need to do anything. Heads Flynn/Powell win, tails Van Grack loses.

      By stepping back, Barr doesn’t give the cultural marxist media the ability to throw up a smokescreen.

      Like

  16. Den says:

    Has anybody seen this?

    Like

  17. jbrickley says:

    Sydney now has the opportunity to respond to this DOJ filing. She’s got a lot more to lay down on them. Get ready for the nuclear strike. This is going to be so very good!

    Like

  18. R J says:

    The General spent his whole life in the Army for this?Why would anyone want to be a lifer in the army or any other branch and be treated like this man has?Trump is being treated the same way If you are not a dem/communist this is what you can except.Goes to show that there damn sure is a double standard in that stik hole town Swamp City.It is no wonder there is talk of another civil war.

    Liked by 1 person

  19. The second we have an official judicial (Flynn) or administrative (Horowitz) finding that there was the slightest whiff of prosecutorial and/or investigative misconduct, the President ought to issue pardons for everyone who stands “convicted” or still faces legal jeopardy as a result of the Russian Collusion / Mueller / SpyGate operations (I would commute Manafort’s sentence, rather than pardon).

    It will be the right thing to do and I think the President will do it.

    Let the democrat left squeal. That will only draw more attention to the workings of the failed coup.

    Liked by 1 person

  20. Everett Miller says:

    It’s starting to look like Trump and Pence, along with Flynn, saw the con and “played [them] along” to set the long-con trap. No other explanation for Flynn pleading “guilty” when he knew, and they all knew, that he wasn’t.
    S. Powell is brilliant and on a mission. She has the corrupt DOJ in her sights for decades, and is now getting her chance to spring her trap, and they are (corrupt incompetent treasonous fools) falling for it.
    Thank God for VSG DJT POTUS

    Like

  21. Dan says:

    I wouldn’t start planning the burning of anyone at the stake…..Powell will want a plea withdrawal first… Judge HAS to grant that….. On second thought maybe DOJ offers Flynn a much better deal and watch this go away….. Time served…..
    For the red meaters, which I am one, Sidney Powell is not gonna embarrass the Judge, DOJ knows it can no longer make a fool of the Judge….and the case gets closed on a no lo plea deal. Powell has enough leverage to not let it allowed to be sealed either….. Flynn set free….with absolutely NO HEADLINES just the same..excerpt FOX….. Nancy will then have some thinkin to do…..

    Like

  22. Sharpshorts says:

    “Whoopsie, based on what we just outlined above, it would appear Mr. Van Grack was previously lacking candor with Judge Sullivan”

    You would think Flynn’s team would catch it too but just in case they did not (because they are too close to the action to see it) it’s great that things like this are pointed out… well done sundance!

    Like

  23. foodog says:

    Once again, many thanks and a deep bow of respect to Sundance for his work, and to his mods for curating this unique space where readers can come for facts and logic, to discuss for understanding.

    That allows readers and contributors with deep expert understanding, to also weigh in with information and explanatons, like on the !egal process, that they might otherwise be loath to do so.

    “Pearls before swine” at so many other places, like the MSM agitprop outlets over run with trolls and “moderated” (Pravda on the Potomac as Izvestia on the Hudson come to mind…).

    This will take time, and patience, and more popcorn!

    Like

  24. cantcforest says:

    Thank you Sundance, ristvan, and fellow treepers, You’ve made my week.

    Liked by 1 person

  25. Hanuman says:

    Blogger narciso said…
    vindman, set general flynns trip to Moscow, according to sources, so that halper could set up the tie with lokhova, a year later
    _____&&
    Comment on Althouse today.

    Hope Sundance can expand.

    Like

  26. foodog says:

    Anyone else like me, a layman skimming but just now digging in deeper on this,

    for background here is a great interview of Ms Powell by Mark Levin:

    And a good explanation of Ms Powells motion, by Federalist:
    https://thefederalist.com/2019/09/12/sidney-powells-latest-motion-michael-flynns-case-russiagate-bombshell/

    Like

    • foodog says:

      “Here there’s an interesting twist: Powell seems poised to also argue that the 40 pieces of evidence requested are exculpatory (and thus Brady material), because they will show that “the entire prosecution should be dismissed for egregious government misconduct and long-time suppression of Brady material.”

      The law is clear that, in extreme cases, a court can dismiss criminal charges based on egregious prosecutorial misconduct. What is unclear, however, is whether Brady requires the government to disclose evidence unrelated to the charged offense that points to broader prosecutorial or government misconduct. That is an issue of first impression that Judge Sullivan will have to address.”

      And

      Whether Sullivan will agree with Powell won’t be known for another month or more, but in the meantime, her filings are exposing the depth of the deep state and the evidence that does (or should) exist that has yet to reach the public—evidence that Attorney General William Barr had best be already reviewing! ”

      ~ Margot Cleveland, Federalist

      Liked by 1 person

  27. foodog says:

    And the latest ‘splainer from the Federalist, by Margot Cleveland:

    https://thefederalist.com/2019/10/30/judge-tells-government-to-respond-to-allegations-it-hid-evidence-from-michael-flynns-legal-team/

    ” But that Judge Sullivan did not limit the additional briefing to specific Brady issues, but instead directed the government to respond broadly to any “new relief, claims, arguments, and information,” suggests the long-time federal judge’s concern has been piqued by what he’s read so far.”

    Like

  28. MGBSE says:

    Stevens was innocent…charged with bogus crimes…to influence an election…Stevens lost – mission accomplished – AND died before the bogus charges were dismissed and he was exonerated….as per Harry Reid – “it worked”.

    Sullivan knew how corrupt and evil the players who manufactured the attack against Stevens’ were AND are…he spoke some words…but he took NO action against ANY of the actual criminals.

    I expect more of the same from Sullivan.

    Liked by 1 person

  29. Stephen Grabe says:

    i would say the BIGGEST reveal was the doj confirming it was in fact given the 2 blackberrys the federal govt issued that RUSSIAN agent, josef mifsud—the guy who was photographed with a hig ranking mi-6 official [claire smith] at a training session for italian intelligence agents…..

    Like

    • Docloxvio says:

      It is my understanding that the canard about Mifsud being a Russian agent was introduced into the soup in an attempt to justify the start of ‘Crossfire Hurricane’ . Perhaps you forgot to put quotation marks around RUSSIAN.

      Like

      • E, ROBOT says:

        New York Times Crossword Puzzle Yesterday, November 16, 2019

        16 Down > Clue: 2016 Election Meddlers > RUSSIAN TROLLS.

        Also no quotation marks.

        There are very often lefty politics inserted into the puzzles. I can usually ignore them, but this one be the one that ends my lifelong habit. I started doing these puzzles at age 14, 71 years ago and I will miss them, but enough is enough.

        Like

        • Docloxvio says:

          The salient questions are ‘Who is Azra Turk’ and ‘Who were her masters’. Discover the answers to those questions and you will find the keys to unlock the whole mystery.

          Like

  30. stylin19 says:

    Re: #1. Judge Sullivan issued a brady order 02/16/2018.
    I think the Feds are hosed. This judge does not like his orders to be half-assed.
    You can find the order here: https://www.courtlistener.com/recap/gov.uscourts.dcd.191592/gov.uscourts.dcd.191592.20.0_4.pdf

    “Accordingly, the Court, sua sponte, directs the government
    to produce to defendant in a timely manner any evidence in its
    possession that is favorable to defendant and material either to
    defendant’s guilt or punishment. This government responsibility
    includes producing, during plea negotiations, any exculpatory

    evidence in the government’s possession.1 The government is
    further directed to produce all discoverable evidence in a
    readily usable form. For example, the government must produce
    documents as they are kept in the usual course of business or
    must organize and label them clearly. The government must also
    produce electronically-stored information in a form in which it
    is ordinarily maintained unless the form is not readily usable,
    in which case the government is directed to produce it in a
    readily-usable form. If the information already exists or was
    memorialized in a tangible format, …

    Liked by 1 person

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