Published Date: May 25th, 2020
U.S. WEAPONIZED SURVEILLANCE, JUDGE SULLIVAN’S APPEALS COURT ORDER, KUDLOW PREDICTS RECORD ECONOMIC REBOUND
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The drip-drip-drip of newly declassified documents related to the Trump-Russia investigation, together with recent reports that a classified leak against former National Security Advisor Michael Flynn might not have come from an unmasking request, leaves little doubt that the Obama administration weaponized federal surveillance laws to target Trump associates and undermine the incoming administration.
The story thus far is complex, but it reveals a disturbing abuse of power by the Obama administration that suggests congressional reform of federal surveillance laws is needed to ensure this never happens again.
The latest declassified document, an email written by former White House National Security Adviser Susan Rice detailing a high-level Oval Office meeting on January 5, 2017, directly implicates then-President Obama and other top officials in the targeting of Flynn, including then-Vice President Joe Biden and fired Federal Bureau of Investigations Director James Comey.
According to Rice’s bizarre email, which she wrote to herself as President Trump was being inaugurated on Jan. 20, 2017, Comey told Obama and Biden he had “some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak,” and that “the level of communication is unusual.” How did Comey know this? Because the FBI had been spying on Flynn as part of a counterintelligence investigation it launched in August 2016.
Flynn’s conversations with the Russian ambassador became national news after someone in the Obama administration illegally leaked to Washington Post columnist David Ignatius, who revealed in a Jan. 12, 2017, column that Flynn had spoken to Kislyak several times on Dec. 29, 2016.
That touched off an effort by Republicans to find out who leaked to the Post. Last week, responding to a request from Sens. Ron Johnson (R-Wis.) and Chuck Grassley (R-Iowa), acting Director of National Intelligence Richard Grenell released a list of former senior Obama administration officials who requested the unmasking of Flynn between Nov. 30, 2016, and Jan. 12, 2017.
Retired Lt. Gen. Michael Flynn and his legal team, led by attorney Sidney Powell, received promising news Thursday from the D.C. Circuit Court of Appeals. In a rare move, a three-judge panel ordered Judge Emmet Sullivan, the presiding judge in the long-running criminal case against Flynn, to respond to Powell’s petition for a writ of mandamus. In that petition, Powell asked the appellate court to order Sullivan to grant the government’s motion to dismiss the criminal charge against Flynn. While Thursday’s order does not guarantee Flynn a win, the signs are hopeful.
To understand why requires some laws plaining, so let’s start with the background and then move to the procedural niceties in play.
On Jan. 24, 2017, just days after Donald Trump’s inauguration as our country’s 45th president, FBI agents Peter Strzok (since fired) and Joe Pientka questioned then-National Security Adviser Flynn, about Flynn’s December 2016 telephone conversations with Russian Ambassador Sergey Kislyak. More than 10 months later, after the appointment of Robert Mueller as special counsel and under threats from Mueller’s team to target his son, Flynn pleaded guilty on Dec. 1, 2017, to making false statements to the FBI agents in violation of Section 1001.
Following his guilty plea, Flynn cooperated extensively with the special counsel’s office. With his cooperation nearly complete, the government informed the presiding judge, Sullivan, that the case was ready to proceed to sentencing. On Dec. 18, 2018, Flynn appeared with his attorneys from the law firm Covington and Burling for sentencing.
Although the government had recommended a sentence of no prison time for Flynn, Sullivan berated Flynn and questioned whether Flynn might have even committed treason. After Sullivan suggested Flynn might see jail time if sentencing proceeded, Flynn acceded to the longtime judge’s suggestion that sentencing wait until his cooperation with the government was complete.
With Powell, the Flynn Case Took a Turn
But then in June 2019, mere weeks after the closing of the special counsel’s office and resignation of Mueller, Flynn fired his Covington and Burling lawyers and hired Powell. After requesting and receiving some delays to familiarize herself with the case file, Powell began shaking things. She filed a motion to compel and for sanctions, claiming the government had withheld material exculpatory evidence.
The lead federal prosecutor, Brandon Van Grack, a holdover from the special counsel’s office, assured the court that all material exculpatory evidence had already been provided to the defense counsel. Sullivan agreed and denied Powell’s motion to compel.
Powell would later file several additional motions, including a motion to dismiss the criminal charge against Flynn based on prosecutorial misconduct. Powell also filed two separate motions for “leave of court,” or permission from the judge for Flynn to withdraw his guilty plea.
Throughout her various motions, Powell exposed several problematic or suspicious circumstances concerning the investigation and prosecution of Flynn. For instance, Powell highlighted how the government had failed to provide the original FBI 302 interview summary. She also exposed several significant changes made to latter iterations of the 302 interview summaries, calling into question the accuracy of the summary form.
The public would later learn that Attorney General William Barr apparently shared some of Powell’s concerns because he appointed an outside U.S. attorney, Missouri-based Jeff Jensen, to conduct a review of the Flynn investigation.
In late April 2020, Powell began seeing the fruits of that investigation, when Jensen turned over documents previously withheld from Flynn’s legal team. Soon after, the public learned of these details when Powell filed the documents with the court, as supplements to her motion to dismiss the charges against Flynn based on egregious prosecutorial misconduct.
Among the material provided to Powell was an FBI closing memorandum, documenting the FBI’s Jan. 4, 2017 decision to close its investigation into Flynn for potential Russia collusion. But text messages provided to Powell revealed that the “7th Floor,” which referred to FBI leadership, had put the brakes on closing the investigation.
A second set of documents Powell received included handwritten notes by then-FBI Director Andrew McCabe and the former assistant director of the FBI Counterintelligence Division, Bill Priestap. Priestap’s handwritten notes proved devastating to those investigating Flynn. “What is our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?” Priestap wrote.
Then in a shocking development one week later, on May 7, 2020, federal prosecutor Van Grack withdrew from the case, and the U.S. attorney filed a motion to dismiss the criminal case against Flynn. In its motion to dismiss, the D.C. U.S. attorney’s office explained that Jensen’s review had uncovered new evidence and that the Department of Justice no longer believed that Flynn’s Jan. 24, 2017 statements to the FBI agents — even if they were false — were material. The purportedly false statements were not material under Section 1001, the government explained, because there was no valid investigative purpose for questioning Flynn about his conversations with the Russian ambassador.