“Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested.”

Thus begins The Trial by Franz Kafka, one of the most frightening of all dystopian novels. This novel foretold the nightmare which surely follows from the totalitarian takeover of all aspects of life including, in this case, the legal system and the Courts. It is one of many such tales from the chamber of horrors which make up this genre, such as, for only one example, Orwell’s 1984, which cause us to express thoughts like “it Couldn’t Happen Here”, which, as it happens, is the title of another novel of this same kind, by Sinclair Lewis. His novel is said to be roughly based on the career of “The Kingfish”, Huey Long, of our home state, and we can assure you Gov. Long could and did, happen in the Great State of Louisiana. Actually, one might say “it” happened twice, as his younger brother followed him later in the Governor’s office.

It couldn’t happen here? Try telling that to Lt. Gen. Michael Flynn, U.S.Army (Ret’d), who served his country in uniform for 33 years, 5 of which were inactive combat underarms. At the very height of an already brilliant career and a lifetime of accomplishments, he is sitting in his office in the White House as the newly designated National Security Adviser when he is visited by two agents of the FBI, one of whom is straight out of Kafka, the grotesquely detestable Peter Sztrok, who just happened to be in the neighborhood and thought they would “drop-in” for a friendly, “relaxed”, “jocular” chat. This visit, following a “friendly” phone call from then-Assistant Director McCabe, prompts one of the many questions which arise from this whole malodorous episode — how does one just drop in for a visit to someone in the White House? Finding him to be most welcoming and friendly, even giving them a tour of his area of the White House, they “chat him up” to try to trick him into lying about whether or not he made a call to the Russian Ambassador about the subject of sanctions imposed by the previous administration, not the most challenging task for experienced lawyers and FBI agents, considering that they had the transcript of all the calls on their screens the whole time.

What follows will be a detailed discussion of the story of the disgraceful entrapment of Gen. Flynn by some of the most unsavory lawyers ever to “serve” the United States Department of Justice, drawn from the language of briefs filed by the General’s new counsel, Sidney Powell and her obviously extraordinarily talented team. However, a prefatory note is definitely in order to explain, to the extent possible, the mindset of the author of this discussion. That mindset is one of a person who practiced law– as a trial lawyer– for well over one-half a Century, one who reveres our Rule of Law and the Court system it serves. I have filed many pleadings, documents, memoranda, briefs, petitions, complaints, etc., and I mention that for no other reason than to emphasize that one learns by experience to be very careful in the use of language when writing for a Court. A failure to take the proper level of care can be very costly in terms of opprobrium from the Court and can get expensive in actual terms if followed by the imposition of monetary sanctions for making irresponsible and unprovable claims. I set forth this material in order to demonstrate my belief that while some of Ms. Powell’s claims may seem at times to “push the envelope”, I do not believe she, a lawyer with as unblemished a reputation as a federal appellate practitioner can possibly have, would make any of these claims unless she knew she could prove them. As an examination of the exhibits, she attached to her most recent filing shows she has more than ample ammunition to back up those claims.

The legal basis for Ms. Powell’s Motion to Compel the Government to produce items that should have been produced long before Gen. Flynn agreed to plead guilty is a 1963 Supreme Court decision entitled Brady v. Maryland. It requires the government o produce:

” … all evidence “material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87(1963). Because the government is supposed to pursue justice—not merely convictions—its
responsibility to produce Brady material is a grave one, its scope wide-ranging, and its duration
ongoing. Indeed, this Court has entered both an initial Standing Order to produce Brady material,
on December 12, 2017, and an updated Order on February 16, 2018, making it clear to the
government that its duty to produce exculpatory evidence exists independently of Mr. Flynn’s
guilty plea, and that that duty has not expired.”

The above language specifically notes the special attention paid by this particular Judge to Brady in view of the gross misconduct of government prosecutors in the case of Sen. Ted Stevens, over which this Judge presided. That case, and its corrupt prosecution, is one of the main topics of Ms. Powell’s excellent book, Licensed to Lie.

In her brief filed September 11, 2019, she reiterates that since signing on as Gen. Flynn’s attorney she has requested a number of specifically described documents only to be met by the refusal of prosecutors who “exude arrogance”. Following is the list of documents which I note should have been given much wider attention by a fair and professional press, if only we still had one:

“1. A letter delivered by the British Embassy to the incoming National Security team after
Donald Trump’s election, and to outgoing National Security Advisor Susan Rice (the letter apparently disavows former British Secret Service Agent Christopher Steele,
calls his credibility into question, and declares him untrustworthy).
2. The original draft of Mr. Flynn’s 302 and 1A-file, and any FBI document that
identifies everyone who had possession of it (parts of which may have been leaked to
the press, but the full original has never been produced). This would include
information given to Deputy Attorney General Sally Yates on January 24 and 25,
2017.
3. All documents, notes, information, FBI 302s, or testimony regarding Nellie Ohr’s
research on Mr. Flynn and any information about transmitting it to the DOJ, CIA, or
FBI.
4. All payments, notes, memos, correspondence, and instructions by and between the
FBI, CIA, or DOD with Stefan Halper—going back as far as 2014—regarding
Michael Flynn, Svetlana Lokhova, Mr. Richard Dearlove (of MI6), and Professor
Christopher Andrew (connected with MI5) and Halper’s compensation through the
DOD Office of Net Assessment as evidenced by the whistleblower complaint of Adam
Lovinger, addressed in our brief. This includes David Shedd (former Deputy Director
of DIA) and Mike Vickers, who were CIA officers; James H. Baker; former DIA
Director LTG Stewart; former DIA Deputy Director Doug Wise; and the DIA Director
of Operations (DOD). This should also include any communications or
correspondence of any type arising from the investigation or alleged concerns about
Mr. Flynn that contained a copy to (as a “cc” or “bcc”) or was addressed directly to the
DNI James Clapper and his senior staff; to CIA Director Brennan and his senior staff;
or to FBI Director Comey, his Deputy Andrew McCabe and senior staff.
5. The Flynn 302 dated January 19, 2017, mentioned in the Mueller Report.
6. All and unredacted Page-Strzok text messages. Mr. Van Grack’s October 4, 2018,
letter asserts: “To the extent the text messages appear to be incomplete or contain gaps,
we do not possess additional messages that appear to fill such gaps.” The government
should be compelled to identify to whom “we” refers, where the originals are, and
whether any of the gaps have been filled or accounted for.
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 existence of these earlier investigations was disclosed in the
Mueller Report; see Vol. II at pp. 24, 26.)
8. All transcripts, recordings, notes, correspondence, and 302s of any interactions with
human sources or “OCONUS lures” tasked against Mr. Flynn since he left DIA in
2014.
Case 1:17-cr-00232-EGS Document 111 Filed 09/11/19 Page 4 of 14
5
9. The unredacted Page-Strzok text messages as well as text messages, emails and other
electronic communications to, from, or between Andrew McCabe, James Comey, Rod
Rosenstein, Bruce Ohr, Nellie Ohr, John Carlin, Aaron Rouse, Carl Ghattas, Andrew
Weissmann, Tashina Gauhar, Michael Steinbach, , and Zainab Ahmad,
regarding Mr. Flynn or the FISA applications or any surveillance (legal or illegal) that
would have reached Mr. Flynn’s communications.
10. All evidence concerning notification by the Inspector General of the DOJ to the
Special Counsel of the Strzok-Page text messages, including the actual text of any
messages given to the Special Counsel, and the dates on which they were given.
Although the Inspector General notified Special Counsel of the tens of thousands of
text messages between Peter Strzok and Lisa Page no later than July 2017—the
prosecutors did not produce a single text message to the defense until March 13, 2018.
11. All evidence of press contacts between the Special Counsel Office, including Andrew
Weissmann, Ms. Ahmad, and Mr. Van Grack from the departure of Peter Strzok from
Special Counsel team until December 8, 2017, regarding Mr. Flynn.
12. Unredacted copies of all memos created by or other communications from James
Comey that mention or deal with any investigation, surveillance, FISA applications,
interviews, or use of a confidential human source or “OCONUS lures” against Mr.
Flynn.
13. An unredacted copy of all of James Comey’s testimony before any Congressional
committees.
14. The James Comey 302 for November 15, 2017, and all Comey 302s that bear on or
mention Mr. Flynn.
15. Notes and documents of any kind dealing with any briefings that Mr. Flynn provided
to DIA after he left the government.
16. Any information, including recordings or 302s, about Joseph Mifsud’s presence and
involvement in engaging or reporting on Mr. Flynn and Mifsud’s presence at the
Russia Today dinner in Moscow on December 17, 2015.
17. All notes, memoranda, 302s, and other information about the McCabe-Strzok meeting
or meetings with Vice President-Elect or Vice President Pence (these meetings were
referenced in the Mueller Report at Vol II, p. 34).
18. All Mary McCord 302s or interviews, including when she knew that Mr. Flynn did
not have “a clandestine relationship with Russia.”
Case 1:17-cr-00232-EGS Document 111 Filed 09/11/19 Page 5 of 14
6
19. Any Sally Yates 302s or other notes that concern Mr. Flynn, including treatment of her
meetings with FBI Agents on January 24 and 25, 2017, her meetings with anyone in
the White House, and the draft 302 of the Flynn interview on January 24 she reviewed
or was read into.
20. An internal DOJ document dated January 30, 2017, in which the FBI exonerated Mr.
Flynn of being “an agent of Russia.”
21. All information provided by Kathleen Kavalec at the Department of State to the FBI
regarding Christopher Steele prior to the first FISA application.
22. Any and all evidence that during a senior-attended FBI meeting or video conference,
Andrew McCabe said “First we [Redacted] Flynn, then we [Redacted] Trump,” or words to that
effect.
23. The two-page Electronic Communication (EC) that allegedly began the “Russia
Collusion” investigation.
24. All information that underlies the several FISA applications, including any
information showing that any of the assertions in the applications were false,
unverified, or unverifiable.
25. All documents, notes, information, FBI 302s, or testimony regarding any debriefing
that Bruce Ohr gave to anyone in the FBI or Department of Justice regarding
Christopher Steele.
26. Testimony, interviews, 302s, notes of interviews of all persons who signed FISA
applications regarding Mr. Flynn or anyone that would have reached Mr. Flynn’s
communications, without regard to whether those applications were approved or
rejected.
27. All FISA applications since 2015 related to the Russia matter, whether approved or
rejected, which involve Mr. Flynn or reached his communications with anyone.
28. Information identifying reporters paid by Fusion GPS and/or the Penn Quarter group
to push “Russia Collusion,” communications regarding any stories about Mr. Flynn,
and any testimony or statements about how the reporters were used by the government
regarding Mr. Flynn.
29. FBI 302s of KT McFarland, notes of interviews of her or her own notes, and text
messages with Mr. Flynn from approximately December 27, 2016, until Flynn’s
resignation.
Case 1:17-cr-00232-EGS Document 111 Filed 09/11/19 Page 6 of 14
7
30. Any information regarding the SCO’s and DOJ’s destruction of the cell phones of
Peter Strzok and Lisa Page (after being advised of the thousands of text messages that
evidenced their bias) that has been classified or otherwise not available to the public
from the published Inspector General Report.
31. Any information regarding eradication of cell phone data,
texts, emails, or other information belonging to Peter Strzok and Lisa Page that created
the “gap” identified by the IG.
32. Information about any parts of any polygraph examinations failed by Peter Strzok after
Mr. Flynn was first the subject of any FBI investigation—authorized or unauthorized.
33. Brady or Giglio material newly discovered by the government (and by the Inspector
General in his separate investigations) in the last two years.
34. A full unredacted and copies of the recordings of Mr. Flynn’s calls with Ambassador
Kislyak or anyone else that were reviewed or used in any way by the FBI or SCO in its
evaluation of charges against Mr. Flynn.
35. All FBI 302s, notes, memoranda of James Clapper regarding Mr. Flynn, and the cell
phone and home phone records of Mr. Clapper and David Ignatius between December
5, 2016, and February 24, 2017.
Although not previously requested, the government should be compelled to produce:
36. Unredacted scope memos written for the Special Counsel and any requests by Special
Counsel that mention Mr. Flynn or his son.
37. All FBI 302s or any notes of interviews of David Ignatius or any other reporter
regarding the publication of information concerning Mr. Flynn and/or the reporters’
contacts with James Clapper, Andrew McCabe, John Brennan, Michael Kortan, or
anyone in the FBI, DNI, DOD, DOJ, or CIA regarding Mr. Flynn.
38. FBI 302s and interview notes of Jim Woolsey, including notes by SCO members of
conversations with Woolsey about Mr. Flynn, Flynn Intel Group, the Turkey project,
and his separate meeting with officials of Turkey after the meeting that was the subject
of the FIG FARA filing.
39. All communications between Mr. David Laufman, Ms. Heather Hunt and any other
member of the National Security Division regarding the FARA registration for Mr.
Flynn and FIG and notes, reports or recordings of their interaction with Covington &
Burling with regards to the filing and its contents. See Def.’s Resp. to the Ct.’s Order
of July 9 & Gov.’s Filing of July 10, Ex. D, July 11, 2019, No. 17-232-EGS.
Case 1:17-cr-00232-EGS Document 111 Filed 09/11/19 Page 7 of 14
8
40. Unredacted notes of the and Strzok from the interview of Mr. Flynn on
January 24, 2017.

In a time when we are met almost daily with claims that a new “bombshell” has just “exploded” onto the scene, usually with the editorial pronouncement that this one is bound to be “the one which puts the final nail in the coffin of the President and his entire administration, every now and then something actually qualifies for that description, and Ms. Powell’s brief of October 25, 2019, definitely qualifies as explosive. The title of a very good analysis by the highly qualified and careful writer Margot Cleveland in The Federalist sums up the feeling of many observers, including this author, “Sidney Powell Drops Bombshell Showing How The FBI Trapped Michael Flynn“, and offers a good summary of the thrust of this most recent filing:

“While the briefing at issue concerns Powell’s motion to compel the government to hand over evidence required by Brady and presiding Judge Emmett Sullivan’s standing order, Powell’s 37-page brief pivots between showcasing the prosecution’s penchant for withholding evidence and exposing significant new evidence the defense team uncovered that establishes a concerted effort to entrap Flynn. Along the way, Powell drops half-a-dozen problems with Flynn’s plea and an equal number of justifications for outright dismissal of the criminal charges against Flynn.

What is most striking, though, is the timeline Powell pieced together from publicly reported text messages withheld from the defense team and excerpts from documents still sealed from public view. The sequence Powell lays out shows that a team of “high-ranking FBI officials orchestrated an ambush-interview of the new president’s National Security Advisor, not for the purpose of discovering any evidence of criminal activity—they already had tapes of all the relevant conversations about which they questioned Mr. Flynn—but for the purpose of trapping him into making statements they could allege as false.”

Reading this entire brief — and then re-reading parts of it several times in order to be sure one has read what one thinks he has read — leaves the reader in a state of dumbfounded shock at the knowledge that “This Could and Did Happen Here”, with apologies to Sinclair Lewis. Obviously, I am not the only one to come away with that overall reaction of something approaching nausea as several commentators I have found to be reliable journalists, I should hasten to add, of the old school when journalists were actually honest, have uniformly described similar conclusions. One such commentator is John Hinderaker of PowerlineBlog.com, who states that Ms. Powell is “uncovering corruption in the FBI and the Department of Justice that, she credibly alleges, included the framing of General Flynn.” He continues:

Is that too strong? I don’t think so. Yesterday Powell filed a reply brief in support of her motion to compel the production of more exculpating material by the prosecution, and to hold the prosecutors in contempt of court. Her recitation, which relies in part on text messages that I take it have come to light recently, makes a compelling case of FBI and prosecutorial misconduct. The reply brief is embedded below; I encourage you to read it in its entirety.

Powell’s most explosive charge is that the FBI falsified the Form 302 that recorded the content of its agents’ interview with Flynn in order to set him up for prosecution:

On February 10, 2017, the news broke—attributed to “senior intelligence officials”—that Mr. Flynn had discussed sanctions with Ambassador Kislyak, contrary to what Vice President Pence had said on television previously. Overnight, the most important substantive changes were made to the Flynn 302. Those changes added an unequivocal statement that “FLYNN stated he did not”—in response to whether Mr. Flynn had asked Kislyak to vote in a certain manner or slow down the UN vote. This is a deceptive manipulation because, as the notes of the agents show, Mr. Flynn was not even sure he had spoken to Russia/Kislyak on this issue. He had talked to dozens of countries. Exs. 9, 10, 11.

Second, they added: “or if KISLYAK described any Russian response to a request by FLYNN.” That question and answer do not appear in the notes, yet it was made into a criminal offense. The typed version of the highly unusual “deliberative” 302 by that date already included an entire section from whole cloth that also serves as a criminal charge in the Information and purported factual basis regarding “Russia’s response” to any request by Flynn. The draft also shows that the agents moved a sentence to make it seem to be an answer to a question it was not.

If this is correct, the criminal complaint against Flynn should indeed be dismissed, and various people now or formerly at the FBI should face criminal prosecution.

As I have already probably waded far too deeply “into the weeds” for many, I will resist the temptation to detail some of the additional claims made in this brief, and the temptation is, I admit, strong in view of the astonishing nature of much of the conduct and the corruption it reveals, but will close with a high recommendation that, whether one is a lawyer or not, the entire brief of October 25, 2019, be read in its entirety.

However, I must note a Court Order entered only yesterday, October 28, 2019, which may signal the distinct possibility that the Court itself may deliver the final, and biggest, “bombshell” of all. In his brief Order of yesterday, the Court said it was cancelling a November hearing it had earlier scheduled “in view of the parties’ comprehensive briefing concerning Defendant’s Motions to Compel Production of Brady Material.”

Paul Mirengoff, who also writes for PowerLineblog.com, and who is not at all given to any embroidering whatever in his writing, summarized the Court’s Order as follows:

The cancellation of oral argument tells us that Judge Sullivan is ready to rule, but not what his ruling will be. I understand, though, that Gen. Flynn’s legal team considers today’s order by Sullivan good news. Its comprehensive discussion of prosecutorial abuse in this matter stands unrebutted.

Let’s hope Judge Sullivan sees it this way. Michael Flynn has endured unconscionable treatment from the country he served with great distinction.

Ms. Powell is reportedly working on a new book, possibly a sequel to Licensed to Lie. It is beginning to look like she will have plenty of material if the Court decides, especially after enduring the overwhelming corruption in the Stevens case in his court, he has well and truly had enough of the kind of blatant and deliberate misconduct which has apparently marked the persecution of Gen. Flynn. It is my opinion, as someone who practiced law for a very long time, and who reveres the American Rule of Law, that every lawyer who is proven to have played an active role in this nightmare visited upon a man of honor and integrity like Gen. Flynn, should be permanently disbarred, never to be allowed before the Bar of Justice again.

Returning to the Kafka novel, it is interesting to note that Josef K. never did know what he was alleged to have done in order to be arrested, nor did the Court in the novel, nor did anyone else. Josef K. died, never having been informed of the accusation nor having been availed the right to confront his accuser, if, indeed, there ever was one. A tale for our time?

Author’s note: I am well aware that much of this discussion either borders on the tedious, as “going into to the weeds” often does, or goes over the line into pure tedium. The reason I did this is because it seemed to me that it was worth doing as the media simply will not report facts like this to the public. Perhaps I was able to get these important facts out to a few citizens who have not seen them and will find them helpful to a fuller understanding of just how outrageous this corrupt prosecution has been. JAG