In the court case against Lt. General Michael Flynn, the U.S. Court of Appeals for the DC Circuit has ordered Judge Emmet Sullivan to grant the request of U.S. Department of Justice (DOJ) to dismiss. But what will happen next?
In the eyes of General Flynn’s attorney Sidney Powell, what are the implications of Judge Sullivan keeping the case open? Is there more exculpatory evidence to come in the Flynn case?
And, what are some possible steps to take to strengthen the DOJ as an institution?
In this episode, we sit down with Sidney Powell, counsel for Lt. General Michael Flynn. She is also the author of “Licensed to Lie” and “Conviction Machine.”
This is American Thought Leaders 🇺🇸, and I’m Jan Jekielek.
Jan Jekielek: Sidney Powell, such a pleasure to have you back on American Thought Leaders.
Sidney Powell: Thank you for having me. It’s always a pleasure to talk with you.
Mr. Jekielek: Well, you’ve been very busy.
Ms. Powell: That’s the understatement of the century.
Mr. Jekielek: I’m going to ask you in a little bit what it’s taken to work on this on General Flynn’s case, but let’s talk about where we are today. The DC Circuit Court of Appeals has basically ordered Judge Sullivan to close the case. I think he had 24 hours to do so, and he didn’t do it. So what’s going on? Where are we at here?
Ms. Powell: Well, they don’t really put a time limit on the order. But I can say in my decades of practice—and we’re not going to number those—that I’ve ever seen a judge not do what he was told to do by what’s called a writ of mandamus, or extraordinary writ, an order directly from the Circuit Court of Appeals to do something. They always do it within 24 to 48 hours. I just haven’t seen that happen, with the possible exception of one case, way back when I had to get a writ of mandamus issued against the Federal District Judge twice in the same case. Now, we’re certainly hoping that doesn’t have to happen here and that the order will be signed shortly, because he’s not party to the case. That doesn’t mean the full court can’t review the case on its own, but it would be unprecedented to do so in these circumstances.
Mr. Jekielek: There’s so many unprecedented things related. I keep hearing of something new happening, and even months ago, I heard “unprecedented.” How about you give us a bit of perspective and outline this journey from the time that you came on as General Flynn’s attorney?
Ms. Powell: Well, I had been concerned about this case from the beginning. From the very beginning, I was writing articles about it for The Daily Caller and other publications about what I was seeing in it. It all kind of followed on from my book Licensed to Lie exposing corruption in the Department of Justice.
I didn’t touch the issues with the Mueller Task Force Special Counsel operation until I saw that they brought Andrew Weissmann in, and I knew he was actually going to hit it, because he is what I call the lead villain in Licensed to Lie. He is widely known for making up crimes, hiding evidence that shows people are innocent, and just railroading people with the enormous pressure that the federal government can bring to bear against an individual when they’re indicted. So I became immediately concerned then. Then the more I saw come out about the Flynn case and how it was being handled, the more concerned I was. All the red flags were there.
Mr. Jekielek: So you were watching this. How is it that you got connected with Flynn?
Ms. Powell: You know, I can’t remember. I know I went to the first hearing when Judge Sullivan was going to have a status conference on the case, because Judge Sullivan, ironically enough, is a judicial hero of Licensed to Lie. I’ve been bragging on him for seven years, calling him the judicial hero of Licensed to Lie and bragging about his Brady order, and touting it as him being the leading judge in the country for requiring the government to produce the evidence that shows the defendant is innocent. I remember one of the first articles I wrote was, “Hey, Judge Sullivan has got this case now. Flynn should move to withdraw his guilty plea, because he [Judge Sullivan] is the champion against government misconduct in hiding evidence that shows people were innocent.” I just knew evidence was being hidden. They would have exonerated General Flynn.
So I attended that hearing just to get a feel for how it was going, as somebody interested in the issue. I speak on these topics all the time. Then when he had the sentencing hearing, I just happened to be in DC and went to that. Somewhere in there I had met his brother, Joe, at some event in Dallas, a seminar or something. We had talked a little bit about how outraged I was over what I was saying. I kind of gave him the data dump on the book, and then it was sometime late in the spring of 2019 that the general contacted me.
Mr. Jekielek: It’s an incredible thing, isn’t it? That you have both Weissmann involved in the Muller investigation, and then you have Judge Sullivan involved in this case, and they’re both very prominent.
Ms. Powell: I never imagined myself appearing before Judge Sullivan, in any kind of case at all, much less the Flynn case on Brady issues. Never.
Mr. Jekielek: So the general called you. Did you think there was something wrong with the way his defense team was functioning? How did this transpire now, this shift?
Ms. Powell: Well, I was very concerned that I had seen things happen so quickly with respect to his guilty plea and without any Brady motions being found at all in the case. The docket sheet was a page or two. I’ve never seen that in a criminal case, especially one where I just knew there was so much wrong with the prosecution. At first, I thought I could work as perhaps co-counsel with Covington [& Burling], and then pretty soon it became apparent that that was not going to work out at all.
I realized that they had a massive conflict of interest. I didn’t know when I first got into it that they were the ones that had actually done the Foreign Agent Registration Act filing. That was why he went to them in the first place, because Rob Kelner was widely known as being one of the leading authorities for filing the Foreign Agent Registration Act form that the Department of Justice had written Flynn a letter about not long after he was named incoming NSA, ironically enough, and that was because he had simply written an op-ed for the hill that was very opposed to the Muslim Brotherhood. So [when] the FARA letter was issued, he sought out Covington to help with that.
Then I realized in the process of talking to them about it that they had done the FARA registration and other issues came up that I can’t discuss. But anyway, he wound up terminating Covington & Burling’s representation of him, and I took over the case, probably last June or so, roughly a year ago.
Mr. Jekielek: It’s also incredible because there’s some massive costs that went into this already, right? Some millions, I don’t know the exact numbers, but then to switch accounts like this, it’s a bit of a risk, right?
Ms. Powell: Yes, it is definitely a risk. Of course the media was full of concern about it, because everybody had touted the great deal Covington had gotten for him. Well, it’s not a great deal if you’re innocent. I’ve talked to him at length about the entire situation. I was absolutely convinced the man is innocent. He is as honest as the day is long and no more patriotic person has ever walked the face of this earth than Michael Flynn who has devoted his life to this country, serving five years in active combat, deployed overseas in some absolute hellholes. He faced the real deal.
It didn’t take me long digging in the file to see that there was a whole lot of Brady evidence that the government had produced clues to, but not the actual evidence of. I had done the same thing in the Brown case that I wrote about in Licensed to Lie. When Eric Holder came in the Department of Justice and moved to dismiss the Ted Stevens case, I thought he was serious about cleaning up the Department of Justice. Back then, I represented a Merrill Lynch defendant who had been the victim of made-up crimes and hidden evidence and all of that. So I wrote Eric Holder a very lengthy letter. In fact, it wound up being about 50 pages with exhibits to try to get his attention on the injustices in the Brown case, because it was still going on. I decided I would write a letter to the Department of Justice and try to get it resolved without another black eye against the department.
Mr. Jekielek: I see.
Ms. Powell: That letter wound up being attached by Mr. [Brandon] Van Grack to one of his filings in Judge Sullivan’s court. Of course, he responded to it within a few weeks of me having written it, denying that there was any Brady evidence in the case whatsoever, despite the fact he had produced a list of things that contained exculpatory evidence, but not given us the actual evidence.
Mr. Jekielek: Fascinating. So you petitioned Judge Sullivan to get this exculpatory Brady evidence, but then something happened you didn’t expect, I think.
Ms. Powell: Oh, yes, the greatest irony in the case. I bragged about Judge Sullivan for years, everywhere across the country, bragged about Judge Sullivan for requiring the government to produce Brady evidence in the Ted Stevens case and dismissing that case on the government’s motion, because they had hidden the evidence that showed he was innocent.
So I file a lengthy, I think it was probably, I don’t know, 45 or 50-page brief, asking and detailing all the Brady evidence that the government was hiding in this case, including DIA, Defense Intelligence Agency, briefings where General Flynn had told them about all his foreign contacts before he even made them. He told them about his trips to Russia and had them brief him on things they wanted him to collect for them while he was over there, and then reported back to them immediately. He briefed them on his Turkey contact. He pre-briefed everything he was doing religiously, and there was nothing secret at all. His company had even filed what’s called a Lobbying Disclosure Act formed to comply with the FARA registration requirements on advice of counsel, back when they first started doing anything related to Turkey. The whole thing was blown up from nothing.
Here I’ve been bragging on Judge Sullivan. I filed this Brady motion that is as solid as it can be. The government replies, “there’s no Brady; there’s no Brady; there’s no Brady. He pled guilty; he pled guilty; he pled guilty,” which has nothing to do with it. Judge Sullivan’s Brady order requires the production of Brady even after somebody pled guilty, and a prosecutor’s Brady obligation continues even after conviction and sentencing. So that [argument] made no sense at all, and I thought surely Judge Sullivan of all people is going to give us at least the actual documents that the government itself has listed as having information that was favorable to the defense. I also thought he’d give me a security clearance to review any of the things that the government had deemed “classified,” which turned out to be, [as] we found [out] much later, evidence of their own guilt. That was a lot of what they had classified, and that’s what I expected to find.
But what I didn’t expect was for Judge Sullivan to deny every single Brady request we asked for in the document, every single one, in a 92-page decision that was just raging. I was flabbergasted. I had been convinced that he would do the right thing, and we would get Brady and once we got any Brady at all the case would start failing. The government would have to move to dismiss it, because of what they had hidden. But he backed the prosecutor, Van Grack, up all the way. I knew Van Grack was standing there lying to the court every time he said anything.
Mr. Jekielek: So what’s going through your head as you’re reading this 92 page ruling? What are you thinking? I don’t know, maybe you can’t tell me everything you’re thinking.
Ms. Powell: Well it was basically “What in the world? What in the world is going on here? Why?” It just made no sense whatsoever, according to the law or the Judge Sullivan that I had seen and written about and bragged on in the Ted Stevens case. It just did not jive. And the fact that General Flynn had pleaded guilty had nothing to do with any of it, because number one, the judge’s order required the production even after a plea of guilty as it should. And number two, they had been hiding it from the very beginning.
Mr. Jekielek: Let’s segue a little bit here, because there’s a lot to be said in your writings about people pleading guilty in this country in general. The stats are unbelievable. I’m kind of shocked that this isn’t generally known, and you know this a thousand times better than I do. Can you outline how often people actually plead guilty irrespective of the reality of the situation and why?
Ms. Powell: In about 95 percent of the Federal cases—I’m not sure of the states’ statistic; it’s probably the same—people plead guilty, and so there are very few trials. If you do go to trial, the government has a 98 to 99 percent win-rate. So the deck is so stacked in favor of the government. If courts don’t make them produce Brady evidence, people don’t stand a chance. They need to be made to produce it pre-plea, all of it. We’ve seem to have lost the presumption of innocence.
Everybody thinks that once someone is indicted, [they’re guilty]. Of course, all you hear is the language of the indictment printed in the newspapers. Weissmann and his cronies, including Van Grack, can make giving your mother a Christmas present sound like a federal criminal offense the way they describe it. That’s what they did to the Merrill Lynch defendants in the Enron litigation. They made a simple business transaction, a perfectly legitimate business transaction, sound like a criminal conspiracy and deprivation of services and wire fraud. It wasn’t, and people spent a year in prison on those false allegations of any criminal conduct, and then the Fifth Circuit ultimately held the conduct wasn’t criminal. The same thing happened to Arthur Andersen, the destruction of 85,000 jobs, on an indictment that pieced together parts of two different statutes to make a crime out of something that was not.
Federal prosecutors have incredible power, very little supervision, [and] no accountability. They want to destroy qualified immunity for police officers, who have to act in split-second life-threatening circumstances faster than most people can even comprehend what’s going on. Prosecutors have absolute immunity. They can’t be sued at all, for anything, and so there’s no accountability. They’re not held accountable by bar associations for hiding evidence that’s shown in Licensed to Lie. Also, they’re not held accountable by the Office of Professional Responsibility in the Department of Justice. The Ted Stevens case is an example of that. So they just do what they want to do, and nothing happens to them. No matter how many lives they destroyed or how many innocent people they sent to prison.
The National Registry of Exonerations contains over 500 names of people who had pled guilty, but were later exonerated. Because of what we now call the Conviction Machine, [which is also the title of] a new book Harvey Silverglate and I wrote, it is so crushing for an individual to try to stand up against [federal prosecution], regardless of their station in life. I mean, look at what happened to General Flynn. Imagine what happens to somebody that doesn’t have his standing, his spotless record, [and] his financial resources—thanks to the generosity of the American people who have funded our defense front in increments from $1 to $10,000. If you’ve got a strike against you, and you get indicted, you are toast.
Mr. Jekielek: Clearly, judicial reform is something you’re a big advocate for
Ms. Powell: Yes, I’ve been working on it for 20 years.
Mr. Jekielek: Why don’t we put a pin in that one, because I want to think about that a little bit more later. I want to get back to the progression of the story. US Attorney [Jeffrey] Jensen comes into the picture.
Ms. Powell: Which we didn’t know about.
Mr. Jekielek: Right, I think nobody knew. There was no leaking.
Ms. Powell: Right.
Mr. Jekielek: This was another major turn right? I don’t know if I’m missing one or not, but tell me more about this progression since this moment where you realized the Brady evidence is denied.
Ms. Powell: That was the real stunning blow. Next, the government moved to proceed with a sentencing against him. In the process of doing that, Van Grack was enraged about a number of things, not the least of which was that his case in the Eastern District of Virginia against Flynn’s business partner, Mr. [Bijan] Rafiekian, had led to a judgment of acquittal by the district court judge, because there wasn’t any evidence of a conspiracy even enough to get in the co-conspirator hearsay statements. Again, the government had no crime there, so the judge had thrown that out.
Flynn had been supposed to testify in that case, and we were trying to cooperate with the government. In fact, we went to multiple meetings, and I went with him, and our full intent was to cooperate with them, until one day they wanted him to lie. That all blew up, and Van Grack was enraged. In fact, he screamed at me over the speakerphone last summer, probably about the middle of July or early July, and just kind of went off the rails.
I told him there were no circumstances under which he was going to testify to something that was not true. He wanted him to admit that he knew the statements on the FARA form were false when he found it. He did not. He had paid Covington & Burling hundreds of thousands of dollars to get it right. He had no idea how the blooming thing was supposed to read. Frankly, I don’t think the statements were false in the FARA filing anyway; they certainly weren’t material. What difference does it make who initiated the op-ed as the FARA filing revealed?
When I dug into the FARA filing even, I realized that the government itself had made up the false statements. They had taken out blocks of keywords from the FARA filing itself to say that something was false when it wasn’t. [Moreover], Covington had admitted in emails that we found later that they knew the false statements weren’t false. We’ve briefed that. All the briefs, by the way, are available on my website at sidneypowell.com with the exhibits.
Mr. Van Grack was enraged by all of that. He was so enraged that when he requested the sentencing be set, he revoked and said he was withdrawing two motions or positions that had been key to the plea agreement. That was a breach of the plea agreement. So then we moved to withdraw General Flynn’s plea for Mr. Van Grack’s breach of the plea agreement. By then, we had also found all kinds of other reasons that warranted withdrawing the plea. We brief those at length, and those are also available on my website.
But there never should have been a plea. There was a combination of Covington conflict of interest from having done the FARA filing—they should have withdrawn as we briefed back in August of 2017—and … ineffective assistance of counsel issues specifically so egregious that he was deprived of his Sixth Amendment right to counsel.
Judge Sullivan’s “extended plea colloquy,” didn’t cover key questions that should have been asked if that was going to reaffirm the plea at all. Judge Sullivan had even ended that plea colloquy as he called it. It was supposed to be a sentencing, but all of a sudden, General Flynn is up there with Covington lawyers beside him who were hopelessly conflicted, a situation he doesn’t fully understand. Then the judge is asking him all these questions he wasn’t expecting about his plea.
Turns out Covington had briefed him only to whatever you do, “Affirm your plea, don’t seek to withdraw it. If he gives you an opportunity to withdraw it, he’s giving you the rope to hang yourself.” That was their advice as we briefed, so he was completely blindsided by that whole thing. Thank goodness Judge Sullivan, at that stage, gave him an opportunity to postpone his sentencing, and he took that opportunity. That’s another huge irony, because then that ultimately led to him consulting me before he went to testify in the Eastern District of Virginia, and essentially helped change the course of history.
Mr. Jekielek: That’s incredible. And this is all not knowing what US Attorney Jensen was doing?
Ms. Powell: Right.
Mr. Jekielek: Fascinating.
Ms. Powell: Yep, and then all of a sudden, we start getting Brady evidence in. We’ve gotten all the briefing done on the issues to withdraw his plea. We also filed a motion to dismiss for egregious government misconduct, because another thing that happened that was very important was the huge inspector general report that came out in mid-December of 2019. That was a whole other instance documenting massive government misconduct. Judge Sullivan at the government’s request had even postponed our briefing schedule to allow for that report to come forward.
But yet when he issued the massive Brady order denying everything, he didn’t consider anything in there at all, or give us a chance to brief it to show how it would affect the Brady issues or anything.
It revealed the stunning fact that Agent [Joe] Pientka, one of the two FBI agents who interviewed General Flynn on January 24 to form the basis of the government’s whole case against Flynn, had been slipped into a presidential briefing back on August 17, 2016 for the sole purpose of collecting information on Flynn, gauging and assessing his mannerisms in case they ever needed to interview him later, i.e. if Donald Trump is put in the White House and General Flynn is there with him.
That was such an abuse of FBI authority that Christopher Wray immediately said it would never happen again. More recently than that, the ODNI had said that the FBI will no longer be allowed to participate in those briefings.
Mr. Jekielek: Wow.
Ms. Powell: That’s how bad it was. That caused me to do the motion to dismiss for egregious government misconduct, because we had not moved to dismiss before. We had said we would when we got more Brady evidence, and we expected to get it, but we hadn’t actually moved to do it. That was just stunning evidence. There was more in there too, but that was the big nugget that was relevant to Flynn. Mr. Pientka had told the Inspector General how it related to the Flynn interview on January 24.
That gave far more credibility even to the fact that both those agents including Pientka, who interviewed him then, believed he was telling the truth. He had a baseline read on him to judge that by. They had briefed three different groups of people in the upper echelon of the FBI and the DOJ after the interview, to the effect that they believed him or felt like or knew he believed he was telling the truth, which is another thing that would completely negate any false statement by General Flynn, whether he remembered all the details of the calls or not.
Then we find evidence that shows that they deliberately schemed and planned how to interview him that day, to avoid letting him know he was even the subject of the interview. They had planned that. They had had meetings to discuss how to keep him unguarded and relaxed, so that he wouldn’t even know he was the subject of the interview.
They chose multiple ways to violate their own rules. They discussed the rules, and they rejected following them in each instance with respect to General Flynn. That was in several material ways. First, they didn’t give him any notion that [Title 18 United States Code Section] 1001 was involved. He thought he was just talking to two colleagues about issues. They’d been there even two days [previous] doing a briefing and everything for the whole White House staff.
Mr. Jekielek: And what’s 1001 to clarify?
Ms. Powell: Yes, that’s the federal false statement statute. If the FBI even suspects, to any degree, someone is not telling them the truth, their standard operating procedure is to remind the person that anything they say to an FBI agent can be prosecuted as a federal felony, with a five year penalty under [Title] 18 United States Code Section 1001, the false statement statute. They deliberately decided no matter what happened in that interview with General Flynn, not to even mention 1001, much less the full statement of what it means. That was one of their deliberate choices not to follow protocol.
Another was [the protocols pertaining to] if they’re going to ask people about prior statements they have records of. They had full transcripts of his phone calls with all the foreign contacts. They either had a pin register on his phone, or they had a FISA against him. I still don’t know. But they were monitoring all his phone calls, and they had transcripts of them. They didn’t show him, and they decided not to show him the transcripts of those phone calls as they were questioning him about them. There was no point to question, and they already knew what he said.
After Mr. Jensen became involved, we learned that they had completely closed or ordered the file closed on him from the investigation they falsely started back in August of 2016. They had even put surveillance on him. They had not found a single piece of derogatory information about him. [After] 33 years in the government, [there was] no derogatory information. They searched the files of other three letter agencies that were blacked out, but we can imagine which those are: not the least of which was a Defense Intelligence Agency that he had headed for President Obama, and I would guess one of them was the CIA. Anyway, there were plenty of government files on General Flynn and not a piece of derogatory information in one of them. They had no basis to talk to him about anything. They still went over there that day and ambushed him.
One of the things we found that the government never did disclose to us was a text message between [Peter] Strzok and [Lisa] Page on January 10, of 2017. Talking about [how] Strzok and [Bill] Priestap were sitting there watching CNN, and the whole BuzzFeed thing about the Steele dossier exploded in the news, thanks to [James] Clapper or [John] Brennan or somebody leaking it to CNN and BuzzFeed. Then Comey briefed President Trump on it in the Trump Tower on January 6 after being in the meeting in the Oval Office with Yates and Clapper and Brennan and Comey and Rice and Obama and Biden on January 5. [In the texts,] they’re talking about using that as a pretext to go interview some people. That Brady the government still hasn’t given me. I found it accidentally just doing my own independent research.
Mr. Jekielek: Fascinating. So effectively, US Attorney Jensen totally came forth, basically passed to you all sorts of Brady.
Ms. Powell: Yes, he gave us the report that the FBI Washington field office had ordered the investigation closed. He gave us several pages of new text messages between Strzok and Page indicating the flurry of activity on January 3rd and 4th, [revealing] Strzok trying to reopen the case at the direction of the seventh floor meeting of the leadership of the FBI.
Then just this past week, in fact it was almost the same time the court issued it’s writ of mandamus, we got a stunning piece of handwritten notes from Agent Strzok that indicate he had been talking or somebody had been talking with President Obama and Biden that seems to indicate Biden as the one who mentioned pursuing a Logan Act theory against General Flynn, which not only has never been successfully prosecuted in 200 years, but raises all kinds of constitutional issues about whether it’s even a valid statute. And [it] would have no application whatsoever to the incoming national security adviser for the president-elect of the United States, because they’re supposed to talk to foreign leaders about things and not get blindsided the day they come into office.
To even discuss that with President Obama and Biden was remarkable. Then Obama, according to the notes said, make sure you get the right look at these things and get the right people on it.
Mr. Jekielek: It’s really interesting because this last group of Brady exculpatory evidence comes after the government has already decided to close the case.
Ms. Powell: Yes. Like I said, they have a continuing obligation to produce anything they find, no matter when they find it. That doesn’t stop until the case is completely gone.
Mr. Jekielek: So you might be getting a file tomorrow.
Ms. Powell: Yeah, the longer Judge Sullivan takes to dismiss the case, the more stuff they owe me. There’s still a long list of things that I know are there from the government… from Van Grack’s own Brady letters that I know are there. There’s a January 30 memo inside the Department of Justice completely exonerating General Flynn of all things Russian. [This is on] January 30, 2017, while he was still in the White House. Not only did they not tell him of all those things, for his defense of this case, or back then, they used the Flynn prosecution to gin up an obstruction of justice prosecution or impeachment hoax of President Trump.
Comey knew when he talked to the president on February 14, 2017 that Flynn had been cleared of everything. When the President said “Flynn’s a good guy, I hope this is gonna go [away],” he [Comey] should have told him “It’s already gone Mr. President, we cleared him weeks ago.” Instead [he] runs to his car and writes another “dear diary” that he leaks to the New York Times about how the president is trying to obstruct justice by just hoping the Flynn case has gone when it was already gone.
Mr. Jekielek: It’s this rabbit hole that keeps going deeper and deeper as we keep learning more information. We’ve been covering all of these different related issues from the get-go for a number of years, and it’s just unbelievable watching it evolve. Of course, we’re kind of in the midst of history being written here. It’s fascinating.
Ms. Powell: Completely yes. … In fact I heard there’s more Brady evidence to come. There has to be, because like I said, I know there are documents there from the government’s own list that show he’s innocent.
Mr. Jekielek: Right now, a few days have passed. This DC Circuit Court has said “Close this case, Judge Sullivan.” It hasn’t happened. What do you expect is going on right now, why the delay and what’s being considered?
Ms. Powell: Well, it could be that there are discussions going on inside the DC Circuit as to whether the court as a whole [is discussing it]. I call it en banc from the french expression [for] when the court sits in all the judges, all the active, not senior, but all the regular judges of the DC Circuit sit en banc [on the bench] and review the decision of the panel. That would be the only way to change the decision of the panel.
Even more compelling is the fact that the very well-written and authoritative decision of the two judges of the panel who signed on to it rests on a very well-written decision by the Chief Judge of the DC Circuit. It is authoritative on the very issues in this case, when a rule 48, a motion to dismiss, is brought by the government. The leave of court provision that it’s in, according to the Supreme Court, is only there to protect the defendant from harassment.
The government filed the most substantial motion to dismiss I’ve seen in my time in practice. It’s 100 pages, including all the exculpatory Brady evidence that was found. There’s nothing to inquire about. The district judge doesn’t get to go behind the documents that have been filed to inquire into the decision of the executive to dismiss any more than that the executive could probe behind the Court of Appeals decision to see why and who and whatever happened to create that decision. It’s separation of powers in our Constitution at the very basic level.
Mr. Jekielek: There’s also this order to vacate the amicus right?
Ms. Powell: Yes, the first thing Judge Sullivan did that went off the rails after the motion to dismiss was to name a “friend of the court,” an amicus, to pursue the case in the stead of the government. His friend was going to brief it and did brief it, both against the government and the defense as to why the case shouldn’t be dismissed. He doesn’t get to appoint a special prosecutor; that’s all within the power of the Department of Justice to decide what is going to be prosecuted and when. Nevermind the incredible double standard of how they treated other people who might have been prosecuted for things and weren’t.
Mr. Jekielek: When we were talking offline, you [mentioned you] always have a plan A, plan B, plan C, for everything. Maybe you don’t want to reveal all your cards, but what do you expect will happen here? Are you ready to take this to the Supreme Court?
Ms. Powell: Yeah, whatever we need to do. I came into this case believing in my clients innocence, believing that Judge Sullivan was going to do the right thing and that we’d be done by now. I know he’s innocent, and I will not stop until that is totally proven and the Supreme Court denies my petition for rehearing if necessary. We are going to continue this fight however long it takes and wherever it goes.
Mr. Jekielek: There’s a lot of unanswered questions here, presumably, in the material that you’ve seen. There’s a lot of things that pertain to this whole, let’s call it the Russia collusion scenario. There’s a lot of material that’s now not available to the general public to view that the public may be interested in. What do you expect will happen with all this? Let’s say the case closes and let’s say that the case is over in a few days. What happens to all of that?
Ms. Powell: Well, anything that was produced to us under the protective order, there’s a possibility that it has to be returned to the government. Of course, we have filed a lot of documents publicly with the agreement of the government. They’ve been unsealed or publicly filed, so those are still available.
Some other things I would think would be highly relevant to Mr. [John] Durham’s investigation. In fact, I’m pretty sure that a few of the things we have gotten actually came from that, because they didn’t have markings of government forms or files. That’s the only way I can think of they have gotten them. Instead, somebody gave them to him or they were a result of a grand jury subpoena or something they didn’t have. Of course, it was a lot redacted, but it didn’t look like an official government thing.
There’s still a whole lot more information that needs to be brought out for the people to know; all the truth about everything that happened both with respect to General Flynn and President Trump and the whole situation writ large, but we have a lot more insight into it now. That we’ve put all the pieces together that we have with respect to Flynn.
Mr. Jekielek: So for you and General Flynn and everyone involved, it’s a waiting game at this point.
Ms. Powell: Yes.
Mr. Jekielek: I get to benefit from that. We get to sit down, right? [laughs]
Ms. Powell: Yes, that’s right. Otherwise, I would have had a brief due at noon Friday [and] another one due shortly. Yes, so the briefing schedules have been completely terminated, and the hearing schedule has been terminated, but the case has not been terminated.
Mr. Jekielek: So give me a sense of what the workload has been like on this case.
Ms. Powell: Roughly 20 hours a day, seven days a week, since I got into it. Covington gave us 18 hard drives of information, and then we found out [about more]. That was another unexpected twist that I’d forgotten about. Only a few months ago, they let us know they hadn’t produced everything.
Mr. Jekielek: Right.
Ms. Powell: There was another, I forgot how many, tens of thousands of documents, and then we found out we still don’t have it all, so there are a lot of unanswered questions from many directions.
Mr. Jekielek: You’ve been working on this. I know Molly McCann has come and worked with you. We’ve talked about her. I’ve been communicating with her a bit. Who is actually working on this case?
Ms. Powell: The core team has been Molly, of course, who happened along the way, last summer, probably about a year ago right now, a Godsend in every way. Then [there’s] my co-counsel, who was local counsel, but I wanted them to serve more as co-counsel, and [they] certainly fulfill that role: Jesse Binnall with the Harvey Binnall firm in Alexandria and Lindsay McCaslin, who works with him, a much younger lawyer, and then a baby lawyer, Abby Frye, who’s in her first year of practice. They have just been absolutely extraordinary. They have put in long hours and been right there to do what we needed.
It was so amazing to see the right person show up at the right time with the right information throughout this case, and we also had a couple of secret weapons from general Flynn’s family that were invaluable. His niece, Alicia Kutzer, from Pennsylvania, is a terrific lawyer. She can find things, research facts and law amazingly well, and came up with key decisions that we needed at the right time. [There is also] his sister, Claire Eckert, who is a brilliant paralegal and communications strategist and has her own company. We just put together people who understood what had gone on and what needed to be done, and proceeded to do it.
Mr. Jekielek: Any sense of where Mr. Van Grack has gone after leaving the case?
Ms. Powell: Well, he was head of the FARA division at the Department of Justice. I’m assuming he’s still there. I would certainly hope he is under a serious OPR [Office of Professional Responsibility] investigation, because his conduct in this case and denying there was Brady material was appalling. Completely unethical, not to mention the temper tantrum he threw at me when I told him Flynn was not going to lie and that he was asking him to lie. He knew [that], by the way, because he had edited the plea agreement to take out the specific language he then insisted Mr. Flynn admit to. That was just a rather remarkable interchange. We still have a lot of work to do tying up some loose ends.
Mr. Jekielek: With respect to General Flynn, he’s been very, very quiet over quite a number of years. Recently, there were a few short interviews.
Ms. Powell: Yeah, they weren’t really interviews. He called into a few radio shows, before everything got turned upside down with Judge Sullivan not signing the order, just to say thank you to the American public and the radio hosts in particular, who have been so supportive of him and helped raise money for the defense fund. We’ve been operating off the generosity of the American people. A lot of the donations have been what I would call the widow’s mite [small but powerful].
Mr. Jekielek: Fascinating, and so is he under a gag order?
Ms. Powell: No, there’s no real gag order. But discretion being the better part of valor, he is full of valor; he has chosen to try to let the system work its way out. That’s what I’ve been determined to see happen to make the justice system itself work, and to pound on the Department of Justice to do the right thing here and restore its own reputation by moving to dismiss and acknowledge the wrong conduct of its agents and attorneys.
That is hugely important to restoring people’s confidence in the rule of law, the FBI and the Justice Department. It’s an imperative. It’s absolutely imperative that the Department of Justice return to the time when it would self-correct. It’s huge.
When I was an assistant US Attorney, I was raised to tell the judge the truth, whatever it was: the good, the bad, the ugly. I’m on the record in the Fifth Circuit footnote for saying the agents botched it. The judge quoted me in the footnote in the decision. We still won because it turned out to be harmless error, but I wasn’t going to say they had done the right thing when they did not. That’s what an assistant US attorney is supposed to be.
Somewhere in the last 20 years we lost that. We came to a time when these people think the end justifies the means. They’re using the law as a weapon to destroy people, innocent people, destroy people’s lives. That’s not what our system of justice is about, so the Department of Justice has got to start standing up for the right thing. The only politics in this prosecution was from the very beginning on the side of prosecuting General Flynn at all, and I’m convinced now in particular that what Attorney General Barr is trying very hard to do is right the ship.
Mr. Jekielek: This actually brings us to that pin that we put in earlier about this reform that you feel is needed. You’re suggesting some things in a very broad way, but this is a very big ship. Once it started going, it’s kind of hard to get it to come back.
Ms. Powell: Very, very difficult. It’s going to be very difficult, but it can be done. It has to be done if we’re going to survive as a constitutional republic built on the rule of law.
Mr. Jekielek: So, what are your key recommendations? You’ve written about some of this of course, but at this point, if you were to sit down with General Barr and say “Here’s what I would suggest,” [what would it be]?
Ms. Powell: I’d fire any prosecutor that intentionally violated the Brady rule. I would make it known immediately that if you know you have intentionally violated the rule that requires you to produce exculpatory evidence to any defendant, or you have criminalized innocent conduct, or you have made up a crime, you’ve got two minutes to give me your resignation. Otherwise, there should be sporadic independent file review. I’d like to see a conviction integrity review unit set up to review some of the more egregious cases by people independent of the line prosecutors, whose goal is to look for errors. The inspector general is not enough for that. He doesn’t have the authority needed to do what would need to be done for full file reviews.
The same needs to be done with respect to the FBI, the Inspector General is doing that on multiple FISA applications and finding more and more fraudulent FISA applications. Every agent who did that should be fired yesterday. We cannot have government officials trusted with the power of the sovereign of the United States of America lying to federal judges. It just can’t happen. It’s completely unacceptable and there have to be immediate repercussions for that.
Another thing is the FBI should be required to record all its interviews. That’s a simple enough matter. They all have multiple recording devices on their persons at all times. People should be told at the beginning that anything they say can be used against them by the FBI or a court, that it’s a federal felony to lie to an FBI agent and then decide whether they want to cooperate with the FBI or not, and if it’s not recorded, it should not be used for any purpose.
Mr. Jekielek: There’s some pretty concrete suggestions. Any final words before we finish up?
Ms. Powell: Well, one of the important things that we didn’t hit is the fact that the FBI actually made up the false statements that they then charged General Flynn with. They altered the FBI report of the interview since it wasn’t recorded. The government has admitted in their motion to dismiss that there are statements in the 302 that were not reflected in the notes of either agent. They use those statements as “the basis” for the false statement charges. Then there are things in the notes that I couldn’t make sense of until I saw the declassified transcripts of the calls. Then I knew that he had told them things about the call that they had not put in the report. So it ran both ways. They didn’t put on things he did say that were true, and they added things to it, claiming he said things that he did not say. They made up the false statements.
Mr. Jekielek: Your prescription for agents that do this sort of thing is pretty clear.
Ms. Powell: Yes, fire them yesterday, at a minimum. Frankly, what they’ve done is obstruction of justice for which they should be prosecuted. The Department of Justice is going to have to start prosecuting agents and lawyers who lie to the court and make up crimes against innocent people.
Mr. Jekielek: … Large organizations of any sort have a certain sort of inertia, a will to perpetuate themselves. I suppose that’s something I’ve noticed over the years in various scenarios. Also there’s this desire also to … maintain the integrity… I think there’s people that feel that if all of this terrible stuff is exposed, no one will trust the Justice Department anymore.
Ms. Powell: No, I think the precise opposite is true. It’s exposing what actually happened and remedying it by the Department of Justice itself acting on it and the FBI acting on it. That will restore public trust. Hiding it is going to make everything worse. Nothing ever got solved by sweeping it under the rug.
Mr. Jekielek: Sidney Powell, such a pleasure to have you.
Ms. Powell: Thank you Jan. It’s always a pleasure to be here. And we thank the American people writ large for all their support for General Flynn, their prayers. We have felt uplifted by their prayers and the whole team appreciates all of it.
This interview has been edited for clarity and brevity.