Open Memorandum to Barack Obama
- May 13, 2020
- in Media
OPEN MEMORANDUM
To: Barack Hussein Obama
From: Sidney Powell
www.SidneyPowell.com
Date: May 13, 2020
Re: Your Failure to Find Precedent for Flynn Dismissal
Regarding the decision of the Department of Justice to dismiss charges against General Flynn, in your recent call with your alumni, you expressed great concern: “there is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free. That’s the kind of stuff where you begin to get worried that basic — not just institutional norms — but our basic understanding of rule of law is at risk.”
Here is some help—if truth and precedent represent your true concern. Your statement is entirely false. However, it does explain the damage to the Rule of Law throughout your administration.
First, General Flynn was not charged with perjury—which requires a material false statement made under oath with intent to deceive.1 A perjury prosecution would have been appropriate and the Rule of Law applied if the Justice Department prosecuted your former FBI Deputy Director Andrew McCabe for his multiple lies under oath in an investigation of a leak only he knew he caused.
McCabe lied under oath in fully recorded and transcribed interviews with the Inspector General for the DOJ. He was informed of the purpose of the interview, and he had had the benefit of counsel. He knew he was the leaker. McCabe even lied about lying. He lied to his own agents—which sent them on a “wild-goose-chase”—thereby making his lies “material” and an obstruction of justice. Yet, remarkably, Attorney General Barr declined to prosecute McCabe for these offenses.
Applying the Rule of Law, after declining McCabe’s perjury prosecution, required the Justice Department to dismiss the prosecution of General Flynn who was not warned, not under oath, had no counsel, and whose statements were not only not recorded, but were created as false by FBI agents who falsified the 302.
Second, it would seem your “wingman” Eric Holder is missing a step these days at Covington & Burling LLP. Indelibly marked in his memory (and one might think, yours) should be his Motion to Dismiss the multi-count jury verdict of guilty and the entire case against former United States Senator Ted Stevens. Within weeks of Mr. Holder becoming Attorney General, he moved to dismiss the Stevens prosecution in the interest of justice for the same reasons the Justice Department did against General Flynn—egregious misconduct by prosecutors who hid exculpatory evidence and concocted purported crimes.
As horrifying as the facts of the Stevens case were, they pale in comparison to the targeted setup, framing, and prosecution of a newly elected President’s National Security Advisor and the shocking facts that surround it. This case was an assault on the heart of liberty— our cherished system of self-government, the right of citizens to choose their President, and the hallowed peaceful transition of power.
Third, the inability of anyone in your alumni association to find “anybody who has been charged [with anything] just getting off scot-free” would be laughable were it not so pathetic.
Many of your alum feature prominently in the non-fiction legal thriller published in 2014: Licensed to Lie: Exposing Corruption in the Department of Justice. A national best- seller, it focusses on the egregious prosecutorial misconduct of your longest serving White House Counsel, Kathryn Ruemmler; your counter-terrorism advisor Lisa Monaco; Loretta Lynch’s DAG for the Criminal Division Leslie Caldwell; and Mueller protégé Andrew Weissmann. While they worked as federal prosecutors on the Enron Task Force—under the purported supervision of Christopher Wray—they destroyed Arthur Andersen LLP and its 85,000 jobs; sent four Merrill Lynch executives to prison on an indictment that criminalized an innocent business transaction while they hid the evidence that showed those defendants were innocent for six years. Both cases were reversed on appeal for their over-criminalization and misconduct. Indeed, Andersen was reversed by a unanimous Supreme Court.
Fourth, even if your many alumni don’t remember multiple cases that had to be reversed or dismissed for their own misconduct, Judge Emmet Sullivan should remember dismissing the corrupted case against Ted Stevens. Judge Sullivan is the judicial hero of Licensed to Lie. It is that case that caused Judge Sullivan to enter the strong Brady order the Mueller and D.C. career prosecutors violated repeatedly in the Flynn prosecution.
Fifth, there is precedent for guilty pleas being vacated. Your alumni Weissmann and Ruemmler are no strangers to such reversals. At least two guilty pleas they coerced by threats against defendants in Houston had to be thrown out—again for reasons like those here. The defendants “got off scot-free” because—like General Flynn—your alumni had concocted the charges and terrorized the defendants into pleading guilty to “offenses” that were not crimes. Andersen partner David Duncan even testified for the government against Andersen in its trial, but his plea had to be vacated. Enron Broadband defendant Christopher Calger had his plea vacated. There are many others across the country.
Sixth, should further edification be necessary, see Why Innocent People Plead Guilty, written in 2014 by federal Judge Jed Rakoff (a Clinton appointee). Abusive prosecutors force innocent people to plead guilty with painful frequency. The Mueller special counsel operation led by Andrew Weissmann and Weissmann “wannabes” specializes in prosecutorial terrorist tactics repulsive to everything “justice” is supposed to mean. These tactics are designed to intimidate their targets into pleading guilty—while punishing them and their families with the process itself and financial ruin.
Most important, General Flynn was honest with the FBI agents. They knew he was—and briefed that to McCabe and others three different times. At McCabe’s directions, Agent Strzok and McCabe’s “Special Counsel” Lisa Page, altered the 302 to create statements Weissmann, Mueller, Van Grack, and Zainab Ahmad could assert were false. Only the FBI agents lied—and falsified documents. The crimes are theirs alone.
Seventh, the D.C. circuit in which you reside vacated a Section 1001 case for a legal failure much less egregious than those in General Flynn’s case. United States v. Safavian, 528 F.3d 957 (D.C. Cir. 2008). Safavian sought advice from his agency’s ethics board and did not give them all the relevant info. The jury convicted him on the theory it was a 1001 violation to conceal the information from the government ethics board. The court disagreed: “As Safavian argues and as the government agrees, there must be a legal duty to disclose in order for there to be a concealment offense in violation of § 1001(a)(1), yet the government failed to identify a legal disclosure duty except by reference to vague standards of conduct for government employees.” General Flynn did not even know he was the subject of an investigation—and in truth, he was not. The only crimes here were by your alumni in the FBI, White House, intelligence community, and Justice Department.
These are just a few obvious and well-known examples to those paying any attention to criminal justice issues.
Finally, the “leaked” comments from your alumni call further evinces your obsession with destroying a distinguished veteran of the United States Army who has defended the Constitution and this country “from all enemies, foreign and domestic,” with the highest honor for thirty-three years. He and many others will continue to do so.
1As a “constitutional lawyer,” surely you recall that perjury (or false statements) also requires intent to deceive. In Bronston v. United States, 409 U.S. 352 (1973), the Supreme Court reversed a conviction of perjury. In Bronston, the defendant’s answer was a truthful statement, but not directly responsive to the question and ultimately misled federal authorities. The Court determined: “A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether “he does not believe [his answer] to be true.” To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know.” Id. at 359. The FBI agents who interviewed General Flynn specifically noted that his answers were true or he believed his answers to be true—completely defeating criminal intent. Furthermore, General Flynn knew and remarked they had transcripts of his conversations.
https://sidneypowell.com/media/open-memorandum-to-barack-obama/
Replies
You seem to forget that this is an election year.
Nothing like what you suggest will get done in Washington DC. If you want to get started, it needs to start on our own local level, and spread like a pandemic.
Exactly!
Law enforcement and Martial Law don't need Congressional approval to be implemented by the President... the only one who needs to act to go after crime and corruption is the President... he can direct the DOJ and FBI to move on various known corruption scandals... they must either do as he orders, resign or be fired.
Again, an election year has no Material bearing on the President's will to TAKE CARE that the laws of the United States are faithfully executed... he is the only person who needs to decide to enforce the law... not Congress or the DOJ...or the FBI... The President runs the DOJ, FBI, and all federal law enforcement... he needs to act like it and when they fail to respond replace their leaders until he gets those who will properly act to faithfully execute the laws of the United States.
I will never turn back on Trump so far he is the man for the job of all that he went through with the Democrats I give him my hats off. Right now I believe he need to focus on what's been happenning with Flynn because that's where the problem come from the coronavirus, the Obama administation, once that story of Mr. Flynn came out that's where all chain will break lloose. He will need to stay ahead of the game.
Who???? in your Mind would do a better job; he (TRUMP) has been shackledeld by the Marxist MSM (controled by CCP) for the last 4 years of lying and deceiving the masses on social Media, frustraded just like you! or more, that is why we need 4 more years of TRUMP, what do you have to loose? the spider web evil SWAMP is bottomeless;;;;Lindsey Graham right now, all bark no bite "a wimpy" and was tied in with Hell held McCain........................! it is a mess/ Trump 2Q2Q,.................PS. my oppinion take over Washinghton with the Military and establish the Oath they took, to protect us from Foreing and >DOMESTIC< enemies, and establish the Rule of LAW, the Constitution of the USA
Pres. Trump has ignored his duty to take personal control of the failed legal system in our Nation... I understand he needs help but that starts with his recognizing that individuals like AG Barr and US Attorney Durham are not friends of justice... in the 14 months, AG Barr has been in office not one major political criminal has been indicted... In the 12 months, US Attorney Durham has been acting as a special counsel to prosecute political corruption... not one indictment and certainly no convictions. In the 3 1/2 yrs Pres. Trump has done nearly NOTHING to drain the swamp and it appears he is now expecting us to give him 4 more years... to drain the swamp.
Are American's that foolish! Perhaps, that is why we have the problems in government we have today... we simply are unable to hold our elected officials accountable for their actions. Pres. Trump PROMISED to drain the swamp if we elected him... we did and he did not. He is now silent on how he intends to fulfill a broken promise... why? I understand that no one else has been able to drain the swamp... but that is no excuse for Pres. Trump's lack of action focused on draining the swamp. He needs to dismiss those in his circle of advisors who are informing him he is not able to direct investigations and to dismiss career lawyers who refuse to pursue open criminal conduct... and when he does if they are reinstated by someone else... fire them, and continue to fire everyone who refuses to follow his directions to drain the swamp...
The fact is that the left doesn't respect Pres. Trump or his power... the criminals feel secure and with each day they become even more obstinant and brash. Pres. Trump needs to take wherever actons are needed to enforce the law... fire the entire FBI and DOJ if necessary... Congress's and the Courts only Constitutional recourse would be to IMPEACH him ... and they have already tried that once. The only way the swamp will ever be drained is if the President stops looking over his shoulder and jumps in too remove the alligators and then works to drain and reclaim the ground lost to the swamp.
I have posted several articles suggesting the President declare limited Martial Law in DC, along our Southern border, in all federal territories, agencies, and offices.... for the specific purposes of suspending federal law enforcement and the Jurisdiction of the Federal Courts, long enough to clean out the corruption in government ... Beginning with a full-scale purge of the DOJ, Federal Law Enforcement, and Courts... He also needs to request Congress Amend or Rewrite the Federal Judiciary Act to: 1) Redistrict the lower federal courts, effectively removing all the sitting justices at one time; 2) Limiting the lower courts jurisdciton.. their injunctive powers, and orders to apply only to the case before them; 3) strike down the use of case law to form new law... challenge the doctrine of 'Judicial Review' in Marbury Vs. Madison 1803. Judicial review is Judicial rule/governance... this doctrine crowns the federal judiciary as the supreme branch of government.
I appreciate the Presidents job performance in all other areas of his office... but he has failed to drain the swamp. I will vote for Pres. Trump again... but I will also demand that he drain the swamp... Our nation's continuance as a Constitutional Republic hinges on the President draining the swamp.
Oh my the display of ignorance you show Col.
Why? Because I dare ask the President to enforce the rule of law... because I have the audacity to expect Pres. Trump, to KEEP HIS WORD TO DRAIN THE SWAMP? I at least expected some movement in draining the swamp... Can you give me the name of one major political figure indicted for criminal conduct?
I sincerely doubt the President would allow one of his corporations CEO's to fail to keep such a critical promise without holding them personally responsible... in fact, he would likely fire them. What should we do, ignore the swamp, the most dangerous force working to destroy our nation?
No, because you are failing to see reality.
To paraphrase an old saying. When you are up to your ass in Alligators it is REALLY hard to do much about your original mission to drain the swamp.
Trump has been up to his ass in Alligators since BEFORE he won the election. The more he does to get rid of the swamp dwellers the more they push back. He has accomplished a lot but you can't see, or refuse to see, the facts in the case.
BTW, if you really are a Col. you should also remember that the best-laid plan goes to hell at first contact. Yes, Trump had a plan but the communist left and the one-worlders on the right are the enemy of good and have fought him from the start.
Please don't make "perfect" the enemy of good.
MGySgt, USMC (Ret)
this is interesting, to say the least.