Is Special Counsel Mueller’s Office About to Have Its First Conviction Overturned?

December 16, 2018 Updated: December 18, 2018

Last week, both special counsel Robert Mueller’s office and former national security adviser Lt. Gen. Michael Flynn’s defense team submitted dueling memorandums to U.S. District Judge Emmet Sullivan, who is preparing to sentence Flynn on Dec. 18.

Flynn’s filing brought up the subject of FD-302 forms, which are the official records that FBI agents file following interviews with subjects of interest. In its memo, the defense noted that a 302 form provided by Mueller’s office was dated Aug. 22, 2017, more than six months after the FBI’s interview with Flynn actually took place.

Since FBI rules and regulations state that 302s must be filled out within five days of the interview, the fact that the Flynn memorandum referenced a 302 form filled out and filed more than six months later garnered immediate attention in the news media.

A curious feature of this months-late 302 form was noted by my colleague, Jeff Carlson, in his recent column in The Epoch Times, titled “New FBI 302 Document Appears to Reveal Interview With Agents–Not Flynn.”

This particular 302 form, which is cited five times on Page 14 of the Flynn memorandum, is an interview with former FBI Deputy Assistant Director Peter Strzok, who was subsequently fired from the agency after an extensive investigation by Department of Justice (DOJ) Inspector General Michael Horowitz.

In that August 302 form, Strzok carefully recounts his interview with Gen. Flynn from the previous January, walking through how he supposedly caught Flynn in a lie he told to Vice President Mike Pence and several others at the White House about some phone calls with former Russian Ambassador Sergey Kislyak.

Nowhere in its memorandum does Flynn’s lawyer make any reference to having received a 302 form from Mueller’s team that was written shortly after the interview itself. Instead, it appears the defense received only a 302 form written long after the fact, in which Strzok is strangely being interviewed about his interview with Flynn.

Why would it be necessary for the FBI to interview the agents about their interview with Flynn more than six months later, when there should be an original 302 record filed shortly after Flynn had his meeting with them in January?

It seems that Sullivan asked himself this very question, since immediately after the Flynn defense team filed its memorandum, Sullivan explicitly ordered Mueller to provide all the relevant documents—including all 302 forms—to him by 3 p.m. on Dec. 14, so that he could read them for himself, rather than just looking at competing memorandums.

Documents already provided to the court and to the public do appear to state that an original 302 form was, in fact, created in a timely fashion shortly after the Flynn interview took place on Jan. 24, 2017. But it wasn’t Strzok who created this original 302 interview form. It was the other agent at the interview who took the notes and filed the form.

It now appears Mueller’s team directly defied Sullivan’s direct order, as they didn’t produce this original 302 interview form written by this FBI agent so he could view it by the deadline he imposed.

Is a Key Whistleblower About to Emerge?

It’s been known for some time that the other agent who went to the White House with Strzok for that Jan. 24, 2017, interview was special agent Joseph Pientka.

In fact, Sen. Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, sent a letter June 6 to Deputy Attorney General Rod Rosenstein, in which he specifically requested that Pientka be produced for an interview.

That was followed up on June 29 when Rep. Devin Nunes (R-Calif.), who chairs the House Permanent Select Committee on Intelligence, sent a letter to both Rep. Trey Gowdy (R-S.C.) and Rep. Bob Goodlatte (R-Va.) with a list of suggested witnesses to be called, and Pientka’s name appears at No. 14 on that list.

Yet, to this point, neither the DOJ nor the FBI has even confirmed that Pientka was the agent who accompanied Strzok to the Flynn interview. Defense lawyers working on Flynn’s behalf also seem very careful to not identify the agent in any of their own filings with the court. So despite that the agent’s name appears in letters from congressional committee chairs exercising oversight over the DOJ, neither side in the Flynn case will publicly acknowledge his involvement.

At least, not yet.

A great deal of Grassley’s June 6 letter to Rosenstein is comprised of angry complaints about the fact that the DOJ was refusing to produce either documents or requested witnesses, such as Pientka. To quote from Grassley’s letter:

“The Department’s letter erroneously suggests that complying with congressional oversight would result in ‘the reality or the appearance of political interference’ in a ‘pending criminal prosecution.’ There is no pending prosecution. The guilty plea was more than five months ago.”

In hindsight, the reason that Rosenstein told Grassley that Pientka couldn’t be made available for testimony to his committee could be very relevant: He informed Grassley there was a “pending criminal prosecution.” But Grassley instantly dismissed this because he took Rosenstein’s statement to be about the already closed prosecution of Flynn.

What if Rosenstein was being forced to obliquely admit there was a different criminal investigation underway, in which Pientka is playing a key role and Grassley completely missed the hint?

Were the plotters inside the FBI who were planning to entrap Flynn forced to created a new FD-302 filing for the record more than six months afterward because Pientka refused to go along with this plan to frame an innocent man?

Has Pientka been kept sequestered because he’s actually a whistleblower who’s about to blow the lid off this entire case, once he’s finally allowed to go public what he knows?

Some of these questions will be answered after the Flynn sentencing hearing, which is still currently scheduled for Dec. 18. Thus far, it’s looking as if the special counsel has committed two serious infractions:

  1. They did not turn over exculpatory evidence before Flynn pleaded guilty and only did so when Sullivan specifically ordered them to do it, and,
  2. They have withheld Pientka’s original 302 form from Sullivan after he explicitly demanded access to it.

Either of these infractions would be serious enough to cause Sullivan to throw out this case.

And if that happens, if the Mueller special counsel prosecutors are caught engaging in misconduct such as this, you can be sure every other person they convicted or even brought a case against is going to demand a retrial and a Brady ruling on their own behalf.

Brian Cates is a writer based in South Texas and author of “Nobody Asked For My Opinion … But Here It Is Anyway!” He can be reached on Twitter at @drawandstrike.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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