Flynn Case Prosecutors Mixed Up Evidence, Prompting Rebuke From His Lawyer

By Petr Svab
Petr Svab
Petr Svab
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.
November 6, 2019 Updated: November 6, 2019

The prosecutors handling the case of Lt. Gen. Michael Flynn said they mixed up notes from the FBI interview that served as a basis for making Flynn plead guilty to lying to the FBI, a court filing shows.

“It’s appalling. What else have they gotten wrong?” responded Flynn’s lawyer Sidney Powell, in a Nov. 5 Fox News interview.

The two sets of notes were written by the FBI’s former deputy associate director for counterintelligence operations, Peter Strzok, and supervising special agent Joe Pientka.

The handwritten notes are a crucial part of the case against Flynn, the former head of the Defense Intelligence Agency under President Barack Obama and former national security adviser to President Donald Trump.

Powell previously questioned whether Strzok’s notes were written during the interview since they were much more detailed, and also because Strzok himself said he led the interview, while Pientka was primarily responsible for taking notes.

Then, on Nov. 5, the prosecutors informed Powell that they had it wrong. They said Strzok’s notes were Pientka’s and vice versa.

“We understand that this has caused some confusion, and we regret our error,” they said in an email, which was filed with the court that day (pdf).

Powell pointed out on Twitter that the prosecutors maintained the error for some 18 months since the notes were first disclosed to the defense.

“It’s now impossible to take [the DOJ’s and FBI’s] word for anything. Imperative now more than ever that all original documents be produced—the entire FBI file & subfiles—handwriting samples of both agents, metadata, audit trail—everything! This is ridiculous & case should be dismissed,” she wrote in another tweet.

The error wasn’t easy to uncover, as neither note was signed or dated, even though, as Powell previously noted, they should have been under FBI rules.

Dismissal Versus Plea Withdrawal

Powell, a former federal prosecutor, has accused the government of withholding exculpatory information from Flynn and lacking a proper reason to investigate Flynn in the first place. The prosecutors disagreed, but the notes episode plays into Powell’s argument that the judge shouldn’t take the government at its word.

The prosecutors capitalized on Flynn’s pleading guilty almost two years ago and repeatedly telling the court that he didn’t wish to withdraw his plea.

Powell said “there’s already far more than enough to overturn the plea deal,” but that Flynn wants to force prosecutors to hand over a trove of documents related to his case and then have the case dismissed for government misconduct.

“We want the American people to see the whole truth about what happened here,” she said.

One of Powell’s complaints was that the FBI 302 report, a summary of Flynn’s Jan. 24, 2017, interview, contained statements that weren’t supported by either set of notes. At least one of these added statements formed part of the basis for the charge against Flynn.

Moreover, the earliest draft of the 302 given to the defense is dated Feb. 10, 2017, even though the report was supposed to be done within five days of the interview based on FBI rules.

Powell has argued that the entire investigation of Flynn, based on his supposed “relationship” with Russia, was politically motivated in order to “take out” President Donald Trump.

Petr Svab
Petr Svab
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.