Lawyers for Lt. Gen. Michael Flynn argue that some information revealed in the recent report by the Justice Department’s watchdog should have been disclosed to Flynn in 2018 or earlier. The prosecutors’ failure to do so warrants dismissal of the case against Flynn, they said in a Feb. 18 court filing (pdf).
Flynn, former national security adviser to President Donald Trump and former head of military intelligence during the Obama administration, pleaded guilty on Dec. 1, 2017, to one count of lying to FBI agents during a Jan. 24, 2017, interview.
Both FBI agents who interviewed Flynn, then-Deputy Assistant Director for Counterintelligence Operations Peter Strzok and Supervisory Special Agent Joe Pientka, “had the impression at the time that Flynn was not lying or did not think he was lying,” Strzok later said, according to FBI records (pdf).
Flynn asserts the government failed to disclose to him important related information.
The Justice Department’s Inspector General (IG) reported on Dec. 9, 2019, that Pientka, identified as Supervisory Special Agent 1 (SSA 1), had a prior and extraordinary opportunity to assess Flynn’s behavior.
On Aug. 16, 2016, the FBI opened a counterintelligence investigation on Flynn, saying there was “articulable factual basis that Flynn ‘may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.’”
The investigation was part of a broader probe, dubbed Crossfire Hurricane, into the Trump campaign’s supposed collusion with Russian efforts to sway the 2016 election. No such collusion has been uncovered.
There was no “articulable factual basis” against Flynn, his lawyers argue, calling the investigation “purely pretextual.”
Flynn had some Russian connections, but “the same could be said for countless loyal Americans, especially those who ever worked for the government, the military, or multi-national corporations doing business in or with Russia,” the lawyers said.
There was no “objective indicia of reasonable suspicion of any wrongdoing,” they said, noting that Flynn is a “distinguished thirty-three-year veteran … with the nation’s highest security clearance,” who briefed the Defense Intelligence Agency (DIA) on every foreign contact, including those in Russia.
The IG didn’t find the predication for the Flynn investigation improper, but also noted how low the bar is for opening an investigation based on current FBI internal rules.
U.S. Attorney John Durham, who is leading a criminal probe into the government conduct related to the Russia investigation, issued a rare statement voicing disagreement with some of the IG’s “conclusions as to predication and how the FBI case was opened.”
The morning after opening the Flynn case, the FBI sent Pientka to a presidential briefing that should have immunized the Trump campaign against foreign intelligence threats. But Pientka’s role was actually to observe Flynn.
“The FBI viewed that briefing as a possible opportunity to collect information potentially relevant to the Crossfire Hurricane and Flynn investigations,” the IG report stated.
Pientka told the IG that the briefing provided him “the opportunity to gain assessment and possibly have some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview … I would have that to fall back on.”
Pientka said he was to familiarize himself with “[Flynn’s] overall mannerisms” and, the IG wrote, this “actually proved useful because SSA 1 was able to compare Flynn’s ‘norms’ from the briefing with Flynn’s conduct at the interview that SSA 1 conducted on January 24, 2017.”
This information was useful to the defense and should have been provided to Flynn before he agreed to his plea or at least before his originally scheduled sentencing on Dec. 18, 2018, Flynn’s lawyers said.
“This extraordinary information … not only magnifies by ten the importance of SSA 1’s assessment of Mr. Flynn’s honesty but also evinces an unprecedented act of investigatory intrusion into a trusted presidential briefing,” the lawyers said.
The prosecutors’ failure to provide the information warrants dismissal of the case due to government misconduct.
“The truth is that were it not for the IG Report, Mr. Flynn still would not have this exculpatory information which also evinces outrageous government conduct per se and even more so in conjunction with its suppression for two years,” the lawyers said.
‘Serious Performance Failures’
The lawyers also emphasized that Pientka was implicated in serial failures that led to illegal spying on former Trump campaign adviser Carter Page.
The IG found 17 serious errors in four surveillance warrants the FBI took out on Page, another Crossfire Hurricane target. Inspector General Michael Horowitz told Congress he didn’t find the FBI’s explanation for the causes of the errors satisfactory. He left open the possibility the failures were caused by political bias, though he said he didn’t find “documentary or testimonial evidence” of it.
Pientka was identified by the IG as one of the agents responsible for at least some of the “serious performance failures.”
“It would be truly remarkable if SSA 1’s numerous ‘serious performance failures’ occurred only with respect to Carter Page and miraculously avoided spilling into Mr. Flynn’s case,” Flynn’s lawyers noted.
Flynn was expected to receive a light sentence after extensively assisting the Justice Department with multiple investigations.
In June 2019, however, he fired his previous lawyers from the firm Covington and Burling and hired a team led by Sidney Powell, former prosecutor and critic of misconduct at the Justice Department.
Flynn has since asked for the court to prompt the government to hand over a plethora of information deemed by him exculpatory. The court shot down the request. Flynn then asked the district judge, Emmet Sullivan, to allow him to withdraw his plea and to dismiss the case for government misconduct and “in the interest of justice.”
In a Feb. 12 court filing, the prosecutors argued that the misconduct Flynn alleges doesn’t exist, was already rejected by the court, or isn’t related to Flynn’s offense.