Flynn Formally Asks Judge to Dismiss Case Against Him

Then-national security adviser to President Donald Trump, Lt. Gen. Michael Flynn, arrives to a swearing in ceremony of White House senior staff in the East Room of the White House in Washington on Jan. 22, 2017. Andrew Harrer-Pool/Getty Images

Michael Flynn asked a federal judge on Jan. 29 to dismiss the case against him, after having telegraphed to the court for months that he was planning to make the move.

Flynn’s lawyers say prosecutors failed to give the retired three-star U.S. Army general a plethora of exculpatory information and the case should thus be dismissed, “for outrageous government misconduct and in the interest of justice.”

“This factually and legally baseless ‘investigation’ and prosecution of Mr. Flynn has no precedent ... everything about this prosecution has violated long-standing standards and policy for the FBI and the DOJ,” the court filing says (pdf), listing a lineup of extraordinary circumstances that led to Flynn pleading guilty on Dec. 1, 2017, to one count of lying to the FBI.

On Jan. 14, Flynn asked District Judge Emmet Sullivan, who is overseeing the sentencing, to allow him to withdraw his plea.

Flynn was formerly the national security adviser to President Donald Trump; he also headed the Defense Intelligence Agency during the Obama administration.

On Jan. 24, 2017, four days after Trump’s inauguration, then-FBI Deputy Director Andrew McCabe called Flynn to ask if two agents could stop by to talk to him. Within two hours, Peter Strzok, then-deputy assistant director for counterintelligence operations, and Supervisory Special Agent Joe Pientka entered the White House.

Between the two agents, they took several pages of handwritten notes. Within five days, they should have produced a report from the interview: an FBI 302 form.

Yet, the earliest 302 draft provided to Flynn’s defense was from Feb. 10 and it had taken another five days before McCabe approved it.

Based on the 302, prosecutors got Flynn to affirm that he had lied to the agents by denying that he made two requests in December 2016 to then-Russian Ambassador to the U.S. Sergei Kislyak. One request was for Russia to not escalate the situation after President Barack Obama expelled dozens of Russian diplomats. The other was for Russia to abstain from or delay a United Nations vote on Israeli settlements. There was nothing illegal about either request, since, as a member of the transition team, it was Flynn’s job to communicate with foreign officials regarding the incoming administration’s positions.

Flynn’s current lead lawyer, former federal prosecutor Sidney Powell, has said that Flynn didn’t lie. She said he only pleaded guilty because prosecutors at the time didn’t give him exculpatory information, they exerted pressure on him and his family, and because his previous lawyers had a conflict of interest that prevented them from advising him properly.

While it’s possible that what Flynn told the agents didn’t quite match what the FBI knew from wiretaps of Kislyak’s calls, Flynn didn’t intentionally lie, Powell has said.

On Jan. 16, Powell revealed she has a witness who saw an earlier draft of the 302, one not provided to the defense, which “did, in fact, say that Flynn was honest with the agents and did not lie.”

Powell now says that further exculpatory information was revealed in the Dec. 9, 2019, report by the Justice Department’s Office of the Inspector General (OIG).

The report delved into the FBI’s counterintelligence investigation of the Trump campaign, dubbed “Crossfire Hurricane,” and particularly a Foreign Intelligence Surveillance Act (FISA) warrant taken out by the FBI against Trump 2016 campaign volunteer Carter Page.

The OIG concluded that the warrant and its three subsequent renewals contained “at least 17 significant errors or omissions,” saying the errors and other issues constituted “serious performance failures by the supervisory and non-supervisory agents.”

The supervisory agent on the case was Pientka, who reported to Strzok.

In Powell’s view, Flynn was supposed to be told about Pientka’s role in the Page warrants, two of which have since been determined to be invalid by the Justice Department. This information was useful to Flynn’s defense, Powell said, because it mirrored allegations that Flynn was making against Pientka in his case.

Just as the OIG attributed to Pientka numerous “inaccuracies,” “omissions,” and “unsupported statements” in the FISA warrants, Powell alleges that the Flynn 302, “reveals equally troubling ‘inaccuracies,’ ‘omissions,’ and ‘unsupported statements.’”