Prosecutors handling the case of retired Lt. Gen. Michael Flynn have laid out their opposition to his request for the court to dismiss the case.
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.
OIG Report
The OIG report details how the FBI, in a counterintelligence investigation dubbed Crossfire Hurricane, withheld multiple pieces of evidence from the secret Foreign Intelligence Surveillance Court (FISC) and was thus able to obtain four surveillance warrants, three of which were renewals, to spy on former Trump 2016 campaign aide Carter Page. Two of the warrants have since been declared invalid and illegal by the Justice Department (DOJ).Flynn was among a number of targets in Crossfire Hurricane, which probed alleged collusion between the Trump campaign and Russia to sway the 2016 election. The investigation, taken over in mid-2017 by a special counsel, former FBI head Robert Mueller, was unable to establish any collusion.
The same top-level agent responsible for the Page warrants, Peter Strzok, then-deputy assistant director for counterintelligence operations, and supervisory special agent Joe Pientka, were the ones who interviewed Flynn.
Intelligence Briefing, Predication
Powell also pointed to the fact that the FBI sent Pientka in 2016 to a strategic intelligence briefing to the Trump campaign to snoop on Flynn. Powell called it an “intolerable breach of trust and deceitful conduct.”The prosecutors pointed out the OIG found this wasn’t misconduct on Pientka’s part.
The OIG, however, raised the issue as a matter of serious concern. Using a strategic intelligence briefing to snoop on a former head of military intelligence and presidential campaign adviser is likely an unprecedented move for the bureau.
As the prosecutors note, “The OIG recommended developing policy or guidance to address such briefings in the future.”
The prosecutors also noted that the OIG “concluded that the FBI had sufficient predication to open [a] full counterintelligence investigation” of Flynn.
This issue, however, is still being investigated by U.S. Attorney John Durham, who already has signaled he has more to say on the topic.
Original 302
Powell also criticized the fact that it took the FBI agents about three weeks to complete a report from the Flynn interview—the FBI form FD-302—even as FBI rules say it needs to be done within five days. Moreover, the first draft of the 302 provided to the defense was from Feb. 10, 2017—more than two weeks after the interview. Powell previously said she found a witness who saw an earlier draft of the 302 stating that Flynn was honest with the FBI.She alleges the draft was either destroyed or is being suppressed by the government.
Lobbying Papers
Powell has also argued that the DOJ rushed Flynn to file foreign lobbying paperwork for his defunct consultancy, Flynn Intel Group (FIG), in 2017 and then threatened to prosecute him for lying on the forms, even though they were “substantially correct in all material respects.”The prosecutors have argued that Flynn lied on the forms because he failed to tell his previous lawyers, who prepared the papers, about communications that Turkish officials had with Turkish businessman Kamil Ekim Alptekin regarding a job that FIG did for Alptekin’s firm in 2016.
Powell said Flynn didn’t lie to the lawyers and depended on them to do the paperwork properly. She pointed out that it wasn’t until December 2019 that prosecutors handed over a pile of documents, including reports from 2018 FBI interviews with Flynn’s former lawyers, that revealed the main prosecutor, Brandon Van Grack, knew the threatened lobbying paperwork charges against Flynn “were bogus,” Powell said.
The prosecutors say the interview reports weren’t helpful to the defense and, regardless, they provided them in time, since Flynn hasn’t been sentenced. They portrayed the lobbying paperwork as unrelated to Flynn’s plea, since he only pleaded to lying to the FBI and not on the papers.
Powell previously pointed out the main reason for the plea was the threat of a charge over the paperwork, since Flynn’s son also worked for FIG and the prosecutors worked out an under-the-table deal with Flynn to leave his son alone if he agreed to the plea.
