Luke Rosiak, DCNF
- Attorney Sidney Powell on Thursday asked a federal court to throw out the felony case against her client, former Trump national security advisor Michael Flynn.
- She said the government withheld evidence of misconduct in the FBI, including the infamous Peter Strzok-Lisa Page texts, until one day after he pleaded guilty in December 2017, and that contemporaneous notes from Flynn’s interview with Strzok contradict Strzok’s final report.
- Powell wrote that Pentagon official James Baker and former Obama Director of National Intelligence James Clapper may have had a role in the illegal leak to The Washington Post of a transcript of a call with a Russian ambassador.
Former national security advisor Michael Flynn’s attorney said in a court filing Thursday that the case against her client should be dismissed “for outrageous government misconduct” and that the court should “issue an order to show cause why the prosecutors should not be held in contempt.”
Attorney Sidney Powell wrote that FBI agent Peter Strzok changed his interview notes to purport that Flynn said things he did not, that a Pentagon official may have leaked evidence to the press with the involvement former Director of National Intelligence James Clapper, and that Department of Justice prosecutors have refused to turn over exculpatory evidence to the defense.
Flynn served as President Donald Trump’s first national security advisor. Four days after Trump’s inauguration, on Jan. 24, 2017, Strzok met with Flynn in what Flynn viewed as a meeting of two colleagues, but which Strzok was using as part of a criminal probe against him, the filing said. On Dec. 1, 2017, Flynn pleaded guilty to making false statements regarding his conversations with Russia’s ambassador, Sergey Kislyak.
The filing says that the government sat on explosive evidence about Strzok, former FBI lawyer Lisa Page and others in the bureau until the day after Flynn pleaded guilty.
“The day after Mr. Flynn’s plea, the press exploded with the news of Strzok and Page’s prolific text messages, their affair, and their malice toward President Trump,” Powell’s filing says. “The Inspector General issued a rare statement that he was investigating the entire matter.”
“Bruce Ohr, the fourth highest-ranking member of DOJ, was demoted,” the filing continues. “Judge Contreras, who accepted Mr. Flynn’s plea only days before, was suddenly and inexplicably recused—only for it to be disclosed much later that he was a topic of conversation in the Strzok-Page texts because he was a friend of Agent Strzok.”
“Not only did [prosecutor Brandon Van Grack] not disclose a single text message before Mr. Flynn agreed to plead guilty, but Special Counsel apparently managed to control the press on the issue until the plea was entered on December 1, 2017, in Judge Contreras’s court,” Powell wrote. “It defies credulity to suggest that it was only unlucky for Mr. Flynn that the story broke the very next day.”
Interview notes contradict later summaries, filing says
The basis for the false statements charge comes from an interview that was not audio recorded, even though anyone with a cell phone could have easily recorded it, Powell wrote.
Strzok did not take any written notes during the interview with Flynn, while a junior agent did, Powell wrote. Strzok later wrote lengthy notes after the fact. Eventually, Strzok summarized the interview in a 302, the official FBI form in which an agent memorializes an interview, which became the evidence for false statements.
“Yet, their own notes contradict the 302, [and] fail to support it at all in other ways,” Powell wrote.
“Notes by both agents state that Mr. Flynn does not remember making four to five calls to Ambassador Kislyak from the Dominican Republic, where he was on vacation, but that if he did so, it was because phone service was poor and he kept getting dropped,” Powell continued.
“The final 302 states the opposite: ‘Flynn remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues,’” the filing says. “This dramatically demonstrates the wrongheadedness of allowing a 302 to create a federal felony.”
“Two out of four of the alleged false statements in the Statement of Offense are based on what the agents claim Mr. Flynn said or did not say about the response of the Russian Ambassador on two separate issues. … The notes provide no support for a question or an answer about the Russian Ambassador’s response—either to the UN vote or the sanctions.”
Even how Strzok informed Flynn about the “nature” of the interview was misleading, Powell wrote. Flynn was told investigators were seeking to learn “the nature of any links between any individuals associated with the campaign and Russia,” but he “asked no question related to election interference or coordination between the campaign and Russia.”
Instead, he asked what Flynn had discussed with the Russian ambassador on the issue of sanctions and a United Nations vote — when Strzok already knew exactly what he said because the conversation had been wiretapped.
“The government is suppressing evidence of notes, reports, or recordings of the significant meeting the upper echelon of the FBI held to orchestrate the agents’ ambush of Mr. Flynn so as to keep him ‘relaxed,’” Powell wrote. “They purposely did not tell him they were investigating him and strategized at length to avoid raising any concerns. (‘Flynn was unguarded and clearly saw the FBI agents as allies.’)”
“Since January 2017, the government knew, but still has not disclosed the full statements and notes that show Deputy Attorney General Sally Yates said the interview of Mr. Flynn was ‘problematic,’ and she was ‘unclear’ why the FBI was investigating or interviewing Mr. Flynn at all,” Flynn’s attorney continued. “Neither Mr. Flynn nor his former counsel had any of these documents or knowledge of the plethora of information discussed above when Mr. Flynn entered his plea.”
Mysterious British letter
On Jan. 10, 2017, BuzzFeed published the dossier compiled by ex-British spy Christopher Steele, which alleged connections between Trump and Russia. The government also relied on the document to get a wiretap warrant on Trump associate Carter Page.
“A TON more out. . . We’re discussing whether, now that this is out, we can use it as a pretext to go interview some people,” Strzok texted.
Powell wrote in her filing: “In the next two weeks, there were ‘many meetings’ between Strzok and McCabe to discuss ‘whether to interview National Security Advisor Michael Flynn and if so, what interview strategies to use.’”
But in the meantime, an unclassified letter written by the United Kingdom’s National Security Advisor, Sir Mark Lyall Grant, was hand delivered on Jan. 12, 2017 to the incoming national security team in New York, Powell wrote, noting that “[p]rotocol dictates that it was also provided to the then active national security advisor—Susan Rice.”
“This was two weeks before the pretextual interview of Mr. Flynn, and it eviscerates the credibility of Christopher Steele whose false and unverified assertions mention Mr. Flynn and were used by the FBI to obtain illegal FISA warrants that likely reached the communications of Mr. Flynn,” the filing says.
Van Grack, the DOJ prosecutor, “knows about this letter, and he questioned people about it,” it continues.
On Jan. 12, 2017, Washington Post columnist David Ignatius wrote that “According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking.”
Powell suggests that Pentagon official James Baker may have committed the felony leak, possibly with the of Clapper, director of national intelligence.
“Baker is believed to be the person who illegally leaked the transcript of Mr. Flynn’s calls to Ignatius,” Powell wrote. “The defense has requested the phone records of James Clapper to confirm his contacts with Washington Post reporter Ignatius—especially on January 10, 2017, when Clapper told Ignatius in words to the effect of ‘take the kill shot on Flynn.’”
Former University of Cambridge professor Stefan Halper organized a February 2014 event at his college that Flynn attended while Halper was being paid by the Pentagon’s Office of Net Assessment. That event would later become the source of unfounded rumors that Flynn and a Cambridge academic, Svetlana Lokhova, had improper contacts.
“Flynn has requested the records of Col. James Baker because he was Halper’s ‘handler’ in the Office of Net Assessment in the Pentagon, and ONA Director Baker regularly lunched with Washington Post Reporter David Ignatius,” Powell wrote.
She added that prosecutors have refused to allow Flynn’s defense team to see transcripts of the calls, even though media had them.
On Feb. 10, 2017, media reports citing “senior intelligence officials” said that Flynn discussed sanctions with the Russian ambassador, contrary to what Vice President Michael Pence had said on television.
“Overnight,” the 302 was edited to add “an unequivocal statement that ‘Flynn stated he did not’” ask the ambassador to slow down a UN vote or vote in a certain way, Powell wrote. “This is a deceptive manipulation because, as the notes of the agents show, Mr. Flynn was not even sure he had spoken to Russia/Kislyak on this issue. He had talked to dozens of countries.”
“Second, they added: ‘or if KISLYAK described any Russian response to a request by FLYNN.’ That question and answer do not appear in the notes, yet it was made into a criminal offense. The typed version of the highly unusual ‘deliberative’ 302 by that date already included an entire section from whole cloth that also serves as a criminal charge in the Information and purported factual basis regarding ‘Russia’s response’ to any request by Flynn. The draft also shows that the agents moved a sentence to make it seem to be an answer to a question it was not.”
Prosecutors originally said that the 302 had been amended only to “remove a header” and then to remove the word “DRAFT,” the Powell’s filing says.
The edited versions were withheld for months, and one only came out after prompting by Flynn’s attorneys, Powell wrote. Prosecutors did not explain why they were not originally provided and “how they suddenly turned up” with “material differences.”
Prosecutors have still not produced the original 302, Powell said.
“The original 302 is not ‘missing.’ If the government will not produce it, it could only have been deliberately destroyed, and this prosecution should be dismissed on that basis alone,” she wrote. “Neither the FBI nor its Sentinel system loses the most important of its reports that is supposed to support the federal felony of the President’s National Security Advisor. The only reason for it to be suppressed is that it is favorable to the defense.”
Powell says that prosecutors have resisted the requirement to turn evidence over to the defense at every turn, at one point even sending a link to a Daily Caller News Foundation reporter’s web page instead of turning over the official files.
“Van Grack ‘produced’ the first batch on March 13, 2018, by link to texts already released to the public by the Senate Judiciary Committee. He produced the second batch on June 24, 2018, by link to the ‘Scribd account’ of reporter Peter Hasson. Those cannot even be downloaded. And for his third production, it gave the defense two pages on October 4, 2018. These go precisely to the issue of McCabe’s Special Counsel Lisa Page editing the Flynn 302.”
In one case, prosecutors sat on records and produced them only when they realized the records were about to come out via other means, she wrote.
Other potentially exculpatory evidence is being withheld from Flynn’s defense team by saying it is classified, the filing says. “The government cannot conceal its wrongdoing behind a claim of classification,” it says.
Powell said in September that the government is hiding a slew of records that would vindicate Flynn and that prosecutors are required to turn over exculpatory evidence. Van Grack argued that prosecutors have already provided all of the information they are required to.
In September, a judge reversed a jury decision and acquitted Flynn’s business partner Bijan Rafiekian on charges of illegally lobbying, in a case spun off from special counsel Robert Mueller’s investigation.
Powell argued for a similar result for Flynn himself.
“The FBI had no factual or legal basis for a criminal investigation, nor did they have a valid basis for a counter-intelligence investigation against an American citizen, and they all knew it. The evidence the defense requests will eviscerate any factual basis for the plea and reveal conduct so outrageous—if there is not enough already—to mandate dismissal of this prosecution for egregious government misconduct,” she wrote.
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