Michael Flynn's defence team signalled Monday that it has enough evidence to file a motion "at the appropriate time" to dismiss the prosecution for "egregious government misconduct and in the interest of justice" amid growing controversy over the FBI and DOJ's handling of the retired lieutenant general's false statement case.
FBI Agents Manipulated Flynn 302
On 24 October, Powell, raised a red flag over the apparent manipulation of the general's FD-302 - a form used by FBI personnel to report or summarise the interviews that they conduct. According to the attorney, FBI agents made "substantial changes" to the Flynn 302.
She argues that, first, they added an unequivocal statement "Flynn stated he did not" – in response to the question whether he had asked Russian Ambassador Kislyak to vote in a certain manner in the UN. However, the agents' handwritten notes indicate that the general had not even recalled speaking to Kislyak on the issue.
Second, the agents added a phrase: "or if Kislyak described any Russian response to a request by Flynn" to which Flynn answered "no". However, neither the question nor the answer appeared in the FBI raw notes.
Furthermore, the general's legal team says that messages between then Deputy Assistant Director Peter Strzok – who conducted an interview with the general – and FBI lawyer Lisa Page on 10 February 2017 show that both were involved in editing the Flynn 302.
Included: new Page/Strzok texts.— Techno Fog (@Techno_Fog) 25 октября 2019 г.
Discussion between Lisa Page and Peter Strzok re: editing the Flynn 302.
Strzok to Page: "I made your edits"
Also discussion of misleading leadership re: picking up 302. pic.twitter.com/w5wuU3SwZh
Powell draws attention to the fact that neither Peter Strzok nor his counterpart, Joseph Pientka, who were sent by then FBI Deputy Director Andrew McCabe to question to Flynn, discerned any physical indications of deception on the part of the general. Similarly, the agents' raw notes do not say that Mr Flynn made the specific false statements to which he pled guilty, the attorney argues in her 4 November brief.
According to Flynn's defence, these and other facts are raising suspicions that the former national security adviser to President Trump was framed while his interview was nothing short of a fishing expedition kicked off by McCabe and his associates "to create a false statement case".
DOJ Got the Authors of the FBI Raw Notes Backwards
Meanwhile, Strzok and Pientka's handwritten notes have suddenly triggered further controversy: not only do they bear no signature or date (though they should under FBI rules) - they had remained "misidentified" for 18 months by the federal prosecutors, as it turned out on 5 November.
"We were informed that the notes we had identified as Peter Strzok’s, were actually the other agent’s notes (see Surreply, Exhibit 1), and what we had identified as the other agent’s notes were in fact Strzok’s notes (see Surreply, Exibit 2)", the DOJ's letter to Powell read.
So, let me get this straight. #VanGrack has given us false or wrong information in a federal court proceeding for 18 months, but @GenFlynn is supposed to be a #felon for a made-up "false" statement from an ambush interview #FBI had no legal basis to conduct?@realDonaldTrump pic.twitter.com/KA2uVWFyyg— Sidney Powell 🇺🇸⭐⭐⭐ (@SidneyPowell1) 6 ноября 2019 г.
The disclosure triggered a lively debate on Twitter and further scrutiny of DOJ's statements.
A Twitter user(s) and blogger(s) writing under the alias The Last Refuge compared Strzok’s handwriting in a form 990 that the agent signed as being filled out by himself and handwritten Flynn 302 notes which were "mistakenly" attributed to him the entire time. According to the blogger, the two samples of handwriting match each other perfectly.
2) Looking at the known (verified) Strzok handwriting:— TheLastRefuge (@TheLastRefuge2) 6 ноября 2019 г.
It clearly matches the notes that have been ID’d as Strzok’s the entire time.
Look specifically at upper case K’s. Upper case leading E’s. Lower and upper case Y’s.
you've got sharp eyes.— Stephen McIntyre (@ClimateAudit) 6 ноября 2019 г.
To illustrate, snips from documents. As LastRefuge observed, backwards-3 style observed in Strzok handwriting exemplar that he located is observable in the black detailed notes which were believed to be Strzok's, but now said by van Grack to be Pientka's. pic.twitter.com/cI63sv8wYE
Commenting on the matter, Powell tweeted: "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!"
It's now impossible to take #DOJ #FBI 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 https://t.co/PZUy380tHO— Sidney Powell 🇺🇸⭐⭐⭐ (@SidneyPowell1) 6 ноября 2019 г.
Where is the Original 302 Draft?
However, the attorneys prosecuting the general continue to insist that edits made to the Flynn 302 were largerly grammatical and stylistic. They have also so far refused to look into a potential original version of the Flynn 302, elaborating that if it exists "there is no reason to believe it would materially differ" from the other drafts. But the defence does not buy into this insisting that the FBI's Sentinel system "can retrieve any draft" which is "numerically serialised" when uploaded to the system.
Where is the original Flynn 302?— Techno Fog (@Techno_Fog) 4 ноября 2019 г.
"It is in the FBI's system" and DOJ lawyer (and Mueller Special Counsel) Van Grack has an obligation to "obtain it."
"Van Grack does not deny that such information is, in fact, available."
cc @KerriKupecDOJ pic.twitter.com/Z9SW9ljD9U
According to the general's legal team, it appears strange that the earliest draft of Flynn's 302 was issued on 10 February 2017, meaning that it took over two weeks for agents to prepare the document that is typically done within five days after an interview.
The paper mess related to Flynn's case triggers further questions: why, for example, did Strzok and Pientka not use voice recording while speaking to the general (which would have prevented the ongoing controversy); and why did the FBI discourage Flynn from notifying the White House counsel thus leaving him without a lawyer on hand during the interview, as former US attorney Andrew C. McCarthy remarked in his December 2018 op-ed.
The DOJ, that announced 30 August 2019 that Michael Flynn is ready for sentencing, is interested in concluding the case as soon as possible. It's up to Judge Emmet G. Sullivan at this point whether he allows for additional discovery or goes to sentencing, which he scheduled for 18 December 2019.
Flynn: First Trump's Aide Targeted by Russiagate Probe
On 24 January 2017, then Deputy Assistant Director Peter Strzok and FBI Special Agent Joe Pietka conducted an interview with Michael Flynn, who at that time was Trump's national security adviser. The agents questioned Flynn about his 22 December 2016 phone conversation with Russian Ambassador Sergey Kislyak. Earlier, on 22 January 2017, The Wall Street Journal reported that US counterintelligence agents had been looking into Flynn's communications with Russian officials as part of the US IC inquiry into the Trump campaign's alleged "collusion" with Moscow.
On 13 February 2017, Flynn resigned as national security adviser and on 1 December 2017 pleaded guilty to making "false statements" to FBI agents, dispatched by then FBI Deputy Director Andrew McCabe, about his talk with Kislyak. Flynn became one of the first Trump aides targeted by the IC Russiagate investigation which eventually found no evidence of collusion between the Trump campaign and Russia, according to Special Counsel Robert Mueller's March 2019 conclusions.