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A Chance at Exoneration for Michael Flynn?

A new motion by the former national security advisor’s attorney threatens to explode the government’s case.


- August 31st, 2019
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Michael Flynn’s new attorney, Sidney Powell, filed a motion on Friday formally accusing the government of hiding information that a judge ordered to be released in early 2018.

Powell’s motion came the same day the parties filed a status report that laid bare the breakdown between the parties. Flynn worked in the Trump transition effort after the election and briefly served in his administration as national security advisor. Flynn’s guilty plea in November 2017 for lying to federal investigators appeared to be an early victory for Special Counsel Robert Mueller’s team.

Judge Emmet Sullivan then ordered the special counsel’s office to produce “evidence [that] is material either to guilt or to punishment” ahead of Flynn’s sentencing. What followed was a seemingly interminable series of delays and continuances that puzzled the public as both parties seemed unable or unwilling to complete the Flynn plea agreement.

Why has the gap between this order and the sentencing which has yet to occur already been 18 months? The answer may lie in the incestuous relationships among the get-Trump forces that coalesced in the summer of 2016.

The Setup

A little background, first. Flynn was ambushed by a surprise interview on January 24, 2017, in which he was asked about conversations he had with the Russian ambassador during the presidential transition. The purpose of the interview was not to find out what Flynn said in those conversations because the government already possessed audio recordings of them. The government has since refused to turn over the recordings and transcripts to the defense in apparent contravention of the February order. It seems strange that the transcript that “proves” he lied is somehow not relevant to the judge’s order to the government to furnish all evidence of Flynn’s guilt and innocence. Shouldn’t a defendant be permitted to listen to the conversation he is alleged to have lied about before agreeing that he lied?

Because of the contradiction between what Flynn said in the interview and what he allegedly said on the secret tapes, he chose to plead guilty. His plea agreement required Flynn to admit he “impeded” the government investigation by making false statements to the interviewing agents. Flynn admitted he told the FBI agents that he did not ask the Russian ambassador to “refrain from escalating the situation” in response to December 28, 2016 sanctions imposed by the departing Obama Administration. He also told interviewers he did not recall a follow-up conversation with the Russian ambassador. The plea agreement called for Flynn to agree that both statements were untrue.

Keep in mind, the conversation between Flynn and the ambassador had nothing to do with the election and has never been charged as illegal conduct. By the time the conversation took place, Donald Trump was the president-elect and, in less than a month after the conversation, would be in charge of U.S. foreign policy.

Requesting Russian forbearance from retaliation pending the change in leadership is a perfectly legitimate request for a newly elected administration and consistent with U.S. interests. One might compare it to Hillary Clinton’s desire to “reset” relations with Russia as a way to make a fresh start with the new Obama administration.

Even the FBI concluded that Flynn did nothing wrong in his conversations with the Russian ambassador. The FBI interview was not intended to investigate anything. It was just a trap to catch Flynn in a factual discrepancy.

Judge Rudolph Contreras accepted Flynn’s plea on November 30, 2017. Since then, information has dribbled out that steadily eroded public confidence in the operation to ensnare Flynn. Here is a partial list:

The Text Messages

If you follow the Trump-Russia collusion case, you know that one of the agents who questioned Flynn during that fateful January 2017 interview was none other than disgraced former FBI agent Peter Strzok. Strzok’s evidence against Flynn would have been indispensable to reach a conviction at a trial. Yet Strzok is now known to have expressed extreme bias and animus against the incoming Trump Administration. As I noted elsewhere,  ABC News reported on August 16, 201,7 that Strzok left the Mueller team. But we didn’t know why at the time.

We learned the reason on December 2, 2017: “the transfer followed the discovery of text messages in which Mr. Strozk and a colleague reacted …in ways that could appear critical of Mr. Trump.”

Again, the story about Strzok’s texts broke just two days after Flynn entered his plea. These texts could have been devastating in cross-examination of Strzok if Flynn’s attorneys had known about them before agreeing to waive his right to a trial. Did the government tell Flynn about the discovery of the infamous Strzok-Page texts before he entered his plea? It appears not.

Powell’s motion complains that the government failed to “disclose the FBI Agent Strozk had been fired from the Special Counsel team as its lead agent,” and has continued to withhold some of the content of these texts in spite of the order to produce.

The Gap in the Recovered Text Messages

The Strzok-Page text messages contained a critical gap between December 15, 2016, and May 17, 2017. One does not have to be a conspiracy theorist to note that this gap coincides with the critical months between the immediate aftermath of the 2016 election and the appointment of the special counsel. It also includes the period when Strzok interviewed Flynn.

Recall that Mueller removed Strzok from his team in August 2017. We learned in a subsequent Justice Department inspector general’s report that the “DOJ issued iPhone previously assigned to Strzok had been re-issued to another FBI agent following Strzok’s departure from the SCO. The SCO obtained the iPhone from that individual and provided it to the OIG. OIG’s Cyber Investigations obtained a forensic extraction of the iPhone previously assigned to Strzok; however, this iPhone had been reset to factory settings and was reconfigured for the new user to whom the device was issued. It did not contain data related to Strzok’s use of the device.” This in spite of the fact that a member of the special counsel’s office “reviewed Strzok’s DoJ issued iPhone . . . and determined it contained no substantive text messages.” Based upon the long history of Strzok and Page exchanging text messages about their effort to “stop” Donald Trump, it’s simply not credible that there were no “substantive” text messages on the Strzok phone before it was wiped.

To complete the circle, we learned in the same OIG report, that the Page phone texts were similarly lost to a “reset to factory settings on July 31, 2017.” Page’s phone, unlike Strzok’s, was not reviewed for substantive texts. The FBI and the inspector general nevertheless have reassured the public, “the content of text messages exchanged between Mr. Strzok and Ms. Page did not appear to be a factor in their collection, or lack thereof. Further, the OIG did not find that the gaps in the collection were intentional on the part of the FBI or any FBI personnel.”

But the inspector general’s report does not explain why the special counsel office would bother reviewing Strzok’s phone if not to collect and preserve information relevant to the work Strzok did on the Russia collusion investigation. But we know from the inspector general’s findings that the special counsel’s office did review Strzok’s phone before returning it to be deleted and chose not to save any of the texts.

Powell’s motion specifically complains about this lapse leading one to infer that the government failed to disclose the loss of these texts to Flynn before he entered his plea.

Agents at the Time Didn’t Think Flynn Lied 

In order for Flynn to be guilty of a crime, he must have intended to lie to interviewing agents. In March 2017, Comey told members of Congress that, “the FBI agents who interviewed Flynn did not believe Flynn had lied, or that any inaccuracies in Flynn’s answers were intentional.” Was that information turned over to Flynn before he pleaded guilty?

But there’s another element to the offense that, though often overlooked, is nevertheless essential to charge somebody with lying to the FBI: The person speaking to the FBI must understand that the interview is a “matter within the jurisdiction of” the FBI—i.e., part of an investigation.

Lying to an FBI agent about something not under investigation is not a crime. Otherwise, you could go to jail for telling an agent, “No, those jeans don’t make you look fat.” Thus, it’s critical to know what Flynn was told about why the FBI agents were there to speak with him. To prove this, the government relies on proven liar Andrew McCabe, who had a personal grudge against Flynn.

It does not appear Flynn could have known that McCabe, an indispensable witness against him, was under investigation for lying to the FBI. It’s hard to imagine a better demonstration of the double standard in our justice system than the contrast between the treatment of McCabe’s lying to the FBI and that of the alleged Flynn lying.

Weissmann’s Puppet Strings

Perhaps the original sin of the special counsel was that the person really in charge of the investigation was never Robert Mueller.

As I noted here, Mueller could not have written or read (with comprehension) his own report. He lacked a basic understanding of the most simple of facts in the Russia collusion investigation and must have left the true leadership to somebody else. This means Andrew Weissmann was, in all likelihood, the true leader.

If true, this clearly violates the spirit and letter of the special counsel’s regulation requiring that the probe be run by an outsider. One can see why. The special counsel operates with the power of an unelected branch of government with an unlimited budget that can undermine the constitutional functions of a duly elected president. Thus, allowing a partisan to use the office as a base of operations can lead to . . . well, exactly what happened.

Weissmann was in on the ground floor of the collusion hoax. In the summer and fall of 2016, Bruce Ohr acted as a conduit between the Clinton campaign subcontractor Christopher Steele and the FBI. For reasons that remain unclear, Ohr briefed Weissmann on the Steele “research,” as it was unfolding in August 2016.

In Friday’s motion, Powell points out that “Weissmann and Ahmad,” another lawyer who would later join Mueller’s team, “were not in the DoJ chain of command to be informed by Mr. Ohr . . . [and] had no legitimate reason to be privy to his operations with FusionGPS and Christopher Steele.” Powell further complained that the government failed to disclose Weissmann’s involvement with Ohr in the early days of the investigation.

Problems with the Second FBI Agent Who Interviewed Flynn

Powell’s motion represents a new bombshell: “the second agent who interviewed Mr. Flynn along with former agent Strzok was Bruce Ohr’s contact with the FBI and conducted numerous debriefings of Mr. Ohr.” She goes on to suggest that this same unnamed FBI agent went on to join the special counsel’s team. If true, that would be another indication the Flynn interview was engineered as part of the larger project to get Trump.

The Mysterious Recusal of Judge Rudolph “Rudy” Contreras 

Just one week after Flynn pleaded guilty, the presiding judge was recused from handling the case. On March 16, 2018, the Washington Post reported on the following July 25, 2016 text message exchange between Lisa Page and Peter Strzok:

“I can’t imagine either one of you could talk about anything in detail meaningful enough to warrant recusal,” Page said to Strzok in one text, making an apparent reference to Contreras.

“Really?” Strzok replied. “‘Rudy, I’m in charge of espionage for the FBI.’ Any espionage [warrant request that] comes before him, what should he do? Given his friend oversees them?”

Strzok went on to add that a “social setting with others would probably be better than a one on one meeting.” The text exchange appears to suggest that Page and Strzok were angling to lobby the judge to help Strzok with a case.

Strzok’s plan to use a social gathering to influence Contreras is particularly alarming because, as the same Post article notes, “Strzok, with another FBI agent, interviewed Flynn about his conversations with Russia’s then-ambassador, Sergey Kislyak, during the transition.” Judges are not supposed to have secret meetings about “pending or impending” matters except as prescribed by law. One imagines that if Strzok’s hoped-for contact with Judge Contreras was legitimate, a more appropriate venue for a permissible contact would be a courtroom or the judge’s chambers, not a cocktail party. It should go without saying that there are no court reporters at cocktail parties to preserve the conversation for later review.

We have absolutely no indication that Contreras participated in any improper secret conversation with Strzok. Nor do we know that the judge knew about Strzok’s relationship to the case when he accepted the Flynn plea. Margot Cleveland wrote an analysis of the recusal which nevertheless leaves open the question as to why the recusal was necessary.

This leads to the next question: did Flynn have a right to know the underlying circumstances behind the recusal and, had he known, would he have still gone forward with the plea agreement?

Powell’s new filing calls to mind her important book, License to Lie, a journal of the government’s destruction of the accounting firm Arthur Andersen through a later discredited prosecution by (among others) Andrew Weissmann. One should also remember that the judge who replaced Contreras happens to be the same judge who caught the government framing Senator Ted Stevens. One hopes that the aggressive defense of Flynn by his attorney will give the Justice Department pause before taking out another “insurance policy” against an election result they don’t like.

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