Two weeks ago, in addition to filing a supplemental motion to withdraw the guilty plea Michael Flynn had entered on December 1, 2017, Flynn attorney Sidney Powell filed a second motion seeking dismissal of the charge against President Trump’s short-tenured national security advisor, based on egregious government misconduct and in the interest of justice. Yesterday, the government responded to Flynn’s motion to dismiss based on prosecutorial misconduct, but failed to address two of the retired general’s strongest arguments.
In the Motion to Dismiss for Egregious Government Misconduct and in the Interest of Justice, Powell highlighted the evidence of misconduct revealed in the then just-released inspector general’s report on FISA abuse. While Powell hit many parts of the report, two aspects of it proved especially relevant to Flynn’s claims of government misconduct.
First, as Powell stressed, the IG report detailed Supervisory Special Agent 1’s (SSA 1’s) supervisory role in filing the four FISA applications for federal surveillance of Trump campaign associate Carter Page. Those applications, the IG report concluded, included more than 20 significant misrepresentations and omissions.
Ignoring the Court’s Order
SSA 1, who is broadly reported to be Joe Pientka, was also one of the two FBI agents—the other being the disgraced Peter Strzok—who interviewed Flynn on January 24, 2017, about his telephone calls with the Russian ambassador. Yet federal prosecutors failed to provide Powell details of SSA 1’s misconduct, or oversight of misconduct, until December 9, 2019, when IG Michael Horowitz released the report on FISA abuse.
In yesterday’s filing, the government countered that it had no obligation to provide Flynn this information because, at most, it constituted impeachment evidence which need not be provided to a criminal defendant prior to the entering of a guilty plea. But, as Powell told The Federalist, in their brief, the federal prosecutors continued to ignore the order Judge Emmett Sullivan entered more than two years ago.
Powell was referring to the December 12, 2017, standing order Sullivan issued directing “the government to produce to defendant in a timely manner – including during plea negotiations – any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.” That standing order, which Sullivan issues as a matter of course in all of his criminal cases, further directed the government, that, if it “has identified any information which is favorable to the defendant but which the government believes not to be material,” to “submit such information to the Court for in camera review.”
Evidence that the second lead agent involved in interviewing Flynn had engaged in misconduct in the FISA case against Page would seemingly qualify as favorable and material evidence, and thus be subject to production “in a timely manner.” Yet the government completely ignored the court’s standing order, both in regard to producing the material and in responding to Powell’s motion.
Spying on Flynn Without His Knowledge
Second, and more significantly, federal prosecutors misapprehended Powell’s argument about SSA 1’s participation in a briefing of then-candidate Trump and his then-campaign advisor Flynn. That private national security brief occurred on August 17, 2016, and as the IG report explained, the Crossfire Hurricane team selected SSA 1 to represent the FBI at the briefing in order to spy on Trump and Flynn.
But it was what SSA 1 told the IG that proves even more important to Flynn’s case. SSA 1 told Horowitz’s team that attending the briefing provided him “the opportunity to gain assessment and possibly have some level of familiarity with [Flynn],” such as learning “Flynn’s overall mannerisms.” SSA 1 went further, stating that “in this instance it actually proved useful because SSA 1 was able to compare Flynn’s ‘norms’ from the briefing with Flynn’s conduct at the interview that SSA 1 conducted on January 24, 2017, in connection with the FBI’s investigation of Flynn.”
As I explained shortly after the IG report broke, “this revelation is significant because former FBI Director James Comey testified to the House Intelligence Committee that the agents who interviewed Flynn ‘discerned no physical indications of deception. They didn’t see any change in posture, in tone, in infection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.’ Former FBI Deputy Director Andrew McCabe also confirmed that agents didn’t detect any deception in their interview with Flynn.”
Yet, until the release of the IG report, as Powell confirmed to The Federalist, Flynn’s legal team did not know that SSA 1 had previously assessed a baseline on Flynn. These facts would have been important for Flynn and his attorneys to know before the former national security advisor pleaded guilty, and likewise important for Flynn and his attorneys to know later, when Judge Sullivan first questioned him about whether he had pleaded guilty because he was guilty.
Government Switches Stories On Whether Flynn Lied
Powell argued that exact point in her motion to dismiss for egregious government misconduct, noting for instance, that the prosecution’s “suppression of this crucial Brady information—and his failure to disclose that SSA 1 had a ‘baseline’ read on Mr. Flynn—demands dismissal of this case.”
In yesterday’s response brief, government lawyers ignore Powell’s argument in total, reasoning instead: “The defendant’s claim that disclosure in the Report of SSA 1’s participation in the strategic intelligence briefing constitutes a Brady violation is likewise unavailing. The fact of the briefing is neither exculpatory nor impeaching. SSA 1’s participation in a briefing of the defendant in August 2016 has no impact on whether the defendant lied to SSA 1 five months later, on January 24, 2017. The defendant does not explain how SSA 1’s participation in a briefing with the defendant—five months before that defendant lied—had a ‘reasonable probability’ of changing his decision to plead guilty. The defendant thus fails to identify any Brady violations in conjunction with the release of the OIG Report.”
But it wasn’t the SSA 1’s mere participation in the intelligence briefing that is at issue: It was that during that briefing, SSA 1 assessed Flynn’s demeanor and then, according to SSA 1’s own statements to the IG, compared Flynn’s baseline to his behavior during the January 24, 2017, interview during which Flynn allegedly made false statements to the SSA 1.
Flynn makes clear in his supplemental motion to withdraw his guilty plea that prior to signing the plea agreement, he asked his attorneys whether the FBI agents who had interviewed him had thought he had lied, showing the importance of that question to his plea. That SSA 1 had judged Flynn’s demeanor before the fateful January 2017 interview and concluded based on that assessment that Flynn had not lied, was thus even more significant to Flynn’s decision to plead guilty.
Or, as Powell told The Federalist, SSA 1’s presence during the briefing of Trump and Flynn “magnified tenfold the importance of the agents’ later agreement that Mr. Flynn was honest with them on January 24, 2017. At a minimum, that disclosure should have been provided to Mr. Flynn long before Judge Sullivan asked him anything about his prior plea—in which case Mr. Flynn’s plea would have been withdrawn then.”
The question is whether Judge Sullivan will agree. If he does, what will be the result? It seems unlikely the longtime federal judge will toss the case outright, but we’re starting to see the development of facts that would justify tossing Flynn’s guilty plea. And we still have two more motions to withdraw to go.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.
Photo DoD photo by D. Myles Cullen/Released