Posted on 05/13/2020 6:33:07 AM PDT by Kaslin
The Michael Flynn case will soon be over. It began on Jan. 24, 2017, just four days into the Trump administration, when two FBI agents went to the White House to interview Flynn, then the brand-new national security adviser. Ignoring protocol, they questioned him about a phone call he had a few weeks before, during the transition, with Russian Ambassador Sergey Kislyak. By the end of the year, Flynn had pleaded guilty to lying to the FBI in that interview.
Now, the Justice Department has moved to drop the charges, and a judge will soon accept that decision. But before the Flynn matter recedes into history, there is more the public needs to learn about it. Specifically, the public needs to know more details about the way the FBI handled the politically sensitive case. And even more specifically, how do we know what Flynn said in that interview on Jan. 24?
In accordance with usual FBI practice, the interview was not recorded. The agents took notes during the interview and were supposed to return to the office to write up what was said. The writeup is a form known as the FD-302. FBI rules give agents five working days to finalize the document.
If someone is going to be charged with lying to the FBI, it will be on the basis of what is in the 302. There's no recording and there are no other witnesses in the room. If an interview subject claims not to have said something, the proof otherwise is the 302 and the agents' word. So the 302 is obviously critical if the Justice Department chooses to charge someone for lying in an FBI interview.
That's why it is important to know the tortured history of the Flynn 302. In the Flynn case, nothing worked as it should have. Nothing. It is believed that one of the two agents who interviewed Flynn, whose identity has, remarkably, never been publicly revealed but has been widely reported to be an agent named Joe Pientka, wrote a 302 shortly after the interview. That recollection, the freshest memory possible, is usually regarded as the most reliable version of what was said in the interview.
Here is the amazing thing: Michael Flynn's defense has never seen the original 302. Never. Flynn, under enormous pressure from Trump-Russia special counsel Robert Mueller, pleaded guilty to lying to the FBI without ever reading what Pientka originally wrote about the interview.
Instead, the FBI almost immediately began editing the Flynn 302. Pientka's partner in the interview, Peter Strzok -- remembered as the agent dismissed from the Mueller special counsel investigation for his anti-Trump texts with extramarital lover (and senior FBI official) Lisa Page -- took the lead. On Feb. 10, after the FBI's five working days limit expired, Strzok did what was apparently a major editing job on the Flynn 302, and he also incorporated edits suggested by Page, who had not been present at the interview. In a text message, Strzok said, "I was trying not to completely re-write the thing so as to save [REDACTED] voice." It's thought that the redacted name was Pientka's. The finished document was dated Feb. 14, 2017, which just happened to be the day after Flynn was fired by the White House.
But wait -- there's more. At the time all this was happening, top FBI officials did not think Flynn would be charged. Then-director James Comey told Congress exactly that in March 2017. The Flynn case, apparently, was put on the shelf. But then, on May 17, 2017, Trump-Russia special counsel Robert Mueller was appointed. The Flynn file came down off the shelf as Mueller's team looked for a way to exert pressure on Flynn to spill whatever he knew about some prosecutors' preferred theories of collusion.
And then -- Voila! -- came an all-new 302. In December 2018, as part of Flynn's sentencing, the public saw another document entirely. It was called the Flynn 302, but it was, in fact, a record of an interview of Strzok -- not Flynn -- conducted by another FBI official on July 19, 2017. Even then, after all the changes, it was hard to see the document as the basis of charges against Flynn.
"Throughout the interview, Flynn had a very 'sure' demeanor and did not give any indicators of deception," the 302 read. "He did not parse his words or hesitate in any of his answers. He only hedged once, which they documented in the 302. Strzok and [Pientka] both had the impression at the time that Flynn was not lying or did not think he was lying."
Is it any wonder why Republicans have had questions about the Flynn prosecution? Now, it appears to have come to nothing with the Justice Department's move to drop the case against Flynn. But even if Judge Emmet Sullivan, as expected, dismisses the charges, there are still things -- important things -- the public needs to know about the case. Like, what, precisely, was said during that fateful interview at the White House on Jan. 24, 2017?
That is a fact not in evidence.
later
A good summary for those who say “This was just what the FBI does all the time.”
“In accordance with usual FBI practice, the interview was not recorded. “
THIS IS CRIMINAL BEHAVIOR.
Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the First Amendment. ....
The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243
Even more damning in this case is what Ginsburg wrote in Greenlaw where she said:
“[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” (Scalia, J., concurring in part and concurring in judgment). As cogently explained:
“[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties.Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.
And Ginsburg continues in Greenlaw: This Court has recognized that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974)
So holdeth Ginsburg and her colleagues.
In this case, the United States has withdrawn from prosecution and sought to dismiss.
Much about the Flynn case still puzzles me, including Flynn’s thought process. He’s been in DC for many years, especially in the “intelligence community.” He already had enemies and was forced to retire from the Obama Admin in 2012. He should quite understand the viciousness of the swamp, no? He was how at the highest levels of the Trump Admin - couldn’t he imagine that he, and others, would be targeted by the Deep State? Why did he plead guilty, when he knew he did no wrong? What exactly was he threatened with?
Also, why on God’s green earth did he hire Eric Holder’s firm to defend him? They screwed him over a second time.
No kidding. The FBI is a thoroughly corrupt organization, pretty much top to bottom. I keep hearing about the 99% good FBI agents but how many came forward about the Russiagate BS? How many refused to do sway raids on harmless old men like Manafort and Stone? I am convinced there are very few good FBI agents.
My take is quite different than a lot of those who see Judge Sullivan’s minute order, inviting amici briefs, as spelling trouble for General Flynn. To understand where Judge Sullivan is coming from you have to understand where he’s been with regard to DOJ prosecutorial misconduct and corruption. The Flynn case is eerily similar to the Senator Ted Stevens prosecution. Both the Stevens and Flynn cases were handled by Judge Sullivan and both have now resulted in Justice filing a MTD due to prosecutorial misconduct. In Stevens, Judge Sullivan agreed that the misconduct was so egregious he held the prosecutors in civil contempt and appointed a court master to examine into the misconduct. One prosecutor killed himself before it was all over. He ultimately dismissed the Stevens case and civil contempt charges, likely thinking he had sent a sobering message to the DOJ to never commit fraud in the courtroom again. Unfortunately, the Flynn case only proves he was dead wrong and things only got worse. Keep in mind both Stevens and Flynn happened on Obozo’s watch. What can Judge Sullivan do now to address the deepening fraud and corruption in DOJ? As in Stevens, he certainly isn’t going to deny the MTD but he also certainly knows that the Justice Department has a systemic problem of the first order and is rotten to the core. The question is what is the remedy to straighten out a Justice Department whose corruption is evidenced by 2000 arrogant former employees being so brazen as to publicly chastise AG Barr over his condemning outlandish prosecutorial misconduct? This is not at all a question with an easy answer. That’s what is on the mind of Judge Sullivan.
All that means is that Flynn will eventually go free. But there is no “soon” there.
Excellent post! Thank you.
We all make mistakes. His was his overconfidence that he would have the power to overcome the deep state attacks, which he knew would come. And he might have, had he waited until Trump was actually in the office. He should have never let the FBI talk to him without a lawyer present. He sidn’t think he needed one.
“In the Flynn case, nothing worked as it should have. Nothing.”
Depends on whether you’re looking at it as a D’rat/MSM minion or as a patriot.
I hope you are right. However, the media has spun this as Judge Sullivan is refusing to dismiss the case and since Flynn pled guilty, yada yada yada.
I would feel better about it had he simply asked the government to fully detail a list of the documents and evidence not turned over to the defense per his multiple discovery orders.
This amicus stuff does not apply and cannot apply to his decision for the motion after the unanimous SCOTUS ruling. So why did he go there?
This amicus stuff does not apply and cannot apply to his decision for the motion after the unanimous SCOTUS ruling. So why did he go there?
In any case, I was hoping the Judge would retain jurisdiction so he could call the prosecutors that deceived his court and defied his Brady instructions.
We don’t yet know why the judge has taken the actions he has here, but not all roads lead to doom.
This amicus stuff does not apply and cannot apply to his decision for the motion after the unanimous SCOTUS ruling. So why did he go there?
_______________________________
You’re correct, but what it will do is draw out the identities of subverters, beyond the 2000 + that have publicly signed on to criticizing AG Barr.
We don’t yet know why the judge has taken the actions he has here, but not all roads lead to doom.
I do not disagree and posted something similar yesterday. Media on the left spins their way. Media on the right spins their way.
The Judge is the only one who knows why he is doing this and the matter remains in his courtroom as the strangest case imaginable.
Based on the motion to dismiss by DOJ, with overwhelming citations of law, I am not sure how/why those who oppose this can file legally coherent amicus briefs.
Who is the real criminal here?
Outside of those who watch MSDNC and CNN, the answer is obvious.
Byron states that FBI agents have 5 days following an interview to file the FD-302. The Flynn interview was held on January 24, 2017. So, Byron in flat-out wrong when he states the FD-302 was due on February 10, 2017.
Of course, five days after January 24th would be January 29th, NOT February 10th, as York states, which is more than TWO WEEKS after the interview.
THIS IS CRIMINAL BEHAVIOR.
Yes it is. It is evidence of criminal intent on the part of the FBI, and this criminal behavior is 'standard procedure' for the FBI. That's really all you need to know about the organization. It is, and always has been, a criminal enterprise.
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