Sidney Powell On Lack Of Predication In Flynn Case

Today, Michael Flynn's lead attorney, Sidney Powell filed

MR. FLYNN’S REPLY IN SUPPORT OF HIS MOTION TODISMISS FOR EGREGIOUS GOVERNMENT MISCONDUCT

I think we've all heard enough about government misconduct in this case, so what I'm going to do is paste in the first part, Section A, of the Reply. In Section A Powell stresses the total lack of predication for any investigation of Flynn at all. I'd dearly love to see this issue addressed forthrightly, because to me it's a fundamental due process issue. Most likely, if any ruling goes in Flynn's favor, this issue will be glossed over. I'm not aware of any precedent by which lack of predication itself could lead to dismissal, but in these political prosecutions the time has come. The opportunity for abuse is just too great and the standard that the government uses is just too vague. Read Section A and see what you think. I'd love to see Barr act on this, because he has addressed this problem in the past. No doubt he's trying to go step by step, but to me the government misconduct in even opening a case is very clear. I've inserted "SSA Joe Pientka" in place of "SSA 1.'

The part on predication doesn't begin until the end of Page 7. In the leadup to that, though, Powell makes an excellent point regarding the failure of the government to turn over information about the attendance of Pientka at a security briefing for Trump and Flynn. In the context, that fact was clearly Brady material--i.e., it was information that added force to the reported view of the interviewing agents that Flynn was being truthful and lacked an intention to lie. The whole point of Pientka's attendance at the meeting was to develop a familiarity with Flynn's personality for the purpose of later assessing his truthfulness.

Finally, I've included the entirety of this section because of the outrageousness that it documents.

A. SSA Joe Pientka’s Participation in a Presidential Briefing was Per Se Egregious Government Misconduct that the FBI has Prohibited as a Breach of Trust.

Page 6

Contrary to the government’s Response, the IG Report establishes that SSA Joe Pientka was chosen and inserted into the presidential briefing for the very purpose of collecting information on Mr. Flynn. IG Report at 340. This act was outrageous government misconduct that alone warrants dismissal of this prosecution.

A small group of FBI agents planned to interview Mr. Flynn, should Trump become President. The timeline and their statements and actions make that clear. They texted about the “insurance policy” on August 15, 2016;[#4] they opened the “investigation” on Mr. Flynn on August 16, 2016;[#5] and, by the next morning, SSA Joe Pientka was slipped into the presidential briefing because Mr. Flynn would be one of the three people attending for the Trump team. IG Report at 340. It is not possible to separate this evidence and information from SSA Joe Pientka’s later participation in the White House interview of Mr. Flynn, because he participated in the presidential briefing expressly for the purpose of collecting that information for later use in interviewing the subject, and he used it. IG Report at 408.

This is inextricably intertwined Brady material that Mr. Flynn was entitled to under this Court’s order—long before his scheduled sentencing on December 18, 2018. Information that both agents believed he was being honest with him, had “sure demeanor,” showed “no indications of deception,”[#6] and “was not lying or did not believe he was lying” would destroy an alleged “false [Page 7] statements” case. This is especially true when one agent had previously spent two hours with the “subject” in a different setting deliberately for the purpose of developing a baseline read, identifying his mannerisms, and noting his demeanor. IG Report at xvii (Executive Summary). SSA Joe Pientka is one of only two FBI Agents on which the government’s entire “offense” allegedly committed by Mr. Flynn depends. Only in December 2019, upon publication of the IG Report, did the defense learn of SSA Joe Pientka’s pervasive role in Crossfire Hurricane in general, and his numerous “serious performance failures” that infected the entire investigation. IG Report at 378. SSA Joe Pientka was responsible for numerous errors, omissions, or outright falsehoods that found their way into the original FISA application for Crossfire Hurricane. He was responsible for countless violations of the Woods procedures. He was the initial handler/conduit for all DOJ official Bruce Ohr’s nefarious meetings with FBI-paid-informant Christopher Steele—after Steele was terminated as any pretense of a legitimate FBI source. SSA Joe Pientka was also the conduit for transmission of thumbdrives from Nellie Ohr who was working at FusionGPS on the DNC and Clinton project that infected the FBI and DOJ throughout Crossfire Hurricane. IG Report at 282.

The IG Report identifies the only basis articulated for opening an investigation on Mr. Flynn as follows: “The opening EC for the Flynn investigation states that there was an articulable factual basis that Flynn ‘may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.’ The EC cross-referenced the predication for Crossfire Hurricane and stated that Flynn was an advisor to the Trump campaign, had various ties to state-affiliated entities of Russia, and traveled to Russia in December 2015.” IG Report at 60. Other than being advisor to the Trump campaign, the same could be said for countless loyal Americans, especially those who ever worked for the government, the military, or multi-national corporations doing business in or with Russia.

Page 8

Nothing in this statement provides an objective indicia of reasonable suspicion of any wrongdoing on the part of a distinguished thirty-three year veteran and former head of the DIA, with the nation’s highest security clearance—much less someone who briefed DIA on every foreign contact—as Mr. Flynn did before and after his trip to Russia or meetings with other foreign nationals. This EC was purely pretextual, and Mr. Flynn’s DIA file would demonstrate that. The FBI and SSA Joe Pientka ignored his DIA file just as agents ignored, “omitted,” and even altered the truth that Carter Page was working for the CIA. It remains to be seen what documents were altered and by whom as to Mr. Flynn—other than the 302 as we have already demonstrated. ECF No. 162 at n.22; ECF No. 129-2 at 10-12. It would be truly remarkable if SSA Joe Pientka’s numerous “serious performance failures” occurred only with respect to Carter Page and miraculously avoided spilling into Mr. Flynn’s case.

It strains credibility to suggest the FBI opened an investigation of Mr. Flynn on August 16, 2016, and prepared to place SSA Joe Pientka into the presidential briefing the next morning. First, ODNI had to approve the participation of SSA Joe Pientka in the briefing. Second, former FBI General Counsel James Baker said that decision was reached by consensus in discussions that included himself, former Deputy Director Andrew McCabe, Bill Priestap, possibly Lisa Page, and the Executive Assistant for the National Security Branch. IG Report at 341. That is a fair number of people to put in the loop for discussions in less than twenty-four hours, and they fully intended him to capture information for Crossfire Hurricane. Id. McCabe, of course, denied any recollection of these events. Id.

SSA Joe Pientka conceded that he was in the briefing on August 17, 2016, precisely because “the FBI viewed that briefing as a possible opportunity to collect information potentially relevant to the Crossfire Hurricane and Flynn investigations.” Id. at 340. He admitted that “one of the reasons [Page 9] for his selection was that ODNI had informed the FBI” that Flynn would be one of the three in attendance on behalf of the Trump campaign. Id. at 341. He said “the briefing provided him ‘the opportunity to gain assessment and possibly have some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview…I would have that to fall back on.’” IG Report at 341.

When pressed by the IG for more detail, SSA Joe Pientka said that his “assessment” meant: “[Flynn’s] ‘overall mannerisms. That overall mannerisms and then also if there was anything specific to Russia, or anything specific to our investigation, that was mentioned by him, or quite frankly we had an . . . investigation, right. And any of the other two individuals in the room, if they, any kind of admission, or overhear, whatever it was there to record that.’” Id.

He also confirmed that this “actually proved useful because SSA Joe Pientka was able to compare Flynn’s ‘norms’ from the briefing with Flynn’s conduct at the interview that SSA Joe Pientka conducted on January 24, 2017, in connection with the FBI’s investigation of Flynn.” Id. Accordingly, there can be no serious dispute that SSA Joe Pientka’s collection of information from Mr. Flynn on August 17, 2016, was inextricably intertwined with his interview of Flynn on January 24, 2017. SSA Joe Pientka admitted it to the IG. Id.

Strzok was primarily responsible for preparing SSA Joe Pientka and “providing him with instruction on how to handle the FBI’s portion of the ODNI strategic intelligence briefings, but others also assisted, including the Intel Section Chief and possibly Lisa Page.” Id. at 342. “[H]e and Strzok created the briefing outline together, and he prepared himself through mock briefings attended by Strzok, Lisa Page, the Intel Section Chief, and possibly the OGC Unit Chief.” Id. The OIG chief also reviewed the briefing outline that he and Strzok prepared. It is difficult to imagine all this activity occurring in the few hours from the time the Flynn file was opened on August 16, 2016, [Page 10] until the briefing on the morning of August 17, 2016. The briefing lasted two hours, and although SSA Joe Pientka’s portion of it was only approximately thirteen minutes, he remained for the entire briefing to collect information.

SSA Joe Pientka told the IG: “About a week after the briefing, SSA Joe Pientka communicated separately with the OGC attorney and Strzok about whether to formally document the briefing. There was agreement that he should. ... given the ‘[b]ig stakes’ involved, it was important to document the interaction with the subject of an FBI investigation so that there was a clear record of what was said.” IG Report at 343. He recorded his report in an Electronic Communication (“EC”) that included comments by Mr. Flynn and information that “may not have been relevant at the time he recorded it, but might prove relevant in the future.” Id. It was uploaded into the FBI Sentinel system on August 30, 2016. Id. at n. 479.

The evidence that SSA Joe Pientka was inserted into a presidential briefing because Mr. Flynn was attending, to “gain assessment and possibly some level of familiarity with [Flynn]” and to have something to “fall back on” in the event the FBI decided to interview Mr. Flynn directly, ECF No. 160-2 at 33, is evidence that was favorable and material to Mr. Flynn’s defense since the day it happened. IG Report at 341. It was material to Mr. Flynn’s defense every day from January 24, 2017, to the day this Court entered its Brady order, ECF No. 20, and it was material for every day of the 305 days from the time this Court entered that order until Mr. Flynn appeared before this Court on December 18, 2018, ostensibly to be sentenced.

Had Mr. Flynn been sentenced that day, he would have been serving time while Mr. Van Grack hid this extraordinary information that not only magnifies by ten the importance of SSA Joe Pientka’s assessment of Mr. Flynn’s honesty but also evinces an unprecedented act of investigatory intrusion into a trusted presidential briefing. The transfer of information, the exchanges of questions and [Page 11] answers that can occur, and the effectiveness of this process rely on an expectation of trust and good faith among the participants. The FBl's use of such briefings for investigative purposes potentially interferes with this expectation and could frustrate the purpose of future counterintelligence briefings. Id. at 409. There has been widespread outrage over this violation. The truth is that were it not for the IG Report, Mr. Flynn still would not have this exculpatory information which also evinces outrageous government conduct per se and even more so in conjunction with its suppression for two years. 

#4 U.S. Department of Justice (DOJ) Office of Inspector General (OIG), A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election at 404 (June 2018) https://www.justice.gov/file/1071991/download.

#5 U.S. Department of Justice (DOJ) Office of the Inspector General (OIG), A Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation, Oversight and Review Division Report 20-012 Revised (December 2019)
https://www.justice.gov/storage/120919-examination.pdf (hereinafter, “IG Report”).

#6 ECF No. 133-2 at 4.