How The IG FISA Abuse Report...

The Federalist

How The IG FISA Abuse Report Affects Michael Flynn’s Case

‘Far too many in the FBI and DOJ are willing to hide evidence, falsify documents and make up crimes to achieve their objectives.’

Margot Cleveland

Monday’s release of Inspector General Michael Horowitz’s 476-page tome on the Department of Justice and FBI’s misconduct in the lead up to and aftermath of the 2016 presidential election continues to make news—and rightly so. That the DOJ and FBI obtained a surveillance order from a secret court to spy on Carter Page with a series of applications riddled with errors, fabrications, and inexcusable omissions of material fact is shocking. The shocking breadth of the government’s misconduct raises an interesting corollary question: How will Judge Emmet Sullivan react to these devastating revelations?

Sullivan has been hunkered down in his chambers for the last month contemplating (or drafting) his ruling on attorney Sidney Powell’s pending motion in the criminal case against her client, Michael Flynn. Flynn had pleaded guilty to making a false statement to the FBI before Powell took over as his defense counsel. Flynn’s sentencing was postponed to allow Powell to get up to speed in the case. Soon after, Powell filed a motion to compel federal prosecutors to turn over Brady material and other evidence that had been withheld from Flynn’s previous attorneys.

In briefing the motion to compel, in addition to arguing that the government improperly withheld evidence from Flynn, Powell also claimed that “[t]he FBI had no factual or legal basis for a criminal investigation, nor did they have a valid basis for a counter-intelligence investigation against an American citizen, and they all knew it. The evidence the defense requests will eviscerate any factual basis for the plea and reveal conduct so outrageous—if there is not enough already—to mandate dismissal of this prosecution for egregious government misconduct.”

Before Judge Sullivan had a chance to rule on Powell’s motion, though, federal prosecutors found themselves forced to inform the long-time federal judge “that for nearly three years, they had wrongly identified the authors of the handwritten notes taken by the FBI agents during their January 24, 2017, interview of then-National Security Advisor Flynn. Prosecutors had told defense counsel (and the court) that the notes written by Peter Strozk had been compiled by FBI Agent Joe Pietka, and those taken by Pietka had been written by Strzok.”

Then two weeks ago came another surprise: After having argued for months that there was no need to delay Flynn’s sentencing, federal prosecutors contacted Powell to suggest postponing the sentencing. Powell concurred and then the government filed a joint motion asking the court to cancel the upcoming sentencing briefing and hearings.

In the motion, the government presented two rationales for the delay. First, the parties noted that until the court ruled on the pending motion to compel, briefing would be premature. Second, and more significantly, the joint motion noted “that the Department of Justice’s Office of the Inspector General (OIG) is conducting an Examination of the Department’s and the FBI’s Compliance with Legal Requirements and Policies in Applications Filed with the US. Foreign Intelligence Surveillance Court Relating to a certain US. Person,” and stated that “the parties expect that the report of this investigation will examine topics related to several matters raised by the defendant.”

Now that the report is out, the question is how it will affect Flynn’s case. While the IG report focused mainly on the DOJ and FBI’s conduct related to the four Foreign Intelligence Surveillance Act (FISA) applications used to obtain an order to surveil Page, Horowitz’s investigation and findings raise two issues of import in the case against Flynn.

First and foremost is the extensive evidence of government misconduct and abuse the IG uncovered. The misconduct was so extensive and egregious that it can only remind Judge Sullivan of the prosecutorial misconduct he witnessed when he presided over the DOJ’s criminal case against the late Sen. Ted Stevens—an investigation and prosecution that Sullivan would later conclude was “permeated by the systematic concealment of significant exculpatory evidence…”

Soon after taking over Flynn’s case, Powell had evoked the Stevens’ prosecution as a comparator, but the IG report adds gravitas to her comparison. When asked about the effect of Horowitz’s report, Powell told The Federalist, “given the stunning lies and conduct by the FBI painfully documented in the report, I would expect Judge Sullivan—at a minimum—to order the production of everything we requested. Yet again, we see the DOJ learned nothing from the Ted Stevens case. Stronger action is required to impress upon the government a rejection of its reprehensible conduct.” Powell added that “far too many in the FBI and DOJ are willing to hide evidence, falsify documents and make up crimes to achieve their objectives—regardless of their motives.”

Before the IG report, Judge Sullivan might have put Powell’s claim of egregious prosecutorial misconduct down to “zealous advocacy.” But it is impossible to contemplate the Sullivan who tossed the Stevens’ case reacting with anything less than outrage to the recent revelations of misconduct. And while the IG report may seem only tangentially related to Flynn, most of the same bad actors were involved in both the Page and Flynn investigations.

Further, besides the general take-away from the IG report—that DOJ and FBI misconduct was widespread—one specific aspect of Horowitz’s report proves especially relevant to Flynn’s case, namely the fact that the FBI had assigned “SSA 1” to provide a security briefing to then-candidate Donald Trump after learning that Flynn would be present at the briefing. SSA 1 was a lead agent in the Crossfire Hurricane investigation and participated in the briefing as part of the FBI’s investigation.

While the IG report criticized the FBI for using a presidential-candidate briefing as an investigative tool, it is not that fact that proves significant. Rather, it is what SSA 1 told Horowitz’s team about his presence at this meeting. The purpose was, according to SSA 1, to take “the opportunity to gain assessment and possibly have some level of familiarity with [Flynn],” such as learning “Flynn’s overall mannerisms.”

SSA 1 added 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.” (The IG report does not identify SSA 1, but it has been reported that the second agent to interview Flynn—the first being Peter Strzok—was FBI Agent Joe Pietka.)

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.

So now we know that not only did the agents not detect any signs of deception when they interviewed Flynn, but that one of the agents who interviewed Flynn had a prior baseline meeting with the retired general to assess his “norms.” That same FBI agent compared Flynn’s conduct during the January 2017 interview to Flynn’s “norms,” and at the time concluded Flynn was not lying.

These facts would have been important for Flynn and his attorneys to know before the former national security advisor pleaded guilty. Further, even though Flynn has already pleaded guilty, shortly after Judge Sullivan took over the case, he ordered the prosecutor to turn over all Brady material, whether related to guilt or punishment. Given that, two years later, Powell is still fighting the government for evidence known to exist, it seems doubtful the prosecutors shared details or documentation of Pietka’s previous spying on Trump and Flynn and his assessment of Flynn’s demeanor during the briefing.

If that’s the case and if Powell did not receive Pietka’s report on Flynn’s conduct during the intel briefing, she might just want to file a new motion to compel. That would also provide the perfect opportunity to mention Horowitz’s findings—not that Judge Sullivan is likely to need any prodding to page through the IG report.

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.