Former National Security Adviser Michael Flynn seeks to formally withdraw his guilty plea, saying federal prosecutors breached their deal with him; insight from Michael Flynn’s attorney Sidney Powell.
“I did not lie to them.”
With those words in a declaration and supplemental motion filed Wednesday, former national security adviser Michael Flynn formally asked a federal judge for permission to withdraw his guilty plea for making false statements to two FBI agents in the White House back on Jan. 24, 2017.
In a sweeping argument that took aim at the bureau’s “outrageous” conduct, Flynn’s legal team highlighted a slew of information that has come to light since Flynn’s plea — including that no precise record of Flynn’s statements to the agents exists and that the original handwritten FD-302 witness report from the interview is “missing,” with subsequent versions later “edited” in some undisclosed manner by anti-Trump FBI officials.
Moreover, Flynn’s team maintained he had no reason to lie about his communications with the Russian ambassador concerning how the country should respond to sanctions imposed by the Obama administration, or a then-pending vote on Israel in the United Nations. After all, Flynn said, he knew federal officials routinely monitor, record, and transcribe” conversations like the ones he had with Russian diplomats.
Flynn’s argument found support in a Jan. 23, 2017, article in The Washington Post. Citing FBI sources, the Post’s article — published the day before Flynn’s interview with the FBI agents — directly stated that the bureau had listened in on his calls with the Russian ambassador and cleared him of criminal wrongdoing.
Additionally, it has emerged since Flynn’s guilty plea that the FBI officials who interviewed Flynn, anti-Trump agent Peter Strzok and “SSA [Supervisory Special Agent] 1,” have each been implicated by Department of Justice Inspector General (IG) Michael Horowitz in apparent misconduct and mismanagement in both the Flynn case and the Russia probe generally.
Strzok’s misconduct and anti-Trump bias are well-documented. The identity of SSA 1 is protected in the Flynn legal proceedings by a court order, but Fox News has identified the agent as Joe Pietnka, who moved last year from the Washington, D.C., area to San Francisco. Pientka briefly appeared on the FBI’s website as an “Assistant Special Agent in Charge” of the San Francisco field office late last year, according to the Internet archive Wayback Machine.
However, Pientka no longer appears on any FBI website after being removed shortly after Fox News identified him as the unnamed SSA in the IG report.
Pientka “played a much larger role in the FBI’s Crossfire Hurricane than the defense was led to believe,” Flynn’s attorneys wrote, referring to the probe into the Trump campaign.
Pientka, who oversaw the FBI’s efforts to monitor former Trump aide Carter Page, had “included false and incomplete information” and “failed to inform” the Foreign Intelligence Surveillance Act (FISA) court of “significant exculpatory information,” the attorneys argued, citing the IG report.
Horowitz further revealed that Pientka was part of an apparent undercover operation to essentially spy on the Trump campaign and Flynn during a routine intelligence briefing in August 2016.
Pientka’s “participation in that presidential briefing was a calculated subterfuge to record and report … anything Mr. Flynn and Mr. Trump said in that meeting,” Flynn’s lawyers wrote. Morever, the FISA court itself has rebuked the FBI as a whole, the filing noted.
Pientka “bore ultimate responsibility for four falsified applications to the FISA court and oversaw virtually every abuse inherent in Crossfire Hurricane — including suppression of exculpatory evidence,” Flynn’s team added.
The FBI has repeatedly refused to respond to Fox News’ request for clarification on Pientka’s status, even as Republicans in Congress have sought to question him.
The Flynn filing also slammed former FBI Director James Comey’s “bragging and laughing on national television about his own cleverness and violations of FBI/DOJ rules in dispatching agents to the White House to interview the President’s National Security Advisor.” (In 2018, Comey admitted on-air that sending agents to the White House was “something I probably wouldn’t have done or maybe gotten away with in a more … organized administration.”)
Flynn’s attorneys further asserted that his previous lawyers at Covington & Burling had “betrayed him” by advising that he plead guilty without providing adequate assistance of counsel. The Covington team was constitutionally deficient, and had not even informed him that the agents who interviewed him initially didn’t think he was lying and “saw no indication of deception,” Flynn’s lead lawyer Sidney Powell said.
Nor did the Covington attorneys alert Flynn that Special Counsel Robert Mueller was focusing on Foreign Agents Registration Act (FARA) violations — which created conflict of interest issues for Covington, which helped Flynn prepare his FARA filings. Even after government lawyers told Covington to tell Flynn about the issue, Covington “kept it all a secret” from Flynn and left him “defenseless,” without urging Flynn to seek independent counsel.
Powell provided the court a bombshell internal email from Covington lawyers discussing whether some of Flynn’s statements concerning FARA issues, which they advised him to admit were lies, were even made by Flynn at all.
Flynn acknowledged in his declaration Wednesday that, during that interview with the FBI agents and other conversations like it, his “baseline” tendency was to avoid unnecessarily divulging classified or sensitive information, and his answers may have seemed less definitive as a result.
However, the lawyers said, there was no explanation for why anti-Trump ex-FBI lawyer Lisa Page would be discussing inconsistent and alarming edits to Flynn’s FD-302 witness report.
“An objective view” of Pientka’s handwritten notes with the FD-302 [FBI witness report] of the January 24, 2017, interview of Mr. Flynn that Lisa Page instructed Agent Strzok to edit on February 10, 2017, reveals equally troubling ‘inaccuracies,’ ‘omissions,’ and ‘unsupported statements,'” Flynn’s lawyers said.
In December, U.S. District Judge Emmitt Sullivan had seemingly crushed Flynn’s hopes for ditching his guilty plea, saying that Flynn had waived his constitutional rights to obtain exculpatory information by pleading guilty.
Then, earlier this month, Flynn moved to withdraw his guilty plea for this first time — just days after the Justice Department reversed course to recommend up to six months of prison time in his case, alleging he was not fully cooperating or accepting responsibility for his actions.
Flynn’s lawyers argued that “because of the government’s bad faith, vindictiveness and breach of the plea agreement,” Flynn’s plea should be withdrawn. That led to Wednesday’s supplemental filing — and, perhaps, new life for Flynn’s defense team.