By Petr Svab
Lt. Gen. Michael Flynn, a former adviser to President Donald Trump, expects he will file a motion asking a federal judge to dismiss the case against him, said Flynn’s lawyer, Sidney Powell, in an Oct. 24 court filing.
The development marks yet another twist in the story of the intelligence professional whose accomplished life was turned upside down after he agreed to become Trump’s national security adviser.
Flynn pleaded guilty on Nov. 30, 2017, to one count of lying to the FBI. He’s been expected to receive a light sentence, including no prison time, after extensively cooperating with the government on multiple investigations.
In June, however, Flynn seemed to suddenly go on the offensive, hiring a new legal team that includes Powell, a former federal prosecutor who wrote the bestselling book “Licensed to Lie: Exposing Corruption in the Department of Justice.”
Powell has since mounted an argument that exculpatory information has been withheld from Flynn or was provided late, and the prosecution should thus be dismissed. She has further alleged that the FBI had no legitimate reason to begin investigating Flynn.
She’s requested dozens of pieces of evidence that she says “would defeat the factual basis for the [guilty] plea” and “will reveal the investigation and prosecution were unprecedented in their motivation, tactics, and overreach.”
The Oct. 24 motion appears to be the first time that Powell has spelled out that Flynn “expects to file” a motion to have his case thrown out (pdf).
Flynn has had a distinguished career in the military, particularly in military intelligence, during more than three decades in the Army, including five years in combat zones.
“Mike Flynn’s impact on the nation’s War on Terror probably trumps any other single person,” wrote then-Brig. Gen. John Mulholland in Flynn’s 2007 performance review. Mulholland called Flynn “easily the best intelligence professional of any service serving today.”
At the time, Flynn headed intelligence at the Joint Special Operations Command.
“I have trusted my life to Mike Flynn and would do so willingly again today,” said retired Army Col. Timothy Kiely, in a letter of support for Flynn. “He is quite simply the finest soldier and leader with whom I’ve had the honor to serve and is unquestionably one of the finest men I know.”
In 2012, Flynn was appointed the head of the Defense Intelligence Agency (DIA). He resigned two years later and went on to give a series of media interviews, in which he criticized the Obama administration for a lack of comprehensive strategy in the Middle East.
He joined the campaign of then-candidate Trump in 2015 and later became Trump’s national security adviser.
On July 31, 2016, the FBI officially opened a counterintelligence investigation into Russian efforts to interfere in the 2016 presidential election. As part of that probe, the FBI singled out four people associated with Trump “to see if there was any connection between those four Americans and the Russian interference effort,” former FBI Director James Comey told congressional investigators (pdf).
One of those persons, it appears, was Flynn. The final report of former special counsel Robert Mueller (pdf), who took over the FBI probe in mid-2017, said that the FBI had opened an investigation on Flynn, “based on his relationship with the Russian government.”
Incessant leaks to the media about Flynn’s supposed suspicious ties to Russia escalated to some media commentators accusing him of “treason.”
“The accusations were a stake through the heart of a 33-year Army veteran who wrote a blank check on his life for five years in active combat in devotion to our country,” Powell said.
Flynn never should have been put in the FBI crosshairs, she says. FBI counterintelligence operations aren’t allowed to snoop on Americans unless those Americans are suspected of being foreign agents, which means “purposefully engaging in clandestine activities on behalf of a foreign power,” where “it is probable that these activities violate federal criminal law,” she said in the filing.
Flynn was of the opinion that the United States and Russia need to work together whether they like it or not, especially to fight terrorism.
A number of media outlets made much of his giving a paid interview in Moscow in 2015 at an anniversary event for the Russian state-backed news channel Russia Today (RT).
But there was no evidence that Flynn did anything illegal, much less knowingly gather intelligence for Russia, Powell said. He was briefed by the DIA before and after the RT event. The briefings, however, haven’t been provided to the defense, Powell said.
Unsubstantiated rumors were also spread about Flynn having inappropriate contacts with Svetlana Lohkova, a British historian of Russian origin. But those were seeded by the FBI’s own informant, Stephan Halper, Lohkova alleged this year in a defamation lawsuit against Halper.
Calls With Kislyak
After the 2016 election, Flynn handled outreach to foreign leaders for Trump’s transition team. He said he made calls to representatives of possibly dozens of countries.
On Dec. 22, 2016, Flynn made multiple calls to different countries, regarding Egypt’s resolution at the U.N. regarding Israeli settlements in the West Bank and East Jerusalem. One of the calls was to Russian Ambassador to the U.S. Sergei Kislyak. According to his statement of offense, Flynn asked for Russia to abstain from or delay the vote on the resolution. His request went unanswered, and the resolution passed nearly unanimously, with only the United States abstaining.
On Dec. 28, 2016, Kislyak sent a text message to Flynn asking for a phone call, but Flynn was vacationing in the Dominican Republic and said he didn’t see the message until the next day.
On Dec. 29, 2016, then-President Barack Obama announced the expulsion of 35 Russian diplomats in retaliation for election meddling. Flynn first discussed the issue with others in the transition team and then called Kislyak back. Flynn said they went over several topics and, according to the statement of offense, Flynn asked for Russia to not further escalate the situation regarding the sanctions and only respond in a reciprocal manner. Russia responded by delaying its retaliation by several months.
It’s not clear what exactly Flynn told Kislyak during the calls. Judge Emmet Sullivan told the prosecutors in May to hand over any tapes and transcripts of the calls, but they refused.
Powell decried that Flynn was denied the transcript, yet somebody managed to leak about it to the media.
The first journalist to report on Flynn’s Kislyak calls was The Washington Post’s David Ignatius.
In a Jan. 12, 2017, column, Ignatius claimed that Flynn “cultivates close Russian contacts” and suggested his call to Kislyak may have violated the Logan Act, a 1799 law that prohibits Americans from talking to foreign governments “in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.”
This was a paper tiger, according to Powell, since the Logan Act has virtually never been enforced. Only two people have ever been charged under it, the last one in 1852; neither was convicted.
The involved DOJ and FBI officials “all knew there was no Logan Act violation,” Powell said.
Indeed, prosecutors later acknowledged that no Logan Act violation was part of Flynn’s plea bargain.
At the time, however, Ignatius’s column seemed to rattle the Trump team.
Just two days prior, BuzzFeed published the Steele dossier, a collection of unsubstantiated claims that Trump colluded with Russia to sway the election.
As it was later revealed, the dossier was put together by former British spy Christopher Steele, who held a strong animus toward Trump. He was paid for the job by the Democratic National Committee and the campaign of Trump’s presidential opponent, former Secretary of State Hillary Clinton.
Flynn was one of those tarred by the document, and the narrative pressed by the media, that he was doing something illegal with Russia, put him under intense pressure.
In an effort to “kill” the Ignatius story, Flynn said, he had the campaign put out a response that he didn’t discuss the sanctions with Kislyak at all; the claim was later repeated by Vice President Mike Pence.
By Flynn’s later admission, this wasn’t true. But lying to the media isn’t a crime per se.
Still, the FBI added his denials to the Logan Act narrative.
According to the Mueller report, the Russia investigation team “believed that Flynn’s calls with Kislyak and subsequent denials about discussing sanctions raised potential Logan Act issues and were relevant to the FBI’s broader Russia investigation.”
The same narrative was at the time pushed by unnamed sources leaking to the media.
Over the next two weeks, then-FBI Deputy Director Andrew McCabe held many meetings with Peter Strzok, then-deputy associate director for counterintelligence operations, discussing whether to interview Flynn and how to go about it, Powell said.
The deliberations culminated in a Jan. 23, 2017, meeting of top FBI officials.
“I can feel my heart beating harder, I’m so stressed about all the ways THIS has the potential to go fully off the rails,” McCabe’s then-special counsel, Lisa Page, texted her paramour, Strzok, that morning.
It seemed the DOJ wasn’t on board with interviewing Flynn.
Then-Deputy Attorney General Sally Yates “candidly opined that the interview ‘was problematic’ and ‘it was not always clear what the FBI was doing to investigate Flynn,’” Powell said.
Strzok said that Yates “was not happy” to learn of the interview and that then-Principal Associate Deputy Attorney General Matthew Axelrod also argued with then-FBI General Counsel James Baker about the interview (pdf).
Still, the FBI went ahead.
Among those present for the Jan. 23 meeting were McCabe, Baker, Trisha Anderson (Baker’s deputy), Page, then-FBI Associate Deputy Director David Bowdich, Strzok, and then-second Deputy Associate Director for Counterintelligence Operations Jen Boone, according to Page’s recollection.
They “strategized” a way to talk with Flynn to keep him from realizing “that he was being interviewed in a criminal investigation of which he was the target,” Powell said.
That same day, The Washington Post ran a story with sources it didn’t identify, claiming there was no active investigation on Flynn and no evidence of his wrongdoing in his calls with Kislyak.
The next day, at 12:30 p.m., McCabe called Flynn to ask whether two agents could stop by in two hours and talk to him. He told Flynn it was better if he didn’t have any of the White House lawyers present.
That was extraordinary. Then-FBI Director James Comey later acknowledged it was only due to the chaos of changing administrations, four days after Trump’s inauguration, that he could get away with slipping two agents into the West Wing to interview the president’s top adviser alone.
Flynn was “relaxed and jocular” and “clearly saw the FBI agents as allies,” according to Strzok’s description. Strzok said he led the interview, while his partner, Supervisory Special Agent Joe Pientka, was taking notes.
It’s not clear what exactly was said during the interview. Pientka scribbled down only about 500 words, less than a three-minute read. Strzok submitted somewhat more detailed notes, though still less than a five-minute read. Powell questioned whether Strzok actually wrote them during the interview.
Strzok appeared full of emotion the night after the interview.
“Describe the feeling, nervousness, excitement knowing we had just heard him denying it all, knowing we’d have to pivot into asking. Puzzle round and round about it. Talk about the funny details. Remember what I said that made Andy [McCabe] laugh and ask if he really said that,” he wrote to Page.
An FBI 302 report summarizing the interview was supposed to be filed within five days. But the earliest draft Flynn’s lawyers were provided was from Feb. 10, 2017—more than two weeks after.
It took five more days to finalize the report. By that time, Flynn had already been fired by Trump for lying to Pence.
Such a “prolonged ‘deliberative process’ … is not even appropriate for a 302,” Powell said.
Powell asserted at least one 302 draft was produced prior to Feb. 10 and scoffed at the idea that it was “missing,” since this was “the most important interview the FBI did” and neither the bureau nor its digital document system “loses the most important of its reports that is supposed to support the federal felony of the President’s National Security Adviser.”
“If the government will not produce it, it could only have been deliberately destroyed, and this prosecution should be dismissed on that basis alone,” she said.
The final 302 says that Flynn denied making requests to Kislyak regarding the UN vote and the expulsion of Russian diplomats. The handwritten notes seem to confirm that.
But the 302 also claims that Flynn lied about Kislyak getting back to him with Russia’s responses. There’s no such thing in the notes, Powell said.
Moreover, the 302 says that, “Flynn remembered making four to five calls” to Kislyak from the Dominican Republic. Both pairs of notes, however, say that he didn’t remember.
“I don’t remember making 4–5 calls. If I did lousy place to call,” Strzok’s notes say.
“If so, don’t remember. If so, lousy place to make phone calls,” Pientka’s say.
Lying to the FBI is criminal, but only if the lies are “material,” meaning they actually pertain to the investigation.
The FBI said that Flynn’s denials were, but Powell disagreed.
She pointed out that the agents asked nothing about the Russian election interference and nothing about any coordination between Russia and the Trump campaign. As for Flynn’s calls with Kislyak, his denials made no difference because the FBI had the transcripts of the calls anyway.
“The agents knew there was no criminal intent or any crime in his conversations. … Comey and McCabe were executing their own agenda—not investigating a crime,” Powell said.
Just as Flynn lost his White House job, the Justice Department was pressuring him to file additional foreign lobbying paperwork for his already defunct consultancy, Flynn Intel Group (FIG).
The firm, founded in 2014, only ever did one paid job and even that one was left unfinished. Flynn shuttered FIG after the election.
In the summer of 2016, FIG was hired by Ekim Alptekin, a Turkish businessman and former chair of the Turkey-U.S. Business Council, to do research and lobbying focused on an Islamic cleric living in exile in Pennsylvania, Fethullah Gulen. Gulen runs a group that Turkish President Recep Tayyip Erdogan blamed for an attempted 2016 coup.
The lobbying job, in the end, produced two things: one phone call by Flynn’s then-business partner Bijan Rafiekian to then-Rep. Dana Rohrabacher (R-Calif.) and an op-ed published in The Hill on Nov. 8, 2016, arguing for Gulen’s extradition, although Rafiekian and Flynn said the op-ed wasn’t part of the job.
FIG first registered under the Lobbying Disclosure Act, which covers lobbying for foreign commercial clients. But after the op-ed, the DOJ was pushing FIG to also register under the Foreign Agents Registration Act (FARA), which requires more-thorough disclosures and covers lobbying for foreign governments or lobbying that principally benefits a foreign government.
On Feb. 14, 2017, David Laufman, the DOJ’s then-counterintelligence chief who oversaw the FARA section, personally called Flynn’s then-lawyer, Robert Kelner, to push for FIG’s FARA registration.
Kelner and two others from his law firm had an extensive meeting with six members of the FARA section, including Heather Hunt and Laufman, “to decide how to write the registration and review a draft, and they had a follow-up call with them,” Powell said. Kelner noted he had never seen the FARA section “this engaged.”
In the end, Flynn paid more than $1 million in legal fees to Kelner to prepare and later defend the FARA papers—more than twice what FIG got from Alptekin. He also had to sell his house.
In May 2017, the Russia probe was taken over by Robert Mueller. In a secret memo, Mueller also was authorized to investigate a number of cases with no relation to Russia, including FIG’s FARA filings.
Strzok seemed at first reluctant to join the Mueller team.
“I hesitate, in part, because of my gut sense and concern there’s no big there there,” he wrote to Page.
In the end, he joined, pondering “a chance to DO” and work on “a case which will be in the history books … maybe the most important case of our lives.“ Was it “an investigation leading to impeachment?” he mused in one text.
Page seemed even more reluctant, but in the end joined too, after repeated encouragement from Strzok.
In the early morning of July 26, 2017, the home of Trump’s former campaign chairman, Paul Manafort, was raided. Twelve FBI agents reportedly rushed in with weapons drawn and patted down his wife before she was allowed to get out of bed.
Two days later, the DOJ collected Flynn’s phone and computer. Around that time, he was told that he would be indicted for violating FARA, according to Powell. That was unusual. Not only was the DOJ remarkably involved in FIG’s FARA papers, but FARA violations are almost never prosecuted—only seven cases in more than 50 years.
The pressure escalated in October 2017, when Mueller obtained from then-Deputy Attorney General Rod Rosenstein authorization to include Flynn’s son, who had a newborn at the time, in the FARA case, according to Powell’s filing.
“If the elder Flynn is willing to cooperate with investigators in order to help his son … it could also change his own fate, potentially limiting any legal consequences,” NBC News reported on Nov. 5, 2017, referring to unnamed sources.
Flynn may have been under the impression that if he wouldn’t cooperate, he, and even his son, could get the Manafort treatment.
In the second half of November 2017, Flynn agreed to be questioned by the Mueller team for five days.
Only then, on Nov. 22, did prosecutors give Flynn’s lawyer the final 302 from the Jan. 24 interview.
On Nov. 29, Flynn met with the Mueller team again and, after extensive talks, agreed to plead guilty to one count of lying to the FBI. But in late afternoon the next day, shortly before Flynn put pen to paper to sign his plea, one of Mueller’s prosecutors, Brandon Van Grack, called Flynn with a terse disclosure:
Prefacing that he had “no legal or ethical obligation” to provide this information, he said that “one of the agents who interviewed Mr. Flynn” sent “electronic communications” that “showed a preference for one of the presidential candidates.” The DOJ’s Inspector General (IG) was looking into whether this constituted misconduct by the agent, Van Grack said.
This “was painfully short of the bombshell of truth that exploded in the national news only one day after Mr. Flynn’s plea,” Powell said.
Unbeknownst to Flynn’s defense, the IG informed Mueller about the Page-Strzok text messages in mid-June 2017, Powell said. Around the same time, Page left the Mueller team, later saying she only joined temporarily to begin with.
The texts revealed that both Page and Strzok held strong animus against Trump, cursing at him, calling him names, and passionately rooting for him to lose the election and for Clinton to win. Strzok eventually was fired because of the texts.
The texts struck at the heart of the Flynn case.
“Michael Flynn … would have faced no legal jeopardy at all if he just wouldn’t have pleaded guilty, because they would have never gotten a conviction with Peter Strzok as their star witness,” Rep. Matt Gaetz (R-Fla.), who sits on the House Judiciary Committee, later told Fox News.
Powell questioned how long the media were aware of the texts and why The Washington Post only broke the news one day after Flynn entered his plea in court.
The texts were supposed to be crucial “Brady” material, meaning information helpful to the defense that the government is obliged to provide, but the prosecutors only released them to Flynn after they were released publicly.
“Mr. Van Grack ‘produced’ the first batch [of the texts] on March 13, 2018, by link to texts already released to the public by the Senate Judiciary Committee,” Powell said. “He produced the second batch on June 24, 2018, by link to the ‘Scribd account’ of reporter Peter Hasson. Those cannot even be downloaded.”
Powell slammed the prosecutors for withholding this and other information, saying their “‘disclosures’ were so limited, misleading, untimely, or deliberately trivialized as to render them meaningless—and in some instances, outright deceitful.”
“The government’s tactic of disclosing information because it had made its way into the news and the internet is tantamount to no Brady disclosure at all,” she said.
Some texts haven’t been given to the defense yet, she said, even though they have apparently been leaked to the media.
On Sept. 14, 2018, for instance, CNN reported that Strzok wrote to Page on Jan. 10, 2017: “Sitting with Bill watching CNN. A TON more out. … We’re discussing whether, now that this is out, we can use it as a pretext to go interview some people.”
Strzok was apparently referring to reporting on the Steele dossier, which was published that day.
“The government has not produced this text and others around it, in a stunning violation of Brady and this Court’s order,” Powell said.
In December 2018, just as Flynn was nearing his sentencing, prosecutors in the Eastern District of Virginia charged Rafiekian and Alptekin with acting as unregistered foreign agents and other related charges stemming from the FIG job. Alptekin doesn’t live in the United States and is unlikely to face the trial unless extradited. Rafiekian, a former board member of the U.S. Export–Import Bank, decided to fight the charges.
Flynn repeatedly asked for his sentencing to be delayed, saying he wanted to wait until the Rafiekian case was over since he was expected to testify. But when the prosecutors asked him to say that he signed FIG’s FARA papers knowing there were lies in them, he refused, saying he only learned of the falsities in hindsight.
That “prompted a heated tirade from Mr. Van Grack,” Powell said in a previous court filing.
The prosecutors called off Flynn’s testimony and instead wanted to brand Flynn a co-conspirator, putting Flynn Jr. on the witness list as well.
In the end, however, the prosecutors in the Rafiekian case didn’t include any testimony from the Flynns. The prosecution didn’t think Flynn’s testimony “would be of any use” to the jurors, Assistant U.S. Attorney James Gillis said during his July 22 closing statement.
The judge in the Rafiekian case, Anthony Trenga, acquitted Rafiekian on Sept. 24.
Judge ‘Should Dismiss’
“In its relentless pursuit of Mr. Flynn, the government became the architect of an injustice so egregious it is ‘repugnant to the American criminal system,’” Powell said, asking the judge to make the prosecutors explain why they shouldn’t be held in contempt of court.
Sullivan “should dismiss the entire prosecution for outrageous government misconduct,” she concluded.