*Latest development- The U.S. Court of Appeals for the District of Columbia Circuit on Wednesday ordered the controversial lower court judge, Emmet Sullivan, to follow the law by dismissing the false statements case wrongfully brought by the original federal prosecutors who were either incompetent or corrupt — maybe both. The judges ordered Sullivan to approve the DOJ’s motion to dismiss the case against Flynn.
By Mark Hemingway at RealClearInvestigations
The Justice Department’s closing of its criminal case against President Trump’s former National Security Adviser Michael Flynn on Thursday came as new red flags emerged from recently released documents revealing the FBI’s handling of the matter.
Former FBI agents and federal prosecutors tell RealClearInvestigations that the documents show suspiciously irregular handling and editing of Flynn’s FD-302 form, the official document used to record what happens in FBI interviews. That form served as a key record used to charge Flynn with lying to federal agents. He pleaded guilty to that charge in December 2017 but had been trying to withdraw the plea, arguing, as his lawyer put it, that he was “deliberately set up and framed by corrupt agents at the top of the FBI.”
Since the documents were released last week, much attention has focused on a handwritten note by FBI counterintelligence head Bill Priestap in advance of the January 2017 interview with Flynn that would result in the retired lieutenant general being charged with lying to federal agents: “What is our goal?” Priestap asked, “Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
The new irregularities concern what happened after Flynn was interviewed by FBI agents Peter Strzok and Joe Pientka on January 24, 2017 – the interview in which Flynn was alleged to have lied about a December phone call with the Russian ambassador. FBI procedure is that one agent asks questions while another takes notes. Here, lead agent Strzok was the questioner and Pientka was responsible for memorializing the interview. After completing an interview, those notes are required to be organized and written up on an FD-302 form, which then becomes an official document used as evidence in an investigation.
FBI policy requires 302 forms to be submitted within five working days of an interview. The FBI took three weeks to deliberate on and compose Flynn’s 302 form, and it was mislabeled a “DRAFT DOCUMENT,” requiring a resubmission of the form three months later. A prosecutor working in the office of Special Counsel Robert Mueller, which eventually charged Flynn, was required to submit a separate document to a federal judge to explain that irregularity.
The new Flynn documents shed light on what happened during the unusual three weeks composing the 302. They include texts between Strzok and FBI lawyer Lisa Page, who were communicating extensively during an extramarital affair in which they revealed an anti-Trump bias resulting in their later dismissal from Mueller’s investigation.
In one text, dated February 10, Strzok tells Page he is heavily editing Pientka’s 302 form to the point he’s “trying not to completely re-write” it. Other messages reveal that Page, who did not attend the interview, reviewed the 302 form and made editing suggestions. On February 14, Page texts Strzok, “Is Andy good with the 302?” – presumably referring to FBI deputy director Andrew McCabe. The next day, February 15, the Flynn 302 was officially submitted and filed with the FBI.
FBI supervisors, however, are not supposed to rewrite other agents’ 302 forms. Nor are 302 forms supposed to be edited by FBI personnel who were not present at the interview, and both of these things happened in the Flynn case. “I’ve probably written in the close to the low thousands of 302s. I’ve probably supervised or overseen thousands upon thousands of more of those,” James Gagliano, retired 25-year veteran of the FBI and current CNN analyst, told RealClearInvestigations. “This is not how we do business as an FBI supervisor. I never, ever materially altered a 302.”
Former Special Agent Thomas J. Baker agreed: ”We never changed an agent’s 302. An agent would fight a supervisor who wanted him to change the 302, because it’s what that agent observed and heard and in his interview. So for us to read, what’s documented in this new material, that coming back from that interview with Flynn, which is a key event, that Peter Strzok said he virtually rewrote the whole thing – it damned them with their own words.”
Both former agents also expressed concern that Page, who was not present at the interview, was editing the 302 form against FBI protocol. “For [Strzok] to send that 302 to Lisa Page, a non-badge wearing, non-credential-having FBI agent, is unconscionable,” says Gagliano.
Baker said it was “not normal and suspicious” that it took three weeks for Pientka’s 302 form chronicling the Flynn interview to be filed. Gagliano also found the time delay concerning. “If the interview is on Monday, you better have that 302 uploaded on Friday. That’s a requirement. Now if you go outside of that, does that mean that there’s some skullduggery afoot? No, but you’re going to explain that in court,” Gagliano said. “A defense attorney worth his or her salt will make hay with that. ‘Hey agent Gagliano, you know what the requirement is in the Bureau, right? Why was this thing typed up seven days after the interview?’ And then you sit there hemming and hawing and a dead-to-rights case gets blown open because you didn’t follow a protocol.”
Even after the Flynn 302 was collectively written during the weeks-long delay in submission, the original wasn’t initially used in the case. Instead, Baker said, Mueller’s team submitted their own interview with Strzok “about his recollection of the interview with Flynn five or six months ago. Now that’s just bizarre.”
Eventually, the 302 was filed to the court in two versions, requiring a convoluted explanation about what had happened. In a cover letter to District Court Judge Emmet Sullivan dated December 17, 2018, Brandon Van Grack, a prosecutor on the Mueller probe, explained:
Pursuant to the Court’s Minute Order dated today, the government hereby files two redacted versions of the FD-302 report summarizing the FBI’s interview of the defendant on January 24, 2017. See Attachment. The content of both versions of the report is identical, except that the first version, which was digitally signed and certified in February 2017, inadvertently contained a header labeled “DRAFT DOCUMENT/DELIBERATIVE MATERIAL.” Once that error was recognized, the header was removed and a corrected version, omitting only the header, was re- signed and re-certified in May 2017.
Sol Wisenberg, a former federal prosecutor who served as deputy independent counsel during the Whitewater and Lewinsky investigation, says that Van Grack’s letter is “very embarrassing as a prosecutor. Forget about the five day rule, if it’s three weeks or a month, it’s just like, ‘What took you so long?’”
On Thursday, shortly before news broke that the Justice Department was dropping the Flynn prosecution, Van Grack submitted a request to withdraw from the team of federal prosecutors on the Flynn case. Van Grack’s withdrawal request also came amid allegations he had withheld exculpatory information from Flynn’s attorneys that was contained in the document dump the previous week.
Hovering over all these questions about what happened with Flynn’s 302 is the silence of Joe Pientka, the other agent who was present for the Flynn interview. The FBI rebuffed congressional requests to make him available for questions. The Bureau argued that because Pientka was assigned to the Mueller probe, interviewing him would interfere with the special counsel’s investigation.
However, the Muller probe concluded last year, and the new revelations are shining a spotlight on Pientka’s absence. On May 4, Republican Reps. Jim Jordan of Ohio and Mike Johnson of Louisiana sent a letter to FBI Director Christopher Wray demanding, among other things, that he make Pientka available for a transcribed interview regarding Flynn.
And other key lawmakers are determined to hold the FBI accountable for what happened in the Flynn case. “The FBI set up General Flynn — that is clear as day,” Rep. Devin Nunes, ranking Republican on the House Intelligence Committee, tells RealClearInvestigations. “There is FBI leadership ordering the case kept open when agents wanted to close it for lack of evidence, the discussion of getting Flynn to lie or trying to get him fired, the ambush interview, the withholding of exculpatory evidence, and many other acts of blatant malfeasance. None of this is standard procedure. It’s a naked abuse of authority.”
8:41 AM Eastern, May 8, 2020
An earlier version of this article misspelled the surname of a former FBI agent. He is James Gagliano, not Galiano.
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