The Justice Department rejected claims by retired Lt. Gen. Michael Flynn’s lawyers that the agency watchdog’s recent surveillance abuse report contained evidence that would justify dismissing the case against him.
Prosecutors argued on Wednesday that DOJ Inspector General Michael Horowitz’s Foreign Intelligence Surveillance Act abuse report bore “no relevance” to Flynn’s guilt.
“The errors and misconduct described in the OIG report … do not amount to ‘egregious government misconduct’ necessitating the dismissal of the charge against the defendant for making material false statements to the Federal Bureau of Investigation on January 24, 2017,” wrote Special Assistant U.S. Attorney Brandon Van Grack in a court filing.
Flynn’s defense team, led by former federal prosecutor Sidney Powell, argued in January that Horowitz’s report revealed Flynn had been unfairly targeted by the FBI.
“Even though the investigation pertains to the abuses of the FISA process, not the FBI and DOJ’s misconduct regarding Mr. Flynn, the IG report simultaneously documents at least some of [the] FISA process abuses and misconduct against Mr. Flynn,” Powell told the court. “The IG report is replete with exculpatory evidence that, had it been known to Mr. Flynn, he never would have pled guilty.”
Flynn, 61, pleaded guilty in December 2017 for lying to investigators in January 2017 about his conversations with Sergey Kislyak, who was at the time the Russian ambassador to the United States, but, early this year, he told the U.S. District Court in Washington, D.C., “In truth, I never lied,” and, “I am innocent of this crime.”
Powell said that “the case against Mr. Flynn should be dismissed immediately for this egregious abuse of power and trust” laid out in Horowitz’s findings.
She pointed to a part of the report that showed the intelligence briefing the FBI gave to Trump’s team in August 2016 during the presidential campaign was actually a “pretext” to gather evidence to help in the counterintelligence investigation into Trump’s campaign. The FBI agent who led that briefing, known as “SSA 1” in Horowitz’s report but believed to be FBI supervisory special agent Joseph Pientka, was the same official who accompanied FBI special agent Peter Strzok in their controversial interview of Flynn in January 2017.
“The fact of the briefing is neither exculpatory nor impeaching,” the Justice Department said Wednesday. “SSA 1’s participation in a briefing of the defendant in August 2016 has no impact on whether the defendant lied to SSA 1 five months later.”
Flynn’s defense team considered the January 2017 interview to be a setup by then-FBI Director James Comey and disputed the accuracy of the FBI interview notes from the meeting, claims the DOJ has rejected as “conspiracy theories.”
“From the FBI’s insertion of SSA 1 into the August 17, 2016, presidential briefing of candidate Trump and Mr. Flynn, to the former director of the FBI bragging and laughing on national television about his own cleverness and violations of FBI/DOJ rules in dispatching agents to the White House … everything about this prosecution has violated long-standing standards and policy for the FBI and the DOJ,” Powell said.
Horowitz’s report, released in December, identified at least 17 ” significant errors or omissions” in the DOJ and the FBI’s use of British ex-spy Christopher Steele’s salacious and unverified dossier when pursuing FISA warrants to wiretap Trump campaign associate Carter Page in 2016 and 2017. According to the FBI, four members of Trump’s campaign, including Flynn, were initially being scrutinized as part of the Trump-Russia inquiry. At the conclusion of his investigation, special counsel Robert Mueller did not establish a criminal conspiracy between the Trump campaign and the Kremlin.
The FBI never told Trump’s campaign about its fear that Russians might be attempting to infiltrate his campaign, but Horowitz said the bureau used an intelligence briefing to gather evidence against Trump and Flynn, and he criticized the FBI’s decision to use a defensive briefing in this way.
The Justice Department said on Wednesday that Horowitz’s report “does not allege that SSA 1’s participation in the briefing amounted to misconduct” and argued Flynn’s legal team failed to identify “any government misconduct in this case.”
Horowitz’s report stated, “We concluded that the FBI’s use of this briefing for investigative reasons could potentially interfere with the expectation of trust and good faith among participants in strategic intelligence briefings, thereby frustrating their purpose.”
As part of his plea deal, Flynn agreed to cooperate with Mueller, admitting, then reaffirming his guilt in 2017 and 2018.
Flynn filed to withdraw his guilty plea in January after the DOJ asked Judge Emmet Sullivan to sentence Flynn to up to six months in prison, though the Justice Department now says it believes probation would also be an appropriate punishment. The Justice Department has also changed its tune on sentencing for another Trump associate caught up in Mueller’s investigation: Roger Stone.
The sentencing hearing for Flynn scheduled for the end of the month was canceled by the judge amid legal battles over whether Flynn’s previous attorneys provided him adequate representation.