Remarks: So why did the Special Counsel’s Office charge Flynn when he didn’t lie to the FBI, the FBI agents didn’t think he lied, and even if they had been false the statements were immaterial to any legitimate investigative purpose? FBI Agent Barnett told U.S. Attorney Jensen the answer: “the Special Counsel Office pursued Flynn simply as a means to ‘get Trump.’” But Americans never heard the answer because a dishonest corporate media buried the story—just as they buried the truth that Michael Flynn is an innocent man. FULL STORY HERE: https://www.4cmitv.com/2020/12/03/2020-nov-30-trumps-michael-flynn-pardon-is-only-the-beginning-of-the-justice-this-nation-deserves/
THE FEDERALIST HEADLINES: Trump’s Flynn Pardon Only Begins The Justice This Nation Deserves
On Wednesday, President Trump pardoned an innocent man. Just before Thanksgiving, he signed an executive grant of clemency that provided Michael Flynn a full pardon and ended the criminal case against the retired lieutenant general.
Yet justice has not been served. And it may never be served. Justice for Michael Flynn requires something our country no longer possesses: an honest press.
Justice for Flynn requires the public to understand how the Obama-Biden administration, political appointees, career employees, special counsel attorneys, and a federal judge sought to destroy a war hero’s life to wreak revenge on Flynn for his service to Trump—and with a hope that Flynn’s demise would trigger Trump’s destruction. Justice for Flynn requires that those involved in this scandal be the object of public scorn.
The corporate media has refused to tell Americans the truth, so I will. And the damning facts go much beyond the evidence U.S. Attorney Jeff Jensen, whom Attorney General William Barr charged with investigating the prosecution of Flynn, discovered. Here are six key aspects of the Flynn case the press buried that expose the travesty of justice heaped upon Flynn.
1. Special Counsel Threatened Flynn’s Son to Extract a Guilty Plea
When President Trump announced he was pardoning Flynn, the media took refuge in Flynn’s prior guilty plea to continue branding Flynn a criminal.
Yes, Flynn pleaded guilty to lying to the FBI about his conversation with the Russian ambassador. When Judge Emmet Sullivan took over the case after Flynn pleaded guilty, Flynn stood by that plea when Sullivan questioned him.
But pleading guilty to a crime you didn’t commit isn’t a crime, and the evidence the special counsel’s office buried has established that is exactly what Flynn did: He pleaded guilty to lying to the FBI in violation of Section 1001 while innocent of the charge.
Lying to the FBI constitutes a crime under Section 1001 only if the person making the statement knows the statement is false and the false statement concerns a material fact. Although in pleading guilty Flynn stated he knew his Jan. 24, 2019, statements to FBI Agents Peter Strzok and Joe Pientka about his conversation with the Russian ambassador were false, in moving to withdraw his guilty plea, Flynn maintained his innocence and professed that he “did not lie to them” and “believed I was honest with them to the best of my recollection at the time.”
An uninformed public is likely to discount such a recantation, especially when the press continues to push the “Flynn twice pleaded guilty” narrative and ignores the since-revealed details explaining why Flynn would plead guilty to a crime he did not commit.
As Flynn tells it, the week before he pleaded guilty, his attorneys at the time, Robert Kelner and Stephen Anthony, told Flynn that if he did not plead guilty his son, Michael G. Flynn, “could or would face indictment.” Also, on Nov. 30, 2017—the day before he pleaded guilty—Flynn’s former lawyers assured him that if he “accepted the plea, [his] son Michael would be left in peace.”
Flynn’s former attorneys later again reminded him of the threat to his son shortly before he appeared for the first time before Judge Sullivan. “Stay on the path,” his former attorneys counseled Flynn, because otherwise the government would “drag [Flynn’s] son back into the crosshairs.”
The public need not take Flynn’s word about the threats to target his son—emails from his lawyers confirm these facts. “We have a lawyers’ unofficial understanding that they are unlikely to charge Junior in light of the Cooperation Agreement,” one email read.
A second email likewise corroborated Flynn’s claim, while also suggesting prosecutors were intentionally hiding the Flynn Jr. deal to avoid “having to reveal it to other defendants against whom Flynn senior might testify.” Disclosing such impeachment testimony is constitutionally mandated by the Giglio court decision.
“The government took pains not to give a promise to [defendant Flynn] regarding Michael Jr., so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against whom MTF may one day testify,” Flynn’s former attorney explained in another email.
That the Special Counsel’s Office used threats to prosecute Flynn’s son to extract a guilty plea from his father is also evident from the prosecution’s behavior after Flynn fired his Covington and Burling attorneys and hired Sidney Powell.
In a heated exchange between Powell and the lead prosecutor on the Flynn Case, Brandon Van Grack, Powell “informed Van Grack that Flynn would not testify that he had knowingly filed false Foreign Agent Registration Act statements in the government’s criminal case against Flynn’s former business partner, prosecutors added Flynn Jr. as a last-minute witness in that criminal case.” But after adding Flynn Jr. to the witness list, the prosecutors never called him to testify, “suggesting it was a scare tactic to get Dad back in line.”
2. Special Counsel Threats Against Flynn’s Son Were Improper
Not only did the special counsel’s office threaten Flynn’s son to force the elder Flynn to accept a plea bargain, the threats were improper. The public needs to know this fact because many assume the government plays for keeps when facing down criminals, so there is a collective shrug when prosecutors play hardball.
However, while threatening to prosecute third parties during plea negotiations is “not necessarily unconstitutional or even improper, . . . the Supreme Court has cautioned that where plea bargains involve ‘adverse or lenient treatment for some person other than the accused,’ it ‘might pose a great danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.’”
Further, case law stresses that promises of leniency to third parties have “coercive potential,” and that “where the threatened prosecution pertains to those with whom the defendant has familial ties or other close bonds, the threat of coercion is much greater.” For this reason, courts require the government to abide by “a high standard of good faith,” which at a minimum requires probable cause to prosecute a family member, when promising leniency
In Flynn’s case, the evidence establishes the Special Counsel’s Office violated that “high standard of good faith,” most clearly by hiding its promise of leniency to Flynn’s son in an apparent attempt to avoid its constitutional disclosure obligations to other defendants.
Even worse, federal prosecutor Van Grack, who handled the Flynn case both as a member of the special counsel’s team and later after the office closed, signed his name to the plea agreement, after stating “no agreements, promises, understandings, or representations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements, promises, understandings, or representations be made unless committed to writing and signed by your client, defense counsel, and the Special Counsel’s Office.”
Van Grack’s representation in the plea agreement of no outside “understandings” cannot be squared with the internal emails summarizing the “gentleman’s agreement” between the Special Counsel’s Office and Flynn’s original attorneys. Van Grack’s assertion also conflicts with what Flynn’s attorneys told him after he signed the plea agreement—that they had “confirmed that the [Special Counsel’s Office] would no longer be pursuing [Flynn’s] son.”
So those condemning Flynn for lying to the court when he pleaded guilty should save their outrage for the special counsel’s office that lied to the court when it represented there were no outside “understandings.” Flynn at least had an understandable reason for lying, which can’t be said for the Special Counsel’s Office.
Not only does the evidence establish bad faith from the Special Counsel’s Office, the utter lack of probable cause to prosecute the younger Flynn rendered the threats improper. First, does anyone really doubt that if the Special Counsel’s Office had probable cause against the younger Flynn it would have indicted him?
Second, the only crime floated by the press as potentially implicating Flynn’s son concerned a supposed violation of the Foreign Agent Registration Act. But there is no FARA case against Flynn’s son—just as there is no case against the elder Flynn. Thus the special counsel’s threats to charge the younger Flynn were improper for this second reason.
3. Flynn’s Guilty Plea Was Invalid
The media and left-leaning pundits who continue to rely on Flynn’s guilty plea as a basis to brand the retired general a criminal are not only ignoring the wrongful threats made to Flynn to extract that plea, but also failing to report that Flynn filed a motion to withdraw the guilty plea, which, given the facts of the case, should have been granted.
After Flynn hired Powell, Powell filed a motion to withdraw Flynn’s guilty plea. That motion was still pending when the Department of Justice filed its motion to dismiss the charge against Flynn, based on its conclusion that Flynn did not commit a crime.
Trump’s pardon of Flynn followed Judge Sullivan’s improper refusal to dismiss the charge against Flynn (more on that another day), but if the media is going to rely on the fact that Flynn entered a guilty plea to condemn the man, they owe the public the full facts, including that Flynn filed a motion to withdraw the guilty plea based on his actual innocence of the charges.
Further, the public deserves to know that the government’s improper threats to Flynn’s son rendered the guilty plea involuntary. Likewise, the public needs to understand (again, a topic for another day) what the Special Counsel’s Office did, and what Flynn’s former attorneys did—and didn’t do—that led Flynn into entering the plea agreement and entitled Flynn to withdraw the guilty plea.
4. Flynn Did Not Lie to FBI Agents—And They Knew It
Corporate media also continues to report that Flynn lied to the FBI about his conversations with the Russian Ambassador Sergey Kislyak when agents Strzok and Pientka interviewed him on Jan. 24, 2017. Sure, corporate outlets may note that after pleading guilty Flynn has since changed his story and now maintains his innocence, but the coverage ignores the overwhelming evidence establishing not only that Flynn did not lie, but that the FBI knew it—and the Special Counsel’s Office withheld that evidence from Flynn.
Flynn’s attorney, Powell, belatedly obtained this evidence from U.S. Attorney Jensen, which included notes dated Jan. 25, 2017, that stated the FBI assessed that yes, Flynn made false and inaccurate statements, but that agents “believed that Flynn believes that what he said was true,” and that the FBI concluded that Flynn was “largely telling truth as he believed it.”
A typed “Draft Work Product” dated Jan. 30, 2017, was even more explicit, stating that on Jan. 25, 2017, the FBI had “briefed the National Security Division and Office of Deputy Attorney General staff on their interview.” The “FBI advised that they believed Flynn believed what he was saying was true.”
Additional exculpatory evidence came later, when the 302 interview summary of the special counsel’s July 19, 2017, interview of Strzok was declassified. According to the 302, Strzok stated that following the interview of Flynn, he and Pientka “both had the impression at the time that Flynn was not lying or did not think he was lying.” Strzok also informed the special counsel’s office that after the interview, they “returned to FBI Headquarters and briefed [Andrew] McCabe and Baker on the interview,” and that “McCabe briefed Comey.”
Strzok’s statement not only exonerates Flynn, it suggests Comey testified falsely to the House Committees on the Judiciary and Oversight during a Dec. 7, 2019, hearing. During that hearing, Comey was asked whether “either of those agents, or both” had told him “they did not adduce an intent to deceive from their interview with General Flynn.” Comey said “no.”
Rep. Trey Gowdy pressed Comey again, asking what Pientka and Strzok had told him about Flynn’s intent to deceive. “My recollection was,” Comey stated, “the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being—they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there” (emphasis added).
Comey added while he had earlier testified before the House Intelligence Committee “that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true,” “[t]hat notwithstanding, they concluded he was lying.”
Without naming Comey, Attorney General Barr later commented on his statements. After noting that Jensen had served ten years as an FBI agent and 10 years as a career prosecutor prior to his appointment as a U.S. attorney, Barr noted he “found a lot of things that had not come to light before” about the targeting of Flynn.
“For example,” Barr stated, the evidence “showed clearly that the FBI agents who interviewed Flynn did not think he was lying. Now, this was later minimized in testimony as suggesting ‘Well, they meant he didn’t break out into sweat and his eye pupils didn’t contract, that’s all they were saying.’” “No,” Barr declared emphatically. “They were saying he didn’t believe he thought he was lying at the time.”
Media has downplayed or ignored several other facts related to this revelation. First, that Pientka did not think Flynn was lying is significant because “we have learned from Inspector General Michael Horowitz’s report on Foreign Intelligence Surveillance Act (FISA) abuse that, prior to interviewing Flynn, FBI Agent Pientka had attended a briefing with then-candidate Trump and Flynn to assess Flynn’s demeanor.”
The IG report added that Pientka explained that he took “the opportunity to gain assessment and possibly have some level of familiarity with [Flynn],” such as learning “Flynn’s overall mannerisms.” “In this instance it actually proved useful, Horowitz’s report explained, “because [Pientka] was able to compare Flynn’s ‘norms’ from the briefing with Flynn’s conduct at the interview that [Pientka] conducted on January 24, 2017, in connection with the FBI’s investigation of Flynn.”
Pientka’s prior assessment of “Flynn’s demeanor” and his “overall mannerisms” and “norms” makes the FBI agents’ later assessment that Flynn did not lie all the more significant. Yet the special counsel team failed to turn over this evidence to Flynn’s attorneys.
Further, the 302 interview summary the special counsel’s team provided to Flynn’s attorneys before he entered into the plea agreement omitted any mention of the agents’ conclusion that Flynn had not lied to them. Also, before pleading guilty and in urging Flynn to accept the government’s plea offer, Flynn’s attorneys walked him through the 302 in detail.
Flynn pushed back, telling Kelner and Anthony that he did not believe he had lied in the White House interview with the FBI. Flynn reminded his attorneys that during that time period he had “has spoken to representatives of well over thirty countries, many in a single 24-hour period, during that very busy holiday season and presidential transition period.”
Even more troubling is what happened next: Flynn asked his “former attorneys to make further inquiry with the [Special Counsel’s Office] prosecutors about whether the FBI agents believed that [Flynn] had lied to them,” as Flynn had heard rumors that the agents had not thought Flynn had lied.
“Mr. Kelner and Mr. Anthony left the room to call the SCO prosecutors” Flynn stated, and “when they returned, they informed [Flynn’s wife] and [Flynn] that they had been told that the ‘agents stand by their statements.” Flynn then decided to accept the plea agreement.
So not only did the government withhold this evidence from Flynn, when directly asked whether the interviewing agents believed Flynn had lied, the special counsel’s team did not inform Flynn of the truth, but instead led him to believe that yes, the agents thought he had lied.
These facts were also buried from the public, as was the evidence that FBI lawyer Lisa Page had wordsmithed the agents’ 302 statement, even though standard procedure calls for the interviewing agents to complete the form.
Another lesser known fact concerns Flynn’s statement to agents during the Jan. 24, 2017 interview that he assumed the FBI knew the content of his conversation with Kislyak. It makes no sense for Flynn to say to Strzok and Pientka, “You know what we discussed on the calls,” only to then intentionally misstate the substance of the conversations.
What does make sense, however, is what later evidence uncovered by U.S. Attorney Jensen established: that the FBI sprung a perjury trap—where the “government questions a witness for the primary purpose of obtaining a statement from him in order to prosecute him later for perjury”—on Flynn during the Jan. 24, 2017 interview.
“What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” the since-retired FBI Counterintelligence Division Assistant Director Bill Priestap wrote in handwritten notes released earlier this year.
Additional behind-the-scene details confirm the interview was a set-up of Flynn. For instance, before questioning Flynn, the agents strategized over how to provide the 1001 admonition (a warning given to a target that lying to FBI agents is a federal offense) without alerting Flynn to the real purpose of their questioning. In the end, no warning was given, in violation of FBI policy. The FBI also decided not to show Flynn the transcript of his call with the Russian ambassador, even though that would be the standard procedure, according to Priestap’s notes.
A text message from Strzok to Page further confirms the purpose of the interview was to elicit a statement from Flynn that was false—even if Flynn did not intentionally lie to the agents. “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,” Strzok wrote Page after questioning Flynn.
Added to all of these details was the release two months ago of a statement by FBI Special Agent William Barnett, who worked on the Crossfire Hurricane case and later for the Special Counsel’s Office. Barnett told troubling details about the investigation, including the fact that he was “cut out” of the Jan. 24, 2017, interview of Flynn and only learned that it had taken placed afterward.
Typically, “a line agent/case agent would do the interview with a senior FBI official present in cases concerning high ranking political officials,” notes from U.S. Attorney Jensen’s interview of Barnett read. In his interview with Jensen’s team, Barnett also noted that he and other line agents were excluded from meetings about the Flynn investigation, with former FBI Deputy Director Andrew McCabe personally directing it. Barnett added that an analyst who was “very skeptical of the Flynn collusion investigation” was removed from the investigation.
The interview of Flynn also violated the FBI’s protocols that called for White House counsel to be involved in questioning of members of the administration, which is likely why Comey went “rogue” and sent Strzok and Pientka to interview Flynn without telling then-acting Attorney General Sally Yates. “I was upset that Director Comey didn’t coordinate that with us and acted unilaterally,” Yates would later tell the Senate Judiciary Committee.
Together these facts tell a damning story of the FBI scheming to induce Flynn to make a false statement to FBI agents, which he did, based on an insufficient recall. Then, even while believing Flynn had spoken what he thought was the truth, the Special Counsel’s Office extracted a guilty plea from Flynn while hiding the evidence supporting Flynn’s actual innocence of the charge. The evidence here is plentiful, but it was also hidden by the corporate media.
5. As a Matter of Law, Flynn Is Also An Innocent Man
Not only did Flynn not lie to the FBI, even if he had intentionally made a false statement during the Jan. 24, 2017 interview, he still committed no crime because Section 1001 requires a false statement to be “material” to be criminal. As U.S. Attorney Jensen concluded following an independent review of the case, Flynn’s statements to Agents Strzok and Pientka were not material to any investigation.
In prosecuting Flynn, government attorney Van Grack represented to the court that Flynn’s purported “false statements to the FBI on January 24, 2017, were absolutely material,” claiming that “at the time of the January 24 interview, the FBI was conducting a counterintelligence investigation into whether individuals associated with the campaign of then-candidate Donald J. Trump were coordinating with the Russian government in its activities to interfere with the 2016 presidential election.”
“The defendant’s conduct and communications with Russia went to the heart of that inquiry,” Van Grack argued, as “[a]ctions such as the defendant’s communications with the Russian Ambassador about U.S. Sanctions could have been indicative of such coordination.”
The evidence withheld from Flynn until recently refutes this entire line of argument and establishes the government’s representations to the court were false: Comey did not send FBI agents Strzok and Pientka to question Flynn because of the counterintelligence investigation into supposed Russia collusion. Rather, as Priestap’s handwritten notes highlight, the goal was clear: “to get him to lie, so we can prosecute him or get him fired.”
The internal communications previously withheld from Flynn’s legal team, including new text messages released in late September 2020, reveal just how ridiculous—and pretextual—the supposed investigation into Flynn was.
These documents establish that on Jan. 4, 2017, the FBI transmitted documentation to close the Crossfire Razor investigation into Flynn because he “was no longer a viable candidate as part of the larger Crossfire Hurricane umbrella case.” Just 20 minutes later, Strzok desperately texted an unknown FBI agent, directing the agent to keep the Flynn investigation open because of a dictate from the “7th floor,” meaning the upper leadership of the FBI.
As Page would later quip to her partner in adultery, Strzok, the “utter incompetence” of the FBI proved to be “serendipitiously good,” as the Flynn case had not been closed and thus, at least on paper, there was an investigative purpose to question Flynn.
But from the text messages more recently dumped in late September 2020, and largely ignored by the press, we now know this was the second time the FBI kept open the Flynn case to justify spying on the Trump transition team and later administration. Several text messages indicating that as early as November 8, 2016—the same day as the 2016 presidential election—the Flynn investigation was to be closed but was later re-opened in early January of 2017.
As The Federalist’s Mollie Hemingway and Sean Davis reported, “[t]he new disclosures made by DOJ also show that the FBI used so-called national security letters (NSLs) to spy on Flynn’s finances.” The text messages also indicated “the NSLs were just being used as a pretext by FBI leadership to buy time to find dirt on Flynn after the first investigation of him yielded no derogatory information.”
“[T]he decision to NSL finances for Razor bought him time,” one agent texted, two weeks after the initial closing documents on Flynn went through. The additional early-December text exchanges showed the agents knew the NSL ploy was a crock: “What do we expect to get from an NSL[?] We put out traces, tripwires to community and nothing.” “[B]ingo,” came the reply, followed by “Hahah this is a nightmare.”
Yes, it was a nightmare—for Flynn and his family.
Not only was the FBI’s continued “investigation” of Flynn a fraud, previously withheld internal documents establish that in attempting to justify the questioning of Flynn, the FBI didn’t even pretend they were doing so because of the Crossfire Hurricane investigation into supposed Russia collusion. Rather, the only investigative purpose the FBI team floated to justify the interview of Flynn was the Logan Act.
Priestap’s notes summarizing the meeting the higher-ups in the FBI held the day before the Flynn interview revealed that reality. And now we have FBI Agent Barnett’s statement to U.S. Attorney Jensen that he was instructed to keep the investigation into Flynn “open and investigate Flynn for a Logan Act violation,” further confirming the charade.
While behind the scenes the FBI pretended the Logan Act justified their questioning of Flynn, the Special Counsel’s Office and holdover prosecutor Van Grack didn’t even dare to cite that “antiquated and most assuredly unconstitutional law” as the basis for the continued investigation of Flynn. Instead, Van Grack misrepresented to the court that Flynn’s statements were material to its investigation into Russia collusion because Flynn’s “communications with the Russian Ambassador about U.S. Sanctions” might have indicated coordination.
And in this statement we have another huge problem with the government’s entire case against Flynn: Flynn never discussed sanctions with the Russian ambassador. Never. The transcript of Flynn’s call with Kislyak establishes that fact beyond doubt.
Yet in the Statement of Offense filed with the court on Dec. 1, 2017, by the Special Counsel’s Office, Van Grack attested that on Dec. 29, 2016, “FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.” Van Grack then signed the statement of offense, “stipulat[ing] and agree[ing]” that the facts detailed in the Statement of Offense were “true and accurate.”
The facts were neither true nor accurate. Again, Flynn never discussed sanctions with Kislyak.
Now, Flynn did discuss the expulsions of Russian diplomats with Kislyak, but the expulsions and sanctions were two entirely separate issues. And here we have another great irony in this case: The Special Counsel’s Office, with its hordes of lawyers and FBI agents and access to the transcript of Flynn’s call with Kislyak, was confused about what Flynn and the Russian ambassador discussed, yet Special Counsel Robert Mueller’s team charged Flynn with lying to the FBI when Flynn didn’t remember the same details a month after the call, without access to a transcript, and when that call was one of several Flynn took on a daily basis with foreign officials.
6. Flynn Was a Tool to Get Trump
So why did the Special Counsel’s Office charge Flynn when he didn’t lie to the FBI, the FBI agents didn’t think he lied, and even if they had been false the statements were immaterial to any legitimate investigative purpose?
FBI Agent Barnett told U.S. Attorney Jensen the answer: “the Special Counsel Office pursued Flynn simply as a means to ‘get Trump.’” But Americans never heard the answer because a dishonest corporate media buried the story—just as they buried the truth that Michael Flynn is an innocent man.
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 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.
Photo DoD photo by D. Myles Cullen/Released
ORIGINAL SOURCE: Date-stamped: 2020 NOV 30 | Author: Margot Cleveland | Article Title: Trump’s Flynn Pardon Only Begins The Justice This Nation Deserves | Article Link: thefederalist.com
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