FBI Violated Policy in Flynn’s Case, Judge Demands All Exculpatory Evidence
A federal judge overseeing the case of Former National Security Advisor Lt. Gen. Michael Flynn is demanding to see the FBI’s first interviews with the retired three-star general after explosive information contained in a sentencing memo released Tuesday night revealed that senior FBI leadership suggested he not have a lawyer present, nor warn him that his interview was subject to penalties if he failed to provide all the answers, according to the 178 page Defendants memorandum submitted to the court.
U.S. District Judge Emmet G. Sullivan ordered Special Counsel Robert Mueller’s office Wednesday night to turn over all the government’s documents by mid-day Friday. The exculpatory documents requested by Sullivan include any memorandums regarding Flynn’s case because of the extraordinary circumstances of the information, according to Sullivan’s request. Further, Sullivan is also requesting any documentation regarding the first interviews conducted by former anti-Trump agent Peter Strzok and FBI Agent Joe Pientka -known by the FBI as 302s- which were found to be dated more than seven months after the interviews were conducted on Jan. 24, 2017, a violation of FBI policy, say current and former FBI officials familiar with the process. According to information contained in Flynn’s memorandum, the interviews were dated Aug. 22, 2017.
Anything beyond five business days is a problem, eight months is a disaster.
FBI Supervisory Agent Jeff Danik told SaraACarter.com Sullivan must also request all the communications between the two agents, as well as their supervisors around the August 2017 time-frame in order to get a complete and accurate picture of what transpired. Danik, who is an expert in FBI policy, says it is imperative that Sullivan also request “the workflow chart, which would show one-hundred percent, when the 302s were created when they were sent to a supervisor and who approved them.”
“The bureau policy – the absolute FBI policy – is that the notes must be placed in the system in a 1-A file within five days of the interview,” said Danik, who added that handwritten notes get placed into the FBI Sentinel System, which is the FBI’s main record keeping system. “Anything beyond five business days is a problem, eight months is a disaster.”
“In a case of this magnitude there is no question what is going on,” said Danik. “These agents went in the White House and had a case with a possible witness of his stature and didn’t write it up until almost eight months later? That is is unconscionable – it’s not fair to the defendant and absolutely goes against FBI policy.”
Problems and concerns regarding the 302 interview conducted with Flynn was first reported by this reporter in December, 2017, when a former U.S. intelligence official revealed that “the recent revelation that Strzok was removed from the Special Counsel investigation for making anti-Trump text messages it seems likely that the accuracy and veracity of the 302 of Flynn’s interview as a whole should be reviewed and called into question.”
But the policy Domestic Investigations and Operations Guide, known as the DIOG, which was issued Dec. 16, 2008, and updated in 2016, specifies that 302s – which are written records of a subject, witness or victim interview – must be completed within 5 business days unless there are extenuating circumstances. For example, said one former senior FBI official, who spoke on background to this news site, said, for example, a 302 can be delayed if an agent has no access to a computer because they are working in a remote area and cannot submit the paperwork.
In this case, “which was of the highest profile investigation of the FBI, there is no excuse for this to have been delayed by six or seven months” the FBI official added.
In any case, not just a case like Flynn, the handwritten notes are essential and must meet the threshold “to refresh prior recollection,” he said. Those notes have to be placed within the five-day policy period because anything beyond that is subject to memory lapses and according to Danik, as well as several other former FBI officials, the notes must be approved by someone other than the agents who conducted the interview.
Based on the information provided in Flynn’s sentencing memorandum it not certain what process was employed by both Strzok and Pietnka, other than the date showing the 302 was submitted in August.
But there’s a “dirty little secret,” said Danik. Once Flynn agreed to plead guilty to Mueller, the prosecution then had no obligation to disclose any of the “dirty information” to Flynn or his lawyers, meaning they don’t have to disclose “any of the case imperfections in a plea,” Danik added.
The explosive 302 witness information, which was first published by The Washington Examiner’s Byron York Tuesday, also revealed that now fired Deputy Director Andrew McCabe made the recommendation to not offer Flynn the right to counsel – as is almost always normally the case. Instead, McCabe said, in his own words, that he wanted Flynn to be “relaxed” during his January 2017 interview. McCabe was fired by former Attorney General Jeff Sessions for violating policy and is facing possible charges for lying to investigators about his role in leaking sensitive information to the media.
According to the memorandum, which contained urged Flynn to talk to the agents alone, without a lawyer present. “I explained that I thought the quickest way to get this done was to have a conversation between [Flynn] and the agents only,” McCabe wrote. “I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House counsel for instance, that I would need to involve the Department of Justice. [Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”
Based on the interview conducted with Strzok and Pientka, Mueller got Flynn to plead guilty to one count of lying regarding his private phone conversations with former Russian Ambassador Sergey Kislyak. According to numerous sources – both former federal law enforcement officials and persons close to Flynn – the guilty plea appeared to be the only recourse for the retired general, whose finances were depleted from the nearly two-year trial, as well as the Special Counsel’s threats to go after his son, Michael Flynn Jr.
“He’s nearing roughly $3 million in legal debt, sell his home, sell his car and is barely able to make ends meet,” said a source close to Flynn. “Almost all his military pension goes to his lawyers and he has not been able to get any new contracts or speaking engagements.”
For friends of Flynn, and Flynn’s family, the last two years have been grueling and they are hopeful this new information may lead the judge to overturn Flynn’s conviction. It wouldn’t be too much to hope for since Sullivan has done so in the past. He overturned the 2008 conviction of former U.S. Sen. Ted Stevens after when government misconduct was exposed. Now he is overseeing Flynn’s case.
Former FBI Supervisory Special Agent Robyn Gritz, who met Flynn in 2005, when she was working in the FBI’s Counterterrorism Division in Washington D.C., said: “it is so very painful to watch an American hero, and my friend, torn apart like this.”
“His family has had to endure what no family should have to,” said Gritz, who has had her own long battle with the FBI and McCabe. “The publicly reported Brady material alone, in this case, outweighs any statement given by and FBI agents, we now know at least one FD-302 was changed…Quite simply, I cannot see justice being served by branding Lt. Gen. Michael Flynn a convicted felon, when the truth is still being revealed while policies, ethics, and laws have been violated by those pursuing the case.”