Two weeks ago, in addition to filing a supplemental motion to withdraw the guilty plea Michael Flynn had entered on December 1, 2017, Flynn attorney Sidney Powell filed a second motion seeking dismissal of the charge against President Trump’s short-tenured national security advisor, based on egregious government misconduct and in the interest of justice. Yesterday, the government responded to Flynn’s motion to dismiss based on prosecutorial misconduct, but failed to address two of the retired general’s strongest arguments.So basically, a ratchet. Once they succeed in railroading someone into a guilty plea, they claim the defendant has no right to any exculpatory evidence the government had withheld to that point.
In the Motion to Dismiss for Egregious Government Misconduct and in the Interest of Justice, Powell highlighted the evidence of misconduct revealed in the then just-released inspector general’s report on FISA abuse. While Powell hit many parts of the report, two aspects of it proved especially relevant to Flynn’s claims of government misconduct.
First, as Powell stressed, the IG report detailed Supervisory Special Agent 1’s (SSA 1’s) supervisory role in filing the four FISA applications for federal surveillance of Trump campaign associate Carter Page. Those applications, the IG report concluded, included more than 20 significant misrepresentations and omissions.
SSA 1, who is broadly reported to be Joe Pientka, was also one of the two FBI agents—the other being the disgraced Peter Strzok—who interviewed Flynn on January 24, 2017, about his telephone calls with the Russian ambassador. Yet federal prosecutors failed to provide Powell details of SSA 1’s misconduct, or oversight of misconduct, until December 9, 2019, when IG Michael Horowitz released the report on FISA abuse.
In yesterday’s filing, the government countered that it had no obligation to provide Flynn this information because, at most, it constituted impeachment evidence which need not be provided to a criminal defendant prior to the entering of a guilty plea. But, as Powell told The Federalist, in their brief, the federal prosecutors continued to ignore the order Judge Emmett Sullivan entered more than two years ago.
Second, and more significantly, federal prosecutors misapprehended Powell’s argument about SSA 1’s participation in a briefing of then-candidate Trump and his then-campaign advisor Flynn. That private national security brief occurred on August 17, 2016, and as the IG report explained, the Crossfire Hurricane team selected SSA 1 to represent the FBI at the briefing in order to spy on Trump and Flynn.I keep wondering at the persistence of the DOJ, even under William Barr, to maintain the prosecution of Gen. Flynn. He certainly has made some enemies in the "Deep State" by aligning himself with Trump.
But it was what SSA 1 told the IG that proves even more important to Flynn’s case. SSA 1 told Horowitz’s team that attending the briefing provided him “the opportunity to gain assessment and possibly have some level of familiarity with [Flynn],” such as learning “Flynn’s overall mannerisms.” SSA 1 went further, stating that “in this instance it actually proved useful because SSA 1 was able to compare Flynn’s ‘norms’ from the briefing with Flynn’s conduct at the interview that SSA 1 conducted on January 24, 2017, in connection with the FBI’s investigation of Flynn.”
As I explained shortly after the IG report broke, “this revelation is significant because former FBI Director James Comey testified to the House Intelligence Committee that the agents who interviewed Flynn ‘discerned no physical indications of deception. They didn’t see any change in posture, in tone, in infection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.’ Former FBI Deputy Director Andrew McCabe also confirmed that agents didn’t detect any deception in their interview with Flynn.”
Yet, until the release of the IG report, as Powell confirmed to The Federalist, Flynn’s legal team did not know that SSA 1 had previously assessed a baseline on Flynn. These facts would have been important for Flynn and his attorneys to know before the former national security advisor pleaded guilty, and likewise important for Flynn and his attorneys to know later, when Judge Sullivan first questioned him about whether he had pleaded guilty because he was guilty.
Taylor Millard at Hot Air has Thoughts On Tomorrow’s Vote On The Freedom Act Extension, that should be today:
Questions remain on whether the USA Freedom Act will reform the FISA process or allow it to carry on with minor changes to the process. It appears Congress wants the latter more than the former given House Judiciary Committee Chair Jerry Nadler’s decision to call off a vote on the bill last month. He and Intelligence Committee Chair Adam Schiff disagreed with multiple proposed amendments by Congresswoman Zoe Lofgren that changed the FISA process more including increased Fourth Amendment protections in the U.S.
Senate leadership is unlikely to go for more reform given the interaction on Thursday between Senator Mike Lee and Senate Intelligence Committee Chair Richard Burr. Lee attempted to get a 45-day extension of the current FISA rules so the Senate could offer up amendments to the House-passed bill. Burr objected to the request, not once, but at least four times to a simple unanimous consent of the extension.
It was during this debate when Burr offered up a rather curious comment regarding Executive Order 12333 used by the intelligence community to collect information.
The statement elicited alarm from FISA reform advocates. “If that’s true, and the executive branch truly believes it can conduct warrantless surveillance on Americans via Executive Order 12333, that ought to prompt questions from every member of Congress and the public on what, if any, limits the executive branch believes exist on their power to spy domestically,” FreedomWorks Senior Policy Analyst Josh Withrow told me in an email. “FISA was passed into law very specifically to prevent the kind of lawlessness that Senator Burr casually implied on the floor of the US Senate.
|H/T Locomotive Breath|
The disappointment of Hillary Clinton’s 2016 defeat had a traumatic psychological impact on Trump’s enemies, particularly in the media, who experienced the election result as a loss of power. Immediately, the anti-Trump media began seizing on anything — a scandal, a poll result, Russian “collusion,” etc. — that might rid them of this demonized figure whose political success symbolized to them their own failure. Thus was born the “walls are closing in” meme of liberal media fantasy, where the latest “bombshell” was always “the beginning of the end” for Trump.Or not, they all sound the same to me after a while.
Never mind that 63 million Americans voted to elect Trump, and never mind any evidence of his success in office, the liberal media cannot accept the possibility that they are wrong. No one they know voted for Trump. Everyone whose opinion they respect agrees with them: Trump is Hitler, everyone who voted for Trump is a racist, and therefore, in order that Good triumph over Evil, the walls are always closing in on Trump.
Consider this outburst from #NeverTrump intellectual Peter Wehner . . .