Is the Flynn guilty plea going to be thrown out?
It is always a bad idea to defy an order from a federal judge – especially when the judge whose order has been blown off has a history of vigilance against law enforcement and prosecutorial abuse and has thrown out convictions that resulted from abuse. Yet the nation's premier, most powerful law enforcement agency has just done so.
The Mueller Special Counsel Office's case against General Michael Flynn took a bizarre turn Friday when the FBI failed to provide Judge Emmet G. Sullivan with the original form 302 account of its interview with Flynn in the early days of the Trump administration. General Flynn's guilty plea was based on yielding to the FBI's contention that he lied to them about his (perfectly legal) conversation with Russia's Ambassador Kislyak, concealing their discussion of sanctions. At the point of his guilty plea, General Flynn had been bankrupted by legal fees, and his son was threatened with criminal prosecution.
Judge Emmet G. Sullivan (official photo).
But in defiance of Judge Sullivan's order, the FBI did not turn over that Form 302 and instead offered a Form 302 of its interview with Peter Strzok, six months later, referencing the original interview with Flynn that was conducted by Strzok and FBI agent Joe Pientka.
Sean Davis of The Federalist has provided a Twitter thread that covers the key points and includes excerpts from the documents:
Earlier this week, Judge Emmet G. Sullivan ordered DOJ to produce the FBI 302 of the FBI interview of Flynn. Those documents were just filed. There is no 302 of the interview. Instead, there's a 302 of an interview of *Strzok* talking about the interview 6 months later. pic.twitter.com/MCELRDlbti— Sean Davis (@seanmdav) December 14, 2018
The FBI 302 of the interview with Strzok about the Flynn interview, however, explicitly references a 302 written up about the Flynn interview by a redacted official, who is likely Joe Pientka. DOJ did not include that 302 in today's filing.— Sean Davis (@seanmdav) December 14, 2018
Where is the original Flynn 302? pic.twitter.com/yRlkqOWhWp
But it's not just the missing Flynn 302 that raises red flags about this investigation. It's the fact that the Strzok 302 interview--the sole basis for the Flynn charge--was conducted just 4 days after Lisa Page was fired and days before Strzok himself was fired by Mueller. pic.twitter.com/8jplDKwouD— Sean Davis (@seanmdav) December 14, 2018
But the August 302 on the July interview of Strzok specifically references a 302 of the January Flynn interview and accompanying notes compiled by Strzok’s interviewing partner (likely Joe Pientka). Where is that 302 and where are the notes? https://t.co/Nq7KvlRQER— Sean Davis (@seanmdav) December 14, 2018
TechnoFog added two important observations:
Included is this interesting footnote:— Techno Fog (@Techno_Fog) December 14, 2018
Strzok was interviewed on July 19, 2017 "in relation to other matters, not as part of the investigation of [Flynn] or any investigation of Strzok's conduct." pic.twitter.com/OAn5Kjlalp
Clarification: the *Strzok 302.@seanmdav pointed something out for me: the July 2017 302 mentions a prior 302, which wasn't filed with the court.— Techno Fog (@Techno_Fog) December 14, 2018
Flynn's answers/demeanor were "documented in the 302." (see photo)
No idea where that 302 is - but Mueller was req'd to file it pic.twitter.com/OREJ94vO8F
This raises many questions. What happened to the Form 302 of the Flynn interview? Does the FBI have it and is willfully defying Judge Sullivan? Or was the document "lost" or destroyed? If so, why?
Retired FBI agent Mark Wauck tells me that Form 302s are not considered evidence, but are work documents that, in theory, are the property of the American people. They should not be destroyed. Even more critically, contemporaneous notes of the interview, which would appear to have been produced by Agent Pietka, are considered evidence. My observation is that the destruction of evidence in a criminal probe would be obstruction of justice, if that is what happened. Wauck comments in an email:
Those notes are evidence. If destroyed, that's a very big deal. If withheld from the judge who demands them, also a big deal.
General Flynn's sentencing by Judge Sullivan is to take place Tuesday. I have my fingers crossed that Judge Sullivan will throw out the guilty plea and the case and demand from the FBI an account of the fate of the missing Form 302.
My fondest hope is that a special counsel will be appointed the investigate misbehavior of the Mueller team and the FBI. Obviously, such an appointment would be attacked as an effort to hobble Mueller. But if a federal judge demanded accountability, that would aid considerably in justifying a new special counsel.
Update: One further thought occurred to me. Since the FBI has flouted Judge Sullivan, he may want to rely on the U.S. Marshals Service, which serves the federal courts, to interrogate FBI officials and members of Team Mueller. He could possibly charge the Marshals to obtain the documents from the FBI, though I confess to utter ignorance of the relevant law and regulations.