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Prosecutors Respond to Judges Request for More Evidence Prior to Sentencing in Michael Flynn Case

Prosecutors Respond to Judges Request for More Evidence Prior to Sentencing in Michael Flynn Case

Documentation on key interview conspicuously absent

The sentencing memo released by the attorneys representing Trump’s former National Security Advisor Michael Flynn called to question the conduct of the FBI agents involved in the initial interviews with Flynn. Flynn was charged with lying to the FBI.

Wednesday night U.S. District Judge Emmet G. Sullivan ordered Mueller’s team to hand over documents germane to interviews conducted by the FBI in January of 2017 by mid-day Friday.

Friday afternoon, Mueller’s team handed over heavily redacted documents, none of which appear to address the interview under scrutiny, referred to as 302.

So where is it?

Not a good look for the prosecution.

Meanwhile, Sen. Grassley has requested declassification of certain documents in the Flynn investigation:

Prosecutions response:

Prosecution's response to Judge's Request for More Evidence by Legal Insurrection on Scribd


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Prosecutors say that two weeks before Flynn’s interview with the FBI, Flynn was making false statements about his comms with the Russian ambassador at the time to the press

And this is a criminal concern? Investigated by the FBI? Why would they even mention it? It makes them look, well, stupid. What politician doesn’t lie to the press?

    DINORightMarie in reply to gospace. | December 14, 2018 at 5:44 pm

    Also, frankly, saying “I don’t recall” or “I don’t remember” is NOT lying. It is saying he does not remember…….

    Hillary and others have made such statements into a virtual ART FORM.

    Hope the judge is a legit, honest one. If so, then Flynn should walk, and have plenty to file a lawsuit against these villainous, treasonous swamp-rats!

    No that is not lying, it is called not disclosing classified information to people who have no need to know.

    mathewsjw in reply to gospace. | December 14, 2018 at 11:21 pm

    Mueller’s Team Did NOT Deliver the Original Flynn 302 effectively a Middle Finger to a Federal Judge which is the bigger story.

    also McCabe leaked Flynn’s conversation to Wash Post days before then sent #TDS Strzok to entrap Flynn so this may be the insurance policy.

This is very bad. You don’t refuse a judge a document he has specifically requested…

…unless you are hiding something criminal

Ace has a write-up:

Sundance also:

    Milhouse in reply to RedEchos. | December 16, 2018 at 1:15 am

    You do if it doesn’t exist.

      DaveGinOly in reply to Milhouse. | December 16, 2018 at 12:38 pm

      “The FBI 302 of the interview with Strzok about the Flynn interview, however, explicitly references a 302…”

      Why would Strzok, in an internal interview with other FBI agents, reference a non-existent document? He had no idea at the time that it’s existence would be critical, so why would he make such a comment? If the document never existed, he would have been lying to investigators when he said it did exist. It is unlikely that an interview was conducted with Flynn and a 302 was not written up. The most likely series of events following Flynn’s interview is that a 302 was filed, Strzok saw it and reported it in his interview, and it is either now “missing” or hasn’t been produced upon demand.

No original 302? The judge has can sanction the prosecution by presuming the original 302 was exculpatory.

I’d already heard a confusing and contradictory report about this, so I’ll try and ask a better question.

If a 302 written after the interview in January 2017 was filed under seal, would the public know, just without being able to see the contents? I don’t know where else to ask about an issue of procedure like that except on a law blog, so you have my warm thanks in advance.

    Edward in reply to JBourque. | December 14, 2018 at 6:08 pm

    Reports of Interview, by any form number in any Agency are not “filed under seal”. They are documents which are sent to the case file. The process I was familiar with was notes taken longhand during the interview (as needed), longhand written report made on the road ASAP after the interview (I usually stopped at the first DQ I saw and wrote it up) and the typed, final file copy on return to the office (normally the next week after a week on the road). The typed copy was dated the date of the interview and signed with the date I typed and signed it. The longhand notes and written report of interview were placed in a specific envelope (don’t remember the form number, been retired too long), noted on the list of contents on the outside of the envelope and the envelope and typed report sent to the case file. Whatever these clowns did, it all should be in the case file and it sure as Hell shouldn’t be completed seven months after the interview.

      I’m talking about filing with Judge Sullivan’s federal court under seal, specifically.

      Edward in reply to Edward. | December 14, 2018 at 11:20 pm

      It occurs to me that you were asking about filing with the Court and the Judge agreeing the filing would be “sealed”. That is possible, assuming they have a good reason to keep the first FD 302 from the public then Judge Sullivan would go along with them. There certainly was a great deal of redaction, including then name of the S/A who wrote the 302 – after his name has been in the news for a week or two.

DINORightMarie | December 14, 2018 at 5:41 pm

What I found interesting is the prosecutor’s reaction to the failure to warn Flynn of the seriousness of his interview (i.e. that it would be illegal, and counted as an investigative interrogation of sorts) AND that they intentionally did not provide him the information that a lawyer could/should be present – in fact, they DISCOURAGED it, blowing it off as if it was more of a hassle. In fact, they claimed that the “disorganized” new Administration was being exploited – i.e. “take advantage” of the fact that Trump was MOVING INTO THE WHITE HOUSE, and that he would not be focused on this as they claimed it was No.Big.Deal.

I am no lawyer, but this sure smacks of reason to dismiss the charges against Flynn due to prosecutorial misconduct, misleading the target/interviewee, etc.

I hope that Grassley gets these things de-classified, whether through regular channels or by Trump using his Executive powers (which I believe allow him to do this, by Executive Action).

Only then will people KNOW and SEE what a witch hunt, what a PLANNED INSURRECTION this all has been, from the get-go.

    “What I found interesting is the prosecutor’s reaction to the failure to warn Flynn of the seriousness of his interview”

    I thought that was interesting, too. Following that same logic, I guess it’s no longer necessary for police to give Miranda warnings, because anyone who’s been exposed to TV over the last half century should know them.

    They know the SOP is to contact the White House Counsel’s office before going to the WH to interview any staff. They deliberately avoided doing that which they knew they were supposed to do, counting on the disarray of moving into the WH to give them cover. Add in the effort to keep Flynn from notifying the WH Counsel himself and the whole thing stinks of entrapment.

The Strzok 302 says that prior to the interview the FBI/DOJ agreed to quote Flynn back at him. But the actual exchange between Strzok and Flynn is not quoted. But Mueller points to Strzok’s 302 to support his claim that Flynn lied. Where is Flynn’s 302?

Hopefully, the judge has some concerns about the lead FBI investigator being the guy who was fired for political bias.

Judge Sullivan has disappointed in the past … until I hear of a bench warrant for Mueller for contempt, I’m going back to bed.

Is Judge Sullivan obliged to issue a sentence? Couldn’t he declare Flynn to be free on lack of admissible evidence?

Similarly, since Sullivan is questioning the admissibility of the evidence based on the possibly unethical conduct of the FBI in attaining that evidence, the evidence used to convict Flynn in the first place, isn’t he questioning conviction itself? Could he declare a mistrial? Or even dismiss the charges entirely?

    Judge Sullivan could dismiss the charges “with prejudice”, meaning that the same charge could not be brought against Flynn again. I hope he does that, but since I don’t gamble I wouldn’t bet he does that.

As the National Security Adviser for the Trump administration, I’d be pretty reluctant to convey highly classified communications between me and the Russian Ambassador.

Had the FBI conducted a proper interview instead of a ‘shoot from the hip’ ambush, Flynn might have been able to avoid a direct lie.

Even so, without the original FD 302, we have no clue as to what Flynn actually told Strzok. Given that Flynn knew somebody, somewhere was leaking to the press (they were all over him about the phone call), he would have been negligent in his duties to tell the truth.

    I view Flynn as mostly a victim in this whole mess, yet I also think you’re presenting him in a horribly damning light. A judge hearing your argument would add five years.

    The FBI already had the entire phone call and was apparently trickling direct quotes to Flynn during the questioning. And, more to the point, you cannot make a sane case that it was part of Flynn’s official duties to withhold information from the FBI’s top counter-intelligence investigators.

    Apparently Comey is doing media interviews bragging about the ambush, claiming full personal credit for taking advantage of a disorganized White House. I’m sure people will line up to blame Trump, but where was Chief of Staff Reince Priebus in this? Just wondering out loud. Flynn hung himself, but he had plenty of help.

    Has there been an allegation that Flynn conveyed classified information to the Sov – er, Russian Ambassador? If there has been, I’ve certainly missed it. There was discussion about the Russians wishing to see some reduction in the actions taken against them and their citizens. That is a policy issue and most certainly fair game for the incoming National Security Advisor to discuss that policy issue. The allegation is that the Obama administration was concerned that Flynn violated the Logan Act, first passed in 1799 and codified as 18 USC 953 in 1948. There has never been a successful prosecution under the Logan Act, and since 1799 there has been only one indictment for a violation and no convictions.

    It was impossible for Flynn to have violated the Logan Act because it requires that the person contacting the foreign government on behalf of the US not be authorized to have such contact. As the National Security Advisor member of the transition team Flynn was certainly authorized to commence such contacts. So the Logan Act was just a weak excuse for the effort to entrap Flynn.

      What is it with these horrible defenses? They wouldn’t help Flynn one little bit. The Obama administration sure didn’t authorize Flynn to represent the United States while Obama had a single day, a single minute, a single second left in office.

      Lying to the FBI about a material fact is a felony regardless of whether the material fact is classified or not. The intent issue is covered by Flynn admitting he intended to lie, regardless of the true objective facts. He can’t be saved with defenses that make him a perjurer on top of everything else.

      stablesort in reply to Edward. | December 15, 2018 at 2:50 pm

      “Has there been an allegation that Flynn conveyed classified information to the Sov – er, Russian Ambassador?”

      Any communications between the National Security Advisor and a foreign ambassador is automatically classified.

“A sitting National Security Advisor, former head of an intelligence agency, retired Lieutenant General, and 33 year veteran of the armed forces knows he should not lie to federal agents.”

Well, what he certainly knows now, is that the FBI is no longer populated by men (and women) of honor and integrity, that can be trusted to do the right thing.

Refusing to turn over a document when specifically ordered to do so by a judge usually permits an inference that the consequences of turning it over far surpass the consequences of incurring the judge’s wrath for defying his direct order.
Only a litigant (or prosecutor) with potentially devastating evidence, which he is petrified to have disclosed, would ever engage in such behavior.
In another context, this might be called “consciousness of guilt”.

regulus arcturus | December 14, 2018 at 7:42 pm

Weissmann has a history of destroying such things as 302s.

Time to arrest Weissmann and Mueller.

Don’t know if this is true:

Joe Pientka and a group of fellow FBI agents, all want to testify against Comey/McCabe/Strzok/and others. They want to be called while on active duty so their legal fees will be covered by the government.

Is the FBI Raiding Whistleblowers’ Homes to Protect Robert Mueller?

I am starting to see a pattern here. Mueller is on offense to protect himself.

I think this cancer in our government runs deep.

“A sitting National Security Advisor, former head of an intelligence agency, retired Lieutenant General, and 33 year veteran of the armed forces knows he should not lie to federal agents.”

Ahh . . . when? If someone who happens to work for the FBI asks if you want some coffee, and you say yes, you can’t be nabbed for lying if they have a tape of you saying you hate coffee. There’s supposed to be some sort of oath involved. That establishes a start and end point to your testimony; lie, dissemble, and natter on all you want the rest of the day, but you’ll suffer if you lie when under oath. Or do the FBI people emit some sort of invisible automatic “perpetual implied oath” field which pervades everything they do?

    randian in reply to tom_swift. | December 14, 2018 at 11:25 pm

    That’s why the FBI didn’t “interview” Hillary under oath, so she would be protected against charges of lying. Naturally, when the shoe is on the other foot, the FBI takes the position that a sworn oath doesn’t matter.

    Milhouse in reply to tom_swift. | December 16, 2018 at 1:26 am

    There’s no oath. But the point you seem to be getting at is correct; he surely knew it’s illegal to lie to FBI agents when they’re conducting an interview, but he wasn’t on notice that that’s what was happening. He knew they were FBI agents, but he thought they were just there to coordinate some training, and were shooting the breeze. If telling untruths to FBI agents is always a felony, no matter where you meet them or what the context, then I’m pretty sure I must have committed it several times while my next door neighbor was one.

I know what I *want* the judge to rule. I also know it will never happen, but one can dream.

“(dreaming) Due to the prosecution not producing the documents requested, documents which I must add are the primary reason why the defendant was even charged, I am forced to dismiss all charges with prejudice, and direct the prosecution to cover the legal expenses he has expended to date. Case dismissed.”

This puts the judge in a real dilemma. If the judge believes that Flyn was railroaded, declaring him innocent, sua sponte, for prosecutorial misconduct does not stop Mueller and his obviously corrupt team from charging another crime or charging Flyn’s son of some imaginary crime. The Judge might reduce the charge to a misdemeanor, accept a guilty plea and fine him a dollar. Saw something like that once. The Judge can also order an investigation of Mueller and his team. That was done once. By a Federal Judge named ….Sullivan. Say…..That’s this Judges name!

Apparently Mueller does not like what Papadoupolis is saying. He has re-opened another investigation into this obviously targeted individual who was illegally tapped and set up for a crime.

    Edward in reply to puhiawa. | December 14, 2018 at 11:52 pm

    That is correct, but if they did that they place themselves in peril of being personally liable for civil suit for taking actions outside of their job duties (and retribution is outside the job description). Not to mention a possible case of Deprivation of Civil Rights Under Color of Law (18 USC 242 criminally and 42 USC 1983 for civil action). Than again Mueller’s Merry Band seem to believe they are exempt from any requirement to adhere to the laws.

I loathe twitter, and I’m not too fond of these regurgitation posts.

I think whatever the outcome Trump will pardon Flynn.

The charge against Flynn is “False Statements” 18 USC 1001. The interviews normally do not start with an oath. If the person is placed under oath then False Statements would not be the usual charge, but Perjury 18 USC 1621 or 1623. There are also another 20 odd criminal sections of various Federal statutes applying to Perjury.

regulus arcturus | December 15, 2018 at 12:35 am

Judge Sullivan’s reputation is only partially deserved.

He destroyed the Ted Stevens fraudulent prosecution only because DOJ/Eric Holder told him to do so: read Holder was dead to rights in a malicious prosecution countersuit.

If Holder knew it was a bogus case, he was dead meat and had to come clean.

I have a question that I think is interesting.

If Flynn’s conviction(plea) is over turned by the Judge and Flynn’s agreement included not prosecuting Flynn’s son. Is it likely the Mueller team will quickly move to charge his son?

The well was tainted before the first question was asked. Everything after that is poisoned and should be thrown out (thank you Perry Mason). I would love to see the Judge throw out all the tainted evidence and make the prosecution start over again. The problem is the guilty plea. My guess is that Flynn would refuse to retract his guilty plea. Remember the Feds have him by the short hairs on something because the original guilty plea didn’t make sense until you factor in that they sent Flynn’s son a subpoena too. It’s not too much of a stretch to believe that the General is protecting his son.

We all have to remember that this was at the very beginning of the term while they were moving into the White House. Flynn, at that point, had to be assuming that they were all on the same team. Of course he would be open and cordial while at the same time assuming that these lower level teammates don’t need to know how the sausage was being made. It wasn’t until much later that it was revealed that the FBI and DOJ had been politicized by the Obama Administration (along with the IRS and others) and weaponized against Trump and anybody connected to him.
Remember too that Hillary was well versed in the rules for maintaining classified information and communications but she broke those laws and then lied about it repeatedly to the same people at the DOJ and FBI. All without recourse.

Never under estimate that this might be on purpose. Can’t speak to motivations, but other forces might be at work.

Someone could have disappeared it to crater the prosecution.