Michael Flynn’s attorney filed a response Monday to the federal government’s defense against several shocking claims of misconduct. Attorney Sidney Powell alleged in an earlier filing that federal prosecutors, led by former Special Counsel Robert Mueller alumnus Brandon Van Grack, hid or destroyed evidence and used an edited account of Flynn’s statement as a basis for charging the former national security advisor with lying to the FBI.
Powell inferred that an earlier version of Flynn’s statement, as recorded by the interviewing agents, was suppressed or destroyed. She writes,
It is no excuse that the original Flynn 302 is not ‘in the possession of’ Mr. Van Grack at this moment. It is in the FBI’s system, or can be retrieved, along with the audit trail, the A1 files, information about any attempt made to destroy it, and all the metadata for the changes which are more important now than ever in light of the absurdity of the government’s Surreply. Tellingly, Mr. Van Grack does not deny that such information is, in fact, available.
Powell also noted that FBI attorney Lisa Page and Bill Priestrap, who was the FBI’s assistant director of investigation and counterintelligence, edited Flynn’s statement after the interview, even though neither was present during the questioning.
Powell also cited the testimony of former FBI Deputy Director Andrew McCabe, who talked to the FBI agents immediately after they interviewed Flynn. McCabe testified to the House Intelligence Committee, “[T]he conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview . . . the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”
McCabe proceeded to admit to the committee that “the two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”
Powell alleges that two of the “false” statements that appeared in the final draft of the agents’ account of Flynn’s statement do not appear in their original handwritten notes.
“Two allegations depend on Ambassador Kislyak’s response to purported questions about the U.N. vote and sanctions,” Powell writes in Monday’s brief. “Read the notes of both agents for hours, and you won’t find a question or an answer about Kislyak’s response on either the U.N. vote or the sanctions—yet those assertions underpin the factual basis for the plea. . . . By failing to join issue on these points, the government has effectively conceded that the notes do not support the purported false statements in the factual basis for the plea.”
Powell also rebutted the government’s contention that the edits to Flynn’s statement were superficial, writing,
We do know that the same evening, Strzok went into the office, picked up Page’s edits, and made changes that any reasonable person would deem material to the 302. He added a definitive statement: “FLYNN stated he did not.” This was in response to whether, on the issue of UN vote, Flynn had asked Kislyak to vote in a particular way. This is materially different from the notes which state Flynn did not recall speaking to Kislyak on the UN vote issue.
Finally, Powell on Monday challenged the entire basis for the FBI interview of Flynn, noting that the government previously claimed it was investigating links between the Russians and the 2016 Trump campaign for president.
“The agents already knew exactly what Mr. Flynn said in all his communications with the Russian Ambassador, so the FBI agents did not ask questions to discover the existence or substance of those communications,” she writes. “And, second, the agents did not ask Mr. Flynn a single question about anything even approaching ‘interference with the 2016 election.’”
Powell’s filing appears to conclude the briefing schedule and a previously scheduled hearing set for November 7 remains cancelled. It is therefore unclear what the next step in the nearly two-year-old case might be.