OpEd by: Brian Cates
There were several important developments at this latest hearing in the case against Lt. General Michael Flynn. Judge Emmet Sullivan had called for a court session on Tuesday, September 10 to set a schedule for Flynn’s sentencing and to also set dates for hearings on motions filed by the defense.
The end result of the hearing was the Judge setting dates for Flynn's sentencing [December 18] and for the motion hearing in response to the defense's Brady filings [October 31].
What really stood out to me from reporting inside of the courtroom, was how General Flynn’s new defense counsel, Sidney Powell, focused like a laser on Brady issues, especially those regarding the one person involved in this case that apparently no one has ever publicly heard from: FBI Special Agent Joseph Pientka.
Although disgraced former FBI Agent Peter Strzok has gotten the lion’s share of the public attention due to his very contentious Congressional testimony in July of 2018 – after which he was fired from the agency – it should be remembered there were two FBI agents involved in the central interview from which the government’s case against Flynn originates.
It was both Strzok and Pientka who showed up at the White House on January 24, 2017 to interview then-National Security Advisor Flynn about a series of phone calls with former Russian ambassador Sergey Kislyak.
In setting up the interview with Flynn, then-Deputy Assistant Director Andrew McCabe strongly urged Flynn not to inform White House counsel that the interview was going to take place, and that they need not be present for it. In fact, James Comey took credit for the meeting as well, infamously stating "I sent them" and adding that he would normally have gone through White House counsel, but because the administration was new and disorganized, he would “get away” with not following proper protocol.
McCabe wrote his own memorandum. In it, he recalls the instruction and guidance he provided to the agents. McCabe relates how he told Strzok & Pientka to put Flynn at ease and never tell him that anything he said to them could be used to charge him with a crime.
Pientka's extremely low profile is starting to get more visibility, thanks to his central role in the Flynn case. No one has seen or heard from him in all this time, and this despite the fact that Congress has requested several times that the DOJ make him available for testimony.
I’ve even taken to humorously dubbing Pientka “The DOJ’s Invisible Man” in the year and a half I’ve been waiting for Horowitz’s FISC abuse report to finally be released.
Brandon Van Grack, appearing on behalf of the Mueller team at the hearing, continues to insist all relevant documents have been turned over, but Powell clearly is not buying this.
There is a reference to a post-dated 302 form in one of the defense’s filings in this case. The date given for the creation of that 302 form is August 22, 2017, almost seven months after the interview with Flynn took place.
As of yet, no 302 form written by Pientka has ever been produced, and Powell seems to think one existed at some point. And, she is now explicitly demanding that the court order the government to hand it over.
In her recent filing with Judge Sullivan, Powell claimed the government's prosecution team had withheld evidence from the defense; evidence that shattered the credibility of the primary witness against her client.
The driver of the case against Flynn does not appear to be Pientka. After all, besides the fact he’s very quiet and out of sight, Pientka is still at the FBI. Strzok, however, is no longer there, and for very well-known reasons.
It looks like the “primary witness” that Powell is referring to in her filing with the court is Peter Strzok. Strzok is the one who got himself into hot water with the DOJ IG after getting caught engaging in an illicit relationship with a coworker. During an inquiry into that improper relationship, the IG ended up revealing thousands of damning text messages that clearly displayed Strzok’s exceedingly strong political biases, and how those biases affected his work for the FBI.
I’m pretty sure given what’s been made publicly available at this point, that during the course of both the IG’s investigation, and Congress’ investigation, Strzok made false statements to federal officials many, many times.
So, here’s my take on what’s going to happen by October 31st, the date Judge Sullivan set for the Brady hearing in the Flynn case.
By the time that hearing is held at the very end of October, IG Horowitz’s FISC abuse report will have already been released, perhaps for several weeks. The Hill's reporter John Solomon told Sean Hannity on the night of August 22nd that his sources informed him on the progress of the FISC investigation. He was told that Horowitz has completed his investigation and the final report should be in the Attorney General's hands sometime in September or early October.
And, in this massive FISC report, Horowitz and his investigators are going to extensively and exhaustively detail just how many times Strzok gave false answers both to federal officials from the OIG and to lawmakers in Congress.
In essence, here’s what Powell’s going to be able to demonstrate to Judge Sullivan:
“The primary witness against my client- a witness who stated that my client made false statements during his interview- was under investigation himself for a multitude of crimes, not the least of which is lying under oath to federal officials.”
By the time the Mueller’s Special Counsel’s office was preparing to use Strzok as its main witness to prove a violation of 18 U.S.C. 1001 against Flynn, Strzok himself had been kicked off the Mueller team and isolated while he was being investigated. And it’s looking increasingly more likely that Strzok not only violated 18 U.S.C. 1001 himself many times, he did so after he’d been placed under oath by both OIG investigators and Congress.
Flynn was never placed under oath or even alerted to the fact anything he told the agents in that January 2017 interview could be used to charge him with a crime. Before testifying to Congressional committees and taking questions from OIG investigators, Strzok was placed under oath.
If it does turn out that Strzok made false statements to federal investigators, that's going to present a huge problem to the prosecution going forward in this case. Time will indeed tell, and time is something corrupt government officials and corrupt DOJ prosecutors are running short of.
Brian Cates is a writer based in South Texas and author of “Nobody Asked For My Opinion … But Here It Is Anyway!” He can be reached on Twitter at @drawandstrike.