Judge Emmet Sullivan has seen the deliberate mishandling of evidence in high-profile, politically charged, prosecutions before.
In 2008, Alaska Senator Ted Stevens was found guilty of making fraudulent statements for allegedly receiving gifts worth thousands of dollars from friends and business associates but failing to report them on his tax returns or on Senate financial disclosure forms. The verdict was thrown out by a federal judge in 2009 after an FBI whistleblower revealed that prosecutors hid evidence that might have helped prove Stevens was innocent.
But, not before Stevens, the longest serving GOP senator at the time, was defeated in his re-election bid.
The 525-page report that was compiled by special investigator Henry F. Schuelke III, who was appointed by U.S. District Court Judge Emmet Sullivan, and who presided over Stevens’ 2008 trial. The appearance of prosecutorial misconduct during the trial, which ended with a guilty verdict, spurred an infuriated Sullivan to initiate an investigation after he threw out Stevens’ conviction.
All 670 pages of the Kafkaesque report details numerous instances of mistakes, including — but not limited to — withholding material that could have exonerated Stevens, made by everyone involved in the prosecution.
“There’s a crying need for a rule,” U.S. District Judge Emmet G. Sullivan later said,
referring to the lawful requirement that prosecutors must turn over “exculpatory evidence” to defense attorneys.
A decade later Sullivan finds himself presiding over Robert Mueller’s sentencing agreement with General Michael Flynn and he’s not picking up what the special counsel is laying down.
Sullivan demanded documents he believed could be exculpatory to Flynn. Unless Mueller delivered it under seal – there’s no indication that he did – Mueller failed to deliver.
Specifically, Sullivan wanted to see the FD-302 report recapping the two FBI agents’ questioning of Flynn. Instead, Mueller delivered a recap of the narrative he has spent the better part of two years crafting in his effort to develop a case against President Trump.
Shortly after Mueller’s appointment as special counsel we warned that this would be the case. Sadly, it looks like we were right.
Mueller’s spurious submissions in response to Judge Sullivan’s demand is revealing:
Mueller’s reply (above) doesn’t square with what is known to be the findings of the two interviewing agents that is summarized in the missing FD-302. Both found that Flynn had been forthcoming and showed no evidence of lying.
We already know that those FD-302 interview notes were written by Pientka on January 24th, 2017. Judge Sullivan ordered the notes (below) to be submitted along with the resulting FD-302. Neither were included in Mueller’s responsive filing.
Instead, Mueller submitted the FD-302 notes of a July 29th interview of disgraced FBI Agent Peter Strzok – after Strzok had gone to work for Mueller’s team. Those notes were put in FD-302 form a day later and submitted for entry on August 22, 2017 – a full seven months after the Flynn interview had been conducted.
It has already been reported that Strzok was “fired” from the special counsel team in late July after the IG informed Mueller of the Strzok/Page issues. That would mean that Strzok gave this interview and was fired before it became an official FBI/Special Counsel record on August 22nd.
What’s up with that? And, what happened to the FD-302 notes taken by Agent Joe Pientka? There’s no denying that a FD-302 was written shortly after.
Text messages between Strzok and former FBI Attorney Lisa Page would seem to confirm the existence of that original FD-302 .
Strzok had conducted the questioning of the national security advisor on January 24, 2017.
On February 14, 2017, during a longer exchange with Page, Strzok texted, “Also, is Andy good with F 302?”
Page responded, “Launch on f 302.”
The existence of that earlier FD-302, written from Agent Pientka’s notes, was grudgingly acknowledged in a tortured exchange between Trey Gowdy and former FBI Director Jim Comey during day-long questioning earlier this month.
Credit, Margot Cleveland at the Federalist:
Gowdy asked Comey whether the agents who interviewed Flynn had indicated that Flynn did not intend to deceive them during the interview. After Comey replied “No,” Gowdy pushed him, asking “Have you ever testified differently?” Comey again responded, “No.”
But when asked whether he recalled being asked that question doing an earlier House hearing, Comey countered: “No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.” (More on that testimony shortly.) This exchange then followed:
Mr. Gowdy: “Who would you have gotten that from if you were not present for the interview?”
Mr. Comey: “From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.”
Mr. Gowdy: “All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?”
Mr. Comey: “I don’t remember for sure. I think I may have done both, that is, read the 302 and then investigators directly. I just don’t remember that.”
President Trump fired Comey on May 9, 2017, so the 302 of the Flynn interview Comey read must have been written before then. Why then was a new 302 drafted on August 22, 2017? And by whom?
It appears that Mueller isn’t dealing from the top of the deck and that Judge Sullivan has caught him in the process of defrauding his court.