Attorney Sidney Powell and General Flynn

Defence Attorney Sydney Powell and Michael Flynn
The legal team for retired Lt. Gen. Michael Flynn cited the Justice Department watchdog's bombshell report on Foreign Intelligence Surveillance Act abuse as the former Trump national security adviser seeks to have the government's case against him dismissed.

"Even though the investigation pertains to the abuses of the FISA process, not the FBI and DOJ's misconduct regarding Mr. Flynn, the IG report simultaneously documents at least some of FISA process abuses and misconduct against Mr. Flynn," lead defense counsel Sidney Powell told a federal court last week. "The IG report is replete with exculpatory evidence that, had it been known to Mr. Flynn, he never would have pled guilty."

Flynn, 61, pleaded guilty in December 2017 for lying to investigators about his conversations with then-Russian Ambassador to the U.S. Sergey Kislyak, but last week he told the U.S. District Court in Washington, D.C., that "in truth, I never lied" and "I am innocent of this crime." Powell, a former federal prosecutor, took over representing Flynn last summer.

Powell said "the case against Mr. Flynn should be dismissed immediately for this egregious abuse of power and trust" laid out in Inspector General Michael Horowitz's report.


Powell pointed to a revelation that showed the intelligence briefing the FBI gave to Trump's team in August 2016 during the presidential campaign was actually a "pretext" to gather evidence to help in the counterintelligence investigation into Trump's campaign. The FBI agent who led that briefing, known as "SSA 1" in Horowitz's report but believed to be FBI supervisory special agent Joseph Pientka, was the same man who accompanied fired FBI special agent Peter Strzok in their controversial interview of Flynn in January 2017.

Flynn's defense team considers the January 2017 interview to be a setup by then-FBI Director James Comey and disputes the accuracy of the FBI interview notes from the meeting — claims the DOJ has rejected as "conspiracy theories."

"From the FBI's insertion of SSA 1 into the August 17, 2016, presidential briefing of candidate Trump and Mr. Flynn, to the former director of the FBI bragging and laughing on national television about his own cleverness and violations of FBI/DOJ rules in dispatching agents to the White House to interview the new president's national security adviser, to the still-missing original FBI FD-302 of the January 24, 2017, interview — everything about this prosecution has violated long-standing standards and policy for the FBI and the DOJ," Powell said.

Horowitz's 467-page report detailed 17 significant errors and omissions in the DOJ and FBI's use of British ex-spy Christopher Steele's salacious and unverified dossier when pursuing FISA warrants against Trump campaign associate Carter Page in 2016 and 2017. The FBI says four members of Trump's campaign, including Flynn, were initially being scrutinized as part of that inquiry. At the conclusion of his investigation, special counsel Robert Mueller could not establish a criminal conspiracy between the Trump campaign and the Kremlin.

Powell pointed to a recent DOJ finding that the final two FISA warrants against Page were "not valid," and she told the court "any and all evidence derived from those warrants regarding Mr. Flynn must be suppressed."

The FBI never told Trump's campaign about its fear that Russians might be attempting to infiltrate his campaign, but Horowitz said the bureau used an intelligence briefing to gather evidence against Trump and Flynn, and he criticized the FBI's decision to use a defensive briefing in this way.

Horowitz's report found a "supervisory special agent was selected to provide the FBI briefings, in part, because Flynn, who was a subject in the ongoing Crossfire Hurricane investigation, would be attending the Trump campaign briefing."

The FBI viewed the briefing of Trump and his advisers "as a possible opportunity to collect information potentially relevant to the Crossfire Hurricane and Flynn investigations."

"We concluded that the FBI's use of this briefing for investigative reasons could potentially interfere with the expectation of trust and good faith among participants in strategic intelligence briefings, thereby frustrating their purpose," according to Horowitz's report.

"SSA 1 was involved in every aspect of the debacle that is Crossfire Hurricane and significant illegal surveillance resulting from it," Powell said.

As part of his plea deal, Flynn agreed to cooperate with Mueller, admitting and then reaffirming his guilt in 2017 and 2018.

Flynn filed to withdraw his guilty plea last month after the DOJ asked Judge Emmet Sullivan to sentence Flynn to up to six months in prison in a reversal of its previous request that the former director of the Defense Intelligence Agency receive probation and no jail time.

Prosecutors, led by U.S. Attorney Jessie Liu, wrote in a filing last week that they stand by the zero-to-six-months recommendation but also noted "probation is a reasonable sentence," too.

Last week, Sullivan said Flynn might have to testify under oath to withdraw his plea deal.

Flynn is scheduled to be sentenced near the end of the month.