The unusual move by Attorney General William P. Barr to open an independent review of the prosecution of retired Army Lt. Gen. Michael Flynn came after months of legal broadsides from defense attorney Sidney Powell.
But it may have been Ms. Powell’s first salvo, a private letter to Mr. Barr in June, that alerted him to what the Flynn team believes is a miscarriage of justice.
In her first paragraph, Ms. Powell requested an outside auditor not associated in any way with former special counsel Robert Mueller’s team. She argued that Mr. Mueller’s lawyers threatened Flynn’s son with prosecution to persuade the retired officer to plead guilty to lying to the FBI.
Neither Flynn nor any other Trump associate has been charged in an election conspiracy for which Mr. Mueller was tapped to uncover.
“We request the appointment of new government counsel with no connection to the Special Counsel team of attorneys or agents to conduct review of the entire Flynn case for Brady material that has not been produced and prosecutorial misconduct writ large,” Ms. Powell wrote to Mr. Barr.
“Brady” is a term of exculpatory evidence to which the defense is entitled.
Ms. Powell also asked for “a determination of when, how, and on what basis the first investigation of General Flynn began,” reads the letter stamped confidential.
From that day forward, Ms. Powell, an appeals court specialist and longtime Justice Department critic, filed a series of arguments accusing the FBI and the special counsel team of gross misconduct.
She told The Washington Times she doesn’t know exactly why Mr. Barr acted. “But [I] am guessing it is from what has been revealed in my filings,” she said.
For one, she said, the FBI officially put Flynn under investigation in August 2016 in its Russian election interference probe but didn’t tell him during two encounters over six months.
An agent visited the Trump presidential campaign under the guise of a defensive briefing on Russian interference. In fact the agent was there to surreptitiously investigate Flynn, according to a report by Justice Department Inspector General Michael E. Horowitz.
Six months after opening the probe into Flynn, two FBI agents, including Trump antagonist Peter Strzok, on Jan. 24, 2017, visited Flynn at the White House under the guise of a friendly chat about national security. At that point, the FBI had no evidence of a Trump-Russia conspiracy outside of the Christopher Steele dossier, which Republicans say turned out to be a Kremlin hoax.
During the presidential transition, the U.S. had intercepted calls between Flynn and the Russian ambassador in which they talked about sanctions.
Inside the Obama Justice Department there was talk of investigating Flynn for violating the Logan Act, a 1799 law barring civilian interference in foreign policy for which no one has ever been convicted.
The call was leaked to The Washington Post, whose story mentions the Logan Act. Flynn defenders say it was a sure sign that Obama administration holdovers were trying to destroy Flynn, Mr. Trump’s first national security adviser.
In her June letter to Mr. Barr, Ms. Powell recited her version of events. She said prosecutor Brandon Van Grack later acknowledged that the Flynn call was “perfectly legal.” It did not violate the Logan Act, which appeared to be the basis for the FBI visiting Flynn that day.
“There was no ‘Logan Act violation,’ and everyone knew it,” Ms. Powell wrote. “Yet General Flynn was illegally unmasked by the Obama administration and his call leaked to explode the ‘Russia collusion’ narrative in the press. The FBI interview was worse than ‘entrapment.’ He was led to believe he was having a casual conversation with friends about a training exercise from a day or two before, when in truth, it was a set-up-tantamount to a ‘frame, manipulated by Yates, Comey, Strzok, McCabe, and others to take General Flynn out of the administration. [Mueller team] then used it to pressure him to try to take out President Trump.”
“Yates” is Sally Yates, who was Mr. Obama’s deputy attorney general. “Comey” was FBI Director James B. Comey. “McCabe” was FBI Deputy Director Andrew McCabe.
It was Mr. McCabe who set up the Jan. 24 meeting with Flynn, telling him that if he consulted with the White House counsel, the FBI would have to get its general counsel involved. Flynn said he would not consult a lawyer.
Later, Mr. Comey, fired by Mr. Trump, bragged that he was able to send two FBI agents to the White House without resistance because the place was still in formative disarray.
The inspector general report said the FBI targeted Flynn because, as the head of the Defense Intelligence Agency and during retirement, he had had contacts with Russians. There was no evidence he had been engaged in a conspiracy, and in fact, after nearly three years of probing, there was no such finding in the final Mueller report.
The Barr intervention came after U.S. District Judge Emmet G. Sullivan had rejected all of Ms. Powell’s arguments to date. She claimed that the Mueller team withheld exculpatory evidence and that the FBI maliciously edited 302 interview reports to hurt Flynn.
Flynn last month moved to rescind his December 2017 guilty plea of lying to Mr. Strzok and the other agent.
The Flynn decision is not the first time Mr. Barr has distanced himself from the Mueller prosecutors who remained on the Russia beat to complete criminal cases. He disagreed last week with their sentencing recommendation of up to nine years in prison for former Trump adviser Roger Stone. The four prosecutors promptly quit the case.
Mr. Barr told ABC News he thought the prosecution of Stone was just but the sentence recommendation was too severe. He thought he had worked out a deal that would let the judge decide.
Mr. Barr has taken other steps that have rankled Democrats.
Last spring, he appointed John Durham, the U.S. attorney for Connecticut, to investigate how the Obama Justice Department began the probe into the Trump campaign in 2016.
He has said the FBI “spied” on the campaign — a description that also angered Democrats.
He questioned why it opened such a momentous probe into a presidential campaign based on a conversation over drinks in London between Trump campaign volunteer George Papadopoulos and Australia’s ambassador. The Horowitz report said the FBI never interviewed the ambassador before opening Crossfire Hurricane, the inquiry’s code name, on July 31, 2016.
In TV interviews, Mr. Barr said the FBI acted in “bad faith.” Mr. Horowitz said the FBI committed 17 inaccuracies or omissions of exculpatory information in four wiretap affidavits submitted to judges to spy on Trump volunteer Carter Page. An FBI lawyer altered a CIA email so it said Mr. Page wasn’t an agency asset when in fact he had been.
Mr. Van Grack ended up publicly filing Ms. Powell’s letter in October, perhaps because it contained criticism of Judge Sullivan.
“Probably thought it would embarrass me or give him some kind of leverage. Didn’t work,” Ms. Powell told The Times.
Ms. Powell filed a new motion in late January, this time asking Judge Sullivan to dismiss the charges. She relied heavily on the Horowitz report.
“The IG Report is a scathing indictment of the conduct of the leadership and small group in the FBI that ran this operation against Mr. Flynn,” she said. “This is especially true for the two FBI agents who interviewed Mr. Flynn on January 24, 2017.”
“IG Report evinces that Mr. Flynn has still not been provided with all the evidence of egregious government misconduct dishonestly wielded to destroy the National Security Advisor to President Trump as part of their larger anti-Trump scheme,” she said.
The Horowitz report focused on four Foreign Intelligence Surveillance Act warrants on Mr. Page. The IG said the FBI met the relatively low standard for opening a counterintelligence investigation into Flynn and did not seek FISA spying.
Mr. Van Grack filed a response to Ms. Powell’s motion, arguing that none of her examples of FBI maneuvering amounted to egregious misconduct. He said no material exculpatory evidence has been withheld, with which Judge Sullivan agreed in a December ruling.
The New York Times reported Friday that Mr. Barr tapped Jeffrey Jensen, a former FBI agent who serves as U.S. attorney for the Eastern District of Missouri, to review the Flynn case.