- The Washington Times - Sunday, February 2, 2020

The Justice Department’s wiretap abuse report is providing new arguments for two Trump associates and a Russian entrepreneur trying to clear their names but suffering court setbacks, so far.

The Dec. 9 report by Justice Department Inspector General Michael E. Horowitz exposed a string of abuses by FBI agents and lawyers in obtaining four Foreign Intelligence Surveillance Act (FISA) wiretaps on former Trump campaign adviser Carter Page.

On Jan. 30, Mr. Page filed a lawsuit in Chicago against the Democratic National Committee and its law firm, Perkins Coie. The DNC and the Hillary Clinton campaign financed the Kremlin-source dossier the FBI used to persuade a judge to approve spying on Mr. Page. Mr. Page’s new lawsuit says the Horowitz report bolsters his case by exonerating him.

Meanwhile, lawyers for Alexsej Gubarev, a Russian computer-server mogul, have filed a new motion in their libel case against BuzzFeed. It published the dossier on Jan. 10, 2017, including a final December 2016 dossier memo that accused Mr. Gubarev of hacking Democratic Party computers.

Mr. Gubarev has always denied the claim. He is appealing a federal court’s decision to dismiss the defamation case. Mr. Gubarev now cites the Horowitz report in a bid to open the file for new evidence.

And there is the much-watched case of retired Army Lt. Gen. Michael Flynn. Once the nation’s highest-ranking military intelligence officer and national security adviser to President Trump, Flynn stands convicted of lying to the FBI.

In new filings, defense attorney Sidney Powell is citing for the first time Mr. Horowitz’s findings as added proof that Flynn was deceived by the FBI. She wants his guilty plea withdrawn and the case dismissed.

In all three instances — Mr. Page, Mr. Gubarev and Flynn — the IG report came along as their cases were failing. Mr. Page’s lawsuit in another state was dismissed, and Mr. Gubarev lost his libel case in U.S. District Court in Florida.

Michael Flynn

Flynn saw U.S. District Judge Emmet Sullivan on Dec. 16 deny all his attempts to force the government to disclose supposed exculpatory evidence. Judge Sullivan ruled the requests were immaterial or didn’t exist, and set a new sentencing date for later this month.

With the Horowitz report as her new ally, Ms. Powell kept at the battle.

She filed on Jan. 14 a motion to withdraw Flynn’s Dec. 1, 2017, guilty plea, citing the “stunning” IG report. On Jan. 29, she filed again, this time asking the judge to dismiss the case for alleged improper government conduct disclosed by Mr. Horowitz.

“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,” Ms. Powell wrote. “The IG Report reveals information that is exculpatory, material, and favorable to the defense, which the government did not previously disclose to Mr. Flynn.”

Though the focus was FISA and Mr. Page, not Flynn, Ms. Powell said the IG provided a broader narration of how the FBI targeted Trump people.

For example, the FBI chose Flynn on Aug. 16, 2016, to be one of four Trump campaign advisers to be investigated in any Trump-Russia election conspiracy.

The next day, it sent an agent described as supervisory special agent 1 (SSA1) to visit Trump campaign headquarters under the guise of delivering a defensive briefing on Russia. The real reason: Flynn planned to attend and the FBI wanted to collect information on him, according to the IG.

Mr. Horowitz testified to a Senate panel that there was never any defense briefing to alert Trump people on what the Kremlin was doing to interfere in the election.

The FBI did not seek Justice Department approval before meeting with the campaign on Aug. 17, the IG said.

“SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for ‘investigative purposes’ anything Mr. Flynn and Mr. Trump said in that meeting,” Ms. Powell argued.

SSA 1 is agent Joe Pientka, a supervisor in Crossfire Hurricane, the FBI Trump probe headed by agent Peter Strzok, who later was fired for misconduct. It was the Strzok-Pientka tandem who visited Flynn at the White House on Jan. 24, 2017.

Flynn lied to them about his phone discussions with Russian Ambassador Sergey Kislyak. He now says he didn’t lie and was under duress by the special prosecutor, who threatened to target his son.

Mr. Pientka’s name appears in an official House transcript of an interview with Mr. Strzok. A congressman identified him as Mr. Strzok’s top colleague. In a court proceeding, Ms. Powell mentions Mr. Pientka as the drafter of the first 302, or interview report, on the Flynn White House interview.

Ms. Powell said the FBI misled Flynn — even to the point of discouraging him from contacting White House counsel — by failing to tell him he had been selected as an investigative target.

Her motion also quotes the Horowitz report as saying Flynn was selected for investigation because of past ties to Russian officials.

She said Flynn, as director of the Defense Intelligence Agency, conducted a number of approved contacts.

There was no evidence that Mr. Flynn was involved in an election conspiracy at the time, according to the IG’s list of why he was tagged. He never faced such charges.

“The government’s conduct in this case shows contempt for the law at every turn,” Ms Powell wrote. “Mr. Flynn was targeted and deliberately destroyed by corrupt factions within the FBI and intelligence community. While Mr. Flynn’s case is not even the focus of the IG Report, the Report reveals illegal, wrongful, and improper conduct that affected Mr. Flynn.”

Brandon L. Van Grack, who prosecuted Flynn while at the special counsel’s office, didn’t address the IG report in his reply. He said he will file a more expansive brief on Ms. Powell’s allegations.

He is calling for a sentence of zero to six months in prison, with probation as a possibility.

Judge Sullivan, in rejecting Ms. Powell’s bid for more documents on Dec. 16, defended Mr. Strzok’s 302 drafting. He said edits made did not materially change Flynn’s words. On the issue of Mr. Strzok not believing at first that Flynn lied, Judge Sullivan said the retired general was apprised of this before he pleaded guilty.

Mr. Strzok told House investigators in 2018: “I did not, have not, in the course of drafting any 302 make any change or do anything other than ensure that 302 was an accurate representation of the statements of the person being interviewed.”

Carter Page

Mr. Page previously has filed unsuccessful lawsuits. He filed a new one last week, and this time he has two new additions: Pierce Bainbridge, a Chicago law firm, and the Horowitz report, which meticulously listed the wrongs committed by the FBI in spying on Mr. Page.

Mr. Page — a Naval Academy graduate, energy investor, Moscow banker in the mid-2000s and an informal adviser to the Trump campaign — felt the full brunt of the Democratic Party-financed dossier. He now describes himself as professionally devastated and a near-fugitive subject to death threats.

Written by former British intelligence officer Christopher Steele, the dossier told of secret meetings in Moscow in July 2016 between Mr. Page and two Kremlin figures and a discussion of bribes for sanctions relief. Mr. Steele’s sources also said Mr. Page worked with former campaign chairman Paul Manafort in an alliance with the Kremlin for election interference.

None of this proved true.

The dossier was funded by the Democratic National Committee and by the Clinton team through its law firm, Perkins Coie. Clinton operatives spread the unverified Page allegations all over Washington, from the White House to the State Department to Justice and the FBI, and to more than a dozen reporters.

The FBI embraced Mr. Steele’s claims, inserting them in surveillance warrants to win a judge’s OK. The Horowitz report said the FBI never corroborated any of Mr. Steele’s allegations and left out exculpatory findings.

Mr. Page now is suing both the DNC and Perkins Coie.

“The Inspector General of the United States Department of Justice concluded in a 478-page report that Fusion GPS’ report was nothing but fiction, based entirely on unverified and uncorroborated second-hand information,” Pierce Bainbridge said in a Jan. 30 press release. “As a result, Dr. Page’s reputation has been irreparably harmed, his business prospects devastated, and he has been forced to essentially live a fugitive life for years following numerous death threats.”

The lawsuit states: “The Steele Dossier was not just unverified, but included clear errors. The reports had obvious errors that could have been easily fact-checked as incorrect — had Defendants or their allies had any interest in doing so.”

Representing himself, Mr. Page originally filed suit in 2018 against the DNC in Oklahoma, but a judge dismissed it on jurisdictional grounds. The new lawsuit says Perkins Coie’s Chicago office made significant decisions in handling dossier issues.

Mr. Page’s defamation lawsuit against Yahoo News and others also was dismissed.

“This complaint recycles allegations by Carter Page that were dismissed by a federal judge in Oklahoma last year, and we expect that this latest lawsuit will likewise be dismissed,” said a Perkins Coie spokesperson.

Aleksej Gubarev

Like Mr. Page, Mr. Gubarev has struck out so far. His lawsuit against BuzzFeed was dismissed in December 2018 because, the Florida District Court judge said, the dossier was part of a government investigation and thus the news website had a legal privilege to publish.

As his appeal was pending, the Horowitz findings surfaced, with one new fact Mr. Gubarev’s team didn’t know: the last dossier memo, Steele report No. 166, the one containing the Gubarev allegation, was not in FBI hands when BuzzFeed posted it.

The copy came from David Kramer, an associate of the late Sen. John McCain, who had visited Mr. Steele in London. Mr. Kramer became a post-election dossier agent, spreading its claims around Washington in December 2016.

Mr. Steele, in a London court where he faces a Gubarev libel lawsuit, testified that the 17th memo was based on call-in tips, unverified. It said Mr. Gubarev masterminded the hacking under pressure from Russian intelligence. Mr. Gubarev has always denied this and there is no indication in any government report that he was involved.

“Report 166 clearly could not have been part of any ‘official proceeding’ if no government agency even knew of it at the time of publication,” argued Val Gurvits, one of three attorneys filing the appeals motion.

The evidence that the FBI owned report No. 166 came in an affidavit from Agent Bill Priestap.

Mr. Gurvits argued: “It would risk a miscarriage of justice for the Court not to recognize that the Horowitz Report’s findings conflict with Mr. Priestap’s affidavit … The FBI could not have investigated the claims of a memo it did not yet have … Accordingly, to achieve justice and judicial economy, this Court should recognize the Horowitz Report as evidence that significantly undercuts the District Court’s key factual conclusion.”

Mr. Gurvits wants the U.S. Court of Appeals for the 11th Circuit in Atlanta to reopen the case record to include the Horowitz evidence or send it back to district court to reconsider the dismissal.

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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