Saturday, May 9

Latest FBI Misconduct Mirrors PA OAG Missteps in Spanier Case

Court documents related to the Flynn case show that top FBI officials did not have sufficient predicate to conduct investigation and withheld exculpatory evidence...the same happened in the Spanier case and other cases

Ray Blehar

May 9, 2020 6:56 PM EDT

According to court filings in the case of former National Security Advisor, retired Lt. Gen. Michael Flynn,  the FBI head of counter-intelligence Bill Priestap framed the impending interview of Flynn in this manner (my emphasis added):

“What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?"
That statement, among other evidence, proved their was insufficient predicate to continue investigating Flynn.  The subsequent interview of Flynn wasn't being conducted to determine if Flynn was guilty of anything, but rather to induce Flynn to commit a crime...."or get him fired." 
The "or get him fired" part of the statement completely damned the FBI and DOJ actions in the case.
When have you ever heard of law enforcement officials wanting to get people fired??
For readers of this blog, the answer is in October 2010 when former PA Attorney General Tom Corbett vowed that that he would eventually cause the removal of PSU President Graham Spanier  From that point forward, the Jerry Sandusky criminal investigation grew legs and got moving. 
Just as in the case of Lt. Gen. Flynn, PA OAG prosecutors and investigators had no direct evidence that tied Spanier to Jerry Sandusky but persisted forward with questioning of Spanier.   The prosecutors then put Spanier before the grand jury with the hopes of catching him in a lie.

PA prosecutors would eventually enlist former PSU General Counsel Cynthia Baldwin to procure evidence that Spanier was untruthful.  Spanier was eventually charged with multiple counts of perjury -- but those charge were rightfully dropped because Spanier's rights were violated.
Similarly, Flynn's right to a fair trial were violated when the FBI and DOJ withheld evidence that resulted in Flynn's offering of a guilty plea.  To be clear, had Flynn possessed that evidence, he would not have pleaded guilty.  
Had the prosecutors shared that information as required by discovery rules, neither Tim Curley nor Gary Schultz would have ever pleaded guilty to child endangerment.   It's also quite obvious that Spanier would never have been convicted had his legal team known about the exculpatory email.
Sadly, the incidents of misconduct at the FBI and the PA OAG aren't isolated cases.
If you recall, referred to the Sandusky Scandal as Duke Lacrosse on steroids.  In the Duke case, District Attorney Mike Nifong was eventually disbarred withholding exculpatory DNA evidence in that case.   The linked column discusses twelve other North Carolina cases where discovery violations led to convictions being overturned.
The Making of a Murderer, a documentary of the Manitowoc, Wisconsin case of Steven Avery, exposes how the police and prosecutors failed to provide exculpatory evidence to Avery's legal team during his Post-Conviction Relief Appeal of a sexual assault.   The documentary paints the picture that top Manitowoc law enforcement officials, some who were related to Avery, had a vendetta against him.  Avery was eventually exonerated by that DNA in the sexual assault case.  Avery was eventually arrested, tried and convicted for a murder years later.  He won a 2019 appeal in the case because prosecutors failed to test the bones for DNA.
Avery could receive a new trial if his legal team can prove that law enforcement acted in bad faith.
Steven Avery was the son of a junk yard owner with limited means.  He was an easy target.  
However, the other cases reveal that no one is safe -- not Generals, not University Presidents, nor star college athletes -- when top law enforcement officials decide to use the criminal justice system to advance personal and/or political agendas.

Coming soon:  Conspiracy Theories and Glass Houses


  1. Flynn was a well-decorated Three Star General. I would suggest that a Lt. General with 33 years military and combat history does not succumb easily to intimidation. The fact is that he spoke with Kislyak about sanctions in an inappropriate manner and lied to the FBI about it. If he was innocent, he should have "stood his ground" and let it play out. He was amply represented. He "caved" because he lied and knew it. Now, Trump's personal attorney - Barr, is using this as an opportunity to attack the FBI as simple Trump Revenge for Comey and crew. This is about Trump's need for revenge more than it is about Flynn and the FBI. So to revise your last paragraph: "The President is using the criminal justice system (Barr) to advance personal and political agendas." I agree with you about PSU and Paterno. JoePa was the target of Freeh and others who were trying to "cover their respective tails" and shift the focus and blame to JoePa. But to draw an analogy regarding the FBI's actions pertaining to Flynn to what happened at PSU is quite a reach. The involvement of the Russians in the election of Trump is amply documented and really denied only by essentially Donald Trump and his servile sycophants. We will see how this plays out when brought before a judge. I suggest that you might have waited until that happens before drawing your conclusion about Flynn and the FBI.

    1. DrJC,
      Thanks for reading the blog and your comments.

      Unfortunately, what you purport to be a fact ("he spoke with Kislyak about sanctions in an inappropriate manner) is flatly refuted by the evidence in the court filing. The FBI knew that there was no misconduct related to Flynn's contacts with Russia -- but that evidence was withheld. As I wrote above, had Flynn's legal team known of this evidence, he would not have pleaded guilty.

      As we found from the McChesney Diary, exculpatory evidence was withheld in the Penn State case. It also indicated evidence tampering in the PSU case. If you recall, the DOJ Inspector General found that the FBI tampered with an email in order to obtain a FISA warrant to conduct surveillance on the Trump campaign associate Carter Page (among many other missteps by the FBI during its investigation of the Trump campaign). Flynn is not an isolated incident, but part of a pattern of well documented abuses by the top echelon of the FBI. As you are aware, former FBI Director James Comey was removed because, among other things, he was leaking confidential information to the press. Gee, didn't that happen in the PSU case too?

      I believe that I've shown considerable evidence that it is correct to compare the two cases. Law enforcement and prosecutors acted in bad faith and were carrying out political and personal vendettas.

      In closing, the evidence in the case is what it is. How Judge Sullivan rules on the case doesn't change the evidence. That said, Sullivan has little room, based on Supreme Court and Appeals Court precedence, to deny the motion to dismiss. At best, he may change the dismissal to "without prejudice."

    2. Dr JC,
      Believe it or not, I did not realize that you were connecting these two comments the first time I read them:

      "But to draw an analogy regarding the FBI's actions pertaining to Flynn to what happened at PSU is quite a reach. The involvement of the Russians in the election of Trump is amply documented and really denied only by essentially Donald Trump and his servile sycophants."

      The reason I didn't connect the two comments is that LTG Flynn's charges (and guilty plea) had nothing to do with Russian meddling in the 2016 election.

      As you are aware, the Mueller probe cleared anyone in the Trump campaign of colluding with the Russian government to interfere in the 2016 election. That's a fact -- not the view of "Trump and his servile sychophants.

      In closing, I'll note that the unclassified 2017 Intelligence Community Assessment of Russian interference in the 2016 Presidential election draws no conclusion on whether that interference had any impact on the results.

    3. Ray, if you would indulge me. Could you send me your email address. I would like to back channel you something I wrote that is off this subject. It is controversial and I would like your opinion.

    4. Joe,
      I sent you a private message on BWI.