If Judge Emmet Sullivan is true to his pattern of rigorously enforcing rules of evidence and discovery, the next week may be very interesting, not only for Michael Flynn but for the Justice Department, the FBI, and the Mueller investigation.
On Tuesday, Byron York published an article on the sentencing memo submitted by Michael Flynn’s defense team, which stated that when the FBI interviewed Flynn on 24 January 2017, (then) Deputy Director Andrew McCabe suggested that the interview be conducted without a lawyer present for Flynn. (McCabe arranged the interview.)
Former FBI Deputy Director Andrew McCabe, who arranged the bureau’s interview with then-national security adviser Michael Flynn at the White House on Jan. 24, 2017 — the interview that ultimately led to Flynn’s guilty plea on one count of making false statements — suggested Flynn not have a lawyer present at the session, according to newly-filed court documents. In addition, FBI officials, along with the two agents who interviewed Flynn, decided specifically not to warn him that there would be penalties for making false statements because the agents wanted to ensure that Flynn was “relaxed” during the session.
In 2018, controversy has swirled around that interview, which was conducted by Agents Peter Strzok and Joe Pientka. Key reasons for the controversy: the FBI’s Form 302 record of the interview wasn’t completed until seven months later, on 22 August 2017 – and as early as January 2018, sources with knowledge of the DOJ Inspector General investigation were telling journalist Sara Carter that McCabe had exerted pressure to have the contents of the 302 altered from the original.
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This was of special concern because of testimony that Strzok and Pientka had originally said, after the interview, that they saw no evidence of deception from Flynn. They didn’t think he was lying. Congress (the House Intelligence Committee) had that testimony from James Comey on 2 March 2017. McCabe told HPSCI the same thing on 19 December 2017.
Fast-forward to 2018. Several months after the initial reporting from Sara Carter, the Intelligence Committee in late April 2018 published a report on the findings from its “Russia” investigation, which included excerpts from the testimony from Comey and McCabe. That report was the first hard documentation to the public about the original Flynn interview.
Since Flynn had pleaded to one count of false information to the FBI in December 2017, and it was apparently based on that 24 January 2017 interview, a number of outlets expressed puzzlement about the plea. (Flynn had lost his home at that point – having sold it to pay legal bills – and reportedly took a plea to avert threats from Mueller to rake his son over the coals. The statement cited from McCabe is of interest, because of the reference to a “conundrum”: “although the agents didn’t detect deception in the statements he made during the interview…the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” This is a key area in which outside examination is essential. If Flynn’s mindset was based on no idea of wrongdoing – e.g., he wasn’t thinking at all about the Logan Act or some other spurious pretext for suspicion – it’s very possible that he was giving answers fully consistent with what he thought the line of questioning was about. We don’t know, and can’t know without seeing the questions, what context the FBI agents were framing for him to given answers in. There’s been no trial, with open discovery and cross-examination in court. The only thing we’ve had to go on is the conclusion of the prosecution that Flynn lied.)
The Senate Judiciary Committee requested documents on the Flynn interview back in 2017, after Comey’s initial testimony. Deputy AG Rod Rosenstein had never provided them. In May 2018, after the House Intel report was published, Senator Charles Grassley (R-IA) renewed the request, based on the cited testimony of both Comey and McCabe.
And in June 2018, Grassley referred the concern about potential hanky-panky with the 302 and other interview documents to DOJ Inspector General Michael Horowitz. (See Grassley’s letter here.)
Senate investigators suspect Gen. Flynn's 302s were edited by McCabe, referred matter to IG Horowitz
— Paul Sperry (@paulsperry_) June 7, 2018
Also in June, Rep. Mark Meadows (R-NC) told The Hill the committee was concerned that McCabe had had the Flynn 302 altered, and had discussed that with Horowitz.
Now, after the filing by Michael Flynn’s defense team this week, someone with the juice to do something about it may finally get a look at the interview memos and the Form 302 for the interview of Flynn in January 2017. Late reporting on Wednesday 12 December indicates that Judge Sullivan, now presiding over Flynn’s case, has ordered both the prosecution and the defense to produce their copies of the documents to the court.
Sullivan is allowing them to file the documents under seal. That means he will see them, but they won’t be available to the public.
https://twitter.com/seanmdav/status/1073002272416772097
But this is an opportunity Congress has been trying to arrange for more than a year, to inspect the actual documents and discern whether there were alterations made, either to the original conclusions or – potentially – to an initial version of the 302. It’s also an opportunity no one has had yet to review the whole context of the interview, as discussed above, and consider both the answers and the questions, in light of what the prosecution, the DOJ, and the FBI have said this whole thing is about. Was the perjury trap laid fairly? We still don’t know.
Sullivan is known, again, for applying a rigorous standard on these matters. (He’s the judge who ordered Mueller to fulfill his discovery obligations completely and turn over to the defense all potentially exculpatory material – i.e., when Sullivan took over the case – after an apparently unsatisfactory review of Mueller’s performance up to that point.) If Flynn is going to get a fair shake, Sullivan is probably his best opportunity.
Sean Davis of the Federalist tweeted a short timeline of the interview documents and the potential waypoints of alteration.
https://twitter.com/seanmdav/status/1072901563897823232
If we take his timeline and add to it (with the Comey testimony), it looks like this (asterisks for added material:
On January 24, 2017, FBI agents Peter Strzok and Joe Pientka interviewed Flynn.
* On March 2, 2017, James Comey testified to the House Intel Committee that Flynn had shown no deception in that interview.
* On March 15, 2017, Comey briefed the Senate Judiciary Committee that Flynn had shown no deception in that interview.
On August 2, 2017, Rosenstein issued new instructions to Mueller.
On August 16, 2017, ABC News reported Peter Strzok had been fired by Mueller.
On August 22, 2017, the FBI 302 on Flynn was written.
* On December 1, 2017, Flynn pleaded to one count of giving false information.
* On December 19, 2017, Andrew McCabe testified to the House Intel Committee that Flynn had shown no deception in the January 2017 interview.
We can’t know if the documentary record will enable Judge Sullivan to detect any alterations that may have been made. But this may be the best opportunity we’ll have to find out how a witness in whom no deception was detected, based on testimony made by the FBI leadership both before and after his December 2017 plea, was charged with lying in the “friendly” interview on 24 January 2017.
