Mueller filing on Flynn interview does NOT include interview notes, original 302

Mueller filing on Flynn interview does NOT include interview notes, original 302
Robert S. Mueller III. (Image: Screen grab of Fox News video)

At this point, it’s hard not to draw this conclusion: Robert Mueller is trying to delay the process of Michael Flynn’s sentencing, by failing to comply fully with Judge Emmet Sullivan’s order to produce the records of the Flynn interview on 24 January 2017.

We can only guess why Mueller would want to drag this out.  The simplest, most obvious explanation would be that Mueller either doesn’t have original documents from the FBI, because they were (for some inexplicable reason) never produced, or lost; or because the original documents would undermine the basis of Mueller’s perjury case against Flynn.

What Mueller did file is the following: (a) an argument brief against Flynn with a narrative about his “lying,” based on references to media accounts and observations from non-original sources; (b) notes made after the interview by then-Deputy FBI Director Andrew McCabe, who was not present at the interview; and (c) a 302 documenting an interview with Peter Strzok in July 2017.

In other words, the last item is the record of what Peter Strzok told an interviewer about the Flynn interview, six months after the Flynn interview.  It appears to be the basis of the 302 dated 22 August 2017, or at least that’s what Byron York concludes.  (The language seems to match up, at any rate.)

A Scribd copy of the redacted filing is embedded below (courtesy of Conservative Treehouse).

As noted earlier this week, Judge Sullivan authorized the parties to file under seal.  If Mueller has filed something separately under seal, it isn’t mentioned in the public filing.  Sara Carter has already posted an article on the Mueller filing, and doesn’t mention any additional filings under seal.

The bottom line on this is that Mueller has apparently not filed anything that would provide evidence of Flynn’s lying.  All we seem to have is Mueller’s word for it that Flynn lied in the interview.  Nothing on paper documents what the lie was, or how it was elicited from Flynn by the interviewing agents, Peter Strzok and Joe Pientka.

Instead of that evidence, Mueller constructs a case that in January 2017, Flynn contradicted what the FBI knew to be true about his discussions with Russian Ambassador Sergey Kislyak – not in the 24 January interview, but in commentary by Flynn or others recorded in the media.

Indeed, Mueller presents – somewhat startlingly, in my view – the David Ignatius article from the Washington Post on 12 January 2017, as the basis for claiming that Flynn was lying about his conversations with the Russian ambassador.

Scribd document of Mueller filing. Author screen cap

The Ignatius article was the fruit of a felony crime (the leak of classified information from someone in the Obama administration).  It’s also hearsay.  It’s not clear why Mueller would brief the court on that basis, rather than under seal using the original intelligence, which the court is fully competent to review and assess.

This is an especially significant question after the judge ordered the production of original documents, and got back instead records that do not meet the FBI standard for documenting the original interview as evidence.

Maybe the brief against Flynn was written more for public consumption than for Judge Sullivan’s benefit.  If so, Sullivan doesn’t sound like the kind of judge who will suffer gladly such political grandstanding on his court’s time.

Assuming nothing else has been filed under seal, the whole situation is inexcusable, in the literal sense.  There is no excuse for it.  Sara Carter had these comments from an experienced FBI agent:

FBI Supervisory Agent Jeff Danik told SaraACarter.com that Sullivan must also request all the communications between the two agents, as well as their supervisors around the August 2017 time-frame in order to get a complete and accurate picture of what transpired. Danik, who is an expert in FBI policy, says it is imperative that Sullivan also request “the workflow chart, which would show one-hundred percent, when the 302s were created when they were sent to a supervisor and who approved them.”

He stressed, “the bureau policy – the absolute FBI policy – is that the notes must be placed in the system in a 1-A file within five days of the interview.” Danik said that the handwritten notes get placed into the FBI Sentinel System, which is the FBI’s main record keeping system.

“Anything beyond five business days is a problem, eight months is a disaster,” he added.

So the interview notes from the 24 January meeting should have been placed in the system by 29 January 2017 – and Mueller should certainly have them.

Presumably, Flynn’s defense will file everything it has on the 24 January interview.  In this case, it’s a problem either way, whether Flynn’s team has exactly what Mueller filed, or whether the filings are different.  It’s hard to imagine Sullivan being willing to go to sentencing on schedule (18 December) in this situation.

As others like Sara Carter have noted, the unredacted portions of what Mueller did file tell us what we’ve been hearing all along: that Strzok and Pientka saw no sign in the interview that Flynn was lying, or had consciousness of lying.  They also tell us Andrew McCabe indeed advised Flynn to the effect that “the quickest” way to close the loop on the FBI’s questions would be to have an interview with only Flynn and the agents present.

Once again, we are faced with the question: What kind of show are these people running?

Mueller Reply to Judge Sull… by on Scribd

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J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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