As I speculated on Friday, there is, it turns out, an original 302 of the Michael Flynn interview done by FBI agents Strzok and Pientka on 24 January 2017. Mueller filed it under seal, and Judge Emmet Sullivan ordered that it be filed publicly, with redactions. That was done on Monday, 17 December.
There are 302s for the 24 January interview with two different “entry dates,” or dates of entry into the FBI document system. One date is 15 February 2017. The other is 31 May 2017. I haven’t been able to discover why that’s the case as of this writing. But an initial inspection of the two documents – which are both in the PDF at the link – appears to indicate no differences in wording between them. Both are five pages long, and the differences in where words appear on the pages seems to be due to slightly different letter spacing, and thus where lines break.
Superficially, the unredacted portions appear to make Mueller’s case for him, when set beside the charging document on Flynn, filed by Mueller on 1 December 2017. Mueller lists two instances in which the FBI apparently had records of communications – between Flynn and Russian Ambassador Kislyak – for which Flynn’s stated recollections did not match up. The instances involved the UN vote in December 2016 on Israeli settlements, which the Obama administration was determined to hold, for the purpose of entering a politically damaging abstention by the United States; and the sanctions imposed on Russia by Obama as retaliation for the attempted Russian election interference. The date of imposition for those sanctions was 28 December 2016.
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That said, two big things stand out to me. One is general; the other specific. The specific thing is the big one.
Observation one: A challenging, non-sequential interview
The general observation is that Mueller organized the charges about Flynn’s lying much more carefully and sequentially than Flynn was apparently asked about the relevant phones calls during the 24 January interview.
There is nothing in the 302 to indicate that the FBI agents spotted Flynn any context. Unless they have mixed around the sequence of questions and responses in their notes after the fact, they appear to have asked Flynn a series of random questions that didn’t have a theme or sequential logic.
I’m sure that’s good interview technique if you’re trying to catch someone you have suspicions about in a lie or inconsistency. On the other hand, for honest as well as dishonest interview subjects, it makes faulty recollections more likely.
If you’re satisfied on this point – read the 302 yourself – feel free to jump down to the specific observation at the section break.
For those who want the full treatment: consider the sequence in which we learn the following from reading the 302.
1. Flynn was in the Dominican Republic on vacation with his wife right after Christmas in 2016. On 28 December, Kislyak texted Flynn and asked him to call. Flynn told the agents cell reception was bad and he wasn’t checking his messages regularly. He didn’t see that text until the following day. Flynn called back shortly after seeing it, and the two of them discussed something that is redacted in the text. (I notice right away that since it’s redacted, we don’t know what Flynn said that conversation was about.)
2. Flynn remembered a closed door meeting with Kislyak after the election. We don’t know the date of it, or what it was about, because the topic is hidden by about 10 lines of redacted text. It could have been in November or January, for all we know.
3. The agents asked if Flynn remembered talking to Kislyak about the UN vote on Israel. Flynn thanked them for the reminder and said he did. They discussed his actions, and the list of nations whose representatives Flynn called before the vote. Flynn said he did not make requests to Kislyak about delaying the vote in the UN or casting Russia’s vote a certain way.
The relevant events here occurred on 21, 22, and 23 December, according to what Mueller included in the charging document.
4. The agents asked Flynn if he remembered discussing with Kislyak the expulsion of Russians from the U.S. in reaction to the Russian hacking activities surrounding the election. Flynn said he didn’t, and seemed to have trouble pulling that information out of memory.
This reference is to the 28 December imposition of sanctions by Obama – and note that that’s how Mueller refers to it. He calls it a discussion about “U.S. Sanctions” in the charging document. Mueller in fact makes no reference to “expulsions,” closure of Russian properties, or “hacking.” Those, however, according to the 302, were the terms in which Flynn was questioned about the topic.
Eventually Flynn apparently did recall discussing expulsions. He said he did not recall asking that Russia not escalate the situation. His words when asked if he remembered doing that were “Not really. I don’t remember. It wasn’t, ‘Don’t do anything.’” It seems he did at some point recall that there were to be 35 expulsions, but it’s not clear from the 302 if he remembered that spontaneously, without any prompting, or if the agents elicited that detail from him with a line of questioning.
5. The agents also asked if Flynn remembered Kislyak telling him Russia had decided not to escalate the expulsions situation because of a request from the Trump team, made by Flynn. Flynn said he didn’t remember that, although there might have been such a discussion.
6. At this point, on the last page of the 302, we learn that Flynn said he had “four to five” calls on that day – which would have been 29 December – about the topic of the “expulsions.” Note that 29 December was the day Flynn talked to Kislyak about the other, redacted topic as well (see item 1 above). Flynn himself mentioned that (see the bottom of page 4 of the 302).
In Flynn’s mind, it is apparent from the 302’s account that he was thinking about 29 December in answering these questions; i.e., after the 24-hour delay in responding to the text Kislyak sent him on 28 December. Apparently, that delay due to comms problems was what stood out in Flynn’s mind.
According to Mueller’s charging document, it was on 31 December that Kislyak spoke to Flynn – and that means Kislyak spoke to Flynn – about Russia not escalating the situation due to team Trump’s request. It may be, either way, that Flynn simply didn’t remember that, but it’s a meaningful point that the conversation didn’t happen on the day Flynn had been led by the line of questioning to think about.
If this sounds like a topsy-turvy series of snippets about events between 8 November 2016 and 20 January 2017, well, that’s what it sounds like to me. When asked with no preparatory discussion what he remembered about specific conversations, what’s recorded in the 302 is – assuming we can trust it – what Flynn recalled and said.
Almost all of it comes off as a set of meaningless discrepancies, probably of interpretation: either of what the agents were asking, or of how Flynn perceived the events and conversations.
Observation two: A very specific point
But there’s one aspect of it that doesn’t come off that way, when we look at the charging document from 1 December 2017.
That aspect is the point emphasized by Mueller in the charges: that Flynn spoke to a “senior member of the presidential transition team” in each of the two instances, and was executing an order from the senior member in his discussions with Kislyak. The impact of Mueller’s charges depends entirely on using the orders from seniors to tie off any wiggle room in Flynn’s faulty recollections.
Mueller certainly makes it sound as if Flynn lied to the FBI by speaking of not remembering things, or having only vague recollections, or – to rush to the reductionist conclusion – not linking what he said or remembered to the instructions he was given by the senior team member, which Mueller knows about. (This person is thought in at least one of the instances – the “expulsions”/sanctions discussion – to have been Mike Pence.)
But here’s what we have to keep in mind. Not only did Flynn have no reason to think the FBI knew what instructions he had received, it was in an ethical sense a gross abuse of the surveillance system for the Obama administration, or the FBI or Mueller afterward, to retrieve information on the phone calls of the transition team.
Remember, those phone calls didn’t involve any Russians. They were solely between the American members of the Trump transition team. Presumably, they were under surveillance because of the FISA warrant obtained on Carter Page, which enabled the FBI to perform surveillance of the Trump team because of the “two-hop” rule – even though Page had nothing at all to do with the Trump transition.
Flynn had no obligation, and not even any reason, to speak to the FBI agents as if they must know he had spoken to the transition team seniors at particular times. He had no reason to think that consciousness of having done so would be a token of bona fides that they might be looking for. As far as Flynn knew, he was only answering questions about what he remembered regarding conversations with Russians, particularly Kislyak.
Moreover, as a senior team member himself, Flynn would think specifically in terms of not discussing the deliberations of seniors on the team. As far as he knew, the FBI interview was friendly, and was about counterintelligence questions – which meant it was not about deliberations within the Trump team. There was nothing the slightest bit unresponsive about Flynn’s omitting discussion of what Mike Pence or any other senior team official said to him, or vice versa.
Nothing in the 302 indicates that he was asked if he spoke to the senior members of the transition team, or if he got instructions from them, or on what dates such communications occurred.
If he had been asked that – well, I can’t answer for Flynn, but I would certainly have smelled a rat, if I were in his position. My going-in assumption would be that such communications were privileged, and I would want to consult with the president’s counsel before giving answers about it. In fact, I assume the FBI agents were well aware that would be the obvious reaction.
So what stands out to me like a throbbing sore thumb here is a set of passages in Mueller’s charging document: paragraphs 3.c, 3.e, and 3.h; and paragraph 4.b.
Those paragraphs, with their specificity, make it clear that the FBI had the Trump transition team under surveillance.
(Could Mueller have assembled the timeline of phone calls he presents in the charging document by another method? Conceivably; e.g., by individually questioning other members of the transition team who might have remembered those phone calls. But the confidence with which Mueller gives his account, and the lack of either caveat or evidentiary reference for the existence of those calls, is a strong indicator that Mueller knew about them because of targeted surveillance.)
Others made the point on Monday that there’s nothing actionable to be made of anything Flynn said he couldn’t remember. With no underlying crime, it couldn’t be obstruction of justice for Flynn to have had flawed recollections, or even to have lied by omission. And Mueller alleges no underlying crime.
Julie Kelly has an additional interesting theory at American Greatness, although I don’t know how far down that road I would go. It seems to open a can of worms where we don’t need the worms to explain what happened. That said, it’s worth filing for future reference.
But the real “money” point exposed from Monday’s work is that Mueller couldn’t have made his entrapment case if he hadn’t known everything that was said to and by Flynn in communications with the Trump team. To make his case against Flynn, Mueller had to assemble a structured timeline that depended on the Trump team itself being under surveillance by the FBI.
And Mueller had what he needed for that.
