Late Friday, Special Counsel Robert Mueller’s office filed its reply brief to the sentencing memorandum Michael Flynn had filed early last week with a D.C. federal court. Mueller’s reply brief revealed several new tidbits about the special counsel’s probe and the earlier investigation into Flynn, President Donald Trump’s short-lived national security advisor.
Mueller’s filing came in response to a hastily issued order by presiding judge Emmet Sullivan, which directed the government to file its reply brief by 3 p.m. on December 14. Sullivan also directed Flynn to file with the court two documents he referenced in his sentencing memorandum: a January 24, 2017 memorandum authored by former FBI deputy director Andrew McCabe, and a FD-302 interview summary dated August 22, 2017.
Garnering the most attention was Sullivan’s order to the special counsel “to file on the docket any 302s or memoranda relevant to the circumstances discussed on pages 7-9 of the defendant’s sentencing memorandum.”
Since news broke of Flynn’s guilty plea last year on one count of lying to the FBI, there has been speculation about the contents of the FBI’s interview summary form, or FD-302, sparked by reports that the two FBI agents who questioned Flynn did not think he lied during their interview. The public’s interest in the interview summary form (or forms) then peaked when Flynn cited to a FD-302 dated August 22, 2017 in his sentencing memo.
The FBI had interviewed Flynn on January 24, 2017. Why a seven-month delay in completing the 302? And why didn’t Flynn reference the initial 302 drafted following his interview? From Sullivan’s order directing Mueller’s team to file “any 302s or memoranda,” the presiding judge apparently wondered the same thing.
Then came Friday’s filing of the special counsel’s reply brief, which included in its appendices McCabe’s January 24, 2017 memorandum and the FD-302 recorded on August 22, 2017, the latter of which summarized the FBI’s interview with now-former FBI agent Peter Strzok. But no other 302s were included.
The Elephant Not In The Room
The absence of any other 302s or memoranda in the docket prompted another round of speculation. Did Mueller really just ignore a federal judge’s order?
Not likely. Rather, the special counsel likely filed a motion to file the other 302s or memoranda under seal (as Sullivan directed the parties to do if they believed sealing the records was proper) and tendered them to the court under seal. The electronic docket for Flynn’s case supports this inference.
If you scan the docket entries from the last several months, you will notice that minute orders and set/reset deadlines are not assigned a docket entry, such as the two entered between dockets 41 and 42. You will also notice that sometimes there are missing docket numbers, such as the docket entries 43 and 44 and docket entries 48 and 49. And if you read the December 12, 2018 minute orders, they reveal the substance of two of those missing docket entries: Docket 48 is the government’s motion for leave to file an unredacted addendum to its sentencing memorandum under seal and docket 49 is Flynn’s motion for leave to file an unredacted version of his sentencing memorandum under seal.
Docket entry 50 then consists of Flynn’s redacted sentencing memorandum and the next entry is Friday’s recording at docket 56 of the government’s reply brief. That leaves the five docket entries between 50 and 56 unaccounted for.
The most logical explanation for this void? A motion filed by Mueller’s office to keep the original 302 material sealed, as well as Mueller’s motion to file unredacted versions of the Strzok’s 302 statement and McCabe’s January 24, 2017 memorandum under seal. Flynn may have filed his own motion to seal or may have filed a response to the special counsel’s motion.
We will know more this week, when Sullivan rules on the presumably filed motions to seal. But given these facts, it would be unwise to assume Mueller’s team ignored Sullivan’s order, or that the lack of a filing indicates that the earlier 302 was destroyed.
We Are Still Learning Stuff
Even though the public does not yet have access to the original 302 completed following Flynn’s interview, there are still some significant points meriting mention revealed in Friday’s filing. Let’s begin with something more of an oddity than a revelation.
In his January 24, 2017, memorandum, McCabe claims that Flynn called him, but in the special counsel’s reply brief Mueller’s office states, “McCabe called defendant to arrange the interview and explained that the FBI needed to talk to him in light of the ‘media coverage and public discussion about his recent contacts with Russian representatives.’”
In his sentencing memorandum, Flynn also states that he “received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.” The 302 summary of Strzok’s interview similarly states that “McCabe called Flynn at 12:30 p.m.”
So which was it? Did McCabe call Flynn or Flynn call McCabe? Who initiated the telephone call may seem inconsequential—and it may be inconsequential—but given the breadth and importance of the special counsel’s investigation, this inconsistency should be explained. It could be a simple mistake, or it could be something more, say McCabe attempting to minimize his role in initiating the questioning of Flynn by claiming the interview came up during a call Flynn initiated about other matters.
After all, we now know from Strzok’s 302 that when Comey informed then-Acting Attorney General Sally Yates (whom Strzok and Comey updated “at various times” about “the entire span of the FBI’s Russian election interference/collusion investigations”) that agents were interviewing Flynn, “she was not happy.” Also, according to Strzok’s just-filed 302, there was a later argument about the FBI’s decision to interview Flynn, although the identity of those arguing over the interview is redacted.
More significantly, though, Friday’s filing revealed a lot about the 302s involved in this case. The first thing we learned: The August 22, 2017 FD-302 Flynn cited in his sentencing memorandum is not a summary of the FBI’s January 24, 2017 interview of Flynn. Rather, it is a summary of the FBI’s interview with Strzok “to collect certain information regarding Strzok’s involvement in various aspects of what has become the Special Counsel’s investigation.” In fact, in its reply brief, the special counsel’s office made a point of stressing that Strzok was not interviewed “as part of the investigation of [Flynn] or any investigation of Strzok’s conduct.”
So, the 302 filed with the court consists of Strzok’s recollection of his interview of Flynn some seven months prior. Nonetheless, Strzok’s 302 adds texture to our understanding of the circumstances surrounding the initial interview. First, Strzok’s 302 confirms yet again the existence of an original 302 summarizing Flynn’s January interview. “Strzok conducted the interview and [the second FBI agent] was primarily responsible for taking notes and writing the FD-302,” Strzok’s 302 read. The 302 summary further noted that Flynn “did not parse his words or hesitate in any of his answers,” but that he hedged once, and “that was documented in the 302.”
Did They Think Michael Flynn Was Lying or Not?
Second, even seven months after the fact, Strzok maintained in the 302 that he and the second agent who had interviewed Flynn “both had the impression at the time that Flynn was not lying or did not think he was lying.”
This fact conflicts with former FBI director James Comey’s recent testimony before the House judiciary and oversight committees. In discussing the agents’ view of the Flynn interview, Comey testified that “the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing,” but the former FBI director added that his “recollection was [Flynn] was—the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being—they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.”
Rep. Trey Gowdy pushed Comey on this point, asking him where he would have gotten this information if he was not present for the interview. Comey responded: “From someone at the FBI, who either spoke to—I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.”
The conflict between Comey’s testimony and Strzok’s 302 raises several concerns. First, which statement is accurate? Did agents at the time believe Flynn was lying or not? Here, it is important to note that, going into the interview, the agents knew the truth—they knew what Flynn had said in his telephone conversation with Russian ambassador Sergey Kislyak.
This point is clear from Strzok’s 302, which states that during their interview with Flynn, the agents planned to “refresh his recollection” by using “the exact words Flynn used.” So, the agents’ view on whether Flynn was lying would be based on their assessment of whether Flynn had merely forgotten aspects of his conversation with Kislyak or was intentionally misrepresenting the content of the conversation.
Second, the conflict between Comey’s testimony and Strzok’s 302 raises the question of whether, following the Flynn interview, Comey was told that the investigators believed Flynn was “obviously lying.” Did the original 302, which Comey indicated he had reviewed, contain that claim? If not, did someone tell Comey that the agents thought Flynn was “obviously lying?” And if so, who?
Strzok’s 302 filed with the court on Friday stated that following Flynn’s interview, the FBI agents briefed McCabe, who in turned briefed Comey. Yet McCabe testified in an executive session of the House Permanent Select Committee on Intelligence that “the two people who interviewed [Flynn] didn’t think he was lying, . . . ” Where, then, did Comey get the idea from that the agents believed Flynn was “obviously lying?”
The other possibility, of course, is that Comey’s memory is flawed—that McCabe and the original 302 both relayed the agents’ belief that Flynn was not lying. But if that is the case, it casts into doubt much of Comey’s testimony. Did Comey accurately recall the rationale for initiating the Crossfire Hurricane investigation? Did Comey accurately recall that the probe sought to investigate four individuals, as opposed to the Trump campaign?
None of this, though, is to say that Flynn did not lie to the FBI agents. I have no idea. He may have intentionally deceived the FBI agents, or he may not have remembered all of the details of his conversation with the Russian ambassador. But in pleading guilty, Flynn admitted to lying to the FBI. He may have had reasons for doing so, other than his guilt, but if so and Flynn wasn’t lying when interviewed by the FBI, he is lying now to the court.
Under these circumstances, I don’t know what justice is for Flynn. But I do know that the Department of Justice should not squeeze an accused into pleading guilty to a crime he didn’t commit or which the DOJ believes he did not commit. And there is the relevance of the original 302 summary of Flynn’s interview: It likely indicates that the agents did not think Flynn was lying.
So what changed? Or did nothing change, and the special counsel team didn’t care? Is it that they wanted a conviction under their belts and had the leverage to force a plea whether or not Flynn was guilty?
They Seem to Have Done That Before
Flynn’s case is also not the only one to indicate this approach serves as the special counsel’s modus operandi. First, we saw Mueller’s July 2018 indictment of 12 Russian intelligence service agents for interfering in the 2016 election. As former federal prosecutor Andrew McCarthy noted at the time, “This is nakedly politicized law enforcement. There is absolutely no chance any of the Russian officials charged will ever see the inside of an American courtroom. The indictment is a strictly political document by which the special counsel seeks to justify the existence of his superfluous investigation.”
Were there any doubt that this was Mueller’s strategy, the proof came when Concord Management and Consulting—one of the Russian businesses charged along with the Kremlin intelligence agents—retained a Washington-based law firm to defend the indictment. “Needless to say, Mueller’s team is not happy about this development since this is not a case they figured on having to prosecute to anything more than a successful press conference,” McCarthy quipped in a follow-up article for National Review Online.
Blindsided, the special counsel’s office took the unusual tack of claiming the case couldn’t proceed because Mueller’s team was not sure “the defendant has not been properly served — notwithstanding that the defendant has shown up in court and asked to be arraigned.”
Next we saw the special counsel’s office extracting a plea from former Trump attorney Michael Cohen for campaign finance violations, even though many experts agree that Cohen pleaded guilty to a non-crime. And then we have Jerome Corsi, a right-wing author connected to Trump confidant Roger Stone. Corsi revealed recently a plea agreement the special counsel pressured him to accept, but Corsi refused, going public instead. In rejecting the plea bargain Mueller offered, Corsi told The Hill that “pleading guilty would have meant that he would be agreeing to lie.”
Those defending Flynn believe that is exactly what the former Army lieutenant general agreed to do because of the power wielded by the special counsel’s office. We may never know the truth, but having access to the original 302 interview summary will provide some answers. Whether, and when, access will be granted now rests foremost in the hands of Judge Sullivan.