An internal Justice Department draft memo from late January 2017 indicates that the FBI concluded retired Lt. Gen. Michael Flynn was not acting as an agent of Russia and noted that agents believed he did not think he was lying to them during an interview about his calls with Russia’s ambassador.
The heavily redacted document (dated Jan. 30, 2017) was released to the Flynn defense team earlier this week and was made visible to the public on Friday in a filing with the U.S. District Court for the District of Columbia. It was included along with a new batch of handwritten notes from key DOJ and FBI officials from the Trump-Russia investigation following the interview of the former Trump national security adviser by now-fired FBI agent Peter Strzok and FBI agent Joseph Pientka on Jan. 24, 2017.
“After additional articles came out and Secretary Spicer gave his press conference on January 23, the FBI decided to interview General Flynn on January 24th. During this interview the FBI asked General Flynn about his contacts with the Ambassador. General Flynn recalled a conversation about Israel after prompting by the FBI, but denied having conversations about sanctions,” the DOJ document states. “FBI advised that based on this interview, they did not believe General Flynn was acting as an age of Russia. FBI also advised that although they recognized the statements were inconsistent with the FISA collection, they believed that Flynn believed what he was telling them. FBI did not confront Flynn with the communications during the interview.”
A summary of a Jan. 25, 2017, meeting during which the FBI briefed the DOJ’s National Security Division and other key FBI and DOJ leaders stated: “FBI advised that the purpose of the interview was to determine if General Flynn was acting as an agent of Russia. FBI advised that General Flynn was very open and forthcoming.” According to the memo, when the FBI asked Flynn about whether he discussed sanctions with Russia’s ambassador during the presidential transition period, “Flynn denied having the conversation and stated he would not have that type of conversation. FBI prompted Flynn with language used during the call, and he still denies having the conversation.”
The DOJ memo said the FBI “believed Flynn believed what he was saying was true” and that the bureau “recognized the discrepancy between the statements and the actual calls, but determined that Flynn was not acting as agent of Russia.” The memo also notes that the FBI “advised that the decision was made by FBI leadership not to confront Flynn with the actual tech cuts” of the recorded intercepts of his call with Russian Ambassador Sergey Kislyak.
Flynn, 61, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy. After changing legal teams, Flynn began to claim this year that he was innocent and had been set up by the FBI.
Flynn’s lawyers told the court that they believed the new information was further exculpatory evidence demonstrating Flynn’s innocence.
“On July 7, 2020, the Government produced to General Flynn 14-pages of additional evidence, demonstrating (i) his innocence; (ii) the absence of any crime; (iii) government misconduct in the investigation of General Flynn; and (iv) prosecutorial misconduct in the suppression of evidence favorable to the defense,” Flynn’s defense team said, arguing that the information was known to at least 10 high-level officials at the FBI and the DOJ and that the evidence “negates multiple essential elements required for the prosecution of a false statement offense.”
Flynn’s ties to Russia came under scrutiny as part of the FBI’s counterintelligence investigation into links between the Trump campaign and the Kremlin.
The DOJ told the district court in May “that continued prosecution of this case would not serve the interests of justice” as it sought to drop the false statements charges against Flynn, but instead, Judge Emmet Sullivan, a President Bill Clinton appointee who has been handling the Flynn case since December 2017, appointed retired New York federal Judge John Gleeson to serve as an amicus curiae to present arguments in opposition to the DOJ’s motion.
The U.S. Court of Appeals for the D.C. Circuit issued an order on Friday that gives the former Trump national security adviser and the DOJ 10 days to respond to Judge Emmet Sullivan’s Thursday petition for a rehearing by the full appeals court.
The filing further stated that a three-judge panel’s June 24 decision ordering Sullivan to grant the DOJ’s motion to drop the criminal charges against Flynn has been stayed “pending disposition of the petition for rehearing en banc.”
Newly-released notes from then-Deputy Assistant Attorney General Tashina Gauhar detailed a Jan. 25, 2017 meeting of 10 DOJ and FBI officials including Strzok, FBI General Counsel James Baker, FBI counterintelligence leader Bill Priestap, and DOJ National Security Division officials Mary McCord and George Toscas where the FBI discussed its interview with Flynn the day before.
Gauhar’s notes state that the FBI reported they had an investigation open on Flynn from the prior summer but “as summer progressed — had not seen things to point to initial issue.” In November, the FBI was “looking to close F as agent [of Russia],” but “then recovered calls” between Flynn and Kislyak. For Flynn’s calls in November and December, the FBI said there were “requests to foreign partners” and that the “info came back — legitimate.” The bureau also mentioned “media leaks” related to the “intercepts” of Flynn’s calls, which the FBI claimed brought the “investigation in the open” and “changed the dynamic” of the investigation. The notes show the “decision to interview” Flynn was made, and so the FBI “asked to interview — with couple of agents to talk about news.”
On the call from FBI Deputy Director Andrew McCabe setting up the Jan. 24, 2017 interview, Gauhar’s notes state that Flynn told McCabe that “you have the calls” between himself and Kislyak. During the interview with Strzok and Pientka, Flynn “went through numerous calls.”
The FBI’s “game plan going in” to the interview was to “determine if clandestine or agency relationships” existed, according to Gauhar’s notes, and to “ask and see what he would say about them.” The FBI “decided NOT to show the cuts” of the calls. The notes say that the agents provided Flynn “no false statement or intro that he was under investigation.” Flynn told them he’d had discussions with roughly 30 countries, and the Gauhar’s notes state: “FBI → says checked + is consistent w/ tech cuts.”
Gauhar’s notes state that the FBI believed Flynn’s comments about his discussions with Kislyak on Israel and anti-Russia sanctions were “false and inaccurate,” but the agents also “believe[d] that F. believe[d] that what he said was true.” Flynn “knew [the FBI] had the cuts” of his calls with Kislyak, and the agents said they thought Flynn was “largely telling truth as he believed it.”
Newly released notes from Strzok which were taken at the same Jan. 25, 2017 meeting show Toscas wondered who thought it was “appropriate” to tell the White House about Flynn’s alleged “false statements” and also said there could be “no reasonable [prosecution] of the Logan Act.”
Former FBI Director James Comey admitted in 2018 that he took advantage of the chaos in the early days of Trump’s administration when he sent Strzok and Pientka to talk to Flynn.
“Despite clear evidence of no crime … [Deputy Attorney General] Sally Yates and Mary McCord made two trips to the White House to get General Flynn fired, and Andrew McCabe met with Vice President Pence to convince him that General Flynn had not been honest with him,” Flynn’s defense team said Friday. “Further, after that meeting, FBI Agents Strzok and Lisa Page further altered the FBI 302 report of the interview until it met with McCabe’s approval and would facilitate a prosecution by the Special Counsel.”
Newly released notes dated March 30, 2017 that are almost entirely redacted from Dana Boente, a former top FBI and DOJ official, state that the government “[does] not view [him] as [a] source of collusion” with Russia.
Notes from Strzok released in late June show that former Vice President Joe Biden raised the Logan Act during an early January 2017 Oval Office meeting about Flynn. Declassified also indicate that Strzok abruptly stopped the FBI from closing its investigation into Flynn in early January 2017 at the insistence of the FBI’s “seventh floor” after the bureau had uncovered “no derogatory information” on Flynn. Emails showed Strzok, along with FBI lawyer Lisa Page and several others, sought to continue investigating Flynn, even considering the Logan Act.
Notes from Priestap show him asking, “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
