Top FBI officials discussed the possibility of prosecuting retired Lt. Gen. Michael Flynn for lying to the FBI about his contacts with the Russians as agents planned how to conduct their interview of the Trump national security adviser, newly unsealed notes show.
The records, unsealed through a consent agreement by Flynn’s lawyers and the Justice Department, show an email from then-FBI special agent Peter Strzok to then-FBI General Counsel James Baker with advice for then-FBI Deputy Director Andrew McCabe for his call with Flynn on Jan. 24, 2017 — the same day Flynn was interviewed by Strzok and another FBI agent believed to be Joseph Pientka. The documents also include an email from the day before that then-FBI lawyer Lisa Page sent to Strzok and a member of the FBI’s Office of General Counsel, whose name is redacted, about the federal statute against false statements. Additionally, a page of handwritten notes from an FBI official, whose identity has not been disclosed to the public, was released, dated the day of Flynn’s FBI interview.
The author of the notes had previously been speculated as being Baker, but on Wednesday, it was reported that the notes belonged to the FBI’s head of counterintelligence Bill Priestap, who led the Crossfire Hurricane investigation. The notes show the FBI official wondering whether the goal of the Flynn interview was to get Flynn to tell the truth or to catch him in a lie so that he could be charged with a crime or removed from his position.
Flynn, 61, is fighting to dismiss the government’s case against him. He pleaded guilty in December 2017 to lying to investigators about his conversations with Russian diplomat Sergey Kislyak about sanctions on Russia and a United Nations resolution on Israel. The FBI had intercepted Flynn’s discussions with the Russian and then grilled him on the contents of the conversation. In January, he told the court that he was “innocent of this crime.” He filed to withdraw his guilty plea after the Justice Department asked the judge to sentence Flynn to up to six months in prison — though afterward, the department said probation would also be appropriate. Powell is pressing for the dismissal of his case by arguing that the FBI unfairly treated Flynn.
After the public disclosure of the documents on Wednesday, Flynn tweeted out a short video showing an American flag flapping in the wind.
— General Flynn (@GenFlynn) April 29, 2020
Under a column labeled “DD,” likely short for “Deputy Director” in a reference to McCabe, the FBI official wrote “we have a case with Flynn and Russians” and “our goal is to determine if Mike Flynn is going to tell the truth about his relationship with Russians.”
Beneath another column labeled “Afterwards” the FBI official lists a number of thoughts about the impending Flynn interview that day.
“I agreed yesterday that we shouldn’t show Flynn [REDACTED] if he didn’t admit” but “I thought about it last night and I believe we should rethink this,” the FBI official wrote. “What is our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?”
The FBI official stated, “We regularly show subjects evidence with the goal of getting them to admit their wrongdoing,” and noted, “I don’t see how getting someone to admit their wrongdoing is going easy on him.”
The FBI official also suggested, “If we get him to admit to breaking the Logan Act, give facts to DOJ and have them decide … or, if initially lies, then we present him [REDACTED] and he admits it, document for DOJ, and let them decide how to address it.”
“If we’re seen as playing games, WH will be furious,” the FBI official said. The list ended with a bullet point that said: “Protect our institution by not playing games.”
Sidney Powell, a former federal prosecutor, took over Flynn’s representation last year in the spinoff case from special counsel Robert Mueller’s investigation and has said new information would exonerate Flynn.
“The government produced to Mr. Flynn stunning Brady evidence that proves Mr. Flynn’s allegations of having been deliberately set up and framed by corrupt agents at the top of the FBI,” said Powell’s Friday filing on the public docket. “The government has deliberately suppressed this evidence from the inception of this prosecution — knowing there was no crime by Mr. Flynn.”
The newly-public email from Page to the FBI general counsel’s office and to Strzok had the subject line “Question regarding 1001” — a reference to 18 U.S. Code § 1001, the U.S. federal statute against making false statements to federal law enforcement officers to which Flynn later pleaded guilty.
“I have a question for you. Could the admonition re: 1001 be given at the beginning at [sic] the interview? Or does it have to come following a statement which agents believe to be false? Does the policy speak to that?” Page asked. “I feel bad that I don’t know this but I don’t remember ever having to do this! Plus I’ve only charged it once in the context of lying to a federal probation officer.”
Page noted that if it could be given at the beginning of their discussion with Flynn, “then it would be an easy way to just casually slip that in” as “of course as you know sir, federal law makes it a crime to…”
Former FBI Director James Comey admitted that he took advantage of the chaos in the early days of President Trump’s administration when he sent agent Strzok and another FBI agent to talk to Flynn. Flynn agreed to cooperate with Mueller’s Russia investigation, admitting and then reaffirming his guilt in 2017 and 2018. The defense team that negotiated the plea deal was fired and, since taking over last summer, Powell has argued that “there never would’ve been a plea to begin with” if Flynn knew how much information the Justice Department was hiding from him.
Strzok’s email to Baker with advice to McCabe listed questions that Flynn might ask McCabe during the call setting up the FBI interview at the White House, including: “Am I in trouble? Am I the subject of an investigation? Is it a criminal investigation? Is it an espionage investigation? Do I need an attorney? Do I need to tell [then-White House chief of staff Reince] Priebus? The President? Will you tell Priebus? The President? Will you tell the WH what I tell you? What happens to the information / who will you tell what I tell you? Will you need to interview other people? Will our interview be released publicly? Will the substance of our interview be released? How long will this take (depends on his cooperation — I’d plan 45 minutes)?”
Strzok also told McCabe to be prepared for if Flynn said, “I can explain all this right now, I did this, this.” Strzok asked: “Do you shut him down? Hear him out? Conduct the interview if he starts talking? Do you want another agent/witness standing by in case he starts doing this?”
Andrew McCarthy, a conservative commentator and former federal prosecutor, wrote earlier this week that “there was no good-faith basis for an investigation of General Flynn” because “under federal law, a false statement made to investigators is not actionable unless it is material.”
Judge Emmet Sullivan, the federal judge presiding over retired Lt. Gen. Michael Flynn’s case, issued an order on Tuesday telling the former national security adviser’s previous attorneys to “re-execute a search of every document and communication pertaining to the firm’s representation of Mr. Flynn” after it was revealed they failed to turn thousands of documents over to Flynn’s new defense team.
Robert Kelner and Stephen Anthony, Flynn’s former lawyers at the powerhouse firm Covington & Burling, admitted there were 6,800 records containing documents and email exchanges they unearthed and turned over to Flynn’s current defense team, which has been led by former federal prosecutor Sidney Powell since July 2019. They blamed “an unintentional miscommunication involving the firm’s information technology personnel” for the holdup.
U.S. Attorney Timothy Shea enclosed a letter directly to Powell on Wednesday providing Flynn’s legal team with a second update on the work being carried out by U.S. Attorney for the Eastern District of Missouri Jeffrey Jensen, who was selected by Attorney General William Barr in January 2020 to conduct a review of the Flynn case.
“Beginning in January 2020, at the direction of Attorney General William P. Barr, the United States Attorney for the Eastern District of Missouri (“USA EDMO”) has been conducting a review of the Michael T. Flynn investigation,” Shea said. “The enclosed documents were obtained and analyzed by USA EDMO in March and April 2020, and are provided to you as a result of this ongoing review. Additional documents may be forthcoming.”
Flynn’s defense lawyers also said Friday they “found further evidence of misconduct” by former Mueller prosecutor Brandon Van Grack, claiming that he made “baseless threats” to indict Flynn. Flynn’s lawyers also claimed Van Grack put together a “side deal” not to prosecute Flynn’s son “as a material term of the plea agreement” but required that the deal be kept secret “expressly to avoid the requirement” of Giglio v. United States, a Supreme Court case about the responsibilities of prosecutors when putting together plea deals.
“Since August 2016, at the latest, partisan FBI and DOJ leaders conspired to destroy Mr. Flynn,” Powell said, adding that “the government’s misconduct in this case is beyond shocking and reprehensible. It mandates dismissal.”
The Justice Department called Flynn’s claims of innocence “an extraordinary reversal.” The agency insists it never concealed any exculpatory evidence from Flynn.
Powell’s filing Friday evening included two exhibits related to March 2018 communications from Flynn’s former legal team at Covington. The first was a redacted email from Kelner to Anthony, stating, “We have a lawyers’ unofficial understanding that they are unlikely to charge [Flynn’s son] in light of the Cooperation Agreement.” The second blacked out email from Anthony to Kelner said: “The only exception is the reference to Michael Jr. The government took pains to give a promise to [Flynn] regarding Michael Jr. so as to limit how much of a ‘benefit’ it would have to disclose as part of its Giglio disclosures to any defendant against who MTF may one day testify.”
In a filing earlier this year, Powell pointed to a section of DOJ Inspector General Michael Horowitz’s report, which showed that the intelligence briefing the FBI gave to then-candidate Trump’s team in August 2016 during the presidential campaign was a “pretext” to gather evidence to help in the counterintelligence investigation into Trump’s campaign.
“I will only say this: I think that Gen. Flynn is a wonderful man. He had a wonderful career, and it was a disgrace what happened to Gen. Flynn,” Trump said on Monday. “Let’s see what happens now, but what happened to Gen. Flynn should never happen again in our country. What happened to other people should never happen again in our country. What happened to your president of the United States should never again be allowed to happen.”
