One day after former National Security Adviser Michael Flynn's legal team made the bombshell allegation that the FBI had pushed him not to bring a lawyer to his fateful Jan. 24, 2017 interview with agents at the White House, the federal judge overseeing Flynn's criminal case is demanding answers from Special Counsel Robert Mueller.
U.S. District Judge Emmet G. Sullivan ordered Mueller late Wednesday to turn over all of the government's documents and "memoranda" related to Flynn's questioning. The extraordinary demand puts Mueller under the microscope, and sets a 3:00 p.m. EST Friday deadline for the special counsel's office to produce the sensitive FBI documents.
Sullivan -- who overturned the 2008 conviction of former U.S. Sen. Ted Stevens after government misconduct came to light -- is weighing how to sentence Flynn, who pleaded guilty to one count of lying to federal authorities during the 2017 interview in the West Wing. Flynn faced mounting legal bills that forced him to sell his home amid the prosecution, and Mueller has already recommended he receive no prison time.
The judge's brief order states that Mueller can choose to file the materials under seal if necessary.
Sullivan also ordered the Flynn team to turn over the documents backing up its assertions. The judge could determine why the FBI apparently took a significantly more aggressive tack in handling the Flynn interview than it did during other similar matters, including the agency's sit-downs with Hillary Clinton and ex-Trump adviser George Papadopoulos.
Flynn is set to be sentenced next Tuesday -- but Sullivan's move might delay that date, or lead to other dramatic and unexpected changes in the case. Sullivan even technically has the authority to toss Flynn's guilty plea and the charge against him if he concludes that the FBI's charge lacks basis, or that the agency interfered with his constitutional right to counsel. But Sullivan has given no indication he intends to do so.
Federal authorities undertaking a national security probe are ordinarily under no obligation to inform interviewees of their right to an attorney unless they are in custody, as long as agents do not act coercively. Flynn's lawyers claimed in Tuesday's filing that FBI brass had threatened to escalate the matter to involve the Justice Department if Flynn sought the advice of the White House Counsel before talking with agents.
Sullivan, first appointed a judge by President Ronald Reagan in 1984 and then to the D.C. federal bench by Bill Clinton in 1994, could also assess why the two FBI agents who interviewed Flynn -- including fired anti-Trump agent Peter Strzok -- would have provided an Aug. 22, 2017 date on their so-called "302" report documenting what Flynn told them during their conversation at the White House.
The August date on the FBI 302 cited by the Flynn team is nearly seven months after the Flynn interview took place, and about a week after reports surfaced that Strzok had been summarily removed from Mueller's Russia probe because his persistent anti-Trump communications had surfaced.
So-called 302 reports are ostensibly contemporaneous accounts by agents of what is said during their interviews with witnesses and subjects, as well as other critical details like interviewees' demeanor and descriptions of where the interview took place. They are often critical pieces of evidence in false statements cases where, as in the Flynn case, the FBI typically does not audio- or video-record interviews.
In June, Freedom Caucus Chair Rep. Mark Meadows, R-N.C, charged that the FBI may have "edited and changed" key witness reports in the Hillary Clinton and Russia investigations. Meadows also raised the possibility that the FBI misled the Department of Justice watchdog in an attempt to hide the identities of FBI employees who were caught sending anti-Trump messages along with Strzok.
Flynn "clearly saw the FBI agents as allies," according to the 302 prepared by Strzok and another agent.
In a lengthy court filing Tuesday, Flynn's attorneys alleged that then-FBI Deputy Director Andrew McCabe pushed Flynn not to have an attorney present during the questioning that ultimately led to his guilty plea on a single charge of lying to federal authorities.
The document outlines, with striking new details, the rapid sequence of events that led to Flynn's sudden fall from the Trump administration.
While Flynn is among several Trump associates to have been charged with making false statements as part of the Russia probe, no one interviewed during the FBI’s Clinton email investigation was hit with false statement charges – though investigators believed some witnesses, including Clinton herself, were untruthful.
According to Flynn's legal team, FBI agents in his case deliberately did not instruct Flynn that any false statements he made could constitute a crime, and decided not to "confront" him directly about anything he said that contradicted their knowledge of his wiretapped communications with former Russian ambassador Sergey Kislyak.
Flynn later pleaded guilty to lying about whether he had talked to Kislyak in December 2016 about whether Kislyak would help limit the Russian government's response to President Obama's recently imposed sanctions against Russia for election meddling. Flynn also allegedly said he could not remember Kislyak's response, which was that Russian would not immediately retaliate in response to Obama's sanctions in the final weeks of his administration.
If “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, ... to try to refresh his recollection," FBI agents wrote in the 302 report cited by the filing, which Sullivan has ordered both the Flynn team and the FBI to produce by Friday. "If Flynn still would not confirm what he said, ... they would not confront him or talk him through it.”
According to the 302 as described in the filing, Flynn was “relaxed and jocular” as he gave the agents a "little tour" of his West Wing office.
McCabe -- who was fired earlier this year for making unauthorized media leaks and violating FBI policy -- wrote in a memorandum that shortly after noon on Jan. 24, 2017, he called Flynn on his secure line at the White House, and the two briefly discussed an unrelated FBI training session at the White House. Quickly, the conversation turned to a potential interview, according to an account provided by McCabe cited in the Tuesday filing.
McCabe reportedly testified later that the agents, after speaking with Flynn, “didn’t think he was lying" at the time. Any FBI memoranda confirming that -- if not turned over to Flynn's team during his prosecution -- could be seen by Sullivan as improperly withheld exculpatory evidence.
In his order, Sullivan requested Mueller turn over not only the Flynn 302, but also a memo written by McCabe and any similar documents in the FBI's possession. Sullivan similarly demanded that Flynn's lawyers produce the McCabe memorandum and 302 they used to make their assertions.
(Separately, Sullivan ruled last month that Clinton must answer more questions under oath about her use of a private email server to store classified documents. But the hard-charging judge has not been easy on the Trump administration: In August, he threatened to hold then-Attorney General Jeff Sessions in contempt of court when he learned that authorities were in the process of deporting a woman and her child while a court heard her legal appeal, calling immigration officials' actions "pretty outrageous.")
McCabe purportedly said in the memo that he told Flynn he “felt that we needed to have two of our agents sit down” to discuss his contacts with Russian officials.
“I explained that I thought the quickest way to get this done was to have a conversation between [Flynn] and the agents only," McCabe wrote, according to the Flynn filing. "I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants."
Explaining why Flynn was not warned about the possible consequences of making false statements, one of the agents wrote in the 302 cited by Flynn's lawyers that FBI brass had "decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport."
The tactics were apparently in sharp contrast to the FBI's approach to interviewing former Trump aide George Papadopoulos, who also pleaded guilty to making false statements and was recently released from prison. In a court filing last year, Special Counsel Mueller's team took pains to note that FBI agents who interviewed Papadopoulos on Jan. 27, 2017 -- just days after the Flynn interview -- had advised Papadopoulos that "lying to them 'is a federal offense'" and that he could get "in trouble" if he did not tell the truth.
The revelations in the court filing, if accurate, would also sharply differ from the FBI's handling of its interview with then-presidential candidate Clinton in 2016, during the height of the presidential campaign. Clinton brought a total of nine lawyers to her interview -- a number that fired FBI Director James Comey said was "unusual ... but not unprecedented" in House testimony in September.
A scathing report released earlier this year by the Department of Justice's inspector general (IG) found that the FBI had taken actions "inconsistent with typical investigative strategy" by allowing former Clinton chief of staff Cheryl Mills and ex-campaign staffer Heather Samuelson to sit in on the Clinton interview -- even though "they had also both served as lawyers for Clinton after they left the State Department."
In fact, the IG wrote, FBI officials fretted about how many FBI representatives should be at the interview, for fear of prejudicing Clinton against the agency if, as expected, she went on to become president.
“[S]he might be our next president," FBI attorney Lisa Page wrote, in urging that the number of people at the interview be limited to four or six. "The last thing you need us going in there loaded for bear. You think she’s going to remember or care that it was more doj than fbi?”
The IG report further noted: “Witnesses told us, and contemporaneous emails show, that the FBI and Department officials who attended Clinton’s interview found that her claim that she did not understand the significance of the ‘(C)’ marking strained credulity. (FBI) Agent 1 stated, ‘I filed that in the bucket of hard to impossible to believe.’"
Strzok, who was one of the two agents who interviewed Flynn and who was later also fired for violating FBI policies, had compromised the FBI's appearance of impartiality by sending a slew of anti-Trump texts on his government-issued phone, the IG concluded.
“In particular, we were concerned about text messages exchanged by FBI Deputy Assistant Director Peter Strzok and Lisa Page, Special Counsel to the Deputy Director, that potentially indicated or created the appearance that investigative decisions were impacted by bias or improper considerations,” the IG report said.
In one of those texts, Strzok wrote to Page in 2016 that Trump would not become president because "we'll stop" it from happening.
"Even when circumstances later came to light that prompted extensive public debate about the investigation of General Flynn, including revelations that certain FBI officials involved in the January 24 interview of General Flynn were themselves being investigated for misconduct, General Flynn did not back away from accepting responsibility for his actions," Flynn's lawyers wrote in the filing Tuesday.
Flynn was fired as national security adviser in February 2017 for misleading Vice President Mike Pence and other White House officials about his contacts with Russian officials. In arguing that Flynn should receive no more than a year of probation and 200 hours of community service for making false statements to federal investigators, his lawyers Tuesday emphasized his service in the U.S. Army and lack of criminal record.
In a sentencing memo earlier this month, Mueller recommended a lenient sentence -- with the possibility of no prison time -- for Flynn, stating he has offered "substantial" help to investigators about "several ongoing investigations."
Meanwhile, Comey revealed in closed-door testimony with House Republicans on Friday that he deliberately concealed an explosive memorandum about his one-on-one Oval Office meeting with President Trump in February 2017 from top Department of Justice officials.
The former FBI head also acknowledged that when the agency initiated its counterintelligence probe into possible collusion between Trump campaign officials and the Russian government in July 2016, investigators "didn't know whether we had anything" and that "in fact, when I was fired as director [in May 2017], I still didn't know whether there was anything to it."
His remarks square with testimony this summer from former FBI lawyer Page, whose anti-Trump texts became a focus of House GOP oversight efforts. Page told Congress in a closed-door deposition that "even as far as May 2017" -- more than nine months after the counterintelligence probe commenced -- "we still couldn't answer the question" as to whether Trump staff had improperly colluded with Russia.