Internal FBI documents unsealed Thursday indicate that Peter Strzok -- the now-disgraced anti-Trump former head of FBI counterintelligence -- ordered the investigation of former national security adviser Michael Flynn to remain open even after it was slated to be closed due to a lack of so-called "derogatory" information.
The materials surfaced just a day after explosive FBI communications revealed that top bureau officials discussed their motivations for interviewing Flynn in the White House on January 24, 2017 -- and openly questioned if their "goal" was "to get him to lie, so we can prosecute him or get him fired."
Those handwritten notes -- written by the FBI's former head of counterintelligence Bill Priestap, Fox News is told -- suggested that agents planned in the alternative to get Flynn "to admit to breaking the Logan Act" when he spoke to then-Russian Ambassador Sergey Kislyak during the presidential transition period. The Logan Act has never been used in a criminal prosecution and has a questionable constitutional status; it was enacted in 1799 in an era before telephones, and was intended to prevent individuals from falsely claiming to represent the United States government abroad.
In late 2017, Flynn pleaded guilty to making false statements to Strzok and another agent during that White House interview. But he has yet to be sentenced, as his team has sought to withdraw his guilty plea, citing "egregious" FBI misconduct. (The other interviewing agent, most likely Supervisory Special Agent Joe Pientka, has been scrubbed from the FBI website after Fox News asked the bureau about him, and he has largely evaded scrutiny -- despite his key role in both the Flynn probe and Carter Page investigations.)
Thursday's document release shows that on January 4, 2017, weeks before the fateful January 24, 2017 White House interview, the FBI’s Washington Field Office issued a “Closing Communication" indicating that the bureau was terminating "CROSSFIRE RAZOR" -- the newly disclosed codename for the investigation of Flynn.
According to the January 4 memo, the goal of CROSSFIRE RAZOR was to determine whether Flynn “was directed and controlled by” or “coordinated activities with the Russian Federation in a manner which is a threat to the national security” of the United States or a violation of federal foreign agent laws.
In pursuit of information on Flynn, the "Crossfire Hurricane" team investigating the Trump team “conducted a check of logical databases for any derogatory information” on Flynn. The January 4 FBI report states that “no derogatory information was identified in FBI holdings.”
The memo also discusses additional FBI efforts to check information on Flynn, apparently through other US agencies. Just like the FBI, they also found “no derogatory information” on Flynn.
The FBI’s investigation of Flynn also included reaching out to a confidential human source (CHS) and an analysis of Flynn’s travel. The CHS informed the FBI of Flynn speaking at an event, which remained redacted. The CHS further stated that Flynn had dinner and drinks with those in attendance and took a cab and a train with an unidentified individual whose “father may be a Russian Oligarch.”
That may be a reference to Svetlana Lokhova, a Russian academic and author who has disputed any ties to Russian intelligence and has defended her brief interactions with Flynn, including in interviews with Fox News. It appears the FBI found no concern for any of Flynn’s ties to Lokhova.
Based on the lack of derogatory information, the Washington Field Office concluded that Flynn “was no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case.”
Furthermore, the author of the memo noted that Flynn was not specifically “named as an agent of a foreign power by the original CROSSFIRE HURRICANE predicated reporting” and discussed the absence of derogatory information or leads. He also wrote that at the “direction of FBI management, [Flynn] was not interviewed as part of the case closing procedure.”
The January 4 memo concluded with this paragraph: “The FBI is closing this investigation. If new information is identified or reported to the FBI regarding the activities of CROSSFIRE RAZOR, the FBI will consider reopening the investigation if warranted.”
Yet, on that same day -- Jan. 4, 2017 -- Strzok instructed the FBI case manager handling CROSSFIRE RAZOR to keep the investigation open. “Hey don’t close RAZOR," Strzok texted an unidentified individual.
Strzok informed the FBI case manager that the FBI’s 7th floor was involved, referring to FBI leadership -- and that they still “need to decide what to do with him [with respect to] the [REDACTED].”
It's currently unknown why Strzok directed the FBI case manager to keep the Flynn investigation open. However, the timing of emails between Strzok and ex-FBI lawyer Lisa Page seem to suggest that they used the Logan Act to keep CROSSFIRE RAZOR alive; Strzok forwarded a 14-page research paper on the Logan Act the same day.
"Hey don’t close RAZOR."
Constitutional law professor Jonathan Turley called the revelations about the FBI's conduct "chilling," especially given that the Logan Act has never been enforced and seemingly has little modern-day relevance even in the abstract.
"I have been a criminal defense attorney for decades," Turley wrote on Twitter. "I have seen abusive tactics. However this is one of the most thuggish records I have seen. Most concerning is that they were trying to create a crime, not investigating a crime. The use of Logan only highlights that bias."
He added: "There was a time when networks like MSNBC and CNN argued for civil liberties and against such abuses. Now, because such principles would benefit Trump, there is just a shrug with a common mantra 'everyone does it.' Yes, abuses occur but that is not license for their commission."
Conservative commentators seeking to understand the FBI's actions have noted that former President Obama personally had warned the Trump administration against hiring Flynn, and made clear he was "not a fan," according to multiple officials.
Obama fired Flynn as head of the Defense Intelligence Agency in 2014.
During the White House interview, Flynn told the agents "not really" when asked if he had sought to convince Kislyak not to escalate a brewing fight with the U.S. over sanctions imposed by the Obama administration, according to a FD-302 witness report prepared by the FBI. Flynn also reportedly demurred when asked if he had asked Russia to veto a U.N. Security Council resolution that condemned Israel’s settlements in the West Bank. (The Obama administration abstained in that vote.)
Flynn issued other apparently equivocal responses to FBI agents' questions, and at various points suggested that such conversations might have happened or that he could not recall them if they did, according to the 302.
But questions remained as to the strength of the FBI's case. Then-FBI Director James Comey admitted in 2018 that the Flynn interview at the White House didn't follow protocol, and came at his direction. He said it was not "something I probably wouldn't have done or maybe gotten away with in a more... organized administration."
And, then-FBI Deputy Director Andrew McCabe later said the interview was "very odd" because "it seemed like [Flynn] was telling the truth" to the two agents who interviewed him. Flynn, the interviewing agents told McCabe, "had a very good recollection of events, which he related chronologically and lucidly," did not appear to be "nervous or sweating," and did not look "side to side" -- all of which would have been "behavioral signs of deception."
Further, the FBI 302 indicated that Flynn apparently was aware his communications had been monitored, and at several points he thanks the FBI agents for reminding him of some of his conversations with Russian officials. A Washington Post article published one day before Flynn's White House interview with the agents, citing FBI sources, publicly revealed that the FBI had wiretapped Flynn's calls with Kislyak and cleared him of any criminal conduct. It was unclear who leaked that information to the Post -- or why the FBI would need to question Flynn about his contacts given that the bureau had already recorded them.
Other questions remained as to why the documents were only surfacing this week. The Justice Department turned over the new exculpatory documents on Wednesday and Thursday, even though a February 2018 standing order in the case from United States District Court for the District of Columbia Emmet Sullivan required the government to turn over any exculpatory materials in its possession that pertained to Flynn.
Flynn has sought to withdraw his guilty plea and has been seeking exoneration, saying the FBI engaged in "egregious misconduct." Flynn, who has said more recently that he did not lie to the FBI, pleaded guilty in late 2017 as mounting legal fees pushed him to sell his home. Prosecutors have suggested Flynn's guilty plea allowed him to escape liability for a possible charge under the Foreign Agents Registration Act (FARA), another little-known and once-rarely used law, for his alleged work in Turkey.
Fox News' David Spunt and Wilson Miller contributed to this report.