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Canceled
Join Date: Jun 2003
Location: vt
Posts: 13,069
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Flynn redux Part B
The next email, sent early in the morning of Jan. 24, is from Strzok to a redacted email address; then-FBI General Counsel James Baker is copied on the email, along with another redacted address. Strzok’s note contains a list of questions for McCabe to consider how he might want to answer in advance of a phone call with Flynn—that is, questions Flynn might ask him about the ongoing FBI investigation. From the Mueller report and other internal FBI documents released by Powell during the Flynn litigation, we know that McCabe spoke with Flynn by phone around noon on Jan. 24 and informed him that the FBI wanted to interview him about his contacts with Russian Ambassador Sergei Kislyak; Flynn agreed, and Strzok and another agent interviewed him at around 2:15pm that same day. With that in mind, the Jan. 24 email appears to show the bureau preparing McCabe for how to discuss his request for an interview with Flynn.
The last document in this tranche is a page of handwritten notes, with some redactions, dated Jan. 24; it is not clear whether the notes were written before the Flynn interview was conducted or after it. The writer seems to be sketching out thoughts—it is not clear whose—on how the bureau should navigate the politically tricky investigation, particularly regarding whether or not the FBI should allow Flynn to lie or confront him with evidence of his falsehood. The notes appear to show the writer moving toward the argument that the bureau should take the latter path. “What’s urgent?” the writer asks. “Truth/Admission or to get him to lie, so we can prosecute him or get him fired?” The notes go on:
We regularly show subjects evidence with the goal of getting them to admit their wrongdoing
I don’t see how getting someone to admit their wrongdoing is going easy on him
If we get him to admit to breaking the Logan Act, give this to DOJ and have them decide
Or, if he 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 [White House] will be furious
Protect our institution by not playing games
Flynn’s new lawyers cite these notes, which were presumably written by then-FBI counterintelligence chief Bill Priestap, as supposed smoking gun evidence that the FBI was seeking to entrap Flynn in a lie. The trouble with that argument is that absolutely nothing forced Flynn not to tell the truth in that interview. And while FBI officials appear to have discussed the strategic purpose of the interview, there’s nothing whatsoever wrong with that. To be sure, a possible criminal prosecution based on the Logan Act case was weak leverage, given that the statute has virtually no history of enforcement, but agents hold relatively weak leverage over witnesses all the time. And yes, it’s wrong for the bureau to set up an interview in the absence of a viable case in order to induce a witness to lie for purposes of prosecution, but there’s no evidence that is what happened—merely evidence that the possibility was on a list of possible strategic goals for the interview. And yes, the bureau will sometimes confront a witness with a lie and specifically warn the person about lying being a felony, but that is not a legal requirement.
In fact, the Flynn interview gave Flynn every opportunity to tell the truth. As the FBI’s partially-redacted memo documenting Flynn’s interview reflects, the questions were careful. They were specific. The agents, as Strzok later recalled in a formal FBI interview of his own, planned to try to jog Flynn’s memory if he said he could not remember a detail by using the exact words they knew he had used in his conversation with Kislyak. And Flynn, as he admitted in open court—twice—did not tell the truth. That is not entrapment or a set-up, and it is very far indeed from outrageous government conduct. It’s conducting an interview—and a witness at the highest levels of government lying in it.
The second batch of documents produced by Jensen and released on April 30 contains a draft FBI memo closing Flynn’s case (which was never finalized), along with an internal FBI email chain and what appear to be internal FBI text messages or instant messages. It appears that the FBI drafted a memo to close the case on Flynn, a memo which is dated Jan. 4, 2017 but was likely written earlier. But FBI leadership then decided to keep the case open.
The memo describes how the FBI opened a case on “CROSSFIRE RAZOR” (clearly, from the description, Flynn) “based on an articulable factual basis that CROSSFIRE RAZOR (CR) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.” After describing investigative steps taken by the bureau, the memo states that the “CH team” (a reference to the bureau’s name for the Russia investigation, “Crossfire Hurricane”) “determined that CROSSFIRE RAZOR was no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case,” and that the bureau is therefore closing the case. Notably, the memo flags that “FBI management” requested that Flynn not be interviewed.
A chain of messages included in the documents shows communications between Strzok and a redacted individual regarding the memo. On Jan. 4, Strzok messaged the other person to tell him or her not to close the case, apparently at the direction of FBI leadership. It’s not clear from the documents what caused the change in course, but another message between two redacted individuals notes a comment by Strzok suggesting that FBI leadership decided to interview Flynn after all.
The documents themselves don’t reveal the reason for the shift. But reporting by the New York Times provides a hint. According to the Times, the Jan. 4 decision not to close the case may have resulted from the FBI’s discovery that Flynn had spoken with Kislyak in the previous days and advised Russia against retaliating against U.S. sanctions levied by the Obama administration in response to Russian election interference—the matter about which FBI agents eventually interviewed Flynn, and about which he lied repeatedly to them. The issue was of concern to the bureau in part because it appeared that Flynn had lied to Vice President Mike Pence about those contacts as well, and the FBI became worried that Flynn’s falsehoods “posed a blackmail risk,” the Times writes. In other words, there’s a very good explanation for why the FBI made a U-turn on closing Flynn’s case: when the memo was drafted, the writer wasn’t yet aware of the most concerning conduct by Flynn.
In his recent book, “The Threat,” McCabe describes the chain of events that seems to have led to the discovery of Flynn’s conversation with Kislyak—and why the bureau wasn’t aware of that information before:
Near the end of December, the administration and National Security Council prepared sanctions on Russia as punishment for their involvement in the election … The sanctions were announced on December 29.
The next day, Russia’s president, Vladimir Putin, issued an unusual and uncharacteristic statement, saying that he would take no action against the United States in retaliation for those sanctions. The PDB [Presidential Daily Brief] staff decided to write an intelligence assessment as to why Putin made the choice he did. They issued a request to the intelligence community: Anyone who had information on the topic was invited to offer it for consideration. In response to that request, the FBI queried our own holdings. We came across information indicating that General Mike Flynn, the president-elect’s nominee for the post of national security advisor, had held several conversations with the Russian ambassador to the U.S., Sergey Kislyak, in which the sanctions were discussed. The information was something we had from December 29. I had not been aware of it. My impression was that higher-level officials within the FBI’s counterintelligence division had not been aware of it. The PDB request brought it to our attention.
...We felt we needed time to do more work to understand the context of what had been found—we don’t just run out and charge someone based on a single piece of intelligence. We use intelligence as the basis for investigation.
Quite apart from this history, there is nothing wrong with the bureau contemplating the closure of a case without interviewing the subject, then deciding not to close it and that an interview is appropriate, proceeding with the interview, and prosecuting the individual for lying in that interview. The emails do not make out even a colorable case of misconduct by anyone.
The remainder of the tranche contains an email chain between Strzok, Page, and other FBI officials including Priestap. The emails are dated Jan. 22, two days before the Flynn interview, and show that officials were still debating how to handle the Flynn case at this point and had not yet settled on an FBI interview of Flynn. Strzok suggests providing Flynn with a defensive briefing—that is, alerting him of the bureau’s concerns that the Russian government may be using Flynn for its own ends—and “see[ing] what he does with that.” Another, redacted correspondent writes that, “At the very least, we need to debrief or interview [Flynn] (unless told not to).” This last writer also notes, “If we usually tell [the White House], then I think we should do what we normally do”—perhaps voicing a desire to inform the White House of the FBI’s counterintelligence concerns regarding Flynn, though it is not clear. (The email chain also contains a reference to what is presumably another Crossfire Hurricane subject, “CROSSFIRE TYPHOON,” but all other information about this is redacted.)
Messages between Strzok and Page dated Jan. 23 and Jan. 24 describe disagreement among FBI leadership—seemingly Priestap, McCabe and FBI Director James Comey—though it is not clear specifically what is at issue. Another message from Jan. 24 shows Strzok alerting a redacted correspondent about an email containing suggestions for how McCabe should prepare for a call with Flynn—the same email contained in the first batch of documents from Jensen and described above.
Finally, messages between Strzok and Page dated Feb. 10 appear to show the two discussing unspecified edits to an unidentified document. The Times writes that the messages concern,
editing notes on the questioning of Mr. Flynn. His lawyers said they were further evidence that the F.B.I. doctored the interview notes known as a 302, a claim that the judge overseeing Mr. Flynn’s case, Emmet G. Sullivan of the United States District Court for the District of Columbia, has previously rejected.
None of this material gives rise to a colorable claim of misconduct, and as the Times notes, Judge Sullivan has already rejected the notion that the 302 was doctored. As the judge wrote back in December: “the Court agrees with the government that there were no material changes in the interview reports, and that those reports track the interviewing FBI agents’ notes.” Judge Sullivan went on: “Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are ‘consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.”
Flynnterpreting the Facts and the Law
In light of all of this, let’s consider the likelihood of positive outcomes for Flynn in ascending order of probability.
The least plausible outcome is that Flynn will be “exonerated” or “cleared” as a result of anything that has happened. Flynn isn’t within a country mile of being able to establish outrageous government conduct, and Judge Sullivan is most unlikely to dismiss the case as a result of these releases.
A somewhat more likely possibility is that the judge will allow him to withdraw his guilty plea. This would, of course, expose Flynn to the full range of possible charges he potentially faced. It might also expose his son to possible indictment. But that assumes that the Justice Department under Attorney General Bill Barr would actually seek to protect the prosecutorial equities of the United States, something Barr has already declined to do once in the Flynn case alone. So withdrawal of the plea could be a windfall for Flynn or a disaster depending on what happens next. To get the plea withdrawn, Flynn would have to convince Judge Sullivan that the alleged Covington conflicts are real and genuinely impaired his defense, and that he has a viable claim of innocence. This is a tall order, but he may be entitled to an evidentiary hearing on the matter and who knows what could arise out of that? The likelihood of Flynn getting the plea scotched is not high, but not trivial either.
The third possibility is that Barr will step in again. As we noted, he has already done this once in the Flynn case—the government suddenly agreed that Flynn’s conduct merited a sentence of probation after previously advocating up to six months’ incarceration—and he has appointed Jensen to review it too. He’s got his eye on the matter, and what he has planned is unclear. Suffice it for now to say that there’s reason to worry the Justice Department will not pursue the matter aggressively under his leadership, particularly if a plea withdrawal happens and the question of actually prosecuting the original case comes back on the table.
Finally, there’s the president. Trump has not ruled out pardoning Flynn—and has recently railed against the prosecution. Flynn’s most likely path out of the criminal justice system is through presidential clemency, which could arrive any day and with no warning. A great deal of the legal machinations in court and the verbal machinations in the media may well be aimed not at the legal process but at inducing the president to finally grant Flynn a pardon.
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