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The Tragedy of Michael Flynn: Part Three

There have been disturbing revelations about the intentions of the FBI in investigating Lieutenant General Michael Flynn. Since the lying-to-the-FBI charge was the only one that Special Counsel Robert Mueller could realistically bring against Flynn, it becomes increasingly essential to scrutinize these discoveries, which were made public by U.S. Attorney Jeffrey Jensen.

Michael Flynn (The Federalist)

After the 2016 election, discussion was rife in the FBI regarding why and how to secure an interview with Flynn. On 21 January 2017, FBI Agent Peter Strzok emailed Edward William “Bill” Priestap, then the assistant director of the FBI Counterintelligence Division, and recommended a “defensive briefing or interview” with Flynn unless precluded from doing so by the White House. Someone—perhaps a superior—responded to Strzok in the affirmative and declared a need to “debrief or interview” Flynn (Federal Bureau of Investigation, 2017). We can say “perhaps a superior” is because after that email in the affirmative—sent on 22 January 2017—the FBI started sketching out its plans for interviewing Flynn.

On 23 January 2017, FBI lawyer Lisa Page emailed Strzok (and someone else, who is redacted) a question: “Could the admonition” that it is a crime to lie to the FBI “be given at the beginning of the interview? Or does it have to come following a statement which agents believe to be false?” Then, Page added, “It seems to be if the former, then it would be an easy way to just casually slip that in. ‘Of course as you know sir, federal law makes it a crime to…’” (Department of Justice, 2017). Page wanted to let down Flynn’s guard by making the mention of the criminal statute against lying to the FBI—Title 18, § 1001—a casual suggestion. As you will see, the agents eventually obliged for a position even more extreme than Page’s: Completely neglecting to remind Flynn of § 1001.

The next email released by Jensen is from Strzok to several redacted individuals (one person who is carbon-copied—FBI General Counsel James A. Baker—is not redacted). Strzok writes, “[F]or DD’s consideration about how to answer in advance of his call with Flynn:” and then lists a dozen questions Flynn could potentially ask (Department of Justice, 2017). “DD” stands for deputy director—as in Andrew McCabe, who was tasked with scheduling the interview with Flynn (Defendant's Memorandum in Aid of Sentencing, 2018).

Among the potential questions for McCabe are “[a]m I in trouble?”, “[a]m I the subject of an investigation?”, and “[d]o I need an attorney?” (Department of Justice, 2017). This is speculation, but the fact that Strzok suggested such queries as fodder for “consideration” seems to indicate that he did not want McCabe to give Flynn a straight answer to any of them—Strzok did not want to worry Flynn at the expense of an unguarded, candid, and perhaps incriminatory interview.

The biggest revelation from Jensen’s latest release is a piece of note paper drafted by “EP” (i.e., Assistant FBI Director E.W. “Bill” Priestap) and dated 24 January 2017. It is a summary of an internal discussion regarding the game plan for the Flynn interview, with a section indicating McCabe’s strategy (header: “DD”) and another with plans for the interview (header: “Afterwards”). Frustratingly, about a quarter of the document is redacted, but what is available is expositive enough.

The planning process for the interview is particularly startling. Priestap poses a question, “What’s our goal?”, and transcribes just one answer: “Truth/Admission or to get [Flynn] to lie, so we can prosecute him or get him fired?” Afterwards, Priestap’s notes are centered around whether the FBI should present Flynn with the transcript of the Kislyak call before they quiz him on a month-old call.

Priestap initially notes, “We regularly show subjects evidence, with the goal of getting them to admit their wrongdoing,” but he closes with a different approach: “Or, if [Flynn] initially lies, then we present him [redacted] + he admits to it, document for DOJ, + let them decide how to address it” (Department of Justice, 2017). The goal of the FBI interview, at least according to Priestap, was to create something for the DOJ to “address.” (For reference, the redacted patch takes up about the same amount of space as the word “transcript.”)

Under the header “DD,” Priestap outlines the objectives for the Flynn interview: (1) “to resolve case” of Flynn and the Russians and (2) “to determine if Mike Flynn is going to tell the truth” regarding “his relationship w/Russians.”

Compare these goals with the pretenses under with McCabe secured the interview with Flynn: He phoned Flynn’s secure phone at the White House and commenced with a discussion of “a security training session the FBI had recently conducted at the White House.” It was only afterwards that he “stated that he ‘felt that [the FBI] needed to have two of our agents sit down’ with General Flynn to talk about his communications with Russian representatives” (Defendant's Memorandum in Aid of Sentencing, 2018). In a 24 January 2017 memorandum cited by Flynn’s counsel, McCabe recounted the conversation:

I explained that I thought the quickest way to get this done was to have a conversation between [Flynn] and the agents only. 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. [Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants. (Defendant's Memorandum in Aid of Sentencing, 2018.)

McCabe said that the FBI wanted to have “two of [its] agents sit down” for a “talk” about Flynn’s communications—all without an attorney for Flynn. The latter point suggests that Flynn was expected to believe he was not in legal jeopardy, which is contrary to one of the Priestap-transcribed objectives: “to resolve [the] case” of Flynn and the Russians (Department of Justice, 2017). How can a case be resolved if the principal does not know he is under investigation, rendering him unable to present exculpatory information?

The agents dispatched by McCabe—Strzok and an unnamed accessory—arrived at 2:15pm to find a “relaxed and jocular” Flynn who “clearly saw the FBI agents as allies,” per a 22 August 2017 FD-302. The document also notes that McCabe and FBI officials “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.” However, the FBI decided that 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. If Flynn still would not confirm what he said, … they would not confront him or talk him through it.” The interviewers executed the plan without a hiccup (Department of Justice, 2017).

The circumstances surrounding the Flynn interview provoked concern even before the recent documents were released by Jensen, disquiet that was augmented by public comments by FBI principals. The Christian Science Monitor notes, “Some legal analysts agree the agents appear to have sought to entrap Flynn, citing comments made by former FBI Director James Comey,” who told an “audience that he personally decided to send the two agents to the White House to interview Flynn – and that he decided to bypass normal protocol” (Richey, 2018). (On a side note, it is possible that Comey was redacted superior who allowed Strzok to pursue Flynn for a “debrief or interview.”)

According to the Monitor, Comey’s words were: “If the FBI wanted to send agents into the White House itself to interview a senior official, you would [normally] work through the White House counsel and there would be discussions and approvals. I thought, it’s early enough, let’s just send a couple guys over” (Richey, 2018).

The Strzok emails, the Priestap notes, the 22 August 2017 FD-302, and the Comey comments converge to demonstrate a disturbing exercise of FBI power. The bureau took advantage of the naiveté of an infant administration to schedule a casual interview with a man who, unbeknownst to him, was a principal in an investigation. This strategy crystallizes what we could call the Flynn standard: the practice of not telling the subject of an investigation that he is under investigation, and proceeding to deploy FBI agents against him to coax him into committing a procedural crime—all with the goal of prosecuting him or getting him fired. This is a personal opinion, but the Flynn standard appears to be incompatible with the goals of law enforcement and the U.S. justice system.

Granted, Flynn played fast and loose with the truth in the interview, but as we will examine in the next section of this analysis, Flynn’s misrepresentations are not tantamount to a material fabrication.

This is the third part of a six-part series on the investigation and prosecution of Lieutenant General Michael Flynn, written by Declan M. Hurley. This segment is entitled "Was Flynn’s Crime Manufactured?" Hurley's source list (to which the parenthetical citations correspond) can be found here: