Special Counsel Robert Mueller was caught red-handed this week trying to pull the wool over the eyes of a veteran, no-nonsense district judge. When Mueller was ordered to surrender all government documents and “memoranda” related to the questioning of former Trump National Security Council advisor Michael Flynn last week, he deliberately withheld the most crucial and exculpatory piece of evidence — the contemporaneous notes filed by FBI officials which serve as the only record of Flynn’s fateful interview.
U.S. District Judge Emmet G. Sullivan refused to tolerate insubordination from the special counsel, however, and on Monday specifically ordered Mueller to hand over the vital interview records, known by federal law enforcement professionals as an “fd-302.” Despite Mueller’s efforts to bury them, those heavily-redacted documents were finally made public on Monday, and the interview notes show that the special counsel’s perjury case against Flynn was — as suspected — highly contestable.
Based on a dubious interpretation of the Logan Act, a 218-year-old statute under which no one has ever been convicted, then-FBI Director James Comey sent two FBI agents to the White House on Jan. 24, 2017 to speak with Flynn about his interactions with Russian officials. In a recent interview with MSNBC, Comey bragged about taking advantage of the chaos of a transitioning presidency, admitting that the interrogation was “something I probably wouldn’t have done or maybe gotten away with in a more … organized administration.”
One of those agents was FBI Section Chief Peter Strzok, who was later kicked off of the special counsel team and fired from the FBI for exchanging thousands of text messages criticizing President Donald Trump and his administration. Strzok and his unnamed partner were tasked with asking Flynn if he ever solicited his Russian counterparts to vote a certain way in the United Nations, or if he ever asked Russian Ambassador to the U.S. Sergey Kislyak to mitigate his country’s response to sanctions recently imposed by the Obama administration.
Although Flynn eventually pleaded guilty to lying about his conversation with Kislyak, the 302 isn’t very incriminating. According to the interview notes, agents asked Flynn if he recalled any conversation where he requested that Kislyak “keep the Russian response” to U.S. sanctions “reciprocal,” or asked the ambassador to avoid engaging in a “‘tit for tat.’”
Flynn’s answer wasn’t very clear. “Not really. I don’t remember,” he said. “It wasn’t, ‘Don’t do anything,’” Flynn told the agents.
A weak case
Unbeknownst to the 33-year Army veteran, however, the FBI possessed transcripts of his telephone conversation with Kislyak, whom the bureau had previously wiretapped. The special counsel maintains that Flynn, in fact, asked Kislyak to “refrain from escalating the situation in response to sanctions that the United States had imposed on Russia that same day.” Prosecutors also noted that Flynn was successful in this endeavor, since Russia ultimately “had chosen to moderate its response to those sanctions as a result of his request.”
Given the ambiguity of Flynn’s response, the special counsel would have been hard-pressed to convince a jury that Flynn was intentionally deceiving the FBI when he said that he couldn’t quite recall the substance of his conversation with the Russian ambassador. In fact, the interviewing officers and their supervisors at the bureau — including Comey — have each testified that they didn’t think Flynn was intentionally lying at the time, and the national security advisor was only charged with perjury after the special counsel was established several months later.
Perhaps this explains why a separate 302 detailing a special counsel interview with Strzok was filed on Aug. 22, 2017. Seven months after the Flynn interview, Strzok was asked to recount the finer details of the interrogation, arguably to build a stronger case against the former Trump advisor.
“Judge Sullivan has a well-established history of taking on discovery issues head-on,” James Trusty, a former senior Justice Department official, told Fox News. “So providing a seven-month-old FBI 302 is absolutely going to be a red flag for the judge, and I can’t imagine there are not going to be questions tomorrow about whether there are contemporaneous notes, or a contemporaneous report, that is in the FBI’s possession.”
Former U.S. Attorney Joseph diGenova called Mueller’s attempt to stonewall Sullivan by refusing to release the 302 “an insult to the court.”
“If a private litigant had not produced a document like this for a federal judge, he would be held in contempt,” he said. “The failure to turn over the single most important document in the Flynn case shows an effort to cover up unethical, unprofessional and illegal conduct by the office of special counsel.”
“I have no idea what Sullivan is going to do, but I have faith in him as a fine jurist who will do the right thing,” diGenova added.
A stunning turn of events. This is bad …
Besides lacking a strong perjury case against Flynn, to which he has already pleaded guilty and is awaiting sentencing, attorneys representing the retired general have argued that the FBI deliberately downplayed the seriousness of his interview and persuaded Flynn to abstain from seeking counsel.
UPDATE: Flynn was set to be sentenced on Tuesday, but in a stunning turn of events, Sullivan postponed his decision after offering Flynn a blistering rebuke. “Arguably you sold your country out,” the judge told Flynn.
“I can’t hide my disgust, my disdain,” Sullivan added. The district judge’s harsh language raises the prospects that Flynn could receive prison time for his perjury charge or seek to cooperate with the special counsel to receive mercy from the court.