A judge is asking the Mueller probe for answers after former National Security Advisor Michael Flynn’s legal team claimed in a Tuesday court filing that he was pressured into not having a lawyer present during the January, 2017 interview which led to charges against him.
“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,” Fox Newsreported.
The move came one day after the filing, which said that then-FBI Deputy Director Andrew McCabe had made the request that Flynn go lawyer-less.
McCabe had said he “felt that we needed to have two of our agents sit down” with Flynn and talk about 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.
“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.”
In the so-called 302 report — an FBI document which summarizes interviews with subjects — one of the agents also noted that they “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.”
According to the filing, 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,” the 302 noted. “If Flynn still would not confirm what he said, … they would not confront him or talk him through it.”
This, according to Fox News, deviated significantly with the FBI’s interview with former Trump campaign employee George Papadopoulos, in which it was made clear that false statements to the FBI constituted a crime and that the subject had the right to counsel.
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That interview took place on Jan. 27, 2017 — just three days after Flynn’s interview took place.
The 302 itself is also an issue of contention — or rather, when it was filed is. Even though Flynn’s interview was in January, the 302 was dated Aug. 22, 2017, almost seven months after the interview happened.
Furthermore, as The Federalist reported Thursday, former FBI Director James Comey testified that he had read the 302 report or talked to agents who had read it before he left the Bureau. Comey was fired on May 9, 2017 — more than three months before the 302 was filed — leading to speculation there might have been a second 302 report filed.
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Additionally, a series of text messages between FBI lovebirds Lisa Page and Peter Strzok — the latter of whom conducted the interview — potentially referenced a Flynn 302 in February of 2017.
When you consider that even McCabe has confirmed agents “didn’t think (Flynn) was lying” during the interview, this raises some questions about just what might have been in an earlier document.
“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,” Fox News reported. “Sullivan similarly demanded that Flynn’s lawyers produce the McCabe memorandum and 302 they used to make their assertions.”
That “any similar documents” might be giving the FBI some nightmares right now — particularly if that second 302 is around.
As for what this means for Flynn, it could mean that his Tuesday sentencing is delayed; given that Mueller was recommending no jail time, that isn’t too much of a concern. If he was deprived of his constitutional right to counsel through coercion, it also could mean that the judge could throw out the charge.
While there’s nothing pointing that way so far, mind you, Sullivan is the same judge who tossed former Alaska Sen. Ted Stevens’ 2008 conviction on corruption charges due to evidence of government misconduct.
What this amounts to remains to be seen, as so many things in the Mueller investigation do. However, this again adds a patina of deep statiness to a case that’s already had a few layers of it. The FBI oughtn’t be in the business of advising people to forego lawyers during an interview, particularly if it’s going to end with them pleading guilty to a felony.
And, as for that potential phantom 302 — well, as they say, get your popcorn ready.