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Mueller: FBI agents didn't dupe Flynn

POLITICO logo POLITICO 12/14/2018 By Kyle Cheney
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Special counsel Robert Mueller's team said Friday that the FBI acted appropriately when agents questioned former national security adviser Michael Flynn in January 2017, batting down theories that Flynn was the victim of partisan FBI officials bent on taking down the president.

That meeting, in which Flynn later said he lied to bureau investigators about his contacts with Russian officials, eventually led the ousted national security adviser to plead guilty to lying to the FBI.

Since then, Flynn's allies — including family members, defenders in Congress and President Donald Trump himself — have claimed that Flynn was essentially set up, noting that the agents encouraged Flynn to speak to them without a lawyer and never warned him that lying to the FBI was a crime.

The issue has jumped into the spotlight ahead of Flynn’s expected sentencing next week for the lying charges. The retired military officer’s lawyers mentioned the issue in a filing last week that asked for leniency for their client, arguing that Flynn should receive no jail time because of his “extensive cooperation with Mueller,” “exceptional record of military service” and “genuine contrition” for his actions.

On Friday, Mueller’s team replied that the FBI officials had followed protocol, considering they were conducting a counterintelligence investigation into Russian attempts to disrupt the 2016 election.

And, they added, Flynn’s senior position in government — he had previously run the Defense Intelligence Agency under President Barack Obama — had brought him into contact with investigators before, making it highly unlikely that he wouldn't be aware of the legal consequences of lying.

a man wearing a suit and tie: Michael Flynn's allies have claimed that he was essentially set up, noting that the agents encouraged Flynn to speak to them without a lawyer. © Mark Wilson/Getty Images Michael Flynn's allies have claimed that he was essentially set up, noting that the agents encouraged Flynn to speak to them without a lawyer.

"A sitting National Security Advisor, former head of an intelligence agency, retired Lieutenant General, and 33-year veteran of the armed forces knows he should not lie to federal agents,” Mueller’s team said in its filing.

Trump fired Flynn 24 days into his stint as national security adviser after Flynn lied to Vice President Mike Pence about his contacts with the Russian ambassador during the presidential transition. Flynn told administration officials that calls between him and the Russian ambassador Sergei Kislyak during the transition were a simple exchange of pleasantries — and senior officials then touted that line publicly.

Mueller's team noted that Flynn told the same false story to multiple colleagues before his FBI interview, beginning when he asked colleagues to pass false information to The Washington Post indicating that Flynn's calls with Kislyak may have undercut Obama administration sanctions on Russia.

"Over the next two weeks, the defendant repeated the same false statements to multiple members of the Presidential Transition Team, including Vice President-Elect Michael Pence, incoming White House Chief of Staff Reince Priebus, and incoming White House Press Secretary Sean Spicer," they continued.

Flynn later admitted that the call included a discussion of sanctions the Obama administration had leveled in response to Russia's interference in the election.

Mueller’s filing Friday includes a Jan. 24, 2017, memo drafted by former FBI Deputy Director Andrew McCabe describing how he set up the Flynn interview.

“I explained that in light of the significant media coverage and public discussion about his recent contacts with Russian representatives, that [FBI] Director [James] Comey and I felt that we needed to have to of our agents sit down with the General and hear from him the details of those conversations,” McCabe wrote in a partially redacted memo appended to the filing.

Flynn, according to McCabe, “stated that I probably knew what was said.” Flynn also raised concerns about possible leaks of his calls.

“I replied that we were quite concerned about what we perceived as significant leaks," McCabe's memo added.

Prosecutors have also noted that Flynn faced criminal exposure for lobbying on behalf of the Turkish government — and advocating for the extradition of a Turkish dissident residing in the United States — without disclosing those ties.

Mueller on Friday said Flynn also admitted to making "materially false statements" in a later interview with the Justice Department about those activities, despite having a lawyer present for that discussion.

"The defendant made those false statements while represented by counsel and after receiving an explicit warning that providing false information was a federal offense," Mueller's team noted. "The defendant was equally responsible for telling the truth to both Department of Justice entities, and under both circumstances he chose to make false statements. "

After Flynn's guilty plea, the ex-Trump official become an immediate and routine cooperator with Mueller’s Russia probe. During a series of 19 interviews with prosecutors, Flynn provided significant assistance in their ongoing look into contacts between the Trump campaign and Russians, as well as other ongoing matters. Citing this assistance, prosecutors urged the federal district court judge in the case — Emmett Sullivan — to impose a sentence that includes little to no jail time.

Flynn's attorneys, though, while seeking a light sentence as well, raised questions about the FBI's handling of Flynn's case. They noted that the McCabe — who had suggested that Flynn proceed to the interview without a lawyer to avoid having to involve the Justice Department — was later investigated for misconduct, as was Peter Strzok, one of the two agents who interviewed Flynn, after a series of text messages revealed anti-Trump bias.

"As General Flynn has frankly acknowledged in his own words, he recognizes that his actions were wrong and he accepts full responsibility for them," his lawyer Robert Kelner wrote in a pre-sentencing filing last week. "There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment."

The judge signaled his interest in the matter Thursday, requesting copies of the FBI notes that described the conditions and circumstances or a memo from prosecutors — the one Mueller's team filed Friday afternoon — explaining the situation.

Mueller's team batted down the speculation about Strzok in a separate memo filed that was a July 2017 debrief of Strzok about his Flynn interview. The memo showed that that McCabe told Strzok to interview Flynn. It also revealed that when Comey informed then-acting Attorney General Sally Yates that the FBI planned to interview Flynn, “she was not happy.”

“Flynn was unguarded and clearly saw the FBI agents as allies,” according to Strzok’s interview. “He talked about various subjects, including hotels where they stayed during the campaign and the President’s knack for interior design.”

“Flynn was so talkative, and had so much time for them, that Strzok wondered if the National Security adviser did not have more important things to do than have such a relaxed, non-pertinent discussion with them," the memo added.

Strzok also revealed that as Flynn guided him and a fellow agent through the West Wing for his interview, Trump walked past them with movers “discussing where to place some art work.”

“[B]ut nobody paid attention to the agents," Strzok recalled. "Flynn did not introduce them to anyone."

Flynn's family members — and most pointedly his son Michael Flynn Jr. — have mounted an aggressive public attack against Mueller and his team, suggesting they were corrupt partisan operators and calling on Trump to pardon Flynn. Republicans on Capitol Hill also questioned the circumstances surrounding Flynn's interview.

"They gave General Flynn a great deal because they were embarrassed by the way he was treated — the FBI said he didn’t lie and they overrode the FBI," Trump tweeted, suggesting erroneously that the FBI claimed Flynn didn't lie. "They want to scare everybody into making up stories that are not true by catching them in the smallest of misstatements. Sad....."

In particular, Flynn's defenders pointed to reports that Flynn gave no physical indications of lying during his FBI interview, according to the agents who questioned him. They interpreted this finding as proof that Flynn intended to be truthful but may have forgotten certain details — while prosecutors had access to a transcript of Flynn's phone calls with Kislyak. Senate Judiciary Committee Chairman Chuck Grassley demanded documents related to Flynn's FBI interview in May and complained that the bureau seemed to be withholding the information.

But during a congressional deposition last week, Comey noted that agents concluded that Flynn was "obviously" lying — even if he didn't show physical signs of it, like shifting in his chair or sweating.

"The conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception," Comey said.

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