Judge orders Mueller team to turn over related ‘memoranda’ after Michael Flynn’s lawyers allege FBI misconduct

December 13, 2018

For months, congressional Republicans and allies of President Donald Trump have questioned the unsavory tactics used by federal investigators during their probe into alleged collusion between the Kremlin and the Trump campaign — and now, one former Trump associate is fighting back.

In a lengthy court filing presented on Tuesday, lawyers representing former National Security adviser Michael Flynn allege that their client was coerced into not having a lawyer present during his interview with FBI agents in January 2017 and was not warned that he was furnishing his statements under penalty of perjury.

Flynn’s filing comes as many have accused Special Counsel Robert Mueller and his team of Democrat-aligned prosecutors of using perjury traps to force witnesses into cooperating with them, though this approach has failed to turn up any evidence of collusion.

A friendly chat

By all appearances, when investigators approached Flynn in January 2017 to talk about his contacts with Russian officials, the former Army general believed he was having an informal discussion with allies who worked for the same team. FBI memos known as 302s, which documented the interview, stated that Flynn was “relaxed and jocular” during the exchange, and he even gave agents a “little tour” of his White House offices.

Flynn’s breezy demeanor before investigators who secretly considered him a suspect was no coincidence. Then-FBI Deputy Director Andrew McCabe — who was fired earlier this year for unauthorized media leaks and lying to internal investigators — advised Flynn that if he wanted to get the interview done without making any fuss, he should talk to investigators without any lawyers present.

“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 in a contemporaneous 302. “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.”

Indeed, McCabe presented the very serious and consequential interview like it was merely a formality for Flynn. He first told the then-national security adviser that he would have to talk to agents during a phone call about an unrelated FBI training session.

Then, treating the interview like an afterthought, McCabe told Flynn that “we needed to have two of our agents sit down” to discuss his contacts with Russian officials. Flynn “clearly saw the FBI agents as allies,” memos composed after the interview admitted.

Setting the trap

Based on McCabe’s instructions, Flynn’s lawyers are arguing that federal agents deliberately withheld from Flynn the potential consequences of lying to investigators. The attorneys presented a 302 from one of the agents who interviewed their client that stated that FBI leadership had “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.”

In other words, at the direction of top FBI brass, agents deliberately disguised the seriousness of their undertaking to compel a suspect to be more candid and forthcoming in his testimony, according to Flynn’s legal team.

Meanwhile, some have argued that the Obama administration’s justification for investigating Flynn in the first place was built upon unreasonable pretenses. The Obama Justice Department went after Flynn for allegedly violating a 218-year-old statute under which no one has ever been convicted. Dubbed “the Logan Act,” the statute forbids political freelancing and has been frequently used by politicians to tar their opponents and create the appearance of treason.


The Flynn interview is made all the more nefarious and underhanded through the involvement of bad actors like disgraced FBI Special Agent Peter Strzok. Removed from the Mueller investigation after thousands of text messages critical of Trump were unveiled, Strzok was one of two agents responsible for interrogating Flynn.

For unknown reasons, someone edited the 302 account documenting Flynn’s testimony to reflect the date of Aug. 22, 2017 — seven months after the actual interview took place and one week after Strzok was removed from the Mueller team. Since the FBI routinely refuses to record interviews, an FBI agent who once privately wrote that he would “stop” Trump from getting elected has supplied the only version of Flynn’s interview available to judges and prosecutors.

U.S. District Judge Emmet G. Sullivan will consider Strzok’s suspicious 302 and McCabe’s instructions to his staff as he weighs the former general’s sentencing for one count of lying to federal authorities. The judge set a 3 p.m. Friday deadline for the special counsel’s office to turn over all of the government’s “memoranda” related to Flynn’s questioning.

Sullivan has overturned convictions in the past where government misconduct came to light. While federal authorities are under no legal obligation to inform suspects or witnesses that they have a right to an attorney, law enforcement officials are prohibited from coercing their interviewees or dissuading them from using counsel.


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Benjamin Baird

Benjamin Baird is a senior staff writer for the Conservative Institute. He is a veteran infantryman of Iraq and Afghanistan with over 1000 days in combat and holds a degree in Middle Eastern studies from the American Military University. Ben is Writing Fellow at the Middle East Forum and has written for dozens of conservative publications, including The Daily Caller, American Spectator, American Thinker, New English Review and Jewish News Syndicate.