More questions were raised than answered Friday in the Special Counsel Robert Mueller investigation. Most reporting has it wrong.
Judge Emmett Sullivan had ordered Mueller to file FBI interview notes in the prosecution of Michael Flynn. Sullivan is scheduled to decide on a sentence for Flynn’s guilty plea on December 18 in the U.S. District Court for the District of Columbia.
Mueller’s office filed a “Government’s Reply To Defendant’s Memorandum In Aid Of Sentencing” on December 14, 2018. That covering transmittal is pure rhetoric.
As a criminal defense attorney, let me explain that those statements by Mueller attorneys Brandon Van Grack and Zainab Ahmad are spin, essentially a closing argument. These are only the prosecutors’ opinions. Yet Trump critics like Fox News’ Shepard Smith were reading that document on air as if it were evidence.
What really counts is two documents that Sullivan ordered the FBI to cough up. Exhibit A and Exhibit B raise serious questions. Both are heavily redacted, but the context of the blacked-out sections suggests that there is “no there there.”
Exhibit A is a very superficial January 24, 2017, memo to the file from when Peter Strzok and another, unnamed FBI agent interviewed Trump’s incoming National Security Adviser Flynn. The interview was at the direction of Andrew McCabe. It is reported that McCabe wrote Exhibit A. Both Strzok and McCabe are Trump haters and coup plotters as demonstrated by their text messages and emails. McCabe’s wife took over $700,000 from Friends of Hillary to run as a Democrat in Virginia for the State Senate.
As an attorney, I believe that nothing in Exhibit A would allow Judge Sullivan to sustain a criminal conviction of Flynn under 18 U.S.C. § 1001 for lying to the FBI. We don’t know what is blacked out, but the context around those redactions leave it improbable that any lie by Flynn is recorded in those interview notes.
Exhibit B is a formal FBI Form FD-302 from August 22, 2017, of an interview with Peter Strzok This is not a Form 302 of an interview with Michael Flynn. This is an interview taken of Peter Strzok. The August 22, 2017, FD-302 starts out “(U/FOUO) FBI Deputy Assistant Director (DAD) Peter P. Strzok was interviewed in his office in the Special Counsel’s office in Washington D.C.”
Inside of Exhibit B, the August 22, 2017, Form 302 states that Peter Strzok wrote a different Form 302 earlier about the January 24, 2017, interview with Flynn.
That earlier Form 302 is missing. Exhibit A does not appear to be a Form 302. It does not appear to contain anything that would support a conviction that Flynn had said anything to the FBI that was untrue. The missing earlier Form FD-302 would be enough for Judge Sullivan to throw out Mueller’s case against Flynn entirely.
Exhibit B cannot be reliable enough to support a conviction of Flynn under 18 U.S.C. § 1001. The Special Counsel’s office was interviewing the FBI agent plotting with Andrew McCabe, Linda Page, apparently Rod Rosenstein, and others to overthrow the 2016 U.S. presidential election.
Exhibit B is also heavily redacted. (Judge Sullivan will have the full, unredacted version.) But, again, the visible portions surrounding the redactions make it improbable that anything supports a conviction of Flynn.
Judge Sullivan’s unusual order telegraphed that Sullivan has doubts about the legal validity of Mueller’s prosecution of Flynn. He has a history of questioning prosecutors. He threw out the 2008 prosecution of former Senator Ted Stevens for similar reasons, in USA v Theodore F. Stevens, No. 1:08-CR-00231-EGS (Docket No. 257, December 22, 2018); Anna Stolley Persky, “A Cautionary Tale: The Ted Stevens Prosecution,” Washington Lawyer, October 2009.
Judge Sullivan will not be taking sides for or against Trump or carrying water for Flynn. For Sullivan, if prosecutors will abuse the rights of the powerful and well-connected when everyone is watching, how will prosecutors trample on the rights of the poor and unnoticed defendants. This is a crusade of honor for Sullivan. Sullivan comes from a time when judges were actually judges. Sullivan is likely to throw out Flynn’s conviction to send a message to all out-of-control prosecutors in general, not because he cares about Flynn in particular. Even though Flynn pleaded guilty, a judge still has some responsibility to ensure that a law was actually broken, a plea is fair, and procedures were not abused. The court’s authority cannot be circumvented even where the parties have agreed.
In a disturbing further revelation, Exhibit B also says “(U/FOUO) Before the interview, McCabe, [REDACTED] and others 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.”
Other reporting is now developing that one week before interviewing Flynn the “insurance policy” FBI team leaked to the news media that they had closed the investigation into transition team communications with Russia. That appears to have been a scheme to deceive Flynn into a perjury trap. The entire events seem designed to deceive Flynn into thinking the interview was just a casual, background, off-the-record discussion, not an interview.
This approach of strategic leaking, perjury traps, and winning at any cost seems to have permeated the modern FBI just as situational ethics has affected the rest of society. Like Judge Sullivan often does, we need to care about the integrity and fairness of our legal system or lose our nation.
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