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Obama DOJ officials privately told Mueller they were alarmed by FBI treatment of Flynn

A little-noticed letter from special counsel Robert Mueller's office divulges Obama DOJ concerns about FBI treatment of ex-Trump national security adviser.

Published: March 16, 2020 5:44pm

Updated: March 17, 2020 7:09am

Former acting Attorney General Sally Yates and other senior Obama-era Justice Department officials told the Russia special prosecutor in private interviews they had concerns about the FBI’s conduct in investigating former Trump National Security Adviser Mike Flynn, according to memos that paint a dark portrait of the bureau’s behavior.

The documents, which include a letter from Special Counsel Robert Mueller’s team transmitting exculpatory evidence to Flynn’s defense lawyers in 2018, offer the most detailed montage to date about why Attorney General Bill Barr recently appointed a special prosecutor to review the government’s actions in the Flynn case.

Among other things, the correspondence shows:

  • Mueller’s team accepted Flynn’s guilty plea on a charge of lying about his conversations with Russian ambassador Sergey Kislyak even though agents told DOJ they thought the former general was not lying and simply had a faulty memory.
  • DOJ officials believed the threat the FBI was using to prosecute Flynn under an obscure law known as the Logan Act was a “stretch.”
  • Flynn was lured by the FBI into a fateful interview with agents believing he was not in legal jeopardy, which caused him not to seek a lawyer.
  • Some of the DOJ officials’ assessments to the Mueller team were backed up by former deputy FBI director Andrew McCabe.

The documents add credence to the arguments Flynn’s new lawyer, Sidney Powell, is making that the former national security adviser was coerced into making his 2018 guilty plea and should be allowed to withdraw it.

Yates, the Obama administration holdover, rose in January 2017 to Trump’s acting Attorney General only to be fired by the new president. She described her concerns to the Mueller team about a Jan. 24, 2017 effort by the bureau to interview Flynn about his contacts with Russia without letting him know he was under investigation.

“During an SCO (Special Counsel Office) interview of former Acting Attorney General Sally Yates, Yates said that on January 24, 2017, Comey advised Yates that two FBI agents were on their way to interview Flynn,” a May 2018 Mueller team letter to Flynn’s lawyers stated. “The interview was problematic from Yates’ perspective because, as a matter of protocol and courtesy, the White House Counsel’s Office should have been notified beforehand.

“Yates relayed that the FBI previously had said that notification would mess up an ongoing investigation, but Yates said it was not always clear what exactly the FBI was doing to investigate Flynn.” 

The next day, Yates told the Mueller team, the FBI briefed her on what transpired during the Flynn interview and the FBI’s focus on whether he remembered talking to the Russian ambassador about sanctions.

“The gist of what she was told was that Flynn was very accommodating, but the agents had not confronted him directly,” the letter explained. “He was nudged at one point, and he said something like, ‘Oh, thank you for reminding me.’ Flynn denied having a conversation about sanctions. Yates did not speak to the interviewing agents herself, but understood from others that the interviewing agents’ assessment was that Flynn showed no 'tells' of lying, and it was possible he really did not remember the substance of his calls with Ambassador Kislyak.”

Mueller would eventually accept a guilty plea from Flynn acknowledging he lied in the FBI interview about his discussions of sanctions with Kislyak. He is now seeking to withdraw that guilty plea.

The comments attributed to Yates in the Mueller letter are far different than ones she made in May 2017 when she told CNN that Flynn was in a "serious compromise situation, that the Russians had real leverage over him.”  You can watch those here

The concerns about the FBI luring Flynn into a perjury trap are further heightened by comments made by other DOJ officials.

Former acting Assistant Attorney General Mary McCord told Mueller’s prosecutors that FBI agents did not tell Flynn he was under investigation during the interview and did not give him the usual notification that he could be charged with a crime if he misled the agents.

“The FBI did not want to insinuate the existence of a criminal investigation to Flynn, and to that end they did not give a Title 18 United States Code Section 1001 warning to Flynn,” the Mueller correspondence said. “The FBI also indicated there was no need to reinterview Flynn at the time.”

McCord told the special counsel she understood that the initial focus of the FBI in investigating Flynn “was to determine whether or not Flynn had a clandestine relationship with Russia.”

By Jan. 30, 2017, the FBI sent senior DOJ officials a memo declaring the bureau did not believe Flynn was acting as an agent of Russia, the Mueller correspondence states.

Though exonerated on Russia collusion, Flynn still faced the possibility that the agents might prosecute hm under the obscure Logan Act on the premise that his December 2016 conversations with Kislyak about sanctions might be construed as undercutting the Obama administration's authority. The idea was even leaked to the news media, further building pressure for Flynn to resign, which he did in mid-February 2017.

But while the media was suggesting Flynn was in jeopardy of being charged under the Logan Act, senior DOJ officials dismissed the idea internally, according to the Mueller documents.

"McCord said that upon learning of Flynn’s phone calls with Ambassador Kislyak, a Logan Act prosecution seemed like a stretch to her,” the Mueller summary of her interview stated.

The FBI’s McCabe affirmed McCord’s and Yates’ accounts during his own interview with the Mueller team.

“According to McCabe, after the January 24 interview with Flynn, the interviewing agents returned to the FBI and briefed McCabe,” the Mueller memo stated. "The agents believed Flynn seemed very credible in his interview. Everyone in the room thought it was amazing that the agents believed that Flynn seemed credible since he denied something that everyone else knew to be true."

“McCabe and then-acting assistant attorney general Mary McCord had many subsequent discussions about the Logan Act,” according to the memo. "They believed prosecuting a Logan act violation was a long shot."

Then-Principal Associate Deputy Attorney General Matthew Axelrod also was interviewed by the Mueller team about the Flynn interactions and disclosed that the FBI agent heading the Russia case, Peter Strzok, “provided Axelrod and others a readout of the interview.”

“Strzok provided his view that Flynn appeared truthful during the interview,” the memo recounted Axelrod as saying. “Strzok based his assessment more on Flynn's mannerisms and lack of hesitation when answering questions as opposed to what Flynn actually said."

“Additionally Strzok shared the FBI's view that Flynn agreeing to the interview without legal representation carried weight,” Mueller’s team wrote.

For months now, Flynn’s new lawyer Powell has made such claims in court filings. And others, like former House Intelligence Committee Chairman Devin Nunes, have raised the troubling prospect that Flynn was set up to be charged. It appears those claims have now found support in the testimony Mueller collected.

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