New evidence turned over to Flynn shows DOJ doubted criminal case against Trump adviser

Fourteen pages of new memos include handwritten notes from senior DOJ officials from early 2017.

Updated: July 8, 2020 - 12:56pm

Months before they approved a prosecution of Michael Flynn, senior Justice Department officials expressed skepticism in internal notes about the FBI's continuing pursuit of the Trump national security adviser and the possibility of charging him with a crime, Just the News has learned.

The skepticism about whether Flynn intended to lie during an FBI interview or posed a national security threat was expressed in handwritten notes that were turned over Tuesday to Flynn's defense team and the judge overseeing his case under a protective order, according to multiple sources.

The documents were discovered recently by U.S. Attorney Jeff Jensen, who was specially appointed by Attorney General William Barr to review the conduct of the FBI and the DOJ in the Flynn case. They are the latest exculpatory materials — evidence that Flynn could have used to prove his innocence — that were withheld from his defense and only belatedly produced more than two years after he pleaded guilty to lying to the FBI.

The sources told Just the News the new documents included extensive notes taken by senior Justice Department official Tashina Gauhar, former FBI agent Peter Strzok, and former DOJ and FBI lawyer Dana Boente between January and March 2017, long before Flynn's case was referred to Special Counsel Robert Mueller or Flynn reached a deal to plead guilty later that year.

The notes include records of a late January 2017 meeting where Flynn's case was discussed by numerous senior FBI and DOJ officials. The meeting occurred nearly three weeks after the FBI agent who had investigated Flynn's contacts with Russia, including ambassador Sergey Kislyak, had already concluded the Trump adviser had not engaged in any wrongdoing and that the five-month-long investigation should be closed down without any further action.

FBI supervisors overruled the agent and kept the case open, pivoting instead to the idea of seeking an interview with Flynn and pursuing a prosecution under the rarely used Logan Act.

According to sources who have seen the notes, Justice officials expressed skepticism that the Logan Act could be applied to Flynn's conversations with the Russian ambassador during the transition, and were told Flynn appeared to have been forthcoming and did not intend to lie to the FBI. The notes also make clear officials had ruled out Flynn as having acted improperly as an agent of Russia, the sources said.

The notes appear to support testimony previously given to Mueller by former Deputy Attorney General Sally Yates and former acting Assistant Attorney General Mary McCord, both of whom expressed concerns about the way the FBI was pursuing Flynn. Just the News reported on their testimony earlier this year.

Yates told Mueller that the FBI advised her that "Flynn was very accommodating" and 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."

McCord told Mueller’s prosecutors that "upon learning of Flynn's phone calls with Ambassador Kislyak, a Logan Act prosecution seemed like a stretch to her."

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, according to documents Mueller's team belatedly turned over to Flynn's lawyers.

Then-Principal Associate Deputy Attorney General Matthew Axelrod also was interviewed by the Mueller team about the Flynn interactions and disclosed that Strzok "provided his view that Flynn appeared truthful during the interview," an assessment "based more on Flynn's mannerisms and lack of hesitation when answering questions as opposed to what Flynn actually said," a summary of Axelrod's interview stated.

Gauhar, an Obama-era holdover, has shown up in several prominent DOJ national security cases over the years, but her work on the Russia case mostly escaped public attention until last month when Senate Judiciary Committee Chairman Lindsey Graham included her name on a list of possible witnesses he may subpoena in his ongoing probe of the Russia case investigators.

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