The documents released Wednesday evening include notes showing FBI officials discussed in advance how to handle a January 2017 interview with Flynn about his contacts with Russia’s ambassador to the United States before Trump took office. Three people familiar with the matter said the notes were written by E.W. Priestap, the former assistant director of the FBI’s counterintelligence division. The people spoke on the condition of anonymity because Flynn’s case is still being weighed by the courts. A lawyer for Priestap did not respond to messages seeking comment.
Flynn’s lawyers, Sidney Powell and Jesse Binnall, have called the materials “stunning” evidence showing Flynn was “set up and framed by corrupt agents at the top of the FBI.”
Trump, who removed Flynn less than a month after taking office but has long accused those who investigated him of corruption, told reporters Thursday: “They destroyed him, but he’s going to come back, like I say, he’s going to come back, bigger and better.”
Trump’s comments in support of Flynn, who pleaded guilty in late 2017 to lying to the FBI, have revived speculation that he intends to pardon his former aide, one of several people close to the president who were charged as part of former special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 election.
But Trump suggested Thursday he might wait to see how the courts deal with the case. “I don’t have to stay out of it, at all, but I like to stay out of it,” he said.
He also blasted James B. Comey, the former FBI director who sent agents to interview Flynn in 2017. Trump fired Comey in May 2017, setting the stage for Mueller’s appointment to investigate the president.
“DIRTY COP JAMES COMEY GOT CAUGHT!” Trump tweeted.
Vice President Pence, whom officials said Flynn lied to in early 2017, said Thursday that he was “deeply troubled” by the latest documents, adding: “I know what General Flynn told me, and I’m more inclined to believe it was unintentional than ever before.”
While Flynn, Trump and their supporters say the retired Army general was entrapped by the FBI, it remains to be seen whether the judge overseeing his case, or the Justice Department’s leadership, will agree with that assessment. Prosecutors are due to file legal papers about the FBI documents on May 11.
The notes show that before the Flynn interview, FBI officials discussed the possibility he would lie to them, given that he had already apparently denied to other White House officials that he’d discussed sanctions against Russia weeks earlier in phone calls with then-Russian Ambassador Sergey Kislyak.
“What is our goal?” Priestap wrote in the notes. “Truth/admission or to get him to lie, so we can prosecute him or get him fired?” Priestap also wrote that the FBI should “protect our institution by not playing games.”
Another set of documents filed Thursday revealed the code name the FBI gave to a 2016 investigation into Flynn’s possible ties to Russia. That case, Crossfire Razor, was shutting down just as the FBI took a renewed interest in Flynn while Trump was preparing to take office, the documents show.
“These notes raise questions about the investigation, and it is not surprising that Flynn’s defense team is pressing the defense of entrapment,” said Robert Mintz, a former federal prosecutor now in private practice. “But entrapment is a high bar. It is not enough simply to show that government agencies solicited a criminal act from a defendant. The critical issue for the defense is proving that investigators induced the defendant to engage in criminal conduct that the defendant would not otherwise have committed.”
“In order to succeed here,” Mintz continued, “the defense will have to prove not merely that the FBI anticipated that Flynn might lie during the interview, but that the FBI encouraged him to lie and induced him to commit a crime that he otherwise would not have committed.”
Chuck Rosenberg, a former U.S. attorney who also served as Comey’s chief of staff, said the notes do not make a case for entrapment.
“It is not a close call,” said Rosenberg. “In this situation, Flynn had three options: tell the truth, lie or refuse to talk. The FBI did not plant a lie, urge him to repeat the lie, record him in the lie, and then prosecute him for lying. That might be entrapment. Here, Flynn was predisposed to lie, chose to talk, and then lied. That’s not entrapment.”
Rosenberg called Priestap “a thoughtful and careful agent, and if you read the entire page of notes and put it in context, you can see that he is trying to be fair.”
Gregory A. Brower, a former Republican U.S. attorney and FBI official under Comey, said the entrapment argument seems aimed primarily at Attorney General William P. Barr and Trump.
“I can’t think of a case in the past where a defendant has been able to get any traction at all with the Justice Department to undo his guilty plea — that’s a very unusual thing,” said Brower.
A Justice Department spokeswoman said the documents were released after Barr appointed Jeff Jensen, the U.S. attorney for St. Louis, to review Flynn’s case.
Jensen, the spokeswoman said, “determined they should be provided to the court and defense counsel.”
Late Thursday, U.S. District Judge Emmet G. Sullivan ordered Flynn not to file any more internal FBI documents to the court until Jensen had finished his review.
Since his guilty plea, Flynn, 61, has changed course and has sought to withdraw the plea, saying he was entrapped, received poor advice from his previous lawyers and is actually innocent.
The single page of handwritten notes written by Priestap, dated the day of Flynn’s interview, appear to reflect his view that if Flynn lied in the interview, agents should confront him with a redacted piece of evidence so that he will come clean.
“I don’t see how getting someone to admit their wrongdoing is going easy on him,” the notes say, adding, “If we’re seen as playing games, WH will be furious.”
Priestap authorized the opening of an investigation into Trump campaign advisers in August 2016. Unlike other FBI officials, Priestap has so far emerged from the various reviews of that investigation relatively unscathed.
The Justice Department inspector general, for example, said Priestap’s approving the opening of the case “was in compliance with Department and FBI policies,” and investigators “did not find documentary or testimonial evidence that political bias or improper motivation influenced his decision.”