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Comey’s claim he didn’t tell Congress that FBI agents thought Flynn was not intentionally lying

President Trump, former FBI director James B. Comey and former national security adviser Michael Flynn's stories are entangled, to say the least. (Video: Meg Kelly/The Washington Post)

Fox News’s Bret Baier: “Did you tell lawmakers that FBI agents didn’t believe former National Security Adviser Michael Flynn was lying intentionally to investigators?”
Former FBI Director James B. Comey: “No … .And I saw that in the media. I don’t know what — maybe someone misunderstood something I said. I didn’t believe that and didn’t say that.” 
— exchange on “Special Report with Bret Baier,” April 26, 2018

We’re going to explore a curiosity about the investigation in the Trump campaign’s possible ties with Russia. A central figure is Michael Flynn, President Trump’s first national security adviser who was fired on Feb. 13, 2017, in the opening weeks of the administration after he supposedly misled Vice President Pence about his conversation with then-Russian ambassador Sergey Kislyak. (The whole story can be seen in our compelling video above.)

Special counsel Robert S. Mueller III secured Flynn’s guilty plea to lying to FBI agents who on Jan. 24 had interviewed him about his conversations with Kislyak. Flynn spoke to the agents without a lawyer present. One of the agents was Peter Strzok, who was later removed from the Mueller investigation because of anti-Trump animus discovered in his texts.

U.S. officials had become aware of the Flynn-Kislyak conversations because of intelligence monitoring of Kislyak.

Flynn’s plea agreement states that he made “materially false statements and omissions” during the FBI interview, specifically that he did not ask Kislyak to refrain from responding to sanctions imposed by outgoing president Barack Obama because of Russian interference in the U.S. election. He also falsely described another conversation with Kislyak, saying he asked only how Russia would vote on a resolution critical of Israel, when in fact he asked Russia to vote against or delay the resolution.

It sounds pretty damning. But here’s the rub: There is evidence that the FBI agents thought Flynn was truthful when they interviewed him. Let’s explore.

The Facts

When Comey was on his book tour, Baier asked him directly whether he told lawmakers that the agents did not think Flynn was lying intentionally. He said “maybe someone misunderstood” what he said, but he “didn’t say that.”

Comey was speaking a year later and without the benefit of notes or a transcript. As we have often noted, contemporaneous notes should often outweigh after-the-fact memories because they were written at the time. That’s what makes Comey’s memos of his conversations with Trump potentially powerful evidence.

There are contemporaneous notes that call into question Comey’s version of what he told Congress.

In a letter dated May 11 to FBI Director Christopher A. Wray and Deputy Attorney General Rod J. Rosenstein, Sen. Charles E. Grassley (R-Iowa) quoted from notes taken by a “career, nonpartisan law enforcement officer” who attended a March 15, 2017, briefing by Comey. The agent quoted Comey as saying the FBI agents “saw nothing that led them to believe [he was] lying.” Grassley also quoted from committee staff notes that “agents saw no change in his demeanor or tone that would say he was being untruthful.”

The majority report of the House Intelligence Committee includes a finding that FBI agents “did not detect any deception during Flynn’s interview.” As evidence, the report quotes Comey from a private briefing on March 2, 2017: “the agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”

The majority report also quoted from a briefing given by Deputy FBI Director Andrew McCabe on Dec. 19, 2017, after Flynn pleaded guilty: The “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” McCabe added, “The two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case.”

The “minority views” offered by Democrats did not challenge whether these quotes were correct or whether they were taken out of context. (A spokesman for the Democrats says the quotes are accurate.) The document simply notes the majority finding “ignores both that Flynn himself admitted in his plea to deceiving FBI agents, and that by the time of his interview with the FBI on January 24, 2017, at least one other official was aware that Vice President-elect Pence had told the same lie on television.”

These accounts of the Comey and McCabe briefings track with press reporting at the time. CNN reported on Feb. 17, 2017, that the FBI was not expected to pursue charges against Flynn.

“Flynn initially told investigators sanctions were not discussed. But FBI agents challenged him, asking if he was certain that was his answer. He said he didn’t remember,” the CNN report said. “The FBI interviewers believed Flynn was cooperative and provided truthful answers. Although Flynn didn’t remember all of what he talked about, they don’t believe he was intentionally misleading them, the officials say.”

It’s of course possible that Flynn is a good liar. The FBI agents may not have detected deception at the time of the interview, but in his negotiated plea agreement, Flynn admitted to making false statements or omitting key facts about his interactions with the Russian ambassador. The statement of offense, signed by Flynn, states:

During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FLYNN’s request.

Moreover, then-acting attorney general Sally Yates went to the White House two days after the FBI interview to warn that Flynn was vulnerable to blackmail because sanctions had been discussed on the calls, despite the administration’s public denial.

Some have suggested that Flynn may have been railroaded into cutting a plea deal for something he did not do. But it’s important to recall that Flynn was facing other possible charges – and his son was under scrutiny as well.

The statement of offense, for instance, includes a reference to “other false statements regarding Flynn’s contacts with foreign governments,” specifically regarding his lobbying for Turkey. In many plea agreements, the prosecutor agrees to defer action on other possible charges in exchange for a guilty plea on more narrowly tailored charges as well as cooperation in the broader investigation.

The Flynn plea agreement notes that “in consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached statement of offense.”

An attorney for Comey did not respond to a request for comment.

The Pinocchio Test

Comey claims that he did not tell Congress that the FBI agents who interviewed Flynn did not believe he was lying to them. But notes of a Senate briefing and a transcript of a House briefing clearly indicate that Comey made statements along those lines, telling the Senate the agents “saw nothing that led them to believe [he was] lying” and the House that “they saw nothing that indicated to them that he knew he was lying to them.” Press accounts at the time also indicate that the FBI thought it had no case against Flynn.

One possible interpretation is that Comey’s quotes to the House and Senate were that the agents reported that Flynn’s body language did not indicate he was lying, but that’s not the same thing as saying the agents did not think he was lying. Comey speaks carefully, but this may be parsing his words too closely.

The contemporaneous record appears more credible than Comey’s memory more than a year later. In the end, Flynn pleaded guilty to lying to the FBI, so some might argue the agents’ impressions are no longer valid. But Comey should take steps to correct the record. He earns Two Pinocchios.

Two Pinocchios

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Two Pinocchios
“No … .And I saw that in the media. I don’t know what — maybe someone misunderstood something I said. I didn’t believe that and didn’t say that.”
in an interview with Bret Baier of Fox News
Thursday, April 26, 2018