Flynn’s legal team labeled the documents a “smoking gun” that indicate this was a perjury trap, and however likely Trump was to pardon Flynn, he appears even likelier now.
But just how truly damning are the new documents?
First, let’s walk through what they show. Basically, they indicate there was an internal debate about whether to present Flynn with evidence against him in that Jan. 24, 2017, interview. Exactly what type of evidence is redacted, but it seems logical to believe it was transcripts of Flynn’s December 2016 phone calls with then-Russian Ambassador Sergey Kislyak, which is what Flynn later pleaded guilty to lying about.
On calls, Flynn and Kislyak discussed sanctions that the Obama administration had just imposed on Russia for its 2016 election interference. This risked running afoul of the Logan Act, which prohibits private citizens from conducting diplomacy on behalf of the United States. Flynn was due to be Trump’s national security adviser, but this was during the transition period between Trump’s election and inauguration, so he wasn’t yet a government official.
In the handwritten notes from an unidentified official, that official indicates being previously opposed to showing Flynn the evidence but rethinking that decision.
“I agreed yesterday that we shouldn’t show Flynn [redacted] if he didn’t admit," the official says. “I thought [about] it last night, [and] I believe we should rethink this.”
The official goes on: “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?"
That right there is what Flynn’s defenders are labeling the long-suggested “perjury trap” — i.e. the idea that the officials entrapped Flynn into lying.
But it’s worth looking at the timeline here and what else the official said in those handwritten notes.
The official goes on to suggest that not showing Flynn the evidence would make the White House “furious” because it would be viewed as “playing games.”
“We regularly show subjects evidence, with the goal of getting them to admit their wrongdoing," the official says. “I don’t see how getting someone to admit their wrongdoing is going easy on them.”
What the documents make clear — which we’ve previously known — is that the FBI believed it had strong evidence against Flynn going into the interview. This official apparently believed the evidence to be so strong that either Flynn would admit to his wrongdoing or be forced to lie about it. But either way, the case could be referred to the Justice Department for prosecution.
The term “perjury trap” has been thrown around a lot — often carelessly. In this case, though, it didn’t seem to be a matter of actually tricking Flynn into lying, but rather giving him a choice between admitting what the FBI already believed it could prove and letting him lie about it. This official believed not showing him the evidence and choosing the latter course would make the Trump White House “furious."
And here’s the important point: The official had very good reason to believe Flynn would lie about this … because he already had.
On Jan. 12, 2017 — 12 days before the Flynn interview — The Washington Post’s David Ignatius first reported the contact between Flynn and Kislyak and raised the prospect of a Logan Act violation. The next day, Jan. 13, incoming White House press secretary Sean Spicer denied Flynn had discussed sanctions with Kislyak, saying they had just discussed a meeting between Trump and Russian President Vladimir Putin. “That was it, plain and simple," Spicer said.
Two days later, on Jan. 15, Vice President-elect Mike Pence was even more explicit in denying Flynn and Kislyak had discussed sanctions. “They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia," Pence said.
After Trump was inaugurated, Spicer in a Jan. 23 White House briefing again denied it — this time citing Flynn’s own denial to him. Spicer said he spoke to Flynn “again last night” and that Flynn had told him the call focused on four subjects, none of which was sanctions.
By this point, intelligence officials had already become aware of the contents of the Flynn-Kislyak call, meaning they knew the denials were false. On Jan. 19, top intelligence and law enforcement officials debated whether to disclose the evidence to the incoming White House. Then-acting attorney general Sally Yates would later tell the White House that Flynn had misled it and that this opened him up to potential blackmail by the Russians, since they would have known the actual contents of the calls.
In other words, the FBI had a pretty good idea that Flynn would lie about this, because he had apparently already been lying about it. Even Trump later acknowledged that Flynn had lied to Pence. It was then a matter of seeing if he would double down to FBI agents or come clean — either way, giving the agents something they believed to be a crime.
Whether that tactic is appropriate is a fair question, but as had been noted by legal experts, it’s not a terribly unusual approach to such situations when you have strong evidence.
It is generally accepted that as long as law enforcement is pursuing a legitimate investigation, the “perjury trap” claim doesn’t apply. The Justice Department’s manual for U.S. attorneys states that, while such claims are commonplace, as long as law enforcement is “attempting to obtain useful information in furtherance of its investigation, the perjury trap doctrine does not apply.”
A 2018 report from the Congressional Research Service states, “The doctrine poses no bar to prosecution in most cases, however, because the government is usually able to identify some valid reason for” the inquiries.
One very valid question raised by the new documents, though, comes when the unnamed official muses about whether the goal is to “get him fired.” It’s one thing to choose between letting Flynn admit his wrongdoing or lie about it; it’s another to suggest a potential aim is his removal from his White House post. That would seem to be something that is beyond the purview of law enforcement, and it’s key to claims that Flynn was personally targeted.
But also keep in mind the Yates development: There was real concern around this time that Flynn had not just done something wrong, but that he had opened himself up to blackmail by the Russians because of his actions. In that case, it may be more understandable that the FBI saw some value in getting him removed from such a high-profile post, irrespective of whether he had committed a crime because of the possibility that he was compromised.