Special counsel Robert S. Mueller III wrote Friday that he continued to support little or no prison time for Flynn. But he and his prosecutors vigorously pushed backed against the idea raised by Flynn’s defense attorneys that he was caught unawares by FBI agents. And they argued that his lies to Vice President Pence and others were a “material” part of a national security investigation.
“The Court should reject the defendant’s attempt to minimize the seriousness of those false statements to the FBI,” prosecutors wrote in a memo filed ahead of Flynn’s scheduled sentencing next week. “Nothing about the way the interview was arranged or conducted caused the defendant to make false statements to the FBI.”
Flynn pleaded guilty a year ago to lying to the FBI about his contacts with Russian Ambassador Sergey Kislyak during the presidential transition and agreed to cooperate with Mueller’s investigation into Russia’s interference in the 2016 campaign.
The special counsel said last week that Flynn has provided “firsthand information” about interactions between the Trump transition and Russian government officials.
However, many of Flynn’s supporters have questioned the legitimacy of the case against him. In arguing for a lenient sentence this week, Flynn’s defense attorneys made a point of noting that, among other circumstances, agents did not warn him beforehand that it was a crime to lie to the FBI.
“As General Flynn has frankly acknowledged in his own words, he recognizes that his actions were wrong and he accepts full responsibility for them,” Flynn’s attorneys wrote. “There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.”
That prompted U.S. District Judge Emmet G. Sullivan to request more information on the circumstances surrounding the January interview.
In its filing responding to Sullivan’s request, the special counsel’s office released a partially redacted memo by Andrew McCabe, who then was deputy director of the FBI, describing how he gave Flynn a heads-up that the agents wanted to interview him about the conversations with the ambassador.
According to the memo, Flynn acknowledged to McCabe that he “probably knew what was said” — suggesting he might have been aware his phone calls with the Russian diplomat would be intercepted by intelligence officials — and questioned how so much information about his calls had been made public.
Prosecutors also included a partially redacted summary of an interview with former FBI agent Peter Strzok, one of the agents who interviewed Flynn, who described his relaxed demeanor.
Taken together, the documents underscore one of the lingering oddities of the Flynn case — knowing his conversations with Kislyak were recorded and knowing that the FBI agents were going to question him about the discussions, why did he try to mislead them?
“A sitting national security adviser, former head of an intelligence agency, retired lieutenant general, and 33-year veteran of the armed forces knows he should not lie to federal agents,” the prosecutors wrote.
The memo also addressed one of the issues that Flynn supporters have raised in questioning his prosecution — that the FBI agents who interviewed him did not get the impression Flynn was lying.
The special counsel’s office conceded that the agents “had the impression at that time that the defendant was not lying or did not think he was lying.”
“Those misimpressions do not change the fact — as the defendant has admitted in sworn testimony to this district court — that he was indeed lying and knowingly made false statements to FBI agents in a national security investigation,” the special counsel’s filing said. “Those false statements were material, including by raising the question of why he was lying to the FBI, the Vice President, and others.”
Such a senior official “does not need to be warned it is a crime to lie to federal agents to know the importance of telling them the truth,” prosecutors added.
Flynn’s interview came after a Washington Post columnist reported that Flynn had spoken with the Russian ambassador to the United States on Dec. 29, 2016 — the same day the Obama administration announced sanctions and other measures against Russia.
In the wake of the column, Flynn denied at the time to fellow White House officials — including Vice President-elect Pence and incoming White House chief of staff Reince Priebus — that he and Kislyak had discussed sanctions in their conversation.
For two weeks following the Post column, “the defendant repeated the same false statements to multiple members of the presidential transition team,” the prosecutors wrote.
McCabe’s memo describes how he called Flynn in January and told the national security adviser that because of recent media coverage of his conversations with the Russian ambassador, FBI Director James B. Comey concluded that Flynn should sit down with two FBI agents.
Flynn, according to McCabe’s memo, explained he had been trying to “build relationships” with the Russians.
Flynn offered to meet with the agents that day — ultimately agreeing to an interview in his office at the White House. McCabe wrote that he told Flynn that if he wanted to involve anyone else in the conversation — like the White House Counsel’s Office — McCabe would have to involve the Justice Department.
Flynn, however, agreed to be interviewed alone.
The memos reveal new details about the setting in which Flynn had his fateful encounter with the FBI.
“Flynn was alone and ‘relaxed and jocular,’ ” according to the Strzok document. “During their walk through the West Wing, President Trump and some movers who were discussing where to place some art work walked between Strzok and [the other agent], but nobody paid attention to the agents. Flynn did not introduce them to anyone.”
According to that document, Strzok said Flynn made small talk about hotels and “the president’s knack for interior design.” And Flynn “was so talkative, and had so much time for them, that Strzok wondered if the National Security Adviser did not have more important things to do than have such a relaxed, non-pertinent discussion with them.”
Strzok left the interview with the impression that Flynn was “bright, but not profoundly sophisticated,” according to the record of the interview with him, and he left Flynn “in a collegial, positive way.”
Not everyone, though, was pleased. The document says that before the interview occurred, McCabe received a call from then-Deputy Attorney General Sally Yates on other topic.
“When he told her the FBI was interviewing Flynn,” the document says, “she was not happy.” People familiar with the case have said Yates was unhappy that the FBI had decided to interview Flynn without consulting first with the Justice Department.