The 2017 FBI interview of Trump adviser Lt. Gen. Michael Flynn wasn’t based on the controversial Russia investigation, recently released notes from an FBI meeting indicate. If that were the case, it would contradict a necessary element of Flynn’s alleged crime.
Flynn pleaded guilty in 2017 to lying to the FBI. Earlier this year he asked the judge to allow him to withdraw the plea, saying he only signed it because prosecutors threatened his son, and his lawyers gave him bad advice due to a conflict of interest. The Department of Justice (DOJ) dropped the case in May after an internal review unearthed evidence suggesting the FBI agents were trying to catch the retired three-star Army general in a lie. District Judge Emmet Sullivan has yet to rule on the dismissal.
The statement of offense attached to Flynn’s plea said his “false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals associated with the [Trump] Campaign and Russia’s efforts to interfere with the 2016 presidential election.”
The Russia investigation was taken over several months after the Flynn interview by a special counsel, former FBI Director Robert Mueller. The probe concluded in 2019 and failed to establish any such Trump-Russia collusion occurred.
But the Flynn interview wasn’t based on the Russia investigation to begin with, as indicated by notes taken by an FBI lawyer from a meeting the day after the interview (pdf).
It’s not clear who took the notes, but they are dated Jan. 25, 2017, and list attendees from the FBI as well as the DOJ National Security Division and the Office of the Deputy Attorney General.
The participants talked about the Flynn case, but not about anything related to collusion. Instead, they were discussing the Logan Act, an 18th century law that prohibits private citizens from conducting unsanctioned diplomacy with foreign states. Nobody has been successfully prosecuted under the statute. The last time prosecutors even tried was in 1852.
The FBI was about to close its investigation of Flynn in late 2016, but kept it open under the theory that Flynn violated the Logan Act when he voiced foreign policy preferences of the incoming Trump administration to foreign officials in December 2016 phone calls.
One of the meeting attendees noted that “no reasonable prosecutor” would charge a Logan Act violation, the notes indicate.
“Other transition teams,” the notes say, as somebody seemed to make the point that Flynn’s calls were equivalent to what transition teams of other president-elects have done.
“How do you assess § 1001 when you wouldn’t prosecute underlying crime?” said FBI’s then-General Counsel James Baker, the notes say.
Section 1001 refers to making false statements to the government—the law Flynn was eventually accused of breaking.
The law says that to be criminal a lie needs to be “material,” meaning it pertained to the purpose the government was fulfilling at the time.
Baker’s comment indicates the officials were operating on the premise that the FBI’s purpose at the interview was to investigate a potential Logan Act violation of Flynn’s. If that was the case, it would indicate Muller’s prosecutors grafted Flynn’s alleged lies onto the Russia investigation retrospectively.
The prosecutors never explained in what way Flynn’s answers “impeded and otherwise had a material impact” on the Russia probe.
Sullivan acknowledged as much when he was accepting Flynn’s plea in 2018. He concluded the hearing by saying he “had many, many, many more questions. … such as, you know, how the government’s investigation was impeded? What was the material impact of the criminality?”
The notes were provided to Flynn’s defense on Oct. 7 as part of the review ordered in January by Attorney General William Barr.
“The FBI knew on January 25, 2017, that none of the statements made by General Flynn to the FBI the day before could be material to any legitimate FBI investigation or action,” Flynn’s lawyers said in an Oct. 7 motion (pdf). “These notes are further exculpatory evidence—standing in direct violation of this court’s Brady order—showing that General Flynn has been innocent all along, which the FBI knew from the beginning.”
The Brady order was entered by Sullivan, as he does in every case, requiring the government to hand over any exculpatory evidence in its possession to the defense.
Last week, Flynn’s lawyers moved to disqualify Sullivan for bias. They said “he grasped at straws” at a recent hearing to try to find reasons to deny the dismissal of the case.
Sullivan responded by setting an Oct. 14 deadline for the DOJ to sound off on the motion.