by Daveda Gruber:
Special Counsel Robert Mueller’s latest filing in regard to the case of Michael Flynn has an obvious exclusion of a key document.
Flynn who is the former national security adviser is due to be sentenced on Tuesday. The missing document may work in Flynn’s favor.
The special counsel had been ordered to turn over all government documents and “memoranda” related to the questioning of Flynn by U.S. District Judge Emmett G. Sullivan.
Flynn’s attorneys had claimed the FBI had discouraged him from bringing a lawyer to his ill-fated January 24, 2017 interview with agents at the White House.
In the end, Flynn pleaded guilty to making false statements about his contacts with Russia’s ambassador, in relation to that meeting.
Mueller met the deadline and presented the documents set by Sullivan for this past Friday. Some were heavily redacted.
A new memo from Mueller’s team defending the FBI’s handling of the interview and saying nothing about the way it was conducted “caused the defendant to make false statements to the FBI.”
Filings included a January 2017 memo on Flynn from then FBI Deputy Director Andrew McCabe and a “302” (a document memorializing interviews) which detailed a July 19, 2017 interview with then FBI agent Peter Strzok.
Strzok is one of two agents who interviewed Flynn. He described that meeting in the document that was filed August 22 of the same year.
An original “302” from the period of the January 2017 interview was not included.
No one seems to know if the document exists.
The Strzok interview file showed to repeatedly refer to a “302” drafted after the Flynn interview.
In another section it said that throughout the interview, Flynn did not give any indication of deception and only hedged once, “which they documented in the ‘302’.”
A former senior Justice Department official James Trusty now works as a criminal defense attorney at Ifrah Law. He noted that Sullivan would notice that the “302” submitted Friday is dated seven months after the Flynn interview took place.
Trusty said, “Judge Sullivan has a well-established history of taking on discovery issues head-on. So providing a seven-month-old FBI 302 is absolutely going to be a red flag for the judge, and I can’t imagine there are not going to be questions tomorrow about whether there are contemporaneous notes, or a contemporaneous report, that is in the FBI’s possession.”
Technically, Sullivan has the authority to toss Flynn’s guilty plea and the charge against him if he concludes the FBI interfered with Flynn’s constitutional right to counsel.
Sullivan has given no indication that he intends to do so.
After he apparently gave the interview that formed the basis for the “302” in Mueller’s filing, Strzok was fired from the Russia probe.
We all know about Strzok’s anti-Trump rhetoric.
No audio recording or other documentation of Flynn’s comments to the FBI have been produced.
Former U.S. Attorney Joseph diGenova said, “If a private litigant had not produced a document like this for a federal judge, he would be held in contempt. The failure to turn over the single most important document in the Flynn case shows an effort to cover up unethical, unprofessional and illegal conduct by the office of special counsel.”
DiGenova has unofficially advised President Trump throughout Mueller’s investigation. He said that the absence of the original “302” was “an insult to the court.”
DiGenova said, “I have no idea what Sullivan is going to do, but I have faith in him as a fine jurist who will do the right thing.”
Chris Swecker, the former head of the FBI’s Criminal Division under then-FBI Director Mueller said, “It could have been the kind of interview they didn’t feel the need to create a “302” for if at the time, they didn’t feel it was an investigative interview.
He also contemplated that if the document exists, it wasn’t shared because it could be “completely classified.”
He also said, though, that “it’s not the way you would expect to see the FBI do business,” calling the lack of the original document “a very unusual situation.”
Mueller was appointed special counsel, but it did not come about until May 17, 2017. Flynn’s January 2017 interview took place before Mueller was appointed special counsel.
This all occurred one week after then FBI Director James Comey was fired.
Last week, Comey was asked how the FBI agents ended up at the White House to interview Flynn in the first place.
Comey’s response offered new details about the circumstances that brought about criticism of the bureau’s conduct.
Comey said in a panel discussion on TV, “I sent them.” and added that it was “something I probably wouldn’t have done or maybe gotten away with in a more…organized administration.”
Comey explained that the interview was arranged directly with Flynn. He acknowledged this was not standard procedure.
Comey described how things normally would work saying, “If the FBI wanted to send agents in to the White House itself to interview a senior official, you would work through the White House counsel, and there would be discussions and approvals of who would be there.”
He did decide to bypass those steps and said, “I thought, It’s early enough, let’s just send a couple guys over.”
Flynn’s sentencing hearing was previously delayed four times.