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New tension between Flynn and Mueller as Flynn’s sentencing approaches

Flynn’s lawyers implied he was railroaded. Mueller’s team says, not so.

Michael Flynn
Michael Flynn.
Mario Tama/Getty Images

Days before National Security Adviser Michael Flynn is due to be sentenced for making false statements to the FBI, new filings in the case reveal some tension between special counsel Robert Mueller and his cooperating witness.

Flynn’s filing, submitted Tuesday, contained details that seemed intended to imply some impropriety in how the FBI questioned him over his contacts with Russian Ambassador Sergey Kislyak. The filing mentioned that agents hadn’t warned Flynn it was a crime to lie to the FBI, and that the deputy FBI director suggested the questioning could be done more quickly if Flynn didn’t have a lawyer present.

But on Friday, Mueller’s team fired back — arguing that Flynn’s lies were premeditated and that he was now attempting to “minimize the seriousness” of his crime. The special counsel emphasized that in lying to the FBI, Flynn was sticking to a false story he had been telling others for two weeks.

“A sitting National Security Advisor, 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,” Mueller wrote.

Flynn pleaded guilty to making false statements to the FBI as part of a plea deal with Mueller last December. Since then, Mueller’s team has praised Flynn’s cooperation with their probe and said that a low sentence with no prison time would be appropriate for Flynn. But the latest filings reveal it’s not all roses between the special counsel and Flynn behind the scenes.

Some conservative media outlets have gone even further, suggesting that perhaps Flynn didn’t really lie to the FBI at all — that perhaps he “misremembered,” as the Wall Street Journal editorial page posited this week. But this doesn’t make sense considering the timeline of Flynn’s claims about his contacts with Kislyak. Flynn has also admitted in sworn testimony that he knowingly made those false statements.

The timeline of Flynn’s contacts with the Russian ambassador

In December 2016, after Trump had won the presidential election but before he was sworn in, he named Flynn his national security adviser-designate. Then that month, Flynn had several contacts with Kislyak, the Russian Ambassador.

The most curious of those contacts involved sanctions. President Obama had announced new sanctions on Russia in retaliation for the country’s interference with the 2016 election. After talking with other members of Trump’s transition team, Flynn contacted Kislyak and emphasized to him that the Russian government shouldn’t retaliate against the US.

President Putin soon announced that Russia in fact wouldn’t retaliate. Kislyak then called Flynn back and said the Russian government made this decision in response to Flynn’s request.

About two weeks later, on January 12, 2017, the Washington Post’s David Ignatius reported that Flynn and Kislyak had been in contact on the day of Obama’s sanctions announcement, raising the question of whether they had come to some sort of secret deal over sanctions. (Unsurprisingly, Kislyak was under surveillance from US intelligence services — and it appears his conversations with Flynn were recorded and transcribed by the government.)

But Trump’s team then put out a false story. Vice President-elect Mike Pence, incoming press secretary Sean Spicer, and incoming Chief of Staff Reince Priebus all said publicly that Flynn and Kislyak hadn’t discussed sanctions at all. They said this, Mueller says, because that’s what Flynn told them.

Importantly, all this happened before Trump was sworn in and the FBI asked to question Flynn. The upshot is that his false statements to the FBI weren’t a spur-of-the-moment thing — he was in fact repeating a false story he had put out earlier.

Also, Flynn put out this false story about his contacts with Kislyak only two weeks or so after they spoke. Unless he has some serious undisclosed memory problems, it simply isn’t plausible he’d forget talking to the Russian ambassador about a major and very important policy matter so quickly.

What happened when the FBI interviewed Flynn

The interview that would eventually be Flynn’s downfall occurred on January 24, 2017 — Flynn’s fourth full day as national security adviser.

When the FBI questioned him, Flynn repeated his false story about his contacts with Kislyak. He said he hadn’t urged Russia not to retaliate on sanctions, and claimed he didn’t remember Kislyak calling him back to say they didn’t retaliate in response to his request. He also denied lobbying Kislyak about a United Nations Security Council vote on Israeli settlements policy — another false statement.

Flynn doesn’t dispute any of this. He’s already admitted it in sworn testimony, as part of accepting his plea deal.

But in their sentencing memo this week, Flynn’s lawyers appeared to make certain innuendos about the FBI’s behavior in setting up and conducting the interview. They called these “additional facts” that they deemed “relevant to the Court’s consideration”:

  • Deputy FBI Director Andrew McCabe had called Flynn to tell him the FBI wanted to interview him about his Kislyak contacts — and had said that he preferred Flynn not bring in a lawyer because it would slow down the process. Flynn agreed.
  • Peter Strzok and another FBI agent then turned up to interview Flynn. Beforehand, they later wrote, they decided that they wouldn’t warn Flynn it was a crime to lie to the FBI.
  • Strzok and the other agent also decided they wouldn’t directly confront Flynn if he made false statements, but would instead try to refresh his recollection by using “the exact words Flynn said” during his calls with Kislyak.
  • One agent later said Flynn seemed “unguarded” during the interview, and that he appeared to see the agents as “allies.”

The implication was obvious: that Flynn was railroaded, his interview was unfair, and that the fix was in from McCabe and Strzok (both of whom have been the topic of frequent conservative attacks, and both of whom have since been fired from the FBI).

The Wall Street Journal editorial page soon wrote about “The Flynn Entrapment,” portraying him as a “tragic” target of Mueller. The publication went further, too, claiming it wasn’t very “believable” that “a highly decorated officer would lie to FBI officers he agreed to see without counsel.” Perhaps, the Journal claimed instead, Flynn simply “misremembered,” but that whatever happened, the FBI’s behavior “reeks of entrapment.”

But as laid out above, this hypothesis that Flynn “misremembered” makes no sense. He had started lying about his Kislyak contacts two weeks before talking to the FBI, and just two weeks after the Kislyak contacts themselves.

Mueller’s team made this point in their new filing, and argue that Flynn’s “decision to make false statements was voluntary and intentional.” They also emphasize that McCabe told Flynn exactly what he’d be questioned about before the FBI agents went over. Finally, they write:

A sitting National Security Advisor, 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. He does not need to be warned it is a crime to lie to federal agents to know the importance of telling them the truth. The defendant undoubtedly was aware, in light of his “many years” working with the FBI, that lying to the FBI carries serious consequences...

The defendant agreed to meet with the FBI agents, without counsel, and answer their questions. His obligation to provide truthful information came with that agreement; it did not turn on the presence of counsel.

Other conservative critics have mentioned that the FBI agents who interviewed Flynn did not originally come away with the impression that he had outright lied to them. Some have questioned whether Flynn in fact lied at all. Yes, they acknowledge, he admitted making false statements to the FBI as part of his plea. But they suggest perhaps Mueller strong-armed him into making that admission.

Indeed, a document submitted to the court, describing Strzok’s account of Flynn’s interview, says that he had a “sure” demeanor, that he “did not give any indicators of deception,” and that both agents had “the impression” that Flynn “was not lying or did not think he was lying.”

The document poses the question of how and why the government changed its mind — why Flynn’s denials initially seemed at least plausible to the agents who interviewed him, and what evidence convinced investigators otherwise. However, much of the rest of the document is redacted, so we don’t know what happened next.

In any case, Mueller’s team claims that the two agents were “misled by the defendant’s false denials” — much like Trump’s transition team members (Pence, Spicer, and Priebus) were. “Those misimpressions do not change the fact,” they write, that Flynn “was indeed lying, and knowingly made false statements to FBI agents in a national security investigation.” They also add the reminder that Flynn has already admitted making these false statements ”in sworn testimony” to the court.

Don’t forget about Flynn’s Turkish shadiness

Finally, in considering Flynn’s character and the question of whether it truly would have been so strange for this “highly decorated officer” to lie to the FBI (as the Journal claimed), we should keep in mind a separate bit of shadiness Flynn was involved in just months earlier.

During the 2016 campaign, while he was advising Donald Trump’s campaign, Flynn agreed to do propaganda work to benefit the government of Turkey. The contract was with a Dutch company called Inovo BV, but that company was founded by a Turkish business executive with close ties to Turkey’s government. Furthermore, “officials from the Republic of Turkey provided supervision and direction” over the project, Flynn admitted in his plea deal.

Flynn and his company were paid $530,000 for this work over three months. In other words, Flynn chose to accept half a million dollars to do work benefiting a foreign government while he was advising the Republican presidential nominee on foreign policy.

Then when Flynn eventually disclosed the work under the Foreign Agents Registration Act, he didn’t admit that Turkish government officials were involved in the project.

Somewhat amazingly, Flynn wrote an op-ed for the Hill praising the Turkish government extensively. The op-ed ran on Election Day, and initially contained no disclosure that Flynn was being paid for work to benefit the Turkish government, or that Inovo had reviewed a draft.

So the FBI interview wouldn’t have been the first time Flynn was deceptive about his contacts with a foreign government — suggesting that such deception may not have been that unusual for him after all.