The memo details the unusual circumstances of the FBI interview that led to the charge against Flynn, including that it was suggested to not have a lawyer present and that he wasn't instructed that lying to the FBI is a federal offense.
No Lawyer, No WarningThe charge against Flynn stems from a Jan. 24, 2017, FBI interview. That day, Flynn was in the White House, serving as a national security adviser to a newly inaugurated President Donald Trump. At 12:35 p.m., Flynn received a call on a secure phone from then-FBI Deputy Director Andrew McCabe. After a chat about a security training, McCabe said he “felt that we needed to have two of our agents sit down” with Flynn to discuss his communications with Russian representatives.
As part of Trump’s transition team, Flynn was tasked with contacting foreign dignitaries and laying the groundwork for the new administration. That included several calls with the Russian ambassador to the United States, Sergey Kislyak.
McCabe, who was, at the time, deeply involved in the FBI probe into allegations of collusion between the Trump team and Russia, suggested to Flynn that he not have a lawyer present for the interview.
“I explained that I thought the quickest way to get this done was to have a conversation between [Flynn] and the agents only,” McCabe wrote in a Jan. 24, 2017, memo cited by Flynn’s memo. “I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”
Flynn was “relaxed and jocular” with the agents, “unguarded” during the interview, and “clearly saw the FBI agents as allies,” according to a report, an FD-302 form, from the July interview with Strzok—nearly six months after the Flynn interview.
McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” the Strzok 302 reads.
The approach to the Flynn interview contrasts with the FBI’s questioning of former Trump aide George Papadopoulos just three days later. Agents not only advised Papadopoulos that lying to them “is a federal offense," but also reinterviewed him later, giving him a chance to correct the record. Papadopoulos eventually pleaded guilty to lying and was sentenced to two weeks in prison.
In response to the Flynn memo, the prosecutors argued Flynn, a veteran of military intelligence, "undoubtedly was aware ... that lying to the FBI carries serious consequences."
As for legal representation, when former Secretary of State Hillary Clinton was interviewed by the FBI in 2016 regarding her alleged mishandling of classified information, she brought along nine lawyers.
McCabe’s suggestion for Flynn to be alone was “indicative of duplicitous behavior,” Ruskin said.
“To essentially tell someone that they’re better off not having an attorney is a lie,” he said. “Obviously, it’s not in anybody’s interest to be interviewed by the FBI without an attorney present.”
Strzok and Pientka asked Flynn about his contacts with Kislyak. Flynn, former head of the Defense Intelligence Agency and one of the nation's foremost intelligence professionals, would have been likely to know that phone calls of the Russian envoy are monitored and that the agents could have the transcripts at hand.
Flynn Versus McCabeExcerpts from the 302 form indicate that Strzok and Pientka had an understanding that they wouldn’t let Flynn know if they realized he wasn’t forthright.
“Before the interview, FBI officials had decided that, if ‘Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, ... to try to refresh his recollection. If Flynn still would not confirm what he said, ... they would not confront him or talk him through it,’” Flynn’s memo quoted the form.
Flynn’s case stands in stark contrast to the situation of McCabe himself, who was fired from the FBI for repeatedly lying to internal investigators.
Unlike Flynn, McCabe was interviewed twice, both times under oath, was asked on two occasions whether he needed to clarify or change anything, and was never charged with making false official statements.
Stellar CareerFlynn grew up in a military family with eight siblings. He spent 33 years in the Army, including five years in combat in Grenada, Haiti, Iraq, and Afghanistan.
His lawyers submitted 50 letters of support from family, friends, and colleagues, many of whom are high-ranking active or retired military officers. The letters detailed multiple instances in which Flynn saved the lives of others, such as in 1983 during the U.S. invasion of Grenada, where he jumped off a 40-foot cliff and rescued two U.S. servicemen swept out to sea. Several of his military performance reviews, attached to the memo, show that his supervisors held him in high regard.
“The best, most capable Intelligence officer I have ever had the privilege to serve with,” wrote then-Brig. Gen. John Mulholland in Flynn’s 2007 performance review. “Mike Flynn is a rare combination of vision, experience, tactical and technical proficiency, character, and energy.”
At the time, Flynn headed intelligence at the Joint Special Operations Command.
Mulholland, himself a former special forces officer, went as far as calling Flynn “easily the best Intelligence professional of any service serving today.”