The FBI leadership kept pushing ahead with the investigation of former Trump adviser Lt. Gen. Michael Flynn even though its agents had been coming back again and again with evidence that pointed to his innocence.
That’s the picture painted by documents uncovered by a review of the Flynn case ordered in January by Attorney General William Barr.
The latest discovery, 14 pages of material provided to Flynn’s lawyers on July 7, indicate that the FBI was looking to close the Flynn case in November 2016, but continued to investigate for no apparent reason.
Flynn, a former head of the Defense Intelligence Agency during the Obama administration and former national security adviser to President Donald Trump, pleaded guilty in December 2017 to lying to the FBI. In January, he moved to withdraw the plea and proclaimed his innocence.
While the Department of Justice (DOJ) dropped the case on May 7, the presiding district judge, Emmet Sullivan, has refused to accept the dismissal and insisted on further proceedings to inquire about the dismissal.
Flynn was originally targeted by the FBI in August 2016 because of alleged ties to Russia and to determine if he was acting as an unregistered surrogate for Moscow. The allegation was mostly based on the fact that Flynn had given a paid interview to the Russian state-sponsored RT television and attended its anniversary gala in Moscow in 2015. He said it was one of many speaking engagements arranged for him by a speakers bureau he contracted.
The FBI was “looking to close” Flynn’s case in November 2016 as it “had not seen things to point to initial issue,” according to Jan. 25, 2017, handwritten notes of Tashina Gauhar, then-deputy assistant attorney general in the DOJ’s National Security Division (NSD).
Then, in November and December 2016, the FBI recovered Flynn’s calls with Sergey Kislyak, then-Russian ambassador to the United States, Gauhar’s notes say (pdf).
The bureau made “requests to foreign partners” and “info came back -> legitimate,” the notes say, indicating that nobody saw anything untoward in Flynn’s calls.
Indeed, then-FBI Director James Comey said the calls “appear legit” when he briefed President Barack Obama and his vice president, Joe Biden, on Jan. 5, 2017, according to notes jotted down by then-FBI head of counterintelligence operations Peter Strzok.
It was Biden who brought up a possible Logan Act violation during that meeting, the notes indicate, while Obama told Comey “the right people” should be on the case.
The Logan Act—a potentially unconstitutional law that never has been successfully prosecuted—makes it illegal for citizens to negotiate with foreign officials without the consent of the White House.
It appears the FBI used that as grounds for keeping the case open, based on Flynn’s conversations with Kislyak. Strzok’s text messages show he scrambled to keep the case open on behalf of the FBI leadership, even as Flynn’s case agent had already drafted the closing document.
The DOJ, however, poured cold water on that rationale.
“George: No reasonable pros do Logan Act,” say Strzok’s Jan. 25, 2017, notes, meaning that George Toscas, then-deputy assistant attorney general in the NSD, informed the FBI that no reasonable prosecutor would charge a Logan Act violation.
These notes, just as those of Gauhar, memorialize a meeting with eight other DOJ and FBI officials a day after Strzok and FBI Supervisory Special Agent Joe Pientka interviewed Flynn in the White House.
According to Gauhar’s notes, Flynn described his calls with Kislyak inaccurately on some points during the questioning, but the agents “believe that F. believe that what he said was true.”
Flynn was “telling truth as he believed it,” she wrote down.
“These documents establish that on January 25, 2017—the day after the agents ambushed him at the White House—the agents and DOJ officials knew General Flynn’s statements were not material to any investigation, that he was ‘open and forthcoming’ with the agents, that he had no intent to deceive them, and that he believed he was fully truthful with them,” Flynn’s lead lawyer, former federal prosecutor Sidney Powell, said in a July 10 court filing (pdf).
“In short, there was no crime for many reasons. These documents were known to exist at the highest levels of the Justice Department and by Special Counsel, yet they were hidden from the defense for three years.”
Among the new documents is also a draft Jan. 30, 2017, internal memo saying the FBI “did not believe General Flynn was acting as an agent of Russia.”
For some reason, however, the investigation went on and the FBI was still relying on the Logan Act.
On March 30, 2017, then-acting Deputy Attorney General Dana Boente memorialized an apparent briefing on the Russia investigation. He wrote down that the investigators “do not view [Flynn] as source of collusion,” but marked other liability areas of Flynn’s as the Foreign Agents Registration Act (which is hardly ever prosecuted) as well as the Logan Act.
In August 2017, when then-Deputy Attorney General Rod Rosenstein outlined the scope of jurisdiction for former special counsel Robert Mueller, who took over the Russia probe, one of the areas was whether Flynn committed crimes in his calls with Kislyak, which appears to be a Logan Act reference.
In the end, Mueller didn’t charge Flynn with a Logan Act violation. The prosecutors said it didn’t even play a role in the plea negotiations.
Flynn told the court in January he only pleaded guilty because Mueller’s prosecutors threatened to indict his son. Internal emails of Flynn’s former lawyers say that the prosecutors made a secret side deal not to prosecute the son in exchange for the father’s cooperation.
Flynn’s case is now stuck in the District of Columbia appeals court, which ordered Flynn to respond by July 20 to a request for rehearing filed by Judge Sullivan after the appeals court’s 3-judge panel ordered him to accept the case dismissal last month.