Former FBI Director James Comey and his former deputy, Andrew McCabe, contradicted each other in their accounts to Congress about why they wanted to question Michael Flynn, then-national security adviser to President Donald Trump, in January 2017.
Their stories also diverged on whether the investigation was about to be closed at the end of December 2016.
The reason for the Flynn interview is key because he was accused of lying to FBI agents during the interview, pleaded guilty, then disavowed the plea. The Department of Justice (DOJ) recently dropped the prosecution, saying the FBI interview wasn’t based on a properly predicated investigation to begin with, and “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.”
Flynn, the former head of the Defense Intelligence Agency, was investigated by the FBI starting in August 2016 as part of a broader probe into unsubstantiated allegations that the Trump campaign was colluding with Russia to sway the 2016 presidential election.
After four months, the counterintelligence inquiry into Flynn, a retired Army lieutenant general, produced nothing.
“I think I had authorized it to be closed at the … end of December, beginning of January,” Comey told the House Permanent Select Committee on Intelligence on March 2, 2017 (pdf).
On Jan. 4, William Barnett, one of the agents managing the Flynn case, drafted a document to close the case, saying no “derogatory” information on Flynn was established, there were no more investigative leads to follow, and Flynn was no longer a “viable candidate” for the Russia probe, dubbed Crossfire Hurricane (pdf).
That afternoon, then-head of FBI counterintelligence operations Peter Strzok reached out to the Flynn case manager, urging him to keep the case open.
Comey said the case was kept open after the FBI obtained transcripts of calls Flynn had in December 2016 with then-Russian Ambassador to the U.S. Sergey Kislyak. According to the DOJ, Flynn asked during one of the calls for Russia to not further escalate the situation after outgoing President Barack Obama imposed new sanctions on Russia.
“We kept it open once we became aware of these communications,” Comey said. “There were additional steps the investigators wanted to consider.”
McCabe offered a different version of events, when asked about it by then-Rep. Trey Gowdy (R-S.C.) during an interview with the House intelligence committee on Dec. 19, 2017.
“Director Comey said the Bureau was on the verge of closing the matter at the end of December 2016. Do you agree or disagree with,” Gowdy asked, before McCabe jumped in:
“I think that, to the best of my recollection, our assessment by the kind of middle of December was that we really had not substantiated anything particularly significant against General Flynn.”
“So would it be fair to say the Bureau was contemplating closing the investigation?” Gowdy asked.
“I don’t think a closure would have been soon. But we were keeping a close eye on what kind of progress were we making and I think our assessment at that time was we weren’t making a lot of progress,” McCabe answered.
“Did you have plans to interview him before you closed the matter?” Gowdy asked.
“I wouldn’t characterize it as plans. That would be kind of the normal way to do that, but we weren’t in the planning—the closing planning phase,” McCabe said.
Comey said that the reason why the bureau decided to interview Flynn was because he told then-Vice President-elect Mike Pence something that wasn’t true—that sanctions weren’t discussed during the Kislyak calls. Pence then said so in a televised interview on Jan. 15.
“For some reason, [Flynn] hasn’t been candid with the Vice President about this,” Comey said. “My judgment was we could not close the investigation of Mr. Flynn without asking him what is the deal here. That was the purpose.”
Again, McCabe told a different story.
“Why did the Bureau interview General Flynn when they did? What was the reasoning for the interview?” Gowdy asked.
“Because the—I’m trying to reassemble this chronology in my mind, but to the best of my recollection, we interviewed General Flynn at that time because of the existence of the—of his conversation, the record of his conversation with Ambassador Kislyak had become widely known through press reporting,” McCabe said.
“And at that point, there was really—there was no—that part of the investigation had become so widely known there was no—there was no reason to continue, kind of, in a covert investigative posture and so we wanted to sit down with General and understand, kind of, what his thoughts on that conversation were.”
Gowdy continued, “Was he interviewed because the Vice President relied upon information from him in a national interview?”
“No. I don’t remember that being a motivating factor behind the interview,” McCabe said.
“So he would have been interviewed even separate and apart from the fact that former Acting Attorney General [Sally] Yates believe that he had misled the Vice President, and that needed to be addressed?” Gowdy asked.
“He would have been interviewed either way,” McCabe replied.
There are problems with both McCabe’s and Comey’s versions of events.
The McCabe Version
McCabe was wrong about the closing of the investigation. Strzok’s texts clearly indicate that the case was about to close on Jan. 4, 2017.
It was “serendipitously good” the case wasn’t closed yet when Strzok reached out that day to the Flynn case manager, Strzok said in a text exchange with Lisa Page, McCabe’s then-special counsel and with whom he was having an extramarital affair.
“That’s amazing that he [Flynn] is still open. Good, I guess,” Page said in her reply.
“Yeah, our utter incompetence actually helps us. 20% of the time, I’m guessing,” Strzok said.
But if McCabe was right that the Flynn interview was because of the Kislyak calls alone, that raises the question of what exactly it was about the calls that the bureau sought to investigate.
The Flynn–Kislyak calls “were entirely appropriate on their face” and “did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation,” the DOJ stated in its recent motion to dismiss the charge against Flynn. “Such calls are not uncommon when incumbent public officials preparing for their oncoming duties seek to begin and build relationships with soon-to-be counterparts.”
The FBI brought up the Logan Act, a 1799 law that prohibits private citizens from conducting diplomacy with countries the United States is in a dispute with. But no one has ever been convicted for breaking the law and it hasn’t been used for more than 150 years.
Mary McCord, then-head of the DOJ’s National Security Division (NSD), said she wasn’t thinking about a criminal investigation into Flynn at the time, according to a report from her July 17, 2017, interview with the FBI and the special counsel office.
“It seemed logical to her that there may be some communications between an incoming administration and their foreign partners, so the Logan Act seemed like a stretch to her,” the report said.
The Comey Version
Comey’s take that the Flynn interview was to elucidate his alleged lack of candor with Pence rests on the assumption that the FBI deemed it relevant to its investigation of Flynn. But the bureau’s statements and behavior cut against that assumption.
Yates voiced the idea that Flynn was “compromised” because the Russians would know that what Pence said wasn’t true.
But the evidence indicates the bureau wasn’t on board with the idea.
While Comey said it was “possible” that Pence’s denial made Flynn blackmailable, he acknowledged that it “struck” him “as a bit of a reach.”
Indeed, the term “compromised” wouldn’t quite apply in this instance, according to Marc Ruskin, a 27-year FBI veteran and Epoch Times contributor.
“For someone to be compromised, the individuals who would be utilizing information to manipulate him would have to have some kind of information which could bring shame upon a person or destroy his reputation, something along the lines of accepting bribes or a sexual relationship,” he said.
The issue of Pence’s public denial could have been straightened out in a single conversation between Flynn and Pence, and was “hardly an earthshaking issue that would compromise somebody,” Ruskin said.
As the DOJ pointed out, the FBI didn’t seek to talk to anybody else on the Trump team, such as Pence, undermining the notion that the bureau was genuinely “deeply concerned about the disparities between what they knew had been said on the calls and the representations” by the Trump team.
Yates said she and others at the DOJ and in the intelligence community wanted to inform the Trump team of what was actually said in the Kislyak calls, according to an FBI report from an Aug. 15, 2017, interview with her.
Ruskin says that would have been the standard way to resolve such an issue, if the bureau was genuinely concerned about a compromise situation.
But Comey, who had control over the Kislyak transcripts, blocked it.
“There were additional steps the investigators wanted to consider, and if we were to give a heads-up to anybody at the White House, it might step on our ability to take those steps,” he said.
It isn’t clear, however, what those steps were.
“The FBI said at some point that notification [to the Trump team] would mess up an ongoing investigation, but Yates said it was not always clear what exactly the FBI was doing to investigate Flynn,” her interview report said.
‘What’s Our Goal?’
In the end, it seems, the interview cleared up nothing. The interviewing agents, Strzok and Supervisory Special Agent Joe Pientka, were instructed not to show Flynn the call transcripts and only give him a single nudge using some words from the transcripts if he said something that didn’t match the records.
This approach was criticized by then-FBI head of counterintelligence Bill Priestap.
“What’s our goal? Truth/Admission or to—get him to lie, so we can prosecute him or get him fired?” he wrote in notes dated Jan. 24, 2017, arguing the team should “rethink” its approach, confront Flynn with the transcripts, and “protect our institution by not playing games.”
The agents left the interview with the impression “that Flynn was not lying or did not think he was lying,” according to an FBI report from a July 19, 2017, interview with Strzok (pdf).
When Comey was asked if Flynn lied, he said: “I don’t know. I think there is an argument to be made that he lied. It is a close one.”
As the DOJ noted, “a close” argument isn’t good enough in a criminal court, where proof of guilt beyond a reasonable doubt is necessary.
Still, the FBI didn’t want to interview Flynn again, according to Yates, who “recalled them being pretty emphatic about it,” the report from her interview said.
What’s more, shortly after the interview, Comey was suddenly supportive of informing the White House about Flynn’s predicament, according to Yates, who told the White House counsel on Dec. 26, 2017.
Flynn resigned two weeks later, acknowledging that he couldn’t “be certain that the topic [of sanctions] never came up” in the Kislyak calls.
With the Pence situation cleared up, it seemed there was nothing more to do with the Flynn probe.
Comey, however, said in the March 2, 2017, testimony that the investigation was “obviously” still ongoing and “criminal in nature.”
McCabe said that “even following the interview on the 24th, we had a lot of work left to do in that investigation.”
By mid-February, the status of the probe wouldn’t have “changed materially” in his belief, he said.
“Like we were pursuing phone records and toll records at that time,” he said. “There were all kinds of really very basic foundational investigative activity that had to take place and we were committed to getting that done.”
It’s unclear what the point of the investigation was.
Comey said (in March) the bureau wasn’t investigating any possible Logan Act violation by Flynn and wouldn’t do so unless the DOJ directed it.
Flynn was later threatened with prosecution for allegedly making false statements in foreign lobbying registration for his already defunct consultancy firm. But at the time of Comey’s House testimony, Flynn’s registration papers weren’t yet filed.