Three oddities in FBI handling of Flynn interview

Let’s get this part out of the way: Michael Flynn believes he lied to FBI agents during an interview, as well as to the vice president, and he pleaded guilty to criminal charges. He owns that; it’s on him.  

But while Washington and the media fixate on that aspect of the story, the recently released “302” of his interview with the FBI — the official form that agents use to summarize certain interviews — is so odd that it only helps to perpetuate perceptions that the FBI was targeting the Trump campaign, and then the Trump administration, for mostly political reasons. This aspect of the story needs more attention for the FBI’s sake and, more importantly, the nation’s sake.

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Having authored hundreds of 302s, and run many sensitive counterintelligence investigations and operations during my bureau career, I know an FBI oddity when one wanders by.

Oddity No. 1: Then-FBI Deputy Director Andrew McCabeAndrew George McCabeThe wisdom of Trump's lawyers, and the accountability that must follow Mueller's report Rosenstein still working at DOJ despite plans to leave in mid-March Graham says he'll probe Rosenstein's 25th Amendment remarks MORE personally contacted Flynn on the second full working day of the Trump administration and asked him to meet with FBI agents, a meeting that McCabe reportedly characterized as no big deal. That should have been Flynn’s first red flag. The FBI doesn’t do “no big deal” interviews.  

McCabe’s request apparently came at the direction of his boss, former FBI Director James ComeyJames Brien ComeyHarry Reid slams Comey for Russia election meddling If Mueller's report lacks indictments, collusion is a delusion Conservatives wage assault on Mueller report MORE, whose now-transparent camera lust led to the nugget last week that he wanted to exploit his perceived — and likely biased — view that the Trump administration would not be sophisticated enough to spot an end run around normal protocols and White House legal counsel.  

Was there anything legally wrong with Comey’s and McCabe’s duplicitous efforts to lull Flynn into a false sense of security, gain direct, solo access to him and not warn him about lying to agents? Nope. And that’s why his attorney’s probe of that angle went nowhere with the court.

But “legal” doesn’t mean it was proper. McCabe dispatched Peter Strzok and another agent to do the interview. Pause a moment: Comey, McCabe, Strzok. All three subsequently were fired for cause. Comey’s and Strzok’s strong anti-Trump biases, and McCabe’s conflicted links to the Clinton campaign, are well documented. It is fair to question their motivations for seeking out Flynn the way they did. Their actions were unprecedented for senior-most leadership of the FBI … yes, odd.   

And so Flynn, who now faces criminal sentencing for lying to FBI agents, was contacted by McCabe, who not only lied to FBI agents but did so, unlike Flynn, while under oath. McCabe remains uncharged. Words such as “odd” and “ironic” fail.

Oddity No. 2: The fact that a 302 was immediately generated is an oddity. A 302 normally is used only as a reporting mechanism in criminal cases when it is anticipated that the information obtained may be used in subsequent litigation and testimony. It usually is not used in counterintelligence investigations.

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Yet, the Flynn charging documents indicate Flynn was interviewed pursuant to an open FBI counterintelligence investigation — indeed, the one that Comey infamously and selectively made public in congressional testimony on March 20, 2017, was subsumed by the special counsel the following May, and now is popularly referred to as “the Russia collusion case.”

Information gathered in counterintelligence investigations, to include interview results, normally are reported via an internal FBI document called an electronic communication and not by 302, since counterintelligence investigations are classified and do not involve criminal process.  

It might be surmised that Strzok immediately recognized Flynn’s mendacity and possible criminal exposure for lying and so committed the interview to a 302. But this doesn’t align with Comey’s reported assertions to Congress that the interviewing agents did not believe Flynn intentionally lied to them. And yet, we have a 302 written the same day the interview occurred.  Something doesn’t seem right.

In addition, the original 302 is appended with an odd, unredacted header: “Draft Document/Deliberative Material.” Please understand that such a statement is not normally found on a 302. A 302 is not meant to be deliberative, i.e. subject to further discussion or interpretation. It is meant to be testimonial.  

When an agent writes and physically initials a 302 and enters it into the FBI’s case management system, he or she indicates readiness to swear to its accuracy. Words such as “draft” and “deliberation” imply that facts may change. If that’s the case, a new, separate 302 should be generated. The original remains unchanged.  

In Flynn’s case we have two 302s submitted to the court with the same information but different “dates of entry” into the FBI’s case management system. Odd, indeed. It simply gives rise to suspicions of manipulation.

Oddity No. 3: The interview results reflected on the 302 seem untethered from the Russia collusion counterintelligence investigation. The only way FBI agents can legitimately interview Flynn is through an authorized FBI investigation — in this case, the Russia collusion counterintelligence case examining “links” between the Russian government and the Trump campaign to interfere with the 2016 presidential campaign.  

But Flynn is never asked about those things. Instead, the FBI interviewers appear fixated on understanding what the Trump administration might do to counter Obama administration policies, specifically sanctions imposed on Russia by former President Obama after his party lost the election and an anti-Israel United Nations resolution that the Trump administration opposed. These are policy differences between duly elected presidential administrations, not of criminal or even counterintelligence interest.

Let’s be clear. It is an abuse of the FBI to leverage its considerable authority in a policy dispute between political parties. And yet it appears that is what Comey and McCabe dispatched Peter “We will stop him” Strzok to do. The question arises: Did this disgraced troika do so at the behest of the Obama administration, or in furtherance of their own now-exposed biases and conflicts?

The FBI’s line of questioning was enabled because, as the now-public 302 reveals, agents possessed a monitored conversation between Flynn and then-Russian Ambassador Sergey Kislyak. This massively sensitive intelligence technique has been officially exposed because of the necessities of a … lying-to-the-FBI case? Somewhere a value judgment was made. Let’s hope it wasn’t as cavalier as it looks.

The special counsel ultimately may report findings of clear, compelling indicators of legitimate counterintelligence concern. Let the chips fall where they may.  

But both Democrats and Republicans should have shared concerns about the possible manipulation of the FBI by the policy interests of one party over another. Congressional oversight has some work to do; the right questions need to be asked. Let’s hope, for the sake of the nation and restoration of trust in the noble men and women of the FBI, overseers do their job.

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center. He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public safety agencies on strategic mission technologies.