WASHINGTON (Sinclair Broadcast Group) — When Michael Flynn's attorneys requested the former national security adviser receive no jail time for lying to federal agents, they asked the judge to consider the role of two former Federal Bureau of Investigation agents who have since been fired and referred for alleged misconduct.
The sentencing memo filed Tuesday in Flynn's defense, suggested that former FBI Deputy Director Andrew McCabe encouraged Flynn not to seek legal counsel before sitting down for an interview with two FBI agents. One of the agents conducting that interview was Peter Strzok, a deputy assistant director who was later removed from the special counsel's Russia investigation and fired from the FBI for alleged political bias.
Both McCabe and Strzok are frequent targets of President Donald Trump's attacks on the investigation of his 2016 presidential campaign and Russian election interference, which he claims is a politically motivated "witch hunt."
According to the Tuesday sentencing memo, Flynn was contacted by then-Deputy Director McCabe on Jan. 24, 2017, four days after President Trump's inauguration. At the time, the FBI had not publicly confirmed its counterintelligence investigation into the Trump campaign and Russian election interference.
McCabe called Flynn on a secure phone line in his West Wing office and told the newly appointed national security adviser that he wanted him to "sit down" with two agents to discuss his contact with Russian officials.
McCabe explained that the "quickest" way to conduct the interview would be for Flynn to meet with the two agents without legal representation. Involving anyone else, such as the White House counsel, would take longer and the Justice Department would have to get involved, McCabe wrote in a contemporaneous memo. Flynn agreed and met with the two agents about two hours later.
Strzok and another agent reported that Flynn was "relaxed and jocular" during the Jan. 24 interview. He even offered to give the agents "a little tour" of the West Wing. When questioning Flynn about his Russian contacts and other matters, the agents decided not to remind him that it is a crime to lie to the FBI. "[T]hey were concerned that giving the warnings might adversely affect the rapport," they stated.
One of the agents reported that Flynn was "unguarded" during the interview and "clearly saw the FBI agents as allies."
In that interview, Flynn lied about his contacts with Russian officials during the 2016 presidential campaign and his work on behalf of the Turkish government. Flynn pleaded guilty to the offense and has offered "substantial assistance" to Robert Mueller's special counsel investigation.
As a show of good faith, Flynn's lead attorney, Robert Kelner, noted the defendant continued to cooperate with the special counsel even after two of the FBI officials involved in the Jan. 24 interview "were themselves being investigated for misconduct."
Neither Flynn or his attorneys have explained why the retired three-star general lied to federal investigators but Flynn is reportedly willing to accept full responsibility for his actions. His sentencing date is scheduled for Dec. 18.
The newly reported information about McCabe and Strzok's role in Flynn's self-incriminating interview will make an already politically fraught investigation of the president and his associates even more complicated.
The involvement of McCabe and Strzok in the Flynn interview is "really problematic," explained Ray Batvinis, a historian and retired FBI special agent. "All it does is lend fuel to the fire. It does not help the institution and does not really help as far as the transparency of the investigation is concerned."
McCabe was forced out of office in March and given a criminal referral by the Justice Department inspector general for misleading investigators about his role in leaking sensitive information to the press.
Previous reporting suggested his dismissal was only related to leaks about the Hillary Clinton email investigation but recently published FBI documents show McCabe was also being investigated for leaking information about Michael Flynn shortly after the Jan. 24 interview.
A complaint filed with the FBI's Internal Investigations Section documented "a media leak involving a statement overheard in early February 2017... Specifically, the alleged comments were made by DD A.G. McCabe and pertained to General Michael T Flynn and the POTUS."
The investigation was apparently opened March 20, 2017, a few days after Flynn was fired from the White House for lying about his contact with Russians. The FBI documents do not specify the nature of the information McCabe leaked.
Strzok was reportedly responsible for initiating the FBI's July 2016 counterintelligence investigation of then-candidate Trump and Russian collusion. That investigation evolved into Robert Mueller's special counsel investigation in May 2017.
Strzok joined Mueller's team as a lead investigator but was removed in July 2017 after he was caught sending anti-Trump text messages to his mistress, former FBI lawyer Lisa Page, using his work phone. He was fired from the FBI earlier this year for alleged misconduct related to those text messages.
The revelations about McCabe and Strzok will also fuel President Trump and his supporters' arguments to discredit the special counsel investigation which has been narrowing in on the president in recent weeks. On Wednesday, Trump's former attorney Michael Cohen was sentenced to three years in prison after implicating the president in a campaign finance scandal.
On Capitol Hill, Trump ally Matt Gaetz, R-Fla., warned that the involvement of two top officials in the Trump-Russia investigation further erodes its credibility. "Where you have people demonstrating their bias and doing illegal things developing the evidence, you can't really believe in the reliability of that evidence," he told Sinclair Broadcast Group.
Democratic Sen. Richard Blumenthal of Connecticut, who has been working to protect Mueller, dismissed concerns about McCabe and Strzok as "marginal at most."
Beyond the political implications, the FBI's handling of Flynn was "way outside of the bureau's tradition," according to Thomas J. Baker, a law enforcement consultant and former FBI special agent.
Typically, field agents conduct interviews of potential suspects. Their work is reviewed through layers of supervisors before it reaches the desk of a someone overseeing an investigation, such as Strzok, who was the deputy assistant director of the FBI's counterintelligence division, or McCabe, the second highest official in the bureau.
"That is one of the fundamental problems in this investigation," Baker said. "This was a very closely held investigation in FBI headquarters and you had executives, who would be making the decision on where the investigation goes, actually doing the interviews."
Batvinis also noted the involvement of senior-level FBI officials in the interview was "highly unusual."
Flynn is reportedly not the first subject Peter Strzok interviewed. Only days before opening the July 2016 Trump-Russia counterintelligence investigation, Strzok traveled to London where he allegedly interviewed witnesses. It is unclear how many individuals Strzok interviewed for the FBI or special counsel investigations. In an 11-hour congressional deposition, Strzok refused to provide that information.
The political sensitivity of the investigation into a presidential campaign and possible coordination with a sanctioned foreign adversary led FBI leadership to involve only a small group of individuals.
According to a text messages Strzok sent to Lisa Page in the summer of 2016, there was an initial sense that the investigation should be protected from Obama-era Justice Department officials who would find the information "MUCH more tasty...to leak."
Within a few months, however, Strzok and Page were texting about a "media leak strategy" intended to damage President Trump and McCabe was under internal investigation for improperly disclosing sensitive information about Flynn and Trump to the press.
Other circumstances surrounding the Flynn interview were less unusual. Strzok's decision not to inform Flynn of the consequences of lying to the FBI is typical, Batvinis said, particularly given his reportedly "relaxed" and "unguarded" demeanor.
Flynn's attorneys complained that the FBI did warn Trump campaign associate George Papadopoulos and Dutch lawyer Alexander Van der Zwaan that they could face penalties for lying to investigators. However, the FBI is not legally obligated to do so. Both Papadopoulos and Van der Zwaan were convicted and sentenced to prison for lying to the special counsel.
It was also not out of the ordinary for McCabe and Flynn not to involve the White House counsel and Department of Justice, though in hindsight, Flynn may have benefited from legal representation. Flynn was accustomed to interacting with the FBI after years of work on national security, according to his lawyer.
Baker noted that for Flynn to sit down with agents and talk off the cuff as the president's national security adviser "is rather natural, understandable and was literally part of his job." Flynn would not have been aware he was the subject of the counterintelligence investigation. Given the unusual framework and circumstances of the interview, Baker suggested it was "unfair" to bring the charges against Flynn.
Flynn will face a federal judge in Washington next week for sentencing. Special Counsel Mueller recommended a minimal punishment for Flynn and no prison time. Mueller commended Flynn's cooperation with the government in three investigations and noted his honorable service record in the U.S. military.
Updated: This story has been updated to correct the name of law enforcement consultant and former FBI special agent Thomas J. Baker.