Byron York today. The things we don’t know — but dammit, suspect. Sordid.
THE BIG THING WE STILL DON’T KNOW ABOUT THE MICHAEL FLYNN CASE: It’s really pretty simple. Flynn pleaded guilty to lying to two FBI agents who interviewed him at the White House on January 24, 2017, four days into the Trump administration. In accordance with usual FBI practice, the interview was not recorded. The agents took notes and were supposed to return to the office to write up what was said. The writeup is an FBI form known as the FD-302. Bureau rules give agents five working days to finish the document.
If someone is going to be charged with lying to the FBI, it will be on the basis of what is in the 302. There’s no recording and no other witnesses in the room. If an interview subject claims not to have said something, the proof otherwise is the 302 and the agents’ word. So the 302 is obviously critical if the Justice Department chooses to charge someone for lying in an FBI interview.
That’s why it is important to know the tortured history of the Flynn 302. In the Flynn case, nothing worked as it should have. Nothing. It is believed that one of the two agents who interviewed Flynn, whose identity has, remarkably, never been publicly revealed but has been widely reported to be an agent named Joe Pientka, wrote a 302 shortly after the interview. That recollection, the freshest memory possible, is usually regarded as the most reliable version of what was said.
HERE IS THE AMAZING THING: Michael Flynn’s defense has never seen the original 302. Never. Flynn, under enormous pressure from Trump-Russia special counsel Robert Mueller, pleaded guilty to lying to the FBI without ever reading what Pientka originally wrote about the interview.
Instead, the FBI almost immediately began editing the 302. Pientka’s partner in the interview, Peter Strzok — remembered as the agent dismissed from the Mueller team for his anti-Trump texts with extramarital lover (and senior FBI official) Lisa Page — took the lead. On February 10 — after the FBI’s five working days limit — Strzok did what was apparently a major editing job on it, and he also incorporated edits suggested by Page, who had not been present at the interview. In a text message, Strzok said, “I was trying not to completely re-write the thing so as to save [REDACTED] voice.” It’s thought that the redacted name was Pientka’s. The finished document was dated February 14, 2017, which just happened to be the day after Flynn was fired by the White House.
But wait! There’s more! At the time all this was happening, top FBI officials did not think Flynn would be charged. Then-director James Comey told Congress exactly that in March 2017. The Flynn case, apparently, was put on the shelf. But then, in May, Trump-Russia special counsel Robert Mueller was appointed. The Flynn file came down off the shelf as Mueller’s team looked for a way to exert pressure on Flynn to spill whatever he knew about President Trump, especially if it fit some prosecutors’ preferred theories of collusion.
AND THEN — VOILA! CAME AN ALL-NEW 302. In December 2018, as part of Flynn’s sentencing, the public saw another document entirely. It was called the Flynn 302, but it was in fact a record of an interview of Strzok — not Flynn — conducted by another FBI official on July 19, 2017. Even after all the changes, it was hard to see the document as the basis of charges against Flynn.
“Throughout the interview, Flynn had a very ‘sure’ demeanor and did not give any indicators of deception,” the 302 read. “He did not parse his words or hesitate in any of his answers. He only hedged once, which they documented in the 302. Strzok and [Pientka] both had the impression at the time that Flynn was not lying or did not think he was lying.”
So now, is it any wonder that Republicans have had questions about the Flynn prosecution? The whole ugly affair appears to have come to nothing with the Justice Department’s move to drop the case against Flynn. But even if Judge Emmet Sullivan, as expected, dismisses the charges, there are still things — important things — the public needs to know about the case. Like, what, precisely, was said during that fateful interview at the White House on January 24, 2017?
If I had all night to parse all this, I would. But it’s late and I have promises to keep, one of them to prepare for a night’s sleep in this time of virus. So later . . .