The investigation was unfair from the start, but yes, it appears that he did lie.
At the outset, let’s get two things straight:
First, there is something deeply disturbing about the Obama administration’s decision to open a counterintelligence investigation on retired lieutenant general Michael Flynn while he was working on the Trump campaign — and, ultimately, about the Justice Department and the FBI’s decision to dispatch two agents to interview Flynn at the White House, in a highly irregular manner, on Flynn’s third day as national security advisor.
Second, Flynn nevertheless lied to the agents.
These two matters have been conflated. We need to sort them out.
It is an article of faith among ardent Trump supporters not merely that Flynn should not have been investigated, but that he is innocent of the false-statements charge to which he pled guilty.
This has become impossible to buy — and not just because, to believe Flynn told the agents the truth, you must believe that (a) he lied to the court when he pled guilty and (b) he is still lying to the court in his sentencing memo, in which he claims that sharp FBI practices hoodwinked him into lying.
To Whom It May Concern: If you have been hoodwinked into lying, that means you have lied.
So, what is the theory that Flynn did not lie?
At the instruction of the FBI’s then-director and then–deputy director, James Comey and Andrew McCabe, two senior agents were sent to the White House on January 24, 2017, to interview Flynn. The interviewing agents were then–deputy assistant director Peter Strzok and an agent the Justice Department has intriguingly refused to name (but whom reporter Sara Carter, based on anonymous sources, has identified as Joe Pientka).
Let’s not get diverted for now on the controversial tactics used to arrange the interview; let’s stick to the interview. You would like to think the question whether someone has lied is black-and-white. Alas, it is often gray because a lie, by definition, must be intentional. An inaccuracy caused by a misunderstanding or a failure of recollection is not an actionable false statement or material omission. As we know from our own lives, we are given a great deal of inaccurate information by people who are not trying to deceive us, and we relate things incorrectly ourselves sometimes, maybe because we don’t remember them correctly, or our perception of an event was faulty.
As a result, when a trained interrogator obtains information known to be inaccurate, he or she does not jump to the conclusion that the witness is lying. A determination must be made whether the inaccuracy is witting or unwitting. That’s a judgment call.
Flynn was charged in one count with four lies, all in late December 2016, when he was working on the Trump transition and was designated to be Trump’s national security advisor:
First, he denied requesting of Russian ambassador Sergey Kislyak that the Kremlin refrain from responding to the Obama administration’s imposition of sanctions by “escalating the situation” — i.e., by some retaliatory measure.
Second, he denied that Kislyak subsequently told him that Russia had chosen to moderate its response in deference to Flynn’s request.
Third, he denied asking Kislyak to delay or defeat a vote on a pending U.N. resolution condemning Israel.
Fourth, he denied that Kislyak had told him Russia was declining that request.
To hear Flynn apologists tell the story, Flynn spoke truthfully, Mueller decided to charge him with lying anyway, and Flynn pled guilty to something he didn’t do because the investigation was wrecking him financially and threatening to take his son down with him.
But that’s an oversimplification. There is no doubt that Flynn’s four denials were false. The FBI had recordings of Flynn’s communications with Kislyak. The things he denied were, in truth, said.
The question is whether Flynn intentionally provided false information, not whether he provided false information at all.
On that question, the interviewing agents initially judged that he did not lie to them. This conclusion is outlined in the House Intelligence Committee’s report on Russia’s interference in the 2016 election. Both Comey and McCabe testified to this effect. That is why Flynn was not charged with false statements even after he was fired by the president for misleading the vice president about his communications with Kislyak.
It was only after Mueller was appointed in May 2017 that the investigation of Flynn appears to have picked up steam and a false-statements plea was finally negotiated in late November.
There are many peculiarities about this. Pressing at the moment, for example, is the special counsel’s release yesterday of the FBI report (the “302” form) pertaining to Flynn’s interview. Media reports had said that even though Flynn was interviewed on January 24, 2017, the 302 documenting the interview was not completed until August 22, 2017, seven months later. Clearly, this raises the possibility that the interview report was drafted not when the agents formed their initial impressions, but months later when the special counsel was squeezing Flynn and there was a motive to make the interview appear more deceptive than it seemed at the time.
To my eye, the situation is even more disturbing than the press reporting suggests. It appears that there is no 302 of the Flynn interview. The 302 dated August 22, 2017, which Mueller submitted to the court, documents an interview of Peter Strzok, not of Flynn. It appears that this interview of Strzok took place on July 19, notes of the interview were drafted the next day (July 20), and the 302 was approved and entered into the FBI’s files on August 22. The question obviously arises: Where is the Flynn 302? FBI procedures would have called for a report within a few days of the interview. It is not that there wasn’t one for seven months. For now, it looks like none has been produced at all.
We will come back to this and other investigative irregularities in future posts, as we get more clarity.
For now, the question is: Did Flynn lie? The answer appears to be, yes, he did.
There are at least five reasons to draw this conclusion.
First, Flynn pled guilty in court. You can say the government was putting enormous pressure on him, but it is hard to believe a man like Flynn would plead guilty to lying unless he had lied. Note, moreover, that to argue that he did not lie to the agents necessarily means he lied to the judge when he pled guilty, and is continuing to lie to the judge in his sentencing memo (where, again, he admits lying but says he was pressured into doing so). That makes little sense to me.
Second, to reiterate, this is not a situation in which there is doubt about whether what Flynn said was false. He does not deny providing false information; the only issue is whether he did so deliberately. Flynn was a longtime intelligence pro who led the Defense Intelligence Agency. Could he get one or two things wrong? Maybe . . . but multiple inaccuracies about important communications with a rival foreign power? It is hard to believe that someone of Flynn’s high-level intelligence background could do that innocently. And how, then, could one argue both that this is possible and that Flynn was a good fit for national security advisor?
Third, Flynn’s defenders rely heavily on a red herring. They emphasize the congressional testimony from Comey and McCabe that the agents who interviewed Flynn believed he was not being deceptive. Even if this is so, however, what does that prove? If I lie to you but I do it convincingly enough that you believe me, that doesn’t mean I told the truth; it means you are wrong. Again, the question here is not accuracy; we know Flynn was inaccurate. The question is whether he intended to deceive. The best witness on the operation of Flynn’s mind is Flynn. The agents were making their best judgment based on his demeanor, but they are not mind-readers; Flynn, by contrast, knows what he was thinking.
Fourth, Flynn filed a sentencing memorandum in which he acknowledges that he lied but maintains that the FBI hoodwinked him into doing so. I don’t see how those who claim Flynn pled guilty to a non-crime under pressure can get around this. Flynn has plainly decided to challenge the basis of the plea (even though he is not seeking to withdraw the plea, which could blow up an agreement that avoided other charges). If that’s your position, and you didn’t lie, then you claim that you didn’t lie, not that you did lie but the FBI tricked you into it.
Finally, Flynn had a motive to lie. This brings us back to the Obama administration’s unjustifiable decision to investigate him. Obama’s Justice Department let it be known that a basis for its investigation was the preposterous Logan Act (a moribund, unconstitutional law that purports to prohibit private citizens from freelancing in foreign relations, and that has never been used to convict anyone in over 200 years on the books). Moreover, Obama officials leaked to the media that the “collusion” theory included the suspicion that Trump had cut a corrupt quid pro quo deal to drop Obama’s sanctions in return for Russia’s assistance to Trump’s campaign.
Flynn is not a lawyer. He may not have realized how far-fetched these bases for investigation were. He may also have believed — with justification — that the Obama Justice Department and the FBI were hot to make a case on him. He thus had a motive to lie about his substantive contacts with a foreign government (Logan Act), and in particular about whether he discussed sanctions (because he feared being accused of a corrupt quid pro quo arrangement by zealous prosecutors, even though he had not made one). And even if he were not concerned about being the target of prosecutors, it would have been politically damaging to the incoming Trump administration if he had conceded discussing sanctions with Kislyak. While such discussions were not illegal, there was at the time a media frenzy that drew a false (but nevertheless popular) equivalency between any discussion on the topic of sanctions and a corrupt Trump–Kremlin deal. The political explosiveness of the sanctions topic explains why Flynn would lie to Vice President Pence and other Trump officials — and those lies gave him additional motive to lie to the FBI in order to keep his story straight.
When people who are in a strong position to provide accurate information provide false information, under circumstances in which they have a motive to provide false information, they are usually lying.
None of this explains why General Flynn was under investigation. None of it explains why the FBI interviewed Flynn when it had recordings of his conversations with Kislyak and did not need him to explain them. That is why, as someone who is sympathetic to Flynn and strongly suspects the government trapped him, I have been open to the possibility that he was pressured into pleading guilty to something he did not do. But I do not see how that makes sense. The information Flynn gave was inaccurate, he told a U.S. court he lied, he had a motive to lie, and his current position is that he was duped into lying.
Sounds to me like he lied.