The Corner

Law & the Courts

Where Is the Flynn 302?

Michael Flynn outside a U.S. District Court in Washington, D.C., December 1, 2017. (Reuters photo: Jonathan Ernst)

Better late than never (I hope), my weekend column has posted on the website. It deals with the question whether General Michael Flynn actually lied to the FBI agents — including the now infamous Peter Strzok — when they interviewed him in the White House on his third day on the job as national security advisor. The question whether Flynn lied is a separate one from whether he should have been investigated, interviewed, and treated more fairly — it is a separate question from whether the interview was a perjury trap. (When you say something is a perjury trap, by the way, it is usually because someone has made false statements — no need to worry about the trap if the witness has been truthful.)

Now that Flynn and Special Counsel Mueller have filed their pre-sentencing memoranda, we have a full picture of each side’s position. I’ve given a lot of sunlight — including in discussing the matter with Rich on the most recent edition of The McCarthy Report podcast — to the argument made by Flynn’s camp that he is not really guilty of lying to the agents, that he pled guilty due to pressure from Mueller, including that his son might be prosecuted. It is only fair, as Flynn’s sentencing approaches next week, to consider the more likely scenario (the one of which I am now convinced): Yes, he was pressured . . . but he did in fact make intentional misstatements.

My purpose in this post is not to rehash the column. It is to highlight something I address in the middle: the missing FBI report of Flynn’s interview on January 24, 2017 — i.e., the Flynn 302. As I write in the column:

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.

As I add in the column, this deserves attention, and we’ll come back to it, as well as other investigative irregularities, as we get more clarity.

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