Flynn says new FBI notes show misconduct led to criminal charge

Erik Larson and David Yaffe-Bellany

Former National Security Advisor Michael Flynn says new evidence shows the Federal Bureau of Investigation agents who interviewed him in 2017 didn’t think he was lying, but helped cook up a criminal case against him anyway.

The U.S. Justice Department this week handed over 14 new pages of documents that show misconduct by prosecutors who suppressed evidence that would have helped him, Flynn’s lawyer, Sidney Powell, said in a filing Friday with the U.S. Court of Appeals in Washington.

In this Dec. 1, 2017, file photo, former President Donald Trump national security adviser Michael Flynn leaves federal court in Washington.

“These documents establish that on January 25, 2017 – the day after the agents ambushed him at the White House – the agents and DOJ officials knew General Flynn’s statements were not material to any investigation, that he was open and forthcoming’ with the agents, that he had no intent to deceive them, and that he believed he was fully truthful with them,” according to the filing.

Flynn pleaded guilty to lying to two FBI agents about his phone calls with Russia’s ambassador to the U.S. in the early days of the Russia probe. Even so, he appeared to overcome the case in May when the Justice Department filed a surprise motion to dismiss, citing FBI failures and arguing that Flynn’s lies to the two agents weren’t “material” to the investigation.

But U.S. District Judge Emmet Sullivan, who was handling the criminal case in Washington, has refused to rubber stamp the government’s dismissal request. Sullivan said he has a right to decide for himself if it’s a masked attempt to help a staunch ally of President Donald Trump.

Pending Appeal

Flynn took the fight to the appeals court, where Sullivan lost on June 24 before a three-judge panel. On Friday, the appeals court placed a temporary hold on its order, pending a decision on the judge’s request for the so-called en banc rehearing by a larger panel. The appeals court gave Flynn 10 days to respond to Sullivan’s request.

The Justice Department did not immediately respond to a request for comment.

Flynn’s filing on Friday to the appeals court expands on arguments that his lawyer has made before, accusing Obama administration officials of trying to take down a key ally of Trump, who picked Flynn as his first national security advisor.

The filing says FBI memos from early 2017 show the interviewers didn’t believe Flynn was an agent of Russia – the key question they had when they started investigating him. The documents also purportedly show that the agents who interviewed Flynn after getting transcripts of his calls with the ambassador didn’t think he was trying to lie.

“The FBI determined that General Flynn believed what he was telling the agents was the truth,” the filing says.

Despite those findings, Flynn’s lawyer argues, former U.S. Deputy Attorney General Sally Yates and another former Justice Department official, Mary McCord, made two trips to the White House to get Flynn fired. The filing also says former FBI deputy director Andrew McCabe met with Vice President Mike Pence to convince him that Flynn had lied to him. Powell says the new evidence supporting Flynn was unearthed by Jeffrey Jensen, a U.S. Attorney in Missouri who is leading a review of the FBI’s handling of the Flynn case.

Evidence Overwhelming

Powell’s conclusions are a stark contrast to those of former federal judge John Gleeson, who was named by Sullivan as a “friend of the court” to argue against the government’s motion to dismiss. In a June brief, Gleeson said Flynn should be sentenced to prison because the evidence against him was overwhelming and that a jury would likely agree.

The law allows judges like Sullivan to protect “the integrity of their own proceedings from prosecutors who undertake corrupt politically motivated dismissals,” Gleeson wrote. “That is what has happened here.”

Flynn pleaded guilty multiple times to lying about conversations he’d had with then-Russian ambassador to the U.S. Sergey Kislyak. They discussed the Kremlin’s response to election interference-related sanctions imposed by President Barack Obama as well a United Nations vote concerning Israel – conduct that investigators feared would expose him to potential blackmail attempts by the Russians.

But the heart of the government’s dismissal argument is that Flynn’s lies were never relevant to the FBI’s investigation into possible coordination between the Trump campaign and the Russian government.

Gleeson disputed that “materiality” argument, saying Flynn was a close Trump advisor who had made unusual back-channel requests to a senior Russian official.

“When the FBI repeatedly asked Flynn about those communications, he chose to lie about them,” Gleeson wrote. “That is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see.”