It’s called a 302. It’s a document created after FBI agents interview a subject detailing just what happened during the interview.
And some important details surrounding former National Security Advisor Michael Flynn’s 302 seem to point to the special counsel Robert Mueller’s probe destroying or withholding evidence in its Russian “collusion” investigation.
I’m sure many of you are familiar with the details of how Flynn ended up pleading guilty to making false statements to investigators. On Jan. 24, 2017 — just days after the inauguration — FBI agents came to the White House to talk to Flynn about his contacts with Russian officials. Flynn is expected to be sentenced today.
Without going into a full account of what happened there, what’s important is that when Flynn’s sentencing documents were released, the date on the 302 document was Aug. 22, 2017, according to a column posted by The Federalist last week by senior contributor Margot Cleveland. That’s nearly seven whole months after the interview happened.
This is important for two reasons, both having to do with testimony by former FBI Director James Comey. The first is that during the interview, according to the testimony by Comey while he was still with the FBI, the agents thought that they “saw nothing that led them to believe (Flynn was) lying.” The second is that Comey says that he’s actually seen the 302 or talked with someone who has.
That revelation came during testimony about the claim the agents thought Flynn wasn’t lying. When Comey appeared before Congress, South Carolina Rep. Trey Gowdy asked him where he got that impression.
“From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents,” Comey said, according to The Federalist.
“All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?” Gowdy asked.
“I don’t remember for sure. I think I may have done both, that is, read the 302 and then investigators directly,” Comey said. “I just don’t remember that.”
This is important since Comey was fired from his position as FBI director on May 9, 2017 — more than three months before the date on the Flynn 302.
So, is there another, phantom 302 that Comey was referring to? If so, where is it now? Has it been destroyed?
Judge Emmet G. Sullivan, the man adjudicating the Flynn case, would certainly like to know. He ordered the FBI to turn over all documents related to the case last week. One thing missing — at least in terms of publicly disclosed documents — was a January 302, according to Fox News.
In a piece published by The Daily Caller on Sunday, Sidney Powell — a former federal prosecutor and author of “Licensed to Lie: Exposing Corruption in the Department of Justice” — wrote that she believes Mueller’s investigation may be violating the law in regards to the details of Flynn’s interview.
As Powell notes, Brady v. Maryland, a 1963 Supreme Court case, “requires the prosecution, which holds all the cards in a criminal case, to give the defense all evidence favorable to the defendant, whether it impeaches a witness, mitigates punishment or shows his innocence. Indeed, the burden is on prosecutors to find anything in the possession of the government that is favorable to the defense.”
Even before Sullivan’s order, Powell notes, Senate Judiciary Committee Chairman Sen. Charles Grassley, an Iowa Republican, had been trying to get detailed information on the FBI’s interview of Flynn, which was conducted by Agents Joe Pientka and Peter Strzok. (You may have heard the latter’s name before.)
The 302, Powell writes, “existed — as Grassley well knows. It was written by Agent Pientka, who also took extensive handwritten notes, whose name is redacted from Mueller’s filing, and who seems to have disappeared. Where are the original 302, his notes, and where is Agent Pientka? Grassley has been trying to get access to all three for almost two years.”
Powell then nails the point home:
“Mueller’s filing confirms that Agent Pientka was assigned to take notes of the interview. Judge Sullivan’s order encompasses the production of those notes. Where are they?” she writes. “Were they destroyed despite Grassley’s longstanding request and Judge Sullivan’s original Brady order? The failure to produce them is another Brady violation that warrants the dismissal of the charges against Flynn and warrants holding Mueller and his team in contempt of court.”
Pientka may have disappeared from sight, but Strzok is also important to the search for the missing 302. In his text messages with fellow FBI employee Lisa Page, with whom he also enjoyed a much-publicized relationship of a personal nature, Strzok seems to reference the Flynn 302 in February of 2017 and indicates that then-FBI Deputy Director Andrew McCabehad seen it.
However, even Sullivan’s order might not be enough to unearth the original copy, should it have ever existed. In her piece at The Federalist, Cleveland notes that “this all assumes that the special counsel’s office still has copies of the initial 302s created, which might not be the case given that when Mueller’s ‘pitbull,’ Andrew Weissmann, led the Enron Task Force, his team, among other things, systematically destroyed draft 302s.”
Not a particularly good augury, no?
The existence (and possible destruction) of an earlier 302 of the Flynn interview is purely speculative at this point, mind you, but it’s speculation with a sound foundation in reality. Between Comey’s testimony, the date of the 302 filed with Flynn’s sentencing documents, Strzok’s text messages and the fact that Mueller seems entirely reluctant to turn over documents to the Senate Judiciary Committee — including Pientka’s notes of the Flynn interview, there’s plenty of reason to doubt the special counsel has been wholly on the level regarding the matter.
It’s time for the American people to get a complete explanation regarding FBI documents written in the immediate aftermath of Flynn’s interview — particularly when, according to a Grassley letter to the Justice Department and FBI written in May, Comey had told the Judiciary Committee that the agents “saw nothing that led them to believe (Flynn was) lying.”
If Mueller can’t get all of his ducks in a row on this very basic request, it raises serious questions about why he’s leading this investigation.