Ghost of J. Edgar Haunts Flynn Investigation
May 18, 2020
Former FBI special agent Coleen Rowley explains Bureau misdeeds in the Flynn
case.
By Coleen Rowley
Special to Consortium News
In this time of unprecedented political polarization, its disappointing but
not surprising to see the Justice Departments recent request to dismiss its
prosecution of retired General Michael Flynn causing yet another media
firestorm to swirl around Attorney General William Barr.
Obama Administration former officials, like the hyperventilating authors of
this New York Times op-ed, The Appalling Damage of Dropping the Michael
Flynn Case, go so far as to claim that dropping the case embeds into
official U.S. policy a shockingly extremist view of law enforcement as the
enemy of the American people.
In stark contrast, other former FBI agents, myself included, are appalled at
Bureau and other national security officials numerous suspicious
departures from standard FBI/Department of Justice policies that have
finally been brought to light, marking this most bizarre investigation aimed
at get(ting) Flynn to lie.
Flynn. (US Defense Dept.)
Flynn was asked to a friendly chat with the FBI on Jan. 24, 2017, for
which he was told he would not need a lawyer present. The interview was part
of the FBIs Russiagate investigation, a purported scandal that has now all
but totally collapsed.
The agents wanted to speak with him about his conversations with Sergey
Kislyak, the then Russian ambassador to the U.S., while Flynn was on the
Trump transition team as incoming national security advisor. Having already
read the transcripts of those intercepted conversations there was nothing
the agents could learn from Flynn.
According to FBI administrative notes released earlier this month, an
official identified in the press as Bill Priestap, then assistant director
of the FBIs Counterintelligence Division, asked whether the only aim of the
upcoming interview with Flynn was to get him to lie about his conversations
with Kislyak. Our goal is to determine if Mike Flynn is going to tell the
truth about his relationship with Russians, said Priestap in a hand-written
note. But Priestap was having second thoughts.
I agreed yesterday that we shouldnt show Flynn [REDACTED] if he didnt
admit, he wrote, the redaction presumably meaning the transcript of Flynns
calls with Kislyak. I thought about it last night, and I believe we should
rethink this. What is our goal? Truth/admission or to get him to lie, so we
can prosecute him or get him fired?
Protect our institution by not playing
games.
Flynn was indeed formally charged with lying to an FBI agent and on Dec. 1,
2017 pled guilty after Russiagate Special Counsel Robert Mueller reportedly
threatened to prosecute his son. Flynn was fired by Donald Trump after Flynn
lied to the vice president about the conversations with Kislyak.
Kislyak. (Flickr)
In those conversations, Flynn asked that the Russians not retaliate for the
Obama administration sanctions on Moscow imposed for the now debunked
Russiagate allegations. Russia eventually decided not to retaliate. Flynn
also asked on behalf of Israel that the Russians veto a UN Security Council
resolution condemning illegal Israeli West Bank settlements, which Obama was
planning to abstain on. Russia refused this request.
Upon release of the FBI documents this month, Flynn sought to undo his
guilty plea and last week the Justice Department dropped the case. The
judge, however, has not yet agreed and has asked for expert opinion.
Law Rarely Used
Many former FBI agents will probably recall being instructed in FBI training
school (as I was) that Title 18 US Code 1001 (lying to an FBI agent) is
mainly to caution a suspect not to lie, in order to get him or her to tell
the truth to further an investigation.
We were taught (and later learned by experience) that, for a lot of reasons,
violation of this provision of lying to the FBI would almost never be
prosecuted, especially if it was the sole crime committed. One reason for
this was, at least in my law enforcement experience, that many, if not most,
people who are embarrassed to be suspected of wrongdoing, do lie, or at
least partially fudge the truth during initial interviews, as its a natural
ego-defense.
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So getting someone to lie, if thats the goal (as admitted in the
released FBI administrative notes on the Flynn case), is actually very easy.
If the green light is now on to use T 18 USC 1001 law in this manner, the
skys the limit. The FBI could lock up the world. In one of the released
emails, FBI attorney Lisa Page shows how rare prosecution under 1001 is by
writing:
I have a question for you. Could the admonition re 1001 be given at the
beginning of the interview? Or does it have to come following a statement
which agents believe to be false? Does the policy speak to that? (I feel bad
that I dont know this but I dont remember ever having to do this! Plus
Ive only charged it once in the context of lying to a probation officer.)
Rewriting the 302
Fired FBI Agent Peter Strzok, a zealous Russiagater who took part in the
Flynn interview, and (his paramour) Page, appear in the Flynn case to have
run roughshod over basic FBI legal policy by heavily editing the 302 form
of the interview, as aptly detailed by retired supervisory agent Thomas
Baker and other FBI agents. While Strzok asked Flynn the questions, his
partner at the interview, Agent Joe Pientka, took the notes, which Strzok
and Page, who wasnt present, edited, according to released text messages
between them.
Peter Strzok during congressional hearing in July 2018.
The rules drilled into new agents are about the need to take verbatim notes,
to be timely in documenting an interview on the FD-302 form for use in
court, and to disallow edits by supervisors or attorneys who werent even
present at an interview. These policiesall flouted in the Flynn casewere
developed and designed to ensure accuracy during the Hoover era, long before
tape recording equipment existed.
302s Only
Hoovers FBI power was such that the Bureau could usually successfully
insist, under federal rules of evidence and trial discovery, that only the
final, polished FD-302 interview form would ever be handed over and made
public at a trial.
The FBI and DOJ would always fight tooth and nail against open file
discovery, claiming that other rough investigative and administrative
documents in a file were not relevant and could therefore be kept hidden
from the defense at trial.
It wasnt until a few years after Hoovers death that courts stopped FBI
agents from destroying their contemporaneous interview notes and made the
1A envelope preserved notes discoverable so that defense attorneys could
check to see how closely the content of an agents FD-302 transcription
conformed to his/her contemporaneous notes.
But the art of transcribing from rough notes in ones own words what a
suspect or defendant said does inherently allow even the most conscientious
investigators some leeway, enabling the final 302 court document to be not
as accurate as an actual recording of the interview.
In a conspiratorial ends justify the means situation that Strzok and Page
believed themselves to be operating in, or in the case of any hell-bent,
prosecution-focused, overzealous rogue agent(s), the old-fashioned FD-302
Hoover way is, and always was, susceptible to outright abuse.
(It may be appropriate to note that similar over-zealousness to benefit
trial prosecutors was long practiced in the FBI laboratory until a top FBI
agent-scientist and whistleblower blew the lid off related abuse that
allowed FBI managers to rewrite and strengthen scientific results obtained
by the agents who actually performed the forensic laboratory tests and
analysis.)
Hoover. (Flickr)
Anyway, thats why most other state and local law enforcement agencies in
the country went (and/or were forced to go) to tape recording of confessions
and other important interviews in the 1980s to 1990s. However the FBI
bureaucracy long resisted the move to recording devices.
Over the decades, as voice and video recording equipment became more and
more prevalent and easy to use, defense attorneys and even judges started to
hammer FBI agents about why they continued their old-fashioned reliance on
individual agents note-taking abilities and memories.
Nevertheless, for nearly 40 years FBI directors and special agents in charge
(SACs) would continue arguing about the difficulty of using modern
technology to record interrogations and interviews. They always contended
(at least in internal arguments, but never publicly admitted on a witness
stand) that allowing agents to testify and tell juries what a defendant said
could always be relied upon as more successful for the prosecution than
allowing a jury to hear a tape or video recording of exactly what a
defendant said.
It was well known and even proudly pointed out internally that in he
said-she said disputes, a jury would always tend to believe the FBI agent
over a defendant.
The Flynn 302 fiasco illustrates how FBI managers recognized what an
advantage the final written in your own words 302 is when its declared to
be the only relevant document (no administrative documents, early drafts,
etc. need ever be handed over in discovery) when juries will almost always
believe the FBI agent over a defendant. It is rare for adminstrative
documents to become public, as they have in the Flynn case.
Of course if Strzok and his fellow FBI agent had asked Flynn for his consent
to be tape recorded, Flynn would have undoubtedly quickly realized this was
not a friendly interview by agents attempting to actually gain
counter-intelligence about Russia.
Not Material
That brings up a whole nother problem with the Flynn case that again
harkens back to Hoover and his pre-Church Committee abuses.
Barr and (former FBI agent, now U.S. Attorney) Jeffrey Jensen concluded,
after reviewing the complete file, that Flynns lying to the FBI was not
material to a bonafide matter under FBI jurisdiction, but merely
predicated upon the entirely specious Russiagate counter-intelligence
investigation of Flynn that Strzok and Page deliberately kept open on a
technicality, even after the FBI ordered it closed because there was no
reasonable basis to believe Flynn had ever colluded with the Russian
government.
The Flynn case furnishes a sterling example of the post 9-11 war on terror
having demolished the wall that separates intelligence gathering from
criminal investigation.
Robert Mueller giving congressional testimony on July 24, 2019. (C-Span
screenshot)
While fraught with problems and contradictory DOJ guidance, the wall had
existed for a valid reason after Church Committee discovery of abuses under
Hoover et. al. who so easily used national security and
counter-intelligence as a pretext to surveil, investigate and use
COINTELPRO disrupt and dismantle activities to go after Americas national
leaders, allowing a way around 4th Amendment protections.
I and other former FBI agents believe the egregious plotting to railroad
Flynn and get him to lie, requires dismissal of these charges. A number of
additional significant problems with the Flynn investigation and prosecution
are enumerated by attorney and award-winning journalist Glenn Greenwald in
his excellent 1 ¾ hour-long detailed expose at The Intercept and by Scott
Ritter, who focuses on why innocent people plead guilty given plea
bargaining abuses in our justice system. Neither Greenwald, Ritter nor I
happen to be fans of Flynn or Trump. But wrong is wrong.
Its hardly extremist to realize that FBI and other law enforcement
officials have, over the years, made terrible mistakes, and in some cases,
engaged in outright wrongful conduct, sometimes in rogue operations and
other times more systemically.
I will venture to say that FBI entrapment type actions in manufacturing
crimes, as was practiced on Flynn, got its early start as a more normalized
standard procedure after 9-11 with Robert Muellers FBI gravitating to using
con-artist type informants to infiltrate Muslim communities in order to
identify, coerce and entrap the more emotionally vulnerable members into
committing acts that the FBI could take credit for as preventing
terrorism.
The FBI found it increasingly difficult to prevent real terrorism spurred by
successive administrations committing war crimes that killed so many foreign
civilians.
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Some FBI and other law enforcement wrongdoing has come to light, like the
systemic torture operations perpetrated by certain Chicago police officials;
the FBIs decades-long tolerance for employing murderous mobsters as their
top echelon informants; the Bureaus spying on and attempted blackmail of
Martin Luther King Jr. and other leaders, as well as law enforcements
racial profiling and wrongful shootings.
In all too rare instances, innocent people are exonerated. Rather than being
happy that this bit of justice is finally happening in the Flynn case,
however, Russiagate proponents and Democratic partisans seem especially
incensed since the always-flimsy charges of Flynns lying to the FBI was
about all Special Prosecutor Muellers probe could show for their nearly
two-year long, $32 million dollar massive effort.
We should pay heed to Scott Ritters admonition:
The Obama national security team abused its power by unmasking Flynns
identity, then leaked Flynns identity to the press, using this press
reporting to justify the continuance of a baseless counterintelligence
investigation in order to set a perjury trap intended to place Flynn in
legal jeopardy. This is not how American justice is supposed to be
dispensed, and the fact that Flynn had to undergo this ordeal should send a
shiver down every Americans spine, because if left unchecked, there but for
the grace of God go us all.