© Reuters/Jonathan ErnstGeneral Michael Flynn leaves US District Court
On Tuesday, attorneys for Michael Flynn filed a sentencing memorandum and letters of support for the former Army lieutenant general in federal court. The sentencing memorandum reveals for the first time concrete evidence that the FBI created multiple 302 interview summaries of Flynn's questioning by now-former FBI agent Peter Strzok and a second unnamed agent, reported to be FBI Special Agent Joe Pientka.

Further revelations may be forthcoming soon following an order entered late yesterday by presiding judge Emmet Sullivan, directing the special counsel's office to file with the court any 302s or memorandum relevant to Flynn's interview.

Flynn, who served briefly as President Donald Trump's national security advisor, pleaded guilty more than a year ago to making false statements to federal investigators during a January 24, 2017 interview. During that interview, Strzok and (presumably) Pientka questioned Flynn about a telephone conversation the Trump advisor had with Russian ambassador Sergey Kislyak.

While Flynn's sentencing memorandum methodically laid out the case for a low-level sentence of one-year probation, footnote 23 dropped a bomb, revealing that the agents' 302 summary of his interview was dated August 22, 2017. As others have already noted, the August 22, 2017 date is a "striking detail" because that puts the 302 report "nearly seven months after the Flynn interview." When added to facts already known, this revelation takes on a much greater significance.

First, text messages between Strzok and former FBI Attorney Lisa Page indicate that Strzok wrote his notes from the Flynn interview shortly after he questioned the national security advisor on January 24, 2017. Specifically, on February 14, 2017, Strzok texted Page, "Also, is Andy good with F 302?" Page responded, "Launch on f 302." Given Strzok's role in the questioning Flynn, the date (three weeks from the interview), the notation "F 302," and Page's position as special counsel to Andrew McCabe, it seems extremely likely that these text exchanges concerned a February 2017, 302 summary of the Flynn interview.

Additionally, now that we know from the sentencing memorandum that the special counsel's office has tendered a 302 interview summary dated August 22, 2017, we can deduce that an earlier 302 form existed from James Comey's Friday testimony before the House judiciary and oversight committees.

During the day-long questioning of the former FBI Director, Rep. Trey Gowdy asked Comey whether the agents who interviewed Flynn had indicated that Flynn did not intend to deceive them during the interview. After Comey replied "No," Gowdy pushed him, asking "Have you ever testified differently?" Comey again responded, "No."

But when asked whether he recalled being asked that question doing an earlier House hearing, Comey countered: "No. I recall - I don't remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing." (More on that testimony shortly.)

This exchange then followed:

Mr. Gowdy: "Who would you have gotten that from if you were not present for the interview?"

Mr. Comey: "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."

Mr. Gowdy: "All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?"

Mr. Comey: "I don't remember for sure. I think I may have done both, that is, read the 302 and then investigators directly. I just don't remember that."

President Trump fired Comey on May 9, 2017, so the 302 of the Flynn interview Comey read must have been written before then. Why then was a new 302 drafted on August 22, 2017? And by whom?

The timing of the re-write-shortly after then-FBI Agent Strzok was removed from Special Counsel Robert Mueller's team after his anti-Trump text messages came to light - raises the possibility that Mueller wanted to scrub the evidence of Strzok's taint. Having the second agent involved in questioning Flynn draft a new 302 summary would eliminate attacks premised on Strzok's bias against the president.

But was that the only reason the FBI issued a new 302? Were there any differences in the versions?

Congress has been trying to get to the bottom of this question for months upon months. In February, senators Charles Grassley and Lindsey Graham requested the DOJ inspector general, Michael Horowitz, conduct a comprehensive review of potential misconduct in the Russia investigation and specifically asked Horowitz to answer these questions about the Flynn interview and the 302s:
"Did the FBI agents document their interview with Lt. Gen. Flynn in one or more FD-302s? What were the FBI agents' conclusions about Lt. Gen. Flynn's truthfulness, as reflected in the FD-302s? Were the FD-302s ever edited? If so, by whom? At who's direction? How many drafts were there? Are there material differences between the final draft and the initial draft(s) or the agent's testimony about the interview?"
Horowitz has yet to answer these questions, but the special counsel's office now has federal judge Sullivan inquiring as well. Sullivan made history a decade ago when he ordered an independent investigation into "the systemic concealment of significant exculpatory evidence," he discovered during the government's prosecution of the now-deceased Ted Stevens, then the senior senator from Alaska. The DOJ's misconduct in the Stevens' case led Sullivan to enter a standing order in all criminal cases on his docket.

The most recent iteration of Sullivan's standing entered in the Flynn case required Mueller's office to produce "any evidence in its possession that is favorable to defendant and material either to defendant's guilt or punishment." The order further required the government to submit to the court any information "which is favorable to the defendant but which the government believes not to be material."

Flynn referenced some of these materials in his sentencing memorandum, specifically the FR-302 from August 22, 2017 and a memorandum apparently written by McCabe and dated January 24, 2017 - the same day as Flynn's interview. Now Sullivan wants to see those documents and ordered Mueller by Friday afternoon "to file on the docket FORTHWITH the cited Memorandum and FD-302." Sullivan further ordered "the government to file on the docket any 302s or memoranda relevant to [Flynn's interview.]"

What motivated Sullivan is unclear, but his experience in the Stevens' case was a likely trigger. In that case, the government withheld 302s, didn't include exculpatory statements in the 302s, and did not create a 302 for an interview that "didn't go very well," from the prosecution's standpoint. Sullivan likely wants to assure himself that the Flynn case isn't a copycat of the political targeting of Stevens from a decade ago.

Once the government dockets the evidence, Sullivan should be able to resolve two outstanding questions: First, what, if any, changes were made to the 302s? Second, did Strzok and his fellow FBI agent express a view on whether Flynn was lying?

Here, we return to Comey's testimony from Friday referenced above, that "the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing." Comey further explained, though, that his
"recollection was [Flynn] was - the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being - they're telling falsehoods. There's no doubt he was lying, but that those indicators weren't there."
The earlier version(s) of the 302s will either support or contradict Comey's testimony. Same with McCabe's January 24, 2017 memorandum. The latter will prove particularly interesting given the conflict between Comey's latest testimony and that of McCabe, who served as deputy director of the FBI at the time. In an executive session of the House Permanent Select Committee on Intelligence, McCabe acknowledged "the two people who interviewed [Flynn] didn't think he was lying, . . ."

Of course, 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.
About the Author:

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.