The federal judge who will issue a sentence against Michael Flynn next week wants to review FBI documents related to a fateful White House interview that the retired lieutenant general gave to two FBI agents just days into his tenure as President Donald Trump’s national security adviser.
District Court Judge Emmet G. Sullivan on Wednesday ordered Flynn’s lawyers to hand over two documents: a memo that then-FBI Deputy Director Andrew McCabe wrote after speaking with Flynn ahead his Jan. 24, 2017 interview with two FBI agents and the FBI summary of notes taken during that same interview.
That summary, known as an FD-302, was compiled on Aug. 22, 2017 by the two FBI agents who interviewed Flynn. It is unclear why the summary was put together seven months after the Flynn interview.
Flynn pleaded guilty on Dec. 1, 2017 to lying to the FBI agents regarding his conversations during the presidential transition period with Russian Ambassador Sergey Kislyak.
Sullivan also ordered the special counsel to hand over any other memos or interview notes relevant to Flynn’s interview.
The judge set a Friday deadline to turn over the documents. He will decide on Flynn’s sentence next Monday.
Sullivan’s interest in the documents appears to have been spurred by claims that Flynn’s lawyers made in a court filing submitted Tuesday night.
Pointing to the McCabe memo, they noted that McCabe nudged Flynn toward meeting with the two FBI agents without an attorney present. He wrote that he told Flynn that a two-on-one meeting would be the “quickest” option.
Flynn agreed and said he did not need to involve White House lawyers.
McCabe also wrote in the memo that he and other FBI officials decided before the meeting that Flynn would not be warned ahead of the interview about the penalties of lying to the agents. McCabe noted that “they wanted Flynn to be relaxed” and “were concerned that giving the warnings might adversely affect the rapport.”
Flynn’s lawyers said in Tuesday’s filing that he accepts responsibility for lying to the agents, though it is clear from the document that Flynn takes issue with how his FBI interview came about.
The attorneys noted Flynn continued cooperating with the special counsel “even when circumstances later came to light that prompted extensive public debate about the investigation of General Flynn.”
That appeared to be a reference to the ethical and legal problems now facing McCabe and Peter Strzok, one of the two agents who interviewed Flynn. Both McCabe and Strzok have been fired from the FBI — McCabe for making false statements of his own about authorizing contacts with the media and Strzok for exchanging anti-Trump text messages with his mistress, former FBI lawyer Lisa Page.
It is unlikely that Sullivan’s review of the FBI documents will change his sentencing decision. Both the special counsel and Flynn’s legal team recommended that Flynn serve no jail time because of his extensive cooperation. But there is a chance that the documents could be filed in public view.
That prospect could be a long shot, however, as Sullivan said that he would allow Flynn’s team and the special counsel to file the documents under seal if they wanted.
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