Mueller makes the Flynn 302 public

Today, on the eve of Michael Flynn’s sentencing hearing, Judge Emmet Sullivan ordered Robert Mueller’s team to file publicly a redacted version of the interview notes (the “302”) that FBI Agent Joe Pientka prepared regarding the interview of Flynn that he and Peter Strzok conducted on January 24, 2017. Judge Sullivan stated, in relevant part:

[T]he court finds that the January 24, 2017 FD 302, which was drafted immediately after Mr. Flynn’s FBI interview, is relevant to Mr. Flynn’s sentencing. The court also finds that the government’s proposed redactions to that document are appropriate. As such, and in view of the strong public presumption in favor of public access to judicial records. . .the court FORTHWITH ORDERS the government to file its proposed redacted version of the January 24, 2017 FD 302 on the public docket.

Mueller’s team has complied. You can find the full FD 302, entered on February 15, 2017, here.

I’ll quote the portions that may relate to the false statements Flynn allegedly made during the interview. As I understand it, Mueller has cited four false statements:

First, Flynn denied asking Russian ambassador Sergey Kislyak to delay or defeat a vote on a pending U.N. resolution condemning Israel.

Second, he denied that Kislyak told him Russia was declining that request.

Third, Flynn denied requesting of Kislyak that the Kremlin refrain from responding to the Obama administration’s imposition of sanctions by “escalating the situation” — i.e., by some retaliatory measure.

Fourth, he denied that Kislyak subsequently told him that Russia had chosen to moderate its response in deference to Flynn’s request.

Here the portions of the 302, filed on February 15, that may relate to these matters:

The interviewing agents asked FLYNN if he recalled any conversations with KISLYAK about a United Nations vote surrounding the issue of Israeli settlements. FLYNN quickly responded, “Yes, good reminder.” On the 22nd of December, FLYNN called a litany of countries to include Israel, the UK, Senegal, Egypt, maybe France and maybe Russia/KISLYAK. Part of the reason for Flynn’s calls was to conduct an exercise
to see how fast the incoming administration could get someone on the line. . . .

The interviewing agents asked FLYNN if he made any request of KISLYAK to vote in a particular way or take any action. FLYNN stated he did not. FLYNN stated he did not believe his calls to the various countries would change anything. . .FLYNN stated his calls were about asking where countries would stand on a vote, not any requests of “hey, if you do this.”

The interviewing agents asked FLYNN if he made any comment to KISLYAK about voting in a certain manner, or slowing down the vote, or if KISLYAK described any Russian response to a request by FLYNN. FLYNN answered “No.” FLYNN stated the conversations were along the lines of where do you stand, and what’s your position. FLYNN heard through other channels that [REDACTED] did not like the vote, and believed that the [REDACTED] of their own accord delayed the vote a day. . . .

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. . .FLYNN noted that he was not aware of the then-upcoming actions as he did not have access to television news in the Dominican Republic [where he had been vacationing] and his government BlackBerry was not working.

The interviewing agents asked FLYNN if he recalled any conversations with KISLYAK in which the expulsions were discussed where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian reciprocal, or not to engage in a “tit-for-tat.” FLYNN responded, “Not really. I don’t remember. It wasn’t “don’t do anything.”. . . .

The interviewing agents asked FLYNN if he recalled any conversations with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, or chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration. FLYNN stated it was possible that he talked to KISLYAK on the issue, but if he did, he did not remember doing so. FLYNN stated he was attempting to start a good relationship with KISLYAK and move forward. . . FLYNN reflected and stated he did not think he would have had a conversation with KISLYAK about the matter, as he did not know the expulsions were coming. FLYNN stated he did not have a long drawn out conversation with KISLYAK where he would have asked him “don’t do something.”

As I read these notes, Flynn only denied the first two of the four propositions listed above that form the basis for the charge Flynn lied. On the other two propositions, Flynn just said, in effect, he didn’t recall saying the things in question to the Russian ambassador. On one of them, he acknowledge he might have said it.

As to the first two propositions, Flynn didn’t deny discussing the matters, but did deny making specific comments that apparently are on the recording of the conversation in question. It’s possible, however, that Flynn wasn’t lying — he simply didn’t remember correctly. It’s also possible that the notes don’t reflect exactly what Flynn told the FBI agents.

It should be noted that, as originally written, this 302 had the header “DRAFT DOCUMENT/DELIBERATIVE PROCESS.” A later version, identical but without the header, was re-signed and resubmitted on May 31, 2017.

In his transmittal letter, Mueller told Judge Sullivan that the header on the original version was an error. In other words, the original version was not a draft.

In any case, the two versions are identical in substance. Whether deliberations about the substance occurred after the original 302 was submitted on February 15, and if so who participated in the deliberations, we do not know.

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