On Tuesday, lawyers for former National Security Advisor Michael Flynn filed a Memorandum in Aid of Sentencing with the District Court for the District of Columbia. They hoped to convince Judge Emmet Sullivan to follow the recommendations of the Office of Special Counsel (OSC) and restrict Flynn’s punishment to probation and community service when he issues his sentence on December 19th.
There are several interesting things about this document, but I am going to focus on just one of them. There is a description (self-serving, to be sure) of how Michael Flynn was initially interviewed by the FBI on January 24, 2017, and it conflicts with one of the Republicans’ recurring talking points about Flynn. I wrote about this most recently on December 5, but also a year earlier on December 4, 2017, three days after it became public knowledge that Flynn had become a cooperating witness.
The short version of this talking point, which has been most enthusiastically promulgated by Washington Examiner reporter Byron York, is that the agents who interviewed Flynn did not detect any signs of deception. James Comey and his then-deputy Andrew McCabe both testified to this before Congress, which York took to mean that the FBI did not initially believe that Flynn had lied to them. He used this “fact,” along with a frontal attack on the suggestion that Flynn may have violated the Logan Act (or should have been questioned or punished for it even if he did) to argue that Flynn had been wrongly pursued by Robert Mueller for his conversations about sanctions relief with Russian ambassador Sergey Kislyak during the presidential transition.
The Memorandum in Aid of Sentencing offers a better explanation of what actually happened, and it dovetails exactly with I wrote in both of my pieces on York. At 12:35pm on January 24, 2017, then-deputy director of the FBI Andrew McCabe called General Flynn in his West Wing office and told him that he needed to send over two agents to question him about his phone calls with Kislyak. He explained that Flynn could have legal representation present if he wanted, including the White House counsel, but that this would necessitate the FBI getting the Department of Justice involved. Flynn agreed to waive his right to representation in the interest of speeding up the process.
At 2:15pm, the two agents arrived at the White House and spoke to Flynn. Prior to their interview, they had agreed as a matter of strategy not to spook Flynn by reminding him of his rights (which they were not obligated to do). They had also agreed on what to do if Flynn lied to them.
When I was analyzing this meeting, I knew for certain that the FBI had recordings and transcripts of Flynn’s conversations with Kislyak. What I did not know for certain was whether the agents interviewing Flynn had been told the exact contents of those calls. I assumed they were armed with that information, but York’s whole argument was premised, at least implicitly, on the idea that the agents left the meeting thinking Flynn had been honest with them.
But in Flynn’s own plea for mercy before the court, we have confirmation that the FBI agents knew exactly what Flynn had said and that they chose as a strategy to repeat his own words back to him if he lied, which they presumably did. Their strategy also entailed refraining from confronting Flynn with the transcripts. Basically, if he chose to lie, their worst fears would be confirmed and they would then have to regroup.
Obviously, they could not have repeated Flynn’s own words back to him without producing the written transcript unless they had memorized the key phrases. They knew Flynn was lying the second he opened his mouth, and this was confirmed by James Comey during his December 7, 2018 testimony before the House Judiciary Committee. Below, you can see how Comey responded to Rep. Trey Gowdy of South Carolina when questioned on this point.
According to Comey, far from leaving the meeting with Flynn satisfied, the agents had concluded that he was “obviously lying.” Then, without mentioning Byron York directly, Comey characterized his theory as “the product of a garble[d]” interpretation of his prior testimony.
Now, this may seem like a minor dispute in the greater scheme of things, but York has been a key player in convincing a large percentage of this country that Flynn is a good man who was wrongly persecuted by the Deep State in an effort to wrong-foot the incoming Trump administration and disrupt their legitimate intent to thaw relations with Russia. As recently as December 4, 2018, Mr. York wrote the following in the Washington Examiner:
The FBI did not originally think Flynn lied. In March, 2017, then-FBI Director James Comey told the House Intelligence Committee that the two FBI agents who questioned Flynn “did not detect any deception” during the interview and “saw nothing that indicated to them that [Flynn] knew he lying to them,” according to the committee’s report on the investigation into the Trump-Russia affair. Comey said essentially the same thing to the Senate Judiciary Committee and, in the words of Chairman Chuck Grassley, “led us to believe … that the Justice Department was unlikely to prosecute [Flynn] for false statements made in the interview.”
FBI number two Andrew McCabe told the House the same thing. “The two people who interviewed [Flynn] didn’t think he was lying, [which] was not [a] great beginning of a false statement case,” McCabe told the Intelligence Committee.
Only later, after Comey was fired and Mueller began his investigation, was Flynn accused of lying. He ultimately pleaded guilty.
Just as I had attempted to do a year earlier, I put considerable effort behind trying to debunk the claims York made just last week. It is simply not true that the FBI “did not originally think Flynn lied.” York took a couple of comments out of context to implausibly suggest that the FBI was initially satisfied with Flynn’s responses. He then argued that the FBI only decided that Flynn had lied months later, after Mueller got involved.
McCabe told lawmakers FBI agents who interviewed Michael Flynn “didn’t think he was lying, [which] was not [a] great beginning of a false statement case.” https://t.co/8MlUSjxThn
— Byron York (@ByronYork) May 4, 2018
This never made any sense. The FBI gave the Department of Justice a “detailed readout” of what had happened in the interview with Flynn the very next day, on January 25th, 2017, and Deputy Attorney General Sally Yates called White House Counsel Don McGahn first thing in the morning on the 26th to tell him she had “a very sensitive matter” that could only be discussed face to face.
[Yates] explained to McGahn the reasons why the DOJ was informing the White House of this — Flynn’s conduct was “problematic in and of itself,” they believed [Vice-President Mike] Pence was entitled to know the information about Flynn he was spreading “wasn’t true,” and that the American people had been misled about Flynn’s actions.
Yates stressed that one of the reasons why the DOJ decided to notify McGahn was because the Russians were aware of Flynn’s conduct, including that Flynn had misled Pence and that she had not accused Pence of “knowingly providing false information to the American people.”
“This was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information,” Yates said during her testimony today. “And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians.”
Yates and the DOJ official presented all the information to McGahn so the White House could take action that they deemed appropriate.
Given that timeline of events, I don’t think Byron York ever truly believed the lies he was spreading, but those lies have been very effective. So, I am trying again to kill this zombie lie. The FBI never thought that Flynn was telling the truth. They always knew that he had lied.
Maybe Judge Emmet Sullivan will conclude that Flynn has compensated for lying to the FBI about a matter of national security and does not deserve any jail time. That is not what I would conclude.
As for York, he’s simply changed his attack to fit the new facts.
Michael Flynn lawyers reveal details of FBI interview. Bureau sprang it on him fast; McCabe discouraged Flynn from having lawyer present; agents specifically did not warn of false statement consequences; wanted to make sure Flynn was ‘relaxed.’ https://t.co/ljWspYSQa0
— Byron York (@ByronYork) December 12, 2018
He doesn’t apologize or correct the record. He just keeps going, like an evil Energizer Bunny.