As I pointed out yesterday, Rep. Mark Meadows (R-NC) believes there is evidence to suggest that some of the Russia/Clinton investigation FBI interview reports (known as 302s) were “changed to either prosecute or not prosecute” certain individuals.
This raises many concerns and questions. Among them, what does this mean for former National Security Adviser Michael Flynn? Former FBI Director James Comey provided conflicting testimony and statements regarding whether or not the FBI agents who conducted the Flynn interview believed he was lying during the questioning.
So, what is an FBI 302 report?
I spoke with a former senior FBI official familiar with the case of former National Security Advisor Michael Flynn and asked what the process might have been like.
Sara: So, explain the process of putting together a 302 witness report…
“They wanted to get him. All he had to do was misremember one time that he talked to the guy. Then they’ve automatically brought him up on that one charge…”
Former Senior FBI Official: Typically, FBI procedures say that two agents are supposed to do the interview. The rationale behind it is so that you get two people, so there’s redundancy. For example, if one agent is unable to testify, there’s another person there who witnessed it. An interview of a subject usually comes at the very end of an investigation.
Sara: What happens next?
Former Senior FBI Official: …you may perform interviews of victims of crimes, not just the subject. So in the form of a bank robbery, you might have multiple 302s from the people who were there, the teller, somebody who saw the getaway car, or associates of the subject.
Sara: When you first go into an interview what is the process?
Former Senior FBI Official: You identify yourself. I’m “so and so,” a special agent with the Federal Bureau of Investigation. You state the day, time, and you state the location of where the interview occurs. Once you’ve got that out of the way, then you delve into the actual process of the interview. Now an interview can be wide-ranging and it can go all over the place. You can typically go [to an interview] with an outline of what you want to talk about. You go in there full of knowledge of the investigation and of what has transpired so far. And you typically try and get the person to talk about those things without revealing all of that information that you have, without showing your cards, without tipping your hand…
Sara: What are you looking for?
Former Senior FBI Official: As you’re performing that interview you get the person to talk about what you want them to talk about. Remember, the interview is strictly based on factual observations and statements that are made. There is no room for conjecture. There’s no room for opining and there is really no room for hypotheses to be put in [the 302 form]. It’s strictly observation. You can make personal observations about the person’s demeanor… If I suspected that somebody was drunk or under the influence of a substance during the interview, I could say something to the effect, “upon walking into the room to interview X, the interviewing agent noted that he smelled heavily of alcohol. X was slurring their words and…having trouble making coherent sentences.” I could not say that I believe X was completely drunk because I did not know that for a fact and that’s not something that I was able to verify while there.
Sara: What is the other agent doing?
Former Senior FBI Official: Typically one agent will be doing interviewing, another agent will be taking notes. Sometimes both agents will take notes. You usually only want to have one agent take notes because if it goes to court, both sets of notes could present a problem if they are not in agreement.
Sara: Regarding Flynn’s particular interview, what would the process be once it’s completed?
Former Senior FBI Official: Both agents would physically sign that initial copy. In the case of Flynn…you know both [FBI Special Agent Peter Strzok] and FBI Special Agent Joe Pientka both would digitally sign the 302. You know there’s a system and the FBI agents put in a card that identifies them. There’s a specific pin that is known only to you. You look at the documents. You say that everything looks good, then you click sign and…enter your pin. It’s digitally signed for you. Only they could do that. If somebody had their log-in information, which is highly unlikely, then, of course, they could do that. That’s really what a 302 is. It is a capture of facts and it is a capture of observations. It’s not a total report of an investigation. It’s not a summation of everything that’s happening. It’s just what transpired that snapshot in time for when they interview the person.
Sara: So, they didn’t have to show Mike Flynn the transcripts of his conversation with the Russian ambassador or anyone else?
Former Senior FBI Official: No not at all. There’s no obligation to doing that sometimes because of the sensitivities of what you collected and how you collected the information. Sometimes you show people some of the evidence; it’s basically called the strategic use of evidence. Sometimes you will show people information that you have collected, not only help jog their memory but to maybe guide them into making the right decision. It’s not an obligation but if you’re trying to get them to specifically admit to something that you have, you can do that.
Sara: But, now with all the new evidence on [Former Deputy Director] Andrew McCabe and Special Agent Peter Strzok, how does that affect the case? Would the agents have shared their findings with superiors?
Former Senior FBI Official: As you know, there are all sorts of lies that have been discovered on what has transpired with regard to McCabe…Comey possibly as well here, as well as other people that were involved in that sort of special investigation. McCabe was caught lying, Comey [was caught] lying, and others. For example, with Flynn’s 302s and notes, the agents would take those documents back to headquarters and then share what they observed with people. McCabe and Comey may be two of those people. The agents are going to talk about it and people are going to ask how the interview went. They are going to read that document and then ask for the opinions of the investigators, in this case, Strzok and Pientka. And that is where this idea that you know one agent or possibly both agents said, “look we don’t think that he was lying or maybe he wasn’t forthcoming.”
“It’s a dangerous charge and easy to use…”
Sara: I was told that McCabe was upset after hearing from the agents that they didn’t think he was lying…
Former Senior FBI Official: Yeah. I mean given what we’ve learned of McCabe so far and given what we know about McCabe’s previous actions of purposely trying to undermine the Trump administration, that’s what happened.
Sara: Was there a difference between the way the FBI handled Flynn’s case and the way the bureau handled McCabe’s case?
Former Senior FBI Official: Yes, Flynn was only interviewed once and was never under oath. McCabe was interviewed twice and was under oath during both instances. Further, Flynn was never told that he was being formally interviewed. McCabe was advised of the nature of his interviews on both occasions. Third, Flynn was never told what they suspected him of lying about and given the chance to explain. McCabe was asked, through the OPR process, on two occasions and through a formal document, whether he needed to clarify anything or change any information. He did not, which makes his lying intentional and with his full knowledge of his actions. And finally, Flynn has been charged with 18 USC 1001, making false official statements. McCabe has not.
Sara: Is it a conflict of interest now that the congressional committees and the IG have found that Strzok had such anti-Trump bias based on the fact that he was conducting the interview with Flynn and so involved in both investigations?
Former Senior FBI Official: It would, absolutely. Any judge would pick that apart in a court of law, any judge. He is tainted at that point. And you do have issues of taint in a court law… One of the things that you have issues with is [that] you have all this highly sensitive…top secret, tight reporting that occurs and you don’t want to have people who have been tainted by that material performing that interview. Now, you do it for a lot of reasons. One, you do it because sometimes you can’t give up that information. You want to get what’s called a clean team to do the interviews…people who haven’t had access to any of this highly sensitive information to perform the interview and you give them sort rough guidelines [of] what you want them to talk about and then hopefully they’ll get the person to admit to it.
Former Senior FBI Official: That is, you won’t have to divulge where they received this extremely sensitive information. When you get very sensitive information from other governments…things that are within the arsenal of the U.S. government that you don’t want coming out …in the court of law.
Sara: What about now? Now we know that even before the interview with Flynn, Strzok was so vehemently anti-Trump that he had every reason to want to pursue charges against him. Could Strzok have suggested later down the line that Flynn was lying? I mean, I would think that this information would taint the interview they had with Flynn…
Former Senior FBI Official: I don’t know. I don’t have the legal mind for understanding that there’s actually a legal precedent against that and I would say that lawyer should absolutely have a field day with him being able to say that it was a biased interview because of the bias that Strzok had felt towards the Trump administration. I would be interested to see what McCabe’s text messages are that sent him to the next point. But, you know it also looks like they were kind of smart enough to do a lot of in-person meetings in Andy’s office and not put anything into texts. I think McCabe has been pretty shrewd in handling all communications and letting, you know, [Former FBI Attorney Lisa] Page be a conduit for it. Regardless of that, Flynn’s lawyer should absolutely have a field day with saying that…Flynn was a representative of the Trump administration and Strzok and McCabe had set their sights squarely on him as a member of the administration. They interviewed him and then they put this case together against him and presented those facts to the Special Counsel.
Sara: So, if they didn’t think he lied, how did they get him to admit guilt and accuse him of lying in the end?
Former Senior FBI Official: It could be anything during the questioning that doesn’t exactly line up. They would question Flynn on the number of times he had contact with a Russian representative. They could have said, “Mr. Flynn how many times have you spoken with the Russian officials?” In good conscience, he may have said, “to the best of my recollection it was four to five times that I spoke with him.” Or, ” You know X amount of time.” That answer got that captured in the 302 document. The agents can go back and say, “we have technical collection says that he spoke with the Russians six or seven times.” And so, what you have is, you have Flynn saying “I suppose x amount of times” and then the government knowing he spoke this amount time. From a small inaccurate recollection, you have your a 18 USC 1001 charge, providing false information to federal agents. Now, it’s pretty damn flimsy. And I think if it were taken to court… it would have a hard time making it stand upright.
Sara: What do you know about the Flynn interview?
Former Senior FBI Official: From what I understand, Flynn was very forthcoming about the things that they really didn’t even ask him about or about things that…there’s no way he could have suspected that they knew information about. For example, other meetings that he had, or about people with whom he met and was very forthcoming about that. Even though he was very forthcoming about 99 percent of things that happened, if he misremembered, or if he was exhausted because the guy probably had about four hours of sleep a night during that time, it didn’t matter in the end. They wanted to get him. All he had to do was misremember one time that he talked to the guy. Then they could automatically brought him up on that one charge.
Sara: This seems like an easy way to entrap someone or get them on a charge that really is weak…
Former Senior FBI Official: Like I said, it’s a long tried and true technique that the FBI uses in investigations where they don’t have the very concrete charges to stick to somebody and they want to nail them. He got the charge that is usually filed against friends and families of suspects when you’re trying to break the suspect. And I gotta be honest with you, there have probably been times where the FBI has really overreached and might have overstepped the boundaries in using that 1001 charge. It’s a dangerous charge and easy to use.
Sara: So, if Flynn didn’t lie, why did he plead guilty to the charge?
Former Senior FBI Official: From what I understand is that the McCabe/Strzok team basically tarnished his name overnight and then they hold out until… he’s really he’s at his wit’s end. Flynn’s financially in a hole. He’s already…sold his house. He’s completely destitute. The bureau starts going after his family and they say, “Hey Mike Flynn, we’re going to go after your family.” Maybe [there’s] something they think they can get on his son or anyone close to him. Flynn is a true patriot and stand-up guy. So he takes the 1001 charge to get the Special Counsel off his back. The FBI and Special Counsel clap their hands and pat themselves on the back and then there it is. That’s how it all happens.
Sara: I would think there is some legal precedent for something like this; some kind of grounds just based on the fact that Strzok and McCabe appear to be so biased against Trump…
Former Senior FBI Official:…here’s the legal definition of Giglio information or material: it refers to material tending to impeach the character or testimony of the prosecution witness in a criminal trial. I’d say there’s something here based on all the evidence that’s already come forward.