U.S. District Judge Emmet G. Sullivan ordered Mueller’s team to hand over any “302s or memoranda” related to Flynn’s questioning by 3:00 p.m. ET Friday.
The 302 reports are summaries of FBI interviews. Usually written soon after the questioning, Flynn’s report was dated August 22, 2017–nearly seven months after his meeting with FBI agents took place.
The judge’s brief order states that Mueller can choose to file the materials under seal if necessary. Sullivan also ordered the Flynn team to turn over the documents backing up its assertions. The judge could determine why the FBI apparently took a significantly more aggressive tack in handling the Flynn interview than it did during other similar matters, including the agency’s sit-downs with Hillary Clinton and ex-Trump adviser George Papadopoulos. Flynn is set to be sentenced next Tuesday — but Sullivan’s move might delay that date, or lead to other dramatic and unexpected changes in the case. Sullivan even has the authority to toss Flynn’s guilty plea and the charge against him if he concludes that the FBI interfered with Flynn’s constitutional right to counsel, although he has given no indications that he intends to do so.
On Tuesday, Flynn’s attorneys filed a sentencing memo in which they cited the 302 report from his interview with the FBI which show then-Deputy FBI Director Andrew McCabe urging Flynn to not have an attorney present for the questioning.
“I explained that I thought the quickest way to get this done was to have a conversation between [Flynn] and the agents only,” McCabe wrote. “I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House counsel for instance, that I would need to involve the Department of Justice. [Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”
Flynn’s report also stated, “The agents did not provide Gen. Flynn with a warning of the penalties for making a false statement under 18 U.S.C. 1001 before, during, or after the interview.”
Before the interview, McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport.”
The Flynn memo points out that the 302 report reveals that FBI agents strategized on how to handle Flynn if he did not remember exactly what he had said in his phone conversation with then-Russian Ambassador Sergey Kislyak because the agents had already read transcripts of the phone call.
The memo states that FBI officials decided if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used … to try to refresh his recollection. If Flynn still would not confirm what he said … they would not confront him or talk him through it.”