Abuse of power at the FBI: here it is, straight from the mouth of none other than former FBI Director James Comey. He was speaking at a public appearance Sunday in New York City before a (not surprisingly) warm and supportive crowd. Here’s the part where he actually brags that he personally ordered the agents to go ambush Lt. Gen. Michael Flynn...
Moderator: “You look at this White House now; it’s hard to imagine two FBI agents ending up in the state room. How did that happen?”
Comey: (after slight pause) “I sent them. (longer pause for big laugh from audience) Something we--I probably wouldn’t have done or maybe gotten away with in a more organized investigation—a more organized administration. In the George W. Bush administration, for example, or the Obama administration, the protocol---two men that, all of a sudden, perhaps increased appreciation for, over the last two years (long applause from audience). In both those administrations, there was process. So if the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel, there would be discussions and approvals, and it would be there, and I thought ‘it’s early enough; let’s just send a couple guys over.’”
This audience ate it up, but oh...where to start? Let’s put on our hip boots and try to wade through the hypocrisy.
Comey thought, “Let’s just send a couple guys over.” How does THAT follow “process”? He talks about administrations having “process,” but he conveniently forgets that the FBI has “process,” too, plenty of it, and this is just one of many, many examples of the Obama FBI going around it instead of following it. When Comey thought he could get away with violating protocol, he just did it. (He SURE did it when he announced that “no reasonable prosecutor” would indict Hillary, but I digress.) And Gen. Flynn, being brand new to his White House position, probably didn’t even know what the protocol was supposed to be, so he said, “Sure, come on over.”
At the time this happened, President Trump had been in office FOUR DAYS. Besides that, he was coming in on the heels of the outgoing opposition party (I know how that can be, having had the door to my new office in the Arkansas State House literally nailed shut by Democratic staffers before they left.). The first few weeks, even months, of every new administration are always chaotic. Comey took advantage of that to fly under the radar and violate the rules, and now he brags about it.
Not just bragging –- he’s passing the blame; as in, hey, it’s THEIR fault that we did this, because THEY weren’t organized enough (four days in) to keep us from doing it. They don’t deserve to be treated according to the usual protocol.
I also noticed an interesting Freudian slip: Comey says “...in a more organized investigation” before correcting himself and saying “...in a more organized administration.” He was right the first time; the INVESTIGATION by the FBI was NOT organized the way it was supposed to be in terms of following correct “process.” They were playing fast and loose, essentially doing whatever they thought they could get away with in their treatment of Gen. Flynn.
Margot Cleveland, in a piece for THE FEDERALIST, references the same sentencing memo from Flynn’s attorneys that we’ve discussed before, but she has found something more. She says that for the first time, we can see concrete evidence that the FBI created “multiple 302 interview summaries” of Flynn’s questioning, which was done (as we knew) by (yes) Peter Strzok and also FBI Special Agent Joe Pientka. These were the “couple guys” Comey sent over to talk to Flynn --- no need for a lawyer --- presumably about details of conversations he’d had with foreign officials during the transition.
Let me interject something here: It was not a crime for Flynn to have conversations with foreign officials –- even Russians! –- during the transition. The election was over. In fact, at that point, having those conversations was part of his new job as national security advisor. And when the “couple guys” from the FBI asked him, in casual talk, about mentioning sanctions in the conversation, it’s understandable that he might not have wanted to be super-forthcoming with officials from the outgoing administration. Or he really just didn’t remember that. Either way, he didn’t know he was being officially interrogated and could have been charged with a crime, because they deliberately did not tell him that. Now, let’s get back to Cleveland, who, by the way, rocks.
She notes, as we have as well, that the Flynn 302 was dated in August, nearly seven months after the “couple guys” from the FBI talked to Flynn. But we also have evidence, contained in yet more Strzok-Page texts, that Strzok wrote his notes soon after the interview with Flynn. He refers to them in a text to Lisa Page sent February 14. Also, Comey refers to seeing what must have been an earlier 302 (because he was fired in May of 2017) in testimony given to the House Judiciary and Oversight Committees under questioning by Trey Gowdy.
So, why is the 302 we know about dated August 22, 2017? If this is a new version, who wrote it, and why? By this time, Mueller had already removed Strzok from the special counsel team because of the anti-Trump text messages he’d exchanged with Page. Is it possible that Mueller and/or officials at the FBI wanted Pientka, the other agent, to have sole authorship, so it wouldn’t be tainted by Strzok’s obvious partisanship?
Sens. Lindsay Graham and Chuck Grassley have been trying to find out; in fact, here are just a few of the questions they’ve sent to Inspector General Michael Horowitz: Were the 302s ever edited? If so, by whom? At whose direction? How many drafts? Are there material differences between the final draft and the initial draft(s) or the agent’s testimony about the interview?
According to Cleveland, “Horowitz has yet to answer these questions.” But now we know the judge in Flynn’s case, U.S. District Court Judge Emmet Sullivan, is quite curious about this and has ordered Mueller’s office to hand over any evidence that might be exculpatory, even if the government believes it “not to be material.” (Side note: this judge must be aware that Mueller’s attack dog, Andrew Weissmann, has a well-deserved reputation for hiding exculpatory evidence.) Judge Sullivan demands that this include “any 302s or memoranda relative to [Flynn’s interview].”
Deadline for delivering this information to Judge Sullivan is Friday at 3 p.m. We won’t see it, at least right away, because the judge will be looking at it under seal.
Cleveland points out that Sullivan had similar experience with prosecutorial misconduct in the Sen. Ted Stevens case; they withheld 302s, failed to include exculpatory statements in the 302s, and decided not to even write a 302 for an interview they thought “didn’t go very well.” This judge certainly doesn’t want to be experiencing deja vu.
Think the special counsel still HAS the original 302s? Cleveland is doubtful. Weissmann is known for having systematically destroyed them in the Enron case. (Incidentally, did you know the phones used by Strzok and Page to text each other about Trump have been wiped totally clean and given to new staffers? That’s done as a matter of course as staff turns over, but these phones were evidence!) If Sullivan finds that evidence has been destroyed, he should cite the prosecutors for gross misconduct and exonerate Gen. Flynn. I’d go the extra mile and see that his legal expenses are repaid in full. And can you say “punitive damages”?