Michael Flynn pleaded guilty to lying to the FBI earlier this year and last week Mueller urged Flynn serve no jail time because of his “substantial assistance.” Tuesday night Byron York at the Washington Examiner published a story based on a sentencing memo filed by Flynn’s attorneys.

The sentencing memo notes that when Andrew McCabe called Flynn, four days into the new Trump administration, he told Flynn he needed to have a couple agents interview him and noted the “quickest way” to get that done would be without involving any White House lawyers. McCabe further explained that involving the White House Counsel would necessitate further involvement of the Department of Justice. So Flynn agreed to the meeting with no counsel present. Furthermore, the agents who showed up, including Peter Strzok, never warned Flynn about the legal consequences of lying to the FBI. Instead, they let Flynn think it was a “relaxed” meeting so Flynn would feel “unguarded.”

As General Flynn has frankly acknowledged in his own words, he recognizes that his actions were wrong and he accepts full responsibility for them. There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on
a secure phone in his office in the West Wing. General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr.
McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. 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. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn. By the agents’
account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. 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,” one of the agents reported. Before the interview, FBI officials had also decided that, 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.” One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”

The memo goes on to state that in 13 cases identified with similar facts, only two defendants wound up serving jail time. One of those incidents involved “a trained attorney who was represented by counsel during the interview.” The second case involved George Papadopoulos. The memo notes that Papadopoulos was “was warned that lying to investigators was a ‘federal offense’ that could get him ‘in trouble.'”

Of course one can certainly argue that any person serving as a National Security Advisor to the president should know better than to make a false statement to the FBI. But Flynn was a soldier not an attorney. Had he chosen to involve the White House Counsel, this entire sequence of events may have gone very differently.

Finally, it’s worth pointing out that both Peter Strozk and Andrew McCabe have since been fired. Strzok was fired in August for creating the perception (at a minimum) that his politics were influencing his investigations into Donald Trump and Hillary Clinton.

McCabe was fired days before he could retire based on the findings of the DOJ Inspector General. The IG concluded that McCabe had lied twice under oath (including once to the FBI) and that he also lied once to then FBI Director Comey. Maybe that’s some kind of karma in action. In September there were reports that a grand jury was investigating McCabe and could indict him. McCabe’s lawyer said at the time that his client would not be prosecuted absent “inappropriate pressure from high levels of the Administration.”