Ghost of J. Edgar Haunts Flynn Investigation

Former FBI special agent Coleen Rowley explains Bureau misdeeds in the Flynn case.

By Coleen Rowley
Special to Consortium News

In this time of unprecedented political polarization, it’s disappointing but not surprising to see the Justice Department’s recent request to dismiss its prosecution of retired General Michael Flynn causing yet another media firestorm to swirl around Attorney General William Barr.

Obama Administration former officials, like the hyperventilating authors of this New York Times op-ed, “The Appalling Damage of Dropping the Michael Flynn Case,” go so far as to claim that dropping the case “embeds into official U.S. policy a shockingly extremist view of law enforcement as the enemy of the American people.”

In stark contrast, other former FBI agents, myself included, are appalled at Bureau and other “national security” officials’ numerous suspicious departures from standard FBI/Department of Justice policies that have finally been brought to light, marking this most bizarre investigation aimed at “get(ting) Flynn to lie.”

Flynn. (US Defense Dept.)

Flynn was asked to “a friendly chat” with the FBI on Jan. 24, 2017, for which he was told he would not need a lawyer present. The interview was part of the FBI’s Russiagate investigation, a purported scandal that has now all but totally collapsed.

The agents wanted to speak with him about his conversations with Sergey Kislyak, the then Russian ambassador to the U.S., while Flynn was on the Trump transition team as incoming national security advisor. Having already read the transcripts of those intercepted conversations there was nothing the agents could learn from Flynn.

According to FBI administrative notes released earlier this month, an official identified in the press as Bill Priestap, then assistant director of the FBI’s Counterintelligence Division, asked whether the only aim of the upcoming interview with Flynn was to get him to lie about his conversations with Kislyak. “Our goal is to determine if Mike Flynn is going to tell the truth about his relationship with Russians,” said Priestap in a hand-written note. But Priestap was having second thoughts.

I agreed yesterday that we shouldn’t show Flynn [REDACTED] if he didn’t admit,” he wrote, the redaction presumably meaning the transcript of Flynn’s calls with Kislyak. “I thought about it last night, and I believe we should rethink this. What is our goal? Truth/admission or to get him to lie, so we can prosecute him or get him fired?…Protect our institution by not playing games.”

Flynn was indeed formally charged with lying to an FBI agent and on Dec. 1, 2017 pled guilty after Russiagate Special Counsel Robert Mueller reportedly threatened to prosecute his son. Flynn was fired by Donald Trump after Flynn lied to the vice president about the conversations with Kislyak.

Kislyak. (Flickr)

In those conversations, Flynn asked that the Russians not retaliate for the Obama administration sanctions on Moscow imposed for the now debunked Russiagate allegations. Russia eventually decided not to retaliate. Flynn also asked on behalf of Israel that the Russians veto a UN Security Council resolution condemning illegal Israeli West Bank settlements, which Obama was planning to abstain on. Russia refused this request.

Upon release of the FBI documents this month, Flynn sought to undo his guilty plea and last week the Justice Department dropped the case. The judge, however, has not yet agreed and has asked for expert opinion.

Law Rarely Used

Many former FBI agents will probably recall being instructed in FBI training school (as I was) that Title 18 US Code 1001 (lying to an FBI agent) is mainly to caution a suspect not to lie, in order to get him or her to tell the truth to further an investigation.” 

We were taught (and later learned by experience) that, for a lot of reasons, violation of this provision of “lying to the FBI” would almost never be prosecuted, especially if it was the sole “crime” committed. One reason for this was, at least in my law enforcement experience, that many, if not most, people who are embarrassed to be suspected of wrongdoing, do lie, or at least partially fudge the truth during initial interviews, as it’s a natural ego-defense.

Please Donate to Consortium News’ 25th
Anniversary Spring Fund Drive

So “getting” someone to lie, if that’s “the goal” (as admitted in the released FBI administrative notes on the Flynn case), is actually very easy. If the green light is now on to use T 18 USC 1001 law in this manner, the sky’s the limit. The FBI could lock up the world. In one of the released emails, FBI attorney Lisa Page shows how rare prosecution under 1001 is by writing:

“I have a question for you. Could the admonition re 1001 be given at the beginning of the interview? Or does it have to come following a statement which agents believe to be false? Does the policy speak to that? (I feel bad that I don’t know this but I don’t remember ever having to do this! Plus I’ve only charged it once in the context of lying to a probation officer.)”

‘Rewriting’ the 302

Fired FBI Agent Peter Strzok, a zealous Russiagater who took part in the Flynn interview, and (his paramour) Page, appear in the Flynn case to have run roughshod over basic FBI legal policy by heavily editing the 302  form of the interview, as aptly detailed by retired supervisory agent Thomas Baker and other FBI agents.  While Strzok asked Flynn the questions, his partner at the interview, Agent Joe Pientka, took the notes, which Strzok and Page, who wasn’t present, edited, according to released text messages between them. 

Peter Strzok during congressional hearing in July 2018.

The rules drilled into new agents are about the need to take verbatim notes, to be timely in documenting an interview on the FD-302 form for use in court, and to disallow edits by supervisors or attorneys who weren’t even present at an interview. These policies—all flouted in the Flynn case—were developed and designed to ensure accuracy during the Hoover era, long before tape recording equipment existed. 

302s Only

Hoover’s FBI power was such that the Bureau could usually successfully insist, under federal rules of evidence and trial discovery, that only the final, polished FD-302 interview form would ever be handed over and made public at a trial.

The FBI and DOJ would always fight tooth and nail against “open file discovery,” claiming that other rough investigative and “administrative” documents in a file were not “relevant” and could therefore be kept hidden from the defense at trial. 

It wasn’t until a few years after Hoover’s death that courts stopped FBI agents from destroying their contemporaneous interview notes and made the “1A envelope” preserved notes discoverable so that defense attorneys could check to see how closely the content of an agent’s FD-302 transcription conformed to his/her contemporaneous notes.   

But the art of transcribing from rough notes in one’s own words what a suspect or defendant said does inherently allow even the most conscientious investigators some leeway, enabling the final 302 court document to be not as accurate as an actual recording of the interview.  

In a conspiratorial “ends justify the means” situation that Strzok and Page believed themselves to be operating in, or in the case of any hell-bent, prosecution-focused, overzealous rogue agent(s), the old-fashioned FD-302 Hoover way is, and always was, susceptible to outright abuse. 

(It may be appropriate to note that similar over-zealousness to benefit trial prosecutors was long practiced in the FBI laboratory until a top FBI agent-scientist and whistleblower blew the lid off related abuse that allowed FBI managers to rewrite and “strengthen” scientific results obtained by the agents who actually performed the forensic laboratory tests and analysis.)

Hoover. (Flickr)

Anyway, that’s why most other state and local law enforcement agencies in the country went (and/or were forced to go) to tape recording of confessions and other important interviews in the 1980’s to 1990’s.  However the FBI bureaucracy long resisted the move to recording devices. 

Over the decades, as voice and video recording equipment became more and more prevalent and easy to use, defense attorneys and even judges started to hammer FBI agents about why they continued their old-fashioned reliance on individual agents’ note-taking abilities and memories.

Nevertheless, for nearly 40 years FBI directors and special agents in charge (SACs) would continue arguing about the difficulty of using modern technology to record interrogations and interviews. They always contended (at least in internal arguments, but never publicly admitted on a witness stand) that allowing agents to testify and tell juries what a defendant said could always be relied upon as more successful for the prosecution than allowing a jury to hear a tape or video recording of exactly what a defendant said. 

It was well known and even proudly pointed out internally that in “he said-she said” disputes, a jury would always tend to believe the FBI agent over a defendant.   

The Flynn 302 fiasco illustrates how FBI managers recognized what an advantage the final “written in your own words” 302 is when it’s declared to be the only relevant document (no “administrative documents,” early drafts, etc. need ever be handed over in discovery) when juries will almost always believe the FBI agent over a defendant. It is rare for adminstrative documents to become public, as they have in the Flynn case.

Of course if Strzok and his fellow FBI agent had asked Flynn for his consent to be tape recorded, Flynn would have undoubtedly quickly realized this was not a friendly interview by agents attempting to actually gain counter-intelligence about Russia.

Not Material

That brings up a whole n’other problem with the Flynn case that again harkens back to Hoover and his pre-Church Committee abuses.

Barr and (former FBI agent, now U.S. Attorney) Jeffrey Jensen concluded, after reviewing the complete file, that Flynn’s “lying to the FBI” was not “material” to a bonafide matter under FBI jurisdiction, but merely predicated upon the entirely specious “Russiagate” counter-intelligence investigation of Flynn that Strzok and Page deliberately kept open on a technicality, even after the FBI ordered it closed because there was no reasonable basis to believe Flynn had ever colluded with the Russian government.

The Flynn case furnishes a sterling example of the post 9-11 “war on terror” having demolished the “wall” that separates intelligence gathering from criminal investigation.

Robert Mueller giving congressional testimony on July 24, 2019. (C-Span screenshot)

While fraught with problems and contradictory DOJ guidance, the “wall” had existed for a valid reason after Church Committee discovery of abuses under Hoover et. al. who so easily used “national security” and “counter-intelligence” as a pretext to surveil, investigate and use COINTELPRO “disrupt and dismantle” activities to go after America’s national leaders, allowing a way around 4th Amendment protections.

I and other former FBI agents believe the egregious plotting to railroad Flynn and “get him to lie,” requires dismissal of these charges. A number of additional significant problems with the Flynn investigation and prosecution are enumerated by attorney and award-winning journalist Glenn Greenwald in his excellent 1 ¾ hour-long detailed expose at The Intercept and by Scott Ritter, who focuses on “why innocent people plead guilty given plea bargaining” abuses in our justice “system.”  Neither Greenwald, Ritter nor I happen to be fans of Flynn or Trump.  But wrong is wrong. 

It’s hardly extremist to realize that FBI and other law enforcement officials have, over the years, made terrible mistakes, and in some cases, engaged in outright wrongful conduct, sometimes in rogue operations and other times more systemically.

I will venture to say that FBI “entrapment” type actions in manufacturing crimes, as was practiced on Flynn, got its early start as a more normalized standard procedure after 9-11 with Robert Mueller’s FBI gravitating to using con-artist type informants to infiltrate Muslim communities in order to identify, coerce and entrap the more emotionally vulnerable members into committing acts that the FBI could take credit for as “preventing” terrorism.

The FBI found it increasingly difficult to prevent real terrorism spurred by successive administrations committing war crimes that killed so many foreign civilians.

Please Donate to Consortium News’ 25th
Anniversary Spring Fund Drive

Some FBI and other law enforcement wrongdoing has come to light, like the systemic torture operations perpetrated by certain Chicago police officials; the FBI’s decades-long tolerance for employing murderous mobsters as their “top echelon” informants; the Bureau’s spying on and attempted blackmail of Martin Luther King Jr. and other leaders, as well as law enforcement’s racial profiling and wrongful shootings.

In all too rare instances, innocent people are exonerated. Rather than being happy that this bit of justice is finally happening in the Flynn case, however, Russiagate proponents and Democratic partisans seem especially incensed since the always-flimsy charges of Flynn’s “lying to the FBI” was about all Special Prosecutor Mueller’s probe could show for their nearly two-year long, $32 million dollar massive effort.

We should pay heed to Scott Ritter’s admonition:

The Obama national security team abused its power by unmasking Flynn’s identity, then leaked Flynn’s identity to the press, using this press reporting to justify the continuance of a baseless counterintelligence investigation in order to set a perjury trap intended to place Flynn in legal jeopardy. This is not how American justice is supposed to be dispensed, and the fact that Flynn had to undergo this ordeal should send a shiver down every American’s spine, because if left unchecked, there but for the grace of God go us all.”

Coleen Rowley, a retired FBI special agent and division legal counsel whose May 2002 memo to then-FBI Director Robert Mueller exposed some of the FBI’s pre-9/11 failures, was named one of TIME magazine’s “Persons of the Year” in 2002. Her 2003 letter to Robert Mueller in opposition to launching the Iraq War is archived in full text on the NYT and her 2013 op-ed entitled Questions for the FBI Nominee was published on the day of James Comey’s confirmation hearing. Assigned to the Omaha, Jackson, MI, New York City field offices, and to the U.S. embassy in Paris, and consulate in Montreal, Rowley taught constitutional law to FBI agents in Minneapolis. 

The views expressed are solely those of the author and may or may not reflect those of Consortium News.

Please Donate to Consortium News’ 25th
Anniversary Spring Fund Drive


20 comments for “Ghost of J. Edgar Haunts Flynn Investigation

  1. robert scheetz
    May 19, 2020 at 18:20

    These are not just “dirty cops”. From its inception the FBI role has been that of a political police, crime-fighting has always been the briefest fig leaf. Commies, Afro’s, Peaceniks, Terrorists, Journalists and Writers, every social justice movement since the teens has been ferociously targeted by the FBI with utter contempt for law and decency, …all the way to murder, Malcolm, Martin, Chicago Panthers, …and very likely Jeffrey Epstein. They do all needed to enforce the ideology of the ruling class and defend its members and obedient flunkies and crimes (Dir. Mueller was principal in the 9/11 Commission.).

  2. Me my self
    May 19, 2020 at 10:12

    Entire resources of government directed against an individual.

    Pay own defense.

    Assigned Council (I need to stop laughing)

    Coercion to plead guilty.

    Denied timely access to all discovery.

    Non equal stature in proceedings.

    Biased society on guilt.

    Biased judicial on guilt.

    The adversarial governmental approach to resolution of crime is unreliable.

    Looking for the truth should not be adversarial.

  3. geeyp
    May 19, 2020 at 00:37

    I have followed this story since it started. The one thing I cannot seem to recall is Mueller’s rationale (if there was any) for going after Michael Flynn’s son. Anyone?

    • Coleen Rowley
      May 19, 2020 at 23:20

      I’d have to double-check but I have a vague recollection that Flynn’s son was involved in his business as an agent representing Turkey which he failed to register under FARA so I’m thinking they may have threatened to charge his son with that. Of course there are hundreds of former Washington DC politicians and other lobbyist figures that never registered as foreign agents. In the past, they would just send a warning to tell them they had to register but almost never prosecuted anyone for failure to register.

  4. Drew Hunkins
    May 18, 2020 at 23:33

    “The agents wanted to speak with him about his conversations with Sergey Kislyak, the then Russian ambassador to the U.S., while Flynn was on the Trump transition team as incoming national security advisor.”

    God forbid Flynn should attempt a little bit of diplomacy by pulling us back from the brink of possible World War III.

    • Obadiah Ets
      May 19, 2020 at 04:36

      Maybe we should bring this Hoover icon down to the mere human status he barely qualifies for. He blackmailed his way into his lifetime directorship with threats, real or imagined. What a way to start the most Fidelity Integrity and Bravery institutions of this country, now headed by political appointees, Comey came from the Boeing boardroom did he not? Does he even know how to operate a firearm? Now if we could find a picture of ole J Edgar Hoover holding that tommy gun while dressed in his favorite Carmen Miranda outfit complete with the pineapple, grapes, and bananas she/he love to prance around in at home with mommy and best boy Purvis admiringly looking on. Maybe that’s why he denied the existence of the mafia for long, it would’ve meant less playtime at mummies. So what Whitey Bulger was allowed to carry out his murderous crime all with the aid of boyhood pal now FBI Special Agent Donovan, wasn’t it? In the mean time he’s doing everything he can, or make up what he can’t to bring an end to the long overdue, and still ongoing fight for civil rights.”W 43” so preoccupied with taking “DC INC” democracy to Iraq by destroying 3/4 of their country, while our courts and prisons are full of our brothers and sisters of color, civil rights hasn’t gotten any farther than our continuous destructions of Afg, Iraq, Syria, Libya, Somalia, Central/South Americas. The ultimate in ignorance, stupidity, hubris, hegemony, lies, theft, and hypocrisy is to think you’re going to spread something you never had. ??

    • luke
      May 19, 2020 at 09:59

      Anytime law enforcement says “you don’t need a lawyer”, you do need a lawyer.

  5. Daniel P
    May 18, 2020 at 22:20

    Big thanks to the author for her voice over the course of so many years and to Glenn Greenwald for his excellent recent explainer. Kudos, too, to the Grayzone’s Aaron Mate who has been all over the Russiagate scam from the start, carrying the torch forward from the late, great Robert Parry.
    I want to say that I can’t understand why US citizens cannot and will not listen to facts and logic such as presented here and by the above-mentioned journalists (and many more) to use as a guide their own critical thinking. But I do understand. We have in power an elite class – an entire economy – of people for whom lies, deceit, insider maneuvering and violence have borne them ill fruit in abundance. They have hijacked the discourse in this country and bent it to their will. And they have no intent on stopping themselves from gorging on our misery now. In fact, the pandemic has been their greatest gift….since, gee, 2008. Through their propaganda they have achieved a rock-bottom tribalism throughout the land that is perfectly suited to their diabolical ends. Ans, as a result, we can no longer grapple with the truth when we hear it. Not if it hurts ‘our side.’
    I rant here. But I fear for the days ahead.

  6. Nathan Mulcahy
    May 18, 2020 at 20:51

    Is there any institution in this country, that god supposedly blesses, not rotten?

    Thank you Coleen!

    • Obadiah Ets
      May 19, 2020 at 03:53

      The only reason God blesses this country is because of the“We the People”. The most exceptional thing about this country is the hypocrisy that spews out of mouths of the biblically illiterate religionist rats and cockroaches like Pompeo and the Pence of Darkness. To hear trump, a self proclaimed hedonistic atheist say God in any of his 6 word sentences is as disgraceful as them still using God’s name on a currency that’s responsible for more deaths here and abroad than any in history, that Judgement Day will come.

  7. Sam F
    May 18, 2020 at 20:01

    Thank you Colleen Rowley!

    I have evidence that something very serious is wrong with the FBI and DOJ now:
    1. I twice offered them much detailed evidence of a theft of $100 million by Florida politicians, and got no reply;
    2. All I need is their investigation of cash flows to the politicians and their political party (all seem to be Repubs);
    3. A major racketeering lawsuit is almost ready to go
    4. The federal judges of that party are obstructing sealed investigation and refusing to request FBI investigation.

    So if there are political party wars within the FBI/DOJ, how do I get the Dems to investigate when the Repubs refuse?

    Thanks for pointing out that:
    1. The FBI can use the “national security” excuse for political attacks (because the “war on terror” combined intelligence gathering and criminal investigation, previously separated due to abuses against MLK et al).
    2. The FBI can create fake interview records (using a written form instead of a recording) because “juries will almost always believe the FBI agent over a defendant.”
    3. The FBI was motivated to induce persons to acts to “take credit for” preventing terrorism when that became difficult.

  8. Buffalo_Ken
    May 18, 2020 at 15:07

    I think we need to get to the bottom of this. For our own sakes. I hope it happens, but I have my doubts.

    If we do, then if something changes afterwards it will be an accomplishment of good journalism. If we do, and nothing changes afterwards, it will be a testimony of the times we live in. If we don’t, which is quite probable, it will teach us nothing, but that has been the way it has been for so long, so it will be no surprise.

    Oh well, can’t always get the scoop.


      May 19, 2020 at 17:53

      “Getting to the bottom” of anything in Washington is like talking about the Second Coming of Christ.

      It ain’t gonna happen, and it makes no sense to speak of it.

      Such power as that exercised in Washington is close to absolutely corrupt.

  9. Linda Furr
    May 18, 2020 at 13:45

    This ties up all the loose pieces of this convoluted Intelligence State, attempted coup of the 2016 Presidential. It’s this kind of Democratic crap ( lies in handling of Benghazi, the overthrow of Gadhaffi/ ruination of the successful Libyan state, supporting jihadists in Syria, et al) that caused Trump’s 2016 victory. And it was Peter Strjok and Lisa Page who edited the notes of the FBI/Flynn ‘casual’ conversation!!

  10. evelync
    May 18, 2020 at 12:24

    Thank you Coleen Rowley.

  11. Jeff Harrison
    May 18, 2020 at 11:39

    Excellent peroration. Of course, it does make one wonder why they should ever trust the FBI or their products. By extension, why would anyone trust the federal government? Contrary to popular belief, when you can’t trust your own government, that’s a very bad thing.

  12. incontinent reader
    May 18, 2020 at 10:23

    This is a hugely important article explaining the process, the policies, and their historical context by one who a top legal expert at the Bureau. This is what the American public should be reading to know what should happen, as well as to learn how the process and policies have been violated, what have been the consequences. Thank you Coleen Rowley, and thank you Consortium News.

  13. michael egan
    May 18, 2020 at 09:42

    Thank you! and Scott Ritter. and Glenn Greenwald

  14. May 18, 2020 at 07:58

    Great article especially for those like me that don’t fully understand all the legal intricacies of law. Still, I think back to the firing of Flynn by Trump and cannot move away from the feeling it was the act of a frightened man, frightened by the onslaught unleashed against him even before the inauguration. I think it explains, along with his actions against Iran and his subservience to Israel as means to protect himself. It explains his distancing from Putin, as well.

    No, those who tried to get the President removed from office did not succeed in doing that, but they did succeed in bringing to a halt his threatening promises to seek detente’ with Russia and in creating greater misery for the people of the Middle East and Iran.

    People like the author do a great service for us all.

    • May 18, 2020 at 10:48

      Agree with your first point–the article makes less muddy for me procedures and systems that always seem opaque. And grateful for your 2nd point about what has been lost to us as a nation because of this misuse of power. Power corrupts, left, right center. Maybe the exoneration of Flynn for his fear-filled and wrong-headed treatment will make a little change in citizens’ perception. …though, it’s clear to me that stopping Trump’s possible moves toward de’tente was an intended consequence. Can’t let President Only-Awful be undercutting useful baddies.

Comments are closed.