That Peter Strzok 302 Probably Comes from the Obstruction Case File

I’d like to provide a plausible explanation for questions about an FBI 302 released yesterday as part of the Mike Flynn sentencing.

As a reminder, after Flynn pled guilty, his case ultimately got assigned to Emmet Sullivan, who is laudably insistent on making sure defendants get any possible exonerating evidence, even if they’ve already pled guilty. On his orders, the government would have provided him everything early in 2018.

In Flynn’s sentencing memo submitted earlier this week, his lawyers quoted from an Andrew McCabe memo written the day of his interview and a 302 that they described to be dated August 22, 2017, a full 7 months after his interview. In predictable response, Sullivan instructed the government to provide that McCabe memo and the 302 cited by Flynn’s lawyers.

When the government submitted those two documents yesterday, they raised still more questions, because it became clear the 302 (which is what FBI calls their interview reports) in question was of an interview of Strzok conducted on July 19, 2017, drafted on July 20, and finalized on August 22. The 302 described that Strzok was the lead interviewer in Flynn’s interview, whereas his interviewing partner wrote up the 302.

This has raised questions about why we only got the Strzok 302, and not the original one cited by Strzok.

While I don’t have a full explanation, certain things are missing from the discussion.

Folks are misunderstanding what the 302 represents. It is not the 302 reporting the Flynn interview. Rather, it is a 302 “collect[ing] certain information regarding Strzok’s involvement in various aspects of what has become the Special Counsel’s investigation,” which he described to one Senior Assistant Special Counsel and an FBI Supervisory Special Agent, presumably one assigned to SCO. The 302 notes that Strzok wasn’t just involved in the investigation of Mike Flynn. While it redacts the names, it also lists the other parts of the investigation he oversaw.

We know he was involved in the Papadopoulos investigation, and it appears likely he was involved in the Page investigation, as well. Both this passage and the next one describes the people at DOJ that Strzok interacted with in these investigations, which is further evidence the purpose of this 302 is not to capture the interview, but instead to capture details about internal workings surrounding the investigation itself.

The part of this 302 that is unredacted makes up maybe a third of the substance of the 302, and it appears between almost full page redactions before and after the part describing the Flynn interview. Again, the other stuff must be as pertinent to the purpose of this 302 as the Flynn interview itself.

had thought the interview might be an effort by SCO to capture Strzok’s institutional knowledge in the wake of the discovery of his texts with Lisa Page as a way to prepare some other FBI Agent to be able to testify at trial. But the timing appears wrong. DOJ’s IG first informed Mueller about the texts on July 27, and he was removed from the team the next day (though not processed out of that clearance, according to this report, until August 11).

Strzok was assigned to lead the Russia investigation in late July 2016. 197 Page also worked on the Russia investigation, and told us that she served the same liaison function as she did in the Midyear investigation. Both Page and Strzok accepted invitations to work on the Special Counsel staff in 2017. Page told the OIG that she accepted a 45-day temporary duty assignment but returned to work in the Deputy Director’s office at the FBI on or around July 15, 2017. Strzok was removed from the Special Counsel’s investigation on approximately July 28, 2017, and returned to the FBI in another position, after the OIG informed the DAG and Special Counsel of the text messages discussed in this report on July 27, 2017. [my emphasis]

But the interview does line up temporally with other known events: Around the time Strzok was interviewed, both Rod Rosenstein and Sally Yates were interviewed in the obstruction case, interviews that would also result in 302s summarizing the interview. Jim Comey had already turned over his memos on meetings with Trump by that point; eventually he would be interviewed by Mueller as well, though it’s not clear when that interview (and correlating 302) was.

Yates and Comey are both among the people the 302 explicitly describes Strzok interacting with.

In other words, it seems likely that this 302 was designed to capture what Strzok knew about the internal workings of DOJ and FBI surrounding the Mike Flynn interview, and likely was focused on explaining the significance of Flynn’s lies and subsequent firing to the obstruction case. That is, this would have served to turn what Strzok learned as investigator into information Strzok had to offer as a witness, in the same way that Mueller would have had to turn what Comey and Rosenstein knew as supervisors into information relevant to their role as witnesses. It probably had the unintended benefit of capturing what Strzok knew about key parts of the investigation before he was indelibly tainted by the discovery of his text messages.

If this is the explanation, it raises questions about why we only got this 302, and not the original one.

There’s a very likely answer to that: that original 302 presumably didn’t include this detail, at least not in the easily quotable form that would serve Flynn’s political purposes.

Flynn has, as far as we know, gotten everything. His lawyers chose which of those documents to quote. And Judge Sullivan only ordered the government to produce these two (though invited them to submit anything else they wanted to, an invitation they did not take up).

But there’s another piece of evidence that there’s far less to this 302 than some are suggesting: because Republicans in Congress chased down this detail over the last year, and in their most recent incarnation of drumming up conspiracies about Flynn, in questioning Jim Comey just a week ago, Trey Gowdy did not focus on the question of the 302s produced, but instead tried to suggest that Flynn didn’t mean to lie.

Note that, contrary to what right wingers have suggested, Comey did not say anything inconsistent with the Strzok interview 302; rather, he said he wasn’t sure where his knowledge came from.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question. [my emphasis]

What may best explains this exchange is that, when it happened, Comey had never seen the Strzok 302, he had just seen the original one, but Gowdy had seen both. That would be consistent with Andrew McCabe’s testimony to HPSCI, which acknowledged that the Agents didn’t detect deception but knew Flynn’s statements did not match the FISA transcript.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

Gowdy may be suggesting that the original 302 was unfair because it did not admit how well Flynn snookered the FBI’s top Counterintelligence Agent. But that detail may not be something Comey is even aware  of, because it only got written down after he had been fired. That would explain why Flynn wouldn’t want that original one disclosed, because it might make clear that the FBI immediately recognized his claims to be false, even if they didn’t know (before doing the requisite follow-up) why he lied.

One thing we do know: there are two (related) criminal investigations that have come out of Mike Flynn’s interview. The first, into his lies, and the second, into Trump’s efforts to keep him on in spite of his lies by firing the FBI Director.

While we can’t say for sure (and Mueller’s office would not comment in response to my questions when I asked if something like this explained the 302), one possible explanation for why we’re seeing just this 302 is it’s the only one that makes Flynn look good.

Update: As JL notes, the Mueller filing makes it clear that the 302 is neither from the Flynn investigation nor from an investigation into Strzok’s conduct.

Strzok was interviewed on July 19, 2017, in relation to other matters, not as part of the investigation of the defendant or any investigation of Strzok’s conduct.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

49 replies
  1. Alan says:

    Possible. Strangely though this 302 was attached to the Special Counsel’s reply memo, which raises the philosophical question, is the absence of incriminating evidence exculpatory? In other words, Special Counsel chose to include this 302 with their reply, but not the other. That would tend to make me think that the other 302 is not helpful to the Special Counsel, rather than the converse…

    • Troutwaxer says:

      “…is the absence of incriminating evidence exculpatory?”

      I’d think it must be, (IANAL) since in any criminal case, the prosecution has to prove guilt “beyond a reasonable doubt.” Or am I missing some important aspect of the question?

      • Alan says:

        Yes, that’s true. If the other 302 were bad for the FBI, you would think Flynn would want to show it to us. But in this case, neither party wants to show it, but the Special Counsel does want to show the later 302, so it’s a little strange…

        • greengiant says:

          As I read this post, Flynn’s lawyers only want the latter 302 disclosed to the judge, not the first.

      • bmaz says:

        Troutwater – that is an extremely bad assumption. And you have NO idea what conduct and putative evidence was merged into the general language of the plea and allocution. There are a LOT of reasons for both sides to tuck things aside when there is a cooperation agreement.

        • Troutwaxer says:

          “There are a LOT of reasons for both sides to tuck things aside when there is a cooperation agreement.”

          That makes excellent sense. Thank you.

    • skua says:

      I don’t see the police being unable find one of shells from the 5 bullets that the accused was witnessed to have fired into the victim, in front of 6 witnesses and viewable on security camera footage, before being immediately detained, at all exculpatory.
      And yet it is absence of evidence.

      • Alan says:

        It depends on the question you’re trying to answer. If the question was whether the accused fired 5 or 6 bullets (and if that fact were somehow relevant to a legal issue, such as a sentence enhancement), then the absence of a 6th casing would be exculpatory for that question.  BTW, I wouldn’t call this exculpatory evidence because it is not evidence–it is the absence of evidence–but the absence of evidence or a scarcity of evidence is certainly a fact to be considered when determining culpability.

        • bmaz says:

          On the other hand, I once was involved in a case where a defendant claimed self defense and the medical examiner determined the first shot killed the victim (his brother) and we got the other four shots into victim’s body suppressed as evidence because they were irrelevant and more prejudicial to the jury than probative under 403.

          • Alan says:

            That’s a interesting story, but there’s a scarcity of evidence concerning the verdict ;-) I’m going to go with hung jury?

  2. milton wiltmellow says:

    Trey Gowdy has no purpose other than promoting partisan interests.

    Normal people see, say, a stain on the carpet and wonder what it is and how it got there. Gowdy sees the same stain and wonders who — which democrat — put it there. Most people want to know what is true — what actually happened. In contrast, most conspiracists like Gowdy look for the conspiracy first … and last. They only ask “what” in order to prove the “who.”.

    The sad thing is, this sort of thinking drives Republican political strategy. As Gowdy tried to show with his Benghazi hearing, and the entire Republican congress tried to generate with hearings about Clinton’s emails, Hillary Clinton’s guilt needed only the proof that — they knew with certainty — such investigations would eventually prove. Nobody in the party seemed to ask “for what?” during their “lock her up” chants.

    I think this is why Flynn’s behavior lacked the indicia of lying. His virtue depended upon Clinton’s villainy. This has become common in national politics. Feelings of guilt are avoided through projection. Flynn wasn’t lying (in his mind), he merely had to explain why he did what he did. Standards of justice (truth -telling, criminal behavior, malintent, treachery) apply to others, and never belong to the self defending feelings of guilt with these projections.

    This is the difference between Sherlock Holmes and Tomas de Torquemada.

    • Troutwaxer says:

      That’s an interesting theory, and I think it fits some of the larger facts about the conflict, but the indica of lying also involve issues like “hesitations because he was trying to keep his story straight” or “sweating because having your lie match a sequence of events already known to your interrogators is hard work” so while I do think you’re looking deeply into the thought patterns of the opponent, I don’t think it applies here.

      I would guess that Flynn is either a sociopath, or that as an intelligence professional he was looking forward to the possibility of being interrogated and had an already concocted story ready to go. I think what was really going on is that he imagined that the Trump/Russia theory was a political/ideological accusation of the kind usually made by his own side, so there would be no resources assigned to listening to his conversations, when in fact the whole Trump/Russia thing is probably the largest single counter-intelligence effort in U.S. history. (And it’s in the sentence directly above that your idea really shines brightly.)

      Add in the idea that Flynn worked with the FBI on a day-to-day basis and assumed he was “one of the gang,” (or as his legal paperwork put it, “allies”) and it’s obvious that he didn’t call a lawyer because he didn’t think his “allies” would be working against him (or the President-elect’s already proclaimed foreign policy) and because he couldn’t imagine anyone actually spending the time/money/effort to record his conversations.

  3. bmaz says:

    I think y’all are WAY overthinking the nature of notes and other things and how, when and why they are formally reduced to 302’s.

        • Troutwaxer says:

          Is it a matter of someone saying (or implying,) “We don’t want to show this particular 302 at a sentencing hearing, so write up a new one and leave out _________ and _______? Or would there be a classified 302 and an unclassified 302, (as opposed to one 302 plus a variant of the same 302 with classified information blacked out?)

          • Alan says:

            We know that the later 302 contains the point that Flynn wants to make: that he was relaxed and showed “none of the normal common indicia of deception”. That’s probably why it is included.  The earlier 302 probably has no statements in it that either party feels a need to highlight, especially since it is undisputed that Flynn lied, and that is probably the primary point made by the earlier 302.

    • BobCon says:

      Mueller’s side in general has been very close to the vest about revealing info until they want to lower the boom, and it seems very possible this is just one of those times that they’re not showing their hand.

      The whole “no sign of lying” thing seems to be a lingering residue of the cherry picked facts that Nunes and the rest of the House GOP were peddling a while back. I’m inclined to agree with EW’s suggestion that if they had anything more substantial, they would have used it a long time ago.

  4. Trip says:

    I had to read this multiple times. I think my brain is going soft. So the original FBI interview with Flynn (where he lied but didn’t display deceitful body language, whatnot) was set aside by both parties, the prosecution and defense, they used a 302 as generated specifically after Mueller’s team came onboard, but this doesn’t mean that nothing was written up contemporaneously (under Comey), did I get that right? For some reason neither team wanted it presented, but it did exist?

  5. Marinela says:

    It seems there is a pattern at sentencing that happened with both Muller and Flynn, they pleaded guilty, got reduced to no jail time recommendations, then they started to walk back some of their aspects of the plea deals. Don’t know if this is typical, part of defense trying the best deals for their clients, or is part of larger scheme to discredit Mueller team.

    • bmaz says:

      I assume you are actually taking about Cohen and Flynn. Muller is non-existent. Cohen has been sentenced, and Flynn has not yet been. So, your perceived “scheme” is misplaced.

        • MuchBetterAtLurking says:

          Their about-face has puzzled me, too. The minute that Flynn and Papadopoulos had the slightest assurance of a minimal sentence, they started mouthing off about SC.

          As you say, maybe it’s the norm. A presidential scandal of this magnitude (not that the others remotely compare, in my mind) has never before faced our rapid news cycle. It’s probably the sort of minutiae that would never deserve space on a printed page.

          But if it were to be about discrediting Mueller, I see a few possibilities:

          Further conspiracy to obstruct. I just don’t know why Flynn would do this, though. He’s about to walk and he’d get himself right back in trouble?
          They were just blowing off steam having been boxed in for so long
          Flynn, specifically, could have had an axe to grind, if he feels like they tricked him.

  6. Tom says:

    Alan provided the link to the Lawfare blog containing the Special Counsel Reply to Flynn’s Sentencing Memo. On p.13 it the SC Reply Memo states: “Strzok conducted the interview and (redacted) was primarily responsible for taking notes and writing the FD-302.” Sounds like it’s this FD-302 that we’re curious about as opposed to the one Strzok wrote later. Strzok’s partner during the interview was Joe Pientka, as Greg Miller states in his book.

  7. Marinela says:

    Assuming that Mueller team doesn’t need the original 302 for Flynn sentencing conclusion so they don’t volunteered it, which is the point of this post I think.

    There was a Friday closed mystery grand jury session that some speculate may be related somehow to Flynn.



    • P J Evans says:

      I’ve seen speculation elseweb that it was about getting Himself to testify – that’s bonkers, as far as I can tell. (I don’t think that will happen under any foreseeable circumstances.)

  8. Trip says:

    Trump Working on Extraditing Gulen, Turkish Foreign Minister Says

    ‘In Argentina, Trump told Erdogan they were working on extraditing Gulen and other people,’ said Turkey’s foreign minister

    So the Flynn plan is still in play, except with less kidnapping and without his obnoxious son.

    Mueller Probes Flynn’s Role in Alleged Plan to Deliver Cleric to Turkey

    Under alleged plan, ex-Trump adviser and his son were to be paid millions to forcibly remove Fethullah Gulen from U.S. and deliver him to Turkish custody
    James Woolsey was telling the truth, it seems. $15 million for the act.

    After this article was published, Mr. Flynn’s lawyer, Robert Kelner, called the plot allegations “outrageous and prejudicial,” adding, “they are false.” A lawyer for Mr. Flynn Jr. declined to comment.

    • Tommy D Cosmology says:

      Horrifying. It seems to me that Flynn’s conspiring for money to kidnap a US Permanent Resident and send him to his death is an egregious crime that should be prosecuted. 

      Agreeing to relax sanctions is a political conspiracy, if you will. The Republicans had no problem lightening up on Russia over the Ukraine, and changed their Republican platform. Enough Republicans have been cozying up to Russia, I’m sure sanctions would have been kid gloves anyway.

      But kidnapping, sending this guy to his torture or death as a consequence, that’s too much for just enough Republicans, who might have some semblance of a conscience, for him to have gotten away with. Right?

      • bmaz says:

        Noting that that is exactly what Trump and Kushner are trying to find a way to do right this moment to shut Turkey up about the MbS complicity in the Khasoggi dismemberment murder.

        • Tommy D Cosmology says:

          I know. Can you imagine what an extradition would look like with Trump’s incompetence combined with this level of ruthlessness?

  9. Rusharuse says:

    Things that never happened:
    Bright kid watches Rudy on TV, jumps out of his chair “I wanna be like him. I wanna be a LAWYER!”

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