Special counsel Robert S. Mueller III urged a federal judge Friday to dismiss arguments by President Trump’s former national security advisor Michael Flynn seeking to “minimize the seriousness” of his lies to federal agents.
In court papers, prosecutors for Mueller wrote that the retired three-star Army general should be held accountable for making false statements about his communications with the Russian ambassador during the presidential transition.
Mueller did not change his earlier recommendations that Flynn serve no prison time because of his extensive cooperation with investigators probing Russia’s interference in the 2016 presidential campaign.
Flynn, who has pleaded guilty to lying to the FBI, was forced out as national security advisor in February 2017 after less than a month in the job. He is scheduled to be sentenced Tuesday by U.S. District Judge Emmet G. Sullivan in Washington.
Mueller’s filing Friday challenged Flynn’s argument in court papers this week that prosecutors characterized as seeking to minimize his conduct. Defense lawyers raised questions about how FBI agents first interviewed him at the White House on Jan. 24, 2017, four days after Trump took office.
Flynn “recognizes his actions were wrong and he accepts full responsibility,” his lawyers wrote, but they said Sullivan should consider the circumstances of the interview in imposing sentence.
Trump allies and conservative pundits have suggested Flynn was tricked into lying by the agents.
But legal experts say there is no legal requirement to warn suspects that lying to FBI agents is against the law and it appears the agents were following standard procedures.
Mueller noted in his filing that Flynn lied to FBI agents after making false statements about his contacts with the Russian envoy, Sergey Kislyak, to Vice President-elect Mike Pence and other members of the transition team.
Mueller’s filing provides numerous new details about Flynn’s interactions with Kislyak shortly after the 2016 election.
Court-approved eavesdropping on Kislyak’s phone calls revealed that he and Flynn had discussed U.S. sanctions that President Obama had imposed on Moscow in December 2016 in response to a Kremlin-backed operation that hacked and released Democratic Party emails and spread disinformation on social media during the presidential race.
After the conversations were revealed in the news media, Flynn denied the reports to incoming White House officials, including Pence. Following the FBI interview, Justice Department officials warned the White House that Flynn could be vulnerable to blackmail by the Russians for lying to Pence.
Then-Deputy FBI Director Andrew McCabe and Flynn spoke by phone at 12:35 p.m. on Jan. 24, according to a report written by McCabe and included in Friday’s court filing.
Citing the media reports, McCabe said agents wanted to speak to Flynn about his contacts with Russian officials. “Flynn asked if I was referring to his contacts with the Russian ambassador, and I indicated I was,” McCabe wrote.
“He then stated I probably knew what was said,” McCabe added — a comment that suggests Flynn knew his calls had been recorded.
Flynn agreed to speak to the FBI, prosecutors wrote, and two agents went to the White House that afternoon. One was Peter Strzok, an agent later removed from Mueller’s team after it was discovered he had sent anti-Trump texts during the campaign. Strzok was fired this summer.
Flynn gave Strzok and the other agent a tour of the White House after they arrived. At one point, they bumped into Trump as he and workers were discussing where to place artwork, according to a redacted FBI interview of Strozk in July 2017 that was included in the court papers.
The agents had agreed before the interview that if Flynn said he did not remember something, the agents would use his exact words from his call with the Russian diplomat to refresh his memory, the FBI report said. If Flynn would not confirm what he had said, the agents had agreed not to confront him.
Flynn later admitted in court that he falsely denied to the agents that he told Kislyak that Russia should not retaliate for Obama’s sanctions.
When Russian President Vladimir Putin announced that Moscow would not retaliate, Kislyak called Flynn to say the decision was in response to his request, according to court documents.
Strzok described Flynn as “relaxed and jocular” during the interview. Strzok also noted that he did not pick up signs that Flynn was lying to them, according to the FBI report.
The agent’s impressions “do not change the fact — as the defendant has admitted in sworn testimony to this District Court — that he was indeed lying, and knowingly made false statements,” prosecutors wrote.
Legal experts said Mueller’s filing probably was designed to alleviate any concerns by the judge that Flynn had been duped by agents. Sullivan this week ordered prosecutors to provide him with FBI reports documenting the interview.
Steven Levin, a former federal prosecutor, said the documents made clear that Flynn knew agents wanted to talk to him about Kislyak, and that his lies were intentional and “not simply off-the-cuff remarks.”
Frank Montoya, a former FBI counterintelligence agent, said the documents indicate the bureau followed standard procedures in interviewing Flynn.
“I would have made the approach to Mike Flynn in the same way,” Montoya said. “Flynn had a good working relationship with many of us at the FBI.”