Claim that FBI entrapped Flynn renewed
President Donald Trump and his supporters seized on newly disclosed documents to argue Thursday that Trump’s former aide Michael Flynn was railroaded into pleading guilty as part of an FBI investigation into the 2016 campaign and Russian interference. But legal experts said the material is unlikely to convince a judge that agents entrapped the former national security adviser.
The documents released Wednesday evening include notes showing that FBI officials discussed in advance how to handle a January 2017 interview with Flynn about his contacts with Russia’s ambassador to the U.S. before Trump took office. Three people familiar with the matter said the notes were written by E.W. Priestap, a former assistant director of the FBI’s counterintelligence division. The people spoke on the condition of anonymity because Flynn’s case is still being considered by the courts. A lawyer for Priestap did not respond to messages seeking comment.
Flynn’s lawyers, Sidney Powell and Jesse Binnall, have called the materials “stunning” evidence showing Flynn was “set up and framed by corrupt agents at the top of the FBI.”
Trump, who removed Flynn as his national security adviser less than a month after taking office but has long accused those who investigated him of corruption, told reporters Thursday: “They destroyed him, but he’s going to come back, like I say, he’s going to come back, bigger and better.”
Trump’s comments in support of Flynn, who pleaded guilty in late 2017 to lying to the FBI, have revived speculation that he intends to pardon his former aide, one of several people close to the president who were charged as part of former special counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election.
The notes show that before the Flynn interview, FBI officials discussed the possibility that he would lie to them, given that he had already apparently denied to other White House officials that he’d discussed sanctions against Russia weeks earlier in phone calls with then-Russian Ambassador
Sergey Kislyak.
“What is our goal?” Priestap wrote in the notes. “Truth/admission or to get him to lie, so we can prosecute him or get him fired?” Priestap also wrote that the FBI should “protect our institution by not playing games.”
“These notes raise questions about the investigation, and it is not surprising that Flynn’s defense team is pressing the defense of entrapment,” said Robert Mintz, a former federal prosecutor now in private practice. “But entrapment is a high bar. It is not enough simply to show that government agencies solicited a criminal act from a defendant. The critical issue for the defense is proving that investigators induced the defendant to engage in criminal conduct that the defendant would not otherwise have committed.”
Chuck Rosenberg, a former U.S. attorney who also served as chief of staff for James Comey, who as
FBI director sent agents to interview Flynn in 2017, said the notes do not make a case for entrapment.
“It is not a close call,” Rosenberg said. “In this situation, Flynn had three options: Tell the truth, lie or refuse to talk. The FBI did not plant a lie, urge him to repeat the lie, record him in the lie and then prosecute him for lying. That might be entrapment. Here, Flynn was predisposed to lie, chose to talk and then lied. That’s not entrapment.”
Since his guilty plea, Flynn, 61, has changed course and has sought to withdraw the plea, arguing that he was entrapped, received poor advice from his previous lawyers and is innocent.
The single page of handwritten notes written by Priestap, dated the day of Flynn’s interview, appear to reflect his view that if Flynn lied in the interview, agents should confront him with a redacted piece of evidence so he will come clean.
“I don’t see how getting someone to admit their wrongdoing is going easy on him,” the notes say, adding, “If we’re seen as playing games, WH will be furious.”