Two events this week could provide acting Attorney General Matthew Whitaker enough reason to fire Special Counsel Robert Mueller: The egregious case against General Michael Flynn and the mishandling of cell phones used by FBI lovers Peter Strzok and Lisa Page.
According to the federal guidelines for special counsel investigations, “the Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”
Since Mueller’s obvious conflicts of interest have been overlooked—including his ties to former FBI Director James Comey, his service under the Obama administration, and a team of biased prosecutors—“other good cause” could be the failure to produce court-ordered documents related to the Flynn case or the special counsel’s office scrubbing the iPhones used by Strzok and Page during their brief time on the team, or both.
First, the Flynn case. More than a year after the three-star general and former national security advisor pleaded guilty to one count of lying to the FBI, Flynn is set to be sentenced on December 18. Mueller’s team, citing Flynn’s cooperation and service to the country, recommended a sentence on the “low end” of the guidelines, which means no jail time. It appeared that Flynn, who lost his home paying for lawyers, only would have to perform community service.
A Bombshell Defense Memo
But Flynn is not going down quietly. Not only did his response to Mueller’s sentencing memo contain explosive details about potential misconduct by FBI officials, public comments by former FBI Director James Comey further exposed how his agency cornered—if not entrapped—Flynn during the very first days of a tumultuous administration under siege by the media and Obama holdovers.
In a memo submitted to the court on December 11, Flynn’s lawyers explain that then-Deputy Director Andrew McCabe called Flynn on a secure phone to the White House on January 24. McCabe asked Flynn if he could send in a few agents to speak with him about “his communications with Russian representatives.” (Flynn’s private calls with the Russian ambassador had already been leaked illegally to the Washington Post; Flynn also was under investigation by the FBI for his alleged ties to the Kremlin.)
McCabe advised Flynn that “the quickest way to get this done was to have a conversation . . . with the agents only.” If he wanted the White House counsel present, McCabe said, then he would “need to involve the Department of Justice.” Flynn deferred. Two hours later, two FBI agents, including the disgraced Peter Strzok, interviewed Flynn but did not warn him about making false statements to the FBI. Trump’s new national security advisor and former head of the Defense Intelligence Agency viewed the agents, according to McCabe’s notes, as “allies.”
Where Are the Notes?
Apparently, Flynn’s memo raised the hackles of U.S. District Judge Emmet Sullivan. (Sullivan famously tossed the conviction of former Senator Ted Stevens in 2009, saying he had “never seen mishandling and misconduct like what I have seen” by the Justice Department. The head of the FBI who helped prosecute Stevens? Robert Mueller.) The judge demanded late Wednesday night that Mueller’s team submit all relevant documents, including FBI interview forms, pertaining to the Flynn case by Friday afternoon. The trove presumably would include the long-awaited 302 form filed after the FBI’s January 24, 2017 interview with Flynn.
But Mueller’s office did not hand over a 302 on Flynn; in fact, the only 302 submitted to Judge Sullivan was a July 19, 2017 interview with Peter Strzok that was conducted “in relation to other matters,” according to Mueller. (Strzok was removed from the Mueller team days later.) That heavily redacted form backed up what Flynn had said about the FBI’s pitch for the Flynn meeting. Further, Strzok and the other agent attested that “Flynn was not lying or did not think he was lying.” And the only notes directly related to the January 2017 interview with Flynn was a summary written by McCabe, who seemed to have convinced Flynn the purpose of the meeting was to discuss leaks to the media about his calls with Ambassador Kislyak.
In other words, there does not appear to be a formal 302 on file about one of the most critical meetings between the FBI and a suspected Russian agent working side-by-side with the president of the United States who had been under investigation by the FBI since July 2016.
Mueller’s team—perhaps gobsmacked both byFlynn’s memo and the judge’s request—blasted back: “A sitting National Security Advisor, former head of an intelligence agency, retired Lieutenant General, and 33-year veteran of the armed forces knows he should not lie to federal agents,” Mueller insisted in a seven-page filing. “He does not need to be warned it is a crime to lie to federal agents to know the importance of telling them the truth.”
Mueller recounted the officials Flynn allegedly lied to, including Vice President Mike Pence. “Thus, by the time of the FBI interview, the defendant was committed to his false story.”
U mad, bro?
Covering Up for Strzok and Page
That wasn’t the only time this week Team Mueller would feel the heat.
On Thursday, Michael Horowitz, the Justice Department’s inspector general, filed a report based on an investigation into missing texts between Strzok and Page. The report disclosed that the special counsel’s office scrubbed the iPhones used by both FBI agents while they worked for Mueller in mid-2017. Page, who exited the special counsel’s team in July 2017, left her phone at the office; the device was not located until September 2018 and had been reset to factory settings two weeks after she left.
Astoundingly, Mueller’s office also erased all information on Strzok’s phone in early September, determining there were “no substantive texts, notes or reminders” on his device. It had been reissued to another user so the phone, according to Horowitz, “had no content related to Strzok.”
How can this be acceptable? How can a prosecutor delete information contained on a government device used by government employees? Especially employees under suspicion for their partisan influence in key investigations, including the Clinton email and Trump-Russia cases? Congress needs to demand an answer why the destruction of government property (texts, emails, and other communications) let alone the destruction of evidence is acceptable conduct by the special counsel.
Flynn’s sentencing is set for Monday. Some already are demanding that President Trump pardon him and are outraged at the mishandling of his case. If Sullivan tosses Flynn’s case, that move, in addition to the destruction of the Page-Strzok texts, would be more than enough reason for the attorney general to shut down the Mueller probe for good.
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