Briefly Noted: The Flynn FD-302; Levin And York

CTH has an excellent piece today regarding the Deep State jihad against Michael Flynn: Second Scope Memo – Rosenstein Authorizes Mueller to Target Michael Flynn Jr… I won't attempt to summarize all that's in the lengthy piece. Here my goal is relatively modest--to focus on the issues surrounding the FBI FD-302 that summarized the interview with Flynn, and served as the basis for his eventual guilty plea.

I'm sure everyone has heard a lot about FBI "302s", but it may be worthwhile to go over the basics.

Often you'll find it said that a 302 is an agent's "interview notes". That's both true and not true--or, not entirely true. When an agent conducts an interview--i.e, potentially, simply speaks to someone--but depending on circumstances, he may take written notes. Those notes will be retained as evidence in what used to be called a 1A envelope. Those notes serve as backup for and confirmation of the contents of the actual 302, which is formalized summary of the interview/contact/investigation when it is anticipated that it could become the subject of testimony at a trial. So, since it's a summary it's true to say that these are "notes," but they can be much more extensive than the handwritten notes.

If you're saying to yourself, wait a minute, that means a 302 is classic hearsay--you're right. But the 302 is nevertheless a powerful tool for the prosecution. Why that's so is explained at this very informative and readable blog: What is an FBI 302? The Problematic Nature of FBI Agents’ Interview Memos (note that the author correctly refers to the 302 as a "memo" rather than as "notes"). I'll summarize it a bit.


First the author describes the nature of a 302 as an interview memo. Then she moves on to describe the difficulties involved in creating such a memo. Simply put, these types of interviews are rarely scripted events. The aim is to get the interviewee talking and keep them talking. As a result the interview or, really, conversation may range over any number of topics. When it comes time to do the 302, however, the agent will want to stick to what he views as the essentials and construct an integrated and orderly account of what was said about those essentials. Much may be left out, not for nefarious reasons but simply in the interests of providing a connected account of the main topic of interest.

But all this can be used by an unscrupulous prosecutor (Yes, Virginia, such prosecutors do exist!) to exert enormous pressure on a defendant to plead guilty. And, in fact, the defend may well be guilty--of something. Or, maybe not. Here's how the dynamics of that situation work:

You may think that a 302 is simply an interview memo. 

It’s not. It’s much more. 

302s are a powerful tool for a prosecutor. Since the witness doesn’t generally take notes during an interview, it’s the only contemporaneous document capturing what was said. Plus, it’s the “official” record of the interview. It’s on a nice, official-looking form. The agent signs it, verifying its accuracy. Very credible stuff to a jury.

The time lapse between the interview and the use of the 302 works to the government’s advantage as well. White-collar investigations take a while. When Mr. McKinley is called to testify before the grand jury a few years later, he won’t remember what he said during the interview with any real clarity. The government can use the 302 to refresh his memory, whether the memo is 100% accurate or not.

As many other commentators have noted, an aggressive prosecutor can also use a 302 to intimidate a witness into cooperating by threatening a felony charge against the witness.

Going back to our example, let’s say Mr. McKinley told the agents during his interview that his co-workers didn’t bribe any doctors for Medicare business. But the agent writes down that Mr. McKinley said that his co-workers did bribe doctors. During the prep session with the government before his grand jury testimony, he tells the prosecutors that the co-workers never bribed anyone. They whip out the 302, showing him that, two years ago, he said that they did.

Mr. McKinley is now under incredible pressure to testify consistently with what was written in the 302 by Agent Starley, even if it is not correct. If he gives testimony different from what’s written in the 302, then Mr. McKinley opens himself up to a felony charge either for lying during the grand jury testimony (perjury) or making a false statement to the agent during the original interview.

A witness who was not represented by counsel during the interview cannot effectively challenge the accuracy of the 302. It becomes a witness-said/agent-said situation. And who is the jury going to believe? Two clean-cut FBI agents who insist the 302 is an accurate summary of what the witness said, or the witness?

In other words, a witness can be effectively coerced into testifying not to the truth of what happened but the “truth” as it was captured by the handwritten notes of an FBI agent. As explained above, the witness notes may not be accurate for all sorts of innocent reasons. It also may not be accurate because an FBI agent has a strong interest in finding evidence of a crime. [But, in fairness, often not as strong an interest as the prosecutor has, who may be looking to establish a prosecutorial reputation and then strike out into private practice.] 

The only silver lining to this whole situation is that 302s that capture exculpatory statements about the defendant must be disclosed under Brady, and the government must disclose 302s for testifying witnesses under the Jencks Act. 302s are a very effective discovery tool when they are disclosed to the defense after indictment. After a long investigation, you can finally learn what the witnesses said (or what the FBI agents heard).

The FBI clearly has a strong interest in maintaining its reputation and the reputation of its agents for fairness and integrity. It therefore instituted rules for timely reporting of interviews. I couldn't find any documentation, but I can tell you that in my time--and there's no reason to think it's any different now--we operated under what was known as the "Five Day Rule". You were supposed to get the interview finalized in 302 form within five days--and preferably sooner. The reason is obvious: 302s are represented as being the "contemporaneous" recollection of the agent and are used to refresh his recollection.

And that brings us to the FBI's interview of Michael Flynn. Flynn was interviewed on January 24, 2017, by Agents Peter Strzok and Joe Pientka. The 302 of that interview was finalized 3 weeks later on February 14, 2017. We know from the text messages that Strzok--whatever else he may have been--was a hard worker who got his paper work out ASAP. Any suggestion that he sat on his interview notes and delayed finalizing the 302 of this supremely important interview--the most important of his lfe, most likely--is simply a non-starter.

The real problem, as has been widely reported, is that Strzok and Pientka came back from their interview basically convinced that Flynn had been honest with them. The result was, as CTH puts it, that the 302 went through a "consultative" and "deliberative" process, which Andy McCabe--who wasn't even present at the interview--making suggestions for revisions.

This is hugely problematic for any claim that this 302 is a "contemporaneous" account of the interview, from two perspectives:

1. The time delay alone vitiates the claim to contemporaneity; and
2. The fact that a superior for the interviewing agents deliberated with them over the wording interjects both a non-witness perspective but also a motive for the agents to change their recollections.

It's simply an outrage.

Joe Pientka apparently objected to this and was, at the least, a hard sell. At last report, he was being interviewed by IG Horowitz, and this should have several people at the FBI and DoJ very worried. It should have them, as the phrase goes, considering their options.

Keep this in mind as things progress.

To wrap up what was supposed to be a brief note ...

The Mark Levin/Byron York interview was, IMO, really a very good overview and hit on some important issues: