The Barnett 302

I'll do this in a sort of impressionistic way--concentrating on overall impressions taken from the FD-302 of FBI Agent William Barnett. That "302" memorializes the interview of Barnett that was conducted by FBI agents and prosecutors investigating the handling of the Michael Flynn case.

First of all, imagine how Barnett felt going into this interview, and what the circumstances of the interview tell us.

Barnett, a law enforcement official of the federal government, had hired an attorney to be present with him at the interview--even though he was just a witness. He may have been just a witness, but he knew this was a high stakes interview and he couldn't simply trust to his own integrity.

He was interviewed by two FBI agents and two federal prosecutors--one of them Jeffrey Jensen, a USA who had also been an FBI agent. Barnett knew there'd be no BS-ing his way through this interview, and that this interview was supremely important from the government's standpoint.

Right at the start we learn something very important. Barnett had worked on both the Flynn and Manafort investigations. In fact, he was the case agent for both investigations at the FBI's Washington Field Office (WFO), having been specifically recruited to join the Crossfire Hurricane (CH) team by SSA Joe Pientka. He continued working those cases once Team Mueller was set up. That means that he would have interacted regularly with the prosecutors who led those investigations for Team Mueller. We learn later that Barnett is able to recall the attitudes and words of Jeannie Rhee and Andrew Weissmann, so it's a good guess that Durham/Jensen are very much interested in those two Team Mueller alumni.

As Barnett explained himself to USA Jensen, four years after the fact, his overall attitude toward the entire Russia Hoax/CH investigation was that it was "supposition on supposition" with little evidence of any criminal activity. Later Barnett draws a distinction between the Flynn and Manafort investigations. He believed that there was substance to the Manafort investigation but claims to have always doubted that there really was any logical predication for investigating Flynn. In that regard he mentions his doubts regarding two specific incidents that were cited as supporting predication to open a Full Investigation on Flynn: Flynn's speech in Moscow, and what we now know was the hoax regarding the supposed relationship between Flynn and Svetlana Lokhova. As it is, the interview appears to have focused largely on the Flynn ("RAZOR") case.

A major focus of the interview, unsurprisingly, was: just who was in charge? Who directed the investigation of Flynn (Manafort takes a back seat in this interview)? The answer, from Barnett's perspective, was that in the first stage of the investigation, from startup up to the decision to keep the Flynn case open was made on January 4, 2017, the person who ran the investigation was Peter Strzok. In other words, the Flynn case and CH generally, was operated mostly by a small cadre of FBIHQ managers. Not only did Strzok decide on the opening and closing of the Flynn case, but even routine investigative decisions such as whether to seek National Security Letters (NSL) were made by Strzok--without any explanation being offered to the case agent, Barnett. As Barnett puts it later in the interview, the Flynn case was run "top down."

The result was that very little real investigation of Flynn ever took place. Instead, the open case appeared to Barnett to be a sort of placeholder--a case without real predication that was being kept open "just in case". Just in case Flynn became a target of opportunity (as in fact happened) and the FBI could then say, Oh yeah, we've been investigating him as a foreign agent all along--to provide added credibility to the setup interview of Flynn. 

That, of course, is not how investigations are supposed to be managed. In this regard, there are signs in the 302 that this write-up may be only one of several. For example, regarding the lack of predication and the lack of actual investigative activity, the 302 briefly notes that Barnett mentions a "very frank discussion" on that score with "Analyst 1." But no details. I suspect a more detailed account of that aspect exists.

This perspective on how the Flynn investigation was managed is important, because it narrows down USA Jensen's focus on the Flynn case. Presumably, Barnett's account will also be supported by or will confirm what Joe Pientka has already told investigators regarding who directed it all. This in turn will help Jensen to pin the decision on opening a basically unpredicated Full Investigation of Flynn on Strzok--and possibly others above Strzok.

Pientka's role in all this is interesting. That role is touched on twice. We've already pointed out that it was Pientka who recruited Barnett for the CH Team. It appears that Pientka was trusted by Strzok and worked closely with Strzok--for example, handing Ohr off to Pientka indicates a high degree of trust and confidence. So my guess is that Strzok instructed Pientka to recruit agents for the CH Team who could be relied upon to go along with the plan. From Barnett's account, it doesn't appear that great initiative was a requirement, since he emphasizes that his role--unlike what would usually be expected of a case agent--was basically to follow instructions and not ask questions. 

I would anticipate that Pientka has been debriefed on his relationship with Strzok. Pientka, on the other hand, appears not to have been totally candid with Barnett. Barnett mentions that Pientka apologized for interviewing Flynn without informing Barnett, the case agent--offering a somewhat lame excuse to Barnett. In fact, we know that Pientka had probably been preparing for such an interview for months, since he was selected to give the National Security briefing to Trump and Flynn for that specific purpose--to assess Flynn for possible interview purposes. Barnett surmised in hindsight that he had been "cut out" of the interview, a fact that would be probative of a theory of prosecution that the Russia Hoax/CH investigation was in fact a closely guarded conspiracy, entry to the inner counsels of which was carefully restricted.

It was only after the Flynn interview that Pientka seems to have had serious doubts about what was going on, having realized that Flynn was an innocent man being targeted by Strzok and a small group at FBIHQ. It was at that point that Pientka tried to distance himself from the Russia Hoax, and that Strzok tried to insulate Pientka from further involvement. From that point of view, Barnett's corroboration of Pientka could be very useful at trial, and if Pientka can confirm that Barnett's surmise of being "cut out" of the interview is correct, that too would be very useful.

This, I believe, is the major takeaway from Barnett's account of the Flynn case up to the interview of Flynn. It appears that Jensen's focus for that period is twofold:

 

1) To confirm that there were significant doubts among the investigators and analysts that there was any real predication for investigating Flynn. If they had doubts, then their superiors running the investigation out of FBIHQ would have realized how baseless the case was. In that regard, Jensen questioned Barnett regarding his discussion of predication with disgraced former FBI attorney Kevin Clinesmith. Basically, Clinesmith confirmed to Barnett that there had been no additional predication for the Flynn investigation as of early 2017.

2) To confirm that the investigation--such as it was--was directed from the top down by Peter Strzok and a "small group" at FBIHQ.

Turning to Barnett's account of his time with Team Mueller, Jensen's focus again appears to be twofold.

On the one hand, Barnett offers a lot of anecdotal detail concerning a "get Trump" attitude on the part of the Team Mueller attorneys. The phrase alone "get Trump" is highly suggestive. While we all know that the whole purpose of Team Mueller was, in fact, to "get Trump," that was not the actual mandate of Team Mueller. The actual mandate was, at least for public consumption, to investigate "links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump." But in Barnett's telling it was all about getting Trump--every person interviewed was pressed to incriminate Trump in some way, regardless of facts or evidence. In that regard, Barnett singles out such Team Mueller luminaries as Jeannie Rhee, Andrew Weissmann, and Andrew Goldstein as particularly rabid in their refusal to accept facts at face value. 

An interesting but all too brief passage concerns Robert "Bob" Mueller, and highlights his Captain Ahab-like tendency to get fixated on erroneous theories of a case--a tendency that he has repeatedly exhibited throughout his career. Speaking of the attempt to prove some sort of "quid pro quo" in the Flynn - Kislyak phone calls that could also involve Trump, Barnett relates:

MUELLER described [KT] MCFARLAND as the "key to everything" because MCFARLAND was the link between TRUMP, who was at Mar-a-Lago with MCFARLAND, and FLYNN, who was in the Dominican Republic on vacation, when [REDACTED: calls?] were made.

MCFARLAND was interviewed on numerous occasions.

In other words, Mueller--and presumably the rest of his "all stars," had a conviction of Trump's guilt and a theory to match it, and couldn't let the facts get in the way. In the most benign interpretation, Mueller's conviction was based on the assumption that the communications between Flynn and Kislyak couldn't possibly have been normal course of business--collusion and a quid pro quo was a given. However, a less benign interpretation is possible, since Mueller and the entire Team Mueller had the transcripts of the phone calls.

That mentality led to interview tactics that Barnett considered questionable from an objective investigative standpoint. Barnett describes the numerous interviews of McFarland as being very "general," lacking in follow up questions. He attributes this tactic to a desire to elicit general responses that could be spun by Team Mueller for their desired ends. He describes that interview tactic also with regard to interviews--also numerous--of Michael Flynn. The picture we get is of prosecutors attempting to wear down people into saying things in a way that could be used against Trump.

This mentality on the part of Team Mueller also led to repetitive, obsessive going over the same ground in interviews, based on assumptions that had no solid basis--what Barnett described as "astro [sic: astral?] projection." It also led to wild goose chases for the elusive "quid pro quo" that consistently led to dead ends.

My references to "Team Mueller" in the foregoing account suggests the other major focus for Jensen. When I referred to "Team Mueller" it is very apparent from the 302 that it's the attorneys who took the lead in everything. The investigative agents were pretty much just along for the ride. Here's how Barnett describes it:

BARNETT said working with the SCO was a very unique environment for him. Typically investigators push for legal process and have to explain the need for the request to the attorneys. BARNETT said the SCO attorneys were pushing for legal process and just wanted investigators to sign affidavits they prepared. Everything was "green-lighted" by the SCO, i.e., you could get whatever legal process you wanted. BARNETT did not see the investigator/attorney relationship as 50/50. At the SCO, BARNETT believed the investigators were looked at as a "speed bump" to the attorneys who were leading the investigation. BARNETT said the investigators assigned to the [REDACTED] and RAZOR investigations were doing what they were assigned to do.

This topsy turvey management of the investigation takes on special significance when the choice of highly partisan attorneys for Team Mueller is taken into consideration. If the investigation is conducted by impartial investigators, it may not matter as much if the prosecutors are biased. However, if the prosecutors are highly biased and also--for most intents and purposes--conduct the investigation, then the entire investigation has to be considered suspect. It begins to look, in fact, like ... a Witchhunt. 

The business about the attorneys simply presenting the agents with affidavits to sign is troubling, as well. In my experience, many agents were happy to let prosecutors prepare all affidavits--and the prosecutors felt the same way. They didn't trust most non-lawyer agents to get things right (I wrote my own affidavits and didn't trust the AUSAs). In those cases, however, the prosecutors were working off agent produced 302s that recorded investigation that the agents had conducted. Agents could question the use to which their own work product was put by the prosecutors--although, admittedly, that was unlikely to happen. In the case of Team Mueller, however, what we see are the prosecutors basically doing the investigation and then writing up affidavits in support of legal process which they presented to a judge as if they had been written by the agents. In other words, they were concealing who the real investigators were as well as playing fast and loose with probable cause ("green-lighted"). I'm not sure how far Jensen and Durham can go with this, but it's illustrative of real problems in the federal criminal justice system. It also illustrates how repugnant the idea of "special counsels" should be to any sense of justice and fair play.

However, what I see this aspect of the interview supporting is, once again, a prosecutive theory in which a small group of highly partisan actors misdirected government resources for a purely partisan political end that lacked any plausible predication. This could, with proper factual support, be argued to be part of a conspiracy to defraud the government of honest services--and possibly other violations, as well. If you look back at what Barnett is describing with regard to Team Mueller, you can see that at bottom the common denominator has to do with issues of basic honesty, i.e., fraud. That's something to keep in mind as we go forward.

Also keep in mind that Jensen and Durham have certainly interviewed Kevin Clinesmith in depth regarding all the issues raised by Barnett's interview(s). The Barnett interview--and probably interviews of other participants on Team Mueller--is likely to be just one part of the case that is being constructed. With what success, time will tell.

ADDENDUM: Commenter AmericanCardigan has provided a quote from Andrew Weissmann that offers a stunning illustration of what Team Mueller was actually all about:

Here's Mr. Wonderful's recent Political article from his recent book justifying his existence as the best prosecutor in the U.S. In his words "Barr’s letter (March 24, 2019) was a shot across the bow, signaling that the checking function Mueller provided on the actions of the president had come to an abrupt end." Weissmann's thinking here is that the SOC was intent on sticking around for the long haul to serve as a separate function to prepare to pounce on the Executive branch for the term. Unbelievable. https://www.politico.com/news/magazine/2020/09/25/andrew-weissmann-book-excerpt-special-counsel-421441

I think I know what the predication for an investigation is--or should be. But what would be the predication for a "checking function"?