Date: November 7th, 2019 10:16 AM
As a self-proclaimed adherent to Hanlon’s Razor, I once cynically viewed the frenzied focus on FBI actions during the 2016 Russian election-meddling investigation as partisan and overwrought. Hanlon’s Razor suggests that we never attribute to malice that which can be adequately explained by stupidity or incompetence. Having proudly served in the FBI for 25 years, I bristled at insulting accusations of an onerous deep state conspiracy. Some obvious mistakes made during the investigation of the Trump campaign were quite possibly the result of two ham-handedly overzealous FBI headquarters denizens, Peter Strzok and Lisa Page, clumsily seeking to impress each other with ever-increasing levels of loathing for then-candidate Donald Trump.
FBI employees are entitled to their own political views. But senior-level decision-makers who express them on government devices, while overseeing a supremely consequential investigation into a political campaign, simply do not possess the requisite judgment and temperament for the job.
Their stunning text message exchanges and talk of an onerous “insurance policy” in the event Trump were to win prove how ill-suited they were for their positions in James Comey’s cabinet. What other steps might they have taken that have yet to be discovered? The inspector general is soon set to release a report into FBI actions in the effort to surveil the Trump campaign. Attorney General Bill Barr’s Justice Department is conducting its own review, and U.S. Attorney John Durham recently expanded his investigation into the case as well, by converting the review into a full-blown criminal investigation. Barr has faced backlash from critics of his investigation, who ironically have referred to it as a witch hunt.
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But as we anxiously await the expected reports, there recently appeared some fairly explosive allegations into potential investigator misconduct that have not received the attention they deserve. With her filing of a blistering Motion to Compel against federal prosecutors in the Michael Flynn case just made public, Sidney Powell has upended my adherence to Hanlon’s Razor. Powell is the attorney for former national security adviser and retired Army Lt. Gen. Flynn, who pled guilty to one count of lying to FBI agents during the special counsel investigation. Powell’s motion seeks to unravel a case many feel was biased from its inception.
One of the most damning charges contained within Powell’s 37-page court brief is that Page, the DOJ lawyer assigned to the office of then-FBI Deputy Director Andrew McCabe, may have materially altered Flynn’s interview FD-302, which was drafted by Strzok. FBI agents transfer handwritten interview notes onto a formal testimonial document, FD-302, within five days of conducting an interview, while recollections are still fresh.
It is unheard of for someone not actually on the interview itself to materially alter an FD-302. As an FBI agent, no one in my chain of command ever directed me to alter consequential wording. And as a longtime FBI supervisor, I never ever directed an agent to recollect something different from what they discerned during an interview. Returning a 302 for errors in grammar, punctuation, or syntax is appropriate. This occurs before the document is ultimately uploaded to a particular file, conjoined with the original interview notes which are safely secured inside a 1-A envelope, and secured as part of evidence at trial.
With this in mind, this related text message exchange from Strzok to Page dated Feb. 10, 2017, nauseated me:
"I made your edits and sent them to Joe. I also emailed you an updated 302. I’m not asking you to edit it this weekend, I just wanted to send it to you."
Powell charges that Page directed Strzok to alter his Flynn interview 302. As in most instances in life, words matter. The change in wording was instrumental in moving Flynn from a target to a subject. One recalls how critical wording was in the FBI’s decision not to argue that DOJ charge Hillary Clinton with a crime in the private email server investigation. Comey elected not to use “gross negligence” to characterize Clinton's actions — which would have been the required language in the mishandling of classified information statute — and instead settled upon the more benign and non-indictable “extreme carelessness."
Later, it was determined that none other than Strzok was the impetus behind the recrafting of Comey’s words.
Powell’s motion requests that Flynn’s case be dismissed. Central to this appeal are details surrounding Flynn’s first interview by the FBI on Jan. 24, 2017. Recall also how Comey famously told NBC’s Nicolle Wallace, in front of an audience, that Flynn was visited by FBI agents at the White House in chaotic early days of Trump transition because, in Comey’s words, “I sent them.”
Comey received warm laughter for his quip from an appreciative audience, reveled in the adulation, and further elaborated, providing this shockingly partisan move:
"Something we've — I probably wouldn't have done or maybe gotten away with in a more organized investigation — a more organized administration. In the George W. Bush administration, for example, or the Obama administration. The protocol, two men that all of us perhaps have increased appreciation for over the last two years. And in both those administrations there was process. And so, if the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House Counsel and there'd be discussions and approvals and it would be there. And I thought, it's early enough, let's just send a couple of guys over. And so, we placed a call to Flynn, said, hey, we're sending a couple of guys over. Hope you'll talk to them. He said, sure. Nobody else was there. They interviewed him in a conference room in the Situation Room, and he lied to them. And that’s what he’s now pled guilty to."
So, did an accomplished 3-star general actually misrepresent the truth? Or, was his recollection of events later spun to be a mendacious accounting by overzealous investigators who followed their boss’s lead, while circumventing established protocol in an ambush-style interview? What apparently followed was a “tweaking” of the accounting to ensure Flynn be charged with Title 18 USC § 1001 – something I have long argued was never charged by any U.S. Attorney’s Office during my time serving in the FBI unless we wanted to threaten it and employ as leverage.
Setting aside valid arguments that the FBI acted inappropriately — treating the Trump White House differently than they would have treated Bush’s or Obama’s, as the hubristic Comey proudly admits — Powell’s charges of egregious government misconduct are certainly deserving of the court’s consideration. The withholding of clearly exculpatory material related to revelations that “important substantive changes were made to the Flynn 302” may well be central to the findings of Inspector General Michael Horowitz and Durham, as well.
Here’s me, acknowledging my mistake. I was dead wrong. It now seems there was a concerted effort, though isolated, within the upper-echelons of the FBI to influence the outcome of the Flynn investigation. By “dirtying up” Flynn, Comey’s FBI headquarters team of callow sycophants shortcut the investigative process. Arm-twisting Flynn through the “tweaked” version of his interview afforded him criminal exposure. The cocksure Comey team felt supremely confident that would inspire him “flipping” and give them the desperately sought-after evidence of Trump-Russia collusion that the wholly unverified Steele dossier was never remotely capable of providing.
I am physically nauseous as I type these words. I have long maintained that innocent mistakes were made and that the investigators at the center of this maelstrom were entitled to the benefit of the doubt.
They have tarnished the badge and forever stained an agency that deserved so much better from them. I am ashamed. The irreparable damage Comey’s team has done to the FBI will take a generation to reverse.
I ashamedly join Hanlon’s Razor in getting this one wrong.
James A. Gagliano (@JamesAGagliano) worked in the FBI for 25 years. He is a law enforcement analyst for CNN and an adjunct assistant professor in homeland security and criminal justice at St. John's University.