On Wednesday, The New York Times reported that Justice Department officials asked a former FBI official to buttress their claims of misconduct in the case against former National Security Adviser Michael Flynn, as part of their basis for moving to dismiss — and after he refused to do so, they did not include their interview with him in their report to the federal judge overseeing the Flynn case.
"Department officials reviewing the Flynn case interviewed Bill Priestap, the former head of F.B.I. counterintelligence, two days before making their extraordinary request to drop the case to Judge Emmet G. Sullivan," reported Adam Goldman and Katie Benner. "They did not tell Judge Sullivan about Mr. Priestap’s interview. A Justice Department official said that they were in the process of writing up a report on the interview and that it would soon be filed with the court."
"The department’s motion referred to notes that Mr. Priestap wrote around the bureau’s 2017 questioning of Mr. Flynn, who later pleaded guilty to lying to investigators during that interview," continued the report. "His lawyers said Mr. Priestap’s notes — recently uncovered during a review of the case — suggested that the F.B.I. was trying to entrap Mr. Flynn, and Attorney General William P. Barr said investigators were trying to 'lay a perjury trap.'"
"That interpretation was wrong, Mr. Priestap told the prosecutors reviewing the case," said the report. "He said that F.B.I. officials were trying to do the right thing in questioning Mr. Flynn and that he knew of no effort to set him up. Media reports about his notes misconstrued them, he said, according to the people familiar with the investigation."
This interview, and the decision of DOJ investigators not to disclose it to Judge Sullivan, could complicate their attempts to persuade the judge to dismiss the case. Judge Sullivan has already expressed concerns with the DOJ's push, and has encouraged third parties to submit friend of court briefs on the matter.