For seasoned FBI vets, who typically want to stay away from bashing the bureau, the case of former National Security Adviser Michael Flynn presents a difficult challenge.
It puts their desire to not talk negatively about the nation’s top law enforcement agency to the test.
James A. Gagliano, a 25-year FBI veteran who currently teaches at St. John’s University, faced that situation.
“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,” Gagliano wrote in an Op-Ed published Tuesday in the Washington Examiner.
“Hanlon’s Razor suggests that we never attribute to malice that which can be adequately explained by stupidity or incompetence,” he wrote. “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.”
As Gagliano noted, Strzok and Page’s texting is now part of two ongoing investigations and one wrapping up over at the inspector general’s office. However, he’s a bit more concerned about something else: how political bias might have affected Flynn’s criminal case.
The case took another strange turn this week when Flynn asked a judge to throw out the case against him based on “egregious government misconduct and in the interest of justice.” That misconduct, according to a 37-page court document, included an allegation that the FD-302 form from Flynn’s interview with FBI officials was altered by higher-ups at the bureau.
“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,” Gagliano wrote.
But what’s more important is who originally wrote the notes for Flynn’s FD-302 and who allegedly altered it.
The notes were taken by Strzok, one of the agents who interviewed Flynn. The alterations were done by Page, who was then working in the office of Andrew McCabe — the former FBI deputy director who was fired from the agency just before his scheduled retirement based on an inspector general report that found he had lied to investigators and authorized improper leaks.
“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,” Gagliano wrote.
Strzok sent Page this text message on Feb. 10, 2017, a message that Gagliano said “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.”
“[Flynn attorney Sidney] Powell charges that Page directed Strzok to alter his Flynn interview 302,” Gagliano wrote.
“As in most instances in life, words matter,” he wrote. “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.'”
Gagliano also pointed to a December 2018 interview in which former FBI Director James Comey admitted that he had sent FBI directors over to interview Flynn using a different protocol than he would have followed during the Bush or Obama administrations.
“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,” Comey said.
“And in both those administrations there was process,” he said. “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.”
Gagliano has lost faith in the FBI, at least when it comes to the Flynn investigation. He’s no longer a Hanlon’s Razor believer.
I wasn’t from the beginning — I don’t ever remember hurling “insulting accusations of an onerous deep state conspiracy,” but I had noticed the odd history of Flynn’s 302s before this and felt that it merited investigating. However, the point is that if the filing has even a modicum of truth to it, it’s impossible to attribute this to stupidity.
The former FBI agent now believes “there was a concerted effort, though isolated, within the upper-echelons of the FBI to influence the outcome of the Flynn investigation.” That effort, according to Gagliano, was supposed to compromise Flynn and yield information on the Trump-Russia front. That, uh, didn’t quite pan out as they had planned, if indeed they had planned it.
Looking back at how his opinions have changed, Gagliano said he was “physically nauseous” as he admitted that, yes, there is the possibility that some in the FBI locked themselves into a false narrative and ended up unfairly netting Flynn in the process.
“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,” Gagliano wrote. “No more.”
“I ashamedly join Hanlon’s Razor in getting this one wrong.”
Well, if I got physically nauseous at every alleged perfidy that Peter Strzok describes in his text messages, given my job description, I’d have last eaten a meal sometime in the summer of 2017.
That being said, if a 25-year FBI veteran who shudders at the thought of “deep state conspiracy” theories admits that there’s a bit more to this than just idle Infowars-ing, it’s worth paying attention to.
The Flynn case isn’t over yet, and while I would caution anyone against believing it’s the key to all Strzokian mythologies, it could end up revealing something monumentally ugly about the bureau’s post-election appetite for all things Trump.
If it does, prepare for another round of GIF-worthy Peter Strzok faces and more emo photos of Jim Comey walking in the forest — as well as a lot more FBI partisans beginning to distance themselves from what a certain corner of the FBI’s aristocracy did while pursuing the chimera of Russian collusion.
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