Mr Mueller’s team was responding to a sentencing memo from Flynn’s lawyers criticising the FBI interviews with their client, saying agents did not provide him “with a warning of the penalties” for misleading investigators.
Mr Mueller, who is heading an investigation into Russia’s alleged interference in the 2016 election and possible collusion by the Trump campaign, hit back, saying: “A sitting national security advisor, former head of an intelligence agency, retired Lt Gen, and 33-year veteran of the armed forces knows he should not lie to federal agents.”
In a note to a judge in Washington DC, he added: “He does not need to be warned it is a crime to lie to federal agents to know the importance of telling them the truth. The defendant undoubtedly was aware, in light of his “many years” working with the FBI, that lying to the FBI carries serious consequences.”
Earlier this month, Mr Mueller told a court that the 60-year-old former general, who last year pleaded guilty to one charge of lying to the FBI over his contacts with Russian officials, among them Russia’s former US ambassador Sergey Kislyak, had been so cooperative he should not go to jail.
“His early cooperation was particularly valuable because he was one of the few people with long-term and firsthand insight,” prosecutors wrote. “The defendant deserves credit for accepting responsibility in a timely fashion and substantially assisting the government.”
They added: “Given the defendant’s substantial assistance and other considerations set forth below, a sentence at the low end of the guideline range – including a sentence that does not impose a term of incarceration – is appropriate and warranted.”
Despite Mr Mueller’s request that the judge should leniency when Flynn is sentenced on December 18, earlier this week, the former military officer’s lawyers filed their own document, claiming that then-FBI deputy director Andrew McCabe pushed Flynn not to have an attorney present during the questioning that ultimately led to his guilty plea on a single charge of lying to federal authorities.
“The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 USC 1001 before, during, or after the interview,” the lawyers wrote. “Prior to the FBI’s interview of General Flynn, Mr McCabe and other FBI officials ‘decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport’, one of the agents reported.”
In his response to the filing, Mr Mueller’s team attached two partly redacted documents, including notes typed on January 24 2017 by Mr McCabe about his conversation with Flynn.
“I explained to [Flynn] that my desire was to have two of my agents interview him as quickly, quietly and discretely as possible. He agreed and offered to meet with the agents today. We had some discussion about timing and ultimately agreed to conduct the interview at his office in the White House at 14.30 this afternoon,” Mr MCabe wrote.
“I explained that I thought the quickest way to get this done was to have a conversation between him and the agents only. I further stated that if [Flynn] wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice.
He added: “He stated that this would not be necessary and agreed to meet with the agents without any additional participants.”
In his message to the judge, Mr Mueller wrote that the “seriousness of the defendant’s offence cannot be called into question”.
He added: “While the circumstances of the interview do not present mitigating considerations, assuming the defendant continues to accept responsibility for his actions, his cooperation and military service continue to justify a sentence at the low end of the guideline range.”
The travails of Flynn are among several setbacks relating to people previously close to the president or his campaign. This week, a court in New York ordered Mr Trump’s former lawyer, Michael Cohen to go to jail for three years, after he admitted paying hush money to women on the eve of the election, at the behest of the man now sitting in the Oval Office.
Meanwhile, his former campaign manager, Paul Manafort, is due to be sentenced in March after the the collapse of his plea agreement on charges of conspiracy and obstruction of justice. In September, the 69-year-old pleaded guilty to charges of conspiracy and obstruction of justice.
That plea followed his August conviction in federal court in Virginia for bank and tax charges related to the work in Ukraine. He faces sentencing February 8 on those eight counts. USA Today said the combined punishments could “become a life sentence”.
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