Flynn was recorded by the FBI/CIA because he was speaking on the phone with the Russian diplomat Kislyak. There was no need to get a FISA warrant to conduct surveillance on Kislyak’s phone calls.
That is true. But they were deceptive. They were investigating him but told him he was not under investigation and needed no lawyer. They already had the transcript, so in one sense it was a process crime trap. They quizzed him on the conversation - but they already knew what was said. Comey admitted that he sent the agents in hoping the transition team would not be prepared to provide him legal representation. And if he had legal representation during questioning the lawyers could have asked if they had a transcript of the call - the contents of the conversation/transcript speak for themselves. They were just trying to entrap him.
I realize this may not be his current legal argument but to me this much is obvious. Why ask about the contents of a conversation to which you already had recorded, if not trying to catch him in a lie to charge him for lying to the FBI? Entrapment.
For example, the FBI chose Flynn on Aug. 16, 2016, to be one of four Trump campaign advisers to be investigated in any Trump-Russia election conspiracy.
The next day, it sent an agent described as supervisory special agent 1 (SSA1) to visit Trump campaign headquarters under the guise of delivering a defensive briefing on Russia. The real reason: Flynn planned to attend and the FBI wanted to collect information on him, according to the IG.
Mr. Horowitz testified to a Senate panel that there was never any defense briefing to alert Trump people on what the Kremlin was doing to interfere in the election.
The FBI did not seek Justice Department approval before meeting with the campaign on Aug. 17, the IG said.
“SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for ‘investigative purposes’ anything Mr. Flynn and Mr. Trump said in that meeting,” Ms. Powell argued.
SSA 1 is agent Joe Pientka, a supervisor in Crossfire Hurricane, the FBI Trump probe headed by agent Peter Strzok, who later was fired for misconduct. It was the Strzok-Pientka tandem who visited Flynn at the White House on Jan. 24, 2017.
However, the FBI (Domestic) and CIA (State Department nexus overseas) are not the correct agencies to do this surveillance; it is the NSA.