Huge News II

Where it all started, on a Dominican beach. Maybe not this one. Via CNN Travel.

The primary subject of the Yates hearing, of course, was dear old General Flynn, and his panicky series of phone calls when he was on vacation in the Dominican Republic at the end of December 2016, after President Obama decreed a new set of Russia sanctions to punish Russian interference in that year's presidential campaign, in which he advised Ambassador Kislyak on how the Russian government should respond, or rather not respond, to facilitate the Trump decision to make sure the Russians wouldn't be punished after Trump entered office; and, as Yates said,

these were not conversations that were just off the top of his head. But rather, he had been coordinating all of this with his Deputy National Security Advisor [K.T. McFarland], who was at Mar-a-Lago with other transition team members. And it was a very deliberate planned set of conversations with the Russian Ambassador to essentially tell them, “Don’t worry about it. Things are going to change what’s... in place.”

Following which, whoever knew about the calls (and it's still not clear who that was, beyond Flynn and McFarland) decided to keep their content a secret from those who didn't (starting, perhaps, with Mike Pence and Reince Priebus and Sean Spicer and going on to everybody else), to the extent of lying about it to the general public and to the FBI, the latter of which is illegal.

I want to talk about how Republicans have tried to turn this story into the story of a crime committed by the FBI against General Flynn, as represented in the rhetorical gyrations of Lindsey Graham's questioning of Sally Yates last week, but first it's a good idea to work through the known facts, of which I keep getting a better idea.

The day after the calls, Putin announced that he wasn't going to retaliate against the new sanctions, and Trump issued a tweet applauding him for the decision, and this unexpected development got the wind up the Obama White House, which issued a general request to the intelligence community for any relevant information they might have on why Putin might have made this uncharacteristic move (I'm citing from Andrew McCabe's 2019 memoir, The Threat). The FBI had some. 

The FBI had happened to record the Flynn-Kislyak conversations of 29-30 December in the pursuit of some investigation they're unwilling to identify (perhaps the counterintelligence investigation that continues to be kept secret?), and these looked like a kind of explanation of Putin's strange behavior: that Flynn had asked him for it. This caused a flurry the following week as the news moved from McCabe, who heard it from an analyst, to FBI director Comey, and from Comey to DNI Clapper, and from Clapper to Obama (on 4 January) and Obama called a meeting with representatives of the intelligence community and Justice Department the following day, with the purpose of finding out whether it was safe for him, in view of these interactions between Kislyak and Flynn, to share intelligence with the incoming National Security Adviser. Yates again:

that meeting was not about an investigation at all. And I can tell you that that is something that would have crossed the line. And if President Obama, or Vice President Biden, or National Security Advisor Rice was in any way trying to influence an investigation, that would have set off alarms for me. This was not about that. This was about the National Security implications of continuing to share sensitive information with General Flynn, given what they had learned about his back channel discussion with the Russian Ambassador to neuter the sanctions.

Sally Yates (sitting in at the meeting for AG Lynch) was perturbed that nobody had told her about this crazy development, until Comey explained he'd just learned about it the day before and had assumed the intelligence people would tell her. Somebody (possibly Biden) wondered if Flynn should be prosecuted for violating the 1799 Logan Act against private citizens secretly negotiating foreign policy with foreign governments in defiance of the US government, which had never been enforced. But the FBI itself did nothing at all, other than deciding to wait before closing the investigation on Flynn, as Strzok had previously decided they should do by 4 January. That changed when Washington Post's David Ignatius got wind of the story and mentioned it in his Washington Post column on 12 January, with the first reaction coming from Trump himself:

President-Elect Trump called Priebus after the story was published and expressed anger about it.124 Priebus recalled that the President-Elect asked, “What the hell is this all about?”125 Priebus called Flynn and told him that the President-Elect was angry about the reporting on Flynn’s conversations with Kislyak.126 Flynn recalled that he felt a lot of pressure because Priebus had spoken to the “boss” and said Flynn needed to “kill the story.”127 Flynn directed McFarland to call the Washington Post columnist and inform him that no discussion of sanctions had occurred.128 McFarland recalled that Flynn said words to the effect of, “I want to kill the story.”129 McFarland made the call as Flynn had requested although she knew she was providing false information, and the Washington Post updated the column to reflect that a “Trump official” had denied that Flynn and Kislyak discussed sanctions. (Mueller II:29)

Flynn also made representations to Mike Pence and Sean Spicer that he had not discussed any sanctions with Kislyak, so that they could go on TV and tell the world it hadn't happened.

The FBI and the rest of the intelligence community, of course, didn't know anything about the goings-on in the Trump team. but they knew Flynn's denial wasn't true, and so did Yates at DOJ, who was now especially worried that the Russians had kompromat information on Flynn: they seemed to have incontrovertible evidence that Flynn had lied to Pence and Spicer and the public about the calls, and might be able to use this as leverage to get him to cooperate with some nefarious plan. But they still didn't do anything about it until after the inauguration, on the 24th, when McCabe asked Flynn to have a conversation with a couple of FBI agents (one of them Peter Strzok), and he told them he and Kislyak had not discussed sanctions at all, and the agents debriefed McCabe:

It was a very odd conversation. The agents kept saying, It seemed like he was telling the truth. The rest of us kept saying, Yes, and it completely contradicts the information we have. And their response was, Yeah, we know, it's weird. They weren't saying they believed him, and they weren't saying they didn't believe him. They struck me as being mainly surprised by the encounter.

Once again we see Strzok, the chief Trump-hating villain of the Republicans' case against the FBI, refusing to believe the evidence of his own eyes rather than accept that anybody connected with Trump had done anything wrong.

But Yates decided it was time to tell the new administration, and went to see the White House counsel Don McGahn (who was especially surprised Flynn hadn't told him about the FBI interview). And still nothing happened—except Sally Yates got fired (ostensibly for telling Trump, correctly, that his Muslim ban was unconstitutional, and I don't see why that wouldn't be true), and Trump had a long phone conversation with Putin with Flynn sitting there in the room listening in, which seems like a thing that shouldn't have happened—until 10 February, when McGahn asked McCabe to meet him in the vice president's office with Pence and Priebus and the three of them asked to be briefed on the information concerning Flynn.

McCabe cleared the idea with an FBI lawyer, called somebody to bring him the relevant files, and met the three in the Situation Room, and Pence began to read:

The opening passages were not very interesting or germane, and Pence was saying things like, Oh, this is fine. No problem with this. Fine, fine, fine. I said, Keep reading. He reached the part that we had been focused on, and immediately his face changed. His expression turned very cold. It hardened. His reading became very focused. His head shook, but barely—tiny shakes of no. He spoke very little. He said a few things along the lines of I can't believe this, and This is totally opposite, and It's not what he said to me.

Moments later, Pence and the others returned what I had brought them, they stood, and then Mike Pence composed himself, ever the gentleman, and shook my hand and thanked me. Three days later, Flynn resigned.

I'm really interested in that portrait of Pence. It's long seemed to me that everybody in the Trump team knew about the calls and the discussion of sanctions, based on the very clear evidence of the Mueller report (none of which, of course, was known to the FBI in February 2017)—

McFarland had spoken with incoming Administration officials about the sanctions and Russia’s possible responses and thought she had mentioned in those conversations that Flynn was scheduled to speak with Kislyak.83 Based on those conversations, McFarland informed Flynn that incoming Administration officials at Mar-a-Lago did not want Russia to escalate the situation.84 At 4:43 p.m. that afternoon, McFarland sent an email to several officials about the sanctions and informed the group that “Gen [F]lynn is talking to russian ambassador this evening.”85

Approximately one hour later, McFarland met with the President-Elect and senior officials and briefed them on the sanctions and Russia’s possible responses.86 Incoming Chief of Staff Reince Priebus recalled that McFarland may have mentioned at the meeting that the sanctions situation could be “cooled down” and not escalated.87 McFarland recalled that at the end of the meeting, someone may have mentioned to the President-Elect that Flynn was speaking to the Russian Ambassador that evening.88 McFarland did not recall any response by the President-Elect.89Priebus recalled that the President-Elect viewed the sanctions as an attempt by the Obama Administration to embarrass him by delegitimizing his election.90 (Mueller II:25)

—even though Priebus was so vague about it, and McFarland so vague about Trump's participation in the discussion, all the parts of a discussion of Flynn's and Kislyak's conversation on sanctions are present in those couple of hours, all over the club. And it seemed obvious to me that Pence, as the head of the transition team, must have known about it too, though I can't find out where he was.

McCabe's description made me doubt that at first, with its account of Pence's cold rage, but then I started thinking: this is a solid month they've been thinking about it after the Ignatius column, and almost three weeks after Yates had told McGahn that Flynn had been lying, McGahn told Trump, and Trump

instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. (32)154

And about two weeks after Trump's peculiar dinner with Comey where he asked Comey if he wanted to keep his job and told him several times, "I need loyalty," and almost incidentally

Later in the dinner, the President brought up Flynn and said, “the guy has serious judgment issues.”176 Comey did not comment on Flynn and the President did not acknowledge any FBI interest in or contact with Flynn. (35)

And a week after Trump's national security counsel John Eisenberg had prepared a memo on Flynn's criminal exposure (in which he was unable to make firm recommendations because none of them knew what Flynn had told the FBI), and a few days after a tense Trump meeting with Flynn:

The week of February 6, Flynn had a one-on-one conversation with the President in the Oval Office about the negative media coverage of his contacts with Kislyak.193 Flynn recalled that the President was upset and asked him for information on the conversations.194 Flynn listed the specific dates on which he remembered speaking with Kislyak, but the President corrected one of the dates he listed.195 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions. (36)

Which, when you put it all together, makes it look as if McGahn and Priebus had set up the McCabe-Pence meeting on 10 February not only as a way to find out just what the FBI had on Flynn, but also for Pence to make a huge show of how he knew nothing about it, upon which they could fire Flynn on the 13th, on the exclusive grounds that "he had lied to the vice president" without acknowledging that anybody had done anything else wrong at all—

Flynn said he wanted to say goodbye to the President, so Priebus brought him to the Oval Office.211 Priebus recalled that the President hugged Flynn, shook his hand, and said, “We’ll give you a good recommendation. You’re a good guy. We’ll take care of you.” (38)

—at least, if the FBI dropped its investigation of Flynn, which you'll recall is what Trump started working on in his next interactions with director Comey, immediately following his Valentine's Day lunch with Chris Christie, in a meeting with Comey and others that afternoon, after shooing Sessions and Kushner out of the office.

According to Christie, at one point during the lunch the President said, “Now that we fired Flynn, the Russia thing is over.”216 Christie laughed and responded, “No way.”217 He said, “this Russia thing is far from over” and “[w]e’ll be here on Valentine’s Day 2018 talking about this.”218 The President said, “[w]hat do you mean? Flynn met with the Russians. That was the problem. I fired Flynn. It’s over.”219

.... According to Comey’s account of the meeting, once they were alone, the President began the conversation by saying, “I want to talk about Mike Flynn.”235 The President stated that Flynn had not done anything wrong in speaking with the Russians, but had to be terminated because he had misled the Vice President.236

So I'm returning to seeing Pence as another of the liars in the case.

Getting back to Wednesday's hearing, what did Senator Graham want to talk about? Not the FBI's actual concerns, as introduced in Yates's opening statement, that "By late December, our intelligence community had determined that Russia acting on the direct orders of President Vladimir Putin, had engaged in a massive effort to undermine faith in our democratic processes, to hurt Hillary Clinton’s chance of electability, and to aid the candidacy of now President Donald Trump. The Russian government had used cyber attacks, the strategic release of stolen information, and a coordinated campaign to weaponize social media against American citizens." He wants to talk about Carter Page and the Steele dossier, in the first place:

Mr. Graham: (34:20)
Let’s talk about that conduct right quick. We’re talking about using a document that came from a Russian sub source to get a warrant against an American citizen repeatedly that was full of garbage. Does that bother you?

Sally Yates: (34:35)
Well, I’m not sure that I agree with your characterization.

Mr. Graham: (34:39)
Does it bother you that the FISA Court rebuked the Department of Justice and FBI regarding the Carter Page warrant application?

Bamboozling her into saying the flaws of the FISA application on Page were mostly incorrect information rather than important information left out;

Sally Yates: (35:21)
I wouldn’t sign anything that I knew to contain errors or omissions.

Mr. Graham: (35:25)
Well, did that contain errors and omissions?

Sally Yates: (35:27)
Yeah. And I would never knowingly sign a document. I didn’t do that in the 27 years, I was [crosstalk 00:35:33]-

Mr. Graham: (35:34)
I believe you didn’t know. I believe you didn’t know that what you signed was wrong. The question is if you had known you wouldn’t of signed it, is that correct?

Sally Yates: (35:41)
No. If I had known that it contained incorrect information, I certainly wouldn’t have signed it.

Mr. Graham: (35:45)
Thank you. And do you agree with me, it did contain incorrect information?

Sally Yates: (35:50)
I know that now based on the Horowitz report.

And then the Logan Act, which is the central theme of his opening statement:

We need to make sure going forward in the next transition, no matter who wins, that you can talk with foreign leaders without being afraid of going to jail. General Flynn wasn’t talking to the Russians about, “Hey, pay my house off. Give me money.” He was talking to the Russians about, “Don’t escalate the sanctions. Fight. Give us a chance to come in and we’ll start over.” My God, if that’s a violation of the law, God help us all.

The Logan Act does not criminalize "talking with foreign leaders" or asking them to pay one's house off but

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States

After an anti-Federalist physician, George Logan, who went to revolutionary France in 1798 and advised them to win American friendship by releasing some prisoners and lifting an embargo on American goods, an achievement that enraged the Federalist Adams administration, which favored Britain against France in the ongoing European war—which is extremely comparable with the Republican Mike Flynn advising Russia to win American friendship by not putting sanctions on us, in opposition to the Democratic administration which was in a kind of Quasi-War with the Russian state. You may feel, by the way, as I have always felt, and as the republic decided in the 1800 election, that we'd have been better off siding with France. That's not the issue. The issue is the constitutional provision that we have one president, and one foreign policy, at a time.

And to her credit, Sally Yates did not want to go down that road. General Flynn was interviewed on January the 24th by the FBI without her permission, against her counsel. She recommended that the Department of Justice notify the current administration about the concerns they had with General Flynn, that the right thing to do would be to call McGahn and the Trump administration and tell them about the concerns they had about General Flynn.

The interview on 24 January had no conceivable connection to the Logan Act, but was concerned with Flynn's lying about his phone calls with Kislyak, which might make him subject to blackmail or extortion by the Russians. Yates was not against the interview per se, but felt she should have been part of the decision process.

The FBI went down a different path. The FBI calls Flynn and suggests to him that you don’t need a lawyer; that we just want to talk to. We want to get it over quickly. Do you mind meeting with us? And when Flynn said, “I’d like my lawyer,” says, “No. If you do that, we have to go way up to the chain. That will slow things down.”

I don't know where this is coming from. McCabe writes,

I said, Okay, let me know if you feel compelled to have attorneys there, whether White House counsel or your own attorney, that's perfectly fine with us, but if you do, then I will have to ask someone from Justice to come down with the agents. He said. No, no, no, I don't need to do that, it's fine, just send your guys down here. I'm happy to talk to your guys.

And finally, in the peroration,

And what did Flynn tell McCabe? "Well, you’ve got the transcript. You know what I said." There was a violation of the Logan Act. You had the transcript. Why did you need to talk to him? They were going to manufacture a crime, not try to figure out what he did. That’s my view. We’ll see if over time, that matters. I’ll end on this. [inaudible 00:15:34] followed Ms. Yates’ advice and gone to the White House to tell them about their concerns, the way you should have done it, because she said what happened with the FBI was problematic and inconsistent with what should have happened, been a lot of heartache saved in this country.

McCabe says,

When I told him that people were curious about his conversations with Kislyak, Flynn replied, You know what I said, because you guys were probably listening. 

Which is indeed kind of mysterious. Everybody has to have wondered, me too, why Flynn didn't worry about lying to the FBI, didn't care whether he had a lawyer at the interview, why he told them his lies in such a relaxed and cheerful fashion. It's really as if (and this is a new idea as far as I know) he thought the whole procedure was a bureaucratic pantomime, an effort to get his denial on the record so the whole issue could be permanently put to rest, a mock interrogation. Maybe somebody in the White House had already told him not to worry, because they'd have his back; maybe the same as the one who had advised him to "kill the story" of the Ignatius piece.

And once again, it's NOT ABOUT THE LOGAN ACT, after the Ignatius piece and particularly after the inauguration. It's about counter-intelligence, in the strictest sense, the countering of the adversary's intelligence services and their attempts to use the Republicans, whether as agents or useful idiots, and the danger Flynn had put himself in by lying to everybody he lied to (eventually the FBI as well).

The Logan Act is also the most intense object of his questioning:

Mr. Graham: (35:54)
That’s all I’m trying to say. I’m not saying that you lied to the court. I’m saying you signed something that was a lie and you didn’t know it. Now, lets’s talk about January 5th meeting. Was the Vice President there?

Sally Yates: (36:10)
Yes, he was.

Mr. Graham: (36:11)
Okay. Did he mention the Logan Act?

Sally Yates: (36:16)
I don’t remember the Vice President saying much of anything in this meeting.

Mr. Graham: (36:20)
So you don’t remember him mentioning the Logan Act?

Sally Yates: (36:23)
No. I don’t.

Mr. Graham: (36:24)
Did anybody mention the Logan Act?

Sally Yates: (36:27)
I have a vague memory of Director Comey mentioning the Logan Act. But I’m not sure [crosstalk 00:04:33]-

And then the short-lived idea of dropping the Flynn investigation

Mr. Graham: (37:53)
But here’s my point Ms. Yates, on January the fourth, the FBI said, “There’s no reason to keep looking at General Flynn.” On January the fifth, you have a meeting with the FBI director where you believe he mentions the Logan Act in regard to General Flynn. Is that correct?

Sally Yates: (38:12)
What I understand, Senator Graham, is that… And I didn’t know at the time, because I wasn’t privy to the FBI’s internal documentation of the counter-intelligence investigation.

Mr. Graham: (38:25)
Did you even know what was going on?

And then jumping three weeks ahead to the FBI interview, skipping past Flynn's lies and preventing Yates, with remarkable rudeness even for a senator, from mentioning them herself

Mr. Graham: (39:07)
So you believe there was a legitimate basis for the interview?

Sally Yates: (39:09)
Yes, I do.

Mr. Graham: (39:10)
What was that basis?

Sally Yates: (39:12)
Well, at the time, Senator Graham, we were in a situation where we had evidence that the Russians were attempting to influence the election to benefit-

Mr. Graham: (39:22)
The election was over.

Sally Yates: (39:26)
Right. If you give me just a second here, I think I can lay it out for you.

Mr. Graham: (39:31)
No, no, here’s what we’re going to do. I’m going to ask questions, and you’re going to give me answers. What was the basis of the General Flynn interview? Was it part of Crossfire Hurricane?

He won't allow her to mention the lying of 13 January onwards, and he won't allow her to address the counter-intelligence concerns (non-criminal aspects of what Flynn was doing privately negotiating over sanctions with Kislyak)

Mr. Graham: (40:32)
Was this a counter-intelligence investigation of the phone call?

Sally Yates: (40:37)
This was a counter-intelligence investigation of the Trump campaign’s potential relationship with the Russians.

Mr. Graham: (40:45)
That makes no sense. So on January the fourth, they recommend to drop Flynn. They mentioned the Logan Act and you advised against prosecuting the Logan Act. Is that true?

Sally Yates: (40:56)
We never made an official decision about whether we were going to do it, but I think it was unlikely, certainly unlikely that we would pursue a prosecution. And that was not her primary concern, it was not a Logan Act violation, it was a counter-intelligence concern.

"That makes no sense." Or, as Yates put it in her opening statement, "As expected, the Russians immediately announced that they would retaliate, but then the next day, they inexplicably reversed course and announced that they didn’t intend to take any responsive action. The administration was understandably perplexed by this abrupt change, and President Obama asked the intel community to try to figure out what had happened. And the FBI discovered the answer. General Michael Flynn, the incoming national security advisor, was having back channel discussions with Russian Ambassador Sergey Kislyak. Recorded conversations between General Flynn and the ambassador revealed that General Flynn had essentially neutered the U.S. government’s message of deterrence. Far from rebuking the Russians for their attack on our country, General Flynn was conciliatory. He tried to persuade the Russians not to escalate the situation so they could reset the relationship."

And then back to the interview, in which he works to turn a minor turf battle between DOJ and FBI into a kind of Oliver North extralegal rampage

Mr. Graham: (41:10)
Okay. Here’s what I want to understand, is the counter-intelligence investigation that led to the interview. You didn’t authorize the interview. As a matter of fact, you wanted to go to the White House and tell them about the problem, didn’t you?

Sally Yates: (41:24)
That’s right. I thought that that was the more immediate issue that needed to be addressed.

Mr. Graham: (41:30)
And when you heard about the interview, you got upset, didn’t you?

Sally Yates: (41:33)
I was upset that Director Comey didn’t coordinate that with us and acted unilaterally. Yes, I was.

Mr. Graham: (41:38)
Okay. Did Comey go rogue?

Sally Yates: (41:42)
You could use that term. Yes.

Note that he doesn't at all want to understand the counterintelligence investigation. He wants to make her say interviewing Flynn (for mysterious reasons, since he won't allow her to explain that it was prompted by Flynn's public lies about the Kislyak calls) was "rogue", and he succeeds, until she finally begins to catch on, and then his time's up.

Mr. Graham: (46:01)
Would the Director of National Intelligence be investigating a violation of the Logan Act?

Sally Yates: (46:08)
Because the President, when the Russian so inexplicably reversed course [crosstalk 00:00:46:15]-

Mr. Graham: (46:13)
Here’s my question, would the intelligence community be investigating a violation of the Logan Act?

Sally Yates: (46:20)
Senator, [crosstalk 00:00:46:19]-

Mr. Graham: (46:21)
Is that appropriate? Is that appropriate?

Sally Yates: (46:22)
[crosstalk 00:46:22] investigating a violation of the Logan Act, I don’t know how many times I can say that that wasn’t the prism. It was a counterintelligence threat.

Mr. Graham: (46:31)
Now, you keep saying there was no… Well, he was dropped from the investigation on January the fourth. They talk about the Logan Act. This makes no sense that you didn’t know, and the President did. And I’m trying to find out how the President knew and you didn’t and you still can’t tell me that. Is that fair to say?

But not before introducing the idea that intrigues were being hidden from her ("the President knew and you didn't" as opposed to "you weren't informed for 12 hours because Comey thought someone else was supposed to tell you the information he had just learned" or, as Yates said in her statement, "And I asked him why this was the first that I was hearing of this. And he told me that his team had briefed the lawyers in the National Security Division about the calls the previous day. And he expected that the NSD lawyers would brief me. As it turned out, the National Security Division lawyers had in fact made an appointment already that was scheduled with me for that afternoon.").

I can't do the whole thing—the 16 minutes of Graham's initial statement, the 20 minutes of his initial questioning, and the questions he intersperses in between other senators throughout the whole three hours—but I hope this is enough to show the general tendency, as an attempt to hint at, without actually telling, a set of alternative facts: that the rogue FBI with the prodding of Obama and Biden was persecuting people attached to Trump, Carter Page with a "garbage" surveillance order and Flynn with the threat of prosecution under the Logan Act, for sinister but inarticulable reasons. There's never an attempt to explain how the rogues hoped to benefit from intercepting Page's phone calls or jailing Flynn for his antiquated offense. There's no mention of the other targets of the Russia investigation—Papadopoulos, Manafort, Gates, or Stone—at all, The actual crimes of Russian intelligence, trying to bend the US election system to its own interests, remain unmentioned, as do the actual crimes of the targets, nearly all of whom do seem to have lied to the US government, mostly in the hope of protecting Trump or under his instructions (Papadopoulos is the exception to that, lying apparently purely on his own account). 

Graham is engaged not in a defense of the Trump administration but a cover-up, artfully arranged to stop you from noticing that it leaves a lot of visible nakedness.