Out Like Flynn Revisited

OK now it's really getting crazy, as the Justice Department seems to think it's found a way to pardon Mike Flynn without giving Trump the trouble of doing it himself. I'm recapitulating some of the things I was thinking about at the time of Flynn's second guilty plea, in December 2018, in the light of what we've learned since then from the Mueller investigation, as a response to the Flynn news.

New York Post editorial page:

Flynn’s supposed crime was lying to FBI agents in a January 2017 interview at the White House. Yet the concealed evidence included 1) a top FBI official’s notes suggesting the entire purpose of the interview was to catch Flynn in a lie, or get him to admit to a technical violation of the Logan Act — all in order to force him from office. And 2) an internal Justice Department memo, from the day before that interview, calling on the FBI to close the Flynn investigation because agents had dug up absolutely no wrongdoing.

In fact, they already had the transcript of Flynn’s call with the Russian ambassador that was the supposed reason for the interview — and knew he’d said nothing improper, just things an incoming national-security adviser should discuss.

Actually no. The calls Flynn exchanged with Ambassador Kislyak from where he was supposed to be on vacation in the Dominican Republic between 29 and 31 December 2016 were a response to what the Presidential Transition Team regarded as an emergency, after President Obama imposed new sanctions on the Russian state in return for Russia's well-established interference in the 2016 presidential election and Foreign Minister Lavrov announced that Russia would be retaliating with measures of its own. After getting briefed by the PTT, Flynn called Kislyak (whom he'd met for the first time with Jared Kushner on 30 November, at Trump Tower, for a conversation in which Kushner had talked about Trump's desire to "start afresh" with Russia and Flynn lamented the lack of a secure line for them to communicate—secure, that is, from observation by the US government) and urged him to stop President Putin from said retaliation because if he showed some restraint that would make it easier for the incoming Trump administration to end all the sanctions, including those related to Russia's invasion of Ukraine and seizure of Ukrainian territory, and its murder of the whistleblowing attorney Sergey Magnitsky; two days later Putin agreed.

The PTT was, as we now know, intensely involved with these calls, consulting with Flynn by email and phone before and after each one, through his deputy K.T. McFarland, who was at the Mar-a-Lago club with the president-elect's party:

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.89 Priebus recalled that the President-Elect viewed the sanctions as an attempt by the Obama Administration to embarrass him by delegitimizing his election. (Mueller Report II:25)

Oddly enough, however, when the Washington Post's David Ignatius published a paragraph on the Flynn-Kislyak conversations in a column on the growing evidence of Russian interference in the presidential election—

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated?

—Flynn himself, vice president–elect Pence, who was the head of the PTT, and incoming press secretary Sean Spicer all denied that the phone calls had taken place.

These denials "freaked out" acting attorney general Sally Yates and some others in the upper echelons of the Justice Department and FBI, because they knew that Flynn was lying: they had transcripts of the conversations, recorded by NSA, which has a tap on the Russian ambassador's official phone (proper journalists usually gloss over this because it's classified, but it's obviously true, and as you see above the New York Post is mentioning it now). They did not, however, have evidence of the involvement of the transition team in guiding the calls, as we do now, and they did not seem to suspect that Pence was lying as well, as I certainly do. Instead they concluded that Flynn had not only probably violated the Logan Act, but also lied to Pence and other officials, which would make him vulnerable to blackmail from Russia, which (obviously) knew the truth.

And he'd already been a subject in the Crossfire Hurricane investigation, under the codename Crossfire Razor, because of his own peculiar relationship with Russia, according to a document dated 4 January 2016 (not "the day before the interview" but three weeks before it, and a week before the existence of the calls was revealed):

From courtlistener.com via Lawfare.

Indeed, the document goes on to say, they were considering closing Flynn's file in that investigation. Then they discovered Flynn's voice in the Kislyak calls and that became out of the question (three days before the interview is when Strzok hastily wrote Page not to close the file).

This is why they decided to interview Flynn, which they did on 24 January, and the strategy is pretty clear: either Flynn would tell the truth and they would learn what he'd been up to, or he'd lie and they'd have a way of forcing him to cooperate. Counterintelligence chief Bill Priestap seems to have been confused on that score, reportedly asking, "What’s urgent? Truth/Admission or to get him to lie, so we can prosecute him or get him fired?" and rightwing commentators are taking that as evidence that the whole investigation was some random malevolent scheme to throw Flynn out of his job, for reasons they don't even try to express.

But Priestap's notes go on to lay out the alternatives more clearly:

• We regularly show subjects evidence with the goal of getting them to admit their wrongdoing
• I don’t see how getting someone to admit their wrongdoing is going easy on him
• If we get him to admit to breaking the Logan Act, give this to DOJ and have them decide
• Or, if he initially lies, then we present him [redacted] and he admits it, document for DOJ, and let them decide how to address it
• If we’re seen as playing games, WH [White House] will be furious
• Protect our institution by not playing games

I'm assuming that the fourth bullet (the redacted matter is clearly a reference to the NSA transcripts of the calls) represents what the Bureau ultimately did.

But Thursday’s filing, signed by U.S. Attorney Tim Shea, says the FBI had no basis to continue investigating Flynn after failing to find illegality. It says there was nothing on his Russia calls “to indicate an inappropriate relationship between Mr. Flynn and a foreign power.”

The department also contends Flynn’s answers during the interview were equivocal and indirect, rather than false, and weren’t relevant to the underlying investigation into whether the Trump campaign and Russia were illegally coordinating. (AP)

No. Failure to find illegality is wholly irrelevant, since it's a counterintelligence investigation. The answers were certainly false, as Flynn agreed in his two guilty pleas. And it's only irrelevant to Crossfire Hurricane if you assume that Flynn was somehow doing this stuff on his own, on some kind of rogue basis, without coordination with the Trump team, which is absurd. It's far easier to believe that McFarland is equivocating, and Pence and Priebus and Kushner and Trump all outright lying (I think Kushner has acknowledged coordinating an earlier Flynn-Kislyak call relating to a UN resolution on Israel-Palestine).

Not that they were discussing Russia's efforts to get Trump elected, of course. They were discussing the payback to Putin—the reward for his assistance, the quid pro quo. It's incomprehensible to me that so many people are still refusing to recognize this (though it's partly, as I've been complaining all along, the fault of Mueller's team for refusing to examine it). And it was unquestionably a team job, though the FBI had no solid indication of that in January 2017; it wasn't until Trump fired Comey on 9 May that they began to understand.

Far from being a "technical violation of the Logan Act", in any case, it was the first time in American history that somebody had been caught blatantly engaging in the conduct the Logan Act was meant to prevent, private citizens negotiating secret agreements with a foreign power (some of us think the Nixon campaign in 1968 negotiating with South Vietnam and the Reagan campaign with Iran in 1980 should have been busted too, but the evidence wasn't there the way Flynn's calls were, recorded and transcribed by NSA). And the FBI knew he had done it, indeed, since the calls had been monitored, as Flynn should have known.

Maybe he should have told his interrogators why he was doing that. Maybe there's some terrific explanation as to what he was up to. I can't think of one. I think he lied to the FBI about his conversations with Kislyak because he was pretty sure they broke the law, and more specifically because they showed what Flynn was most anxious to conceal, the agreement Trump made with Putin that, should he attain the presidency, he would get rid of these sanctions.

Instead, Flynn chose to lie to the FBI. A crime to which he pleaded guilty, in December 2017, and again in December 2018, together with admitting to crimes he was not charged with, involving other calls and serving as an unregistered foreign agent for pay, while he was Trump's incoming national security adviser:

On Dec. 22, “a very senior member of the of the Presidential Transition Team directed [Flynn] to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.” (Note the word “very” before “senior” in that sentence.) That day, Flynn contacted Kislyak about the vote. He “informed the Russian Ambassador about the incoming administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution.” The following day—Dec. 23—Flynn spoke to Kislyak, who told Flynn that “if it came to a vote Russia would not vote against the resolution.”

Finally, Flynn made false statements in FARA filings pertaining to a project that his company, the Flynn Intel Group, performed “for the principal benefit of the Republic of Turkey.” Flynn made “materially false statements and omissions,” including that (1) the Flynn Intel Group “did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project”; (2) “the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey”; and (3) an op-ed that Flynn wrote and “published in The Hill on November 8, 2016 was written at his own initiative.” He also omitted “that officials from the Republic of Turkey provided supervision and direction over the Turkey project.”

(Republicans frequently protest that nobody ever gets charged with violating FARA, but they omit to mention that no senior cabinet member of an incoming administration has ever been caught doing it.) Which leaves out the crazier aspects of the Turkish affair, like his agreement to help spirit Erdoğan opponent Feithullah Abdullah Gulén out of the US.

I don't really care, personally, whether Flynn goes to jail or not, but I'm enraged at the way Barr's DOJ is using the case as a way of continuing the project he began when the Mueller Report was completed, of hiding Trump's own involvement in the Russian conspiracy to get him elected. Trump was in this, one way or another, from the start, and the evidence gathered here shows that Trump directly or indirectly dictated the Flynn-Kislyak calls (and Flynn wasn't the only one who lied about them).

See (can't believe I'm saying this, but it's only because he agrees with me) David Frum. The truth is starting to get normal.