Clarice Feldman at American Thinker and Byron York at Washington Examiner have important articles on the Michael Flynn case this week. They both make a series of excellent points, which I will summarize only briefly here, because I want to focus on the substance of what Flynn is alleged to have done, and pleaded to in December 2017.
Feldman’s and York’s discussions are vital to the overall picture. Although the York piece was posted first, I’ll start with Feldman’s, because it covers a less widely mentioned aspect of the case.
Feldman wonders – as many of us have – why U.S. district court judge Rudolph Contreras was recused from the Flynn case when it came before the bench last year. Contreras didn’t self-recuse. He “was recused.” Feldman comes to the same conclusion I do: that this happened because Contreras is also appointed to the FISA court.
Structural oddities in the Flynn case
I stress that this does not mean Contreras approved any FISA surveillance application that named Michael Flynn. It doesn’t mean any FISA application naming Flynn was brought before the court either. We have no reason, based on this recusal, to assume any of the following: that Contreras approved the Carter Page application; that the Carter Page or any other application named Michael Flynn; or that Flynn was named in any FISA application that was disapproved in 2016.
Contreras just sits on the court. The following is what I understand from the recusal of him in the Flynn case.
Beyond hearing FISA applications from the FBI, the court has a separate (but related) duty to supervise routine counterintelligence surveillance done by U.S. agencies, which involves the incidental collection of communications by U.S. persons. That supervision is executed in a different way from the management of an FBI-submitted FISA application.
The latter – an FBI FISA application – is about surveillance of particular individuals for a law enforcement purpose, as it relates to national security. Authority for it has to be obtained specifically by applying to a judge, with probable-cause justification, and is limited in scope and duration.
The routine counterintelligence surveillance is generic, and ongoing all the time. The agencies involved (almost exclusively NSA, on the collection side) must periodically certify to the court that their tasking and control mechanisms conform to the parameters set by Congress in the FISA law of 1978 and subsequent amendments.
But this involves the FISA court because of the 1978 law’s purpose of protecting American citizens’ rights, given that the surveillance is ongoing. It’s national security that causes the routine surveillance; the court’s role is to protect the rights of Americans, not to certify the need for the surveillance. That’s a key difference from the FISA “warrant” procedure used to enable the FBI to pursue specific subjects.
For our purposes here, the most significant distinguishing characteristic of this routine surveillance is that its targets are foreign, and don’t have an expectation of Fourth Amendment protections.
The national security issues that drive this tasking are prioritized by the sitting presidential administration, and include terrorism, the narcotics trade, and foreign intelligence operations against the United States – like those conducted by Russia and China.
It was via this routine counterintelligence surveillance that the FBI gained specific knowledge of the fact that Michael Flynn spoke to Russian Ambassador Sergei Kislyak by phone in December 2016.
Now, a FISA court judge might encounter, in his criminal courtroom, a defendant who at some point had been “unmasked” from comms collected under the routine counterintelligence tasking, without the judge ever knowing it. The two things don’t necessarily go hand in hand.
But they almost certainly do in Michael Flynn’s case.
The permutations of what this could mean are several, and get pretty convoluted. I won’t go into them here, except to say that at least one of the permutations would bear on Clarice Feldman’s second major point: that the judge who was assigned the Flynn case, Emmet G. Sullivan, issued a pointed order to the prosecution in December to turn over all potentially exculpatory material to Flynn’s legal team.
The history of Judge Sullivan’s zeal for exculpatory material is important, so be sure to read it.
What I want to recognize is the possibility that the routine surveillance supervised by the FISA court may be the source of some of it.
My initial suspicion is that Contreras was recused because he sits on the FISA court, period. Sullivan doesn’t, and I imagine that Flynn’s case would not have been assigned to any D.C. district judge who does. (There are currently three; besides Judge Contreras, they are Rosemary M. Collyer, the presiding judge of the FISA court, and James E. Boasberg.)
Again, the permutations of what the FISA connection may mean are too convoluted to spend further time on here.
A big flip-flop from the justice system
But they may ultimately be linked to Byron York’s key point, which is that James Comey briefed Congress in March 2017 that the FBI did not think Flynn had lied to them – and yet Flynn ended up being charged in the Mueller investigation with lying, in exactly the same instances Comey had said he didn’t.
York basically wants to know what happened here. How did “Flynn didn’t lie” become “Flynn lied and obstructed justice”?
That’s a question we’re not in a position to answer definitively from where we sit. (Another important question is why Flynn entered a plea. I have been told by people who know him well that that his decision was made both because he was simply running out of resources, and because he wanted to prevent Mueller from going after his son, who may be perfectly innocent of all wrongdoing, but who also lacks the resources to stand up to months or years of an excruciating legal probe.)
The point I want to focus on, however, is that the “false statements” listed in Flynn’s plea are, in fact, on exactly the topic on which Comey briefed Congress in March 2017. They are also what the FBI was talking about in January 2017, when “U.S. officials” reportedly told the Washington Post that the FBI had not “found any evidence of wrongdoing or illicit ties to the Russian government.”
That’s not the same thing as “Flynn didn’t lie to us.” James Comey told Congress that weeks later. But, as York outlines, it was the very day after the Post report – it was 24 January 2017 – when the FBI sent Peter Strzok to interview Flynn in the White House. Comey’s brief to members of Congress took place about 8 weeks later.
Prior to both events – the interview on 24 January and the Comey brief to Congress – the FBI already knew everything Flynn said in his December 2016 phone calls with Kislyak.
Those phone calls are exactly the ones about which he was later accused of lying to the FBI in the 24 January interview.
York emphasizes that members of Congress want to know how the story on this changed between the Comey brief and the Mueller charges.
The dastardly contacts Flynn had with Kislyak
But in the meantime, let’s take a moment to recap precisely what Flynn has been accused of. It may be an eye-opening reminder for some.
The following elements are included in the statement of the offense:
1. Obama expanded U.S. sanctions on Russia in December 2016 (as a reaction to allegations about meddling in the U.S. election). On 29 December 2016, under the instructions of Trump and his senior team, “Flynn called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.”
On 30 December, Vladimir Putin “released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.”
On 31 December, Kislyak “called Flynn and informed him that Russia had chosen not to retaliate in response to Flynn’s request.”
The charge brought by Mueller’s team is not that Flynn did this. Trump had every right to authorize him to do it. The charge is that Flynn later lied about it to the FBI and said he didn’t make the request, and didn’t remember Kislyak telling him that Putin agreed to honor it.
Remember, the FBI has known all along exactly what Flynn did. The FBI knew what Flynn did when it went to interview him on 24 January 2017. Flynn couldn’t actually obstruct justice by withholding information about those phone calls, because the FBI already knew everything material about them. That’s a minor point, but it goes to the thinness of the case and the absurdity of the whole thing.
If you’re thinking what I’m thinking, in the meantime, well, you’re pretty smart.
Flynn was interrogated for having this set of conversations with Kislyak? Isn’t it a good thing that Russia agreed not to escalate tensions with the response to the sanctions expansion? Wasn’t America well served by this development?
It clearly would not have been better for Russia to escalate tensions. That’s not a comment on the Obama policy or the Obama administration’s continuing authority at the time; it’s a common sense observation about outcomes. Trump had Flynn talk to Kislyak, and Putin decided not to escalate. Notably, the charging documents offer no evidence whatsoever that Flynn offered an improper consideration from Trump or the U.S. in exchange for that. Good work.
2. The UN was considering a resolution condemning Israeli settlements in December 2016, and the Obama administration was widely reported to plan to abstain from voting on it. A U.S. abstention would allow the resolution to be adopted by the UN Security Council – unlike previous similar resolutions that the U.S had blocked over the years with a veto. (This one became UNSCR 2334, when Obama indeed had our delegation abstain from the vote.)
On 22 December, under the instructions of the Trump transition team, “Flynn contacted the Russian Ambassador about the pending vote. Flynn informed the Russian Ambassador about the incoming administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution.”
Then, on 23 December, “Flynn again spoke with the Russian Ambassador, who informed Flynn that if it came to a vote Russia would not vote against the resolution.”
A Russian diplomat said afterward that Moscow had had reservations of its own about the resolution, and tried to delay the vote. Egypt indicated that the attempt to delay the vote was based on a phone call between Sisi and Trump.
Your call as to whether it would have been a terrible thing for the U.S. to not have the opportunity to abstain from the vote on UNSCR 2334. I can’t see it as a problem. Rather, if all we were going to do was abstain, it would have been better for the vote to not happen at all.
But at the very least, it’s clear that Flynn was certainly no dark actor here, running around back-dooring anything behind the scenes.
Nor did this event have anything even glancingly tangential to do with “Russian meddling in the U.S. election.” It was about a wholly unrelated topic, and one on which Trump had every right to weigh in with the Russians, as the incoming president.
The information visible to the public also makes it clear that nothing about these exchanges indicates any sort of improper connection between Flynn and “Russians.”
The bait-and-switch justification for the “muh Flynn” probe
These are the instances of “talking to Russians” about which Flynn was interviewed on 24 January 2017. They are the instances about which Comey told members of Congress in March 2017 that the FBI didn’t think Flynn had lied.
But now let’s get something important sorted out in our minds. I have stressed several times that Flynn wasn’t doing anything he shouldn’t have done, by talking to Kislyak.
That’s what the FBI affirmed in the disclosure to the Washington Post reported on 23 January. Flynn hadn’t done anything wrong.
In fact, sensible people would say Trump used Flynn’s services not just properly, but to accomplish a good outcome for America, in one case, and pursue what would have been a better outcome in the other.
But, as Byron York describes, it was immediately after that 23 January report from WaPo that the FBI went to interview Flynn about his December phone calls – an exercise in something other than investigation, since they already knew everything he said in them – and Sally Yates at DOJ began beating the drum about violations of the Logan Act.
The generation of the “Russiagate” narrative has benefited tremendously from a sloppy back and forth on this topic. January 2017 was a critical time for that, because the two themes of the “Logan Act” and “Russian election meddling” were deployed however necessary to create an impression of something being wrong – even though they are not the same thing, and for law enforcement purposes had nothing to do with each other.
Collaterally, York, and others, have tied together Sally Yates’ involvement, emerging publicly after 24 January, and the famous statement by Mike Pence on 15 January in a Sunday show interview that Flynn didn’t speak to Kislyak about the sanctions on Russia. It appears that Pence had been poorly briefed on that (reportedly by Flynn), because he stated categorically that Flynn hadn’t spoken to a Russian about that topic at all, at the time in December when Obama was taking action on it.
Note that in the Face the Nation interview, the initial framing of the topic by John Dickerson was about “Russian meddling in the election.” That’s what Pence was anxious to allay concerns about, in addressing the question about Flynn – even though talking to the Russian ambassador during the transition period would not have had anything to do with “talking to Russians who had meddled.” The theme was being built up that any contact with Russians had something to do with the “meddling.” Implicitly, Pence needed to beat that implication back.
Then Yates came along, after 23 January, and talked “Logan Act” to the media.
At the same time, however, she visited the White House on 26 January, not to talk “Logan Act,” but to talk “Flynn lying to Pence”; i.e., an inference drawn from Pence’s statement in the Face the Nation interview.
This makes January 2017 look like a timeframe in which a pile-on was mounted: an attempt to make something out of nothing, by bringing together innuendo threads about vague things that weren’t actually related in any actionable (or legal) sense.
There was nothing prosecutable related to “Russian meddling in the U.S. election” – nothing to tar members of the Trump administration with – but that thread was deployed, as innuendo.
There is nothing illegal or improper about an incoming presidential administration having contacts on policy issues with Russian officials – but that thread was deployed, in relation to Flynn alone, under the legally useless banner of the “Logan Act,” as innuendo.
There might have been an inference that Michael Flynn had lied to Vice President-elect Pence about his conversations with the Russian ambassador. But, as White House counsel Don McGahn pointed out (see York), that was no business of the DOJ’s or FBI’s.
(If all they had was Pence’s TV show interview conflicting with the record of the Kislyak-Flynn calls, there was nothing for either agency to sort out. That’s not their job. It would be a discretionary decision whether DOJ should mention the discrepancy to the White House as a potential concern. But it wouldn’t be a prima facie basis for the FBI interviewing Flynn, or for any DOJ official throwing around Logan Act allegations.)
Flynn had certainly not lied to the FBI at that point about anything related to conversations with Russians. Moreover, the FBI already knew everything he had said in the December 2016 phone calls they asked him about on 24 January. The calls were proper anyway. There was no reason to interview him merely because of those phone calls.
But innuendo – and the potential that Flynn had misstated facts to Vice President Pence – were apparently used as a thin pretext for the interview.
It was so thin that the agents dispatched for it didn’t tell Flynn in advance that that’s what they were coming for. If they had, Flynn would assuredly have had a lawyer there for it. He would probably have conferred with White House counsel, in fact, and the FBI would have been forced to disclose what the heck it was doing – given that there was no information at the time that anything was being investigated (and WaPo had quoted officials one day earlier saying the FBI had nothing to probe Flynn for).
Then, weeks later, James Comey told Congress that the FBI didn’t think Flynn had lied to them, on 24 January, about the things summarized above.
Somehow, that then changed to a set of charging documents from the Mueller team, for Flynn lying about conversations the FBI already knew every syllable of, weeks before it interviewed him.
The real question is why Flynn was asked about them. We know the FBI did that, but we don’t know, even now, if the Mueller investigation thinks it has found any useful counterintelligence evidence about “Russia” (whatever that even means) – which was its original stated purpose.
There is no coherent set of facts that appears to actually mean anything here. Not about Michael Flynn or any member of the Trump team, at any rate.
Byron York concludes that there is still a lot we need to learn about the Flynn case. Clarice Feldman suspects that Robert Mueller has gotten Flynn’s sentencing postponed (it won’t be until May) because the charges could well be dropped, once the inspector general report on the FBI’s conduct comes out.
York is assuredly right, and there’s a good chance Feldman is too. Meanwhile, no reasonable case has been made for the 24 January 2017 FBI interview — certainly not in the terms of there being an underlying crime to look into. On the contrary, what Flynn did in December 2016 made sense, was done on behalf of the incoming president, and in one case, achieved a beneficial outcome.
We must not forget that. The only thing that does make sense in all this is what Flynn did in his phone calls to the Russian ambassador in December 2016!
There is no evidence at all of an underlying crime here. As a case of cynically manufacturing a process crime by conducting a spurious interview, this one could not, from the public view, be more classic.