Taking stock: Never a case against Flynn, and DOJ/FBI knew basis of FISA application was faulty

Taking stock: Never a case against Flynn, and DOJ/FBI knew basis of FISA application was faulty
The brain trust, briefing Congress in 2014. (Image: Defense Intelligence Agency)

This week’s revelations about Russiagate have solidified two crucial points.  The points have been shown over the last year to be increasingly likely, but disclosures since 3 December indicate now that they are virtually certain.

One is that there was never a case for “investigating” Michael Flynn in connection with Russiagate.  The sentencing memo from Robert Mueller this week makes that evident, by clarifying that the basis for the probe was Flynn’s phone conversations with (then) Russian Ambassador Sergey Kislyak in December 2016.

Byron York points out that there was nothing wrong with Flynn having these conversations during the transition period to the new Trump administration.  The Obama administration substantially overreached with its theme of invoking the 200-plus-year-old Logan Act – a theme that emerged within the administration only after someone on the Obama team committed the felony of leaking Flynn’s participation in calls with Kislyak to the media.

The Logan Act was the flimsiest of pretexts, but that’s not the only thing that demonstrates just how unnecessary the investigation was.  Another point is that the phone conversations took place after the election.  They couldn’t have been instances of collusion to affect the election, because the election had already happened.

The third point is that the FBI knew that with absolute certainty, because the FBI had the content of the phone calls.  The FBI wasn’t guessing.  We’ve known that from the very beginning, in fact, because we too – the news-consuming public – have known the content of the phone calls, from the media leak.

Mueller has gone all the way to sentencing on Flynn’s case without there ever being a hint that he had something from those phone calls – or from any other source – that was about “collusion” with Russia over the 2016 election.

The FBI apparently knew its pretext for interviewing Flynn in January 2017 required some kind of bolstering, because he hadn’t done anything wrong, and the FBI knew it.  So the Obama administration, speaking from the Justice Department, concocted a flimsy justification (summarized by York):

The Obama officials also said they were concerned by reports that Flynn, in a conversation with Vice President Mike Pence, had denied discussing sanctions [with Kislyak]. This, the officials felt, might somehow expose Flynn to Russian blackmail.

Even setting aside the inanity of this, the salient point is that opening a wide-ranging investigation of Flynn, when you already know exactly what he did, is not the responsible, rule-of-law way to handle something of this nature.  If the FBI truly thought it might be a blackmail issue, the obvious move was to inform the Trump team, as delicately as necessary, of the perceived discrepancy.

Even that was basically moot after the leak to the Washington Post and the Sunday talk-show appearance by Mike Pence (on 15 January 2017), in which the vice president affirmed what he understood he had been assured of: that Flynn didn’t make promises to Kislyak that affected the Russian reaction to sanctions imposed by the Obama administration.*  Once those two events occurred, the Trump team was well aware of the issue anyway.

So instead, the FBI, which said on 23 January that Flynn had done nothing wrong (link above), conducted an ambush interview of him on 24 January; i.e., showing up on his White House schedule on a separate pretext, and then subjecting him to an interview as if he were a criminal witness.

After the FBI logged that its interviewers thought Flynn was being truthful in his responses, Mueller then spent six months in 2017 treating him as if he hadn’t been.

But again, Mueller, the Justice Department, and the FBI knew the entire time that Flynn had done nothing wrong to begin with, and what he did discuss with Kislyak had nothing to do with “collusion” over the election.

It’s hard to think of a case of such blatant bootstrapping: trying to find any pretext, no matter how weak, to pull Flynn into a dragnet, manufacture a perjury trap crime, and then sweat him for information about – apparently – other things (e.g., Turkish lobbying) that have nothing to do with Russian collusion.

The FISA application

The other revelation is from Republicans in the House of Representatives, who a couple of weeks ago asked Trump to declassify a series of emails among officials in the DOJ and FBI.  The emails were from October 2016, and reportedly, they establish that the responsible officials who signed off that month on the FISA application for surveillance of Carter Page knew not only that the Steele dossier was unverified and shaky, but that Christopher Steele was already talking to the media about its contents, weeks before the application was presented to the court.

It has long been clear that the basis for the FISA application was the dossier.  That’s not the same thing as saying that the basis for the entire FBI Russia probe – the exercise called “Crossfire Hurricane” – was the dossier (although the dossier seems to have been crucial to it).  The application for FISA surveillance of a U.S. person with Fourth Amendment rights – Carter Page – was based on the dossier.

And yet there’s an email chain that indicates the FBI and officials in the DOJ knew the dossier didn’t meet the standard of evidence for FISA applications required by the court and the Bureau’s operating procedures.  Moreover, the dossier’s author had violated the terms of his role as a confidential human source.

Not only that: Steele’s violation of those terms apparently set up a case of circular intelligence confirmation that was used in the FISA application.  Steele discussed the dossier with Yahoo’s Michael Isikoff, and the FBI used an Isikoff article on the contents of the dossier as if it represented independent confirmation of those contents.

The catalogue of shabby, unprofessional practices here is mind-boggling.  And that’s even if we just assume this is an inexplicable case of utter professional failure, running through at least four layers of FBI and DOJ supervision.

The likelihood that it was something else keeps growing, however.  Nobody does these things through haplessness.  Michael Flynn and Carter Page are owed answers, as are all the other people whose communications came under surveillance with the Carter Page warrant.  The American people are owed answers too, for the waste of our money and the abuse of our laws.  We’re certainly owed an answer on why no one has been identified and prosecuted for the felonious leak of intelligence on Flynn’s phone calls with Kislyak.

The silver lining in this cloud may still be, however, that we do find out what all this has really been about.  That won’t redound to the previous administration’s credit.  But the exposure of abuses in the intelligence and law enforcement apparatus is badly needed, and even more important to our nation’s future than the revelations of the 1970s that led to the Church Commission.


* The actual content of Pence’s discussion with John Dickerson on Face the Nation is worth revisiting at the link in the text.  I reviewed some of it here.   I’ve been told by a third party that some of the miscue between Flynn and Pence was due to literal communication problems; i.e., a bad phone connection.  What the vice president-elect assured Dickerson of has often been misrepresented in subsequent media reporting, however, and it doesn’t hurt to get rectified on that.

I’m not excusing Flynn here, incidentally.  Even if there was a communications mix-up between him and Pence, it was Flynn’s job to make 100% clear what assurances he was giving the vice president.  When you’re the subordinate in the national security chain of command, it’s never the right answer to plead, “But that’s not what he asked me.”  It’s your job to make sure the senior knows what you mean.  Flynn would say the same thing.

Note, in any case, that It wouldn’t have been criminal for the incoming national security adviser to make promises to Kislyak, if he’d been authorized or ordered to by President-Elect Trump.  But the Obama administration – if it had some reason for hoping the Russians would overreact to the sanctions – would have had a justifiable beef with Trump as a matter of political conventions, if that had been the case.

We know, however, that it wasn’t.  More importantly, so did everyone who mattered in the Obama administration.  Unlike Pence, they knew exactly what Flynn had said.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


For your convenience, you may leave commments below using Disqus. If Disqus is not appearing for you, please disable AdBlock to leave a comment.