Some lessons get learned the hard way. It’s not necessarily anyone’s fault. But it is important to recognize them as lessons learned in the clear framing of hindsight. The Michael Flynn case, including its reverberations as a component of the “Russiagate” drama, is one of those lessons.
The following struck me forcibly during the hunt for a “Flynn 302” in the Mueller report with the date of 19 January 2017, which Michael Flynn’s just-unsealed Brady motion names in its extensive list of materials. Sara Carter has a good read on the motion, as does this thread from Twitter sleuth Techno_Fog. (The 302 in question is mentioned in footnotes in Vol. I of the Mueller report on p. 172, by the way.)
Flynn's Motion to Compel/Show Cause is unsealed.
What exactly has the DOJ refused to produced?
And who else might have been involved?
— Techno Fog (@Techno_Fog) September 11, 2019
The case to be argued here is a very simple one. Nothing that has happened since 12 January 2017, when David Ignatius’s Washington Post article about the Flynn contacts with Russian Ambassador Sergey Kislyak burst forth upon us, had to happen. None of it had to happen at all.
The reason is equally simple. Michael Flynn didn’t do anything wrong in his December 2016 discussions with the Russian ambassador about the sanctions imposed on Russia.
That’s it. There’s nothing more to it than that.
This point is one I’ve made before, as have others. But I don’t recall seeing it made as forcefully as it merits making. It’s not a mere matter for melancholy reflection. It’s an actionable point for everything we do going forward.
The Obama Department of Justice, the FBI, and the media tried to create the impression that Flynn had done something wrong. This was a move in bad faith, and frankly should have been recognized as such, for starters because it obviously involved a criminal leak from inside the Obama administration to the media – yet even with that leak, it carried no substance that indicated wrongdoing.
For whatever reason, the incoming Trump administration began to scramble to disavow the claims made in Ignatius’s article. I suspect this was because the career politicos on the team weren’t in a mindset of expecting to be broadsided with bad-faith moves.
What the Trump team might better have done, in hindsight, was say that it had every right to hold discussions with the Russian ambassador – which it did; and that nothing the Trump team said to anyone had undermined the sanctions policy being pursued by the Obama administration – which was true.
Here is the single substantive outcome of the Flynn-Kislyak phone discussions about sanctions at the end of December 2016, as recorded in the Mueller report (emphasis added):
After [a briefing with Trump on 29 December 2016], Flynn and [K.T.] McFarland spoke over the phone. Flynn reported on the substance of his call with Kislyak, including their discussion of the sanctions. According to McFarland, Flynn mentioned that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration. (Vol. I p. 171) …
The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. Hours later President-Elect Trump tweeted, “Great move on delay (by V. Putin).” (Vol I p. 172) …
On December 31, 2016, Kislyak called Flynn and told him the request had been received at the highest levels and that Russia had chosen not to retaliate to the sanctions in response to the request. (Vol. I p. 172)
These summaries of results occurred after the following action by Flynn on 29 December, which reflected a consensus position in the Trump team (for the full outline of that, see p. 171):
With respect to the sanctions, Flynn requested [of Ambassador Kislyak] that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.
The Russians then decided not to retaliate against the sanctions imposed by the Obama administration.
Let that sink in, if you need time to.
Notice that Trump didn’t indicate any intention to soften the sanctions in his tweet at the time (again, see p. 172 per citation above). The FBI (which had the contents of the phone calls at its fingertips) has never alleged that Flynn conveyed such an offer to Kislyak. Nor did Ignatius, recipient of a criminal leak on the phone calls, make any specific suggestion in that regard.
The only things alleged are that Flynn spoke to Kislyak about the sanctions (the initial Ignatius nugget), and the Russians – first Putin, then Kislyak – stated that Putin would not escalate with a retaliation against the sanctions imposed by Obama (FBI records, the Mueller report).
There is no universe in which that outcome equates to undercutting either the Obama policy or the interests of the United States. It would be foolish to want Russia to retaliate, or to suggest that Obama’s policy was being undercut if Russia didn’t retaliate. Retaliation by Russia was of course not the object of the policy.
The incoming Trump administration, to the extent that its communications with a Russian contact made the difference, secured a positive outcome.
Trump, meanwhile, according to the Mueller report, said he thought the sanctions would be good leverage with Putin (Vol I, p. 171). Nothing indicates he wanted to oppose what Obama was doing, or tell the Russians he opposed it.
The best outcomes for America were obtained on all fronts: the sanctions gave the incoming president leverage (Obama, the outgoing president, had no time left to use such leverage), and the Russians decided not to retaliate for the time being, because a new administration was coming in.
The concocted narrative about the Logan Act and inappropriate phone calls was just that: a concocted narrative, pumped up by the media into a scandal that it objectively never was. There was no actual need for anyone to try to explain away the story retailed by Ignatius, or to disavow it. (See Vol II, p. 29, on the Trump team’s reaction.)
The DOJ approach after the first broadside was to turn the discussion away from the Flynn phone calls themselves – because they were a dead end, since he did nothing wrong – to a set of elliptical insinuations that he lied about them to other members of the administration, and then eventually to the FBI. This wasn’t about national security or diplomatic protocol at all. It was about sowing seeds of confusion and discord in the Trump team.
An appropriate answer for Team Trump was to say to all comers: “Of course we’ve talked to the Russian ambassador. That’s what incoming transition teams do. Obama is still the president, and the Russians know current policy is not our call. We have no intention of undermining Obama. We’ll let you know after 20 January if there will be any change in U.S. policy.”
Lesson: don’t let the media or your political opponents put you on the spot through convoluted narratives and bad logic. Easy to say; harder, of course, to execute under pressure. Monday morning quarterbacking is tiresome. But you do have to watch game video and figure out what you did wrong.
I’ll put it this way: it’s certainly a lesson learned for me. Bad-faith attacks don’t merit responses on their terms. They should be met with the relentless application of one’s own affirmative message – and a scalpel, or a jackhammer and blowtorch, as necessary. Nothing is owed to traffickers in guilt-tripping and innuendo; don’t make payments on false debts.
The Trump administration and the nation have paid dearly for being caught in that false-debt trap for the last two-and-a-half years. Trump’s evident recognition that his attackers don’t deal in good faith is to his credit. Facing hard truths is something too few political leaders do. It’s past time to get over his tweeting habits; Trump’s ability to face down relentless bad-faith press has been a shield for many who don’t have that gift. It’s the only corrective in sight — his detractors on the Right don’t offer any — for an incorrigibly predatory and conscienceless political-media class.