On 1 June, The Federalist’s Margot Cleveland published an important article about the longstanding claim of Robert Mueller’s special counsel team that retired LTG Michael Flynn had made false statements to the FBI about his discussion of sanctions with former Russian Ambassador Sergey Kislyak.
The article was based on the released transcripts of Flynn’s monitored phone calls with Kislyak in December 2016. (DNI John Ratcliffe had just released them, following up on a promise made by just-departed Acting DNI Ric Grenell.) What the calls showed, as Cleveland pointed out, was that Flynn did not, in fact, discuss the sanctions Barack Obama imposed on Russia on 29 December 2016.
The released transcripts of the phone calls indicate that the only relevant thing Flynn discussed with Kislyak was the expulsion from the United States of 35 Russians who were members of Moscow’s U.S. delegation, plus denial of the use of Russian “recreational” property in the U.S.
This action was part of the 29 December package, but it was not formally a “sanctions” move. The actual sanctions Obama imposed on the same date were imposed under different presidential authority: Executive Order 13757. They were in the typical form of financial prohibitions, administered by the U.S. Treasury, on Russian entities and persons the Obama administration had identified as linked to interference in the 2016 election.
Kislyak and Flynn didn’t talk about the sanctions. They talked briefly about the expulsions. As Cleveland reminds us, that’s what Flynn himself said, in basically so many words, in February 2017. Flynn was very clear on the distinction.
Cleveland highlighted that that matters, in part because the expulsions and sanctions have been conflated in all the media reporting ever since, apparently because conflating them is essential to the narrative about what Flynn is guilty of. The narrative, however, is just as dependent on what went into the charging document for Flynn when he took his plea (since reconsidered) on 1 December 2017.
The Special Counsel’s statement of offense against Flynn unvaryingly referred to his offense as being in relation to discussing “sanctions” with Kislyak. The term “expulsion” does not appear in the statement of offense.
Moreover – and this is key – the Mueller Report discussed Flynn’s guilt entirely in terms of his having discussed “sanctions” with Kislyak. Cleveland regarded that as suspect. So do I.
In fact, an examination of the Mueller Report shows that the word “expulsion” occurs in it exactly one time. It’s in footnote 1261 on page 172, and the reference relates to Ambassador Kislyak. It’s a Russian foreign ministry statement with an original title that contained the word “expulsion,” which therefore could not be omitted.
There is also a single reference on page 169 to the Obama administration expelling the Russian diplomats, but it is provided as context, and not linked by the Mueller Report to the Flynn-Kislyak phone calls.
All references in the Mueller Report to the significance of Flynn’s phone calls with Kislyak use the word “sanctions” to indicate what they spoke about, on 29 December (when the measures against Russia were imposed) and in a follow-up call on 31 December, with only a brief handful of words on that topic.
Yet what Kislyak and Flynn actually discussed was the set of expulsions.
A real distinction, made by Spygate/Obamagate actors
This may seem picayune. But it was not picayune to the Justice Department, as was confirmed this past week when the post-interview conference notes of DOJ official Tasha Gauhar were released.
Margot Cleveland had already made a strong case in her 1 June article that the DOJ and FBI both made the distinction between sanctions and expulsions.
The wording of Gauhar’s notes shows that it mattered. She referred in her notes from the meeting, which took place on 25 January 2017, right after Peter Strzok and Joe Pientka interviewed Flynn on 24 January, to Flynn and Kislyak having discussed “expulsions” – but explicitly not “sanctions.” (Gauhar’s are the first notes in the batch.)
This is from page 2 of Gauhar’s notes.
And this is page 3.
At that meeting, Gauhar was among a group of DOJ personnel who were being debriefed on the Flynn interview by the FBI. It is very unlikely that she would have written down “expulsions” if the FBI had spoken of the topic as being “sanctions.” It’s easy to conflate the two – something the special counsel appears to have relied on in the charging document against Flynn – but instead of using the far more popular term “sanctions,” Gauhar was careful to write down “expulsions.”
Someone else was careful to use the word “expulsions” too: Peter Strzok. He used it in two key places. The handwritten notes he made about the Flynn interview – whenever he actually made them – contain the single word “expulsions” as an unexpanded notation (see page 7).*
In October 2019, Flynn’s attorney Sidney Powell filed a document with the court in which these notes were an exhibit. The word “expulsions” was transcribed by her team, in typed form, as “expectations.” However, once we know which word we’re on the hunt for, it’s clear the handwritten reference is to “expulsions.”
The only reference to “sanctions,” on page 5, is an allusion to Treasury sanctions “still awaiting Treasury action,” in a timeframe that appears to be linked to a meeting weeks earlier with Kislyak and Jared Kushner.
The second set of notes – the longer one, taken by Joe Pientka – has only the most elliptical allusions to the topic of the expulsions. These can be parsed out starting with the “Kislyak – RePP?” line on page 4 because of similar wording in the expulsions discussion recorded in the Flynn 302 later filed in February 2017 (see below). (The shorthand “RePP?” may mean “re presidential proclamation”; i.e., the Obama announcement of the measures against Russia on 29 December 2016.)
And that is actually very interesting. One point to be made, of course, is that Strzok and Pientka went in knowing full well what Flynn and Kislyak had talked about in the late-December phone calls. They knew there was no point in asking about a discussion of sanctions, per se, because they were well aware sanctions were not discussed.
But the edited, and twice-filed, FD-302 from the Flynn interview doubled down on the one reference in the Strzok notes to expulsions. The 302 referred to expulsions multiple times in its record of an extended conversation about them with Flynn – which the notes don’t in themselves support. Regardless of how good their memories are, if there was that much to record about the expulsions discussion in the Flynn interview, the agents would probably have written it down in more detail at the time. In hindsight, it appears that the 302 was edited to reflect more material from the monitored phone calls themselves than Flynn actually discussed with the two FBI agents.
To complete this point: the word “sanction” (or “sanctions”) doesn’t appear in the unredacted portions of either version of the 302, from 15 February 2017 or 31 May 2017. (It is also not present in the less-redacted version used as an exhibit in the October 2019 Flynn-Powell court filing.)
“Expulsions” were the buzzword because they served an Obamagate purpose
This matters beyond the technical issue that the wording of the SCO charging document doesn’t comport with what Strzok and Pientka actually asked Flynn about, and could therefore have received false statements about. Certainly that issue, and the Mueller Report’s misleading use of the word “sanctions,” must shake our faith in the bona fides of the SCO process.
But the great emphasis on speaking of “expulsions” in January (and into February) of 2017 is a flashing red light, when juxtaposed with the special counsel’s sudden scoot away from that wording entirely, and settling instead on “sanctions.”
How great was the emphasis on “expulsions”? Readers probably don’t remember it, but the first report by David Ignatius of the leak about the Flynn-Kislyak phone call referred to – you guessed it – “expulsions.” Which Ignatius immediately, to the convenience of the Obamagate purpose, proceeded to conflate with “sanctions.” (It’s right there in the next sentence.)
Within a couple of weeks, it was routine for most of the media to allude instead to “sanctions.” But the 12 January Ignatius piece spoke of expulsions, and so did the widely-cited 9 February 2017 article in the Washington Post, which gave the basic outline of what would become the standard “Flynn false statement” narrative.
The following day, 10 February, Peter Strzok texted with Lisa Page (pp. 10-12) about the WaPo article, and about being in the throes of editing the Flynn 302. On 14 February, Page referred to the 302 as having Andy’s (Andrew McCabe’s) approval. It was then filed in the system on 15 February 2017, stuffed full of the word “expulsions.”
Also noteworthy: when VP-elect Mike Pence went on the Sunday shows in mid-January after the initial Ignatius piece, he spoke of Flynn and Kislyak having not discussed the “expulsions” (or “expelling Russians”). The reason for that was clear: Pence was responding to the allegation in the Ignatius piece. The word Ignatius used was “expulsions.”
The sudden onset of “expulsions” flaring across the landscape died down fairly quickly. Practically everyone forgot that it was the expulsions of Russian personnel – not the U.S. Treasury Department sanctions against Russian entities and officials – that Flynn and Kislyak were actually supposed to have talked about.
But that odd bait-and-switch now looks like a clue to how the Russiagate/Spygate – indeed, let us truly say, the Obamagate – attack on Trump was maneuvered through the presidential transition.
Why is it a clue? Because no one in the administration, and I mean no one, was talking about expelling 35 Russians from the country until the day Obama did it, 29 December 2016.
Only the White House, and some silent, seemingly furtive in-group, knew about the plan.
The real-world scramble to invest the expulsion of Russian diplomats with meaning
In fact, the State Department had to scramble to get the messaging right. In retrospect, it doesn’t appear that State was in the much loop on the planning (whenever it began) for the expulsions.
Reuters was on the Foggy Bottom beat and got some perfunctory verbiage early on about the harassment of Americans in Russia.
But State didn’t seem to know quite where to go with it. Obama’s statement about the expulsions and the sanctions put it out there with little substance. The Obama statement mentioned the harassment, but also implied that the main thrust of the overall 29 December package, including the expulsions, was retaliation for the attempted election interference by the Russians.
By the morning of 30 December, the messaging from Foggy Bottom had shifted to a somewhat incoherent hybrid of the harassment theme and a theme that the expelled Russians were involved in sneaky intelligence activities, and running them out on a rail was a way of stressing U.S. unhappiness with the maneuvers of Russian intelligence against our 2016 election.
Eventually the “sneaky intelligence operatives” theme seemed to have fought its way to the fore. But another Reuters report that received multiple updates settled for atmospherics like the somber departure of the expelled Russians, and the opinion of neighbors near their newly-prohibited compounds that they were a “lively bunch” who like to water ski. The State Department never did seem to have its head in the game during the expulsions drama.
Obama communications official Mark Stroh spearheaded a White House press event for the Russian package the day of Obama’s announcement, and the expulsions were represented at that event as something of an add-on as well. The incorporation of the expulsions as a retaliation against Russian intelligence had the character of on-the-fly theme development.
That was probably inevitable, considering they had not been mentioned in the build-up beforehand. Obama first indicated that something like sanctions would be coming in a press conference on 15 December 2016. There was no mention of identifying Russian intelligence operatives under diplomatic cover in the U.S. and kicking them out of the country.
The Washington Post carried the canonical “leak” preview of Obama’s plans on 27 December, and that treatment outlined Treasury sanction measures, which Obama would be undertaking under the auspices of a newly updated Executive Order 12694, a 2015 order dealing with sanctioning cyber-attacks. The WaPo story contained no reference to the impending expulsions. A CNN summary on 28 December seemed to very briefly imply something along the lines of expulsion, which may have been what prompted Kislyak to text Flynn urgently on the 28th to set up a phone call. But the CNN report had no details.
It was notable, moreover, that the administration officials gathered for the 29 December White House press event (link above) had a lot to say about the sanctions and the promised release of a joint FBI-DHS report on the cyber-threat Russia had represented during the 2016 campaign season. The officials were obviously well prepared for those topics.
But State had little to say about the expulsions – unquestionably the measure with the most impact – beyond noting the previously lamented harassment of Americans in Russia.
So it kind of looks like a set-up of Kislyak and the Russians, to spring the expulsions on the world without preview on Thursday, 29 December 2016.
It certainly explains why Michael Flynn would tell the FBI agents a month later that the Trump team had been taken by surprise on the expulsions (see agent notes and the 302).
In an interesting twist, the State Department continued to have little to say about the expulsions, when its daily briefings resumed the week after the New Year. The first State daily briefing after the measures against Russia were announced was on 3 January 2017. (Other daily briefings can be accessed at this link.) The media didn’t ask on 3 January for any elaboration on the theme-lets that meandered around on 29-30 December, nor did DOS spokesman John Kirby offer any. The only media question was about the discrepancy between Foreign Minister Sergei Lavrov’s desire to expel Americans from Russia on a reciprocal basis, and the decision by Putin to refrain from retaliating.
In retrospect, that media question seems a bit loaded, given how quickly the whole thing had subsided to a non-story. Lavrov had come out shortly after the 29 December announcement of the Obama package, arguing for reciprocal expulsions from Russia. His media statement was followed within a couple of hours by a Putin decision that there would be no retaliatory expulsions.
Curiously, this received very little development as a theme in the month of January. I say curiously, because the FBI (or someone) was clearly anxious to question Michael Flynn about his discussions with Ambassador Kislyak on the topic of expulsions, and to ensure the formal record at the FBI and DOJ featured expulsions prominently. Meanwhile, the word “expulsions” was being kept on life support outside the FBI with a series of media treatments.
A narrative is placed
Then, on 9 February 2017, seemingly in a delayed reaction, WaPo’s story was published explicitly tying the Flynn-Kislyak discussion to Putin’s non-retaliation decision. That seemed to be when the already-departed Obama administration finally had its ducks lined up to “realize” that the Flynn-Kislyak chat on 29 December might have influenced Putin to pull his punches.
That, at least, was when the narrative was deployed in the media. (Emphasis added.)
Official concern about Flynn’s interactions with Kislyak was heightened when Putin declared on Dec. 30 that Moscow would not retaliate after the Obama administration announced a day earlier the expulsion of 35 suspected Russian spies and the forced closure of Russian-owned compounds in Maryland and New York. …
Trump responded with effusive praise for Putin. “Great move on the delay,” he said in a posting to his Twitter account. “I always knew he was very smart.”
Putin’s reaction cut against a long practice of reciprocation on diplomatic expulsions, and came after his foreign minister had vowed that there would be reprisals against the United States.
Putin’s muted response — which took White House officials by surprise — raised some officials’ suspicions that Moscow may have been promised a reprieve, and triggered a search by U.S. spy agencies for clues.
“Something happened in those 24 hours” between Obama’s announcement and Putin’s response, a former senior U.S. official said. Officials began poring over intelligence reports, intercepted communications and diplomatic cables, and saw evidence that Flynn and Kislyak had communicated by text and telephone around the time of the announcement.
Note the paragraph after the emphasized passage. It became James Comey’s talking point for years afterward, a sort of all-purpose aperture to both past and future, explaining whatever surreptitious means were being used to snoop on the Trump team, as well as becoming the de facto plot device on which to justify filleting Flynn and grilling him to a crisp.
Yet between 29 December 2016 and 20 January 2017, the Obama administration itself didn’t emphasize surprise about Putin’s decision on the expulsions. The media propounded a small flurry of surprise noises on 30 December, when Putin’s decision was announced. But the Obama administration had little to say – until suddenly, five weeks later, its former officials started telling the media of their alarms and suspicions on that head.
The long view: A prior strategy
This whole scenario can’t help looking like a concoction. What I would emphasize, to bring it all together, is that Obama’s package of measures announced on 29 December 2016 was probably not assembled independently of its utility for surprising, and potentially implicating, the Trump team.
The reason for considering it in that light is simple. From the beginning of the Obamagate effort, there was clearly a strategic plan to co-implicate both Team Trump and Russia. The outlines of it were visible at least as early as the Fusion GPS agreement with Christopher Steele and Orbis Business Intelligence in May 2016. But Lee Smith, in his book The Plot Against the President, reports having seen a “proto-dossier” with purported Trump-Russia allegations that had been assembled even earlier than that. The “dossiers” were the story-boards of the strategy.
In its final year in office, nothing the Obama administration did that touched both Russia and the Trump team was done without reference to this strategic narrative.
Now note that on the day of the sanctions announcement (29 December), the White House had this to say about its expectations of Russia:
I’d also note that this should come as no surprise to the Russian government, given that we have warned publicly and privately, including directly from President Obama to President Putin, that there would be a response for these Russian actions. So, again, we’ve been very clear about our intent here.
Certainly the Treasury sanctions wouldn’t have come as a surprise to the Russian government. As regards the sanctions, Team Obama had no reason to be on an anxious lookout for Russia’s reaction.
Yet the story, by 9 February 2017, had become that Team Obama did suffer just such anxiety on 29 December, and therefore had to scurry off to dig for obscure phone calls between incoming Trump officials and Russians to account for the disquieting surprise of a muted reaction from Putin.
What intervened between these two snatches of exposition was the unheralded expulsion measure. It flashed in the pan long enough to feature in a couple of Flynn-Kislyak phone calls, some Strzok-Page texts, a heavily edited 302, a DOJ-FBI meeting, and a handful of media treatments – and then was gone.
Well, except for the unending risk at which it has now held Michael Flynn for more than three years, under the alt-banner of “sanctions.”
* In her original analysis of these notes, Sidney Powell thought they must be the other agent’s, based on Strzok’s own debriefing 302 (Attachment; scroll down) when he left the special counsel office (SCO) in August 2017. Strzok said he had conducted the interview with Flynn, and took the interview notes. When two sets of notes were released by the DOJ in October 2019, Powell assumed the longer, more complete notes to be Strzok’s. Later, when Strzok’s handwritten notes were released from James Comey’s debriefing to his staff of the 5 January 2017 meeting with Obama in the Oval Office, it became clear from the handwriting that the shorter set of 24 January notes, containing the word “expulsions,” was from Strzok.