Im-Politic: Flynn-Flamm

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Barack Obama, collusion, election 2016, FBI, Federal Bureau of Investigation, Im-Politic, James Comey, Justice Department, Logan Act, Michael T. Flynn, Mueller investigation, Russia, Sally B. Yates, Sergey Kislyak, Susan E. Rice, Trump, William P. Barr

So let’s wade right into the (latest) Michael T. Flynn uproar.

Unless you’ve been living under the proverbial rock for the past few weeks, you know that Flynn is the former Army Lieutenant General and head of the Pentagon’s intelligence chief (during the Obama administration) who served briefly as President Trump’s national security adviser. He resigned in February, 2017 after stating that he misled Vice President Mike Pence about the content of conversations he held during the transition period with Russia’s ambassador to the United States. That December, he was indicted by the Special Counsel Robert Mueller’s Trump Russia collusion investigators for lying to the FBI during interviews in January with Bureau agents in the course of their investigation into his activities, and also pled guilty to the charges.

More recently, after Flynn sought to withdraw this plea, Attorney General William P. Barr appointed a career federal prosecutor to review the case, and in light of newly released FBI documents indicating serious irregularities in the Bureau’s handling of the case, Barr agreed to the prosecutor’s recommendation that the case be dismissed altogether. A federal judge will make the final decision.

This summary, though, scarcely begins to do justice to all the ins and outs and other complexities of the Flynn case. Dealing with them would require a  post even longer than this one will be! But one dimension of the case with unusual importance concerns former President Obama’s actions, specifically because of the recent declassification of an email written by his own former national security adviser, Susan E. Rice, about a meeting held among Obama, former Vice President and presumptive Democratic Party presidential nominee Joe Biden, and the former heads of the FBI and Justice Department.

The Obama angle has of course generated claims that his administration’s handling of Flynn and other aspects of its investigation of the Trump campaign’s interactions with Russia amount to a major scandal – which Mr. Trump himself calls “Obamagate” and which others portray as nothing less than an effort to overthrow his presidency. To me, these charges should be looked into, but remain to be proved. (In fact, the Justice Department is probing the entire investigation into Russian election interference and the Trump campaign that took place during the Obama years, and the long-awaited report seems likely to be released before Election Day.)

In the absence of this report, what interests me right now is the question of why Obama didn’t quash the FBI investigation of Flynn during that January 5 meeting – which took place just over two weeks before his presidency officially ended. And the Rice email makes clear just how fishy his decision was.

According to this communication, which Rice sent to herself on Inauguration Day, the January 5 White House meeting was “a brief follow-on conversation” that took place right after Obama, Biden, Acting Attorney General Sally B. Yates, FBI Director James Comey, and Rice were briefed by the leaders of the intelligence community “on Russian hacking during the 2016 Presidential election.” And Flynn was a major subject of the conversation.

Flynn was highlighted due to the former President’s professed determination to (in Rice’s words) “be sure that as we engage with the incoming [Trump] team [during the transition], we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.”

Comey responded (in Rice’s words again), “that he does have some concerns that incoming NSA [national security adviser] Flynn is speaking frequently with Russian Ambassador [Sergey] Kislyak. Comey said that could be an issue as it relates to sharing sensitive information.”

Now comes something really important. Rice continued:

“President Obama asked if Comey was saying that the NSC [National Security Council] should not pass sensitive information related to Russia to Flynn. Comey replied ‘potentially.’ He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that ‘the level of communication is unusual.’

“The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.”

This Obama response is what raises so many questions. First, back in late January, 2017, the Washington Post reported that the FBI “in late December reviewed intercepts of communications between the Russian ambassador to the United States and retired Lt. Gen. Michael T. Flynn — national security adviser to then-President-elect Trump….”

This report was confirmed in the exhibits accompanying the Justice Department’s May 7, 2020 motion to dismiss the charges against Flynn. So apparently, Comey was privy to the Flynn-Kislyak conversations more than two weeks before the January 5 meeting with Obama. During that time, the Rice email states, he reported finding no evidence, or even any “indication,” that Flynn had passed sensitive information to Russia. All he said he uncovered information that he interpreted “potentially” meant that Flynn was untrustworthy.

At least as important, there’s compelling evidence that Obama himself knew the content of the Flynn-Kislyak conversations.  It comes in the form of testimony given by Yates to the Mueller investigators in September, 2017 and described in a September 7 FBI description contained in Exhibit 4 (page 2) of the Justice Department’s motion to dismiss.  She stated that during the January 5 meeting, Obama revealed he had “learned of the information about Flynn,” including not only about the fact that the conversations took place, but about their key subject.

Yates added that Obama at that point specified that he didn’t want “any additional information on the matter” (the FBI’s phrasing) but wanted enough provided (presumably to his aides) to guide the outgoing administration as to whether Flynn could be trusted. In other words, not only does Yates’ testimony add a crucial detail. It also supports the essentials of Rice’s account.

Of course, if the former President was aware of what Flynn and Kislyak discussed, he also must have known that no classified information had been passed to the Russian. Nor according to Rice did he express any other concerns. 

And this episode doesn’t mark the first time that Obama was surely made aware that an FBI investigation of Flynn had turned up nothing legitimately troubling.  For on August 16, 2016, as documented in Exhibit 2 of the motion to disniss, the Bureau began probing whether Flynn, who it identified as a foreign policy adviser to the Trump campaign,

“is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act [which requires any Americans working for foreign government, political parties, individuals, or other principals – though not U.S. affiliates of foreign-owned companies – to register with the Justice Department and report the nature of the relationship].”

Sounds pretty serious, right? Except in a January 4, 2017 memo – presented as Exhibit 1 of the motion to dismiss – the Bureau’s Washington field office reported its decision to close this investigation because the probe could identify “no derogatory information.”  Is it remotely conceivable that no one told the former President?

The story of this particular investigation, however, doesn’t stop there.  The memo not only wasn’t approved.  As the motion to dismiss recounts (page 4), ostensibly because the FBI’s top leaders (including Comey) had learned of the Flynn-Kislyak conversations, they kept the Flynn probe alive – even though, presumably, they knew they contained no incriminating or otherwise disturbing material, or certainly never reported such to Obama, including up to and including the January 5 meeting.    

The transcripts, though, suggested another possibility for nailing Flynn – a possible violation of the the Logan Act.  But this course of action was pretty problematic, too.  This law, dating from 1798 aimed at preventing private American citizens or other legal residents from interfering with the conduct of U.S. diplomacy.

That’s an entirely legitimate purpose. But throughout the entirety of American history, only two individals have even been indicted for violating the act (most recently, in 1853) and neither was convicted.

The FBI’s interest in such possible Flynn transgressions seems to have originated in purported Obama administration worries that before Inauguration Day, Flynn was engaged in such interference on two different fronts – an upcoming United Nations vote to condemn Israel, and a December 29 Obama decision to sanction Russia on the grounds of election interference.

Yet Flynn ultimately wasn’t indicted (and convicted) for anything having to do with the Logan Act, or anything having to do with his Russia conversations or with the UN business. His only alleged crime (to which he pled guilty) was making materially false statements and omissions” to the FBI about these subjects.

At this point, an obvious choice must have confronted Obama – who must have known that the transcripts absolved Flynn of the most serious offense he was suspected of committing – handing major official secrets to the Russians. He could have told Comey that further investigation of Flynn was pointless and to drop the matter – either because more than two recent weeks of surveillance had turned up nothing alarming; or because Flynn would begin serving in the new Trump administration only two weeks down the road, and would then have been entitled to view all the U.S government’s classified information; or because Obama realized that the Logan Act concerns were excuses for further surveillance of Flynn. Or he could have told Comey to continue (because he didn’t care why Flynn was pursued as long as the effort succeeded), along with directing Rice and all other U.S. officials to suspend sharing intelligence concerning Russia (or any other subject) with the Trump team (more out of some motive other than because of any genuine security concerns).

Instead, he told Comey to “inform him if anything changes in the next few weeks” – but also permitted Rice to continue intelligence sharing as normal. We know this because a May 19 statement by Rice’s lawyer on her behalf said that the former Obama aide “did not alter the way she briefed Michael Flynn on Russia as a result of Director Comey’s response.” This outcome, it must be noted, also supports the claim that Obama had no important security concerns about Flynn. All the same, Comey’s pursuit of Flynn remained ongoing.  

Unless Rice defied the President’s instructions despite her lawyer’s claim?  If not, and they were followed, then why didn’t Obama at any point between January 5 and the end of his administration halt the Comey investigation? Unless he did and Comey continued anyway? Possibly because the FBI chief wished to follow the former President’s instructions even after Obama had left office?  Whatever Comey’s motives, his pursuit of Flynn didn’t stop, and led to the January 24 FBI interview with the new national security adviser.      

Interestingly, that session also undercuts the idea that the Obama administration’s beef against Flynn had anything to do with national security.  For a partly declassified version of the FBI’s report on the January 24 meeting shows that neither of the agents who spoke with Flynn even brought up the matter of illegally passing classified or any sensitive information to Kislyak. Their exclusive concerns were Logan Act-related issues.

A final (for now) weird item: In its indictment, the Justice Department contended that “FLYNN’s false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals associated with the Campaign and Russia’s efforts to interfere with the 2016 presidential election.”

But of course, Flynn’s conversations with Kislyak took place after the election, not during the campaign. The only way they could have been related to the Trump campaign collusion allegations would be if they were the result of some secret deals concerning Russia policy made by Flynn or anyone else in the campaign with Moscow. Yet the exhaustive Mueller investigation of these matters found insufficient evidence to charge anyone in the Trump campaign with the crime of conspiring “with representatives of the Russian government to interfere in the 20q6 election.” And Flynn’s activities were included.

As mentioned above, the above analysis by no means exhausts all the questions raised by the Flynn uproar – including about Flynn’s dealings with foreign clients; about whether the FBI agents who interviewed Flynn concluded he was lying, or simply believed that his memory was faulty at time (and whether Comey himself was certain of Flynn’s dishonesty, as per the motion to dismiss, Exhibit 13, pages 3 and 4, and Exhibit 5, page 10, respectively); and about why, if the Obama administration viewed Flynn as a major threat to national security, no one ever told President-elect Trump promptly of their concerns, and instead chose a prosecution route that permitted Flynn to occupy an extremely crucial position for three weeks – and that risked his continuing in that post had he performed more skillfully during his session with the FBI.

Former Obama Acting Attorney General Yates has testified to Congress that she did tell then Trump White House Counsel Donald McGahn that Flynn’s false statements were known by the Russians, and therefore made him vulnerable to blackmail. But this warning wasn’t given until January 26 – six days after Mr. Trump assumed office, and Flynn became national security adviser. 

And then there’s perhaps the biggest Flynn-related mystery of all: whether the next few weeks will see more questions, or more answers.

Following Up: Hate Crimes, Trump, and New FBI Data

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African Americans, anti-semitism, FBI, Federal Bureau of Investigation, Following Up, hate crimes, Hispanics, illegal aliens, Islamic terrorism, Jews, Latinos, Muslims, neo-Nazis, Pittsburgh synagogue shooting, racism, Trump, white nationalists, xenophobia

Right after last month’s Pittsburgh synagogue murders, I wrote a post that used FBI hate crimes data to cast doubt on President Trump’s direct or indirect culpability – but closed by noting that the Bureau would soon be issuing numbers that bring the story up to 2017.

“Soon” arrived this week, and the new statistics do provide evidence for a “Trump effect” on hate crimes overall, and on the incidence of anti-semitic hate crimes in particular. At the same time (and I know Never Trump-ers won’t want to see this), much of the evidence is considerably mixed, especially when it comes to the charge that, as presidential candidate and chief executive, Mr. Trump has “activated” violent anti-Semites and other bigots – i.e., he’s emboldened all of them to turn their hatred into attacks on their target groups.

To base my analysis on more data than used in that previous post, I’ve gone back to each of the 2000-2005 years, and continued examining the numbers for each year through 2017. I’ve also looked at two different categories of data that logically shed the most light on these issues – the number of total known incidents for each of these years, and the number of total known offenders. (I also counted up the numbers of victims, but believe that, even though they track well with the other two data sets, they tell us a good deal less about the activation charge. So for brevity’s sake, I’ve left them out.)

The annual figures on total hate crimes incidents typify most of the patterns. The strongest evidence for the Trump effect consists of the changes in the number of incidents and offenders for 2015-2016, and 2016-2017. Recall the Mr. Trump declared his candidacy for president in June, 2015.

Between 2015 and 2016, the incidents figure rose by 4.63 percent, and then jumped by 17.22 percent the following year. The 2016-17 increase was the biggest in percentage terms since that between 2000 and 2001 (a 20.67 percent surge that partly consisted of reactions to the September 11 terror attacks in 2001).

Here, however, is where the activation narrative starts to lose some force. Principally, the 2015-2016 increase was much smaller than that recorded between 2005 and 2006 (7.80 percent). Was then-President George W. Bush unwittingly or not encouraging extremists? Were they becoming activated in opposition to some of his policies, like the Iraq War? The overall hate crimes numbers don’t yield any obvious answers, but clearly among some groups, national tempers were flaring back then.

Another complication: The absolute 2017 number of hate crimes – like the 2016 number – was the biggest in several years. Indeed, 2017’s 7,175 total hate crimes was the highest figure since 2008’s 7,783. But think about that for a moment. It means that the 2008 number was (significantly) higher. So were its counterparts for each year since 2000. Were those years of greater Presidential activation?

It’s tempting to blame a “September 11” effect during those years. Yet the figure for 2000 – the year before the terror strikes – was much higher (8,063) than 2017’s as well.

The offender numbers are even more puzzling from the activation standpoint – since presumably they’re the individuals being activated. They did rise by 14.46 percent between 2014 and 2015 – which covers the first six months of the Trump presidential campaign. But between 2015 and 2016 – when he was running all year and clearly was much more prominent in the national consciousness – the number of offenders actually declined by 2.91 percent.

The following year, Mr. Trump’s first in the Oval Office, offender numbers shot up again – by 10.40 percent. That increase, however, wasn’t that much larger in percentage terms than the rise during the Barack Obama year 2012-2013 (9.06 percent).

Further, looking at the makeup of these numbers (in terms of the target groups) produces even bigger mysteries. Specifically, that big 17.22 percent increase in the total number of hate crimes between 2016 and 2017 was keyed largely by a 37.13 percent jump in incidents targeting Jews. Consequently, the 2017 total reached 938 – the highest figure since, again, 2008 (another George W. Bush year). But as with overall incidents, this means that the 2008 figure (1,013) topped that for 2017 by an impressive margin. In addition, the 2017 total was exceeded no less than six times in all between 2000 and 2008.

More puzzles emerge from the offenders figures. The number targeting Jews increased 8.79 percent between 2015 and 2016, and by 24.23 percent between 2016 and 2017. The absolute numbers for those years (421 and 523, respectively) are also the two highest during the 2000-2017 period. So these figures also seem to bear out the accusation that President Trump has coddled neo-Nazi/”white nationalist” types in various ways and bears some responsibility for their crimes.

But leave aside the objections that Mr. Trump has welcomed Jews into his family, has worked with them in numerous ways during his business career, and has been a staunch supporter of Israel (all of which has enraged some of those neo-Nazis). Why did the numbers of anti-semitic perps skyrocket by 69.40 percent between 2012 and 2013?

Something else that doesn’t dovetail with the activation charges: Although candidate and President Trump have been accused of stoking racism and xenophobia along with anti-Semitism, the data indicate that any Trump effect in regard to African-Americans and Muslims has been much more muted.

The number of incidents figures show that reported hate crimes targeting Muslims nearly doubled between 2014 and 2015 (from 154 to 294), and then climbed by another 21.77 percent the following year. Maybe candidate Trump’s calls for a ban on Muslim immigration into the United States and for registering Muslims in a national data base deserve lots of blame? Possibly. But then why would anti-Muslim hate crimes have dropped by 7.54 percent in the President’s first year in office – when the Muslim ban effort was a top priority, and front-page news, for months.

Moreover, despite the belief that Mr. Trump’s support of “birther” claims against former President Obama, and a 7.65 percent increase in hate crimes against blacks between 2014 and 2015, these numbers have stayed virtually flat over the course of the President’s main campaigning year and his first year in office.

Evidence for Trump-ian activation that’s more compelling comes from the data on anti-Hispanic hate crimes. The numbers of incidents and offenders both rose strongly – by a record 42.73 percent for the former and by 29.21 percent for the latter between 2016 and 2017, when the President kept immigration issues front and center. As with so many of the other statistics, however, the latest absolute Trump Era numbers for both categories remains way below many pre-Trump annual levels.

That’s why it seems reasonably clear to me that the main driver of the hate crimes data isn’t presidential activation, and that it may not be a major influence at all. What are some possible alternative causes? In many cases, real world events. Two examples: First, the numbers of anti-Muslim hate crimes and violent haters arguably rose so robustly from 2014 on because that period has been marked by a shocking number of fatal terrorism strikes launched by Islamic extremists in both the United States and in Europe.

Second, the anti-Hispanic counterparts of these figures were so much higher during the previous decade than they are today because those years featured mounting efforts by the Open Borders lobby – including an unprecedented wage of protest and other forms of activism by illegal immigrants themselves – to demand more rights and government benefits for this illicit population.

This explanation doesn’t seem to apply to the levels and growth rates of anti-semitic hate crimes. But then again, this form of bigotry isn’t often called “the oldest hatred” for nothing. (Racism of course has been an historical constant as well in America and elsewhere.) 

It should go without saying (but maybe not in these highly charged and polarized times) that none of the events and developments cited immediately above can ever justify hate crimes or similar bigoted actions and beliefs. Nor does it signal a belief that the President has handled these incidents on his watch acceptably. As I’ve written repeatedly, he hasn’t. But what should be clear is that anyone seeking to understand anti-semitic and other hate crimes needs to look far beyond the White House.

Im-Politic: Clinton, Comey, and the Common Sense Test

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2016 election, classified material, emails, FBI, Federal Bureau of Investigation, Hillary Clinton, Im-Politic, indictment, James Comey, prosecutors, State Department

Yours truly is not a lawyer; never was a lawyer; has no legal education aside from one undergraduate class, harbors no current ambitions to be a lawyer; hasn’t wanted to become one for decades (since the thrill of visiting my late father’s office as a kid wore off); and doesn’t even find lawyer TV shows, movies, or novels all that interesting. Truth in advertising: I did take the law school admission test – because in economically stagnant mid-1970s America, what else was a humanities major supposed to do?

So I’m not qualified to comment from a legal standpoint on the legal aspects of the FBI’s decision not to indict Hillary Clinton. But here are some thoughts from the standpoint of common sense – with a special focus on the Bureau’s judgment that “no reasonable prosecutor” would recommend filing criminal charges against the presumptive Democratic presidential nominee and former Secretary of State.

First, Bureau Director James Comey undercut the “reasonable” part of this contention with his declaration that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” You don’t have to be nitpicker to recognize that this phrasing indicates that the FBI found some evidence of these intentions. I understand that the American system of justice grants prosecutors considerable discretion on such matters. But this discretion surely is not limitless. Is it really standard practice to absolve the subject of an investigation because some (unspecified) standard of clarity wasn’t met? Above all, was there no “reasonable” argument for allowing a trial to settle the question?

Second, Comey seemed to set an awfully high bar for indictment. Explaining that “Responsible decisions…consider the context of a person’s actions, and how similar situations have been handled in the past,” Comey presented a list of conditions that presumably would have to be satisfied:

“[C]learly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

Was Comey saying that all four conditions needed to be met? If so, he already ruled out the first. But the second looks fishy. Why do “vast quantities of materials” need to be exposed? Why not, say, a single document saying, e.g., “We’re attacking ISIS on June 1, at 4 PM EST”? Does quality, in other words, have no relevance in the FBI’s calculus?

Moreover, the contention that nothing qualifying as obstruction of justice could be found seems to clash with the finding that Clinton’s lawyers “cleaned their devices in such a way as to preclude complete forensic recovery. ” Since when do honest lawyers assisting an official criminal investigation not err on the side of caution? Indeed, Comey’s conclusion about the lawyers’ conduct was anything but conclusive:

“Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”

That is, there’s important evidence that’s still missing. And the Bureau qualified its determination with the phrases “we believe” and “reasonable (that legal mainstay again!) confidence.”

Third, Comey’s overall description of Clinton’s conduct looks like a classic instance of hair-splitting. As he sees it, her behavior was not “grossly negligent” – the apparent standard for criminality. Instead, it was “extremely careless.” What on earth is the difference outside the universe of apologists and public relations flacks?

Moreover, Comey’s definition of “gross negligence” evidently doesn’t encompass his findings that (his own words):

>“There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation”: and

>“we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government. ”

None of these points is meant to suggest that Comey’s judgments were incontrovertibly wrong or even unreasonable. They are meant to suggest that the call not to indict Clinton was incredibly close – so close, in fact, and raising so many further questions, that as suggested above, the proper place to resolve them is not inside a prosecutor’s office. It’s at an open criminal trial.

After he delivered the statement, Comey briskly walked off the stage without dealing with the crowd of slavering journalists assembled in front of him. That’s the recent decision of his I understand best.