Im-Politic: Flynn-Flamm

Tags

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.

(What’s Left of) Our Economy: Is the Offshoring Lobby Shaping U.S. China Policy Once More?

Tags

Bob Davis, China, Logan Act, offshoring lobby, Robert Mueller, Special Counsel, The Wall Street Journal, Trade, Trump, U.S. Chamber of Commerce, {What's Left of) Our Economy

Quite the nugget that came near the end of The Wall Street Journal‘s April 29 report on the run-up to the upcoming U.S. trade talks with China scheduled to begin in Beijing this week:

“During the past few weeks, China’s ambassador to the U.S., Cui Tiankai, and the U.S. Chamber of Commerce’s executive director, Myron Brilliant, operating as a backchannel between the two governments, called on their extensive contacts in Washington to try to get talks going again.”

It’s bizarre on so many levels. Most notably, but far from certainly, is the possibility that President Trump (whose campaign for the White House emphasized remaking America’s China trade and broader economic policies specifically to promote U.S. growth and employment) is being significantly influenced by the Chamber of Commerce (which has long championed a China policy that helps America-based businesses supply the lucrative U.S. market from super low-cost and largely unregulated China)?

That would be some kick in the pants to Trump supporters expecting the President to keep his China trade campaign promises.

Alternatively, the President might simply have been using the Chamber as a means of communication. But this decision would be puzzling, too, since the United States maintains a big embassy in Beijing, complete with a full-fledged ambassador, as well as numerous other official ways to talk with the Chinese. What could the Chamber add?

It’s even more interesting, and potentially important, to consider the chances that the Chamber took the initiative. If so, could the Logan Act have been violated? You may remember that this is a U.S. law requiring criminal penalties for

“Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States….”

You might also remember that in the wake of former Trump national security adviser Michael Flynn’s admission of lying to the FBI in connection with the the Bureau’s Trump Russia collusion investigation, calls proliferated to prosecute him – and other Trump-ers – for violations of this (little used) eighteenth century statute. No one outside his office knows whether Special Counsel Robert Mueller is looking into this possibility in its own probe, but this former Chairman of the organization Common Cause believes he should. If the Chamber was acting as a free agent, might it be in legal jeopardy, too?

I asked Bob Davis, a co-author of the Journal piece, about how this backchannel began, and he responded that he couldn’t go beyond his description of the actions he was told about. Which is of course fair enough for any reporter.

What should be clear, however, is that, if the Journal report is accurate, neither of the above explanations should comfort anyone, whatever their views on U.S.-China trade issues. The former could signal the imminent shattering of a campaign promise – which could only fuel further corrosive public cynicism about American politics. The latter could indicate that special interests unaccountable to the American people keep wielding ever greater influence over the nation’s policies – including those extending “beyond the water’s edge.”

So let’s all hope that Davis and his Journal colleague will keep digging, and/or that other reporters start.

Im-Politic: The Trump-ers and the Russians

Tags

2016 election, Barack Obama, Hillary Clinton, Im-Politic, Jeff Sessions, Logan Act, Michael T. Flynn, Russia, Sergey Kislyak, Trump, U.S. intelligence, Vladimir Putin

The more I read about the firestorm that has erupted over possible contacts between officials of and advisers to President Trump’s campaign for the White House, his transition team, and members of his new administration on the one hand, and the Russian government and/or its agents on the other, the less sense any of it makes to me.

That goes double – at least – for the charge that is only rarely made explicit but that is central to this entire uproar: that Trump’s outsider nature and supposedly authoritarian, anti-democratic instincts opened the door to an alliance with Russian leader Vladimir Putin that aided his November victory. More specifically, insinuations have been made that figures either officially or unofficially associated with Mr. Trump “colluded” with the Russians in their efforts to undermine Democratic candidate Hillary Clinton’s presidential bid.

Of course, the fire keeps getting fueled by the failure of the supposed Trump-ist conspirators to provide forthright answers to questions about their recent contacts with Putin’s aides and surrogates. By their own belated admissions now, the president’s briefly serving White House national security adviser Michael T. Flynn and his Attorney General, former Senator Jeff Sessions, held either meetings or communications with Russia’s ambassador to the United States during the transition and campaign, respectively, that they did not originally acknowledge.

Nothing could have been easier, the entirely reasonable argument goes, than for them to have been up front right away. Flynn, for example, is alleged to have broken with an important American tradition that only one person serves as president at a time when he spoke with Ambassador Sergey Kislyak about America’s anti-Russia sanctions. It’s true that former President Obama’s second term ran through midday, January 20, and that he and his officials alone possessed the authority to conduct the nation’s foreign relations. In addition, Flynn might have violated a law preventing private citizens from interfering with official American diplomacy – though it’s unclear whether the Logan Act applies to transition team officials like Flynn at the time.

But wouldn’t the former general have been much better off – let alone Mr. Trump – had he simply stated that he broached the subject of sanctions (as opposed to simply introducing himself and starting to get acquainted) because Russia is an important country and he wanted to help the administration hit the ground running?

And Sessions has now stated that his original answers at his Senate confirmation regarding such meetings assumed that the questions were focused on meetings dealing with his position in the Trump campaign and that concerned campaign matters. But why engage in such Clintonian parsing if everything was on the up and up?

After all, his first such contact with Kislyak took place at the Republican National Convention in Cleveland, Ohio, at a meeting co-sponsored by the Obama State Department. The second – also with Kislyak – took place in his Senate office, in September. As a senior member of the Senate Armed Services Committee, what could be more natural than a lawmaker meeting with a representative of a major power? The answer? “Nothing.” Such events have become routine – and should be, if Congress is to play the important role in foreign policymaking assigned it by the Constitution. How difficult would it have been for Sessions to make these points in the first place?

One obvious retort is that the president’s enemies are so loaded for bear that even such reasonable explanations wouldn’t have satisfied them – and were likeliest to egg them on further. But it should be equally obvious that the real political prize here is the American middle, which historically has a knack for distinguishing the truth-tellers from the fear-mongers.

Even more bizarre, however (and that’s a high bar!), is the more fundamental notion that the Russians thought a concerted effort to fix the U.S. election was a stroke of genius. That may indeed have been the case – I sure don’t have any inside info on the Kremlin. But let me count the biggest reasons why Putin should have laughed out of his office anyone who made this proposal.

First, with his KGB background, Putin of all people should know that it’s almost impossible to keep any significant secrets in the American political world, let alone one this big. One major reason, of course – this plan would have had to have been kept from any number of foreign intelligence services as well, if only because so many other national governments have big stakes in American presidential elections, too.

Second, precisely because of these excellent chances of discovery, the upside of any successful election rigging would have been severely limited. Had Clinton won, after all, at least for the medium term, Moscow would have guaranteed that Barack Obama’s successor would have taken much harder-line anti-Russian positions across the board in American foreign policy. But even had the alleged plot succeeded, every word or action taken by Mr. Trump suggesting a more conciliatory policy would – as has been clear already – have come under the harshest suspicion. Indeed, the new administration has faced continuing heavy pressure to demonstrate what might be called some anti-Russia street cred – on top of already having named some prominent Russia hawks to key posts.

Third, the cost-benefit calculus of a political interference campaign looks even worse upon recalling the conventional wisdom that Mr. Trump was heading toward an historic defeat at the polls. Why take major chances on behalf of such a likely and big loser? In this vein, it’s fascinating to note that the January American intelligence community report on the Russian influence campaign suggested that the Kremlin (as with so many others) anticipated a Clinton win as late as election night.

Fourth, if Russian intelligence was even minimally competent, it would have known that a Trump presidency would have been more favorable to Moscow even without actively cooperation with his presidential campaign. For Mr. Trump had long criticized U.S. foreign policymaking for picking needless overseas fights that too often turned into bloody and hideously expensive quagmires (like the second Iraq war). And for even longer he had insisted that America’s military actions abroad be restricted to crises where the nation’s security was directly threatened.

But as indicated above, the American intelligence community has stated that Putin – although concerned about a “backfire” effect from direct Putin praise of candidate Trump – did in fact order precisely this kind of anti-Clinton, pro-Trump “influence campaign”. Given all the claims from every quarter of American politics that the Russian leader is a diabolically dangerous mastermind, this decision simply adds to my list of “Russia-gate” developments that I find completely mystifying.

Not that my own befuddlement means that there’s no fire behind any of this smoke, or that Russian interference in U.S. elections should be accepted simply because it might have been ineptly conceived or carried out. (What if Moscow or others one day get the hang of this?) Until and unless much more serious disclosures emerge, however, it could well mean that Trump-haters and the Mainstream Media need to hold their hysteria about the Trump-Russia connection. And the president and his team stop needlessly shooting themselves in their feet.