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.

Im-Politic: Why the Impeachment Case Isn’t Even Remotely Serious Yet

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collusion, Deep State, Democrats, foreign aid, House of Representatives, Hunter Biden, Im-Politic, impeachment, Joe Biden, military aid, Mueller investigation, Nancy Pelosi, Trump, Trump-Russia, Ukraine, Viktor Shokin, Volodymyr Zelensky

OK, it’s not a verifiably un-doctored recording (apparently, they’re never available) – even though nearly all the Democratic members of the House of Representatives and many of the party’s presidential candidates view it as more than enough to warrant President Trump’s impeachment. (Removal from office? We’ve heard much less on that related but separate matter.)

All the same, the record of President Trump’s July 25 phone call with his Ukrainian counterpart, Volodymyr Zelensky, sure doesn’t look like a Nixonian smoking gun to me – and yes, in the interests of full disclosure, I strongly support many of Mr. Trump’s policies.

The allegations that led the President to release this document – which was apparently prepared via the same procedures normally used for all such confidential conversations – haven’t always been made with exactly surgical precision. So in this vein, the most useful version may come from an opinion article written for the Washington Post by seven freshman Democratic House Members.

Because of the prior national security experience all of them boast, and their reputations for moderation, the concerns they expressed yesterday reportedly imbued the push for impeachment with enough momentum to spur House Speaker Nancy Pelosi to authorize the launch of an “official impeachment inquiry” – an unusual procedure that seems to have no bearing on the various ways that this body has initiated impeachment proceedings in the past, and that certainly doesn’t guarantee the holding of the kind of full House vote needed to impeach and move to a Senate trial to determine removal.

Here’s what those seven first-term Democrats wrote:

“The president of the United States may have used his position to pressure a foreign country into investigating a political opponent, and he sought to use U.S. taxpayer dollars as leverage to do it. He allegedly sought to use the very security assistance dollars appropriated by Congress to create stability in the world, to help root out corruption and to protect our national security interests, for his own personal gain.”

But the way I read it, nothing in this version of the conversation does much to support either charge. Some of the key passages seem to be the following:

“President Zelenskyy: … I would also like to thank you for your great support in the area of defense. We are ready to continue to cooperate for the next steps specifically we are almost. ready to buy more Javelins [portable anti-tank missiles] from the United· States for defense purposes.

“The President [Trump]: I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike… I guess you have one of your wealthy people… The server, they say Ukraine has it. There-are a lot. of things that went on, the whole situation . I think you’re surrounding yourself with some of the same people. I .would like to have the Attorney General call you or your people and I would like you to get to the bottom of it. As you saw yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, ·it’s very important that you do it if that’s possible.”

Despite the non-coercive language, President Trump clearly established a quid pro quo involving U.S. military aid and Ukrainian cooperation on an investigation having to do with American politics. For me, the key is his use of the word “though” in his first sentence. (Not that Mr. Trump will win any articulateness awards.)

But where is the evidence that the quid pro quo involves a simple “political opponent,” as the seven House Democrats insist? (Obviously, it’s former Vice President and current Democratic presidential hopeful Joe Biden.) Everything in this passage, from his mention of “Crowdstrike” to the “nonsense” that “ended with a very poor performance” by Robert Mueller has to do with:

>the accusations (which that former Special Counsel’s investigation’s findings determined were untrue) that Mr. Trump’s 2016 presidential campaign colluded with the Russian government to ensure his election at the expense of Democratic rival Hillary Clinton; and

>the counter-accusation that those Russia collusion charges were manufactured by Mr. Trump’s opponents in the FBI, the intelligence community, elsewhere in the so-called Deep State, and the Obama administration. (This possibility is currently being investigated by the Trump Justice Department.)

That counter-accusation is especially important here. If anything like it is true, it’s imperative for the health of American democracy that it be discovered. And in turn, if a foreign government like Ukraine’s can shed light on the facts, why wouldn’t anyone except the guilty and their allies want Washington to use foreign policy leverage to achieve that result – which would unmistakably serve important U.S. national interests.

Of course, Biden’s name did appear in the five-page document – about a page after the above passages – in this statement from Mr. Trump:

“The other thing, There’s a lot talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it… It sounds horrible to me.”

These sentences have to do with a Ukrainian probe of the ties between Biden’s son Hunter and a Ukrainian energy company – and Biden’s public boast in 2018 that, as Vice President, in 2016, he secured the firing of a Ukrainian prosecutor who had vowed to investigate the company in question by threatening to withhold a billion-dollar American loan package if that official, Viktor Shokin, stayed in office.

His supporters contend that the quid pro quo Biden offered differed fundamentally from the Biden quid pro quo that Mr. Trump seems to have presented in his July phone call because Biden was carrying out firmly established U.S. government policy in order to serve the country’s national interests while President Trump’s interests were purely selfish and political.

All of which could be true. Except the 2016 date of the Biden episode should warn against imputing purely or even mainly non-political motives to his actions. In this vein, revelations during a presidential election year that Biden’s son was involved in shady or even criminal foreign doings certainly wouldn’t help the fortunes of the incumbent administration’s political party – so the former Vice President’s motivations might have been exclusively political.

Some considerations on this score do work in Biden’s favor, though – mainly evidence that Western European governments and the International Monetary Fund, all of which were complaining that Ukrainian corruption was undercutting their own aid programs, also sought Shokin’s firing. But illicit activity in Ukraine has been so pervasive that these non-American actors might have their own embarrassments to hide.

Just as important: If the Vice President of a previous administration, or any of his colleagues, was manipulating American foreign policy to cover up the activities of the Veep’s son, isn’t something that urgently requires examination from a national interest standpoint? Wouldn’t this be the case whether that former Vice President was currently running for office or not? In fact, wouldn’t that especially be the case if that former Vice President was running for office?

To be sure, the seven freshman Democrats also appear to be accusing President Trump of pressuring Ukraine to help dig up dirt on the Bidens (again, for solely political reasons) by freezing the disbursement of a previously approved military assistance package shortly before his phone call with Zelensky. 

Mr. Trump has admitted doing so, and as has been pointed out, he’s offered different explanations for this decision (which was overturned earlier this month). I agree that sounds fishy. But the reasons themselves (that other U.S. allies were shirking their obligations to help Ukraine, and that continuing Ukrainian corruption could prevent many of the funds from being spent effectively) are anything but ludicrous.

Also interesting:  More than three weeks before the aid freeze was first revealed by the Washington Post – and connected with the Zelensky phone call – ABC News reported that the administration was sitting on the Ukraine military assistance but not as part of any campaign to undermine Biden. Instead, the delay stemmed from a broad debate between Trump administration supporters of foreign aid generally and colleagues who were highly critical. The main reported complaints from Democrats had nothing to do with Biden, either. They centered on the President’s supposedly excessive coziness with Russian leader Vladimir Putin.

And most interesting of all:  Mr. Trump never brought up the frozen aid in his phone conversation with Zelensky. If the seven freshman Democrats are right and the President had blocked spending the funds “for his own personal gain,” why didn’t he even signal this blackmail attempt to its target?        

Ongoing and broadening investigations of all these controversies by Congressional committees and by the Justice Department could well provide definitive answers to all the above questions, and even produce more and/or worse bombshells. Indeed, maybe the phone call document itself has been doctored. But when it comes to impeachment, or even besmirching the Trump record, that’s exactly what should be the main point now. There haven’t been such answers or bombshells yet. And until some start appearing, talking up impeachment will continue looking  like a thoroughly reckless course of action – and one with plenty of boomerang potential.