The timing of the sanctions—in the waning days of Obama’s administration—appeared designed to box in the Trump administration and to provoke a response that could be twisted to prove that Trump was soft on Putin. On the same day, Flynn spoke to Kislyak by phone. That was not unusual. Flynn had made a condolence call to Kislyak on December 19 after a Russian ambassador had been murdered. He’d called on December 28, expressing condolences after a Russian plane had been shot down on its way to Syria. They discussed setting up a Trump-Putin phone call after the inauguration. Possibly a Trump administration official would visit Kazakhstan for a conference in late January.20
The next day, to the surprise of the intelligence community, Putin announced that there would be no response to the sanctions; Trump praised his comments on Twitter.21
The FBI had transcripts of the calls between Kislyak and Flynn. But those highly classified conversations apparently revealed no crime. If they had, why not just arrest Flynn? The FBI needed the media to gin up a controversy and give cover for monitoring the national security advisor’s phone calls. So someone leaked.
On January 12, 2017, David Ignatius of the Washington Post published a column on Russian hacking. “According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions?” [author’s italics]22
That leak of highly classified information was a serious crime under 18 U.S.C. § 798.23 An investigation of McCabe by the OIG later indicated a high probability that he had been the leaker.24 Any underlying motivation to serve the public good by disclosing a lie or misrepresentation is of no legal consequence under the statute.
The leak may have also been driven by personal animus. McCabe had clashed with Flynn after the general’s intervention in 2014 on behalf of a female counterterrorism agent who had accused top FBI brass of sexual discrimination. Flynn had written a letter supporting supervisory special agent Robyn Gritz on his official Pentagon stationery and offered to testify in her case.
“[Flynn’s] offer put him as a hostile witness in a case against McCabe, who was soaring through the bureau’s leadership ranks,” reported Circa’s John Solomon and Sara Carter. “The FBI sought to block Flynn’s support for the agent, asking a federal administrative law judge in May 2014 to keep Flynn and others from becoming a witness in her Equal Employment Opportunity Commission (EEOC) case.”25
The pending case was “serious enough to require McCabe to submit to a sworn statement to investigators” that provided “some of the strongest evidence in the case of possible retaliation.”26
Several FBI employees were “uncomfortable” due to McCabe’s apparent personal antagonism toward Flynn and believed he was driving the investigation into the national security advisor. “Three FBI employees told Circa they personally witnessed McCabe make disparaging remarks about Flynn before and during the time the retired Army general emerged as a figure in the Russia case.”27
The FBI agents’ concerns escalated when a description of the intercepted calls between Kislyak and Flynn became public. “The Flynn leaks were nothing short of political,” said one FBI official. “The leaks appeared to be targeted to take Flynn out.”28
Gritz also believed it was political. “McCabe is vicious to anyone who either stands up to him or is a threat to his ‘power’ and [he] is a screamer,” said Gritz. “McCabe wrote false and nasty comments on numerous documents about me when he had not one bit of proof of any lack of performance.”29
The issue would prompt Senator Charles Grassley to call for McCabe to recuse himself from the Flynn case. In a letter to Deputy Attorney General Rod Rosenstein, Grassley wrote, “[The] evidence and the failure to recuse calls into question whether Mr. McCabe handled the Flynn investigation fairly and objectively, or whether he had any retaliatory motive against Flynn for being an adverse witness to him in a pending proceeding.”30
The FBI had obviously been monitoring Kislyak’s calls. Perhaps Flynn’s name was “unmasked”—or his communications were being monitored through the EC. The phone conversation was perfectly legal and in keeping with Flynn’s role as incoming NSA. Though a full transcript has never been released, Flynn later said he had asked Kislyak not to “overreact,” to wait a few weeks to retaliate until the incoming Trump administration could review the situation, a reasonable approach.
The following day, the Wall Street Journal reported the call in more detail, as well as a denial by Trump spokesman Sean Spicer that Flynn had discussed the sanctions. He said that the two men had discussed four other topics, including a phone call between the presidents of the two countries. Exactly why the communications would have been illicit was not made clear.31
On January 15, Vice President Mike Pence appeared on the CBS show Face the Nation and was asked a question about contacts between members of the Trump incoming team and the Russian government.32
“Did any advisor or anybody in the Trump campaign have any contact with the Russians who were trying to meddle in the election?” asked John Dickerson.
“Of course not,” Pence said. “And I think to suggest that is to give credence to some of these bizarre rumors that have swirled around the candidacy.”
Dickerson conflated the campaign and the transition. On hearing Pence’s answer, Comey and crew knew they had an issue to exploit. At the same time, Brennan lashed out at Trump, accusing him of underestimating Putin as the president sought a reset of relations with Russia, stating that he was open to lifting the recently imposed sanctions. Their feud heated up, and Flynn was in the middle of it.33
DOJ insiders floated stories speculating that Flynn had violated the Logan Act, an obscure law enacted in 1799 that makes it a felony for a private citizen to interfere in international disputes between the US and foreign governments.
But virtually no one has ever been prosecuted under the Logan Act, principally because most lawyers, legal scholars, and judges agree that it is probably unconstitutional, and in this case, it was irrelevant. Flynn was the incoming NSA, not a private citizen. He was preparing the administration for the foreign policy challenges that lay ahead and establishing the kind of vital contact that assists a new president in formulating effective relationships and policies. In other words, Flynn was doing his job.
The day before Trump’s inauguration, the insiders—Comey, Yates, Clapper, and Brennan—met to discuss whether to brief the new president or his staff on the Flynn situation. Comey argued against it, concerned that it would complicate the agency’s investigation—meaning they would first have to get Flynn into the trap. He prevailed.34
Instead of notifying Trump of any concerns about his new national security advisor, the media was alerted through leaks. A published story would then serve as a convenient excuse for the FBI to ask for an interview of Flynn at the White House before he had even unpacked his boxes in his new office there.
“Michael Flynn is the first person inside the White House under Mr. Trump whose communications are known to have faced scrutiny as part of investigations” by the FBI, CIA, NSA, and Treasury Department, reported the Wall Street Journal on January 22.
“The counterintelligence inquiry is aimed to determine the nature of Mr. Flynn’s contact with Russian officials, and whether such contacts may have violated laws, people familiar with the matter said. [author’s italics]”35 One of the authors was Devlin Barrett, who would come under scrutiny as the recipient of leaks by McCabe. This story surfaced several targets: Paul Manafort, Roger Stone, and Carter Page. But the crosshairs, for now, were trained on Flynn.
The following day, Spicer brushed off the story, saying that Flynn hadn’t discussed US sanctions with Kislyak.36 With the media panting for more, the spadework for the scam had been accomplished.
Comey’s call to McCabe on January 24 to “send a couple guys over” laid
the predicate for a vicious, malevolent attack on a man who had honorably served his country for thirty-three years that would cost Flynn his hard-won reputation, his home, and more than $5 million in legal fees.37
The FBI director’s publicly stated reason for sending the agents to talk to Flynn centered around statements he’d made to Pence that contradicted the phone conversation between Flynn and Kislyak.38 In other words, what was being reported in the press—based on information planted by the FBI—triggered the interview.
Comey was later pressed on his unusual decision to defy protocol by members of the House Oversight and Judicial Committee in a closed-door session. “It is not the FBI’s job, unless I’m mistaken, to correct false statements that political figures say to one another,” said Representative Trey Gowdy. “So why did you send two Bureau agents to interview Michael Flynn?”39
“Because one of the FBI’s jobs is to understand the efforts of foreign adversaries to influence, coerce, corrupt the Government of the United States,” Comey responded. It was a feeble excuse. If the FBI were to open investigations on all political figures making comments at odds with one another, it would do nothing else.
So at Comey’s direction, at 12:35 p.m. on January 24, 2017, the first Tuesday after the inauguration, McCabe picked up the phone and called Flynn at his new office in the West Wing.40
Flynn’s lawyers later described the conversation this way: “General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before McCabe, by his own account, stated that he ‘felt that we needed to have two of our agents sit down’ with General Flynn to talk about his communications with Russian representatives.”41
According to McCabe, “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel, for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”42
In other words, McCabe deliberately manipulated Flynn into not having an attorney present. Juxtapose with that the treatment of Hillary Clinton, who was allowed a team of lawyers to accompany her when she was interviewed by FBI agents, including Peter Strzok, in early July 2016.
Less than two hours later, at 2:15 p.m., two agents arrived at Flynn’s office: Peter Strzok and Joe Pientka. Unsuspecting, even “jocular,” General Flynn offered to give the agents a tour of the area around his office.
“Prior to the FBI’s interview of General Flynn, Mr. McCabe and other officials ‘decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport.’ ”43
Here’s the neon sign that flashes “PERJURY TRAP.”
The agents had a transcript of the December 29 phone conversation between Flynn and Kislyak but did not inform Flynn of that fact. If they had, the FBI would have admitted that it was spying on the incoming NSA through incidental surveillance collection.
On the way over, the FBI agents decided that if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used . . . to try to refresh his recollection. If Flynn still would not confirm what he said . . . they would not confront him or talk him through it.”44
The agents reported that Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”45 Why wouldn’t he? He’d done nothing wrong.
But the notorious Strzok-Page text messages later revealed that the FBI agents had not been his allies. It was a setup from the beginning. The day before he interviewed Flynn, Strzok texted his paramour Lisa Page, “I can feel my heart beating harder, I’m so stressed about all the ways THIS has the potential to go fully off the rails.”46
Page replied, “I know. I just talked with John [unknown last name], we’re getting together as soon as I get in to finish that write up for Andy [McCabe] this morning. I reminded John about how I had told Bill [probably Priestap] and the entire group that we should wait 30 to 60 days after the inauguration to change how we’re managing this stuff. As it is, he went ahead, and everything is completely falling off the rails.”47
After the interview, the two FBI agents briefed McCabe, who in turn informed Comey. Strzok later maintained that he and his fellow agent had “both had the impression at the time that Flynn was not lying or did not think he was lying.” Flynn “did not parse his words or hesitate in any of his answers.”48 They memorialized their conversation with Flynn in an FD 302. But McCabe had a hand in the summary’s final form, according to the Strzok-Page texts. On February 14, 2017, Strzok texted, “Also, is Andy good with F 302?” Page texted back, “Launch on f 302.” It was officially entered into the record a day later.49
When informed that agents were interviewing Flynn, Yates “was not happy.” Nor were others on the FBI’s seventh floor. Possibly the Bureau’s numerous lawyers were raising red flags about the legality of the entrapment scheme, but Comey and McCabe plowed ahead anyway.50
What happened next was reprehensible. Yates received a detailed summary of the interview. The Logan Act and perjury were discussed “at great length” within the DOJ. A holdover from the Obama administration, Yates believed “it was important to get this information to the White House as quickly as possible.”51
The leaks intensified. As later reported by the Washington Post, Yates considered Flynn’s comments in the intercepted call to be “highly significant” and “potentially illegal, according to an official familiar with her thinking. [author’s italics]”52
She had the full support of Clapper and Brennan. “They feared that ‘Flynn had put himself in a compromising position’ and thought that Pence had a right to know that he had been misled, according to one of the officials, who, like others, spoke on the condition of anonymity. [author’s italics]”53 Also from the WaPo story: “The FBI, Yates, Clapper, and Brennan declined to comment on the issue.”
On January 26, Yates and DOJ official Mary McCord met with White House counsel Don McGahn. “The first thing we did was to explain to Mr. McGahn that the underlying conduct that Gen. Flynn had engaged in was problematic in and of itself,” Yates later testified before a Senate judiciary subcommittee.54
She said that Flynn had lied to Pence about his conversations with Kislyak, leading the VP to give erroneous information to reporters that “we knew not to be the truth.”55
Because the Russians knew he had lied, Flynn was in danger of being compromised, blackmailed, Yates insisted. That was absurd. The phone conversations were now public; by exposing the lie, how could the Russians extort Flynn?
McGahn asked if Flynn should be fired. Yates responded, “That really wasn’t our call.” However, “it wouldn’t really be fair of us to tell you this and then expect you to sit on your hands,” she said.56
The next day, McGahn asked Yates to return to his office. “Why does it matter to the Department of Justice that one White House official lied to another?” he asked.57
“It was a whole lot more than that,” Yates said. “First of all, it was the vice president of the United States and the vice president had then gone out and provided that information to the American people who had then been misled and the Russians knew all of this, making Mike Flynn compromised now.”58
Days later, Yates was out of a job, fired by Trump on January 30 for refusing to enforce his executive order banning travel to the United States from certain countries.59 She became a hero to the #Resistance, and at least one colleague inside the DOJ, attorney Andrew Weissmann, whose path would soon cross that of Flynn. He emailed his boss to say he was “proud” and “in awe” of her def
iance of the president.60
But Yates’s role in the Flynn debacle was appalling.
“Yates represents [former Obama attorney general] Eric Holder’s most enduring legacy—normalization of political law enforcement,” said J. Christian Adams, president of the Public Interest Legal Foundation and a former DOJ lawyer. “She saw it as her mission to sabotage the incoming administration.”61
Meanwhile, the White House said nothing about Flynn. So Comey and McCabe ramped up the pressure.
As the Wall Street Journal reported, “After Ms. Yates relayed the concerns, some intelligence officials waited for White House officials to issue a new statement—to correct the public record in some way about Mr. Flynn’s contacts with the ambassador, according to people familiar with the matter. As time went on, it seemed to Justice Department officials that the White House didn’t plan to do so, these people said. [author’s italics]”62
Flynn, through a spokesman, backed away from his denial that he had discussed sanctions with Kislyak, saying that “while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”
Trump administration officials said that “they did not see evidence that Flynn had an intent to convey an explicit promise to take action after the inauguration.” But “nine current and former officials, who were in senior positions at multiple agencies at the time of the calls, [and who] spoke on the condition of anonymity to discuss intelligence matters [author’s italics],” said Flynn’s references to the election-related sanctions were explicit.63
Add up the folks on the top floors of the FBI and DOJ, throw in Clapper and Brennan, and you’ve got nine who should face charges of leaking highly classified information.
In an interview with The Daily Caller, Flynn insisted that the conversation with Kislyak “wasn’t about sanctions. It was about the 35 guys who were thrown out. . . . It was basically, ‘Look, I know this happened. We’ll review everything.’ I never said anything such as ‘We’re going to review sanctions,’ or anything like that.”64
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