The Russia Hoax
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Speaking with the Russian ambassador to the United States is neither exceptional nor incriminating. After all, Kislyak is stationed in Washington. His job is to communicate with U.S. officials and to advance his country’s agenda. Senators take meetings with foreign diplomats all the time.
Case in point: Democratic Senator Claire McCaskill. After criticizing Sessions for meeting with the Russian ambassador and claiming she had never done so in her ten years on the Armed Services Committee, it turned out that her tweets betrayed her. Twitter account records showed that she bragged on social media about two of her meetings with Kislyak, in 2013 and 2015.49
McCaskill wasn’t the only one. In fact, seven then-Democratic senators convened with the Russian ambassador in a single meeting in 2013.50 Kislyak was also a frequent visitor to the White House while Barack Obama was president with logs showing he visited at least twenty-two times.51 Photos were unearthed showing Senator Chuck Schumer together with Russian President Vladimir Putin.52
As mentioned earlier, officials in the Hillary Clinton campaign also met with Kislyak, according to a Kremlin spokesman. However, almost no one accused Clinton of “colluding” with Russia.
Importantly, there was no evidence to suggest that Attorney General Sessions was untruthful in his statements. The only dishonesty came from Pelosi who deliberately misrepresented the known facts and defamed Sessions by branding him a liar. As a nonlawyer, she could have used a primer on perjury. Under federal law, 18 U.S.C. 1621, perjury is knowingly and willfully making a false statement under oath.53 It does not take a great thinker to comprehend the plain meaning of the statute.
Sessions was acting in his capacity as a United States senator during his encounters with Kislyak, and he reiterated that he did not discuss the election or campaign. This meant his statements to the Judiciary Committee were truthful, not lies as Pelosi claimed. Armed with no evidence, she convicted Sessions without the benefit of a trial. Her accusations and slurs were not just baseless, given the facts, but contemptible.
It is easy for all to see now that Sessions broke no laws, breached no ethical rules, and “colluded” with no one. Nonetheless, at the time he was maligned and vilified by those who sought to impugn his honesty and integrity for nothing more than partisan politics. In June 2017, he was called before the Senate Intelligence Committee to defend himself and refute accusations that he had lied before Congress.54
Senator Mark Warner, Democrat of Virginia, set the ugly tone when he began by misrepresenting Sessions’s testimony at his confirmation hearing in January, selectively reading only part of it and deliberately omitting the full question and full answer. It was a shameful cheap shot by Warner, driven either by malice or ignorance. Maybe both.
Sessions would have none of it. He expressed his contempt for what he called scurrilous accusations against him. He said his confirmation testimony had been misconstrued to form the basis for the persistent falsehood that he deceived Congress and committed perjury. Partisans had perpetuated the distortion, and the media had run wild with it.
At the hearing, the attorney general recited the full context of the question and his corresponding answer. He spelled out what he had already explained many times before. That is, he never met as a campaign surrogate with any Russian official:
That was the context, and in that context my answer was a fair and correct response to the charge as I understood it. It did not occur to me to go further to other conversations or meetings.55
Naturally, he had prior meetings with foreign officials. That was part of his duties as a U.S. senator on the Armed Services Committee. As for “collusion” with the Russians? Sessions became visibly angry when he declared:
I have never met with or had a conversation with Russians regarding interference with the election. The suggestion that I participated in collusion to hurt this country, which I have served with honor for 35 years, is an appalling and detestable lie.56
In his own quiet but deliberate manner, Sessions expressed disdain for the way he had been treated. Politicians and the media, animated by their unabashed scorn and visceral enmity toward Trump, had intentionally twisted Sessions’s words to smear him and further fuel the Trump-Russia investigation.
CNN piled on the Sessions smear bandwagon when it published a story in late May 2017 accusing him of also “failing to disclose contacts he had with Russian officials” when he applied for security clearance.57 The network quietly walked back the story months later when documents revealed that the FBI had advised Sessions’s staff that he wasn’t required to disclose foreign contacts that were related to his duties as a U.S. senator.58
Facts appeared to have gotten in the way of their reporting.
Chapter 9
Flynn’s Firing, Sessions’s Recusal, and the Canning of Comey
It is never the law itself that is in the wrong; it is always some wicked interpreter of the law that has corrupted and abused it.
—JEREMY BENTHAM, FRAGMENT ON GOVERNMENT, PREFACE (1 WORKS 231)
The election of Donald J. Trump to the presidency was one of the most remarkable and improbable occurrences in American political history.
Not since the founding of our nation had someone with no previous experience in elected public office, the military, or government been elevated to the nation’s highest office. Assembling a White House staff, cabinet, and leadership for the vast executive branch would have been an immense challenge for even a seasoned politician. Here, Trump was at a disadvantage. He therefore relied on many of the individuals who had joined his campaign and helped him achieve his unexpected victory. He did this out of loyalty and, to some extent, necessity. These were the people he knew and trusted.
President Trump made some choices that, in retrospect, proved unwise or ill-advised. The selection of retired General Michael Flynn to serve as national security adviser and Senator Jeff Sessions to be attorney general presented problems for the new president both before and immediately after he was sworn into office. While these two men may not have been well-suited for their respective positions, Trump could not have anticipated that mistakes by them would embroil his administration in controversies that would haunt his first year in office, and beyond.
Flynn was fired a mere twenty-four days into his tenure for allegedly being less than honest with Vice President Mike Pence in recounting conversations he had had with Russia’s ambassador to the U.S., Sergey Kislyak, during the transition period. While Flynn’s faulty memory of his discussions with Kislyak may or may not have justified his termination as the NSA, his interactions were lawful and consistent with what other presidential transition teams had done. The FBI and Department of Justice misinterpreted the law and misused their authority to try to entrap Flynn during an investigation that was utterly without factual merit or legal justification. The special counsel then pursued Flynn relentlessly, even though he had done nothing wrong.
Jeff Sessions’s difficulties arose from an omission of fact, rather than the commission of any wrongful act. His testimony during his confirmation hearing was less than artful and complete. He either misunderstood a key question or, more likely, his answer was misinterpreted. As a consequence, Democrats on the Senate Judiciary Committee, together with a rabidly anti-Trump media, seized upon his perceived inconsistency and exploited it to pressure the new attorney general into an unrequired and imprudent recusal that would prove fateful to Trump. In disqualifying himself from matters related to Russia, Sessions made the mistake of relying on the advice of so-called ethics experts at the DOJ who misconstrued the law.
Then, there is the notorious James Comey, whom the new president inherited as FBI director. Comey had blatantly violated FBI regulations in his handling of the Clinton email case and was justifiably fired by Trump. Upon his departure, in an act of retribution, Comey unlawfully absconded with government documents and leaked them to the media to precipitate the appointment of his friend and mentor Robert Mueller as special counsel to investigate the president.
These series of events created a political upheaval that would threaten to jeopardize the Trump presidency. Had Sessions not recused himself, there would have been no special counsel, Flynn would not have been prosecuted, and the frenzied fantasy of “collusion” would have been exposed for what it was—an illusion.
But wicked interpreters of the law corrupted and abused it.
Flynn Committed No Crimes
Retired U.S. Army Lieutenant General Flynn spent more than three decades in a U.S. Army uniform, serving in command positions in both Iraq and Afghanistan.1 Appointed in 2012 by President Obama as director of National Intelligence, he retired two years later amid reports of acrimonious clashes over policy with the Obama administration.2 During the next two years, Flynn operated a private company providing intelligence and consulting services to businesses and foreign governments. Several clients had connections to Turkey and Russia. He registered only belatedly as a foreign agent by filing papers with the Department of Justice in March 2017, although his firm had previously registered with the Senate.3
Early in 2016, Flynn signed on as a foreign policy and national security adviser to the Trump campaign despite being registered as a Democrat. At the Republican convention, he delivered an impassioned speech criticizing what he described as Obama’s “misguided” approach to international threats and attacked Hillary Clinton for violating the law in her mishandling of classified documents.4
After Trump’s election victory, Obama reportedly warned the president-elect about appointing Flynn to a top national security position.5 Nevertheless, Trump selected the retired general to be his national security adviser. If the Obama White House had some genuine misgivings about Flynn, they were not serious enough to end his security clearance, which was renewed in April 2016.6 It appears that the outgoing president simply chaffed at anyone who dared to disagree with him publicly, as Flynn had done. His “warning” to Trump was probably driven by malice, not a concern over competence.
During the transition and with only three weeks left before the inauguration, the Obama administration announced sanctions against Russia in retaliation for Moscow’s interference in the 2016 election. They included the expulsion of thirty-five Russian officials, as well as other measures. Obama signed the order on December 28, and it was made public within twenty-four hours. Instead of consulting with the incoming president, as other outgoing presidents had done, Obama acted unilaterally in what some perceived as a deliberate effort to disadvantage Trump.7
The New York Times described the sanctions as “the strongest American response yet,” but also described Obama’s Machiavellian maneuver this way:
They also appeared intended to box in President-elect Trump, who will now have to decide whether to lift the sanctions on Russian intelligence agencies when he takes office next month.8
If Obama was doing whatever he could to make it difficult for his successor, he succeeded in provoking a reaction from the Trump team. The same day the sanctions were revealed, Flynn, who had already been named Trump’s NSA, consulted with senior members of the Presidential Transition Team about what, if anything, should be communicated to Russia’s ambassador about the sanctions.
Flynn was directed to ask Moscow “not to escalate the situation and only respond . . . in a reciprocal manner.”9 It was a reasonable and measured approach which did nothing to undermine Obama’s actions, but sought to limit what might have been Russia’s punishing response. Indeed, it worked. On December 30, President Vladimir Putin announced his country would not retaliate. Clearly, Flynn and president-elect Trump had managed to defuse what could have evolved into a more volatile situation.
It is uncertain whether Flynn knew it or not, but American intelligence agencies, still under the direction of the Obama administration, were listening in on his conversation with Kislyak and recording it. Armed with a transcript of it and without any legal justification whatsoever, the FBI decided to interview Flynn on January 24, 2017, in Washington D.C., just four days after Trump was sworn in. The bureau and, later, the special counsel, then spent the next eleven months pursuing Flynn as a criminal suspect. It is unclear what Flynn said to Kislyak because their secretly recorded interaction has never been made public. Nor do we know what Flynn told the FBI, because that interview has not been made available, either. As of this writing, the FBI and DOJ have refused to divulge a transcript of the conversation despite a formal request by the Senate Judiciary Committee more than a year ago.10
However, in court documents filed against Flynn by special counsel Robert Mueller in December 2017, prosecutors claimed he “falsely stated that he did not ask Russia’s Ambassador to the United States to refrain from escalating the situation in response to sanctions imposed against Russia” . . . and he “did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of Flynn’s request.”11
After battling the FBI and Robert Mueller’s special counsel team for the better part of a year, Flynn was charged with making a materially false statement to the FBI under a federal criminal statute, 18 U.S.C. 1001, and agreed to plead guilty to a single count.12 Although Flynn had previously insisted he did nothing wrong and broke no laws, he finally surrendered under the intense emotional strain and monetary pressures. His decision was understandable. Already, Flynn had been crushed financially trying to defend himself. His assets had dwindled, and he was forced to put his home up for sale to pay his mounting legal fees.13 Had he maintained the fight to clear his name, his defense bills would have run well into the hundreds of thousands of dollars.14 Having spent most of his professional career on a military salary, the retired general could ill afford it. He would have been left penniless and in debt.
There were also reports that Flynn felt Mueller, who was scrutinizing every aspect of the general’s life, might take legal action against his son who had worked in his consulting firm and was also being targeted by the special counsel.15 If true, Flynn’s decision to throw in the towel seemed rational. Any loving father would sacrifice himself to protect a child. But these events serve as an example of how a ruthless prosecutor, if he so chooses, can exercise any means to coerce someone into copping a plea. Threatening to bring charges against a family member is an unconscionable act, but is used all too often by the heavy hand of prosecuting authorities. An individual of modest means is no match for the unbridled power and vast resources of government prosecutors. They can harass, intimidate, persecute, and break almost anyone, even an innocent person, and drive him to financial ruin. Brutal tactics by overzealous prosecutors are, sadly, endemic in the halls of justice.
Flynn was never charged with “colluding” with Russia, notwithstanding the near constant connotations advanced by a breathless media that seemed convinced he was a Kremlin sympathizer or mole. It is a shame that Flynn never had his day in court. He would likely have won the case against him, for several reasons.
First, under the relevant law, prosecutors must prove beyond a reasonable doubt that Flynn “knowingly and willfully” falsified a material fact.16 If his recollection of the conversation with Kislyak is inconsistent with the transcript, it is not a crime. If Flynn interpreted his discussion differently than the FBI, it is also not a crime.
Let’s suppose the word “sanctions” was never mentioned while talking with Kislyak, but there was a general discussion about expelled diplomats, which was part of the sanctions package. Content and context both matter. Also, the length of the meeting is critical. If the subject of sanctions was merely a passing reference in a larger conversation about moving forward to establish better American-Russian relations in a new administration, then Fly
nn’s reported insistence that he did not recall all of the discussion seems more credible, making it a legally viable defense.
A successful prosecution requires proof of what is called specific intent. That is, that Flynn made a false statement with the knowledge of its falsity, rather than because of confusion, mistake, or faulty memory. The defendant must have acted “willfully and knowingly.” Hence, if Flynn believed his statement to be true when he made it to the FBI, even though it was arguably false, the case against him cannot be proven.
Second, the observations and impressions of the FBI agents who interviewed Flynn are not only relevant, but normally dispositive in deciding whether to even bring such a charge. Much depended on Flynn’s state of mind during the interview. Thus, the agents who posed questions and listened to the answers became important percipient witnesses to the issue of his “intent.” Did they walk away convinced that Flynn believed he was telling the truth and that any inaccuracies were unintentional? If so, no prosecution should have been brought.
So, what opinions did the agents take away from their interview? It was not until after Flynn was fired that information began to trickle out that those agents had, indeed, concluded that the NSA director told them the unvarnished truth of what he recalled from his conversations. Evan Perez of CNN reported that no charges were expected and added the following information gathered from anonymous law enforcement officials:
The FBI interviewers believed Flynn was cooperative and provided truthful answers. Although Flynn didn’t remember all of what he talked about, they don’t believe he was intentionally misleading them, the officials say.17
Many people assumed Flynn would not be charged because the interviewing agents found the three-star general to be truthful. But months later, on December 1, 2017, Flynn surprisingly entered a guilty plea. That day, the Editorial Board of the Wall Street Journal dropped a stunning revelation: