OPINION — Cherry-picked information filed last Thursday by the Justice Department in Attorney General William Barr’s effort to have charges dismissed against one-time Trump National Security Adviser Michael Flynn do not really support dropping the case.
Flynn, when interviewed by FBI agents on January 24, 2017, made a series of false statements about conversations he had back in late December 2016, with then-Russian Ambassador to the U.S. Sergey Kislyak.
In last week’s motion, the Trump Justice department claimed in order for Flynn’s lies to be a crime, the law “requires a statement to be not simply false, but ‘materially’ false with respect to a matter under investigation.”
“We feel really that a crime cannot be established here because there was not, in our view, a legitimate investigation going on,” Attorney General Barr told CBS News last Thursday. “They did not have a basis for a counterintelligence investigation against Flynn at that stage, based on a perfectly legitimate and appropriate call he made as a member of the transition,” Barr argued.
Barr stated that new information on the Flynn case had come to him recently. Last January, when Flynn had moved to withdraw his plea agreement, Barr told CBS he had assigned Jeffrey Jensen, the Trump-appointed U.S. Attorney in St. Louis, “to come in and take a fresh look at this whole case. And he found some additional material. And last week, he came in and briefed me and made a recommendation that we dismiss the case, which I fully agreed with, as did the U.S. attorney in D.C. So we've moved to dismiss the case.”
It will now be up to U.S. District Judge Emmet G. Sullivan to rule on the government’s unusual motion. “Under the rules, the case can be dismissed with leave of court,” Barr said, adding, “But he [Sullivan] does have a say.”
Critics of the government’s motion say chances are Sullivan will examine the facts behind the government motion.
During a December 2018 hearing on Flynn’s sentencing motion, Sullivan told Flynn, “You lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Adviser — the President of the United States' most senior national security aide. I can't minimize that…I mean, arguably, that undermines everything this flag over here stands for. Arguably, you sold your country out."
Meanwhile, President Trump, his government colleagues and their media supporters have used the revived Flynn case to create another shiny ball to divert attention away from his administration’s major failure to deal with the Covid-19 virus and the 80,000 American deaths it has caused.
As usual, Trump has distorted the Flynn situation by tweeting out “OBAMAGATE!” as “The biggest political crime in American history, by far!” during a Mother’s Day tweetstorm, during which he attempted again to imply that any investigation related to Russia’s proven interference with his 2016 election was a hoax.
The 88 pages of 13 exhibits that accompany the government’s Thursday motion provide new information about the history of the Flynn case and facts that dispute arguments made by that same motion to dismiss the case.
On August 16, 2016, the FBI opened a separate investigation of Flynn, called CrossfireRazor, that was different from the broader one into Russia’s involvement with the 2016 presidential election called CrossfireHurricane.
Flynn’s investigation, according to exhibits in the Justice motion, was to determine whether or not he was directed or controlled or coordinated his activities with Russian government officials which could threaten national security or violate the Foreign Agent Registration Act (FARA). Opening the inquiry was based on Flynn’s position as foreign policy advisor to the Trump campaign, his connection to Russian state entities (Russia Today), and his travel to Russia in December 2015, where he met and sat at a table with Russian President Vladimir Putin.
The FBI investigation consisted primarily of checking national security agency files on Flynn, a former Army general, who headed the Defense Intelligence Agency, but was fired by President Obama’s Pentagon in 2014 for mismanagement and extreme views on Islamic terrorism.
By January 4, 2017, the FBI had drafted a memo to close the Flynn Razor inquiry, when, ironically, negative evidence turned up.
On December 29, 2016, Obama ordered 35 Russian intelligence operatives to leave the U.S. and closed Russian facilities in response to Moscow’s interference with the 2016 U.S. election. The day after the sanctions were announced, President Putin announced publicly that Russia would not retaliate in kind, as has been the custom.
When Russia did not retaliate, the U.S. intelligence community investigated. On January 4, the FBI learned about transcripts of Flynn’s calls with Kislyak including ones made on December 29, according to Exhibit 5 attached to the government’s motion. Closing of Flynn’s case was halted.
On January 5, 2017, at a White House meeting, President Obama and senior officials, including Sally Yates, then Deputy Attorney General, were briefed on the details of the calls as an explanation of why Putin had not reacted.
In his December 29 conversations and later with Kislyak, Flynn not only discussed specific sanctions, but “actually made a specific request to Kislyak that the Russians not overreact and that they minimize their response, and Kislyak affirmed he had ‘taken it to the highest levels’ and their response was because of the request,” according to an FBI interview of Sally Yates, former Deputy Attorney General that is Exhibit 4 to the government’s motion.
Nothing more was done about the Flynn calls, which had remained secret, when on January 12, 2017, Washington Post Columnist David Ignatius published an article in which he mentioned the Flynn-Kislyak calls and speculation about what they might have involved.
It was Vice President Mike Pence’s appearance three days later, on January 15, 2017’s CBS Face the Nation, that Yates said Flynn’s calls “really got hot.”
Pence said on the program, “I can confirm, having spoken to him [Flynn] about it, that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.”
Within the Obama administration, discussion then focused on whether to tell the incoming administration, since by then, Trump had already named Flynn as his National Security Advisor.
After the inauguration, Trump Press Secretary Sean Spicer on January 23, claimed wrongly that the Flynn Kislyak phone call touched on four subjects, but sanctions was not one of them.
At that point, with the Flynn Razor investigation still open, FBI Director James Comey decided “to find out whether there was something we were missing about his [Flynn’s] relationship with the Russians,” as he testified before the House Intelligence Committee March 2, 2017, according to Exhibit 5 of the government motion.
Comey further explained, “We had this disconnect publicly between what the Vice President was saying and what we knew. And so, before we closed an investigation of Flynn, I wanted them [FBI agents] to sit before him and say what is the deal?” There was also a national security issue based on the fact that the Russians were aware of the lie, which set up a compromising situation for Flynn.
On January 24, 2017, at 12:35 pm, then-FBI Deputy Director Andrew McCabe spoke with Flynn to set up the interview “quickly and discreetly as possibly,” according to McCabe’s notes, the government motion’s Exhibit 11.
Flynn asked if it was about his conversations with the Russian ambassador and McCabe said it was. McCabe said if Flynn wanted someone else at the meeting, like the White House Counsel, that would involve the Justice department. “He [Flynn] stated this would not be necessary and agreed to meet the agents without any additional participant.
The meeting was set for 2:30 pm that afternoon.
Much is made of notes, dated January 24, 2017, made before the interview and released as Exhibit 10. On one side is written, “We have a case on Flynn & Russians; Our goal is to resolve case; Our goal is to determine if Mike Flynn is going to tell the truth @ his relationship w/Russians.”
On the other side, under a heading marked “Afterwards,” are notes including a list of hypothetical goals such as “Truth/Admission or to: to get him to lie so we can prosecute him or get him fired; we regularly show subjects evidence with the goal of getting them to admit their wrong doing; I don’t see how getting someone to admit their wrong doing is going easy on him…” and many more such speculations.
Barr, when asked by CBS about the notes, said they were not unusual and added, “Well, my understanding is, just looking at the documents, the way I interpret them, is there was a disagreement. And that one of the agents, one of the senior agents felt that ‘Let's not be game playing here. We have the transcript. Show him the transcripts and find out what you wanna find out.’"
The agents’ report of the Flynn interview, Exhibit 6 of the government motion, show that Flynn had good memory of his Russian connections, including a Kislyak conversation on December 22 in which he knew which countries at the United Nations would vote on a controversial measure involving Israel.
But Flynn denied several times discussing Obama’s sanctions against the Russians on December 29, at first claiming he was vacationing at the time in the Dominican Republic and was unaware of what had gone on until he read about it in the media. He also said upon reflection “he did not think he would have had a conversation with Kislyak about the matter, as he did not know the expulsions [of Russian personnel] were coming. Flynn stated he did not have a long drawn out discussion with Kislyak where he would have asked him to ‘don’t do something.’”
Given all the details in the exhibits, it is hard to see Barr’s position that the FBI “they kept it [the Flynn Razor investigation] “open for the express purpose of trying to catch, lay a perjury trap for General Flynn.” It was kept open by discovery of the Flynn-Kislyak conversations, and even then nothing was done under Obama. The FBI interview was triggered by Flynn’s alleged denial to Pence and the resulting misinformation passed to the public.
It was only after Flynn decided to cooperate with the Mueller investigation and plead guilty to lying to the FBI, that he and his son avoided even more serious charges associated with their failing to file under the Foreign Agent Registration Act for the Turkish government.
Barr claimed during his CBS interview that “I think one of the things you have to guard against, both as a prosecutor and I think as an investigator, is that if you get too wedded to a particular outcome and you're pursuing a particular agenda, you close your eyes to anything that sort of doesn't fit with your preconception. And I think that's probably the phenomenon we're looking at here.”
He is correct, although that formulation fits better to what Barr has done in trying to dismiss Flynn’s case.
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