The single most important fact about the destruction of Michael Flynn – a decorated US soldier who has served his country in battle and who is a Lieutenant General of the US Army – is the shocking way it was brought about.
To understand what happened it is necessary to go back to the events of last December and January and to note their sequence.
On 28th December 2016 Flynn was telephoned by Russian ambassador Kislyak over an open line. Kislyak asked Flynn what the new Trump administration’s policy would be with respect to the sanctions US President Barack Obama had announced that day.
Seemingly unknown to Kislyak and Flynn the FBI was recording the call.
On 29th December 2016 Flynn telephoned Mar-a-Lago for instructions. He spoke to a senior official of the Trump transition team who was almost certainly Jared Kushner. This official told Flynn that the incoming Trump administration did not want to see the situation between the US and Russia escalate and asked Flynn to say this to Kislyak.
On 29th December 2016 Flynn telephoned Kislyak over an open line, told Kislyak the incoming Trump administration did not want to see the situation between the US and Russia escalate, and urged Russia to respond to Obama’s sanctions with restraint.
Apparently Flynn asked Kislyak that whatever retaliatory action Russia took in response to the sanctions should be on the same scale as the sanctions so as not to escalate the situation further.
It is now universally accepted that Flynn gave Kislyak no promise that an incoming Trump administration would lift the sanctions during this call.
Once more, seemingly unknown to Kislyak and Flynn, the FBI recorded the call.
On 31st December 2016 Kislyak telephoned Flynn again and told Flynn that in light of the incoming Trump administration’s request for restraint Russia had decided to take no action for the time being in response to Obama’s sanctions.
It is not known whether on this occasion the FBI recorded the call but it is likely that it did.
In early January 2017 the FBI prepared a secret report about Flynn’s conversations with Kislyak based on its recordings of these conversations. It seems that this report incorporated transcripts of these conversations.
We know this report exists because its existence was disclosed by the Washington Post in an article dated 13th February 2017.
A copy of this report was forwarded by the FBI to the Justice Department and was shared by the FBI with the rest of the US intelligence community before the inauguration.
On 8th January 2017 Flynn attended with Donald Trump a meeting with the chiefs of the US intelligence community including Director of National Intelligence James Clapper and FBI Director James Comey.
During the meeting Trump and Flynn were provided with the classified version of the January 2017 ODNI report which alleged Russian meddling in the US Presidential election of the previous year.
The ODNI report specifically alleged that Russia had hacked the DNC’s and John Podesta’s computers, stolen emails from the computers, and arranged for publication of the emails by Wikileaks.
The ODNI report also included as an appendix the series of reports compiled by Christopher Steele which has come to be known as the Trump Dossier.
At the meeting with the intelligence chiefs Trump – presumably on Flynn’s advice – was dismissive of the conclusions of the ODNI report, and angrily denied the allegations about his personal conduct made in the Trump Dossier.
On 11th January 2017 Buzzfeed published the Trump Dossier.
On 12th January 2017 an article by David Ignatius based on information provided by a “senior US government official” appeared in the Washington Post which disclosed that Flynn had spoken on the telephone to Kislyak on 29th December 2016. This is what Ignatius’s article says about this call
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? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.
If the Trump team’s contacts helped discourage the Russians from a counter-retaliation, maybe that’s a good thing. But we ought to know the facts.
These words show that the “senior US government official” who was David Ignatius’s source was fully informed of what Flynn had said to Kislyak on 29th December 2016.
It is universally acknowledged that the “senior government official” committed a criminal offence under the FISA Act by disclosing to David Ignatius information about Flynn which was obtained from classified intercepts.
On 15th January 2017 Vice-President Pence after obtaining from Flynn an account of his conversations with Kislyak went on television’s Face the Nation and said the following
MIKE PENCE: I talked to General Flynn about that conversation…He had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.
JOHN DICKERSON: So did they ever have a conversation about sanctions ever on those days or any other day?
MIKE PENCE: They did not have a discussion contemporaneous with US actions…But what I can confirm, having spoken to him about it, is 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.
There is no doubt Flynn lied to Pence. I say this because some of Flynn’s defenders persist in saying that Flynn may have simply forgotten the part of his conversations with Kislyak which was about the sanctions.
This is impossible. It is now established that the calls between Kislyak and Flynn on 28th, 29th and 31st December 2016 were principally about the sanctions, and that Flynn sought instructions from Mar-a-Lago because of these calls. It is inconceivable that when Flynn spoke to Pence two weeks later he had forgotten all this.
On 24th January 2017 the FBI interviewed Flynn about his conversations with Kislyak.
It seems the FBI was asked to interview Flynn either by Acting Attorney General Sally Yates or by FBI Director James Comey. The interview was held under the aegis of the ongoing Russiagate inquiry.
It seems that Flynn was not told during the interview that the FBI had recorded his conversations with Kislyak and knew what he had said during them. At any rate if Flynn was told that the FBI had listened in to his conversations with Kislyak then he was not shown the transcripts of these conversations that the FBI had made or the FBI’s secret report about his conversations with Kislyak which the FBI had made in early January (see above).
During the interview Flynn repeated the same lie to the FBI that he had previously made to Pence and which he had since repeated to many others: that the sanctions announced by Obama in December had not been discussed during his conversations with Kislyak.
On 26th January 2017 Acting Attorney General Sally Yates complained to White House Counsel Donald McGahn about Flynn.
Yates told McGahn that by lying about his conversations with Kislyak to Pence Flynn had compromised himself, exposing himself to blackmail by the Russians, and that Flynn’s conversations with Kislyak looked like they might be unlawful.
A series of conversations between Yates and McGahn followed between 26th January 2017 and 30th January 2017 (the day Trump sacked Yates from her job) over the course of which Yates disclosed to McGahn that the FBI had interviewed Flynn about his conversations with Kislyak.
On 30th January 2017 – the day Trump sacked Yates because of her refusal to defend his travel ban Executive Order – Yates called McGahn and agreed to McGahn’s request that the Justice Department’s files on Flynn be made available to the White House staff.
It is now conclusively established that there was nothing unlawful about Flynn’s conversations with Kislyak (see below) whilst Yates’s claim that Flynn had exposed himself to blackmail by the Russians by lying to Pence and others about his conversations with Kislyak is too ridiculous to be taken seriously.
McGahn’s reported initial reaction to Yates’s complaint – “Why does it matter to the Department of Justice whether one White House official lies to another White House official?” – was the correct one.
On 8th February 2017 Flynn again denied to the Washington Post that he had discussed the sanctions with Kislyak. He then contradicted himself the following day when he admitted to the Washington Post through a spokesman that “he couldn’t be certain that the topic [of the sanctions] never came up.”
On 13th February 2017 the Washington Post disclosed in a lengthy article details of Yates’s warnings to McGahn about Flynn. The Washington Post’s article is packed with information about the secret discussions which took place within the US intelligence community about Flynn
The current and former officials said that although they believed that Pence was misled about the contents of Flynn’s communications with the Russian ambassador, they couldn’t rule out that Flynn was acting with the knowledge of others in the transition
(NB: these words strongly suggest that by 14th February 2017 US intelligence was aware that Flynn had also spoken to another senior Trump transition team official – almost certainly Jared Kushner – on 29th December 2016 – AM)
Two officials said a main topic of the relevant call was the sanctions. Officials also said there was no evidence that Russia had attempted to exploit the discrepancy between public statements by Trump officials and what Flynn had discussed…
After the sanctions were rolled out, the Obama administration braced itself for the Russian retaliation. To the surprise of many U.S. officials, Russian President Vladimir Putin announced on Dec. 30 that there would be no response. Trump praised the decision on Twitter.
Intelligence analysts began to search for clues that could help explain Putin’s move. The search turned up Kislyak’s communications, which the FBI routinely monitors, and the phone call in question with Flynn,
From that call and subsequent intercepts, FBI agents wrote a secret report summarizing Flynn’s discussions with Kislyak.
Yates, then the deputy attorney general, considered Flynn’s comments in the intercepted call to be “highly significant” and “potentially illegal,” according to an official familiar with her thinking.
Yates and other intelligence officials suspected that Flynn could be in violation of an obscure U.S. statute known as the Logan Act, which bars U.S. citizens from interfering in diplomatic disputes with another country.
At the same time, Yates and other law enforcement officials knew there was little chance of bringing against Flynn a case related to the Logan Act, a statute that has never been used in a prosecution. In addition to the legal and political hurdles, Yates and other officials were aware of an FBI investigation looking at possible contacts between Trump associates and Russia, which now included the Flynn-Kislyak communications.
Word of the calls leaked out on Jan. 12 in an op-ed by Post columnist David Ignatius. “What did Flynn say, and did it undercut U.S. sanctions?” Ignatius wrote, citing the Logan Act.
The next day, a Trump transition official told The Post, “I can tell you that during his call, sanctions were not discussed whatsoever.”
White House press secretary Sean Spicer, in a conference call with reporters on Jan. 13, said that the conversation between Flynn and Kislyak had “centered on the logistics” of a post-inauguration call between Trump and Putin. “That was it, plain and simple,” Spicer added.
On Jan. 15, Pence was asked about the phone call during an appearance on CBS’s “Face the Nation.” Citing a conversation he had with Flynn, Pence said the incoming national security adviser and Kislyak “did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.”
Before the Pence statement on Jan. 15, top Justice Department and intelligence officials had discussed whether the incoming Trump White House should be notified about the contents of the Flynn-Kislyak communications.
Pence’s statement on CBS made the issue more urgent, current and former officials said, because U.S. intelligence agencies had reason to believe that Russia was aware that Flynn and Kislyak had discussed sanctions in their December call, contrary to public statements.
The internal debate over how to handle the intelligence on Flynn and Kislyak came to a head on Jan. 19, Obama’s last full day in office.
Yates, Clapper and Brennan argued for briefing the incoming administration so the new president could decide how to deal with the matter. The officials discussed options, including telling Pence, the incoming White House counsel, the incoming chief of staff or Trump himself.
FBI Director James B. Comey initially opposed notification, citing concerns that it could complicate the agency’s investigation.
Clapper and Brennan left their positions when Trump was sworn in, but Yates stayed on as acting attorney general until Jan. 30, when Trump fired her for refusing to defend his executive order temporarily barring refugees and people from seven majority-Muslim countries — an action that had been challenged in court.
A turning point came after Jan. 23, when Spicer, in his first official media briefing, again was asked about Flynn’s communications with Kislyak. Spicer said that he had talked to Flynn about the issue “again last night.” There was just “one call,” Spicer said. And it covered four subjects: a plane crash that claimed the lives of a Russian military choir; Christmas greetings; Russian-led talks over the Syrian civil war; and the logistics of setting up a call between Putin and Trump. Spicer said that was the extent of the conversation.
Yates again raised the issue with Comey, who now backed away from his opposition to informing the White House. Yates and the senior career national security official spoke to McGahn, the White House counsel, who didn’t respond Monday to a request for comment.
On the same day that this article appeared – 13th February 2017 – Flynn was forced to resign. White House press secretary Sean Spicer on the next day – 14th February 2017 – explained the reasons for Flynn’s resignation in this way
We got to a point not based on a legal issue, but based on a trust issue, where a level of trust between the President and General Flynn had eroded to the point where he felt he had to make a change … The issue here was that the President got to the point where General Flynn’s relationship – misleading the Vice President and others, or the possibility that he had forgotten critical details of this important conversation had created a critical mass and an unsustainable situation. That’s why the President decided to ask for his resignation, and he got it.
On 14th February 2017 Trump spoke to FBI Director James Comey about Flynn in the Oval Office. According to Comey Trump said to Comey the following
I hope you can see your way clear to letting this go, to letting Flynn go. He’s a good guy.
Trump denies having said these words.
Setting out the timeline in this way solves all the mysteries about the Flynn affair including why he lied to Pence, the FBI and others about his conversations with Kislyak.
It also incidentally shows why the case against Flynn has ended with a plea bargain.
Flynn committed no crime by talking to Kislyak
Firstly, it needs to be said clearly that Flynn’s conversations with Kislyak were in no sense improper or unlawful as Yates and other have suggested, and that no criminal offence was committed by them or during them.
The Special Counsel’s statement – which sets out the entirety of the case against Flynn, including those parts of the case against him to which he has not pleaded guilty – shows that he has never been accused of committing an offence under the Logan Act, and has never been investigated for any criminal offence arising from his calls with Kislyak.
The Special Counsel and his team clearly do not think that there is a case against Flynn under the Logan Act and the whole issue of the Logan Act conjured up by Sally Yates is now exposed as a red herring.
Flynn’s 24th January 2017 interview with the FBI
Secondly, the FBI’s conduct of its interview with Flynn on 24th January 2017 is very difficult to understand.
The article in the Washington Post of 13th February 2017 shows that there were serious doubts even on the part of Sally Yates that Flynn had committed a crime upon which he could be convicted
Yates and other law enforcement officials knew there was little chance of bringing against Flynn a case related to the Logan Act, a statute that has never been used in a prosecution.
(bold italics added)
Why if there were doubts that a crime upon which Flynn could be convicted had been committed did the FBI interview Flynn at all, especially when it already had in its possession all the information it needed to decide the question?
Why did the FBI ask Flynn what he had said to Kislyak when it already knew what he had said to Kislyak?
If the concern was that Flynn was compromising himself by lying about his conversations with Kislyak, why not simply ask him why he was lying?
A case of entrapment?
It is difficult to avoid the impression that the interview on 24th January 2017 was a set-up.
By this time Flynn had been lying for weeks. The FBI must have known that if it interviewed Flynn about his conversations with Kislyak without disclosing to him the full extent of what it already knew the strong likelihood was that Flynn would repeat to them the same lie he had previously said to Pence and which he had also been saying to many other people.
That of course is precisely what happened, and it is difficult to avoid the impression that that was the intention all along and that that was why the interview was set up in the way it was.
Put that way Flynn’s interview with the FBI looks like a straightforward case of entrapment.
Why however might Sally Yates’s Justice Department and the FBI want to entrap Flynn in this way?
Possibly some people in the US intelligence community, in the Justice Department and in the FBI really did fall for Yates’s farfetched and paranoid claims that Flynn had exposed himself to blackmail by the Russians.
However I have to say that I find these claims so farfetched that I cannot truly believe that anyone genuinely believed them. To me they look like a cover story to conceal what was really going on.
Besides, as I have said, if those really were the concerns that drove the FBI’s actions then the FBI’s conduct of the interview on the 24th January 2017 was most peculiar (see above).
Revenge for Flynn’s skepticism about the January ODNI report?
The sequence of events which I have set out above provides what I suspect is the explanation.
On 8th January 2017 Flynn – whose relations with the US intelligence community were already very bad – appears to have angered them further by calling them out on the fact-free nature of the ODNI report.
I have already said that the 8th January 2017 meeting between Trump and the heads of the US intelligence community had the whiff of blackmail about it.
Given that this was so, it is hardly surprising that when it became clear that neither Trump nor Flynn would back down a campaign to discredit them was launched. As was to be expected the first shots in this campaign were fired within days.
Reports published to embarrass Trump and Flynn
The Trump Dossier was published on 11th January 2017 in order to embarrass Trump.
On the following day – 12th January 2017 – a report drawing on classified information about Flynn’s conversation with Kislyak on 29th December 2016 was published in the Washington Post by David Ignatius.
I do not believe that the publication of these two reports on successive days was a coincidence.
On the contrary both these publications look to me like retaliation for Trump’s and Flynn’s refusal to buckle in the meeting with the intelligence chiefs on 8th January 2017 by accepting the ODNI report in its entirety.
Flynn bungles his response
Trump – a hardbitten veteran of the US building industry who has probably had experience of being blackmailed before – obviously knows how to deal with this sort of thing, and he handled the publication of the Trump Dossier with aplomb, going immediately on the offensive and forcing an apology out of James Clapper.
Flynn – who almost certainly has no experience of being blackmailed and who as a soldier has no idea how to handle such things – blundered, and lied about his conversations with Kislyak to Pence and others when he actually had no need to.
Probably Flynn thought that since he had done nothing wrong a simple denial would shut the whole matter up whilst an admission would only lead to more questions. It was a foolish mistake, which set Flynn up for the trap which followed.
Dissension within the US intelligence community about what to do
The Washington Post article of 13th February 2017 shows that there was dissension within the US intelligence community and the Justice Department about what to do.
Comey – as had happened before – initially dragged his feet. However – as had also happened before – under pressure from the others he eventually agreed to play along.
The result was that Flynn was lured into an interview with the FBI, not told that the FBI already knew everything that he had said to Kislyak, and was tricked into saying the same lie he had previously said to Pence. Probably Flynn, who did not have a lawyer with him, did not know that lying to the FBI is a criminal offence.
In passing I should say that I do not take seriously the claim in the 13th February 2017 Washington Post article that the US intelligence community only stumbled on the recordings of Flynn’s conversations with Kislyak by accident when they hunted through the intelligence material “in order to explain the mystery” of why the Russians had not reacted to Obama’s December sanctions.
There was never any “mystery” about why the Russians had not reacted to Obama’s December sanctions. The Russians made it perfectly clear that they did not react to the sanctions because they had hopes for better relations with the US when the new Trump administration took over.
I would add that I also do not believe that the FBI records the Russian ambassador’s conversations and then simply files the recordings away.
Again this looks to me like a cover story to hide what was really going on.
Summary of the Flynn affair
This has the look of an exceptionally sordid affair.
A soldier with a record of honourable service but who is inexperienced in the world of Washington intrigues was goaded into and trapped into lying about a series of telephone calls he carried out as part of his service to the President elect of the United States. This despite the fact that nothing he did or said during those calls was wrong.
As a result he has been driven out of public life, his reputation has been publicly trashed, and he has been forced under threat of bankruptcy, and of imprisonment of himself and his son, to plead guilty to a minor process crime.
Is this the way the United States treats its soldiers? It seems it is.
Reasons for the plea bargain
Ever since Flynn’s guilty plea there has been huge speculation that Flynn has offered Mueller incriminating evidence against other people in the Trump administration in return for his indictment on a minor charge.
However the ABC story of the last few days all but confirms that such evidence as Flynn has given Mueller has no bearing on the allegations of collusion between the Trump campaign and Russia which are at the centre of the Russiagate case.
The facts actually show why Mueller might also be anxious to end the Flynn affair with a plea bargain, irrespective of what information Flynn has to offer him
What would an American jury make of the facts as I have set them out once their full implications had been explained to them by Flynn’s attorney over the course of a trial?
Would James Clapper, Sally Yates and James Comey – all neck-deep in this affair – really want to be cross examined about their precise roles by a trained advocate before an American jury? I doubt it.
I can very easily see how a trial of Flynn might have ended in a debacle, with the conduct of the Justice Department and the FBI coming in for serious criticism.
Given that this was so, it is no surprise that Mueller agreed to a plea bargain to bring the case to an end.
A conspiracy to lie?
It remains possible that more may come out of the Flynn affair.
The most difficult part of this affair for the White House is that it is now clear that several people in the Trump transition team including almost certainly Jared Kushner were aware of what really happened during the conversations between Flynn and Kislyak.
That means that they would also have known that what Flynn said to Pence was a lie and that Pence’s statement about Flynn’s conversations with Kislyak was untrue.
Notwithstanding this knowledge they took no action to correct this untruth but allowed it to stand for a whole month.
That is already very bad, but unfortunately there has to be a possibility that behind it there is something worse.
This is that Flynn discussed in advance with Kushner and others what he would say to Pence, and that they agreed with him that he should lie to Pence, setting in train the sequence of lies which ended with Flynn lying to the FBI.
That would be potentially a very serious matter, and if Trump himself was involved then conceivably it might even be an impeachable one.
Already there are some people who are floating this very possibility, seizing on some loose wording in one of Donald Trump’s tweets to insinuate that very thing (for the record I don’t see that the wording of this tweet implies that at all; on the contrary it seems to me to do the opposite).
There is however no evidence at the moment of such a conspiracy, and there is nothing to suggest it either in the indictment or in the Special Counsel’s statement, as I would expect there would be if anything like that had actually happened.
For what it’s worth Trump’s public statements and those of his lawyers strongly suggest that Trump was not involved in any way in Flynn’s lying, and that Flynn did not agree with other people in the Trump administration that he should lie whether to Pence or to anyone else.
There is no reason for the moment to go behind Trump’s statements and those of his lawyers on this question.
However this part of Mueller’s investigation now bears careful watching, even if this is a possibility which has no actual bearing on the Russiagate collusion allegations which are supposed to be the investigation’s focus.
A case of Kompromat?
Putting aside this last unfortunately by no means farfetched possibility, the overriding truth of this affair it that it has all the hallmarks of an ugly case of entrapment carried out as an act of revenge.
Americans like to contrast what they claim is the integrity of their system with the supposed corruption of Russia’s. Yet here we have a case where it looks as if the US’s security services engineered the downfall of one of the US’s most senior officials by manipulating the flow of news so as to obtain what the Russians call kompromat against him.
A country where that sort of thing happens can no longer call itself the Shining City on the Hill.