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Don McGahn’s Bullshit Report Covering Up the Flynn Firing

Murray Waas, who writes about one and only one subject on the Russian investigation, has for the second time written a story claiming that a report Don McGahn wrote on February 15, 2017 — and not Trump’s serial offers to pardon people who are serving as his firewall —  is “the strongest evidence to date implicating the president of the United States in an obstruction of justice” and “the most compelling evidence we yet know of that Donald Trump may have obstructed justice.” Murray then goes on to parrot Rudy Giuliani’s preferred narrative about what would happen next.

Several people who have reviewed a portion of this evidence say that, based on what they know, they believe it is now all but inevitable that the special counsel will complete a confidential report presenting evidence that President Trump violated the law. Deputy Attorney General Rod Rosenstein, who oversees the special counsel’s work, would then decide on turning over that report to Congress for the House of Representatives to consider whether to instigate impeachment proceedings.

Because even people covering the story closely mistake the Flynn firing for an obstruction crime instead evidence of the conspiracy, I’d like to lay out why this story is silly. This will lay out things implicit in this post, which shows that in fact the White House narrative about Flynn is all an effort to treat his firing as obstruction and not “collusion.”

Neither story about Don McGahn’s exoneration of Trump should be credited

Murray claims that because Trump knew that Mike Flynn was under investigation when he asked Jim Comey to let the investigation into Flynn go, it will undercut an explanation offered in January that Trump thought Flynn had been cleared by the FBI.

In arguing in their January 29 letter that Trump did not obstruct justice, the president’s attorneys Dowd and Sekulow quoted selectively from this same memo, relying only on a few small portions of it. They also asserted that even if Trump knew there had been an FBI investigation of Flynn, Trump believed that Flynn had been cleared. Full review of the memo flatly contradicts this story.

The memo’s own statement that Trump was indeed told that Flynn was under FBI investigation was, in turn, based in part on contemporaneous notes written by Reince Priebus after discussing the matter with the president, as well as McGahn’s recollections to his staff about what he personally had told Trump, according to other records I was able to review. Moreover, people familiar with the matter have told me that both Priebus and McGahn have confirmed in separate interviews with the special counsel that they had told Trump that Flynn was under investigation by the FBI before he met with Comey.

Murray repeats a suspect McGahn timeline describing himself, along with Reince Priebus and White House lawyer John Eisenberg, “confronting” Flynn about intercepts showing that he had raised sanctions with Kislyak, contrary to what (they were claiming) he had told them.

On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.

Priebus then “specifically asked Flynn whether he was interviewed by the FBI,” the timeline says. In response, “Flynn stated that FBI agents met with him to inform him that their investigation was over.” That claim, of course, was a lie. The FBI never told Flynn their investigation of him was over. Shortly thereafter, Vice President Pence, Priebus, and McGahn recommended that Flynn be fired.

According to the story Murray got snookered into repeating, because those three never informed Trump about this confrontation, his understanding of the investigation would remain what Priebus and McGahn had already briefed him — that Flynn was under investigation — and so by asking Comey to back off, he was obstructing justice.

In arguing that the president did nothing wrong, Trump defense attorneys John Dowd and Jay Sekulow, in both informal conversations and later in formal correspondence with the special counsel, relied on the false statements of Flynn to Priebus, McGahn, and Eisenberg that the FBI had closed out their investigation of him. In the attorneys’ reasoning, if Trump had no reason to think that Flynn was under criminal investigation when he allegedly pressured Comey to go easy on Flynn, the president did not obstruct justice. More broadly, Sekulow and Dowd argued in correspondence with the special counsel that the “White House’s understanding” was that “there was no FBI investigation that could conceivably have been impeded” at the time of Trump’s White House meeting with Comey.

But Sekulow and Dowd’s account of these conversations is partial and misleading. In fact, there is no information or evidence that Flynn’s false assertions were ever relayed to the president.

Murray doesn’t ask an obvious question: why, if Priebus and McGahn had already briefed Trump that Flynn was under investigation, they would have to confront Flynn about it. Nor does he mention a lot of other relevant details.

Two narratives

Before I get into the most relevant details, consider what we’re looking at: what Murray claims is his scoop, which provides more details on the original McGahn report, written the day after Trump tried to get Comey to end an investigation into why Mike Flynn lied about his conversation about sanctions on December 29, 2016. As always seemed the case and still appears to be true based on Murray’s claims about the report, the McGahn report misrepresented what Sally Yates said and a bunch of other things, but  in so doing laid out a narrative whereby the firing of Mike Flynn would serve as punishment for something Flynn did wrong.

Murray contrasts that with the letter Trump’s lawyers sent at the end of January but leaked in June in part to feed a narrative — one that had already been debunked — that Mueller was primarily investigating Trump for obstruction. The letter was Jay Sekulow and John Dowd’s attempt, in the wake of Mike Flynn’s cooperation agreement, to use the McGahn narrative to spin the firing of Flynn. In the January 29, 2018 telling, Flynn is not at fault, he’s just confused. And so, in the January letter, is the president. It portrays a story where no one really knew what Flynn said to Kislyak and everything that followed was just a big game of confused telephone for which the participants can’t be held legally liable. If Flynn were confused, of course, then his purported lies to Mike Pence would need to be excused, which is probably why Sekulow and Dowd didn’t address that part of the story.

When this whole process started — before Trump fired Jim Comey and in the process extended the investigation and got Robert Mueller looking into the stories being told — McGahn and Priebus and everyone else probably presumed that firing Flynn would shut everything down. That was the intent, anyway. Fire Flynn, end of investigation about why he lied to the FBI about discussing sanctions with Sergei Kislyak. And if you end the investigation, there would be no further scrutiny into what everyone else knew at the time, nor would anyone ask Comey and Yates their side of the story.

Of course, Trump fucked that all up, and fired Comey, which led to Mueller’s appointment, which led to his convening of a grand jury, which led to all that falling apart.

Bill Burck’s other clients already knew that Flynn had discussed sanctions

Which brings us to the most important of the missing details.

As noted, Trump couldn’t leave well enough alone and so fired Comey which led to Mueller which led to an actual investigation which led, in August, to Mueller obtaining the transition communications of 13 key members of the transition team, unmediated by Trump lawyers, who at the time were just responding to wholly inadequate document requests from Congress and sharing with Mueller.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

Among others, Mueller would have obtained emails that would have revealed that contrary to the story the White House had told in early January 2017 (which Murray repeats in his story), numerous Transition officials were aware of the emails regarding sanctions. Indeed, Reince Priebus, along with Flynn, Steve Bannon, Sean Spicer, and two other people (Kushner’s inclusion is implied elsewhere in the story), got forwarded an email KT McFarland sent Tom Bossert the day that Mike Flynn made his calls with Kislyak, talking about Flynn’s upcoming call with Kislyak and the need to avoid public comment defending Russia. McFarland also relayed what Obama’s Homeland Security Czar, Lisa Monaco, expected from the call, and the expectation Kislyak would respond with threats.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

McFarland wrote, Mr. Flynn would be speaking with the Russian ambassador, Mr. Kislyak, hours after Mr. Obama’s sanctions were announced.

“Key will be Russia’s response over the next few days,” Ms. McFarland wrote in an email to another transition official, Thomas P. Bossert, now the president’s homeland security adviser.

[snip]

Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

[snip]

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Mr. Bossert replied by urging all the top advisers to “defend election legitimacy now.”

[snip]

Obama administration officials were expecting a “bellicose” response to the expulsions and sanctions, according to the email exchange between Ms. McFarland and Mr. Bossert. Lisa Monaco, Mr. Obama’s homeland security adviser, had told Mr. Bossert that “the Russians have already responded with strong threats, promising to retaliate,” according to the emails.

Flynn took orders on and relayed his results to McFarland, who was in Mar-a-Lago with Trump. And the transition team, when it complained that Mueller obtained these emails, suggested that they would have — perhaps did, in their compliance with congressional requests — treat this one as privileged. The day after Flynn’s calls, Trump hailed the outcome his National Security Advisor appointee had accomplished on the calls the day before.

In other words, a great deal of evidence suggests that Trump not only knew what went on in those calls, but directed Flynn through McFarland to placate the Russians.

Within days after the call, Flynn briefed other members of the transition team on the call. It is highly unlikely that he lied to people who had been informed in advance of his call that he would be discussing sanctions.

FBI may have believed, in January 2017 and even February 2017, when McGahn wrote his memo, that Flynn lied on his own, to hide the contents of his calls from others in the Administration. But by November 2017, they knew that the most important people in the transition — including Bill Burck’s other clients, Steve Bannon and Reince Priebus — knew well what had transpired in the calls with Kislyak.

None of this, of course, shows up in the tale White House sources are telling Murray. As a result, he tells a story that presents the McGahn narrative as more closely matching the “truth” than the later Sekulow and Dowd letter.

The problems with the McGahn narrative

But neither are true, and so while it’s nifty for Murray to claim this is the biggest yet proof of obstruction (it’s not, compared to the pardons promised), that’s not actually what happened, and Mueller would know that.

For example, the entire story about Flynn lying to Pence — which is something Sekulow and Dowd simply ignored in their January letter — is probably not true; and if it is, key White House staffers, including at least two of Burck’s clients, were lying to the nominal Transition head and were parties to Flynn’s lie.

On January 12, 2017, Washington Post columnist David Ignatius disclosed that US intelligence agencies had intercepted the phone calls, although Ignatius’s sources did not disclose the specifics of what either Flynn or Kislyak said. Vice President Mike Pence was immediately enlisted to defend Flynn. Flynn assured Pence that he never spoke to Kislyak about sanctions, whereupon Pence repeated those denials on Fox News and CBS’s Face the Nation. Flynn was then also questioned by the FBI about the phone calls, but once again denied that he had ever spoken to Kislyak about sanctions.

Similarly, the notion that Priebus would have to ask Flynn what he said to Kislyak on February 8 (when he had known it would include sanctions before Flynn made the call) is nonsense.

 On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.

Both Priebus and Flynn would know better. It’s possible Flynn and Priebus were putting on a show for the lawyers (but if so, that show would likely be just for John Eisenberg, because otherwise Burck would have a major conflict). It’s more likely the McGahn narrative was an attempt to make the internal story consistent with the public claims that only Flynn knew of the content of the calls.

One of the other key pieces of bullshit in the McGahn narrative is the claim that there was any doubt whether Flynn could be fired when Yates first presented her concerns to McGahn.

The McGahn timeline recounts: “Part of [our] concern was a recognition by McGahn that it was unclear from the meeting with Yates whether or not an action could be taken without jeopardizing an ongoing investigation.”

She clearly suggested (and would be backed by Mary McCord) that’s what they should do.

Finally, there’s something else missing from this narrative: that Flynn had spent the weekend between this alleged grilling from Priebus and McGahn in Mar-a-Lago with the President, sitting in on yet more sensitive meetings (in that case, with Shinzo Abe).

McGahn’s narrative may offer an explanation for why Trump fired Flynn, even if it doesn’t accord with known facts. But the entire narrative fails to explain why, if all the players knew and did what they said, Trump didn’t fire Flynn as soon as Yates suggested he should, or after they reviewed the intercepts (showing what they knew the conversation entailed), or after Priebus and McGahn grilled Flynn.

Which is not to say that McGahn’s letter isn’t proof of obstruction (albeit far less damning than Trump’s offers of pardons). It’s just an entirely different model of obstruction, and Murray’s story may be yet more PR from Don McGahn to make sure he’s on the right side of any obstruction charges.

The NYT’s Latest McGahnObstructAPalooza: Sometimes “Cooperation” Is Just Cover Your Ass

By far the most telling passage in this 2,225+ word story laying out Don McGahn’s “cooperation” with the Mueller inquiry is this passage:

Though he was a senior campaign aide, it is not clear whether Mr. Mueller’s investigators have questioned Mr. McGahn about whether Trump associates coordinated with Russia’s effort to influence the election.

Over two thousand words and over a dozen sources, and Maggie and Mike never get around to explaining whether Don McGahn has any exposure in or provided testimony for the investigation in chief, the conspiracy with Russia to win the election.

Instead, along the way, Maggie and Mike repeat some version of “obstruction” fourteen times –obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct — perpetuating the grossly misleading myth, once again, that Trump and his cronies are only at risk for obstruction charges. They do so even while describing a lawyer who represents three high placed witnesses in the case (along with McGahn, William Burck represents Reince Priebus and Steve Bannon) opining that the President’s legal exposure makes cooperation “insane.”

Mr. Burck has explained to others that he told White House advisers that they did not appreciate the president’s legal exposure and that it was “insane” that Mr. Trump did not fight a McGahn interview in court.

Along the way, the story engages in other kinds of spin, all of which happens to make Don McGahn look far better than he should.

White House Counsels have limited attorney-client privilege

A big part of this tale is premised on the notion that McGahn cooperated when he otherwise might not have had to, based on claims like this:

For a lawyer to share so much with investigators scrutinizing his client is unusual. Lawyers are rarely so open with investigators, not only because they are advocating on behalf of their clients but also because their conversations with clients are potentially shielded by attorney-client privilege, and in the case of presidents, executive privilege.

For a story that discusses John Dean explicitly, this claim is sheer malpractice. White House Counsels work for us, not for the President as private citizen, and as such, have limited attorney-client privilege, something that has now been litigated.

The story admits McGahn might have legal exposure, but doesn’t explain what that is

Much of the rest of the story is spun around an admittedly interesting tension, John Dowd’s decision to “cooperate” with the Mueller probe, including to make no executive privilege claims over McGahn’s testimony (which he could have done). As the story makes out, that led McGahn and the lawyer he hired because he thought he might have some criminal exposure, Burck, to worry about his criminal exposure.

Mr. McGahn and his lawyer, William A. Burck, could not understand why Mr. Trump was so willing to allow Mr. McGahn to speak freely to the special counsel and feared Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction, according to people close to him. So he and Mr. Burck devised their own strategy to do as much as possible to cooperate with Mr. Mueller to demonstrate that Mr. McGahn did nothing wrong.

And in a piece claiming McGahn worried Trump would blame him for any legally sketchy behavior, this paragraph shows McGahn instead blaming Trump.

In fact, Mr. McGahn laid out how Mr. Trump tried to ensure control of the investigation, giving investigators a mix of information both potentially damaging and favorable to the president. Mr. McGahn cautioned to investigators that he never saw Mr. Trump go beyond his legal authorities, though the limits of executive power are murky.

Yet the NYT doesn’t seem to think about why McGahn and the three-witness lawyer alarmed at the President’s legal exposure might also think he, McGahn, had legal exposure.

The problems with Don McGahn’s Flynn story

One bit of legal exposure that the NYT has provided evidence for — but confused as yet more actual legal discussion — is in McGahn’s role in the Mike Flynn firing (which the NYT inexplicably always treats as obstruction of justice).

Mr. McGahn gave to Mr. Mueller’s investigators, the people said, a sense of the president’s mind-set in the days leading to the firing of Mr. Comey; how the White House handled the firing of the former national security adviser, Michael T. Flynn; and how Mr. Trump repeatedly berated Mr. Sessions, tried to get him to assert control over the investigation and threatened to fire him.

As I have noted, the White House materials published by the NYT actually show that McGahn wrote an obviously misleading explanation for the Flynn firing, one that suppressed transition period emails that would undermine all the claims about Flynn deciding to lie about his discussion with Sergi Kislyak, and one which would conflict in material ways with the contemporaneous reports of Jim Comey, Sally Yates, and a number of other DOJ witnesses.

  • Don McGahn wrote a memo on the lead-up to Flynn’s firing two days after the firing, and one day after Trump’s “let it go” conversation with Jim Comey. It appears to be inconsistent with Transition materials, particularly an email showing (among other things) that Reince Priebus knew in real time what Flynn told Kislyak on December 29. Firing Comey would have been an effort to prevent FBI from discovering those transition period communications.

[snip]

Yates’ public testimony (to which Mary McCord would also be a witness) adds several elements to McGahn’s: she said the sanction discussion itself was wrong (elsewhere HPSCI has claimed she raised Logan Act violations). She talked about concerns about Pence’s credibility (remember–the White House doesn’t address getting Pence’s side of this story at all). And she claims she specifically suggested the White House should take action — that is, fire Flynn.

Finally, note that this passage cites an email chain dated January 12 — what was treated as campaign production with the Bates stamp “DJTJFP.” This is the only time the letter cites that production; they don’t, for example, cite the email chains referenced in Flynn’s plea that make it clear how hard it would have been to forget the Kislyak call because he was basically acting on orders from the President.

[snip]

After Yates spoke to McGahn, he had a meeting with Trump and Priebus and others.

On January 26, 2017, Mr. McGahn briefed the President concerning the information conveyed by Ms. Yates. Additional advisors were brought in, including White House Chief of Staff Mr. Priebus. It was agreed that additional information would be needed before any action was taken. As recorded by Mr. McGahn, “Part of this concern was a recognition by McGahn that it was unclear from the meeting with Yates whether an action could be taken without jeopardizing an ongoing investigation.” At that time “President Trump asked McGahn to further look into the issue as well as finding out more about the calls.”

Note how important it is that the letter ignore Yates’ public statements? She claims she suggested the White House should take action, meaning they should fire Flynn. The White House claimed (in a piece written after the “let it go” conversation) that they didn’t know whether they could fire Flynn because there might be an ongoing investigation. And Trump used that as an excuse to get more information on the investigation.

McGahn may have spent 30 hours blaming Trump for writing this obvious retrospective CYA piece (one piece of news in this piece is that McGahn has been called by for a third appearance by Mueller’s team, but the story doesn’t reveal when that was). But he wrote it. And he likely has some legal risk for having done so.

Sometimes cooperation is just a failure to obstruct

Which is one of my gripes with this story overall. In spite of describing how McGahn and his lawyer worried about the former’s legal exposure, exposure that led them to embrace the ability to appear before Mueller directly, the whole theme of this story is that McGahn “cooperated” with Mueller’s inquiry. The word, in some legal contexts, may mean “responded to legal requests in a way that limited a person’s own criminal exposure” and in others may mean “helped convict co-conspirators.”

In this story, the former connotation is used though the latter connotation is sold. Because the story doesn’t explain the difference in connotations, it makes McGahn look far more cooperative than he has necessarily been.

I mean, maybe he has been. But to make that case, you’d need to ask that basic question: is he also answering questions about the election conspiracy, questions that likely go beyond his own legal exposure?

Mueller can lay out Trump’s actions in an indictment listing him as a non-indicted witness or an Unindicted Co-Conspirator

There are two other details, regular features of Maggie and Mike’s stories on what White House lawyers tell them to say, that are pure PR.  First (because people on Twitter never understand this point), Maggie and Mike repeat something that Rudy Giuliani appears to have them chanting in their sleep, that the end product of this investigation is going to be a report to Congress.

Mr. Mueller has told the president’s lawyers that he will follow Justice Department guidance that sitting presidents cannot be indicted. Rather than charge Mr. Trump if he finds evidence of wrongdoing, he is more likely to write a report that can be sent to Congress for lawmakers to consider impeachment proceedings.

Thus far, Mueller has obtained four indictments and five guilty pleas, each laying out some potentially criminal conduct of associates. Indeed, the most recent indictment included this language, making it clear that Russian hackers responded to Trump’s request that Russia hack Hillary by … attempting to hack Hillary.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a thirdparty provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

That is, we’ve already seen nods towards Trump’s involvement in a conspiracy, without any report to Congress. Laying out Trump’s criminal actions as unindicted conduct in indictments has several legal advantages over just reporting it to Congress, including it would raise the stakes on pardoning any co-conspirators and potentially force Trump to sit for an interview. Moreover, indictments are how Mueller has communicated thus far, and how Rod Rosenstein has said they intend to communicate. So perhaps the NYT should stop simply repeating Rudy’s spin on this point?

Trump has demonstrably not provided unparalleled cooperation

Finally, Maggie and Mike include these three paragraphs uncritically in their piece.

Mr. Dowd said that cooperation was the right approach but that Mr. Mueller had “snookered” Mr. Trump’s legal team. The White House has handed over more than one million documents and allowed more than two dozen administration officials to meet with Mr. Mueller in the belief that he would be forced to conclude there was no obstruction case.

“It was an extraordinary cooperation — more cooperation than in any major case — no president has ever been more cooperative than this,” Mr. Dowd said, adding that Mr. Mueller knew as far back as October, when he received many White House documents, that the president did not break the law.

As the months passed on, the misinterpretation by Mr. McGahn and Mr. Burck that the president would let Mr. McGahn be blamed for any obstruction case has become apparent. Rather than placing the blame on Mr. McGahn for possible acts of obstruction, Mr. Trump has yet to even meet with the special counsel, his lawyers resisting an invitation for an interview.

As I have laid out, it is simply not the case that Trump has “more cooperation than in any major case.” George Bush’s White House provided similar cooperation in the (less major) CIA leak case, even before you fluff the numbers by counting texts as pages of documents. But that’s assuming something that this passage makes clear you can’t assume: that Trump will ever sit for an interview. Both Dick Cheney and George Bush were willing to sit for interviews; the former even did so under oath.

Compare that to the Plame affair leak investigation, when Bush sat for an interview in June 2004, and Cheney — who himself made some grossly false statements in his tenure — sat for one in May 2004 and a little-known follow-up that August. According to Cheney’s autobiography, “[T]he second session was conducted under oath so that [his] testimony could be submitted to the grand jury.” Zeidenberg, for his part, doesn’t remember any of those interviews requiring a subpoena.

Samborn, the Fitzgerald spokesperson who was famously reticent during the whole CIA leak investigation, offered an expansive rebuttal to Dowd’s claim that this White House has offered unprecedented cooperation. “Trump’s team can claim all the cooperation it wants, and whether justifiably so or not, it seems to me that it all gets negated, if at the end, he personally refuses to be questioned when so much substance depends on what he knew and did, as well as his state of mind.”

Any refusal to sit for an interview, Samborn said, was central evaluating the level of cooperation.

At some point, the NYT might stop repeating breathless stories premised on the notion that Trump will ever sit for an interview and instead report the fact — that Trump has refused the kind of cooperation with a legal investigation his predecessors have offered.

The IG Report (and Public Evidence) Shows that Peter Strzok Lost the Argument to Investigate Aggressively

CNN provides an explanation, such as one is possible, for why Trump thinks the DOJ IG report on the Hillary investigation undermines the entire Russia investigation, which he just tweeted about.

The logic treats the FBI investigation into suspected Russian assets on Trump’s campaign as a conspiracy against Trump personally, based in part on Peter Strzok’s texts, taken out of the context of decisions made on the Russia investigation.

Trump’s lawyers now believe that since the IG report gave those at the FBI “the benefit of the doubt” about their behavior — finding no conspiracy — then the President should receive the same treatment. “Why doesn’t that apply to the President as well?” one source said.

In addition, while the IG report found no evidence of political bias, the President’s attorneys believe they can argue the entire investigation is tainted and corrupt, given the text from FBI Agent Peter Strzok that said about Trump’s election, “We’ll stop it.”

Of course, even within the context of the Hillary IG report, Strzok offers the evidence against the corruption of the FBI: that unlike the constant leaks about the Hillary investigation (the IG Report’s far biggest fault is that it doesn’t treat the leaking from SDNY as a topic unto itself), the FBI didn’t leak, at all, about the investigation into the suspected Russian assets on Trump’s campaign.

Strzok stated that had he—or the FBI in general—actually wanted to prevent Trump from being elected, they would not have maintained the confidentiality of the investigation into alleged collusion between Russia and members of the Trump campaign in the months before the election. Page similarly stated that, although she could not speak to what Strzok meant by that text message, the FBI’s decision to keep the Russia investigation confidential before the election shows that they did not take steps to impact the outcome of the election.

Because this is an IG Report on the Hillary investigation and not an IG Report on the Russia investigation, it does not explain the import of this answer from Strzok, explaining his insurance policy text.

In a text message exchange on August 15, 2016, Strzok told Page, “I want to believe the path you threw out for consideration in Andy’s office—that there’s no way he gets elected—but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40….”

[snip]

Strzok provided a lengthy explanation for this text message. In substance, Strzok told us that he did not remember the specific conversation, but that it likely was part of a discussion about how to handle a variety of allegations of “collusion between members of the Trump campaign and the government of Russia.” As part of this discussion, the team debated how aggressive to be and whether to use overt investigative methods. Given that Clinton was the “prohibitive favorite” to win, Strzok said the reference in his text message to an “insurance policy” reflected his conclusion that the FBI should investigate the allegations thoroughly right away, as if Trump were going to win. Strzok stated that Clinton’s position in the polls did not ultimately impact the investigative decisions that were made in the Russia matter.

In the inevitable IG report on the Russia investigation, this passage will be followed with analysis of what the outcome of this debate was, whether to use overt investigative methods or not. It will show that Strzok lost that debate.

We know that, in part, because Sally Yates said as much, and said it about the investigation into Paul Manafort. This is her explanation to the IG about overt steps in advance of an election.

And the Bureau never pushed back on that concept. This actually came up with, in the connection with Paul Manafort. And they had an investigation on Manafort and I had a lengthy discussion with [McCabe], at least one, maybe more, about how important it was at that time that our investigation not be overt. And what they were, what the Bureau was doing with respect to Manafort because that could impact Trump even though he was no longer his campaign manager. That unless there was something they really needed to do, because they were getting records and doing that kind of, unless there was something they needed, really needed to do overt they really needed to stay under the radar screen…. Because it’s not fair to impact [an election].

That this comment is about Manafort is significant for two reasons. First, because Manafort’s corruption was — like the Hillary email investigation — public. More importantly, the date of Strzok’s text, August 15, likely means the discussion was specifically in the contexts of the stories that week about Manafort’s corruption.

Moreover, there’s additional evidence the FBI didn’t take overt steps, particularly with those still tied to Trump’s campaign. It wasn’t until some time after February 16, 2017  — literally six months after that text — that FBI subpoenaed George Papadopoulos’ call records, a move FBI could have taken at any time with a “relevance” standard. That delay meant that Papadopoulos hid the existence of his entire communication history with Ivan Timofeev until after his two interviews (and tried to hide it entirely by deleting his Facebook account).

In this post, I showed that, given that they didn’t know about Ivan Timofeev until after his interviews, they could not even have started pursuing a warrant until after the first interview, at best (and didn’t know about the existence communications over a Section 702 provider with Timofeev until after both). In this post, I suggested that it looked like the FBI first obtained a preservation order for the device GSA had on him on March 9, 21 days after his second interview.

Since then two details have come out. First, this Peter Strzok/Lisa Page SMS text highlighted by Matt Tait suggests that as late as June 6, 2017, the Special Counsel’s office was still debating whether searching Section 702 presented a litigation risk (meaning Trump’s buddies are getting far more protection than the rest of us might be).

Then there’s a point that Eric Swalwell made in Monday’s hearing debating whether or not to reveal the Schiff memo. In response to Michael Turner’s suggestion that there was no evidence of “collusion” between Trump and Russia, Swalwell pointed out that only after the FBI challenged Trump aide claims did the Bureau find evidence to support a conspiracy.

George Papadopoulos I think is the canary in the coal mine. He was interviewed January 27, 2017, by FBI. He lied about his contacts over in London with the professor. He was interviewed again in February, and he lied. Only when the FBI showed the willingness to subpoena his Skype and Facebook logs did he come around 6 months later.

This makes it clear that the FBI had not even obtained call records from Papadopoulos (via an NSL or a subpoena) before the second interview, the standard for which is really low.

Again, this shows that, at least during that phase of the investigation, the FBI was moving very conservatively.

And, as noted, even several weeks after Robert Mueller took over the investigation, the team was still debating whether they could do what FBI otherwise does at an assessment level, which is to search 702 data in the FBI’s custody. As I’ve noted, the use of lifetime Republican Stefan Halper to ask Papadopoulos questions (the FBI can use informants at the assessment level) rather than collecting actual call records not only seems to have been an effort to use least intrusive means possible to chase down leads, but it also badly delayed the discovery of key details about Russia’s attempts to curry favor with Trump aides.

If Peter Strzok argued in August that the FBI should be far more aggressive investigating suspected assets infiltrating the Trump campaign to prevent the possibility that a Manchurian candidate might take over the country, he lost that debate, and continued to lose it for the almost the entirety of the time he was involved in the investigation, which according to the IG Report came on July 28, the day after IG Michael Horowitz informed Rod Rosenstein and Mueller about his texts with Lisa Page.

We then obtained all text messages and instant messages for those FBI personnel for the entire period of the Midyear investigation through July 1, 2017, to capture post-election discussions.

[snip]

Strzok was removed from the Special Counsel’s investigation on approximately July 28, 2017, and returned to the FBI in another position, after the OIG informed the DAG and Special Counsel of the text messages discussed in this report on July 27, 2017.

So Strzok lost his argument to investigate more aggressively, and as soon as evidence of his alarm about the suspected assets infiltrating the Trump campaign and his disgust with Trump generally became known, he was removed from the case.

This is the evidence that Trump wants to turn into a conspiracy against him.

All that said, Strzok remained on the case just long enough to net its first arrest, that of Papadopoulos on July 26. Which is why I’m so interested in his explanation for a May 18, 2017 text, another one that disproves the conspiracy. In the text written 10 months after the start of the investigation, Strzok suggested his gut sense suggested “there’s no big there there.”

“you and I both know the odds are nothing. If I thought it was likely I’d be there no question. I hesitate in part because of my gut sense and concern there’s no big there there.”

Here’s his explanation of the text after the fact, which would incorporate information he learned in the two months he remained on the investigation after May 18.

As I looked at the predicating information, as I looked at the facts as we understood them from…the allegations that Russia had these emails, and offered to members of the Trump campaign to release them. As we looked at the various actors, the question [was,]…was that part of a broad, coordinated effort, or was that simply a bunch of opportunists seeking to advance their own or individual agendas…which of that is it? …My question [was] about whether or not this represented a large, coordinated conspiracy or not. And from that, as I looked at what would give me professional fulfillment, what I thought would be the best use of my skills and talents for the FBI and for the United States, whether to take, which path to take. [my emphasis]

On May 18, he suggested there was no big there there. But in a description of the investigation that reflects knowledge through July 28, during which period FBI finally started analyzing call records (and also learned about the June 9 Trump Tower meeting), he instead weighed it as a matter of determining whether there was a “broad, coordinated effort” or just “a bunch of opportunists seeking to advance their own or individual agendas.” Virtually all the evidence answering that question was collected and analyzed after Peter Strzok was removed from the investigation.

One detail here is new, however. When describing his understanding of the investigation through July 28, Strzok described Russians offering emails to members, plural, of the Trump campaign. Not just Papadopoulos.

Update: This post was edited for flow.

The Giant Holes in Trump’s Mike Flynn Story Point to “Collusion,” Not Obstruction

I wanted to look more closely at the story the President’s lawyers told Mueller’s team about Flynn’s firing in January, both for what it reveals about the White House’s response to the Sally Yates warning, and for its claims about how it interprets DOJ actions. The letter reveals the following:

  • The White House claims, Sally Yates’ public comments (which they entirely ignore) to the contrary, that they got DOJ permission to release the Mike Flynn intercept; given the timing of the story as laid out, and Trump’s question about FBI leaking, I actually think it possible if not likely that the White House was a source for the February 9 story leaking the intercept. If that’s true, it totally undermines the Trump letter.
  • Don McGahn wrote a memo on the lead-up to Flynn’s firing two days after the firing, and one day after Trump’s “let it go” conversation with Jim Comey. It appears to be inconsistent with Transition materials, particularly an email showing (among other things) that Reince Priebus knew in real time what Flynn told Kislyak on December 29. Firing Comey would have been an effort to prevent FBI from discovering those transition period communications.
  • The Trump letter didn’t address two of the questions asked about Flynn’s firing. In addition to remaining silent about what Trump really knew about what Flynn said to Pence, it doesn’t address Trump’s involvement in the transition period communications with Sergey Kislyak. That’s important because that’s the question that Flynn’s initial interview should have revealed. Contrary to what the letter claims, then, Flynn’s plea and Trump’s silence in the letter about the substance of the plea is proof not that Trump didn’t obstruct, but that Trump continues to refuse to explain why Flynn asked Kislyak to hold off on responding to sanctions, to say nothing of whether Flynn did so on his orders.

The section (less the Comey and McCabe testimony) and associated footnotes follow, with my comments.

Mueller asked for six Flynn related things; Trump only responded to four

Here are the things Mueller asked Trump to explain pertaining to the Flynn firing.He said

  1. Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
  2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
  3. Lt. Gen. Flynn’s interview with the FBI regarding the same;
  4. Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
  5. The President’s meeting on February 14, 2017, with then-Director James Comey;
  6. Any other relevant information regarding former National Security Advisor Michael Flynn;

In our most recent meeting, you mentioned the possibility of obstruction in connection with the case of former National Security Advisor and Lt. Gen. Michael Flynn (Ret.) “Lt. Gen. Flynn”), and that you desired to speak with the President specifically regarding his conversation with then-Director Comey one day after the President fired Lt. Gen. Flynn for lying to the Vice President.

Note, at the outset, how Trump’s lawyers have taken 6 questions about the specifics of communications about Flynn and turned that into a question that focuses on the meaning of the February 14 “Let it go” meeting? So as you’re reading the following, watch how Trump’s lawyers redefine the scope of the questions — I’ll revisit this at the end.

Also as you read this, remember that this response happens in the wake of (and may be the first meeting after) Mike Flynn flipping in part because Jared Kushner hung him out to dry in testimony.

You have already been provided the testimony of White House Counsel and his extensive internal file memo as well as the testimony and notes of the President’s Chief of Staff, Reince Priebus “Mr. Priebus”), and other members of the White House Counsel’s office.

Again, Mueller has asked specifically about Flynn’s comments to Pence. Pence is not included here.

Trump complains that Mueller hasn’t turned over Comey’s memos; the memos seriously undermine some claims made in the letter

According to former Mr. Comey, the following occurred at a February 14, 2017, meeting between him and the President:

The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” … I did not say I would “let this go.”16

The White House denied and refuted that the President said these words to Mr. Comey.17 We decline to recommend to the President that he be interviewed on this subject for many reasons.

16 We note that you have declined our request on several occasions to share the classified notes of Mr. Comey, which have been leaked to the press and given to members of Congress and publicly disclosed. As Chief Executive Officer, the President has every right to have them. You provided them to While House Counsel. In addition, we note that Mr. Comey has had to correct his testimony on multiple occasions.

17 See infra p. 11 and n. 30.

One of the questions added to Sekulow’s list in March addressed Trump’s tweet suggesting there might be recordings of this meeting, which makes this response all the more interesting. In any case, you’ll see that in January Trump’s lawyers made a number of claims that Comey’s memos solidly refuted.

I’m also confused by the apparent contradiction — both the demand that Mueller turn over Comey’s memos (I’ll return to what Mueller was likely withholding in a bit) followed by the claim that he has given them to Don McGahn.

The sources cited for claims about Flynn don’t support those claims and have since been undermined further

What follows is a non-exhaustive list:

  • First, the President was not under investigation by the FBI;
  • Second, there was no obvious investigation to obstruct since the FBI had concluded on January 24, 2017, that Lt. Gen. Flynn had not lied, but was merely confused.18Director Comey confirmed this in his closed-door Congressional testimony on March 2, 2017.19

18 Evan Perez, Flynn Changed Story to FBI; No Charges Expected, CNN (Feb. 17, 2017)

19 The Editorial Board, The Flynn Information, WALL STREET JOURNAL (Dec. I, 2017) “A Congressional source also tells us that former FBI director James Comey told the House Intelligence Committee on March 2 that his agents had concluded that Mr. Flynn hadn’t lied but had forgotten that had been discussed.”).

I suspect the first of these bullets — that the President was not under investigation — will come back to haunt him. That is, Trump wasn’t investigation yet in part because by firing Flynn he separated the investigation that would soon subsume him, in part because of his own role in the actions Flynn was fired for.

As for the claims about Flynn. First, notice that the first source Trump’s lawyers cite doesn’t support their claims. The story says nothing about Flynn being confused. Rather, it says that, when challenged, Flynn claimed not to remember.

Flynn initially told investigators sanctions were not discussed. But FBI agents challenged him, asking if he was certain that was his answer. He said he didn’t remember.

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.

In addition, the CNN story cited notes that the investigation was only done, “barring new information that changes what they know.” A lot would transpire in the weeks after that story, including disclosure of a meeting at which sanctions were raised, that would change how Flynn’s skilled lying looked after the fact.

The second source isn’t any better — it supports the “forgot” claim too. And the GOP HPSCI report makes it clear that even that claim is inaccurate. What Comey said was that the interviewing agents saw no signs of deception.

Director Comey testified to the Committee that “the agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”

From a lifetime intelligence official like Flynn, that’s not that surprising.

Trump’s lawyers get the law on obstruction wrong

Note, in the following section, I’m putting the initial bullet, the argument, and the footnotes all together. The footnotes will appear out of order as a result.

  • Third, as a matter of law, even if there had been an FBI investigation there could have been no actionable obstruction of said investigation under 18 U.S.C. § 1505, since an FBI investigation is not a “proceeding” under that statute. Since there is no cognizable offense, no testimony is required;

To briefly review the relevant law and facts, § 1505 of Title 18, United States Code, as amendedby the Victim and Witness Protection Act of 1982, forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing, or impeding any pending proceeding before a department or agency of the United States, or Congress.22Under § 1505, a “pending proceeding” is limited only to agencies with rule-making or adjudicative authority. The investigation of Lt. Gen. Flynn was being conducted by the FBI, which possesses only investigative authority, not adjudicative; it cannot conduct “proceedings” within the cognizance of§ 1505.23No court has ever held than an FBI investigation constitutes a § 1505 proceeding, and the U.S. Attorney’s Manual makes clear that “investigations by the Federal Bureau of Investigation (FBI) are not §1505 proceedings.”24The DOJ has even expressly acknowledged as much to the United States Court of Appeals for the Fourth Circuit.25As a matter of law, then, the FBI’s investigation of Lt. Gen. Flynn was not, at the time of the President’s comments as recalled by Mr. Comey, within the scope of § 1505.

22 In 1996, Congress enacted a clarifying amendment to 18 U.S.C. § 1515, which defines the term “corruptly” as used in § 1505 to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” False Statements Accountability Act of 1996, Pub. L. No. I 04-292, §3, I IO Stat. 3459, 3460.

23 Courts have explained it this way.

25 United States v. Adams, 335 Fed. Appx. 338, 342 (4th Cir. 2009) (Government conceded that criminal investigation by FBI or DEA was not pending proceeding within the scope of 18 U.S.C. § I 505, and requested defendant’s conviction on that count be vacated).

As numerous people have noted (including the NYT in an annotation of this), the President’s crack lawyers get which obstruction of justice statute might be at issue wrong.

Trump’s lawyers never address what Sally Yates has stated publicly — which badly undermines the Don McGahn narrative of these issues

The following section is the one I’m most interested in, because it probably added to the evidence that the White House obstructed. Because this argument is so muddled, I’m repeating the “second” point because it’s necessary to make what follows sensible. Having argued that obstructing an FBI investigation is not obstructing justice, Trump’s lawyers are now going to set out to suggest there was no way they could have known that Flynn was under investigation. (Note, for reasons of length, I don’t deal with Comey and McCabe’s testimony; suffice it to say that Comey’s testimony, including him entertaining the investigation of Trump, reportedly led directly to his firing, so the hearing actually proves the opposite of what the White House claims.)

  • Second, there was no obvious investigation to obstruct since the FBI had concluded on January 24, 2017, that Lt. Gen. Flynn had not lied, but was merely confused.18Director Comey confirmed this in his closed-door Congressional testimony on March 2, 2017.19
  • Fourth, both Mr. Comey and Mr. McCabe subsequently testified under oath that there was “no effort to impede” the investigation.20Mr. McCabe’s testimony followed Mr.Comey’s testimony on May 3, 2017, just six days before his termination, that “it would be a big deal to tell the FBI to stop doing something . . . for a political reason. That would be a very big deal. It’s not happened in my experience.”21

The following facts are taken from information voluntarily provided to your office or from information that is publicly available. These facts further demonstrate that the President did not obstruct justice in any manner concerning Lt. Gen. Flynn.

According to Acting Attorney General Sally Yates (“Ms. Yates”), on January 24, 2017, Lt. Gen. Flynn was interviewed by the FBI. According to reports, “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.”26

This account of the FBl’s interview and subsequent conclusions was later confirmed by the closed-door congressional testimony of Mr. Comey.27 Mr. Comey also confirmed in his May 3, 2017, Senate Intelligence Committee testimony that he “did participate in conversations about that matter” with Ms. Yates, referring to the FBl’s interview of Lt. Gen. Flynn. before she conveyed the information to the White House in the days that followed.28

27 “A Congressional source also tells us that former FBI director James Comey told the House Intelligence Committee on March 2 that his agents had concluded that Mr. Flynn hadn’t lied, but had forgotten what had been discussed.” The Editorial Board, The Flynn Information, WALL STREET JOURNAL (Dec. 1, 2017).

28 Read the Full Testimony of FBI James Comey in Which He Discusses Clinton Email Investigation, supra n.21.

This repeats what was already said, that the FBI at first came away thinking that Flynn had shown no signs of deception. Trump’s lawyers choose to source these claims to the same CNN and WSJ pieces they had already cited instead of 1) Flynn’s guilty plea 2) Comey’s testimony or 3) what Yates told McGahn. Only after having relied on the press that Trump otherwise demonizes does the letter cite what Yates actually said.

On January 26, 2017, Ms. Yates met with White House Counsel Don McGahn (“Mr. McGahn”). As outlined by Mr. McGahn in his White House Counsel’s Office memo dated February 15, 2017,29“Yates expressed two principal concerns during the meeting: (1) that Flynn may have made false representations to others in the Administration regarding the content of the calls; and (2) that Flynn’s potentially false statements could make him susceptible to foreign influence or blackmail because the Russians would know he had lied.” “Yates further indicated that on January 24, 2017, FBI agents had questioned Flynn about his contacts with Kislyak. Yates claimed that Flynn’s statements to the FBI were similar to those she understood he had made to Spicer and the Vice President.”3029 This confidential and privileged memorandum was provided to your office as part of the White House’s voluntary production, and is identified as SCR002b_SCR002b000000001.30 Recall that Lt. Gen. Flynn had previously been asked questions by other transition team personnel concerning his conversations with Ambassador Kislyak via an email chain of January 12, 2017. See DJTFP00027478. The response provided by Lt. Gen. Flynn was vague, and appears to imply that sanctions were not discussed. DOJ leadership would not advise the White House that transcripts of the calls existed, and of concerns about the content of those transcripts, until January 26, 2017, and even then, when asked by the White House, the DOJ refused to confirm that an investigation was underway.

Three things about this passage. First, whereas elsewhere the letter relies on public testimony (of Comey and McCabe), the letter doesn’t cite Yates’ public testimony. Instead, the White House relies on a narrative that Don McGahn drew up the day after the “let it go” conversation — that is, after such time as Flynn’s firing might be a problem. Here’s what they would have had to include had they actually included Yates’ testimony (which they don’t dispute).

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.

And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.

We told him the third reason was — is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.

Yates’ public testimony (to which Mary McCord would also be a witness) adds several elements to McGahn’s: she said the sanction discussion itself was wrong (elsewhere HPSCI has claimed she raised Logan Act violations). She talked about concerns about Pence’s credibility (remember–the White House doesn’t address getting Pence’s side of this story at all). And she claims she specifically suggested the White House should take action — that is, fire Flynn.

Finally, note that this passage cites an email chain dated January 12 — what was treated as campaign production with the Bates stamp “DJTJFP.” This is the only time the letter cites that production; they don’t, for example, cite the email chains referenced in Flynn’s plea that make it clear how hard it would have been to forget the Kislyak call because he was basically acting on orders from the President. In any case, the letter remarkably describes nothing about this chain of emails, not even who participated in it. But given the timing, it almost certainly was a response to the January 12 Ignatius story, and therefore was likely a press response chain. It may have also been prep for this all-important Pence appearance.

McGahn’s narrative reveals Trump knew of the Flynn interview before he demanded loyalty from Comey on January 27

Resuming … This is a detail that has gotten far too little attention. After Yates spoke to McGahn, he had a meeting with Trump and Priebus and others.

On January 26, 2017, Mr. McGahn briefed the President concerning the information conveyed by Ms. Yates. Additional advisors were brought in, including White House Chief of Staff Mr. Priebus. It was agreed that additional information would be needed before any action was taken. As recorded by Mr. McGahn, “Part of this concern was a recognition by McGahn that it was unclear from the meeting with Yates whether an action could be taken without jeopardizing an ongoing investigation.” At that time “President Trump asked McGahn to further look into the issue as well as finding out more about the calls.”

Note how important it is that the letter ignore Yates’ public statements? She claims she suggested the White House should take action, meaning they should fire Flynn. The White House claimed (in a piece written after the “let it go” conversation) that they didn’t know whether they could fire Flynn because there might be an ongoing investigation. And Trump used that as an excuse to get more information on the investigation.

McGahn’s narrative claims Yates said DOJ would not mind if the White House publicly revealed the intercept on Kislyak

Which is what leads to the January 27 meeting with Yates and McGahn.

On January 27, 2017, at Mr. McGahn’s request, Ms. Yates and Mr. McGahn had another meeting. Importantly, DOJ leadership declined to confirm to the White House that Lt. Gen. Flynn was under any type of investigation. According to Mr. McGahn’s memo:

During the meeting, McGahn sought clarification regarding Yates’s prior statements regarding Flynn’s contact with Ambassador Kislyak. Among the issues discussed was whether dismissal of Flynn by the President would compromise any ongoing investigations. Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the DOJ would not object to the White House taking action against Flynn. (Emphasis added.)

Further supporting the White House’s understanding that there was no FBI investigation that could conceivably have been impeded, “Yates also indicated that the DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak.” In other words, the DOJ expressed that the White House could make public that Lt. Gen. Flynn’s calls with Ambassador Kislyak had been surveilled. It seems quite unlikely that if an ongoing DOJ investigation of Lt. Gen. Flynn was underway, the DOJ would approve its key investigation methods and sources being publicized.

Key to the White House argument, then, are two details: first, that Yates didn’t confirm for McGahn that there was an ongoing investigation, but also his claim that, “DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak” Yates’ testimony portrays that very differently. First of all, she describes talking about the crimes that Flynn might be prosecuted for — surely a tip-off he was being investigated. More interestingly, what McGahn portrayed as DOJ’s assent for releasing news of the FISA wiretap publicly, Yates seems to have taken it to mean DOJ was willing to share the wiretap intercept privately, with the White House; she even implies she meant they could come to DOJ to review the intercept.

WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?

YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.

And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically,

[snip]

And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

That McGahn is spinning this as permission to release the intercept publicly is remarkable, given that it leaked. Want to bet this means FBI determined the leaks about the Flynn wiretap were leaked by the White House?

Trump’s initial loyalty demand from Comey closely followed him learning about Flynn interview

That’s particularly significant given the weird dinner Trump had with Comey that night, which Comey documented at the time. I describe that meeting and its significance as follow-up to the second Yates meeting here. But the key details are that Trump:

  • Invited the FBI to investigate the pee tape to prove it was inaccurate (which I assume was an explicit request for public exoneration)
  • Asked if the FBI leaks (given the White House claim that DOJ said the FISA intercept could be released, the question is all the more interesting)
  • Asked, for the third time, if Comey wanted to keep his job
  • Asked for loyalty
  • Made this remarkable comment suggesting he didn’t trust Flynn that among other things pretended that Trump didn’t know of the impending Putin call

He then went on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. (“This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.” I did not comment at any point during this topic and there was no mention or acknowledgement of any FBI interest in or contact with General Flynn.

All of which is to say that McGahn’s narrative conflicts in very key ways with the contemporaneous documentation of DOJ.

For some reason (McGahn claims) Reince Priebus grilled Mike Flynn about question he already knew the answer to

Which brings us to the claims that McGahn recorded the day after the conversation but which, in the wake of Flynn’s plea, are remarkable.

Your office is also aware that, in the week leading up to Lt. Gen. Flynn’s termination and the President’s alleged comments to Mr. Comey, Lt. Gen. Flynn had told both White House Counsel and the Chief of Staff at least twice that the FBI agents had told him he would not be charged. The first instance occurred during a discussion at the White House on February 8, 2017, between Mr. McGahn, Mr. Priebus, Mr. John Eisenberg and Lt. Gen. Flynn. “Priebus led the questioning” and “asked Flynn whether Flynn spoke about sanctions on his call with Ambassador Kislyak.” Lt. Gen. Flynn’s “recollection was inconclusive” and he responded that “he either was not sure whether he discussed sanctions, or did not remember doing so.” “Priebus specifically asked Flynn whether he was interviewed by the FBI. Flynn stated that FBI agents met with him to inform him that their investigation was over.” The second occurred on a telephone call on February 10, 2017, wherein Mr. McGahn, Mr. Priebus, and the Vice President confronted Lt. Gen. Flynn concerning his discussions with Ambassador Kislyak. As recorded in Mr. McGahn’s memo, “On the phone, Flynn is asked about the FBI investigation to which he says that the FBI told him they were closing it out.”

On February 10, 2017, upon confirming the true content and nature of Lt. Gen. Flynn’s three telephone calls with Ambassador Kislyak, and in light of his statements to them and the Vice President, White House Counsel Don McGahn and Chief of Staff Reince Priebus advised the President that Lt. Gen. Flynn “had to be let go.” As a result, on February 13, 2017, the President accepted Lt. Gen. Flynn’s resignation.

So the White House counsel says that a memo he wrote on February 15 said that on February 8, he, Reince Priebus, John Eisenberg, and Flynn quizzed Flynn about whether he asked Kislyak about sanctions.

That same day, per Jim Comey, Flynn had chummed up to Comey while he was waiting for a meeting with Priebus. And Priebus had asked Comey if there was a FISA order targeting Flynn personally. So already, the White House story doesn’t make sense. They weren’t trying to find out what Flynn had done, but rather how much scrutiny the White House was under as a result.

And it makes far, far less sense however when you consider that Reince Priebus would have learned in real time that Flynn spoke about sanctions with Kislyak. Tom Bossert forwarded the KT McFarland email detailing her (almost certainly relayed from Trump) instructions to Priebus (and Sean Spicer). What this meeting appears to be is not so much an effort to find out what Flynn said to Kislyak, it’s to find out how damning his lies to the FBI were. To which Flynn twice claimed (according to McGahn) that the FBI had dropped the inquiry.

The White House letter (and apparently McGahn’s narrative) are suspiciously silent on the February 9 WaPo story

The White House claims it got notice about what really happened with Flynn on February 10. The WaPo story revealing what those transcripts said came out after 9PM on February 9. Given the White House claim that DOJ had given permission to leak this, I think it quite possible the White House was the source for this story. Whether or not that’s true, the report in the story — in one of the most sensational stories of the Trump presidency — that “the FBI is continuing to examine Flynn’s communications with Kislyak” completely undermines the White House claim that they had no way of knowing that Flynn remained under investigation.

One way or another by Friday, February 10, the White House had gotten the information McGahn requested of Yates on January 27; given the delay and WaPo’s report, that might include the 302, as well as the intercepts. If it included the 302, it would have made it clear that, whatever the FBI agents believed about Flynn’s demeanor, the investigation hadn’t been  concluded.

Which is why Trump fired Flynn. Not because of anything he told Pence (remember: this letter completely blows off the request to learn about Flynn’s communications with Pence). But because keeping Flynn around meant remaining under scrutiny by FBI. Perhaps, too, Flynn had to be fired because retaining him would sustain the focus on precisely why Flynn (almost certainly operating under orders from Trump) intervened with the Russians about sanctions.

Nevertheless, that’s the opposite of what this letter argues. It uses that February 15 memo from McGahn, a memo that appears to be undermined by the Transition period discovery the White House knew to be in Mueller’s possession (not least because it was cited in Flynn’s plea), that claims no one had any way of knowing that Flynn was under investigation.

According to Mr. Comey’s testimony, the next day, on February 14, 2017, the President made comments expressing his “hope” that Mr. Comey “could see [his] way to letting this go” in reference to the situation with Lt. Gen. Flynn. The White House disputed Mr. Comey’s recollection of that conversation. Regardless, the White House Counsel and Chief of Staff, as well as others surrounding the President, had every reason to believe at that time that the FBI was not investigating Lt. Gen. Flynn, especially in light of the fact that Lt. Gen. Flynn was allowed to keep his active security clearance.

Even as Trump tries to claim he facilitated justice by firing Flynn, he continues to hide the same thing Flynn hid by lying

The letter ends with a bunch of claims that are barely supported, if at all.

  • Fifth, the investigation of Lt. Gen. Flynn proceeded unimpeded and actually resulted in a charge and a plea;
  • Sixth, assuming, arguendo, that the President had made a comment to Mr. Comey that Mr. Comey claimed to be a direction, as the chief law enforcement official pursuant to Article II of the United States Constitution, the President had every right to express his view of the case;
  • Seventh, your office already has an ample record upon which to base your findings of no obstruction. As such there is no demonstrated, specific need for the President’s responses; and,
  • Eighth, by firing Lt. Gen. Flynn, the President actually facilitated the pursuit of justice. He removed a senior public official from office within seventeen days, in the absence of any action by the FBI and well before any action taken by your office.

For all intents, purposes, and appearances, the FBI had accepted Flynn’s account; concluded that he was confused but truthful; decided not to investigate him further; and let him retain his clearance. As far as he could tell, the President was the only one who decided to continue gathering and reviewing the facts in order to ascertain whether Lt. Gen. Flynn’s actions necessitated severe and consequential action — removal from office. The President ordered his White House Counsel to continue its review of the situation, which ultimately concluded that Lt. Gen. Flynn had misled the Vice President. The President did not obstruct justice. To the contrary, he facilitated it.

We emphasize these points because even if an FBI investigation constituted a ‘’proceeding” under the statute, which it does not, the statute also requires intent to obstruct. There could not possibly have been intent to obstruct an “investigation” that had been neither confirmed nor denied to White House Counsel, and that they had every reason (based on Lt. Gen. Flynn’s statements and his continued security clearance) to assume was not ongoing. Further, by insisting on and accepting Lt. Gen. Flynn’s public resignation as national security adviser, the President expedited the pursuit of justice while the DOJ and the FBI were apparently taking no action.

So, to reiterate, within seventeen days of first being advised by DOJ leadership concerning Lt. Gen. Flynn, and within just three days of the President’s senior team confirming the requisite facts, the President took decisive action and directed Lt. Gen. Flynn, his highest ranking national security advisor, to resign. The President did so in spite of the fact that the FBI had, apparently, decided not to pursue the case further. The President did so in spite of the great political cost to himself. Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the President. His actions speak louder than any words.

Let’s work backwards from where Trump claims he was helping justice by waiting 17 days, through a number of classified meetings (including the Putin one), before letting someone go that Yates has suggested should have been fired from the start. I suspect the McGahn letter tries to work backwards to spin the delay in better light.

There’s a good reason why Mueller’s team didn’t give Trump Comey’s memo before they wrote this letter. Because his account of the January 27 and February 8 interactions undermine the White House narrative, quite severely in the case of the January 27 dinner. And those earlier interactions can’t be viewed as Trump just commenting on a case.

That brings us to bullet five and seven: Trump’s claim that Mueller charged Flynn in spite of Trump’s efforts to obstruct and that Mueller has enough information without his testimony.

Both bullets obscure the nature of the inquiry. After all, Flynn got a plea because Mueller needed it to understand what was really going on with his communications with Kislyak (and Israel). That is, it took ten months until Mueller finally got at the jist of the issue, which is whether Flynn’s deferral of sanctions, almost certainly on orders from Trump, was part of a quid pro quo.

And in addition to the Pence questions I’ve focused on, this letter does absolutely nothing to address bullet point one: “information regarding his contacts with Ambassador Kislyak about sanctions during the transition process.” Which is to say that in January, Mueller asked Trump to finally come clean about why he was undercutting Obama’s policy on sanctions (and why Flynn lied about it).

That’s the “collusion” question behind the obstruction one. Trump refused to answer it then, and he continued to refuse to answer it when Mueller asked again (and added a slew more “collusion” questions) in March.

Which is to say, the more Trump refuses to answer Mueller’s questions, the bigger the “collusion” questions get.

Update: Subtitles added for clarity.

Did the FBI Have a Chance to Fix Their Lies about Encryption in 2016?

The WaPo reports that the FBI has been presenting grossly inflated numbers describing how many devices it can’t open because of encryption. The error stems, the FBI claims, to a “programming” error that actually sounds like an analytical error: the double or triple counting of the same encrypted phones.

Over a period of seven months, FBI Director Christopher A. Wray cited the inflated figure as the most compelling evidence for the need to address what the FBI calls “Going Dark” — the spread of encrypted software that can block investigators’ access to digital data even with a court order.

The FBI first became aware of the miscount about a month ago and still does not have an accurate count of how many encrypted phones they received as part of criminal investigationslast year, officials said. Last week, one internal estimate put the correct number of locked phones at 1,200, though officials expect that number to change as they launch a new audit, which could take weeks to complete, according to people familiar with the work.

“The FBI’s initial assessment is that programming errors resulted in significant over-counting of mobile devices reported,’’ the FBI said in a statement Tuesday. The bureau said the problem stemmed from the use of three distinct databases that led to repeated counting of phones. Tests of the methodology conducted in April 2016 failed to detect the flaw, according to people familiar with the work.

I find the April 2016 failed test suspicious.

To know why, consider this bit of history. Back in 2015, in the wake of Apple making encryption standard, Jim Comey and Sally Yates made a big pitch for back doors. But when Al Franken asked them, they admitted the FBI didn’t actually know how big the problem is.

Over an hour and a quarter into the SJC hearing, Al Franken asked for actual data demonstrating how big of a problem encryption really is. Yates replied that the government doesn’t track this data because once an agency discovers they’re targeting a device with unbreakable encryption, they use other means of targeting. (Which seems to suggest the agencies have other means to pursue the targets, but Yates didn’t acknowledge that.) So the agencies simply don’t count how many times they run into encryption problems. “I don’t have good enough numbers yet,” Comey admitted when asked again at the later hearing about why FBI can’t demonstrate this need with real data.

Nevertheless, in spite of Congress’ request for real numbers in July 2015, in January 2016 — just as some at FBI were trying to create an excuse to force Apple to open Syen Rizwan Farook’s phone — Comey and Yates admitted they still hadn’t started tracking numbers.

Around January 26, 2016 (that’s the date shown for document creation in the PDF) — significantly, right as FBI was prepping to go after Syed Rizwan Farook’s phone, but before it had done so — Comey and Yates finally answered the Questions for the Record submitted after the hearing. After claiming, in a response to a Grassley question on smart phones, “the data on the majority of the devices seized in the United States may no longer be accessible to law enforcement even with a court order or search warrant,” Comey then explained that they do not have the kind of statistical information Cy Vance claims to keep on phones they can’t access, explaining (over five months after promising to track such things),

As with the “data-in-motion” problem, the FBI is working on improving enterprise-wide quantitative data collection to better explain the “data-at-rest” problem.”

[snip]

As noted above, the FBI is currently working on improving enterprise-wide quantitative data collection to better understand and explain the “data at rest” problem. This process includes adopting new business processes to help track when devices are encountered that cannot be decrypted, and when we believe leads have been lost or investigations impeded because of our inability to obtain data.

[snip]

We agree that the FBI must institute better methods to measure these challenges when they occur.

[snip]

The FBI is working to identify new mechanisms to better capture and convey the challenges encountered with lawful access to both data-in-motion and data-at =-rest.

Grassley specifically asked Yates about the Wiretap report. She admitted that DOJ was still not collecting the information it promised to back in July.

The Wiretap Report only reflects the number of criminal applications that are sought, and not the many instances in which an investigator is dissuaded from pursuing a court order by the knowledge that the information obtained will be encrypted and unreadable. That is, the Wiretap Report does not include statistics on cases in which the investigator does not pursue an interception order because the provider has asserted that an intercept solution does not exist. Obtaining a wiretap order in criminal investigations is extremely resource-intensive as it requires a huge investment in agent and attorney time, and the review process is extensive. It is not prudent for agents and prosecutors to devote resources to this task if they know in advance the targeted communications cannot be intercepted. The Wiretap Report, which applies solely to approved wiretaps, records only those extremely rare instances where agents and prosecutors obtain a wiretap order and are surprised when encryption prevents the court-ordered interception. It is also important to note that the Wiretap Report does not include data for wiretaps authorized as part of national security investigations.

These two answers lay out why the numbers in the Wiretap Report are of limited value in assessing how big a problem encryption is.

Significantly, Comey and Yates offered these answers in response to a Chuck Grassley question about whether they believed, as the corrupt Cy Vance had claimed in Senate testimony, that “71% of all mobile devices examined…may be outside the reach of a warrant.”

The number FBI is now trying to correct was “more than half,” inching right up towards that 71% Vance floated years ago. In other words, this faulty methodology got them to where they needed to go.

I find that all the more suspicious given something that happened later in 2016. As soon as Jim Comey started providing numbers in August 2016, back when they showed 13% of phones could not be accessed, I asked how FBI came up with the number. At the time, a spox admitted that the number included more than encrypted phones — it also included deleted or destroyed phones.

It is a reflection of data on the number of times over the course of each quarter this year that the FBI or one of our law enforcement partners (federal, state, local, or tribal) has sought assistance from FBI digital forensic examiners with respect to accessing data on various mobile devices where the device is locked, data was deleted or encrypted, the hardware was damaged, or there were other challenges with accessing the data. I am not able to break that down by crime type.

That is, in September 2016, five months after FBI failed to find their flawed methodology, an FBI spox told me the number used was not an accurate count of how many phones couldn’t be accessed because of encryption.

When then FBI General Counsel James Baker used the same 13% a few months later, claiming all were encrypted, I checked back. The same spox said the number at that point was just encrypted phones.

It is true that damaged devices are provided to CART and RCFL for FBI assistance, but the 886 devices in FY16 that the FBI was not able to access (which is the number that GC Baker provided last week), does not include those damaged devices. It includes only those devices for which we encountered a password we were not able to bypass.

Now, it’s possible that the methodological problem I identified in 2016 — that their “Going Dark” number actually included phones they couldn’t access for entirely different reasons — was a different problem than the one just identified a month ago (just before Baker retired). Certainly, it doesn’t sound like the same problem (though as I reminded someone from DOJ’s IG some time ago, the forensics labs sending in these numbers have a history of unreliable numbers). That said, given the proliferation of chat apps with disappearing messages that amount to “destroyed” evidence — which under the flawed methodology used in 2016 would be counted as an encryption problem — it could be.

Still, what I identified in September 2016 was a methodological problem. It should have triggered a closer look at the time.

Instead, the FBI has been lying about how bad the Going Dark problem is for another year and a half.

The Sekulow Questions, Part Five: Attempting a Cover-Up by Firing Comey

In this series, I have been showing a framework for the investigation that the Mueller questions, as imagined by Jay Sekulow, maps out. Thus far I have shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him.

This post lays out the questions on obstruction that lead up to Comey’s firing on May 9, 2017.

February 14, 2017: What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?

On February 13, Trump fired Mike Flynn. The explanation he gave was one of the concerns Sally Yates had given to Don McGahn when she told him about the interview, that Flynn had lied to Mike Pence about having discussed sanctions relief with Sergey Kislyak on December 29, 2016. Except, coming from Trump, that excuse makes no sense, both because he had already shown he didn’t care about the counterintelligence implications of that lie by including Flynn in the January 28 phone call with Putin and other sensitive meetings. But also because at least seven people in the White House knew what occurred in Flynn’s calls, and Pence probably did too.

Against that backdrop, the next day, Trump had Jim Comey stay late after an oval office meeting so he could ask him to drop the investigation into Flynn. Leading up to this meeting, Trump had already:

  • Asked Comey to investigate the pee tape allegations so he could exonerate the President
  • Asked if FBI leaks
  • Asked if Comey was loyal shortly after asking him, for the third time, if he wanted to keep his job
  • Claimed he distrusted Flynn’s judgment because he had delayed telling Trump about a congratulatory call from Putin

After Trump asked everyone in the meeting to leave him and Comey alone, both Jeff Sessions and Jared Kushner lingered.

While the description of this meeting usually focuses on the Flynn discussion, according to Comey’s discussion, it also focused closely on leaks, which shows how Trump linked the two in his mind.

Here’s what Comey claims Trump said about Flynn:

He began by saying he wanted to “talk about Mike Flynn.” He then said that, although Flynn “hadn’t done anything wrong” in his call with the Russians (a point he made at least two more times in the conversation), he had to let him go because he misled the Vice President, whom he described as “a good guy.” He explained that he just couldn’t have Flynn misleading the vice President and, in any event, he had other concerns about Flynn, and had a great guy coming in, so he had to let Flynn go.

[a discussion of Sean Spicer’s presser explaining the firing and another about the leaks of his calls to Mexican and Australian leaders]

He then referred at length to the leaks relating to Mike Flynn’s call with the Russians, which he stressed was not wrong in any way (“he made lots of calls”), but that the leaks were terrible.

[Comey’s agreement with Trump about the problem with leaks, but also his explanation that the leaks may not have been FBI; Reince Priebus tries to interrupt but Trump sends him away for a minute or two]

He then returned to the topic of Mike Flynn, saying that Flynn is a good guy, and has been through a lot. He misled the Vice President but he didn’t do anything wrong on the call. He said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied by saying, “I agree he is a good guy,” but said no more.

In addition to providing Trump an opportunity to rebut Comey, asking this question might aim to understand the real reason Trump fired Flynn.

March 2, 2017: What did you think and do regarding the recusal of Mr. Sessions?  What efforts did you make to try to get him to change his mind? Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?

On March 2, citing consultations with senior department officials, Sessions recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States,” while noting that, “This announcement should not be interpreted as confirmation of the existence of any investigation or suggestive of the scope of any such investigation.” At that point, Dana Boente became Acting Attorney General for the investigation.

Note that this question isn’t just about Trump’s response to Sessions’ recusal — it’s also about what he did in advance of it. That’s likely because even before Sessions recused, Trump got Don McGahn to try to pressure the Attorney General not to do so. He also called Comey the night before and “talked about Sessions a bit.” When Sessions ultimately did recuse, Trump had a blow-up in which he expressed a belief that Attorneys General should protect their president.

[T]he president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him. Mr. Trump said he had expected his top law enforcement official to safeguard him the way he believed Robert F. Kennedy, as attorney general, had done for his brother John F. Kennedy and Eric H. Holder Jr. had for Barack Obama.

Mr. Trump then asked, “Where’s my Roy Cohn?”

In the days after the Sessions recusal, Trump also kicked off the year-long panic about being wiretapped.

On Thursday, Jeff Sessions recused from the election-related parts of this investigation. In response, Trump went on a rant (inside the White House) reported to be as angry as any since he became President. The next morning, Trump responded to a Breitbart article alleging a coup by making accusations that suggest any wiretaps involved in this investigation would be improper. Having reframed wiretaps that would be targeted at Russian spies as illegitimate, Trump then invited Nunes to explore any surveillance of campaign officials, even that not directly tied to Trump himself.

And Nunes obliged.

Don McGahn and Jeff Sessions, among others, have already provided their side of this story to Mueller’s team.

March 2 to March 20, 2017: What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?

As Sekulow has recorded Mueller’s question, the special counsel wants to know what Trump already knew of the investigation into Mike Flynn before Comey publicly confirmed it in Congressional testimony. This may be a baseline question, to measure how much of Trump’s response was a reaction to the investigation becoming public.

But there are other things that went down in the weeks leading up to Comey’s testimony. Devin Nunes had already made considerable efforts to undermine the investigation; he would have been briefed on the investigation on March 2 (see footnote 75), the same day as Sessions recused.Trump went into a panic on March 4, just days after Sessions recusal, about being wiretapped; I’m wondering if there’s any evidence that Trump or Steven Bannon seeded the Breitbart story that kicked off the claim of a coup against Trump. Also of note is Don McGahn’s delay in conveying the records retention request about the investigation to the White House, even as Sean Spicer conducted a device search to learn who was using encrypted messengers.

March 20, 2017: What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.

On March 20, in testimony to the House Intelligence Committee, Comey publicly confirmed the counterintelligence investigation into Trump’s campaign.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In addition to questions about the investigation (including the revelation that FBI had not briefed the Gang of Eight on it until recently; we now know the briefing took place the day Jeff Sessions recused which suggests FBI avoided letting both Flynn and Sessions know details of it), Republicans used the hearing to delegitimize unmasking and the IC conclusion that Putin had affirmatively supported Trump.

Sekulow’s questions (or NYT’s rendition of them) lump the hearing, at which Admiral Mike Rogers also testified, in with Trump’s pressure on his spooks to issue a statement that he wasn’t under investigation. Two days after the hearing, Trump pressured Mike Pompeo and Dan Coats to intervene with Comey to stop the investigation.

It’s possible that the term “intelligence officials” includes HPSCI Chair Devin Nunes. On March 21, Nunes made his nighttime trip to the White House to accelerate the unmasking panic. Significantly, the panic didn’t just pertain to Flynn’s conversations with Sergey Kislyak; it also focused on the revelation of Mohammed bin Zayed al Nahyan’s secret trip to New York and probably other conversations with the Middle Eastern partners that have become part of this scandal.

The day after Nunes’ nighttime trip, Trump called Coats and Rogers (and probably Pompeo) and asked them to publicly deny any evidence of a conspiracy between Trump’s campaign and Russia; NSA documented the call to Rogers.

It’s now clear that the calls Nunes complained about being unmasked actually are evidence of a conspiracy (and as such, they probably provided an easy roadmap for Mueller to find the non-Russian conversations).

March 30, 2017: What was the purpose of your call to Mr. Comey on March 30?

On March 30, Trump called Comey on official phone lines and asked him to exonerate him on the Russia investigation. According to Comey, the conversation included the following:

He then said he was trying to run the country and the cloud of this Russia business was making that difficult. He said he thinks he would have won the health care vote but for the cloud. He then went on at great length, explaining that he has nothing to do with Russia (has a letter from the largest law firm in DC saying he has gotten no income from Russia). was not involved with hookers in Russia (can you imagine me, hookers? I have a beautiful wife, and it has been very painful). is bringing a personal lawsuit against Christopher Steele, always advised people to assume they were being recorded in Russia. has accounts now from those who travelled with him to Miss Universe pageant that he didn’t do anything, etc.

He asked what he could do to lift the cloud. I explained that we were running it down as quickly as possible and that there would be great benefit, if we didn’t find anything, to our Good Housekeeping seal of approval, but we had to do our work. He agreed, but then returned to the problems this was causing him, went on at great length about how bad he was for Russia because of his commitment to more oil and more nukes (ours are 40 years old).

He said something about the hearing last week. I responded by telling him I wasn’t there as a volunteer and he asked who was driving that, was it Nunes who wanted it? I said all the leadership wanted to know what was going on and mentioned that Grassley had even held up the DAG nominee to demand information. I said we had briefed the leadership on exactly what we were doing and who we were investigating.

I reminded him that I had told him we weren’t investigating him and that I had told the Congressional leadership the same thing. He said it would be great if that could get out and several times asked me to find a way to get that out.

He talked about the guy he read about in the Washington Post today (NOTE: I think he meant Sergei Millian) and said he didn’t know him at all. He said that if there was “some satellite” (NOTE: I took this to mean some associate of his or his campaign) that did something, it would be good to find that out, but that he hadn’t done anything and hoped I would find a way to get out that we weren’t investigating him.

Trump also raised “McCabe thing,” yet another apparent attempt to tie the retention of McCabe to public exoneration from Comey.

Given the news that Sergei Millian had been pitching George Papadopoulos on a Trump Tower deal in the post-election period, I wonder whether Trump’s invocation of him in conjunction with “some satellite” is a reference to Papadopoulos, who had already been interviewed twice by this time. Nunes would have learned of his inclusion in the investigation in the March 2 CI briefing.

On top of the clear evidence that this call represented a (well-documented, including a contemporaneous call to Dana Boente) effort to quash the investigation and get public exoneration, the conversation as presented by Comey also includes several bogus statements designed to exonerate him. For example, Millian had actually worked with Trump in past years selling condos to rich Russians. Trump never did sue Steele (Michael Cohen sued BuzzFeed and Fusion early this year, but he dropped it in the wake of the FBI raid on him). And the March 8 letter from Morgan Lewis certifying he didn’t get income from Russia is unrelated to whether he has been utterly reliant on investment from Russia (to say nothing of the huge sums raised from Russian oligarchs for his inauguration). In other words, like the earlier false claim that Trump hadn’t stayed overnight in Moscow during the Miss Universe pageant and therefore couldn’t have been compromised, even at this point, Trump’s attempts to persuade the FBI he was innocent were based off false claims.

March 30, 2017: Flynn asks for immunity

Mike Flynn first asked Congress for immunity on March 30, 2017, with Trump backing the effort in a tweet.

A later question deals with this topic — and suggests Trump may have contacted Flynn directly about immunity at this time, but that contact is not public, if it occurred.

April 11, 2017: What was the purpose of your call to Mr. Comey on April 11, 2017?

At 8:26AM on April 11, Comey returned a call to Trump. Trump asked again for Comey to lift the cloud on him.

He said he was following up to see if I did what he had asked last time–getting out that he personally is not under investigation. I relied that I had passed the request to the Acting AG and had not heard back from him. He spoke for a bit about why it was so important. He is trying to do work for the country, visit with foreign leaders, and any cloud, even a little cloud gets in the way of that. They keep bringing up the Russia thing as an excuse for losing the election.

[snip]

He then added, “Because I have been very loyal to you, very loyal, we had that thing, you know.”

[snip]

He then said that I was doing a great job and wished me well.

April 11, 2017: What was the purpose of your April 11, 2017, statement to Maria Bartiromo?

On April 12, Fox Business News broadcast an interview with Maria Bartiromo (Mueller must know it was recorded on April 11, so presumably after the call with Comey). There are three key aspects of the interview. First, in the context of Trump’s failures to staff his agencies, Bartiromo asks why Comey is still around [note, I bet in Hope Hicks’ several days of interviews, they asked her if these questions were planted]. Given public reports, Trump may have already been thinking about firing Comey, though Steve Bannon, Reince Priebus, and Don McGahn staved off the firing for weeks.

TRUMP:  I wish it would be explained better, the obstructionist nature, though, because a lot of times I’ll say why doesn’t so and so have people under him or her?

The reason is because we can’t get them approved.

BARTIROMO:  Well, people are still wondering, though, they’re scratching their heads, right, so many Obama-era staffers are still here.

For example, was it a mistake not to ask Jim Comey to step down from the FBI at the outset of your presidency?

Is it too late now to ask him to step down?

TRUMP:  No, it’s not too late, but, you know, I have confidence in him.  We’ll see what happens.  You know, it’s going to be interesting.

On the same day he had asked Comey to publicly state he wasn’t being interviewed, Trump said he still had confidence in Comey, even while suggesting a lot of other people were angling for the job (something he had also said in an earlier exchange with Comey).  Trump immediately pivoted to claiming Comey had kept Hillary from being charged.

TRUMP: But, you know, we have to just — look, I have so many people that want to come into this administration.  They’re so excited about this administration and what’s happening — bankers, law enforcement — everybody wants to come into this administration.  Don’t forget, when Jim Comey came out, he saved Hillary Clinton.  People don’t realize that.  He saved her life, because — I call it Comey [one].  And I joke about it a little bit.

When he was reading those charges, she was guilty on every charge.  And then he said, she was essentially OK.  But he — she wasn’t OK, because she was guilty on every charge.

And then you had two and then you had three.

But Hillary Clinton won — or Comey won.  She was guilty on every charge.

BARTIROMO:  Yes.

TRUMP:  So Director Comey…

BARTIROMO:  Well, that’s (INAUDIBLE)…

TRUMP:  No, I’m just saying…

BARTIROMO:  (INAUDIBLE)?

TRUMP:  Well, because I want to give everybody a good, fair chance.  Director Comey was very, very good to Hillary Clinton, that I can tell you.  If he weren’t, she would be, right now, going to trial.

From there, Bartiromo asks Trump why President Obama had changed the rules on sharing EO 12333 data. Trump suggests it is so his administration could be spied on, using the Susan Rice unmasking pseudo scandal as shorthand for spying on his team.

BARTIROMO:  Mr. President, just a final question for you.

In the last weeks of the Obama presidency, he changed all the rules in terms of the intelligence agencies, allowing them to share raw data.

TRUMP:  Terrible.

BARTIROMO:  Why do you think he did this?

TRUMP:  Well, I’m going to let you figure that one out.  But it’s so obvious.  When you look at Susan Rice and what’s going on, and so many people are coming up to me and apologizing now.  They’re saying you know, you were right when you said that.

Perhaps I didn’t know how right I was, because nobody knew the extent of it.

Undoubtedly, Mueller wants to know whether these comments relate to his comments to Comey (and, as I suggested, Hope Hicks may have helped elucidate that). The invocation of Hillary sets up one rationale for firing Comey, but one that contradicts with the official reason.

But the conversation also reflects Trump’s consistent panic that his actions (and those of his aides) will be captured by wiretaps.

May 3, 2017: What did you think and do about Mr. Comey’s May 3, 2017, testimony?

On May 3, Comey testified to the Senate Judiciary Committee. It covered leaks (including whether he had ever authorized any, a question implicated in the Andrew McCabe firing), and the hacked email raising questions about whether Lynch could investigate Hillary. Comey described his actions in the Hillary investigation at length. This testimony would be cited by Rod Rosenstein in his letter supporting the firing of Comey. In addition, there were a number of questions about the Russia investigation, including questions focused on Trump, that would have driven Trump nuts.

Along with getting a reaction to the differences between what Comey said in testimony and Trump’s own version (which by this point he had shared several times), Mueller likely wants to know what Trump thinks of Comey’s claim that FBI treated the Russian investigation just like the Hillary one.

With respect to the Russian investigation, we treated it like we did with the Clinton investigation. We didn’t say a word about it until months into it and then the only thing we’ve confirmed so far about this is the same thing with the Clinton investigation. That we are investigating. And I would expect, we’re not going to say another peep about it until we’re done. And I don’t know what will be said when we’re done, but that’s the way we handled the Clinton investigation as well.

In a series of questions that were likely developed in conjunction with Trump, Lindsey Graham asked whether Comey stood by his earlier claim that there was an active investigation.

GRAHAM: Did you ever talk to Sally Yates about her concerns about General Flynn being compromised?

COMEY: I did, I don’t whether I can talk about it in this forum. But the answer is yes.

GRAHAM: That she had concerns about General Flynn and she expressed those concerns to you?

COMEY: Correct.

GRAHAM: We’ll talk about that later. Do you stand by your house testimony of March 20 that there was no surveillance of the Trump campaign that you’re aware of?

COMEY: Correct.

GRAHAM: You would know about it if they were, is that correct?

COMEY: I think so, yes.

GRAHAM: OK, Carter Page; was there a FISA warrant issued regarding Carter Page’s activity with the Russians.

COMEY: I can’t answer that here.

GRAHAM: Did you consider Carter page a agent of the campaign?

COMEY: Same answer, I can’t answer that here.

GRAHAM: OK. Do you stand by your testimony that there is an active investigation counterintelligence investigation regarding Trump campaign individuals in the Russian government as to whether not to collaborate? You said that in March…

COMEY: To see if there was any coordination between the Russian effort and peoples…

GRAHAM: Is that still going on?

COMEY: Yes.

GRAHAM: OK. So nothing’s changed. You stand by those two statements?

Curiously (not least because of certain investigative dates), Sheldon Whitehouse asked some pointed questions about whether Comey could reveal if an investigation was being starved by inaction.

WHITEHOUSE: Let’s say you’ve got a hypothetically, a RICO investigation and it has to go through procedures within the department necessary to allow a RICO investigation proceed if none of those have ever been invoked or implicated that would send a signal that maybe not much effort has been dedicated to it.

Would that be a legitimate question to ask? Have these — again, you’d have to know that it was a RICO investigation. But assuming that we knew that that was the case with those staging elements as an investigation moves forward and the internal department approvals be appropriate for us to ask about and you to answer about?

COMEY: Yes, that’s a harder question. I’m not sure it would be appropriate to answer it because it would give away what we were looking at potentially.

WHITEHOUSE: Would it be appropriate to ask if — whether any — any witnesses have been interviewed or whether any documents have been obtained pursuant to the investigation?

Richard Blumenthal asked Comey whether he could rule Trump in or out as a target of the investigation and specifically within that context, suggested appointing a special counsel (Patrick Leahy had already made the suggestion for a special counsel).

BLUMENTHAL: Have you — have you ruled out the president of the United States?

COMEY: I don’t — I don’t want people to over interpret this answer, I’m not going to comment on anyone in particular, because that puts me down a slope of — because if I say no to that then I have to answer succeeding questions. So what we’ve done is brief the chair and ranking on who the U.S. persons are that we’ve opened investigations on. And that’s — that’s as far as we’re going to go, at this point.

BLUMENTHAL: But as a former prosecutor, you know that when there’s an investigation into several potentially culpable individuals, the evidence from those individuals and the investigation can lead to others, correct?

COMEY: Correct. We’re always open-minded about — and we follow the evidence wherever it takes us.

BLUMENTHAL: So potentially, the president of the United States could be a target of your ongoing investigation into the Trump campaign’s involvement with Russian interference in our election, correct?

COMEY: I just worry — I don’t want to answer that — that — that seems to be unfair speculation. We will follow the evidence, we’ll try and find as much as we can and we’ll follow the evidence wherever it leads.

BLUMENTHAL: Wouldn’t this situation be ideal for the appointment of a special prosecutor, an independent counsel, in light of the fact that the attorney general has recused himself and, so far as your answers indicate today, no one has been ruled out publicly in your ongoing investigation. I understand the reasons that you want to avoid ruling out anyone publicly. But for exactly that reason, because of the appearance of a potential conflict of interest, isn’t this situation absolutely crying out for a special prosecutor?

Chuck Grassley asked Comey the first questions about what would become the year-long focus on Christopher Steele’s involvement in the FISA application on Carter Page.

GRASSLEY: On — on March 6, I wrote to you asking about the FBI’s relationship with the author of the trip — Trump-Russia dossier Christopher Steele. Most of these questions have not been answered, so I’m going to ask them now. Prior to the bureau launching the investigation of alleged ties between the Trump campaign and Russia, did anyone from the FBI have interactions with Mr. Steele regarding the issue?

COMEY: That’s not a question that I can answer in this forum. As you know, I — I briefed you privately on this and if there’s more that’s necessary then I’d be happy to do it privately.

GRASSLEY: Have you ever represented to a judge that the FBI had interaction with Mr. Steele whether by name or not regarding alleged ties between the Trump campaign and Russia prior to the Bureau launching its investigation of the matter?

COMEY: I have to give you the same answer Mr. Chairman.

In a second round, Whitehouse asked about a Trump tweet suggesting Comey had given Hillary a free pass.

WHITEHOUSE: Thank you.

A couple of quick matters, for starters. Did you give Hillary Clinton quote, “a free pass for many bad deeds?” There was a tweet to that effect from the president.

COMEY: Oh, no, not — that was not my intention, certainly.

WHITEHOUSE: Well, did you give her a free pass for many bad deeds, whatever your intention may have been?

COMEY: We conducted a competent, honest and independent investigation, closed it while offering transparency to the American people. I believed what I said, there was not a prosecutable case, there.

Al Franken asked Comey whether the investigation might access Trump’s tax returns.

FRANKEN: I just want to clarify something — some of the answers that you gave me for example in response to director — I asked you would President Trump’s tax returns be material to the — such an investigation — the Russian investigation and does the investigation have access to President Trump’s tax returns and some other questions you answered I can’t say. And I’d like to get a clarification on that. Is it that you cant say or that you can’t say in this setting?

COMEY: That I won’t answer questions about the contours of the investigation. As I sit here I don’t know whether I would do it in a closed setting either. But for sure — I don’t want to begin answering questions about what we’re looking at and how.

Update: Contemporaneous reporting makes it clear that Trump was particularly irked by Comey’s admission that “It makes me mildly nauseous to think that we might have had some impact on the election,” as that diminished Trump’s win. (h/t TC)

May 9, 2017: Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?

The May 3 hearing is reportedly the precipitating event for Trump heading to Bedminster with Ivanka, Jared, and Stephen Miller on May 4 and deciding to fire Comey. Trump had Miller draft a letter explaining the firing, which Don McGahn would significantly edit when he saw it on May 8. McGahn also got Sessions and Rosenstein, who were peeved about different aspects of the hearing (those focused on Comey’s actions with regards to Hillary), to write letters supporting Comey’s firing.

Given that Mueller has the original draft of the firing letter and testimony from McGahn, Rosenstein, and Sessions, this question will largely allow Trump to refute evidence Mueller has already confirmed.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

The Quest: Trump Learns of the Investigation (Part Four)

In this series, I’m analyzing the Mueller questions as understood by Jay Sekulow and leaked to the NYT to show how they set up a more damning investigative framework than commentary has reflected.

This post laid out how the Agalarovs had been cultivating Trump for years, in part by dangling real estate deals and close ties with Vladimir Putin. This post shows how during the election, the Russians and Trump danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in. This post laid out how, during the transition period, Trump’s team took a series of actions they attempted to keep secret that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted.

This post will look at Mueller’s reported investigative interest in Trump’s reaction to discovering the “Deep State” was investigating the election year operation, including the actions his team had tried to keep secret. Note, I have put all of the events leading up to Flynn’s firing here (not least because I think the firing itself often gets treated improperly as obstruction), though just some of the Jim Comey events. I will repeat the timeline of events in the next post, which overlaps temporally, for clarity.

January 6, 2017: What was your opinion of Mr. Comey during the transition?

This is a baseline question for Trump’s firing of Jim Comey. At a minimum, Trump would need to explain his decision to keep Comey. It also provides Trump an opportunity to rebut Comey’s claim that, in the January 6 meeting, Trump told Comey he:

had conducted myself honorably and had a great reputation. He said I was repeatedly put in impossible positions. He said you saved her and then they hated you for what you did later, but what coice did you have? He said he thought very highly of me and looked forward to working with me, saying he hoped I planned to stay on. I assured him I intended to stay. He said good.

January 6, 2017: What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?

One key detail Comey (and the other representatives of the intelligence community) would have detailed for Trump that day is not just that Russia interfered in the election, but their basis for concluding that “We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances,” a conclusion Republicans have objected to repeatedly.

In his book, but not his memos, Comey describes that immediately after the briefing, Trump first asked for assurances Russian interference hadn’t affected the outcome and then, with his team, started strategizing how to spin the conclusions so as to dismiss any outcome on the election.

‘I recall Trump listening without interrupting, and asking only one question, which was really more of a statement: “But you found there was no impact on the result, right?” The intelligence team said they had done no such analysis.

‘What I found telling was what Trump and his team didn’t ask. They were about to lead a country that had been attacked by a foreign adversary, yet they had no questions about what the future Russian threat might be.’

Instead, Trump and his team immediately started discussing how they would “spin” the information on Russia as if the intelligence officers were not in the room. ‘They were keen to emphasize that there was no impact on the vote, meaning that the Russians hadn’t elected Trump.’

This reflects the same concern expressed in the KT McFarland email from just days earlier (which probably reflected detailed Trump involvement) that acknowledging Russian involvement would “discredit[] Trump’s victory by saying it was due to Russian interference.”

January 6, 2017: What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?

In its analysis of the questions, NYT takes this question to be exclusively about Comey’s briefing on the Steele dossier, and it may be. But in Obama’s January 5 briefing covering the same issues, according to Susan Rice, Comey and others discussed concerns about sharing classified information with the Trump team, especially Mike Flynn.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

Even though concerns about Flynn came up in that Obama briefing, the FBI counterintelligence investigation did not. It’s possible that this passage from Comey’s memo, which describes the main part of the briefing and not that part dedicated to the Steele dossier, pertained to the counterintelligence concerns about Flynn,which Obama had already shared with Trump the previous fall; such a warning may or may not have included Flynn’s conversations with Sergey Kislyak.

If Comey briefed anything to do with Flynn, it would significantly change the importance of subsequent events.

As for the Steele dossier conversation, which surely is included with this question, Comey has claimed that Trump first tried to convince Comey is wasn’t true that he would need to “go there” to sleeping with prostitutes, “there were never prostitutes,” even though Trump’s reference to “the women who had falsely accused him of grabbing or touching them” actually undermined his defense.

Comey has also claimed that Trump seemed relieved when he said (in the context of the Steele briefing), that the FBI was not investigating him. Importantly, this took place after Comey had said he didn’t want people to claim the information came from the FBI.

I said media like CNN had them and were looking for a news hook. I said it was important that we not give them an excuse to write that the FBI has the material or [redacted] and that we were keeping it very close-hold.

[snip]

I responded that we were not investigating him and the stuff might be totally made up but that it was being said out of Russia and our job was to protect the President from efforts to coerce him. I said we try to understand what the Russians are doing and what they might do. I added that I also wanted him to know this in case it came out in the media.

He said he was grateful for the conversation, said more nice things about me and how he looks forward to working with me and we departed the room.

January 12, 2017: What was your reaction to news reports on Jan. 12, 2017?

On January 12, in the context of a discussion of Trump aiming for better relationships with Putin, David Ignatius reported revealed that Flynn had called Sergey Kislyak “several times,” asking whether but not asserting that it might be an attempt to undercut sanctions.

Trump said Wednesday that his relationship with President Vladimir Putin is “an asset, not a liability.” Fair enough, but until he’s president, Trump needs to let Obama manage U.S.-Russia policy.

Retired Lt. Gen. Michael T. Flynn, Trump’s choice for national security adviser, cultivates close Russian contacts. He has appeared on Russia Today and received a speaking fee from the cable network, which was described in last week’s unclassified intelligence briefing on Russian hacking as “the Kremlin’s principal international propaganda outlet.”

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.

The report neither revealed the FBI had intercepts of the conversation nor confirmed an investigation. But it may have alerted Trump that the actions he was probably a party to weeks earlier might have legal consequences.

January 24: FBI interviews Mike Flynn and he lies about talking about sanctions

January 26 and 27, 2017: What did you know about Sally Yates’s meetings about Mr. Flynn?

According to Sally Yates’ public testimony, she met with Don McGahn to discuss Mike Flynn’s interview with the FBI on January 26, 2017. She framed it by describing that DOJ knew Mike Pence’s January 15 comments about Flynn’s conversations with Kislyak were not correct.

YATES: So I told them again that there were a number of press accounts of statements that had been made by the vice president and other high-ranking White House officials about General Flynn’s conduct that we knew to be untrue. And we told them how we knew that this – how we had this information, how we had acquired it, and how we knew that it was untrue.

And we walked the White House Counsel who also had an associate there with him through General Flynn’s underlying conduct, the contents of which I obviously cannot go through with you today because it’s classified. But we took him through in a fair amount of detail of the underlying conduct, what General Flynn had done, and then we walked through the various press accounts and how it had been falsely reported.

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February [sic] 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.

And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.

We told him the third reason was — is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.

I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action, and that was the first meeting.

Then there was a follow-up meeting on January 27. Among the five topics discussed, McGahn asked if Flynn was in legal jeopardy, and if “they” (presumably meaning he and the Associate WHCO in the meeting) could see the underlying intelligence.

WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?

YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.

And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically,

[snip]

And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

By the time the materials for review became available on January 30, Yates had been fired, nominally because she refused to defend Trump’s Muslim ban.

The HPSCI report (particularly content newly unredacted on May 4; see PDF 63 ff) reveals there were several concerns about Flynn’s contradictory comments (which Republicans bizarrely present as conflict). First, there had been a counterintelligence investigation into Flynn still active in December 2016, though FBI may have been moving to shut it down. The interview may have been sparked by Logan Act concerns, or it may have been Flynn’s public comments to Pence (the Republican report ignores that this would pose a blackmail problem). Comey told HPSCI that the agents found Flynn — a lifetime intelligence officer — exhibited no physical signs of deceit, but made it clear the Agents did find his statements plainly conflicted with known facts.

When Mueller asks the President what he knew about the meetings, he likely wants to know (and already has answers from McGahn and likely the Associate) whether they told him about the Flynn interview, if so when, and in how much detail. If they did tell Trump, Mueller may also want to know about whether McGahn’s questions on the 27th (including whether Flynn was in legal jeopardy) reflect Trump’s own questions.

Obviously, one other subtext of this question pertains to whether Yates’ pursuit of Flynn contributed to her firing.

The other critical point about whether and what Trump knew of Yates’ meetings with McGahn: on January 27, he had his first creepy meeting with Jim Comey. Then, on January 28, he had his first phone call with Vladimir Putin, a call Flynn attended.

January 27, 2017: What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?

At lunchtime on January 27 — so after McGahn had called Yates to set up a follow-up meeting and indicated concerns about Flynn’s legal jeopardy, but before that meeting happened — Trump called Comey and set up dinner that day. According to Comey, several minor things that would recur later came up, including questions about Andrew McCabe and Trump’s exposition of the Hillary email investigation.

In addition, five other key things happened at the meeting.

He invited the FBI to investigate “the Golden Showers” thing to prove it was a lie:

At this point, he turned to what he called “the golden showers thing”

[snip]

He said he had spoken to people who had been on the Miss Universe trip with him and they had reminded him that he didn’t stay over night in Russia for that. [this is not true]

[snip]

He said he thought maybe he should ask me to investigate the whole thing to prove it was a lie. I did not ask any questions. I replied that it was up to him, but I wouldn’t want to create a narrative that we were investigating him, because we were not and I worried such a thing would be misconstrued. Ii also said that is very difficult to disprove a lie. He said ‘maybe you’re right,’ but several times asked me to think about it and said he would also think about it.

He asked if the FBI leaks:

He asked whether the FBI leaks and I answered that of course in an organization of 36,000 we were going to have some of that, but I said I think the FBI leaks far less than people often say.

He asked if Comey wanted to keep his job, even though they had discussed it twice before:

He touched on my future at various points. The first time he asked “so what do you want to do,” explaining that lots of people wanted my job (“about 20 people”), that he thought very highly of me, but he would understand if I wanted to walk away given all I had been through, although he thought that would be bad for me personally because it would look like I had done something wrong, that he of course can make a change at FBI if he wants, but he wants to know what I think. There was no acknowledgement by him (or me) that we had already talked about this twice.

I responded by saying that he could fire me any time he wished, but that I wanted to stay and do a job I love to and think I am doing well.

He asked for loyalty:

He replied that he needed loyalty and expected loyalty.

[snip — this comes after the request for an investigation]

He then returned to loyalty, saying “I need loyalty.” I replied that he would always get honesty from me. He paused and said that’s what he wants, “honest loyalty.” I replied, “you will get that from me.”

He claimed to suspect Mike Flynn’s judgment because he had delayed in telling Trump about Putin’s congratulatory phone call:

He then went on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. (“This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.” I did not comment at any point during this topic and there was no mention or acknowledgement of any FBI interest in or contact with General Flynn.

Trump would be hard pressed to argue the meeting was unrelated to the Yates meeting and the FBI investigation. Which would mean one thing Trump did — in a meeting where he also lied to claim he hadn’t had sex in Moscow — was to disclaim prior knowledge of the Putin meeting the next day (even while emphasizing the import of it).

Of course, the claim he thought Flynn had poor judgment didn’t lead him to keep Flynn out of the phone call with Putin the next day.

January 28: Trump, Pence, Flynn, Priebus, Bannon, and Spicer phone Vladimir Putin

February 9, 2017: What was your reaction to news reports on Feb. 8-9, 2017?

According to Jim Comey, he went for a meet and greet with Reince Priebus on February 8. While he was waiting, Mike Flynn sat down to chat with him though didn’t mention the FBI interview. Then, after clarifying that the conversation with Comey was a “private conversation,” he asked if there was a FISA order on Flynn. Comey appears to have answered in the negative. Priebus then took Comey in to meet with Trump, who defended his answer in an interview with Bill O’Reilly released on February 6) that “There are a lot of killers. You think our country’s so innocent?” After Comey criticized that part of the answer, Trump, “clearly noticed I had directly criticized him.” (h/t TC for reminding me to add this.) Since Yates had told McGahn how they knew Flynn had lied, Priebus’ question about a FISA order suggests the White House was trying to find out whether the collection was just incidental, or whether both sides of all Flynn’s conversations would have been picked up.

On February 9, the WaPo reported that Flynn had discussed sanctions, in spite of public denials from the White House that he had.

National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.

Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.

Flynn on Wednesday [February 8] denied that he had discussed sanctions with Kislyak. Asked in an interview whether he had ever done so, he twice said, “No.”

On Thursday [February 9], Flynn, through his spokesman, backed away from the denial. The spokesman said Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

Officials said this week that the FBI is continuing to examine Flynn’s communications with Kislyak. Several officials emphasized that while sanctions were discussed, they did not see evidence that Flynn had an intent to convey an explicit promise to take action after the inauguration.

In addition to tracking Flynn’s changing claims, it also noted that on January 15, Mike Pence had denied both any discussion of sanctions in the December call and discussions with Russia during the campaign.

On February 10, Trump was asked by reporters about Flynn’s answer. Trump played dumb: “I don’t know about that. I haven’t seen it. What report is that? I haven’t seen that. I’ll look into that.” (h/t TC)

Presumably, Mueller wants to know how surprised Trump was about this story (which actually builds on whether McGahn told him about the Yates conversation). But given Trump’s earlier question about FBI leaks, I also wonder whether Mueller knows that Trump knew this was coming. That is, some of the leaks may have come from closer to the White House, as an excuse to fire Flynn, using the same emphasis that the story (and Yates) had: the claim that Flynn had lied to Pence.

Except Mueller probably knows that the effort to soothe Russia’s concerns about sanctions made in December were a surprise to few top aides in the White House, least of all Trump.

February 13, 2017: How was the decision made to fire Mr. Flynn on Feb. 13, 2017?

We have remarkably little reporting on how and why Flynn was actually fired — mostly just the cover story that it was because Flynn lied to Pence — though after Flynn flipped last year, Trump newly claimed he had to fire Flynn because he lied to the FBI (something that, if the claims about the original 302 are correct, FBI hadn’t concluded at the time Trump fired him).

The thing is, neither story makes sense. It’s virtually certain that many people in the White House knew what Flynn had said to Sergey Kislyak back in December 2016; Tom Bossert was included in KT McFarland’s emails to Mike Flynn, and he sent it to Reince Priebus, Stephen Bannon, Sean Spicer, and at least two other people. All of those people, save Bossert, are known to have provided testimony to Mueller’s team.

But it also makes little sense to argue that Trump had to fire Flynn because he lied. If so, he would have done so either immediately, before the Putin meeting, or much later, after FBI actually came to the conclusion he had lied.

One logical explanation is that Flynn lied because he was told to lie, in an effort to continue to hide what the Trump Administration was doing in the transition period to pay off its debts to Russia. But faced with the prospect that the FBI would continue to investigate Flynn, Trump cut him out in an effort to end the investigation. Which explains why things with Comey proceeded the way they did.

Update: This post has been updated with new details surrounding February 8-10 and newly unredacted details from the HPSCI report.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

The Significance of the January 12 Reauthorization of Carter Page’s FISA Order

I’d like to riff on a small but significant detail revealed in the Schiff memo. This paragraph adds detail to the same general timeframe for the orders obtained against Page laid out in the Nunes memo: the first application approved on October 21, with reauthorizations in early January, early April, and late June.

Republican judges approved the Carter Page FISA orders

The passage also narrows down the judges who approved the orders, necessarily including FISC’s sole Reagan appointee Raymond Dearie and FISC’s sole Poppy appointee Anne Conway, plus two of the following W appointees:

 

  • Rosemary Collyer (worst FISC judge ever)
  • Claire Eagan (OK, she may be worse than Collyer)
  • Robert Kugler
  • Michael Mosman (a good one)
  • Dennis Saylor (also good)

I won’t dwell on this here, but it means the conspiracy theory that Obama appointee Rudolph Contreras approved the order, and because of that recused in the Flynn case, is false.

The first reapplication came days after the dossier and a second Isikoff article came out

Back to the timing. The footnotes provide the dates for two of the other applications: June 29 (in footnotes 12, 14, 15, 16) and January 12 (footnote 31), meaning the third must date between April 1 and 12 (the latter date being 90 days after the second application).

As I laid out here, the timing of that second application is critical to the dispute about whether FBI handled Michael Isikoff’s September 23 article appropriately, because it places the reapplication either before or after two key events: the publication of the Steele dossier on January 10 and Isikoff’s publication of this story on January 11. Isikoff’s January article included a link back to his earlier piece, making it fairly clear that Steele had been his source for the earlier article. The publication of that second Isikoff piece should have tipped off the FBI that the earlier article had been based on Steele (not least because the second Isikoff piece IDs Steele as an “FBI asset,” which surely got the Bureau’s attention).

FBI didn’t respond to Isikoff in time for the second application

Now, you could say that FBI should have immediately reacted to the Isikoff piece by alerting the FISC, but that’s suggesting bureaucracies work far faster than they do. Moreover, the application would not have been drafted on January 12. Except in emergency, the FISC requires a week notice on applications. That says the original application would have been submitted on or before January 5, before the dossier and second Isikoff piece.

FBI appears to have dealt with the Isikoff article interestingly. The body of the Schiff memo explains that Isikoff’s article, along with another that might be either Josh Rogin’s or Julia Ioffe’s articles from the time period, both of which cite Isikoff (Rogin’s is the only one of the three that gets denials from Page directly), were mentioned to show that Page was denying his Moscow meetings were significant.

That redacted sentence must refer to the January 12 application, because that footnote is the only footnote citing that application and nothing else in the paragraph discusses it.

An earlier passage describes the first notice to FISC, in that same January 12 application, “that Steele told the FBI that he made his unauthorized media disclosure because of his frustration at Director Comey’s public announcement shortly before the election that the FBI reopened its investigation into candidate Clinton’s email use.”

It’s possible that redacted sentence distinguishes what Grassley and Graham did in their referral of Steele. The first application stated that, “The FBI does not believe that [Steele] directly provided this information to the press.” Whereas the January reapplication stated in a footnote that the FBI, “did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.” Within a day or so, the FBI should have realized that was not the case.

So it’s true FBI was denying that the September Isikoff article was based off Steele reporting after the time they should have known it was, but that can probably best be explained by the application timelines and the lassitude of bureaucracy.

The submission of the preliminary second application likely coincides with the Obama briefing on the Russian threat

As noted above, the second application would have been submitted a full week earlier than it otherwise would have had to have been given the 90-day term on FISA orders targeting Americans. That means the preliminary application was probably submitted by January 5. Not only would that have been too early to incorporate the response to the dossier, most notably the second Isikoff piece, but it even preceded Trump’s briefing on the Russian tampering, which took place January 6.

It’s also interesting timing for another reason: it means FBI may have submitted its reapplication targeting Page on the same day that Jim Comey and Sally Yates briefed Obama, Susan Rice, and Joe Biden, in part, on the fact that Putin’s mild response to the election hack sanctions rolled out in late December arose in response to requests from Mike Flynn to Sergey Kislyak. As I addressed here, that briefing has become a subject of controversy again, as Chuck Grassley and Lindsey Graham tried to suggest that the Steele dossier may have contributed to the investigation of Flynn.

But contrary to what the Republican Senators claimed in their letter to Rice on the subject, Rice claims the Steele dossier and the counterintelligence investigation never came up.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn. In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject. In the conversation Ambassador Rice documented, there was no discussion of Christopher Steele or the Steele dossier, contrary to the suggestion in your letter.

Given the importance and sensitivity of the subject matter, and upon the advice of the White House Counsel’s Office, Ambassador Rice created a permanent record of the discussion. Ambassador Rice memorialized the discussion on January 20, because that was the first opportunity she had to do so, given the particularly intense responsibilities of the National Security Advisor during the remaining days of the Administration and transition. Ambassador Rice memorialized the discussion in an email sent to herself during the morning of January 20, 2017. The time stamp reflected on the email is not accurate, as Ambassador Rice departed the White House shortly before noon on January 20. While serving as National Security Advisor, Ambassador Rice was not briefed on the existence of any FBI investigation into allegations of collusion between Mr. Trump’s associates and Russia, and she later learned of the fact of this investigation from Director Comey’s subsequent public testimony. Ambassador Rice was not informed of any FISA applications sought by the FBI in its investigation, and she only learned of them from press reports after leaving office.

Grassley and Graham appear to have confused the IC investigation with the counterintelligence investigation, only the latter of which incorporated the Steele dossier.

In any case, one reason the apparent coincidence between the January 5 briefing and the reapplication process is important is it suggests it was also pushed through a week early to provide room for error with the inauguration. If a FISA order on January 19 goes awry, it might not get approved under President Trump. But if anything happened to that application submitted around January 5, it’d be approved with plenty of time before the new Administration took over.

Intelligence from Page’s FISA collection helped support the government’s high confidence that Russia attempted to influence the election

Here’s one of the most interesting details in the Schiff memo, however. This passage describes that the wiretap on Page obtained important intelligence, though it won’t tell us what it is.

That redacted footnote, number 14, describes that the redacted intelligence is part of what gave the Intelligence Community “high confidence”

Admittedly, this footnote, with its citation to the October and June applications, is uncertain on this point. But for the wiretap on Page to have supported the December ICA assessment of the Russian tampering, then it would have had to have involved collection from that first period.

If that’s right, then it suggests the reason the Obama Administration may have applied for the order renewal early, the same day Comey and Yates briefed Obama on the ICA and Flynn, is because something from that order (possibly targeting Page’s December trip to Moscow) added to the IC’s certainty that the Russians had pulled off an election operation.

New Right Hook: Mike Flynn Lied When He Admitted to a Judge He Lied to the FBI

Apparently, the latest Grassley-Graham effort to spin a very understandable reaction to the discovery that the incoming National Security Advisor might be compromised by Russia — to have a meeting about whether that requires a change in the government’s investigative approach and then memorialize the meeting — as a Christopher Steele plots is not an isolated event. To accompany the Grassley-Graham effort to obscure, the right wing is now seeing a conspiracy, best captured in this Byron York piece with follow-ups elsewhere, in Mike Flynn’s guilty plea.

At issue is leaked March 2017 testimony from Jim Comey (in a piece complaining about the leak of Flynn’s FISA intercepts) that the FBI agents who interviewed Flynn on January 24, 2017 believed any inaccuracies in Flynn’s interview with the FBI were unintentional.

In March 2017, then-FBI Director James Comey briefed a number of Capitol Hill lawmakers on the Trump-Russia investigation.

[snip]

According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.

From that, York spins out a slew of laughable claims: Mike Flynn would have no reason to address the FBI amid swirling coverage of lies about Russian ties! The Deputy Attorney General “sends” FBI agents to conduct interviews! DOJ “effectively gave” Jim Comey authority to decide Hillary’s fate but then fired him for usurping that authority! They lead up to York’s theory that DOJ may have overridden the FBI agents in forcing Flynn to sign a plea admitting he made false statements.

It could be that the FBI agents who did the questioning were overruled by Justice Department officials who came up with theories like Flynn’s alleged violation of the Logan Act or his alleged vulnerability to blackmail.

[snip]

To some Republicans, it appears the Justice Department used a never-enforced law and a convoluted theory as a pretext to question Flynn — and then, when FBI questioners came away believing Flynn had not lied to them, forged ahead with a false-statements prosecution anyway. The Flynn matter is at the very heart of the Trump-Russia affair, and there is still a lot to learn about it.

Along the way, York feigns apparent ignorance of everything he knows about how criminal investigations work.

For example, York pretends to be unaware of all the pieces of evidence that have surfaced since that time that have changed the context of Flynn’s January 24 interview. There’s the weird dinner Trump invited Comey to on January 27, a day after Sally Yates first raised concerns about the interview with White House Counsel Don McGahn, where Trump told Comey “I need loyalty, I expect loyalty.” There’s the more troubling meeting on February 14, where (after asserting that Flynn had indeed lied to Mike Pence) Trump asked Comey to drop the Flynn investigation.

He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”

There’s the March 30 phone call in which the President complained about the “cloud” of the Russian investigation. There’s the April 11 phone call where the President complained about that “cloud” again, and asked for public exoneration. There’s the newly reported Don McGahn call following that conversation, to Dana Boente asking for public exoneration. There’s Comey’s May 9 firing, just in time for Trump to tell Russians on May 10 that firing that “nut job” relieved pressure on him. There’s the letter Trump drafted with Stephen Miller’s help that made it clear Comey was being fired because of the Russian investigation.

Already by the time of Comey’s firing, the White House claim that Mike Flynn got fired because he lied about his conversations to Sergey Kislyak to Mike Pence, was falling apart.

Then, in August, the Mueller team obtained the transition emails that transition lawyers had withheld from congressional requests (and therefore from Mueller), including those of Flynn himself, Jared Kushner, and KT McFarland. The transition would go on to squawk that these emails, which didn’t include Trump and dated to before Trump became President, were subject to executive privilege, alerting Mueller that the emails would have been withheld because the emails (some sent from Mar-A-Lago) reflected the involvement of Trump. Not to mention that the emails tied conversations about Russia to the “thrown election.”

Then there’s Jared Kushner’s interview with Mueller’s team in the weeks before Mike Flynn decided to plead guilty. At it, prosecutors asked Jared if he had any information that might exculpate Flynn.

One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

There were reports that Flynn felt like he had been sold out just before he flipped, and I would bet this is part of the reason why. In addition to instructions regarding the sanction calls with Kislyak, which were directed by KT McFarland, Flynn’s statement of offense describes someone we know to be Kushner directing Flynn to call countries, including Russia, to try to persuade them to avoid a vote on Israeli West Bank settlements.

On or about December 22, 2016, a very senior member of the Presidential Transition Team directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

Granted, Mueller’s team didn’t make the point of the lies as obvious as they did with the George Papadopoulos plea, where they made clear Papadopoulos lied to hide that he learned of the “dirt” on Hillary in the form of emails after he started on the campaign and whether he told the campaign about those emails (not to mention that he had contacts with Ivan Timofeev).

Mueller’s not telling us why Flynn’s lies came to have more significance as Mueller collected more and more evidence.

But what they make clear is that the significance of Flynn’s lies was not, as it first appeared, that he was trying to hide the subject of the calls from Mike Pence. I mean, maybe he did lie to Pence about those calls. But discussions about how to work with the Russians were not secret; they included at least Kushner, McFarland, Tom Bossert, Reince Priebus, Steve Bannon, and Sean Spicer. Some of those conversations happened with McFarland emailing while at Mar-A-Lago with the President-Elect.

So given the weight of the evidence collected since, Flynn’s lies now appear neither an effort to avoid incriminating himself on Logan Act charges, nor an effort to cover up a lie he told others in the White House, but the opposite. His lies appear to have hidden how broadly held the Russian discussions were within the transition team, not to mention that he was ordered to make the requests he did, possibly by people relaying orders from Trump, rather than doing them on his own.

That, by itself, doesn’t make the Flynn conversations (as distinct from the lies) illegal. But it means Trump went to great lengths to try to prevent Flynn from suffering any consequences for lying to hide the degree to which negotiations with Russia during the transition period were the official policy of the Trump team. And when Trump (or rather, his son-in-law) stopped protecting Flynn on that point, Flynn decided to admit to a judge that he had been knowingly lying.

It doesn’t take a conspiracy to realize that the FBI Agents who interviewed Flynn in January had none of the evidence since made available largely because Trump tried so hard to protect Flynn that he fired his FBI Director over it. It takes looking at the evidence, which makes it clear why those false statements looked very different as it became clear Flynn, after acting on Trump transition team instructions, got sold out as other senior Trump officials started trying to protect themselves.

Graham and Grassley Are Seeing Christopher Steele’s Ghost Where Mike Flynn Lurks

I get it. Trump is making us all crazy. But Chuck “Ethanol flipflop” Grassley and Lindsey “Trump’s best golfing buddy” Graham are going nuts not because of Trump but because of Christopher Steele. They’ve just written a letter to Susan Rice asking her why she emailed herself a letter, memorializing a January 5, 2017 meeting about the Russian hack, just before she left the White House.

In this email to yourself, you purport to document a meeting that had taken place more than two weeks before, on January 5, 2017. You wrote:

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.

That meeting reportedly included a discussion of the Steele dossier and the FBI’ s investigation of its claims. 1 Your email continued:

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book. From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

The next part of your email remains classified. After that, you wrote:

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.

It strikes us as odd that, among your activities in the final moments on the final day of the Obama administration, you would feel the need to send yourself such an unusual email purporting to document a conversation involving President Obama and his interactions with the FBI regarding the Trump/Russia investigation. In addition, despite your claim that President Obama repeatedly told Mr. Comey to proceed “by the book,” substantial questions have arisen about whether officials at the FBI, as well as at the Justice Department and the State Department, actually did proceed “by the book.”

It pains me that two top Republicans on the Senate Judiciary Committee are too fucking stupid to see that, in fact, the FBI proceeded quite cautiously with the Russia investigation, not inappropriately, as they suggest. It pains me still more that they think this is all about the dossier.

7. During the meeting, did Mr. Comey or Ms. Yates mention potential press coverage of the Steele dossier? If so, what did they say?

8. During the meeting, did Mr. Comey describe the status of the FBI’s relationship with Mr. Steele, or the basis for that status?

9. When and how did you first become-aware of the allegations made by Christopher Steele?

10. When and how did you first become aware that the Clinton Campaign and the Democratic National Committee funded Mr. Steele’s efforts?

It’s certainly possible, given what I laid out here, that DOJ was prepping the second FISA application for Carter Page (though if the reauthorization were dated January 9, the application would have had to have been submitted by January 2).

But there are other reasons why you’d expect to have this meeting on January 5 and why Rice would want a record of it for posterity (the meeting generally probably relates to this story about the way Obama protected information on the investigation in the last days of the Administration).

As reporting on the discovery of Mike Flynn’s conversations about Russian sanctions with Sergey Kislyak make clear, the conversation wasn’t discovered in real time. Rather, after Putin didn’t respond to the December sanctions against Russia, analysts sought to figure out why. Only after that did they discover the conversation and Flynn’s role in it.

For Yates and other officials, concerns about the communications peaked in the days after the Obama administration on Dec. 29 announced measures to punish Russia for what it said was the Kremlin’s interference in the election in an attempt to help Trump.

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, a retired Army lieutenant general with years of intelligence experience.

So it would be right around this time when law enforcement concerns about the incoming National Security Advisor would have arisen.

Update: This story confirms that the January 5 meeting was partly about the Flynn phone call.

On Jan. 5, FBI Director James B. Comey, CIA Director John Brennan and Director of National Intelligence James R. Clapper Jr. briefed Obama and a small group of his top White House advisers on the contents of a classified intelligence report showing that Russia intervened in the 2016 election to help Trump. That’s when White House officials learned that the FBI was investigating the Flynn-Kislyak calls. “The Flynn-Kislyak relationship was highlighted,” a former senior U.S. official said, adding that the bureau made clear “that there was an actual investigation” underway.

And, in a very significant way, the investigation did not proceed by the book, almost certainly because of Mike Flynn’s (and possibly even Jeff Sessions’) potential compromise. Back in March, Jim Comey admitted to Elise Stefanik that the FBI had delayed briefing Congress about the counterintelligence investigation into Trump because it had, in turn, delayed telling the Executive Branch until February.

Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.

Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.

Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch NSC before briefing Congress.

Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.

Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people the White House, and so couldn’t brief Congress without first having briefed the White House.

Which would suggest Mike Flynn may be a very central figure in this investigation.

Because the National Security Advisor was suspected of being compromised (and because the Attorney General had at least a conflict), the FBI couldn’t and didn’t proceed normally.

Plus, there’s one other issue about which Obama should have discussed normal procedure with Yates and Comey on January 5. Two days earlier, Loretta Lynch signed an order permitting, for the first time, the sharing of EO 12333 data in bulk. Among the first things I’m sure FBI would have asked for would have been EO 12333 data to support their Russian investigation. Yet doing so would expose Trump’s people. That’s all the more true given that the rules permit the retention of entirely domestic communications if they have significant counterintelligence value.

So one of the first things that would have happened, after signing data sharing rules the government had been working to implement since Stellar Wind, would have been the prospect that the very first Americans directly affected weren’t going to be some powerless Muslims or relatively powerless Chinese-Americans, but instead the President’s closest associates. Given what we’ve seen from the George Papadopoulos case, the FBI likely bent over backwards to insulate Trump aides (indeed, it’s hard to understand how they wouldn’t have known of Ivan Timofeev’s outreach to Papadopoulos before his interviews if they hadn’t).

Just before this meeting, FBI and DOJ had discovered that Trump’s most important national security aide had had surprising conversations with Russia. That clearly raised the prospect of necessary deviations from normal practices with regards to intelligence sharing.

Yet Grassley and Graham are seeing Christopher Steele’s ghost behind every single solitary action. Rather than the real challenges posed when top officials pose real counterintelligence concerns.

Update: Kathryn Ruemmler, representing Rice, pretty much confirms Grassley and Graham have gone on a wild Steele chase.

“There is nothing ‘unusual’ about the National Security Advisor memorializing an important discussion for the record,” Kathryn Ruemmler, a counsel for Rice, said in a statement. “The Obama White House was justifiably concerned about how comprehensive they should be in their briefings regarding Russia to members of the Trump transition team, particularly Lt. General Michael Flynn, given the concerning communications between him and Russian officials.”
Ruemmler added: “The discussion that Ambassador Rice documented did not involve the so-called Steele dossier. Any insinuation that Ambassador Rice’s actions in this matter were inappropriate is yet another attempt to distract and deflect from the importance of the ongoing investigations into Russian meddling in America’s democracy.”