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Hope Hicks Had More Awareness of the Flynn-Kislyak Aftermath Than the Mueller Report Discloses

As I noted in this post, even though the reporting on Hope Hicks’ testimony last week focused on the White House’s efforts to prevent her from fully testifying, she clearly did what she could to protect Trump even regarding his actions during the election and transition.

Which is why I want to look at two of her comments on matters more central to Mueller’s investigation — in this post, her elaboration of some comments she made about Mike Flynn.

Norm Eisen walked Hicks through something that shows up in this footnote of the Mueller Report:

Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10.

As I pointed out earlier, Eisen was hired to make sure questioning of witnesses is conducted professionally. It’s also worth noting that some House Judiciary Committee members and staffers have seen backup documents on the Mueller Report and the Hicks’ 302s were among the documents requested; both of these exchanges seem to reflect non-public information.

Eisen has Hicks describe how, even before the FBI interviewed Flynn, Trump had some concerns about him. At first, Hicks tries to spin Trump’s response to President Obama’s counterintelligence warning about Flynn as a reaction about the importance Obama assigned the warning, rather than anything having to do with Flynn himself.

Q Okay. Who was Michael Flynn?

A Michael Flynn was somebody that supported Mr. Trump. He was at one point in time considered a possible Vice Presidential candidate. And he became somebody who frequently traveled with the candidate and introduced him at rallies.

Q And are you aware that President Obama made comments about Mr. Flynn to the —

A Yes.

Q — the President-elect?

A Yes.

Q And how did the President-elect receive those comments?

Mr. Purpura. You can answer.

Ms. Hicks. I think he was a bit bewildered that, you know, of all the things that the two of them could have been discussing, that that was something that came up.

Mr. Eisen. And did you feel that President Obama’s comments sat with the President-elect more than you expected?

Ms. Hicks. I did, yes.

Mr. Eisen. Can you — go ahead. Sorry. I cut you off.

Ms. Hicks. That’s okay. I feel like it maybe tainted his view of General Flynn just a little bit.

Mr. Eisen. Did there come a time when the President formed the opinion — during the transition; I’m asking now about the transition — that Flynn had bad judgment?

White House lawyer Pat Philbin interrupts here to invite Hicks to read the footnote. (Note, I find it weird that Philbin did this, and not Hicks’ attorney Robert Trout.)

Mr. Philbin. Could you give us a moment there?

[Discussion off the record.]

Mr. Eisen. Can you read the question back, please? Okay. I’ve asked the court reporter to read the question back. [The reporter read back the record as requested.]

Ms. Hicks. Yes.

Mr. Eisen. Tell me about that.

Having just reviewed the footnote, Hicks nevertheless tries to minimize Trump’s concerns. So Philbin asks her to read the footnote again, which leads her to blame all this on Flynn’s spawn setting off a media frenzy that came to incorporate Flynn himself.

Ms. Hicks. I don’t think this was an overall characterization. I think that this was something where he felt like there were a few things that maybe caused him to think that he was capable of being a person who exercised bad judgment.

Mr. Eisen. What were those things?

Mr. Philbin. I’m sorry. Can I again suggest that, since the  question seemed to be based on footnote 155, page 32, Ms. Hicks have a chance to review that footnote?

Ms. Hicks. Yeah. I mean, primarily the comment by President Obama and the incident with General Flynn’s son concerning a fake news story and some of the tweets that were posted surrounding that.

BY MR. EISEN: Q Posted by?

A I believe they were posted by his son, and then it led to reporters also looking back at tweets that General Flynn had posted.

From here, Eisen moves on to the response to David Ignatius’ revelation that the Obama Administration had identified Flynn’s calls with Sergei Kislyak. He establishes that Hicks was on the email thread discussing the response, though she claims she wasn’t involved in the messaging surrounding it.

Q Do you recall David Ignatius writing a column about a Michael Flynn phone conversation with the Russian Ambassador during the transition?

A Yes.

Q And what do you remember about that?

A I don’t remember much about the substance of the column, to be honest, but I remember several email exchanges between the National Security Advisor, General Flynn at the time, and some of his national security staffers, a desire to perhaps have David Ignatius clarify some things in that column, and a failure to do so.

Q Were you involved in the clarification efforts?

A I was on the email thread, so I was following the discussion that ensued, but I was not involved in any kind of message development or outreach to Mr. Ignatius.

Note that the Mueller Report does not mention Hicks at all in its discussion of the Flynn-Kislyak response. In addition to KT McFarland (who called Ignatius to push back), it cites just Reince Priebus and Stephen Miller.

On January 12, 2017, a Washington Post columnist reported that Flynn and Kislyak communicated on the day the Obama Administration announced the Russia sanctions. 122 The column questioned whether Flynn had said something to “undercut the U.S. sanctions” and whether Flynn’s communications had violated the letter or spirit of the Logan Act. 123

President-Elect Trump called Priebus after the story was published and expressed anger about it. 124 Priebus recalled that the President-Elect asked, “What the hell is this all about?”125 Priebus called Flynn and told him that the President-Elect was angry about the reporting on Flynn’s conversations with Kislyak. 126 Flynn recalled that he felt a lot of pressure because Priebus had spoken to the “boss” and said Flynn needed to “kill the story.” 127 Flynn directed McFarland to call the Washington Post columnist and inform him that no discussion of sanctions had occurred. 128 McFarland recalled that Flynn said words to the effect of, “I want to kill the story.” 129 McFarland made the call as Flynn had requested although she knew she was providing false information, and the Washington Post updated the column to reflect that a “Trump official” had denied that Flynn and Kislyak discussed sanctions. 130

When Priebus and other incoming Administration officials questioned Flynn internally about the Washington Post column, Flynn maintained that he had not discussed sanctions with Kislyak.131 Flynn repeated that claim to Vice President-Elect Michael Pence and to incoming press secretary Sean Spicer. 132 In subsequent media interviews in mid-January, Pence, Priebus, and Spicer denied that Flynn and Kislyak had discussed sanctions, basing those denials on their conversations with Flynn. 133

13 1 Flynn 11117/17 302, at I, 8; Flynn 1/19/18 302, at 7; Priebus 10/13/17 302, at 7-8; S. Miller 8/3 I /17 3 02, at 8-1 I.

And that’s interesting because — as Eisen goes on to establish — Hope Hicks learned about the Flynn-Kislyak call at a minimum just days afterwards and (per her initial response) possibly the day it was made.

Q Did you have any advance knowledge of a phone call between Mr. Flynn and the Russian Ambassador that was the subject of this Ignatius reporting?

A I believe I was aware of it the day that it took place. I don’t know if it was before or after. But I recall being at Mar-a-Lago, and Flynn, I think — sorry. Off the record.

[Discussion off the record.]

Ms. Hicks. I think it was afterwards. Perhaps even several days afterwards.

Again, the Mueller Report describes a conversation Flynn had with Steve Bannon in the aftermath of the call, but not Hicks. The Report also mentions a discussion between Flynn and Trump, but Flynn doesn’t “have a specific recollection” of telling Trump about the call.

Flynn recalled discussing the sanctions issue with incoming Administration official Stephen Bannon the next day. 10° Flynn said that Bannon appeared to know about Flynn’s conversations with Kislyak, and he and Bannon agreed that they had “stopped the train on Russia’s response” to the sanctions. 101 On January 3, 2017, Flynn saw the President-Elect in person and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling the President-Elect about the substance of his calls with Kislyak. 102

And that’s important because, even before Eisen started pursuing these questions, Congressman Steve Cohen had gotten Hicks to admit (after first denying it) that she had knowledge of Russian sanctions that apparently included Trump.

Mr. Cohen. All right. So with all those caveats, before January 20, 2017, did you have any knowledge of any discussions of Russian sanctions?

Ms. Hicks. No.

Mr. Cohen. There was no discussions at all with Mr. Trump and you weren’t privy to them about Russian sanctions that we had issued? You’re sure of that? Think about it.

Ms. Hicks. I am thinking. Thank you. You know, there was — there was a phone call obviously between General Flynn and the Russian ambassador. There was news reports after that where it was unclear what was discussed, but that would have been the only context in which Russian sanctions were brought up in my capacity as communications adviser. [my emphasis]

When Eisen followed up about when Hicks learned that Flynn had lied about sanctions, Hicks claimed to have no recollection of learning that during the transition.

Mr. Eisen. When did you first learn that there was an issue about — if you learned — actually, let me rephrase that question. Did Mr. Flynn talk to you after the column was published about the column?

Mr. Philbin. And we’re still asking —

Mr. Eisen. We’re asking transition. We’re about to come to the post-transition period.

Ms. Hicks. I don’t recall any direct conversations with him, only the email thread that I described.

Mr. Eisen. During the transition, did you develop any additional information about the truth or falsity of anything in the Ignatius column?

Ms. Hicks. Not to my recollection.

Predictably, when Eisen asks about how Hicks came to learn more about this after the Transition, Philbin objected.

Mr. Eisen. What about after the transition?

Mr. Philbin. Objection.

Let me be clear: even with this questioning, the record on what Hicks knew when is inconclusive (and she appears to want to keep it that way). Which may be one reason why Hicks doesn’t appear in any of the discussions in the Mueller Report about this incident, because even Mueller doesn’t find her answers completely credible. As far as is known, she was first interviewed in December 2017, after Flynn’s guilty plea would have made it clear he had relayed some of this, though some FBI interviews that happened the summer before don’t appear in the Mueller Report. So at least given the public record, Hicks would have been able to temper her answers based off what Flynn was known to have admitted in his plea.

The public record certainly sustains a version akin to the public version about Priebus: that he knew about the call to Kislyak in real time, but only came to learn that they talked about sanctions after the FBI interview.

But Hicks’ answers and evasions — and her constant access to Trump — leave open another possibility.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Mueller’s Emphasis: Russia’s Greater than Two Efforts to Interfere in the Election

I want to parse a few things that Robert Mueller said in his press conference today.

First, he departed from the language of the report — which said the investigation “did not establish” a conspiracy — and said “there was insufficient evidence to charge a broader conspiracy.” The meaning is the same, but the emphasis is different. There was, obviously, a good deal of evidence that there was a conspiracy between Russia and people in Trump’s camp. Just not enough to charge.

That’s significant for two other reasons. He ended his statements by saying, “there were multiple, systematic efforts to interfere in our election.”

Now consider how he described Volume One, with that “insufficient evidence” language:

The first volume details numerous efforts emanating from Russia to influence the election. This volume includes a discussion of the trump campaign’s response to this activity, as well as our conclusion that there was insufficient evidence to charge a broader conspiracy.

Everything in Volume One is, by this description, an effort by Russia to influence the election. That means Mueller is treating the third part of the volume, describing the links between Russian-linked individuals and the Trump campaign, as “an effort emanating from Russia to influence the election.” (The report itself states that the office selected which outreach to include.) That appears to mean that Mueller considers the things included in the volume — including the multiple Trump Tower Moscow dangles, the Kislyak outreach (including to JD Gordan), Konstantin Kilimnik’s outreach, and even Dmitri Simes’ advice (the latter of which surprises me, somewhat) — as a third systematic effort to influence the election.

He’s not saying Trump’s people conspired in that effort (though especially with Page and Manafort, the report is inconclusive on their willingness to participate). But he is suggesting that that outreach constitutes further “systematic efforts to interfere in our election.”

Trump Claims He Was Joking When He Gave Russian Hackers a Wish List to Hack Hillary, But His Senior Aides Disagree

Like a child whose mother catches him saying something improper, Trump claimed — in his responses to Robert Mueller — that he was joking when he asked Russia to find Hillary’s missing 30,000 emails (a claim he repeated on March 2).

d. On July 27, 2016, you stated at a press conference: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

i. Why did you make that request of Russia, as opposed to any other country, entity, or individual?

ii. In advance of making that statement, what discussions, if any, did you have with anyone else about the substance of the statement?

iii. Were you told at any time before or after you made that statement that Russia was attempting to infiltrate or hack computer systems or email accounts of Hillary Clinton or her campaign? If yes, describe who provided this information, when, and what you were told.

Response to Question II, Part (d)

I made the statement quoted in Question II (d) in jest and sarcastically, as was apparent to any objective observer. The context of the statement is evident in the full reading or viewing of the July 27, 2016 press conference, and I refer you to the publicly available transcript and video of that press conference. I do not recall having any discussion about the substance of the statement in advance of the press conference. I do not recall being told during the campaign of any efforts by Russia to infiltrate or hack the computer systems or email accounts of Hillary Clinton or her campaign prior to them becoming the subject of media repo11ing and I have no recollection of any particular conversation in that regard.

Since Trump directed Mueller to a transcript of the press conference, I’ve put excerpts below. They’re a good reminder that at the same press conference where Trump asked Russia to find Hillary’s emails (and in seeming response to which, GRU officers targeted Hillary’s personal office just five hours later), Trump suggested any efforts to build a Trump Tower in Moscow were years in the past, not ongoing. After the press conference, Michael Cohen asked about that false denial, and Trump “told Cohen that Trump Tower Moscow was not a deal yet and said, ‘Why mention it if it is not a deal?'” He also said they’d consider recognizing Russia’s seizure of Crimea, which makes Konstantin Kilimnik’s travel — to Moscow the next day, then to New York for the August 2 meeting at which he and Paul Manafort discussed carving up Ukraine at the same meeting where they discussed how to win Michigan — all the more striking. Trump’s odd answer to whether his campaign “had any conversations with foreign leaders” to “hit the ground running” may reflect Mike Flynn’s meetings with Sergei Kislyak to do just that. In other words, even on top of that request of the Russians for more hacking, that press conference seems to tie to all the other things Trump was trying to hide when he obstructed Mueller’s investigation.

But it’s also worth looking at the abundant evidence that Trump wasn’t joking about his request that Russians find Hillary’s emails, particularly now that, with the superseding Julian Assange indictment, Trump’s DOJ considers the theft of documents in response to someone wishing they’ll be stolen tantamount to complicity in that theft.

Immediately after Trump asked Russia to find Hillary’s emails, the Mueller Report describes, he started asking Mike Flynn to go find them.

After candidate Trump stated on July 27, 2016, that he hoped Russia would “find the 30,000 emails that are missing,” Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails.264 Michael Flynn-who would later serve as National Security Advisor in the Trump Administration- recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.265

Heavily redacted passages also tie the request to Roger Stone to find out what WikiLeaks started around the same time.

Earlier the report quotes Gates describing how “frustrated” Trump was that the emails had not been found.

Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found. 196

A passage describing Trump’s motive for obstructing justice from Volume II refers back to these passages, describing Trump’s awareness of something about the hack-and-leak even while public reports tied the hacks to Russia, and in turn tying that to Roger Stone’s efforts to reach out to WikiLeaks.

Stone’s indictment describes how, days before that press conference, “a senior Trump Campaign official was directed” (probably a reference to Manafort’s request to Gates) to ask him to find out about upcoming releases, which is what led Stone to start pushing Jerome Corsi to find out what was coming.

12. After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

13. STONE also corresponded with associates about contacting Organization 1 in order to obtain additional emails damaging to the Clinton Campaign.

a. On or about July 25, 2016, STONE sent an email to Person 1 with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign.

b. On or about July 31, 2016, STONE emailed Person 1 with the subject line, “Call me MON.” The body of the email read in part that Person 1’s associate in the United Kingdom “should see [the head of Organization 1].”

c. On or about August 2, 2016, Person 1 emailed STONE. Person 1 wrote that he was currently in Europe and planned to return in or around mid-August. Person 1 stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.” The phrase “friend in embassy” referred to the head of Organization 1. Person 1 added in the same email, “Time to let more than [the Clinton Campaign chairman] to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about. Would not hurt to start suggesting HRC old, memory bad, has stroke – neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.”

Mike Flynn, Rick Gates, and Paul Manafort all testified how serious Trump was about finding these emails. And while Stone would probably lie about the content of his calls with the candidate, there are two witnesses (Michael Cohen and Gates) to Stone’s calls with him on the topic.

This was Trump’s wish list, just the same as WikiLeaks had a wish list that DOJ is now using to charge Julian Assange with Espionage.

If a wish list is enough to get Assange charged with conspiring to steal the documents on the wish list, then DOJ should treat Trump’s wish list for stolen documents with equal gravity.

Update: Harpie makes a good point in comments. The end of Trump’s “Russia, if you’re listening” comment is “That’ll be next.” That likely means he has already heard from Roger Stone, who had been told by James Rosen on July 25 that the Clinton Foundation emails would be next.


TRUMP: It’s just a total deflection, this whole thing with Russia. In fact, I saw her campaign manager I don’t know his title, Mook. I saw him on television and they asked him about Russia and the hacking.

By the way, they hacked — they probably have her 33,000 e-mails. I hope they do. They probably have her 33,000 e-mails that she lost and deleted because you’d see some beauties there. So let’s see.

But I watched this guy Mook and he talked about we think it was Russia that hacked. Now, first of all was what was said on those that’s so bad but he said I watched it. I think he was live. But he said we think it was Russia that hacked.

[snip]

TRUMP: I’m not going to tell Putin what to do. Why should I tell Putin what to do? He already did something today where he said don’t blame them, essentially, for your incompetence. Let me tell you, it’s not even about Russia or China or whoever it is that’s doing the hacking. It was about the things that were said in those e-mails. They were terrible things, talking about Jewish, talking about race, talking about atheist, trying to pin labels on people — what was said was a disgrace, and it was Debbie Wasserman Schultz, and believe me, as sure as you’re sitting there, Hillary Clinton knew about it. She knew everything.

[snip]

TRUMP: Why do I have to (ph) get involved with Putin? I have nothing to do with Putin. I’ve never spoken to him. I don’t know anything about him other than he will respect me. He doesn’t respect our president. And if it is Russia — which it’s probably not, nobody knows who it is — but if it is Russia, it’s really bad for a different reason, because it shows how little respect they have for our country, when they would hack into a major party and get everything. But it would be interesting to see — I will tell you this — Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing. I think you will probably be rewarded mightily by our press. Let’s see if that happens. That’ll be next. Yes, sir…

[snip]

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

QUESTION: (OFF-MIKE)

TRUMP: Of course I can. I told you, other than normal stuff — I buy a house if I sold it to a Russian. I have nothing to do with Russia. I said that Putin has much better leadership qualities than Obama, but who doesn’t know that?

[snip]

TRUMP: No, but they seem to be, if it’s Russians. I have no idea. It’s probably not Russia. Nobody knows if it’s Russia. You know the sad thing is? That with the technology and the genius we have in this country, not in government unfortunately, but with the genius we have in government, we don’t even know who took the Democratic National Committee e-mails. We don’t even know who it is.

I heard this morning, one report said they don’t think it’s Russia, they think it might be China. Another report said it might be just a hacker, some guy with a 200 I.Q. that can’t get up in the morning, OK? Nobody knows. Honestly they have no idea if it’s Russia. Might be Russia. But if it’s any foreign country, it shows how little respect they have for the United States. Yes, ma’am.

[snip]

QUESTION: Do you have any pause (ph) about asking a foreign government — Russia, China, anybody — to interfere, to hack into the system of anybody’s in this country…

TRUMP: That’s up to the President. Let the President talk to them. Look, here’s the problem. Here’s the problem, Katy (ph). Katy, here’s the problem, very simple. He has no respect…

QUESTION: (inaudible) 30,000 e-mails…

TRUMP: Well, they probably have them. I’d like to have them released.

QUESTION: Does that not give you pause?

TRUMP: No, it gives me no pause. If they have them, they have them. We might as well — hey, you know what gives me more pause? That a person in our government, crooked Hillary Clinton — here’s what gives me pause. Be quiet. I know you want to save her. That a person in our government, Katy, would delete or get rid of 33,000 e- mails. That gives me a big problem. After she gets a subpoena! She gets subpoenaed, and she gets rid of 33,000 e-mails? That gives me a problem (ph). Now, if Russia or China or any other country has those e-mails, I mean, to be honest with you, I’d love to see them.

[snip]

QUESTION: Did Don Jr. say back in 2008 that there was Russian money pouring into the top organizations…

TRUMP: We wanted to, yeah, I don’t know what he said. But we wanted…

(CROSSTALK)

TRUMP: Excuse me, listen. We wanted to; we were doing Miss Universe 4 or 5 years ago in Russia. It was a tremendous success. Very, very successful. And there were developers in Russia that wanted to put a lot of money into developments in Russia. And they wanted us to do it. But it never worked out.

Frankly I didn’t want to do it for a couple of different reasons. But we had a major developer, particular, but numerous developers that wanted to develop property in Moscow and other places. But we decided not to do it.

[snip]

QUESTION: (inaudible) you are the nominee. Has you or your campaign had any conversations with foreign leaders trying to build up a relationship should you win in November, that you don’t have to hit the ground running (inaudible)?

TRUMP: No, I think we — it’s possible we have. But I’m not — I’m only interested in winning. Once I win, I’ll get along great with foreign leaders, but they won’t be taking advantage. I mean, the problem we have with foreign leaders, whether it’s China, Russia, or anybody, they don’t respect our leadership. And certainly in the case of China, they take tremendous economic advantage of us — tremendous, to a point that is hard to believe.

I’ll get along great with the leadership. And we’ll do well.

Yes, ma’am, in the back?

QUESTION: Mr. Trump, (inaudible)

(CROSSTALK)

TRUMP: No, no. Excuse me. In the back?

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking. [my emphasis]

About the Two Investigations into Donald Trump

I’m still pretty cranky about the timing and form of Andrew McCabe’s publicity tour.

But since it’s out there, I’d like to comment on three details, two of which have gotten significant comment elsewhere.

Trump wanted Rod Rosenstein to include Russia in the reasons he should fire Comey

The first is that Trump specifically asked Rosenstein to include Russia — McCabe doesn’t further specify what he meant — in the letter recommending he fire Jim Comey.

McCabe says that the basis for both investigations was in Mr. Trump’s own statements. First, Mr. Trump had asked FBI Director Comey to drop the investigation of National Security Adviser Michael Flynn, who has since pleaded guilty to lying to the FBI about his Russian contacts.  Then, to justify firing Comey, Mr. Trump asked his deputy attorney general, Rod Rosenstein, to write a memo listing the reasons Comey had to go. And according to McCabe, Mr. Trump made a request for that memo that came as a surprise.

Andrew McCabe: Rod was concerned by his interactions with the president, who seemed to be very focused on firing the director and saying things like, “Make sure you put Russia in your memo.” That concerned Rod in the same way that it concerned me and the FBI investigators on the Russia case.

If Deputy Attorney General Rosenstein listed the Russia investigation in his memo to the White House, it could look like he was obstructing the Russia probe by suggesting Comey’s firing. And by implication, it would give the president cover.

Scott Pelley: He didn’t wanna put Russia in his memo.

Andrew McCabe: He did not. He explained to the president that he did not need Russia in his memo. And the president responded, “I understand that, I am asking you to put Russia in the memo anyway.”

When the memo justifying Comey’s firing was made public, Russia was not in it. But, Mr. Trump made the connection anyway, telling NBC, then, Russian diplomats that the Russian investigation was among the reasons he fired Comey.

The most obvious explanation for this is that Trump wanted to box DOJ in, to prevent them from expanding their investigative focus from one campaign foreign policy advisor, a second campaign foreign policy advisor, his former campaign manager, his National Security Advisor, and his lifelong political advisor to the one thing those five men had in common, Trump.

But it’s also possible that Trump wanted Rosenstein to do what Don McGahn had narrowly prevented Trump from doing, effectively shifting the obstruction to Rosenstein. That seems like what Rosenstein was worried about, an impression he may have gotten from his instructions from McGahn, laying out the case that investigating Russia would get you fired.

It’s possible, too, that Trump was particularly interested in the public statement for the benefit of the Russians, a view supported by the fact that Trump made sure he fired Comey before his meeting with Sergey Lavrov and Sergey Kislyak, and then stated that he had more freedom with Comey gone. That is, it’s possible he needed to prove to the Russians that he could control his own DOJ.

The order to Rosenstein was one of the predications for the investigation into Trump

McCabe elaborates on a story told at least partly by the Peter Strzok-Lisa Page texts: that the day after Trump fired Comey, FBI moved to open two investigations into Trump. A number of people have suggested McCabe just vaguely pointed to Trump’s statements, but he’s more specific than that. One of the statements was that order to Rosenstein to include Russia in the firing memo.

Scott Pelley: How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president?

Andrew McCabe: I think the next day, I met with the team investigating the Russia cases. And I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward. I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion that were I removed quickly or reassigned or fired that the case could not be closed or vanish in the night without a trace.

[snip]

Andrew McCabe: There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt…

President Trump on Feb. 16, 2017: Russia is a ruse. I have nothing to do with Russia. Haven’t made a phone call to Russia in years.

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

As McCabe describes it, the other things are obstruction-related: Trump’s attacks on the Russian investigation.

But remember, McCabe had heard the substance of Mike Flynn’s comments to Sergei Kislyak. The rest of us have seen just outlines of it. In some way, Mike Flynn convinced Sergei Kislyak on December 29, 2016, that Russia had Trump’s assurances on sanctions relief. Trump may well have come up specifically. In any case, the FBI would have had good reason — from Flynn’s lies, and his call records showing his consultations before he lied — to suspect Trump had ordered Flynn’s statements to Kislyak.

McCabe describes the genesis of the obstruction and the counterintelligence investigation

Finally, McCabe provides additional details to the dual investigation into Trump: the obstruction one arising out of Trump’s efforts to kill the Russian investigation, and the counterintelligence one into whether Trump was doing that at Russia’s behest (which goes back to my initial point, that Trump may have wanted Russia included in the firing memos as a signal to Russia he could kill the investigation).

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

Scott Pelley: What was it specifically that caused you to launch the counterintelligence investigation?

Andrew McCabe: It’s many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

Scott Pelley: Are you saying that the president is in league with the Russians?

Andrew McCabe: I’m saying that the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.

With that laid out, I’d like to look at Rod Rosenstein’s August 2 memo laying out precisely what Mueller was — and had, from the start — been authorized to investigate, which both Paul Manafort and the President’s flunkies in Congress spent a great deal of effort trying to unseal. Knowing as we now do that the redacted passages include at least one and probably two bullet points relating to Trump himself, it seems more clear than every that once you lay out the investigations into Trump’s flunkies known to have been predicated at the time, that’s all that would have been included in the memo:

  • Obstruction investigation into Trump
  • Counterintelligence investigation into Trump
  • Election conspiracy investigation into Manafort
  • Ukrainian influence peddling investigation into Manafort
  • Transition conspiracy investigation into Flynn
  • Turkish influence peddling investigation into Flynn
  • Counterintelligence investigation into Carter Page
  • Election conspiracy investigation into George Papadopoulos
  • Election conspiracy investigation into Roger Stone

At that point, there wouldn’t have been space for at least two of the three bullets that now exist on a scope memo, as laid out by Jerome Corsi’s draft plea (though “c” may have been there in conjunction with Stone).

At the time of the interview, the Special Counsel’s Office was investigating the Russian government’s efforts to interfere in the 2016 presidential election, including:

a. the theft of campaign-related emails and other documents by the Russian government’s Main Intelligence Directorate of the General Staff (“GRU”);

b. the GRU’s provision of certain of those documents to an organization (“Organization 1”) for public release in order to expand the GRU’s interference in the 2016 U.S. presidential election campaign; and

c. the nature of any connections between individuals associated with the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) and the Russian government or Organization 1.

That’s another to believe — as I have long argued — that bullets a and b got moved under Mueller at a later time, probably around November 2017. After Flynn flipped, the Middle Eastern pass-through corruption would likely have been added, and inauguration graft probably got added after Rick Gates flipped (before the non-Russian parts of both got spun off).

One thing that means, if I’m correct, is that at the time Mueller was hired, the investigation consisted of predicated investigations into probably six individuals. While there would have been a counterintelligence and criminal aspect to both, there was a criminal aspect to each of the investigations, with specific possible crimes envisioned. If that’s right, it means a lot of hot air about Mueller’s appointment simply misunderstood what part of Comey’s confirmed investigation got put under Mueller at first.

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 any case, the certainty that there are at least one and probably two bullets pertaining to Trump in that August 2 memo is interesting for a few more reasons.

It makes it far more likely that the Strzok 302 — based on a July 19, 2017 interview, drafted the following day, and finalized August 22 — was an effort to formalize Mueller’s authorization to investigate the President. The part of the 302 that pertains to Mike Flynn’s interview takes up the middle third of the report. The rest must lay out the larger investigations, how the FBI found the intercepts between Flynn and Kislyak, and what the response to the interview was at DOJ.

The 302 is sandwiched between two events. First, it follows by just a few weeks the release of the June 9 meeting emails. Indeed, the interview itself took place on the day the NYT published the interview where Trump admits he and Putin spoke about adoptions — effectively making it clear that Putin, not Trump, drafted a statement downplaying that the meeting had established a dirt-for-sanctions relief quid pro quo.

The 302 was also drafted the day before Mueller started pursuing the transition emails and other comms from GSA that would have made it clear that Trump ordered Flynn’s statements and key members of the transition team knew that.

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.

It also happens to precede, by days, when Michael Horowitz would inform Christopher Wray and then Mueller about the Page-Strzok texts, though that is almost certainly an almost unbelievable coincidence.

In any case, as I’ve noted, unsealing that August 2 memo has been like a crown jewel for the obstructionists, as if they knew that it laid out the investigation into Donald Trump. That effort has been part of a strategy to suggest any investigation into Trump had to be improper, even one investigating whether he engaged in a quid pro quo even before the General Election started, trading US policy considerations — starting with, but not limited to, sanctions relief — in exchange for help getting elected.

The obstructionists want to claim that an investigation that started with George Papadopoulos and then Carter Page and then Mike Flynn (the obstructionists always seem to be silent about Paul Manafort and Roger Stone, as if they knew who engaged in substantive conspiracy with the Russians) should not end up with Donald Trump. And they do so, I think, to suggest that at the moment it discovered that quid pro quo in July 2017, it was already illegitimate.

But as McCabe said, “the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.”

It just turned out that Trump was guilty.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Compromise: Sally Yates’ Warning about Vulnerability to Blackmail Applied to Trump Even More than Mike Flynn

Given the news that the FBI opened a Counterintelligence investigation into Trump in the week after he fired Jim Comey on May 9, 2017 (CNN’s account is actually far more useful than NYT’s), I want to look at part of what Sally Yates testified — the day before Trump fired Jim Comey — that she told Don McGahn when she let him know that Mike Flynn had lied to the public and the FBI about what he said to Sergei Kislyak on December 29, 2016.

Effectively, Yates laid out how, because the Russians would have known that Flynn had lied, it would be easy to blackmail him.

[W]e 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.

At the time she delivered these comments to McGahn in January 2017, Yates would have known only that Flynn had lied.

Even at the time she testified about the exchange with McGahn in May, neither she nor the FBI would yet have had tangible evidence that Flynn had been acting on Trump’s orders when he told Kislyak to hold off on responding to sanctions. Likewise, neither she nor the FBI knew at the time that Trump’s spawn had, the summer before, agreed to consider lifting sanctions if his dad got elected. Neither Yates nor the FBI would have known that the Russians were offering a Trump Tower deal and dirt on Hillary Clinton to induce Don Jr to commit to revisit sanctions. And, neither Yates nor the FBI would have known that Don McGahn had written up a misleading report justifying the firing of Mike Flynn (who, after all, had only done what he had been ordered), that directly conflicted with Yates’ account of the conversation.

For all those reasons, Yates would not have known that this theory — that covering up the Tower-for-sanctions quid pro quo, the commitment to deliver on sanctions relief, and the bogus reason for firing Mike Flynn made a person susceptible to blackmail — actually applied to Trump, not (just) Flynn. Indeed, for a variety of reasons Trump was more susceptible to blackmail than Flynn, because Flynn had just been doing what he was told, didn’t have a prior bribe to hide, and might expect a pardon if he successfully protected the President.

Indeed, Yates would not know how, from the moment David Ignatius revealed that the FBI had discovered the transcripts of Flynn’s conversations with Sergei Kislyak, the Russians would have had Trump by the nuts. All the more so given that the FBI also had a transcript of Kislyak explicitly informing Flynn that Putin had based his response to Obama’s sanctions on December 30, 2016 on Flynn’s assurances about sanctions. Putin, that old KGB hand, made sure there was a record of the Russians making it clear that their response was entirely premised on whatever promises Flynn had made (at Trump’s direction).

From the moment the Russians learned the FBI had found those transcripts, Trump would have had to prevent the FBI from discovering that he had ordered Flynn to make those comments, and had ordered him to do so to pay off his election debt.

From that moment forward, Trump would be stuck committing one after another act of obstruction in an attempt to prevent the FBI from discovering the full truth. Each of those acts would put him deeper in the hole, because each time he engaged in obstruction, the Russians would measure his increasing vulnerability.

Almost a month before he took an oath to protect and defend the Constitution, Donald Trump clandestinely took an action to undercut the official policy of America’s President. From that moment forward, he had as much at stake as the Russians in thwarting the investigation into the election year operation.

And Putin has capitalized on that compromise ever since.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Tit-for-Tat: What Mike Flynn’s 302 Reveals about the Lies He Told

Last week, I wrote this post arguing that Mike Flynn’s 302 (FBI interview report) shows what Flynn was hiding when he lied to the FBI: In addition to his most fundamental lie — that he and Sergei Kislyak had talked about Russia moderating its response to new Obama sanctions, Flynn lied about his coordination with KT McFarland, who was with Trump at Mar-a-Lago.

Since people are still wondering why Flynn lied, I thought I’d write it up to make it even more plain. This post relies on these sources:

As Flynn’s Statement of the Offense lays out, Obama signed the Executive Order imposing new sanctions on December 28, 2016.

On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

Flynn admitted that Kislyak contacted him the day Obama imposed the sanctions.

On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

Flynn told the FBI that was a text that, because of poor connectivity in Dominican Republic, he didn’t see for a day. (I suspect this is also a lie, but it is possible.)

Shortly after Christmas, 2016, FLYNN took a vacation to the Dominican Republic with his wife. On December 28th, KISLYAK sent FLYNN a text stating, “Can you call me?”

Sometime in the day after Obama imposed the sanctions, Lisa Monaco gave her successor, Tom Bossert, a heads up about how angry the Russians were, making it clear the Obama Administration had formally contacted them.

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.

That suggests that the Obama Administration formally alerted the Russians before Kislyak’s text and alerted the Trump Transition not long after. That is, the Flynn-Kislyak contacts occurred after Obama had informed both sides, if not Flynn directly.

In spite of that formal notification, Flynn attributed any delay in responding to Kislyak to Dominican Republic’s poor cell phone reception. He claims (probably assuming the only communications the FBI would ever review would be Kislyak’s communications) that he saw the text on the 29th, took a bit of time, then called the Russian Ambassador.

FLYNN noted cellular reception was poor and he was not checking his phone regularly, and consequently did not see the text until approximately 24 hours later. Upon seeing the text, FLYNN responded that he would call in 15-20 minutes, and he and KISLYAK subsequently spoke.

What Flynn didn’t tell the FBI is that, per his allocution, he spoke with KT McFarland immediately before his call with Kislyak (importantly, this is true whether he really didn’t find out until the 29th or if there was a longer conversation with McFarland).

On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PTT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

The account of the timing of discussions both at Mar-a-Lago and with advisors who were dispersed across the globe in the NYT story is vague. Though NYT makes it clear that one email, at least, described the Flynn call with Kislyak prospectively.

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

One of those emails, importantly, included the following talking points.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him. [my emphasis]

Per the NYT, that email appears to have been forwarded to — among others — Flynn.

Mr. 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.

One thing makes it more likely that Flynn received McFarland’s email (or at least equivalent talking points via phone), and received it before he returned the call to Kislyak. When the Agents moved to the stage of the interview where — per Peter Strzok’s later description — “if Flynn said he did not remember something they knew he said, they would use the exact words Flynn used,” they quoted that “tit-for-tat” language.

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which the expulsions were discussed, where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian response reciprocal, or not to engage in a “tit-for-tat.” FLYNN responded, “Not really. I don’t remember. It wasn’t, “Don’t do anything.” [my emphasis]

So whether Flynn saw this language in an email first, it seems clear he spoke to McFarland — who was coordinating all this from Mar-a-Lago, where Trump was — before he spoke with Kislyak. And that’s important, because Flynn claimed he had no idea that the US had expelled a bunch of Russian diplomats “until it was in the media.”

The U.S. Government’s response was a total surprise to FLYNN. FLYNN did not know about the Persona-Non-Grata (PNG) action until it was in the media.  KISLYAK and FLYNN were starting off on a good footing and FLYNN was looking forward to the relationship. With regard to the scope of the Russians who were expelled, FLYNN said he did not understand it. FLYNN stated he could understand one PNG, but not thirty-five.

It’s possible that Flynn didn’t learn about the expulsions until Obama’s press releases on the 29th, if he didn’t check with McFarland before that. Except he also claimed the FBI that he didn’t have access to TV news in DR.

FLYNN noted he was not aware of the then-upcoming actions as he did not have access to television news in the Dominican Republic and his government BlackBerry was not working.

In context in his 302, though, that seems to be offered as a substantiating detail to support his claim that he didn’t know about the expulsions before he spoke with Kislyak — or, indeed, the even crazier claim that Kislyak didn’t raise it on that call, regardless of what Flynn knew going into the call.

The interviewing agents asked FLYNN is he recalled any conversation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about [Astana peace conference] described earlier.

Consider how ridiculous this lie is: Flynn wanted the FBI to believe that, having asked Flynn to contact him after Russia was informed of Obama’s sanctions, Kislyak didn’t even mention the sanctions to him.

That’s obvious nonsense. But it was a necessary to hide two things. First, that he had spoken with Kislyak about sanctions — which is what the focus has been on until now.

But claiming that he hadn’t heard about the expulsions before he called Kislyak also served to hide an equally critical detail: Flynn had not only heard of the sanctions (if he hadn’t already heard) from his deputy, KT McFarland, who was at Mar-a-Lago with Trump, but she and he and a number of other people had coordinated what he would say to Kislyak before the call. And they did do based off the belief that Obama’s actions against Russia were all a political set-up and not a sound response to Russia’s involvement in the election.

Flynn not only coordinated his messaging with McFarland, but he used language she offered, writing from Mar-a-Lago: “tit-for-tat.”

After Flynn pled guilty, McFarland spent some time cleaning up what she had told the FBI the previous summer (at a time when everyone seemed to believe their emails recording all this would never be reviewed by the FBI). According to WaPo’s coverage, McFarland,

walked back her previous denial that sanctions were discussed, saying a general statement Flynn had made to her that things were going to be okay could have been a reference to sanctions, these people said.

Flynn’s statement of the offense actually reflects two conversations that McFarland may have initially lied about — one on December 29, when Flynn reported back on his call with Kislyak, and another after his December 31 call with Kislyak, when Flynn reported back to “senior members of the Presidential Transition Team.”

Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FL YNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation.

It appears that Flynn tried to hide the entire existence of the call on December 31 (unless that’s why he claimed he had to keep calling back to Kislyak because of connectivity issues).

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, or chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration. FLYNN stated it was possible that he talked to KISLYAK on the issue, but if he did, he did not remember doing so. FLYNN stated he was attempting to start a good relationship with KISLYAK and move forward. FLYNN remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues. FLYNN reflected and stated that he did not think he would have had a conversation with KISLYAK about the matter.

The point, however, is multiple people in the Transition lied about this back-and-forth involving people at Mar-a-Lago with Trump.

Their correction of those stories is probably one thing described in this redaction in Flynn’s sentencing addendum.

The fact that Flynn’s lies attempted to hide coordination with Mar-a-Lago and the Transition team generally is significant for several reasons.

First, it appears that at least KT McFarland and probably Sean Spicer were in on at least part of Flynn’s cover story. If that’s right, it would require more coordination than we’ve seen reported based on emails. It’s still unclear how much those who lied about Flynn’s conversations early in January 2017 — including Spicer but especially Mike Pence, who has not been named as receiving the emails among the Transition team — knew about Flynn’s conversations.

A perhaps more important detail, legally, is one that Ty Cobb — at the time, still working for Trump — tried to deny: at least one person in the Trump camp had assured the Obama Administration that they would not undercut Obama’s efforts to retaliate against Russia.

The Trump transition team ignored a pointed request from the Obama administration to avoid sending conflicting signals to foreign officials before the inauguration and to include State Department personnel when contacting them. Besides the Russian ambassador, Mr. Flynn, at the request of the president’s son-in-law, Jared Kushner, contacted several other foreign officials to urge them to delay or block a United Nations resolution condemning Israel over its building of settlements.

Mr. Cobb said the Trump team had never agreed to avoid such interactions. But one former White House official has disputed that, telling Mr. Mueller’s investigators that Trump transition officials had agreed to honor the Obama administration’s request.

This puts a totally different spin on Susan Rice’s role in unmasking intercepts involving Trump transition officials exhorting the Russian Ambassador to blow off Obama’s sanctions and working with Mohammed bin Zayed al-Nahyan to keep a face-to-face meeting in NY secret (and probably also other intercepts assuring Bibi Netanyahu the Trump Transition would do all they could to undercut an Obama effort to punish Israeli settlements).

Rice would have unmasked those conversations having some reason to believe that the people involved in those discussions (Flynn and Kushner) were blowing off a Trump Transition commitment not to undercut Obama policy.

Such actions, then, would appear to go beyond a mere Logan Act violation. That is, Flynn and Kushner would have appeared to be pursuing their own foreign policy agenda, not just undercutting Obama’s policy, but also undercutting Trump’s (contested) agreement not to undercut Obama’s policies at least through the transition. And they would be doing so, by appearances, in pursuit of their own personal profit.

And those seeming instances of free-lancing would have accompanied Flynn’s request (in the days before it would be exposed that his Transition calls had been intercepted) to Rice to delay arming the Kurds, at a time when he was still legally hiding this relationship with Turkey.

Ultimately, we’re almost certainly going to learn all this was done with Trump’s explicit approval.

But because Flynn made such an effort to hide that his efforts to placate the Russians (and help the Turks and carry out undisclosed conversations with the Emirates and Israel) were done on the specific direction of Trump and Kushner, it would have looked like he was undermining both the Trump Administration and the interests of the United States.

It turns out he was only doing the latter.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Why It Mattered (and Still Matters) that Flynn Continued to Hide His True Relationship with Turkey

The guy who managed the first steps of the process that led to Trump announcing a withdrawal of troops from Syria yesterday was hiding secret ties to both Russia and Turkey when that process started. That’s one of the reasons why it matters that Mike Flynn lied about his relationship with Turkey for so long. It means that both Russia and Turkey have always known Flynn and Trump were vulnerable because they were hiding lies about their ties with those countries.

In this post, I noted that while the work Flynn did as an unregistered foreign agent for Turkey reportedly ended not long after election day (though WSJ reported that he and his spawn met with representatives of Turkey in mid-December to speak further about Fethullah Gulen), that relationship with Turkey would remain unregistered — that is, Flynn would continue to lie about the true nature of it — all the way through his guilty plea on December 1, 2017. For some reason, virtually everyone reporting on Flynn is getting this wrong, claiming that his March 7, 2017 registration — the one he has pled guilty to lying on — constitutes full disclosure about his ties to Turkey. It did not, because it hid that he was working, knowingly, for Turkey.

That’s important because, as I described in a post on what the redactions in the published version of the 302 (“302” is what the FBI calls their interview reports) memorializing Flynn’s January 24, 2017 interview with the FBI hide, he explained away the conversations by claiming that he and Sergei Kislyak discussed the Trump Administration’s plans on working with Russia and Turkey.

The redactions in Flynn’s 302 included two passages on Flynn’s December 29, 2016 phone calls with Ambassador Kislyak. In the first, Flynn offered up that he and Kislyak had discussed two things: a phone call with Vladimir Putin that would take place on January 28, and whether the US would send an observer to Syrian peace talks Turkey and Russia were holding in Kazakhstan the next month.

Later in Flynn’s FBI interview, as Agents were quoting bits of the transcript back to Flynn, he again denied he and Kislyak had discussed expulsions of Russia’s diplomats. He appears to have, again, claimed they talked about sending representatives to Astana.

For some reason, the government considers the specific description Flynn used with the FBI to remain too sensitive to publicly release, either because they don’t want co-conspirators to know precisely what Flynn said, and/or they don’t want the Russians and Turks to know.

The claim that those Kislyak phone calls discussed a later call with Putin and the Astana conference is the same one the Transition would offer to the WaPo the day after David Ignatius made clear that the FBI had recordings of the call. Mueller’s reply to Flynn’s sentencing memo describes that Flynn asked a subordinate to feed this information to the WaPo.

The defendant asked a subordinate member of the Presidential Transition Team to contact the Post on the morning of January 13 and convey false information about the defendant’s communications with the Russian ambassador. The “UPDATE” included at the end of the Post story later reported that two members of the Presidential Transition Team stated that the defendant “didn’t cover” sanctions in his conversation with the Russian ambassador.

As Mueller laid out, after Flynn told this cover story about his calls publicly, he continued to double down on it, such that by the time the FBI came to his office on January 24, he had to stick to that story.

Over the next two weeks, the defendant repeated the same false statements to multiple members of the Presidential Transition Team, including Vice President-Elect Michael Pence, incoming White House Chief of Staff Reince Priebus, and incoming White House Press Secretary Sean Spicer. Those officials then repeated the defendant’s false statements on national television. See, e.g., Face the Nation transcript January 15, 2017: Pence, Manchin, Gingrich, CBS NEWS (Jan. 15, 2017) (Vice President Pence recounting that defendant told him he did not discuss sanctions with the Russian ambassador); Meet The Press 01/15/17, NBC NEWS (Jan. 15, 2017) (Priebus recounting that he had talked to the defendant and “[t]he subject matter of Case 1:17-cr-00232-EGS Document 56 Filed 12/14/18 Page 2 of 7 -3- sanctions or the actions taken by the Obama [sic] did not come up in the conversation [with the Russian ambassador.]”); White House Briefing by Sean Spicer – Full Transcript, Jan. 23, 2017, CBS NEWS (Jan. 24, 2017) (Spicer recounting that he had spoken with the defendant the day before, who again stated that he (the defendant) had not spoken to the Russian ambassador about the sanctions). Thus, by the time of the FBI interview, the defendant was committed to his false story.

Flynn’s lies to cover the discussion about sanctions and expulsions were not entirely invented; he’s a better liar than that. The Transition really was struggling over its decision of whether to join in a Syrian peace plan that would follow Russia (and Turkey’s lead) rather than the path the Obama Administration had pursued in the previous year. As he noted to the FBI, the Trump Administration had only decided not to send a senior delegation to Astana earlier that week. It was announced on January 21.

These lies compromised Flynn in two ways. As Sally Yates noted when she described the problem with Flynn’s lies to Don McGahn two days after his interview, because Flynn was saying something publicly that Russia knew to be false, Russia could hold that over him (and the Administration).

But by staking his lies on the Astana conference — and the Trump Administration’s willingness to join a Syrian effort that deviated from existing US policy — Flynn also raised the stakes of his past paid relationship with Turkey. It became far more damaging that Flynn had still been on the Turkish government payroll through the early transition, when Trump directed him to conduct early outreach on Syria. So even while DOJ was repeatedly telling Flynn he had to come clean on his Turkish lobbying ties, he lied about that, thereby hiding that the early days of Trump Administration outreach had been conducted by a guy still working for Turkey.

Since that time, both Flynn and Trump were stuck, because they had told lies to the US government that Russia and Turkey knew were lies.

Indeed, Trump may have started telling his own lies right away. Three days after Flynn’s FBI interview, in a conversation with Jim Comey after he had already learned of Sally Yates’ conversation with Don McGahn telling him of DOJ’s concerns about the FBI interview, Trump offered what was probably a bullshit cover story about Flynn’s communications with Russia, possibly bullshit invented to hide what Trump knew about ongoing discussions with Russia. [Here’s version of this story fed to the NYT.]

He then want 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 ad 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 of 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].

Since his first days as President, Trump (and Mike Flynn, until he pled guilty) has been trying to hide the true substance of the relationship he had with both Russia and Turkey.

As it happens, it appears that Turkey was the country that ultimately exploited that leverage. While Trump did little more than greet Putin at the G20 in Argentina as more details of his negotiations with Russia over a Trump Tower have become clear, he did meet with Recep Tayyip Erdogan. And he spoke with Erdogan by phone yesterday last Friday before he unexpectedly announced that American troops were withdrawing from Syria.

In the wake of yesterday’s decision, Nancy Pelosi (who as a Gang of Eight member, may know non-public information about all this) tied Trump’s announcement to the Flynn sentencing hearing and his work for Turkey; she suggested Trump had made the decision to serve his own personal or political objectives.

It is premature for the President to declare a sweeping victory against ISIS when, just a few weeks ago, our military led more than 250 coalition-conducted airstrikes against targets in Iraq and Syria. All Americans should be concerned that this hasty announcement was made on the day after sentencing in criminal proceedings began against the President’s former National Security Advisor Michael Flynn, who admitted that he was a registered foreign agent for a country with clear interests in the Syrian conflict.

[snip]

“When we take the gavel, our Democratic Majority will uphold the Congress’ constitutional oversight responsibilities to ensure that the President’s decisions advance our national security interests, not his personal or political objectives.

I don’t know whether Pelosi is correct (and I actually hope that we do get out of Syria, though perhaps congressional oversight can force Trump to do this in a way that doesn’t result in genocide for our longtime Kurdish allies).

But I know that when Trump ordered a guy who was still on Turkey’s payroll to initiate the negotiations that resulted in yesterday’s announcement, then tried to sustain lies those negotiations, he effectively ceded a lot of control over how negotiations would proceed to the countries that shared his and Flynn’s secrets.

And, of course, Trump’s Treasury Department also announced yesterday that it was reversing sanctions on Oleg Deripaska’s company (though not Deripaska himself, and restrictions on his ownership are quite significant).

Update: Corrected date of call with Erdogan. See this story for significance of that call.

Timeline

November 8, 2016: “Flynn’s” Fethullah Gulen op-ed

November 18: Elijah Cummings writes Mike Pence with concerns about conflicts in Flynn’s lobbying business

November 30: NSD contacts Flynn about registering under FARA

December 1: Flynn ends contract with Inovo

Mid-December: Reported meeting at 21 Club in NYC to discuss rendering Fethullah Gulen

December 29: Flynn discusses attending Syrian peace talks hosted by Turkey and Russia with Sergei Kislyak

January 10: Flynn asks Susan Rice to hold off on assault on Raqqa

January 11, 2017: Flynn tells DOJ he’ll “probably” be registering under FARA

January 12: David Ignatius column makes it clear FBI had intercepted Sergei Kislyak conversation discussing peace process

January 13: Based in part on White House cover story for Flynn-Kislyak call, WaPo reports discussions about participation in Astana conference

After inauguration: Flynn tells Trump Administration he will definitely register

January 21: State Department announces US Ambassador to Kazakhstan, not Flynn, will attend Russian-Turkish peace talks

January 23: Astana conference starts

January 24: Flynn interviews with FBI, and explains away the December 29 call, in part, by saying they discussed an observer to Astana

January 27: Trump tells Comey he questions Flynn’s judgment because he took six days to return a call to Vladimir Putin (he references a Putin call, the first call of congratulations from a foreign leader, but it’s not clear whether it came on January 22, 23, or 24)

January 28: Conference call with Vladimir Putin allegedly discussed on December 29

March 7: Flynn submits FARA filing that still hides true relationship with government of Turkey

December 1: Flynn pleads guilty, in part, to lying in that FARA filing

December 18, 2018: Flynn sentencing hearing

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Black Holes in the Mike Flynn 302: The Back Channel Discussion May Be Most Sensitive Investigative Detail

In this post, I talked about what we can deduce from the unredacted parts of the Mike Flynn 302 released last night. It shows that Flynn’s lies served to hide that he consulted very closely with Mar-a-Lago — almost certainly with Trump — and even denied parts of the transcript that showed him quoting directly from KT McFarland’s related instructions.

While we’re waiting on Flynn’s sentence, I’d like to look at the substantive redactions, as a way of assessing what Mueller thinks must remain secret. I’ll just be looking at the actual report, not the bureaucratic redactions (which hide things like the case number and classification levels for the individual paragraphs).

The first redaction comes in a paragraph recording what Flynn claimed were his past communications with Sergei Kislyak, in which he explains that he called Kislyak in the wake of the death of GRU head Igor Sergun in January 2016.

It’s possible the redaction includes an admission that he and Kislyak discussed policy — ascribing a a policy call to a condolence one is precisely what he did with the December 29 calls to Kislyak, after all. Note, too, the way Flynn distanced that conversation from Trump (he probably figured out that that call, like his much later one, would have been picked up). It’d be especially interesting if the redaction pertained to Flynn’s claim that Sergun died in Lebanon; Russia’s military issued a panicked denial today that Sergun died there (they say he died of heart problems in Russia).

The second redaction hides Flynn’s discussion of his trip to Russia in 2015, on a trip ultimately paid by RT, where he sat at a table with Vladimir Putin and Jill Stein.

This actually might be hidden for counterintelligence reasons — to hide the circumstances of how Russians tried to sidle up to Flynn by flying him in for the gala. That said, the details are likely part of Mueller’s understanding of how Russia cultivated Trump and those close to him.

The next redaction hides Flynn’s description of the outreach to the Russians he was making.

I suspect this provides more detail about the outreach Flynn made on Syria. He portrays it as pertaining to terrorism, not paying back Russia. The hidden passage may also address timing which we now know actually started during the election (which would mean this redacted passage could hide yet another Flynn lie).

Note, it’s actually fairly interesting that Flynn worked exclusively via Kislyak, but none of that is likely to be redacted.

The first paragraph about the December 29 conversation hides two details: what appears to be a request that Flynn set up the conference call that ultimately took place on January 28, and an inquiry on whether the US would send observers to … something.

This redaction is one I expect we’ll get follow-up reporting on, as Kislyak was making significant asks at that time.

Update: TC suggests the reference to monitors might pertain to evacuation of Aleppo. It’s definitely a possibility. Update: The observer comment pertained to Syria peace talks. h/t JM

The longest redaction in the 302 may be the one that hides Flynn’s description of the December 1 meeting with himself and Jared Kushner (Don Jr came in at some point — the meeting was conducted in his office) where Jared asked for a back channel of communications.

I find the extent of this redaction … to be bad news for Jared Kushner (and Don Jr if he attended more of the meeting than he claims). This is another meeting that FBI had details about (or later would discover them), from when Kislyak called home and reported on the back channel request. A significant purpose for this redaction must be to hide what Flynn said from the other co-conspirators.

Also note: if this meeting is the only other communication with Kislyak that Flynn admitted to, he may have also hid communications he had during the election (in which case those communications would have also been considered sensitive).

These two words are the only ones redacted in the entire three-paragraph passage describing Flynn’s lies about the vote on Israeli settlements.

The redactions here — at least the second one — are for diplomatic reasons.

I believe the second one hides the word “Egyptians;” I’m not sure if the first is long enough to be “Israel.” It may be “Trump,” in which case it’d be another point where Flynn hid how much he coordinated with Trump on all this.

In any case, the fact that Mueller redacted so little of this discussion suggests that the effort to help Israel is not a core part of his investigation (or if it is, Jared, who ordered Flynn to try to delay the vote on Israel, has already locked in his testimony on it).

It’s unclear what this redaction, in the first paragraph as the FBI Agents circled back to Flynn’s lies about the sanctions call, hides. It may be another reference to the discussion about sending observers somewhere.

That’s the final redaction, though. The rest — which details how the Agents quoted directly from the transcript (including the bit that was itself a quote of KT McFarland) is all unsealed, so presumably no longer sensitive from an investigative standpoint.

All of which is to say that the most sensitive investigative detail in Flynn’s 302 — the thing the government cared most about hiding — is what Flynn said about that December 1 meeting where Jared asked to set up a back channel of communication with Russia.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

On Emmet Sullivan’s Order for Mike Flynn’s 302s: Be Careful What You Ask For

In his sentencing memorandum, Mike Flynn waved the following in front of Judge Emmet Sullivan, like a red cape before a bull.

There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.20 General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.21

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”22

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn.23 By the agents’ account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. 24 The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.25 Before the interview, FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”26 One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”27

He cited a memo that fired FBI Deputy Director Andrew McCabe wrote the day of Flynn’s interview and the interview report (called a “302”) that fired FBI Special Agent Peter Strzok had a hand in writing up in August 2017, some seven months after the interview.

In response, the judge in his case, Emmet Sullivan, issued an order asking not just for those two documents, but any documents related to the matters Flynn writes up, to be filed by tomorrow, along with the government’s reply to his memorandum.

And so it is that on the one year anniversary of the order Sullivan issued to ensure that Flynn got any exculpatory information relating to his plea, that the hopes among the frothy right that Flynn’s prosecution (including for lying about his sleazy influence peddling with Turkey) will be delegitimized and with it everything that happened subsequent to Flynn’s plea might be answered.

Or maybe not.

For those unfamiliar with his background, back in the waning years of the Bush Administration, Sullivan presided over the Ted Stevens’ prosecution. After Stevens was convicted, DOJ started ‘fessing up to a bunch of improprieties, which led Sullivan (on newly confirmed Eric Holder’s recommendation) to throw out the conviction. Sullivan demanded a report on the improprieties, which ended up being a scathing indictment of DOJ’s actions (that nevertheless didn’t lead to real consequences for those involved). Since that time, Sullivan has been wary of DOJ’s claims, which has led him to do things like routinely issue the order he did with Flynn’s case, making sure that defendants get any exculpatory evidence they should get.

Regardless of how this request works out, you should applaud Sullivan’s diligence. He’s one of just a few judges who approaches the government with the skepticism they deserve. And to the extent that problems with our criminal justice system only get noticed when famous people go through it, it’s important that this one be treated with such diligence.

Still, those problems include both abuse, like we saw in the Stevens case, and special treatment, like David Petraeus got, and it’s actually unclear whether Sullivan’s request will uncover one or the other (or neither). I say that for several reasons.

First, because the public evidence suggests that — if anything — Obama’s appointees demanded FBI proceed cautiously in their investigation of Trump’s people, delaying what in any other case would have been routine early collection. When FBI discovered Flynn making suspicious comments to Sergei Kislyak, concerns about how to proceed went all the way up to Obama.

Moreover, contrary to most reporting on this interview, the FBI’s suspicions about Flynn did not arise exclusively from his calls to Kislyak. The interview happened after a counterintelligence investigation into Flynn had been open for months, as laid out by the House Intelligence Committee Russia report.

Director Comey testified that he authorized the closure of the CI investigation into general Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure of the CI investigation was imminent.

If McCabe believed the CI investigation into Flynn had produced mostly fluff, it might explain why he would approach setting up an interview with him with less than the rigor that he might have (as arguably happened with Hillary in the analogous situation). He didn’t expect there to be a there there, but then there was (remember, Jim Comey has repeatedly said that the one thing that might have led the Hillary investigation to continue past her interview as if they caught her lying; the difference is that Flynn told obvious lies whereas Hillary did not).

Finally, there’s one other, major reason to think this ploy may not work out the way Flynn might like. That’s because the frothy right, its enablers in Congress, and the White House itself has pursued this line for most of a year. Particularly in the wake of Flynn’s cooperation agreement, claiming that Flynn was just confused or forgetful when he spoke to the FBI has been central to Trump’s serial cover stories for why he fired Flynn.

So Republicans hoping to find the smoking gun have looked and looked and looked and looked and looked at the circumstances of Mike Flynn’s interview. Already by March of last year, they had resorted only to misstating Comey’s testimony about what happened in the HPSCI report.

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.”

Nothing in the report — which now includes a section substantially declassified to reveal more purportedly incriminating details about Flynn — suggests real impropriety with his interview.

Even in that very same paragraph, they quote McCabe (the guy who wrote up a memo that same day, which is probably what Sally Yates relied on when she suggested to the White House they needed to fire Flynn) stating very clearly that the FBI agents recognized that Flynn had lied.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

The degree to which, after looking and looking and looking and looking for some smoking gun relating to the Flynn interview but finding very little is perhaps best indicated by where that search has gotten after looking and looking and looking and looking — as most recently exhibited in Jim Comey’s questioning from a week ago, by the Republicans’ best prosecutor, Trey Gowdy. After (apparently) hoping to catch Comey lying about what investigators thought when the lifetime intelligence officer managed to lie without any tells but instead leading him through a very cogent explanation of it, Gowdy then resorts to sophistry about what day of the week it is.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Then Gowdy tries a new tack: suggesting that Flynn should have gotten the agents’ finding that he lied without any physical tells provided as some kind of Brady evidence.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question.

I mean, maybe there are some irregularities explaining why it took seven months to write up Flynn’s 302 and how information about the interview was shared within DOJ in the interim; if there is I’d like to know what those are. But what everyone seems to agree is that there was no dispute, from the very beginning, that Flynn lied.

And Flynn’s statement actually makes things worse for himself (and, importantly, for one of the White House cover stories that his firing was immediately precipitated by Don McGahn confronting him with the transcript of his conversation with Kislyak). Flynn’s own sentencing memo makes it clear the FBI Agents were quoting directly from the transcript about what he said.

FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”

So Flynn would have known, way back when the White House was trying to find excuses to keep him on, precisely what he had been caught saying.

Finally, remember two more details. While we can’t read it, Sullivan (and Flynn’s team) know what’s behind this redaction:

That means Sullivan knows, even if we don’t, why Mueller thinks it so important that Flynn lied, and so may have a very different understanding about the import of those lies.

Finally, note that along with requiring the government to turn over all the filings relating to his interview (not just the two Flynn selectively quoted from), Sullivan also instructed the government to file their reply to Flynn’s sentencing memo by the same time.

DOJ has never had the opportunity to write its own explanation for what happened with Flynn’s interview. By inviting a reply specifically in the context of this Flynn claim, Sullivan has given DOJ the opportunity to do just that, finally.

DOJ may have a very interesting explanation for why they approached a counterintelligence interview with a guy they might have considered one of them with jocularity.

Sure, there may yet be damning details. As I’ve said, I really look forward to learning why it took seven months to formally memorialize this interview.

But the GOP has been looking for a smoking gun for a year and have not apparently found one. It’s quite possible we’ll learn something else tomorrow, that Mike Flynn actually got special treatment that none of us would get if we were suspected of being recruited by Russian intelligence.

At the very least, Sullivan’s order may result in documentation that reveals just how shoddy all the claims irregularity surrounding Flynn’s interview have been all this time.

Update: Elevating this from pinc’s comment. If DOJ chooses to tell a story that at all resembles Greg Miller’s account of the meeting (including that Flynn specifically said he didn’t want to have a lawyer of any type present), then this could spectacularly backfire.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

No, Mike Pence Is Not Going to Be Indicted

For a long time, I’ve pissed off the frothy anti-Trumpers because I insist there is nothing in the public record that suggests Mike Pence will be indicted as part of the Mueller investigation. Yes, it is true that Paul Manafort — who may yet get indicted six more times at the rate he’s going — installed him, but on top of being a Russian-backed sleaze, he’s also an expert on getting Republicans elected, and he was right that Trump needed someone with real Evangelical credentials and close ties to the Koch network to get elected. Yes, it is true that he got warnings that Flynn was an unregistered foreign agent, but as Vice President, he’s not the guy who decided Flynn would make a swell National Security Advisor. And as I’ve long argued, the fact that Mike Pence knowingly lied — if that’s what he did do — to hide that Mike Flynn had discussed sanctions with Sergei Kislyak is not an indictable offense, not even close to one.

Besides, Robert Mueller seems to believe he didn’t knowingly lie.

That’s what this passage from the Addendum laying out Flynn’s cooperation means.

Pence is, of course, the most obvious person who repeated the false story that Flynn had not discussed sanctions with Kislyak. But we don’t even have to know that to focus on Pence. That’s because the sentencing memo itself lays out how the progression from the David Ignatius column to Pence’s appearance on Face the Nation led up to Flynn’s FBI interview, according that progression and Pence’s role in it particular emphasis.

Days prior to the FBI’s interview of the defendant, the Washington Post had published a story alleging that he had spoken with Russia’s ambassador to the United States on December 29, 2016, the day the United States announced sanctions and other measures against Russia in response to that government’s actions intended to interfere with the 2016 election (collectively, “sanctions”). See David Ignatius, Why did Obama Dawdle on Russia’s hacking?, WASH. POST (Jan. 12, 2017). The Post story queried whether the defendant’s actions violated the Logan Act, which prohibits U.S. citizens from corresponding with a foreign government with the intent to influence the conduct of that foreign government regarding disputes with the United States. See 18 U.S.C. § 953. Subsequent to the publication of the Post article and prior to the defendant’s FBI interview, members of President-Elect Trump’s transition team publicly stated that they had spoken to the defendant, and that he denied speaking to the Russian ambassador about the sanctions. See, e.g., Face the Nation transcript January 15, 2017: Pence, Manchin, Gingrich, CBS NEWS (Jan. 15, 2017).

So the sentencing memo tells us that the progression from Ignatius to Pence was important, and one of the unredacted bits describing Flynn’s cooperation states that Flynn conveyed false information to several senior members of the transition team, which they publicly repeated.

And then the passage describing Flynn’s cooperation regarding transition events ends with three redacted lines.

I have, in the past, doubted that Flynn told Pence and Sean Spicer that sanctions didn’t come up. But Mueller seems to have no doubt.

So when Pence claimed on the teevee that Flynn did not talk sanctions with Kislyak, he believed — because that’s what Flynn told him — that Flynn did not talk sanctions with Kislyak.

Where things (especially those three redacted lines) get interesting is when you look at the story Trump’s lawyers told Mueller in the wake of Flynn’s plea deal in January in an attempt to spin a story McGahn wrote days after Flynn got fired into something that would still hold up almost a year later. Effectively, the original McGahn narrative invented reasons (which are inconsistent with Sally Yates’ version of events) why Trump didn’t fire Flynn right away on January 26, but instead — in a series of conversations memorialized by the then FBI Director — tried to convince Jim Comey to drop things. The original McGahn narrative further invented reasons why Flynn’s lies to Pence mattered on February 13 (when they were used as an excuse to fire Flynn in an attempt to kill the investigation) when they hadn’t mattered on January 26.

As I’ve laid out here, things got still worse when, on January 29, 2o18, they had to try to make that story fit Don McGahn’s testimony from fall 2017, Transition documents seized during the summer that Trump witnesses only belatedly realized Mueller had, and Flynn’s decision to cooperate in November. The most interesting of the glaring problems with the story, however, is this one:

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.

Remember: according to public reports, Trump refused to answer any questions pertaining to the transition period. Since January 8, 2018, Mueller’s team has been trying to get him to address his knowledge and involvement in (among other things):

  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;

These, then, would be two of the questions Trump refused to answer by asserting Executive Privilege over issues from a period when he was not yet the Executive.

But then, Mueller probably doesn’t need Trump to answer questions to which the answer is almost certainly, “I ordered them.” As Flynn’s addendum on cooperation lays out, “the defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate,” which is (like the comment on Flynn’s lies to Pence) followed by several redacted lines, the last of the addendum. We know, for example, that one of the people that belatedly decided to unforget details she was a party to firsthand after Flynn flipped was KT McFarland, who would have conveyed Trump’s orders to Flynn.

In other words, with all the people who’ve followed Flynn’s lead and belatedly unforgotten what really happened, Mueller likely has abundant evidence both that Trump ordered both of these actions, and that his team kept inventing stories to try to explain away the aftermath.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.