Reply With Quote
IV.
After Shea’s motion to end Flynn’s prosecution was sent to the court on May 7, the former acting assistant attorney general for national security, Mary McCord, took public issue with it. In an op-ed for the New York Times, she accuses Shea—and by extension Attorney General William Barr—of twisting words that she provided in an interview to the FBI about key events after the fact to support the motion.
McCord acknowledges there were disagreements between Comey and Yates on notifying the incoming Trump administration of Flynn’s Kislyak call. At the same time, she says her interview does not support Shea’s claim that the call was immaterial to the counterintelligence investigation.
McCord’s argument is premised on the disconnect between the Pence interview and the transcript of the Flynn–Kislyak call. She writes: “The Russians would have known what Mr. Flynn and Mr. Kislyak discussed. They would have known that, despite Mr. Pence’s and others’ denials, Mr. Flynn had in fact asked Russia not to escalate its response to the sanctions. Mr. Pence’s denial of this on national television, and his attribution of the denial to Mr. Flynn, put Mr. Flynn in a potentially compromised situation that the Russians could use against him.”
McCord is not arguing that the call in and of itself was material to a counterintelligence investigation. Instead McCord echoes what Yates herself testified to Congress in 2017—that because of the conversation about sanctions, Flynn had made himself vulnerable to blackmail following the Pence interview. But this is a strange argument: If the Russian government intended to blackmail Flynn over lying to Pence about an innocuous phone call with Kislyak, it would have had no leverage. Before the call, Flynn coordinated his response with the Trump transition team. Even Comey didn’t think much of the blackmail theory. On March 7, 2017, he told the House Intelligence Committee in closed session that it was “possible” Flynn could be blackmailed about his phone call but that it “struck me as a bit of a reach, though, honestly.”
Taking a step back, there is a more fundamental question: What business was it of McCord or Yates if Pence lied on Face the Nation? Why did they assume that Flynn lied as opposed to misremembered? Perhaps it was Pence who lied, because he was asked a question he found difficult to answer on national television. None of these obvious questions appear to have been asked by the Justice Department leadership. The only reason Yates’s testimony on this was accepted at face value in 2017 is that most of the Washington establishment was in a panic, stoked by the opposition-research dossier funded by the Hillary Clinton campaign and produced by Christopher Steele.
Indeed, that dossier was the primary piece of information in the FBI’s possession that suggested the Trump campaign sought a quid pro quo with Russia on the matter of Russian sanctions. The Steele dossier alleges that a low-level campaign aide named Carter Page was a conduit in Russia for dirt on Clinton and in exchange had secured a deal to lift more significant sanctions if Trump was elected. By the spring of 2017, FBI agents had ample evidence the dossier was hokum, as the December 2019 report by the Justice Department’s inspector general shows in great detail. Steele’s sources, upon being contacted by FBI agents, would not support its most explosive claims, and the initial wiretaps on Page failed to disclose any confirmation of Steele’s allegations. Nonetheless, the dossier was submitted four times to the secret FISA surveillance court to obtain and renew eavesdropping warrants on Page.
The FBI never sought a warrant to eavesdrop on Flynn. But the FBI was listening to Kislyak’s calls. Comey authorized that Flynn’s name would be unmasked on those transcripts of the December 29 call and shared the information with FBI leadership as well as the Office of the Director of National Intelligence. Obama also knew about the phone calls, as the January 5 meeting indicated. McCabe and Comey have both said that they learned about the calls after the intelligence community was tasked with trying to find out why Putin had not escalated in response to Obama’s decision to expel 35 Russian spies. Flynn’s request helped explain why. But there is no way a reasonable person could conclude that a move to prevent a -for-tat escalation was evidence that Flynn was a Russian agent or asset.
As most of the press homed in on whether Flynn discussed the sanctions Obama had imposed, Flynn told the Daily Caller that he did discuss the expulsion of the 35 Russian spies with Kislyak in his last interview as national-security adviser. “It wasn’t about sanctions. It was about the 35 guys who were thrown out,” he said. “So that’s what it turned out to be. It was basically, ‘Look, I know this happened. We’ll review everything.’ I never said anything such as, ‘We’re going to review sanctions,’ or anything like that.”
V.
It’s obviously fair to ask why, if Flynn hadn’t really lied, he would have pled guilty to one count of making false statements in his FBI interview. The plea itself makes no reference to Flynn saying the Trump administration would later review the sanctions—and as a matter of fact, the sanctions never were lifted. It says that Flynn lied to the FBI agents when he said he did not ask Kislyak to refrain from escalating the situation and that he did not remember “a follow-up conversation in which the Russian ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of Flynn’s request.”
It goes on to say Flynn lied to FBI agents about his requests of members of the UN Security Council either to delay or vote against a resolution pushed by the Obama administration chastising Israeli settlements. He made this request of Kislyak, who informed him that Russia would not oppose the resolution. Flynn never shared these details with the FBI agents who interviewed him on his fourth day on the job as national-security adviser.
From the perspective of the FBI’s investigation into possible coordination, collusion, or conspiracy between the Trump campaign and Russia, this is the thinnest of gruel. Nonetheless, the motion says that Flynn’s “false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation.”
Given what is known now, those words are more of a lie than anything Flynn said to the FBI agents who interviewed him. To recap: At this point in the investigation, the FBI had already investigated whether Flynn had been a witting or unwitting Russian agent and had found nothing. The bureau also had in its possession the transcript of Flynn’s call to Kislyak. And as Shea’s motion shows, Flynn’s communications to Kislyak on sanctions should have been considered evidence that he was not a Russian agent or asset.
The reason that Flynn put his name to something he knew was not true was that Mueller’s investigators were squeezing him on an unrelated matter.
In August 2016, Flynn took a contract to represent a Dutch firm known as Inovo BV on a project aimed at investigating and defaming Fetullah Gulen, a charismatic Turkish cleric who had become a mortal enemy of Turkey’s president, Recep Tayyip Erdogan, and was living in exile in Pennsylvania. In 2016, Erdogan survived a military coup he blamed on Gulen’s followers. Erdogan’s regime sought Gulen’s extradition back to Turkey, where he would almost certainly have faced the death penalty.
Taking that contract showed horrendous judgment on Flynn’s part. He was the Trump campaign’s national-security adviser and had no business getting himself in the middle of this. That said, it was a potential political problem for Trump, not the national-security threat that many in the resistance now say it was. It’s fair game for journalists and Democrats to make a stink about the Inovo contract. But it was highly unusual for Flynn’s missteps in this case to be the basis for a criminal prosecution on the grounds that Flynn had violated the Foreign Agents Registration Act (FARA).
Before Mueller was appointed special prosecutor, FARA violations were treated for the most part the way you’d treat a speeding violation. A 2016 Justice Department inspector general report found only seven criminal prosecutions for FARA violations in the half-century from 1965 to 2015. Most of the time, violators were told to amend their forms and at worst pay a fine.
Mueller decided to use FARA as a useful cudgel to nail people he wanted to flip to get them to spill the beans on Trump. He brought a FARA charge against former Trump campaign manager Paul Manafort, who was also convicted on more serious charges of money laundering and other crimes. Mueller’s team decided they could use the threat of a FARA prosecution to squeeze Flynn as well.
Flynn had initially registered the Inovo contract in August 2016 through a less stringent law known as the Lobbying Disclosure Act. He did so on the advice of his counsel at the time. And when Flynn took the contract, that advice was sound. The legal environment for FARA registrations was quite permissive at the time. But at the end of 2017, and with Mueller in hot pursuit and with unlimited resources, Flynn—and his son, Michael Jr.—could have found themselves facing years in prison. So Flynn, in financial ruin and wishing to get his son out of Mueller’s crosshairs, agreed to cooperate.
And cooperate he did. Before his first sentencing hearing at the end of 2018, Mueller’s team initially recommended no jail time for Flynn, in part because he was a good cooperative witness. Over time, though, Flynn began to regret his decision. Some of this was because of the failure of Mueller’s investigation to bring a single charge against any American for coordinating with Russia’s influence operation in 2016. Some of it was also because details about the government’s own misconduct in the investigation began to leak out. So in 2019, Flynn ended his relationship with his lawyers from Covington and Burling, the ones who had filed his initial FARA registration forms on the Inovo matter and who had also represented his partner Bijan Rafiekian, who had also been indicted on FARA violations.
Flynn also began to back out of his cooperation with the government’s case against Rafiekian. In July 2019, prosecutors decided they would not call Flynn as a witness and threatened to prosecute Flynn as a co-conspirator. At first Flynn’s lack of cooperation didn’t matter because that same month, a jury found Rafiekian guilty of being an unregistered agent for the government of Turkey. But the judge in the case overturned the jury verdict in a blistering judgment on the prosecution. “The government has failed to offer substantial evidence from which any rational juror could find beyond a reasonable doubt” that Rafiekian was an agent of Turkey
The judge’s ruling was significant for Flynn in one important respect. In 2017, during the run-up to Flynn’s plea agreement, the Wall Street Journal reported that Flynn and his son had been approached by Turkish government officials to try to kidnap Gulen and bring him back to Turkey in exchange for $15 million. A November 10 story in the Journal said that Mueller’s team was investigating the matter. Flynn’s lawyers have categorically said this episode never happened. There is no mention of the episode in the prosecution of Rafiekian. The one on-the-record source for this allegation was former CIA Director James Woolsey, who himself sought a contract with Turkey to defame Gulen.
