By Byron York
In March 2017, then-FBI Director James Comey briefed a number of Capitol Hill lawmakers on the Trump-Russia investigation. One topic of intense interest was the case of Michael Flynn, the Trump White House national security adviser who resigned under pressure on Feb. 13 after just 24 days in the job.
There were widespread reports that Flynn had lied to Vice President Mike Pence about telephone conversations that he, Flynn, had with Russian Ambassador Sergey Kislyak during the transition in late December 2016. On Jan. 24, 2017, two of Comey’s FBI agents went to the White House to question Flynn, and there was a lot of speculation later that Flynn lied in that interview, which would be a serious crime.
“The Jan. 24 interview potentially puts Flynn in legal jeopardy,” the Washington Post reportedin February. “Lying to the FBI is a felony offense.”
There was also a lot of concern in Congress, at least among Republicans, about the leak of the wiretapped Flynn-Kislyak conversation. Such intelligence is classified at the highest level of secrecy, yet someone — Republicans suspected Obama appointees in the Justice Department and intelligence community — revealed it to the press.
So in March, lawmakers wanted Comey to tell them what was up. And what they heard from the director did not match what they were hearing in the media.
According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.
Nine months later, with Comey gone and special counsel Robert Mueller in charge of the Trump-Russia investigation, Flynn pleaded guilty to one count of making false statements to the FBI in that Jan. 24 questioning.
What happened? With Flynn awaiting sentencing — that was recently delayed until at least May — some lawmakers are trying to figure out what occurred between the time Comey told Congress the FBI did not believe Flynn lied and the time, several months later, when Flynn pleaded guilty to just that.
None of those congressional investigators has an answer; they’re baffled by the turn of events. But they know they find the Flynn case troubling, from start to finish.
The questioning in that Jan. 24 interview apparently revolved around the Flynn-Kislyak phone conversations. The first thing to remember is that it appears Flynn did nothing wrong in having those talks. As the incoming national security adviser, it was entirely reasonable that he discuss policy with representatives of other governments — and Flynn was getting calls from all around the world.
So even if Flynn discussed the hot issue of U.S. sanctions against Russia with Kislyak, that was OK. “I don’t have a problem with that,” former Bush national security adviser Stephen Hadley said in February 2017. “I don’t see what would be wrong if [Flynn] simply said, look, don’t retaliate, doesn’t make sense, it hurts my country, it makes it harder for us as an incoming administration to reconsider Russia policy, which is something we said we’d do. So just hold your fire and let us have a shot at this.”
Indeed, it appears the FBI did not think Flynn had done anything wrong in the calls. On Jan. 23, the Washington Post reported that the FBI had reviewed the Flynn-Kislyak calls and “has not found any evidence of wrongdoing or illicit ties to the Russian government.” (The calls had been intercepted by U.S. intelligence because the U.S. monitored the Russian ambassador’s communications — something which Flynn, a former chief of the Defense Intelligence Agency, surely knew.)
Still, Flynn’s conversation had the attention of the Obama Justice Department, and in particular of deputy attorney general Sally Yates, who reportedly believed Flynn might have violated the Logan Act, a 218 year-old law under which no one had ever been successfully prosecuted. (Two people were charged in the 19th century, but the cases were dropped.)
Despite the high level of classification, word of the Justice Department’s concerns got to the press. On Jan. 12, Washington Post columnist David Ignatius reported that Flynn and Kislyak had talked. “What did Flynn say, and did it undercut U.S. sanctions?” Ignatius asked. “The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about ‘disputes’ with the United States. Was its spirit violated?”
Three days later, on Jan. 15, Vice President-elect Mike Pence (remember, this was all happening before the Trump administration took office) denied that Flynn had discussed sanctions with the Russian ambassador. “They [Flynn and Kislyak] did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia,” Pence told CBS.
On Jan. 20, Donald Trump became president. On Jan. 22, the Wall Street Journal reported that “U.S. counterintelligence agents have investigated communications” between Flynn and Kislyak. The investigation “aimed to determine the nature of Mr. Flynn’s contact with Russian officials and whether such contacts may have violated laws.”
On Jan. 24, the Justice Department — the Obama holdover Yates had become the acting attorney general — sent two FBI agents to the White House to question Flynn, who talked to them without a lawyer present.
It has sometimes been asked why Flynn, a man long familiar with the ways of Washington, would talk to the FBI without a lawyer. There seems to be no clear answer. On the one hand, as national security adviser, Flynn had plenty of reasons to talk to the FBI, and he could have reasonably thought the meeting would be about a prosaic issue involved in getting the new Trump National Security Council up and running. On the other hand, the media was filled with talk about the investigation into his conversations with Kislyak, and he might just as reasonably have thought that’s what the agents wanted to discuss. In any event, Flynn went ahead without an attorney present.
In addition, it appears the FBI did not tell White House officials, including the National Security Council’s legal adviser or the White House counsel, that agents were coming to interview the national security adviser over a potentially criminal matter.
Two days later, on Jan. 26, Yates and a high-ranking colleague went to the White House to tell counsel Don McGahn about the Flynn situation. “The first thing we did was to explain to Mr. McGahn that the underlying conduct that Gen. Flynn had engaged in was problematic in and of itself,” Yates testified in a May 2017 appearance before a Senate Judiciary Committee subcommittee. That was an apparent reference to the Logan Act, although Yates never specifically said so. “We took him [McGahn] through in a fair amount of detail of the underlying conduct, what Gen. Flynn had done.”
Yates then explained to McGahn her theory that Flynn might be vulnerable to blackmail. The idea was that Flynn had discussed sanctions with Kislyak, which of course the Russians knew. And then if Flynn lied to Pence, and Pence made a public statement based on what Flynn had told him, then the Russians might be able to blackmail Flynn because they, the Russians, knew Flynn had not told the vice president the truth.
It was a pretty far-fetched notion, but, along with the never-successfully-prosecuted Logan Act, it was apparently the basis upon which the FBI went inside the White House to do an unannounced interview of a key member of the new administration.
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