May 2, 2020

The FBI Set Flynn Up to Preserve the Trump–Russia Probe

Perjury trap was not score-settling. To investigate the president, it was a practical necessity to sideline his chosen national-security adviser.

by Andrew C. McCarthy
NationalReview.com

Once you grasp that fundamental fact, it becomes easier to understand the latest disclosures the Justice Department made in the Flynn case on Thursday. They are the most important revelations to date about the FBI’s Trump–Russia investigation, code-named Crossfire Hurricane.

The new disclosures, in conjunction with all we have learned in the last week, answer the all-important why question: Why was Flynn set up?

The answer to that question has been clear for a long time: The FBI set a perjury trap for Flynn, hoping to lure him into misstatements that the bureau could portray as lies. In the frenzied political climate of the time, that would have been enough to get him removed from his new position as national security adviser (NSA), perhaps even to prosecute him. On that score, the new disclosures, startling as they are to read, just elucidate what was already obvious.

But why did they do it? That has been the baffling question. Oh, there have been plenty of indications that the Obama administration could not abide Flynn. The White House and the intelligence agencies had their reasons, mostly vindictive. But while that may explain their gleefulness over his fall from grace, it has never been a satisfying explanation for the extraordinary measures the FBI took to orchestrate that fall.

Concealing Information ‘as It Relates to Russia’
To understand what happened here, you have to understand what the FBI’s objective was, first formed in collaboration with Obama-administration officials. That includes President Obama, Vice President Biden, and Flynn’s predecessor, national-security adviser Susan Rice, with whom then-Acting Attorney General Sally Yates and then-FBI director James Comey met at the White House on January 5, 2017 — smack in the middle of the chain-of-events that led to Flynn’s ouster. Recall Rice’s CYA memo about the meeting: “President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia� (emphasis added). Rice wrote those words on January 20, at the very time the FBI was making its plan to push Flynn out.

The objective of the Obama administration and its FBI hierarchy was to continue the Trump–Russia investigation, even after President Trump took office, and even though President Trump was the quarry. The investigation would hamstring Trump’s capacity to govern and reverse Obama policies. Continuing it would allow the FBI to keep digging until it finally came up with a crime or impeachable offense that they were then confident they would find. Remember, even then, the bureau was telling the FISA court that Trump’s campaign was suspected of collaborating in Russia’s election interference. FBI brass had also pushed for the intelligence community to include the Steele dossier — the bogus compendium of Trump–Russia collusion allegations — in its report assessing Russia’s meddling in the campaign.

But how could the FBI sustain an investigation targeting the president when the president would have the power to shut the investigation down?

The only way the bureau could pull that off would be to conceal from the president the fullness of the Russia investigation — in particular, the fact that Trump was the target.

That is why Flynn had to go.

President Trump was a political phenomenon but a novice when it came to governance. He was not supported by the Republican foreign-policy and national-security clerisy, which he had gone out of his way to antagonize in the campaign. The staff he brought into the government consisted mainly of loyalists. There were some skilled advisers, too, but their experience was not in the national-security realm.

The exception was Flynn. The former head of the Defense Intelligence Agency knew how the spy agencies worked. He knew where and how they kept secrets. He had enough scars from tangles with the intelligence bureaucracy that he knew how the game was played — how intelligence officials exploited information, or selectively withheld it.

Someone as smooth as Director Comey might be able to dissuade President Trump from inquiring too deeply into the Russia investigation. Trump would be satisfied as long as Comey kept assuring him not to worry because the bureau was not investigating him personally — even though it was. The unseasoned Trump staff would also be easy to brush back: Just tell them that the FBI was rigorously independent, and that if the White House poked around too much, Trump staffers would be accused of political meddling. The staff was green enough to be bullied into minding its own business even about the FBI’s counterintelligence mission, in which the bureau is supposed to serve the White House, not the other way around.

But Flynn was different. After 33 years in the Army chain of command, the decorated former combat commander grasped that the FBI, like other executive-branch components, worked for the president. As NSA, Flynn would ensure that Trump ran the intelligence agencies, not be run by them. If Flynn wanted to know what was going on in intelligence investigations, he’d be able to find out — he wouldn’t take Jim Comey’s “no� for an answer. He was loyal to Trump, not to the intelligence establishment or the “policy community.� And he was White House staff, not a cabinet appointee — i.e., he did not have to wait interminably on an iffy Senate confirmation; he would be on the job from the very first moments of the new administration, getting his arms around what the executive branch intelligence apparatus was up to.

Collusion Narrative and the Sanctions Controversy
The eleven pages of documents the Justice Department released on Thursday are a treasure trove for analysts who’ve followed the collusion caper. There will be time to discuss various aspects of them, particularly the matter of how disgraced former agent Peter Strzok managed to keep open the Flynn thread of the Russia investigation (“Crossfire Razor�) after the FBI had seemingly closed it on January 4 — the day before Comey’s Oval Office meeting with Obama & Co. For now, though, let’s focus on that why question.

Upon the new president’s January 20 inauguration, Flynn was the matter of most immediate urgency to the FBI. That was not because the agents were trying to make a case on him. It was because he was already starting his new job as Trump’s NSA.

It was also a frenzied time, with the media and Democrats pushing the collusion narrative, creating an uproar over whether Flynn had discussed anti-Russia sanctions with Ambassador Kislyak. Flynn publicly said the subject did not come up. Vice President Pence publicly backed him. But the FBI had had surveillance coverage on the Russian envoy. The bureau knew the issue of sanctions had been discussed. Though Flynn had said nothing inappropriate on the subject, its mere mention would become a huge political problem.

We do not know for sure what Flynn’s conversation was with Pence. Maybe he misinformed the vice-president. Maybe there was a garble (the difference between didn’t come up and wasn’t discussed inappropriately could easily be confused). Or maybe Pence decided it was politically expedient to back Flynn’s account, regardless of whether it was true. Whatever happened, such political matters would not be the business of the Justice Department and the FBI in most administrations. Can anyone imagine the Obama Justice Department and FBI getting alarmed that the president, National Security Adviser Rice, and Secretary of State Clinton were publicly saying things about the Benghazi attack that the FBI knew to be untrue?

This was the Trump administration, however, so Obama holdover officials, such as Acting AG Yates, would pose as aghast that Pence was publicly echoing Flynn’s misstatement. Even though they knew the misstatement was trivial . . . which explains why the FBI moved to close the Flynn investigation on January 4, after Flynn’s conversations with Kislyak — they plainly knew Flynn was not a Kremlin mole.

More to the point, the newly revealed documents include emails between Strzok and other FBI officials from the weekend before the FBI’s January 24 grilling of Flynn.

Most of the press attention has been about the planning for that grilling — about how brazenly the bureau spoke of trying to get Flynn to lie, about the renegade scheme to orchestrate an interrogation of Flynn without informing the Trump White House, as protocol required. That’s significant, but it misses the bigger picture. The January 21–22 emails show that the FBI did not start out with that perjury-trap plan. They ended up with the perjury-trap plan because there was no practical alternative if the bureau was to achieve its objective — the withholding of information about Russia from the incoming Trump team, in order to keep the Trump–Russia investigation alive.

No Alternative
The perjury trap was set for Flynn out of necessity. If the Justice Department had informed the White House about recordings of Flynn and Kislyak discussing sanctions, and the FBI then asked for permission to interview Flynn, the bureau knew permission was sure to be denied. Flynn would be untouchable, and free to discover the entirety of the Obama administration’s extensive but secret effort to depict Trump and his minions as Russian operatives — an effort the FBI was determined to keep pursuing.

If no way could be found to sideline Flynn (the way Attorney General Jeff Sessions would later be sidelined), then Flynn was going to find out about Crossfire Hurricane. He was going to be a hands-on NSA, so that was a given.

Strzok thus started out the weekend by proposing that Flynn be given a “defensive briefing.� This is when an official is advised that he and his cohorts are the targets of some espionage or criminal operation. Here, it would be the purported Russian infiltration of the Trump campaign and the new administration.

Understand: It is not that the FBI wanted to give Flynn this information; it is that there was no practical alternative. Under the circumstances, the FBI would have to tell Flynn directly. But that raised the question: Could it be done in a way that would scare him off, make him feel vulnerable, marginalize him?

On Saturday, Strzok started out by proposing to Bill Priestap, the bureau’s counterintelligence chief, that Flynn be given “a defensive briefing . . . about CROSS WIND and [redacted].� “Cross Wind� — like “Crossfire Razor� and “Crossfire Typhoon,� another code name in the new documents — appears to have been a subset of the overarching Crossfire Hurricane probe (the latter was depicted as an “umbrella�; underneath it were the “Cross� subsets — such Trump campaign figures as Flynn, Carter Page, and George Papadopoulos).

Strzok conceded he was “not certain� that a defensive briefing was the right approach. Maybe, he suggested, such a briefing could be floated as a “pretext�; it would get them in the door, then they’d use the opportunity to “interview� Flynn — i.e., to hint that he might be in legal jeopardy over his contacts with Kislyak, then pepper him with questions, hoping he’d say something that compromised him. Or maybe they could just give Flynn a defensive briefing in the usual sense — i.e., “put him on notice, and see what he does with that.� The idea would be: share a bit of information, then keep tabs on Flynn to see if he spilled the beans to the suspects. That can be an effective way of proving a conspiracy.

While the emails are heavily redacted, we can glean that the sanctions issue hung heavily. The Justice Department seemed to want to alert Vice President Pence that Flynn had misled him. Playing this out, Strzok speculated about what would happen if DOJ decided that “VPOTUS or anyone else� needed to be told “about the [redacted]� — what’s redacted, I suspect, is a reference to the recorded Flynn–Kislyak discussions. Strzok surmised that if the Trump White House were told, the bureau would lose any chance to interview Flynn. The agents might believe they needed to take an “overt� investigative step, such as a pretextual defensive briefing that enabled them to interrogate Flynn; but if the Trump White House had been alerted, it could “specifically direct us not to.� Trump would probably keep Flynn in place, and the bureau would be powerless to keep the NSA from digging into the Russia probe.

On Sunday morning, having heard Strzok out, an official whose identity is blacked out sent a heavily redacted email to Strzok and Lisa Page (FBI deputy director Andrew McCabe’s counsel, and Strzok’s paramour). Because of Flynn’s NSA position, the unidentified official acknowledged, standard procedure would call for “tell[ing] him “about Wind and [redacted].� Yet, the official cautioned, “I’d be interested in letting that play out a bit before he tells them and the whole thing goes underground.� Translation: Once we tell Flynn, then Flynn will tell his administration superiors, and that will derail the FBI’s Trump-Russia investigation. Then, in what may be a reference to the recorded communications about sanctions between Flynn and Kislyak, the official conceded, “if we usually tell the WH [White House], then I think we should do what we normally do.� But the dilemma remained: Agents “need[ed] to debrief or interview Razor [Flynn],� but they could be “told not to� if the White House were given prior notice.

As the weekend wound down, FBI officials could not square the circle. Try as they might, they could not figure out a way to brief Flynn about any aspect of Crossfire Hurricane, or to alert the White House about the Flynn–Kislyak sanctions discussion. When game-planned, each proposal along those lines led to the virtual certainty that the bureau would be told not to question Flynn. He would keep his job, and be poised to inquire into the full extent of the Trump–Russia investigation.

Going Rogue
By Monday, January 23, the FBI’s top hierarchy had concluded that the only solution was to go rogue: They would approach Flynn without alerting anyone ahead of time, not even the Justice Department and certainly not the White House. It was the same reasoning they’d used in July 2016, when Comey gave his infamous press conference about the Hillary Clinton emails investigation, in violation of Justice Department guidelines: If you ask permission to do something that is against the rules, you might be told no; but if you just act audaciously, your superiors may not like it, but they’ll have to accept it — otherwise they’ll look like they’re obstructing the FBI.

And since this was going to be their only shot at Flynn, they had to try to make it a kill shot. They’d do a perjury trap. Flynn would be grilled about his conversations with Kislyak that had become such a media-driven controversy. But the bureau would not play the recordings for him. They would not refresh his recollection. They would not ask him to go line-by-line to help them understand the conversation. That is what they would do in a normal investigation, if they were really trying, say, to figure out what Russia was up to. The goal here was not to advance anyone’s understanding.

The goal was to get Flynn to lie. Not to lie so they’d have leverage to threaten a prosecution and thus pressure Flynn to reveal vital evidence he’d been concealing. They wanted him to lie for the sake of lying — so they could get rid of him.

To better the odds that he would agree to talk and make inaccurate statements that could be portrayed as willful falsehoods, the FBI would not tell him the purpose of the interview. Agents would not formally advise him of his rights, as they would in a normal case, even if they were dealing with a real criminal. They would just buzz him with questions about what exactly was said, in conversations that had occurred weeks before, at a time when Flynn was having hundreds of similar conversations. They would press him about what exact words had been uttered, even though they knew the exact words because they had recordings. They would try to put him in fear that they could prove the falsity of his public statements about not discussing sanctions. They would put him in fear that he could be prosecuted for violating the Logan Act (an absurd suggestion, but Flynn is not a lawyer and many commentators were discussing this moribund, constitutionally suspect provision as if it were a real crime). In the hotly partisan collusion climate of the time, they would make Flynn understand he could be framed as a sinister collaborator with Russia.

In sum, the FBI could create a scenario in which (a) Flynn might be subject to prosecution, (b) there could be grounds for terminating him, and (c) he would surely be seen as too conflicted about Russia to be made privy to details of the bureau’s Trump–Russia investigation.

Checkmate
The text messages and notes disclosed in the last week show that not everyone was comfortable with this plan. Bill Priestap, the counterintelligence chief, expressed deep misgivings. The objective of the plan seemed unclear, even improper: Were they trying to advance an investigation in good faith, or just “get [Flynn] to lie so we can prosecute him or get him fired?� Why were they not going to refresh Flynn’s recollection with the recording or a transcript, as the FBI would do with similarly situated interviewees? Why did the bureau think it needed to be so “aggressive� with Flynn?

Strzok and Page fretted in text messages on Monday, January 23, that Priestap was not getting the picture. His protests were irking McCabe. By Tuesday morning, a few hours before the January 24 interview, the deputy director was even more frustrated because Priestap had repeated his concerns to Director Comey. If Comey wavered, the plan could be scotched.

The director did not waver. The FBI’s top officials met at headquarters. Comey approved the plan to have Strzok and agent Joe Pientka visit Flynn at his office — no heads-up to others at the White House would be provided. McCabe was to call Flynn to arrange the meeting, assisted by Strzok in thinking through what to tell the NSA. The idea was to put Flynn at ease — make him feel like it would just be a chat between veteran national-security guys, not a criminal investigation; discourage Flynn from getting a lawyer; disabuse him of any thought of involving the White House counsel or chief-of-staff. Just a quick meeting so they could put to rest all this Russia noise in the media. No big deal.

The rest is history.

Acting Attorney General Yates was not given notice that would have triggered an obligation to alert White House counsel Don McGahn. By the time she went to see White House counsel McGahn two days later, she was in a position to say not only that Flynn had discussed sanctions with Kislyak, putting Vice President Pence in an embarrassing position; she was able to add that Flynn had been interviewed by the FBI.

Not immediately perceiving the magnitude of a revelation that the FBI had just interrogated the president’s NSA, in the White House and without getting clearance, McGahn quipped, “How did he do?� Yates has testified that she “explain[ed] to Mr. McGahn that the underlying conduct that General Flynn engaged in was problematic in and of itself� — i.e., the specious Logan Act angle that Flynn had illegally consulted the Russians without notifying the Obama administration. She also fatuously claimed that Flynn could conceivably be subject to Russian blackmail — as if the Russians did not assume the U.S. government had a recording of the Flynn–Kislyak conversation (something they’d have assumed even if it hadn’t already been leaked to the Washington Post). Yates indicated that these problems with Flynn’s credibility and capacity to function as NSA had not been cleared up, despite the FBI’s interview. As McGahn heard Yates out, he was already asking whether she thought Flynn should be fired.

NSA Flynn’s days were numbered. He was frozen out of anything to do with Russia. The collusion chatter went into overdrive. On February 9, the New York Times reported, based on leaks from the usual “current and former American officials,� that Flynn and Kislyak had indeed discussed sanctions. Four days later, the president reluctantly cashiered his chosen national-security adviser, one of few allies he had in a virulently Trump-hostile intelligence community.

With the obstacle out of the way, the objective was achieved: Flynn was gone, and the Trump–Russia investigation continued.

http://www.nationalreview.com/2020/05/fbi-set-up-michael-flynn-to-preserve-trump-russia-probe/

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