The belief that Michael Flynn was set up by the FBI has been backed up by a string of evidence in documents released by the Department of Justice (DOJ).
Flynn, a former head of the Defense Intelligence Agency (DIA) and former national security adviser to President Donald Trump, pleaded guilty in 2017 to one count of lying to the FBI.
On May 7, however, the DOJ dropped the case against him, saying that when the FBI interviewed Flynn on Jan. 24, 2017, the investigation into him was “no longer justifiably predicated” and “seems to have been undertaken only to elicit those very false statements and thereby criminalize Mr. Flynn.”
The motion to dismiss the case was accompanied by more than a dozen documents substantiating the decision.
The FBI opened a counterintelligence case on Flynn on Aug. 16, 2016 (pdf). The stated reason was public information that Flynn was an adviser to Trump, had “ties” to some entities “affiliated” with Russia, and visited Russia the year before.
After four months of investigating, the FBI couldn’t find any “derogatory” information on Flynn, a retired Army lieutenant general.
On Jan. 4, 2017, William Barnett, one of the agents managing the Flynn case, drafted a document to close the case, saying there were no more investigative leads to follow (pdf).
That afternoon, then-head of FBI counterintelligence operations, Peter Strzok, reached out to the Flynn case manager, urging him to keep the case open (the documents indicate the case manager was likely Barnett).
Then-FBI Director James Comey later said in a meeting with lawmakers that he had authorized the closing of the Flynn case, but that it was kept open because the bureau learned about Flynn’s calls with then-Russian Ambassador to the United States Sergey Kislyak.
“I think I had authorized it to be closed at the … end of December, beginning of January. And we kept it open once we became aware of these communications,” Comey told the House Intelligence Committee on March 2, 2017 (pdf). “There were additional steps the investigators wanted to consider.”
Flynn’s calls coincided with new sanctions imposed on Russia by President Barack Obama in late December 2016. Flynn’s lawyers were never given the transcripts of the calls, but the DOJ said he requested from Kislyak “that Russia avoid ‘escalating’ tensions in response to” the sanctions.
Russia responded by holding off on its retaliation for several months.
The morning of Jan. 4, 2017, Lisa Page, special counsel to then-FBI Deputy Director Andrew McCabe and who was involved in an extramarital affair with Strzok, sent an email to then-FBI general counsel James Baker (pdf).
“Code section at question,” the subject read, with “18 USC 953” in the body.
The number refers to the Logan Act, a 1799 law that prohibits Americans from conducting diplomacy on their own with countries that the United States has a dispute with.
Less than 10 minutes later, Strzok emailed Page the text of the statute—writing, “because I am awesome”—and attached a 2015 document about Logan Act from the Congressional Research Service.
“All the legislative history they cite does not involve incoming administrations,” he wrote, quoting from the document that “viability” of the statute may involve “constitutional issues, such as freedom of speech and right to travel.”
“You are awesome. Thank you,” Page replied and a few hours later, sent the text of the statute to McCabe without any mention of the constitutional issues.
In the afternoon, Strzok texted another FBI staffer about the need to keep the Flynn case open.
“We need to decide what to do with him w/r/t [with regards to] the [redacted],” he wrote. The “7th floor [was] involved,” referring to the FBI top leadership.
But there seemed to be no appetite at the DOJ to pursue a Logan Act violation. No one has ever been convicted of breaking the law and only two people were ever charged, the last one in 1852.
Mary McCord, then-head of the DOJ’s National Security Division (NSD), said she wasn’t thinking about a criminal investigation at the time, according to a report from her July 17, 2017, interview with the FBI and the special counsel office.
“It seemed logical to her that there may be some communications between an incoming administration and their foreign partners, so the Logan Act seemed like a stretch to her,” the report stated.
“The feeling among NSD attorneys was Flynn’s behavior was a technical violation of the Logan Act, but they were not sure this would have a lot of jury appeal, or if pursuing it would be a good use of the power of the Justice Department,” according to an Aug. 15, 2017, FBI report from an interview with former Deputy Attorney General Sally Yates.
“Yates had the impression the FBI was more eager to pursue prosecution initially,” the report stated.
McCord did call the Kislyak calls “concerning” and Yates labeled them “problematic.” Yet neither of them clearly explained what was “concerning” or “problematic” about them.
“Indeed, Mr. Flynn’s request that Russia avoid ‘escalating’ tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States,” said Timothy Shea, interim U.S. attorney for the District of Columbia, in the motion to dismiss the Flynn case.
In any event, with no Logan Act charge incoming, the Flynn case seemed dead in the water. But it still wasn’t closed. Nobody seems to have provided a good explanation of why.
“Nothing, to my mind, happens until the 13th of January,” Comey told the House committee.
‘Flood is Coming’
In fact, the week after the scramble to keep the Flynn probe open was one of the most consequential in American history, with national repercussions rippling for years to come.
The FBI, and Comey in particular, played a central role.
On Jan. 6, 2017, Trump was briefed by the then-Director of National Intelligence James Clapper as well as the heads of the FBI, NSA, and CIA on their “assessment” that Russia meddled in the election. They also said the Kremlin favored Trump in their influence campaign, although the NSA partially dissented from that assessment.
A declassified version of the report was released the same day, “a virtually unheard-of, real-time revelation by the American intelligence agencies that undermined the legitimacy of the president who is about to direct them,” The New York Times reported.
A two-page summary of the Steele dossier, a collection of unsubstantiated claims about supposed Trump–Russia collusion, was attached as an annex to that assessment.
The dossier was supposedly written by Christopher Steele, a former British spy. He was paid through intermediaries by the Democratic National Committee and the presidential campaign of former Secretary of State Hillary Clinton. Both Steele and his employers had for months peddled the dossier to the media, the FBI, the State Department, the DOJ, and Congress.
Following the Jan. 6 meeting, Comey privately briefed Trump on the most salacious allegation from the dossier; he didn’t give him the summary.
“I said there was something that Clapper wanted me to speak to PE [president-elect] about alone or in a very small group,” Comey wrote about the meeting in an email on Jan. 7, 2017, to senior FBI leadership, according to a May 21, 2018, release by Sen. Ron Johnson (R-Wis.), chairman of the Homeland Security and Governmental Affairs Committee.
“I then executed the session exactly as I had planned,” Comey wrote, adding, “I said media like CNN had them [the dossier content] and were looking for a news hook.”
As it seems, the FBI was aware that information about the Trump–Comey briefing was, in fact, the hook CNN would use.
“Flood is coming,” McCabe wrote on Jan. 8, 2017, in the subject of an email to senior FBI leadership.
“CNN is close to going forward with the sensitive story. … The trigger for them [CNN] is they know the material was discussed in the brief and presented in an attachment,” he wrote in the email.
Less than an hour later, McCabe emailed Yates and then-Principal Deputy Attorney General Matthew Axelrod with the subject line “News.”
“Just an FYI, and as expected, it seems CNN is close to running a story about the sensitive reporting,” he wrote.
On Jan. 10, 2017, Strzok wrote (pdf) to other senior FBI officials, “Per Rich, CNN to publish C material today between 4 and 5.”
That afternoon, CCN ran a story saying (incorrectly) that Trump was presented with a “two-page synopsis” of the dossier during the Jan. 6 briefing. Shortly after, BuzzFeed released one of the versions of the dossier itself.
Within hours, the collusion narrative was imprinted on much of the nation’s psyche. More leaks were coming that would build on that foundation.
On Jan. 12, 2017, The Washington Post’s David Ignatius published a column in which he said a “senior U.S. government official” told him that Flynn called Kislyak multiple times on Jan. 29, 2016. Ignatius suggested that if Flynn talked about the Russia sanctions, he may have violated the “spirit” of the Logan Act. Other media followed with their own reporting, repeating that narrative.
Under the enormous pressure to distance themselves from anything Russia-related, several Trump team members, including incoming Vice President Mike Pence, questioned Flynn about the calls. Flynn said he didn’t talk about sanctions and that’s what the team told the media.
The calls “had nothing whatsoever to do with the sanctions,” Pence told CBS News on Jan. 15, 2017, in an interview the network dedicated almost wholly to questions about Russia.
With that denial, the FBI effectively had Flynn trapped. The officials knew that Pence, a man known for closely guarding his reputation, told a lie on national television and that Flynn was responsible.
Yates and some others from the intelligence community wanted to inform the Trump team of Flynn’s predicament, she said. Her take was that the lie made Flynn “compromised,” because the Russians would know he lied.
It would have possibly led to Flynn’s firing, but the outcome was uncertain. After all, Trump held Flynn in high regard.
Comey seemed aware that the “compromise” angle was weak.
It was “possible,” he testified, that the lie made Flynn blackmailable, but “that struck me as a bit of a reach, though, honestly,” Comey said.
Comey blocked the idea of informing the White House. The Kislyak transcripts were the FBI’s information and he had the last word on who gets it, Yates said.
Instead, Comey had a more ambitious plan—to have Flynn interviewed by his agents.
“For some reason, [Flynn] hasn’t been candid with the Vice President about this,” Comey explained the need for the interview. “My judgment was we could not close the investigation of Mr. Flynn without asking him what is the deal here. That was the purpose.”
Yet, if the bureau really wanted to know why Flynn may have lied to Pence, it took step after step that seemed to defeat that purpose.
The officials didn’t plan at all to confront Flynn about what he told Pence, instead going to great lengths to cast the interview as a friendly chat between fellow government officials. If Flynn was to say something they knew wasn’t true, the agents would ask again, slipping in some words from the call transcripts, Strzok later told the FBI and the special counsel office. If Flynn didn’t catch on, they wouldn’t press again. They weren’t to confront Flynn about any discrepancies directly or show him the transcripts.
That approach didn’t sit well with Bill Priestap, then-FBI head of counterintelligence.
“What’s our goal? Truth/Admission or to—get him to lie, so we can prosecute him or get him fired?” he wrote down in notes dated Jan. 24, 2017, arguing the team should “rethink” its approach.
“We regularly show subjects evidence. With the goal of getting them to admit their wrongdoing,” he wrote. “I don’t see how getting someone to admit their wrongdoing is going easy on him.”
The bureau was risking its reputation, Priestap suggested.
“If we’re seen as playing games, WH [White House] will be furious. Protect our institution by not playing games,” he wrote.
His concerns were dismissed. What’s more, Comey went forward with the interview without consulting or even informing the DOJ (which later angered Yates, she said).
When McCabe called Flynn on Jan. 24, 2017, to set up the interview, Flynn readily agreed to have the agents over for a talk about the Kislyak calls. He noted that the FBI probably already knew what was said anyway.
“You listen to everything they [Russian representatives] say,” Flynn said, according to McCabe’s notes from that day (pdf).
McCabe said he told Flynn he wanted the interview done “as quickly, quietly, and discreetly as possible.” If Flynn wanted anybody to sit in, such as one of the White House lawyers, the DOJ would have to be involved, McCabe told him.
That was “egregious” behavior, according to Marc Ruskin, a 27-year FBI veteran and an Epoch Times contributor.
“To affirmatively go ahead and say that you don’t need to have an attorney present really goes beyond the bounds of anything that most agents in the past would have considered an acceptable behavior,” he said in a phone call.
Still, Flynn agreed to talk to the agents alone.
About two hours later, Strzok and Supervisory Special Agent Joe Pientka showed up at the West Wing of the White House for the interview.
Flynn was “relaxed and jocular” with the agents, “unguarded” during the interview, and “clearly saw the FBI agents as allies,” Strzok later said.
As part of the rather sprawling interview, Flynn denied talking to Kislyak about sanctions. The agents asked again: Did he ask for Russia to not engage in “tit-for-tat?”
He seemed less sure.
Flynn said in a Jan. 29 declaration to the court he still doesn’t remember talking to Kislyak about sanctions.
“I told the agents that ‘tit-for-tat’ is a phrase I use, which suggests that the topic of sanctions could have been raised,” he said.
The FBI and the DOJ seemed none the wiser after the interview.
The agents came back with the impression “that Flynn was not lying or did not think he was lying,” Strzok said.
“Do you believe that Mr. Flynn lied?” Rep. Jackie Speier (D-Calif.) asked Comey during the committee meeting.
“I don’t know. I think there is an argument to be made that he lied. It is a close one,” he replied.
DOJ prosecutors were skeptical that Flynn just didn’t remember, according to Yates. They asked the FBI if it wanted to interview Flynn again—a common practice in cases when it seems the interviewee lacked candor.
While the FBI not only didn’t want another interview, Yates “recalled them being pretty emphatic about it,” the report from her interview stated. She said she didn’t know why.
Despite previously insisting on the opposite, Comey was suddenly all for informing the White House of Flynn’s situation.
He “said it was a great idea” for Yates to talk to the White House counsel, “and agreed a ‘lawyer to lawyer’ talk made sense,” according to Yates.
Yates and McCord met with Don McGahn, who was White House counsel at the time, and his associate on Jan. 26, 2017. They told them that Flynn lied to Pence and that the FBI interviewed him in the White House two days prior.
McCord described McGahn as “shocked” by the news. Flynn was fired two weeks later.