If Nothing Bad Was Said, Why Haven’t We Seen Transcripts Of The Flynn-Kislysk Conversation?

Ken AshfordL'Affaire Russe, Trump & AdministrationLeave a Comment

There’s a giant hole in Bill Barr’s motion to dismiss the Mike Flynn prosecution: the call transcripts of the General’s calls with Sergey Kislyak.

The Timothy Shea-signed motion claimed that the transcripts showed “arms-length communications” which provided no suggestion that Flynn might be “directed and controlled” by Russia.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. 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. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2. They provided no factual basis for positing that Mr. Flynn had violated FARA. Nor did the calls remotely transform Mr. Flynn into a “viable candidate as part of the larger … umbrella case” into Russian interference in the 2016 presidential election. Ex. 1 at 3.

Significantly, Shea doesn’t cite the transcripts here! He cites the Electronic Communication opening the investigation against Flynn and the draft EC closing the Flynn case written 20 days before the Flynn interview. Moreover, he mis-cites the opening EC so as to suggest (as he does elsewhere in the memo), falsely, that Flynn was only being investigated under FARA, which usually has a public component, and not 18 USC 951, which more often does not.

This, then, is an assertion for which Barr provides no evidentiary backup.

Barr makes the assertion in a filing that includes several pieces of evidence that directly conflict with this judgment.

As I’ve noted, Mary McCord thought the idea of a call between the incoming National Security Advisor and the Russian Ambassador was “logical” until she reviewed the transcript of the call. “After reading them, she felt they were ‘worse’ than she initially thought,” in part because, “Flynn proactively raised the issue of sanctions.”

The Sally Yates 302 seems to suggest that as soon as Andrew McCabe read the transcripts it was clear Flynn was lying because he didn’t really engage in the conversation until sanctions came up (a view that is entirely consistent with McCord’s view, though Barr did not provide McCabe’s 302 for us to compare more directly).

This passage may also suggest that Peter Strzok and Joe Pientka did not read the full transcripts of the calls before the interview, which would explain why they might have relied on whether Flynn gave indications he was lying. If that’s true, it would also undermine other key claims made in this motion, most notably that the agents knew what the transcripts said.

As for Yates herself, she provided Don McGahn several reasons why she believed these transcripts were troubling. Part of that description, as well as two of the examples she provided to substantiate the description, are redacted.

But Yates is specific: the “back and forth” between Kislyak and Flynn was contrary to the descriptions Flynn had offered publicly about the calls. Importantly, Yates’ description rebuts the Shea motion’s claim that this was an “arms-length” conversation.

Which is to say, in a key passage dismissing the possibility that the call transcripts included evidence that Flynn might have a relationship with Russia that could damage national security, the motion provides no evidence and in fact mis-cites something inapt as proof. But elsewhere, the filing does provide evidence about the call transcripts, and that evidence directly refutes the claim. Moreover, the filing redacts a number of other passages that go directly to the claim.

Importantly, whether or not the transcripts showed some reason to think Flynn’s relationship with Russia might affect national security is not an issue that Barr can invoke exclusive Executive judgment on, something on which judges generally defer to the Executive. The record shows that two Acting Attorneys General — one (Rod Rosenstein) appointed by Trump — already deemed the transcripts to include such evidence. Here, Barr isn’t even on the record making the claim. Just an Acting US Attorney who has not been Senate confirmed is.

A year ago, Judge Emmet Sullivan ordered the government to provide the transcripts of the calls between Flynn and Kislyak.

The government is hereby ORDERED to file on the public docket in this case the transcript of the “voicemail recording” referenced in the 75 Addendum to Government’s Memorandum in Aid of Sentencing and the transcripts of any other audio recordings of Mr. Flynn, including, but not limited to, audio recordings of Mr. Flynn’s conversations with Russian officials, by no later than May 31, 2019.

In response, the government obliquely said no, because they were not relying on those recordings for sentencing, effectively pointing out that no claims entered into evidence had relied on the transcripts (by the time Flynn pled guilty, he himself had provided evidence that he lied, and so they didn’t need to rely on the transcripts).

The government further represents that it is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record.

Now, however, the transcripts are utterly central to the claims the government is making. Indeed, the only evidence about the transcripts submitted with this motion rebuts the government’s claim.

Emmet Sullivan would be totally within his authority to require the government to provide the actual evidence on which they make at this point unsubstantiated claims in this filing.

Mike Flynn has been demanding these transcripts for quite some time. Given the declassification spree that Barr and Ric Grenell have been on, I would imagine they would have been made public if they helped Flynn at all. So I’m guessing Yates and McCord provided a more accurate description of these transcripts than Timothy Shea.

Anyway, the hearing is coming up and here are 13 questions we would ask of government counsel if we were Judge Sullivan:

  1. One striking feature of your brief is that it does not seem to allege that any of Flynn’s constitutional rights were violated or that you are conceding that any government action with respect to this investigation was illegal. Am I reading the government’s position correctly that you wish to dismiss this case without conceding that Flynn’s rights were actually infringed?
  2. Can you identify another case in which the government has argued for the dismissal of a guilty plea in the absence of either newly discovered evidence of actual innocence or the discovery of some sort of infringement of the defendant’s constitutional rights?
  3. As I understand your position, you are taking the view that Flynn’s case should be dismissed because the investigation lacked a proper predicate at the time the FBI interviewed him, and that his lies thus could not have been material. Are you aware of any other case in which the government has asked for dismissal of any charge on the ground that the investigation lacked a proper predicate? And are you aware of any other circumstances in which the government, in a false-statements case, sought dismissal because the supposed lack of a predicate for the investigation made the lies supposedly immaterial?
  4. The federal government commonly charges defendants with lying to investigators. Does the department intend to perform similar analyses of the predication and materiality of past false-statements cases and seek dismissals of other matters that may currently be pending presentencing that may run afoul of its new position?
  5. In arguing that the investigation was not properly predicated, the government points to documentation of internal FBI discussions concerning whether or not to close its probe into Flynn—discussions that took place before the bureau learned of Flynn’s call with the Russian ambassador. This knowledge, in turn, prompted the FBI to continue its work and ultimately seek an interview with Flynn. The phone call, the government states, was not an adequate predicate for continuing the probe. Is the government’s position that, as a general matter of law or policy, the question of predication must be evaluated anew at each step of an investigation merely because there has been discussion of closing a case? Can the government cite another case in which it has ever taken that view?
  6. The FBI decided to interview Flynn after discovering his phone call with Ambassador Kislyak and learning that Flynn had lied about the matter to Vice President Mike Pence and White House Press Secretary Sean Spicer, both of whom then unknowingly repeated the lie to the public. Justice Department officials have since testified under oath that they worried this placed Flynn at risk of blackmail by the Russian government—because the Kremlin would, of course, know that Flynn had indeed spoken with Kislyak. Does the government really take the view that it would not be a counterintelligence threat for the Russian Federation to know that the national security adviser had lied to the vice president about contacts with its government related to election interference and sanctions? And does it really take the view that it is actually lawful to lie to the FBI in such an investigation?
  7. Robert S. Litt, who served as general counsel to the Office of the Director of National Intelligence through the end of the Obama administration and was thus a sitting intelligence official during the relevant period, has posed the following hypothetical:

    Someone who holds a grudge against you calls an FBI office and says that you are a Russian agent, providing fictitious details of invented meetings you have had with agents from Russia’s Federal Security Service. Before that call, the FBI had no information at all about you—let alone an open predicated investigation—but follows up with a public records search and an interview of you, and determines that there is no basis to the claim.

    The logic of the department’s position in the Flynn case is that the person who maliciously reported you to the FBI could not be prosecuted for making a false statement, because at the time the statements were made, those statements “were not ‘material’ to any viable counterintelligence investigation … initiated by the FBI.” Or, to put it differently, the FBI can’t investigate whether someone is a Russian agent unless it already has evidence that the person is a Russian agent.

    Is this a correct statement of the government’s position? And if not, why not?
  8. In your brief, you argue that even if the statements were material, the “government does not believe it could prove that Mr. Flynn knowingly and willfully made a false statement beyond a reasonable doubt.” Flynn, as you know, twice admitted in open court that he lied, and he signed a statement of the offense that admitted, “In truth and in fact … Flynn then and there knew” that his statements were untrue when he made them to the FBI. What’s more, the charging document to which he pled guilty specifies that his actions were knowing and willful. Your brief makes no mention of the fact that such admissions by Flynn are themselves compelling evidence of his guilt. Do you doubt that they are admissible evidence that could be used against him at trial? And why did the government not take account of them as evidence in determining it would be unable to prove its case?
  9. The motion to dismiss this case is signed not by any career official of the Justice Department, but only by Timothy Shea, the U.S. attorney for the District of Columbia, who is a political appointee. Why did no career Justice Department official, including the assistant U.S. attorneys who have been litigating the case since it was transferred back to the Justice Department from the Special Counsel’s Office, sign the motion?
  10. In particular, I noticed the motion by Brandon Van Grack to withdraw from this case. Van Grack, a career prosecutor, worked on Special Counsel Robert Mueller’s team and has been on this case since the plea agreement was first filed. Indeed, he was one of the signatories to the plea documents. Can you explain to me why Van Grack wishes to withdraw from the case after working on it for so long?
  11. While no career officials of the department appear to have participated in this decision, a number of political officials did. As I understand it, the attorney general himself asked the U.S. attorney in the Eastern District of Missouri, Jeffrey Jensen, to review the case. Jensen recommended dismissing it. And Attorney General William Barr accepted that recommendation, leaving Shea to file the brief currently before me. Barr, Shea, and Jensen are all political appointees. Am I to understand that all of the relevant players in this decision to dismiss a plea agreement whose lawfulness the government’s brief does not seem to challenge were political appointees?
  12. The plea agreement between the government and Flynn specifies that the government cannot further charge Flynn for any of the conduct outlined in the plea documents. This includes not merely Flynn’s false statements about his communications with Russian Ambassador Sergey Kislyak concerning sanctions, but also Flynn’s operating as an unregistered foreign agent for the benefit of Turkey and his false statements both about that and about his negotiations surrounding a U.N. Security Council resolution. The plea agreement, however, also contains a provision specifying that if Flynn “fails specifically to perform or to fulfill completely each and every one of [his] obligations under this Agreement,” the government’s obligations under the plea deal cease.

    Before the government sought to dismiss this case, Flynn filed a motion before the court to withdraw his guilty plea. Is the government’s view that Flynn violated his agreement by seeking to withdraw his plea? In other words, if I grant the government’s motion, is it the government’s view that a future attorney general could refile the charges—other than the specific false-statements charge I am being asked to dismiss—against Flynn that the original plea agreement immunized him against? Or does the government take the view that the original immunity provision of the plea agreement is still in force?
  13. Finally, can you assure me that the many scores of times President Trump has expressed sympathy for Flynn and stated his belief that his former national security adviser was wronged by the FBI have nothing whatsoever to do with the decision by the Justice Department that the continuation of this prosecution would not, as the department asserts, “serve the interests of justice”?