Michael Flynn’s secret talks with Russia in the waning days of the Obama administration raise three questions that need to be investigated. What are the connections between Russia, the Trump Organization, and Donald Trump’s business and political associates? What role have Russian operators played in crafting Trump’s policies toward Russia and Ukraine? And what did Trump know about Flynn’s false statements to the FBI?
The third question is the one I want to dig into here. We now have evidence that Flynn misled the FBI, that the White House knew about it, and that Trump didn’t care. To what extent did the president of the United States countenance, or even conceal, the evasion of law enforcement?
Making false statements to a federal investigator is a felony. Even if you aren’t prosecuted for the acts that are the subject of an FBI interview, you can be prosecuted for misleading the agents about it. That’s the standard Republicans applied to Hillary Clinton last year. Now they’re brushing Flynn’s false statements to the FBI, and Trump’s indifference to those statements, under the rug.
On Dec. 29, President Obama sanctioned Russian diplomats to punish Russia for interfering in the presidential election. That day, in a private phone call, Flynn—who at that point was still a private citizen—undercut the sanctions by assuring Russia’s ambassador that Trump, as president, would review them. Two weeks later, Flynn told others on the Trump team, including Vice President–elect Mike Pence, that he hadn’t discussed the sanctions on that call. Pence, misled by Flynn’s account, went on TV and vouched for it.
Pence’s words on TV alarmed U.S. intelligence and FBI officials. They knew, based on routine surveillance of the Russian ambassador, that Flynn had discussed the sanctions in the Dec. 29 call. This raised two issues. One was that Flynn might have violated the Logan Act, which barred private citizens from meddling in diplomacy. Another was that Russia might blackmail Flynn, knowing he had misled Pence.
Then, on Jan. 24, Flynn created a third problem. In an interview with the FBI, he repeated his false denial.
Two accounts of the interview, based on inside sources, have been published. The first, which ran in the Washington Post last Thursday, said that Flynn’s answers contradicted U.S. intercepts of the call. It also said Flynn “followed his denial to the FBI by saying he couldn’t recall all of the conversation.” The second account, published hours later by CNN, said “Flynn initially told investigators sanctions were not discussed. But FBI agents challenged him, asking if he was certain that was his answer. He said he didn’t remember.”
Two days after the FBI interview, on Jan. 26, acting Attorney General Sally Yates warned Trump’s White House counsel, Don McGahn, about Flynn’s deception. According to the White House, McGahn immediately relayed Yates’ information to Trump. Until this weekend, it wasn’t clear whether that information was just about Flynn misleading Pence or also included Flynn’s FBI interview. Now we know: On this past Sunday’s Meet the Press, Trump’s chief of staff, Reince Priebus, told Chuck Todd that after the warning from Yates, Pence was promptly made “aware of the fact that the FBI interviewed Michael Flynn.” If Pence was told, Trump must have been told, too.
So now we know White House officials were aware of the FBI interview. But did they know what transpired during it? It’s hard to believe that Yates would have told McGahn about the interview without conveying—or at least signaling in response to McGahn’s questions—what Flynn had said. If the White House brass had any doubt, their subsequent interrogations of Flynn must have settled it. “We started asking a lot of questions and sort of deposing Michael Flynn,” Priebus told Todd. “He maintained the fact that he never talked to the Russian ambassador about sanctions.” Priebus knew that story was false. When Todd asked Priebus whether he had read surveillance transcripts of the Dec. 29 call, Priebus replied: “I can’t answer that question. But I can assure you that I am fully aware of the situation. And we determined that he wasn’t being straight with the vice president and others.”
So the White House knew that (1) Flynn was falsely denying that he had talked about sanctions, (2) he had been interviewed by the FBI, and (3) the interview had prompted a warning from the Justice Department about Flynn giving a false account. Did White House officials, in their interrogations of Flynn, ask him what he had told the bureau? It’s almost inconceivable that they didn’t. But Priebus refuses to confirm that they did. “Did he mislead the FBI or lie to the FBI? Is that one of the issues that came up during the deposing?” Todd asked Priebus. “That’s a different issue for the FBI to answer,” Priebus replied. “Certainly we’ve talked about that issue with leadership at the FBI. But I’m not in a position to talk about that with you.”
Why won’t Priebus answer that question? Maybe it’s because of his deep respect for confidentiality. Or maybe it’s to protect himself and his boss. If Trump and his aides knew that Flynn had made false statements to the FBI, then what they’ve told us for the past week—that Flynn did nothing illegal, or even wrong—shows, at the very least, their contempt for law enforcement. And the 17 days Flynn stayed in his job, publicly backed by Trump, after the warning from Yates—a feat of heel dragging that ended only when leaks and media pressure forced Trump’s hand—show that this White House will defy legal accountability.
Republicans don’t want to investigate this. They offer four bad arguments. The first is that Trump did punish Flynn, by forcing him to resign. But that’s not true. At his news conference last Thursday, Trump repeatedly said Flynn did nothing wrong. Flynn’s only mistake, according to Trump, was misleading Pence. Even then, according to inside accounts, it was media pressure, not conscience, that forced Trump’s hand.
The second excuse is that Flynn didn’t lie to the FBI. He just forgot the part of the Dec. 29 phone call where he talked about the sanctions. Not even Priebus buys that. Referring to the White House interrogation, in which Flynn offered the same exculpatory line, Priebus told Todd: “I just found it hard to believe that you would have a conversation with the Russian ambassador and not remember it.”
The third excuse is that Flynn’s underlying act—hinting to Russia that the sanctions would be reviewed—wasn’t prosecutable. But if Flynn had nothing to hide, why did he hide it? And why should he be treated more gently than Clinton? Democrats made a similar point in her defense: that her email practices weren’t prosecutable, and therefore her truthfulness about them wasn’t a legitimate target of investigation. Republicans rejected that defense. They said misleading the FBI was a crime, period. They were right.
The fourth excuse is that some time after Jan. 24, the FBI closed its investigation of Flynn, and this left the White House no grounds on which to treat his statements to the FBI as legally problematic. It’s rich to hear this excuse from the same Republicans who went ballistic last year when FBI Director James Comey closed the Clinton investigation and announced that “no reasonable prosecutor” would bring charges against her. Republicans rejected Comey’s verdict, called on him to release the FBI’s notes from its interview with Clinton, and demanded that he reopen the case. He obliged them on all counts.
That’s what we must demand now. Release the notes from Flynn’s FBI interview, so we know the extent of his falsehoods. Summon McGahn, Priebus, and other White House officials to testify about their knowledge of those falsehoods. What did they learn from Yates? Did they see the interview notes? The surveillance transcripts? Who did they talk to at the Justice Department? What did they ask Flynn? Find out what they knew and when. If Trump and his aides protected a national security adviser who misled the FBI, that’s a firing offense.