Law & the Courts

Make the Flynn Tape Public

Michael Flynn at the White House, February 13, 2017. (Reuters photo: Carlos Barria)
Team Trump turns an empty narrative into a major scandal.

Let’s hear the tape.

The Flynn affair is a tale of intrigue, with head-spinning twists and turns, manipulative spies, narrative-weaving pols, and strategists who mostly outsmart themselves. It is easy to get lost in the weeds. There is one easy way to get to the bottom of it, though — one way to get a real sense of whether General Michael Flynn, the now-former national-security adviser, is a lying rogue who deceived every Trump administration official in sight, or the victim of an elaborate “deep state” scam whose real objective is to destroy not merely Flynn but the Trump presidency.

Let’s go to the audio tape: the government’s recording of a December 29, 2016, conversation, intercepted under the Foreign Intelligence Surveillance Act (FISA), that Flynn had with Sergey Kislyak, the Russian ambassador to the United States.

For now, the so-called deep state — the intelligence operatives and highly placed officials who run the United States government because they have the power to ruin their opposition — would apparently prefer that we not hear the tape. Many of them are Obama functionaries who are content to shape opinion by leaking their edited version of events to media allies. Some of them are Trump functionaries whose mishandling of what may be a tempest in a teapot has made them vulnerable less than four weeks into the new administration. Perhaps, they calculate, handing up Flynn’s scalp makes their problem go away. In reality, it is just whetting the opposition’s appetite.

Let’s end the intrigue and go to the tape.

As late as Tuesday, General Flynn was still denying what is being widely reported as settled fact, namely, that he spoke with the Russian ambassador specifically about “sanctions” imposed by President Obama. Since Flynn knows there is a recording of the conversation, it is a strange thing for him to deny. So is he telling the truth? Let’s find out.

Intelligence operatives leaked parts of Flynn’s conversation with Kislyak — a felony violation of federal law. Now, they’ll blithely tell us that that they can’t release the whole conversation because it is classified. Should we buy that?

I wouldn’t.

To understand the smoke and mirrors of scandal here, it is critical to recreate what was happening in this country on December 29, when Flynn, already designated as Trump’s national-security adviser but three weeks away from taking office, called the Russian ambassador.

Donald Trump had shocked the world on November 8 by winning the 2016 election. Unwilling to come to grips with their defeat — to acknowledge that they had nominated a hopelessly flawed candidate and, in their leftwing extremism, alienated the working-class voters who were once their party’s backbone — Democrats settled on an alternative rationalization: “Russia hacked the election.”

This narrative is utter nonsense. While the vile Putin regime probably did have a role in hacking the e-mail accounts of the Democratic National Committee and Clinton campaign manager John Podesta, they had not done a thing to compromise the actual voting process. And the embarrassing revelations published through WikiLeaks were not slanderous; they were true and accurate communications in which Democrats spoke candidly — meaning, they said things they wouldn’t want you to hear about.

Nevertheless, the story had legs for three reasons. First, the media dutifully repeated it, assiduously, until even people who didn’t believe the Russians “hacked the election” found themselves referring to the “election hacking.” Second, Donald Trump fueled the fire with noxious rhetoric that praised and appeared to seek accommodation with Putin’s murderous, anti-American regime. Thanks to Trump, it seemed plausible that Putin could be disposed to help Trump — such that the question of whether Putin really did help Trump, or could have, was made to seem secondary.

And finally, there was — as always — the intelligence community. Still stocked with Obama operatives, the IC put out a misleading but ballyhooed report that — based on no hard evidence but lots of loaded terms (such as “cyber espionage,” “covert intelligence,” “propaganda,” and “influence” operations) — expressed “high confidence” that Putin wanted Trump to win the election and had acted in a manner consistent with that desire. By doing what? The CIA, NSA, and FBI omitted that part — conveniently claiming that revealing it might compromise intelligence methods and sources, and thus even more conveniently omitting the name “Podesta” and the fact that the Russians, far from mounting a misinformation campaign, had simply helped publish true but embarrassing information.

It did not matter, though. The vaunted judgment of the IC — not its slapdash, politicized work-product — was the story the media ran with. In the public mind, the narrative was solidifying: Russia hacked the election.

They were just missing one piece: something in the way of a solid quid pro quo from Trump.

For all his disturbing (at times, disgraceful) Putin-friendly commentary, the incoming president had not actually promised anything meaningful to Russia. Indeed, he had appointed officials — such as Flynn and incoming Defense Secretary James Mattis — who were on record describing Russia as a hostile, sinister geopolitical competitor. For all its sizzle, the “Russia hacked the election” narrative had no steak when you looked under the IC- and media-generated smoke. What it really needed was evidence of collusion, evidence that Russia was benefitting from the appearance, however overblown, that it was helping Trump.

And there is no doubt that the Obama-controlled intelligence apparatus was moving heaven and earth to find that evidence — or, if need be, create its appearance. We now know that during the campaign — even as Democrats were expressing outrage at the suggestion that Trump, if he won, might have Hillary Clinton investigated — Obama was actually having Trump investigated.

The FBI is said to have initially suspected Trump-Russia scheming because of a server at Trump Tower in Manhattan that was somehow linked to a pair of Russian banks. I wrote about that here at National Review last month. A preliminary investigation apparently found no evidence of wrongdoing. Ordinarily, that would be the end of the matter. But that’s when the matter is crime; this was politics.

So, in June 2016, the Obama Justice Department sought permission from the FISA court to conduct a national-security investigation against Trump insiders — and perhaps even Trump himself — on suspicion that they were acting as agents of a foreign power. The FISA application is said to have “named” Trump, though it is not clear whether that means the Justice Department was targeting him as a surveillance subject. Apparently, though, the application was so thin that even the FISA court, though notoriously accommodating of government surveillance requests, declined to approve a warrant.

Still the Obama Justice Department did not give up. In October, virtually on the eve of the election, it submitted a second FISA application — this one more narrowly tailored, avoiding mention of Trump himself. The FISA court granted this application. Indications are that the investigation is ongoing, targeting former Trump advisers Paul Manafort, Roger Stone, and Carter Page.

That, however, was before the election. It was after the election that the Democrats went into overdrive to solidify conventional wisdom that the election was not lost but stolen from them.

Not only did the IC put out its empty bag of a report. President Obama undertook to act on that report with vigor. It was thus on December 29 that Obama announced measures to punish Russia for what his administration studiously called its “interference in this fall’s presidential election.” He expelled 35 people described as Russian “intelligence operatives”; slapped sanctions on two Russian intelligence agencies (the military and civilian spy services, the GRU and FSB, which used to be the KGB, respectively), three companies said to support Russian cyber operations, and four “cyber officials”; and shuttered two Russian-owned buildings (on Long Island and Maryland’s eastern shoreline) described as intelligence facilities.

Mind you, Obama had not taken decisive action for eight years, during which Russia annexed Crimea, consolidated its de facto seizure of Eastern Ukraine, propped up Assad, armed Iran, buzzed U.S. naval vessels, and saber-rattled in the Baltics. But now, on December 29, on his way out of office and desperate to shore up an empty political “hacked the election” story, Obama moved with a fury of purpose, making the narrative seem deadly serious.

It was in this frenzied setting that General Flynn made a stupid mistake. He picked up the phone and called Russian Ambassador Kislyak.

It seems inconceivable that Flynn did not consider the likelihood, the virtual certainty, that he was calling a wiretapped line.

It is hard to quantify how dumb this was. Flynn, a retired three-star Army general, is not just a long-time intelligence veteran. He was the head of the Defense Intelligence Agency (DIA). How could he not have realized that, even in the best of times, Russian officials are routinely monitored under FISA — and this, far from the best of times, was a time of high suspicion? It seems inconceivable that Flynn did not consider the likelihood, the virtual certainty, that he was calling a wiretapped line, that his call would be recorded and reviewed by the intelligence community — a community he was part of and has made a business of antagonizing since being fired by Obama in 2014.

Even if the call had been prearranged by text messages (the two men have known each other since Flynn’s DIA days), how could Flynn have gone through with it when Obama’s announcement of punitive measures that very day made it a certainty that Kislyak would mention them? It makes no difference that Flynn had no intention or authority to make a deal with Russia on Trump’s behalf. If Kislyak broached the subject of relief from Obama’s actions — something that Flynn would be powerless to prevent him from doing — it could then be reported, accurately if misleadingly, that they had “discussed the sanctions.”

That was all the Democrats needed.

In an interview on Tuesday with the Daily Caller, Flynn continued to deny that he did anything inappropriate during the phone call, insisting that he did not discuss “sanctions” per se, as the media incessantly reports. The most important part of Richard Pollock’s long report comes at the tail end:

Flynn insisted that he crossed no lines in his telephone conversation with Russian Ambassador Sergey Kislyak: “If I did, believe me, the FBI would be down my throat, my clearances would be pulled. There were no lines crossed.” Flynn said there was a brief discussion of the 35 Russian diplomats who were being expelled by Obama in retaliation for Moscow’s alleged interference in the 2016 campaign.

“It wasn’t about sanctions. It was about the 35 guys who were thrown out,” Flynn said. “So that’s what it turned out to be. It was basically, ‘Look, I know this happened. We’ll review everything.’ I never said anything such as, ‘We’re going to review sanctions,’ or anything like that.” . . . 

The December conversation “was not to relieve sanctions. It was basically to say, ‘Look, we’re coming into office in a couple of weeks. Give us some time to take a look at everything.’”

If that’s really all there was, it should have been a big nothing: An incoming president’s national-security adviser-to-be, in the midst of a transition and only three weeks from taking office, calls the Russian ambassador, fleetingly hears his emergent concerns, and politely but curtly makes no commitments other than the vapid “we’ll look at everything” once we’re in power.

So how did a big nothing inflate into such a scandal? I’m betting that the Trump administration panicked upon realizing — perhaps from the moment Flynn got off the phone — how insidiously the Flynn-Kislyak conversation could be spun. In their panic, they made things immeasurably worse by foolishly lying about the timing and substance of a call someone should have realized was on tape and in the hands of the intelligence community. The IC officials, who had illegally leaked a version of the conversation to the media, quickly realized that the Trump officials were making provably false statements about it. Knowing they had Flynn in the trick bag, they pounced.

We are now learning the anatomy of this debacle. It started about a week before Trump took office. On January 12, the Washington Post’s David Ignatius published a leak from an unidentified “senior U.S. government official,” stating that Flynn called Kislyak “several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking.” The leak is clearly a felony violation of federal criminal law: It came from FISA surveillance of Kislyak, which is classified information.

But of course, Ignatius was not interested in that serious crime by his source. He instead concocted an imaginary crime committed by Flynn: a violation of the dubious 1799 Logan Act, which purports to make it illegal for private citizens who are not authorized by the executive branch to conduct freelance foreign policy. It was an absurd allegation. Putting aside that the Logan Act has not been enforced in its two-plus centuries on the books, Flynn was not a mere private citizen. He was a transition official paving the way for a new administration that he would be serving in one of its top national-security positions.

Nevertheless, it was enough to make Trump officials irrational. By the next day, two of them — unidentified — had called Ignatius and preposterously denied that there had even been a Flynn-Kislyak call on December 29. The party line was that communications between the two men had occurred between December 19 (when Flynn expressed condolences over the terrorist murder of a Russian ambassador in Ankara) and December 28; since the calls had happened before the December 29 announcement of sanctions, the Trump story went, the conversation could not possibly have involved sanctions.

Let’s pause over this for a moment.

Do you believe that Flynn — the same Flynn who gave a detailed account of his conversation with Kislyak to the Daily Caller just yesterday — failed to give a detailed account when asked about it by Trump administration advisers? Do you really think he looked them in the eye and lied about it? Maybe he did. After all, another unseemly leak of sensitive information in today’s New York Times informs us, according to unidentified officials, that Flynn has been interviewed by FBI agents, who assessed that “he was not entirely forthcoming.” Again, we are not given any basis for that conclusion. But maybe it’s true. Still, by the time of his FBI interview, Flynn had already made statements to several people about his conversation with the Russian ambassador — he had a motive to stick to the story the administration was telling. That wasn’t the case, however, before David Ignatius’s January 12 column. Is it possible that Flynn had not accurately briefed a single person in the incoming administration about his communications with the Russian ambassador in the two weeks between December 29 and January 12? Is it possible that there are no contemporaneous notes of the call, no memoranda about it?

Perhaps, but I’m having a hard time swallowing that. What I certainly could believe, though, is that the same Trump brain trust to whom it hadn’t occurred that there might be a recording of Flynn’s conversation, may also have miscalculated that the best course was to keep denying that the conversation involved sanctions — even though the sanctions talk was brief and benign.

So they continued denying it. And as a result, their “deep state” political rivals knew they had Team Trump just where they wanted them.

On Sunday January 15, Mike Pence, five days away from being sworn in as vice president, was the scheduled headliner on CBS’s Face the Nation. If you were an Obama operative, you could have bet the ranch on what would happen: Pence was grilled about Flynn’s contacts with the Russian ambassador, and Pence vigorously defended the incoming national-security adviser: He had personally discussed the matter with Flynn and was satisfied that Flynn and Kislyak “did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.”

Close your eyes and imagine the IC — ripped by Trump during and after the campaign — in full salivation mode.

According to the Washington Post, Pence’s denials prompted a meeting of top intelligence-community and law-enforcement officials from the Obama administration: CIA Director John Brennan, National Intelligence Director James Clapper, acting Attorney General Sally Yates, and FBI Director James Comey. The question was whether it was time to inform the Trump administration, which would be taking over the following day. Brennan and Clapper, who were leaving the minute Trump was sworn in, are said to have favored briefing their successors. Yates, however, reportedly sided with Comey, who favored delay.

You know what they say: When your opponent is busy destroying himself, best to stay out of the way and let him have at it.

Enter Sean Spicer. At his first Monday briefing as Trump’s press secretary, he boldly proclaimed that he had spoken with Flynn “again last night” and could assure everyone that there had been only “one call” between Flynn and Kislyak, and that it did not involve sanctions.


At that point, it was a certainty that the administration, from its first hours, would be saddled with a debilitating scandal that combined the vaporous “Russia hacked the election” narrative and the administration’s self-inflicted wounds — serial, easily disprovable misstatements, coming directly from the mouths of unnamed top advisers, the vice president, and the president’s own spokesman.

The damage done, Yates — an Obama ideologue who knew she was a short-timer — prevailed upon Comey that the time had come to inform the new administration that it had a disaster on its hands. Yates and an unidentified “senior career national security official” briefed Trump White House counsel Donald McGahn on Flynn’s communications with Kislyak — recorded for posterity under FISA and amplified by FBI reports. (Only days later, Yates would be dismissed for quite publicly and insubordinately defying President Trump by refusing to enforce his executive order banning alien entries into the U.S.)

The other million-dollar question: What on earth did the Trump administration do with the information from Yates? The White House counsel reportedly knew on January 23 about Flynn’s discussion with Kislyak. Yet, more than two weeks later, in a February 8 interview with the Washington Post, Flynn was still “categorically denying” that his talks with the Russian ambassador had involved Obama’s punitive measures against Russia. Only the next day, February 9, did a spokesman for Flynn walk that back, burbling that Flynn could no longer “be certain that the topic never came up.”

The contents of the conversation are going to be public at some point anyway, so now is the time to be transparent rather than guilty-looking.

By then, with several Trump officials having made public statements that were false, and several others potentially in the know, the administration settled on the only story that had a chance to fly: Flynn had either lied to everyone to cover up something he didn’t think was misconduct, or he is such a scatter-brain — this man chosen by Obama to lead DIA and by Trump to be national-security adviser — that he’d left out the part about Russia’s concerns over Obama’s punitive measures when briefing administration officials about their communications


If I were the Trump White House, I’d get that recording out in public — today. Don’t wait for detractors to make it look like they’re prying it from you in “a congressional investigation of Trump administration collusion with the Putin regime.” Put it out yourselves.

What have you got to lose? If it corroborates Flynn’s version of events, the public will understand that nothing of consequence happened in the conversation. If Flynn is misreporting it, it will support the White House story that the general is an unreliable source of information who was unsuited to a top advisory post. But the contents of the conversation are going to be public at some point anyway, so now is the time to be transparent rather than guilty-looking.

Next, somebody needs to figure out what Flynn’s practice for memorializing communications with foreign counterparts was, how (if at all) the Kislyak conversation was memorialized, and who was briefed on it both before and after Ignatius’s January 12 column. Furthermore, why was Flynn still making contradictory statements about the Kislyak conversation on February 8? After all, by January 23, the administration knew that (a) there was a recording, (b) Kislyak and Flynn had discussed — however briefly and inconsequentially — the Obama sanctions, and (c) its prior inaccurate statements had already become a big problem.

A last bit of unsolicited advice. There’s a good opportunity to beat back the “Russia hacked the election” story because close examination suggests there’s no there there. But the assertion that the administration has misinformed the public is undeniable, and it could get worse — ruinously worse — if the bleeding is not stopped immediately. Maybe what we’re being told is correct; maybe Flynn really is the sole culprit. But if it turns out that he provided accurate information and the administration nevertheless put out false information, that is going to become known at some point — probably soon.

You can get out in front of this today. Or you can get trampled by it tomorrow.


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