Well, there is lots going on in Flynn World.
The president’s former national-security advisor, Michael Flynn, is obviously elated that, on Wednesday, a three-judge panel of the D.C. Circuit granted his petition for a writ of mandamus — i.e., it instructed District Judge Emmet Sullivan to grant the Justice Department’s motion to dismiss the case against him. I have a column about the ruling up on the homepage.
As reported by NR’s Zachary Evans, moreover, Flynn defense lawyer Sidney Powell has filed an intriguing supplement the defense’s concurrence in the Justice Department’s dismissal motion. The supplement, also filed on Wednesday, includes notes said to have been handwritten by Peter Strzok, then a top FBI counterintelligence agent (and, of course, later fired for sundry misconduct).
It is being widely reported that the notes concern a now infamous White House meeting about Flynn that took place on January 5, 2017. (I began writing about that meeting as soon as we learned about it in early 2018, and it is central to my book about the Trump–Russia investigation, Ball of Collusion). The meeting included the top political and law-enforcement leadership of the Obama administration — President Obama, Vice President Biden, national-security advisor Susan Rice, deputy attorney general Sally Yates, and FBI director James Comey — notwithstanding the insistence of Obama apologists that the administration did not permit law enforcement to be influenced by politics. (I would counter that mixing the two was the administration’s M-O).
I suspect the Strzok notes are about the January 5 meeting, too. There is, however, confusion on this point.
The short supplement Ms. Powell filed states that Strzok’s notes are “believed to be of January 4, 2017” (emphasis added). Now, Powell received these notes from the Justice Department as part of its continuing review of the Flynn case (which was prosecuted by special counsel Robert Mueller’s staff). Obviously, she is privy to more information about the case than we are, and we do not know what, if anything, DOJ told her about the provenance of the notes. That said, I am skeptical about the January 4 dating.
If it’s right, that would mean there were two meetings involving the same five people regarding the same subject matter on consecutive days. It seems highly unlikely to me that President Obama and Vice President Biden, along with Rice, met with Comey and Yates on both January 4 and 5. Plus, in connection with its motion to dismiss Flynn case, the government has previously disclosed FBI interviews of former deputy AG Yates and Mary McCord, formerly the chief of DOJ’s National Security Division. Both of them indicated that Yates did not know until January 5 that the FBI had intercepted conversations between Flynn and Russian ambassador Sergey Kislyak. That was a somewhat embarrassing admission for them to make, so I don’t think there’s any reason to doubt it. (Yates should have been briefed before the White House meeting by McCord, who had been alerted by the FBI’s then-deputy director, Andrew McCabe, on January 3. Perhaps McCord did not realize Yates was going to the White House on the morning of January 5; she had scheduled a briefing for Yates that afternoon. As a result, Yates first learned about the Flynn–Kislyak calls when Comey and Obama discussed them in her presence at the White House meeting.)
Another peculiar thing: We have no basis to believe Strzok was present at the January 5 White House pow-wow — at least the follow-on meeting involving the five top-tier officials, several rungs above Strzok.
On that score, note that there were really two meetings on January 5. The first was for the chiefs of four intelligence agencies — FBI, CIA, NSA, and ODNI — to brief the president (presumably, along with his Veep and national security advisor) on their report assessing Russia’s interference in the 2020 election. The second was the follow-on meeting, involving only Obama, Biden, Rice, Yates, and Comey. There were several more people in attendance at the first January 5 meeting. Strzok was deeply involved in the assessment report. I don’t know how much staff the intel chiefs brought along to make their presentation to Obama, so I suppose it’s possible Strzok was there, but I’ve never heard that before. Plus, Strzok’s notes appear to refer to the follow-on meeting, involving only the five highest ranking officials.
It is more likely, then, that Strzok’s notes were taken when someone later briefed him about the White House meeting that Strzok did not attend. I am hypothesizing here, of course, but if I’m right, we should bear in mind that the notes would reflect, at best, a second-hand account. That would not make them inaccurate, necessarily, but it’s worth bearing in mind.
The difference between January 4 and 5 is significant, and not just because it is unlikely that there were two meetings involving the five major players. January 4 is the date of the “closing memo” the FBI had completed to shut down its case on Flynn due to lack of evidence that he was a clandestine agent of Russia.
In addition to that memo, the Justice Department previously disclosed to Powell important texts from that day. On the afternoon of January 4, Strzok texted the Flynn case agent (believed to be Joe Pientka, though the name is redacted in the disclosure) and was relieved to learn that the Flynn case (“Crossfire Razor”) had not yet been formally closed in the bureau’s files, even though nearly all the steps necessary to do so (including getting Comey’s approval) had been taken.
Strzok promptly reported that the case remained open to Lisa Page, McCabe’s counsel (and Strzok’s paramour). She replied, “phew . . . . But yeah, that’s amazing that he’s still open. Good I guess.” Strzok’s agreed: “Yeah, our utter incompetence actually helps us.
Strzok subsequently told Pientka, “7th floor involved” — meaning the FBI’s top hierarchy, Comey and McCabe. The issue at the time was that the bureau “need[ed] to decide to what to do with” Flynn with respect to “the [redacted].” I suspect what’s redacted is a reference to the Flynn–Kislyak communications the FBI had intercepted. Pientka said, “I heard that might be the case yesterday [i.e., January 3]. Did DD [i.e., Deputy Director McCabe] send that material over?” As noted above, we know McCabe had become aware of the Flynn–Kislyak calls on January 3 because that’s when he informed DOJ’s McCord about them.
To recap: In the January 4 texts, Strzok observed that the FBI’s brass was trying to figure out what to do about the new Flynn information (i.e., the intercepted Kislyak calls) and expressing relief that the case was still open — i.e., the bureau would not have to come up with a reason to either reopen the case or start a new case, neither of which could have been justified by the non-incriminatory substance of Flynn’s discussions with the Russian ambassador. The newly revealed notes attributed to Strzok contain no reference to Obama, the Justice Department, or any White House meeting. It is likely, therefore, that on January 4, Strzok and others at the FBI were preparing for Comey’s scheduled briefing of Obama the following morning. It is improbable that Obama, Biden, Rice, Yates, and Comey had a meeting on January 4, and then met again on January 5.
Now, onto what Strzok’s notes actually say. If I am right that they reflect what he was told about the January 5 meeting, which he did not attend, they don’t tell us much that we didn’t already know.
The handwritten notes appear in our Zachary Evans’s report, linked above. What follows is a rendering of what Strzok’s chicken-scratch says, based on my discussion with others knowledgeable about the case and my own perusal. The notes refer to people by initials, so let me first interpret those: “NSA” is National Security Advisor Rice; “D” is Director Comey; “DAG” is Deputy Attorney General Yates; “VP” is Vice President Biden; and “P” is President Obama. There is also a reference that looks like “Apple” — I am not convinced that “Apple” is what it says, nor do I know to whom or what it refers. Where I’ve added explanatory observations, my initials — “ACM” appear in the brackets.
Here is what the notes say:
NSA-D-DAG: Flynn cuts. Other countries [ACM: I’m not confident in “countries”]
D-DAG: Lean forward on unless [ACM: all of it is hard to make out, and I’m not confident in “unless”]
VP: “Logan Act”
P: These are unusual times
VP: I’ve been [ACM: there’s a scratch out] on the intel committee for ten years and I never
P: Make sure you look at things and have the right people on it [ACM: “over” instead of “at” has also been suggested to me, but it looks like “at”.]
P: Is there anything I shouldn’t be telling transition team?
D: Flynn -> Kislyak calls but appear legit
Apple — Happy New Year. Yeah right.
Not very enlightening. “Flynn cuts” refers to summaries of communications intercepted under FISA. The notes suggest that Biden may have been a more active participant in the discussion than previously revealed. But that shouldn’t surprise anyone: The former vice president is a garrulous sort. In any event, his reference to the Logan Act, in quotes, could well mean that he was repeating something someone else had already said rather than making a suggestion on his own. (McCord’s interview indicated that the absurd notion of prosecuting Flynn under the Logan Act may have originated in the ODNI, and it may have been developed in discussions between the ODNI and FBI. The Justice Department appears to have been skeptical about it, at least internally.)
I do think that there is significance in Strzok’s notation of Comey acknowledging that the Flynn–Kislyak calls appeared legitimate. Strzok was a high-ranking FBI official who (a) had contact with Comey, (b) was in regular communication with McCabe’s office, and (c) worked closely with other bureau people who had regular access to Comey and McCabe. As a result, he was in a position to know Comey’s (and the FBI’s) take on the Flynn–Kislyak calls. Furthermore, as I observed above, the FBI was very relieved that the Flynn case had not been closed in their filing system. That only makes sense if they suddenly wanted to continue the investigation despite the lack of a valid reason for doing so. If the bureau had believed the Flynn–Kislyak calls were incriminating, the agents would not have cared whether the case had been formally closed because they’d know they had well-founded reasons to reopen it.
That said, it is not a revelation that Comey knew there was nothing illegitimate about the incoming national security advisor’s discussions with the Russian ambassador. We already knew, from New York Times reporting, that the FBI had told “Obama advisers” that there was no evidence of a corrupt quid pro quo in the Flynn–Kislyak calls. And we already knew from Susan Rice’s January 20, 2017, “Note to File” email that Comey told Obama there was “no indication thus far that Flynn has passed classified information to Kislyak[.]”
Consequently, if Strzok was accurately reporting his own or some other bureau official’s recollection that Comey said the Flynn–Kislyak calls “appear legit,” that confirms other accounts previously disclosed.
In a nutshell, Strzok’s notes are significant in what they confirm, but they probably do not reveal anything new.