Not much was going on in the Michael Flynn probe until The Washington Post and a leaker reenergized the FBI, according to a newly disclosed transcript of closed-door testimony by former bureau Director James B. Comey.
The FBI had filled out the paperwork to end the Flynn-Russia probe, but Mr. Comey halted the closing in early January 2017. Transcripts emerged of the incoming White House national security adviser talking by phone with Kremlin envoy Sergey Kislyak.
The retired three-star Army general and Mr. Kislyak talked about not overreacting to economic sanctions that President Obama imposed on Dec. 31, 2016, in retaliation for Moscow’s election interference.
Mr. Comey went to work. He provided top-secret call intercept material to Director of National Intelligence James R. Clapper, who told Mr. Obama. At a Jan. 5 White House meeting, the FBI chief and Mr. Obama again discussed that Flynn had talked with Russians during the transition. There is no law, per se, against such communications.
And there things stood, Mr. Comey said in his most extensive narrative of what he did in the pivotal January time frame when the Obama team was leaving the White House to Donald Trump.
“Nothing, to my mind, happens until the 13th of January, when David Ignatius publishes a column that contains a reference to communications Michael Flynn had with the Russians,” Mr. Comey told the House Permanent Select Committee on Intelligence on March 2, 2017.
The Justice Department filed his declassified transcript to support its motion to have U.S. District Judge Emmet G. Sullivan sign an order dismissing the case against Flynn, who had been accused of lying to federal agents about his communications with Mr. Kislyak.
The Ignatius column is a powerful example of how anti-Trump forces within the bureaucracy — President Trump calls it the “swamp” — can change history.
“Tail wagging the dog,” said a Republican congressional staffer.
Without the Ignatius column disclosing the phone call, Vice President Mike Pence likely would not have given a White House denial that Sunday that sanctions were ever discussed.
His denial woke up a moribund investigation. FBI agent Peter Strzok, who headed the Trump-Russia Crossfire Hurricane probe and selected Flynn as a target, now had a discrepancy between the Kislyak call transcript and Flynn’s version. Mr. Comey’s decision to drop the Flynn probe in early January was history.
Then-acting Attorney General Sally Q. Yates urged Mr. Comey to notify the Trump White House, but he declined.
“And we kept [the Flynn investigation] open once we became aware of these communications,” Mr. Comey testified. “And there were additional steps the investigators wanted to consider, and if we were to give a heads-up to anybody at the White House, it might step on our ability to take those steps.”
He said Ms. Yates at that point had the option to notify. She did not.
“If the leadership of the Department of Justice wanted to do that, that was certainly fine for them to do, but I didn’t think it was something that I should do,” Mr. Comey said.
The FBI counterintelligence team began planning their next move and settled on pursuing a White House interview with Flynn.
The possible goals were to get him to lie about the call and get fired, according to notes taken by unit chief Bill Priestap. Another option was to have Flynn admit guilt to violating the 1799 Logan Act. The law, never prosecuted successfully, forbids citizens from speaking with foreigners against government policy.
Mr. Strzok and colleague Joe Pientka went to the White House on Jan. 24, 2017, after Deputy FBI Director Andrew McCabe put Flynn at ease during a phone call.
The FBI violated its own protocols. The bureau didn’t notify the White House counsel and did not show. Flynn the intercept material. Flynn had told Mr. McCabe that he suspected the FBI listened in on his conversations with Mr. Kislyak.
Later, during his book tour, Mr. Comey bragged about how he was able to slip two agents past the White House’s legal guardians.
Flynn’s answers that day were not a complete denial. He suggested that he might have discussed sanctions but didn’t remember.
Even Mr. Comey didn’t think there was a strong case.
Asked whether Flynn lied, Mr. Comey testified, “I don’t know. I think there is an argument to be made that he lied. It is a close one.”
His agents also saw no obvious physical signs of lying.
“And the agents — and the reason I mention their experience is because I talked to them about this — they discerned no physical indications of deception,” Mr. Comey testified. “They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”
Federal prosecutors did not turn over the Comey transcript to the Flynn defense.
That May, Mr. Trump fired Mr. Comey, prompting then-Deputy Attorney General Rod Rosenstein to name special counsel Robert Mueller to investigate.
Mr. Mueller’s team of mostly Democratic Party-aligned lawyers went after Flynn, whose son suddenly was in legal jeopardy for his work on his father’s intelligence consulting firm. News leaks informed Flynn of this fact. The government alleged that Flynn admitted to making false statements in his March 2017 Foreign Agents Registration Act filing on his representation of Turkey.
New court documents suggest that Flynn saved his son from prosecution by pleading guilty in December 2017 to giving a false statement to the FBI.
“We have a lawyers’ unofficial understanding that they are unlikely to charge junior in light of the cooperation agreement,” said an email from Flynn’s previous attorneys at Covington & Burling.
“Not prosecuting his son was material part of deal,” Sidney Powell, his new defense attorney, told The Washington Times. “That, plus his understanding that agents maintained that he lied.”
In other words, Flynn did not relinquish his claim of innocence until the Mueller team put his son at risk.
The son saga was one part of Ms. Powell’s argument that the government withheld favorable evidence, called Brady material, from the defense as ordered by Judge Sullivan. She accuses the FBI of setting up and framing her client.
Attorney General William Barr appointed Jeffrey Jensen, U.S. attorney in Missouri and a former FBI agent, to review the case. He recommended dismissal of the Flynn case.
Judge Sullivan is balking and has hired a Washington lawyer to argue his case before the U.S. Court of Appeals for the D.C. Circuit.
Ms. Powell has asked the court to give the Flynn case to another judge.
Flynn, whose long Army career culminated in heading the Defense Intelligence Agency, was never implicated in any Russian election conspiracy, nor was any Trump campaign member.
The Obama administration fired Flynn as DIA chief in 2014 over disagreements on how to combat radical Islam.
Mr. Comey also downplayed the prospect of prosecuting under the Logan Act — a law his agents contemplated trying to get Flynn to admit he had violated.
“I doubt it honestly because of the nature of the Logan Act as such,” the former FBI director said. “Again, I am not an expert, but I don’t think it is something prosecutors have used.”
After the FBI interviewed Flynn on Jan. 24, Ms. Yates traveled to the White House to inform officials that their national security adviser had told the agents something that conflicted with his phone call with Mr. Kislyak. She believed it left him vulnerable to Russian blackmail.
Asked about that scenario, Mr. Comey said, “That struck me as a bit of a reach, though, honestly.”
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