Despite Denials, Russians Were in Contact with Trump Campaign

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National Security Adviser Michael Flynn answers questions in the briefing room of the White House February 1 in Washington. Ryan Goodman writes that if the contact between the Russians and the Trump campaign related to Russia’s cyber campaign to help elect Trump and destabilize a potential Clinton presidency, it could raise more serious allegations, even including treason. Win McNamee/Getty

This article first appeared on the Just Security site.

News stories and headlines overnight are focused on the revelation that Michael Flynn discussed sanctions with Russia’s Ambassador in December phone calls, which flatly contradicts what Vice President Pence, White House Spokesman Sean Spicer, and Flynn himself had previously publicly asserted.

The story, broken by Greg Miller, Adam Entous and Ellen Nakashima at The Washington Post, contains a potentially even more explosive revelation: Russian contacts with Donald Trump’s inner circle during the presidential campaign, an allegation that the Trump administration has also previously categorically denied.

Related: Michael Rubin: General Flynn must explain himself

I. Implications

Why would the pre-election contacts be the more significant story? The reason is, as many commentators suggest, if such contact related to Russia’s cyber campaign to help elect Trump and destabilize a potential Clinton presidency, it could raise more serious allegations, even including treason.

Compare that implication to the potential legal violation of Flynn’s speaking with the Russian ambassador after the election. As Steve Vladeck wrote at Just Security, the law prohibiting private citizens’ engaging in diplomacy—the Logan Act—may not apply to an incoming president-elect’s transition team.

Sometimes the cover up is worse than the crime. On all these counts, administration and former campaign associates may need to consider the False Statements Crime, that is, if they spoke directly with investigators who have been handling these cases. (On the status of current investigations, I recommend Susan Hennessey’s discussion over at Lawfare.)

II. Denials

Since the election, the Trump team, including the president himself, have categorically denied any contact with Russian officials during the campaign.

Kate Brannen has a more comprehensive list of these denials in a chart published at Just Security. Perhaps the most significant and curious instance involved Mr. Trump at his first press conference after the election.

The press conference happened to be scheduled the day after Buzzfeed released the dossier containing unsubstantiated claims of Russian contacts with the Trump campaign. During the press conference, two reporters tried to ask the president-elect the question about any such contacts. From Kate Brannen’s handy chart, here is the synopsis:

Trump did not answer this direct question during the press conference. The reporter who asked attached to it a question about Russian hacking, which Trump focused on in his lengthy response, allowing him to avoid the first part of the question about contacts with Russia leading up to the election. The press conference was then adjourned.

When CNN’s Jim Acosta tried to ask the question earlier, Trump yelled at him, “Your organization is terrible.… You are fake news,” and refused to take a question from him.

After the press conference, reporters followed Trump to the elevators in Trump Tower, and Trump told them: No, no one on his team had any contact with the Russians (see also here).

A few days later, Vice President Pence also gave an unusual answer to the question, at first avoiding it and then qualifying his response by referring to when he first joined the campaign. Again from Brennan’s chart:

Fox News’s Chris Wallace asked Pence that same day, “Was there any contact in any way between Trump or his associates and the Kremlin or cutouts they had?”

Pence’s answer: “I joined this campaign in the summer, and I can tell you that all the contact by the Trump campaign and associates was with the American people. We were fully engaged with taking his message to make America great again all across this country. That’s why he won in a landslide election.”

Wallace followed up, “if there were any contacts, sir, I’m just trying to get an answer.”

Pence: “Of course not. Why would there be any contacts between the campaign?”

III. The New Revelations

Last night’s Washington Post story itself is primarily focused on Flynn’s December phone calls. Nonetheless, the Post also states, in passing: “The talks were part of a series of contacts between Flynn and [Ambassador] Kislyak that began before the November 8 election and continued during the transition, officials said.”

The Post notes that Vice President Pence made two assertions—one dealing with the December calls and the other “a more sweeping assertion, saying there had been no contact between members of Trump’s team and Russia during the campaign.” The Post then writes:

Neither of those assertions is consistent with the fuller account of Flynn’s contacts with Kislyak provided by officials who had access to reports from U.S. intelligence and law enforcement agencies that routinely monitor the communications of Russian diplomats. Nine current and former officials, who were in senior positions at multiple agencies at the time of the calls, spoke on the condition of anonymity to discuss intelligence matters.

The Post also writes that the Russian ambassador recently remarked on contacts prior to the election: “Kislyak said that he had been in contact with Flynn since before the election, but declined to answer questions about the subjects they discussed.”

Ryan Goodman is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as special counsel to the general counsel of the Department of Defense (2015-16).