The resignation of National Security Adviser retired Lt. General Michael Flynn and the reporting surrounding his actions have raised new questions about the Trump administration’s contacts with Russian officials and why the White House statements often appear contradictory.
Here we try to lay out some of the issues for readers to track in the days and weeks ahead.
1. Keep focused: The key is still pre-election contacts with Russia
As Ryan discussed at Just Security last week (Newsweek: Despite Denials, Russians Were in Contact with Trump Campaign), a second bombshell in The Washington Post story on the content of Flynn’s communications with the Russian Ambassador is the pair’s contacts prior to the November election, and presumably at the time of Russia’s cyber operations against the United States.
We do not raise those issues to cast doubt on the legitimacy of the Trump presidency or to suggest that Hillary Clinton would have otherwise won.
Regardless of those kinds of potential implications, the fundamental issue is whether Trump campaign associates had anything to do with a foreign government’s illegal cyberoperation and attempt to destabilize the presidential election. That road can lead to complicity in the commission of federal crimes and potentially even treason.
When Vice President Mike Pence assured the nation, purportedly on the basis of Flynn’s giving him misinformation, that the December phone calls did not include a discussion of Russian sanctions, Pence also said there were no contacts between the Trump campaign and Russia during the presidential campaign.
What was the basis for that assertion? Was that claim also based on statements Flynn made to Pence? Or might Pence have been knowingly making false statements that time?
Despite consistent media reports of phone calls between Flynn and the Russian ambassador during the presidential campaign, on Tuesday White House Press Secretary Sean Spicer denied that there were any such contacts. Spencer said there was no reason for him to conclude that Flynn was talking to the Russian Ambassador before the election. The Russian Ambassador himself has admitted that he communicated with Flynn before the election.
Questions that need answering: What was the content of any communications between Trump associates and Russian officials during the campaign? Did Flynn communicate with Russian officials only by phone, for which there is likely a transcript, or in other forms as well?
Along these lines, it should be recalled that Flynn is the third Trump adviser—after Paul Manafort and Carter Page—to be expelled following public exposure of ties to Russia. Roger Stone, a close supporter of Trump, is also reportedly under investigation for his Russian contacts.
Financial transactions as well as intercepted communications are reportedly part of the counterintelligence investigation into Trump’s associates.
2. Who in Trump’s administration knew what and when?
The Trump team’s story behind Flynn’s December 29 calls changed several times between when the news broke January 12 and when Flynn resigned February 13. Early in that period, Trump officials told reporters that Flynn had talked to Russian Ambassador Sergey Kislyak more than once. The story changed about whether these were calls or texts, what dates they occurred and what was discussed.
Then, on January 23, Spicer gave a new version of events, saying there had been one call (he was emphatic about this) between Flynn and Kislyak that covered four topics—sanctions not being one of them (he was emphatic about that too). He said a second, more recent, call between Flynn and Kislyak had been made to set up a later call between Trump and Putin.
Why did the story change so many times? When did Pence and Spicer know that Flynn’s communications with the Russian ambassador included the topic of U.S. sanctions?
Why didn’t Pence or Spicer not correct the public record until after the Washington Post story broke (which was about two weeks after the Justice Department brought the information on the phone calls to the White House)?
Finally, did Trump really not know about the existence or content of Flynn’s calls until late January, when White House Counsel Don McGahn told him (after being briefed by the Justice Department)? If so, why didn’t Flynn, as national security adviser, let the president know about the discussions he had with Kislyak sooner?
Surely it would have been important for the president to be aware of that information? Something to keep in mind: White House Counselor Kellyanne Conway and Spicer seem to be very carefully emphasizing that Flynn misled the Vice President, not that Flynn misled the President.
3. Was Flynn acting with the knowledge and authority of the president or other officials when Flynn spoke with the Russian ambassador in December and suggested sanctions relief would be possible under Trump?
According to reports, Flynn left the Russian ambassador with the impression that the new sanctions being imposed by the Obama administration for interfering in the U.S. election could be potentially lifted once Trump took office.
Flynn urged the Russians not to take retaliatory actions, and they didn’t. Russian President Vladimir Putin’s decision not to retaliate was a sudden about face: it came shortly after Russian Foreign Minister Sergei Lavrov suggested that Moscow would respond in kind.
Far from being a rogue action, a friendlier stance toward Russia is what Trump had been promising publicly throughout his campaign and since winning the election. After the Russians made it clear they would not retaliate against Obama’s sanctions, Trump tweeted on December 30, “Great move on delay (by V. Putin)—I always knew he was very smart!”
In an interview with The Wall Street Journal in mid-January, Trump made it clear he was open to sanctions relief for Russia, saying he’d likely keep them in place for “at least for a period of time,” but then would lift them if Russia cooperated in other areas. “If you get along and if Russia is really helping us, why would anybody have sanctions if somebody’s doing some really great things?” he said.
Still, the White House insists Trump did not know that Flynn would discuss the issue of sanctions with the Russian ambassador. As the AP reported, “Asked whether the president had been aware that Flynn might have planned to discuss sanctions with the Russian envoy, Spicer said, ‘No, absolutely not.’”
That question and answer leaves some wiggle room: the White House may only be saying that the President did not know that the topic would be discussed, but that Flynn nevertheless had the authority from the President to do so. Indeed, Flynn himself may not have known ahead of time that the topic would be discussed until the Russian ambassador raised it.
At Tuesday’s press briefing, Spicer added a new piece: he said the president did not “instruct” Flynn to talk about sanctions. But Spicer said that Flynn was “well within his duties” to engage in the discussion and that there was “nothing wrong or inappropriate” in what Flynn said on the call.
This raises the question: If there was nothing wrong with what Flynn was doing, and he would not have thought he was acting out of line, why did he lie about it to Pence and others?
A request for by two Democratic lawmakers—Reps. John Conyers Jr., the top Democrat on the House Judiciary Committee, and Elijah Cummings, the top Democrat on the House oversight Committee—for a “full classified briefing” states: “We in Congress need to know who authorized his actions [and] permitted them.”
4. There are apparent holes in the news media’s blackmail story.
According to The Washington Post, “then-acting U.S. Attorney General Sally Q. Yates told the White House counsel last month that Flynn’s misleading statements to Pence and others made him vulnerable to blackmail by Russia, whose own government would have known that sanctions were discussed.”
And the Times described a scenario for blackmail:
The blackmail risk envisioned by the Justice Department would have stemmed directly from Mr. Flynn’s attempt to cover his tracks with his bosses. The Russians knew what had been said on the call; thus, if they wanted Mr. Flynn to do something, they could have threatened to expose the lie if he refused.
Working from that understanding of the blackmail risk, on Tuesday morning, Matt Lauer grilled Conway on why the president would keep Flynn in place once he had been compromised, which, Lauer emphasized, the White House would have already learned in late January from the Justice Department.
All that said, this line of reasoning, including Lauer’s line of questioning, does not seem right to us. Any worry that Flynn could be blackmailed by Russia would be over after the White House was made aware of the true nature of his conversations by the Justice Department.
What’s more, the idea of Russia being able to blackmail Flynn with these calls raises lots of questions. It presumes that no one but Flynn, or no one above Flynn, knew about his calls. Russia would also need to know that Flynn misled Pence, in other words, that Pence’s public statements were genuine and that he did not know any better.
Russia would also need to believe that U.S. intelligence did not already know about the calls and their content; that too is a stretch as it’s routine for the U.S. to surveil officials like Kislyak.
5. Did Flynn commit a criminal offense under the False Statements Act?
As Ryan Goodman wrote last week, it is important to keep your eyes on another dimension to this story:
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.
Under this statute, it is a federal offense for someone who “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully…makes any materially false, fictitious, or fraudulent statement or representation.”
Some of the most famous people convicted under the act include Rod Blagojevich and Scooter Libby.
At Tuesday’s press briefing, Spicer said that there was “exhaustive and extensive questioning of Flynn,” who apparently persisted in his misrepresentation of the phone call. Spicer said that Flynn’s statements and omissions created “a critical mass” in which trust in him became unsustainable.
Whether Flynn made false representations “knowingly and willfully,” and whether the questioning involved the Justice Department and the kind of procedure envisioned by the False Statements Crime depends on facts not in the public record. [Update: The New York Times is reporting that the FBI questioned Flynn during the first few days of the administration.]
If in fact Flynn may be guilty of committing a crime under the False Statements Act, he could be offered a deal to provide information in separate investigations of Trump campaign associates.
Kate Brannen is the deputy managing editor of Just Security and a nonresident senior fellow at the Brent Scowcroft Center on International Security at the Atlantic Council.
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 to 2016).