Michael Flynn
Credit: DoD photo by Erin A. Kirk-Cuomo/Flickr

Carol Lee and Julia Ainsley of NBC News wrote a helpful piece that explains that Robert Mueller is focusing heavily on an obstruction of justice case against the White House, providing a good refresher and timeline.

Special counsel Robert Mueller is trying to piece together what happened inside the White House over a critical 18-day period that began when senior officials were told that National Security Adviser Michael Flynn was susceptible to blackmail by Russia, according to multiple people familiar with the matter.

The questions about what happened between Jan. 26 and Flynn’s firing on Feb. 13 appear to relate to possible obstruction of justice by President Donald Trump, say two people familiar with Mueller’s investigation into Russia’s election meddling and potential collusion with the Trump campaign.

I have no problem with the special counsel’s office looking at obstruction charges, but I think it will be a shame if that is all he comes up with that he feels he can bring as evidence of criminal behavior. I think we should be focused first and foremost on the underlying behavior that led to a cover-up.

To illustrate my point, let’s go back in time a bit.

On December 1st, 2016, Jared Kushner and Michael Flynn had a meeting at Trump Tower with Russian ambassador Sergey Kislyak. At this meeting, they allegedly discussed a possible easing of U.S. sanctions. Kushner also proposed using Russian diplomatic facilities in the U.S. to set up a secret communications backchannel so that the transition team and the Russians could communicate without U.S. intelligence services overhearing. A couple of other things happened at this meeting that should interest us.

In addition to their discussion about setting up the communications channel, Kushner, Flynn and Kislyak also talked about arranging a meeting between a representative of Trump and a “Russian contact” in a third country whose name was not identified, according to the anonymous letter.

It appears that this arranged meeting actually took place on January 11th, in the Seychelles, an archipelago of 115 islands in the Indian Ocean, off East Africa. Erik Prince, the brother of Secretary of Education Betsy DeVos, met there with Kirill Dmitriev, CEO of the Russian Direct Investment Fund (RDIF). Apparently, United Arab Emirates Crown Prince Mohammed bin Zayed brokered the whole thing. You may remember that it was the crown prince’s secret meeting at Trump Tower that caused Susan Rice to unmask the identity of several members of Trump’s team and briefly led to a controversy over whether Trump Tower had been bugged during the campaign.

The crown prince, Sheikh Mohammed bin Zayed al-Nahyan, arrived in New York last December in the transition period before Trump was sworn into office for a meeting with several top Trump officials, including Michael Flynn, the president’s son-in-law, Jared Kushner, and his top strategist Steve Bannon, sources said.

The Obama administration felt misled by the United Arab Emirates, which had failed to mention that Zayed was coming to the United States even though it’s customary for foreign dignitaries to notify the US government about their travels, according to several sources familiar with the matter.

As further evidence that something nefarious was going on, last week The Intercept revealed that Erik Prince has been working with Oliver North and others to set up a private intelligence service that the president can use without having to go through normal channels on the National Security Council.

The Trump Administration is considering a set of proposals developed by Blackwater founder Erik Prince and a retired CIA officer — with assistance from Oliver North, a key figure in the Iran-Contra scandal — to provide CIA Director Mike Pompeo and the White House with a global, private spy network that would circumvent official U.S. intelligence agencies, according to several current and former U.S. intelligence officials and others familiar with the proposals. The sources say the plans have been pitched to the White House as a means of countering “deep state” enemies in the intelligence community seeking to undermine Donald Trump’s presidency.

Something else that arose out of the December 1st meeting with Sergey Kislyak was a December 13th Trump Tower meeting with Vnesheconombank (VEB) CEO Sergey Gorkov. Kushner took the meeting with Gorvok at the suggestion of Kislyak, and that’s of interest for a lot of reasons. First of all, Gorvok is a graduate of “the academy of the Federal Security Service, or FSB, the domestic intelligence arm of the former Soviet KGB.” Second, Putin personally appointed Gorvok to the position “less than a year before his encounter with Kushner.” Third, Vnesheconombank was and is one of the Russian entities targeted by U.S. sanctions.

It’s important to understand that these meetings may not have been illegal in any obvious or straightforward sense. But they were secretive for a reason; primarily, that knowledge of them would have been explosive at the time.

On December 9th, President Obama announced that he was ordering a comprehensive review of Russian interference in U.S. elections. On December 16th, in a press briefing, President Obama expressed anger at what he saw as Russian interference and the role of leaks in the outcome of the election. This led to tough questioning of the Trump transition team. For example, during an appearance on Face the Nation on the 18th, Kellyanne Conway felt compelled to deny that there had been any contacts between the Trump team and the Russians at all.

John Dickerson: All right. We are not going to get any insight into the president-elect’s thinking here, but let me try this. Did anyone involved in the Trump campaign have any contact with Russians trying to meddle with the election?

Kellyanne Conway: Absolutely not. And I discussed that with the president-elect just last night. Those conversations never happened. I hear people saying it like it’s a fact on television. That is just not only inaccurate and false, but it’s dangerous.

What Conway said wasn’t even remotely true; at a minimum, we now know of contacts betweens the campaign and Russians “offering dirt” on Hillary Clinton. But the main point here is that the allegations were being made, and that at the very same time, Kushner and Flynn and Bannon were working closely with the Russians to set up secret backchannels and to lay the groundwork for lifting sanctions.

So, when we flash forward to the critical 18-day period between when senior officials were told that National Security Adviser Michael Flynn was susceptible to blackmail by Russia and when he was actually fired, we have to keep in mind that everyone assumed there would be something seriously wrong if it turned out to be true that Flynn had talked to Kislyak on December 29th about the sanctions. Literally no one was thinking that it would have all been fine just so long as Flynn didn’t lie to the FBI when he was asked about it.

For starters, why was the FBI interviewing Flynn about this subject at all on January 24th? He had only been sworn in two days prior. It takes a special kind of effrontery to call up the newly minted National Security Adviser four days after the inauguration and tell him that you’re sending over FBI officers to grill him about conversations that he had with the Russian ambassador on December 29th. They already knew what he had said because they’d listened to intercepts of the conversations. They weren’t going there to discuss the merits of a policy change. Were they seriously thinking that they might charge Flynn with a violation of the Logan Act, an 18th century statute under which no one has ever been successfully prosecuted?

Ostensibly, they were concerned that, after news had leaked that Flynn had talked to Kislyak in a Washington Post article on the 12th, the transition team, including Mike Pence, had gone on television and said that sanctions weren’t discussed. But why was this denied? Was it denied because it would have been illegal? Or was it denied because everyone would have seen it as strong evidence that there had been a quid pro quo between the Russian leakers and the Trump campaign?

Amusingly, it seems that White House counsel Don McGahn didn’t get what was going on initially either. He had met with acting U.S. Attorney General Sally Yates on January 26th, who told him that Flynn had not been honest with Mike Pence. She didn’t divulge whether he had been honest with the FBI on the 24th, but it was a safe assumption that he had not. McGahn and Yates met again the next day.

Based on Yates’s testimony, McGahn’s tone appears to have hardened in his second meeting with Yates the following day, Jan. 27, which took place after he spoke with Trump and other advisers. Yates testified that during that Jan. 27 meeting he questioned her about why it mattered if Flynn misled Pence. “Essentially: ‘What’s it to the Justice Department if one White House official is lying to another?’” she said McGahn asked her.

It was a reasonable question. Why was the FBI taking an interest in Flynn lying to Pence or Pence lying to the American people or really anyone lying to anyone else? That’s politics, right?

But the reply came back that the Russians knew that Flynn had lied and that they almost definitely had documentary proof of it. This meant that they could hold the evidence over Flynn and use it to steer him in their direction.

The White House was not initially impressed with this explanation, and with some reason. Flynn had not acted alone, but upon fairly specific instructions to prevent the Russians from retaliating against the expulsions of 35 “diplomats,” new sanctions, and the closing of two Russian facilities that Obama had announced on December 29th. Trump even explained as much shortly after he fired Flynn in February:

When asked by NBC News’ Kristen Welker on Thursday if he had ordered Gen. Michael Flynn to discuss sanctions with Russia before he took office, President Donald Trump denied the allegation — but then suggested he “would have” if he didn’t think Flynn was already discussing the matter.

“It certainly would have been okay with me [if he had called Russia about sanctions],” Trump said. “I would have directed him to do it if I thought he wasn’t. I didn’t direct him but I would have directed him. That’s his job.”

That ought to be as clear as can be. Flynn had little to worry about in terms of being blackmailed. It was the Trump administration itself that was caught in a lie, and the Russians had little interest in exposing it because the truth was they were on track to having the sanctions lifted.

From the Trump administration’s perspective, Obama’s actions on December 29th were aimed at discrediting Trump’s victory and making it impossible for them to deliver their end of the deal to the Russians. This is clear from an email Michael Flynn’s assistant K.T. McFarland sent on the 29th.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

The White House claims that McFarland was being tongue-in-cheek when she said that the Russians had “just thrown the U.S.A. election” to Trump, and that seems plausible to me. But the email still indicates the thought process of the Trump team at the time. It would have been ridiculous to fire Flynn for doing his job, as the president put it, and discussing an easing of sanctions with the Russians. But it would have been equally unthinkable to admit what Flynn had done because of how it would have been perceived.

It’s the perception of criminality here that is basically taken as a given by almost everyone. Talking to the Russians must be done by secretive electronic backchannels or in a surreptitious meeting in an Indian Ocean archipelago. Contacts with Russians, even while ongoing, must be completely denied. Discussions of sanctions are completely out of bounds, as that would confirm a quid pro quo. Mike Pence has to deny that sanctions were discussed. Flynn will deny it even to the FBI, who he, as an experienced intelligence officer himself, should have known would know that he was lying. The FBI certainly thought the offense was serious enough that it merited interrogation.

But as time passed, it became about something else. Was discussing the sanctions itself a crime? Was it a violation of the Logan Act, for example? Isn’t the new administration entitled to have its own policy on sanctions even if it is unpopular in the intelligence community, in Congress, and with the broader American public? Where’s the underlying crime?

And I suppose we can all get into a big debate with Alan Dershowitz about whether or not it’s a crime to undermine the policy of the lame duck U.S. government when you’re an administration-in-waiting, but back then there wasn’t much dispute about what it all meant. If Flynn was discussing sanctions with the Russian ambassador on December 29th, it wasn’t so much a crime as evidence of collusion during the campaign.

And why was this the case?

Officially, Trump denied that there was proof that the Russians were responsible for the leaks. He should have had no problem with punishing them if he was wrong about that and he was never willing to say that they shouldn’t be punished if they were guilty. He needed them to be innocent in order to discuss lifting rather than strengthening the sanctions. At the time, the intelligence community was telling him that the Russians were responsible. They released their unclassified report on it January 5th and personally briefed Trump about their findings on January 6th. On January 11th, during a press conference, Trump finally conceded that the Russians were responsible, but that only made Flynn’s actions on December 29th more impossible to defend.

All of this informed the administrations’ reaction to the revelation on the 12th that Flynn had been talking to Kisylak on December 29th, and that is why they all denied that sanctions had been discussed. It wasn’t something they could admit, and Flynn wouldn’t even admit it to the FBI when he knew that he was exposing himself to criminal charges for lying.

On January 27th, after learning from McGahn that Flynn had misled the FBI, Trump summoned FBI director James Comey to a private dinner in the Green Room at the White House and said, “I need loyalty, I expect loyalty.” After dismissing Flynn on February 13th, Trump asked Comey in a private February 14th meeting in the Oval Office that he wanted him to drop the FBI’s investigation of Flynn.

This was understandable considering that Flynn had only been following orders, and doubly so if you believe that there was no underlying crime in talking about sanctions with Kisylak.

But Trump knew where an investigation would go, and he wanted to cut it off before it went any further.

He hoped Sessions could contain Comey, but he lied about his own meeting with Kislyak and had to recuse himself. Trump then thought firing Comey would stop the investigation, and he told the Russians as much the next day.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

Who were the Russians in that Oval Office meeting? Russia’s foreign minister, Sergey Lavrov, and the Russian ambassador to the United States, Sergey Kislyak.

So, yes, Robert Mueller can build a case for obstruction of justice, but let’s not forget that there is an underlying crime here. It’s not the act of discussing sanctions or a mere Logan Act violation. It’s collusion with the Russians to exchange help with the election, including criminal theft of electronic files and communications, for relief from the economic sanctions we put on Russia after they seized Crimea.

Martin Longman

Martin Longman is the web editor for the Washington Monthly. See all his writing at ProgressPond.com