Since the Special Counsel’s Office’s (SCO) much anticipated sentencing memo for Michael Flynn was heavily redacted, most of the early response has been aimed at guessing what was included that we were prevented from reading. There’s plenty of quality speculation (see, e.g., Nancy LeTourneau on Jared Kushner and Marcy Wheeler on Reza Zarrab). Byron York, however, is stuck in his own right-wing misinformation bubble.
It probably doesn’t behoove the right to spend a whole lot more time treating Michael Flynn as a martyr now that it’s clear that he sat for nineteen separate meetings with the SCO, but they invested an enormous amount of time in that effort over the last two years. York is really stuck on two talking points that they developed.
The first is that the intelligence community (and outgoing Obama administration) originally went after Flynn for possibly violating the Logan Act, which prohibits negotiations by unauthorized persons with foreign governments having a dispute with the United States. Enacted in 1799, the law has almost never been enforced, and it has never resulted in a conviction. For York, this was a disingenuous pretense for going after the Trump transition team.
The second talking point revolves around the fact that the FBI agents who originally interviewed Michael Flynn did not report back that they detected any signs of deception on Flynn’s part. When he was still FBI director, James Comey admitted this to the House Intelligence Committee and (reportedly) to the Senate Judiciary Committee, too. Andrew McCabe, then serving as the FBI’s deputy director, confirmed it.
Taken in tandem, these two arguments created a narrative that Flynn had done nothing illegal or wrong by talking to Russian ambassador Sergey Kislyak during the transition, and that he hadn’t actually lied when he was questioned about those conversations. In other words, Flynn was being wrongly persecuted.
Shortly after it was announced on December 1, 2017 that Michael Flynn had become a cooperating witness, I addressed York’s argument in a piece called It’s Not About the Logan Act. I explained that on January 24th, 2017 when the FBI first questioned Michael Flynn, they considered him a likely Russian spy and that it was part of a longstanding counterintelligence operation. As evidence for this, I pointed out that the day before Flynn was forced to resign, it was reported through a former NSA analyst and counterintelligence officer that agencies were withholding sensitive information from the White House because “There’s not much the Russians don’t know at this point. Since January 20, we’ve assumed that the Kremlin has ears inside the [situation room].”
In my September 21, 2017 piece Were Manafort and Flynn Recruited?, I discussed methods that spy agencies use to identify and recruit potential traitors, and I was fairly succinct about Michael Flynn.
Michael Flynn, however, is more in the classic mode of the disaffected recruit. Canned by the Obama administration, he was badly wounded. That he would be approached by Russians and invited to sit at a head table with Putin is not surprising. That he was given large contracts and asked to appear on the RT cable news network is exactly how you’d expect a pissed-off former head of the Defense Intelligence Community to be treated by his handlers. That he immediately opened himself up to blackmail is also obvious.
That wasn’t idle speculation on my part. In May 2017, CNN reported that intercepted Russian communications during the campaign had put Flynn under extreme suspicion.
Russian officials bragged in conversations during the presidential campaign that they had cultivated a strong relationship with former Trump adviser retired Gen. Michael Flynn and believed they could use him to influence Donald Trump and his team, sources told CNN.
The conversations deeply concerned US intelligence officials, some of whom acted on their own to limit how much sensitive information they shared with Flynn, who was tapped to become Trump’s national security adviser, current and former governments officials said.
“This was a five-alarm fire from early on,” one former Obama administration official said, “the way the Russians were talking about him.” Another former administration official said Flynn was viewed as a potential national security problem.
The conversations picked up by US intelligence officials indicated the Russians regarded Flynn as an ally, sources said.
Also in May 2017, I did a piece called Michael Flynn is in a World of Pain in which I laid out a long but still badly incomplete list of his legal vulnerabilities. I noted that he had been on the radar of our counterintelligence folks for a long time, and that suspicions about his loyalties may have even played a role in his dismissal as the chief of military intelligence.
Two things pointed that way. The first was that he had traveled to Moscow in 2013 and given a speech at the headquarters of the GRU, the Russian military intelligence agency that would later be blamed for the hacks of the DNC, DCCC, and other Democratic operatives including John Podesta. As Flynn told Dana Priest in August 2016, “I went there on a fully approved trip. I had a great trip. I was the first U.S. officer ever allowed inside the headquarters of the GRU. I was able to brief their entire staff. I gave them a leadership OPD [professional development class on leadership] and talked a lot about the way the world’s unfolding.”
As he said, that trip to GRU headquarters was approved. But he had planned on doing a second meeting in 2014. Authorization for the second trip was denied and he was fired shortly thereafter. Part of the problem was that he wanted to bring a young Russian woman he had met at Cambridge University along on the trip to serve as a translator. Her name is Svetlana Lokhova and she was suspected of being a spy. For a fuller explanation on this part of the Flynn saga, read my original piece.
There are alternative explanations for why Flynn didn’t make the trip (like the intervening Crimean crisis) and his firing (poor management), but what he did next really aroused consternation. As a then senior Obama administration aide remarked “It’s not usually to America’s benefit when our intelligence officers—current or former—seek refuge in Moscow.” And that’s how Flynn’s immediate post-military career was interpreted.
“It was extremely odd that he showed up in a tuxedo to the Russian government propaganda arm’s party,” one former Pentagon official told me.
That was a reference to Flynn’s attendance at Vladimir Putin’s head table (along with Jill Stein) for the December 2015 anniversary celebration of the founding of the Russia Today (RT) cable news network. Flynn made appearances on RT during that visit, and he later contracted with them and used his time to be very critical of U.S. foreign policy. That he did not seek permission and lied about being paid only added to the problem, as these mistakes added criminal liabilities and the obvious threat of blackmail to what already looked like willingly disloyal behavior from a retired three-star general.
All of this is context for understanding what the FBI was thinking when they questioned Flynn on January 24, 2017. But it’s also important to know that the FBI didn’t need to guess whether Flynn was being honest with them because they had audio recordings and transcripts of his phone calls with Ambassador Sergey Kislyak. He may not have seemed deceptive at the time, but he was lying and they knew it.
That Flynn was convinced to cooperate isn’t much of a mystery, but it can be confusing if you believe that the only threat he was facing was a charge of being dishonest that carried a maximum sentence of six months in prison. The truth is a lot more complicated.
In addition to being a suspected turncoat who was amazingly placed in the position of National Security Adviser, Flynn faced potential charges that ranged from engaging in a conspiracy to obtain Clinton’s emails, to failure to disclose serving as an agent of a foreign power (Turkey), to lying on security clearance applications, to violating the Emoluments Clause as a former military officer, to, in the most extreme example, conspiracy to kidnap.
He has escaped accountability for all of this and now faces the real prospect of getting no jail time at all. Not only that, but the sentencing memo treats him as a mostly honorable man.
The defendant’s history and characteristics present mitigating and aggravating circumstances. As detailed in the Presentence Investigation Report (“PSR”), the defendant’s military and public service are exemplary. He served in the military for over 33 years, including five years of combat duty, led the Defense Intelligence Agency, and retired as a 3-star Lieutenant General. See PSR (Doc. 44) at ¶¶ 70-71. The defendant’s record of military and public service distinguish him from every other person who has been charged as part the SCO’s investigation.
The government’s official position is that Flynn’s public service has been “exemplary,” which is hardly what the counterintelligence community thinks about Flynn’s record. And, as an added bonus, it appears that Flynn’s son will also escape any criminal penalties even though he could easily be charged under the Foreign Agents Registration Act.
Under the circumstances, it’s not hard to see how it might take 19 interviews for the SCO to cover all the ground. But it’s very hard to see how Byron York can still be yammering on about the injustice of using the Logan Act or insisting that Michael Flynn told the truth when questioned by the FBI.
It seems like the real injustice is that Flynn will not be locked up, but we will have to see what we’re getting in return before we made a final determination. The first and most important counterintelligence job was to get Michael Flynn removed as National Security Adviser since he was considered (and actually was) completely compromised by the Russians after failing to disclose his financial dealings with them. That job was accomplished with the silly threat of the Logan Act, but that was merely for public consumption.
Maybe Byron York will figure this out before Mueller explains it to him. For now, he’s still feeding a line of fantasy to his right-wing audiences. But it’s like a bad hangover. Trump does not want people to think Flynn is a good man wrongly accused by the Deep State. Not anymore.
Flynn is now a rat. He’s weak. Like Michael Cohen, he’s getting off easy for all the crimes he committed that have “nothing to do” with the president. Trump wants people to think he agreed to lie to save his skin, unlike that stalwart hero Roger Stone, who is taking the Fifth.