May 8, 2020

Yesterday’s attempt by the Department of Justice to withdraw the case against Trump's former National Security Advisor Michael Flynn after he had already pled guilty has roiled the country with its assault on the rule of law. Flynn pled guilty to lying to the FBI about five phone calls between himself and the Russian ambassador, Sergey Kislyak, on December 29, the same day the Obama administration announced retaliatory measures for Russian interference in the 2016 election. Flynn told the officials that he and Kislyak did not talk about lifting Russian sanctions after Trump was inaugurated, but news quickly broke that they had. He resigned, pled guilty, and cooperated with the investigation of Special Counsel Robert Mueller into Russian interference in the 2016 election.

Flynn resigned on February 13, 2017, and the next day Trump summoned FBI Director James Comey to the Oval Office and asked him to drop the case against Flynn. Comey continued to investigate Russian connections to the Trump campaign, and Trump fired him on May 9, 2017. The next day he met in the Oval Office with Russia’s foreign minister, Sergey V. Lavrov, and with Kislyak. He told the men that “I just fired the head of the FBI. He was crazy, a real nut job…. I faced great pressure because of Russia. That’s taken off.” He added: “I’m not under investigation.” American journalists were barred from the event, but Russian journalists took photos. Comey’s firing led to the appointment of Special Counsel Robert Mueller to investigate Russian interference in the 2016 election, with Mueller essentially taking over where Comey left off.

Today we learned that the DOJ move to dismiss the case against Flynn came after a phone call yesterday between Trump and Russian President Vladimir Putin in which they discussed the US investigation into Russian interference in the 2016 election. While the White House simply said that the two leaders had discussed the pandemic, arms control, and the 75th anniversary of Victory in Europe day, Trump told reporters: “I said, ‘You know, it’s a very appropriate time, because things are falling out now and coming in line showing what a hoax this whole investigation was, it was a total disgrace, and I wouldn’t be surprised if you see a lot of things happen over the next number of weeks…. This is just one piece of a very dishonest puzzle.”

First off, let’s be clear that the US intelligence community, Special Counsel Robert Mueller, and the bipartisan Senate Intelligence Committee, all have concluded that Russia interfered in the 2016 election to help Trump’s campaign. In January 2017, shortly before Trump took office, Director of National Intelligence James Clapper released a report that aggregated the findings of the FBI the CIA, and the NSA (National Security Agency, which operates under the authority of the Director of National Intelligence).

It said: “Russian efforts to influence the 2016 US presidential election represent the most recent expression of Moscow’s longstanding desire to undermine the US-led liberal democratic order, but these activities demonstrated a significant escalation in directness, level of activity, and scope of effort compared to previous operations. We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election. Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump. We have high confidence in these judgments.”

Since this assessment, Trump has attacked FBI agents for launching an illegal investigation and setting out to destroy him for political reasons. But the bipartisan Senate Intelligence Committee, chaired by Republican Senator Richard Burr of North Carolina, has consistently supported the work of the intelligence community. On April 21, 2020, it released the fourth of five volumes about Russian interference in 2016. This volume examined the “sources, tradecraft, and analytic work behind the 2017 Intelligence Community Assessment (ICA) that determined Russia conducted an unprecedented, multi-faceted campaign to interfere with the 2016 U.S. presidential election.” In other words, was the FBI out to get Trump, or was it doing its business the way it should?

Like the previous ones, this volume agreed with the intelligence community’s assessment that Russia had interfered in the 2016 election to favor Trump. It concluded that intelligence analysts were under “no political pressure to reach specific conclusions.” Chairman Burr said “The ICA reflects strong tradecraft, sound analytical reasoning, and proper justification of disagreement in the one analytical line where it occurred.” Additionally, Burr warned that Russian interference is ongoing, and threatens the 2020 election.

The Mueller Report also established that Russia interfered in the 2016 presidential election. Russian operatives “carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton,” and they stole emails from the Democratic National Committee, as well as Democratic officials, and released the stolen documents.

But that’s not all from the Mueller Report. It “identified numerous links between the Russian government and the Trump Campaign.” The next sentence is difficult, but it’s important to read the original, and the one after it, because they are so very deliberately worded: “Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Then it added: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.”

Essentially, the Mueller Report says that the Russians wanted to help Trump win, and the Trump campaign was willing to accept help, and that there was evidence the two sides were working together, but Mueller did not have enough evidence—in part because witnesses were lying or withholding evidence—to make a criminal indictment.

Still, Trump has spent his whole presidency trying to convince Americans that all of these independent career officials and elected officials are persecuting him because they didn’t want him to be elected (although, of course, if so, all their efforts were for naught, because he IS president, and no one has seriously challenged his election). In addition to attacking the intelligence community, he has tried to advance the theory that it was Ukraine, not Russia, that attacked the 2016 election-- a theory that in her testimony before the House Intelligence Committee Russia expert Fiona Hill explained was Russian propaganda.

And now, Trump’s loyalist in the Department of Justice, Attorney General Barr, has thrown out the findings of his own Justice Department inspector general, Michael Horowitz, who concluded in December 2019 that the FBI investigation of Trump’s campaign was not politically motivated, and that it was begun legitimately. The argument for throwing out the Flynn case is that the FBI interview in which Flynn lied did not have “a legitimate investigative basis,” and therefore the statements were not material even if they were false. This is directly counter to what the DOJ’s own inspector general established.

Barr has appointed his own special inspector to look into the origins of the Russia probe. He tapped Connecticut U.S. Attorney John Durham, whose inquiry quietly shifted to become a criminal investigation last October. Some observers are concerned that Durham will prosecute those involved in the Russia investigation to give Trump political fodder before the 2020 election. Trump’s comments to reporters today, along with a tweet, were ominous. He tweeted: “Yesterday was a BIG day for Justice in the USA…. Congratulations to General Flynn, and many others. I do believe there is MUCH more to come! Dirty Cops and Crooked Politicians do not go well together!"

It seems equally likely to me that Trump is simply undermining opposition in the intelligence community so that he can move to lift the sanctions Russia so badly wants gone. In any case, Russia looks to be as big an issue in 2020 as it was four years ago.

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Notes:

https://www.nytimes.com/2017/05/16/us/politics/james-comey-trump-flynn-russia-investigation.html

https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html

Phone call: https://www.bloomberg.com/news/articles/2020-05-07/trump-says-he-discussed-russia-hoax-with-putin-in-phone-call

https://www.dni.gov/files/documents/ICA_2017_01.pdf

https://www.intelligence.senate.gov/press/senate-intel-releases-new-report-intel-community-assessment-russian-interference

Mueller report: https://www.justice.gov/storage/report.pdf

Fiona Hill:

https://www.washingtonpost.com/national-security/inspector-general-report-trump-russia-investigation/2019/12/09/d5940d88-184c-11ea-a659-7d69641c6ff7_story.html

https://www.usatoday.com/story/news/politics/2020/05/08/michael-flynn-doj-continues-dismantling-robert-mueller-investigation/3095300001/

https://www.nytimes.com/2019/10/24/us/politics/john-durham-criminal-investigation.html