The Railroading of Michael Flynn

In their final encounter during the transition following the 2016 election, Donald Trump’s incoming national-security adviser surprised Barack Obama’s outgoing national-security adviser. Susan Rice writes in her memoir that the Michael Flynn she was dealing with had nothing in common with the firebrand she had watched leading a “lock her up” chant against Hillary Clinton at the Republican National Convention a few months earlier. Flynn, a retired general and the former head of the Defense Intelligence Agency, was respectful and subdued, eager for her advice. When Rice extended her hand and wished him the best of luck, Flynn asked her for a hug.

He needed it more than he could possibly have known.

Flynn did not then know that leaders of the FBI and the Justice Department were out for his head. They suspected he was a Russian agent—despite the fact that a counterintelligence investigation into Flynn launched five months earlier by the FBI had found no evidence for such a claim. Three weeks into the Trump administration, the Flynn hunt bagged its trophy. The newly installed national-security adviser was compelled to quit. The stated rationale was that Flynn had lost the confidence of the new vice president because he had supposedly misled Mike Pence about some phone calls between Flynn and the Russian ambassador to the United States. That those phone calls became public knowledge was almost certainly the result of Obama-administration leaks of highly sensitive intelligence information.

That was February. In May, the Flynn hunt resumed. Robert Mueller was named a special prosecutor tasked with investigating Russian interference in the 2016 election and possible ties to Donald Trump and his presidential campaign. After months of aggressive targeting, Mueller succeeded in getting Flynn to plead guilty to lying to the FBI—even though the actual FBI agents who had interviewed Flynn assessed that he hadn’t lied at all. Still later, when Flynn’s lawyers sought documents that would clear him of the charge he had lied, the Justice Department fought to keep them secret.

Finally, in May 2020, another Justice Department investigation was concluded. The Trump administration went to court and moved to drop the federal government’s case. As it did so, it released shocking documents from inside the executive branch that reveal the extent of the injustices done to Flynn. The stunning response from senior Obama officials, including Obama himself, was to condemn the supposed politicization of the Trump Justice Department. Now the Judge hearing Flynn’s case has paused the motion. Michael Flynn is still in limbo.

This is the story of the railroading of Michael Flynn.

I.

In August 2016, the FBI launched a counterintelligence probe into Flynn, who had become a key member of Trump’s foreign-policy team two years after Barack Obama humiliated Flynn by removing him from his post at the head of the Defense Intelligence Agency. The FBI and the Justice Department were spooked by Flynn’s proximity to the Republican nominee for president. They knew Flynn had taken money from RT, the Russian propaganda network dedicated to boosting Vladimir Putin, and had been seated next to Putin at a dinner in Moscow he had been paid to attend. Given how peculiarly well-disposed Trump and his campaign had been toward Russia, the notion that something untoward might have been going on didn’t seem far-fetched—especially since Flynn was openly bitter about how Obama had defenestrated him.

But the anti-Flynn probe came up empty, and by January 4, 2017, the case agent in charge of the probe had drafted the paperwork necessary to close the file on Flynn. At the last minute, the case agent’s supervisor told the case agent to hold off because FBI Director James Comey wanted to keep the case open. Comey had learned that during the previous week, Flynn had had the misfortune of returning a phone call from the Russian ambassador to the United States, Sergey Kislyak, while Flynn was on vacation in the Dominican Republic. The FBI was listening in.

In those December 29 calls (Flynn had had to phone back a few times because reception was choppy), Flynn had urged Kislyak not to escalate tensions with the United States. Obama had just expelled 35 of Russia’s spies and had levied minor sanctions against Putin’s intelligence agencies as a rebuke for election meddling. According to the motion to drop his prosecution, Flynn’s request was “consistent with him advocating for, not against, the interests of the United States.” Moreover, Flynn’s communications with Kislyak “gave no indication that Mr. Flynn was being directed and controlled by the Russian federation.”

At a White House meeting on January 5, 2017, President Obama asked the attendees what they thought about sharing the most privileged information his intelligence agencies had gathered about Russia’s efforts to meddle in the 2016 election with the incoming Trump team. Present were Joe Biden, Rice, Comey, and Deputy Attorney General Sally Yates. According to both Rice’s memoir and a memo memorializing the meeting (dated January 20, 2017), the president stressed that everything the FBI did in this sensitive matter should be “by the book.” In fact, nothing was done by the book—not by Obama’s deputies and not by Obama. At the end of the meeting, Obama pulled Yates and Comey aside. It was at this point that Yates learned from Obama of the Flynn–Kislyak call. Obama’s full knowledge of the Flynn investigation is still unknown. According to newly declassified transcripts of her interview with Mueller’s team, Yates grew increasingly frustrated over the next two weeks with Comey’s efforts to keep the Trump team in the dark about the Flynn probe because she found Comey’s explanations of his investigation confusing and inconsistent.

First of all, Comey raised the prospect in the January 5 meeting that Flynn may have violated the Logan Act. The act, which makes it a crime for a private citizen to engage in the making of U.S. foreign policy without explicit authorization from the executive branch, is a 220-year-old relic—a product of the John Adams administration. It has never been successfully used to prosecute anyone, and no American has been charged with breaking it since before the Civil War. Bringing up this old chestnut suggests that the FBI was looking for any conceivable pretext to keep its Flynn hunt alive. To that end, the FBI officer overseeing the Flynn case, Peter Strzok, eagerly provided a Congressional Research Service report on the history and utility of the Logan Act to FBI lawyer Lisa Page, who was working in the office of Comey’s deputy, Andrew McCabe.¹ In his 2019 memoir, McCabe writes that in “high-level discussion at the relevant agencies and at Justice, the question arose: Was this a violation of the Logan Act?”

Yates, we learn from the Mueller transcript, was dubious about predicating a criminal investigation on this ridiculously antiquated and never-used law. Indeed, Comey told the House Intelligence Committee in March 2017 that the FBI had not been pursuing the question of Flynn’s supposed violation of the Logan Act because the Justice Department had not asked the FBI to investigate the matter.

And yet the Logan Act was part of the FBI’s ongoing investigation. Handwritten notes from March 2017 by former Acting Assistant Attorney General Dana Boente said the broader FBI probe into the possible conspiracy between the Trump campaign and Russia in part “focused on the Flynn investigation and potential criminal violations of the Logan Act.” (This detail comes from the December 2019 report on the FBI’s investigation issued by Justice Department Inspector General Michael Horowitz.)

Moreover, a recently declassified “scope memo” on the Mueller probe—a document defining the range of issues Mueller was to examine—drafted on August 2, 2017, by then Deputy Attorney General Rod Rosenstein authorized Mueller’s team to investigate whether Flynn had “committed a crime or crimes by engaging in conversations with Russian government officials during the period of the Trump transition.” The only crime or crimes that could be found in this case would either be outright espionage or a violation of the Logan Act.

The idea that Flynn had behaved illegally, let alone unethically or immorally or unconventionally, in discussing U.S. foreign policy with the Russians during the transition is beyond absurd. He was the incoming national-security adviser. Phone calls between incoming senior administration officials and foreign governments are common during a presidential transition. And given what is now known about the context of that phone call, the initial spin in the press that Flynn’s conversation with Kislyak had undermined the outgoing administration’s policy was misleading.

Why this reliance on the Logan Act in the first place? According to regulations, FBI investigations into “federal crimes or threats to national security or to collect foreign intelligence” require a “predicate.” The FBI cannot establish the predicate at will, the rules state: “The initiation of a predicated investigation requires supervisory approval at a level or levels specified by FBI policy.” It seems likely that Comey was looking for a rationale to continue the FBI’s pursuit of Flynn because the original rationale—the question of whether Flynn was a Russian asset—had come up empty. He could no longer legally investigate Flynn because the initial search had reached its end.

Only it hadn’t.

II.

As it happens, the FBI case manager for the Flynn investigation, Joe Pientka, had indeed drafted a memo closing the Flynn investigation—but he hadn’t filed it formally. Because of Pientka’s “incompetence” (the word was Peter Strzok’s, in a delighted text exchange on January 4, 2017, with his paramour Page), the probe was not shut down and a new predicate wasn’t required. In his motion to dismiss the prosecution of Flynn, U.S. Attorney Timothy Shea said this “sidestepped a modest but critical protection that constrains the investigative reach of law enforcement: the predication threshold for investigating American citizens.”

Until the end of April 2020, Pientka’s memo was kept from Flynn’s counsel and the public. It has been released only now because career U.S. attorney Jeffrey Jensen completed his review of Flynn’s case and declassified documents relevant to it. The Pientka memo provides far more detail on the status of the Flynn investigation than was previously known—and what it shows isn’t pretty.

We learn from the memo that after the FBI ran down a lead provided by a confidential human source about Flynn’s contact with a person with links to the Russian state, the bureau could not confirm that any such relationship ever existed. That source was likely Stefan Halper, a fellow at Cambridge University and an intelligence community insider. Halper was being paid by the U.S. government to inform on Flynn as well as another Trump campaign aide, George Papadopoulos.

Flynn’s suspected contact, whose name is redacted in the memo, is likely Svetlana Lokhova. She is a Russian-born academic who, the Guardian and other news outlets reported in 2017, had traveled in the same car with Flynn as they left a Cambridge University seminar in 2016.

These stories made it seem as if Lokhova was luring Flynn into a honey trap, during which sex is offered for blackmail leverage later on. “The CIA and FBI were discussing this episode, along with many others, as they assessed Flynn’s suitability to serve as national security adviser,” the Guardian reported.

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