A newly-leaked January 29 memo from President Trump’s first legal team to special counsel Robert Mueller suggests the president believed fired national security adviser Michael Flynn was no longer under investigation when he famously asked FBI Director James Comey — by Comey’s account — to let the Flynn case go. With a wealth of previously-unreleased information about the Flynn affair, the memo also supports the contention that the FBI did not believe Flynn lied to the agents who questioned him in the Trump-Russia probe.
The bureau interviewed Flynn on Jan. 24, 2017, about his transition conversations with Russian ambassador Sergey Kislyak. In March 2017, Comey told the House Intelligence Committee that the agents “saw nothing that indicated to them that [Flynn] knew he was lying to them.” Comey said the same thing to the Senate Judiciary Committee at around the same time; chairman Sen. Chuck Grassley, R-Iowa, wrote recently that Comey “led us to believe … that the Justice Department was unlikely to prosecute [Flynn] for false statements made in that interview.”
Now, with the Trump lawyers’ memo leaked to the New York Times, it seems clear that all the key players in the Flynn affair, including the president himself, were aware of the FBI’s assessment in real time. And the president’s knowledge — that the agents did not think Flynn lied, plus strong hints that the investigation was actually over — underlay Trump’s Feb. 14, 2017, statement to Comey that, “I hope you can see your way to letting this go, to letting Flynn go.” Trump’s lawyers argue that the president had no intention to obstruct an investigation he thought was finished.
The leaked memo portrays a confused White House in the administration’s early days, trying to figure out what the Justice Department was up to with its interest in Flynn’s conversations with Kislyak.
Just four days into the administration, on Jan. 24, 2017, Comey and Sally Yates, the Obama holdover acting attorney general, sent FBI agents to the White House to question Flynn about the conversations. Two days later, on Jan. 26, Yates went to the White House to discuss the matter with counsel Don McGahn. The Trump lawyers’ memo quotes from a never-released account written by McGahn (it was dated Feb. 15, 2017) in which McGahn recounted his encounters with Yates. According to McGahn, Yates told McGahn she was worried Flynn had not told the truth to his colleagues in the Trump administration, including Vice President Mike Pence, when he, Flynn, said he had not discussed sanctions with Kislyak.
“Yates expressed two principal concerns during the meeting,” McGahn wrote:
In a footnote, the Trump lawyers add that some on the Trump team, apparently prodded by press reports, had already discussed the issue among themselves and with Flynn before the president took office. They wanted to know, for example, if there were transcripts of the Flynn-Kislyak calls, but soon found that the Justice Department would not tell them even the most basic facts of the Flynn matter. “DOJ leadership would not advise the White House that transcripts of the calls existed, and of concerns about the content of those transcripts, until Jan. 26, 2017, and even then, when asked by the White House, the DOJ refused to confirm that an investigation was underway.”
When Yates left the White House on Jan. 26, Trump officials were still in the dark about what the Justice Department was doing. Later that day, according to the lawyers’ memo, McGahn briefed the president, and then chief of staff Reince Priebus. All agreed they didn’t fully understand what was happening and would have to know more before deciding whether to punish Flynn for misleading Pence and others. Among other concerns, they worried that taking action against Flynn might interfere with a Justice Department investigation, even though they weren’t sure one was actually taking place.
“It was unclear from the meeting with Yates whether an action could be taken without jeopardizing an ongoing investigation,” McGahn wrote in his memo. “President Trump asked McGahn to further look into the issue as well as finding out more about the [Kislyak] calls.”
McGahn’s inclusion of the phrase “without jeopardizing an ongoing investigation” seems to indicate the White House was not trying to obstruct the Flynn probe.
McGahn asked Yates to return to the White House the next day, Jan. 27. According to his account, McGahn asked Yates whether firing Flynn would compromise any ongoing investigation. “Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the DOJ would not object to the White House taking action against Flynn,” McGahn wrote of the meeting.
The White House took that as a hint that there was no investigation of Flynn. McGahn got another hint when he discussed with Yates the fact that the Justice Department had wiretap recordings of the Flynn-Kislyak conversations. “Yates also indicated that the DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak,” McGahn wrote.
Based on that, the White House lawyers concluded: “It seems quite unlikely that if an ongoing DOJ investigation of Lt. Gen. Flynn was underway, the DOJ would approve its key investigation methods and sources being publicized.”
There was one last clue: The FBI had not revoked Flynn’s security clearance. Putting all that together, the White House concluded — guessed, really, given the Justice Department’s refusal to answer questions — that Flynn was not under investigation, or if he had been before, that it was over.
At the same time, Flynn himself was passing on to the White House what he said were assurances from the FBI that he would not face charges. “Lt. Gen. Flynn had told both White House counsel and chief of staff at least twice that the FBI agents had told him he would not be charged,” the White House lawyers wrote:
Of course, one might question Flynn’s word in all this, but what he told the White House at the time was consistent with what Comey told the House and Senate a month later.
On Feb. 13, Trump fired Flynn for lying to the vice president. The next day, Trump had his “letting this go” talk with Comey.
When Comey leaked his memo detailing the “letting this go” conversation — he hoped to set off a firestorm that would lead to the appointment of a special counsel — Trump denied having said it. But the White House lawyers argue that whatever the specific words exchanged, all the top officials at the White House, including the president, believed the FBI probe of Flynn was over and that no action would be taken against Flynn:
On Nov. 30, 2017, after Mueller had taken over the Trump-Russia investigation, Flynn pleaded guilty to one count of lying to the FBI.
In the memo, Trump’s lawyers argue that the president and his aides could not have intended to obstruct the Flynn investigation when its existence “had been neither confirmed nor denied to the White House counsel,” and “they had every reason (based on Lt. Gen. Flynn’s statements and his continued security clearance) to assume was not ongoing.”
“Further, by insisting on and accepting Lt. Gen. Flynn’s public resignation as national security adviser,” the White House lawyers continue, “the president expedited the pursuit of justice while the DOJ and the FBI were apparently taking no action.” And finally: “Far, far from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the president.”
The lawyers’ memo is based on thousands of documents the White House has turned over to Mueller. It covers much more than the Flynn case. But the Flynn matter is one of the key events Mueller is reportedly studying to determine whether the president obstructed justice. From this newly-public material, that appears to be a hard case to make.
