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Two years ago this month, the set-up of Lt. General Michael Flynn began. And now that Special Counsel Robert Mueller has recommended the lightest sentence possible for Flynn’s crime of lying to the FBI in 2017, Americans are reminded that the real criminals—top officials at our nation’s most trusted agencies—have yet to be charged for illegally leaking classified information about Flynn to the news media in an effort to sabotage Donald Trump’s presidency.
Flynn was toward the top of Barack Obama’s enemies list. Forced out of the Defense Intelligence Agency in 2014 by Obama loyalist James Clapper, Flynn joined the Trump campaign and became an outspoken critic of Obama and Hillary Clinton. Famously, he led the “lock her up” chants at the Republican National Convention. Ten days later, James Comey’s FBI opened up a counterintelligence probe into possible election collusion between the Trump campaign and Russia. Flynn was one of four campaign associates targeted by the agency for his “suspected Russian ties.” (It’s unclear whether Comey also obtained a FISA order on Flynn, as he had on Carter Page.)
Obama warned Trump not to hire Flynn during their post-election meeting in the Oval Office on November 10. When Trump defied that advice, Team Obama made him pay.
In December 2016, Flynn held several conversations with Sergey Kislyak, the Russian ambassador to the United States. Trump’s incoming national security advisor legally and appropriately spoke with Kislyak about a number of topics, including a scheduled call between the nation’s two leaders after the inauguration.
Logan Act Hype
What Flynn may not have known at the time is that his conversations—and perhaps all of his communications—with the Russian diplomat were being monitored by James Comey’s FBI. Someone in the Obama Administration illegally leaked details about Flynn’s call to Washington Post reporter David Ignatius.
On January 12, Ignatius reported that “according to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama Administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions?”
Ignatius was the first reporter in this election saga to introduce Americans to the Logan Act, an unused and potentially unconstitutional 1799 statute that bars U.S. citizens from interfering in foreign policy. Flynn was said to be in violation of it because allegedly he discussed U.S. sanctions with Kislyak. The article—cited in Mueller’s sentencing report on Flynn—set off a chain reaction, including an interview by the FBI and subsequent trip to the White House by acting Attorney General Sally Yates, who warned Trump’s lawyer that Flynn hadn’t told the truth about his discussions with Kislyak and therefore could be vulnerable to Russian blackmail. (LOL)
When Trump’s team defended Flynn from the allegations, holdovers in the Justice Department turned up the heat.
Another Washington Post article in February, which cited “nine current and former officials, who were in senior positions at multiple agencies at the time of the calls, [and] spoke on the condition of anonymity to discuss intelligence matters,” claimed Flynn did indeed discuss sanctions contrary to his public statements. The details of the conversations were culled from secret intelligence reports and illegally leaked to the Post reporters. (One of the reporters, Adam Entous, is a reliable mouthpiece for Trump foes and the recipient of several illegal leaks of classified or nonpublic information.)
Flynn walked back his initial denial, saying he “couldn’t be certain the topic [of sanctions] never came up.” The day after Flynn resigned amid the growing controversy, the Post published another Entous story disclosing Yates’s private warnings to the White House counsel about Flynn’s vulnerability to Russian blackmail. (Trump had fired Yates for refusing to defend his so-called travel ban.) The February 13 Post story again relied on former and current officials “who spoke on the condition of anonymity to discuss intelligence matters.”
Entous reported how three Trump foes—Yates, Clapper, and former CIA director John Brennan—feared Flynn had put himself in a “compromising position” by misleading Trump Administration officials about his discussions with Kislyak. The transcripts of the phone calls were never released. Flynn pleaded guilty in December 2017 to one count of the lying to the FBI.
During his March 2017 testimony before the House Intelligence committee, Comey confirmed repeatedly under questioning that the disclosure of classified information to a reporter is a felony punishable by up to 10 years in prison.
Citing the Washington Post articles, Rep. Trey Gowdy (R-S.C.) pushed Comey to admit there is no exception for former or current government officials; Gowdy asked how the FBI would investigate the felonious disclosures: “You would start by figuring out, who are the suspects? Who touched the information that you’ve concluded ended up unlawfully in the newspaper and start with that universe and then use investigative tools and techniques to see if you can eliminate people or include people.”
Gowdy went through a list of top Obama officials who might have had access to the intercepted content of Flynn’s calls. A very uncomfortable-looking Comey confirmed that Clapper, Brennan, Yates, former National Security Advisor Susan Rice, and former Attorney General Loretta Lynch would “in theory” have had access to the classified material. Comey also refused to tell Congress whether an investigation into the felonious leaks was underway.
A month later, presumably emboldened by Comey’s tepid response to illegal leaks about classified information, Entous reported on the FISA warrant against Carter Page sourced by “officials [who] spoke about the court order on the condition of anonymity because they were not authorized to discuss details of a counterintelligence probe.” Entous wrote that FISA warrants are “some of the most closely guarded secrets in the world.”
To date, none of the law enforcement or intelligence officials who illegally leaked the information about Flynn has been identified or charged, let alone tried and convicted.
Only one government official—James Wolfe, the security chief of the Senate Intelligence Committee—has been identified as disclosing top secret information to reporters, including his young journo girlfriend, about the Carter Page FISA order. Wolfe has pleaded guilty to one count of lying to the FBI about his illegal disclosures.
The Justice Department allegedly has been investigating since early 2017 more than two dozen illegal leaks. But while the wheels of justice move quickly for Trump associates such as Flynn, Paul Manafort, and Michael Cohen, there is no urgency in nabbing deep state criminals who actually threaten the rule of law and democratic norms. Despite their bluster about the danger that Trump poses to our institutions, it is they—not the president—who are destroying the integrity of those institutions without consequence.
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