The Mueller Report is so dense and detailed that it’s difficult to figure out where to start. So I decided to pick one: Mike Flynn and his discussions with Russian Ambassador Kislyak about the sanctions issued by President Obama in Dec 2016. We’re about to learn a lot more about what he told the Russian ambassador as well as other redacted areas relating to Flynn that are in the Mueller Report.
Let’s start with the key question: Did Trump know and/or direct Flynn’s discussions with Russian Ambassador Kislyak on 12/29/16 to coordinate Russia’s response to Obama’s sanctions against Russia for election interference?
Here is some commentary from me organized around answers from Robert Mueller.
Short Answer : Per Mueller, there was evidence that Trump knew of what Flynn discussed at the time of the meetings, but there wasn’t enough direct evidence, in Mueller’s view, to conclusively establish actual knowledge at the time or in advance of when the Flynn-Kislyak discussions occurred. On a closer read, I think Mueller’s annoyingly restrictive view of circumstantial evidence allowed Trump to escape liability for conspiracy to violate the Logan Act, making false statements, suborning Flynn’s false statements to the FBI (witness tampering) and conspiracy to obstruct justice. It also conveniently allowed Mueller to sidestep the larger question of conspiracy with the Russians to undermine our elections (i.e., treason).
However, what Mueller did do is funnel this whole chapter into an obstruction of justice claim. What Mueller did find is that Trump’s attempts to stop the Flynn investigation met all 3 elements of the obstruction statute (occurrence of an obstructive act, nexus to a criminal proceeding, corrupt intent). Basically, if Mueller couldn’t get confessions on the record, tapes or recordings or other DIRECT EVIDENCE (with a capital D), he erred on the side of not charging for those primary or underlying crimes and instead funneled everything into an obstruction of justice analysis.
Why did Mueller do this? Why did he ignore circumstantial evidence that would be used in any normal prosecution? Answer: 1. Fear of Republican criticism, 2. the OLC memo, and 3. Desire to avoid political instability from a conclusion that the 2016 election result was illegitimate.
Just like Comey, I see Mueller as being too political here, wanting to make sure he had a report that would be immune from charges of partisanship or bias from Republicans, and would be a credible document that could be the engine or driver of an impeachment process that would result in Trump’s resignation. You can’t challenge direct evidence. You can challenge circumstantial evidence. It’s done at trial all the time. Mueller played too political a game here. Nonetheless, you can tell from reading the report that he knows that every one of these folks is lying and covering up, so he didn’t let them all off. He funneled it all into an obstruction of justice analysis.
The OLC memo also, I think, put an element of caution into Mueller’s thinking. In my view he purposefully raised the evidentiary bar so as to avoid the situation of having to indict a sitting POTUS for crimes which are frankly unimaginable by any POTUS in our history. By funneling everything into obstruction, Mueller finds familiar ground that has roots in the history of impeachment (Nixon and Clinton and perhaps Johnson).
In addition, if you take this Flynn-Kislyak matter to its logical conclusion, what it shows is that Trump conspired with the Russians whereby he received, and in some cases actively engaged and encouraged, election help in exchange for pro-Russia policy changes. Nowhere is this more apparent than in the partnership the Russians and the Trump Transition Team undertook to coordinate a response to US sanctions, and to the Obama election interference sanctions in particular. There is little doubt in my mind that Trump gave assurances through Flynn in those 12/29/16 discussions that the sanctions matter would be dealt with when he took office a few weeks later. We might learn something of this from the FBI transcript that is due to be released.
Had Mueller gone where the evidence pointed to, he would have established a long-running conspiracy. That would invalidate the election result and cast the US into uncharted territory. We haven’t had an example of a corrupted election at the federal level where foreign interference and the willing participation of a party were at issue (actually, it happened in 1968). But this example would’ve been unprecedented nonetheless. I don’t think Mueller wanted to go there and funneled everything to obstruction instead.
Long Answer:
Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge. In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak. Flynn told McFarland about the substance of his calls with Kislyak and said they may have made a difference in Russia’s response, and Flynn
recalled talking to Bannon in early January 2017 about how they had successfully “stopped the train on Russia’s response” to the sanctions. (P. 258 of PD, pg 46 of Vol II).
So Trump was at a meeting in which sanctions were discussed and that he was told that Flynn was going to talk to Kislyak? People of no status like Bannon and McFarland knew about this but somehow Trump didn’t know!!! Flynn went into a meeting representing a position that he thought was supported by the then President elect and got an approval by tweet 24 hours after the Russians followed the advice provided by Flynn and we’re expected to believe that Trump didn’t know in real time what was discussed!!! I think this is strong circumstantial evidence that Trump did know. Stuff like this from Mueller is maddening.
It would have been reasonable for Flynn to have wanted the President to know of his communications with Kislyak because Kislyak told Flynn his request had been received at the highest levels in Russia and that Russia had chosen not to retaliate in response to the request, and the President was pleased by the Russian response, calling it a “[g]reat move.” And the President never said publicly or internally that Flynn had lied to him about the calls with Kislyak. But McFarland did not recall providing the President-Elect with Flynn’s read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017…Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would
end “the whole Russia thing.” (P. 258-9 of total PDF, pg 46-7 of Vol II).
So, Mueller sounds naive here (and we know he isn’t). He knows damn well that the reason Trump asked Flynn in February 2017 what was discussed in said meetings b/c he wanted to get distance from the topic and Flynn as he was preparing to make him the fall guy for the ‘Russia thing’. Just days later, he fired Flynn and then told Christie that now that he got rid of Flynn that Russia thing would be over. When Christie scoffed at Trumps naivety, Trump got worried and angry and proceeded to corner Comey in the Oval Office and told him to “let Flynn go”. Clearly, Trump fired Flynn because he thought it would be a way of protecting himself by ending the Russia investigation
What did Trump need to protect himself from? That he knew that Flynn discussed sanctions with Kislyak, that he approved of it, and therefore might have had a role in telling Flynn to lie about that matter to shield Trump from scrutiny. Those lies told by Flynn to other administration officials and the FBI got him nailed for federal crimes and also got him ousted. That’s the real story that Mueller did not tell.
Mueller even admits this sequence of events in the following sentences,
Flynn’s firing occurred at a time when the media and Congress were raising questions about Russia’s interference in the election and whether members of the President’s campaign had colluded with Russia. Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election. The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak. Just hours before meeting one-on-one with Corney, the President told Christie that firing Flynn would put an end to the Russia inquiries. And after Christie pushed back, telling the President that firing Flynn would not end the Russia investigation, the President asked Christie to reach out to Corney and convey that the President liked him and he was part of “the team.” That afternoon, the President cleared the room and asked Corney to “let Flynn go.” (P. 258-9 of total, pg 46-7 of Vol II).
Trump wanted to kill the Flynn story. If he had nothing to do with it, he wouldn’t have cared as much. He would let it blow over like so many scandalous acts and statements. Keep in mind that Trump tweeted support for Russia’s decision to not retaliate on Obama sanctions within 24 hours after Russia made that decision and Flynn had instructed Kislyak to adopt such policy of restraint. Trump’s knowledge of what was discussed (whether he knew before Flynn spoke or became aware shortly afterwards) should have been imputed to Trump based on that tweet alone. We can tell from Trump’s actions that he dated his own knowledge of the Flynn-Kislyak conversations much earlier than Mueller is willing to conclusively say (but he sure does like hinting at it!). Guilty people often act guilty. This isn’t complicated.
If all of this isn’t enough, we learn from Mueller that Deputy National Security Adviser KT McFarland was in effect sitting between Trump and Flynn through this whole process and even briefed Trump. Trump was so worried about McFarland’s first hand information about Trump’s knowledge of the Flynn-Kislyak discussions and timeline that upon firing/reassigning her he asked her to write a statement saying that Trump didn’t know about Flynn’s discussion of sanctions with Kislyak. My god! How more guilty can one act and be spared an indictment!!! El Chapo wished he had this kind of luck!
From Mueller:
Incoming National Security Advisor Michael Flynn was the Transition Team’s primary conduit for communications with the Russian Ambassador and dealt with Russia on two sensitive matters during the transition period: a United Nations Security Council vote and the Russian government’s reaction to the United States’s imposition of sanctions for Russian interference in the 2016 election…As to the sanctions, Flynn spoke by phone to K.T. McFarland, his incoming deputy, to prepare for his call to Kislyak; McFarland was with the President-Elect and other senior members of the Transition Team at Mar-a-Lago at the time. Although transition officials at Mar-a-Lago had some concern about possible Russian reactions to the sanctions, the investigation did not identify evidence that the President-Elect asked Flynn to make any request to Kislyak. Flynn asked Kislyak not to escalate the situation in response to U.S. sanctions imposed on December 29, 2016, and Kislyak later reported to Flynn that Russia acceded to that request. (Vol 1, P. 175)
So Mueller states that McFarland is in the room with Trump when Flynn called about the Obama election sanctions matter in response to Kislyak reaching out to Flynn. This was not a small matter. This was a 5 alarm level matter for the Trump team at the time because the Obama sanctions were a signal that they knew Russia had interfered in the elections and had done so to help Trump. How Russia and Trump responded was important b/c the very act of sanctioning Russia questioned the legitimacy of Trump’s election.
Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals.McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation.They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand. (Vol 1, P. 170)
So are you really trying to tell me that Flynn has this convo by phone with Trump and other senior advisors in the room and Trump didn’t know? Low life Bannon knows and can recall it but no one can recall if Trump knew? Even after Trump tweeted support for Putin adopting the very same recommendation that Flynn advised after talking with what seemed like 6 or 7 folks on the Trump transition team?!! Come on, man! Don’t play a playa’, but apparently Robert Mueller could get played.
It gets even better (or worse). Mueller finds that McFarland briefed Trump personally in real time about the topic of Russia’s response to the Obama imposed election sanctions. Take a look at this gem:
Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean ■■■■■■■ and other Transition Team members were present. During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election.McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians. McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. (Vol 1, Page 171).
Again, there’s way more evidence that Trump knew, was aware, or shortly became aware that his team’s discussions with Kislyak was all about sanctions and that his team coordinated a response with the Russians including a key recommendation of restraint which the Russians followed and Trump affirmed shortly thereafter. Trump must’ve been like, 'Wait, here I am thinking everyone knows that I know, but these dumb fks are too scared to see it so they’re trying to reinvent the wheel with direct evidence. So, if I get these stupid fers to lie, and say stupid st like ‘I don’t recall’ and fall on their swords without a direct fingerprint, I might get off. Hey Rudy! get your b**h ass in here, I gotta job for you!" And that’s kinda what happened.
And to add further insult to injury. Shortly after Trump cornered Comey and told him to ‘let Flynn go’ he directed a request through Priebus to have McFarland clear him of all knowledge of what Flynn did and lied about. Here it is from Mueller:
Shortly after requesting Flynn’s resignation and speaking privately to Corney, the President sought to have Deputy National Security Advisor K.T. McFarland draft an internal letter stating that the President had not directed Flynn to discuss sanctions with Kislyak . McFarland declined because she did not know whether that was true, and a White House Counsel’s Office attorney thought that the request would look like a quid pro quo for an ambassadorship she had been offered.(Vol II, Pg. 3; Pg 215 of total PDF).
In Pulp Fiction, you called Harvey Keitel (The Wolf) when you wanted a mess cleaned up. In the Godfather, the term Michael Corleone uses is ‘settle all family business’. In The Wire, you get a smart dude like Stringer Bell or Prop Joe to align your affairs to keep the cops away. Trump is his own cleaner and settler. In a short time span of about a week or so in Feb 2017, he set Flynn up as the fall guy, told Comey to stop the investigation into Flynn and then told the one other person (KT McFarland) who had direct knowledge of what Trump knew of Flynn’s conversation with Kislyak and about which Flynn later lied about (because she f***ing briefed him in real time!!!). Keep in mind that McFarland also lied to Congress about whether sanctions was discussed and faced prosecution until she confessed to Mueller (he still should’ve charged her). So, who is to say that she wasn’t also directed to lie like Cohen and all the others by Trump through his attorneys? It seems far more likely than not that Trump directed McFarland to lie and only escaped because she cut a deal with Mueller.
Tell me, do people normally ask other people to write a letter confirming that you didn’t do something which you didn’t do? This, frankly, should have been an easy call for Mueller.
On February 22, 2017, Priebus and Bannon told McFarland that the President wanted her to resign as Deputy National Security Advisor, but they suggested to her that the Administration could make her the ambassador to Singapore. The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions. Priebus said he told the President he would only direct McFarland to write such a letter if she were comfortable with it. Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak. McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request. (Vol 2, Pg 42).
Ok, when McFarland says she doesn’t know if Trump directed Flynn, she’s both lying and protecting herself with Trump.
Priebus understood that McFarland was not comfortable with the President’srequest, and he recommended that she talk to attorneys in the White House Counsel’s Office. McFarland then reached out to Eisenberg. McFarland told him that she had been fired from her job as Deputy National Security Advisor and offered the ambassadorship in Singapore but that the President and Priebus wanted a letter from her denying that the President directed Flynn to discuss sanctions with Kislyak. Eisenberg advised McFarland not to write the requested letter. As documented by McFarland in a contemporaneous “Memorandum for the Record” that she wrote because she was concerned by the President’s request: “Eisenberg . …thought the requested email and letter would be a bad idea- from my side because the email would be awkward. Why would T be emailing Priebus to make a statement for the record? But it would also be a bad idea for the President because it looked as if my ambassadorial appointment was in some way a quid pro quo.” Later that evening, Priebus stopped by McFarland’s office and told her not to write the email and to forget he even mentioned it. (Vol II, Pg, 43).
Despite all this, Mueller concludes that the effort to get McFarland to provide an almost certainly false cover story for Trump is not chargeable as suborning a false statement.
Finally, the President’s effort to have McFarland write an internal email denying that the President had directed Flynn to discuss sanctions with Kislyak highlights the President’s concern about being associated with Flynn’s conduct. The evidence does not establish that the President was trying to have McFarland lie. The President’s request, however, was sufficiently irregular that McFarland-who did not know the full extent of Flynn’s communications with the President and thus could not make the representation the President wanted-felt the need to draft an internal memorandum documenting the President’s request, and Eisenberg was concerned that the request would look like a quid pro quo in exchange for an ambassadorship. (Vol 1, Pg. 48)
Isn’t it enough to know that Trump thought McFarland knew about what he might’ve told Flynn to show that Trump had a guilty mind? Why would ask someone to lie for you if you didn’t have something that needed covering up?
Again, this is maddening. Mobsters sitting in federal prisons wish they had Trump’s kind of luck and evidentiary standard.
It really feels to me that Mueller blew it on nailing Trump for a conspiracy to violate the Logan Act and an associated cover up/obstruction, suborning perjury of Flynn, and an overarching conspiracy with Russia to interfere in the 2016 election in exchange for favorable policy changes and sanctions relief. This would be tied to the overall conspiracy to violate federal election laws as the Trumpers received several things of value from the Russians in the election and expected to be repaid handsomely with closer relations and an alignment of policy to meet a Russian agenda, which included violating Federal law (Logan Act) to undermine the US govt’s policy of sanctions for election interference. Another word for this is treachery, violating the oath of office, and treason. That act also goes to the larger obstruction of the federal investigation into the Russian attack.
Having said all of that, Mueller did funnel all of these factual findings into an obstruction of justice analysis. That analysis is on pages 44-48 of Vol. II.
Mueller validates Comey’s analysis to show that Trump committed an obstructive act with his various overtures to pressure Comey to end the Flynn matter (Element 1). He also concluded that Trump was fully aware that Flynn was likely to be prosecuted and that his statements to the FBI were false (Element 2, nexus to a criminal proceeding), and on element 3 (intent), he relies heavily on Comey’s analysis of how Trump approached him to kill the Flynn investigation to demonstrate corrupt intent. And in a nod to the role of McFarland, while Mueller could not establish that Trump was directing McFarland to lie (b/c McFarland covered for him and I suspect Flynn is hiding that information too), Mueller described Trump’s request as “sufficiently irregular” and relies on McFarland’s reaction (writing a memo and asking a deputy WH Counsel, Eisenberg) that he leaves that one out there as another piece of evidence to signify corrupt intent.
So, when seen from the obstruction lens, Mueller’s analysis is straight forward and clear. But on other underlying federal crimes, Mueller refuses to advance an inch further than direct evidence will allow. So when people like McFarland, Bannon (and likely Flynn and others) lie or conceal evidence as to what Trump knew or didn’t know, he accepts it and doesn’t draw any inferences from the compiling of circumstantial evidence. [Where was Pence in all of this btw? He was key to the whole firing of Flynn! It doesn’t appear he was interviewed] This pattern is replete throughout the Report on issue after issue. All that said, Mueller has documented a clear case for obstruction of justice and Trump should feel lucky that’s all it is. This is manifest corruption, violations of the oath of office, and violations of multiple federal crimes.