The Mueller Report
Volume II, Section B
The President’s Conduct Concerning the Investigation of Michael Flynn
Michael Flynn is now a convicted felon. He violated multiple laws and some consider his crimes to be extremely serious. This review of the report is not concerned with Flynn’s innocence or guilt, only with the behavior of Trump and his administration with regards to Flynn.
This section of the report is subdivided into nine sections.
1. Incoming National Security Advisor Flynn Discusses Sanctions on Russia with Russian Ambassador Sergey Kislyak
2. President-Elect Trump is Briefed on the Intelligence Community's Assessment of Russian Interference in the Election and Congress Opens Election-Interference Investigations
3. Flynn Makes False Statements About his Communications with Kislyak to Incoming Administration Officials, the Media, and the FBI
4. DOJ Officials Notify the White House of Their Concerns About Flynn
5. McGahn has a Follow-Up Meeting About Flynn with Yates; President Trump has Dinner with FBI Director Comey
6. Flynn's Resignation
7. The President Discusses Flynn with FBI Director Comey
8. The Media Raises Questions About the President's Delay in Terminating Flynn
9. The President Attempts to Have K.T. McFarland Create a Witness Statement Denying that he Directed Flynn's Discussions with Kislyak
The last sentence of the overview is:
February 13, 2017, the President asked Flynn to resign. The following day, the President had a one on-one conversation with Comey in which he said, "I hope you can see your way clear to letting this go, to letting Flynn go."
When the President, the chief executive, the one that can fire and replace the Director of the FBI, and in this who case was fully aware that Flynn violated the law, says this to the director of the FBI, the President is attempting to exert undue control over the FBI, and is clearly seeking to prevent prosecution of Flynn: that meets the definition of Obstruction of Justice.
On On January 6, 2017 Trump and Comey had a private discussion which, from the report:
According to a memorandum Comey drafted immediately after their private discussion, the President-Elect began the meeting by telling Comey he had conducted himself honorably over the prior year and had a great reputation. The President-Elect stated that he thought highly of Comey, looked forward to working with him, and hoped that he planned to stay on as FBI director.
Evidently, at this time, Trump thought well of Comey.
On December 29, 2016, the Obama administration announced sanctions on Russia. There were multiple emails about these sanctions and about what the new administration might do. From page 25:
Flynn, who was in the Dominican Republic at the time, and K.T. McFarland, who was slated to become the Deputy National Security Advisor and was at the Mar-a-Lago resort in Florida with the President-Elect and other senior staff, talked by phone about what, if anything, Flynn should communicate to Kislyak about the sanctions.
This makes it clear that the administration was not only aware of communication between Flynn and the Russians, but that they held discussions about what to say. From the report:
Immediately after discussing the sanctions with McFarland on December 29, 2016, Flynn called Kislyak and requested that Russia respond to the sanctions only in a reciprocal manner, without escalating the situation.
There were direct communications, and the administration was fully aware of them. Again from page 25:
On December 31, 2016, Kislyak called Flynn and told him that Flynn's request had been received at the highest levels and Russia had chosen not to retaliate in response to the request.
The negotiations between Flynn, representing the new administration, and Kislyak, representing the Russian government, were successful. Russia elected to not escalate the situation. From page 26:
Members of the intelligence community were surprised by Russia's decision not to retaliate in response to the sanctions. When analyzing Russia's response, they became aware of Flynn's discussion of sanctions with Kislyak.
On January 12, 2017
From the report:
On January 12, 2017, a Washington Post columnist reported that Flynn and Kislyak communicated on the day the Obama Administration announced the Russia sanctions.
The column mentioned possible violation of the Logan Act.[1]
Trump was angry about the report and discussed it with Priebus. The report does not state the exact communications path, but Flynn got the word to kill the story.
So here we have a violation of federal law by Flynn, with support of the administration. Not only is Flynn guilty of violation the Logan act, but so is everyone in the administration that was aware of it. There were multiple people aware and in on the situation. That meets the legal definition of conspiracy.[2]
From page 29:
Flynn directed McFarland to call the Washington Post columnist and inform him that no discussion of sanctions had occurred. McFarland recalled that Flynn said words to the effect of, "I want to kill the story."McFarland made the call as Flynn had requested although she knew she was providing false information, and the Washington Post updated the column to reflect that a "Trump official" had denied that Flynn and Kislyak discussed sanctions.
Administration officials knowingly and intentionally lied to the press to hide the violation of a federal statute. This behavior is: Obstruction of Justice.
From the end of the page:
In subsequent media interviews in mid-January, Pence, Priebus, and Spicer denied that Flynn and Kislyak had discussed sanctions, basing those denials on their conversations with Flynn.
The public statements of incoming Administration officials denying that Flynn and Kislyak had discussed sanctions alarmed senior DOJ officials, who were aware that the statements were not true.
Skipping a few lines we find:
The FBI investigative team also believed that Flynn's calls with Kislyak and subsequent denials about discussing sanctions raised potential Logan Act issues and were relevant to the FBI's broader Russia investigation.
From this, and having the advantage of the Mueller report in hand, the average reader can make a few valid conclusions. Flynn negotiated with Russia about the sanctions. That was a violation of the federal statute knows as the Logan act. Multiple people in the administration were aware of this, and it is reasonable to presume they were aware of the illegality. That elevates the situation to a conspiracy. They reached a joint decision, a conspiracy, to lie to the press about these conversations, obstruction of justice.
On page 30:
On January 24, 2017, Flynn agreed to be interviewed by agents from the FBI.139 During the interview, which took place at the White House, Flynn falsely stated that he did not ask Kislyak to refrain from escalating the situation in response to the sanctions on Russia imposed by the Obama Administration.
This elevates the behavior of Flynn and the administration of deliberately lying to the public, which, although widely accepted as known behavior, does not mitigate it, to lying to the FBI. Flynn’s actions were undertaken not only with full knowledge of the new administration, but at the administration’s request.
On January 26, 2017, Acting Attorney General Sally Yates[3] initiated sensitive discussions with the White House and was aware that Flynn had lied to the FBI. The last sentence of the paragraph is:
McGahn[4] came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn's FBI interview and his contacts with Kislyak.
From this perspective, I tentative conclude that McGahn thought they could get away with it all.
There were additional conversations with Acting AG Yates, and additional context that is too much to quote.
Page 33:
Also on January 27, the President called FBI Director Comey and invited him to dinner that evening.
… Comey said that when he arrived for the dinner that evening, he was surprised and concerned to see that no one else had been invited.
Further down:
Later in the dinner, the President brought up Flynn and said, "the guy has serious judgment issues."176 Comey did not comment on Flynn and the President did not acknowledge any FBI interest in or contact with Flynn.
According to Comey's account, at one point during the dinner the President stated, "I need loyalty, I expect loyalty." Comey responded, "You will always get honesty from me." President said, "That's what I want, honest loyalty."
This is a problem. The directory of the FBI is to have loyalty to the United States, not the specific person in the White House. From this and many other statements by Trump, he did not aspire to that office to serve the people, but to have the people and the federal agencies serve him. Later, the administration tried to pretend, despite evidence to the contrary, that Comey had requested the meeting.
Moving ahead to the end of section six:
Spicer told the press the next day that Flynn was forced to resign "not based on a legal issue, but based on a trust issue, [where] a level of trust between the President and General Flynn had eroded to the point where [the President] felt he had to make a change."
This was patently false as the report presents discussions about the Logan act and Flynn’s lying to the FBI and to the Vice-President.
In section 7, pages 38 and 39, On February 14, 2017, the day after Flynn's resignation:
At 4 p.m. that afternoon, the President met with Comey, Sessions, and other officials for a homeland security briefing. At the end of the briefing, the President dismissed the other attendees and stated that he wanted to speak to Comey alone. Sessions and senior advisor to the President Jared Kushner remained in the Oval Office as other participants left, but the President excused them, repeating that he wanted to speak only with Comey. At some point after others had left the Oval Office, Priebus opened the door, but the President sent him away.
…but the President returned to Flynn, saying "he is a good guy and has been through a lot."237 The President stated, "I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go."238 Comey agreed that Flynn "is a good guy," but did not commit to ending the investigation of Flynn.239 Comey testified under oath that he took the President's statement "as a direction" because of the President's position and the circumstances of the one-on-one meeting.
… Comey also asked for a meeting with Sessions and requested that Sessions not leave Comey alone with the President again.
While some may, and will, argue to the contrary, the request from Trump can be clearly construed as a request to drop the case against Flynn. That is obstruction of justice.
Moving into to section 8 and the media, and sorry, but there is so much here that an extensive quote is merited:
After Flynn was forced to resign, the press raised questions about why the President waited more than two weeks after the DOJ notification to remove Flynn and whether the President had known about Flynn's contacts with Kislyak before the DOJ notification. The press also continued to raise questions about connections between Russia and the President's campaign. On February 15, 2017, the President told reporters, "General Flynn is a wonderful man. I think he's been treated very, very unfairly by the media." On February 16, 2017, the President held a press conference and said that he removed Flynn because Flynn "didn't tell the Vice President of the United States the facts, and then he didn't remember. And that just wasn't acceptable to me." The President said he did not direct Flynn to discuss sanctions with Kislyak, but "it certainly would have been okay with me if he did. I would have directed him to do it if I thought he wasn't doing it. I didn't direct him, but I would have directed him because that's his job." In listing the reasons for terminating Flynn, the President did not say that Flynn had lied to him. The President also denied having any connection to Russia, stating, "I have nothing to do with Russia. I told you, I have no deals there. I have no anything." The President also said he "had nothing to do with" WikiLeaks's publication of information hacked from the Clinton campaign.
Well, no, Flynn had not been treated unfairly by the media. And no, Flynn is no longer a wonderful guy. I suggest that at in the recent past he had indeed been a “wonderful man.” Getting to the rank of Lieutenant General in the Army is restricted to very few people in this county and speaks quite well of Flynn. However, as Michael Cohen clearly indicated in Congressional Testimony, Trump has a way of sucking people in and getting them to engage in behavior that is downright unethical and illegal.
Trump denied that he directly instructed Flynn to discuss sanctions with Kislyak, the Russian ambassador. That might be technically true, but Mueller discovered that there were many in the administration that were not only aware of those discussion, but that those discussions were not only approved but requested.
Trump unwittingly exposes his hand by stating:
I didn't direct him, but I would have directed him because that's his job.
While that statement might not be sufficient to convict Trump in a court of law, it makes it pretty clean that Trump did approve of that behavior. And it matters not if Trump was or is aware of the Logan act, (ignorance of the law is no excuse) Flynn’s behavior was in violation of Federal Law and Trump approves.
On Feburary 23, 2017:
The President asked Priebus to have McFarland[5] draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions. She declined to do so and:
Priebus understood that McFarland was not comfortable with the President's request, and he recommended that she talk to attorneys in the White House Counsel's Office.
The appearance is that the administration attempted to coerce McFarland into do something she did not want to do. That is amplified by what follows:
McFarland then reached out to Eisenberg.258 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.259 Eisenberg advised McFarland not to write the requested letter.260 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."261 Later that evening, Priebus stopped by McFarland's office and told her not to write the email and to forget he even mentioned it.
This is just down right bad behavior. Regardless of the legality, this has no place in the White House. It was indeed quid pro quo. Possibly, even probably, to the point of extortion[6] and bribery.[7]
At this point, on page 44, the report begins the analysis of section B that continues to page 48. It is replete with footnotes that I am not able to follow up on at this time. My reading of the analysis is that Trump’s request to just let it go with regard to Flynn, by the President to the Director of the FBI, by the man that can fire Comey, is clear obstruction of justice. I also recognize that this can be interpreted as he said she said. But given that Trump has an undeniable record of pathological lying, I tend to go with Comey. (To be fair, I am not fond of Comey either.)
The analysis continue with:
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. The evidence also does not establish that Flynn otherwise possessed information damaging to the President that would give the President a personal incentive to end the FBI's inquiry into Flynn's conduct.
Note that the reports does not produce “evidence….” While the concrete evidence may not be present, when the general behavior of Trump is taken into consideration, the evidence is strong that Trump and his administration did behave unethically and illegally. There is evidence that Trump cleared the room before speaking with Comey. There is no evidence of Comey lying to the public or in testimony. This should be taken as strong propensity to believe Comey over Trump.
At the end of page 47:
And the President later denied that he cleared the room and asked Comey to "let[] Flynn go"-a denial that would have been unnecessary if he believed his request was a proper exercise of prosecutorial discretion.
That statement is stronger that is might first appear to be. The last paragraph in the analysis:
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.
My conclusion is that McFarland is well aware that Trump is not an ethical person and will not hesitate to step over the boundaries of the law.
This summary contains more quotes that I would prefer, but the circumstances are so profound, that the quotes are needed. Still, more is omitted that quoted. Indeed, the circumstances are so profound, that I take the position that our entire democracy is in serious peril. We do face the possibility of losing everything in the next few years.
The Mueller report can be found on line with a simple search. Please consider reading it for yourself.
[1] Logan Act https://www.britannica.com/event/Logan-Act
Logan Act, legislation enacted by the United States Congress (1799) that forbids private citizens from engaging in unauthorized correspondence with foreign governments.
[2] Conspiracy https://www.justia.com/criminal/offenses/inchoate-crimes/conspiracy/
A conspiracy occurs when two or more people agree to commit an illegal act and take some step toward its completion. Conspiracy is an inchoate crime because it does not require that the illegal act actually have been completed. For instance, a group of individuals can be convicted of conspiracy to commit burglary even if the actual burglary never happens. Conspiracy is also unique in that, unlike attempt, a defendant can be charged with both conspiracy to commit a crime, and the crime itself if the crime is completed.
[3] Sally Yates
Sally Caroline Yates (née Quillian; August 20, 1960) is an American lawyer. She served as a United States Attorney and later United States Deputy Attorney General, having been appointed to both positions by President Barack Obama.
Following the inauguration of Donald Trump and the departure of Attorney General Loretta Lynch on January 20, 2017, Yates served as Acting Attorney General for 10 days. She was dismissed for insubordination by President Trump on January 30, after she instructed the Justice Department not to make legal arguments defending Executive Order 13769, which temporarily banned the admission of refugees and barred travel from certain Muslim-majority countries. Rather than defend it, Yates stated the order was neither defensible in court nor consistent with the Constitution
[4] From wiki: Donald Francis McGahn II (/dɒn məˈɡæn/; born June 16, 1968) is an American lawyer who served as White House Counsel for U.S. President Donald Trump, from the day of Trump's inauguration through October 17, 2018, when McGahn resigned.
The article also states:
On May 21, 2019, McGahn defied a subpoena to testify before the House Judiciary Committee, at the direction of his former client.[50] On August 7, the House filed a lawsuit with the United States District Court for the District of Columbia in an effort to challenge this precedent-setting move.[51]
[5] From Wiki Kathleen Troia "K. T." McFarland is a former U.S. government official, and political commentator. She served as Deputy National Security Advisor under Michael Flynn for the first four months of the Trump administration.
[6] Extortion https://www.google.com/search?rlz=1C1VFKB_enUS837US837&ei=MPdhXYycLYL8-gTh8rCAAQ&q=extortion&oq=extortion&gs_l=psy-ab.3..0i67j0l7j0i67j0.1252692.1254587..1255366...0.1..0.158.1156.0j9......0....1..gws-wiz.......0i71j0i131.W7HkBK88324&ved=0ahUKEwiM9M2wgZ3kAhUCvp4KHWE5DBAQ4dUDCAo&uact=5
the practice of obtaining something, especially money, through force or threats.
[7] Bribery https://www.google.com/search?rlz=1C1VFKB_enUS837US837&ei=E_xhXebaB4r_-gSgup24Cg&q=legal+definition+of+bribery&oq=legal+definition+of+bribe&gs_l=psy-ab.1.0.0l3j0i22i30l7.139102.143739..147216...0.1..0.188.3580.0j25......0....1..gws-wiz.......0i71j0i131j0i67j0i10j0i22i10i30.w0TptgQFybU (contd next page)
Bribery refers to the offering, giving, soliciting, or receiving of any item of value as a means of influencing the actions of an individual holding a public or legal duty. ... Solicitation of a bribe also constitutes a crime and is completed regardless of whether the solicitation results in the receipt of a valuable gift.