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Mueller Report: The President’s Conduct Concerning the Investigation of Michael Flynn – 1 of 4

by | Jun 4, 2019 | Blog, Mueller Report, News | 0 comments

Overview
During the presidential transition, incoming National Security Advisor Michael Flynn had two phone calls with the Russian Ambassador to the United States about the Russian response to U.S. sanctions imposed because of Russia’s election interference. After the press reported on Flynn’s contacts with the Russian Ambassador, Flynn lied to incoming Administration officials by saying he had not discussed sanctions on the calls. The officials publicly repeated those lies in press interviews. The FBI, which previously was investigating Flynn for other matters, interviewed him about the calls in the first week after the inauguration, and Flynn told similar lies to the FBI. On January 26, 2017, Department of Justice (DOJ) officials notified the White House that Flynn and the Russian Ambassador had discussed sanctions and that Flynn had been interviewed by the FBT. The next night, the President had a private dinner with FBI Director James Corney in which he asked for Corney’s loyalty. On February 13, 2017, the President asked Flynn to resign. The following day, the President had a one-on-one conversation with Corney in which he said, “I hope you can see your way clear to letting this go, to letting Flynn go.”
Evidence
1. Incoming National Security Advisor Flynn Discusses Sanctions on Russia with Russian Ambassador Sergey Kislyak
Shortly after the election, President-Elect Trump announced he would appoint Michael Flynn as his National Security Advisor.78 For the next two months, Flynn played an active role on the Presidential Transition Team (PTT) coordinating policy positions and communicating with foreign government officials, including Russian Ambassador to the United States Sergey Kislyak.79
On December 29, 2016, as noted in Volume II , Section TT.A.4, supra, the Obama Administration announced that it was imposing sanctions and other measures on several Russian individuals and entities.80 That day, multiple members of the PTT exchanged emails about the sanctions and the impact they would have on the incoming Administration, and Flynn informed members of the PTT that he would be speaking to the Russian Ambassador later in the day.81

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.82 McFarland had spoken with incoming Administration officials about the sanctions and Russia’ s possible responses and thought she had mentioned in those conversations that Flynn was scheduled to speak with Kislyak.83 Based on those conversations, McFarland informed Flynn that incoming Administration officials at Mar-a­Lago did not want Russia to escalate the situation.84 At 4:43 p.m. that afternoon, McFarland sent an email to several officials about the sanctions and informed the group that “Gen [F]lynn is talking to russian ambassador this evening.”85

Approximately one hour later, McFarland met with the President-Elect and senior officials 86 and briefed them on the sanctions and Russia’s possible responses. Incoming Chief of Staff Reince Priebus recalled that McFarland may have mentioned at the meeting that the sanctions situation could be “cooled down” and not escalated.87 McFarland recalled that at the end of the meeting, someone may have mentioned to the President-Elect that Flynn was speaking to the Russian Ambassador that evening.88 McFarland did not recall any response by the President­Elect.89 Priebus recalled that the President-Elect viewed the sanctions as an attempt by the Obama Administration to embarrass him by delegitimizing his election.90

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.91 After the call, Flynn briefed McFarland on its substance.92 Flynn told McFarland that the Russian response to the sanctions was not going to be escalatory because Russia wanted a good relationship with the Trump Administration.93 On December 30, 2016, Russian President Vladimir Putin announced that Russia would not take retaliatory measures U.S. Department of Justice Atteffley Werk Prec41:tet // May Cefltaifl Material Preteetee UHeer Fee. R. Crim. P. 6(e) in response to the sanctions at that time and would instead “plan … further steps to restore Russian­/US relations based on the policies of the Trump Administration.”94 Following that announcement, the President-Elect tweeted, “Great move on delay (by V. Putin) – I always knew he was very smart!”95

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.96 Later that day, Flynn told McFarland about this follow-up conversation with Kislyak and Russia’s decision not to escalate the sanctions situation based on Flynn’ s request.97 McFarland recalled that Flynn thought his phone call had made a difference.98 Flynn spoke with other incoming Administration officials that day, but does not recall whether they discussed the sanctions.99 Flynn recalled discussing the sanctions issue with incoming Administration official Stephen Bannon the next day.100 Flynn said that Bannon appeared to know about Flynn’s conversations with Kislyak, and he and Bannon agreed that they had “stopped the train on Russia’ s response” to the sanctions.101 On January 3, 2017, Flynn saw the President-Elect in person and thought they discussed the Russian reaction to the sanctions, but Flynn did not have a specific recollection of telling the President-Elect about the substance of his calls with Kislyak.102

Members of the intelligence community were surprised by Russia’s decision not to retaliate in response to the sanctions.103 When analyzing Russia’s response, they became aware of Flynn’s discussion of sanctions with Kislyak.104 Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian government. 105 Flynn’s contacts with Kislyak became a key component of that investigation.106

78 Flynn 11/16/17 302, at 7; President-Elect Donald.I Trump Selects US. Senator Jeff Sessions for Attorney General, Lt. Gen. Michael Flynn as Assistant to the President for National Security Affairs and US. Rep. Mike Pompeo as Director of the Central Intelligence Agency, President-Elect Donald J. Trump Press Release (Nov. 18, 2016); see also, e.g., Bryan Bender, Trump names Mike Flynn national security adviser, Politico, (Nov. 17, 2016).

79 Flynn 11 /16/17 302, at 8-14; Priebus I 0/13/17 302, at 3-5. 80 Statement by the President on Actions in Response to Russian Malicious Cyber Activity and Harassment, The White House, Office of the Press Secretary (Dec. 29, 2016). 8 1 12/29/16 Email, O’Brien to McFarland et al.; 12/29/16 Email, Bossert to Flynn et al.; 12/29/16 Email, McFarland to Flynn et al.; SF00000 I (12/29/16 Text Message, Flynn to Flaherty) (“Tit for tat w Russia not good. Russian AMBO reaching out to me today.”); Flynn 1/19/ 18 302, at 2.

80 Statement by the President on Actions in Response to Russian Malicious Cyber Activity and Harassment, The White House, Office of the Press Secretary (Dec. 29, 2016).

81 12/29/16 Email, O’Brien to McFarland et al.; 12/29/16 Email, Bossert to Flynn et al.; 12/29/16 Email, McFarland to Flynn et al.; SF00000 I (12/29/16 Text Message, Flynn to Flaherty) (“Tit for tat w Russia not good. Russian AMBO reaching out to me today.”); Flynn 1/19/ 18 302, at 2.

82 Statement of Offense at 2-3, United States v. Michael T. Flynn, 1: l 7-cr-232 (0.0.C. Dec. 1, 2017), Doc. 4 (Flynn Statement of Offense); Flynn 11/17/17 302, at 3-4; Flynn 11/20/ 17 302, at 3; McFarland 12/22/17 302, at 6-7.

83 McFarland 12/22/ 17 302, at 4-7 (recalling discussions about this issue with Bannon and Priebus).

84 Flynn Statement of Offense, at 3; Flynn 11/17/ 17 302, at 3-4; McFarland 12/22/17 302, at 6-7.

85 12/29/16 Email, McFarland to Flynn et al. 86 McFarland 12/22/17 302, at 7.

87 Priebus 1/18/18 302, at 3.

88 McFarland 12/22/17 302, at 7. Priebus thought it was possible that McFarland had mentioned Flynn’s scheduled call with Kislyak at this meeting, although he was not certain. Priebus 1/ 18/18 302, at 3 .

89 McFarland 12/22/17 302, at 7.

90 Priebus 1/18/18 302, at 3.

91 Flynn Statement of Offense, at 3; Flynn 11/17/17 302, at 3-4.

92 Flynn Statement of Offense, at 3; McFarland 12/22/17 302, at 7-8; Flynn 11/17/ 17 302, at 4.

93 McFarland 12/22/17 302, at 8.

94 Statement by the President of Russia, President of Russia (Dec. 30, 2016) 12/30/16.

95 @realDonaldTrump 12/30/ I 6 (2:41 p.m. ET) Tweet.

96 Flynn 1 /19/ 18 3 02, at 3; Flynn Statement of Offense, at 3.

97 Flynn 1/19/18 302, at 3; Flynn 11/17/17 302, at 6; McFarland 12/22/17 302, at 10; Flynn Statement of Offense, at 3.

98 McFarland 12/22/17 302, at 1 O; see Flynn 1 /19/ 18 302, at 4.

99 Flynn 11 /17117 302, at 5-6. 10° Flynn 1/19/18 302, at 4-5. Bannon recalled meeting with Flynn that day, but said he did not remember discussing sanctions with him.

100 Bannon 2/12/18 302, at 9.

101 Flynn 11/21/17 302, at I; Flynn 1/ 19/18 302, at 5.

102 Flynn 1/19/18 302, at 6; Flynn 11/17/17 302, at 6.

103 McCord 7/17/17 302, at 2.

104 McCord 7/17/17 302, at 2.

105 McCord 7/17/17 302, at 2-3; Corney 11/15/17 302, at 5.

106 McCord 7/ 17/17 302, at 2-3.

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