5. McGahn has a Follow-Up Meeting About Flynn with Yates; President Trump has Dinner with FBI Director Comey
The next day, January 27, 2017, McGahn and Eisenberg discussed the results of Eisenberg’s initial legal research into Flynn’s conduct, and specifically whether Flynn may have violated the Espionage Act, the Logan Act, or 18 U .S.C. § 1001.160 Based on his preliminary research, Eisenberg informed McGahn that there was a possibility that Flynn had violated 18 U.S.C. § 1001 and the Logan Act. 161 Eisenberg noted that the United States had never successfully prosecuted an individual under the Logan Act and that Flynn could have possible defenses, and told McGahn that he believed it was unlikely that a prosecutor would pursue a Logan Act charge under the circumstances.162
That same morning, McGahn asked Yates to return to the White House to discuss Flynn again.I63 In that second meeting, McGahn expressed doubts that the Department of Justice would bring a Logan Act prosecution against Flynn, but stated that the White House did not want to take action that would interfere with an ongoing FBI investigation of Flynn.164 Yates responded that Department ofJustice had notified the White House so that it could take action in response to the infonnation provided.165 McGahn ended the meeting by asking Yates for access to the underlying information the Department of Justice possessed pertaining to Flynn’s discussions with Kislyak.166
Also on January 27, the President called FBI Director Comey and invited him to dinner that evening.167 Priebus recalled that before the dinner, he told the President something like, “don’t talk about Russia, whatever you do,” and the President promised he would not talk about Russia at the dinner.168 McGahn had previously advised the President that he should not communicate directly with the Department of Justice to avoid the perception or reality of political interference in law enforcement.169 When Bannon learned about the President’s planned dinner with Comey, he suggested that he or Priebus also attend, but the President stated that he wanted to dine with Comey alone.170 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.171
Comey provided an account of the dinner in a contemporaneous memo, an interview with this Office, and congressional testimony. According to Comey’s account of the dinner, the President repeatedly brought up Comey’s future, asking whether he wanted to stay on as FBI director.172 Because the President had previously said he wanted Comey to stay on as FBI director, Comey interpreted the President’s comments as an effort to create a patronage relationship by having Comey ask for his job.173 The President also brought up the Steele reporting that Comey had raised in the January 6, 2017 briefing and stated that he was thinking about ordering the FBI to investigate the allegations to prove they were false. 174 Comey responded that the President should think carefully about issuing such an order because it could create a narrative that the FBI was investigating him personally, which was incorrect.175 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. 177
According to Comey’s account, at one point during the dinner the President stated, “I need loyalty, I expect loyalty.” 178 Comey did not respond and the conversation moved on to other topics, but the President returned to the subject of Comey’ s job at the end of the dinner and repeated, “I need loyalty.”179 Comey responded, “You will always get honesty from me.”180 The President said, “That’s what I want, honest loyalty.” 181 Comey said, “You will get that from me.” 182
After Comey’s account of the dinner became public, the President and his advisors disputed that he had asked for Comey’s loyalty.183 The President also indicated that he had not invited Comey to dinner, telling a reporter that he thought Comey had “asked for the dinner” because “he wanted to stay on.”I84 But substantial evidence corroborates Comey’s account of the dinner invitation and the request for loyalty. The President’s Daily Diary confirms that the President “extend[ed] a dinner invitation” to Comey on January 27. 185 With respect to the substance of the dinner conversation, Comey documented the President’s request for loyalty in a memorandum he began drafting the night of the dinner; 186 senior FBI officials recall that Comey told them about the loyalty request shortly after the dinner occurred;187 and Comey described the request while under oath in congressional proceedings and in a subsequent interview with investigators subject to penalties for lying under 18 U.S.C. § I 00 I. Comey’s memory of the details of the dinner, including that the President requested loyalty, has remained consistent throughout. 188
6. Flynn’s Resignation
On February 2, 2017, Eisenberg reviewed the underlying information relating to Flynn’s calls with Kislyak.189 Eisenberg recalled that he prepared a memorandum about criminal statutes that could apply to Flynn’ s conduct, but he did not believe the White House had enough information to make a definitive recommendation to the President.190 Eisenberg and McGahn discussed that Eisenberg’s review of the underlying information confirmed his preliminary conclusion that Flynn was unlikely to be prosecuted for violating the Logan Act.I9I Because White House officials were uncertain what Flynn had told the FBI, however, they could not assess his exposure to prosecution for violating 18 U .S.C. § 1001.192
The week of February 6, Flynn had a one-on-one conversation with the President in the Oval Office about the negative media coverage of his contacts with Kislyak.I93 Flynn recalled that the President was upset and asked him for information on the conversations.194 Flynn listed the specific dates on which he remembered speaking with Kislyak, but the President corrected one of the dates he listed.I95 The President asked Flynn what he and Kislyak discussed and Flynn responded that he might have talked about sanctions.196
On February 9, 2017, the Washington Post reported that Flynn discussed sanctions with Kislyak the month before the President took office.197 After the publication of that story, Vice President Pence learned of the Department of Justice’s notification to the White House about the content of Flynn’s calls.198 He and other advisors then sought access to and reviewed the underlying information about Flynn’s contacts with Kislyak.199 FBI Deputy Director Andrew McCabe, who provided the White House officials access to the information and was present when they reviewed it, recalled the officials asking him whether Flynn’s conduct violated the Logan Act.200 McCabe responded that he did not know, but the FBI was investigating the matter because it was a possibility.201 Based on the evidence of Flynn’s contacts with Kislyak, McGahn and Priebus concluded that Flynn could not have forgotten the details of the discussions of sanctions and had instead been lying about what he discussed with Kislyak.202 Flynn had also told White House officials that the FB[ had told him that the FBI was closing out its investigation of him,203 but Eisenberg did not believe him. 204 After reviewing the materials and speaking with Flynn, McGahn and Priebus concluded that Flynn should be terminated and recommended that course of action to the President.205
That weekend, Flynn accompanied the President to Mar-a-Lago.206 Flynn recalled that on February 12, 2017, on the return flight to D.C. on Air Force One, the President asked him whether he had lied to the Vice President.207 Flynn responded that he may have forgotten details of his calls, but he did not think he lied.208 The President responded, “Okay. That’s fine. I got it.”209
On February 13, 2017, Priebus told Flynn he had to resign. 210 Flynn said he wanted to say goodbye to the President, so Priebus brought him to the Oval Office.211 Priebus recalled that the President hugged Flynn, shook his hand, and said, “We’ll give you a good recommendation. You’re a good guy·. We’ll take care of you.”212
Talking points on the resignation prepared by the White House Counsel’s Office and distributed to the White House communications team stated that McGahn had advised the President that Flynn was unlikely to be prosecuted, and the President had determined that the issue with Flynn was one of trust.213 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.”214
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160 SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); McGahn 11/30/17 302, at 8.
161 SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); Eisenberg 11/29/17 302, at 9.
162 SCR0l5_ 000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); Eisenberg 11 /29/17 302, at 9.
163 SCR015_000199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); McGahn 11/30/ 17 302, at 8; Yates 8/15/ 17 302, at 8.
164 Yates 8/15/17 302, at 9 ; McGahn 11/30/17 302, at 8.
165 Yates 8/15/17 302, at 9; Burnham 11/3/17 302, at 5; see SCR015_ 00199 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President) (“Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the Department of Justice would not object to the White House taking action against Flynn.”).
166 Yates 9/15~17 302, at 9; Burnham 11/3/17 302, at 5. In accordance with McGahn’s request, the Department of Justice made the underlying information available and Eisenberg viewed the information in early February. Eisenberg 11/29/17 302, at 5; FBI 2/7/17 Electronic Communication, at I (documenting 2/2/17 meeting with Eisenberg).
167 Comey 11/ 15/17 302, at 6; SCR0l2b_000O0I (President’s Daily Diary, 1/27/17); Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 2-3).
168 Priebus I 0 / 13/17 302, at 17.
169 See McGahn I 1 /30/17 302, at 9; Dhillon 11 /2 1 / 17 302, at 2; Bannon 2/ 12/ 18 302, at 17.
170 Bannon 2/ 12/1 8 302, at 17.
171 Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 3); see Comey 11/15/17 302, at 6.
172 Comey I 1/15/17 302, at 7; Comey 1/28/17 Memorandum, at I, 3; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBT, at 3).
173 Comey 11/15/17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 3).
174 Comey 1 /28/ 17 Memorandum, at 3; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 4).
175 Comey 1/28/17 Memorandum, at 3; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 4).
176 Comey 1/28/17 Memorandum, at 4; Comey 11/15/17 302, at 7 .
177 Comey 1/28/17 Memorandum, at 4; Comey I 1 / 15/17 302, at 7.
178 Comey 1/28/18 Memorandum, at 2; Comey 11/15/17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 3).
179 Comey 1/28/ 17 Memorandum, at 3; Comey 11/15/ 17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 3-4).
180 Comey 1/28/17 Memorandum, at 3; Comey 11/ 15/ 17 302, at 7 ; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 20 I 7) (Statement for the Record of James B. Comey, former Director of the FBI, at 4).
181 Comey 1/28/17 Memorandum, at 3; Comey 11/ 15/17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B . Comey, former Director of the FBI, at 4).
182 Comey 1/28/17 Memorandum, at 3; Comey 11/15/ 17 302, at 7; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 4).
183 See, e.g., Michael S. Schmidt, In a Private Dinner, Trump Demanded Loyalty. Comey Demurred., New York Times (May 11 , 2017) (quoting Sarah Sanders as saying, “[The President] would never even suggest the expectation of personal loyalty”); Ali Vitali, Trump Never Asked for Comey’s Loyalty, President’s Personal Lawyer Says, NBC (June 8, 2017) ( quoting the President’s personal counsel as saying, “The president also never told Mr. Comey, ‘ I need loyalty, T expect loyalty,’ in form or substance.”); Remarks by President Trump in Press Conference, White House (June 9, 2017) (“I hardly know the man. I’ m not going to say ‘ I want you to pledge allegiance.’ Who would do that? Who would ask a man to pledge allegiance under oath?”). In a private conversation with Spicer, the President stated that he had never asked for Comey’s loyalty, but added that if he had asked for loyalty, “Who cares?” Spicer 10/16/17 302, at 4. The President also told McGahn that he never said what Comey said he had. McGahn 12/12/17 302, at 17.
184 Interview of Donald J Trump, NBC (May 11 , 2017).
185 SCR012b_OOOOOI (President’s Daily Diary, 1/27/17) (reflecting that the President called Comey in the morning on January 27 and “[t]he purpose of the call was to extend a dinner invitation”). In addition, two witnesses corroborate Comey’s account that the President reached out to schedule the dinner, without Comey having asked for it. Priebus l 0/13/17 302, at 17 (the President asked to schedule the January 27 dinner because he did not know much about Comey and intended to ask him whether he wanted to stay on as FBI Director); Rybicki I 1/21/18 302, at 3 (recalling that Comey told him about the President’ s dinner invitation on the day of the dinner).
186 Comey l l /15/17 302, at 8; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 4).
187 McCabe 8/17/17 302, at 9-10; Rybicki 11/21/18 302, at 3. After leaving the White House, Comey called Deputy Director of the FBI Andrew McCabe, summarized what he and the President had discussed, including the President’s request for loyalty, and expressed shock over the President’s request. McCabe 8/17/17 302, at 9. Comey also convened a meeting with his senior leadership team to discuss what the President had asked of him during the dinner and whether he had handled the request for loyalty properly. McCabe 8/17/17 302, at IO; Rybicki 11 /2 1/18 302, at 3. In addition, Comey distributed his memorandum documenting the dinner to his senior leadership team, and McCabe confirmed that the memorandum captured what Comey said on the telephone call immediately following the dinner. McCabe 8/17/17 302, at 9-10.
188 There also is evidence that corroborates other aspects of the memoranda Comey wrote documenting his interactions with the President. For example, Comey recalled, and his memoranda reflect, that he told the President in his January 6, 2017 meeting, and on phone calls on March 30 and April 11, 2017, that the FBI was not investigating the President personally. On May 8, 2017, during White House discussions about firing Comey, the President told Rosenstein and others that Comey had told him three times that he was not under investigation, including once in person and twice on the phone. Gauhar-000058 (Gauhar 5/ 16/17 Notes).
189 Eisenberg 11/29/17 302, at 5; FBI 2/7/17 Electronic Communication, at 1 (documenting 2/2/17 meeting with Eisenberg).
190 Eisenberg 11/29/17 302, at 6.
191 Eisenberg 1 l /29/17 302, at 9; SCRO 15 _ 000200 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President).
192 Eisenberg 11 /29/17 302, at 9.
193 Flynn 11/21/17 302, at 2.
194 Flynn 11/21/17 302, at 2.
195 Flynn 11/21117 302, at 2.
196 Flynn 11/21/17 302, at 2-3.
197 Greg Miller et al., National security adviser Flynn discussed sanctions with Russian ambassador, despite denials, officials say, Washington Post (Feb. 9, 2017).
198 SCR015_000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); McGahn l l /30/17 302, at 12.
199 SCR0\5_000202 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); McCabe 8/17/17 302, at 11-13; Priebus 10/ 13/17 302, at 10; McGahn 11/30/17 302, at 12.
200 McCabe 8/17 /l 7 302, at 13.
201 McCabe 8/17/17 302, at 13.
202 McGahn 11/30/17 302, at 12; Priebus 1/ 18/18 302, at 8; Priebus 10/13/17 302, at 10; SCR015_000202 (2/15/17 Draft Memorandum to file from the Office ofthe Counsel to the President).
203 McGahn 11/30/17 302, at 11; Eisenberg 11/29/17 302, at 9; Priebus 10/13/17 302, at 11.
204 Eisenberg l l /29/17 302, at 9.
205 SCRO 15 _ 000202 (2/ 15/17 Draft Memorandum to file from the Office of the Counsel to the President); Priebus 10/13/17 302, at 10; McGahn 11/30/17 302, at 12.
206 Flynn 11/17/17 302, at 8.
207 Flynn 1/19/18 302, at 9 ; Flynn 11/17/17 302, at 8.
208 Flynn 11/17/17 302, at 8; Flynn 1/19/ l 8 302, at 9.
209 Flynn 1/19/18 302, at 9.
210 Priebus 1/18/18 302, at 9.
211 Priebus 1/18/18 302, at 9; Flynn 11/17/17 302, at 10.
212 Priebus 1 /18/18 302, at 9; Flynn 11117/17 302, at 10.
213 SCR004_00600 (2/16/17 Email, Burnham to Donaldson).
214 Sean Spicer, White House Daily Briefing, C-SPAN (Feb. 14, 2017). After Flynn pleaded guilty to violating 18 U .S.C. § I 00 I in December 2017, the President tweeted, “I had to fire General Flynn because he lied to the Vice President and the FBI.” @realDonaldTrump 12/2/17 (12: 14 p.m. ET) Tweet. The next day, the President’s personal counsel told the press that he had drafted the tweet. Maegan Vazquez et al., Trump’s lawyer says he was behind President’s tweet about firing Flynn, CNN (Dec. 3, 2017).