And now a key figure in the prosecution of Michael Flynn says Barr has done it again.
Former acting assistant attorney general for national security Mary McCord penned an op-ed for the New York Times on Sunday arguing that Barr’s Justice Department “twisted” her words in its controversial filing Thursday moving to withdraw its case against Flynn. The op-ed by McCord, who later served as an outside adviser to the House during the impeachment of Trump, marks the most significant public rebuke of the decision from an official who was involved in the investigative process.
The central premise of the Justice Department’s Flynn filing is that, even if Flynn knowingly lied to investigators about his calls with then-Russian Ambassador Sergey Kislyak, the lie wasn’t “material” to a legitimate investigation. And because the investigation wasn’t properly founded at the time of Flynn’s interview, the Justice Department now says, his lie isn’t a prosecutable offense.
To substantiate this claim, the Justice Department referred to a later internal interview with McCord — known as a “302” — in which she described internal deliberations about how to handle the Flynn case.
If there’s a fault in the op-ed, it’s that McCord doesn’t go through the alleged discrepancies point-by-point and use quotations. But a look at the Flynn filing compared with McCord’s op-ed and her 302 reveals a couple of key instances of what McCord regards as the filing having “twisted” her words.
Let’s break them down.
1. McCord’s op-ed says the Justice Department’s Flynn filing “myopically homes in on the calls alone, and because it views those calls as ‘entirely appropriate,’ it concludes the investigation should not have been extended and the interview should not have taken place.”
She adds: “The account of my interview in 2017 doesn’t help the department support this conclusion, and it is disingenuous for the department to twist my words to suggest that it does.”
The Justice Department’s filing does indeed suggest that the calls were the “sole basis” for continuing the investigation. McCord said it wasn’t so much the calls themselves but rather evidence that later emerged that Flynn was lying to White House officials about them. This is something that, in the estimations of McCord and others, could have opened up Flynn to blackmail by the Russians, who knew the true contents of the calls.
The Justice Department filing devotes considerably more time to whether the calls themselves were criminal than it does to the idea of potential blackmail — which it waves away rather briefly. It spends several paragraphs running through whether the calls might feasibly have violated things like the Foreign Agent Registration Act or the Logan Act, a rarely invoked law preventing private citizens from conducting diplomacy on behalf of the U.S. government.
“With its counterintelligence investigation no longer justifiably predicated, the communications between Mr. Flynn and Mr. Kislyak — the FBI’s sole basis for resurrecting the investigation on January 4, 2017 — did not warrant either continuing that existing counterintelligence investigation or opening a new criminal investigation,” the Justice Department now says. “The calls were entirely appropriate on their face.”
McCord’s argument is that the calls were hardly the “sole basis” but rather it was the later lies to White House officials, including Vice President Pence.
And her 302 backs that up.
“She described the [calls] as ‘concerning’ but with no particular urgency,” the 302 says, adding: “However, that changed with Vice President Michael Pence went on Face the Nation [on Jan. 15] and said things McCord knew to be untrue. Also, as time went on, and then-White House spokesperson Sean Spicer made comments about Flynn’s actions that she knew to be false, the urgency grew.”
The Justice Department filing, in explaining its reasoning, does mention the Pence and Spicer comments, but its conclusions don’t spend much time substantiating the idea that Flynn lying to them wasn’t problematic. It merely says, “Whether or not Mr. Flynn had been entirely candid with the future Vice President or Press Secretary did not create a predicate for believing he had committed a crime or was beholden to a foreign power.”
McCord suggests it’s totally misleading to dismiss that and instead focus so much on the potential criminality of the calls themselves — especially since this was a counterintelligence investigation.
2. McCord’s op-ed says, “The account of my July 2017 interview describes my department’s frustration with the F.B.I.’s conduct, sometimes using colorful adjectives like ‘flabbergasted’ to describe our reactions. We weren’t necessarily opposed to an interview — our focus had been on notification [of the White House] — but any such interview should have been coordinated with the Justice Department.”
She adds: “The Barr-Shea motion to dismiss refers to my descriptions of the F.B.I.’s justification for not wanting to notify the new administration about the potential Flynn compromise as 'vacillating from the potential compromise of a ‘counterintelligence’ investigation to the protection of a purported ‘criminal’ investigation. But that ‘vacillation’ has no bearing on whether the F.B.I. was justified in engaging in a voluntary interview with Mr. Flynn.”
Basically, McCord says the disagreements didn’t mean the matter wasn’t worth pursuing.
In describing its conclusions, the Justice Department’s memo summarizes the disagreements about how to proceed with Flynn by saying, “The frail and shifting justifications for its ongoing probe of Mr. Flynn, as well as the irregular procedure that preceded his interview, suggests that the FBI was eager to interview Mr. Flynn irrespective of any underlying investigation.”
In fact, though, McCord says the disagreements were merely about how to proceed — not whether to do so. She’s saying the investigation was justified, regardless of whether it was intended as a counterintelligence or criminal matter and regardless of how the FBI handled the timing or notifications involved.
Indeed, in her 302, McCord makes no mention of disagreements about whether Flynn should be interviewed at all. The Justice Department memo seems to regard the lack of a determined purpose and careful process as evidence of a lack of a legitimate purpose, but McCord clearly regarded the substance of what Flynn was being asked about as significant and worthy of probing.
And McCord’s 302 reinforces her belief in the utility of interviewing Flynn.
“The implications of that were that the Russians believed one of two things — either that the Vice President was in on it with Flynn, or that Flynn was clearly willing to lie to the Vice President,” McCord’s 302 states.
Whether the government should have asked Flynn about something it already knew about — the Kislyak call transcripts — and invited him to repeat his previous lies under oath is one thing, but McCord clearly saw utility in the interview beyond that.
And finally — and this is a key point — McCord states in her op-ed that whatever disagreements existed about how to proceed and whether the investigation should be criminal in nature, there was agreement within the Justice Department about the counterintelligence purpose of pursuing the Flynn matter.
“Although several of us at Justice thought the likelihood of a criminal prosecution under the Logan Act was quite low,” she said, “we certainly agreed that there was a counterintelligence threat.”