What happened next is the subject of intense speculation by President Trump’s supporters. Citing no specific evidence, Trump has claimed Obama engaged in “treason.”
In recent days, Flynn’s lawyers released notes, apparently taken by former FBI deputy assistant director Peter Strzok, about the meeting. The notes are cryptic — and Strzok’s lawyer told The Fact Checker that Strzok did not attend the meeting. So that means the notes may recount what someone else — perhaps Comey — told him about the meeting.
But there have been other accounts of the meeting by people who were there, in particular by Yates and Rice. Here’s a guide through the various versions.
Who was at the meeting?
Initially, CIA Director John Brennan and Director of National Intelligence (DNI) James R. Clapper Jr., along with Yates and Comey, were part of the briefing, which was given to Obama, Biden and Rice. When it was over, Obama asked Comey and Yates to stay behind, along with Biden and Rice.
Brennan and Clapper were stepping down once Trump was inaugurated. Comey, as FBI director with a 10-year term, was expected to continue to serve under Trump, while Yates, a career prosecutor, would become acting attorney general until Trump’s nominee was confirmed. (Yates was fired within days of Trump becoming president for refusing to defend his executive order on immigration. Comey was fired in May 2017.)
What’s the context for the discussion?
The FBI had Flynn, a campaign adviser to Trump, under investigation as part of its Russia probe that began in July 2016. The agency was prepared to close that case against Flynn when FBI officials, via intercepted communications, learned of conversations that Flynn had on Dec. 29, 2016, with Russian Ambassador Sergey Kislyak.
The Obama administration had been puzzled about why Russia did not react strongly to sanctions that the United States had imposed in response to the Russian interference. Intelligence agencies were struggling to understand why Russia reversed course on its pledge to respond. (Russian Foreign Minister Sergey Lavrov originally had announced that 35 U.S. diplomats would be declared persona non grata, with his statement echoed by tweets from the Russian Embassy in Washington.) The communication intercepts showed that Flynn had asked the Russians not to retaliate, indicating that the incoming administration’s policy would take a different approach. That raised red flags, as usually an incoming president does not try to undermine foreign policy actions taken by the existing president.
In an FBI interview, Mary McCord, then a top official in the Justice Department’s National Security Division, said she learned on Jan. 3 about the FBI investigation into the calls. She said that then-FBI Deputy Director Andrew McCabe reported that a DNI official suggested the conversation could be a violation of the Logan Act. “McCord was not familiar with the Logan Act at the time and made a note to herself to look it up later,” the FBI interview notes said. (The Logan Act is an obscure law, signed by President John Adams in 1799, which seeks to prevent private citizens from intervening, without authorization, in disputes between the United States and foreign governments. It has never been successfully prosecuted.)
What was said at the meeting?
Rice and Yates both indicated that Obama was primarily concerned with whether limits should be placed on classified information that was shared with the incoming team, in particular Flynn, in light of the intercepts of the calls.
Obama said he had “learned of the information about Flynn” and his conversation with Kislyak about sanctions, according to FBI notes of an interview with Yates in September 2017, eight months later. Obama “specified that he did not want any additional information on the matter, but was seeking information on whether the White House should be treating Flynn any differently, given the information,” the notes said.
It isn’t clear who told Obama about the intercepts. Clapper and Comey have said they did not tell Obama. For Yates, it was the first she had heard the news. She “was so surprised by the information she was hearing that she was having a hard time processing it and listening to the conversation at the same time,” the FBI notes say.
“Yates recalled Comey mentioning the Logan Act, but can’t recall if he specified there was an ‘investigation,’ ” the notes add. “Comey did not talk about prosecution in the meeting.”
We should note here that there is a difference between a criminal investigation and a counterintelligence investigation. The Russia probe started as a counterintelligence investigation. Although presidents generally are expected not to inquire about criminal investigations, it is appropriate to have a discussion about a counterintelligence probe, as that involves national security.
[Update, Aug. 5: Yates, in testimony before the Senate, said under oath that neither Obama nor Biden attempted to influence the FBI’s investigation of Flynn during the meeting. “During the meeting, the president, the vice president, the national security adviser did not attempt to any way to direct or influence any investigation,” she said. She said Obama’s only interest in Flynn was to ensure that it was safe to share sensitive national security information with the incoming administration while the FBI investigated him.]
Rice, in an email she wrote to herself 15 days later — her last day on the job — wrote: “The president stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.”
“Director Comey affirmed that he is proceeding ‘by the book’ as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied ‘potentially.’ He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that ‘the level of communication is unusual.’ The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said that he would.”
The Strzok notes are the first documents that appear to bring Biden into the conversation. The notes are cryptic, with just short notations about what different people allegedly said. It’s not clear when the notes were written. The Justice Department told Flynn’s attorney “we believe that the notes were taken in early January 2017, possibly between January 3 and January 5” — which oddly suggests they were written before the Oval Office meeting on Jan. 5.
The first part of the notes makes little sense, but then the notes suggest these were comments made by VP (Biden), P (Obama) and D (FBI Director Comey):
VP: “Logan Act”P: These are unusual timesVP: I have been on the intel committee for ten years and I never.P: Make sure you look at things - have the right people on it.P: Is there anything I shouldn’t be telling transition team?D: Flynn —> Kilysak calls but appear legit
As we noted earlier, Strzok was not at the meeting, so this is could be an exercise in telephone tag. The notes conflict with the testimony by Yates that it was Comey who raised the Logan Act. (Recall also that even earlier, an official at DNI first raised the Logan Act.)
Nevertheless, in a court filing, Flynn’s attorneys alleged that Biden “personally raised” the Logan Act as “an admitted pretext to investigate General Flynn.”
A person briefed on the Jan. 5 Oval Office conversation told The Fact Checker that Biden did not say anything substantive during the Oval Office discussion. That is consistent with the accounts by Yates and Rice, neither of whom report that Biden said anything.
Aitan Goelman, Strzok’s attorney, rejected Flynn’s lawyers’ claim.
“Pete’s notes are being cynically taken out of context in order to weaponize them to try to help Trump’s reelection bid,” he said in a statement. “Let me be clear: Pete’s notes do not reflect any attempt to interfere in the investigation of General Flynn by President Obama, Vice President Biden, or anyone else in the Obama Administration. The FBI’s investigation of General Flynn was properly predicated on the Russian government’s interference in the 2016 presidential election and whether there was coordination between the Trump campaign and Russia’s efforts. It is interesting that, after attacking Pete’s credibility for years, the President’s allies are again trying to use his notes, this time to undermine Vice President Biden.”
The Biden campaign also said the notes are being misinterpreted by Trump’s allies.
“Neither Vice President Biden nor anyone else in the White House ever advocated for a criminal investigation of Michael Flynn for violating the Logan Act,” Biden campaign spokesman Andrew Bates told The Fact Checker. “These are third-hand notes and the very person who wrote them — who was not part of the White House meeting — says they ‘do not reflect any attempt to interfere in the investigation of General Flynn.’ These notes are also consistent with what has long been in the public record, and change nothing. Flynn’s interactions with a Russian diplomat and spy appropriately raised counterintelligence concerns that were shared across the two administrations.”
Flynn ultimately got in trouble when he lied to Vice President Pence and said he had not discussed Obama’s sanctions with the Russian ambassador — a lie repeated at the White House podium by press secretary Sean Spicer. With the transcripts of the call in hand, officials at the FBI and the Justice Department were worried that Flynn would be subject to blackmail by the Russians, who also knew he lied to the vice president.
After Flynn also lied to FBI agents who came to interview him about the conversation with Kislyak, Yates contacted the White House counsel to let him know there was a problem. According to the report by special counsel Robert S. Mueller III, a top lawyer in the White House conducted research into whether Flynn may have broken the law. He concluded that Flynn may have violated the Logan Act but would probably not be prosecuted for violating that obscure law.
But the White House review also concluded that Flynn could be prosecuted for making false statements to the FBI. After Flynn was fired by Trump, he pleaded guilty to lying to the FBI in 2017. He later sought to withdraw his guilty plea — and Trump’s Justice Department in May sought to drop the case.
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