Rice’s Email Proves FBI Had No Legitimate Reason To Question Flynn
Yesterday’s release of Susan Rice’s inauguration-day email to herself provided further evidence of former President Barack Obama’s participation in the FBI’s targeting of Michael Flynn. The recently declassified paragraph in Rice’s email, however, proves significant for another reason: It confirms the FBI had no valid investigative purpose for questioning Flynn on January 24, 2017.
In February 2018, Sens. Chuck Grassley and Lindsey Graham announced that as part of their efforts to conduct oversight of the FBI and DOJ they had discovered “a partially unclassified email sent by President Obama’s former National Security Advisor (NSA) Susan Rice to herself on January 20, 2017—President Trump’s inauguration day.”
At the time, the Republican senators noted that in her email Rice “purport[ed] to document a meeting that had taken place more than two weeks before, on January 5, 2017,” and then quoted the unclassified portions of the document:
On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.
President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities ‘by the book’. 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.
From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.
The next paragraph was redacted, but Rice then concluded by writing, “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.”
On Tuesday, the previously redacted paragraph was declassified, and buried behind the blackout were details of the Obama administration’s focus on Flynn:
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.’
This paragraph reveals several significant details. First, Comey distinguished between law enforcement and national security, and was not proceeding “by the book” related to the latter. Second, Obama knew of Comey’s intent and condoned the withholding of information from the incoming administration.
Now, thanks to the additional declassification, we know the purported concerns about Flynn were specific: Comey told President Obama he was concerned about the level of communication with Kislyak and raised the possibility that Flynn might pass classified information to Kislyak.
Of course, it would be entirely normal and appropriate for Flynn to speak with the Russian ambassador as part of the Trump transition team, and there is no reason to believe Flynn would share classified information with Kislyak. In fact, we know from the FBI’s closing memorandum on Flynn that a thorough investigation had revealed no derogatory information.
But Comey cautioned Obama otherwise. Why? And why did Rice belatedly document this conversation?
Possibility one: Comey, and in turn Rice and Obama, truly believed Flynn was compromised and might hand classified information to the Russians. But if that was the case, it was inexcusable for Comey not to brief President-elect Trump on that fear. And it was inexcusable for then-President Obama not to direct Comey to provide that briefing.
The second possibility is that no one suspected Flynn of being a Russian agent, but the FBI needed a pretext to continue to investigate Flynn so it could justify withholding details of the broader Crossfire Hurricane investigation from Flynn and thereby Trump. Either possibility is a huge political scandal that runs right through Comey to Obama.
However, there is a second significance to the details released yesterday, namely the declassified paragraph, when read together with other recently released documents, confirms that when FBI Agents Peter Strzok and Joe Pientka questioned Flynn on January 24, 2017, the FBI had no valid investigative purpose.
It was during that January 24, 2017 questioning of Flynn that the retired general purportedly lied to Strzok and Pientka about his conversations with Kislyak. In late 2017, Flynn pleaded guilty to making false statements to the FBI, but later sought to withdraw his guilty plea.
While that motion was pending, U.S. Attorney General William Barr ordered an independent review of the Flynn prosecution. That review, conducted by Missouri-based U.S. Attorney Jeff Jensen, revealed the lead prosecuting attorney—a hold-over from the special counsel’s office—Brandon Van Grack, had withheld exculpatory evidence from Flynn’s attorneys. That evidence included a January 4, 2017, FBI memorandum closing the investigation into Flynn and a series of text messages showing Strzok short-circuited the case closing by orders from above.
Also uncovered were handwritten notes discussing the FBI’s planned January 24, 2017 interview of Flynn, and scribbles questioning the motive: Was it to get the truth? Or was it to get Flynn to lie to get him prosecuted or fired?
That evidence, and Jensen’s independent investigation, led the DOJ to conclude that the January 24, 2017 interview “was not conducted with a legitimate investigative basis and therefore, even if Flynn made false statements, they were not material.” Based on this conclusion, the D.C. U.S. attorney filed a motion to dismiss the criminal charge against Flynn.
Rather than toss out the criminal charge, however, presiding Judge Emmet Sullivan appointed a biased former judge as an amicus curiae to argue against dismissal. Yesterday, Flynn’s attorney Sidney Powell filed an emergency petition (called a petition for a writ of mandamus) with the D.C. Circuit Court, asking the appellate court to direct Sullivan—or a newly assigned judge—to dismiss the charge.
Meanwhile, outside the courtroom, pundits have been debating the propriety of the motion to dismiss. Those condemning Barr’s decision to drop the charge against Flynn have argued that the FBI’s ongoing Russia collusion investigation provided FBI agents a proper predicate to question Flynn. While the FBI may have intended to close the investigation into Flynn on January 4, 2017, critics argue, the discovery of Flynn’s conversations with Kislyak raised new questions related to the Crossfire Hurricane investigation, justifying the questioning of Flynn.
Rice’s email spoils that talking point, because she lays out Comey’s supposed counterintelligence concern: that Flynn may be passing classified information to Russia. But between January 5, 2017, when Comey told Obama about his misgivings, and January 24, 2017, when the FBI questioned Flynn, the FBI must have ruled out that possibility.
How do we know? Because the handwritten notes discussing the purpose of the interview were silent on that possibility. Bill Priestap, the former FBI counterintelligence head, after asking if the FBI’s goal was “truth” or “to get him to lie, so we can prosecute him or get him fired,” spoke of “getting” Flynn “to admit [his] wrongdoing.” And the only wrongdoing suggested was the Logan Act—an antiquated and most assuredly unconstitutional law that no one even pretends would serve as the basis for a legitimate investigation.
So, contrary to the left’s current talking points, the discovery of Flynn’s conversations with Kislyak did not provide a basis to question Flynn on January 24, 2017, because the FBI had already ruled out any connection between those conversations and the Russia collusion investigation. And there was no other proper investigative purpose to questioning Flynn. That is why the government sought to dismiss the charge against Flynn.
Whether, and when, the government will be able to do so, remains unclear. But we should know more later today on the schedule the D.C. Circuit sets for resolving Flynn’s petition for a writ of mandamus.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame.
The views expressed here are those of Cleveland in her private capacity.