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Special Counsel Robert Mueller’s office deceived the country and a federal court about former National Security Adviser Michael Flynn’s late-December 2016 conversations with Russian Ambassador Sergey Kislyak. Now, more than three years later, Americans are only first learning about that deception thanks to the release of recently declassified transcripts of the calls.
Newly confirmed Director of National Intelligence John Ratcliffe on Friday shared with congressional oversight committees the summaries and transcripts of intercepted communications between Flynn and Kislyak. The move followed former acting Director of National Intelligence Ric Grenell’s decision to declassify nearly all portions of the Flynn-Kislyak telephone conversations from late 2016 and early 2017.
The transcripts prove a treasure trove of evidence of the Deep State’s plot to frame Flynn, who pleaded guilty Dec. 1, 2017, to making false statements to FBI agents Peter Strzok and Joe Pientka during a Jan. 24, 2017 interview of Flynn. In a “Statement of Offense” filed that same day with the D.C. District Court, federal prosecutor and Mueller team member Brandon Van Grack “stipulate[d] and agree[d]” that the facts detailed in the Statement of Offense were “true and accurate.”
Van Grack then attested in the Statement of Offense that Flynn knew that “on or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s action intended to interfere with the 2016 presidential election (‘U.S. Sanctions’).”
Russian Expulsions Were Not Sanctions
The Statement of Offense professed that on Dec. 29, 2016, “FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.”
According to the Statement of Offense, during questioning by the FBI agents, “FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (‘Russian Ambassador’) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia,” and “also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FLYNN’S request.”
In that executive order, as summarized in a White House press release, Obama “sanctioned nine entities and individuals: the GRU and the FSB, two Russian intelligence services; four individual officers of the GRU; and three companies that provided material support to the GRU’s cyber operations.” The press release also detailed a number of additional Obama administration actions, beyond the sanctions, “in response to the Russian government’s aggressive harassment of U.S. officials and cyber operations aimed at the U.S. election.”
Of relevance to the Flynn case was the State Department “shutting down two Russian compounds, in Maryland and New York, used by Russian personnel for intelligence-related purposes,” and declaring “‘persona non grata’ 35 Russian intelligence operatives.”
While the Obama administration ejected the Russian personnel in response to the Kremlin’s interference with the 2016 election, the expulsions were not part of Executive Order 13757 and thus were not “U.S. Sanctions” as defined in the Flynn Statement of Offense. This distinction matters because the recently released transcripts establish that Flynn did not ask Kislyak to do anything — or refrain from doing anything — in response to the sanctions.
What Was Flynn’s Call Really About?
Instead, what Flynn discussed with Kislyak on Dec. 29, 2016, concerned the expulsion of the Russian diplomats.
“So, you know, depending on, depending on what actions they take over this current issue of cyber stuff, you know, where they’re looking like they’re gonna, they’re gonna dismiss some number of Russians out of the country, I understand all that and I understand that, that you know, the information that they have and all that, but what I would ask Russia to do is not — is is — if anything — because I know you have to have some sort of action — to, to only make it reciprocal. Make it reciprocal. Don’t — don’t make it — don’t go any further than you have to. Because I don’t want us to get into something that has to escalate, on a, you know, on a tit for tat. You follow me, Ambassador?”
Kislyak responded that he did but that Flynn needed to “appreciate” that sentiments were raging in Moscow. Flynn noted he appreciated the situation but didn’t want to get into a scenario “where we do this and then you do something bigger, and then you know, everybody’s got to go back and forth and everybody’s got to be the tough guy here.” Flynn stressed, “[W]e need cool heads to prevail … to fight the common threat in the Middle East.”
At that point, Kislyak mentioned “sanctions” for the first time, noting that “one of the problems among the measures that have been announced today is that now FSB and GRU are sanctioned,” and Kislyak said it makes him ask himself if the United States remains willing to work on terrorist threats.
Significantly, Flynn did not respond to Kislyak’s mention of sanctions with a similar plea to moderate any response. Rather, he merely acknowledged Kislyak’s comments with a “yeah, yeah,” and then Kislyak noted “that was something we have to deal with, but I’ve heard what you say, and I certainly will try to get the people in Moscow to understand it.”
Here, Flynn reiterated his request, making clear he was discussing only the expulsion: “If you have to do something, do something on a reciprocal basis … because if we send out 30 guys and you send out 60, you know, or you shut down every Embassy, I mean we have to get this to a — let’s, let’s keep this at a level that is, is even-keeled, okay? Is even-keeled.”
It is impossible to square Flynn’s actual conversation with Kislyak with the facts the special counsel’s office presented to the D.C. District Court in its Statement of Offense. In short, it is blatantly false to say, as Mueller’s team did, that “FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.”
Flynn Didn’t Request Russia Moderate a Sanctions Response
The Statement of Offense likewise wrongly maintained that Flynn had “falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FLYNN’S request.” First, as noted above, Flynn had not requested Russia “moderate its response to those sanctions.”
Second, the declassified transcript of the Dec. 31, 2016 call confirms the Russian ambassador also did not mention sanctions in the follow-up conversation.
Rather, in that call, Kislyak told Flynn he had “a small message to pass to you from Moscow,” about “the decision taken by Moscow about action and counter-action.” Kislyak noted that Moscow had taken into account Flynn’s prior conversation with the Russian ambassador and his entreaty to let “cold heads” prevail.
Kislyak added that Moscow found the “actions have targeted not only against Russia, but also against the president elect,” and that while they were within their right to respond, Russia “decided not to act now because, it’s because people are dissatisfied with the lost of elections, and it’s very deplorable.”
“So, so I just wanted to let you know that our conversation was taken with weight,” Kislyak concluded.
Not only did Kislyak not mention sanctions in his Dec. 31, 2016, conversation with Flynn, he stressed that Flynn’s request — which, again, concerned the expulsions, not the sanctions — “was taken with weight.” From Putin’s public response, it appears it was.
“We regard the recent unfriendly steps taken by the outgoing US administration as provocative and aimed at further weakening the Russia-US relationship,” Putin said in a Dec. 30, 2016 statement, adding:
The diplomats who are returning to Russia will spend the New Year’s holidays with their families and friends. We will not create any problems for US diplomats. We will not expel anyone. We will not prevent their families and children from using their traditional leisure sites during the New Year’s holidays. Moreover, I invite all children of US diplomats accredited in Russia to the New Year and Christmas children’s parties in the Kremlin.
The transcripts released Friday make clear that Flynn’s only request to Kislyak concerned the expulsion of the Russian diplomats and not the sanctions instituted by then-President Obama’s executive order. Yet Mueller’s team charged Flynn with lying to the FBI about his discussion with Kislyak about sanctions.
Mueller’s Team Lied to the Court and the American People
While Flynn pleaded guilty to that charge, he did so having not seen the transcript of his actual conversation with Kislyak. In seeking to withdraw his guilty plea, Flynn said he still doesn’t “remember if I discussed sanctions on a phone call with Ambassador Kislyak.” As Flynn’s attorney Sidney Powell told me, his defense team “has been asking for the transcripts and recordings of his conversations with Ambassador Kislyak for almost a year.”
Yet Van Grack, the federal prosecutor who has since been removed from the Flynn case, refused to provide Powell with the transcript. Powell only received access to the details of the call following the recent declassification and release.
Further, Powell should not have even needed to ask for the transcript because presiding Judge Emmet Sullivan entered a standing order requiring the special counsel’s office to provide Flynn’s attorneys with all material exculpatory information. Yet Van Grack withheld the transcripts.
Later, when Sullivan directly ordered the government to file “the transcripts of any other audio recordings of Mr. Flynn, including, but not limited to audio recordings of Mr. Flynn’s conversations with Russian officials,” Van Grack refused, telling the court instead that it is not relying on that recording “for purposes of establishing the defendant’s guilt or determining his sentence.”
At least in that regard, Van Grack was being honest with the court: He was not relying on the transcript to establish Flynn’s guilt — because it didn’t! The transcript instead established Flynn’s factual innocence.
Not only did the special counsel’s office and then Van Grack, a holdover from the Mueller team, misrepresent to the federal court the substance of Flynn’s conversation with Kislyak, the special counsel repeated these lies to the American public.
For instance, the Mueller report falsely stated, “Flynn discussed multiple topics with Kislyak, including sanctions. … With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a ‘tit for tat,’ and only respond to the sanctions in a reciprocal manner.”
The Mueller report also inaccurately reported that “on December 31, 2016, Kislyak called Flynn and told him the request had been received at the highest levels and that Russia had chosen not to retaliate to the sanctions in response to the request.”
Elsewhere, the special report repeated this lie, noting that immediately after discussing the sanctions with K.T. McFarland, “who was slated to become the Deputy National Security Advisor,” “Flynn called Kislyak and requested that Russia respond to the sanctions only in a reciprocal manner, without escalating the situation.”
Later, in detailing Flynn’s purported false statements to the FBI agents, Mueller’s team told the American public, who had no access to the transcripts, that “Flynn falsely stated he did not ask Kislyak to refrain from escalating the situation in response to the sanctions on Russia imposed by the Obama Administration. Flynn also falsely stated that he did not remember a follow-up conversation in which Kislyak stated that Russia had chosen to moderate its response to those sanctions as a result of Flynn’s request.”
With the transcript exposing that the special counsel’s office lied to both the American people and the federal court overseeing the Flynn prosecution, watch for state apologists to falsely claim the expulsions were part of the sanctions. This misdirection, however, fails for several reasons.
Mueller’s Team Knew the Sanctions Distinction Mattered
First, as detailed above, Mueller’s team explicitly defined “U.S. Sanctions” in the Statement of Offense as the sanctions announced in Executive Order 13757, and the expulsions were not part of that executive order. Second, in its press release, the Obama administration distinguished between sanctions and other “actions” it was taking in response to Russia’s interference with the 2016 election, and the latter included the expulsions.
The special counsel’s report also distinguished between sanctions and other retaliatory measures, stating that Executive Order 13757 “imposed sanctions on nine Russian individuals and entities,” but then noting that “the Obama Administration also expelled 35 Russian government officials and closed two Russian government-owned compounds in the United States.”
Elsewhere, Mueller’s team distinguished between sanctions and other retaliatory measures by, for instance, stating that “on December 29, 2016, the Obama Administration announced that in response to Russian cyber operations aimed at the U.S. election, it was imposing sanctions and other measures on several Russian individuals and entities.”
Then the special counsel’s office repeated this point: “On December 29, 2016, as noted in Volume II, Section II.A.4, supra, the Obama Administration announced that it was imposing sanctions and other measures on several Russian individuals and entities. A third time Mueller repeated this distinction, stating Flynn “spoke with the Russian government when the Obama Administration imposed sanctions and other measures against Russia in response to Russia’s interference in the 2016 presidential election.”
Mueller’s team surely knew that the distinction between sanctions and expulsions mattered when it came to Flynn and his conversation with the FBI agents because shortly after Strzok and Pientka questioned Flynn, Flynn publicly refuted media reports that he had discussed sanctions with Russia. I had “a brief discussion of the 35 Russian diplomats who were being expelled by Obama in retaliation for Moscow’s alleged interference in the 2016 campaign. ‘It wasn’t about sanctions. It was about the 35 guys who were thrown out,’” Flynn stated.
We now know Flynn was telling the truth and Mueller’s team was lying — both to the court and to America. The Department of Justice is seeking to right that wrong, at least to the extent possible, by dismissing the criminal charge against the retired lieutenant general.
Flynn now faces a new foe in Judge Sullivan, who to date has refused to grant the government’s motion to dismiss. The newly released transcripts should cause the longtime federal judge to realize the error of his way and immediately dismiss the charges. If he refuses, the D.C. Circuit may force his hand soon.