11 February 2017

What's up with the Flynn phone calls?

Something is not quite right, and seems out of proportion to the outrage associated with General Mike Flynn's calls to Russian Ambassador Sergey Kislyak. First of all, that the calls were both known about and the FBI had checked them out has been known for some time, e.g., the WaPo story FBI reviewed Flynn’s calls with Russian ambassador but found nothing illicit back in 23 Jan 2016. In it, we know the FBI analyzed intercepts and didn't find anything illicit. Today, after a series of leaks from sundry unidentified sources, we're on the verge of a new Iran-Contra, according to an article in The Atlantic titled Michael Flynn's Debacle.


The hubbub seems to be around whether Gen Flynn in some way hinted to the Russians what future policies toward sanctions might be and to alter their reactions or plans based on a Russia-friendly administration in the coming year. Now, that Gen Flynn talked with Ambassador Kislyak is neither illegal nor surprising. What would be is if he did it "with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States" which would be in contravention of the Logan Act. If Flynn did say something to prevent the expulsion of 35 diplomats, he could technically be in violation of the law, but that's hardly Iran-Contra level stuff. And, were the measures of the United States to have the 35 diplomats actually expelled, and the conversation defeated that? But, if he broke the law, it should be taken seriously. What do we actually know or reasonably assume:

  1. Mike Flynn is a career intel guy, head of DIA, and certainly would know that NSA and friends would be listening in on the communications of the Russian Ambassador.
  2. The FBI have looked at these and as of 23 Jan (perhaps earlier) were being reported as "nothing illicit"
  3. There are transcripts of these conversations
So what's going on?

My guess is that folks have gotten hold of the transcripts, and by squinting, have come up with some plausible way to read them that there is some sort of telegraphing. OK, but if that's so, why not leak the transcript? Nothing about methods and means, nothing juicy, nothing that gave the FBI pause for thought a few weeks ago, certainly not the performance data of the F-35 or the plans to the Death Star. This is not a Snowden-level revelation. No, my guess is that they have a weak argument, that in combination with factors like "criminal intent" or ignoring "gross negligence" will ever reach the weak precedent of the e-mail server scandal, where outcome and intent were in leagues away from what apparently is going on here.

Now, I do not think it is right, proper, or legal for citizens to subvert the foreign policy of a sitting president and administration. However, intent and potential for negative outcome needs to be considered when discussing the magnitude of the offense. I will make a prediction with a hedge. First, I think there will be some semantic quibbling, name calling and it will all go away. This is *not* on the scale of Iran-Contra and it will never be seen as such. However, if it does gain some traction, it won't go to court, Flynn will resign with a presidential pardon to follow and possibly a Medal of Freedom with double McAwesomesauce distinction, too, to once again, blow up the news cycle, rev up Trump's base, and put yet another flaming indignation into the hearts of all of his enemies.

PS and full disclosure: I have followed Gen Flynn's career for probably a decade and read with great interest and approval many of his writings related to tradecraft and the state of intelligence gathering, sharing, and interpretation and many ideas how to improve the state of the art. I don't know him personally, but you can say I'm a fan. However, I believe rule of law is more important that what I feel or think, so if you do the crime, then you need to do the time (or fine (or public service (or whatever the consequence is))), no matter how much I like you.

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