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The Flynn Tapes: A New Tell

Carlos Barria/Reuters
Former National Security Adviser Michael Flynn prior to a news conference on the day he resigned, Washington, D.C., February 13, 2017

In early February 2017, a senior White House attorney, John Eisenberg, reviewed highly classified intelligence intercepts of telephone conversations between then-National Security Adviser Lt. Gen. Michael Flynn and Russia’s ambassador to the US, Sergey Kislyak, which incontrovertibly demonstrated that Flynn had misled the FBI about those conversations, according to government records and two people with first-hand knowledge of the matter. It was after this information was relayed to President Trump that the president fired Flynn, and the following day allegedly pressured then-FBI Director James Comey to shut down a federal criminal investigation into whether Flynn had lied to the FBI.

Eisenberg reviewed the intercepts on or about February 2, 2017, according to confidential White House records and two former White House officials. Despite the fact that not only Eisenberg but presumably also other senior White House officials learned this information, they apparently took no immediate action. Only on February 8, 2017—after The Washington Post contacted the White House to say that it was about to publish a story about the intercepts showing that Flynn had lied about his conversations with Kislyak—did administration officials do anything. That same day, confidential White House records indicate, then-White House chief of staff Reince Priebus, White House Counsel Don McGahn, and Eisenberg directly confronted Flynn about what they learned from the intercepts. On February 10, Vice President Mike Pence, Preibus, and McGahn spoke to Flynn again, but received no satisfactory explanations from him, and recommended to President Trump that Flynn be fired. On February 13, 2017, Flynn resigned. 
 
A former senior White House official, with first-hand knowledge of the matter, expressed disbelief at the inaction: “You have a White House lawyer learning that the national security adviser to the president of the Untied States has possibly lied—about his contacts with Russians—not only to his own White House, but also to the FBI, which is a potential felony, and nobody does anything?” The person added: “I have no reason to question John Eisenberg’s integrity or that he is an exceptional attorney. I guess I buy into narrative that this was a White House in disarray, because the alternative is too painful to contemplate.”
 
Aside from the unexplained, six-day delay of the White House to act on Eisenberg’s information, these new disclosures, building on my July 31 reporting for the Daily, constitute the strongest evidence to date that President Trump may have obstructed justice. Perjury and obstruction of justice cases depend largely on whether a prosecutor can demonstrate the intent and motivation of the person they want to charge. It’s not enough to prove that the person attempted to impede an ongoing criminal investigation; the statute requires a prosecutor to prove that the person did so with the corrupt intent to protect himself or someone else from prosecution. The president’s legal team has claimed that Trump did nothing wrong because he did not understand that Flynn was in criminal jeopardy when, according to the former FBI director’s testimony, he asked Comey to go easy on Flynn. The new information that Trump and others in the White House were aware that the intercepts revealed that Flynn had lied to the FBI directly contradicts those claims.
 
The intercepts read by Eisenberg showed not only that Flynn had misled the FBI, but that Flynn had also earlier misled Vice President Mike Pence in much the same way. Pence had questioned Flynn during the transition after press reports that Flynn’s conversations with Kislyak had been intercepted. Flynn denied to Pence, and later to the FBI, that he had advised Kislyak that the Russian Federation should not retaliate for sanctions imposed by the outgoing Obama administration. The sanctions were imposed on December 29, 2016, to punish Russia for covertly interfering with the 2016 presidential election to help elect Donald Trump as the forty-fifth president of the United States. The intercepted conversations between Flynn and Kislyak occurred later that same day. After his resignation, Flynn pleaded guilty, in December of last year, to federal criminal charges that he had lied to the FBI when he denied discussing sanctions with Kislyak.
 
Flynn was interviewed by the FBI on January 24, 2017, four days after President Trump’s inauguration, as part of an FBI counterintelligence and criminal investigation of the ties between aides to Trump and the Russian Federation. On January 26, then-Acting Attorney General Sally Yates met with White House Counsel Don McGahn to warn the White House about Flynn.
 
Yates told McGahn that US intelligence agencies had intercepted phone calls between Flynn and Kislyak and that the intercepts showed that Flynn had indeed discussed sanctions with Kislyak. Yates pointed out that Vice President Pence, based on assurances Flynn had given him, had publicly denied that Flynn had discussed sanctions with Kislyak. The Russians knew that Flynn and Kislyak had discussed sanctions, but Flynn would want to conceal this fact, she warned, making Flynn “compromised” and vulnerable to blackmail.
 
The White House has previously refused to say whether or when McGahn, or anyone else from the White House, reviewed the intercepts to hear for themselves the evidence that Flynn had advised Kislyak and Russia not to retaliate for the US sanctions. The intercepts read by Eisenberg confirmed what Yates had told McGahn. Based on Eisenberg’s review of the raw intelligence, McGahn informed President Trump what the intercepts revealed, according to a senior administration official and a second person with knowledge of the matter. The White House declined to comment. Through his attorney, Eisenberg declined to be interviewed for this article.
 
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John Eisenberg occupies a unique position and outsize influence in the Trump White House. He simultaneously holds three job titles. As counsel to the president for national security affairs, he reports to White House Counsel Don McGahn and has been McGahn’s primary deputy for legal issues related to national security and foreign policy. Eisenberg is also a deputy assistant to the president and thus directly advises President Trump. Eisenberg is, in addition, the national security legal adviser, a post in which he reported directly to Michael Flynn.

On or about February 2, Eisenberg reviewed the raw intercepts of Flynn’s conversations with Kislyak. Despite what Eisenberg learned, apparently no action at a higher level was taken for six more days, and only after the White House learned that the Washington Post was about to publish a story about the intercepts showing that Flynn had lied to Pence and the FBI about those conversations.

On February 8, 2017, according to confidential White House records, then-White House chief of staff, Reince Priebus, McGahn, and Eisenberg confronted Flynn. What occurred during that conversation is recounted in a confidential White House memo authored by McGahn, Eisenberg, and a third White House attorney, on February 15, two days after Flynn’s firing. The memo, the existence of which I first disclosed in December in Foreign Policy, is a timeline of events within the White House during the run up to Flynn’s resignation. According to the timeline, Priebus, who “led the questioning [of Flynn]… asked Flynn whether Flynn spoke about sanctions on his call with Ambassador Kislyak.”

Faced with new evidence, Flynn changed his story. He no longer categorically denied that he had ever discussed sanctions with Kislayk. Flynn’s “recollection was [now] inconclusive,” the memo recorded; Flynn now said that “he either was not sure whether he discussed sanctions, or did not remember doing so.” On February 10, Vice President Pence, Priebus, and McGahn confronted Flynn again. During that conversation, according to three highly confidential White House documents I have seen, including one set of contemporaneous notes recounting that discussion, Flynn said nothing to allay their concerns. That same day, Priebus and McGahn advised President Trump to fire Flynn, records indicate.

On February 13, Flynn resigned as national security adviser. The next morning, the president cleared the Oval Office of his national security team, so he could speak alone to then-FBI Director Comey. Trump then allegedly pressured Comey to shut down the FBI’s investigation of Flynn. Comey has testified that the president said to him: “I hope you can see your way clear to letting this go, to letting Flynn go.”

In arguing that the president did not obstruct justice, the president’s attorneys have claimed that President Trump did not understand the serious legal jeopardy that Flynn faced when the president fired Flynn and then spoke the next day to Comey on Flynn’s behalf. That the president had been briefed that the intercepts proved that Flynn and Kislyak discussed sanctions, and other senior White House officials also knew this, undercuts that defense.

The president’s legal team has also argued to the special counsel that even though the president and his aides concluded that Flynn had lied to Vice President Pence about his conversations with Kislyak, they were unsure whether Flynn had lied to the FBI before the president’s conversation with Comey about Flynn. But the confidential timeline put together by McGahn and Eisenberg memorializes McGahn’s understanding that Yates had told him about Flynn’s misleading of the FBI, just as he had misled Pence earlier:

Yates… indicated on January 24, 2017, FBI agents had questioned Flynn about his contacts with Kislyak. Yates claimed that Flynn’s statements to the FBI were similar to those she understood he had [already] made to… the Vice President.  

On December 2, 2017, after Flynn pleaded guilty to federal criminal charges that he had lied to the FBI about the conversations he’d had with the Russian ambassador, President Trump appeared to confirm what the timeline had recorded. “I had to fire General Flynn because he had lied to the Vice President and the FBI,” the president tweeted. The White House, in an effort to contain the damage from this admission, said that the tweet had been ghostwritten by one of his personal attorneys, John Dowd, and was not accurate. But a source with direct, first-hand knowledge of the matter told me that Dowd’s tweet was based on what had been recounted in the McGahn timeline, as well as what the president and other senior aides had affirmed to Dowd about what had transpired in Flynn’s firing.

After Yates’s first meeting with McGahn on January 26, the White House asked Yates to meet again the following day. “There was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct,” Yates testified May 8, 2017, before a Senate Judiciary subcommittee. The “underlying evidence” she referred to, of course, were the transcripts of the wiretapped conversations between Flynn and Kislyak. Sources say that McGahn sought to have either himself or another White House official review the classified raw intelligence, which required a visit to a SCIF (sensitive compartmented information facility). Yates explained further:

We told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting… occurred late in the afternoon [of] the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

Senator Sheldon Whitehouse, a Democrat from Rhode Island, asked Yates if McGahn had followed up on this: “And that was the end of this episode, nobody came over to look at the material?”

“I don’t know what happened after that because that was my last day with DOJ,” replied Yates. At Yates’s comment, nervous laughter erupted in the Senate hearing room. As she was waiting to hear back from McGahn, Yates informed the White House that she could not in good conscience have the Justice Department defend the president’s first executive order banning travel from seven majority-Muslim countries, after concluding that the order—drafted by McGahn and other White House attorneys—was unlawful. The president fired Yates that Monday evening, January 30, 2017. In a statement announcing her firing, the White House said that Yates, who had served her country for twenty-seven years as a federal prosecutor, United States Attorney, Deputy Attorney General, and finally, as the Acting Attorney General, had “betrayed” the Justice Department and her country.

To the question Senator Whitehouse asked, which Yates could not resolve, we now have the answer. The White House did indeed send someone over to review the intercepts. As the special counsel knows, that person was John Eisenberg. And what Eisenberg learned, the special counsel also knows, the president understood when he fired Flynn.