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.
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.