Trump, Flynn, and flipping the script on Russia

From the outset, Donald Trump viewed the Russia affair as an attack aimed at him.

In December 2016, when then-President Barack Obama expelled Russian diplomats in response to Moscow’s meddling in the United States election, President-elect Trump felt personally slighted, according to his first chief of staff, Reince Priebus.

“The President-elect viewed the sanctions as an attempt by the Obama Administration to embarrass him by delegitimizing his election,” Mr. Priebus told investigators for special counsel Robert Mueller, according to Mr. Mueller’s final report.

Now, with the Mueller report over a year old and another election looming, President Trump appears to have launched a concerted attempt to undermine the foundation of the Russia probe and cement in history his vision of the investigation as a long, underhanded strike against his presidency.

President Trump’s repeated tweets about “Obamagate” – a vague, unfounded charge that his predecessor orchestrated a spying conspiracy – are part of this effort. Central to its narrative is the saga of Michael Flynn, the Trump national security adviser who pleaded guilty to lying to the FBI during the Mueller investigation.

Under Attorney General Bill Barr, the Department of Justice recently announced it wants to drop its case against Mr. Flynn, an extraordinary move considering that his prosecution is essentially over. The president has hailed the decision as “justice” and proof that the entire Russia investigation was thin as tissue, nothing but a scheme of the “deep state.”

“He wants to turn the scandal against the accusers. ... Translate this into his being the victim, not the villain,” says Princeton University professor of political history Julian Zelizer in an email.

The Muller report, a year later

In recent months, President Trump seems to have turned up the volume on the subject of Russia. Critics say it is an effort to distract attention from his administration’s handling of the coronavirus epidemic. Before 8:45 a.m. on Wednesday, for instance, the president tweeted eight times about “Obamagate-” and five times about Michael Flynn. He tweeted only once about a COVID-19 related subject.

Mr. Mueller’s final report, issued in March 2019, concluded that the Russian government believed it would benefit from a Trump presidency and worked to secure that outcome. Investigators did not establish that Trump campaign members conspired or coordinated with Russia in the effort.

In addition, Mueller investigators said that given the facts and applicable legal standards, they could not say that President Trump did not commit obstruction of justice during their probe.

“While this report does not conclude that the President committed a crime, it also does not exonerate him,” the Mueller report says.

In the months following the report’s release, President Trump insisted that it amounted to a complete exoneration. More recently, he has pushed the idea that the real criminal conspiracy was among the investigators. As support, he has pointed to revelations about problems in the first days of the FBI’s Russia probe, including serious errors and omissions in secret applications to surveil a former Trump campaign aide.

Top administration officials have echoed his concerns. Attorney General Barr has been especially supportive.

“I think the president has every right to be frustrated, because I think what happened to him was one of the greatest travesties in American history,” Mr. Barr said in an April interview with Fox News.

In April 2019, Mr. Barr tapped U.S. Attorney John Durham to examine the early days of the Russia probe, and in particular, whether there was any impropriety in the investigation. Mr. Durham’s investigation has largely proceeded in secret.

In April of this year, Mr. Barr said he did not expect the Justice Department would open criminal investigations into President Obama or former Vice President Joe Biden on this matter. Some critics interpreted this statement as an implicit rebuke of President Trump and his “Obamagate!” tweets. The president himself said he “was surprised” by Mr. Barr’s remark.

But Mr. Durham might yet bring a criminal indictment of some sort related to the opening of the FBI’s “Crossfire Hurricane” probe into the Trump campaign and Russia, noted Ryan Goodman, a former Department of Defense counsel, in a Just Security piece on May 15.

In particular, it’s possible he could identify a former senior official who leaked to a Washington Post reporter the classified intercept of a Dec. 29, 2016, phone call between Mr. Flynn and Russian Ambassador Sergey Kislyak.

The leak was serious disclosure of classified material, revealing details of a phone call at the heart of the case against Mr. Flynn, and Trump critics would have a hard time criticizing an indictment. At the same time, why now?

“Even if there were criminal misconduct involving the leak to the media over three years ago, ask yourself why the investigation just so happens to be heating up now as we enter the general election?” writes Mr. Goodman.

The Flynn saga

Whatever the Durham investigation produces, events dealing with Mr. Flynn and his legal case could well keep the Mueller probe, Russia, and President Trump’s attempts to flip the narrative in headlines for weeks to come.

To his supporters, Mr. Flynn is a good American who was treated badly by powerful, overzealous federal prosecutors. To critics, his actions raised obvious, serious national security concerns, and the lies he told about them had serious consequences.

Mr. Flynn, a former Army lieutenant general, was an early and enthusiastic supporter of Mr. Trump’s presidential campaign, and was rewarded with the plum job of national security adviser.

He only lasted 24 days, a record for shortest tenure in the job. President Trump fired him following revelations that he had misled Vice President Mike Pence and other top officials about the nature of his communications during the presidential transition with Russian Ambassador Kislyak.

In December 2017, he pleaded guilty to making false statements to the FBI and agreed to cooperate with Mr. Mueller’s investigation. Asked by agents whether he had talked about U.S. sanctions with Ambassador Kislyak and urged restraint, Mr. Flynn said no. But the agents knew better, as they had transcripts of FBI wiretaps of the Flynn-Kislyak conversations.

Mr. Flynn reiterated his guilty plea before a federal judge in December 2018. Then in January 2020, he asked to withdraw it, alleging among other things that he had been “duped” into admitting wrongdoing.

Earlier this month, the Department of Justice abruptly reversed course, and filed a motion to dismiss the case with federal Judge Emmet Sullivan. In essence, prosecutors said that in terms of the FBI’s investigation into Mr. Flynn’s activities, his lies didn’t matter.

Agent questioning “was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” wrote Timothy Shea, acting U.S. attorney in Washington, in the motion to dismiss the charges.

But Judge Sullivan appears to be in no hurry to do that. He has asked for outside groups to file friend-of-the-court legal briefs about the case for his consideration, and appointed retired U.S. District Judge John Gleeson to present arguments against the motion to dismiss.

In response, Mr. Flynn’s lawyers went over Judge Sullivan’s head. They asked the U.S. Court of Appeals for D.C. to order the case dismissed. Instead, an appeals court panel ordered Judge Sullivan to explain himself within 10 days. Judge Sullivan has hired his own lawyer to guide him through the legal morass.

Is this a mess? Yes – but it’s a mess with important and complicated separation-of-powers implications, says Barbara McQuade, a former U.S. attorney and University of Michigan law professor.

“Usually it is the executive branch that gets to decide whether to bring prosecutions, and the court plays a very limited role,” says Ms. McQuade. “But here, where there is some concern about the merits of a motion to dismiss, the district judge quite properly wants to make sure that he is not a party to corruption.”

Of personal concern

Critics of the attempt to dismiss the Flynn case say the Justice Department has long known the details surrounding the FBI interview in question, and the only thing that has changed since Mr. Flynn pleaded guilty is the leadership of the Justice Department.

In addition, Mr. Flynn has long been a figure of personal concern for President Trump, they point out.

In early February 2017, shortly after Mr. Flynn’s dismissal, the president cleared the Oval Office to have a one-on-one talk with then-FBI Director James Comey.

“I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy,” President Trump said to the FBI chief, according to the Mueller report.

Later that month, President Trump asked his chief of staff, Mr. Priebus, to reach out to Mr. Flynn and let him know that the president still cared about him. Mr. Priebus called Mr. Flynn and said he was just checking in, and that Mr. Flynn was an “American hero.”

“Priebus thought the President did not want Flynn saying bad things about him,” the Mueller report says.