Opening And Closing The Flynn Case

Among the very interesting revelations in the Flynn case in the last two days--with more to come--is the FBI's Washington Field Office's EC (electronic communication) dated 1/4/17, closing the Flynn case. That is, closing it until Peter Strzok at FBIHQ got wind of WFO's intention to close the case and quickly told them to keep it open. Of course the rush to keep the case open was an administrative measure--in order for FBIHQ to pull off their Logan Act interview ploy with regard to Flynn's 12/29/16 conversation with Russian Ambassador Kislyak they needed an open investigation.

It's necessary to understand that the Logan Act ploy was not set in stone. The upper levels at both FBI and DoJ were looking for some way to attack the incoming Trump administration--if possible to abort the inauguration of Donald Trump as president. Nevertheless, due to the highly suspect constitutionality of the Logan Act, as well as the near certainty that it could not be applied to Flynn as an authorized person in the transition, the Logan Act could never really be anything but a colorable excuse for talking to Flynn. For FBIHQ to have opened an actual investigation of Flynn based on a WAT (wild ass theory) of a Logan Act violation was a non-starter. The hope was to catch Flynn in an inaccuracy that could be trumped up into a false statement under 18 USC 1001. Ousting Flynn and thereby putting Trump under suspicion would ultimately always have to be a PR op rather than a legal one--thus the leak to David Ignatius at the WaPo. If things went south in the interview, the Logan Act ploy was basically just a CYA device for the plotters. It was never really serious.

Fortunately for the plotters Peter Stzrok was on the ball and, as soon as he got wind of WFO's intention to close the Flynn case (codenamed CROSSFIRE RAZOR - CR), he texted WFO to keep CR open. The EC had been written, but the actual case closing administrative procedures hadn't been completed. CR remained open while the plotters made their plans.

What I find so interesting about WFO's closing EC is not so much what we learn about the machinations described above--although that's of interest too. It's what we learn about the actual opening of the Flynn case. Recall that in AG Bill Barr's recent bombshell interview with Laura Ingraham he uttered the memorable phrase regarding the entire Russia Hoax: "without any basis." In real legalese, when he says "basis" he means "predication." There was no predication (basis) for anything that was done to destroy the Trump presidency under the color of law. It was truly, as Barr added, the "biggest scandal in American history."

That memorable phrase, "without any basis" (or, predication) applies to the Flynn case, as well. Whatever happens with the Flynn case going forward--whether criminally or civilly--that lack of any basis or predication will loom ever larger. The combination of an official FBI investigation that was lacking any predication--should never have been opened--with the unquestionable ethical violations of Team Mueller will provide Team Flynn with a powerful one, two, combination.

So, let's take a closer look at that EC, and what was behind it.


To begin with, while all of the administrative details have been redacted from the EC, we have the case caption. The caption tells us that Flynn was being investigated as a foreign agent for Russia under the Foreign Agents Registration Act:

CROSSFIRE RAZOR
FOREIGN AGENTS REGISTRATION ACT - RUSSIA;
SENSITIVE INVESTIGATIVE MATTER

The Foreign Agents Registration Act is 18 USC 951 and, like "1001" (False Statements), is a law whose reach has, in recent years, been expanded far beyond the original intent of Congress. FARA was originally passed in 1938 with the intent of having a tool on hand to prosecute propagandists for Nazi Germany--probably with the example of German - American sympathy for Germany during WW1 in mind. DoJ's stated policy aim has always been to induce propagandists to register--to go public. As a result, FARA violations have almost never been prosecuted. However, it has been increasingly used as a "criminal predicate" when one is needed for other types of violations, and especially in FISA applications.

The Act itself is pretty straightforward. Here are the essentials as they applied in the Flynn case, stripped of exceptions and so forth:

(a) Whoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General if required in subsection (b), shall be fined under this title or imprisoned not more than ten years, or both.

...

(d) For purposes of this section, the term “agent of a foreign government” means an individual who agrees to operate within the United States subject to the direction or control of a foreign government or official, except that such term does not include—

As you can see, the heart of FARA is in the definition of an "agent of a foreign government." Basically, it means someone who operates "subject to the direction or control of a foreign government or official". Thus, the question for the investigators was: Was Michael Flynn operating subject to the "direction or control" of the Russian government or of an official of the Russian government?

Next we turn to the FBI's AG Guidelines for National Security Investigations, which tell us under what circumstances the FBI is able to open an investigation of this sort. It's unclear to me from the EC--partly because all administrative details have been redacted--whether the Flynn case was a Preliminary Investigation (PI) or a Full Investigation (FI). On the one hand, the use of the word "may"--and this will make more sense when we get to the actual text of the EC--tends to indicate that this case was opened as a PI. On the other hand, the use of a codename would be very unusual in a PI (but not impossible in a sensitive matter). Telling most strongly in favor of an opening as a FI is the stress placed on there being "an articulable factual basis" for the investigation, as well as offering "specifics" regarding that factual basis.

A quick look at the Guidelines will show what I'm talking about. Here are the portions that govern the opening of investigations of foreign agents--edited down to the essentials.

First we have provisions that apply to both PIs and FIs--either can be used to investigate an individual who "is or may be" an agent of a foreign power:

B. COMMON PROVISIONS FOR PRELIMINARY AND FULL INVESTIGATIONS 

1. Circumstances for Opening an Investigation 

The circumstances on which the initiation of a preliminary investigation or full
investigation may be based are:
a. An individual is or may be an ... agent of a foreign
power.

Next we turn to provisions for opening a PI, and there we see the word "may", and the explanation that the purpose of the PI is "to determine whether the basis exists for a full investigation." In other words, a PI is used as a stepping stone when there may be an allegation but there aren't sufficient "specific and articulable facts" to support a FI:

C. PRELIMINARY INVESTIGATIONS 

1. Initiation
A field office or FBI Headquarters may initiate a preliminary investigation:
a. when there is information or an allegation indicating [an individual is or may be an ... agent of a foreign power] in order to determine whether the basis exists for a full investigation; 

Finally, provisions for opening a FI, and there we see that the word "may" is replaced by "is," and the stipulation is made that a FI requires "specific and articulable facts that give reason to believe" that the person under investigation is an agent of a foreign power. What that means, concretely, is that in the case of a FARA investigation there must be specific and articulable facts to believe that the individual, here Michael Flynn, is acting "subject to the direction or control" of Russia.

D. FULL INVESTIGATIONS 

1. Initiation
FBI Headquarters or a field office may initiate a full investigation if there are specific and articulable facts that give reason to believe that [an individual is  ... an agent of a foreign power].

The fact that the WFO closing EC addresses the prior opening of the case in terms of "an articulable factual basis" and offers "specifics", but mentions no "allegations," leads me to believe that the FBI opened a FI on Flynn.

So, what exactly was that "articulable factual basis" for claiming that Michael Flynn, Lt. General (Ret.), was an agent of the Russian government, acting subject to the direction or control of Russia?

Below are the first two paragraphs of the EC, which lay out the basis for the investigation of Michael Flynn. You'll see that the language of the EC closely tracks the language of the Guidelines as well as of FARA. But first some preliminary explanations.

When the EC speaks of "the FBI," I believe that it is almost always referring to the Washington Field office of the FBI. However, since the Crossfire Hurricane umbrella investigation was opened by FBIHQ, courtesy of Peter Strzok, that means that the "predetermined criteria" for opening sub-investigations under that umbrella would have been set by FBIHQ. It also means that the "lead information" that WFO received almost certainly came from Strzok, as well.

So:

The FBI opened captioned case based on an articulable factual basis that CROSSFIRE RAZOR (FLYNN) may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security. The FBI predicated the investigation on predetermined criteria set forth by the CROSSFIRE HURRICANE (CH) investigative team based on an assessment of reliable lead information received during the course of the investigation. Specifically, FLYNN was cited as an adviser to then Republican presidential candidate DONALD J. TRUMP for foreign policy issues since February 2016; FLYNN had ties to various state-affiliated entities of the Russian Federation, as reported by open source information; and FLYNN traveled to Russia in December 2015, as reported by open source information. Additionally, FLYNN has an active TS/SCI clearance.

The goal of the investigation was to determine whether the captioned subject, associated with the Trump campaign, was directed and controlled by and/or coordinated activities with the Russian Federation in a manner which is a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act, 18 USC section 951 et seq, or other related statutes.

Now let's break out the elements of the "articulable factual basis," the "specifics." There are four specific elements. When the EC states "as reported by open source information" you should feel free to read: We read it in the NYT, or on the interwebs, or something like that.

FLYNN was cited as an adviser to then Republican presidential candidate DONALD J. TRUMP for foreign policy issues since February 2016;  

FLYNN had ties to various state-affiliated entities of the Russian Federation, as reported by open source information;  

and FLYNN traveled to Russia in December 2015, as reported by open source information.  

Additionally, FLYNN has an active TS/SCI clearance.

Can you see anything at all in that that would lead anyone to believe that Michael Flynn was "directed and controlled by ... the Russian Federation"? Me neither. In fact, despite the boilerplate language about "articulable facts" and "specifics", this laundry list is notably lacking in virtually anything specific at all.

Flynn was part of the Trump campaign. Right. Does that somehow mean he was directed and controlled by Russia? Is this serious?

Flynn had "ties" to "various state-affiliated entities of the Russian Federation"--according to the newspapers. Virtually anyone who travels to Russia for business or pleasure has some sort of "ties." That's because so many "entities" in Russia are "state-affiliated." Duh! The ties in question, for purposes of opening this investigation, need to be ties that form an articulable factual basis for asserting that Michael Flynn was directed and controlled by Russia. There is nothing here to suggest that. NOTHING. No mention of specific "ties" to any nefarious entity or person.

Flynn traveled to Russia! I can tell you that back in the Evil Empire days lots of people traveled to Russia. They traveled on business, they traveled for study, they traveled to visit family and friends, they traveled as tourists. Some of them lived there for years. And I can tell you that we, the FBI, did not open FARA investigations on them just because they had traveled to Russia. Now, with travel to Russia exponentially increased, the likelihood of that happening--except to Michael Flynn--is about zero.

FLYNN has an active TS/SCI clearance. Gotcha?

It should come as no surprise at all that after about five months of finding "nothing derogatory" about Michael Flynn in this hoax investigation, WFO decided to call it quits (I have substitued FLYNN for the case codename):

Following the compilation of the above information, the CH team determined that FLYNN was no longer a viable candidate as part of the larger CROSSFIRE HURRICANE umbrella case. A review of logical [] databases did not yield any information on which to predicate further investigative efforts. While a CHS provided some information on FLYNN's interaction with [LOKHOVA?] the absence of derogatory information on [LOKHOVA?] limited the investigative value of the information. The writer notes that since FLYNN was not specifically named as an agent of a foreign power by the original CROSSFIRE HURRICANE predicated reporting, the absence of any derogatory information or lead information from these logical sources reduced the number of investigative avenues and techniques to pursue. Per the direction of FBI management, FLYNN was not interviewed as part of the case closing procedure. 

The FBI is closing this investigation. If new information is identified or reported to the FBI regarding the activities of FLYNN, the FBI will consider reopening the investigation if warranted.

But then, the FBI already knew there was "no there there." And if the FBI knew that, then all the smart prosecutors on Team Mueller--who had this EC from the get go--knew that the who Flynn case was a hoax from the start.

Anyway, Strzok got wind of this on 1/4/17 and immediately texted, Don't close, repeat, do NOT close--7th Floor at FBIHQ (where disgraced former FBI Director Comey and disgraced former Deputy Director McCabe had their offices) involved.

The next day, 1/5/17, Comey went to the Oval Office. Present for that meeting were: Barack Obama, Joe Biden, Sally Yates, Susan Rice, and James Comey. Since Rice mentions "IC leadership" I think we can assume that James Clapper and John Brennan were also present for the general "Russia Hoax Hacking" part of the meeting, before that smaller Obama/Comey/Yates meeting. Here is the famous Susan Rice to self email that describes that meeting:

On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present. 

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book. 

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia. 

(Long Redacted Paragraph) 

The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.

Declassification Date: 1/20/27

Note--this meeting was conducted in the immediate context of WFO determining that there was NOTHING derogatory known about Michael Flynn, who would be Trump's National Security Adviser. And yet there's talk of not sharing classified information? That tells us a bit more about why WFO was instructed to keep the Flynn case opening--to justify not sharing. But that later small group meeting with Comey and Yates, who we know were already speculating about a Logan Act gambit. Hmmmm.