DiGenova On The Flynn/Kislyak Call

Appearing on the Howie Carr show this week, Joe diGenova weighed in on the non-unmasking of Michael Flynn with regard to the famous Flynn/Kislyak call. DiGenova comes down on the side of those who say that the the monitoring of the call was not done by traditional FISA means as I've described them--picking Flynn up on the FISA for the Russian embassy. You can get a good link here, with the relevant portion near the end. Here's a word for word transcript of what Joe says:

I think it's going to become pretty clear that Michael Flynn was NOT unmasked but was rather the subject of a separate intelligence electronic surveillance by a foreign intelligence service at the request of John Brennan. Most likely the United Kingdom GCHQ, which is their NSA. When you look at the timeline in all the of the unmaskings of Flynn, those were done within a timeline that shows that the Kislyak conversation was not conducted in the United States. The Kislyak conversation was when Flynn was in the Dominican Republic and Kislyak was in Moscow for the Orthodox Christian Christmas, which is January 2nd. And so that means that in order for them to be wiretapped and have their calls intercepted that had to be done by a foreign power. And if you do that at the request of the United States, and you know that a US person is your target, and not Kislyak, that is a crime. That is a violation of federal law. You cannot wiretap an American citizen overseas under circumstances like that.

I want this on the record so that, if I turn out to be wrong, anyone who wants to rub my nose in it will have a good point of reference. Sitting here right now I see many problems with what Joe says.

First, what Joe has right--and I don't mean to sound flippant when I say that. He's right that to have targeted Flynn while he was overseas (in the Dominican Republic) in the absence of a FISA order on Flynn would have been illegal.

The problems start with the statement that "Kislyak was in Moscow for the Orthodox Christian Christmas, which is January 2nd." The Russian Orthodox Christmas is NOT on January 2nd. The Russian Orthodox Christmas is actually on January 7th--about nine days after the phone call, which was on December 29th.


If Kislyak had been in Moscow on December 29th, he would have left DC a day or two earlier at a minimum. I remain dubious that Kislyak would have left his important post at such an important time as the Presidential Transition. To have done so to arrive in Moscow no later, but probably at least a bit earlier, that December 29th would mean that he left DC a week and a half (at least) before Russian Christmas. And then he might stay for a few days afterward, what with free flowing vodka and all. That would mean an absence from DC during a Presidential Transition of no less than 2 weeks. I'm skeptical, but maybe some clever researcher can find Kislyak's schedule online.

Next, while I personally have not doubt at all that GCHQ did cooperate with the coup plotters before the US 2016 election, I'd be much more skeptical of the proposition that GCHQ agreed to specifically target the incoming US National Security Adviser during his overseas travels on behalf of the lame duck Obama CIA. IMO, GCHQ's Robert Hannigan would have long since--probably since early 2016--been aware that John Brennan and Admiral Mike Rogers at NSA were not exactly simpatico. Indeed, it appears that Hannigan did actually consult with Brennan during the summer of 2016 rather than with Rogers. Hannigan would have had to be concerned that at some point during the new Trump administration, between possible new people at CIA, Flynn as NSA, and Rogers at NSA, Trump might become aware of the shenanigans. Especially given the fact that Trump already knew about GCHQ's bad behavior before the election, for GCHQ to have continued after the election, shortly before the inauguration, would IMO have been far too big a risk for Hannigan to undertake on his own. Maybe the Brits are insane, but I'll give them the benefit of the doubt in this case.

Then, too, there is the question of the FBI "tech cuts". The FBI insists that it wrote up the Flynn/Kislyak on a "tech cut" and sent it to James Clapper at ODNI. Yes, it would have been technically possible for GCHQ to collect the Flynn/Kislyak call on December 29th and rout it to the FBI the same day, and for the FBI then write it up the same day as a "tech cut." However, that would have involved some fairly fast footwork, probably prior coordination. More importantly, it would also have involved James Comey--who, unlike Brennan, had some prospects of continuing in place at the FBI--in unforgivable conduct. Beyond Comey, though, there would have been the entire Obama White House.

I think I can guarantee that Trump found out exactly how the collection of the call worked within hours of learning about it. Comey would have been fired shortly thereafter if he had had any involvement. Trump would not have spent most of the first half of 2017 wondering whether or not to fire Comey. He would have known. We know he spoke openly of having been "wiretapped" during the election campaign. Who thinks Trump would have been silent about Obama's administration targeting Flynn? Me neither. There would be no reason for Trump to remain silent about it and every reason to talk about it--loudly and often.

So, I'll stick with my account of how this worked.