McCarthy begins with ground that should be familiar by now--the Obama, Sally Yates, Comey "pull-aside" meeting in the Oval Office on January 5, 2017. This is the meeting described in the now released transcript of Mary McCord's House testimony as well as in Yate's interview by Team Mueller. (See: Mary McCord: Leak To David Ignatius Could Have Come From Obama WH.) Here's McCarthy's description of what occurred in that "pull-aside" small-group meeting:
After the main briefing, the president asked Yates and FBI director James Comey to stick around to meet with him, along with Vice President Biden and National Security Advisor Susan Rice. Yates was taken aback when Obama explained that he had “learned of the information about Flynn” and his conversation with Kislyak. She was startled because, she later told investigators, she “had no idea what the president was talking about.”
Yates had to figure things out by listening to the exchanges between President Obama and FBI director Comey. The latter was not only fully up to speed, he was even prepared to suggest a potential crime — a violation of the moribund Logan Act — that might fit the facts.
Apparently Obama assumed that not only Comey but Yates as well would know what he was talking about re the Flynn/Kislyak conversation. In fact, Comey probably assumed the same, because Comey's right hand guy, disgraced former FBI Deputy Director Andrew McCabe, had called McCord, the head of DoJ's National Security Division (NSD) and briefed her on the Flynn/Kislyak call two days previously. However, McCord hadn't briefed Yates on the matter, as Obama and Comey assumed would have happened. McCarthy writes:
Evidently not appreciating what the FBI regarded as the urgency of the matter, McCord did not pass the information along to the acting AG [Yates] before her White House meeting.
That's actually a very important detail. As we have learned, the reason that neither McCord nor Yates saw the "urgency" of the Flynn/Kislyak conversatoin was because they recognized that Flynn's discussions with foreign leaders--including Kislyak--were perfectly appropriate in the transition period. Moreover, they also regarded the whole Logan Act theory as basically nonsense. The point is that the supposed urgency regarding the call had nothing to do with law or national security, and everything to do with plotting a coup under color of law. That hadn't occurred to Yates or McCord at that point.
McCarthy turns to the NYT article--Flynn’s Downfall Sprang From ‘Eroding Level of Trust’--for a key detail that has largely gone unremarked--until now:
When General Flynn was forced to resign as national-security adviser after just three weeks on the job, the New York Times did its customary deep dive, in which seven of its best reporters pressed their well-placed sources for details. It was a remarkable report, which recounted — as if it were totally matter-of-fact — that Flynn’s communications with Kislyak had been investigated by the FBI in real-time consultation with President Obama’s aides. For example (my italics):
"Obama advisers heard separately from the F.B.I. about Mr. Flynn’s conversation with Mr. Kislyak, whose calls were routinely monitored by American intelligence agencies that track Russian diplomats. The Obama advisers grew suspicious that perhaps there had been a secret deal between the incoming [Trump] team and Moscow, which could violate the rarely enforced, two-century-old Logan Act barring private citizens from negotiating with foreign powers in disputes with the United States."
"Obama advisers"? I think we know that means: Susan Rice, or someone in her immediate staff. Telling Rice was the equivalent of telling Obama himself, and that puts us squarely inside the Oval Office (square peg in oval hole?). And almost immediately the idea arose of
nailing Flynn on the Logan Act . . . an obsolete, unconstitutional vestige of the President John Adams administration that has never, ever been prosecuted in the history of the Justice Department (the last case appears to have been in 1852; DOJ was established 18 years later). [In fact, the only two instances in which the Logan Act was invoked involved indictments that never, as McCarthy notes, proceeded to actual prosecutions.]
Where did the idea of using the Logan Act come from? Not from DoJ, which would have had to approve a prosecution. McCarthy quotes McCord's view that it actually originated in the office of disgraced former DNI James Clapper:
McCord (whose interview is Exhibit 3 in DOJ’s Flynn dismissal motion) later told investigators that the Logan Act flyer originated in the office of Obama’s director of national intelligence, James Clapper — specifically proposed by ODNI’s general counsel, Bob Litt. Obviously, by January 5, Comey was already discussing it with Obama.
McCarthy puts that together with more from the NYT article that tells us a lot about who the key plotters were:
For the legal analysis of Flynn’s exchanges with Kislyak, the president’s aides [again, probably to be read, Rice or someone deputed by her] consulted the FBI, not DOJ:
The Obama officials asked the F.B.I. if a quid pro quo had been discussed on the call, and the answer came back no, according to one of the officials, who like others asked not to be named discussing delicate communications. The topic of sanctions came up, they were told, but there was no deal.
So no misconduct.
No misconduct, which means: no evidence of a crime, no predication, and therefore, no investigation may legally be conducted. No interview of Flynn, because that's an investigative step. In other words, if this plot to frame Flynn and damage or even remove Trump were being run "by the book", it would all have been dropped right then and there with the knowledge that Flynn's actions were those that were "by the book." But Comey was never one to do things "by the book," as the "dumbfounded" Yates discovered when Comey went ahead and dispatched Strzok and Pientka to interview Flynn against her wishes.
Here's a final takeaway from this. It would appear to be very much in the interests of Yates and McCord to cooperate with John Durham, to separate themselves to the greatest degree possible from the plot to screw Flynn. And when I say "cooperate" I mean "cooperate fully," because once you start cooperating there's no drawing lines. Not here, anyway, where Yates and McCord would be in no position to draw any lines with Durham.
Also, Susan Rice could be facing some very serious decisions.