Why the Flynn-Russia Affair Is So Troubling for Donald Trump

Why the Flynn-Russia Affair Is So Troubling for Donald Trump

Call it what you will: Flynnghazi. Russiagate. The Crackpot Dome scandal. No matter the sobriquet attached to the inappropriate discussions between the Russian ambassador and Michael Flynn, President Donald Trump’s former national security advisor, the growing cancer from this case is not going away. 

Perhaps the Russia scandal seemed like it had disappeared amid the antics of the past week, from Trump’s rambling, 77-minute press conference, his Saturday rally—where he surprised Sweden with news of some imaginary immigrant disaster the previous night—or his declaration that the news media was the enemy of the American people. 

Related: Eichenwald: Can Trump tell the difference between truth and his lies? 

But even if Trump tries to sweep the Flynn affair aside with his now-cliché proclamation that everything he dislikes is “fake news,” enough evidence already exists to demonstrate that this scandal could consume the administration for months to come. Little doubt, Trump’s words at his press conference about Flynn’s Russia contacts—“I would have directed him to do it if I thought he wasn’t doing it’’—will likely join the ranks of ill-advised presidential scandal comments along the lines of “I did not have sexual relations with that woman Lewinsky,’’ and “I am not a crook.”

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There are multiple issues at play in this matter, but the basic story is this: The United States imposed sanctions on Russia following its 2014 military incursion into Ukraine. Additional limited sanctions were put in place last year in reaction to Russia’s use of hacking and propaganda campaigns to influence the American election. In a December 30 conversation with Russian Ambassador Sergey Kislyak, Flynn discussed the sanctions, raising questions of whether he had said anything to undermine the policies of then-still-in-office President Barack Obama. On January 12, The Washington Post reported that the discussions between Flynn and Kislyak had taken place. That day, Flynn denied to White House spokesman Sean Spicer that he had mentioned sanctions. Flynn also deceived Vice President Michael Pence, assuring him that they had only discussed logistics for phone calls with Trump; Pence then repeated that falsehood publicly on January 16. 

All very embarrassing. But what has happened since makes clear this is more than just an issue of White House bumbling. The magnitude of the growing scandal, even without specific details of Flynn’s words to the Russian ambassador, require an understanding of the rules involving surveillance by the National Security Agency and the Federal Bureau of Investigation. Despite the fears of the uninformed, America’s surveillance teams do not read emails and listen in on phone calls haphazardly. There are very specific requirements that already signal that Flynn’s communications with Kislyak, along with any other intercepted information transmitted to representatives of the Kremlin, raise serious issues.

The first rule to understand involves the term of art, “an American person.” Before 9/11, the rules were quite strict: No one could be surveilled in the United States without a warrant issued by a national security court. That meant, if the NSA had detected Osama bin Laden speaking on a cell phone as he crossed a bridge from Canada to Buffalo, they would have to shut down their surveillance the second he reached the American side. A corporation based in the United States was also considered “an American person,” meaning any information about it had to be excised from files and memos. That meant, literally, if the NSA intercepted a conversation overseas where one terrorist told another that he would be flying to the United States on Delta, the information distributed throughout the intelligence community could include the date and the scheduled departure or arrival time, but not the name of the airline.

That system went through a huge overhaul in the aftermath of the Al-Qaeda attacks on the World Trade Center and the Pentagon in 2001. And some of the rules were revised again after Edward Snowden, a former contractor with the NSA, publicly revealed some of the details about the surveillance system. Even still, America is far from being out of the spy business, and for someone like Flynn to get swept up in the surveillance and analysis system requires that the counterintelligence experts in government clear some very high hurdles.

The first rule comes from Executive Order 12333, signed by former President Ronald Reagan in 1981, which gives the FBI and the NSA the authority to use the Foreign Intelligence Surveillance Act as the basis for actively monitoring communications between foreign officials inside the United States, including ambassadors like Kislyak. In fact, the most surprising element of this entire scandal is that, barring absolute incompetence, Flynn must have known—and Kislyak certainly knew—that their conversations would probably be recorded. 

This is not a matter of some simple “listen to it and analyze” process. The amount of data coming into the NSA alone on a daily basis is almost beyond human comprehension. The agency is something of a data factory, chopping, slicing and dicing all information coming in following a series of complex procedures. A program called Xkeyscore processes all intercepted signals before they then move on to another area that deals with particular specialized issues. 

The rules for handling an intercept of a conversation between an official of the American government and the target of surveillance differ in some substantial ways from those used for average citizens. The recording would be deemed “raw FISA-acquired material,’’ some of the NSA’s most highly classified information. Then that recording or a transcript of it would be read into one of the four surveillance programs codenamed RAGTIME. There are RAGTIME-A, -B, -C, and -P. Most likely, according to one former government official with ties to the intelligence community, the conversation would have been analyzed through RAGTIME-B, which relates to communications from a foreign territory into the United States (the Russian embassy is considered sovereign land of that country). The conversation could not have fallen under RAGTIME-A, because that involves only foreign-to-foreign communications. RAGTIME-C deals with anti-proliferation matters and RAGTIME-P is for counterterrorism. (This is the infamous warrantless wiretapping program, with “P” standing for the post-9/11 law, the Patriot Act.)

Assuming the Flynn recording involved RAGTIME-B, because of his position as a former director of the Defense Intelligence Agency and being the incoming president’s national security advisor, the intercepted material would be immediately analyzed.  If Flynn—as the White House first stated when the news of his contacts with Kislyak became public—had been engaged in pleasantries or planning meeting times for the Russians with Trump, the records of Flynn’s side of the conversation would no longer exist. Flynn would have been deemed an American person, and the intercepted recordings and transcripts would be “minimized”—the word used in the surveillance world for when portions or all of an intercepted communication is destroyed. In other words, if the conversation was no more than “How are you Ambassador Kislyak,” or “Let’s set up a meeting for you and a Russian delegation with the president-elect,” Flynn’s words would no longer exist in any American file.

But that’s not what happened. Instead, something in the recording led the first-level analysts from RAGTIME to follow the next leg of the procedure and take the intercept to the head of the FBI’s National Security Division for another review. Again, if a conclusion was reached that there was nothing in the call to raise concerns, the reviews would have stopped there and the data would have been minimized. But the division head instead decided that the intercepted conversation merited bringing the raw transcript to James Comey, the director of the FBI, and his deputy. (At the time, this would have been Mark F. Giuliano, a veteran of the bureau. Giuliano has since retired and, as of this month, was replaced by Andrew G. McCabe, a former lawyer in private practice who joined the federal law enforcement agency in 1996.) The director and his deputy were then the final arbiters of whether the intercepted communications merited further investigation. And they decided it did.

There were three communications intercepted, the first on December 18. One of them was a text message, the other two were phone calls. That raw FISA-acquired material was reviewed by analysts read into RAGTIME, who found it concerning. They took it to the head of the National Security Division, who found it concerning. That led to the transcript being delivered to the director and deputy director of the FBI. And they found it concerning—in fact, concerning enough that they opened an investigation and have already interviewed Flynn. 

The conversation of greatest importance took place on December 30. That was the day after the Obama administration took action against Russia for interfering with the American election with cyberattacks, expelling 35 suspected spies and imposing sanctions on two of that country’s intelligence agencies involved in hacking. It was in Flynn’s conversation the following day that he discussed the issue of American sanctions on Russia, which he later denied having done to Vice President Pence.

Two more events at that time raise the greatest numbers of questions. Espionage has always been a tit-for-tat game. America expels Russian spies, Russia retaliates by expelling American spies and vice-versa. Both sides already know the identities of plenty of spies working alongside the diplomats, so it is hardly difficult to throw them out as needed. But this time, Russia did…nothing. President Vladimir Putin announced the same day as the Flynn call that his country would take no action in retaliation to the expulsion. Then, almost immediately afterward, Trump sent out an almost unprecedented message, tweeting at 1:41 p.m. what amounted to a congratulations to the leader of a foreign aggressor nation for essentially blowing off the American president. “Great move on delay (by V. Putin) – I always knew he was very smart!” Trump tweeted.

The failure by Putin to act stunned the counterintelligence experts in the government. Trump’s rah-rah cheers for this almost unprecedented move were, at best, unseemly and, at worst, a sign that the president-elect was sending messages to Putin that undermined ongoing American policy. The search for information about how this bizarre situation unfolded led to the Flynn recording being discovered, analyzed and brought up the chain of command in the FBI. And on January 12, when Spicer repeated Flynn’s statements, followed by Pence’s assurances on January 16—four days before the inauguration—the FBI knew that someone with the incoming administration was lying. FBI Director Comey decided to wait before contacting the Trump team until after the swearing-in. Finally, a few days after the inauguration, FBI agents interviewed Flynn. Shortly afterward, the acting attorney general, Sally Yates, informed the new White House counsel, Don McGahn, that they had recordings that showed Flynn’s accounts of what he had discussed were not true. Eleven days passed before anyone told the vice president that he had been deceived into making false public statements.

Trump’s tweet praising the Russian president in the middle of all of this subterfuge is troubling enough, but there is one fact that has gone relatively unmentioned: Trump either knows exactly what Flynn said, or he is incompetent. He has the full authority to ask for the raw FISA-acquired material. He could read the transcripts, listen to the recording himself, or have an intelligence analyst sit down with him and go over the conversation in detail. But Trump has never indicated he knows what Flynn said. Worse, in the 77-minute press conference, no reporter asked him that simple yes-or-no question, “Have you read the Flynn transcript or listened to the recording?” So at this point, Trump either knows the same information that has alarmed so many levels of the national counterintelligence experts in government and is unconcerned, or he has failed to ask for details while proclaiming he would have told Flynn to do exactly as the former national security advisor had done. Or the worst option—Trump knew ahead of time what Flynn was planning to do, and the “attaboy!” tweet to Putin was part of it.

So, what did the president know and when did he know it? As previously reported in Newsweek, some of America’s allies, including one foreign intelligence service that also intercepted at least one of Flynn’s communications with the Russians, are trying to figure that out. Meanwhile, the FBI is hard at work investigating the mess of Russia, hacking, Flynn and whoever else gets dragged into this mess.

The investigation apparently has already dug up a lot of information. After lots of foot-dragging by Republicans in Congress who were not eager to investigate Russia’s influence and dalliances with the Trump team, Comey sat down with members of the Senate Intelligence Committee to brief them on what he knew. The meeting lasted for close to three hours. When the senators emerged, there was no more shrugging of shoulders about the Russia scandals. Senator Marco Rubio tweeted out, “I am now very confident Senate Intel Comm I serve on will conduct thorough bipartisan investigation of interference and influence.” Letters from members of Congress were sent to the White House demanding that no documents related to contacts with Russia be destroyed. No one is screaming “Fake news!” anymore when it comes to the Russia story. Except, of course, President Trump.

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