Not too long ago launched paperwork verify that the Federal Bureau of Investigation (FBI) framed Michael Flynn and that the particular counsel’s workplace (and later federal prosecutors) improperly withheld materials exculpatory proof from Flynn’s protection attorneys. Nevertheless, two lesser-noticed realities additionally got here into focus with final week’s unsealing of the FBI’s closing memorandum on the Flynn investigation: The FBI had no correct predication for launching its investigation into Flynn, and the confidential human supply (“CHS”) debriefed as a part of the Flynn probe must be completely investigated for making false statements to the FBI.
Final week, Flynn’s lawyer, Sidney Powell, filed a second complement to the still-pending movement to dismiss the prison case in opposition to the previous Trump nationwide safety adviser. Greater than two years in the past, whereas being represented by attorneys from Covington & Burling, Flynn pleaded responsible to creating false statements to the FBI about his conversations with the Russian ambassador.
Since Powell took over Flynn’s illustration, she has been demanding full disclosure of all documentation surrounding the investigation into Flynn, however to no avail — that’s, till Legal professional Basic William Barr appointed an out of doors U.S. lawyer to evaluation the Flynn investigation.
Missouri-based U.S. Legal professional Jeff Jensen’s probe into the concentrating on of Flynn has uncovered a cache of beforehand undisclosed paperwork. Powell has acquired two batches of paperwork to this point, and instantly filed these with the court docket to complement her argument that presiding Choose Emmet Sullivan ought to dismiss the cost in opposition to Flynn primarily based on egregious prosecutorial misconduct.
Among the many paperwork Powell filed final week was the FBI’s four-page communication closing out the investigation of Flynn, coded Crossfire Razor. That closing communication was dated Jan. four, 2017, however textual content messages included with the court docket submitting reveal that higher-ups within the FBI halted the closing of the investigation. Extra paperwork uncovered by U.S. Legal professional Jensen present that below the guise of that also technically open investigation, FBI brokers Peter Strzok (since fired) and Joe Pientka proceeded to query President Donald Trump’s then-national safety adviser about his name with the Russian ambassador.
No Correct Predicate to Examine Flynn
The small print included within the closing communication reveal one other key level: The FBI’s choice to focus on Flynn below the umbrella of the Crossfire Hurricane investigation was itself pretextual — there was no correct predicate to research Flynn.
In explaining its choice to shutter the Flynn investigation, the FBI famous in its closing communication that it had opened Crossfire Razor “primarily based on an articulable factual foundation” that Flynn “might wittingly or unwittingly be concerned in exercise on behalf of the Russian Federation which can represent a federal crime or menace to the nationwide safety.”
What precisely was that “articulable factual foundation”? 4 information: 1) that Flynn “was cited as an adviser to then Republican presidential candidate DONALD J. TRUMP for overseas coverage points since February 2016,” 2) that Flynn had ties to numerous “state-affiliated entities of the Russian Federation, as reported by open supply data,” three) that Flynn “traveled to Russia in December 2015, as reported by open supply data,” and four) that Flynn had “an lively TS/SCI clearance.”
This was no foundation; this was bull.
The FBI predicated an investigation into one of many prime overseas coverage advisers to a presidential marketing campaign primarily based, first, on the truth that Flynn labored for the Trump marketing campaign, which itself was the goal of the Crossfire Hurricane investigation. And in opening the case on Flynn, the FBI “cross-referenced the predication for Crossfire Hurricane.”
The Predicate for Crossfire Hurricane
Let’s begin with the predication for Crossfire Hurricane, because the FBI believed that added to its justification for concentrating on Flynn.
In his report on the Carter Web page Overseas Intelligence Surveillance Act, or FISA, abuse, Inspector Basic (IG) Michael Horowitz defined that the FBI opened Crossfire Hurricane “in response to data [Counterintelligence Division] officers acquired on July 28, 2016, from a Pleasant Overseas Authorities (FFG) indicating that in a Could 2016 assembly with the FFG, George Papadopoulos, an advisor to the Trump marketing campaign, ‘recommended the Trump workforce had acquired some type of a suggestion’ from Russia that it may help within the election course of with the nameless launch of knowledge in the course of the marketing campaign that will be damaging to candidate Clinton and President Obama.”
Whereas the opening documentation from Crossfire Hurricane relied solely on Papadopoulos’ remark as a foundation for launching the investigation into the Trump marketing campaign, the IG report famous that “the FBI acquired the FFG data at a time when it had motive to imagine that Russia might have been related to the Wikileaks disclosures that occurred earlier in July 2016, and when the U.S. Intelligence Neighborhood (USIC), together with the FBI, was conscious of Russia’s efforts to intervene with 2016 U.S. elections.”
Horowitz concluded that, “given the low threshold for predication,” the FBI had a ample foundation “to predicate the total counterintelligence investigation,” branded Crossfire Hurricane.
Upon the discharge of the IG report, Barr and U.S. Legal professional John Durham — the federal prosecutor Barr appointed to research the Russia probe — each denounced Horowitz’s conclusion that Crossfire Hurricane was correctly predicated. “Final month, we suggested the inspector normal that we don’t agree with a number of the report’s conclusions as to predication and the way the F.B.I. case was opened,” Durham mentioned in an announcement launched shortly after the IG report. Durham confused that the Crossfire Hurricane “investigation will not be restricted to creating data from inside element components of the Justice Division,” and as a substitute “included creating data from different individuals and entities, each within the U.S. and outdoors of the U.S.”
The small print Durham uncovered that decision into query the predication of Crossfire Hurricane stay unknown. However even assuming the FBI correctly predicated the Crossfire Hurricane investigation, the concentrating on of Flynn in a separate investigation fails to fulfill even the “low threshold for predication” on which Horowitz hung his hat.
Because the IG report famous, the lawyer normal and the FBI’s Home Investigations and Operations Information requires an “articulable factual foundation” that, “if true,” “fairly signifies” the goal could also be concerned in “an exercise constituting both a federal crime or a menace to nationwide safety,” or terrorism or another official investigative goal not at difficulty right here.
However not one of the grounds for concentrating on Flynn famous within the IG report “fairly” point out the previous nationwide safety adviser “might have been concerned in an exercise constituting a federal crime or a menace to nationwide safety.” That conclusion ought to have been apparent from the IG’s report when it hit in December 2019. However so many important revelations emerged within the 400-page report, Horowitz’s perfunctory dialogue of the difficulty went unnoticed, and his conclusion that “the quantum of knowledge articulated by the FBI to open” the person investigation of Flynn was ample to fulfill the low predication threshold went unchallenged.
The FBI’s Bogus Foundation for Investigating Flynn
Nevertheless, one element contained within the closing doc — however omitted within the IG report — in regards to the predication jolts consideration to the absence of a correct predicate.
Along with noting that Flynn served on the Trump marketing campaign, the closing memorandum supplied as a rationale for opening an investigation into Flynn his “lively TS/SCI clearance.” This truth not solely doesn’t justify investigating Flynn, it cuts in opposition to your entire concept that Flynn might have been concerned in exercise on behalf of the Russian Federation.
Mere months earlier than the FBI launched Crossfire Razor, the Obama administration’s Protection Intelligence Company (DIA), in April of 2016, renewed Flynn’s “prime secret/delicate compartmented data” clearance. “That approval is critical,” wrote Eli Lake within the Chicago Tribune. “The method for renewing a safety clearance at that stage is intense. It contains interviews with associates and associates and an intensive background examine. Flynn took a polygraph take a look at as a part of his reapplication for the safety clearance.”
The timing of that April 2016 renewal can also be important as a result of the FBI claimed two further information justified its launch of Crossfire Razor, however these information pre-dated Flynn’s TS/SCI clearance. Particularly, the closing doc famous Flynn had ties to numerous state-affiliated entities of the Russian Federation, presumably Russia At this time, for whom Flynn gave a speech in Moscow in December 2015 — the premise of the ultimate supposedly suspicious level.
These information had been identified earlier than Flynn’s TS/SCI clearance renewal. Moreover, earlier than Flynn traveled to Russia in 2015 to talk on the dinner, he was briefed by the DIA. Flynn’s lawyer Sidney Powell instructed me that Flynn additionally briefed the DIA upon his return, and shared with the intelligence company a thumb drive of knowledge he had collected throughout his Russia journey.
Beneath these circumstances, it’s past ridiculous that the FBI relied on Flynn’s 2015 journey to Russia as offering a “factual foundation” for suspecting that he was “concerned in exercise on behalf of the Russian Federation which can represent a federal crime or menace to the nationwide safety.” On condition that these occasions occurred after Flynn’s TS/SCI clearance renewal, the FBI may don’t have any “affordable” foundation to launch an investigation into him.
Whereas the IG report concluded in any other case, Horowitz’s workforce inexplicably omitted any point out of the FBI’s reliance on Flynn’s TS/SCI clearance renewal. May which have been as a result of Horowitz realized the predicate supplied for the launch of Crossfire Razor crumbled when Flynn’s top-secret-plus clearance was factored into the combination?
Or would possibly there have been different “information” identified to the FBI that had been omitted from the opening digital communication?
Right here the FBI’s closing communication, learn along side the IG report, means that chance.
Did the FBI Have Undisclosed Intel on Flynn?
Recall first that the IG report famous, “After conducting preliminary open supply and FBI database inquiries, intelligence analysts on the Crossfire Hurricane workforce recognized three people — Carter Web page, Paul Manafort, and Michael Flynn — related to the Trump marketing campaign with both ties to Russia or a historical past of journey to Russia.” Nevertheless, the Crossfire Hurricane workforce on Aug. 10, 2016, initially opened solely separate counterintelligence circumstances on Web page, Manafort, and Papadopoulos. The FBI didn’t open a case on Flynn till Aug. 16, 2016.
Why the delay? What modified? The IG report doesn’t inform us, but it surely suggests a chance.
On Aug. 11, 2016, the Crossfire Hurricane workforce met with “Supply 2,” reportedly CHS Stefan Halper. Throughout that assembly, the FBI inquired about Papadopoulos, however whereas Halper hadn’t heard of Papadopoulos, he famous he had met marketing campaign volunteer Web page and requested if the FBI had any curiosity in Web page. Halper additionally “instructed the Crossfire Hurricane workforce that [he] had identified Trump’s then marketing campaign supervisor, Manafort, for quite a lot of years and that he had been beforehand acquainted with Michael Flynn.” (Flynn has by no means met Halper, although, Powell instructed me.)
The IG report’s dialogue of its use of Supply 2 makes no additional point out of Flynn, though Horowitz’s workforce reported that Case Agent 1 had “mentioned that it was ‘serendipitous’ and that the Crossfire Hurricane workforce ‘couldn’t imagine [their] luck’ that Supply 2 had contacts with three of their 4 topics.”
The following day, Aug. 12, 2016, the FBI once more debriefed Halper. 4 days later, with a weekend intervening, the FBI opened the case in opposition to Flynn. Why? Was it one thing Halper mentioned?
The IG report doesn’t clarify the delay, and the closing doc makes no point out of one other foundation for opening Crossfire Razor, however we all know from the IG report that within the case of Crossfire Hurricane, the FBI didn’t embody your entire foundation for launching the investigation within the opening documentation. Moderately, as mentioned above, the opening documentation recognized Papadopoulos’ feedback about Russia having data on Hillary Clinton to a pleasant overseas authorities as the only predicate for the investigation. However the FBI brokers instructed Horowitz that the WikiLeaks launch of the DNC emails and the intel indicating Russia supposed to intervene within the 2016 election supplied an essential backdrop to their choice to research the Trump marketing campaign.
Equally, the FBI might have belatedly opened a case on Flynn due to some further “intel.” Right here, the just-released closing doc elevate that chance.
CHS Reporting Echoes a Defective Media Narrative
“The [Crossfire Hurricane] investigative workforce additionally addressed this investigation by CHS reporting,” the closing memorandum learn, noting the Crossfire Hurricane workforce “contacted a longtime FBI CHS to question about [Flynn], searching for ‘any derogatory or lead data.’” In accordance with the FBI’s closing memorandum, “the CHS relayed an incident s/he witnessed,” when Flynn spoke at an occasion, the title of which was redacted. The CHS instructed the FBI workforce that on the time of Flynn’s speech, he was nonetheless throughout the U.S. intelligence neighborhood.
The CHS mentioned that after Flynn spoke on the occasion and socialized over dinner and drinks, members of the unnamed group organized for a cab to take Flynn to a prepare station, at which era an individual whose id was redacted within the doc, “stunned everybody and obtained into [Flynn’s] cab and joined [Flynn] on the prepare journey” to his vacation spot. The CHS added that “s/he was considerably suspicious of” this particular person, claiming the individual’s “father could also be a Russian Oligarch” residing in an unnamed metropolis.
For these following the Flynn case, this “intel” intently resembles a narrative first peddled within the press by Christopher Andrew in February 2017, when he penned a chunk for the U.Okay.’s Sunday Instances titled “Impulsive Basic Misha Shoots Himself within the Foot.” Andrew, who had served because the official historian of Britain’s MI5, wrote of a dinner gathering at a Cambridge intelligence seminar at which Flynn had spoken whereas nonetheless serving as then-President Obama’s director of the Protection Intelligence Company.
Andrew recommended in his article that an intrigue started over dinner and drinks between Flynn and an unnamed Russian-national graduate pupil.
Different retailers rapidly pushed the narrative, with the Wall Road Journal figuring out Svetlana Lokhova as the feminine pupil. Lokhova later sued the Wall Road Journal and different retailers, alongside together with her former Cambridge colleague, Halper, for defamation, alleging Halper was behind Andrew’s story and the opposite false reporting that recommended she had an affair with Flynn and was a Russian spy.
Lokhova is satisfied Halper is the CHS mentioned within the closing memorandum, and she or he is the unnamed particular person who supposedly jumped within the cab with Flynn and boarded the prepare with him.
How do I do know it’s Halper? Lokhova requested rhetorically. “As a result of reporters had been telling me Halper was peddling the story about me and Flynn as early as December 2016,” Lokhova instructed me. Actually, lengthy earlier than final week’s launch of the closing memorandum, in a Could 2018 interview with the Sunday Instances in regards to the Cambridge dinner, Lokhova identified that she had instructed the London outlet that “Halper instructed reporters he had seen me leaving the dinner with Flynn,” lining up with the CHS’s declare that Lokhova had jumped right into a cab with him.
Lokhova’s lawyer Steven Biss additionally considers the closing memorandum important. “The Closing Memorandum confirms that Halper represented to the FBI that Ms. Lokhova ‘stunned everybody’ and obtained into Basic Flynn’s cab and joined Basic Flynn on a ‘prepare journey.’ This essential new proof corroborates Ms. Lokhova’s allegations in her lawsuit filed in Could 2019,” Biss instructed me.
Was Crossfire Razor Predicated on a Lie?
Earlier this yr, a federal court docket tossed Lokhova’s lawsuit in opposition to Halper and the opposite media retailers, stopping her from acquiring discovery essential to show her case. Lokhova has appealed that dismissal, and Biss maintains that the discharge of the closing communication “demonstrates that the district court docket short-circuited and prematurely dismissed Svetlana Lokhova’s case in opposition to Stefan Halper.”
“Now we all know that Halper, the ‘established FBI CHS’ referred to within the Closing Memorandum, relayed an incident he claims he ‘witnessed’ when Basic Flynn spoke on the dinner in Cambridge on Feb. 28, 2014,” Biss instructed me, including, “We look ahead to reversal on attraction so she will be able to get hold of additional discovery of Halper’s function within the defamation.”
Whereas Lokhova and Biss are satisfied Halper is the unnamed CHS, there are different potentialities. The CHS may very well be somebody who really attended the Cambridge dinner — which Halper didn’t. Richard Dearlove and Christopher Andrew, each of whom have connections to British intelligence, may have been the CHS. Or chance one other attendee?
Regardless of the id of the CHS, nonetheless, the declare that Flynn left the Cambridge dinner with a Russian is fake, and a CHS who claimed to have witnessed that occasion would have been knowingly mendacity to the FBI. Did that lie function an unsaid predicate for launching Crossfire Razor?
The FBI is aware of, and the FBI and DOJ know the id of that CHS. Lokhova deserves to know the reality. America deserves to know the reality. And that CHS, whoever it could be, deserves to be investigated for his function within the SpyGate scandal.
Margot Cleveland is a senior contributor to The Federalist. Cleveland served almost 25 years as a everlasting legislation clerk to a federal appellate choose and is a former full-time college member and adjunct teacher on the faculty of enterprise on the College of Notre Dame.
The views expressed listed here are these of Cleveland in her personal capability.