KT McFarland: What Sally Yates got wrong about my phone call with Flynn

She suggested—wrongly—that I was a conduit passing along directives from President-elect Trump to General Flynn on what to say to the Russian ambassador

In testimony before the Senate Judiciary Committee Wednesday, former Deputy Attorney General Sally Yates spoke with great conviction about a phone call I had with the National Security Adviser-designate General Flynn on December 29, 2016.

She suggested—wrongly—that I was a conduit passing along directives from President-elect Trump to retired Army Lt. Gen. Michael Flynn on what to say to the Russian ambassador.

She claimed that my call was part of a “very deliberately planned set of conversations” on the part of the incoming Trump administration to “neuter” President Obama’s sanctions against Russia for interfering in the 2016 elections.

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There’s just one problem: That’s not what happened.

Among other topics, Flynn and I discussed sanctions and the long history of the tit-for-tat actions and reactions between the U.S. and the Soviet Union, especially in the 1980s during the Reagan administration.  But at no point did I pass along anything from President-elect Trump.

Yates and others have testified that they zeroed in on Flynn for Logan Act violations. According to the handwritten notes of a senior FBI official, it was Vice President Biden who first brought up the Logan Act during a January 5th Oval Office meeting with President Obama and senior intelligence officials.

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The Logan Act has never been taken seriously in national security circles. It is an obscure federal law enacted in 1799, before the age of modern communications, that forbids private citizens from interfering with the U.S. government’s foreign policy or trying to negotiate with a foreign power on behalf of the U.S. government.

It’s never been used successfully to prosecute anyone, and many legal experts claim it is probably unconstitutional, particularly as applied to an incoming president and his administration.

The act states:   “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”

The gist of Yates’s testimony is that Flynn was trying to interfere with and sabotage President Obama’s policy before the inauguration.

By that same reasoning, you could make the argument that the outgoing Obama administration was trying to interfere with the incoming Trump administration’s policy. By imposing sanctions when he did, President Obama was trying to box in President Trump’s ability to take our Russia policy in a different direction.

Trump had a mandate from the American people to improve relations with Russia; it was one of his main campaign promises. Wasn’t President Obama trying to interfere with President Trump’s policy by presenting Trump with an ongoing U.S.-Russian crisis as he walked into the Oval Office?

But Yates claimed Obama’s sanctions were intended to punish and deter Russia for election interference. Yet, according to the testimony of other Obama officials, they had known about Russian interference for weeks, if not months, before the 2016 election.

To be clear, I believe Russia did interfere with our elections and should be held to account.

But if the Obama administration was so concerned, why didn’t they act before the election when it might have made a difference?  Or even immediately after the election, to punish Russia? Why sit on the information for two months and wait until the closing days of the Obama administration, just three weeks before the inauguration, to take action?

Yates said President Obama and his senior officials were suspicious when the Russians didn’t retaliate, especially because Putin himself made the decision and overruled his Foreign Minister. According to Yates, that was why, during that same Oval Office meeting on January 5th, President Obama explicitly tasked the intelligence community to investigate.

But Putin might have played them all from the start.  Perhaps Putin never had any intention of retaliating and getting into a tit-for-tat crisis with the U.S. over Obama’s sanctions.  He had far more to lose by continuing the antagonistic relationship between our two countries than we did.

The United States had imposed various forms of sanctions on Russia for more than a decade. Over the years they had taken a real bite out of the Russian economy but had no real impact on us.

Trump had made it clear he hoped to improve relations with Russia once he took office. Why would Putin want to risk jeopardizing that just to get back at an outgoing, lame-duck President Obama?

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If so, perhaps Putin wasn’t going “to let a good crisis go to waste” as Obama’s Chief of Staff Rahm Emanuel once said, and stage-managed the entire Russian response.

Putin dramatically swooped in to overrule his Foreign Minister just a few hours after he promised Russian retaliation.

Putin issued a statement that he would rise above “irresponsible ‘kitchen’ diplomacy”. He even invited the children of American diplomats to a children’s Christmas party at the Kremlin!

Such a move would be classic Putin. He could cast himself in the role of responsible senior statesman, take credit for averting a U.S.-Russian diplomatic crisis, preserve the opportunity of improving relations with the incoming president, and get in a dig at the outgoing president.

The great tragedy is that the outgoing Obama administration and its senior intelligence officials used this excuse to set the country on a wild goose chase.

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They knew the Russia investigation was a fraud from the get-go, yet they dragged the nation through more than three years of acrimony, accusations and bitter partisan division.

No amount of after-the-fact shape-shifting and blame-gaming can excuse the fact that they ill-served the nation they were duty-bound to protect.

Sections of this article are adapted from KT McFarland’s book "Revolution: Trump, Washington and 'We the People.'"

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