Dismissal Filing in Flynn Case Extracts High Price From Comey

(AP Photo/Andrew Harnik, File)
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FILE – In this Thursday, June 8, 2017, file photo, former FBI director James Comey speaks during a Senate Intelligence Committee hearing on Capitol Hill, in Washington. Showtime will air a new documentary series from award-winning filmmaker Alex Gibney examining the history of clashes between U.S. presidents and the FBI. The four-part series inspired by the book “Enemies: A History of the FBI” by Tim Weiner will debut Nov. 18, 2018, Showtime Networks chief David Nevins told TV critics’ Monday, Aug. 6. (AP Photo/Andrew Harnik, File)

Justice Calls Out Comey as Rogue Operator In Exposing The Illegal FBI Effort to Pursue an Interview of General Flynn


On Thursday May 7, the Justice Department filed a motion in the Michael Flynn case to dismiss the pending charge with prejudice. The basis for the motion is that when the FBI questioned Gen. Flynn on January 24, 2017, there did not exist a legitimate predicated investigation concerning the matters that were the subject of that interview. In DOJ’s words, “The interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn – a no longer justifiably predicated investigation that the FBI had … prepared to close because it had yielded an ‘absence of any derogatory information.’”

But the most eye-opening facts in the filing come in the accounting given to the process leading up to the decision to send the two Agents, Peter Strzok and Joe Pientka, to interview Gen. Flynn in his White House office. This filing, backed up by reports of interviews of Obama Administration officials in the Department of Justice, is the first significant public statement – from the Department of Justice where Comey occupied probably the 2nd and 3rd most significant positions, as well as the most important U.S. Attorney post during his career – calling him out as duplicitous and a threat to civil liberties.

Most surprising to me is that it seems to be the case that senior Obama DOJ officials were largely kept in the dark by Comey and McCabe about the status of the counter-intelligence investigations of Trump Campaign and Administration officials. Both Mary McCord – Assistant Attorney General for the National Security Division – and Dep. Attorney General Sally Yates said in interviews they were blindsided by the information when they were told about the status of the investigations. While they both knew that Crossfire Hurricane existed, and they knew that Carter Page was the subject of a FISA warrant, the DOJ filing suggests that Comey and McCabe mostly denied them any information about what was generated during the investigations. This monopoly on information made it impossible for senior DOJ Officials to effectively monitor and supervise the actions of the FBI.  Both McCord and Yates were interviewed in mid-2017 by representatives of Special Counsel’s Office of Robert Mueller after they took over the investigation from the FBI.  Both were interviewed extensively on the question of how the interview of Gen. Flynn came to happen on January 24, 2017.


McCord kept extensive notes on the issues related to the Russia investigation, as any criminal case that might come out of that investigation would have been handled by prosecutors she supervised and her notes helped her understand how the investigation evolved over time. Her notes reflect many internal discussions about whether the FBI should notify the incoming Trump Administration of Gen. Flynn’s calls with the Russian Ambassador. Her notes reflect a general consensus among DOJ that the new Administration should be told, but the FBI resisted.  Her notes describe Yates and Matt Axelrod, Yate’s top Assistant, as being “increasingly frustrated” by the FBI’s view on the matter. McCord’s notes reflect her own efforts to “push” McCabe on the matter in her conversations with him, telling him both Director of National Intelligence and CIA agreed that the new Administration should be told about Gen. Flynn’s calls.

McCord’s notes show that Yates spoke with Comey on Jan. 23 about the issue, but Comey did not change his position.  The Trump Administration was in office, and Yates was now Acting Attorney General following the resignation of Loretta Lynch.  So Comey refused to follow the guidance of the Attorney General.

In the morning on Jan. 24, Yates had a meeting in her conference room with several senior DOJ officials, and at the end of the meeting, she told them that she was going to tell Comey that he had to tell the White House about Gen. Flynn’s calls with the Russian Ambassador. She left the room to make the call, only to return several minutes late to tell the others that Comey told her he had already sent two Agents to the White House to interview Flynn. McCord’s notes describe those in the room as “flabbergasted” by Comey’s action. She described Yates as “dumbfounded”, and the senior DOJ officials were “annoyed” that Comey had not solicited their input on the decision to send agents to conduct an interview given the extraordinary circumstances.


In Yates’ interview by the Special Counsel’s Office, she stated that she was aware of the FBI’s intercept of the Flynn calls to the Russian Ambassador only because of the Oval Office meeting of Jan. 5 with Pres. Obama, when he asked her and Comey to remain when the meeting ended.  With just the three of them in the room, he told them he was aware of the calls, and that Gen. Flynn discussed the issue of sanctions with the Russian Ambassador. Obama wanted to know if they should be treating Gen. Flynn differently than other members of the incoming administration. Yates told the investigators that she had no idea what Obama was referring to at that point – she was unaware of the calls or the transcripts as the FBI had not communicated anything to her. She recalled that Comey mentioned the Logan Act, but there was no discussion about a criminal investigation or prosecution in the meeting. She said she was so taken aback by the news she didn’t recall what Comey said in response to Obama’s comment as she was still trying to understand what Obama was conveying to them since she was completely unaware.

Yates said she immediately called McCord, who was head of the National Security Division, and McCord said she had only learned about the calls the previous day, and had a meeting scheduled on Yates’ calendar for that afternoon to brief her on what she knew. In that meeting, there was some discussion of the Logan Act, and no one at DOJ took the idea seriously – but that was not the case at the FBI.

Following VP Pence’s appearance on Face the Nation, Yates described a series of discussions among DOJ, FBI, CIA, and DNI leadership personnel about the need to communicate to the incoming Trump Administration the information regarding Gen. Flynn’s calls.  Yates said the general consensus was that the Trump officials should know what the incoming NSA had said in the calls since it was contrary to what members of the Trump Administration were saying in public. But Yates said that in her conversations with Comey and McCabe on the subject, they continued to refuse to agree to notify anyone connected to the incoming Administration.


Yates said that at some point, Comey or McCabe said notification would “mess up” an ongoing investigation, but Yates was not clear on exactly what the FBI was doing to investigate Flynn.

Assuming her statement is true, that means the Deputy Attorney General — later Acting Attorney General — who supervises the FBI on behalf of the Department of Justice, was unaware of Crossfire Razor, the counterintelligence investigation of an incoming member of the Trump Administration. THAT is the FBI going “rogue.”

Yates said that in the days leading up to the inauguration, she continued to push Comey and McCabe to notify the Trump Administration of the Flynn calls, and that both continued to resist the idea. She continued to point out that the other intel agencies agreed with her, and not with the FBI’s position. She said that the day before the inauguration, she heard from one of her Assistants that Comey had told Clapper and Brennan there was an “ongoing criminal investigation” and that notifying the Trump Administration would interfere with that investigation.

After Trump Press Secretary Sean Spicer made a more emphatic denial in a press briefing on the question of what Flynn had talked to the Russian Ambassador about, Yates decided that “enough was enough”, and that the White House needed to be told. She spoke with trial attorneys in the National Security Division, and all agreed at that point that notification was more important than protecting any investigation the FBI might have underway — about which no one at DOJ was aware.

The following day, with a group gathered in her conference room, Yates placed a call to Comey for the purpose of directing him to notify the White House – she was now Acting Attorney General – but Comey told her that he had already sent Agents that morning to the White House to interview Gen. Flynn.


Yates expressed her frustrations to Comey, and said any such interview should have been discussed with NSD prosecutors, and the issue of whether to record the interview should have been discussed. In response Comey said to her “You know why I did this”, to which she replied “No.” And his response was that he did it so “It would not look political.” When Yates relayed the information from the call to the DOJ officials gathered in her conference room, the collectively “hit the roof”.

Just like he did in the Clinton email investigation when he stepped out ahead of DOJ with his press conference, and usurped the prosecutorial decision-making by announcing the FBI’s view of the evidence, Comey once again took it upon himself to determine how DOJ should act, and in doing so usurped authority that did not belong to him. He knew from his prior interactions that DOJ officials – Obama DOJ officials – did not support the path he was intent on following.

The revelations about Jim Comey since the date of his firing all point in one direction – Comey was an extremely dangerous man to been entrusted with the extraordinary power as FBI Director. His belief in the infallibility of his views of “right” and “wrong” mean that he was unmanageable – he was the “law unto himself”, unable to be persuaded with regard to incorrect and even illegal actions he was directing others to take. He expressed disdain and contempt of the views of those who opposed what he was doing, and he usurped authority that did not belong to him when he did not trust those who possessed that authority to use it in ways he deemed correct.


Much of this has been revealed to the public since he was fired – with tomorrow being the 3 year anniversary of that event. Many who knew him in his years with DOJ have confessed to knowing about his streak of self-righteousness and moral preening. But in the aftermath of his departure, now with the benefit of 20-20 hindsight with regard to much of what he did, the danger that Jim Comey represented is on full display.



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