White House Counsel Knew in January Flynn Probably Violated the Law

Don McGahn was looking at whether the national security advisor violated federal laws just days after Trump moved into the White House.

Gen. Michael Flynn, former national security adviser to U.S. President Donald Trump, leaves Federal Court on Dec. 1, in Washington, DC.(Brendan Smialowksi/AFP/Getty Images)
Gen. Michael Flynn, former national security adviser to U.S. President Donald Trump, leaves Federal Court on Dec. 1, in Washington, DC.(Brendan Smialowksi/AFP/Getty Images)

The White House turned over records this fall to special counsel Robert Mueller revealing that in the very first days of the Trump presidency, Don McGahn researched federal law dealing both with lying to federal investigators and with violations of the Logan Act, a centuries-old federal law that prohibits private citizens from negotiating with foreign governments, according to three people with direct knowledge of the confidential government documents.

The records reflected concerns that McGahn, the White House counsel, had that Michael Flynn, then the president’s national security advisor, had possibly violated either one or both laws at the time, according to two of the sources. The disclosure that these records exist and that they are in the possession of the special counsel could bolster any potential obstruction of justice case against President Donald Trump.

The records that McGahn turned over to the special counsel, portions of which were read to this reporter, indicate he researched both statutes and warned Trump about Flynn’s possible violations.

McGahn conducted the analysis shortly after learning that Flynn, on Dec. 29, 2016 — while Barack Obama was still president — had counseled the Russian ambassador to the United States at the time, Sergey Kislyak, not to retaliate against U.S. economic sanctions imposed against Russia by the outgoing administration.

McGahn believed that Flynn, and possibly anyone who authorized or approved of such contacts, would be in potential violation of the Logan Act, according to two of the sources, both of whom work in the administration.

The White House and the special counsel’s office did not respond to a request for comment.

Despite McGahn’s concerns that Flynn violated one or both of these laws, Trump allowed Flynn to continue in his job and only fired him after the Washington Post reported that Flynn had lied to Vice President Mike Pence and other senior administration officials about his contacts with Kislyak. That was 18 days after then-Acting Attorney General Sally Yates informed McGahn of her own concerns about Flynn’s covert diplomacy with Russia prior to Trump taking office.

Another source familiar with the issue confirmed that the White House counsel’s office conducted research on the possible legal violations but disputed some of the details. The research was primarily conducted by John Eisenberg, the deputy counsel to the President and legal adviser to the National Security Council, assisted by James Burnham, another White House counsel staff member, according to the source, who added that they weren’t aware of any records related to that work.

McGahn later drafted “a memo that reflected a timeline of events leading up to Flynn’s resignation,” the source added, “but that was after the resignation so it would be inaccurate to say McGahn briefed the President around the same time of the creation of that document (if that is the document you are referring to).”

Flynn pled guilty in federal court in Washington, D.C., on Dec. 1 of this year to felony charges of lying to the FBI. He has not been charged with violating the Logan Act.

The White House also turned over to the special counsel notes taken by McGahn and one of his deputies, James Burnham, of two meetings they had with Flynn, then-Acting Attorney General Sally Yates, and then-head of the Justice Department’s National Security Division Mary McCord on Jan. 26 and Jan. 27, according to the records and interviews.

Yates told McGahn that U.S. intelligence intercepts showed that on Dec. 29 of last year, Flynn had spoken with Kislyak on the phone and counseled him not to retaliate against economic sanctions imposed against Russia by the outgoing administration. The sanctions had been imposed by the Obama administration to punish Russia for intervening in the 2016 presidential campaign.

Yates’s concerns led McGahn to research the Logan Act and conclude it was likely that Flynn may have violated the law, according to two of the sources familiar with the matter.

During her first meeting with McGahn, Yates also warned him that Flynn was vulnerable to “blackmail” by Russia because Flynn had misled Pence and other Trump administration officials about his conversations with Kislyak, by insisting that he never spoke with Kislyak about U.S. sanctions.

Yates also told McGahn that the FBI had just recently interviewed Flynn about these matters. Yates has testified to Congress that she refused to answer questions by McGahn as to whether the FBI or anyone at the Justice Department believed that Flynn had told the truth or not. “Mr. McGahn asked me how he [Flynn] did [during his FBI interview], and I declined to give him an answer,” Yates testified to a Senate Judiciary subcommittee last May.

Nevertheless, McGahn himself and those working for him researched the federal laws regarding making false statements to federal investigators. McGahn enlisted two aides to assist him in that effort, according to records and interviews.

Despite McGahn’s concerns, Trump allowed Flynn to stay on the job for 18 days after he met with Yates. For almost nine months, the White House has said that the president did not fully understand or know of Flynn’s actions.

Trump recently tweeted that he fired Flynn for “lying to the FBI,” contradicting his earlier statements denying he knew Flynn had done anything wrong until he fired him for allegedly lying to Pence.

McGahn’s concerns that Flynn may have lied to the FBI have proved to be well founded. On Dec. 1, Flynn pled guilty in federal court in Washington that he in fact made misleading statements to the FBI to obstruct the law enforcement agency’s Russia investigation. Flynn admitted that he “made materially false, fictitious, and fraudulent statements” to obstruct the FBI investigation.

In exchange for a reduced prison sentence, Flynn had agreed to become a cooperating witness for the special counsel.

A senior administration official close to McGahn said that the White House counsel felt like the president and others in the administration at times were using him and his office as scapegoats for Trump keeping Flynn, even as serious questions arose regarding his conduct. Trump and others in the administration suggested that McGahn had not done his due diligence

Reince Priebus, then the president’s chief of staff, for example, said on Feb. 19 on “Meet the Press” that Trump did not take sooner action regarding Flynn because “the legal department came back and said that they didn’t see anything wrong.”

The records turned over to the special counsel would appear to contradict such a narrative, according to the two sources. They show that McGahn researched both statutes, clearly raised issues as to whether Flynn possibly violated federal law related to making false statements and also whether he violated the Logan Act, and that McGahn voiced these concerns to Trump after meeting with Yates.

Perjury and obstruction cases depend largely on whether a prosecutor can demonstrate the intent and motivation of the person they want to charge. It is not enough to prove that the person under investigation attempted to impede an ongoing criminal investigation. The statute requires that a prosecutor prove that the person did so with the corrupt intent to either protect himself or someone else from prosecution.

“Obstruction cases are difficult to prove unless you have tangible evidence as to what is in someone’s mind,” said John Lauro, a former federal prosecutor for the Eastern District of New York. “If Trump had any belief that Flynn had lied to the FBI” when he asked then-FBI Director James Comey to shut down the FBI’s investigation of Flynn “that might demonstrate he [Trump] acted with criminal intent.”

The timing of Trump’s efforts could also come into play.

On Jan. 27, almost immediately after McGahn’s second meeting with Yates, Trump spoke with then-FBI Director James B. Comey at the White House over dinner, during which the men were alone and Trump demanded that Comey pledge his personal loyalty to Trump. Shortly after Flynn was fired, Trump in a private Oval Office meeting pressed the FBI director to shut down the investigation of his former national security advisor, according to Comey’s account.

Comey refused to do so, and Trump fired him in May.

Update, Dec. 20, 2017: This article has been updated to provide additional comments on who conducted the research and what documents were created.

Murray Waas is an independent journalist who often writes about national security matters and law enforcement, and where the two intersect.He has worked most recently as the investigations editor for Vice, as an investigative reporter for Reuters, and as a senior correspondent for National Journal. He has also written for the New Yorker, the Atlantic, the Boston Globe, the New York Times, the Los Angeles Times, the Washington Post, Vox, Foreign Policy, the American Prospect, and numerous other publications.Waas has been a finalist for the Pultizer Prize for his reporting for the Los Angeles Times about the covert policies of the first Bush administration in the Middle East leading up to the first U.S. war with Iraq.He has been a winner of Harvard University's John F. Kennedy School's Goldsmith Prize for Investigative Reporting, a winner of the Barlett & Steele Prize for Business Investigative Reporting, and a winner of the Society of American Business Editors and Writers investigative reporting prize. Twitter: @murraywaas