Has President Trump Been Lying to the American People about the Flynn/Kislyak Phone Call?

Last week we detailed the saga of Michael Flynn and his various alleged transgressions.

Today, we’ll dive deeper into the aftermath of that fateful December 29, 2016 call between Flynn and Russian Ambassador Sergey Kislyak.

We make the case that, based on publicly available evidence, President Trump likely (i) instructed Michael Flynn to discuss sanctions with Kislyak and urge the Russian government not to retaliate against U.S. sanctions, and (ii) lied to the American people about it.

If our conclusion is correct, the Flynn/Kislyak call may be remembered as President Trump's Watergate break-in: a seemingly innocuous incident whose aftermath unraveled a presidency.

Some Brief Background

On December 29, 2016, then-incoming National Security Adviser Flynn had a phone call with Russian Ambassador to the U.S., Sergey Kislyak. On the call, the two discussed sanctions that the Obama administration was planning to place on Russia for its meddling in the 2016 U.S. elections.

Intelligence officials have reported that during the call, Flynn urged Russia not to retaliate against the sanctions because retaliation could harm the relationship between the two countries. On the day of the call, the Obama administration in fact imposed additional sanctions on Russia.

It would have been illegal for Flynn to discuss sanctions on the call with Kislyak, as he had not yet become a government official. Under the Logan Act, it is illegal for unauthorized private citizens to negotiate with foreign governments on behalf of the U.S. Flynn also denied that the subject of sanctions ever came up on the call.

The Justice Department notified the White House in late January 2017 that despite Flynn's denials, Flynn had in fact discussed sanctions with the Russian Ambassador, and the Justice Department viewed this as a serious problem. 18 days passed between the day the Justice Department notified White House officials that Flynn had discussed sanctions with Kislyak, and the day Flynn resigned as National Security Adviser.

Trump’s (Non) Reaction to Finding Out About Flynn’s Call

During the 18-day interim, there is no evidence that the Trump administration took action against Flynn. In fact, during these 18 days, the administration continued to deny that sanctions were discussed on the call, and Flynn continued to participate in meetings and calls relating to his role as National Security Adviser.

After Flynn resigned, Trump stated Flynn had “been treated very, very unfairly by the media,” and had been undermined by leaks. Trump has continued to back Flynn up ever since, both publicly and privately.

Like Nixon 40 years before him, Trump simultaneously denied any knowledge or responsibility for the incident (in this case, the Kislyak call), and insisted that the real problem was the leaking to the press.

The nonchalant manner in which Trump reacted to the briefing by the Justice Department, and the respectful way he has treated Flynn ever since, indicates that Trump may have known, and even instructed, Flynn to discuss sanction matters with Kislyak.

Trump Denied Asking Flynn to Discuss Sanctions, But It's a Bad Lie

President Trump (and many of his supporters) often use the following pattern to justify his actions and rhetoric:

First, Trump will deny that he said or did something (often blaming the “Fake News”). Then, once that thing is confirmed to have occurred, he'll claim that there was nothing wrong with saying or doing that thing.

We saw this pattern on display in Trump's press conference that followed Flynn's resignation. In the press conference, Trump denied asking Flynn to discuss sanctions with Kislyak, but in the same breath insisted that it would not be inappropriate had he done so. Take a look at the transcript:

“QUESTION: Did you direct Mike Flynn to discuss sanctions with the Russian ambassador

TRUMP: No, I didn't.

TRUMP: Mike [Flynn] was doing his job. He was calling countries and his counterparts. So, it certainly would have been OK with me if he did it. I would have directed him to do it if I thought he wasn't doing it. I didn't direct him, but I would have directed him because that's his job.”

Notice that Trump said that if Flynn hadn't discussed sanctions with Kislyak, Trump would have directed him to discuss sanctions. In this exchange, Trump admits that at a minimum, he thought Flynn was discussing sanctions with Kislyak. After all, if that were not the case, then Trump would have asked Flynn to discuss sanctions, which he denies he did.

It's a bit complicated to parse, but Trump's answer, if we take it literally, proves that Trump knew of Flynn's discussions of sanctions with Kislyak before the Justice Department informed the White House.

Whenever Trump says something like "I didn't do X but even if I did it would have been perfectly appropriate", it's fairly obvious that he in fact did do X. Why else would he insist that something he didn't say or do would have been appropriate?

Trump's statement regarding the Flynn call is less explicit than Nixon's infamous assertion that "[w]hen the President does it, that means that it is not illegal", but the implications of both statements are the same: they did it.

The White House Has Been Careful Not to Claim That Flynn Misled Trump—Only Pence

Trump has never said that Flynn misled him. In the press conference following Flynn’s resignation, Trump explained that he “fired [Flynn] because of what he said to [Vice President] Mike Pence.”

Flynn has also framed the issue as a breach of trust between him and Pence, not Trump. In his resignation letter, Flynn explained that “[u]nfortunately, because of the fast pace of events, I inadvertently briefed the vice president-elect and others with incomplete information regarding my phone calls with the Russian ambassador.”

If Trump didn’t know that sanctions were discussed on the call, why would he say that Flynn misled Pence but not that Flynn misled Trump? Why would Flynn not mention his misleading of Trump? By framing Flynn’s resignation as a result of a breach of trust between Flynn and Pence, Trump and Flynn implicitly acknowledged that Trump knew Flynn discussed sanctions, and that Trump himself didn’t find out anything new when the Justice Department briefed the White House about the call.

That Flynn misled Pence but not Trump also explains Trump's forgiving attitude towards Flynn. Of course Trump wasn't angry at Flynn for lying about his call with Kislyak—Trump wasn't the one who was lied to!

Trump’s Response to Russia’s Non-Response Indicates He Had Knowledge of Flynn’s Actions

On December 30, 2016, a day after the Obama administration announced new sanctions on Russia, the Putin government announced that Russia would not retaliate. The announcement surprised Obama administration officials, who viewed the decision as totally out of character for the Russian government.

The same day, Trump tweeted praise for the Russian government’s non-response:

“Great move on delay (by V. Putin) - I always knew he was very smart!”

Would Trump have reacted this way if he didn't know that Flynn discussed this exact topic with Kislyak? It looks fairly obvious that Trump was not-so-subtly praising Putin for listening to Flynn’s recommendation not to retaliate. Trump has a habit of praising the character of people that agree with him and have listened to what he says: Instead of saying “that was a good move on your part”, he’ll say something like “that shows how smart and good you are”. It looks like Trump did the same thing with Putin here. This tweet simply doesn't make sense unless Trump had previously urged the Russian government not to respond.

Conclusion

As detailed above, there is significant evidence showing that then President-elect Trump instructed Flynn to urge the Russians not to respond to sanctions placed by the Obama administration.

This conclusion is based on an analysis of publicly-available information, but we don't yet know for sure what Trump knew and when he knew it. One of the central tasks of the investigation into potential Trump-Russia ties is to get to the bottom of this issue.

If it's in fact proven that Trump instructed Flynn to discuss sanctions with Kislyak, this illegal act, combined with the administration's repeated lies about it and attempts to quash the investigation into it, clearly amounts to an impeachable offense.

Will December 29, 2016 be remembered as prominently as June 17, 1972? Only time will tell.