The Mueller Team’s Latest Charges In the Russia Investigation Follows the Money Trail to One of America’s Largest Law Firms

Special Counsel Robert Mueller’s Office filed another important criminal charge yesterday (February 20, 2018) as part of its investigation of Russian interference in the 2016 election. These charges are being brought against attorney Alex Van Der Zwaan, who is scheduled to plead guilty later today for lying to the FBI about a conversation he had with Rick Gates, Trump’s Deputy Campaign Chairman. The conversation with Gates was about the work that Van Der Zwaan and his law firm, Skadden Arps, Slate, Meager and Flom, were doing in Ukraine for the pro-Russian regime of then-President Viktor Yanukovich.

Van Der Zwaan, who worked out of the Skadden Arps London office until he was fired last year, was part of that law firm’s legal team that was hired at the behest of Paul Manafort, a senior advisor to the Yanukovich regime and his pro-Russian party during 2011 and 2012, who then went on to become Trump’s Campaign Chairman in 2016.  Skadden Arps was hired by the Ukraine government to counter the adverse publicity that the Ukraine government was receiving over its arrest and prosecution of Yulia Tymoshenko, the former Prime Minister of Ukraine who lost the presidential election to Yanukovich in 2010.

Immediately after taking office, Yanukovich directed that a politically-motivated investigation be conducted into Tymoshenko’s handling of a natural gas deal between Russia and Ukraine, leading to her arrest, incarceration and prosecution on baseless trumped-up political charges in 2011.

When an international storm of protest erupted, and with the U.S. government, the European Union and human rights groups calling for Tymoshenko’s immediate release, Manafort and Gates convinced the Ukraine government to hire the Skadden Arps firm to counter this adverse publicity and to lend an air of respectability to the government’s relentless and unfounded prosecution of Tymoshenko, who by this time was in urgent need of specialized surgery in Germany to relieve a painful back condition. However, the Yanukovich regime steadfastly refused to permit her to travel to Germany for the operation.

Manafort and Gates orchestrated the retention of the Skadden Arps team for the ridiculously low contract amount of $12,000 in order to keep the contract just below the threshold requirement under Ukraine law for the public bidding of all government contracts.

Since I was Ms. Tymoshenko’s U.S.-based attorney at the time, I helped her Ukraine-based legal team to calculate the actual legal fees and expenses that Alex Van Der Zwaan and the other members of the Skadden Arps team were incurring for their frequent trips to Kiev, where they stayed at expensive hotels and dined at expensive restaurants while they were being led around Ukraine by Manafort, Gates and their pro-Russian cronies as part of their so-called investigation. We estimated that the law firm must have been paid at least $1-2 million for its legal services in preparing their “whitewash” report, which unsurprisingly concluded that there was some legitimate basis for the Tymoshenko prosecution and that it was not (at least not completely) a political hit-job by Manafort, Gates and the Yanukovich Regime they were working for.

When we turned the results of our investigation into the missing $1-2 million in payments over to the FBI and Department of Justice prosecutors, they apparently incorporated this  information into their larger money laundering and influence-peddling investigation of Manafort and Gates, which led to the recent charges that Manafort and Gates used an offshore account to  “funnel $4 million to pay secretly for the report” supporting Tymoshenko’s conviction. The work was revealed in last year’s indictment of Manafort and Gates, in which prosecutors asserted that the two men lobbied members of Congress and their staffs about Ukraine, including the issue of whether Yanukovych had a legitimate basis for imprisoning and prosecuting his political rival, Yulia Tymoshenko.

The pubic release of the charges against Van der Zwaan signals that the Special Counsel’s office has reached  plea agreements with both Van der Zwaan and Rick Gates, and that both of them are cooperating with the continuing investigation into the both Manafort and Gates’ work for the pro-Russian Ukrainian President, as well as their continuing work for the pro-Russian Ukrainian political party even after Yanukovich was forced to flee Kiev for the safety of Moscow in March of 2014 during the Maidan Revolution in Ukraine.

The results of this investigation should answer the longstanding question as to why then-Candidate Trump hired Manafort and Gates to head up his Presidential Campaign in the summer of  2016, knowing how closely affiliated they were with pro-Russian interests in Ukraine. The recent charges and plea agreements should also substantially advance the ongoing Mueller investigation on many fronts, including the question of whether it was Trump himself who directed Manafort and Gates to water down the Ukrainian plank in the party platform at the Republican National Convention. This revision of the Republican platform eliminated the call for the U.S. to send defensive military equipment to the beleaguered Ukraine government, which was facing the annexation of Crimea and a Russian-incited rebellion in eastern Ukraine.

One thing is clear: there is much, much more to come from the Special Counsel’s office.

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

SPECIAL COUNSEL MUELLER IS CONSIDERING WHETHER TO INDICT TRUMP FOR OBSTRUCTION OF JUSTICE, AND HE SHOULD DO SO

As the Special Counsel’s investigation picks up steam, with the indictments of Paul Manafort and Rick Gates already filed and the guilty pleas with now cooperating witnesses Michael Flynn and George Papadopoulis publicly disclosed, Mueller’s team has amassed a wealth of information regarding President’s heavy-handed attempts to obstruct justice.

The avalanche of damning evidence of Trump’s obstruction of justice started with the firing of FBI Director James Comey on May 9, 2017 after direct attempts by Trump failed to extract from Comey a pledge of loyalty and a commitment to drop the FBI’s investigation of his former National Security Advisor Michael Flynn. There is also evidence that Trump pressured Director of National Intelligence Dan Coats to urge Comey to end his investigation into Flynn and his Russian connections, which was eerily reminiscent of former President Nixon’s attempt to use the CIA to derail the FBI investigation into Watergate and which ended up being included as part of the Articles of Impeachment against Nixon.

Despite the White House’s initial disinformation campaign to persuade the public that Comey was fired for other legitimate concerns, Trump could not resist telling NBC’s Lester Holt during a live interview on May 11, 2017 — two days after the firing — that Comey’s firing was due to “the Russia thing.”

If there was any doubt whatsoever that Trump fired Comey in order to try to quash the FBI’s and the Justice Department’s investigation of possible collusion between the Trump Campaign and Russian intelligence operatives to interfere with the 2016 election and to swing it in Trump’s direction, those doubts were dispelled when Trump told Russian Ambassador Sergey Kislyak and Sergey Lavrov, the Russian Foreign Minister, in the Oval Office on May 10, 2017,  the day after the firing of the FBI Director, that he had discharged “Nut Job” Comey in order to take “pressure” off the Russian investigation. Only Trump, the two Russian officials, and a Russian news representative were permitted to be in the Oval Office during this critical discussion, which also involved the disclosure of highly sensitive and classified information that the U.S. had obtained from Israeli intelligence about the Islamic State.

Two months before he fired Comey, Trump ordered White House Counsel Don McGahn to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation, saying that he needed Sessions to provide active oversight over the Russia investigation in order to “protect him” and “safeguard” him. Mueller can persuasively argue that the only possible reason why Trump would be so desperate for Sessions to “protect” him was that Trump had something to hide from the federal prosecutors, and that he was desperately afraid that the investigation would lead into troubling areas regarding the underlying “collusion” investigation, or into collateral areas such as the Trump Organization’s heavy reliance on Russian money of suspicious origin in possible violation of U.S. money laundering laws.

After Comey was fired and replaced by Deputy FBI Director Andrew McCabe, who corroborated Comey’s testimony regarding Trump’s repeated requests for a “loyalty oath” from Comey, Trump pressured FBI Director Christopher Wray to fire McCabe, causing Wray to threaten to resign, according to news reports. Trump continued to berate McCabe in a barrage of twitter rants, until McCabe finally capitulated and announced his abrupt and early retirement from the FBI.

Trump is also reported to have ordered White House Counsel McGahn to fire Special Counsel Mueller, only to back down – at least for the time being- when McGahn threatened to resign.

The question being pondered by the Special Counsel’s office is what to do with all of this evidence of criminal obstruction of justice by Trump himself. Although the Justice Department issued two legal opinions in 1973 and 2000 during the investigations of Presidents Nixon and Clinton, concluding that a sitting President could not be indicted, there is nothing in the U.S. Constitution itself that explicitly says that. All that the Constitution says about the prosecution of the President is that, in Article I, Section 3, he (or she) is subject to prosecution after being impeached by the House of Representatives, and then convicted and removed from office by a two-thirds vote of the Senate.[1] It is silent on the issue of whether a President can be indicted before being impeached, or whether the two proceedings can take place simultaneously.

Legal memos prepared in 1973 for the Watergate Special Prosecutor and for Kenneth W. Starr, the Independent Counsel investigating allegations against President Clinton, reached the conclusion that a sitting President could be indicted if the evidence warranted it, which put both of these special federal prosecutors at odds with official Department of Justice policy.

Special Counsel Mueller, in consultation with Deputy Attorney Rosenstein, may well decide that the evidence of President Trump’s violations of the criminal obstruction of justice statutes is so compelling that the Grand Jury should be asked to return an indictment against him. President Trump’s lawyers will make an inevitable motion to dismiss the indictment on constitutional grounds, and that question will then finally have to be decided by the U.S. Supreme Court.

In the alternative, if the Special Counsel merely ask the Grand Jury to issue a Report laying out the evidence against President Trump, or name President Trump as an unindicted co-conspirator in an Obstruction of Justice indictment, then they will be violating the sacred principle that “No man is above the law,” even a sitting President. Passing the buck to Congress to consider impeachment of the president is not a good option, since impeachment is, at its core, a political decision as to whether a sitting president who has demonstrated that he is unfit to fulfill the duties of the office should be allowed to complete his term or not. That decision (whether to impeach or not) may have little or nothing to do with the issue of whether a president has violated the criminal laws, and whether he should be prosecuted for violations of those laws “without fear or favor,” just like every other citizen.

[1] Article 1, Section 3 states: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

TRUMP’S LAST-DITCH TO OBSTRUCT JUSTICE IS ALREADY IN MOTION: THE FIRING OF JEFF SESSIONS AND ROBERT MUELLER

The nation seems transfixed by the recent revelations in the book Fire and Fury about President Trump’s lack of mental competence and fitness to serve as President, but other than a few juicy tidbits – such as the fact that Trump likes to dine at MacDonalds because the food is pre-prepared and therefore less likely to be poisoned – there is really nothing new here. The fact that Trump is monumentally unfit and unprepared to carry out the duties of the Presidency has been plainly apparent to even the most casual of observers since Inauguration Day, when he gave his bizarre “American Carnage” speech and declared that the crowd size was “the largest ever.”

This is all very entertaining, but not terribly newsworthy. What does qualify as news, however, is the fact that amid this “witches brew” of chaos and controversy, the embattled White House appears to be starting a roll-out of its “nuclear option,” which is to try to stop the Special Counsel’s Russia investigation in its tracks by firing Attorney General Jeff Sessions, Deputy Attorney General Rob Rosenstein, and then Special Counsel Robert Mueller himself.

Trump may be crazy like a fox. Realizing that Muller has him in his cross-hairs, with Flynn and Papadopoulos cooperating with him, and Muller now having conclusive evidence that Trump himself drafted the fake story while returning from Europe on Air Force 1 about Don Jr.’s meeting with the Russians in Trump Tower on June 9, 2016, The Trump Team must be now painfully aware that the jig is up. Mueller now has enough evidence to make an Obstruction of Justice case against Trump, and probably also has enough to establish that senior members of the Trump team –if not Trump himself – colluded with the Russians to successfully interfere with the 2016 presidential election. We know this because there is now sufficient public evidence of this in press reports, and it can be safely assumed that about 70% of what Mueller knows about Trump’s collusion and obstruction efforts has not yet been made public.

The only way to stop the Mueller investigation and the additional indictments and plea agreements that are expected to be rolled out over the next couple of months is for Trump to try to blow up the entire process, just as embattled President Nixon tried to do with the October 1973 “Saturday Night Massacre” firing of Special Prosecutor Archibald Cox and the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus.

To be sure, Trump and his remaining close advisors must realize that this is a longshot “Hail Mary” pass, which marked the beginning of the end for the Nixon Presidency, but he is rapidly running out of options. We know by now that he is temperamentally and emotionally incapable of just patiently waiting for the next shoe to drop from Mueller’s office, which could be an indictment of Jared Kushner, Don Jr. or other senior staff members or close family members, or he could just decide to roll the dice and either stop the Russia investigation in its tracks or go up in flames trying.

The expression “going nuclear” may not be a euphemism, now that Trump is in a name-calling contest with the equally unstable leader of North Korea over who has the biggest nuclear button. There has always been a persistent “Wag the Dog” theory that when the going gets tough for a President, then the best option is to start a war to distract the public’s attention from other issues, such as scandal at the White House. However, never before has anyone hinted or even considered that a President would literally use the nuclear option to get himself out of a jam. With Trump, however, everything has changed. Who can say with confidence that Trump will never push the “nuclear button” just to create a distraction from the Mueller investigation? No one, you say? I thought so.

 

But first the “political nuclear option.” On Thursday, two top House conservatives —  Rep. Mark Meadows of North Carolina, the chairman of the conservative House Freedom Caucus, and Rep. Jim Jordan of Ohio, who sits on the House Judiciary Committee – called for Attorney General Jeff Sessions to resign. The Republican drumbeat for Sessions to step aside will undoubtedly intensify over the next several days, with the White House no doubt issuing statements to the effect that Sessions should never have accepted the job in the first place if he knew that he would have to recuse himself from supervision over the Russia investigation. Fox News and Devin Nunes, or some other White House loyalist, can also be counted on to make seemingly high-minded statements about the Justice Department being in “chaos” and that there is an urgent need for change in leadership so that an new Attorney General can “take back control” of the Department and make sure that the Special Counsel’s investigation does not “go off the rails” by investigating matters that were never intended to be investigated (such as the Trump Organization’s finances and massive Russian funding).

Even though watching the Trump White House’s attempt to undermine and then terminate Mueller’s Russia investigation will be much like watching a massive car wreck unfold in slow motion, the country must prepare itself as best as possible, just as we would if a huge tsunami were approaching. To paraphrase a recent statement by Rep. Elijah Cummings, this is truly a battle for the soul of our democracy. When the dust settles, there will be no innocent bystanders. Every citizen must now choose a side, and your children and grandchildren will be asking: “Which side were you on?”

IN PRAISE OF THE “DEEP STATE” JUSTICE DEPARTMENT

On Tuesday, President Trump started the new year off with a bang with a Twitter attack against the “Deep State” Justice Department. In attacking his own Justice Department, Trump was using code words (“deep state”) often used by right-wing conspiracy theorists to describe the permanent liberal cabal of government employees that is entrenched deep within the federal bureaucracy, which they believe are resisting Trump’s efforts to root them out and bend all of the federal agencies to his will.

Last week, Trump went so far as to assert during a New York Times interview that he had the “absolute right to do what I want to do with the Justice Department.” Sorry, Mr. Trump, you do not. That is not how the federal system works – at least not for the past 135 years.

The vast majority of FBI and other Justice Department employees are career law enforcement agents and attorneys who have been selected for their posts based upon merit, not on their party affiliation, connections or political ideology. Indeed, the U.S. Civil Service System dates back to 1883 and is designed to eliminate the ability of elected officials and political party operatives to decide who works for the federal government.

To be sure, the upper echelons of both the Justice Department and the FBI are White House political appointees, including FBI Director Christopher Wray, Attorney General Jeff Sessions, and Deputy Attorney General Rob Rosenstein. However, beneath this upper crust, all Justice Department employees are hired based solely on their abilities and their merit, working diligently at their jobs without political interference or fear of retribution.

However, this does not mean that Justice Department employees cannot hold political opinions, vote, or make contributions to political candidates. Indeed, as Deputy AG Rosenstein recently explained to a Congressional committee, the political opinions and party affiliation of candidates for Justice Department positions are not taken into account in the hiring process. To do so would be a violation of the law. Under the 1978 Civil Service Reform Act, the “selection and advancement” for federal positions is “determined solely on the basis of relative ability, knowledge, and skills.” Nor, as Rosenstein has pointed out, can the Justice Department fire an employee for expressing personal political views, which is protected by the First Amendment, although the FBI did recently reassign FBI agent Peter Strzok from the Special Counsel’s Trump/Russia investigation to other duties when text messages by him that were disparaging of Trump were made public. Even though there is no evidence that such personal views by Agent Strzok influenced his professional work, his reassignment was entirely proper in order to avoid the appearance of impropriety or bias.

Trump appears to be persisting in his efforts to quash the Justice Department’s investigation of his team’s dealings with the Russians, even though those efforts have backfired to date. First, he tried to cajole then-FBI Director Comey into dropping the investigation of former NSA Michael Flynn’s Russia contacts during the campaign and the transition period. When Comey balked, Trump simply fired him. This strategy, however, had the unintended consequence of triggering the appointment of Robert Mueller as Special Counsel and an intensification of the investigation.

Trump has also bitterly criticized Attorney General Jeff Sessions for having recused himself on the Russia investigation, but Sessions, to his credit, has more or less stuck by his guns and refused to be pressured into resigning.

Now Trump’s allies in the press and in Congress have intensified their efforts to discredit and undermine the FBI and the Special Counsel’s office in the eyes of the public.  One of Trump’s opening salvos attacked the FBI as supposedly being in “tatters” and therefore not worthy of public respect.  By vowing to restore the FBI to its former glory, or making it “greater than ever,” it seems likely that Trump is laying the groundwork for a possible firing of Mueller or, at the very least, indelibly tainting the Russia investigation as a partisan “witch hunt.” If he succeeds in this effort, then he will be inoculated, he hopes, from the fallout of any additional indictments or plea agreements with present and former members of the Trump team, which could then be dismissed as further evidence that the “deep state” is engaged in a slow-rolling “coup ” to oust Trump from the White House.

Trump’s campaign to undermine and dishearten the FBI appears to have been at least partially successful, since FBI Deputy Director Andrew McCabe, who has been one of the specific targets of the well-orchestrated assault on the FBI’s credibility, has announced that he will be retiring soon, even though he is only 49 years old. The FBI’s top lawyer, James Baker, was also abruptly reassigned last week.

If the Trump Administration and its allies continue on this course unopposed, they will have carried out their own “coup,” which will involve the politicization of the Justice Department for the first time in modern history, and the end of the Justice Department’s proud history of professionalism and political independence. The stakes could not be any higher.

TRUMP’S NOMINEE FOR FBI DIRECTOR WORKS FOR A LAW FIRM REPRESENTING ONE OF RUSSIA’S LARGEST NATIONAL OIL COMPANIES: CAN HE REALLY BE COUNTED ON TO OVERSEE A VIGOROUS INVESTIGATION OF POSSIBLE COLLUSION BETWEEN RUSSIA AND THE TRUMP TEAM?

On paper, Christopher A. Wray appears to be an excellent choice to serve as the next FBI Director. As a Yale Law School graduate and executive editor of the law review, as well as a law clerk to a federal judge, Wray seems to have the impeccable academic credentials to oversee the country’s chief law enforcement and investigative organization.

Wray also has had a long and distinguished career as a federal prosecutor and high-level official of the U.S. Department of Justice under President George W. Bush, where he led the successful federal investigation of Enron Corp. The FBI has referred to the work of the Enron Task Force as the “largest and most complex white-collar investigation” in the agency’s history.

After 9/11, while serving as Assistant Attorney General, the Department of Justice came under criticism for its attempts to legally justify the use of enhanced interrogation techniques such as “waterboarding,” which many experts viewed as the equivalent of torture. No doubt the Senate Committee reviewing Wray’s credentials will properly delve into Wray’s views on this subject and possible participation in the decision-making process at the Justice Department that led to the “sign off” on the use of such techniques.

As a litigation partner with the prestigious Atlanta and the Washington-based law firm of King & Spalding, Wray also caused more than a few eyebrows to be raised as a criminal defense lawyer for Governor Chris Christie during the “Bridgegate” investigation. When close associates of Christie were indicted for ordering the closing of some of the lanes leading to the George Washington Bridge in retaliation for perceived “failure” of the Mayor of Ft. Lee, New Jersey to support Christie in his last run for New Jersey Governor, the defense lawyers persistently demanded to see Governor Christie’s cell phone and phone records. Christie apparently used this cell phone to text with others during a key state hearing into Bridgegate, and the phone was even studied during a probe that Christie commissioned into the affair. However, this key phone went “missing” thereafter for an extended time period, until it mysteriously turned up in the possession of Christie’s lawyer – Christopher Wray. This is another subject that is likely to come up during Wray’s Senate confirmation hearing.

Even more troubling is the fact that Wray’s law firm – King & Spaulding – boasts on its website that it represents Rosneft, one of Russia’s largest state-controlled oil companies. http://www.kslaw.com/imageserver/KS.

Rosneft was prominently mentioned in the now infamous 35-page Dossier prepared by former British MI-6 agent Christopher Steele. The Dossier claims that the CEO of Rosneft, Igor Sechin, offered candidate Donald Trump, through Trump’s campaign manager Carter Page, a 19% stake in the company in exchange for lifting U.S. sanctions on Russia. The dossier claims that the offer was made in July while Page was in Moscow. Ironically, the Dossier goes on to allege that, by mid-October 2016, when Sechin and Rosneft came to the conclusion that Trump was unlikely to win the Presidential election, Sechin “put feelers out to other business and political contacts” to purchase a stake in Rosneft.

By strange (or not-so-strange) coincidence, Rosneft ended up selling a 19.5% stake in the company on December 7, 2016 — worth approximately $11 billion — to Qatar’s state-owned wealth fund, commodity trader Glencore Plc and an unidentified Cayman Islands firm, which the owners of are also unnamed.

In 2012, Rosneft and Exxon had arranged for a $500 billion oil drilling joint-venture, which was nixed by President Barack Obama when he imposed the 2014 sanctions that crippled Russia’s ability to do business with U.S. companies. Secretary of State Rex Tillerson was the CEO of Exxon at the time. The lifting of sanctions by the Trump Administration would enable Exxon to renew its joint venture agreement with Rosneft, and presumably the law firm of King & Spalding would end up in the middle of the contract negotiations between those two companies, as well as Rosneft’s negotiations with other U.S. companies who would be joining the stampede to do business with the Kremlin and its many other state-owned enterprises.

If Wray was confirmed as the FBI Director, would he have to recuse himself with regard to the FBI’s critical role in the investigation currently being conducted by Special Counsel Robert Mueller? The FBI is supplying most of the investigative resources that Mueller must rely upon to properly conduct his investigation. Without an FBI Director who is 100% behind Mueller’s investigation into meddling by Russia in the 2016 investigation and possible collusion with the Trump Team, as well as allegations that this collusion was covered up, the entire independent investigation could be placed in jeopardy. Similarly, if despite his law firm’s connections with a key Russian-owned company, Wray refused to recuse himself from the Russia-Trump investigation, a serious cloud could be cast over the FBI’s level of commitment to this critical matter.

One of several reasons why former Senator Joe Lieberman was generally considered to be unqualified for the FBI Director’s job was that his law firm – Kasowitz, Benson, Torres – has represented Trump for many years, including the handling of Trump’s lawsuit against journalist Tim O’Brian, author of “Trump Nation,” who had the audacity to write that Trump was only worth $250 million, not the billions he claimed. In other words, the nomination of Lieberman as FBI Director would have been perceived as the installation of a pro-Trump advocate in the middle of the Trump-Russia investigation, rather than the selection of a dispassionate objective leader to oversee the investigation.

Similarly, the nomination of Wray as FBI Director raises serious questions as to whether Wray – given his law firm’s affiliation with Rosneft – would be perceived as an attempt by Trump to install a “Russia-friendly” Director at the helm of the FBI.

JARED KUSHNER HAD CLOSE BUSINESS TIES WITH RUSSIA LONG BEFORE HE MET WITH THE RUSSIAN AMBASSADOR

The media is understandably fascinated by the revelation that Jared Kushner and Michael Flynn met with Russian Ambassador Kislyak at Trump Tower on December 1 or 2, 2016 (the White House has been rather vague as to the exact date). Apparently neither Kushner nor Flynn disclosed the meeting on their security clearance forms. Both of them have a lot of explaining to do. Not only was the meeting undisclosed, but the alleged reason for the meeting was highly unorthodox. According to an intercepted communication between the Ambassador and the Kremlin, Kushner had requested that the Russians give him access to a backchannel communications facility at the Russian embassy. His apparent intent was that he wanted to communicate directly with Moscow, free from the prying eyes and ears of the FBI and U.S. intelligence agencies.

It also recently has been disclosed that Kushner had another undisclosed meeting during the Transition period with Sergey Gorkov, a KGB graduate and head of Vnesheconombank (VEB), the Russian state-owned bank that has been subject to U.S. sanctions. This bank has also been linked to Russian spy operations in the U.S.

While Kushner’s apparent level of trust in the Russians demonstrated by his meeting with Kislyak and Gorkov may be surprising, it was not completely unexpected. Kushner has strong business relationships with Russian individuals and companies tied to Russia and Vladimir Putin. In some cases, these relationships have been in place for many years.

In May 2015, Kushner’s real estate company paid $295 million for the majority share in the former New York Times Building on West 43rd Street in Manhattan as part of a deal with Lev Leviev, the Uzbek-Israeli “King of Diamonds” with close ties to Vladimir Putin. Leviev serves as chairman of Africa Israel Investments Ltd., which has a Russian subsidiary, AFI Development PLC, a public company traded on the London Stock Exchange which is one of the largest real estate development companies in Russia. Leviev is also chairman of the Federation of the Jewish Communities of the CIS (former Soviet republics), and is closely associated with Rabbi Berel Lazar, the Chief Rabbi of Moscow who is often referred to in the Jewish press as “Putin’s rabbi.”

In November 2014, Kushner and his brother Joshua also formed a real estate investment company – Cadre – which attracted substantial venture capital from Russian high-tech billionaire Yuri Milner. As founder of the investment firms Digital Sky Technologies (now called Mail.ru Group) and DST Global, Milner’s net worth went from zero to $12 billion in two years as a result of his investments in Facebook and other social media platforms. Milner also owned the largest Internet providers in Russia and elsewhere in eastern and central Europe.

Other Russian and Chinese investors who invested in Cadre and other Kushner companies were rewarded with U.S. visas as part of the EB-5 program. The program gives investors putting at least $500,000 into American companies a two-year visa and a pathway to U.S. citizenship.

Kushner and his wife, Ivanka, are also close friends with Russian billionaire and Putin crony Roman Abramovich and his wife, Dasha Zhukova. Ivanka invited her close friend Dasha to the Trump Inauguration in January 2017, and they have been frequently spotted together at the U.S. Open tennis tournament and other events.

Abramovich, who is perhaps best known as the owner of the legendary Chelsea Soccor club in London, was reported by BBC to have given a $35 million yacht to Putin as a “gift.” Abramovich is also the Chairman of the Board of Trustees Federation of Jewish Communities in Russia (FJCR), which is a major supporter and ally of President Vladimir Putin within Russia.

Abramovich has a one-third interest in Evraz PLC, one of the world’s largest steel manufacturing companies. Through one of its Canadian subsidiaries, Evraz supplied about 40% of the steel used for the construction of the controversial Keystone XL pipeline in North Dakota.

One of Trump’s first actions in office was to sign an executive order expediting the approval of the Keystone pipeline. Construction of the pipeline had been halted by the Obama Administration in November 2015 based on environmental and other concerns. One of Trump’s campaign promises was to reverse this Obama order and to finish construction of the pipeline. Owned by TransCanada, the pipeline is intended to move Canadian tar sands oil southward through the Dakotas to Illinois, Oklahoma, and Texas. On January 24th, Trump also signed another executive order requiring that the steel for all U.S. pipelines had to be made in the U.S. to the “maximum extent possible.” Two days later, TransCanada filed a presidential permit application for the Keystone pipeline with the U.S. Department of State, which was granted.

Ironically, much of the steel to be used for the Keystone pipeline had already been manufactured outside the U.S. by Abramovich’s company Evraz, and was sitting in a field in North Dakota waiting to be used once Trump “green lighted” the project. Evraz had lobbied heavily against provisions that would have mandated that all of the Keystone steel be made in the U.S., and they got their wish when Trump’s executive order contained enough “wiggle room” to ensure that all of Evraz’s foreign manufactured steel was used on the pipeline. Just to be doubly sure, Trump spokesperson Sarah Huckabee Sanders announced on March 3, 2017 that Trump’s executive order requiring that U.S. steel be used on U.S. pipelines only applied to new pipelines, not those already under construction. This “clarification” meant that the Keystone pipeline was completely exempted from the executive order.

In March 2017, Jared, Ivanka, and their family took a ski vacation to Aspen, Colorado. There were some grumbling emanating from the White House to the effect that Kushner, as one of Trump’s senior advisors, should not have been off skiing in Aspen while Trump’s health care  agenda was going up in flames in Congress.

As it turned out, however, Kushner’s trip to Aspen was not completely a vacation. Roman Abramovich and his wife just happen to own a chalet in Aspen, and the two couples just happened to arrive in Aspen on the same day (March 18th). Although there were no photographs of the two families together in Aspen, it is reasonable to assume that – given the closeness of the relationship between the two families – Jared and Roman found some quality time together to close the Keystone pipeline steel deal and cover other business matters of mutual interest.

Thus Kushner, like his father-in-law, has a longstanding history and close affinity for Russian oligarchs who operate within Putin’s inner circle. At the same time, Kushner has had a longstanding suspicion (if not outright hostility) to federal law enforcement agencies and the media who, in his view, hounded his father out of the family business and into prison. It must have seemed perfectly natural, therefore, for Kushner to want to communicate directly with the Russians, out of sight from the media and unfettered by federal law enforcement/intelligence agency “interference.”

 

THE KUSHNER-FLYNN “BACKCHANNEL” LINK TO PUTIN AND HIS RUSSIAN COHORTS WAS PART OF THE PLAN FROM THE BEGINNING, NOT THE PRODUCT OF SOME NAÏVE IMPULSE OR “CRAZY IDEA”

Some commentators have concluded that the extraordinary proposal by Jared Kushner and Michael Flynn to Russian Ambassador Kislyak made on December 1 or 2, 2016 at Trump Towers must have been either “naïve” or “just a crazy idea.” It was neither.

The proposal hatched by Kushner and Flynn – to establish a backchannel communications network with Moscow using the secure facilities at the Russian embassy or consulate — was part of a carefully thought out plan that Flynn had been working on for months, and with which Kushner was in full agreement.

Both Kushner and Flynn viewed the U.S. intelligence community – and indeed all U.S. law enforcement agencies and virtually the entire federal government – with deep suspicion, if not animosity. Conversely, they both viewed Russia as their friend and ally, not as a hostile foreign power. They each had their own different personal, ideological and business reasons that led them to this same startling conclusion, but they both ended up in the same place nonetheless: in a room with the Russian Ambassador discussing a scheme to deceive and circumvent the entire U.S. intelligence/law enforcement apparatus.

President Obama had fired Flynn as the Director of the Defense Intelligence Agency (DIA) after Flynn had shown an alarming degree of coziness with Russian intelligence services, particularly the FSB, for the ostensible reason of trying to enlist Russian cooperation in the fight against ISIS in Syria and elsewhere. Flynn spent a day at FSB headquarters in Moscow and otherwise started to act as if the Russians were our closest friends, not a hostile power on which we had imposed highly restrictive sanctions after carving off a large slice of Ukraine for itself and otherwise threatening the peace and tranquility of most of Eastern Europe. Flynn just didn’t get it, and so he had to be sacked.

Unrepentant, Flynn flouted the law by accepting a paid speaking engagement at a Russian dinner sponsored by RT (Russia Today), Russia’s primary state-sponsored propaganda outlet, and dining with Putin himself. He also accepted fees from at least one other Russian company within Putin’s inner orbit, without getting prior approval from the U.S. Defense Department, as was required for any retired U.S. military personnel.

But it wasn’t just about the money for Flynn, although the Russian cash was a nice supplement to his modest military pension. One way or the other, Flynn had come to the world view that Russia, as a primarily Christian nation, was America’s greatest potential ally in what he considered to be the developing apocalyptic battle with radical Islamic terrorism, and with Islam itself. When America finally woke up from its stupor and realized that its true enemy was Islam, not Russia, Flynn would be ready to help lead the country back to the true path – the protector of Western Civilization itself — and onward to its ultimate destiny.

Jared Kushner’s affinity for Russia, and suspicion of the FBI and federal law enforcement in general, was not ideologically based, but it was equally strong. As a young man of 23 he had suffered the indelible trauma of seeing his beloved father arrested, prosecuted, convicted and imprisoned on what he believed to be bogus charges. The conspiracy theory on which the federal prosecutors (under then U.S. Attorney Chris Christie’s leadership) convicted the senior Kushner involved lurid details of hired prostitutes and family intrigue that provided almost daily fodder for the New Jersey and national press.

Jared had suffered the embarrassment and disgrace of seeing his father sentenced to federal prison in Alabama, young Jared was forced to take over the reins of his family’s real estate empire, while dutifully flying down to Alabama each weekend to visit with his father. Even after his father’s release from prison, Jared continued to bear the emotional and psychological scars, viewing the U.S. government as basically a hostile adversary to be kept at arms-length whenever possible, especially when it came to family matters. With his marriage to Ivanka, the Kushner and the Trump organizations came together very neatly, much as if two Mafia families had forged an alliance through marriage.

Jared’s affinity for all things Russian was for commercial reasons, not psychological. He had seen that Russian money had come “pouring in” (in the words of Donald Trump, Jr.) to the Trump Organization just when it was in danger of collapsing after four successive casino bankruptcies in Atlantic City, New Jersey. The major banks financing the Trump casinos had taken a major financial bath as a result and had lost their appetite for further financing of Trump’s ill-conceived ventures.

Fortunately for Trump and his organization, Russian, Ukrainian and Central Asian oligarchs had billions of dollars looking for safe havens in the West to park their money, and Russian organized crime was always looking for friendly real estate developers to help them launder their ill-gotten gains. The Trump Organization was more than willing to accommodate them. Many of the original purchasers of condos in Trump Tower and other Trump projects hailed from Russia and other former Soviet countries, and Trump entered into a close working relationship with Tevfik Arif and his Bayrock organization, which had direct ties to Putin’s inner circle and Russian organized crime, which by that time had largely merged into one large state-sponsored criminal political organization.

For Trump and his son-in-law Jared, therefore, Russia was actually the savior of their real estate empire, and Russian money was the lifeblood that kept their luxury real estate projects going, one after the other. The model was simple: build a luxury condominium complex in New York or South Florida and they will come, with their hundreds of millions. When Trump built his Sunny Isles Florida towers just north of Miami, the business plan was to market the condos directly in Moscow, St. Petersburg, the French Riviera and other locales where the Russian super-rich congregated. A virtually impenetrable labyrinth of LLCs and shell companies was formed to disguise the identities of the true owners, who could then purchase the units with millions of dollars in cash of unknown or questionable origin – no questions asked.

The effusive warmth that Trump showered on Putin and all things Russian during the campaign may have been surprising to many, but not to Kushner, Flynn and those who knew that the financial fate of the Trump Organization was largely in the hands of the Russians, and that if Putin directed that Russian financing be pulled out, the Trump ship would quickly founder and then sink, virtually without a trace. Trump’s destiny was inextricably linked with that of Putin, and Trump was intent from the beginning that Putin know that he would be a loyal and faithful ally of Russia in the unlikely event that he was to be elected as President, and that the crippling sanctions imposed by the U.S. and its Western European allies would quickly be lifted.

At first, Flynn and Manafort were the primary conduits between Russians and the Trump Campaign, and they delivered a tangible reassurance to the Russians by ensuring that the plank in the Republican National Platform be watered down, so that it omitted any reference to a U.S. intention to provide defensive military equipment to Ukraine, which had suffered the annexation of Crimea and was being pressed by pro-Russian separatist and Russian special forces in eastern Ukraine and desperately needed military equipment and spare parts from the U.S.

Then came the tightening of U.S. sanctions by the Obama Administration, at least in part due to the growing conviction by U.S. intelligence agencies that Russia was actively trying to interfere with the 2016 Presidential elections through a sophisticated propaganda and data analytics campaign, which flooded Facebook and other social media platforms with disinformation and fake news stories that were both directed at undercutting the Clinton campaign and promoting Candidate Trump. This effort was closely coordinated with Julian Assange and WikiLeaks, which by then was little more than an arm of the Russian intelligence services for the purpose of the strategic release of tens of thousands of pages of documents hacked from the DNC, the Clinton Campaign, and other sources designed to inflict the maximum damage on Clinton and the Democrats.

Flynn was quickly dispatched by the Trump Campaign to assure Kislyak and the Russians that the anti-Russian tide would shift if Trump were to be elected, and that sanctions would be quickly lifted. In response, Putin and the Russians showed remarkable restraint in response to the expulsion of 35 of their spies operating in the U.S. under diplomatic cover and the further tightening of U.S. sanctions. They uncharacteristically announced that they would wait until after the election before deciding on a response. In other words, if Putin’s nemesis Hillary Clinton were to be elected as President, then Russian would retaliate in kind. If Donald Trump were to be elected, they would wait and see if he made good on his promises –conveyed through Flynn, Manafort (and to a lesser extent by Carter Page) – that U.S. would be lifted.

Jared Kushner also played a key – but heretofore lesser known role – in the successful Russian/Trump collaboration that essentially turned over the keys to the White House to a hostile power for the first time in American history.

Jared had dabbled in data analytics and “micro-targeting” efforts in the marketing of his family’s luxury condominiums, and he became the point man in the Trump Campaign for merging the campaign’s relatively anemic outreach efforts on social media with the sophisticated data analytic techniques of Cambridge Analytica (CA). CA, a Robert Mercer-owned company that originally worked for the Presidential campaign of Senator Ted Cruz until Mercer moved his considerable hedge fund resources in favor of Trump, had developed an approach that succeeded in “weaponizing” social media political efforts with the use of individually-based psychological profiling of voters that made the pro-Trump or anti-Hillary messaging virtually irresistible. Cambridge Anaytica’s parent company in the U.K. – Strategic Communications Laboratories (SCL) — had helped engineer the upset vote in favor of Brexit that led the UK out of the European Union.

Under the watchful eye of Jared Kushner, and with the assistance of Steve Bannon, who moved over to the Trump Campaign from Breitbart News, another Mercer-owned entity, Cambridge Analytica developed a sophisticated marketing strategy that closely paralleled – and indeed mimicked – the already established efforts of hundreds of Russian-financed “trolls” (computer operators) who were flooding American social media platforms with fake sites posing as “grassroots organizations” spewing Russian disinformation and fake new stories plucked from Breitbart News, Alex Jones’ Infowars or other alt-right media outlets. Both the Russian-backed operators and their parallel U.S.-based allies within the Trump Organization and its data analytical contractors –such as CA – were able to micro-target voters in key voting precincts in key battleground states (e.g. Michigan) with laser precision because they had available to them huge databases of publicly available information on virtually every man, woman and child in the U.S., as well as critical voter rolls that had been hacked by the Russians and – possibly – shared with the Trump Campaign to help them micro-target their efforts to reach voters in key precincts that would prove to provide the decisive edge on election day.

When the Washington Post and other news organizations recently reported that Jared Kushner was a “person of interest” with regard to the FBI’s investigation of possible collusion between the Trump Team and the Russians, most of the focus was on the aborted plan to open a back channel line of communication with the Russians. However, the much more significant activities that Kushner engaged in had to do with the significant – and possibly decisive – coordination between the Trump Campaign’s social media campaign and that of their Russian counterparts. Of particular interest to the FBI is the uncanny speed with which the Trump Campaign was able to capitalize on the WikiLeaks data dumps of thousands of pages of DNC/Clinton Campaign documents, raising the suspicion – if not probability – that the Trump Campaign had been given advance copies of the key documents or their metadata, so that these purloined documents could be utilized almost instantaneously once the Russians/WikiLeaks publicly released them. Indeed, some of the “chatter” that the FBI is undoubtedly looking into is that one of the biggest fears that the Trump Campaign had was that someone would “jump the gun,” and that information from the WikiLeaks documents would be used by campaign operatives before the official release date by WikiLeaks.

Jared Kushner should thus be questioned under oath by the Senate Intelligence Committee and by the FBI on a wide range of subjects, not just his inexplicable omission of reference to his Kislyak meetings on his security clearance forms. During the Transition, Kushner also apparently had undisclosed meetings with Putin-crony Sergey Gorkov, the head of the Russian state-owned Vnesheconombank  (VEB) and former deputy chairman of Sberbank, Russia’s largest state-controlled bank.

Since Kushner (like Flynn) was still a private citizen during the transition period, he is subject to criminal prosecution under the Logan Act (1 Stat. 613, 18 U.S.C. § 953), which prohibits an unauthorized United States citizen from negotiating with foreign governments having a dispute with the United States.  He may be also liable under the Espionage Act, which the Obama Administration aggressively used – to the general applause of Republicans – for the leaking of national security secrets by Chelsea/Bradley Manning, NSA operative Eric Snowden and others.

Kushner must also account for his role as the chief coordinator of the Trump Campaign’s data analytics and social media campaign, and how it came about that it so closely mimicked and paralleled the Russian-backed political efforts that were virtually choreographed with the WikiLeaks disclosures of illegally-hacked documents.

In the meantime, Kushner’s top-secret security clearance should be suspended pending further investigation. Many U.S. intelligence operatives and officials have had their clearances suspended for completely inadvertent omissions from their security clearance forms of meetings that they had with government officials from friendly and even allied foreign governments or the omission of personal financial information.

In Kushner’s case (as well as that of Flynn), the failure to make the necessary disclosures was far more serious – and indeed sinister – since it is impossible to believe that such omissions were “inadvertent.” It is unreasonable to believe that Kushner somehow “forgot” to disclose highly sensitive meetings with the Russian Ambassador or a chief Russian banker about highly significant matters, whether it be about the lifting of sanctions, possible Russian loans to the Kushner/Trump real estate empire, the establishment of an unprecedented backchannel communications line with the Kremlin, or other matters. No matter what was discussed, such contacts with Russian officials should have been disclosed, and the failure to do so is strong evidence of an intent to deceive U.S. law enforcement/intelligence officials, and evidence of a guilty mind.

The smell of Treason is truly in the air, and all appropriate steps must be quickly taken to deprive Kushner of any further access to America’s secrets pending further investigation and to ensure that the wheels of justice swiftly turn. Never before in American history has the White House been potentially infested by collaborators with a hostile foreign power, and never since General Benedict Arnold secretly swore allegiance to the Crown and became a British spy has the Republic been so threatened.

THERE IS ALREADY A SOLID BASIS FOR CONGRESS TO INITIATE IMPEACHMENT PROCEEDINGS AGAINST TRUMP

After the sudden firing of FBI Director James Comey for what Trump as much as admitted to Lester Holt of NBC was an effort to stop the FBI’s investigation of possible collusion between Russia and the Trump Team, and after telling the Russian Foreign Minister that he believed that Comey was a “nut job” and that his firing would make the Russian/Trump investigation go away, there is now a solid basis for the impeachment and removal of Trump from the Presidency.

Rep. Maxine Waters (D-Calif.)  announced in April 2017 that she will “fight every day until he is impeached.” A few weeks later, Sen. Richard Blumenthal (D-Conn.) said that Trump’s actions “may well produce impeachment proceedings.” Other Democrats quickly followed, as well as some Republicans. Rep. Justin Amash (R-Mich.) was asked by reporters on Wednesday, May 17, 2017, whether he believed that Trump’s actions if reports were true — that Trump asked Comey to drop his investigation of former national security adviser Michael Flynn – whether such actions were grounds for impeachment. Rep. Amash responded, “yes.”

More recently, Congressman Lieu (D-Calif.), an attorney who practiced law while he was an Air Force JAG officer, announced that he is researching the issue of impeachment and is studying the Congressional Research Service’s excellent 2015 work entitled “Impeachment and Removal.”

The Trump White House is taking the possibility of impeachment proceedings seriously, and it has been reported that Trump’s private attorney and occasional spokesperson, Michael D. Cohen, has been at the White House assembling a team of lawyers to work on the impeachment issue.

If impeachment proceedings were commenced, they would first be considered in the House Judiciary Committee, of which Congressman Lieu is a member. In order for impeachment proceedings to be commenced against President Trump, a majority of the Judiciary Committee’s 4o members would have to vote in favor of impeachment before articles of impeachment were brought before the full House for a vote. Given the current make-up of the House Judiciary Committee (there are 23 Republican members and 17 Democrats), this would require only four Republicans to join the Democrats on the Committee in voting in favor of impeachment.

If a majority of the House favored impeachment of the President, the matter would then go to the Senate for a trial, which would be presided over by Chief Justice John G. Roberts Jr. Two-thirds of the Senate would have to vote in favor of conviction for Trump to be removed from office.

There is already a substantial basis for impeachment proceedings of Trump to begin. His firing of Comey and other heavy-handed attempts to interfere with the Russia/Trump collusion investigation constitute an Obstruction of Justice that already far exceeds the obstructions engaged in by the Nixon White House in their failed efforts to quash the Watergate scandal and investigation. Keep in mind, the Watergate break-in was truly a “third-rate burglary,” and even though the ensuing cover-up was clearly an attempt to obstruct justice, the underlying crimes that led to Nixon’s resignation in 1974 and ignominious departure from the White House lawn aboard the Marine 1 helicopter were inconsequential when compared to the magnitude of the crimes that the FBI is investigating regarding Russia’s meddling with our 2016 Presidential election and apparent collusion with several high-level Trump operatives, including Michael Flynn, Paul Manafort, Carter Page, Roger Stone and others. To the extent that Candidate or President-Elect Trump  knew and/or encouraged members of his team to facilitate or collude with Russia and its agents (including WikiLeaks) in its efforts to destabilize America’s democratic institutions and to tip the election scales in Trump’s favor, then Trump is guilty of “Treason” and “High Crimes and Misdemeanors” under the Constitution and should be removed from office.

In addition, to the extent that –since taking the oath of office on January 20, 2017 – President Trump has obstructed the FBI’s investigation into that Trump/Russian collusion, then that adds additional grounds for impeachment.

Only two Presidents have been impeached, but the charges against them were relatively minor as compared to the potential Treason charges to which Trump may be subjected. In 1868, President Andrew Johnson was impeached for attempting to replace his secretary of war, Edwin Stanton, without congressional permission. After impeachment by the House, he escaped being removed from office by a one-vote margin in the Senate. President Bill Clinton was the second president to be impeached during the Monica Lewinsky scandal of 1998. As much as Clinton’s conduct tarnished the office of the Presidency, even if he had been convicted in the Senate on the perjury and obstruction of justice charges for which he was impeached by the House (he was not), no one but the most zealous of his political enemies could have thought that Clinton’s prevarications regarding Ms. Lewinsky and her infamous dress threatened the fundamental pillars of our democracy.

Trump and his motley crew are truly in a league by themselves. At no time in American history have we had a President and his senior staff so eager to make a deal with a hostile foreign power in return for the keys to the White House, and at no time since the War of 1812 has a foreign power so threatened our democracy by mounting a direct attack on the American Homeland. While the burning of the U.S. Capitol and the entire city of Washington, D.C. by British troops on August 24, 2014, was a dark day in American history, no one ever alleged that the President of the United States or any of his administration colluded with the British.

In contrast, Trump gleefully invited WikiLeaks (and by inference the Russians) to violate U.S. criminal laws by hacking into Hillary Clinton’s emails and otherwise wreaking havoc on the American body politic during the 2016 Presidential campaign. He also surrounded himself with senior advisors – including Flynn, Manafort, Page and Stone – who he knew or should have known either had close ties with Russian or pro-Russian operatives, or were so totally lacking in political or moral scruples that they would do absolutely anything to advance the Trump cause or to subvert the Clinton campaign, regardless of the collateral damage that would be done to American security or democracy.

The stench of Treason and Obstruction of Justice is already permeating the White House and spreading rapidly. As Special Counsel Mueller and the Congressional committees continue their investigations, there is already more than enough evidence for the House Judiciary Committee to open an impeachment investigation. Our country deserves no less.

WHY MICHAEL J. FLYNN SHOULD NOT BE GIVEN IMMUNITY

Mr. Flynn’s lawyer, Robert Kelner, recently issuing a tantalizing public statement as part of an aggressive lobbying campaign to obtain immunity for the former national security advisor: “General Flynn certainly has a story to tell, and he very much wants to tell it, should circumstances permit.”
While Flynn may have a story to tell, his sworn testimony would come at far too high a price if either Congress or the Justice Department were to grant him immunity in return for it. There are numerous reasons for this, and the indications that neither the House or Senate Intelligence Committees are jumping at the opportunity to immunize Flynn and thereby secure his testimony is an extremely positive development. Here’s why.
1. Flynn Is Too High Up In the “Food Chain.”
As a former senior Trump Campaign official and as the National Security Advisor to President Trump (albeit for only 28-days), General Flynn is a very high government official, and an immunity grant to him at this early stage of the investigation would violate one of the cardinal rules of any federal investigation. Absent extraordinary circumstances, immunity should only be granted to a subject or target of an investigation if he or she has credible evidence of criminal conduct by someone higher-up in the in the criminal conspiracy or racketeering organization. Immunity, therefore, is usually only offered to low-level players in order to “flip” them and obtain their sworn testimony against more prominent figures higher up in the criminal organization.
With the possible exception of President Trump and Vice President Pence, Mr. Flynn was at the top of the pyramid, at least during his short tenure in the White House. And there is no indication that VP Pence played any role in the Team Trump/Russian cabal. This leaves President Trump as someone who Flynn could implicate in his “story,” but there is absolutely no reason to give Flynn an “immunity bath” just because we are all curious to hear what he might say about the President. In all likelihood, everything will be disclosed in due time, with or without Flynn’s testimony.
2. Flynn Probably Doesn’t Know Much More Than What Has Been Publicly Disclosed.
Unlike Paul Manafort, whose ties to Russian and pro-Russian oligarchs goes back for more than a decade, General Flynn came fairly late to the “let’s play footsie with the Russians” game as a member of Team Trump.
The major tip-off that Flynn does not really have much more information that would be of interest to Congress or the Justice Department is that his lawyer took the unusual step to publicly announce that Flynn was seeking immunity. Usually, if a defense counsel has some real “smoking gun” information to offer up to government prosecutors in return for a grant of immunity to a client, they set up a closed-door, confidential meeting with the prosecutor, sit down, and go over the “proffered” testimony of the witness in great detail. Either Flynn’s lawyers had already gone down this path and had hit a dead end before issuing their press release, or Flynn did not really have much high value information to share in the first page, so the only available option was to create a media-hype that would stampede one or both of the Congressional committees into giving Flynn immunity in return for the promised “story.”
Flynn’s first major involvement with the far-flung Kremlin propaganda machine came in December 2015 where, less than a year after resigning from the U.S. military, Flynn showed up in Moscow at the 10th Anniversary Gala of Russia Today (RT), an arm of the Russian security apparatus. Flynn sat next to Vladimir Putin at this festive event and, overwhelmed with enthusiasm at being so honored as to be assigned o Putin’s table, jumped up to lead the well-heeled crowd in a rousing standing ovation for this Great Russian Autocrat.
Flynn was paid generously for his services, receiving over $67,000 from RT and three other Russian companies with close ties to the Kremlin. As if this was not enough of a red flag, Flynn apparently did not get clearance for his Moscow trip or these payments from the Pentagon, thus exposing himself to all sorts of possible disciplinary and criminal sanctions.
Then there was the now-famous December 2016 phone calls with the Russian Ambassador, which Flynn discussed the possibility of a Trump Administration lifting or at least easing sanctions against Russia. Flynn then lied to VP Pence about these phone conversations, resulting in the embarrassing situation where Pence was duped into making misleading statements to the press regarding Flynn’s contacts with the Russians. Even though he had been the DIA Director, Flynn either didn’t know or forgot that U.S. intelligence agencies monitor the phone conversations of high-level Russian officials in this country, and that it was likely that his conversations with the Russian Ambassador would be recorded. The transcript of Flynn’s fateful phone calls ended up on the desk of Acting Attorney General Sally Yates, who warned the White House that Flynn could be compromised by the Russians since he was spreading false and misleading stories about his contacts with the Russians. Shortly after the story broke, Flynn was forced to resign.
In all likelihood, before the truth came out, Flynn also lied about his conversations with the Russian Ambassador to the FBI, which is itself a federal crime under Title 18 of the United States Code, Section 1001, even though he was not place under oath at the time. If so, this would be a “slam dunk” of a prosecution since all a federal prosecutor would only have to introduce two pieces of evidence in order to get a criminal conviction: (a) the transcript of the phone conversation between the Russian Ambassador and Flynn, and (b) the transcript or notes of the FBI’s interview with Flynn. Case closed. Flynn would then be sentenced to up to five years in prison, although the sentence would probably be on the lighter side if he decided to then tell his full “story” without immunity.
Flynn also has criminal exposure for his retroactive registration as a foreign agent for the Turkish government, while, at the same time, serving as a top advisor to the Trump Presidential campaign. The $64,000 question is why Flynn waited until after he had been terminated as the national security advisor before properly registering and informing Trump and other senior officials: “Oh, and by the way, I am working as an agent for a major foreign power; that’s OK, right?” Flynn also failed to timely disclose that his former consulting firm earned $530,000 in 2016 from a Dutch entity with ties to the Turkish government. What’s his explanation: “I was very busy at the time and just plain forgot.” Not very convincing.
3. History Teaches Us that It is Virtually Impossible to Prosecute Someone After Even a Limited Grant of Immunity

Even if Flynn were to be given limited “use” immunity, as opposed to “transactional immunity,” he could theoretically still be prosecuted under the federal criminal law based upon evidence that is totally independent of the evidence he may provide under oath through his own testimony. However, in practical terms, it would be virtually impossible to prosecute Flynn for any serious criminal offenses he may have already committed once he was granted “use” immunity by either Congress or the Justice Department. History has already proved this point.
On July 20, 1980, the United States Court of Appeals for the District of Columbia vacated all three of Oliver I. North’s Iran-contra felony convictions and overturned his conviction for having destroyed classified documents while he served as an aid to the National Security Council under President Ronald Reagan. The major factor leading to this reversal was concern that North’s conviction had been tainted by testimony he had given to Congress on the promise that it would not be used against him.
In the summer of 1987, North, a former Marine Corps Lieutenant colonel who was alleged to have played a key role in getting arms from Iran to be delivered to the right-wing “contras” in Nicaragua, and his boss, John M. Poindexter, the national security advisor, had been given “use” immunity by Congress in return for his sworn testimony. This use immunity agreement had been made by Congress over the objections of independent special prosecutor, Lawrence M. Walsh, and without consultation with the Justice Department.
Similar to the current calls for an immunity agreement with Flynn — based upon the argument that the country and the public urgently needs to immediately know the whole truth about any possible collusion between the Trump Team and the Russians — there was a strong impetus by Democrats during the Reagan Administration to push the Congressional inquiry into President Reagan’s Iran-contra policies as vigorously as possible. Congressional Democrats wanted to get the public testimony of such high-profile witnesses as Oliver North, the assistant to then-National Security Advisor John Poindexter. North usually showed up for public appearances decked out in his spiffy Marine Corp uniform, and never disappointed in given dramatic testimony. The temptation was too much for publicity hungry members of Congress, and the testimony of North and Poindexter was unquestionably the high point of the hearings. Indeed, it was great theater, and many Americans, including myself, remember watching North testify before Congress.
However, the cost for such a spectacle was very high. By immunizing North and Poindexter, the Justice Department’s investigation and later prosecution of them was crippled from the start. The Justice Department invested a tremendous amount of time and money in prosecuting North and Poindexter, only to have those convictions overturned because of the prior immunity grants that they had been given by Congress. The government’s burden of establishing that the evidence used to convict North and Poindexter was completely unrelated to their Congressional testimony was an impossibly high one, and the government was unable to meet it, as the federal appeals court later determined in July 1990.
4. Immunity for Flynn Would Send the Wrong Message
Flynn’s legal predicament is entirely of his own making. Remember his chants of “Lock her up, lock her up” at the Republican National Convention in Cleveland last summer? Remember his clenched jaw and sense of total outrage over the fact that a former Secretary of State had stored confidential data on a less-than-completely-secure server and was still walking around free, and even having the temerity to run for the Presidency? Remember his rants about the five Clinton aides who had been given immunity as part of the FBI investigation, speculating that they must have been involved in criminal conduct if they or their lawyers felt that they needed immunity?
Turnabout is not only fair play, but it provides an important “teaching moment” for the all of us. One of the fundamental ethical principles of our great society is that each person must take responsibility for their own words and their own actions. President Harry S. Truman had his now-famous saying on his desk in the Oval Office: “The buck stops here.” The Trump Administration seems to have gotten a new motto: “If you can pass the buck, do so, and there will be no adverse consequences.”
Flynn is on record as believing that if someone asks for immunity, they must be guilty of something. He has now asked for immunity, so he must believe that he is guilty of something. Whatever that “something” is, a full and fair investigation should be completed by the relevant Congressional committees and the FBI/Justice Department. What Flynn has to say about it right now is largely irrelevant, since has already ventilated his views in numerous lengthy interviews with reporters. Hearing his story once again under oath in a public forum would be interesting, but probably not very enlightening. If he wants to “give up” the President, there will be plenty of time for him to share his story with us after the criminal investigation and possible prosecution has run its course.
The only rational decision for Congress and the Justice Department to make – at least in the short term – is to just say “No.”