By Robert Romano
“One White House official with knowledge of the conversations told me that the Russian ambassador raised the sanctions to Flynn and that Flynn responded that the Trump team would be taking office in a few weeks and would review Russia policy and sanctions. That’s neither illegal nor improper.”
That was Bloomberg View columnist Eli Lake’s reporting and take on what was actually discussed between former National Security Adviser Mike Flynn and Russian ambassador Sergey Kislyak in an U.S. government-recorded conversation on Dec. 29, 2016.
On Jan. 13, the fact that the conversation had occurred was leaked to the news media to create the appearance of sedition by Flynn. But a subsequent inquiry by the FBI had found nothing illegal to do with the conversation, which was reported on Jan. 23 by the Washington Post’s Ellen Nakashima and Greg Miller.
It turned out to be a non-crime.
All raising the question of why it was ever leaked to the press to begin with, if there was nothing there. It was a witch hunt from day one, a made-up investigation into what is actually commonplace during presidential transitions, and that is national security positions engaging in discussions with their counterparts overseas.
Yes, Presidents-elect and their surrogates routinely talk to foreign leaders and counterparts is well-grounded in American history as transitions get ready to take power.
For example, in 1968, then-National Security Advisor designee Henry Kissinger created a backchannel during the Nixon transition with a Soviet intelligence official, prior to Richard Nixon assuming office, and that was at the height of the Cold War. These interactions led to successful summits, détente and eventually the Strategic Arms Limitations Treaty and Anti-Ballistic Missile Treaty in 1972. That was not espionage. Not sedition. It was preparing for the incoming administration. That’s it.
At the Feb. 14 White House press briefing, Press Secretary Sean Spicer staunchly defended the practice, stating, “That’s what the National Security Advisor and frankly other positions do, they begin the process of preparing their incoming job by talking to counterparts, people who’ve previously held the job, etc. If [Flynn] had not done that, there would questions as to whether he was properly prepared on day one.”
Americans for Limited Government President Rick Manning concurred in a statement, noting, “It is absurd that in today’s world, Gen. Flynn having an honest conversation with one of his foreign counterparts in preparation of the incoming administration in December was ever a firestorm in the first place.”
Just in carrying out his transition duties, Flynn should have been able to have had this conversation and had it remain private, not subjected to unwarranted surveillance and then public disclosure. Manning raised concern with how this information had come to light, through Obama administration surveillance of Flynn, calling it “particularly disturbing and unacceptable” and a “witch hunt.”
“These are police state tactics. Flynn, being an honorable man of unimpeachable character, took the political fall. But this must not stand,” Manning declared.
In the meantime, the Obama administration surveillance of the then-Trump transition team of what turned out to be a non-crime and then leaked the contents of that surveillance to the press, an unbelievable abuse of power.
Reports indicate that Flynn was swept up in conversations that had been targeted on the Russian ambassador. If the ambassador was on U.S. soil, that still would have required a warrant by the Foreign Intelligence Surveillance Act (FISA) court.
When that happens, Flynn’s identity could have only been retained if specific requirements were met under what is known as USSID 18, which includes rules promulgated for collection, retention and then dissemination of foreign intelligence gathered to and from U.S. persons.
To have kept the communications would have required either sign off from the Attorney General if he or she believes that the “contents indicate a threat of death or seriously bodily harm to any person,” under Section 5.4.a. Or the Director of the National Security Agency, under 5.4.d., if he determines the communications contain “significant foreign intelligence” or “evidence of a crime or threat of death or seriously bodily harm to any person.”
For Flynn’s name to have then been included in a report for dissemination, under Section 7.2.c., if the “appropriate approval authority” determined “[t]he identity of the U.S. person is necessary to understand foreign intelligence information or assess its importance” or “[t]he information is evidence that the individual may be involved in a crime that has been, is being, or is about to be committed, provided that the dissemination is for law enforcement purposes.”
Those particular unmasking procedures of a U.S. person’s communications intercepted in the collection of foreign intelligence would have required no separate warrant — a constitutionally dubious standard under the Fourth Amendment’s prohibition against unreasonable searches.
They do, however, require specific approvals meeting specific criteria. If those processes were not followed, 50 U.S.C Section 1809 explicitly prohibits “intentionally engag[ing] in electronic surveillance under color of law except as authorized by this chapter… [and/or] disclos[ing] or us[ing] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this chapter…”
Or if those processes were followed, its public disclosure certainly violated 18 U.S.C. Section 798, which prohibits “knowingly and willfully communicat[ing] … or otherwise mak[ing] available to an unauthorized person, or publish[ing] … any classified information … obtained by the processes of communication intelligence from the communications of any foreign government…”
Manning urged that the abuse of intelligence be investigated, concluding, “Every single person responsible for illegally surveilling the Trump campaign and then the transition and now the administration if it’s still going on should be prosecuted and/or fired. Every single person responsible for illegally leaking said surveillance to the press should be prosecuted and/or fired.”
Again, Flynn had not engaged in espionage or a crime — the FBI passed on an investigation because it found no crime — yet his conversation with a foreign counterpart was swept up by the surveillance state, apparently without a warrant, and then used against him simply because he was a political opponent of the Obama administration.
These are the true crimes by the deep state that should be investigated, not more politically motivated witch hunts.
Perhaps the Obama administration disagreed with President Donald Trump’s position on engaging with Russia — a policy question that as president he has fully constitutional discretion — but that did not justify using surveillance against the incoming president and National Security Advisor for preparing to implement that policy.
Robert Romano is the senior editor of Americans for Limited Government.