The unsealing of the FBI’s closing memo on the Flynn investigation made two things clear: The FBI had no proper predication for investigating Flynn, and the confidential human source should be investigated for making false statements to the FBI.
Recently released documents confirm that the Federal Bureau of Investigation (FBI) framed Michael Flynn and that the special counsel’s office (and later federal prosecutors) improperly withheld material exculpatory evidence from Flynn’s defense attorneys.
However, two lesser-noticed realities also came into focus with last week’s unsealing of the FBI’s closing memorandum on the Flynn investigation: The FBI had no proper predication for launching its investigation into Flynn, and the confidential human source (“CHS”) debriefed as part of the Flynn probe should be thoroughly investigated for making false statements to the FBI.
Last week, Flynn’s attorney, Sidney Powell, filed a second supplement to the still-pending motion to dismiss the criminal case against the former Trump national security adviser. More than two years ago, while being represented by attorneys from Covington & Burling, Flynn pleaded guilty to making false statements to the FBI about his conversations with the Russian ambassador.
Since Powell took over Flynn’s representation, she has been demanding complete disclosure of all documentation surrounding the investigation into Flynn, but to no avail — that is, until Attorney General William Barr appointed an outside U.S. attorney to review the Flynn investigation.
Missouri-based U.S. Attorney Jeff Jensen’s probe into the targeting of Flynn has uncovered a cache of previously undisclosed documents. Powell has received two batches of documents to date, and immediately filed those with the court to supplement her argument that presiding Judge Emmet Sullivan should dismiss the charge against Flynn based on egregious prosecutorial misconduct.
Among the documents Powell filed last week was the FBI’s four-page communication closing out the investigation of Flynn, coded Crossfire Razor. That closing communication was dated Jan. 4, 2017, but text messages included with the court filing reveal that higher-ups in the FBI halted the closing of the investigation. Additional documents uncovered by U.S. Attorney Jensen show that under the guise of that still technically open investigation, FBI agents Peter Strzok (since fired) and Joe Pientka proceeded to question President Donald Trump’s then-national security adviser about his call with the Russian ambassador.
No Proper Predicate to Investigate Flynn
The details included in the closing communication reveal another key point: The FBI’s decision to target Flynn under the umbrella of the Crossfire Hurricane investigation was itself pretextual — there was no proper predicate to investigate Flynn.
In explaining its decision to shutter the Flynn investigation, the FBI noted in its closing communication that it had opened Crossfire Razor “based on an articulable factual basis” that Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.”
What exactly was that “articulable factual basis”? Four facts: 1) that Flynn “was cited as an adviser to then Republican presidential candidate DONALD J. TRUMP for foreign policy issues since February 2016,” 2) that Flynn had ties to various “state-affiliated entities of the Russian Federation, as reported by open source information,” 3) that Flynn “traveled to Russia in December 2015, as reported by open source information,” and 4) that Flynn had “an active TS/SCI clearance.”
This was no basis; this was bull.
The FBI predicated an investigation into one of the top foreign policy advisers to a presidential campaign based, first, on the fact that Flynn worked for the Trump campaign, which itself was the target of the Crossfire Hurricane investigation. And in opening the case on Flynn, the FBI “
cross-referenced the predication for Crossfire Hurricane.”
The Predicate for Crossfire Hurricane
Let’s start with the predication for Crossfire Hurricane, as the FBI believed that added to its justification for targeting Flynn.
In his report on the Carter Page Foreign Intelligence Surveillance Act, or FISA, abuse, Inspector General (IG) Michael Horowitz explained that the FBI opened Crossfire Hurricane “in response to information [Counterintelligence Division] officials received on July 28, 2016, from a Friendly Foreign Government (FFG) indicating that in a May 2016 meeting with the FFG, George Papadopoulos, an advisor to the Trump campaign, ‘suggested the Trump team had received some kind of a suggestion’ from Russia that it could assist in the election process with the anonymous release of information during the campaign that would be damaging to candidate Clinton and President Obama.”
While the opening documentation from Crossfire Hurricane relied solely on Papadopoulos’ comment as a basis for launching the investigation into the Trump campaign, the IG report noted that “the FBI received the FFG information at a time when it had reason to believe that Russia may have been connected to the Wikileaks disclosures that occurred earlier in July 2016, and when the U.S. Intelligence Community (USIC), including the FBI, was aware of Russia’s efforts to interfere with 2016 U.S. elections.”
Horowitz concluded that, “given the low threshold for predication,” the FBI had a sufficient basis “to predicate the full counterintelligence investigation,” branded Crossfire Hurricane.
Upon the release of the IG report, Barr and U.S. Attorney John Durham — the federal prosecutor Barr appointed to investigate the Russia probe — both
denounced Horowitz’s conclusion that Crossfire Hurricane was properly predicated. “Last month, we advised the inspector general that we do not agree with some of the report’s conclusions as to predication and how the F.B.I. case was opened,” Durham said in a statement released shortly after the IG report. Durham stressed that the Crossfire Hurricane “investigation is not limited to developing information from within component parts of the Justice Department,” and instead “included developing information from other persons and entities, both in the U.S. and outside of the U.S.”
The details Durham uncovered that call into question the predication of Crossfire Hurricane remain unknown. But even assuming the FBI properly predicated the Crossfire Hurricane investigation, the targeting of Flynn in a separate investigation fails to satisfy even the “low threshold for predication” on which Horowitz hung his hat.
As the IG report noted, the attorney general and the FBI’s Domestic Investigations and Operations Guide requires an “articulable factual basis” that, “if true,” “reasonably indicates” the target may be involved in “an activity constituting either a federal crime or a threat to national security,” or terrorism or some other legitimate investigative purpose not at issue here.
But none of the grounds for targeting Flynn noted in the IG report “reasonably” indicate the former national security adviser “may have been involved in an activity constituting a federal crime or a threat to national security.” That conclusion should have been obvious from the IG’s report when it hit in December 2019. But so many significant revelations emerged in the 400-page report, Horowitz’s perfunctory discussion of the issue went unnoticed, and his conclusion that “the quantum of information articulated by the FBI to open” the individual investigation of Flynn was sufficient to satisfy the low predication threshold went unchallenged.
The FBI’s Bogus Basis for Investigating Flynn
However, one detail contained in the closing document — but omitted in the IG report — concerning the predication jolts attention to the absence of a proper predicate.
In addition to noting that Flynn served on the Trump campaign, the closing memorandum provided as a rationale for opening an investigation into Flynn his “active TS/SCI clearance.” This fact not only does not justify investigating Flynn, it cuts against the entire idea that Flynn may have been involved in activity on behalf of the Russian Federation.
Mere months before the FBI launched Crossfire Razor, the Obama administration’s Defense Intelligence Agency (DIA), in April of 2016, renewed Flynn’s “top secret/sensitive compartmented information” clearance. “That approval is significant,”
wrote Eli Lake in the Chicago Tribune. “The process for renewing a security clearance at that level is intense. It includes interviews with associates and friends and an extensive background check. Flynn took a polygraph test as part of his reapplication for the security clearance.”
The timing of that April 2016 renewal is also
significant because the FBI claimed two additional facts justified its launch of Crossfire Razor, but those facts pre-dated Flynn’s TS/SCI clearance. Specifically, the closing document noted Flynn had ties to various state-affiliated entities of the Russian Federation, presumably Russia Today, for whom Flynn gave a speech in Moscow in December 2015 — the basis of the final supposedly suspicious point.
Those facts were known before Flynn’s TS/SCI clearance renewal. Additionally, before Flynn traveled to Russia in 2015 to speak at the dinner, he was briefed by the DIA. Flynn’s attorney Sidney Powell told me that Flynn also briefed the DIA upon his return, and shared with the intelligence agency a thumb drive of information he had collected during his Russia trip.
Under these circumstances, it is beyond ridiculous that the FBI relied on Flynn’s 2015 trip to Russia as providing a “factual basis” for suspecting that he was “involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.” Given that those events occurred after Flynn’s TS/SCI clearance renewal, the FBI could have no “reasonable” basis to launch an investigation into him.
While the IG report concluded otherwise, Horowitz’s team inexplicably omitted any mention of the FBI’s reliance on Flynn’s TS/SCI clearance renewal. Might that have been because Horowitz realized the predicate provided for the launch of Crossfire Razor crumbled when Flynn’s top-secret-plus clearance was factored into the mix?
Or might there have been other “facts” known to the FBI that were omitted from the opening electronic communication?
Here the FBI’s closing communication, read in conjunction with the IG report, suggests that possibility.
Did the FBI Have Undisclosed Intel on Flynn?
Recall first that the IG report noted, “After conducting preliminary open source and FBI database inquiries, intelligence analysts on the Crossfire Hurricane team identified three individuals — Carter Page, Paul Manafort, and Michael Flynn — associated with the Trump campaign with either ties to Russia or a history of travel to Russia.” However, the Crossfire Hurricane team on Aug. 10, 2016, initially opened only separate counterintelligence cases on Page, Manafort, and Papadopoulos. The FBI didn’t open a case on Flynn until Aug. 16, 2016.
Why the delay? What changed? The IG report does not tell us, but it suggests a possibility.
On Aug. 11, 2016, the Crossfire Hurricane team met with “Source 2,” reportedly CHS Stefan Halper. During that meeting, the FBI inquired about Papadopoulos, but while Halper hadn’t heard of Papadopoulos, he noted he had met campaign volunteer Page and asked if the FBI had any interest in Page. Halper also “told the Crossfire Hurricane team that [he] had known Trump’s then campaign manager, Manafort, for a number of years and that he had been previously acquainted with Michael Flynn.” (Flynn has never met Halper, though, Powell told me.)
The IG report’s discussion of its use of Source 2 makes no further mention of Flynn, although Horowitz’s team reported that Case Agent 1 had “said that it was ‘serendipitous’ and that the Crossfire Hurricane team ‘couldn’t believe [their] luck’ that Source 2 had contacts with three of their four subjects.”
The next day, Aug. 12, 2016, the FBI again debriefed Halper. Four days later, with a weekend intervening, the FBI opened the case against Flynn. Why? Was it something Halper said?
The IG report does not explain the delay, and the closing document makes no mention of another basis for opening Crossfire Razor, but we know from the IG report that in the case of Crossfire Hurricane, the FBI did not include the entire basis for launching the investigation in the opening documentation. Rather, as discussed above, the opening documentation identified Papadopoulos’ comments about Russia having information on Hillary Clinton to a friendly foreign government as the sole predicate for the investigation. But the FBI agents told Horowitz that the WikiLeaks release of the DNC emails and the intel indicating Russia intended to interfere in the 2016 election provided an important backdrop to their decision to investigate the Trump campaign.
Similarly, the FBI may have belatedly opened a case on Flynn because of some additional “intel.” Here, the just-released closing document raise that possibility.
CHS Reporting Echoes a Faulty Media Narrative
“The [Crossfire Hurricane] investigative team also addressed this investigation through CHS reporting,” the closing memorandum read, noting the Crossfire Hurricane team “contacted an established FBI CHS to query about [Flynn], seeking ‘any derogatory or lead information.’” According to the FBI’s closing memorandum, “the CHS relayed an incident s/he witnessed,” when Flynn spoke at an event, the name of which was redacted. The CHS told the FBI team that at the time of Flynn’s speech, he was still within the U.S. intelligence community.
The CHS said that after Flynn spoke at the event and socialized over dinner and drinks, members of the unnamed group arranged for a cab to take Flynn to a train station, at which time a person whose identity was redacted in the document, “surprised everyone and got into [Flynn’s] cab and joined [Flynn] on the train ride” to his destination. The CHS added that “s/he was somewhat suspicious of” this individual, claiming the person’s “father may be a Russian Oligarch” living in an unnamed city.
For those following the Flynn case, this “intel” closely resembles a story first peddled in the press by Christopher Andrew in February 2017, when he
penned a piece for the U.K.’s Sunday Times titled “Impulsive General Misha Shoots Himself in the Foot.” Andrew, who had served as the official historian of Britain’s MI5, wrote of a dinner gathering at a Cambridge intelligence seminar at which Flynn had spoken while still serving as then-President Obama’s director of the Defense Intelligence Agency.
Andrew suggested in his article that an intrigue began over dinner and drinks between Flynn and an unnamed Russian-national graduate student.
Other outlets quickly pushed the narrative, with the Wall Street Journal identifying Svetlana Lokhova as the female student. Lokhova later sued the Wall Street Journal and other outlets, along with her former Cambridge colleague, Halper, for defamation, alleging Halper was behind Andrew’s story and the other false reporting that suggested she had an affair with Flynn and was a Russian spy.
Lokhova is convinced Halper is the CHS discussed in the closing memorandum, and she is the unnamed individual who supposedly jumped in the cab with Flynn and boarded the train with him.
How do I know it is Halper? Lokhova asked rhetorically. “Because reporters were telling me Halper was peddling the story about me and Flynn as early as December 2016,” Lokhova told me. In fact, long before last week’s release of the closing memorandum, in a May 2018 interview with the Sunday Times about the Cambridge dinner, Lokhova pointed out that she had
told the London outlet that “Halper told reporters he had seen me leaving the dinner with Flynn,” lining up with the CHS’s claim that Lokhova had jumped into a cab with him.
Lokhova’s attorney Steven Biss also considers the closing memorandum significant. “The Closing Memorandum confirms that Halper represented to the FBI that Ms. Lokhova ‘surprised everyone’ and got into General Flynn’s cab and joined General Flynn on a ‘train ride.’ This important new evidence corroborates Ms. Lokhova’s allegations in her lawsuit filed in May 2019,” Biss told me.
Was Crossfire Razor Predicated on a Lie?
Earlier this year, a federal court tossed Lokhova’s lawsuit against Halper and the other media outlets, preventing her from obtaining discovery necessary to prove her case. Lokhova has appealed that dismissal, and Biss maintains that the release of the closing communication “demonstrates that the district court short-circuited and prematurely dismissed Svetlana Lokhova’s case against Stefan Halper.”
“Now we know that Halper, the ‘established FBI CHS’ referred to in the Closing Memorandum, relayed an incident he claims he ‘witnessed’ when General Flynn spoke at the dinner in Cambridge on Feb. 28, 2014,” Biss told me, adding, “We look forward to reversal on appeal so she can obtain further discovery of Halper’s role in the defamation.”
While Lokhova and Biss are convinced Halper is the unnamed CHS, there are other possibilities. The CHS could be someone who actually attended the Cambridge dinner — which Halper did not. Richard Dearlove and Christopher Andrew, both of whom have connections to British intelligence, could have been the CHS. Or possibility another attendee?
No matter the identity of the CHS, however, the claim that Flynn left the Cambridge dinner with a Russian is false, and a CHS who claimed to have witnessed that event would have been knowingly lying to the FBI. Did that lie serve as an unsaid predicate for launching Crossfire Razor?
The FBI knows, and the FBI and DOJ know the identity of that CHS. Lokhova deserves to know the truth. America deserves to know the truth. And that CHS, whoever it may be, deserves to be investigated for his role in the SpyGate scandal.
