The case against Michael Flynn: Lying to the FBI about asking Russia’s help to protect Israel

The indictment and guilty plea of General Flynn represent what I suspect is the high water mark of the Russiagate scandal.

A few weeks ago, following the indictments issued against Paul Manafort, Rick Gates and George Papadopoulos, I speculated that Flynn would be the next person to be indicted, and so it has proved.

Flynn’s guilty plea has come with an apparent agreement to cooperate with Special Counsel Robert Mueller’s investigation. Inevitably this is giving rise to speculation that Flynn has “flipped”. Is that speculation warranted?

Firstly, it needs to be said that the indictment against Flynn and his guilty plea have absolutely no bearing on the allegations of illegal collusion during the 2016 Presidential election between the Trump campaign and the Russians which are at the centre of the Russiagate scandal.

Instead they concern what is purely a ‘process crime’: that Flynn falsely denied to the FBI that he had asked Russian ambassador Kislyak for Russia to react with restraint to the sanctions imposed on Russia in December 2016 by Barack Obama, and – much more interestingly – that he also falsely denied having asking Kislyak for Russia’s help to block or delay a vote on a Resolution in the UN Security Council.

The indictment does not say what this resolution was. However the timing strongly suggests that it was Resolution 2334 passed on 23rd December 2016, which declared Israeli settlement activity unlawful, declared all Israeli settlements built since the 1967 Six Day War illegal, and which specifically ruled out recognising Jerusalem as Israel’s capital. Note that the indictment refers to a conversation between Flynn and Kislyak on 22nd December 2016, the day before the vote in the UN Security Council on Resolution 2334 took place.

At the time the UN Security Council voted for resolution 2334 I wrote a lengthy article for The Duran in which I said that though I happen to agree with every point made in Resolution 2334, I still thought the decision to put Resolution 2334 to the vote on 23rd December 2016 was wrong since it was transparently a device by Barack Obama to box in and embarrass his successor, the soon-to-be President Donald Trump.

Firstly, it should be said that Resolution 2334 is unlikely to have come to the vote so quickly without the US quietly giving the green light to it, and making it known that it would not veto it.

As it happens when Resolution 2334 was first proposed it would have been open to Obama and his administration to ask for voting on it to be postponed until the new President had taken office, on the grounds that it was inappropriate for an outgoing administration to decide US policy on such an important Resolution when it was known that the incoming President had a different view.

Indeed that is arguably what Obama should have done. This is an important Resolution (I attach the full text below) and given how controversial it is and its possible effect on future negotiations where the US plays a key role, there is a strong case for saying that the Obama administration should either have asked for voting on the Resolution to be postponed until after the new President had come into office, or – if that was impossible – should have consulted with President elect Donald Trump and his transition team to decide how the US would respond to it.
In the event we know from Trump’s angry reaction that he was not consulted, and there seems to have been no attempt to seek a postponement.

Obtaining a postponement looks as if it was perfectly possible. Some countries on the Security Council – Malaysia and Venezuela especially – might have wanted to press ahead immediately. However Egypt, which had initially proposed the Resolution, effectively disowned it, possibly under Israeli pressure, but more probably in order not to antagonise the incoming administration of Donald Trump, whilst the US’s allies, Britain and France (both Security Council Permanent Members) and Japan and New Zealand, would undoubtedly have gone along with a US request.

As for Russia, which is considering a Middle East peace initiative involving Israel and the Arabs of its own, its ambassador Vitaly Churkin in his comments to the Security Council made clear that he had expected a request for a postponement and would have supported it. This is how the UN Press Office reports his comments

VITALY I. CHURKIN (Russian Federation), explaining that he had been puzzled by the process around the resolution and by the haste with which it had been “pushed” to the vote, agreed with other speakers that settlement activities undermined the chances for a two-State solution, as did acts of terror and incitement to violence.

(bold italics added)

[dropcap]S[/dropcap]ince that was Russia’s position it is a certainty if a request for a postponement had been made that China also would have supported it. In that case, with all the Great Powers agreed, it is a certainty that voting on the Resolution could have been postponed until after Inauguration Day. That a postponement did not happen is a sure sign that Obama did not want one, and that despite the US abstaining on the vote he actually wanted the Resolution passed……

As for why Obama wanted such a Resolution passed in the closing weeks of his Presidency, the answer unfortunately almost certainly has little to do with Middle East peace, and everything to do with Donald Trump.

It has become increasingly clear over the last few weeks that Obama’s overriding objective during the closing weeks of his Presidency is to do whatever he can to undermine Donald Trump’s legitimacy and authority as the US’s next President, and to lock Trump in to Obama’s existing foreign policy positions.

Thus Obama has colluded in the paranoid campaign which alleges that Donald Trump owes his election to Russia; he has sought to nominate German Chancellor Angela Merkel as his true successor and guardian of his policies instead of Donald Trump; and he has cut across Trump’s known wish to improve relations with Russia by having US and EU sanctions against Russia increased and extended.

By allowing UN Resolution 2334 to pass, Obama is doing more of the same. He knows that Trump wants closer relations with Israel and is contemplating recognising Jerusalem as Israel’s capital and moving the US embassy there, so Obama allows a Resolution to slip past the UN Security Council that says that doing that would be against international law.

No wonder Trump – like Benjamin Netanyahu – is furious, and is making the fact known with angry comments about the UN.

Speaking for myself, on the specific issue of east Jerusalem, I happen to agree with Obama, and with Resolution 2334.

Though I understand the importance of Jerusalem not just for Israelis but also for Jewish people generally, Arabs and Muslims have at least comparably strong feelings about this issue, and given the overriding importance for the world of securing Middle East peace, it is wrong and unreasonable for Israel to try to remove the question of east Jerusalem from the negotiating table by deciding its status unilaterally.

There is of course vastly more which can be said about this subject, and about Israel’s conduct in the Occupied Territories and the Arab-Israeli conflict generally, but as this is a huge subject I will not discuss it here.

The point is that Obama’s constant campaign to box in and undermine his successor, even on issues where Obama might actually be in the right, is nonetheless petulant and wrong.

What makes it even worse in this case is that Trump, Netanyahu and probably the Russians almost certainly all believe that Obama is the true author of Resolution 2334.

Obama has a constant habit of trying to deflect criticism from himself by working through others whilst keeping his own intentions secret. This enables him to blame others for his own mistakes – as he did for example when he managed to transfer the blame for the Libyan debacle onto Hillary Clinton – or to reverse policy quickly if his existing policy runs into criticism or opposition – a good example being the way he let last September’s Kerry-Lavrov agreement over Syria unravel when it became clear that the Pentagon and the neocons in the State Department and the CIA opposed it.

It is this habit of Obama’s of constantly failing to commit himself publicly, and of working as much as possible from behind the scenes, which in large part explains why internationally he has become so mistrusted.

The case of Resolution 2334 is a case in point. The full story of how this Resolution suddenly materialised before the UN Security Council just a few weeks before Donald Trump was due to become President may never be known.

However, given Obama’s history and the fact that he undoubtedly wanted the Resolution to pass, there has to be a suspicion that he got his diplomats to arrange for a friendly country – probably Egypt – to sponsor the Resolution, so that it could be passed without his having to take responsibility for it.

If Obama really did act in this way – arranging moreover for the US to abstain on a Resolution which he privately supported in order to cover his traces even further – then Trump’s and Netanyahu’s anger becomes even more understandable.

Ultimately Obama’s attempts to box in his successor will probably fail, and whatever one’s views on specific issues such as that of east Jerusalem, it deserves to.

In the case of Resolution 2334, the status of east Jerusalem is far too important to be played with in this way. It is one thing for Obama to speak out against Donald Trump’s intended policy on this issue if he think it is wrong. It is quite another for Obama to use his remaining weeks as President to try to sabotage in advance his successor’s policy on this and on any other issue.

Obama has had eight years as US President to fashion US policy on east Jerusalem. He could have supported a Resolution of the sort the UN Security Council has just passed at any time during his Presidency. A good possible moment might have been shortly after his reelection in 2011, when he would have had less reason to appease Israel’s supporters in the US than he had had previously.

Had Obama supported such a Resolution before, he might have been able to build on it to work for Middle East peace. As it is, almost certainly because Obama finds Middle East peace-making too risky and too controversial to engage in, he has allowed efforts to achieve a peace settlement of the Arab-Israeli conflict to stagnate during his Presidency. At a political level that was probably wise because none of the efforts of previous Presidents to achieve Middle East peace have borne fruit. Nonetheless it is what a President who genuinely cared about this issue would have done.

Instead, acquiescing in or actively engineering a Resolution like Resolution 2334 at the very end of his Presidency in order to spite his successor – and possibly Israeli Prime Minister Netanyahu as well – is a small minded and spiteful act, which is all but guaranteed to lead nowhere……..

Unfortunately it is the sort of small minded and spiteful act which is all too typical of this President, and which shows why Obama’s conduct of foreign policy has in the end fallen so far short of its promise, and has been so generally unsuccessful…

Reading through the tea leaves it seems that someone in the Trump transition team – almost certainly Jared Kushner – incensed by Obama’s actions, asked Flynn to speak to the Russians to see whether there was any chance they might be persuaded to use their influence in the UN Security Council to get the vote on Resolution 2334 either delayed until after President elect Trump took office or blocked altogether.

The result was to set in train the now famous series of telephone conversations between Flynn and Kislyak over the course of one of which Flynn also asked Kislyak for Russian restraint in response to Obama’s December 2016 sanctions against Russia.

That this is indeed what lies behind this whole affair is confirmed by recent information that Special Counsel Mueller’s team is looking into Kushner’s contacts with Israeli diplomats, and that Kushner has recently been interviewed by Mueller’s team for 90 minutes about information which would supposedly ‘exculpate’ Flynn of illegal dealings with the Russians.

What does any of this have to do with the Russiagate collusion allegations?

The short answer is absolutely nothing.

To those who say that Flynn is cooperating with Mueller in order to prove those allegations, and that Flynn’s conduct amounts to treason, I would point out that there is nothing in the indictment that makes the least reference to those allegations, and that in his statement which he released today Flynn categorically denied those allegations and that he had committed treason.

After over 33 years of military service to our country, including nearly five years in combat away from my family, it has been extraordinarily painful to endure these many months of false accusations of “treason” and other outrageous acts. Such false accusations are contrary to everything I have ever done and stood for.

(bold italics added)

This is not a confession that Flynn engaged in illegal collusion with the Russians or that he was involved with other people in the Trump campaign or the Trump transition team in carrying out such collusion. On the contrary it is a categorical denial that he did or was.

Personally I would go further and say that it is also a denial by Flynn of any knowledge of any illegal collusion taking place since I cannot see how Flynn can call accusations against him “outrageous” and “false” if he knows that they are true of other people he was working with.

To my mind what this episode best shows is the extraordinary inexperience and amateurism of the people who made up Donald Trump’s transition team.

Kushner and Flynn should have known that asking the Russians to postpone the vote in the UN Security Council on Resolution 2334 was to ask the Russians the impossible.

Though Vitaly Churkin – Russia’s ambassador to the UN Security Council – made known Russia’s unease at the way the Obama administration had railroaded through the vote on Resolution 2334 before the transition in Washington had taken place, given Russia’s longstanding position on the Palestinian-Israeli conflict there was never the slightest chance that Russia would act either to delay or to block the vote on Resolution 2334.

As to the legal implications of all this, Kushner may have been foolish and amateur in getting Flynn to talk to Kislyak in this way but I cannot see that any crime was committed by it. The suggestion Kushner will be prosecuted under the Logan Act for inappropriate dealings with the Israelis looks to me incredibly farfetched.

The only potential point of concern for the Trump administration concerns the extent of Donald Trump’s knowledge of Kushner’s and Flynn’s activities.

It is surely likely that Jared Kushner discussed with Trump what he proposed to get Flynn to do, and it may be that Trump’s attempt to talk Comey out of pressing the case against Flynn stems from Trump’s embarrassment that Flynn landed himself in trouble because he acted on the instructions of his son-in-law.

To those looking to construct a case against Trump for obstruction of justice there might just be a glimmer of an argument here, and it may be that this why Mueller has chosen to indict Flynn for his false statements about his conversations with Kislyak rather than over his failure to register properly his lobbying work for Turkey under FARA and to declare properly the payments he received from RT.

However against that no one, least of all Comey himself, has ever said that Trump actually ordered Comey to drop the case against Flynn.

It bears repeating that nothing Flynn said to Kislyak – or which he might have been asked by Kushner to say to Kislyak – amounted to a criminal offence, a fact all but admitted by the indictment itself, which makes no charge about it.

On the contrary as Ty Cobb – Trump’s lawyer – has correctly said, the only crime for which Flynn is being charged – lying to the FBI about his conversations with Kislyak – is the same one for which he was previously sacked by the White House.

My guess is that over the next couple of weeks the focus of Special Counsel Mueller’s investigation will increasingly become Kushner. Doubtless it will be about his dealings with Kushner that Mueller will be asking Flynn questions, with Mueller wanting to know how and why Kushner came up with his crack-brained idea of asking the Russians to block Resolution 2334.

However there is no evidence of any illegal collusion by Kushner with the Russians either before the election or after it, and it bears repeating that everything that has been discussed in this article and which has arisen from Flynn’s guilty plea and indictment happened after the election. It cannot therefore have any bearing on the Russiagate collusion case against the Trump campaign, or the claims that the Russians meddled in the election to help Donald Trump. On the contrary, the fact that the Russians turned down Kushner’s and Flynn’s suggestion that they act to block Resolution 2334 if anything argues the opposite.

Indeed if the entirety of the case against Kushner turns on steps he and Flynn took however incompetently to try to protect Israel – as I strongly suspect – then given the political realities in Washington I doubt it will go anywhere.