2. President-Elect Trump is Briefed on the Intelligence Community’s Assessment of Russian Interference in the Election and Congress Opens Election Interference Investigations
On January 6, 2017, as noted in Volume II, Section 11.A.4, supra, intelligence officials briefed President-Elect Trump and the incoming Administration on the intelligence community’s assessment that Russia had interfered in the 2016 presidential election.107 When the briefing concluded, Comey spoke with the President-Elect privately to brief him on unverified, personally sensitive allegations compiled by Steele.108 According to a memorandum Comey drafted immediately after their private discussion, the President-Elect began the meeting by telling Comey he had conducted himself honorably over the prior year and had a great reputation.109 The President-Elect stated that he thought highly of Comey, looked forward to working with him, and hoped that he planned to stay on as FBI director. 110 Comey responded that he intended to continue serving in that role. 111 Comey then briefed the President-Elect on the sensitive material in the Steele reporting.112 Comey recalled that the President-Elect seemed defensive, so Comey decided to assure him that the FBI was not investigating him personally.113 Comey recalled he did not want the President-Elect to think of the conversation as a “J. Edgar Hoover move.”114
On January 10, 2017, the media reported that Comey had briefed the President-Elect on the Steele reporting, 115 and BuzzFeed News published information compiled by Steele online, stating that the information included “specific, unverified, and potentially unverifiable allegations of contact between Trump aides and Russian operatives.”116 The next day, the President-Elect expressed concern to intelligence community leaders about the fact that the information had leaked and asked whether they could make public statements refuting the allegations in the Steele reports.117
In the following weeks, three Congressional committees opened investigations to examine Russia’ s interference in the election and whether the Trump Campaign had colluded with Russia.118 On January 13, 2017, the Senate Select Committee on Intelligence (SSCT) announced that it would conduct a bipartisan inquiry into Russian interference in the election, including any “links between Russia and individuals associated with political campaigns.”119 On January 25, 2017, the House Permanent Select Committee on Intelligence (HPSC[) announced that it had been conducting an investigation into Russian election interference and possible coordination with the political campaigns.120 And on February 2, 2017, the Senate Judiciary Committee announced that it too would investigate Russian efforts to intervene in the election.121
3. Flynn Makes False Statements About his Communications with Kislyak to Incoming Administration Officials, the Media, and the FBI
On January 12, 2017, a Washington Post columnist reported that Flynn and Kislyak communicated on the day the Obama Administration announced the Russia sanctions.122 The column questioned whether Flynn had said something to “undercut the U.S. sanctions” and whether Flynn’s communications had violated the letter or spirit of the Logan Act.123
President-Elect Trump called Priebus after the story was published and expressed anger about it.124 Priebus recalled that the President-Elect asked, “What the hell is this all about?”125 Priebus called Flynn and told him that the President-Elect was angry about the reporting on Flynn’ s conversations with Kislyak.126 Flynn recalled that he felt a lot of pressure because Priebus had spoken to the “boss” and said Flynn needed to “kill the story.”127 Flynn directed McFarland to call the Washington Post columnist and inform him that no discussion of sanctions had occurred. 128 McFarland recalled that Flynn said words to the effect of, “I want to kill the story.”129 McFarland made the call as Flynn had requested although she knew she was providing false information, and the Washington Post updated the column to reflect that a “Trump official” had denied that Flynn and Kislyak discussed sanctions. 130
When Priebus and other incoming Administration officials questioned Flynn internally about the Washington Post column, Flynn maintained that he had not discussed sanctions with Kislyak.131 Flynn repeated that claim to Vice President-Elect Michael Pence and to incoming press secretary Sean Spicer.132 In subsequent media interviews in mid-January, Pence, Priebus, and Spicer denied that Flynn and Kislyak had discussed sanctions, basing those denials on their conversations with Flynn.133
The public statements of incoming Administration officials denying that Flynn and Kislyak had discussed sanctions alarmed senior DOJ officials, who were aware that the statements were not true.134 Those officials were concerned that Flynn had lied to his colleagues-who in turn had unwittingly misled the American public-creating a compromise situation for Flynn because the Department of Justice assessed that the Russian government could prove Flynn lied.135 The FBI investigative team also believed that Flynn’s calls with Kislyak and subsequent denials about discussing sanctions raised potential Logan Act issues and were relevant to the FBI’s broader Russia investigation.136
On January 20, 2017, President Trump was inaugurated and Flynn was sworn in as National Security Advisor. On January 23, 2017, Spicer delivered his first press briefing and stated that he had spoken with Flynn the night before, who confirmed that the calls with Kislyak were about topics unrelated to sanctions.137 Spicer’s statements added to the Department of Justice’s concerns that Russia had leverage over Flynn based on his lies and could use that derogatory information to compromise him. 138
On January 24, 2017, Flynn agreed to be interviewed by agents from the FBI.139 During the interview, which took place at the White House, Flynn falsely stated that he did not ask Kislyak to refrain from escalating the situation in response to the sanctions on Russia imposed by the Obama Administration. 140 Flynn also falsely stated that he did not remember a follow-up conversation in which Kislyak stated that Russia had chosen to moderate its response to those sanctions as a result of Flynn’s request.141
4. DOJ Officials Notify the White House of Their Concerns About Flynn
On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel Donald McGahn and informed him that she needed to discuss a sensitive matter with him in person.142 Later that day, Yates and Mary McCord, a senior national security official at the Department of Justice, met at the White House with McGahn and White House Counsel’s Office attorney James Burnham.143 Yates said that the public statements made by the Vice President denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially compromised position because the Russians would know he had lied.144 Yates disclosed that Flynn had been interviewed by the FBI.145 She declined to answer a specific question about how Flynn had performed during that interview, 146 but she indicated that Flynn’ s statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions.147 McGahn came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn’s FBI interview and his contacts with Kislyak.149
That afternoon, McGahn notified the President that Yates had come to the White House to discuss concerns about Flynn. 150 McGahn described what Yates had told him, and the President asked him to repeat it, so he did.151 McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. § I 001.152 The President asked about Section 1001, and McGahn explained the law to him, and also explained the Logan Act. 153 The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” I55
That evening, the President dined with several senior advisors and asked the group what they thought about FBI Director Comey.156 According to Director of National Intelligence Dan Coats, who was at the dinner, no one openly advocated terminating Comey but the consensus on him was not positive.157 Coats told the group that he thought Comey was a good director.158 Coats encouraged the President to meet Comey face-to-face and spend time with him before making a 159 decision about whether to retain him.
107 Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I 15th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 1-2):
108 Comey 11/15/ 17 302, at 3; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, I I 5th Cong. (June 8, 2017) (Statement for the Record of James 8. Comey, former Director of the FBI, at 1-2).
109 Comey 1/7/17 Memorandum, at 1. Comey began drafting the memorandum summarizing the meeting immediately after it occurred. Comey 11/15/17 302, at 4. He finished the memorandum that evening and finalized it the following morning. Comey 11/15/17 302, at 4.
110 Comey 1/7/17 Memorandum, at 1; Comey 11/15/17 302, at 3. Comey identified several other occasions in January 2017 when the President reiterated that he hoped Comey would stay on as FBI director. On January 11 , President-Elect Trump called Comey to discuss the Steele reports and stated that he thought Comey was doing great and the President-Elect hoped he would remain in his position as FBI director. Comey 11/15/17 302, at 4; Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 1 I 5th Cong. (June 8, 2017) (testimony of James B. Comey, former Director of the FBI), CQ Cong. Transcripts, at 90. (“[D]uring that call, he asked me again, ‘Hope you’re going to stay, you’re doing a great job.’ And I told him that I intended to.”). On January 22, at a White House reception honoring law enforcement, the President greeted Comey and said he looked forward to working with him. Hearing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 20 I 7) (testimony of James B. Comey, former Director of the FBI), CQ Cong. Transcripts, at 22. And as discussed in greater detail in Volume II, Section 11.D, infra, on January 27, the President invited Comey to dinner at the White House and said he was glad Comey wanted to stay on as FBI Director.
111 Comey 1 /7117 Memorandum, at 1; Comey l l /15/ 17 302, at 3.
112 Comey 1/7/17 Memorandum, at 1-2; Comey I 1/15/17 302, at 3. Comey’s briefing included the Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 20 I 6, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of tapes from Russia but not sure if there’ s anything else. Just so you know …. ” 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host he 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/ l 8 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/ 12/ 18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/ l 0/ 18 302, at 7.
113 Comey 11/15/17 302, at 3-4; H earing on Russian Election Interference Before the Senate Select Intelligence Committee, 115th Cong. (June 8, 2017) (Statement for the Record of James B. Comey, former Director of the FBI, at 2).
114 Comey 11/15/17 302, at 3. 115 See, e.g., Evan Perez et al., Intel chiefs presented Trump with claims of Russian efforts to compromise him, CNN (Jan. 10, 2017; updated Jan. 12, 2017). 116 Ken Bensinger et al., These Reports Allege Trump Has D eep Ties To Russia, BuzzFeed News (Jan. 10, 2017).
117 See 1 / 1 l /17 Email, Clapper to Comey (” He asked ifT could put out a statement. He would prefer of course that I say the documents are bogus, which, of course, I can’t do.”); 1/ 12/ 17 Email, Comey to Clapper (“He called me at 5 yesterday and we had a very similar conversation.”); Comey 11/15/ 17 302, at 4-5.
118 See 2016 Presidential El.ection Investigation Fast Facts, CNN (first publis hed Oct. 12, 2017; updated Mar. 1, 2019) (summarizing starting dates of Russia-re lated investigations).
119 Joint Statement on Committee Inquiry into Russian Intelligence Activities, SSCI (Jan. l 3, 2017).
120 Joint Statement on Progress of Bipartisan HP SCI Inquiry into Russian Active Measures, HP SCI (Jan. 25, 2017).
121 Joint Statement from Senators Graham and Whitehouse on Investigation into Russian Influence on Democratic Nations’ Elections (Feb. 2, 2017).
122 David Ignatius, Why did Obama dawdle on Russia’s hacking?, Washington Post (Jan. 12, 2017).
123 David Ignatius, Why did Obama dawdle on Russia’s hacking?, Washington Post (Jan. 12, 2017). The Logan Act makes it a crime for “[a]ny citizen of the United States, wherever he may be” to “without authority of the United States, directly or indirectly commence or carr[y] on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.” 18 U.S.C. § 953.
124 Priebus l/ 18/ 18 302, at 6.
125 Priebus 1/18/18 302, at 6.
126 Priebus 1/18/18 302, at 6.
127 Flynn 11/2 I / 17 302, at I; Flynn 11/20/17 302, at 6.
128 McFarland 12/22/17 302, at 12-13.
129 McFarland 12/22/17 302, at 12.
130 McFarland 12/22/ 17 302, at 12-13; McFarland 8/29/17 302, at 8; see David Ignatius, Why did Obama dawdle on Russia ‘s hacking?, Washington Post (Jan. 12, 2017).
131 Flynn 11117/17 302, at I, 8; Flynn 1/19/18 302, at 7; Priebus I 0/13/17 302, at 7-8; S. Miller 8/3 I /17 3 02, at 8-1 I.
132 Flynn 11/17/17 302, at I, 8; Flynn 1/ 19/18 302, at 7; S. Miller 8/31/17 302, at 10-11.
133 Face the Nation Interview with Vice President-Elect Pence, CBS (Jan. 15, 2017); Julie Hirschfield Davis et al., Trump National Security Advisor Called Russian Envoy Day Before Sanctions Were Imposed, Washington Post (Jan. 13, 2017); Meet the Press Interview with Reince Priebus, NBC (Jan. 15, 2017).
134Yates 8/15/17 302, at2-3; McCord 7/17/17 302, at 3-4; McCabe 8/17/17 302, at 5 (DOJ officials were “really freaked out about it”).
135 Yates 8/15/17 302, at 3; McCord 7/17/17 302, at 4.
136 McCord 7/17/17 302, at 4; McCabe 8/17/17 302, at 5-6.
137 Sean Spicer, White House Daily Briefing, C-SPAN (Jan. 23, 2017).
138 Yates 8/ 15/17 302, at 4; Axelrod 7/20/17 302, at 5.
139 Flynn Statement of Offense, at 2.
140 Flynn Statement of Offense, at 2.
141 Flynn Statement of Offense, at 2. On December 1, 2017, Flynn admitted to making these false statements and pleaded guilty to violating 18 U.S.C. § I 001 , which makes it a crime to knowingly and willfully “make any materially false, fictitious, or fraudulent statement or representation” to federal law enforcement officials. See Volume I, Section IV.A.7, supra.
142 Yates 8/ 15/17 302, at 6.
143 Yates 8/15/17 302, at 6; McCord 7/17/17 302, at 6; SCR0l5 000198 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President).
144 Yates 8/15/17 302, at 6-8; McCord 7/17/17 302, at 6-7; Burnham 11/3/ 17 302, at 4; SCRO l 5_000198 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President).
145 McGahn 11/30/17 302, at 5; Yates 8/15/17 302, at 7; McCord 7/ 17/17 302, at 7; Burnham 11/3/17 302, at 4.
146 Yates 8/ 15/17 302, at 7; McCord 7/17/17 302, at 7.
147 SCR015_000198 (2/15/17 Draft Memorandum to file from the Office of the Counsel to the President); Burnham 11/3/17 302, at 4.
148 McGahn 11/30/17 302, at 5.
149 SCR0l5_000198 (2/ 15/17 Draft Memorandum to file from the Office of the Counsel to the President); McGahn 1 1 /30/17 302, at 6, 8.
150 McGahn 11/30/17 302, at 6; SCR0l5_000278 (White House Counsel’s Office Memorandum re: “Flynn Tick Tock”) (on January 26, “McGahn IMMEDIATELY advises POTUS”); SCR015_ 000198 (2/15/ 17 Draft Memorandum to file from the Office of the Counsel to the President).
151 McGahn 11/30/17 302, at 6.
152 McGahn I 1/30/17 302, at 7.
153 McGahn I 1/30/17 302, at 7.
154 McGahn 11/30/17 302, at 7; SCRO 15_000 I 98-99 (2/ 15/17 Draft Memorandum to file from the Office of the Counsel to the President).
155 Priebus 10/13/17 302, at 8. Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The Pres ident-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/ 12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’ s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as ” being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10.
156 Coats 6/ 14/17 302, at 2.
157 Coats 6/14/17 302, at 2.
158 Coats 6/14/17 302, at 2.
159 Coats 6/14/17 3 02, at 2.