The phone calls between Michael Flynn and Russian ambassador Sergey Kislyak are at the heart of the controversy surrounding the former national security adviser and the Justice Department’s attempt to drop his case.
But neither supporters of Flynn nor questioners of the attorney general have succeeded at making the transcripts public, and they’re still calling for their release.
In a case where the Justice Department has pushed out more documents about internal FBI discussions than even a federal judge said Flynn should have, the foundational document showing what Flynn said to the Russian government in December 2016 has stayed secret.
Flynn’s defenders, including his lawyers and Iowa Republican Sen. Chuck Grassley, believe the transcripts could help exonerate him.
Grassley called recently for “the need for additional transparency to restore public trust in the Department” of Justice, after Attorney General William Barr faced a backlash for deciding Flynn’s lies about the call weren’t “material” and discussions with Kislyak weren’t worthy of a counterintelligence or criminal investigation while Flynn served in the White House.
Flynn has said in a sworn affidavit in recent months he didn’t intentionally lie to the FBI, giving them “the best of my recollection at the time.”
“I still don’t remember if I discussed sanctions,” Flynn wrote in court in January this year.
Attorneys who have questioned the effort to drop the case, including one now appointed by a judge to argue against it, say the transcripts, if known, could underline Flynn’s guilt, removing doubt about his intentions. If Flynn had gone to trial, the transcripts likely would have been key evidence before a jury.
The judge in Flynn’s case has sought the transcripts unsuccessfully before. And they could factor into the still-live case.
Retired federal Judge John Gleeson, who’ll be reviewing Flynn’s case, and two former top prosecutors – including one who represents former acting Attorney General Sally Yates – have said the transcripts should be released.
“By ordering disclosure of the transcripts, the court can empower the American public to judge for itself — and assess why the department is trying to walk away from this important case,” they wrote in a Washington Post op-ed this week.
“To help Flynn, the department has made public documents it jealously guards in almost every other case, including confidential memos and internal deliberations. But it has balked at disclosing the transcripts of the very conversations with the Russian ambassador that Flynn admitted he lied about when the FBI interviewed him.”
A year ago, Judge Emmet Sullivan ordered prosecutors to release of transcripts audio recordings between Flynn and Russian officials, but the Justice Department refused. Wednesday, Gleeson was appointed to make legal arguments in the case as Sullivan considers both the dismissal request and holding Flynn in contempt for perjury.
Flynn pleaded guilty to lying to the FBI about his asks of Russia on the calls, during which Flynn discussed with Kislyak Russia’s position at an upcoming United Nations vote on Israel and the Russian reaction to US sanctions the Obama administration put on the country for its interference in the US election.
Flynn and Kislyak spoke in late December 2016 multiple times. On one call, he asked that Russia not respond too harshly to US sanctions, according to his admissions in his guilty plea and the Mueller report. Russia chose not to retaliate against the sanctions. On another call about the UN vote, Flynn told Kislyak the incoming Trump administration would oppose a resolution about Israeli settlements – a stance different from the Obama administration. He asked for Russia to vote against or delay the resolution.
Flynn spoke with senior officials on the Trump transition team between his discussions with Kislyak. He admitted in December 2017 he lied to FBI agents earlier that year about the calls, telling them he hadn’t made requests of the Russian government.
When special counsel Robert Mueller made public Flynn’s plea deal, it included a description of what was said on the call, without using direct quotes, versus what Flynn said in his interview. Public government documents have carefully redacted any descriptions of how US intelligence agencies and the FBI knew what was said on the call.
“It was nothing inconsistent with the Obama administration’s policies. And it was in US interests,” Barr said in a recent interview about Flynn’s behavior, the opposite of what his own Justice Department previously described about Flynn’s asks of Russia on the call.
But Yates, serving as the acting attorney general when the Justice Department learned of the calls, recounted to the Senate that “the underlying conduct that General Flynn had engaged in was problematic in and of itself.” Yates was careful in that May 2017 public testimony not to reveal what was said on the call or how her department knew it.
Flynn’s lawyers, as well as the Republican-led Senate Intelligence Committee, have sought the transcript for months. Grassley and California Democratic Sen. Dianne Feinstein first requested the transcript in February 2017.
“Given what we now know about the government’s withholding of exculpatory information, and as critics scrutinize the department’s decision to withdraw the case, it’s imperative that the department show all of its work,” Grassley wrote this week in a letter to Barr and acting Director of National Intelligence Richard Grenell, who has been declassifying other details related to Flynn.
Jason Foster, former chief investigative counsel to the Senate Judiciary Committee, wrote in a Newsweek op-ed that the panel “wanted to compare the transcript of the intercepted call to the agent’s contemporaneous notes of the interview to understand exactly how Flynn allegedly deceived the FBI.”
Foster wrote: “all the public knows is mostly from selective leaks to the press.”
“If Flynn engaged in nefarious business with the Russians,” Foster wrote, “why would he do it on a phone call he knew was likely being monitored? Why would he think he could get away with lying about it?”
The Flynn defense team said in court last year they believed they should have had access to the document, according to court filings.
Flynn asked for a court order for the Justice Department to turn over “a full unredacted and copies of the recordings of Mr. Flynn’s calls with Ambassador Kislyak or anyone else that were reviewed or used in … charges against Mr. Flynn,” believing the call transcripts would help Flynn fight his charge. But Sullivan decided Flynn didn’t deserve more evidence under the law.
“It cannot escape mention that the press has long had transcripts of the Kislyak calls that the government has denied to the defense,” Flynn’s lawyers wrote in November 2019 as they sought access to more documents in his case.
But even the Washington Post, which broke the early 2017 stories revealing that Flynn and Kislyak had spoken and discussed sanctions, never described exact quotations of what was said.