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Wednesday, May 20, 2020
Trump Administration Declassifies Full Susan Rice Email – But Is It Incriminating?
The Trump Administration has declassified an email that Obama National Security Advisor Susan Rice sent to herself on January 20, 2017, the day that President Trump was inaugurated. The email memorializes a January 5, 2017 meeting in the Oval Office in which leaders of the intelligence community along with President Obama, Vice President Biden, and then-Acting Attorney General Sally Yates, discussed Michael Flynn.
While some Republicans have viewed the email as a smoking gun in what they term “Obamagate,” it is not clear that the email is evidence of any wrongdoing by the Obama Administration. The second paragraph notes that “President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities ‘by the book.’”
“The president stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective,” Rice said in the email. “He reiterated that our law enforcement team needs to proceed as it normally would by the book.”
The president then asked if there was any reason that information could not be shared fully with the incoming Trump team “as it relates to Russia.”
Then FBI-Director James Comey answered the question. His reply is newly declassified.
“Director Comey affirmed that he is proceeding ‘by the book’ as it relates to law enforcement,” Rice wrote. “From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied ‘potentially.’ He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that ‘the level of communication is unusual.’”
The one-page email concludes with the paragraph, “The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said that he would.”
The declassified email comes on the heels of another document released by Richard Grenell, the acting Director of National Intelligence, last week. The earlier document names Joe Biden’s office as the source of a request for the unmasking of Flynn’s name in intelligence reports.
The documents certainly mention Biden and Flynn and a host of others, but what do they mean? The answer is less than what the Trump Administration is implying.
Rice’s memo does show that the FBI was aware of Flynn’s contacts with Kislyak, the Russian ambassador, but it does not prove that the FBI had the Trump campaign under surveillance, but it is not evidence of wrongdoing.
The Rice email undercuts the Obamagate conspiracy theory by bringing the meeting into the open rather than trying to deny it or hide the details. Rice openly acknowledges the meeting took place and says the investigation was “by the book.” Is there evidence to the contrary? If so, the Trump Administration has not provided it.
Likewise, the fact that a number of Obama Administration officials requested unmasking is not sinister in and of itself. In fact, the requests for unmasking undercut the claims that the Trump campaign was being surveilled.
When an official sees a FISA intelligence report, the names of US citizens who were detected because they were communicating with a foreign person who was the target of the surveillance are “masked” to US intelligence officials. For example, an American might be anonymized as “US Person 1.” Unmasking requests are not uncommon. Politifact reports that there were approximately 27,000 such requests in the first two years of the Trump Administration.
The fact that Obama officials were requesting that Flynn’s name be unmasked is an indication that they did not know who he was. This would not have been the case if they were intentionally eavesdropping on the Trump campaign. Further, the large number of requests for unmasking is evidence that the Obama Administration officials were not gossiping about Flynn’s contacts with Kislyak. If they had known beforehand that it was Flynn, they would not have needed to create a paper trail with unmasking requests.
Reaching back a few weeks further, the FBI notes released by Flynn’s lawyers also fall short of proving wrongdoing on the part of investigators. The documents, which Flynn’s advocates claim prove that Flynn plead guilty to protect his son and that the FBI tricked Flynn into lying, do not show anything outside the “range of normal prosecutorial hardball” per Benjamin Wittes of Lawfare Blog.
In reality, Flynn plead guilty not once but twice. His proponents overlook a December 2018 sentencing hearing in which Flynn himself blows their theories out of the water. In that hearing (transcript here), Flynn acknowledged his guilt, acknowledged that he was aware that lying to the FBI was a crime, and declined to challenge the circumstances under which he was interviewed by the FBI.
In the end, we are left with a man who was not targeted by the FBI but was swept up in surveillance of foreign diplomats. Flynn then lied about his conversations with Kisylak when he knew that doing so was a federal crime. Flynn’s phone calls to Kislyak were not illegal but lying about them was. The FBI did not force Flynn to lie but rather gave him the rope to hang himself.
Based upon current evidence, to make the Obamagate allegations a crime, we would have to assume that any surveillance of a presidential campaign staffer is illegal or unethical. In reality, it is not a bad thing if surveillance of foreign agents nets campaign staffers. Being a member of a political campaign does not confer immunity from investigation or prosecution even though it does make such matters politically sensitive.
Nevertheless, the Trump Administration is proceeding full steam ahead with the claim that the Obama Administration acted illegally, even to the point of threatening to subpoena former officials in the case. This is true even though last week President Trump was unable to cite a specific crime that was supposedly committed by the Obama Administration. Instead, Republicans make the generic claim that Obama tried to “weaponize” the FBI and intelligence agencies for political purposes, which sounds a lot like what the Trump Administration is doing.
Republicans may want to think twice about that. In about eight months, Donald Trump may be a private citizen once again and Democrats might very well control both houses of Congress. If the GOP sets a precedent of hauling former Administration officials before Congress for trumped-up political investigations, Mr. Trump and his subordinates may find that they have a lot to answer for.