Flynn’s Work as Turkey’s Agent While a Transition Official: Judge Sullivan Was at Least Half Right

Michael Flynn may have been working as an unregistered agent of Turkey while serving the United States in an official capacity after all, depending simply on how you define his U.S. position at the time. Significant attention has been placed on Judge Emmet Sullivan’s apparent assertion and subsequent retraction that Flynn was an unregistered agent while serving as the National Security Advisor to the President of the United States. Admittedly, there’s no evidence in the public record that Flynn was still working as an agent for Turkey after Jan. 20, 2017. What’s missing from current public discussions, however, is that Flynn appears to have continued his work on behalf of Turkey well into the presidential transition after he was the named National Security Advisor of the incoming administration and serving the President-Elect.

Supporters of Flynn can’t have it both ways. In other matters, they have asserted that senior members of the presidential transition team, including Flynn himself, benefit from the status of quasi, if not veritable, officials. Consider what Flynn supporters say about his status when it comes to the question whether it was inappropriate or illegal for him to have been discussing sanctions and other policies with the Russians in December 2016. In a full throated criticism of Judge Sullivan and in support for Flynn, the Wall Street Journal editorial board wrote: “Those talks were legal and normal for a new national security advisor.” Think about that. For actions Flynn took in December 2016, the Journal labels him “a new national security advisor.” There’s some fairness to the argument. Indeed, the finer point of the legal question turn on the meaning of a person acting “without the authority of the United States” in the terms of the Logan Act. Legal experts, like Just Security’s Steve Vladeck have written that the spirit of the Logan Act, if not its letter, would not necessarily apply to senior members of a presidential transition team who are helping set policy for the incoming administration.

Add to this side of the equation what else the White House has said about the presidential transition period. The White House Counsel, as well as Trump’s personal lawyers, have suggested that Congress and Special Counsel Mueller cannot obtain information in the Russia investigation that involves the transition period on the ground that “Executive Privilege,” which is generally thought to apply only to a sitting president, can also be asserted on behalf of the president-elect.

Even if one does not take it as far as the Wall Street Journal or the Trump legal team about the meaning of the transition period, it would be a spectacular revelation if Flynn, while serving in his capacity as the named national security advisor of the incoming administration would also be continuing to work secretly with Turkey.

But isn’t that what he did?

A well-understood part of the Flynn-Turkey timeline is a meeting he held with Turkish officials in Sept. 2016 discussing, in part, removing a US resident, cleric Fethullah Gülen, from the United States into Turkey’s custody. The Wall Street Journal broke the story about that meeting in late March 2017. By the time the story broke, Flynn had submitted his forms retroactively filing as a foreign agent of Turkey, but failing to disclose the true purpose of the September meeting.

What followed the Sept. 2016 meeting and, more importantly, what followed after the Nov. 2016 elections? According to the recent indictment of Flynn’s associates, on Nov. 10, Flynn’s firm sent an invoice to the company that was a conduit for the Turkish government, and received a wired payment of $145,000 on Nov. 14. Flynn’s firm formally terminated the contract with that company on Nov. 15. The following day, President-Elect Trump announced Flynn would be the incoming White House National Security Advisor.

As an aside: Flynn reportedly expressed interest in a Cabinet-level appointment, but the transition team decided that Senate confirmation could be difficult in part due to his connections to Turkey, according to a person who spoke on the condition of anonymity to the Washington Post about the internal transition team discussions. Flynn could thus rest easier knowing that he would escape such Senate scrutiny with an appointment as national security advisor.

The most important event during the transition came in mid-December when Flynn held a second meeting with Turkish government representatives, according to a second, follow-up story broken by the Wall Street Journal. In that meeting, Flynn reportedly discussed the idea of he and his son helping to remove Gülen and deliver the cleric to Turkish custody using a private jet. Some of the even-more extraordinary details suggest that plan would have paid the Flynns $15 million. “Flynn also was prepared to use his influence in the White House to further the legal extradition of the cleric,” according to the Journal.  (Indeed, within weeks after the inauguration, the FBI was reportedly tasked to conduct a new review of Turkey’s request to extradite Gülen, and federal investigators have reportedly looked into whether Flynn was behind that request.)

NBC News confirmed the Journal’s report of the December meeting.

But perhaps the Journal and NBC got some details wrong, and Flynn’s December meeting was in an official capacity on behalf of the transition team. The problem with that explanation is that the White House rejected it. “We don’t have any evidence that such a meeting took place,” a White House spokesman told the Journal. “And if it did take place it happened notwithstanding the transition.”

Flynn’s lawyers denied the reported details of the plot in the December meeting, but I have not seen any indication that they denied the existence of the meeting.

I need to register one caveat to this line of analysis. Prosecutors have not included the December meeting in their allegations against Flynn. And although the full transcript of the sentencing hearing with Judge Sullivan has not yet been made available to the public, in at least one exchange, the government’s attorney said, “the conduct ended, I believe, in mid-November 2016.”

The December meeting alone would add significant weight to Judge Ellison’s criticisms of Flynn’s behavior. It is worth adding one more piece to this side of the equation. In the weeks before Trump’s inauguration, the Obama administration’s outgoing National Security Advisor Susan Rice asked for the incoming team’s sign off on a plan, already approved by President Obama, to arm the Syrian Kurds in an assault on Raqqa, ISIS’s capital in Syria. Much to the Obama officials’ surprise at the time, Flynn rejected the plan. The government of Turkey had strongly and publicly opposed any plan for the United States to arm the Kurdish forces. It is important to recall that Flynn took this action during the time he had not yet disclosed or registered his work as a foreign agent for the government of Turkey. After Flynn was fired, the Trump administration then decided to arm the Syrian Kurds. Flynn’s blocking action, in the meantime, had created an operational slowdown in the U.S.-led assault on the vital ISIS stronghold.

McClatchy News, which broke the story of Flynn’s rejection of the plan, reported that some members of Congress privately used the word “treason” to describe Flynn’s behavior.

Although the legal definition of treason does not apply, it is understandable that colloquial use of the term and other non-legal terms like traitor or treachery might. At a minimum, Judge Sullivan is not alone in his thinking and there is more evidence in the public record to suggest he was at least half-right about Flynn.

Photo credit: Former National Security Advisor retired Lt. General Michael Flynn leaves after the delay in his sentencing hearing at US District Court in Washington, DC, Dec. 18, 2018 (Saul Loeb/AFP/Getty Images) 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).