Anticipating Phase Two of the Trumped Up “Obamagate”

President Donald Trump insists, against all evidence, that there is something called “Obamagate”: some crime, or perhaps series of crimes, that the preceding administration committed against him, or against his adviser Michael Flynn, or maybe against even more of the Trump team. Yet the president fails to say what the crime(s) might be. Instead, he seizes on the language, alludes to improprieties, and—increasingly—wields it all to tar his rival for the presidency, Joe Biden. Countering Trumpian disinformation campaigns like this one demands disentangling the threads that Trump has weaved into “Obamagate,” debunking the falsehoods that Trump is propagating—and, at the same time, acknowledging where there may in fact have been serious missteps during the previous administration.

That means acknowledging that there may well be a lurking truth to a serious allegation against former government officials in how they handled the counterintelligence file involving Michael Flynn. However, there is no evidence that those actions implicate President Barack Obama or Vice President Biden personally, or discredit the legitimacy of the investigations of Russia’s 2016 election interference, the investigation of Trump campaign associates’ support for the Kremlin’s effort, officials’ requests to “unmask” a U.S. person appearing in intelligence reports who turned out to be Flynn, the FBI’s decision to interview Flynn, or the Justice Department’s charging Flynn for lying to the FBI.

That said, there has been a rush by many to say that no crime has been credibly alleged, and that no serious wrongdoing by former administration officials has been identified. That’s an oversight, and fails to grapple with a potential outcome: the prospect of well-founded criminal indictments against one or more former officials who leaked the content of the classified intercept of the Dec. 29, 2016 phone call between Flynn and Russian Ambassador Sergey Kislyak and Flynn’s identity in that communication.

As I’ll explain, the issue here is not limited to the initial leak by a senior government official to the journalist David Ignatius who revealed the Flynn-Kislyak phone call in the pages of the Washington Post on the evening of Jan. 12, 2017.

Independent observers and analysts should understand the strength of the allegations of misconduct, which could trigger criminal liability. Indeed, it is valuable to identify any credible complaints of official wrongdoing, and separate those from Trump’s deceptive and deliberately false accusations.

As for practitioners who are engaged in countering disinformation, they should consider how this foreseeable outcome of one or more criminal indictments will be used by Trump, his Attorney General Bill Barr, and the Director of National Intelligence (whether Rick Grenell or John Ratcliffe) to conflate truth and falsehoods. Indeed, the failure to have appreciated the seriousness of the allegations will bolster Trump and his surrogates’ disinformation campaign. It will be used to discredit analysts. They will be accused of dishonesty and bias, not just of an analytic oversight. More Americans will be encouraged to think of Trump and his political loyalists as validated sources of information. And the public will be left with even less ability to sort fact from fiction.

Indeed, a well-orchestrated disinformation tactic, pioneered by Soviet intelligence, would involve the following steps:

Phase One: Make grossly unfounded claims of misconduct by former and current US officials (such as a Deep State conspiracy to undercut the Trump 2016 campaign and the Trump presidency), anticipating a reaction among experts and partisans to challenge those claims;

Phase Two: Reveal true official misconduct that has some, even if limited, connection to the original conspiracy theory, with experts and partisans failing to adequately anticipate or recognize the true misconduct, and some even quick to dismiss it.

Phase One of this disinformation campaign is well underway.

How likely is a key step in Phase Two, namely, the genuine revelation of official misconduct? Barr’s handpicked federal prosecutor John Durham reportedly has in the crosshairs of his ongoing criminal investigation the leaks to the media. Attorney General Bill Barr has signaled confidence that Durham will find criminal wrongdoing (in gross defiance of long-standing Justice Department policy to refrain from any acknowledgement, let alone comments on the prospective outcome, of an ongoing investigation). What’s more, several former senior officials told Congress, under penalty of law, that they were not the source of the leak, either in closed testimony that the House Committee on Intelligence released last week or in prior public hearings. That may create another layer of legal vulnerability if a source of the leak denied it to Congress.

Phase Two: The Leak Investigation

The groundwork for phase two has been long in the making. A March 20, 2017 public hearing of the House Intelligence Committee with two witnesses – then-FBI Director James Comey and then-NSA Director Mike Rogers – raised concerns about the leaks of Flynn’s phone calls with Kislyak. Lawmakers directly and indirectly identified three news reports during the hearing. Here are the three reports including some passages added for context:

1. David Ignatius, Washington Post, Jan. 12, 2017:

“According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about ‘disputes’ with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.”

2. Greg Miller, Adam Entous and Ellen Nakashima, Washington Post, Feb. 9, 2017:

“Neither of those assertions is consistent with the fuller account of Flynn’s contacts with Kislyak provided by officials who had access to reports from U.S. intelligence and law enforcement agencies that routinely monitor the communications of Russian diplomats. Nine current and former officials, who were in senior positions at multiple agencies at the time of the calls, spoke on the condition of anonymity to discuss intelligence matters.”

3. Maggie Haberman, Matthew Rosenberg, Matt Apuzzo and Glenn Thrush, New York Times, Feb. 13, 2017

“But the conversation, according to officials who saw the transcript of the wiretap,  also included a discussion about sanctions imposed on Russia after intelligence agencies determined that President Vladimir V. Putin’s government tried to interfere with the 2016 election on Mr. Trump’s behalf. Still, current and former administration officials familiar with the call said the transcript was ambiguous enough that Mr. Trump could have justified either firing or retaining Mr. Flynn.”

It is important to stress what these news stories don’t say—not even close—that all these officials actually revealed to the reporters any new classified information.  Some of them might have discussed the information that the reporters told the officials they had, in order to provide context, etc., without disclosing anything new, or even without confirming the substance of the calls—something that happens routinely. Others might not have said anything at all about the substance of the calls. It is also important to note that the February news stories came after White House officials spoke on the record confirming the existence of the calls and discussing the content of the calls as well (including Vice President Mike Pence, Reince Priebus, and Sean Spicer).

To the extent there was an unauthorized disclosure of classified information to Ignatius or other reporters, that’s something none of us as former government officials entrusted with protection of classified information can defend. Indeed, several of the former senior officials testifying before the House Intelligence Committee referred to such leaks as outrageous, “illegal,” and a “serious crime.” And Senator Dianne Feinstein joined Senator Chuck Grassley in a bipartisan letter to Attorney General Jeff Sessions and FBI Director Comey on Feb. 15, 2017, in which the Chair and Ranking Member of the Senate Judiciary Committee wrote that “these reports raise substantial questions about the content and context of Mr. Flynn’s discussions with Russian officials … as well as possible leaks of classified information by current and former government employees.”

That said, the timing of all this coming to the fore with the Durham investigation is more than suspicious. Even if there were criminal misconduct involving the leak to the media over three years ago, ask yourself why the investigation just so happens to be heating up now as we enter the general election. And Trump and his surrogates have only now launched an effort to introduce Biden’s name into the unmasking narrative – blurring both the possible leaker with Biden and the legitimate practice of unmasking with the illegitimate practice of leaking. What’s more, now that the Trump campaign has explicitly asserted that this scandal directly implicates Biden, it should be more difficult for Barr and Durham to convince career Justice Department officials to go along with, and the public to accept, a violation of another long-standing Justice Department policy, which holds that the Justice Department should refrain from taking public action that could affect the outcome of an election. Durham, for one, should hesitate before going down this treacherous path.

Phase Two: The Unmasking Ruse

In laying the groundwork for phase two, some Republican lawmakers such as then-Rep. Trey Gowdy tied the leaks to unmasking from the start.

By way of background: The request to know the identity of a U.S. person appearing in multiple intelligence reports who turned out, upon unmasking, to be Flynn shows no evidence of wrongdoing by U.S. officials. The way in which some public figures – such as Senator Rand Paul — have spun the idea of unmasking as though it involves “warrantless” wrongdoing is extremely misleading and reckless. On the contrary, the variety of officials who were concerned enough about the intelligence they were reading to request the identity of the U.S. person likely indicates how much Flynn’s behavior alarmed an array of officials across different agencies.

That said, there’s at least a superficially plausible connection between unmasking of Flynn and the allegedly unlawful leaks. Those who obtained an unmasked transcript of the intercepted phone call might have had access to the very information leaked to the press. Along those lines, Rep. Trey Gowdy engaged in the following exchange with Comey during the March 2017 hearing:

GOWDY: So how would you begin your investigation, assuming for the sake of argument that a U.S. citizen’s name appeared in the Washington Post and the New York Times unlawfully. Where would you begin that investigation?

COMEY: You would start by figuring out, so who are the suspects? Who touched the information that you’ve concluded ended up unlawfully in the newspaper and start with that universe and then use investigative tools and techniques to see if you can eliminate people, or include people as more serious suspects.

GOWDY: Do you know whether Director Clapper knew the name of the U.S. citizen that appeared in the New York Times and Washington Post?

GOWDY: Would he have access to an unmasked name?

COMEY: In — in some circumstances, sure, he was the director of national intelligence. But I’m not talking about the particular.

Gowdy then proceeded to walk through a series of other former senior officials, asking whether each one would “have access to an unmasked U.S. citizen’s name.” Comey answered each in a similar fashion.

The official list of officials involved in unmasking Flynn, however, is not a reliable proxy for identifying suspects who may be responsible for the leak.

A threshold question first: There is good reason to think the declassified NSA list of officials who requested unmasking is completely disconnected from the intercepted call between Kislyak and Flynn on Dec. 29. As Marcy Wheeler and Ben Wittes have explained, the intercepted call appears to be an FBI—not an NSA—product. That would stand to reason if Kislyak (the actual target of the surveillance) was in the United States at the time (thanks to Asha Rangappa for raising this important point). [Update: The Washington Post confirms the summary of the Dec. 29 call was an FBI, not an NSA, product which openly included Flynn’s name — and thus there would be no reason for officials to request an unmasking from the NSA.]

There is good reason to think the declassified NSA list of officials who requested unmasking is completely disconnected from the intercepted call between Kislyak and Flynn on Dec. 29.

Even if the declassified NSA list somehow includes the Flynn-Kislyak calls, the list is both under-inclusive and over-inclusive. It is under-inclusive because a much larger group of officials in addition to the ones on the NSA list knew the details of the phone calls and that Flynn was the American on the call. That larger group includes lower-level and senior officials who participated in the FBI’s debriefing Justice Department officials about the Flynn phone call on Feb. 4 and Feb. 6. Several of those officials have been named in declassified congressional hearings and declassified FBI 302 interviews yet they do not appear on the NSA list. What’s more, Yates and McCabe each told Congress that when either a transcript or summary of the call was circulated, Flynn’s name was already identified—itself understandable, given that the FBI operates under different guidelines in such circumstances from those that apply generally to the intelligence community.

YATES: “When this information was provided to me, nobody was ever asking for his name to be unmasked. I was provided with the name in it.”

MCCABE: “I do not believe that that summary was ever masked. I’m also not familiar with any requests that we received to unmask anything. I’m not – I’m not aware that if we got one, it would strike me as unnecessary if nothing was masked.”

The list is also over-inclusive because many of the unmasking requests were made before Flynn and Kislyak’s Dec. 29 phone call occurred, and it’s not known whether requests after that date would be for different intercepted communications.

Finally, the unmasking is not well-connected to the leak — taking as our example Biden himself. Following the public release of the NSA list, multiple articles in the National Review and the opinion piece by the Wall Street Journal Editorial Board were quick to say that Biden’s office requested or “received” an unmasking of Flynn’s call on the same day that Ignatius’ story ran in the Washington Post (Jan. 12). But that was the date the “request was received” by the NSA, not when it was granted or obtained, according to the cover note by the head of the National Security Agency, General Paul M. Nakasone. Biden might have received the unmasked information only after the Post story published (indeed, the Post story might have inspired his office to initiate the request). We also don’t know whether Biden actually saw the unmasked name. “While the principals are identified below, we cannot confirm they saw the unmasked information,” the declassified NSA document states. Relatedly, as former acting C.I.A. director Michael Morell explained to the New York Times, an officer briefing a senior official may make the unmasking request, but that would be logged as a request from the senior official. We also don’t know whether the request from Biden’s office was even for the Dec. 29 call between Kislyak and Flynn. Finally none of this really matters when it comes to the leak. It has been known for years that Biden was informed about Flynn’s phone call with Kislyak on Jan. 5, 2017 when the issue was discussed in a pull-aside meeting in the Oval Office with Obama, Biden, Comey, Yates, and Susan Rice. That might cut against Biden in some fever dream of a conspiracy hatched against the Trump administration. It also shows that the quest for the list of unmaskers is a ruse. Biden, like many, many, many other officials at the time did not need to request unmasking Flynn to leak to the media. In fact, the smartest move for a leaker might have been not to submit a request. At bottom, the most plausible explanation of Trump, Barr, and now Sen. Lindsey Graham’s focus on “unmasking” is its service in the aid of a disinformation campaign to further Trump’s political ambitions.

* * *

At bottom, the key point here is not allowing anyone, especially including the President of the United States and his attorney general, to convince the American public that there is any scandal beyond what may have happened with the leak. Trump and Barr can be counted on to run the same playbook as they have before –a kernel of actual misconduct will be distorted by the Trump team and their congressional and media allies to make it look like an array of other activities that were actually legitimate appear illegitimate. Most memorably, when the DOJ Inspector General found wrongdoing in the Carter Page FISA surveillance applications, Trump and Barr distorted the IG’s findings to try to attack the legitimacy of the Mueller investigation. For now, Trump and Barr’s effort to rewrite the history of Flynn’s lying to the FBI looks like it may hit a brick wall in Judge Emmet G. Sullivan’s courtroom. The question is whether their deception may yet succeed in the court of public opinion.

In the final analysis, “Obamagate” should be best understood as the scandal in which a president manufactured false accusations against former government officials, including his political rival, using the full power of the Justice Department and Kremlin-style information warfare tactics to orchestrate it.

Photo Credit: Jim Watson/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).