The revelation that dozens of Obama officials sought to unmask the identity of Michael Flynn was definitely a bombshell that raises a ton of questions, but according to National Review’s Andrew McCarthy, there’s a huge hole in the story that has so far been missed.
Based on the unmasking list declassified by acting-DNI Richard Grenell, McCarthy says there’s no evidence of any request pertaining to the December 29, 2016, call between Flynn and then-Russian ambassador Sergey Kislyak. “Where is the record showing who unmasked Flynn in connection with his fateful conversation with Russian ambassador Sergey Kislyak? There isn’t one.”
According to McCarthy, the evidence suggests that Flynn’s call with Kislyak was likely not recorded by the FBI, but a different agency. “I suspect that’s because General Flynn’s identity was not ‘masked’ in the first place. Instead, his December 29 call with Kislyak was likely intercepted under an intelligence program not subject to the masking rules, probably by the CIA or a friendly foreign spy service acting in a nod-and-wink arrangement with our intelligence community.”
One theory is that Ambassador Kislyak was routinely being surveilled by the FBI and that Flynn was simply caught up in that surveillance, but McCarthy does not buy the theory. “If it were true, there would be a record of Flynn’s unmasking. DNI Grenell has represented that the list he provided to Senators Grassley and Johnson includes all requested unmaskings of Flynn […] Yet, it appears that not a single listed unmasking pertains to the December 29 Kislyak call,” he explained.
“There are no unmasking requests on December 29, the date of the Kislyak call. Nor is there one during the week after that.” The first request following that call came on January 5, 2017, by Barack Obama’s Chief of Staff Denis McDonough—which itself raises its own questions, especially since that was the same day Barack Obama discussed the Flynn surveillance with Joe Biden, Sally Yates, James Comey and Susan Rice. But, based on what we know about that meeting, Flynn’s identity was already known at this point—supporting McCarthy’s thesis that his name was never masked in the first place.
In fact, McCarthy’s belief that Flynn’s name was never masked doesn’t seem to be a hunch at all. Former FBI Deputy Director Andrew McCabe seems to have confirmed this theory during an interview in an executive session of the Permanent Select Committee on Intelligence on December 19, 2017:
Q: The prong that emerged was an investigation into whether or not there was quote-unquote “improper unmasking” by senior Obama administration officials, and that was premised on the leak of Mr. Flynn’s name in press reporting, I think beginning in a report by David Ignatius in The Washington Post, and then subsequent reporting. But all of it, this unmasking investigation was premised on what we have learned since, and your testimony is consistent with this, that there was never any intelligence product.
So no transcript or summary of conversations with Kislyak that were ever masked, and therefore, there were no unmasking requests that could have been made for these nonexistent reports.
80 we just want to make sure that we have for the record a clear as possible understanding of exactly what the product was that was created, how it was disseminated internally or discussed internally, and whether or not there was any unmasking linked to that report?
If you have anything else to add to that, but that was the reason for why I was asking the specific line of questioning.
MCCABE: I think your description is accurate. It’s probably a misnomer to refer to it as a product. It wasn’t an intelligence product as we use that term. There [long redacted sentence].
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.
McCarthy posits that Flynn’s call was surveilled by an intelligence operation that isn’t governed by the Foreign Intelligence Surveillance Act (FISA). This gives two possibilities: that the call was intercepted by the CIA, which is not governed by FISA, or by a friendly foreign intelligence operation. The latter is an interesting theory, but considering what we know about the Trump-Russia investigation, there’s ample evidence to support the fact that there were deliberate attempts to undermine the incoming Trump administration. Despite there being no empirical evidence of Trump-Russia collusion, the Obama administration sought surveillance requests through the FISA court—using the Steele dossier, which the FBI knew was Russian disinformation, to justify that surveillance.
The Obama administration’s initial applications to surveil the Trump campaign in June was rejected by the FISA court—a normally agreeable body that rarely rejects applications for surveillance. The Obama administration never had any justifiable reason to surveil the Trump campaign in the first place, so if the Obama administration was hellbent on surveilling the Trump campaign, which it clearly was, they needed to get around the FISA court—which wouldn’t approve their application to surveil the Trump campaign for another five months.
In the meantime, how do you get around the FISA court? Barack Obama had the power to do so himself.
Under 50 U.S. Code § 1802, the president can authorize electronic surveillance without a court order “to acquire foreign intelligence information for periods of up to one year” provided that the attorney general certifies that “the electronic surveillance is solely directed at … the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers,” or “the acquisition of technical intelligence … from property or premises under the open and exclusive control of a foreign power,” and that there is “no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”
Did Barack Obama himself order the surveillance (under the guise of investigating Russian interference in the election) in order to bypass the FISA court altogether?
If he did, that would explain the theory that Flynn’s conversation was intercepted as part of that surveillance, and why his name was never masked. The surveillance ordered by Obama would have been conducted by the CIA under Obama loyalist John Brennan—who suppressed intelligence that Russia actually wanted Hillary Clinton to win in 2016.
Let’s not forget that then-deputy Attorney General Sally Yates was unaware of the Flynn wiretaps until that January 5, 2017, Oval Office meeting, and was reportedly shocked that Obama knew what he knew about them. FBI Director Comey was aware of it, but did not brief the Justice Department on it—once again supporting the theory the intercepted Flynn call was not the result of surveillance that was eventually authorized by the FISA court in the Trump-Russia investigation.
It all seems to fit.
Matt Margolis is the author of Trumping Obama: How President Trump Saved Us From Barack Obama’s Legacy and the bestselling book The Worst President in History: The Legacy of Barack Obama. You can follow Matt on Twitter @MattMargolis