Recently published documents indicate that the Federal Bureau of Investigations (FBI) unmasked former National Security Advisor Michael Flynn’s name in “unfinished” intelligence and disseminated that intelligence — likely a transcript of Flynn’s calls with a Russian ambassador — to then-Director of National Intelligence and a group of Obama White House officials, which then illegally made its way to the press.
According to former FBI Director James Comey’s interview with the House Intelligence Committee in March 2017, recently released as part of the DOJ’s motion to dismiss the case against Flynn, the FBI first collected and disseminated to the DNI some kind of “unfinished intelligence” of Flynn’s December 29, 2016, phone calls with a Russian ambassador — with Flynn’s name “unmasked,” or no longer shielded as “U.S. person.”
Comey told the committee that after the FBI found Flynn’s phone calls with Russian Ambassador Sergei Kislyak, he briefed it to then-DNI James Clapper and shared “copies” of the unfinished intelligence with Clapper. It is not clear who Clapper gave copies to, or what he did with those copies. It is also not clear what legal protocols Comey was using to share this information in this manner.
Comey did not say exactly when he saw and disseminated this intelligence to Clapper but indicated it was sometime between Flynn’s phone calls on December 29, 2016, and January 5, 2017 — by when he would have spoken to Clapper and Clapper would have briefed President Obama before a White House meeting on January 5, 2017.
Seven days later, details of that unfinished intelligence were illegally leaked to the Washington Post.
On January 12, 2017, Post columnist David Ignatius first reported that Flynn spoke to Kislyak “several times on Dec. 29,” floating a potential Logan Act violation.
Here is what Comey said about the unfinished intelligence he collected and disseminated during his interview with the House Intelligence Committee on March 2, 2017 (emphasis added):
And so the last couple days of December and the first couple days of January, all the Intelligence Community was trying to figure out, so what is going on here? Why is this — why have the Russians reacted the way they did, which confused us? And so we were all tasked to find out, do you have anything that might reflect on this? That turned up these calls at the end of December, beginning of January. And then I briefed it to the Director of National Intelligence, and Director Clapper asked me for copies which I shared with him.
In the first week of January, he briefed the President and the Vice President and then President Obama’s senior team about what we had found and what we had seen to help them understand why the Russians were reacting the way they did. We did not disseminate this in any finished intelligence, although our people judged was appropriate, for reasons that I hope are obvious, to have Mr. Flynn’s name unmasked. We kept this very close hold, and it was shared just as I described.
Former FBI Deputy Director Andrew McCabe also confirmed that the unfinished intelligence of Flynn’s calls either had his name already unmasked or that his identity was otherwise known — obviating the need for anyone to officially request to unmask him through normal protocols, according to an interview he gave the House Intelligence Committee on December 19, 2017, that was also recently published.
A House Intelligence Committee congressional staffer asked McCabe:
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.
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?
McCabe responded:
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…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.
Their testimony would explain why there were no requests for unmasking of Flynn’s name after his phone calls with Kislyak on December 29, 2016, through January 5, 2017, according to a list of unmaskers recently declassified by Acting Director of National Intelligence Richard Grenell.
Comey distributing unfinished intelligence with Flynn’s name to DNI and White House officials would explain a Washington Post February 9, 2017, report that said Flynn had discussed sanctions with Kislyak, citing “officials who had access to reports from U.S. intelligence and law enforcement agencies that routinely monitor the communications of Russian diplomats.”
The Post cited as its sources “nine current and former officials, who were in senior positions at multiple agencies at the time of the calls,” who “spoke on the condition of anonymity to discuss intelligence matters.”
The declassified unmasking list does not show nine individuals after Flynn’s call requesting unmaskings. It is not clear if all nine had seen the unfinished intelligence collected and distributed by the FBI, but “all” of them told the Post that “Flynn’s references to the election-related sanctions were explicit.”
It remains unclear when and how Comey unmasked Flynn’s name — if not through an official request that would have been listed in the declassified list of unmaskers. The list includes only one request for the FBI to unmask — on December 15, 2016 — two weeks before the December 29 calls.
It is possible that the unfinished intelligence said “U.S. person” and then-Obama officials knew it was Flynn, from a flurry of previous unmaskings they requested throughout December, but that would not explain why Comey testified that his people judged it was “appropriate, for reasons that I hope are obvious, to have Flynn’s name unmasked.”
Thus, it remains a question as to who initially unmasked Flynn’s name and how Comey was allowed to share that information to those who did not have to specifically request to unmask him, and why the unmasking request is not on the declassified list of unmaskers after the December 29 phone calls.
It also remains a question as to who exactly leaked the calls to the Post. Since the unfinished intelligence is still classified intelligence, sharing or speaking about it to the Post still would have been illegal.
Senate Judiciary Committee Chairman Lindsey Graham (R-SC) said recently he would hold hearings on the FBI’s investigation of the Trump campaign, including an “in-depth analysis of the unmasking requests made by Obama administration officials against General Flynn.”
“We must determine if these requests were legitimate,” he said.
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