The official media account of how the intelligence community gained the transcript of incoming National Security Adviser Michael Flynn talking to Ambassador Sergey Kisliyak on December 29th, 2016, surrounds “incidental collection” as a result of contact with an agent of a foreign power. Meaning the Flynn call was picked up as the U.S. intelligence apparatus was conducting surveillance on Russian Ambassador Kisliyak.
If this version of events were accurate (it’s not), it would fall under FISA-702 collection: the lawful monitoring of a foreign agent (Kislyak) who has contact with a U.S. person (Flynn).
In order to review the identity of the U.S. person, a process called ‘unmasking’, a 702 submission must be made. That submission, the unmasking, leaves a paper/electronic trail. In a 2017 congressional hearing, Senator Lindsey Graham asks Deputy Attorney General Sally Yates and former DNI James Clapper about this process. [Watch first 3 minutes]
However, in the two years following this testimony, there was nothing that would deliver the answer as to: who unmasked General Michael Flynn?
The reason is simple, Flynn wasn’t unmasked – because he was under FISC authorized active surveillance. Here’s how we know.
♦ First, Lisa Page and Peter Strzok were watching that hearing where Senator Lindsey Graham was questioning Sally Yates and James Clapper. As they discussed in their text messages the issue of “unmasking” is irrelevant. “incidental collection” is the “incorrect narrative”:
♦ Second, more evidence of Flynn under active surveillance is found in the Mueller report where the special prosecutor outlines that Flynn was under an active investigation prior to the phone call with Ambassador Kislyak:
Mary McCord was the Assistant Attorney General in charge of the DOJ National Security Division, after John Carlin left in October of 2016. McCord would have signed-off on the Flynn FISA warrant, or any extension therein, throughout the Trump transition period.
[McCord was also the person who Sally Yates took with her to the White House to confront White House Counsel Don McGahn about the Flynn call and FBI interview.]
♦ Third, from the 2017 House Permanent Select Committee on Intelligence (HPSCI), when Devin Nunes was Chairman, the four targets of the Trump campaign -under investigation throughout 2016- were outlined:
SUMMARY: ♦In real time Lisa Page and Peter Strzok were saying the “incidental contact” (unmasking) narrative was incorrect. ♦Then Devin Nunes outlines the targets of the 2016 FBI investigation which included Flynn. ♦Then Robert Mueller says Flynn was under investigation prior to the 12/29/16 phone call with Kislyak.
Put it all together and…. (1) There was never an unmasking request because the collection was not incidental…. (2) Because the intercept was not incidental. (3) Because the intercept was part of the FISA court granting a surveillance warrant.
The lack of incidental collection is why FISA-702 doesn’t apply; and why there’s no paper trail to an unmasking request. The intercept was not ‘incidental‘ because the intercept was the result of direct monitoring and FISC authorized surveillance being conducted on Michael Flynn.
There are only three options:
- Incidental collection = unmasking request.
- Direct intercept / Legal = Active FISA Title-1 surveillance authority.
- Direct intercept / Illegal = Active surveillance without Title-1 authority.
All of the evidence from documents over the past two years indicates #2 was the status of Michael Flynn at the time of the Sergey Kislak call.
The incoming National Security Advisor of President-Elect Donald Trump was under active FBI surveillance as granted by the FISA court. That’s how the FBI intercepted the phone call with Sergey Kislyak and why there’s no unmasking request.
This doesn’t deal with the propriety of the FISA warrant, or the legal basis, the legal predicate that must exist prior to granting the FISA warrant. However, accepting that Michael Flynn was under court approved surveillance reconciles all the issues.
Additionally, this would explain two more issues. #1) President Obama warning incoming President Trump not to hire Michael Flynn as his Nat. Sec. Advisor; and #2) a very strong possibility that Flynn’s status is the redacted paragraph in the January 20th, 2016, Susan Rice memo.
At 12:15pm on January 20th, 2017, Obama’s outgoing National Security Advisor Susan Rice wrote a memo-to-self. Many people have called this her “CYA” (cover your ass) memo, from the position that Susan Rice was protecting herself from consequences if the scheme against President Trump was discovered. Here’s the email:
“On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.
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. He reiterated that our law enforcement team needs to proceed as it normally would by the book.
From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.”
[Redacted Classified Section of Unknown length]
“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 he would.”
Susan Rice ~ (pdf link)
I would suggest the redacted section relates to President Trump being under FBI investigation; and NSA Advisor Michael Flynn being under investigation and FISA surveillance. Hence the issues with “sharing information”.
While Michael Flynn being under active FISC authorized surveillance would indicate there’s no need for unmasking of Flynn, there would be a need for unmasking of everyone else captured within the Flynn surveillance. Hence the dozens of White House unmaskings identified by Devin Nunes in March 2017.
Additionally, Flynn being under FISA authorized surveillance still doesn’t excuse the leak -likely by Andrew McCabe- to the Washington Post about the phone contact between Flynn and Ambassador Kislyak on December 29th, 2016.
There are likely multiple FBI 302 reports on all sorts of contacts by Michael Flynn; as the FBI was investigating and updating their files.
This FBI surveillance background of Flynn would also reconcile another unusual date within the Mueller report. An FBI 302 written on January 19th, 2017, before the Flynn interview on January 24th, 2017, about Kislyak:
Flynn was under surveillance and the FBI reports on Flynn’s surveillance did not start with the January 24, 2017, interview of Flynn – As you can see above there are FBI 302 reports that preceded it. [h/t Techno Fog] This aligns with Lisa Page, Peter Strzok, Mary McCord, Devin Nunes and Robert Mueller all saying Flynn was under investigation prior to the 12/29/16 Kislyak call.
Lastly, release and unredact the Comey memos, and Flynn’s status under a FISA warrant is likely outlined by copious Comey CYA diary entries.