Did White House Counsel Don McGahn Know Mike Flynn Misled The FBI? If So, How?

Attorney Donald McGahn leaves the Four Seasons hotel in New York, Thursday, June 9, 2016, after a GOP fundraiser. (AP Photo/Mary Altaffer)
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In their scramble to explain a President Trump tweet that seemed to inadvertently support obstruction of justice allegations against himself, sources close to the White House have put out new details about interactions between former Acting Attorney General Sally Yates and White House Counsel Don McGahn concerning former National Security Advisor Mike Flynn, according to reports by the Washington Post and CNN.

Both reports, however, highlight what appears to be discrepancy between McGahn’s account of their conversations, and what Yates and others close to her have said.

A key question is whether McGahn informed Trump — before Trump fired former FBI Director James Comey — that Flynn had given a false account to the FBI about discussing sanctions in a phone call with Russian ambassador Sergey Kislyak, and if so, how McGahn drew that inference.

Yates, who Trump fired from the DOJ for not defending his travel ban, said pointedly in congressional testimony under oath that she did not discuss with McGahn the content of Flynn’s FBI interview. Other sources backed up that claim in the Washington Post’s and CNN’s most recent reports.

Yet, Trump’s personal attorney, John Dowd, told the Washington Post that Yates indicated to McGahn that the FBI received “the same story [Flynn] gave the vice president.” Dowd said Yates stopped short of accusing Flynn of lying to the FBI.

“For some reason, the Department didn’t want to make an accusation of lying,” Dowd told the Post. “The agents thought Flynn was confused.”

An unnamed source described as “familiar with the matter” told CNN that based on McGahn’s conversation with Yates, McGahn told Trump that he believed Flynn had misled the FBI as well as Pence.

McGahn came to this conclusion, even as Yates had not shared “any description of what [the] FBI had asked Flynn or specifically what he had said,” as the source told CNN.

The White House attorney in charge of its response to Special Counsel Robert Mueller’s Russia investigation, Ty Cobb declined to comment on the discrepancy to TPM, citing his deference to Mueller’s investigation.

According to the timeline laid out by Yates’ testimony and by court filings related to Flynn’s plea deal with Mueller, Flynn was interviewed by the FBI on Jan. 24 about a Dec. 29 phone call with Kislyak. That was nearly two weeks after Washington Post columnist David Ignatius reported that the call happened, a period during which Vice President Mike Pence and other top administration officials denied that sanctions were discussed.

In court documents, Flynn admitted to lying to the FBI in telling agents then that they had not discussed sanctions.

According to Yates’ testimony to a Senate Judiciary subcommittee, two days after Flynn’s FBI interview she traveled to the White House to raise concerns that Pence had been provided false information from Flynn about Flynn’s call with Kislyak and that Flynn may be thus susceptible to Russian blackmail.

Yates and McGahn would meet again a day later to further discuss her concerns, and then on Jan. 30, she called McGahn to tell him that the underlying evidence about Flynn’s conduct was ready for him to come over and review.

Multiple times in her testimony, Yates said she declined to elaborate to McGahn on what Flynn had said in his FBI interview.

“I was intending to let him know that Michael Flynn had a problem on a lot of levels, but it wasn’t necessarily with respect to how he performed in the interview,” Yates said. “I was intentionally not letting him know how the interview had gone.”

Once Trump did begrudgingly fire Flynn — after reports that sanctions were in fact the subject of the Kislyak phone call — it was Flynn’s misleading of Pence, not the FBI, that was cited as the reason of his ouster.

The claim that others in the White House also knew he had given false info to the FBI was only made after Trump himself tweeted as such over the weekend.

Because Trump told Comey a day after Flynn’s firing that he hoped Comey could see a “way clear to letting this go,” according to a memo Comey wrote at the time, the apparent admission that he did in fact knew Flynn lied to the FBI at the time seemed to bolster the perception that the FBI’s interest in Flynn played a role in Trump’s decision to fire Comey.

Trump’s tweet prompted a whirlwind of spinning from Trump’s allies. Dowd claimed to multiple outlets that he had authored the tweet, not Trump, while acknowledging that it was sloppily worded. Dowd also told Axios that the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”

On late Sunday, the Post would publish its report citing Dowd with the claim that McGahn had informed the President that Flynn had told Pence and the FBI the same story about the phone call after his meetings with Yates.

The Post noted how his account varied from her testimony, as well as from the Post’s own reporting in February:

According to several current and former law enforcement officials who spoke to The Post in February, Yates told McGahn that Flynn had discussed sanctions against Russia in his phone calls with Kislyak, was compromised because he had lied about this to the vice president, and could be vulnerable to blackmail, according to the officials.

She also told McGahn that Flynn had been interviewed by the FBI two days before, the officials said. When McGahn asked her how he did in the interview, Yates did not respond, according to the officials who spoke to The Post. She later testified the same thing at a Senate hearing in May.

Dowd did not respond TPM’s inquiry on how his account jibed with her claims of not discussing with McGahn what Flynn told the FBI.

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