Mike Pence, Star Witness

Despite strong recommendations from Vice President Mike Pence, then-Chief of Staff Reince Priebus, and White House Counsel Don McGahn during a February 10, 2017, conversation that the president immediately fire his then-National Security Adviser Michael Flynn, Trump still refused to do so, according to confidential White House records.

 

Earlier that day, Pence, Priebus, and McGahn had met in the Situation Room to read classified transcripts of Flynn’s conversations on sanctions with Russian Ambassador Sergey Kislyak. After reading those intercepts, the three men concluded that Flynn had lied to the American public, to the vice president, and perhaps even to the FBI. Pence, Priebus, and McGahn confronted Flynn before then recommending to Trump that Flynn be fired.

 

Trump would not undertake to do so—a refusal so inexplicable to the president’s men that they worried that he was protecting Flynn because he knew in advance of Flynn’s back-channel diplomacy with Russia, or had even authorized it, giving Flynn significant leverage over Trump, even the power to blackmail him, to keep his job.

 

Alarmed by Trump’s inaction on firing Flynn, two senior administration officials then arranged a leak to the press about Justice Department warnings to the White House concerning Flynn’s false statements in order to force the president’s hand. 

Earlier on February 10, Pence, Priebus, and McGahn had been able to read for themselves, for the first time, the top-secret transcripts of exactly what Flynn and Kislyak had said to one another, according to confidential government records. The transcripts of the intelligence agency intercepts were brought to the White House that day by then-FBI Deputy Director Andrew McCabe, according to the same records. McCabe wanted to be sure that the intercepts were secured in a Sensitive Compartmented Information Facility, or SCIF, to safeguard them: at the White House, one of the options was to use the Situation Room—and this was where Pence and the others sat and read the transcripts. The intercepts provided apparently incontrovertible proof for the trio that Flynn had lied to Pence, and possibly also to the FBI, about his conversations with Kislyak. Whatever lingering doubt the president’s men had that Flynn should not be fired was then gone.

As deputy FBI director, McCabe had been one of the federal law enforcement officials who had overseen the investigation of the Russian Federation’s covert program to interfere in the 2016 presidential election, including whether senior campaign aides to Trump conspired with Russian officials to help defeat Hillary Clinton and elect Trump, and whether Flynn had lied to the FBI during that investigation. McCabe was severely restricted in what he could say to Pence and the others because of the ongoing criminal investigation, but the little that he was able to tell them underscored what Pence and the others would learn from listening to the intercepts themselves: that the investigation of Flynn was a serious matter and that Flynn had been lying about his conversations with Kislyak. According to one former and one current federal law enforcement official, McCabe has told the special counsel, Robert Mueller, that he believes that his role in bringing the intercepts to the White House, and speaking to Pence, Priebus, and McGahn, may have been one more thing that caused Trump’s animosity toward him, and led to the president’s later efforts to attack, discredit, and lobby for McCabe’s subsequent firing. (A spokesman for McCabe would only refer me to this statement by him: “I sacrificed personally and professionally to help put the investigation on a proper course and subsequently made every effort to protect it.”)

Later on Friday February 10, after questioning Flynn, Pence, Priebus, and McGahn spoke with President Trump and advised him that Flynn “had to be let go,” according to confidential White House records. Despite this advice, Trump refused to commit to doing so. 

To the vice president, his chief of staff, and the White House counsel, the president’s refusal to fire Flynn was inexplicable. Priebus, McGahn, and a White House attorney named John Eisenberg, who had listened to the intercepts six days earlier, were concerned that Trump was protecting Flynn, and speculated among themselves and with their subordinates that this might be because the president knew in advance of Flynn’s dubious, back-channel diplomacy with Russia, or had even authorized it. Priebus and McGahn then shared their views with Pence. Their concerns were intensified because if this was the case, Flynn had significant leverage over Trump, even the power to subtly blackmail him, to keep his job. McGahn in particular had been warned earlier as well by the Justice Department that Flynn was susceptible to blackmail by the Russians because they had evidence that Flynn had been lying about his conversations with Kislyak.

Because of these extraordinary circumstances, some of the president’s men decided that they had to take extraordinary action. I have learned that, in order to force the president’s hand in firing Flynn, two senior government officials instructed aides over the weekend that followed to leak sensitive information to The Washington Post and other news organizations in order to underscore that Flynn had likely lied about his conversations with Kislyak, and that there were concerns at the highest levels of the Justice Department and the FBI about Flynn’s conduct. These two officials believed that they were, in the words of one person familiar with the effort, “protecting Trump’s presidency from himself” and the country’s “national security from the president.” I have no information that Vice President Pence was involved in the leaking of this information, but Pence had certainly by then become a strong advocate of Flynn’s firing and, together with Priebus and McGahn, was extremely frustrated that the president had taken no action.

Trump delayed an additional three days, until Monday February 13, before finally demanding Flynn’s resignation. But the leakers’ stratagem appeared to have worked, since Flynn was fired after a new Washington Post story facilitated by their leaked information had appeared. The very next day, February 14, the president met privately in the Oval Office with then-FBI Director James Comey and, according to Comey’s testimony to Congress, pressured the FBI director to shut down an investigation of Flynn.

This new information suggests that Vice President Pence could prove to be a crucial witness in Special Counsel Robert Mueller’s investigation into whether Trump obstructed justice. There is no evidence of wrongdoing by the vice president. If the special counsel questions him, it would almost certainly be only as a witness, and it is far from certain that he will necessarily be questioned by investigators.

The leading reason why Pence may be central to the special counsel’s obstruction investigation is that it’s not enough for prosecutors to prove that someone attempted to impede an ongoing criminal investigation; perjury and obstruction of justice cases depend largely on whether prosecutors can also demonstrate the intent or motivation of the person they want to charge. Prosecutors must convince a jury that there was “corrupt intent” on the part of the person charged with impeding a criminal investigation.

The president’s legal team has claimed that Trump did not break the law because he did not know that Flynn had lied to the FBI or was even under investigation by the FBI. Thus, they argue, the president had no ill-intent when he asked Comey to go easy on Flynn. In my prior reporting for the NYR Daily, I have disclosed new evidence that the president almost certainly knew both that Flynn was under criminal investigation and that Flynn had likely lied to the FBI—undermining the legal defense argued by the president’s attorneys. Previously undisclosed information in this story provides yet more evidence that Trump and his top advisers were well-informed about Flynn’s jeopardy.

All of this goes to the heart of the president’s intent and motivation when he allegedly pressured Comey to call the FBI off Flynn. The special counsel has zeroed in on the question of what the president knew and when he knew it. As a participant in crucial meetings that led to Flynn’s firing, Pence has vital information for investigators that can shed light on these questions. Several sources have made this point to me. “If they have a weak case, or circumstantial case, Pence can make it a stronger case,” one former White House official who has been questioned by the special counsel told me. “If they already have a strong case—which I believe they have—Pence’s testimony might elevate what they developed to an existential threat to Donald Trump and his presidency.”

*

Pence became involved in the Flynn matter for public relations reasons.

On December 29, 2016, the outgoing Obama administration imposed sanctions against the Russian Federation for covertly interfering with the 2016 presidential election in an effort to defeat Hillary Clinton and help elect Donald Trump. That same day, Flynn and Kislyak spoke by phone—conversations intercepted and recorded by US intelligence and law enforcement agencies. Flynn counseled that Russia should not retaliate against the US for the sanctions. (Flynn pleaded guilty in December 2017 to federal criminal charges that he had lied to the FBI when he denied discussing sanctions with Kislyak.)

On January 12, 2017, still during the transition, Washington Post columnist David Ignatius disclosed that US intelligence agencies had intercepted the phone calls, although Ignatius’s sources did not know the specifics of what either Flynn or Kislyak said.

Pence’s efforts to defend Flynn were largely on his own initiative. Pence was to appear on CBS’s Face the Nation and Fox News that Sunday and anticipated questions about Flynn and Kislyak because of the David Ignatius column. The vice president decided he wanted to talk to Flynn directly before saying anything, according to people familiar with the matter. Flynn categorically denied to Pence that he and Kislayk had ever spoken about sanctions, whereupon Pence repeated those denials to the national media. On January 15, he told CBS viewers:

I talked to General Flynn about that conversation… and actually was initiated on Christmas Day. He had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.  

Pence added: “Look, General Flynn had been in touch with diplomatic leaders, security leaders in some thirty countries. That’s exactly what the incoming national security adviser should do.”

On January 24, only four days into the Trump administration, Flynn was interviewed by the FBI as part of a federal criminal investigation into whether people associated with the Trump campaign colluded with Russia to help get Trump elected. Flynn repeated to agents the same lies he had earlier told Pence. (Flynn has since pleaded guilty to giving these false statements to the FBI.)

On January 26, then Acting Attorney General Sally Yates met with McGahn and relayed an ominous warning. Yates told him that US intelligence agencies had intercepted phone calls between Flynn and Kislyak, and that those intercepts showed that Flynn had indeed discussed sanctions with Kislyak. Yates pointed out that Vice President Pence, based on assurances Flynn had given him, had publicly denied that Flynn had discussed sanctions with Kislyak. This was something the Russians knew but Flynn would want to conceal, she warned, and this made Flynn “compromised” and vulnerable to blackmail.

Yates also told McGahn that same day that Flynn had been questioned by the FBI about his conversations with Kislyak. McGahn wanted to know whether Flynn had misled or lied to the FBI, as he had to Pence. According to Yates, she refused to answer directly because the matter was the subject of an ongoing criminal investigation. “Mr. McGahn asked me how he [Flynn] did [during his FBI interview],” Yates testified to a Senate Judiciary subcommittee in May 2017. “I specifically declined to answer that,” Yates explained to senators, because of the ongoing criminal investigation.

McGahn remembered that part of the conversation differently. As I first reported for the Daily, McGahn and three other attorneys working for the White House Counsel put together a confidential timeline of the events that occurred in the White House leading up to Flynn’s firing. The McGahn timeline memorialized what McGahn says Yates told him about Flynn’s FBI interview thus:

Yates… indicated on January 24, 2017, FBI agents had questioned Flynn about his contacts with Kislyak. Yates claimed that Flynn’s statements to the FBI were similar to those she understood he had [already] made to… the vice president.  

In other words, McGahn recorded that Yates had effectively confirmed to him that Flynn had lied to the FBI, a potential felony. According to White House records, this information was not shared with Vice President Pence for another ten days. But after speaking to Yates, McGahn did brief the president, according to government records and interviews. The special counsel has zeroed in on that meeting, sources tell me, because it goes to the heart of whether the president obstructed justice.

On or about February 2, as I have reported, John Eisenberg reviewed the highly classified verbatim transcripts of the intercepts. Then, on February 8, Priebus, McGahn, and Eisenberg met with Flynn. What prompted the February 8 meeting was an inquiry from The Washington Post, whose reporters were preparing a story about the intercepts. Priebus and Flynn were at a White House dinner together, according to the recollection of one person familiar with the matter, when Priebus learned of the Post’s inquiry. Priebus pulled Flynn aside to talk to him privately in a nearby vestibule. Priebus, in turn, contacted McGahn and Eisenberg, who joined them as well. Eisenberg bluntly told Flynn that he had read the transcripts and described for Flynn what they showed. Confronted with the evidence, Flynn changed his story. Priebus “asked Flynn whether Flynn spoke about sanctions on his call with Ambassador Kislyak,” according to a confidential timeline put together by the White House Counsel of the events leading up to Flynn’s firing. Under questioning by Priebus, Flynn said his “recollection was inconclusive,” a White House memo recorded. Flynn now said that “he either was not sure whether he discussed sanctions, or did not remember doing so.”

According to the memo, “Priebus specifically asked Flynn whether he was interviewed by the FBI. Flynn stated that FBI agents met with him to inform him that their investigation was over.” That claim was another lie: no FBI agents had returned to the White House to tell Flynn their investigation was over.

Apparently skeptical, Priebus stepped up his efforts to ascertain whether Flynn was under criminal investigation. The then-FBI Director James Comey happened to be at the White House on an unrelated matter; Priebus privately asked Comey whether Flynn was the subject of a FISA court warrant. FISA warrants are granted only when the court is presented with sufficient evidence that the person who would be the target of surveillance may be acting on behalf of a foreign power, which, in this case, meant that the president’s chief of staff was inquiring whether the FBI or other US law enforcement and intelligence agencies considered Flynn to be an agent of Russia. A FISA warrant would also have suggested that Flynn was possibly under federal criminal investigation as well, which would seem to indicate that Priebus and perhaps others were concerned that this was the case. Comey’s contemporaneous notes of his conversation with Priebus recorded:

[Priebus] asked me if this was a “private conversation.” I replied that it was. He then said he wanted to ask me a question, and I could decide whether it was appropriate to answer. He then asked, “Do you have a FISA order on Mike Flynn?”

Also of concern to Priebus was the question of whether Flynn was a rogue actor in urging Kislyak not to retaliate for US sanctions. If Flynn had acted on his own, that would have been distressing enough. But Priebus openly wondered to others whether or not the president himself had known about Flynn’s calls to Kislyak in advance, or directed Flynn to make the calls. Since that time, evidence has emerged that other senior Trump administration aides did in fact know what Flynn was doing.

Earlier that same day, February 8, Flynn was also being pressed by questions from the press about his conversations with Kislyak. Karen DeYoung, an associate editor and senior national security correspondent for The Washington Post, was at the White House and conducted an off-the-record interview with Flynn. Toward the end of their conversation, DeYoung asked Flynn if he had ever spoken to Kislyak about sanctions. Flynn, answered “No,” and then, “No” again when DeYoung restated the question.

Later that day, DeYoung called Michael Anton, a spokesman for the National Security Council, and, according to government records, asked if the Post could use Flynn’s denials on the record. At that point, Flynn realized that his denials were untenable, especially in light of Eisenberg’s having reviewed the intercepts on February 2, and learning that Pence, Priebus, and McGahn were soon to review them, too. Just as he had changed his story with the trio of senior administration officials who had interrogated him, Flynn now did the same with the newspaper, issuing a statement to the Post, via Anton, “that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

It was the Post’s pursuit of the story that caused Priebus, McGahn, and Eisenberg to spring into action that day. This meant that nobody in the White House had taken any significant action on the Flynn matter for some sixteen days since Yates’s warning, and a full week after Eisenberg’s review of the raw intelligence proving that Flynn had lied. On February 9, the Post published its story, which began:

National security adviser Michael Flynn privately discussed US sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former US officials said.

Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior US officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.

Extraordinarily, according to government records and sources, the first time that Pence learned that Flynn had lied to him was when he was shown this Post article online. Nobody had told him anything about Sally Yates’s meetings with McGahn on January 26 and 27, according to confidential White House records. Pence was then kept in the dark about Eisenberg’s review of the intercepts on or about February 2. And on February 8, when Priebus, McGahn and Eisenberg interrogated Flynn, Pence was still in the dark. The next day, Pence gave a speech at the US Military Academy at West Point, and it was only on the following day, after his return to Washington, that Pence received a full account from Priebus and McGahn of their belated fact-finding investigation of Flynn’s deceptions. This suggests another reason why Pence could be such a crucial witness to Mueller’s investigation: if the president and his aides deliberately withheld information from Pence, that might demonstrate a “consciousness of guilt” on behalf of the president.

Back at the White House on February 10, Pence had a chance meeting with Flynn. Pence confronted Flynn, asking whether Flynn had told him the truth about his conversations with Kislyak, according to people familiar with the encounter. Flynn then acknowledged that he had given Pence misleading information, but insisted that he had not done so intentionally, claiming that he had misremembered. 

Later that day, Pence, Priebus, and McGahn together questioned Flynn again, and then decided he had to go. Flynn persisted in equivocating about his recollection of his conversations with Kislyak, but insisted he had not purposely lied to the vice president or the FBI. Then he added that if he and the ambassador had discussed sanctions, “it was only because Kislyak brought up the subject.” Even this was a lie; the intercepts showed the opposite. Again, the president’s men were concerned about a possible FBI investigation of Flynn. According to a White House memo: “On the phone, Flynn is asked about the FBI investigation to which he says that the FBI told him they were closing it out.” As we have seen, another lie: the FBI had not closed out its investigation.

Pence, Priebus, and McGahn then spoke with the president. All three counseled Trump that Flynn should be asked to resign, or be fired, according to White House records. Pence “took the lead” during this discussion, one well-placed source with knowledge of the matter told me. The vice president was uncharacteristically outspoken during their conversation because he no longer had any doubt that Flynn had lied to him and had done severe damage not only to the White House’s reputation, but also to Pence’s personal reputation, according to two people familiar with the matter. Attempting to depersonalize the issue, Pence said that the issue was not only that he had been lied to, but that Flynn had embarrassed the president and the administration. But as one person familiar with this presidential discussion told me, it was also about Pence himself, who felt that “for the president to not care about that aspect of it was disrespect for the vice president personally.”

Pence came away from the conversation believing that Trump had committed himself to firing Flynn; Priebus and McGahn were less sure—and were frustrated that the issue was not finally resolved, according to a person who has spoken directly to one of the participants. Multiple sources have told me that Priebus had often believed that Trump had made a final decision on an issue, only to learn that Trump had changed his mind later, and, on some occasions, changed his mind yet again. “Nothing is done until it can’t be undone,” Priebus once explained to a subordinate.

That same day, then aboard Air Force One on his way to Mar-a-Lago with Japanese Prime Minister Shinzo Abe, Trump was asked about the Post’s report and responded: “I don’t know about that. I haven’t seen it. What report is that? I haven’t seen that. I’ll look into that.” Trump’s statement, of course, was patently false.

That Friday evening, Pence, Priebus, McGahn, and other administration officials watched on television as Flynn accompanied Trump and Abe to Mar-a-Lago. Based on their conversation with Trump earlier, the vice president and the others believed that the president might ask for Flynn’s resignation. The TV images of Trump, Abe, and Flynn together seemingly appeared as a continuous loop on cable television from Mar-a-Lago and, in the words of one person close to one of the White House principals, were seen back in Washington as “a personal taunt” from the president.

The following evening, Saturday February 11, the president and Abe had dinner on a terrace at Trump’s Mar-a-Largo Club, as other patrons gawked. In the middle of the dinner, someone in the president’s party opened up a laptop to view a test launch by North Korea of a ballistic missile that had just occurred. Trump, bizarrely, had turned his club into an impromptu situation room as he consulted with Abe and his own national security team regarding a response. Flynn stood directly behind Trump and Abe, whispering advice. It was clear that Flynn was very much still the national security adviser.

This was the catalyst that led to the two senior administration officials instructing two subordinates to provide details to the Post about McGahn’s meetings with Sally Yates (it is unclear whether these officials were the first to tell the newspaper this information or were simply confirming facts that reporters had already gleaned from other sources). One person with first-hand knowledge of the incident told me: “It was viewed as an effort to protect the president from himself and the Trump administration from itself.” The episode is strikingly similar to other recent reports in which senior administration officials worked behind the back of the president to frustrate his worst impulses.

According to the anonymous op-ed writer in The New York Times identified only as “senior official in the Trump administration,” a resistance movement inside the White House was “working diligently from within to frustrate parts of his [Trump’s] agenda and his worst inclinations.” “I would know. I am one of them,” this person explained. The president’s “erratic behavior would be more concerning if it weren’t for unsung heroes in and around the White House. Some of his aides have been cast as villains by the media. But in private, they have gone to great lengths to keep bad decisions contained to the West Wing,” the senior administration official wrote.

Bob Woodward reports in his new book Fear that the president’s chief economic adviser, Gary Cohn, swiped a letter off Trump’s Oval Office desk to prevent the president from terminating a bilateral trade agreement between the US and South Korea, which Cohn believed would have devastating economic consequences for both countries, as well as national security ones. (Cohn and Trump have both denied the story.)

In the case of the Flynn leak, the White House officials’ ploy appeared to work. Within hours of the Post story appearing on February 13, the president’s demanded Flynn’s resignation and Flynn quit as national security adviser. Before Flynn was fired, the president had a private conversation with Pence, during which Pence argued once again that they had little choice but to fire Flynn, according to White House records and a person familiar with the conversation. The next morning, the president cleared the Oval Office of his national security team so he could speak alone to then-FBI Director Comey. It was at this meeting, according to Comey, that President Trump pressured Comey to shut down the FBI’s investigation of Flynn. Comey has testified that the president told him: “I hope you can see your way clear to letting this go, to letting Flynn go.”

To date, Pence has played the part of deferential deputy to the president who, above all, demands loyalty from his subordinates. It is clear from this new account, though, that Pence interceded forcefully with the president about firing Flynn. There are few other people who know as much as Pence does about whether the president possibly broke the law. The president and his legal team have based their claim that Trump did not obstruct justice on the premise that Trump did not know that Flynn was under FBI investigation and did not know that Flynn had possibly lied to the FBI. Pence, according to the new information in this story, has some knowledge as to whether that is true. Pence also would have significant insight into the president’s frame of mind—his intent and motivation, the foundational building blocks of any obstruction case—when he allegedly pressured Comey to shut down his investigation of Flynn.

It is unclear whether what Pence might tell the special counsel is incriminating or exculpatory for the president, or some combination of the two. But the vice president is clearly the single most important witness to Special Counsel Robert Mueller’s investigation into whether the president of the United States obstructed justice who has yet to be heard from.