Did the Department of Justice leak or arrange the leak of Michael Flynn’s call with Sergey Kislyak to get around the FBI’s efforts to keep secret the investigation of Flynn?

One of the great mysteries of the Trump-Russia saga that remains unsolved three years later, or at least uncharged, is who leaked Gen. Michael Flynn’s calls with Russian Ambassador Sergey Kislyak.

As incoming national security advisor, Flynn spoke with numerous foreign officials in the lead-up to inauguration. This included a conversation with Kislyak on Dec. 29, 2016 in which they discussed, among other things, measures taken by the Obama administration (also on Dec. 29) to expel Russian agents and levy financial penalties in response to Russia’s “malicious cyber-enabled activities” relating to the 2016 election.

Russian President Vladimir Putin publicly responded to these sanctions the next day. He declined to escalate the situation, promised there would be no retaliatory expulsions, and said he would “take further steps towards restoring Russia-U.S. relations.” According to the Statement of Offense filed in Flynn’s criminal case, on Dec. 31, Kislyak “called Flynn and informed him that Russia had chosen not to retaliate in response to Flynn’s request.”

Meanwhile, President Obama’s Presidential Daily Briefing (PDB) staff wondered why Putin didn’t retaliate. Andrew McCabe, who was serving as the FBI’s deputy director at the time, maintains that the PDB staff requested information on Putin’s response. The intelligence community answered. It turns out they had information on Flynn’s calls with Kislyak.

McCabe wrote that he shared this information with FBI Director James Comey, who passed it on to director of national intelligence James Clapper. It was Clapper who informed President Obama. The Department of Justice had this information as well. In his book, “The Threat,” McCabe noted that “at Justice, one question arose: Was this a violation of the Logan Act?”

By then, the counterintelligence investigation of Flynn—which started months before the election—was well underway. And it looks like deputy attorney general Sally Yates was on the case. According to Byron York, Yates “told Congress that the Logan Act was the first reason she intervened in the Flynn case.” While the Logan Act may have been the reason she intervened, it appears she and other Department of Justice officials had been briefed “on the entire span of the FBI’s Russian election interference collusion investigations.”

While Yates was allegedly concerned about the “national security risks” from Flynn’s call and his “underlying conduct,” the FBI wanted to keep their investigation of Flynn secret. McCabe wrote: “We felt we needed time to do more work to understand the context of what had been found – we don’t just run out and charge someone based on a single piece of intelligence. We use intelligence as the basis for investigation.”

Yates and the DOJ disagreed. Likely concerned about having an ongoing counterintelligence investigation on the incoming national security advisor, Yates wanted to do something about Flynn as soon as possible. McCabe continued: “Justice was more concerned about doing something immediately. The department began pressing us to brief the president-elect’s team about Flynn. We were concerned that this might make it back to Flynn and destroy our ability to continue vetting the information quietly.”

The DOJ got their chance to push the FBI for action against Flynn when his call with Kislyak was leaked to Washington Post reporter David Ignatius. His Jan. 12, 2017 article states:

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act (though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about ‘disputes’ with the United States. Was its spirit violated?

Remarkably, the leak from “a senior U.S. government official” to Ignatius cites the same dead law the Justice Department and Yates were investigating—the Logan Act. And the leak to Ignatius aligned with the Justice Department’s pre-leak goal, as explained by McCabe, of “doing something immediately.” Once the leak took place, McCabe writes, Yates “felt very strongly that [the FBI] should inform the new administration about what [the FBI] had.” “The Threat” says Yates believed Flynn was now a national security vulnerability.

The FBI responded “to Justice’s sense of urgency by hastening the FBI’s own work” on Flynn, McCabe writes. High-ranking FBI officials, including McCabe, FBI general counsel James Baker, and others decided the agents would not warn Flynn that it was a crime to lie to the agents. They wanted Flynn relaxed.

This puts into perspective a Jan. 23, 2017 Washington Post article, published the day before Flynn’s fateful Jan. 24 interview with the FBI, which states that the FBI reviewed Flynn’s calls with Kislyak and “has not found any evidence of wrongdoing or illicit ties to the Russian government.” That same article quotes U.S. officials as saying that “Flynn himself is not the active target of an investigation”—a claim proven wrong by the inspector general’s Dec. 9, 2019 report on FISA abuse. Flynn had been an active target of a counterintelligence investigation since Aug. 16, 2016.

One has to question the timing and purpose of that report and whether it was used to further the FBI’s investigative goals. If the FBI wanted Flynn to be at ease during his Jan. 24 interview, that Washington Post article must have certainly helped. Flynn was by all accounts relaxed during the interview with the agents.

After Flynn’s interview, Yates and DOJ National Security Division (NSD) lawyer (and now Rep. Adam Schiff staffer) Mary McCord met with Trump’s White House Counsel Don McGahn on January 26, 2017. They alleged Flynn could be compromised by the Russians and hedged on whether Flynn lied to the agents at his Jan. 24, 2017 interview. Flynn resigned a few weeks later.

At the time of the leak of Flynn’s calls with Kislyak to the Washington Post, it appears that Tashina Gauhar handled the national security portfolio for Yates. DOJ records show Gauhar keeping Yates apprised of FISA court opinions and e-mails from Yates to Gauhar regarding FISA meetings in late January 2017.

According to NSD deputy assistant attorney general George Toscas, Gauhar had previously worked at the National Security Division and was formerly the deputy assistant general for the Office of Intelligence. “All aspects of NSD would go through” Gauhar, he said. She would have been the “go-between between NSD and the [DOJ] leadership offices.” It is the NSD’s Office of Intelligence that prepares and files all FISA applications. They would have handled the rumored Kislyak FISA warrants.

Gauhar eventually went to work under deputy attorney general Rod Rosenstein. She was present for the meeting between McCabe and Rosenstein, where Rosenstein allegedly “proposed that he could potentially wear a recording device into the Oval Office to collect evidence” on President Trump. She also coordinated talking points from Rosenstein to Lisa Page and FBI leadership immediately before Robert Mueller’s appointment as special counsel. (Gauhar has since left the Justice Department for the private sector. She has somehow escaped congressional questioning.)

Flynn’s lawyer Sidney Powell, in an October 24, 2019 court filing, alleged that Office of Net Assessment director James Baker “is believed to be the person who illegally leaked the transcript of Mr. Flynn’s calls to Ignatius.” So far this has not been confirmed by the government and Baker has not been charged.

Another theory should be considered. The Justice Department was investigating Flynn for a Logan Act violation and the FBI rebuffed their pleas to notify the White House of Flynn’s conduct. The facts outlined above present compelling questions that deserve answers from the Justice Department.

Did the DOJ—Yates, Gauhar, or anyone else—leak or arrange the leak of Flynn’s call with Kislyak to get around the FBI’s efforts to keep secret the investigation of Flynn? And did they confirm to the Washington Post that Flynn was under investigation for Logan Act violations?