“Mr. Mueller, what did the intelligence community tell you, and when did they tell it?” Following recent developments involving former Trump official Michael Flynn, that question has surfaced as the most important query for Robert Mueller tomorrow when he testifies in back-to-back hearings before the House Judiciary and Intelligence Committees.
On Wednesday, when former Special Counsel Mueller appears before the joint House committees, Democrats will surely use the appearance to relitigate his 448-page report and attempt to inflict maximum damage on the president. But Republican committee members should focus instead on questions that will help Attorney General William Barr and Connecticut U.S. Attorney John Durham—whom Barr has charged with investigating the government targeting of the Trump presidential campaign—unravel what is colloquially known as SpyGate.
Mueller holds the key to the answers to myriad questions, such as why he failed to investigate whether Russia interfered in the 2016 election by feeding Christopher Steele fake intel. I previously detailed that disconcerting omission from the special counsel report as an important area of inquiry, along with several other areas on which Republicans should focus.
But in framing those lines of inquiry, I presumed the special counsel team had it all—all the intel, all the communications, all the evidence. That assumption now seems suspect.
The growing feud between federal prosecutors and Flynn, now represented by powerhouse attorney Sidney Powell, exposed the near certainty that the intel community withheld information from the special counsel team. About a week ago, federal prosecutors informed attorneys for Flynn’s former partner at Flynn Intel Group (FIG), Bijan Rafiekian, that they had classified information on Flynn that the government had not previously disclosed.
In a one-sentence statement, federal prosecutors told attorneys for Rafiekian that this information conected Flynn to Rafiekian’s co-defendant, Turkish fugitive Ekim Alptekin: “The United States government is in possession of multiple independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign without any reference to the defendant or FIG.”
This disclosure came mere days before Rafiekian’s criminal trial on charges that he conspired to act as an undisclosed agent for Turkey and to file false Foreign Agent Registration Act (FARA) statements began. (Rafiekian’s trial ended on Friday, but the jury has yet to render a verdict.) However, as I explained in detail last week, if the special counsel team working the Flynn and Rafiekian case knew of this information, the federal prosecutors would have disclosed its existence to Rafiekian’s legal team much earlier.
So, the implication? That the intelligence community withheld extremely relevant information from the special counsel’s office which had been explicitly charged with investigating not just Flynn’s contacts with Turkey, but also Rafiekian and Alptekin’s.
Proceedings in the Flynn case likewise indicate that intelligence agencies did not provide the special counsel’s office relevant information. This seems clear from the exchanges between federal prosecutors, Powell, and Judge Emmet Sullivan, who is presiding over the government’s case against Trump’s former national security advisor, during a late June hearing.
Mueller’s team had charged Flynn with making false statements to the FBI concerning his conversations with the Russian ambassador. Shortly after Flynn pleaded guilty to that charge, Judge Sullivan took over the case and entered a standing order directing the special counsel to provide “any evidence in its possession that is favorable to defendant and material either to defendant’s guilt or punishment.”
But during a status hearing last month, federal prosecutor Brandon Van Grack, who had also handled the case for Mueller before the special counsel team disbanded, told Judge Sullivan that “in terms of the information the government produced, there’s nothing that the government produced that’s classified.” Flynn’s new attorney Powell, though, told the long-time federal judge that she believed “most of the information I will need to review may be classified.”
This exchange raised the specter that the special counsel team had withheld evidence from Flynn’s former attorneys, because we know from Senate Judiciary Chair Chuck Grassley that the Defense Intelligence Agency held “a key piece of information” about Flynn that was classified, the disclosure of which “would be in the public interest, and in the interest of fairness to Lt. General Flynn.” Evidence “in the interest of fairness to Lt. General Flynn” would qualify as favorable evidence for purposes of sentencing Flynn, and would thus fall within Sullivan’s mandate that it be turned over. But since no classified evidence was provided, we know that it wasn’t.
Now, it may be that Flynn’s former defense counsel acquiesced in the special counsel’s desire to limit the information provided, and a defendant may waive access to required discovery. That scenario, however, would raise other questions, such as whether Flynn received ineffective assistance of counsel.
But now, given the recent developments in the Rafiekian case, there seems to be a more likely scenario: The Defense Intelligence Agency and other members of the federal intelligence community never provided the special counsel team the vast array of intel they had on Flynn. And if the intel community withheld information about Flynn, what else was withheld?
While Mueller will obviously (and appropriately) refuse to detail the classified information he received from intelligence agencies during tomorrow’s five-hour long public hearing, that should not stop Republicans from asking some foundational questions.
“Mr. Mueller, did you ask the CIA and DIA and other intelligence community officials for access to all information relevant to the special counsel investigation? Or did you rely on the intelligence community to provide what they believed relevant to your investigation? Do you believe you were provided access to all potentially relevant information? If so, how do you explain the belated disclosure in the Rafiekian trial?”
These questions will not require Mueller to stray from the content of the special counsel report—something he maintains he will not do—nor require the former FBI director to reveal classified information. Nonetheless, Mueller will likely find an excuse to refuse to answer the questions because tomorrow’s hearings aren’t about substance—they’re about show.