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Trump allies push 'Obamagate,' but record fails to back them up

NBC News logo NBC News 5/14/2020 Carol E. Lee and Tom Winter and Andrea Mitchell and Mike Memoli
Joe Biden, Barack Obama are posing for a picture: Image: Vice President Joe Biden speaks before President Barack Obama signs an executive order to reduce gun violence in Washington on Jan. 16, 2013. © Leigh Vogel Image: Vice President Joe Biden speaks before President Barack Obama signs an executive order to reduce gun violence in Washington on Jan. 16, 2013.

WASHINGTON — President Donald Trump and his allies have begun escalating their attacks against former President Barack Obama and former Vice President Joe Biden, the apparent 2020 Democratic nominee, by accusing them and other Obama administration officials of conspiring against Trump's first national security adviser, Michael Flynn.

Trump and his allies call it "Obamagate," and the claims are multifold: that Obama and Biden had advance knowledge of the FBI's plans to interview Flynn about phone calls he had with the Russian ambassador to the U.S. during the 2017 presidential transition period; and that Biden nefariously requested the "unmasking" of Flynn, who was an unnamed American who turned up in intelligence collected from the communications of foreigners under U.S. surveillance.

Former Obama administration officials say it is false that Biden or Obama knew in advance about the FBI's interview of Flynn, which took place four days after Trump took office — a contention that is corroborated by a review of the very documents that Trump and his allies are citing to bolster their claims.

The Obama officials also argue that there was nothing improper about requests, including from Biden, to "unmask" the name of the American who turned up in intelligence collected from the phone of Russia's then-ambassador to the U.S., Sergey Kislyak. Unmasking is a routine procedure approved each year by the National Security Agency for authorized purposes — amounting to several thousand requests each year.

The U.S. intelligence documents that were, in an unusual move, unclassified and given to the Justice Department on Wednesday detailed "unmasking" requests made after the November 2016 election through Jan. 31, 2017.

The documents included a letter from the head of the National Security Agency, Gen. Paul Nakasone, which said that the administration officials who had made the requests were authorized to receive the information, and that the requests had been reviewed by the NSA at the time to make sure they were appropriately justified.

Still, the president and his allies are using both issues as 2020 campaign cudgels against Biden. And they're citing them to bolster Flynn's effort to have a court throw out his guilty plea of lying to the FBI about his conversations with Kislyak, which included a request that Russia not respond to new Obama administration sanctions in retaliation for Moscow's 2016 election meddling.

Flynn, a retired Army lieutenant general, was fired less than a month after he became Trump's national security adviser for lying to Vice President Mike Pence and other senior White House officials by saying he hadn't discussed sanctions with Kislyak. Flynn later pleaded guilty to lying to the FBI about the same thing.

He's since asked to withdraw his plea, and a judge is weighing whether to grant the Justice Department's request last week to dismiss Flynn's case.

The Justice Department argues that the FBI shouldn't have conducted its Jan. 24, 2017, interview of Flynn, because the bureau was already aware through phone intercepts of what he had discussed with the Russian ambassador and there wasn't proper justification for continuing the investigation of Flynn. That request to dismiss, put forward by Attorney General William Barr, has been criticized by nearly 2,000 former Justice Department officials and hailed by Trump and his supporters.

Biden said on Tuesday that a couple of weeks before Trump's inauguration, when he was still vice president, he had no advance knowledge of the FBI's plans to interview Flynn but also that he knew there was an investigation into Flynn.

The Trump campaign has seized on both responses, which Biden gave during an interview with George Stephanopoulos on ABC's "Good Morning America."

Trump campaign manager Brad Parscale on Wednesday linked Biden's claim that he didn't know in advance about Flynn's FBI interview to his request to "unmask" Flynn.

In trying to make that connection, Parscale, in a statement, also used Biden's other response in his ABC interview to say: "We already knew Biden was briefed on the Flynn case before President Trump took office."

Biden was asked by Stephanopolous what he knew while in the White House "about those moves to investigate Michael Flynn, and was there anything improper done?" Biden responded, "I know nothing about those moves to investigate Michael Flynn." Biden later said he "was aware" of an investigation into Flynn.

Biden campaign spokesperson Andrew Bates attempted to clarify the former vice president's responses in a statement to NBC News on Wednesday night. "Vice President Biden did not have any knowledge of any criminal investigation into Michael Flynn," Bates said.

Bates issued a separate statement saying that "all normal procedures were followed" with the "unmasking" requests pertaining to Flynn and that "none of these individuals could have known Flynn's identity beforehand."

According to the intelligence documents disclosed Wednesday, the vast majority of "unmasking" requests by Obama administration officials that turned out to be Flynn occurred prior to his first December 2016 call with Kislyak. The process of unmasking occurs when an American communicates with a foreigner who is the subject of foreign surveillance. It does not involve surveillance of any U.S. citizen, such as Flynn.

By law Flynn's name was known only to authorized U.S. officials who receive intelligence reports, such as the president, vice president and other senior officials, after the NSA approved the request.

The meeting

The allegation from Trump and his allies that Obama and Biden had advance knowledge about the FBI's investigation into Flynn and the bureau's plans to interview him centers around a Jan. 5, 2017, meeting in the Oval Office. That meeting included Obama, Biden, then-national security adviser Susan Rice, then-FBI Director James Comey, then-Deputy Attorney General Sally Yates. This meeting has been publicly known since at least February 2018.

But it was brought back into the spotlight by Trump and his allies last week when the Justice Department's motion to dismiss the Flynn case included documents referring to this meeting.

And Trump's allies have been driving that narrative. During his ABC interview, Biden was asked how he didn't know anything about the FBI investigating Flynn when "you were reported to be at a Jan. 5, 2017, meeting where you and the president were briefed on the FBI's plan to question Michael Flynn over those conversations he had with the Russian Ambassador Kislyak."

That question was not accurate, according to a senior Obama administration official with direct knowledge of the meeting.

The official said the meeting did not include any discussion of an FBI investigation into Flynn or of FBI questioning of Flynn about his contacts with the Russians. The official says that Obama, Biden and Rice did not know at the time of the meeting about any law enforcement investigation into Flynn, and that Obama did not ask.

Interviews that special counsel Robert Mueller's office conducted with Yates and Mary McCord, who was acting assistant attorney general for national security in January 2017, also are at odds with the idea that the FBI interviewing Flynn was discussed during the Jan. 5 meeting.

The Mueller interviews

One of the primary documents that Trump allies are pointing to when they talk about "Obamagate" is Yates' interview with Mueller's team.

In her special counsel interview, Yates says the Jan. 5 meeting is when she first learned of Flynn's calls to Kislyak about U.S. sanctions.

She says that meeting began as a larger group in the Oval Office with Obama, Comey, then-CIA Director John Brennan, then-director of national intelligence James Clapper, then-national security adviser Susan Rice and other National Security Council officials for a briefing on Russia's interference in the 2016 election.

Yates says that at the end of the meeting Obama dismissed everyone except Comey, Yates and Rice. It's written in the special counsel's report on Yates' interview that Obama asked them to "stay behind."

Yates doesn't mention it in her interview with the special counsel's office, but Biden also attended the Jan. 5 meeting.

In her interview, Yates says that in the smaller gathering, Obama said he had "learned of the information about Flynn" and his conversations about U.S. sanctions with Kislyak. She says Obama specified he didn't want any additional information on the matter but wanted to know if, given the Kislyak calls, the White House should be treating Flynn any differently.

Yates says Comey mentioned the Logan Act (which bars private citizens from negotiating with a foreign government on behalf of the U.S.) but doesn't recall if he said there was an FBI "investigation" into Flynn. She says that Comey did not talk about prosecution in the meeting and that she was so surprised at learning of the Flynn calls with Kislyak that she couldn't remember Comey's response to Obama.

Yates also says that after leaving the Jan. 5 meeting, she asked McCord why she hadn't previously been made aware of what she learned in the meeting. Yates also told the special counsel that she didn't learn the FBI was interviewing Flynn until the interview was taking place on Jan. 24 — four days after Obama left office.

McCord, in her interview with the special counsel's office, corroborated Yates, saying it wasn't until Jan. 24 that Yates learned that the FBI was interviewing Flynn. She says Yates reached out to Comey that day to tell him she thought she had to tell the White House about the Flynn and Kislyak calls.

McCord's special counsel interview notes say that when Yates was meeting with senior Justice Department officials on Jan. 24 she decided it was time to notify the White House of Flynn's calls and decided it was the FBI's responsibility to do so.

According to the document, "Yates left the room to make the call to Comey and when she returned, reported that Comey told her he just sent FBI Agents to interview Flynn."

It says, "the DOJ group was 'flabbergasted'" at the news and added that Yates and other Justice Department officials were "annoyed" that Comey hadn't given them the opportunity to weigh in on the decision or offer any input on the interview's strategy.

Obama's role

The former senior Obama administration official with direct knowledge of the Jan. 5, 2017, meeting with just Obama, Biden, Rice, Yates and Comey said that it lasted 5 to 10 minutes and that Obama said at the start that he wasn't asking about any law enforcement issue.

According to the official, Obama said that, as president, he needed know whether he should tell Rice to withhold or be careful with any information she gave to Flynn about Russia, which is part of the typical transition process from one national security adviser to the next.

Obama said he was asking because of Flynn's relationship with the Russians.

Comey's answer to Obama's question about how much information to impart to Flynn is still classified.

But Rice spent about 12 hours briefing Flynn one-on-one during the transition, and gave him 100 separate briefing papers from Obama's National Security Council staff, the senior Obama administration official said.

Rice also wrote an email to herself on Jan. 20 — the day of Trump's inauguration — in which she detailed the Jan. 5 meeting. The reason she wrote the email, according to the former Obama official, was to make clear for the record that the meeting was about a national security inquiry, not about any investigation into Flynn.

In February 2018, Republican Sens. Chuck Grassley of Iowa and Lindsey Graham of South Carolina raised questions about Rice's email to herself, calling it "unusual."

Rice's lawyer responded at the time that "the Obama White House was justifiably concerned about how comprehensive they should be in their briefings regarding Russia to members of the Trump transition team, particularly Lt. Gen. Michael Flynn, given the concerning communications between him and Russian officials."

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