Top Story: Indictments Inbound

The first indictments of the investigation being conducted by Robert Mueller are going to be announced today. The targets of the Grand Jury are so far unknown. A good bet is Paul Manafort, who in July had his home raided and was told to expect an indictment. He is the subject of multiple investigations besides Mueller’s, including an FBI investigation into a series of wire transfers, which moved more than $3 million between 2012 and 2013.

Another possible target is former National Security Advisor Michael Flynn, who was fired by President Trump in May. His conflicts of interest, including failing to announce that he was working as a lobbyist for Turkey, raise serious questions. These are only the beginning of the indictments that Mueller will probably get through the Grand Jury.

The White House reaction has been both deafeningly loud and silent. While there has been no official comment on the news of indictments yet, Sarah Sanders, the press secretary, tried to deflect to the conspiracy theory of the day that it was Clinton who colluded with the Russians. How Clinton’s collusion was supposed to work is not explained. Roger Stone, an advisor to President Trump, was suspended from Twitter for a rant laden with obscenities aimed at CNN and its anchors for breaking the indictment story. Trump himself has been tweeting about the same conspiracy theories blaming Clinton, and finally implored someone to “DO SOMETHING”(sic). Whether this is another “will no one rid me of this turbulent priest” call to arms, or a pathetic attempt at getting something to happen when your party controls all three branches of government, we do not know.

We will know more today, when the indictments are announced.

Update 8:30 AM: Paul Manafort and his business partner have been ordered to turn themselves in.

Update 10:15 AM: Manafort and business partner Rick Gates have been indicted on 12 counts.

Top Story: Jared Kushner Reveals Nothing New

Today’s Top Story: Jared Kushner, senior adviser to and son-in-law of the President of the United States, asserted Monday that he “did not collude” with Russia during the 2016 Presidential campaign for Donald Trump. Speaking outside the White House, Mr. Kushner briefly reiterated that his business dealings were not fully reliant on Russian funding.

Jared Kushner’s statement reveals nothing that was not already known, and paints a picture of an overwhelmed, inexperienced individual thrust into a political environment where ignorance of the rules regarding foreign contacts is considered forgivable. However, we live in a system where ignorance of the law is no defense, and if anyone had access to legal advice, it was Jared Kushner, adviser to Presidential candidate Donald Trump.

Mentioned in Mr. Kushner’s public statement is that he attempted to create a dialogue between Trump’s transition team and the Russian government. As Torchlight previously reported, along with then-foreign policy adviser Gen. Michael Flynn, Kushner participated in an attempt to perform a function of the Executive branch of our government prior to actually having that authority. This back-channel communication is troubling for many reasons, including that it was meant to be kept secret from domestic national security and intelligence organizations by utilizing the foreign government’s facilities and communication systems.

Whatever consequences result from Jared Kushner’s contacts with foreign agents will undoubtedly stem from what was revealed in the closed-door interview with the Senate Intelligence Committee, also on Monday. Perhaps we will never know what was spoken about there, whether via omission by Kushner or inaction by the Senate investigators, but what we do know is that Jared Kushner remains deeply enveloped in the cloud of Trump-Russia suspicion.

How “Special” is the Special Counsel, Anyway?

On May 18, former FBI Director Robert Mueller was appointed as Special Counsel1 to investigate possible Russian interference in the 2016 presidential election. What precisely does that entail? What powers and authority will Mueller have? Where do they come from? And how much trouble could it mean for the Trump administration? Let’s take a look.

Mueller started his tenure as FBI Director on September 4, 2001, and immediately found himself both redirecting the agency to focus on counterterrorism and defending it against accusations that it failed to prevent the September 11th attacks. His performance was sufficiently well regarded that Congress unanimously extended his 10 year term until 2013, making him the second-longest serving FBI Director after J. Edgar Hoover.

Mueller was appointed to the Special Counsel role by Deputy Attorney General Rod Rosenstein, who is the ranking official on any Justice Department investigations into Russia’s involvement in the election since Attorney General Jeff Sessions recused himself on March 2 due to a failure to disclose key information about his own Russian contacts to Congress during his confirmation hearing. Rosenstein recently came to public attention when President Trump and his administration initially (but fleetingly) characterized Comey’s firing as a response to a memo Rosenstein wrote2 criticizing Comey’s statements regarding the FBI’s Clinton email investigation during the 2016 election. It has been suggested that Rosenstein’s decision to appoint Mueller may have been motivated by the resulting blowback. Regardless of the motivation, Rosenstein gave Mueller broad latitude in the appointment order. Mueller’s formal starting point for investigation are the interactions between Russia and the Trump campaign that Comey discussed before a House committee on March 20. However, the order explicitly notes the authority to investigate “any other matters within the scope of 28 C.F.R. § 600.4(a).”3. 600.4(a) grants:

“…the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.”

In addition, the order cites sections 600.4 through 600.10 as applying to the Special Counsel. Here are the highlights:

  • 600.4(b) grants Mueller the ability to request that the Attorney General (or in this case Deputy AG Rosenstein) expand his jurisdiction “to investigate new matters that come to light in the course of his or her investigation.”
  • 600.6 provides Mueller with broad independence: “the Special Counsel shall determine whether and to what extent to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities.”
  • 600.7 is the primary brake on Mueller’s actions, authorizing Deputy Attorney General Rosenstein to request an explanation of any individual step taken by the Counsel. Rosenstein is also granted sole authority to discipline the Counsel, or remove him for good cause.
  • 600.8 requires the Mueller to report to Rosenstein annually, as well as notify him of “events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.”4

To sum up, Mueller can follow his investigation pretty much anywhere he can convince Rosenstein to approve, and can largely direct it as he sees fit, but he has to report to Rosenstein annually and whenever something “urgent” crops up, and Rosenstein can call him to account regarding specific actions he takes.

A quick trip to Wikipedia shows that while 28 C.F.R. § 600 only dates from 1999, drafted by Janet Reno’s Justice Department to take over from rules in the expiring Ethics in Government Act, Special Counsels have been appointed to investigate presidential administrations many times over the last two centuries, investigating everything from Warren Harding’s Teapot Dome scandal, to Whitewater under Bill Clinton, to the Valerie Plame affair under George W. Bush. Of approximately 30 Special Counsels, over 20 have been appointed just since 1978,5 and three were eventually fired, most famously Watergate Special Counsel Archibald Cox. As an indication of how long these investigations can last, and how far they can spread, Ken Starr’s investigation into Whitewater began in 1994, was handed off to Robert Ray in 1999, and was officially closed in 2003. This was a nine-year investigation whose only substantive finding was that the President lied under oath three years after the investigation began, about the existence of an extramarital affair which didn’t even begin until the second year of the investigation.

So, with all of this enabled by the CFR, how might the investigation play out? We obviously don’t what Mueller might find, but there are several factors that could affect how his efforts proceed:

  • Mueller hits a dead end/paydirt: This is the simplest variable. If Mueller spends a year investigating and only discovers stupidity, bad luck, or individual venality in play, the entire investigation may come to an unceremonious end. On the other hand, any conclusive evidence that even a single member of the Trump campaign attempted to collude with the Russian government to influence the election could keep the investigation chugging along for years to come. 
  • The investigation expands: While Mueller’s initial investigation is limited to the events of the campaign and their influence on the election, his powers are such that if he finds concrete evidence of other illegality on the part of Trump or members of his administration (e.g. stronger evidence of: efforts of Trump’s extended family to profit from his presidency; violation of controls on classified information; conflicts of interest in setting policy and awarding of government contracts; conspiracy to hide mental or psychological incapacity of the President; etc.), they could be added to Mueller’s jurisdiction. Moreover, the longer the initial investigation lasts, the more likely any unrelated misdeed will get noticed. Again, remember Clinton was impeached over a misdeed that occurred three years after the start of the investigation which eventually reported it. 
  • The Trump administration tries to undermine the Special Prosecutor role: The CFR is simply the combined results of the formal rulemaking processes of all agencies in the federal government. It would certainly be possible for the administration to order a revision of the regulations governing the Special Prosecutor, possibly as part of a larger rewrite of Justice Department regulations intended to hide the change.
  • The Trump administration tries to undermine Mueller in the role: Reuters has already reported that the administration may attempt to challenge Mueller’s investigation based on ethics regulations in the CFR that bar newly hired lawyers from investigating clients of their former employers. This would be a bit of Bizarro-logic, as the rule is motivated by possible bias in favor of the client, and the issue here is that Mueller’s former firm represents Jared Kushner. Based on this tactical choice, the administration will presumably leverage any other regulatory tools it can find to limit Mueller’s reach. 
  • The Trump administration replaces Mueller’s boss: Since the CFR grants the Attorney General direct authority over Mueller, this is an obvious target. A nice bank shot would be to replace Sessions with somebody without his Russia-related baggage, which would eliminate the recusal which gave Rosenstein the authority to appoint Mueller in the Attorney General’s stead, without targeting Rosenstein himself. This might even be a logical outcome of Mueller’s investigation if Sessions gets dragged far enough into it. 
  • Congress cuts off funding: While the CFR grants the Special Counsel broad authority in staffing and resources, Congress still controls the purse strings. It would not be unprecedented for them to try to cut off funding for a specific policy or project that they disapprove of, particularly if they can include the funding cutoff in an omnibus bill, or one that is otherwise likely to be passed without a detailed review due to either size or speed.

If there’s any lesson that can be drawn from the history of Special Counsels, it’s that we really have no idea what may come of Mueller’s investigation. It seems hard to believe that nothing damning will come out if the investigation is allowed to run its course, but many assumptions about how our political system functions have gone the way of the dodo recently. The potential longevity of the investigation, the sheer variety of concerns that have emerged in just four months of Trump’s administration, and the range of political machinations which may come to bear on Mueller’s appointment and the investigation in general mean that the outcome of Mueller’s efforts is what a statistician might term a “high variance random variable.” We’re just going to have to wait and see, which is a strange thing to say in today’s accelerated political environment.

  1. ^ Frequently this role is also called Special Prosecutor.
  2. ^ It subsequently came out that Trump requested the memo to justify Comey’s already-planned firing.
  3. ^ CFR is the Code of Federal Regulations; section 600 deals with the appointment of Special Counsels.
  4. ^ “Urgent Reports” are defined in the US Attorney’s Manual at; they’re more or less what they sound like.
  5. ^ The year the previously mentioned Ethics in Government Act was signed into law.

Michael Flynn: A Turkish and Russian Agent in the White House

The story of Michael Flynn is the classic “rise and fall” narrative–except that Flynn rose, fell, rose again, fell again, and is still falling… and may yet avoid the ground. It’s a repetitious cycle of personal fortune that crosses administrations, involves multiple troubling foreign connections, and has resulted in myriad public and official investigations into his actions in the highest echelons of the American security apparatus. Few individuals have had even one ignominious career in government. Flynn–who went from a decorated Army officer to Director of the Defense Intelligence Agency under President Barack Obama before being forced out of that position for various management style disagreements to being a highly regarded advisor to President Donald Trump before resigning from the shortest term of any National Security Advisor in American history, at only 24 days on the job–has had two. The messiness of following the cyclical nature of this man’s history is readily apparent. For clarity, we are including a timeline of events regarding Michael Flynn at the end of this piece.

Looking at the wider picture of the connections to foreign influence in the Trump campaign and administration, we see many individuals that are not hiding their past dealings, but also some that have been. When so many of your campaign and administration’s key players have direct contact with Russians and Russian companies, including Trump’s son Donald Trump Jr., Trump’s son-in-law Jared Kushner, campaign manager Paul Manafort, Attorney General Jeff Sessions, Secretary of State and former Exxon CEO Rex Tillerson, foreign policy advisor for the campaign Carter Page, and of course Flynn himself, you don’t really have a firm standing to claim that you have no connections to Russia. Yet, that is exactly what Donald Trump has attempted to persuade the American public of time and again. The connections are well documented and extensive. It’s important to understand that the facts of a Russian connection to Trump have been a part of established knowledge for decades, but only now that there is the future of a presidency at stake have denials and obfuscation been issued from all those directly involved.

For Michael Flynn, what could have been an innocuous set of connections began to take an abrupt turn toward the immoral and illegal when, in September 2016 during the run up to the Presidential election, Flynn took the opportunity to be paid for work as a lobbyist for the interest of the Turkish government. The primary issue here is that Flynn did not disclose this information until months later, after attending many intelligence meetings. The connection required him to register as a foreign agent. A person who has recently received payment from foreign governments and corporations is generally considered not qualified for service in a president’s Cabinet, particularly at the highest levels of our national security apparatus. But this information did not stop Trump from nominating Flynn as National Security Advisor.

The National Security Advisor is an important role in any administration. The person assigned to this position is tasked with being the President’s chief advisor of all things coming from the intelligence community. In the past, the National Security Advisor briefed the President nearly daily and sometimes more often as needed. The position is not one that is confirmed by the Senate; rather, it is solely up to the judgement of the President who should fill the post. It is quite clear that any position in the U.S. government should be held by no one beholden to foreign interests. This allegiance is only that much more important when dealing with classified intelligence involving foreign actors and how our operatives are dealing with them. This is no place for someone who can be compromised by the very groups they are tasked with combatting.

What came to light next would spell the final straw for Trump to remove Flynn from his team. Flynn had met and discussed sanctions with Russian ambassador Sergey Kislyak well before Trump had been installed as the next President. This action is strictly reserved for the current administration, something Flynn clearly knew, as shown by his misleading statements about his repeated contacts with Kislyak. Those lies caused then Vice President-Elect Mike Pence to repeat the misrepresentations and therefore cause an embarrassment for the young administration once the truth had been revealed. Pence’s misstatements have been given as the reason for Flynn’s dismissal, but it must be noted that Mike Pence shares in the culpability here. Flynn told the Trump transition team that he was under investigation for his foreign lobbying a full two weeks before inauguration. Although Pence denies knowledge of this, the best case scenario is that he was being grossly negligent as the head of the transition team.

This explanation of who knew about the Flynn/Kislyak contacts and when takes as accurate the claims of the Trump administration, but those claims are not necessarily factual. It is questionable how much Trump and his associates were aware of Flynn’s Russian and other connections and when they became aware of them. We may never know the exact answers to the questions that all of this brings up, but investigatory pressure is being applied on this and many other worrying aspects of the Trump campaign and administration. There are four Congressional investigations running concurrently investigating Russia’s interference in the 2016 Presidential election: those pursued by the House Intelligence Committee, the Senate Intelligence Committee, the House Oversight Committee, and the Senate Judiciary Committee Subcommittee on Crime and Terrorism. All of these committees, headed by Republicans, are looking to take a back seat to the newly assigned Special Counsel Robert Mueller. Depending on the nature of Mueller’s investigation and the direction that electoral results begin to go, we may see these Congressional investigations either slow to a crawl or start digging deeper and faster than previously. It will truly be a political calculation based on whether the Republicans in charge of these committees see completing or delaying their tasks as most expedient for their own and their party’s future.

There is another path to the truth that we cannot discount or ignore: the press. As the White House continues to limit access to the organizations which thrive on it, the news media will crave the biggest headlines they can find on their own. Without steady, official communication from the administration, the leaks will increase in quantity and depth, and it’s anyone’s guess at to whether the Special Counsel or the press will find the truth first.

For Michael Flynn’s part, he has so far denied subpoena requests, invoking 5th Amendment protection, from the Senate Intelligence Committee for documents related to his Russian communications. This refusal is not unexpected and is not illegal, but it does raise more questions than it answers. What is in the documentation? Why would he need immunity to provide more information? Robert Mueller will undoubtedly include Flynn in his investigations and should be able to answer these questions.

Continuing their efforts, the Senate Intelligence Committee has now expanded their request with two new subpoenas and are calling into question whether Flynn and his companies, which are part of the subpoena requests, can legally block the acquisition of documents pertaining to an investigation when traditionally the 5th Amendment has been primarily used for personal testimony and not for the gathering of evidence in the form of documentation from a business entity. If it is determined that Flynn cannot invoke the 5th Amendment and still refuses to cooperate, he could be charged with contempt of Congress. While not carrying the same weight as contempt of Court in a criminal trial, contempt of Congress would still be something that a person under investigation for possible crimes would want to avoid, because being willing to push back this much on an otherwise simple request for documents indicates that there was wrongdoing being performed.Otherwise, why bother invoking 5th Amendment protection in the first place?

It is not entirely clear what motivations has led Michael Flynn down the path he has. Money is an easy answer, but it is rarely the only reason for a person in such a position in life to willfully act against the oath to their country that they have upheld for decades. Flynn appears to have seen his life’s work in military intelligence become twisted around in the world of politics. Once Flynn was ousted from the Obama administration, he seems to have opened himself up to manipulation from outside his own country, and used his previously earned prominence to continue his ability to influence politicians, only now with non-American interests guiding his actions. The resulting web of deceit seems to have caught up with Flynn, but it remains to be seen what the final outcome will be for him.

Michael Flynn: a Timeline of Known Events

  • 1981 – Graduates from University of Rhode Island and is commissioned as an Army second lieutenant in Military Intelligence.
  • Numerous deployments and command positions, including as director of intelligence for the Joint Task Force in Afghanistan and Iraq, then for United States Central Command, then for the Joint Staff, then for International Security Assistance Force – Afghanistan and Special Assistant to the Deputy Chief of Staff, then finally as Assistant Director of National Intelligence for Partner Engagement before his next assignment:
  • July 24, 2012 – 18th Director of the Defense Intelligence Agency, appointed by President Obama.
  • April 2014 – Forced out as Director of the DIA.
  • December 10, 2015 – Attends a celebratory gala for the 10th anniversary of the Russian-state television network Russia Today. Sits next to Vladimir Putin. Receives payment for his role in discussion that takes place in Moscow.
  • February 2016 – Begins advising Trump campaign on foreign policy and national security.
  • July 18, 2016 – Headlines first night of Republican National Convention with a speech that includes the encouragement of jailing a political opponent.
  • Beginning in August 2016 – Flynn is paid over $500,000 through his consulting firm lobbying on behalf of the Turkish government. This included speaking with the cousin of Turkish President Erdoğan. Flynn would later fail to properly disclose this information to federal ethics officials on a form despite being required to list himself as a foreign agent based on his taking money from another country to promote their interests, an action closely monitored in former American military members working in government.
  • Prior to November 8, 2016 – Russian Ambassador Sergey Kislyak begins a series of communications with Flynn, the contents of which were considered by senior U.S. officials as inappropriate and possibly illegal. The Obama administration decides not to bring this information into the light prior to election day.
  • November 8, 2016 – An essay by Flynn is published by The Hill (a political news outlet popular in D.C.), extolling Americans to support Turkish President Erdoğan’s wish to extradite Fethullah Gülen, an exiled Turkish preacher currently living in Pennsylvania. After the revelation of Flynn’s dealings with the Turkish government, The Hill would add the following Editor’s Note to the essay:

“Editor’s Note: On March 8, 2017, four months after this article was published, General Flynn filed documents with the Federal government indicating that he earned $530,000 last fall for consulting work that might have aided the government of Turkey. In the filings, Flynn disclosed that he had received payments from Inovo BV, a Dutch company owned by a Turkish businessman with ties to Turkey’s president and that Inovo reviewed the draft before it was submitted to The Hill. Neither General Flynn nor his representatives disclosed this information when the essay was submitted.”

  • November 8, 2016 – Donald Trump is elected President of the United States by a slim Electoral College victory.
  • November 16, 2016 – Flynn is selected to be Trump’s National Security Advisor.
  • November 30, 2016 at the earliest – Flynn is informed by the Justice Department that his various lobbying efforts are being investigated.
  • December 6, 2016 – Mike Pence is questioned about Flynn’s son’s role in the transition. As the transition team leader, Pence first denies the conspiracy theory spreading that the younger Flynn is on the team. Later in the day, Pence has to correct the story because the elder Flynn had asked for security clearance for his son without discussing the request with the transition team.
  • December 25, 2016 – Flynn texts Kislyak. According to Pence, they discuss Christmas and a plane crash.
  • January 4, 2017 – Flynn finally informs the transition team of the Justice Department investigation into his lobbying.
  • January 10, 2017 – Once again showing preference to the wishes of Turkey rather than the United States, Flynn opposes a military operation that was part of a plan to retake Raqqa, the Islamic State’s de facto capital.
  • January 20, 2017 – Donald Trump is inaugurated as the 45th President of the United States of America.
  • January 22, 2017 – Michael Flynn is sworn in as Trump’s National Security Advisor, a role that does not require Senate approval.
  • January 24, 2017 – Flynn is questioned by the FBI about his communications with the Russian Ambassador Sergey Kislyak. Flynn denies discussing American sanctions against Russia. The intelligence community had intercepted these communications, as they tend to with foreign agents, and their transcripts contradicted Flynn’s account.
  • January 26 – 27, 2017 – Acting Attorney General Sally Yates, an Obama administration holdover, informs Trump’s White House counsel Don McGahn about Flynn’s lies and that he is vulnerable to blackmail by Russia.
  • January 31, 2017 – Yates is fired by Trump (ostensibly for refusing to defend Trump’s travel and immigration Executive Order, commonly referred to as the “Muslim Ban.”
  • February 8, 2017 – Flynn denies discussing sanctions with Kislyak.
  • February 9, 2017 – Flynn’s spokesman changes his story to not having “recollection of discussing sanctions…could not be certain that the topic never came up.” Mike Pence learns of this change in story by reading the report from The Washington Post.
  • February 13, 2017 – Following the revelations from the Post of Sally Yates’ warning of vulnerability of blackmail, Flynn tenders his resignation, having spent a little over three weeks in his position.
  • March 31, 2017 – Michael Flynn’s attorney, Robert Kelner, writes in a statement to the House and Senate intelligence committees that “General Flynn certainly has a story to tell” but requests immunity in exchange. Both committees decline to offer immunity.

Here at Torchlight, we will strive to continue monitoring this situation and provide you with accurate and insightful commentary. Follow us on Facebook and Twitter, include us in your open tabs in your browser, and support us in any way you can so we can continue bringing you this important news coverage.