CABLE NEWS NETWORK, INC. et al v. TRUMP et al
Filing
3
LARGE ADDITIONAL ATTACHMENT(S) re 2 MOTION for Temporary Restraining Order filed by CABLE NEWS NETWORK, INC., ABILIO JAMES ACOSTA. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibit 12, # 7 Exhibit 13, # 8 Exhibit 14, # 9 Exhibit 15, # 10 Exhibit 16, # 11 Exhibit 17, # 12 Exhibit 18, # 13 Exhibit 19, # 14 Exhibit 20, # 15 Exhibit 21, # 16 Exhibit 22, # 17 Exhibit 23, # 18 Exhibit 24, # 19 Exhibit 25, # 20 Exhibit 26, # 21 Exhibit 27, # 22 Exhibit 28, # 23 Exhibit 29, # 24 Exhibit 30, # 25 Exhibit 31, # 26 Exhibit 32, # 27 Exhibit 33, # 28 Exhibit 34, # 29 Exhibit 35, # 30 Exhibit 36, # 31 Exhibit 37, # 32 Exhibit 38, # 33 Exhibit 39, # 34 Exhibit 40, # 35 Exhibit 41, # 36 Exhibit 42, # 37 Exhibit 43, # 38 Exhibit 44, # 39 Exhibit 45, # 40 Exhibit 46, # 41 Exhibit 47, # 42 Exhibit 48, # 43 Exhibit 49, # 44 Exhibit 50, # 45 Exhibit 51, # 46 Exhibit 52, # 47 Exhibit 53, # 48 Exhibit 54)(jf)
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Exhibit 11
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RU S S I A I NV E STI GATI O N
UPDATED DEC. 3, 2017
Did Trump Just Incriminate Himself by Saying
He Knew Flynn Lied to the FBI?
By Chas Danner
Oops?
One day after Michael Flynn pleaded guilty to lying to the FBI, President Trump seemed to
confess that he already knew about that when he fired Flynn back on February 13 — and may
have now incriminated himself by doing so.
Trump had originally said that he forced his former national security adviser to resign because
Flynn had lied to Vice-President Mike Pence about a December conversation with Russian
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ambassador Sergey Kislyak. On Saturday, Trump explained that he also did so because Flynn
lied to the FBI:
Donald J. Trump
@realDonaldTrump
I had to fire General Flynn because he lied to the Vice President
and the FBI. He has pled guilty to those lies. It is a shame
because his actions during the transition were lawful. There was
nothing to hide!
109K 12:14 PM - Dec 2, 2017
96.3K people are talking about this
Lying to Mike Pence or the FBI is undoubtedly a fireable offense, but only one of them is a
crime, and that’s a crucial distinction when considering what Trump did the day after Flynn’s
ouster. Former FBI director James Comey testified before Congress that on February 14,
President Trump took him aside and told him that Flynn had done nothing wrong in speaking
with the Russians and that he had fired him for misleading Pence. The FBI was already
investigating Flynn at that point, and Trump told Comey that, “I hope you can see your way
clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”
Comey didn’t let it go, and though he didn’t testify as to whether or not he believed Trump was
trying to obstruct justice, he did make it clear that he thought the president was trying to tell
him what to do. Trump eventually fired Comey, of course, and cited his disapproval with the
FBI’s investigation into Russia’s election-meddling as part of his rationale.
According to Comey’s testimony, Trump told him he believed Flynn had done nothing illegal.
According to Trump’s tweet on Saturday, that might not have been true, and thus Trump
might have been trying to get the director of the FBI to look the other way regarding a crime
by a top White House official.
Susan Hennessey
@Susan_Hennessey
This is a pretty substantial confession to essential knowledge
elements of an obstruction of justice charge.
Donald J. Trump
@realDonaldTrump
I had to fire General Flynn because he lied to the Vice President and
the FBI. He has pled guilty to those lies. It is a shame because his
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actions during the transition were lawful. There was nothing to hide!
19.3K 12:37 PM - Dec 2, 2017
7,446 people are talking about this
Now, Trump says — and especially tweets — a lot of stupid and/or demonstrably wrong things,
so it’s possible that Trump’s Flynn tweet was just some misguided attempt to retroactively
update his good judgment to fire Flynn. On the other hand, Trump’s tweets are now regularly
treated as official statements by both the White House and the judicial system — so Trump
might have some trouble walking this statement back, should Mueller and his investigators
choose to focus on it.
Legal experts who spoke with the Toronto Star’s Daniel Dale were already flagging the tweet
on Saturday:
“The question of whether Trump committed obstruction of justice when he asked Comey to
drop the investigation on Valentine’s Day will largely turn on Trump’s intent: was he just
trying to put in a good word for Flynn, or was he in fact trying to end a criminal
investigation?” [Harvard Law professor and former federal prosecutor Alex] Whiting said
in an email. “If he genuinely believed that Flynn did nothing wrong, that tends to support
the former interpretation. But if, as he now admits, he knew that Flynn had lied to the FBI,
a federal crime, then he knew that by asking Comey to drop the investigation, he was
seeking to end a meritorious criminal investigation.”
Others said that the tweet itself wasn’t enough to prove obstruction, but might have laid the
breadcrumbs to more evidence that could.
Adding to the confusion that typically follows Trump’s remarks, the Washington
Post subsequently reported on Saturday that Trump’s personal lawyer, John Dowd, said he was
responsible for crafting the Flynn tweet. If that’s true — and it’s not at all clear why any
competent lawyer would put those words in Trump’s mouth — the president could conceivably
pass the blame.
However, the White House hasn’t retracted Trump’s statement or deleted the tweet, which
you’d think they’d do if a staffer screwed up a tweet he had written while pretending to be the
president. Trump’s tweets have been deleted and replaced before, after all. Instead, the White
House tried to soften the impact by claiming that the president’s tweet was just
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acknowledging Flynn’s plea, not admitting prior knowledge. Along those lines, Dowd
unconvincingly told the Post that the tweet was paraphrasing a statement from another White
House lawyer, Ty Cobb, who said on Friday that Flynn’s false statements to the FBI “mirror the
false statements to White House officials which resulted in his resignation.”
According to the Post, “two people close to the administration described the tweet simply as
sloppy and unfortunate.” Here’s some word-choice sleuthing, too:
southpaw
@nycsouthpaw
We’re supposed to believe John Dowd wrote pled instead of
pleaded?
Donald J. Trump
@realDonaldTrump
I had to fire General Flynn because he lied to the Vice President and
the FBI. He has pled guilty to those lies. It is a shame because his
actions during the transition were lawful. There was nothing to hide!
25.2K 6:54 PM - Dec 2, 2017
7,429 people are talking about this
(If you want more linguistic analysis of the tweet, Ben Zimmer collected some for the
Atlantic.)
So Dowd is trying to take the blame, but that’s awfully convenient cover for one of Trump’s
more legally precarious tweets, and lawyers aren’t usually “sloppy” when it comes to
statements that might incriminate their clients.
And looking back at the timeline of Flynn’s FBI interview and firing, it is indeed possible that
Trump knew, as of the Comey meeting on February 14, that Flynn had lied to the FBI during
his January 24 interview.
Flynn’s possibly criminal lies didn’t become public knowledge until that news was leaked to
the media on February 16. But two days after Flynn was interviewed by the FBI, former Acting
Attorney General Sally Yates was alarmed enough by what she’d learned to warn White House
counsel Don McGahn that Flynn might have compromised himself by misleading Pence.
McGahn then followed up with Yates a day later to inquire as to what criminal statutes might
apply to Flynn. According to two sources who spoke with the New York Times, McGahn
apparently briefed the president on the matter, telling Trump “that it was his impression from
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Ms. Yates that the federal authorities were not pursuing a case against Mr. Flynn for lying to
the F.B.I.,” but it was not clear if Trump understood that to mean that Flynn had been cleared.
(McGahn, who has since tried to blame Yates for his ignorance, was reportedly interviewed by
Mueller’s investigators on Thursday.)
Either way, since Trump tried to pressure Comey to drop the investigation, the president
surely understood that the FBI believed Flynn may have committed a crime, even if he didn’t
explicitly understand at the time what that crime was.
What, if anything, Mueller decides to do with Trump’s Flynn tweet remains to be seen, but
considering Trump’s propensity to spout off against the wishes of his advisers and lawyers —
and the White House’s propensity to obfuscate in the aftermath — it’s difficult to believe the
tweet was anything better than an incompetent mistake. At worst, Trump just acknowledged
he knew Flynn committed a crime and inadvertently admitted he tried to cover it up.
We don’t even know what Flynn will reveal now that he is cooperating with Mueller, but
Trump and the White House already appear to be making unforced errors as a result.
This post has been updated to include additional analysis.
R EL ATED
A Brief History of Michael Flynn's Downfall
l
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