The official account of how the intelligence community gained the transcript of incoming National Security Adviser Michael Flynn talking to Ambassador Sergey Kisliyak on December 29th, 2016, surrounds “incidental collection” as a result of contact with an agent of a foreign power. Meaning the Flynn call was picked up as the U.S. intelligence apparatus was conducting surveillance on Russian Ambassador Kisliyak.
If this version of events is accurate, it falls under FISA-702 collection: the lawful monitoring of a foreign agent who has contact with a U.S. person. In order to review the identity of the U.S. person, a process called ‘unmasking’, a 702 submission must be made. That submission, the unmasking, leaves a paper/electronic trail.
In a 2017 congressional hearing, Senator Lindsey Graham asks Deputy Attorney General Sally Yates and former DNI James Clapper about this process. [Watch first 3 minutes]
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In the two years that have followed this testimony, despite the simplicity of the the process to discover the answer, we can identify no action taken (nor reports of action taken) that would deliver the answer as to: who unmasked General Michael Flynn?
My suspicion is there never was an ‘unmasking request’.
My suspicion is there was never an unmasking request because the collection was not incidental….
Because the intercept was not incidental.
The lack of incidental collection is why FISA-702 doesn’t apply; and why there’s no paper trail.
Now, I could be entirely wrong on this…. However, my hunch is the intercept was not ‘incidental‘ because the intercept was the result of direct monitoring and surveillance being conducted on Michael Flynn.
That typ of active surveillance can be done legally, through an active FISA surveillance warrant and wiretap; or illegally, by an unauthorized wiretap and no active FISA.
The bottom line question here is easy to reconcile as noted by Lindsey Graham. If there was not active surveillance on Michael Flynn, then a FISA-702 unmasking request exists.
This is not a difficult issue to identify and clear up; and could be discovered with a simple phone call to current DNI Dan Coats. Was there an unmasking request: yes, or no?
There are only three options:
- Incidental collection = unmasking request.
- Direct intercept / Legal = Active FISA Title-1 surveillance authority.
- Direct intercept / Illegal = Active surveillance without Title-1 authority.
#2 and #3 above would be explosive developments considering this was active surveillance of an incoming National Security Advisor of the opposing political party. If there was a pre-existing surveillance warrant on General Flynn, that’s a big effen’ deal.
However, of the two possibilities, #3 would bring down everyone involved.
First things first…. Was there an unmasking request? Yes, or No?
Senator Lindsey Graham asked this question two years ago. Graham is now the Chairman of the Senate Judiciary Committee with secondary oversight over the FISA court.
Prosecutor Brandon Van Grack filed a cover letter attempting to explain the reason for the Flynn interview on January 24th, 2017, and the official filing of the interview notes (FD-302) on February 15th, and then again on May 31st. To explain the delay, he claims the report “inadvertently” had a header saying “DRAFT DOCUMENT/DELIBERATIVE MATERIAL” (screen grab)
What the special counsel appeared to be obfuscating to the court was a process of deliberation within the investigative unit, headed by FBI Deputy Director Andrew McCabe, surrounding the specific wording of the 302 report on the Flynn interview.
Prosecutor Brandon Van Grack appeared to be attempting to hide the length of the small group deliberations. It seemed he did not want the court to know Andrew McCabe was involved in shaping how the fd-302 was written.
We know there was a deliberative process in place, seemingly all about how to best position the narrative, because we can see the deliberations in text messages between Lisa Page and Peter Strzok: See below (note the dates):
The text message conversation above is February 14th, 2017.
The Michael Flynn FD-302 was officially entered into the record on February 15th, 2017, per the report:
Obviously the interview took place on January 24th, 2017. The FD-302 was drafted on January 24th, and then later edited, shaped, and ultimately approved by McCabe, on February 14th, then entered into the official record on February 15th.
It was a deliberative document from the outset. Thanks to the Strzok/Page text messages we know the cover letter from the Special Counsel is misleading.
The Feb 15th, 2017, date was the day after McCabe approved it.
May 17th, 2017, Robert Mueller was assigned as special Counsel.
The FD-302 report was then re-entered on May 31st, 2017, removing the header; paving the way for Mueller’s team to use the content therein.
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