Brandon Van Grack (Credit: public domain)
(…) “I didn’t figure this issue out — I think the credit goes to Margot Cleveland at The Federalist — but Van Grack was not accurate in his unnecessarily precise drafting of the “Factual Statement” in support of the plea, especially given that he knew that there was “wiggle room” in the actual words used by Gen. Flynn in both the transcript of his calls with Kislyak, and his answers to the questions by the FBI agents as reflected in their 302.
In setting forth BACKGROUND FACTS — mostly unnecessary except to make reporters happy — with far more specificity than he needed, he wrote:
On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia…
By using that language, he has defined for all purposes thereafter what were the “sanctions” that were the subject of the order. He never says at any point later in the Factual Statement that the “sanctions” referenced in the Flynn-Kislyak calls were the same sanctions as outlined in EO 13757, or if they included some other actions that might generically be called “sanctions.” It would have been easy to do with just one sentence.
The problem is that the EO dealt with a series of very specific steps taken by the Obama Administration against Russian government interests. One thing the EO did NOT cover was the expulsion of 35 Russian diplomats thought to be Russian intelligence officers. Those expulsions were announced on December 29, the day after the EO.
While this might seem to be “picking nits”, the fact is that the document Van Grack drafted said term “sanctions” applied to a very specific thing — the steps set forth in the EO. That did not include the expulsions. The factual basis described Gen. Flynn’s denials that he talked about “sanctions” with the Russian Ambassador. But the comments he made during the phone call were about the “expulsions” when he made reference to asking the Russians to not “escalate” the matter, and to make any response “reciprocal.” Just before Flynn makes this comment, according to the summary, he mentioned to Kislyak that he understood the Obama Administration was going to “dismiss some number of Russians out of the country” — i.e., the “expulsions.”
Kislyak then comments on the fact that the GRU and FSB are “sanctioned” — which they were among the steps announced in the EO Van Grack referred to — making the two issues separate subjects in the call between Flynn and Kislyak — with them discussing briefly that the “sanctions” on the GRU and FSB would make it more difficult for the two groups to work with the US on Middle East and Syrian issues.
I’m not arguing that when Flynn was answering questions, in his own mind he was differentiating between “sanctions” discussions and “expulsions” discussions in the call with the Ambassador. What I am saying is that Van Grack made a stupid error in wanting to be overly precise in laying out his “gotcha” facts about the EO and “Sanctions” so he could make the Factual Statement as sexy for the press as possible. And it wasn’t just one instance. The Statement of Facts also says the following:
On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”)… to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions.
Is that a “generic” all-inclusive “sanctions” including the expulsions, or the “Sanctions” set forth in the EO as he specified earlier?
FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.
He conflated the two again and now confused it further because Flynn asked the Russians to respond to the exclusions in a reciprocal manner — not the EO 12757 as Van Grack had defined “Sanctions” to be. He repeats this same problem 2-3 more times.” (Read more: RedState, 6/12/2020) (Archive)