December 7, 2022

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Michael Flynn ignored official warnings about receiving foreign payments | Michael Flynn

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The defense department inspector general has uncovered evidence that Michael Flynn accepted hundreds of thousands of dollars from foreign interests and governments, despite repeated warnings by the DoD and the justice department that his conduct might be illegal, the Guardian can reveal.

After the retired general pleaded guilty in 2017 to federal criminal charges that he had lied to the FBI during its investigation of Russia’s interference in the 2016 presidential election, then-president Donald Trump, Flynn and their supporters claimed that Flynn was the victim of political persecution.

Flynn’s prosecution, they insisted, without evidence, was the result of a vast conspiracy by the FBI and US intelligence agencies to sabotage Trump’s presidential campaign and presidency. Trump pardoned Flynn in the final days of his presidency.

But while pleading guilty in 2017, Flynn also admitted to committing another crime: related to his acceptance of hundreds of thousands of dollars from the government of Turkey without registering with the justice department as an agent of a foreign government, which was required by law.

Now, according to people familiar with the confidential findings of the recently completed IG investigation, the Guardian can reveal Flynn was warned years earlier that his acceptance of foreign money and his not registering as a foreign agent likely would be illegal.

Moreover, Flynn’s conduct occurred while he was a private citizen, long before Trump became president. Taken together, this appears to constitute powerful new evidence discrediting Trump and Flynn’s claims of political persecution by those opposed to Trump’s agenda.

The new disclosures portray how a former military officer, despite his training to obey rules and orders, was instead driven by personal profit to break the law.

The Defense Intelligence Agency first warned Flynn in an 8 October 2014 letter, that his acceptance of foreign money might be a potential violation of federal law, as well as the emoluments clause of the US constitution, which similarly prohibits such foreign payments to government officials.

On 30 November 2016, the justice department separately warned Flynn he might be violating a federal law, known as the Foreign Agents Registration Act, or Fara, in relation to his work as a lobbyist for the Turkish regime of the strongman Recep Tayyip Erdoğan. The law required Flynn to register with the DoJ as foreign agent and truthfully disclose details of his lobbying work to DoJ as well.

Despite the DIA warning not to take foreign money, Flynn still accepted $45,000 from RT, a Kremlin-controlled media organization described by US intelligence agencies as the “Kremlin’s principal international propaganda outlet”, $22,000 from other Russian interests, and $530,000 to serve as a lobbyist for Turkey. And despite the warning from the justice department, Flynn did not comply with the Fara statute.

Michael Flynn as director of the Defense Intelligence Agency in 2014, the year in which he was warned that his acceptance of foreign money might violate federal law. Photograph: Lauren Victoria Burke/AP

Flynn resigned as DIA director in early August 2014. More than a year later, in December 2015, he accepted the payments from RT. From August 2016 until November of the same year, Flynn worked as an unregistered lobbyist for Turkey – while simultaneously serving as a foreign policy adviser to the Trump presidential campaign. On 18 November 2016, Trump, then the president-elect, named Flynn to be his national security adviser.

Because Flynn ignored the DIA’s warnings that his acceptance of foreign money would violate federal law, the DoD inspector general is currently making the case to the secretary of the army that Flynn be required to turn over to the US Treasury a portion of the proceeds that Flynn received from overseas sources. The IG contends that the payments were illegal under the emoluments clause, as interpreted by executive branch legal opinions, and related federal law.

This remedy would appear to be a civil one rather than criminal.

And as a result of ignoring the DoJ’s advice, the following year, in 2017, Flynn while pleading guilty to federal charges that he lied to the FBI during an investigation of Russia’s intervention in the 2016 presidential election, also admitted that he violated federal law in regards to his lobbying work for Turkey.

In its 8 October 2014 letter to Flynn, the DIA warned: “The Emoluments Clause … as interpreted in Comptroller General opinions, and by the Department of Justice of Office of Legal Counsel, prohibits receipt of consulting fees, gifts, travel expenses, honoraria, or salary by all retired military personnel” from foreign interests. The same letter said such payments would be a violation of federal law.

The emoluments clause of the constitution specifically prohibits any person “holding any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State”.

Subsequent executive branch legal opinions, and a federal law, prohibited retired military officers from accepting emoluments or compensation from foreign interests because the officers could be called back to active service at any moment, and thus considered to be a person holding an office of public trust.

Retired military officers such as Flynn can receive emoluments or foreign compensation if they first seek approval to do so from Congress, the secretary of state, and in Flynn’s case, as a retired military officer, the secretary of the army. But Flynn did not do so.

Clark Cunningham, a professor at the Georgia State University College of Law, and an expert on emoluments, told the Guardian: “There is little doubt that money received by Flynn to lobby on behalf of the Turkish government or to promote Russian interests would be considered emoluments”.

Flynn himself had originally solicited the ethics advice from the agency. The first sentence of the agency’s letter stated: “This letter responds to your request for a written opinion regarding the ethics restrictions that apply to your retirement from the United States Army.”

In May 2016, the chief of staff to former DIA directors, wrote to Flynn and other former DIA directors, to remind them that despite their retirement, they were still required to report any significant new intelligence information to the agency. Flynn’s acceptance of money from RT, and other Russian interests would surely have been of interest to the DIA, but Flynn withheld this information, documents show.

On 30 November 2016, the justice department in its own letter to Flynn, warned him that they had received information that Flynn “may have engaged in [lobbying] activities on behalf of the Government of Turkey”. DoJ officials then warned Flynn: “If such allegations are true, you may be required to register under the Act.”

A spokesperson for the DoD inspector general said in a statement that they had “closed our investigation” of Flynn on 27 January – having investigated allegations that “Flynn failed to obtain required approval from the Army and the Department of State before receiving any emolument from a foreign government-controlled entity”.

Michael Flynn with President-elect Donald Trump in December 2016, the month his nomination as national security adviser was announced.
Michael Flynn with President-elect Donald Trump in December 2016, the month his nomination as national security adviser was announced. Photograph: Jim Watson/AFP/Getty Images

The IG had since “forwarded several administrative matters by memo to the Acting Secretary of the Army for review and appropriate action”.

The spokesperson refused to say whether the inspector general will release a public report on its findings, as the DoD IG and other IGs throughout the government have routinely done in high-profile investigations.

The Washington Post first reported in March that the DoD inspector general had completed his investigation of Flynn. But details as to why the IG reached his findings, such as Flynn was warned before accepting hundreds of thousands from foreign interests might violate the law, have not been previously reported.

A year after being warned that such foreign fees might be illegal, Flynn accepted more than $45,000 to speak at a gala dinner in Moscow, hosted by RT (formerly known as Russia Today), at which he was seated next to Vladimir Putin. Flynn also accepted an additional $23,000 from other Russian interests.

After Trump was elected president, on 6 January 2017, the US intelligence community formally concluded that Russia had engaged in a covert intelligence agency campaign to help elect Trump and defeat Hillary Clinton, and that RT had played a vital role in that effort.

The late congressman Elijah Cummings, of Maryland, then the ranking Democrat on the House oversight and government reform committee, sounded a prescient alarm by pointing out that Trump had “selected as his national security adviser someone who had violated the constitution by accepting tens of thousands of dollars from a global adversary that attacked our democracy”.

Flynn only remained in office for 24 days. He was forced to resign by Trump after he admitted that he had lied to other senior administration officials – and the FBI – about conversations he had with the then Russian ambassador, Sergey Kislyak.

On 29 December 2016, the outgoing Obama administration had imposed sanctions against Russia for its covert interference in the 2016 presidential election. That same day, Flynn and Kislyak spoke by phone – conversations intercepted by US intelligence agencies. Flynn was overheard counseling Kislayk not to retaliate against the US for the sanctions.

Questioned by the FBI, Flynn denied that he had ever proffered such advice to Kislyak.

On 1 December 2017, Flynn agreed to plead guilty to federal criminal charges, as part of a plea bargain with special counsel Robert Muller, that he had “willingly and knowingly” made “false, fictitious, and fraudulent statements” to the FBI regarding his conversations with Kislyak.

As part of his plea bargain, Flynn also admitted to violating Fara, by not disclosing his work as a lobbyist on behalf of Turkey to the government.

In May 2020, the then attorney general, William Barr, ordered that Flynn’s conviction be vacated. On 25 November 2020, Trump granted Flynn a full pardon.