OBSTRUCTION PART II: Mr. Vice President, You Know More Than You Let On

In the new administration, embroiled in chaos of its own making, the attention of the press and public toward the conflicts and possible criminal conduct has largely centered on Donald Trump himself. Meanwhile, the culpability of Vice President Mike Pence in the controversies surrounding him has been largely ignored. It has become clear, however, that Trump’s Vice President has been directly involved in misleading the public, as well as in actual criminal conduct and coverup.

Since Trump asked Pence to be his running mate, Pence has been Trump’s close adviser and reliable booster. Yet he has tried to convince many in the public and the press: that he is “out of the loop”; that he did not learn until March, after the February 13 resignation of National Security Adviser Michael Flynn, about Flynn’s paid lobbying for Turkey and income from Russia; that Flynn lied to him when he said that he had not discussed sanctions with the Russian Ambassador, and that this lie was the reason Flynn was asked to resign; and that FBI Director James Comey was fired because of a recommendation from the Deputy Attorney General. These statements were untrue, and Pence knew it when he made them.

The evidence shows that Pence, in conjunction with others on Trump’s team, violated several federal criminal laws, such as 18 USC 371 (conspiracy), 18 USC 1505 (impeding investigations), 18 USC 1512[b][3] (witness tampering), and was involved in the commission of several other crimes, including 18 USC 2 (aiding and abetting), 18 USC 4 (misprision of a felony), and 18 USC 3 (accessory after the fact).

Pence’s Involvement in The Flynn Coverup

Pence was appointed chair of the Trump transition team immediately after the election, with responsibility for vetting executive appointments and staffing the future White House. Michael Flynn was also made one of several vice chairs while being designated as Trump’s future National Security Advisor. The evidence shows that Pence became aware of Flynn’s now well-known illegal lobbying work for Turkey, and the undisclosed income he received from Russia, almost immediately after becoming chairman of the Trump transition team.

What Flynn Did

 On election day, an op-ed written by Michael Flynn appeared in The Hill, in which Flynn, formerly a staunch opponent of Turkey’s Islamic leaning government, presented a forceful argument curiously in support of the increasingly authoritarian Turkish president Recep Tayyip Erdoğan. Within days, the press1 began to report that Flynn was working to promote the interests of the Government of Turkey, while serving as Trump’s national security and foreign affairs adviser. As Trump’s adviser, Flynn received classified national security briefings from the U.S. intelligence community. When asked if Flynn’s closeness to Trump helped him with getting his foreign lobbying work, his firm’s representative assured, “I hope so.”

Flynn’s arrangement with Turkey was illegal because he had not registered with DOJ as a foreign agent (18 USC 612) and because he continued to have a security clearance which required him to disclose foreign contacts and payments he received from foreign sources, which he failed to do. To the extent he later represented falsely that he had no business or financial relationships with a foreign government, he also violated 18 USC 1001 (falsifying or covering up a material fact). Flynn also had been advised of and intentionally failed to seek or obtain approval from the Department of Defense and the Department of State for the payments he received from both Turkey and Russia, in violation of both 18 USC 908 and the Department of Defense’s ethics rules under the Emoluments Clause of the U.S. Constitution.2

How Pence Was Involved

On November 18, 2016, the same day Trump designated Flynn as his future National Security Adviser, Rep. Elijah Cummings, Ranking Member of the House Oversight Committee, sent a letter to Pence as Trump transition chairman, drawing attention to some of these legal violations and questioning a speech Flynn had given in Moscow, in which Flynn was highly critical of the U.S. foreign policy. Pence acknowledged receipt of the letter and pledged to review it carefully.

On January 4, 2017, while being vetted for the position of National Security Adviser, Flynn informed Donald McGahn, the transition team’s lead lawyer, that he was under investigation for his work as a paid lobbyist for Turkey and that he might need to register as a foreign agent.3  McGahn’s responsibility as the transition’s lawyer was to report important derogatory information about persons being vetted for positions in the administration directly to the leadership of the transition, whose job it was to decide whether such information should disqualify that person from a position in the administration. As head of the transition team, the final responsibility belonged to Mike Pence.

A week after his disclosure to McGahn, Flynn intervened with the Obama administration to stop its proposed plan to arm Kurdish fighters in Syria. Flynn’s action was in line with the anti-Kurdish policy of the Turkish Government. By then Pence knew from multiple sources that Flynn was an agent for Turkey: Pence had received the warning letter from Rep. Cummings and McGahn’s report of Flynn’s disclosure, and was privy to this information by virtue of his position. Yet he chose to turn a blind eye to the fact that Flynn, the soon-to-be National Security Adviser, was being paid by Turkey to disrupt an American foreign policy, with life and death consequences. The risk posed by Flynn to national security was obvious, but Pence ignored it.

On January 12, The Washington Post reported that Flynn had phoned the Russian Ambassador “several times” on December 29, the same day President Obama levied sanctions against 35 Russian intelligence operatives in retaliation for Russian cyber interference with the 2016 presidential election. The next day, Reuters confirmed this, reporting that Flynn had made five phone calls to the Ambassador and raising the possibility that Flynn had discussed the lifting of sanctions, a violation of the Logan Act, the United States law that prohibits private citizens from interfering with US foreign policy.4 Responding to reports and questions from the press, Trump transition officials, including Mike Pence, gave conflicting and changing stories about Flynn’s calls, but consistently denied that Flynn had discussed sanctions with the Russian Ambassador.  

The charade continued, along with ramped up efforts to derail the Flynn investigation. On January 15, Pence gave a pair of interviews to defend Flynn. On CBS’s Face the Nation, Pence assured the American people that Flynn and the Russian Ambassador did not discuss sanctions, “They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia.” On Fox News Sunday, Pence affirmed, “I talked to General Flynn yesterday, and the conversations that took place at that time were not in any way related to the new U.S. sanctions against Russia or the expulsion of diplomats.”

Neither of these accounts is credible. This was five days before the inauguration. By then, Pence had been chair of the Trump transition for more than two months and had seen significant derogatory information about Flynn. He knew far more than he has let on. Given the facts already known to Pence, therefore, if he believed Flynn’s story, he did so uncritically and with conscious disregard for the previous red flags, explicit warnings, and the internal vetting disclosing Flynn’s involvement with the Russians and foreign government lobbying. Pence was also an attorney, Governor of Indiana, and a member of Congress for 12 years. He was neither inexperienced nor naive. The only reasonable  explanation for why Pence did not find Flynn unqualified  for a sensitive position in the Trump administration is that he put loyalty to Donald Trump and the Trump agenda before the national security of the United States; Pence was  complicit in covering up Flynn’s illegal activities.

Indeed, former FBI Director James Comey also testified before Congress that Michael Pence was aware of the concerns about Flynn’s Russia connections both during the transition — which Mike Pence directed — and during Flynn’s brief tenure in the administration. In her testimony before the Senate Intelligence Committee, Acting Attorney General Sally Yates explained that, on January 26, she informed White House Counsel Donald McGahn that Flynn had been caught in routine surveillance by the FBI talking to the Russian ambassador about sanctions.

The evidence shows that Pence learned of Sally Yates’ warning to the White House about Michael Flynn’s discussions of sanctions with the Russian Ambassador right away, not weeks later as he claimed, and that he continued to parrot the false White House story that Flynn was dismissed for lying to him. Indeed, although the White House had been warned by Yates, instead of firing Flynn or suspending his security clearance, the next day Flynn was in the Oval Office with Pence, Priebus, Bannon, and Spicer while Trump spoke to Vladimir Putin. Like Trump and other administration members, Pence has exhibited a bizarre lack of concern for the risk to national security Flynn posed, and he has failed to criticize or condemn Flynn for his actions.   

In March, speaking to Fox News host Bret Baier, Vice President Mike Pence claimed that he was just then learning that Mike Flynn had lobbied for the Turkish Government:

PENCE: Let me say, hearing that story today was the first I heard of it. And I fully support the decision that President Trump made to ask for General Flynn’s resignation.

BAIER: You’re disappointed by the story?

PENCE: First I heard of it, and I think it is an affirmation of the President’s decision to ask General Flynn to resign.

Pence’s obfuscation, misrepresentation, and participation were illegal. Pence knew about, did not report, and helped to cover up Flynn’s failure to register as a foreign agent (22 USC 612 [foreign agent registration]), receipt of foreign income without congressional consent (37 USC 908 [congressional consent prior to accepting foreign benefits]), and failure to disclose his foreign agency status and foreign income in applying for national security clearance (18 USC 1001 [making false statements]). Pence could be charged for: concealing a felony (18 USC 4 [misprision of a felony])5; helping a criminal avoid arrest (18 USC 3 [accessory after the fact])6; impeding or endeavoring to impede the FBI and Congressional investigations (18 USC 1505 [obstruction of justice])7; and agreeing with others to do any of these (18 USC 371 [conspiracy]).8

Pence’s Involvement in the Comey Cover-up

By all accounts, Pence knew from the start that FBI Director James Comey was not being fired for his handling of the investigation into Hillary Clinton’s e-mail server, yet that was the story line he fed to the public. According to The New York Times, Trump had been considering firing Comey, and he “burned” on watching Comey testify to the Senate Intelligence testimony about feeling “mildly nauseous” that his disclosure of the FBI investigation of Hillary Clinton’s email may have impacted the presidential election. He vented his anger to Pence, White House Counsel Don McGahn, and Jared Kushner, who supported firing Comey. Attorney General Sessions then instructed his deputy to come up with reasons for the firing, then five days later, Pence was with Trump when he made up his mind that Comey had to go.

Pence was part of a small group that prepared media talking points on the anticipated Comey firing. On Tuesday, May 9, the White House released Trump’s letter firing Comey and put out a false story: that Trump had simply acted on the recommendations of Deputy Attorney Rod Rosenstein and Attorney General Jeff Sessions. In the ensuing uproar on Capitol Hill, Mike Pence visited congressional Republicans, and during a seven-minute on-camera appearance, Pence insisted that Comey’s firing had nothing to do with the FBI’s ongoing investigation of the Trump campaign’s ties to Russia.

We now know that none of this was true.  In fact, less than 36 hours later, Trump gave an interview to NBC’s Lester Holt that contradicted Pence. “Regardless of recommendation, I was going to fire Comey, knowing there was no good time to do it.”

In the same breath, Trump further explained, “And in fact, when I decided to do it, I said to myself, I said, you know, this Russia thing with Trump and Russia is a made-up story.”

Meanwhile, Trump’s false suggestion that he fired Comey “because he wasn’t doing a good job” — and Pence’s similar argument that the Bureau needed new leadership — also fell apart. As Holt was interviewing Trump, Acting FBI Director Andrew McCabe was testifying on that subject before the Senate Intelligence Committee:

“I hold Director Comey in the absolute highest regard. I have the highest respect for his considerable abilities and his integrity, and it has been the greatest privilege and honor in my professional life to work with him. Also that Director Comey enjoyed broad support within the FBI and still does until this day.”

Pence’s complicity in the firing of Comey and cover up about the true purpose of the firing are separate grounds to support criminal charges for: impeding or endeavoring to impede the FBI and Congressional investigations (18 USC 1505 [obstruction of justice]); corruptly impeding the congressional investigations or attempting to do so (18 USC 1512[c][2] [obstruction])9aiding and abetting the commission of a crime (18 USC 2); accessory after the fact (18 USC 3); intentional concealment (aka “misprison”) of a felony (18 USC 4); and conspiracy with Michael Flynn and others to commit these offenses (18 USC 371). 

Pence, Trump and other administration officials have been thumbing their noses at the American people with their reckless disregard of the law and compromise of our national security.  Pence, who is also an attorney, was right when he observed, “The American people know no one is above the law.” By his own words, Pence must be held accountable.

 

 

Notes

  1. http://dailycaller.com/2016/11/11/trumps-top-military-adviser-is-lobbying-for-obscure-company-with-ties-to-turkish-government/?utm_source=WhatCountsEmail&utm_medium=ICYMI%20-%20Media%20-%20All%20Except%20Cons,%20Liberals&utm_campaign=ICYMI%20-%20Defense; http://www.politico.com/story/2016/11/donald-trump-turkey-lobbying-231354; https://www.yahoo.com/news/michael-flynn-key-trump-aide-sat-in-on-intel-briefings-while-advising-foreign-clients-004512931.html (last accessed 7/6/2017)

  2. When Flynn resigned from the Defense Intelligence Agency (DIA) in 2014, he received a letter from DIA advising him that retired military officers are prohibited from receiving payments or gifts from foreign government’s without first seeking and obtaining permission.. The letter stated, “The Emoluments Clause of the U.S. Constitution, Article I, Section 9, Clause 8…prohibits receipt of consultation fees, gifts, travel expenses, honoraria, or salary by all retired military personnel, officer and enlisted, regular and reserved, from a foreign government unless congressional consent is first obtained.” (emphasis in original)
  3. Under the Foreign Agents Registration Act (FARA), codified, at  22 U.S.C. §§ 611-621, individuals acting within the United States as agents of “foreign principals” to “register with the Department of Justice and file forms outlining its agreements with, income from, and expenditures on behalf of the foreign principal.
  4. Under the Logan Act, private citizens are barred from discussing foreign policy with any foreign government with the intent to influence the action of the foreign government in relation to any dispute with the United States.
  5. Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned […].”
  6. Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.”
  7. Whoever corruptly […] influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.” Pence could be charged as a principal or as an aider and abetter (18 USC 2 [acting in furtherance of the crime]).
  8. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, […].”
  9. “Whoever corruptly- […]

    (2)  otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,[…].”

By | 2017-07-12T12:58:34+00:00 July 12th, 2017|

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