Lawyers have dominated the discussion ever since former national security adviser Michael Flynn entered into a plea agreement with special counsel Robert Mueller Friday. Everyone wants to know: Who will Mueller charge next, and with what crime?
But lost in this whirlwind of legal speculation is an important detail in Flynn’s plea: The Trump transition team’s response to the Obama administration’s expulsion of 35 Russian diplomats last December. The secretive actions Flynn and others took following these sanctions reveal a fundamental breach of public trust that cannot be overlooked in the frenzy to find criminal wrongdoing.
I know firsthand from my experience working counterintelligence investigations for the FBI that kicking a diplomat out of the country is no small thing. The process of expelling a diplomat is called “PNG”-ing, which stands for declaring the individual a “persona non grata.”
Diplomats, who are visiting dignitaries, typically receive the highest level of courtesy from the host government and enjoy diplomatic immunity — so a PNG is the harshest punishment the U.S. can give a diplomat, and is only done in the most serious cases. Because it is also highly embarrassing for the country being reprimanded, it is also usually done very quietly.
The FBI gets involved in PNGs because it monitors foreign intelligence activity in the United States as part of its counterintelligence mandate. Most foreign spies come to the U.S. under diplomatic cover (which, as noted above, affords them immunity if they engage in illegal acts). While most often the FBI’s goal is to quietly “neutralize” their activities, sometimes the actions taken by a foreign intelligence service are so egregious that the FBI makes a request that the spy be removed from the U.S.
However, the process is very difficult. PNG-ing a spy has repercussions that impact other government agencies and missions. Usually, for example, a country will retaliate against a PNG by doing a tit-for-tat expulsion of one of our diplomats — likely a CIA officer under diplomatic cover there. This disrupts our intelligence collection efforts abroad. The PNG may also hinder diplomatic efforts that may be in progress with the country through other channels.
As a result, a PNG request involves a tug-of-war between the FBI, the CIA and the State Department (with the final decision taken by the White House), and is most often denied. Of the cases I was involved with, the only time a PNG was approved was when allowing the spy to remain would have resulted in actual physical harm to a U.S. person.
This is the complex process and very high threshold to keep in mind when looking at President Obama’s actions against Russia last December. In response to Russia’s election hacking, the U.S. expelled not just one, but 35 spies posing as diplomats — the strongest response ever to a cyberattack against the U.S.
In addition, President Obama made a public statement on the expulsions, calling them a “necessary and appropriate response to efforts to harm U.S. interests in violation of established international norms of behavior.” Both the magnitude of the sanctions and the public condemnation by the president was intended to send as sharp a rebuke as possible to Russia’s attack on our democracy.
As Flynn’s plea deal reveals, the Trump transition team immediately made a concerted effort to undermine the signal that the United States was sending. In particular, Flynn, with the approval of “senior transition officials” (identified in reporting as Jared Kushner and Katie McFarland), sought to discourage Russia from escalating the situation. Flynn reportedly promised that the Trump administration’s foreign policy goals would be more conciliatory.
By relaying this message covertly (and in spite of a "pointed request" by the Obama administration to avoid sending mixed signals to foreign officials), the Trump team negated the message being sent by the United States to Russia — and effectively put its stamp of approval on Russia’s efforts.
The repercussions of the Trump team’s covert efforts are not merely symbolic; they have also had serious long-term consequences on our intelligence capabilities against Russia. After secretly “reassuring” Russia that it need not worry about facing consequences, the Trump administration did not deliver. In July, Congress passed (and the president after much delay signed) a sanctions bill against Russia. Putin, either angry for being misled or having to save face from taking no action at all in December (or both), retaliated much more forcefully than he likely would have otherwise. Russia expelled 775 American diplomats in response, severely crippling our intelligence and diplomatic apparatus in that country.
The White House has argued that the incoming Trump administration was merely engaging in “normal outreach” with a foreign power. But this is belied by the fact that every person involved with the campaign and transition subsequently denied having any contacts with Russian officials — even to Congress and FBI.
In fact, this pattern of deception helps explain why Obama took the step of PNG’ing so many diplomats at all, and at such a late stage in his administration. If the intelligence community by November believed (correctly, in retrospect) that evidence of Russian election hacking and interference might be denied and even “buried” by the incoming administration, a strong public stance was necessary. It’s telling that the FBI, CIA and NSA issued their own unclassified public report of Russian election meddling eight days later, on Jan. 6, 2017. Had Obama and the intelligence community not taken these actions, it’s possible that the American public would still be in the dark about Russia’s active measures.
Focusing on whether the Trump campaign and transition team broke the law misses the bigger picture. By secretly sabotaging a measure designed to protect America’s sovereignty in the face of a foreign attack, these individuals acted against the interest of the United States and aided our adversary. Now they are the stewards of the country and its institutions. Whatever happens in a court of law, that is what should concern us all.
Asha Rangappa is a former special agent in the Counterintelligence Division of the FBI in New York City. She is a senior lecturer at Yale’s Jackson Institute for Global Affairs. Follow her on Twitter @AshaRangappa_.