(T)to take the view that the FBI had no reasonable investigative predicate for the Flynn case on Jan. 24, 2017, one has to believe that the following fact-pattern, considered in its entirety, provides no reasonably articulable basis for a counterintelligence concern:Wonder if Judge Sullivan will see it this way?
*A senior official with a TS/SCI clearance working in the White House has ties to various Russian government entities;
*He has traveled to Russia and taken large sums of money from a state-controlled Russian media outfit;
*As the investigation of these matters was winding down, he had phone conversations with the Russian ambassador at a time when the United States had just imposed sanctions on Russia for interfering in the 2016 elections. In those conversations, he had asked that Russia to respond only in a measured fashion;
*He subsequently lied to the Vice President of the United States and other White House officials about the substance of those calls,
causing the White House to issue inaccurate statements to the public;
*The Russian government was aware of these lies, having participated in the phone calls, and the official was thus potentially subject to blackmail.
Recall that predication is cumulative. While the FBI had previously examined Flynn's ties with Russia and found no derogatory information based solely on those ties, his call with Kislyak and subsequent behavior raised new questions about whether something had been missed. It potentially cast the earlier interactions in a very different light.
The Justice Department is arguing here nothing less than that it is okay for a counterintelligence subject to lie to the FBI about interactions with foreign governments under certain circumstances. The argument fails for the same reason the earlier argument fails: The investigation had proper predication, so the lies were material.