MS Risk Blog

The Flynn Charge: Implications and Exposure

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At 10.30am on December 1st, Former National Security Advisor Lt. General Mike Flynn pleaded guilty to a single charge of providing false statements to FBI officials (violation U.S.C. 1001) filed by the special counsel, Robert Mueller. Flynn’s guilty plea was part of a specific, public plea agreement entered into with the special counsel, tasked with investigating Russian interference in the 2016 election and the Trump campaign’s possible collusion. The Lieutenant General promised to fully cooperate in all matters of relevance, including turning over “all evidence of crimes about which your client is aware”, “providing sworn written statements” and testifying “before any and all Grand Juries.” For a relatively narrow charge, it was a wide-reaching agreement. It was, moreover, a political and legal bombshell that continues to ricochet within the White House and, quite possibly, the Oval Office. It is best to separate the damage into two distinct categories: exposure to the crime Flynn pleaded guilty to, and those he is possibly relaying to Robert Mueller.

Let’s start with the latter. In the past few days, two main schools of thought have emerged among leading US legal scholars over the significance of Flynn’s plea deal for Mueller’s collusion probe. The first is what we might call the ‘big fish school’, expressed in the analysis of many reputable media and legal commentaries. As stated in Lawfare’s ‘Quick and Dirty Analysis’ of the matter, “if a tenth of the allegations against Flynn are true and provable, he has gotten a very good deal from Mueller” — Flynn was reportedly on the payroll of the Turkish government and companies linked to Russian intelligence, to name a few of the litany of detailed allegations against him. According to this analysis, “prosecutors do not give generous deals in major public integrity cases to big-fish defendants without good reason” and, as such, “for Mueller to give Flynn a deal of this sort, the prosecutor must believe he is building a case against a bigger fish still.” What this case involves would relate to the proffer Flynn made to Mueller: explicit information of crimes of interest that cannot be withdrawn upon entry into the plea agreement. What this information reveals is anyone’s guess.

Preet Bharara, former US attorney for the Southern District of New York and famously fired by Donald Trump, as well as Andrew McCarthy, the conservative former federal prosecutor for the same district, have poured cold water on this view. For these attorneys, Flynn’s plea deal reflects Mueller’s weak hand: how damaging could Flynn’s information be if his plea agreement does not protect him from future prosecution, and would Mueller really wipe a dirty slate clean in exchange for it? Writing in Foreign Policy magazine, Lawfare’s Benjamin Wittes and Susan Hennessey do not dismiss this argument out of hand, arguing instead that it only adds to the “unsolved mystery” of Flynn’s plea agreement. Either Flynn is only minimally exposed in the information he is relaying to Mueller, or there is something not publicly disclosed in the agreement submitted to court. But then again, Flynn testified that there exists no secret side agreement. Hence the mystery.

Turning to Flynn’s actual testimony, his statement of offence makes clear he was not acting as a ‘rogue agent’ during the transition but consulted with a “senior official” over his phone call with Russian Ambassador Kislyak, debriefed “senior members” of the transition team over the nature of that call and was directed by a “very senior member” concerning an additional conversation with the ambassador. The White House’s explanation for Flynn’s firing — that he lied to Vice President Mike Pence (who led the transition team) over the nature of those calls — now looks very precarious, implicating not only the Vice President but all White House staff involved in forming the explanation. Moreover, if a CNN report in November is true — that Mueller interviewed Jared Kushner over whether he possessed information that could exonerate Flynn, Kushner’s exposure is noteworthy, especially in light of US media widely sourcing the “very senior official” as Kushner himself. Given the breadth of Kushner’s reported contacts with Russian officials, it is not unreasonable to suppose Mueller is working his way up the food chain.

Flynn’s statement of offence also appears to expose President Trump in Mueller’s obstruction of justice investigation. By linking Flynn’s crime to senior administration officials, President Trump has additional motive for allegedly telling FBI Director James Comey, “I hope you can see your way to letting this go, to letting Flynn go” (as testified by Comey). President Trump’s response to the Flynn charge also did little to help his cause: by tweeting on 2nd December that he fired Flynn for “lying to the FBI”, he only added credibility to this alleged motive.

This review has separated the implications of Mike Flynn’s plea agreement into those related and unrelated to his charge, but the most significant implication might in fact be in the blurring of the two. Unless one counts the 18th century Logan Act, yet to be prosecuted in a court of law, Flynn’s conversations with the Russian ambassador were arguably not illegal. The questions going forward are likely to be why Flynn, Kushner, Pence and the White House misled their audiences. Could the answer be found in Mike Flynn’s recent cooperation?