Law & the Courts

Flynn’s Guilty Plea Doesn’t Necessarily Spell End of Mueller’s Collusion Investigation

Michael Flynn leaves U.S. District Court in Washington, D.C., December 1, 2017. (Jonathan Ernst/Reuters)
In fact, all evidence suggests there could be much more to come from that portion of the probe.

When it comes to assessing the state of special counsel Robert Mueller’s investigation, it is impossible to know for certain what is going on. Even the most experienced experts and closest observers are ultimately reduced to some measure of conjecture as they predict various outcomes. For this reason, you should be wary of anyone who claims to know for sure. Andy McCarthy’s assertion that the Flynn guilty plea shows “the collusion probe is over” is, in that respect, overdrawn. It may very well prove true that at the end of the day, Mueller fails to establish a criminal case involving collusion. McCarthy’s conclusion about the Flynn plea, however, infers too much from the available facts and fails to account for significant, inconsistent information.

The better view is that the Flynn guilty plea shows Mueller’s investigation has not narrowed its focus to obstruction, as McCarthy contends, but instead continues to look broadly at all possible areas of criminality within his assigned jurisdiction, including Russia’s election interference and possible collusion with the Trump campaign. The most reasonable assessment remains the conventional one: Mueller has hit a milestone in the Russia investigation with the Flynn guilty plea. Trump’s one-time national security adviser has now flipped, opening the door for the office of the special counsel to learn whatever he knows about any campaign interactions with Russia. Other Trump campaign associates will now have greater incentive to cooperate with the FBI as well.

With respect, there are three principal flaws in McCarthy’s reasoning. First, he fails to account for why Flynn not only pled guilty, but decided to cooperate. As McCarthy himself points out, the charge of lying to the FBI that Mueller laid on Flynn carries with it virtually no risk of jail time, even before accounting for any credit he might gain by cooperating.

So why did Flynn flip? He could not have relished the prospect of betraying his friends by helping Mueller, and reportedly did not make the decision to cooperate until the last possible minute. The most likely answer is that he agreed to Mueller’s deal because he believes more serious charges are coming that could ensnare him as well as his former colleagues. McCarthy is right to think that Mueller isn’t there yet; if he were, he would have forced Flynn to plead to those more serious charges. But McCarthy is wrong to conclude that Mueller has veered from the bigger case. The far more likely scenario is that Mueller told Flynn he was going to be charged with lying now, more serious charges could be coming later, and if he wanted to cooperate he had to do so now. If Flynn waited for the bigger case to come before agreeing to cooperate, the door would be closed, as Mueller would at that point no longer need Flynn’s help. Here it’s worth noting that the possibility of future charges is expressly provided for in Flynn’s plea deal: Mueller has agreed not to bring further charges against Flynn only with respect to the lying. He has left open the possibility of additional charges based on other matters. It is that very real prospect that likely persuaded Flynn to cooperate.

Second, McCarthy treats the charge of lying as if it were entirely separate from and tangential to the bigger case, failing to see (or acknowledge) the connections between the two. What are the lies about? Not just Flynn’s actions, but potentially the Trump transition team’s having given Moscow assurances that it would not pay a certain cost for having helped in the campaign. McCarthy and others contend that Flynn lied about his calls with Russian Ambassador Kislyak just because they were politically embarrassing. Maybe. But high-level executive-branch officials do not usually commit federal crimes to avoid political embarrassment. KT McFarland’s emails to senior transition officials now also suggest the possibility of a connection between the cover-up surrounding Flynn’s calls and the campaign’s concerns about the public’s understanding of Moscow’s campaign interference. At the least, it is exceedingly difficult to believe that, upon establishing that at least one of the most senior Trump officials lied about interactions with the Russians, Mueller has now stopped looking into what the lies were about.  

Along these same lines, Mueller’s other actions also indicate that the investigation is progressing forward. Just a few weeks ago, McCarthy explained that the Paul Manafort indictment looked like “a vehicle to squeeze Manafort, which is special counsel Robert Mueller’s objective.” That sounds right. But squeeze Manafort for what exactly? Though he presumably knows nothing useful to an obstruction investigation, he can probably be a big help to the Russia investigation. In addition to Manafort’s indictment, there is the guilty plea by Trump campaign foreign-policy adviser George Papadopoulos, who found the need to hide from the FBI that he was offered dirt on Hillary Clinton by a Russian agent and was in frequent conversation with senior campaign officials who encouraged his exchanges with Kremlin surrogates. If you look more closely at the Papadopoulos plea, you will see it also fingers Manafort and Gates. They were the two senior campaign officials who decided that a low-level member of the campaign should directly meet with the Russians. Carter Page’s trip to Moscow occurred later that summer.

Third, McCarthy seems to treat this investigation like an ordinary case in concluding that if Mueller does not have it now he never will. As McCarthy notes, a guilty plea by an accomplice in a political-corruption case “can drive public officials out of office.” Given the particularly high stakes in this case, we have to imagine that Mueller is proceeding cautiously and will want to be certain of his evidence before pulling the trigger. He will want to be extremely sure of his case before accusing President Trump or senior members of the White House (e.g. Jared Kushner) of actions that amount to treachery. And in the same vein, he must be extremely careful not to paint a picture that the public could mistakenly assume implicates Trump in criminal activity if the president is not culpable. With the power to potentially drive the highest officials in the country from office, Mueller may even have intentionally avoided getting Flynn on the public record now, to make sure that the FBI has built the strongest and clearest possible case if he ever does unveil an indictment that involves a conspiracy to work with the Russians in election interference. In short, there are strong reasons, in the best interests of the country, for Mueller to exercise such restraint.

At the end of the day, nobody outside the Mueller investigation can know for certain where things are headed. But the details of Flynn’s plea indicate that neither Flynn nor Mueller has concluded obstruction is where it will end. Both are acting as if they believe there are bigger things ahead.


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