Politics & Policy

What the Flynn Plea Means

Michael Flynn arrives at a U.S. District Court in Washington, D.C., December 1, 2017. (Reuters photo: Jonathan Ernst)
There’s less to the news than meets the eye.

Former Trump-administration national-security adviser Michael Flynn is expected to plead guilty today to lying to the FBI regarding his conversations with Russia’s ambassador to the United States.

Flynn, who is reportedly cooperating with the investigation of special counsel Robert Mueller, is pleading guilty in federal district court in Washington, D.C., to a one-count criminal information (which is filed by a prosecutor in cases when a defendant waives his right to be indicted by a grand jury).

The false-statement charge, brought under Section 1001 of the federal penal code, stems from Flynn’s conversation on December 29, 2016, with Russian ambassador Sergei Kislyak. At the time, Flynn was slated to become the national-security adviser to President-elect Donald Trump. The conversation occurred on the same day that then-president Barack Obama announced sanctions against Russia for its interference in the 2016 election. It is believed to have been recorded by the FBI because Kislyak, as an agent of a foreign power, was subject to monitoring under the Foreign Intelligence Surveillance Act (FISA).

Mueller has charged Flynn with falsely telling FBI agents that he did not ask the ambassador “to refrain from escalating the situation” in response to the sanctions. In being questioned by the agents on January 24, 2017, Flynn also lied when he claimed he could not recall a subsequent conversation with Kislyak, in which the ambassador told Flynn that the Putin regime had “chosen to moderate its response to those sanctions as a result of [Flynn’s] request.”

Furthermore, a week before the sanctions were imposed, Flynn had also spoken to Kislyak, asking the ambassador to delay or defeat a vote on a pending United Nations resolution. The criminal information charges that Flynn lied to the FBI by denying both that he’d made this request and that he’d spoken afterward with Kislyak about Russia’s response to it.

Thus, in all, four lies are specified in the one count. The potential sentence is zero to five years’ imprisonment. Assuming Flynn cooperates fully with Mueller’s investigators, there will be little, if any, jail time.

Obviously, it was wrong of Flynn to give the FBI false information; he could, after all, have simply refused to speak with the agents in the first place. That said, as I argued early this year, it remains unclear why the Obama Justice Department chose to investigate Flynn. There was nothing wrong with the incoming national-security adviser’s having meetings with foreign counterparts or discussing such matters as the sanctions in those meetings. Plus, if the FBI had FISA recordings of Flynn’s conversations with Kislyak, there was no need to ask Flynn what the conversations entailed.

Flynn, an early backer of Donald Trump and a fierce critic of Obama’s national-security policies, was generally despised by Obama administration officials. Hence, there has always been cynical suspicion that the decision to interview him was driven by the expectation that he would provide the FBI with an account inconsistent with the recorded conversation — i.e., that Flynn was being set up for prosecution on a process crime.

While initial reporting is portraying Flynn’s guilty plea as a major breakthrough in Mueller’s investigation of potential Trump campaign collusion with the Russian regime, I suspect the opposite is true.

While initial reporting is portraying Flynn’s guilty plea as a major breakthrough in Mueller’s investigation of potential Trump-campaign collusion with the Russian regime, I suspect the opposite is true.

Speculation that Flynn is now cooperating in Mueller’s investigation stirred in recent days due to reports that Flynn had pulled out of a joint defense agreement (or “common interest” arrangement) to share information with other subjects of the investigation. As an ethical matter, it is inappropriate for an attorney whose client is cooperating with the government (or having negotiations toward that end) to continue strategizing with, and having quasi-privileged communications with, other subjects of the investigation and their counsel.

Nevertheless, as I explained in connection with George Papadopoulos (who also pled guilty in Mueller’s investigation for lying to the FBI), when a prosecutor has a cooperator who was an accomplice in a major criminal scheme, the cooperator is made to plead guilty to the scheme. This is critical because it proves the existence of the scheme. In his guilty-plea allocution (the part of a plea proceeding in which the defendant admits what he did that makes him guilty), the accomplice explains the scheme and the actions taken by himself and his co-conspirators to carry it out. This goes a long way toward proving the case against all of the subjects of the investigation.

That is not happening in Flynn’s situation. Instead, like Papadopoulos, he is being permitted to plead guilty to a mere process crime. A breaking report from ABC News indicates that Flynn is prepared to testify that Trump directed him to make contact with the Russians — initially to lay the groundwork for mutual efforts against ISIS in Syria. That, however, is exactly the sort of thing the incoming national-security adviser is supposed to do in a transition phase between administrations. If it were part of the basis for a “collusion” case arising out of Russia’s election meddling, then Flynn would not be pleading guilty to a process crime — he’d be pleading guilty to an espionage conspiracy.

Understand: If Flynn’s conversations with the Russian ambassador had evinced the existence of a quid pro quo collusion arrangement — that the Trump administration would ease or eliminate sanctions on Russia as a payback for Russia’s cyber-espionage against the Hillary Clinton campaign and the Democratic party — it would have been completely appropriate, even urgently necessary, for the Obama Justice Department to investigate Flynn. But if that had happened, Mueller would not be permitting Flynn to settle the case with a single count of lying to FBI agents. Instead, we would be looking at a major conspiracy indictment, and Flynn would be made to plead to far more serious offenses if he wanted a deal — cooperation in exchange for sentencing leniency.

To the contrary, for all the furor, we have a small-potatoes plea in Flynn’s case — just as we did in Papadopoulos’s case, despite extensive “collusion” evidence. Meanwhile, the only major case Mueller has brought, against former Trump-campaign chairman Paul Manafort and an associate, has nothing to do with the 2016 election. It is becoming increasingly palpable that, whatever “collusion” means, there was no actionable, conspiratorial complicity by the Trump campaign in the Kremlin’s machinations.

READ MORE:

The Michael Flynn Charge: Monstrous Injustice or Prelude to Bigger Things?

The Trump Collusion Case Is Not Getting the Clinton Emails Treatment

The Manafort Indictment: Not Much There, and a Boon for Trump

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