The big news from Michael Flynn’s pleading guilty to lying to the FBI is the cooperation agreement he entered with the Special Counsel’s Office, not the plea itself.
The charges against Flynn are serious on their face, but they don’t directly implicate anybody other than Flynn himself in criminal activity.
The “information” filed against Flynn says that he lied to the FBI when he denied having urged the Russian Ambassador not to escalate the situation in response to sanctions imposed against Russia by the U.S., and when he denied having asked the Russian Ambassador to help delay or defeat a U.N. Security Council resolution regarding Israel.
A “Statement Of The Offense” filed by the Special Counsel connects Flynn’s lies directly to the investigation into possible collusion between the Trump campaign and Russia. The Statement charges that Flynn’s false statements “impeded and had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals associated with the campaign” and Russia’s interference with the election.
Worse, the Statement Of The Offense makes it clear that prior to the discussions he later lied about to the FBI, Flynn discussed what he should say to the Russian Ambassador with an unidentified “senior” member of Trump’s transition team who was with other senior Trump officials at Mar-a-Lago. Trump himself was, of course, at Mar-a-Lago at the time.
Flynn then promptly reported to the senior Trump official after his discussion with the Russian Ambassador.
While we don’t yet know the identity of the Trump official or officials who participated in these conversations, or exactly what was said, Flynn does. And that means Mueller does too.
That’s because we now know for certain what we have suspected ever since it was reported last month that Flynn’s attorneys were no longer communicating with Trump’s legal team:
Flynn is cooperating with the Special Counsel’s Russia investigation.
Flynn has confirmed it. He issued a statement today insisting that he has been the victim of a campaign of “false accusations of ‘treason’ and other outrageous acts.” Buried in that statement is his confirmation that he has entered an “agreement to cooperate with the Special Counsel’s Office.”
Nothing could be more ominous for Donald Trump. Flynn is uniquely positioned to provide testimony that could bring Trump down. Recall that when Flynn launched his campaign for immunity last March, his lawyer dangled the tantalizing promise that Flynn “certainly has a story to tell.”
He will now tell that story to the Special Counsel.
We don’t know what story Flynn will tell, but it’s easy to imagine what story he might tell. Everything we know today suggests the story will be a doozy.
Why would Flynn have lied to the FBI in the first place if his conversations with the Russian Ambassador were entirely innocent? Why lie about it if all he was doing was setting up lines of communication with Russia and other countries?
Given Flynn’s wide array of criminal exposure, why would the Special Counsel bring such a relatively light charge against him if he weren’t offering something big in return?
What could the “something big” be, other than giving Mueller the heads of Donald Trump, Mike Pence and/or Jared Kushner on a platter? Prosecutors don’t let felons off lightly in exchange for their agreement to implicate people lower down the chain of command. Flynn was the National Security Advisor, and a close Trump intimate. There was nobody higher in the chain of command, other than Trump, Kushner and arguably Pence. Without implicating one of them, Flynn doesn’t have much to offer the Special Counsel.
And why would Flynn be the one person to whom Trump has displayed “loyalty”? I place “loyalty” in quotation marks because Trump isn’t loyal to anyone but himself, so he clearly must have a selfish, personal motive to support Flynn publicly. The only reasonable explanation is that Trump knows full well that Flynn has the goods on him. Of course, once Flynn flips, and starts handing those goods to the Special Counsel, Trump will turn on him.
Trump is running out of options to contain the damage Flynn can do to him. Let’s take a quick look at them.
He can pardon Flynn, but that carries grave political risk, and may not solve the problem anyway. By holding back on the initial charges filed against Flynn, the Office of the Special Counsel leaves room for states to file their own charges. The presidential pardon power extends only to federal crimes, not state crimes. It is hard to imagine that the Attorneys General of all fifty states would pass on an opportunity to take up an investigation if the feds are thwarted by a presidential pardon.
Trump can engineer the termination or de-funding of the Special Counsel investigation. But that, too, would carry enormous political risk, possibly even triggering a Watergate-style impeachment proceeding for obstruction of justice. And that, too, would not eliminate the possibility that the states could pursue charges against Flynn, so it wouldn’t eliminate Flynn’s incentive to provide damaging evidence against Trump.
Whether or not Trump pardons Flynn or terminates the Special Counsel investigation, he will certainly continue his war on truth. His bet is that the evidence doesn’t matter as long as he denies it and undermines the credibility of anybody who reports it. That has been his game all along.
We’ll soon find out if he can win that game.
Follow Philip on Twitter at @PhilipRotner. Philip is an engaged citizen and a columnist who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated.
