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Ability to Charge Flynn Strengthens Case of Obstruction of Justice against Trump

 

 

Special Counsel Bob Mueller has now gathered sufficient evidence to indict Michael Flynn and Flynn’s son, according to NBC News. An indictment of Flynn—and even simply having sufficient evidence to indict him—greatly strengthens the case of obstruction of justice against the President.

Why? Former federal prosecutor and Just Security’s Alex Whiting explained this summer in a piece, “As Collusion Evidence Emerges, Obstruction Allegations Begin to Look More Damaging.” Here’s Professor Whiting’s point:

Despite the old adage that “the cover-up is always worse than the crime,” obstruction charges will be harder to prove if in fact there were no improprieties to hide.

Read Whiting’s article for his full analysis including how prosecutors generally think about tactical choices in such cases. In his piece, Alex focuses more on the “collusion” charges as the potential underlying cover up. But who could have anticipated the avalanche of legal problems that Flynn would face, as outlined in the NBC news story—plus recent reporting by the Wall Street Journal’s Shane Harris on Flynn’s potential role in seeking Hillary Clinton’s emails from Russians and Harris’s subsequent report that Mueller directly turned his investigation’s attention to Flynn’s potential role in those efforts.

What’s more, as the NBC story explains, an indictment of Flynn would implicate the President more directly. NBC’s Julia Ainsley, Carol E. Lee, and Ken Dilanian write:

So far, the probe has only ensnared campaign officials, and the White House has argued that the connection to the president is minimal. An indictment of the president’s former national security adviser and his son would scramble that dynamic.

This is the scenario that Whiting outlined back in July. The final two paragraphs of Whiting’s article are exceptionally prescient:

When Trump engaged in his alleged acts of obstruction, did he have a sense that the investigation would ultimately unravel this story that is now emerging? With regard to Flynn, did he know that Flynn’s story was an important piece in the larger picture, one that he did not want revealed? Or did he know that the FBI’s pressure on Flynn could force him to give up other incriminating evidence? Far from simply acting to shield a former subordinate and ally, was Trump actually just trying to protect himself, and those close to him?

If the answer to any of these questions is yes, then Trump’s actions will have a very different feel to them, and his potential defenses much harder, if not impossible, to swallow. Doubts about whether Trump’s actions merit serious consequences could be effectively mitigated. For this reason, it is important to keep an eye on both parts of the investigations, and how they are related. There is no question that the investigators will.

[Editor’s Note: For more analysis, readers may be interested in: “A Round-Up of Just Security’s Obstruction of Justice Coverage,” and “Timeline of Trump and Obstruction of Justice: Key Dates and Events”]

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About the Author

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, Former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter (@rgoodlaw).