What Does Flynn Plea Deal Mean?

Special Counsel Robert Mueller announced this morning that a plea hearing for retired Lt. Gen. Michael Flynn, President Donald Trump’s first national security adviser, would take place at the D.C. federal courthouse.

Following the hearing, Flynn released a statement, in which he acknowledged that he was now working with Mueller’s team.

“My guilty plea and agreement to cooperate with the Special Counsel’s Office reflect a decision I made in the best interests of my family and of our country,” Flynn said.

With the announcement, Mueller’s team released a criminal information document, detailing what Flynn is pleading guilty to. Although there is evidence that Flynn potentially committed other crimes, it appears he is only pleading guilty to lying to FBI agents who were investigating his contacts with Russian officials as part of the larger probe into Russia’s meddling in the 2016 election. Following Flynn’s hearing, the Mueller team also released Flynn’s plea agreement and a statement of offense

White House attorney Ty Cobb also released a statement following Flynn’s court appearance:

“The false statements involved mirror the false statements to White House officials which resulted in his resignation in February of this year.  Nothing about the guilty plea or the charge implicates anyone other than Mr. Flynn.  The conclusion of this phase of the Special Counsel’s work demonstrates again that the Special Counsel is moving with all deliberate speed and clears the way for a prompt and reasonable conclusion.”

Based on the plea document, we now know that on the same day (Dec. 29) that the Obama administration announced new sanctions against Russia and kicked out 35 Russian officials in response to Russian hacking, Flynn got on the phone with then-Russian Ambassador Sergey Kislyak and asked him not to escalate the situation. The White House repeatedly denied that this is what Flynn discussed with Kislyak.

We also know that on Dec. 22, Flynn spoke with Kislyak about a pending UN Security Resolution on Israeli settlements. He told the FBI that he did not ask the Russian ambassador to delay or defeat the vote on it, but we now know this was not true. The Obama administration resisted pressure by the Israeli government and abstained from the vote, allowing the resolution condemning Israeli settlement construction to be adopted. Trump tweeted his disapproval on Dec. 23.

Asha Rangappa, a former Special Agent in the New York office of the FBI, and Alex Whiting, a former U.S. federal prosecutor, agree that today’s news of Flynn’s guilty plea indicates Flynn’s cooperation and that he has enough information with which he can strike a bargain with Mueller. I spoke to them both quickly over email to make sense of it all. 

“Most striking thing is that he is pleading to just one count of lying when evidence of so many other alleged crimes has been swirling around and some of these other crimes appear to be well-documented,” Alex said.

Normal practice in a guilty plea with cooperation is to reward on sentencing, not when you announce charges, and to have the defendant plead to all criminal conduct, so this is somewhat unusual, Alex said. “The reason for this is accountability and also credibility. A cooperating witness who has taken responsibility for all conduct will be a more credible witness.”

So why didn’t that happen here?

It’s possible that the other charges on Flynn did not pan out, or Mueller decided as a matter of discretion that the wrongdoing did not warrant criminal consequences, either because the crimes are not usually criminally charged (for example, Flynn not registering his Turkey lobbying)  or because of circumstances particular to Flynn.

But Asha said it’s unlikely that’s what’s going on here.

“It’s hard for me to believe that if he retroactively registered for the Foreign Agents Registration Act (FARA), he was getting money from Turkey, and plotting an abduction, there were not several other offenses for which there was enough evidence to charge him. For instance, Mueller could charge Flynn with a criminal FARA violation (as he did with Manafort) or at least more counts of false statements since it’s almost a guarantee that Flynn lied more than once to the FBI,” Asha said. “Also, if there is nothing there on anything else, Mueller risks his own credibility and that of the investigation. Given the public scrutiny of this investigation it would look terrible for Mueller if that’s really all he has  — it would seem like he is just concocting an investigation if nothing else panned out except for one false statement charge. It would support the idea that this is all a witch hunt.”

What’s far more likely is that Flynn has very good information and was therefore in a strong bargaining position. “I think that’s most likely what’s going on here, and that would be very bad news for Trump,” Alex said.

The reward Flynn is receiving for his cooperation appears to be substantial and that brings into sharp focus just how significant his evidence is likely to be, Alex also noted. “The plea agreement contains a calculation of the guideline range for Flynn’s guilty plea, which is calculated to be 0 to 6 months. The government also agrees not to prosecute Flynn for any other charges arising out of the statement of facts. This means that if Flynn fulfills his end of the bargain, it is a certainty that he will not spend a day in jail. In light of the evidence of Flynn’s overall misconduct, this result strongly indicates that Flynn has very important information to offer.”

Asha agreed. “I think Flynn is giving up the goods, big time.”

She also noted the date of Flynn’s call with Kislyak: Dec. 29. On Dec. 30, Trump tweeted, “Great move on delay (by V. Putin) – I always knew he was very smart!”

This adds to the pattern that these individuals who had contacts with Russia were reporting back to Trump, Asha said.

Also, a reminder that it’s been reported that Flynn’s lawyers are no longer coordinating or sharing information with the president’s lawyers, another indication that Flynn is cooperating.

Image: George Frey/Getty

 

About the Author(s)

Kate Brannen

Deputy Managing Editor of Just Security, Nonresident Senior Fellow at the Brent Scowcroft Center on International Security at the Atlantic Council, Former Senior Reporter covering the Pentagon for Foreign Policy Follow her on Twitter (@K8brannen).

Asha Rangappa

Senior Lecturer at Yale’s Jackson Institute for Global Affairs. She served as an FBI counterintelligence agent from 2002 to 2005. Follow her on Twitter (@AshaRangappa_).

Alex Whiting

Former Federal Prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston, Former International Criminal Prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague Follow him on Twitter (@alexgwhiting).