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December 15, 2017

Here is an exposition and analysis of this week’s national security-related Twitter threads by Just Security Editorial Board member Renato Mariotti from Dec 8 to 15.

The Implications of Trump Potentially Pardoning Flynn

Here, Mariotti notes that if Trump pardons Flynn, that pardon could serve as evidence of Trump’s intent in an obstruction of justice case. A pardon would suggest that former FBI director James Comey was truthful and accurate in testifying before Congress that Trump wanted him to drop the Flynn investigation, despite Trump’s denials of Comey’s account.

Thus, Mariotti says, it makes sense for Trump to avoid pardoning Flynn, any time soon at least, to avoid giving the appearance of validating Comey’s testimony. What’s more, if there were an ideal time for Trump to have promised to pardon Flynn, it would have been prior to Flynn’s decision to cooperate with the Mueller investigation. Then, Flynn might have felt secure in the knowledge that he would be pardoned of any federal offenses, which would have given him less incentive to cooperate.

Trump could still pardon Flynn of all federal offenses nevertheless, which would sharply reduce Mueller’s leverage over Flynn. The Special Counsel has charged Flynn only with the federal offense of lying to the FBI, and the plea agreement removes Flynn’s liability for lying on his forms when registering as a foreign agent. Thus, a Trump pardon could wipe out Flynn’s potential liability for those and other potential offenses. Since there are no state-level equivalents of those crimes, the pardon would not leave Flynn vulnerable to state prosecution.

But it would be less useful for Trump to pardon Flynn now, since Flynn has already presumably told Mueller everything he knows, Marriotti reasons. A pardon would also deprive Flynn of the ability to invoke the Fifth Amendment in refusing to testify, leaving him with three options if a trial were to occur. First, Flynn could testify in line with his FBI interviews, the least useful option for Trump; second, he could testify in contradiction to his interviews, more useful for Trump but less likely to be believed by a jury; or third, he could refuse to testify despite the pardon. The second and third options would leave Flynn liable to a new perjury charge and being held in contempt of court respectively, either of which would increase Mueller’s leverage over Flynn.

Finally, not mentioned by Mariotti, but in a tweet by Just Security‘s Ryan Goodman, is the question of Flynn’s son. Reporting by NBC News and CNN indicated that Flynn may have been motivated to cooperate with Mueller out of concern that Mueller has sufficient evidence to indict his son. A pardon of Flynn himself might therefore not remove his incentive to cooperate fully with Mueller.

 

 

Mueller Investigation is Looking into What Trump Officials Knew About Flynn Lying to FBI

In this thread, Mariotti analyzes the significance of the NBC News report that Special Counsel Bob Mueller’s team is investigating what senior Trump administration officials knew between Jan. 24, when Michael Flynn lied to the FBI about his contacts with Russian Amb. Sergey Kislyak, and Feb. 13, when President Trump fired Flynn. The two key questions are when Trump knew about the contents of Flynn’s calls to Kislyak about Russia sanctions, and when Trump knew about Flynn lying to the FBI about those contacts.

This news indicates that Mueller is investigating closely whether Trump or senior White House officials engaged in obstruction of justice with respect to Flynn. The elements of obstruction of justice, if it applies in this case would, need to show: (a) a corrupt intent and (b) an endeavor to obstruct a law enforcement investigation. The second requirement is likely satisfied by Trump telling FBI Director Comey during a private Feb. 14 meeting: “I hope you can see your way clear to letting this go, to letting Flynn go…He is a good guy. I hope you can let this go.”

That would mean the President was attempting to stop or alter the course of an ongoing investigation, and then the only question remaining would be his intent: did he want to stop the investigation because he thought it was baseless, or a mere political distraction, or some other reason, or did he know that the investigation was likely to discover a crime that would embarrass or otherwise not work to Trump’s advantage, and therefore wanted to hide wrongdoing?

There are at least two paths to find evidence of a corrupt intent, as Mariotti notes: first, if Mueller’s team finds any evidence that Trump directed Flynn to lie to the FBI about his Russian contacts, it would be an obvious case of a President obstructing an FBI investigation. That would require establishing that Trump knew about the Russian contacts prior to Flynn’s Jan. 24 FBI interview, and that Trump intended for Flynn to mislead investigators about the interview.

The second possibility is that Trump knew that Flynn had lied to the FBI, a federal crime, when he asked Comey to let the investigation go. Trying to cover up a federal crime would also constitute a corrupt intent. That path may require showing that Trump was informed, for example through White House Counsel Donald McGahn, that Flynn lied to Trump officials after Acting Attorney General Sally Yates met with McGahn on Jan. 26. McGahn may have also investigated whether Flynn lied to the FBI about those contacts as well. The NBC report quotes two former federal prosecutors as saying most lawyers in McGahn’s position would have immediately gone to Flynn to find out if he lied to the FBI following the White House Counsel’s meeting with Yates.

 

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