I’m continuing my look at the central mysteries of the Trump-Russia investigation, diving into a question that has former federal prosecutors and legal experts scratching their heads: the plea deal of retired Lt. Gen. Michael Flynn.
As Lawfare’s Susan Hennessey and Ben Wittes have written, Flynn’s plea deal remains an unsolved mystery. The central question is: Why, after so much public reporting about Flynn’s potential criminal exposure, was his plea so limited — only one count for a set of false statements to the FBI? Many have interpreted the deal to mean that Special Counsel Robert Mueller gave Flynn a good deal, because Flynn had so much important information to share with the special counsel.
In an interview with POLITICO’s Susan Glasser just last month, Sen. Mark Warner said, “The fact that he pled to one count would say to me that he’s probably got a story to tell, and my sense is that Mueller is getting closer and closer to the truth and that closer and closer to the truth is getting closer and closer to the president.”
But others like National Review’s Andy McCarthy have come out with a different interpretation: Flynn pleaded to one count of lying because this is all Mueller has on him. What’s more, McCarthy, who formerly served as an assistant U.S. attorney for the Southern District of New York, concludes that Flynn’s very limited plea shows “the collusion probe is over.”
But this doesn’t feel quite right either, because reports over the last year have suggested Flynn could be implicated in other wrongdoing. Flynn failed to register as a foreign agent for Turkey until after he left the Trump administration despite receiving hundreds of thousands of dollars to lobby on behalf of the Turkish government throughout the presidential campaign and even into the transition period. Flynn also reportedly met with Turkish representatives in New York in December 2016 and allegedly discussed options for delivering Fethullah Gulen, a Turkish cleric who lives in exile in Pennsylvania, to the Turkish government, which accuses Gulen of masterminding a failed coup against Turkish President Recep Tayyip Erdogan. One of the proposals included a plan to kidnap Gulen for millions of dollars. Later, as Trump’s first national security adviser, Flynn was working behind the scenes to help get a U.S.-Russia plan to build nuclear plants in the Middle East off the ground, a project with which he had previous business ties. Flynn failed to disclose the work he did on the project, including trips abroad, on his security clearance renewal form. He also failed to disclose payments he’d received from Russia-linked companies on his first financial disclosure form.
What happened to all of that? It’s possible that other charges on Flynn did not pan out, or Mueller decided as a matter of discretion that the wrongdoing did not warrant criminal consequences.
Preet Bharara, the former U.S. attorney for the Southern District of New York, remains very skeptical that Mueller cut Flynn a sweetheart deal in exchange for information. It’s typical that when you reach a plea deal with someone, you make them plead guilty “to every bad act they’ve ever done,” he explained on his podcast in early December. Because of this, it’s very possible that, in the end, Flynn pleaded guilty only to lying to the FBI because that’s all Mueller has on him. But Bharara leaves room for a third possibility, which he outlined in December:
It may be the case that Michael Flynn understands that for now he was expected to plead guilty to the most easily provable, serious charge, which is 18 U.S.C. § 1001 violation, lying to the FBI. And as the team begins to uncover evidence and build a case against other people, whether that’s Jared Kushner or the president of the United States himself, or other folks, they may be reluctant to have Michael Flynn, at this point in time, plead guilty in a way that suggests the guilt of other people because it’s premature, because they’re not yet ready to pull the trigger, because it’s not yet clear that they will ever be in a position to charge those other people.
Now, ordinarily, in cases that I oversaw, particularly in public corruption, and you were concerned about this public taint that would come to pass against these other people prematurely, what you do is you have the person plead guilty under seal. Now, I’m not sure why that didn’t happen in the Michael Flynn case, maybe just to continue the hypothetical, that they thought it would get because there are leaks … Although, I don’t recall too many cases where you had phases of guilty plea on the part of a cooperating witness, because of the unique nature of the circumstances here, and the tremendous amount of collateral damage that could occur with respect to other people, that’s a possibility.
Consistent with Bharara, Just Security’s Ryan Goodman and Alex Whiting write in the National Review that “with the power to potentially drive the highest officials in the country from office, Mueller may even have intentionally avoided getting Flynn on the public record now, to make sure that the FBI has built the strongest and clearest possible case if he ever does unveil an indictment that involves a conspiracy to work with the Russians in election interference.”
So which is it? Will we eventually see Flynn plead guilty to other charges or is this it? And what has he shared with Mueller and what new doors of investigation did this information open? Stay tuned …