Flynn’s Not out of the Woods, Trump’s Not Necessarily in Danger

An in-depth look at the implications of Michael Flynn's plea deal.

Dec 03, 2017

On Friday, December 1, former National Security Advisor and Trump campaign official General Michael Flynn pleaded (it’s pleaded, not pled) guilty to one count of making false statements to the FBI. And everyone went nuts.

A month prior to news of the plea deal, reports came out that Ex-CIA director and Trump campaign national security expert James Woolsey had spoken to Special Counsel Robert Muller. Woolsey reportedly discussed a meeting he participated in with Flynn and Turkish nationals about Fethullah Gülen, a Turkish dissident living in the U.S. to avoid persecution by the current Turkish regime.

According to Woolsey, Flynn and others discussed a plot to kidnap Gülen and bring him back to Turkey – a $15 million payment for Gülen’s rendition to Turkey was also discussed. On Election Day 2016, Flynn wrote an op-ed calling on the Obama Administration to extradite Gülen. Flynn retroactively registered as a foreign agent as that op-ed was placed on behalf of Turks who paid Flynn to do so.

In November, Time and others reported that Flynn’s lawyers told the White House they would be ending a joint defense agreement with Trump’s legal team. Joint defense agreements are, by the way, a routine, entirely lawful practice of defense attorneys in large investigations with multiple targets.

With all of these very credible charges linked to Flynn, he only pleaded guilty to one count of lying to the FBI, and the plea deal call for a sentence of “zero months to size months’ imprisonment.” You can read the entire plea deal and related documents on Lawfare Blog.

Why so short a prison sentence? Obviously, Flynn must be cooperating with Muller’s investigation to get a metaphorical “bigger fish.” The plea deal spells out that Flynn will cooperate with the Special Counsel investigation, and that cooperation is the only way he will get the generously reduced prison sentence. However, the plea deal and charges indicates that Robert Muller is still concerned about how much Flynn actually knows or is willing to tell. It’s also unclear which “bigger fish” Muller thinks he can squeeze from Flynn.

A Number of Charges Have Been Omitted from the Documents

The “Statement of Offense” in the case, called U.S. v. Flynn, lists all of the illegal conduct for which Michael Flynn is pleading guilty. As part of the plea deal, Flynn was required to admit all of the assertions in the Statement of Offense were true.

A number of more liberal cable news anchors have pointed out indignantly that the kidnapping conspiracy allegations are not included in the statement. It is one thing, the argument goes, not to charge him for the conspiracy, but failing to mention it is bewildering.

First of all, there’s nothing saying Muller must put everything Flynn did wrong in the Statement of Offense, quite the opposite. The first paragraph of the document explicitly states “these facts do not constitute all of the facts known to the parties concerning the charged offense.” Second, there is a very good reason – if one closely reads the plea deal – for Muller NOT to include the kidnapping conspiracy.

Section 3 of the plea deal is titled “Additional Charges” and stipulates certain restrictions on the Special Counsel’s office if Flynn pleas guilty. It protects Flynn from prosecution by the Special Counsel for “conduct set forth in the attached Statement of the Offense.”

Do you see it?

Muller can’t prosecute Flynn further for anything in the Statement of Offense, but the information Ex-CIA director Woolsey told Muller about the conspiracy to kidnap Gülen aren’t in the Statement of Offense. It’s possible Muller investigated Woolsey’s claims and didn’t find them credible, but it’s also possible that Muller is keeping them in his back pocket in case Flynn needs a little more persuading down the road.

Later parts of the plea deal state that while the Special Counsel can’t seek further charges for conduct in the Statement of Offense, other prosecutors my do so if the conduct is within their jurisdiction. Either way, I don’t think Flynn is home free just yet. Muller really is running the Special Counsel’s office like a Mafia sting operation. Flynn is going to have to turn on someone bigger than him to avoid years in prison. But there is plenty of evidence in the plea deal that Flynn’s cooperation isn’t going to land the Mafia Don(ald) in jail immediately.

The Statement of Offense hints at Kushner, not Trump

Flynn pleaded guilty to lying to the FBI about the nature of phone conversations he had with Russian government officials in the transition between the 2016 election and the inauguration of President Trump. In late December, the outgoing Obama administration put sanction on Russia for their interference in the 2016 election. Flynn called Russian officials including Russian Ambassador to the U.S., Sergey Kislyak, indicating the Trump administration would strike a softer tone with Russia, and urging the Russian government not to retaliate for the Obama administration sanctions. These conversations were likely a violation of the Logan Act, another charge not mentioned in the documents.

The Statement of Offense, however, is clear that Flynn initiated these contacts at the behest of “a very senior member of the Presidential Transition Team.” Buzzfeed later reported that the senior transition official in question was Jared Kushner.

Kushner has already spoken to Robert Muller’s team before, and faces his own scandals regarding attempts to set up a secret backchannel to the Kremlin on behalf of the Presidential Transition Team. In the next few months, don’t be surprised to see subpoenas or even indictments surrounding the son-in-law-turned-presidential-aide Kushner.

The Washington Post recently reported that the President has been telling friends and aides that the Muller investigation will be over by the end of 2017. An anonymous source is quoted as saying Trump will “blow a gasket” if the Muller probe persists into 2018.

Liberal activists, commentators, and media personalities are also getting impatient with the Muller investigation. Obviously, Trump and liberals have different hopes for the outcome of the investigation, but there seems to be bipartisan agreement that it should end sooner rather than later.

Unfortunately, the revelations about Flynn and Kushner make it unlikely that we will see the Special Counsel conclude the investigation in the next three weeks. This is especially true because Flynn’s plea deal indicates that he has plenty of cooperating left to do. We should all be prepared for the possibility that President Trump really does “blow a gasket” in early 2018.