It's Russia, Stupid

By Barbara McQuade, The Daily Beast

04 December 17

The special counsel made something public he could’ve kept private. It’s full of hints and carries a message to Jared Kushner: Cooperate now.

he guilty plea by President Trump’s former national security adviser Michael Flynn on Friday showed once again that for special counsel Robert Mueller, the devil is in the documents.

Flynn pleaded guilty to one count of making false statements to the Federal Bureau of Investigation. Filed along with his guilty plea were three documents: a criminal information statement containing the charge, a plea agreement, and a document called “Statement of the Offense.” Just as we saw in the guilty plea of former campaign advisor George Papadopoulos, the documents provide a number of interesting insights.

It’s Russia, Stupid

One clear point that these documents reveal is that Mueller is eager to strip away extraneous issues and focus on Russia. The charge focuses on Flynn’s false statements regarding (1) sanctions against Russia for interfering with the election and (2) a request of Russia to block a United Nations resolution relating to Israeli settlements. The plea agreement agrees not to charge Flynn for undisclosed lobbying on behalf of the government of Turkey. It makes no mention of the reported kidnapping plot against Turkish cleric Fethullah Gulen, a potentially very serious violation of kidnapping or bribery statutes. This strategy demonstrates two goals for Mueller: keeping his eye on the Russia ball, and keeping the investigation moving quickly.

More to Come

The Statement of the Offense makes it clear that when Flynn spoke to Russia, he was not acting on his own as some rogue player. The Statement of Offense sets out a timeline indicating that Flynn’s conversations with Russian ambassador Sergey Kislyak were being discussed in real time with a “senior member of President-elect Trump’s Transition Team” and a “very senior member of the Presidential Transition Team.” The document notes that the “senior member” was with other transition officials at the Mar-A-Lago resort in Florida, where President-elect Trump was staying at the time. Some reports indicate that the “senior member” is Flynn’s former deputy K.T. McFarland and the “very senior member” is Trump’s son-in-law Jared Kushner.

Regardless, Flynn knows who they are and is prepared to testify about them, according to the plea agreement. This disclosure sheds new light on the reports that Kushner sought a back channel for communication with Russia during the transition. Flynn likely can confirm or refute this report and explain why any back channel for communicating with Russia might have been sought. (Kushner denied it was a “secret back channel” and said communications were to be about Syria.)

And unlike Papadopoulos, who has already pleaded guilty and agreed to cooperate with Mueller’s team, Flynn was a high-level member of Trump’s team who was involved in the campaign for a long period of time. Flynn cannot be dismissed as a low-level volunteer. Flynn likely knows about any coordination between the campaign and Russia to interfere in the election, efforts to obtain information about Hillary Clinton, and any assistance in Russia’s cyber efforts to influence the election, such as the hacking and releasing of emails and the use of social media to influence voters. He likely will sit down with Mueller’s team for lengthy debriefing sessions if he has not done so already.

Cooperators Get Good Deals

Next, the plea agreement permits Flynn to plead guilty to a single count of making false statements, a relatively minor crime with a calculated sentencing guidelines range of zero to six months in prison. This document signals to other subjects of the investigation that they, too, might be able to get a good deal if they cooperate with Mueller. It might be too late for such a deal for Paul Manafort and Richard Gates, who were charged by the special counsel with a variety of fraud crimes in October, but not for others.

The Statement of Offense is not a document that Mueller is required to file. Why, then, did he file it? In part, no doubt, he wants to lock Flynn into what he will testify to if necessary at any trial. But if locking in Flynn’s statement was Mueller’s goal, he could do that by having Flynn testify under oath and in private before the grand jury. So why make it public? The “senior member” and “very senior member” of the transition team mentioned in the documents know who they are. Including this language in a public document sends a message to them that if they want to cooperate, now is the time, and perhaps, they, too, can get a good deal.

Lying to the FBI Is a Big Deal

Mueller’s charges against Flynn and Papadopoulos make it clear that he takes lying to the FBI very seriously. Lying to the FBI is a significant crime because it makes it harder for investigators to uncover the truth. As a result, when FBI agents interview subjects, they show their badges to make sure that the person knows that they are in fact FBI agents. They tell the person that lying to the FBI is a crime. This occurs for two reasons, (1) to provide fair notice to the person that he should take this interview seriously and that lying brings significant consequences, and (2) to help prove at trial the essential element of the crime that the person was aware that lying to the FBI was illegal. This protocol was likely followed in this case.

Flynn, like Papadopoulos, who has already pleaded guilty for lying to the FBI, is getting a pass for other crimes, but not for lying to the FBI. Mueller likely wants to hold accountable individuals who lie to the FBI and wants to deter lying by other subjects who are to be interviewed down the road.

Obstruction of Justice

The documents also raise the heat on the obstruction of justice investigation into President Trump. It now appears that when Trump allegedly asked then-FBI Director James Comey to let the investigation into Flynn go after Flynn was caught lying to the FBI, and later fired Comey when he did not, Trump was aware that the investigation could implicate not just Flynn, but also senior members of his transition team, and perhaps even himself. This information provides additional evidence that Trump may have acted “corruptly” when he fired Comey, the required motive under the obstruction of justice statute.

Left Unanswered

The documents raise some other questions. Why did Flynn lie to the FBI in the first place? One theory is that his conduct may be a violation of a statute known as the Logan Act, which prohibits ordinary citizens from negotiating with foreign governments. This statute, though, is rather obscure and has never been enforced. It seems unlikely that Flynn even knew about the statute at the time he was interviewed.

If Flynn was not concerned about prosecution under the Logan Act, was he concerned about the appearance of undermining U.S. foreign policy? Was he trying to protect other members of the transition team? Why did he talk to Russians in the first place before the inauguration? Was this the first time they had talked? Were these conversations somehow connected with an overall strategy by Russia to not only interfere with our election, but also the conduct of their preferred candidate once he was in office? This is all part of the quest for the truth by Mueller and his team, and Flynn may have the answers.