How Flynn Could Actually Take Down the Trump Administration
Special counsel Robert Mueller’s probe netted its first victim on Dec. 1, as former national security adviser Michael Flynn pleaded guilty to lying to the FBI. According to The New York Times, Flynn admitted lying about conversations with the Russian ambassador in December 2016. The special counsel’s probe includes possible collusion between the Russian government and members of President Donald Trump’s team, as well as obstruction of justice and financial impropriety. The complex investigation includes many moving parts. Here’s what we know so far.
1. Flynn took direction from a senior White House official
Documents released as part of Flynn’s plea agreement revealed telling details about his pre-inauguration discussions with Russian ambassador Sergey I. Kislyak. CNN reports that, according to a FBI statement, Flynn communicated with Kislyak on foreign governments’ stances on a coming U.N. Security Council resolution about Israel. Flynn says a “senior transition official” directed the meeting, but the prosecutors did not name specific people.
Court documents say that on Dec. 29, Flynn called a senior transition official “to discuss what, if anything, to communicate to the Russian ambassador about the U.S. sanctions.” That means, since Flynn did not act alone, more of Trump’s team will likely go down with him.
Next: Flynn did not work alone.
2. His admissions contradict Trump and other aides
Flynn marks the fourth person connected to Trump’s campaign charged as part of Mueller’s investigation. According to CNN, Trump’s former campaign chairman Paul Manafort and his deputy Rick Gates came under FBI indictment. They pleaded not guilty. Trump campaign foreign policy adviser George Papadopoulos also pleaded guilty for lying to the FBI over contacts with officials connected to the Russian government.
Immediately after Flynn’s court appearance, The White House said that “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,” said White House lawyer Ty Cobb, in a statement.
Next: He lied not once, not twice …
3. Flynn lied to the FBI on multiple occasions
According to the court filings, Flynn and Trump advisers discussed sanctions three times. He spoke with the transition team once to discuss the potential impact on the “incoming administration’s foreign policy goals.” Flynn then called Kislyak and asked that Russia not respond too harshly, which he then relayed to a Trump official. Russia chose not to retaliate to the sanctions, as a result. Flynn lied to FBI investigators about both of these calls, as well as Russia’s subsequent response.
The document also says that Flynn said he did not ask Kislyak to delay the vote on a pending United Nations Security Council resolution. In addition, Flynn lied to investigators about his conversations with foreign officials related to their planned U.N. Security Council votes on Israeli settlements.
Next: Flynn denied treason, but owned up to this.
4. The former security adviser has agreed to cooperate with investigators
In court, Flynn denied “false accusations of ‘treason,’” but to cooperate with federal prosecutors. The former national security adviser first came under investigation before he even made it to the White House, The New York Times reported. He secretly worked as a paid lobbyist for Turkey during the campaign and held the job in the White House less than a month. He resigned from the post after he misled Vice President Mike Pence and then-chief of staff Reince Priebus about his conversations with Kislyak.
Obstruction of justice could come to light related to Flynn’s role in FBI Director James Comey’s dismissal. In February, Comey testified before the Senate intelligence committee that Trump asked him to drop the Flynn probe, not long after Flynn resigned. That doesn’t give Trump’s immunity assurances much weight.
Next: Guess who wanted Flynn to get the job?
5. Trump’s children wanted Flynn in the administration
Flynn did not initially come under consideration for his job, but Trump’s kids stepped in. Daughter Ivanka Trump, and son-in-law Jared Kushner told the transition team they wanted him in, CNN reports. Top legal officials say Flynn’s deal means he has some dirt on someone else, potentially even the Trumps.
The fact that Flynn pleaded guilty to one charge means he got something in return, The Washington Post explains. “One doesn’t plead guilty unless you hope to get something out of it,” said Jack Sharman, who was special counsel to Congress during the Whitewater investigations into Bill and Hillary Clinton’s real estate affairs. Flynn gets to plead to a lesser charge, and the government gets what it wants: cooperation.
Next: Trump may have some recompense.
6. What can Trump do about it? Surprisingly, not a lot
Ten legal experts told Vox that if Trump tries to interfere in the investigation by pardoning key players, it will likely backfire. If the president preemptively pardons someone like Flynn, he can’t plead the Fifth Amendment if called to testify. The Fifth Amendment protects citizens against self-incrimination. Since a pardon removes the threat of prosecution, it also nullifies self-incrimination as an excuse not to answer questions.
One scenario might save Trump and his associations from potential prosecution. Susan Bloch, a law professor at Georgetown, calls it the Nixon scenario. “Trump pardons them [Flynn, Kushner, Manafort, and Donald Trump Jr.] as he is exiting the White House and Trump exits early, allowing Pence to become president, and Pence then pardons Trump,” she explained. “Trump will then have successfully shielded himself and his colleagues from criminal liability.”
Next: There’s a loophole in where the laws originate.
7. Pardons don’t count toward crimes committed at a state level
As Duke University law professor Lisa Kern Griffin explained, some of the offenses are also crimes under state law. Presidential pardons only work for federal offenses, so a blanket pardon could still leave defendants vulnerable. In addition, Griffin noted that, if Trump issues a pardon with the intent to influence a witness and impede the investigation, that’s obstruction of justice.
“Although he has the legal authority to pardon, he cannot use that power to commit another crime,” she explained. “A defendant in, say, a fraud case also has the ‘power’ to shred documents that belong to her, but doing so with the intent to shield those documents from a pending investigation would be criminal obstruction.”
Next: Trump’s pardon may have this surprising effect.
8. How pardoning Flynn could actually hurt Trump
According to Newsweek, pardoning Flynn et al could actually strengthen the case against Trump for obstructing justice. President Barack Obama’s former associate counsel Andrew Wright explained that Trump, “has the raw power to do it, but [pardoning Flynn] itself could be an act of obstruction of justice if he did it for the corrupt intent of thwarting the investigation.” If Trump did it to prevent Flynn from cooperating with the special counsel, that’s conspiracy.
“Pardoning him would have been a seismic event even before [Flynn’s guilty plea on Friday],” Wright said. But knowing what we do now, a pardon is “purely for a self-protective act rather than an act for in the best interest of the United States. And that’s the kind of abuse of trust the founders were concerned about with our democracy.”
Next: But what if he lies under oath?
9. Would his aides perjure themselves to protect Trump?
While lying under oath is considered perjury — a jailable offense — Trump could technically pardon that too. Law professor Joshua Dressler also pointed out that Trump could pardon him and the rest “all offenses he may have committed between the dates xxx-xxx.” While that person could not then assert the Fifth Amendment, they could refuse to testify. If they are then held in contempt of court, the president could pardon them out of that, too.
Savannah law school professor Amy Wright found a loophole, however. If Flynn still refused to testify, Congress could detain him in the Capitol building until he agreed to appear. This practice, called “inherent contempt,” would not be eligible for presidential pardon because it’s a civil, not criminal, detention.
Next: His law team’s actions so far give us a clue.
10. His actions make that look unlikely
The defendant’s lawyers stopped sharing information with the White House legal team recently, something Griffin said signals cooperation with Mueller. “He’s well underway in terms of cooperating with the special counsel,” Griffin told Newsweek. “He seems to have made the calculation that the favorable treatment that he would get from the government in exchange for his cooperation is the best outcome,” she said.
Whatever happens, the former security adviser’s plea marks a watershed moment for the Trump administration. From here, the president must tread carefully to prevent obstructing justice. He has to let the truth come out — regardless of what that means for him.
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