Lawfare

The Unsolved Mystery of Michael Flynn’s Plea Deal

It might be a dramatic breakthrough in the investigation of Donald Trump — or a revelation of Robert Mueller’s weak hand.

Michael Flynn after his plea hearing at the Prettyman Federal Courthouse on December 1, 2017 in Washington, DC. (Chip Somodevilla/Getty Images)
Michael Flynn after his plea hearing at the Prettyman Federal Courthouse on December 1, 2017 in Washington, DC. (Chip Somodevilla/Getty Images)

One week after former national security advisor Michael Flynn’s plea deal, it still is not all that clear what it means. Close observers of special counsel Robert Mueller’s probe into Russian meddling in the 2016 election are divided — with some suggesting the plea signifies a dramatic breakthrough for the prosecutor and others suggesting it signifies a comparatively weak hand on his part on matters of collusion. The fortune-tellers have pored over the tea leaves, and the results are in dispute.

The reason is the plea’s narrowness compared to the astonishing swath of public allegations of potentially criminal conduct on Flynn’s part. Reputable newspapers had reported Flynn’s failure to register under the Foreign Agents Registration Act, failures to disclose foreign contacts as required on his security clearance forms, large transactions with foreign actors, involvement in a strange influence-peddling scheme over nuclear plants, and even involvement in a kidnapping plot. Press accounts have indicated that Flynn’s son Michael Flynn Jr. also had exposure and that protecting his son was a priority for the elder Flynn. Yet the plea itself was limited. It was only one count for a set of false statements to the FBI. Not a good look for Flynn, to be sure, but far less than what most observers were expecting.

The conventional view, which we reflected on the day the plea was announced, was that this showed both that Mueller had given Flynn a good deal and that he was presumably getting something important in exchange:

If Mueller were prepared to settle the Flynn matter on the basis of single-count plea to a violation of [false statements], he was almost certainly prepared to charge a great deal more. Moreover, we can infer from the fact that Flynn accepted the plea deal that he and his counsel were concerned about the degree of jeopardy, both for Flynn and for his son, related to other charges. The deal, in other words, reflects the strength of Mueller’s hand against Flynn.

It reflects something else too: that Flynn is prepared to give Mueller substantial assistance in his investigation and that Mueller wants the assistance Flynn can provide. We are not going to speculate about what that assistance might be. But prosecutors do not give generous deals in major public integrity cases to big-fish defendants without good reason—and in normal circumstances, the national security adviser to the president is a very big fish for a prosecutor. The good reason in this case necessarily involves the testimony Flynn has proffered to the special counsel’s staff. The information in that proffer is not in any of the documents released Friday, and it may not even be related to the information in those documents. Prosecutors tend to trade up. That is, for Mueller to give Flynn a deal of this sort, the prosecutor must believe he is building a case against a bigger fish still.

In the wake of the plea, however, a dissenting view emerged, mostly among veterans of the U.S. Attorney’s Office for the Southern District of New York. Writing in the National Review, former Assistant U.S. Attorney for the Southern District of New York Andrew McCarthy read the plea very differently:

While initial reporting is portraying Flynn’s guilty plea as a major breakthrough in Mueller’s investigation of potential Trump-campaign collusion with the Russian regime, I suspect the opposite is true.

. . .

[A]s I explained in connection with George Papadopoulos (who also pled guilty in Mueller’s investigation for lying to the FBI), when a prosecutor has a cooperator who was an accomplice in a major criminal scheme, the cooperator is made to plead guilty to the scheme. This is critical because it proves the existence of the scheme. In his guilty-plea allocution (the part of a plea proceeding in which the defendant admits what he did that makes him guilty), the accomplice explains the scheme and the actions taken by himself and his co-conspirators to carry it out. This goes a long way toward proving the case against all of the subjects of the investigation.

That is not happening in Flynn’s situation. Instead, like Papadopoulos, he is being permitted to plead guilty to a mere process crime.

Before you dismiss McCarthy and this analysis because of McCarthy’s conservative politics, understand that he’s not the only one making this point. So is Preet Bharara, the former U.S. attorney for the Southern District of New York whom President Donald Trump fired earlier this year. In his podcast this week, Bharara made an argument similar to McCarthy’s, suggesting that the best read of the plea agreement may be that a relatively narrow false statements case emerged because that was all that Mueller had against Flynn.

Bharara said that he “hate[s] to say it” but he doesn’t think Flynn got a sweetheart deal from Mueller despite broad exposure on other crimes. In the Southern District of New York, he said, when he reached a plea deal with flipping defendants, “we made them plead guilty to every bad act that they had ever done, especially if we were later going to be alleging other people had engaged in that activity as well.” The idea is that if you want Person X to testify that he and Person Y did something together, it’s important to make Person X plead guilty to that action. If you let him plead guilty only to false statements instead, you will have branded your own witness chiefly as a liar and not used his plea to establish your case against Person Y.

Bharara acknowledges that not all federal prosecution offices function the way the district does on this point. But he concludes that “I tend not to think it’s the case that [Mueller] just wiped the slate clean with Michael Flynn … I just don’t buy it.… There’s a decent reason for thinking that [false statements is] all that Mueller has at this point.”

But Bharara acknowledges a third possibility, one we also teased in our initial article: Perhaps Flynn has pleaded guilty on the narrow false statements matter because it was done and discrete and doesn’t clearly implicate anyone else, with the idea of deferring other matters that may then be charged later. Flynn said at his plea hearing that the plea deal he reached was the entirety of his agreement with the government and agreed with the court that there were “no side oral agreements.” He also said that no one had made any promises in connection with the guilty plea other than what was represented in the document. So there is no other, secret plea agreement that is complete at this stage. But the plea documents give some reason to suspect that the prosecutors and Flynn may have pushed some matters off for separate resolution. As we wrote last week:

Section 3 of the plea agreement leaves Flynn unprotected against certain future prosecutions. The section is titled “Additional Charges” and states in its entirety that “In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense” (emphasis ours). The office, in other words, seems to be reserving the right to prosecute Flynn for conduct not set forth in that document, which is to say all of the other conduct on which he might be vulnerable.

Bharara speculates — as an alternative to the McCarthy theory — that perhaps prosecutors are not ready to bring the larger case implicating others just yet. Maybe they are deferring prosecution of Flynn on this larger matter on the theory that a guilty plea on his part now would create an untoward public taint toward those named but not yet charged and that a sealed indictment would likely leak.

In short, before us are at least three distinct theories of the Flynn plea:

Theory 1: that it reflects broad criminal exposure on Flynn’s part, a good deal for him from Mueller, and critical cooperation from him in exchange;

Theory 2: that it reflects a strong case on false statements from Mueller but nothing else and is thus a sign that Mueller has relatively little else, particularly on collusion; or

Theory 3: that it reflects the resolution of the cleanest, ripest issue and the deferral of other potentially more dramatic issues for a later date.

Each of these theories offers some value. Each also presents problems.

Theory 1 certainly offers the simplest explanation of why Flynn is not being charged with a far wider range of offenses. And in their critique of it, Bharara and McCarthy approach the question with something of an Southern District of New York bias. In other jurisdictions, prosecutors will not always make people plead to the most serious charges that they can prove; rather, a fair bit of bargaining goes on up front with respect to what charges the defendant pleads to. But McCarthy and Bharara are not wrong to ask whether, if Flynn is getting a bye on all these other charges, Mueller is setting up a situation in which his star witness has not pleaded to any of the activity to which he will presumably be testifying.

More importantly, if Mueller has horse-traded away important charges, why is the plea immunity quoted above limited to the conduct described in the statement of offense? That would seem to make it difficult for Flynn to cooperate with investigators looking at those matters without exposing himself to serious criminal jeopardy: He’s obliged to cooperate, according to the plea agreement, and cooperation as the plea agreement defines it specifically covers any matters that Mueller’s office might wish to discuss. But he’s also not promised that he or his son won’t be prosecuted for things he says or admits or that are based on evidence he helps uncover.

Conversely, Theory 2 has mirror image benefits and problems. Like Theory 1, it presents a neat explanation for why the plea deal is so spare: in this case, because Mueller didn’t have all that much on Flynn. In this version of the story, the reason the plea immunity is limited to the statement of offense is that prosecutors have nothing beyond false statements to charge Flynn with in the first place. Supporting Theory 2 is the fact that the plea agreement runs at least a little broader than the simple lies. It covers as well the matters underlying those lies described in the statement of offense, including the false registration filings under the Foreign Agents Registration Act with respect to Turkey and any substantive violations arising out of Flynn’s calls with Sergey Kislyak.

The trouble with the theory is that it asks us to believe that of all the weird activity with which Flynn’s name has been connected, the worst allegations that panned out were a few false statements and that after a few months of investigation, Mueller’s team doesn’t expect to find much more. This is certainly possible. But given what’s been reported, even without the kidnapping plot, it’s a little bit hard to believe. And it’s hard to see why Mueller would leave so many other false statements and undisclosed matters unprosecuted if he weren’t getting something substantial from Flynn in return.

Moreover, Flynn’s lawyers are capable guys. It’s a bit hard to imagine that if Mueller had decided not to prosecute him on a bunch of serious matters, Flynn’s attorneys wouldn’t get that in writing. If Theory 2 is right, you have to imagine that Mueller is not willing to grant broader plea immunity, because he’s actively reserving the right to prosecute Flynn if additional information on those matters comes up. But that again raises the question of how Flynn can cooperate under those circumstances.

One possible way to square the circle is to imagine that some combination of Theories 1 and 2 is the reality: Perhaps Mueller had little more than false statements on Flynn but Flynn is cooperating and providing something substantial about which he may personally have little exposure. In this scenario, imagine Flynn’s contribution as modest but significant — not a bombshell, but important. In addition to Flynn’s help, Mueller gets to not go to trial — thus saving himself time and effort. Imagine that all Mueller has to give up to get these benefits are a few additional counts of lies and disclosure violations. This is not such a big deal for him to trade away.

Finally, Theory 3 would explain a lot. It would explain why the agreement is so narrow (because the rest of the Flynn material has been deferred), and it would explain why Flynn is not immunized beyond the scope of the statement of offense (because he’s still actually facing future charges). But again, Flynn specifically disclaimed at his plea hearing that he had any other understanding with the government. And it remains unclear how he could cooperate with the probe with additional major criminal charges hanging over his head without jeopardizing his own legal interests and potentially incriminating himself.

All of which is to say that there’s something about the Flynn plea that doesn’t make sense. There’s something important going on here that is not in the public documents and that the press has not reported. We don’t purport to know what it is. Mystery reigns.

Susan Hennessey is managing editor of Lawfare.

Benjamin Wittes is editor in chief of Lawfare.

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