Benjamin Wittes and a small team of his colleagues present a first cut at interpreting the implications of the Flynn indictment on Lawfare. Among the many takeaways:
The most important revelation here is that contrary to [Trump’s attorny, Ty] Cobb’s statement Friday morning, Flynn is saying clearly that he was not a rogue actor but was operating at the behest of the presidential transition team. He states that a “very senior member of the Presidential Transition Team,” a “senior official of the Presidential Transition Team” and “senior members of the Presidential Transition Team” were involved in directing his actions. The stipulated facts also make clear that Flynn reported back to the transition on his conversations with Kislyak.
Second, take a moment to remember the context in which Flynn’s underlying conduct took place: He and apparently the Trump transition team were working to undermine U.S. foreign policy goals endorsed by both parties. In December 2016, President Obama authorized sanctions against Russia in response to cyber-enabled election interference. He did so with broad bipartisan support to deter such activity in the future against the U.S. and its allies. The shared bipartisan—even nonpartisan—goal was to protect foundational elements of democracy and legitimacy. To the extent that there was mainstream criticism of the action, it was for being too weak, not for being too aggressive with respect to Russia.
And so Flynn is just part of the team, which means there will be more indictments. Will this Greek tragedy come to an end, or is Trump going to try to ride this right into the side of a mountain? I’m guessing his ego won’t let him resign and let the nation get on to the task of healing – we’ll have to endure some sort of impeachment, even possibly a criminal trial.
It’s an interesting article, seeing how experienced lawyers interpret a plea agreement in one of the most unusual contexts in American history – the investigation of a Presidential campaign and even Administration.
Andrew McCarthy on National Review prefers to see corruption in the Obama Administration:
Obviously, it was wrong of Flynn to give the FBI false information; he could, after all, have simply refused to speak with the agents in the first place. That said, as I argued early this year, it remains unclear why the Obama Justice Department chose to investigate Flynn. There was nothing wrong with the incoming national-security adviser’s having meetings with foreign counterparts or discussing such matters as the sanctions in those meetings. Plus, if the FBI had FISA recordings of Flynn’s conversations with Kislyak, there was no need to ask Flynn what the conversations entailed.
Flynn, an early backer of Donald Trump and a fierce critic of Obama’s national-security policies, was generally despised by Obama administration officials. Hence, there has always been cynical suspicion that the decision to interview him was driven by the expectation that he would provide the FBI with an account inconsistent with the recorded conversation — i.e., that Flynn was being set up for prosecution on a process crime.
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.
Speculation that Flynn is now cooperating in Mueller’s investigation stirred in recent days due to reports that Flynn had pulled out of a joint defense agreement (or “common interest” arrangement) to share information with other subjects of the investigation. As an ethical matter, it is inappropriate for an attorney whose client is cooperating with the government (or having negotiations toward that end) to continue strategizing with, and having quasi-privileged communications with, other subjects of the investigation and their counsel.
Nevertheless, as 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.
McCarthy seems to ignore the possibility that Mueller may select a different strategy than McCarthy sees and interprets. He also forgets that Flynn may be protecting his own son, Mike, Jr., who is thought to also have been a part of this scandal – although he’s not charged. He may function as extra leverage for Mueller.
