Executive Branch

The Flynn Plea: A Quick and Dirty Analysis

Susan Hennessey, Matthew Kahn, Vanessa Sauter, Shannon Togawa Mercer, Benjamin Wittes
Friday, December 1, 2017, 5:19 PM

The news that former national security adviser Michael Flynn has reached a cooperation and plea deal with Special Counsel Robert Mueller could not come as less of a surprise. Reports of Flynn’s bizarre behavior across a wide spectrum of areas began trickling out even before his tenure as national security adviser ended after only 24 days. These behaviors raised a raft of substantial criminal law questions that have been a matter of open speculation and reporting for months.

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The news that former national security adviser Michael Flynn has reached a cooperation and plea deal with Special Counsel Robert Mueller could not come as less of a surprise. Reports of Flynn’s bizarre behavior across a wide spectrum of areas began trickling out even before his tenure as national security adviser ended after only 24 days. These behaviors raised a raft of substantial criminal law questions that have been a matter of open speculation and reporting for months. His problems include, among other things, an alleged kidnapping plot, a plan to build nuclear power plants all over the Middle East, alleged violations of the Foreign Agents Registration Act (FARA) involving at least two different countries, and apparent false statements to the FBI. In light of the scope and range of the activity that reputable news organizations have attributed to Flynn, it is no surprise that he has agreed to cooperate with Mueller in exchange for leniency.

The surprising thing about the plea agreement and the stipulated facts underlying it is how narrow they are. There’s no whiff of the alleged Fethullah Gulen kidnapping talks. Flynn has escaped FARA and influence-peddling charges. And he has been allowed to plead to a single count of lying to the FBI. The factual stipulation is also narrow. It involves lies to the FBI on two broad matters and lies on Flynn’s belated FARA filings on another issue. If a tenth of the allegations against Flynn are true and provable, he has gotten a very good deal from Mueller.

The narrowness gives a superficial plausibility to the White House’s reaction to the plea. Ty Cobb, the president’s ever-confident attorney, said in a statement: “The false statements involved mirror the false statements [by Flynn] to White House officials which resulted in his resignation in February of this year. Nothing about the guilty plea or the charge implicates anyone other than Mr. Flynn.” Cobb reads Friday’s events as an indication that Mueller is “moving with all deliberate speed and clears the way for a prompt and reasonable conclusion” of the investigation.

This is very likely not an accurate assessment of the situation. If Mueller were prepared to settle the Flynn matter on the basis of single-count plea to a violation of 18 U.S.C. § 1001, 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.

There’s another peculiar nuance: 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. It is hard to know what to make of this language. It could mean nothing at all. It could mean that the threat of further prosecution is being held over Flynn’s head if he does not hold up his end of the bargain. It could mean that another plea agreement covering other matters is coming.

What Flynn Admits

Narrow though their coverage is, the documents released Friday shed a lot of light on several aspects of L’Affaire Russe. Let’s start with the facts to which Flynn has admitted.

According to the statement of the offense, on Jan. 24, 2017, Flynn voluntarily agreed to an interview with FBI agents, during which he said “he did not ask Russia’s Ambassador to the United States … to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia.” He also said “he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response” in response to Flynn’s requests.

Those statements were false. Flynn now says he knew during the Jan. 24 interview that on Dec. 28, President Barack Obama had signed an executive order imposing sanctions against Russia for its interference in the 2016 presidential election. That same day, Russian Ambassador Sergey Kislyak contacted Flynn.

The next day, Flynn “called a senior official of the Presidential Transition Team … who was with other members of the Presidential Transition Team at the Mar-a-Lago resort … to discuss what, if anything, to communicate to the Russian Ambassador” about the sanctions. Flynn’s conversation with the transition-team official included “the impact of those sanctions on the incoming administration’s foreign policy goals” and “that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.”

Immediately after the Mar-a-Lago phone call, Flynn called Kislyak to ask “that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.” Shortly after his conversation with Kislyak, Flynn called the official at Mar-a-Lago again “to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.” Flynn knew that on Dec. 30, “Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.” On Dec. 31, Kislyak called Flynn “and informed him that Russia had chosen not to retaliate in response to [his] request.” Flynn then “spoke with senior members of the Presidential Transition Team about [his] conversations with the Russian Ambassador regarding U.S. Sanctions and Russia’s decision not to escalate the situation.”

Sanctions aren’t the only subject on which Flynn acknowledges making false statements. During the Jan. 24 interview, Flynn also made false statements “about calls he made to Russia and several other countries regarding a resolution submitted by Egypt” to the U.N. Security Council on Dec. 21, 2016, condemning Israeli settlements. Flynn told FBI agents “that he only asked the countries’ positions on the vote, and that he did not request that any of the countries take any particular action on the resolution.” He “also falsely stated that the Russian Ambassador never described to him Russia’s response to [his] request regarding the resolution.”

Flynn now admits that he knew at the time that the Security Council was scheduled to vote on the resolution Dec. 22, the day after it was introduced. On Dec. 22, “a very senior member of the of the Presidential Transition Team directed [Flynn] to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.” (Note the word “very” before “senior” in that sentence.) That day, Flynn contacted Kislyak about the vote. He “informed the Russian Ambassador about the incoming administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution.” The following day—Dec. 23—Flynn spoke to Kislyak, who told Flynn that “if it came to a vote Russia would not vote against the resolution.”

Finally, Flynn made false statements in FARA filings pertaining to a project that his company, the Flynn Intel Group, performed “for the principal benefit of the Republic of Turkey.” Flynn made “materially false statements and omissions,” including that (1) the Flynn Intel Group “did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project”; (2) “the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey”; and (3) an op-ed that Flynn wrote and “published in The Hill on November 8, 2016 was written at his own initiative.” He also omitted “that officials from the Republic of Turkey provided supervision and direction over the Turkey project.”

What It All Means

The most important revelation here is that contrary to 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.

Susan Hennessey and Matt Tait wrote at the time about why it was important to respond to Russian interference in the U.S. election:

It is critical that we revisit the question of Russia’s role now, not as a means to extract vengeance or to delegitimize the election result, but because there remains an urgent need for a response that establishes credible deterrence against future attacks on the United States and its allies which is currently lacking… [W]e can expect Russia to stay the course of using cyber attacks and disinformation strategies to disrupt Western democracies unless and until it is—as [GOP Senator Lindsey] Graham puts it—forced to “pay a price.” And considering what is at stake to gain and to lose, that price must be steep.

When the sanctions against Russia were announced, there was a flurry of reports regarding possible retaliation by the Russians, including a plan to close the American school in Moscow and to expel U.S. diplomats. Then, quite unexpectedly, Putin reversed course and decided not to retaliate at all.

Shortly thereafter, Donald Trump tweeted:

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.
Matthew Kahn is a third-year law student at Harvard Law School and a contributor at Lawfare. Prior to law school, he worked for two years as an associate editor of Lawfare and as a junior researcher at the Brookings Institution. He graduated from Georgetown University in 2017.
Vanessa Sauter is a program associate in the Cybersecurity & Technology Program at the Aspen Institute. She was previously an associate editor at Lawfare and received her bachelor's degree from Columbia University in 2016.
Shannon Togawa Mercer is a senior associate at WilmerHale. Her practice focuses on complex global data protection, privacy, and cybersecurity matters. Ms. Togawa Mercer has extensive experience counseling clients on cross border data protection and privacy compliance as well as cyber incident response. She has practiced in London and Washington D.C. and previously served as Managing Editor and Senior Editor at Lawfare. Ms. Togawa Mercer also served as National Security and Law associate at the Hoover Institution.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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