Executive Branch

Flynn’s Plea and the Significance of the Lying in the Russia Investigation

Bob Bauer
Monday, December 4, 2017, 7:00 AM

The interpretation of the Flynn plea is subject to the usual risks that someone—Robert Mueller—knows far more than anyone else, and with what is available on the public record, it may be impossible to appreciate how this piece fits into the mosaic of the special counsel’s investigation. So some may believe it is safest to give the event the narrowest possible reading.

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The interpretation of the Flynn plea is subject to the usual risks that someone—Robert Mueller—knows far more than anyone else, and with what is available on the public record, it may be impossible to appreciate how this piece fits into the mosaic of the special counsel’s investigation. So some may believe it is safest to give the event the narrowest possible reading. Michael Flynn, the former national security adviser, lied to the FBI to cover up Trump transition team activities that he thought it best not to acknowledge. On this account, Flynn may have been concerned about the propriety of contacts with Russia before the inauguration to shift U.S. policy on sanctions and the U.N. Security Council vote on Israeli settlements. So much, then, for this phase of the case: Now we wait to see what else Flynn may disclose to the special counsel as part of their cooperation agreement.

This is not a wholly mistaken view of the Flynn plea, but it is a limited one. It fails to connect Flynn’s lies about the calls with the Russian ambassador to the others just like them told repeatedly by the president and his associates. Indeed, the president has led the charge in denying any contacts between Russia and his campaigns, denouncing as a “hoax” the suggestion of collusion, and he has had a hand in directing others to dissemble about Russia-related communications. For example, we have the extraordinary revelation that the president dictated a press release falsely stating the purpose and substance of the meeting in Trump Tower between his son and other members of the campaign staff, and a traveling party from Moscow offering campaign support and derogatory information about Hillary Clinton. The Flynn lies are just the latest in the series.

Why all the lying? It is easy to understand certain of the individual instances. Telling the truth about the Trump Tower meeting must have seemed unimaginable. It would have required the campaign to admit that it welcomed help from the Kremlin and met in private to accept what the emissaries from Moscow came to offer. And the campaign would never have been persuaded of the wisdom of coming clean about Trump’s son’s correspondence with WikiLeaks.

It is less clear why Flynn would have lied to the FBI about his phone calls with Ambassador Kislyak in December 2016. True, it might have been uncomfortable to tell the truth. While an incoming administration will often have every intention, some of it openly expressed, of reversing the policies of the previous one, the Flynn-Kislyak understandings go well beyond the norms governing the conduct of a policy transition from one administration to the next. This is especially the case where, as reported by The New York Times, the Obama administration had specifically requested that the Trump transition desist from sending “conflicting signals to foreign officials before the inauguration and to include State Department personnel when contacting them.”

But Flynn could have framed a response more honest and far less hazardous than outright lies. After all, Trump had publicly objected to the sanctions and had aggressively opposed the U.N. Security Council Resolution condemning Israel. Flynn could have taken the position that he merely affirmed to the Russians what they would have understood in any case about the campaign’s policy positions. Awkward, yes. But he could have better weathered the questions about the propriety of these contacts, or their legality under the Logan Act, than the risks of lying to the FBI.

Why, then, the lies? It is certainly possible that Flynn was directed or encouraged to lie, with the president somehow believing that, in the worst case, he could work it out with Comey and that the FBI would “let it go.” Philip Bobbitt raised this possibility in May of this year, and the facts that have since come to light add support to his conjecture.

It would be remarkable—and highly unlikely—that Flynn would fail to alert superiors that the FBI sought to interview him about the Kislyak phone calls. Flynn is a military man with rigorous training in following the chain of command. However inconsistent his performance on this score may have been over the years, the calls with senior transition officials in December in which he sought direction on the sanctions and U.N. matters, do not suggest that he had somehow gone rogue in his new national security advisory role—and not on this particular issue. A request from the FBI for an interview would have surely triggered a report up the chain. Was he counseled—and if so, by whom—on what he would say? Yet if Flynn somehow did not consult with his superiors prior to the interviews, it is well nigh inconceivable that he would not have done so afterward.

In any event, on Jan. 26, two days after Flynn’s FBI interview, Acting Attorney General Sally Yates informed the White House that Flynn had misrepresented his conversations within the administration. And if he lied to the vice president, among others, it would have been reasonable for the president and the senior staff to be concerned that he had not been truthful with the F.B.I. The White House counsel asked Yates specifically how Flynn “did” in the interview. Yates declined to respond, which should not have been reassuring.

It would not have been too late for the White House to look into the matter and direct Flynn to “clean up” the interview record. Instead, Flynn stuck to his story, only acknowledging weeks later on Feb. 9, through a spokesperson, that he could not recall such a discussion but “couldn’t be certain that the topic never came up.” As late as Feb. 8, in a comment to the Washington Post, Flynn continued to deny that his conversation with Kislyak included an exchange about sanctions.

It is perhaps a striking coincidence, but the day after the Yates’ disclosure to the White House, Trump called the FBI director, invited him to dinner the same evening, and asked him for a pledge of loyalty. Then, on Feb. 14—the day after Flynn resigned—the president asked Comey whether he might consider “letting Flynn go.” It is critical to bear in mind that the context for this specific request was Flynn’s misrepresentations about the Kislyak conversations, but in the administration’s stated reasons for the resignation, the lies requiring Flynn’s departure were those told to the vice president. Had the president concluded that lying to the vice president was somehow a crime—a suggestion that his White House counsel discounted in conversations with the acting attorney general? Or did Trump’s concern with Flynn’s legal exposure arise from knowledge that the former national security adviser had lied to the FBI?

The day after the plea deal, the president tweeted out the statement, for the first time, that he fired Flynn not only because he had lied to the vice president, but to the FBI too. Commentators responded immediately that this admission weakened his defense against an obstruction claim. It is not clear how much this tweet really adds to Trump’s exposure: He was already amply exposed because whatever liability the president imagined that Flynn faced, he asked the FBI director to abandon a criminal investigation. The more pressing question is when the president knew that Flynn had lied—or would lie. (In a curious turn in the tale, one of his lawyers, John Dowd, has taken responsibility for composing the tweet. Something new every day: Now the lawyers are writing tweets for the president about a criminal investigation.)

Another new statement from the White House gives still more reason to question what the president knew and when he knew it—or perhaps more to the point, what the president did and when he did it. The White House is now insisting that the president was not aware that Flynn had discussed sanctions with Kislyak and that Mr. Flynn denied it to him. But why would the president not have known that Flynn had such a conversation, and why would Flynn have denied it? The Trump transition opposed the sanctions, and the president and his legal team have insisted that there was nothing at all illegal, much less improper, about including the topic in the transition contacts with the Russian government. There is now documented evidence that Flynn was not a “rogue” official but kept in close contact with senior transition officials on this very issue. And on the day of the Dec. 29 Flynn-Kislyak conversation, the president was scheduled to speak with his national security team at 5 p.m. Why, then, this surprising denial of the president’s knowledge of the contacts with the Russians about sanctions?

The answer lies in Trump’s sensitivity—and the reason for that sensitivity—to any suggestion that he was paying off the Russians for their help in the campaign. That this was a concern during the transition is clear from the deputy national national security adviser K.T. McFarland’s December 29 emails, which reflect a preoccupation the Democrats’ use of sanctions policy in “discrediting Trump’s victory.” The fear was an assault on “election legitimacy,” as another adviser on the email chain wrote. So Trump was then, and remains today, stuck between both defending and seeking to disavow the Flynn-Kislyak discussion. But if Trump is worried about it now, he would have been just as concerned about it at the time, and he would have had a clear motive to keep it under wraps.

Whether this resulted eventually in Flynn’s telling an otherwise inexplicable lie to the FBI is an entirely reasonable question. It is just as, if not more, reasonable than believing that Flynn, who observed discipline on this issue in other respects, struck out on his own in an interview with the FBI and lied to the president about a discussion about sanctions with a foreign ambassador that clearly reflected transition policy (and that therefore, he had no reason to lie about).

This history, as far as it is known, does not clearly establish that the president or someone acting at his orders directed Flynn to lie to the FBI. But Trump’s well-established instinct to exaggerate, conceal or fabricate—and to expect others to do so on his behalf—does not allow this possibility to be ruled out. It is a point on which the special counsel is sure to press those with knowledge of the events.

Regardless of how the evidence develops on what Trump knew before the Flynn conversation with the Russian Ambassador, his behavior thereafter is exceedingly unhelpful to him. He knew there were major problems with Flynn’s account of the FBI interview, and for two weeks, he acted only to protect his national security adviser, going so far as to attempt to call off an ongoing criminal investigation.

His solicitude for Flynn continued in the period after the investigation, and his private exhortation to Flynn that he “stay strong” now assumes fresh significance. Perhaps, as associates of the president have suggested, the president was applying a human touch, expressing concern for a well-liked supporter and associate experiencing dark days. A less benign explanation is that Flynn was paying a high price for entering into a conversation with the Russians that was consistent with the president’s wishes and directions, including Trump’s the expectation that he not admit to this specific discussion.

The question remains: Why the lying? It seems that the Flynn lies make sense if connected to the others told by Trump and others with Trump’s knowledge about the Russian relationship over the course of his campaign and presidency. Trump has boasted periodically about the transformative potential of an improved diplomatic and strategic relationship with Russia. But at the same time, he has categorically rejected suggestions that the relationship was personally or politically beneficial to him. Trump denied extensive business or financial ties to Russia and any political alliance built on mutual interest, which during the campaign included a shared animus toward Clinton and the objective of electing him. In numerous instances, Trump’s claims have foundered on the known facts. He and those acting under this direction have engaged in an extensive pattern of misleading and flatly false statements about the Russia relationship.

Of course, one could conclude that Trump has misread his exposure on the Russia relationship and has lied to no purpose in the end except to cause avoidable problems for himself. In other words, as some defenders of the president may argue, it all looks worse than it is, and the president cannot help making it look worse. He goes overboard and heaps falsehood on top of falsehood, even where the truth would be less harmful than the lies.

Or one could just as plausibly conclude that once Trump had for all intents and purposes made another of his “deals”—this time with a foreign government and for a benefit that was political, personal, or both—he felt compelled to embark on a program of lies and to enlist the full cooperation of is aides and associates. This is a deal he could not admit to have made. And the lying, especially the lying under his direction, may be the best evidence so far on the public record that he thought he had a deal that had to remain denied—whatever the risk of lying.

What very plausibly motivated the specific lies in the Flynn case was a need to deny specific, private commitments to Russia that tend to support the appearance of, and substantiate the affirmative case for, what might be termed a special understanding with the Putin regime. Perhaps any such indication would have seemed especially dangerous in the immediate aftermath of the campaign, when the Russians had been identified as aggressively intervening on his behalf—and with his encouragement—in the election. Trump may have felt extremely uneasy about the appearance of an American quo for the Russian quid.

The McFarland and other transition team emails in late December 2016 may lead some to argue that Trump was worried only about political perceptions and political attacks. But we now know that he may have been worried about more than that. His campaign had hosted a delegation from Moscow with an offer to help with the campaign; one of his foreign policy advisers had heard prior to their release about the “thousands” of emails secured by the Russian government; and his son had communicated with WikiLeaks about the most fruitful exploitation of the hacked material. And this is only what has surfaced publicly.

David French, writing about the Flynn plea agreement for the National Review, prefers to separate the lying from allegations of collusion and finds plenty of the former and no evidence for the latter. He concludes that the Flynn agreement is a “body blow” to the collusion theory. This judgment requires a certain confined perspective on the lies and their purpose, and the president’s role in the fabrications. It is also understandably the one that the president embraced the Saturday morning after the Flynn plea deal became public. He is confident that, as he told members of the press, “what has been shown is no collusion, no collusion. There has been absolutely no collusion.” He added: “So we're very happy.”

It appears, then, that there is emerging a defense that a number of people told foolish lies, but nothing of more global significance. The president promoted this view specifically in another post-plea statement, by tweet: It was “a shame” that Flynn had lied to the FBI, “because his actions during the transition were lawful.” He ended the tweet: “There was nothing to hide!”

But perhaps there was. On a more comprehensive view, when examining the Flynn lies within the overall context of the stream of misrepresentations and known facts about the Russia relationship with Trump and his 2016 campaign, the Flynn episode is a good reason to expect intense, continuing investigative focus on the Russia connection. That is a more plausible ground for the lying, and the president’s involvement in it, than anxiety about the propriety, legality or political fallout from conversations with the Russians only weeks before taking office—and about issues on which his position was well known. The question of what has been generically called “collusion” is what has most concerned the president, what he has most vehemently challenged, and what would most motivate him to enlist others like Flynn in a program of concealments or falsehoods. It is useful in considering this possibility to once more recall the president’s dictation of the fallacious account of the Trump Tower campaign meeting with the Russian emissaries.

All of this activity to mislead or conceal may in the end prove futile. It is now Flynn’s turn to talk. Meanwhile, the president’s lawyers are quietly preparing for the worst, by arguing that even if there was collusion, it would not be a crime. The Flynn plea may move the case much closer to the moment when the president and his legal team will be required to test that theory in the real world conditions of a grand-jury room and then a court.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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