Criminal Justice & the Rule of Law

A Flynntriguing Sentencing Memorandum

Quinta Jurecic, Benjamin Wittes
Wednesday, December 5, 2018, 7:53 AM

Four quick takeaways from Robert Mueller’s account of Michael Flynn’s cooperation.

Published by The Lawfare Institute
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The media whipped up a bit of a frenzy yesterday in anticipation of Robert Mueller’s filing of his sentencing memorandum in the case of Michael Flynn, the former national security adviser who pled guilty to lying about his contacts with the Russian ambassador and his work for Turkey. The anticipation was understandable: Unlike some other Mueller targets, Flynn essentially vanished at the time of his plea in December 2017. His sentencing has been delayed five times in deference to his apparently ongoing cooperation. And Mueller has used sentencing memoranda in the past to spell out important information about the course of the investigation. So it was only natural to wonder what we were going to learn when Mueller finally had to lay out what Flynn has been doing all this time.

The document is not factually rich, to the evident disappointment of commentators who had been holding their breath for it all day. It doesn’t contain any details, at least none visible to the public, about what Flynn has provided investigators. It is a spare document, seven pages, along with a largely-redacted six-page supplement laying out what Flynn has done for Mueller. There’s no great revelation here.

There are, however, a few useful takeaways:

First, the document is chiefly interesting for what it doesn’t say. It doesn’t say that Flynn has breached his plea agreement and lied to investigators, as Mueller has said about Manafort. It doesn’t say that he failed to provide substantial assistance to the investigation, as Mueller said in the George Papadopoulos sentencing memorandum. It says, rather, that Flynn began cooperating early, that his early cooperation was important in encouraging other witnesses to be candid, and that he has provided substantial assistance to the probe in a number of areas.

Second, Flynn’s cooperation with federal authorities has been diverse and extensive. The document says he has met 19 times with the Special Counsel's Office and other components. His cooperation appears to involve not merely the Russia probe but also other matters as well. Putting this point together with the absence of complaints about Flynn’s behavior, the affirmative statement that he has given substantial assistance, and the recommendation that he get as little as no jail time, the only conclusion is that Mueller has gotten everything he needs from Flynn.

That does not, we want to emphasize, mean that Flynn has delivered the crucial goods that will bring everything crashing down. The goal of the Mueller investigation, after all, is not to bring everything crashing down. Rather, it means that Flynn told the truth and that his truthful information has aided investigators in resolving the matters before them. It means, in other words, that whatever questions remain at the end of the day, we can safely conclude, will not remain because Flynn was holding back.

Third, because the addendum to the sentencing memo is mostly redacted, one is left reading tea leaves in the document’s redactions. Some of these are reasonably legible. It seems that Flynn is cooperating in at least three ongoing investigations: a criminal investigation about which all details are redacted; Mueller’s investigation into “any links or coordination between the Russian government and individuals associated with the campaign of President Donald J. Trump”; and at least one additional investigation about which all information is redacted.

As BuzzFeed News’s Chris Geidner noted, it appears likely from the length of the redaction bar that the first criminal investigation is not a matter being conducted by the special counsel’s office—though, of course, it’s impossible to know for certain. Notably, however, the addendum does state that Flynn has “participated in 19 interviews with the SCO [Special Counsel’s Office] or attorneys from other Department of Justice [“DOJ”] offices,which would be consistent with significant cooperation in a matter not under Mueller’s jurisdiction (emphasis added).

Then there’s the meat-and-potatoes Russia investigation. The addendum describes Flynn’s cooperation here in two buckets: one regarding contacts between “individuals in the Presidential Transition Team and Russia,” and a second category that is entirely redacted. As to the first category, the addendum doesn’t provide any information that wasn’t already publicly known, but Mueller didn’t need to redact that portion because it dealt with matters related to the substance of Flynn’s plea itself; the question is what’s lurking behind that second set of redaction marks.

Most mysteriously, there appears to be at least one more matter in which Flynn is cooperating about which the document makes public nothing at all. This is likely spelled out in a shorter redacted section under the addendum’s description of Flynn’s cooperation in the Russia matter, taking up just five lines of text.

Fourth, there’s been a lot of talk recently about the investigation winding down. Every few months, the president’s lawyers suggest wistfully that Mueller’s work might be nearing its end. More seriously, Michael Isikoff recently reported that “Mueller’s prosecutors have told defense lawyers in recent weeks that they are ‘tying up loose ends’ in their investigation” and have spoken with most of the people they need to in their inquiry into obstruction of justice.”

That may be true in some sense, but it doesn’t mean that things will be drawing to a close in the immediate term. Mueller still has one public active grand jury case before the U.S. Court of Appeals for the D.C. Circuit and, according to Politico, one sealed case as well. He’s negotiating with at least one possible defendant and apparently gearing up to bring some additional charges. And the recent Michael Cohen plea deal suggests that the loose ends being tied up may be numerous. The Flynn memo, too, suggests that there’s a lot left to unravel.

Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
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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