Flipping Michael Flynn: The real and imagined damage of a Mueller deal

News that former National Security Adviser Michael Flynn is talking to special counsel Robert Mueller has Trump critics virtually hyperventilating with excitement. Indeed, the prospect of flipping Flynn has led some to all but declare the end of the Trump administration as we know it.

Former Obama administration ethics chief Norman Eisen declared on Twitter, “BAD NEWS FOR TRUMP. Flynn may or may not have dirt on the Prez, but he surely will roll over on Kush, who will flip like a pancake on daddy-in-law’s [obstruction]. They are gonna have to start frisking Jared for a wire in the Oval.” He ominously noted about Mueller, “When I was at State & he was at FBI we worked together on an investigation, & he loves surprises. Kushner, Donnie Jr. and the rest of the Trump crime family better keep their overnight bags handy. Pack shoes with no laces guys.”

{mosads}While this case may be endlessly entertaining for some and Mueller may “love surprises,” these people, including Trump himself, are not props in some progressive fantasy production. Before Mueller has some major delicious “surprise,” he will need a crime other than those committed by Flynn himself. The effort to flip Flynn is the most predictable development in this investigation. First, he has clear allegations of criminal conduct in his work as a foreign agent. Second, his crimes are the type that prosecutors would have few qualms in trading away for good testimony. Third, he was in a high position that could allow him to produce “deliverables” on higher ranking individuals.

Finally, and most importantly, he has a kid in the mix: Michael Flynn Jr., who served as chief of staff to the Flynn Intel Group. As I previously discussed with regards to Trump himself, there is a danger in enlisting family in political work, and this is one of them. It makes you profoundly vulnerable when investigators come knocking. Mueller’s people have been circling “junior” and this withdrawal may indicate that he is the one price that Flynn is not willing to pay. Flynn’s son could now be the subject of a “third-party credit” in exchange for his father turning government witness.

It is important not to make any assumptions about the status of Flynn. Withdrawal is necessary even at the start of negotiations due to the conflict presented with other potential defendants. Any such deal could fall apart. Flynn is not some low hanging fruit. He is a major player and would be a trophy defendant for Mueller to add to his current indictment of former Trump campaign chair Paul Manafort. He has to produce something more valuable than himself for any real deal.

Nevertheless, Flynn could have counted on a potential presidential pardon if he remained loyal. Trump’s controversial pardon of former sheriff Joe Arpaio showed everyone that the president is willing to use this power despite overwhelming criticism. Becoming a cooperating witness could close off this avenue, and Flynn would have to believe that what Mueller is threatening is more significant than what Trump might offer.

Flynn could be facing serious claims of false statements to investigators under the U.S. Code and other laws. He is accused of misrepresenting meetings, including one with Russian Ambassador Sergei Kislyak that Flynn is accused of misrepresenting to Vice President Mike Pence and others. He also failed to register as a foreign agent. While only a handful of such cases have ever been prosecuted, Mueller charged Manafort under the Foreign Agents Registration Act, including allegations that he gave false information and sought to hide money derived from his work.

Flynn faces analogous alleged violations, including the cycling of payments through a Dutch firm, Inovo, that is owned by Ekim Alptekin, chairman of the Turkish American Business Council and close ally of President Erdoğan. Some of Flynn’s contacts with the Russians may have been captured by U.S. intelligence agencies, and he reportedly sought to gain access to damaging hacked emails on Hillary Clinton. Flynn could shed light on a June 2016 meeting with Russians to obtain disparaging information about Clinton as well as the influence of people like George Papadopoulos and Carter Page in establishing Russian ties.

Flynn also faces some more sensational claims, including alleged discussion of the effective kidnapping and delivery of Erdoğan critic Fethullah Gülen to Turkey for presumed torture and execution. At a meeting at the 21 Club in New York, Flynn was reportedly offered $15 million to arrange for Gülen to be taken on a private plane to a Turkish prison island. Flynn was also allegedly involved in a virtual propaganda film meant to discredit Gülen. The timing of these meetings is important because some communications occurred in December, when Flynn was assuming the role of acting national security adviser. If Flynn continued to be paid for such work in January, bribery charges could be alleged.

The most serious threat of flipping Flynn might be to Manafort, former CIA director James Woolsey, or Trump son-in-law Jared Kushner. Woolsey reportedly participated in the meeting on the kidnapping or “rendition” of Gulen and has been named as involved in some of these lucrative arrangements with foreign entities. Of course, there is always the possibility of damaging testimony involving President Trump. Such testimony would have heightened value to Mueller given Trump’s own statements. By trying to pressure Comey to “let Flynn go,” the president created his own damning narrative. With James Comey ready to testify that Trump’s overtures made him feel uncomfortable, leading to his famous memos, a witness on the other side could box in the president.

None of this means a perp walk down the White House driveway anytime soon. There is still no evidence of criminal conduct by Trump nor Kushner revealed in public court papers. Flynn is clearly a live torpedo in the water. However, while he has the range, it is not clear if he has the load to do serious damage to anyone in the White House. Rather, the concern should be that he and Mueller may be seeking a target of mutual interest, and if he hits, there will be nothing speculative or subtle about it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.