The dust has begun to settle over how to view the Michael Flynn guilty plea and plea agreement.
The partisans have all weighed in on whether the plea is a “big nothing” or a critical crack in the president’s armor. The talking heads have now moved on to the issues du jour: did the president’s personal attorney, John Dowd, actually author Trump’s seemingly confessional tweet over why he fired Flynn (“he lied to the VP and the FBI”)? Is Trump, as president, “above the law” so that he simply cannot be charged with obstruction — or, maybe, any other crime — no matter how compelling the evidence against him?
{mosads}Still, shouldn’t we look more closely at a plea deal that many seem to think gave the courthouse away? After all, as the public currently perceives it, Flynn is realistically only facing a possible six months in jail under the sentencing guidelines. Pretty lenient, if true. But is that really so?
Typically, a plea agreement — particularly when a defendant is cooperating with the authorities — “covers” all of the defendant’s potential criminal exposure. It identifies all of the crimes he may have committed, and describes the potential jail sentence for all of it. And it likewise describes all of the promises that the prosecutor may have made to cajole the defendant to plead guilty.
Not so, however, here. Flynn’s plea agreement is very limited to the facts he described when he pleaded guilty, i.e., Flynn lied to the FBI about his pre-inauguration contacts with the Russian ambassador over sanctions, and a U.N. resolution attacking Israel. Unmentioned whatsoever in the plea agreement, however, are references to Flynn’s alleged involvement in a reported plot to deliver a Turkish dissident cleric to the Turkish government in exchange for $15 million, or Flynn’s failure to list, in disclosure statements, his receipt of income for a speech given in Russia and lobbying efforts for Turkey.
And equally important, there is no mention of any promise from special counsel Robert Mueller to forego prosecution of Flynn’s son — presumably a primary reason why Flynn decided to plead guilty and cooperate with Mueller.
So why would Mueller have used this unusual procedure with a limited plea agreement? Simple, if I’m right — and I suspect I am. The serious crimes that Mueller omitted from the plea agreement — and which presumably still hang over Flynn (and his son) — are about Flynn and his son, and not President Trump, his campaign or his administration.
If Flynn had to publicly plead guilty to them as well or had to publicly acknowledge in an executed plea agreement that those crimes were also “covered,” Trump could easily have argued on his Twitter feed for world consumption that Flynn was a crook, rather than, as it more likely appears, also a devotee of the president who willingly did the latter’s bidding, or did what he believed the president wanted.
If Trump were able to publicly show that Flynn was on the hunt to line his own pockets, the president might have argued that Flynn was simply in it for himself and for his son, and his conduct had nothing really to do with any so-called Russian collusion. That is, Trump would argue, there was no Russian collusion. As I see it, avoiding precisely that is what Mueller may have successfully accomplished here.
So the plea deal seems not so lenient at all — in fact it may even be extremely harsh. To the extent that Mueller obviously wants maximum cooperation from Flynn — against higher ups in the Trump campaign, and maybe even the president himself — Mueller may have in fact gained maximum leverage over Flynn, the person most likely so far to point his finger directly at the president.
If Flynn blows the cooperation — meaning, Mueller concludes that he is holding back or dissembling — Mueller simply drops the other shoe. That is, the shoe that kicks Flynn and his son where it does the most damage. Specifically, he indicts them for the offenses that might put them in jail for an extended number of years.
Now, in truth, there is a lot to these plea negotiations that we know nothing about, at least yet. Maybe Flynn has actually “handed up” the president on a silver platter, and he is “locked in,” as law enforcement authorities would typically say. Meaning, perhaps he has already given Mueller a sworn affidavit laying out in great detail his contacts over so-called Russian collusion with high-ranking staffers of the president and maybe even the president himself. Maybe he has even testified before the grand jury, in which case there would be no turning back. We certainly won’t know for a while.
What we do know for sure, though, is that special counsel Mueller is a true professional with uncommon experience in big deal situations. He simply isn’t going to give away too much leniency in the biggest case of the century and in his life, and the president knows that. Otherwise, we wouldn’t be hearing, from time to time, the president ruminating over firing Mueller once and for all. And if Flynn is already “locked in” — as I suspects he is — it is conceivably too late for Trump to pull that firing trigger anyway.
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”