The Good, The Bad, and The Ugly Of The Flynn Plea

images-2Below is my column on the Flynn plea agreement and its potential significance to the Russian investigation.  One development is that President Donald Trump is now denying that he ever told Director James Comey to let Flynn go.  This follows a highly damaging tweet that a Trump lawyer now says was his sloppy mistake. It is another tweet gone awry for the Trump White House.

 

Here is the column:

440px-Michael_T_FlynnThe plea agreement of Michael Flynn, the former White House national security adviser, is a case of the the good, the bad and the ugly for the Trump administration. It is an undeniably significant, though not unexpected, development in the Russia investigation. Flynn was always the most exposed of the high-ranking Trump officials and he lacked a clear defense on some of the allegations regarding his work as a foreign agent. In the famous Western “The Good, The Bad, and The Ugly,” Clint Eastwood’s character Blondie explained the difference between a man with a defense and no defense: “You see, in this world there’s two kinds of people, my friend, those with loaded guns and those who dig. You dig.” Flynn had to dig for a plea but the question is whether he presents a clear and present danger to the Trump inner circle. That is far less clear.

The good

440px-Director_Robert_S._Mueller-_III-1The coverage of the plea was immediately breathless and a bit jubilant. New York defense attorney Gerald Lefcourt announced, “It’s the beginning of the end.” CNN’s legal analyst Susan Hennessey called the charges the “slam dunk” that everyone is looking for. If so, the Russian investigation has experienced a serious downgrading. This investigation began with an allegation of criminal acts of collusion with the Russians to influence the 2016 presidential election. This is a single count of making a false statement not a count of conspiracy or computer hacking or bribery connected to the Russians.

 

For Flynn, the one count of perjury was a good deal given his failure to register as a foreign agent in working for Turkey and assorted allegations of false or misleading statements. Moreover, Mueller’s people had Flynn’s son, Michael Jr., who served as his chief of staff, as leverage against him. However, for the White House, this may also have a good aspect. This is a relatively confined allegation that (like former Trump campaign manager Paul Manafort’s alleged crimes) is centered on the actions of Flynn, not the president or his family. Washington insiders are often nailed not for the underlying scandal but their response to it.

Flynn could well offer damaging information against higher figures, from Trump son-in-law Jared Kushner to the president himself. However, there is nothing in this indictment that offers serious support for the allegation of collusion with the Russians. Flynn lied on four occasions about conversations related to national security issues related to both Russia and Israel, including a conversation with then Russian Ambassador Sergey Kislyak in a conversation with the FBI. The indictment indicates that Flynn discussed sanctions with Kislyak, a fact that not only contradicts his statement to the FBI but to Vice President Mike Pence. However, the White House can note that Flynn also misrepresented the meeting to the vice president and the Trump administration.

Moreover, the interest of Kislyak in determining the position of the new administration on sanctions is not unheard of in Washington, or necessarily untoward to raise with one of the incoming national security advisers. Ambassadors are supposed to seek changes in policies and often seek to influence officials in the early stages of administrations before policies are established. Flynn’s suggestion that the Russians wait as the Trump administration unfolded its new policies is a fairly standard response of an incoming official.

Additionally, the false statements concern the discussion of an upcoming United Nations Security Council vote on whether to condemn Israel’s building of settlements, a matter entirely unrelated to the Russian investigation and a meeting reportedly prompted by requests from Israeli Prime Minister Benjamin Netanyahu. Finally, the White House will point out that Flynn resigned Feb. 13 after being confronted over his misleading statements. He lasted only 24 days before being shown the door by the Trump administration.

The bad

The bad in this plea is equally obvious. While the indictment of former Trump campaign chairman Manafort was comfortably removed from either the campaign or the White House, this indictment involves a high-ranking Trump aide and concerns the Russian investigation. Flynn puts the special counsel’s investigation right next to the president in terms of a secured criminal plea. The ugliest element is the timing. The lie told by Flynn occurred on Jan. 24, four days after the start of the Trump administration. This was not some casual conversation. Flynn clearly knew the risks of lying in an unfolding scandal over Russian contacts.

It is also bad news to have a high-ranking former aide effectively under the control of the special counsel. Plea deals usually involve the waiver of other possible charges in exchange for cooperation. Flynn is a “matinee” defendant. There is little reason for prosecutors to cut a deal unless they believe that the case would be hard to prove or, more likely, the defendant has deliverables to offer the prosecution.

The ugly

440px-Comey-FBI-PortraitThe ugly context of the Flynn plea is also the direct work of President Trump himself. It is doubtful that there would have been any special counsel investigation had Trump not fired former FBI Director James Comey when he did. Moreover, the investigation has been fueled by Trump’s ill-considered and inappropriate statement to Comey that “I hope you can see your way clear to letting this go, to letting Flynn go.” The pressure on Comey resulted in his creating the now famous memos sitting in Robert Mueller’s office. To make matters worse, Trump pressured cabinet members and, as reported this week, ranking members of Congress to force an end to the Russian investigation.

Trump made the situation far worse for Flynn and himself with these overtures. He created the very narrative to be used against him in the event of a plea of this kind. It is now fair game for people to ask if Flynn lied to cover up more than an awkward meeting and whether Trump’s unprecedented efforts on Flynn’s behalf reflect deeper concerns over information in Flynn’s possession.

images-3In the end, these are always sad moments. While many enjoy watching public figures fall from great heights, it is an ignoble and painful moment for a man who achieved much in the public interest. To paraphrase what Clint Eastwood’s Blondie said in the film, that is the nature of scandals and war alike, in which “so many men [are] wasted so badly.”

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

169 thoughts on “The Good, The Bad, and The Ugly Of The Flynn Plea

  1. “Michael Byron Nifong, former district attorney for Durham County, North Carolina, was removed, disbarred and jailed following court findings concerning his conduct in the Duke lacrosse case.”

    – Wiki
    _____

    The conduct and motivations of Mueller and his staff must be investigated by Congress, the Senate and a special prosecutor for the sake of the American republic and its Constitution.

    This is not an attack on President Trump. This is an attack on the Constitution.

    Mueller is a political hack developing false political charges against President Trump where no crime exists. Mueller’s best friend, Comey, was a political hack for Hillary and the democrats, being demonstrably a zealous democrat himself.

    This is a silent coup d’etat in America; Civil War II. The FBI has been politically weaponized. Mueller and democrats are just as nullifying and treasonous of the Constitution as was “Crazy Abe” Lincoln, tyrant, despot and dictator. If Mueller is allowed to brazenly violate the Constitution, overturn a certified election and unseat a duly elected President on trumped-up and false charges, the collectivist, anti-American, anti-Constitutionalists will have won.

      • Please remind me again of the “crime” which formed the basis for the appointment of a special prosecutor regarding ethereal “Russian Collusion.” There could never have been a “crime” constituting a basis for an appointment of a special prosecutor against Hillary, right? It was just coincidental that Hillary was Sec. of State under the “unmasker,” Obongo, while the Clinton Foundation simultaneously amassed assets of $2+ billion. It was a normal, legal purge of 30,000 evidential e-mails and an FBI “interview” that was not recorded and the allowance of a co-conspirator to act as Hillary’s attorney…etc., etc., etc.

  2. Ah come on people, some of you out there are losing whats left of your minds. Trump said he will be the “Law and Order” President, also he only hires the best, the best people. Just look at the best like his cabinet and his team of lawyers. So don’t get your panties in a bunch, Ryan and McConnell have just got “The Donor Class Relief Act” passed so whats to worry about? Just sit back and talk to your tax lawyer about where you are going to stash the loot from your middle class tax cut. Or maybe you can just start a new super-pac for Mike Pence and Roy Moore for 2020……..See, No Worries.

  3. Clearly, JT is wayyyy out of his league in his abysmal and misinformed article. To remedy that, here’s a summary of the REAL situation from a REAL legal scholar and whose experience in criminal law dwarfs JT’s:

  4. Thou shalt not lie to federal investigators…unless you are Hillary Clinton.

    Firing Comey may have trigged the investigation when yet another politically active FBI head replaced him. However, Comey was clearly compromised ethically. For example, he wrote his announcement exonerating Hilary Clinton long before the investigation concluded. He carefully laid out ways in which HRC broke the law, but then claimed it made no sense to prosecute.

    The real Achilles Heel is Trump’s extemporaneous Tweets. As someone who also suffers from Foot in Mouthitis, I can say it would behoove him to take a few hours to run his Tweets through counsel and PR. He can still be authentic without being unwise. Having that staff could help him get out of his own way.

    His Administration has had plenty of warnings about the dangers of posting comments without forethought or caution. They should use this opportunity to create an SOP for communications, or else one day his Tweets could get him in serious hot water. He should be open to learning.

      • No, she just said “I don’t really recall” about 40 times and the FBI did NOT ask her questions that would have trapped her or tripped her up like they did to Flynn. And then, poof! not too long after Hillary’s FBI interview, she was flying on Air Force One with President Obama to a campaign event where they let Hillary-the-candidate stand and speak in front of a podium with the Presidential Seal on it – something that is only reserved for POTUS, but an exception was made for Hillary – who had just finished her long-awaited FBI interview. No, not rigged at all.

      • Ken – Hillary was not put under oath so it made no difference what she did. Comey had already written her get out of jail almost free letter.

    • Karen’s first and second paragraphs- what about…ism- an oft-used Kremlin technique targeting its opponents (described by John Oliver)

      Up until the current Russian-linked President, the American way was to move forward not harp incessantly about a distant experience e.g. Obama didn’t drone on about Romney, McCain and Bush.

  5. The Obama administration stated flatly that conversations with foreign leaders by transition team were “not a problem.” https://youtu.be/2vO3GNexHYI?t=27m37s Comey only thought Trump was trying to end the Flynn investigation. Some interpret the conversation as a plea for leniency, or benefit of doubt… nothing more.

  6. In the meantime, the Democrats offer nothing but maniacal howling about an off-the-cuff strategy born on election night to disqualify the new President. How much is all of this costing? And the taxpayers are supposed to be happy with this investigation? I would say they are assuring they will lose again next election, but now that isn’t enough. Seems to me paring down this egregious excuse for representative government by 90% would help to spare all of us, and the rest of the world, this ongoing foolishness. Obviously not enough real work for the people who work there.

      • Sounds like something made up by Trumpers. Bernie is probably the favorite followed by some younger women. Think it will be important to nominate someone free of sex scandals.

        • SWM – Jamarl is most definitely not a Trumper. If Bernie is the fav –which I highly doubt – how come the MSM keeps trashing him? Latest is Joy-less Reid. I think the DNC will go with Establishment – like Harris.

          • I don’t know about that. Ellison was a Bernie supporter.There will be no DWS operation. Right now I think Bern would be the choice but 2020 is a long time away.

                  • While I’m fairly certain that large, wealthy corporations don’t need a tax cut as much as the middle class does, I’m less sanguine about the ability of many in the middle class in red states to understand that the proposed tax legislation is not in their long term economic interests. Just as many in the middle class in blue states failed to understand that Hillary’s agenda was not in their long term economic interests. She would have played the (Goldman) Sachsophone almost as much as Trump has.

                    The one thing I’m absolutely sure of is that the proposed tax legislation is not “tax reform.” It’s an invitation to hasten the economic train wreck that the US will inevitably face eventually. The engine that runs the US economy is the middle class, and over time this proposed legislation takes lots of money out of the pockets of many in the middle class and gives it to those who don’t need the money.

                    • The title of this blog article is called ‘The Good, the Bad, and the Ugly of the Flynn Plea’ and maybe JT will do another blog article about The Good, the Bad, and the Ugly about the tax bill. This is a big first step and there’s still time to make it better and maybe some Democrats will sign on to the final version. We will see.

            • And sorry, an 80-year-old socialist who honeymooned in the USSR is not going to be our next president. Not gonna happen. Bernie is quite happy with his life just as it is. And Kamala Harris? Nope.

  7. In a future post, I want to hear a legal scholar expound hypothetically on a defense lawyer claiming authorship of a damaging tweet that the public assumed came from his client.

    Can a special prosecutor investigate the source of tweets?

    In law school, do they teach “it’s always the cover up that gets you”?

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