With all the drama surrounding James Comey, it’s easy to forget that the Trump administration’s troubles started with Michael Flynn. It was Flynn who lied to Vice President Mike Pence and to FBI investigators about a meeting with the Russians, and it was the former national security adviser who the president was trying to protect when he—according to Comey’s sworn testimony—asked the ex-FBI director to “see your way clear to letting this go, to letting Flynn go.” (Trump denies saying this.)
There’s every reason to believe Flynn continues to be a key figure—and perhaps the key figure—in Robert Mueller’s investigation of Russia’s election meddling, the Trump campaign’s potential collusion in such, and other crimes that may have stemmed from those affairs. On Monday, two members of the Senate Judiciary Committee posited that Flynn was already cooperating with Mueller, potentially offering testimony that could incriminate Trump.
“If you draw conclusions as a prosecutor about what we can see from the Flynn investigation, all the signals are suggesting that he’s already cooperating with the FBI and may have been for some time,” Democratic Sen. Sheldon Whitehouse told CNN’s Wolf Blitzer. Later in the evening, Sen. Richard Blumenthal agreed with that assessment. “The likelihood of his cooperation is very high,” the Connecticut Democrat told MSNBC’s Lawrence O’Donnell. “Whether he will be truthful in cooperating, whether in fact he knows enough to justify some kind of agreement with the prosecutors, I think will be told by time.”
What exactly are the arguments that Flynn is cooperating, how sound are they, and what would it mean if Flynn did in fact decide to roll over? Whitehouse, a former U.S. attorney and state attorney general, laid out his case in great detail on Monday night. (Blumenthal, who also served as a U.S. attorney and state attorney general, was more succinct in his analysis.) Here is a point-by-point assessment of Whitehouse’s theory, one that criminal justice experts have told me is clearly speculative but also makes a great deal of sense.
Flynn was caught red-handed and faces stiff jail time.
“First of all, they had him dead to rights on a felony false statement,” Whitehouse told Blitzer. He was referring to the reporting that Flynn lied to federal investigators about what he discussed in his December meeting with Russian Ambassador Sergey Kislyak. Indeed, such a crime—as well as additional crimes Flynn may have committed—would carry a very stiff penalty, as Blumenthal noted:
He has pretty clearly lied to the FBI, lied to intelligence agencies on his disclosure form, the defense intelligence agency perhaps, and committed other serious falsehoods that put him in serious legal jeopardy. And as you may know, the penalty for violating the law prohibiting these false statements, which is 18 United States Code, 1001, is five years in prison for each violation.
Robert Weisberg, co-director of the Stanford Criminal Justice Center, told me it’s only logical that these potential penalties would induce Flynn to cooperate. “It makes a lot of sense to me that he’s singing,” Weisberg said. That cooperation, though, could be coming in fits and starts. “He may be singing in short arias as he is sort of dosing out his information,” Weisberg told me. “The dealmaking between him and DOJ could take many stages and is likely to have a lot of contingencies.”
Julie O’Sullivan, a Georgetown Law professor who worked for Comey in the United States Attorney’s Office for the Southern District of New York and then briefly on the special counsel investigation into President Bill Clinton’s Whitewater dealings, agrees Flynn would at this point be in the very early stages of cooperation. “I really doubt that Mueller is in a position at this point to give him immunity,” O’Sullivan told me. “You never make decisions on immunity until you’re fairly far along in an investigation so that you know you’re not giving immunity to someone who really doesn’t deserve it.”
Flynn previously requested immunity in exchange for testifying before Congress. That was denied, most likely because Flynn hadn’t offered up any information. Prosecutors also tend to be cautious in granting immunity, O’Sullivan said, because “juries hate cooperators” who are perceived as willing to “say anything” to clear their names. One exception came in the inquiry that eventually led to Bill Clinton’s impeachment. “The one person who got immunity was Monica Lewinsky because there was only one semen-stained dress and she had it,” O’Sullivan said. “Without that there was no case.”
If and when Mueller believes Flynn has something to offer that would be worth either immunity or a plea deal, the lieutenant general would have to answer a series of questions to reach what lawyers call a “Queen for a Day” proffer agreement. That deal is named after a game show in which housewives would tell sob stories in exchange for prizes. “Criminal lawyers generally have a very dark sense of humor,” O’Sullivan said.
Flynn is behaving like cooperating witnesses behave.
Whitehouse told Blitzer that after Flynn was found to have failed to disclose work he did for Turkey on government documents, he went back and corrected this error. The senator says this is what a cooperating witness would be asked to do.
“Comey reported that one of the things the FBI does with cooperators is to get them to go back and clean up areas of noncompliance,” Whitehouse told Blitzer.
Comey indeed did testify that this was “long-standing practice” during a May hearing of the Senate Judiciary Committee. And as the Daily Caller reported at the time of Flynn’s registration as an agent of Turkey, “It had been unclear exactly why Flynn decided to register, though his unusually detailed filing did suggest that he was compelled by government forces to disclose the work.”
Various subpoenas indicate Flynn might be cooperating.
It’s been reported by CNN, Reuters, and the New York Times that business associates of Flynn received subpoenas demanding “records, research, contracts, bank records, communications” connected to Flynn and his Flynn Intel Group. These subpoenas were sent out by Dana J. Boente, the U.S. attorney for the Eastern District of Virginia, and indicated that this information should be sent to Brandon Van Grack, the investigator reportedly heading the grand jury inquiry into Flynn. Some of these subpoenas were issued in the weeks just before Trump fired Comey.
“All the reporting on the Eastern District of Virginia subpoenas is [that they are] one hop away from Flynn,” Whitehouse said on CNN on Monday. “He’s like the hole in a donut of subpoenas.”
We reached out to Whitehouse’s office to ask what exactly the senator was suggesting here, but no one would speak on the record. Published reports regarding the Eastern District of Virginia subpoenas have not indicated whether Flynn himself has been subpoenaed. “The government’s never going to tell you what the grand jury has subpoenaed, and if [Flynn] doesn’t say what he’s produced or whether he’s gotten a subpoena you wouldn’t know,” O’Sullivan said.
Based on what we know now, it’s impossible to classify this prong of Whitehouse’s theory as anything but speculation.
Michael Flynn hasn’t been running his mouth.
“One of the more talkative people in Trumpland has gone absolutely dead silent, and that’s what prosecutors strongly encourage cooperating witnesses to do,” Whitehouse told Blitzer.
That could just mean, though, that Flynn has been advised by counsel to keep his mouth shut. “Silence by itself is the weakest inference to stand on,” Weisberg told me. “The Occam’s Razor to explain why he’s silent is that he has a lawyer.”
One final argument for why Flynn might be talking, which Whitehouse only hinted at, is that all of Trump’s alleged efforts to block the investigation indicate the former national security adviser might have an incriminating story to tell.
“Who knows what Trump has said to him, both during the campaign and during the early days of the presidency,” Whitehouse told Blitzer. “Apparently Trump has been in touch with him after his firing from the White House to tell him to ‘stay strong,’ which, in some circumstances, could be looked at as manipulation of a witness or obstruction of justice.”
O’Sullivan sees better evidence for this theory in the other obstruction element the special counsel is reportedly investigating: Trump’s treatment of Comey. She says Trump’s request to clear the room before he allegedly asked Comey to drop the Flynn investigation is “really hard to explain away” if the president doesn’t have something to hide.
“When [Trump] asks everybody, including Comey’s boss, to leave the room and then he poses a question—as a prosecutor what I would invite a jury to assume from that is that he knew it was wrong to ask that question,” she said. “In every criminal case that I’ve been involved in, if you have something that indicates a consciousness of guilt or a consciousness that what you’re asking is improper, juries get that.”
The implication for O’Sullivan, then, is that Trump would only do something so “extraordinary” if he had something to gain from it—that is, halting an investigation that might reveal information he doesn’t want revealed. If Flynn has that kind of information, he’d likely have a strong incentive to offer it up as an inducement to decrease his own possible prison term.
Ultimately, this is all speculation: We don’t know if Flynn is cooperating yet, and we likely won’t know for a while. That said, Reuters reported on Monday that Mueller has brought on a veteran federal prosecutor, Andrew Weissmann, who helped bring down both Enron and mob boss Vincent “the Chin” Gigante. Weissmann’s specialty in those investigations? Flipping witnesses.