How the Flynn Charges Box In Trump
(Bloomberg View) -- The news that Michael Flynn pleaded guilty Friday to Russia-related offenses is striking, for several reasons. The lies he told the FBI were about asking the Russian ambassador to the U.S., Sergey Kislyak, for political favors during the presidential transition, some of which the ambassador granted. The lies happened when Flynn was already national security adviser and Donald Trump was president. The fact that Flynn lied about contacts with Russia seems particularly suspicious. And if Flynn testifies, as ABC News has reported, that Trump directed the contacts, the lying looks more suspicious still.
The content of the Flynn-Kislyak conversations deepens the narrative that special counsel Robert Mueller has been building: Earlier guilty pleas revealed Russian efforts to connect with the Trump campaign; this one reveals official contacts between the Trump team and Russia after the election -- contact significant enough for Flynn to lie to the FBI about.
The fact that the lies concern Russia makes it politically harder for Trump to fire Mueller or to pardon Flynn than if the charge had involved Flynn's other legal woes over his unreported lobbying for Turkey.
Prosecutors could’ve chosen any criminal act on Flynn’s part for his initial plea. In negotiations with someone who has been caught committing felonies, federal prosecutors have most of the power. The point of the guilty plea is to put Flynn on the hook and require him to continue to cooperate going forward. Now that he’s admitting to a crime, they can seek a harsher penalty if he doesn’t cooperate and a lesser one if he does. What’s more, if the prosecutors want to add more charges later, they can.
All this means that the Mueller team chose the specific charge. And that it fits into the narrative his team is creating. And because Trump has let it be known that he is considering firing the special counsel, Mueller must do more than simply prosecute if he doesn’t want to be fired. He must shape public perception of his investigation to reduce the probability -- by suggesting that his firing would itself be an act of obstruction of justice by the president.
Flynn’s two lies to the Federal Bureau of Investigation that are listed in the single criminal count are revelatory. They both involve lies told on Jan. 24, 2017, four days after Trump was inaugurated and Flynn took office as national security adviser. And they both involve conversations with the Russian ambassador that took place in late December, during the transition.
The charges are framed in the negative, which is to say in terms of the lies Flynn told. To infer what actually happened at the meetings, you have to flip the statements to the positive.
On Dec. 29, 2016, we now know, Flynn asked Kislyak to “refrain from escalating the situation in response to sanctions” that the U.S. had imposed on Russia that day.
What’s more, Kislyak agreed, telling Flynn that “Russia had chosen to moderate its response to those sanctions at his request.”
Flynn lied to the FBI about both aspects of this conversation: his request and Kislyak’s response.
It is striking that Flynn was directly carrying out foreign policy before the Trump team took office. It’s even more striking that he was at least implicitly working against the policy of President Barack Obama’s administration. The same day sanctions were being imposed, Flynn was asking Russia not to respond too aggressively. The clear implication is that Flynn either told Kislyak or hinted that the Trump administration would try to reverse those sanctions.
The other lie occurred a few days earlier, on Dec. 22. Flynn asked Kislyak to delay or block a pending United Nations Security Council resolution condemning Israel's building of settlements in Palestinian territory. Notably, the Obama administration had decided not to veto the resolution. Kislyak responded that Russia would not vote against the resolution. Again, Flynn lied about both his request and Kislyak’s answer.
The really interesting issue here is that Flynn bothered to lie at all about these contacts with Kislyak. And the $64,000 question is, why did he lie? It seems unlikely that he was worried about the Logan Act, which bars private citizens from engaging in international diplomacy.
One possibility is that Flynn lied because he was trying to hide a longer course of contacts between the Trump campaign and Russia. An earlier guilty plea elicited by the Mueller team showed that Russia was trying to make contact with the campaign. The more contacts Mueller can show, the closer he is to a narrative that shows conspiratorial cooperation between Russia and Trump.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
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