By now, other potential Trump administration officials who might’ve interacted with Michael Flynn following his Jan. 24 interview with FBI agents – where the former general lied about the details of his conversation with then-ambassador Kislyak – are probably tearing their hair out trying to discern whether the former National Security Adviser – who served in that post for less than a month before being fired for allegedly misrepresenting these same conversations to Vice President Pence – might’ve worn a wire during their interactions.
Of course, there’s nothing in Flynn’s Nov. 30 plea agreement that definitively answers the question of whether Flynn wore a wire.
So, in the interest of reading the tea leaves, the Guardian spoke to a handful of experts about whether there was any language in the plea agreement to suggest that Flynn – who tried to cover up the fact that he intimated to then-ambassador Kislyak that Trump would roll back some of the sanctions against the Putin government while also soliciting a Russian veto of a UN resolution condemning Israeli settlements – might’ve been wired for sound.
Their conclusion? That certain language in the Flynn plea about ‘covert actions’ suggests that, yes, he did wear a wire.
Section eight of the deal reached by Donald Trump’s former national security adviser in the inquiry into Russian meddling in the US election is entitled “cooperation”. It specifies that as well as answering questions and submitting to government-administered polygraph tests, Flynn’s cooperation “may include … participating in covert law enforcement activities”.
Long-time students of federal law enforcement practices agreed, speaking anonymously, that “covert law enforcement activities” likely refers to the possibility of wearing a concealed wire or recording telephone conversations with other potential suspects. It is not known whether Flynn has worn a wire at any time.
“If the other subjects of investigation have had any conversations with Flynn during the last few months, that phrase must have all of them shaking in their boots,” said John Flannery, a former federal prosecutor in the southern district of New York.
And if there’s one member of the Trump inner circle who might have something to worry about thanks to Flynn, it’s senior Trump adviser and son-in-law Jared Kushner.
“The one who must be particularly terrified is [Trump son-in-law and adviser] Jared Kushner, if he spoke to the special counsel’s office without immunity about the very matter that is the subject of Flynn’s plea. I think he must be paralyzed if he talked to Flynn before or after the investigators debriefed him.”
But aside from the language about covert action, few other details about what actions might’ve taken can be gleaned from the plea. Even the date when Flynn began cooperating with Mueller’s investigation remains a mystery – though at least one prominent Republican donor was telling friends in July this year that Flynn was already helping the Mueller probe, the Guardian reported.
The exact nature of the information that Flynn provided to Mueller also is not yet known (though we imagine, given the sieve-like nature of the Mueller camp when it comes to media leaks, some of these details will likely begin appearing in the pages of the New York Times and Washington Post). However, if there’s one clue as to the magnitude of the assistance that Flynn provided to Mueller, it’s the updated sentencing guidelines for the single charge of obstruction that Flynn has chosen to eat instead of trying his luck with a trial.
Considering the severity of Flynn’s crimes in the eyes of the FBI (which doesn’t look kindly on people who knowingly hinder investigations), the dramatic reduction in the former general’s sentencing suggests that he is going to help Mueller take down at least one other senior member of the Trump inner circle.
The main clue in the plea agreement about the importance of the information Flynn has already provided lies in the discrepancy between the maximum penalty for the crime he has admitted and the maximum sentence the special counsel has promised to recommend.
According to the document made public on Friday, Flynn could have been sentenced to as much as five years in prison and a $250,000 fine. As long as he cooperates in full with all of the special counsel’s requests, the document says the “estimated sentencing guidelines” range from zero to six months, with a possible fine of between $500 and $9,500. The proposed sentencing reduction also partly takes into account the fact Flynn has no criminal record.
“No prosecutor I know would agree to reducing a sentence that dramatically unless the witness had provided very significant information about at least one other target of his investigation,” Flannery said. “You wouldn’t get such a low sentence unless you had implicated a big target. The person that you’re lifting up allows you to sit on the ground.”
The exact language in the plea agreement requires Flynn to cooperate “fully, truthfully, completely and with this Office and other Federal, state and local law enforcement authorities identified by this Office in any and all matters as to which this Office deems the cooperation relevant”.
If Flynn refuses to cooperate fully, “the agreement will be considered breached by your client.” The agreement says any breach will have a serious impact on Flynn’s sentence.
Experts told the Guardian it was notable Flynn pleaded guilty before being indicted by a grand jury, though the logic here is easy to spot. By sparing Flynn this very public embarrassment, Flynn has more reason to feel genuinely grateful toward the former FBI director. It also makes sense from a strategic perspective: By preserving Flynn’s cover, the former National Security Adviser was free to begin recording incriminating information that could be useful for Mueller.
Whatever the nature of the agreement, Flynn has every incentive to provide Mueller with as much useful information as he possibly can. According to the agreement Flynn must cooperate “fully, truthfully, completely and with this Office and other Federal, state and local law enforcement authorities identified by this Office in any and all matters as to which this Office deems the cooperation relevant”.
If Flynn refuses or fails, “the agreement will be considered breached by your client.” The agreement says any breach will have a serious impact on Flynn’s sentence.
To be sure, the idea that Flynn – or even Papadopoulos before him – wore a wire is still, at this point, mere speculation. While it sounds like prosecutors wanted both men to do so, in Flynn’s case, Mueller may have included the suspicious passage in his plea for another unrelated purpose: To scare other potential witnesses or targets into being completely truthful with investigators.
Since there was no legal requirement for Mueller to include this information about covert law enforcement activities in the plea agreement, Flannery believes it was put there “to put the fear of God” into anyone who may have given the special counsel answers that conflict with Flynn’s information.
Of course, the nature of Flynn’s cooperation was immediately overblown by ABC in an error that might cost one senior correspondent his career – indeed, it has already greatly damaged what little credibility he had left. ABC suspended Brian Ross – who erroneously reported that Flynn would testify Trump instructed him to contact the Russians during the campaign. Flynn was actually preparing to testify that a senior Trump official 0 revealed to be Kushner – ordered him to do so during the transition. Outreach between the transition and foreign regimes is legal and common.
So, aside from undermining President Obama during the waning days of his administration, Flynn’s conversation with Kislyak was otherwise completely legitimate, which begs the question: Why’d Flynn lie? His actions, of course, were technically violations of a rarely enforced law against soliciting these types of quid-pro-quo arrangements. But the risk of being caught in a lie was far greater than risking possible punishment for his conversations with Kislyak.
So why’d he do it?
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Full Flynn Plea Agreement: