- It was reported on Sunday that special counsel Robert Mueller has enough evidence to indict former national security adviser Michael Flynn in the Russia investigation.
- A possible Flynn indictment could bear some consequences for President Donald Trump, who is also being scrutinised for obstruction of justice related to the firing of former FBI director James Comey.
- Sunday’s news about possible charges against Flynn indicates that he is likely angling for a presidential pardon before being indicted.
Revelations on Sunday that special counsel Robert Mueller has gathered enough evidence to indict former national security adviser Michael Flynn could bolster the obstruction-of-justice case Mueller is reportedly building against President Donald Trump, and it could be Flynn’s signal for a presidential pardon.
Mueller is investigating Flynn, Trump, and others as part of his inquiry into Russia’s interference in the 2016 election. As part of the probe, he’s also examining whether members of the Trump campaign colluded with Moscow to tilt the race in Trump’s favour.
Flynn was forced to resign in February when it emerged that he had misled Vice President Mike Pence about his contacts with Sergey Kislyak, then Russia’s ambassador to the US, during the transition period.
Flynn’s firing came three weeks after former acting Attorney General Sally Yates warned the White House that he could be vulnerable to Russian blackmail over his conversations with Kislyak.
Trump also ignored advice during the transition period from President Barack Obama — who fired Flynn as head of the Defence Intelligence Agency in 2014 — to steer clear of him.
The FBI was already investigating Flynn at the time of his firing. He informed the Trump transition team in January, before the inauguration, that he was the subject of a separate FBI investigation relating to his lobbying work for Turkey. He joined the administration as national security adviser shortly after.
The evidence Mueller reportedly has against Flynn relates to his lobbying work through the latter half of 2016, while he was a top Trump campaign surrogate. At the time, Flynn was lobbying for Ekim Alptekin, a prominent businessman with ties to the Turkish government. Flynn did not register with the Department of Justice as a foreign agent, as required by federal law, until March 2017.
Flynn’s activities came up as the subject of a February conversation between Trump and former FBI director James Comey. Comey testified to the Senate Intelligence Committee in June that soon after Flynn’s firing, Trump approached him and asked him to “let go” of the bureau’s investigation into the former national security adviser.
After Comey refused to assure Trump that the FBI would drop the Flynn investigation, Trump fired Comey in May, later citing “this Russia thing” as a factor in his decision.
A Flynn indictment could serve to “complete the circle” in an obstruction case against Trump, said Patrick Cotter, a former federal prosecutor who is currently a white-collar defence attorney at Greensfelder, Hemker & Gale, P.C.
“If there was any doubt that the substantive investigation against Flynn — which had to do with the Russia investigation and which did touch the administration — was the reason the president approached Comey, asked him to back off, and then fired him when he didn’t, this would complete the circle,” said Cotter, who has worked with Mueller in the past. “That’s something a prosecutor always wants to do. You want to tie up all the loose ends.”
In addition to investigating the president for obstruction of justice, Mueller is also looking into the role Trump played in crafting a misleading statement his son, Donald Trump Jr., offered in July following reports that he met with a Kremlin-connected lawyer offering dirt on Hillary Clinton at Trump Tower in June 2016. The statement had to be amended several times as details about the meeting emerged, and Trump’s defence lawyers initially said that the president had no knowledge of the meeting, nor any role in drafting his son’s initial statement.
In late July, however, The Washington Post reported that Trump had “dictated” Trump Jr.’s statement against the advice of aides while he was aboard Air Force One. Mueller is now in the process of interviewing those aides, many of whom were also witness to the decision-making process leading up to Comey’s firing.
A presidential pardon would be ‘in everybody’s interest’
News of Flynn’s possible indictment comes amid reports that Trump is probing the boundaries of his pardon power. The president’s power to pardon federal crimes is very broad and has few constitutional limits, and legal experts have suggested that Flynn is hoping for a pardon before charges are brought against him.
NBC News reported on Sunday that Mueller is increasing pressure on Flynn following last week’s indictments of former campaign chairman Paul Manafort, and Manafort’s longtime associate, Rick Gates. It emerged in September that the special counsel is also investigating Flynn’s son, Michael Flynn Jr., in connection to his work for his father’s lobbying firm, Flynn Intel Group.
Former federal prosecutor Renato Mariotti wrote that the news of a possible Flynn indictment suggests Mueller’s team has contacted Flynn about cooperating with the investigation by using his son’s criminal liability as leverage, and that Flynn’s team was likely the source of the story.
Although Mueller has a reasonable chance of gaining Flynn’s cooperation because of the substantial prison sentence he could face — beyond what his son does — one can still expect Trump to pardon Flynn, given his statements of support for the former national security adviser, and his request that Comey “let go” of the Flynn investigation, Mariotti wrote.
Flynn’s son has also aggressively attacked Mueller and retweeted accounts criticising him, while tweeting out reminders of his father’s staunch support for Trump. The tactic indicates that Flynn Jr. knows he will be charged, but still refuses to flip, Mariotti added.
Cotter echoed that view and emphasised Trump’s apparent loyalty to Flynn, who was one of his strongest campaign surrogates before becoming national security adviser.
“The President of the United States, who has virtually unlimited pardon power, has gone on the record, in public, and said he doesn’t think Flynn should be prosecuted,” Cotter said.
“If you’re Flynn’s attorney, the possibility of a pardon is something you’d think about,” he added. “It’s an amazing thing to have the president, before your client is charged, saying publicly that he doesn’t think they should even be investigated, much less charged.”
If charged, Flynn could be subject to what’s known as a “speaking indictment,” or an indictment that is relatively lengthy and includes more facts and allegations than are legally required. The US government’s statements of offence against Manafort and Gates were speaking indictments, and it’s likely Flynn’s indictment, if one is filed, will follow the same pattern.
Given that, it’s possible that Flynn’s defence lawyers were the source of the story, because it “could serve as a nudge to Trump” and indicate that he should pardon Flynn sooner rather than later to prevent the release of a list of allegations that could be damaging not only to Flynn, but to Trump as well, Cotter said.
Neither Flynn’s attorney nor the White House immediately responded to a request for comment.
“It’s in everybody’s interest for Flynn’s team to leak information about possible charges,” Cotter said. “If you’re going to pardon Flynn, it does the most good for him and the White House to do it now, before that indictment is filed.”
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