This essay has been updated to reflect news developments.
Michael Flynn’s plea on Friday to a single count of lying to the F.B.I. is a seismic event in the special counsel investigation.
For
starters, it portends the likelihood of impeachable charges being
brought against the president of the United States. Mr. Flynn, a former
national security adviser, acknowledged that he was cooperating with the
investigation. His testimony could bring into the light a scandal of
historic proportions in which the not-yet-installed Trump
administration, including Donald Trump personally, sought to subvert
American foreign policy before taking office.
The
repercussions of the plea will be months in the making, but it’s not an
exaggeration to say that the events to which Mr. Flynn has agreed to
testify will take their place in the history books alongside the
Watergate and Iran-contra scandals.
We’re in new — and highly inflammatory — territory. Here are 10 immediate takeaways from today’s news.
This is not a meet-in-the-middle deal.
Both
sides did not assess their risks and decide to hedge them with a
compromise. Rather, as we’ve known for weeks, the special counsel,
Robert Mueller, believed he had sufficient evidence to indict Mr. Flynn
on a long list of criminal charges, including money laundering, tax
offense and false statements. Mr. Mueller’s team, as is standard
prosecutorial practice, presented Mr. Flynn with that list and helped
him understand that his life as he knew it had ended.
Continue reading the main story
This is much bigger than Paul Manafort.
Mr.
Manafort, the former Trump campaign chairman, has been indicted, but
this is a plea, and Mr. Flynn’s cooperation — the real goal of bringing
criminal charges — has been secured. This puts Mr. Flynn in the same
camp as George Papadopoulos, the campaign adviser who pleaded guilty to
making false statements to the F.B.I. on Oct. 5 and is also cooperating
with the investigation. Unlike Mr. Papadopoulos, though, Mr. Flynn was a
top adviser who was at the center of communication with Russia as well
as the potential obstruction of justice by President Trump in seeking to
shut down the Flynn investigation itself. Mr. Flynn was considered as a
running mate and reportedly stayed quite close to the president even
after being forced out of the administration in February.
Mr. Flynn has just become the prosecution’s star witness.
Mr.
Flynn’s plea on Friday concerned just one crime. The other charges that
prosecutors threatened him with continue to hang over him. Mr. Flynn
will not receive credit for his cooperation until after it has ended, at
which point Mr. Mueller may — if Mr. Flynn has held up his end of the
bargain — move to dismiss the other charges. In the interim, Mr. Flynn
has to do anything Mr. Mueller’s team requests.
The charge Mr. Flynn is pleading guilty to is a stunning one.
He
is admitting that last December, before Mr. Trump’s inauguration, he
asked the Russian ambassador at the time, Sergey Kislyak, to refrain
from reacting aggressively to sanctions that the Obama administration
had imposed on Russia. Russia reportedly agreed and Mr. Kislyak told Mr.
Flynn later that it had chosen to moderate its response to the
sanctions to make nice with the Trump team.
It seems Mr. Trump himself directed Mr. Flynn to make contact with the Russians.
If Mr. Flynn testifies to this — ABC’s Brian Ross
is reporting that he will — it presents another impeachable offense
along with the possible obstruction of justice. Even more, it brings the
whole matter well outside the purview of the criminal courts into the
province of a political scandal, indicating abuses of power arguably
well beyond those in the Watergate and Iran-contra affairs.
Mr. Flynn asked Russia to intervene at the United Nations on behalf of Israel.
He
is admitting that last Dec. 22, he asked Mr. Kislyak to delay or defeat
a United Nations Security Council resolution condemning Israel for its
settlement policy, which the Obama administration had decided to let
pass. The possible involvement or knowledge of Israel in the case will
be one of many questions that congressional investigators will pursue.
The lying is bad. Conducting rogue American foreign policy is worse.
In
the end, Mr. Flynn’s lies are secondary to the demonstration that the
Trump administration was actively undermining American foreign policy
before it took office. This will most likely prove the most abiding
scandalous fact of the Mueller investigation. And it’s one that nobody
on either side of the aisle could possibly defend.
Mr. Flynn’s cooperation portends extreme peril for a variety of people in the president’s orbit.
Most
immediately vulnerable? Jared Kushner. Mr. Flynn was present at a Dec.
1, 2016, Trump Tower meeting where Mr. Kushner is said to have proposed
to Mr. Kislyak setting up a back channel for the transition team to
communicate with Moscow.
Those
and related details are now front and center in the investigation.
Criminal liability aside, Friday’s news — including a report that Mr.
Kushner was the one who directed Mr. Flynn to contact Russia
— helps cement Mr. Kushner’s reputation as a callow and arrogant
freelancer, authorized by the president to act way over his head, and
possibly impairing some of the most delicate and important issues of
foreign policy. (A possible winner, on the other hand, is the younger
Mike Flynn, about whose criminal liability his father was extremely
concerned. Look to see how Mr. Mueller now chooses to treat the younger
Mr. Flynn, who is being investigated over his work for his father’s
lobbying business.)
Mr. Flynn’s plea raises the likelihood that he will give testimony in support of a potential obstruction of justice charge against Mr. Trump.
The
basis for the possible obstruction charge against the president has
been his efforts to get the F.B.I. director, James Comey, to shut down
the Flynn investigation during a Feb. 14 meeting in the Oval Office,
coupled with his multiple lies on the subject. Obstruction is plainly an
impeachable offense: It’s the offense for which Richard Nixon was
threatened with impeachment.
For
months, it has seemed the possible culminating charge of the Mueller
investigation, a straightforward and readily understandable high crime
or misdemeanor. Such a charge, per Department of Justice policy, would
not be brought in the criminal courts but would rather form the basis of
a report to Congress potentially recommending impeachment. If Mr.
Mueller brings that charge, it will be on the strength of Mr. Flynn’s
testimony.
Mr. Trump’s defenders have fewer and fewer cards to play.
There
had been a prospect that the obstruction of justice charge, if it did
come, would be dismissed by die-hard Trump supporters as subject to
conflicting interpretations of Mr. Trump’s state of mind, and therefore
not deserving of impeachment or removal. No longer. Now Mr. Trump and
his circle will stand accused by a former member of the administration
with plainly unconstitutional meddling in the most sensitive of foreign
policy issues. If the Congress and country believe Michael Flynn’s
account, it is hard to see what even the staunchest Trump defenders can
say in defense. That means that as Mr. Trump and the administration look
out at the new landscape featuring a guilty Michael Flynn, it’s kill or
be killed.
Harry Litman (@harrlitman),
a former United States attorney and deputy assistant attorney general,
teaches at the University of California, Los Angeles, Law School and
practices law at Constantine Cannon.
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