A couple of solid explainers on just how much trouble Donald Trump is in should former Trump national security adviser Michael Flynn truly be cooperating with special counsel Robert Mueller, and there's yet more evidence that Flynn has been in Mueller's sights for some time now.
Special counsel Robert Mueller is investigating Michael Flynn’s work on an unfinished Turkish propaganda film that attacked an exiled Muslim cleric who’s been accused of planning a coup attempt in Turkey, the Wall Street Journalreports.
As part of the ongoing investigation into Russian interference in the 2016 election and collusion with the Trump campaign, Mueller’s team is reportedly probing a film targeting Fethullah Gulen, who Turkish officials say tried to orchestrate a takeover of the Turkish government.
Flynn worked on the film as part of his $530,000 contract through the now-defunct Flynn Intel Group. That consulting firm—and more broadly, Flynn’s failure to disclose his work on behalf of the Turkish government—is an integral part of Mueller’s investigation. The Wall Street Journal reported this week that Mueller is also zeroing in on Flynn’s former business associate Bijan Kian.
So what makes people think Flynn is cooperating? The Daily Beast's Margaret McQuade offers one theory as Flynn's lawyers withdrew from the joint defense agreement with the Trump regime earlier this week.
First, what is a joint defense agreement? A joint defense agreement is a pact among attorneys for multiple targets or subjects in a criminal case in which they agree to share information. The agreement may be written or unwritten. Any joint defense agreement will be defined by its explicit terms, but generally, under such an agreement, attorneys have a duty to keep the confidences of all of the clients covered by the agreement. The attorneys also have a duty to avoid conflicts of interest as to any of the clients. The attorneys can compare notes, allocate work efficiently by dividing tasks and avoiding duplication, and develop a unified strategy.
The main advantage of joint defense agreements is that the information that they share is protected by a form of the attorney-client privilege, known by some courts as a joint interest privilege. These agreements can help targets or subjects sidestep the so-called prisoner’s dilemma, in which they must decide in a vacuum whether to help each other by remaining silent or betray each other by cooperating with authorities. When subjects or targets form a unified defense strategy, it is more difficult for prosecutors to “flip” targets, and use them as cooperators against their co-conspirators.
In the special counsel’s investigation, it has been reported that members of the administration have entered into a joint defense agreement. This makes sense because as they field requests from Mueller and his team for documents and interviews, they can work together to share the work and develop a unified defense strategy.
But what does it mean if Flynn has decided to withdraw from the defense agreement? It could mean that he and his attorney have decided that his interests have diverged from the other members of the agreement. Perhaps Flynn and his attorney have decided to pursue a different strategy. For example, they may decide against voluntarily turning over documents and instead to litigate disclosure issues in court. But such details can usually be worked out within the defense team. For that reason, it seems more likely that Flynn has withdrawn from the agreement because he has decided to cooperate with Mueller to provide truthful information and possibly testimony in exchange for leniency for any crimes of which he is convicted.
Recent reports suggest that Flynn has significant exposure to criminal prosecution. Mueller effectively fired a shot against Flynn’s bow when he charged Paul Manafort with violating the Foreign Agent Registration Act, among other offenses. Similarly, reports say that Flynn belatedly filed notice with the Department of Justice regarding his own lobbying work for the government of Turkey. Even more concerning, other reports indicate that Flynn participated in meetings to discuss the kidnapping and rendition to Turkey of cleric Fethullah Gulen from his refuge in Pennsylvania. Gulen is a rival of Turkish President Recep Tayyip Erdoğan.
Martin "BooMan" Longman backs this up and takes a look a few moves ahead, but again, it depends solely on what Flynn can offer Mueller. When you're in as much trouble as Flynn and his son Mike Jr. are right now, the only way out is to offer up the biggest fish possible.
Michael Flynn has so much criminal exposure it’s almost ridiculous, including things as potentially serious as conspiracy to kidnap, perjury, and obstruction of justice. He has to worry about those charges, plus a long list of problems with disclosure forms involving his lobbying work, background checks, and compliance with military rules and regulations. And he’s reportedly worried that his son will wind up with a lengthy jail term, as well. To significantly reduce all that exposure, he’s going to have to tell a pretty compelling story to Robert Mueller’s prosecutors.
It’s true that plea negotiations could still break down, but they’ve almost certainly begun. The chances are now very high that Flynn will be testifying against the president of the United States and that his testimony will be the basis for a criminal referral of some sort to Congress from the office of the special counsel.
This also has to be of concern to Paul Manafort and Rick Gates, because they’re missing the chance to be the first cooperating witnesses, and are therefore losing the opportunity to reduce the amount of time they’ll be spending in prison.
The floodgates could now open, but even if they don’t it’s beginning to look like a worst-case scenario for Trump. It would be hard enough to try to explain why he fired an FBI director for refusing to drop an investigation of a man now facing a dozen or more indictments. But if that man becomes the star witness against Trump, it will be impossible to defend against the central obstruction of justice charge.
Impeachment is by design a political process with a political definition of what constitutes a removable offense. For that reason, Trump can survive some pretty serious charges, just as Bill Clinton did in the late 1990s. But there are still limits, and a guilty Flynn presents a serious problem. A guilty testifying Flynn could be fatal.
Trump knows this. Flynn could be the one that buries him. We'll see what happens, but I'm guessing we'll know Flynn's fate before the end of the year...and possibly Trump's fate as well.
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