News media are breathlessly reporting that Gen. Michael Flynn has agreed to plead guilty to lying to the FBI. You can read the Statement of the Offense here. The false statements alleged by the government seem rather pathetic: 1) Flynn falsely told an FBI agent that he didn’t ask the Russian ambassador to “refrain from escalating the situation in response to sanctions” the U.S. had just imposed, and 2) that he didn’t recall the ambassador subsequently telling him that the Russians had moderated their response per his request; 3) Flynn falsely said that he didn’t ask the Russian ambassador to delay or defeat a pending U.N. Security Council resolution, and 4) that the ambassador never subsequently described his country’s response to that request. (Flynn tried, unsuccessfully, to convince several members of the Security Council, including Russia, not to proceed with an anti-Israel resolution. This is to his, and President Trump’s, credit.)
That’s it, after a year of huffing and puffing. Nothing about the election, nothing about the long-awaited “collusion” between the Trump campaign and Russia. I have no idea why Flynn apparently lied to an FBI agent, assuming that he did. But the communications described in the information are exactly the sorts of contacts that a national security advisor to an incoming president should be having with foreign powers.
In short, the allegations against Flynn suggest that Robert Mueller has nothing significant against President Trump or other members of his administration.
The press, of course, is gleeful. ABC‘s headline blares, “Flynn Prepared To Testify Against Trump, Trump Family, White House Staff.” Really? Testify to what?
ABC’s Brian Ross reports: Michael Flynn promised “full cooperation to the Mueller team” and is prepared to testify that as a candidate, Donald Trump “directed him to make contact with the Russians.”
But of course, there is nothing wrong with directing Flynn to make contact with the Russians. ABC says this is contrary to statements that Trump has made, but I don’t know whether that is true or not. It would require considerable research into Trump’s many statements to discern whether he has said that he never directed Flynn to contact any Russian on any subject.
In any event, what is the point? Contacting foreign governments was part of Flynn’s job, and directing Flynn to contact foreign governments was part of Trump’s job.
Andy McCarthy sees the Flynn plea the same way that I do:
Obviously, it was wrong of Flynn to give the FBI false information; he could, after all, have simply refused to speak with the agents in the first place. That said, as I argued early this year, it remains unclear why the Obama Justice Department chose to investigate Flynn. There was nothing wrong with the incoming national-security adviser’s having meetings with foreign counterparts or discussing such matters as the sanctions in those meetings. Plus, if the FBI had FISA recordings of Flynn’s conversations with Kislyak, there was no need to ask Flynn what the conversations entailed. Flynn, an early backer of Donald Trump and a fierce critic of Obama’s national-security policies, was generally despised by Obama administration officials. Hence, there has always been cynical suspicion that the decision to interview him was driven by the expectation that he would provide the FBI with an account inconsistent with the recorded conversation — i.e., that Flynn was being set up for prosecution on a process crime.
In the information filed against Flynn, what is most important is what is not there–the dog that isn’t barking:
[W]hen a prosecutor has a cooperator who was an accomplice in a major criminal scheme, the cooperator is made to plead guilty to the scheme. This is critical because it proves the existence of the scheme. In his guilty-plea allocution (the part of a plea proceeding in which the defendant admits what he did that makes him guilty), the accomplice explains the scheme and the actions taken by himself and his co-conspirators to carry it out. This goes a long way toward proving the case against all of the subjects of the investigation. That is not happening in Flynn’s situation. Instead, like Papadopoulos, he is being permitted to plead guilty to a mere process crime. A breaking report from ABC News indicates that Flynn is prepared to testify that Trump directed him to make contact with the Russians — initially to lay the groundwork for mutual efforts against ISIS in Syria. That, however, is exactly the sort of thing the incoming national-security adviser is supposed to do in a transition phase between administrations. If it were part of the basis for a “collusion” case arising out of Russia’s election meddling, then Flynn would not be pleading guilty to a process crime — he’d be pleading guilty to an espionage conspiracy.
I suppose it is still possible that Mueller could surprise us, but General Flynn was supposed to be the key witness, and he apparently has little or nothing to say that is newsworthy.
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