- An NBC News report on Sunday said the special counsel Robert Mueller had enough evidence to indict the former national security adviser Michael Flynn in the investigation into Russia’s interference in the 2016 US election. An indictment of Flynn could bear some consequences for President Donald Trump, whose firing of the FBI director James Comey in May has reportedly prompted an investigation into whether Trump attempted to obstruct justice. The report indicates Flynn is most likely angling for a presidential pardon before an indictment, legal experts say.
An NBC News report on Sunday that the special counsel Robert Mueller had gathered enough evidence to indict the former national security adviser Michael Flynn could bolster an 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 US election. He’s also examining whether members of the Trump campaign colluded with Moscow to tilt the race in Trump’s favor.
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. Three weeks earlier, Sally Yates, then the acting attorney general, warned the White House that Flynn 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 Defense Intelligence Agency in 2014, to steer clear of Flynn.
The FBI was already investigating Flynn when he resigned. He informed the Trump transition team in January, before the inauguration, that he was the subject of a separate FBI investigation related to his lobbying work for Turkey. He joined the administration as national security adviser shortly after.
The evidence Mueller has against Flynn relates to his lobbying work through the latter half of 2016, while he was a top Trump campaign surrogate, NBC News reported. 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.
Flynn’s activities came up in a February conversation between Trump and the FBI director at the time, James Comey. Comey testified before the Senate Intelligence Committee in June that soon after Flynn resigned, Trump approached him and asked him to “let this go,” referring to the bureau’s investigation into the former national security adviser. Comey said he refused to assure Trump that the FBI would do so.
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 defense 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 whether president attempted to obstruct justice by firing Comey, Mueller is also looking into the role Trump played in crafting a misleading statement in July about his son Donald Trump Jr.’s meeting in June 2016 with a Kremlin-connected lawyer at Trump Tower. Emails released days later by Trump Jr. showed that the meeting was accepted on the premise that the campaign would receive dirt on Hillary Clinton, the 2016 Democratic presidential nominee.
The statement had to be amended several times as details about the meeting emerged, and Trump’s defense lawyers initially said the president had no knowledge of the meeting or any role in drafting his son’s initial statement.
In late July, however, The Washington Post reported that Trump had “dictated language for” Trump Jr.’s statement, against the advice of aides, while he was aboard Air Force One. Mueller was planning to interview six aides, many of whom were also witness to critical discussions before Comey’s firing, The Post’s report said.
Leaking information about possible charges now is ‘in everybody’s interest’
- George Frey/Getty Images
News of a possible Flynn 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 any charges are brought against him.
The NBC News report said Mueller was increasing pressure on Flynn following last week’s indictments of Paul Manafort, the former Trump campaign chairman, and Rick Gates, a longtime associate of Manafort’s.
It emerged in September that the special counsel was also investigating Flynn’s son, Michael Flynn Jr., in connection with his work for his father’s lobbying firm, Flynn Intel Group.
Renato Mariotti, a former federal prosecutor, wrote that the report suggested Mueller’s team had contacted Flynn about cooperating with the investigation by using a possible indictment of his son as leverage, and that it was likely Flynn’s team was the source of the report.
Mariotti said that though Mueller had a reasonable chance of gaining Flynn’s cooperation because of the substantial prison sentence he could face, Trump could still be expected to pardon Flynn, given Trump’s February request to Comey and previous statements expressing support for the former national security adviser.
Flynn’s son has also aggressively gone after Mueller on social media, retweeting accounts criticizing him while posting reminders of his father’s staunch support for Trump. The tactic “suggests that Flynn Jr. knows he’ll be charged and refuses to flip,” Mariotti said.
Cotter echoed that view and emphasized Trump’s apparent loyalty to Flynn, who was one of his most prominent 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 relatively lengthy indictment that includes more facts and allegations than legally required. The indictments against Manafort and Gates were speaking indictments, and it’s likely that one against Flynn’s indictment would be as well.
Given that, Cotter said, it’s possible that Flynn’s defense lawyers were the source of the NBC News report because it “could serve as a nudge to Trump” to pardon Flynn sooner rather than later to prevent the release of a list of allegations damaging to both Flynn and Trump.
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.”