On Tuesday evening, Special Counsel Robert Mueller filed his sentencing memo for Lt. Gen. Michael Flynn, who almost exactly one year ago pleaded guilty to lying to the FBI. The memo said that Flynn’s cooperation was “substantial” and “particularly valuable” to several ongoing investigations, enough so that Mueller recommended the lowest possible sentence.
In other words, Mueller pardoned Flynn.
On its own that’s a message to co-conspirators: You can roll the dice on a pardon from Donald Trump, or you can get one for sure from Mueller.
The two-part memo totaled 13 pages, but six of them contained substantial redactions, so it’s difficult to get a full sense of the extent of Flynn’s cooperation. However, we can say it was fairly extensive: Mueller said Flynn contributed over the course of nineteen interviews “substantial” and “firsthand” (i.e., eyewitness) information helpful to several investigations, including the investigation into the Trump campaign’s conspiracy with the Russian government. But because those investigations are ongoing, some of the fruits of Flynn’s cooperation might not yet be clear. And indeed, Mueller says Flynn fully cooperated in providing information about contacts between the Trump transition team and Russian government officials, but one instance is entirely redacted.
So that’s very important: Flynn has provided information Mueller has already used, as well as information he has yet to use. Keep in mind too that Mueller pushed Flynn’s sentencing back multiple times, indicating he had been providing Mueller useful information even in these most recent—and hectic—months. In other words, despite the rhetoric and leaks you might hear from Trump and his defense team, Mueller is nowhere near done. More people will get charged thanks to Flynn’s help.
But Mueller did tell us a lot, even between those endless rows of fat black redacted lines—and even told us some things with them. For instance, one reason prosecutors redact sections is to avoid making public the names of people not yet formally implicated or charged with crimes related to the filing. Some of this in fact appears to point straight to Donald Trump. Let’s make sense of what we can.
So Flynn just lied to the FBI, right? That’s not collusion! Plus he only faced 0-6 months for that crime, right? So who cares?
Well, first it is in fact, a big deal (Mueller says Flynn’s crimes are “serious”) to lie to the Department of Justice in a way that impedes an investigation. Flynn did this multiple times in multiple separate investigations. He did this as a retired general serving in the capacity as Trump’s incoming National Security Adviser.
And look what Flynn lied about: Discussing sanctions with Russian government officials, and acting as an unregistered agent of a foreign government (Turkey). In other words, Mueller only charged Flynn with the cover-up, not with the more serious underlying crimes. This isn’t necessarily because Mueller couldn’t pin Flynn on those crimes: It was part of Mueller’s end of the plea deal.
So about those crimes…
The Special Counsel doesn’t want the public to know all the details of these investigations. In fact, Mueller doesn’t even want us to know what two of these investigations even are: Two of the three investigations he mentions are entirely redacted, including a mysterious criminal investigation. The one unredacted investigation is Mueller’s main “investigation concerning any links or coordination between the Russian government and individuals associated with the campaign of President Donald J. Trump.”
Though we don’t know what those other investigations are, that doesn’t mean we don’t know they exist. For instance, it’s possible one of them is the investigation into whether Trump committed obstruction of justice—Flynn’s firing is a major event in that investigation—and Mueller wanted to leave it out for unknown reasons. However, it’s quite likely the criminal investigation is highly sensitive: The entire section about it has been blacked out, including its name:
Journalist Scott Stedman posted a tantalizing tweet speculating about that name:
It’s also possible that one investigation involves Flynn’s connections to GOP operative Peter Smith, who in the summer of 2016 was reportedly—on behalf of the Trump campaign—tried to get in touch with Russian hackers he believed had Hillary’s personal emails. Smith said he’d been in touch with Flynn, as well as with Flynn’s deranged son Michael Flynn Jr. and other senior campaign officials.
So though we can’t say what these investigations are, we can say a few things: they’re separate from the investigation of Russian election interference; they’re still going on; they’re important; and Flynn cooperated extensively.
One of the most stunning parts of the memo is the section on the investigation into the election conspiracy. Most of this is redacted, and in a way that’s intriguing for most of us, but terrifying for Trump.
First, though, don’t miss the obvious: Flynn gave Mueller extensive information about collusion. He wouldn’t have spoken with Mueller for a year if nothing had happened.
Next, Mueller acknowledges that Flynn helped with this core investigation which we all know about. But Mueller adds that Flynn helped with ________.
Hm. The memo details some of Flynn’s assistance for the core investigation, but then delivers more than 30 redacted lines, with one phrase in the middle left uncovered: ”[t]he defendant also provided useful information concerning…”
But look at the structure of the redactions. We have a section with a main header—”B. The Special Counsel’s Investigation”—which is offset. This section is described as the broad investigation into the Trump-Russia conspiracy. That introduction is followed by an offset subheader that specifically deals with the transition team’s interaction with Russian government officials. This would likely deal with the events surrounding Flynn’s conversations with the Russian Ambassador. That structure looks like this:
We get some redacted lines at the end of that subsection, followed by what’s almost certain to be another section or subsection header. This means the information below it wouldn’t be about the transition team specifically, but something else. This might very well be general campaign connections. Here:
We get one more of these before the collusion section ends:
It seems fair to guess that because the Peter Smith connections have been absent from this memo, and because Mueller has been investigating those connections, some of this section concerns that investigation. It also seems fair to guess that this section contains a whole lot more. If I were Trump, I’d be terrified of this.
But there’s one more sentence that should worry him even more.
Mueller cited in detail Flynn’s service to his country, noting he “served in the military for over 33 years, including five years of combat duty, led the Defense Intelligence Agency, and retired as a 3-star Lieutenant General.” The memo asserts that Flynn’s record of public service is a compelling reason to treat him as a special case—basically that Flynn deserves leniency because he put his country over Trump. However, Mueller then adds: “Senior government leaders should be held to the highest standards.” Flynn was so helpful to Mueller, though, that it overrode this concern.
More concerning: That category would, obviously, include Trump.
Since Trump took office, constitutional scholars have debated whether Mueller can indict or subpoena the President. As of today, a DOJ memo from 2000 asserts that a president can’t be indicted, basically because it would disrupt his ability to lead. This hasn’t been tested in court, and we might infer from Mueller’s comment about Flynn’s senior status that the Special Counsel in this case might be even more inclined, not less, to indict Trump for his crimes.
Maybe. But not necessarily.
Mueller gives Flynn kudos for “accepting responsibility in a timely fashion and substantially assisting the government.” Flynn flipped quickly and it saved his skin, and possibly his son’s, too. Note that the memo specifically accounts for Flynn’s undisclosed work as a foreign agent of Turkey, work which included a proposal to kidnap Turkish dissident cleric Fetullah Gulen—who is residing legally in the United States—and return him to the Turkish government. Mueller even takes the extra step of noting this happened soon after a coup d’état was attempted in Turkey. This is, obviously, reprehensible for a U.S. political official, but Mueller concluded Flynn’s cooperation was valuable enough that it canceled out these massive crimes, which themselves border on treason.
Moreover, it appears that Flynn’s cooperation convinced other co-conspirators and firsthand witnesses to jump on the Mueller train:
Still, though, there’s the mystery of Peter Smith, the mystery of obstruction of justice, and the mystery of what other aspects of the campaign’s connections with Russia that Mueller might still be exploring. He hasn’t, as far as we can see here, absolved Flynn of crimes related to any of that, and possibly not even of some of his crimes (beyond lying to the FBI) related to his work for Turkey. Flynn also faces plenty of other potential crimes, such as the paid trip he took to Russia in December 2015, where he sat with Vladimir Putin and celebrated Russian propaganda outlet RT’s birthday. Flynn didn’t get Pentagon permission before this trip, and didn’t disclose it when he applied to renew his security clearance in 2016.
It appears, then, that even though Flynn dodged one sentence, Mueller might still have him—and his son—dead to rights on a number of other possible crimes. All of this, of course, should rattle the fat bird screaming in the Oval Office something fierce.