Michael Flynn: What We Know, What Mueller Knows

The most remarkable moment in the press excitement that followed Michael Flynn’s guilty plea Friday came later that evening, when ABC News issued what it, at first, called a clarification. “During a live Special Report, ABC News reported that a confidant of Lt. Gen. Michael Flynn [said he] was prepared to testify that then-candidate Donald Trump instructed Flynn to contact Russian officials during the campaign,” ABC said. “That source later clarified that… it was shortly after the election, that President-elect Trump directed Flynn to contact Russian officials on topics that included working jointly against ISIS.” By Saturday, the network had suspended the journalist who made the initial report.

Earlier Friday, Flynn, who briefly served as Trump’s national security adviser, pleaded guilty to having told three lies to the government. He lied to the FBI about the substance of his efforts to persuade Russia not to respond to sanctions President Obama imposed on December 28 in retaliation for Russian tampering in the US election. He also lied to the FBI about his efforts to convince other countries to delay or defeat a UN resolution regarding Israel’s illegal settlements in the West Bank. And in government filings, he lied about whether he knew his lobbying activities, which extended into the transition period, benefited Turkey. Because all three lies were charged in one false statements count, and because the retired general used to be an upstanding citizen, he might avoid prison time by cooperating fully with Special Counsel Robert Mueller’s inquiry.

ABC’s mistake goes to the substance of what Flynn is expected to share with Mueller’s investigators. While it is inappropriate—and under an obscure, little-enforced law, the Logan Act, illegal—for anyone outside the executive branch to conduct negotiations with foreign countries, policy discussions do start during presidential transition periods. The substance of Flynn’s conversations, particularly those concerning sanctions, might still be problematic, but only if Mueller found evidence of earlier discussions, during the campaign, that tied sanctions relief to Russian assistance in winning the election, or if Flynn’s conversations with Russia’s ambassador, Sergey Kislyak, reflected some recognition that sanctions relief would amount to a payoff.

That surely is why ABC changed its story and suspended the journalist, stating that the discussions with Russia that Trump ordered Flynn to conduct during the election only involved “find[ing] ways to repair relations with Russia and other hot spots,” whereas after the election Trump “told him to contact Russia on issues, including working together to fight ISIS.” ABC’s clarification involves precisely how much trouble Flynn might get Trump in. When Flynn’s confidant said Trump ordered Flynn to reach out to Russia “shortly after the election,” that may mean “immediately after the election.”

Take, for example, the public statement prepared for testimony to congressional committees by the president’s son-in-law and adviser Jared Kushner. There, he revealed that on the day after the election, in response to a congratulatory email from Russian President Vladimir Putin, he asked the publisher of The National Interest, Dimitri Simes, for the name of Russia’s ambassador to the United States. “On November 9, the day after the election, I could not even remember the name of the Russian ambassador,” Kushner claimed. “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

Simes had set up a Trump foreign policy event in April 2016 where four ambassadors, including Kislyak, had met members of Trump’s campaign. Kushner also claims that his explanation for the email to Simes exhibiting an interest in contacting Kislyak the day after the election (which would have been turned over to congressional investigators and Mueller’s, and which would therefore require some explanation) was proof that he “had no ongoing relationship with the ambassador before the election, and had limited knowledge about him then.”

CNN recently reported, however, that in an interview conducted in the weeks before Flynn’s plea deal, “Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports.” So Mueller’s team may now have doubts about the explanation Kushner offered for his interest in speaking with Kislyak as one of the first things he did after his father-in-law got elected.

Regardless of ABC’s distinction between the conversations Flynn conducted on behalf of Trump before and after the election in its revised story, the speed with which Trump’s people started envisioning how they’d work with Russia on policy right after election day is apparent. That renders the distinction fairly meaningless. But the focus on the ABC correction highlights something important about the story Mueller’s prosecutors have told in public in the documents related to the Flynn plea.

Within the descriptions of the two exchanges with Kislyak that Flynn lied about to the FBI, for example, Mueller’s team left tantalizing gaps. For example, when they describe a transition team official—subsequently identified as K.T. McFarland—discussing the sanctions that President Obama imposed on December 28, they do not specify what “incoming administration’s foreign policy goals” were raised in the conversation. On Saturday, a New York Times story provided the answer: McFarland worried that “if there is a tit-for-tat escalation, Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him.” We can see that by its omission, Mueller’s team avoided disclosing knowledge of a transition team official directly connecting the election result with sanctions relief. Likewise, although the plea deal reports that Flynn called Kislyak on December 29 to request “that Russia not escalate the situation and only respond… in a reciprocal manner,” it does not reveal what else transpired in the conversation that would explain why Russia not only did not retaliate—which is all Flynn requested—but went so far as to invite the children of American diplomats in Russia to a party at the Kremlin.

Then there’s the gap between the two conversations. When, on December 22, Flynn had asked Kislyak to delay or defeat the UN resolution on Israel, Russia did not comply; on the contrary, it did the opposite, voting in favor of the resolution condemning Israeli actions. But when Flynn made the sanctions-related request just one week later, Russia went beyond his request. What happened in the interim to change Russia’s willingness to cooperate with the incoming administration?

More important, because Flynn’s charges pertain only to those transition-period conversations, Mueller’s team has given us no glimpse of other things the FBI surely asked Flynn about in their January 24 interview with him—such as the trip to Russia to attend an RT event in December 2015, where he met Vladimir Putin, to say nothing of meetings he participated in as part of the campaign. Did Flynn tell the truth about those matters? Did the FBI not have any communications intercepts that might prove he was lying? Or did Mueller’s team withhold information it has on these points in order to conceal it from other investigative targets?

There is also the possibility that Flynn was simply not as involved, and therefore not aware of, other discussions during the campaign that might make his transition-period contacts far more damning. Flynn was not present at a March 31 meeting where George Papadopoulos, the campaign adviser who himself pleaded guilty to false statements in October, told Trump’s foreign policy advisory committee that he was seeking a meeting with Putin, for example. Flynn also didn’t attend the June 9 Trump Tower meeting where Kushner, Donald Trump Jr., and Paul Manafort met a Russian lawyer who was offering dirt on Hillary Clinton. Flynn may not have had a full picture of how his transition-period actions related to events during the election that could involve a quid pro quo. That knowledge might be dispersed among other members of the campaign, or it might be limited to people closer to Trump or to Trump alone.

In the rush to understand the changed story of ABC’s source, in the efforts to figure out how much damage Flynn’s plea will do to Trump and other senior administration officials, most observers seem to have overlooked one of the few available metrics on the Mueller investigation: the size of his team. While the numbers have fluctuated, Mueller has somewhere in the neighborhood of sixteen prosecutors. Thus far, we’ve seen official notice of what just half of them have been up to. These included: the three who indicted Paul Manafort and Rick Gates, Andrew Weissmann, Greg Andres, and Kyle Freeny; the three who filed documents on the George Papadopoulos plea, Jeannie Rhee, Andrew Goldstein, and Aaron Zelinsky; and the two prosecutors who signed the Flynn plea, Brandon Van Grack and Zainab Ahmad (though Rhee reportedly played a part in that, too). The Washington Post has described how witnesses were interviewed by multiple teams. “They say, ‘Hey, we’re not trying to be rude, but people are going to come in and out a lot,’” one witness explained. “They kind of cycle in and out of the room.” While some of the others are surely working on more specialized areas (such as preparing for any appeals), that still leaves enough prosecutors to make up a couple of other teams pursuing other parts of this investigation, to say nothing of all the mostly unnamed FBI agents doing the investigative legwork.

Robert Mueller has put only a few of his cards on the table. We can’t know what high-ranking face cards he may hold in his hand, but what he has played so far is consistent with the possibility he’s sitting on something. That, certainly, is what he wants the potential witnesses who have not yet testified or agreed to cooperate to worry about. Until he gets that testimony, Mueller’s poker play will continue.