December 28, 2017
President Trump’s legal team is prepared, should former National Security Adviser Michael Flynn accuse the president or his senior aides of any wrongdoing, according to a report by the Washington Post.
Attorneys for President Trump and his top advisers have privately expressed confidence that Flynn does not have any evidence that could implicate their clients, according to the report. Still, they are concerned by the lenient terms of his plea agreement, which suggest he has promised significant information.
He is also the most senior former Trump adviser that Special Counsel Robert Mueller has been able to net, as Flynn served as Trump’s national security adviser for about a month. Flynn was fired after he told Vice President Michael Pence and other members of the administration that he had not discussed sanctions with Russian Ambassador Sergei Kislyak, when he in fact had.
Flynn reportedly also told FBI agents in an interview in January that he had not discussed the sanctions. He was initially reportedly cleared of any actual wrongdoing during his calls with Kislyak. Earlier this month, Flynn pleaded guilty to one felony count of lying to the FBI, which carries a maximum of five years in prison, but prosecutors said they will recommend zero to six months as part of his cooperation deal.
There was media speculation that Flynn accepted the plea deal to get the special counsel to leave his son, who served as his chief of staff, alone. One person helping craft the defense’s strategy said they plan to use Flynn’s admission of lying against him.
“He’s said it himself: He’s a liar,” the person said.
Defense lawyers have also said privately, according to the Post, that if Flynn accuses anyone of anything, he will be unable to point to White House or campaign records to bolster that claim, and that none of those records suggest a conspiracy by Trump or his inner circle to improperly work with Russians against Hillary Clinton, people who have reviewed the documents told the Post.
Trump has not ruled out pardoning Flynn. On December 15, Trump said, “I don’t want to talk about pardons for Michael Flynn yet.”
“We’ll see what happens. Let’s see. I can say this — when you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry,” he said.
Flynn’s brother, Joe Flynn, on Wednesday morning tweeted to Trump, asking him to pardon his brother.
“Mr. President, I personally believe that a pardon is due to General Flynn, given the apparent and obvious illegitimacy of the manner in which the so called ‘crimes’ he plead guilty to were extracted from him. I ask for quick action on this. Thank you and keep up the good work!” he wrote in a Tweet, which he later deleted.
Outside legal experts interviewed by the Post said it is natural for defense lawyers to consider ways to undermine a possible witness.
“It’s pretty predictable,” Randall D. Eliason, a former public corruption prosecutor in the U.S. Attorney’s Office in Washington, told the Post. “Defense will always argue that a cooperator who lied previously should not be believed, and that there is insufficient evidence of the conspiracy. It’s Defense Strategy 101.”
He also noted that the usefulness of Flynn’s testimony depends on whether there is corroborating information.
Barbara Van Gelder, a veteran white-collar defense lawyer and former prosecutor, concurred, saying it was “textbook” for the defense team to think about countering any accusations by Flynn.
“They will pull out all the arguments: ‘You pleaded guilty. You don’t have anything more than your word, and you probably got your son off with this. You got the deal of the century,’ ” she said.
She, too, told the Post that there needs to be corroborating evidence. “People’s recollections can be faulty but … you can’t cross-examine a document,” she said said. “It is what it is.”
White House advisers note that Flynn did not plead guilty to being a co-conspirator in any criminal scheme, which could be good news for Trump, but prosecutors could still use his testimony to allege such a scheme, if they have no other key witness.
But if Flynn was not charged in a conspiracy, Van Gelder said, “How much of a crime is it, really?”