President Trump and his lawyers are working to distance themselves from Michael Flynn, the former National Security Advisor who has agreed to plead guilty in Special Counsel Robert Mueller’s Russia investigation, and that may be their biggest mistake yet.
Trump’s legal team has said it will not help pay Flynn’s legal bills out of a fund created to aid those caught up in the investigation – and his lawyer today tried to downplay a link between the Flynn charges and the president; even going so far as to claim Flynn was not really an important associate of Trump, referring to him only as a former appointee of President Obama.
Family is the most important thing in life…..don’t ever take yours for granted. Thanks everyone for the support. pic.twitter.com/gVEilG9Dde
— 🇺🇸MFLYNNJR🇺🇸 (@mflynnJR) December 1, 2017
This comes at a time Flynn and his family are desperate for funds to keep up his on-going legal defense, even after his plea deal.
“The legal bills are more than the family can afford,” reports CBS News, adding it has “placed a tremendous financial burden” on Flynn and his family that far exceeds “their ability to pay.”
So just as Flynn needs help the most, Trump’s response is to cut him off completely.
— Rick Klein (@rickklein) December 1, 2017
It also is unlikely Trump can or would eventually use the power of the presidential pardon to help Flynn, as he did with Arizona Sheriff Joe Arpaio. It is not just his efforts to separate from Flynn, but also other legal obstacles that could paint the president as culpable of a crime (more to come on this).
Trump’s arrogant attitude is reflected in comments by his attorney Ty Cobb today, who sniffed that “Nothing about the guilty plea or the charge implicates any one other than Mr. Flynn.”
That suggests a dangerous blind spot by Trump and his lawyers when it comes to how Mueller really operates and where he is going with the indictments of Flynn, former campaign manager Paul Manafort, and former foreign policy advisor George Papadopoulos.
In each case, Mueller has pinned down indictments that might be considered minor, but all of came after a long investigation and intense negotiations.
In each case, the person being charged is making a deal with Mueller to help on the case, testify and finger others – all the way up to Trump – to keep their sentence to a minimum and in the case of Flynn, to avoid charges being filed against his son, Michael Flynn Jr.
“The fact that Flynn was charged with, and is pleading guilty to, such a minor crime suggests a bombshell of a deal with prosecutors,” Christopher Slobogin, professor of law at Vanderbilt University told Vox.
With much bigger crimes looking as a possibility, Slobogiin says the only way “Mueller would agree to it is that Flynn has something valuable to offer in exchange: damaging testimony on someone else…probably someone at the center – or close to the center – of this criminal enterprise.”
That is a reference to Trump and those closest to him.
“Michael Flynn’s plea deal all but ensures that he is working with special counsel Robert Mueller and providing prosecutors with information,” Joshua Dressler, a law professor at Ohio State told Vox.
“This information,” adds Dressler, “very likely involves details that could help them continue their inquiries into whether the Trump campaign helped the Russian government interfere with the 2016 election and/or whether President Trump has attempted to obstruct justice by halting that inquiry.”
The Trump legal team doesn’t seem to recognize how Mueller and the FBI work. The feds negotiate these deals to “flip” a witness from being hostile to being cooperative, in return for letting that person off on a much lighter punishment.
Each person that they flip leads them to others, who are then flipped until they get to the top of the organization – whether it is a Mafia Don or in this case, the president.
The charges against Flynn are “almost assuredly only a first step in what could be a very long and extensive grand jury investigation,” reports USA Today.
“The agency starts at the bottom or periphery of an organization and works inward, layer by layer,” adds USA Today, “until it’s in a position to build a rock-solid case against the person at the top.”
So when Trump’s lawyers belittle the importance of the charges against Flynn or Manafort and emphasize how far those charges are from the president, they fail to see the huge red flags it represents.
Even if Trump should decide to use his presidential pardon to protect Flynn or even his son-in-law Jared Kushner, that comes with dangers as well.
Once a person is pardoned, they still have an obligation to testify. The difference is after a pardon, they can no longer plead the Fifth Amendment against self-incrimation or remain silent – because they are no longer subject to prosecution.
A pardon can also backfire on the president BIGLY.
“If the President issues a pardon in order to influence a witness and impede the investigation,” Lisa Kern Griffin, a law professor at Duke University told Vox for a Dec. 1 article, “that would also be a further act of obstruction.”
“Although he has the legal authority to pardon,” adds Griffin, “he cannot use that power to commit another crime.”
A pardon also only covers federal crimes, but many of the charges are also violations of state law. The New York Attorney General is also working on this case.
“Defendants counting on a blanket pardon,” adds Griffin, “may find that it does not cover all potential prosecutions.”
The crime that the President pardons can also come back to hurt his own case. Julie O’Sullivan, a law professor at Georgetown University told Vox, “it may prove to be one of the stupidest things he has yet done.
“If the president were to pardon Kushner or Manafort or Flynn,” adds O’Sullivan, “presumably that pardon would extend to the Russia investigation because that is what concerns Trump.”
“If – and this is a big if – the president is shown to have pardoned them to avoid his own personal exposure in the Russia investigation,” says O’Sullivan, “that in and of itself could constitute obstruction of justice.”
One danger is that he pardons a lot of family members like his daughter, son-in-law and two sons to protect them – which would be unprecedented in our democracy – but in the process just makes himself look more guilty.
If Trump uses the pardon to hide his own improper activity, that would also be grounds to find him guilty of obstruction of justice.
“Russiagate pardons would pose some strategic risks for Trump,” “No one pardoned could constitutionally withhold their testimony in either a criminal investigation or from Congress.”
“Unlike the pardon of Arpaio,” Peter Shane, a law professor at Oho State told Vox., “which is a despicable blow to the rule of law, pardoning anyone who might have been a co-conspirator in misconduct involving Trump himself would much more plausibility be impeachable.”
That means if Trump pardons someone to protect himself, he may not face criminal charges – no president ever has – but it would be grounds to impeach him.
That may seem like a longshot possibility now, but as Mueller continues to do his job, Trump could be found to have obstructed justice even if he did not actively work with Russia, and the consequences would be serious.
Remember Nixon did not fall because of the crime at the Watergate Hotel, but rather got in trouble for trying to hide what happened after the fact.
Trump has shown tremendous arrogance as president, often deluding himself about everything from the size of the inaugural crowd to his own popularity, but with Mueller on his trail, the truth is all that will matter in the end.
As a final option, Trump could fire his Attorney General or Assistant Attorney General and install someone in the Justice Department who would agree to fire Mueller.
That would certainly set off a political firestorm and could even be evidence that Trump is guilty of obstruction of justice.
Senator Richard Durbin (D-Ill) told Bloomberg Politics it could be worse than that. If he fires Mueller, says Durbin, we would be “on the…doorstep of a constitutional crisis in this country.”
At the least, that could paralyze the government and likely make it impossible for Trump to continue to govern.
And even if Muller was out, the case could be handed to someone else who would carry it to the logical end – the ouster of Trump and others around him.