Considering Presidential Pardons after Flynn’s Guilty Plea

by Andrew Wright, Associate Professor, Savannah Law School

Michael Flynn is cooperating with Special Counsel Robert Mueller’s investigation. The plea agreement requires that Flynn “shall cooperate fully, truthfully, completely, and forthrightly with this Office and other Federal, state, and local law enforcement authorities identified by this Office.” Flynn’s statement of the offense ominously announces that “[t]hese facts do not constitute all of the facts known to the parties concerning the charged offense.” There is some debate about whether this agreement signals that Flynn has significant incriminating information about senior-most White House advisors, or President Trump himself. Only Flynn, Mueller, and the others whom Flynn might implicate on matters related to the investigation are in a position to know the quality of his cooperation.

But what if President Trump started using his pardon power to end the Russia investigation? What would be the effect, if any, if President Trump pardoned Flynn now? What about pardons of others that might be implicated by Flynn in his cooperation? Pardons raise a number of important questions after Flynn’s plea.

As an initial matter, a presidential pardon would relieve Flynn of punishment for the crime to which he has pled. He pled guilty to a single-count felony violation of the false statement statute, 18 U.S.C. § 1001. The plea agreement reflects an agreement by the parties as to Flynn’s estimated sentencing range under the Federal Sentencing Guidelines: 0-6 months of prison time and $500-$9,500 in fines in light of the total offense level and Flynn’s criminal history profile. A presidential pardon would relieve Flynn of all forms of punishment meted out by prison time and fines.

A full and total pardon would also erase other federal criminal exposure for any uncharged federal crimes Flynn may have committed that are within the terms of the pardon. While only Mueller has looked at all the available evidence, press reports about Flynn’s business dealings with people and entities affiliated with the Turkish government suggest Mueller, at a minimum, could have potentially sought criminal charges related to omissions and failures under the Foreign Agent Registration Act (FARA). The Manafort and Gates indictment demonstrates Mueller’s willingness to bring charges under FARA. Press accounts have also linked Flynn to conduct that could implicate conspiracy to commit kidnapping and criminal provisions of federal ethics laws. Flynn’s transition contacts with the Russian ambassador also raise the possibility of charges under the Logan Act because it appears he was advocating Russian actions, although that statute has its critics. In any event, uncharged crimes against Flynn, and perhaps his son Michael Flynn, Jr., remain the critical source of Mueller’s leverage to ensure Flynn’s continued cooperation. If President Trump pardoned Flynn, it would eliminate that leverage.

Presidential pardons only reach federal crimes. They have no effect on criminal prosecutions by the states. On his show The Beat, Ari Melber argued that state cooperation provision is designed to defeat presidential pardons of other parties who may have violated state law. Jed Shugerman has also advanced the theory that Mueller is playing a inside/outside federalism game as a hedge against pardons. For example, under the agreement, at the Special Counsel’s command Flynn would have to testify about any incriminating knowledge he has that would be relevant to a state money laundering prosecution against, say, Jared Kushner. The weakness in the Flynn cooperation agreement as a line of defense against the bad faith use of presidential pardons is that if the President pardons Flynn, Muller’s legal leverage over Flynn evaporates and Flynn would be less likely to honor the agreement.

While those could be significant consequences, a Flynn pardon would worsen the President’s broader legal and political troubles. It would immediately be perceived for what it was—self-protective obstruction of a criminal investigation. Some, like Andy Grewal, argue that no exercise of executive power by the President can constitute a criminal act defined by Congress. I fundamentally disagree. The use of the pardon power, like removal of the FBI director, in order to obstruct an investigation, with corrupt intent, could violate an obstruction of justice statute as well as the Take Care Clause of the Constitution. But that is a debate for another time. Self-protective pardons under these circumstances would be politically toxic, and would be an event as seismic as Comey’s firing.

Yes, Every Mueller Document Is Rife With Clues

by Dan Froomkin

Federal prosecutors – even those not working on cases of major public interest – may well uncover facts in the course of their investigations that if made public would have explosive political ramifications.

But Justice Department rules are extraordinarily strict: Neither prosecutors nor the FBI can tell anyone what they've discovered unless it's in the fulfillment of their official duties.

That's important: the process of investigation often turns up things that are not true, or do not amount to crimes, but that could nevertheless ruin reputations. (The November 2017 update of the U.S. Attorney's Manual includes new language about the "General Need for Confidentiality" that is different, but consistent, with the previous version.)

Not everyone follows those rules. Special counsel Kenneth Starr, who serially investigated Bill and Hillary Clinton in the 1990s, ran an office that was notorious for leaking profusely to reporters. Plus, he was instructed to file an extensive report to Congress and a judge approved the almost unprecedented release of the related grand jury transcripts. So we learned an awful lot about his investigation, both in real-time and soon after.

By contrast, special counsel Robert Mueller's investigation into possible Trump campaign collusion with the Russians has been remarkably leak-free. As far as I can tell, all the folks talking to the press are either witnesses or their confidantes.

The only information coming out of Mueller's office is in the way of a growing number of official court filings. On December 1, he released a criminal information, statement of the offense, and plea agreement related to Mueller's indictment of former national security adviser Michael Flynn for lying to the FBI.

Those documents are rife with clues about what Mueller has been finding out; for instance, he was exceedingly specific about what Flynn was lying about and when and to who. It is of course possible that the inclusion of all those clues was accidental, and simply the inevitable byproduct of a necessary legal maneuver. But it's more likely that the timing and the details are all Mueller's way of providing the public with as much information as he legally can.

As a result, the extraordinarily close scrutiny of these documents by the media is not only entirely appropriate, it is necessary. (See, for instance, Charlie Savage's deconstruction and former U.S. attorney Harry Litman's 10 Key Takeaways in the New York Times.)

If every fact that Mueller provides is a dot, connecting them is the obvious next step. This is a time for informed speculation, ideally informed by people knowledgeable about how federal public corruption cases work. (University of Chicago Law professors Daniel Hemel and Eric Posner's informed speculation on the Trump campaign's apparent violation of the Logan Act is a good example.)

Some observers made the mistake of thinking that Flynn only being charged with lying to the FBI meant that Mueller is coming up empty and the story is dying down. But almost every fact Mueller has now established on the record leads to new questions – particularly when examining Trump's contemporaneous tweets alongside his new ones.

On December 4, Mueller's team filed a brief arguing against any easing of the bail conditions for former Trump campaign director Paul Manafort, who was indicted in October for money laundering. The brief said Manafort should not be trusted because he was violating the district court's gag order.

But it was clear to observers that the brief's contents had at least as much to do with messaging as with the law. The brief stated that Mueller's team had discovered that Manafort was ghostwriting an editorial regarding his political work for Ukraine, along with "a long-time Russian colleague of Manafort's who is currently based in Russia and assessed to have ties to a Russian intelligence service."

That was a Mueller shot-across-the-bow to Manafort and any other witnesses and subjects in the investigation, warning them not to mess with him. But it was also another major public clue that Mueller has information about Russian contacts with Trump campaign officials that hasn't come out yet.

Reportage of this story has been aggressive. But even when prosecutors lay down a trail of breadcrumbs in their official statements, establishment-media reporters don't always follow them.

Case in point, establishment journalists covering the Scooter Libby trial in 2007 consistently stopped short of reporting the obvious conclusion to which special prosecutor Patrick Fitzgerald repeatedly pointed: that the case was not really about Libby at all, but about Vice President Dick Cheney, the man who Libby was lying to protect. (See my column at the time: The Cloud Over Cheney.)

Libby, of course, famously lied to the FBI, denying that he had told any journalist about Valerie Plame's identity as a CIA operative in an attempt to discredit her husband, Iraq war critic Joseph Wilson. As Fitzgerald made abundantly clear in his rapid-fire closing statement, on February 20, 2007, he was lying to protect Cheney, who had sent him out to do so.

"There is talk about a cloud over the vice president. There is a cloud over the White House as to what happened. Don't you think the FBI, the grand jury, the American people are entitled to a straight answer?" Fitzgerald asked.

"People want to know who did it. What role did they play? What role did the defendant play? What role did others play? What role did the Vice President play…?"

Fitzgerald argued that the No. 1 talking point drafted at Cheney's direction -- "It is not clear who authorized Joe Wilson's trip to Niger" -- was a de facto instruction to Libby and others to discuss Valerie Plame.

Libby, he said, "stole the truth from the judicial system."

The Washington Post, the New York Times and the Associated Press, among others, didn't write that story the next day. Instead, they simply summarized the fireworks of the dueling closing arguments.

It's an object lesson in the importance of reporting the dots – but not just stopping there.

It took Fitzgerald nearly two years to indict Libby – so Mueller is obviously working at a brisker pace. Nevertheless, he is slowed by the need to put his case together meticulously. And unlike Starr, he has not been given either orders or permission to submit a report to Congress. (See our May 24, 2017, blog item: We Can't Count on Robert Mueller to Tell Us What We Need to Know.)

So, with Mueller so constricted in how and what he can say publicly, it's worth considering everything he says as a clue. And with Trump himself being one of the few people who knows what Mueller could be finding out, it's worth considering that his tweets and comments attempting to delegitimize the FBI, the special counsel, and the judiciary itself, are themselves clues as well.

Will Whoever Fires Bob Mueller Please Turn Off the Lights

by Victoria Bassetti

*This piece was originally posted by Brennan Center for Justice

White House spokesperson Sarah Huckabee Sanders says he won’t do it.

Last Monday, she was asked: “Is the President going to rule out, once and for all, firing [Special Prosecutor] Robert Mueller.”

“There's no intention or plan to make any changes in regards to the special counsel,” she replied.

Sen. Bob Corker (R-Tenn), fresh off warning that the President might start World War III, can’t imagine he’ll do it.

Last Tuesday, a reporter cornered the president’s harshest Senate critic in a hallway and posed the following: “There are stories that the President is thinking about firing Mueller. Do you think that’s appropriate?”

Continue reading "Will Whoever Fires Bob Mueller Please Turn Off the Lights"

Robert Mueller’s Message to Paul Manafort: Cooperate Now or You’ll Regret It

by Barbara McQuadeProfessor from Practice, University of Michigan Law School, and former U.S. Attorney for the Eastern District of Michigan

*This piece was originally published on The Daily Beast.

The unsealing of the indictment charging former Trump campaign chairman Paul Manafort was only the second-most significant piece of news Monday.

The more significant news was the guilty plea of former Trump campaign adviser George Papadopoulos, who was arrested in July and entered a guilty plea about three weeks ago. The documents revealing those facts were also unsealed today. And the timing of the two being filed on the same day is likely no coincidence.

While the Manafort charges are important because of the role he played as one-time Trump campaign chairman, the charges themselves allege improper financial transactions and failure to disclose foreign lobbying activities, offenses that are unrelated to the Trump campaign. Rick Gates, Manafort’s business partner and a Trump campaign official, was also charged. The charges against Manafort may provide leverage to encourage him to cooperate in the investigation, but the charges against Papadopoulos relate directly to connections between the Russian government and the Trump campaign.

Papadopoulos has pleaded guilty to charges of making false statements to the FBI in connection with its investigation into Russian interference in the election. The false statements relate to his interactions with an overseas professor with substantial connections to Russian government officials and a female Russian national that be believed had connections to the Russian government. The documents state that the professor told Papadopoulos that he had “dirt” about Hillary Clinton in the form of “thousands of emails.” Papadopoulos admitted to lying about the timing and substance of his conversations with these individuals, and about his efforts to use the professor’s connections to arrange a meeting between the campaign and Russian government officials. Not quite collusion, but getting closer.

The Papadopoulos plea agreement makes reference to his cooperation. It is likely a strategic decision by Mueller to unseal both sets of charges on the same day. Mueller seems to be sending a message that cooperators get deals, and that Manafort faces additional potential criminal exposure. Earlier reports indicated that Mueller’s team had warned Manafort’s lawyers that he would be indicted. This information is often communicated to a target before indictment to provide an opportunity to cooperate before he faces criminal charges. The fact that he was indicted suggests that he has not cooperated to date.

Manafort may want to reconsider his decision in light of the news about Papadopoulos. A document attached to the plea agreement sets out detailed allegations of the offense. It identifies four Trump campaign officials without naming them as a “Campaign Supervisor,” two “High-Ranking Campaign Officials,” and a “Senior Policy Advisor.” This naming convention complies with Department of Justice policy protect the names of co-conspirators who are not being charged. But while the public does not know the identities of these four campaign officials, Manafort likely does. He may even be one of the unnamed officials in this document, filed on Oct. 5, before he himself was charged. It may also be that these officials are cooperating in the investigation or at least have an incentive to do so to avoid charges. Manafort may want to beat them to the table. Oftentimes, the early cooperators get the best deals.

The document includes a number of interesting factual assertions about these other officials. According to the document:

  • Papadopoulos sent an email to the Senior Policy Advisor that “the Russian government has an open invitation by Putin for Mr. Trump to meet him when he is ready.”
  • Papadopoulos emailed one High-Ranking Campaign Official “to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right.”
  • The High-Level Campaign Official forwarded this email to another high-level campaign official with the note, “Let’s discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.” Some reports indicate the official who sent this message is Manafort.
  • The High-Ranking Campaign Official referred Papadopoulos to the Campaign Supervisor regarding planning a potential meeting with Russia “because he is running point.”
  • Papadopoulos sent an email message to the Campaign Supervisor advising him of a request by the Russian Ministry of Foreign Affairs to see whether Trump was interested in visiting Russia.
  • The Campaign Supervisor sent an email to Papadopoulos stating, “I would encourage you” and another foreign policy adviser to the campaign to “make the trip[], if it is feasible.”