Friday, December 1, 2017
Here is what we can tell so far.
- Flynn is obviously co-operating. You don't get to plead to a Criminal Information unless you are cooperating.
- If even half of what has been reported about Flynn in the press is true, a one count Criminal Information with a five year statutory cap is an outstanding deal. It is an even better deal if Flynn bought a walk for his son. UPDATE: The Plea Agreement, which purports to be complete, contains no promises related to Flynn's son.
- This is a bare bones Criminal Information, but not as bare bones as the one charged against George Papadopoulos. We should know much more when we see the Plea Agreement and Statement of the Offense. The Statement of the Offense was the key document in the Papadopoulos case. But even though the Papadopoulos Statement of the Offense is detailed in some areas it is curiously silent in others. For example, it never reveals whether Papadopoulos specifically informed Trump campaign officials that the Russians had "dirt" on Mrs. Clinton. UPDATE: The Statement of the Offense reveals separate conversations Flynn had with "a senior official", "senior members", and "a very senior member" of the Presidential Transition Team ("PTT"). These conversations, if they occurred, are troubling, because they appear to reveal that PTT officials were conducting foreign policy and undermining President Obama's foreign policy before President Trump took office.
Here is what to look for or ask.
- How detailed was Flynn's criminal conduct? The Statement of the Offense should tell us that. UPDATE: The Statement of the Offense tells us that in addition to the conduct charged in the Criminal Information, Flynn violated the Foreign Agents Registration Act ("FARA") by making several false statements and omissions related to his dealings with the Republic of Turkey.
- Will the Plea Agreement contain a provision promising not to charge Flynn for any crimes detailed in the Statement of the Offense, in exchange for Flynn's guilty plea? Such a provision is fairly standard and was included in the Papadopoulos Plea Agreement. UPDATE: It's in there.
- Will Flynn's son walk? This may be revealed in the Plea Agreement. UPDATE: Not included in the Plea Agreement. This could have been handled in a conversation between Mueller's prosecutors and Flynn and his attorneys. It might have gone something like this: "Look. We aren't promising anything. But based on our current state of knowledge we have no interest in going after your son." SECOND UPDATE: Alternatively, an Immunity Agreement for Flynn's son may have been wrapped up prior to, and as a pre-condition of, Flynn's deal.
- Will there be a sealed Supplemental Plea Agreement? We should be able to tell this by language inserted in the public plea agreement. It will say that the Plea Agreement, and any supplemental filings, are the complete agreement. UPDATE: There is not.
- Is there a separate sealed agreement promising Flynn a 5K1.1 reduction under the Sentencing Guidelines in exchange for cooperation? Again, this should be revealed in the public Plea Agreement. UPDATE: There is no separate sealed agreement. The 5K1.1 possibility (I shouldn't have said promise) in exchange for Flynn's substantial assistance is included in the public Plea Agreement. You may ask why Flynn even needs a 5K1.1 since his Guideline Range is 0-6 months--the lowest possible range. Two reasons. First, the sentencing judge may not agree with the Government's predicted Guideline Range. Second, a 5K1.1 motion for downward departure under the Guidelines will signal to the sentencing judge that Flynn has been, in Mueller's view, fully and truthfully cooperative, virtually insuring a probationary sentence. Continue to sStay tuned.