Thursday, December 6, 2018

More Clues From Special Counsel Mueller

The latest filing by Special Prosecutor Mueller is very telling as to the status of the investigation.  Michael Flynn pleaded guilty on Dec. 1, 2017, to making false statements to FBI agents, in violation of 18 U.S.C. 1001.  In anticipation of sentencing on December 18th, the government filed its Memorandum in Aid of Sentencing, along with a heavily redacted Addendum. Some thoughts:

1.  The fact that Flynn plead to a Section 1001 violation hurts Mueller's future cases if they decide to use him to testify against others in those cases.  Pleading to a section 1001 charge is admitting that the individual gave a false, material statement, knowingly and willfully, within the executive, legislative, or judicial branch of the government.  The opening cross-examination questions for such a witness might be - 1) You are a convicted felon? 2) And you were convicted for a crime of lying? 3) And you lied to the FBI? 

2. But three things are noteworthy here - 1) the charge is false statements and not perjury - if it had been perjury then the cross-examination would go on about lying under oath and be dragged out for many more questions than the three previous ones; 2) prosecutors do not get to choose their witnesses and if they can provide an explanation for the lie (e.g. pressure or duress) it stings less; and 3) if you can back up the individual's testimony with other evidence then the false statement charge is less problematic.  It seems likely here that there are documents, emails, or other evidence to support whatever Flynn may be saying.

3. Using a "shortcut offense" like section 1001 is typically not good since it takes away from the actual wrongdoing and society never sees the underlying conduct. Deterrence is best achieved when the actual criminality is disclosed and punished. (see White Collar Shortcuts here).  But that is not the case here. Here Flynn is likely a source providing information for other investigations that can have charges beyond shortcut offenses.  For one, Mueller did not use a shortcut in his charging of cybercrimes against Russians (see here). So using false statements here is again justified.

4. 19 interviews - WOW.  That is significant.  One doesn't meet 19 times and get nothing. 

5. This is an ongoing investigation.  Investigations in white collar cases take time.  This investigation is certainly not finished -- one need only look at the number of redactions in the Addendum to reach this conclusion.

6. That the substantial assistance provided extends beyond the special counsel.  Part A says "XXX Criminal Investigation" and Part B says "The Special Counsel's Office's Investigation" and then appears to have three separate subsections - with one subsection completely redacted.  So one could conclude that the special counsel has 3 investigations that Flynn has been useful for, and that someone else perhaps is using him.

7. Mueller has yet again maintained secrecy, and there have been no leaks.  This is impressive.  It is also impressive that Mueller is speaking only through court papers and not providing any additional information.

8.  It may be frustrating to many that more information has not been released, but in time it is likely we will know more. We need to be patient and trust someone who is clearly upholding the highest of ethical values.


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