Short Take: Flynn and FARA

A frequent accusation hurled at the Michael Flynn camp is that Flynn’s plea deal was a tremendous boon to him, because Flynn faced possible charges, or, in the words of Lawfare’s Ben Wittes, “massive criminal liability”, for failing to register as a foreign agent for Turkey, during the transition period, in violation of the Foreign Agents Registration Act (“FARA”).

This argument is absurd. For openers, almost nobody faces massive criminal liability under FARA. It has a five year statutory maximum and would, in Flynn's case, probably be scored under Section 2B1.1 of the Sentencing Guidelines. (This is because FARA has no Guideline section attached to it and 2B1.1, is "the most analogous" offense Guideline.) And no amount of monetary loss would be factored in. Thus, even a defendant in Flynn's shoes who went to trial and got convicted could easily receive a Guidelines range of 0-6 months. 

Second, it is not at all clear that Flynn was an agent of Turkey during the transition period or that he could have been successfully convicted as such pursuant to FARA. Flynn severed his ties with Turkey shortly after Trump won the election. His partner in Flynn Intel Group (Bijan Rafiekian) was tried and convicted in the Eastern District of Virginia for conspiring to violate FARA (by submitting a materially false FARA filing ) in relation to a transaction that Flynn himself participated in. (Indeed, the government's Statement of the Offense in U.S. v. Flynn included allegations of false statements by Flynn in connection with the very project at the heart of Rafiekian's case.) The highly respected trial judge, Anthony Trenga, however, threw out the jury's verdict after trial based on insufficient evidence, ruling that no rational juror could have found Flynn’s partner guilty. See U.S. v. Rafiekian Opinion Granting Rule 29 Motion. That ruling is currently being appealed by the DOJ at the Fourth Circuit.

Third, the DOJ itself told Judge Trenga that Flynn was not a co-conspirator with his Rafiekian. The DOJ tried to reverse its position on this point when Flynn moved to withdraw his DC plea, but Trenga was having none of it.

Thus, there is no indication that Flynn feared going to trial under 18 U.S.C. Section 1001 or FARA. His original lawyers didn't see a crime. Flynn had a good chance to win and the downside was small, which is quite rare in federal prosecutions. But the government threatened to charge Flynn's son. It’s as simple as that. Then the prosecutors left that key condition out of Flynn’s written plea agreement, so that this part of the deal wouldn’t necessarily have to be revealed as Giglio to future defendants who Flynn might be called to testify against. That's how the sausage is sometimes made in white collar cases. But let's not pretend anything other than his son's fate was at stake for General Flynn. Either a guilty plea or a guilty jury verdict would have been equally devastating for Flynn's reputation. 

(wisenberg)