Can Trump Survive Star Witness Michael Flynn?

There’s a real sense in which it is a crime to obstruct justice even if no underlining crime is ever proven, but it’s certainly a more serious thing to deliberately undermine an investigation if the crime that is the prime focus is discovered and prosecutable. For this reason, it matters a lot whether or not Michael Flynn is charged with criminal offenses because the president of the United States asked the director of the FBI to drop his inquiry into Flynn and then fired the director when he would not.

Were Michael Flynn to be cleared of all wrongdoing, we might not consider Trump’s interference a high crime or misdemeanor even if it is a crime of some sort. On the other hand, if it looks like Trump tried to prevent justice from being obtained for actual crimes, that’s obstruction however you want to define it.

Therefore, the worse things are for Flynn, the worse they will be for Trump. If he can say that he was right all along that Flynn is innocent and shouldn’t be harassed, that will benefit him politically and in the eyes of Congress. But if Flynn is slapped with a long list of indictments, it’s going to make Trump look like a co-conspirator. His best defense at that point will be that he is actually a dope and a fool rather than a witting participant in a series of criminal acts. And that’s not a great look for a president.

But, of course, there’s a third possibility that’s even worse for the president, and that seems to be what we’re about to see unfold.

Lawyers for Michael T. Flynn, President Trump’s former national security adviser, notified the president’s legal team in recent days that they could no longer discuss the special counsel’s investigation, according to four people involved in the case — an indication that Mr. Flynn is cooperating with prosecutors or negotiating a deal.

Mr. Flynn’s lawyers had been sharing information with Mr. Trump’s lawyers about the investigation by the special counsel, Robert S. Mueller III, who is examining whether anyone around Mr. Trump was involved in Russian efforts to undermine Hillary Clinton’s presidential campaign.

That agreement has been terminated, the four people said. Defense lawyers frequently share information during investigations, but they must stop when doing so would pose a conflict of interest. It is unethical for lawyers to work together when one client is cooperating with prosecutors and another is still under investigation.

The notification alone does not prove that Mr. Flynn is cooperating with Mr. Mueller. Some lawyers withdraw from information-sharing arrangements as soon as they begin negotiating with prosecutors. And such negotiations sometimes fall apart.

Still, the notification led Mr. Trump’s lawyers to believe that Mr. Flynn — who, along with his son, is seen as having significant criminal exposure — has, at the least, begun discussions with Mr. Mueller about cooperating.

Michael Flynn has so much criminal exposure it’s almost ridiculous, including things as potentially serious as conspiracy to kidnap, perjury, and obstruction of justice. He has to worry about those charges, plus a long list of problems with disclosure forms involving his lobbying work, background checks, and compliance with military rules and regulations. And he’s reportedly worried that his son will wind up with a lengthy jail term, as well. To significantly reduce all that exposure, he’s going to have to tell a pretty compelling story to Robert Mueller’s prosecutors.

It’s true that plea negotiations could still break down, but they’ve almost certainly begun. The chances are now very high that Flynn will be testifying against the president of the United States and that his testimony will be the basis for a criminal referral of some sort to Congress from the office of the special counsel.

This also has to be of concern to Paul Manafort and Rick Gates, because they’re missing the chance to be the first cooperating witnesses, and are therefore losing the opportunity to reduce the amount of time they’ll be spending in prison.

The floodgates could now open, but even if they don’t it’s beginning to look like a worst-case scenario for Trump. It would be hard enough to try to explain why he fired an FBI director for refusing to drop an investigation of a man now facing a dozen or more indictments. But if that man becomes the star witness against Trump, it will be impossible to defend against the central obstruction of justice charge.

Impeachment is by design a political process with a political definition of what constitutes a removable offense. For that reason, Trump can survive some pretty serious charges, just as Bill Clinton did in the late 1990s. But there are still limits, and a guilty Flynn presents a serious problem. A guilty testifying Flynn could be fatal.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.