The Good, The Bad, and The Ugly Of The Flynn Plea

by | Dec 4, 2017


Below is my column on the Flynn plea agreement and its potential significance to the Russian investigation. One development is that President Donald Trump is now denying that he ever told Director James Comey to let Flynn go. This follows a highly damaging tweet that a Trump lawyer now says was his sloppy mistake. It is another tweet gone awry for the Trump White House.

Here is the column:

The plea agreement of Michael Flynn, the former White House national security adviser, is a case of the the good, the bad and the ugly for the Trump administration. It is an undeniably significant, though not unexpected, development in the Russia investigation. Flynn was always the most exposed of the high-ranking Trump officials and he lacked a clear defense on some of the allegations regarding his work as a foreign agent. In the famous Western “The Good, The Bad, and The Ugly,” Clint Eastwood’s character Blondie explained the difference between a man with a defense and no defense: “You see, in this world there’s two kinds of people, my friend, those with loaded guns and those who dig. You dig.” Flynn had to dig for a plea but the question is whether he presents a clear and present danger to the Trump inner circle. That is far less clear.

The good

The coverage of the plea was immediately breathless and a bit jubilant. New York defense attorney Gerald Lefcourt announced, “It’s the beginning of the end.” CNN’s legal analyst Susan Hennessey called the charges the “slam dunk” that everyone is looking for. If so, the Russian investigation has experienced a serious downgrading. This investigation began with an allegation of criminal acts of collusion with the Russians to influence the 2016 presidential election. This is a single count of making a false statement not a count of conspiracy or computer hacking or bribery connected to the Russians.

For Flynn, the one count of perjury was a good deal given his failure to register as a foreign agent in working for Turkey and assorted allegations of false or misleading statements. Moreover, Mueller’s people had Flynn’s son, Michael Jr., who served as his chief of staff, as leverage against him. However, for the White House, this may also have a good aspect. This is a relatively confined allegation that (like former Trump campaign manager Paul Manafort’s alleged crimes) is centered on the actions of Flynn, not the president or his family. Washington insiders are often nailed not for the underlying scandal but their response to it.

Flynn could well offer damaging information against higher figures, from Trump son-in-law Jared Kushner to the president himself. However, there is nothing in this indictment that offers serious support for the allegation of collusion with the Russians. Flynn lied on four occasions about conversations related to national security issues related to both Russia and Israel, including a conversation with then Russian Ambassador Sergey Kislyak in a conversation with the FBI. The indictment indicates that Flynn discussed sanctions with Kislyak, a fact that not only contradicts his statement to the FBI but to Vice President Mike Pence. However, the White House can note that Flynn also misrepresented the meeting to the vice president and the Trump administration.

Moreover, the interest of Kislyak in determining the position of the new administration on sanctions is not unheard of in Washington, or necessarily untoward to raise with one of the incoming national security advisers. Ambassadors are supposed to seek changes in policies and often seek to influence officials in the early stages of administrations before policies are established. Flynn’s suggestion that the Russians wait as the Trump administration unfolded its new policies is a fairly standard response of an incoming official.

Additionally, the false statements concern the discussion of an upcoming United Nations Security Council vote on whether to condemn Israel’s building of settlements, a matter entirely unrelated to the Russian investigation and a meeting reportedly prompted by requests from Israeli Prime Minister Benjamin Netanyahu. Finally, the White House will point out that Flynn resigned Feb. 13 after being confronted over his misleading statements. He lasted only 24 days before being shown the door by the Trump administration.

The bad

The bad in this plea is equally obvious. While the indictment of former Trump campaign chairman Manafort was comfortably removed from either the campaign or the White House, this indictment involves a high-ranking Trump aide and concerns the Russian investigation. Flynn puts the special counsel’s investigation right next to the president in terms of a secured criminal plea. The ugliest element is the timing. The lie told by Flynn occurred on Jan. 24, four days after the start of the Trump administration. This was not some casual conversation. Flynn clearly knew the risks of lying in an unfolding scandal over Russian contacts.

It is also bad news to have a high-ranking former aide effectively under the control of the special counsel. Plea deals usually involve the waiver of other possible charges in exchange for cooperation. Flynn is a “matinee” defendant. There is little reason for prosecutors to cut a deal unless they believe that the case would be hard to prove or, more likely, the defendant has deliverables to offer the prosecution.

The ugly

The ugly context of the Flynn plea is also the direct work of President Trump himself. It is doubtful that there would have been any special counsel investigation had Trump not fired former FBI Director James Comey when he did. Moreover, the investigation has been fueled by Trump’s ill-considered and inappropriate statement to Comey that “I hope you can see your way clear to letting this go, to letting Flynn go.” The pressure on Comey resulted in his creating the now famous memos sitting in Robert Mueller’s office. To make matters worse, Trump pressured cabinet members and, as reported this week, ranking members of Congress to force an end to the Russian investigation.

Trump made the situation far worse for Flynn and himself with these overtures. He created the very narrative to be used against him in the event of a plea of this kind. It is now fair game for people to ask if Flynn lied to cover up more than an awkward meeting and whether Trump’s unprecedented efforts on Flynn’s behalf reflect deeper concerns over information in Flynn’s possession.

In the end, these are always sad moments. While many enjoy watching public figures fall from great heights, it is an ignoble and painful moment for a man who achieved much in the public interest. To paraphrase what Clint Eastwood’s Blondie said in the film, that is the nature of scandals and war alike, in which “so many men [are] wasted so badly.”

Reprinted with permission from


  • Jonathan Turley

    Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.

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