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The Tragedy of Michael Flynn: Part Two

It has emerged that Lieutenant General Michael Flynn’s guilty plea was not as much of a profession of guilt as it was a protection policy for the retired lieutenant general and his family.

Michael Flynn (POLITICO)

About a week after Flynn entered his plea deal, Foreign Policy published a Lawfare piece that noted,

The reason is the plea’s narrowness compared to the astonishing swath of public allegations of potentially criminal conduct on Flynn’s part. Reputable newspapers had reported Flynn’s failure to register under the Foreign Agents Registration Act, failures to disclose foreign contacts as required on his security clearance forms, large transactions with foreign actors, involvement in a strange influence-peddling scheme over nuclear plants, and even involvement in a kidnapping plot. Press accounts have indicated that Flynn’s son Michael Flynn Jr. also had exposure and that protecting his son was a priority for the elder Flynn. Yet the plea itself was limited. It was only one count for a set of false statements to the FBI. (Hennessey & Wittes, 2017; emphasis added.)

The essential detail is that Flynn was aiming to protect his son, a “a priority for the elder Flynn.” Flynn’s preservative instincts may have pushed him to accept responsibility for a crime he did not commit or believe he had committed.

The authors also suggest that Flynn was motivated by his desire to avoid a litany of legal prosecutions on a potpourri of charges. This is supported by other reporting on the special-counsel prosecutions, which found that Special Counsel Robert Mueller, among other things, “appear[ed] to be relying on an obscure 218-year-old law [the Logan Act] to apply pressure to officials in pursuit of a broader investigation into Russia's interference in the presidential election” (Scannell, 2017).

Later in the Foreign Policy article, the authors include a quote from former U.S. Attorney Preet Bharara, a Trump critic. Bharara said, “I tend not to think it’s the case that [Mueller] just wiped the slate clean with Michael Flynn … I just don’t buy it. … There’s a decent reason for thinking that [false statements are] all that Mueller has at this point” (Hennessey & Wittes, 2017). Bharara’s sentiments are logical: If Flynn was engaged in a litany of crimes, it would defy common sense for Mueller to pursue Flynn on the least serious charge available.

If Bharara is correct, Flynn made his guilty plea based on the threat of prosecution on miscellaneous charges that would have floundered in a court of law. This is legitimate prosecutorial practice, but it challenges the narrative that Flynn must be guilty because he pled guilty.

This is the second part of a six-part series on the investigation and prosecution of Lieutenant General Michael Flynn, written by Declan M. Hurley. This segment is entitled "Was Flynn’s Guilty Plea Spurious?" Hurley's source list (to which the parenthetical citations correspond) can be found here: