By James A. Gagliano
December 1, 2017

This morning’s news that the Trump administration’s former national security advisor Michael T. Flynn had agreed to plead guilty to one count of making a false statement, in the form of lying to the FBI, was not wholly unexpected.

The attendant media maelstrom that followed wasn’t much of a surprise either. We have long endured the breathless anticipation and dire predictions about the likely demise of those in Donald Trump’s inner circle as a means to assuage hurt feelings in the wake of Hillary Clinton’s shocking defeat in November of 2016.

Flynn’s guilty plea and reported cooperation with investigators is seen to be the penultimate act in the story of Russia, Russia, Russia. The final act would certainly, in liberal dreams across the nation, result in the president being led out of the Oval Office in handcuffs.

Not so fast.

The criminal information—which is a formal criminal charge that initiates a criminal proceeding in court—was filed in the United States District Court for the District of Columbia. The charges are related to two conversations that Flynn had with Russian Ambassador Sergey Kislyak during the president-elect’s transition period. It must be presumed that these conversations were conducted at the direction of the president-elect. There is nothing illegal or irregular about contacts with foreign governments during this timeframe. All incoming administrations are expected to begin to forge relationships in the international arena as feasible.

And yet, the “sins” that the general has been accused of, and subsequently pled guilty to, are more than mere peccadilloes. Flynn was charged with willingly and knowingly making false, fictitious, and fraudulent statements and representations to FBI agents. This a serious charge. Over the course of a quarter-century career in the FBI, I saw charges like this applied cautiously and only in circumstances where evidence was abundant and “intent” was easily provable.

He also lied to the vice president-elect about the sum and substance of his conversations with Kislyak. That helped earn him dismissal from the administration.

He then lied to the FBI. And that brings us to today’s plea deal.

If one of the conversation’s topics was the easing of Obama administration sanctions against the Russians for meddling in the 2016 election, this would certainly be imprudent and tawdry. But Flynn wasn’t charged with that—only with lying to the FBI about the conversation details.

The guilty plea goes beyond the money laundering conspiracy charges brought against former Trump campaign manager Paul J. Manafort, Jr. and his business associate, Rick Gates, and the plea deal struck with former Trump policy advisor George Papadopoulos, who like Flynn, was also charged with making false statements.

But is it the “smoking gun” so many have pronounced it to be?

In a word, no.

Will it buttress the argument that some of Trump’s associates are less than forthright, unscrupulous in their business dealings, and may have engaged in the practice of obstruction of justice?

Yes.

But will it ultimately lead back to the Oval Office—or the corner penthouse office at Trump Tower? And will it prove that the president knew of inappropriate contact between his transition team and the Kremlin and consciously conspired to cover it up in vibrant shades of Watergate?

If recent history be our guide, I will submit that, in all probability, it will not. That will fortify many on the right and deeply disappoint members of the #Resistance. But we have learned time and again during recent months that if something is leak-worthy in D.C., it will leak.

Sadly, much of the information related to the investigation has been leaked from the FBI, and its parent organization, the Department of Justice (DOJ). Former FBI director James B. Comey, Jr., himself, testified to the Senate Intelligence Committee back in June that he had orchestrated a leak of an FBI document to The New York Times.

While damning details about Flynn, Manafort, Carter Page, Donald Trump, Jr., Jared Kushner, et al have been leaked to the media, Trump, strangely, has appeared somewhat immune from the incriminating leaks.

If the special prosecution team had the goods, it is my belief that we would have been exposed to them by now. No matter how airtight Special Counsel head Robert Mueller is reputed to keep his investigations, too many details have been made available in the public domain. And no matter what side of the partisan divide you come down along, what lies in the balance is simply too important to both tribes.

Even if Flynn’s apparent cooperation with the Mueller team set up today’s guilty plea, let’s attempt to distill what, if anything, Flynn might have on the president. Being directed by a president-elect to speak with foreign agents like the Russian ambassador is certainly within any national security advisor’s scope of employment.

So, is it possible to foresee Trump charged with a violation of the Logan Act, a law drafted in 1799 that forbids private citizens from conferring with foreign governments that have a dispute with the United States? Possible, but highly unlikely.

 

To do so would set a very dangerous precedent and foist potential exposure upon recent administrations, as well.

Trump, for his part, has been very sanguine about the proceedings, even sharing with close associates that he believes the investigation will conclude by year’s end.

While reading tea leaves related to special prosecutor investigations is a fool’s errand, I will submit that I tend to think we’re closer to the investigation’s culmination than some would hope.

And, we might just have witnessed the largest fish to be ensnared in this most riveting political fishing expedition.

James A. Gagliano, a retired FBI Supervisory Special Agent, is a professor at St. John’s University and serves as a CNN Law Enforcement Analyst.

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