​Mike Flynn's Flip - Mueller is Running an Obstruction of Justice Investigation

What does Mike Flynn’s plea bargain mean? That seems to depend on what side of the aisle, or what side of the #NeverTrump versus #GoTrump intraparty divide, you’re from.

For Democrats and Trump opponents in general, we’re one step from uncovering secret recordings or other evidence of Putin and Trump literally planning the 2016 elections strategy together. If you tend to be a Trump supporter - or at least neutral in the tribal Trump war - then Flynn has been charged with a process crime: lying to the FBI over whether he had any conversations/contacts with the Russian ambassador.

What evidence does Flynn possibly have that may come out in upholding his side of the plea bargain? The charges stem from meetings held during the transition period. That is, from after November 8, 2016 (election night of course) until just before Inauguration Day on January 20, 2017. This is not something illegal in and of itself. This is politicians (or soon to be in-power politicians) talking to each other, unless the specifics somehow rise to the level of some sort of treason, or the mostly-ignored and archaic Logan Act.

Did the incoming Reagan administration undermine Carter's Iran policy in late 80 and early 81? Leaving aside conspiracy theories about H.W. Bush whizzing over the Atlantic in Black Helicopters/Jets (that's some helicopter to make it across thousands of miles on a tank of gas) to secretly meet with the Iranians, there may very well have been high-level contacts between Reagan's transition team and the new radical regime in Iran. This happens a lot in transition periods. Unseemly? Yes. Illegal? Less clear.

The lying by Flynn, however, is a problem and was a problem back in January, especially for Vice President Pence - whose character is probably his biggest political asset - who had to do an about face after assuring voters on Sunday talk that there were no contacts with the Russians. Remember the look on Pence's face when he strode angrily into that meeting/press conference as Flynn fidgeted nervously in his seat?

Andrew McCarthy - who is a prosecutor it bears repeating - has a piece in National Review over how Mueller's charging Flynn with one charge of lying means that this is no longer a Russia collusion investigation. It is now a Trump impeachment investigation in which proving the obstruction of justice by Trump himself or his administration, is Special Counsel Mueller's main goal.

Like Scooter Libby, people may go to jail for not being forthcoming during FBI interviews, not for any underlying crime. The exhausting and intimidating nature of an "interview" can make slip ups like this all too easy. Think of Manafort being awakened by armed agents breaking into his home. But Flynn and Manafort are hardly innocents caught in the crossfire. They are both seasoned advisors and/or members of the Executive who both should have known better and who both seemed - at this point at least - to have placed high priority on doing business in unsavory situations that may also have been illegal. Manafort in the Ukraine, Flynn with Turkey's regime.

However, if this is indeed an investigation centered on obstruction of justice, proving that President Trump did indeed obstruct will not be easy for Mueller's team. It centers around the reasons for Trump's firing of FBI Director Comey and how they might relate to the Russia probe. Here's what Andrew McCarthy says in his article in National Review:

The FBI and the Justice Department are not a separate branch of their own; they are subordinates of the president delegated to exercise his power, not their own. Even on Comey's account, Trump did not order him to shut down the Flynn investigation, even though he could have. Trump could have ordered an end of the Russia counterintelligence investigation but he did not ... we can stipulate that these would have been sleazy things to do ... and still grasp that the president has the undeniable power to do them.

Similarly, the president had undeniable power to fire the FBI Director ... The point that even if the president hoped that cashiering Comey would derail an investigation he was addled by, it was wholly it was wholly in Trump's discretion to fire the Director.

If Mueller believes at some future point in the investigation's process that he has a case for obstruction of justice, the next and penultimate step would be for him to present his team's evidence to Congress and let them decide whether to initiate impeachment proceedings against the president. This means presenting the evidence to the House, who are unlikely to do so at this point.

Is Mueller going to wait until after the mid-term elections to present his evidence? McCarthy is right, this could be dangerous for President Trump. Let's hope for the sake of the constitution itself impeachment proceedings are not undertaken unless the underlying reasons are strong. Because impeachment itself is a political process, not a legal one, even if based on evidence.

And so far, there is zero evidence of collusion.

Posted by Keeley at December 5, 2017 9:02 PM
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Thanks for your analysis Keeley. As this investigation continues, we are reading daily of the unsavory and perhaps illegal, activities of both Mueller and Comey.

I am not one to predict, or dwell in, the future. I am pleased with all the President Trump has accomplished so far.

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