When Michael Flynn pleaded guilty to one count of lying to the FBI and agreed to cooperate with Special Counsel Robert Mueller’s investigation on Friday, many legal experts thought they knew what that meant.
“We know from public reports that Flynn has a ton of criminal exposure, and yet he’s pleading guilty to a relatively minor crime,” Savannah Law School professor Andy Wright told my colleague Sean Illing. “I’m confident Flynn is singing like a bird to Mueller.” (Eight other law professors made similar arguments to Illing.)
Not so sure: Preet Bharara, the former US attorney for the Southern District of New York who was fired by President Trump earlier this year.
On the latest episode of his podcast, “Stay Tuned With Preet,” Bharara says he isn’t convinced that Flynn has gotten “a sweetheart deal of a lifetime” in exchange for hugely important cooperation.
“I don’t know that I believe that,” Bharara said.
In particular, Bharara disputes the common argument that the relatively light charge against Flynn (one false statements count) clearly shows he must have agreed to provide especially valuable information to Mueller’s investigation. (Flynn’s clearly offering some information, but the question is just how important it will be.)
Bharara refers to his own experience supervising similar high-profile investigations and prosecutions. “When we had evidence against somebody and wanted them to flip, we made them plead guilty to every bad act that they had ever done,” Bharara said. “Especially if we were later gonna be alleging other people had engaged in that activity as well.”
Doing that, Bharara argues, makes a witness like Flynn more credible in court if he has to testify against someone else. “Otherwise, the only thing the jury will know for a fact about your witness is that he is an admitted, convicted liar,” he said.
So what does Bharara think could be going on? One possibility, he suggests, is that Mueller doesn’t have anything else on Flynn that might stand up in court: “People need to really consider the possibility that this might be it.”
But Bharara also suggests another scenario: that Mueller is “holding back on other charges to which Michael Flynn will plead guilty if and when they form the basis of charging some other folks.”
That is — certain potential charges against Flynn could implicate others in Trump’s orbit as well, and Mueller’s team just isn’t ready to make those charges yet (and might never be).
This case, of course, could be rather different than Bharara’s own past prosecutions. For one, Mueller’s potential endgame might be an impeachment referral rather than a high-profile court trial. Additionally, Mueller could be concerned about Trump’s pardon power — perhaps he’s holding off on some potential charges against Flynn so he could bring them later, in case of a pardon.
But since Bharara is experienced in this field — and no fan of Trump — it’s worth listening to his analysis for a more skeptical take on just how bad Flynn’s plea might be for the president. Check out the episode for more.