NBC News reports that Special Counsel Robert Mueller’s team now has sufficient evidence to bring charges against both Michael Flynn, President Trump’s former national security advisor, and Flynn’s son. This follows on the indictments of Paul Manafort, Trump’s one-time campaign manager, Rick Gates, a Trump campaign associate, and the deal reached with George Papadopoulos, a Trump foreign policy advisor.
It’s not surprising that Flynn is under the crosshairs of Mueller’s team. Flynn has always been a visible link between Trump and Russia, and Flynn’s aversion to telling the truth is why he no longer holds the position of national security advisor. What is surprising is how we know that investigators have sufficient evidence to prosecute Flynn.
According to NBC News, its information comes from not one, not two, but three different sources “familiar with the investigation.” Keep in mind that the number of people “familiar with the investigation” is quite limited. Congress and Mueller’s team are reportedly butting heads on the investigation, and CNN has reported that Mueller has “kept top lawmakers mostly out of the loop….” The Attorney General has recused himself from involvement in the special counsel’s probe and his very status as special counsel leaves him largely insulated from most DOJ oversight. Finally, consider that Mueller’s team has operated in almost complete secrecy to date. News of Papadopoulos’ arrest came as a surprise to the media and public even though it had occurred months before. News of Manafort’s and Gate’s impending prosecution only became known when the court got involved, and even then the identity and number of the indicted was unknown until Mueller allowed it to become public information.
The point is, very few people know anything at all about what Mueller’s team is doing, and Mueller’s team has shown zero signs of developing leaks since it formed. So when three separate sources confirm to NBC News that Mueller has enough evidence to prosecute Flynn and his son, it’s almost certain that those three people are on Mueller’s team and have direct knowledge of the investigation. And while it might be possible to believe that one person on Mueller’s team has decided to become a leaker, it’s beyond belief to think that three have suddenly chosen that path after months of total discipline.
All of this suggests that the Flynn leak is authorized by Mueller.
Why would Mueller want this information leaked to the media? And if he has enough to prosecute Flynn, then why isn’t he prosecuting Flynn? That isn’t known, but some reasonable guesses could be made. Those guesses start with a binary question: Has Flynn already flipped to work with Mueller?
Let’s start with the “Yes, Flynn has already flipped” branch of this inquiry. If Flynn flipped, then the leak is likely being made public for someone else’s consumption. In this case, Flynn already knows the FBI has sufficient evidence to prosecute him and he is actively working with the FBI to give them what they want. And what they want must be bigger than Flynn. It seems like a safe bet that in this case, the target is Trump or at least others close to him (Trump Jr. or Kushner, for example). Mueller may be hoping that the revelation of impending prosecution against Flynn and his son will spur someone to take some incriminating action, such as calling Flynn, with Mueller monitoring the entire act. Alternatively, Mueller may be working with Flynn already but believes that Flynn is not holding up his part of the bargain and the leak of possible prosecution against him (and his son) is designed to remind Flynn of just how serious this can get.
The second branch of the inquiry is the “No, Flynn has not flipped yet” view. In this case, the leak is likely being made for Flynn’s consumption to encourage him to begin cooperating. This makes particular sense given the inclusion of Flynn’s son in the leak. Flynn may be willing to suffer prosecution himself, but is he willing to allow his son to be prosecuted when Flynn’s cooperation could possibly avoid that conclusion? This branch of the inquiry seems to me to be the more likely of the two. When Mueller released the indictments against Manafort and Gates last week, three of the twelve charges brought in the indictment stuck out as not matching the rest. Counts 1-9 were all about financial crimes. Counts 10-12, however, were all about paperwork including specifically the FARA forms one must file to register as a foreign agent. These counts did not need to be brought together with the financial crimes, so why were they? Likely to send a message to others who had also failed to file appropriate paperwork. And who do we know who failed to file a FARA to register as a foreign agent (for Turkey) and likely made false statements in his FARA once he finally submitted it long after the fact? Michael Flynn. If Mueller was sending Flynn a message about his vulnerability to prosecution related to his FARA in the Manafort/Gates indictment, then this leak suggests Flynn did not respond with the cooperation that Mueller wanted. After a week, Mueller has upped the ante and is overtly threatening Flynn and his son with prosecution.
Whichever of these two paths one chooses to believe is correct, in some respects they both lead to the same conclusion. Flynn is not the ultimate target of Mueller’s investigation. Flynn is a pawn being used by Mueller to get to the actual target- someone more important and powerful than Flynn himself. Flynn is already a very high level individual to be involved in this process. It’s extremely unusual, to say the least, to have a former national security advisor to the president subjected to prosecution for collusion with a foreign power. So if Flynn is not the target, it certainly suggests that President Trump himself is.
This conclusion is consistent with other information we have seen in recent weeks. Trump has a habit of escalating his attacks on others right as he’s about to get hit, and in fact we’ve seen a dramatic increase in Trump’s attacks on Clinton and Comey in recent weeks. We know that Mueller is looking into Trump’s role in drafting Trump Jr.’s false statement about the Trump Tower meeting to get Russian dirt on Clinton. We’ve seen Sessions squirm anew in testimony on the Hill and Trump develop a sudden case of forgetfulness just a week after praising his own all time “great memories.” And we have recently learned that Mueller is focusing on Kushner’s role in firing Comey. It’s not hard to see where this is going.
Mueller’s team has been at this for months. That the investigation appears to be centering increasingly on Trump himself suggests that Mueller believes there is more than mere smoke to the Russia allegations. Trump’s fate may now rest with scurrilous people like Manafort and Flynn as he hopes they choose loyalty to Trump over their own self-interests.