New Mueller mystery: Why was no one charged for tampering with Flynn?


Who tried to flip Michael Flynn? A court filing yesterday from Robert Mueller’s special counsel office revealed a heretofore unknown set of contacts between the former national security adviser and “people linked” to the White House and Congress. Flynn himself alerted special counsel investigators to these potential attempts to tamper with him, the filings declare in Flynn’s sentencing recommendation:

Former national security adviser Michael Flynn told investigators that people linked to the Trump administration and Congress reached out to him in an effort to interfere in the Russia probe, according to newly-unredacted court papers filed Thursday.

The court filing from special counsel Robert Mueller is believed to mark the first public acknowledgement that a person connected to Capitol Hill was suspected of engaging in an attempt to impede the investigation into Russian election interference.

“The defendant informed the government of multiple instances, both before and after his guilty plea, where either he or his attorneys received communications from persons connected to the Administration or Congress that could’ve affected both his willingness to cooperate and the completeness of that cooperation,” the court papers say.

Flynn even provided a voicemail recording of one such communication, the court papers say.

Witness tampering is a major felony. Just ask Roger Stone, who faces one such charge in his indictment from Mueller’s office. But that raises a curious question, too. Mueller, like most prosecutors, would normally apply that law with vigor to anyone attempting to undermine an investigation or prosecution, just as Mueller vigorously pursued obstruction of justice charges against Flynn himself and George Papadopoulos. So why didn’t Mueller charge the people who tried to flip Flynn?

One such instance does appear in the Mueller report — the voicemail incident, actually, which was therefore already known. Mueller declined to conclude that it was an obstructive act, likely because it was a communication between attorneys that didn’t involve Donald Trump directly. A lawyer for Trump left the voicemail for one of Flynn’s attorneys expressing Trump’s “warm feelings” but also concern that there might be a “national security issue”:

In late November 2017, Flynn began to cooperate with this Office. On November 22, 2017, Flynn withdrew from a joint defense agreement he had with the President.833 Flynn’s counsel told the President’s personal counsel and counsel for the White House that Flynn could no longer have confidential communications with the White House or the President.834 Later that night, the President’s personal counsel left a voicemail for Flynn’s counsel that said:

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains …. 835

On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal counsel to acknowledge receipt of the voicemail.836 Flynn’s attorneys reiterated that they were no longer in a position to share information under any sort of privilege.837 According to Flynn’s attorneys, the President’s personal counsel was indignant and vocal in his disagreement.838 The President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s hostility towards the President and that he planned to inform his client of that interpretation.839 Flynn’s attorneys understood that statement to be an attempt to make them reconsider their position because the President’s personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President.

Is a communication between attorneys over a withdrawal from a joint defense agreement witness tampering? If so, then a not-insignificant number of attorneys might be at risk of prosecution. Mueller wasn’t making that argument anyway; it was part of his argument on obstructive behavior by Trump, and it wasn’t one of his strongest arguments either. The theory was that Trump ordered his attorneys to deliver a wink-wink, nudge-nudge reminder of the value of his “warm feelings,” but Mueller never makes a case that this was anything other than a negotiation between attorneys who had worked together previously on a joint defense.

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As noted, however, that incident had already been revealed. What about the tampering attempt(s) by one or more people connected to Congress? Politico’s Kyle Cheney notes that Mueller’s “report is silent on any of those efforts arising from Capitol Hill.” That seems very curious indeed; if it was important enough to warrant alleging in a court filing, why not include it in the report too? Why not charge those who attempted to tamper? Democrats are wondering that too, claiming that the omission bolsters their argument that the report isn’t enough for their own investigations. They will use that to argue that the Department of Justice has to turn over all of Mueller’s underlying documentation and evidence.

The likeliest explanation is that none of these alleged attempts at tampering reached a level that could be charged, let alone prosecuted. Mueller, whose institutional roots at the DoJ run deep, would not have included derogatory information on others absent an indictment. (Many argue that Mueller should have applied that principle to Volume II, and James Comey might still be FBI director had he followed those standards.) If they weren’t serious enough to pursue and involved people extraneous to the core investigation, Mueller would have left them out of his report.

Besides, the purpose of yesterday’s filings wasn’t to issue an addendum to the Mueller report. The filings detail a high level of cooperation from Flynn in order to justify a light sentence from the court on his conviction. It’s a statement of Flynn’s value to Mueller, not a hint of more prosecutions to come or of indictable actions at all. This seems like a tempest in a teapot for everyone but Flynn, who should get a very light sentence in the end.

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