5 Possible Reasons Why Michael Flynn Is Now Turning Over Documents
Flynn's decision to cooperate is fraught with peril, and it's unlikely he's doing it without a good reason.
Gen. Michael Flynn (Photo by the Defense Department via Wikimedia)
When the news broke last evening that disgraced National Security Advisor Michael Flynn had reversed course and decided that he will produce some documents to the Senate Intelligence Committee, one has to wonder: what happened? Just a couple of weeks earlier, Senator Richard Burr was telling us that Flynn had decided to ignore the congressional subpoena sent his way and roll the dice with a contempt charge.
While Burr walked back this claim hours later, it certainly sounded as though Flynn would be making the right decision to blow off the Senate. While Flynn and his attorney, Covington’s Robert Kelner, initially sought immunity from the Senate panel — and were denied — once Robert Mueller entered the fray and signaled future criminal prosecutions, the equation changed. Oliver North leveraged his congressional immunity into overturning his conviction, but that nearly three decade old precedent from a split panel rested on a mushy determination that North’s congressional testimony “tainted” the criminal prosecution. One imagines that a hypothetical Mueller prosecution could sway a court today that he reached an indictment independently — that’s what can happen when a few decades of Supreme Court precedents pile up restricting the avenues available to defendants to challenge their convictions.
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So just what’s going on here? As our own Justin Dillon notes, “in my book, people usually either fight or cave. This is an odd middle ground.” Let’s consider the possibilities here:
A) Flynn and the Senate have negotiated a limited document production acceptable to both sides: NBC’s “sources” say that the Senate narrowed its document requests, meaning this is what passes for the official line. And maybe that’s all that happened, but short of narrowing the requests to the point of irrelevance, there’s no good reason for Flynn to take the risk — especially because it blunts the “tainted” argument down the road if the Senate’s only getting some tangential material. And if this were the whole story, it would cast grave doubts on the seriousness of Burr’s investigation. If a guy fights for immunity, then (reportedly) flat refuses to cooperate when he doesn’t get it, and then after narrowing the requests says, “oh sure, those documents are no problem!” it should signal that maybe there’s a deficiency in those requests.
B) Flynn has secured immunity from criminal prosecution: This would explain why Flynn would suddenly feel comfortable turning over documents without going through the song and dance of a production privilege fight. But Mueller just got his job and it’s highly unlikely he’s in a position to be handing out immunity yet.
C) Someone showed him that it doesn’t matter, you’re screwed either way: Even if Mueller’s investigation is young, the government has had months to compile evidence about Flynn. Even if there’s no immunity deal on the table, maybe the government laid out the bare bones of its case and managed to convince Flynn that there’s no way out but to be as cooperative as possible with as many authorities as possible and start planning for leniency on the back end.
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D) He’s building an informal case for immunity/leniency and doesn’t want anything distracting from it: Have you noticed that Jared Kushner and Michael Cohen are getting all the Russia attention right now? That’s got to be exactly where Flynn would that attention to stay. Now, I’m not saying that Flynn is the source stirring up the Kushner and Cohen furor, but it’s worth remembering the precise words Kelner used when he was fishing for congressional immunity:
General Flynn certainly has a story to tell, and he very much wants to tell it, should circumstances permit.
That sounds like a guy able to toss people under a bus and then throw it in reverse. And as soon as Flynn found himself in a pickle… all the attention shifted to newer, bigger fish. If there’s an effort to push the investigation beyond Flynn, then cooperating as narrowly as possible to keep from appearing recalcitrant would be the smart play.
E) He’s innocent: Obviously this is always an option.
But that seems, based on my read and the opinions I gathered overnight, to represent the universe of possible motivations right now. What we know for sure is that General Flynn is no longer seeking congressional immunity and seems unconcerned that anything he’s about to hand over will hurt him down the road.
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He’s too well counseled to be taking such steps haphazardly.
Earlier: Michael Flynn And The Lessons Of Oliver North
Michael Flynn Denied Immunity, Cue Sad Trombone Sound Effect
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
