Obstruction of Justice in the Mueller Report: Michael Flynn

During the 2016 presidential campaign, retired General Michael Flynn was one of Donald Trump’s regular campaign surrogates, to the extent that Trump considered him for the Vice Presidency. Flynn frequently spoke at Trump campaign rallies and appeared on television to speak for the campaign.

Flynn was, at one point, a highly regarded and highly respected military officer. He shaped US counter-insurgency and counter-terrorism strategy in Iraq and Afghanistan wars, eventually rising to become Director of the Defense Intelligence Agency in 2012.

But Flynn retired in 2014 amidst controversy over his job performance and reports of clashes with the Obama White House. After leaving government service, Flynn became an even-more controversial figure, tweeting, among other things, that Islam was a “cancer” and that “fear of Muslims is RATIONAL.”

After winning the 2016 election, the President-Elect named Flynn his National Security Advisor. However, Flynn would resign after only 24 days, making him the shortest-tenured National Security Advisor in the nation’s history. The story of Flynn’s resignation, the criminal charges that prompted it and the President’s behavior toward the investigation of his former advisor play a significant role in the recently released Mueller Report.

In the second story in our ongoing examination of obstruction of justice in the Mueller Report, American Legal News is looking at Michael Flynn – specifically, at how the President of the United States attempted to influence the investigation into the controversial general.

Flynn’s Crimes

Shortly after the election, President Barack Obama met with Trump – the meeting between the sitting President and the President-Elect had become a tradition designed to emphasize the continuity of the American government and the peaceful transition of power. During that meeting, President Obama urged his successor not to give Flynn a job. That view was shared by some of the President-Elect’s own allies, including New Jersey Governor Chris Christie.

Trump chose not to listen to this advice and made Flynn his National Security Advisor. Flynn’s tenure was short and rocky.

Flynn’s legal woes were – and are – multi-faceted. Most troubling was a call Flynn had with Russian Ambassador Sergey Kislyak on December 29, 2016 – after the election, but before Trump’s inauguration, a period during which Flynn had no governmental position and thus no authority to conduct foreign policy for the United States. The call came after the Obama Administration had announced retaliation for Russia’s interference in the 2016 election. Trump would later fire Flynn after published reports made clear Flynn had misled other administration officials about the call.

Flynn was also under investigation for lobbying on behalf of Turkey without registering as a foreign agent, as required by federal law.

Flynn would later acknowledge that he had asked Kislyak to refrain from “escalating the situation” in response to the Obama Administration’s sanctions. That acknowledgment didn’t come until December 2017, when he pleaded guilty to a single count of knowingly making false statements to FBI agents, a charge brought by Special Counsel Robert Mueller. It was announced at the time of his plea that Flynn was cooperating with the Russia probe.

Obstruction of Justice, Relating to the Flynn Investigation

Michael Flynn appears frequently in the second volume of Mueller’s Report, which is dedicated to the question of obstruction of justice. Specifically, Mueller’s analysis of the President’s conduct with regards to the Flynn investigation can be found in sections B and J of the second volume.

As we discussed in the first entry in this series, the federal obstruction of justice statutes require three elements: an obstructive act, a “nexus” between the act and an official proceeding and corrupt intent. As Quinta Jurecic chronicles in her invaluable obstruction of justice “heat map,” Trump’s behavior toward the Flynn investigation is deeply problematic, at best.

The day after he fired Flynn, the President held a meeting with then-FBI Director James Comey. The President dismissed everyone else in the room and spoke with Comey alone. Comey later testified that the President told him Flynn was a “good guy.” According to Comey, the President told him, “I hope you can see your way to letting this go, letting Flynn go.” While Comey did not pledge to end the investigation, he later said he regarded the President’s statement as a directive.

According to the Mueller Report, the President then attempted to have Deputy National Security Advisor K.T. McFarland draft an e-mail stating that Trump did not direct Flynn to speak to Ambassador Kislyak about sanctions. McFarland was uncomfortable with the order and did not write the memo.

In its analysis of Trump’s behavior toward the Flynn investigation, the Mueller Report makes clear it finds Comey’s account credible, which is an important element of the “obstructive act” element of the obstruction of justice analysis. And the report’s authors also make clear that Trump had been informed Flynn was being interviewed by the FBI and faced charges of lying to FBI agents, which establishes the “nexus” between the obstructive act and an official proceeding.

However, the Special Counsel said the evidence was inconclusive as to the question of the President’s potential “corrupt intent.” But the Mueller Report does say that the evidence establishes the President “connected the Flynn investigation to the FBI’s broader Russia investigation.”

Section J, which examines potentially tampering behavior toward Flynn, Paul Manafort and an individual whose name is redacted, is slightly more positive for the President. It chronicles public statements the President made effusively praising Flynn, as well as the President’s directive to Chief of Staff Reince Priebus to tell Flynn to “stand strong” and to explain that the President still “cared about him.”

After Flynn began cooperating with the Special Counsel, his attorneys told the White House counsel and the President’s personal lawyers that Flynn was withdrawing from a joint defense agreement with the President. The President’s attorneys reached out to Flynn’s representatives with a message that Flynn’s attorneys interpreted as an attempt to convince the disgraced former general to re-join the joint defense agreement.

However, the Special Counsel could not determine if the President knew about the message his attorneys delivered to Flynn, which made it impossible to determine if the President had committed an obstructive act. The same held true for the third element of the obstruction analysis, as the Special Counsel could not say whether the President had corrupt intent in his actions.

There was, however, a clear nexus between the President’s actions and an official proceeding.