“It’s the first time the former head of a major US intelligence agency has faced criminal charges related to improper dealings with a hostile foreign power,” said Scott Horton, a lecturer at Columbia University and expert in international corruption.
But the court documents make clear that the investigation led by special counsel Robert Mueller is aiming even higher. The statement of offence that accompanied the plea agreement says that other top members of the transition team knew about Flynn’s contacts with the Russian ambassador, Sergey Kislyak, over a UN security council vote on Israeli settlements on 23 December 2016, and then after the Obama administration imposed sanctions on Russia on 28 December.
On both occasions, contrary to the repeated insistence by the White House that it knew nothing about the contacts, Flynn’s statement makes it apparent he talked to other senior members of the Trump transition team, then less than a month before entering the White House.
Flynn’s guilty plea raises the question of how much Donald Trump knew about his national security advisor’s contacts with Kislyak. If Trump was aware of those conversations, it throws a sharper light on his efforts to get the FBI director, James Comey, to drop the investigation of Flynn and subsequent firing of Comey and of Sally Yates, the acting attorney general, who had raised concerns about Flynn.
In the case of the exchange with Kislyak about sanctions, the offence statement says that Flynn talked to a senior transition official, “who was with other senior members of the presidential transition team at the Mar-a-Lago resort”. Those senior members responded, through the official, that they did not want an escalation, which Flynn passed back to Kislyak and then reported back to “senior members” of the transition team. It leaves no doubt that several top officials in the administration-in-waiting knew all about the contacts over a top foreign policy issue.
When it came to the discussions with Kislyak about the UN security council vote on a resolution condemning Israeli settlements, the statement of offence says that “a very senior member” of the transition team “directed Flynn to contact officials from foreign governments” about the vote to try to persuade them to either defeat or delay the vote.
“Mueller will continue to go up the chain, trying to get people at the next level to cooperate. It’s the standard game for prosecutors,” said Robert Costello, a former federal prosecutor. “Every prosecutor would do that – get as many people as possible to cooperate – before they take the ultimate action. Will they get there? I don’t know.”
By the time he had the conversations with Kislyak, Flynn had already been nominated to be the national security adviser in the new administration, one of the most powerful positions in the US, so very few people had the rank to give him directions.
“If you look at Mueller and his team’s prior practices, they don’t make these agreements unless there is a bigger fish the person can give up,” Horton said. “There are few people who are bigger fish than Flynn.”
A report on Fox News earlier this year said that Trump had been aware of Flynn’s contacts with Kislyak. A day after the Russian sanctions conversation, Trump tweeted that Vladimir Putin, the Russian president, was “very smart” for withholding reciprocal sanctions against the US. He wrote the tweet from his Florida resort, Mar-a-Lago. The tweet was retweeted by the Russian embassy.
Apart from Trump himself, the only person in the early White House team who may have outranked Flynn was Jared Kushner, the president’s son-in-law and adviser, who the president-elect designated as his top aide on Middle East policy. Bloomberg and the Washington Post both quoted unnamed officials identifying Kushner as the very senior official who ordered Flynn to canvas the security council.
Kushner is also reported to have taken an active role in lobbying security council members against the 23 December settlement vote, in which the Obama administration had decided to abstain as a means of sending a critical message to Israel.
What is particularly significant is that on both occasions, the Trump team were apparently seeking to thwart or mitigate the impact of the outgoing administration’s foreign policy on critical issues, which would be a violation of the Logan Act. That is a relatively obscure statute that is rarely prosecuted, although this appears a particularly severe example.
However, Mueller may have other potentially criminal acts in mind. Several administration officials said, on repeated occasions, that they were unaware of Flynn’s contacts with Kislyak, or indeed of any contacts between campaign or transition officials and Russian representatives. If they were part of the group at Mar-a-Lago or the senior transition team members Flynn talked to directly, and they repeated their denials to FBI investigators, as Flynn did, then they could also face charges for perjury and potentially obstruction of justice.
The other open question is whether Flynn’s contacts with Kislyak were part of a wider pattern of exchanges with Russian officials, that involved give and take, in other words collusion, which is at the heart of Mueller’s investigation and the cloud hanging over the Trump administration. In both cases outlined in the statement of offence, the Trump transition were asking for favours. It remains unclear from the court documents whether Moscow had already done anything explicitly for Trump during the campaign.
“This is a piece of a piece of a puzzle, and what we don’t have is what Flynn may have promised in return,” said Ryan Goodman, a law professor at New York University. “The question I have always had is: why would he feel the necessity to lie about the contents of his conversations?”
