Former U.S. Attorney Andrew McCarthy: The Flynn guilty plea is probably small potatoes

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Published by: Dan Calabrese on Monday December 04th, 2017

If there was a widespread scheme, Flynn would have had to plead guilty to the scheme to get the deal.

I know I cite Andrew McCarthy a lot. I do it because he not only has the experience to prove he knows his stuff, but he explains it extremely well.

And if you can show me a time he's been wrong, go ahead.

Contrary to the mouth-foaming we're getting from the media and pretty much everyone else who hates President Trump, former U.S. Attorney McCarthy doesn't think Mike Flynn's plea deal is likely to amount to much. Why? Simple: When a witness makes a deal to plead guilty in exchange for taking down the leaders of the bigger scheme, the witness usually has to plead guilty to being part of said scheme.

Flynn didn't do that, and in McCarthy's eyes that suggests this is not the dagger in Trump's heart everyone seems to want it to be:

Nevertheless, as I explained in connection with George Papadopoulos (who also pled guilty in Mueller’s investigation for lying to the FBI), when a prosecutor has a cooperator who was an accomplice in a major criminal scheme, the cooperator is made to plead guilty to the scheme. This is critical because it proves the existence of the scheme. In his guilty-plea allocution (the part of a plea proceeding in which the defendant admits what he did that makes him guilty), the accomplice explains the scheme and the actions taken by himself and his co-conspirators to carry it out. This goes a long way toward proving the case against all of the subjects of the investigation. 

That is not happening in Flynn’s situation. Instead, like Papadopoulos, he is being permitted to plead guilty to a mere process crime. A breaking report from ABC News indicates that Flynn is prepared to testify that Trump directed him to make contact with the Russians — initially to lay the groundwork for mutual efforts against ISIS in Syria. That, however, is exactly the sort of thing the incoming national-security adviser is supposed to do in a transition phase between administrations. If it were part of the basis for a “collusion” case arising out of Russia’s election meddling, then Flynn would not be pleading guilty to a process crime — he’d be pleading guilty to an espionage conspiracy. 

Understand: If Flynn’s conversations with the Russian ambassador had evinced the existence of a quid pro quo collusion arrangement — that the Trump administration would ease or eliminate sanctions on Russia as a payback for Russia’s cyber-espionage against the Hillary Clinton campaign and the Democratic party — it would have been completely appropriate, even urgently necessary, for the Obama Justice Department to investigate Flynn. But if that had happened, Mueller would not be permitting Flynn to settle the case with a single count of lying to FBI agents. Instead, we would be looking at a major conspiracy indictment, and Flynn would be made to plead to far more serious offenses if he wanted a deal — cooperation in exchange for sentencing leniency. 

To the contrary, for all the furor, we have a small-potatoes plea in Flynn’s case — just as we did in Papadopoulos’s case, despite extensive “collusion” evidence. Meanwhile, the only major case Mueller has brought, against former Trump-campaign chairman Paul Manafort and an associate, has nothing to do with the 2016 election. It is becoming increasingly palpable that, whatever “collusion” means, there was no actionable, conspiratorial complicity by the Trump campaign in the Kremlin’s machinations.

Not only that, but even the plea deal for Flynn sounds like a classic "process crime" in which the thing he lied about was not a crime, but he is in legal jeopardy because in the course of the investigation he didn't tell the truth about it. In other words, the FBI has apparently uncovered no underlying crime, but helped create crimes that took place only because the investigation produced the questioning that produced the lie.

Now, why would Flynn lie about something that wasn't illegal? It doesn't seem to make a lot of sense, but there was a lot of political heat being generated at the time over contacts with Russia, and you'll recall that what got Flynn fired as National Security Advisor was lying to Mike Pence about the same thing - even though the actual contact between Flynn and the Russians seemed unobjectionable. What he was afraid of was that what he did would be treated as wrongdoing even though it actually wasn't.

GDP growth for Obama's final year? A measly 1.6 percent

Now, while McCarthy's take is more informed than most of the people opining on this, he's not an insider in the investigation. It's possible that Mueller is behaving unconventionally here in an attempt to get Trump. There are a lot of reports that Flynn is going to "testify against Trump" - whatever that means - and the reports are inconsistent on the question of whether we're talking about actions by candidate Trump or President-elect Trump.

Much of the speculation says that after the election someone highly placed on the Trump team wanted Flynn to reach out to the Russians about delaying a vote on a UN resolution, possibly the one that backstabbed Israel in early January. If that's the case, you can argue whether it was the wisest thing for an incoming administration to do, but it's clearly not "collusion with Russia to influence the election," which is what this whole thing is supposed to be all about.

I don't know if McCarthy is right that this will turn out to be small potatoes. But he knows a lot more about this stuff than the people who are so convinced it's a bombshell. Do with that what you will.

Dan's new novel, BACKSTOP, is a story of spiritual warfare and baseball. Download it from Amazon here!