As Impeachment Talk Grows, Have Trump's Former Top Aides Already Cut Deals With Federal Prosecutors?

Are President Trump’s former top campaign aides already cooperating with federal investigators looking into collusion with Russia in the 2016 election, and possibly, Trump’s private business deals with wealthy Russians?

There are telling clues that former National Security Adviser Michael Flynn and Trump campaign manager Paul Manafort are involved in the dicey dance of seeking cooperation agreements with various federal law enforcement agencies—or have already made a deal to testify in closed proceedings. That’s the conclusion of investigative reporters who have exposed foreign agents and a career public defender with long experience negotiating deals to avoid federal indictments.

“It’s a more than reasonable question, whether Paul Manafort, who was on Moscow’s payroll and that of the pro-Moscow Ukrainian government before it was overthrown, is cooperating with federal investigators,” said David Cay Johnston, a Trump biographer and editor of DCReport.org. “Because he has not registered as a foreign agent, a law that has incredibly tough tools that could strip him of every dollar he has—as well as prison. And it’s significant that Michael Flynn has asked for immunity in return for telling his story.”

“They could already have a plea,” said Miles Gerety, a career death penalty public defender now in private practice including negotiating pleas with federal prosecutors. “They [the Justice Department and other agencies] could seal it for a period of time. A lot of stuff could have already happened.”  

The prospect that some of Trump’s top aides may have already turned adds a twist to the dizzying disclosures that have Washington talking about impeachment, tied to Trump’s apparent obstruction of justice by pressing former FBI director James Comey to drop the Flynn investigation. The drama entered a new phase Wednesday with the Justice Department's announcement it was appointing an independent special counsel, former FBI director Robert Mueller, to take over the investigation.

Flynn was the Trump campaign’s top foreign policy expert and was appointed national security adviser. In mid-February, Trump was forced to dismiss him because Flynn’s apparent ties to Russia exposed him to blackmail and appeared to break federal laws, according to Sally Yates, the acting U.S. attorney general who ran the DOJ until late January, when Trump fired her. 

There’s a timeline that lays a backdrop for Flynn and Manafort’s possible cooperation. The Obama administration had warned Trump’s transition team not to trust Flynn. After the Trump team ignored Obama's warning, Yates went to the White House on January 26 to tell the president’s counsel about Flynn. She was fired on January 30 for not implementing Trump's immigration executive orders—at least, that was the publicly given reason. Jeff Sessions was not sworn in as attorney general until February 9, meaning those at the DOJ and other intelligence agencies continued their investigations. Trump fired Flynn on February 14. The meeting where Comey took notes of Trump urging him to drop the Flynn investigation because “he is a good guy” was a day later, February 15.

Comey would know about all the Trump-Russia investigations. His memos of meetings with Trump weren’t just careful. They came amid a leadership change at DOJ and an ongoing investigation in Trump’s campaign, team and possibly business deals with many Russian oligarch partners. Comey protected himself and the FBI by sharing his notes with senior colleagues, and one leaked to the New York Times.

“Mr. Comey shared the existence of the [February 15] memo with senior FBI officials and close associates,” the Times reported. “The New York Times has not viewed a copy of the memo, which is unclassified, but one of Mr. Comey’s associates read parts of it to a Times reporter.” This is where the obstruction of justice evidence comes from, fueling speculation about impeachment.

What this timeline means is that federal agencies were aggressively investigating Trump-Russian ties, as Yates confirmed to CNN this week. When asked by Anderson Cooper “whether she agreed with the White House line that Flynn was dismissed over a ‘trust issue’ rather than a legal one, she said, ‘I don't know how the White House reached the conclusion that there was no legal issue. It certainly wasn't from my discussion with them.’” She said, “There is certainly a criminal statute that was implicated by his conduct.”

Flynn then tried to pull an Oliver North (the military aide in Reagan’s White House who oversaw the arms-for-hostage deal with Iran and testified before Congress after receiving immunity). The Senate Intelligence Committee rejected that offer from Flynn on March 31, saying it was too soon and Congress had to coordinate with the Justice Department. According to Miles Gerety, that would have sent Flynn’s attorneys into a deal-seeking mode with federal agencies.

“What did Flynn’s lawyers do after Congress dismissed his offer?” he said. “You try to lock it up. You try to beat an indictment. You do a proffer agreement. You do that to minimize your client’s exposure. You try to get a 5K letter [from prosecutors] for meaningful cooperation. Any lawyer will do this.”

Flynn’s lawyers already told Congress he has a story he wants to tell. Gerety explained what the proffer negotiations are like. “You’re meeting with an assistant U.S. attorney and a bunch of investigators—FBI, CIA, NSA, Treasury Department criminal division. You pass around an agreement [describing what you will tell the government],” he said. “You sign in exchange for a lesser charge. Your deal is off if you lie. They decide if you are lying. You better be ready to spill your guts. Then they start asking questions. You are shocked by what they know. They know a lot.” 

The reason Flynn was seeking immunity from Congress is also to derail a federal grand jury investigation, which is a different process and very unpredictable, Gerety said. That process can issue subpoenas and draft indictments that various federal investigative arms aren’t able to do. Federal judges overseeing grand juries will look at everything, he said, and almost never dismiss indictments.

James Henry, a corporate lawyer-turned-financial investigative reporter who has been investigating Trump’s money laundering deals with Russians, said Comey’s recent congressional testimony confirmed that grand juries were active.   

“Comey testified a lot,” Henry said. “He mentioned in response to the senator from Hawaii that he was in touch with two prosecutorial units, one was in the FBI, internal security. They don’t have the power to empanel a grand jury directly. They need to work through a U.S. attorney. And he reported that he was in touch with the U.S. prosecutor in the Eastern District of Virginia. Some people have said there is a grand jury sitting there and it has issued subpoenas. But this is not what I’ve been focusing on. I have been reporting on Trump’s money laundering.”

There are some hints that Manafort is cooperating, Johnston said.

“Under the Foreign Agents Registration Act will see if the government wants to go after you, they can strip you naked. If you think about it, the underlying theory is if you are trouble to the government under the FARA, you are a traitor or you’re an enemy of the state. They can take every dollar they can show Manafort got, even if he gave it to his children.”

In mid-April, it was reported that Flynn did register as a foreign agent and that Manafort would soon do so. But late last week, MSNBC’s Rachel Maddow reported that Manafort has not yet registered.

“The only reason not to do so that I can imagine is that it is part of the FBI saying, ‘We don’t want you to put all of the things in the public record that you would have to,’ or he’s cooperating with them, or he’s negotiating with them, and maybe he’s going to agree to plead guilty to something minor—assuming he’s in a position to give them something,” Johnston said. “Manafort should have stuff. He’s a savvy operator who’s been representing dictatorial regimes a long time, and he didn’t get there by being naive and stupid.”

“Those are the two most vulnerable people,” Johnston said, referring to Manafort and Flynn. (On Wednesday, Bloomberg reported that the New York State attorney general and the Manhattan district attorney have each opened probes of Manafort’s real estate deals.)

But the list of people who could turn on Trump doesn’t stop there, Johnston said. “There’s also [former business partner, convicted mobster and FBI informant] Felix Sater, who is in a position to give him up."

Johnston referred to a new piece at DCReports, which, he said, "has so many court cases and international cases involving people that Trump has touched upon. The notion that there’s nothing here—that’s absurd.”