The least-noticed sentence in Michael Flynn’s plea agreement with special counsel Robert Mueller may also be the most important one.
Section eight of the deal reached by Donald Trump’s former national security adviser in the inquiry into Russian meddling in the US election is entitled “cooperation”. It specifies that as well as answering questions and submitting to government-administered polygraph tests, Flynn’s cooperation “may include … participating in covert law enforcement activities”.
Long-time students of federal law enforcement practices agreed, speaking anonymously, that “covert law enforcement activities” likely refers to the possibility of wearing a concealed wire or recording telephone conversations with other potential suspects. It is not known whether Flynn has worn a wire at any time.
“If the other subjects of investigation have had any conversations with Flynn during the last few months, that phrase must have all of them shaking in their boots,” said John Flannery, a former federal prosecutor in the southern district of New York.
“The one who must be particularly terrified is [Trump son-in-law and adviser] Jared Kushner, if he spoke to the special counsel’s office without immunity about the very matter that is the subject of Flynn’s plea. I think he must be paralyzed if he talked to Flynn before or after the investigators debriefed him.”
Former FBI director James Comey has testified before Congress that before Trump fired him, the president asked him to end the investigation of Flynn.
Although the date when Flynn began to cooperate with Mueller’s investigation is not yet public, at least one prominent Republican donor was telling friends in July this year that Flynn was already doing so. At the very least, the terms of Flynn’s co-operation raise the possibility that he may have covertly recorded some of his conversations.
Flynn’s lawyer, Robert Kelner, did not respond to requests for comment about whether his client had worn a wire or had taped telephone conversations.
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Since there was no legal requirement for Mueller to include this information about covert law enforcement activities in the plea agreement, Flannery believes it was put there “to put the fear of God” into anyone who may have given the special counsel answers that conflict with Flynn’s information.
The main clue in the plea agreement about the importance of the information Flynn has already provided lies in the discrepancy between the maximum penalty for the crime he has admitted and the maximum sentence the special counsel has promised to recommend.
According to the document made public on Friday, Flynn could have been sentenced to as much as five years in prison and a $250,000 fine. As long as he cooperates in full with all of the special counsel’s requests, the document says the “estimated sentencing guidelines” range from zero to six months, with a possible fine of between $500 and $9,500. The proposed sentencing reduction also partly takes into account the fact Flynn has no criminal record.
“No prosecutor I know would agree to reducing a sentence that dramatically unless the witness had provided very significant information about at least one other target of his investigation,” Flannery said. “You wouldn’t get such a low sentence unless you had implicated a big target. The person that you’re lifting up allows you to sit on the ground.”
The plea agreement, dated 30 November 2017, requires Flynn to cooperate “fully, truthfully, completely and with this Office and other Federal, state and local law enforcement authorities identified by this Office in any and all matters as to which this Office deems the cooperation relevant”.
If Flynn refuses to cooperate fully, “the agreement will be considered breached by your client.” The agreement says any breach will have a serious impact on Flynn’s sentence.
Experts said it was notable Flynn pleaded guilty to a criminal information instead of being indicted by a grand jury. By avoiding the use of a grand jury, Mueller had the flexibility to reach an agreement with Flynn at any time. He also increased the chances that his negotiations would remain secret until he chose to make them public.