Why Robert Mueller Is Almost Certainly Holding Criminal Conspiracy Charges Over Michael FlynnPhoto by Mark Wilson/Getty Politics Features Michael Flynn
“The essence of conspiracy is the combination of minds in an unlawful purpose.” — The Supreme Court, Smith v. the United States
You don’t need access to private or classified information to put this all together. Reports available to the public for many months now suggest that it’s highly likely, and I’d say all but certain, that Special Counsel Robert Mueller has held charges of criminal conspiracy against the United States over General Mike Flynn. In order to prove conspiracy, you don’t need to prove much more than an agreement to commit a crime—and the evidence we have in the public domain of where Flynn’s head was leading up to the 2016 election indicates he was, indeed, doing crimes.
This is the first in a developing series of stories revolving around former GOP activist Peter Smith and his outreach to Russians during the final months of the campaign.
Here is a timeline that weaves these two narratives together:
Late July, 2016: Republican operative Peter Smith contacts a cybersecurity expert about vetting possible newfound Clinton emails. Smith tells the expert he was in close and ongoing contact with people at the top of the Trump campaign, particularly Flynn. A second cyber-security expert independently corroborated Smith’s claims: “I’m talking to Michael Flynn about this—if you find anything, can you let me know?”
July 27, 2016: Trump at a news conference asks Russia to find and release the allegedly missing Clinton emails.
Mid-August, 2016: The FBI apprises the Trump campaign that Russians will likely try to infiltrate its ranks, and that if they notice anything suspicious they should report it to the FBI.
August 17, 2016: Flynn accompanies Trump to his first intelligence briefing, where USIC officials inform them of Russia’s past and ongoing effort to commit hacking crimes targeting Democrats and the Clinton campaign.
September 2, 2016: Ditto with a second Intel briefing.
September 7, 2016: Peter Smith forms KLS Research, a group dedicated to exhuming the missing Clinton emails. The document says the company was formed in order to “avoid campaign reporting,” indicating it was ducking very real campaign ties, so neither side had to report financial or in-kind donations. As if this weren’t clear enough, Smith lists Flynn among the group’s campaign contacts.
Flynn was clearly a witting member of a conspiracy. And this is just the public information we have on it. Imagine what Mueller has.
Back to the Story at Hand: Flynn
We can reasonably reach our conclusion comparing just two reports, though recent peripheral stories reinforce and most likely intensify the allegations. Though it was reported last year that Flynn had agreed to cooperate with Mueller because the Special Counsel has charges hanging over Flynn and his son—Mike Flynn Jr.—those charges as reported include money laundering and lying to the FBI, but didn’t specifically mention charges related to what’s known as the “collusion” part of the investigation. Keep in mind, though, that Mueller’s team doesn’t leak. The leaks about the charges Flynn might be facing must come from Flynn’s side, which has an obvious interest in controlling the PR fallout. These leaks, like nearly any leak you’ll see about the Mueller investigation, are scripted by the parties under investigation.
Indeed, I’m probably not the first to connect these dots re: Flynn. If I am, then we’re all just a bunch of broken-brained goons beyond redemption. But here it is, simply put:
1. Flynn, an attendee of Trump’s first intelligence briefing as the GOP nominee, knew in August 2016 that the U.S. had evidence that the Russian government was behind the DNC attack, and that the Kremlin was carrying out an ongoing effort to destabilize the election. In a separate FBI briefing around that same time, the Trump team was also warned that Russians would try to infiltrate their campaign, and that if they detected any suspicious activity, they should contact the FBI.
2. Flynn, according to his associate Peter Smith, at minimum had knowledge — as reported in a Wall Street Journal story last year — that Smith was reaching out to Russians for Clinton’s emails, an outreach that continued through September. That is, weeks after the FBI and intelligence communities warned Flynn about what Russia was doing.
According to Eric York, a cyber-security expert who searched hacker forums on Mr. Smith’s behalf for people who might be able to access the emails, Smith said, “I’m talking to Michael Flynn about this—if you find anything, can you let me know?’”
Here I have to say that there’s obviously the chance Smith might have lied about his close connection to Flynn and Flynn Jr., perhaps for cachet, but why he would pick those two names—and especially Jr.—out of the many others he dropped is beyond me. Smith, who committed suicide before the Wall Street Journal piece was published, could obviously not be reached for comment for this article.
Putting those claims together, we can say that at minimum, Flynn knew U.S. intelligence had evidence (he’d even seen it in some form) of ongoing crimes against the country, and then after that he, at minimum, knew about a man who was making an effort that fit into those crimes. But even if Flynn didn’t know what Smith did after the briefing, Flynn also was legally obligated at that point to inform U.S. law enforcement. There is no evidence in the public record that Flynn did that, and that act of negligence—even if Flynn took no other action in committing the crime at any point—is itself an act furthering the crime. That’s covered under aiding and abetting—a statute that’s laid out very nicely on the Department of Justice’s website.
This would all seem to make Flynn a participant in a criminal conspiracy against the United States. Whether it’s actionable is another question, but we’ll walk through conspiracy law in a bit. First, a little more detail about Flynn’s circumstances.
NBC reported in September 2016 that “classified materials prepared for the first briefing and examined by NBC News showed U.S. officials had drawn ‘direct links’ between Vladimir Putin’s government and the recent hacks and e-mail leaks.” It was additionally reported that in that first briefing, Flynn behaved unprofessionally. As NBC put it:
Six current and former senior officials said they were aware of friction between retired Gen. Michael Flynn, one of the advisers Trump brought to the briefing, and the officials who conducted the briefing. Four sources with knowledge of the briefing — including two intelligence officials who spoke to people in the room — said Flynn repeatedly interrupted the briefers until New Jersey Gov. Chris Christie intervened. Two sources said Christie, the New Jersey governor and Trump adviser, verbally restrained Flynn — one saying Christie told Flynn to shut up, the other reporting he said, “Calm down.” Two other sources said Christie touched Flynn’s arm in an effort get him to calm down and let the officials continue.
It’s really anyone’s guess what part of that briefing would have upset Flynn so much!
Anyway, that went down August 17, 2016. (Trump campaign chairman Paul Manafort left the campaign two days later.) A few weeks later, September 2, Trump had his second intelligence briefing, which Flynn also attended.
Now, at this point we need to turn our attention back to that Wall Street Journal scoop. In late June 2017, the paper broke the news that long-time GOP activist Peter Smith had in the months leading up to the election, solicited hackers for Hillary Clinton’s missing personal emails. The 80-year-old Smith didn’t really know how the internet worked, but according to a cybersecurity expert he recruited to help verify the authenticity of the emails, Smith didn’t seem to care whether the hackers were Russian—even when directly confronted with that possibility. What’s more, Smith also felt cavalier enough to share that he was conducting the outreach on behalf of the campaign, specifically mentioning close ties to Mike Flynn and his son, Pizzagate fanboy Mike Flynn Jr.
Sometime in mid-September, Smith presented that same cybersecurity expert with a document detailing a company that Smith had set up as their vehicle for the project: “KLS Research” (members still unidentified), which Smith established as a Delaware LLC “to avoid campaign reporting.” That document listed under the “Trump Campaign” section, included a few senior campaign officials, like Steve Bannon, Kellyanne Conway, Sam Clovis, Lisa Nelson, and, yes Mike Flynn.
Bannon and Conway went on record to deny involvement in the KLS project, but Flynn didn’t deny. He refused to comment.
Thanks to a report last week from BuzzFeed, we now know that Smith might have paid a lot of money for those emails—something he’d denied to the Wall Street Journal. If Flynn knew about this, let alone had a hand in it, the charges escalate.
The Supreme Court nutshells the crime of conspiracy this way: “The essence of conspiracy is the combination of minds in an unlawful purpose.” So if two or more people agree to commit a crime, and they make any effort, successful or otherwise, to move that plan forward, they’ve committed the crime of conspiracy.
For example, it’s a crime to sell spleens on the black market, but there’s a separate crime of agreeing with others to sell spleens on the black market. That’s criminal conspiracy. You can be convicted of conspiracy even if you fail at your crime, which in Flynn’s case it appears Peter Smith might have (But we don’t know that, and the payment pattern seems to suggest an alternative). Additionally, it doesn’t matter whether you pull out of the conspiracy, because you’re guilty as long as you’ve taken any steps to set in motion your plan to break the law.
What’s more, according to the Supreme Court ruling in Smith vs. the United States, when one conspirator “join[s] forces to achieve collectively more evil than he could accomplish alone, [he] ties his fate to that of the group.” In other words, you’re criminally responsible not just for your own behavior, but that of your co-conspirators “in pursuit of their common plot.” This holds true even if that person never even takes part in any of it.
You can also be found guilty of conspiracy even if you’re not aware of what everyone involved in the conspiracy is doing.
All of this should make perfect sense to anyone who has seen a mob movie: Not everyone knows what everyone else is doing, either by necessity or by the nature of the crime or group. Conspiracy is an agreement to break the law, and any steps taken towards that end make you guilty. And when the conspiracy sprawls over a vast and cartoonishly incompetent organization such as the Trump campaign, it’s easy to see how many people could get wrapped up quickly and dumbly in a treasonous plot that takes on a life of its own—bigger than any one person would be capable of seeing. It’s easy to understand, then, why it’s so important to know what the President knew and when.
Further, “conspiracy” isn’t a single act frozen in time. For instance, it’s not just the actual point of sale when you run my credit card through your Square and then hand me that sweet, sweet human spleen I’ve been dreaming of all these lonely years. No, conspiracy is a “continuing offense,” and conspirators continue to break the law through, as the Supreme Court put it, “every moment of [the conspiracy’s] existence.”
This, you see, has particular relevance to Flynn’s case. And again, by extension, depending what Trump knew, to the president himself. In fact, you could make an argument that Trump was complicit in this ongoing conspiracy, thanks to his repeated use of information that he knew the government had evidence was obtained illegally. The longer the conspiracy runs, the more you rack up those charges. When, for instance, did Trump know about the Trump Tower meeting? I bet Manafort’s deputy Rick Gates knows: None other than Rudy Giuliani said Gates was in the June 7 scrum to prepare for the Trump Tower meeting. Gates has been cooperating with Mueller for close to a year now.
Now, if you find yourself saying that longstanding U.S. criminal law, which has been used for decades to bring down criminal syndicates and white-collar crooks, is unfair and should be changed because it threatens your “law and order” overlord Donald Trump, that’s a sign that a) you’re in a cult; and b) that cult is not America. Also, those Supreme Court passages defining conspiracy came from a unanimous decision—and that decision was written by none other than hyper-conservative Justice Antonin Scalia.
At the end of the day, it seems clear that it’s not just about Flynn’s lying to the FBI: Mueller is all but certainly holding criminal conspiracy charges over him, and likely his son, as well.
In November 2017 General Flynn pleaded guilty to lying to the FBI and has since been cooperating with the Special Counsel’s investigation. Last month a federal judge delayed Flynn’s sentencing a second time. Flynn’s lead attorney, Robert Kelner, told the judge, “General Flynn is eager to proceed … when that is possible.”