Editor’s Note: Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar. The views expressed in this commentary are his own. View more opinion articles on CNN.
Throughout his investigation of Russian interference in the 2016 election, special counsel Robert Mueller has imposed on his team an ironclad rule: nobody leaks and nobody speaks – out of court, that is. But when it comes to official court filings – indictments, plea agreements, sentencing memos – Mueller has been loquacious and at times downright chatty, disclosing in compelling narrative fashion crucial details about his investigation and tantalizing clues about what might happen next.
This week, Mueller is due to make three crucial court filings – sentencing memos for Michael Flynn, Michael Cohen and Paul Manafort. Each document will tell us something important about what the future holds for these defendants and, more importantly, about what Mueller knows and where he might be headed. By the end of this week, we will know much more about the strength of Mueller’s hand and the threat his investigation poses to President Donald Trump and his administration.
Ever since his December 2017 guilty plea, Flynn has been something of a mystery man. Trump’s former national security adviser, Flynn pleaded guilty to lying to the FBI about his contacts with Russian ambassador Sergey Kislyak. Flynn falsely told the FBI he had not asked Kislyak to refrain from escalating the situation in response to sanctions that the outgoing Obama administration had imposed on Russia.
Flynn pleaded guilty via a cooperation agreement, which means that Mueller now knows everything that Flynn knows. Yet Mueller has not made any moves or brought any new charges that are obviously based on Flynn’s cooperation.
The only clue we have gotten is that Mueller has postponed Flynn’s sentencing four times. Mueller has explained to the court that the postponements were necessary “due to the status of the special counsel’s investigation.” Translation: we are still using Flynn as a cooperator against somebody. Flynn’s attorney added further intrigue, announcing that “General Flynn certainly has a story to tell, and he very much wants to tell it, should the circumstances permit,”
Now we should finally hear that story. Flynn is set for sentencing on December 18, and Mueller’s sentencing memo is due this Tuesday, December 4. That submission should answer one fundamental question about Flynn: what the heck has this guy been up to? Does Flynn, who held high-level positions in the campaign and administration, know about crimes committed by members of Trump’s team? Did Flynn consult with Trump or others on his conversations with Kislyak about Russian sanctions, or about Flynn’s false statements to the FBI about those sanctions? Did Flynn speak with Trump about other foreign policy issues, and were Trump’s positions ever improperly influenced? Has Mueller used Flynn’s information in bringing charges against any others, or might we see additional charges forthcoming?
One thing is certain: much of the mystery surrounding Flynn, and his cooperation with Mueller, is finally about to be solved.
Cohen’s sentencing memo, filed last week in the Southern District of New York (“SDNY”), lobbed two grenades in Trump’s direction – one right at him and another close by. The direct hit came in Cohen’s assertion that he “participated in planning discussions” with Trump regarding hush money payments to Stephanie Clifford and Karen McDougal, and that Cohen paid Clifford “in coordination with and at the direction of” Trump (as Cohen previously stated under oath when he pleaded guilty in August to campaign finance violations).
If true – and the Wall Street Journal recently published an investigative piece containing extensive corroboration for Cohen’s contentions – then Trump almost certainly participated in a violation of federal campaign finance law. When Cohen pleaded guilty, White House Press Secretary Sarah Sanders said “the President in this matter has done nothing wrong, and there are no charges against him.”
The indirect damage arises from Cohen’s assertion in the memo that he lied to Congress about the timing of Trump’s efforts to build a tower in Moscow “to support and advance (Trump’s) political messaging.” Cohen claims that he “remained in close contact with White House staff and counsel to (Trump)” about the Moscow project and his testimony to Congress. Cohen stops short of saying that he lied at Trump’s direction or that he discussed his false testimony with Trump. Nonetheless, Cohen’s false testimony to Congress poses political problems for Trump (who repeatedly and falsely denied that he had business dealings with Russia during a time when he plainly did, according to Cohen) and criminal problems for anyone in the White House who advised or encouraged Cohen to testify falsely. Anyone else who testified falsely to Congress about the timing of the Moscow project could be in Mueller’s line of fire as well.
The big question remaining is whether Mueller will agree with Cohen’s account of his own conduct. The smart bet is that he will. Cohen’s lead attorney, Guy Petrillo, is a widely respected veteran of the SDNY with an impeccable reputation for candor. (Disclosure: Petrillo was a colleague and supervisor of mine at the SDNY). Petrillo knows how the cooperation process works; there is little chance he would make an assertion in a sentencing memo to a stern judge unless he knew that prosecutors would sign onto it.
If Mueller and the SDNY do concur with Cohen’s version of the facts – particularly on the campaign finance violation – then we will have, officially, federal prosecutors stating on the record that the President has committed a federal offense – causing an unlawful corporate campaign contribution and excessive campaign contribution.
This one should be the main event. Last week, Mueller dropped a bombshell when he notified a federal judge that Manafort had breached his cooperation agreement by lying repeatedly to federal prosecutors and agents “on a variety of subject matters.” Mueller told the judge he would “file a detailed sentencing submission … in advance of sentencing that sets forth the nature of the defendant’s crimes and lies, including those after signing the plea agreement.”
Mueller is due to file that sentencing memo by Friday, December 7, and it promises to be a barnburner. Mueller has promised to lay it all out: the specifics of Manafort’s lies and the proof establishing the truth of the underlying matters. We do not yet know specifically what Manafort lied about, but we will learn this week.
Based on my own experience as a federal and state prosecutor, cooperators most often get in trouble because they lie by omission. They leave out facts that would incriminate themselves, or others they want to protect. Cooperation in the federal system typically is all-or-nothing. Cooperators do not get to pick and choose what information they provide to prosecutors, or who they cooperate against – and when they try to do so, the cooperation blows apart.
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Here, Manafort might have lied in an effort to protect himself. He might have illicit money stashed away that he did not want to turn over to Mueller, or he might have committed other crimes that he did not want to admit. Both are common scenarios.
Manafort also likely failed to tell Mueller about crimes that other people committed. Cooperators do this for various reasons: personal or familial relationships, fear of reprisal, or a belief that they will be rewarded. By lying to Mueller, Manafort took a reckless gamble and put himself in a tenuous position. At 69 years old, he now faces a sentence likely to keep him locked up for the rest of his life. Whoever Manafort tried to protect, he believed it was worth it to take the risk of dying behind bars (or – perhaps – that that person might pardon him).
We know that Mueller knows Manafort lied, and we know that Mueller will prove those lies to the court “in detail” in his filing this week. We soon should know who Manafort tried to protect, what crimes those people committed with Manafort (or to Manafort’s knowledge), and what proof Mueller has of those crimes. This is going to get interesting, and soon.