With the weekend’s reports that special counsel Robert Mueller now has enough evidence to indict former Trump national security adviser Michael Flynn and his son, the strength of a potential obstruction of justice charge against Donald Trump grows. NBC writes:
If the senior Flynn is charged, he would be the first current or former Trump administration official formally accused of criminal wrongdoing by the Mueller team.
So far, the probe has only ensnared campaign officials, and the White House has argued that the connection to the president is minimal. An indictment of the president's former national security adviser and his son would scramble that dynamic.
The big game changer here is that if Flynn is guilty of criminal wrongdoing and the Trump White House was made aware of it (which they potentially were by then-acting Attorney General Sally Yates), then Trump has something to deliberately cover up. Not only was there an 18-day window between when Yates first raised red flags about Flynn's public statements on having no Russia contacts, there's also a very interesting confluence of events during that time period.
Jan. 26, 2017: Yates first briefs White House counsel Don McGahn on Flynn's testimony to the FBI; McGahn reportedly briefs Trump immediately after
Jan. 27, 2017:
- Yates again meets with McGahn—they discuss whether Flynn could be prosecuted
- FBI interviews George Papadopoulos for the first time; he lies about his Russia contacts
- Trump asks then FBI director James Comey for loyalty at a private White House dinner
Feb. 13, 2017: Flynn is forced out as national security adviser
Feb. 14, 2017: Trump presses Comey to drop the investigation of Flynn
We have generally been placing the clues of the investigation in two separate buckets—collusion (or “conspiracy”) and obstruction of justice—and the conventional wisdom in Washington has been that it's often the coverup that ensnares politicians even if the original infraction is of a lesser magnitude. But Just Security reminds us that if there's actual wrongdoing initially, it strengthens the legal jeopardy posed by an obstruction charge.
Here's Alex Whiting writing back in July:
When Trump engaged in his alleged acts of obstruction, did he have a sense that the investigation would ultimately unravel this story that is now emerging? With regard to Flynn, did he know that Flynn’s story was an important piece in the larger picture, one that he did not want revealed? Or did he know that the FBI’s pressure on Flynn could force him to give up other incriminating evidence? Far from simply acting to shield a former subordinate and ally, was Trump actually just trying to protect himself, and those close to him?
If the answer to any of these questions is yes, then Trump’s actions will have a very different feel to them, and his potential defenses much harder, if not impossible, to swallow. Doubts about whether Trump’s actions merit serious consequences could be effectively mitigated. For this reason, it is important to keep an eye on both parts of the investigations, and how they are related. There is no question that the investigators will.