No matter what Flynn says, the Trump family won’t go to jail

Posted at 5:45 PM, Dec 02, 2017
and last updated 2017-12-02 19:53:03-05

By Page Pate, CNN Legal Analyst

When Michael Flynn walked into a federal courthouse in Washington and entered into a plea and cooperation deal, some people thought this marked the beginning of the end for Donald Trump’s presidency. Could Flynn be the man to take down this President, and maybe even send him to jail?

There is little doubt that the Office of Special Counsel has been busy. We knew Robert Mueller and his team was aggressively dropping grand jury subpoenas to gather evidence, and interviewing both major and minor players in the Russia investigation drama that continues to unfold. And now, with the criminal indictments of several Trump confidants, we know that the special counsel’s work is bearing fruit.

But where does this all end? Will Flynn’s cooperation lead to criminal charges against Trump or a member of his family? While we don’t know what Flynn has said or will say as he cooperates with Mueller’s investigation, there is no reason to believe that Trump or anyone related to him will ever face prison time.

Considering what Flynn has admitted lying about, it is certainly conceivable that Trump or a very senior member of his team told Flynn to make contact with the Russians before Trump was sworn in. If he did, that itself may be a crime under the much maligned (but still on the books) Logan Act, a law that makes it a crime for anyone to negotiate with a foreign government in connection with a dispute relating to the US, unless they have the official authority to do so. In Flynn’s case, that means that you can’t act like you are the national security adviser until you actually are the national security adviser.

Even if Mueller isn’t interested in a Logan Act violation, he won’t ignore people lying to his team during this investigation. In this case, Flynn may have lied to protect himself and others from a Logan Act charge. If so, the cover-up may have been worse than the crime.

Around the time that Trump asked former FBI Director James Comey about “letting Flynn go,” I wrote that Flynn should be given immunity so we could learn what he knew. I thought that Flynn’s access to senior-level campaign and transition officials would be well worth the price of giving him a pass.

But a plea deal is so much better. It establishes a factual basis for criminal conduct, admitted by one of the participants. It also makes Flynn a much more effective, and credible, witness against anyone else involved. He has admitted that this conduct was wrong, and he has to face at least some consequences for it. That makes it harder to attack his credibility than if he got an immunity deal.

Will other charges be announced by the special counsel before the end of the year? Possibly, but I don’t think it will be an indictment against the President. There is a debate among constitutional scholars about whether a sitting President can even be indicted, and the logistics of actually prosecuting a President while in office makes it unlikely it will happen. Even if Mueller were willing to go after the President, Trump may be able to simply pardon himself and avoid prosecution.

But what about Jared Kushner and Donald Trump Jr.? If there is evidence that one or both of them broke the law, can’t they be charged? Yes, they can. They can be indicted, prosecuted, convicted, and sent to jail like the rest of us. But they won’t be. Trump would never let that happen to his family. While there is a strong legal argument that Trump may not be able to pardon himself, there is no question that he can pardon his kids and anyone else he wants to.

The possibility that Trump may pardon a family member doesn’t seem so farfetched now. One commentator has suggested that Kushner could be the next shoe to drop in this investigation. Based on what we learned from Flynn’s plea, there is a strong possibility that Kushner has some serious legal exposure.

If Kushner asked Flynn to contact the Russians on the issue of vetoing the Israeli resolution, for example, he may have violated the Logan Act. He has also made numerous statements to Mueller’s team and congressional staffers during this investigation, presumably including what he and Flynn discussed during the transition period. Of course, we don’t know what Flynn has said or will say to the special counsel, so any discussion of what Kushner may have done is only speculation. But Mueller’s team may uncover evidence that Kushner was somehow involved in obstructing the investigation in other ways, or making false statements himself.

Trump Jr. seems to have had nothing to do with any calls to the Russian ambassador, but he was present at a questionable meeting, and made some statements about that meeting that may be inconsistent with what Flynn has said.

Regardless of what Kushner or Trump Jr. may be facing, the fact is that they have no real incentive to cooperate with the special counsel. They know that whatever may happen in this investigation, they have a pardon in their back pocket as long as they call the President, “Dad.”

Unlike Kushner or Trump Jr., however, Flynn had to cut a deal. Flynn was likely facing more serious charges relating to financial dealings, and the possibility of actual prison time was real. Trump could have thrown him a lifeline by giving him a pardon before he had to plead guilty.

But Flynn is not family, and the possible political and legal consequences of pardoning him must have outweighed whatever sense of loyalty Trump felt toward Flynn. He may have had no problem asking Comey to let him go, but issuing a pardon was apparently more than Trump was willing to do.

The only way Flynn’s guilty plea will directly affect Trump or his immediate family is if Congress decides that enough is enough and moves towards impeachment. Perhaps, as we learn more about the details of what happened during the campaign and transition period, that may actually occur. But the Republicans are in control of Congress right now and, given the way they have dealt with the other ethical and moral lapses from this White House, I wouldn’t hold my breath.

Flynn has made his deal and he may indeed have an interesting story to tell. But I don’t see it taking down this President, or his family, anytime soon.