By Harry Litman
For the Los Angeles Times
We have now entered the second phase of the Russia probe. In the first, special counsel Robert S. Mueller III and his team, starting from scratch, gathered sufficient evidence to file felony charges against Paul Manafort, Rick Gates and George Papadopoulos.
Phase 1 has given Mueller leverage against higher-level targets, who must be wondering how much the special counsel already knows, and how much he’s about to learn. Careful work may, eventually, enable him to secure evidence against the greatest target of them all: the president. In this second round, Mueller is holding all the cards and has the latitude to play them when and as he chooses.
The initial charges sent a message to the White House and former Trump campaign officials, who had tried to whistle their way past the graveyard, portraying the probe as lacking in substance and likely to be short-lived. The Oct. 30 flurry demonstrated that 1) people will be going to jail for a long time and 2) the probe is unlikely to stop short of the Oval Office. No more talk of fake news.
The sophisticated charges against Manafort and Gates, in particular, also revealed to veteran observers the meticulous professionalism and industry of Mueller’s squad, which is among the most formidable prosecutorial teams ever assembled. Further bad news for Team Trump.
From the public reports of potential criminal activity, it looks as though Mueller has set his immediate sights on no fewer than nine characters in Trump’s orbit: Michael Flynn (father), Michael Flynn (son), Donald Trump Jr., Jared Kushner, Carter Page, Corey Lewandowski, Stephen Miller, Keith Schiller and Sam Clovis. And of course there are possible wild cards that have not come into general public view. (No one anticipated the Papadopoulos indictment.)
Which of these men will next be charged? That depends not only on ease of proof, but also who can be used to induce cooperation among other campaign and administration insiders. My guess is that the Flynns are next on the chopping block.
It is a safe bet, moreover, that already discussions are taking place between Mueller’s team and multiple defense attorneys over terms of possible cooperation.(The announcement last week that former National Security Adviser Michael Flynn’s lawyers no longer are sharing information with President Trump’s legal team may indicate that the senior Flynn is co-operating with Mueller.)
For these targets, Mueller can credibly warn that if they don’t talk first, others will, and their opportunity to receive a sharply reduced sentence will disappear. They are in effect playing an excruciating game of musical chairs in which the last defendants standing will be stuck with nothing but mammoth legal fees and lifelong disrepute.
Consider, for example, Manafort’s position should Mueller next bring charges against Flynn. He and Flynn have overlapping information. Now the two are locked in something like a classic prisoner’s dilemma: If one of them agrees to cooperate, it could sharply reduce the value, and thus the reward, for cooperation by the other. That means Manafort needs to make a decision promptly about whether to talk. And he has to do so knowing that his prospects for an acquittal are slim.
The charges against Flynn, should Mueller bring them, will likely be extensive, including false statements, conspiracy, money laundering and violations of the Foreign Agents Registration Act, all growing out of his illicit and highly profitable dealings with the Turkish government.
Flynn the elder is effectively ruined at this point. He has no professional prospects and the only upside for him would be to stay out of jail. Not so for Flynn the younger, whose reputation is not yet fully tarnished. A conviction would be devastating. If Mueller charges the son, that will put immense pressure on the father — a controversial and arguably mean-spirited maneuver, but one that’s absolutely in the playbook.
The most recent prominent example was the decision to charge the wife of Andrew Fastow in the Enron investigation. The man behind that decision, by the way, was Andrew Weissman, Mueller’s No. 2.
A similar dynamic arises with Donald Trump Jr., whose stumblebum flirtations with WikiLeaks and with Russian figures he believed could provide dirt on Hillary Clinton could give rise to a series of criminal charges. True, Trump Sr. appears to be hermetically self-centered, but he is in his 70s and facing, at best, a failing presidency. What will he do if he knows that his son and namesake could go to prison, forever soiling the Trump brand?
There will be future rounds of the probe in which Mueller’s path will be less smooth. In particular, his team will one day face in the courts a battery of legal and evidentiary arguments crafted by some of the country’s most sophisticated (and expensive) defense lawyers. But for now, Mueller rules.
Harry Litman, a former United States attorney and deputy assistant attorney general, teaches at UCLA Law School and practices law at Constantine Cannon.