After the shortest tenure as White House national security adviser in history, Michael Flynn faces a legal mess that Washington has not seen in decades, according to legal analysts.
The tangled drama, which will last far longer than his tenure as President Trump’s top security aide, includes uncertainty over what crimes the retired general might have committed, what mechanism exists for him to testify without incriminating himself, how much more light could he shed on the overall investigation into suspected Russian meddling in the presidential election and whether he could name Obama-era officials who targeted him for surveillance.
The president’s abrupt dismissal last week of FBI Director James B. Comey, whose agency was heading the investigation of suspected links between Russia and Mr. Trump’s campaign, has changed the calculus — and potentially the stakes — in talks between the former general’s legal team and lawmakers in Capitol Hill over a potential immunity deal to discover what Mr. Flynn knows.
There is also the issue of the White House versus Mr. Flynn’s attorney — a man whom the national Republican Party has entrusted in the past with its most sensitive investigations. Robert Kelner so disliked Mr. Trump that he once called his supporters “zombies.”
Fired by Mr. Trump for misleading Vice President Mike Pence about his Russian contacts, Mr. Flynn also may have failed to properly report earning about $40,000 from Russia’s state TV channel RT and other payments to his consulting firm from representatives of the Turkish government.
As of Monday, the agencies investigating Mr. Flynn’s dealings include the Pentagon, the FBI, the House and Senate intelligence committees, the Senate Judiciary Committee, and the House Oversight and Government Reform Committee. Hundreds of journalists from around the world and an unknown number of intelligence services also are trying to learn what Mr. Flynn did. Last week, the Senate Permanent Select Committee on Intelligence subpoenaed Mr. Flynn for documents related to its Russia investigation, a rare move for a congressional inquiry.
Late last week, news also emerged that federal prosecutors from the U.S. attorneys office in the Eastern District of Virginia had issued their own subpoenas, these for information related to Mr. Flynn’s business activities after he stepped down as director of the Defense Intelligence Agency in 2014.
What crime, or crimes, Mr. Flynn broke is a subject of debate among Republican and Democratic insiders across Capitol Hill.
“In a public integrity/national security case, when you shoot the king, you shoot to kill,” said Barbara “Biz” Van Gelder, a veteran attorney of multiple congressional investigations. “Which means you have to have a clean case.”
Mr. Flynn’s case looks anything but clean. Evidence unearthed thus far from public hearings and via congressional document requests has found multiple potential violations, including his work representing foreign governments. Shortly after his firing, however, Mr. Flynn retroactively corrected his Foreign Agents Registration Act listing, citing work on behalf of the Russian and Turkish governments, for which he earned roughly a half-million dollars.
The issue caused serious headaches for the White House. But legal analysts say by retroactively acknowledging the mistake, Mr. Flynn could be fined but never criminally charged.
“With FARA cases, when people fail to register, then later register, it generally undercuts the case because they have mitigated the crime before the case is brought,” Ms. Van Gelder said.
Another tricky issue is that Mr. Flynn did not fully disclose his Russian business dealings when he sought to renew his security clearance. According to information obtained by the House Oversight and Government Reform Committee, Form SF-86, which national security employees must complete, failed to disclose Mr. Flynn’s RT payment. Legal analysts say Mr. Flynn can claim this was a mistake.
Mr. Flynn initially claimed he was paid by RT, a state-owned TV station, and not directly by the Russian government.
There is also Article I, Section 9 of the U.S. Constitution — the emoluments clause — which includes a ban on foreign payments to retired military officers.
Legal scholars say that broadly speaking, Mr. Flynn’s indiscretions, if bundled together, could represent a violation of the emoluments clause. However, legal analysts also say the charges are weak and that the clause is hard to decipher and lacks a specific penalty.
At the extreme is the question of treason, with a hypothetical argument that goes along these lines: Mr. Flynn and Russian Ambassador Sergey Kislyak discussed lifting U.S. sanctions against Moscow. Then Mr. Flynn received money.
Host of adversaries
The voices against Mr. Flynn are diverse and aligned.
Last week, former acting Attorney General Sally Q. Yates testified before a Senate committee that she told Trump administration attorneys in late January that Mr. Flynn was at risk of being blackmailed by Russia.
House Oversight and Government Reform Committee Chairman Jason Chaffetz, Utah Republican, and Rep. Elijah E. Cummings of Maryland, the committee’s ranking Democrat, have repeatedly said that they have grave concerns about Mr. Flynn’s actions and that he seems to have committed crimes.
Mr. Flynn’s legal journey could take any number of roads, say lawyers with congressional investigation expertise. Determining what crime he committed is as tricky as predicting whether he will ever testify.
Earlier this year, Mr. Kelner sought an immunity agreement so that Mr. Flynn could testify on Capitol Hill. The request is not without precedent, even in high-profile national security cases. Congress granted Reagan aide Oliver North a type of immunity when he testified about the Iran-Contra affair 30 years ago.
Thus far, congressional investigators have denied Mr. Flynn’s request for immunity. They have subpoenaed documents, and reports say federal prosecutors in Virginia are also after information.
But right now, lawyers say, what Mr. Flynn represents is essentially someone who could give interesting testimony about all his Russians contacts and experiences — or name Obama-era officials who targeted him for surveillance — but will likely not because he could incriminate himself. If Congress wants him to testify and he refuses, they could charge him with contempt.
This would be debated by whichever chamber brought the charges, then voted on, then turned over to the U.S. attorney for the District of Columbia, who could call a grand jury.
Mr. Kelner is a campaign finance, political law and government investigations specialist who will likely play a central role in the drama. A Republican and former speechwriter for Jack Kemp, Mr. Kelner now works with the Washington headquarters of Covington & Burling LLP and is well known on Capitol Hill for his expertise navigating congressional investigations.
Mr. Kelner has described such proceedings as the “Wild West” because they lack a set of defined rules, according to a recent article in the National Law Journal.
Mr. Kelner did not respond to repeated interview requests. But congressional insiders vouch for his credibility and experience with high-profile political clients, including the National Republican Congressional Committee, which hired him last decade to investigate a sensitive embezzling case.
Alongside Rep. Michael K. Conaway, who was the NRCC’s auditing committee chairman, Mr. Kelner helped remedy the issue. Mr. Conaway, Texas Republican, is currently heading the House Permanent Select Committee on Intelligence investigation into Russian hacking.
Mr. Kelner’s “Wild West” experiences also include representing John Lopez, chief of staff to former Sen. John Ensign — the Nevada Republican who resigned in 2011 amid a Senate ethics probe into an affair with an aide’s wife. Mr. Lopez received immunity before becoming a key witness.
Mr. Kelner also helped clear former Rep. Tom Petri, Wisconsin Republican, from an ethics investigation into his business matters.
Lawyers familiar with Mr. Kelner have called him principled and a first-rate defense attorney. He is also no fan of Mr. Trump.
In July, he said on Twitter, “After the November apocalypse, it will fall to those Republicans who opposed Trump (those few) to gather the ashes and rebuild.” The next month, he likened Trump voters to zombies.